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W.S. International, LLC v. M. Simon Zook Company

May 12, 2011

W.S. INTERNATIONAL, LLC,
PLAINTIFF
v.
M. SIMON ZOOK COMPANY, D/B/A THE ZOOK MOLASSES COMPANY, ET AL., DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

In this diversity action, the plaintiff brings a state law conversion claim against the defendants based on the defendants‟ continued possession of a piece of machinery which the plaintiff purchased and installed at the defendants‟ Leola, Pennsylvania facility. Pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, the plaintiff filed a Motion for a Temporary Restraining Order enjoining the defendants from interfering with the plaintiff‟s right and ability to access, retrieve, and remove its equipment immediately. The plaintiff filed a supplemental memorandum of law in support of its motion. A hearing on the motion was conducted on Monday, May 9, 2011 with counsel from both sides present. The defendants filed a verified response in opposition to the plaintiff‟s motion, to which the plaintiff has responded. For the following reasons, I will grant the motion, and order that the defendants grant the plaintiff access to the plaintiff‟s equipment currently held at the defendant‟s Leola facility in order to transfer the equipment.

I. BACKGROUND

The facts are taken from the plaintiff‟s complaint. There is general agreement as to the contractual relationship between the parties and the installation of the equipment. There seems to be agreement about the deterioration of the relationship between the parties, and the court assumes that each side has a "take" on the post-contract developments. There is no real dispute, however, over the essential fact of the case at this stage: the plaintiff purchased, financed, and owns the machine in question.

The plaintiff is WS International, an Illinois limited liability company that produces and distributes food products to bakeries and related businesses. Defendant M. Simon Zook Company, doing business as the Zook Molasses Company, is based in Honey Brook, Pennsylvania. Defendant Good Food, Inc., does business as L&S Sweeteners which is based in Leola, Pennsylvania, and owned by Good Food, Inc., and M. Simon Zook Company. The defendants are in the business of blending, storing, transporting, and selling sweeteners used in the production of many food products.

In 2009, the parties entered into a business relationship whereby the plaintiff agreed to purchase its sugar from the defendants, and the defendants agreed to produce and distribute all of the plaintiff‟s fondant*fn1 product line in and from their Leola facility. In June 2009, the plaintiff purchased a 3300 pound-per-hour fondant machine for $350,000 which was installed at the facility to be used solely for the production of the plaintiff‟s highly sought after fondant. The plaintiff financed a portion of the cost and as a result the machinery is subject to a lien held by a bank in Illinois.

The complaint alleges that due to their negligence, the defendants were unable to install the machinery on time which led to a six-month delay in getting the equipment ready for the plaintiff‟s fondant production. During that delay, the plaintiff had to pay a higher price for the production of its fondant at another company in Illinois.

Eventually, the machinery in Leola started to produce some level of fondant. The level, however, was insufficient and inconsistent with the parties‟ agreement. The amount of production to which the parties agreed was 3,000 pounds of fondant every hour. The defendants were only able to produce between 500 and 2,000 pounds per hour. The plaintiff claims to have had to reject some of the fondant production as unfit for delivery. Because of these deficiencies, the plaintiff struggled to fill its customers‟ orders, and its ability to sell its product suffered.

After receiving customer complaints, the plaintiff investigated and determined that the defendants‟ production of fondant was not done in accordance with the plaintiff‟s specifications. The plaintiff shared this information with the defendants and demanded an immediate remedy of the problems including the implementation of enhanced testing of the fondant. The complaint alleges that the defendants have refused to implement the necessary practices to fix the problems.

The plaintiff‟s customers have been threatening to take their business elsewhere if the plaintiff cannot fill the orders and deliver the high quality of product the customers were accustomed to receive from the plaintiff. One of the plaintiff‟s largest customers gave it a finite extension of time in which to begin producing a sufficient amount of fondant. Failure to perform would jeopardize the plaintiff‟s relationship with that customer, cause incalculable lost revenues and profits to the plaintiff, and undermine the plaintiff‟s morale and organizational stability. The plaintiff realized that it was time to search for another partner to produce and distribute its fondant line.

To that end, the plaintiff entered into an agreement with Royal Sugar Company to produce and distribute its fondant from Royal‟s facility in Swedesboro, New Jersey. In order for Royal to begin to produce the fondant, it is imperative that the plaintiff‟s machinery be transferred to and installed at Royal‟s facility. The plaintiff insists that time is of the essence for it to transfer that equipment so it can continue the production of fondant with as little interruption and delay in business as possible.

On April 29, 2011, the plaintiff‟s attorney notified the defendants of the plaintiff‟s intention to remove the machinery from the Leola facility. Defense counsel responded that the plaintiff could get its equipment on May 3, 2011 provided it scheduled the move with the facility‟s personnel. The defendants also demanded proof of insurance for the entity that was to remove the equipment. Defense counsel added that payment of all past due balances, i.e., approximately $600,000, would need to be made by the plaintiff upon removal of the equipment.

The plaintiff‟s counsel responded that it would get the equipment on May 3 and that it would provide proof of insurance. He added, however, that the plaintiff would not pay the requested sum as it was a disputed claim between the parties. Because of some scheduling difficulties, the move was postponed to Thursday, May 5. However, at 4:18 p.m. on Wednesday, May 4, newly-retained defense counsel informed plaintiff‟s counsel that the defendants were refusing to permit the plaintiff access to the equipment until the plaintiff paid $659,371.19, in past due balances. Counsel also informed the plaintiff that the defendants were asserting an equitable lien and a retaining lien on all of the plaintiff‟s machinery currently located at the defendants‟ facility.

In its response to the plaintiff‟s motion, the defendants indicated that, despite the promise of a new machine, the plaintiff arranged for a "cannibalized, 36-year-old non-working fondant wheel" to be delivered to the Leola facility. The plaintiff asked the defendants to "repair, install, and modify the machine, as necessary to make it work." The plaintiff agreed, according to the defendants, that the defendants "would, in exchange, retain possession of the equipment until expiration or termination of the relationship." (Emphasis added). The defendants repaired and modified the machine at great expense so the production of the fondant could begin. The machine was "fundamentally ...


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