IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

AMERICAN SEATING COMPANY,

 Plaintiff,

 v.

ARCHER PLASTICS INC.,

 Defendant. 

Civil No. 11-53 (JS)

MEMORANDUM OPINION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW

This Memorandum Opinion with findings of fact and 

conclusions of law will serve as the Court’s decision with 

regard to the non-jury trial of this matter that was held on 

December 9, 2013, January 17, 2014, and February 21, 2014. 

Pursuant to 28 U.S.C. '636(c), the parties consented to the 

jurisdiction of this Court to hear this matter. [Doc. No. 73].

Jurisdiction is based on diversity of citizenship. For the 

reasons to be discussed, the Court will enter Judgment in 

plaintiff’s favor in the amount of $151,109.90, plus prejudgment 

interest running from January 5, 2011.

The basic facts and background of the case are 

straightforward. Defendant entered into separate contracts with 

plaintiff to purchase and remove seats from the Camden Yards 

(“CY”) Baseball Stadium in Baltimore, Maryland, and Foley Field 

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at the University of Georgia. After plaintiff paid for and

removed a substantial number of seats from CY, it informed 

plaintiff it could not afford to pay for and remove the 

remaining seats at CY, and none of the seats at Foley Field. 

Plaintiff then sold the remaining seats and thereafter sued 

defendant for damages. As to CY, up until the very end of the 

trial plaintiff pursued a common law breach of contract claim. 

At the tail end of the trial plaintiff changed course and is now 

pursuing damages under the Uniform Commercial Code (“UCC”).

At trial plaintiff presented the testimony of Mr. Bruce 

Weener, an employee of American Seating Company for 27 years who 

is currently its Vice President of Customer Satisfaction. At the 

time of the contracts at issue Weener was employed as 

plaintiff’s Vice President of Project Management. Plaintiff also 

called as an adverse or hostile witness Mr. Steven Archer

(“Archer”), President of defendant Archer Plastics, Inc. 

Defendant presented the testimony of Archer.

Viewing the record in totality, at bottom what happened 

here is that defendant entered into two bad contracts. 

Unfortunately for defendant, it was not as successful as it 

hoped for in selling CY seats. As a result, defendant did not 

have money to pay for the Phase 2 seats which left it no 

alternative but to repudiate the remaining work it contracted to 

perform at CY and Foley Field. This situation was not totally 

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within defendant’s control, however. It is no secret that the 

general economic climate and memorabilia market collapsed at or 

about the time of defendant’s contracts. These developments, 

however, are no defense to plaintiff’s right to recover damages 

on account of defendant’s contract breaches.

FINDINGS OF FACT

On January 5, 2011, plaintiff filed this breach of contract 

lawsuit. Plaintiff American Seating Company designs and builds 

seating and office furniture for, among others, educational 

institutions, government entities, corporations and individuals. 

See Joint Final Pretrial Order, Stipulated Fact 1, Doc. No. 63.

Plaintiff sells seats in the office, auditorium and classroom 

markets, as well as transportation seating and seating in the 

sports entertainment market. Trial Transcript (“Tr.”) 21:20-

25(1).1 Although on occasion plaintiff has sold used seats, it 

has only done this sporadically. The Court finds that the focus 

of plaintiff’s business and the majority of its sales involves

new seats. Plaintiff is plainly not in the business of selling 

the quantity of used seats that remained at CY after plaintiff 

breached its contract. Tr. 25:21 to 26:9(1); 32:7-11(1). 

Defendant’s main business is setting up memorabilia sales for 

sports teams, which includes sales of used seating. Defendant 

1 Unfortunately, the pages of the trial transcript are not consecutively 

numbered. The number in parenthesis refers to the date of the referenced 

testimony: (1) December, 9, 2013, (2) January 17, 2014, and (3) February 21, 

2014.

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also sells used stadium seating and related memorabilia. Tr. 

156:20 to 157:6(1).

In or about the early summer of 2009 (Tr. 45:6-10(1)), the 

Maryland Stadium Authority contracted with Gilbane to reseat CY 

and to do concrete work at the stadium. Tr. 26:15 to 27:13(1). 

Plaintiff was a subcontractor to Gilbane and its role was to 

remove all the seats and to install new seats. Tr. 27:21-22(1). 

When plaintiff made its proposal to Gilbane, it took into 

account the price defendant agreed to pay plaintiff for the CY 

seats. Tr. 45:3-22(1). The actual disassembly of the CY seats

was done by Harriott Contracting (Tr. 28:19-23(1)), a 

subcontractor to plaintiff. Tr. 29:1(1). Harriott charged 

plaintiff $6.50 per chair for removal. Tr. 30:24 to 31:1(1). The 

reseating work took place from the fall of 2009 through the 

spring of 2011. Tr. 28:1-4(1). In January 2010, plaintiff 

contracted to install new benches and seats at Foley Field. Exh. 

N.

In order to install new seats at CY the old seats obviously 

had to be removed. As noted, plaintiff contracted with Harriott

to disassemble and box the seats that had to be removed at CY. 

Defendant came into the picture when it contracted in November 

2009 to pay plaintiff a set price per seat to purchase and cart 

away the CY seats. Defendant intended to resell the seats at a 

profit. Since plaintiff was responsible for removing the CY 

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seats, plaintiff viewed defendant’s contract as profit. In other 

words, not only was plaintiff going to be paid to remove CY 

seats, but it was going to earn income by selling the seats it 

contracted to remove. 

On July 18, 2012 [Doc. No. 35], the Honorable Robert B. 

