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United States 8 December 2000 Federal District Court [Illinois] (Zapata Hermanos v. Hearthside Baking)
[Cite as: http://cisgw3.law.pace.edu/cases/001208u1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20001208 (8 December 2000)

JURISDICTION: United States [federal court]

TRIBUNAL: U.S. District Court, Northern District of Illinois, Eastern Division [federal court of 1st instance]

JUDGE(S): Milton I. Shadur


CASE NAME: Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., d/b/a Maurice Lenell Cooky Company

CASE HISTORY: We publish nine parts of the record of these proceedings:
-      8 December 2000, Ruling on pre-trial motions [Case text presented below]
-      18 July 2001, Memorandum opinion and judgment order [Court's ruling on buyer's motions for judgment as a matter of law and for a new trial]
-      19 July 2001, Supplement to Memorandum opinion and judgment order [Supplement to Court's opinion dated 18 July 2001]
-      15 August 2001, Memorandum opinion and order [Ruling on second motion by buyer attacking the judgment]
-      22 August 2001, Memorandum opinion and order [Ruling on seller's motion for an award of attorney's fees: ruling on seller's motion advanced against buyer's litigation counsel]
-      28 August 2001, Memorandum opinion and order [Ruling on seller's motion for an award of attorney's fees: ruling on seller's motion advanced against buyer]
-      12 February 2002, Memorandum opinion and order [Ruling related to amount of attorney's fees]
-      13 March 2002, Memorandum opinion and order [Ruling on amount of attorney's fees]

The most recent proceeding in this case is an appellate ruling by the U.S. 7th Circuit Court of Appeals handed down on 19 November 2002. The Circuit Court of Appeals reversed and remanded the District Court's ruling on attorneys' fees. A petition for certiorari was filed with the U.S. Supreme Court and denied.

SELLER'S COUNTRY: Mexico (plaintiff)

BUYER'S COUNTRY: United States (defendant)


Classification of issues present

APPLICATION OF CISG: Yes [In the final pre-trial order, the parties agreed that the CISG governed]


Key CISG provisions at issue: No evaluation of CISG provisions at this phase of the proceedings

Classification of issues using UNCITRAL classification code numbers:


Descriptors: Unavailable

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Editorial remarks

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Citations to case abstracts, texts, and commentaries


(a) UNCITRAL abstract: Unavailable

(b) Other abstracts



Original language (English): Text presented below; see also 2000 U.S. Dist. LEXIS 17959 and 2000 WL 1809988 (N.D. III)

Translation: Unavailable



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Case text

Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., etc.

No. 99 C 4040

United States District Court, Northern District of Illinois, Eastern Division

Decided: 8 December 2000



This action has reached the readiness-for-trial stage: With the parties having provided this Court with a revised final pretrial order ("FPTO") in response to its comments on the litigants' original jointly proposed form of that order, all that remains is to rule on their respective motions in limine and to set a trial date. This memorandum opinion and order first addresses the three motions in limine that have been submitted by defendant Hearthside Baking Co ., Inc., d/b/a Maurice Lenell Cooky Co. [buyer] and then turns to the three motions in limine submitted by plaintiff Zapata Hermanos Sucesores, S.A. [seller], successor by merger to original plaintiff Envases de Hoja de Lata, S.A. de C.V. Each side has responded to the other's motions, so that all are ripe for decision.

[Buyer's] Motions

Economic Effect of the Litigation

In response to [buyer's] concern as to a play for sympathy on [seller's] part,[1] [seller] agrees that it will not offer "any reference pertaining to the pecuniary position of the parties or any comment regarding the effect of the judgment on any party as it relates to any economic hardship, wealth or poverty." But [seller] properly says that the prohibition must cut both ways. It is right, and this Court so orders.

Settlement Offers

Again [seller's] response is persuasive -- this time in distinguishing properly, as does Fed.R.Evid. ("Evidence Rule") 408 itself, among the purposes for which evidence of settlement offers or attempts to compromise is excludable. In that respect such offers or compromise efforts made after suit was filed on June 17, 1999 will not be admitted "to prove liability for or invalidity of [seller's] claim or its amount" (Evidence Rule 408).[2]

But as [seller] describes the parties' discussions antedating the lawsuit, those were not within the purview of Evidence Rule 408 at all. For one thing, they were not really compromise negotiations -- instead they were collection efforts. And for another, they are probative for purposes other than to prove [buyer's] liability or the specific amount of that liability.

Hence [buyer's] motion is granted only to the limited extent that it relates to any actual compromise negotiations that may have taken place after this action was filed. In all other respects it is denied. Any further particularization of this ruling will be addressed at trial as and when individual items of evidence are sought to be offered and may then be objected to.

Malnove Litigation

[Seller] also musters convincing arguments against the exclusion of any evidence regarding [buyer's] unsuccessful defense in Malnove v. Hearthside Baking, 95 C 4861. Again [buyer's] attempt to invoke an evidentiary rule -- this time Evidence Rule 404(b) -- seeks to burden that rule with more baggage than it can carry.

[Seller's] response makes it clear that its contemplated introduction of evidence as to the Malnove litigation, which involved [buyer's] unsuccessful effort to stiff a different supplier, is not offered as "bad man" evidence -- that is, as mere propensity evidence to show that having sinned once, [buyer] is assertedly more likely to have sinned again. Instead [seller's] showing of the evidence's relevance for one or more other purposes -- purposes that Evidence Rule 404(b) itself confirms can support admissibility -- is both cogent and persuasive.

