The opinion of the court was delivered by: Louis H. Pollak, J.
This dispute arises from an alleged underestimate of the weight of two convection modules that plaintiff, a trucking company, hauled from Locust Grove, Oklahoma to Alberta, Canada. Plaintiff Robbins Motor Transportation, Inc. ("Robbins" or "RMT") alleges that one of the two modules weighed 245,800 pounds, rather than 220,000 pounds as estimated by defendants, and that this discrepancy of 25,800 pounds cost plaintiff $154,739.80 in extra transportation services, permits, detention and delay. See First Amended Complaint ¶¶ 20-22 (Docket No. 35, filed Nov. 11, 2007). Plaintiff has sued three defendants: Express Metal Fabricators, Inc. ("Express Metal"), who manufactured the equipment in Oklahoma; Translink, Inc. ("Translink"), a freight broker who, after being hired by Express Metal to arrange shipping of the equipment, contracted with plaintiff for plaintiff to haul the two loads of equipment from Oklahoma to Canada;*fn1 and Technip USA Corp. ("Technip"), the purchaser of the equipment and the party to whom Robbins delivered the equipment in Canada.
In its first amended complaint, plaintiff has pled three causes of action: (1) breach of contract; (2) negligent misrepresentation, fraud, and breach of contract; and (3) violation of the Interstate Commerce Act, 49 U.S.C. §§ 10741, 10701, 10761-62. See First Amended Complaint ¶¶ 23-45. Plaintiff's federal cause of action is based on statutes that do not apply to this case. See Section IV.3, infra. Accordingly, this court has no jurisdiction arising under federal law and instead exercises its diversity jurisdiction pursuant to 28 U.S.C. § 1332.*fn2
Before this court are (1) Defendant Technip's motion for summary judgment (Docket No. 47, filed April 2, 2008); (2) Defendant Express Metal's motion to dismiss for lack of personal jurisdiction or, in the alternative, for summary judgment on the merits (Docket No. 56, filed May 20, 2008); (3) Defendant Translink's motion for summary judgment (Docket No. 57, filed May 20, 2008); and (4) plaintiff's cross-motions for summary judgment as to defendants Express Metal and Translink (Docket No. 62, filed June 19, 2008). We also consider all of the reply briefs filed by the various parties. See Docket Nos. 52 (plaintiff's reply to Technip's motion), 54 (Technip's reply to plaintiff's reply),*fn3 55 (plaintiff's reply to Technip's reply), 62 (plaintiff's reply to Translink's and Express Metal's motions), 69 (Translink's reply to plaintiff's cross-motion), 70 (Express Metal's reply to plaintiff's cross-motion).
At the heart of the dispute are three contracts. First, Technip contracted with Express Metal for Express Metal to manufacture two convection modules. Technip planned to install these modules at an oil-extraction facility that Technip was building in Alberta, Canada. As part of its performance under this contract, Express Metal was required to deliver the completed modules to the facility in Alberta. Second, Express Metal contracted with freight broker Translink for Translink to arrange for the moving of the modules from Oklahoma to Canada. Third, Translink contracted with Robbins for Robbins to haul the modules via truck from Oklahoma to Canada.
There are no other instances of direct contractual privity between the parties in this litigation. The only contract signed by plaintiff Robbins is the "Truck Brokerage Trip Contract" (the "Contract") between Robbins and Translink. See Complaint Exh. 4 (Docket No. 1, filed Jan. 12, 2007). Express Metal paid Translink to arrange for the trucking services, and Translink then paid Robbins for doing the actual hauling. See Deposition of Calvin Williams, Docket No. 47 Exhibit B at 9.
Robbins has provided three documents that it alleges govern its relationship with Translink. The first, entitled "Terms and Conditions," states in pertinent part:
Reliance by RMT: RMT may rely on information. or representations, whether oral or in writing, of Shipper with regard to the Goods and shall make and have no responsibility to make any independent inquiry or investigation regarding the Goods, including, without limitation, the size, dimensions, weight, center of gravity, stability, durability, or transportability or any other specifications ("Specifications"). . . . Shipper shall indemnify RMT and hold RMT harmless from any against any and all damage, liability, judgment, suit, claim, cost or expense (including, without limitation, reasonable attorneys' fees and court costs) arising directly or indirectly, in whole or in part, from any variation in the Specifications. Shipper represents and warrants to RMT the complete accuracy and correctness of the Specifications and that the Specifications will not vary even in an immaterial fashion.
The introductory paragraph of these terms and conditions states that the terms and conditions "shall apply to the transaction described in the accompanying quotation (the "Quotation") between Robbins Motor Transportation, Inc. ("RMT") and the entity shown as the shipper (the "Shipper") thereon." However, the price quotation attached by Robbins, which is addressed to Translink, does not list any party as the "shipper." See id. The price quotation is addressed to Translink. It makes no reference to either Technip or Express Metal.
Second, Robbins has provided a document entitled "Transportation Estimate/Purchase Agreement." See id. That document does not list a "shipper," but it does list an "Origin" ("Express Metal Fabricators"), a "Destination" ("Technip USA Corp."), and a party designated as "Bill To" ("Trans Link Inc."). The "Transportation Estimate/Purchase Agreement" states that it "is to be considered a Transportation Estimate" until "signatures are provided," at which point it "changes from a Transportation Estimate to a Purchase Agreement." It is signed "Agreed to" by Ted Vogle, president of Translink, but it is not signed by any Robbins representative.
