Mid-American Salt LLC v. Morris County Cooperative Pric ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-2112
____________
MID-AMERICAN SALT, LLC,
Appellant
v.
MORRIS COUNTY COOPERATIVE PRICING COUNCIL;
CLINTON TOWNSHIP; FLEMINGTON BOROUGH;
FRANKLIN TOWNSHIP (SOMERSET COUNTY); GLEN
GARDNER BOROUGH; LEBANON TOWNSHIP;
RARITAN TOWNSHIP; READINGTON TOWNSHIP;
HUNTERDON COUNTY; CITY OF CLIFRON; HALEDON
BOROUGH; HAWTHORNE BOROUGH; LITTLE FALLS
TOWNSHIP; RINGWOOD BOROUGH; WAYNE
TOWNSHIP; WEST MILFORD TOWNSHIP; WEST
MILFORD BOARD OF EDUCATION; WOODLAND
PARK BOROUGH; PASSAIC COUNTY; BERNARDS
TOWNSHIP; BERNARDSVILLE BOROUGH;
HILLSBOROUGH TOWNSHIP; MONTGOMERY
TOWNSHIP; WATCHUNG BOROUGH; WARREN
TOWNSHIP, NJ; WARREN TOWNSHIP BOARD OF
EDUCATION; SOMERSET COUNTY; ANDOVER
TOWNSHIP; BRANCHVILLE BOROUGH; BYRAM
TOWNSHIP; FRANKFORD TOWNSHIP; GREEN
TOWNSHIP; HAMBURG BOROUGH; HAMPTON
TOWNSHIP; HOPATCONG BOROUGH; TOWN OF
NEWTON; SANDYSTON TOWNSHIP; SPARTA
TOWNSHIP; STANHOPE BOROUGH; VERNON
TOWNSHIP; WANTAGE TOWNSHIP; SUSSEX
COUNTY; HILLSIDE TOWNSHIP; NEW PROVIDENCE
BOROUGH; ROSELLE BOROUGH; CITY OF SUMMIT;
TOWN OF WESTFIELD; UNION COUNTY; FRANKLIN
TOWNSHIP (HUNTERDON COUNTY),
Appellees
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-17-cv-04262)
District Judge: Hon. Susan D. Wigenton
____________
Argued October 30, 2019
Before: HARDIMAN, PHIPPS, and NYGAARD,
Circuit Judges.
(Filed: July 6, 2020)
Stephanie L. Hersperger [ARGUED]
Pion, Nerone, Girman, Winslow & Smith, P.C.
240 North 3rd Street
Payne Shoemaker Building, 10th Floor
Harrisburg, PA 17101
Frederick R. Damm
Scopelitis, Garvin, Light, Hanson & Feary, PLC
535 Griswold Street
2
Suite 1818
Detroit, MI 49266
Attorneys for Appellant Mid-American Salt, LLC
Edward J. Buzak [ARGUED]
Susan L. Crawford
The Buzak Law Group, LLC
150 River Road, Suite N4
Montville, NJ 07045
Attorney for Appellee Morris County Cooperative
Pricing Council
Richard J. Guss
DiFrancesco Bateman Coley Yospin Kunzman Davis &
Lehrer
15 Mountain Boulevard
Warren, NJ 07059
Attorney for Appellees Township of Raritan; Township
of Bernards; Borough of Watchung & Township of
Warren
Andrew P. Oddo
425 Grant Avenue
Oradell, NJ 079649
Attorney for Appellee Borough of Haledon
Jonathan Testa [ARGUED]
Dorsey & Semrau
714 Main Street
P.O. Box 228
Boonton, NJ 07005
Susan C. Sharpe
Dorsey & Semrau
3
714 Main Street
P.O. Box 228
Boonton, NJ 07005
Attorneys for Appellee Township of Little Falls;
Township of West Milford; Township of Andover &
Borough of Bloomingdale
Jonathan Testa [ARGUED]
Dorsey & Semrau
714 Main Street
P.O. Box 228
Boonton, NJ 07005
Anthony P. Seijas
Cleary Giacobbe Alfieri & Jacobs
169 Ramapo Valley Road
Upper Level 105
Oakland, NJ 07436
Attorneys for Appellee Township of Wayne
Albert C. Buglione
Buglione Hutton & DeYoe
401 Hamburg Turnpike
Suite 206
Wayne, NJ 07474
Attorney for Appellee Borough of Woodland Park
Robert B. McBriar
Schenck Price Smith & King
351 Sparta Avenue
Sparta, NJ 07871
Attorney for Appellee Borough of Hopatcong
Ursula H. Leo
4
Laddey Clark & Ryan
60 Blue Heron Road
Suite 300
Sparta, NJ 07871
Attorney for Appellee Township of Sparta
Donald A. Klein
Weiner Law Group
629 Parsippany Road
P.O. Box 438
Parsippany, NJ 07054
Attorney for Appellee Township of Wantage
Katharine A. Fina
Florio Perrucci Steinhardt & Cappelli
235 Broubalow Way
Phillipsburg, NJ 08865
Lester E. Taylor, III
Florio Perrucci Steinhardt & Fader
218 Route 17 North
Suite 410
Rochelle Park, NJ 07662
Attorneys for Appellee Borough of Roselle
Louis N. Rainone
Brian P. Trelease
Rainone Coughlin Minchello
555 U.S. Highway One South
Suite 440
Iselin, NJ 08830
Attorney for Appellee Township of Franklin
Andrew Gimigliano
5
Joshua A. Zielinski
O'Toole Scrivo Fernandez Weiner Van Lieu
14 Village Park Road
Cedar Grove, NJ 07921
Attorney for Appellee Township of Vernon
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
This appeal involves a contract dispute arising under
New Jersey law. Appellant Mid-American Salt, LLC
contracted with the Morris County Cooperative Pricing
Council to provide its members with bulk rock salt at
negotiated prices. But several of the Council’s members bought
no salt from Mid-American and others bought salt from its
competitors at lower prices. Finding itself sitting on a pile of
unsold salt, Mid-American sued the Council and almost fifty
of its members. The District Court denied Mid-American relief
and this appeal followed.
I
The Council was established in 1974 under New Jersey
law, see N.J. STAT. ANN. § 40A:11–10. It consists of over 200
New Jersey counties, municipalities, police departments, and
school districts. The Council bids, awards, and executes
contracts for products and services so its members can obtain
volume discounts. At all times relevant to this appeal, the
6
Township of Randolph served as the lead agency that managed
the Council’s affairs.
Mid-American is an Indiana limited liability company
that imports and sells bulk road salt. According to Mid-
American’s amended complaint, the Council asked its
members to estimate their rock salt needs for the 2016-17
winter. Based on those estimates, the Council issued a
comprehensive bid package in the summer of 2016, in
accordance with New Jersey law, anticipating the need for
some 115,000 tons of rock salt. See, e.g., N.J. STAT. ANN.
§ 40A:11-11; N.J. ADMIN. CODE 5:34-7.9–7.12. Mid-
American was awarded the contract the following month.
