Koursa, Inc. v. Manroland, Inc. (971 F. Supp. 2d 765, 2013)

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, Chief Judge

This action arises from a contract between Koursa, Inc. (“Koursa”) and manro-land, Inc. (“manroland”) for the purchase and sale of a certain printing press system (the “Printing Press”) manufactured by manroland AG. (R. 1, Compl. ¶¶ 5-6-; R. 25, manroland’s Answer ¶¶ 5-6.) Koursa brings this action against manroland for anticipatory breach of contract and repudiation of contract, (R. 1, Compl.1ffl 29-49), and manroland brings a counterclaim against Koursa for breach of contract and anticipatory repudiation, (R. 25, manro-land’s Countercl. ¶¶ 24-38). Presently before the court are the parties’ cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. (R. 37, manroland’s Mot. Summ. J.; R. 44, Koursa’s Mot. Summ. J.) For the reasons discussed below, both parties’ motions are denied.

Relevant Facts

I. Local Rules

Before summarizing the material facts that give rise to this action, the Court briefly discusses Local Rule 56.1 of the Northern District of Illinois, which imposes “certain requirements for supporting and opposing motions for summary judgment.” Bordelon v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir.2000). Local Rule 56.1 assists the Court “by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence.” Bordelon, 233 F.3d at 527 (quoting Markham v. White, 172 F.3d 486, 490 (7th Cir.1999) (internal quotation marks omitted)). The Seventh Circuit has emphasized that Local Rule 56.1 is “not a mere formality.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir.2011) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924 (7th Cir.1994)). It “is designed, in part, to aid the district court, ‘which does not have the advantage of the parties’ familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information,’ in determining whether a trial is necessary.” Id. (quoting Waldridge, 24 F.3d at 923-24).

Local Rule 56.1 requires a party moving for summary judgment to submit, among other things, a statement of undisputed material facts consisting of “short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.” L.R. 56.1(a)(3). The opposing party must then submit, among other things, a concise response to the movant’s statement of facts containing “a response to each numbered paragraph in the moving party’s statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” L.R. 56.1(b)(3)(B). “Unless controverted in this manner, “all material facts set forth in movant’s statement are deemed admitted.” Bordelon, 233 F.3d at 527 (discussing Local Rule 12(N), the precursor to Local Rule 56.1). “Thus, a general denial is insufficient to rebut a movant’s factual allegations; the nonmovant must cite specific evidentiary materials justifying the denial.” Malec v. Sanford, 191 F.R.D. 581, 584 (N.D.Ill.2000). Further, a Rule 56.1(b)(3) response “is not the place for purely argumentative denials,” Malec, 191 F.R.D. at 584, nor is it the place for additional facts, Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, (7th Cir.2008) (A district court “does not abuse its discretion when it opts to disregard facts presented in a manner that does follow the Rule’s instructions.”) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir.1995)); Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004) (concluding that district court did not abuse its discretion when it disregarded additional facts that the opposing party presented in its Local Rule 56.1(b)(3) response).

Instead, the non-moving party must submit a separate “statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.” L.R. 56.1(b)(3)(C). “If additional material facts are submitted by the opposing party ... the moving party may submit a concise reply” that satisfies the same requirements as the opposing party’s response. L.R. 56.1(a); Malec, 191 F.R.D. at 584. A party’s failure to reply to an opposing party’s statement of additional facts is the admission of the opposing party’s factual contentions. L.R. 56.1(a) (final unnumbered paragraph); Malec, 191 F.R.D. at 584; Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003.) Furthermore, the Seventh Circuit has consistently and repeatedly upheld a district court’s discretion to require strict compliance with Local Rule 56.1. Bordelon, 233 F.3d at 527 (citing Midwest Imports, Ltd., 71 F.3d at 1316; Waldridge, 24 F.3d at 922); see also Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 n. 2 (7th Cir.2008). With these tenets in mind, the Court turns to the relevant facts.

II. Facts

Koursa is a Pennsylvania corporation with its principal place of business in Fort Washington, Pennsylvania. (R. 48, Kour-sa’s Rule 56.1 Resp. ¶ 1; R. 50, manro-land’s Rule 56.1 Resp. ¶ 1.) Koursa is in the business of leasing printing equipment to third parties, such as Kappa Graphics, LP (“Kappa”), a sister company. (R. 50, manroland’s Rule 56.1 Resp. ¶ 1.) Manro-land is a Delaware corporation with its principal place of business in Westmont, Illinois. (R. 48, Koursa’s Rule 56.1 Resp. ¶ 1; R. 50, manroland’s Rule 56.1 Resp. ¶ 2.) Manroland acts as the United States’ sales representative for manroland AG, which manufactures printing presses. (R. 50, manroland’s Rule 56.1 Resp. ¶ 13.) Manroland AG, a German company, is manroland’s parent. (R. 50, manroland’s Rule 56.1 Resp. ¶ 13.) The Printing Press at issue was manufactured in Germany by manroland AG. (R. 50, manroland’s Rule 56.1Resp. ¶ 13.) On October 6, 2011, Chris Howes (“Howes”), a manroland employee, (see R. 48, Koursa’s Rule 56.1 Resp. ¶ 16), informed Nils Kaben, a man-roland AG employee, (see R. 50, manro-land’s Rule 56.1 Resp. ¶ 66), “Kappa has told us that if we cannot have the [Printing] Press on their floor by the end of December 2011 we will not get the deal,” (R. 46, Koursa’s Facts, Ex. 6, MANR000342).

A. The terms of the Machinery Contract

On October 20, 2011, Koursa and manro-land executed a “Machinery Contract” in which manroland agreed to sell to Koursa a Printing Press. (R. 48, Koursa’s Rule 56.1Resp. ¶3; R. 50, manroland’s Rule 56.1Resp. ¶ 5.) Manroland AG was not a party to the Machinery Contract. (R. 48, Koursa’s Rule 56.1 Resp. ¶ 4.) William J. Bonner, Jr., Esq., Vice President of Kour-sa, negotiated the terms of the Machinery Contract on behalf of Koursa, and Michael Mugavero negotiated the Machinery Contract on behalf of manroland. (R. 50, manroland’s Rule 56.1 Resp. ¶6; R. 48, Koursa’s Rule 56.1 Resp. ¶ 15.) The total purchase price for the Printing Press was $3,205,400.00, payable to manroland in installments. (R. 48, Koursa’s Rule 56.1 Resp. ¶ 5.) The Machinery Contract specifies the following payment schedule:

Purchase Price USDS 3,205,400.00

Tax-Exempt: Certificate number TBP

10% - Down payment with contract USDS 317,500.00

35% - Prior to shipment ex works USDS 1,124,930.00

25% - Upon delivery to the purchasers [sic] premises USD$ 801,350.00

15% - Upon completion of installation USDS 480,810.00

15% - 30 days after start of commercial operation USDS 480,810.00

(R. 1-1, Machinery Contract, Addendum A; R. 48, Koursa’s Rule 56.1 Resp. ¶ 5.) Koursa paid manroland $317,500.00 at the time it executed the Machinery Contract. (R. 50, manroland’s Rule 56.1 Resp. ¶ 7.)

