merely sets forth the factual and procedural history relevant to
the three motions described above.
Electric Mobility purchased Bourns potentiometers for its
motorized wheelchairs and scooters through Hall-Mark Electronics,
Inc. See Br. in Supp. of Pl.'s Mot. for Certif. ("Pl.'s Certif.
Br.") at 1. Subsequently, both Bourns and Electric Mobility
discovered problems with the potentiometers. See id. Unable to
resolve its differences with Bourns and the distributor,
Hall-Mark Electronics, Inc., Electric Mobility sought legal
redress in this Court. See Complaint (filed July 20, 1990).
In its First Amended Complaint, filed September 17, 1990,
Electric Mobility alleged that, in supplying sub-standard
potentiometers, the Defendants: (1) breached express and implied
warranties of merchantability and fitness for a particular
purpose (Count I); (2) violated the New Jersey Consumer Fraud
Act, N.J.S.A. 56:8-2 (Count II); and (3) supplied and
manufactured latently defective potentiometers (Count III). See
First Amended Complaint at 2-7 (filed September 17, 1990). On
January 8, 1992, my colleague, the Hon. William G. Bassler, to
whom this case was then assigned, filed an unpublished Opinion
and Order granting, among other things, the Defendants' motion
for summary judgment on Count II of the First Amended Complaint,
finding the New Jersey Consumer Fraud Act inapplicable to the
facts of this case. See Electric Mobility Corp. v. Bourns
Sensors/Controls, Inc., et al., No. 90-2844 at 24 (D.N.J. filed
Jan. 9, 1992).
Subsequently, on April 13, 1992, Judge Bassler administratively
terminated the case, based upon the desire of both parties to
stay the litigation and "to engage in a private alternative
dispute resolution process. . . ." See Order for Administrative
Termination at 1 (filed April 13, 1992); see also Aff. of
Thomas G. Carruthers on Electric Mobility's Prejudgment Interest
Claim ("Carruthers Prejudgment Interest Aff."), Ex. A. More than
five years later, on April 29, 1997, Electric Mobility moved to
vacate Judge Bassler's Order and to reopen the case for further
proceedings. See Notice of Motion (filed April 29, 1997); see
also Carruthers Prejudgment Interest Aff., Ex. B. I granted
Electric Mobility's motion on June 6, 1997. See Order Reopening
Case for Further Proceedings at 4 (filed June 6, 1997); see
also Carruthers Prejudgment Interest Aff., Ex. C, at 1-4.
On September 21, 1998, Electric Mobility moved for leave to
file a Second Amended Complaint in order to add Dignified
Products Corporation ("DPC") as a plaintiff in this case. On
October 30, 1998, I heard oral argument and in a bench opinion
denied Electric Mobility's motion as futile because it did not
relate back to the filing of Electric Mobility's First Amended
Complaint. See Tr. of Oct. 30, 1998 Proceedings (filed Nov. 18,
1998); Order (filed Oct. 30, 1998). Subsequently, I denied a
motion for reargument of my Order denying Electric Mobility's
motion for leave to file a Second Amended Complaint. See
Electric Mobility Corp. v. Bourns Sensors/Controls, Inc., et
al., No. 90-2844 at 2-7 (filed Nov. 20, 1998).
More than eight months later, Electric Mobility moved before
this Court for certification to the United States Court of
Appeals for the Third Circuit of this Court's Order of October
20, 1998, denying Electric Mobility's motion for leave to file a
Second Amended Complaint, and Judge Bassler's January 8, 1992
Order granting the Defendants' summary judgment motion on
Electric Mobility's New Jersey Consumer Fraud Act claim set forth
in the First Amended Complaint. See Notice of Motion (filed
July 1, 1999).
Later that month, on July 30, 1999, the Defendants filed two
motions for partial summary judgment, arguing that, as a matter
of law, they are neither liable for the portion of Electric
Mobility's requested prejudgment interest covering the five-year
period from April 13, 1992 to June 6, 1997, when this case was
administratively stayed, nor for Electric Mobility's
out-of-pocket expenses incurred before January
20, 1989 and after May 1, 1990. See Notices of Motion (filed
July 30, 1999).
