               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0319n.06

                                      Case No. 15-2564

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                              FILED
ORDOS CITY HAWTAI AUTOBODY                        )                      Jun 08, 2017
COMPANY, LTD.; INNER MONGOLIA                     )                  DEBORAH S. HUNT, Clerk
OED ENGINE COMPANY, LTD.,                         )
                                                  )
       Plaintiffs-Appellees,                      )      ON APPEAL FROM THE UNITED
                                                  )      STATES DISTRICT COURT FOR
v.                                                )      THE EASTERN DISTRICT OF
                                                  )      MICHIGAN
DIMOND RIGGING COMPANY, LLC, dba                  )
Absolute Rigging And Millwrights,                 )
                                                  )
       Defendant-Appellant.                       )


       BEFORE: BOGGS, ROGERS, and COOK, Circuit Judges.

       COOK, Circuit Judge.     A car manufacturer’s subsidiaries sued a rigging company,

claiming that the company breached several contracts requiring it to dismantle, package, and

arrange overseas transportation for two sets of industrial machines. The district court granted

summary judgment in the subsidiaries’ favor, and a jury awarded $1,214,000 in damages. The

rigging company appeals. We AFFIRM.

                                       I. Background

       Plaintiffs Ordos City Hawtai Autobody (“Ordos”) and Inner Mongolia OED Engine

Company, Ltd. (“Inner Mongolia”) (collectively, “Plaintiffs”), are wholly owned subsidiaries of

the Chinese car-manufacturing company Hawtai Motor Group (“Hawtai”). Defendant Dimond
Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


Rigging Company, LLC, d/b/a Absolute Rigging And Millwrights (“ARM” or “Defendant”),

specializes in “dismantling, rigging, packing, loading and unloading” heavy machinery in

preparation for transportation.

       In early 2011, Plaintiffs acquired two sets of automotive-manufacturing equipment from

a Chrysler plant in Twinsburg, Ohio. Ordos bought the first set, consisting of a Verson Press and

a Schuler Cut-to-Length Press (collectively, “Line-7 Equipment”), and Inner Mongolia

purchased the second, a Schuler Crossbar-Line Press (“Line-15 Equipment”). Through a series

of contracts, Ordos and Inner Mongolia hired ARM to “clean, pack, rig, and transport the

equipment for shipping to China.”

       (1) The Original Contracts

       Ordos and ARM negotiated five contracts for the Line-7 Equipment: four for washing,

packing, and rigging the equipment in preparation for loading onto cargo ships (“Line-7 Rigging

Agreements”), and one for arranging shipping from Cleveland, Ohio, to Tianjin, China (“Line-7

Transportation Agreement”). Ordos agreed to pay $2,320,000 in exchange for ARM’s services.

       In parallel fashion, Inner Mongolia executed two contracts: one for ARM to “rig,

dismantle, wash and pack [the Line-15 Equipment]” (“Line-15 Rigging Agreement, and another

for ARM to arrange the Line-15 Equipment’s transportation (“Line-15 Transportation

Agreement”). In return, Ordos agreed to pay $1,810,000.

       (2) Performance of the Original Contracts

       ARM washed, packed, and rigged the Line-7 Equipment by November 2011, and Hawtai

paid the full amount due on all Line-7 contracts. But problems arose when the cargo ship’s

crew, following an argument with the dockworkers, abandoned thirty-four pieces of the Line-7

Equipment in the Port of Cleveland. Even worse, rough seas forced the ship captain to dump a



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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


large elevator from the Line-7 Equipment into the ocean. Although ARM received a $975,000

insurance check to rebuild the elevator, it never replaced the elevator or forwarded the insurance

proceeds to the Plaintiffs.

       Complications also frustrated work on the Line-15 Equipment, and ARM missed the

target dates for both rigging and shipping. Despite ARM’s failure to fulfill its end of the bargain,

Hawtai paid the Line-15 Rigging Agreement in full and made partial payment on the Line-15

Transportation Agreement.

