149 F.

3d 262
36 UCC Rep.Serv.2d 99

AQUALON COMPANY, Plaintiff-Appellant,

v.
MAC EQUIPMENT, INCORPORATED, Defendant & Third
Party
Plaintiff-Appellee,
and
C.W. Nofsinger Company, Third Party Defendant.
No. 97-1693.

United States Court of Appeals,

Fourth Circuit.
Argued March 5, 1998.
Decided July 8, 1998.

ARGUED: Brewster Stone Rawls, Brewster S. Rawls & Associates, P.C.,

Richmond, Virginia, for Appellant. Earle Duncan Getchell, Jr., McGuire,
Woods, Battle & Boothe, L.L.P., Richmond, Virginia, for Appellee. ON
BRIEF: John B. Nicholson, Brewster S. Rawls & Associates, P.C.,
Richmond, Virginia, for Appellant. David H. Worrell, Jr., J. William
Boland, M. Christine Klein, McGuire, Woods, Battle & Boothe, L.L.P.,
Richmond, Virginia, for Appellee.
Before MURNAGHAN, Circuit Judge, KEELEY, District Judge for the
Northern District of West Virginia, sitting by designation, and MOON,
District Judge for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge MURNAGHAN wrote the opinion,
in which Judge KEELEY and Judge MOON joined.
OPINION
MURNAGHAN, Circuit Judge:

Aqualon Company, a chemical manufacturer, asked MAC Equipment,

1

Incorporated, to produce rotary valves, also called airlocks, for use in a

pneumatic conveying system. The system was designed by C.W. Nofsinger
Company to move a chemical, blended carboxymethyl cellulose. Before MAC
was awarded a contract to produce the valves, it provided estimates of how
much air its valves would leak. However, once the valves were actually
constructed, they leaked much more than expected.

After almost a year of complaints and negotiations between Aqualon and MAC,
it became apparent that the valves could not be made to leak any less. Aqualon
modified its system design so that it would still be able to move the chemical
despite the leakage. In the spring of 1993 Aqualon reissued a purchase order for
the leaky valves; Aqualon accepted the valves in June; and Aqualon paid for
them in full as of December 19, 1993. MAC did not conceal, and Aqualon
knew, the valves' air leakage rate.

Three years thereafter Aqualon served MAC with a complaint for breach of
contract and warranty. The district court granted summary judgment to MAC,
holding that Aqualon had not given MAC notice within a reasonable time of its
claim for breach. Aqualon appeals.

I.
4

We first address our jurisdiction to hear this case in federal court. Aqualon
commenced the case in Virginia state court, but the parties being of diverse
state citizenship and the required amount being at issue, MAC filed the
necessary papers to remove it to federal district court. About an hour after doing
so, MAC in state court filed a Notice of Removal and a Third Party Motion for
Judgment against C.W. Nofsinger. Aqualon moved to remand the case back to
state court but the district court denied Aqualon's motion and kept jurisdiction
of the case.

Aqualon maintains that MAC's removal to federal court was improper and that
the district court should have granted the motion to remand. Aqualon asserts
that by filing a Third Party Motion for Judgment against C.W. Nofsinger in
state court, MAC submitted to the jurisdiction of the state court and waived its
right to remove to federal court.

The district court's decision that the defendant did not demonstrate an intent to
waive its right to remove to federal court is a factual determination, to be
reversed only if clearly erroneous. See Grubb v. Donegal Mut. Ins. Co., 935
F.2d 57, 59 (4th Cir.1991). In Grubb, we held that "although a defendant may

yet waive its 30-day right to removal [under 28 U.S.C. 1446(b), after federal
jurisdiction becomes appropriate] by demonstrating a 'clear and unequivocal'
intent to remain in state court, such a waiver should only be found in 'extreme
situations,' " 935 F.2d at 59. MAC, by contrast, had clearly previously indicated
its desire to seek the federal forum.
7

Aqualon cites, in support of a finding of waiver, two district court cases,

Baldwin v. Perdue, Inc., 451 F.Supp. 373 (E.D.Va.1978), and Sood v.
Advanced Computer Techniques Corp., 308 F.Supp. 239 (E.D.Va.1969). In
both cases, the defendants moved to remove to federal court after they filed
permissive substantive defenses in state court (a cross-claim in Baldwin and
counterclaims in Sood ). The district courts found waiver in both cases and
granted motions to remand. See Baldwin, 451 F.Supp. at 375-76; Sood, 308
F.Supp. at 242.

