The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FEDERATED MUTUAL INSURANCE
COMPANY, a/s/o MIKE ZYNDORF,
LLC,
Civ. No. 19-21405
Plaintiff,
OPINION
v.
CITY OF OCEAN CITY, N.J.,
Defendant.
THOMPSON, U.S.D.J.
INTRODUCTION
This matter comes before the Court upon the Motions for Summary Judgment filed by
Plaintiff Federated Mutual Insurance Company (“FMI” or “Plaintiff”) (ECF No. 32) and
Defendant City of Ocean City, NJ (“Ocean City” or “Defendant”) (ECF No. 31). The Court has
decided the Motions based on the written submissions of the parties and without oral argument,
pursuant to Local Rule 78.1(b). For the reasons stated herein, both Motions (ECF Nos. 31, 32)
are DENIED.
BACKGROUND
I. Factual Background
The following facts are undisputed unless otherwise noted. In January 2017, Mike
Zyndorf, LLC (“Zyndorf”) leased a dump truck to Defendant Ocean City. (Pl.’s Statement of
Undisputed Material Facts (“SUMF”) ¶ 4, ECF No. 32-1.) In February 2017, the truck caught
fire and injured an Ocean City employee, Richard Hardin (“Hardin”). (Id. ¶ 28.) This case is a
dispute between Zyndorf’s insurer, FMI, and Defendant Ocean City.
A. The Rental Agreement
Zyndorf and Ocean City executed a lease (the “Rental Agreement”) on January 27, 2017.
(Id. ¶ 4.) Under the Rental Agreement, Zyndorf leased a 2005 John Deere 250D articulated dump
truck (the “truck”) to Defendant Ocean City for a period of one month. (Id.) Zyndorf did not
extend any warranties and leased the truck in “as is” condition. (Id. ¶ 8.) The Rental Agreement
required Ocean City to obtain liability insurance for the truck and inspect the truck on delivery.
(Id. ¶¶ 12, 14.) Ocean City agreed to notify Zyndorf if the truck was damaged or malfunctioned
so that Zyndorf could repair or replace the truck. (Id. ¶ 15.) Finally, an indemnification provision
in the Rental Agreement promises that Ocean City will cover costs in a broad range of scenarios:
Lessee [Ocean City] agrees to defend at its own expense, indemnify and hold
Lessor [Zyndorf] harmless for any and all damages, losses, claims, costs and
expenses (including reasonable attorney’s fees) incurred by Lessor as a result of
any injury to person, life or property caused by the Leased Property [the rental
truck] or its operation while in the possession of the Lessee or any other person or
entity possessing the Leased Property during the term of this Lease.
(Rental Agreement ¶ 15, ECF No. 31-5.) The parties dispute the proper interpretation of this
provision.
B. The Underlying Incident
Zyndorf delivered the truck to Ocean City on January 30, 2017. (Pls.’ SUMF ¶ 17.)
Ocean City accepted delivery. (Id.) Ocean City planned to use the truck to haul sand for a beach
replenishment project. (Id. ¶ 27.) On February 3, 2017, Ocean City contacted Zyndorf to report a
“vibration” in the truck. (Id. ¶ 19.) A Zyndorf employee retrieved the truck, determined there
was a crack in the truck’s “torsional damper,” and installed a new damper. (Id. ¶ 20.) The
Zyndorf employee then determined that the truck was functioning properly and returned the
truck to Ocean City on February 7, 2017. (Id. ¶¶ 21,22.)
The Zyndorf employee returned the truck to Hardin, an Ocean City employee. (Id. ¶ 24.)
Hardin and the Zyndorf employee test drove the truck. (Id. ¶ 24.) The parties dispute whether
there was sand in the truck bed during the test drive. (Id. ¶ 24; Def.’s Counter Statement of Facts
¶ 24, ECF No. 38-1.) At a deposition, Hardin testified that the Zyndorf employee test drove the
truck with him for a block without any sand in the truck bed. (Def.’s Ex. D at 62, ECF No. 31-6.)
Hardin further testified that he told the Zyndorf employee that the truck was “running bad,” and
that Hardin had driven the truck the previous week and “this is not how it runs.” (Id.) Hardin
claims the Zyndorf employee told him that the truck was “fine” and to “just use it,” and offered
to come fix the truck again if necessary. (Id.)
