FIDELITY EATONTOWN, LLC et al v. EXCELLENCY ENTERPRISE, LLC et al

Filing 28

OPINION filed. Signed by Judge Brian R. Martinotti on 6/22/2017. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
:
:
:
Plaintiffs,
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v.
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:
:
EXCELLENCY ENTERPRISE, LLC,
:
KENNEDY AUTO SERVICE, INC., and :
GAS OF EATONTOWN, INC., et al.,
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Defendants.
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____________________________________:

FIDELITY EATONTOWN, LLC and
QUICKCHEK CORPORATION,

Civil Action No. 3:16-cv-3899-BRM-LHG

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court are the following motions: (1) Defendant Excellency Enterprise’s
(“Excellency”) Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No.
13-1); and (2) Plaintiffs Fidelity Eatontown (“Fidelity”) and QuickChek Corporation’s
(“QuickChek”) (collectively, “Plaintiffs”) Motion to Dismiss Defendant Kennedy Auto Service’s
(“Kennedy”) Counterclaim, pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 16).
Pursuant to Federal Rule of Civil Procedure 78(b), the Court did not hear oral argument. 1 For the
reasons set forth herein, Excellency’s Motion to Dismiss is GRANTED in part and DENIED in
part. Plaintiffs’ Motion to Dismiss is GRANTED.

1

On January 5, 2017, the parties appeared before the Court for a settlement conference and were
directed to discuss a settlement. (ECF No. 23.) The parties did not reach a settlement.

I. BACKGROUND
For the purpose of Excellency’s Motion to Dismiss, the Court accepts the factual
allegations in the Complaint (ECF No. 1) as true and draws all inferences in the light most
favorable to Plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). For the
purpose of Plaintiffs’ Motion to Dismiss Kennedy’s Counterclaim, the Court accepts the factual
allegations in the Answer (ECF No. 12) as true and draws all inferences in the light most favorable
to Kennedy. See id.
Plaintiffs allege Excellency, Kennedy, and Gas of Eatontown, Inc. (“Gas of Eatontown”)
(collectively, “Defendants”) conducted an illegal scheme of sham litigation and anticompetitive
acts to interfere with Plaintiffs’ respective development projects in the Borough of Eatontown,
New Jersey (“Eatontown”), which would compete with Defendants’ businesses, also located in
Eatontown. (ECF No. 1 ¶ 1.) Fidelity is a New Jersey limited liability company and real estate
developer. (Id. ¶¶ 1, 8.) Fidelity’s proposed development (the “Fidelity Project”) would include a
Wawa convenience store/gas station and a Chick-Fil-A fast food restaurant on roughly six acres
of land at the intersection of State Highway 35 and Wyckoff Road. (Id. ¶¶ 23, 25.) QuickChek is
a New Jersey corporation that operates convenience store/gas station locations. (Id. ¶¶ 1, 9.).
QuickChek’s proposed development (the “QuickChek Project”) would consist of a food store and
eight fuel pumps on the southbound side of State Highway 35 near the former South Street right
of way. (Id. ¶¶ 31, 33.) Defendants each own and/or operate a gas station within a mile of the sites
of Plaintiffs’ proposed developments. (Id. ¶¶ 34-36.)
A. Defendants’ Challenges to the Fidelity Project
On or about November 2012, Fidelity applied to the Eatontown Planning Board (“Planning
Board”) for Preliminary and Final Major Site Plan approval of a Wawa convenience store/gas

