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United States District Court, S.D. Ohio, Eastern Division.


Case No. 2:20-cv-3415

Decided: November 29, 2021

Michael A. Roberts, Graydon Head & Ritchey LLP, Cincinnati, OH, Thomas A. Prewitt, Graydon Head & Richey, Ft. Mitchell, KY, for Plaintiff. Steven C. Coffaro, Collin L. Ryan, Keating Muething & Klekamp, PLL, Cincinnati, OH, for Defendant.


The parties, JSW Steel USA Ohio, Inc. (“Plaintiff”) and Marubeni-Itochu Steel America, Inc. (“Defendant”), have filed cross motions for summary judgment. ECF Nos. 14 & 15. For the following reasons, Defendant's motion is DENIED, and Plaintiff's motion is GRANTED IN PART.


Plaintiff is a steel manufacturing company with a manufacturing plant in Mingo Junction, Ohio. Compl. ¶ 6, ECF No. 3. Defendant is a steel and aluminum processor based in New York. Tanaka Decl. ¶ 3, Def.’s Mot. Ex. A, ECF No. 15-1 (“Tanaka Decl.”); Compl. ¶ 2, ECF No. 3. Before negotiating the order at issue, Defendant had purchased products from Plaintiff on one prior occasion. Compl. ¶ 7, ECF No. 3.

The parties began negotiating the steel order at issue on February 19, 2020. Raimondi Decl. 30–31, Pl.’s Mot. Ex. A, ECF No. 14-1(“Raimondi Decl.”); Tanaka Decl. 33, ECF No. 15-1. They went back and forth negotiating various terms, including the price, quantity, size, grade, and delivery details of a proposed order. Tanaka Decl. 20–33, ECF No. 15-1. Plaintiff's representative mentioned three times during these conversations that he would need to get internal approval for an order. Raimondi Decl. 21–22, 24, ECF No. 14-1.

On March 3, 2020, a phone conversation took place between the parties. Id. at 19. Following that conversation, the same day, Defendant emailed Plaintiff, “per [the] phone instruction, we accept net 45 days ․” Id. In that same email, Defendant said “[f]ollowing are details of our P[urchase] O[rder]” followed by details for three “lots” including delivery, shipment, and payment terms. Id. Plaintiff replied to that email saying, “Thank you [Defendant's Representative] to make this work. We will get these in our system tomorrow and send acknowledgments.” Id. The next morning, Plaintiff followed up, informing Defendant that one of the steel sizes would not work, asking, “Do you want to add something else or just cancel this line?” Id. at 18. Plaintiff did not attach an acknowledgment form to that email and instead wrote, “We will send acknowledgment after your confirmation.” Id.

The emails reflect that the parties also had a phone conversation the morning of March 4, 2020. Id. at 17. Then, Defendant emailed a response about the steel sizes not working, giving new numbers for the order. Id. Plaintiff responded on March 5, 2020, saying “Thank you for the update we have updated the tonnage for that line 12 from 220 to 286” to which Defendant replied, “Thank you very much for your confirmation.” Id. at 16–17. The parties continued to make modifications on March 5, 2020, and March 6, 2020, with Defendant emailing requests and Plaintiff confirming the changes were made both times. Id. at 10–13.

Then, on March 9, 2020, Defendant sent Plaintiff an email with three attached “Purchase Confirmation and Contract” documents. Id. at 9–10, Ex. B. Plaintiff responded the next day with three “acknowledgment” documents. Id. at 9, Ex. C. Both parties acknowledge that Plaintiff's documents and Defendant's documents contained different terms and conditions, with “[Plaintiff's] terms being seller-friendly and [Defendant's] terms being buyer-friendly.” Pl.’s Mot. 10, ECF No. 14; Def.’s Mot. 5, ECF No. 15.

The parties went back and forth regarding which documents the other would be willing to sign. Defendant asked for its “Purchase Confirmation and Contract” documents to be signed and returned on March 9, 2020, March 10, 2020, and March 12, 2020. Raimondi Deck 7–9, ECF No. 14-1. On March 12, 2020, Plaintiff responded to Defendant's requests, writing:

Thank you for your time on the phone. As discussed, we do not sign the PO from customers but we do send our acknowledgment with terms and conditions. Can you go through our acknowledgments and let us know if there is any concern on the acknowledgment. Even last time with your order we did not sign your PO. We just sent our acknowledgment. Let us know if the above works. If not we will have to involve our general coun[sel] and they will have to discuss with your coun[sel] and then we can proceed to sign.

Id. at 7. On March 18, 2020, Defendant responded to Plaintiff's email asking, “Would you please be kind enough to advise us what is wrong with our PO?” Id. at 6.

