Wisconsin Electric Power Co. (WEPCO) (plaintiff) contracted to have Union Pacific Railroad Co. (Union Pacific) (defendant) haul coal. After delivery, Union Pacific loaded empty cars with iron ore to haul to a steel mill. The force majeure clause allowed Union Pacific to charge WEPCO more if it was prevented from reloading the cars with iron ore. After the mill closed, Union Pacific notified WEPCO that it would charge a higher rate. Union Pacific was required to provide notice to WEPCO and take steps to abate the force majeure if possible. The contract also stated that a right would not be waived simply because a party did not assert it. WEPCO filed a diversity suit for breach of contract and the duty of good faith, and Union Pacific was granted summary judgment. WEPCO appealed to the United States Court of Appeals for the Second Circuit.