On February 8, 2017, Hardin used the truck to complete the beach replenishment project.
(Pl.’s SUMF ¶ 27.) During Hardin’s first trip of the day, the truck burst into flames. (Id.) Hardin
jumped six to seven feet from the cab of the truck to escape the smoke and flames (the
“Underlying Incident”). (Def.’s SUMF ¶ 1, ECF No. 31.) Hardin was injured during the incident.
(Id.) The Ocean City Fire Department then arrived on the scene and found the “cab and engine
compartment fully engulfed in flames.” (Pl.’s SUMF ¶ 30.)
The Ocean City Fire Department had its Fire Investigator complete an “Origin & Cause
Report.” (Id. ¶ 33.) The investigator performed a scene investigation, vehicle investigation, took
photographs, interviewed fire department personnel and witnesses, and identified “potential
hazards.” (Id. ¶ 36.) The investigator was unable to determine the cause of the fire. (Id. ¶ 38.)
Zyndorf’s insurance company, Plaintiff FMI, also hired a fire investigator. (Id. ¶ 40.) That
investigator assessed numerous potential causes but could not determine the cause of the fire due
to extensive damage in the engine compartment. (Id. ¶ 48.)
II. Procedural History
In June 2017, FMI provided notice to Ocean City of multiple claims arising from the
Underlying Incident and its intent to seek indemnity and defense coverage pursuant to the Rental
Agreement. (Id. ¶ 50.) FMI followed up and sent correspondence to Ocean City in October,
November, and December of 2017. (Id. ¶ 52.)
In February 2018, Hardin sued Zyndorf for negligence. (Id. ¶ 56.) In that case (“the
Underlying Action”), neither Hardin nor Zyndorf joined Ocean City as a party. (Id. ¶ 59.) Hardin
hired a liability expert, Michael A. Stichter, who testified that Zyndorf was at fault. (Def.’s
SUMF ¶ 15.) The parties completed discovery and Zyndorf filed a motion for summary
judgment. (Pl.’s SUMF ¶¶ 59, 60.) While that motion was pending, FMI and Zyndorf settled the
Underlying Action with Hardin for $700,000, but did not admit liability on the part of Zyndorf.
(Id. ¶ 65.)
In December 2019, FMI initiated the present action against Ocean City. (Id. ¶ 68.) FMI
alleges that Ocean City breached the Rental Agreement when it failed to indemnify Zyndorf in
the Underlying Action. (See Compl., ECF No. 1.) FMI seeks $762,580.95 for its costs in
defending the Underlying Action, including the settlement amount. (Pl.’s SUMF ¶ 84.)
Ocean City moved to dismiss, arguing that the New Jersey entire controversy doctrine
precluded this lawsuit. (ECF No. 7.) The Court denied Defendant’s motion to dismiss. (ECF No.
11.) The parties engaged in discovery. In July 2021, the parties filed these cross-motions for
summary judgment. (ECF Nos. 31, 32.) Each party opposed the other’s motion. (ECF Nos. 34,
38.) Finally, each party replied. (ECF Nos. 36, 39.)
LEGAL STANDARD
Summary judgment shall be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if it
could lead a “reasonable jury [to] return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment.” Id.
When deciding the existence of a genuine dispute of material fact, the Court must determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52. The
Court must grant summary judgment if any party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322. “[I]nferences, doubts, and issues of credibility
should be resolved against the moving party.” Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307
n.2 (3d Cir. 1983).
DISCUSSION
In Plaintiff’s Motion for Summary Judgment, FMI argues that (1) The Rental Agreement
requires Defendant Ocean City to indemnify Zyndorf for costs related to the Underlying Action;
(2) Defendant failed to perform that obligation under the Rental Agreement; and (3) Defendant
therefore owes Plaintiff $762,580.95 plus prejudgment interest. In Defendant’s Motion for
Summary Judgment, Ocean City argues that (1) the indemnification provision is not enforceable;
(2) the New Jersey Tort Claims Act (NJTCA) bars subrogation claims against public entities; and
(3) the New Jersey Entire Controversy Doctrine requires that the Court grant summary judgment
in favor of Defendant.