Without a response from Plaintiff, on March 23, 2020, Defendant informed Plaintiff that it would no longer be moving forward with the order, specifically that it was “no longer able to honor such 3 [purchase orders] due to [Plaintiff's] rejection of signatory in spite of [Defendant's] repeated requests.” Id. at 4–5. Also in that email, Defendant noted that COVID had an impact on the company and that although the price of crude oil was $47.25 at the time the parties “negotiated a business,” it had since decreased to $22.92. Id. at 5. Defendant also said that while it was “hearing of order cancellations throughout the country,” it would be willing to “cooperate but [would] need to adjust the pricing.” Id.

Plaintiff responded that it could not accept Defendant's rejection, as the proposed order had already been halfway produced, with the first barge leaving for delivery the next day. Id. at 3–5. Defendant answered that it would “stand on [it's] cancellation based on [Plaintiff's] failure to sign [Defendant's documents].” Id. at 1–2. When Defendant refused to accept the goods, Plaintiff resold the product to different buyers for a loss. Pl.’s Mot. 6, ECF No. 14.

In its Complaint, Plaintiff asserts two causes of action: (1) breach of contract; and (2) declaratory judgment. Compl. ¶¶ 45–54, ECF No. 3. The parties have now filed cross motions for summary judgment. ECF Nos. 14 & 15. This matter has been fully briefed and is ripe for review.


The standard governing summary judgment is set forth in Federal Rule of Civil Procedure 56(a), which provides: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The Court must grant summary judgment if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir. 2007).

When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, who must set forth specific facts showing there is a genuine dispute of material fact for trial, and the Court must refrain from making credibility determinations or weighing the evidence. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Pittman v. Cuyahoga Cty. Dept. of Children and Family Serv., 640 F.3d 716, 723 (6th Cir. 2011). The Court disregards all evidence favorable to the moving party that the jury would not be required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Summary judgment will not lie if the dispute about a material fact is genuine, “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal citations and quotation marks omitted); see also Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009).

The Court is not “obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). The Court may rely on the parties to call attention to the specific portions of the record that demonstrate a genuine issue of material fact. Wells Fargo Bank, N.A. v. LaSalle Bank N.A., 643 F. Supp. 2d 1014, 1022 (S.D. Ohio 2009).


This action was removed from Ohio state court under this Court's diversity jurisdiction; therefore, Ohio substantive law applies. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Article 2 of the Uniform Commercial Code, as adopted by Ohio, applies to transactions involving the sale of goods and, accordingly, governs the claims in this case. The Court will address each of Plaintiff's causes of action in turn.

A. Breach of Contract

The essential elements of a breach of contract claim are: (1) the existence of a contract; (2) performance by the plaintiff; (3) the defendant's breach; and (4) damages or loss to the plaintiff. Kline v. Mortg. Elec. Registration Sys., Inc., No. 16-3932, 2017 WL 3263745, at *8 (6th Cir. Aug. 1, 2017) (citing Siemaszko v. FirstEnergy Nuclear Operating Co., 187 Ohio App. 3d 437, 444, 932 N.E.2d 414 (Ohio Ct. App. 2010)). In this case, the element at issue is whether a contract existed between the parties.

A valid contract arises as the result of an offer, acceptance, the manifestation of mutual assent, and consideration. Kostelnik v. Helper, 96 Ohio St.3d 1, 770 N.E.2d 58, 61 (2002). It becomes binding the moment the offer is accepted. Dyno Const. Co. v. McWane, Inc., 198 F.3d 567, 572 (6th Cir. 1999) (citing Helle v. Landmark, Inc., 15 Ohio App. 3d 1, 8, 472 N.E.2d 765 (Ohio Ct. App. 1984)).

The parties disagree about whether a contract was formed. Plaintiff argues that a contract formed on March 3, 2020, as a result of the parties’ email discussions. Defendant argues that no contract ever arose.

1. A contract formed between the parties.

Plaintiff contends that a contract between the parties arose on March 3, 2020, when Defendant sent Plaintiff purchase order numbers and details (an offer), and Plaintiff replied, “We will get these in our system tomorrow and send acknowledgments” (an acceptance). Pl.’s Mot. 7, ECF No. 14. Plaintiff's argument is incorrect because Plaintiff's response did not constitute an acceptance. However, although no contract was formed based on that email response, a contract did form between the parties. Defendant's arguments to the contrary are unavailing.

a. Defendant's March 3, 2020 email constituted an offer.

