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US Salt, Inc. v. Broken Arrow, Inc.: US District Court : CONTRACT | UCC - Contract terms not ambigous; no parol; breach; warranty disclaimers

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
US Salt, Inc.,
Plaintiff,
Civ. No. 07-1988 (RHK/JSM)
MEMORANDUM OPINION
AND ORDER
v.
Broken Arrow, Inc., et al.,
Defendants.
Evon M. Spangler, Perry M. de Stefano, Spangler and de Stefano, PLLP, St. Paul,
Minnesota, for Plaintiff.
Daniel N. Sacco, Wallace G. Hilke, Amy R. Mason, Lindquist & Vennum PLLP,
Minneapolis, Minnesota, for Defendants.
INTRODUCTION
Plaintiff US Salt, Inc. (“US Salt”) entered into a contract to buy salt from
Defendant Broken Arrow, Inc. (“Broken Arrow”) in June 2004 (the “Salt Contract”),
agreeing to purchase a minimum of 15,000 tons of salt in a calendar year for the period of
July 1, 2004 through December 31, 2007. At the end of August 2005, Broken Arrow
stopped providing salt to US Salt. US Salt then commenced this action in Minnesota
state court for breach of contract (Count 1), breach of express warranty (Count 2), breach
of implied warranty of merchantability (Count 3), breach of implied warranty of fitness
for a particular purpose (Count 4), breach of implied covenant of good faith and fair
dealing (Count 5), and fraud (Count 6).
2
Broken Arrow removed the case to this Court and counterclaimed for breach of
contract. Broken Arrow has now moved for summary judgment on all of US Salt’s
claims and US Salt has moved for partial summary judgment on its breach-of-contract
claim. For the reasons set forth below, the Court will grant US Salt’s Motion and grant
Broken Arrow’s Motion in part and deny it part.
BACKGROUND
US Salt and Broken Arrow are both merchants who deal in salt products. (Compl.
¶¶ 6-7.) In 2003, US Salt was looking for a high quality source of washed-and-dried
extra-course salt for water conditioners. (Johnson Aff. ¶ 4.) On October 27, 2003,
Broken Arrow mailed a solicitation letter to US Salt, along with a sample of extra-course
salt. (Compl. ¶ 8.) Broken Arrow indicated in the letter that it was “in the process of
constructing salt washing and drying facilities” and “look[ed] forward to supplying [US
Salt] a quality product in the coming years.” (Johnson Aff. ¶ 5.) In the months prior to
October 2003, Broken Arrow conducted a feasibility study on the construction of salt
washing and kiln drying facilities. (Stephen Bunn Aff. ¶ 3.) In April 2004, Broken
Arrow leased a facility to use for the kiln drying of salt and subsequently renovated this
facility for that specific purpose. (Id. ¶ 5.) Broken Arrow also built a separate washing
facility located at the salt ponds where it harvests salt. (Id. ¶ 6.)
The parties entered into the Salt Contract on June 1, 2004. (Compl. ¶ 11; Doc.
No. 1, Ex. 1.) US Salt agreed to purchase a minimum of 15,000 tons of salt per calendar
year for per ton. (Doc. No. 1, Ex 1.) Four product data sheets were attached to, and
referred to in, the Salt Contract, one for each size grade of salt: Extra Coarse, Coarse,
3
Medium, and Fine, in decreasing crystal size. (Id.) Each data sheet indicated that the salt
would be “washed, dried, and screened producing a product suitable for the regeneration
of water in water softener ion-exchange resins and for ice control.” (Id.) The Salt
Contract also contained a “Warranty” clause, which provided that the salt would meet the
quality specifications listed in the product data sheets. (Id.)
In November 2004, Broken Arrow sent a shipment of salt to US Salt. (Compl. ¶
17.) The shipment was nonconforming to the Salt Contract, however, because it was
gray in color and was not washed. (Johnson Aff. Ex. C-1.) In January and February
2005, US Salt visited Broken Arrow’s facilities in Utah to try to determine why this
shipment did not conform to the product data sheets. (Compl. ¶¶ 19-20.)
