than the mandatory joinder of claims, which has evolved more tentatively and evoked more criticism. Id.; Hulmes, 924 F. Supp. at 679. Here, the claims in the 1995 New Jersey Action are not entirely factually separable from the 1994 Nicaraguan Action to defeat application of the entire controversy doctrine. See Gelber v. The Zito Partnership, 147 N.J. 561, 688 A.2d 1044, 1997 WL 86112, at *1 (N.J. 1997)(remanding matter to Law Division to determine if any claims in subsequent litigation were entirely separable from claims related to contractor in earlier arbitration to survive entire controversy doctrine).
4. Lack of Determination on the Merits
Nubenco also contends the entire controversy is inapplicable because, at the time the motion was filed, the 1994 Nicaraguan Action did not contain a judgment that was "valid, final and on the merits." Nubenco Brief in Opposition, 10 (citing Watkins v. Resorts International Hotel & Casino, Inc., 124 N.J. 398, 412, 591 A.2d 592 (1991) and Federated Department Stores v. Moitie, 452 U.S. 394, 398, 69 L. Ed. 2d 103, 101 S. Ct. 2424 (1981)). Nubenco argues that, because its claims have not been addressed on the merits in the 1994 Nicaraguan Action, the 1995 New Jersey Action should not be dismissed. Nubenco Brief in Opposition, 11. The key consideration here, however, is whether the claims could have been addressed in another litigation. See Bernardsville Quarry v. Borough of Bernardsville, 929 F.2d 927, 930 (3d Cir.), cert. denied, 502 U.S. 861, 116 L. Ed. 2d 144, 112 S. Ct. 182 (1991).
Both Watkins and Moitie, cited by Nubenco, discuss the doctrine of claim preclusion, which directs that a "final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Moitie, 452 U.S. at 398. The entire controversy doctrine, however, reaches far more broadly and encompasses "all aspects of a controversy that might have been litigated and determined." Kelly, 927 F. Supp. at 802 n.4 (citing Mori v. Hartz Mountain Development Corp., 193 N.J. Super. 47, 55-56, 472 A.2d 150 (App.Div. 1983)), see also Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 262 N.J. Super. 178, 182, 620 A.2d 456 (Law Div. 1992), aff'd, 275 N.J. Super. 79, 645 A.2d 787 (1994), affirmed in part and reversed in part, 142 N.J. 336, 662 A.2d 536 (1995)(noting that the Watkins decision affirmed the principle that the entire controversy doctrine was broader than Federal law of claim preclusion).
Because the entire controversy doctrine is based upon fairness and efficiency, it follows that, "the entire controversy doctrine may preclude an action that is not otherwise precluded by the Federal law of [claim preclusion]." Watkins, 124 N.J. at 412 (citing Blazer Corp. v. New Jersey Sports and Exposition Auth., 199 N.J. Super. 107, 488 A.2d 1025 (1985)(barring subsequent action where claims were judicially cognizable but not brought in prior proceeding)). Cf. Mortgagelinq Corp., 262 N.J. Super. 178 at 183, 620 A.2d 456 (employing entire controversy doctrine to dismiss the New Jersey action despite lack of previous final judgment against them, or any of the other defendants and while Pennsylvania litigation was still awaiting trial); DiTrolio, 142 N.J. at 253 (employing entire controversy doctrine despite fact that prior litigation was dismissed without prejudice).
The instant matter is distinguishable from the decision in Jones v. Holvey, 29 F.3d 828 (3d Cir. 1994), cert. denied, U.S. , 134 L. Ed. 2d 480, 116 S. Ct. 1329 (1996). In Jones, the Circuit held:
Under the entire controversy doctrine, a party will not be barred from raising claims that he could not have brought in the initial action. As the New Jersey Supreme Court has stated, if the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should not be held precluded.