a motion to dismiss for lack of personal jurisdiction or improper venue, Kingdom filed an answer,
appeared before the court, engaged in discovery and responded to the merits of Apollo’s motion for
summary judgment. Therefore, Kingdom waived any objection to personal jurisdiction or venue by
submitting the dispute to this court for resolution.
Il. Apollo’s Motion for Summary Judgment

A. Standard of Review

Summary judgment may be rendered on the issue of liability where there is a genuine dispute
as to the amount of damages. Fed. R. Civ. P. 56(c). Summary judgment is appropriate when the
moving papers and affidavits show there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Jd.; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Once a moving party has met its burden, the non-moving party must go beyond the pleadings and
set forth specific facts showing there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Silk v. City
of Chicago, 194 F.3d 788, 798 (7" Cir. 1999). A genuine issue of material fact exists when “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).

B. Breach of Contract

Apolio claims Kingdom breached the contract when it ceased business operations without
providing adequate notice. In response, Kingdom claims the press release constituted adequate
notice under Article 18 of the contract. Article 18 provides:

In the event that [Kingdom] ceases business operations, [Kingdom] will request the

deinstallation of all Services under this Agreement and advise [Apollo] of its

intention to terminate this Agreement by providing [Apollo] at least 30 days’ advance

written notice. In such event, and provided that [Kingdom] meets all of the

conditions specified in Article 18, each party shall be released from all further
performance obligations under this Agreement.

4


F.3d 1194, 1198 n. 8 (7th Cir. 1995). Even if the court disregarded Kingdom’s judicial admissions,
the contract was supported by adequate consideration. “Any act or promise which is of benefit to
one party or disadvantage to the other is a sufficient consideration to support a contract.” Doyle v.
Holy Cross Hospital, 186 Ul.2d 104, 112, 708 N.E.2d 1140, 1145 (1999). Apollo provided the
Apollo Service to Kingdom in exchange for payment. Apollo’s discontinuation of service upon
termination of the contract may affect Apollo’s damages, but it does not affect the validity of the
contract.
CONCLUSION
Kingdom fails to raise a genuine issue of material fact on the issue of liability. Apollo’s

motion for partial summary judgment is granted.

June 18, 2002

B. Conlon
United States District Judge


Il. Both partners are Delaware corporations with their principal places of business in Rosemont,
Illinois. Kingdom is a Pennsylvania corporation with its principal place of business in Plains,
Pennsylvania. Therefore, there is complete diversity between the parties.

In addition, the amount in controversy exceeds $75,000. If the amount in controversy is
uncontested, the court must accept the plaintiffs representation unless it “appears to a legal certainty
that the claim is really for less than the jurisdictional amount.” Target Market Publishing, Inc. v.
ADVO, Inc., 136 F.3d 1139, 1141-42 (7th Cir. 1998), quoting St. Paul Mercury Indemnity Co. v. Red
Cab Co., 303 U.S. 283, 289 (1938). According to Kingdom, Apollo demanded $451,312.34
approximately three months prior to filing suit. Kingdom Facts { 10, Ex. E. Kingdom has not made
any payments to Apollo since the contract was terminated. Therefore, it does not appear to a legal
certainty that Apollo’s claim is less than $75,000. See Hart v. Schering-Plough Corp. ,253 F.3d 272,
273 (7th Cir. 2001)(“The amount in controversy is whatever is required to satisfy the plaintiff's
demand, in full, on the date suit begins”).

B. Personal Jurisdiction and Venue

The court must resolve Kingdom’s challenge to personal jurisdiction before reaching the
merits of the case. See Steel Co. v. Citizens for Better Environment, 118 S.Ct. 1003, 1012
(1998)(“Without jurisdiction the court cannot proceed at all in any cause”). In its response to
Apollo’s statement of facts as well as its answer to the amended complaint, Kingdom denied
Apollo’s allegations of personal jurisdiction and proper venue. The defenses of lack of personal
jurisdiction and improper venue may be waived by “formal submission in a cause, or by submission
through conduct.” Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1296 (7th Cir. 1993). Kingdom

participated in this case without actively contesting personal jurisdiction or venue. Instead of filing


Kingdom Facts { 7, Ex. B. Contrary to Kingdom’s position, the press release does not fulfill the
conditions specified in Article 18. The press release did not provide Apollo with 30 days’ advance
written notice of Kingdom’s intention to terminate the contract. Instead, the press release provided
the public with one day’s notice of Kingdom’s intention to discontinue business operations. After
receiving the press release, Apollo utilized Article 12 to terminate the contract for cause:

[I]f a party ceases to do business or otherwise ceases or suspends operations for

reasons other than an event of force majeure, then the other party may immediately

terminate this Agreement on written notice or may require that certain conditions are

met in order to avoid such termination ...
Apollo Facts 18. Pursuant to the contract, Apollo is entitled to damages pursuant to Article 12.
Apollo Facts §§ 20-21.