       (3) Amended Transportation Agreement

       By March 2013—15 months after the ill-fated shipment of the Line-7 Equipment and

14 months after the target shipping date for the Line-15 Equipment—ARM had not transported

the remaining Line-7 Equipment or any of the Line-15 Equipment. Additionally, ARM had

made no progress on reconstructing the elevator.

       To remedy these problems, the parties signed an Amended Transportation Agreement,

with Plaintiffs agreeing to pay ARM $700,000 to arrange transportation for the remaining Line-7

Equipment by March 2013 and the Line-15 Equipment by April 2013. The amended contract

also recognized that “[ARM] ha[d] obtained approval from the insurance company to begin

obtaining or constructing the Line 7 equipment, specifically the elevator.”

       (4) Performance of the Amended Transportation Agreement

       Ordos paid $500,000 pursuant to the new contract’s payment schedule, but ARM shipped

the remaining Line-7 Equipment late (April or May of 2013), shipped only some of the Line-15

Equipment, and left the remaining Line-15 parts in warehouses and on an open lot until

November 2013, when Plaintiffs sued to regain possession of their machines. By the time




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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


Plaintiffs received a court order, retrieved the equipment, and arranged their own transportation,

more than a year had passed since the contract deadline.

       (5) Procedural History

       After notifying ARM that they “consider[ed] the Agreements terminated immediately

based on ARM’s breaches and repudiation,” Plaintiffs sued in November 2013, alleging six

causes of action: (1) claim and delivery; (2) conversion; (3) declaratory relief; (4) breach of

contracts; (5) negligence; and (6) unjust enrichment. In addition to raising multiple defenses in

its answer, ARM listed nine counterclaims: (1) breach of written and oral agreements;

(2) promissory estoppel; (3) conversion; (4) intentional interference with a business relationship;

(5) fraudulent inducement; (6) negligence; (7) declaratory relief; (8) artisan’s lien and lien

foreclosure; and (9) indemnity and/or contribution.

       On May 11, 2015, Plaintiffs moved for summary judgment on their breach-of-contracts

claims and all of ARM’s counterclaims. Under Eastern District of Michigan Local Civil Rule

7.1(e)(1)(B) and Federal Rule of Civil Procedure 6(d), ARM had until June 4, 2015 to respond.1

ARM missed that deadline. After waiting five more days, the district court ordered ARM to

show cause by June 16 as to why the court should not grant Plaintiffs’ summary-judgment

motion.

       When ARM’s counsel responded to the show-cause order on June 16, he explained that

he had been on vacation all of May, checked his email only a few times per week during

vacation, and accidentally deleted the email notifying him about the summary-judgment filing.

Although “unmoved” by the excuses, the district court allowed ARM five additional days to



       1
         In its show-cause order, the district court incorrectly determined the filing deadline to
be June 1 without accounting for Federal Rule of Civil Procedure 6(d). Regardless, ARM
missed the correct deadline by five days.
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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


submit a summary-judgment response. The court warned ARM that if it filed later than June 22

or failed to “comply with the Local Rules or with th[e] Court’s Practice Guidelines, . . . the

Response [would] not be accepted.”

       ARM complied with neither directives. It filed its response on June 23—one day after

the extended deadline—and its brief violated Rule 5(e) of the Electronic Filing Policies and

Procedures for the Eastern District of Michigan (“EFP”) (“[A] response or reply to a motion

must not be combined with a counter-motion.”) and Local Rule 5.1(a)(3), which requires parties

to use 14-point font.

       ARM’s brief also disregarded the district court’s practice guidelines, which required (i) a

“Counter-Statement of Disputed Facts” that admits or denies each fact in the Plaintiffs’

“Statement of Material Facts Not in Dispute” and (ii) citations to the page numbers or sections

for any record document upon which ARM relied. Specifically, ARM mislabeled its counter-

statement, answered less than half the Plaintiffs’ facts, and cited few, if any, sections or pages

numbers. The district court therefore struck ARM’s response to summary judgment and later

denied ARM’s motion for reconsideration of the strike order.

