India Breweries, Inc. v. Miller Brewing Company

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4109
INDIA BREWERIES, INC.,
Plaintiff-Appellant,
v.
MILLER BREWING COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 467—Charles N. Clevert, Jr., Chief Judge.
ARGUED MAY 21, 2010—DECIDED JULY 21, 2010
Before EASTERBROOK, Chief Judge, and BAUER and
TINDER, Circuit Judges.
TINDER, Circuit Judge. India Breweries, Inc. (“IBI”) and
Miller Brewing Co. (“Miller”) entered into a license
agreement that would have permitted IBI to brew and
distribute three Miller-branded beers in India. Miller
executives visited India to inspect two breweries IBI
wanted to use to brew the beer and rejected them as
unsanitary and lacking in equipment. Miller refused to

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2 No. 08-4109
return to India to inspect more breweries until IBI
assured it that the breweries had the minimum equip-
ment necessary to brew Miller beer. IBI brought suit for
breach of contract, alleging that Miller had a contractual
duty to inspect any brewery it proffered and failed to
act in good faith in refusing to make inspections. Miller
counterclaimed, alleging that IBI fraudulently induced
it into entering the license agreement and misrepre-
sented its financial status. The district court granted
summary judgment to Miller on IBI’s claims, and IBI
appealed. Miller (belatedly) agreed to dismiss its coun-
terclaims with prejudice, giving us jurisdiction over the
case, and we now affirm.
I. Background
IBI is a Canadian company that acts as a “virtual
brewer”—it acquires rights to various beers and enlists
or partners with other entities to actually brew and dis-
tribute the beers. In 1997, IBI entered into a joint venture
with Indian brewery and distillery Mohan Meakin,
Ltd. (“Mohan”) to brew and distribute beer in India.
The joint venture company was known as International
Breweries Pvt., Ltd., or “IBP,” and was incorporated in
India.
In 1998, IBI approached Miller, the manufacturer of
popular beers such as Miller Genuine Draft, Miller Lite,
and Milwaukee’s Best and at that time a Wisconsin-
based company, to seek the rights to brew Miller beer
as part of the IBP joint venture. Miller provided IBI with
a list of the minimum equipment necessary for the pro-

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No. 08-4109 3
duction of its beers, and IBI informed Miller that it and
Mohan planned to upgrade Mohan’s brewery in Delhi,
India, to meet Miller’s specifications. After some
lengthy back and forth, Miller and IBI entered into a
formal license agreement on September 22, 1999.
IBI initially proposed manufacturing Miller beer at
two Mohan breweries, one in Delhi and one in Madras
(Chennai). Miller sent a team of executives, headed by
Giorgio Sega, its Director of International Operations, to
inspect the two breweries in October 1999, pursuant to
paragraph 2.5 of the license agreement, the pertinent
language of which reads:
With respect to each brewery where a Licensed Beer
is to be brewed, IBI (after consultation with and in-
spection by Miller) will conduct (or cause to be con-
ducted) commercial scale test brews of each Recipe
that is to be used at that brewery. Prior to beginning
commercial brewing of each Licensed Beer at the
brewery in the Territory, IBI will obtain Miller’s
written approval of the brewery and the Licensed
Beer(s) made at that brewery. As defined herein,
“commercial brewing” shall mean production of
Licensed Beer(s) for sale. Where brewing is to be
performed by a sublicensee or a contract brewer, no
such sublicensed or contract brewing-brewing [sic]
may take place unless Miller has approved in writing
the brewer, the brewery, the confidentiality protec-
tion relating thereto, and the terms of the sub-
licensing/contract brewing relationship. . . .
Sega concluded that both the Delhi and Madras brew-
eries were “rudimentary in technology and lacking mini-

