LACROCE v. M. FORTUNA ROOFING, INC. et al

Filing 62

OPINION. Signed by Chief Judge Jerome B. Simandle on 1/31/2017. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SAVERIO LACROCE,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 14-7329 (JBS/KMW)

v.
M. FORTUNA ROOFING, INC. AND
MICHAEL FORTUNA

OPINION

Defendants/
Third Party
Plaintiffs,
v.
A PLUS ROOFING AND
CONTRACTING, INC. AND
POLYGLASS USA INC.,
Third Party
Defendants.

APPEARANCES:
Salvatore J. Siciliano, Esq.
SICILIANO & ASSOCIATES, LLC
16 South Haddon Ave., P.O. Box 25
Haddonfield, NJ 08033
Attorney for Plaintiff
Dante B. Parenti, Esq.
HOFFMAN DIMUZIO
1739-1753 Delsea Dr., P.O. Box 285
Franklinville, NJ 08322
-andJohn J. Delany, III, Esq.
DELANY McBRIDE
36 Euclid St.
Woodbury, NJ 08096
Attorney for Defendants/Third-Party Plaintiffs M. Fortuna
Roofing, Inc. and Michael Fortuna

John J. Van Dyken, Esq.
MINTZER SAROWITZ ZERIS LEDVA & MEYERS LLP
2070 Springdale Rd., Suite 400
Cherry Hill, NJ 08003
Attorney for Third-Party Defendant A Plus Roofing and
Contracting, Inc.
Philip John Degnan, Esq.
MARKS O’NEIL O’BRIEN & COURTNEY
6981 N. Park Dr., Suite 300
Pennsauken, NJ 08109
Attorney for Third-Party Defendant Polyglass USA Inc.

SIMANDLE, Chief Judge:
INTRODUCTION
Pending before the Court are unopposed motions for summary
judgment filed by Third-Party Defendants Polyglass U.S.A.
(hereinafter, “Polyglass”) and A Plus Roofing and Contracting,
Inc. (hereinafter, “A Plus”) against Defendants/Third-Party
Plaintiffs M. Fortuna Roofing, Inc. and Michael Fortuna
(hereinafter, “Fortuna”) (collectively, “Defendants”).

The

motions arise from a breach of contract and negligence action in
which Plaintiff Saverio Lacroce (hereinafter, “Plaintiff”) filed
suit against Defendants after an alleged malfunctioning of a
newly-installed polyglass roof on his commercial property.

For

the following reasons, the Court grants both motions for summary
judgment.

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BACKGROUND1
A. Factual Background
On September 22, 2011, Defendants entered into a written
agreement with Plaintiff for the installation of an approximate
56,000 square-foot new roof system consisting of white polyglass
“G Torch” applied surface material at Plaintiff’s property on
815 Hylton Road, Pennsauken, New Jersey 08110. (A Plus Statement
of Material Facts at ¶ 1; Ex. B.)

The “G Torch was manufactured

by Polyglass.” (Polyglass SMF at ¶ 1, 4.)

A written contract

existed between Plaintiff and Fortuna, but no written agreement
existed between Plaintiff and A Plus or Fortuna and A Plus
regarding the roof repair. (A Plus SMF at ¶ 2.)
As part of Plaintiff’s “attempt to save money,” he ordered
materials and directly paid a supplier, Ivan Roofing Supply Co.,
instead of using Defendants’ products. (Ex. F. to A Plus’s SMF.)
When the materials arrived at Plaintiff’s property, Defendants
“noticed a problem with the materials in that they were not
consistent in quality and some materials appeared almost as
seconds.” (Id.)

Defendants were advised by Plaintiff “to

1

The Court distills this undisputed version of events from the
parties’ statements of material facts, affidavits, and exhibits
accompanying both pending motions for summary judgment. Because
Defendants failed to oppose either motion, all facts contained
within the Third-Party Defendants’ Statements of Material Facts
are deemed admitted for the purposes of this motion. See L. Civ.
R. 56.1(a)(“[A]ny material fact not disputed shall be deemed
undisputed for the purposes of the summary judgment motion.”).
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install the questionable materials anyway.” (Id.)

