2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-10-2013

Promotion In Motion v. Beech Nut Nutrition Corp

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4255

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Recommended Citation

"Promotion In Motion v. Beech Nut Nutrition Corp" (2013). 2013 Decisions. Paper 105.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 12-4255

________________

PROMOTION IN MOTION, INC.; PIM BRANDS, LLC,

Appellants

v.

BEECH-NUT NUTRITION CORP., a HERO GROUP CORPORATION

________________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 02-09-cv-01228)

District Judge: Honorable William J. Martini

________________

Argued: September 24, 2013

Before: AMBRO, FISHER, and HARDIMAN, Circuit Judges

(Opinion filed: October 10, 2013)

William D. Wallach, Esquire (Argued)

McCarter & English

110 Mulberry Street

Newark, NJ 07102

Counsel for Appellants

Paul J. Dillon, Esquire (Argued)

Bloom & Dillon, P.C.

70 South Orange Avenue, Suite 240

Livingston, NJ 07039
2

Richard A. Cirillo, Esquire

Karen R. Kowalski, Esquire

David A. Joffe, Esquire

King & Spalding LLP

1185 Avenue of the Americas

New York, NY 10036

Counsel for Appellee

________________

OPINION

________________

AMBRO, Circuit Judge

Promotion in Motion, Inc. is a marketer and distributor of brand-name confections, 

fruit snacks, and specialty foods. PIM Brands, LLC (together with Promotion in Motion, 

“PIM”) operates a facility manufacturing food products for its own brand names and for 

other private labels. Beech-Nut Nutrition Company (“Beech-Nut”) makes and sells baby 

food products. 

In late 2007, Beech-Nut solicited PIM to produce a new, all-natural gummy snack, 

called “Fruit Nibbles,” for sale under the Beech-Nut brand. Beech-Nut directed the 

development process, requesting particular colors, textures and flavors, though not 

necessarily providing guidance as to the product’s specific formulation. PIM began mass 

producing Fruit Nibbles in August 2008, and Beech-Nut contracted for approximately

230,000 cases of the product via four signed purchase orders. These purchase orders, 

which are the only written agreements between the two parties,

1

 1 Although a draft “co-pack” agreement was negotiated, it was never consummated.

provide in part that
3

[t]he terms and conditions set forth in [these orders] constitute the entire 

agreement between the parties . . . and supersede . . . all previous verbal or written 

representations, agreements and conditions . . . [unless modified in writing and 

signed by all parties] . . . . [PIM] warrants that the goods . . . furnished under the 

[purchase orders] will comply with the specifications, are fit for the purpose 

intended, merchantable and free from defects of material and workmanship[,] and 

. . . [upon] discovery of any defect, all rejections will be returned at [PIM’s] risk 

and expense.

See, e.g., JA 293.

Beech-Nut received its first delivery of Fruit Nibbles in September 2008. After 

entering the market, the product experienced quality issues, and Beech-Nut received 

numerous complaints from consumers and retail outlets indicating that the Fruit Nibbles 

were “powdery,” “dried out,” “shriveled,” “crusty,” “rotten,” “stale,” “moldy,” “wilted,” 

had a “fermented” and “horrible” smell, “looked like dead toes,” and were generally 

“disgusting.” In December 2008, Beech-Nut instituted a nationwide recall of the product 

and accepted returns. PIM declined to accept those returns from Beech-Nut or to 

compensate it for the rejected product and costs of withdrawal from the market. PIM 

brought suit against Beech-Nut in New Jersey state court for breach of contract, breach of 

the implied covenant of good faith, and estoppel. Beech-Nut removed the case to federal 

court, and counterclaimed for breach of warranty and negligence under New York law. 

Beech-Nut moved for summary judgment on all of PIM’s claims and its own 

counterclaims. In a December 20, 2011 letter opinion, the District Court granted in part 

and denied in part Beech-Nut’s motion, concluding that, “although at least some of the 

shipped Fruit Nibbles breached PIM’s express warranties,” substantial impairment (such 

that Beech-Nut was entitled to revoke acceptance of all Fruit Nibbles) was a factual issue 
4

to be decided by a jury. The District Court dismissed PIM’s claims against Beech-Nut in 

their entirety. 