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station. (Id. ¶ 37.) On or about December 16, 2013, after several hearings, the Planning Board
approved the variances Fidelity sought and granted Preliminary and Final Site Plan Approval. (Id.
¶¶ 38-39.) On February 24, 2014, Defendants filed an action in lieu of prerogative writs in the
Superior Court of New Jersey, Monmouth County, alleging the Planning Board’s decision was
improper because, inter alia: the variances constituted “rezoning by variance”; the Planning Board
violated Defendants’ due process rights to be heard; and the approval was arbitrary, capricious,
and unreasonable. (Id. ¶¶ 40-41.) The action in lieu of prerogative writs began a series of
challenges which led to roughly a dozen hearings, filings, and decisions before the Planning Board,
the Eatontown Zoning Board of Adjustment (“Zoning Board”), and in the Superior Court over the
course of twenty-three months. (Id. ¶¶ 42-75.) Each of Defendants’ challenges has been
unsuccessful. (Id.) Defendants’ appeal of the Superior Court’s dismissal of their prerogative writs
action is ongoing and has included several requests for extensions and motions that have delayed
the appeal. (Id. ¶¶ 109-13.)
B. Defendants’ Challenges to the QuickChek Project
On or about October 15, 2014, QuickChek applied to the Planning Board for Preliminary
and Final Major Site Plan approval of a QuickChek store. (Id. ¶ 76.) The Board Engineer
determined the project’s proposed use was permitted in the zone, and it identified the bulk
variances and waivers required for the project. (Id. ¶¶ 77-78.) On or about December 9, 2014,
QuickChek filed a revised site plan with the Zoning Officer. (Id. ¶ 79.) QuickChek appeared before
the Planning Board on December 22, 2014, March 16, 2015, and July 6, 2015, and Excellency’s
counsel attended the hearings to challenge the application. (Id. ¶¶ 81-82.) On May 13, 2015, while
QuickChek’s application was pending before the Planning Board, the Eatontown Borough Council
(the “Council”) passed Ordinance 07-2015 (the “Ordinance”) that gave the Planning Board

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jurisdiction to hear applications for relief from parties seeking bulk variances. (Id. ¶¶ 68, 83.) On
or about August 3, 2015, the Planning Board approved QuickChek’s application for Preliminary
and Final Major Site Plan approval. (Id. ¶ 84.) On or about September 11, 2015, Excellency filed
a second action in lieu of prerogative writs, alleging the Planning Board’s decision was improper
because, inter alia: the Planning Board lacked sufficient credible evidence to grant variances with
respect to an Eatontown ordinance governing the distances a gas station must be from other gas
stations and from residential property; the Planning Board lacked sufficient information to
determine the safety of traffic circulation on the site; and the approval was arbitrary, capricious,
and unreasonable. (Id. ¶¶ 85-86.) Plaintiffs allege Defendants engaged in a series of tactics during
the second prerogative writs action that delayed the action for months, such as submitting a
proposed case management order that disregarded the terms the parties discussed at a case
management conference and seeking to delay the trial. (Id. ¶¶ 88-92.) The trial in the action in lieu
of prerogative writs has yet to be scheduled. (Id. ¶ 93.)
C. Defendants’ Challenge to the Ordinance
On June 12, 2015, Excellency commenced an action in lieu of prerogative writs challenging
the Ordinance on several grounds, including: (1) the adoption of the Ordinance was arbitrary,
capricious, and unreasonable; (2) the Ordinance constitutes an amendment of Eatontown’s Master
Plan; and (3) the Ordinance constitutes rezoning of the property it affects. (Id. ¶¶ 97-98.) On or
about August 28, 2015, and September 15, 2015, QuickChek and Fidelity, respectively, moved to
intervene in the action to protect and enforce their rights. (Id. ¶ 100.) In January 2016, QuickChek
and Fidelity sent separate letters to Defendants advising them the action violated New Jersey Rule
of Court 1:4-8 and New Jersey’s Frivolous Litigation Act, N.J.S.A. § 2A:15-59. (Id. ¶¶ 102-03.)
Defendants did not respond to either letter. (Id. ¶ 105.)

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On June 29, 2016, Plaintiffs filed their Complaint in this action asserting claims for: (1)
violations of Section 2 of the Sherman Act, 15 U.S.C. § 2, including monopolization, attempted
monopolization, and conspiracy to monopolize (id. ¶¶ 114-25); violations of the New Jersey
Antitrust Act, N.J.S.A. § 56:9-1, et seq. (id. ¶¶ 126-37); (3) tortious interference with prospective
economic advantage (id. ¶¶ 138-42); (4) tortious interference with contract (id. ¶¶ 143-47); and (5)
civil conspiracy (id. ¶¶ 148-51).
II. LEGAL STANDARD
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a district court is “required to
accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in
the light most favorable to the [plaintiff].” Phillips, 515 F.3d at 228. “[A] complaint attacked by
a . . . motion to dismiss does not need detailed factual allegations.” Bell Atlantic v. Twombly, 550
U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). A court is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the complaint are true, those
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more

