BASSLER, DISTRICT JUDGE:
Defendant Foremost Cold Storage, Inc. ("Foremost") has moved under Federal Rule of Civil Procedure 56 for summary judgment dismissing the complaint of plaintiff Gerald Itzkoff, an individual partnership doing business as Gerald Itzkoff ("Itzkoff"), pursuant to New Jersey's entire controversy doctrine. For the reasons set forth below, the Court will grant Foremost's motion and dismiss plaintiff's complaint.
Plaintiff Gerald Itzkoff is an individual conducting business as a fur trader in the fur district of New York, New York. In that capacity, plaintiff sometimes utilized the storage facilities of defendant Foremost to store furs until they were sold.
From 1987 through 1992, plaintiff stored furs at Foremost's storage facility located at 220 Ellison Street, Paterson, New Jersey. At some point while plaintiff's furs were being stored at defendant's facility, some furs were allegedly damaged by contamination or pickle brine. Plaintiff was notified of the damage to its furs on or about May 15, 1992.
When notified of the damage to the furs, plaintiff contacted its insurance broker, Elliot Wexelman ("Wexelman"), and Wexelman's employer, Lustig Brokerage Co., Inc. ("Lustig"). Wexelman informed Itzkoff that Itzkoff's policy did not cover any goods located at the Foremost facility in Paterson.
In July of 1992, plaintiff commenced an action in the Supreme Court of the State of New York ("the New York action"), and plaintiff filed an amended complaint in August of 1992. See Amended Complaint, McKinney Cert., Exh. A. Plaintiff named Wexelman and Lustig as defendants, as well as ASE Corporation ("ASE") (collectively, "the insurance defendants"). ASE was a corporation for whom Wexelman had worked at the time he placed the relevant insurance for Itzkoff. The essence of plaintiff's allegations in the New York action was that the insurance defendants had failed to provide insurance coverage that would indemnify plaintiff in the event that certain risks of loss occurred to its furs at various locations, including the Paterson facility. Plaintiff sought monetary damages in the amount of $ 250,000.
In January of 1993, Itzkoff instituted a separate action in this Court ("the federal action") against F&G Realty of New Jersey, Corp., d/b/a Foremost Cold Storage ("F&G"). See Complaint, McKinney Cert., Exh. C. Plaintiff alleged that the negligence of F&G caused damage to the furs that had been stored at the Paterson facility.
In March of 1993, Wexelman and Lustig instituted a third-party suit in the New York action against (i) Foremost Cold Storage, Inc. (the movant herein), (ii) Foremost Cold Storage of New York, Inc. (an entity that had nothing to do with the New Jersey entity that owned and operated the storage facility), and (iii) F&G (an entity that in 1991 had leased the Foremost facility in Paterson with an option to purchase the facility). See Third Party Complaint, McKinney Cert., Exh. B. The insurance defendants alleged that the third-party defendants' negligence caused the damage to the furs. Itzkoff never amended its complaint to assert a direct claim against any of the third-party defendants.
In May of 1993, Foremost filed a verified answer to the third-party complaint. See Matarazzo Aff., Exh. A. Foremost's answer included several affirmative defenses, including the alleged lack of jurisdiction over the person of third-party defendant Foremost as a result of alleged improper and ineffective service of the third-party complaint. F&G did not appear in the New York action and defaulted.
In November of 1993, this Court issued a notice of call for dismissal of plaintiff's federal court action based upon plaintiff's failure to effect service of the summons and complaint upon F&G within 120 days of the filing of the complaint. See Fed. R. Civ. P. 4(m). F&G was never served with the summons and complaint, but in February of 1994, plaintiff filed an amended complaint naming Foremost--the movant herein and already a third-party defendant in the New York action--as a defendant. See McKinney Cert., Exh. D. Foremost answered the complaint in March of 1994.
The New York action was tried before a jury in July and August of 1994. Itzkoff claimed that Wexelman and Lustig were negligent toward and breached their contract with Itzkoff on January 3, 1992, the date of the inception of the contract of insurance which allegedly should have provided coverage for the Foremost facility in Paterson. The third-party action of Wexelman and Lustig against Foremost was also presented to the jury as a matter joined but not consolidated for trial. The third-party plaintiffs argued that if they were liable to plaintiff for not obtaining the proper insurance coverage, then Foremost was liable to them as the party that caused the damage to the furs. Foremost put forth a defense theory to the jury that the damage to the furs occurred while the furs were under the watch of F&G in 1991, when F&G was allegedly running the warehouse.
