Cc. Attorneys’ Fees

Ajax’s complaint secks attorneys’ fees “pursuant to the law of Ontario, Canada... .

(Prayers for Relief.) The parties now agree, however, that attorneys’ fees are a procedural matter
governed by the law of the forum. As the Seventh Circuit recently held, “‘loss’ in Article 74 does
not include attorneys’ fees... .” Zapata Hermanos Sucesores, 8.A. v. Hearthside Baking Co.. Inc.,
313 F.3d 385, 389 (7th Cir. 2002). Accordingly, because there is no genuine issue of fact for trial,
summary judgment on this issue is granted.
CONCLUSION

For the above stated reasons, defendant’s motion for summary judgment is denied as to

counts I, II, 10, and IV of plaintiff Ajax’s complaint and granted as to Ajax’s demand of

consequential damages, lost productivity damages, and attorneys’ fees.

ENTER:

Quontat. Kpldirrren

JJAMES F. HOLDERMAN
/United States District Judge

DATE: January 29, 2003

13



moving party, as this court must, this court finds that Ajax lodged a considerable number of
complaints with Can-Eng. It appears that all of these complaints were made more than nincty days
after installation. In response to many of these complaints, Can-Eng attempted to repair or in some
way remedy the problem, some, at least, at no cost to Ajax.

This court now considers Can-Eng’s motion for summary judgment.

STANDARD OF REVIEW

Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, togethcr with the affidavits, if any, show that there is no
gemuine issue as to any material fact and hat the moving party is entitled to a judgment as a mattcr
of law.” Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the evidence of the
nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 255 (1996). This court’s function is not to weigh
the evidence and determine the truth of the matter, but to determine whether there is a genuine issue
for trial.

A party who bears the burden of proof on a particular issue, however, may not rest on its
pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine
issuc of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), There
is no issue for trial “unless there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson, 477 U.S. at 249,

Itis not the function of this court to scour the record in search of evidence to defeat a motion

for summary judgment; the nonmoving party must identify with reasonable particularity the evidence

upon which that the party relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th



are to be settled in conformity with the general principles on which it is based or, in the absence of
such principles, in conformity with the law applicable by virtue of the rules of private international
law.” [ere, under private international law, because of the parties’ express choice-of-law provision,
Ontario law would apply.

Under Ontario law, a party can waive “by its words and conduct” the right to rely ona limited
warranty. General Refractories Co. of Canada Ltd. y. Venturedyne Ltd,, 2002 WL 32938 at 4 157,
2002 Carswell Ont. 36 (Ont. 8.C.J. 2002). If Can-Eng gave, after the ninety-day period, “repeated
assurance that it would support” the furnace, a trier of fact could find that it waived its limited
warranty. Id. at J 159. Further, Ajax may be able to rely on the doctrine of promissory estoppel to
preclude enforcement of the limited warranty. Thc General Refractorics court stated that “[a]
promise, whether express or inferred from a course of conduct, is intended io be legally binding if
it reasonably leads the promisee to belicve that a legal stipulation, such as strict time of performance,
will not be insisted upon... .” Id, at | 158 (quoting Owen Sound Pub. Library v. Mial Devs. Ltd.
(1979), 102 D.L.R. (3d) 685 (Ont. C.A.), at 691).

The record shows that there are material facts in dispute as to whether Can-Eng, by providing
service and repair, some of which at no charge, after the ninety-day limited warranty period, waived
its limited warranty or whether Ajax can preclude enforcement under the doctrine of promissory
estoppel. (Sce Ajax’s Resp. to Can-Eng’s Specilic Allegations of Fact {J 38, 39, 40; Can-Eng’s

Resp. to Ajax’s Stmt. of Additional Facts 9 21,° 24, 26, 30, 33, 34, 35, 36, 37, 41; Can-Eng’s

* For purposes of summary judgment, this court considered only Can-Eng’s response,
wherein it admits that it “provided Ajax with a thermocouple, free of charge, and reinstalled the
original thermocouple.” (Can-Eng’s Resp. to Ajax’s Stmt. of Additional Facts § 21 (emphasis
added).)


of applicable law adopts the law of British Columbia, and it is undisputed that the CISG is the law
of British Columbia.”).
Il. Validity of Warranty

