United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
in the summer of 2017 Plaintiff Hammer & Steel, Inc.
leased and sold construction machinery to defendant Sky
Materials Corp. By the time Sky returned the last of the
rented equipment in the summer of 2018, it owed Hammer over
half a million dollars that it refused to pay. Hammer filed
this case seeking monies owed under the invoices, together
with interest and attorneys fees allowed by the contracts.
the beginning of this case, Sky asserted that it had kept the
equipment all that time only because Hammer repeatedly asked
it to do so. Although Hammer has always denied that it ever
asked Sky to keep the equipment or that it agreed Sky did not
have to pay the amounts due, this certainly sounds like a
good defense if it could be proved to a jury at a trial. All
that would be needed would be testimony by whoever had these
conversations with Hammer, providing some basic details such
as what Hammer representative made these multiple requests,
and providing any documentation that Sky had about the
alleged agreement. Given Hammer's denials that the
conversations took place, it would be a classic fact issue
for a jury.
turns out that Sky has absolutely no admissible evidence to
support this defense, although Sky continues to assert it.
No. Sky witness has testified to actually participating in
such a conversation with Hammer. All Sky witnesses pointed to
one another as the persons who had the conversations, but
when questioned these witnesses all denied (or could not
recall) having these conversations. As no witness actually
remembers any actual conversations, Sky can't recall who
at Hammer allegedly asked it to keep the equipment without
paying for it, but it points to some of Hammer's
employees who, it says, it must have spoken to about this
because they were the people at Hammer that Sky dealt with.
But these Hammer employees deny that such conversations ever
took place. Sky also has no documents supporting the alleged
agreement. Sky asserts that this “somebody told
somebody something” argument presents a genuine dispute
of material fact for trial.
response to an early summary judgment motion filed by Hammer,
Sky's president provided an affidavit “on my own
personal knowledge” averring to all sorts of details
about what Sky and Hammer said on this issue. In his
deposition, however, the president claimed not to recall the
affidavit at all, later admitted it looked like his
signature, and stated that he had no recollection of any
conversation or details. All he knew was that there had been
“some conversations” about what to do with the
equipment. When asked who had the conversations, he did not
say he had them himself but stated instead that he
“would have to look into it” and listed other Sky
people he would ask. However, none of those people he listed
actually testified that they were part of the alleged
conversations with Hammer. Now, in response to Hammer's
second summary judgment motion, Sky argues that the president
can testify that he himself had the conversations.
is no admissible evidence that anyone from Hammer ever told
Sky to keep the equipment without paying for it. Under the
uncontroverted evidence presented by Hammer, Sky breached the
contract and Hammer is entitled to judgment as a matter of
20, 2017, plaintiff Hammer & Steel, Inc. leased to
defendant Sky Materials Corp. a Comacchio Tieback Machine
Model MC 14 (MC 600P), a Eurodrill RH 17X, and a Percussion
Unit for the RH 17X at the monthly rental rate of $18,
000.00, plus taxes and transportation to and from the
construction site. (Doc. 5-1). On September 26, 2017, Hammer
leased to Sky a Delmag RHV 40 Hydraulic Drilling Machine, a
Delmag BT 400-2/495 Rotary Head, and a Kelly Bar K495/3-27
480 mm at the rate of $40, 000.00 per month, plus taxes and
transportation to and from the construction site. (Doc. 5-4).
On October 24, 2017, Hammer leased a Comacchio Tieback
Machine Model MC 28 HD, Eurodrill RH 17X, and a Eurodrill RH
4300 to Sky at the rate of $24, 000.00 per month, plus taxes
and transportation to and from the construction site. (Doc.
5-3). On November 27, 2017, Hammer sold Sky a SIP & T
Automatic Casing Twister 750 mm for $12, 445.00, plus taxes.
(Doc. 5-2). In December of 2017 and January of 2018, Hammer
sold Sky various parts for equipment leased and owned by Sky
in the total amount of $11, 127.28. (Doc. 88-1 at 2). Hammer
sent invoices for all equipment and parts, whether leased or
sold, to Sky.