Under the “General Terms and Conditions” heading and the “Delivery” subheading therein, the Machinery Contract specifies:

FOB Customer

The Equipment shall be delivered to the Kappa Graphics, LP’s loading dock at its Premises after completion of the preparation of the Premises.

Kappa Graphics, LP’s facility shall be ready to accept delivery including having a suitable foundation completed as well as available and suitable electrical power, compressed air, water and gas no later than 30 days prior to installation. The unloading of the Equipment, and rigging to the final site, is included in the Net Investment.

(R. 1-1, Machinery Contract at 7; R. 50, manroland’s Rule 56.1 Resp. ¶ 10.) Under the subheading “Delivery date,” the Machinery Contract states: “Delivery to Kappa Graphics, LP’s facility on or before December 31, 2011. Manroland reserves the right to delay, without penalty, in the case that payments are not settled by the Purchaser when due.” (R. 1-1, Machinery Contract at 7.) Section 7.16 of the Machinery Contract also provides that “[i]f delivery of the [Printing Press], excluding the RS 105 Inline Sheeter, is later than the Delivery Date of 12/31/11 due to [manro-land] (other than one of the causes provided in 7.15) then [Koursa] shall have the right to terminate this Agreement and [manroland] shall thereupon return all of [Koursa’s] payments with interest.” (R. 1-1, Machinery Contract at 22; R. 50, manroland’s Rule 56.1 Resp. ¶ 11.) Section 7.15 governs delay or nonperformance under the Machinery Contract and excuses both Koursa and manroland from liability for any delay or failure to perform “due to acts of God, work stoppages or slowdowns by its employees or agents, fires or governmental intervention.” (R. 1-1, Machinery Contract at 22; R. 52, Koursa’s Add’l Facts ¶ 5.) The parties negotiated Section 7.15, and prior to signing the Machinery Contract, they removed language from an earlier draft that exempted manroland from liability due to “shortages of labor or materials.” (R. 52, Koursa’s Add’l Facts ¶ 6; R. 52, Koursa’s Add’l Facts, Ex. 8, KOURSA000650.)

Notably, Section 7.5 of the Machinery Contract provides that “[t]itle to and risk of loss' of the Equipment shall pass from Seller to Purchaser when the Equipment is delivered to Purchaser’s receiving dock.” (R. 1-1, Machinery Contract at 19; R. 50, manroland’s Rule 56.1 Resp. ¶ 8.) The Machinery Contract also provides that manroland agreed to provide 300 hours of training and limited warranty support for an additional year. (R. 50, manroland’s Rule 56.1 Resp. ¶ 12; R. 1-1, Machinery Contract at 7.) In addition, manroland was to provide Koursa with certain price concessions for parts for a 24-month period. (R. 50, manroland’s Rule 56.1 Resp. ¶ 12; R. 1-1, Machinery Contract at 7.)

Section 7.1 provides that in the event any payment thereunder due from Koursa to manroland is received by manroland more than ten days after Koursa’s receipt of written notice of non-payment from manroland (a “Delinquent Payment”), Koursa shall pay a late charge equal to five percent (5%) of the Delinquent Payment for each month (or partial month) the Delinquent Payment is not received by manroland. (R. 48, Koursa’s Rule 56.1 Resp. ¶ 9; R. 1-1, Machinery Contract at 18.) Section 7.4 of the Machinery Contract provides that Koursa shall accept delivery of the Printing Press on or before December 31, 2011. (R. 48, Koursa’s Rule 56.1 Resp. ¶ 10; R. 1-1, Machinery Contract at 19.) If Koursa does not so accept delivery for a cause other than one of the causes provided in Section 7.15, then man-roland may, among other things, declare the full unpaid balance of the Purchase Price immediately due and payable, (R. 48, Koursa’s Rule 56.1 Resp. ¶ 10; R. 1-1, Machinery Contract at 19), and “shall be entitled to immediate payment of 15% of the Purchase Price as liquidated damages,” (R. 1-1, Machinery Contract at 23). The parties further agreed in Section 7.17(a) that if Koursa cancelled the Machinery Contract, it would pay manroland “any additional amounts necessary to bring the aggregate amount[ ] received by [manroland] from [Koursa] under this [Machinery] Contract to forty-five percent (45%) of the Purchase Price.” (R. 48, Koursa’s Rule 56.1 Resp. ¶ 8; R. 1-1, Machinery Contract at 23.)

The Machinery Contract includes an indemnification clause whereby both Koursa and manroland agreed to indemnify each other against, among other things, damages arising out of or relating to the Printing Press and its sale that are due to a breach of a duty or other contractual obligation. (R. 1-1, Machinery Contract at 19; R. 48, Koursa’s Rule 56.1 Resp. ¶ 11.) The Machinery Contract also contains a choice of law and venue provision providing that it “shall be governed by and construed in accordance with the laws of the State of Illinois.... Except as to actions by [man-roland] against [Koursa], ... [manroland and Koursa] hereby consent and agree to the exclusive jurisdiction of ... the federal court in the Northern District of Illinois.” (R. 1-1, Machinery Contract at 25.)

B. Time for delivery and unloading

Again, Mugavero and Bonner both negotiated the terms of the Machinery Contract on behalf of manroland and Koursa, respectively. (R. 50, manroland’s Rule 56.1 Resp. ¶ 6.) Mugavero testified that a condition of the contract, as he remembered, was that the Printing Press would be delivered, taken out of the container, and placed on Kappa’s floor on or before December 31, 2011. (R. 46, Koursa’s Facts, Ex. 5, Aug. 21, 2012 Michael Mu-gavero Dep. at 54:7-10.) Bonner testified that it was understood that delivery included the delivery, the unloading and the setup of the Printing Press on the floor. (R. 46, Koursa’s Facts, Ex. 3, Sept. 25, 2012 William Bonner Dep. at 49:3-19, 50:22-51:11.)

After Koursa and manroland executed the Machinery Contract, manroland assigned Richard Brown as the senior project manager to facilitate delivery and installation of the Printing Press. (R. 50, manroland’s Rule 56.1 Resp. ¶ 15.) After holding project kick-off meeting on November 8, 2011, Brown wrote to Kaben and said that Kappa “wants and expects per the [Machinery] Contract to get all of the [Printing P]ress parts delivered to his plant by 12/31/2011.” (R. 46, Koursa’s Facts, Ex. 7, MANR002010.) Brown also wrote, “We need to have all of the major equipment in the plant by by 12/31/2011.” (Id.)

Between November 1 and 3, manroland employees had internally discussed a possible schedule for production and shipping. (R. 46, Koursa’s Facts, Ex. 39, MANR001918-19.) After the Printing Press was fabricated, it was to be packed into approximately eight cargo containers and transported from manroland AG’s factory in Offenbach, Germany, to a port in Antwerp, Belgium. (R. 50, manroland’s Rule 56.1 Resp. ¶ 14.) Under the internal manroland schedule, the Printing Press was expected to leave the factory on December 7, 2011, and it would need to arrive at the port in Antwerp, Belgium by December 9, 2011, so that it could leave the port on a vessel named the Santa Bettina on December 14, 2011. (R. 46, Koursa’s Facts, Ex. 39, MANR001918-19.) From there, the cargo containers were to be loaded onto a cargo vessel that would arrive at one of the ports near New York City on December 22, 2011. (R. 50, man-roland’s Rule 56.1 Resp. ¶ 14; R. 46, Kour-sa’s Facts, Ex. 5, Mugavero Dep. at 77:7-12; R. 46, Koursa’s Facts, Ex. 39, MANR001918-19.) The cargo containers would then be offloaded, and after clearing customs, each of the cargo containers were to be driven to Kappa’s facility in Pittston, Pennsylvania. (R. 50, manroland’s Rule 56.1Resp. ¶ 14.)

