SAMOST et al v. LUBORSKY et al
OPINION FILED. Signed by Judge Robert B. Kugler on 3/24/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSEPH AND IVA SAMOST,
HONORABLE ROBERT B. KUGLER
Plaintiffs / Counterclaim
CIVIL ACTION NO. 13-7365
Defendant / Counterclaim
HAGNER & ZOHLMAN, LLC
By: Thomas J. Hagner, Esq.
57 Kresson Road
Cherry Hill, New Jersey 08034
Counsel for Plaintiffs / Counterclaim Defendants
GREEN, LUNDGREN & RYAN, ESQS.
By: Francis X. Ryan, Esq.
20 Brace Road, Suite 200
Cherry Hill, New Jersey 08034
Counsel for Defendant / Counterclaim Plaintiff
KUGLER, United States District Judge:
Perhaps to oversimplify more than 15 years’ worth of
litigation between the parties and their various family members,
the instant case is about a dam.
Specifically at issue is
Counterclaim Defendant Joseph Samost’s legal responsibility to
construct a dam (and resulting lake) adjacent to Counterclaim
Plaintiff Paula Luborsky’s property in Marlton, New Jersey. 1
Presently before the Court are two motions, both filed by
Counterclaim Defendant Joseph Samost: (1) a “Motion to Vacate
Orders [pursuant to Fed. R. Civ. P. 60(b)], or Alternatively, in
Aid of Litigant’s Rights” (Docket #33); and (2) a Motion for
Summary Judgment (Docket #46).
For the reasons stated herein,
both motions will be denied in their entirety, except that summary
judgment is warranted on Luborsky’s unjust enrichment
This suit involves the enforcement of a settlement agreement
in a case filed in 1999, which was principally between Joseph
Samost and his son, Stephen Samost, although Paula Luborksy,
Stephen Samost’s estranged wife, was a defendant to the suit as
The Court exercises diversity of citizenship subject matter
jurisdiction pursuant to 28 U.S.C. § 1332.
Oral argument on the instant motions was to be held on March 17,
2016. When counsel for Luborsky failed to appear, the Court
adjourned the argument to April 7, 2016. However, upon further
reflection, the Court has concluded that oral argument is
unnecessary. See generally L. Civ. R. 78.1(b)(“All motions and
other applications will be decided on the papers submitted unless
(1) a party requests oral argument and the request is granted . .
. or (2) the Court, sua sponte, directs that oral argument be
That settlement agreement, signed in 2004, as well as
several other court orders, undisputedly requires Joseph Samost to
construct the dam at issue.
The instant iteration of the dispute between Plaintiff /
Counterclaim Defendant Joseph Samost and Defendant / Counterclaim
Plaintiff Paula Luborsky was originally part of three related
suits, all filed around the same time in 2013.
consolidated at least for discovery purposes.
Then, on December 30, 2014, Judge Irenas held oral argument
on seven motions filed in the various cases, after which he
granted summary judgment to various defendants on all of Joseph
Samost’s claims in all cases. 4
Most directly relevant to the
instant motions, Judge Irenas also granted summary judgment, as to
liability only, to Luborksy on her counterclaims to enforce the
2004 settlement agreement and her breach of contract claim based
on the same settlement agreement. 5
(See 13-cv-7365, Docket #16)
Senior United States District Judge Irenas presided over that
suit, and the present suit, until his death in October 2015, when
the case was reassigned to the undersigned.
Recently, the Court of Appeals affirmed in part and reversed and
remanded in part Joseph Samost’s suit against Stephen Samost and
Stephen’s various corporate entities, Civil Action Number 13-6886.
Mandate issued on March 7, 2016. A docket entry directs Joseph
Samost to prepare and file a proposed order on mandate. To date,
no such order has been filed.
The only difference between the two claims seems to be the
potential damages available. For example, attorneys fees may be
Joseph Samost presently seeks to vacate four separate orders
entered by Judge Irenas which would, in effect, undo 15 years of
litigation by relieving Joseph Samost of his obligation to build
Alternatively, Joseph Samost seeks to compel Luborsky to
allow entry onto her property for construction of the dam / lake
at issue-- a dam which this Court has held, multiple times, was
(and is) Samost’s responsibility to construct since the settlement
of the original suit in 2004.
Now, more than 10 years later,
Samost contends that Luborsky has made it “impossible” (Moving
Brief, p. 7) for him to comply with his obligations under the
settlement agreement and related court orders.
The issue of Luborksy’s damages-- which mainly involves the
diminution of her property’s value (i.e., her lake-front property
has no lake) 6-- is the subject of the instant summary judgment
recoverable on the enforcement of the settlement claim, whereas
fees usually are not recoverable for breach of contract.
Luborsky’s Answer also asserts a third counterclaim for
Judge Irenas ordered, “[c]ompensation for Luborsky’s ‘loss of
use and enjoyment of’ the subject property may be allowed if the
relevant dam is constructed prior to the resolution of this suit.