Kugler entered summary judgment in plaintiff’s favor. Judge 

Kugler ruled that after the exchange of two proposals in October 

2009 (see Exh. C, G), plaintiff and defendant contracted for 

defendant to remove all the seats at CY. The contract is 

memorialized in a November 5, 2009 purchase order (Exh. K) which 

provided that defendant would pay plaintiff $8.50 per seat and 

$18.18 per logo end removed. Opinion at 5-6. The purchase order

was emailed by defendant to plaintiff on November 19, 2010. 

Exh. J. The purchase order called for the removal of an 

estimated 45,000 stadium seats and 5,500 logo ends for a total 

contract price of $482,500. Judge Kugler’s Opinion noted that 

the parties’ contract language strongly suggested that the final 

contract price was to be adjusted based on the final seat count 

at CY. Id. at 8-9.2

As to Foley Field, on January 19, 2010 defendant sent a 

letter to plaintiff agreeing to remove the seats at no cost to 

plaintiff. Exh. N. In exchange defendant could keep the seats 

2 Although a total of 48,876 seats and 5,600 logo ends were removed from CY

(Tr. 111:24 to 114:9(1)), plaintiff has elected only to pursue damages based 

on the 45,000 seats and 5,500 logo ends mentioned in the November 5, 2009 

purchase order.

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for resale. Judge Kugler’s Opinion held that plaintiff’s letter 

was a binding contract. Opinion at 13. As it turned out there 

were 1,800 seats and 1,200 bleachers to be removed form Foley 

Field. Tr. 82:23 to 83:11(1). Unlike CY, defendant contracted 

to actually disassemble the seats at Foley Field. Tr. 84:9-

1l(1). Under both contracts at issue, defendant was entitled to 

keep all seating and logo ends that it removed for resale to 

third parties. Stipulated Fact 7.

As a matter of clarification, defendant did not agree to 

actually disassemble the CY seats. As noted, plaintiff 

subcontracted with Harriott to do this work. What defendant 

agreed to do was pay for and cart away from CY the old seats 

that had been disassembled and boxed up by Harriott. Per 

plaintiff, “under the agreement, [Archer was] purchasing the 

seats at the price specified, and they were required to remove 

the seats. Once they were disassembled, put into containers 

[Archer was] to remove [the seats] from the site.” Tr. 30:1-

4(1). 

Although plaintiff and defendant only entered into one 

contract for the CY seats, the work had to be performed in two 

phases so that the work would not interfere with the Orioles 

baseball season. Tr. 28:5-18(1). Phase 1, to be done in 

2009/2010, involved all the lower bowl seats with the exception 

of centerfield. Phase 2, to be done in 2010/2011, involved

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centerfield and all of the upper bowl. Tr. 28:16-18(1); 38:17-

20(1). Defendant performed Phase I of the CY contract and made a 

payment of $187,266.66 to plaintiff. Tr. 38:21 to 39:1(1); see

also Exh. NNN. Plaintiff paid for 17,561 seats and 2,090 logo 

ends. Tr. 109:413(1); Exh. DDD. After the payment a balance of 

$295,233.34 remained on the contract. Tr. 40:2-4(1). 

As early as April 19, 2010, defendant gave plaintiff every 

indication that it could no longer perform the CY contract. Exh.

S. The reason defendant gave for why it could not complete the 

contract was that the market crashed and there was not a market 

for the used seats. Tr. 40:12-16(1). Defendant reiterated on 

several occasions it would not perform the remainder of the CY 

contract and the Foley Field contract. See June 2, 2010 email 

from defendant to plaintiff, Exh. S; June 4, 2010 email from 

Fritz Owen to B. Weener, Exh. V; June 6, 2010 email from 

defendant to plaintiff, Exh. W; July 14, 2010 email from 

defendant to plaintiff, Exh. AA (“I don’t have the money to buy 

the seats....”); July 17, 2010 email from defendant to plaintiff, 

Exh. AA; August 19, 2010 email from defendant to plaintiff, Exh. 

EE (“[T]he money is not here to do anything anymore”); August 

25, 2010 email from defendant to plaintiff, Exh. FF (“It ain’t 

gonna’ happen, we aren’t able to take any seats or pay for any 

seats.”). In the same email defendant informed plaintiff it 

would not remove the seats from Foley Field “for free.” The 

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short answer to why defendant breached its contracts is because 

it “couldn’t afford to buy them [seats].” Tr. 7:24(3).

On August 5, 2010, plaintiff advised defendant that the 

remaining removal at CY should start on October 18, 2010, Exh. 

GG. Plaintiff advised defendant on August 30, 2010, that it

considered defendant to have repudiated the contract and that if 

defendant did not assure plaintiff that it would perform the 

contract, plaintiff would “proceed to exercise all of [its] 

rights and remedies” against defendant due to its breach. Exh.

KK. At the time plaintiff was “panicking” because it did not

have a way to handle the Phase 2 seats. Tr. 47:9-14(1). After 

the letter was sent defendant never gave plaintiff any 

indication that it changed its positon that it would not and 

could not complete the work it contracted to do.

Since Judge Kugler’s ruling on plaintiff’s motion for 

summary judgment decided that defendant breached its two 

contracts with plaintiff, it is left to this Court to decide 

whether plaintiff is entitled to damages and if so how much.

Plaintiff seeks damages pursuant to 2-709 of the UCC, i.e., 

“Action for the Price.” As an alternative, plaintiff seeks 

damages under 2-708. Plaintiff claims it is entitled to a damage 

award of $173,665.90. The Court will summarize plaintiff’s 

calculation which will be discussed in more detail infra. 

Plaintiff claims it is entitled to $482,500 under the CY 

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agreement, plus the $6,200 that it paid to have the stadium 

seating removed from Foley Field. These two amounts total 

$488,700. From this total plaintiff deducted the following 

amounts: defendant’s payment of $187,266.66, a $60,200.00 credit 

from plaintiff’s sale of seats to the Madison Mallards, a 

$47,986.44 credit on account of the seats plaintiff sold to a 

facility in Sarasota, Florida,3 and $19,581.00 plaintiff received

from the sale of the remaining CY seats for salvage. Thus, in 

summary, plaintiff claims it is entitled to $173,665.90.