       The district court then granted Plaintiffs’ motion for partial summary judgment and

dismissed all of ARM’s counterclaims. The case proceeded to a jury trial to determine damages

for breaches of the Line-15 and Amended Transportation Agreements, as well as the lost

elevator. The jury found damages of $239,000 for ARM’s breach of the Line-15 Transportation

Agreement and $975,000 in damages for the loss of the elevator. ARM timely appeals.




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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


                              II. The District Court’s Strike Order

       We review a district court’s decision to strike a party’s motion for abuse of discretion.

Seay v. Tenn. Valley Auth., 339 F.3d 454, 480 (6th Cir. 2003) (citation omitted). “[D]ecisions

that are reasonable, that is, not arbitrary, will not be overturned.” Id. (citation omitted).

       On appeal, ARM rehashes the litany of excuses for non-compliance presented in its

motion for reconsideration of the strike order: (1) given that EFP Rule 5(e) is ambiguous and

conflicts with both Local Rule 7.1(c)(3) and Federal Rule 56(f), the district court need not apply

Rule 5(e); (2) because ARM attempted in “good faith” to comply with the local formatting rules,

it did not “willfully” violate them; (3) the district court’s failure to notify counsel of font-size

violations in previous filings should afford ARM the chance to correct its error; and (4) the

district court should employ the least-restrictive punishment. None of these excuses convinces

us that the district court abused its discretion in striking the summary-judgment response and

denying reconsideration.

       (1) Interpreting EFP Rule 5(e), Local Rule 7.1, and Federal Rule of Civil Procedure 56(f)

       EFP Rule 5(e) provides that “[a] complaint must not be combined with a motion for

preliminary relief and a response or reply to a motion must not be combined with a counter-

motion. Papers filed in violation of this rule will be struck.” ARM attempts to read ambiguity

into the rule by questioning whether “a motion” refers to “‘any motion’ or a motion for

‘preliminary relief’ filed in connection with a complaint.” But as the district court pointed out, a

straightforward reading prohibits a party from “fil[ing] a motion response and a counter-motion

together in one document.” ARM’s convoluted interpretation of EFP Rule 5(e) contradicts the

rule’s plain language.




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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


        As for the purported conflict between EFP Rule 5(e) and Local Rule 7.1, ARM again

misconstrues the plain text. See E.D. Mich. L.R. 7.1(c)(3) (“[A] challenge to several arguments

raised in a motion for summary judgment generally must be in a single response.”). Although

Local Rule 7.1(c)(3) requires a party to include all “challenges” to a moving party’s motion

within a single responsive motion, ARM conflates “countermotion” with “challenge.” Id. But

since a “challenge” does not include countermotions, Rule 7.1(c)(3) does not require a party to

file a countermotion in combination with a response brief, and EFP Rule 5(e) and Local Rule 7.1

are therefore consistent with each other.

        Finally, ARM argues that Federal Rule of Civil Procedure 56(f) allows ARM to

“request[] judgment in its favor without filing a counter-motion,” and should therefore “trump”

EFP Rule 5(e). See Fed. R. Civ. P. 56(f). Once again, ARM misinterprets the rule. Rule 56(f)

empowers a court to grant summary judgment for a nonmoving party; it does not permit a party

to move for summary judgment in a responsive pleading. Compare id. (“[A] court may . . . grant

summary judgment for a nonmovant.” (emphasis added)) with Rule 56(a) (“A party may move

for summary judgment . . . .” (emphasis added)). And although ARM characterizes its citations

to Rule 56(f) as merely “direct[ing] the trial court’s attention to [Rule 56(f)],” its repeated

requests for “the dismissal of [Plaintiffs’] complaint in its entirety” and “judgment [to be]

entered in favor of [ARM]” clearly show ARM seeking affirmative relief (i.e., making a

countermotion) within its response brief.

