1 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

NOT FOR PUBLICATION 

 

 : 

JSM AT TINGLEY, LLC, JSM AT : 

APPLEGARTH, LLC, JSM AT BRICK, LLC, : 

JSM AT ROUTE 70, LLC, JSM AT MARTIN : 

BOULEVARD, LLC, WWM PROPERTIES, : 

LLC, FULTON SQUARE URBAN : 

RENEWAL, LLC, and COLUMBIA GROUP : 

AT HAMILTON, LLC, : 

 : 

Plaintiffs, : Civil Action No. 11-448 

 : 

v. : OPINION

 : 

FORD MOTOR COMPANY, FORD MOTOR : 

LAND DEVELOPMENT CORPORATION, : 

MIG/ALBERICI, LLC, ALBERICI : 

CONSTRUCTORS, INC., EQ NORTHEAST, : 

INC., GOLDER ASSOCIATES, INC., and : 

ARCADIS U.S., INC. : 

 : 

Defendants. : 

 : 

SALAS, DISTRICT JUDGE

 This matter comes before the Court on motions to dismiss the claims in Plaintiffs’ 

complaint on various grounds submitted by Defendants EQ Northeast Inc. (D.E. 47), 

MIG/Alberici, L.L.C. and Alberici Constructor Inc. (D.E. 48), Golder Associates, Inc. (D.E. 50), 

Arcadis U.S., Inc. (D.E. 51), and Ford Motor Company and Ford Motor Land Development 

Corporation (D.E. 52). The Court has considered the submissions made in support of and in 

opposition to the motions and decides this matter without oral argument pursuant to Fed. R. Civ. 

P. 78. For the reasons set forth below, Ford Motor Company and Ford Motor Land 

Development’s motion to dismiss all counts for failure to timely assert compulsory 

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counterclaims under Fed. R. Civ. P. 13(a)—(D.E. 52)—is granted, and all claims against Ford 

Motor Company and Ford Motor Land Development in this action are dismissed with prejudice. 

Motions by the other Defendants in this action will be denied without prejudice with leave to file 

supplemental briefing to address whether the other Defendants join Ford’s Rule 13(a) arguments, 

and if so, how Rule 13(a) applies to the claims asserted against each Defendant by Plaintiffs in 

this case.1

I. BACKGROUND, FACTS, AND PROCEDURAL HISTORY 

The Court assumes the parties’ familiarity with the facts of this action, and therefore sets 

them forth briefly, adding more specifics throughout the Opinion where they are relevant. In its 

Opinion, the Court will refer collectively to Plaintiffs as the “Related Entities,” who owned and 

developed the “Seven Properties” allegedly harmed by the contaminated concrete that Edgewood 

Properties, Inc. (“Edgewood”) brought to its development sites pursuant to its “Zero-Dollar Sales 

Agreement” with Ford. (JSM Compl. ¶ 105). Where the Court refers to specific Plaintiffs, it 

will do so as follows: JSM at Tingley, LLC (“Tingley”)—owner of the Tingley Property (JSM 

Compl. ¶ 1); JSM at Applegarth, LLC (“Applegarth”)—owner of the Applegarth Property (id. ¶ 

2); JSM at Brick, LLC (“Brick”)—owner of part of the Brick Property (id. ¶ 3); JSM at Route 

70, LLC (“Route 70”)—owner of the other part of the Brick Property (id. ¶ 4); JSM at Martin 

Boulevard, LLC (“Martin Blvd.”)—owner of the Brick Mobile Home Park (id. ¶ 5); WWM 

Properties, LLC (“WWM”)—owner of the West Windsor Properties (id. ¶ 6); Fulton Square 

Urban Renewal, LLC (“Fulton Square”)—developer of Fulton Square Condominiums and owner 

of the Fulton Property (id. ¶ 7); and Columbia Group at Hamilton, LLC (“Columbia Group”)—

                                                            

1

 The Court notes that it is unclear from the briefs themselves whether each Defendant has joined Ford’s Rule 13(a) 

arguments, and if so, how such arguments apply. Therefore, the Court will not risk raising these arguments sua 

sponte. Per its below analysis, however, the Court does consider Rule 13(a) to be a critical issue in this action, and 

therefore requests supplements to the parties’ briefs per the accompanying Order. 