On March 15, 2005, US Salt demanded that Broken Arrow cure the
nonconforming shipment of salt. (Johnson Aff. Ex. C-3; Compl. ¶ 21). It also informed
Broken Arrow that it was losing customers and incurring various expenses due to Broken
Arrow’s delay in providing conforming salt. (Id.) Broken Arrow responded by issuing
US Salt a ,889 credit for the nonconforming salt. (Mason Reply Aff. Ex. B at
Interrogatory No. 8.)
From May 2005 to August 2005, Broken Arrow sent conforming salt to US Salt.
At the end of August 2005, however, it stopped providing salt to US Salt. (Compl. ¶ 22.)
In March and April 2006, US Salt requested assurances from Broken Arrow that it
intended to honor the Salt Contract, but no assurances were provided. (Id.; Exs. C-2, D.)
This action followed.
4
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Celotex, 477 U.S. at 322; Mems v. City of St.
Paul, Dep’t of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The Court must
view the evidence, and the inferences that may be reasonably drawn from it, in the light
most favorable to the nonmoving party. Graves v. Ark. Dep’t of Fin. & Admin., 229
F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116
(8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but
must show through the presentation of admissible evidence that specific facts exist
creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
ANALYSIS
US Salt has moved for partial summary judgment on its breach-of-contract claim.
Broken Arrow seeks summary judgment on US Salt’s claims for breach of contract
(Count 1), breach of express warranty (Count 2), breach of implied warranty of
merchantability (Count 3), breach of implied warranty of fitness for a particular purpose
(Count 4), breach of implied covenant of good faith and fair dealing (Count 5), and fraud
(Count 6).
5
I. Breach of Contract
As a threshold matter, Broken Arrow argues that the Salt Contract is
unenforceable because it (1) lacks a quantity term that it must sell and (2) fails to specify
which grades of salt it must sell. US Salt asserts that the quantity term is clear and
unambiguous.
This dispute is governed by Article 2 of the Minnesota Uniform Commercial Code
because it involves the sale of goods between merchants. See Minn. Stat. §§ 336.2-104-
105 (2007). 1 A contract for the sale of goods for a price of 0 or more is enforceable
if it includes: (1) sufficient information to identify the parties and show that a contract for
sale exists between them, (2) a quantity term, and (3) the signature of the party against
whom enforcement is sought (or his or her authorized agent or broker). Id. § 336.2-
201(1).
The Salt Contract meets these requirements – Broken Arrow agreed to sell and US
Salt agreed to purchase dried sodium chloride solar salt for per ton; there was a
definite quantity term as US Salt agreed to purchase a minimum of 15,000 tons of salt in
a calendar year; and it was in writing and signed by both parties.
Broken Arrow, however, argues that the Salt Contract is unenforceable because it
only provides the quantity of salt that US Salt must buy, but it does not contain the
quantity of salt that it must sell. This argument is without merit. There is nothing
1 Both parties agree that Minnesota law governs the Salt Contract. See BBSerCo, Inc. v. Metrix
Co., 324 F.3d 955, 960 n.3 (8th Cir. 2003) (law of forum state applies by default where parties
do not raise choice-of-law issue).
6
indefinite or ambiguous about the quantity term in the Salt Contract. The determination
of whether a contract is ambiguous is a question of law for the Court. Denelsbeck v.
Wells Fargo & Co., 666 N.W.2d 339, 346-47 (Minn. 2003). Furthermore, contract
provisions must be interpreted in the context of the entire contract, see Republic Nat’l
Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn. 1979), and the effect
of the language is not to be understood only from “isolated clauses.” Boe v. Christlieb,
399 N.W.2d 131, 133 (Minn. Ct. App. 1987). The fact that the Salt Contract did not
specifically state that Broken Arrow must sell a minimum of 15,000 tons of salt does not
make the contract ambiguous or indefinite. The quantity term is clear as are the parties’
obligations – US Salt agreed to purchase a minimum of 15,000 tons of salt, which means
Broken Arrow agreed to sell a minimum of 15,000 tons of salt.
