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Koch Materials Co. v. Shore Slurry Seal

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


June 12, 2002

KOCH MATERIALS COMPANY, PLAINTIFF,
v.
SHORE SLURRY SEAL, INC., AND ASPHALT PAVING SYSTEMS, INC., DEFENDANTS.
SHORE SLURRY SEAL, INC., COUNTERCLAIM PLAINTIFF,
v.
KOCH MATERIALS COMPANY, COUNTERCLAIM DEFENDANT.

The opinion of the court was delivered by: Hon. Stephen M. Orlofsky

ORDER

This matter having come before the Court on the Motion of Plaintiff and Counterclaim Defendant, Koch Materials Company, for Partial Summary Judgment, pursuant to Fed. R. Civ. P. 56, and on the Cross-Motions for Summary Judgment of Defendants, Shore Slurry Seal, Inc. and Asphalt Paving Systems, Inc., Stephen B. Nolan, Esq., Stradley, Ronon, Stevens & Young, LLP, John R. Ferguson, Esq., Jonathan P. Guy, Esq., L. Misha Preheim, Esq., Swidler Berlin Shereff Friedman, LLP, Michael A. Ceramella, Esq., Koch Industries, appearing on behalf of Plaintiff and Counterclaim Defendant, Koch Materials Company, and Neil C. Schur, Esq., Carl W. Hittinger, Esq., Donald E. Wieand, Jr., Esq. Stevens & Lee, P.C., appearing on behalf of Defendant and Counterclaim Plaintiff, Shore Slurry Seal, Inc., and Frederic L. Shenkman, Esq., Howard E. Drucks, Esq., Cooper Perskie April Niedelman Wagenheim & Levenson, appearing on behalf of Defendant, Asphalt Paving Systems, Inc.; and,

The Court having considered the papers submitted by counsel for Plaintiff in support of and in opposition to the motions and the papers submitted by counsel for Defendants in opposition and support; and,

For the reasons stated in the Opinion filed concurrently with this Order, IT IS, on this 12th day of June, 2002, hereby ORDERED that:

1. The Motion of Plaintiff and Counterclaim Defendant, Koch Materials Company, for Partial Summary Judgment, is GRANTED IN PART and DENIED IN PART; and,

2. The Cross-Motion of Defendant and Counterclaim Plaintiff, Shore Slurry Seal, Inc., for Summary Judgment, is DENIED; and,

3. The Cross-Motion of Defendant, Asphalt Paving Systems, Inc., is GRANTED IN PART and DENIED IN PART; and,

4. The Motion of Plaintiff and Counterclaim Defendant, Koch Materials Company, for Partial Summary Judgment, is GRANTED on the question of whether the Defendant and Counterclaim Plaintiff, Shore Slurry Seal, Inc., repudiated the contracts between the two parties; and,

5. The Motion of Plaintiff and Counterclaim Defendant, Koch Materials Company, for Partial Summary Judgment, is GRANTED IN PART on the question of remedies available under the contracts; specifically, Plaintiff may terminate the Exclusive Supply Agreement between the parties, and, if Plaintiff elects to treat the Defendant's repudiation as a breach, Plaintiff may seek any lawful remedy for breach of the Sublicense Agreement and for breach of the Exclusive Supply Agreement other than those relating to minimum volume, however, Plaintiff's remedy for breach of the minimum volume provision of the Exclusive Supply Agreement is limited to payment for any shortfalls in the minimum purchase requirement under that contract; and,

6. The Motion of Plaintiff and Counterclaim Defendant, Koch Materials Company, for Partial Summary Judgment, is DENIED in all other respects; and,

7. The Cross-Motion of Defendant, Asphalt Paving Systems, Inc., is GRANTED as to the claim of the Plaintiff and Counterclaim Defendant, Koch Materials Company, that Asphalt is an alter-ego of the Defendant and Counter-Claim Plaintiff, Shore Slurry Seal, Inc.; and,

8. The Cross-Motion of Defendant, Asphalt Paving Systems, Inc., is DENIED in all other respects.

STEPHEN M. ORLOFSKY United States District Judge

20020612

© 2002 VersusLaw Inc.



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