Defendants

and A Plus then installed the new roof as directed. (Id.)
Mr. Fortuna applied for the construction permit for the
roof repair, directly received all payments for the work from
Plaintiff, and was also the contractor on record for the repair.
(A Plus SMF at ¶¶ 4-6.)

Defendants considered the A Plus

workers as “associates,” not subcontractors, meaning that
Defendants were the “contractor of record” but A Plus personnel
were “working with” Mr. Fortuna. (Fortuna Dep. at 73: 7-9.)
However, Mr. Fortuna did not know whether the A Plus workers,
which included “four to six Hispanic workers that were [Mr.
Lichter’s crew],” were considered employees or independent
contractors. (Id. at 240: 1-7.)

Mr. Fortuna observed Mark

Lichter, President of A Plus, “moving product, doing setup” and
“moving guys around,” but saw only Mr. Lichter’s crew using a
torch. (Id. at 249: 5-25.)
Defendants commenced work at Plaintiff’s property in late
October 2011, and completed the work in January 2012. (Polyglass
SMF at ¶ 5.)

Defendants paid A Plus six times via cash and kept

receipts of the transactions. (Ex. E to A Plus’s SMF).
Approximately “a year or so” after the installation, a
series of problems occurred with the roof. (Id.)

After air

conditioning units needed to be replaced due to vandalism,
“water started to enter the building . . . causing leaks.” (Id.)
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Defendants claim that the leaking roof was caused by a defective
product manufactured by Third-Party Defendant Polyglass,
specifically regarding defective “salvage edges,” also known as
“adhesive edges.” (A Plus SMF at ¶ 10; Polyglass SMF at ¶ 6-7.)
When Mr. Fortuna had received various deliveries during the
install, he claimed that some of the rolls had salvage edges
significantly shorter than manufacturing specifications, but
after discussing the issue with Plaintiff, he decided to install
the rolls anyway. (Polyglass SMF at ¶¶ 7-9.)

Steven Wadding,

technical services manager at Polyglass, testified that the
investigation performed by Polyglass revealed no manufacturing
defects, but only improper installation. (Id. at ¶ 16.)
B. Procedural History
Plaintiff filed a Complaint against Defendants on November
24, 2014, asserting breach of contract and negligence claims.
[Docket Item 1.]

On January 8, 2015, in addition to filing

their Answer to Plaintiff’s Complaint, Defendants brought a
Third-Party Complaint against Third-Party Defendants Polyglass
and A Plus. [Docket Item 8.]

Defendants asserted breach of

contract and negligence claims against A Plus, as well a
manufacturing defect claim against Polyglass. (Id.)

Polyglass

filed its motion for summary judgment on July 20, 2016 [Docket
Item 56], and A Plus filed its motion for summary judgment on

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July 21, 2016. [Docket item 57.]

Third-party Plaintiffs did not

file opposition to either motion.
STANDARD OF REVIEW
This Court exercises diversity jurisdiction under 28 U.S.C.
§ 1332, and New Jersey law supplies the rule of decision.
Where, as in the instant case, a summary judgment motion is
unopposed, Rule 56(e)(3), Fed. R. Civ. P. still requires the
Court to satisfy itself that summary judgment is proper because
there are no genuine disputes of material fact and the movant is
entitled to judgment as a matter of law.2

