IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ALLTRISTA PLASTICS, LLC d/b/a ) JARDEN PLASTIC SOLUTIONS ) ) Plaintiff, ) ) v. ) C.A. No. N12C-09-094 JRJ CCLD ) ROCKLINE INDUSTRIES, INC., ) ) Defendant. )
OPINION
Date Submitted: February 5, 2016 Date Decided: March 11, 2016
Upon Plaintiff’s Motion for Summary Judgment: DENIED.
Joseph A. Bellew, Esquire, Cozen O’Connor, Wilmington, DE, James H. Heller, Esquire (pro hac vice) (argued), Abby L. Sacunas, Esquire (pro hac vice), Cozen O’Connor, Philadelphia, PA, Attorneys for Plaintiff Alltrista Plastics, LLC d/b/a Jarden Plastic Solutions.
Daniel J. Brown, Esquire, James J. Freebery, Esquire, McCarter & English, LLP, Wilmington, DE, Jessica H. Polakowski, Esquire (pro hac vice), Reinhart Boerner Van Deuren, s.c., Madison, WI, Guy R. Temple, Esquire (pro hac vice) (argued), Reinhart Boerner Van Deuren, s.c., Milwaukee, WI, Attorneys for Defendant Rockline Industries, Inc.
Jurden, P.J. I. INTRODUCTION
Before the Court is Plaintiff Alltrista Plastics, LLC d/b/a Jarden Plastic
Solutions’ (“Jarden”) Motion for Summary Judgment on its breach of contract
claim against Rockline Industries, Inc. (“Rockline”), and for dismissal of
Rockline’s counterclaims for intentional misrepresentation, breach of the implied
covenant of good faith and fair dealing, promissory estoppel, and unjust
enrichment.1
II. BACKGROUND
A. The Parties
Jarden supplies plastic packaging solutions, including thin-wall plastic
injection molded products, to a variety of industries. 2 Rockline produces, among
other things, disinfecting wet wipes. 3 In 2009, Jarden approached Rockline about
manufacturing wet wipe canisters for Rockline using Jarden’s “LitePak” canister
design.4 LitePak canisters are thin-walled, injection molded canisters that are
1 Motion for Summary Judgment (“Jarden Mot. Summ. J.”) (Trans. ID. 58195759); Defendant Rockline Industries’ Memorandum of Law in Opposition to Jarden’s Motion for Summary Judgment (“Rockline Resp.”) (Trans. ID. 58328694); Plaintiff’s Reply Memorandum in Support of its Motion for Summary Judgment (Trans. ID. 58435227). 2 Joint Pre-Trial Stipulation at 13 (Trans. ID. 58679062). 3 Id. 4 Jarden Mot. Summ. J. at 3; Rockline’s Resp. at 3, Ex. C Deposition of Mike Zaagman at 69:15– 21. 2 “lighter in weight and more bio-degradable” than traditional blow molded
canisters. 5
In November 2009, Jarden and Rockline executed a Letter of Understanding
(“LOU”) outlining the anticipated terms and conditions of a future supply
agreement.6 Canisters from Jarden’s single cavity prototype tool were provided to
Rockline in late 2009 “to allow Rockline to verify whether the [p]rototype
[c]anisters would work in Rockline’s manufacturing process.”7
On October 19, 2010, Kishore Gonpati (“Gonpati”), a Rockline packaging
engineer, signed a canister design drawing (“October 2010 Design Drawing”) for
Jarden to use in cutting an eight cavity production tool.8 That same day, Gonpati
circulated the October 2010 Design Drawing and a component specification
document numbered “24021 Revision A” (“Component Specification 24021”) to
Jarden employees, Timothy Benz (“Benz”) and Susan Braun.9
5 Jarden Mot. Summ. J. at 3. 6 Jarden Mot. Summ. J., Ex. E. 7 Rockline Resp. at 3. 8 Jarden Mot. Summ. J., Ex. G Deposition of Kishore Gonpati at 137:10–15 (Q. - - on [Jarden Mot. Summ. J., Ex. H] was that your way of telling Jarden, among other people, that the prototype tool was approved and that you could then start cutting the production tool? A. Correct.). 9 Jarden Mot. Summ. J., Ex. B Deposition of Timothy Benz at 37:19–38:1; Jarden Mot. Summ. J., Ex. I. 3 B. The Supply Agreement