A defendant may waive the right to remove by taking some such substantial
defensive action in the state court before petitioning for removal. However,
waiver by conduct does not exist when removal, as here, precedes any state
court action. Federal jurisdiction attached as soon as MAC filed a Notice of
Removal in Federal Court, an hour before MAC filed any pleadings in state
court. See Berberian v. Gibney, 514 F.2d 790, 792 (1st Cir.1975); Burroughs v.
Palumbo, 871 F.Supp. 870, 872 (E.D.Va.1994). It could not waive a right that it
had already exercised.

Furthermore, even if remand would have been proper, once an improperly

removed case has proceeded to final judgment in federal court that judgment
should not be disturbed so long as the federal court had jurisdiction over the
claim at the time it rendered its decision. In Caterpillar Inc. v. Lewis, 519 U.S.
61, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996), the Supreme Court held that "a
district court's error in failing to remand a case improperly removed is not fatal
to the ensuing adjudication if federal jurisdictional requirements are met at the
time judgment is entered," id. 117 S.Ct. at 471. "To wipe out the adjudication
post-judgment, and return to state court a case now satisfying all federal
jurisdictional requirements, would impose an exorbitant cost on our dual court
system, a cost incompatible with the fair and unprotracted administration of
justice." Id. 117 S.Ct. at 477. The Fourth Circuit has recognized these
"considerations of finality, efficiency, and economy," id. 117 S.Ct. at 476, as
well:

10
Where
a matter has proceeded to judgment on the merits and principles of federal
jurisdiction and fairness to parties remain uncompromised, to disturb the judgment
on the basis of a defect in the initial removal would be a waste of judicial resources.

Although the interest in judicial economy is most pressing where an action has
proceeded to trial, we feel that the same considerations are applicable to summary
judgment.
11

Able v. Upjohn Co., 829 F.2d 1330, 1334 (4th Cir.1987) (citation omitted),
overruled on other grounds, Caterpillar, Inc., 117 S.Ct. at 475 n. 11.

12

There is no dispute that diversity jurisdiction existed both at the time of

removal and at the time summary judgment was granted for MAC. And
Aqualon has not argued that it was prejudiced in some way by the federal
forum. We conclude that the district court properly exercised jurisdiction over
this case.

II.
13

As this appeal arises from a grant of summary judgment, we view the facts in
the light most favorable to the non-moving party, deciding matters of law de
novo. See Halperin v. Abacus Technology Corp., 128 F.3d 191, 196 (4th
Cir.1997). Here the relevant facts are essentially agreed upon. Aqualon, after
repeatedly stressing its right to reject nonconforming valves, reissued purchase
orders for the valves knowing full well that they leaked more than MAC had
estimated, accepted delivery and paid for the valves in full, all without
notifying MAC that it found the transaction still troublesome. The first such
notice Aqualon gave MAC that it intended to pursue a claim of breach was the
complaint served on MAC three years after acceptance. The district court
dismissed Aqualon's breach of contract and breach of warranty claims on the
ground that such notice was not given within a reasonable time after
acceptance, as section 2-607(3) of the Uniform Commercial Code requires.1
We are asked to review the application of the U.C.C. section 2-607(3) as a
matter of law.
Section 2-607(3) provides:

(3) Where a tender has been accepted

14
15

(a) the buyer must within a reasonable time after he discovers or should have
discovered any breach notify the seller of breach or be barred from any
remedy....

16

U.C.C. 2-607(3). The notice required by section 2-607(3) "need merely be

sufficient to let the seller know that the transaction is still troublesome and

must be watched." U.C.C. 2-607, cmt. 4.

