UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-1978

BIOIBERICA NEBRASKA, INC.,

Plaintiff - Appellant,

v.

NUTRAMAX MANUFACTURING, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. 

Stephanie A. Gallagher, District Judge. (1:18-cv-03133-SAG)

Argued: December 6, 2022 Decided: January 4, 2023

Before NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Lawrence J. Gebhardt, GEBHARDT & SMITH, LLP, Baltimore, Maryland, 

for Appellant. Jeffrey Stuart Patterson, K&L GATES, LLP, Boston, Massachusetts, for 

Appellee. ON BRIEF: Gregory L. Arbogast, Robert T. Nanovsky, GEBHARDT & 

SMITH LLP, Baltimore, Maryland, for Appellant. Christopher S. Finnerty, Jennifer 

Janeira Nagle, Boston, Massachusetts, Meghan E. Flinn, K&L GATES LLP, Washington, 

D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

This case involves a “battle of the forms” under the Uniform Commercial Code, as 

adopted in Maryland. 

On August 14, 2017, Nutramax Manufacturing, Inc., a Maryland corporation, issued 

a purchase order to Bioiberica, S.A.U., a Spanish corporation located in Barcelona, Spain, 

for 18,000 kilograms of sodium chondroitin sulfate (a product used in the manufacture of 

drugs to treat osteoarthritis), to be delivered to Nutramax in three separate shipments of 

6,000 kilograms each. Following receipt of the purchase order, Bioiberica shipped the first 

installment, which Nutramax received and accepted. Both Bioiberica and Bioiberia’s 

subsidiary, Bioiberica Nebraska, Inc., a Nebraska corporation, apparently submitted an 

invoice for payment of the first shipment, which Nutramax paid. The two later shipments 

were interrupted by Spanish customs issues, and Bioiberica directed Bioiberica Nebraska 

to fill the remainder of the order from its inventory. After receiving the next two shipments, 

Nutramax delayed payment, prompting Bioiberica Nebraska to commence this action for 

payment. Nutramax thereafter paid for the two shipments, but Bioiberica Nebraska 

nonetheless continued this action to recover interest and collection costs, including

attorneys fees, as provided by the terms of its invoice. Interest and collection costs were 

not, however, provided for in Nutramax’s original purchase order, nor in Bioiberica’s 

invoice. In a motion to dismiss, Nutramax argued that its purchase order controlled the 

terms of the transaction as Bioiberica shipped product in response to the purchase order 

without taking any exception to its terms. See Md. Code, Com. Law §§ 2–206, 2–207.

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In its third-amended complaint, Bioiberica Nebraska alleged that it — as distinct 

from Bioiberica — was entitled to sue Nutramax because there had been a novation in 

which it and Nutramax became the operative parties to the transaction or, alternatively, that 

Bioiberica assigned its contract to Bioiberica Nebraska, giving Bioiberica Nebraska the 

right to sue for interest and attorneys fees, as provided by the terms of its invoices for 

payment of the material. Bioiberica Nebraska alleged that Nutramax, by agreeing to 

receive material from Bioiberica Nebraska and by paying Bioiberica Nebraska for the 

shipments, agreed to a novation or assignment. Nutramax denied agreeing to any novation 

or assignment, arguing that its contract was with Bioiberica in Spain and that the contract 

prohibited assignment. Also, no term of that contract provided for interest and collection 

costs — no such provision was contained in either Nutramax’s purchase order or in

Bioiberica’s invoice. 

Bioiberica Nebraska also attempted to file a fourth-amended complaint based on its 

recent discovery of Bioiberica Nebraska’s first invoice. It claimed that in light of the 

discovered invoice, its theories of novation or assignment were no longer needed. The 

district court denied leave to file the fourth-amended complaint, concluding, among other 

things, that the new invoice would not, in any event, advance Bioiberica Nebraska’s cause.

Addressing the third-amended complaint on the parties’ cross-motions for summary 

judgment, the district court granted judgment to Nutramax, concluding that the facts 

necessary for a novation, or indeed an assignment, both of which would require Nutramax’s 

consent, had not been sufficiently alleged.

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Having carefully reviewed the record and received the arguments of counsel, we 

affirm, substantially for the reasons given by the district court in its various orders 

addressing the issues on Nutramax’s multiple motions to dismiss Bioiberica Nebraska’s 

various complaints and the parties’ cross-motions for summary judgment.

Bioiberica Nebraska also challenged the district court’s order sanctioning it for 

filing a motion to file a fourth-amended complaint (the fifth complaint in the case) on the 

ground that Bioiberica Nebraska’s counsel acted in bad faith by repeatedly ignoring the 

district court’s directions and admonitions during the course of the proceedings. The court 

awarded Nutramax $4,727.50 to cover its expenses in responding to the motion to file the 

fourth-amended complaint. 

Again, based on our review of the relevant record, we conclude that the district court 

did not commit any error of law, nor did it abuse its discretion. We thus also affirm the 

court’s ruling on sanctions.

The judgment of the district court is accordingly

AFFIRMED.

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