Jarden and Rockline signed a contract (“Supply Agreement”) on November
2, 2010. 10 Pursuant to the Supply Agreement, the “one (1) cavity prototype tool”
would be modified by Jarden at Rockline’s expense to become “a set of workable
plastic injection tools for the production of 105[]mm cylindrical [wet] wipe
canisters . . . (‘Canisters’).” 11 Rockline agreed to purchase “at least 13,000,000
Canisters . . . (the ‘Annual Minimum’)” each year, for three years, and, if Rockline
did not “purchase the Annual Minimum for any reason other than Jarden’s failure
to supply . . . Rockline [would pay] . . . for the purchase shortfall.” 12
The Supply Agreement also provides that the total cost “for the Tool shall be
$500,000.00,” consisting of $200,000.00 Rockline previously paid to Jarden under
the LOU and $300,000.00 Rockline agreed to pay to Jarden “within ten (10) days
of Tool validation.” 13
Section 4(a) of the Supply Agreement provides that “Jarden and Rockline
shall work together to reach agreed upon Specifications,” and “[o]nce the parties
10 Joint Pre-Trial Stipulation at 13; Jarden Mot. Summ. J., Ex. A Supply Agreement (“Supply Agreement”). 11 Supply Agreement p.1. 12 Id. ¶ 1(i). 13 Id. p. 1, ¶ 3(c). The Supply Agreement “supersedes and replaces the terms of any and all prior discussion, agreements or understanding between the Parties,” including the November 12, 2009 Letter of Understanding. Id. ¶ 23; Jarden Mot. Summ. J., Ex. E. 4 reach agreed upon Specifications, Jarden shall materially conform to the respective
specifications as set forth in Exhibit A” (“Canister Specifications”). 14
C. Development of the Production Tool
According to Rockline, Rockline ordered a shipment of “TR 12” canisters,
and, upon receipt, shrink wrapped pallets of the TR 12 canisters for a stack test,
“with intent to then complete a final ship test.”15 When Rockline employees
inspected the pallets, they reported denting, buckling, and cracking in the TR 12
canisters. 16 On March 21, 2012, Rockline informed Jarden that the canisters had
failed Rockline’s stack test.17
Jarden immediately sent a representative, Todd Zillmer (“Zillmer”), to
Rockline’s warehouse to view the TR 12 canisters.18 Zillmer believed that the
observed damage to the TR 12 canisters was caused by Rockline shrink wrapping
the canisters too tightly. 19 Rockline, however, did not believe that the shrink
wrapping caused the damage, and sent Jarden a checklist of “variables to be
investigated and documented.” 20 According to Rockline, the purpose of the
14 Supply Agreement ¶ 4(a). 15 Jarden Mot. Summ. J., Ex. T. 16 Id. 17 Id. 18 Joint Pre-Trial Stipulation at 13. 19 Jarden Mot. Summ. J., Ex. C June 17, 2015 Deposition of Ronald Kerscher at 168:23–169:14. 20 Rockline Resp. at 8, Exs. S, T. 5 checklist was to help determine why the TR 12 canisters were not performing as
well as the prototype canisters. 21
Jarden never responded to Rockline’s checklist and request for an
investigation. Instead, Jarden filed the instant action alleging breach of contract
against Rockline because, according to Jarden, Jarden had fulfilled its contractual
obligations and it was clear that “Rockline was going to breach the Supply
Agreement by refusing to order the canisters or pay the outstanding balance for the
tool.” 22
Rockline then counterclaimed, alleging breach of contract, intentional
misrepresentation, breach of the covenant of good faith and fair dealing,
promissory estoppel, and unjust enrichment. 23
III. STANDARD OF REVIEW
Superior Court Civil Rule 56 permits summary judgment when “there is no
genuine issue as to any material fact” such that “the moving party is entitled to a
judgment as a matter of law.”
