United States District Court, W.D. Virginia, Roanoke Division
F. URBANSKI DISTRICT JUDGE
a contract dispute, centering on defendant Verner Science,
Inc.'s ('Verner") rejection of plaintiff Luna
Innovations Incorporated's ("Luna") shipment of
certain electronic equipment. This matter is before the court
on Verner's Amended Motion for Judgment on the Pleadings.
ECF No. 23. Verner argues that Luna has failed as a
matter of law to state a claim, because Verner made timely
objection to Luna's shipment. See ECF No. 23, at 4. For
the reasons that follow, the court converts Verner's
motion to a motion for summary judgment, and concludes that a
material factual dispute remains, which prevents the court
from granting Verner judgment as a matter of law.
Accordingly, Verner's motion, ECF No. 23, is
a "leading manufacturer of optical technologies, "
ECF No. 24, at 6, while Verner is a merchant that deals in
electronic test equipment in Taiwan, ECF No. 23, at 6. In
late 2015, Verner entered into negotiations to purchase
fiber-optic testing equipment from Luna. ECF No. 24, at 5.
Pursuant to these negotiations, on December 15, 2015, Luna
provided Verner with a price quote, identifying a price of
$119, 500.00 for the requested equipment and accompanying
software ("the Quote"). See ECF No. 1-2. The Quote
provided for a discount of $24, 500.00 (bringing the total
cost to $95, 000.00) if "the purchase order is received
by close of business 12/16/2015." Id. No
shipping date was specified.
response, Verner sent Luna a Purchase Order the next
ECF No. 1-3. The Purchase Order differed in several respects
from the Quote. It omitted the "Desktop Analysis
Software" and "Spot Scan feature" that had
been included in the Quote, and accordingly authorized a
purchase price of only $78, 000.00. Id. Moreover,
the shipping date was specified as "by advice, "
and the purchase order asked that Luna "[e]nter this
order in accordance with the prices, terms, delivery method,
and specifications listed above." Id.
and Verner continued to negotiate the terms of the sale.
During these ensuing negotiations, Luna made clear that, in
order to effectuate the sale at the discussed price,
"[it] need[ed] to ship by year end." ECF No. 24-2,
at 24, 26. Verner re-sent its Purchase Order on December 30,
2015. Id. at 24. In response, Luna sent Verner a
Sales Order. ECF No. 1-4. The Sales Order specified
that the shipping date as "on or before 01/15/2016,
" which accommodated Luna's insistence on shipment
before the end of the year. Id. Moreover, it
reincorporated the standard terms and conditions from
Luna's Quote, and asked that Verner notify Luna
immediately of any term of the Sales Order "is not
correct in any way, " so that Luna "may make the
needed corrections before [the] order is processed." LL
responded immediately, and asked that Luna "[p]lease
ship the goods by our notice, not on or before
01/15/2016." ECF No. 24-2, at 22. Luna protested,
"We need to ship your instrument today in order to meet
our year-end commitments and, therefore, in order to provide
your discount." ECF No. 3-1, at 5. Over the next day the
parties continued in this vein: Luna maintained that shipping
must take place before the New Year, and Verner was equally
adamant that shipping should be by notice. Luna offered
delayed payment terms; Verner's position did not change.
Eventually, after informing Luna that its customer "will
cancel the [Purchase Order] if we need the confirmation
today, " ECF No. 24-2, at 21, Verner offered Luna an
ambiguously worded alternative, in lieu of cancellation of
the Purchase Order: "Or you can accept return good [sic]
if there is problem with our customer." Id. at
Counterclaim, Verner clarified that it intended to inform
Luna that "acceptance of the shipment by Verner would be
by reservation of right to return." ECF No. 3, at 4.
However, Luna "understood this email to be accepting
Luna's condition that the [e]quipment had to be shipped
on December 31, 2016." ECF No. 24-1, at 4. The provision
that Luna could "accept return good, " was thought
by Luna to denote a potential return in the event of a
warranty defect-a prospect envisioned by Luna's standard
terms and conditions. Id; see ECF No. 1-2, at 3 (Section 5:
"Warranty; Restrictions on Use").
shipped the equipment on the last day of 2015. On January 4,
2016, Verner contacted Luna to request "the info
regarding if we have to return the [equipment]." ECF No.
24-2, at 20. Luna responded that any return, "would
require [a] reason/explanation." Id. at 19.
Verner received the equipment on January 20, 2016. ECF No.
24, at 10. The parties dd not correspond again until March 9,
2016, when Verner indcated that it would need to return the
equipment because Verner's customer found it unsuitable.
ECF No. 24-2, at 7. Despite Luna's warning that it would
not accept the return, Verner returned the unused equipment
to Luna. ECF No. 3, at 4.
filed suit on June 30, 2016, asking the court to require
Verner to pay the $78, 000.00 price of the equipment. ECF No.