An offer is defined as a “manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Leaseway Distribution Ctrs., Inc. v. Dep't of Admin. Services, 49 Ohio App.3d 99, 550 N.E.2d 955, 961 (Ohio Ct. App. 1988) (quoting Restatement (Second) of Contracts § 24 (1981)).

Traditionally, a purchase order is deemed an offer.1 Babcock & Wilcox Co. v. Hitachi Am., Ltd., 406 F. Supp. 2d 819, 827 (N.D. Ohio 2005); Am. Bronze Corp. v. Streamway Prod., 8 Ohio App. 3d 223, 227, 456 N.E.2d 1295 (Ohio Ct. App. 1982). Here, Defendant did not submit a purchase order document on March 3, 2020, but did send Plaintiff a detailed email, which read in part: “[f]ollowing are details of our P[urchase] O[rder].” The email contained lot numbers, quantities, and shipping, delivery, price, and payment terms. Raimondi Decl. 19, ECF No. 14-1. This email constituted an offer.

b. Plaintiff did not accept Defendant's offer on March 3, 2020.

Although the Court agrees with Plaintiff that Defendant's email on March 3, 2020, constitutes an offer, the Court disagrees that Plaintiff's response that it would “get these in our system tomorrow and send acknowledgments” was an acceptance of the offer. Ohio law provides that “unless otherwise unambiguously indicated by the language or circumstances: ․ an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances.” Ohio Rev. Code § 1302.09(A). However, future intent to accept an offer does not constitute present acceptance of an offer. Camden v. Kain, No. 93APE11-1518, 1994 WL 232233, at *3 (Ohio Ct. App. May 26, 1994) (“A mere expression of a future intent to enter into a contract does not bind either party nor result in an enforceable contract.”). “As long as both parties contemplate that something remains to be done to establish contractual relationship, no contract has been made.” Gen. Motors Corp. v. Keener Motors, Inc., 194 F.2d 669, 676 (6th Cir. 1952).

Here, Plaintiff expressed at most an intent to accept Defendant's offer the next day; its email reads as a confirmation of receipt. Although Plaintiff maintains that its email was definite enough to amount to an acceptance, it was only definite in saying Plaintiff would accept the next day. Plaintiff did not accept Defendant's offer as a result of its March 3, 2020 email.

Then, the next day, Plaintiff emailed Defendant saying “All sizes look good except .127 min × 72 which is line 7 of lot 1 ․ Do you want to add something else or just cancel this line? We will send acknowledgment after your confirmation.” Raimondi Decl. 18, ECF No. 14-1. This response was not an acceptance of Defendant's offer.

c. The parties had a meeting of the minds.

After Plaintiff sent that email on March 4, 2020, a phone call took place between the parties. Raimondi Decl. 17, ECF No. 14-1. No party offered evidence regarding what was said during that phone call. Defendant then emailed Plaintiff a list of changes requested for “LOT-1.” Id. at 17–18. This constituted a new offer. In response, Plaintiff said “[t]hank you for the update we have updated the tonnage for that line 12 from 220 to 286.” Id. This email constituted an acceptance. The parties had a meeting of the minds, and a contract formed. This finding conforms with the UCC's “liberal view of what is required to create a contract for the sale of goods.” Am. Signature, Inc. v. Extreme Linen, LLC, No. 2:12-CV-00601, 2015 WL 1476751, at *16 (S.D. Ohio Mar. 31, 2015) (citing Am. Bronze Corp. v. Streamway Prods., 8 Ohio App. 3d 223, 456 N.E.2d 1295 (Ohio Ct. App. 1982) and Architectural Metal Sys., Inc. v. Consol. Sys., Inc., 58 F.3d 1227, 1230 (7th Cir. 1995)).

After the contract formed, Defendant responded to Plaintiff saying, “[t]hank you very much for your confirmation.” Raimondi Decl. ¶ 16, ECF No. 14-1. Id. at 16. In the same email, Defendant requested a modification to the contract, namely that Plaintiff would “change shipping marks as follows.” Id. Plaintiff responded, “no problem ․ I have made the P[urchase] 0[rder] changes you have marked below. Everything is updated at this point, thank you!” Id. A similar request was made on March 6, 2020, when Defendant sent a bullet point list of a few changes it was “kindly” requesting. Id. at 13. Plaintiff responded to each request for modification individually. Id. Before formal purchase order and acknowledgment documents were sent, Plaintiff had even told Defendant that not only were all the modifications it had requested approved and updated, so were the “production work orders.” Id. at 10.

