The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action in which plaintiff Corning ("plaintiff"), a maker of glass laboratory products, is suing its former customer, VWR ("defendant"), for breach of contract, unfair competition, and trademark infringement. Now before the Court is defendant's motion [#9] to dismiss plaintiff's breach of contract claim, and plaintiff's cross-motion [#15] to amend the complaint. For the reasons that follow defendant's application is granted and plaintiff's cross-motion is denied.
Defendant is "a leading worldwide distributor of scientific equipment and supplies, including laboratory glassware." (Def. Memo [#9-3] p. 2). Plaintiff's breach of contract claim arises from a document which the parties executed in 2001, entitled "Memorandum of Agreement Corning/VWR Glass Standardization Plan" ("the memorandum"). The memorandum states, in relevant part:
Corning Incorporated and VWR International have agreed to the standardization*fn1 of Corning's Pyrex reusable glass product line within VWR's North American distribution channel. This agreement will replace the corporate performance rebate program for reusable glass that is currently intact. This agreement will be valid for seven (7) years, effective January 1, 2002 and subject to the terms and conditions stated.
The memorandum then goes on to describe two different "standardization programs," a "Selective Standardization Program" ("Selective Program") and a "Full Standardization Program" ("Full Program"). As to the first, the "Selective Program," the memo states, in relevant part:
Corning will pay VWR an annual rebate in the amount of 5.0% of the total purchase price for Corning's reusable glass product line in consideration for the following. Additionally, Corning will generate an annual rebate of $251,000 as compensation for sales of Corning's disposable glass products (DS) and OEM products (tubing and rod).
VWR will catalog and promote only Corning's Pyrex reusable glass product line for all high volume "A" items, and select lower volume items.
VWR will carry a level of Corning reusable glass inventory sufficient to service the market consistent with VWR's customer service objectives. VWR, together with Corning, will develop a long-term inventory management plan.
All VWR systems, inventory management and procurement processes will be modified to reflect Corning as the first product for the pre-determined items. Customers with VWRPlus will have access to glassware from other companies.
VWR and Corning will mutually develop and execute a communication plan and conversion plan of non-Corning product to Corning.
VWR will provide Corning with Point of Sale detail going forward and retroactive to January 1, 2001, including detail on non-Corning products being standardized.
VWR will provide Corning with a monthly forecast and reasonable notice of incremental changes on a timely basis. (Memorandum Agreement p. 1). The memo then discusses ...