In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1350
KECK GARRETT & ASSOCIATES,
INCORPORATED,
Plaintiff-Appellant,
v.
NEXTEL COMMUNICATIONS,
INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 3265—Rebecca R. Pallmeyer, Judge.
____________
ARGUED NOVEMBER 9, 2007—DECIDED FEBRUARY 21, 2008
____________
Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Keck Garrett & Associates, Inc.,
brought this diversity action against Nextel Communica-
tions, Inc. It sought recovery from Nextel for breach of
contract and in quantum meruit. After discovery, the
parties filed cross-motions for summary judgment. Keck
Garrett failed to defend its quantum meruit claim and
thereby abandoned it. The district court granted Nextel’s
summary judgment motion on the remaining claim because
2 No. 07-1350
it found that Nextel had not violated any provision of the
contract. Keck Garrett appealed to this court. It also filed
two motions for sanctions against Nextel, one in the dis-
trict court and one in this court.
For the reasons stated in this opinion, we affirm the
judgment of the district court. We further hold that we
lack jurisdiction to consider Keck Garrett’s motion for
sanctions.
I
BACKGROUND
A.
Keck Garrett is an Illinois corporation with its principal
place of business in Illinois. It markets communications
and provides branding strategies for businesses. From
1997 to 2003, it provided product packaging design and
related services to Nextel. Nextel is a Delaware corpora-
tion with its principal place of business in Reston, Virginia.
Through its wholly owned subsidiaries, Nextel provides
fully integrated wireless communication services.
Keck Garrett’s dispute with Nextel centers on the Falcon
Project, a packaging initiative that Nextel was planning
for 2003. In 2002, Keck Garrett worked on Nextel’s Condor
Project, an industrial design and creative design project
that supported Nextel’s launch of a new platform of
wireless devices developed by Motorola. At that time,
Brian Lausch was the Nextel representative responsible
for managing Nextel’s relationship with Keck Garrett. At
the press release for the Condor Project in late 2002, Lausch
mentioned that Keck Garrett might be assigned to work on
the Falcon Project in 2003.
No. 07-1350 3
The Falcon Project was never assigned to Keck Garrett.
Nextel discussed the project with Keck Garrett in early
January 2003, and it e-mailed to the company a confidential
document entitled “Falcon Packaging Requirements.” The
document and the e-mail indicated that the industrial
design plans were still uncertain and that Nextel did not
know the scope of its creative needs.
In mid-January 2003, Nextel informed Keck Garrett that
another company was working with it on the industrial
design aspects of the Falcon Project. It did, however, inform
Keck Garrett that it still planned to assign the creative
packaging work to Keck Garrett. Several times, Nextel
told Keck Garrett that it planned to prepare a “creative
brief” that would describe its creative needs. Nextel indi-
cated that, once it developed the creative brief, Keck Garrett
would be able to determine the amount and type of
work that would be required and to inform Nextel of
how much that work would cost.
In late January, Lausch and his supervisor, Jim
Obermeyer, held a conference call with representatives of
Keck Garrett. They gave a PowerPoint presentation during
that meeting in order to keep Keck Garrett informed
of Nextel’s plan for its brand. Nextel regularly kept its
marketing partners up-to-date on its branding strategies,
even if Nextel was not engaged with the partner in on-
going or upcoming projects.
On January 23, 2003, Nextel issued a $1 million blanket
purchase order to Keck Garrett for that year’s anticipated
packaging work. Nextel issues written purchase orders to
all agencies that work with it. These documents establish
the terms and conditions of the relationship between Nextel
and each of its vendors. The blanket purchase orders
generally do not describe any particular work or project;
4 No. 07-1350
instead, they set forth the terms and conditions that
will govern any work that the vendor may be asked to
complete in a given time period. Nextel issues blanket
purchase orders in part to expedite payment to vendors
by eliminating the need to issue a separate purchase order
each time an estimate for work is submitted. A blanket
purchase order authorizes particular Nextel representa-
tives to assign work to a given vendor, up to the value of
the blanket purchase order, without having to seek internal
authorization for additional purchase order numbers.
