Stemcor Usa, Inc. v. Trident Steel Corp.

471 F. Supp. 2d 362 (S.D.N.Y. 2006)

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Nature of the Case

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Facts

P and D entered into a series of twelve sales agreements for steel casings, or hollow steel pipe. P delivered steel casings to D. D send P purchase orders, including the basic specifications of the steel casings desired. Each purchase order included the following clause: 1. No terms or conditions, other than those stated herein, and no agreement or understanding in any way modifying the terms and conditions herein stated shall be binding upon purchaser, unless mutually agreed upon in writing. P sent two subsequent documents to D: an acknowledgment form, alternately labeled a 'Sales Contract' or a 'Sale Note,' sent prior to delivery of the goods, and a 'Sales Invoice,' sent following the delivery of goods. Each acknowledgment form included the following paragraph: This contract is made between the buyer and the seller whereby the buyer agrees to buy, and the seller agrees to sell the undermentioned goods subject to the terms and conditions as stipulated hereafter. This contract reflects in its entirety all details as agreed between the parties thereto. Any changes must be in writing and accepted by both parties. Any contract disputes are to be resolved through friendly negotiations. If no settlement can be reached, then either party may submit the dispute to arbitration as per the rules of the American Arbitration Association in New York. Some of the acknowledgment forms also altered other terms contained in D's purchase orders, including changes in the length of the payment term and minor variations in the price and the amount of steel casing to be delivered. P delivered and D failed to pay $144,690.74. D took the casings, modified them, and resold them. D’s customers sued D alleging the casings were defective. D filed third party complaints against P in each of these suits. P filed a petition to compel arbitration.