        In short, because ARM fails to demonstrate any conflict between EFP 5(e) and another

rule, and because EFP 5(e) explicitly allows courts to strike “[p]apers filed in violation of this

rule,” the district court did not abuse its discretion.




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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


       (2) ARM’s good-faith effort to comply with the rules

       ARM describes its failure to comply with the font-size requirement as unintentional and

“non-willful.” Relying on Federal Rule of Civil Procedure 83—which prohibits a court from

enforcing a rule of form “in a way that causes a party to lose any right because of a nonwillful

failure to comply”—ARM argues that the district court erred by striking its response based on

the incorrect font size, especially given the two-and-a-half business days it had to submit its

response. Its arguments lack merit.

       ARM’s violation of the font-size requirement may seem trivial, but not when considered

in the context of ARM’s other violations—several of which go beyond mere formatting errors.

The district court explained when vacating the show-cause order that it would only accept the

tardy response brief—which by then was nearly two weeks late—if ARM complied with all the

local rules and practice guidelines. In blatant disregard of the district court’s accommodation

effort, ARM proceeded to violate multiple local rules and practice guidelines.

       We also agree with the district court that the two-and-one-half-day time constraint was of

ARM’s own making. Even accepting ARM’s explanation that it accidentally deleted the initial

notification, two other emails would have apprised ARM of Plaintiffs’ summary-judgment

motion: a notice that Plaintiffs had filed a “Statement of Material Facts Not In Dispute” and a

notice of the hearing on the motion for summary judgment. At a minimum, the hearing notice—

emailed eighteen days after the filing of summary judgment—gave sufficient notice for ARM to

request extra time. Instead, as the district court observed, ARM “waited an additional eleven

days for [the court] to issue a Show Cause Order.”

       Last, ARM misconstrues the time available for completing its tardy brief. Counting the

weekends—which ARM excludes from its tally—ARM had thirteen days from the time the



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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


district court issued the show-cause order. Even counting just the days after the court vacated its

show-cause order, ARM had five full days to submit its response.

       (3) The district court’s failure to notify ARM of errors in its response brief

       Under Local Rule 11.1, the district court must notify ARM of any filing errors and

provide a reasonable opportunity to amend the brief. See E.D. Mich. L.R. 11.1. ARM contends

that the district court neither notified ARM of the font-size or the inclusion-of-a-countermotion

errors, nor provided ARM a chance to correct its blunders.

       Although the district court did not warn of the specific violations that ARM cites, the

district court’s show-cause order notified ARM of its failure to submit a timely response brief (a

violation of Local Rule 7.1) and gave ARM an opportunity to rectify its tardiness. Furthermore,

the show-cause order warned ARM that the court would reject any response brief that failed to

meet the extended deadline or conform to the rules and practice guidelines. Given the court’s

admonitions and the deadline extension, ARM had ample notice and opportunity to comply with

the rules and the show-cause order.

       ARM makes one final point regarding notification: many of its previous filings used

either 11- or 12-point font (rather than the mandated 14-point font), yet the court did not employ

the recommended EFP procedure for informing parties of such errors. EFP Appendix, Ex. A

(“With each e-filing error or instance of noncompliance[,] a Notice of E-Filing Error or Notice of

Non-Compliance will be generated and served on the filing user.”). The court’s (or the EFP

administrator’s) failure to generate an e-notice for prior violations, however, does not relieve

ARM of its independent responsibility to adhere to the rules.




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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


       (4) Imposing the “least-restrictive” sanction

       ARM argues that because the strike order was the first time the court notified ARM of its

failure to use the right font size, the district court should have imposed a less “restrictive”

penalty. See E.D. Mich. L.R. 11.1. But in light of the repeated warnings and the bevy of rule

violations, it was reasonable for the court to strike the response brief.