Although the CISG applies to the parties’ contract, contrary to Ajax’s argument, the terms
and conditions and all limitations contained in the contract are not completely superceded by the
provisions of the CISG. (Ajax’s Mem. in Opp’n at 4.) The CISG does not preempt a private
contract between parties; instead, it provides a statutory authority from which contract provisions
are interpreted, fills gaps in contract language, and governs issues not addressed by the contract. In
fact, Article 6 states that parties may, by contract, “derogate from or vary the effect of any of [the
CISG’s] provisions.” CISG Art. 6. Accordingly, under the CISG, the terms of the parties’
agrecment control. In this case, the limited warranty, as part of the contract executed by the parties,
lawfully limits Ajax’s remedies. As will be discussed below, however, there are material facts in
dispute as to whether Can-Eng has waived this limited warranty.

I. Claims Under the CISG

In counts Tand Il, Ajax alleges tha Can-Eng breached an express and implied warranty under
the Ontario Sale of Goods Act. (Count I § 22; Count II §f[ 19, 20.) Can-Eng argues that because
Ajax cited to the Ontario Sale of Good Act, instead of the applicable CISG, summary judgment in
its favor on these counts is warranted. (Mem. in Support at 13-15; Reply at 5.) Under Seventh
Circuit precedent, however, a plaintiff cannot plead herself out of court by citing to the wrong legal
theory or failing to cite any theory at all.” Ryan v. Illinois Dep’t of Children & Family Servs., 185

F.3d 751, 764 (7th Cir, 1999); see also Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078

(7th Cir. 1992) (explaining that “the complaint need not identify a legal theory, and specifying an



Cir. 1996). The evidence relied upon must be compctent evidence of a type otherwise admissible
at trial. Id.
ANALYSIS

1. Governing Law

As a preliminary matter, this court must determine what law governs the parties’ contract.
In order to provide for the orderly conduct of international commerce, the United States, Canada, and
the province of Ontario have adopted the United Nations Convention on the International Sale of
Goods (“CISG” or “Convention”). 15 U.S.C.A. App. at 332; R.S.C, 1991, ¢.13; R.8.0, 1990, C.1.10,

As Judge Lindberg pointed out, “federal caselaw interpreting and applying the CISG is scant.”

Usinor Industeel v. Leeco Steel Prods,, Inc., 209 F. Supp. 2d 880, 884 (N.D. III. 2002). The CISG
“applies to contracts of sale of goods between parties whose places of business are in different Statcs
when the States are Contracting States.” CISG Art. 1 §1(a). By agreement, parties may exclude
application of the CISG by expressly providing in the contract that the Jaw of a non-CISG
jurisdiction applies or that the CISG does not control. CISG Art. 6; R.S.0., c.1.10, s, 6.

In this case, it is undisputed that Ajax, an Illinois corporation, and Can-Eng, an Ontario
corporation, are parties whose places of business are in different states and that these states are
contracting states. Thus, unless the parties have opted-oul, the CISG applics here. The parties’
contract states that the “agreement shall be governed by the laws of the Province of Ontario,
Canada.” Obviously, this clause does not exclude the CISG, Further, although the parties have
designated Ontario law as controlling, it is not the provincial law of Ontario that applies; rather,
because the CISG is the law of Ontario, the CISG governs the parties’ agreement. See Asante

Techs., Inc. v. PMC-Sierra, Inc., 164 F, Supp. 2d 1142, 1150 (N.D. Cal. 2001) (“Defendant's choice



that the furnace did not maintain a constant temperature, used an excess amount of sand, and,
contrary to the express warranty, did not function properly with air as the atmosphere to fluidize the
furnace. Can-Eng disputes these allegations and maintains that the furnace worked as specified.
Because there are material facts in dispute as to whether the furnace conformed to the express
warranty and specifications in the contract, this court cannot grant summary judgment.

Can-Eng argues that although there may be material facts in dispute as to the condition of the
furnace, the limited warranty precludes Ajax’s recovery. Can-Eng asserts that its only obligation to
Ajax was to repair or replace any defects in workmanship or material during a period of ninety days
from the date of shipment. Because the alleged problems with the furnace occurred after the ninety-
day warranty period, Can-Eng contends, Ajax is prohibited from proceeding on the claims it has
asserted against Can-Eng.

