filed: September 8, 1994; As Corrected October 5, 1994. .
On Appeal From the United States District Court for the District of New Jersey. (D.C. Civil No. 92-cv-00486).
Before: Becker, Hutchinson, Circuit Judges and Padova, District Judge*fn*
This appeal is from an order of the district court dismissing with prejudice under Federal Rule of Civil Procedure 12(b)(6), the products liability personal injury complaint of plaintiffs, some forty-nine former employees of Engelhard Corporation's manufacturing plant in Newark, New Jersey. Plaintiffs' complaint alleges that between 1971 and 1982, while working for Engelhard, they contracted pulmonary injury as the result of their exposure to hazardous "airborne silica particles" supplied by defendant E.I. DuPont de Nemours & Company, and released during Engelhard's metal reclamation process. With the exception of John Wojenski, all the plaintiffs had previously sued DuPont, alleging that they had sustained pulmonary disease from asbestos exposure to the same material during the same period.*fn1 That suit resulted in summary judgment for DuPont, which we affirmed on appeal in an unpublished opinion. See Bradley v. DuPont, No. 91-5206 (3d Cir. Dec. 24, 1991) cert. denied, 112 S. Ct. 1706 (1992).
The district court concluded that plaintiffs' present lawsuit was barred by New Jersey's entire controversy doctrine, and the doctrine of collateral estoppel. Plaintiffs contended that they are not bound by the prior adverse judgment because: (1) their allegations of exposure to silica constitute a different cause of action, which was not and could not have been part of the earlier suit; and (2) they had brought new claims (for fraud and misrepresentation, medical surveillance, and emotional distress), which also were not considered in the prior action. The court rejected these contentions.
The case had metamorphosed from one alleging asbestos exposure to one alleging silica exposure based on a chemist's report stating that asbestos decomposes after incineration into the substances forsterite and silica. Plaintiffs learned of this theory during the prior proceedings in the district court, whereupon they sought to amend their complaint to allege silica exposure, but the district court denied their motion and our earlier opinion affirmed that denial.
The district court's order dismissing the complaints in the instant case was plainly correct with respect to all the plaintiffs but Wojenski. Both res judicata and the New Jersey entire controversy doctrine bar those claims, and we will affirm that portion of the order without Discussion. However, we reach a different result as to Wojenski, who was not a party to the prior action. We find defendant's contention, accepted by the district court, that Wojenski's claim is barred because he was in privity with the other plaintiffs, to be fatally flawed.
None of the three potential ways in which Wojenski might be bound by the earlier judgment applies here. First, the earlier plaintiffs might have been "virtual representatives" of Wojenski, but that is not the case because no legal relationship entitled the prior plaintiffs to represent Wojenski. Second, Wojenski might have controlled the prior litigation, but there is no such evidence. Third, the prior litigation might have been considered a class action and Wojenski a member of the class, but the district court did not certify the prior action as a class action and did not provide notice to prospective plaintiffs. We will therefore vacate the district court's order as to Wojenski and remand for further proceedings.
Under New Jersey law, which applies here, claim and issue preclusion only apply to parties or to those in privity with them. See Wunschel v. City of Jersey City, 96 N.J. 651, 477 A.2d 329, 333 (N.J. 1984). In the famous words of Judge Goodrich: "privity states no reason for including or excluding one from the estoppel of a judgment. It is merely a word used to say that the relationship between the one who is a party on the record and another is close enough to include that other within the res judicata." Bruszewski v. United States, 181 F.2d 419, 423 (3d Cir. 1950) (Goodrich, J., Concurring), cert. denied, 340 U.S. 865, 71 S. Ct. 87, 95 L. Ed. 632 (1950), quoted in part in Moore v. Hafeeza, 212 N.J. Super. 399, 515 A.2d 271, 274 (N.J. Super. 1986).
A relationship is usually considered "close enough" only when the party is a virtual representative of the non-party, or when the non-party actually controls the litigation. As the New Jersey Superior Court explained in Moore :
Generally, one person is in privity with another and is bound by and entitled to the benefits of a judgment as though he was a party when there is such an identification of interest between the two as to represent the same legal right, or if a person who is not a party controls or substantially participates in the control of the presentation on behalf of a party, Restatement, Judgments 2d, § 39, or if a person who is not a party to an action is represented by a party, including an "official or agency invested by law with authority to represent the person's interests." Id. § 41(d).
515 A.2d at 273 (citation omitted). The scope of privity, while largely freed from the very constrictive common law mutuality anchor, remains small. See generally Romano v. Kimmelman, 190 N.J. Super. 554, 464 A.2d 1170, 1174-75 ...