       In short, because ARM fails to identify how the district court’s decision to strike ARM’s

brief was arbitrary or unreasonable, the district court did not abuse its discretion.

                                 III. Summary Judgment Order

       This court reviews the district court’s grant of summary judgment de novo. Stryker Corp.

v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 842 F.3d 422, 426 (6th Cir. 2016) (citation

omitted).   “Summary judgment is appropriate when, construing the facts and drawing all

reasonable inferences in favor of the nonmoving party, there is no genuine dispute regarding any

material fact and the moving party is entitled to judgment as a matter of law.” Baker Hughes

Inc. v. S&S Chem., LLC, 836 F.3d 554, 559–60 (6th Cir. 2016) (citing Rocheleau v. Elder Living

Constr., LLC, 814 F.3d 398, 400 (6th Cir. 2016); Fed. R. Civ. P. 56(a)). Where a summary

judgment motion goes unopposed, this court may rely “on the facts advanced by the movant,”

Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404–405, 407 (6th Cir. 1992), but must still

“review carefully the portions of the record submitted by the moving party to determine whether

a genuine dispute of material fact exists,” F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 630

(6th Cir. 2014).

       Because this is a diversity action based on state law claims, this court applies the

substantive law of the forum state’s highest court. Equitable Life Assurance Soc. of U.S. v. Poe,

143 F.3d 1013, 1016 (6th Cir. 1998) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).



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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


       (1) Affirmative Defense of Illegality

       ARM argues that Hawtai’s agents received illegal “kickbacks” in exchange for approving

the contracts, thereby voiding several contracts ab initio. See Michelson v. Voison, 658 N.W.2d

188, 190 (Mich. Ct. App. 2003) (“Contracts founded on acts prohibited by a statute, or contracts

in violation of public policy, are void.” (citing Maids Int’l, Inc. v. Saunders, Inc., 569 N.W.2d

857 (Mich. Ct. App. 1997)). But ARM may not raise this illegality defense on appeal because it

failed to raise it below and, in any event, the record lacks evidence supporting ARM’s theory.

       Under the federal rules, an illegality defense constitutes an affirmative defense, Fed. R.

Civ. P. 8(c), and “[a]s a general rule, failure to plead an affirmative defense results in [forfeiture]

of that defense.” Old Line Life Ins. Co. of Am. v. Garcia, 418 F.3d 546, 550 (6th Cir. 2005). But

we may excuse a failure to comply with this rule where the plaintiff “receives [both] notice of an

affirmative defense by some means other than pleadings” and a reasonable opportunity to

respond. Huss v. King Co., 338 F.3d 647, 651–52 (6th Cir. 2003); see Rogers v. I.R.S., 822 F.3d

854, 856–57 (6th Cir. 2016) (affirming the district court’s decision to consider defendant’s

affirmative defenses for the first time at summary judgment where plaintiff suffered no prejudice

or surprise). Furthermore, the Michigan Supreme Court has held that if illegality is apparent

from either the face of the contract or the evidence, a party may raise the defense for the first

time at any point during litigation, even on appeal. Meek v. Wilson, 278 N.W. 731, 736 (Mich.

1938) (noting also a line of cases that hold the opposite).

       ARM failed to plead illegality as an affirmative defense. Although ARM’s answer to

Plaintiffs’ complaint describes $130,000 in “Personnel Expenses [that] ha[ve] not yet been

reimbursed,” it neither characterizes those payments as kickbacks nor raises an illegality defense.

Likewise, ARM’s amended counterclaims mention “kickbacks” multiple times under a



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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


promissory-estoppel claim, but fail to allege that Plaintiffs awarded the contracts contingent on

the kickbacks. Moreover, ARM’s list of defenses in its pleading makes no mention of illegality.

       ARM also fell short of raising the defense in any way that would give Plaintiffs fair

notice. ARM attempted to raise illegality in its tardy summary-judgment response, but as

explained above, the district court struck the entire submission from the record. ARM tried once

more to bring up the illegality defense by filing a “second” summary-judgment motion, styled as

a “Motion in Limine,” but the court rejected this maneuver.

