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TUTEUR ASSOCS. v. TAUBENSEE STEEL & WIRE CO.

August 17, 1994

TUTEUR ASSOCIATES, INC., Plaintiff,
v.
TAUBENSEE STEEL & WIRE COMPANY, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Tuteur Associates, Inc. ("Tuteur") has brought this diversity-of-citizenship action against Taubensee Steel & Wire Company ("Taubensee"), charging Taubensee with a breach of written and oral contracts by having refused to accept and pay for coils of steel wire rod delivered to it by Tuteur. Taubensee has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. *fn1" For the reasons set forth in this memorandum opinion and order, its motion is granted and this action is dismissed with prejudice.

 Facts

 On April 17, 1990 Taubensee placed a Purchase Order (D. Ex. 1) with Tuteur for a total of 2000 tons of steel wire rod to be delivered on June 15 and July 20, 1990 (D. 12(m) P6). Tuteur responded by sending Taubensee three Sales Contracts (D. Ex. 2) dated June 11, 1990 that collectively stated a total of 1500 "MT" (metric tons) of steel wire rod would be "Shipped from Europe around July/August 1990" and that departed in other material respects from the terms of the Purchase Order (D. 12(m) P12). Each Sales Contract included a provision requiring that any dispute be resolved by arbitration, although the Purchase Order had contained no such requirement (id. P14), and each was signed by a representative of Tuteur and had a blank signature block for a Taubensee representative under the language "Kindly return one copy duly accepted" (id. P15). Taubensee neither signed nor returned any of the Sales Contracts to Tuteur (id.).

 About August 14, 1990 Tuteur shipped some 3,000 tons of steel wire rod to the Port of Milwaukee, Wisconsin for delivery to Taubensee (Complaint P6). Taubensee accepted and paid for roughly 516 MT of that shipment (P. 12(n) P34). Tuteur concedes that approximately 477 MT of the remaining tonnage did not meet Taubensee's specifications due to salt water damage, but Tuteur asserts that Taubensee improperly refused acceptance of the balance, some 2007 MT (Complaint P6).

 Tuteur initially sued Taubensee for breach of contract in the Southern District of Texas, but the district court there ruled that it lacked personal jurisdiction over Taubensee (D. 12(m) PP19-20). When the case was then transferred to this District Court, Tuteur voluntarily dismissed it on June 9, 1992 (id. P20). Then on September 14, 1992 Tuteur filed a "Demand for Arbitration" of that claim to be heard before the American Arbitration Association in New York City (id. P21, D. Ex. 5).

 In February 1993 Taubensee filed an action in this District Court (the "Prior Action," Case No. 93 C 1244) to stay those proceedings on the ground "that there is no agreement to arbitrate" (D. 12(m) P22; D. Ex. 6 at 1). Cross-motions for summary judgment followed (D. 12(m) P23). On December 6, 1993 this Court's colleague Honorable Brian Barnett Duff granted Taubensee's motion (id. P24), stating in full (D. Ex. 11 (citations omitted)):

 
The case arises out of an alleged 1990 steel purchasing agreement between Plaintiff, Taubensee Steel and Defendant, Tuteur Associates, Inc. ("Agreement"). The parties dispute whether, despite the existence of terms in the Plaintiff's "Purchase Order" providing that its terms should be the sole provisions of the Agreement, the Plaintiff is bound by arbitration provisions included in the Defendant's "Sales Contracts."
 
Assuming, arguendo, that any contract was formed between the parties, or if the contract was formed between "merchants" pursuant to U.C.C. 2-207(a), the arbitration provisions would not be a part of that contract in the case at bar. This is because the Purchase Order expressly limited acceptance to its terms and made no mention of an arbitration provision. The Plaintiff's Purchase Order explicitly stated that it was "conditioned upon Seller's acceptance of all terms and conditions stated [therein]" and that such "terms and conditions may not be modified, added to, or deleted without the express written consent of Taubensee Steel & Wire Company." The Purchase Order also stated that its terms "constitute the sole terms and condition of this contract," and that no other terms "shall be binding upon Taubensee, unless hereafter made in writing and signed by our authorized representative." Moreover, the Purchase Order stated, "We specifically object to any different terms in any document or writing prepared or furnished by the seller." The Defendants had notice of the conditions in the Plaintiffs [sic] Purchase Order expressly limiting the Defendant's acceptance. Hence, the Plaintiff's conditions are enforceable.
 
Moreover, even if the parties conducted themselves as if they had an agreement, 2-207(c) provides that only those terms on which the writing of the parties agree are enforceable.
 
The Defendant's arguments that (1) the Plaintiff accepted the arbitration provisions because it never objected to any terms in the Sales Contracts and sent no written notice of objection to the contents of such Sales Contracts within (10) days of receiving them (Citing, U.C.C. 2-201(2)), and (2) that the Plaintiff's inclusion of the typewritten phrase, "terms subject to additional discussion" constituted the Plaintiff's "express written consent" that the terms and conditions in the Purchase Order could be modified are rejected for the reasons stated in open court.
 
Accordingly, the Plaintiff's Motion for Summary Judgment is granted and the Defendant's Motion for Summary Judgment is denied. *fn2"

 Judge Duff's decision was never appealed and has become final, and Tuteur's arbitration claim was dismissed because of that decision (D. 12(m) PP28-29).

 Tuteur contends here that it had a written contract for the delivery of the 1,500 MT of steel wire rod referred to in its Sales Contracts (rather than the 2,000 tons specified in Taubensee's Purchase Order)(D. 12(m) P13; Complaint P5), plus an oral contract for the delivery of an additional 1,500 MT subject to the same conditions as the Sales Contracts (D. 12(m) P18; Complaint P5), thus explaining its delivery of the 3,000 MT shipment. Taubensee responds that those claims are respectively barred by issue preclusion ...


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