Defendant argues it did not “accept” the Phase 2 seats, 

that plaintiff did not act in a commercially reasonable manner 

to reduce its losses, and/or plaintiff failed to appropriately 

mitigate its damages, and that plaintiff did not “hold” the 

seats that defendant did not pay for. Defendant also argues 

that 6,000 of the seats at CY were not fit for their intended 

use because the cushions could not be removed properly and/or

the bolts had seized tight and could not be removed. Defendant 

also argues that 4,000 of the CY seats were redirected seats 

which could not be easily sold. Defendant argues it did not 

contract to pay for these 10,000 seats that it could not use or 

re-sell. Tr. 20:16-25(1). Another way of saying this is that 

defendant argues that it only agreed to pay for the seats that 

it could use or re-sell. 

3 Sarasota County bought the seats for the Ed Smith Stadium. Tr. 121:19-21(1).

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As to defendant’s misdirected and “cushioned” seat 

argument, defendant ignores the fact that when Judge Kugler 

ruled on plaintiff’s summary judgment motion he decided that 

these seats were not exempt from the parties’ contract. Judge 

Kugler ruled that without exception defendant agreed to remove 

all the seats at CY. Opinion at 9 (holding that there was no 

genuine issue defendant “agreed to remove all existing 

seats....”). Further, even if this Court ruled on the issue 

independently of Judge Kugler’s Opinion, it would rule the same 

way. The Court finds that defendant contracted to remove and pay 

for all the seats at CY even if the seats could not be re-sold. 

The Court rules this way for a number of reasons. First, the 

November 5, 2009 purchase order provided that defendant would 

remove all the seats at CY. Exh. K. No provision was made in the 

parties’ contract to exclude redirected seats or “cushioned” 

seats. The existence of these seats was no secret to defendant. 

Defendant visited CY in 2004 and one time in 2009 before his

contract with plaintiff. Tr. 173:5-13(1). Further, the Court 

finds that defendant had the opportunity to thoroughly inspect 

the CY seats before it entered the November 2009 contract. In 

addition, prior to the execution of the CY contract defendant 

knew it would be difficult to remove cushions from some seats. 

Exh. CCC. Also, the presence of redirected seats was open and 

obvious. Indeed, defendant testified he knew there were 

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thousands of redirected seats. Tr. 181:10-12(1); 29:15-17(3). 

Defendant’s November 4, 2009 email even estimated the number of 

padded and redirected seats in CY. Exh. H. Thus, defendant knew 

or should have known that some of the seats that it removed at 

CY were not useable or sellable. If, as defendant argues, the

parties intended to exclude unusable or unsellable seats from 

their contract, this would have been specifically mentioned. 

Further, although the parties’ purchase order provided that 

45,000 seats were to be removed, the quantities were subject to 

correction after a final tally of the removed seats was done. 

Exh. K. This further evidences that the parties knew how to 

exclude seats from their contract if they so intended. 

Another reason defendant’s argument as to the redirected 

and cushioned seats is rejected is because defendant 

acknowledged that it had to pay for seats that were not 

sellable. This is documented in Archer’s November 2009 e-mail 

to Chuck Bailey, wherein Archer acknowledged he had to pay to 

remove some seats that he could not use. Exh. CCC; see also

Defendant’s November 16, 2009 email to plaintiff, Exh. I.

Although Archer’s testimony at trial contradicts these emails, 

the Court finds that the contemporaneous emails Archer sent in 

November 2009 are more credible than his trial testimony on this 

topic.

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Although not clear, defendant is also apparently arguing 

that the parties’ contract was contingent on the Orioles helping 

to market its old seats as memorabilia. Tr. 86:21-24(2). The 

Court rejects this argument. If this was a condition or material 

term in the parties’ contract, it would have been specifically 

mentioned. There is no record in the parties’ contract or their 

email communications that conditioned defendant’s duty to 

perform on defendant receiving help from the Orioles to sell the 

used seats.

As to its commercial reasonableness or mitigation defense, 

defendant makes several arguments, including: (1) plaintiff did 

not act diligently to sell the Phase 2 CY seats after defendant

notified plaintiff that it would not buy or remove any more 

seats, (2) plaintiff should have used its own sales force to try 

and sell the remaining seats at CY that defendant did not 

remove, (3) that the seats and benches at Foley Field could have 

been sold, (4) plaintiff should not have “trashed” any seats 

because they eventually could have been sold, and (5) plaintiff 

failed to give it required notice before plaintiff sold for 

salvage the CY and Foley Field seats it could not sell.

CONCLUSIONS OF LAW

As noted, Judge Kugler has already decided that defendant 

breached its contracts. In addition, the Court has noted that if 

it had to look at the issue independently it would rule the same

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way as Judge Kugler. Thus, since it has been decided that 

defendant breached its contracts, the Court’s role is to decide 

the amount of plaintiff’s damages, if any. The parties agree 

that damages for the CY breach should be decided pursuant to the 

UCC. The parties also agree that the UCC does not apply to 

plaintiff’s damage claim for Foley Field.

1. Plaintiff’s Damage Claim

Turning to plaintiff’s damage claim, defendant attempts to 

make much of the fact that during the course of the case 

plaintiff submitted different damage estimates. Although the 

Court acknowledges this is the case, it is not determinative as 

to the amount of damages plaintiff may recover. The Court is 

only focusing on the damage claim plaintiff made at trial, not 

what plaintiff may have claimed earlier in the case. It is not 

insignificant that plaintiff and defendant do not materially 

disagree as to the relevant dollar figures. Instead, the 

parties’ dispute how plaintiff’s damages should be calculated 

and whether plaintiff satisfied the required elements in the 

UCC.