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owner of the American Standard Property (id. ¶ 8). Where it does so, the Court will refer 

generally to the Defendants as “Defendants” or “Ford and its co-parties.” More often, the Court 

will refer to each Defendant specifically, as follows: Ford Motor Company and Ford Motor Land 

Development Corporation (“Ford”); MIG/Alberici, LLC (“MIG/A”); Alberici Constructors, Inc. 

(“ACI”); EQ Northeast, Inc. (“EQ”); Golder Associates, Inc. (“Golder”); and Arcadis U.S., Inc. 

(“Arcadis”). 

The instant action arises out of Edgewood’s procurement of Recycled Concrete 

Aggregate (“RCA”) from Ford’s former automobile assembly plant in Edison, New Jersey 

(“Edison Plant”) in 2004. The Related Entities allege that in January, 2005 “Ford and [MIG/A] 

began distributing concrete with positive PCB detections pursuant to so-called ‘zero-dollar sales 

agreements’ negotiated and executed by Ford.” Under the terms of these agreements, “Ford, 

[MIG/A], Golder, Arcadis, and/or EQ provided third parties (including, but not limited to, 

Edgewood) crushed concrete at no cost.” (D.E. 1, JSM Compl. ¶ 81). Ford hired Golder and 

Arcadis as consultants “responsible for environmental issues related to decommissioning the 

Edison Plant.” (Id. ¶ 33). Ford hired MIG/A “and/or ACI to serve as the general contractor 

responsible for decommissioning” the Plant. (Id. ¶ 34). MIG/A, in turn, hired EQ “to assist in 

decommissioning the Edison Plant.” (Id. ¶ 15). Then, “during April-May 2005, Ford, Golder, 

and/or EQ intentionally, recklessly and/or negligently misrepresented that under the anticipated 

‘Second Contract,’ Edgewood would receive crushed concrete not exceeding the residential (or 

unrestricted use) criteria.” (Id. ¶ 139). Subsequently, Edgewood used the concrete as backfill at 

the Seven Properties owned by the Related Entities, Plaintiffs in this action. The parties later 

determined that the concrete was contaminated. 

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A. First Amended Complaint 

This case (the “JSM Action” or “the present action”), and its companion case, Ford 

Motor Co. v. Edgewood Properties, Inc., No. 06-1278 (D.N.J.) (the “Edgewood Action”), has a 

long procedural history with which the Court presumes the parties are familiar; therefore, the 

Court sets forth only the procedural history and facts relevant to its analysis below. 

Ford first filed the Edgewood Action on March 17, 2006 in the District of New Jersey. 

(D.E. 1 (06-1278)). On June 9, 2008, after substantial discovery, “Plaintiff Ford Motor company 

(‘Ford’ or ‘Plaintiff’), by its attorneys . . . [filed] its First Amended Complaint against 

Defendants Edgewood Properties, Inc. (‘Edgewood’).” (D.E. 125 (11-1278), the “First 

Amended Complaint”). Ford sought recovery for “the necessary costs of response that Ford has 

or will incur . . . caused by Edgewood’s discharge of crushed concrete material containing PCBs 

to several locations: American Standard (Hamilton Township), Fulton Square (New Brunswick), 

West Windsor Township Site, Tingley Rubber (South Plainfield), Applegarth (Monroe 

Township), Laurelton Mobile Home Park (Brick Township), and Brick 70 (Brick Township).” 

(Id. ¶ 2). Ford alleged, “[f]or purposes of this First Amended Complaint, ‘Edgewood’ shall 

include the entities named at paragraphs 9 through 17, above.” (See id. ¶ 10 (Columbia Group), 

¶ 11 (Tingley), ¶ 12 (Route 70), ¶ 13 (Brick), ¶ 14 (Applegarth), ¶15 (Martin Blvd.), ¶ 16 

(WWM), and ¶ 17 (Fulton Square)). Ford then alleged the following claims against 

“Edgewood”: Count I-Contribution Under the Spill Act (¶¶ 97-105); Count II-Cost Recovery and 

Contribution under CERCLA (¶¶ 106-126); Count III-Breach of Contract (¶¶ 127-135); Count 

IV-Fraud (¶¶ 136-166); Count V-Negligence (¶¶ 167-175); and Count VI-Unjust Enrichment (¶¶ 

176-183).

