United States District Court, D. New Jersey
Michael Vazquez, U.S.D.J.
case comes before the court on PSE&G Fossil LLC and
PSE&G New Haven, LLC's (collectively,
"PSE&G" or "Defendants") motion for
partial summary judgment. The underlying dispute between
Turner Envirologic, Inc. ("Plaintiff or
"Turner") concerns equipment Defendants purchased
from Plaintiffs for locations in Kearny, New Jersey and New
Haven, Connecticut. The Court reviewed the parties'
submissions, and decided the motion without oral argument
pursuant to Fed.R.Civ.P. 78(b) and L. Civ. R. 78.1(b). For
the reasons set forth below, Defendant's motion is
Background & Procedural History
relevant facts have been taken from the parties'
respective statements of material fact, the amended
complaint, and declarations annexed to various submissions.
D.E. 20, 112-1, 116. The issues in this case stem from two
agreements between the parties: one signed on July 23, 2010,
whereby Turner agreed to "design, fabricate and
deliver" equipment to PSE&G's Kearny location
("Kearny Agreement") and the second, also signed on
July 23, 2010, whereby Turner agreed to deliver equipment to
PSE&G's New Haven location ("New Haven
Agreement"). Defendant's SOMF at ¶¶l, 7,
D.E. 112-4, Exs. 1 & 2 to the Declaration of Thomas M.
McNulty Submitted in Support of Defendant's Motion for
Partial Summary Judgment (hereinafter "McNulty
Decl."). Both agreements contained clauses concerning
liquidated damages should the equipment not be delivered on
time, and both required Turner to procure professional
liability insurance with a minimum limit of $5, 000, 000.
Defendant's SOMFat¶¶3, 9, 13.
purchase price in the Kearny Agreement was $8, 129, 885, and
$7, 467, 574 in the New Haven Agreement, for a combined price
of $15, 597, 495 (excluding other fees and additional
purchases). See Ex. 1 & 2 to the McNulty Decl.
Article 37.3 of both the Kearny and New Haven Agreements
provide that if the equipment and materials were not
delivered on time, Turner was to pay PSE&G $3, 000.00 per
day in liquidated damages. Id. Listed in both
Agreements, were "Early Delivery" and a "Late
Delivery" dates by which Turner was to deliver equipment
to the PSE&G locations. Id. On August 25, 2011,
PSE&G notified Turner that both the Kearny and New Haven
sites were being shut down because of an impending storm,
Hurricane Irene, which ultimately caused the Governor of New
Jersey to declare a state of emergency. See Ex. E to
the Declaration of Thomas Turner in Support of Plaintiff s
Response to Partial Summary Judgment (hereinafter
"Turner Decl."), at ¶¶l 6-17.
stipulated that it delivered the equipment to the Kearny
location between October 12 and October 31, 2011, although
the equipment was to be delivered by August 25, 2011 pursuant
to the Kearny Agreement. See Exs. 1-3 to McNulty
Decl. Plaintiff stipulated that it delivered the equipment to
the New Haven location between September 12 and November 11,
2011, although it was to be delivered by August 15, 2011
under the New Haven Agreement. Id. Turner has also
admitted that it only procured one insurance policy for $5,
000, 000, rather than two (one for each agreement, for a
combined $10, 000, 000). Defendant's SOMF at ¶15,
Ex. 5 to McNulty Decl. However, Plaintiff has not admitted
that the equipment was delivered "late, " rather
they contend that the delivery dates were changed at the
agreement of both parties after PSE&G triggered the force
majeure clauses in the Agreements. See Turner Decl.
at ¶¶4, 7. Plaintiff alleges that as of the filing
of the Complaint, PSE&G owes $3, 252, 239.38 under both
agreements ($1, 990, 037.26 for the Kearny equipment and $1,
262, 202.12 for the New Haven equipment). See D.E.
20, First Amended Complaint and Jury Demand, (hereinafter
"Amended Complaint" or "Compl.") at
filed its original Complaint on September 21, 2012. D.E. 1.
On March 18, 2013, Turner filed an Amended Complaint, setting
forth several causes of action, including breach of contract,
goods sold, open account, and unjust enrichment. D.E. 20.