       Finally, because none of the contracts describe acts against public policy or law, and

ARM has failed to identify evidence in the record demonstrating illegality, this court has no

occasion for finding the contracts illegal. See Meek, 278 N.W. at 736.

       (2) Breach of Contracts

       To recover on a breach-of-contract claim under Michigan law, a party must show: “1) the

existence of a contract between the parties, 2) the terms of the contract, 3) that defendant

breached the contract, and 4) that the breach caused the plaintiff injury.”2 Timmis v. Sulzer

Intermedics, Inc., 157 F. Supp. 2d 775, 777 (E.D. Mich. 2001) (citing Webster v. Edward D.

Jones & Co., L.P., 197 F.3d 815, 819 (6th Cir. 1999)).

           A) Line-7 Elevator

              i. Terms of the Contracts

       When interpreting a contract, “Michigan courts ‘examine contractual language and give

the words their plain and ordinary meanings.’” Certified Restoration Dry Cleaning Network,

LLC, v. Tenke Corp., 511 F.3d 535, 544 (6th Cir. 2007) (alterations omitted) (quoting Coates v.

       2
        Because ARM does not challenge the existence of the contract, and the district court left
the damages amount for trial, we analyze only the terms of the contract and whether a breach
occurred.


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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


Bastian Bros., Inc., 741 N.W.2d 539, 543 (Mich. Ct. App. 2007)). “If the language of the

contract is unambiguous, the court construes and enforces the contract as written.”         Id.

(alterations omitted) (quoting Quality Prod. & Concepts Co. v. Nagel Precision, Inc.,

666 N.W.2d 251, 259 (Mich. 2003)).

       Plaintiffs allege that ARM breached the Line-7 Transportation Agreement and the

Amended Transportation Agreement when it failed to replace the lost elevator. They point to

three provisions to establish ARM’s contractual responsibility:

      Section 1.8 of the Line-7 Transportation Agreement: “[ARM] shall purchase
       insurance . . . for both land and sea transportation in order to insure against
       damages and losses of the equipment being shipped.”

      Section 3.1 of the Line-7 Transportation Agreement, entitled “Risk of Loss”: “risk
       of loss to goods during transit between the Port of Cleveland, Ohio and the
       Xingang Port in China shall be borne by [ARM] under a separately underwritten
       insurance policy.”

      Section 3(i) of the Amended Transportation Agreement: “the Parties agree to
       perform the following services and obligations: . . . ARM acknowledges that it
       has obtained approval from the insurance company to begin obtaining or
       constructing the Line 7 equipment, specifically the elevator, lost at sea January
       2012.”

       We agree that those provisions oblige ARM to replace the elevator. The plain and

unambiguous language of the Line-7 Transportation Agreement places the risk of loss for

damaged property upon ARM. Furthermore, ARM affirmed its obligation to make good on

replacing the elevator in the Amended Transportation Agreement.

       ARM attempts to contest this language by smuggling in arguments from its stricken

summary-judgment response.       Because the district court properly struck the response, we

disregard these arguments as forfeited. See E.M.A. Nationwide, 767 F.3d at 630 (“[T]he failure

to present an issue to the district court forfeits the right to have the argument addressed on

appeal.” (quoting Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006))).

