DANDO v. BIMBO FOOD BAKERIES DISTRIBUTION, LLC et al

Filing 49

OPINION FILED. Signed by Judge Noel L. Hillman on 7/5/17. (js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

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Plaintiff,
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v
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BIMBO FOOD BAKERIES
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DISTRIBUTION, LLC, et al.
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Defendants
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ROBERT DANDO,

Civil No. 14-2956 (NLH/KMW)

APPEARANCES:
Terance J. Bennett, Esq.
3431 Route 47
P.O. Box 520
Port Elizabeth, New Jersey 08348
Counsel for Plaintiff
Morgan, Lewis & Bockius LLP
By: Michael J. Puma, Esq. (pro hac vice)
Courtney Wirth Griffin, Esq.
1701 Market Street
Philadelphia, Pennsylvania 19103
Counsel for Defendants

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OPINION

HILLMAN, United State District Judge:
Presently 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.
For the reasons set forth below, the Motion for
Reconsideration will be granted in part and denied as moot in
part.
I.

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On 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., et
al., 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,

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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, 49798, 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.
II.

LEGAL STANDARD
In this 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.

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Harrison, 885 F. Supp. 2d 725, 747-48 (D.N.J. 2012).

However,

the standard for evaluating the request is the same as the
standard under Rule 59(e). Id.
“The scope of a motion for reconsideration . . . is
extremely limited.” Blystone v. Horn, 664 F.3d 397, 415 (3d Cir.
2011).

“The purpose of a motion for reconsideration is ‘to

correct manifest errors of law or fact or to present newly
discovered evidence.’” Lazaridis v. Wehmer, 591 F.3d 666, 669
(3d Cir. 2010) (citing Max's Seafood Cafe ex rel. Lou-Ann, Inc.
v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).

A motion for

reconsideration “must rely on one of three grounds: (1) an
intervening change in controlling law; (2) the availability of
new evidence; or (3) the need to correct clear error of law or
prevent manifest injustice.” Id. (citing N. River Ins. Co. v.
CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
“A party seeking reconsideration must show more than a
disagreement with the Court’s decision, and recapitulation of
the cases and arguments considered by the court before rendering
its original decision fails to carry the moving party’s burden.”
Facteon, Inc. v. Comp Care Partners, LLC, Civ. No. 13-6765, 2015
WL 519414, at *1 (D.N.J. Feb. 9, 2015)(quoting G–69 v. Degnan,
748 F. Supp. 274, 275 (D.N.J. 1990)).

“A motion for

reconsideration should not provide the parties with an

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opportunity for a second bite at the apple.” Tishcio v. Bontex,
Inc., 16 F. Supp. 2d 511, 533 (D.N.J. 1998) (citation omitted).
III.

DISCUSSION

Defendants’ Motion for Reconsideration and their Reply
Memorandum in further support of their Motion 1 assert that the
Court failed to address Defendants’ argument that (1)
consequential damages, (2) exemplary damages of treble the
amount of actual damages, and (3) any monetary award of lost
profits should be dismissed. (Moving Brief, p. 2).
As to consequential damages, Fed. R. Civ. P. 9(g) provides,
“[i]f an item of special damage is claimed, it must be
specifically stated.” 2

No item of consequential damages has been

specifically pleaded in the Amended Complaint, thus the Court
holds that there is no valid claim to consequential damages in
this case at this time.

Therefore, the Court will deny as moot

the motion for reconsideration as to consequential damages.
As to exemplary damages of treble the amount of actual

1

Local Civil Rule 7.1(d)(3) does not permit without prior
permission reply briefs on Motions for Reconsideration.
Defendant did not obtain permission. However, Plaintiff has not
objected to the reply brief and the Court exercises its
discretion to consider the brief notwithstanding Defendants’
noncompliance with the Local Rule.
2

“Special damages are also referred to as consequential damages
and the terms are used interchangeably.” Wartsila NSD N.
American, Inc. v. Hill Int’l, Inc., 530 F.3d 269, 280 n.6 (3d
Cir. 2008).
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damages, similar to the Court’s ruling as to punitive damages,
treble damages are not recoverable on common law contractual and
quasi-contractual claims. See Strassle v. Bimbo Foods Bakeries
Distribution, Inc., No. 12-3313, 2013 WL 1007289, at *7 n. 4
(D.N.J. Mar. 13, 2013); Sunshine v. Reassure America Life Ins.
Co., No. 10-1030, 2012 WL 748669, at *4 (E.D. Pa. Mar. 6, 2012);
see also Edwards v. Travelers Ins. of Hartford, Conn., 563 F.2d
105, 123 (6th Cir. 1977) (holding plaintiff was not entitled to
application of treble damages statute because recovery was based
on common law claim).

As the remaining counts of the Amended

Complaint sound entirely in common law contract and quasicontract, exemplary treble damages are unavailable as a matter
of law.

Moreover, Plaintiffs’ opposition brief does not contest

dismissal of the claim for treble damages.

Accordingly, the

Motion for Reconsideration will be granted as to the claim for
treble damages.
As to lost profits, Plaintiff’s 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).

Complaint does not demand lost profits.

The Amended

Therefore, to the

extent that the motion for reconsideration seeks a ruling that
“any monetary award of lost profits is unavailable,” (Moving
Brief, p. 4-5), it will be denied as moot.

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IV.

CONCLUSION
For the above-stated reasons, Defendants’ Motion for

Reconsideration will be granted in part as to the claim for
treble damages, and denied as moot in all other respects.

An

Order consistent with this Opinion will be entered.

Dated: July 5, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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