See also Anchorage

2

Rule 56(e), Fed. R. Civ. P. was amended in 2010 to address the
situation where a party fails to oppose a motion for summary
judgment. Rule 56(e) gives the court options when considering a
summary judgment motion that is unopposed in whole or in part,
providing:
If a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of
fact as required by Rule 56(c), the court may: (1) give an
opportunity to properly support or address the fact; (2)
consider the fact undisputed for the purposes of the
motion; (3) grant summary judgment if the motion and
supporting materials – including the facts considered
undisputed – show that the movant is entitled to it; or (4)
issue any other appropriate order.
Under Rule 56(e)(3), one of those options is to grant summary
judgment if the motion and supporting materials show that the
movant is entitled to it. The Advisory Committee Notes for Rule
56(e) (2010 Amendments) explain that granting summary judgment
on the unopposed motion is not automatic, as “[c]onsidering some
facts undisputed does not of itself allow summary judgment . . .
. Once the court has determined the set of facts – both those it
has chosen to consider undisputed for want of a proper response
or reply and any that cannot be genuinely disputed despite a
procedurally proper response or reply – it must determine the
6

Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175
(3d Cir. 1990)(interpreting prior version of Rule 56). Federal
Rule of Civil Procedure 56(a) generally provides that the “court
shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact” such that the movant
is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A “genuine” dispute of “material” fact exists where a
reasonable jury’s review of the evidence could result in “a
verdict for the non-moving party” or where such fact might
otherwise affect the disposition of the litigation.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v.

Disputes over

irrelevant or unnecessary facts, however, fail to preclude the
entry of summary judgment. Id.

Conclusory, self-serving

submissions cannot alone withstand a motion for summary
judgment. Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d
254, 263 (3d Cir. 2012) (internal citations omitted).
Further, in an unopposed motion, a movant who files a
proper Local Civil Rule 56.1 statement of undisputed material
facts (“SUMF”) receives the benefit of the assumption that such
facts are admitted for purposes of the summary judgment motion.

legal consequences of these facts and permissible inferences
from them.” Notes of the Advisory Committee, Rule 56(e)(2010
Amendments). Thus, the suggested practice is to make an
independent determination whether the unopposed record warrants
awarding summary judgment to the movant.
7

See L. Civ. R. 56.1 (providing that “any material fact not
disputed shall be deemed undisputed for the purposes of the
summary judgment motion”).

Accordingly, where a properly filed

and supported summary judgment motion is unopposed, it would be
an exceptional case where the court concludes that summary
judgment should nonetheless be denied or withheld, although the
Court has discretion to do so if unsatisfied that the law and
facts point to judgment as a matter of law.
DISCUSSION
A. Polyglass U.S.A., Inc. Motion for Summary Judgment and
Sanctions
Defendants filed a letter on September 20, 2016 explaining
that they do not oppose Polyglass’s motion for summary judgment,
and agreed to the dismissal of the manufacturing defect claim
against Polyglass in its Third Party Complaint. [Docket Item
60.]

As a result, Defendants/Third Party Plaintiffs’ Third

Party Complaint is dismissed as to Polyglass, as well as any and
all cross claims asserted by co-defendants.
Polyglass also seeks attorneys’ fees and costs from
Defendants pursuant to the New Jersey Frivolous Claims Act,
N.J.S.A. 2A:15-59.1, which is typically brought in state court
pursuant to N.J. Ct. R. 1:4-8, and is “patterned after Rule 11
of the Federal Rules of Civil Procedure.” Marenbach v. City of
Margate, 942 F. Supp. 2d 488, 496 (D.N.J. 2013)(citations

8

omitted).

N.J.S.A. 2A:14-59.1(b) provides that “in order to

find that a complaint . . . was frivolous, the judge shall find”
that either “(1) the complaint . . . was commenced, used or
continued in bad faith, solely for the purpose of harassment,
delay or malicious injury, or (2) [t]he non-prevailing party
knew, or should have known, that the complaint . . . was without
any reasonable basis in law or equity and could not be supported
by a good faith argument for an extension, modification, or
reversal of existing law.”

Polyglass seeks sanctions against

Defendants because after the January 7, 2016 deposition of Mr.
Fortuna, Defendants “continued to pursue this matter” even
though Defendants’ counsel “was aware of all facts that negated
liability in this case as to [Polyglass].” (Polyglass Br. at
15.)