Comacchio Tieback Machine Model MC 14 (MC 600P) was shipped
from Hammer's equipment yard in New Jersey on July 31,
2017 and returned to Hammer at the same location on January
11, 2018. (Doc. 74-1 at 1). The Comacchio Tieback Machine
Model MC 28 HD was shipped from Hammer's equipment yard
in New Jersey on October 31, 2017 and returned to Hammer at
the same location on December 28, 2017. (Doc. 74-1 at 1). The
Delmag RHV 40 Hydraulic Drilling Machine was shipped from
Hammer's equipment yard in New Jersey on October 23,
2017, and returned to Hammer at the same location on June 22,
2018. (Doc. 74-1 at 4).
lease agreements provide that “the rental period shall
begin on and include the date of shipment to [defendant] and
shall end on and include the date of return to
[plaintiff's] warehouse or designated place of
return.” (Doc. 5-1 at 2, 5-3 at 2, 5-4 at 2). They
further state that “no allowances will be granted due
to non-working time caused by factors such as bad weather,
holidays, strikes, or other delays in the job over which
[plaintiff] has no control. No. allowances will be granted
due to equipment down-time for routine parts
replacement.” (Doc. 5-1 at 2, 5-3 at, 5-4 at 2).
According to the terms of the lease agreements, either Hammer
or Sky “may terminate this agreement at any time, by
written notice, for failure of the other party to comply with
any of its terms and conditions.” (Doc. 5-1 at 3, 5-3
at 3, 5-4 at 3). Finally, in the event of litigation, the
lease agreements require Sky to pay Hammer's reasonable
attorneys' fees and expenses incurred in connection with
collecting amounts due and owing. (Doc. 5-1 at 4, 5-3 at 4,
5-4 at 4). They also provide for pre-judgment interest at one
and one-half percent per month, compounded monthly, on all
unpaid amounts. (Doc. 5-1 at 4, 5-3 at 4, 5-4 at 4).
Post-judgment interest at the same rate is also included.
(Doc. 5-1 at 4, 5-3 at 4, 5-4 at 4). The agreements are
governed by Missouri law. (Doc. 5-1 at 4, 5-3 at 4, 5-4 at
total amount unpaid on the invoices (after allowing credit
for partial payments) is $526, 966.78. (Doc. 88-3 at 4). As
of October 24, 2019, pre-judgment interest, calculated under
the terms of the leases, in the amount of $173, 660.41 has
accrued. (Doc. 88-3 at 4).
standard for summary judgment is well settled. In determining
whether summary judgment should issue, the Court must view
the facts and inferences from the facts in the light most
favorable to the nonmoving party. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Littrell v. City of Kansas City, Mo., 459
F.3d 918, 921 (8th Cir. 2006); Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005). The moving
party has the burden to establish both the absence of a
genuine issue of material fact and that it is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Enterprise Bank v. Magna Bank of Missouri, 92 F.3d
743, 747 (8th Cir. 1996). Once the moving party has met this
burden, the nonmoving party may not rest on the allegations
in its pleadings but by affidavit or other evidence must set
forth specific facts showing that a genuine issue of material
fact exists. Fed.R.Civ.P. 56(c); Anderson, 477 U.S.
at 256; Littrell, 459 F.3d at 921; United of
Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791 (8th
Cir. 2006). An issue of fact is genuine when “a
reasonable jury could return a verdict for the nonmoving
party” on the question. Anderson, 477 U.S. at
248; Woods, 409 F.3d at 990.
survive a motion for summary judgment, the “nonmoving
party must substantiate his allegations with sufficient
probative evidence that would permit a finding in his favor
based on more than mere speculation, conjecture, or
fantasy.” Putman v. Unity Health System, 348
F.3d 732, 733-34 (8th Cir. 2003) (internal quotation marks
and alterations omitted). “The mere existence of a
scintilla of evidence in support of the [nonmoving
party's] position will be insufficient; there must be
evidence on which the jury could reasonably find for the
[nonmoving party].” Anderson, 477 U.S. 242 at
252; Davidson & Associates v. Jung, 422 F.3d
630, 638 (8th Cir. 2005). “Mere allegations,
unsupported by ...