When interpreting a contract, Delaware courts give priority to the intentions
of the parties as “‘reflected in the four corners of the agreement,’ construing the
21 Id. 22 Jarden Mot. Summ. J. at 12–13. 23 Alltrista Plastics, LLC v. Rockline Indus., Inc., 2013 WL 5210255 (Del. Super. Sept. 4, 2013). 6 agreement as a whole and giving effect to all its provisions.” 24 “Where the
contract language is clear and unambiguous, the parties’ intent is ascertained by
giving the language its ordinary and usual meaning.” 25 However, “where
reasonable minds could differ as to the contract’s meaning, a factual dispute results
and the fact-finder must consider admissible extrinsic evidence.”26 “[S]ummary
judgment may not be awarded if the language is ambiguous and the moving party
has failed to offer uncontested evidence as to the proper interpretation.”27
IV. DISCUSSION
A. Summary Judgment on Jarden’s Breach of Contract Claim
Jarden maintains that it is entitled to summary judgment on its breach of
contract claim because there is no genuine issue of material fact that: (1) Jarden
manufactured canisters that conformed to the “agreed upon [Canister]
Specifications;” (2) the production tool was validated; and (3) after agreeing to
Canister Specifications and validating the production tool, Rockline submitted a
purchase order to Jarden, thereby triggering Rockline’s obligation to “take or pay”
for 13,000,000 canisters annually for three years.28
24 Salamone v. Gorman, 106 A.3d 354, 368 (Del. 2014) (quoting GMG Capital Inv., LLC. v. Athenian Venture Partners I, L.P., 36 A.3d 776, 779 (Del. 2012)). 25 Nw. Nat. Ins. Co. v. Esmark, Inc., 672 A.2d 41, 43 (Del. 1996) (citing Rhone-Poulenc Basic Chemicals Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992)). 26 GMG, 36 A.3d at 783. 27 Id. at 784. 28 Jarden Mot. Summ. J. at 13–19. 7 Rockline argues that there are genuine issues of material fact in dispute
because: (1) Jarden could not possibly manufacture canisters that conformed to
“agreed upon [Canister] Specifications” because Jarden and Rockline never agreed
upon Canister Specifications; (2) the production tool was never validated; and (3)
Rockline never triggered its Annual Minimum purchase obligation because
Rockline only ordered trial canisters, not production canisters. 29
The key issue in this motion for summary judgment is whether Jarden and
Rockline agreed upon Canister Specifications. If Jarden and Rockline never
agreed upon Canister Specifications, then Jarden could not manufacture
“Canisters” as contemplated by the Supply Agreement.
According to Jarden, Jarden and Rockline agreed to Canister Specifications,
and Jarden manufactured canisters that conformed to those specifications.30
However, Rockline, allegedly motivated by an inability to sell the Annual
Minimum, breached the Supply Agreement by attempting to impose
extracontractual performance obligations on Jarden and refusing to purchase
canisters. In particular, Jarden objects to any implication that the Supply
Agreement requires Jarden to fix problems “outside of its control,
including . . . shrink wrapping, stacking or storing of filled canisters.”31
29 Rockline Resp. at 10–21. 30 Jarden Mot. Summ. J. at 1–3. 31 Id. at 11. 8 1. Agreed Upon Canister Specifications
The Supply Agreement unambiguously states that Rockline and Jarden
“shall work together to reach agreed upon [Canister] Specifications,” and “[o]nce
the parties reach agreed upon Specifications, Jarden shall materially conform to the
respective specifications as set forth in Exhibit A hereto (the ‘Specifications’).”32
When Jarden and Rockline entered into the Supply Agreement, “Exhibit A” did not
include any the Canister Specifications. 33
Jarden claims that the October 2010 Design Drawing and Component
Specification 24021 constitute the agreed upon Canister Specifications. 34 In
support of this, Jarden cites the deposition testimony of Benz. Benz testified in his
deposition that the October 2010 Design Drawing and Component Specification
24021 attached to Gonpati’s pre-Supply Agreement email “appear[ed] to be the
Rockline specification for the Jarden Litepak can[ister].” 35 Benz also testified that
he believed that specifications were “Exhibit A” of the Supply Agreement.36
32 ¶ 4(a) (emphasis added). The Supply Agreement also states: “The Canister will be made with a thin-wall technology, employing a thin wall, supported by an internal series of plastic ribs,” and “[t]he Canister will have adequate static-load strength for automatic pressure down capping machinery.” Id. p. 1. These provisions do not appear to be at issue. 33 “Exhibit A” states only “(Here, insert drawings and specifications for the Canister).” 34 Jarden Mot. Summ. J. at 5. 35 Jarden Mot. Summ. J., Ex. B Deposition of Timothy Benz at 27:2–24. 36 Id. 9 In further support, Jarden cites a 2012 email Benz sent to Ron Kerscher
(“Kerscher”), another Rockline employee. 37 The subject line of the email reads,
“Jarden documents,” and attached to the email is a copy of the October 2010
Design Drawing and Component Specifications 24021. In the text of this email,
Benz describes the October 2010 Design Drawing and Component Specifications
24021 as “Exhibit A.”
