United States District Court, D. New Jersey
Terance J. Bennett, Esq. Counsel for Plaintiff
Morgan, Lewis & Bockius LLP, Michael J. Puma, Esq. (pro
hac vice) Courtney Wirth Griffin, Esq. Counsel for Defendants
L. HILLMAN, U.S.D.J.
before the Court is Defendants' Motion for
Reconsideration of the Court's April 10, 2017 Order
granting in part and denying in part Defendants' Motion
to Dismiss the Amended Complaint.
reasons set forth below, the Motion for Reconsideration will
be granted in part and denied as moot in part.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
April 10, 2017, the Court partially granted and partially
denied Defendants' Motion to Dismiss the Amended
Complaint, dismissing all of the tort counts of the Amended
Complaint, with prejudice, as barred by the economic loss
doctrine. Dando v. Bimbo Food Bakeries Distribution,
LLC., , 2017 U.S. Dist. LEXIS 54327 at *5 (D.N.J. April
10, 2017). Accordingly, the following claims remain at this
time: breach of the covenant of good faith and fair dealing
(Count I), unjust enrichment (Count III), and breach of
contract (Count V). That portion of the Court's decision
is not implicated by the instant motion. Defendants seek
reconsideration of the Court's ruling as to damages,
asserting that the Court did not completely address their
arguments concerning certain types of damages.
The relevant portion of the previous opinion states, The
Amended Complaint demands ‘compensatory damages . . .,
consequential damages, punitive damages, and exemplary
damages of treble the amount of actual damages.' (Amend.
Compl. ¶¶ 31, 41, 54, and 62) Defendants move to
strike all but the demand for compensatory damages arguing
that the Distribution Agreement precludes such damages.
The Distribution Agreement provides in Section 11.12,
‘DAMAGES: Notwithstanding anything to the contrary
contained in this Agreement, in no event shall either party
be liable to the other for any consequential, incidental,
indirect or special damages, including lost profits and
punitive damages.' In opposition, Plaintiff argues that
punitive damages must be allowed because any contract
language to the contrary is void as against public policy.
The Court concludes that this issue has been mooted by the
Court's dismissal of all the tort claims contained in the
Amended Complaint. As a matter of law, punitive damages are
not recoverable in contract. Thomas v. Nova Southeastern
Univ., 468 Fed.Appx. 98, 100 (3d Cir. 2012)(citing
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153,
1194 (3d Cir. 1993)).
Compensatory damages are the prevailing measure of damages in
contract actions, see generally Perini Corp. v. Greate
Bay Hotel & Casino, Inc., 129 N.J. 479, 497-98, 610
A.2d 364 (1992), absent specific contract language to the
contrary. Obviously no such language exists in the
Distribution Agreement at issue.
Id. at *10-11.
District, Local Civil Rule 7.1(i) governs motions for
reconsideration. Local Civil Rule 7.1(i) will apply rather
than Federal Rule of Civil Procedure 59 where no final
judgment has been entered pursuant to Rule 54(b), but only a
partial grant or denial of summary judgment. See Warner
v. Twp. of S. Harrison, 885 F.Supp.2d 725, 747-48
(D.N.J. 2012). ...