300 F.Supp.2d 175 (2004) | Cited 3 times | D. Maine | January 15, 2004


I. Introduction

This Order addresses three motions in the above-captioned matter: thePlaintiff's Motion to Remand; the Defendant's Motion for SummaryJudgment; and the Third-Party Defendant's Motion for Partial SummaryJudgment. For the reasons discussed below, this Court DENIES thePlaintiff's Motion to Remand; GRANTS the Defendant's Motion for SummaryJudgment as to Count I only; and, GRANTS the Third-Party's Defendant'sMotion for Partial Summary on Count I.

II. Facts and Procedural History

In the fall of 1999, the Defendant, Potato Services of Michigan("PSMI"), contracted with Agway, Inc. ("Agway"), a licensed broker underthe Perishable Agricultural Commodities Act, 7 U.S.C. § 499a, etseq. ("PACA"), for the purchase of Certified Superior seed potatoes.PSMI then contracted with the Plaintiff, Eugene Bernath, d/b/a BernathFarms, to supply Bernath with Certified Superior seed potatoes. Bernathoperates a farm in Ohio. The contract between PSMI and Bernath containeda limitation of consequential damages provision that provided:Page 2

Any damages arising from our (sic) of this contract shall be limited in all events to the return of the actual purchase price paid as per trade terms of sale for such seeds on that portion of the seed potatoes on which a complaint may arise. The seller or producer shall not be liable for prospective profits or special, indirect or consequential damages. The return of the actual purchase price paid as per trade terms of sale for such seeds is toe exclusive and sole remedy available to the buyer or user of these seed potatoes.(See Def.'s Mot. Summ. J. at Ex. A (Docket # 20).) The contract alsoprovided the following forum selection clause: (a) It is agreed that any action for breach of this CONTRACT FOR SALE or of any warranty, express of implied, must be commenced within one (1) year after the cause of action has occurred; and, (b) It is agreed that the laws of the "Seed State of Origin," as specified hereabove in Item No. 4 and none other govern this agreement, sales transaction and seed product. If legal action is brought, the agreed place of venue is to be the "Seed State of Origin."(See Def.'s Mot. Summ. J. at Ex. A (Docket # 20).) The contract listedthe "Seed State of Origin" as Maine. Bernath had purchased seed potatoesfrom PSMI for many years before this transaction and on six prioroccasions had signed contracts with PSMI containing exactly the samecontractual language found in the 1999 contract at issue.

Earlier in 1999, Agway had purchased seed potatoes from Giberson Farms,Inc. ("Giberson"), a potato grower and producer. Due to complicationsfrom flooding, Giberson inadvertently sent Agway Atlantic seed potatoeslabeled as "Certified Superior seed potatoes." All parties agree that itis impossible to distinguish visually between the two varieties at theseed stage. The parties also appear to agree that, once harvested,Superior potatoes, which are table variety potatoes, are more valuablethan Atlantic potatoes, which are not suitable for table stock and aregenerally used to make potato chips.Page 3

In the spring of 2000, Agway shipped the seed potatoes labeled"Certified Superior" directly to Bernath. After rejecting a certainnumber because of soft rot, Bernath paid PSMI approximately $19,310.60for the remaining shipment. (See Def.'s SMF at ¶ 9 (Docket # 21).)PSMI "neither touched nor saw the seed potatoes at issue." (See Def.'sSMF at ¶ 7 (Docket # 21).)

At harvest, Bernath discovered that the potatoes were actually Atlanticpotatoes, and, in February 2001, Bernath brought suit against PSMI in theOhio Court of Common Pleas. Bernath raised five counts in its complaint:Count I, strict liability under PACA; Count II, breach of contract; CountIII, breach of express warranties; Count IV, breach of impliedwarranties; and, Count V, negligence. PSMI answered the complaint andbrought a Motion to Transfer or Dismiss, alleging that the forumselection clause mandated that any action be brought in Maine, as the"Seed State of Origin." On November 13, 2001, the state court deniedPSMI's Motion to Transfer or Dismiss, holding that "compelling Plaintiffs[Bernath] to prosecute this action in Maine would be, and is`unconscionable.'" (See Pl.'s Mot. Remand (Docket # 29).) After the statecourt ruling, PSMI joined Agway as a third-party defendant.

