                           NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 05a0547n.06
                                     Filed: June 24, 2005

                                                 No. 04-1445


                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

INNOVATIVE CASE, INC.

        Plaintiff-Appellee,

v.                                                            ON APPEAL FROM THE UNITED
                                                              STATES DISTRICT COURT FOR THE
TWEDDLE LITHO CO.                                             EASTERN DISTRICT OF MICHIGAN

        Defendant-Appellant.

                                                      /




BEFORE:          DAUGHTREY and CLAY, Circuit Judges; GRAHAM, District Judge.*

        CLAY, Circuit Judge. This state law contract dispute is before this Court pursuant to

diversity jurisdiction, 28 U.S.C. § 1332. Defendant, Tweddle Litho Company (“Tweddle”), appeals

from the district court’s grant of summary judgment to Plaintiff, Innovative Case, Incorporated

(“Innovative”). The parties agree that this case is governed by Michigan law, including Michigan’s

adoption of the Uniform Commercial Code (“U.C.C.”) See M.C.L. § 1101, et seq..

        This case centers on Tweddle’s rejection of 28,000 leather portfolios supplied by Innovative

pursuant to a contract between the parties. When Innovative sued to recover the contract price of


        *
          The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.
                                            No. 04-1445

the rejected portfolios, Tweddle pointed to two alleged defects in the portfolios as justification for

its rejection. The district court determined that Tweddle had waived its right to rely on the first

alleged defect and had failed to make any showing that the second defect existed, except with

respect to nineteen of the 28,000 portfolios. The district court therefore granted summary judgment

to Innovative, and ordered Tweddle to pay damages, interest, and costs in the amount of

$219,141.34. For the reasons that follow, we AFFIRM the district court in all respects.

                                         BACKGROUND

I.     Facts

       Innovative, an Illinois corporation with its principal place of business in Illinois, imports

cases of various kinds, including leather portfolios, which are manufactured overseas for Innovative,

and supplies them to customers in the United States. Tweddle is a printing company incorporated

in Michigan, with its principal offices in Michigan. This case arises from an agreement between the

two parties that Innovative would supply Tweddle with leather portfolios for use in glove box kits

that Tweddle, in turn, supplied to the Ford Motor Company.

       Tweddle began supplying glove box kits for Lincoln vehicles to Ford Motor Company in

2000. Previously, Ford had purchased portfolios directly from The Beanstalk Group. Tweddle had

agreed to continue to purchase portfolios from The Beanstalk Group “as a pass-through,” that is,

without marking up the price The Beanstalk Group charged for the portfolios. Thus, any profit

Tweddle made on the glove box kits while using The Beanstalk Group as a supplier on a pass-

through basis came from the other components of the kit.




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       Despite that arrangement, in approximately the middle of 2001, representatives of Tweddle

were introduced to David Schafer (“Schafer”), the owner of Innovative. At an initial meeting,

Innovative was given a sample of a black leather Lincoln portfolio, manufactured by The Beanstalk

Group. Innovative’s supplier in China, Palibon Leather Products Company, Ltd. (“Palibon”) then

manufactured sample portfolios, based on the portfolio provided by Tweddle to Innovative, which

were presented to and approved by Tweddle.

       On October 22, 2001, Tweddle issued a purchase order to Innovative for 50,000 leather

Lincoln portfolios for $7.46 each. The purchase order noted “payment is based upon a successful

inspection of product by Tweddle Litho and that the product is identical to a sample provided by

Innovative Case that Tweddle Litho has approved.” The purchase order also contained the following

inspection clause: “Tweddle Litho Company . . . shall be afforded the right to verify at the source

that the purchased product conforms to the specified requirements . . . Such verification shall not

be used as evidence of effective control of quality. Verification by the Tweddle Litho Company

shall not absolve the Seller of the responsibility to provide acceptable product, nor shall it preclude

subsequent rejection by the Tweddle Litho Company.” The purchase order was drafted by Eric

Taylor of Tweddle.

       Subsequently, at Tweddle’s request, Innovative submitted a specifications sheet to Tweddle

detailing “material specifications for the Lincoln Portfolio.” The “spec sheet” does not specify the

depth of embossing of the Lincoln name and logo. There is no evidence on the record that Tweddle

made any objection to the spec sheet.




