Norman, 740 F. Supp. at 1364-66. Plaintiff contended that a price list specifically referred to in the
written contract was not attached as an exhibit. The court held the plaintiff accountable for the price
list because he had signed an agreement expressly incorporating the list. /d. at 1368 n.3.

Similarly, in Andren & Assoc v. Scitex American Corp., No. 95 C 276, 1995 WL 669109
(N.D. IL. Nov. 8, 1995), the plaintiff contended he never saw or discussed the standardized terms
and conditions containing limitations on remedies. Andren, 1995 WL 669109, at *2. The court noted
the contract stated the transaction was “pursuant to [Defendant’s] Standard Terms and Conditions
of Sale attached.” The court found the sales agreement sufficiently placed plaintiff on notice that
the additional terms were incorporated. Jd. Thus, the court held those terms were binding even if
the plaintiff had not seen it. Jd. at *3. Accordingly, the court dismissed the complaint because
plaintiff's remedies were limited to replacement and repair.

Andren is factually analogous. The contract between 188 and Trinity stated, "Sales of all
services and materials are subject to the general terms and conditions on the reverse side." Compl.
at Ex. 3. The contract referenced the additional terms, stated their location, and informed 188 that
the transaction was subject to those terms. This is sufficient to place 188 on notice that the
transaction incorporated additional terms on the reverse side of the contract. Similar to Andren, 188
is bound by the remedy limitations even if 188 did not receive these additional terms. Furthermore,
188 could have inquired about the missing pages when it received the contract; it did not. See JM.
Process Sys., Inc. v. W.L. Thompson Elec., Co., 218 Ill.App.3d 350, 354, 578 N.E.2d 264, 267
(1991); see also Raczynski v. International Business Machines, Corp., No. 92 C 6423, 1993 WL
282722 (N.D. Ill. July 21, 1993) (additional agreements that plaintiff claims he never saw were

incorporated by reference into the contract); Burns v. Ford Motor Co., 29 Ill.App.3d 585,331 N.E.2d


DISCUSSION
I. Motion to Dismiss standard

Inruling on a motion to dismiss, the court considers “whether relief is possible under any set
of facts that could be established consistent with the allegations." Pokuta v. Trans World Airlines,
Inc., 191 F.3d 834, 839 (7th Cir. 1999) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A
claim may be dismissed only if there is no set of facts that would entitle the plaintiff to relief based
on the allegations in the complaint. Vonderohe v. B & S of Fort Wayne, Inc., 36 F.Supp.2d 1079,
1081 (7th Cir. 1999). A motion to dismiss tests the sufficiency of the complaint, not its merits.
Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).

Il. Damages and Form 4

Trinity contends all damages claimed by 188 are precluded by the express terms of the
contract, namely Form 4's provisions. 188 attached the contract to its second amended complaint.
Compl. at Ex. B. The contract is “therefore incorporated in the parties’ pleadings and may properly
be considered on a motion to dismiss under Fed. R. Civ. P. 12(b)(6).” Stepan Co. v. Winter Panel,
948 F. Supp. 802, 809 n.5 (N.D. Ill. 1996).

Inresponse, 188 states it never saw or received Form 4 from Trinity. Ifa contract specifically
references additional provisions, “those additional provisions become as much a part of the contract
as if they were expressly written in it.” Wilson v. Wilson, 217 I.App.3d 844, 853, 577 N.E.2d 1323,
1329 (1991). When a party incorporates other writings into a contract by reference, the incorporated
document is binding even where the parties have not seen it. Norman Security Sys., Inc. v. Monitor
Dynamics, Inc., 740 F. Supp. 1364, 1368 n.2 (N.D. Ill. 1990). In Norman, the plaintiff sought to

escape a contract with the defendant for the sale of a security system that failed to operate properly.


325 (1st Dist. 1974) (additional indemnity agreement containing “general conditions” were
incorporated into contract where referenced but not attached). Accordingly, Form 4 is enforceable
and binding on 188.

188 argues this court’s July 9, 2001 order granting leave to file a second amended complaint
indicated Count] could withstand a motion to dismiss. This is a misreading of the court’s order. The
court only found 188's new allegation did not contradict its original position that Trinity consented
to the exclusion of Form 4. On that basis, the court granted leave to amend the complaint.

