Jennings that CMI never sampled, sold, supplied or shipped Nyalene containers to CIBA in 1988, CIBA negligently, intentionally and maliciously failed to advise the EPA that the ... Study findings reported in the [11 February 1993 Letter] were false...." Id., P 43. According to CMI as a result of the Prohibition Notice and other communications, "CMI suffered immediate lost sales, lost profits and other damages. Id., P 39. Further, "CMI's reputation for superior products, quality control and excellence in barrier technology and unique container design [has been] irreparably damaged as a result of CIBA's actions." Id.. P 40. Also, the Amended Complaint alleges: "J.T. Jennings' reputation in the industry [has been] irreparably damaged as a result of CIBA's actions." Id., P 41.
The Amended Complaint alleges five counts against CIBA: Count One, "Plaintiffs have suffered and will continue to suffer damages in lost sales, in lost profits, by the injury to trade name and reputation and to its registered trademark, and other damages," because of CIBA's negligence; Count Two, intentional, malicious and willful acts; Count Three, defamation; Count Four, tortious interference with contractual relations; and Count Five, tortious interference with prospective economic advantage. Id., PP 50-54.
In the instant motion, CIBA contends that, as a matter of law, summary judgment is appropriate as to all claims asserted by J.T. Jennings because there are no allegations in the Amended Complaint of any alleged wrongs committed by CIBA directed against him individually. Moving Brief at 4. In addition, CIBA contends that summary judgment is appropriate as to Count One of the Amended Complaint because under New Jersey law negligent publication of falsehoods about a corporation's product is not actionable when the publication involves a matter of legitimate public concern. Id. at 6.
A. Summary Judgment Standard of Review
To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The present task is to determine whether disputed issues of fact exist, but a district court may not resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (holding that disposition of libel case by summary judgment was appropriate where as a matter of law no rational jury could find actual malice by clear and convincing evidence) see also Desvi, Inc. v. Continental Ins. Co., 968 F.2d 307, 308 (3d Cir. 1992) ("threshold inquiry is whether there are 'genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party'") (citations omitted); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992) ("We apply the test . . . (1) Is there no genuine issue of material fact and (2) is one party entitled to judgment as a matter of law?") (quotations omitted) Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) ("summary judgment is inappropriate when a conflict of a material fact is present in the record"); Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991) (summary judgment may not be granted "if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed").
All evidence submitted must be viewed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Williams v. New Castle County, 970 F.2d 1260, 1264 (3d Cir. 1992); Boyle v. Governor's Veterans Outreach & Assistance Ctr., 925 F.2d 71, 75 (3d Cir. 1991); Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990); Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989). "Any 'unexplained gaps' in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment." Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502 (3d Cir. 1990) (quoting O'Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir. 1989)).
Although the summary judgment hurdle is a difficult one to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed out to the court the absence of a genuine issue of material fact,
its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial."
Matsushita, 475 U.S. at 586-87 (emphasis in original, citations and footnotes omitted). In other words, the inquiry involves determining "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990) (quoting Anderson, 477 U.S. at 251-52), cert. denied sub nom., Roselle v. Brown, 501 U.S. 1218, 115 L. Ed. 2d 997, 111 S. Ct. 2827 (1991); see also Gray, 957 F.2d at 1078 ("there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party").
The Supreme Court elaborated on the summary judgment standard in Anderson: "If the evidence [submitted by a party opposing summary judgment] is merely colorable, or is not significantly probative, summary judgment may be granted." 477 U.S. at 249-50 (citations omitted). The Supreme Court went on to note in Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986): "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose." Id. at 323-24 (footnote omitted); see also Coolspring Stone Supply, Inc. v. American States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993) ("nonmoving party must adduce more than a mere scintilla of evidence in its favor") Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 72 (3d Cir. 1990) (non-moving party may not rest upon mere allegations); Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (neither unsupported allegations in pleadings and memoranda of law nor conclusory allegations in affidavits will establish genuine issue of material fact); Aronow Roofing Co. v. Gilbane Bldg. Co., 902 F.2d 1127, 1128 (3d Cir. 1990) ("summary judgment will be granted where the non-moving party fails to 'establish the existence' of an element essential to the case").
B. The Claims of J.T. Jennings
A Federal court, in a diversity case, must apply the law of the state in which the court sits to resolve substantive questions of state law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 58 S. Ct. 817 (1938); Micromanolis v. Woods School, Inc., 989 F.2d 696, 698 (3d Cir. 1993); Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 487 (3d Cir. 1985). Accordingly, the decisions of the New Jersey Supreme Court will control issues of substantive law in the instant motion.
J.T. Jennings asserts by way of his allegations in the Amended Complaint that he has "suffered and will continue to suffer damages in lost sales, in lost profits, by the injury to trade name and reputation and to [CMI's] registered trademark, and other damages."
Amended Complaint, PP 50-54. As argued in the Opposition Brief, J.T. Jennings, in his individual capacity, seeks relief for the "damages he has personally sustained...." Opp. Brief at 36.
In an analogous case, the court in Pepe v. General Motors Acceptance Corp., 254 N.J. Super. 662, 604 A.2d 194 (App. Div. 1992), cert. denied, 130 N.J. 11, 611 A.2d 650 (1993), explained: "The law is clear and uniform: shareholders cannot sue for injuries arising from the diminution in value of their shareholdings resulting from wrongs allegedly done to their corporations." 254 N.J. Super. at 666; see also Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1278 (3d Cir. 1994) (agreeing with district court's holding that "individual stockholders did not have standing because an action for injury to [a] corporation ... must be pursued in the name of the corporation"); Insurance Consultants of Am. v. Southeastern Ins. Group, Inc., 746 F. Supp. 390, 413 (D.N.J. 1990) (explaining in RICO context: "shareholders of a corporation do not have standing to sue for its derivative claims").
In Pepe, plaintiffs, owners of several bankrupt corporations, brought a lender liability action for damages stemming from the demise of their corporations. Pepe, 254 N.J. Super. at 664. The complaint in Pepe alleged, among other causes of action, "intentional, negligent and reckless" conduct, "malicious interference" with contractual relations, and "willful or negligent destruction of [one of the plaintiff's] name in [the] financial dealings with others...." Id. at 664-65.
The Appellate Division in Pepe affirmed the trial court's dismissal of the plaintiffs' complaints because the claims all derived from alleged corporate injuries that could not be asserted by plaintiffs in their individual capacities. Id. at 666. The court explained:
The causes of action pleaded by the [plaintiffs] all assert losses sustained by them as the result of the destruction of their corporations. As such, the claims are entirely derivative of causes of action which, but for their release by the bankruptcy stipulation, would be available to the corporations.