In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1990

DEERE & COMPANY, a Delaware

corporation, and FUNK

MANUFACTURING COMPANY,

a Kansas corporation,

Plaintiffs-Appellants,

v.

OHIO GEAR, a South Carolina

corporation, and REGAL-BELOIT,

a Wisconsin corporation,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 02 C 4011—Joe Billy McDade, Judge.

____________

ARGUED NOVEMBER 29, 2005—DECIDED AUGUST 29, 2006

____________

Before MANION, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. This diversity action involves a

contract dispute over tractor parts supplied by defendant

Ohio Gear to plaintiffs Deere & Company and Funk

Manufacturing Company (collectively “Deere”). Deere seeks

millions of dollars in replacement and repair costs plus

consequential damages flowing from Ohio Gear’s provision

of tractor parts that Deere claims contained defective

washers. The district court granted summary judgment for
2 No. 05-1990

Ohio Gear because the action was commenced after a

contractual one-year limitations period had expired. Deere

argues on appeal that the district court abused its discretion in granting Ohio Gear’s summary judgment motion

before Deere completed expert discovery and filed a response. Deere also argues that the district court erred by

applying the contractual one-year limitations period.

We reverse. Because of ongoing discovery disputes over

expert witnesses, Deere asked the district court for an

enlargement of time to take expert witness discovery and

respond to Ohio Gear’s motion for summary judgment. The

court granted the motion. Ohio Gear, however, was

unable to comply with the new expert witness discovery

deadline and moved the court for an extension of time to

produce its experts for deposition. That motion went

undecided for several months. As a consequence, Ohio

Gear’s experts were not deposed and Deere’s deadline to

respond to Ohio Gear’s summary judgment motion came

and went without a response. Without addressing the

pending discovery dispute, the district court then treated

Deere’s failure to respond to the summary judgment motion

as an admission (invoking its local court rule) and granted

summary judgment for Ohio Gear. Under the procedural

circumstances of this case, this was an abuse of discretion.

We vacate the summary judgment and remand the case for

further proceedings.

I. Background

The business relationship between Deere and Ohio Gear

began with something the parties call the “Clark transaction,” a February 1997 deal in which Deere purchased ringand-pinion sets from Ohio Gear. Deere initiated the Clark

transaction by requesting a price quotation from Ohio Gear,

and Ohio Gear replied by issuing a written quotation

containing its pricing and standard terms and conditions.
No. 05-1990 3

Ohio Gear’s terms and conditions included:

1. AGREEMENT AND LIMITATIONS. . . . Seller

objects to and shall not be bound by additional or

different terms whether printed or otherwise in Buyer’s

purchase order or in any other Communication from

Buyer to Seller. Such additions and differences in terms

shall be considered material and Seller’s terms and

conditions shall govern.

. . . .

21. GOVERNING LAW AND LIMITATION. (a) . . .

Any action for breach of the Sales Contract must be

commenced within one (1) year after the cause of action

has accrued and all such claims shall be barred thereafter notwithstanding any statutory period of limitations

to the contrary.

Deere accepted Ohio Gear’s offer by issuing a written

purchase order confirming the quantity and price, and

stating Deere’s own standard terms and conditions. The

relevant terms included on Deere’s purchase order were:

2. Acceptance. . . . If this Order constitutes an acceptance of an offer, such acceptance is expressly made

confidential [sic] on Vendors [sic] assent to the terms of

this Order, and shipment of any part of the goods

covered hereunder shall be deemed to constitute such

assent.

. . . .

9. Non-waiver. The failure of the Buyer to insist upon

strict performance of any terms and conditions hereof,

or failure to delay or exercise any rights or remedies

provided herein or by law . . . shall not release Vendor

of any of the warranties or obligations of this Order,

and shall not be deemed a waiver of any right of

Buyer . . . of its rights and remedies as to any such

goods.
4 No. 05-1990

In November 1997 Kevin Kleman, a supply manager at

Deere, telephoned Gary Justice, Ohio Gear’s general manager, and invited Justice to quote a price at which Ohio

Gear could supply differential assemblies for the transmission in Deere’s new line of tractors. Deere gave Ohio Gear

its design specifications, and on November 24 Justice sent

a letter to Kleman quoting a price for ring-and-pinion sets

(a subpart of the differential assembly). Justice stated

in his offer letter: “The same terms and conditions apply

as our current business with you.” The “current business”

was the Clark transaction. Two days later Justice sent

another letter to Kleman that quoted prices for the entire

differential assembly. This November 26 letter again

advised Kleman that Ohio Gear’s standard terms and

conditions would apply: “As before, our normal terms and

conditions apply.” Kleman testified at his deposition that he

understood Ohio Gear’s references to the “same” or “normal”

terms and conditions to mean the terms that governed the

parties’ Clark transaction.