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4 No. 08-4109
mum standards of process; quality assurance; basic food
plant hygiene; and Good Manufacturing Practices.” He
advised IBI that it would probably take seven to ten
months and significant capital outlays to upgrade the
Delhi and Madras breweries. IBI ultimately concluded
that rehabilitating the breweries would be impracticable,
and began exploring other brewing options.
On January 11, 2000, IBI wrote to Miller that it was
“seriously investigating the possibility of upgrading”
another Mohan-owned brewery, Artos, and was “con-
sidering” an unnamed brewery in “Western India.” IBI
provided Miller with some of Artos’s technical specifica-
tions at that time, and informed Miller that it would be
in touch to arrange an inspection visit “[o]nce we have
completed the purchase agreement.”
No purchase agreement for Artos was ever signed, and
there is no evidence indicating that IBI formally
requested an inspection of the facility, though it contends
that it made several oral requests to that effect. Instead,
on March 1, 2000, IBI told Miller that it had com-
pleted a purchase agreement for a non-Mohan brewery,
Rajasthan, the brewery in western India to which it
had previously alluded. (IBI maintains that it shifted
its focus to Rajasthan at Miller’s request.) In the March 1
e-mail to Miller, IBI emphasized that Rajasthan was
“being purchased specifically for producing the Miller
brands [so] it is important that you approve the plant
before we proceed any further.” Miller responded by
forwarding IBI information about its brewing standards
and the minimum equipment that would be required to

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No. 08-4109 5
meet them. In that response, Sega also explained that he
would schedule a visit to the Rajasthan brewery only
after receiving IBI’s “assurance that systems; equipment;
hygiene; process and packaged product procedures and
specifications can be met at your prospective brewer, and
that there is a total commitment to purchase and install
what is missing.” IBI told Miller it would forward the
equipment guidelines to Rajasthan’s brewmaster and
would wait for him to make an assessment of the
brewery before making arrangements for another Miller
inspection.
Six months later, in September 2000, IBI was still having
problems finalizing the Rajasthan deal. It wrote to Miller
and explained that it was now trying to enter into a
contract brewing arrangement rather than a purchase
agreement with Rajasthan. Under such an arrangement,
Rajasthan would remain independent and would brew
beer for IBI (or IBP) pursuant to a negotiated contract. IBI
noted that Rajasthan was “the best brewery in South
Asia according to Ernst & Young,” but nonetheless ex-
pressed some uncertainty as to whether it could meet
Miller’s standards. To that end, IBI further informed
Miller that it was “in discussion with several other brew-
eries in India (in Himachal Pradesh, Haryana, and
Karnatka states) for contract brewing or purchase
deals.” It did not provide further details about those
other breweries—such as names or technical specifica-
tions—at that time.
By November 2000, IBI had not yet entered into a
formal contract to purchase a brewery or otherwise

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6 No. 08-4109
produce beer in India. But IBP (the IBI-Mohan joint ven-
ture) had entered into two memoranda of understanding
(“MOUs”), one with Rajasthan and another with one of
the “other breweries” it referenced in September, Him
Neel, pursuant to which it pledged to work in good
faith toward purchasing assets from those breweries.
Both MOUs also envisaged contract brewing between
IBP and the respective breweries, though the Rajasthan
arrangement was conditioned on the brewmaster’s ap-
proval and was never executed, and the Him Neel
MOU was by its terms “neither a commitment nor
binding.” Neither MOU contemplated the terms of these
possible contract brewing relationships. Nevertheless,
on November 7, IBI told Miller that it had entered agree-
ments with both Rajasthan and Him Neel for the im-
mediate production of Miller beer. Miller responded by
asking IBI for copies of the contracts, as well as equipment
lists for Rajasthan and Him Neel. It also reminded IBI
that an inspection of the breweries would be contingent
upon the “presence and operation of process equipment
required for the production of Miller brands and the
ability to meet Miller’s quality standards.”
Despite experiencing difficulty obtaining detailed
equipment lists for breweries it did not own, IBI quickly
procured and sent to Miller some technical specifica-
tions for the Rajasthan brewery. Miller reviewed the
specifications and concluded that Rajasthan lacked neces-
sary equipment. On November 28, Miller told IBI that
Rajasthan was an unacceptable facility. Sega reiterated
this assessment in a December 12 letter he sent to
another Miller executive, William Berg. In that letter, Sega

