United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
R. KNEPP II UNITED STATES MAGISTRATE JUDGE.
Plastic Systems, LLC (hereinafter “Revere”),
filed a Complaint alleging: breach of contract (Count One),
conversion (Count Three), willful damage or theft (Count
Four), tortious interference with a business relationship
(Count Five), and unjust enrichment (Count Six) against
Plastic Plate, LLC. (Doc. 1-1, Complaint). Revere further
requested declaratory judgment (Count Two), and
attorney's fees (Count Seven). Id. Plastic Plate
counter-claimed, alleging a single breach of contract claim.
(Doc. 25, Amended Counter-Claim). Jurisdiction is proper
under 28 U.S.C. § 1332. This case is before the
undersigned on consent of the parties pursuant to 28 U.S.C.
§ 636(c) and Fed. Civ. R. 73. (Doc. 18).
pending before the Court is Plastic Plate's Motion for
Judgment on the Pleadings as to its counter-claim. (Doc. 38).
Revere opposed (Doc. 39), and Plastic Plate replied (Doc.
40). Also pending is Revere's Motion to Strike (Doc. 41),
to which Plastic Plate responded (Doc. 42).
reasons stated below, Revere's Motion to Strike (Doc. 41)
is GRANTED and Plastic Plate's Motion for Judgment on the
Pleadings as to its counter-claim (Doc. 38) is DENIED.
the facts in the Complaint (Doc. 1), and the Amended
Counter-Complaint (Doc. 25), in the light most favorable to
the non-moving party Revere, the background of this case is
At the time litigation began, Revere had been a specialty
plastics manufacturer for over 50 years. (Doc. 1-1, at
¶11). At some point in 2015, Revere entered into a
supply contract relationship with the Whirlpool Corporation
(“Whirlpool”), for certain component parts
relating to Whirlpool's washers and dryers known as the
“Alpha Program”. Id. at ¶12-13. As
part of the contract, Whirlpool directed that Revere use
Plastic Plate as a supplier for certain component parts
within the Alpha Program. Id. at ¶12. Revere
then incorporated these component parts into larger
assemblies which were sold to Whirlpool. (Doc. 25, at
2015, Plastic Plate provided Revere with four separate quotes
for these parts. (Doc. 6-1, at 4, 7, 8-9). Each quote had
twenty “Terms/Conditions/Assumptions” listed at
the bottom. Id. The following were included therein:
2. Any purchase order issued against this quotation will be
considered as acceptance and acknowledgement of our quoted
terms & conditions.
3. All pricing is based on Plastic Plate, LLC being awarded
the complete production chrome volume for the Washer/Dryer
Trim Ring/Handle and the sourcing of the tooling package
* * * 19. PPL commits to firm pricing hold for 5 years at
start of first production shipments, assuming that the above
stated production volumes meet a minimum EAU of at least 80%
(Annual Customer Accepted Part Volumes: Washer Trim Ring - at
least 140k; Dryer Trim Ring - at least 130k; Door Handle - at
least 260k). If volumes do not meet this level, pricing will
need to be reviewed.
Blanket Purchase Orders
October 2015, Revere issued three Blanket Purchase Orders for
the Alpha Program parts (“2015 Purchase Orders”).
(Doc. 1-1, at ¶13); see also Doc. 1-1, at 21-29
(Exhibit 1). On the face of each, Revere included the
BLANKET P.O. ISSUED FOR FUTURE RELEASES-LIFE OF
PROGRAM. . . IN ACCORDANCE WITH OEM CONTRACTS, PRICE CHANGES
WILL ONLY BE ALLOWED AT THE BEGINNING OF THE QUARTER OF
CALENDAR YEAR OR AS CONTRACTS PERMIT.
(Doc. 1-1, at 21, 24, 27). Each also references Plastic
Plate's quote number “15-R602G”.
Id.; see also Doc. 6-1, at 9
(quote 15-R602G). Additionally, each Purchase Order had two
pages of “Terms and Conditions” attached.
See Doc. 1-1, at 21-29 (“Revere Industries,
LLC Purchase Order General Terms and Conditions”)
(capitalization altered). These “Terms and
Conditions” (identifying Revere as “Buyer”,
and Plastic Plate as “Seller”) were incorporated
by reference and contained the following relevant provisions:
1. OFFER AND ACCEPTANCE. This Purchase Order
constitutes an offer by Revere Industries, LLC (the
“Buyer”) to purchase from the addressee (the
“Seller”) the goods or services identified on the
Purchase Order on the terms and conditions set forth below.
This is not a firm offer, and Buyer may revoke it at any time
prior to acceptance by Seller. Seller's acknowledgment of
the Purchase Order, shipment of any goods, or commencement of
work pursuant to the Purchase Order shall be deemed an
acceptance of this Purchase Order and all its terms and
* * *
3. ATTACHMENTS. Documents designated by
Buyer in the body of the Purchase Order, including
supplemental terms and conditions, if any, are incorporated
by reference the same as if set out in full therein.
4. CHANGES. The Buyer reserves the right at
any time to issue a written change order or amendment to the
Purchase Order concerning any of the following: (a)
specifications, drawings, and data incorporated in the
Purchase Order where the items to be furnished are to be
specially manufactured for the Buyer; (b) quantity; (c)
methods of shipment or packaging; (d) place of delivery, (e)
time of delivery; or (f) any other matters affecting this
5. TERMINATION. Buyer may terminate the
Purchase Order for its convenience, in whole or in part, at
any time prior to shipment by (written or electronic) notice
to Seller. ***
* * *
16. BUYER'S TERMS AND CONDITIONS APPLY.
No. modification or release from this Purchase Order shall be
binding unless agreed to in writing by the parties and
specifically labeled as a modification or release. Unless
specifically agreed to otherwise by Buyer and Seller, these
terms and ...