Plaintiff’s damage calculation is as follows. See generally

Exh. NNN. The contract price for CY totals $482,500. This is 

composed of $382,500 for the seats (45,000 x $8.50) plus 

$100,000 for the logo ends (5,500 x $18.18).4 This leaves a 

4 The actual total is $99,990.

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contract balance of $295,233.34. From the contract balance 

plaintiff gave defendant a credit for the amount defendant paid 

($187,266.66) and the net income from the Madison Mallards and 

Sarasota sales.

As to Madison Mallards (“MM”), plaintiff sold 3,500 seats 

at a price of $26.00 per seat. This totaled $91,000. From this 

amount plaintiff deducted its incidental expenses which included 

a $6.50 charge per seat for removal, a $1.00 per seat charge for 

handling, a 5% administrative charge, and sales tax. After the 

incidental expenses were deducted from the sales price, 

plaintiff gave defendant a credit of $60,200 on the MM sale. As 

to Sarasota, plaintiff sold 7,078 seats and 1,100 standards and 

received $42,468. Plaintiff earned a profit of $5,518.44. Thus, 

plaintiff credited defendant $47,986.44 on the Sarasota sale. 

See generally Exh. NNN.

After the MM ($6,200) and Sarasota ($47,986.44) credits are 

deducted from the contract price ($295,233.34), a balance of 

$187,046.90 is left. As to the remaining seats at CY, plaintiff 

sold them for salvage and received $19,581. This amount was 

credited to defendant. As to Foley Field, plaintiff had to pay a 

third party to remove the seats. This cost plaintiff $6,200.

In sum, plaintiff’s damage claim totals $173,665.90 and is 

calculated as follows:

$482,500.00 (CY contract price)

 - 187,266.66 (amount defendant paid)

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 - 60,200.00 (MM credit)

 - 47,986.44 (Sarasota credit)

 - 19,581.00 (CY scrap credit)

 167,465.90 (CY damages)

 + 6,200.00 (Foley Field removal cost)

$173,665.90

2. Acceptance Under the UCC

In order to decide what provision of the UCC applies to 

plaintiff’s damage claim the Court will first address whether 

defendant accepted all the seats at CY. Plaintiff says yes, 

defendant says no. Plaintiff argues that since defendant 

accepted all seats, it can recover damages pursuant to 2-709. 

For the reasons to be discussed the Court agrees.

The applicable provision of the UCC defining when there has 

been an acceptance of goods is set forth in 2-606. This 

provision reads:

(1) Acceptance of goods occurs when the buyer

(a) after a reasonable opportunity to inspect the 

goods signifies to the seller that the goods are 

conforming or that he will take or retain them in 

spite of their non-conformity; or

(b) fails to make an effective rejection 

(subsection (1) of 12A:2-602), but such acceptance 

does not occur until the buyer has had a reasonable 

opportunity to inspect them; or

(c) does any act inconsistent with the seller’s 

ownership; but if such act is wrongful as against the 

seller it is an acceptance only if ratified by him.

(2) Acceptance of a part of any commercial unit is 

acceptance of that entire unit.

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In order for there to be an “acceptance” there must be an 

unequivocal act with intent to possess the goods as an owner. 

Massari v. Accurate Bushing Co., 8 N.J. 299, 264 (1951); see

also Mobilificio San Giacomo S.p.A. v. Stoffi, C.A. No. 96-415-

SLR, 1998 WL 125536, at *6 (D. Del Jan 29, 1998)(“[T]o 

constitute acceptance there must be an acceptance by some 

unequivocal act with intent to take possession of the goods as 

owner. This question is one of fact. It depends upon the 

circumstances of the particular case.”). Plaintiff argues 

defendant accepted within the meaning of the UCC all of the 

seats at CY. Although defendant acknowledges it accepted the 

Phase 1 seats, it denies that it accepted the Phase 2 seats. 

Defendant relies on the fact that it let plaintiff know as early 

as April 2010, before the Phase 2 removal started, that he did 

not have the money to pay for the seats and he would not remove 

them. The Court rejects defendant’s argument and finds that 

defendant accepted all of the seats at CY.

Before a buyer can be held to have accepted goods, the 

buyer must be given a reasonable opportunity to inspect the 

goods. Jakowski v. Carole Chevrolet, Inc., 180 N.J. Super. 122, 

126 (L. Div. 1981)(citing N.J.S.A. 12A:2-606). There is no 

question that before the CY project started defendant had a 

reasonable opportunity to inspect all of the seats at CY. Even 

if the Court credits Archer’s claim that he did not visit CY to 

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inspect all the seats he contracted to buy and remove, nothing 

prevented him from visiting the site and scrupulously inspecting 

the seats. Further, in November 2009, defendant sent an email to 

plaintiff acknowledging that he visited CY and “checked [the 

seats] closely.” Exh. CCC. Archer’s trial testimony is 

inconsistent with the contemporaneous documentary evidence. The 

Court credits the statement in defendant’s November 2009 email.

Under the UCC possession does not mean “acceptance.” 

Zabriskie Chevrolet, Inc. v. Smith, 99 N.J. Super. 44l, 455 (L. 

Div. 1968). Thus, defendant did not have to physically possess 

the Phase 2 seats to be deemed to “accept” the seats. In 

addition, defendant’s payment to the plaintiff for all the CY 

seats was not a prerequisite to acceptance. If defendant wanted 

to reserve the right not to perform Phase 2 this would have and 

should have been stated in the parties’ contract. The Court 

finds that since defendant visited CY and inspected the seats, 

and thereafter contracted to remove all of the seats at CY, and 

in fact removed and paid for approximately 17,000 seats, 

defendant accepted all of the CY seats. Defendant’s actions

signified his unequivocal acceptance of all of the seats at CY.

