LONGO v. ENVIRONMENTAL PROTECTION & IMPROVEMENT COMPANY, INC.
OPINION. Signed by Chief Judge Jose L. Linares on 6/5/17. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT J. LONGO,
Civil Action No. 2:16-cv-091 14 (JLL) (JAD)
ENVIRONMENTAL PROTECTION &
IMPROVEMENT COMPANY, INC.,
LINARES, District Judge.
Before the Court is Defendant Enviromental Protection & Improvement Company, Inc.,
(hereinafier “Defendant” or “EPIC”)’s partial motion to dismiss (ECF No. 11, “Def.’s Mot.
Dismiss”) Plaintiff Robert J. Longo (hereinafier “Plaintiff’ or “Longo”)’s Complaint (ECF No.
1, “Cornpl.”) pursuant to federal Rule of Civil Procedure 12(b)(6) and Plaintiffs motion for a
preliminary injunction (ECF No. 12, “Pl.’s Mot. Prelim. Inj.”) against Defendant pursuant to
federal Rule of Civil Procedure 65. In accordance with Federal Rule of Civil Procedure 78, the
Court has considered the submissions of the parties and decides this matter without oral
For the reasons set forth below, the Court grants in part and denies in part
Defendant’s partial motion to dismiss and denies Plaintiffs motion for a preliminary injunction.
A. Factual Background
This matter revolves around a series of agreements’ connected to the purchase and sale of
EPIC and its ownership history.
In or around 1971, Plaintiff fonned R.J. Longo Construction
Company, Inc., (“RJLCC”). Compi.
6. RJLCC was formed for the purpose of performing
governmental contracts pertaining to sewage and water distribution, transportation and treatment
and began doing business as EPIC in or around 1989. Id.
7. EPIC and the Passaic Valley
Sewerage Commissioners (“PVSC”) entered into a services agreement (“EPIC/PVSC Services
Agreement”) in 1990. Id.
In or around 1993, according to Longo’s Complaint, the PVSC
published a Request for Qualifications pursuant to which the PVSC solicited statements of
qualifications from companies with the necessary resources to provide comprehensive sludge
management services for the PVSC. Id.
10. As a result of said solicitation, in August 1996, the
PVSC entered into a services agreement with Wheelabrator Clean Water New Jersey, Inc.
(“WCWNJ”) titled “Service Agreement: Comprehensive Sludge Management Services between
Passaic Valley Sewerage Commission and Wheelabrator Clean Water New Jersey, Inc.” (“PV$C
Services Agreement”). Id.
11, Ex. A.
The EPIC/PV$C Services Agreement terminated in
1996 immediately prior to the effective date of the PVSC Services Agreement2. Id.
The parties agree that New Jersey law governs the agreements relevant to this action. See Compi. ¶ 8; see also
Def.’s Mot Dismiss 5.
Throughout the duration of the PVSC Services Agreement, the following parties amended it on the following
• August 10, 2000: WCWNJ and PVSC entered into an amendment to the PVSC Services
Agreement (“First PVSC Services Agreement Amendment”). See Compl., Ix. A-l.
December 11, 2002: Synagro-WCWNJ, Inc. and PVSC entered into a second amendment to the
agreement (“Second PVSC Services Agreement Amendment”). See Compi., Ix. A-2.
June 20, 2006: Synagro-WCWNJ. LLC (formerly Svnagro-WCWNJ, Inc. and Wheelabrator
Clean Water New Jersey, Inc.) and PVSC entered into a third amendment to the aforementioned
agreement (“Third PVSC Services Agreement Amendment”). See Compi., Ix. A-3.
While still owned by Longo, EPIC filed suit in 1994 against the PVSC in the Superior Court
of New Jersey, Essex County (“PVSC Services Agreement Litigation”); the suit was later
amended to include, among others, WCWNJ as a defendant. Id.
The matter was later
removed by certain defendants to the United States District Court for the District of New Jersey
and a judgment was entered by the court in or around March 1998. Id.
In 1997, Compost America Holding Company, Inc. (“CAHC”) purchased all issued and
outstanding shares of EPIC corporate stock pursuant to stock purchase agreements; EPIC
continued to do business under the same name afier the sale.
Def.’s Mot. Dismiss 4; Compi.
In conjunction with the sale of EPIC to CAHC, Longo asserts that the EPIC/CAHC
Stock Purchase Agreements omitted from the transaction certain assets including various
litigations by and against EPIC (“Excluded Litigation”4) and assigned to Longo all of EPIC’s
right title and interest with respect to the Excluded Litigation. Id.
During a pending appeal in the aforementioned matter, the claims asserted by EPIC were
resolved by a negotiated settlement by and between the then-remaining parties and the parties
ultimately settled the PVSC Services Agreement Litigation in or around February 1999. Id.
The settlement allegedly resulted in four agreements termed the “1999 Agreements”5 by
Among the parties, EPIC, Wheelabrator Water Technologies, Inc., and
August 11, 2016: PVSC and Synagro WCWNJ, LLC entered into a fourth amendment (“Fourth
PVSC Services Agreement Amendment”)2. See Compi.. Ex. A-4.
Longo contends that “most recently, pursuant to the Fourth PVSC Services Agreement Amendment, the PVSC
Services Agreement was renewed and extended by the PVSC for an initial period of five (5) years from August 31,
2016 to August 31, 2021; subject to PVSC’s sole option to further extend the PVSC Services Agreement for three
(3) additional terms of five (5) years (i.e., potentially through August 31, 2036).” Compl. ¶ 14. EPIC sets forth that
the Fourth Amendment “was entered into after the twenty (20) year term of the PVSC Service Agreement expired.”
Def.’s Mot. Dismiss 7.
The parties both set forth different dates in 1997 of which they purport that the sale of the stocks took place. See
Def.’s Mot. Dismiss 4; see also Compl. ¶ 1$.