Justice and Kleman met in person on December 5 and

agreed on the essential terms under which Ohio Gear would

provide the differential assemblies for Deere’s new tractors.

At this meeting Kleman gave Justice a “verbal” purchase

order that Kleman said was “a commitment for [Ohio Gear]

to move ahead.” Justice said that they concluded the

meeting with a handshake, and that he told Kleman

something to the effect of: “As always, the same terms and

conditions.” Kleman did not recall whether they shook

hands or if Justice mentioned anything about the “same

terms and conditions.” On December 18 Kleman followed up

on his verbal purchase order by sending a written purchase

order to Ohio Gear. Handwritten on the front of the December 18 purchase order were the words, “confirming PO with

Gary Justice 12/5/1997”; Deere’s standard terms and

conditions were printed on the back.
No. 05-1990 5

Ohio Gear manufactured the differential assemblies,

shipped them to Deere, and Deere used them in its tractors.

In early 1999 Deere’s customers started complaining that

their tractors were malfunctioning. Deere investigated the

complaints and discovered that Ohio Gear had used

nonheat-treated washers in some of the differential assemblies, contrary to Deere’s manufacturing specifications. Ohio

Gear offered to repair the differential assemblies but denied

responsibility for Deere’s recall costs, lost profits, and other

consequential damages. Deere declined Ohio Gear’s offered

remedy, repaired the assemblies itself, and filed this suit

against Ohio Gear on February 4, 2002.

The litigation was protracted and marked by numerous

discovery disputes and requests for continuances and

extensions, taking nearly three years to reach the eventual

summary judgment disposition. Battles over the timeliness and adequacy of Deere’s disclosures regarding its

damages expert were particularly contentious. By the

summer of 2004, the testimony of Deere’s damages expert

had been barred as a sanction for discovery violations, and

discovery and dispositive motion deadlines were reset for

July 19 and August 9, 2004, respectively. Ohio Gear filed a

timely motion for summary judgment on August 9; Deere

filed its own summary judgment motion late, on August 10.

(The district court did not strike Deere’s motion as untimely, however.)

On September 13 Deere moved to reopen expert witness discovery and, correspondingly, for an extension of

time to respond to Ohio Gear’s summary judgment motion.

Deere asked for these extensions because it had not deposed

Ohio Gear’s two damages experts; it had previously moved

to strike those experts’ disclosures and testimony and that

motion had not yet been decided by the district court.

On October 6 the district court issued an order modifying in part its prior order barring Deere’s damages expert
6 No. 05-1990

1 C.D. ILL. R. 7.1(D)(2) provides: “Within 21 days after service of

a motion for summary judgment, any party opposing the mo-

(continued...)

and reopening discovery for the limited purpose of allowing the experts to be deposed “on or before October 22.” The

court also extended Deere’s deadline to respond to Ohio

Gear’s summary judgment motion to November 5. On

October 8 Ohio Gear’s counsel told Deere’s counsel that

because of scheduling conflicts he could not produce Ohio

Gear’s damages experts by the new October 22 deadline but

could do so on October 25, 26, or 27. Deere’s counsel

initially agreed to take the depositions on October 25 and

26 but then changed course, advising Ohio Gear that

although he was available on those dates, he had been

“instructed not to agree to the same without an order

from the court in light of how [the court] ruled on the

discovery violations.”

Accordingly, on October 13 Ohio Gear moved for a further

extension of the expert discovery deadline. Deere filed a

response opposing any further extension of time for expert

discovery. Deere did not, however, seek an extension of its

November 5 deadline to respond to Ohio Gear’s summary

judgment motion in light of the deposition scheduling

dispute; that deadline passed without any responsive filing

by Deere. On November 10 the district court entered a “text

order” vacating the previously scheduled final pretrial

hearing and trial dates; this order advised the parties that

the court would reset these events “after the Court rules on

the pending summary judgment motions.” In the meantime,

Deere filed additional requests for relief stemming from the

protracted dispute over each side’s expert witnesses.

The court ruled on the summary judgment motions on

February 3, 2005, granting Ohio Gear’s and denying

Deere’s. Citing Local Rule 7.1(D)(2),1

 the district court
No. 05-1990 7

1 (...continued)

tion shall file a response. A failure to respond shall be deemed

an admission of the motion.”

