Azer Scientific Incorporated v. Quidel Corporation
MEMORANDUM OPINION. SIGNED BY HONORABLE JOHN M. GALLAGHER ON 1/18/23. 1/18/23 ENTERED AND COPIES E-MAILED.(er)
Case 5:21-cv-02972-JMG Document 103 Filed 01/18/23 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AZER SCIENTIFIC INCORPORATED,
Civil No. 5:21-cv-02972-JMG
January 18, 2023
Plaintiff Azer Scientific Incorporated alleges Defendant Quidel Corporation breached a
contractual agreement the Parties formed over email. Quidel contends the Parties never formed
an enforceable contract. In September of 2021, the Parties cross-moved for partial summary
judgment. On December 5, 2022, this Court found the Parties’ email correspondence on March
25, 2021 amounts to a binding contract. Thus, the Court found summary judgment appropriate in
Azer’s favor concerning the first element of Azer’s breach of contract claim. The Court also
granted summary judgment in favor of Quidel as to Azer’s unjust enrichment claim. The Court
found summary judgment was not warranted as to the Parties’ remaining breach of contract and
declaratory judgment claims. Accordingly, the Court granted in part and denied in part Quidel’s
Motion for Partial Summary Judgment, as well as it granted in part and denied in part Azer’s
Motion for Partial Summary Judgment. Before the Court is Quidel’s Motion for Reconsideration
and, in the alternative, a Motion for Certification of an Interlocutory Appeal and Stay of Action
regarding the Court’s Order and Opinion granting partial summary judgment. For the following
reasons, Quidel’s Motion for Reconsideration and its Motion for Certification of an Interlocutory
Appeal will be denied.
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Plaintiff Azer manufactures and supplies products for laboratories, including manual and
automated tube-filling services. Am. Compl., ECF No. 10 ¶2. Defendant Quidel develops and
manufactures diagnostic healthcare products. Def. Partial Summ. J., ECF No. 47-1 ¶1. In March
2021, the Parties began exploring a business relationship in which Azer would source certain
materials for Quidel’s COVID-19 test kits. Joint Appendix, ECF No. 48-6 at JA1010, K.S.
Richardson Dep. Tr. 24:3-19. As a result of this business relationship, Azer alleges Quidel
breached a contractual agreement the Parties formed over email.
On December 5, 2022, this Court denied in part and granted in part Quidel’s Motion for
Partial Summary Judgment, and denied in part and granted in part Azer’s Motion for Partial
Summary Judgment. ECF No. 66 (Memorandum Opinion); ECF No. 67 (corresponding Order).
In sum, this Court found the Parties’ email correspondence on March 25, 2021 amounts to a
binding contract.1 The lack of disputed facts concerning contract formation warranted a finding
on summary judgment.2 Quidel takes issue with this Court’s finding the Parties executed an
Accordingly, this Court denied Quidel’s Motion for Partial Summary Judgment concerning
Azer’s claims of breach of contract, anticipatory breach of contract, and declaratory judgment—
all argued based on Quidel’s main contention the Parties email correspondence did not amount to
a binding contract. And this Court granted summary judgment in favor of Quidel as to Azer’s
unjust enrichment claim. Lastly, the Court granted Azer’s Motion for Partial Summary Judgment
concerning the first element of Azer’s breach of contract claim—specifically, finding a binding
contract existed. Factual disputes prevented summary judgment as to the second element of Azer’s
breach of contract claim—breach—and its corresponding request for declaratory relief. See
generally ECF No. 66.
In its Opinion, this Court found “the Parties agree on the underlying facts but not whether the
facts support the existence of an enforceable contract formed on March 25, 2021.” ECF No. 66 at
12. Thus “‘[u]nder Pennsylvania law[,] where the facts are in dispute, the question of whether a
contract was formed is for the jury to decide.’” Okna Windows v. Diversified Structural
Composites, No. CV 18-2444, 2019 WL 3777632, at *4 (E.D. Pa. Aug. 12, 2019) (citing Ecore
Int'l, Inc. v. Downey, 343 F. Supp. 3d 459, 487 (E.D. Pa. 2018)). “‘However, [t]he question of
whether an undisputed set of facts establishes a contract is a matter of law.’” Id.
