Rcba Nutraceuticals , LLC v. Proa Mpac Holdings , Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-3171
RCBA NUTRACEUTICALS , LLC,
Plaintiff-Appellant,
v.
PROA MPAC HOLDINGS , I NC .,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:23-cv-00305-WED — William E. Duffin, Magistrate Judge.
____________________
A RGUED M AY 29, 2024 — DECIDED J ULY 26, 2024
____________________
Before EASTERBROOK, BRENNAN , and S CUDDER , Circuit
Judges.
BRENNAN , Circuit Judge. RCBA Nutraceuticals, LLC
contracted for the manufacture of zipper pouches to hold its
protein powder. The pouches were made in Wisconsin by
ProAmpac Holdings, Inc., which shipped them to companies
in New York and Texas that filled them with RCBA’s prod-
ucts. But the pouches turned out to be defective, so RCBA
sued. Because RCBA’s claims were barred by applicable state

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2 No. 23-3171
statute of limitations or precluded for other reasons, we af-
firm the district court’s dismissal of RCBA’s suit.
I
We relay the facts as alleged in the complaint by the plain-
tiff, RCBA, a Florida nutritional supplements company.
RCBA contracted with Western Packaging, Inc., a Texas cor-
poration, for the manufacture of plastic zipper pouches to
hold its protein powder. Western had PolyFirst Packaging,
Inc., a Wisconsin corporation that operates a manufacturing
facility in Wisconsin and shares common ownership with
Western, manufacture the pouches. Later ProAmpac, a Dela-
ware corporation, acquired PolyFirst and continued manufac-
turing RCBA’s pouches. ProAmpac used PolyFirst’s facilities
and equipment in Wisconsin.
Once manufactured in Wisconsin, the pouches were
shipped to companies in New York and Texas. Those compa-
nies filled orders and shipped products to RCBA’s distribu-
tors and customers. Shortly after ProAmpac acquired
PolyFirst, RCBA learned that the pouches were defective.
They began receiving complaints that the seams on the
pouches split, and RCBA’s protein powder spilled out.
So RCBA sued ProAmpac in federal court in Wisconsin,
bringing various contract and tort claims. The contract claims
alleged breach of implied warranty of fitness for particular
purpose, breach of implied warranty of merchantability, and
breach of contract. The tort claims alleged negligence, civil
conspiracy, and fraudulent misrepresentations.1
1 Before this action, RCBA sued in Florida state court, but that suit
was dismissed for lack of personal jurisdiction. See ProAmpac Holdings, Inc.

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No. 23-3171 3
ProAmpac moved to dismiss RCBA’s complaint on
various grounds. As relevant to the district court’s ultimate
ruling, ProAmpac argued that all RCBA’s claims were time-
barred and that the tort claims were precluded by the eco-
nomic loss doctrine.
The district court granted ProAmpac’s motion and dis-
missed the case with prejudice. The court concluded that all
six of RCBA’s claims were “foreign” causes of action under
Wisconsin’s borrowing statute, WIS . S TAT. § 893.07. New
York’s and Texas’s statutes of limitations applied to the con-
tract claims because the “final significant event” giving rise to
those claims—the failure of the pouches—occurred where the
fillers were located, in New York and Texas. The court also
found that Florida’s statute of limitations applied to the neg-
ligence claim. Applying New York’s and Texas’s limitations
period to the contract claims and Florida’s limitations period
to the negligence claim, the court found those claims time-
barred. It was unclear when the remaining civil conspiracy
and fraudulent misrepresentation claims accrued, but the
court found them precluded by the economic loss doctrine.
Once the district court entered judgment, RCBA moved to
reconsider the dismissal of its negligence and contract claims.
First, RCBA contended it was a manifest error of law not to
apply equitable tolling, equitable estoppel, and/or the savings
statutes of the foreign jurisdictions whose statute of limita-
tions were borrowed. Second, RCBA argued that the applica-
ble statute of limitations for the contract claims was Florida’s,
not New York’s or Texas’s, so those claims were not time
v. RCBA Nutraceuticals, LLC, __ So.3d __, __, No. 5D21-2019, 2022 WL
4002175 (Fla. App. 2022).

