NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-4343

_____________

ECEM EUROPEAN CHEMICAL MARKETING B.V.,

Appellant

v.

THE PUROLITE COMPANY

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 05-cv-03078)

District Judge: Hon. Joel H. Slomsky

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Submitted Under Third Circuit LAR 34.1(a)

November 9, 2011

Before: SCIRICA, SMITH, and JORDAN, Circuit Judges.

(Filed: November 14, 2011)

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

This case arises out of a contractual dispute between ECEM European Chemical 

Marketing, B.V. (“ECEM”) and The Purolite Company (“Purolite”) for the sale of an 

organic compound called styrene monomer (“styrene”). ECEM appeals orders of the 

United States District Court for the Eastern District of Pennsylvania: (1) granting 

Purolite‟s motion in limine to exclude statements made by the parties during compromise

negotiations; (2) denying ECEM‟s motion for a new trial; (3) granting Purolite‟s request

to receive prejudgment interest at a rate of 6% per annum; and (4) reducing ECEM‟s 

award to include only the amount due in compensatory damages as a result of Purolite‟s 

breach. For the following reasons, we will affirm.

I. Background

ECEM is a company that distributes raw materials and is located in the 

Netherlands. Purolite is a Delaware corporation with its principal place of business in 

Pennsylvania. On December 16, 2003, Purolite entered a contract with ECEM (the “2003 

Contract”) under which ECEM would deliver a specified amount of styrene monthly to 

Purolite‟s factory in Victoria, Romania. The monthly amount was to be delivered by rail 

in two shipments. The 2003 Contract also provided that ECEM would bear all of the 

costs and risks of delivery to the Victoria factory. Thereafter, in March 2004, the parties 

agreed to increase the delivery amount to three shipments per month via rail through the 

Spring of 2005 (the “2004 Contract”). 

In November 2004, Purolite received only one shipment of styrene because ECEM 

mistakenly sent two of the three railcars meant for Purolite‟s Victoria factory to Ploesti, 
3

Romania. On December 10, 2004, Purolite‟s Materials Manager, Brian Wareham, sent 

an email to ECEM containing the following message:

[T]his is unacceptable. We know that these [railcars] have been in Ploesti 

since December 2nd. To put it politely, Schenker [ECEM‟s agent] needs to 

pull their finger out and make things happen. We have a maximum of oneweek styrene left. If, in the circumstances, we run out of material, a 

considerable compensation claim will be lodged with whoever is 

responsible for the delay.

Purolite exhausted its supply of styrene on December 14, 2004, and shut down its 

production lines for a one-week period. It allegedly sustained approximately 

$498,000.00 in damages as a result of that shutdown. The two misrouted railcars

eventually made it to Victoria on December 21, 2004. 

Following the misshipment, the parties‟ relationship deteriorated. Purolite‟s 

General Manager directed his employees to withhold payment for the two late shipments 

in the amount necessary to offset the losses Purolite sustained between December 14 and 

December 21, 2004. A dispute arose between the parties concerning whether Purolite 

was obligated to pay each invoice within ninety days of delivery or ninety days of the 

date of the initial invoice. Finally, ECEM declined to do business with Purolite, based 

upon its belief that “[Purolite] stopped paying their invoices that were due.” (SA at 50.)

Between January and June 2005, the parties began an email correspondence aimed 

at resolving their differences. During those discussions, ECEM consistently asserted that 

Purolite was contractually obligated to pay for each of the outstanding invoices due under 

the terms of the 2003 Contract. ECEM claims that, during those conversations, Purolite 
4

never stated that it suffered losses as a result of the delayed shipment of styrene in 

November 2004. 

On June 28, 2005, ECEM filed the present suit, alleging that Purolite breached its

contractual obligation by failing to pay for five shipments of styrene between October 13, 

2004 and December 9, 2004. ECEM sought compensatory damages in the amount of 

$449,027.601. It also sought statutory interest at a rate of 8%, plus interest at a “penalty” 

rate of 3.75% pursuant to a document entitled “General Terms and Conditions of Sale” 

(“GTCS”), and attorneys‟ fees, costs, and expenses.