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On July 11, 2008, Edgewood moved under Rules 12(b)(6) and 12(f) to dismiss Ford’s 

claims. (D.E. 152 (11-1278)). On October 16, 2008, Judge Ackerman issued an opinion 

dismissing claims as follows: Count II dismissed as to all parties; Count III dismissed as to only 

the Related Entities based on Ford’s “failure to adequately plead alter-ego liability”; Count IV 

dismissed as to only the Related Entities based on Ford’s “failure to adequately plead alter-ego 

liability”; Count VI dismissed as to all parties. (D.E. 202 (11-1278) at 36). Judge Ackerman 

also held that “[a]ll other claims remain pending.” (Id.). Therefore, the following claims 

remained as against the Related Entities: Count I-Contribution Under the Spill Act and Count VNegligence. (See id.). 

On November 3, 2008, “Defendant Edgewood Properties, Inc. (‘Edgewood’), by and 

through its attorneys, answer[ed] Plaintiff Ford Motor Company’s (‘Ford’) First Amended 

Complaint.” (D.E. 204 (11-1278), the “Answer to Ford’s First Amended Complaint”). Under 

the heading “The Parties,” Edgewood and each of the Related Entities “admit[ted] that they are 

owned by the same individuals, but den[ied] that [each of the Related Entities] is an affiliate, 

subsidiary or otherwise related to Edgewood.” (Id. ¶ 10 (Columbia Group), ¶ 11 (Tingley), ¶ 12 

(Route 70), ¶ 13 (Brick), ¶ 14 (Applegarth), ¶ 15 (Martin Blvd.), ¶ 16 (WWM), and ¶ 17 (Fulton 

Square). Although Edgewood was careful about stating that “‘Edgewood’ shall only refer to 

Edgewood Properties, Inc.,” each Related Entity—on its own behalf—“further denie[d] all 

remaining allegations related to itself in this First Amended Complaint and further state[d] that it 

lack[ed] sufficient information or knowledge to form a belief as to the truth of all other 

allegations in this First Amended Complaint, and therefore denies them.” (Id. ¶ 10 (Columbia 

Group), ¶ 11 (Tingley), ¶ 12 (Route 70), ¶ 13 (Brick), ¶ 14 (Applegarth), ¶ 15 (Martin Blvd.), ¶ 

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16 (WWM), ¶ 17 (Fulton Square)) (emphasis added). The Related Entities did not assert 

counterclaims. (See id.). 

B. Second Amended Complaint

On July 10, 2009, “Plaintiff Ford Motor Company (‘Ford’ or ‘Plaintiff’), by its 

attorneys . . . [filed] its Second Amended Complaint against Edgewood Properties, Inc. 

(‘Edgewood’).” (D.E. 260 (11-1278), the “Second Amended Complaint”). As in the First 

Amended Complaint, Ford made clear, “[f]or purposes of this Second Amended Complaint, 

‘Edgewood’ shall include the entities named at paragraphs 8 through 17.” (Id. ¶ 9 (Columbia), ¶ 

10 (Tingley), ¶ 11 (Route 70), ¶ 12 (Brick), ¶ 13 (Applegarth), ¶ 14 (Martin Blvd.), ¶ 15 

(WWM), ¶ 16 (Fulton Square)). Ford further alleged that Edgewood, Applegarth, Brick, Route 

70, Fulton Square, Martin Blvd., Columbia Group, WWM, and Tingley “all have common 

principals and, with the exception of W.W.M. Properties, LLC, the same principal place of 

business. In addition, each of these companies own and/or operates one or more of the Seven 

Properties, and/or had control over the movement of concrete and/or fill to and between the 

properties.” (Id. ¶ 18). 

On July 27, 2009, “Defendant, Edgewood Properties, Inc. (‘Edgewood’), by and through 

its attorneys . . . file[d] its Answer to the Second Amended complaint filed by Plaintiff, Ford 

Motor Company (‘Ford’).” (D.E. 263 (11-1278), the “Answer to Ford’s Second Amended 

Complaint”). Under the heading “The Parties,” Edgewood and each of the following Related 

Entities “admit[ted] that they are directly or indirectly owned by one or more [sic] the same 

individuals, but den[ied] that [each of the Related Entities] is an affiliate, subsidiary or otherwise 

related to Edgewood.” (Id. ¶ 9 (Columbia Group), ¶ 10 (Tingley), ¶ 11 (Route 70), ¶ 13 

(Applegarth), ¶ 15 (WWM), ¶ 16 (Fulton Square)). On behalf of two of the Related Entities, 

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“Edgewood denie[d] that [the Related Entity] is an affiliate, subsidiary or otherwise related to 

Edgewood. Edgewood and [the Related Entity] admit that [the Related Entity] owns and/or 

controls one of the Seven Properties.” (Id. ¶ 12 (Brick), ¶ 14 (Martin Blvd.). Edgewood also 