According to Plaintiff, “potentially relevant to this action, the Excluded Litigation included, among others the
Settled PVSC Services Agreement.” Compl. ¶ 20.
According to Longo, the “1999 Agreements” include, the Articles of Agreement, Transportation Services
Agreement, Earn Out Agreement and Security Agreement. Compl. ¶ 23 (a)- (d).
WCWNJ entered into the Articles of Agreement (“Articles of Agreement”); EPIC and WCWNJ
entered into the
Sludge Transportation Services Agreement (“Transportation Services
(b); Def.’s Mot. Dismiss 9.
The Transportation Services
Agreement set forth that EPIC would function as a subcontractor of WCWNJ, which was
subsequently bought by Synagro Technologies, Inc. (“Synagro”)(”Synagro-WCWNJ”), to
provide transportation and related services for the PVSC on the terms and conditions contained
in the PVSC Services Agreement. Compl.
(5); Def.’s Mot Dismiss 9.
The parties dispute
whether two additional agreements, the Earn Out Agreement (“Earn Out Agreement”) and the
Security Agreement (“Security Agreement”), both central to Longo’s allegations, occurred as
part of the settlement of the PVSC/Longo Litigation.
Mot. Dismiss 9-1 1.
(d); see also Def.’s
Longo sets forth that the Earn Out Agreement between Longo and EPIC
was entered into in February 1999 while EPIC contends that the agreement was entered into after
March 12, 1999. Compi.
(c); Def.’s Mot. Dismiss 10. Longo also asserts that the “terms of
the Earn Out Agreement and the Security Agreement are inextricably interconnected and co
terminus with the terms[sJ of the Article of Agreement and/or the Transportation Services
Under the Earn Out Agreement, Longo purports that:
Pursuant to the Articles of Agreement and the Transportation Services Agreement,
EPIC agreed, as a subcontractor of WCWNJ, to provide those transportation and
related services for the PVSC on the terms and conditions contained in the Articles
of Agreement and the Transportation Services Agreement. EPIC, in turn, is
required, by the Earn Out Agreement to pay to Longo all or a portion of the
amounts paid to EPIC by WCWNJ on account of the provision of transportation and
related services to the PVSC under the Articles of Agreement and the
Transportation Services Agreement.
Longo alleges that the “Security Agreement between Longo and EPIC dated on
February 18, 1999
pursuant to which EPIC (which, pursuant to the EPIC/CAHC Stock
Purchase Agreements, was then wholly-owned by CAHC), granted, assigned, pledged,
transferred and delivered to Longo a valid, first lien on and security interest in all of EPIC’s
right, title and interest in and to certain collateral, including, but in no way limited to: (a) the
Articles of Agreement, and (b) the Transportation Services Agreement (collectively and as
defined in the Security Agreement, the ‘Collateral’).” Id.
(d), Ex. E.
Thereafler, pursuant to a stock purchase agreement, the then owners of EPIC, CAHC, sold all
of EPIC’s issued and outstanding shares of corporate stock to Synagro. Accordingly, by the end
of 2000, Synagro owned all of the issued and outstanding shares of both EPIC and WCWNJ,
rendering Synagro the complete owner of both entities. Id.
¶J 45, 46.
As a result of WCWNJ’s
new ownership, the corporate name was changed to Synagro WCWNJ. Id.
In August and September of 2016, Longo asserts that various corporate officers of Synagro
and EPIC communicated to Longo that the PVSC Services Agreement (as amended by the First,
Second and Third PVSC Services Agreement Amendments) would, pursuant to its terms, be
expiring as of August 31, 2016. Id.
him that Synagro
Longo also contends that it was also communicated to
WCWNJ had entered into a new contract with PV$C that was materially
different from and in replacement of the PVSC Services Agreement, and would commence
immediately afler the expiration of the PVSC Services Agreement (as amended) on September 1,
2016 and that as a result of the foregoing, the last payment that EPIC would be making to Longo
under the Earn Out Agreement would be a payment for any Earn Out consideration due from
EPIC to Longo for August 2016. Id.
Longo contends that on September 15, 2016, EPIC
transmitted a check made payable to Longo bearing the legend “final payment under the Earn
Out Agreement.” Id
According to Longo’s Complaint, on or around October 21, 2016,
outside counsel to Synagro sent a correspondence to Longo delineating the alleged reasons why
the Earn Out Agreement was no longer enforceable by Longo. Id.
Longo asserts that the
letter stated that “Synagro is confident that it owes you no money under the Earn Out Agreement
and that it was an oversight to have paid you under this agreement for some years.” Id.
Furthermore, Longo contends that the aforementioned letter ignores the terms of the 1999
Agreements and the PVSC Services Agreement as well as more than fifleen years of its course of
86. Longo alleges, pursuant to Section 7 of the Earn Out Agreement, on
November 30, 2016 he issued a formal demand for access to EPIC’s books and records for such
110. And, Longo claims that under Section 6 of the Security Agreement, he has
the right to inspect and duplicate the books and records of EPIC, including, but not limited to
portions pertaining to receivables. Id.
B. Procedural History
Longo filed the instant Complaint on December 9, 2016 alleging the following eleven6
causes of action: Accounting and Disgorgement; Breach of Contract; Breach of the Implied
Covenant of Good Faith and Fair Dealing; Conversion and Misappropriation; Unjust
Enrichment; Malicious and Tortious Interference with Prospective Economic Advantage;
Negligent Misrepresentation; Declaratory Relief; Indemnity; Foreclosure; and Mandatory
Injunctive Relief See Compi.
