MEMORANDUM AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Defendant has moved to dismiss the complaint in this action, which alleges that it breached a contract to purchase ethanol from Plaintiff. Because, even interpreting the allegations of the complaint most favorably to Plaintiff, there was no such contract, Defendant’s motion is GRANTED. BACKGROUND Plaintiff Kolmar Americas, Inc. (“Kolmar” or “Plaintiff”) is a petroleum commodities trader. It engaged in negotiations for the sale of goods — specially, ethanol — with Defendant Mycone Dental Supply Co., Inc., which does business under the name Keystone Industries (“Keystone” or “Defendant”). The parties began their discussions via email in August 2020, looking toward a deal pursuant to which Kolmar was to supply Keystone with ethanol for the 2021 calendar year. As set forth in the complaint, this email exchange extended through early September of 2020. Kolmar alleges that the emails evidence a binding agreement. Keystone disagrees. Facts The following facts are taken from the complaint and its exhibits. For the purposes of this motion they are presumed to be true. Kolmar made Keystone a firm offer to sell Defendant ethanol in an email dated August 17, 2020. (Complaint filed in Kolmar Americas Inc. v. Mycone Dental Supply CO., Inc., 21-cv-02361, dated March 18, 2021, Docket No. 1 (the “Complaint” or “Compl.”), 9). That email said “Please see our indicative offer for the supply of ethanol to Keystone for 2021, with validity through Thursday August 20th. We look forward to the opportunity to supply ethanol to Keystone as your sanitizer business grows.” (Compl., Ex. A). On August 20, 2020, Keystone responded to Kolmar’s email as follows: “We are still developing our forecast for 2021 so would need to have some flexibility in the volume requirements. Would it be possible to put a range into the contract of between 3-6 trucks per week? I foresee that the volumes will build during the year but there is some uncertainty on the timing for the build. I am confident in the 3 per week. Please let me know if this is acceptable and then we can start working on specifics and key information. Look forward to working together to move this forward.” (Compl., Ex. B). On August 21, 2020 Kolmar responded with a second “firm offer” that allegedly included all material terms. (Compl. 11). Kolmar wrote, “Based on your feedback please find below a recap of what we can agree to which we think also satisfies the considerations you expressed. Please let us know by Monday US opening that this works for you. Upon timely receipt of your confirmation this agreement would still be subject to seller concluding successful KYC by Friday 28th August.” (Compl., Ex. C). The “recap” attached is a chart summarizing the contemplated terms of the transaction, including: product specifications, delivery term/period, price per gallon, delivery location, delivery notice requirement, delivery mode, inspection terms, quality and quantity determination method, payment terms, credit terms, and choice of law and jurisdiction terms. (Id. at p. 2-3.) On August 26, 2020 Keystone emailed Kolmar, confirming Keystone’s intention to proceed with the August 21 offer, but conditioned on Kolmar’s signing Keystone’s quality agreement. (Compl. 12). Keystone wrote, “I wanted to confirm with you that we will proceed with your offer for ethanol supply for 2021. Brian from our purchasing team will be working with your team to complete all the necessary information for supply. We will also need you to sign our quality agreement as well.” (Compl., Ex. D). On September 2, 2020 Kolmar emailed Keystone a marked-up copy of Keystone’s quality agreement and an “updated recap” — the chart detailing the terms of the transaction. Kolmar’s mark-up of the quality assurance form crossed out multiple clauses, including the obligation to maintain a quality system in conformance with the FDA’s good manufacturing practice requirements, and the obligation to provide quality control and/or specification information as needed for Keystone to meet regulatory requirements. (Compl., Ex. E at 8-9). The updated recap differed from its predecessor in one important respect: instead of saying that payment was due “As per Kolmar’s Credit Department’s requirements,” (Compl. Ex. C), it said that “prepayment” was required. (Compl., Ex. E). Keystone did not respond to this communication. On September 10, 2020, Kolmar emailed Keystone a thirteen page, singled-spaced, unsigned Term Agreement, which, according to the cover message, purported to memorialize the deal between the parties for the sale of ethanol (the “Term Agreement”) (Compl. 17; Compl. Ex. F). The Term Agreement introduced new terms that had never before been proposed to Keystone, including finance charges, security interest assignments, exclusions of warranties, title transfer and risk of loss provisions, statutes of limitations, tax responsibilities, limitations of liabilities, and confidentiality obligations. Id. Moreover, the Term Agreement did not incorporate Keystone’s quality assurance form. And the Term Agreement provided that “Section 1 — Commercial Terms and Conditions (‘Section 1′) and the other terms and conditions as described in Section 2 — other Terms and Conditions (‘Section 2′), together represent the entire understanding between the Parties and may not be contradicted by evidence of any prior agreement or of a contemporaneous agreement.” Id. at 3. Again, Keystone did not respond to the email, Neither party ever signed the Term Agreement. On September 16 representatives of Plaintiff and Defendant spoke by telephone. The Keystone trader asked Kolmar’s trader for a lower price in-light of a drop in the market price for ethanol. Kolmar’s trader responded, “the agreement was already concluded.” (Compl. 20) and demanded adequate assurance of Keystone’s intention to perform under the Term Agreement. (Compl.
21-22). On October 14, 2020, Keystone emailed Kolmar stating, “Sorry for the slow response in reviewing the contract but Keystone has decided not to proceed with this contract.” (Compl. 23, Ex. H). Kolmar responded to Keystone’s email the next day, asserting that Kolmar was terminating the purported agreement in light of Keystone’s anticipatory breach, while reserving its right to “hold Keystone liable for all damages.” (Compl. 24). According to Kolmar, Keystone’s October 14 email stating that Keystone “decided not to proceed with this contract” confirmed that the parties had already entered a binding contract, and therefore constituted an anticipatory breach. (Compl. 25). Kolmar further alleges that Keystone’s refusal to provide adequate assurance of performance constituted a repudiation of the contract or an anticipatory breach of the agreement, entitling Kolmar to damages. (Compl.
