The opinion of the court was delivered by: VICTOR MARRERO, District Judge
In this contract dispute, one commodities trader, defendant Cedar
Petrochemicals, Inc. ("Cedar"), failed to deliver a certain shipment of
methanol to another commodities trader, plaintiff Tradax Energy, Inc.
("Tradax"). Primarily at issue in the parties' cross motions for summary
judgment is whether there is a genuine issue of fact to suggest that
Tradax had repudiated the contract, thereby relieving Cedar's obligation
to deliver the methanol. The Court concludes that, as a matter of law,
Tradax did not repudiate. Cedar's motion is therefore denied.
Tradax's motion is granted only in part, however, because certain
documents necessary to proving Tradax's damages are not admissible.
Because that evidence suffers from a relatively technical defect, the
Court will permit Tradax to supplement its submissions. I. BACKGROUND*fn1
In September 2002, Tradax contracted to purchase 10,000 barrels of
methanol from Cedar, to be delivered to Houston, Texas, on a specific
date sometime in January 2003, which Tradax would later specify, upon at
least five days' notice. Cedar refused to deliver the methanol, which
Tradax ultimately obtained from another source. By its summary judgment
motion, Tradax seeks to recover from Cedar $184,380, an amount equal to
the difference in the contract price and the price Tradax asserts it
actually paid for the methanol. Cedar's cross motion asserts that Tradax
repudiated the contract in a December 2002 phone call, and Cedar seeks
judgment in its favor. The legal effect of that phone call is the central
issue to both motions.
In the phone call at issue, which occurred sometime in December 2002,
Tradax president Walter Huybregts ("Huybregts") spoke with Cedar
bookkeeper Linda Plevrites ("Plevrites") regarding a certain Texas state
tax form. Plevrites's account of the phone call, which Huybregts
disputes, is as follows:
Q: This one telephone call that you had, who
called who? A: The phone rang, I answered. It was Tradax. Q:
Who at Tradax was on the phone?
A: I don't recall. He probably said his name, I
Q: It was a man? A: It was a man.
Q: And what exactly was said in this conversation
maybe first of all, how long
was the conversation you had?
A: Oh, three minutes.
Q: And what, to the best of your memory, exactly
was said in that conversation?
A: Well, I can't tell you exactly, but this man
asked for our Texas sales certificate, or
whatever it's called, the certificate relating
to sales tax. And I told him we didn't have it
yet to give to him. And he was very annoyed
because they needed it and I knew that we were
going to get it, we hoped soon, but I had no
idea. And, you know, he urging me to
get on the ball and et cetera, and said that if
we didn't get it if we didn't get it to
them, then they wouldn't pay us.
Q: Did he use those words?
Q: And did you tell him you would get it to him?
Q: Do you remember anything else about the
A: No. He wanted that certificate and I knew we
could get it to him at some point and told him
Q: Did the person at Tradax say he was cancelling
the contract any contract? A: No.
Q: Did he say he was repudiating any contract?
Q: Do you know at any time, in connection with any
contract Tradax and Cedar had, whether Tradax
refused to pay on a contract?
A: I'm not aware of any anything related
(Huybregts Decl. Ex. 16, at 25-27)
Plevrites immediately informed her supervisors of the conversation, and
Cedar asserts it then considered the contract cancelled. However, Cedar
never alerted Tradax that it (Cedar) considered the contract cancelled
until after Tradax e-mailed Cedar on January 7, 2003, to specify a
delivery date of January 13. On the same day as Tradax's email, Cedar's
president sent Tradax a letter indicating, for the first time, that Cedar
considered the contract to have been cancelled:
When you called our office the first time and
advised that you were not going to pay us for this
transaction unless we had a tax exemption
certificate, which we did not have, we viewed your
refusal to pay as an anticipatory breach of the
(Huybregts Decl. Ex. 13)
The sales tax certificate referenced in the phone call and Cedar's
letter does not directly relate to the contract at issue here. Under
Texas law, a seller may avoid charging a buyer the otherwise applicable
state sales tax if the buyer furnishes the seller with a Texas Resale Certificate, which states
that the items purchased are for resale. Tradax had previously sold
commodities to Cedar (the reverse of the transaction at issue here), and
Tradax wanted Cedar to fill out a Texas Resale Certificate to reflect
that Tradax acted lawfully in not charging Cedar sales tax for those
After her conversation with Huybregts, Plevrites filled out the
one-page Texas Resale Certificate form for Tradax and dated it December
15, 2002. For reasons which are unclear, Plevrites never obtained the
required signature from the proper Cedar official, nor did she mail the
form to Tradax.
II. SUMMARY JUDGMENT STANDARD
The Court may grant summary judgment only "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c). The Court must first look to
the substantive law of the action to determine which facts are material;
"[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary
judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Even if the parties dispute material facts, summary judgment will be granted unless the
dispute is "genuine," i.e., "there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that
party." Id. at 249.
Where the moving party would bear the burden of persuasion at trial,
that party must first make a prima facie case by "support[ing]
its motion with credible evidence . . . that would entitle it to a
directed verdict if not controverted at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 331 (1986). Where the non-moving party would
bear the burden of persuasion at trial, the moving party can make its
prima facie case by either "submit[ting] affirmative evidence
that negates an essential element of the nonmoving party's claim" or
"demonstrat[ing] to the Court that the nonmoving party's evidence is
insufficient to establish an essential element" of the claim.
After such a prima facie showing, the non-moving party must
respond with "specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). To this end, "[t]he non-moving party may
not rely on mere conclusory allegations nor speculation, but instead must
offer some hard evidence showing that its version of the events is not
wholly fanciful." D'Amico. v. City of New York, 132 F.3d 145,
149 (2d Cir. 1998). In other words, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
Throughout this inquiry, the Court must view the evidence in the light
most favorable to the non-moving party and must draw all inferences in
favor of that party. See Hanson v. McCaw Cellular ...