“admit[ed] that Edgewood Properties, JSM at Applegarth, JSM at Brick, JSM at Route 70, 

Fulton Square Urban Renewal, JSM at Martin Blvd., Columbia Group, JSM at Tingley, and 

W.W.M. . . . have the same principal place of business.” (Id. ¶ 18). Although Edgewood was 

careful about stating that “‘Edgewood’ shall only refer to Edgewood Properties, Inc.,” each 

Related Entity—again, on its own behalf—“further denie[d] all remaining allegations relate[d] to 

itself in this Second Amended Complaint and further state[d] that it lack[ed] sufficient 

information or knowledge to form a belief as to the truth of all other allegations in this Second 

Amended Complaint, and therefore denies them.” (Id. ¶ 9 (Columbia Group), ¶ 10 (Tingley), ¶ 

11 (Route 70), ¶ 12 (Brick), ¶ 13 (Applegarth), ¶ 14 (Martin Blvd.), ¶ 15 (WWM), ¶ 16 (Fulton 

Square)) (emphasis added). The Related Entities, again, did not assert counterclaims. (See id.). 

C. Denial of Motion to Amend 

On March 12, 2010, Edgewood moved to amend to add counterclaims by the Related 

Entities against Ford MIG/A, EQ, Golder, and Arcadis. (D.E. 299 (11-1278) (“Edgewood 

Properties, Inc., together with certain entities with which it shares common 

ownership . . . respectfully seeks leave of this Court to file the [Proposed] Corrected First 

Consolidated Amended Counterclaims, Cross-Claims, First Amended Third-party Complaint, 

First Amended Complaint and Demand for Jury Trial.”)). On September 21, 2010, Judge Salas 

denied the motion. (D.E. 359 (11-1728)). At oral argument on the same day, counsel for 

Edgewood and the Related Entities argued: 

Those entities, we call them the entities with which Edgewood shares common 

ownership, had been named as parties by Ford when Ford filed its second 

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amended complaint in July of 2009. By virtue of the March 2010 version of our 

amended complaint, those entities have now come forward and said, we have 

claims, we are the owners of the properties on which the—to which the 

contaminated concrete was delivered, we have suffered injury, we want to assert 

these claims. 

(D.E. 359 (11-1728) at 26) (emphasis added). Judge Salas denied the motion, holding that 

adding these claims by the Related Entities and making them counterclaim plaintiffs at a late 

stage in the litigation “would cause undue delay and prejudice to the opposing parties.” (Id. at 

80). 

On April 27, 2011, Judge Martini affirmed the decision, “denying Edgewood’s motion 

for leave to file an amended complaint asserting claims on behalf of the ‘[Related] Entities’ as 

additional third-party plaintiffs.” (D.E. 486 (11-1278) at 1). Judge Martini noted that the heart 

of the decision “is Edgewood’s lack of explanation for why it spent the first four years of this 

litigation as the sole Third-Party plaintiff, knowing full well at least of the presence of the 

[Related] Entities, only to attempt to add them as third-party plaintiffs just as fact discovery is 

ending.” (Id. at 8) (emphasis added).2

 Regarding the Rule 13(a) ramifications of the decision, 

Judge Martini noted, “Edgewood argues on appeal that if the [Related] Entities are already 

considered parties in this lawsuit, their claims may be considered compulsory counterclaims that 

should be allowable under Rule 13.” (Id. at 12). In affirming the decision, Judge Martini found 

that “while any argument as to whether, or when, the [Related] Entities were added as parties 

may go to whether or not the [Related] Entities’ claims are compulsory counterclaims, it does not 

go to showing clear error on the part of Judge Salas in ruling that these third-party plaintiff 

claims could not be added at this point.” (Id. at 13). 

                                                            

2

 As the Court notes at length in Part III.B below, the Related Entities were already defendants in the Edgewood 

Action when they sought to rebrand themselves as third party plaintiffs to assert long overdue claims. 