Mid-American agreed to supply bulk rock salt to the
Council’s members in accordance with the terms and prices set
forth in the contract. The bid specifications incorporated in the
contract state:
This is an Open-Ended contract, meaning all
items are specified with an estimated
quantity. There is no obligation to purchase
that quantity during the contract period, and
the actual quantity purchased by members of
the [Council] may vary.
All quantities may be more or less than
estimated. No minimum order requirements are
allowed, unless stated otherwise elsewhere.
7
App. 280 (bold in original). All parties agree that the executed
contract, including the bid package, provided only estimated
quantities of rock salt that Council members would purchase.
As required by the contract, Mid-American applied for
and obtained a performance bond in the amount of
$9,301,625.43. Based on the typical one percent fee, the bond
cost Mid-American $93,016. The bid specifications also
required Mid-American to fulfill rock salt orders within three
business days. And if Mid-American failed to fulfill any order
within five business days, members could receive
authorization to obtain the salt from another licensed dealer.
Mid-American would then be obligated to pay any difference
in cost directly to the Council member. The contract also
required Mid-American to “have adequate facilities for
handling, storing and delivering ‘treated’ rock salt.” App. 284.
In reliance on the estimates provided by the Council,
Mid-American prepared to fulfill its contract obligations. It
“imported salt from its exclusive salt mine in Mohammedia,
Morocco,” in three separate shiploads at a total cost of
$4,800,000. App. 233–34. Mid-American then contracted with
DuraPort Marine and Rail Terminal in Bayonne, New Jersey,
to stage the salt for delivery to Council members. Mid-
American paid $31,250 per month to store the salt and another
$58,962.26 to cover it with tarps. Finally, Mid-American
incurred at least another $220,000 in finance costs as well as
“additional costs to rent barges and arrange for tugs, and to
contract for trucks to deliver salt to [Council] members’
barns.” App. 234.
During the 2016–17 winter season, Council Defendants
purchased only 5,565.39 tons of rock salt, representing less
than five percent of the estimated tonnage. Mid-American also
8
claims “several” Council members “purchased salt from Mid-
American’s competitors,” who lowered their prices after Mid-
American had been awarded the contract. App. 236. For
example, one of Mid-American’s competitors (Atlantic Salt,
Inc.) “reduced its price from $68.00/ton to $57.25/ton in order
to under-bid [Mid-American’s successful] bid of $64.34/ton.”
Id.II
In June 2017, Mid-American sued the Council and
forty-nine of its members in the United States District Court
for the District of New Jersey. That same month, Mid-
American filed an amended complaint alleging three counts
against all Defendants: (1) breach of contract; (2) breach of the
covenant of good faith and fair dealing; and (3) bad faith under
Article 2 of the Uniform Commercial Code, N.J. STAT. ANN.
§ 12A:2-101, et seq.
Four sets of responses relevant to this appeal followed.
First, the Council moved to dismiss, claiming it was not a
proper party because it never had any obligation to purchase
salt. Second, the Townships of Clinton, Montgomery, and
Readington (collectively, Townships) jointly filed a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. About twenty other townships, boroughs, and cities
joined the Townships’ motion. Third, Wantage Township and
the Township of Franklin (Somerset County) each filed a
motion for judgment on the pleadings under Federal Rule of
9
Civil Procedure 12(c). Finally, seven additional townships and
boroughs filed Rule 12(c) motions.1
In February 2018, the District Court granted the
Council’s and the Townships’ motions to dismiss and the
motions for judgment on the pleadings filed by Wantage and
Franklin. The District Court found that Mid-American’s claims
failed as a matter of law because the company had no valid
requirements contract with the Council or its members. Mid-
American then filed a motion for reconsideration that included
a request for leave to amend its complaint again to add a new
claim for promissory estoppel.
In April 2018, the District Court denied Mid-
American’s motion for reconsideration and granted the
motions for judgments on the pleadings filed by the seven
Council members who had not joined in the original motions.
Mid-American filed a timely notice of appeal from both orders.
III
The District Court had diversity jurisdiction under 28
U.S.C. § 1332(a)(1) because Mid-American is a citizen of
Indiana, all Defendants are citizens of New Jersey, and the
1
Some twenty Defendants settled with Mid-American
before the District Court granted the various motions. Clinton,
Montgomery, and Readington Townships likewise eventually
settled, but the townships and boroughs who joined their
motion to dismiss did not.
10
amount in controversy exceeds $75,000.00. We have
jurisdiction under 28 U.S.C. § 1291.
IV
A threshold issue we must decide is whether the Council
is a proper party to Mid-American’s appeal. The Council filed
a motion to dismiss because it was not named in the notice of
appeal. We agree with the Council that it is not a party because
Mid-American failed to appeal a final judgment involving the
Council and evinced no intention to do so.
A
The Council argues Mid-American “neither appealed
nor intended to appeal a district court order as to [it].” Council
Br. 21. Mid-American claims it intended to appeal as to the
Council all along.
Rule 3(c)(1)(B) of the Federal Rules of Appellate
Procedure provides that a notice of appeal must “designate the
judgment, order, or part thereof being appealed.” “[A]n appeal
from a final judgment that is identified in the notice will draw
into question all non-final orders and rulings which produced
the judgment.” Polonski v. Trump Taj Mahal Assocs., 137 F.3d
139, 144 (3d Cir. 1998) (citation omitted).
We construe notices of appeal liberally because
“decisions on the merits are not to be avoided on grounds of
technical violations of procedural rules.” Id. “[L]iberal
construction does not, however, excuse noncompliance with
[Rule 3] . . . . [N]oncompliance is fatal to an appeal.” Smith v.
Barry, 502 U.S. 244, 248 (1992). And the subjective intent of
the parties is irrelevant because “the notice afforded by a
11
document, not the litigant’s motivation in filing it, determines
the document’s sufficiency as a notice of appeal.” Id.In determining whether an unspecified order is properly
part of an appeal, we are governed by Polonski. That case
instructs us to
exercise appellate jurisdiction over orders that
are not specified in the notice of appeal where:
(1) there is a connection between the specified
and unspecified orders; (2) the intention to
appeal the unspecified order is apparent; and (3)
the opposing party is not prejudiced and has a
full opportunity to brief the issues.
137 F.3d at 144.
The first and third Polonski requirements are satisfied
here. One of the April 2018 orders specified in the notice of
appeal bears a connection to the unspecified February 2018
order Mid-American asks us to review as to the Council. And
the opposing party (the Council) suffered no prejudice because
it had a full opportunity to brief the issues. Three weeks after
noticing the appeal, Mid-American identified the Council as a
party to this appeal in its Civil Appeal Information Statement
and Concise Summary of the Case. So the Council has not been
prejudiced by the delay. The only debatable question is
whether the Council was constructively made a party to this
appeal in the first place through Mid-American’s “apparent
intent.” We hold it was not.
Mid-American made clear its intention not to appeal the
unspecified order. Mid-American specifically asked the
District Court not to reconsider its order granting the Council’s
12
motion to dismiss. In a footnote to the opening paragraph of its
brief filed with its motion for reconsideration, Mid-American
stated it was “not seeking reconsideration of the Court’s grant
of the separate motion to dismiss filed by the [Council].” App.
