STAGS LEAP RANCH DEVELOPMENT, LLC v. SEVENSON ENVIRONMENTAL SERVICES, INC. et al

Filing 52

OPINION. Signed by Judge Renee Marie Bumb on 9/21/2018. (tf, )

[Dkt. Nos. 33, 35]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

STAGS LEAP RANCH DEVELOPMENT,
LLC,
Plaintiff,

Civil No. 17-2863 (RMB/AMD)
v.

OPINION

SEVENSON ENVIRONMENTAL
SERVICES, INC., et al.,
Defendants.

APPEARANCES:
LIPMAN, ANTONELLI, BATT, GILSON, ROTHMAN & CAPASSO
By: Steven L. Rothman, Esq.; Jane B. Capasso, Esq.
110 N. Sixth Street, P.O. Box 729
Vineland, New Jersey 08362
Counsel for Stags Leap Ranch Development, LLC
MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP
By: Scott A. Levin, Esq.; Jeffrey L. Petit, Esq.
1300 Mount Kemble Avenue, P.O. Box 2075
Morristown, New Jersey 07962
Counsel for Sevenson Environmental Services, Inc.
BLANEY & KARAVAN, P.C.
By: Frank Guaracini, Esq.
2123 Dune Drive, Suite 11
Avalon, New Jersey 08202
Counsel for Borough of Stone Harbor

BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the filing of a
motion for summary judgment by Defendant Sevenson Environmental
Services, Inc. (“Defendant” or “Sevenson”) seeking dismissal of
the above-captioned matter in its entirety, and a cross-motion
for partial summary judgment by Plaintiff Stags Leap Ranch
Development, LLC (“Plaintiff” or “Stags Leap”).

For the reasons

set forth below, the Court will deny both Defendant’s motion and
Plaintiff’s cross-motion.

I.

FACTUAL AND PROCEDURAL HISTORY
On February 15, 2017, the parties entered into a Service

Purchase Order (the “Agreement”), which states that Stags Leap
“shall accept dredge spoils from the Stone Harbor project that
meet NJAC 7:26D criteria for residential material” at a price of
$9.50 per ton. (Plaintiff’s Response to Local Civil Rule 56.1
Statement on Behalf of Defendant ¶¶ 2-3 (“Pl’s. Resp.”)[Dkt. No.
39]).

The Agreement also states, in relevant part, that “[n]o

waiver or change by [Sevenson] of any term hereof shall be
effective unless in writing subscribed by an officer of
[Sevenson].” (Id. ¶ 19).
Between February 16, 2017 and March 6, 2017, Defendant
delivered approximately 19,498.84 tons of dredge material, all
of which was accepted by Plaintiff. Defendant paid Plaintiff a

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total of $185,239.01, representing payment at a price of $9.50
per ton for all dredge material.

(Id. ¶ 4).

Although Defendant paid the price set forth in the initial
Agreement, Plaintiff claims that the parties modified the
Agreement, on February 27, 2017, to reflect an increased price
for the disposal of dredge materials after tests allegedly
indicated that Defendant’s earlier deliveries failed to meet
NJDEP “clean fill” residential soil samples. On March 24, 2017,
Plaintiff filed a complaint against Defendant based upon
Sevenson’s refusal to pay the increased price in the allegedly
modified contract.

The matter was removed to this Court on

April 26, 2017, pursuant to 28 U.S.C. §§ 1332 and 1141
(diversity of citizenship).

II.

SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted 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.”
Civ. P. 56(a).

Fed. R.

A fact is “material” only if it might impact the

“outcome of the suit under the governing law.”

Gonzalez v.

Sec’y of Dept of Homeland Sec., 678 F.3d 254, 261 (3d Cir.
2012).

A dispute is “genuine” if the evidence would allow a

reasonable jury to find for the nonmoving party. Id.

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In determining the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable inferences and doubts should be resolved in favor of
the nonmoving party.

Melrose, Inc. v. City of Pittsburgh, 613

F.3d 380, 387 (3d Cir. 2010).

However, a mere “scintilla of

evidence,” without more, will not give rise to a genuine dispute
for trial.
2001).