Can-Eng advancesa strong argument, and Ajax fails to address this argument under the CISG
in its response. Because there are material facts in dispute as to whether Can-Eng has waived its
right to enforce the limited warranty, however, this court cannot, as a matter of law, enforce the
limited warranty, A waiver is the “intentional or voluntary relinquishment of a known right, or such

”

conduct as warrants an inference of the rclinquishment of such right... .” BLAck’s Law
Dictionary 1580 (6th ed. 1990). As this court has explained above, the CISG is the governing law
in this case. However, the parties did not present, and this court could not find, any cases under the

CISG that address the issue of waiver. Article 7 of the CISG provides that in such a case where

“[q]uestions concerning matters governed by this Convention which are not expressly settled in it

.” (Ajax’s Stmt. of Additional Facts, Ex. 15 at {22 (emphasis added).) This court finds that this
appears lo be an accuraie, consistent summary of Malget’s deposition testimony and is therefore
admissible.



AE Minute Onde Form (0697)

United States District Court, Northern District of Llinois

Name of Assigned Judge
or Magistrate Judge

James F, Holderman

Sitting Judge if Other
than Assigned Judge

CASE NUMBER OL C 5938 DATE 1/29/2003
CASE AJAX TOOL WORKS vs. CAN-ENG MANUFACTURING
TITLE
[ln the following box (u) indieate the party filing the motion, ¢.2., plaintiff, defendant, 3rd party plaintiff, and (b) state brictly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
aq oa Filed motion of [ use listing in “Motion” box above.
@ oO Brief in support of motion duc
Q) a Answer brief to motion duc . Reply to answer brief duc.
(4) 0 Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on _ set for at
(6) Qa Pretrial conference|held/continucd to) (set for/re-set for] on set for at
(7) oO Trial|sct for/re-set for] on at
(8) oO [Bench/Jury trial] [Ilearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OF Local Rule 41.1 OFRCP41(aX(1) OL FRCP41(a)(2).
ao) ol [Other docket entry] Pursuant to Memorandum Opinion entered this day, defendant’s motion for
summary judgment is denied as to counts I, LI, LU, and IV of plaintiff's complaint and granted as to
plaintiff's demand of consequential damages, lost productivity damages, and attorneys’ fees, All
previously set dates shall stand.
(1) off [For further detail see order attached to the original minute order.]
No nolices required, advised in open court “Document
. ‘Number
No notices required, number of notices
o | Notices mailed by judge's staff,

JAN 3 0 2003

dave dooke

b.

Nolified counsel by telephone.

Docketing to mail notices.

Muil AO 450 form, 1G 30 ocketng depth
Copy to judge/mugistrate judge.
vastuns
Oi at ite mailed notice
courtroom Gob 4 au vioe
Is deputy's 186
initials r
we Date/tiine received in
central Clerk’s Office railing deputy initials



Can-Eng argues, however, that the limited warranty disclaimed any implied warranties. This
court disagrees. Can-Eng misreads the Cook article cited in its reply memorandum. (Reply at 8.)
Ms. Cook writes:

Under CISG, the presumption is that the goods “are fit for the purpose for
which goods of the same description would ordinarily be used” and are “fit for any
particular purpose expressly or impliedly made known to the seller at the time of the
conclusion of the contract,” However, this presumption is subject to an express
agreement among the parties to the contrary. Under CISG, the only question is
whether the disclaimer is a part of the agreement between the parties, arguably a
tougher, yet ultimately fairer standard.

Susanne Cook, CISG: From the Perspective of the Practitioner, 17 J... & Com. 343, 347 (1998),

Contrary to Can-Eng’s assertion, the parties’ agreement does not contain an express
disclaimer of any implicd warrantics. The parties have not agreed expressly that the furnace did not
have to perform in a similar fashion as other like furnaces would perform or as Can-Eng expressly
or impliedly made known that the furnace would. The parties’ agreement simply limited Ajax’s
remedies. As stated above, this limited warranty provision is part of the parties’ contract, but a
genuine issue of material fact exists as to whether Can-Eng has waived, or is precluded by the
doctrine of promissory estoppel, its right to rely on the limited warranty. Accordingly, summary
judgment is denied as to the claims alleged in counts II and IV of Ajax’s complaint.