476. Although Mid-American remained free to appeal from the
final judgment of the District Court, it chose instead to appeal
only the two April 2018 orders. In so doing, Mid-American
explicitly named all 24 defendants implicated by those two
orders. Tellingly, the Council is not among the named parties.
Mid-American now claims it intended to appeal the
earlier order as to the Council all along. But the record
indicates otherwise, suggesting a conscious decision by Mid-
American not to appeal the motion to dismiss as to the Council.
No indication of Mid-American’s hidden intention surfaces
between the April 2018 orders and the June 2018 filing of the
Civil Appeal Information Statement and the Concise Summary
of the Case. By that point, the deadline for filing a timely
appeal had already passed. So we hold the Council is not a
proper party to this appeal.
V
Turning to the merits, the first issue we must decide is
whether, under New Jersey law, a valid requirements contract
existed between Mid-American and the Council members. The
District Court found such a contract did not exist and we agree.
Because the contract lacked a binding promise from the
13
Council or its members to purchase all the salt they required, it
was illusory.
A
We review de novo the District Court’s orders granting
motions to dismiss and motions for judgment on the pleadings.
Vallies v. Sky Bank, 432 F.3d 493, 494 (3d Cir. 2006);
Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290
(3d Cir. 1988). “A motion to dismiss pursuant to Federal Rule
12(b)(6) should be granted only if, accepting as true the facts
alleged and all reasonable inferences that can be drawn
therefrom there is no reasonable reading upon which the
plaintiff may be entitled to relief.” Vallies, 432 F.3d at 494(internal quotation marks and citation omitted). And “[u]nder
Rule 12(c), judgment will not be granted unless the movant
clearly establishes that no material issue of fact remains to be
resolved and that he is entitled to judgment as a matter of law.”
Jablonski, 863 F.2d at 290 (internal quotation marks and
citation omitted). As with a motion to dismiss, we view the
facts presented and draw inferences therefrom in the light most
favorable to the nonmoving party. Id. at 290–91.
B
“To prevail on a breach of contract claim under New
Jersey law, a plaintiff must establish three elements: (1) the
existence of a valid contract between the parties; (2) failure of
the defendant to perform its obligations under the contract; and
(3) a causal relationship between the breach and the plaintiff’s
alleged damages.” Sheet Metal Workers Int’l Ass’n Local
Union No. 27, AFL-CIO v. E.P. Donnelly, Inc., 737 F.3d 879,
900 (3d Cir. 2013). And “[w]here the terms of a contract are
clear and unambiguous there is no room for interpretation or
14
construction and we must enforce those terms as written.”
Kutzin v. Pirnie, 591 A.2d 932, 936 (N.J. 1991).
At issue in this case is a “requirements contract.” Under
New Jersey law, such a contract measures quantity through
“the requirements of the buyer,” instead of through a fixed
number stated in the contract. N.J. STAT. ANN. § 12A:2-306(1).
Requirements contracts do not need a minimum or maximum
order set forth therein, but instead rely on “such
actual . . . requirements as may occur in good faith, except that
no quantity unreasonably disproportionate to any stated
estimate . . . may be tendered or demanded.” Id. The official
comment to this section further explains:
If an estimate of output or requirements is
included in the agreement, no quantity
unreasonably disproportionate to it may be
tendered or demanded. Any minimum or
maximum set by the agreement shows a clear
limit on the intended elasticity. In similar
fashion, the agreed estimate is to be regarded as
a center around which the parties intend the
variation to occur.
N.J. STAT. ANN. § 12A:2-306, Comment 3.
“[A]s a general rule, [] if it is wholly optional with one
party to a bilateral agreement whether he shall perform or not,
there is no legal contract. The promise of that party in such a
bargain is illusory.” G. Loewus & Co. v. Vischia, 65 A.2d 604,
606 (N.J. 1949). In Loewus, the New Jersey Supreme Court
considered the validity of a requirements contract for domestic
wine, instructing that
15
[i]n passing upon the validity of contracts of this
character the general rule is that it will be
presumed that the parties thereto intended to
make a binding and enforceable obligation. As
between two equally reasonable constructions,
we should adopt the one which makes the
contract valid, as against that reaching a contrary
result.
Id. at 605–06 (citations omitted). Importantly, the contract at
issue in Loewus included multiple provisions contemplating
requirements and stated that “Vischia agrees to maintain at all
times adequate equipment, staff and force of employees to
meet the requirements of Loewus.” Id. at 605. Despite these
promises, none of which is present in this case, the New Jersey
Supreme Court found no valid requirements contract existed,
largely because the buyer had agreed to purchase wine only at
“its future election.” Id. at 606.
Mid-American relies heavily on an intermediate
appellate case in New Jersey that involved a cooperative
pricing agreement for asphalt paving materials signed by the
Council. See Tilcon New York, Inc. v. MCCPC, 2014 WL
839122 (N.J. Super. Ct. App. Div. 2014). There, the Council
and fifteen of its members were alleged to have purchased too
much asphalt relative to their pre-bid estimates because of a
spike in market price for asphalt cement. The asphalt
contractors sued, seeking retroactive price increases for the
over-bid sales. Id. at *1. Council members responded that they
were “not obliged to purchase asphalt” under the contract,
essentially rendering the contract illusory. Id. at *26. Although
the court ultimately ruled for the Council members, it found
that a valid requirements contract existed. Id. In so doing, the
court interpreted Section 5:34-7:11(d) of the New Jersey
16
Administrative Code as requiring Council members who
submitted pre-bid estimates to purchase asphalt consistent with
the specifications of the contract. Id. at *26 n.22. The pertinent
code section reads, in relevant part: “Registered members who
submit estimates shall not issue orders and contractors shall not
make deliveries, that deviate from the specifications or price as
set forth in the master contract.” N.J. ADMIN. CODE § 5:34-
7.11(d).
The Council responds to Tilcon with a contrary
administrative law decision. See Bd. of Educ. of the Twp. of
Sparta, Sussex County v. Bd. of Educ. of the Twp. of Byram,
Sussex County, 2011 WL 1843970, at *14 (N.J. Admin. 2011).
In that case, a New Jersey Administrative Law Judge opined
that cooperative pricing councils allow the lead agency to
“essentially [provide] the members of the cooperative pricing
system the availability of prices for specified items based upon
its having carried out the advertising and bid procedures
required by the Local Public Contracts Law.” The ALJ noted
that, as a member of the Council, “Sparta was not required to
purchase a specific quantity or all of its fuel oil needs from
Finch Fuel, but had the option to purchase as little or as much
fuel oil as it wanted.” Sparta, 2011 WL 1843970, at *3.
Because Sparta and Tilcon cannot be reconciled and they
include some dissimilar facts to this appeal, New Jersey
caselaw does not answer the question presented.
The Council members argue they entered into a valid,
binding contract with Mid-American. Under the contract
terms, Mid-American was required to provide bulk road salt to
the members as needed. Yet the Council members claim no
corresponding requirement existed for any of them to purchase
a single pound of salt from Mid-American. In their view, the
agreement is essentially an options contract.