Broken Arrow also argues that the Salt Contract is unenforceable because it does
not specify how much of each grade of salt US Salt is obligated to purchase and Broken
Arrow is to sell. The Salt Contract identified and defined four different grades of salt:
Extra Coarse, Coarse, Medium, and Fine. Broken Arrow argues that US Salt is required
to purchase each grade of salt listed in the Salt Contract. (Stephen Bunn Aff. ¶ 8.) In
particular, it asserts that it would lose money on every ton of salt that it processes unless
US Salt takes all sizes, because it does not have a ready market for all of the smaller
crystal sizes. (Id.) Prior to signing the Salt Contract, Broken Arrow claims that US Salt
knew that it was required to purchase each grade of salt in the proportions in which they
were produced in Broken Arrow’s drying process. (Stephen Bunn Dep. at 93-96.)
7
Under the parol evidence rule, the “parties are barred from bringing evidence of
any prior agreement or a contemporaneous oral agreement that contradicts the terms of a
final, written contract.” Minn. Stat. § 336.2-202. The parties, however, may bring
“evidence of consistent additional terms” unless the court finds that the writing is
intended by the parties to be a complete and exclusive statement of the terms of the
agreement. Id. § 336.2-202(b). Whether an agreement is completely integrated and
therefore not subject to variance by parol evidence is a question of law. Apple Valley
Red-E-Mix v. Mills-Winfield Eng’g Sales, Inc., 436 N.W.2d 121, 123 (Minn. Ct. App.
1989). “A merger clause establishes that the parties intended the writing to be an
integration of their agreement.” Alpha Real Estate Co. of Rochester v. Delta Dental Plan
of Minn., 664 N.W.2d 303, 312 (Minn. 2003) (citation omitted).
Here, US Salt and Broken Arrow agreed that the Salt Contract “constitutes the
entire agreement between the parties and there is no understanding . . . of any kind . . .
not expressly set forth herein.”2 (Doc. No. 1, Ex 1). This is a clear indicator that the
parties intended the Salt Contract to be a complete and final statement of the terms of
their agreement. See Alpha, 664 N.W.2d at 313-14 (finding agreement to be completely
integrated where merger clause specifically stated that it was the “entire agreement
between the parties”); Karger v. Wangerin, 40 N.W.2d 846, 849 (Minn. 1950) (“what
was said during the negotiations . . . must be understood to be superseded by the
writing”). Furthermore, the alleged oral agreement requiring US Salt to purchase each
2 The Salt Contract also prohibits the modification of its terms unless it is in writing and signed
by the parties. (Doc. No. 1, Ex. 1.)
8
grade of salt in the proportions in which they were produced would directly contradict or
vary the express terms of the Salt Contract.3 The Salt Contract simply requires US Salt to
purchase a minimum of 15,000 tons of salt in a calendar year at per ton. This is not
an ambiguous term that requires parol evidence for clarification because its meaning is
clear on its face. Cooper v. Lakewood Eng’g & Mfg. Co., 874 F. Supp. 947, 953 (D.
Minn. 1994) (citing Minnesota law) (explaining that if a contract term is determined to be
unambiguous, its interpretation is a question of law). Accordingly, the Court determines
that the Salt Contract represents the entire agreement between the parties and is a valid
and enforceable contract.
The Court will now address whether Broken Arrow has breached the Salt
Contract. The parties to a sales agreement have a right to performance and the assurance of
performance. When reasonable grounds for insecurity arise, a party may demand, in
writing, adequate assurance of due performance. Minn. Stat. § 336.2-609(1). The party
seeking assurance may also suspend performance until receipt of such assurance. Id.
Failure to seasonably provide such assurance results in a repudiation of the contract.
Minn. Stat. § 336.2-609(4).
Broken Arrow stopped providing salt to US Salt at the end of August 2005. The
record shows that US Salt requested assurances from Broken Arrow on March 8, 2006, as
to whether it intended to honor the Salt Contract. (Johnson Aff. Ex. C-2.) US Salt
informed Broken Arrow that it had “railcars waiting to be loaded, railcar leases, empty
3 Indeed, such an obligation is certainly important enough that the parties would have included it
in the Salt Contract if they had intended this.
