not perform under the contract; and (4) damages resulted. T.L. Swint Industries, Inc, v.
Premiere Sales Group, Inc., 16 F.Supp.2d 937 (N.D. Ill. 1998) (citing Berry v. Oak Park Hosp.,
256 Il. App. 3d 11, 628 N.E.2d 1159, 1165, 195 Ill. Dec. 695, 701 (1st Dist. 1993)).

In this case, it is undisputed that Merchantwired entered into the agreements for trade
show and exhibit property and services for the Retail Systems 2001 trade show. The agreement
specifically provided that Merchantwired would be later billed for field services. Merchantwired
has not shown that the amount billed was unreasonable for the services provided. Cameron Cole
sent the plaintiff a letter commending the work performed and thus it is clear that the plaintitt
performed its duties under the contract. The defendant did not pay the full amount for the
services provided by the plaintiff and has not presented any valid excuse for its failure to do so.
3D Exhibits has been damaged in the amount of $116,476.18 by the defendant's failure to pay.

3D Exhibits argues that it is entitled to prejudgment interest.” The Illinois Interest Act,
815 ILCS 205/2, provides in relevant part that "[c]reditors shall be allowed to receive at the rate
of five (5) per centum per annum for all moneys after they become due on any bond, bill,

promissory note, or other instrument of writing * * *."_ A written contract is a “written

73D Exhibits prefaces its claim for prejudgment interest on Merchantwired’s vexatious
delay of payment. In order to collect interest on a theory of unreasonable and vexatious delay,
the evidence must show that the debtor had thrown obstacles in the way of collection or by
some circumvention or management of his own had induced the creditor to delay taking
proceedings to collect the debt longer than he would have otherwise done, or such claimant
must establish conduct on the part of his opponent which is tantamount to fraud. 601 W, 81"
St. Corp. v. City of Chicago, 129 Ill. App.3d 410 (Ill. App. Ct. 1984). However, in an
action to recover interest on a written instrument, the creditor need not prove that payment
was delayed unreasonably and vexatiously in order to be awarded prejudgment interest.
Kubinski & Sons v. Dockside Dev, Corp., 33 Ill. App.3d 1015 (Ill. App. Ct. 1975). Thus,
this Court need not decide plaintiff's vexatious delay claim (Count Ill) in order to grant
plaintiff full relief.

4.


drawn from it in a light most favorable to the non-movant, a reasonable jury could return a
verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,

2510, 91 L. Ed. 2d 202 (1986); Hedberg v, Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.
1995).

Because the purpose of summary judgment is to isolate and dispose of factually
unsupported claims, the non-movant must respond to the motion with evidence setting forth
specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Michael,
259 F.3d at 845; Albiero v, City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001). To successfully
oppose the motion for summary judgment, the non-movant must do more than raise a
"metaphysical doubt" as to the material facts, see Wolf v. Northwest Ind. Symphony Soc'y, 250
F.3d 1136, 1141 (7th Cir. 2001) (citation and quotation omitted), and instead must present
definite, competent evidence to rebut the motion, see Albiero, 246 F.3d at 932. Rule 56(c)
mandates the entry of summary judgment against a party "who fails to make a showing sufficient
to establish the existence of an element essential to that party's case, and in which that party will
bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. at 2552-53. A scintilla of
evidence in support of the non-movant's position is not sufficient to oppose successfully a
summary judgment motion; "there must be evidence on which the jury could reasonably find for
the [non-movant]." Anderson, 477 U.S. at 250, 106 S, Ct. at 2511.

HI. Discussion

3D Exhibits moves for summary judgment against Merchantwired for breach of contract.

To prove breach of contract a plaintiff must show that: (1) a valid contract existed between the

plaintiff and the defendant; (2) the plaintiff performed under the contract; (3) the defendant did

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instrument" within that statute if it contains some price provisions so that the amount due under
the contract will be fixed or determinable, and as long as it is due in the sense that a
debtor-creditor relationship has come into being. Fabe v. Facer Ins. Agency, Inc., 773 F.2d 142,
147 (7" Cir. 1985). The contract between 3D Exhibits and Merchantwired contained detailed
price provisions, The amount due, $116,476.18, is readily ascertainable and there was no
reasonable dispute among the parties. Accordingly, 3D Exhibits is entitled to prejudgment
interest from the date upon which the last invoice was sent to Merchantwired, July 31, 2001.
That invoice was marked “Payable upon receipt.” The interest, at five per centum, is $7,135.40.

