Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Precision Hydraulic Cylinders, Inc. v. Manufacturing Technology, Inc.

United States District Court, E.D. North Carolina, Southern Division

September 13, 2019

PRECISION HYDRAULIC CYLINDERS, INC., Plaintiff,
v.
MANUFACTURING TECHNOLOGY, INC., Defendant.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant's partial motion to dismiss for failure to state a claim upon which relief may be granted, directed towards plaintiff's claims sounding in tort, pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 13). The issues raised have been fully briefed, and in this posture are ripe for ruling. For the reasons that follow, defendant's motion to dismiss is granted in part and denied in part.

         STATEMENT OF THE CASE

         Plaintiff, a North Carolina corporation, commenced this action on October 12, 2018, by filing complaint in the General Court of Justice for New Hanover County, asserting a myriad of tort and contract-based claims. Plaintiff's contract claims include breach of express warranties, breach of implied warranties, and breach of contract claims. The tort-based claims which are the subject of the instant motion include claims for negligence, negligent misrepresentation, fraudulent concealment, and unfair and deceptive trade practices pursuant to North Carolina General Statute § 75-1.1 (“UDTP”). Plaintiff seeks compensatory and punitive damages as well as treble damages pursuant to plaintiff's UDTP claim. On November 15, 2018, defendant, an Indiana corporation, removed the action to this court, and on December 21, 2018, defendant filed the instant motion, seeking dismissal with prejudice of plaintiff's tort claims, as barred by North Carolina's economic loss rule.

         STATEMENT OF FACTS

         The facts in the complaint may be summarized as follows.

         A. Plaintiff's Business

         Plaintiff specializes in the supply of hydraulic cylinders to global equipment manufacturers. Over the last several years, one of plaintiff's biggest customers has been JCB, a multinational construction equipment manufacturer. Plaintiff provides cylinders for use in JCB's machines.

         Plaintiff relies on specialty experts in friction welding to machine the cylinders it supplies to JCB from rods and eyes plaintiff supplies. Plaintiff contracts with outside firms to friction weld the rods and eyes together.

         B. Defendant Agrees to Develop Small Platform Weldments[1]

         On or around May 5, 2013, plaintiff's vice president of supply chain management, Pete Meriam (“Meriam”), contacted defendant through defendant's website expressing interest in having defendant perform friction welding for plaintiff. Defendant's website states defendant offers “friction welding for any application, ” and at all relevant times, defendant was a merchant of friction weldments. (Compl. (DE 1-1) ¶ 8).

         Defendant's business development manager Kenn Frank (“Frank”) responded via email on August 22, 2013. Frank told Meriam that to have “an informed answer” to Meriam's question, Frank would need drawings of the parts plaintiff was considering for friction welding, including the material specifications, to which Frank responded, “[f]rom these pieces of information, we will be able to provide advice on the best suited welding technology, ” also stating “we will be able to provide a product quality and consistency needed for your application.” (Id. ¶ 9).

         On August 23, 2013, Meriam sent Frank drawings for the rod assembly. This assembly featured a rod with a 45 millimeter diameter, also known as the “small platform” assembly. The drawings specified the materials for both the rod and the eye for the small platform assembly. The rod was to be made of a medium-carbon steel, AISI 1045 steel, while the eye was either to be made of a low-carbon steel, AISI 1018 steel, or AISI 1045 steel.

         Based on these drawings, defendant sent a proposal to plaintiff on September 9, 2013, for development of the small platform weldments to be used in the small platform assembly. Defendant offered to take sample sets of rods and eyes for “process development and optimization.” (Id. ¶12). Attached to defendant's proposal was a document titled “Terms and Conditions, ” wherein defendant disclaimed any warranty, express or implied, including implied warranties of merchantability or fitness for a particular purpose, and which included limitation to defendant's liability for failures of its welds. (Id.).

         On September 17, 2013, Meriam contacted Frank via email and requested additional information about the testing defendant would perform on the weldments. Frank responded on September 18, 2013, stating “our weld development process does testing, including weld evaluation, sectioning and bend testing.” (Id. ¶ 13).

         On October 3, 2013, plaintiff issued a purchase order (“October 3, 2013 PO”) for the development of the small platform weldments. Under the section, “TERMS, ” plaintiff stated as follows: “PRECISION HYDRAULIC CYLINDERS, INC. TERMS AND CONDITIONS APPLY.” (Id. ¶ 14). At the time, plaintiff's terms and conditions provided in relevant part as follows:

Buyer's acceptance of delivery of products manufactured hereunder shall not relieve Seller of any of its warranty or other obligations hereunder. Payment shall not constitute acceptance.
Seller warrants that all products, materials or work covered by this order will conform to the specifications, drawings, samples, or other description furnished or adopted by Buyer, and will be of good material and workmanship and free from defects. If not ordered to Buyer's design Seller further warrants that they will be merchantable and fit for the purpose intended. Seller will indemnify and save Buyer harmless from any loss, actions, expense, claims, liabilities or damages, including consequential damages incurred as a result of Seller's failure to furnish products, materials or work as warranted.
THIS PURCHASE ORDER SHALL BE A BINDING CONTRACT ACCORDING TO ITS TERMS UPON ACCEPTANCE EITHER BY SELLER'S ACKNOWLEDG[]MENT OR BY DELIVERY TO BUYER OF ALL OR PART OF THE ORDER. NO ADDITIONAL OR DIFFERENT TERMS OFFERED BY THE SELLER SHALL BE OR BECOME PART OF THIS ORDER NOR SHALL THIS ORDER BE MODIFIED WITHOUT BUYER'S PRIOR EXPRESS WRITTEN APPROVAL. Any waiver of strict compliance with any provision hereof shall not be deemed to constitute a waiver of that or any other provision in the future. THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES AND THERE ARE NO TERMS OR CONDITIONS OTHER THAN THOSE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN.

(Id. ¶ 15).

         With the October 3, 2013 PO, plaintiff also sent its supplier quality requirements, which provide, under the “Quality Guarantee” Section, the following regarding “General Purchase Conditions”: “Vendor warrants that all products, materials or services covered by an order will conform to specifications and that production is to latest revision drawings and specified engineering tolerances or other description furnished by us and will be free from defects in material and workmanship.” (Id. ¶ 16).

         Plaintiff alleges that defendant did not reject or counter plaintiff's terms and conditions or supplier quality requirements and accepted both by performing pursuant to the October 3, 2013 PO.

         C. Defendant Agrees to Develop Large Platform Weldments

         On October 8, 2013, Meriam emailed Frank to request a quote from defendant to develop new rod weldments. The rods on these assemblies had diameters of 50, 60, and 65 millimeters, also known as the “large platform” assemblies. Meriam attached to his email to Frank the drawings for the large platform assemblies, including the drawings for large platform weldments to be used in the large platform assemblies with part nos. 3116205 and 3116226.[2]

         On December 13, 2013, defendant submitted a proposal to plaintiff to “develop and optimize” the large platform weldments whose materials were specified in the drawings Meriam sent Frank on October 8, 2013. (Id. ¶ 22). Specifically, defendant offered to “develop and optimize weld parameters for each rod diameter-to-eye combination” specified, including for weldment Nos. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.