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No. 08-4109 7
High gravity brewing is a process by which beer is brewed at 1
a high alcohol concentration and diluted down to the desired
strength near the end of production. It allows breweries to brew
more beer without increasing the physical capacity of their
plants. The parties dispute whether India permitted high
gravity brewing, and IBI (who contends that it did not) chal-
lenges Miller’s alleged reliance on breweries’ lack of high
gravity production equipment in deeming the proffered
breweries unacceptable. (The record shows that Miller told
IBI that brewing at standard gravity in India would not be a
problem.) We need not resolve this dispute, because Miller
provided adequate alternative grounds for declining to
inspect the breweries.
stated that Rajasthan lacked “basic equipment we would
require for high gravity brewing and processing of any1
and all of our brands, as well as basic equipment we’d
require to meet our packaging standards. Since this
equipment is lacking at Rajasthan, I see no benefit i[n]
visiting the brewery at this time. No equipment list is
available for the Him Neel brewery, so there is no sense
in visiting that plant either.”
IBI eventually managed to secure the Him Neel equip-
ment list and provided it to Miller on December 22, 2000.
Though Him Neel was a modern, European-designed
brewery, it lacked a centrifuge, which is not necessary
for beer production in general but is critical to Miller’s
proprietary production process. Sega sent another in-
ternal letter to Berg, in which he declared Him Neel
unacceptable and noted that it lacked “basic equipment
we would require for high gravity brewing and pro-

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8 No. 08-4109
cessing of our brands, as well as basic equipment we’d
require to meet and to monitor compliance with our
process[,] microbial and packaging standards.” Miller
relayed this assessment to IBI on January 5, 2001, several
days after the Miller-drafted license agreement auto-
matically terminated for want of IBI’s ownership of a
brewery or demonstration of a contract brewing agree-
ment. See Agreement ¶ 5.1(g). (Miller told IBI that it
would be willing to extend the termination deadline if
IBI agreed to meet four conditions, but IBI declined the
offer.)
IBI filed a breach of contract action against Miller in the
Eastern District of Wisconsin in April 2005, properly
invoking diversity jurisdiction. It contended that para-
graph 2.5 of the license agreement imposed upon Miller
a duty to physically inspect any brewery it proffered, and
that in failing to do so Miller acted in bad faith and pre-
vented it from upholding its own end of the bargain
and realizing significant profits. It also raised a second
breach of contract claim that it later abandoned; that
claim is irrelevant here.
Miller responded by filing counterclaims against IBI,
alleging that IBI fraudulently induced it to enter into
the license agreement in the first place and negligently
misrepresented its assets and financial standing. Miller
also moved for summary judgment on IBI’s claims. The
district court granted Miler’s motion. It concluded that
paragraph 1.2 of the license agreement established a
distinction between two types of breweries that carried
through the remainder of the forty-page agreement: those

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No. 08-4109 9
owned by IBI, IBP, a wholly owned subsidiary of IBP, or
Mohan, and those owned by anyone else. Breweries in
the first group were subject to a reasonableness require-
ment, the district court concluded; that is, Miller could
only reject them for good reason. The latter group, to
which both Rajasthan and Him Neel belonged, could be
rejected on any grounds, regardless how unreasonable.
The district court determined that Miller properly
rejected Him Neel and Rajasthan, and that IBI had aban-
doned its pursuit of Artos. It granted summary judg-
ment to Miller, but not before correctly noting that
Miller’s counterclaims remained pending.
After the district court ruled in its favor on IBI’s claims,
Miller moved for summary judgment on its counter-
claims. The district court determined that material issues
of fact remained and accordingly denied Miller’s motion.
Later, Miller and IBI entered into a stipulation under
which they agreed to “the dismissal of Miller’s Counter-
claims without prejudice pursuant to Fed. R. Civ. P.
41(a)(1)(A)(ii).” IBI then filed this appeal.
II. Discussion
A. Appellate Jurisdiction
Before we may proceed to the merits of IBI’s appeal,
we must address the threshold issue of our jurisdiction
to hear the case. Nat’l Inspection & Repairs, Inc. v. George S.
May Int’l Co., 600 F.3d 878, 883 (7th Cir. 2010); Horwitz
v. Alloy Auto. Co., 957 F.2d 1431, 1435 (7th Cir. 1992) (“It
is our threshold and independent obligation to make