2

 Purolite asserted a counterclaim for 

breach of contract, seeking damages caused by the two missed shipments in November 

2004. Purolite also filed a motion in limine seeking to exclude statements made by the 

parties during their compromise negotiations between January and June 2005. 

The District Court granted the in limine motion and the case went to trial. At the 

conclusion of the trial, and in accordance with the jury‟s verdict, the Court entered 

judgment in favor of Purolite and against ECEM for $245,213.00, and in favor of ECEM 

 

1

That figure represents a conversion from Euros.

2

The GTCS provides, in relevant part, that:

If the term of payment is exceeded all costs of collection, 

both in and out of court, shall be for the account of the Buyer

...

If the Buyer has not made payment within 8 days from the 

invoice date and also in the event the parties agree upon a 

term of payment of more than 8 days the Buyer shall pay the 

seller interest at the rate of 4% above the statutory interest.
5

and against Purolite for $785,725.00.3 Significantly, in answering interrogatories on the 

verdict sheet, the jury determined that the GTCS did not form a part of the 2004 

Contract.4

After the District Court entered judgment, the parties filed several post-trial 

motions. ECEM moved to vacate the District Court‟s order granting Purolite‟s motion in 

limine. The Court denied ECEM‟s motion because, it reiterated, under Federal Rule of 

Evidence 408, “an actual dispute existed [between the parties] in late 2004 and early 

2005 beyond mere business discussions over the payment timetable.” (J.A. at 21.) In 

particular, the District Court pointed to the following disputes: (1) “[Purolite‟s] failure to 

pay several invoices”; (2) “[Purolite‟s] contention regarding improper invoicing by 

[ECEM]”; (3) “[ECEM‟s] failure to provide [Purolite] with three (3) rail tank cars of 

styrene in November 2004”; (4) “[ECEM‟s] rejection of [Purolite‟s] contract proposal in 

December [2004]”; and (5) ECEM‟s decision to prematurely terminate the 2003 Contract. 

(Id.) ECEM also moved for a new trial on Purolite‟s counterclaim for damages. The 

Court denied that motion because it determined that “ECEM ... failed to show that it 

 

3 While ECEM‟s award consisted of $405,183.00 in principal, the source of the 

remaining $380,542.00 is unclear. 

4

The jury responded in the negative to the following interrogatory: “[d]o you find 

that Plaintiff ECEM has proven by a preponderance of the evidence that the [GTCS] 

referred to on the invoices formed a part of the contract with Defendant Purolite 

Company?” (JA at 81). 
6

suffered substantial injustice or was prejudiced by the [District] Court‟s ruling[s]” or that 

“the [District] Court erred in ruling on the pre-trial motions or at trial.”5 (J.A. at 38.)

Purolite also moved to amend the judgment, requesting an award of prejudgment 

interest in the amount of $80,037.52. The Court granted that motion based on its 

conclusion that “Purolite succeeded on its counterclaim,” and that “[j]ustice requires that 

Purolite receive prejudgment interest on its award under Pennsylvania law.” (JA at 52.) 

Purolite also moved to amend the judgment entered in favor of ECEM by reducing 

ECEM‟s award from $785,725.00 to the principal amount, $405,183.00. The Court

granted that motion because it found that “the jury committed a clear error of fact and 

law” by “returning a verdict in the amount of $785,725.00” even though the jury found

“that the GTCS did not form part of the contract” (J.A. 47), and that ECEM was entitled 

to interest at the statutory rate of 6% under Pennsylvania law. 

II. Discussion6

A. Exclusions of the Parties’ Compromise Negotiations

ECEM argues that the District Court abused its discretion by excluding statements 

the parties made during their email communications between January and June 2005. 