On February 6, 2017, EPIC filed a motion seeking to dismiss the following five of the eleven
counts brought by Longo:
Misappropriation; (3) Malicious and Tortious Interference with Prospective Economic
Advantage; (4) Negligent Misrepresentation and (5) Unjust Enrichment. Def’s Mot. Dismiss 14
On March 20, 2017, Longo filed an opposition to EPIC’s motion to dismiss (ECF No. 19,
Plaintiffs Complaint sets forth eleven causes of action however Count II and Count VIII are both repeated and
therefore the claims are numbered Counts I IX as opposed to Counts I XI. Therefore, the Court refers to
Plaintiffs claims by name and also as numbered in Defendant’s motion to dismiss.
Opp’n to Def.’s Mot. Dismiss”). EPIC then filed a reply to the response to the motion to
dismiss (ECF No. 20, “Def’s Reply to Pl.’s Resp. to Def.’s Mot. Dismiss”) on March 27, 2017.
On february 10, 2017, Longo filed the motion for a preliminary injunction presently before
the Court against EPIC requesting that EPIC abide by the terms and conditions of the Earn Out
Agreement and/or the Security Agreement.
Thereafter, on March 20, 2017, EPIC filed an
opposition to Longo’s motion for a preliminary injunction (ECF No. 20, “Def.’s Opp’n to Pl.’s
Mot. Prelim. Inj.”). Longo then filed a response in further support of his motion requesting
injunctive relief on March 27, 2017 (ECF No. 22, “Pl.’s Resp. to Def.’s Opp’n to Pl.’s Mot.
A. Standard on a Motion to Dismiss
F or a complaint to survive a motion to dismiss under federal Rule of Civil Procedure 12
(b)(6), it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129 5. Ct. 1937, 1949 (2009) (quoting Bell Ati. Corp v.
Twombly, 550 U.S. 544, 570 (2007)). When assessing the sufficiency of a complaint the Court
must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable
inferences in favor of the non-moving party. See Phillips v. County ofAllegheny, 515 f.3d 224,
234 (3d Cir. 2008).
“Factual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. Furthermore, “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of further factual enhancement.”
Iqbal, 129 S. Ct. at 1949.
B. Standard for a Preliminary Injunction
Federal Rule of Civil Procedure 65 authorizes district courts to grant preliminary injunctions.
“A preliminary injunction is an extraordinary remedy that should only be granted if: (1) the
plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm to the
plaintiff; (3) granting the injunction will not result in irreparable harm to the defendant; and (4)
granting the injunction is in the public interest.” NutraSweet Co. v. Vit-Mar Enters., Inc., 176
F.3d 151, 153 (3d Cir. 1999) (citations omitted). A party seeking a preliminary injunction bears
the burden of satisfying each of the aforementioned factors. See Id.
To obtain a preliminary
injunction, the moving party must demonstrate both a likelihood of success and the probability of
if relief is not granted. Morton v. Beyer, $22 F. 2d 364, 367 (3d Cir.
19$7)(quotations omitted); see also In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137,
1143 (3d Cir. 19$2)(”[W]e cannot sustain a preliminary injunction ordered by the district court
where either or both of these prerequisites are absent.”)
As EPIC moves to dismiss five of Longo’s eleven claims and Longo seeks a preliminary
injunction requesting the parties be restored to the status qito ante, the Court will discuss each
parties’ motion below.
First, the Court will address EPIC’s partial motion to dismiss the
following of Longo’s claims: (1) Conversion and Misappropriation; (2) Malicious and Tortious
Interference with Prospective Economic Advantage; (3) Negligent Misrepresentation; (4)
Accounting and Disgorgement and (5) Unjust Enrichment. The Court will then assess Longo’s
request for injunctive relief. For the reasons that follow, EPIC’s partial motion to dismiss as to
Longo’s Conversion and Misappropriation, Malicious and Tortious Interference with Prospective
Economic Advantage, Negligent Misrepresentation and Accounting and Disgorgernent is granted
and denied as to Longo’s claim for Unjust Enrichment. As further discussed below, Longo’s
request for injunctive relief is denied.
A. EPIC’s Motion to Dismiss
EPIC moves to dismiss Longo’s claims for Conversion and Misappropriation, Malicious and
Tortious Interference with Prospective Economic Advantage, and Negligent Misrepresentation
alleging that the aforementioned tort claims are barred by the Economic Loss Doctrine and
secondly that the claims are insufficiently plead and therefore should not survive a 12(b)(6)
motion. Def.’s Mot. Dismiss 19, 23. The Court agrees with EPIC and finds that the Economic
Loss Doctrine bars Longo’s claims for Conversion and Misappropriation, Malicious and Tortious
Interference with Prospective Economic Advantage, and Negligent Misrepresentation. Since the
Court dismisses said claims on account of the Economic Loss Doctrine, the Court does not find it
necessary to address EPIC’s 12(b)(6) arguments against the abovernentioned allegations.
In regards to Longo’s claims for both Accounting and Disgorgement and Unjust Enrichment,
EPIC argues for their dismissal claiming that both fail to identify an independent, noncontractual basis in their support. Id. 30, 32.
For the reasons that follow, the Court dismisses
Longo’s Conversion and Misappropriation, Malicious and Tortious Interference with Prospective
Economic Advantage, Negligent Misrepresentation and, Accounting and Disgorgement claims
without prejudice and denies EPIC’s motion to dismiss Longo’s Unjust Enrichment claim. To the
extent the deficiencies in the Complaint may be cured by way of amendment, the aforementioned
claims are dismissed without prejudice.
1. Economic Loss Doctrine
EPIC contends that the Economic Loss Doctrine bars Longo’s claims for Conversion and
Misappropriation, Malicious and Tortious Interference with Prospective Economic Advantage,
and Negligent Misrepresentation arguing that the conduct alleged in each of Longo’s tort claims
is identical to the conduct alleged in the Breach of Contract claims and seeks the same monetary
See Def.’s Mot. Dismiss 19-23.
In opposition, Longo argues that the Federal Rules
explicitly set forth that a Plaintiff may plead in the alternative and “seek relief in the alternative.”
