TURBULENT DIFFUSION TECHNOLOGY INC. v. AMEC FOSTER WHEELER NORTH AMERICA CORP.
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 5/4/2017. (km)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TURBULENT DIFFUSION TECHNOLOGY :
AMEC FOSTER WHEELER NORTH
CIVIL ACTION NO. 15-7105(MLC)
Plaintiff Turbulent Diffusion Technology Inc. (“TDT”) filed suit against
Defendant Amec Foster Wheeler North America Corporation (“Amec Foster Wheeler”)
alleging breach of contract, anticipatory repudiation, wrongful termination, and breach of
the covenant of good faith and fair dealing. (See dkt. 1.)1 On October 24, 2016, TDT
filed an amended complaint maintaining the same counts. (See dkt. 22.) On November
3, 2016, Amec Foster Wheeler answered TDT’s Amended Complaint and brought
counterclaims alleging breach of contract, breach of the covenant of good faith and fair
dealing, breach of express warranty, breach of implied warranty of fitness for a particular
purpose, and fraud in the inducement. (See dkt. 24.) Counterclaim-Defendant TDT filed
the pending Motion to Dismiss, seeking to dismiss only Amec Foster Wheeler’s
The Court will cite to documents filed on the Electronic Case Filing System (“ECF”) by
referring to the docket entry numbers as “dkt.” Pincites reference ECF pagination.
counterclaim for fraud in the inducement. (See dkt. 25.) The Court resolves this motion
without oral argument. See L.Civ.R. 78.1(b). For the reasons stated herein, we will grant
TDT’s Motion to Dismiss.
In August 2013, Amec Foster Wheeler entered into a contract with a third party,
CH2-UGL JV (“CH2”), to supply and install utility boilers for CH2 at the Ichthys
Combined Power Plaint in Darwin, Australia. (Dkt. 24 at 11.) Amec Foster Wheeler and
TDT entered into a purchase order agreement (“Purchase Order”), wherein TDT agreed
to design, manufacture, supply, and deliver three burner and valve train skid systems
(“the Equipment”) for a contract price of $1,649,326.63 to Amec Foster Wheeler. (Id. at
11-14.) The Equipment designed and manufactured by TDT was to be supplied by Amec
Foster Wheeler for installation at the Ichthys Combined Cycle Power Plant in Darwin,
Australia pursuant to all codes applicable in the Northern Territories of Australia. (Id. at
After approximately two years and some level of performance of its obligations
pursuant to the Purchase Order, or lack thereof, TDT sent Amec Foster Wheeler a notice
of breach and demand for adequate assurances, pursuant to N.J.S.A. 12A:2-609. (Dkt. 22
The Purchase Order addresses compliance with Australian codes with multiple contract
provisions. For example, under “Scope of Supply/Pricing,” the Purchase Order states that
“[e]quipment supplied under this PO shall comply with Australian Codes and Standards as
applicable and referenced in the PO technical specifications and documents. (Dkt. 22-1 at 1819.) Under Section 6.2 entitled Warranties, the Purchase Order states that the Seller warrants
that the work will “[c]omply with all Applicable Laws, codes, regulations and rules.” (Id. at 14.)
at 10; dkt. 22-3.) Amec Foster Wheeler responded with a Notice of Termination and
Cancellation, terminating the Purchase Order for a variety of reasons. (See dkt. 22 at 10;
dkt 22-4; dkt. 24 at 20-21.)
TDT and Amec Foster Wheeler bring forth competing claims relating to the
breach of the Purchase Order. (See dkt. 22 at 11-17; dkt. 24 at 26-30.) Because these
claims are not germane to this Motion to Dismiss, we will not describe them in detail
here. Instead, we focus on the factual allegations related to the fraud in the inducement
claim asserted by Amec Foster Wheeler. However, we note that Amec Foster Wheeler’s
breach of contract, breach of express warranty, and breach of implied warranty claims are
based, in part, on the alleged noncompliance of the Equipment with the terms and
specifications of the Purchase Order, which include the Australian codes. See n. 2, supra.
