Tuteur Associates, Inc. v. Taubensee Steel & Wire Company

861 F.Supp. 693 (1994)

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Nature of the Case

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Facts

Taubensee (D) moved for summary judgment on a breach of written and oral contract action by Tuteur (P) for the failure to accept and pay for coils of steel wire. D placed a purchase order with P for 2000 tons of steel wire rod to be delivered on June 15 and July 20, 1990. P responded by sending three sales contracts dated, June 11, 1990, for 1500 tons of wire shipped from Europe around July-August 1990. Each of the sales contracts required arbitration although the purchase order did not. P shipped 3000 tons of wire to a port in Milwaukee for delivery to D. D accepted and paid for 500 tons of that shipment. Approximately 477 tons of that shipment did not meet D's specifications due to salt-water damage, but P alleges that D improperly refused 2007 tons, the balance. P sued D in Texas, but the district court ruled that there was no personal jurisdiction over D. P then filed a demand for arbitration. D filed an action in District Court to stay those proceedings, as there was no agreement to arbitrate. P's arbitration claim was dismissed under UCC 2-207(a). That decision became final and was never appealed. P now claims that it had a written contract for the delivery of 1,500 tons and an oral contract for the delivery of another 1,500 tons in its present action. D responded that those claims were precluded by issue preclusion and the Statute of Frauds and moved for a summary judgment in its favor.