17
Mid-American counters that the contract must be read
to require Council members who submitted estimates to
purchase all their salt needs from Mid-American. On this
reading, the contract’s final quantity-variation provision
relieves a member with no salt needs of any obligation to
purchase. But that does not mean, Mid-American says, that
members remain free to purchase salt from Mid-American’s
competitors at discounted prices.
Neither the general terms of the contract nor the specific
provision Mid-American relies on support its position. Found
in bold in the bid specifications, the quantity-variation
provision reads: “There is no obligation to purchase that
quantity [referring to the estimates] during the contract
period, and the actual quantity purchased by members of
the [Council] may vary.” App. 280. Citing the explicit
statement “that defendants had ‘no obligation to purchase’
during the contract period,” the District Court observed that
“[Mid-American’s] own pleadings and the unambiguous
language of the contract” contradicted Mid-American’s
contention that there was an implicit promise to purchase
certain amounts of salt. App. 10. We agree.
Mid-American reminds us that when faced with “two
equally reasonable constructions” of a contract, New Jersey
law requires us to adopt the construction that renders the
contract valid. Loewus, 65 A.2d at 606. But we do not face two
such constructions here because Mid-American’s construction
of the contract is not “equally reasonable” to the Council’s.
Unlike the contract at issue in Loewus, this contract does not
clearly state that it is for “requirements.” Nor does it mention
the word “exclusive,” which is another hallmark of a
requirements contract. See N.J. STAT. ANN. § 12A:2-306. The
absence of these fundamental attributes of a requirements
18
contract, when combined with the Council members’ promise
to buy salt in such quantities “as may be desired” or as they
“may want,” compels us to hold that the contract is illusory.
See Loewus, 65 A.2d at 606.
The dissent urges us to hold that under New Jersey law
“a promise to pay for estimated quantities of required materials
is enforceable.” Dis. Op. at 1 (emphasis added). We do not
contest this formulation of New Jersey law. But we disagree
with the dissent’s repeated assertions that “[C]ouncil members
promised to pay for quantities required” in this case. Dis. Op.
at 2. Neither the Council nor its members made such a promise
anywhere in the contract.
In concluding that an enforceable promise exists here,
the dissent relies on the estimated quantities incorporated into
the bid proposal along with two paragraphs in “Contract #3:
Rock Salt & Liquid Calcium Chloride.” Dis. Op. at 8–10; see
App. 407–08. It cites Paragraph 5 of Contract #3 to support its
conclusion that “[C]ouncil members agreed to pay for the rock
salt provided by Mid-American.” Dis. Op. at 9. But this
paragraph does not contain a promise to purchase
requirements. In full it states:
Members of the MCCPC agree to pay
Contractor for said work and/or materials when
completed or delivered, as the case may be, in
accordance with the said specifications and
Contractor’s proposal and within the time stated
for the actual quantity of authorized work done
under each item scheduled by the proposal, or for
quantities required, at the respective unit prices
bid therefore by the Contractor.
19
App. 408 (Contract #3 ¶ 5) (emphasis added). This paragraph
contemplates payment based either on the “actual quantity of
authorized work done” or for “quantities required.” Id. In this
case, Council members placed few orders for rock salt and they
paid according to the “actual quantity” of salt purchased. The
language of this paragraph expressly allows for such a scenario
through the use of the disjunctive “or.” It likewise bears
repeating that the referenced bid specifications and proposal
nowhere state that a requirements contract is being formed.
The dissent’s argument that the use of “or” in Paragraph
5 is not “fatal to enforceability,” Dis. Op. at 12, is beside the
point. In urging us to interpret that Paragraph as providing
options for calculating payment amount, the dissent essentially
claims that since a requirements contract already exists here,
the payment amount is calculated based on the “quantities
required” provision. Id. (“But if the contract is for
requirements, then the payment amount will be determined by
‘unit bid prices.’”) (citation omitted). This interpretation is
inconsistent with the dissent’s own reliance on this very same
paragraph to establish that a requirements contract exists in the
first place. See Dis. Op. at 9–10 (citing Paragraph 5).2
2
The only other reference to requirements is Paragraph
3 of Contract #3, which discusses Mid-American’s obligations
under the contract—not the Council members. See App. 407
(Contract #3 ¶ 3) (“The contractor will furnish said material
required as stated in the bid proposal at anytime during the term
of the Contract . . . .”). This provision did not create a
requirements contract for two reasons. First, the referenced bid
20
Finally, we note these are sophisticated parties capable
of entering into precisely the kind of contract they desire. It
would have been easy to, for example, insert a simple provision
stating, “This is a contract for rock salt requirements and the
Council covenants to purchase (and pay for) its rock salt
requirements from the Contractor.” Even merely titling this a
“Requirements Contract” would have indicated to us that a
requirements contract was, in fact, being formed. But that is
not the contract we have before us and we will not rewrite the
bargain for the parties.
In sum, neither the Council nor its members ever
promised to purchase from Mid-American all the rock salt they
required. And their promise to pay for any rock salt they might
have purchased—a rather obvious proposition—does not
oblige them to actually purchase anything. Nor can the implied
covenant of good faith and fair dealing, see Dis. Op. at 5 (citing
Sons of Thunder, Inc. v. Borden, Inc., 690 A.2d 575 (N.J.
1997)), supply a promise that was never made. Because Mid-
American promised to supply rock salt requirements to the
Council and its members without obtaining a corresponding
promise in return, we hold that the contract is illusory.
proposal does not contain a promise to purchase requirements
and expressly disclaims any intention to bind Council members
to estimates “as stated in the bid proposal.” Id. Second, we
agree that the contract obligated Mid-American to provide rock
salt at the Council members’ request. But the lack of a
corresponding promise by the Council or its members to
purchase its rock salt requirements from Mid-American is what
makes the contract illusory.
21
VI
Finally, we must decide whether the District Court
properly denied Mid-American’s motion for reconsideration.
In that motion, Mid-American also requested leave to amend
its complaint to include a promissory estoppel claim.
A
We review the District Court’s order denying a motion
for reconsideration for abuse of discretion. N. River Ins. Co. v.
CIGNA Reins. Co., 52 F.3d 1194, 1203 (3d Cir. 1995). The
same standard applies to our review of the order denying Mid-
American’s motion to amend its complaint. Lake v. Arnold,
232 F.3d 360, 373 (3d Cir. 2000).
B
In denying the motion for reconsideration, the District
Court also denied Mid-American’s request for leave to amend
its complaint. Mid-American had requested leave to include a
claim for promissory estoppel. It admits that it “arguably
should have filed a separate motion to amend,” but nonetheless
claims its request was improperly denied. Mid-American Br.
55 n.14.
Motions for reconsideration exist to “correct manifest
errors of law or fact or to present newly discovered evidence.”
Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).
Amendments to pre-trial pleadings that do not qualify for
amendment as a matter of course are governed by Rule 15(a)(2)
of the Federal Rules of Civil Procedure. These amendments
require leave from the court, which “should freely give leave
when justice so requires.” FED. R. CIV. P. 15(a)(2). “[A] district
22
court must permit a curative amendment unless such an
amendment would be inequitable or futile,” particularly where
“a complaint is vulnerable to 12(b)(6) dismissal.” Phillips v.