Even with a blanket purchase order, however, the vendor
had to send in an estimate for approval; the blanket pur-
chase order only eliminated the need for a separately
authorized purchase order for each estimate.
Nextel often issued blanket purchase orders to Keck
Garrett over their years of work together. Keck Garrett
understood that Nextel would pay only for work that it
had approved on the basis of a signed estimate. Keck
Garrett therefore usually began work only after Nextel
approved an estimate of the costs. If Keck Garrett was in
the middle of an assigned project for Nextel and it was
determined that the project would exceed the approved
estimate, however, Keck Garrett sometimes continued
to work on the project even if it had not yet received a
signed approval from Lausch. Nextel generally refused to
move back deadlines for any reason; in this way, Keck
Garrett was able to complete Nextel’s projects on time,
although at the risk of not receiving approval for the
expanded project.
Vicki Hall, a financial analyst at Nextel, forwarded the
2003 blanket purchase order to Keck Garrett by e-mail to
inform Keck Garrett of its purchase order number for
that year. The 2003 blanket purchase order stated that it
was a “Blanket Order for 2003 Phone & Accessory Pack-
No. 07-1350 5
aging” and listed Hall and Lausch as the persons autho-
rized to release funds. The “delivery date” for “2003 Blanket
Order for Phone & Accessory Packaging,” the same type
of work that Keck Garrett had done for Nextel in the past,
was December 31, 2003. The blanket purchase order also
included the terms and conditions to govern their rela-
tionship.
Keck Garrett and Nextel agree that the 2003 blanket
purchase order is an integrated contract that is governed
by and subject to Delaware law. The parties further agree
that, under the blanket purchase order, the supplier must
pay Nextel’s costs and reasonable attorneys’ fees if Nextel
defends any action brought by a supplier and prevails.
Among other incorporated terms and conditions in the
blanket purchase order is a provision governing “pay-
ments and invoices.” The provision states that the “Sup-
plier shall be paid upon the submission of proper in-
voices or vouchers, the prices stipulated herein for work
completed and/or Articles delivered and accepted, less
any proper deductions or setoffs.” R.1 at 4. The provision
further requires that invoices include the “Purchase
Order number, item number, description of Articles or
work, sizes, quantities, unit prices, and extended totals.” Id.
The 2003 blanket purchase order also permits Nextel
to make changes in writing to the general scope of the
blanket purchase order, including changes to the descrip-
tion, time and performance of services.
Shortly after the 2003 blanket purchase order was
issued, Keck Garrett submitted to Nextel invoices totaling
$19,700. The invoices used the purchase order number
on the 2003 blanket purchase order. The invoices were not
for Falcon Project work, but for work that had been as-
signed under the Condor Project. Nextel paid the invoices.
6 No. 07-1350
In the months after the 2003 blanket purchase order
was issued, Keck Garrett and Nextel exchanged a series
of e-mails about the Falcon Project. Nextel e-mailed sev-
eral Falcon-related documents to Keck Garrett, including
the packaging concept timeline for the Falcon Project
and potential packaging structures that Nextel was con-
sidering. If Nextel had assigned the creative design pro-
ject to Keck Garrett, Keck Garrett would have been placing
its creative design on these packages. Some of the informa-
tion was highly confidential. The e-mails also clearly
stated, however, that the creative requirements for the
Falcon Project were still to be determined. The creative
design, the scope of which was still uncertain, was the
aspect that Keck Garrett expected to complete.
In late February, Keck Garrett e-mailed Lausch about
the progress of the packaging structure. Keck Garrett also
asked when it might need to start “concepting” the designs.
Keck Garrett indicated that the company was trying to
plan in advance for scheduling purposes. Nextel stated
again that it was planning to prepare a formal creative
brief for the Falcon Project in the following weeks, but
it had not yet done so.