9
bags, and other expenses associated with [the Salt Contract].” (Id.) The next month, US
Salt again requested assurances from Broken Arrow that it intended to honor the Salt
Contract. (Johnson Aff. Ex. D.) Broken Arrow, however, never provided any such
assurances. As a result, Broken Arrow breached the Salt Contract when it stopped
providing salt at the end of August 2005 and failed to provide any assurance that it would
honor the Salt Contract. Broken Arrow argues that it was justified in doing so because
US Salt breached the Salt Contract first by not purchasing each grade of salt. (Def.’s
Reply Mem. at 10-11.) As discussed above, however, the Salt Contract does not require
US Salt to purchase each grade of salt and Broken Arrow’s attempt to alter the clear
terms of the Salt Contract is barred by the parol evidence rule.
Accordingly, US Salt is entitled to summary judgment that Broken Arrow is liable
for breach of contract. The issue of US Salt’s damages, if any, is a question for the jury.
II. Breach of Express and Implied Warranties
US Salt also asserts that Broken Arrow breached various warranties, including an
express warranty in the Salt Contract, the implied warranty of merchantability, and the
implied warranty of fitness for a particular purpose. Broken Arrow argues that it is
entitled to summary judgment on these claims because it (1) cured the shipment of
nonconforming salt when it issued US Salt a credit of ,889 and (2) provided
conforming salt from May 2005 through August 2005.
A. Breach of Express Warranty
An express warranty is generally created when a seller specifically warrants that
his product will satisfy certain specifications. A seller may create an express warranty
10
by: (1) making any affirmation of fact or promise that relates to the goods and becomes
part of the basis of the bargain, (2) giving a description of the goods that becomes part of
the basis of the bargain, or (3) showing the buyer a sample or model of the goods that the
buyer reasonably assumes represents the characteristics of the goods he is to receive.
Minn. Stat. § 336.2-313(a)-(c). “Whether an express warranty arises from the language
and circumstances of a transaction is a question properly submitted to the jury.” N.
States Power Co. v. ITT Meyer Indus., 777 F.2d 405, 411 (8th Cir. 1985) (citing Heil v.
Standard Chem. Mfg. Co., 223 N.W.2d 37, 41 (Minn. 1974)).
Here, the Salt Contract provides that the salt would meet the quality specifications
listed in the product data sheets. (Doc. No. 1, Ex 1.) The product data sheets provide
that each grade of salt was to be “washed, dried, and screened producing a product
suitable for the regeneration of water in water softener ion-exchange resins and for ice
control.” (Id.) Viewing the record in the light most favorable to US Salt, the Court
concludes that a reasonable jury could conclude that Broken Arrow expressly warranted
that the salt would meet the specifications in the product data sheets. The existence of an
express warranty does not end the inquiry, however – the Court must also consider
whether Broken Arrow has breached that express warranty.
US Salt accepted the November 2004 shipment of salt, but asserts that it was
nonconforming because it was unwashed, gray in color, and unsuitable for water
conditioners. Although US Salt accepted the nonconforming salt (and later resold it), this
does not prevent it from asserting other remedies it may have for the nonconformity. See
Minn. Stat. § 336.2-714 (“Where the buyer has accepted goods and given notification . . .
11
the buyer may recover as damages for any nonconformity of tender the loss resulting in
the ordinary course of events from the seller’s breach as determined in any manner which
is reasonable.”). The buyer must notify the seller within a reasonable time after it
discovered or should have discovered a breach, or it is barred from any remedy. See
Minn. Stat. § 336.2-607(3)(a).
Here, it is undisputed that US Salt immediately notified Broken Arrow that the
November 2004 shipment of salt was nonconforming. Consequently, US Salt retained its
right to a remedy for breach of express warranty. Broken Arrow claims that it cured the
nonconforming salt when it issued a credit of ,889 to US Salt. (Mason Reply Aff. Ex.
B at Interrogatory No. 8.) This argument, however, goes to the amount of US Salt’s
damages (which is disputed by the parties) and not to whether Broken Arrow actually
breached an express warranty. (Johnson Aff. Ex. C-3; Compl. ¶ 21). Accordingly, the
Court will deny Broken Arrow’s Motion on this claim.