Cc. Kingdom’s Affirmative Defenses to Liability

Without citing any authority, Kingdom claims three of its four affirmative defenses related
to liability bar Apollo’s claim.' Kingdom first claims Apollo’s breach of contract claim is barred
because Apollo waived the notice requirement in the termination letter. A party to a contract may
waive its right to strict performance of the terms of the contract. Lake County Grading Co. of
Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill. App. 3d 452, 463, 654 N.E.2d
1109, 1118 (2d Dist. 1995). “The waiver doctrine is intended to prevent the waiving party from

lulling another into a false belief that strict compliance with a contractual duty will not be required

and then suing for non-compliance.” /d. Nothing in the termination letter indicates Apollo intended

Kingdom waived the affirmative defenseof laches by failing to address it in response to Apollo’s motion for
summary judgment. Ostergren v. Village of Oak Lawn, 125 F.Supp.2d 312, 323 (N.D. Ill. 2000). In any event,
Kingdom cannot establish that Apollo, who filed suit approximately three months after the contract was
terminated, did not diligently enforce its rights under the contract. Van Milligan v. Board of Fire & Police
Commissioners, 158 II1.2d 85, 89, 630 N.E.2d 830, 833 (1994).

5


Minute Order Form (09/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Suzanne B. Conlon

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 01 C 6847 DATE 6/18/2002
CASE APOLLO GALILEO USA PARTNERSHIP vs. KINGDOM VACATIONS, INC.
TITLE
[in the following box (a) indicate the party filing the motion, c.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,}

DOCKET ENTRY:

Notified counsel by telephone.

Docketing to mail notices

Mail AO 450 form.

(3) Oo Filed motion of [ use listing in “Motion” box above.]
(2) B Brief in support of motion due
GB) Oo Answer brief to motion due . Reply to answer brief due.
(4) oO Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] {set for/re-set for] on setfor at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at.
(7) Oo Trial[set for/re-set for] on at
(8) aq {Bench/Jury trial] [Hearing] held/continued to at
(9) iia} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (General Rule 21 CIFRCP41(a)(1) 1 FRCP41(a)(2).
qo) =o (Other docket entry] Plaintiffs motion for partial summary judgment [12-1] is granted. Judgment
is entered for plaintiff Apollo Galileo USA Partnership and against defendant Kingdom Vacations, Inc.
on the issue of liability. The joint modified pretrial order on the issue of damages shall be presented on
July 19, 2002 at 9:00 a.m. Plaintiff's draft shall be submitted to defendant by July 11, 2002. Bench trial
is set on August 1, 2002 at 9:00 am. ENTER MEMORANDUM OPINION AND ORDER.
dab {For further detail see order attached to the original minute order.] y
No notices required, advised in open court. Document
. Number
No notices required, number of notices
o | Notices mailed by judge’s staff. WN 20 2002

. comet Lynod LaiyLsia sn
Copy to judge/magistrate judge. Yua
ce eivell LAH Wd 61 KAT 20
initials

date docketed

fir.

docketing deputy initials

Ab

eri9r2002

date mailed notice

ow

Og ees Nike

maiting deputy intia's



to release Kingdom from its obligations under the contract by waiving the notice requirement. To
the contrary, the termination letter states, “[Kingdom’s] early termination of the contract is deemed
a breach of the Agreement, which entitles [Apollo] to seek damages and other amounts, as provided
under the Agreement.” Indeed, Apollo specifically informs Kingdom, “[y]ou will be contacted by
[our] attorney regarding this matter.” Under these circumstances, Apollo did not waive the notice
requirement.