Specifically, ECEM contends that because there was no “dispute” between ECEM and 

Purolite as to the validity or amount of payment due under the 2004 Contract, the District 

 

5

ECEM also moved to vacate the judgment entered on June 10, 2010, in favor of 

Purolite in the amount of $245,213.00. However, the District Court denied that motion, 

and ECEM does not appeal that judgment. 

6 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. The District 

Court had jurisdiction pursuant to 28 U.S.C. § 1332. 
7

Court erred by excluding the parties‟ emails. Purolite responds that the Court did not 

abuse its discretion because, during the early 2005 time frame in question, Purolite put 

ECEM on notice of a potential “compensation claim” based on ECEM‟s failure to deliver 

two styrene shipments in November 2004, and because the parties were negotiating to 

avoid a breakdown in their business relationship. 

We review for abuse of discretion a district court‟s decision to admit or exclude 

evidence. Coleman v. Home Depot, Inc., 306 F.3d 1333, 1341 (3d Cir. 2002). “An abuse 

of discretion is a „clear error of judgment,‟ and not simply a different result which can 

arguably be obtained when applying the law to the facts of the case.” SEC v. Infinity 

Grp. Co., 212 F.3d 180, 195 (3d Cir. 2000) (quoting In re Tutu Wells Contamination 

Litig., 120 F.3d 368, 387 (3d Cir. 1997), overruled on other grounds by Cunningham v. 

Hamilton Cnty., Ohio, 527 U.S. 198 (1999)). However, to the extent the district court‟s 

decision depends upon its interpretation of Federal Rule of Evidence 408, our review is 

plenary. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749 (3d Cir. 1994).

Federal Rule of Evidence 408 provides, in relevant part:

(a) Prohibited uses. Evidence of the following is not admissible on behalf 

of any party, when offered to prove liability for, invalidity of, or amount of 

a claim that was disputed as to validity or amount, or to impeach through a 

prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish – or accepting or offering 

or promising to accept – a valuable consideration in compromising or 

attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the 

claim... .
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Fed. R. Evid. 408. Rule 408 applies where there is a “dispute” between parties, or “at 

least an apparent difference of view ... concerning the validity or amount of a claim.” 

Affiliated Mfrs., Inc. v. Aluminum Co. of Am., 56 F.3d 521, 525 (3d Cir. 1995). A dispute 

need not “crystallize to the point of threatened litigation”; a mere difference of opinion 

will suffice to warrant the exclusion. Id. at 527. In determining whether a dispute exists,

the facts of each case are critical to a district court‟s exercise of discretion. Id. at 528. 

Ultimately, when in doubt, the district court should err on the side of excluding 

compromise negotiations. Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1364 

(10th Cir. 1987).

The District Court here did not abuse its discretion by excluding statements made 

by the parties during their compromise negotiations between January and June 2005. The 

record reveals that the threat of litigation loomed over the parties as early as December 

10, 2004. On that date, Purolite put ECEM on notice by email that if Purolite exhausted 

its supply of styrene as a result of ECEM‟s untimely shipment, “a considerable 

compensation claim [would] be lodged with whoever [was] responsible for the delay.” 

(SA at 82-83.) At a minimum, Purolite‟s email demonstrates that ECEM was aware that 

Purolite considered filing a lawsuit to recoup losses it sustained as a result of the late 

shipments, and that Purolite was serious enough to make its intentions known. In 

addition, ECEM confirmed the existence of a dispute between the parties when it 

terminated its deliveries to Purolite, thus showing the failure of negotiations. As the 

District Court noted, Matthew Rigby, ECEM‟s Purchasing Agent, sent the following 

email to Brian Wareham on January 7, 2005:
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I confirm that I have put a block on any further styrene deliveries to your 

plant until we are up to date with payments. We really mustn‟t let the 

payment issue spoil this deal. We are set up to supply your styrene 

requirements for this year as per our agreement but you have to have to

[sic] keep your side of the bargain and pay on time.