In mid-March, Lausch e-mailed Keck Garrett to let it
know that the creative brief was nearly complete and
that he hoped to share it with Keck Garrett during the
first week of April. Keck Garrett responded that it
would get started on the Falcon Project as soon as it re-
ceived the creative brief. Not having received the brief,
Keck Garrett sent another e-mail as late as May 6 asking
when Nextel would release the Falcon Project so that
Keck Garrett could “get started.”
On May 19, 2003, Nextel informed Keck Garrett that it
would not need Keck Garrett’s creative packaging work
No. 07-1350 7
on the Falcon Project. Nextel had been in the process of
vetting new advertising agencies, and the agency it just
had hired had offered to perform the packaging work at
no additional cost. Nextel did not refrain from assigning
work to Keck Garrett over performance issues; the deci-
sion was motivated purely by competitive business inter-
ests. Nextel never assigned the Falcon Project to Keck
Garrett. Keck Garrett never received a written change
order under the 2003 blanket purchase order after it was
informed that it would not be assigned the Falcon Project.
Keck Garrett asked Nextel to reconsider its decision.
Nextel confirmed that it would not reconsider, and it
offered to pay any of Keck Garrett’s outstanding invoices.
Keck Garrett then billed Nextel for $145,000. The invoice,
dated August 5, 2003, was for preliminary Falcon Project
packaging and design research. The invoice did not seek
recompense for work assigned to Keck Garrett by Nextel.
Rather, it included salaries for people waiting for the
Falcon Project and some amount for the insult of the
termination.
After receipt of the invoice, Nextel asked Keck Garrett
to supply documentation to support its charges. On Septem-
ber 4, 2003, Keck Garrett sent Nextel the following
internal documents in response: the PowerPoint presenta-
tion Nextel had sent Keck Garrett; a few undated internal
Keck Garrett memoranda; printouts of e-mails between
Keck Garrett and Nextel; and other general materials,
including newspaper articles and publications produced
by third parties regarding color and shape. Nextel re-
viewed the materials and, on January 2, 2004, it sent Keck
Garrett a letter denying payment. The letter stated:
This body of work does not provide, nor do we feel
it would have provided, any valuable or actionable
findings, take aways or insights relative to the Falcon
8 No. 07-1350
packaging project. Again, Nextel marketing communi-
cation did not pre-authorize any preliminary com-
petitive research, design or design research and we
were very clear throughout our communications in
the first half of 2003 that the scope of our creative
requirements was uncertain.
R.52 ¶ 119. Keck Garrett acknowledges that Nextel did not
specifically ask it to perform any preliminary work.
In November 2004, Nextel again asked whether Keck
Garrett had any outstanding invoices. A month later, Keck
Garrett again requested payment of the $145,000 invoice
plus interest. Keck Garrett further stated that, if it did not
receive the payment, it would pursue legal action. In
May 2006, months after it had filed this suit against
Nextel, Keck Garrett sent Nextel a $1 million invoice that
referenced the 2003 blanket purchase order.
B.
Keck Garrett sought recovery against Nextel on two
theories. Characterizing Nextel’s action as a breach of
contract, Keck Garrett sought $1 million, an amount that
it characterizes as the value of the 2003 blanket pur-
chase order. Keck Garrett also sought payment on the
$145,000 invoice under the contract. Alternately, Keck
Garrett sought recovery in quantum meruit.
After discovery, both parties moved for summary judg-
ment. Nextel and Keck Garrett stipulated that the 2003
blanket purchase order is a fully integrated contract sub-
ject to Delaware law. Nextel’s motion requested sum-
mary judgment on both the breach of contract claim and
the quantum meruit claim. Nextel also maintained that,
No. 07-1350 9
if the court granted its motion for summary judgment,
it was entitled to costs and reasonable attorneys’ fees
under the terms of the 2003 blanket purchase order.