After that January 7 deposition, counsel for Polyglass

sent a letter to counsel for Defendants explaining that after
“extensive discovery in this matter,” “[t]here is absolutely no
evidence, other than [Mr. Fortuna’s] unsupported testimony, of
any ‘manufacturing defect’ with regard to the materials utilized
at [the] jobsite.” (Ex. H. to Polyglass Br.)

Furthermore,

counsel for Polyglass wrote that “[a]ny continued litigation
against my clients is frivolous and must immediately cease.”
(Id.)

Counsel for Polyglass “received no response” from counsel

for Defendants. (Polyglass Br. at 14.)

Then, after Polyglass

filed its motion for summary judgment on July 20, 2016, which
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included arguments related to sanctions, Defendants failed to
oppose the motion, and instead, two months later, on September
20, 2016, submitted a letter to the Court agreeing to the
dismissal of Polyglass from the case. [Docket Item 60.] Counsel
for Polyglass argues that Defendants’ actions forced Polyglass
“to expend defense costs, despite the glaring reality that no
cause of action existed here.” (Polyglass Br. at 15.)
Despite the troubling conduct exhibited by Defendants’
counsel, the Court will not award sanctions under N.J. Ct. R.
1:4-8, N.J.S.A. 2A:15-59.1, or Rule 11, Fed. R. Civ. P. at this
time.

Under any of the sanctions rules, the party seeking

sanctions “must file an independent motion or application,
separate from any substantive motion that party files.”
Marenbach, 942 F. Supp. 2d at 498; Fidanzato v. Somerset,
Hunterdon, and Warren Counties Vicinage 13, No. 11-5132, 2012 WL
4508008, at *9 (D.N.J. Sept. 28, 2012) (explaining that “a party
wishing to avail itself of the NJFCA must proceed by way of
motion); see also N.J.S.A. 2A:15–59.1(c) (“A party . . . seeking
an award under this section shall make application to the court
which heard the matter.

The application shall be supported by

an affidavit.”); N.J. Ct. R. 1:4–8(b)(1)) (“An application for
sanctions under this rule shall be by motion made separately
from other applications and shall describe the specific conduct
alleged to have violated this rule.”); Fed. R. Civ. P. 11(c)(2)
10

(“A motion for sanctions must be made separately from any other
motion and must describe the specific conduct that allegedly
violates Rule 11(b).”).
Polyglass makes its request for attorneys’ fees and costs
pursuant to the New Jersey Frivolous Claims Act as part of its
motion for summary judgment briefing.
improper.

This is procedurally

Should Polyglass wish to pursue its request for

attorneys’ fees and costs, it should do so in accordance with
the proper procedure set forth by the applicable rules.3

This

includes submitting an independent motion for sanctions outside
of its summary judgment briefing, as well as an affidavit
stating in detail: “[t]he nature of the services rendered, the
responsibility assumed, the results obtained, the amount of time

3

Ordinarily, Rule 11, Fed. R. Civ. P., provides the procedure in
federal court for seeking sanctions against a party which has
filed a pleading lacking a reasonable basis in law or fact. The
Court makes no determination whether the New Jersey statute in
N.J.S.A. 2A:15-59.1 governs such a motion in federal court.
Under the command of Erie R. Co. v. Tompkins, 304 U.S. 64
(1938), and Hanna v. Plumer, 380 U.S. 460 (1965), this federal
court, exercising diversity jurisdiction over a claim arising at
state law, is obliged to apply state substantive law while
always applying federal procedural rules. Whether a motion made
under authority of N.J.S.A. 2A:15-59.1 is substantive (and thus
state law applies) or procedural (in which case a state
procedural statute will not apply) need not be determined at
present because the present motion is defective under both
schemes of § 2A: 15-59.1 and Rule 11, Fed. R. Civ. P. See also
Marenbach, 942 F. Supp. 2d at 491 n.6. Where, as here, the
party seeking sanctions has not filed a claim for frivolous
litigation under N.J.S.A. 2A: 15-59.1, it is doubtful that the
statute can play the procedural role of Rule 11.
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spent by the attorney, any particular novelty or difficulty, the
time spent and services rendered by secretaries and staff, [and]
other factors pertinent in the evaluation of the services
rendered.” N.J.S.A. 2A:15-59.1(c)(1); see also Cole v. Town of
Morristown, 627 F. App’x 102, 107 (3d Cir. 2015) (affirming the
denial of sanctions because the motion “did not comply with
mandatory requirements,” including the affidavit outlining
expenses and fees under N.J.S.A. 2A:15-59.1(c)).