Pursuant to Federal Rule of Civil Procedure 8(d)(2) “[a] party may set out two or more
statements of a claim or defense alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if
any one of them is sufficient.” The Federal Rules also set forth under Rule 8(d)(3) a “party may
state as many separate claims or defenses as it has, regardless of consistency.” Longo argues that
consistent with the liberal notice standard of Federal Rule of Civil Procedure 8(a) permitting a
plaintiff “to seek relief in the alternative or of several different types” based upon a “short and
plain statement of a claim,” he is entitled to plead claims for Conversion and Misappropriation,
Malicious and Tortious Interference with Prospective Economic Advantage, and Negligent
Misrepresentation in the alternative.
In Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 581-82, 489 A. 2d 660,
673-74 (1985), the New Jersey Supreme Court first recognized the Economic Loss Doctrine.
Under New Jersey law, the Economic Loss Doctrine “prohibits parties from recovering in tort
economic losses to which their entitlement only flows from contract.” Ditquesne Light Co. v.
Westinghouse Elec. Co., 66 F.3d 604, 618 (3d Cir. 1995). “The Economic Loss Doctrine is
designed to place a check on limitless liability
contract and tort law.”
and establish clear boundaries between
Werwinski v. ford Motor Co., 286 F.3d 661, 680 (3d Cir. 2002).
furthermore, “whether a tort claim can be asserted alongside a breach of contract claim depends
on whether the tortious conduct is extrinsic to the contract between the parties.” State Capital
Title & Abstract Co. v. Business Serv., LLC, et aL, 646 F. Supp. 2d 668, 676 (D.N.J. 2009)(citing
Capital Flits Equity, LLC v. Prismatic Dev Corp., No. 07-32 1, 2009 U.S. Dist. LEXIS 54054,
2008 WL 278339, at *6 (D.N.J. July 16, 2008)(citation omitted)).
Although the New Jersey Supreme Court has not established whether the Economic Loss
Doctrine applies to prohibit fraud claims, New Jersey District Courts differentiate between
fraudulent performance claims and fraudulent inducement claims finding that New Jersey law
bars fraudulent performance claims when contractual remedies exist.
See, e.g., Gleason v.
Norwest Mortgage, Inc., 243 F.3d 130, 144 (3d Cir. 2001)(”The New Jersey District Courts still
hold that fraud claims not extrinsic to underlying contract claims are not maintainable as separate
causes of action.”); Umfoil Corp. v. Cheque Printers & Encoders, 622 F. Supp. 268, 271 (D.N.J.
1985); see also Vanguard Telecommunications, Inc. v. S. New England Tel. Co., 900 F.2d 645,
654 (3d Cir. 1990). As discussed below, the Court finds that Longo’s claims for Conversion and
Misappropriation, Malicious and Tortious Interference with Prospective Economic Advantage,
and Negligent Misrepresentation are barred by the Economic Loss Doctrine because Longo does
not demonstrate that he suffered any losses beyond the economic loss governed by the contract
a. Conversion and Misappropriation
Longo’s claim asserting Conversion and Misappropriation alleges that the Earn Out
Agreement requires that EPIC hold all amounts received by EPIC to which Longo is entitled
under the Earn Out Agreement in trust for the sole benefit of Longo and that all funds be
segregated from other funds of EPIC and delivered to Longo. Compi.
136, 137. Furthermore,
Longo contends that EPIC has failed to demonstrate that it is or has ever held all amounts due to
Longo under the Earn Out Agreement in a separate account solely for the benefit of Longo. Id.
As a direct and proximate result of EPIC’s actions and/or inactions, Longo claims that he
has suffered and will continue to suffer financial loss, damage and irreparable harm. Id.
EPIC moves to dismiss Longo’s Conversion and Misappropriation claim alleging that this tort
claim arises out of the same allegations as the breach of contract claim and seeks the same
monetary damages. Def’s Mot. Dismiss 20.
In opposition, Longo asserts that the Complaint
sets forth sufficient facts to sustain, under a breach of contract theory or, in the alternative, under
an equitable theory of Conversion and Misappropriation of trust funds and other property subject
to Longo’s security interest and rightfully belonging to Longo, and on account of the agreements
brokered by and between Longo and EPIC. Pl.’s Opp’n to Def.’s Mot. Dismiss 33.
As Longo provides that the Earn Out Agreement specifically requires EPIC “to hold any and
all amounts received by EPIC and due and owing to Longo under the Earn Out Agreement ‘in
trust for the benefit of Longo...,’ and that all such amounts ‘shall be segregated from other funds
of EPIC and shall be delivered by EPIC to Longo...
Pl.’s Opp’n to Def.’s Mot. Dismiss 34.
Longo asserts that EPIC either materially breached its obligations under the relevant agreements
or wrongfully caused all such ftinds to be converted and misappropriated by EPIC for its benefit
and at the expenses of Longo’s legitimate interests. Id. As demonstrated in Longo’s Complaint
and opposition to EPIC’s motion to dismiss, Longo’s Conversion and Misappropriation claim is
rooted in the same facts as his Breach of Contract claim because his Breach of Contract claim
asserts that by ceasing to make payments to Longo, EPIC breached the Earn Out Agreement.
Longo claims that the Earn Out Agreement required EPIC to
segregate any funds due and owing to Longo and to hold said funds in trust for the benefit of
Longo. Longo further asserts that EPIC’s alleged failure to segregate and maintain a trust fund
for the benefit of Longo violates Section 1 (f) of the Earn Out Agreement because the Security
Agreement provides EPIC must indemnify and hold Longo harmless from any claims and losses
under the Earn Out Agreement and/or the Security Agreement as well as pay on demand all
amounts incurred by Longo in connection with the exercise and enforcement of Longo’s rights
under the Earn Out Agreement and/or the Security Agreement. Id. 34. New Jersey courts have
expressly restricted application of the doctrine of conversion when it seeks to turn on a claim
based on breach of contract. Chicago Title Ins. Co. v. Ellis, 409 N.J. Super 444, 455, 978 A.2d
281 (App. Div. 2009).