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enforceable contract through their email correspondence on March 25, 2021. Accordingly, twentyfive days after the Court filed its Memorandum Opinion (“the Opinion”) and corresponding Order
(“the Order”) on the Parties’ cross-motions for partial summary judgment (see ECF Nos. 66, 67),
Quidel filed a Motion for Reconsideration and, in the alternative, a Motion for Certification of an
Interlocutory Appeals and Stay of Action (see Def.’s Mot. for Recons., ECF No. 90). Azer opposes
both of Quidel’s motions. See Pl.’s Resp. in Opp’n. Def.’s Mot. for Recons., ECF No. 92.
a. Motions for Reconsideration
i. Procedural Rules
The Local Rules of Civil Procedure for the U.S. District Court for the Eastern District of
Pennsylvania provide: “Motions for reconsideration . . . shall be served and filed within fourteen
(14) days after the entry of the order concerned, other than those governed by Federal Rule of Civil
Procedure 59(e).” E.D. Pa. Local Rule 7.1(g) (emphasis added). “Federal Rule of Civil Procedure
59(e) concerns motions to amend or alter a judgment and thus does not apply to interlocutory
decisions.” Robinson v. Fair Acres Geriatric Ctr., No. CV 15-06749, 2020 WL 1313721, at *15
(E.D. Pa. Mar. 20, 2020), aff'd, 842 F. App'x 779 (3d Cir. 2021) (citing Bausch & Lomb Inc. v.
Moria S.A., 222 F. Supp. 2d 616, 669 (E.D. Pa. 2002)). And “[b]ecause partial summary judgment
orders are interlocutory decisions, a party against whom summary judgment was entered against
as to less than all claims against all parties may not seek relief under Rule 59(e).” Id. (citing FED.
R. CIV. P. 54(b); Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 143-44 (3d Cir. 2001)).
Case 5:21-cv-02972-JMG Document 103 Filed 01/18/23 Page 4 of 17
ii. Substantive Law
“A motion for reconsideration requires the movant to show (1) an intervening change in
the controlling law; (2) new evidence that was not available when the court issued its order, or (3)
the need to correct a clear error of law or prevent manifest injustice.” Gibson v. State Farm Mut.
Auto. Ins. Co., 994 F.3d 182, 190 (3d Cir. 2021) (citing Lazaridis v. Wehmer, 591 F.3d 666, 669
(3d Cir. 2010)). “[M]otions for reconsideration may not be used to give a litigant a ‘second bite
at the apple.’” United States ex rel. Sirls v. Kindred Healthcare, Inc., 536 F. Supp. 3d 1, 4 (E.D.
Pa. 2021) (internal citations omitted). And “[b]ecause of the interest in finality . . . courts should
grant motions for reconsideration sparingly.” Bausch, 222 F. Supp. 2d at 669 (citing Rottmund v.
Continental Assurance Co., 813 F.Supp. 1104, 1107 (E.D.Pa.1992)).
Here, Quidel avers
reconsideration is proper due to the need to correct a clear error of law and prevent manifest
b. Motions for Certification of an Interlocutory Appeal
“A district court has discretion under 28 U.S.C. § 1292(b) to decide whether or not to
certify a case for immediate appeal.” Titelman v. Rite Aid Corp., No. CIV.A. 00-2865, 2002 WL
32351182, at *1 (E.D. Pa. Feb. 5, 2002) (citing Katz v. Carte Blanche Corp., 496 F.2d 747, 754
(3d Cir.1974) (en banc)). Under Section 1292(b), a district court may certify an order for
interlocutory appeal where: (1) the order ““involves a controlling question of law”; (2) “there is
substantial ground for difference of opinion” on that question; and “an immediate appeal . . . may
materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). And yet,
“[e]ven if the moving party satisfies the statutory criteria, the district court “possesses discretion
to deny certification of an [interlocutory] appeal.” Knopick v. Downey, 963 F. Supp. 2d 378, 398
(M.D. Pa. 2013) (internal citations omitted). Furthermore, “[i]t has . . . been cautioned that
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certification is the exception, to be used only in the rare case where an immediate appeal would
avoid expensive and protracted litigation.” Titelman, 2002 WL 32351182 at *1 (citing Milbert v.