In reply to Nextel’s motion for summary judgment, Keck
Garrett responded only to the breach of contract arguments;
it contended that Nextel had repudiated the contract
when it gave its advertising work to another company. In
its own brief in support of its motion for summary judg-
ment, Keck Garrett submitted that Nextel breached the
2003 blanket purchase order when it assigned Keck
Garrett’s packaging work to another company.
In evaluating the parties’ positions, the district court first
noted that neither Keck Garrett’s motion for summary
judgment nor its response to Nextel’s motion for summary
judgment addressed the quantum meruit claim. It deter-
mined, therefore, that Keck Garrett had abandoned that
claim.
Second, the court concluded that Nextel had no obliga-
tion to pay the $145,000 invoice. The 2003 blanket pur-
chase order explicitly stated that Nextel would pay upon
Keck Garrett’s “submission of proper invoices or vouchers,
the prices stipulated herein for work completed and/or
Articles delivered and accepted, less any proper deduc-
tions or setoffs.” R.1 at 4. The court concluded that this
provision required Keck Garrett to submit an invoice “for
work completed,” delivered to and accepted by Nextel.
The court concluded that, even read broadly, “work
completed” did not include work that was not requested
by Nextel and was of no value to it.1
1
The district court also determined that Nextel consistently had
maintained its position throughout the litigation that the
(continued...)
10 No. 07-1350
Finally, the court determined that Nextel did not breach
the 2003 blanket purchase order when it decided not to
assign to Keck Garrett any work on the Falcon Project. The
court concluded that the 2003 blanket purchase order did
not guarantee that Nextel would assign any amount of
work to Keck Garrett. The court considered and rejected
four sets of reasons, propounded by Keck Garrett, why
it was entitled to recover from Nextel: the contract’s
terms; an alleged oral agreement that predated the 2003
blanket purchase order; blanket purchase orders that
Nextel had issued to Keck Garrett before 2003; and the
argument that the contract, if found not to have been
breached, was illusory.
The district court then granted Nextel’s motion for
summary judgment and denied Keck Garrett’s motion. Keck
Garrett timely appealed.
C.
During the pendency of this appeal, Keck Garrett filed
a motion in the district court for sanctions against Nextel.
Keck Garrett and Nextel had participated in a Circuit
Rule 33 settlement conference. Thereafter, during a pro-
ceeding regarding attorneys’ fees before the district
court, Nextel disclosed information that it allegedly had
obtained during the settlement conference. Keck Garrett
requested that the district court impose Rule 11 sanctions
against Nextel for violating the confidentiality require-
ments of the Rule 33 settlement conference.
1
(...continued)
work Keck Garrett had submitted to Nextel had not been
requested or authorized by Nextel and was of no value to it.
No. 07-1350 11
Keck Garrett also filed a motion for sanctions in this
court. That motion incorporated the motion to the district
court. Keck Garrett specifically requested that, as a sanc-
tion, we strike Nextel’s motion for attorneys’ fees that
was then pending before the district court.
II
DISCUSSION
The general principles that guide our review of a
case coming to us on summary judgment are well-estab-
lished. We review de novo a district court’s decision on a
motion for summary judgment and construe all facts in
favor of the non-moving party. Cherry v. Auburn Gear, Inc.,
441 F.3d 476, 481 (7th Cir. 2006). On cross-motions for
summary judgment, the court construes facts and draws
inferences “in favor of the party against whom the mo-
tion under consideration is made.” In re United Air Lines,
Inc., 453 F.3d 463, 468 (7th Cir. 2006) (citation omitted).
Summary judgment is appropriate 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.”
Fed. R. Civ. P. 56(c); see also In re United Air Lines, 453
F.3d at 468.
Contract interpretation is a matter of law. Cherry, 441
F.3d at 481. If a contract is not ambiguous and does not
require the court to look to extrinsic evidence, there are no
factual disputes to preclude summary judgment. See id.
However, “summary judgment is not warranted when there
are genuine issues of material fact with respect to inter-
pretation of a contract.” Id.
12 No. 07-1350
A.