Prior to the execution of the Purchase Order, and in connection with its bid
evaluation process, Amec Foster Wheeler met with TDT in June 2013. (Id. at 31.) Amec
Foster Wheeler alleges that TDT, in an effort to induce Amec Foster Wheeler to issue and
execute the Purchase Order, represented that “its work would comply with the Australian
Code requirement” and that “it would meet this requirement through a subcontract with
Optimil Machinery, Inc.” (“Optimil”). (Id. at 31.) Amec Foster Wheeler further alleges
that TDT made the following additional representations at the June 2013 meeting:
(1) “all equipment ordered through TDT will be fabricated at [Optimil], in Delta, British
Columbia, Canada”; (2) “TDT had a ‘partnership’ with Optimil”; (3) “TDT maintained
100% control of work in the shop of Optimil”; and (4) “[Optimil] had performed projects
in Australia, was familiar with Australian codes and standards and was “confident” in its
ability to comply with Australian codes that governed [the] work.” (Id. at 31.) Amec
Foster Wheeler alleges that at the time of the June 2013 meeting, TDT knew that its
representations regarding Optimil were false, and that they were made with the intention
that Amec Foster Wheeler rely on them to issue the Purchase Order to TDT. (Id. at 3233.) Amec Foster Wheeler alleges that it did rely on these misrepresentations and
executed the Purchase Order to its detriment. (Id. at 33.)
The Parties’ Positions
TDT offers three arguments in favor of dismissing Amec Foster Wheeler’s claim
for fraud in the inducement: (1) the claim is barred by the economic loss doctrine; (2) the
claim is barred by the Purchase Order’s integration clause; and (3) the claim should be
dismissed because Amec Foster Wheeler did not allege facts that demonstrate that the
alleged misrepresentations were material. (Dkt. 25-1 at 4-5.) The following is a
summary of the parties’ positions on these issues.
The Economic Loss Doctrine
“The economic loss doctrine ‘prohibits plaintiffs from recovering in tort economic
losses to which their entitlement only flows from contract.’” Bracco Diagnostics, Inc. v.
Bergen Brunswig Drug Co., 226 F.Supp.2d 557, 562 (D.N.J. 2002) (quoting Duquesne
Light Co. v. Westinghouse Elec. Co., 6 F.3d 604, 618 (3d Cir.1995)). “In particular,
‘whether a tort claim can be asserted alongside a breach of contract claim depends on
whether the tortious conduct is extrinsic to the contract between the parties.’” RNC Sys.
v. Modern Tech. Group, Inc., 861 F. Supp. 2d 436, 451 (D.N.J. 2012) (quoting Chen v.
HD Dimension Corp., No. 10-863, 2010 WL 4721514, at *8 (D.N.J. Nov. 15, 2010)).
“For instance, a plaintiff may be permitted to proceed with tort claims sounding in fraud
in the inducement so long as the underlying allegations involve misrepresentations
unrelated to the performance of the contract, but rather precede the actual commencement
of the agreement.” Id. (citations omitted). However, “only those pre-contractual
misrepresentations that are extraneous to the parties’ contract may be brought alongside a
breach of contract claim.” Montclair State University v. Oracle USA, Inc., No. 11-2867,
21012 WL 3647427, at *4 (D.N.J. Aug. 23, 2012) (citations omitted).
An alleged misrepresentation is extraneous to an agreement
when it breaches a duty separate and distinct from the
performance of the agreements terms. In other words, an act
that is in breach of a specific contractual undertaking would
not be extrinsic, but an act that breaches some other duty
would be. Hence, an alleged misrepresentation that involves
a nonfulfillment of a warranty or guarantee contained within
the contract itself cannot be said to be extraneous to the
Id. at *5 (quotations and citations omitted).