Cty. of Allegheny, 515 F.3d 224, 236, 245 (3d Cir. 2008)
(citation omitted).
In its denial of leave to amend, the District Court noted
that “[r]econsideration motions . . . may not be used
to . . . raise arguments or present evidence that could have been
raised prior to the entry of judgment.” App. 16 (citing NL
Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513,
516 (D.N.J. 1996)). It concluded that as a “sophisticated
business entity with competent counsel,” Mid-American chose
not to raise a claim for promissory estoppel in its complaint.
Id. Mid-American was thus precluded from using its later
motion for reconsideration to advance that claim. Id.The District Court was correct to conclude that a motion
for reconsideration was the improper vehicle for Mid-
American’s request for leave to amend. Mid-American had
ample opportunity to request leave to assert a claim for
promissory estoppel prior to the entry of judgment, but decided
not to. It was precluded from later seeking to advance that
claim through a motion for reconsideration after a final
judgment. See Wolfington v. Reconstructive Orthopaedic
Assoc. II PC, 935 F.3d 187, 210 (3d Cir. 2019) (holding that
seeking leave to amend a complaint after judgment would
require also moving to set aside the judgment under Rules
59(e) or 60).
Even had Mid-American properly requested leave to
assert a claim for promissory estoppel, such a claim would
have been futile. We have held the contract illusory, so the
Council members never made a “clear and definite promise” to
23
purchase any salt from Mid-American. Toll Bros., Inc. v. Bd.
of Chosen Freeholders of the Cty. of Burlington, 944 A.2d 1,
19 (N.J. 2008) (citation omitted). The District Court did not err
when it denied Mid-American leave to amend its complaint.
* * *
In sum, no valid requirements contract for bulk rock salt
existed here because the contract was illusory. And because
Mid-American’s proposed new cause of action was
procedurally improper and futile in any event, the District
Court did not abuse its discretion in denying Mid-American’s
motion for reconsideration. We will affirm the orders of the
District Court.
24
PHIPPS, Circuit Judge, dissenting.
This case hinges on a question of state substantive law:
whether a promise to pay for estimated quantities of required
materials is enforceable. In interpreting New Jersey law,1 the
Majority Opinion holds that such a promise does not suffice to
form a requirements contract. Instead, the Majority Opinion
conditions the enforceability of a requirements contract on an
express promise to purchase – not merely to pay for –
requirements. I disagree and believe that when a promise to
pay for requirements is accompanied by estimated quantities
of required materials, New Jersey law recognizes the formation
of a binding requirements contract.
Here, several New Jersey counties and municipalities,
as members of a cooperative pricing council, solicited bids to
supply their annual rock salt needs, and they provided
estimates of their annual rock salt requirements. Mid-
American Salt LLC submitted a bid, and the council awarded
a contract to Mid-American. Through that contract, which
incorporated the council members’ estimates of their rock salt
1
As a case filed in New Jersey federal court premised on
diversity jurisdiction, New Jersey’s choice-of-law rules
determine governing substantive law. See Liggon-Reading v.
Estate of Sugarman, 659 F.3d 258, 262 (3d Cir. 2011) (citing
Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)); Chin v.
Chrysler LLC, 538 F.3d 272, 278 (3d Cir. 2008). Under those
rules, parties to a contract may specify the substantive law that
will govern their agreement. See Collins v. Mary Kay, Inc.,
874 F.3d 176, 183-84 (3d Cir. 2017). And here, the parties
agreed to “be governed by the laws of the State of New Jersey.”
General Conditions and Instruction to Bidders (JA306).
requirements, Mid-American promised to furnish the council
members with their rock salt requirements, and the council
members promised to pay for quantities required.
The Majority Opinion views the council members’
promise to pay for rock salt as imposing no obligation on them
to purchase their required rock salt from Mid-American. But
as I see it, the council members’ good faith estimates of their
rock salt needs, coupled with their promise to pay for quantities
required, obligated them to purchase rock salt from Mid-
American in quantities reasonably proportionate to the
estimates. Because the council members did not do so, I would
reverse the District Court’s judgment dismissing Mid-
American’s three-count complaint against the council and its
members.
I. Under New Jersey Law, a Promise to Pay for
Estimated Quantities of Required Materials Is
Enforceable.
Not all promises are enforceable. See E. Allan
Farnsworth, Contracts 12 (2d ed. 1990) (“No legal system has
even been reckless enough to make all promises
enforceable.”). For a promise to be enforceable, there must be
consideration. See Martindale v. Sandvik, Inc., 800 A.2d 872,
878 (N.J. 2002) (“Basic contract principles render a promise
enforceable against the promisor if the promisee gave some
consideration for the promise.”).2 In relying on the
2
See also Shebar v. Sanyo Business Sys. Corp., 544 A.2d 377,
383 (N.J. 1988) (describing consideration as an “essential
requirement” of a contract); Kilborn v. Pyne, 279 F. 864, 866
2
Restatement (Second) of Contracts, the New Jersey Supreme
Court has defined consideration as having a procedural
component (bargaining) and a substantive component (an act,
forbearance, or other alteration of a legal relationship):
The essential requirement of
consideration is a bargained-for exchange of
promises or performance that may consist of an
act, a forbearance, or the creation, modification,
or destruction of a legal relation. If the
consideration requirement is met, there is no
additional requirement of gain or benefit to the
promisor, loss or detriment to the promisee,
equivalence in the values exchanged, or
mutuality of obligation.
Shebar, 544 A.2d at 383 (citations omitted); see also
Martindale, 800 A.2d at 878; Restatement (Second) of
Contracts § 71 (October 2019 update).
The adequacy of consideration poses a question of some
depth in the context of a requirements contract. Such a contract
traditionally involves a promise to purchase all specified goods
or services required for a certain period at a certain price.3
(3d Cir. 1922) (“A promise without consideration is not
enforceable.”).
3
See generally Black’s Law Dictionary 1468 (4th ed. 1968)
(defining a “requirement contract” as “a contract in writing in
whereby one agrees to buy, for a sufficient consideration, all
of the merchandise of a designated type which the buyer may
require for use in his own established business”).
3
Although such contracts are unquestionably bargained for, the
issue is whether that promise is substantive or illusory.4 As
this Circuit once observed about requirements contracts, albeit
in the context of Pennsylvania law, without a duty of good
faith, the buyer’s promise is generally illusory because “the
buyer in a requirements contract has no duty to have any
requirements.” Fort Wayne Corrugated Paper Co. v. Anchor
Hocking Glass Corp., 130 F.2d 471, 473 (3d Cir. 1942).
At common law, New Jersey was similarly hesitant to
recognize the enforceability of requirements contracts due to
concerns about the absence of adequate consideration. Most
notably, the New Jersey Supreme Court in G. Loewus & Co. v.