Parties to a contract are free to modify it. Ohio Rev. Code § 1302.12; U.C.C. § 2–209(1); Roth Steel Prod. v. Sharon Steel Corp., 705 F.2d 134, 145 (6th Cir. 1983) (explaining that “[t]he ability of a party to modify a contract which is subject to Article Two of the Uniform Commercial Code is broader than common law, primarily because the modification needs no consideration to be binding” (citations omitted)). Accordingly, these modifications by the parties do not negate the existence of a contract.

2. Defendant's arguments that no contract formed are unavailing.

Defendant makes several arguments that the Court should not find a contract exists between the parties. First, Defendant argues that no contract exists because the parties had the intent to reduce the agreement to writing. “In Ohio, when parties intend that their agreement shall be reduced to writing and signed, no contract exists until the written agreement is executed.” Curry v. Nestle USA, Inc., 225 F.3d 658, 2000 WL 1091490 at *7 (6th Cir. 2000) (internal citation omitted).

In support of this argument, Defendant points to its March 3, 2020 offer, explaining that in that “very communication” Defendant stated it would be “issuing [purchase orders] to formalize it's order of the goods.” Def's Reply 1, ECF No. 19. Not so, based on the Court's read. No where in Defendant's March 3, 2020 email does it state it will be issuing purchase orders, let alone that the purchase orders will finalize the order. Still, Defendant maintains that the “emails prior to the exchange of purchase orders and acknowledgments all contemplated future approval or confirmation in the form of written purchase orders and acknowledgments,” also pointing to Plaintiff's need to get “internal approval” on the order. Def.’s Mot. 11 n.2, ECF No. 15.

Plaintiff's response is that the “emails plainly reflect present intent to proceed with the orders, not to engage in continuing negotiations, not to continue development, and not to seek further negotiations.” Pl.’s Reply 9, ECF No. 17. However sparse that response may be, the Court agrees. Plaintiff's representative mentioned his need to get internal approval for an order three times during the parties’ preliminary negotiations. Raimondi Decl. 21–22, 24, ECF No. 14-1. However, after the contract was formed as outlined above, Plaintiff never mentioned a need to get approval again. Further, Plaintiff did not push Defendant to send along formal documents. Instead, the subsequent email conversations make clear that the parties had a meeting of the minds and additional approval was not needed.

Second, Defendant argues that the parties could not have contracted because they never agreed on the necessary flatness term. Under Ohio law, a contract must be “specific as to its essential terms” in order to be enforceable. Alligood v. Procter & Gamble Co., 72 Ohio App. 3d 309, 311, 594 N.E.2d 668 (Ohio Ct. App. 1991) (listing “the identity of the parties to be bound, the subject matter of the contract, consideration, a quantity term, and a price term” as examples of the essential terms). Defendant argues that the flatness term is an essential term of the contract because Defendant would not have contracted without that as a term of the agreement. The Court need not analyze whether this is truly an essential term, because regardless of its status, it is included in the contract.

Defendant included an “attached specification” that listed that there could be “NO OSCILLATION OR COIL BREAKS, FOR LEVELING INTO PANEL FLAT SHEETS/PLATES” in its March 3, 2020 offer email. Compl. Ex. A, ECF No. 3. The same language was included in Defendant's purchase order documents. Defendant is concerned that Plaintiff's acknowledgment documents “did not recognize, confirm, or even mention” these requirements. Def.’s Mot. 5, ECF No. 15. That the acknowledgment documents did not mention the flatness requirement is immaterial. The contract formed before the acknowledgment was sent, and when it formed, Plaintiff did not object to the term. See Energy Mktg. Servs., Inc. v. Homer Laughlin China Co., 186 F.R.D. 369, 375 (S.D. Ohio 1999), aff'd, 229 F.3d 1151 (6th Cir. 2000) (finding no meeting of the mind about a dickered-for term when one party “insisted upon” its removal from the contract and the other “vehemently objected”). The flatness term was a term of the contract.

Finally, Defendant argues that Plaintiff's “acceptance” was expressly conditioned on Defendant assenting to all of its terms, and, therefore, no contract formed.2 If Plaintiff's acceptance was its acknowledgement form, Defendant's argument would prevail. If an acceptance is expressly made conditional on assent to additional or different terms, it is not a valid acceptance. See McJunkin Corp. v. Mech., Inc., 888 F.2d 481, 488 (6th Cir. 1989) (finding no contract where an acknowledgment form read “ACCEPTANCE OF THIS CONTRACT IS EXPRESSLY CONDITIONED ON PURCHASER'S ․ ASSENT TO ALL OF THE ․ CONDITIONS”). Indeed, Ohio law provides that:

A definite and seasonable expression of acceptance or a written confirmation that is sent within a reasonable time operates as an acceptance even though it states terms additional or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

Ohio Rev. Code § 1302.10(A) (emphasis added); see also UCC § 2-207.