Conclusion
For the foregoing reasons, 3D Exhibits motion for summary judgment on Count I of the

complaint (breach of contract) against Merchantwired is granted. The remaining counts of the
complaint are dismissed. 3D Exhibits is awarded $116,476.18 in damages and $7,135.40 in

prejudgment interest.
Enter:
David H. Coar
United States District Judge

Dated: October 21, 2002

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‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Yo

(Lim as ds Jud i Sitting Judge if Oth
01 IMingistrate Judge David H. Coar han Ausiined Judge
f chse NUMBER 02 C 832 DATE 10/21/2002
CASE 3D Exhibits, Inc. vs. Merchantwired LLC
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
3D Exhibits, Inc.’s Motion for Summary Judgment on Counts I and HI of the complaint
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) a] Answer brief to motion due. . Reply to answer brief due. :
(4) a Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo 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) a] (Bench/Jury trial] [Hearing] held/continued to at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (ClLocal Rule 41.1 {IFRCP41(a)(1)  FRCP41(a)(2).
(10) MH — [Otherdocketentry] For the reasons set forth in the attached Memorandum Opinion and Order, 3D
Exhibit’s motion for summary judgment against Merchantwired on Count I of the complaint is granted.
The remaining counts of the complaint are dismissed. 3D Exhibits is awarded $116,476.18 in damages
and $7,135.40 in prejudgment interest. This action is closed. »
(1) @f [For further detail see order attached to the original minute order.] ne bh
No notices required, advised in open court. :
No notices required. umber of notices :
Notices mailed by judge's staff. DCT 2 3
Notified counsel by telephone. date 3 2002
X_ | Docketing to mail notices.
#1 Mail AO 450 form. vers “sn docketing deputy initiala
Copy to judge/magistrate judge. Lene.
“ i date mailed notice
courtroom an ated
kib (Jc) deputy’s we
initials
Date/time received in
central Cletk’s Office trnling deputy intial



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

EASTERN DIVISION
3D EXHIBITS, INC., . )
)
Plaintiff, )
) No. 02 C 832
vy. )
) HONORABLE DAVID H. COAR
MERCHANTWIRED, LLC, )
)
Defendant. )

COCKE TED

ocr
MEMORANDUM OPINION AND ORDER 23 amg

On December 26, 2001, 3D Exhibits, Inc.(“plaintiff’ or “3D Exhibits”) filed a four count
complaint against Merchantwired, LLC (“defendant” or “Merchantwired”) in the Circuit Court of
INinois alleging breach of contract (Count I), account stated (Count I), vexatious delay (Count
IM), and quantum meruit/unjust enrichment (Count IV). 3D Exhibits is an Hlinois corporation.
Merchantwired, a Delaware corporation, removed the case to this court on the basis of diversity
of citizenship. Before this court is plaintiff's motion for summary judgment on Counts I and II
of the Complaint. The defendant did not file a response to plaintiff's motion. For the reasons set
forth below, 3D Exhibits’ motion for summary judgment on Count I is granted.

I Factual Background

On or about May 14, 2001, defendant entered into an agreement with the plaintiff for
trade show exhibit property and services for the Retail Systems 2001 trade show. The price of
the services on the invoice was estimated at $108,600, with $54,300 due in advance. The terms

of the contract stated that field services would be billed separately on an additional invoice. The

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defendant paid the $54,300 advance payment. On or about June 15, 2001, defendant entered into
an agreement with plaintiff for additional trade show and exhibit property and services for the
Retail Systems 2001 trade show. The price of the services on the invoice totaled $13,850. Both
the May and June agreements were signed on behalf of defendant by Cameron Cole, a vice
president of defendant. On June 26, 2001, 3D Exhibits sent defendant an invoice requesting the
second progress payment of $54,300, On July 17, 2001, Cameron Cole sent 3D Exhibits a letter
thanking them for the outstanding job they did at the Retail Systems 2001 show. On July 31,
2001, 3D Exhibits sent another invoice detailing the properties and services provided. The price
of services on the invoice totaled $169,814.64, and reflected the defendant’s payment of
$54,300. On August 17, 2001, 3D Exhibits billed the defendant for additional freight contracted
on the show site which totaled $961.54. The total amount due from all the invoices, after the
$54,300 payment, is $116.476,18.'
II. Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.

Civ. P. 56(c); Michael v. St, Joseph County, et. al, 259 F.3d 842, 845 (7" Cir. 2001). A genuine

issue of material fact exists for trial when, in viewing the record and all reasonable inferences

'The plaintiff also submitted an invoice (A-643) for a custom sign. The price of the
sign was $5,840.00. However, the invoice states that the sign was sold to Corporate Business
Systems in Littleton, CO. All of the rest of the invoices state that they were sold to Merchant
Wired and list Cameron Cole’s name. Plaintiff has not shown any connection between
Corporate Business Systems in Littleton, CO and Merchant Wired. Thus, the invoice will not
be included.

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