Brown told Nick Smith, the general manager of Kappa, that the unloading of the Printing Press would take three or four days because, among other things, space limitations dictated that only one truck could be unloaded at a time at Kappa’s unloading area. (R. 50, manroland’s Rule 56.1 Resp. ¶ 16.) Brown created a scheduling “Gantt” chart that provided four days — from December 27 to December 30, 2011 — to unload and stage the “Manroland Equip.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 17; R. 46, Koursa’s Facts, Ex. 11, KOURSA000337.) Brown also received a proposal from a rigging company which provided four days to: “1. Unload component crates and skids from the carrier’s flatbed trucks and move/rig into the building via the existing ground level door access. 2. Begin uncrating and staging components as time allows. 3. Consolidate crating debris for disposal by others.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 17; R. 46, Koursa’s Facts, Ex. 12, MANR000240.) Indeed, on January 5, 2012, manroland created another Gantt schedule indicating that it would take four days to off load the Printing Press at Kappa’s facilities. (R. 46, Koursa’s Facts, Ex. 13, MANR006566.)

If necessary, manroland could have arranged to have the Printing Press shipped to Kappa’s facility via air-freight. (R. 51, manroland’s Add’l Facts ¶ 1.) Because the Printing Press never shipped, there are no documents or charts indicating that the unloading could be accomplished in less than four days. (R. 50, manroland’s Rule 56.1Resp. ¶ 18.)

C. manroland AG’s bankruptcy

On November 25, 2011, manroland AG filed for bankruptcy. (R. 50, manroland’s Rule 56.1 Resp. ¶ 19; R. 48, Koursa’s Rule 56.1Resp. ¶ 14.) That same day, a representative for a competitor of manroland notified Smith about manroland AG’s bankruptcy. (R. 50, manroland’s Rule 56.1 Resp. ¶ 19, MANR002424-26; R. 46, Kour-sa’s Facts, Ex. 9, Aug. 21, 2012 Nicholas Smith Dep. 23:19-23.) That evening, Smith e-mailed Nick Karabots a press release about manroland AG’s insolvency and stated, “Not sure what this means to us and have not been able to get a hold of Mike Mugavero.” (R. 46, Koursa’s Facts, Ex. 14, KOURSA000733.) That same evening, Smith forwarded to Mugavero an email containing a link to an article about manroland AG’s bankruptcy and asked, “What’s with this?” (R. 46, Koursa’s Facts, Ex. 17, MANR002424-26.) Smith also e-mailed a separate manroland employee, A1 Muccari, the following: “Heard that MAN Roland filed for bankruptcy today ... what does this mean for us?” (R. 50, manroland’s Rule 56.1 Resp. ¶ 23; R. 46, Koursa’s Facts, Ex. 16, KOUR-SA000103.) Smith testified that prior to sending e-mails to Mugavero and Muccari, he first called them, but when he did not get a call back he e-mailed them. (R. 50, manroland’s Rule 56.1 Resp. ¶ 23; R. 46, Koursa’s Facts, Ex. 9, Smith Dep. 22:10-23:1.)

Smith, who had been communicating with manroland on behalf of Koursa, had previously sought to purchase equipment from a German bankruptcy estate, but subsequently abandoned his efforts when it took months to get any information from the bankruptcy administrator. (R. 50, manroland’s Rule 56.1 Resp. ¶ 20.) Smith testified that from the moment of manro-land AG’s insolvency, Koursa had a growing concern about manroland’s ability to deliver the Printing Press to Kappa by December 31, 2011. (R. 50, manroland’s Rule 56.1 Resp. ¶ 20; R. 46, Koursa’s Facts, Ex. 9, Smith Dep. at 29:2-15.) Bonner testified that because manroland AG manufactured the Printing Press, he believed that Koursa “had a problem” when he learned of manroland AG’s bankruptcy. (R. 50, manroland’s Rule 56.1 Resp. ¶ 21; R. 46, Koursa’s Facts, Ex. 3, Bonner Dep. at 39:22-39:3.) Bonner further testified that he was “very concerned” about man-roland’s ability to fulfill the Machinery Contract because of the fact that manro-land AG was in bankruptcy. (R. manro-land’s Rule 56.1 Resp. ¶ 22; R. 46, Kour-sa’s Facts, Ex. 3, Bonner Dep. at 41:10-14.)

Smith also testified that he became concerned about manroland’s ability to perform under the Machinery Contract on November 25, 2011 — the date insolvency was announced — and that his concern was not alleviated after Muccari replied to his e-mail and told him he was trying to find out what was going on. (R. 46, Koursa’s Facts, Ex. 9, Smith Dep. at 21:20-25:5, 23:2-7.) Smith testified that Koursa was concerned about manroland’s ability to deliver and unload the Printing Press by December 31, 2011. (R. 46, Koursa’s Facts, Ex. 9, Smith Dep. at 20:21-8.) Smith further testified that Koursa was concerned about how manroland AG’s insolvency might impact the installation of the Printing Press and manroland’s ability to provide training and warranty support for the Printing Press. (Id.) Karabots testified that he was concerned about the timely shipment of the Printing Press and that creditors of manroland AG might assert claims against the Printing Press. (R. 46, Koursa’s Facts, Ex. 1, Sept. 25, 2012 Nicholas Karabots Dep. at 56:13-57-7.) Karabots also testified that manroland AG’s bankruptcy made Koursa very uneasy about manroland’s ability to perform, and that the delivery time delays that were subsequently submitted caused Koursa further concern. (Id. at 168:3:11.)

The following day, Saturday, November 26, 2011, in response to Smith’s inquiry, Mugavero advised Smith that “the company [was] re-organizing” and that information would be available early the following week. (R. 50, manroland’s Rule 56.1 Resp. ¶ 24; R. 46, Koursa’s Facts, Ex. 17.) During this weekend, Koursa made verbal inquiries to manroland seeking information as to how the manroland AG bankruptcy would impact manroland’s ability to perform its obligations under the Machinery Contract and the delivery of the Printing Press. (R. 50, manroland’s Rule 56.1 Resp. ¶ 25; R. 46, Koursa’s Facts, Ex. 3, Bonner Dep. at 76:14-77:22; R. 46, Kour-sa’s Facts, Ex. 1, Karabots Dep. at 158:12-19; R. 46, Koursa’s Facts, Ex. 9, Smith Dep. at 34:19-35:4.)

That same day, Thomas Hawrysz, the Chief Financial Officer of manroland, (see R. 48, Koursa’s Rule 56.1 Resp. ¶ 18), sent an e-mail to manroland AG’s CFO and its attorney to ask how customer deposits would be treated in light of manroland AG’s insolvency and whether there was a possibility of returning those deposits back to the customer in the event the customers demanded the return of funds. (R. 46, Koursa’s Facts, Ex. 42, MANR008036-37; R. 46, Koursa’s Facts, Ex. 4, Aug. 29, 2012 Tom Hawrysz Dep. at 173:12-18, 174:9-10.)