Thus, the

Court denies Polyglass’ request for sanctions without prejudice.4
B. A Plus Roofing and Contracting, Inc. Motion for Summary
Judgment
While Defendant did not submit an opposition to A Plus’s
motion for summary judgment, Defendants did not agree to dismiss
the counts against A Plus, as it did for Polyglass.

Because the

Court has an independent obligation to determine whether summary
judgment is appropriate on any particular point, the Court will
address the motion on the merits. See Anchorage Assocs. V.
Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir.

4

Should Polyglass wish to file its motion for sanctions
appropriately, it “shall be filed with the court no later than
20 days following the entry of final judgment.” N.J. Ct. R. 1:4–
8(b)(2). This contrasts with L. Civ. R. 11.3, which provides
that “[a]ll applications for sanctions pursuant to Fed. R. Civ.
P. 11 shall be filed . . . prior to the entry of final
judgment.” Because claims between Plaintiff and Defendants
remain to be determined, the prospect of entry of final judgment
is not imminent and substantial time remains to file a Rule 11
motion; any Rule 11 motion for costs and attorneys’ fees must be
accompanied by an affidavit comporting with L. Civ. R. 54.2.
12

1990) (“[T]his does not mean that a moving party is
automatically entitled to summary judgment if the opposing party
does not respond”); Harley v. Geithner, No. 07-3559, 2010 WL
3906642, at *9 (D.N.J. Sept. 29, 2010) (declining to find that
Plaintiff had conceded certain issues to Defendant because he
did not file an opposition).
Upon an independent review of the record, however, the
Court is persuaded that summary judgment is appropriate for
Third-Party Plaintiffs’ breach of contract claim and negligence
claim because, upon the facts of record, they cannot meet their
initial prima facie burden, as now explained.
1. Breach of Contract
First, A Plus argues that it is entitled to summary
judgment on Defendants’ breach of contract claim because
Defendants have failed to identify with any particular
definiteness any contractual terms breached by A Plus, and that
there was no defined obligation under the contract.

The Court

agrees.
In New Jersey, a plaintiff must allege four elements to
state a claim for breach of contract: (1) a valid contract
“containing certain terms,” (2) plaintiff “did what the contract
required them to do” (2) defendant’s breach of the contract, and
(3) damages resulting from that breach. See Globe Motor Co. v.
Igdalev, 139 A.3d 57, 64 (N.J. 2016)(citations omitted).
13

Regarding the first element, a contract arises from offer and
acceptance, and must be sufficiently definite so that the
performance to be rendered by each party can be ascertained with
reasonably certainty. Baer v. Chase, 392 F.3d 609, 619 (3d Cir.
2004) (citing Weichert Co. Realtors v. Ryan, 608 A.2d 280, 284
(N.J. 1992)).

“An agreement so deficient in the specification

of its essential terms that the performance by each party cannot
be ascertained with reasonable certainty is not a contract, and
is not an enforceable one.” Baer, 392 F.2d at 619 (citations
omitted).

Additionally, to prevail on a breach of contract

claim, a party must prove the opposing party’s failure to
perform a defined obligation under the contract. EnviroFinance
Group, LLC v. Envtl. Barrier Co., LLC, 113 A.3d 775, 787 (N.J.
Super. Ct. App. Div. 2015)(citation omitted).
Here, Defendants have not only failed to produce a written
agreement between Mr. Fortuna and A Plus, but they have failed
to present sufficient evidence to the Court regarding the terms
of any oral agreement.

