Ford Motor Co. v. Edgewood Props., Inc.

FORD MOTOR COMPANY, Plaintiff-Counterclaim Defendant, v. EDGEWOOD PROPERTIES, INC., Defendant-Counterclaimant.

EDGEWOOD PROPERTIES, INC., Third-Party Plaintiff, v. FORD MOTOR LAND DEVELOPMENT CORPORATION, MIG/ALBERICI, LLC, EQ NORTHEAST, INC., Third-Party Defendants.

EDGEWOOD PROPERTIES, INC., Plaintiff, v. GOLDER ASSOCIATES, INC., ARCADIS, U.S., INC. Defendant.

Civil Action No.: 06-1278 (ES)

Civil Action No. 06-4266

Civil Action No. 08-774

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: August 31, 2012

NOT FOR PUBLICATION

OPINION

SALAS, DISTRICT JUDGE

I. Introduction

Pending before this Court is Arcadis U.S., Inc.'s ("Arcadis") motion for summary judgment. (D.E. 557). The Court has reviewed Arcadis' motion, ("Arcadis Moving Br."), MIG/ALBERICI, LLC's ("MA") opposition, (D.E. 580, "MA Opp. Br."), Golder Associates, Inc.'s ("Golder") opposition, (D.E. 575, "Golder Opp. Br."), Edgewood Properties, Inc.'s ("Edgewood") opposition, (D.E. 576, "Edgewood Opp. Br."), and Arcadis' reply, (D.E. 585, "Arcadis Reply Br.").¹ Additionally, the Court has considered the entire summary judgment record, and all submissions, certifications, and declarations in connection with Arcadis' statement of material facts, (D.E. 557-1, "Arcadis Moving SMF"), MA's counter-statement of facts, (D.E. 574-1, "MA Opp. SMF"), Edgewood's counter-statement of material facts, (D.E. 576-1, "Edgewood Opp. SMF"), Arcadis' reply to MA's Opp. SMF, (D.E. 585-2, "Arcadis-MA Reply SMF"), and Arcadis' reply to Edgewood's Opp. SMF, (D.E. 585-1, "Arcadis Reply SMF"). The Court decides the motion on the papers without oral argument under Fed. R. Civ. P. 78(b).

The key finding in the following Opinion is that genuine issues of material fact exist, precluding judgment as a matter of law. At bottom, the Court's decision comes down to this: It is unclear to what extent Arcadis was involved in the supervision of off-site distribution of contaminated concrete; the extent to which Arcadis participated in the daily site meetings in which potential recipients—including Edgewood—were discussed; the extent to which Arcadis was involved in walking and talking with prospective recipients on the Edison Site whensuitability was discussed; and the extent to which Arcadis knowingly or purposefully enabled the off-site distribution of contaminated concrete to parties like Edgewood who wanted concrete in compliance with the standards set forth by the New Jersey Department of Environmental Protection ("NJDEP"). What is clear is that Edgewood and its fellow opponents have satisfied their burden on summary judgment of raising genuine disputes of material fact as to each of these issues, pointing to specific facts in the voluminous summary judgment record for support. Accordingly, the Court denies Arcadis' summary judgment motion.

II. Background

This action arises out of the demolition of a Ford assembly plant in Edison, New Jersey (the "Edison Site"), and the distribution of contaminated concrete from the site. Ford and Edgewood entered into a contract whereby Ford agreed to provide 50,000 cubic yards of concrete to Edgewood in exchange for Edgewood's hauling it off the site. Then, Edgewood brought the concrete to seven properties it was developing (the "Seven Properties"). The parties later determined that the concrete was contaminated. As such, Ford brought claims against Edgewood, and Edgewood asserted cross-claims, counter-claims, and a third-party complaint, including claims against Arcadis, the company retained as Ford's Industrial Site Recovery Act ("ISRA") consultant. Arcadis moves for summary judgment on the following claims: (1) Count I under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"); (2) Count III Negligence; (3) Count IV Civil Conspiracy; (4) Count V under New Jersey RICO ("NJ RICO"); and Count VII under the New Jersey Spill Act ("Spill Act").

III. Legal Standards

A. Summary Judgment

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Azur v. Chase Bank, USA, Nat'l Ass'n, 601 F.3d 212, 216 (3d Cir. 2010). A genuine issue of material fact exists for trial when—in viewing the record and all reasonable inferences drawn from it in the light most favorable to the non-movant—a reasonable finder of fact could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "To be material, a fact must have the potential to alter the outcome of the case." DeShields v. Int'l Resort Props., No. 11-2672, 2012 U.S. App. LEXIS 3580, at *5 (3d Cir. Feb. 23, 2012) (internal citation omitted).