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

Moreover, a court need not adopt the version of facts

asserted by the nonmoving party if those facts are “utterly
discredited by the record [so] that no reasonable jury” could
believe them.

Scott v. Harris, 550 U.S. 372, 380 (2007).

In

the face of such evidence, summary judgment is still appropriate
“where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party.”

Walsh v.

Krantz, 386 F. App’x 334, 338 (3d Cir. 2010).
The movant has the initial burden of showing through the
pleadings, depositions, answers to interrogatories, admissions
on file, and any affidavits “that the non-movant has failed to
establish one or more essential elements of its case.”
Connection Training Servs. v. City of Phila., 358 F. App’x 315,
318 (3d Cir. 2009).

“If the moving party meets its burden, the

burden then shifts to the non-movant to establish that summary
judgment is inappropriate.”

Id.

In the face of a properly

supported motion for summary judgment, the nonmovant’s burden is
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rigorous: he “must point to concrete evidence in the record”;
mere allegations, conclusions, conjecture, and speculation will
not defeat summary judgment.

Orsatti v. New Jersey State

Police, 71 F.3d 480, 484 (3d Cir. 1995); accord. Jackson v.
Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC. v.
Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009)
(“[S]peculation and conjecture may not defeat summary
judgment.”).

However, “the court need only determine if the

nonmoving party can produce admissible evidence regarding a
disputed issue of material fact at trial”; the evidence does not
need to be in admissible form at the time of summary judgment.
FOP v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016).

III. ANALYSIS
Sevenson moves for summary judgment, arguing (1) that the
parties could not, as a matter of law, consent to an oral
modification of the initial Agreement, and (2) that, under the
UCC, Plaintiff could not modify the Agreement due to
nonconformity after already accepting the dredge materials.

The

Court finds both of Defendant’s legal arguments unpersuasive.1

1

The Court will not address Defendant’s unsupported argument

under the UCC, as Defendant has failed to provide sufficient
legal basis, or facts, to establish that Defendant, Plaintiff,
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Contrary to Defendant’s assertion, under common law,
parties may waive a “no oral modification” clause by entering
into an otherwise enforceable oral agreement. See McGrath v.
Poppleton, 550 F.Supp.2d 564, 571 (D.N.J. 2008)(citing Williston
on Contracts § 29:42); China Falcon Flying Ltd. v. Dassault
Falcon Jet Corp., No. 15-6210, 2018 WL 2135013, at *12 (D.N.J.
May 9, 2018).2

Therefore, the question is not whether the

parties could orally modify the Agreement, but rather if they
actually did so.
In Plaintiff’s Cross-Motion for Summary Judgment, Stags
Leap asks the Court to find (1) that the Agreement was modified
by the parties to reflect an increased price for dredge
materials, and (2) that Defendant did not deliver any dredge
materials that met NJDEP residential soil standards.

However,

Defendant denies that it consented to the modified Agreement and

and the dredge materials meet the definitions of “seller,”
“buyer,” and “goods,” respectively, under the UCC.
2

Defendant’s reliance on Provident Bank v. Antonucci, 2014 WL

7051781, at *6 (D.N.J., Dec. 12 2014) is misplaced because
Provident Bank involves unique issues regarding the ability to
relinquish enforcement remedies in a commercial loan contract
under the New Jersey Statute of Frauds.

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disputes Plaintiff’s allegation that Defendant delivered
“contaminated” dredge materials to Stags Leap (Def.’s Reply, at
1-4 [Dkt. No. 49).
After carefully reviewing the conflicting accounts in the
record, the Court finds that there are genuine disputes of
material fact regarding the enforceability of the alleged
modification, the terms of the alleged modification, and the
quality of the dredge materials.

Accordingly, these issues of

material fact preclude summary judgment.

IV.

CONCLUSION
For the reasons set forth above, Defendant’s Motion for

Summary Judgment and Plaintiff’s Cross-Motion for Summary
Judgment will be denied without prejudice.

An appropriate Order

shall issue on this date.

DATED: September 21, 2018

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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