1 

NOT FOR PUBLICATION (Doc. No. 26) 

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

CAMDEN VICINAGE

___________________________________ 

 : 

AMERICAN SEATING COMPANY, : 

 : 

 Plaintiff, : 

 : Civil No. 11-53 (RBK/AMD) 

 v. : 

 : OPINION 

ARCHER PLASTICS INC., : 

d/b/a Archer Seating Clearinghouse and : 

Archer Seating, : 

 Defendant. : 

___________________________________ : 

KUGLER, United States District Judge: 

 This matter comes before the Court on the motion of American Seating Company 

(“Plaintiff” or “American Seating”) for summary judgment on its breach-of-contract claims 

against Archer Plastics, Inc. (“Defendant” or “Archer”). Because the Court finds no genuine 

issue of material fact as to the existence of two agreements between Plaintiff and Defendant, or 

as to Defendant’s breach of those agreements, Plaintiff’s motion is granted as to Defendant’s 

liability for contract damages, with the amount of damages to be determined later. 

I. BACKGROUND

 The instant lawsuit arises out of a contract dispute between two companies that install, 

remove, and/or sell stadium seating. Plaintiff entered into one contract to supply new stadium 

seats at Oriole Park at Camden Yards, located in Baltimore, Maryland, and another agreement to 

supply new seating at Foley Field at the University of Georgia, located in Athens, Georgia. 

Decl. of Chuck Bailey (“Bailey Decl.”), Pl.’s Br. in Support of Summ. J. (“Pl.’s Br.”), ¶ 2. In 

order to do so, Plaintiff needed first to remove the existing seats and logo ends from both 

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stadiums. Id. at ¶ 3. Plaintiff approached Defendant in connection with the seat and logo end 

removal. Id. Plaintiff claims that it entered into two agreements with Defendant (the “Camden 

Yards Agreement” and the “Foley Field Agreement”), which provided that Defendant would 

remove all of the seats and logo ends in each of those stadiums. Id. Plaintiff claims that the 

Camden Yards Agreement provided that Defendant would pay Plaintiff $8.50 per seat for 

removal of all seats at Camden Yards, and $18.18 per logo end, and that Defendant would keep 

the removed seats for resale to third parties. Pl.’s Br., 1-2. The Foley Field Agreement, Plaintiff 

contends, was an agreement memorialized in a letter in which “Archer Seating agreed to remove 

stadium seating and aluminum benches from Foley Field at no cost to American Seating.” Id. at 

7. 

 Defendant argues that no agreement formed between itself and Plaintiff regarding seat 

removal at Camden Yards or Foley Field. Defendant indicates that what Plaintiff refers to as the 

“Camden Yards Agreement” was “an unsigned purchase order,” which was “understood by 

Plaintiff and [Defendant] to be nothing more than a proposal.” Def.’s Br. in Opposition to 

Summ. J. (“Def’s Br. Opp.”), 1-2. Furthermore, Defendant indicates that the “purchase order” 

did not specify how many seats would be removed from Camden Yards, and thus did not bind 

Defendant to remove and purchase of all seats in the stadium. However, notwithstanding 

Defendant’s claims that no agreement existed between itself and Plaintiff to remove seats from 

Camden Yards, the parties do agree that Defendant did remove some seats and logo ends from 

that stadium, and paid Plaintiff $187,266.66 for the items removed. Pl.’s Statement of 

Undisputed Material Facts (“Pl.’s SUMF”), ¶ 19; see also Def.’s Responsive Statement of 

Material Facts (“Def.’s RSMF”), ¶ 19. Moreover, there is no dispute that the parties eventually 

agreed on a price of $8.50 per seat, which is what Defendant paid Plaintiff for the seats it 

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actually removed. Pl.’s SUMF, ¶ 15; Def.’s Br., 12. Accordingly, what Defendant appears to be 

arguing is that the proposals sent on October 15 and October 21, 2009, which provided for 

“removal of the existing chairs,” were not binding agreements. Pl.’s Br., Exs. 2, 4. Rather, 

Defendant appears to claim, the only document binding it to performance at Camden Yards was 

a Purchase Order dated November 5, 2009, which, Defendant argues, did not specify the quantity 

of seats or logo ends that Defendant would remove. Pl.’s Br., Ex. 5. 