Defendant makes much of the fact that the work at CY was to 

be done in two phases and that as early as April 2010 he told 

plaintiff he would not perform Phase 2. However, the fact that 

defendant repudiated Phase 2 and revoked his prior acceptance 

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does not take away from the fact that earlier on he accepted all 

the seats at CY. Defendant confuses the concepts of acceptance 

and repudiation. It is true that defendant repudiated Phase 2. 

However, this does not take away from the fact that prior 

thereto defendant accepted all of the seats at CY. 

Section 2-606 of the UCC provides, “[a]cceptance of a part 

of any commercial unit is acceptance of that entire unit.” See

Rocheux Intern. of N.J., Inc. v. U.S. Merchants Financial Group, 

Inc., 741 F. Supp. 2d 651, 669 (D.N.J. 2010). The Court finds 

that there was a single commercial unit of goods at CY, i.e., 

all the seats in the stadium. See N.J.S.A. '12A:2-105(6).

Defendant’s acceptance of a substantial portion of the unit 

served to accept the entire unit. See 2-606(2). Defendant 

acknowledges that it accepted and paid for 17,561 Phase 1 seats 

and 2,090 logo ends. Tr. 109:4-13(1). Since defendant admittedly 

accepted a substantial portion of the seats at CY, the Court 

finds that this evidences his acceptance of all seats. The fact 

that the seat removal was to be done in two phases is immaterial 

to the fact that after defendant accepted a substantial portion 

of the CY seats it accepted all the seats. It is illogical for 

defendant to argue that even though it accepted and paid for 

approximately 17,000 seats it did not accept the remaining seats 

simply because he could not afford to pay for them.

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3. Section 2-709 Contract Price Damages

The remedies plaintiff may seek because of defendant’s 

revocation of its acceptance and repudiation of Phase 2 of the 

CY contract are listed in 2-703. Plaintiff’s remedies include, 

inter alia, the right to resell and recover damages under 2-706, 

to recover damages for non-acceptance under 2-708, or to recover 

for the contact price under 2-709. Generally, the UCC’s remedies 

are to be “liberally administered to the end that the aggrieved 

party may be put in as good as a position as if the other party 

had fully performed.” Sons of Thunder, Inc. v. Borden, Inc., 148 

N.J. 396, 426 (1997)(citing N.J.S.A. 12A:1-305).

Defendant is proceeding under 2-709 and seeks to recover 

the contract price. This provision of the UCC reads:

(1) When the buyer fails to pay the price as it 

becomes due the seller may recover, together with any 

incidental damages under the next section, the price

(a) of goods accepted or of conforming goods lost 

or damaged within a commercially reasonable time 

after risk of their loss has passed to the buyer; 

and

(b) of goods identified to the contract if the 

seller is unable after reasonable effort to 

resell them at a reasonable price or the 

circumstances reasonably indicate that such 

effort will be unavailing.

(2) Where the seller sues for the price he must hold 

for the buyer any goods which have been identified to 

the contract and are still in his control except that 

if resale becomes possible he may resell them at any 

time prior to the collection of the judgment. The net 

proceeds of any such resale must be credited to the 

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buyer and payment of the judgment entitles him to any 

goods not resold.

(3) After the buyer has wrongfully rejected or revoked 

acceptance of the goods or has failed to make a 

payment due or has repudiated (12A:2-610), a seller 

who is held not entitled to the price under this 

section shall nevertheless be awarded damages for nonacceptance under the preceding section.

Pursuant to 2-709, plaintiff may recover incidental damages as 

defined in 2-710. Mack Boring & Parts Co. v. Novis Marin, LTD, 

C.A. No. 06-2692 (HAA), 2008 WL 4371769, at *8 (D.N.J. Sept. 18, 

2008); Atlantic Aviation Corp. v. Provident Life & Acc. Ins. 

Co., C.A. No. 86-533-CMW, 1989 WL 101469, at *6 (D. Del. Aug. 2, 

1989).

As discussed, the Court has found that defendant accepted 

all of the seats at CY. In addition, the Court finds that 

plaintiff sold in a commercially reasonable manner all the seats 

at CY that remained after defendant failed to perform. This 

includes the seats plaintiff sold for salvage. In addition, even 

if the seats sold for salvage were not done in a commercially 

reasonable manner, plaintiff was unable, after reasonable 

effort, to resell the seats at a reasonable price. The Court 

also finds that the circumstances reasonably indicated to 

plaintiff that any further efforts to resell the seats were

unavailing. In short, the Court finds that at all relevant times

plaintiff acted in a commercially reasonable manner. This 

includes the fact that plaintiff acted reasonably to mitigate 

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its damages. Defendant’s contrary arguments rely on unreasonably 

optimistic predictions and unrealistic expectations. Defendant 

engages in non-productive and non-persuasive “Monday morning 

quarterbacking.” A good example of this is defendant’s 

contention that if defendant paid to transport and store the 

Phase 2 CY seats it could have reaped hundreds of thousands of 

dollars in sales. To the contrary, as discussed herein, there 

was no market for the seats. Given the market conditions, as 

evidenced by defendant’s failure to even sell the lesser

quantity of Phase 1 seats, and the fact that some of plaintiff’s 

Phase 1 seats are still sitting in a warehouse (Tr. 27:9 to 

29:11(2)), it is likely that if defendant held the Phase 2 seats 

for plaintiff that tens of thousands of unsellable seats would 

now be collecting dust in a warehouse.5 Indeed, plaintiff has 

made a persuasive demonstration that to date defendant has at 

most sold only 2,000 seats. Tr. 28:1-3(2).