(J.A. at 178 (emphasis added).) Finally, the record demonstrates that the General 

Manager of Purolite‟s Victoria Plant directed his employees to withhold payment to 

ECEM for outstanding invoices in the amount necessary to offset the losses Purolite 

sustained as a result of ECEM‟s late shipments. Taken as a whole, the evidence

demonstrates that a dispute existed between the parties concerning ECEM‟s cessation of 

deliveries and how Purolite would recover the losses it sustained as a result of ECEM‟s 

tardy shipments in November 2004. Thus, the District Court did not abuse its discretion 

by granting Purolite‟s motion in limine.

B. Reduction of Attorneys’ Fees and Interest7

ECEM contends that the District Court also abused its discretion by reducing its 

award by $376,042.00. ECEM does not dispute that the total amount to which it was

entitled for the damages it sustained as a result of Purolite‟s withholding of payments was

$405,183.00, but it asserts that “[t]he award of $781,725 to ECEM was within the 

exclusive purview of the fact-finder and should not be disturbed absent clear error.” 

(Appellant‟s Opening Brief at 33 (citing Loughman v. Consol-Pennsylvania Coal Co., 6 

F.3d 88, 102 (3d Cir. 1993).) Purolite responds that, because the jury found that the 

GTCS did not form a part of the agreement between the parties, and because no other 

 

7 Decisions regarding remittitur are reviewed for abuse of discretion. Gumbs v. 

Pueblo Int’l, Inc., 823 F.2d 768, 771 (3d Cir. 1987).
10

evidence introduced at trial supports the portion of ECEM‟s award that exceeds 

$405,183.00, the District Court appropriately deducted $376,042.00 from ECEM‟s total 

recovery. 

As did the District Court, we conclude that, because the evidence adduced at trial 

does not provide a basis for the portion of ECEM‟s award that exceeded the $405,183.00

acknowledged to be due, the District Court correctly amended the judgment by reducing 

ECEM‟s total recovery by the $376,042.00 over that past due amount. ECEM complains 

that the overage may represent interest calculated according to the GTCS. However, the 

jury expressly found that the GTCS was not a part of the contract between ECEM and 

Purolite, and that conclusion was hardly surprising, since the evidence established that 

Purolite never saw the GTCS until this suit was filed. None of the evidence introduced at

trial, aside from the GTCS, supports an award of attorneys‟ fees or interest at a statutory 

rate of 8% or a penalty rate of 4%. Therefore, because the jury awarded ECEM 

$376,042.00 in excess of its recoverable compensatory damages, and because ECEM 

failed to introduce evidence at trial supporting that award, the District Court did not err in 

amending the judgment by reducing ECEM‟s total award by $376,042.00. Accordingly, 

we affirm the District Court‟s remittitur order, reducing the judgment for ECEM by 

$376,042.00. 

C. Purolite’s Recovery of Prejudgment Interest

ECEM argues that the District Court abused its discretion by awarding Purolite 

prejudgment interest because (1) Article 78 of the United Nations Convention on 

Contracts for the International Sale of Goods (“CISG”) does not provide Purolite a right 
11

to recover prejudgment interest on its claim for loss profits; (2) Purolite is not entitled to 

prejudgment interest under Pennsylvania law because it‟s breach of contract claim did not 

seek a definite sum of compensation; and (3) Pennsylvania law does not provide for an 

award of prejudgment interest upon a claim for damages not derived from a contract of 

sale. Purolite answers that it is entitled to prejudgment interest because, under 

Pennsylvania law, a prevailing party is entitled to an award of prejudgment interest as a 

matter of right, and the CISG does not expressly preclude Purolite from receiving an 

award of prejudgment interest. 