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10 No. 08-4109
that determination . . . .”). For this court to have juris-
diction on appeal under 28 U.S.C. § 1291, the judgment
of the district court below must be final. Nat’l Inspection
& Repairs, 600 F.3d at 883. An order is final for purposes
of § 1291 if it “ends the litigation on the merits and leaves
nothing for the [district] court to do but execute the
judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945);
BKCAP, LLC v. CAPTEC Franchise Trust 2000-1, 572
F.3d 353, 357 (7th Cir. 2009).
In its stipulation with IBI, Miller agreed not to refile
its counterclaims, “except in the event IBI successfully
appeals the dismissal of IBI’s Claims, in part or in whole,”
and IBI agreed to waive “any affirmative defense that
might potentially arise as a direct or indirect result of
the stipulated dismissal.” The parties further agreed that
if the district court’s decision were reversed and the
case remanded, Miller would have sixty days in which
to refile the counterclaims. IBI’s acquiescence to the
potential resurrection of these claims perhaps kept the
peace but destroyed finality. “[T]he dismissal of one
claim or theory without prejudice, with a right to
reactivate that claim after an appeal on the remaining
theories, makes the judgment non-final.” Nat’l Inspection &
Repairs, 600 F.3d at 883 (quoting First Health Group Corp. v.
BCE Emergis Corp., 269 F.3d 800, 801 (7th Cir. 2001)). This
is the case no matter which party holds the revivable
claims. If the parties’ dispute has not been fully resolved
by the district court, the “remaining elements are apt
to come back on a second appeal,” and the decision
cannot be considered final. First Health, 269 F.3d at 801.

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No. 08-4109 11
Parties cannot stipulate around § 1291’s finality require-
ment. Union Oil Co. of Cal. v. John Brown E&C, 121 F.3d
305, 309 (7th Cir. 1999). They should instead direct their
energies to fully extinguishing all lingering claims before
they attempt to invoke the jurisdiction of this court, for
failure to hew to the finality requirement frequently
results in the dismissal of appeals. See, e.g., Mercado v. Dart,
604 F.3d 360 (7th Cir. 2010); Kerr-McGee Chem. Corp. v.
Leftron Iron & Metal Co., 570 F.3d 856 (7th Cir. 2009). The
finality rule is only rarely a “Swiss cheese.” Chang v.
Baxter Healthcare Corp., 599 F.3d 728, 732 (7th Cir. 2010).
Here, however, Miller managed to wedge through one
of its narrowest holes by unequivocally dismissing its
counterclaims with prejudice after we pressed the
matter at oral argument. See Nat’l Inspection & Repairs,
600 F.3d at 883-84; JTC Petroleum Co. v. Piasa Motor
Fuels, Inc., 190 F.3d 775, 776-77 (7th Cir. 1999). We conse-
quently have jurisdiction over this appeal and ac-
cordingly proceed to the merits.
B. Breach of Contract
The district court granted Miller summary judgment on
IBI’s breach of contract claim. We review that grant
de novo, e.g., Egonmwan v. Cook County Sheriff’s Dep’t, 602
F.3d 845, 849 (7th Cir. 2010), applying the substantive
law of the state of Wisconsin, see Erie R.R. v. Tompkins, 304
U.S. 64, 78 (1938); Schindler v. Seiler, 474 F.3d 1008, 1010
(7th Cir. 2007). We affirm if, after viewing all facts in the
light most favorable to IBI, the non-movant, and drawing
all reasonable inferences in its favor, we find that no

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12 No. 08-4109
genuine issue of material fact exists and Miller is
entitled to judgment as a matter of law. Camp v. TNT
Logistics Corp., 553 F.3d 502, 505 (7th Cir. 2009); see also
Fed. R. Civ. P. 56(c). That is, summary judgment is war-
ranted if there are no genuine issues of material fact
with respect to the interpretation of the license agree-
ment; ambiguity with respect to a material matter pre-
cludes summary judgment. Cherry v. Auburn Gear, Inc.,
441 F.3d 476, 481 (7th Cir. 2006).
Under Wisconsin law, contractual provisions are con-
sidered ambiguous when they may reasonably be taken
in more than one sense. Sipple v. Zimmerman, 159 N.W.2d
706, 713 (Wis. 1968). IBI argues that paragraph 2.5, repro-
duced in pertinent part above, meets this definition.
Specifically, IBI contends that its interpretation of para-
graph 2.5 is equally as reasonable as that advanced by
Miller and embraced by the district court, and that it is
for a jury to decide which interpretation the parties
intended. The problem with this argument is that IBI’s
interpretation of paragraph 2.5—the sole provision of the
forty-page license agreement about which it makes any
substantive contention—is patently unreasonable.
The first sentence of paragraph 2.5, on which IBI hangs
its hat, states, “With respect to each brewery where a
Licensed Beer is to be brewed, IBI (after consultation
with and inspection by Miller) will conduct (or cause to
be conducted) commercial scale test brews of each Recipe
that is to be used at that brewery.” IBI takes this to
mean that Miller had a duty to “inspect any brewery at
which IBI wants to brew a Licensed Beer(s).” Appellant’s