For the reasons stated herein, the Court denies Plaintiff’s Motion for Summary Judgment
and Defendant’s Motion for Summary Judgment.
I. Breach of Contract and Indemnification
Plaintiff argues that Defendant breached the Rental Agreement by failing to indemnify
Zyndorf for costs in the Underlying Action. The parties agree that the Rental Agreement was a
valid contract, but contest whether Defendant breached the Rental Agreement when Ocean City
refused to indemnify FMI for the settlement amount in the Underlying Action. Thus, the Rental
Agreement’s indemnification provision is the crux of the dispute as to both the indemnification
claim (Count I) and the contractual claim (Count II).
A. The Indemnification Clause
The indemnification provision in the Rental Agreement promises that Ocean City will
cover costs in a broad range of scenarios:
Lessee [Ocean City] agrees to defend at its own expense, indemnify and hold
Lessor [Zyndorf] harmless for any and all damages, losses, claims, costs and
expenses (including reasonable attorney’s fees) incurred by Lessor as a result of
any injury to person, life or property caused by the Leased Property or its operation
while in the possession of the Lessee or any other person or entity possessing the
Leased Property during the term of this Lease.
(Rental Agreement ¶ 15.) Plaintiff argues this provision, read in the context of the entire contract,
requires Defendant Ocean City to indemnify Zyndorf for the settlement amount in the
Underlying Action. Defendant argues this provision does not require Ocean City to indemnify
Zyndorf for costs related to Zyndorf’s own negligence.
“The New Jersey Supreme Court has emphasized that for an indemnitor to be found to
indemnify the indemnitee for the indemnitee’s own negligence, such an intent must be expressly
and unequivocally stated.” Darcy v. N.J. Transit Rail Operations, Inc., 2007 U.S. Dist. LEXIS
33989, at *6 (D.N.J. May 8, 2007). “Indemnity contracts are interpreted in accordance with the
rules governing the construction of contracts generally. When the meaning of the clause is
ambiguous, however, the clause should be strictly construed against the indemnitee. Thus, a
contract will not be construed to indemnify the indemnitee against losses resulting from its own
negligence unless such an intention is expressed in unequivocal terms.” Ramos v. Browning
Ferris Industries, Inc., 103 N.J. 177, 192 (N.J. 1986) (citations omitted); see also Mantilla v. NC
Mall Assocs., 167 N.J. 262, 269 (N.J. 2001). (“[T]here is a presumption against indemnifying an
indemnitee for its own negligence that can be rebutted only by plain language clearly expressing
a contrary intent.”) Moreover, in Azurak v. Corporate Property Investors, the Court clarified that
“in order to allay even the slightest doubt on the issue of what is required to bring a negligent
indemnitee within an indemnification agreement, we reiterate that the agreement must
specifically reference the negligence or fault of the indemnitee.” 175 N.J. 110, 112-113 (N.J.
2003) (emphasis added).
The indemnification provision in this case does not “specifically reference the negligence
or fault of the indemnitee.” Id. The Rental Agreement’s indemnification provision is broad and
does not explicitly mention indemnification for costs related to Zyndorf’s own negligence. Thus,
the indemnification provision falls short of the “explicit” and “unequivocal” test established in
Ramos, Mantilla, and Azurak. Plaintiff asks the Court to cobble together other provisions within
the Rental Agreement—such as the requirement for Ocean City to obtain liability insurance and
a “no warranties” clause—to prove it was the “intent of the parties to have Ocean City indemnify
for the Underlying Action.” (Pl.’s Opp’n at 10, ECF No. 34). The Court declines to do so. Darcy,
2007 U.S. Dist. LEXIS 33989, at *9 (finding a provision that required indemnitor to obtain
insurance did not indicate intent to indemnify indemnitee for indemnitee’s own negligence).
In sum, the New Jersey Supreme Court has been clear: “an agreement must specifically
reference the negligence or fault of the indemnitee” to bring a negligent indemnitee within an
indemnification agreement. Azurak, 175 N.J. at 112–13. This contract provision does not meet
that standard. Thus, Ocean City did not agree to indemnify Zyndorf for Zyndorf’s negligence.