1. The $145,000 Invoice
Keck Garrett first submits that the district court erred
when it granted summary judgment for Nextel on the issue
of whether it should pay the $145,000 invoice. In resolving
this issue, the district court made three factual determina-
tions, each of which is supported by the record: that Nextel
did not assign any work to Keck Garrett, that Keck Garrett
did not complete any properly assigned work and that
the work it had submitted was of no value to Nextel. The
district court also correctly determined that, from the
first time it refused to pay the invoice, Nextel had main-
tained consistently that it would not pay the $145,000
because Keck Garrett had not been assigned any work
under the 2003 blanket purchase order and because the
work Keck Garrett had completed was of no value to
Nextel.
The record supports the district court’s determination
that the 2003 blanket purchase order did not require
Nextel to pay the $145,000 invoice. The 2003 blanket
purchase order required Nextel to pay an invoice only
upon Keck Garrett’s “submission of proper invoices or
vouchers, the prices stipulated herein for work completed
and/or Articles delivered and accepted, less any proper
deductions or setoffs.” R.1 at 4. Even read broadly, the
term “work completed” could not be understood to en-
compass work that was not requested by and was of no
value to Nextel. It is undisputed that the work Keck Garrett
submitted was of no value to Nextel. It also is undisputed
that the work submitted by Keck Garrett was not re-
quested by Nextel. In fact, the “work” consisted largely of
documents Nextel had sent to Keck Garrett.
No. 07-1350 13
Keck Garrett contends that Nextel only recently adopted
the position that it refused to pay the invoice because
the work was not requested by Nextel and was no value
to it. Keck Garrett maintains that Nextel should not have
been permitted to advance those arguments in its motion
for summary judgment because they were inconsistent
with its original position. We cannot accept this conten-
tion. In Nextel’s original letter to Keck Garrett, it stated:
This body of work does not provide, nor do we feel it
would have provided, any valuable or actionable
findings, take aways or insights relative to the Falcon
packaging project. Again, Nextel marketing communi-
cation did not pre-authorize any preliminary com-
petitive research, design or design research and we
were very clear throughout our communications in
the first half of 2003 that the scope of our creative
requirements was uncertain.
R.52 at ¶ 119. This statement is consistent with Nextel’s
position in the district court and on appeal.
In its effort to establish that it was owed $145,000, Keck
Garrett relied upon a handful of internal memoranda,
e-mails between Keck Garrett and Nextel and documents
that it had received from Nextel. The $145,000 invoice
also included charges for employees waiting for the
Falcon Project, even though Nextel had never requested that
any Keck Garrett employee be placed on hold and
even though the 2003 blanket purchase order did not place
on Keck Garrett an obligation to accept any work from
Nextel. The invoice also included a charge for the “insult”
of Nextel’s having chosen another firm for its creative
packaging needs. None of these charges fall within the
terms of the 2003 blanket purchase order because they
do not represent “work completed and/or Articles deliv-
14 No. 07-1350
ered and accepted.” The record simply will not support
a conclusion that Keck Garrett completed work contem-
plated by the purchase order. Nor has Keck Garrett estab-
lished any factual dispute that would deny Nextel sum-
mary judgment with respect to the $145,000 invoice.
2. Breach of the 2003 Blanket Purchase Order
Keck Garrett next submits that the district court erred
when it held that Nextel had no obligation to pay it
$1 million, the amount that Keck Garrett characterizes
as the full value of the 2003 blanket purchase order. In Keck
Garrett’s view, Nextel breached the 2003 blanket pur-
chase order by failing to assign it any work and by refusing
to pay what it considers to be the full value of the contract.
Keck Garrett characterizes the 2003 blanket purchase
order as a commitment by Nextel to assign it $1 million
worth of work in 2003. Alternately, Keck Garrett con-
tends the 2003 blanket purchase order was a commitment to
pay Keck Garrett $1 million, regardless of the amount
of work Nextel assigned to or accepted from Keck Garrett.
Keck Garrett believes that Nextel effectively repudiated
the contract. Therefore, Keck Garrett reasons, it was not
required to perform any work before becoming entitled to
the $1 million value of the contract.