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No. 08-4109 13
Br. 34. “Any” is the critical word, as IBI contends that the
“only constraint in the first sentence is which of the
Licensed Beers IBI wanted to brew and where.” Id. Thus,
from IBI’s perspective, Miller was contractually required
to travel to any brewery IBI selected, even if IBI and
Miller both knew it was lacking fundamental equipment
that would preclude its approval and necessitate
future inspections; Miller could not review on paper the
brewery’s specifications to ensure that it could satisfy
the minimal production requirements before sending
employees halfway around the world to physically exam-
ine the facility.
“The presumption in commercial contracts is that the
parties were trying to accomplish something rational.
Common sense is as much a part of contract interpreta-
tion as is the dictionary or arsenal of canons.” Dispatch
Automation, Inc. v. Richards, 280 F.3d 1116, 1120 (7th Cir.
2002) (quotation omitted); see also Bitker & Gerner Co. v.
Green Inv. Co., 76 N.W.2d 549, 552 (Wis. 1956) (“So far as
reasonably practicable it [a contract] should be given
a construction which will make it a rational business
instrument and will effectuate what appears to have been
the intention of the parties.”). A requirement that Miller
fly to India to inspect a brewery it knows would fail
the inspection is not rational in any sense of the term,
least of all commercially. It would be particularly irra-
tional for IBI, a fledgling business that was contractually
obligated to bear Miller’s travel expenses. See Agree-
ment ¶ 2.4(c). Contractual language “is to be interpreted
consistent with what a reasonable person would under-
stand the words to mean under the circumstances.”

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14 No. 08-4109
Seitzinger v. Cmty. Hosp. Network, 2004 WI 28, ¶ 22, 270
Wis. 2d 1, 15, 676 N.W.2d 426, 433. The only way a rea-
sonable person, or a reasonable jury, could understand
the license agreement in the way IBI wishes us to is to
construe “inspection” as nothing more than a formalistic
rubber stamp. That way, it would make sense for IBI to
have Miller conduct an inspection as soon as it located a
brewery, and would be problematic for Miller to refuse
to do so because the brewery lacked equipment neces-
sary to brew its beer.
But reading “inspection” as a rubber-stamp requirement
to be applied to any brewery IBI rustled up does not
make sense under the circumstances or in the broader
context of the agreement. In Wisconsin,“[i]t is a cardinal
rule of contract construction that the meaning of a par-
ticular provision in a contract is to be ascertained with
reference to the contract as a whole.” Crown Life Ins. Co. v.
LaBonte, 330 N.W.2d 201, 206 (Wis. 1983). And the agree-
ment here unambiguously permits Miller to reject on
any grounds any brewer or brewery that is not closely
affiliated with IBI; pursuant to paragraph 1.2, “nothing
herein requires Miller to approve a sublicensee other
than IBP, or a contract brewer other than IBP, an IBP
wholly-owned subsidiary, and/or Mohan.” If Miller can
unilaterally disapprove a brewery, and can prevent any
sublicensed or contract brewing from taking place until
it “has approved in writing the brewer, the brewery, the
confidentiality protection relating thereto, and the terms
of the sublicensing/contract brewing relationship,” Agree-
ment ¶ 2.5, it makes no sense to require it to inspect