Because Longo’s conversion claim asserts that EPIC failed to honor its
obligations under the Earn Out Agreement and Security Agreement, Longo’s claim is akin to his
Breach of Contract claim against EPIC and is therefore dismissed.
b. Malicious and Tortious
Longo claims that EPIC knowingly and maliciously interfered with his rights, entitlements
and benefits under the Earn Out Agreement and Security Agreement which was motivated by the
sole purpose of intentionally and tortiously depriving Longo of his justifiable and reasonable
expectation of his entitlements under said agreements, and due to EPIC’s interference, he
suffered financial injury.
EPIC purports that Longo’s allegations are duplicative
of the allegations in his Breach of Contract and Breach of Implied Good faith and fair Dealing
counts and seeks the same monetary relief
Def’s Mot. Dismiss 14
EPIC cites to Air Express Int’l v. Log-Net, Inc. and contends that when conduct in a tort claim is
entirely duplicative of that in a breach of contract claim, the Economic Loss Doctrine applies to
bar the claim. See No. 12-1732, 2016 U.S. Dist. LEXIS 129409, at *3 (D.N.J. Sep. 22, 2016).
Longo argues the Complaint pleads sufficient facts to demonstrate the viability, or at least in the
alternative, of Longos’s cause of action with regard to the tortious interference of EPIC with
Longo’s reasonable expectations under the Earn Out and Security Agreements.
Pl.’s Opp’n to
Def.’s Mot. Dismiss 35.
“Where the sole claim is that the contracting party did not perform as warranted, the
Economic Loss Doctrine may bar a fraud-based claim.”
Freedom Waste Solutions, Inc. v.
Family Dollar, No. 15-4756 2015 U.S. Dist. LEXIS 139630 (D.N.J. Oct. 14, 2015) (citing
Alloway v. General Marine Idtts., L.P. 149 N.J. 620, 628 (1997)). Longo fails to allege any
conduct on the part of EPIC that is intrinsic on the performance of the contract. Further, the only
recourse for relief of Longo’s claim is through contract remedies as Longo’s Complaint claims
that “the interference by Defendant EPIC with Plaintiffs rights, entitlements and benefits under
the Earn Out Agreement and the Security Agreement” caused him to sustain economic hardship.
147, 148. Since the New Jersey Economic Loss Doctrine prohibits relief on these
grounds, the Court dismisses Longo’s claim alleging Malicious and Tortious Interference with
Prospective Economic Advantage without prejudice.
c. Negligent Misrepresentation
In his Complaint, Longo purports that:
The false, inaccurate and/or misleading representations of material fact made in
connection with Defendant EPIC’s continuing enforceability of and perfonriance
under the 1999 Agreements, including the Earn Out Agreement and the Security
Agreement, were made negligently by Defendant EPIC and its agents. Plaintiff
reasonably and in good faith relied upon the materially false and misleading
representations and other non-disclosures and/or omissions of material fact made
by Defendant EPIC and Defendant EPIC’s agents in connection with Defendant
EPIC’s performance or non-performance under the Earn Out Agreement and the
Security Agreement, and thereafter, Plaintiffs enforcement of his rights under the
Earn Out Agreement and the Security Agreement.
150, 151. As a direct and proximate result of the alleged misrepresentations, Longo
claims that he has been caused to suffer and in the future will continue to suffer financial loss
and irreparable harm. Id.
In moving to dismiss Longo’s negligent misrepresentation
claim, EPIC relies on Int’l Minerals & Mm. Corp. Citicorp N. Am., Inc., a New Jersey District
Court case which dismissed a tort claim based on the lack of duty owed to the plaintiff, reasoning
that “[i]t has long been the law that remedies in tort relating to a breach of contract may not be
maintained in addition to those established under the contract itself in the absence of any
independent duty owed by the breaching party to the plaintiff.” 736 F. Supp. 587, 597 (D.N.J.
1990). In light of the foregoing, EPIC further argues that Longo has not alleged a relationship
between the parties or the existence of any duty apart from the alleged 1999 Agreements,
Security Agreement and Earn Out Agreement.
The Court agrees with EPIC and finds that the
Complaint fails to set forth any conduct on the part of EPIC extrinsic to the contract rendering
the Economic Loss Doctrine inapplicable and dismisses this count without prejudice.
d. Accounting and Disgorgement
Longo’s complaint sets forth “Defendant EPIC owes Plaintiff all or portion of funds received
by EPIC from WCWNJ or Synagro-WCWNJ under and on account of the Articles of Agreement
and the Transportation Services Agreement, which amounts were to have been held in trust for
the sole benefit and immediately turned over to Plaintiff.” Cornpl.
Under the Earn Out Agreement and Security Agreement, Defendant EPIC is
required to hold and preserve all records concerning receivables under the 1999
Agreements and chattel paper pertaining thereto at its chief place of business (as
specified in the Security Agreement) and is required to permit Plaintiff and/or
Plaintiffs representatives to inspect, review and duplicate such records. Therefore,
Plaintiff seeks: (a) access to the books and records of EPIC pertaining to, inter alia:
(1) all amounts paid to or receivables owed to Defendant EPIC under the 1999
Agreements, and (ii) all chattel paper pertaining to all amounts paid to or
receivables owed to Defendant EPIC under the 1999 Agreements; and (b) payment
of amounts all amounts found to owed by Defendant EPIC to Plaintiff.