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        David Schafer signed the purchase order on January 23, 2002. Innovative arranged for the

portfolios to be produced by Palibon. Schafer stated in an affidavit that he “understood that the

Purchase Order provided for a single inspection which, in accordance with standard industry

practice, would occur in China before the portfolios were shipped. Standard industry practice is that

goods are inspected overseas and accepted before shipment.” In contrast, Taylor, Tweddle’s

purchasing agent, testified that he asked Jerry See-Tow (“See-Tow”), director of Tweddle’s

Singapore office, to arrange an inspection, and that “typically the initial inspections over in China

are pre-ship inspections to make sure there are no gross errors in the product or gross defects in the

product.”

       See-Tow retained Bureau Veritas Consumer Product Services (“Bureau Veritas”) to inspect

the portfolios. According to Jack Wong (“Wong”), Palibon’s owner and president, See-Tow

attended the inspection with a representative of Bureau Veritas and spent time in the inspection room

comparing production portfolios to the approved sample. Wong’s affidavit also states that See-Tow

authorized him to complete production and ship the portfolios, and indicated that no further

inspection was necessary.

       The Bureau Veritas inspection report, dated April 6, 2002, which was sent to See-Tow,

notes that “[t]he hot stamping of ‘Lincoln’ logo was not as deep as that against the client’s approved

sample.” The inspection report also indicates that “the inspection findings comply with acceptance

criteria. It is concluded that the shipment is considered as conformance with Tweddle Litho’s

requirement.” Bureau Veritas’ inspection report contains the following note: “The above reflects

our findings at the time and place of inspection. This report does not relieve sellers/suppliers from



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their contractual responsibilities with regard to quality/quantity of this delivery nor does it prejudice

buyers’ right of claim towards sellers/suppliers for compensation for our random inspection or

occurring thereafter.”

        The inspection report’s observation about the light embossing is also made in Bureau

Veritas’ inspection data sheet. Schafer stated in his affidavit that Wong faxed him a copy of that

data sheet on April 5, 2002, the day after the inspection occurred, and that he in turn faxed the data

sheet to Eric Taylor at Tweddle, also on April 5.

        In May 2002, the portfolios were shipped to Tweddle’s distribution facility in Clinton

Township, Michigan. Brad Hannah (“Hannah”), vice president of Tweddle, testified in his

deposition that Bruce Hill, the production supervisor of the distribution center, told him that Hill felt

there was “a quality issue with the Lincoln leather portfolios.” Specifically, Hill told him that the

embossing of the Lincoln logo was not as deep as “they were used to seeing on the line,” and that

“there were some crooked embossing of the same image.” Subsequently, Taylor, Hannah, and Brian

Suszek (also of Tweddle) went to Tweddle’s distribution center to examine the portfolios.

According to Taylor, they found “that the logos in some cases weren’t at the right depth. And in

other cases, they were a combination of not the right depth and crooked.” Asked what percentage

of the portfolios had these problems, Taylor responded that he had no idea. Tweddle initially

rejected all the portfolios.

        Taylor called Schafer and informed him that there was a “quality issue,” and asked him to

come to the distribution center. Together, Schafer, Taylor, Suszek, and Andrew Tweddle looked

at several portfolios. Schafer did not agree that the portfolios were unacceptable.



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                                            No. 04-1445

       Tweddle then determined that it would inspect the portfolios using samples of “acceptable

product,” and “non-acceptable product,” as agreed upon by Andrew Tweddle, Suszek, and Taylor.

Tweddle’s major concerns were with the depth of the embossing of the logo, and any skewing of

the logo.

       Following this internal inspection, Tweddle agreed to accept 22,000 of the portfolios at the

full purchase price of $7.46. Ford Motor Company accepted and paid $11 each for these 22,000

portfolios.

       The remaining 28,000 portfolios are in storage in a warehouse owned by Schafer’s brother

in Wixom, Michigan. Tweddle alleges it was forced to obtain portfolios from The Beanstalk Group

at a higher price in order to fulfill its obligations to Lincoln. On August 26, 27, and 28, 2003,

Schafer personally inspected all of the Lincoln leather portfolios that were rejected by Tweddle. He

found that the embossed Lincoln name and logo was skewed only nineteen of those portfolios

II.    Procedural History

       Innovative filed a complaint in the United States District Court for the Eastern District of

Michigan on September 12, 2002, alleging that Tweddle had breached its contract with Innovative

by refusing to pay Innovative the full contract price for all 50,000 portfolios Innovative supplied to

Tweddle. Innovative filed a first amended complaint on November 14, 2002.

       On November 19, 2002, Tweddle filed an answer to Innovative’s complaint, which asserted

that 28,000 of the portfolios supplied by Innovative were rejected as non-conforming. Tweddle also

filed a counterclaim, charging that it incurred “cover” damages because it was required to purchase

28,000 portfolios at a price higher than the contract price.