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                ii. Breach of Contract

       Plaintiffs’ evidence supports their claim that ARM failed to perform under the Line-7

Transportation Agreement and the Amended Transportation Agreement. See 23 Williston on

Contracts § 63:1 (“[A] breach of contract is a failure, without legal excuse, to perform any

promise that forms the whole or part of a contract.”). Both parties agree that the elevator fell

overboard.     Moreover, Plaintiffs provided ARM’s insurance claim for the lost elevator,

documents stating that ARM won the bid to construct a new elevator, and a $975,000 insurance

payment to ARM in accordance with the bid. Plaintiffs’ witness also testified that ARM neither

built the elevator nor forwarded the insurance proceeds. . ARM has therefore breached the Line-

7 Agreements.

             B) Line-15 Equipment

       Although ARM requests review of the district court’s entire summary-judgment order, its

appellate brief supplies no analysis of the claims or counterclaims tied to the Line-15

Transportation Agreement. Accordingly, ARM waives these arguments. United States v. Layne,

192 F.3d 556, 566–67 (6th Cir. 1999) (“[I]ssues adverted to in a perfunctory manner . . . are

deemed waived.” (citation and internal quotation marks omitted)).

       In sum, the district court did not err in granting summary judgment for the Plaintiffs’ on

the Line-7 and Line-15 breach-of-contract claims.

       (3) Promissory-Estoppel Claim for the Millwright Work

       ARM asserts a promissory-estoppel claim, arguing that Plaintiffs agreed to pay ARM for

“additional millwright services.” To prove a promissory-estoppel claim, ARM must show

       (1) there was a promise, (2) the promisor reasonably should have expected the
       promise to cause the promisee to act in a definite and substantial manner, (3) the
       promisee did in fact rely on the promise by acting in accordance with its terms,
       and (4) and the promise must be enforced to avoid injustice.

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Crown Tech. Park v. D&N Bank, F.S.B., 619 N.W.2d 66, 71 (Mich. Ct. App. 2000) (citation

omitted). Because the district court struck ARM’s summary-judgment response, ARM lacks

sufficient evidence to prove promissory estoppel.

                   IV. Challenges to Excluding Damages-Limitation Evidence

        ARM contends that the district court erred when it excluded trial testimony on two

contract clauses that might have limited ARM’s liability—namely the force majeure clause and

the insurance clause (§ 1.8) of the Line-15 Transportation Agreement. Plaintiffs counter that,

because the clauses constituted affirmative defenses, ARM forfeited the ability to raise them at

trial when it omitted them from the final pretrial order. We agree with the Plaintiffs.

        “Because ‘district courts have broad discretion to modify or enforce pretrial orders, . . .

we review such rulings for an abuse of discretion.’” Jones v. Potter, 488 F.3d 397, 411 (6th Cir.

2007) (omission in original) (citation omitted). Under the Eastern District of Michigan Local

Rule 16.2, a joint final pretrial order “supersed[es] the pleadings and govern[s] the course of the

trial unless modified by further order.” Id. (emphasis added). Additionally, courts hold that

parties generally forfeit claims or defenses not raised in the final pretrial order. Cf. Gregory v.

Shelby Cty., Tenn., 220 F.3d 433, 442–43 (6th Cir. 2000) (“This Circuit has held that a party’s

failure to advance a theory of recovery in a pretrial statement constitutes waiver of that theory.”);

see also Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (“[C]laims, issues, defenses,

or theories of damages not included in the pretrial order are waived even if they appeared in the

complaint . . . .”).

        ARM omitted discussion of the insurance clause in its answer and in the final pretrial

order. And although ARM listed force majeure as an affirmative defense in its answer, it failed




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Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


to mention force majeure in the final pretrial order.          The district court therefore properly

excluded evidence of both during the trial.

        In a last ditch effort, ARM attempts to recast the issue as one of notice: Plaintiffs knew

the contents of the contract from the beginning of the litigation and therefore should not have

been surprised when ARM attempted to introduce the contract’s terms at trial. But ARM’s

argument fails because the contract, standing alone, gives no notice of what legal theories ARM

will pursue at trial, and neither party developed these defenses at any time.

                                   V. Challenges to the Verdict

        1. Sufficiency of the Evidence

        ARM challenges the sufficiency of the evidence, arguing that no “competent expert

witness’ testimony” supported the jury’s finding of $239,000 in damages. But because ARM did

not present the issue sufficiently in the district court, it forfeits its argument on appeal.