EPIC moves to dismiss Longo’s Accounting and Disgorgernent Claim argl.iing
that this claim is “sirnpiy his breach of contract claim restated
action.” Def.’s Mot. Dismiss 30.
not an independent cause of
In support of its argument, EPIC relies on Rainbow Apparel,
Inc. v. KCC Trading, Inc., No. 9-cv-05319, 2010 U.S. Dist. LEXIS 51664, at
18 (D.N.J. May
26, 2010)(citing Daiiy Queen, Inc. v. Wood, 369 U.S. 469 (1962)) and Mon cheri Bridals, LLC
v. Bowls, No. 14-8107, 2015 U.S. Dist. LEXIS 37554, at
6 (D.N.J. Mar. 25, 2015) and claims
that in accordance with the aforementioned case law, if Longo seeks the equitable remedy of an
accounting, then he must demonstrate that there is no adequate remedy at law.
In opposition, Longo contends that “the terms and conditions of the relevant agreements
plainly reflect that it was intended by the parties (i.e., Longo and EPIC) that Longo’s cause of
action for audit and accounting (as well as Longo’s request, in the alternative, for the
disgorgement of all amounts received by EPIC that resulted in EPIC’s unjust enrichment at the
expense of Longo) are based primarily upon express provisions in the Earn Out Agreement and
the Security Agreement
i.e., are primarily contractual and not, as contended by Defendant in
the Defendant’s Motion, equitable causes of action.” Pl.’s Opp’n to Def’s Mot. Dismiss 37.
“An accounting in equity cannot be demanded as a matter of right or of course. The exercise
of equitable jurisdiction to compel an account rests upon three grounds
first, the existence of a
fiduciary of trust relation; second, the complicated nature or character of the account; and third,
the need of discovery.” Borough oJKenilworth v. Graceland Memorial Park Ass ‘n, 124 N.J. Eq.
35, 37, 199 A. 716 (N.J. Ch. Ct. 1938). A Plaintiffs accounting claim is thus premised on the
existence of a fiduciary relationship between a Plaintiff and Defendant. SalandStacy Corp.
Freeney, No. 11-3439, 2012 U.S. Dist. LEXIS 38141, at *37..3$ (D.N.J. Mar. 21, 2012)(Linares,
An accounting is traditionally an equitable remedy, which is injunctive in nature.
See Borough of Kenilworth v. Graceland Memorial Park Assoc., 124 N.J. Eq. 35, 199 A. 716,
717 (N.J. Ch. 1938); Thomas Glob. Grp., LLC v. Watkins, No. 13-04864, 2014 U.S. Dist. LEXI$
48042, at *25 (D.N.J. Apr. 8, 2014). Because Longo’s Accounting and Disgorgernent claim is
premised upon the argument that EPIC failed to comply with the requirements of the Earn Out
Agreement and Security Agreement by refusing to comply with Longo’s demand for access to
EPIC’s books and records, the Court finds that Longo is essentially requesting that the Court
determine the validity of the contract. Therefore, the claim is dismissed.
e. Unjust Enrichment
The Court denies EPIC’s motion to dismiss Longo’s Unjust Enrichment claim because at this
stage in the proceeding, Longo may plead, in the alternative to his Breach of Contract claim, an
utijust enrichment claim.
Therefore, EPIC’s argument that Longo does not allege facts
independent of a breach of contract claim fails and the Court denies EPIC’s motion as to this
count. Under New Jersey law, unjust enrichment is not recognized as an independent tort cause
of action. Castro v. NIT Television, 851 A. 2d 88, 98 (N.J. Super Ct. App. Div. 2004). “Unjust
a familiar basis for imposition of liability in the law of Contracts.” Id. (citing
Restatement (Second) of Contracts
345 (d) (1981)). Because an Unjust Enrichment claim is
rooted in the theory of quasi-contractual liability, the Court finds that Longo’s Unjust
Enrichment claim may proceed on this alternative theory of liability. Therefore, the Court finds
EPIC’s argument that Longo’s claim for Unjust Enrichment fails to present independent facts
outside a contractual right unpersuasive and denies EPIC’s motion to dismiss this count.
B. Longo’s Motion for a Preliminary Injunction
Longo seeks a preliminary injunction restoring the status qtto ante between EPIC and Longo
thereby requiring EPIC continue to perform its alleged obligations under the Earn Out
Agreement and Security Agreement pending a full adjudication on the merits of the underlying
Pl.’s Mot. Prelirn. Inj. 1. After carefully reviewing the submissions of the parties,
the Court finds Longo has failed to allege that he will suffer irreparable harm required for the
Court to impose injunctive relief in his favor.
Probability of Success
The first prong for the preliminary injunction analysis requires that a party show that it will
likely succeed on the merits.
Under New Jersey law, for a plaintiff to successfully establish a
breach of contract claim, the following elements must be shown:
(1) A contract exists; (2)
breach of that contract; (3) Damages arising from the alleged breach; and (4) the party performed
its own contractual duties. Frederico v. Home Depot, 507 F. 3d 18$, 203 (3d Cir. 2007); Video
Pipeline, Inc. v. Buena Vista Entm
Inc., 210 F. Supp. 2d 552, 561 (D.N.J. 2002)(citing Pub.
Serv. Entm’t Gip., Inc. v. Philadelphia Elec. Co., 722 F. Supp. 184, 219 (D.N.J. 1989)).
As an initial matter, Longo sets forth that it must be acknowledged that the parties
incontrovertibly expressed their agreement to honor and abide by the terms and conditions of the
Earn Out Agreement and the Security Agreement by executing the same. Pl.’s Mot. Prelim. Inj.
In furtherance of Longo’s assertion that the Earn Out Agreement and Security Agreement
exist as valid and enforceable contracts, Longo alleges that both agreements explicitly provide
that they shall remain in full force and effect for so long as the Articles of Agreement and
Transportation Services Agreement remain in full force and effect.
maintains that the Articles of Agreement and the Transportation Services Agreement provide that
they shall remain in full force and effect for so long as the PVSC Services Agreement is
effective, including any extensions and renewals thereof. Id.
