DANDO v. BIMBO FOOD BAKERIES DISTRIBUTION, LLC et al
OPINION. Signed by Judge Noel L. Hillman on 9/29/2015. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 14-2956 (NLH/JS)
BIMBO FOOD BAKERIES
DISTRIBUTION, LLC, BIMBO FOOD
BAKERIES DISTRIBUTION, INC.,
BIMBO BAKERIES USA, INC., ABC
COMPANIES (a series of
fictitious entities), and
JOHN DOES (a series of
Terance J. Bennett, Esquire
3431 State Road 47
Port Elizabeth, New Jersey 08348
Attorney for Plaintiff Robert Dando
Michael J. Puma, Esquire (admitted pro hac vice)
Courtney Wirth Griffin, Esquire
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, Pennsylvania 19103-2921
Attorneys for Defendants Bimbo Food Bakeries Distribution,
LLC, et al.
HILLMAN, District Judge
This breach of contract case was filed in New Jersey state
court and removed to this Court on the basis of diversity.
Defendants Bimbo Food Bakeries Distribution, LLC, Bimbo Food
Bakeries Distribution, Inc., and Bimbo Bakeries USA, Inc.
(collectively, “Defendants”) move for summary judgment on the
ground that all of the causes of action asserted by Plaintiff
Robert Dando are barred by the court-approved Fair Labor
Standards Act (“FLSA”) class action settlement in Scott v. Bimbo
Bakeries USA, Inc., et al., No. 10-3154, 2012 WL 6151729 (E.D.
Pa. Dec. 11, 2012) (the “Scott litigation”).
be discussed, summary judgment will be denied.
For the reasons to
In the exercise
of caution, the Court will stay its decision for thirty (30)
days to permit Defendants to seek an order from the Eastern
District of Pennsylvania deciding whether or not Plaintiff’s
claims are barred by the Scott release. If the Eastern District
of Pennsylvania determines that Plaintiff’s claims are barred by
the Scott release the Court will vacate its Opinion and Order.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Scott Litigation
On or about February 4, 2010, Plaintiff joined the Scott
FLSA class action litigation.
The plaintiffs alleged they were
owed minimum wage and overtime pay from Bimbo Bakeries pursuant
to the Fair Labor Standards Act (“FLSA”).
On January 31, 2014,
class counsel signed a stipulation of settlement.
settlement agreement released the Defendants from:
[A]ny and all claims, demands, causes of action, fees
and liabilities of any kind whatsoever, whether known
or unknown, whether contingent or non-contingent,
specifically asserted or not . . . that could have been
asserted in the Civil Action based on the factual
allegations therein, that otherwise arise out of,
related to, or in connection with, [his] Distribution
Agreement, or that arise under the Fair Labor
Standards Act (“FLSA”) or any other state or local
wage/hour or wage payment statute/ordinance, for any
type of relief[.]
Defs.’ Br., Ex. D [Doc. No. 18-3].
Plaintiff is a former distributor of bakery products who
owned the exclusive rights to sell Defendants’ products in a
geographic territory in Gloucester County, New Jersey pursuant
to a distribution agreement.
Under the distribution agreement,
if Plaintiff ever desired to sell his exclusive rights,
Defendants had the right of first refusal. Plaintiff alleges
that in early 2014 he notified Defendants of his intention to
sell his exclusive rights to a third party for $289,900.
Plaintiff alleges Defendants informed him that the price
was too high and claimed the right to approve the sale. Compl. ¶
Plaintiff thereafter presented Defendants with a notice of
intent to sell his exclusive rights at the price of $210,000 to
the same buyer.
Compl. ¶ 11.
Plaintiff alleges that after
refusing to let Plaintiff sell his rights for $289,900,
Defendants exercised their right to buy the route for $210,000,
depriving Plaintiff of a $79,900 profit just weeks after the
Scott settlement agreement was signed.
Compl. ¶¶ 13, 16.
On or about March 27, 2014, Plaintiff filed a two-count
complaint in the Superior Court of New Jersey, Law Division,
Gloucester County, asserting various contractual, quasicontractual and tort claims under state law related to his
distribution agreement with Defendants.
On May 16, 2014,
Defendants moved to dismiss Plaintiff’s complaint on the ground
that Plaintiff was precluded from bringing these claims due to
his participation in the Scott litigation which released
Defendants from Plaintiff’s current claims.
The Court denied
Defendants’ motion to dismiss without prejudice and permitted
Defendants to convert its motion to one for summary judgment so
that it could consider the terms of the settlement and release
in the Scott litigation. See Jan. 12, 2015 Op. and Order [Doc.
Nos. 15, 16].
There is complete diversity between Plaintiff and Defendants
and, therefore, this Court exercises subject matter jurisdiction
pursuant to 28 U.S.C. § 1332. See Dec. 9, 2015 Op. and Order
[Doc. Nos. 15, 16].
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the Court is
satisfied that “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show 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, 322 (1986); Fed. R. Civ. P. 56(c).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
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).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
U.S. at 323.
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.
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
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. 2001).
Defendants argue summary judgment is proper because: (1)
the court-approved release of the claims in the Scott litigation
bars future claims covered by the release; (2) Plaintiff’s
causes of action relate to his Distribution Agreement and are
covered by the Scott release; and (3) the court-approved release
of claims in Scott is a final judgment with preclusive effect on
Plaintiff in turn argues that the Scott settlement
was not intended to be so broad as to preclude the claims of the
suit at bar.
Thus, the question that must be answered is whether
Plaintiff’s claims are barred by the Scott release.
finds that the settlement agreement released Defendants from
claims regarding the FLSA class action litigation and not
Plaintiff’s claims at bar.
The Notice of Lawsuit in the Scott
litigation describes the lawsuit as follows: “Plaintiffs contend
they are owed minimum wage and overtime pay under the Fair Labor
Standards Act (‘FLSA’).”
[Doc. No. 17-5].
Plaintiff now brings
a breach of contract claim alleging that Defendants swindled him
out of a $79,900 profit from the sale of his distribution rights
after the Scott settlement agreement was signed.
settlement does not cover breach of contract claims which do not
remotely concern the FLSA or minimum wage violations.
Defendants cite Freeman v. MML Bay State Life Ins. Co., 445
F. App’x 577 (3rd Cir. 2011), for the proposition that a class
action settlement can bar separate and future claims by a class
However, the Freeman court further explained that
“[t]he key inquiry is whether the factual predicate for future
claims is identical to the factual predicate underlying the
Id. at 579.
The claims at bar are
completely diverse from the claims resolved in the class
Thus, the Court finds Plaintiff’s claims are not
covered by the Scott release.
For the same reasons, the
doctrine of res judicata is inapplicable since the release did
not cover Plaintiff’s claims.
For the foregoing reasons, Defendants’ motion for summary
judgment [Doc. No. 18] is denied.
The Court will stay its
decision for thirty (30) days to permit Defendants to seek an
order from the Eastern District of Pennsylvania deciding whether
or not Plaintiff’s claims are barred by the Scott release.
Order consistent with this Opinion will be entered.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated: September 29, 2015
At Camden, New Jersey
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