Bison Labs., Inc., 260 F.2d 431, 433 (3d Cir.1958); Orson, Inc. v. Miramax Film Corp., 867
F.Supp. 319, 321 (E.D.Pa.1993)).
a. Motion for Reconsideration
The Court denies Quidel’s Motion for Reconsideration because it is untimely under this
district’s local rules. Further, Quidel does not meet the high standards movants must show to
Under this district’s local rules, Quidel had fourteen days to file its motion for
reconsideration of the Court’s Order and Opinion granting partial summary judgment. E.D. Pa.
Local Rule 7.1(g). Quidel filed its Motion for Reconsideration twenty-five days after the Court
filed its Opinion and corresponding Order. See ECF No. 90 (Quidel’s Motion for Reconsideration
filed on December 30, 2022); ECF No. 66, 67 (the Court’s Memorandum Opinion and
corresponding Order granting in part and denying in part Quidel and Azer’s cross-motions for
partial summary judgment on December 5, 2022). Quidel claims its Motion for Reconsideration
is timely, even under Local Rule 7.1(g), because the Rule’s fourteen-day deadline does not govern
motions “governed by Federal Rule of Civil Procedure 59(e).” E.D. Pa. Local Rule 7.1(g); see
also Def.’s Reply Br. in Supp. of Mot. for Recons., ECF No. 102 at 1-3.
The Court is not persuaded Quidel’s Motion for Reconsideration is governed by Federal
Rule of Civil Procedure 59(e). Federal district courts in the Eastern District of Pennsylvania have
found “Federal Rule of Civil Procedure 59(e) concerns motions to amend or alter a judgment and
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thus does not apply to interlocutory decisions.” Robinson, 2020 WL 1313721 at *15 (denying
plaintiff’s motion for reconsideration of the court’s grant of partial summary judgment and
resulting dismissal of two defendants because the motion of reconsideration was untimely under
Local Rule 7.1(g)); see also Bridges v. Colvin, 136 F. Supp. 3d 620, 629 (E.D. Pa. 2015), aff'd sub
nom. Bridges v. Comm'r Soc. Sec., 672 F. App'x 162 (3d Cir. 2016) (finding Federal Rule of Civil
Procedure 59(e) did not govern an appeal of an interlocutory order); Jairett v. First Montauk Sec.
Corp., 153 F. Supp. 2d 562, 579 (E.D. Pa. 2001) (finding Rule 59(e) did not apply to a motion for
reconsideration seeking the court to reconsider an interlocutory decision).
In Bridges v. Colvin, the district court directly analyzed the present issue of whether
Federal Rule of Civil Procedure 59(e)—or Federal Rule of Civil Procedure 60(b)—applied to
plaintiff’s motion for reconsideration. 136 F. Supp. 3d at 629. The movant requested the court
reconsider its dismissal of all but one count in an amended complaint. Id. The court found Rule
59(e) did not govern plaintiff’s motion for reconsideration because the court’s Order was not a
“judgment” as defined by the Federal Rules of Civil Procedure. Id. “The Rules define the word
‘judgment’ to mean ‘a decree and any order from which an appeal lies.’” Id. (citing FED. R. CIV.
P. 54(a)). The court found “[a]n order dismissing some, but not all, of a party’s claims is neither
a decree nor an order from which an appeal lies; rather, such an order is interlocutory in nature.”
Id. (citing Andrews v. United States, 373 U.S. 334, 340, (1963); Pellicano v. Blue Cross Blue
Shield Ass'n, 540 Fed.Appx. 95, 97 n. 4 (3d Cir.2013) (internal citations omitted)). And thus
“neither Rule 59(e) nor 60(b) applies . . . because the order [plaintiff] seeks to have reconsidered
is not a final judgment or order but rather an interlocutory decision.” Id. (citing Jairett, 153
F.Supp.2d at 579 (E.D.Pa.2001); Am. Guar. & Liab. Ins. Co. v. Fojanini, 99 F.Supp.2d 558, 560
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Here, the Court similarly finds Rule 59(e) does not apply to Quidel’s Motion for
Reconsideration of the Court’s Order. Quidel correctly asserts “district courts in this Circuit have
considered motions for reconsideration of partial summary judgment under Rule 59(e).” ECF No.
102 at 3. But none of the cases Quidel cites in support of its assertion directly address the issue of
whether Rule 59(e) applies to interlocutory orders or decisions.3 And the Court finds it persuasive
that “[b]ecause partial summary judgment orders are interlocutory decisions, a party against whom
summary judgment was entered against as to less than all claims against all parties may not seek
relief under Rule 59(e).” Robinson, 2020 WL 1313721, at *15 (citing FED. R. CIV. P. 54(b);
Berckeley, 259 F.3d at 143-44).