B. Breach of Implied Warranties
A warranty of merchantability is implied in a contract for the sale of goods
“[u]nless excluded or modified.” Minn. Stat. § 336.2-314(1). For goods to be
merchantable, they must be “fit for the ordinary purposes for which such goods are used.”
Minn. Stat. § 336.2-314(2)(c). A warranty of fitness for a particular purpose is implied
when a seller “has reason to know any particular purpose for which the goods are
required and that the buyer is relying on [the] seller’s skill or judgment to select or
furnish suitable goods.” Minn. Stat. § 336.2-315-16. This warranty is also implied
“unless excluded or modified.” Id.
12
Here, Broken Arrow did not properly disclaim the implied warranty of
merchantability. To exclude or modify this implied warranty, a contract’s language must
specifically mention merchantability and if the disclaimer is in writing it must be
conspicuous. See Minn. Stat. § 336.2-316(2); Soo Line R.R. Co. v. Fruehauf Corp., 547
F.2d 1365, 1373 n.13 (8th Cir. 1977) (applying Minnesota law) (“the need for contractual
certainty dictates against abandoning the requirement for a disclaimer to mention the
word ‘merchantability’”). The disclaimer in the Salt Contract states that “there is no
understanding, representation, or warranty of any kind expressed or implied, not
expressly set forth herein.” (Doc. No. 1, Ex 1.) Although the disclaimer in the Salt
Contract is conspicuous,4 it did not mention “merchantability.”5 Therefore, the implied
warranty of merchantability is applicable and the Court will deny Broken Arrow’s
Motion for summary judgment on this claim.
However, the Court determines that Broken Arrow did properly disclaim the
implied warranty of fitness for a particular purpose. To exclude or modify this implied
warranty, the disclaimer must be in writing and must be conspicuous. See Minn. Stat.
§ 336.2-316(2). Notably, “[l]anguage to exclude all implied warranties of fitness is
sufficient if it states, for example, that ‘There are no warranties which extend beyond the
description on the face hereof.’” Id. The disclaimer in the Salt Contract has a clause
4 “Courts have considered capitalization, typeface, contrasting color, and location of the clause in
determining whether it is conspicuous.” Agristor Leasing v. Guggisberg, 617 F. Supp. 902, 909
(D. Minn. 1985) (applying Minnesota law). Here, the disclaimer was in capital letters and above
the signature lines of the Salt Contract.
5 The implied warranty of merchantability may also be disclaimed by expressions like “as is” or
“with all faults.” Minn. Stat. § 336.2-316(3)(a). But, Broken Arrow did not use any of these
expressions in the disclaimer.
13
containing such language: “there is no . . . warranty of any kind expressed or implied,
not expressly set forth herein.” (Doc. No. 1, Ex. 1.) Therefore, the Court will grant
Broken Arrow’s Motion with respect to US Salt’s claim for breach of the implied
warranty of fitness for a particular purpose.
III. Fraud Claim
Broken Arrow next argues that it is entitled to summary judgment on US Salt’s
fraud claim because US Salt cannot establish the necessary elements of such a claim.
The Court agrees. US Salt’s fraud claim is based on a statement contained in an October
27, 2003 solicitation letter, in which Broken Arrow stated that it was in “the process of
constructing salt washing and drying facilities.” (Compl. ¶ 60.) US Salt asserts that it
relied on this false statement when it entered into the Salt Contract.
To prevail on its fraud claim, US Salt must show that: (1) Broken Arrow made a
false representation of a past or present material fact that is susceptible to knowledge; (2)
Broken Arrow either knew the representation was false or asserted it as true without
knowing whether it was true or false; (3) Broken Arrow intended to induce US Salt to act
on the false representation; (4) US Salt did, in fact, act in justifiable reliance on the false
representation; and (5) US Salt suffered damages as a proximate cause of the
misrepresentation. Martens v. Minn. Mining & Mfg., 616 N.W.2d 732, 747 (Minn.
2000).