The judge who presided over the New York jury trial asked the jury to determine what percentage of the negligence of the insurance defendants, if any, was attributable to Foremost. On August 11, 1994, the jury returned a verdict which found (i) that Wexelman was liable to plaintiff, (ii) that Foremost failed to exercise reasonable care for the safety of plaintiff's furs, and (iii) that Foremost was liable to Wexelman for 67.7% of the $ 177,000 Wexelman was found to owe to Itzkoff.
Foremost next filed this motion for summary judgment. Foremost argues that Itzkoff's complaint against it must be dismissed pursuant to New Jersey's entire controversy doctrine. For the reasons set forth below, the Court agrees and will dismiss plaintiff's complaint.
A. Summary Judgment Standard
The standard for granting summary judgment pursuant to Federal Rule of Civil Procedure 56 is a stringent one. Summary judgment is appropriate only if all the probative materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In determining whether there remain any genuine issues of material fact, the court must resolve all reasonable doubts in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). Significantly, "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Under the standards announced by the Supreme Court's trilogy in Celotex Corp v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), Anderson, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original). Indeed, where the moving party has made a properly supported motion for summary judgment, it is incumbent upon the nonmoving party to come forward with specific facts to show that there is a genuine issue of material fact for trial. Id. at 248. Thus, once the moving party has carried its burden of establishing the absence of genuine issues of material fact, the nonmoving party "may not rest upon mere allegations or denials" of its pleadings, Fed. R. Civ. P. 56(e), but must produce sufficient evidence that will reasonably support a jury verdict in its favor, id. at 249; J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring), and not just "some metaphysical doubt as to material facts." Matsushita, 475 U.S. at 586.
Moreover, "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. If the evidence is merely colorable or is not significantly probative summary judgment may be granted." Anderson, 477 U.S. at 249-50. "Consequently, the court must ask whether, on the summary judgment record, reasonable jurors could find facts that demonstrated, by a preponderance of the evidence, that the nonmoving party is entitled to a verdict." In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 860 (3d Cir. 1990).
B. Entire Controversy Doctrine
1. General Principles
"The New Jersey entire controversy doctrine is a particularly strict application of the rule against splitting a cause of action." Bennun v. Rutgers State University, 941 F.2d 154, 163 (3d Cir. 1991). The doctrine precludes a plaintiff from litigating claims that were or could have been litigated in a prior proceeding and further bars claims against parties who should and could have been named in the prior action but were not. Cogdell v. Hospital Center at Orange, 116 N.J. 7, 25-26, 560 A.2d 1169 (1989).
Following the Supreme Court's decision in Cogdell, the entire controversy doctrine was codified at New Jersey Court Rule 4:30A, which provides as follows:
Non-joinder of claims or parties required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine.
N.J. Ct. R. 4:30A. "The point of the doctrine is that 'a component of a controversy may not be unfairly withheld, and a withholding is by definition unfair if its effect is to render the pending litigation 'merely one inning of the whole ballgame.'" Electro-Miniatures Corp. v. Wendon Co., Inc., 889 F.2d 41, 45 (3d Cir. 1989) (quoting William Blanchard Co. v. Beach Concrete Co., Inc., 150 N.J. Super. 277, 294, 375 A.2d 675 (App. Div. 1977) ("Blanchard")). The entire controversy doctrine may preclude an action against one who was not, but could have been, a party to the earlier action, Cogdell, 116 N.J. 7 at 26, but "the party whose claim is being sought to be barred must have had a fair and reasonable opportunity to have fully litigated that claim in the original action." Cafferata v. Peyser, 251 N.J. Super. 256, 261, 597 A.2d 1101 (App. Div. 1991) (citations omitted).
