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Olin Corp. v. E.I. Dupont De Nemours and Co.

March 26, 2006


The opinion of the court was delivered by: William M. Skretny United States District Judge



Plaintiff Olin Corporation ("Olin") commenced this action on February 14, 2005 and filed an Amended Complaint on March 24, 2005, asserting contract and negligence claims against Defendant E.I. DuPont Nemours and Company ("DuPont") and a breach of contract claim against Defendant Nationwide Boiler, Inc. ("Nationwide").

Presently before this Court is Defendant DuPont's Motion to Dismiss the Amended Complaint and to Compel Arbitration "pursuant to the Federal Rules of Civil Procedure 12(b) and the Federal Arbitration Act." (Docket No. 7). For the reasons stated below, DuPont's Motion is granted.


A. Motion to Dismiss

Although DuPont purports to bring its motion pursuant to FED. R. CIV. P. 12(b), it declines to state the subpart it relies on or otherwise identify the basis for the relief requested. This Court presumes DuPont seeks to challenge the Amended Complaint under Rule 12(b)(1) (lack of subject matter jurisdiction) and/or Rule 12(b)(6) (failure to state a claim).

When reviewing a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). A complaint should be dismissed "'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 346 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed. 2d 1 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed. 2d 59 (1984)). However, where, as here, a plaintiff references written documents in the complaint, the court may take the documents into consideration in ruling on a Rule 12(b)(6) motion even if they are not attached to the complaint and made a part thereof under Rule 10(c). Sazerac Co., Inc. v. Falk, 861 F. Supp. 253, 257 (S.D.N.Y. 1994) (citing Cortec Indus., Inc. v. Sum Holding L. P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992); I. Meyer Pincus & Assoc., P.C. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir. 1991)). If the documents referenced in the complaint contradict the facts alleged by the plaintiff, the documents control and the court need not accept as true the plaintiff's allegations. See Feick v. Fleener, 653 F.2d 69, 75 & n.4 (2d Cir. 1981).

The scope of materials that may be considered is even more expansive when the court is asked to resolve a question of subject matter jurisdiction. Then, a court may consider any evidence that has been submitted, including affidavits, to determine whether subject matter jurisdiction exists. Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993) (citations omitted).

B. Motion to Compel Arbitration

When a motion to compel arbitration is brought under the Federal Arbitration Act ("FAA"), 9 U.S.C. § 4,*fn1 the court applies a standard similar to that applicable to a motion for summary judgment. Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003). When such a motion is opposed on the ground that no agreement to arbitrate has been made between the parties, a district court should give the opposing party the benefit of all reasonable doubts and inferences that may arise. Doctor's Associates, Inc., v. Distajo, 944 F. Supp. 1010, 1014 (D. Conn. 1996), aff'd, 107 F.3d 126 (2d Cir. 1997), cert. denied, 522 U.S. 948, 118 S.Ct. 365, 139 L.Ed. 2d 284 (1997).

Having reviewed the documents referenced in the Amended Complaint, the parties' affidavits, and the additional documents attached thereto, this Court finds that all are potentially subject to review in connection with DuPont's motion to dismiss and to compel arbitration.


A. Facts

During the time period at issue, Olin operated a chemical manufacturing facility on property owned by DuPont. (Am. Compl., ¶¶ 6-9; Affidavit of James K. Leader, sworn to Apr. 6, 2005 (the "Leader Aff."), ¶ 4). The parties entered into a Services Agreement, dated February 7, 1997 (the "Services Agreement"), pursuant to which DuPont supplied various services to Olin's manufacturing operation for a fee. (Am. Compl., ¶ 10; Leader Aff., ¶ 4, Ex. B; Affidavit of Hassan Arabghani, sworn to May 17, 2005 (the "Arabghani Aff."), ¶ 6) One of items supplied under the Services Agreement was Steam Service. (Am. Compl., ¶ 11; Leader Aff., ¶ 4; Arabghani Aff., ¶ 7).

In April 2002, DuPont gave Olin notice of its intent to terminate some of the services it provided under the Services Agreement, including Steam Service, and subsequently identified June 5, 2002 as the service termination date. (Arabghani Aff., ¶¶ 9, 10, 12, 13, Exs. A-C).

The parties met on May 2, 2002, at which time DuPont proposed terms for a new agreement covering the provision of Steam. (Id., ¶ 11). On July 1, 2002, the parties executed a "Term Sheet" which set forth the terms for DuPont's continued provision to Olin of Steam, among other things. (Leader Aff., Ex. B; Arabghani Aff., ¶ 14, Ex. C). The Term Sheet specified May 31, 2002 as the expiration date for billing under the Services Agreement, and June 1, 2002 as the commencement date for the provision of Steam under the Term Sheet. (Leader Aff., Ex. B, § 1.(a)). From June 1, 2002 through at least August 31, 2003, DuPont continued to provide Steam to Olin and to bill Olin under the terms of the new agreement.*fn2 (Am. Compl., ¶¶ 12-13; Leader Aff., Ex. C; Arabghani Aff., ¶¶ 8, 16).

Olin's claims in this action relate to DuPont's purported failure to supply reliable, uninterrupted steam in sufficient quantity and at a sufficient pressure to meet Olin's needs, pursuant to its duties under the new agreement. (Am. Compl., ¶¶ 13, 20, 26, 31, 35).

Specifically, Olin alleges that there were sixty-six Steam interruptions between June 2002 and March 2003 which impacted the quality and operability of its ...

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