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Kimmins Abatement Corp. v. Conestoga-Rovers & Associates Inc.

Decided: July 19, 1991.

KIMMINS ABATEMENT CORP., A DELAWARE CORPORATION, AND KIMMINS INDUSTRIAL SERVICE CORP., A DELAWARE CORPORATION, PLAINTIFFS-RESPONDENTS,
v.
CONESTOGA-ROVERS & ASSOCIATES, INC., A NEW YORK CORPORATION, DEFENDANT-APPELLANT



SOMERSET COUNTY

Arnold, P.J.Cv.

Arnold

ARNOLD, P.J.Cv.

The defendant, Conestoga-Rovers & Associates, Inc., (CRA) moved to dismiss plaintiff's complaint pursuant to the entire controversy doctrine, R. 4:30A. The motion raised the novel issue of whether the entire controversy doctrine bars this action because of the plaintiff's failure to join CRA as a party in a first lawsuit in another state. This opinion is intended to supplement the court's oral decision rendered in open court on July 19, 1991.

Briefly, the material facts are as follows: The Manville Sales Corporation (Manville) owns a manufacturing facility located in Manville, New Jersey. That facility had been used to manufacture asbestos products and in June 1989 Manville entered into two contracts for the clean up of that facility with Kimmins Abatement Corporation and Kimmins Industrial Service Corp., (collectively Kimmins). The clean up work was to be completed by Kimmins by July 1990. Manville hired CRA to act as Manville's onsite representative for the purpose of administering the contracts between Manville and Kimmins, inspecting the work and reporting on Kimmins' performance.

Manville is a Delaware corporation whose principal place of business is in Denver, Colorado. Kimmins is a Delaware corporation whose principal place of business is in Niagara Falls, New York. The contracts provided that Kimmins submitted to the jurisdiction of the Colorado courts.

In February 1990, Manville terminated both contracts with Kimmins and brought suit in the District Court in the City and County of Denver, State of Colorado, seeking declaratory judgment as to Manville's rights and remedies upon termination and seeking damages for Kimmins' alleged breach of contract. Kimmins filed a counterclaim in that first lawsuit asserting four contract claims and two tort based claims. Included in Kimmins' counterclaim was a count entitled "Arbitrary Supervision and Constructive Changes By Manville's Construction Supervisor" which was based upon allegations that CRA acted

improperly and negligently in supervising the project; interfered with Kimmins' contractual relationship with Manville and negligently recommended that Manville terminate the contracts with Kimmins. The counterclaim stated that Manville was responsible for CRA's actions under the doctrine of respondeat superior. Kimmins never joined CRA as a defendant in this first lawsuit and under the Colorado Rules of Civil Procedure was not required to do so. CRA, a New York corporation having its principal place of business in Niagara Falls, New York, submitted to the jurisdiction of the Colorado Court for discovery purposes only, and expressly reserved the right to contest any further exercise of jurisdiction.

There was extensive discovery in the Colorado lawsuit including approximately 200 days of depositions and the production of 125,000 pages of documents. Kimmins, represented by New Jersey counsel, subjected CRA to extensive discovery including 54 days of depositions of CRA's employees and production of 28,000 pages of documents. On February 8, 1991, the Colorado lawsuit was settled and the Colorado District Court entered an order of dismissal with prejudice.

On March 25, 1991, Kimmins brought suit against CRA in the Superior Court of New Jersey -- Somerset County. Kimmins' complaint in this lawsuit (hereinafter the second lawsuit) alleges the following causes of action against CRA in connection with CRA's administration of the contracts between Manville and Kimmins: malicious interference with prospective economic advantage, negligence, conspiracy to interfere with contractual relations, conspiracy to interfere with prospective economic advantage, libel and slander by CRA. In lieu of an answer, CRA filed a motion to dismiss pursuant to R. 4:30A, the entire controversy doctrine.

In opposing this motion Kimmins argued first that the entire controversy doctrine is not applicable because the factual issues and the allegations in the second lawsuit are not substantially similar to those in the first lawsuit. This court rejects that

first argument for two reasons. First, an examination of Kimmins' counterclaim in the first lawsuit and the complaint in the second lawsuit shows that there is substantial similarity in the factual issues and allegations. A lengthy analysis supporting this conclusion is not warranted because Kimmins' counsel, in seeking admission pro hac vice before this court, admitted such substantial similarity between the two lawsuits. See Levin v. Robinson, Wayne & LaSala, 246 N.J. ...


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