Because Rule 59(e) does not govern Quidel’s Motion for Reconsideration in this case,
Quidel’s filing of its Motion for Reconsideration beyond the local rules’ fourteen-day deadline is
untimely. Thus the Court has discretion over whether to reach the merits of Quidel’s motion given
it is more than nine days late, filed a few weeks before trial, and provides no reasoning for the
See generally e.g., Maxwell v. Nutter, No. CIV.A. 11-7565, 2015 WL 3536581 (E.D. Pa. June 4,
2015); Stroud v. Boorstein, No. CIV.A. 10-3355, 2014 WL 2957708, at *4 (E.D. Pa. June 30,
2014); Gen. Refractories Co. v. Travelers Ins. Co., No. CIV. A. 88-2167, 1999 WL 80287 (E.D.
Pa. Feb. 4, 1999); Est. of Schultz v. Potter, No. CIV.A. 05-1169, 2008 WL 4790653 (W.D. Pa.
Oct. 30, 2008), aff'd in part, remanded in part, 349 F. App'x 712 (3d Cir. 2009); Dougherty v.
Farmers New Century Ins. Co., No. 3:CV 06-98, 2007 WL 9758445, at *7 (M.D. Pa. June 27,
2007). In fact, one of the cases Quidel cites acknowledges motions for reconsideration of orders
granting summary judgment are interlocutory and thus Rule 59(e) or Rule 60(b) do not apply. See
Stroud, 2014 WL 2957708, at *2 n. 5 (citing Young v. Sch. Dist. of Phila., No. 06–4485, 2010 U.S.
Dist. LEXIS 24733, at *3–4, 2010 WL 1006724 (E.D.Pa. Mar. 16, 2010)).
See Bridges, 136 F. Supp. 3d at 629 (finding “[t]he Court need not reach the merits of Plaintiff’s
motion for reconsideration . . . because Plaintiff’s motion is untimely”). 136 F. Supp. 3d at 629.
In Bridges, the plaintiff filed a motion to reconsider one day late. Id. And, as with Quidel,
“[p]laintiff neither acknowledge[d] that his motion [was] untimely nor attempt[ed] to invoke the
Court’s discretion to depart from the local procedural rules.” Id. The court found the one-day
delay enabled the Court to “deny Plaintiff’s motion on this basis.” Id. Nevertheless, the court
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ii. Clear Error
Even assuming the timeliness of Quidel’s Motion for Reconsideration, Quidel’s factual
and legal arguments do not meet the clear error standard required to reconsider the outcome.
Accordingly, granting reconsideration of this issue is not warranted.
Quidel emphasizes, when ruling on a motion for summary judgment, a district court must
“view all the facts in the light most favorable to the nonmoving party and draw all inferences in
that party’s favor.” ECF No. 66 at 10 (citing Physicians Healthsource, Inc. v. Cephalon, Inc., 954
F.3d 615, 618 (3d Cir. 2020)). Quidel also provides “summary judgment must be denied if there
is evidence on which a ‘reasonable jury could return a verdict for the nonmoving party.’” Id.
Thus, Quidel’s main argument the Court’s Opinion contains clear errors of law and fact rests on
its assertion a reasonable jury could find no contract was formed on March 25, 2021. ECF No. 90
at 9. Quidel points to facts in the record it avers show: (1) Quidel, through Ms. Kyra Bader, had
no intent to be bound by the contract, (2) Quidel needed higher-up approval for a twelve-month
commitment, (3) the existence of disputed facts, and (4) the need to consider the Parties’ pre- and
post-March 25, 2021 conduct.
First, Quidel avers a reasonable jury could find Quidel, through its agent Ms. Bader, did
not intend to enter a contract on March 25, 2021. Quidel points to the Court’s findings in its
Opinion to show a factual dispute concerning Ms. Bader’s intent.5 But, as Azer correctly asserts,
provided brief analysis on the motion for reconsideration’s standards to find “no clear error of law
or manifest injustice in the Order, nor any other basis to reconsider the outcome.” Id.