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D. The Filing of This Action 

In response to the denial of their motion to amend, the Related Entities filed this separate 

action on January 25, 2011, asserting the claims against Ford and its co-parties that were denied 

by Judges Salas and Martini for undue delay. (D.E. 1 (11-448)). These claims—the ones at 

issue for purposes of this motion to dismiss—are as follows: Count I (Breach of Contract) 

Against Ford and Ford Land (¶¶ 182-190); Count II (Unjust Enrichment) Against Ford and Ford 

Land (¶¶ 191-198); Count III (Breach of Contract) Against Ford, Ford Land, and EQ (¶¶ 199-

208); Count IV (Fraud in the Inducement) Against Ford and Ford Land (¶¶ 209-244); Count V 

(New Jersey Consumer Fraud Act) Against Ford, Ford Land, and Golder (¶¶ 245-263); Count VI 

(CERCLA Cost Recovery) Against Ford, Ford Land, MIG/A, ACI, EQ, Golder, and Arcadis (¶¶ 

264-274); Count VII (New Jersey Spill Act) Against MIG/A, ACI, EQ, Golder, and Arcadis (¶¶ 

275-286); Count VIII (Negligent Misrepresentation) Against Ford, Ford Land, EQ, and Golder 

(¶¶ 287-306); Count IX (Negligence) Against Ford, Ford Land, MIG/A, ACI, EQ, Golder and 

Arcadis (¶¶ 307-310); Count X (Civil Conspiracy) Against Ford, Ford Land, MIG/A, ACI, EQ, 

Golder, and Arcadis (¶¶ 311-318); Count XI (NJ RICO) Against Ford, Ford Land, MIG/A, ACI, 

EQ, Golder, and Arcadis (¶¶ 319-382). 

On May 18, 2011, each of the Defendants in the present action moved separately to 

dismiss the claims against them on numerous grounds. 3 Some Defendants joined the arguments 

                                                            

3

 Because the Court considers Rule 13(a) to be of critical importance in the present case, the Court, in its 

accompanying Order, requests that MIG/A, EQ, Golder, and Arcadis supplement their briefs explaining whether 

they explicitly join in Ford’s Rule 13(a) arguments, and if so whether Rule 13(a) applies to the claims against them. 

Additionally, the Court grants leave to the Plaintiffs to supplement their opposition accordingly. Upon considering 

the parties’ additional briefing on Rule 13(a), the Court will address whether the following arguments are to be 

reached: EQ’s arguments that Count III must be dismissed because Plaintiffs are not intended beneficiaries under the 

relevant contract, that Count VIII must be dismissed because Plaintiffs’ negligent misrepresentation claim fails 

under Rules 9(b) and 8(a), and that Plaintiffs’ NJ RICO claim is barred by the statute of limitations (see EQ Moving 

Br., D.E. 47); MIG and ACI’s arguments that the JSM Complaint fails to allege any factual basis on which to assert 

any claims against MIG or ACI, that the doctrines of laches, waiver, and estoppel preclude Plaintiffs from asserting 

Count IX negligence, Count X civil conspiracy and Count XI NJ RICO, that the NJ RICO count is barred by the 

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of others, but it is unclear to the Court which parties explicitly joined Ford’s Rule 13(a) 

arguments, which the Court considers to be a dispositive threshold issue for dismissal of claims 

in this case. Ford’s lead argument—and the Court’s focus in this Opinion—is that the Related 

Entities’ claims in this action should have been raised as compulsory counterclaims under Rule 

13(a) in the Edgewood Action. Below, the Court explains why it agrees. 

II. LEGAL STANDARDS 

A. Rule 12(b)(6) 

For a complaint to survive dismissal, 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 S. Ct. 1937, 

1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In determining 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. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But, “the tenet that a court must 

accept as true all of the allegations contained in a complaint is inapplicable to legal 

conclusions[;] [t]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Additionally, in evaluating a 

plaintiff’s claims, generally “a court looks only to the facts alleged in the complaint and its 

attachments without reference to other parts of the record.” Jordan v. Fox, Rothschild, O’Brien 

& Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). 

                                                                                                                                                                                               

statute of limitations, and that Plaintiffs failed to name Edgewood as an indispensable party in the present action 

under Rule 19 (see MIG and ACI Moving Br., D.E. 48); Golder’s arguments that the NJ RICO claims were filed 

well outside the four year limitations period, that all claims are barred by laches, that the JSM Complaint fails under 

Rule 19 (see Golder Moving Br., D.E. 50); and Arcadis’s arguments that the Related Entities failed to state a claim 

under CERLA (Count VI) and the NJ Spill Act (Count VII), and that the NJ RICO count is time barred. (See 

Arcadis Moving Br., D.E. 51). The Court notes that it found persuasive—but, again, does not explicitly reach—

Defendants’ argument that Plaintiffs’ NJ RICO claims are barred by the four-year statute of limitations, because the 

Related Entities waited five-and-a-half years to bring the claims. (See, e.g., Ford’s Moving Br. at 28-29). 