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4 No. 23-3171
barred. RCBA raised the equitable arguments for the first time
in the motion to reconsider; it did not make any of these con-
tentions in response to ProAmpac’s motion to dismiss the
complaint. The district court denied RCBA’s motion to recon-
sider, ruling that RCBA had waived its equitable arguments
and that its other contentions failed on the merits.
II
RCBA appeals the district court’s dismissal of its com-
plaint and the denial of its motion to reconsider. We review
the former de novo, see Taizhou Yuanda Inv. Grp. Co. v. Z Out-
door Living, LLC, 44 F.4th 629, 632 (7th Cir. 2022), and the latter
for abuse of discretion, see O’Brien v. Village of Lincolnshire, 955
F.3d 616, 628 (7th Cir. 2020).
Subject matter jurisdiction in this case is based on diversity
of citizenship. Under Erie Railroad Co. v. Tompkins, 304 U.S. 64,
78 (1938), state substantive law applies, including the choice-
of-law rules of the forum state. See Klaxon Co. v. Stentor Elec.
Mfg. Co., 313 U.S. 487, 496 (1941). Here, that state is Wisconsin.
“We must apply state law as we believe the highest court of
the state would apply it if the case were now before that tri-
bunal rather than before our court.” Green Plains Trade Grp.,
LLC v. Archer Daniels Midland Co., 90 F.4th 919, 927 (7th Cir.
2024) (citing Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198,
203 (1956) and Todd v. Societe Bic, S.A., 21 F.3d 1402, 1405 (7th
Cir. 1994) (en banc)).
III
A
RCBA’s challenge to the dismissal of its complaint re-
quires us to interpret Wisconsin’s borrowing statute. That
statute provides the rule for adopting limitations periods

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No. 23-3171 5
from other states when the cause of action arose in that other
state:
(1) If an action is brought in this state on a for-
eign cause of action and the foreign period of
limitation which applies has expired, no action
may be maintained in this state.
(2) If an action is brought in this state on a for-
eign cause of action and the foreign period of
limitation which applies to that action has not
expired, but the applicable Wisconsin period of
limitation has expired, no action may be main-
tained in this state.
WIS . S TAT. § 893.07.
This statute requires application of the shortest limitations
period as between Wisconsin and another state whenever a
cause of action is “foreign.” See, e.g., Paynter v. ProAssurance
Wis. Ins. Co., 929 N.W.2d 113, 116 & n.2, 120–25 (Wis. 2019)
(discussing Wisconsin’s borrowing statute, albeit in tort con-
text); Abraham v. Gen. Cas. Co. of Wis., 576 N.W.2d 46, 48 (Wis.
1998). This removes an incentive plaintiffs might have to fo-
rum shop for a more favorable limitations period. See Guertin
v. Harbour Assurance Co. of Berm., Ltd., 415 N.W.2d 831, 835
(Wis. 1987). It also eliminates the need for complicated con-
flict-of-law analysis when deciding whether a cause of action
is timely. See id. at 834.
A contract cause of action is “foreign” under Wisconsin
law if “the final significant event giving rise” to the cause of
action occurred outside Wisconsin. Abraham, 576 N.W.2d at
48. In Abraham, which first extended the application
of § 893.07 to contract claims, the Wisconsin Supreme Court

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6 No. 23-3171
adopted the “final significant event” test because it was “per-
suaded by the reasoning employed in” Terranova v. Terranova,
883 F. Supp. 1273 (W.D. Wis. 1995). Abraham, 576 N.W.2d at
53. In Terranova, the federal district court considered how to
apply § 893.07 in a breach of contract suit between California
plaintiffs and Wisconsin defendants. See 883 F. Supp. at 1275.
The plaintiffs demanded indemnification from the defend-
ants, who rejected the request. Id. at 1276. The district court
determined that the alleged breach occurred in Wisconsin
where the defendants rejected the demand for indemnifica-
tion. Id. at 1281. The claim was therefore not a foreign cause
of action under § 893.07 and was subject to Wisconsin’s stat-
ute of limitations. Id.
Relying on Terranova, the Wisconsin Supreme Court con-
cluded much the same in Abraham. There, a motorist sued an
insurance company for benefits. See Abraham, 576 N.W.2d at
48. The company’s refusal to pay occurred in Wisconsin, so
the court ruled the claim was not foreign. See id. at 53. The
court reasoned that the final significant event in a contract
claim is the breach, noting that the parallel event in tort ac-
tions is the “place of injury” because a “tort is not complete
till the victim is injured.” See id. at 53–54. In Abraham the Wis-
consin high court rejected the tort “place of injury” test for
contract claims. Id. at 52–53. It highlighted this court’s presci-
ent caution that “‘in the case of a dispute over a contract,
whose “location” is not easily pinned to a particular state[,]’”
it is difficult to determine where the injury occurred. Id. at 51
(citing Johnson v. Deltadynamics, Inc., 813 F.2d 944, 946 (7th Cir.
1987)). The court also rejected another theory, the “significant
contacts” or “center of gravity” test. Id. at 51–53. Under that
test, courts would look to the totality of the circumstances to
decide whether a contract action was foreign. See id. at 55