 Moreover, as for the Foley Field Agreement, Defendant argues that there was no binding 

contract, but rather “simply a letter of possible interest, nothing more.” Id. at 2. Defendant 

claims that it “was not aware that Plaintiff intended to rely on Archer Plastics[’s] gesture to assist 

when bidding for the Foley Field contract.” Id. The parties agree that Defendant did not remove 

anything from Foley Field. Pl.’s SUMF, ¶ 21; see also Def.’s RSMF, ¶ 21. 

 Plaintiff alleges that Defendant breached the Camden Yards Agreement by performing 

only partially, and that Defendant breached the Foley Field Agreement by failing to perform 

altogether. Defendant responds that there is no breach because it was under no obligation to 

remove all seats from Camden Yards, and because an Agreement was never formed with respect 

to Foley Field. Defendant further argues Plaintiff breached express warranties because the seats 

and logo ends did not conform with what was promised to Defendant. Finally, Defendant argues 

that Plaintiff failed to mitigate its damages in connection with any breach of contract.

II. STANDARD

A. Choice of Law 

 Because the Court hears this case pursuant to its diversity jurisdiction, 28 U.S.C. § 1332, it must 

apply state substantive law and federal procedural law. Gasperini v. Ctr. for Humanities, 518 U.S. 415, 

427, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996) (“Under the Erie doctrine, federal courts sitting in 

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diversity apply state substantive law and federal procedural law.”). The parties assume that New Jersey 

law governs, and, indeed, it is the substantive law of New Jersey that the Court applies here.1

B. Summary Judgment 

 Summary judgment is appropriate where the Court is satisfied that “there is no genuine 

issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material 

fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court weighs the 

evidence presented by the parties, “[t]he evidence of the non-movant is to be believed, and all 

justifiable inferences are to be drawn in his favor.” Id. at 255. 

 The burden of establishing the nonexistence of a “genuine issue” is on the party moving 

for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 

1996). The moving party may satisfy its burden either by “produc[ing] evidence showing the 

absence of a genuine issue of material fact” or by “‘showing’— that is, pointing out to the 

district court—that there is an absence of evidence to support the nonmoving party’s case.” 

Celotex, 477 U.S. at 325. 

 Once the moving party satisfies this initial burden, the nonmoving party must “set out 

specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e). To do so, the nonmoving 

party must “do more than simply show that there is some metaphysical doubt as to the material 

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to 

                                                           

1 Federal courts sitting in diversity “determine which state’s substantive law applies by applying the choice-of-law 

rules of the jurisdiction in which the court sits.” Garcia v. Plaza Oldsmobile LTD., 421 F.3d 216, 219 (3d Cir. 2005) 

(citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). New Jersey follows the Restatement 

(Second) of the Conflict of Laws, which indicates that a matter is governed by the law of the state with the “most 

significant relationship” to the issue before the court. P.V. v. Camp Jaycee, 197 N.J. 132, 962 A.2d 453, 457 (2008). 

Here, the parties point to no state other than New Jersey whose law would potentially apply to this matter; 

accordingly, we assume, as the parties have, that New Jersey bears the most significant relationship to the issues 

now before us.

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survive summary judgment, the nonmoving party must “make a showing sufficient to establish 

the existence of [every] element essential to that party’s case, and on which that party will bear 

the burden of proof at trial.” Celotex, 477 U.S. at 322. Furthermore, “[w]hen opposing 

summary judgment, the nonmovant may not rest upon mere allegations, but rather must ‘identify 

those facts of record which would contradict the facts identified by the movant.’” Corliss v. 

Varner, 247 F. App’x 353, 354 (3d Cir. 2007) (quoting Port Auth. of N.Y. & N.J. v. Affiliated 

FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002)). 

 In deciding the merits of a party’s motion for summary judgment, the court’s role is not 

to evaluate the evidence and decide the truth of the matter, but to determine whether there is a 

genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province 

of the factfinder, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 

1363 (3d Cir. 1992). 