On Monday, November 28, Smith emailed Mugavero and inquired: “What’s going on with this ... I expected to hear from you this morning.” (R. 50, manro-land’s Rule 56.1 Resp. ¶ 24; R. 46, Kour-sa’s Facts, Ex. 17, MANR002424.) Later that morning, Smith e-mailed Karabots and wrote: “Mike Mugavero is telling me that our [Printing P]ress is still on schedule to ship on time and that the factory is continuing with production through this financial reorganization. I have asked and he has requested confirmation in writing from the factory and expects something from them in the next day or so.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 25; R. 46, Koursa’s Facts, Ex. 18, KOURSA000520.)

On November 29, 2011, Brown advised Smith that the Printing Press was booked to be transported on the Santa Bettina — a cargo ship estimated to depart Antwerp, Belgium on December 14, 2011, and estimated to arrive in New York on December 22, 2011. (R. 50, manroland’s Rule 56.1 Resp. ¶26.) Manroland further advised that the Printing Press would be trucked to Kappa’s facility in Pittston, PA and unloading would begin on December 27, 2011. (R. 50, manroland’s Rule 56.1 Resp. ¶ 26.) The dates in this proposed schedule (“November 29 Schedule”) were consistent with the internal manroland schedule Brown had developed between November 1 and 3 and with the scheduling Gantt and rigger estimate Brown had created.

On November 30, 2011, Mugavero emailed Kaben that Koursa and Kappa “would like written conformation [sic] that manroland will in fact ship the [Printing Press] and deliver prior to the end of this calendar year:” (R. 46, Koursa’s Facts, Ex. 19, MANR002053.) Kaben responded to Mugavero that day and wrote that to his knowledge, manroland was “not allowed any more to issue any binding conformations [sic]/ agreements without the verification of the insolvency trustee.” (Id.) Kaben further wrote: “The delivery date for Kappa seems very doubtful because several suppliers of parts will not deliver which means regular completion of the machine is currently not possible.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 63; R. 46, Koursa’s Facts, Ex. 43, MANR002053.) Kaben also advised that due to its bankruptcy, “[n]o units are being shipped and logistic services are not available to us.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 63; R. 46, Koursa’s Facts, Ex. 43, MANR002053.)

On or around December 1, 2011, manro-land instituted a reduction in force, during which Brown, the senior project manager for the Printing Press, was laid off. (R. 50, manroland’s Rule 56.1 Resp. ¶ 64.) That same day, manroland AG advised manroland that manroland AG could not provide any binding confirmations with respect to the shipment date of the Printing Press without the verification of the insolvency trustee. (R. 50, manroland’s Rule 56.1 Resp. ¶ 65; R. 46, Koursa’s Facts, Ex. 45, MANR002061.)

On December 2, 2011, Howes advised Kaben, Vince Lapinski and Hawrysz, with respect to the Printing Press:

If we are not able to delivery [sic] by [December Bl, 2011,] the customer has the option to cancel. If they cancel, we are required to return his money with interest. As you know the 10% down payment ($317,500), we received, was sent to [manroland AG]. Based on this, we would have no cash to return to them. They would in all likelihood sue [manroland.] This action would most likely then cause [manroland] to file for bankruptcy protection.

We have been given dates of the [Printing P]ress on an ocean vessel sailing on December 14th out of Antwerp which would arrive in the states on December 22nd. The plan was to start to deliver to the customer starting on December 27th. Based on this schedule we have no room for delay — we must meet the vessel sailing date of December 14th.

(R. 50, manroland’s Rule 56.1 Resp. ¶ 66; R. 46, Koursa’s Facts, Ex. 46, MANR000244.) Howes also acknowledged that had manroland not guaranteed the December 31, 2011, delivery date, Koursa would not have purchased the Printing Press from it. (R. 50, manroland’s Rule 56.1 Resp. ¶ 67.) None of the e-mail recipients advised Howes that his statements were unfounded or erroneous. (Id.)

On December 2, 2011, at 7:06 a.m., Mu-gavero wrote to Smith to advise him that he had prepared a •written response to Smith’s previous inquiries, but that he was “still waiting for legal to approve.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 27.) Smith recalled that this “set[ ] off alarm bells left and right” because “if legal has to approve his answer to me, that’s a problem.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 27.)

On December 2, 2011, at 8:01 a.m., Gina Gigliozzi, a Manager of Sales and Service Support for manroland e-mailed Smith a press release (“Press Release”) regarding manroland AG’s bankruptcy. (R. 50, man-roland’s Rule 56.1 Resp. ¶ 28, KOUR-SA001082-83.) The Press Release, under the heading “Mass credit approved for manroland — Continuation of business operations secured” stated that manroland AG had secured a source of financing and would therefore be able to continue production and business operations. (Id.) The Press Release further stated: “[t]he financing secures fulfillment of liabilities with customers and suppliers that have placed or received orders with manroland after the company has filed for insolvency. Liabilities originated before the filing will be dealt with as part of the insolvency proceedings later in the process.” (Id.)

Bonner testified that the Press Release left him “more uncomfortable” because the Machinery Contract was executed before manroland AG filed for bankruptcy. (R. 46, Koursa’s Facts, Ex. 3, Bonner Dep. at 98:7-99:2; R. 50, manroland’s Rule 56.1 Resp. ¶ 30.) Smith testified that the Press Release “just deepened” his concerns because the parties had entered into the Machinery Contract before the insolvency. (R. 46, Koursa’s Facts, Ex. 9, Smith Dep. at 39:6-23.)

After receiving the Press Release, Smith sent two e-mails, one on Friday, December 2 (“Smith’s December 2 E-mail”), and one on Monday, December 5 (“Smith’s December 5 E-mail”), to manroland employees. Smith’s December 2 E-mail was sent to Gigliozzi, Mugavero, Muccaris, and Bonner, and stated, in relevant part:

[The Press Release] is somewhat helpful but leaves open the question of how our order will be treated as it was placed before the filing and as noted below “will be dealt with as part of the insolvency proceedings later in the process.” I had previously requested information of when and where our press was to be loaded into containers and released to the shipper. We may want to have a person on site for that to satisfy the Owner’s concern regarding the release of the next payment.

I would like clarification of our questions this morning, please.

(R. 46, Koursa’s Facts, Ex. 28, MANR001229.) On Monday, December 5, Smith again e-mailed Mugavero and inquired about the timing for delivery of the Printing Press. (R. 50, manroland’s Rule 56.1 Resp. ¶ 31.) Specifically, Smith wrote:

It is imperative that we hear from MAN Roland today on the circumstances surrounding our shipment and the next payment due.

(R. 46, Koursa’s Facts, Ex. 24, KOUR-SA000106.)