The Transportation Estimate/Purchase Agreement contains the following "Governing Rules and Regulations":
Transportation is made in accordance to Robbins Motor Transportation, Inc. standard terms and conditions and "Uniform Straight Bill of Lading." The signature by carrier's representative on any other Bill of Lading other than the uniform straight Bill of Lading acknowledges only the carrier's acceptance of the freight and not its terms and conditions.
In a declaration, however, Vogle, Translink's president, states that terms and conditions were neither attached to nor part of the transportation agreement at the time that he signed it and that he has not assented to those terms and conditions since. See Docket No. 69 Exh. 6 ¶¶ 2-4.
Third, Robbins has provided a "Truck Brokerage Trip Contract" signed by representatives of Robbins and Translink. In that contract, Robbins is called the "carrier" and Translink is called the "broker." Express Metal and Technip are referred to as the places of "pick-up" and "delivery," respectively.
Robbins charged and set its price for shipping the two modules -- $436,000 ($218,00 per module) -- in part according to the weight of the two modules that it contracted to transport from Express Metal to Technip. Express Metal and Translink both told Robbins that the weights of the two modules were approximately 220,000 pounds (Module 1) and 230,000 pounds (Module 2), respectively. Robbins alleges that the weight of one of the modules was correctly estimated but that the other module weighed 25,800 pounds more than estimated. According to Robbins, the extra weight resulted in $154,739.80 of additional costs stemming from the need for additional crane services, trucking services, bucket services, special required permits, and detention and delay. Defendants Express Metal and Translink challenge the sufficiency of the evidence presented by Robbins in support of the alleged weight discrepancy and resultant damages, see Docket No. 69 ¶¶ 7-8, but present no independent contradictory evidence.
Regarding the communication of the weight figures, the deposition testimony establishes, inter alia, that 1) Robbins obtained the weight figures from Translink; 2) Translink obtained the weight figures from Express Metal; 3) Robbins also obtained the weight figures directly from Express Metal; and 4) Technip did provide a weight estimate to Express Metal, but that estimate was never communicated to either Translink or Robbins, nor was it relied upon by Express Metal;*fn4 Express Metal did, however, use Technip's technical drawings of the modules.*fn5
Joe Robbins, president of Robbins, acknowledged in his deposition that he was aware that the weights provided by Express Metal and Translink were "estimated weights" that represented a "pretty big guess." See Docket No. 56 Exh. C at 91. Daniel Tomblin, an executive at Express Metal, testified in his deposition that he told a Robbins employee, prior to Robbins having hauled the modules, that the weight estimates "should be" within ten percent of the actual weight but that he was "not positive." See Docket No. 56 Exh. B at 16-17. These weight estimates were not based on any actual weighing of the modules, but rather were estimates derived from technical drawings of the modules, and Express Metal was never asked to conduct an actual weighing of the modules. See Deposition of Calvin Williams, Docket No. 47 Exhibit B at 15-17. Express Metal does not posses the type of scales capable of weighing anything as heavy as the modules. Id. at 17-18.
Robbins contacted both Translink and Express Metal in an attempt to recoup the costs that it alleges were a result of the incorrect weight estimate. See Deposition of Daniel Tomblin, Docket No. 47 Exh. B at 21-22. When, subsequent to the signing of the contract between Express Metal and Technip, Express Metal's Tomblin contacted Robert Evans of Technip to explain that there had been unforeseen costs in shipping, Technip agreed to pay a portion of that cost. See Deposition of Robert Evans, Docket No. 52 Exh. 8 at 13-16. Evans stated that he did not believe that Technip had a contractual obligation to pay these costs but that it chose to do so because it was "good business." Id. at 33-34. Evans did not recall what factors, including weight, contributed to the extra costs. Id. at 15.
No representatives from Express Metal ever traveled to Pennsylvania in connection with the manufacture or transportation of the modules, and Express Metal has never maintained any offices or employees in Pennsylvania. See Declaration of John Hare, Docket No. 56 Exh. 1. Express Metal employees did, however, meet with Robbins employees at Express Metal's factory in Oklahoma to examine the modules. A photocopy of Express Metal's website pages, attached to plaintiff's motion for summary judgment, includes maps demonstrating Express Metal's ability to transport its products to Pennsylvania. See Docket No. 62 Exh. 7. These website pages say nothing, however, with respect to Express Metal's actual past business practices. Express Metal's briefing represents, but does not corroborate with evidence, that Express Metal has only ever had one client in the state of Pennsylvania, and that Express Metal has not done any work with that client since 2003. See Docket No. 70 at 8.
When ruling on a motion to dismiss, a district court must "accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them." Markowtiz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990). Granting the motion is appropriate only "where it is certain that no relief could be granted under any set of facts that could be proved." Id.
For the purposes of a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), the allegations pleaded by the plaintiff, the non-moving party, are accepted as true and all disputed facts are resolved in favor of plaintiff. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 371 (3d Cir.2002) (quoting Carteret Sav. Bank. FA v. Shushan, 954 F.2d 141, 142 n. 1 (3d Cir.1992)).
Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see IFC Interconsult, AG v. Safeguard Int'l Partners, L.L.C., 438 F.3d 298, 317 (3d Cir.2006). A genuine issue of material fact exists where the jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 ...