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No. 23-3171 7
(A.W. Bradley, J., concurring). The majority in Abraham called
that test “particularly inappropriate” and against the policy
of Wisconsin’s borrowing statute. Id. at 53.
Though Abraham established the “final significant event”
test for § 893.07 and resolved several issues, other issues were
left open, as noted in the concurrence. Compare id. at 54 n.7
with id. at 55 (A.W. Bradley, J., concurring). Those issues
raised questions for future cases with more challenging facts
than in Abraham. Does a breach occur in the state: where the
breaching party is located; where the injured party resides;
where the contract was negotiated or purchased; or where the
breach was communicated? See id. at 55 (A.W. Bradley, J., con-
curring).
Since Abraham other decisions applying Wisconsin law
have spoken to some of these questions. For example, Ristow
v. Threadneedle Insurance Co., 583 N.W.2d 452 (Wis. App. Ct.
1998), addressed facts like those in Abraham. The Wisconsin
Court of Appeals considered whether the final significant
event in a contract claim was the nonreceipt of a settlement
check in Wisconsin or the refusal to issue the check in South
Carolina. See Ristow, 583 N.W.2d at 453. The court held that it
was the latter. See id. at 455.
Also in Edgewood Manor Apartment Homes LLC v. RSUI In-
demnity Co., No. 08–C–0920, 2010 WL 11492420 (E.D. Wis.
March 8, 2010), the Eastern District of Wisconsin federal court
reiterated that the final significant event for a contract claim
is the breach. That court located the breach where a duty is
rejected or not followed. See id. at *4–5.
Both parties here discuss another federal district court de-
cision, Haley v. Kolbe & Kolbe Millwork Co., No. 14-cv-99, 2015

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8 No. 23-3171
WL 3774496 (W.D. Wis. June 16, 2015), which built on Abra-
ham.2 There, the Western District of Wisconsin federal court
considered whether breach of warranty claims brought by
three sets of plaintiffs, residing in Michigan, Pennsylvania,
and Ohio, were subject to the statute of limitations of the
plaintiffs’ respective home states or Wisconsin. See Haley, 2015
WL 3774496 at *7. The claims concerned the defendant’s “no
defect express warranty,” which guaranteed the plaintiffs that
the windows they purchased from the defendant would re-
main “free from defects” for ten years after purchase. Id. at *5.
In Wisconsin, such warranty claims had a six-year statute of
limitations, but in each of the plaintiffs’ home states a four-
year limitations period applied. Id. at *6. The district court
found that the final significant event was the failure of the
windows in the plaintiffs’ home states. Id. at *7. The claims
were therefore “foreign” under Wisconsin’s borrowing stat-
ute, and the shorter four-year statutes of limitations of the
plaintiffs’ home states applied to the claims. Id.
In sum, these decisions teach that the final significant
event occurs where a contractual duty is breached: for exam-
ple, where the insurance company improperly rejected cover-
age, see Abraham, 576 N.W.2d at 53 and Ristow, 583 N.W.2d at
2 As district court decisions neither Haley nor Edgewood Manor bind
our court. They are even less helpful as unpublished decisions and when
reviewing state law under federal diversity jurisdiction. But we may con-
sider these authorities. See, e.g., Green Plains Trade Grp., 90 F.4th at 921,
927–29 (reminding that in diversity cases “we must apply state law as we
believe the highest court of the state would apply it”). As described above,
the Wisconsin Supreme Court has cited and relied on the reasoning of fed-
eral district court opinions, including Terranova in Abraham, on the ques-
tion in this case. See Abraham, 576 N.W.2d at 53.