Quidel provides, “Specifically, the Court wrote ‘Mr. Ardekani later testified he believed
the commitment was a contract at the time of receiving Ms. Bader’s email response. . . . On the
other hand, Ms. Bader later testified her written confirmation ‘was to confirm the volume and
moving forward with the process of ordering the equipment and the qualification of Azer.’” ECF
No. 90 at 9-10 (citing ECF No. 66 at 6, n.8)). But Quidel failed to provide the subsequent sentence
in the Court’s Opinion: “Ms. Bader also acknowledged that, ‘as a result of this email, Azer relied
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facts concerning Ms. Bader’s subjective intent do not undermine the Court’s finding of a binding
Next, Quidel submits a reasonable jury could find Quidel expressed the need for
conditions—more specifically, approval from higher-ups—before entering a contract concerning
a twelve-month “commitment” for the price, subject matter, and quantity described in the emails.
See ECF No. 90 at 10. Quidel points to numerous correspondence around March 17, 2021
expressing Quidel’s desire for certain conditions (such as higher-up approval, coordination of a
supply agreement, etc.), but none of these communications prevent Quidel from committing to the
essential terms as expressed on March 25, 2021. See id. at 10-11. On March 25, 2021, Azer
explicitly requested Quidel’s written confirmation and commitment to move forward with the
project; and Quidel sent written confirmation with no subsequent communication suggesting
internal approval was still pending nor required.7
The Parties’ continued discussions and
negotiations concerning supply agreements and purchase orders do not negate the Parties’ ability
to enter a contract on March 25, 2021. See ECF No. 92 at 8 (“[A] contract is formed even though
on Quidel’s commitment for a volume of 2.5 million per week, 10 million per month.” ECF No.
66 at 6, n.8. Ms. Bader’s subjective intent is minimally relevant to the contract formation issue.
And, nevertheless, the Court considered these facts in its finding the Parties agreed to the subject
matter, quantity, duration, and price to form a contract on March 25, 2021.
ECF No. 92 at 9. “In assessing intent, the object of inquiry is not the inner, subjective intent of
the parties, but rather the intent a reasonable person would apprehend in considering the parties’
behavior.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 582 (3d Cir.2009) (citing
Ingrassia Constr. Co., Inc. v. Walsh, 486 A.2d 478, 483 (Pa. Super. Ct. 1984)). “Accordingly, a
true and actual meeting of the minds is not necessary to form a contract.” Id.
See ECF No. 66 at 14. The Court also finds Azer’s contention persuasive that Ms. Bader had
“apparent authority” to bind Quidel on March 25, 2021 (see ECF No. 92 at 10) and “Quidel
internally approved the terms of the March 25 contract four days later” (id. at 11). See In re
Rotavirus Vaccines Antitrust Litig., 30 F.4th 148, 157 (3d Cir. 2022) (“In Pennsylvania, ‘apparent
authority [may] be established with a showing of: (1) limited authority given to the agent by the
principal; and (2) conduct of the agent which demonstrates to the third-party the agent's apparent
authority to bind the principal.’”) (internal citation omitted)).
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[the parties] intend to adopt a formal document with additional terms at a later date.”) (quoting
Storms v. O’Malley, 779 A.2d 548, 557 (Pa. Super. Ct. 2001) (internal citations omitted)).
Quidel also contends the Court overlooked various factual disputes. See ECF No. 90 at
12-13. But the disputed facts raised largely concern: (1) the subjective intent of Quidel’s employee
concerning entering the contract, and (2) the Parties’ post-March 25, 2021 conduct. See id. As
stated, the subjective intent of the Parties is not material to the formation of a contract. And
similarly, the circumstances of the Parties’ post-March 25, 2021 behavior is minimally relevant
because: (1) the facts merely show the Parties engaging in further negotiations of terms in the form
of purchase orders and supply agreements—which is behavior that does not necessarily contradict
a pre-existing contract containing the agreement’s essential terms—and (2) Quidel cites to cases
with implied contracts—not express written contracts—to conclude a party’s pre-and post-contract
behavior is relevant to determine an objective manifestation of assent. See e.g., Universal Atl.
Sys., Inc. v. Honeywell Int’l, Inc., 388 F. Supp. 3d 417 (E.D. Pa. 2019) (determining whether a
“series of interactions and communications between the parties” created an implied-in-fact
contract between the parties). And further, the Court did address the Parties’ pre-and post-contract
behavior and found it to be consistent with the formation of a contract containing essential terms
on March 25, 2021. See ECF No. 66 at 15-16 n. 14.