Mr. Fortuna observed Mark Lichter,

President of A Plus, “moving product, doing setup” and “moving
guys around,” and some of Mr. Lichter’s employees using a torch,
but beyond that, there is no evidence in the record of the terms
of any written or oral contract between the parties involving
the installation of the roof. (Fortuna Dep. at 249: 5-25.)

The

Court further agrees with A Plus that Defendants have failed to
14

identify with any particular definiteness any contractual terms
breached by A Plus. (A Plus Br. at 2.)

Defendants have

therefore failed to raise a genuine dispute of material fact; as
a result, the Court grants summary judgment on Third-Party
Plaintiffs’ breach of contract claim against A Plus.
2. Negligence
Next, A Plus argues that it did not breach a duty owed to
Defendants because they have provided no basis that A Plus or
its President, Mr. Lichter, acted negligently in any of the
installation duties on this project. (A Plus Br. at 3-4.)

As a

result, A Plus argues that no factual or expert discovery
provides any substantive basis for negligent workmanship against
A Plus.

The Court agrees.

Under New Jersey law, the four elements essential for the
existence of a cause of action in negligence are: (1) a duty of
care owed by defendant to plaintiff; (2) a breach of that duty
by defendant; and (3) actual and proximate causation, and (4)
damages. Jersey Cent. Power & Light Co. v. Melcar Util. Co., 59
A.2d 561, 594 (N.J. 2013); Endre v. Arnold, 692 A.2d 97, 99
(N.J. Super. Ct. App. Div. 1997).

“To act non-negligently is to

take reasonable precautions to prevent the occurrence of
foreseeable harm to others.” Fernandes v. DAR Dev. Corp., 119
A.3d 878, 886 (N.J. 2015) (citations omitted).

The burden of

proving such negligence is on the plaintiff; negligence cannot
15

be presumed. See Dawson v. Bunker Hill Plaza Assocs., 673 A.2d
847, 853 (N.J. Super. Ct. App. Div. 1996).

Though a plaintiff

need not present proof to a certainty, “evidence must be such as
to justify an inference of probability as distinguished from the
mere possibility of negligence on the defendant's part.” Sanders
v. Sheraton Hotels & Resorts, No. 11-5489, 2014 WL 60011, at *3
(D.N.J. Jan. 7, 2014)(citations omitted).
Here, there is no evidence in the record that A Plus failed
to exercise reasonable care normally possessed by members of the
roofing profession.

Defendants fail to raise a genuine dispute

regarding any instance of Mr. Lichter or any worker in his crew
acting negligently.

Mr. Fortuna admitted that he never saw Mr.

Lichter use a torch while installing the polyglass material, and
while he noted that he observed some of the workers using the
torch, he does not explain how they failed to exercise
reasonable care beyond a general “concern[]” regarding “who was
in charge of directing” them. (Fortuna Dep. 249: 5-8, 22-25).
These types of conclusory statements are insufficient for the
purposes of summary judgment.
Moreover, Defendants fail to raise any genuine dispute of
material fact on vicarious liability because they have failed to
put forth evidence in the record indicating whether the A Plus
workers were employees or independent contractors. See Carter v.
Reynolds, 815 A.2d 460, 463 (N.J. 2003) (explaining that if no
16

master-servant relationship exists, no further inquiry needs to
take place in the vicarious liability analysis); see also Bahrle
v. Exxon Corp., 678 A.2d 225, 321 (N.J. 1996) (“[o]rdinarily, an
employer that hires an independent contractor is not liable for
the negligent acts of the contractor in the performance of the
contract”) (citations omitted).

Furthermore, there is no

indication in the record regarding the level of control that A
Plus had over its workers. See Restatement (Second) of Agency §
220 (1958).

Defendants have therefore failed to raise a genuine

dispute of material fact on their negligence claim; thus,
summary judgment is granted to A Plus.
CONCLUSION
The Third-Party Complaints against Polyglass USA and A Plus
Roofing will be dismissed; and Polyglass’ application for
sanctions will be denied without prejudice.

An accompanying

Order will be entered.

January 31, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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