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No. 23-3171 9
455, or where the nonconforming goods were delivered, see
Haley, 2015 WL 3774496, at *7.
B
Before considering where the breach occurred in this case,
we address a theory RCBA raised at oral argument. Rather
than the place of breach, RCBA contends the damages—
which occurred in Florida (RCBA’s home) and elsewhere
where the defective product was delivered—are the final sig-
nificant event. Damages are the last legal element of a contract
claim. See Pagoudis v. Keidl, 988 N.W.2d 606, 612 (Wis. 2023);
Wis. JI–Civil 3710, Consequential Damages for Breach of Con-
tract (2018). But they are not the final significant event for
Wisconsin courts interpreting § 893.07. Even the concurrence
in Abraham, while questioning the narrow scope of the major-
ity’s holding, did not consider the site of the damages as the
location for evaluating whether a cause of action was foreign.
See 576 N.W.2d at 55 (A.W. Bradley, J., concurring). We follow
the Wisconsin Supreme Court’s holding that the final signifi-
cant event for a claim of breach of contract or of implied war-
ranties is where the breach occurred. See id. at 53–54.
We turn now to the facts of this case. RCBA alleges that
ProAmpac provided defective products that breached its con-
tract, the implied warranty of fitness for a particular purpose,
and the implied warranty of merchantability. To decide
whether those claims are foreign, we look to where the breach
occurred. The district court found the breach occurred where
the fillers received delivery of the pouches which split open,
in New York or Texas.
RCBA argues the district court incorrectly placed weight
on when and where RCBA first noticed or discovered the

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10 No. 23-3171
breach. RCBA contends it did not discover the breach in New
York or Texas where the fillers were located, but in Florida
where it was “at home.” In the alternative, RCBA says that
there is no way to tell whether the discovery of the breach oc-
curred in New York, Texas, or anywhere the pouches were
delivered and that it would be nonsensical for a customer or
other party’s notice of the defect to be the final significant
event in a contract claim.
These arguments do not track the district court’s findings.
That court defined the final significant event as the breach,
which is the delivery of a defective product. That court did
not, and we do not, consider where customers received the
defective product, when the plaintiff discovered the breach,
or who first noticed the defective product. Neither discovery
nor notice are relevant to the final significant event analysis.
Under Wisconsin case law, the breach is what matters. Our
research did not yield a Wisconsin opinion (or federal deci-
sion applying Wisconsin law) that has sought to identify the
final significant event by examining notice and discovery.
Such a test would run counter to an objective of the Wisconsin
borrowing statute to discourage forum shopping. The Wis-
consin Supreme Court has emphasized the importance of this
objective in interpreting its borrowing statute. See, e.g., Guer-
tin, 415 N.W.2d at 835 (noting one of the reasons the Wiscon-
sin legislature enacted the borrowing statute was to “reduc[e]
forum shopping”). If notice or discovery were the test, a com-
pany could wait to file suit until it was notified in a particular
state. Or a company seeking application of a particular state’s
laws could allege certain facts related to that state to show no-
tice or discovery in that state.

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No. 23-3171 11
Next, RCBA asks us to consider that the only connection it
and its contract claims have to New York and Texas is that
third parties “first saw the defects” there. Whether a party
was “at home” in the jurisdiction whose law applies does not
matter under Wisconsin’s borrowing statute. The Wisconsin
Supreme Court rejected a contacts-based test in Abraham. 576
N.W.2d at 52 (disagreeing with the lower court’s use of the
“significant contacts” test to decide whether a cause of action
was foreign and what state’s law applied under Wisconsin’s
borrowing statute). Per Wisconsin’s “final significant event”
test, the correct inquiry is the location of the breach, not the
location of notice, discovery, or significant contacts.
Here, the final significant event, the alleged breach, oc-
curred where ProAmpac delivered product to its contracted
destinations, RCBA’s fillers in New York and Texas. Later
sales of the allegedly defective product are unnecessary to es-
tablish a breach. And focusing on the location of those later
sales and defects noticed by customers does not aid our anal-
ysis. Abraham confirms this. There, the Wisconsin Supreme
Court explained that it adopted the final significant event test,
rather than the place of injury test, in part because “it is fre-
quently difficult to attach the plaintiff’s contractual ‘injury’ to
any one locale.” See 576 N.W.2d at 53. Instead, for contract
claims, courts should look at the location of the breach. See id.
So, the claims are “foreign” causes of action for purposes of
Wisconsin’s borrowing statute, and the New York or Texas
statute of limitations apply.
We turn next to the applicable statute of limitations for the
foreign claims. Pursuant to § 893.07, the shortest statute of
limitations among Wisconsin, New York, or Texas applies.
Wisconsin’s statute of limitations for breach of contract is six