B. Disputed Questions of Material Fact Remain
Costs incurred by Zyndorf and FMI, in defense of Zyndorf’s active negligence are not
recoverable, but those costs incurred defending claims on which Zyndorf was only derivatively
or vicariously liable are recoverable. Central Motor Parts Corp. v. E.I. duPont deNemours &
Co., Inc., 596 A.2d 759, 762 (N.J. Super. App. Div. 1991) (“Central Motor II”) New Jersey takes
an “after-the-fact” approach to determine whether the indemnitee had independent or vicarious
liability in the underlying lawsuit. Mantilla, 167 N.J. at 273 (citing Central Motor II, 596 A.2d at
762). Typically, Courts look to trial verdicts or settlement agreements that apportion fault
between the indemnitor and indemnitee. Id.
Here, the settlement agreement between Zyndorf, FMI, and Hardin did not apportion the
liability between Ocean City and Zyndorf. In such cases, “the court hearing the indemnification
claim will have to conduct proceedings in which the indemnitee will have the opportunity to
prove (1) that it was the indemnitor’s wrongful conduct that occasioned the claim against the
indemnitee, (2) that the indemnitee was not independently liable to the injured person, and (3)
that the indemnitee incurred legal costs defending its vicarious liabilities, and in what amount.”
Central Motor II, 596 A.2d at 763.1 Applied here, FMI must prove how much of the settlement
amount stemmed from its defense of Ocean City’s conduct. Under the Rental Agreement, Ocean
City is responsible for that amount.
On the record presented, the Court cannot determine as a matter of law whether—or to
what extent—Ocean City’s negligent conduct occasioned Hardin’s underlying claim against
Zyndorf. For example, FMI argues that, in the Underlying Lawsuit, Hardin only alleged passive
or vicarious liability against Zyndorf, i.e., that Zyndorf was “merely stepping inside the shoes of
Ocean City in the Underlying Action.” (Pl.’s Opp’n at 11.) FMI further argues that experts could
not determine whether Zyndorf had any role in causing the fire and that Ocean City had control
of the vehicle prior to the incident. (Id.) At his deposition, however, Hardin testified that a
Zyndorf mechanic test drove the truck with Hardin prior to the Underlying Incident and told him
the truck was “fine.” (Def.’s Ex. D at 62, ECF No. 31-6.) Moreover, Hardin’s complaint in the
Underlying Action sued Zyndorf for negligence and specifically cited the mechanic’s
representations that the truck was in good working order. (Pls.’s Ex. Q ¶ 16, ECF No. 32-22.)
Thus, the question of liability is a genuine dispute of material fact that precludes judgment in
favor of either party.2
1 Both Mantilla and Central Motor II were cases in which the indemnitee sought to recover
counsel fees from the indemnitor. This same procedure applies beyond the context of attorney’s
fees and requires the Court to determine the indemnitee’s independent liability in a settlement
agreement. Toys ”R” Us-Delaware, Inc. v. Tots in Mind, Inc., 2012 WL 529595, at *4 n.2 (E.D.
Va. Feb. 17, 2012) (citing Central Motor Parts Corp. v. E.I. duPont deNemours and Co., Inc.,
596 A.2d 773 (N.J. Super. L. Div. 1989)) (“Central Motor I”)
2 While Courts can decide this issue as a matter of law, the record in this case does not support a
finding in favor of either party as a matter of law. For example, in Central Motor I, the Court
determined that the indemnitee had settled only its own independent negligence liability in the
underlying suit. 596 A.2d at 743. There, the indemnitor had settled its liability with the
underlying plaintiff before the indemnitee settled with the underlying plaintiff. Id. Therefore, the
settlement between the indemnitee and the underlying plaintiff could only be for the
Going forward, FMI has the burden to prove “(1) that it was the indemnitor’s wrongful
conduct that occasioned the claim against the indemnitee, (2) that the indemnitee was not
independently liable to the injured person, and (3) that the indemnitee incurred legal costs
defending its vicarious liabilities, and in what amount.” 3 Central Motor II, 596 A.2d at 763.
II. The New Jersey Tort Claims Act and Entire Controversy Doctrine
Defendant makes two legal arguments in favor of its Motion for Summary Judgment.