17

Aqualon makes four related arguments: 1) section 2-607(3) does not apply to
the circumstance presented here; 2) Aqualon's pre-acceptance complaints that
the valves leaked more than it had estimated constituted reasonable notice of
the breach; 3) MAC's actual knowledge that the valves leaked more than MAC
had estimated fulfilled the purposes of the U.C.C. notice requirement; and 4)
Aqualon's serving MAC with a complaint three years after acceptance
constituted notice within a reasonable time. We address each contention in turn.

A. U.C.C. Section 2-607(3)

Does Apply
18

By its terms, U.C.C. section 2-607(3) applies to this case because this is a
situation "[w]here a tender [of goods, i.e., the valves] has been accepted."
Section 2-607(3) bars a breach of contract claim by a buyer, such as Aqualon,
who has accepted the seller's, such as MAC's, tender of goods unless Aqualon
gave MAC notice of the alleged breach within a reasonable time.

19

Section 2-607(3) is based on section 49 of the Uniform Sales Act. See U.C.C.
2-607, cmt. (Prior Uniform Statutory Provision). Professor Williston, the author
of the Uniform Sales Act, has explained that section 49 ameliorated the harsh
rule that acceptance of a tender of goods acted as a release by the buyer of any
claim that the goods did not conform to the contract. See 5 Williston on
Contracts 714 (3d ed.1961). But the Uniform Sales Act did not go entirely to
the other extreme by allowing the buyer to accept goods without objection and
then assert claims for breach of contract at any time within the statute of
limitations period. See id. Instead, the Act "allow[ed] the buyer to accept the
offer without waiving any claims, provided the buyer gave the seller prompt
notice of any claimed breach." Southeastern Steel Co. v. W.A. Hunt Constr.
Co., 301 S.C. 140, 390 S.E.2d 475, 478 (1990). Courts have held that the same
understanding applies to section 2-607(3) of the U.C.C. See, e.g., id.; Eastern
Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 971 (5th Cir.1976).

20

Aqualon has argued that the U.C.C. provision does not apply to this case
because MAC had actual knowledge that its valves were inadequate long before
Aqualon's acceptance. Requiring further notice after acceptance would be
pointless, Aqualon argues. In support, Aqualon cites Jay V. Zimmerman Co. v.
General Mills, Inc., 327 F.Supp. 1198 (E.D.Mo.1971). In Jay V. Zimmerman
Co., the seller was unable to deliver the goods by the date specified in the
contract. The seller clearly knew that it was in breach of the contract when it

delivered the goods late, and the buyer did not formally notify the seller of its
intent to sue for breach after accepting the late goods. The court found that
section 2-607(3) did not apply in the situation where the seller had actual
knowledge of the breach at the time of delivery, holding that "[i]t would be an
unreasonable, if not absurd, construction of the statute to require a renewed
notice of breach after acceptance of the goods" in those circumstances. Id. at
1204.
21

Both previous and subsequent cases have rejected the reasoning of Jay V.
Zimmerman Co. Under the Uniform Sales Act predecessor to section 2-607(3)
"it was irrelevant whether a seller had actual knowledge of a nonconforming
tender. Instead, the critical question was whether the seller had been informed
that the buyer considered him to be in breach." Eastern Air Lines, Inc., 532 F.2d
at 972 (rejecting Jay V. Zimmerman Co.); see also 5 Williston on Contracts
714, at 409-10 (3d ed. 1961) ("It might be urged that the seller needs no notice
in case of delivery delayed beyond a date expressly fixed in the contract, for he
must be aware that he is violating the provisions of the contract, but though he
knows this he does not know whether the buyer is willing to accept deferred
delivery as full satisfaction, and in any event the words of the Statute seem
plain."). As the Southeastern Steel Co. court noted, Judge Learned Hand
"eloquently disposed of this imaginative, but fallacious, argument," 390 S.E.2d
at 480, that a seller's knowledge of a defective tender was sufficient notice of
breach:

22 plaintiff replies that the buyer is not required to give notice of what the seller
The
already knows, but this confuses two quite different things. The notice "of the
breach" required is not of the facts, which the seller presumably knows quite as well
as, if not better than, the buyer, but of buyer's claim that they constitute a breach.
The purpose of the notice is to advise the seller that he must meet a claim for
damages, as to which, rightly or wrongly, the law requires that he shall have early
warning.
23

American Mfg. Co. v. United States Shipping Bd. Emergency Fleet Corp., 7
F.2d 565, 566 (2d Cir.1925); see also Oxford Boatyard Co. v. Warman, 192
F.2d 638, 639 (4th Cir.1951) ("It is not enough that the defendant knew of the
defect ... since it did not know that plaintiff was claiming breach of warranty on
that account.").