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than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than ‘an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 678. “[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.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
III. DECISION—EXCELLENCY’S MOTION TO DISMISS 2
A. Monopolization Claim 3 (Count One)
A claim for monopolization pursuant to Section 2 of the Sherman Act, 15 U.S.C. § 2,
consists of (1) the possession of monopoly power and (2) “willful acquisition or maintenance of
that power as distinguished from growth or development as a consequence of a superior product,
business acumen, or historic accident.” Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S.
451, 481 (1992) (citation omitted). “Monopoly power is the ability to control prices and exclude

2

The Court reviewed and considered the parties’ letters to the Court regarding Inserra
Supermarkets, Inc. v. Stop & Shop Supermarket, Co., LLC, No. 16-01697, 2017 WL 773876
(D.N.J. Feb. 28, 2017) and Sumas v. Hanover 3201 Realty, LLC v. Village Supermarkets, Inc.,
Docket No. A-3238-15T3, (N.J. Super. Ct. App. Div. April 12, 2017). (ECF Nos. 25-27.) The
Court finds the cases instructive but not dispositive, particularly in light of the fact-intensive nature
of an antitrust claim. See Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 318 (3d Cir. 2007).
3

Plaintiffs assert claims for monopolization, attempted monopolization, and conspiracy to
monopolize pursuant to Section 2 of the Sherman Act in the First Count of the Complaint. (ECF
No. 1 ¶¶ 114-25.) As the elements differ for each claim, the Court will analyze them separately
even though they were pled together as a single count.
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competition in a given market.” Broadcom Corp., 501 F.3d at 307 (citing United States v. Grinnell
Corp., 384 U.S. 563, 570-71 (1966)). The second element of a claim for monopolization—willful
acquisition or maintenance of monopoly power—requires the possession of monopoly power to
be “accompanied by some anticompetitive conduct on the part of the possessor.” Id. (citing Verizon
Commcn’s Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004)).
Excellency argues Plaintiffs’ claim for monopolization should be dismissed, because
Plaintiffs have not pled Defendants possess monopoly power. (ECF No. 13-1 at 7-8.) Plaintiffs
effectively concede their failure to properly plead a claim for monopolization, arguing they do not
need to allege Defendants have a monopoly in order to plead there is an attempt to monopolize.
(ECF No. 15 at 5.)
Therefore, Excellency’s Motion to Dismiss Plaintiffs’ claim for monopolization is
GRANTED.
B. Attempted Monopolization Claim (Count One)
A plaintiff asserting a claim for attempted monopolization pursuant to Section 2 of the
Sherman Act, 15 U.S.C. § 2, must allege: “(1) that the defendant has engaged in predatory or
anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability
of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993)
(citation omitted). To show a dangerous probability of achieving monopoly power, a plaintiff must
define “the relevant market and examin[e] . . . market power.” Id. at 455. The relevant market
includes products that are “reasonably interchangeable,” which “implies that one product is
roughly equivalent to another for the use to which it is put.” Queen City Pizza, Inc. v. Domino’s
Pizza, Inc. 124 F.3d 430, 437 (3d Cir. 1997) (citation omitted). “A predominant share of the
market, or a lesser market share combined with other relevant factors, may suffice to demonstrate

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monopoly power.” Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 201 (3d Cir. 1992)
(citing Weiss v. York Hosp., 745 F.2d 786, 827 n.72 (3d Cir. 1984)).
Excellency concedes Plaintiffs have pled anticompetitive conduct, but it argues Plaintiffs
have not met the pleading standard for an attempted monopolization claim because they “failed to
plead any facts at all going to whether Excellency has any monopoly or power at all in the alleged
market.” (ECF No. 17 at 3.) A plaintiff can plead a claim for attempted monopoly, however,
without identifying defendant’s specific share of the market. Broadcom Corp., 501 F.3d at 319
(denying a motion to dismiss despite plaintiff’s failure to allege defendant’s market share). A
plaintiff can demonstrate “anticompetitive practices, barriers to entry, the strength of competition,
the probable development of the industry, and the elasticity of consumer demand . . .” Id. at 318
(citation omitted).
Here, Plaintiffs allege a variety of factors that could demonstrate Defendants have a
dangerous probability of achieving a monopoly. Plaintiffs allege numerous examples of
Defendants’ anticompetitive conduct. (ECF No. 1 ¶¶ 40-41, 44, 47-50, 54, 63-64, 66-67, 99, 109110, 112.) Plaintiffs allege in detail that the barriers for gas stations to enter the market in
Eatontown are high, noting factors such as “the need for available, properly zoned property” and
“significant financial costs associated with the development of a gas stations convenience store.”
(Id. ¶ 22.) Finally, Plaintiffs allege Defendants have a “dominant position in the relevant market”
and allege an “absence of other competitors.” (Id. ¶ 119.) Plaintiffs need not allege Defendants
possess a specific percentage of the market share, but there must be an allegation of market share.
See Fineman, 980 F.2d at 201 (citing Weiss, 745 F.2d at 827 n.72). Further, dismissal is not
appropriate unless it is “clear on the face of the complaint that the ‘dangerous probability’ standard