Jarden maintains that Benz’s deposition testimony, the October 2010 Design
Drawing, and Component Specifications 24021 establish that there is no genuine
issue of material fact in dispute that Jarden and Rockline agreed upon Canister
Specifications.
The October 2010 Design Drawing, Component Specification 24021, and
Gonpati’s email forwarding those documents to Benz all pre-date the execution of
the Supply Agreement, and these documents were not incorporated into the Supply
Agreement when it was executed.38 Therefore, if Jarden and Rockline agreed that
the October 2010 Design Drawing and Component Specification 24021 constituted
the Canister Specifications, the alleged agreement occurred at some point after the
parties entered into the Supply Agreement.
Jarden asserts that Benz’s “admission” that the October 2010 Design
Drawing and Component Specification 24021 were the Canister Specifications
37 Jarden Mot. Summ. J.at 6, Ex. J. 38 Jarden Mot. Summ. J., Exs. A, I. 10 proves that these documents were agreed upon as contemplated by the Supply
Agreement. But, Benz’s deposition testimony is disputed. For example, Gonpati,
the signer of the October 2010 Design Drawing and the author of the email
forwarding that document and Component Specification 24021 to Benz, testified
that Component Specification 24021 was a “living document” representing “the
specifications to which the Jarden can[ister] had to be manufactured” “[a]s of
October 19, 2010.”39 Further, Kerscher testified that although the parties “were
working all along through all these working documents,” the “final specification”
Jarden would be required to conform to in producing the “Canisters” was
never reached by the parties.40 Finally, Benz testified that the October 2010
Design Drawing and Component Specifications 24021, attached as “Exhibit A” in
his 2012 email, was a “preliminary spec[ification]” that had been approved, “but
the final spec[ification] had not been approved.” 41
Because there are genuine issues of material fact in dispute with regard to
whether the parties agreed upon Canister Specifications, summary judgment is
inappropriate.
39 Rockline’s Resp., Ex. E Deposition of Kishore Gonpati at 140:7–145:23. 40 Rockline’s Resp., Ex. H June 17, 2015 Deposition of Ronald Kerscher at 37:22–38:24, 165:17–166:4 (emphasis added). 41 Rockline’s Resp., Ex. A Deposition of Timothy Benz at 243 (emphasis added). 11 2. Tool Validation
Pursuant to the Supply Agreement, Rockline agreed to pay Jarden
$300,000.00 “within ten (10) days of Tool validation.” “Tool validation” is not a
defined term in the Supply Agreement, and examination of the Supply Agreement
as a whole does not make clear what constitutes “Tool validation.” Therefore, the
Supply Agreement is ambiguous as to what constitutes “Tool validation.” 42
Jarden argues that Tool validation occurred on July 13, 2011, when both
Jarden and Rockline employees signed a canister design drawing “pending
evaporation testing” (“July 2011 Design Drawing”).43 Jarden further argues that
Tool validation occurred again when the Jarden canisters passed Phase I and II of
Rockline’s three phase “Mold Qualification Procedure.” 44
Rockline argues that Tool validation never occurred. In support of its
argument, ROckline point out that although the July 2011 Design Drawing was
signed on behalf of Rockline by Donald Neitzel (“Neitzel”) and Gonpati, Jarden
relies upon Benz’s deposition testimony to establish that Rockline “admitted” that
the tool was validated by that document. 45 Neitzel and Gonpati both testified at
their depositions that their signatures were intended to acknowledge that design
42 For example, does validation require merely producing canisters within particular specifications or does validation require producing canisters within particular specifications over a particular period of time. See, e.g., Rockline Resp., Ex. R (describing Rockline’s Mold Qualification Prodcedure). 43 Jarden Mot. Summ. J. at 8, Ex. Q. 44 Jarden Mot. Summ. J. at 9, Ex. C at 92:4–9, Ex. K. 45 Jarden Mot. Summ. J., Ex. Q. 12 changes had been incorporated into the document, without mention of “Tool
validation.”46
Second, and contrary to Jarden’s assertion that Benz admitted that the
production tool was validated, Benz testified: (1) he was not present when the July
2011 Design Drawing was signed; (2) neither Neitzel nor Gonpati reported back to
him about the July 2011 Design Drawing; and (3) he “would not consider [the July
2011 Design Drawing to be] a tool validation.”47
Finally, with respect to Jarden’s argument that completion of Phase II of
Rockline’s Mold Qualification Procedure validated the production tool, whether
Phase II Mold Qualfication Procedure completion constitutes “Tool validation”
under the “proper interpretation” of the Supply Agreement is an issue of fact to be
decided by the jury. 48
There are genuine issues of material fact in dispute as to whether the
production tool was validated, as required by the Supply Agreement to trigger
Rockline’s obligation to pay Jarden the $300,000.00 balance of the total cost.