In reply, Nextel asserts that the 2003 blanket purchase
order controlled the relationship between Keck Garrett and
Nextel. The blanket purchase order was created in con-
nection with Nextel’s budgeting process and reflected its
estimate that, during 2003, it would spend $1 million on
packaging projects with Keck Garrett. In Nextel’s view,
the 2003 blanket purchase order does not guarantee any
amount of work or any payment to Keck Garrett. Conse-
No. 07-1350 15
quently, Nextel contends, it did not breach the contract
when it assigned the Falcon Project to another company.
Nextel is correct in its view that no term or condition
of the 2003 blanket purchase order guarantees a minimum
payment to Keck Garrett. The 2003 blanket purchase order
simply authorized specific Nextel employees to release
funds to Keck Garrett against the purchase order, up to
a total of $1 million over the course of 2003. The blanket
purchase order provided that Keck Garrett would be
paid according to its terms only when Keck Garrett sub-
mitted proper invoices. A proper invoice was for work
accepted by Nextel. Specifically, the 2003 blanket purchase
order required Nextel to pay Keck Garrett only upon
“submission of proper invoices or vouchers, the prices
stipulated herein for work completed and/or Articles
delivered and accepted, less any proper deductions or
setoffs.” R.1 at 4. No provision of the contract can be read
to require that Nextel pay $1 million to Keck Garrett
regardless of the amount of work that Nextel actually
assigned to it. In the absence of “proper invoices” for
work that Nextel had assigned and that Keck Garrett
had completed and delivered, Nextel had no obligation to
Keck Garrett.
Indeed, Keck Garrett has pointed to no term or condi-
tion in the 2003 blanket purchase order that guarantees
that Nextel would assign any amount of work to Keck
Garrett. Moreover, no provision of the document requires
Keck Garrett to accept and perform any work. It did not
prohibit Keck Garrett from accepting work on other proj-
ects, including projects for Nextel’s direct competitors.
Rather, the blanket purchase order required Keck Garrett
to perform work in a particular manner and within a
particular time frame if it accepted, throughout the
16 No. 07-1350
course of the year, a project from Nextel. It also provided
remedies to Nextel in the event that Keck Garrett agreed
to do particular work and failed to deliver it in a timely
fashion.
We cannot accept Keck Garrett’s assertion that these
conclusions amount to a ruling that Keck Garrett can only
recover under the purchase order in quantum meruit. Nor
does analysis render the contract illusory. Once Nextel
assigned work to Keck Garrett, the 2003 blanket purchase
order guaranteed payment to Keck Garrett under the
contract’s terms. The document also established the con-
ditions under which Nextel was required to accept work
from Keck Garrett and regulated the manner in which it
could change or modify its work requests once it had
authorized Keck Garrett to begin working.
Keck Garrett also contends that Nextel breached an oral
understanding that supplemented the 2003 blanket pur-
chase order. Such evidence is not properly before the
court, however, because the alleged oral agreement pre-
dated the fully-integrated 2003 blanket purchase order.
Delaware law gives effect to integration clauses when the
contract is a formal written one between sophisticated
parties. J.A. Moore Constr. Co. v. Sussex Assocs. Ltd., 688
F. Supp. 982, 987 (D. Del. 1988). “The parol evidence rule
bars evidence of prior or contemporaneous agree-
ments or negotiations that contradict the terms of an
‘integrated’ . . . writing.” Id. In such circumstances, parol
evidence may only be used “to show fraud, accident or
mistake as a ground for rescission.” Id.
Of course, if contract language is ambiguous, parol
evidence may be used to construe ambiguous terms that
require extrinsic proof to determine their meaning. E.I.
du Pont de Nemours & Co. v. Allstate Ins. Co., 693 A.2d 1059,
No. 07-1350 17
1061 (Del. 1997). However, “[c]ontract language is not
ambiguous simply because the parties disagree on its
meaning.” Id. Ambiguity arises “only when the provisions
in controversy are reasonably or fairly susceptible of
different interpretations or may have two or more differ-
ent meanings.” Id.