Defendant argues plaintiff did not exercise reasonable or 

diligent efforts to sell the seats that defendant repudiated. 

Stated another way, defendant argues plaintiff did not act in a 

commercially reasonable manner to mitigate its damages. The 

Court disagrees. Contrary to defendant’s argument, the Court 

finds that plaintiff engaged in commercially reasonable efforts 

to sell the seats. See Tr. 48:1-13(1), 52:20 to 53:16(1). These 

5 Even giving defendant the benefit of the doubt, at least 20,737 seats would 

still be remaining. Tr. 133:10-12(1).

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efforts were above and beyond the sales to MM and Sarasota.

Furthermore, defendant ignores the fact that plaintiff was not 

in the business of selling used seats but instead sold new 

seats. Thus, plaintiff could not be expected to have the same 

wherewithal that defendant had to sell used seats. Moreover, 

defendant is hard pressed to argue plaintiff should have sold 

the Phase 2 seats when defendant himself found it impossible to 

sell the seats. In addition, defendant ignores the time 

pressures plaintiff faced to remove the Phase 2 seats so that 

the work at CY could be completed in time for the next baseball 

season. Tr. 50:25-51:8(1). Similarly, something had to be done 

quickly at Foley Field because of the contractor’s immediate 

need to proceed with its work. Tr. 121:2-6(1).

Defendant argues that plaintiff should have “worked with 

him” to store the seats until they could be sold. If this 

occurred, defendant argues, plaintiff did not have to sell the 

remaining seats for salvage. The Court finds that plaintiff was 

justified in rejecting defendant’s proposal. Defendant’s 

proposal was contingent on plaintiff paying for the 

transportation and/or storage of the seats. Since defendant did 

not have the money to pay for storage. Tr. 32:4-7(2), Exh. W; 

see also Tr. 49:8-14(2). Having just breached its contract to 

pay for the removal of the Phase 2 CY seats, and knowing that 

defendant’s business was in deep financial trouble (Tr. 35:19 to 

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36:10(2)), it was not unreasonable for plaintiff to reject 

defendant’s proposal to continue to work together, especially 

since defendant wanted plaintiff to pay the cost of storing the 

CY seats. Tr. 121:12 to 122:14(2). It was commercially 

reasonable for plaintiff not to want to do business with a 

company that told it “the money is not here to do anything 

anymore.” Exh. EE. This is especially true since defendant 

could not give any assurances when the seats would eventually be 

sold and how long storage or other associated “carrying costs” 

and incidental expenses would continue. And, last but not least, 

plaintiff simply was not in the business of selling used seats.

As noted in Covino v. Peck, 233 N.J. Super. 612, 619 (App. Div. 

1989)(citation and quotation omitted), “[a]n injured party 

should not be required to lay out money, as defendant’s approach 

would require, upon a questionable assumption that one day its 

work will be recaptured.”

As discussed, defendant argues it was commercially 

unreasonable for plaintiff to sell the leftover CY seats for 

salvage after defendant breached its contract. The Court 

disagrees. The Court first notes there is authority to the 

effect that 2-709(2) does not require that a resale be 

“commercially reasonable.” Hidden Brook Air, Inc. v. Thabet 

Aviation Intern, Inc., 241 F. Supp. 2d 246, 275 (S.D.N.Y. 2002). 

Nevertheless, even if plaintiff is held to a commercial 

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reasonableness standard, the Court finds that this standard was 

met. It must be kept in mind that plaintiff was in a time bind 

because it had to remove the seats from CY in order to complete 

the work at the stadium. Tr. 121:2-6(1). Further, the seats 

could not be sold because there was no market for them. Tr. 

78:7-13(1); 146:18 to 148:4(1). This is aptly demonstrated by 

the fact that defendant did not present plaintiff with any 

opportunities other than MM and Sarasota. Tr. 148:1-6(1).

Storing the enormous quantity of leftover seats was not a viable 

option because of space and cost considerations. Tr. 80:15 to 

81:8(1). Although the exact number of seats leftover has not 

been computed, the number likely exceeds 20,000. Tr. 133:10-

11(1). The only viable option for plaintiff was to sell the 

remaining seats for scrap or salvage and credit defendant the 

price. Tr. 77:21 to 78:6(1). Plaintiff worked diligently to get 

the best price that it could. Tr. 79:6 to 80:7(1). The 

reasonableness of plaintiff’s actions is further demonstrated by 

the fact that it held the seats as long as it could. Tr. 50:14 

to 51:22(1); see also Exh. HHH. Facing the choice of having to 

pay thousands of dollars to transport and store thousands of 

used seats for an indefinite time into the future, or saving 

these costs and earning some money by selling the seats for 

salvage, plaintiff made the commercially reasonable choice to 

sell the seats for salvage. Time has borne this out as evidenced 

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by the fact that defendant still is storing Phase 1 CY seats and 

associated hardware.

Section 2-709 rather than 2-708 is also the proper measure 

of damages because no market existed for the CY seats and resale 

was not possible or practical. See Rheinberg Kellerei GmbH v. 

Brooksfield Nat. Bank of Commerce Bank, 901 F.2d 481, 484-85 (5th

Cir. 1990)(Section 2-708 is inapposite where there is no market 

rate for the goods at issue. In such an instance damages should 

be computed under 2-709); Uniform Commercial Code (West 6th ed.), 

Practitioner Treatise Series Vol.1, '8:13 at 686 (“If no market 

exists for the product with which to measure damages, an action 

for the price under 2-709 (or in some case for lost profits 

under 2-708(2) rather than an action under 2-708(1)) is 

appropriate”); Indeck Energy Services, Inc. v. NRG Energy, Inc., 

No. 03C2265, 2004 WL 2095554, at *12 (N.D. Ill. Sept. 16, 

2004)(where efforts to sell goods are unavailing “courts 

routinely apply section 709(1)(b) and measure damages by the 

contract price”).