Later that same day, Bonner, on behalf of Koursa, wrote a letter to manroland (“Bonner’s Proposal”) in which he stated that “[a]s the [Machinery] Contract was executed by the parties and originated before the bankruptcy filing of manroland AG, this is to notice you in writing that Koursa is unwilling to be a party to man-roland AG’s insolvency proceedings; yet looks to conclude the agreed upon transaction in a proper manner.” (R. 50, manro-land’s Rule 56.1 Resp. ¶ 32; R. 48, Kour-sa’s Rule 56.1 Resp. ¶ 15; R. 46, Koursa’s Facts, Ex. 25, MANR000947.) Bonner proposed a modification to the Machinery Contract:

We therefore propose a modification to the [Machinery] Contract such that upon receipt of written notice from you that the [Printing Press] is being shipped to Kappa Graphics, LP’s plant, Koursa will post a Documentary Letter of Credit in the amount of the Second Payment for the benefit of manroland (the “Letter of Credit”). With such Letter of Credit providing for payment of the Second Payment upon delivery of the [Printing Press] to Kappa Graphics, LP [sic] plant at 50 Rock Street, Pittston, PA, USA.

(R. 46, Koursa’s Facts, Ex. 25, MANR000947.)

On December 6, 2011, Howes again emailed Kaben asking for an answer to his December 2 E-mail. (R. 46, Koursa’s Facts, Ex. 48, MANR002091.) Howes acknowledged that manroland was “past due in getting an answer to [Koursa] on when he will get his [Printing P]ress (we told him that we would have an answer yesterday based on the information that we received from [manroalnd AG].” (Id.) Howes also acknowledged that manroland was receiving “heavy pressure” from Koursa. (Id.)

Also on December 6, 2011, manroland AG again advised manroland that all deliveries of machines manufactured by manro-land AG had stopped. (R. 50, manroland’s Rule 56.1 Resp. ¶ 68; R. 46, Koursa’s Facts, Ex. 47, MANR002089.) That same day, Lapinski, then-chief executive officer of manroland, advised manroland AG that “[t]o meet the December 31, 2011, delivery date the [Printing P]ress needed to be on an Ocean Vessel by December 14th (sailing out of Antwerp). The vessel would arrive on December 22nd and [be] trucked to the customer starting the 27th of December.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 69; R. 46, Koursa’s Facts, Ex. 49, MANR002943.) In that same e-mail, La-pinski noted that as of that morning, “the [Printing Press] mechanically ha[d] been completed, some of the missing components are the Eltosch IR/UV Dryer, Tech-notrans beta.C and some electrical parts.” (R. 46, Koursa’s Facts, Ex. 49, MANR002943.)

Lapinski testified that it took two hours to drive from Newark to Kappa, and man-roland estimated that if the Printing Press came in on a certain day, they would have it on a truck the same day and “could even [have] had it [at Kappa] that day or the next day, early in the morning.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 69, Lapinski Dep. at 135:1-6.)

On December 7, 2011, manroland AG advised manroland that it “could confirm that the Kappa [Printing P]ress is now being packed for shipment in Offenbach and can leave Germany early next week if all goes [according] to plan.” (R. 50, man-roland’s Rule 56.1 Resp. ¶ 70; R. 46; R. 46, Koursa’s Facts, Ex. 50, MANR002638.) On December 8, 2011, Jon Surch, who oversaw manroland’s project management team, advised manroland’s executives, that “[a]t this time I see no chance to make 31st onsite.” (R. 46, Koursa’s Facts, Ex. 52, MANR002850; R. 46, Koursa’s Facts, Sept. 14, 2012 Dep. Jon Surch at 11:19-12:5.) That same day, however, Surch testified that he developed additional information in the form of a commitment from a rigging company that allowed him to believe that manroland could make the December 31, 2011 delivery date. (R. 50, manroland’s Rule 56.1 Resp. ¶ 72, Surch Dep. at 98:10-99:14.)

On December 8, 2011, Howes advised Bonner and Smith via an e-mail (“December 8 Email”) that the Printing Press would ship one week later than it had previously advised. (R. 50, manroland’s Rule 56.1 Resp. ¶ 33; R. 46, Koursa’s Facts, Ex. 26, MANR006391.) Specifically, the Printing Press was to be booked aboard a vessel named the “Porto,” which was estimated to depart Antwerp on December 21, 2011, and estimated to arrive in New York on December 29, 2011. (R. 50, manroland’s Rule 56.1 Resp. ¶ 33; R. 48, Koursa’s Rule 56.1 Resp. ¶¶ 16, 27.) Contemporaneously, manroland sent Koursa an invoice for the second installment payment of $1,124,930.00. (R. 50, manroland’s Rule 56.1 Resp. ¶ 33; R. 48, Koursa’s Rule 56.1 Resp. ¶ 16.)

Bonner testified that the December 8 Email did not give him any comfort, particularly because the estimated arrival date in New York was December 29, 2011; “it just added to [his] insecurity about [manro-land’s] ability to perform.” (R. 46, Kour-sa’s Facts, Ex. 3, Bonner Dep. at 62:9-15.) According to Bonner, this “would not allow enough time” for the Printing Press to be delivered and unloaded by December 31, 2011. (Id. at 62:16-63:4.) Similarly, Smith testified that he interpreted the email to mean that “there was no way that the [Printing P]ress was going to be on our floor by the 31st,” in part because of Brown’s statement that it would take three to four days to unload the containers. (R. 46, Koursa’s Facts, Ex. 9, Smith Dep. at 56:3-17.) Smith further testified that in Koursa’s experience, it was not unusual for vessels frequently to arrive later than their estimated shipping date. (R. 50, manro-land’s Rule 56.1 Resp. ¶ 35; R. 46, Kour-sa’s Facts, Ex. 9, Smith Dep. at 29:21-31:2.) Notably, the Porto, the vessel on which the Printing Press was to be shipped, actually arrived on December 30, 2011. (R. 50, manroland’s Rule 56.1 Resp. ¶ 35.) Similarly, the Santa Bettina, on which the Printing Press was originally scheduled to ship also arrived a day later than it was scheduled to arrive. (Id.) Kar-abots testified that the December 8 E-mail “absolutely provided [him] with less comfort and absolute assurance [manroland] could [not] perform under the [Machinery] Contract.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 36; R. 46, Koursa’s Facts, Ex. 1, Karabots Dep. at 126:9-16.)

The following day, December 9, 2011, Howes e-mailed Bonner and Smith and provided them with a letter signed by the Chairman of the Executive Board of man-roland AG and the Provisional Insolvency Administrator for manroland AG confirming that the Printing Press was booked on the Porto and estimated to arrive in New York on December 29, 2011. (R. 48, Kour-sa’s Rule 56.1 Resp. ¶ 17; R. 50, manro-land’s Rule 56.1 Resp. ¶37; R. 46, Kour-sa’s Facts, Ex. 28, KOURSA000480-81.) In that e-mail, Howes wrote, “I trust that this is sufficient documentation to process the progress payment of $1,124,930 due Prior to shipment ex works.” (R. 48, Koursa’s Rule 56.1 Resp. ¶ 17; R. 46, Koursa’s Facts, Ex. 28, KOURSA000480-81.)