First, Defendant argues that the New Jersey Tort Claims Act prohibits this lawsuit. Second
Defendant argues that the Court should dismiss this case under the New Jersey entire controversy
doctrine. The Court rejects both arguments.
A. The New Jersey Tort Claims Act
First, the New Jersey Tort Claims Act (“NJTCA”) provides that “[n]o insurer or other
person shall be entitled to bring an action under a subrogation provision in an insurance contract
against a public entity or public employee.” N.J.S. § 59:9-2. Defendant claims that this provision
indemnitee’s independent liability to the underlying plaintiff, not the indemnitee’s vicarious
liability on behalf of the indemnitor. Id. Thus, the indemnitor was not required to cover the costs
of the indemnitee’s settlement with the underlying plaintiff because the settlement was for the
indemnitee’s independent liability. Id. at 744. Here, however, the indemnitor (Ocean City) was
not a party to the original lawsuit or the settlement agreement and has not settled with the
underlying plaintiff (Hardin). Therefore, the apportionment of liability between the parties in this
case is unclear.
3 Moreover, while “case law allows indemnification for settlement payments, it requires the
indemnitee to demonstrate that (a) the indemnitee’s claims are based on a valid, pre-existing
indemnitor/indemnitee relationship; (b) the indemnitee faced potential liability for the claims
underlying the settlement; and (c) the settlement amount was reasonable.” Chem. Bank of New
Jersey Nat. Ass'n v. Bailey, 687 A.2d 316, 320–21 (N.J. Super. App. Div. 1997) (citing Central
Motor I, 596 A.2d at 773). As discussed, there are genuine disputes as to prong (a)—i.e., what
proportion of the settlement agreement is covered under the indemnification clause. The parties
also have not addressed prong (c)—whether the settlement amount was reasonable. Thus, it
would also be inappropriate to grant Plaintiff’s Motion for Summary Judgment without such a
showing.
bars Plaintiff’s claim because Plaintiff’s claim is brought against Ocean City—a public entity—
under a subrogation provision in the contract between Plaintiff and Zyndorf. (Def.’s Mot. at 15.)
The NJTCA does not bar this claim. The NJTCA provides that “[n]othing in this act shall
affect liability based on contract or the right to obtain relief other than damages against the
public entity or one of its employees.” N.J.S. § 59:1-4. Plaintiff’s claim is a contractual dispute,
not a tort claim. In other words, Plaintiff FMI seeks to enforce Zyndorf’s alleged contractual
right of indemnification against Ocean City. FMI is not stepping into Zyndorf’s shoes to sue
Ocean City in tort. While the Court recognizes that the indemnification proceeding described
above seems like a negligence inquiry, see Part I.B supra, the underlying cause of action in this
case is breach of contract. Therefore, the immunity from subrogation suit provided in the NJTCA
does not apply here.
B. The New Jersey Entire Controversy Doctrine
The entire controversy doctrine is “essentially New Jersey’s specific, and idiosyncratic,
application of traditional res judicata principles.” Rycoline Prods., Inc. v. C & W Unlimited, 109
F.3d 883, 886 (3d Cir. 1997).The doctrine provides in pertinent part:
Non-joinder of claims required to be joined by the entire controversy doctrine
shall result in the preclusion of the omitted claims to the extent required by the
entire controversy doctrine . . . .
N.J. Ct. R. 4:30A. Under the doctrine, “a party cannot withhold part of a controversy for
later litigation even when the withheld component is a separate and independently cognizable
cause of action.” In re Mullarkey, 536 F.3d 215, 229 (3d Cir. 2008) (citing Paramount Aviation
Corp. v. Agusta, 178 F.3d 132, 137 (3d Cir. 1999)).
In determining whether a claim should be barred, “the central consideration is whether
the claims against the different parties arise from related facts or the same transaction or series of
transactions.” Wadeer v. N.J. Mfrs. Ins. Co., 110 A.3d 19, 27 (N.J. 2015) (quoting DiTrolio v.