2 Deere does not appeal the district court’s denial of its own

summary judgment motion.

observed that “[p]laintiffs have not responded although they

were given an extension of time to do so and have not

requested additional time to respond. . . . Since plaintiffs

have not responded, any facts submitted in support of

Defendants’ Motion for Summary Judgment will be deemed

admitted.” The district court then held that the

uncontroverted evidence showed the one-year limitations period contained in Ohio Gear’s quote form governed

the action; because the suit was commenced after the

expiration of this one-year period, it was untimely. The

court also denied as moot all other accumulated motions.

The district court denied Deere’s subsequent request for

relief under Federal Rules of Civil Procedure 59(e) and

60(b), and Deere took this appeal.2

II. Discussion

We review a district court’s summary judgment ruling

de novo. Velez v. City of Chi., 442 F.3d 1043, 1047 (7th Cir.

2006). A party is entitled to summary judgment when,

viewing the pleadings and record evidence in the light most

favorable to the nonmoving party, “there is no genuine issue

as to any material fact and . . . the moving party is entitled

to a judgment as a matter of law.” FED. R. CIV. P. 56(c);

Velez, 442 F.3d at 1047 (citing Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986)). The district court’s decision to rule

on Ohio Gear’s summary judgment motion in the absence of

a response from Deere is reviewed for abuse of discretion.

Grayson v. O’Neill, 308 F.3d 808, 815-16 (7th Cir. 2002).
8 No. 05-1990

3 “Should it appear from the affidavits of a party opposing the

motion that the party cannot for reasons stated present by

affidavit facts essential to justify the party’s opposition, the court

may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to

be taken or discovery to be had or may make such other order

as is just.” FED. R. CIV. P. 56(f).

Deere first argues that we should reverse the district

court’s summary judgment order because the district judge

ruled prematurely, before Deere could depose Ohio Gear’s

damages experts and respond to Ohio Gear’s summary

judgment motion. When a party thinks it needs additional

discovery in order to oppose a motion for summary judgment in the manner Rule 56(e) requires, Rule 56(f) of the

Federal Rules of Civil Procedure provides a simple procedure for requesting relief: move for a continuance and

submit an affidavit explaining why the additional discovery

is necessary.3 Farmer v. Brennan, 81 F.3d 1444, 1449 (7th

Cir. 1996) (“When a party is unable to gather the materials

required by Rule 56(e), the proper course is to move for a

continuance under Rule 56(f).”). A Rule 56(f) motion must

state the reasons why the party cannot adequately respond

to the summary judgment motion without further discovery

and must support those reasons by affidavit. FED. R. CIV. P.

56(f); Grayson, 308 F.3d at 816 (citing Kalis v. ColgatePalmolive Co., 231 F.3d 1049, 1058 n.5 (7th Cir. 2000)).

Deere should have filed a Rule 56(f) motion when it

became clear that the parties’ expert witness deposition

dispute was not going to be resolved prior to the expiration

of its extended deadline to respond to Ohio Gear’s summary

judgment motion. To recap, on September 13, 2004, Deere

filed what it called a Motion for Further Testimony under

Rule 56(e). In that motion Deere informed the district court

that Ohio Gear had not produced its damages experts for

depositions and asked for an extension of the discovery
No. 05-1990 9

deadline to allow it to depose these experts before responding to Ohio Gear’s summary judgment motion. The court

responded with an order entered October 6 that extended

the deadline for taking expert depositions to October 22 and

gave Deere until November 5 to respond to Ohio Gear’s

summary judgment motion. Ohio Gear moved on October 13

for even more time to produce its damages experts, citing

scheduling conflicts. Deere opposed that motion but did not

file a Rule 56(f) motion asking for a continuance of its

summary judgment response deadline in light of the

ongoing expert witness discovery problems.

Deere apparently proceeded on the assumption that

the district court would decide Ohio Gear’s October 13

motion regarding the experts’ deposition schedule before

requiring it to respond to Ohio Gear’s summary judgment

motion. This was a risky assumption. Deere took the chance

that the court would do exactly what it did: apply Local

Rule 7.1(D)(2) and deem Deere’s failure to respond to Ohio

Gear’s summary judgment motion an admission of the

motion.

Having said that, however, under the particular procedural circumstances of this case, the district court’s invocation of Local Rule 7.1(D)(2) was an abuse of discretion. It is

of course true that district courts have broad discretion to

manage their dockets and that local procedural rules are

important case management tools. Koszola v. Bd. of Educ.

of the City of Chi., 385 F.3d 1104, 1109 (7th Cir. 2004)

(“ ‘[W]e have emphasized the importance of local rules and

have consistently and repeatedly upheld a district court’s

discretion to require strict compliance with its local rules

governing summary judgment.’ ”) (quoting Metro. Life Ins.