As is evident from the foregoing discussion, the Court 

finds that plaintiff satisfied the criteria in 2-709(1). 

Defendant argues plaintiff did not satisfy the requirements in

2-709(2) because it did not “hold” the Phase 2 seats before it 

sold them for salvage. Recognizing that the UCC is liberally 

administrated and is designed to put an aggrieved party like 

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plaintiff in as good a positon as if the other party had fully 

performed (1-305), the Court rejects this argument for a number 

of reasons. First, the seats that defendant argues were scrapped 

were actually sold for salvage. The Court has already ruled this 

was done in a commercially reasonable manner. Thus, there were 

no seats left to hold for defendant. Second, even if the 

“salvage sale” does not qualify as a sale of the Phase 2 seats 

within the meaning of the UCC, it would have been fruitless for 

defendant to hold onto the seats. There was no market for the 

seats and they could not be sold. Defendant acknowledged the 

market for the seats “evaporated.” Tr. 31:17 to 32:11(3); Exh. 

W. Therefore, if the seats were held it would merely result in a 

useless act that unnecessarily increased plaintiff’s carrying 

costs and incidental expenses. In turn, this would have 

increased the damages defendant would have to pay in this 

lawsuit. 

Defendant’s argument that plaintiff was required to give it 

notice before the “salvage” sale at CY and Foley Field is also 

rejected. The purpose of giving reasonable notification of an 

intent to resell is to allow a party to protect his interests by 

taking part in the sale or other dispensation if it so desires. 

McLaughlin v. Khiel, No. CV-00-56, 2001 WL 1719225, at *2 (Sup. 

Ct. of Maine 2001). The foregoing discussion summarizes in 

detail the incessant efforts plaintiff made to convince 

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defendant to perform under his contracts. These efforts made 

plaintiff’s intent to resell manifestly evident. The foregoing

discussion also evidences defendant’s steadfast insistence that 

it would not and could not perform under the contract. On August 

30, 2010 (Exh. KK), defendant advised plaintiff that it had a 

last chance to perform its contract. In defendant’s words he 

threw plaintiff’s entreaties in the trash. Tr. 45:6-18(2). Any 

further notice to defendant after August 30, 2010, of what 

plaintiff was going to do with the leftover seats was a waste of 

time. This is aptly demonstrated by the fact that defendant told 

plaintiff on June 6, 2010 that even if the Phase 2 seats were 

free he would not take them. Tr. 139:23 to 140:1(1). Plaintiff 

gave defendant a “last notice.” Any further notice to defendant

was manifestly unnecessary. It is too late for plaintiff to now 

complain that he should have been given another chance to buy 

the Phase 2 CY seats before they were resold.

4. CY Damage Computation Under 2-709

Having decided that plaintiff satisfied the criteria in 2-

709 to recover damages, the Court will calculate the amount. 

Except for several items the Court agrees with plaintiff’s 

damage calculation. Plaintiff’s calculation of the contract 

price for CY is correct. Plaintiff’s calculation of the credits 

and its incidental expenses for the MM sale of 3500 seats needs 

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to be adjusted.6 The Court finds that plaintiff did not 

appropriately document the 5% administrative charge as an 

incidental expense. Tr. 56:1-13(1). The 5% translates to $4,550. 

The Court also finds that plaintiff’s $6.50 per seat charge for 

seat removal on the MM sale was not appropriate. Plaintiff had 

to pay this amount to Harriott whether or not defendant breached 

the contract. Tr. 153:17 to 154:3(1). This adjustment results in 

an extra credit to defendant of $22,750 (3,400 x $6.50). The 

Court will allow Harriott’s $1.00 charge as an incremental cost

since this is what plaintiff paid to ship the seats to the MM. 

Tr. 55:19-23(1). The sales tax charge will not be disallowed. 

Thus, the credit defendant should get for the MM sale is $91,000 

- $3,500 -4,744 = $82,756.

Thus, plaintiff’s 2-709 damages for the CY breach is 

calculated as follows:

$482,500.00 (CY contract price)

 - 187,266.66 (amount defendant paid)

 - 82,756.00 (MM credit)

 - 47,986.44 (Sarasota credit)

 - 19,581.00 (CY scrap credit)

 $144,909.90

5. Section 2-708 Damages

Even if the Court agreed with defendant that plaintiff may 

not recover damages under 2-709, plaintiff can still recover the 

6 Incidental expenses are recoverable under 2-709. They include any 

commercially reasonable charges or expenses incurred in connection with the 

return or resale of goods or otherwise resulting from a contract breach. See

2-270. Incidental damages include prejudgment interest. Entron, Inc. v. 

Affiliated FM Ins. Co., 749 F.2d 127, 131-132 (2nd Cir. 1984).

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same amount of claimed damages under 2-708, i.e., its lost 

profit. The Court must look to the profit calculation under 2-

708(2) because, as noted, no market existed for the Phase 2 

seats making the remedy under 2-708(1) inapplicable. See In re 

S.N.A. Nut Co., 247 B.R. 7 (Bkrtcy. N.D. Ill. 2000)(when there 

is no readily accessible market from which to determine market 

price, 2-708(2) rather than 2-708(1) should be examined). As 

already discussed, the sale of seats to defendant was not a 

typical sale of goods. Since plaintiff did not incur any costs 

to make or procure the seats, every dollar it earned from the 

sale to defendant was profit. In other words, the contract price 

was the same as plaintiff’s profit. Thus, the same damage 

calculation under 2-709 applies to 2-708. For this reason, 

plaintiff is entitled to an award of $144,909.90 for CY damages 

whether plaintiff’s damages are calculated under 2-708 or 2-709.