TDT argues that the misrepresentations forming the basis of Amec Foster
Wheeler’s fraud in the inducement claim relate directly to the performance of the
Purchase Order. Specifically, TDT argues that its statements that “its work would
comply with the Australian Code requirement” and that “it would meet this requirement
through a subcontract with Optimil” directly relate to the express terms of the Purchase
Order, (i.e., the Australian code requirement). (Dkt. 25-1 at 10.) TDT asserts that its
additional statements concerning its relationship with Optimil directly relate to the
performance of the Australian code requirement.
TDT also argues that the alleged misrepresentations relate to the use of a
subcontractor, an issue that is directly addressed in Section 8.5 of the Purchase Order:
8.5 No part of the work shall be sublet by Seller to another
party at any tier except with the prior written approval of
Purchaser. If Seller intends to subcontract any work, the
identity and location of the proposed subcontractor(s) and the
scope of their work must be submitted by Seller in writing for
Purchaser’s approval. The location of origin of all work
performed by each approved subcontractor shall be the country
of the location of the subcontractor approved by Purchaser.
Seller shall impose on each of his subcontractor(s) the
applicable requirements of this Purchase Order. Purchaser
shall be furnished with three fully executed copies of all such
subcontracts. Notwithstanding such subcontracting, Seller
shall have the sole and full responsibility for fulfilling all of
Seller’s obligations under this Purchase Order, and Seller shall
assume full responsibility to Purchaser and Purchaser’s
Customer for the acts and omissions of its subcontractors and
their employees to the same extent as Seller is responsible for
Seller’s own acts or omissions.
(Dkt. 22-1 at 6.) Based on this provision of the Purchase Order, TDT argues that any
alleged statement pertaining to Optimil was necessarily intrinsic to the Purchase Order.
(Dkt. 25-1 at 11.)
TDT also argues that Amec Foster Wheeler’s fraud in the inducement claim
cannot be extrinsic because the damages sought for that claim are identical to those
sought in connection with Amec Foster Wheeler’s contract-based claims. (Id. at 12.)
Amec Foster Wheeler argues that the economic loss doctrine does not bar its fraud
in the inducement claim because the alleged misrepresentations are extrinsic to the
performance of the Purchase Order. Specifically, Amec Foster Wheeler argues that
TDT’s representations relating to its preexisting relationship with Optimil and its control
over the manufacturing process to be performed by Optimil “resulted in a companion
misrepresentation as to TDT’s capability to meet the requirements of its contract with
Amec Foster Wheeler.” (Dkt. 31 at 22-23.) Amec Foster Wheeler also points out that
the Purchase Order “does not address the relationship between TDT and Optimil or the
existing capabilities of TDT and use of Optimil to meet the specifications for the
Purchase Order work.” (Id. at 23.)
With respect to the similarity of damages, Amec Foster Wheeler states that its
failure to expressly seek recovery of punitive damages, available for its claim for fraud in
the inducement, was an oversight. (Dkt. 31 at 30 n. 2.) Thus, Amec Foster Wheeler
requests leave of Court to seek such damages if its claim survives. (Id.)
The Integration Clause
“In general, where a contract contains an integration clause, the parol evidence
rule bars the introduction of evidence of extrinsic negotiations or agreements to
supplement or vary its terms.” CDK Global, LLC v. Tulley Auto. Grp., Inc., No. 153103, 2016 WL 1718100, at *3 (D.N.J. Apr. 29, 2016). There is an exception for fraud in
the inducement. However, for that exception to apply, the alleged fraud “must concern a
matter not addressed in the agreement.” Id. In other words, for a fraud in the inducement
claim to survive, “the subject of the misrepresentation must be extraneous to the
When “misrepresentations made during the course of negotiations are addressed
by the terms of the contract, the claim becomes one for breach of contract, not fraudulent
inducement.” Id. In such cases, the integration clause will bar the fraud claim. See
RNC, 861 F. Supp. 2d at 455 (finding the fraudulent inducement claim to concern matters
“expressly addressed in the integrated writing” and therefore holding the
misrepresentations inadmissible under the integration clause and the parol evidence rule).