On February 25, 2002, Agway removed the action to the United StatesDistrict Court for the Northern District of Ohio ("Ohio Federal Court")on the basis of diversity jurisdiction. 28 U.S.C. § 1441. Bernathmoved to remand the case to state court or, in the alternative, torequire the Ohio Federal Court to treat the November 13, 2001 state courtorder as the law of the case. The Ohio Federal Court denied the motion Itconcluded Bernath had waived the right to object to Agway's untimelyremoval and since the federal court had subject matter jurisdiction,Bernath did not have authority to remand the case. The Ohio Federal Courtalso concluded that the law of the case doctrine was inapplicable,because Agway had not been a party at the time of thePage 4state court order and because the doctrine did not prevent the federalcourt from reconsidering previously decided issues.

Bernath then moved for partial summary judgment against PSMI. It arguedthat there was no genuine issue of material fact on whether the contracthad been breached and the Ohio State Court's November 13, 2001 Order, inwhich the forum selection clause was deemed "unconscionable" and,therefore, unenforceable, should be applied to the limitation of damagesclause. At the same time, PSMI moved for summary judgment or, in thealternative, for a transfer to this Court.1

The Ohio Federal Court declined to apply the law of the case doctrine,concluding the state court's ruling regarding the enforceability of theforum selection clause was "clearly contrary to Ohio law." (See Def.'sMot. Summ. J. at Ex. D, p. 5 (Docket # 20).) Accordingly, the OhioFederal Court transferred the case to this Court for a ruling on, amongother things, PSMI's motion for summary judgment. This Court received thetransferred case on February 6, 2003.

On March 11, 2003, Agway filed a Suggestion of Bankruptcy and, on June25, 2003, Magistrate Judge Kravchuk granted Bernath's motion to sever thethird-party complaint against Agway and proceed solely against PSMI. OnSeptember 2, 2003, PSMI filed a third-party complaint against Giberson.

Turning to the first of three motions before this Court, Bernath hasmoved to remand the case to the state court in Ohio. (Docket # 29).Bernath returns to the November 13, 2001 Order of the Ohio State Court.He argues that this court should give "full faith and credit" to thestate court order, holding the forum selection clause unenforceable. Hecites the Rooker-FeldmanPage 5doctrine as prohibiting this Court's exercise of subject matterjurisdiction on a matter previously adjudicated by a state court.Finally, he contends that because Agway, the party that removed the caseto federal court is no longer a party, the Ohio Federal Court's denial ofhis earlier motion to remand is inapplicable. Both Giberson and PSMIfiled objections to the Motion to Remand (Docket #33 and 40,respectively) and Bernath filed a response to the objections (Docket#41).

Second, PSMI has moved for summary judgment. (Docket # 20). PSMI arguesthat summary judgment is appropriate because either (1) the liquidateddamages clause is valid according to the test established in Pachecov. Scoblionko, 523 A.2d 1036 (Me. 1987); (2) section 499b(5) of thePACA shields it from liability because it was not the "first licensee" tohandle the subject seed potatoes; or, (3) the Ohio Federal Court'sdecision that the forum selection clause is enforceable is now the law ofthe case and means that the limitation of damages clause is similarlyenforceable. Bernath filed a Memorandum in Opposition to the Motion forSummary Judgment (Docket #30) and PSMI filed a response to Bernath'sobjection (Docket # 35).

Third, Giberson has moved for partial summary judgment as to PSMI'sthird-party complaint. (Docket #46). PSMI brought two claims againstGiberson: Count I, violation of the PACA; and Count II, breach of expressand implied warranties of merchantability. Giberson moves for summaryjudgment as to Count I, contending § 499b(5) of the PACA shields itfrom liability, because it is not a merchant, dealer, or broker under thePACA. In support of its motion, Giberson submitted a Statement ofMaterial Facts (Docket # 47). Bernath filed an objection to Giberson'smotion (Docket # 50) and PSMI filed a response to Bernath's objectionPage 6(Docket # 57). However, on December 22, 2003, at oral argument onthese motions, Bernath and PSMI conceded that they do not opposeGiberson's Motion for Partial Summary Judgment.2

III. Discussion

A. Plaintiff's Motion to Remand

As the Plaintiff has challenged subject matter jurisdiction, this Courtwill address first the Plaintiff's Motion to Remand. The Plaintiff arguesthat Agway's severance triggers an elaborate chain reaction, whichrequires this case to go back to where it began in the fall of 2001:since the Ohio Federal Court based its rejection of the Ohio State Courtdecision on the fact Agway was not a party, once Agway was severed fromthe case, the Ohio State Court decision resumed its position as "law ofthe case," making the forum selection clause unenforceable and mandatinga remand to the Ohio State Court. To buttress his position, Plaintiffcites the Rooker-Feldman doctrine, claiming it precludes both the OhioFederal Court and this Court from reviewing a state court judgment. ThePlaintiff's analysis is flawed for a number of reasons.