The same day, Lapinski and Hawrysz sent a letter (“manroland’s December 9 Letter”) responding to Bonner’s Proposal and rejecting the proposed modification of the Machinery Contract. (R. 50, manro-land’s Rule 56.1 Resp. ¶ 38; R. 48, Kour-sa’s Rule 56.1 Resp. ¶ 18; R. 46, Koursa’s Facts, Ex. 29, KOURSA000471.) In man-roland’s December 9 Letter, Lapinski and Hawrysz stated that manroland had provided Koursa with written confirmation from manroland AG that the Printing Press was available to ship and demanded the second payment. (R. 50, manroland’s Rule 56.1 Resp. ¶ 38; R. 48, Koursa’s Rule 56.1 Resp. ¶ 18; R. 46, Koursa’s Facts, Ex. 29, KOURSA000471.) Karabots testified that manroland’s December 9 Letter did not provide him with any assurance that manroland would perform under the terms of the Machinery Contract. (R. 46, Kour-sa’s Facts, Ex. 1, Karabots Dep. at 135:9— 12.)

Later that same day, Bonner responded to manroland’s December 9 Letter (“Bonner’s December 9 Letter”) and wrote: “The estimated shipping date of December 21, 2011 and the estimated arrival date in the U.S. of December 29, 2011 (the Friday of the New Years holiday weekend on 12/30 and 12/31) reasonably precludes manroland from fulfilling its obligation under the [Machinery] Contract to deliver the [Printing Press]” to Kappa’s plant in Pittston, Pennsylvania, by the December 31, 2011 delivery date. (R. 50, manro-land’s Rule 56.1 Resp. ¶ 40; R. 48, Kour-sa’s Rule 56.1 Resp. ¶ 19; R. 46, Koursa’s Facts, Ex. 30, MANR000879.) Bonner also stated that: “Based on manroland’s breach of the [Machinery] Contract this letter constitutes [Koursa’s] demand for the refund to Koursa by manroland of the $317,500.00 deposit previously paid by Koursa under the [Machinery] Contract.” (R. 48, Koursa’s Rule 56.1 Resp. ¶ 19; R. 46, Koursa’s Facts, Ex. 30, MANR000879.) Bonner further stated that although Kour-sa was “disappointed by manroland’s breach of the [Machinery] Contract, Kour-sa would agree to proceed with the [Machinery] Contract if manroland is able to procure an earlier shipment date for the [Printing Press] from Germany that would result in an arrival in the U.S. no later than December 27, 2011.” (R. 50, manro-land’s Rule 56.1 Resp. ¶ 41; R. 48, Kour-sa’s Rule 56.1 Resp. ¶ 19; R. 46, Koursa’s Facts, Ex. 30, MANR000879.) Bonner further noted that, because of its concerns, Koursa required that one of its representatives go to Germany to observe loading and shipment of the Printing Press before making an additional payment. (R. 50, manroland’s Rule 56.1 Resp. ¶ 41.)

At his deposition, Hawrysz testified that, to his knowledge, manroland did not provide Koursa with the details of how it would accomplish delivery by December 31, 2011, and it only provided Koursa with the assurances that the Printing Press would be there. (R. 46, Koursa’s Facts, Ex. 4, Hawrysz Dep. at 97:20-98-1, 100:5-8.) He also testified that the only thing manroland told Bonner was that manroland would “be sure it would get there.” (Id. at 113:8-11.) Hawrysz further testified that in January 2012 he had “theoretical” discussions and plans with Howes, but nothing was confirmed in writing. (Id. at 100:11-101:3, 101:22-102:12.) Hawrysz also testified that manroland did not make any plans, but that it was “aware of compensating action that [it] could take.” (Id. at 112:10-17.) Mugavero testified that he recalled telling Koursa that the Printing Press would be there by December 31, 2011. (R. 50, manroland’s Rule 56.1 Resp. ¶ 42, Mugavero Dep. at 135:14-17.) John Howes, a manroland employee, testified that the plan for meeting the December 31, 2011 delivery date was “that when [the Printing Press] was off-loaded [manroland] would have ... gotten a priority loading which [it] could get the [Printing Press] as soon as it was available and get it to [Koursa] and get it off-loaded.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 43, Aug. 28, 2012 John Howes Dep. at 170:13-172:5.) On December 12, 2011, Lapinski and Hawrysz responded to Bonner’s December 9 Letter, stating that manroland understood Bonner’s concerns, yet insisted on full payment of $1,124,930.00. (R. 50, manroland’s Rule 56.1 Resp. ¶ 45; R. 48, Koursa’s Rule 56.1 Resp. ¶ 20; R. 46, Koursa’s Facts, Ex. 31, MANR002538.) Manroland’s December 12 Letter advised that manroland intended to deliver the Printing Press no later than December 31, 2011. (R. 50, manroland’s Rule 56.1 Resp. ¶ 45; R. 48, Koursa’s Rule 56.1 Resp. ¶ 20.) Manroland’s December 12 Letter further sought confirmation that the additional $801,350.00 would be paid upon delivery of the Printing Press. (R. 50, manroland’s Rule 56.1 Resp. ¶ 45; R. 48, Koursa’s Rule 56.1 Resp. ¶ 20.) In addition, manroland’s December 12 Letter advised that manro-land required access to Kappa’s facility on December 29-81, 2011, in order to complete delivery of the Printing Press. (R. 50, manroland’s Rule 56.1 Resp. ¶ 46; R. 48, Koursa’s Rule 56.1 Resp. ¶ 20.) Bonner testified that manroland’s December 12 Letter confirmed Koursa’s understanding that delivery required unloading and placing the Printing Press in Kappa’s facility, “not just dropping it on the dock.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 46; R. 46, Koursa’s Facts, Ex. 3, Bonner Dep. at 146:9-147:2.) Bonner further testified that manroland’s December 12 Letter did not alleviate Koursa’s concern that the Printing Press would be delivered by December 31, 2011, and that manroland’s demand for payment added to his insecurity. (R. 46, Koursa’s Facts, Ex. 3, Bonner Dep. at 145:13-18,147:3-13.)

On December 13, 2011, Bonner responded to manroland’s December 12 Letter and stated that in Brown’s November 29 e-mail he reconfirmed the loading and receipt date that manroland had previously committed to and that Koursa had relied upon when executing the Machinery Contract. (R. 46, Koursa’s Facts, Ex. 32, MANR001330.) Specifically, Bonner noted that Brown had confirmed that the Printing Press was booked to ship from Antwerp on the Santa Bettina on December 14, 2011 to arrive in the United States on December 22, 2011, and to be delivered to Kappa’s plant to begin unloading by December 27, 2011. (Id.) Bonner further wrote that in manroland’s December 9 Letter, “the estimated shipping date ha[d] been unilaterally changed by manroland to December 21, 2011 and the estimated arrival date in the U.S. is December 29, 2011.” (Id.) According to Bonner, the variation in the shipping schedule “when combined with manroland AG’s bankruptcy and the stated estimates in [manroland’s December 9 Letter], left [Koursa] no choice but to offer the placement of a Letter of Credit or some other form of escrow of funds pending actual delivery of the [Printing Press] at Kappa Graphics facility by December 31, 2011.” (Id.) In addition, Bonner expressed concern that the bankruptcy of manroland AG created a cloud on clear title on the Printing Press. (R. 50, manroland’s Rule 56.1 Resp. ¶ 48; R. 46, Koursa’s Facts, Ex. 32, MANR001330.) Bonner also demanded the return of its $317,500.00 deposit that it had previously paid to manroland per the terms of the Machinery Contract. (R. 48, Koursa’s Rule 56.1 Resp. ¶ 21; R. 46, Koursa’s Facts, Ex. 32, MANR001330.)