VI. Ajax’s Recovery
Although issues of material fact preclude summary judgmentas to liability, because there are

no genuine issues of material fact as to some of Ajax’s alleged damages and Can-Eng is entitled to

judgment as a matler of law, summary judgment is appropriate in part.



56.1(a) Stmt.® Jf 35, 36, 37; Can-Eng’s Mem. in Support at 9, 12.”) Consequently, summary
judgment must be denied as to the claims alleged in counts I and III of Ajax’s complaint.
Vv. Breach of Implied Warranty (Count IT) and Breach of Contract (Count IV)

Article 30 of the CISG requires the seller to deliver goods “as required by .. . this
Convention.” CISG Article 35(2) states:

Except where the parties have agrecd otherwise, the goods do not conform with the

contract unless they:
(a) arc fit for the purposes for which goods of the same description would ordinarily
be used;
(b) are fit for any particular purpose expressly or impliedly made known to
the seller at the time of the conclusion of the contract, except where the
circumstances show that the buyer did not rely, or that it was unreasonable for
him to rely, on the seller’s skill and judgment. ...

Along with the contract, Ajax alleges that Can-Eng has breached these implied warranties.
The same genuine questions of material fact as to whether the furnace complied with the express
warranties apply with equal force to the implied warranties. Therefore, this court cannot grant

summary judgment.

® Citations to Can-Eng’s Local Rule 56.1(a) Statement are judicial admissions by Can-
Eng that it serviced Ajax’s furnace more than ninety days after shipment of the furnace.

As stated in this court’s January 28, 2003, Minute Order, this court has stricken, and thus
has not consider, the affidavit of James Brody. After granting Can-Eng’s motion to strike, this
court received Ajax’s response to the motion to strike. Because granting the motion to strike has
no effect on the disposition of this motion for summary judgment, the response is moot.
However, if Can-Eng brings a motion in limine to preclude Brody’s testimony at trial, Ajax may
respond to such motion with the facts contained in its response to the motion to strike. This
court will then rule upon such motion in limine at the final pre-trial conference.

7 Can-Eng admits that it “provided Ajax with a cost-free replacement of the furnace’s
thermocouple after the furnace was started-up, even though that alleged problem arose shortly
after ninety days from shipment...” (Can-Eng’s Mem. in Support at 12 (emphasis added).)

10



incorrect theory is not fatal”), In the case at hand, “[i]t is of no moment therefore that [Ajax’s]
complaint identified the wrong statute as the basis for [its] claim, as long as [its] allegations gave
notice of a legally sufficient claim and [it] brought the legal support for [its] claim to the district
court’s attention in [its| response to [Can-Eng’s] summary judgment motion.” Ryan, 185 F.3d at 764
(cilations omitted). It is clear that under the CISG actions for breach of express and implied
warranties are actionable. CISG 35(1); CISG 35(2). Thus, summary judgment on the basis that Ajax
brought its claims under the Ontario Sale of the Goods Act rather than the CISG is denicd,

IV. Breach of Express Warranty (Count J) and Breach of Contract (Count IIT

Page 7 of the January 27, 1997, proposal states that the “constant flow of particles assures
tremendously uniform temperatures of +/-5° with in [sic] the work space.” Further, the document,
also on page 7, states that “the bed maintains excellent temperature uniformity throughout.” Finally,
page 11 states that one of the atmosphere capabilities is “Air.” Ajax alleges that Can-Eng breached
these express warranties and express provisions of the contract.

Articles 30 and 35 of the CISG require a seller to “deliver goods which are of the quantity,
quality and description required by the contract... .” CISG Art. 35; see Art. 30 (“The seller must
deliver the goods, hand over any documents relating to them and transfer the property in the goods,
as required by the contract and this Convention.”), The issue, therefore, is whether the good
delivered, ie., the furnace, complied with the express warranties of the contract. The parties dispute
this point. (See Ajax’s Resp. to Can-Eng’s Specific Allegations of Fact {ff 38, 39, 40; Can-Eng’s

Resp. to Ajax’s Stmt. of Additional Facts 4 24, 31, 32, 34, 35, 36, 37, 40.4) Ajax asserts, inter alia,

* Can-Eng argues that the statement in Michael J. Malget’s affidavit is inconsistent with
his deposition testimony. The affidavit does not state that the furnace “never worked,” as Can-
Eng alleges; rather, it says that the furnace “never worked properly for any reasonable period...