Nor does Evidence Rule 403 operate to trump such admissibility. To be sure, the evidence at issue is bound to be prejudicial to [buyer] in the same limited sense that all evidence, to be relevant (and hence admissible) at all, must be prejudicial to the party against whom it is admitted. But Evidence Rule 403 speaks not of prejudice but of unfair prejudice, and for the reasons explicated by [seller] such unfairness is not at all present in the admission of the disputed evidence.

For the several reasons stated in [seller's] response, then, the Malnove litigation and its outcome are fair game for introduction into this lawsuit. As with the prior motion, the specifics of such admissibility may await the trial.

[Seller's] Motions

Stricken or Unpleaded Matters

In this motion [seller] seeks to bar categories of evidence that it packages in three categories: (1) evidence related to stricken damages and defenses; (2) evidence related to unpleaded claims for damages; and (3) evidence related to unpleaded defenses. Each of those matters will be considered in turn.

As to the first of those, [buyer] agrees that it will not seek to go into any claimed infringement of its trade dress, trademarks, copyrights or other intellectual property, nor will it advance any claimed breach of fiduciary duty. But despite this Court's refusal to have permitted a late-advanced second amended complaint asserting [seller's] alleged failure to deliver to [buyer] certain artwork or related items (a claim that is now the subject of a separate lawsuit by [buyer] before another judge), [buyer] urges that the exclusion of such evidence from this case would severely prejudice its defense here. As [buyer] has it, such non-delivery is relevant as a reason for its nonpayment of the amounts due to [seller] for merchandise.

Baldly framed in those terms, it would seem likely to inject into this lawsuit the question of [buyer's] right or lack of right to those materials -- the hotly contested issue that will be tried in the separate lawsuit. Again this Court is not prepared to add a trial within a trial to this litigation. For the present, [seller's] motion is granted, although this Court is willing to listen to any proposal by [buyer] that would enable it to advance that reason for its nonpayment without giving it an unwarranted Good Housekeeping seal of approval.

As for evidence regarding unpleaded damages, [buyer] responds that it has no intention of going beyond what has been identified in the FPTO. This Court reads that response as an agreement to the granting of the motion.

Finally, as to evidence in support of unpleaded defenses, [buyer] claims a lack of clarity. But the short answer is that sucha motion is well-founded and is granted, though it is of course possible that individual rulings may have to be made at trial as to what fits within the barred description.

Unidentified Deficiencies in [Seller's] Goods; Unidentified Payments by [Buyer]

Although this Court reads [seller's] second motion in limine as straightforward in both its scope and its purpose, [buyer's] claimed response does nothing more than muddy the waters. All that [seller] asks is that [buyer] be precluded from advancing any contentions that have not been disclosed during the discovery process in two categories -- any asserted deficiencies in [seller's] deliveries of merchandise to [buyer], and any asserted payments by [buyer] that it has not previously identified. To deny that motion would be to subvert the entire purpose of discovery, as contrasted with the old sporting or fox-hunt approach to litigation. That motion too is granted.

Additional Terms and Conditions of Purchase

Here [seller] points to [buyer's] consistent position throughout the discovery process as to what constituted the parties' agreement regarding the terms and conditions under which they were carrying on business -- consistent, that is, until [buyer] sought to assert late in the day that the reverse side of some of its purchase orders contained some provisions that became part of the parties' contractual arrangement. [Buyer's] response appears to dodge the issue posed by the undisputed fact that its answers during the discovery process were detailed and contained no such assertion. [Buyer] will not be permitted to shift ground at this late date, which is not only post-discovery but is also essentially on the eve of trial. Again [seller's] motion is granted.


In summary, [buyer's] three motions in limine are granted in part and denied in part. That relating to the economic effect of the litigation is granted on condition that its prohibition applies to both parties. That relating to settlement offers is granted to a limited extent, but is denied in principal part. And that relating to the Malnove litigation is denied.

As for [seller's] motions in limine, all three are granted for the reasons previously stated here. To the extent that [buyer] has characterized any of the [seller's] motions as unclear or overbroad, it will make more sense to address any particularization in the environment of the trial itself.

Finally, this action is set for trial to begin at 9:30 a.m. January 29, 2001. Each party is ordered to tender its proposed jury instructions by a filing in this Court's chambers on or before January 15 (to that end, counsel are urged to confer between themselves well in advance, so that they can maximize the extent to which instructions may be tendered on an agreed basis, correspondingly minimizing the number of disputed instructions). Shortly before January 29 this Court's minute clerk will communicate with counsel about the scheduling of the pretrial voir dire conference.


1. Long gone are the days when a Daniel Webster could move the Supreme Court -- and, as is reported, could move listeners to tears -- by his peroration in Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1818). It is, Sir, as I have said, a small college. And yet there are those who love it!

2. [Seller] also asserts that [buyer] has never made anything that constitutes a settlement offer (as distinguished from a demand that [seller] drop its claims), so that "there is nothing to introduce or preclude." This Court has no way of knowing whether that is accurate, but it is irrelevant in light of the ruling in the text.

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