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12 No. 23-3171
years. WIS . S TAT. § 402.725(1) (“An action for breach of any
contract for sale must be commenced within 6 years after the
cause of action has accrued.”). New York’s and Texas’s is four
years. N.Y. U.C.C. LAW § 2-725(1) (“An action for breach of
any contract for sale must be commenced within four years
after the cause of action has accrued.”); T EX . BUS . & C OM . C ODE
A NN . § 2.725(a) (“An action for breach of any contract for sale
must be commenced within four years after the cause of ac-
tion has accrued.”). So, RCBA’s contract claims are governed
by the shorter four-year limitations periods in New York and
Texas. See WIS . S TAT. § 893.07.
RCBA’s breach of contract claim alleges that the breach oc-
curred upon delivery of the defective pouches. More detail is
provided in RCBA’s allegations that ProAmpac breached im-
plied warranties of fitness for a particular purpose and of
merchantability when—beginning “in about July 2017 and
continuing into 2018”—ProAmpac delivered the defective
pouches to RCBA’s New York and Texas filling centers.
RCBA filed this action in 2023.
Therefore, looking to the dates RCBA alleges in its com-
plaint and giving RCBA the benefit of the latest date it alleges,
the four-year statute of limitations began accruing sometime
in 2018. The district court concluded the same, and RCBA
does not dispute this conclusion. Because delivery thus oc-
curred in 2018, more than four years before RCBA filed this
action in 2023, all three of RCBA’s contract claims are time-
barred.
IV
RCBA also moved to reconsider the district court’s ruling,
contending that the contract statute of limitations of Florida

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No. 23-3171 13
or Wisconsin, not of New York or Texas, should apply. That
argument raised at the motion to dismiss stage fails under the
less deferential de novo standard for the reasons explained
above. So too, it fails under the abuse of discretion standard,
and we need not review it again here.
RCBA further submits that its claims would have survived
if the court had applied various state-law equitable doctrines.
Because the district court found that the Florida statute of lim-
itations governed RCBA’s negligence claim, RCBA maintains
that Florida’s equitable doctrines should also apply. Likewise,
because the district court found that New York and Texas lim-
itations periods governed RCBA’s contract claims, RCBA con-
tends those states’ equitable doctrines should apply. On this
point, more fundamentally RCBA argues that the district
court erred by applying New York’s and Texas’s law to its
contract claims, and instead that they should be governed by
Florida’s statute of limitations and equitable doctrines.
But these arguments to apply state equitable doctrines
were not included in RCBA’s response to the motion to dis-
miss. A party may not raise an argument for the first time in
a motion for reconsideration. See Baker v. Lindgren, 856 F.3d
498, 503 (7th Cir. 2017) (“The district court correctly noted that
arguments raised for the first time in a motion to reconsider
are waived.”); In re Outboard Marine Corp., 386 F.3d 824, 828
(7th Cir. 2004) (noting that a party waives arguments by not
raising them until the motion for reconsideration). So these
arguments are waived.
Attempting to persuade us otherwise, RCBA says that the
primary argument at the motion to dismiss stage was about
personal jurisdiction, so it need not have briefed supple-
mental issues (like the state equitable doctrines) until the

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14 No. 23-3171
district court issued an order. Put another way, RCBA reasons
that it did not need to raise the state equitable doctrines until
the district court placed those doctrines at issue by finding
that some of RCBA’s claims were foreign and barred by other
states’ statutes of limitations.
The record does not support that reasoning. The briefs on
the motion to dismiss discussed the application of foreign
statutes of limitations in addition to personal jurisdiction.
RCBA could have responded to those arguments with poten-
tial state equitable defenses. A motion to reconsider is not a
vehicle to supplement arguments not included at the motion
to dismiss stage, as this court has held numerous times. See
Baker, 856 F.3d at 503; In re Outboard Marine Corp., 386 F.3d at
828.
* * *
RCBA’s claims are foreign under Wisconsin’s borrowing
statute and are either time-barred under other states’ limita-
tions periods or otherwise precluded. And RCBA’s argu-
ments about equitable doctrines cannot be raised for the first
time in its motion to reconsider. For these reasons, we A FFIRM
the district court.

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