III. DISCUSSION

A. Camden Yards 

 Defendant argues that, Plaintiff’s claims notwithstanding, what Plaintiff refers to as the 

Camden Yards Agreement was a “purchase order . . . understood by Plaintiff and Archer Plastics 

to be nothing more than a proposal.” Def.’s Br. Opp., 1. Two proposals appear to have preceded 

the Purchase Order to which Defendant refers. The first proposal is an October 15, 2009 letter 

printed on Defendant’s stationery, which was written by Steve Archer (President of Archer 

Seating Clearinghouse) and addressed to Chuck Bailey, formerly the National Sales Manager for 

the Sports Division of American Seating. Pl.’s Br., Ex. 2. The proposal lists seven conditions 

governing the proposed purchase of seats at Oriole Park at Camden Yards by Defendant. Id. A 

revised version of that proposal was also created on Defendant’s stationery and addressed to 

Plaintiff on October 21, 2009. Pl.’s Br., Ex. 4. Both proposals indicate that Defendant would 

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pay $7.50 per seat for removal from Camden Yards. Pl.’s Br., Exs. 2, 4. The parties agree that 

they continued to negotiate on this price term. Pl.’s SUMF, ¶ 14; Def.’s Br. Opp., 12. There is 

no dispute that they eventually agreed on a price of $8.50 per seat, which is what Defendant paid 

Plaintiff for the seats it actually removed. Pl.’s SUMF, ¶ 15; Def.’s Br., 12. 

 A Purchase Order generated on Defendant’s letterhead, addressed to Plaintiff’s 

representative, was submitted on November 5, 2009. Pl.’s Br., Ex. 5. The Purchase Order 

indicates a quantity of 45,000 “Surplus Stadium Seats from Oriole Park,” at a price of $8.50 per 

seat. Id. It also indicates a quantity of 5,500 “Logos,” at $18.18 each. Id. Accordingly, the 

entire Purchase Order totals $482,500.00. Id. Defendant points out that, for the seats, the 

Purchase Order indicates the following: “Quantities subject to correction as field information is 

gathered.” Id. Likewise, for the logo ends, the purchase order indicates: “Quantities subject to 

correction, estimates for now.” Id. Thus Defendant argues that the Purchase Order did not 

contain “a definitive description or count of the items to be removed.” Def.’s Br. Opp., 12. 

Moreover, Defendant argues, because the Purchase Order did not include terms that had been 

drafted in the October 15, 2009 and October 21, 2009 proposals, which Plaintiff’s representative 

“mandated must be included in the agreement,” the Purchase Order did not constitute an 

agreement to purchase the existing seats. Id. In fact, Defendant appears to deny that that the 

Purchase Order constitutes any kind of binding agreement at all. 

 Despite Defendant’s argument that no binding agreement was formed with Plaintiff, both 

Plaintiff and Defendant agree that the removal of seats at Camden Yards was to take place in two 

phases. Def.’s Br., 12; Pl.’s SUMF, ¶ 14. The evidence reinforces this, as Defendant sent the 

Purchase Order to Plaintiff as an attachment to an email that read, “here is the PO for both 

phases.” Pl.’s Br., Ex. 5 (emphasis added). Plaintiff argues that the seats that Defendant did 

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remove from Camden Yards, and paid Plaintiff a total of $187,266.66 for, constituted the first 

phase of seat and logo end removal. Plaintiff also points to an email it received from Steve 

Archer on April 19, 2010, indicating that his business “is in real bad shape from the Camden 

Yards deal.” Email from Steve Archer to Chuck Bailey, April 19, 2010, Pl.’s Br., Ex. C. That 

email further explained, “[f]or the batch this fall I don’t know what will happen unless a miracle 

occurs where we sell a lot of seats.” Id. Therefore, according to Plaintiff, in this email 

Defendant “acknowledged that phase 2 was approaching and expressed concern about its ability 

to perform.” Id. 

 Although Defendant responds by arguing that it cannot be accountable for removal and 

purchase of the remaining seats because no agreement was ever formed between American 

Seating and Archer Seating, Defendant’s protest that the Purchase Order did not constitute an 

agreement to is belied by Defendant’s own performance. Defendant offers no explanation as to 

why, if Archer Seating had not agreed to remove and pay for seats and logo ends from Camden 

Fields, it then proceeded to do so. Moreover, Defendant does not explain—nor can it—why it 

would have paid Plaintiff according to the prices detailed in the Purchase Order, if there had 

been no agreement to purchase and remove seats at that price. 

 “A contract for sale of goods may be made in any manner sufficient to show agreement, 

including conduct by both parties which recognizes the existence of such a contract.” N.J. Stat. § 

12A:2-204.2

 In this case, the conduct of Defendant—namely, performance of the contract—

irredeemably undermines its argument that no contract was formed with Plaintiff. 