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No. 08-4109 15
We disregard IBI’s argument about Artos, which is forfeited 2
because IBI failed to properly raise it before the district court.
See Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d
718, 720 (7th Cir. 2008) (“[I]t is axiomatic that an issue not first
presented to the district court may not be raised before the
appellate court as a ground for reversal.” (quoting Christmas
v. Sanders, 759 F.2d 1284, 1291 (7th Cir. 1985))). IBI claims that
it “raised Artos” at various junctures before the district court,
Reply Br. 18, but mentioning a fact in one’s answer to counter-
claims, as part of a 200+ paragraph Proposed Findings of Fact,
and in passing in a declaration does not amount to articulating
a substantive argument for the district court’s meaningful
consideration, see Witte v. Wis. Dep’t of Corr., 434 F.3d 1031,
1038 (7th Cir. 2006) (“By failing to raise [an argument] in his
brief opposing summary judgment, he lost the opportunity to
urge it in both the district court and this court.” (emphasis
added)).
proffered breweries that will assuredly—and objec-
tively—come up short.
Moreover, both Rajasthan and Him Neel were non-IBI-2
affiliated breweries with which IBP sought contract
brewing arrangements. They were therefore subject to
the restrictions of the fourth sentence of paragraph 2.5,
which by its plain terms required IBI to get Miller’s
express written approval of the contract brewing arrange-
ment before conducting any brewing: “no such sub-
licensed or contract brewing-brewing [sic] may take
place unless Miller has approved in writing . . . the terms
of the sublicensing/contract brewing relationship.” Agree-
ment ¶ 2.5 (emphasis added). The agreement defined
“commercial brewing” in the previous sentence, so the

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16 No. 08-4109
lack of specification in this sentence is indicative of the
parties’ intent to restrict all varieties of sublicensed and
contract brewing, including the pre-commercial test
brews that had to be preceded by inspection as well. Cf.
Hunzinger Constr. Co. v. Granite Res. Corp., 538 N.W.2d
804, 809 (Wis. Ct. App. 1995) (“Indeed, the fact that reim-
bursement for attorneys’ fees is not mentioned in the
delay-in-delivery clause, even though it is provided for
specifically in the immediately preceding clause, is
cogent evidence that attorneys’ fees reimbursement was
not intended.”). It is undisputed that IBI did not furnish
Miller with any details about its relationships with
Rajasthan or Him Neel, despite Miller’s written request,
until discovery in this case. Miller was therefore unable
to evaluate and approve in writing the terms of those
relationships and thus had an independent basis on
which to reject both breweries, a basis provided by IBI.
IBI’s argument that Miller’s failure to inspect its brew-
eries impeded its ability to prevent the agreement from
automatically terminating consequently lacks merit.
IBI’s alternative argument, that Miller breached the
implied duty of good faith by failing to inspect Him
Neel and Rajasthan, fares no better. It is true that under
Wisconsin law a duty of good faith is implied in every
contract, Wis. Alumni Research Found. v. Xenon Pharms., Inc.,
591 F.3d 876, 885 n.5 (7th Cir. 2010), and “a party may
be liable for breach of the implied contractual covenant
of good faith even though all the terms of the written
agreement may have been fulfilled,” Foseid v. State Bank
of Cross Plains, 541 N.W.2d 203, 212 (Wis. Ct. App. 1995).
But to breach the duty of good faith, Miller would have

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No. 08-4109 17
had to act arbitrarily and unreasonably in declining to
inspect Him Neel and Rajasthan. See Ekstrom v. State, 172
N.W.2d 660, 661 (Wis. 1969). Miller did no such thing;
it objectively reviewed the specifications for the brew-
eries and informed IBI that they could not meet its stan-
dards before declining to visit them. That is the antithesis
of arbitrary and capricious behavior. It matters not that
some of the absent equipment was used exclusively for
high gravity brewing; other absent equipment was used
for packaging and assuring the quality of Miller beer
brewed by any means. Miller’s interactions with its other
licensees are equally irrelevant. The terms of this license
agreement are at issue here, not the terms of any others
Miller may have negotiated.
III. Conclusion
The agreement between IBI and Miller is not ambiguous
as to Miller’s duty to inspect breweries. Summary judg-
ment was appropriately granted in Miller’s favor on IBI’s
breach of contract and good faith claims. We therefore
AFFIRM.
7-21-10

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