II. ELECTRIC MOBILITY'S MOTION FOR CERTIFICATION
The granting of certification or orders for interlocutory
appeal is governed by 28 U.S.C. § 1292(b) which provides:
When a district judge, in making in a civil action an
order not otherwise appealable under this section,
shall be of the opinion that such order involves a
controlling question of law as to which there is
substantial ground for difference of opinion and that
an immediate appeal from the order may materially
advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court
of Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion,
permit an appeal to be taken from such order, if
application is made to it within ten days after the
entry of the order: Provided, however, That
application for an appeal hereunder shall not stay
proceedings in the district court unless the district
judge or the Court of Appeals or a judge thereof
shall so order.
28 U.S.C. § 1292(b)(1993) (emphasis in original).
Accordingly, the Court may certify an order for interlocutory
appeal where the District Court finds that: (1) the order
involves a controlling question of law; (2) there is substantial
ground for difference of opinion as to that controlling question
of law; and (3) an immediate appeal from the order may materially
advance the ultimate termination of the litigation. See id.; see
also Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.
1974). The granting or denial of certification of an order for
interlocutory appeal lies largely in the discretion of the
District Judge. See Ferraro v. Secretary of the United States
Dep't of Health and Human Serv., 780 F. Supp. 978, 979 (S.D.N Y
1992); see also 16 Charles Alan Wright, Arthur R. Miller,
Edward H. Cooper, Federal Practice and Procedure, § 3929, at 371
(1996) n. 27 (citing S. Rep. 2434, 85th Cong., 2d Sess., 1958, in
1958 U.S.C.C.A.N. 5255, 5257 ("[T]he appeal is discretionary
rather than a matter of right. It is discretionary in the first
instance with the district judge.")). It is well-settled that
certification is inappropriate where the movant merely disagrees
with an adverse ruling of the District Court. See Kapossy v.
McGraw-Hill, Inc., 942 F. Supp. 996, 1001 (D.N.J. 1996)
(Orlofsky, J.) (citing Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280,
282 (E.D.Pa. 1983); United States v. Grand Trunk Western
R.R., 95 F.R.D. 463, 471 (W.D.Mich. 1981)).
In support of its motion for certification, Electric Mobility
argues that Judge Bassler's Order of January 8, 1992 and my Order
of October 30, 1998 meet the three statutory criteria set forth
in 28 U.S.C. § 1292(b). See Pl.'s Certif. Br. at 1-14. The
Defendants disagree, arguing that in each instance, there is no
difference of opinion on the controlling questions of law and
immediate appeal will not materially advance the ultimate
termination of the litigation. See Mem. of Law of Defs. In Opp.
to Pl.'s Mot. for Certif. ("Defs.' Certif. Mem.") at 3-11. For
the reasons set forth below, I shall deny the motion for
certification with respect to both Orders.
On October 30, 1998, in a bench opinion, following oral
argument on the merits of Electric Mobility's motion for leave to
file a second amended complaint, I relied upon Nelson v. County
of Allegheny, 60 F.3d 1010 (3d Cir. 1995), to find that the lost
profits claim of DPC, the proposed additional plaintiff, did not
relate back to the First Amended Complaint and, therefore, was
barred by the applicable statute of limitations. See Tr. at
41-43 (Oct. 30, 1998). Moreover, based upon the clear language of
Nelson, I rejected Electric Mobility's argument that DPC was
the real party in interest under Federal Rule of Civil Procedure
17(a). See id. at 43-44. Accordingly, I denied Electric
Mobility's motion for leave to file an amended complaint to add
DPC as a plaintiff because
the amendment would have been futile. See id. at 39, 44.
In its motion for certification of the question of whether
DPC's lost profits claim relates back to the First Amended
Complaint, Electric Mobility contends that a substantial
difference of opinion exists within this Circuit as to the
controlling rule of law on the "relation back" doctrine. See
Pl.'s Certif. Br. at 7. Specifically, Electric Mobility argues
that Fashion Novelty Corp. of New Jersey v. Cocker Machine and
Foundry Co., 331 F. Supp. 960 (D.N.J. 1971), and not the test
articulated by the Third Circuit in Nelson v. County of
Allegheny, 60 F.3d 1010 (3d Cir. 1995), is controlling because
Electric Mobility merely seeks to substitute a real party in
interest under Federal Rule of Civil Procedure 17(a). See id.