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                                            No. 04-1445

       On July 31, 2003, both parties moved for summary judgment. A hearing on the summary

judgment motions was held by the district court on October 15, 2003. The same day, the court

entered an order denying both parties’ motions for summary judgment. In addition, the court found

that “Defendant/Counter-Plaintiff Tweddle has waived its breach of contract claim to the extent that

it is based on the depth of the embossed log, unless Tweddle can demonstrate that the final portfolios

were more shallow than the 500 sample portfolios inspected in China.”

       On December 29, 2003, Innovative again moved for summary judgment, on two grounds.

First, Innovative contended that because the 500 sample portfolios inspected in China were not

identified, it would be impossible to prove that any of the rejected portfolios had embossing lighter

than the sample portfolios. Secondly, Innovative argued that Tweddle had submitted no evidence

to create a genuine factual dispute as to the number of rejected portfolios with skewed logos.

Because Tweddle had not alleged any defects other than light embossing and skewed logos,

Innovative urged the district court to grant summary judgment. That motion was granted by an order

of the district court entered on February 24, 2004. Final judgment in favor of Innovative and against

Tweddle was entered in the amount of $204,045.92, pre-judgment interest in the amount of

$13,401.37, and taxable costs in the amount of $1,694.05, on March 11, 2004.

       Tweddle filed a timely notice of appeal to this Court on April 7, 2004.

                                           DISCUSSION

I.     Standard of Review

       We review a district court’s grant of summary judgment de novo, using the same standard

applied by the district court. Hamby v. Neel, 368 F.3d 549, 556 (6th Cir. 2004)(citing Johnson v.



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                                            No. 04-1445

Econ. Dev. Corp., 241 F.3d 501, 509 (6th Cir. 2001)). Summary judgment is appropriate when there

are no genuine issues of material fact. Id.; FED. R. CIV. P. 56(c). In reviewing the district court’s

grant of summary judgment, we must view the evidence and draw all reasonable inferences in the

light most favorable to the non-moving party. Combs v. Int’l Ins. Co., 354 F.3d 568, 576-77 (6th

Cir. 2004)(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)); Williams v. Int’l Paper

Co., 227 F.3d 706, 710 (6th Cir. 2000); Smith v. Thornburg, 136 F.3d 1070, 1074 (6th Cir. 1998).

       The moving party initially bears the burden of proving that there is no genuine issue of

material fact. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989). This burden can

be satisfied by reliance on any of the evidentiary sources listed in Federal Rule of Civil Procedure

56(c) (pleadings, depositions, answers to interrogatories, admissions, and affidavits), or by

indicating the failure of the non-moving party to produce evidence creating a genuine issue of

material fact. Id. at 1478.

       If the moving party satisfies this burden, “an adverse party may not rest upon the mere

allegations or denials of the adverse party, but . . . must set forth specific facts showing that there

is a genuine issue for trial.” FED. R. CIV. P. 56(e). If the evidence does not suffice to reasonably

support a jury verdict in favor of the non-moving party, the motion for summary judgment will be

granted. Street, 886 F.2d at 1477; see also Cox v. Kentucky Dept. of Transp. 53 F.3d 146, 150 (6th

Cir. 1995). “The mere existence of a scintilla of evidence” in support of the non-moving party will

not suffice to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986).

II.    The district court correctly ruled that Tweddle waived any right to reject the portfolios
       for light embossing

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                                            No. 04-1445

       As noted above, the district court determined in a pre-judgment order that Tweddle had

“waived its breach of contract claim to the extent that it is based on the depth of the embossed logo,

unless Tweddle can demonstrate that the final portfolios were more shallow than the 500 sample

portfolios inspected in China.” The district court presumably did so on the basis of evidence that

Tweddle was aware that the embossed logo was lighter on the sample portfolios that were inspected

in China after production than it was on the sample Tweddle approved before production, and yet

permitted shipment of the portfolios to go forward. When Tweddle failed to make the showing

required by the district court’s order, the district court entered summary judgment in favor of

Innovative.

       On appeal, Tweddle has inaccurately characterized the district court’s disposition of this

issue, alleging that the district court determined that Tweddle irrevocably accepted the portfolios

in question upon “preliminary inspection in China.” As just explained, the district court’s grant of

summary judgment on this issue was based not on a determination that the inspection in China

constituted “irrevocable acceptance” but rather, that Tweddle’s awareness of the alleged defect of

light embossing prior to shipment constituted a waiver of the right to subsequently reject the

portfolios based on that defect. We agree with the district court.

