ARG Int'l, AG v. Olin Corp.

Decision Date01 November 2021
Docket Number4:20 CV 580 JMB
PartiesARG INTERNATIONAL, AG, Plaintiff, v. OLIN CORPORATION, Defendant.
CourtU.S. District Court — Eastern District of Missouri

ARG INTERNATIONAL, AG, Plaintiff,
v.

OLIN CORPORATION, Defendant.

No. 4:20 CV 580 JMB

United States District Court, E.D. Missouri, Eastern Division

November 1, 2021


MEMORANDUM AND ORDER

JOHN M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendant Olin Corporation's Motion for Summary Judgment (Doc. 25) and Plaintiff ARG International, AG's Partial Cross-Motion for Summary Judgment (Doc. 32).[1] For the following reasons, Olin's Motion is GRANTED in part and DENIED in part and ARG's Partial Motion is DENIED.

I. Factual Background

The following facts are undisputed except where indicated.

Olin, a Virginia corporation with its principal place of business in St. Louis, Missouri, sells commercial grade 50% Sodium Hydroxide solution, commonly known as “caustic soda, ” which is used to produce aluminum (Olin's Statement of Uncontroverted Material Facts (“SUMF”), Doc. 27, ¶ 1). ARG is a Swiss trading company that focuses on aluminum and its components and products, including caustic soda (Olin's SUMF ¶ 2). Since 2016 to April 2020, ARG purchased caustic soda from Olin (ARG's Statement of Additional Uncontroverted Material Facts

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(“SAUMF”), Doc. 31, ¶ 13). Olin sold caustic soda on a “spot” basis, which is a one-time or short time period transaction, or based on a longer specified term (ARG's SAUMF ¶ 13).[2]

In March 2020, Olin's Daniel Garber engaged in discussions with ARG's Zach Mayer to purchase 4 barges worth of caustic soda (Olin's SUMF ¶¶ 3, 6; Doc. 27-3). The primary mode of communication was through an email exchange. On March 18, 2020, Garber emailed Mayer: “I did want . . . to see if we were still in agreement for April barges to ARG at Cash In Advance, $220 per Dry Metric Ton [“DMT”] delivered. 4 or 5 barges?” (Doc. 23-7, p. 5). In response, Mayer indicated that he needed to speak to Matt (i. e. Matthew Lucke, the owner of ARG) and that he would get back to Garber (Doc. 23-7, p. 5).[3] On March 26, 2020, Garber and Mayer had a telephone discussion about the purchase of caustic soda and Garber sent a follow-up email stating that Olin can commit up to 4 barges in April but that the price increased to $254 per DMT (Doc. 27-3, pp. 7-8; ARG's SUMF, Doc. 34, ¶ 52). The email stated in part:

Good news: We can make a few shifts and commit to up to 4 barges for April. Pay as you go, no need to commit to entire PO[4] up front. If you take 3 barges instead of 4 - no problem
Bad news: We have to look at an increased value for these shipments based on multiple market dynamics but can offer them at $254.00 per DMT delivered
.... Please give me a call back to discuss these items as needed .... (Doc. 27-3, p. 8)
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Mayer then relayed the new price to Lucke via email (Doc. 34-21, p. 2). The next communication is disputed: Mayer avers that on March 27th, he telephoned Garber “to communicate that ARG agreed to the deal” (Zach Mayer Declaration, Doc. 34-4, ¶ 20). While Garber acknowledges that he spoke to Mayer on March 27th, “[a]t no time on the . . . telephone conversation, or at any time thereafter, did Zach Mayer communicate to me that ARG agreed to any specific deal, that ARG accepted Olin's offer, or that ARG was committing to purchase Caustic Soda from Olin” (Daniel Garber Declaration, Doc. 39-10, ¶ 4).[5]

On April 2, 2020, the parties exchanged the following emails:

From Garber to Mayer: It is my understanding our supply chain has been contacted regarding the first barge for April being requested for next week. Please send PO for this order at $254/DMT, cash in advance payment term and we will begin processing (Doc. 27-3, p. 12).
From Mayer to Garber: Please send me your contract draft for my review whenever convenient. Once we have agreed on contract terms and wording, I'll be able to send you ARG's PO (Doc. 27-3, p. 11).[6]

In Garber's next email to Mayer, he attached an unsigned contract for the sale of approximately 4000 DMT of caustic soda contained in 4 barges at $254 per DMT to be delivered to ARG's facility in Burnside, Louisiana (Doc. 27-3, pp. 13-15). Mayer did not respond to that email, did not return a signed copy of the contract, and did not send a PO to Garber. On April 3rd, approximately 24 hours after sending the draft contract, Garber sent another email to Mayer:

Things are changing quickly .... I have been given instructions from senior management to pull this offer off the table unless there is an agreement for Olin to
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receive the outstanding balance due (discount offer of 23% still exist) (Doc. 23-7, p. 11).[7]

Three weeks later, on April 27, 2020, ARG filed suit alleging: specific performance (Count I), breach of contract (Count II), anticipatory breach of contract (Count III), and promissory estoppel (Count IV). ARG seeks damages and injunctive relief.