Otherwise, the Court shall treat that issue as subsumed by the
issue of the property’s diminution in value.” (Docket #27, Order
of February 24, 2015).
In granting Luborsky’s motion for summary judgment as to
liability, Judge Irenas stated in his oral opinion, “[t]he Court’s
previous orders could not be more clear: Joseph Samost has always
had responsibility for Flamingo Road and related dams.”
Decl. Ex. A, Transcript of December 29, 2014 hearing, p. 51)
is precisely those orders which Samost now seeks to vacate.
Federal Rule of Civil Procedure 60(b) provides, in relevant
part, “[o]n motion and just terms, the court may relieve a party .
. . from a final judgment, order or proceeding [when] . . .
applying [the judgment] prospectively is no longer equitable” or
for “any other reason that justifies relief.”
Fed. R. Civ. P.
60(b)(5) and (6).
Under Federal Rule of Civil Procedure 56(a), “[t]he court
shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”
A genuine dispute of material
fact exists only if the evidence is such that a reasonable jury
could find for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
When determining whether there is
a genuine issue of material fact, the court views the facts, and
draws all reasonable inferences, in favor of the nonmoving party.
Id. at 255.
Although the movant bears the burden of demonstrating that
there is no genuine issue of material fact, the non-movant
likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Anderson, 477 U.S. at 256.
The nonmoving party must at least present probative evidence from
which jury might return a verdict in his favor. Id. at 257.
movant is entitled to summary judgment where the nonmoving party
fails to “make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
The Court first addresses the Motion to Vacate Orders, and
then the Motion for Summary Judgment.
The Motion to Vacate fails for three reasons.
First, the Motion is procedurally improper because it seeks
to vacate orders entered in a different case.
The orders sought
to be vacated were filed in the original 1999 Joseph Samost v.
Stephen Samost suit, 99-cv-3035.
The Rule 60(b) Motion filed in
this case is not the proper vehicle for the relief Joseph Samost
seeks; obtaining such relief would require a motion to reopen the
Second, even if Joseph Samost could overcome the heavy
presumption of finality that attaches to the closure of 15 yearold case, and additionally, the finality that attaches to four
separate court orders entered in 2001, 2004 and 2005, it would not
matter because there is still another order that requires Samost
to construct the dam: the order entered in this case, granting
summary judgment to Paula Luborsky on her claims to enforce the
settlement of the 1999 case.
As discussed below, Samost
apparently mistook what that order said, and so he has not moved
to vacate it.
But that December 30, 2014 Order does indeed
separately impose an obligation to construct the dam.
Judge Irenas reaffirmed for a fifth time: Joseph Samost must
construct the dam.
Third, even assuming arguendo that under Rule 60(b) the Court
could grant the relief Joseph Samost seeks, Samost has not
sustained his burden of demonstrating that “applying [the
challenged orders] prospectively is no longer equitable.” Fed. R.
Civ. P. 60(b)(5).
Samost has been obliged to build the dam at
issue since 2004, and yet no dam has been built.
The Court cannot
hold on this record that the equities favor Samost.
Court need not make any factual findings at this time, the instant
motion begs the question, perhaps if Samost had timely complied
with the Court orders he now seeks to vacate, he would not
presently find himself in the alleged impossible position he
Samost’s alternative request for relief also fails.
Simply put, Joseph Samost-- the Counterclaim Defendant to
Luborsky’s counterclaims-- has no “rights” to enforce.
identified no statute, regulation, contract, title, deed, or any
other authority requiring Luborsky to grant anyone a license to
enter her property.
Samost has the opposite of a right; he has an
obligation to build the dam.
Samost has no legal basis for the alternative relief he
The motion will be denied in its entirety.
Before turning to the damages issues raised by the summary
judgment motion, three other issues must be disposed of.
First, as noted above, Samost appears to misunderstand Judge
Irenas’s order of December 30, 2014.
The issue of Samost’s
Samost asserts no separate reason that would justify relief
under Rule 60(b)(6). Thus, for the same reasons the Court will
deny relief under Rule 60(b)(5), the Court will deny relief under
liability to Luborsky was decided in Luborsky’s favor and against
Samost when Judge Irenas granted summary judgment as to liability
only on Luborsky’s counterclaims.
The Order states: “Docket # 41,
Motion for Summary Judgment by Paula Luborsky is hereby GRANTED as
to the counterclaims against Joseph Samost only.” (i.e., the
motion was denied insofar as it sought relief against Iva Samost.