24

Aqualon responds to this argument by pointing out that Judge Hand was
interpreting the predecessor to U.C.C. section 2607(3). Aqualon admits that
U.C.C. section 2-607(3) was patterned on the statute interpreted by Judge
Hand, but claims that the U.C.C. provision was drafted "with an eye towards

achieving less harsh results where the buyer is a 'retail consumer.' "
25

But numerous courts have applied Judge Hand's reasoning to cases involving
U.C.C. section 2-607(3). See, e.g., Standard Alliance Indus. v. Black Clawson
Co., 587 F.2d 813, 825 (6th Cir.1978); Eastern Air Lines, Inc., 532 F.2d at 97273. The reasoning is persuasive, and it produces no "harsh results" in this case.
Aqualon was required by section 2-607(3) to give formal notice to MAC, after
accepting the valves, that it still found the transaction troublesome. Only then
would MAC know not to assume a position of repose, but that it should attempt
either to cure the defect, negotiate a settlement or prepare for litigation.

26

Aqualon cites Arcor, Inc. v. Textron, Inc., 960 F.2d 710 (7th Cir.1992), for the
proposition that we should reject the "cramped" construction of section 2607(3) adopted by the district court in favor of a "more practical construction."
In Arcor, Inc., Aqualon argues, the Seventh Circuit recognized that the notice
requirement was fulfilled where the "seller has actual knowledge of the
product's failure based on the seller's own observations." Id. at 715. Aqualon
asserts that the Seventh Circuit has recognized that it would be absurd to
require buyers to notify sellers of a breach of which they were already aware.

27

Arcor, Inc. is easily distinguishable from the instant case, however. The buyer
in Arcor, Inc. notified the seller that the product would not perform as required
shortly after the buyer accepted it. During the following two years, the seller
visited the buyer approximately thirty times on service calls, attempting to
correct the problem with the machine. When these attempts were unsuccessful,
the buyer sued for breach of warranties. See id. at 711.

28

The Seventh Circuit was right to hold that in that case the seller had actual
knowledge of its breach and further notice would be pointless. The seller
clearly knew that the buyer found the transaction "still troublesome." But that
holding does not apply to the present situation, in which the buyer made no
complaints after accepting the seller's tender. Here, after Aqualon accepted and
paid in full, MAC had no way to know that Aqualon found the transaction "still
troublesome."

29

MAC admits it knew when it delivered the valves that they leaked more than it
had estimated, but it was not aware that Aqualon would consider this to be a
"breach" of anything. Although it had estimated maximum leakage amounts
before being awarded the contract, MAC had made it clear that any
performance warranty would be contingent upon MAC's approval in writing of
the final equipment-installation and convey-route line drawings. The drawings

were never approved by MAC. MAC and Aqualon later discussed a specific
performance guarantee that Aqualon was supposed to draft, but Aqualon never
drafted one. Furthermore, after Aqualon's original purchase order was sent,
MAC executed an Order Acknowledgment that expressly disclaimed both
express and implied warranties. MAC did not know, therefore, that Aqualon
would claim that the valves' excessive leakage rates constituted a breach of
contract or breach of warranty.
B. Aqualon's Pre-Acceptance Complaints Did Not Satisfy the
30
Requirements of U.C.C. Section 2-607(3)
31

Aqualon next argues that its complaints to MAC before the March, 1993,
reissuance of the purchase order for the valves satisfied the requirements of
section 2-607(3). Aqualon sent a letter to MAC on August 3, 1992, in which it
asserted that the valve leakage rates were "outside the performance
requirements of our purchase order" and that Aqualon "cannot accept valves
that will not perform." That letter was followed by continuous correspondence
"for the next six months regarding recommendations on how to correct and
solutions to the deficiency of the valves." During the six months Aqualon
commissioned more tests of MAC's valves and tested the valves of one of
MAC's competitors for a comparison. There is some evidence that no valve
then on the market had low enough leakage rates to perform in the system
which C.W. Nofsinger had designed. Aqualon was forced to redesign parts of
its system. Aqualon again asserted its right to reject valves that did not meet its
performance requirements in a letter of September 22, 1992. By March of 1993,
Aqualon explains, both it and MAC knew that the excess leakage could not be
remedied.