                                                           

2

 Because the agreement at issue concerns both a service—removal of the stadium seats—and sale of goods—

Defendant’s purchase of the seats—it is a mixed contract for goods and services. “When a contract is a mixed 

contract for goods and services, a court must determine whether the sales or services aspect predominates.” Custom 

Communications Eng’g, Inc. v. E. F. Johnson Co., 269 N.J. Super. 531, 537, 636 A.2d 80 (App. Div.1993). “The 

legal analysis most frequently employed when courts are faced with such mixed contracts is that Article 2 of the 

UCC is applicable if the sales aspect predominates and is inapplicable if the service aspect predominates.” Id.

(internal quotation marks omitted). The issue of whether the goods aspect or services aspect predominates is a 

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 Accordingly, the only dispute presented to this Court concerning the Camden Yards 

purchase is whether or not the agreement to remove and purchase seats and logo ends at Camden 

Yards required Defendant to remove and purchase all seats and logo ends. The October 15, 2009 

and October 21, 2009 proposals both offer persuasive evidence in support of Plaintiff’s argument 

that the agreement required removal of all seats. As the New Jersey law on such parol evidence 

provides, 

[t]erms with respect to which the confirmatory memoranda of the parties agree or which 

are otherwise set forth in a writing intended by the parties as a final expression of their 

agreement with respect to such terms as are included therein may not be contradicted by 

evidence of any prior agreement or of a contemporaneous oral agreement but may be 

explained or supplemented . . . by evidence of consistent additional terms unless the court 

finds the writing to have been intended also as a complete and exclusive statement of the 

terms of the agreement. 

N.J.S.A. § 12A:2-202(b). The October 15, 2009 and October 21, 2009 proposals both make 

reference to “removal of the existing chairs.” That language does not contradict the later 

Purchase Order, but rather “explain[s] or supplement[s]” its terms by means of an additional 

term—“existing”—which, when added to the Purchase Order, remains consistent with it. 

 Accordingly, the Court considers the October 15 and October 21 proposals in order to 

establish the meaning of the Purchase Order—and these strongly suggest that the Purchase Order 

effectuated two weeks later also contemplated the removal of the existing chairs from the 

stadium. That is, the October proposals create significant doubt that the phrase “[q]uantities 

subject to correction,” included in the Purchase Order, should be interpreted to mean that 

Defendant was offering to buy as many seats as it desired. Rather, the proposals suggest that 

                                                                                                                                                                                               

question of fact. Quality Guaranteed Roofing, Inc. v. Hoffmann-La Roche, Inc., 302 N.J. Super. 163, 166 (App. 

Div. 1997). In the instant case, the Court finds that the sales aspect predominates, because the contract provided for 

payment from Defendant to Plaintiff. Were the services aspect (that is, removal of seats and logo ends) to 

predominate, Defendant would be both providing Plaintiff with the service of removing seats, and paying Plaintiff 

for the opportunity to do so. More logically, it would seem that the object of the agreement was Defendant’s 

acquisition of the removed seating, since Defendant paid Plaintiff for the seats. 

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Plaintiff’s interpretation—that the number of seats to be purchased was “subject only to 

adjustment based on a final count of the seating in the stadium”—is the correct understanding of 

the contract. Pl.’s Reply Br., 2. 

 While the terms of the October 15 and October 21, 2009 proposals create serious doubt as 

to Defendant’s interpretation of the November 5 Purchase Order, on their own that doubt would 

not be sufficient to support a determination that no genuine issue of material fact existed as to the 

terms of the Camden Yards Agreement. However, another aspect of the agreement eliminates 

any residual factual dispute that might remain after contemplation of the “existing chairs” 

language of the October 15 and October 21 proposals. Specifically, Defendant admits that it 

agreed to carry out the seat removal and purchase in two phases, and Defendant also 

acknowledged in its April 19, 2010 email to Plaintiff that it was responsible for removing and 

purchasing another set of seats (“the batch this fall”), which Defendant doubted it would be able 

to do. Email from Steve Archer to Chuck Bailey, April 19, 2010, Pl.’s Br. Ex. C. Moreover, 

Defendant does not argue that it ever removed and purchased seats after the first phase. 

Accordingly, it is clear that one-time removal and purchase of seats from Camden Yards was not 

complete performance of what was agreed upon the Purchase Order. Combined with the 

evidence (from the October 15 and October 21, 2009 proposals) that Plaintiff and Defendant 

were negotiating for removal of all existing seating at Camden Yards, Defendant’s 

acknowledgment that a second phase of seat removal and purchase was required leaves no 

genuine issue as to the fact that Defendant agreed to remove all existing seats, and thus breached 

the Camden Yards Agreement by performing only partially. 