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cannot be met as a matter of law.” Brader v. Allegheny Gen. Hosp., 64 F.3d 869, 877 (3d. Cir
1995).
Excellency also argues Plaintiffs’ attempted monopolization claim should be dismissed
because Plaintiffs failed to allege they suffered an “antitrust injury” of the sort the Sherman Act is
meant to prevent. (ECF No. 13-1 at 7 (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429
U.S. 477, 489 (1977).) Excellency claims Plaintiffs have alleged only personal financial loss, and
it argues this is not the sort of injury antitrust laws are meant to prevent. (Id. at 8 (citing Broadcom
Corp., 501 F.3d at 308 (“Conduct that merely harms competitors . . . while not harming the
competitive process itself, is not anticompetitive.”)).)
The Third Circuit has stated “[a]s a general matter, the class of plaintiffs capable of
satisfying the antitrust-injury requirement is limited to consumers and competitors in the restrained
market . . . and to those whose injuries are the means by which the defendants seek to achieve their
anticompetitive ends.” Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162,
172 (3d Cir. 2015) (quoting W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 102 (3d
Cir. 2010)). The pivotal distinction between an injury that qualifies as an antitrust injury and one
that does not is whether the “harm was the essential component of [d]efendants’ anticompetitive
scheme as opposed to an ancillary byproduct of it.” Id. at 173. In Hanover, the Third Circuit
determined a plaintiff sustained an antitrust injury in facts similar to those in this case. Id. at 17374. The defendants, a ShopRite supermarket and its subsidiary, sought to prevent the plaintiff, a
property developer, from obtaining planning approvals for land the plaintiff would lease to a
Wegmans supermarket. Id. at 166. Although the defendants’ anticompetitive actions were
ultimately aimed at the Wegmans, the court found the developer’s injuries, i.e., the costs of
contesting the challenges to its application for approval, were a necessary part of the defendants’