Antiles, 662 A.2d 494, 502 (N.J. 1995)). Additionally, the entire controversy doctrine applies
“only when a prior action based on the same transactional facts has been tried to judgment or
settled.” U.S. ex. rel. Charte v. Am. Tutor, Inc., 934 F.3d 346, 352 (3d Cir. 2019) (quoting Arena
v. Borough of Jamesburg, 706 A.2d 790, 792 (N.J. Sup. Ct. App. Div. 1998)). The entire
controversy doctrine is “constrained by principles of equity” and does not bar claims “where to
do so would be unfair in the totality of the circumstances and would not promote any of its
objectives, namely, the promotion of conclusive determinations, party fairness, and judicial
economy and efficiency.” Id. (citations omitted). Thus, the doctrine’s “application is flexible,
with a case-by-case appreciation for fairness to the parties.” In re Mullarkey, 536 F.3d at 229.
While the New Jersey Supreme Court previously applied the doctrine to require joinder
of parties as well as claims, see, e.g., Cogdell v. Hosp. Ctr. at Orange, 560 A.2d 1169, 1178–79
(1989), the Court subsequently “authorized the elimination of mandatory party joinder under the
entire controversy doctrine,” Ctr. For Prof’l Advancement v. Mazzie, 347 F. Supp. 2d 150, 155–
56 (D.N.J. 2004) (citing K-Land Corp. No. 28 v. Landis Sewerage Auth., 800 A.2d 861, 867 (N.J.
2002)). Accordingly, mandatory party joinder now exists only “in special situations involving
both inexcusable conduct . . . and substantial prejudice to the non-party resulting from omission
from the first suit.” Id. at 156.
As discussed in the Court’s Opinion on Defendant’s Motion to Dismiss, the present suit
has an overlapping factual basis with the Underlying Action. (Mot. to Dismiss Op. at 7, ECF No.
10.) Thus, the entire controversy doctrine may bar claims in the present case that could have
been brought between the parties to the Underlying Action. However, Defendant was not a party
to the Underlying Action. Therefore, the entire controversy doctrine does not apply, unless
Defendant can demonstrate inexcusable conduct and substantial prejudice resulting from its
omission from the Underlying Action. See Mazzie, 347 F. Supp. 2d at 156.
“The concepts of inexcusable conduct and substantial prejudice are interrelated such that
the existence of substantial prejudice will often serve to render the underlying conduct
inexcusable.” Id. at 156 (citing Hobart Bros. Co. v. Nat’l Union Fire Ins. Co., 806 A.2d 810, 817
(N.J. Super. Ct. App. Div. 2002)). Substantial prejudice “means that a person not joined in an
earlier action will be seriously harmed in his or her ability to maintain an adequate defense in a
subsequent action.” Id. (citing Mitchell v. Charles P. Procini, D.D.S., P.A., 752 A.2d 349, 354
(N.J. Super. Ct. App. Div. 2000)). Delay alone does not serve to create substantial prejudice, but
loss of witnesses, loss of evidence, and fading memories may. Id. A party’s access to relevant
information is largely dispositive of the substantial prejudice issue. Id.
While it is a close call, Defendant has not established substantial prejudice here.
Defendant’s chief complaint is that the failure to include Ocean City in the prior lawsuit deprived
Defendant of the opportunity to hire an expert witness to evaluate the causes of the accident.
(Def.’s Mot. at 19.) The inability to retain an expert can amount to substantial prejudice. See TLC
Services, LLC v. Devine Roofing & Constr., LLC, 2019 WL 5824780 (N.J. Super. App. Div.
Nov. 7, 2019). In this case, however, Defendant had access to the critical relevant information.
As the Court noted when it previously rejected this argument during the Motion to Dismiss, “the
examination of the rental truck and that the related report and findings were performed by
Defendant’s own fire department.” (Mot. to Dismiss Op. at 7.) Thus, the Court cannot say that
any prejudice was substantial enough to merit dismissal.
The Court recognizes that it would have been far more efficient for Plaintiff to have
joined Defendant in the Underlying Suit and that the interests of judicial economy could warrant
dismissal in this case. However, preclusion is a remedy of last resort. Hobart, 806 A.2d at 819.
Because of the specific factual circumstances in this case—namely, Defendant’s access to
critical information—that “last resort” remedy is not warranted here. Id.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment (ECF No. 32) and
Defendant’s Motion for Summary Judgment (ECF No. 31) are DENIED. An appropriate Order
will follow.
Date: March 30, 2022 /s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.