Here, US Salt takes issue with the assertion that Broken Arrow had merely
conducted a feasibility study on the construction of salt washing and drying facilities, as
opposed to already being in the process of constructing such facilities. The evidence
14
shows that Broken Arrow ultimately decided to lease, not construct, the facilities. As
such, US Salt argues that there is a genuine issue of material fact as to whether Broken
Arrow was actually in the process of constructing salt washing and drying facilities as of
October 27, 2003.
US Salt, however, fails to address how this alleged misrepresentation is material.
The record shows that US Salt was fully aware of the status of such facilities. (Mason
Reply Aff. Ex. F.) Indeed, in November 2003 and April 2004, US Salt toured Broken
Arrow’s salt piles and facilities in Utah. (Id. Ex. B.) US Salt also took pictures of
Broken Arrow’s facilities and observed that they were not operational. (Id.) On June 1,
2004, US Salt entered into the Salt Contract with Broken Arrow. Notably, the Salt
Contract itself indicates that the salt “[p]roducts are anticipated to be available by July
2004.” (Doc. No. 1, Ex. 1.) Thus, US Salt was fully aware that the salt washing and
drying facilities were not yet complete as of June 1, 2004.
Even if Broken Arrow falsely represented to US Salt that it was currently in the
process of constructing salt washing and drying facilities as of October 27, 2003, there is
no evidence to show that this was a material misrepresentation; thus, US Salt’s fraud
claim fails as a matter of law. Furthermore, US Salt could not have reasonably relied on
this single vague statement as its basis for entering into the Salt Contract when it was
well aware of the status of Broken Arrow’s facilities. Accordingly, the Court will grant
Broken Arrow’s Motion on US Salt’s fraud claim.
15
IV. Implied Covenant of Good Faith and Fair Dealing Claim
Finally, US Salt asserts that Broken Arrow violated the implied covenant of good
faith and fair dealing.6 Broken Arrow, however, argues that US Salt has simply repeated
its arguments that Broken Arrow breached the Salt Contract. The Court agrees.
Minnesota law recognizes an implied covenant of good faith and fair dealing in
every contract. In re Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d 494,
502 (Minn. 1995). Minnesota law, however, does not recognize a separate cause of
action for breach of the implied covenant of good faith when it arises from the same
conduct as a breach-of-contract claim. See Medtronic, Inc. v. ConvaCare, Inc., 17 F.3d
252, 256 (8th Cir. 1994) (“Minnesota law does not recognize a cause of action for breach
of the implied covenant of good faith and fair dealing separate from the underlying
breach of contract claim.”); Orthomet, Inc. v. A.B. Med., Inc., 990 F.2d 387, 392 (8th
Cir. 1993) (“a cause of action for good faith and fair dealing cannot exist independent of
the underlying breach of contract claim.”).
Here, US Salt bases its breach-of-implied-covenant claim on the same conduct as
its breach-of-contract claim – Broken Arrow’s failure to provide salt pursuant to the
terms of the Salt Contract. Accordingly, the Court will grant Broken Arrow’s Motion as
to this claim.
6 At the hearing on December 19, 2007, US Salt orally cross-moved for partial summary
judgment on this claim. That request is DENIED for the reasons set forth below.
16
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED:
1. US Salt’s Motion for Partial Summary Judgment (Doc. No. 37) on its
breach-of-contract claim as to liability (Count 1) is GRANTED. US Salt’s
Motion for dismissal of Broken Arrow’s Counterclaim for breach of
contract (Doc. No. 9) is GRANTED and the Counterclaim is DISMISSED
WITH PREJUDICE; and
2. Broken Arrow’s Motion for Summary Judgment (Doc. No. 27 ) is
GRANTED IN PART and DENIED IN PART as follows:
a. GRANTED as to US Salt’s claims for breach of implied warranty of
fitness for a particular purpose (Count 4), breach of implied covenant of
good faith and fair dealing (Count 5), and fraud (Count 6), and Counts
4, 5, and 6 of US Salt’s Complaint are DISMISSED WITH
PREJUDICE; and
b. DENIED with respect to US Salt’s claims for breach of contract (Count
1), breach of express warranty (Count 2), and breach of implied
warranty of merchantability (Count 3).
Dated: February 11, 2008 s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
 

 
 
 

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