      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ALLTRISTA PLASTICS, LLC d/b/a           )
JARDEN PLASTIC SOLUTIONS                )
                                        )
      Plaintiff,                        )
                                        )
      v.                                ) C.A. No. N12C-09-094 JRJ CCLD
                                        )
ROCKLINE INDUSTRIES, INC.,              )
                                        )
      Defendant.                        )

                                   OPINION

                       Date Submitted: February 5, 2016
                        Date Decided: March 11, 2016

      Upon Plaintiff’s Motion for Summary Judgment: DENIED.

Joseph A. Bellew, Esquire, Cozen O’Connor, Wilmington, DE, James H. Heller,
Esquire (pro hac vice) (argued), Abby L. Sacunas, Esquire (pro hac vice), Cozen
O’Connor, Philadelphia, PA, Attorneys for Plaintiff Alltrista Plastics, LLC d/b/a
Jarden Plastic Solutions.

Daniel J. Brown, Esquire, James J. Freebery, Esquire, McCarter & English, LLP,
Wilmington, DE, Jessica H. Polakowski, Esquire (pro hac vice), Reinhart Boerner
Van Deuren, s.c., Madison, WI, Guy R. Temple, Esquire (pro hac vice) (argued),
Reinhart Boerner Van Deuren, s.c., Milwaukee, WI, Attorneys for Defendant
Rockline Industries, Inc.

Jurden, P.J.
                                  I. INTRODUCTION

       Before the Court is Plaintiff Alltrista Plastics, LLC d/b/a Jarden Plastic

Solutions’ (“Jarden”) Motion for Summary Judgment on its breach of contract

claim against Rockline Industries, Inc. (“Rockline”), and for dismissal of

Rockline’s counterclaims for intentional misrepresentation, breach of the implied

covenant of good faith and fair dealing, promissory estoppel, and unjust

enrichment.1

                                  II. BACKGROUND

A. The Parties

       Jarden supplies plastic packaging solutions, including thin-wall plastic

injection molded products, to a variety of industries. 2 Rockline produces, among

other things, disinfecting wet wipes. 3 In 2009, Jarden approached Rockline about

manufacturing wet wipe canisters for Rockline using Jarden’s “LitePak” canister

design.4 LitePak canisters are thin-walled, injection molded canisters that are




1
  Motion for Summary Judgment (“Jarden Mot. Summ. J.”) (Trans. ID. 58195759); Defendant
Rockline Industries’ Memorandum of Law in Opposition to Jarden’s Motion for Summary
Judgment (“Rockline Resp.”) (Trans. ID. 58328694); Plaintiff’s Reply Memorandum in Support
of its Motion for Summary Judgment (Trans. ID. 58435227).
2
  Joint Pre-Trial Stipulation at 13 (Trans. ID. 58679062).
3
  Id.
4
  Jarden Mot. Summ. J. at 3; Rockline’s Resp. at 3, Ex. C Deposition of Mike Zaagman at 69:15–
21.
                                              2
“lighter in weight and more bio-degradable” than traditional blow molded

canisters. 5

       In November 2009, Jarden and Rockline executed a Letter of Understanding

(“LOU”) outlining the anticipated terms and conditions of a future supply

agreement.6 Canisters from Jarden’s single cavity prototype tool were provided to

Rockline in late 2009 “to allow Rockline to verify whether the [p]rototype

[c]anisters would work in Rockline’s manufacturing process.”7

       On October 19, 2010, Kishore Gonpati (“Gonpati”), a Rockline packaging

engineer, signed a canister design drawing (“October 2010 Design Drawing”) for

Jarden to use in cutting an eight cavity production tool.8 That same day, Gonpati