Vischia, 65 A.2d 604 (N.J. 1949), held that a requirements
contract that lacked “a reasonably accurate estimate” of the
supplies needed was not enforceable. Id. at 606. There, a wine
distributor agreed with a winery “to place orders . . . from time
to time for such wine as it may require under labels bearing
brand or trade names which are its exclusive property.” Id. at
604-05 (emphasis added). Without an estimated-quantity
provision, the New Jersey Supreme Court held that the
winery’s promise to place orders for required quantities did not
constitute adequate consideration because it was “left to
depend for its very existence upon its future election.” Id. at
606.
4
See generally 2 Corbin on Contracts § 5.28 (“If what appears
to be a promise is an illusion, there is no promise . . . Such an
illusory promise is neither enforceable against the one making
it, nor is it operative as a consideration for a return promise.
Thus, if there is no other consideration for a return promise, the
result is that no contract is created.”).
4
Subsequently, in 1961, New Jersey adopted a modified
version of the Uniform Commercial Code, which refined the
consideration needed for requirements contracts. See N.J. Stat.
Ann. § 12A:2-306(1). Under the now-governing statutory
provision, the enforceability of a requirements contract rests on
a duty of good faith:
A term which measures the quantity by …
the requirements of the buyer means such actual
. . . requirements as may occur in good faith,
except that no quantity unreasonably
disproportionate to any stated estimate or in the
absence of a stated estimate to any normal or
otherwise comparable prior … requirements may
be tendered or demanded.
Id. (emphasis added); see also id. § 12A:1-201(b)(20)
(defining “good faith” generally as meaning “honesty in fact
and the observance of reasonable commercial standards of fair
dealing”); Sons of Thunder, Inc. v. Borden, Inc., 690 A.2d 575,
587 (N.J. 1997) (“[E]very contract in New Jersey contains an
implied covenant of good faith and faith dealing.”).
Under that formulation, the duty of good faith acts as a
ballast to steady an otherwise uncertain promise so that a
requirements contract does not lack adequate consideration.5
5
See 2 Corbin on Contracts § 6.5 (“Under a requirements
contract, the buyer retains a great deal of discretion as to the
quantity ordered but the discretion must be exercised in good
faith. The obligation of good faith is a limit on the buyer’s
freedom of action and prevents the promise to buy from being
illusory.”).
5
As explained by the official statutory comments, which carry
persuasive force under New Jersey law,6 a requirements
contract is enforceable because “the party who will determine
quantity is required to operate his plant or conduct his business
in good faith and according to commercial standards of fair
dealing in the trade so that his . . . requirements will
approximate a reasonably foreseeable figure.” See N.J. Stat.
Ann. § 12A:2-306 cmt. 2. Thus, due to the implicit duty of
good faith, requirements contracts are enforceable in New
Jersey.
But nothing about New Jersey’s statutory formulation
suggests that the identification of estimated quantities of
required materials has gone from the missing ingredient for
adequate consideration, see G. Loewus, 65 A.2d at 606, to
illusions. To the contrary, estimated quantities of required
materials enhance the adequacy of consideration consistent
with the duty of good faith because those estimates serve as
benchmarks for assessing breach: “the agreed estimate is to be
regarded as a center around which the parties intend the
variation to occur.” N.J. Stat. Ann. § 12A: 2-306 cmt. 3; see
generally Melvin Aron Eisenberg, The Principles of
Consideration, 67 Cornell L. Rev. 640, 640 (1982) (positing
that “theories of enforceability must focus heavily on
appropriate measures of damages”).
Although sparse, subsequent New Jersey judicial and
administrative decisions do not diminish the significance of
estimated quantities in requirements contracts. The most
recent and on-point case, an unreported decision from the
6
See, e.g., Ramirez v. Autosport, 440 A.2d 1345, 1349 (N.J.
1982).
6
Appellate Division of the New Jersey Superior Court, held that
a requirements contract containing estimated quantities was
enforceable. See Tilcon N.Y., Inc. v. Morris Cty. Coop. Pricing
Council, 2014 WL 839122 (N.J. Super. Ct. App. Div. Mar. 5,
2014). In construing that contract for estimated quantities of
asphalt, that decision held that “implicit in [the] submission of
estimates was a promise to purchase amounts approximately
equal to those estimates.” Id. at *27.
Even decisions finding promises unenforceable do not
negate the importance of estimated quantities. In one case, the
parties agreed to price terms for the delivery of concrete for a
specific construction project. See Loizeaux Builders Supply
Co. v. Donald B. Ludwig Co., 366 A.2d 721, 723 (N.J. Super.
Ct. Law Div. 1976). But the purchaser did not identify
estimated quantities of concrete. See id. at 723-24. Nor did
the purchaser promise to buy the concrete required for the job.
See id. at 723. In holding that such an arrangement was not a
binding contract, the Superior Court did not touch upon, much
less disturb, the principle that estimated quantities add
dimension to otherwise uncertain promises for requirements.
The unreported administrative ruling cited by the
Majority Opinion does not call into doubt that principle. See
Bd. of Educ. of the Twp. of Sparta, Sussex, Cty., v. Bd. of Educ.
of the Twp. of Byram, Sussex Cty., 2011 WL 1843970 (N.J.
Admin. May 13, 2011). That decision refused to enforce a joint
purchasing agreement between school districts for fuel oil. Id.
at *3, 20. But the primary reasons for that outcome had nothing
to do with estimated quantities of required fuel oil. See id. at
*18. Rather, the contract was unenforceable because the lead
contracting agency “failed to create and register a cooperative
purchasing system,” and that agency “did not prepare and enter
into a written joint purchasing agreement . . . in accordance
7
with the statutory and regulatory requirements.” Id. As a
tertiary rationale, the administrative ruling relied on the
correspondence between the parties that did not identify
required quantities of fuel oil but instead listed only the “size
and number of [the] fuel oil tanks.” Id. at *19. The
identification of nothing more than storage capacity differs
significantly from a specific estimate of annual quantities of
required materials.
From these authorities, I interpret New Jersey law as
allowing parties to form an enforceable requirements contract
through an identification of estimated quantities of required
materials, together with promises to furnish and pay for
requirements.
II. The Council Members’ Promise to Pay for
Estimated Quantities of Required Rock Salt Is
Enforceable.
The members of the cooperative pricing council entered
a binding contract for their rock salt requirements. As part of
their bid specifications, the council members provided
estimated quantities of “Bulk Rock Salt, Delivered by Truck,
Unloaded by Bidder.” Bid Specifications at 3, 9-13 (JA282,
288-92); see also Notification of Award at 2 (JA414).7 For
7
See N.J. Admin Code § 5:34-7.2 (defining a “cooperative
pricing system” as “a purchasing system in which a local
contracting unit advertises for bids and awards a master
contract to a successful vendor for its own quantities and the
estimated quantities submitted by the individual registered
members” (emphasis added)); see generally N.J. Stat. Ann.
§ 40A:11-11(5) (providing for cooperative pricing systems).