Although it is clear that my October 30, 1998 Order involves a
controlling question of law, see Katz, 496 F.2d at 755 (stating
that a controlling question of law is one that "if erroneous,
would be reversible error on final appeal"), Electric Mobility
has not demonstrated that there is substantial ground for a
difference of opinion.
In the hearing on the motion for leave to amend, I acknowledged
and rejected Electric Mobility's argument that it merely sought
to substitute a real party in interest and could do so despite
the running of the statute of limitations. See Tr. at 43-44. In
its reliance upon Fashion Novelty Corp., 331 F. Supp. at 960, a
twenty-eight-year-old case that held that an amended complaint
"related back" when there was virtual identity between the
original and new plaintiffs and an absence of prejudice to the
defendant, I conclude that Electric Mobility simply disagrees
with my earlier ruling. There is no substantial difference of
opinion about the applicable test in this instance; unlike the
District Court in Fashion Novelty Corp., 331 F. Supp. at 960,
the Third Circuit expressly addressed, albeit in a footnote, the
interplay between the relation back doctrine set forth in Federal
Rule of Civil Procedure 15(c) and the real party in interest
doctrine of Federal Rule of Civil Procedure 17(a). See Nelson,
60 F.3d at 1015 n. 8. In light of the thorough analysis set forth
in Nelson, I find the cursory analysis of the District Court's
opinion in Fashion Novelty Corp. unpersuasive. Accordingly, I
shall deny with prejudice Electric Mobility's motion for
certification of this Court's October 30, 1998 Order.
In an unpublished Opinion and Order dated January 8, 1992,
Judge Bassler granted the Defendants' motion for partial summary
judgment on, among other things, Electric Mobility's claim under
the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2 ("the Act").
See Electric Mobility Corp. v. Bourns Sensors/Controls, Inc., et
al., No. 90-2844, at 21-24 (D.N.J. filed Jan. 9, 1992). In so
doing, Judge Bassler reasoned that the Act did not apply to
experienced commercial entities of relatively equal bargaining
power that engage in carefully negotiated contracts. See id.
At the time of Judge Bassler's Opinion and Order, the question
of whether New Jersey courts would recognize a claim under the
Act brought by one commercial entity against another had been
labeled a "morass." See Vanguard Telecommunications, Inc. v.
Southern New England Telephone Co., 900 F.2d 645 (3d Cir. 1990).
In finding the Act "inapplicable to the situation here," Judge
Bassler relied on Werner & Pfleiderer Corp. v. Gary Chemical
Corp., 697 F. Supp. 808, 814-15 (D.N.J. 1988) (Wolin, J.),
Unifoil Corp. v. Cheque Printers and Encoders, Ltd.,
622 F. Supp. 268, 270 (D.N.J. 1985) (Stern, J.), and BOC Group, Inc.
v. Lummus Crest, Inc., 251 N.J. Super. 271, 597 A.2d 1109 (Law
Div. 1990). Subsequent New Jersey case law, however, has
effectively eroded the reasoning of these cases. See e.g.,
Coastal Group, Inc. v. Dryvit Systems, Inc., 274 N.J. Super. 171,
179-180, 643 A.2d 649 (App. Div. 1994) (finding the Act applicable
to commercial entities and stating that "both Unifoil and
Werner & Pfleiderer were based on an overly expansive reading
of Spring Motors[Distributors Inc. v.
Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1983)], which is
inconsistent with [state statutory provisions] as well as with
state decisional law"); see also Naporano Iron & Metal Co. v.
