TURNER ENVIROLOGIC, INC. v. PSEG FOSSIL LLC
OPINION. Signed by Judge John Michael Vazquez on 11/22/17. (cm, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Turner Envirologic, Inc.,
Civil Action No. 12-5948 (JMV) (JBC)
PSE&G Fossil, LLC et a!,
John Michael Vazguez, U.S.D.J.
This case comes before the court on PSE&G Fossil LLC and PSE&G New Haven, LLC’s
(collectively, “PSE&G” or “Defendants”) motion for partial summary judgment. The underlying
dispute between Turner Envirologic, Inc. (“Plaintiff’ or “Turner”) concerns equipment
Defendants purchased from Plaintiffs for locations in Kearny, New Jersey and New Haven,
Connecticut. The Court reviewed the parties’ submissions, and decided the motion without oral
argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth
below, Defendant’s motion is DENIED.
Background & Procedural History
The relevant facts have been taken from the parties’ respective statements of material
fact, the amended complaint, and declarations annexed to various submissions. D.E. 20, 112-1,
116.’ The issues in this case stem from two agreements between the parties: one signed on July
23, 2010, whereby Turner agreed to “design, fabricate and deliver” equipment to PSE&G’s
‘Plaintiffs Statement of Undisputed Material Facts will be referred to as Plaintiffs $OMF.
Defendant’s Statement of Material Facts will be referred to as Defendant’s SOMF.
Kearny location (“Kearny Agreement”) and the second, also signed on July 23, 2010, whereby
Turner agreed to deliver equipment to PSE&G’s New Haven location (“New Haven
Agreement”). Defendant’s SOMF at ¶1, 7, D.E. 112-4, Exs. 1 & 2 to the Declaration of
Thomas M. McNulty Submitted in Support of Defendant’s Motion for Partial Summary
Judgment (hereinafter “McNulty Decl.”). Both agreements contained clauses concerning
liquidated damages should the equipment not be delivered on time, and both required Turner to
procure professional liability insurance with a minimum limit of $5,000,000. Defendant’s
SOMF atJJ3, 9, 13.
The purchase price in the Kearny Agreement was $8,129,885, and $7,467,574 in the New
Haven Agreement, for a combined price of $15,597,495 (excluding other fees and additional
purchases). See Ex. 1 & 2 to the McNulty DecI. Article 37.3 of both the Kearny and New
Haven Agreements provide that if the equipment and materials were not delivered on time,
Turner was to pay PSE&G $3,000.00 per day in liquidated damages. Id. Listed in both
Agreements, were “Early Delivery” and a “Late Delivery” dates by which Turner was to deliver
equipment to the P$E&G locations. Id. On August 25, 2011, PSE&G notified Turner that both
the Kearny and New Haven sites were being shut down because of an impending storm,
Hurricane Irene, which ultimately caused the Governor of New Jersey to declare a state of
emergency. See Ex. E to the Declaration of Thomas Turner in Support of Plaintiffs Response to
Partial Summary Judgment (hereinafter “Turner Decl.”), at ¶J16-17.
Plaintiff stipulated that it delivered the equipment to the Kearny location between
October 12 and October 31, 2011, although the equipment was to be delivered by August 25,
2011 pursuant to the Kearny Agreement. See Exs. 1-3 to McNulty Decl. Plaintiff stipulated that
it delivered the equipment to the New Haven location between September 12 and November 11,
2011, although it was to be delivered by August 15, 2011 under the New Haven Agreement. Id.
Turner has also admitted that it only procured one insurance policy for $5,000,000, rather than
two (one for each agreement, for a combined $10,000,000). Defendant’s SOMF at ¶15, Ex. 5 to
McNulty DecI. However, Plaintiff has not admitted that the equipment was delivered “late,”
rather they contend that the delivery dates were changed at the agreement of both parties after
P$E&G triggered the force majeure clauses in the Agreements. See Turner Decl. at ¶4, 7.
Plaintiff alleges that as of the filing of the Complaint, PSE&G owes $3,252,239.38 under both
agreements ($1,990,037.26 for the Kearny equipment and $1,262,202.12 for the New Haven
equipment). See D.E. 20, First Amended Complaint and Jury Demand, (hereinafter “Amended
Complaint” or “Compl.”) at ¶16, 28.
Plaintiff filed its original Complaint on September 21, 2012. D.E. 1. On March 18,
2013, Turner filed an Amended Complaint, setting forth several causes of action, including
breach of contract, goods sold, open account, and unjust enrichment. D.E. 20. PSE&G Fossil
LLC answered, asserting affirmative defenses and counterclaims on April 12, 2013. D.E. 22.
PSE&G New Haven LLC filed their own Answer asserting affirmative defenses and
counterclaims on the same day. D.E. 23. Plaintiff answered all counterclaims on May 3, 2013.
D.E. 27, 28. In their amended Answer, filed February 25, 2014, PSE&G Fossil LLC asserted
counterclaims for breach of contract, breach of the implied covenant of good faith and fair
dealing, breach of express warranty, breach of the implied warranty of merchantablity, breach of
the implied warranty of fitness for a particular purpose, and professional negligence. D.E. 40.
