Board of Education, 903 F. Supp. 797, 800 (D.N.J. 1995).
In Wm. Blanchard Co. v. Beach Concrete Co., 150 N.J. Super. 277, 375 A.2d 675 (App. Div.), certif. den., 75 N.J. 528 (1977), the court stated succinctly: "The point, of course, is that a component of the 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 ball game." 150 N.J. Super. at 294. What defendants fail to realize is that the action at bar is an entirely different game.
The Wm. Blanchard case, and all other cases where the ECD is successfully invoked, involve "a single transaction or series of related transactions." Mystic Isle, 142 N.J. at 323. It is the "commonality of facts, rather than the commonality of issues, parties or remedies that defines the scope of the controversy and implicates the joinder requirements of the entire controversy doctrine." DiTrolio, 142 N.J. at 272.
Here, there is no showing that there is a commonality of facts, or a common nucleus of operative fact, between the Al Rieder loan and the three packages of loans at issue in this matter. Defendants maintain that the "core set of facts" in this case -- and its connection with the Al Rieder cases -- is Domenichetti's allegedly deficient legal advice. The Court declines to make such a leap.
What the defendants would have this Court do is conclude that the FDIC should have joined the defendants in one or both of the previous Al Rieder actions, then brought claims against all other defaulting debtors while joining any malpractice claims relating to those other loans with the malpractice claims regarding the Al Rieder loans. This extrapolation of the ECD is anathema.
Of course, were the FDIC to have included malpractice claims in this action which derived from advice in connection with the Al Rieder loan, such claims would indeed be barred by the ECD if the FDIC, at the time of the prior two actions, knew or should have known of an accrued claim. Although the FDIC asserts that it did not know of Domenichetti's alleged malpractice at the time of those two actions, that is not an issue here. The claims in this case arise from three different packages of loans by the bank. To now bar the FDIC from pursuing its claims against defendants would run counter to the notions of equity and "fair play" inherent in the ECD. The "polestar" of the application of the ECD is judicial fairness. DiTrolio, 142 N.J. at 272. Because the ECD is equitably rooted, "its application is left to judicial discretion based on the particular circumstances in a given case." Mystic Isle, 142 N.J. at 323. This Court declines to apply it here.
Based upon the foregoing, defendants' motion for summary judgment under the entire controversy doctrine is DENIED.
An appropriate Order accompanies this Letter Opinion.
NICHOLAS H. POLITAN
THIS MATTER having come before the Court on motion of defendant Jeffrey S. Mintz, Administrator c.t.a. for the Estate of Stephen J. Domenichetti, Robert J. Devlin, Raymond A. Hook, Domenichetti, Devlin & Hook, and Domenichetti & Hook (hereinafter "Defendants") for summary judgment under the ECD; and oral argument having been heard on October 24, 1996; and for good cause shown as set forth more fully in the accompanying Letter Opinion;
IT IS on this 17th day of December, 1996,
ORDERED that Defendants' motion for summary judgment be DENIED.
NICHOLAS H. POLITAN
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