When the misrepresentations are extrinsic to the contract and can support a claim of fraud
in the inducement, an integration clause does not act to bar those counts. See CDK, 2016
WL 1718100, at *4 (finding that the statements were independent of the contract terms
and therefore were not barred by the integration clause).
The Purchase Order contains an integration clause which states:
ATTACHMENTS WHICH ARE MADE A PART HEREOF,
CONTAIN THE ENTIRE AND SOLE AGREEMENT
BETWEEN BUYER AND SELLER CONCERNING THIS
SCOPE OF SUPPLY.
WARRANTY, PROMISE OR CONDITION NOT
INCORPORATED HEREIN SHALL NOT BE BINDING ON
EITHER PARTY. ANY ADDITIONAL OR DIFFERENT
TERMS PROPOSED BY SELLER ARE HEREBY DEEMED
TO BE MATERIAL ALTERATIONS AND NOTICE OF
REJECTION OF THEM HEREBY GIVEN.
(Dkt. 22-1 at 2.) TDT argues that the alleged misrepresentations relate to the use of
Optimil as a subcontractor, a topic that is dealt with in the Purchase Order. In view of
this integration clause and the provision pertaining to the approval of subcontractors in
Section 8.5 of the Purchase Order, see Section I.B.1, supra, TDT argues that Amec Foster
Wheeler’s alleged reliance on any pre-contractual oral representations relating to the use
of a subcontractor is “manifestly unreasonable.” (Dkt. 25-1 at 13-14.)
Amec Foster Wheeler argues that Section 8.5 of the Purchase Order “only
addresses the procedure by which TDT may obtain approval for the use of a
subcontractor to complete its Purchase Order work” and “does not address the controlled
relationship between TDT and Optimil, nor does it address TDT’s capability to satisfy the
Purchase Order’s classification or code requirements and the means by which TDT will
satisfy said requirements.” (Dkt. 31 at 25-26.) Amec Foster Wheeler argues that the
integration clause cannot bar its fraud in the inducement claim because the subject matter
of the alleged misrepresentations is not specifically addressed within the Purchase Order.
Materiality of Alleged Misrepresentations
“In order to establish a claim for fraudulent inducement, five elements must be
shown: (1) a material representation of a presently existing or past fact; (2) made with
knowledge of its falsity; and (3) with the intention that the other party rely thereon; (4)
resulting in reliance by that party; (5) to his detriment.” RNC, 861 F. Supp. 2d at 451.
TDT argues that Amec Foster Wheeler fails to allege facts demonstrating that
TDT’s alleged misrepresentations relating to Optimil were material. Specifically, TDT
argues that there is no allegation that TDT was incapable, on its own, of performing in
accordance with the Purchase Order’s specification or that Amec Foster Wheeler would
not have awarded the Purchase Order to TDT but for its alleged misrepresentations
relating to its anticipated use of Optimil as a subcontractor. (See dkt. 25-1 at 14-15.)
TDT takes the position that its alleged misrepresentations would only be material if
Optimil was ultimately used as a subcontractor, which Amec Foster Wheeler alleges it
was not. (Id. at 15.)
Amec Foster Wheeler argues that it has, in paragraphs 9, 35-37, and 84-88 of its
Amended Counterclaim (dkt. 24), clearly articulated with specificity that the requirement
that the equipment to be supplied by TDT meet Australian code was a critical condition
of the Purchase Order work. (See dkt. 31 at 28.) Amec Foster Wheeler argues that TDTs
representation that it would meet this critical condition through work completed by
Optimil was therefore material. (See id.) Alternatively, Amec Foster Wheeler requests
leave to amend its pleading if this Court determines that the fraud in the inducement
count is not sufficiently pled. (See id. at 29-30.)
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must “accept all
factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the
plaintiff may be entitled to relief.” Phillips v. Cty of Allegheny, 515 F.3d 224, 233 (3d
Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 261, 374 n.7 (3d Cir.