Parties are held to the exclusive remedies set forth in their contracts. Stepan Company, 948
F.Supp. at 807 n.2. The court previously ruled the contract between Trinity and 188 limits recovery
to the replacement or repair of railroad cars. 188 LLC v. Trinity Indus., Inc., No. 00 C 7993, 2001
WL 506891, at *2 (N.D. Ill. May 14, 2001); see also Andren, 1995 WL 669209, at *2-3. 188 seeks
neither the repair nor replacement of any railroad car or part in its second complaint. Because 188
has no other remedy against Trinity as a matter of law, 188's second amended complaint must be
dismissed.

CONCLUSION

The motion to dismiss is granted. This action is dismissed with prejudice.

September 7, 2001 Acar
BB, Orlov

SuzAnne#. Conlon
United States District Judge



nate Onder Foon (0097

United States District Court, Northern District of Dlinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Suzanne B. Conlon than Assigned Judge
CASE NUMBER 00 C 7993 DATE 9/7/2001
CASE 188 LLC vs. TRINITY INDUSTRIES, INC.
TITLE
{In the following box (a) indicate the party filing the motion, eg., plaintiff, defendant, 3d party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) im} Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on__ set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) a Trial[set for/re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (General Rule21 OO FRCP41(a)(1)  FRCP4i{a)(2).
cao) ff [Other docket entry] Trinity Industries, Inc.’s motion to dismiss [26-1] is granted. This action is
dismissed with prejudice. ENTER MEMORANDUM OPINION AND ORDER.
bry BR . Onl
(1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required, number of notices.
Y | Notices mailed by judge’s staff.
Notified counsel by telephone. SEP J, 9 2p 04
Docketing to mail notices.
JY | Mail AO 450 form. ® depofng dep finale
Copy to judge/magistrate judge. a “ff
id om
courtroom OLSEP-7 PUL? 31 date maileY notice
SB deputy’s . ce
initials
Date/time received in
central Clerk’s Office mailing deputy icitials



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS vy)
EASTERN DIVISION ley,
$0 ly
188 LLC ) ay
_) %
Plaintiff, ) No. 00 C7993
)
Vv. ) Suzanne B. Conlon, Judge
)
TRINITY INDUSTRIES, INC. )
Defendant. )
)

MEMORANDUM OPINION AND ORDER

188 LLC (“188") sues Trinity Industries, Inc. (“Trinity”) for breach of contract alleging
Trinity failed to meet its obligations regarding repairs of 188's railroad cars. Trinity moves to dismiss
the second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6).

BACKGROUND

For purposes of a motion to dismiss, the court accepts all well-pleaded allegations in the
complaint as true and draws all reasonable inferences in favor of the nonmovant. Stachon v. United
Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). 188 is an Illinois corporation with its
principle place of business in Forest Park, Ilinois. Trinity is a Delaware corporation with its
principle place of business in Dallas, Texas.

On February 15, 2000, 188 and Trinity entered into a contract under which Trinity would
repair 188's railroad cars at Trinity's facilities in Saginaw, Texas and Miles City, Montana. The
contract stated, "Sales of all services and materials are subject to the general terms and conditions..."
Second Amended Complaint (“Compl.”) at Ex. B. Trinity's general terms and conditions are found

1


in Form 4, titled "Trinity Railcar Repair General Terms and Conditions." Jd. at Ex. C. Form 4 states:
(1) "Trinity's liability for any and all losses and damages resulting from any cause whatsoever ... shall
be limited to the repair or replacement ... of any part or parts of any car found to be defective within
one year of delivery of such car” (2) "Inno event, including in the case of a claim of negligence, shall
Trinity be liable for indirect, special, or consequential damages;" and (3) Trinity “shall have no
liability ... for indirect, special or consequential damages arising from a breach of this contract by
Trinity ... or from any cause arising from this contract." /d. at Ex. C. 188 alleges Form 4 was not
transmitted with the contract, and was not communicated in any other way to 188 when the contract
was formed. Id. at J 8.

188 contends Trinity failed to meet its contractual obligations by providing poor quality
work. Trinity's unsatisfactory performance included: (1) charging more than the agreed price for
repairs; (2) failing to repair cars within the agreed time frames; and (3) scrapping cars at a rate higher
than the agreed rate. 188 seeks money damages for the alleged breach of contract. Jd. at ] 11.

In 188's first amended complaint, 188 argued Trinity agreed to exclude Form 4 from the
contract, which limits 188's remedies to repairs and replacements. The court granted Trinity’s
motion to dismiss without prejudice, holding that evidence of prior or contemporaneous oral
agreements could not vary or contradict the terms of the fully integrated contract. 188 moved to
amend its complaint, enclosing a two-count complaint with its motion. The court granted 188's

motion but struck Count II as it failed to raise an additional contract claim.