In this case, however, a contract had already formed by the time Plaintiff sent its acknowledgment document. So, even though that document contained language making it expressly conditioned on Defendant's assent to its terms, it does not negate the already formed contract. Accordingly, this statute is not directly on point. Instead, the Comments to Ohio Revised Code § 1302.10 provide that:

[A] proposed deal which in commercial understanding has in fact been closed is recognized as a contract. Therefore, any additional matter contained in the confirmation or in the acceptance falls within subsection (2) [(B)] and must be regarded as a proposal for an added term unless the acceptance is made conditional on the acceptance of the additional or different terms.

Ohio Rev. Code Ann. § 1302.10, cmt. 2. Here, a commercial understanding was closed, and a contract formed. Accordingly, the terms contained in the acknowledgment “are to be construed as proposals for addition to the contract.” Ohio Rev. Code Ann. § 1302.10(B); see also Waukesha Foundry, Inc. v. Indus. Eng'g, Inc., 91 F.3d 1002, 1007 (7th Cir. 1996) (applying the equivalent UCC provision and explaining that “[o]nce the existence of a contract is established, we must refer to UCC § 2–207(2) to determine which, if any, additional terms contained in subsequent written confirmations become part of the agreement”). Whether the terms in the acknowledgment documents did in fact become part of the contract is not an analysis the Court must undertake at this juncture.

B. Declaratory Judgment

Plaintiff asks this Court to enter declaratory judgment as to the following:

(a) that a contract to purchase goods was formed on March 3, 2020 upon Defendant's delivery of purchase order numbers and detailed material terms to Plaintiff, pursuant to §§ 2-204, 2-206(1)(a) and 2-207(3) of the UCC [O.R.C. §§ 1302.07, 1302.08(A)(I) and 1302.10(C)]; (b) that the terms of that contract consist of those terms on which the writings of the parties agree, pursuant to § 2-207(3) of the UCC [O.R.C. § 1 302.10(C)]; (c) that Defendant's March 23, 2020 notification that it was “no longer able to honor” the purchase orders constituted a wrongful repudiation of that contract, pursuant to § 2-610 of the UCC [O.R.C. § 1302.68]; (d)that Defendant's failure to retract its repudiation pursuant to § 2-611 of UCC [O.R.C. § 1302.69] constitutes a breach of the contract, pursuant to § 2-703 of the UCC [O.R.C. § 1302.77]; (e)that Defendant is therefore entitled to the remedies provided by § 2-703 of the UCC [O.R.C. § 1302. 77], including the right to resell and recover as damages the difference between the resale price (yet to be finally determined) and the contract price ($1,644,680) together with any incidental damages, pursuant to § 2-706 of the UCC [O.R.C. § 1302.80].

Compl. ¶ 48, ECF No. 3. However, although this claim is included in the Complaint, the parties do not brief the issue; declaratory judgment is mentioned only once, in one of Plaintiff's briefs, in passing. Pl.’s Mot 2, ECF No. 14. Additionally, Plaintiff's theory of the case appears to have changed since the filing of this Complaint. Compare Compl. ¶ 48, ECF No. 3 (explaining that a contract formed upon Defendant sending its March 3, 2020 email) with Pl.’s Mot., ECF No. 14 (arguing that Defendant's March 3, 2020 email was an offer).

To the extent that Plaintiff is truly seeking a declaratory judgment, the issue must be briefed.


For these reasons, Defendant's Motion is DENIED; Plaintiff's motion is GRANTED IN PART as to the breach of contract claim. If Plaintiff is still seeking a declaratory judgment, it shall brief the issue within 14 days of the filing of this Opinion and Order. Defendant shall then have 14 days to reply.

The parties are encouraged to work together to determine an appropriate damages award on the breach of contract claim. However, to the extent they are unable to do so, the Court will hold a damages hearing in January 2022.



1.   Sometimes though, a purchase order can constitute an acceptance. This occurs when a price quotation is “sufficiently detailed and it ‘reasonably appear[s] from the price quotation that assent to that quotation is all that is needed to ripen the offer into a contract.’ ” Dyno Const. Co., 198 F.3d at 572 (citations omitted). The facts of this case present a good argument for Plaintiff that Defendant's March 3, 2020 email constituted an acceptance of Plaintiff's offer. The parties seemingly had already agreed to the terms, and Defendant appeared to be only confirming details in the March 3, 2020 email or formally accepting the offer. However, Plaintiff does not allege the same, and neither party includes any information about the phone call that took place. So, the Court is left to continue wading through the parties’ emails.



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