United States District Court, D. New Jersey
T. SHULICK 1500 JFK BLVD. SUITE 1030 PHILADELPHIA, PA On
behalf of plaintiffs
BONGIOVANNI, LEARY BRIDE TINKER & MORAN, On behalf of
defendants as to Count II of Amended Complaint
H. WARD, JOHN H. SHINDLE, WARD LAW FIRM On behalf of
defendants on all other counts
L. HILLMAN, U.S.D.J.
John and Geraldine Tedeschi, filed a complaint against
defendants, D.N. DeSimone Construction, Inc., Dennis
DeSimone, Albert DeSimone, and Anthony DeSimone, relating to
the reconstruction of their home in Longport, New Jersey
damaged during Superstorm Sandy in October 2012.
Plaintiffs' complaint alleges that they withheld payment
to defendants because of, inter alia, poor
craftsmanship and false representations, and as a result,
defendants (1) filed a lien against plaintiffs in the amount
of $144, 733.36, and (2) instituted an arbitration proceeding
against plaintiffs. The arbitration was resolved in
defendants' favor, and required that the plaintiffs pay
defendants for the work defendants had completed.
plaintiffs' claims in their complaint requests that the
Court vacate the arbitration proceeding because the
parties' contract did not contain a valid arbitration
provision. Plaintiffs also claim that defendants' prior
counsel falsely commenced a New Jersey Construction Statutory
Lien Arbitration proceeding despite the existence of an
executed lien waiver.
Court's previous Opinion denying defendants' motion
to dismiss plaintiffs' complaint in favor of arbitration,
the Court found (1) it was unclear from the face of
plaintiffs' complaint that they contractually agreed to
have their claims against defendants resolved through
arbitration, and (2) in response to defendants' motion,
plaintiffs provided additional facts sufficient to
demonstrate that the agreement to arbitrate is in dispute.
The Court directed the parties to undertake expedited
discovery limited to the issue of the arbitrability of
plaintiffs' claims against defendants. (Docket No. 53.)
accordance with the Court's order, the parties deposed
both plaintiffs and defendant Dennis DeSimone. Defendants
have now moved, under the standard for summary judgment, to
dismiss plaintiffs' complaint in favor of arbitration.
See Guidotti v. Legal Helpers Debt Resolution,
L.L.C., 716 F.3d 764, 771, 776 (3d Cir. 2013)
(“[I]f the complaint and its supporting documents are
unclear regarding the agreement to arbitrate, or if the
plaintiff has responded to a motion to compel arbitration
with additional facts sufficient to place the agreement to
arbitrate in issue, then ‘the parties should be
entitled to discovery on the question of arbitrability before
a court entertains further briefing on [the] question.'
After limited discovery, the court may entertain a renewed
motion to compel arbitration, this time judging the motion
under a summary judgment standard.”). Plaintiffs have
opposed defendants' motion.
Court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 1332 because there is complete diversity of
citizenship between the parties and the amount in controversy
exceeds $75, 000. The citizenship of the parties is as
follows: Plaintiffs John and Geraldine Tedeschi are citizens
of the state of Florida; Defendant D.N. DeSimone
Construction, Inc. is a corporation of the state of New
Jersey with its principal place of business at 711 A-Mantua
Pike, Woodbury, New Jersey; individual defendants Dennis
DeSimone, Albert DeSimone, Anthony DeSimone are all adult
individuals, corporate officers of D.N. DeSimone
Construction, Inc., who are citizens of the state of New
Summary Judgment Standard
judgment is appropriate where the Court is satisfied that the
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, admissions, or interrogatory
answers, demonstrate 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. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986); Fed.R.Civ.P. 56(a).
issue is “genuine” if it is supported by evidence
such that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id. In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be
believed and all justifiable inferences are to be drawn in
his favor.” Marino v. Industrial Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson,
477 U.S. at 255).
the moving party has the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
has met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is
a genuine issue for trial. Id. Thus, to withstand a
properly supported motion for summary judgment, the nonmoving
party must identify specific facts and affirmative evidence
that contradict those offered by the moving party.
Anderson, 477 U.S. at 256-57. A party opposing
summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
31, 2013, defendants mailed to plaintiffs two originals of
the “Standard Form of Agreement Between Owner and
Contractor” created by the American Institute of
Architects (AIA), AIA Form A101-2007. (Docket No. 57-2 at
2-23.) The first page of the Standard Form states that the
A201-2007 “General Conditions of the Contract for
Construction” is adopted in the Standard Form by
reference. (Id. at 2.) The first page of the
Standard Form also provides, “This document has
important legal consequences. Consultation with an attorney
is encouraged with respect to its completion or
modification.” (Id.) Defendants asked
plaintiffs to review the documents, and if they met with
plaintiffs' approval, sign and return one copy to
defendants. (Id. at 23.) Plaintiffs signed the
contract on August 8, 2013. (Id. at 14.)
argue that they did not know they waived their right to a
jury trial for disputes arising from their contract with
defendants because they did not discuss alternative dispute
resolution options with defendants prior to signing the
contract. Plaintiffs also argue the arbitration provision was
hidden in the General Conditions Form incorporated by
reference into the Standard Form contract, and the General
Conditions Form was not provided to plaintiffs. Plaintiffs
further argue that the contract itself indicated that no
other documents or provisions were included, which led
plaintiffs to believe that they were in possession of all of
the contract documents, which did not include an arbitration
counter that the arbitration provision is not buried in the
General Conditions Form, but is clearly stated in the
Standard Form. Defendants further argue that plaintiffs'
admission that they did not read the entire contract renders
meaningless their argument regarding what they were and were
not provided with. Moreover, defendants argue that a