American Crane Corp., 79 F. Supp.2d 494 (D.N.J. 1999) (Greenaway,
J.) (corporate purchaser of crane stated claim against
manufacturer under the Consumer Fraud Act); Florian Greenhouse,
Inc. v. Cardinal IG Corp., 11 F. Supp.2d 521 (D.N.J. 1998) (Walls,
J.) (recognizing the availability of a cause of action by
manufacturer against supplier under Consumer Fraud Act); Alloway
v. General Marine Indus., 149 N.J. 620, 640, 695 A.2d 264
(1997) (citing Coastal Group favorably in dicta for the
proposition that a commercial party could bring a Consumer Fraud
Act claim). In short, courts have held that "it is the character
of the transaction rather than the identity of the purchaser
which determines if the Consumer Fraud Act is applicable." See J
& R Ice Cream Corp. v. California Smoothie Licensing Corp.,
31 F.3d 1259, 1273-74 (3d Cir. 1994) (citing Daaleman v.
Elizabethtown Gas Co., 77 N.J. 267, 390 A.2d 566
(1978) (concurring opinion)); see also Naporano Iron & Metal Co.
v. American Crane Corp., 79 F. Supp.2d 494, 508 (D.N.J.
1999) (Greenaway, J.); Lithuanian Commerce Corp. v. Sara Lee
Hosiery, 179 F.R.D. 450, 469 (D.N.J. 1998) (Orlofsky, J.);
accord Marascio v. Campanella, 298 N.J. Super. 491, 498,
689 A.2d 852 (App. Div. 1997) ("Those who purchase these services,
whether commercial entities or individual citizens, are
`consumers' in the ordinary as well as statutory meaning of that
In support of its motion for certification, Electric Mobility
contends that Coastal Group and the decisions in Perth Amboy
Iron Works, Inc. v. American Home Assurance Co., 226 N.J. Super. 200,
543 A.2d 1020 (App. Div. 1988) and Hundred East Credit Corp.
v. Eric Schuster Corp., 212 N.J. Super. 350, 515 A.2d 246
(App. Div. 1986), two state court decisions distinguished by Judge
Bassler, are evidence that there is a "substantial ground for
difference of opinion" on the issue of whether the Act covers a
claim brought by one commercial entity against another. See
Pl.'s Certif. Br. at 4-6. In opposition to the motion for
certification, the Defendants argue that Judge Bassler's 1992
Order is limited to the facts of the case but fail to address the
subsequent case law on the issue. See Defs.' Certif. Mem. at
This Court has been unable to discover any judicial authority
supporting Electric Mobility's implicit contention that cases
decided after the decision at issue may be considered in
determining the existence of a "difference of opinion" under
28 U.S.C. § 1292(b). I need not address that issue, however, since I
conclude that certification is the inappropriate mechanism for
the relief sought by Electric Mobility. For the reasons set forth
below, I conclude that certification is improper where other
mechanisms for District Court review of an earlier decision are
available. For that reason, I shall dismiss Electric Mobility's
motion for certification of Judge Bassler's January 8, 1992 Order
without prejudice. Instead, I shall consider the applicability of
Federal Rule of Civil Procedure 54(b) to these circumstances.
Federal Rule of Civil Procedure 54(b) provides that:
When more than one claim for relief is presented in
an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple
parties are involved, the court may direct the entry
of final judgment as to one or more but fewer than
all of the claims or parties only upon an express
determination that there is no just reason for delay
and upon an express direction for the entry of
judgment. In the absence of such determination and
direction, any order or other form of decision,
however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer
than all the parties shall not terminate the action
as to any of the claims or parties, and the order or
other form of decision is subject to revision at any
time before the entry of judgment adjudicating all
and the rights and liabilities of all the parties.
Fed.R.Civ.P. 54(b) (emphasis added); see also Waste Conversion,
Inc. v. Sims, 868 F. Supp. 643, 649 (D.N.J. 1994) (Irenas,
J.) (finding jurisdiction, pursuant to Rule 54(b), to reconsider a
In this case, the partial summary judgment issued by Judge
Bassler is an interlocutory order subject to Rule 54(b). See
Gallant v. Telebrands Corp., 35 F. Supp.2d 378, 394 (D.N.J.
1998) (Lechner, J.). Consequently, Judge Bassler's 1992 Order is
subject to revision at any time before the entry of final
judgment on all of the claims in this case. See Fed.R.Civ.P.
54(b). Reconsideration may be justified on the basis of an
intervening change in law, see Grozdanich v. Leisure Hills
Health Center, 48 F. Supp.2d 885, 888 (D.Minn. 1999); Richman v.