Therefore, Quidel raises factual and legal arguments previously considered and analyzed
by the Court in its Opinion. The Court applied the proper legal standards to the facts at issue.
Thus the Court is not inclined to give Quidel “a second bite at the apple” concerning its arguments
raised at summary judgment. Kindred, 536 F. Supp. 3d at 4 (E.D. Pa. 2021).
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iii. Necessary to Prevent Manifest Injustice
Quidel further submits, in the event the Court does not find clear error, the Court needs to
specify the terms of the contract “to prevent manifest injustice.”8 On the other hand, Azer contends
a clarification of the contract’s terms is unnecessary because “. . . the emails speak for themselves.”
ECF No. 92 at 11. For the Court to find manifest injustice, there must be “a fundamental flaw in
the court's decision that without correction would lead to a result that is both inequitable and not
in line with applicable policy.” Sims Buick-GMC Truck, Inc. v. Gen. Motors LLC, No. 4:14 CV
2238, 2017 WL 7792553, at *3 (N.D. Ohio Mar. 1, 2017), aff'd, 876 F.3d 182 (6th Cir. 2017)
(citing In re Bunting Bearings Corp., 321 B.R. 420, 423 (N.D. Ohio)).
In its Opinion, the Court provided “[t]he Parties’ March 25, 2021 email exchange amounts
to a valid contract because the Parties intended to be bound to a commitment containing clear and
sufficiently definite essential terms.” ECF No. 66 at 16. The Court did not explicitly outline the
total price of the contract besides acknowledging the Parties considered formal pricing proposals
throughout emails before, and on the day of, March 25, 2021. See e.g., ECF No. 66 at 3 n. 2, 4 n.
6, 5, 14 n. 13. The March 25, 2021 emails make clear Azer would supply Quidel with 2.5 million
tubes per week (or ten million tubes per month) for twelve months. Id. at 5-6. And the March 25,
2021 emails include Azer’s formal pricing proposal. Id. at 5 (citing ECF No. 48-4 at JA176-77).
Specifically, Quidel argues:
[T]he Court [should] amend or alter its Opinion and Order to provide clarity
regarding the sources and complete terms of the parties’ purported March 25 email
contract. Without that clarification, Quidel will suffer manifest injustice as it is
forced to try a case without understanding the full implications of the Court[‘s][sic]
summary judgment ruling.
ECF No. 90 at 16-17.
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The record—including the Parties’ email correspondence on March 23rd, March 24th, and March
25th—shows the Parties consistently provided quotes for tube filling and reagent formation at a
rate of $0.0808 per tube for the filling, and a rate of $0.007175 for the reagent formulation—for a
subtotal of $0.087975 per tube.9 At a rate of $0.087975 per tube, as agreed to by the Parties, the
total contract price for 120 million tubes over twelve months would equal $10,557,000.00. This
total contract price is consistent with Azer’s proffered total contract price in its Motion for Partial
Summary Judgment (see ECF No. 48-1 at 9) and its Motion in Opposition of Quidel’s Motion for
Reconsideration (see ECF No. 92 at 12). While the Court did not include this exact calculation in
its Opinion, the Parties can calculate the price based on the Parties’ emails referenced in the
Opinion and included in the record. It is unclear why Quidel’s need for clarification on this issue
would rise to the standard of “manifest injustice” and thus necessitate reconsideration.
In sum, Quidel raises factual issues and legal arguments previously considered by the Court
in its Opinion. The Court does not find its analyses of these issues meet a standard of clear error
nor manifest injustice to warrant reconsideration. Given the high burden on the movant—as well
Admittedly, the contract’s cost breakdown and total price are a little tangled throughout the
Parties’ email correspondence. Concerning the cost breakdown, Azer’s formal quotes (see ECF
No. 48-4 at JA165 (March 23, 2021 correspondence); JA172; and JA177)) show the filling costs
in a “price per case” measurement instead of the “price per tube” measurement used for the reagent
formation. But Azer’s Statement of Undisputed Facts provides the “price per case” cost of $404.00
for the rate of filling is consistent with a “price per tube” cost of $0.0808—a rate repeatedly
acknowledged by the Parties. See ECF No. 48-2 at 8 n. 5; see e.g., ECF No. 48-4 at JA165 (formal
quote) compare id. at JA167 (email with chart quotes showing $0.0808). Next, the total
calculations shown in Azer’s formal quotes—and scrutinized by Quidel in its Motion for
Reconsideration (see ECF No. 90 at 16)—are higher than the total contract amount put forward by
Azer because the formal quotes provide a different quantity (156 million tubes) than what is
ultimately agreed upon (120 million tubes).