1. On August 25, 2016, Verner filed its Answer and
Counterclaim, in which it asked for "incurred expenses
for inbound airfreight, customs clearance, outbound
airfreight charges and other costs, " incurred in
connection with returning the equipment to Luna. ECF No. 3,
February 2017, Verner filed its Amended Motion for Judgment
on the Pleadngs.ECF No. 23. Luna responded, ECF No. 24, and
the court conducted a hearing on February 28, 2017. ECF No.
12(c) of the Federal Rules of Civil Procedure allows a party
to move for judgment on the pleadings "[a]fter the
pleadings are closed." "A motion for judgment on
die pleadings pursuant to Rule 12(c) is analyzed under the
same standard as a Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss." Mendenhall v. Hanesbrands.
Inc.. 856 F.Supp.2d 717, 723 (M.D. N.C. 2012) (citing
Burbach Broad. Co. of Del, v. Elkins Radio Corp..
278 F.3d 401, 405-06 (4th Cir. 2002)).
Therefore, a motion for judgment on the pleadings
"should only be granted if, after accepting all
well-pleaded allegations in the plaintiffs complaint as true
and drawing all reasonable factual inferences from those
facts in the plaintiffs favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim entitling him to relief."
Drager v. PLIVA USA. Inc.. 741 F.3d 470, 474 (4th
Cir. 2014) (quoting Edwards v. City of
Goldsboro. 178 F.3d 231, 244 (4th Cir. 1999)); see
Booker v. Peterson Cos.. 412 Fed.App'x 615, 616
(4th Cir. 2011) ("In order to survive a motion for
judgment on the pleadings, the complaint must contain
sufficient facts 'to raise a right to relief above the
speculative level' and 'state a claim to relief that
is plausible on its face.'" (quoting Bell Atl.
Corp. v. Twombly. 550 U.S. 544, 555 (2007))).
motions to dismiss and motions for judgment on the pleadings
are not identical: '"[u]nlike on a Rule 12(b)(6)
motion ... on a Rule 12(c) motion the [C]ourt may consider
the Answer as well.'" Mendenhall. 856
F.Supp.2d at 724 (brackets and ellipsis in original) (quoting
Alexander v. City of Greensboro. No. 1:09-CV-293,
2011 WL 3360644, at *2 (M.D. N.C. Aug. 3, 2011)). "The
'factual allegations in the [A]nswer are taken as true to
the extent they have not been denied or do not conflict with
the [C]omplaint."' Id. (brackets in
original) (quoting Farmer v. Wilson Hous. Auth., 393
F.Supp.2d 384, 386 (E.D. N.C. 2004)). Moreover, "[i]n
'determining a motion for judgment on the pleadings, the
[C]ourt may consider documents incorporated by reference into
the pleadings.'" Id. (second brackets in
original) (quoting Farmer. 393 F.Supp.2d at 386).
However, "[i]f, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and
not excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided in Rule
56." A. S. Abell Co. v. Baltimore Typographical
Union No. 12. 338 F.2d 190, 193 (4th Cir. 1964) (quoting
Fed.R.Civ.P. 12(c)). The decision to exclude matters outside
the pleadings is "discretionary with the court."
the court consider matters outside the pleadings, the motion
for judgment on the pleadings may be treated as a motion for
summary judgment. Pursuant to Federal Rule of Civil Procedure
56(a), the court must "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); Celotex Corp. v.
Catrett. 477 U.S. 317, 322 (1986); Glynn v. EDO
Corp.. 710 F.3d 209, 213 (4th Cir. 2013). When making
this determination, the court should consider "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with . . . [any]
affidavits" filed by the parties. Celotex. 477
U.S. at 322. Whether a fact is material depends on the
relevant substantive law. Anderson v. Liberty Lobby.
Inc.. 477 U.S. 242, 248 (1986). "Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted." Li (citation omitted). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex. 477
U.S. at 323. If that burden has been met, the non-moving
party must then come forward and establish the specific
material facts in dispute to survive summary judgment.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp..
475 U.S. 574, 586-87 (1986).
determining whether a genuine issue of material fact exists,
the court views the facts and draws all reasonable inferences
in the light most favorable to the non-moving party.
Glynn. 710 F.3d at 213 (citing Bonds v.
Leavitt. 629 F.3d 369, 380 (4th Or. 2011)). Indeed,
"[i]t is an 'axiom that in ruling on a motion for
summary judgment, the evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor.'" McAirlaids. Inc. v. Kimberly-Clark
Corp.. No. 13-2044, 2014 WL 2871492, at *1 (4th Cir.
June 25, 2014) (internal alteration omitted) (citing
Tolan v. Cotton. 134 S.Ct. 1861, 1863 (2014) (per
curiam)). Moreover, "[credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge . . . ." Anderson. 477 U.S. at 255.
However, the non-moving party "must set forth specific
facts that go beyond the 'mere existence of a scintilla
of evidence, '" Glynn. 710 F.3d at 213
(quoting Anderson, 477 U.S. at 252), and show that
"there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party."
Res. Bankshares Corp. v. St. Paul Mercury Ins. Co..
407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson.
477 U.S. at ...