The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Atronic International, GmbH ("Atronic"), brought this action against defendant SAI Semispecialists of America, Inc. ("SAI"), claiming breach of contract regarding the sale of computer semiconductor chips. Plaintiff moves for partial summary judgment, seeking a finding from the Court that defendant breached its contractual obligations as a matter of law. Defendant cross-moves for summary judgment, and plaintiff also moves to strike evidence from defendant's summary judgment evidence. For the reasons stated below, plaintiff's motion to strike is granted, and both parties' motions for summary judgment are denied in their entirety.
The following facts are undisputed, unless otherwise indicated. This action concerns the sale of goods, specifically computer semiconductor chips known as Texas Instruments TMS 34020 AGBL-32 graphics processors ("TI Graphics Processors"). (Pl.'s Rule 56.1 Statement ("Pl.'s 56.1") ¶ 1.)*fn1 SAI is an electronics distributor which holds itself out as specializing in the sale of obsolete and hard-to-find electronics parts. (See Declaration of John J. Witmeyer III, dated October 12, 2005 ("Witmeyer 10/12/05 Decl."), Ex. A, at ¶ 2.) Atronic manufactures and sells video gaming equipment, which incorporates electronic components. (Compl. ¶ 5.) SAI and Atronic have done business together since 1997. (See Def.'s Rule 56.1 Statement ("Def.'s 56.1") ¶ 1.).
On or around September of 2001, Tom Kelly, a SAI sales representative, placed a call to a product manager within Atronic's Research and Development Department. (See Pl.'s 56.1, ¶ 2.) Kelly asked the Atronic manager if there were any components that Atronic had difficulty obtaining. (See id.) In response to an inquiry regarding TI Graphics Processors, Kelly sent a written quotation, dated September 18, 2001, stating that he could supply 50,000 TI Graphics Processors, at $69 each. (Atronic Req. Admit ¶¶ 1A & 2(1), Witmeyer 10/12/05 Decl., Ex. L; admitted, see Witmeyer 10/12/05 Decl., Ex. M.) The parties negotiated a potential transaction through September and October of 2001. (See Pl.'s 56.1, ¶ 4.)
On October 18, 2001, Atronic sent a written purchase order to SAI, numbered 4500166782, via e-mail. (See Pl.s' 56.1, ¶ 5.) The purchase order indicates that Atronic was ordering 20,000 TI Graphics Processors at $69 each. (See Witmeyer 10/12/05 Decl., Ex. I.) The order also provides a delivery schedule of 32 TI Graphics Processors per month. (See id.) The order includes language about the first shipment date, stating that the first shipment was to be made on April 1, 2002, or before, if requested by Atronic with 14 days notification. (See id.) Finally, the order includes language regarding a potential option for Atronic to purchase additional TI Graphics Processors at the contract price:
Atronic has the right to purchase additional 20.000 Graphic Processors . . . as specified above under the same conditions until December 31st [sic], 2001.
SAI responded to the purchase order by requesting a change in the start date for delivery of the components. (See Pl.'s 56.1 ¶ 6.) Kelly faxed a copy of the October 18 purchase order back to Atronic, with the following hand-written notations: (1) he wrote the number of the purchase order at the top; and (2) he circled the clause describing the start date as being April 1, 2002, and wrote "To Be Removed!" next to it. (See Witmeyer 10/12/05 Decl., Ex. I.) In response, Atronic wrote an e-mail, dated October 19, 2001, attaching a revised purchase order. (See Witmeyer 10/12/05 Decl., Ex. J.) The introduction of the e-mail discussed the alteration of the start date:
although it does not match our material demands, we have to accept the fact that You [sic] have to start shipping as early as November of 2001. As discussed please find below an updated version of the purchase order. Our order # is 4500166782. Please confirm the acceptance of the order by email until the end of the day.
(Id.) The attached purchase order indicates a first shipment date of November 2001, rather than April 1, 2002. (See id.) Otherwise the terms are identical to the one included in the prior version, including quantity (20,000), price ($69 per unit), delivery schedule (1,500 per month) and a verbatim option clause (option to purchase an additional 20,000 units under the same conditions by December 31, 2001). (See id.)
Later that day, Jochen Meyer, Vice President for Global Operations at Atronic emailed SAI, stating in relevant part: "Since I have not received Your [sic] order confirmation yet, I wanted to ask You [sic] to call in case of problems." (See Pl.'s 56.1, ¶ 8.) SAI responded by e-mail, stating in relevant part: "There are no problems. Everything is on schedule." (See id., ¶ 9.) In November 2001, SAI shipped 1,500 TI Graphics Processors to Atronic. (See id., ¶ 10.)
Although SAI does not dispute that the aforementioned communications took place, it alleges that the agreement between the parties included the condition that the TI Graphics Processors were subject to "prior sale," meaning that they would provide them at the agreed upon price as they became available on the market. Kelly testified at his deposition that the TI Graphics Processors were not in possession of SAI and were subject to prior sale. (See Def.'s 56.1, ¶ 2.) Further, Christopher Conner of SAI testified at his deposition that he told Atronic that they refused to sign the contract with the terms and conditions e-mailed to them, and that they would treat it as an open purchase order that they would use their best efforts to fulfill. (See Def.'s 56.1, ¶ 4.) Atronic disputes these assertions, noting evidence in the record in which Hartwig Schuemann, Atronic's purchase manager at the time, testified that nobody told him that the parts were subject to prior sale, as well evidence in the record that Connor admitted that he did not recall speaking to anyone at Atronic in October of 2001. (See Plaintiff's Responses to Defendant's 56.1 Statement, ¶¶ 2, 4.)
Atronic claims that in mid-December, 2001, Schuemann exercised the option on the additional 20,000 TI Graphics Processors. (See Declaration of Hartwig Schuemann ("Schuemann Decl."), ¶ 3.) SAI disputes the fact that Schuemann exercised the option in December of 2001, citing, inter alia, an e-mail sent by Schuemann to SAI on February 27, 2002, wherein Schuemann stated that 20,000 TI Graphics Processors were ordered the previous year, and inquired as to whether the option from the agreement could be exercised to order 10,000 additional TI Graphics Processors.*fn2 (See Declaration of Peter G. Goodman ("Goodman Decl."), Ex. I.)
As of November 2002, SAI had delivered less than 20,000 TI Graphics Processors to Atronic. (See Pl.'s 56.1, ¶ 12.) By e-mail dated January 7, 2003, Helmut Dorst, SAI's Senior Buyer Vice President, informed Atronic that "[a]s per telecom 7th January 2003, please be advised that we can fully support balance of order on video ram only. Regarding processor, we cannot at this time advise any exact delivery schedules due to unforeseen market circumstances." (Witmeyer 10/12/05 Decl., Ex. O.)
SAI ultimately delivered only two-thirds of the 20,000 TI Graphics Processors from the original order. (See Pl.'s 56.1, ¶ 15.)
This case was re-assigned to the undersigned from the Honorable Thomas C. Platt on February 23, 2006. Oral argument was held on ...