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B. Rule 13(a) 

Rule 13(a) provides: “(1) In General. A pleading must state as a counterclaim any claim 

that—at the time of its service—the pleader has against an opposing party if the claim: (A) arises 

out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and 

(B) does not require adding another party over whom the court cannot acquire jurisdiction.” A 

party’s failure to raise compulsory counterclaims in the first action bars the party from instituting 

a second action in which that counterclaim is the basis of the complaint. See, e.g., Baker v. Gold 

Seal Liquors, Inc., 417 U.S. 467, 469 n.1 (1974 (“A counterclaim which is compulsory but is not 

brought is thereafter barred.”); S. Constr. Co. v. Pickard, 371 U.S. 57, 60 (1962) (“[Fed. R. Civ. 

P. 13 was] particularly directed against one who failed to assert a counterclaim in one action and 

then instituted a second action in which that counterclaim became the basis of the 

complaint.”). The policy underlying Rule 13 is “judicial economy.” Transamerica Occidental 

Life Ins. Co. v. Aviation Office of Am., Inc., 292 F.3d 384, 389 (3d Cir. 2002) (citing Fed. R. Civ. 

P. 1 (“[The Federal Rules of Civil Procedure] shall be construed and administered to secure the 

just, speedy, and inexpensive determination of every action.”)). The Supreme Court has stated 

that the purpose of Rule 13(a) is “to prevent multiplicity of actions and to achieve resolution in a 

single lawsuit of all disputes arising out of common matters.” S. Constr. Co. v. Pickard, 371 

U.S. 57, 60 (1962); see also Alden v. Packel, 524 F.2d 38, 51 (3d Cir. 1975) (describing “the 

fundamental policy underlying Rule 13” as “the expeditious resolution of all controversies 

growing out of the same transaction or occurrence or between the same parties in a single suit”). 

To determine if Rule 13(a) applies, the Court analyzes: whether the claim in question is 

one that “at the time of its service—the pleader has against an opposing party”; and whether the 

claim “arises out of the transaction or occurrence that is the subject matter of the opposing 

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party’s claim.” Fed. R. Civ. P. 13(a). Parties are “opposing” when claims are asserted against 

them, for example, when parties are named in the complaint. Additionally, “Rule 13(a) is not 

limited in its application to original parties.” Transamerica, 292 F.3d at 391 (quotation omitted). 

Instead, a “party may be so closely identified with a named party as to qualify as an ‘opposing 

party’ under Rule 13(a).” Id. at 390. For example, where a counterclaimant is on notice of an 

unnamed party’s interest in the litigation, is familiar with its identity, and where the named and 

unnamed parties bear a close relationship, the parties are “opposing parties” for purposes of Rule 

13(a). Id. at 392. When the closely related party has notice of its potential compulsory 

counterclaims, it is required to assert them or lose them. See id. The Third Circuit has adopted 

this broad interpretation to comport with judicial efficiency. See id. at 392 (“[C]ourts interpreted 

‘opposing party’ broadly for essentially the same reasons that courts have interpreted ‘transaction 

or occurrence’ liberally—to give effect to the policy rationale of judicial economy underlying 

Rule 13.”). 

With respect to the “transaction or occurrence” requirement, “a claim need only ‘bear[] a 

logical relationship to’ the subject matter of the complaint” to be part of the same “transaction or 

occurrence.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 836 n.9 (3d Cir. 2011) (quoting 

Xerox Corp. v. SCM Corp., 576 F.2d 1057, 1059 (3d Cir. 1978)). “Such a logical relationship 

exists where separate trials on each of the claims would involve a substantial duplication of 

effort and time by the parties and the courts.” Id. (quotation omitted). “Such a duplication is 

likely to occur when claims involve the same factual issues, the same factual and legal issues, or 

are offshoots of the same basic controversy between the parties.” Transamerica, 292 F.3d at 

389-90. “In short, the objective of Rule 13(a) is to promote judicial economy, so the term 

‘transaction or occurrence’ is construed generously to further this purpose.” Id.