8
purposes of awarding the contract on a county-by-county basis,
those estimated quantities were aggregated into bid proposals
at the county level, to achieve lower prices through a volume
discount.8 From those estimates, Mid-American submitted a
qualifying bid, and the council awarded it a contract to deliver
bulk rock salt to council members within five counties. The
contract memorialized Mid-American’s promises to furnish
the required materials as estimated by the council members’
bid proposals:
[Mid-American] will furnish said
material required as stated in the bid proposal at
anytime during the term of the Contract.
Contract #3: Rock Salt & Liquid Calcium Chloride ¶ 3 (JA407)
(emphasis added). In return, the council members agreed to
pay for the rock salt provided by Mid-American in fulfillment
of those requirements:
[Council members] agree to pay [Mid-
American] for said work and/or materials when
completed or delivered, as the case may be . . .
8
See Tilcon, 2014 WL 839122, at *27 (“The underlying goal
of the statute authorizing cooperative pricing systems is to
enable local governments to obtain favorable prices by pooling
their purchasing power and securing prices that reflect quantity
discounts and sellers’ economies of scale. Potential bidders
would be less likely to offer quantity-based discounts if
members could submit estimates, but avoid the contract price
of goods entirely if market prices fell, and enforce the contract
price if market prices rose.”).
9
for quantities required, at the respective unit
prices bid therefore by [Mid-American].
Id. ¶ 5 (JA 408) (emphasis added).
But after that award, council members in those counties
bought either no rock salt from Mid-American or amounts
dramatically less than the quantities estimated. Collectively,
the council members in those counties purchased less than 5%
of the estimated combined total of bulk rock salt from Mid-
American.
On these allegations, Mid-American’s complaint should
not have been dismissed. Mid-American plausibly alleges
adequate consideration – a bargained-for exchange of
enforceable promises. The parties bargained for the rock salt
contract through a formal process. The council members
published a bid package, which included a notice to bidders, an
invitation to bid, bid specifications, and bid proposals
containing estimated quantities of rock salt. Mid-American
submitted a bid, and the council issued a formal notice of award
to Mid-American. Then Mid-American and the council signed
a contract for rock salt. That contract incorporated the council
members’ estimates and contained Mid-American’s promise to
furnish the council members’ rock salt requirements, which
they would request through purchase orders. Finally, and most
relevant here, the contract included the council members’
promise to pay for the rock salt they received from Mid-
American. In this context, in which council members
submitted estimated quantities of their annual rock salt needs
and Mid-American promised to meet those needs, the council
members’ promise to pay for the rock salt furnished by Mid-
American should be enforceable.
10
Thus, unlike the Majority Opinion, I understand the
parties to have formed a binding requirements contract. That
agreement obligated council members, consistent with the duty
of good faith, to purchase quantities of rock salt reasonably
proportionate to their estimates. Because they did not, Mid-
American should have been permitted to proceed with its three-
count complaint and pursue, among other things, damages for
purchase amounts that were “unreasonably disproportionate”
to the council members’ estimates. N.J. Stat. Ann. § 12A: 2-
306(1).
III. No Other Provisions of the Contract Render It
Unenforceable.
In reaching a different conclusion, the Majority Opinion
relies primarily on the absence of express promise by the
council members to purchase their required rock salt from
Mid-American. Maj. Op. at 19. The Majority Opinion also
relies on two components of the council members’ bid
specifications: the no-minimum-order clause and the quantity-
variation provisions. I see it differently.
A. The Promise to Pay for Requirements, When
Accompanied by Estimated Quantities, Is
Enforceable.
The Majority Opinion refuses to enforce this contract
because it “does not contain a promise to purchase
requirements.” Maj. Op. at 19. That is the nub of our
disagreement. The Majority Opinion insists that a
requirements contract must contain an express promise to
purchase requirements. But as I understand New Jersey law,
due to the centrality of the duty of good faith, a promise to pay
for requirements becomes enforceable when it is accompanied
11
by estimated quantities of required materials. See G. Loewus,
65 A.2d at 606; Tilcon, 2014 WL 839122, at *27. Both a
promise to pay for requirements and an identification of
estimated quantities are present here. See Contract #3: Rock
Salt & Liquid Calcium Chloride ¶¶ 3, 5 (JA407-08). And
because that promise resulted from a bargaining process in
which Mid-American promised to furnish requirements, I
believe that the parties entered an enforceable requirements
contract.
Nor is the disjunctive ‘or’ in the pay-for clause fatal to
enforceability. Cf. Maj. Op. at 20. The options in that clause
relate to different methods for calculating payment amount. If
the contract specifies the quantity supplied, then the payment
amount will be “in accordance with the said specification and
the Contractor’s proposal.” Contract #3: Rock Salt & Liquid
Calcium Chloride ¶ 5 (JA408). But if the contract is for
requirements, then the payment amount will be determined by
“unit bid prices.” Id. Tellingly, the contract with Mid-
American uses exclusively unit pricing – in further
confirmation that it is a requirements contract. See Notice of
Award at 2 (JA414) (specifying unit prices for Category I Bulk
Rock Salt). But especially under New Jersey’s presumption in
favor of contract formation,9 any perceived ambiguity in this
9
See Silverstein v. Keane, 115 A.2d 1, 6 (N.J. 1955) (“The
general rule of construction of contracts pertinent to
[questions involving mutuality of obligation] is that it will be
presumed that the parties thereto intended to make a binding
and enforceable obligation and as between two equally
reasonable constructions the court should adopt the one which
makes the contract valid as opposed to one reaching a
contrary result.” (citing G. Loweus, 65 A.2d at 604)); see also
12
clause should not obliterate the enforceability of this
bargained-for agreement.
B. The No-Minimum-Order Clause Does Not
Negate Consideration.
The contract does not contain a specific delivery
schedule for rock salt, but that does not destroy its
enforceability. Instead of a delivery schedule, the contract sets
forth a process for buying rock salt through individual purchase
orders. See Contract #3: Rock Salt & Liquid Calcium Chloride
¶ 3 (JA407) (“Members of the MCCPC may purchase items
pursuant to the Contract by issuance of purchase orders.”).
Submission of a purchase order imposes certain obligations on
Mid-American, such as delivery location10 and delivery time,11
2 Corbin on Contracts § 5.28 (“The tendency of the law is to
avoid the finding that no contract arose due to an illusory
promise when it appears that the parties intended a
contract.”).
10
Bid Specifications at 1 (JA280) (“Delivery locations shall
be to participating members of the MCCPC as specified at the
time of ordering.”).
11
Id. (“Delivery for all categories is to be made to the members
of the MCCPC within three (3) business days of receipt of
order. . . .”).
13
as well as consequences for failing to make the delivery as
specified.12
The no-minimum-order clause is a critical feature of the
purchase-order process. That clause generally prohibits Mid-
American from imposing a minimum order requirement on
council members: “No minimum order requirements are
allowed, unless stated otherwise elsewhere.” Bid
Specifications at 1 (JA280). Through that provision, the
members of the cooperative pricing council have flexibility to
submit individual purchase orders in any amount (unless
otherwise specified), but the clause does not release them from
their estimated annual totals.
The operation of this clause can be explained through
example. Suppose, for instance, that a council member
estimated a delivery amount of 100 tons of rock salt for the
year. Through the no-minimum order clause, unless the
contract provided otherwise, that member could reach that total
through five deliveries of twenty tons, ten deliveries of ten
tons, a hundred deliveries of one ton, or any other combination.