circulated the October 2010 Design Drawing and a component specification

document numbered “24021 Revision A” (“Component Specification 24021”) to

Jarden employees, Timothy Benz (“Benz”) and Susan Braun.9




5
  Jarden Mot. Summ. J. at 3.
6
  Jarden Mot. Summ. J., Ex. E.
7
  Rockline Resp. at 3.
8
  Jarden Mot. Summ. J., Ex. G Deposition of Kishore Gonpati at 137:10–15 (Q. - - on [Jarden
Mot. Summ. J., Ex. H] was that your way of telling Jarden, among other people, that the
prototype tool was approved and that you could then start cutting the production tool?
A. Correct.).
9
  Jarden Mot. Summ. J., Ex. B Deposition of Timothy Benz at 37:19–38:1; Jarden Mot. Summ.
J., Ex. I.
                                            3
B. The Supply Agreement

       Jarden and Rockline signed a contract (“Supply Agreement”) on November

2, 2010. 10 Pursuant to the Supply Agreement, the “one (1) cavity prototype tool”

would be modified by Jarden at Rockline’s expense to become “a set of workable

plastic injection tools for the production of 105[]mm cylindrical [wet] wipe

canisters . . . (‘Canisters’).” 11 Rockline agreed to purchase “at least 13,000,000

Canisters . . . (the ‘Annual Minimum’)” each year, for three years, and, if Rockline

did not “purchase the Annual Minimum for any reason other than Jarden’s failure

to supply . . . Rockline [would pay] . . . for the purchase shortfall.” 12

       The Supply Agreement also provides that the total cost “for the Tool shall be

$500,000.00,” consisting of $200,000.00 Rockline previously paid to Jarden under

the LOU and $300,000.00 Rockline agreed to pay to Jarden “within ten (10) days

of Tool validation.” 13

       Section 4(a) of the Supply Agreement provides that “Jarden and Rockline

shall work together to reach agreed upon Specifications,” and “[o]nce the parties




10
   Joint Pre-Trial Stipulation at 13; Jarden Mot. Summ. J., Ex. A Supply Agreement (“Supply
Agreement”).
11
   Supply Agreement p.1.
12
   Id. ¶ 1(i).
13
   Id. p. 1, ¶ 3(c). The Supply Agreement “supersedes and replaces the terms of any and all prior
discussion, agreements or understanding between the Parties,” including the November 12, 2009
Letter of Understanding. Id. ¶ 23; Jarden Mot. Summ. J., Ex. E.
                                               4
reach agreed upon Specifications, Jarden shall materially conform to the respective

specifications as set forth in Exhibit A” (“Canister Specifications”). 14

C. Development of the Production Tool

       According to Rockline, Rockline ordered a shipment of “TR 12” canisters,

and, upon receipt, shrink wrapped pallets of the TR 12 canisters for a stack test,

“with intent to then complete a final ship test.”15 When Rockline employees

inspected the pallets, they reported denting, buckling, and cracking in the TR 12

canisters. 16 On March 21, 2012, Rockline informed Jarden that the canisters had

failed Rockline’s stack test.17

       Jarden immediately sent a representative, Todd Zillmer (“Zillmer”), to

Rockline’s warehouse to view the TR 12 canisters.18 Zillmer believed that the

observed damage to the TR 12 canisters was caused by Rockline shrink wrapping

the canisters too tightly. 19 Rockline, however, did not believe that the shrink

wrapping caused the damage, and sent Jarden a checklist of “variables to be

investigated and documented.” 20         According to Rockline, the purpose of the