First, the Plaintiff fails to consider the totality of the decision bythe Ohio Federal Court. Although the Ohio Federal Court based itsrejection of the State Court decision in part upon Agway's absence fromthe case at the time of the State Court decision, the Ohio FederalCourt's overriding conclusion was that the law of the case doctrine didnot "foreclose a court from reconsidering issues previously decided."(See Def.'s Mot. Summ. J. at Ex. D, p. 5 (Docket # 20).) Upon examiningthe Ohio state law, the Ohio Federal Court concluded "the state court'sruling on the forum selection clause was clearly contrary to Ohio law,and thus the law of the case doctrine should not be applied." (See Def.'sMot. Summ. J. at Ex. D, p. 5 (Docket # 20).)Page 7Instead, the Ohio Federal Court enforced the forum selection clauseand transferred the case to this Court. Even if the portion of the OhioFederal Court decision that is based on Agway's absence from the case isno longer applicable, this does not nullify the remainder of thedecision. To accept the Plaintiff's argument, this Court would berequired to enforce a state court order that is clearly contrary to statelaw. This Court will not do so.

Similarly, the Plaintiff posits an unpersuasive reading of theRooker-Feldman doctrine. The doctrine provides that inferior federalcourts have no subject matter jurisdiction to review judgments of a statecourt; such judgments must be pursued in the state appellate system and,if necessary, by way of review of the state's highest court in the UnitedStates Supreme Court.3 In re Diet Drugs, 282 F.3d 220, 240 (3rd Cir.2002); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462(1983). The instant case is distinguishable. The Ohio Federal Court didnot "review" a state court judgment; instead, the Ohio Federal Courtreconsidered an earlier decision in a case Agway removed to federalcourt. Plaintiff's view of Rooker-Feldman would unreasonably limit afederal court's authority when a case is removed and the state court hasalready issued judgments and orders. See Diet Drugs, 282 F.3d at 240(holding that Rooker — Feldman doctrine does not work to defeatdistrict court's authority over management of its own case, even ininstances where management effectively reverses or voids statedecision); see also 28 U.S.C. § 1450 ("All injunctions, orders, andother proceedings had [in actions removed to district court] shall remainin full force and effect until dissolved or modified by the districtcourt"); Kizer v. Sherwood, 311 F. Supp. 809, 812 (M.D. Pa. 1970) ("[I]tis within the power of the Federal Court to set aside a default judgmentrendered by a State Court before removal of a particular case"). ThePlaintiff has not convinced this Court that the Ohio Federal Court'sPage 8decision extended beyond the proper limits of a district court'sauthority when receiving a case on removal into the impermissibleterritory of the Rooker-Feldman doctrine.

Finally, the Plaintiff's Motion to Remand is untimely. Title 28,section § 1447(c) provides, in part: A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.Agway removed this case on February 25, 2002, and Bernath's Motionto Remand of April 11, 2002. was deemed untimely then. Even if the courtaccepts the questionable proposition that the time limit of § 1447(c)should recommence upon Agway's severance from the case on June 25, 2003.Bernath's September 22, 2003 Motion to Remand violates the thirty-daytime limit under § 1447(c). Now, nearly three years after suit wasbrought, more than four years after the contract was signed, having beenlitigated in three different courts, this case cries out for finality.

B. Defendant's PSMI's Motion for Summary Judgment4

Summary Judgment is appropriate if the pleadings, depositions, answersto interrogatories, and admissions on file, together with the affidavits,if any, show that there is no genuine issue as to any material fact andthat the movant is entitled to judgment as a matter of law. Fed.R. Civ.P. 56(c). The Defendant seeks summary judgment in its favor on Count I,the PACA claim, and Counts II-V, the contract and tort claims. The PACAclaim is susceptible toPage 9summary judgment, since the Defendant claims it is entitled to judgmentas a matter of law. However, be remaining Counts are not, since theDefendant does not claim judgment should issue in its favor. Rather, theDefendant seeks a ruling as to the enforceability of the limitation ofdamages provision in its contract with the Plaintiff. What is cloaked asa motion for summary judgment is more akin to a motion in limine.Nevertheless, the fundamental issue in this case is the enforceability ofthe limitation of damages provision and, as the parties have fullybriefed and argued the issue, this Court will address it. For the reasonsdiscussed below, this Court concludes that the provision is enforceable.