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plan. Id. at 174. Here, Plaintiffs have alleged Excellency and the other Defendants have inflicted
injuries through the allegedly baseless challenges to Plaintiffs’ planning applications. (ECF No. 1
¶ 125.) As in Hanover, the injuries, as alleged in the Complaint, represent a key component of
Defendants’ efforts to discourage competition in violation of the Sherman Act and therefore
constitute antitrust injuries.
Therefore, Excellency’s Motion to Dismiss Plaintiffs’ claim for attempted monopolization
is DENIED.
C. Conspiracy to Monopolize Claim (Count One)
A plaintiff asserting a claim for conspiracy to monopolize “must establish the existence of
an agreement, sometimes also referred to as a ‘conspiracy’ or ‘concerted action.’” W. Penn
Allegheny Health Sys., Inc. 627 F.3d at 99 (citations omitted). An agreement consists of “a unity
of purpose, a common design and understanding, a meeting of the minds, or a conscious
commitment to a common scheme.” Id. (citation omitted). A plaintiff can plead an antitrust
conspiracy by alleging direct or circumstantial evidence. Id.
Here, Plaintiffs allege all three Defendants jointly challenged Plaintiffs’ applications
through a series of sham and baseless appeals before municipal bodies and the Superior Court.
(ECF No. 1 ¶¶ 40-41, 44, 47-50, 54, 63-64, 66-67, 99, 109-110, 112.) Further, Plaintiffs allege
Defendants retained the same expert witness and the same counsel. (Id. ¶¶ 63, 102-03.) These
allegations of circumstantial evidence are sufficient to support a claim that Defendants possessed
“a unity of purpose, a common design and understanding, a meeting of the minds, or a conscious
commitment to a common scheme” to interfere with Plaintiffs’ applications. See W. Penn
Allegheny Health Sys., Inc., 627 F.3d at 99.
Therefore, Excellency’s Motion to Dismiss Plaintiffs’ claim for conspiracy to monopolize
is DENIED.
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D. New Jersey State Antitrust Claim (Count Two)
The Third Circuit has observed “the New Jersey [Antitrust] Act itself mandates that it ‘shall
be construed in harmony with the ruling judicial interpretations of comparable Federal antitrust
statutes and to effectuate . . . a uniformity of those states which enact it.’” St. Clair v. Citizens Fin.
Grp., 340 F. App’x 62, 65 n.2 (3d Cir. 2009) (quoting N.J.S.A. § 56:9-18). Thus, insofar as
Plaintiffs have successfully alleged claims under the New Jersey Antitrust Act for attempted
monopolization and conspiracy to monopolize, Excellency’s motion is DENIED.
E. Tortious Interference with Prospective Economic Advantage Claim (Count
Three)
The four elements of a claim for tortious interference with prospective economic advantage
under New Jersey law are: “(1) a reasonable expectation of economic advantage to plaintiff, (2)
interference done intentionally and with ‘malice,’ (3) causal connection between the interference
and the loss of prospective gain, and (4) actual damages.” Varrallo v. Hammond Inc. 94 F.3d 842,
848 (3d Cir. 1996) (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (1989)).
Defendants argue Plaintiffs cannot meet the pleading requirements of tortious interference with
prospective economic advantage because Plaintiffs have not pled facts to show a connection
between alleged interference and the loss of a prospective gain. (ECF No. 13-1 at 13.) Excellency
states New Jersey is among a minority of jurisdictions that observe the “new business rule.” (Id.
(citing RSB Lab. Servs., Inc. v. BSI Corp., 368 N.J. Super. 540 (App. Div. 2004)).) Under the new
business rule, the prospective profits of a new business are deemed too remote and speculative to
meet the legal standard of legal certainty. In re Merritt Logan, Inc., 901 F.2d 349, 356 (3d Cir.
1990) (citing Weiss v. Revenue Bldg. & Loan Ass’n., 116 N.J.L. 208 (1936)).
Plaintiffs argue neither Wawa nor QuickChek is a new business, because each is part of a
national chain. (ECF No. 15 at 18.) Plaintiffs cite a New Jersey Tax Court case that found a new
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business that is part of a large chain is considered integrated with those other businesses. (Id. at 17
(citing Mayer & Schweitzer, Inc. v. Dir., Div. of Taxation, 20 N.J. Tax 217, 227 (Tax 2002)).) This
case has no bearing, though, on the new business rule in the context of contract law.
On the other hand, New Jersey courts have found the new business rule does not apply in
cases where the business operator has experience in the sort of enterprise that alleges lost
prospective profits. RSB Lab. Servs., Inc., 368 N.J. Super. at 560-61. In RSB Laboratory Services,
the Appellate Division determined the new business rule did not bar a claim for prospective profits
when a plaintiff who ran a facility that drew blood from patients and sent the blood to outside labs
opened its own facility to do the laboratory work itself. Id. The court distinguished this from two
earlier cases in which the new business rule applied. In the first case, the new business rule applied
to a plaintiff who transitioned from operating a rooming house to running a fifty-six room
residential building. Id. at 561 (citing Weiss, 116 N.J.L. at 209). The new business rule also applied
to a marine salvage company that sought to expand its operation to include a 100-ton-capacityfloating crane Id. at 561-62 (citing Seaman v. U.S. Steel Corp., 166 N.J. Super. 467, 469 (App.
Div.), certif. denied, 81 N.J. 282 (1979)). In contrast to the court in RSB Laboratory Services, the
courts in Seaman and Weiss decided the new business rule applied and prospective profits could
not be assumed, because the plaintiffs did not have experience operating businesses of such scale.
Id. The court in RSB Laboratory Services distinguished those facts from the plaintiff’s expansion
of its blood drawing business to include lab analysis, which the court determined was related and
not a “new business.” Id.
Here, the facts more closely resemble those in RSB Laboratory Services. This Court takes
judicial notice of the fact that both Wawa and QuickChek are chains that operate widely. Wawa
operates more than five hundred retail locations with gas stations (About Us - Wawa,