 Defendant attempts to establish a genuine issue of material fact as to its liability for 

breach of contract through the Certification of Steven Mr. Archer, owner of Archer Plastics, Inc. 

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“Archer Cert.” Mr. Archer states that Plaintiff asked him for a Purchase Order so that Plaintiff 

“would have something for his file.” Id. at ¶ 3. He further states that the Purchase Order 

intended “to set the price for the seats I would be removing but not to bind [Defendant] to 

remove all of the seats.” Id. Mr. Archer avers that he and Plaintiff’s representative, Chuck 

Bailey, “both understood that [Defendant] did not have the ability to pay for all of the seats at 

Camden Yards,” and that the agreement was that, “[i]f [Defendant] was able to sell the first batch 

of seats from phase one, [Defendant] would have been able to purchase the seats in phase two.” 

Id. at ¶ 4. 

 To begin with, as Plaintiff points out, Mr. Archer’s Certification attempts to introduce 

parol evidence as to the parties’ understanding of the Purchase Order. New Jersey law explains 

that terms contained within “confirmatory memoranda” of an agreement “may not be 

contradicted by evidence of any prior agreement or of a contemporaneous oral agreement . . . .” 

N.J.S.A. § 12A:2-202. Mr. Archer’s Certification would tend to contradict the Purchase Order, 

because Mr. Archer states that the second phase of the removal and purchase was optional, 

whereas the Purchase Order indicates that 45,000 seats and 5,500 logo ends would be removed 

and purchased. Moreover, Mr. Archer’s Certification also contradicts the October proposals, 

which provide for removal and purchase of existing chairs, and contain no language suggesting 

that the number of seats purchased would be subject to the number resold after phase one. 

 Furthermore, even apart from the fact that Mr. Archer’s Certification is likely barred by 

New Jersey statute, it must be noted that there is no evidence in the record—other than Mr. 

Archer’s Certification—which supports the claim that Defendant would be freed from 

completing phase two of the seat removal and purchase if it was unable to sell seats from phase 

one. As the Supreme Court has explained, “[w]hen opposing parties tell two different stories, 

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one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a 

court should not adopt that version of the facts for purposes of ruling on a motion for summary 

judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Mr. Archer’s email to Chuck Bailey, 

which indicated that “[f]or the batch this fall I don’t know what will happen unless a miracle 

occurs where we sell a lot of seats,” does not indicate that purchasing “the batch this fall” was an 

optional undertaking that Defendant had the right not to perform. Pl.’s Br., Ex. C. In fact, 

evidence of such an arrangement is found nowhere in record. Thus the Court finds that no 

genuine issue of material fact is raised by Mr. Archer’s Certification as to the Camden Yards 

Agreement. 

B. Foley Field 

 On January 19, 2010, Defendant sent a letter to Plaintiff indicating that, “[b]ased on the 

photos [of the old seats in Foley Field] alone, and some research on Foley Field, we will commit 

to removing those seats at no cost to American Seating.” Pl.’s Br., Letter from Steve Archer to 

Chuck Bailey, Jan.19, 2010 (“Foley Field Letter”), Ex. 6. However, in Defendant’s April 19, 

2010 letter to Plaintiff, Defendant indicated that “I can’t remove the seats in Athens GA [Foley 

Field] for free, just don’t have the money to do it or the sales for the seats.” Pl.’s Br., Email from 

Steve Archer to Chuck Bailey and Fritz Owen, Apr. 19, 2010, Ex. C. Plaintiff contends that 

Defendant breached a binding agreement in failing to remove the seats at Foley Field. Defendant 

rejoins that Mr. Archer “never intended [the January 19 letter] to be a binding contract.” Def.’s 

Br. Opp., 12. 

 Under New Jersey law, the basic elements of a valid contract are: (1) an offer by the 

promisor to act or forebear in some way; (2) acceptance by the promisee of the promisor’s offer; 

and (3) fair consideration paid by the promisee in exchange for the promisor’s performance. See

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Am. Handkerchief Corp. v. Frannat Realty Co., 17 N.J. 12, 17 (1954). In this case, all elements 

of a valid contract are present. As the January 19, 2010 letter indicates, Plaintiff sent Defendant 

photographs of the Foley Field seats (aluminum benches and American Seating Z-Standards), 

and offered the seats to Defendant in exchange for their removal. Foley Field Letter. The 

January 19 letter also explains that Defendant accepted Plaintiff’s offer. See id. (indicating that 

“we will commit to removing those seats . . .”). Finally, Plaintiff promised Defendant the seats 

themselves, in exchange for Defendant’s seat-removal services. 