32

However, Aqualon's acceptance of the valves without comment after the six
months of letters dissipated the effect of its earlier complaints. See Eastern Air
Lines, Inc., 532 F.2d at 978. Knowing the leakage rates, Aqualon nevertheless
reissued its purchase order for the valves in March of 1993 and amended it in
April of 1993. In June of 1993 MAC's tender of the valves was accepted, and in
December Aqualon paid for the valves in full. Finally, in the winter of 1993
Aqualon told MAC that its system was working well, and the only problem it
mentioned was blower noise, which MAC fixed.

33

In short, MAC probably knew that Aqualon was not happy with the leakage
rates, but it could reasonably have believed that Aqualon was satisfied with the
valves. Because Aqualon did not inform MAC after accepting the tender that
the transaction was " still troublesome," MAC had no way to know that there

was any remaining problem to be cured, or any controversy to be negotiated

about or settled, or any impending litigation with which to be concerned, after
Aqualon reissued the purchase order for, accepted and paid for the valves.
Without any post-acceptance notice otherwise, MAC deserved to be able to rely
on the certainty of its contractual arrangement and to believe that a way had
been found to make the valves satisfactory.
34

Aqualon argues that the above argument is "disingenuous" because "MAC was
clearly aware, after working with Aqualon for over six months, that Aqualon
had no choice but to accept the valves and make changes to their own system in
order to make them work." MAC contests this assertion, but even if it is
perfectly true, once Aqualon made those changes MAC could not be expected
to know that Aqualon would still find the deal troublesome. MAC's knowledge
that changes to the system were required and were costly did not notify MAC
that Aqualon would blame MAC as opposed to C.W. Nofsinger, who designed
the system.

35

Aqualon further argues that to require post-acceptance notice is "unjust"

because time pressure forced it to accept the valves built by MAC despite their
inadequacy. This is irrelevant to the question whether MAC was given
reasonable notice in which to try to cure the problem, settle the claim, or
prepare for litigation. Aqualon asserts that "to find lack of notice because
[Aqualon] chose to accept the valves despite deficiencies which were known by
all parties, punishes Aqualon for attempting to minimize damages." But nothing
prevented Aqualon from accepting the valves to minimize damages while also
notifying MAC that it should prepare for future litigation.

36

Aqualon also argues that formally notifying MAC of the claim of breach was
impractical because it would have interfered with the business relationship
between the two companies. However, the desire to preserve a good business
relationship does not justify Aqualon's springing this lawsuit on MAC without
the reasonable notice required by the U.C.C. Furthermore, Aqualon's assertion
that it did not formally complain because it wanted to preserve its business
relationship undermines its claims that MAC had notice of the likelihood of
litigation.

C. The Purposes of the Notice Requirement Were Not Met

37
38

Acknowledging that it gave no additional notice after it accepted the valves that
the transaction was "still troublesome," Aqualon asserts that the purposes of the
notice requirement were met by MAC's actual knowledge that its valves were
inadequate. Aqualon argues that where those purposes have been satisfied, its

failure to comply with the technical requirements of the U.C.C. should not bar
it from litigating the case on the merits. See Prutch v. Ford Motor Co., 618
P.2d 657, 661 (Colo.1980) (en banc ) ("When, as here, the purposes of the
notice requirement have been fully served by actual notice, the notice provision
should not operate as a technical procedural barrier to deny claimants the
opportunity to litigate the case on the merits.").
39

Aqualon contends that three purposes of the notice requirement were met in this
case. The three purposes that Aqualon identifies for the U.C.C.'s notice
requirement are:

40 to prevent surprise and allow the seller the opportunity to make

(1)
recommendations on how to cure the nonconformance;
41 to permit the seller the fair opportunity to investigate and prepare for litigation;
(2)
and
(3) to open the way for normal settlement of claims through negotiation.
42
43

Aqualon, however, neglects to include a further purpose identified by the

district court:

44 to protect the seller from stale claims and provide certainty in contractual
(4)
arrangements.
45

Cf. 1 James J. White & Robert S. Summers, Uniform Commercial Code 1110, at 612-13 (4th ed.1995) (listing these purposes, as well as the purpose of
recognizing a general disbelief of tardy claims). Assuming, without deciding,
that satisfaction of these four purposes would obviate the need to comply with
the terms of the statute, Aqualon cannot demonstrate that the purposes were
satisfied.

46

First, the notice requirement provides an opportunity for the seller to cure the
defect. See, e.g., Hebron v. American Isuzu Motors, Inc., 60 F.3d 1095, 1099 n.
2 (4th Cir.1995). MAC knew in August of 1992 that its valves would leak far
more than stated in its original proposal. Both MAC and Aqualon worked
together for the next six months to try to modify Aqualon's system design to use
those valves, because both parties knew that nothing more could be done to
improve the performance of the valves. Because MAC had in excess of six
months to effect a cure 2 and was unable to do so, Aqualon contends that the
first purpose of the notice requirement was satisfied.

47

Second, the notice requirement is intended to give the seller a fair chance to
prepare for litigation, for example by gathering documents and taking
depositions while the evidence is still available and memories are still fresh.
See, e.g., Cole v. Keller Indus., 872 F.Supp. 1470, 1474 (E.D.Va.1994),
vacated on other grounds, 132 F.3d 1044, 1047-48 (4th Cir.1998). Aqualon
asserts that this purpose was fulfilled because MAC knew of the possibility of
litigation by virtue of its knowledge that the system as originally designed did
not work with the leaky valves. However, as explained above, the
aforementioned knowledge demonstrates that MAC knew the facts, but not that
MAC knew that Aqualon would consider these facts to constitute a breach of
warranty. Aqualon's acceptance of and full payment for the valves without
further complaint, knowing their leakage rates, communicated to MAC that the
valves were acceptable.

48

Third, the notice requirement prompts negotiation and settlement of claims.

See, e.g., Hebron, 60 F.3d at 1098-99. If MAC had been notified more
promptly after Aqualon's acceptance of the valves that Aqualon intended to sue
MAC (specifically, before Aqualon filed its complaint), it might have settled
the underlying claim. Because MAC would not have had to undertake the
expenses of litigation that arose when it had to respond to Aqualon's complaint,
MAC would likely have offered more money in settlement of the claim. And
because Aqualon would not yet have invested in litigation by paying lawyers to
prepare and file the complaint, Aqualon would presumably have agreed to
receive less money in settlement of its claim. In this way, earlier notice would
have led to a greater chance of settlement. Aqualon's bare assertion that "MAC
has suffered no detriment with respect to the options of settlement," just
because settlement efforts were unsuccessful, is mistaken.

49

Finally, the notice requirement is intended to protect the seller from stale claims
and provide certainty in contractual arrangements. See id. Aqualon argues that
using a notice requirement to give peace of mind to a defendant and to protect
against stale claims is inappropriate and unnecessary because that purpose is
served by a statute of limitations. It is true that a state may decide to serve these
policies through a strict statute of limitations. But a state may also choose to
enact a notice requirement in addition to a longer statute of limitations. Such a
two-part scheme preserves claims of which the defendant has not been notified
for only a short period of time, but if the defendant has been notified, it
preserves those claims for a longer period. The Delaware equivalent of U.C.C.
section 2-607(3) combines with Delaware's statute of limitations to create just
such a scheme. Because Aqualon made no complaints to MAC for three years
after accepting the valves, MAC was entitled to assume a position of repose.