1. PACA Claim

Section 499b(5) provides, in part: It shall be unlawful in or in connection with any transaction in interstate of foreign commerce for any commission merchant, dealer, or broker to misrepresent by work, act, mark, stencil, label, statement or deed, the character, kind, grade, quality, quantity, size, pack, weight, condition, degree of maturity, or state, country or region of origin of any perishable agricultural commodity received, shipped, sold, or offered to be sold interstate or foreign commerce. . . . A person other than the first licensee handling misbranded perishable agricultural commodities shall not be held liable for the violation of this paragraph by reason of the conduct of another person who did not have knowledge of the violation or lacked the ability to correct the violation.The PACA defines "licensee" as any firm that holds an unrevoked, valid,and unsuspended license issued under the PACA. 7 U.S.C. § 499c(b)(2).The Defendant argues Agway was the first licensee to handle the seedpotatoes; accordingly, § 499b(5) shields it from liability. ThePlaintiff responds to the Defendant's argument by stating:

Bernath agrees that [the Defendant] was not the first licensee to "handle" the seed, but [the Defendant] issued the first representation as to the grade of potatoes to be delivered — Superior as opposed to Atlantic — in the seed contract at issue. Based upon this representation, [the Defendant] should be liablePage 10 under the applicable PACA provisions for the full extent of damages incurred by Bernath. . . .

(See Pl.'s Mem. Opp. Def.'s Mot. Summ. J. at 7 (Docket # 30).) ThePlaintiff does not cite any law for its unique interpretation of the term"handle" and there does not appear to be a published decision thatsupports the Plaintiff's argument. Accordingly, summary judgment isappropriate as to Count I of the Plaintiff's Complaint.

Resolution of the PACA claim does not resolve the entirety of thePlaintiff's Complaint. Section 499o of the PACA reads, in part: This chapter shall not abrogate nor nullify any other statute, whether State or Federal, dealing with the same subjects of this chapter; but it is intended that all such statutes shall remain in full force and effect except insofar only as they are inconsistent herewith or repugnant hereto.Section 499o indicates that the PACA was not intended to repeal the lawof sale or to destroy the rights and liabilities of the contractingparties thereunder. E.g., Rothenberg v. H. Rothstein & Sons,183 F.2d 524, 526 (3rd Cir. 1950). Therefore, this Court must considertoe remaining counts against the Defendant, as they are not necessarilypreempted by the PACA.

2. Counts II-V

The Court now turns its attention to Counts II-V, the viability ofwhich hinge on the enforceability of the limitation of damagesprovision. The Plaintiff argues that applying the provision would beappropriate if he had received an inferior crop of Certified Superior seedpotatoes, as opposed to Atlantic seed potatoes. To recognize theprovision, the Plaintiff contends, "would be to adopt a Chevy warranty fora Ford truck." (See Pl.'s Mem. Opp. Def.'s Mot. Summ. J. at 7 (Docket#30).) This Court disagrees with the Plaintiff's analysis. The provisionis enforceable for a number of reasons.Page 11

First, the Plaintiff has not established that the provision "fails ofits essential purpose" within the meaning of those words in the UniformCommercial Code ("U.C.C." or "Code"). The U.C.C. provides wherecircumstances cause an exclusive or limited remedy to fail of itsessential purpose, remedy may be had as otherwise provided in the Code.See 11 M.R.S.A. § 2-719(2) (adopting U.C.C. language verbatim). TheOfficial Comment explains: [W]here an apparently fair and reasonable clause because of circumstances fails in its purpose or operates to deprive either party of the substantial benefit of the bargain, it must give way to the general remedy provisions of this Article.The policy behind § 2-719(2) is to ensure that "minimum adequateremedies" are available: It is of the very essence of a sales contract that at least minimum adequate remedies be available. If the parties intend to conclude a contract for sale within this Article they must accept the legal consequences that there be at least a fair quantum of remedy for breach of the obligations or duties outlined in the contract.Id. at Cmt. 1. In practical terms, a remedy fails of its essentialpurpose when "novel circumstances not contemplated by the parties" make itimpossible to carry out the essence of the remedy. 1 White & SummersUniform Commercial Code § 12-10 (4th ed. 2003) ("White &Summers"). For instance, when a seller refuses or is unable to repairdefective goods, a "limited repair and replacement" remedy fails of itsessential purpose. Id. Similarly, if a remedy requires a buyer to performan act that cannot be performed because of the seller's breach, theremedy fails of its essential purpose. Id. White & Summersinstructs: [S]uppose an automobile manufacturer limits remedy to repair and replacement of defective parts and provides that the defective parts must be delivered to its plants. If the entire car is destroyed as a result of defective wiring, repair and replacement of those parts would not restore the car to working condition. The exclusive remedy would fail of its essential purpose.Id.Page 12