 Although Defendant argues that a factual question remains as to “whether Archer Plastics 

manifested an intent to be bound” to the agreement it assented to in its January 19, 2010 letter, it 

is clear that an agreement to remove the benches and standards at Foley Field was formed. As 

the New Jersey Supreme Court has explained, “[m]ere speculation as to the probabilities of an 

intention is not enough; the evidence must be such as can lead a reasonable man to a distinct 

conclusion.” Krosnowski v. Krosnowski, 22 N.J. 376, 386-87, 126 A.2d 182, 187 (1956) 

(internal quotation marks omitted). In the instant matter, Defendant has not offered evidence that 

could lead a reasonable factfinder to the “distinct conclusion” that Defendant’s written 

correspondence with Plaintiff indicating that it would “commit” to removing the Foley Field 

seating was not a binding agreement. Defendant has presented only the certification of Steven 

Archer, which states that “the terms of the removal such as the date to remove the seats or any 

other essential terms” were never discussed between Plaintiff and Defendant, so that no binding 

contract was formed between them. Archer Cert., Def.’s Br. Opp., ¶ 13. However, Mr. Archer’s 

January 19, 2010 letter directly contradicts his Certification, creating a “distinct conclusion” that 

is the opposite of what Defendant now argues. The Letter indicates that Defendant would 

remove the seats “[t]ime frame circa June 2010 approx.” Foley Field Letter. Moreover, it 

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provides for the removal of 1,200 approx. aluminum benches and 1,800 American Seating ZStandards with 406 plastic as per photos . . . .” Id. Finally, the letter states that “[t]he inclusion 

of the aluminum benches in our project is essential.” Id. 

 Because Mr. Archer’s Certification is the only evidence offered to contradict the 

otherwise lucid evidence that a contract was created concerning the seats at Foley Field, and 

because Mr. Archer’s Certification is directly contradicted by the record, there is no genuine 

issue of material fact as to the fact that the Foley Field Agreement existed, and that the 

Agreement was breached by Defendant’s nonperformance. 

C. Plaintiff’s Alleged Breach of Express Warranties 

 Defendant also argues that, if a contract was formed between Plaintiff and Defendant, 

Plaintiff breached the express warranty “that the goods shall conform” to the agreement. Def.’s 

Br., 14 (quoting N.J.S.A. 12A:2-313(1)(a)). That is, Defendant argues, Plaintiff represented to 

Defendant that “the Baltimore Orioles organization would help market the seats,” but that “the 

Baltimore Orioles organization refused to do so.” Def.’s Br., 15.3

 Moreover, Defendant argues 

that “many of the seats, for the most part, proved to be so deteriorated through use and 

weathering that they were not saleable.” Id. Defendant also argues that “many of the seats were 

redirected or angled seats which are not saleable.” Id. Defendant states that it “informed 

American Seating of the non-conformities and was told it would receive a credit,” but that “[t]o 

date, no credit has been received for the non-conforming seats.” Id. at 15. Therefore, Defendant 

argues, it is “entitled to recover as damages the difference at between [sic] the value of the goods 

                                                           

3

 Plaintiff argues that it “was not able to review the substance” of Defendant’s warranty argument, because page 15 

of Defendant’s responsive brief was omitted from its electronic filing. Pl.’s Reply, 9. In the future, Plaintiff might 

consider the simple solution of contacting its adversary for such missing pages, as the Court did when reviewing 

Defendant’s Opposition. 

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accepted and the value they would have had if they had been as warranted,” pursuant to New 

Jersey statute. Id. at 15 (citing N.J.S.A. 12A:2-714). 