14
   Supply Agreement ¶ 4(a).
15
   Jarden Mot. Summ. J., Ex. T.
16
   Id.
17
   Id.
18
   Joint Pre-Trial Stipulation at 13.
19
   Jarden Mot. Summ. J., Ex. C June 17, 2015 Deposition of Ronald Kerscher at 168:23–169:14.
20
   Rockline Resp. at 8, Exs. S, T.
                                             5
checklist was to help determine why the TR 12 canisters were not performing as

well as the prototype canisters. 21

       Jarden never responded to Rockline’s checklist and request for an

investigation. Instead, Jarden filed the instant action alleging breach of contract

against Rockline because, according to Jarden, Jarden had fulfilled its contractual

obligations and it was clear that “Rockline was going to breach the Supply

Agreement by refusing to order the canisters or pay the outstanding balance for the

tool.” 22

       Rockline then counterclaimed, alleging breach of contract, intentional

misrepresentation, breach of the covenant of good faith and fair dealing,

promissory estoppel, and unjust enrichment. 23

                             III. STANDARD OF REVIEW

       Superior Court Civil Rule 56 permits summary judgment when “there is no

genuine issue as to any material fact” such that “the moving party is entitled to a

judgment as a matter of law.”

       When interpreting a contract, Delaware courts give priority to the intentions

of the parties as “‘reflected in the four corners of the agreement,’ construing the




21
   Id.
22
   Jarden Mot. Summ. J. at 12–13.
23
   Alltrista Plastics, LLC v. Rockline Indus., Inc., 2013 WL 5210255 (Del. Super. Sept. 4, 2013).
                                                6
agreement as a whole and giving effect to all its provisions.” 24              “Where the

contract language is clear and unambiguous, the parties’ intent is ascertained by

giving the language its ordinary and usual meaning.” 25                 However, “where

reasonable minds could differ as to the contract’s meaning, a factual dispute results

and the fact-finder must consider admissible extrinsic evidence.”26 “[S]ummary

judgment may not be awarded if the language is ambiguous and the moving party

has failed to offer uncontested evidence as to the proper interpretation.”27

                                   IV. DISCUSSION

A. Summary Judgment on Jarden’s Breach of Contract Claim

       Jarden maintains that it is entitled to summary judgment on its breach of

contract claim because there is no genuine issue of material fact that: (1) Jarden

manufactured canisters that conformed to the “agreed upon [Canister]

Specifications;” (2) the production tool was validated; and (3) after agreeing to

Canister Specifications and validating the production tool, Rockline submitted a

purchase order to Jarden, thereby triggering Rockline’s obligation to “take or pay”

for 13,000,000 canisters annually for three years.28



24
   Salamone v. Gorman, 106 A.3d 354, 368 (Del. 2014) (quoting GMG Capital Inv., LLC. v.
Athenian Venture Partners I, L.P., 36 A.3d 776, 779 (Del. 2012)).
25
   Nw. Nat. Ins. Co. v. Esmark, Inc., 672 A.2d 41, 43 (Del. 1996) (citing Rhone-Poulenc Basic
Chemicals Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992)).
26
   GMG, 36 A.3d at 783.
27
   Id. at 784.
28
   Jarden Mot. Summ. J. at 13–19.
                                             7
       Rockline argues that there are genuine issues of material fact in dispute

because: (1) Jarden could not possibly manufacture canisters that conformed to

“agreed upon [Canister] Specifications” because Jarden and Rockline never agreed

upon Canister Specifications; (2) the production tool was never validated; and (3)

Rockline never triggered its Annual Minimum purchase obligation because

Rockline only ordered trial canisters, not production canisters. 29

       The key issue in this motion for summary judgment is whether Jarden and

Rockline agreed upon Canister Specifications.               If Jarden and Rockline never

agreed upon Canister Specifications, then Jarden could not manufacture

“Canisters” as contemplated by the Supply Agreement.

