United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant The Hartz Mountain
Corporation's Motion for Summary Judgment (Dkt. #28).
Having considered the motion and the relevant pleadings, the
Court finds that the motion should be granted.
August 22, 2018, Plaintiff Natural Polymer International
Corporation filed its Original Petition in the 366th Judicial
District Court of Collin County, Texas (Dkt. #1-1). On
September 21, 2018, Plaintiff removed the case to this Court,
asserting diversity jurisdiction under 28 U.S.C. § 1332
(Dkt. #1). Pursuant to the Court's Order and
Advisory, Plaintiff filed an Amended Complaint on October 25,
2018 (Dkt. #4; Dkt. #6).
alleges in its Amended Complaint that it is a manufacturer of
natural pet treats (Dkt. #6 ¶ 9). In 2016, Plaintiff
claims it “entered into a business relationship with
Defendant whereby (i) Defendant would seek certain products
and services from [Plaintiff], (ii) [Plaintiff] would provide
certain products and services, and (iii) Defendant would pay
[Plaintiff] for the products and services provided.”
(Dkt. #6 ¶ 10). The products and services referred to by
Plaintiff includes: “(i) the sourcing of quality raw
materials, (ii) the manufacture of pet treats, (iii) the
sourcing of packaging materials, and (iv) the packaging and
shipment of pet treats.” (Dkt. #6 ¶ 11).
April 2017, Plaintiff claims that Defendant requested
“certain products and services” pursuant to the
parties' business relationship (Dkt. #6 ¶ 18). To
fulfil Defendant's requests, Plaintiff allegedly
“incurred significant costs by acquiring quality raw
materials and packaging materials to satisfy the requests
made by Defendant . . .” (Dkt. #6 ¶ 19). After
Plaintiff incurred these costs, Defendant canceled its
requests in May of 2017 (Dkt. #6 ¶ 20).
alleges a breach-of-contract claim and, in the alternative,
claims for promissory estoppel and quantum meruit against
Defendant (Dkt. #6 ¶¶ 25-41). In addition to other
requested damages, Plaintiff seeks to recover its
attorney's fees and costs related to prosecuting this
suit (Dkt. #6 at p. 7). On July 19, 2019, Defendant filed its
Motion for Summary Judgment (Dkt. #28). Plaintiff filed a
response in opposition to the motion on August 9, 2019 (Dkt.
#30). Defendant filed a reply in support of the motion on
August 16, 2019 (Dkt. #31).
matters, the parties disagree about what contract or
contracts are relevant to Plaintiff's breach-of-contract
claim. Plaintiff argues that three contracts exist between
the parties and that there is a genuine issue of material
fact concerning whether Defendant is liable for breach under
all of them (Dkt. #30 at pp. 10-14). Plaintiff alleges that
these three contracts are: (1) a November 2016
memorialization of an oral agreement (“Contract
One”); (2) seven purchase orders that Defendant placed
in April 2017 with identical terms and conditions attached
(“Contract Two”); and (3) a “Master Supply
Agreement” executed in August of 2017 (“Contract
Three”) (Dkt. #30 at pp. 10-14). But Defendant submits
that only Contract Two governs the parties' obligations
in this litigation (Dkt. #28 at pp. 14-18). The Court
outlines the essential contents from each of the three
ostensible contracts below:
One is a November 10, 2016, email sent from one of
Plaintiff's employees to one of Defendant's employees
(Dkt. #30-1 ¶ 5; Dkt. #30-2). The email purports to
recap an earlier phone conversation between the parties. The
relevant terms are as follows:
- [Defendant] requested certain raw materials that are not
stock items for [Plaintiff].
- [Defendant] will be responsible for these materials, which
will be identified by [Plaintiff], and will buy them if the
project is canceled, if the materials go out of date, or if
any materials are left after 12 months from the date of
Two consists of seven purchase orders placed by Defendant in
April 2017 with identical terms and conditions attached (Dkt.
#28 at p. 10; Dkt. #28, Exhibits 1-7). The purchase orders
were signed by Defendant, and each order stated that it was
“subject to the General Terms and Conditions set forth
below and to any other master agreement which are [sic]
incorporated herein as part of this contract” (Dkt.
#28, Exhibits 1-7). Both parties agree that Contract Two
contains a valid New Jersey choice-of-law clause (Dkt. #28 at
p. 13; Dkt. #30 at p. 10). The relevant terms from the
General Terms and Conditions attached to each purchase order
are as follows:
. . .
- Acceptance of this offer is limited to acceptance on the
terms and conditions of this offer and on no other terms and
conditions; provided that, this Order shall be subject to the
terms and conditions of any Master Purchase Agreement that
may be in place between [Defendant] and [Plaintiff]
(hereinafter an “MSA”).
- Fulfillment of any part of an Order, or any other conduct
by [Plaintiff] which recognizes the existence of a contract
pertaining to the subject matter of such Order, shall
constitute acceptance by [Plaintiff] of such Order and all of
the terms and conditions included or referenced herein,
including any MSA (collectively, the “Contract
- [Defendant] objects to any terms proposed in
[Plaintiff's] proposal, sales note, acknowledgment or
other form of acceptance of [Defendant's] offer which add
to, vary from, or conflict with the Contract Terms. Any such
proposed terms shall be void and the Contract Terms
constitute the complete and exclusive statement of the terms
and conditions between [Plaintiff] and [Defendant].
. . .
- If an Order has been issued by [Defendant] in response to
[Plaintiff's] offer and if any of the Contract Terms add
to, vary from or conflict with any terms of [Plaintiff's]
offer, then the issuance of the Order by [Defendant] shall
constitute an acceptance of [Plaintiff's] offer subject
to the express conditions that [Plaintiff] assents to the
additional, different and conflicting Contract Terms and
acknowledges that the Order and these Contracts Terms
constitutes the entire agreement between [Plaintiff] and
[Defendant] with respect to the subject matter hereof and the
subject matter of [Plaintiff's] offer. [Plaintiff] shall
be deemed to have so assented and acknowledged unless
[Plaintiff] notifies [Defendant] to the contrary in a writing
signed by [Plaintiff's] authorized representative within
ten (10) working days of receipt of the Order.
. . .
13. ORDER CANCELLATION:
(a) [Defendant] may terminate all (or any portion) of this
Order for its sole convenience at any time by written or
electronic notice to [Plaintiff], which termination shall be
effective upon receipt, or upon such other date as may be
specified in such notice. Upon receipt, [Plaintiff] shall
cease any further work in regards to such Order as specified
in such notice. [Defendant] shall pay for any ...