United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
nearly a decade, plaintiff Andrea Distributing, Inc.
transported dairy products to defendant Dean Foods of
Wisconsin, LLC’s customers in northern Wisconsin.
During the same time, Andrea also had a distribution
agreement with Dean Foods that permitted it to purchase dairy
products from Dean Foods and resell them to Andrea’s
own customers. The parties’ relationship deteriorated
in 2014, when Andrea tried to insist on higher hauling rates.
Dean Foods briefly accommodated Andrea, but it found
alternative haulers at rates lower even than Andrea’s
March 2015, Dean Foods informed Andrea that it was
terminating the hauling relationship. The termination dealt a
financial blow to Andrea. In protest, Andrea stopped paying
down its past-due balance for the products that it had
purchased under the distribution agreement. But that just led
Dean Foods to terminate the distribution relationship a few
months later for nonpayment.
the business relationship soured, Andrea sued Dean Foods in
state court for violating the Wisconsin Fair Dealership Law
(WFDL), Wis.Stat. § 135.01 et seq. Dean Foods
removed the case to this court and counterclaimed to recover
Andrea’s past-due balance.
Foods has now moved for summary judgment on Andrea’s
affirmative claim and on the counterclaim. Dkt. 31. The court
will grant Dean Foods’s motion. Based on the undisputed
facts, the court reaches four conclusions. First, the
parties’ relationship involved two separate agreements:
a distribution agreement and a hauling agreement. Second,
although the parties’ distribution agreement was
covered by the WFDL, Dean Foods properly terminated it for
nonpayment. Third, the parties’ hauling agreement was
not covered by the WFDL, and Dean Foods was within its rights
to terminate it. Fourth, Andrea breached the distribution
agreement and it owes Dean Foods for the products that it
purchased. Dean Foods is entitled to judgment as a matter of
did not comply with this court’s procedures for
presenting factual information at summary judgment. First,
Andrea did not respond to Dean Foods’s proposed
findings of fact. As the court’s preliminary pretrial
conference order explained, “[a] fact properly proposed
by one side will be accepted by the court as undisputed
unless the other side properly responds to the proposed fact
and establishes that it is in dispute.” Dkt. 15, at 9;
see also Id. at 13-15. Second, Andrea did not
present its own proposed findings of fact, instead submitting
an affidavit from Scott Andrea generally verifying
“[t]hat the contents of [Andrea’s] brief are true
and accurate.” Dkt. 40, ¶ 4. The court’s
preliminary pretrial conference order provided clear
instructions for submitting responsive proposed findings of
fact, Dkt. 15, at 13-15, and Andrea’s catchall
affidavit did not comply with these instructions. The Seventh
Circuit has “routinely held that a district court may
strictly enforce compliance with its local rules regarding
summary judgment motions.” Schmidt v. Eagle Waste
& Recycling, Inc., 599 F.3d 626, 630 (7th Cir.
2010). Dean Foods’s reply brief aptly catalogued the
shortcomings of Andrea’s summary judgment evidence.
Dkt. 41, at 2-4. The court will accept Dean Foods’s
proposed facts as undisputed, unless the record obviously
contradicts them (and it does not). With this consideration
in mind, the court finds that the following facts are
material and undisputed.
is a Wisconsin corporation with its principal place of
business in Spooner, Wisconsin. Andrea is in the business of
hauling and distributing milk and other dairy products. It is
a small company with four employees, a single warehouse and
office building, and three refrigerated trucks for making
deliveries. Dean Foods is a dairy distribution company,
organized under Delaware law and, by virtue of the
citizenship of its members, a citizen of Delaware and Texas.
it began working with Dean Foods, Andrea had a longstanding
business relationship with another dairy distributor, Kemps
(not a party to this suit). Although the business was
successful, Andrea decided to explore other options. Andrea
concluded that Dean Foods offered “spectacular”
pricing for hauling and distributing. Dkt. 18 (Andrea Dep.
27:22-24). In 2007, Andrea decided to conclude its
relationship with Kemps and switch to Dean Foods.
relationship between Andrea and Dean Foods was two-fold:
Andrea hauled products to Dean Foods’s customers in
northern Wisconsin, and Andrea purchased products from Dean
Foods to resell to its own customers. Most of Dean
Foods’s customers in the area were institutional
customers, such as schools and large stores or retail chains.
Most of Andrea’s customers were smaller retail stores.
