Corestar Intern. Pte. v. Lpb Communications, Civil Action No. 05-5850(NLH).

• Decision Date: 10 May 2007
• Docket Number: Civil Action No. 05-5850(NLH).
• Citation: 513 F.Supp.2d 107
• Parties: CORESTAR INTERNATIONAL PTE. LTD, Plaintiff/Counter Defendant, v. LPB COMMUNICATIONS, INC., Dominick Spadea and Thomas Spadea, Defendants/Counter Claimant.
• Court: U.S. District Court — District of New Jersey

Page 107

513 F.Supp.2d 107

CORESTAR INTERNATIONAL PTE. LTD, Plaintiff/Counter Defendant, v. LPB COMMUNICATIONS, INC., Dominick Spadea and Thomas Spadea, Defendants/Counter Claimant.

Civil Action No. 05-5850(NLH).

United States District Court, D. New Jersey.

May 10, 2007.

COPYRIGHT MATERIAL OMITTED

Paul A. Mainardi, Esquire, Brown and Connery, Westmont, NJ, for Plaintiff.

Joseph D. Dinoto, Esquire, Cherry Hill, NJ, for Defendants.

OPINION

HILLMAN, District Judge.

This matter has come before the Court on Defendants' motion for summary judgment and Plaintiff's cross-motion for summary judgment. For the reasons expressed below, the parties' motions will be granted in part and denied in part.

BACKGROUND

This case involves a dispute over Plaintiff Corestar International's purchase of shortwave radio transmitters and amplifier modules from Defendant LPB Communications ("LPB"). In the beginning of February 2005, Corestar International ("Corestar"), a company based in Singapore, inquired about purchasing seven 10kw shortwave transmitters from LPB, a company based in Camden, New Jersey. Through email communications, the parties discussed the purchase price and terms of delivery. During their negotiations, Corestar inquired whether LPB could "stick to the old price," meaning whether LPB could price its transmitters based on the 2004 price list rather than the new 2005 price list, and whether LPB could "deliver the transmitters in a reasonable time frame." (Pl.'s Ex. A at P001.) LPB replied that it would have to "look at the numbers" about the pricing, and stated that regarding the delivery, the earliest that the transmitters would be ready was the middle of April or early May, with a delivery capacity of two transmitters a month. (Id.)

On February 12, 2005, LPB sent Corestar an email with the following terms: "Selling cost to you = $48,996 each (based on a 7 transmitter order) 75% pre-pay[,] 25% Balance of each transmitter at shipping[.] Delivery schedule 2 transmitters per month. Shipping cost — your side." (Id. at P008.) LPB also stated that a formal quote would be forthcoming.

On February 16, 2005, LPB emailed Corestar a formal quotation. The quotation was dated February 15, 2005 and contained the following relevant terms:

Product: 10kW short-wave transmitter Price: $46,995 each, Quantity 7 = "325,465

VALIDITY OF QUOTE: 30 Days, subject to confirmation there after. Quote # 103591

Delivery Schedule: Two transmitters per month starting June 30, 2005 (earlier permitted)

PAYMENT TERMS: Pre-payment 75% of-full order value Balance to be prorated against shipments

(Pl.'s Ex. B.) The quotation also contained two fine-print provisions:

Prices are for transmitters as listed below, F.O.B. Camden, New Jersey, USA in U.S. Dollars. Acceptance of the Conditions Governing Quotations is automatic on issuance of a Purchase Order or Contract for any equipment offered by LPB Communications, Inc.

CONDITIONS: The price and terms on the quotation are not subject to verbal changes or other agreements unless approved in writing by the Seller. All quotations and agreements are contingent upon availability of materials and all other causes beyond our control. Prices quoted are based on this quote in its entirety. Terms inconsistent with those stated herein which may appear on the Purchaser's formal order will not be binding on the Seller.

(Id.)

On February 17, 2005, Corestar emailed LPB its purchase order. The purchase order included a reference to quotation number 103591, and contained the following relevant terms:

LPB 10KW SOLID STATE SW TRANSMITTER 7 set 46,995.00 328,965.00¹ ...

EACH TX TO BE LABELED CLEARLY WITH

FREQ & STATION NAME ON CRATE

SPECIAL WOODEN CRATES PACKING

2 TX PER MONTH FROM JUNE OR EARLIER

LAST SHIPMENT BY O1 AUGUST

Remarks: Voltage is 220V unless stated otherwise above 75% DEPOSIT, BALANCE PRORATED

(Pl.'s Ex. B.) The purchase order also contained a fine-print provision:

Goods will not be accepted unless our Purchase Order Reference is quoted. Goods supplied must be in accordance with quality and quantity specified. We reserve the right to cancel this order if materials are not delivered within the time specified and according to specification.

(Id.)