But that flexibility for each individual order would not absolve
a council member of its obligation to purchase an estimated
annual total of 100 tons of rock salt.
12
Id. at 1-2 (JA280-81) (“Scheduled deliveries must be
adhered to or rescheduled by 3:00 p.m. the day before the
scheduled delivery[,] [or Mid-American shall face] [a] ten
percent (10%) penalty of the total order. . . [F]ailure to accept
orders and/or failure to comply with delivery requirements
three (3) or more times shall constitute an act of default. . . .”).
14
The Majority Opinion interprets the no-minimum-order
clause to mean that the council members do not need to make
any purchases throughout the year. See Maj. Op. at 18
(interpreting the non-minimum-order clause as “reliev[ing] a
member with no salt needs of any obligation to purchase”). But
the no-minimum-order clause and the promise to purchase
estimated annual quantities are separate terms. I therefore
disagree with the Majority Opinion and point out two
additional concerns.
In my view, the Majority Opinion places undue
significance on the no-minimum-order clause – so much so that
the clause would overtake promises to purchase fixed
quantities of rock salt. Suppose the same agreement except
that the council members agreed to purchase exact quantities
of rock salt. Would the no-minimum-order clause also render
that agreement illusory? No, it would not. The process for
submitting individual purchase orders is distinct from an
obligation to purchase annual quantities. Yet under the
Majority Opinion, a no-minimum-order clause, even in a
contract specifying fixed annual quantities, would render the
contract unenforceable. I find no support in New Jersey law
for that unsettling proposition.
I also do not see the Majority Opinion as accounting for
the contract’s specified exception to the no-minimum-order
clause. Mid-American cannot impose minimum order
requirements “unless stated otherwise elsewhere.” Bid
Specifications at 1 (JA280). But this contract stated – through
the council members’ own bid specifications – that the
minimum order for delivered bulk rock salt was 25 tons.13 If
13
See Bid Specifications at 3 (JA282) (“Deliveries must be
made in truckloads of 25 tons or more.); see also Bid Proposal
15
nothing else, under the Majority Opinion’s reasoning, that 25-
ton minimum order amount should be enforceable.
For these reasons, I disagree with the Majority
Opinion’s reading of the no-minimum-order clause.
C. The Quantity-Variation Provisions Do Not
Undermine Consideration.
In holding that the council members’ promise is
illusory, the Majority Opinion relies heavily on the contract’s
quantity-variation provisions. Those all reinforce the same
principle, i.e., that the annual required quantities are estimates:
 This is an Open-Ended contract, meaning
all items are specified with an estimated
quantity.
 There is no obligation to purchase that
quantity during the contract period, and
the actual quantity purchased by
members of the MCCPC may vary.
 All quantities may be more or less than
estimated.
Form for Hunterdon County at 1 (JA321), (specifying that rock
salt was to be delivered by truck “in 25 ton lots”); Bid Proposal
Form for Passaic County at 1 (JA327) (same); Bid Proposal
Form for Somerset County at 1 (JA330) (same); Bid Proposal
Form for Sussex County at 1 (JA333) (same); Bid Proposal
Form for Union County at 1 (JA336) (same).
16
Bid Specifications at 1 (JA280) (emphasis added). And as I
understand New Jersey law, the presence of estimated
quantities does not weaken but instead enhances the
enforceability of a requirements contract. See G. Loewus,
65 A.2d at 606; Tilcon, 2014 WL 839122, at *27.
The first quantity-variation term, the open-ended
provision, does not undermine enforceability. If promises for
open-ended required quantities were fatal to enforceability,
then all requirements contracts would be illusory. See
generally 2 Corbin on Contracts § 6.5 (“In a requirements
contract, the quantity term is not fixed at the time of
contracting.”). But that is not the rule in New Jersey, where an
open-ended promise for requirements, coupled with the duty of
good faith, see N.J. Stat. Ann. § 12A:2-306(1), or even with “a
reasonably accurate estimate” of the quantity to be purchased,
G. Loewus, 65 A.2d at 606, may constitute adequate
consideration.
The next provision – which underscores that council
members need not purchase the quantities estimated – similarly
does not reflect a phantom promise as the Majority Opinion
suggests. See Maj. Op. at 18-19 (characterizing “the Council
members’ promise” as a promise “to buy salt in such quantities
‘as may be desired’ or as they ‘may want’”).14 That clause
14
See also 2 Corbin on Contracts § 6.5 (“[In a requirements
contract], the buyer’s promise is not illusory and it is, if
bargained for, consideration for a return promise. It is not a
promise to buy all that the buyer wishes or may thereafter
choose to order. The amount is not left exclusively to the will
of the promisor . . . [Instead,] [the contract] states a limitation
17
makes clear that the estimated quantities are just that:
estimates, as opposed to fixed, certain amounts. If anything,
this clause’s reference to “actual quantity purchased,”
evidences the understanding that council members would
purchase some actual quantity of rock salt. Certainly, a
promise to purchase actual quantities is not an illusion.
The same holds true for the final quantity-variation
provision that “[a]ll quantities may be more or less than
estimated.” Particularly in light of the duty of good faith, that
clause presupposes the purchase of some non-zero quantity of
rock salt. And if the promise were merely an illusion, then that
clause would have stated that ‘there is no obligation to make
any purchase’ – not that “all quantities” purchased may vary.
***
Under New Jersey substantive law, a promise to pay for
an estimated quantity of a required materials is enforceable.
The contract at issue contained such a promise, and thus Mid-
American’s lawsuit should not have been dismissed.15
upon the promisor’s future liberty of action. The promisor no
longer has an unlimited option.”).
15
I also disagree with the Majority Opinion’s conclusion that
the Morris County Cooperative Pricing Council should be
dismissed as a party to this appeal.
Rule 3 of Federal Appellate Procedure does not demand that a
notice of appeal identify each appellee. Instead, it requires the
appealing party to (A) specify the party or parties taking the
appeal; (B) designate the judgment, order, or part thereof being
18
appealed; and (C) identify the court to which the appeal is
taken. See Fed. R. App. P. 3(c). The notice of appeal – even
without listing the council specifically – satisfies requirements
(A) and (C). For subpart (B), I see no uncertainty about which
order Mid-American appeals: the District Court granted only
one contested motion by the council. Mid-American should
not be faulted for not seeking reconsideration of that ruling
because reconsideration does not operate as an exhaustion
requirement for a valid appeal. And other than this case, I am
unaware of any decision that has invalidated a notice of appeal
due to a footnote in a separate motion for reconsideration. By
contrast, precedent is replete with exhortations to “liberally
construe[] notices of appeal.” Trzaska v. L’Oreal USA, Inc.,
865 F.3d 155, 163 (3d Cir. 2017) (quoting Sulima v.
Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir. 2010));
see also Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139,
144 (3d Cir. 1998) (explaining that prior court orders are
merged into the final judgment for purposes of appeal). For
these reasons, the council should be a party to this appeal.