The alleged oral agreement constituted parol evidence
under Delaware law. J.A. Moore, 688 F. Supp. at 987. Keck
Garrett has not pointed to any ambiguous terms in the 2003
blanket purchase order whose meaning may be clarified
by parol evidence. Moreover, the district court independ-
ently determined, and we agree, that there were no ambigu-
ous terms in the contract because the 2003 blanket pur-
chase order’s provisions are not reasonably susceptible to
different interpretations. Therefore, any evidence of a
prior oral agreement cannot be used for clarification of
the blanket purchase order, either.
Keck Garrett also asks the court to compare purchase
orders that Nextel had assigned to Keck Garrett in 2001
and 2002 with the 2003 blanket purchase order. Such
evidence, like evidence of the prior oral agreement, is
prohibited by the parol evidence rule. Id.
The district court properly concluded that Nextel did not
breach the 2003 blanket purchase order.2
2
In a similar vein, Keck Garrett submits that Nextel’s assign-
ment of the Falcon Project to another company repudiated
the 2003 blanket purchase order. Because we hold that Nextel
did not breach the 2003 blanket purchase order, there is no
need to examine whether Nextel’s alleged “anticipatory
repudiation” excused Keck Garrett’s performance.
18 No. 07-1350
B.
Next, we must address Keck Garrett’s contention that it
is entitled to recovery in quantum meruit. Keck Garrett
submits that, even if it may not recover under the 2003
blanket purchase order, it is entitled to some measure of the
value of the work it performed for Nextel under a quasi-
contract theory of recovery. We cannot accept this argu-
ment.
We note first that Keck Garrett waived its claim for
recovery in quantum meruit. Republic Tobacco Co. v. N. Atl.
Trading Co., 381 F.3d 717, 728 (7th Cir. 2004). Nextel specifi-
cally requested summary judgment on the quantum meruit
claim. Keck Garrett, however, did not defend that claim in
its reply to Nextel’s motion for summary judgment. By
failing to present its argument to the district court, Keck
Garrett abandoned its claim. See id. As we have held:
It is axiomatic that issues and arguments which were
not raised before the district court cannot be raised
for the first time on appeal . . . . The rule is essential
in order that parties may have the opportunity to offer
all the evidence they believe relevant to the issues . . .
[and] in order that litigants may not be surprised on
appeal by final decision there of issues upon which
they have had no opportunity to introduce evidence.
To reverse the district court on grounds not presented
to it would undermine the essential function of the
district court. This rule is not meant to be harsh, overly
formalistic, or to punish careless litigators. Rather,
the requirement that parties may raise on appeal only
issues which have been presented to the district court
maintains the efficiency, fairness, and integrity of the
judicial system for all parties.
No. 07-1350 19
Boyers v. Texaco Ref. & Mktg., Inc., 848 F.2d 809, 811-12 (7th
Cir. 1988) (second alteration in original) (citations and
quotation marks omitted). Therefore, Keck Garrett waived
the argument on appeal. Id.
Moreover, Keck Garrett seeks through this diversity
action to recover in quantum meruit a sum that it could
not recover under its contract with Nextel. Resolution of
the contract claim, however, disposes of Keck Garrett’s
resort to quantum meruit or unjust enrichment. Murray v.
ABT Assocs., Inc., 18 F.3d 1376, 1379 (7th Cir. 1994). Illinois
law does not permit a party to recover on a theory of quasi-
contract when an actual contract governs the parties’
relations on that issue. Illinois ex rel. Hartigan v. E & E
Hauling, Inc., 607 N.E.2d 165, 177 (Ill. 1992); see also Murray,
18 F.3d at 1379. Keck Garrett stipulated that the 2003
blanket purchase order was a contract that governed its
relationship with Nextel. Therefore, the district court
properly granted summary judgment to Nextel on Keck
Garrett’s quantum meruit claim. Hartigan, 607 N.E.2d
at 177.