6. Foley Field Damage Computation

Plaintiff’s damage claim for the breach of the Foley Field 

contract is straightforward. If made, defendant’s argument that 

it was commercially unreasonable to pay $6,200 to remove the 

Foley Field benches is rejected. Again, plaintiff was in a time 

crunch and had to do something with the seats. Defendant is 

hard pressed to argue that the $6,200 plaintiff paid was too 

high when he offered to do the removal work for $24,000. Tr. 

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146:10-17(1). Further, Archer admitted it was not unreasonable 

to pay $2.00 to remove the Foley Field seats. Tr. 172:1-3(1). 

Under the common law a party who breaches a contract is 

liable for all of the natural and probable consequences of the 

breach of that contract. Sons of Thunder, 148 N.J. at 427 

(citation omitted). Plaintiff had to pay $6,200 to remove the 

Foley Field seats. Defendant acknowledges this charge was 

reasonable and in fact was substantially less than plaintiff’s 

estimate to do the same work. Therefore, plaintiff may recover 

$6,200 for defendant’s breach of the Foley Field contract.

7. Pre-Judgment Interest

The trial court has the discretion to grant or deny 

prejudgment interest. It is settled that prejudgment interest 

may be awarded on contract claims even where the debt is for an 

unliquidated damage claim. Meshinsky v. Nichols Yacht Sales, 

Inc., 110 N.J. 464, 478 (1988). The decision in Izzo v. Izzo, 

C.A. No. A-2335-06T2, 2008 WL 482406, at *9-10 (App. Div. Feb. 

20, 2008)(citation and quotation omitted), noted:

In awarding prejudgment interest, “[t]he basic

consideration is that the defendant has had the use, 

and the plaintiff has not, of the amount in question; 

and the interest factor simply covers the value of the 

sum awarded for the prejudgment period during which 

the defendant had the benefit of monies to which the 

plaintiff is found to have been earlier entitled.

It is also within the trial court’s discretion to choose the 

date on which prejudgment interest will begin to run on the 

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basis of equitable principles. The trial judge should set forth 

the particular point from which prejudgment interest is 

calculated. Id. at *10. The Court finds that prejudgment interest 

is warranted by considerations of justice and fair dealing. The 

Court believes it has always been clear, as evidenced by Judge 

Kugler’s summary judgment decision, that defendant breached its 

contracts. It is unfair that plaintiff has been denied the 

benefit of its contracts due to defendant’s breach. The Court 

finds that the appropriate date for the award of interest to 

start running is January 5, 2011, the date plaintiff filed its 

complaint.

CONCLUSION

In conclusion, the Court will enter a judgment in 

plaintiff’s favor in the amount of $151,109.90, plus prejudgment 

interest running from January 5, 2011. Since it has already been 

determined that defendant breached its contracts, the Court’s 

role was to determine if plaintiff is entitled to damages and if 

so how much. With regard to CY, plaintiff is entitled to damages 

pursuant to 2-709, i.e., the contract price. The Court finds 

that defendant accepted within the meaning of 2-606 of the UCC 

all of the CY seats. As such, plaintiff is entitled to an award 

of the contract price plus incidental expenses, minus payments 

already made and the money plaintiff received from the sale of 

the seats. Plaintiff satisfied the “hold” requirement in 2-

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709(2). The price under the CY contract was $482,500. When the 

payment ($187,266) and seat sale credits ($150,323.44) are 

deducted from the price of the CY contract, the resulting damage 

award for the CY breach is $144,909.90. Further, the Court 

finds that even if the Court ruled that plaintiff is not 

entitled to damages under 2-709, plaintiff is entitled to the 

same amount of damages under 2-708.

For the reasons discussed in detail, the Court rejects 

defendant’s argument that plaintiff did not act in a 

commercially reasonable manner to reduce or mitigate its 

damages. Plaintiff was not in the business of selling used 

seats. The fact that there was more the plaintiff could have 

done did not render its actions commercially unreasonable. 

Although plaintiff may not have acted perfectly, it acted 

responsibly and reasonably under the circumstances. Defendant 

repeatedly second guesses plaintiff’s mitigation efforts but it

fails to recognize that the reason the lawsuit was filed is 

because defendant could not sell the seats it contracted to pay 

for and remove. Defendant is hard pressed to argue plaintiff 

should have sold the seats when he could not sell the seats 

himself.

Defendant’s “Monday morning quarterbacking” is not 

persuasive. It certainly would have been nice if defendant or 

plaintiff could have sold the seats at a tidy profit. However, 

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given the prevailing economic conditions and uniqueness of the 

seats at issue, this was not in the cards. Further, it would 

have been unreasonable for plaintiff to hold onto or to store 

the unsold CY or Foley Field seats. This would have resulted in 

the incurrence of higher “carrying costs” and incidental 

expenses to plaintiff with absolutely no assurance of how long 

it would have to continue to store unsellable used stadium 

seats. The fact that defendant still has some unsold seats 

evidences that it is fanciful for defendant to think that 

plaintiff could have sold the CY seats for a profit.

As to Foley Field, the analysis is more straightforward. 

Since defendant did not remove the seats and benches at no cost 

as he contracted to do, defendant is liable for the cost 

plaintiff had to pay to remove the seats and benches. This 

amount is $6,200.

Accordingly, for all the foregoing reasons, the Court finds 

that defendant is liable to plaintiff in the amount of 

$144,909.90, for breaching its CY contract. Plaintiff is liable 

to plaintiff for $6,200 for breaching the Foley Field contract. 

A Judgment in the amount of $151,109.90, plus prejudgment 

interest running from January 5, 2011, will be entered against 

defendant.

s/Joel Schneider 

JOEL SCHNEIDER

United States Magistrate Judge

Dated: September 26, 2014

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