ASPDIN et al v. FOGGIA et al

Filing 79

OPINION filed. Signed by Judge Mary L. Cooper on 8/28/2012. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CRAIG ASPDIN, et al.,

CIVIL ACTION NO. 10-6490 (MLC)
O P I N I O N

Plaintiffs,
v.
STANLEY FOGGIA, et al.,
Defendants.

THE PLAINTIFFS, Craig Aspdin and Vivian Aspdin (“Aspdins”) and
C&V Management Company, LLC (“C&V”), commenced this action against
the Defendants, Stanley Foggia and Patricia Foggia (“Foggias”).
(See dkt. entry no. 1, Compl.)

The Aspdins allege that they

purchased real property (“Property”), including a swimming pool
(“Pool”), from the Foggias in the spring of 2007.

(See id. at

¶¶ 24-25; see also dkt. entry no. 11, Foggias’ Br. Upon Mot. to
Dismiss Compl. at 10.)1

At closing, the Aspdins were represented

by Meryl M. Polcari, Esquire (“Polcari”) and the Foggias were
represented by the law firm of McKenna, DuPont, Higgins & Stone,
P.C. (“MDHS”).

(See dkt. entry no. 51, Am. Third-Party Compl. at

¶¶ 11-12; dkt. entry no. 64, Fourth-Party Compl. at ¶¶ 1-2.)
1

It appears that the Aspdins are the sole members of C&V.
(See dkt. entry no. 12, Aspdins’ Opp’n to Mot. to Dismiss Compl. at
1-3.) It further appears that the Aspdins agreed to purchase the
Property on behalf of C&V, and that the deed for the Property was
executed in the name of and delivered to C&V. (See Compl., Ex. A,
Contract of Sale at 1, 8; Compl., Ex. B, Deed.) With this
understanding, the Court, for ease of reference, will collectively
refer to the Aspdins and C&V as “the Aspdins”.

THE ASPDINS now seek to rescind the Contract of Sale and
recover financial damages related to their purchase of the
Property.

(See generally id.)

The Aspdins allege that the

Foggias, prior to the sale of the Property: (1) failed to disclose
that the Property earlier housed an underground oil storage tank
(“UST”); (2) failed to disclose that the UST had been removed from
the Property; (3) failed to disclose that oil from
the UST had contaminated soil located on the Property; and
(4) purposefully and knowingly concealed the soil contamination at
the Property.

(See id. at ¶¶ 14-23, 28, 38-40, 43-45.)

Foggias oppose rescission of the Contract of Sale.

The

(See generally

dkt. entry no. 21, Answer to Compl.)
THE FOGGIAS filed the Third-Party Complaint and, following
dismissal of that pleading, the Amended Third-Party Complaint.
(See Am. Third-Party Compl.)

They allege in the Amended Third-

Party Complaint that they prepared a “Sellers’ Property Disclosure
Condition Statement”, which disclosed the existence of, removal of,
and soil contamination issues related to the UST formerly housed on
the Property.

(See id. at ¶¶ 21-22, 36, 49.)

raise claims against, inter alios, MDHS.

The Foggias thus

(See id.)

They allege

that MDHS “fail[ed] to fully perform the services for which [it]
was retained” by “fail[ing] to provide Plaintiffs with the Sellers’
Property Disclosure Condition Statement prior to the sale of the

2

subject property”.

(Id. at ¶¶ 21-22.)

They allege that MDHS was

unjustly enriched by its failure to perform.

(See id. at ¶ 36.)

They also alleged that MDHS unjustly “breached its duty to the
Defendants” by “fail[ing] to list, market, disclose all conditions,
and allegedly provide Plaintiffs with the Sellers’ Property
Disclosure Condition Statement prior to the sale of the subject
property.”

(Id. at ¶ 50.)

MDHS, in turn, filed the Fourth-Party Complaint, raising
claims for contribution from and indemnification against Polcari.
(See generally Fourth-Party Complaint.)

MDHS therein “denies that

it had any duty to provide the Sellers’ Property Disclosure
Condition Statement to the plaintiffs, or to ensure that plaintiffs
received the Sellers’ Property Disclosure Condition Statement, or
to ensure the plaintiffs were otherwise made aware of the prior
existence of the UST on the subject property.”