46 Rockline Resp, Ex. E Deposition of Kishore Gonpati at 346:24–347:20 (“[I]t’s a change of design we have to redo all the validation for this part.”); Rockline Resp., Ex. F Deposition of Donald Neitzel at 149:21–152:5. 47 Rockline Resp., Ex. A Deposition of Timothy Benz at 227:13–230:23. 48 GMG, 36 A.3d at 784. 13 B. Summary Judgment on Rockline’s Counterclaims
1. Intentional Misrepresentation
Rockline alleges that Jarden intentionally misrepresented the material
characteristics of the prototype canisters, intending to induce Rockline into a
contract. To prove a claim of intentional misrepresentation, Rockline must show:
(1) that Jarden made a false representation to Rockline; (2) with knowledge or
belief of its falsity or with reckless indifference to the truth; (3) with intent to
induce action or inaction; (4) that Rockline’s response was taken in justifiable
reliance on the representation; and (5) an injury resulting from such reliance.49
Jarden argues that there is no evidence to support Rockline’s claim that
Jarden represented to Rockline that it would “produce canisters from an eight-
cavity production tool that were the same as the Prototype Canisters made from the
single-cavity Prototype Tool.”50 More specifically, Jarden argues that it is
manifest that Jarden could not have represented that the production canisters would
be “the same” because changes to the canister design were approved by Rockline
throughout the development process.51
49 Alltrista, 2013 WL 5210255, at *3 (citing Van Lake v. Sorin CRM USA, Inc., 2013 WL 1087583, at *12 (Del. Super. Feb. 15, 2013)). 50 Jarden Mot. Summ. J. at 21 (quoting Defendant’s Answer, Affirmative Defenses and Counterclaims ¶ 22 (“Rockline Answer and Countercls.”) (Trans. ID. 48066735)) (emphasis in Jarden Mot. Summ. J.). 51 Jarden Mot. Summ. J. at 21, Ex. BB at 7–8. 14 Rockline challenges Jarden’s characterization of Rockline’s allegations of
intentional misrepresentation. Rockline asserts that Jarden represented that the
production canisters would have the same material composition as the prototype
canisters. 52 Specifically, Rockline points to a September 2010—pre-Supply
Agreement—email exchange between Mike Zaagman (“Zaagman”), a Jarden
employee, and Benz, a Rockline employee. 53 In this exchange, Benz notifies
Zaagman that the Litepak material specification in Rockline’s possession did not
identify who Jarden’s resin supplier was or what resin number Jarden utilized in its
production.54 Benz asked Zaagman to supply this information. 55 In response,
Zaagman stated that he “forwarded the material spec[ification] sheet for the
polypropylene based material already . . . [it] is a Jarden specialty blend.” 56 To
support its assertion that this exchange evidences an actionable misrepresentation,
Rockline points to evidence that the resin used in the prototype canisters was not a
“specialty blend,” and that the material characteristics of the production canister
were significantly different than the prototype canisters.57
There are genuine issues of material fact in dispute with regard to whether
Jarden intentionally misrepresented the material composition of the prototype
52 Rockline Resp. at 27–28. 53 Rockline Resp., Ex. W. 54 Id. 55 Id. 56 Id. 57 Rockline Resp., Ex B Deposition of Chris Navratil at 383:14–23, Ex. O Expert Report of Paul J. Gramann at 19. 15 canister with the intent to induce Rockline to enter the Supply Agreement, and
whether Rockline reasonably relied on those misrepresentations. 58
Jarden argues that the parol evidence rule and the economic loss doctrine
preclude Rockline’s intentional misrepresentation claim. 59 First, to the extent that
Jarden’s parol evidence argument rehashes its argument that the Supply
Agreement’s integration clause precludes Rockline’s intentional misrepresentation
claim, the Court will not reconsider its conclusion that “[b]ecause the Supply
Agreement’s integration clause contains no explicit anti-reliance language,
Rockline is not barred from bringing a claim for intentional misrepresentation.”60
Second, the parol evidence rule does not bar proof of claims alleging fraud in the
