The opinion of the court was delivered by: Hon. William J. Martini
In this action, Plaintiff Quanquing (Changshu) Cloth-Making Co. Ltd. seeks to confirm an arbitration award, with prejudgment interest, in the amount of $337,806.91, as determined by the Chinese International Economic and Trade Arbitration Commission ("CIETAC"), against Defendant Pilgrim Worldwide Trading, Inc. under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"*fn1 ). The dispute relates to Defendant's alleged purchase from Plaintiff of men's suits under the terms of an agreement which purportedly provided for arbitration.
Both parties have moved for summary judgment. For the reasons elaborated below, the Court will GRANT Defendant's motion for summary judgment, and the Court will DENY Plaintiff's motion for summary judgment.
II. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
The general chronology of events does not appear to be disputed.
Pilgrim, an entity with facilities in New Jersey and its President Sei Ho Go ("Go") had an established business relationship with Han Joo Kim ("Kim"), who operated M.A. Trading International ("M.A.") and Tae Han Trading ("THT"), two businesses located in South Korea. In or around September 2005, Pilgrim issued three purchase orders ("POs") to MA.
Thereafter, Kim notified Go that delivery would be delayed. New contractual terms were agreed to and Kim sent a "Sales Confirmation" to Go in November 2005.*fn2 The Sales Confirmation from Kim to Go referred to "Quanqing (Changshu) Cloth Making Co., Ltd." Neither Go nor anyone else at Pilgrim signed the Sales Confirmation. Nor did Kim ask for anyone to sign it. Nothing in the Sales Confirmation on its face indicates that Kim was an agent or representative of Pilgrim. Go understood the reference to Quanqing in the Sales Confirmation to refer to a subcontractor Kim was making use of. The Sales Confirmation provides for arbitration of disputes by CIETAC. In December 2005, Pilgrim issued revised POs to MA.
Subsequently the garments were delivered and Pilgrim made payments to Kim's entities, MA or THT. Kim also directed that some payments should be made to "Changshu Winprofit Ime and Exp Co." and Pilgrim complied with those directions. Kim died in 2007.
On or about March 5, 2008, CIETAC sent Pilgrim notice of the arbitration proceedings. Plaintiff claims the notice was in Chinese, but that it also came with an English translation. Defendant claims that it only received documents in Chinese, that neither Go nor anyone at Pilgrim speaks Chinese, and that it ignored those documents. CIETAC held the proceedings in the absence of Pilgrim and, not surprisingly, found for Plaintiff.
Before the Court are the parties' cross-motions for summary judgment.
Summary judgment is appropriate if the "if the pleadings, the discovery [including, depositions, answers to interrogatories, and admissions on file] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) ...