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as established policy against providing litigants a chance to relitigate issues—the Court denies
Quidel’s Motion for Reconsideration.
b. Motion for Certification of an Interlocutory Appeal and Stay of this Action
In the event the Court denies Quidel’s Motion for Reconsideration, Quidel moves for an
order certifying an interlocutory appeal of the Court’s Order and Opinion to the U.S. Court of
Appeals for the Third Circuit and a stay of this action pending resolution of the appeal. See 28
U.S.C. § 1292(b). The Court finds Quidel has likewise failed to meet its heavy burden under
As stated, a district court may certify an order for interlocutory appeal where: (1) the order
“involves a controlling question of law”; (2) “there is substantial ground for difference of opinion”
on that question; and “an immediate appeal . . . may materially advance the ultimate termination
of the litigation.” Id. “The moving party bears the burden of demonstrating that ‘exceptional
circumstances justify a departure from the basic policy against piecemeal litigation and of
postponing appellate review until after the entry of a final judgment.’” Titelman, 2002 WL
32351182, at *1 (quoting Rottmund, 813 F.Supp. at 1112).
i. Controlling Question of Law
“With respect to the first element, an interlocutory Order ‘involves a controlling question
of law if either (1) an incorrect disposition would constitute reversible error if presented on final
appeal, or (2) the question is ‘serious to the conduct of the litigation either practically or legally.’”
Marcelle v. City of Allentown, No. 07-CV-4376, 2010 WL 3606405, at *2 (E.D. Pa. Sept. 16, 2010)
(internal citation omitted).
Quidel contends the Court erred in its Opinion because “[(1)]
reasonable minds could differ as to whether both parties manifested an intent to be bound by two
March 25, 2021 emails and [(2)] whether those two emails include all of the essential terms.” ECF
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No. 90 at 18. If the U.S. Court of Appeals reversed the Court’s findings on these questions, the
Court would be required to reverse and remand its Opinion granting summary judgment on the
first element of the breach of contract claim, as well as Azer’s unjust enrichment claim. Quidel
also asserts the contract issue is “serious to the conduct of the litigation either practically or legally”
because the existence of a contract goes to the heart of the present matter and thus greatly impacts
the structure and content of trial. Id.
Nevertheless, the U.S. Court of Appeals for the Third Circuit has also found Section
1292(b) “is not designed for review of factual matters but addresses itself to a ‘controlling question
of law.’” Link v. Mercedes-Benz of N. Am., Inc., 550 F.2d 860, 863 (3d Cir. 1977). And “[c]ourts
in this district have held that although a question appears to be a controlling question of law,
questions about a district court's application of facts of the case to established legal standards are
not controlling questions of law for purposes of section 1292(b).” Juice Ent., LLC v. Live Nation
Ent., Inc., 353 F. Supp. 3d 309, 312–13 (D.N.J. 2018) (internal citations omitted). In the present
action, this Court applied established legal standards to the highly factual issue of contract
formation. See ECF No. 66 at 12-17. Thus the Court’s fact-dependent analysis would likely not
be considered a controlling question of law under Section 1292(b).
ii. Substantial Ground for Difference of Opinion
Next, “[a] ‘substantial ground for difference of opinion’ must arise out of doubt as to the
correct legal standard, such as conflicting precedent, the absence of controlling law, or complex
statutory interpretation.” Consumer Fin. Prot. Bureau v. Navient Corp., 522 F. Supp. 3d 107, 113
(M.D. Pa. 2021).
The elements of breach of contract claims are well established under
Pennsylvania law and thus do not present a substantial ground for difference of opinion. See e.g.,
Arrington v. Sweet Home Primary Care, LLC, No. CV 21-2677, 2022 WL 3647821, at *3 (E.D.