2002)). A Rule 12(b)(6) motion to dismiss should be granted only if the plaintiff is
unable to articulate “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The defendant bears the burden
of showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744,
750 (3d Cir. 2005).
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to set forth “a short
and plain statement of the claim showing that a pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). The pleading standard of Rule 8 does not require detailed factual allegations,
but demands “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In addition,
the plaintiff’s “short and plain statement of the claim” must “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S.
at 545 (citation omitted).
When a motion to dismiss involves an action for fraud, to comply with Rule 9(b) a
plaintiff may not rely merely on conclusory statements, but must instead indicate at the
very least who made the material misrepresentation giving rise to the claim and what
specific representations were made. South Broward Hosp. Dist. V. MedQuist Inc., 516 F.
Supp. 2d 370, 280 (D.N.J. 2007); see also Grant v. Turner, No. 09-2381, 2010 WL
4004719, at *2 (D.N.J. Oct. 12, 2010). To satisfy Rule 9(b), a plaintiff “must plead with
particularity the circumstances of the alleged fraud in order to place the defendants on
notice of the precise misconduct with which they are charged, and to safeguard
defendants against spurious charges of immoral and fraudulent behavior. Lum v. Bank of
Am., 361 F.3d 217, 223-24 (3d Cir. 2004).
When considering a Rule 12(b)(6) motion to dismiss, a court may consider
allegations in the complaint, documents attached thereto or specifically referenced
therein, and matters of public record. Pittsburgh v. W. Penn Power Co., 147 F.3d 256,
259 (3d Cir. 1998).3
Fed. R. Civ. P. 12(d) provides that “[i]f, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the motion must be
The Court will begin by addressing the integration clause in the Purchase Order,
which TDT maintains is a bar to Amec Foster Wheeler’s fraud in the inducement claim.
For the following reasons, we agree.
The alleged misrepresentations fall within the scope of the Purchase Order’s
integration clause. Ass discussed above, the integration clause states, in part, “ANY
REPRESENTATION, WARRANTY, PROMISE OR CONDITION NOT
INCORPORATED HEREIN SHALL NOT BE BINDING ON EITHER PARTY.” (See
dkt. 22-1 at 2.) The alleged misrepresentations were made orally to Amec Foster
Wheeler prior to the execution of the contract and were not incorporated into the
The alleged misrepresentations by TDT are not “wholly extraneous to the writing”
and relate to “matters expressly addressed in the integrated writing.” Travelodge Hotels,
Inc. v. Honeysuckle Enters., 357 F. Supp. 2d 788, 795 (D.N.J. 2005). TDT’s alleged
representation that “its work would comply with the Australian Code requirement” is
covered by multiple contractual provisions in the Purchase Order, and is therefore not
extraneous. See n. 2, supra. Amec Foster Wheeler does not raise any contrary arguments
treated as one for summary judgment.” Fed. R. Civ. P. 12(d). If a motion is treated as one for
summary judgment, “[a]ll parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.” Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716
F.3d 764, 775 (3d Cir. 2013). Here, Amec Foster Wheeler’s opposition brief attaches and makes
reference to the transcript and exhibits from the deposition of Robert Pinder in this matter, none
of which were referenced in or attached to TDT’s Amended Complaint or Amec Foster
Wheeler’s Answer and Counterclaims. In accordance with Rule 12(d), the Court declines to
consider these documents for the purposes of this Rule 12(b)(6) motion.
with regards to this specific representation. (See dkt. 31 at 24-26.) Rather, Amec Foster
Wheeler’s arguments focus on TDT’s representations concerning how it planned to meet
that specific contractual requirement with the aid of a specific subcontractor. (See id. at
25-26.) These representations, however, relate to TDT’s obligations under the contract to
meet the Australian code requirement. As a result, they cannot be “wholly extraneous.”
TDT’s alleged failure to meet the Australian Code requirement is in essence a breach of
contract claim and cannot sustain a claim for fraud in the inducement.
Amec Foster Wheeler’s fraud in the inducement claim is much different than the
fraud in the inducement claim that survived a motion to dismiss in CDK Global, LLC v.