       According to Jarden, Jarden and Rockline agreed to Canister Specifications,

and Jarden manufactured canisters that conformed to those specifications.30

However, Rockline, allegedly motivated by an inability to sell the Annual

Minimum,       breached     the   Supply     Agreement          by   attempting    to   impose

extracontractual performance obligations on Jarden and refusing to purchase

canisters.    In particular, Jarden objects to any implication that the Supply

Agreement      requires    Jarden   to     fix       problems    “outside   of    its   control,

including . . . shrink wrapping, stacking or storing of filled canisters.”31


29
   Rockline Resp. at 10–21.
30
   Jarden Mot. Summ. J. at 1–3.
31
   Id. at 11.
                                                 8
       1. Agreed Upon Canister Specifications

       The Supply Agreement unambiguously states that Rockline and Jarden

“shall work together to reach agreed upon [Canister] Specifications,” and “[o]nce

the parties reach agreed upon Specifications, Jarden shall materially conform to the

respective specifications as set forth in Exhibit A hereto (the ‘Specifications’).”32

When Jarden and Rockline entered into the Supply Agreement, “Exhibit A” did not

include any the Canister Specifications. 33

       Jarden claims that the October 2010 Design Drawing and Component

Specification 24021 constitute the agreed upon Canister Specifications. 34                   In

support of this, Jarden cites the deposition testimony of Benz. Benz testified in his

deposition that the October 2010 Design Drawing and Component Specification

24021 attached to Gonpati’s pre-Supply Agreement email “appear[ed] to be the

Rockline specification for the Jarden Litepak can[ister].” 35 Benz also testified that

he believed that specifications were “Exhibit A” of the Supply Agreement.36




32
   ¶ 4(a) (emphasis added). The Supply Agreement also states: “The Canister will be made with
a thin-wall technology, employing a thin wall, supported by an internal series of plastic ribs,”
and “[t]he Canister will have adequate static-load strength for automatic pressure down capping
machinery.” Id. p. 1. These provisions do not appear to be at issue.
33
   “Exhibit A” states only “(Here, insert drawings and specifications for the Canister).”
34
   Jarden Mot. Summ. J. at 5.
35
   Jarden Mot. Summ. J., Ex. B Deposition of Timothy Benz at 27:2–24.
36
   Id.
                                               9
          In further support, Jarden cites a 2012 email Benz sent to Ron Kerscher

(“Kerscher”), another Rockline employee. 37 The subject line of the email reads,

“Jarden documents,” and attached to the email is a copy of the October 2010

Design Drawing and Component Specifications 24021. In the text of this email,

Benz describes the October 2010 Design Drawing and Component Specifications

24021 as “Exhibit A.”

          Jarden maintains that Benz’s deposition testimony, the October 2010 Design

Drawing, and Component Specifications 24021 establish that there is no genuine

issue of material fact in dispute that Jarden and Rockline agreed upon Canister

Specifications.

          The October 2010 Design Drawing, Component Specification 24021, and

Gonpati’s email forwarding those documents to Benz all pre-date the execution of

the Supply Agreement, and these documents were not incorporated into the Supply

Agreement when it was executed.38 Therefore, if Jarden and Rockline agreed that

the October 2010 Design Drawing and Component Specification 24021 constituted

the Canister Specifications, the alleged agreement occurred at some point after the

parties entered into the Supply Agreement.

          Jarden asserts that Benz’s “admission” that the October 2010 Design

Drawing and Component Specification 24021 were the Canister Specifications

37
     Jarden Mot. Summ. J.at 6, Ex. J.
38
     Jarden Mot. Summ. J., Exs. A, I.
                                          10
proves that these documents were agreed upon as contemplated by the Supply

Agreement. But, Benz’s deposition testimony is disputed. For example, Gonpati,

the signer of the October 2010 Design Drawing and the author of the email

forwarding that document and Component Specification 24021 to Benz, testified

that Component Specification 24021 was a “living document” representing “the

specifications to which the Jarden can[ister] had to be manufactured” “[a]s of

October 19, 2010.”39 Further, Kerscher testified that although the parties “were

working all along through all these working documents,” the “final specification”

Jarden would be required to conform to in producing the “Canisters” was

never reached by the parties.40 Finally, Benz testified that the October 2010

Design Drawing and Component Specifications 24021, attached as “Exhibit A” in

his 2012 email, was a “preliminary spec[ification]” that had been approved, “but

the final spec[ification] had not been approved.” 41

      Because there are genuine issues of material fact in dispute with regard to

whether the parties agreed upon Canister Specifications, summary judgment is

inappropriate.




