United States District Court, D. Kansas
American Maplan Corporation, d/b/a Battenfeld-Cincinnati USA, Plaintiff,
Heibei Quanen High-Tech Piping co., Ltd.; J-M Manufacturing Company, Inc.; and Walter Wang, Defendants. Heibei Quanen High-Tech Piping co., Ltd.; Counterclaim Plaintiff,
American Maplan Corporation, d/b/a Battenfeld-Cincinnati USA, Counterclaim Defendant. Heibei Quanen High-Tech Piping co., Ltd.; Third-Party Plaintiff,
BC Extrusion Holding, GmbH, Battenfeld-Cincinnati Germany GmbH, and Gerold Schley, Third-Party Defendants.
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
Maplan Corporation, doing Business as Battenfeld-Cincinnati
USA, makes equipment used to extrude plastic pipe. Beginning
in 2012, Maplan entered into an arrangement to supply pipe
extrusion machines to Hebei Quanen High-Tech Piping Company,
together with the Quanen subsidiary J-M Eagle, for use at
Quanen's plants in China. Maplan began to deliver and
install the equipment in 2013.
that they refused to pay for the delivered equipment, Maplan
brought the present action against Quanen, Eagle, and their
leader Walter Wang on March 30, 2017, raising clams for
breach of contract, breach of implied covenant of good faith,
conversion, unjust enrichment, intentional interference, and
fraud. The defendants moved to dismiss the action for lack of
personal jurisdiction. The court denied the motion on
November 21, 2017. (Dkt. 50).
filed their Answer to the Complaint on December 13, 2017
(Dkt. 53), including counterclaims against Maplan, and
advancing a third-party complaint against other Battenfeld
entities - BC Extrusion Holding GmbH, Battenfeld-Cincinnati
Germany GmbH, and Gerold Schley (President and CEO of BC
Extrusion). The defendants advance claims for (1) breach of
the original contract, (2) breach of a May 27, 2015 agreement
intended to resolve issues arising from the installed
equipment, (3) strict liability, (4) negligence, (5) breach
of express or implied warranty of fitness for a particular
purpose, (6) breach of express or implied warranty of
merchantability, (7) intentional misrepresentation, (8)
negligent misrepresentation, and (9) promissory estoppel.
plaintiff has moved to dismiss the seven of the nine
counterclaims as time- barred and as otherwise precluded by
Kansas law. (Dkt. 69). The third-party defendants join in
these arguments, as well as arguing the court lacks
jurisdiction. (Dkt. 71). For the reasons provided herein, the
court finds that the motions to dismiss should be granted,
with the exception of the claim for intentional
misrepresentation clam against Maplan.
motion, Maplan argues that five of the counterclaims (strict
liability, negligence, intentional misrepresentation,
negligent misrepresentation, and promissory estoppel) are
time-barred because they were not brought within two years of
the accrual of the relevant cause of action, as required
under Kansas law. See K.S.A. 60-513(a)(4) (two year
limitation for any “action for injury to the rights of
another, not arising on contract”). The face of the
defendant Quanen's Answer and Counterclaim presents
substantial support for this argument.
noted earlier, the defendant's Answer was filed December
13, 2017. Accordingly, Quanen cannot recover under its
various tort or warranty for injuries sustained prior to
December 13, 2015. Yet the Answer also makes plain that
Quanen knew of substantial problems with the pipe extrusion
equipment before this time. The Answer alleges:
The commissioning process for all the subject lines was
plagued with serious problems. It soon became
apparent that there were a host of problems with the
design of the PE and the PVC lines and their related
equipment, systems and features. These design flaws included
problems with the sizing sleeve, saw design errors, puller
design issues, cooling system issues and gearbox leakage,
among others. Instead of acknowledging these problems and
taking steps to correct them, Maplan, BC Extrusion and
Battenfeld Germany denied that there was a problem, made
excuses and were non-responsive.
(Dkt. 53, ¶ 28) (emphasis added).
Answer and Counterclaim alleges that this commissioning
process began shortly after the equipment was assembled and
installed in China, which commenced after the equipment was
shipped “beginning in March 2014.” (Id.
at ¶ 27).
Answer and Counterclaim thus alleges that the equipment was
not only flawed but that these flaws were manifest and
obvious more than two years before presenting its
response to the motion to dismiss, Quanen does not argue that
its causes of action for strict liability, negligence, or
breach of warranty were not ripe until after December 13,
2015. Rather, it argues that Maplan should be equitably
estopped from presenting the statute of limitations defense
as to those claims. It also argues that its misrepresentation
and promissory estoppel claims were triggered only after
fully learning that Maplan's various representations were
untrue. In both cases, Quanen focuses on a series of
representations by Maplan which supposedly lulled Quanen into
not suing or in concealing the extent of the injury.