The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Rule 56(e); Celotex, 477 U.S. at 324; Azur, 601 F.3d at 216. Rule 56(c) mandates the entry of summary judgment against a party "who 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. A scintilla of evidence in support of the non-movant's position is insufficient to oppose a summary judgment motion successfully; instead, "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. "Credibility determinations, the weighing of the evidence, and thedrawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." Anderson, 477 U.S. at 255.

IV. Discussion

Below, the Court first finds that the disputed issues of fact are genuine, and not, as Arcadis argues, "conjur[ed]." (Arcadis Reply Br. at 1). Second, the Court discusses how the genuine issues of fact are material to each of the claims for which Arcadis seeks summary judgment, precluding summary judgment on Counts I, III, IV, V, and VII.

A. Genuine Issues of Material Fact

The core factual dispute that drives the analysis in this Opinion relates to the parties' characterizations of Arcadis' role in this case. Arcadis characterizes itself as an ISRA consultant only, without involvement in the off-site disposition of crushed concrete, the root of all the claims. (Arcadis Moving Br. at 2 ("[T]he final disposition of crushed concrete not reused on the Edison site was not within Arcadis' scope of work. Extensive discovery has revealed that Arcadis played no role in sampling the concrete, selection of the piles of concrete to be distributed, negotiation of the sales agreements, or even the decision to allow concrete to be reused instead of landfilled. To the contrary, discovery has confirmed that Arcadis' role was limited to ISRA compliance issues.")). In opposition, Edgewood argues that Arcadis played an important role in the decommissioning, demolition, and distribution of concrete off-site. (Edgewood Opp. Br. at 1 ("Arcadis claims that its role at the [the Edison site] during the events of 2004-2005 relevant to this litigation was limited to one of an 'environmental consultant' merely assisting Ford with its obligations to investigate and remediate environmental contamination pursuant to the Industrial Site Recovery Act ('ISRA'). The evidence tells a different story. While the investigation and remediation work was proceeding, tens of thousandsof tons of concrete were generated by Ford's decommissioning and demolition of the Edison Site. Arcadis has acknowledged that there was an integral relationship between the investigation and remediation work and the decommissioning and demolition work. Arcadis necessarily played an important role in both."); see also MA Opp. Br. 4-8; Golder Opp. Br. 2-4). Although there are many areas of factual dispute, the Court focuses its factual analysis on the five most important ones in support of its finding that genuine issues of material fact exist.

1. Variance Request

Ford Land hired Golder to assist in pre-decommissioning support services at the Edison Site, including formal preparation of a decommissioning project manual (the "Manual"). (Arcadis Moving SMF ¶¶ 32-35). Under the Manual, MA was primarily responsible for managing demolition debris through recycling, disposal, or reuse pursuant to the Manual. (Id. at ¶¶ 40-43). Generally, MA and Ford intended to use crushed concrete generated from the demolition of the buildings as backfill if the Manual and applicable regulations permitted. (Id. ¶¶ 45, 64-65, 75). Because the site was undergoing ISRA remediation, however, and the concrete did not meet the applicable technical requirements for backfill, Ford Land and Golder asked Arcadis to identify the ISRA regulatory requirements applicable to the reuse of crushed concrete on-site as backfill. (Id. ¶ 74). Arcadis advised that a variance from the technical requirements was necessary to use the crushed concrete on-site, (id. ¶¶ 77-83), because, from a regulatory standpoint, the use of crushed concrete as backfill was a gray area. (Id. ¶¶ 77, 84-85).

Accordingly, Arcadis' Senior Manager John Messinger confirmed in an August 4, 2004 email that Arcadis would volunteer to "prepare and submit" the variance request to the NJDEP. (Ex. 44 to Affidavit of Mark M. Tallmadge, Jan. 13, 2012, in Support of Arcadis' Motion for Summary Judgment, "Tallmadge Aff.," Ex. 44 ("ARCADIS can prepare and submit the variancerequest. Information regarding the proposed use of crushed concrete as backfill including quantity, location, crushing method, source materials, etc. will need to be included in the variance report.")). In an August 10, 2004 email, Golder's...