II. Standard

Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under Rule 56, a party moving for summary judgment bears the burden of demonstrating that no genuine issue exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” and a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Once the moving party discharges this burden, the non-moving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the “mere existence

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of some alleged factual dispute.” Anderson, 477 U.S. at 247. The non-moving party may not rest upon mere allegations or denials in the pleadings. Id. at 256. “Factual disputes that are irrelevant or unnecessary” will not preclude summary judgment. Id. at 248.

The Court must construe all facts and evidence in the light most favorable to the non-movant, must refrain from making credibility determinations and weighing the evidence, and must draw all legitimate inferences in favor of the non-movant. Id. at 255. “Where parties file cross-motions for summary judgment, each summary judgment motion must be evaluated independently to determine whether a genuine issue of material fact exists and whether the movant is entitled to judgment as a matter of law.” Progressive Cas. Ins. Co. v. Morton, 140 F.Supp.3d 856, 860 (E.D. Mo. 2015) (citations omitted).

III. Discussion

In its motion, Olin argues that there was no contract between Olin and ARG for the sale of caustic soda in April 2020. Specifically, it argues that the parties negotiated a contract but that it was neither signed nor executed in any other manner. In response, ARG argues that they verbally agreed to the sale of caustic soda, as was their long-term practice and prior course of dealing, but that Olin reneged on the agreement for a nefarious reason, to compel ARG to take on a $1.2 million debt owed to Olin by LAlumina. In its motion, which seeks judgment on Counts II and IV (breach of contract and promissory estoppel, respectively), ARG argues that a contract was formed based on the emails, which constitute a writing, that Olin made a written offer that ARG verbally accepted, and that by failing to deliver the barges, Olin breached the contract and caused damages. In response, Olin again argues that no contract was formed and that, in any event, it is a question of material fact as to whether a contract was formed.

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A. Breach of Contract and related Counts (Counts I, II, and III)

In order to prevail on a breach of contract claim, ARG must first show that there is a valid and binding contract. Grandoe Corp. v. Gander Mountain Co., 761 F.3d 876, 882 (8th Cir. 2014) (“This question of contract formation precedes any question about the legal effect of the contract's terms.”). A contract is valid and enforceable if there is an offer, acceptance, and consideration. Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. 1988); Sansone L., LLC v. J&M Sec., LLC, 589 S.W.3d 74, 86 (Mo.Ct.App. 2019); Ketcherside v. McLane, 118 S.W.3d 631, 635 (Mo.Ct.App. 2003) (“The essential elements of a contract are: (1) competency of the parties to contract; (2) subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation” (quotation marks and citation omitted)).[8] If there are facts in dispute, the existence of a contract is a question of fact; however, if there are no facts in dispute, the existence of a contract is a question of law. O.R.S. Distilling Co. v. Brown-Forman Corp., 972 F.3d 924, 925-926 (8th Cir. 1992).

Olin argues that an offer was made on April 2nd when Garber requested a purchase order from ARG after ARG had contacted its supply chain to arrange for the barges. However, a jury could find that the offer came earlier, with the March 26th email wherein Garber indicated that Olin was ready and willing to supply 3-4 barges in April at $254.00 per DMT. With that email, Olin made a “definite offer” to provide the caustic soda that ARG requested and provided the essential terms: what, when, how, amount, and price. These terms were essential because they were the only terms that Garber and Mayer discussed during negotiations and the only terms attached to a cover sheet on a subsequent form contract as set forth below. See Matthes v. Wynkoop, 435 S.W.3d 100, 107 (Mo.Ct.App. 2014) (whether a term is material “depends on the

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agreement and its context and also on the subsequent conduct of the parties, including the dispute which arises and the remedy sought” (quotation marks and citations omitted)).

In any event, regardless of when an offer was made, there is a question of fact as to whether the offer was accepted: ARG argues that Mayer verbally...

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