Here, the Plaintiff has failed to show any novel circumstances notcontemplated by the parties that make it impossible to carry out thelimitation of damages provision. The provision provides for damages equalto the purchase price under the contract; the Defendant's delivery ofnon-conforming seed potatoes hardly impedes the return of the purchaseprice.5

Further, the Plaintiff has failed to show why this Court should setaside an agreed-upon allocation of loss between two experienced parties.1 White & Summers § 12-10 ("[B]usiness people should be permittedto agree on any remedy they want and, having done . . . that theirallocation of loss should not be upset by a court"); see Providence& Worcester Railroad Co. v. Sergeant and Greenleaf. Inc.,802 F. Supp. 680, 691 (D.R.I. 1992) ("Where an agreement between buyerand seller was made in a `sophisticated commercial setting' an exclusionof liability for consequential damages was valid and enforceable eventhough circumstances caused the limited remedy provided by the agreementto fail of its essential purpose") (internal citation omitted). Indeed,the Plaintiff's position as an experienced commercial buyer of seedpotatoes is one basis upon which this Court distinguishes Brooker v.Vermont Log Buildings. Inc., 1983 Me. Super. LEXIS 90, *1, where aconsumer log home purchaser challenged the enforceability of a limitationof damages provision after the materials he purchased proved to bedefective.6Page 13

Second, the limitation of damages provision is enforceable because itis reasonable under Maine common law. The Maine Supreme Judicial Courthas often stated that the inquiry used to determine the enforceability ofa liquidated damages clause, referred to here as the Pacheco test,requires: (1) the damages caused by the breach are "very difficult" toestimate accurately; and (2) the amount fixed is a reasonable forecast ofthe amount necessary to compensate justly one party for the lossoccasioned by the other's breach. E.g, Pacheco, 532 A.2d at 1038;Interstate Indus. Uniform Rental Serv., Inc. v. Couri Pontiac. Inc.,355 A.2d 913 (Me. 1976). In Interstate Industrial Uniform, the Law Courtexpounded on the elements of the test: These two requirements, one demanding reasonable pre-estimation and the other calling for damages incapable of pre-estimation, appear contradictory. Yet this apparent contradiction is reconciled in the fundamental goal of contract law — protection of the parties' reasonable expectations. . . . The . . . requirements mean simply that the reasonableness of the amount stipulated as liquidated damages is to be examined as of the time the contract was formed and that the amount must be reasonable both in terms of the subject matter of the contract and the parties' situation and as a prediction of the harm resulting from a prospective breach. The requirement that damages must be difficult to ascertain is actually a corollary to the general requirement of reasonableness; if damages could be easily ascertained liquidated damages would be of little use since any departure from the actual harm would be looked upon as unreasonable.355 A.2d at 921.

In this case, the limitation of damages provision meets the Pachecotest. The damages caused by a breach of this sort of contract are "verydifficult to estimate accurately" because they depend on marketconditions, such as the fluctuating demand for potatoes, and productconditions, such as the quality of the potatoes harvested. Also, theamount established reasonably compensates the Plaintiff for the breach.The Plaintiff bargained for Certified Superior seed potatoes. Thelimitation of damages provision returns to the Plaintiff that withPage 14which he parted — the purchase price — in order to obtain thebenefit of the contract-Certified Superior seed potatoes. These facts aredistinguishable from those before the Law Court in Pacheco, where asummer camp relied on a liquidated damages clause to refuse the return ofa camper's tuition when the camper could not attend. The clause setdamages at 100% of the contract price and the camp produced no evidenceas to damages anticipated or actually sustained as a result of thecamper's withdrawal. The Law Court reasoned that the clause was actuallya penalty: "The apparent intent of the clause is to deter parents fromwithdrawing their children from camp at a late date, without regard toany reasonable, good faith estimate of consequent damages." 532 A.2d at1038. By contrast, the Defendant has shown the difficulty in estimatingdamages and the reasonableness of the liquidated damages amount for theDefendant's breach. In doing so, the Defendant has established what thesummer camp did not.

