United States District Court, E.D. Michigan, Southern Division
Steven Whalen Mag. Judge.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
E. LEVY UNITED STATES DISTRICT JUDGE.
is defendant Cornerstone Interior Woodworking, Inc.'s
motion for summary judgment, seeking summary judgment on all
counts. (Dkt. 17.) The motion was filed on November 30, 2017,
and plaintiff's response was due on December 21, 2017.
E.D. Mich. Local R. 7.1(e)(1)(B). The Court has attempted to
reach plaintiff on numerous occasions, and plaintiff's
counsel represented to the Court on January 2, 2018 that he
would reach out to defense counsel and seek a stipulation
extending the time to file plaintiff's response. The
Court has received no stipulation, and so will treat the
motion as unopposed.
April 12, 2016, plaintiff EBMG, LLC filed a complaint
alleging that defendant Cornerstone Interior Woodworking, LLC
breached a series of contracts regarding five construction
projects. (Dkt. 1.) Plaintiff amended that complaint on
November 8, 2016, to add defendant Cornerstone Interior
Woodworking, Inc. (Dkt. 14.) Defendant Cornerstone Interior
Woodworking, Inc. notes that Cornerstone Interior
Woodworking, LLC does not appear to exist, and seeks
dismissal of that defendant. The Court will dismiss
Cornerstone Interior Woodworking, LLC as a defendant.
complaint alleges that plaintiff was a subcontractor for
defendant on five construction projects between April 2014,
and December 2015. Plaintiff was to provide custom
countertops and cabinets for projects in Lake Nona (Florida),
Music Row (Tennessee), UNCC (North Carolina), Hamilton Trace
(Indiana), and Summer Bay (Florida). Plaintiff alleged that
defendant owed an outstanding amount of $607, 123.48 from
those five projects. Plaintiff asserted claims for (1) breach
of contract, (2) open account; (3) quantum meruit; (4)
implied contract; and (5) fraudulent misrepresentation.
filed a counterclaim, alleging that the products plaintiff
delivered for each project were defective, and that it
incurred damages of $621, 470.91 after mitigation. (Dkt. 14.)
Defendant asserted counterclaims for: (1) breach of contract;
(2) breach of warranty; and (3) quantum meruit. On November
30, 2017, defendant filed a motion for summary judgment as to
all claims in this case. (Dkt. 17.)
the terms of the contracts between the parties, plaintiff was
to be paid a total of $1, 300, 432.47 for the five projects.
(Dkt. 17-4 to 17-9.) In March 2015, plaintiff delivered
numerous defective cabinets and other goods to defendant for
the Lake Nona and UNCC projects after beginning production
before defendant was able to provide an approved design.
(Dkt. 17 at 12-13.) On March 14 and March 16, 2015, defendant
contacted plaintiff to inform plaintiff that the cabinets and
countertops were defective and unusable. (Id. at 13;
Dkt. 17-12, to 17-14.) Larry Grace, an employee of plaintiff,
sent an e-mail on March 18, 2015, informing his employees
that the cabinets and countertops provided for these two
projects all needed to be rebuilt. (Dkt. 17-15.)
9, 2015, defendant sent plaintiff invoices for back charges
(charges that defendant incurred fixing the issues with the
defective items) in the amount of $148, 572.56. (Dkt. 17-18.)
On July 9, 2015, defendant notified plaintiff that there were
problems with all five projects. (Dkt. 17-16.) Defendant
provided plaintiff with invoices for the total cost it
incurred in fixing deficiencies at all five projects, which
totaled $621, 470.91. (Dkts. 17-19 to 17-23.)
$1, 300, 432.47 that plaintiff was owed for its work,
defendant paid $1, 170, 795.64 directly to plaintiff, and
paid $72, 800.00 to one of plaintiff's subcontractors.
(Dkts. 17-24, 17-25.) The parties also agreed to reductions
in the scope of work for two projects that led to a total
reduction of $99, 779.00. (Dkt. 17-27.) Those deductions,
combined with the unpaid back charges sent to EBMG, result in
EBMG being owed a total of $1, 052, 080.91 for its work, and
being paid a total of $1, 243, 595.64, either directly or
through a subcontractor.
now moves for summary judgment on all counts in the complaint
and the counterclaim. The Court determines that oral argument
is not required pursuant to E.D. Mich. Local R. 7.1(f)(2).
judgment is proper when “the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The Court may not grant summary judgment if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
“views the evidence, all facts, and any inferences that
may be drawn from the facts in the light most favorable to
the nonmoving party.” Pure Tech Sys., Inc. v. Mt.
Hawley Ins. Co., 95 F.Appx. 132, 135 (6th Cir. 2004)
(citing Skousen v. Brighton High Sch., 305 F.3d 520,
526 (6th Cir. 2002)).
where a motion for summary judgment is unopposed, “the
Federal Rules of Civil Procedure still require the moving
party to demonstrate the absence of a disputed question of
material fact and a ground that would entitle the moving
party to judgment as a matter of ...