39
   Rockline’s Resp., Ex. E Deposition of Kishore Gonpati at 140:7–145:23.
40
   Rockline’s Resp., Ex. H June 17, 2015 Deposition of Ronald Kerscher at 37:22–38:24,
165:17–166:4 (emphasis added).
41
   Rockline’s Resp., Ex. A Deposition of Timothy Benz at 243 (emphasis added).
                                         11
       2. Tool Validation

       Pursuant to the Supply Agreement, Rockline agreed to pay Jarden

$300,000.00 “within ten (10) days of Tool validation.” “Tool validation” is not a

defined term in the Supply Agreement, and examination of the Supply Agreement

as a whole does not make clear what constitutes “Tool validation.” Therefore, the

Supply Agreement is ambiguous as to what constitutes “Tool validation.” 42

       Jarden argues that Tool validation occurred on July 13, 2011, when both

Jarden and Rockline employees signed a canister design drawing “pending

evaporation testing” (“July 2011 Design Drawing”).43 Jarden further argues that

Tool validation occurred again when the Jarden canisters passed Phase I and II of

Rockline’s three phase “Mold Qualification Procedure.” 44

       Rockline argues that Tool validation never occurred. In support of its

argument, ROckline point out that although the July 2011 Design Drawing was

signed on behalf of Rockline by Donald Neitzel (“Neitzel”) and Gonpati, Jarden

relies upon Benz’s deposition testimony to establish that Rockline “admitted” that

the tool was validated by that document. 45           Neitzel and Gonpati both testified at

their depositions that their signatures were intended to acknowledge that design

42
    For example, does validation require merely producing canisters within particular
specifications or does validation require producing canisters within particular specifications over
a particular period of time. See, e.g., Rockline Resp., Ex. R (describing Rockline’s Mold
Qualification Prodcedure).
43
   Jarden Mot. Summ. J. at 8, Ex. Q.
44
   Jarden Mot. Summ. J. at 9, Ex. C at 92:4–9, Ex. K.
45
   Jarden Mot. Summ. J., Ex. Q.
                                               12
changes had been incorporated into the document, without mention of “Tool

validation.”46

       Second, and contrary to Jarden’s assertion that Benz admitted that the

production tool was validated, Benz testified: (1) he was not present when the July

2011 Design Drawing was signed; (2) neither Neitzel nor Gonpati reported back to

him about the July 2011 Design Drawing; and (3) he “would not consider [the July

2011 Design Drawing to be] a tool validation.”47

       Finally, with respect to Jarden’s argument that completion of Phase II of

Rockline’s Mold Qualification Procedure validated the production tool, whether

Phase II Mold Qualfication Procedure completion constitutes “Tool validation”

under the “proper interpretation” of the Supply Agreement is an issue of fact to be

decided by the jury. 48

       There are genuine issues of material fact in dispute as to whether the

production tool was validated, as required by the Supply Agreement to trigger

Rockline’s obligation to pay Jarden the $300,000.00 balance of the total cost.




46
   Rockline Resp, Ex. E Deposition of Kishore Gonpati at 346:24–347:20 (“[I]t’s a change of
design we have to redo all the validation for this part.”); Rockline Resp., Ex. F Deposition of
Donald Neitzel at 149:21–152:5.
47
   Rockline Resp., Ex. A Deposition of Timothy Benz at 227:13–230:23.
48
   GMG, 36 A.3d at 784.
                                              13
B. Summary Judgment on Rockline’s Counterclaims

      1. Intentional Misrepresentation

      Rockline alleges that Jarden intentionally misrepresented the material

characteristics of the prototype canisters, intending to induce Rockline into a

contract. To prove a claim of intentional misrepresentation, Rockline must show:

(1) that Jarden made a false representation to Rockline; (2) with knowledge or

belief of its falsity or with reckless indifference to the truth; (3) with intent to

induce action or inaction; (4) that Rockline’s response was taken in justifiable

reliance on the representation; and (5) an injury resulting from such reliance.49

      Jarden argues that there is no evidence to support Rockline’s claim that

Jarden represented to Rockline that it would “produce canisters from an eight-

cavity production tool that were the same as the Prototype Canisters made from the

single-cavity Prototype Tool.”50       More specifically, Jarden argues that it is

manifest that Jarden could not have represented that the production canisters would

be “the same” because changes to the canister design were approved by Rockline

throughout the development process.51




49
    Alltrista, 2013 WL 5210255, at *3 (citing Van Lake v. Sorin CRM USA, Inc., 2013 WL
1087583, at *12 (Del. Super. Feb. 15, 2013)).
50
    Jarden Mot. Summ. J. at 21 (quoting Defendant’s Answer, Affirmative Defenses and
Counterclaims ¶ 22 (“Rockline Answer and Countercls.”) (Trans. ID. 48066735)) (emphasis in
Jarden Mot. Summ. J.).
51
   Jarden Mot. Summ. J. at 21, Ex. BB at 7–8.
                                           14
       Rockline challenges Jarden’s characterization of Rockline’s allegations of

intentional misrepresentation. Rockline asserts that Jarden represented that the

production canisters would have the same material composition as the prototype

canisters. 52   Specifically, Rockline points to a September 2010—pre-Supply

Agreement—email exchange between Mike Zaagman (“Zaagman”), a Jarden

employee, and Benz, a Rockline employee. 53 In this exchange, Benz notifies

Zaagman that the Litepak material specification in Rockline’s possession did not

identify who Jarden’s resin supplier was or what resin number Jarden utilized in its

production.54 Benz asked Zaagman to supply this information. 55 In response,

Zaagman stated that he “forwarded the material spec[ification] sheet for the

polypropylene based material already . . . [it] is a Jarden specialty blend.” 56 To

support its assertion that this exchange evidences an actionable misrepresentation,

Rockline points to evidence that the resin used in the prototype canisters was not a

“specialty blend,” and that the material characteristics of the production canister

were significantly different than the prototype canisters.57

       There are genuine issues of material fact in dispute with regard to whether

Jarden intentionally misrepresented the material composition of the prototype

52
   Rockline Resp. at 27–28.
53
   Rockline Resp., Ex. W.
54
   Id.
55
   Id.
56
   Id.
57
   Rockline Resp., Ex B Deposition of Chris Navratil at 383:14–23, Ex. O Expert Report of Paul
J. Gramann at 19.
                                             15
canister with the intent to induce Rockline to enter the Supply Agreement, and

whether Rockline reasonably relied on those misrepresentations. 58

       Jarden argues that the parol evidence rule and the economic loss doctrine

preclude Rockline’s intentional misrepresentation claim. 59 First, to the extent that

Jarden’s parol evidence argument rehashes its argument that the Supply

Agreement’s integration clause precludes Rockline’s intentional misrepresentation

claim, the Court will not reconsider its conclusion that “[b]ecause the Supply

Agreement’s integration clause contains no explicit anti-reliance language,

Rockline is not barred from bringing a claim for intentional misrepresentation.”60

Second, the parol evidence rule does not bar proof of claims alleging fraud in the