Co. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002) (internal

quotation marks omitted)); see also Smith v. Lamz, 321 F.3d

680, 683 (7th Cir. 2003) (“We have consistently held that

failure to respond by the nonmovant as mandated by the

local rules results in an admission.”).
10 No. 05-1990

But the case history here gives us pause. By granting

Deere’s September 13 Rule 56(e) motion, the district court

had agreed that the disputed expert witness discovery

was necessary to Deere’s response to Ohio Gear’s summary judgment motion. Ohio Gear’s October 13 motion to

enlarge the previously extended time for the experts’

depositions added some ambiguity to the situation. The

court did not decide that motion in a timely fashion. In the

meantime, the parties made additional written submissions

regarding the scope of the proofs and the need to set new

event dates in the case based on the continuing disputes

over expert witnesses. Oral argument was requested, but

the court did not convene a motion hearing. These matters,

too, were left unaddressed. Yet the court proceeded to

invoke the local rule, treat the facts as admitted, and enter

summary judgment—even though the stack of undecided

procedural motions included ones targeting the disputed

expert discovery that the court had previously determined

was a predicate to Deere’s response to the summary

judgment motion. The history of the motions practice in this

case was such that the court should not have bypassed all

the accumulated discovery motions to grant summary

judgment on the basis of procedural default.

Deere’s backup argument is that the court incorrectly

applied the contractual one-year limitations period to find

Deere’s claims time-barred. The argument is based on UCC

§ 2-207, the “battle of the forms” provision, and arises in

this case because of language in Ohio Gear’s quotation form

and Deere’s purchase order. Specifically, UCC § 2-207(1)

rejects the common law “mirror image” rule and provides

that a “definite and seasonable expression of acceptance or

a written confirmation which is sent within a reasonable

time operates as an acceptance even though it states terms

additional to or different from those offered or agreed upon,

unless acceptance is expressly made conditional on assent to

the additional or different terms.” 810 ILL. COMP. STAT. 5/2-

207(1) (emphasis added).
No. 05-1990 11

Thus, when a buyer’s acceptance is expressly made

conditional on the seller’s assent to the buyer’s terms and

there is no express assent from the seller, the exchange of

forms does not create a formal contract under UCC § 2-

207(1). See, e.g., Northrup Corp. v. Litronic Indus., 29 F.3d

1173, 1179-80 (7th Cir. 1994); Luria Bros. & Co., Inc. v.

Pielet Bros. Scrap Iron & Metal, Inc., 600 F.2d 103, 113 (7th

Cir. 1979); C. Itoh & Co., Inc. v. Jordan Int’l Co., 552 F.2d

1228, 1235-36 (7th Cir. 1977); see also McCarty v. Verson

Allsteel Press Co., 411 N.E.2d 936, 945 (Ill. App. Ct. 1980).

That is, the buyer’s purported acceptance, which expressly

requires the seller’s specific assent to its differing terms, is

effectively a counteroffer and not a “true” acceptance. See C.

Itoh, 552 F.2d at 1235-36; see also McCarty, 411 N.E.2d at

945. However, if the parties perform as if a formal contract

had been created, UCC § 2-207(3) comes into play:

Conduct by both parties which recognizes the existence

of a contract is sufficient to establish a contract for sale

although the writings of the parties do not otherwise

establish a contract. In such case the terms of the

particular contract consist of those terms on which the

writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

810 ILL. COMP. STAT. 5/2-207(3); see also C. Itoh, 552 F.2d at

1236. The UCC’s default limitations period is four years.

810 ILL. COMP. STAT. 5/2-725(1).

The district court did not confront the UCC § 2-207

argument. Instead, the court applied Local Rule 7.1(D)(2)

and deemed Deere to have admitted that Ohio Gear’s terms

controlled the transaction. The district court thus applied

the contractual one-year limitations period contained in

Ohio Gear’s quotation form and entered summary judgment

on grounds of untimeliness. But for the “admission”—

brought about by application of the local rule—the UCC § 2-
12 No. 05-1990

207 issued outlined above would have come into play. We

will not address it here, however; the factual record remains

incomplete because the district court entered summary

judgment prematurely, in the absence of a response from

Deere. We conclude only that the district court abused its

discretion by invoking Local Rule 7.1(D)(2) under the

particular circumstances of this case, and by entering

summary judgment without having decided the pending

discovery motions and without a response from Deere. The

judgment is vacated and the case is remanded to the district

court for further proceedings consistent with this opinion.

REVERSED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-29-06