The parties’ relationship was governed by two separate
agreements, both of which were part oral and part
written. Dean Foods assigned different managers to
handle the hauling and distribution agreements.
hauling agreement, Dean Foods provided Andrea with a list of
deliveries to make and then reimbursed Andrea for those
deliveries. Dean Foods reimbursed Andrea regardless of
whether the customer paid Dean Foods for the products. For
the distribution agreement, Dean Foods provided Andrea with a
price list for its products. Andrea ordered products by fax
or phone, Dean Foods invoiced Andrea for the order and
delivered the products to Andrea, and Andrea resold the
products to its own customers. Neither the hauling agreement
nor the distribution agreement required Andrea to purchase
new trucks, lease new buildings, display Dean Foods’s
logo, or purchase clothing or uniforms for Andrea’s
employees. In fact, some of Andrea’s employees
continued to wear Kemps-branded apparel after the switch.
began to have financial difficulties in 2014. By September
2014, Andrea had built up a substantial past-due balance for
products that it had purchased from Dean Foods under the
distribution agreement. At Dean Foods’s request, Andrea
proposed three plans for paying down the past-due balance.
All three plans provided for increased minimum “per
stop” rates under the parties’ hauling agreement:
a $43 rate that would allow Andrea to “break
even”; a $47 rate that would allow Andrea to make a
modest profit; and a $52 rate that would allow Andrea to make
a substantial profit. Dkt. 28-1. Dean Foods cautioned Andrea
that its demand for a higher rate might lead Dean Foods to
look for other haulers. When Andrea insisted on a higher
rate, Dean Foods agreed to pay the $47 rate while it
investigated whether other haulers could do the same job for
February 2015, Dean Foods discovered that other haulers could
take over Andrea’s hauling routes for between $20 and
$30 per stop. Dean Foods contemplated dropping Andrea
immediately, but ultimately decided against doing so because
it might disrupt service to Dean Foods’s customers,
many of which were schools. In March 2015, Dean Foods offered
a compromise solution: it would pay Andrea $40 per stop for
the rest of the 2014-15 school year. Dean Foods again warned
that if Andrea would not accept the hauling rates that were
in effect for the earlier part of 2014, then Dean Foods would
consider dropping Andrea altogether after the school year.
Andrea again responded that it would be losing money at those
with Andrea’s insistence on higher hauling rates, Dean
Foods arranged to have a different company take over
Andrea’s hauling routes after the 2014-15 school year.
On March 20, 2015, Dean Foods sent Andrea a letter indicating
that it was terminating hauling services with Andrea,
effective June 7, 2015.
receiving the March 20 letter, Andrea stopped making payments
toward its past-due balance. As Andrea’s corporate
designee testified during his deposition, Andrea was
withholding payments “in contest” because
“Dean’s violated the law and owed us it or some
of it” for terminating the hauling agreement. Dkt. 18
(Andrea Dep. 89:1-22). Andrea also filed a complaint against
Dean Foods in the Wisconsin Circuit Court for Washburn County
on May 28, 2015, bringing a claim under the WFDL. Dean Foods
removed the case to this court on June 4, 2015.
of Andrea’s continued nonpayment, Dean Foods also
decided to terminate the distribution agreement. On June 4,
2015, Dean Foods wrote a letter to Andrea indicating that
Andrea had a past-due balance of $144, 169.31. The letter
informed Andrea that Dean Foods was terminating the
parties’ distribution relationship, effective 90 days
after Andrea received the letter. But the letter also
explained that Andrea could cure the deficiency and prevent
termination of the distribution agreement by paying the
entire past-due balance within 10 days. Since receiving the
letter, Andrea has not made any payments on its past-due
balance, although Dean Foods has been able to reduce the
balance by applying various billing credits and product
8, 2015, Dean Foods transferred Andrea’s hauling routes
to a new company, as indicated in its March 20 letter. Dean
Foods continued to supply Andrea with products under the
distribution agreement. But to avoid adding to the past-due
balance, Dean Foods required Andrea to pay cash on delivery
for any products that it purchased during that time.
Foods answered Andrea’s complaint and added a
counterclaim for nonpayment of amounts due under the
distribution agreement on June 19. Dkt. 3. In September 2015,
after Andrea lost its hauling routes but a few days before
the distribution agreement was set to expire, the court
denied Andrea’s motion for preliminary injunction. Dkt.
29. Consistent with the June 4 letter, the parties’
distribution agreement ended on September 3, 2015, because
Andrea had failed to pay off its past-due balance. The case
proceeded to discovery, and Dean Foods has now moved for
summary judgment. Dkt. 31.
court has subject matter jurisdiction over this case pursuant
to 28 U.S.C. § 1332, because the parties are diverse and