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Hammer & Steel, Inc. v. Sky Materials Corp.

United States District Court, E.D. Missouri, Eastern Division

October 24, 2019

HAMMER & STEEL, INC., Plaintiff,
v.
SKY MATERIALS CORP., Defendant.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         Beginning 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.

         From 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.

         It 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.

         In 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.

         There 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 law.

         Undisputed Material Facts

         On July 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.

         The 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).

         The 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 4).

         The 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).

         Summary Judgment Standard

         The 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.

         To 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 ...


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