W.L. Gore & Assoc., Inc., 988 F. Supp. 753, 755 (S.D.N.Y. 1997);
Washington v. Garcia, 977 F. Supp. 1067, 1069 (S.D.Cal. 1997);
McCoy v. Macon Water Auth., 966 F. Supp. 1209, 1222 (M.D.Ga.
1997), and is not necessarily barred in this District by Local
Civil Rule 7.1(g), requiring motions for reconsideration to be
filed within ten days of an order, see L. Civ. R. 1.1(a),*fn1
Accordingly, this Court shall order the parties to brief,
within twenty days of receipt of this Opinion, the question of
whether this Court should reconsider the Consumer Fraud Act issue
in Judge Bassler's January 8, 1992 Order as well as the propriety
of vacating the order of partial summary judgment. The Court will
list this issue for disposition on its motion calendar on May 5,
2000. Unless counsel are advised to appear for oral argument by
the Court, the issue shall be decided on the papers.
III. THE DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT
A. Legal Standard Governing Summary Judgment
"On a motion for summary judgment, the court must determine
whether the evidence shows that `there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.'" Abraham v. Raso, 183 F.3d 279,
287 (3d Cir. 1999) (citing Fed.R.Civ.P. 56(c)). "Any factual
dispute invoked by the nonmoving party to resist summary judgment
must be both material in the sense of bearing on an essential
element of the plaintiff's claim and genuine in the sense that a
reasonable jury could find in favor of the nonmoving party."
Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "In opposing
summary judgment, a party `must do more than simply show that
there is some metaphysical doubt as to material facts,'
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), but a court
should not prevent a case from reaching a jury simply because the
court favors one of several reasonable views of the evidence."
Abraham, 183 F.3d at 287. "[T]he 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, 477 U.S. at 249, 106 S.Ct. 2505; see also
Abraham, 183 F.3d at 287. "Thus, while the nonmoving party must
present enough evidence to demonstrate a dispute is genuine, all
inferences in interpreting the evidence presented by the parties
should be drawn in favor of the nonmoving party." Abraham, 183
F.3d at 287 (citing Boyle v. County of Allegheny Pa.,
139 F.3d 386, 393 (3d Cir. 1998)). "Cases that turn crucially on the
witnesses' testimony in particular should not be resolved on
summary judgment." Id.
If the nonmoving party fails to oppose the motion by written
objection, memorandum, affidavits and other evidence, the Court
"will accept as true all material facts set forth by the moving
party with appropriate record support." Anchorage Assocs. v.
Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990)
(quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)).
Even where the non-moving party has failed to establish a triable
issue of fact, summary judgment will not be granted unless
"appropriate." Fed. R.Civ.P. 56(e); see Anchorage Assocs., 922
F.2d at 175. Rule 56(e) of the Federal Rules of Civil Procedure
requires that the case be evaluated on its merits, with summary
judgment being granted for the movants only if they are entitled
to a judgment as a matter of law. See Anchorage Assocs., 922
F.2d at 175.
B. The Defendants' Partial Summary Judgment Motion on Electric
Mobility's Claim for Prejudgment Interest
Electric Mobility submits that, if successful, it is entitled
to $209,811 in prejudgment interest. See Carruthers Prejudgment
Interest Aff., Ex. D ("Electric Mobility Corporation v. Bourns
Sensors/Controls, Inc. Report on Damages") at 2, Ex. 1. In
calculating this sum, Electric Mobility included the interest
accrued between April 13, 1992 and June 6, 1997, the five-year
period in which this case was administratively stayed. See id;
see also Pl.'s Statement of Uncontested Facts at ¶ 7. The
Defendants move, pursuant to Federal Rule of Civil Procedure
56(c), for partial summary judgment, arguing that Electric
Mobility is not entitled to recover prejudgment interest for the
period of administrative termination. See Mem. of Law of Bourns
Sensors/Controls and Hall-Mark Electronics in Supp. of their Mot.
for Partial Summ. J. With Respect to EMC's Claim for Prejudgment
Interest ("Defs.' Prejudgment Interest Mem.") at 4. In opposition
to the motion, Electric Mobility argues that the Defendants'
motion is premature and, in the alternative, that there is no
basis for summary judgment under New Jersey law. See Pl.'s Mem.
of Law in Supp. of Its Resp. to Defs.' Mot. for Partial Summ. J.