PSE&G Fossil LLC answered, asserting affirmative defenses
and counterclaims on April 12, 2013. D.E. 22. PSE&G New
Haven LLC filed their own Answer asserting affirmative
defenses and counterclaims on the same day. D.E. 23.
Plaintiff answered all counterclaims on May 3, 2013. D.E. 27,
28. In their amended Answer, filed February 25, 2014,
PSE&G Fossil LLC asserted counterclaims for breach of
contract, breach of the implied covenant of good faith and
fair dealing, breach of express warranty, breach of the
implied warranty of merchantablity, breach of the implied
warranty of fitness for a particular purpose, and
professional negligence. D.E. 40. Turner filed an Answer to
PSE&G's counterclaim on August 1, 2015. D.E. 74. The
parties stipulated on February 17, 2016 to the dismissal of
Plaintiffs professional negligence claims against Defendants.
See D. E. 92.
filed the instant motion on January 20, 2017. D.E. 112.
Turner filed its opposition on February 10, 2017. D.E. 114.
Defendants replied on February 17, 2017. D.E. 117. After
reviewing the briefs submitted by the parties, the Court
requested additional briefing on the issue of Defendants'
performance under the contracts. D.E. 124. The parties
submitted letter briefs in response on November 13, 2017.
D.E. 126, 127.
Standard of Review
judgment is proper where the moving party "shows that
there is no genuine dispute as to any material fact, "
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Abraham v. Raso, 183 F.3d
279, 287 (3d Cir. 1999). A fact in dispute is material when
it "might affect the outcome of the suit under the
governing law" and is genuine "if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S.242, 248 (1986). Disputes over irrelevant
or unnecessary facts will not preclude granting a motion for
summary judgment. 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 nonmoving party's evidence 'is
to be believed and all justifiable inferences are to be drawn
in his favor.'" Marino v. Indus. Crating
Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting
Anderson, 477 U.S.at 255)). A court's role in
deciding a motion for summary judgment is not to evaluate the
evidence and decide the truth of the matter but rather
"to determine whether there is a genuine issue for
trial." Anderson, 477 U.S.at 249.
moving for summary judgment has the initial burden of showing
the basis for its motion and must demonstrate that there is
an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S.317, 323 (1986). After the
moving party adequately supports its motion, the burden
shifts to the nonmoving party to "go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial." Id. at 324 (internal quotation marks
omitted). To withstand a properly supported motion for
summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict the moving
party. Anderson, 477 U.S.at 250. "[I]f the
non-movant's evidence is merely 'colorable' or is
'not significantly probative, ' the court may grant
summary judgment." Messa v. Omaha Prop. & Cas.
Ins. Co., 122 F.Supp.2d 523, 528 (D.N.J. 2000) (quoting
Anderson, 477 U.S.at 249-50)).
there is "no genuine issue as to any material fact"
if a party "fails to make a showing sufficient to
establish the existence of an element essential to that
party's case." Celotex Corp., 477 U.S.at
322. "If reasonable minds could differ as to the import
of the evidence, " however, summary judgment is not
appropriate. See Anderson, 477 U.S.at 250-51.
party contests that New Jersey law governs their competing
breach of contract claims. See Brief in Support of
PSE&G Fossil LLC and PSE&G New Haven LLC's Motion
for Partial Summary Judgment, (hereinafter
"Defendant's Brief) at 7; Brief in Support of Turner
Envirologic, Inc.'s Response to Motion for Partial
Summary Judgment, (hereinafter "Opposition Brief) at 4.
To state a claim for breach of contract in New Jersey, the
non-breaching party must show: (1) a valid contract between
plaintiff and defendant; (2) defendant's breach; (3)
plaintiff performed his obligations; and (4) plaintiff was
damaged as a result of defendant's breach. See Goen
Technologies Corp v. NBTY, Inc., 2007 WL 2595753, at *2
(D.N.J. Sep. 4, 2007) (citing New Jersey law); Webb v.
Krudys, 2017 WL 3397029, at *3 (D.N.J. Aug. 8, 2017)
(same, citing Frederico v. Home Depot,507 F.3d 188,
203 (3d Cir. 2007)); Sync Labs LLC v. FusionManufacturing, 2016 WL 6802479, at *9 (D.N.J. Nov.
16, 2016) (same). As noted, in its Amended Complaint,
Plaintiff asserts claims for ...