 However, as Plaintiff points out, the statute in question provides a cause of action for 

damages in contract; it does not elucidate a contract defense. See N.J.S.A. 12A:2-714 (entitled 

“Buyer’s damages for breach in regard to accepted goods”). Defendant has not filed breach-ofwarranty claims against Plaintiff in the instant matter. Therefore, the alleged breach of express 

warranty has no bearing on the issues in this case. Furthermore, although Defendant argues that 

many of the seats at Camden Yards were not saleable because they had deteriorated or were 

redirected, the record suggests that Defendant knew this at the time the Camden Yards 

Agreement was formed. See Email from Steve Archer to Chuck Bailey, Nov. 16, 2009, Def.’s 

Br., Ex. 4 (referring to “the 6,000 seat bottoms we have to pay to remove but cannot use, same 

with the 4,000 approx. redirected”); see also Email from Steve Archer to Chuck Bailey, Nov. 19, 

2009 (attaching Purchase Order for both phases). Accordingly, Defendant’s argument 

concerning express warranties is meritless. 

D. Mitigation

 Defendant contends that Plaintiff had a duty to mitigate its damages with respect to both 

Agreements, and that, for both Agreements, Plaintiff failed to do so. Specifically, Defendant 

argues that, although it “informed Plaintiff of its inability to remove any more seats from 

Camden Yards on April 19, 2010 . . . . Plaintiff sat until June 1, 2010 before responding.” Def.’s 

Br. Opp., 17. According to Defendant, Plaintiff then failed to take measures that would have 

allowed it to recoup a larger profit, even though Defendant itself advised Plaintiff of such 

opportunities.4

 Id. at 17-18. Defendant also argues that it informed Plaintiff that it would not 

                                                           

4

 Moreover, Plaintiff acknowledged in an internal email dated April 19, 2010 that it should consider another 

company for removal of the seats from Foley Field, since Defendant was unlikely to complete that project. See

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remove seats from Foley Field at no cost on April 19, 2010. Id. at 18. Defendant indicates that, 

although Plaintiff had at that time received another offer for free seat removal from a different 

company, nevertheless Plaintiff took no action for several months. Id.

 Indeed, under New Jersey law, it is well-settled that “parties injured by a breach of 

contract have a common law obligation to take reasonable steps to mitigate their damages.” 

State v. Ernst & Young, L.L.P., 386 N.J. Super. 600, 902 A.2d 338, 348 (App. Div.2006). As 

the New Jersey Superior Court, Appellate Division explained, 

[o]nce a party has reason to know that performance by the other party will not be 

forthcoming, he is ordinarily expected . . . to take such affirmative steps as are 

appropriate in the circumstances to avoid loss by making substitute arrangements or 

otherwise . . . . The amount of loss that he could reasonably have avoided by . . . making 

substitute arrangements . . . is simply subtracted from the amount that would otherwise 

have been recoverable as damages. 

Id. (quoting Restatement (Second) of Contracts, § 350 cmt. b (1981)). “[T]he burden of proving 

facts in mitigation of damages rest[s] upon the party breaching the contract.” Ingraham v. 

Trowbridge Builders, 297 N.J.Super. 72, 687 A.2d 785, 791 (App. Div.1997) (quoting Cohen v. 

Radio-Electronics Officers, 275 N.J.Super. 241, 645 A.2d 1248, 1259 (App. Div.1994)). 

 Accordingly, as Defendant argues, Plaintiff had a duty to mitigate the damages incurred 

as a result of the breach of both Agreements. Because Defendant has pointed to specific facts in 

support of its argument that the damages for Defendant’s breach could have been lower than 

those now claimed by Plaintiff (e.g., the lapse in time between when Defendant informed 

Plaintiff of its inability to perform, and Plaintiff’s attempts to find another buyer; and the 

difference between the amount Plaintiff claims to have earned from the sale of the seats to third-

                                                                                                                                                                                               

Email from Chuck Bailey to Nelson Wilfore (April 19, 2010, 9:47), Pl.’s Br. Summ. J., Ex. C. Plaintiff also 

acknowledged the same with regard to the Camden Yards Agreement: “Archer may bail-out this fall on the second 

phase of Camden it sounds like. We should begin looking for an alternative for this as well.” Id.

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party buyers, and the amount Defendant projects that Plaintiff should have earned), the Court 

finds a genuine issue of material fact as to whether or not Plaintiff mitigated damages. 

 Accordingly, while summary judgment is granted as to Defendant’s liability, it is denied 

as to the amount of damages in this matter.

IV. CONCLUSION

 For the foregoing reasons, Plaintiff’s motion for summary judgment as to liability is 

GRANTED. An accompanying Order shall issue today. 

Date: 7/18/2012 /s/ Robert B. Kugler 

 ROBERT B. KUGLER 

 United States District Judge 

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