Subject matter jurisdiction in this action is based upon diversity of citizenship under 28 U.S.C. § 1332. The parties agree that New Jersey law applies in this diversity action. The parties further assume, as will the Court, that New Jersey's entire controversy doctrine--and not the less stringent doctrines of claim and issue preclusion--govern this action. See Kozyra v. Allen, 973 F.2d 1110 (3d Cir. 1992); Melikian v. Corradetti, 791 F.2d 274 (3d Cir. 1986).
2. Prior out-of-state Proceedings
In Cogdell, the Supreme Court explicitly recognized that the contours of the entire controversy doctrine "are not fixed precisely by this decision. Its contents and bounds can evolve with experience . . . either through formal rulemaking or case-by-case adjudications." Cogdell, 116 N.J. 7 at 28.
Here, plaintiff's principal argument against the application of the entire controversy doctrine is that the doctrine can never apply where the first proceeding took place outside of New Jersey. There is some support for plaintiff's position, see Kimmins Abatement Corp. v. Conestoga-Rovers & Assoc., Inc., 253 N.J. Super. 162, 601 A.2d 256 (Law Div. 1991) ("Kimmins"), although other courts have rejected such a per se rule and have not hesitated to apply the doctrine where fairness so required. See Giudice v. Drew Chemical Corp., 210 N.J. Super. 32, 509 A.2d 200 (App. Div. 1986) ("Giudice"); Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 262 N.J. Super. 178, 620 A.2d 456 (Law Div. 1992), aff'd, 275 N.J. Super. 79, 645 A.2d 787 (App. Div. 1994), certif. granted, 138 N.J. 270 (1994) ("Mortgagelinq"); see also Research & Trading Corp. v. Safety Technology Systems, Inc., 1994 U.S. Dist. LEXIS 3919, 1994 WL 114553 (D.N.J. March 29, 1994) (JEI). Neither the New Jersey Supreme Court nor the Third Circuit has squarely addressed the issue.
This motion thus presents what the Cogdell Court referred to as one or the evolving applications of the entire controversy doctrine that must be decided on a case-by-case basis, the issue here being whether plaintiff's claims against Foremost are barred by plaintiff's failure to sue Foremost directly in the New York action. The Court's task on this motion is to predict how the New Jersey Supreme Court would decide this issue. McKenna v. Pacific Rail Service, 32 F.3d 820, 825 (3d Cir. 1994); Packard v. Provident Nat. Bank, 994 F.2d 1039, 1046-47 (3d Cir. 1993); Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 613-14 (3d Cir. 1992). In so doing, the Court is to give proper regard to the decisions of state intermediate appellate courts, which are presumptive evidence of state law, id. (citations omitted); see also United States v. Board of Educ. of Tp. of Piscataway, 798 F. Supp. 1093, 1095 (D.N.J. 1992) (citations omitted); and the Court is of course bound by any Third Circuit decisions regarding how the New Jersey Supreme Court would rule. Largoza v. General Elec. Co., 538 F. Supp. 1164, 1166 (E.D. Pa. 1982) (citations omitted). Before turning to the facts of this case, the Court will review the several authorities that are germane to this issue.
a. Relevant Caselaw
In Giudice, the plaintiff withheld from a New York action a wrongful discharge claim that was later filed in New Jersey against a defendant from the New York action. In dismissing the New Jersey action, the appellate division stated as follows:
Based upon our study of the record, we are completely satisfied that Giudice's election to hold back from the New York litigation the claim of wrongful discharge must bar him from thereafter raising it in a subsequent proceeding. The defamation and wrongful discharge actions are closely related and are constituent components of the entire controversy. Additionally, the fact that New York might not recognize Woolley and Pierce types of wrongful discharge causes of action does not preclude the requirement that the entire controversy be determined in a single action which saves time and expense. When Giudice filed the New York action he contemplated that before or after final judgment in New York, separate litigation would be filed in New Jersey "in order to conclusively dispose of their respective bundles of rights and liabilities which derive from a single transaction or related series of transactions;" consequently, "the omitted component must be regarded as constituting an element of the minimum mandatory unit of litigation." Therefore, we hold that Giudice who was in control of his litigation must suffer the preclusionary consequences of the entire controversy doctrine. That result must obtain notwithstanding the fact that the first litigation was instituted in New York rather than in New Jersey.