D. Aqualon's Delay of Three Years Was Not Notification

50
Within a Reasonable Time
51

Finally, Aqualon argues that even if its pre-acceptance complaints did not serve
to notify MAC that it found the transaction "still troublesome," Aqualon's
service of a civil complaint on MAC approximately three years after accepting
the valves was notification within a "reasonable time," satisfying U.C.C.
section 2-607(3).3 The district court found that such a delay was unreasonable,
relying on our statement in Hebron that "[i]n the circumstances of this case, we
hold that a two-year delay in giving notice under [the Virginia equivalent of
U.C.C. section 2-607(3) ] is unreasonable as a matter of law where no
explanation for the delay is provided and actual prejudice is sustained." 60 F.3d
at 1098.

52

Aqualon asserts that, unlike the plaintiff in Hebron, it had good reasons for
delay. The reasons it provides boil down to simply that Aqualon was slow in
figuring out that it wanted to blame MAC for the cost over-run in designing its
system.4 Furthermore, Aqualon offers no explanation whatsoever for the delay
of a year after filing its complaint against MAC before Aqualon served MAC
with the complaint.

53

Aqualon also asserts that the delay was not unreasonable because MAC has not
suffered any prejudice from the delay. MAC claims that there was prejudice to
its case because of faded memories and lost documents, and gives an example
of a lost document. Aqualon argues in rebuttal that the named document would
have been irrelevant to MAC's case. We cannot tell whether the document
would have been helpful because, it being lost, we cannot know exactly what
information it contained. Furthermore, we cannot tell whether there may have
been other pertinent documents available three years before MAC was served
that were lost and have been forgotten during its period of repose. These
considerations demonstrate why, although prejudice is relevant to whether a
delay was reasonable, no showing of prejudice is required to make section 2607(3) applicable.

III.
54

The district court correctly denied Aqualon's motion to remand the case and
correctly dismissed Aqualon's contract and warranty claims because of
Aqualon's failure to notify MAC of those claims within a reasonable time after
accepting tender of the valves. The district court's judgment is

55

AFFIRMED.

The purchase orders for the rotary airlock valves each contain a choice of law
provision specifying that disputes over the items addressed therein shall be
governed by Delaware law. The district court applied Delaware law to
Aqualon's breach of contract and breach of warranty claims. Because Delaware
(and Virginia, site of the Aqualon production facility) has adopted Uniform
Commercial Code section 2-607(3) without modification, see Del.Code Ann.
tit. 6, 2-607; see also Va.Code Ann. 8.2-607 (Michie), we refer to the
U.C.C. directly instead of any provision of state law

Aqualon unknowingly admits much by its repeated assertions that MAC had
"full notice for over six months" that its valves were nonconforming. Aqualon's
six month figure presumably is measured from MAC's letter of August 3, 1992,
acknowledging that the valves would not meet the estimated leakage values, to
Aqualon's March 1993 reissuance of the purchase order. The important point is
that Aqualon stops counting the time that MAC knew its valves were
unacceptable at the date when Aqualon reissued the purchase order; Aqualon
implicitly recognizes that MAC did not know its valves were still unacceptable
after Aqualon reissued the purchase order
If Aqualon truly believed MAC still knew its valves were unacceptable and
might trigger a lawsuit after reissuance of the purchase order, Aqualon would
have claimed that MAC had 10 months notice (until June 1993 when the valves
were shipped), over a year's notice (until they were paid for in full), or more
than 5 years notice (from the time of its letter until today) to try to cure the
defect.

MAC urges that we should follow the "majority" of courts to address the issue
and hold that notice-via-lawsuit is insufficient as a matter of law, citing cases
such as Chemtrol Adhesives, Inc. v. American Mfrs. Mut. Ins. Co., 42 Ohio
St.3d 40, 537 N.E.2d 624, 638 (1989), and Lynx, Inc. v. Ordnance Prods., Inc.,
273 Md. 1, 327 A.2d 502, 514 (1974). But MAC's assertion that this is the
"majority" position recognizes that courts in other jurisdictions disagree. In fact,
the Chemtrol Adhesives, Inc. court declined to adopt such a per se rule. See 537
N.E.2d at 638. We decline to resolve this issue of first impression under
Delaware law

MAC points out that Aqualon at first chose to blame C.W. Nofsinger, and
prepared to file suit against it