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https://www.wawa.com/about (last visited June 21, 2017)), while QuickChek has 140 locations in
New York and New Jersey (QuickChek - History, http://quickchek.com/History (last visited June
21, 2017)). Given the extensive history Wawa and QuickChek have with operating businesses of
the sort they propose to operate in Eatontown, Plaintiffs’ prospective profits are not too remote in
light of this history. The Court finds the new business rule does not apply to this case.
As Excellency does not argue Plaintiffs have failed to adequately plead the remaining
elements for tortious interference with prospective economic advantage, Excellency’s Motion to
Dismiss the claim is DENIED.
F. Tortious Interference with Contract (Count Four)
Plaintiffs allege Defendants tortuously interfered with Fidelity’s contract with Wawa
related to the Fidelity Project. (ECF No. 1 ¶¶ 144-47.) “To establish [tortious interference with an
existing contract], a plaintiff must prove: (1) an existing contractual relationship; (2) intentional
and malicious interference with that relationship; (3) loss or breach of a contract as a result of the
interference; and (4) damages resulting from that interference. DiGiorgio Corp. v. Mendez & Co.,
Inc., 230 F. Supp. 2d 552, 558 (D.N.J. 2002) (citing Printing Mart-Morristown, 116 N.J. at 75152). Defendants challenge only the sufficiency of Plaintiffs’ pleading of the second of the four
elements, specifically, whether Defendants’ alleged interference was intentional. (ECF No. 13-1
at 14.) Excellency challenges Plaintiffs’ pleading of the second element and argues Plaintiffs do
not allege Excellency desired to interfere with the agreement between Fidelity and Wawa, nor
whether Excellency was even aware of the agreement. (Id.)
“Interference is intentional when ‘the actor desires to bring it about or if he knows that the
interference is certain or substantially certain to occur as a result of his action.’” Cargill Global
Trading v. Applied Dev. Co., 706 F. Supp. 2d 563, 575-76 (D.N.J. 2010) (quoting Dello Russo v.
Nagel, 358 N.J. Super 254, 268 (App. Div. 2003) (quoting Restatement (Second) of Torts, § 766A,
13