Case 5:21-cv-02972-JMG Document 103 Filed 01/18/23 Page 15 of 17
Pa. Aug. 24, 2022) (“Under Pennsylvania law, ‘[i]t is well-established that three elements are
necessary to plead a cause of action for breach of contract: (1) the existence of a contract, including
its essential terms, (2) a breach of the contract; and, (3) resultant damages.’”); Turner v. Nunez,
No. 19-CV-5489, 2019 WL 6353231, at *2 (E.D. Pa. Nov. 26, 2019) (“In Pennsylvania, as
elsewhere, it is well-established that the first of three elements needed to prevail on a breach of
contract action is the existence of a contract.”). And “[w]hether a set of facts establishes a contract
is a legal determination.” MCMP Inc. v. Gelman, No. 1386 WDA 2016, 2017 WL 4861626, at *3
(Pa. Super. Ct. Oct. 26, 2017) (internal citation omitted). Quidel does not show a substantial
ground for difference of opinion on the present contract formation issue—Quidel merely disputes
the Court’s application of settled law to the facts at issue. Likewise, Quidel’s contention “the
Court overlooked/and or ignored key evidence concerning the parties’ intent, and further failed to
describe what ‘sufficient definite essential terms’ were included in the contract’” does not present
a substantial ground for difference of opinion—and merely attempts to relitigate its previous
arguments. ECF No. 90 at 19; see also United States v. NYSARC, Inc., No. 03 CIV. 7250 (SHS),
2010 WL 11583434, at *1 (S.D.N.Y. Nov. 17, 2010) (“Section 1292(b) is not a vehicle for
relitigating a panoply of arguments already made before this Court.”). Thus this factor weighs
against granting an interlocutory appeal.
iii. Materially Advance the Ultimate Termination of the Litigation
“Finally, a [Section] 1292(b) certification ‘materially advances the ultimate termination of
the litigation’ where the interlocutory appeal eliminates: ‘(1) the need for trial; (2) complex issues
that would complicate the trial; or (3) issues that would make discovery more costly or
burdensome.’” Consumer, 522 F. Supp. 3d at 114. Quidel avers a reversal of the Court’s finding
of an enforceable contract could cause the Parties to “re-try the case” and thus waste judicial time
Case 5:21-cv-02972-JMG Document 103 Filed 01/18/23 Page 16 of 17
and resources on the upcoming trial. ECF No. 90 at 20. But the possibility of a second trial—on
its own—is not sufficient to grant an immediate appeal. Titelman, 2002 WL 32351182, at *3
(“Although some duplicative discovery and even a second trial might occur if the Court's Order is
overturned on appeal after the contract claims have been fully adjudicated, this possibility must be
weighed against the possibility that the Third Circuit would not reverse, meaning that the case
would be unnecessarily delayed pending the interlocutory appeal.”).
The quickly approaching trial date also cuts against Quidel. “Where discovery is complete
and the case is ready for trial[,] an interlocutory appeal can hardly advance the ultimate termination
of the litigation.” Rottmund, 813 F. Supp. at 1112 (citing Caldwell v. Seaboard Coastline R.R.,
435 F.Supp. 310, 312 (W.D.N.C.1977); see also Lorentz v. Westinghouse Elec. Corp., 472 F.Supp.
954, 956 (W.D.Pa.1979) (denying certification when discovery was complete and the trial date fell
two months away)). And “[t] here are numerous cases where the courts have refused certification
for interlocutory orders because the question involved in the interlocutory appeal was only one of
many triable issues.” Lorentz, 472 F. Supp. at 956 (collecting cases). Here, the Parties have
completed discovery and are preparing for a trial to take place in less than three weeks. Issues
surrounding Azer’s breach of contract claim and damages remain. Therefore, Quidel has not met
its burden to show an immediate appeal materially advances the ultimate termination of litigation
in this matter.
Therefore, the Court denies Quidel’s Motion for Interlocutory Appeal because Quidel has
not satisfied its statutory burden nor presented “an exceptional circumstance” to depart from the
Court’s litigation timeline.
Case 5:21-cv-02972-JMG Document 103 Filed 01/18/23 Page 17 of 17
This Court finds Quidel has not met its statutory and legal burdens as to both its Motion
for Reconsideration and its Motion for Certification of an Interlocutory Appeal and Stay of Action.
Accordingly, the Court denies both motions.
An appropriate Order follows.
BY THE COURT:
/s/ John M. Gallagher
JOHN M. GALLAGHER
United States District Court Judge
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