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III. DISCUSSION 

A. Arguments by the Parties 

Generally, Ford argues that the Court should dismiss all claims against them in the JSM 

Complaint because the claims in the JSM Complaint were compulsory counterclaims under Rule 

13(a) that should have been asserted in the Edgewood Action in 2008 but were not.4

 (Ford 

Moving Br. at 9-10). With respect to whether the Related Entities are “opposing parties” in the 

Edgewood Action, Ford argues as follows. The Related Entities are opposing parties in the 

Edgewood Action because, in their First and Second Amended Complaints, Ford defined 

“Edgewood” as including each of the Related Entities individually. Ford then asserted claims 

against “Edgewood,” thereby asserting claims against Edgewood and each of the Related 

Entities. (Id. at 10; Ford Reply Br. at 15). With respect to whether the claims against 

“Edgewood” in the Edgewood Action are related to the same “transaction or occurrence” as the 

claims in this action, Ford argues that all of the claims in both actions arise out of “Edgewood’s 

procurement of RCA from the Edison Plant and unlawful use of that RCA at Plaintiffs’ 

properties.” (Ford Moving Br. at 11). Ford argues that despite the Related Entities’ opposing 

party status in the Edgewood Action, the Related Entities twice failed to assert compulsory 

counterclaims: first, when they answered the First Amended Complaint on November 3, 2008, 

and second, when they answered the Second Amended Complaint on July 27, 2009. Therefore, 

Ford concludes, the Related Entities are precluded from asserting those claims in the present 

action. 

                                                            

4

 Ford also argues that the entire complaint should be dismissed under the entire controversy doctrine, which 

“requires the joinder of all claims against a party arising from a single controversy.” (Ford Moving Br. at 11 (citing 

N.J. Ct. Rule 4:30A)). The Court does not reach the entire controversy doctrine because it finds that Rule 13(a) 

applies. 

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In their consolidated opposition brief, the Related Entities generally argue that the 

Related Entities have never been “opposing parties” in the Edgewood Action, and therefore Rule 

13(a) does not apply and the claims in the present action should survive dismissal. (Related 

Entities Opp. Br. at 62). Specifically, the Related Entities argue that they were not opposing 

parties on March 17, 2006 when Ford filed its initial complaint in the Edgewood action, so they 

were not permitted to bring counterclaims in the first answer on December 7, 2006. (Id.). The 

Related Entities then argue that Ford sought leave to file amended claims against only Edgewood 

(and not the Related Entities), and that on June 9, 2008, “Ford’s First Amended 

Complaint . . . specifies that it asserts claims against Edgewood alone,” because “[a]lthough 

Ford’s First Amended Complaint . . . identifies the individual Plaintiffs by name . . . it does not

identify them as ‘Defendants’ . . . [and] [t]hat rubric was reserved for Edgewood Properties, Inc.” 

(Id. at 63).5

 The Related Entities continue, “[t]he same analysis applies to Ford’s Second 

Amended Complaint against Edgewood,” and therefore “there was no requirement for Edgewood 

(let alone the Plaintiff[] [Related Entities]) to challenge such non-existent allegations, and 

Edgewood alone served an Answer . . . .” (Id. at 64). The Related Entities conclude that 

“[b]ecause the Plaintiff[] [Related Entities] filed no responsive pleading to either Ford’s First 

Amended Complaint . . . or Ford’s Second Amended Complaint in the Edgewood Action, the 

Plaintiffs’ failure to plead an alleged compulsory counterclaim in that case ‘does not bar’ their 

claims in the instant suit.” (Id. (quoting United States v. Snider, 779 F.2d 1151 (6th Cir. 1985), 

MRW, Inc. v. Big-O Tires, LLC, 2008 U.S. Dist. LEXIS 101902 (E.D. Cal. Nov. 25, 2008))). 

                                                            

5

 The Court notes here—but explains more completely below—that this argument rests on an incorrect reading of 

the First and Second Amended Complaints, in which Ford defined “Edgewood” as including the Related Entities, 

then alleged claims against defendant “Edgewood,” which explicitly included the Related Entities. (See supra Part 

I.A-B) (setting forth the facts as alleged in Ford’s First and Second Amended Complaints). 

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On reply, Ford reiterates that it asserted claims against the Related Entities in the First 

and Second Amended Complaints, and that the Related Entities failed to raise counterclaims in 

both of their Answers, thereby precluding the Related Entities from raising the same claims in 

the present action. (Ford Reply Br. at 15). “All of the Plaintiffs filed responsive pleadings in the 

Edgewood Action and each denied the allegations in Ford’s First and Second Amended 

Complaints . . . . In so answering, Plaintiffs were required to, but did not file compulsory 

counterclaims.” (Id.). 