inducement of a contract. 61 And last, the economic loss rule does not preclude

Rockline’s intentional misrepresentation claim because the allegations go to the

inducement of the contract, not to Jarden’s performance. 62



58
   Rockline’s Counterclaims were amended to conform its intentional misrepresentation claim to
the evidence proffered on Jarden’s Motion for Summary Judgment. Pretrial Stipulation at 33–37;
Mar. 7, 2016 Amended Judicial Action Form (Trans. ID. 58688961).
59
   Jarden Mot. Summ. J. at 22–26; see Brasby v. Morris, 2007 WL 949485, at *7 (Del. Super.
Mar. 29, 2007) (“[A]s a general rule, ‘in order for contract and tort claims to co-exist in an
action, the plaintiff must allege that the defendant breached a duty that is independent of the
duties imposed by the contract.’”) (quoting McKenna v. Terminex Int'l Co., 2006 WL 1229674,
at *2 (Del. Super. Mar. 13, 2006)).
60
   Alltrista, 2013 WL 5210255, at *6.
61
   26 Williston on Contracts § 69:2 (4th ed.) (citing Restatement (Second) of Contracts § 216)
(“A written contract containing a merger clause can nevertheless be avoided for antecedent fraud
or fraud in its inducement, and the parol evidence rule does not stand in the way of proof of such
fraud.”).
62
   Brasby, 2007 WL 949485, at *7.
                                               16
       2. Breach of the Covenant of Good Faith and Fair Dealing

       Jarden argues that Rockline’s counterclaim for breach of the covenant of

good faith and fair dealing should be dismissed because “the implied covenant of

good faith and fair dealing will not add requirements to a contract.” 63 This Court

denied Jarden’s Motion to Dismiss on Rockline’s claim of breach of the implied

covenant of good faith and fair dealing because Rockline sufficiently alleged a

specific implied contractual obligation that Jarden and Rockline would work

together to determine why the canisters failed.64 The Court will not revisit the

decision.

       3. Promissory Estoppel and Unjust Enrichment

       Jarden argues that the Court should grant summary judgment on Rockline’s

promissory estoppel claim because “Rockline seeks to recover [payments] in this

action [that] are contemplated and/or otherwise precluded by the Supply

Agreement, making promissory estoppel an inappropriate means to recover those

funds.”65 Similarly, Jarden argues that Rockline cannot recover on a claim of

unjust enrichment because the Supply Agreement is the measure of the parties’

rights in this case.




63
   Jarden Mot. Summ. J. at 27.
64
   Alltrista, 2013 WL 5210255, at *7.
65
   Jarden Mot. Summ. J. at 29–30.
                                        17
       In its decision on Jarden’s Motion to Dismiss, the Court held, “[t]o the

extent that Rockline has made payments that are expressly contemplated by the

Supply Agreement, it must seek to recover that money under its breach of contract

claim.” 66 Rockline does not dispute this decision, but argues that damages on its

promissory estoppel claim and unjust enrichment claim would encompass costs

incurred by Rockline before the execution of the Supply Agreement. And, in the

event of rescission, the Supply Agreement would no longer preclude recovery of

damages in tort. 67

       Jarden has not met its burden of proof as the moving party on summary

judgment to show that there are no genuine issues of material fact relating to

Rockline’s ability to show damages on its promissory estoppel or unjust

enrichment claims. 68




66
   Alltrista, 2013 WL 5210255, at *10.
67
   Rockline Resp. at 32–33.
68
   Jarden’s arguments about Rockline’s potential damages if the parties relationship defaults to
the LOU were raised for the first time in its reply brief. The record is not sufficient for the Court
to rule on these arguments, and the Court will not consider them at this time. In re Asbestos
Litig., 2012 WL 2389898, at *1 (Del. Super. June 22, 2012) (“The practice of adding arguments
for summary judgment after the opening brief ‘has been expressly prohibited by this Court’
numerous times.”) (quoting In re Asbestos Litig.:Montgomery, 2011 WL 5395554, at *3 (Del.
Super. Sept. 28, 2011)).
                                                18
                            V. CONCLUSION

     For the foregoing reasons, Plaintiff Alltrista Plastics, LLC d/b/a Jarden

Plastic Solutions’ Motion for Summary Judgment is DENIED.

     IT IS SO ORDERED.

                                                /s/Jan R. Jurden
                                          Jan. R. Jurden, President Judge




                                     19