Tulley Auto. Grp., Inc., No. 15-3103, 2016 U.S. Dist. LEXIS 57186 (D.N.J. Apr. 29,
2016). In that case, CDK, a technology solutions company that develops and sells
automotive dealer management systems, approached Tulley offering one of its
management systems. See CDK, 2016 U.S. Dist. LEXIS 57186, at *3-4. Prior to an
agreement of sale, CDK represented to Tulley that the management system would work
for Tulley’s specific three-dealership business, would increase efficiency, and would
reduce costs. Id. at *4. Tulley relied on these representations and entered into a service
agreement. Id. at *4-5. After installation, Tulley began having problems with the
management system and ultimately filed suit. See id. at *5-7. CDK filed a motion to
dismiss, inter alia, Tulley’s fraudulent inducement claim in view of the integration clause
in the service agreement. Id. at *10-11.
The court found that the integration clause did not bar Tulley’s fraudulent
inducement claim because the alleged misrepresentations were extrinsic to the to the
service agreement. The court noted that the service agreement dealt primarily with the
terms of the lease, installation of software, and support service provided by CDK, but did
not speak specifically to Tulley’s particular business needs and how the management
system would work to meet them. Id. at *11.
Here, all of the alleged misrepresentations concern the same subject matter, TDT’s
ability to meet the Australian code requirement. Unlike the agreement in CDK, the
Australian code requirement is a contractual requirement expressly included in the
Further, although Optimil, a specific subcontractor, is not identified in the
Purchase Order, the Purchase Order includes a specific provision for the use and approval
of subcontractors. See Section I.B.1, supra. Nothing in the Purchase Order requires TDT
to use Optimil as a subcontractor for any particular purpose. In fact, the provision related
to subcontractors bars TDT’s ability to utilize a subcontractor without prior written
approval from Amec Foster Wheeler. (See dkt. 22-1 at 6 (“No part of the work shall be
sublet by [TDT] to another party at any tier except with the prior written approval of
[Amec Foster Wheeler].”)) The subcontractor provision also makes clear that TDT “shall
have the sole and full responsibility for fulfilling all of [TDT]’s obligations under this
Purchase Order.” “[I]t is manifestly unreasonable” for a party to rely on prior
representations when the express language of the contract is written “explicitly nullifying
any previous agreements, oral or written.” Alexander v. CIGNA Corp., 991 F. Supp.
427, 436 (D.N.J. 1998). “A contractual provision flatly contradictory to prior oral
assurances should cause most people – and particularly experienced, knowledgeable
business people – to pause.” Id. (quoting Elias Bros. Rests., Inc. v. Acorn Enters., Inc.,
831 F. Supp. 920, 924 (D. Mass. 1993)). Here, the Purchase Order contemplates the use
of subcontractors, but does not limit the subcontractors TDT may use to only Optimil.
TDT could arguably perform its obligations without the use of Optimil, or any
subcontractor, and satisfactorily perform under the terms of the Purchase Order. Thus,
TDT’s alleged representations about Optimil pertaining to its obligations to meet the
Australian code requirement are contradictory to the terms of the integrated writing. We
find that based on the integration clause and the provision of the Purchase Order
regarding the use of subcontractors, Amec Foster Wheeler’s reliance on TDT’s alleged
misrepresentations is not reasonable and therefore cannot sustain Amec Foster Wheeler’s
claim for fraud in the inducement.
Because the fraud claim is barred based on the integration clause, the Court need
not reach TDT’s additional arguments.
Dismissal of a count in a complaint with prejudice is appropriate if amendment
would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
Because we find Amec Foster Wheeler’s claim for fraud in the inducement is barred by
the integration clause of the Purchase Order, amendment is futile. Therefore, we will
dismiss the claim with prejudice.
For the reasons discussed herein, the Court will grant TDT’s Motion to Dismiss
with Prejudice. An appropriate Order follows.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: May 4, 2017
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