With Respect to EMC's Claim for Prejudgment Interest ("Pl.'s
Prejudgment Interest Mem.") at 4-7.
Under New Jersey law, prejudgment interest may be awarded on
contract claims in the discretion of the court and in accordance
with equitable principles. Meshinsky v. Nichols Yacht Sales,
Inc., 110 N.J. 464, 478, 541 A.2d 1063 (1988); Sulcov v. 2100
Linwood Owners, Inc., 303 N.J. Super. 13, 38, 696 A.2d 31
(App. Div.), certif. granted, 152 N.J. 10, 702 A.2d 349 (1997);
Derfuss v. New Jersey Mfrs. Ins. Co., 285 N.J. Super. 125, 135,
666 A.2d 599 (App. Div. 1995). "The `equitable purpose of
prejudgment interest is to compensate a party for lost earnings
on a sum of money to which it was entitled, but which has been
retained by another.'" North Bergen Rex Transport, Inc. v.
Trailer Leasing Co., A Division of Keller Sys., Inc., 158 N.J. 561,
574-75, 730 A.2d 843 (1999) (quoting Sulcov, 303 N.J.Super.
at 39, 696 A.2d 31); see also Sylvia B. Pressler, Rules
Governing The Courts of the State of New Jersey, R. 4:42-11, cmt.
8 ("[P]rejudgment interest is not a penalty but rather its
allowance simply recognizes that until the judgment is entered
and paid, the defendant has had the use of money rightfully the
Under New Jersey Court Rule 4:42-11(b), a court may suspend
prejudgment interest in a tort action for a period of time in
"exceptional cases." See N.J. Ct. R. 4:42-11(b)(1999).*fn3
Recently, the Supreme
Court of New Jersey explicitly extended the exceptional
circumstance rule to contract cases. See North Bergen Rex
Transport, Inc., 158 N.J. at 575, 730 A.2d 843. Therefore, if a
court deems prejudgment interest appropriate in a contract case,
the court may suspend the running of the interest for a period of
time in exceptional cases.
In Espin v. Allergan Pharmaceutical, Inc.,
127 N.J. Super. 496, 317 A.2d 779 (Law Div. 1973), the Superior Court of New
Jersey, Law Division, suspended the running of prejudgment
interest where the court had placed the case on the "inactive
list" because of the plaintiff's inability or unwillingness to
proceed. See id. at 497-98, 317 A.2d 779. Subsequent cases,
however, have rejected the idea that an "`exceptional case' must
be equated with fault on the part of a plaintiff," Dall'Ava v.
H.W. Porter Co., 199 N.J. Super. 127, 131, 488 A.2d 1036
(App. Div. 1985), and have stated in dicta that the defendant's
role in the delay is a factor to be considered, see Coffman v.
Keene Corp., 257 N.J. Super. 279, 295, 608 A.2d 416 (App. Div. 199
2) (describing Dall'Ava decision as based in part on the fact
that "the defendant . . . had no part in delaying the
litigation"). That being said, New Jersey courts have found
exceptional circumstances where delays in the litigation have
resulted not from the conduct of either party but because of a
judicial delay, see North Bergen Rex Transport, Inc., 158 N.J.
at 575, 730 A.2d 843 (finding that the thirteen-month period
between the end of trial and the date the trial court rendered
its decision was an "exceptional circumstance"), a court-ordered
stay, see Dall'Ava, 199 N.J.Super. at 131, 488 A.2d 1036
(ordering a judicial stay because of bankruptcy proceedings
involving co-defendant), and the fact that defendant was
"judgment proof," see Heim v. Wolpaw, 271 N.J. Super. 538,
542-43, 638 A.2d 1373 (App. Div. 1994).
Contrary to the arguments set forth in the Defendants' brief, I
find neither Leonen v. Johns-Manvillle Corp., et al., CIV. No.
82-2684, 1988 WL 98528 (D.N.J. Sept.12, 1988) nor Wilton v.