Longo argues that EPIC “has not,
because it cannot, offer a single reason for justifiing a finding that the PVSC Services
Agreement has expired or been validly tenninated.” And, according to Longo, “[a]s the PVSC
Services Agreement remains in full force and effect, the Articles of Agreement and the
Transportation Services Agreement, and, in turn, the Earn Out Agreement and the Security
Agreement. remain enforceable.
Thus, the operative agreements are valid and enforceable
In further support of his Breach of Contract claim, Longo also contends that EPIC has no
valid basis to allege that any of the 1999 Agreements, including the Earn Out Agreement and the
Security Agreement, have expired or been terminated. Therefore, Longo argues the facts reflect
that all of the 1999 Agreements remain in full force and effect and that EPIC’s refusal to
continue to honor its obligations to timely pay Longo those amounts due and owing to Longo
under the Earn Out and Security Agreements has resulted in a material breach of both
agreements. P1. ‘s Mot. Prelim. Inj. 31.
Longo additionally supports his claim by alleging that
EPIC materially breached the operative agreements by failing to honor its obligation to seek and
obtain, prior to ceasing to perform, a final, non-appealable order from a court holding that some
or all of the terms and conditions of the Earn Out Agreement and the Security Agreement have
been abrogated or terminated. Id. 33. Longo maintains that due to EPIC’s alleged refusal to
honor any of its obligations under the Earn Out Agreement and the Security Agreement since
September 1, 2016, Longo has been and will continue to be harmed unless the Court grants his
request and enters an injunction requiring EPIC to return the parties to the status qito ante and
honor its obligation to Longo under the Earn Out Agreement and the Security Agreement. Id.
Lastly, to the extent required by the Earn Out Agreement, the Security Agreement, the
Articles of Agreement, and the Transportation Services Agreement, Longo claims that he has
timely and fully performed any and all obligations. Id. 34.
Because a plaintiff need only show a likelihood of success on the merits rather than a
showing that the plaintiff is certain to win, the Court finds that Longo has established a
likelihood that he will succeed on his Breach of Contract claim, however, because he has failed
to prove he will suffer irreparable ham-i, Longo’s request for injunctive relief is denied. See
Morton, 822 F. 2d at 367.
Irreparable Harm to the Plaintiff
Longo argues that absent injunctive relief he will suffer irreparable harm because, in addition
to the monetary damages resulting from EPIC’s alleged breach of contract, he has and will
continue to suffer potential irreparable nonmonetary damages due to EPIC’s purported material
breaches of the Earn Out Agreement and Security Agreement. Pl.’s Mot. Prelirn. Inj. 35.
support of his argument, Longo asserts:
Material to the bargained-for settlement, the Earn Out Agreement and the Security
Agreement were the requirements that EPIC: (a) not seek to amend, modify or
terminate any of the 1999 Agreements without prior consent of Longo; (b) hold all
funds due and owning to Longo for the sole benefit of Longo and in a segregated
account (i.e. take actions necessary to ensure that the amounts owing to Longo were
not commingled with any funds belonging to EPIC; (c) timely deliver all amounts
due and owing to Longo together with a certification of an officer and director of
EPIC attesting to the accuracy of the calculations underlying each monthly
payment; (d) seek and obtain a final, non-appealable order of a court of competent
jurisdiction prior to purporting to terminate or modify all of part of the Earn Out
Agreement or the Security Agreement (in the interim EPIC agreed to continue to
honor its obligations under these same agreements; and (e) indemnify and hold
harmless Longo with respect to any and all amounts expended or incurred by Longo
in connection with the enforcement of the terms and conditions in the Earn Out
Agreement or Settlement Agreement and on an as incurred basis.
Longo further argues that he will suffer significant harm in the event the Court does not
award him injunctive relief since the tenmis and conditions above were explicitly included in the
operative agreements to minimize or eliminate any risk to him. Id.
In opposition to Longo’s request for injunctive relief, EPIC asserts that the only relief sought
by Longo is monetary damages and therefore his economic injury does not constitute irreparable
harm necessary to support an award of injunctive relief. Def.’s Opp’n to Pl.’s Mot. Prelim. Inj.
15. Relying on Third Circuit and Supreme Court precedent, EPIC further asserts that this rule
also applies to the loss of ongoing income. See Instant Air Freight Co v. CF. Air Freight, Inc.,
$82 F. 2d 797, 801 (3d Cir. 1989)(quoting Sampson v. Murray, 415 U.S. 61,90(1964)).
In addition to demonstrating a probability of success, the moving party must show irreparable
harm. As Third Circuit precedent has consistently held, “[e]conomic loss does not constitute
irreparable hanm” Acierno v. New Castle Cnty., 40 F. 3d 645, 633 (3d Cir. 1994). “In order to
demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be
redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be
the only way of protecting the plaintiff from hanm” Instant Air Freight, 882 F. 2d at 801 (citing
Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 72 L. Ed. 2d 91, 102 5. Ct. 1798
(1982)); Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356 and n. 9 (3d Cir.
1980). “[A] preliminary injunction which order[s] the paynient of monies where the underlying
contract is disputed, misconceives the equitable nature and purpose of an injunctive proceeding.”
In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1145 (3d Cir. 1982). It is well settled
that “[t]he availability of adequate monetary damages belies a claim of irreparable injury.
[because] a purely economic injury, compensable in money, cannot satisfy the irreparable injury
requirement.” Frank’s GMC Trust Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d
When the claim for a preliminary injunction is based on breach of contract,
“irreparable injury may be found in two situations: (1) where the subject matter of the contract is
of such a special nature of peculiar value that damages would be inadequate; or (2) where
because of some special and practical features of contract, it is impossible to ascertain the legal
measure of loss so that money damages are impracticable.” Ecri v. McGraw Hill, Inc., 809 F. 2d
223, 226 (3d Cir. 1987)(citing A.L.K. Corp.
Cohtmbia Pictures & Indus, Inc., 440 F. 2d 761,
763 (3d Cir. 1971)).