Joseph Samost’s cross-motion as to this issue was granted in the
same order, thereby terminating Iva Samost as a party to this
Judge Irenas’ oral opinion from the bench confirms this
Judge Irenas held, “as a matter of law, Joseph is not
entitled to the declaration he seeks with respect to Flamingo Road
and the dams, and Luborsky is, as a matter of law, entitled to
enforce the Court’s previous orders.” (Boyer Decl. Ex. A,
Transcript of December 29, 2014 hearing, p. 53)
the several other motions argued at the hearing, Judge Irenas
summed up: “Thus, the only remaining issues in this case are, 1,
the relief, the damage issues related to Luborsky’s claim against
Joseph and any motion to reopen, which might be filed . . . .
That’s all that’s left in the case.” (Id., p. 57-58) (No motion to
reopen was ever filed.)
Therefore, Samost’s arguments that attempt to negate
liability-- namely, the receiver argument and the statute of
limitations argument-- are precluded.
Samost’s liability has been
established as a matter of law, and will not be revisited.
Second, Samost asserts that “Luborsky’s claims fail because
her damages do not rise to the jurisdictional requirement of this
Court.” (Reply Brief, p. 6)
This argument is clearly meritless.
Luborsky’s claims are counterclaims.
This Court’s subject matter
jurisdiction over those claims derives not from the diversity
statute, 28 U.S.C. § 1332, but rather, the supplemental
jurisdiction statute, 28 U.S.C. § 1367.
no jurisdictional threshold.
Unlike § 1332, § 1367 has
So long as this Court has subject
matter jurisdiction over Samost’s claims against Luborsky-- which
appears beyond dispute given Samost’s assertions that rebuilding
the dam will cost “millions” of dollars (Boyer Decl. Ex. A,
Transcript of December 29, 2014 hearing, p. 9)-- this Court may
exercise jurisdiction over Luborsky’s counterclaims.
Third, as Samost observes, the record is unclear as to
whether Luborsky’s unjust enrichment counterclaim against Samost
has been dismissed.
However, the parties appear to agree that, as
a matter of law, the unjust enrichment claim cannot survive now
that Luborsky has successfully obtained summary judgment on her
breach of contract claim.
The Court finds no order explicitly
dismissing the unjust enrichment counterclaim.
For clarity’s sake
the Court will grant summary judgment to Samost on the unjust
Finally, as to summary judgment on Luborsky’s damages, Samost
argues he is entitled to summary judgment because: (1) Luborsky
has suffered no damages; (2) any damages she has suffered were not
foreseeable; and (3) she has failed to mitigate her damages.
Samost argues that Luborsky has suffered no damages because
she testified at her deposition that she intends to stay in her
He reasons that Luborsky can only suffer
damages if she sells her property at a lower price. 8
This argument fails.
Even assuming arguendo that Luborsky
can recover nothing for the diminution of value of her property /
loss of use and enjoyment of her property, the record demonstrates
that she has suffered other damages, most notably attorneys fees
incurred in seeking to enforce the 2004 settlement, as well as
property maintenance costs resulting from Samost’s failure to
maintain and rebuild the adjacent road and dam.
With regard to the foreseeability of Luborsky’s damages as a
result of Samost’s breach of the 2004 settlement agreement,
Luborsky has put forth sufficient evidence to raise a jury
question as to foreseeability.
A reasonable factfinder could find
that Samost’s extremely prolonged failure to rebuild Flamingo
Samost also asserts that “[b]y the time Ms. Luborsky might want
to sell her home, the remaining dam will be restored,” (Moving
Brief, p. 10)-- a questionable assertion given: (a) the history of
this litigation, and (b) Samost’s instant motion to vacate the
orders requiring him to construct the dam.
Road, and the dam, would foreseeably lead to diminution in
property value, loss of use and enjoyment of the property, and
related maintenance costs to Luborsky’s property.
Mitigation of damages is also a jury question.
law does not require mitigation at any cost.
Rather, as Samost’s
own papers acknowledge, a non-breaching party is only obligated to
take reasonable steps to mitigate damages. See Ingraham v.
Trowbridge Builders, 297 N.J. Super. 72, 82-83 (App. Div.
1997)(“[I]t is well settled that injured parties have a duty to
take reasonable steps to mitigate damages.
Damages will not be
recovered to the extent that the injured party could have avoided
his losses through reasonable efforts without undue risk, burden
or humiliation.”)(internal citations and quotations omitted;
Samost proposes that Luborksy should have
mitigated her damages by “restoring the lakes herself.” (Moving
brief, p. 12)
Luborsky is entitled to have a jury evaluate the
reasonableness of Samost’s proposal. See id. at 84 (“Whether or
not a plaintiff’s efforts to mitigate his or her damages are
reasonable is a question for the trier of fact.”).
Samost’s Motion for Summary Judgment will be denied except as
to Luborsky’s unjust enrichment counterclaim.
For the above-stated reasons, Joseph Samost’s motions will be
denied, except that summary judgment will be granted as to
Luborsky’s unjust enrichment counterclaim.
An appropriate Order accompanies this Opinion.
March 24, 2016
__s/ Robert B. Kugler_____
Robert B. Kugler, U.S.D.J.
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