7



material which may develop under proper and normal use during a period of ninety
days from date of shipment or completion of installation if installation is undertaken
by CAN-ENG. Such repair or replacement shall constitute a fulfillment ofall CAN-
ENG liabilities with respect to such apparatus. CAN-ENG shall not be liable for
consequential damages. This warranty shall not apply if alterations or modifications
of any nature are madc by the Purchaser or if erection, installation or stating up is not
performed under CAN-ENG supervision or under CAN-ENG approved methods.
CAN-ENG’S liability for the service of any refractories, alloy or other
component parts manufactured by other than CAN-ENG but incorporated in the
equipment furnished to Purchaser, shall be limited to the guarantee or liability to
CAN-ENG of the manufacturer or supplier of such components, CAN-ENG is not
responsible in any manner for operation of the equipment in Purchaser’s plant.
CAN-ENG’S warranties or guarantees do not cover the process of
manufacture or the quality of the product on which this equipment may be used.

OTHER UNDERSTANDINGS - All previous oral or written agreements between
the parties hereto which are contrary to or inconsistent with this proposal are hereby
abrogated, it being understood that there are no agreements, guarantees or
understandings which are in conflict with or inconsistent with this proposal. A
purchase order covering the materials, apparatus or equipment specified herein shall
be considered by both the Purchaser and CAN-ENG to be merely an acceptance of
this Proposal and the Terms and Conditions set forth herein, and any other terms or
conditions which may be printed or contained on such purchase order which are in
conflict with or inconsistent with this proposal shall be not applicable. This
agreement shall be governed by the laws of the Province of Ontario, Canada. Any
terms and conditions herein, which may be in conflict with Ontario Law, shall be
deleted, however, all other terms and conditions shall remain in force and effect.

Can-Eng shipped the furnace to Ajax on June 26, 1997, and it arrived at Ajax’s plant on June
27, 1997. Ajax installed and started the furnace ilself. Over the course of the next four years, Ajax
experienced problems with the furnace, particularly that the furnace would not attain and hold the
selected temperature, used an excessive amount of sand, and did not function properly with
compressed air as the atmosphere.’ The parties dispute exactly when and how often Ajax reported

these problems to Can-Eng, but viewing the evidence in the light most favorable to Ajax, the non-

> As will be discussed infra, the partics dispute the extent of the problems.

3



Technical and Management Services, a consulting firm retained by Ajax, Can-Eng submitted a
proposal in which it offered to supply a fluidized bed furnace to Ajax. Ajax did not accept this offer.
Over the course of 1996, Can-Eng submitted two follow-up proposals to Ajax, neither of which was
accepted. On January 27, 1997, Can-Eng sent Ajax a fourth proposal to sell a fluidized bed furnace
to Ajax for $90,000. After issuance of the proposal, the parties entered into an agreement whereby
Ajax purchased the furnace from Can-Eng. The terms of the January 27, 1997, proposal formed the
parties’ contract.”

Page 4 of Can-Eng’s fourtecn-page proposal contained the following relevant terms and
conditions;

WARRANTY - CAN-ENG in connection with apparatus sold will repair or replace,
at the option of CAN-ENG, f.o.b. our factory, any defects in workmanship or

> In its memorandum in opposition to summary judgment, Ajax disputes that it accepted
Can-Eng’s January 27, 1997, proposal. It argues that it made a counteroffer that Can-Eng
accepted on January 24, 1997, and that it never executed the contract containing the terms in
dispute. In its first amended complaint, however, Ajax alleges: “Following issuance of the
[January 27, 1997 (Compl. common allegations J 8, Counts IIT and IV { 8)] Proposal, Plaintiff
and Defendant contracted for the purchase and sale of [the furnace] ... .” (Compl. common
allegations { 10, Counts III and IV 4 11.) Ajax has thereby judicially admitted that the parties
entered into a contract afler January 27, 1997. See Soo Line R. Co. v, St, Louis Southwestern
Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997) (holding that at summary judgment “judicial
efficiency demands that a party not be allowed to controvert what it has already unequivocally
told a court by the most formal and considered means possible.”); Keller v. U.S., 58 F.3d 1194,
1198 n.8 (7th Cir, 1995) (“Judicial admissions are formal concessions in the pleadings, or
stipulations by a party or its counsel, that arc binding upon the party making them. They may not
be controverted at trial or on appeal. Indeed, they are ‘not evidence at all but rather have the
effect of withdrawing a fact from contention.’” (citations omitted)).