To establish irreparable harm, Longo must provide a clear showing of immediate irreparable7
ham-i if the parties are not restored to the status qtto ante. See Hoxworth v. Blinder, Robinson &
Co., 903 F.2d 186, 205 (3d Cir. 1990) (citing Ecri, $09 F. 2d at 225 (“Establishing a risk of
irreparable ham-i is not enough. A plaintiff has the burden of proving a clear showing of
immediate irreparable injury.”)(intemal quotations omitted)). Here, the damages that Longo
claims are capable of being ascertained at a later stage in the proceeding and if awarded to
Longo, may ultimately make Longo whole in the event he is awarded damages. Thus, the Court
finds that Longo fails to demonstrate that he will suffer irreparable harm if injunctive relief is not
granted in his favor. As the Third Circuit held in Instant Air freight:
It seems clear that the temporary loss of income, ultimately to be recovered, does
not usually constitute irreparable injury.
key word in this consideration
is irreparable. Mere injuries, however substantial, in terms of money, time and
energy necessarily expended in the absence of a stay are not enough. The
possibility that adequate compensatory or other corrective relief will be available at
Discussing the nature of irreparable injury, Judge Aldisert wrote for the Court:
[T]he requisite feared injury or harm must be irreparable not merely serious or substantial. The
work means that which cannot be repaired, retrieved, put down again, atoned for... Grass that is cut
down cannot be made to grow again; but the injury can be adequately atoned for in money. The result
of the cases fixes this to be the rule: the injury must be of a peculiar nature, so that compensation in
money cannot atone for it.
Irreparable injury is suffered where monetary damages are difficult to
ascertain or are inadequate.
In re Arthur Treachers franchisee Litig., 689 f.2d 1137, 1146 (3d Cir. 1 982)(quoting Glasco v. Hills, 558 F 2d.
179, 18 1-82 (3d Cir. 1977)(citing Glause v. Perkins, 3 Jones Eq. 177, 69 Am. Dec. 728 (1857)); Danielson v. Local
275, Laborers Union, 479 F.2d 1033, 1037 (2d Cir. 1973); A. 0. Smith Corp. v. FTC., 530 F.2d at 515, 525 (3d Cir.
1976)(intemal quotations and citations omitted).
a later date, in the ordinary course of litigation, weighs heavily against a claim of
882 F.2d at 801 (3d Cir. 1989)(denying plaintiffs request for injunctive relief since “the
monetary damages which [plaintiff] alleges it is suffering are capable of ascertainment and
award at final judgment if it prevails”)(internal quotations omitted)).
Irreparable Harm to the Defendant
Although “the moving party must demonstrate both a likelihood of success on the merits and
the probability of irreparable harm if relief is not granted” to obtain a preliminary injunction, the
Court has taken into account the possibility of harm to others interested in the grant or denial of
an injunction. Morton, 822 F. 2d at 367 (citing Freixenet, LA. v. Admiral Wine & Liquor Co.,
731 F. 2d 148, 151 (3d Cir. 1984); Oburn v. Shapp, 521 F. 2d 142, 147 (3d Cir. 1975)).
Regarding harm to EPIC, Longo claims that since the injunctive relief requested seeks to restore
the parties to the status quo ante so that EPIC continue to honor its obligations under the Earn
Out Agreement and the Security Agreement as it has allegedly done for the past seventeen years
and that Longo will likely suffer irreparable injury absent an injunction, the Court need only
consider whether an injunction would unduly harm EPIC. Pl.’s Mot. Prelim.
36. To support
this argument, Longo cites to Opticians Ass ‘n ofAm. v. Indep. Opticians ofAm., 920 F. 2d 187,
197 (3d Cir. 1990) and Church & Dwight Co. v. S.C. Johnson & Son, Inc., 873 F. Supp. 893, 912
(D.N.J. 1994). But Opticians Ass ‘n of Am. concerns the use of federally registered trademarks
where the irreparable hann is of “a peculiar nature so that compensation in money alone cannot
atone for it.” 920 F. 2d at 196 (citing Morton v. Beyer, 822 F. 2d 364, 372 (3d Cir. 1987). In
finding that the grant of a preliminary injunction was warranted in favor of the nonuse of the
trademark by the defendant, the Third Circuit stated that “[g]rounds for finding irreparable injury
include loss of control of reputation, loss of trade and loss of good will.” Id. As “[oJne of the
goals of the preliminary injunction analysis is to maintain the status quo defined as the last
peaceable, noncontested status of the parties,” to restore the parties in this matter to the status
qtto and require EPIC continue to honor its obligations under the Earn Out Agreement and the
Security Agreement, would require EPIC to extend payments to Longo as the damages asserted
by Longo are only financial in nature.
See Opticians Ass ‘12 of Am., 920 F. 2d at 197 (3d Cir.
1990). Longo further argues that any alleged harm to EPIC that may result from an injunction is
self-inflicted by EPIC because it failed to honor its obligations under the operative agreements
pending a final adjudication since it is receiving benefits by allegedly avoiding its obligations
under the operative agreements.
The Court finds that Longo here fails to demonstrate that
restoring the parties to the previous state of affairs would impose no greater harm upon EPIC
than would be imposed on Longo by the denial of an injunction and his request for injunctive
relief is no more than a claim for monetary relief
A preliminary injunction may not be issued when a plaintiff fails to demonstrate likelihood of
success on the merits and irreparable harm to the plaintiff. Morton, 822 F. 2d at 367. Because
the Court finds that Longo fails to establish that he will suffer irreparable harni in the absence of
a preliminary injunction, the Court need not engage in a public interest analysis.
for the reasons discussed above, the Court grants in part and denies in part Defendant’s
partial Motion to Dismiss and denies Plaintiffs Motion for a Preliminary Injunction.
appropriate Order accompanies this Opinion.
STATES DISTRICT JUDGE
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