Cycle Trucking, Inc., 240 N.J. Super. 326, 573 A.2d 462 (App. Div. 198
9) controlling or persuasive. First, in Leonen, an
unpublished decision, the District Court precluded prejudgment
interest for the months that the proceedings were stayed by the
United States Court of Appeals for the Third Circuit. See 1988
WL 98528 at *2. Two months later, on a motion for
reconsideration, the Court vacated its prejudgment interest
decision based on the new evidence that the case had not in fact
been stayed. See Leonen v. Johns-Manville Corp., CIV. No.
82-2684, 1988 WL 125853, at *5-6 (D.N.J. Nov. 23, 1988). Second,
in Wilton, 240 N.J.Super. at 326, 573 A.2d 462, the Superior
Court of New Jersey, Appellate Division, suspended prejudgment
interest pursuant to a New Jersey statute inapplicable to this
case. See id. at 329, 573 A.2d 462.
New Jersey state courts have not found exceptional
circumstances where the defendant's industry was financially
troubled, see Coffman, 257 N.J.Super. at 295, 608 A.2d 416, the
plaintiff had a reasonable basis for the various adjournments,
see Green v. General Motors Corp., 310 N.J. Super. 507, 535,
709 A.2d 205 (App. Div. 1998), and where the delay between the return
of the jury's verdict and the entry of final judgment was due to
case-specific complexities, see Adamson v. Chiovaro,
308 N.J. Super. 70, 82, 705 A.2d 402 (App. Div. 1998).
In this case, the parties "jointly reported that they wish[ed]
to engage in a private alternative dispute resolution process,
and that they wish[ed] for this litigation to be stayed." See
Order for Administrative Termination at 1 (filed April 13, 1992);
see also Carruthers Prejudgment Interest Aff., Ex. A. The
parties agree that mediation
never took place. See Defs.' Prejudgment Interest Mem. at 3;
Pl.'s Prejudgment Interest Mem. at 2. In granting the motion to
reopen this case, I made no specific findings as to the
Defendants' conduct regarding the failure to mediate, and only
held that the Defendants did not demonstrate the factors
necessary to dismiss the case for a failure to prosecute. See
Order Reopening Case for Further Proceedings at 3 (filed June 6,
1997) (quoting Poulis v. State Farm Fire and Cas. Co.,
747 F.2d 863, 868 (3d Cir. 1984)).*fn4
Considering the sparseness of the record before me and the
equitable underpinnings of the "exceptional circumstance"
doctrine, I find that I am unable to make a reasoned decision
concerning the suspension of prejudgment interest. In addition,
considering the procedural posture of this case, I find that the
instant motion is premature. See e.g., Cooper Distributing Co.,
Inc. v. Amana Refrigeration, Inc., 180 F.3d 542, 553 (3d Cir.
1999) (finding that appeal of District Court's denial of
prejudgment interest was premature where new trial was ordered
and therefore new finding on issue of prejudgment interest).*fn5
Accordingly, I shall deny the Defendants' motion for summary
judgment without prejudice. Should the issue of prejudgment
interest become an issue after the trial in this case, I shall
hold an evidentiary hearing to determine whether this case
qualifies as "exceptional" under New Jersey law.
C. The Defendants' Partial Summary Judgment Motion on Electric
Mobility's Out-of-Pocket Expense Claim
The Defendants contend that there are no genuine issues of
material fact and that they are entitled to judgment as a matter
of law on all of Electric Mobility's out-of-pocket expenses
incurred before January 20, 1989 and after May 1, 1990. See
Mem. of Law of Bourns Senstors/Controls and Hall-Mark Electronics
in Supp. of Their Mot. for Partial Summ. J. with respect to EMC's
Out-of-Pocket Expense Claim ("Defs.' Expense Mem.") at 5-10. In
opposition to the motion, Electric Mobility argues that genuine
issues of material fact preclude partial summary judgment on both
claims. See Pl.'s Mem. of Law in Supp. of its Response to
Defs.' Mot. for Partial Summ. J. with respect to EMC's Claim for
Out-of-Pocket Expenses ("Pl.'s Expense Mem.") at 5-9. For the
reasons set forth below, I shall grant the Defendants' motion for
partial summary judgment on Electric Mobility's out-of-pocket
expenses incurred before January 20, 1989, but deny the
Defendants' motion for partial summary judgment on the
out-of-pocket expense claim for expenses incurred after May 1,