Further, Ajax quotes from the proposal in support of its breach of express warranty and
breach of contract claims (See Count I 4§[ 17, 18; Count III {J 18, 19) and attaches the proposal to
its complaint. See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”). Although Ajax argues in its memorandum in
opposition to summary judgment that the proposal provisions do not apply, its judicial
admissions withdraw this fact from contention and establish that the terms of the January 27,
1997, proposal were part of the parties’ contract and thereby govern this dispute.

2



IN THE UNITED STATES DISTRICT COURT aa)

nt

FOR THE NORTHERN DISTRICT OF ILLINOIS yy ie te
EASTERN DIVISION yan 3 9 2003

)

Ajax Tool Works, Inc., )
)

Plaintiff, )

)

v. ) No. 01 C 5938

)

Can-Eng Manufacturing Ltd., )
)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge:

On March 15, 2002, plaintiff Ajax Too] Works, Inc, (“Ajax”) filed a four-count first amended
complaint against Can-Eng Manufacturing Ltd. (“Can-Eng”) alleging breach of express and implied
warranties and breach of contract. On December 23, 2002, Can-Eng moved, pursuant to Fedcral
Rule of Civil Procedure 56, for summary judgment. Ilaving considered this matter fully, for the
reasons stated herein, Can-Eng’s motion for summary judgment is denied in part and granted in part.

STATEMENT OF FACTS!

Plaintiff Ajax, an Illinois corporation, is a manufacturer of chisels, hammers, and other tools.

Defendant Can-Eng, an Ontario, Canada corporation, manufactures industrial furnaces, including

a fluidized bed furnace, which is at issue in this case. In January 1996, at the request of Lindberg

' The facts assumed to be true for purposes of this summary judgment motion are derived
from Can-Eng’s Local Rule 56.1(a) Statement of Facts, Ajax’s Local Rule 56.1(b) Statement of
Additional Facts and Response, and Can-ling’s Response to Ajax’s Statement of Additional
Facts.



A. Consequential Damages

It is undisputed that the parties’ agreement states that “CAN-ENG shall not be liable for
consequential damages.” As discussed above, such limited liability provision is enforceable under
the CISG. Further, although Article 74 of the CISG provides for consequential damages, “[s]Juch
damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the
time of the conclusion of the contract, in the light of the facts and matters of which he then knew or
ought to have known, as a possible consequence of the breach of contract.” CISG Art. 74. Because
Ajax did not address this point in its response memorandum, as best this court can tell, Ajax has not
introduced any evidence that the consequential damages sought were foresceable to Can-Eng. For
these reasons and because there are no facts disputed, summary judgment is granted as to
consequential damages.

B. Lost Productivity Damages

‘As discussed above, a judicial admission by a party takes an issue out of contention. Ata
January 15, 2003, hearing before Magistrate Judge Keys, the court stated on the record that Ajax’s
counsel had taken “lost productivity,” “lost profits,” and “lost customers” “off the table.” (Can-
Eng’s Resp. to Ajax’s Stmt. of Additional Facts, Ex. f at 10.) In addition, the court’s minute order
of that date made it clear that “[dJuring oral argument plaintiff's counsel assured the defendant that
it is not seeking damages for loss of business and profits.” (Can-Eng’s Resp. to Ajax’s Stmt. of
Additional Facts, Ex. F.) Based on Ajax’s judicial admissions, there are no facts in dispute as to this
issuc; consequently, Can-Eng is entitled to summary judgment as to damages for loss of business and

profits. Sec Soo Line R. Co., 125 F.3d at 483, Keller, 58 F.3d at 1198 n.8.

12