Kingdom relies on the termination letter in support of its estoppel defense. Estoppel applies
where: (1) the estopped party has misrepresented a material fact; (2) the estopped party had either
actual or implied knowledge that the representation was untrue at the time it was made; (3) the party
asserting estoppel was unaware that the representation was untrue both at the time it was made and
at the time it was acted upon; (4) the estopped party intended or expected the other party to act upon
the misrepresentation; (5) the party asserting estoppel did rely or act upon the misrepresentation; and
(6) the party asserting estoppel would be prejudiced if the court did not apply estoppel. Lake County
Grading Co., 275 Ill. App. 3d at 463, 654 N.E.2d at 1118-19. Kingdom has not offered evidence
Apollo misrepresented a material fact that Kingdom relied upon to its detriment. Therefore, estoppel
does not apply.

Finally, Kingdom claims the contract fails for lack of consideration because Apollo
discontinued service after termination of the contract. Kingdom admitted in response to Apollo’s
statement of facts, as well as its answer to the amended complaint, that the contract is valid and
enforceable. Kingdom Response at § 12; Kingdom Answer at 421. “Judicial admissions are formal
concessions in the pleadings. . . that are binding upon the party making them.” Help at Home, Inc.

v. Medical Capital, L.L.C., 260 F.3d 748, 753 (7th Cir. 2001), quoting Keller v. United States, 58


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
APOLLO GALILEO USA PARTNERSHIP, )
)
Plaintiff, ) | No. 01 C 6847
)
v. ) Suzanne B. Conlon, Judge
)
KINGDOM VACATIONS, INC., )
) DOCKETED
Defendant. )

MEMORANDUM OPINION AND ORDER
In this diversity action, Apollo Galileo USA Partnership (“Apollo”) sues Kingdom Vacations,
Inc. (“Kingdom”) for breach of contract. Apollo moves for partial summary judgment on the issue
of liability pursuant to Federal Rule of Civil Procedure 56.
BACKGROUND
I. Local Rule 56.1
Local Rule 56.1 requires litigants to follow a detailed procedure in filing and responding to
summary judgment motions. In response to a motion for summary judgment, Local Rule 56.1
requires the non-moving party to submit a response “to each numbered paragraph in the moving
party’s statement [of material facts], including, in the case of any disagreement, specific references
to the affidavits, parts of the record, and other supporting materials relied upon.” Local Rule
56.1(b)(3)(A). All relevant facts denied without supporting documentation must be accepted as true
provided the facts are “properly supported by references to the record or other evidentiary material.”
Jupiter Aluminum Corp. v. Home Ins, Co., 225 F.3d 868, 871 (7th Cir. 2000); Stewart v. McGinnis,

5 F.3d 1031, 1034 (7th Cir. 1993).

JUN 2 0 2002

cp


Kingdom’s responses to several paragraphs of Apollo’s statement of facts fail to cite record
evidence supporting the denials. Specifically, Kingdom disputes paragraphs 1-2 and 4 by claiming
insufficient knowledge and paragraphs 5-6, 9-11, 14 and 18-21 by claiming the contract speaks for
itself. Absent any evidence supporting Kingdom’s denials, Apollo’s factual statements, if properly
supported, are deemed admitted.

Il. Facts

The following facts are undisputed. Apollo markets, distributes and services the Apollo
Reservation and Ticketing Service (“the Apollo Service”). The Apollo Service provides information
necessary to reserve and book flights, hotels and rental cars, generate tickets and provide other
travel-related services. Kingdom entered into a contract with Apollo for the Apollo Service effective
January 1, 2001. On May 10, 2001, Apollo and Kingdom executed an amendment to the contract
whereby Apollo provided Kingdom with additional financial assistance. On May 30, 2001,
Kingdom issued a press release stating it was ceasing business operations. On May 31, 2001,
Kingdom ceased doing business. Around this time, Apollo received a copy of the press release. By
letter dated June 6, 2001, Apollo terminated the contract.

DISCUSSION
I. Jurisdiction and Venue

A. Subject Matter Jurisdiction

The court has an independent duty to determine whether subject matter jurisdiction exists
before deciding the merits of a case. Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 381
(7th Cir. 2001). Apollo is a Delaware general partnership with its principal place of business in

Rosemont, Illinois. Apollo’s partners are Apollo Galileo USA Sub I and Apollo Galileo USA Sub