Corestar's email accompanying the purchase order also stated that it wanted to further clarify the payment and delivery terms: "We will pay a 75% deposit (US$244098.75) by Monday[.] The balance of US$81366.25 is to be paid when the 6th tx is ready. Trust that this is okay. Kindly ensure that the transmitters are labeled (sic) clearly with frequency and station name. We also hope to receive all the transmitters by 1 August and would like to ship the last 3 transmitters together. Thanks and look forward to your reply." (Pl.'s Ex. A at P0010.)

That same day, LPB sent an email acknowledging receipt of Corestar's email and purchase order. It stated that it would let LPB know when it received the money transfer, and it would "get the ball rolling immediately on procurement activities for this project." (Id.) The email also agreed to Corestar's statement of further clarification on the payment and delivery terms — "Ok to points below." (Id.) It ended the email with, "Thank you [a]gain for this excellent order and for your prompt actions." (Id.)

On March 31, 2005, Corestar emailed LPB-, asking whether LPB could move up delivery of the first two transmitters and include three transmitters in the second shipment because Corestar's customer needed his transmitters "urgently." (Id. at P0015.) Corestar also asked for a quotation on 28 700w short wave amplifier modules. (Id.) On April 2, 2005, LPB replied, providing a quote for the amplifier modules. (Id.) LPB did not address Corestar's request for expedited shipment of the transmitters.

On April 5, 2005, Corestar sent another email to LPB asking about the delivery schedule for the transmitters. (Id. at P0017.) Later that same day, LPB replied, stating that it was "still confident for June shipments and will do anything ... to expedite." (Id. at P0020.) In an April 8, 2005 email, LPB stated, "regarding accelerating the schedule[,] while we will do everything possible it will be difficult to be sure to move the schedule up." (Id. at P0021.)

On April 12, 2005, Corestar emailed LPB its purchase order for twenty-eight amplifiers totaling $28,644.00. On its purchase order, which used the same form as the purchase order for the transmitters, Corestar stated that the amplifiers were to be shipped with the transmitters. (Pl.'s Ex. D.) LPB acknowledged the order in an email, stating, "All is `right' with it. Yes, we will make sure to deliver[] amps with transmitter shipments." (Pl.'s Ex. A at P0027.) Payment in full was made the next day via wire transfer. (Pl.'s Ex. D.)

A couple weeks later on May 3, 2005, Corestar again asked LPB whether LPB would be able to "pull off a miracle" and have an early shipment of the first transmitter. LPB replied, "No miracle yet. I am trying however." (Pl.'s Ex. A at P0026.) A few weeks later, on May 24, 2005, Corestar sent LPB, which apparently had not been able to expedite shipping, another email asking for the status on the shipments of the transmitters, and whether LPB would be able to comply with the originally-agreed-upon schedule. (Id. at P0033.) LPB responded that "things have not gone as planned," due to production of transmitters for the government, as well as one of its lead engineer's medical emergency. (Id.) LPB stated that it was "working around this problem but it is having an impact on our best plans." (Id.) Corestar replied that it needed the transmitters by the end of June because it "already specified a definite delivery date" to its customer and "would face penalties" if the transmitters were not shipped on time. (Id. at P0032-33.) LPB responded that its "best hopes" would be to ship one transmitter by the end of June. (Id. at P0032.)

On June 14, 2005, Corestar notified LPB that its customer was concerned about the delivery of the transmitters, and asked for an update. (Id. at P0031.) The next day, LPB responded with "not so good news." LPB explained that the government transmitters must be finished before Corestar's, and that shipment of Corestar's transmitters "look improbable for June," but are "certainly" expected to ship "at least one in July if not two." (Id.) Corestar replied on July 21, and related that it was "sorely disappointed." Corestar stated that it had paid the seventy-five percent deposit in February "in the expectation that LPB will meet the agreed delivery schedule." (Id.) Corestar further explained that it made a business commitment to its customer and was "liable to deliver the goods as agreed. (Id.) Corestar requested the current time frame for delivery and needed "to know that best and worst case scenario." (Id.)

In the days following that email, Corestar attempted to contact LPB again via telephone and email, and LPB responded on July 1, 2005. LPB responded that it was "still difficult to confirm the actual schedule." (Id. at P0030.) It explained that its "problem from the beginning" was "getting the two transmitters ... for the government out of here." (Id.) LPB acknowledged that it could not give Corestar a definite delivery schedule, but it would try to do so the next week. (Id.)

On July 19, 2005, Corestar emailed LPB and implored LPB to provide a delivery schedule. (Id. at P0035.) LPB replied the next day, stating, in part,

I apologize for not replying more promptly to you. It is always difficult to reply when the news is not as good as it should be. Frankly, the delay to ship the first Department of the Navy transmitter and the fact that we are working on the second of two for that order has, delayed our work on your order. Cutting to the key point I am 6 weeks away from delivering your first transmitter (best scenario). Now the background. Yes we are late. The government transmitters are special custom transmitters and were...