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Deepstar Marine, Inc. v. Xylem Dewatering Solutions, Inc.

United States District Court, D. New Jersey

July 30, 2014


Robert P. Snyder, Esq., ROBERT P. SNYDER & ASSOCIATES, King of Prussia, PA, Attorney for Plaintiff.

David Michael Fabian, Esq., TRAFLET & FABIAN, ESQS., Carriage Court Two, Morristown, NJ, Attorney for Defendant.


JEROME B. SIMANDLE, Chief District Judge.


This matter comes before the Court on Defendant Xylem Dewatering Solutions, Inc.'s[1] motion for partial summary judgment. [Docket Item 18.] The West End Boat Club ("WEBC"), which is not a party to this action, hired Plaintiff Deepstar Marine, Inc., to dredge its marina on the Delaware River, and Plaintiff rented hydraulic pumps and other equipment from Defendant. Plaintiff claims breach of contract and negligent misrepresentation. Defendant asserts a counterclaim for unpaid invoices.

Defendant asks the Court to enter summary judgment for Defendant on Plaintiff's negligent misrepresentation claim and on Defendant's counterclaim for unpaid invoices. The Court heard oral argument on July 24, 2014. For the reasons set forth below, Defendant's motion for partial summary judgment will be granted in part and denied in part.


A. Factual Background

1. Parties

Plaintiff is a Pennsylvania corporation, which focuses its business on marine construction and dredging (Def. Ex. B [Docket Item 18-3], McKee Dep. 60:8-13, June 24, 2013.) Charles McKee is Plaintiff's President. (Def. Statement of Undisputed Facts ("SMF")[Docket Item 18-11] ¶ 1.)

Defendant is a New Jersey corporation that supplies pumping equipment for use in construction. Defendant's website states, "Count on [Defendant] for thick sludge removal resulting from material dredging." (McKee Aff. ¶ 3 [Docket Item 19-4].) During the events relevant to this case, Jack Farrell was Defendant's Branch Manager and Eugene Crowell was one of Defendant's Inside Sales Representatives. (SMF ¶¶ 23-24.)

2. West End Boat Club Project

WEBC needed dredging in its marina. (Def. Ex. E [Docket Item 18-3], WEBC Contract at 1.) On February 22, 2010, Plaintiff submitted a proposed Dredge Methodology and Operational Plan ("Dredge Plan") to WEBC. (SMF ¶ 8.) Plaintiff's Dredge Plan had two steps: 1) mechanical dredging and 2) transporting waste material in 3000-cubic-yard barges to a Waste Management facility at Biles Island in Fairless Hills, PA. (Id. ¶ 9.) At the Biles Island facility, "a pre positioned spud barge with a Hydraulic pump will off load the larger hopper Barges with a hydraulic pumping system." (Def. Ex. C [Docket Item 18-3], Dredge Plan at DEEPSTAR00143.)

On August 12, 2010, Plaintiff submitted a contract to WEBC. (SMF ¶ 17). Plaintiff agreed to provide all personnel and equipment for the project, plus all "offloading pumps & associated discharge hoses...." (Def. Ex. E, WEBC Contract at 2.) Plaintiff's President McKee and WEBC's authorized agent executed the contract on October 11, 2010. (Id. at 4.) Plaintiff received its first payment and notice to proceed with the WEBC project on October 21, 2010. (Id. at 4.)

3. Communications Before Pump Delivery

Plaintiff did not provide the Dredge Plan to Defendant before submitting it to WEBC on February 22, 2010. (SMF ¶ 13.)

Defendant first learned of the WEBC project in September 2011, almost a year after Plaintiff received its first check and notice to proceed, when McKee contacted Defendant about renting a pumping system. (Id. ¶¶ 13, 23.) In September 2011, McKee met with Defendant's representatives Farrell and Crowell. (Id.) McKee explained that he "would be emptying barges containing 3000 cubic yards of dredge spoils." (Def. Ex. M [Docket Item 18-5], Def. Resp. to Pl. Interrog. at Resp. No. 4 at 5.)

McKee indicated that "he wanted to empty barges out as soon as possible." (Pl. Ex. A [Docket Item 19-2], Crowell Dep. 50:12-15, June 21, 2013.) McKee also did not give Farrell or Crowell a copy of the WEBC Contract or tell them Plaintiff's pump rental budget. (SMF ¶ 25.)

After the meeting, Crowell prepared an initial proposal dated September 14, 2011. (Id. ¶ 29.) Crowell suggested a "six-inch diesel pumpset to convey the product consisting of mud, clay and silt from a barge to the waste management facility" as well as a "four-inch diesel high pressure pumpset to act as an agitator to get the product into a suspended state."[2] (Def. Ex. I [Docket Item 18-4], Rental Quotation 101032955 at DEEPSTAR00029.) The proposal "estimate[d] that it [would] take approximately 75-100 hours to convey 3, 000 cubic yards of material to its final destination based on 10% solids content in the suspension." (Id.)

When asked about his initial decision to use a 6-inch pump, Crowell said he based it off "the calculations that [he] made using the numbers provided by Mr. McKee." (Def. Ex. H [Docket Item 18-4], Crowell Dep. 35:5-7, June 21, 2013.) The record contains no further evidence about the numbers that McKee provided.

McKee was not satisfied that the six-inch pump would convey the material as quickly as required. (Def. Ex. M, Def. Resp. to Pl. Interrog. at Resp. No. 10 at 14.) So on September 16, 2011, Crowell submitted a revised proposal with an eight-inch pump to make the pumping system faster, (SMF ¶ 30). Similarly to the original proposal, the September 16, 2011 proposal included the same specifications for an agitating system and estimated the same number of hours to convey the waste material. (Def. Ex. J [Docket Item 18-4], Rental Quotation 101033115 at DEEPSTAR00035.)

Defendant's September 16, 2011 proposal noted "that adding a second identical pumpset to the proposed system will almost double the production rate." (Id.) However, McKee decided not to add a second pumpset because he "did not want to introduce anything... that could possibly interfere with the pump sets ability to pump 3000 cubic yards of material in 32 hours." (McKee Aff. ¶ 8 [Docket Item 19-3].)

McKee asserts that he spoke with Crowell on the telephone within three days of receiving the September 16, 2011 proposal and "told him that the [revised] proposal was unacceptable since [he] needed to unload the 3000 cubic yard barge in 32 hours" and that Crowell responded with "assurances and representations that [Defendant] would assemble a pump package to meet [his] above referenced unloading requirements." (McKee Aff. ¶ 5.) When McKee was asked "if there [was] a document from either [Plaintiff] or [Defendant] to the other, where Mr. Crowell state[d] that he [would] empty a barge in 32 pumping hours, " McKee responded, "[w]ritten, no." (McKee Dep. 324:9-14, July 30, 2013.)

McKee claims that he "memorialized the above referenced conversation with [Crowell] in an e-mail to Crowell on 9/18/11, in which [McKee] reiterated the need to have equipment that could meet the specific time requirements for faster rates of pumping dredging spoils." (McKee Aff. ¶ 6.) In the email, McKee wrote, "[l]ast we spoke on Thursday, we were upgrading to a 12'' pump to get faster rates. Please also figure a larger pump to agitate the mixture. I need to get these items loaded onto our barge to do the job asap. Please call me Monday morning...." [Docket Item 19-5.]

The record before the Court has no information about Crowell's response to McKee's email, if any, or about any conversations between Plaintiff and Defendant after this email and before ...

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