inducement of a contract. 61 And last, the economic loss rule does not preclude
Rockline’s intentional misrepresentation claim because the allegations go to the
inducement of the contract, not to Jarden’s performance. 62
58 Rockline’s Counterclaims were amended to conform its intentional misrepresentation claim to the evidence proffered on Jarden’s Motion for Summary Judgment. Pretrial Stipulation at 33–37; Mar. 7, 2016 Amended Judicial Action Form (Trans. ID. 58688961). 59 Jarden Mot. Summ. J. at 22–26; see Brasby v. Morris, 2007 WL 949485, at *7 (Del. Super. Mar. 29, 2007) (“[A]s a general rule, ‘in order for contract and tort claims to co-exist in an action, the plaintiff must allege that the defendant breached a duty that is independent of the duties imposed by the contract.’”) (quoting McKenna v. Terminex Int'l Co., 2006 WL 1229674, at *2 (Del. Super. Mar. 13, 2006)). 60 Alltrista, 2013 WL 5210255, at *6. 61 26 Williston on Contracts § 69:2 (4th ed.) (citing Restatement (Second) of Contracts § 216) (“A written contract containing a merger clause can nevertheless be avoided for antecedent fraud or fraud in its inducement, and the parol evidence rule does not stand in the way of proof of such fraud.”). 62 Brasby, 2007 WL 949485, at *7. 16 2. Breach of the Covenant of Good Faith and Fair Dealing
Jarden argues that Rockline’s counterclaim for breach of the covenant of
good faith and fair dealing should be dismissed because “the implied covenant of
good faith and fair dealing will not add requirements to a contract.” 63 This Court
denied Jarden’s Motion to Dismiss on Rockline’s claim of breach of the implied
covenant of good faith and fair dealing because Rockline sufficiently alleged a
specific implied contractual obligation that Jarden and Rockline would work
together to determine why the canisters failed.64 The Court will not revisit the
decision.
3. Promissory Estoppel and Unjust Enrichment
Jarden argues that the Court should grant summary judgment on Rockline’s
promissory estoppel claim because “Rockline seeks to recover [payments] in this
action [that] are contemplated and/or otherwise precluded by the Supply
Agreement, making promissory estoppel an inappropriate means to recover those
funds.”65 Similarly, Jarden argues that Rockline cannot recover on a claim of
unjust enrichment because the Supply Agreement is the measure of the parties’
rights in this case.
63 Jarden Mot. Summ. J. at 27. 64 Alltrista, 2013 WL 5210255, at *7. 65 Jarden Mot. Summ. J. at 29–30. 17 In its decision on Jarden’s Motion to Dismiss, the Court held, “[t]o the
extent that Rockline has made payments that are expressly contemplated by the
Supply Agreement, it must seek to recover that money under its breach of contract
claim.” 66 Rockline does not dispute this decision, but argues that damages on its
promissory estoppel claim and unjust enrichment claim would encompass costs
incurred by Rockline before the execution of the Supply Agreement. And, in the
event of rescission, the Supply Agreement would no longer preclude recovery of
damages in tort. 67
Jarden has not met its burden of proof as the moving party on summary
judgment to show that there are no genuine issues of material fact relating to
Rockline’s ability to show damages on its promissory estoppel or unjust
enrichment claims. 68
66 Alltrista, 2013 WL 5210255, at *10. 67 Rockline Resp. at 32–33. 68 Jarden’s arguments about Rockline’s potential damages if the parties relationship defaults to the LOU were raised for the first time in its reply brief. The record is not sufficient for the Court to rule on these arguments, and the Court will not consider them at this time. In re Asbestos Litig., 2012 WL 2389898, at *1 (Del. Super. June 22, 2012) (“The practice of adding arguments for summary judgment after the opening brief ‘has been expressly prohibited by this Court’ numerous times.”) (quoting In re Asbestos Litig.:Montgomery, 2011 WL 5395554, at *3 (Del. Super. Sept. 28, 2011)). 18 V. CONCLUSION
For the foregoing reasons, Plaintiff Alltrista Plastics, LLC d/b/a Jarden
Plastic Solutions’ Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
/s/Jan R. Jurden Jan. R. Jurden, President Judge