Turner filed an Answer to PSE&G’s counterclaim on August 1,2015. D.E. 74. The parties
stipulated on February 17, 2016 to the dismissal of Plaintiffs professional negligence claims
against Defendants. See D. E. 92.
Defendants filed the instant motion on January 20, 2017. D.E. 112. Turner filed its
opposition on February 10, 2017. D.E. 114. Defendants replied on February 17, 2017. D.E.
117. After reviewing the briefs submitted by the parties, the Court requested additional briefing
on the issue of Defendants’ performance under the contracts. D.E. 124. The parties submitted
letter briefs in response on November 13, 2017. D.E. 126, 127.
Standard of Review
Summary judgment is proper where the moving party “shows that there is no genuine
dispute as to any material fact,” and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999). A fact in dispute is
material when it “might affect the outcome of the suit under the governing law” and is genuine
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or
unnecessary facts will not preclude granting a motion for summary judgment. Id. “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 nonmoving party’s
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.” Marino
Indus. Crating Co., 358 f.3d 241, 247 (3d Cir. 2004) (quoting Anderson. 477 U.S. at 255)). A
court’s role in deciding a motion for summary judgment is not to evaluate the evidence and
decide the truth of the matter but rather “to determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Cetotex
Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its
motion, the burden shifts to the nonmoving party to “go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks
omitted). To withstand a properly supported motion for summary judgment, the nonmoving
party must identify specific facts and affirmative evidence that contradict the moving party.
Anderson, 477 U.S. at 250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not
significantly probative,’ the court may grant summary judgment.” Messa v. Omaha Prop. &
Cas. Ins. Co., 122 F. Supp. 2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.”
Celotex Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the
evidence,” however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-5 1.
Neither party contests that New Jersey law governs their competing breach of contract
claims. See Brief in Support of P$E&G Fossil LLC and P5E&G New Haven LLC’s Motion for
Partial Summary Judgment, (hereinafter “Defendant’s Brief’) at 7; Brief in Support of Turner
Envirologic, Inc.’s Response to Motion for Partial Summary Judgment, (hereinafter “Opposition
Brief’) at 4. To state a claim for breach of contract in New Jersey, the non-breaching party must
show: (1) a valid contract between plaintiff and defendant; (2) defendant’s breach; (3) plaintiff
performed his obligations; and (4) plaintiff was damaged as a result of defendant’s breach. See
Goen Technologies Corp v. NBTY, Inc., 2007 WL 2595753, at *2 (D.N.J. Sep. 4, 2007) (citing
New Jersey law); Webb v. Krudys, 2017 WL 3397029, at *3 (D.N.J. Aug. 8, 2017) (same, citing
frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007)); Sync Labs LLC v. fitsion
Manufactitring, 2016 WL 6802479, at *9 (D.N.J. Nov. 16, 2016) (same). As noted, in its
Amended Complaint, Plaintiff asserts claims for breach of contract. Moreover, in Turner’s
answer to P$E&G’s counterclaim, its Thirteenth Affirmative Defense is that “PSE&G’s claims
are barred or diminished based upon its breach of the subject contractual agreements.” See D.E.
As indicated, a party’s performance under a contract is an element necessary to establish
that other side breached. Thus, while Defendants made the current motion concerning Plaintiffs
breach of certain terms of the contract, Defendants did not make a motion for summary judgment
on Plaintiffs breach of contract claims. In fact, Defendants did not address the issue at all.
As a result, the Court requested additional briefing on this issue, and in Defendant’s letter
brief, they cite to three cases: CPS Medlianagement LLC v. Bergen Regional Medical Center,
L.P., Vasaturo Bros., Inc. v. Alimenta Trading-USA, LLC, and Barefoot v. We//ness Publishing.
D.E. 127, 940 F.Supp.2d 141 (D.N.J. 2013); 2011 WL 3022440 (D. N.J. July 22, 2011); 2009
WL 4143110 (D.N.J. Nov. 17, 2009). All three are distinguishable.
Notably, while the court in CPS did grant plaintiffs motion for summary judgment on
the breach of contract claim, it also stayed entry ofjudgrnent on that claim pending resolution of
the competing claim made by defendants. See CPS, 940 f.Supp.2d at 153. Additionally, the
court in CPS found there was no conflicting evidence on the issue of the invoices, unlike the
competing evidence presented by the parties here. Vasatitro Bros. dealt with severable
installment contracts, which is a fundamentally different agreement than the ones at bar, and in
Barefoot, summary judgment was denied on all counts but one, where defendant had not opposed
plaintiffs motion. See Vasaturo, 2011 WL 3022440, at *3, and Barefoot, 2009 WL 4143110, at
Thus, Defendants’ motion fails because they have not established a necessary element:
that they have performed under the agreements. In fact, the Amended Complaint alleges that
Defendants breached of the contracts. Thus, the Court denies their motion for summary
For the reasons stated above, Defendant’s motion for partial summary judgment is
DENIED. An appropriate Order accompanies this Opinion.
Dated: November 22, 2017
John Michael VazqueUS..J.
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