On December 13, 2011, manroland AG confirmed to manroland that the Printing Press “has been completed on the assembly line in the fashion set out by you.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 73, MANR006424.) On December 21, 2011, however, a manroland employee noted that manroland was “about to complete the missing parts in an extra container.” (R. 46, Koursa’s Facts, Ex. 54, MANR002151.) Indeed, on January 4, 2012, Howes forwarded an email to Mugavero noting that the Printing Press’ missing parts weighed approximately 760 kilograms, and that they would be delivered by air freight. (R. 46, Koursa’s Facts, Ex. 55, MANR000280-81.)

On December 14, 2011, Lapinski and Hawrysz responded to Bonner’s December 12 Letter and stated that manroland intended to deliver the Printing Press no later than December 31, 2011. (R. 48, Koursa’s Rule 56.1 Resp. ¶ 22; R. 50, man-roland’s Rule 56.1 Resp. ¶ 49; R. 46, Kour-sa’s Facts, Ex. 33, MANR000883.) Man-roland further advised, in part:

However, even if that were not the case, Section 7.15 of the [Machinery] Contract provides that neither party may be “held liable nor deemed in default hereunder for any delay or failure to perform as a result of] ... work stoppages or slowdowns ... or governmental intervention.” We believe that the business difficulties impacting manroland AG fall under these extraordinary circumstances, which circumstance would explicitly mitigate Koursa’s right of termination under Section 7.4 of the [Machinery] Contract in the event that delivery is delayed.

(R. 50, manroland’s Rule 56.1 Resp. ¶ 49; R. 46, Koursa’s Facts, Ex. 33, MANR000883.) Manroland’s December 14 Letter further stated: “Notwithstanding manroland’s intention to perform as promised, following recent discussions and the meeting between our respective representatives this morning ... we now understand that Koursa will not comply with its upcoming payment obligations under the [Machinery] Contract.” (R. 48, Kour-sa’s Rule 56.1 Resp. ¶ 22; R. 46, Koursa’s Facts, Ex. 33, MANR000883.) Therefore, manroland stated that it would not “reasonably proceed with performance under the [Machinery] Contract at this time until it receives assurances from Koursa that your payment will be tendered as previously agreed under the [Machinery] Contract.” (Id.) Karabots testified that manroland’s December 14 Letter did not provide him with assurance that manro-land would perform under the terms of the Machinery Contract because he thought it was impossible for manroland to deliver the Printing Press by December 31. (R. 46, Koursa’s Facts, Ex. 1, Karabots Dep. at 146:6-146:22.) Bonner testified that manroland’s December 14 Letter did not provide Koursa with assurance that manroland would perform under the terms of the Machinery Contract because it did not specify what manroland would do to guarantee their performance, and manroland’s citation to the Machinery Contract’s force majeure clause raised a red flag to him. (R. 46, Koursa’s Facts, Ex. 3, Bonner Dep. at 201:5-202:3.)

On December 16, 2011, Mugavero emailed Bonner and again demanded payment of $1,124,930.00. (R. 50, manroland’s Rule 56.1 Resp. ¶ 53; R. 46, Koursa’s Facts, Ex. 35, MANR003256.) In response, Karabots advised Lapinski and Hawrysz that manroland’s unilateral rescheduling of the shipment date (i.e., from an estimated arrival of December 22, 2011, to an estimated arrival date of December 29, 2011) “certainly clouds your ability to perform on your contractual commitment of having the complete [Printing P]ress, sans sheeter, on our floor by the 31st of December.” (R. 46, Koursa’s Facts, Ex. 15, MANR000870; R. 50, manroland’s Rule 56.1 Resp. ¶ 54; R. 48, Koursa’s Rule 56.1 Resp. ¶ 23.) Karabots also expressed Koursa’s concern that Koursa would be unable to recover monies paid to manro-land in the event that manroland was unable to timely delivery the Printing Press. (R. 50, manroland’s Rule 56.1 Resp. ¶ 54.)

Lapinski responded to Karabots’ letter by alleging Koursa was in breach of the Machinery Contract. (R. 50, manroland’s Rule 56.1 Resp. ¶ 56; R. 48, Koursa’s Rule 56.1 Resp. ¶ 24; R. 46, Koursa’s Facts, Ex. 36, MANR000915.) In addition, manro-land, which had previously rejected Kour-sa’s proposed letter of credit, now proposed that Koursa post a letter of credit conditioned only on delivery of the Printing Press to the Kappa facility. (R. 50, manroland’s Rule 56.1 Resp. ¶ 56.) Man-roland’s response did not address Koursa’s concern that Koursa would be unable to recover monies paid to manroland in the event that manroland was unable to timely delivery the Printing Press. (R. 46, Kour-sa’s Facts, Ex. 36, MANR000915.) In response, Bonner advised Lapinski that manroland’s proposal was flawed because it did not condition the letter of credit on delivery of the Printing Press to the Kappa facility by December 31, 2011, as required by the Machinery Contract. (R. 50, manroland’s Rule 56.1 Resp. ¶ 57; R. 46, Koursa’s Facts, Ex. 37, MANR002627.) On December 22, 2011, Lapinski sent Koursa and other customers a letter advising that, as a result of manroland AG’s insolvency, manroland had to change its “standard Net 30 day payment terms for parts and service to Net 10 days.” (R. 50, manroland’s Rule 56.1 Resp. ¶ 58; R. 46, Koursa’s Facts, Ex. 38, MANR002632.)

The Printing Press never shipped. (R. 50, manroland’s Rule 56.1 Resp. ¶ 18.) Koursa never paid manroland for the second part of the Machinery Contract. (R. 50, manroland’s Rule 56.1 Resp., Hawrysz Aff. ¶ 5.) On December 21, 2011, manro-land confirmed that the shipment of the Printing Press was stopped at the harbor. (R. 46, Koursa’s Facts, Ex. 54, MANR002151.)

Procedural History

Koursa initiated this action on February 2, 2012, by filing a two-count complaint alleging claims for anticipatory breach of contract and repudiation of contract. (R. 1, Compl. at 6-7.) The day prior to the filing of the instant action, manroland filed an action in the Circuit Court of the Eighteenth Judicial Circuit of the State of Illinois alleging breach of contract and anticipatory repudiation (“manroland State Action”). (R. 9-2, Jt. Mot., Ex. B., man-roland Compl. at 2-10.) On February 3, 2012, Koursa removed the manroland State Action to the District Court for the Northern District of Illinois. (R. 9, Jt. Mot. at 2; manroland v. Koursa, No.2012 L 00781, ECF No. 1, Not. Removal.) Thereafter, on February 22, 2012, the parties filed a joint motion to reassign and consolidate the now-removed manroland State Action with the instant action and to stay the action for 45 days while the parties engaged in settlement negotiations. (R. 9, Jt. Mot. at 1.) On February 29, 2012, the Court granted the joint motion and stayed the action. (R. 12, Min.Entry.) After settlement discussions were unsuccessful, the Court directed the parties to proceed with all discovery. (R. 20, MimEntry.)

On June 29, 2012, manroland answered Koursa’s complaint and filed a counterclaim reiterating its breach of contract and anticipatory repudiation claims from the now-removed manroland State Action. (R. 25, manroland’s Answer & Countercl.) On July 17, 2012, Koursa filed an answer and affirmative defenses to manroland’s counterclaim. (R. 28, Koursa’s Answer.) Discovery closed on September 27, 2012. (R. 31, MimEntry.)