        In its motion for directed verdict below, ARM contended that “Plaintiffs . . . introduced

not one iota of evidence from any witness that Defendant breached . . . the Line 15 Rigging

Agreement,” but elaborated no further.         Only on appeal does ARM explain its objection:

Plaintiffs’ key expert witness opined on subjects for which he lacked a basis of knowledge, and

the district court therefore should have excluded the only testimony supporting the jury’s verdict.

Because ARM failed to describe its objection sufficiently in the lower court, it forfeits its

challenge on appeal. CFE Racing Prods., Inc. v. BMF Wheels, Inc., 793 F.3d 571, 583 (6th Cir.

2015) (“Even where a party has made some reference to an issue in a [motion for directed

verdict] . . . the issue is not preserved if it was not raised in a sufficiently substantial way . . . .”

(citing Libbey-Owens-Ford Co. v. Ins. Co. of N. Am., 9 F.3d 422, 425–27 (6th Cir. 1993))).




                                                 - 16 -
Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


       2. Inconsistent Jury Verdict

       ARM argues that the jury’s special verdict “must be set aside [as] inconsistent.”

Plaintiffs counter that ARM forfeited this objection by failing to raise it below. They also argue

that the court can read the verdict in a way that eliminates the inconsistency. Assuming without

deciding that ARM can raise this objection for the first time on appeal,3 we uphold the jury’s

verdict because we find no inconsistency under Michigan law.

       At trial, Plaintiffs requested $515,000 in damages for ARM’s breach of the Line-15

Transportation Agreement, and $239,000 for breach of two sections in the Line-15 Rigging

Agreement. The jury found ARM’s breaches of the Line-15 Transportation Agreement caused

damages, but awarded $239,000 instead of the requested $515,000. It also found no breach of

two sections of the Line-15 Rigging Agreement. ARM objects to the verdict, arguing that the

jury could not have found “no breach” of the Rigging Agreement while awarding an amount that

matches the damages request for breaching the Rigging Agreement.

       In a diversity case, “[state] law determines what constitutes an inconsistent verdict.”

Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500, 509 (6th Cir. 1998) (citing Tipton v.

Michelin Tire Co., 101 F.3d 1145, 1148 n.4 (6th Cir. 1996)). Under Michigan law, “[i]f there is

an interpretation of the evidence that provides a logical explanation for the findings of the jury,

the verdict is not inconsistent.” Granger v. Fruehauf Corp., 412 N.W.2d 199, 202 (Mich. 1987).




       3
          The circuits are split on whether a party that fails to challenge a special verdict in the
district court can raise the issue on appeal. See Bonin v. Tour West, Inc., 896 F.2d 1260, 1262
(10th Cir. 1990) (listing Third, Fourth, Fifth, and Ninth Circuit precedent that distinguish
between objections made for special and general verdicts); Mason v. Ford Motor Co., Inc.,
307 F.3d 1271, 1273–74 n.4 (11th Cir. 2002) (noting the conflicting case law within the Eleventh
Circuit). The Sixth Circuit has not addressed this question.
                                               - 17 -
Case No. 15-2564, Ordos City Hawtai Autobody, et al. v. Dimond Rigging Co.


       Plaintiffs offer a logically coherent explanation: the jury found that ARM’s breach of the

Line-15 Transportation Agreement caused damages, but then determined that the damages were

not as high as Plaintiffs claimed.

       ARM argues that inconsistency between the jury’s answers to the special questions most

reasonably explains the verdict. But Michigan’s standard hinges on demonstrating a logical

explanation, not the most plausible one. Id. at 203 (“[E]very attempt must be made to harmonize

a jury’s verdicts. Only where verdicts are so logically and legally inconsistent that they cannot

be reconciled will they be set aside.” (citations omitted)). Plaintiffs’ explanation suffices to meet

this standard.

                                         VI. Conclusion

       For these reasons, we AFFIRM.




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