Prior to trial, the parties stipulated that, “[p]ursuant to [the] Purchase Orders, PIM 

expressly warranted that all shipped Fruit Nibbles would . . . be fit for their intended 

purpose, merchantable, and free from defects of material and workmanship,” and the 

Fruit Nibbles that were the subject of customer and retailer complaints “did not satisfy 

the warranties in the purchase orders.” JA 937-38. After a three-day trial in September 

2012, the jury concluded that PIM’s breach of its warranties substantially impaired the 

value of all the Fruit Nibbles purchased by Beech-Nut, and awarded Beech-Nut

$2,222,000 in damages. PIM has appealed, seeking to reverse the District Court’s 

summary judgment order, vacate the final judgment, and remand for a new trial. 

We review a district court’s grant of summary judgment de novo and apply the 

same standard as that court.2

 2 Here the District Court had jurisdiction under 28 U.S.C. § 1332, and we have appellate 

jurisdiction under 28 U.S.C. § 1291. 

 Doe v. Luzerne Cnty., 660 F.3d 169, 174 (3d Cir. 2011). 

Viewing all inferences in the light most favorable to the nonmoving party, a court “shall 

grant summary judgment if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a); see also Burton v. Teleflex, Inc., 707 F.3d 417, 425 (3d Cir. 2013). “We generally 

review a trial court’s decision to admit or exclude evidence for abuse of discretion.” 

United States v. Green, 556 F.3d 151, 155 (3d Cir. 2009). “[A] party is not entitled to 

pursue a new trial on appeal unless that party makes an appropriate postverdict motion in 
5

the district court.” Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 404

(2006).

The District Court correctly dismissed PIM’s claims against Beech-Nut. Among 

other things, PIM did not allege that Beech-Nut breached the terms of the purchase 

orders, which are the only enforceable contracts between the parties. 

PIM argues that the District Court erred by excluding evidence tending to indicate 

that there were no specifications as to the Fruit Nibbles’ appearance, color or texture, and 

that, as a result, the jury was asked to rule on whether PIM breached certain 

specifications without ever being told what the specifications might have been or why 

there were none. However, Beech-Nut does not argue that the Fruit Nibbles were noncompliant for being the wrong color, taste or texture, and the jury was not asked to make 

such a narrow determination; rather, it was instructed to consider the broader issue of 

whether they were merchantable or fit for their intended purpose. Given the language of 

the purchase orders that the Fruit Nibbles would be “fit for the purpose intended, 

merchantable and free from defects of material and workmanship,” and PIM’s stipulation 

that the product “did not satisfy the warranties in the purchase orders,” the District Court 

correctly found that PIM had conceded warranting merchantability and a violation 

thereof, and that arguments as to color, taste and texture were irrelevant.

The purchase orders provide that they are “the only contracts between the parties,”

that “their express terms governed the parties’ financial responsibilities for any defective 

Fruit Nibbles,” and include the express warranty already noted. PIM nonetheless 

attempted to introduce extrinsic evidence of negotiations underlying an un-ratified co-
6

pack agreement as a “course of dealing” reflecting the parties’ understanding that there 

were no warranties. The parties’ exchange of drafts and failure to agree to the terms of 

the co-pack agreement do not constitute a “sequence of previous conduct . . . fairly to be 

regarded as establishing a common basis of understanding.” N.Y. U.C.C. § 1-205(a). 

The District Court correctly found that the purchase orders were never modified, that they 

governed the rights and obligations of PIM and Beech-Nut with respect to the Fruit 

Nibbles, and that the extrinsic evidence was inadmissible.

Finally, the jury verdict should not be overturned as unsupported by the weight of 

the evidence. Given that PIM did not file post-trial motions for judgment as a matter of 

law or for a new trial before the District Court, we cannot review this claim. See 

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 404 (2006). Even if we 

could review the jury verdict, there is no indication in the record that the jury’s verdict in 

Beech-Nut’s favor was against the weight of the evidence.

For these reasons, we affirm.