We review for abuse of discretion a district court‟s decision to require a losing 

party to pay prejudgment interest, and a district court‟s findings regarding the appropriate 

amount of prejudgment interest. Thabault v. Chait, 541 F.3d 512, 533 (3d Cir. 2008)

(reviewing for abuse of discretion district court‟s decision to award prejudgment interest 

and district court‟s calculation of interest); Gelof v. Papineau, 829 F.2d 452, 456-57 (3d 

Cir. 1987) (reviewing for abuse of discretion district court‟s decision regarding the rate of 

prejudgment interest). “The district court may exercise this discretion upon 

„considerations of fairness‟ and prejudgment interest may be denied „when its exaction 

would be inequitable.‟” Thabault, 541 F.3d at 533 (quoting Bd. of Comm’rs of Jackson 

Cnty. v. United States, 308 U.S. 343, 352 (1939)).

The parties seem to disagree about whether the appropriate law to apply in 

determining the award of prejudgment interest is the CISG or Pennsylvania law. 

However, regardless of whether we apply the CISG or Pennsylvania law, the result is the 

same. Under Pennsylvania law, the award of prejudgment interest in a contract action is 
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not discretionary; it is a legal right to which a prevailing party is entitled. Fernandez v. 

Levin, 548 A.2d 1191, 1193 (Pa. 1988). Pennsylvania has adopted the Second 

Restatement of Contracts § 354 (1981), which provides:

(1) If the breach consists of a failure to pay a definite sum in money or to 

render a performance with fixed or ascertainable monetary value, interest is 

recoverable from the time for performance on the amount due less all 

deductions to which the party in breach is entitled.

(2) In any other case, such interest may be allowed as justice requires on 

the amount that would have been just compensation had it been paid when 

performance was due.

Restatement (Second) of Contracts § 354 (1981) (emphasis added); see Fernandez, 548 

A.2d at 1193. Where “damages are known or ... ascertainable through mathematical 

calculations,” prejudgment interest is limited to the statutory rate of 6% per annum. 

Spang & Co. v. USX Corp., 599 A.2d 978, 984 (Pa. Super. Ct. 1991); see 41 PA. CONS.

STAT. § 202. 

On the other hand, if, as ECEM argues, the CISG (an international treaty) governs 

the dispute, then we may treat the dispute as a federal question. 28 U.S.C. § 1331. And, 

assuming that this case presents a federal question, under our well-established precedent, 

the District Court had broad discretion in determining whether to award prejudgment 

interest. See Ambromovage v. United Mine Workers of Am., 726 F.2d 972, 981-82 (3d 

Cir. 1984) (“In the absence of an explicit congressional directive, the award of 

prejudgment interest under federal law is committed to the trial court‟s discretion, and 

„given in response to considerations of fairness[,] ... [and] denied when its exaction 

would be inequitable.‟”) (quoting Bd. of Commr’s of Jackson Cnty., 308 U.S. at 352).
13

Here, the jury determined that ECEM breached its contract by failing to deliver 

shipments of styrene in a timely manner, and it awarded Purolite $245,213.00 in 

compensatory damages. Purolite is thus a prevailing party in this litigation. The District 

Court was therefore within its discretion in awarding Purolite prejudgment interest. 

Where, as here, both the plaintiff and the defendant recover damages due to the 

breakdown of a contractual agreement, we find no inequity in awarding both parties 

prejudgment interest at the same statutory rate. Accordingly, we will affirm the District 

Court‟s decision to award Purolite prejudgment interest at a rate of 6% per annum.

D. Motion for a New Trial8

ECEM challenges the District Court‟s order “denying ECEM‟s post-trial motion 

seeking a new trial on the issue of [Purolite‟s] counterclaim due to the [District] Court‟s 

failure to admit evidence of business communications between the parties.” (J.A. at 1.) 

However, because of our holding that the District Court did not err in granting Purolite‟s 

motion in limine to exclude evidence of compromise negotiations, we also conclude that 

the District Court did not err in denying ECEM‟s motion for a new trial. 

III. Conclusion

For the foregoing reasons, we affirm the District Court.

 

8

“The standard of review on a motion for a new trial is abuse of discretion, except 

where a district court bases its denial of the motion on an application of law, in which 

case the appellate court‟s review is plenary.” McKenna v. City of Phila., 582 F.3d 447, 

460 (3d Cir. 2009).