       Michigan law states that waiver of a contractual right “may be shown by proof of express

language of agreement or inferably established by such declaration, act, and conduct of the party

against whom it is claimed as are inconsistent with a purpose to exact strict performance.”

Fitzgerald v. Hubert Herman, Inc., 179 N.W.2d 252, 254 (Mich. App. 1970) (citing Strom-Johnson




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                                           No. 04-1445

Construction Co. v. Riverview Furniture Store, 198 N.W. 714 (Mich. 1924); Bissell v. L. W. Edison

Co., 156 N.W.2d 623 (Mich. App. 1967)).

       Uncontradicted evidence presented by Innovative reflected the following facts: Jerry See-

Tow, the director of Tweddle’s Singapore office, accompanied a representative of Bureau Veritas

hired by Tweddle, to an inspection of portfolios produced for Tweddle in China at the Palibon

production plant. See-Tow indicated to the president of Palibon that the portfolios were suitable for

shipment and that no further inspection was necessary. Furthermore, in an inspection report

provided by Bureau Veritas to See-Tow prior to shipment, it was clearly indicated that “[t]he hot

stamping of ‘Lincoln’ logo was not as deep as that against the client’s approved sample,” yet the

shipment was considered in conformance nonetheless. This information was also included in an

inspection data sheet made available to Eric Taylor, Tweddle’s purchasing agent, prior to shipment.

       Tweddle’s conduct in indicating that the portfolios were suitable for shipment and in

instructing Palibon to ship the order, despite knowing that the embossing was lighter than on the

approved sample, is inconsistent with a purpose to exact strict performance with respect to the depth

of the embossing. We therefore affirm the district court’s determination that Tweddle waived its

right to reject the portfolios on the ground that the embossing was lighter than on the approved

samples.

III.   The district court correctly ruled that only nineteen of the portfolios could be rejected
       for skewed embossing


       The only other defect alleged by Tweddle as justification for the rejection of the portfolios

is that the embossed Lincoln name and logo was skewed on some of the portfolios. With respect


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to that issue, Innovative presented the affidavit of David Schafer, who testified that over the course

of three days in August, 2003, he personally inspected all of the 28,000 portfolios rejected by

Tweddle, and found that only nineteen of them were “slightly crooked” and non-conforming.1

       Tweddle presented the affidavit of Eric Taylor, who testified that, also in August 2003, he

spent “less than an hour” going through some of the hundreds of boxes of rejected portfolios. Based

on “the limited sampling [he] conducted,” Taylor noted that some of the boxes (which each

contained thirty portfolios) contained no portfolios with skewed logos, while others had more than

one.   He “would estimate that there was one skewed logo per box or two,” and would

“conservatively estimate there are more than 500 skewed logos.” He noted, though, that “he would

have to conduct a complete count of 28,000 portfolios to arrive at an exact number.”

       Taylor’s affidavit is far too speculative to satisfy Tweddle’s burden of responding to

Innovative’s motion for summary judgment, which was supported with specific evidence. Federal

Rule of Civil Procedure 56(e) requires that in responding to a well-supported motion for summary

judgment, an adverse party “must set forth specific facts showing that there is a genuine issue for

trial.” Tweddle presented no “specific facts” but instead only the rough estimates offered in

Taylor’s affidavit. “[T]his circuit has long held that ‘[m]ere conclusory and unsupported allegations,

rooted in speculation, do not meet [the] burden’” of demonstrating that there is a genuine issue for




       1
        Incredibly, Tweddle entirely ignores this affidavit and repeatedly insists on relying on
Schafer’s deposition testimony, which pre-dated his inspection of August 2003, to assert that
Schaffer has never inspected the portfolios and that Innovative has no evidence that the portfolios
are conforming.

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                                          No. 04-1445

trial. Bell v. Ohio State University 351 F.3d 240, 253 (6th Cir. 2003) (quoting Bryant v.

Commonwealth of Kentucky, 490 F.2d 1273, 1274 (6th Cir.1974) (per curiam)).

       We conclude that the district court appropriately determined that without other, reliable

evidence, Tweddle had failed to demonstrate that there was a genuine issue of material fact as to

whether more than nineteen of the portfolios were skewed. In the absence of evidence of non-

conformance as to the remaining portfolios, there was, furthermore, no issue of material fact as to

whether Tweddle breached its contract by refusing to pay for them, and the district court

appropriately entered summary judgment against Tweddle.

                                        CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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