C.
Finally, we turn to Keck Garrett’s motion in this court
for sanctions against Nextel. Keck Garrett submits that
Nextel disclosed confidential information to the district
court in violation of the confidentiality requirements of
this court’s Rule 33 settlement conference. Keck Garrett
therefore requests that we enforce our rules regarding
settlement proceedings by sanctioning Nextel. Keck Garrett
specifically requests that we strike Nextel’s pending mo-
tion for attorneys’ fees.
20 No. 07-1350
Nextel submits, however, that the information was not
obtained during a settlement conference. The statements
that were revealed to the district court were made orig-
inally four days after the conference, without a settlement
attorney present and during the course of the parties’
discussion of a joint statement. Nextel submits that Keck
Garrett therefore had no expectation of privacy in the
information and that revealing it did not violate the rules
of the settlement conference.
To the extent that Keck Garrett is attempting to appeal
this matter, we are without jurisdiction. Keck Garrett
filed a motion for sanctions in the district court, but,
insofar as the record before us indicates, the district court
still has the matter under advisement. A district court’s
decision on a post-judgment Rule 11 motion is a sepa-
rate judgment that requires the filing of a separate notice
of appeal. Leahy v. Bd. of Trs., 912 F.2d 917, 923 (7th Cir.
1990); see also Cassidy v. Cassidy, 950 F.2d 381, 382 (7th Cir.
1991) (holding that decisions on the merits and post-
judgment decisions on Rule 11 sanctions are separately
appealable; until the district court “wraps up” the post-
judgment Rule 11 issue, “there is no final and appealable
decision”). No such notice of appeal has been filed; nor,
as yet, is there a final and appealable decision. Therefore,
we lack jurisdiction to hear this issue as an appeal. See
Leahy, 912 F.2d at 923; Cassidy, 950 F.2d at 381.
To the extent that Keck Garrett is asking that we sanc-
tion Nextel, we believe that a ruling on such a request is
premature. The confidentiality of settlement proceedings
in this court is well-established. Estate of Sims ex rel. Sims
v. County of Bureau, 506 F.3d 509, 517 (7th Cir. 2007); In re
Young, 253 F.3d 926 (7th Cir. 2001). There is no question
that we have the authority—and the responsibility—to
No. 07-1350 21
protect the integrity of Rule 33 settlement conferences.
See Sims, 506 F.3d at 517; Young, 253 F.3d at 927. Although
Rule 11 of the Federal Rules of Civil Procedure is not
applicable ex proprio vigore in this court, Sparks v. NLRB,
835 F.2d 705, 707 (7th Cir. 1987), we certainly have the
authority to discipline an attorney for misbehavior in
relation to a Rule 33 settlement conference. Young, 253
F.3d at 927. A pleading that contains information in vio-
lation of settlement conference confidentiality must be
withdrawn. Serious violations of a Rule 33 conference’s
rules or orders may be subject to additional sanctions. Id.
In most instances, the misbehavior in the appellate
settlement process would be the exclusive responsibility of
this court. Here, however, Keck Garrett’s complaint is
that Nextel violated the rule of confidentiality by a dis-
closure in a proceeding in the district court. Under these
circumstances, the district court certainly also has the
authority to address the accusation. Moreover, there are
issues of fact that require resolution, a task within the
special competence of the district court, but susceptible to
resolution in this court only by the appointment of a
special master. Under these circumstances, prudential
concerns counsel that we defer adjudication of this motion
until the parties inform us of the action of the district court.
22 No. 07-1350
Conclusion
Accordingly, we affirm the judgment of the district
court. The motion for sanctions shall be denied without
prejudice to its renewal after the district court has ruled
on the motion for sanctions now pending before it. Nextel
may recover the costs of this appeal.
JUDGMENT AFFIRMED
MOTION FOR SANCTIONS DENIED WITHOUT PREJUDICE
USCA-02-C-0072—2-21-08