comment e (1977))). A party acts with malice when there is no “justification or excuse” for the
interference. Id. at 576 (citing Singer v. Beach Trading Co., 379 N.J. Super. 63, 82 (App. Div.
2005) (quoting Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 79-80 (App. Div. 2004))).
Here, Plaintiffs allege Defendants mounted baseless, bad-faith challenges to Fidelity’s
application for approval of a Wawa convenience store and gas station. (ECF No. 1 ¶¶ 37-41.)
Because Fidelity, the applicant, sought approval to develop the property on behalf of Wawa, the
prospective tenant, the Court infers Excellency was aware of an agreement between the parties
whose development Defendants challenged. Plaintiffs allege throughout the Complaint Defendants
acted intentionally to delay Plaintiffs’ projects in an effort to prevent them from entering the
market. (Id. ¶¶ 2, 4, 115, 123-24, 127, 129, 134-35, 141, 146.) Plaintiffs’ recount Defendants’
unsuccessful efforts to challenge the Fidelity Project in particular. (Id. ¶¶ 37-75.) The Court finds
Plaintiffs pled sufficient facts to support their claim, Excellency intended to interfere with Fidelity
and Wawa’s contract, and that the interference was with malice. DiGiorgio Corp. v, 230 F. Supp.
2d at 558 (citing Printing Mart-Morristown, 116 N.J. at 751-52).
Therefore, Excellency’s Motion to Dismiss the claim for tortious interference with contract
is DENIED.
G. Civil Conspiracy (Count Five)
Plaintiffs assert a claim against Excellency and its fellow Defendants for civil conspiracy.
(ECF No. 1 ¶¶ 149-51.) Under New Jersey law, a plaintiff alleging civil conspiracy must prove “a
combination of two or more persons acting in concert to commit an unlawful act, or to commit a
lawful act by unlawful means, the principal element of which is an agreement between the parties
to inflict a wrong against or injury upon another, and an overt act that results in damage.” Banco
Popular, N.A. v. Gandi, 184 N.J. 161, 177 (2005) (citation omitted). Excellency argues Plaintiffs
have not alleged any facts to support their civil conspiracy claim. (ECF No. 13-1 at 15.)
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Plaintiffs allege all three Defendants jointly challenged Plaintiffs’ applications in bad faith,
thereby tortuously interfering with Plaintiffs’ prospective economic advantage and contract. (ECF
No. 1 ¶¶ 2, 4, 115, 123-24, 127, 129, 134-35, 141, 146.) Further, Plaintiffs allege Defendants
retained the same expert witness and the same counsel. (Id. ¶¶ 63, 102-03.) At this stage of the
proceedings, these allegations are sufficient to support a claim that Excellency and the other
Defendants acted in concert to commit an unlawful act, i.e. to violate antitrust law by opposing
Plaintiffs’ applications through sham litigations, and by tortuously interfering with Plaintiffs’
prospective economic advantage and contract.
Therefore, Excellency’s Motion to Dismiss Plaintiff’s claim for civil conspiracy is
DENIED.
IV. DECISION—PLAINTIFFS’ MOTION TO DISMISS
A. Kennedy’s Counterclaim for Malicious Use of Process
Kennedy asserts a counterclaim for malicious use of process, alleging the “Complaint is
motivated by malice” because Defendants merely sought to exercise their constitutional rights by
challenging Plaintiffs’ applications by way of “the constitutionally protected avenues of judicial
and governmental redress.” (ECF No. 12 ¶¶ 7-8.)
To assert a claim for malicious use of process, a plaintiff “must allege ‘that the original suit
(1) was instituted without reasonable or probable cause; (2) was motivated by malice; (3)
terminated favorably to [the plaintiff]; and (4) resulted in a “special grievance” to the plaintiff.’”
Hassoun v. Cimmino, 126 F. Supp. 353, 369 (D.N.J. 2000) (quoting Giri v. Rutgers Cas. Ins. Co.,
273 N.J. Super. 340, 347 (App. Div. 1988)). As to the first element—probable cause—the Supreme
Court of New Jersey has stated “[p]robable cause is a matter of law to be determined by the court,
and it is only submitted to the jury if the facts giving rise to probable cause are themselves in

15

dispute.” LoBiondo v. Schwartz, 199 N.J. 62, 93 (2009) (citation omitted). A court should apply a
reasonable person standard to determine whether a plaintiff had an “honest belief” in the
allegations asserted in the lawsuit. Id. (citations omitted).
Here, neither Kennedy nor Plaintiffs argue the facts giving rise to probable cause are in
dispute, so based on the undisputed facts the Court has determined Plaintiffs properly alleged there
was probable cause to assert their claims. Specifically, the Court has determined Plaintiffs have
properly alleged claims for attempted monopolization, conspiracy to monopolize, tortious
interference with prospective economic advantage, and tortious interference with contract.
Whether Plaintiffs prosecute their claims successfully is a question that will bide discovery and
later stages of litigation. But insofar as Plaintiffs have stated plausible claims for relief, the Court
finds a reasonable party confronted with the facts of this lawsuit would have had an honest belief
in the allegations asserted in the Complaint. Id. As the Court finds Plaintiffs’ had probable cause
to bring the lawsuit, Kennedy is unable to meet the first element of malicious use of process and
it is not necessary to analyze the remaining elements.
Therefore, Plaintiffs’ Motion to Dismiss Kennedy’s counterclaim for malicious use of
process is GRANTED.

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V. CONCLUSION
For the reasons set forth above, Excellency’s Motion to Dismiss (ECF No. 13-1) is
GRANTED IN PART and DENIED IN PART. Plaintiffs’ claim for monopolization pursuant to
Section 2 of the Sherman Act, 15 U.S.C. § 2, and their claim for monopolization pursuant to the
New Jersey Antitrust Act, N.J.S.A. § 56:9-1, et seq., are DISMISSED WITHOUT PREJUDICE.
Plaintiffs’ Motion to Dismiss (ECF No. 16) is GRANTED. Kennedy’s Counterclaim for malicious
use of process is DISMISSED WITH PREJUDICE. An appropriate Order will follow.

Date: June 22, 2017

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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