Answer and Counterclaim itself provides little in the way of
support for these contentions, other than the most conclusory
of statements. It does allege that Maplan represented that it
“had the capacity, ability, and know-how to repair or
replace the extrusion lines and bring them up to the
requirements and specifications of Quanen that it had
promised.” (Dkt. 53, ¶ 104). The defendant
allegedly “induced Quanen not to take legal action but
to give [them] and their technical staffs additional time to
make repairs.” (Id. at ¶ 32). After
discovering the alleged problems with the equipment, Quanen
consulted with Maplan and the parties entered into a schedule
in May 2015 “for the remediation and repair of the
extrusion lines.” (Id. at ¶ 30).
particular, Quanen relies upon the following passage from the
Answer and Counterclaim:
By their conduct from 2013 through and including May 2015
(and thereafter) in assuring Quanen that they had the
capacity, ability and know-how to repair or replace the
extrusion lines and bring them up to meet the requirements
and specifications they had promised to meet, and that they
could and would do so, each of Maplan, BC Extrusion, and
Battenfeld Germany affirmatively induced Quanen not to take
legal action but to give these companies and their technical
staffs additional time to make repairs-repairs that were
never successfully completed.
(Id. at ¶ 32. See also ¶¶ 95, 104).
context, this “thereafter” language does not
fairly allege conduct with the limitations period, that is,
after December 13, 2015. The cited allegation is made
immediately after asserting that “[t]he problems
persisted well into 2015.” (Id. at ¶ 30).
As the result of their meetings, Quanen and Maplan entered
into a May 27, 2015 agreement for Maplan to make repairs so
that the equipment could be commissioned “by certain
set dates in the future” (id.), but there is no
allegation that these set dates were after December, 2015.
Indeed, the Answer and Counterclaim itself makes no specific
allegation of lulling conduct at any time in 2016.
Answer and Counterclaim alleges that during testing which
occurred as part of the commissioning process, the Maplan
equipment caused two explosions, on May 18, 2015, and July
23, 2015. These events produced no personal injuries. and
apparently occurred not during ordinary use but while pipe
was being subjected to preliminary high pressure tests. (Dkt.
53, ¶¶ 36, 52).
relevant passage, the defendants also do not assert damages
based on any injury, but instead allege that as a result of
these two events, its “customer rejected all of the
pipe, causing considerable additional cost to Quanen in
excess of $1.5 million, ” and that the event
“damaged Quanen's business relationship with this
important customer.” (Id. ¶ 36.) The
defendants continue, raising other assertions of economic
injury. Thus, as a result of the alleged design flaws,
Quanen has been unable to fulfill customer orders, has
incurred substantial additional costs, has experienced
numerous shut-downs in the production process and has faced
other serious delays in production and difficulties in
producing pipe according to customer specifications. Its
reputation in the marketplace has also been seriously
53, ¶ 37).
court was presented only with the Answer and Counterclaim
itself, it would have little difficulty in concluding that
the non-contract claims advanced by Quanen were time-barred.
Given the extent of the alleged defects, and their manifest
and “apparent” nature, those non-contract
claims - even couched as promissory estoppel or
misrepresentation - had all accrued by mid-2015, six months
before the limitations deadline.
Quanen expressly requests leave to amend the Answer and
Counterclaim to add allegations relating to later events, and
Maplan's reply does not address the
request.Specifically, defendants assert that they
would further allege that in October of 2015, BC Extrusion
was continuing to propose future resolutions to the problems,
that these efforts continued in February, 2016, and that
Quanen's testing of modified equipment continued into
March of 2016. (Resp. at 13-14).
does argue Quanen was not lulled into inaction because it
did sue other Battenfeld entities (but not
Battenfeld itself) in California. Maplan suggests that Quanen
sued these other entities in California in order to avoid the
various defenses Maplan may advance here pursuant to its
court finds that a question of fact is presented as to
defendant's claims of estoppel. While the California suit
might be strong evidence against any lulling, it is not
conclusive. The California action was filed on May 24, 2016.
A fact-finder could infer some degree of estoppel, or
lulling, existed until the spring of 2016, and the December
2017 counterclaims could therefore be timely.
the court finds that amendment of the Answer and Counterclaim
is not warranted to add estoppel allegations, because the
non-contract claims are in any event properly dismissed for
the court finds that language from the Maplan Purchase
Agreements specifically excludes claims for strict liability,
negligence, negligent misrepresentation, or promissory
Purchase Agreements first specifically limit the extent of
recovery, providing that the purchaser is restricted to
elimination of the fault alone. Under the heading
“Conditions of delivery and payment, ” the Maplan
Purchase Agreement provides:
Maplan shall not be responsible for any special, indirect,
incidental or consequential damages in connection ...