Between this experienced buyer and an experienced seller of seedpotatoes, the limitation of damages provision protects the parties'reasonable expectations, constitutes at least minimum adequate remediesas required by the U.C.C., and falls within the realm of reasonablecompensation under the Pacheco test. Accordingly, this Court concludesthat the provision is enforceable.

C. Third-Party Defendant's Motion for Partial Summary Judgment

The Third-Party Defendant's Motion for Partial Summary Judgment onCount I of the Third-Party Complaint is GRANTED.

IV. Conclusion

For the reasons stated above, the Plaintiff's Motion to Remand isDENIED; the Defendant's Motion for Summary Judgment is GRANTED as toCount I only, and, the Third-Party Defendant's Motion for PartialSummary Judgment on Count I is GRANTED. In addition,Page 15this Court rules that the liquidated damages provision of the contractbetween the Plaintiff and the Defendant is enforceable. The remainder ofDefendant's Motion for Summary Judgment is DENIED. The case will be setforward for trial on all remaining issues.


1. For its part, Agway also moved for summary judgment, contendingthat a limitation of damages clause in its contract with PSMI entitled itto judgment as a matter of law.

2. Indeed, such was obvious prior to oral argument. Neither thePlaintiff's nor the Defendant's replies to Giberson's Motion responded tothe rationale Giberson presented. Instead, both the Plaintiff and theDefendant used their "objections" to elaborate on the merits of thePlaintiff's claim against the Defendant.

3. While Feldman includes the language "final judgments of a statecourt," 460 U.S. at 482, the Rooker-Feldman doctrine is not limited tofinal judgments, see, e.g., Schroll v. Plunkett, 760 F. Supp. 1385, 1388(D. Or. 1991) (collecting authorities).

4. The Plaintiff's Responsive Statement of Material Facts ("ResponsiveSMF") (Docket #31) does not comply with Local Rule 56 because thePlaintiff attempts to incorporate an affidavit regarding damages in thesection of the Responsive SMF admitting, denying, or qualifying theDefendant's Statement of Material Facts. Local Rule 56(h)(2) does notprovide for additional facts within this section and this Court maydisregard the Plaintiff's affidavit regarding damages. E.g., Burbank v.Davis, 227 F. Supp.2d 176, 179 (D. Me. 2002) (stating that to extentnonmovant's responses to movant's statements of material fact wereadditional facts cloaked as facts that rebutted or qualified movant'sfacts, and not set out in separate section, court would not considerthem). However, it is not necessary to consider the issue at this time,as the Plaintiff's ability to establish damages is secondary to theenforceability of the limitation of damages provision.

5. The Plaintiff cites Maine Farmers Exchange v. McGillicuddy,697 A.2d 1266 (Me. 1997), for the proposition that "failure to deliverpotato seed conforming to seller's representations is clearly recognizedas a breach of contract." (See Pl.'s Mem. Opp. Def.'s Mot. Summ. J. at 5(Docket #30).) McGillicuddy is not on point, as the Law Court merely heldthat where a buyer told a seller the variety of seed potato it desiredand the purpose for which he desired it, the variety and seed were a"substantial part of the bargain" and an express warranty existed. 697A.2d at 1269. The Law Court did not address whether a remedial provisionwithin the contract failed of its essential purpose.

6. Brooker is not otherwise instructive to the case at hand. There,the Superior Court concluded that it needed to conduct furtherfact-finding to determine whether a limitation of damages provisionfailed of its essential purpose. 1983 Me. Super. LEXIS at *4. However,the court stopped well short of saying that further fact finding wasrequired whenever courts evaluate such provisions. Id. ("Whetherplaintiff's contractual remedy so failed in its purpose as to permitplaintiff to obtain additional damages under Count II must be resolvedthrough further fact-finding"). In the case at hand, this Court does notneed the benefit of further fact-finding to understand the provision andthe circumstances surrounding it.

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