On October 5, 2012, manroland moved for summary judgment in its favor. (R. 37, manroland’s Mot.) Manroland argues that the Court should enter summary judgment in its favor on Counts I and II of Koursa’s complaint, for anticipatory breach of contract and repudiation of contract, respectively, and on Counts I and II of manroland’s counterclaim, for breach of contract and anticipatory repudiation, respectively. (R. 38, manroland’s Mem. at 8-14.) Manroland contends that Koursa anticipatorily breached the Machinery Contract by failing to make a second payment after manroland provided it with affirmations that the Printing Press would be delivered by December 31. (Id. at 8-9.) Manroland further argues that Koursa never sought adequate assurance of performance from manroland, and that even if it did, manroland provided adequate assur-anee. (Id. at 9-14.) Finally, manroland argues that the Court should enter summary judgment in its favor in the amount specified in the Machinery Contract. (Id. at 14-15.)

On November 19, 2012, Koursa filed its opposition to manroland’s motion for summary judgment, (R. 47, Koursa’s Opp.), responses and objections to manroland’s statement of facts, (R. 48, Koursa’s Rule 56.1 Resp.), and a statement of additional material facts requiring the denial of man-roland’s motion, (R. 52, Koursa’s Add’l Facts). Koursa argues that summary judgment should not be entered in manro-land’s favor because, according to Koursa, Koursa did not anticipatorily breach the Machinery Contract, manroland failed to provide adequate assurance, and manro-land anticipatorily breached the Machinery Contract prior to the second payment’s due date. (R. 47, Koursa’s Opp. at 2-13.) Koursa also argues that manroland is not entitled to summary judgment in the amount specified in the Machinery Contract because Koursa neither breached nor repudiated the Machinery Contract. (Id. at 14-16.)

Koursa filed its own motion for summary judgment on October 22, 2012. (R. 44, Koursa’s Mot.) Koursa argues that it is entitled to judgment in its favor because manroland anticipatorily breached the contract by failing to ensure timely shipment of the Printing Press and repudiated the contract by failing to provide adequate assurance after Koursa became insecure about manroland’s ability to perform under the Machinery Contract. (Id. at 3-14.) On November 19, 2012, manroland filed a response to Koursa’s motion for summary judgment, (R. 49, manroland’s Resp.), a response to Koursa’s statement of material facts, (R. 50, manroland’s Rule 56.1 Resp.), and a statement of additional facts in support of its response to Koursa’s motion, (R. 51, manroland’s Add’l Facts). Manroland argues that Koursa’s motion should be denied because it was Koursa, and not man-roland, that anticipatorily repudiated the Machinery Contract. (R. 49, manroland’s Resp. at 5-7.) Manroland further argues that Koursa never sought adequate assurance, and that even if it did, manroland provided such assurance. (Id. at 8-15.)

Legal Standard

Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). The Supreme Court has said that summary judgment is proper “ ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c) (1987)). In deciding a motion for summary judgment, the Court does not evaluate the weight of the evidence, judge the credibility of the witnesses, or determine the ultimate truth of the matter; instead, it is the function of this Court in ruling on a motion for summary judgment to ascertain whether there exists a genuine issue of triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “A disputed fact is ‘material’ if it might affect the outcome of the suit under governing law.” Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir.2009). In determining whether a genuine issue of material fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Omnicare Inc. v. United-Health Grp., Inc., 629 F.3d 697, 704 (7th Cir.2011) (“Even on summary judgment, district courts are not required to draw every requested inference; they must only draw reasonable ones that are supported by the record.”)

The moving party has the initial burden of demonstrating that it is entitled to judgment as a matter of law. See Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir.2008); see also Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. The moving party “can prevail just by showing that the other party has no evidence on an issue on which that party has the burden of proof.” Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183 (7th Cir.1993) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548); Wheeler, 539 F.3d 634 (“The moving party bears the initial burden of demonstrating that these requirements have been met; it may discharge this responsibility by showing ‘that there is an absence of evidence to support the non-moving party’s case.’ ”) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). Once the moving party has met this burden, the non-moving party must “set forth specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 322 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e) (1987)); Wheeler, 539 F.3d at 634 (“To overcome a motion for summary judgment, the non-moving party must come forward with specific facts demonstrating that there is a genuine issue for trial.”) (citing Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The non-moving party may not rely on mere conclusions or allegations to create a genuinely disputed issue of material fact. See Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th Cir.2003) (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505). Nor can mere speculation “be used to manufacture a genuine issue of fact.” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.2008) (internal quotation marks omitted) (quoting Amadio v. Ford Motor Co., 238 F.3d 919, 927 (7th Cir.2001)). In order to defeat a motion for summary judgment, the nonmoving party “must make a showing sufficient to establish any essential element of [his] cause of action for which [he] will bear the burden of persuasion at trial.” Smith ex rel. Smith v. Severn, 129 F.3d 419, 427 (7th Cir.1997) (citing Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548). “The existence of a mere scintilla of evidence, however, is insufficient to fulfill this requirement. The non-moving party must show that there is evidence upon which a jury reasonably could find for [him].” Wheeler, 539 F.3d at 634 (internal citation omitted). On cross-motions for summary judgment, each movant must satisfy the requirements of Federal Rule of Civil Procedure 56. See Cont’l Cas. Co. v. NW Nat’l Ins. Co., 427 F.3d 1038, 1041 (7th Cir.2005).

Analysis

I. Jurisdiction and applicable law

Neither party disputes federal subject matter jurisdiction, (R. 48, Koursa’s Rule 56.1 Resp. ¶ 1; R. 50, manroland’s Rule 56.1 Resp. ¶ 3), but this Court must consider the issue on its own initiative. Fid. & Deposit Co. of Md. v. City of Sheboygan Falls, 713 F.2d 1261, 1264-65 (7th Cir.1983). Koursa avers that this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332, (R. 1, Compl. ¶7), which requires diversity of citizenship and that the amount in controversy exceed the statutory requirement of $75,000. 28 U.S.C. § 1332. The parties must be completely diverse, Strawbridge v. Curtiss, 1 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), and they are: Koursa is a Pennsylvania corporation with its principal place of business in Pennsylvania. (R. 46, Koursa’s Facts ¶ 1.) Manroland is a Delaware corporation with its principal place of business located in Illinois. (Id. ¶ 2.) Koursa seeks to recover its $317,000 down payment plus expenses, which meets the statutory requirement. Thus, the Court concludes that it has subject matter jurisdiction based on diversity of citizenship.

In federal cases based on diversity jurisdiction, federal courts apply state substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The law governing choice of law is substantive law, Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 498, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), and thus the Court applies Illinois law governing choice of law. The Machinery Contract stipulates that it “shall be governed by and construed in accordance with the laws of the State of Illinois.” (R. 1-1, Machinery Contract at 25.) “So long as a choice of law provision does not contravene Illinois public policy and there is some relationship between the chosen forum and the parties to the transaction, an express choice of law provision will be given full effect.” Freeman v. Williamson, 383 Ill.App.3d 933, 322 Ill.Dec. 208, 890 N.E.2d 1127, 1133 (2008). Here, neither party contests the choice