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Due Forni LLC v. Euro Restaurant Solutions, Inc.

United States District Court, D. Maryland, Southern Division

October 15, 2018



          Paul W. Grimm United States District Judge.

         This acrimonious litigation concerns the purchase by Plaintiff Due Forni, LLC (“Due Forni”) of pizza ovens that (among other shortcomings) did not reach the required temperature for making authentic Neapolitan pizzas, as Defendants Euro Restaurant Solutions, Inc. (“ERS”) and its president Francesco Marra allegedly claimed they would.[1] Am. Compl., ECF No. 10. Now pending is a motion to dismiss Due Forni's breach of contract claim-a motion ERS filed following an initial dismissal of that claim, a denial of Plaintiff's motion for reconsideration, and a reversal by the Fourth Circuit. ECF No. 120.[2] Notably, Due Forni claims that ERS breached both the contract for its initial purchase of two ovens (“First Contract”) and its subsequent contract for the purchase of two additional ovens (“Second Contract”). Because the parties both attach evidence that presents a genuine dispute of material fact, I will treat ERS's motion as one for summary judgment pursuant to Fed.R.Civ.P. 12(d) and deny it as to the First Contract, as a genuine dispute of material fact exists regarding Due Forni's ability to prevail in its claims. As to the Second Contract, however, I will grant the motion because the alleged circumstances do not involve a breach of the contract.


         In the First Contract, the parties agreed that Due Forni would purchase from ERS two pizza ovens, specially designed for making Neapolitan pizza and purportedly manufactured by Cirigliano Forni, an Italian company. Am. Compl. ¶¶ 12, 16, 21-22. Due Forni took possession of the ovens in January 2011. Id. ¶ 29. Allegedly, the ovens did not match their specification or work properly, and it turned out that they were not manufactured by Cirigliano Forni. Id. 29, 31-35, 38-39, 48-50. Despite these shortcomings and ERS's failure to remedy them when Due Forni complained, Due Forni entered into the Second Contract and paid ERS $25, 900 as a deposit on two additional ovens on December 14, 2012. Id. ¶¶ 31-45, 51-52. Upon learning in March 2013 that the original ovens it purchased were not Cirigliano Forni ovens, Due Forni cancelled its order for the additional two ovens and demanded a return of its deposit. Id. ¶¶ 53- 56. After ERS refused to return the deposit, id. ¶ 57, Due Forni sued Defendants on December 23, 2013 for fraud in the inducement, fraud, breach of both contracts, conversion, and unjust enrichment. Compl., ECF No. 1; Am. Compl.

         In its breach of contract claim, Due Forni alleged that, with regard to the first two ovens, “DEFENDANT ERS failed to deliver the purchased ovens and instead substituted two Morello Forni 110-cm floor ovens, presented and marked as if they were Cirigliano Forni ovens, ” such that “PLAINTIFF was denied the benefit of the bargain and suffered reasonably foreseeable damages including lost profits, contribution to fixed overhead, and other compensable injuries to be proved at trial.” Am. Compl. ¶¶ 79-80. And, with regard to the two additional ovens, Due Forni alleged that “[w]hen PLAINTIFF discovered DEFENDANT ERS' prior breach on the first order and its fraudulent conduct, PLAINTIFF cancelled the order and demanded the refund of its [$25, 900] deposit, ” which “DEFENDANT ERS . . . refused to return . . ., causing PLAINTIFF to suffer damages in the form of the lost funds and the ability to use them.” Id. ¶¶ 82-83.

         A motion to dismiss eliminated the breach of contract and conversion claims that Due Forni lodged against Defendants, while the remaining claims for fraud proceeded to trial. June 25, 2014 Mem. Op. & Order, ECF No. 16. The dismissal of the breach of contract claim was- erroneously-for lack of subject matter jurisdiction. Id. But, notably, I also stated that Due Forni could not state a claim for breach of contract, based on the contractual provisions (“Terms and Conditions”) that Defendants attached to their motion to dismiss. Id. Due Forni, in failing to oppose the motion, had not disputed the authenticity of the Terms and Conditions or that they were a part of the governing contract.

         The Terms and Conditions provided:

10. Claims.
Customer shall inspect all Products immediately upon receipt. All claims, whether for defective or non-conforming Products, shortages, delays, or failures in shipment or delivery, or for any other cause, shall be deemed fully waived and released by Customer, unless made in writing and delivered to ERS within 24 hours after delivery, stating full particulars in support of Customer's claim, in which event, Customer shall fully cooperate with ERS's instructions to Customer in connection therewith. Upon timely receipt of such written notice, and upon return to ERS of the Products involved, Euro will at its option replace or repair the Products or adjust the invoice involved, provided however: THE PARTIES AGREE THAT CUSTOMER MAY NOT RECOVER FROM ERS UNDER ANY LEGAL THEORY, AND UNDER NO CIRCUMSTANCES SHALL ERS BE LIABLE TO THE CUSTOMER OR TO ANY THIRD PARTY WITH WHOM CUSTOMER DEALS FOR, ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOSSES, OR EXPENSES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURY TO PERSON, PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, COST OF PURCHASED OR REPLACEMENT PRODUCTS, OR CLAIMS OF CUSTOMERS, NOR SHALL ERS BE LIABLE IN ANY CASE FOR ANY AMOUNT IN EXCESS OF THE PRICE ACTUALLY PAID BY CUSTOMER TO ERS FOR THE PRODUCTS IN QUESTION. EXCEPT AS EXPRESSLY PROVIDED IN THE PRECEDING SENTENCE, ALL SALES ARE FINAL. ANY ACTION BY CUSTOMER AGAINST ERS FOR BREACH, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY MUST BE COMMENCED WITHIN ONE YEAR AFTER THE DATE OF DELIVERY OF THE PRODCUTS [sic] INVOLVED.CUSTOMER WAIVES TRIAL BY JURY AS TO ITS CLAIMS.

Terms & Conditions ¶ 10, ECF No. 120-2 (emphases added).

         Due Forni then moved for reconsideration, insisting that the Terms and Conditions were not a part of the parties' contracts. ECF No. 17. Because Due Forni failed to show that the facts relied upon to support its motion for reconsideration had not been available to it previously (or obtainable through the exercise of due diligence), I denied its motion. Nov. 6, 2014 Mem. Op. & Order, ECF No. 29; see Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 411 (4th Cir. 2010) (noting that a Rule 59(e) motion for reconsideration “need not be granted unless the district court finds that there has been an intervening change of controlling law, that new evidence has become available, or that there is a need to correct a clear error or prevent manifest injustice”); Cezair v. JPMorgan Chase Bank, N.A., No. DKC-13-2928, 2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014) (noting that this Court applies Rules 59(e) and 60(b) standards to Rule 54(b) motions for reconsideration).

         Following a jury trial that resulted in a defense verdict on the fraud claims, ECF No. 101, Due Forni appealed the dismissal of the breach of contract claim, ECF No. 102. The Fourth Circuit reversed and remanded the breach of contract claim, after concluding that this Court had subject matter jurisdiction over it. The Fourth Circuit explicitly declining to decide “whether the court properly concluded that the Terms and Conditions operate to limit Due Forni's potential contractual remedy to an amount below $75, 000.” Id.

         Pending Motion

         ERS has filed a new Motion to Dismiss, once again asserting that the Terms and Conditions are part of the contract, ECF No. 120-2. It insists that, based on this Court's June 25, 2014 Memorandum Opinion and Order dismissing the contract claim, it is the law of the case that the Terms and Conditions bar Due Forni's recovery. ERS also attached an ...

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