(Id. at ¶ 11.)

It

asserts without further explanation “that if it is found liable to
plaintiffs or third-party plaintiffs, any damages sustained by
plaintiffs or third-party plaintiffs were caused by the negligence
of fourth-party defendant Polcari in this matter.”
17.)

(Id. at ¶¶ 13,

MDHS seeks contribution from Polcari, arguing that “Polcari

is directly liable to plaintiffs or third-party plaintiffs for
their damages, liable over to MDHS, or jointly and severally liable
with MDHS and other defendants and third-party defendants.”

3

(Id.

at ¶ 14.)

It alternatively seeks to indemnify itself against

Polcari, arguing that “MDHS’ liability will be secondary, indirect,
passive, vicarious or imputed, and the liability of Polcari will be
direct, active or primary.”

(Id. at ¶ 17.)

POLCARI now moves to dismiss the Fourth-Party Complaint
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6).
(See dkt. entry no. 70, Polcari Mot.)

MDHS opposes that motion.

(See generally dkt. entry no. 71, MDHS Opp’n.)

The Court will

resolve the Motion to Dismiss the Fourth-Party Complaint without
oral argument pursuant to Local Civil Rule 78.1(b).
THE COURT notes that a “complaint must contain sufficient
factual matter, accepted as true to ‘state a claim to relief that
is plausible on its face.’

A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
“[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has
alleged--but it has not ‘show[n]’--that the ‘pleader is entitled to
relief.’”

Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)).

COURTS, when examining a complaint in light of Rule 12(b)(6),
must “accept all factual allegations as true, construe the

4

complaint in the light most favorable to the plaintiff, and
determine, whether under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.”

Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

“Liberal

construction”, however, “has its limits, for the pleading must at
least set forth sufficient information for the court to determine
whether some recognized legal theory exists on which relief could
be accorded the pleader. . . .

Conclusory allegations or legal

conclusions masquerading as factual conclusions will not suffice to
prevent a motion to dismiss.

While facts must be accepted as

alleged, this does not automatically extend to bald assertions,
subjective characterizations, or legal conclusions.”

Serra v.

Berkshire Life Ins. Co. of Am., No. 07-1798, 2007 WL 2066384, at *2
(D.N.J. July 13, 2007) (brackets and citation omitted).
THE COURT has scrutinized the Fourth-Party Complaint.

It

appears that Paragraphs 1-11 of that pleading merely set forth the
procedural history of the action, including, in part, some of the
pertinent allegations found in the Complaint and the Amended ThirdParty Complaint.

(See, e.g., Fourth-Party Compl. at ¶ 10 (“Through

their third-party complaint, defendants/third-party plaintiffs
allege they have been damaged as a result of the breaches of duties
by the third-party defendants, including MDHS.”).)

Paragraphs

12-17 set forth MDHS’s conclusions regarding Polcari’s alleged

5

liability.

(See, e.g., id. at ¶¶ 13, 17 (“any damages sustained by

plaintiffs or third-party plaintiffs were caused by the negligence
of fourth-party defendant Polcari in this matter”).)
THE COURT, upon consideration of the Fourth-Party Complaint,
now concludes that MDHS has failed to set forth sufficient factual
allegations to support its claims for relief.

MDHS states, in its

claims for contribution from and indemnification against Polcari,
“any damages sustained by plaintiffs or third-party plaintiffs were
caused by the negligence of fourth-party defendant Polcari in this
matter.”

(Id.)

It fails, however, to set forth sufficient

information that establishes how or when Polcari acted
negligently.2
THE COURT will enter an appropriate Order, granting the Motion
to Dismiss the Fourth-Party Complaint without prejudice.

MDHS may,

within thirty days, move for leave before the Magistrate Judge to
file an Amended Fourth-Party Complaint that sets forth the factual
bases for its claims.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:

August 28, 2012
2

MDHS has merely established that Polcari works as an
attorney in the state of New Jersey and that she represented the
Aspdins during their purchase of the Property. (Fourth-Party
Compl. at ¶¶ 1-2.) These allegations, standing alone, certainly
cannot establish liability.
6