B. Rule 13(a) Analysis Part I: Opposing Party 

The Court finds that Ford was an opposing party to the Related Entities in the Edgewood 

Action for purposes of Rule 13 at the time when the First and Second Answers to Ford’s First 

and Second Amended Complaints were served. Ford and the Related Entities were, in fact, 

opposing parties because Ford explicitly asserted claims against the Related Entities in the First 

and Second Amended Complaints, and the Related Entities answered those claims by explicitly 

denying them in the Answers to Ford’s First and Second Amended Complaints on their own 

behalf.6

 

                                                            

6

 Even assuming arguendo that claims had been asserted only against Edgewood (and not the Related Entities), and 

that the Related Entities had not explicitly denied the claims on two separate occasions, the parties’ close logical 

relationship could have provided them with sufficient notice of the claims under the Third Circuit’s broad definition 

of the term in Transamerica. See 292 F.3d 392-93. The Court notes, at the outset, that it stops short of deciding 

whether Transamerica applies to the relationships among parties in this action because the parties do not squarely 

raise the issue in their briefs. Oddly, the Related Entities raise Transamerica in their opposition brief in a footnote, 

arguing as follows: 

Under certain circumstances, such as Ford’s successful averment that the Plaintiffs were the “alter 

egos” of Edgewood, Rule 13(a) would arguably have required the Plaintiffs to assert their claims 

as counterclaims to Ford’s First Amended Complaint [Corrected]. See Transamerica [],292 F.2d 

[at] 390-391. In this case, however, Judge Ackerman correctly held that Ford failed to allege any 

basis upon which the Plaintiffs could be found to be “alter egos” of Edgewood. (Related Entities 

Moving Br. at 64 n.15). 

The Court doubts that Transamerica can be so quickly dismissed, especially considering Judge Alito’s rationale that 

the broad definition of “opposing party” applied because of the fact that the unnamed party in the first action was 

“aware of the identity of interests” between the unnamed party and the plaintiffs in the first action. Id. at 392. 

Indeed, it was “significant” in Transamerica “that the insurer, IIC, was actually the party controlling the litigation in 

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In their opposition brief, the Related Entities assert their core argument that “[a]lthough 

Ford’s First Amended Complaint . . . identifies the individual Plaintiffs by name . . . it does not 

identify them as ‘Defendants.” (Related Entities Opp. Br. at 63). The Court rejects this 

argument for two reasons. First, a party becomes a defendant when the action’s architect asserts 

claims against a party whether or not the complaint uses the word “Defendant” to describe them, 

and second, the allegations in the Amended Complaints directly contradict the Related Entities’ 

argument that they were not named as defendants in the Edgewood Action. 

A “defendant” is “[a] person sued in a civil proceeding or accused in a criminal 

proceeding.” See Black’s Law Dictionary (9th ed. 2009). Counsel for Plaintiffs clearly 

recognized this fact before Judge Salas ruled from the bench on September 17, 2010, denying the 

Related Entities’ motion to amend in the Edgewood Action. (See D.E. 359 at 78 (“I will say, 

Your Honor, there has been . . . suggestion that we’re attempting to add new parties. We’re not 

adding new parties. I want to make that perfectly clear. These parties are in the litigation. Ford 

added them to the litigation.”)). The Court agrees that the Related Entities were defendants in 

the Edgewood Action. 

Both the First and Second Amended Complaints in the Edgewood Action clearly asserted 

claims against Edgewood and the Related Entities, who denied allegations against them, and 

then failed to assert any counterclaims in their Answers to Ford’s First and Second Amended 

                                                                                                                                                                                               

both actions.” Id. In the present case, Edgewood and each of the Related Entities “admit[ted] that they are owned 

by the same individuals,” (Answer to Ford’s First Amended Compl. ¶¶ 10-17), and that “Edgewood Properties, JSM 

at Applegarth, JSM at Brick, JSM at Route 70, Fulton Square Urban Renewal, JSM at Martin Blvd., Columbia 

Group, JSM at Tingley, and W.W.M. . . . have the same principal place of business.” (Answer to Ford’s Second 

Amended Compl. ¶ 18). Additionally, Judge Martini found in the Edgewood Action that Edgewood “kn[ew] full 

well at least of the presence of the [Related] Entities,” and that “at the very least Edgewood’s in-house counsel 

should have been aware of the corporate entities and of their rights.” (D.E. 486 (11-1278) at 1, 8). Finally, it is 

difficult for the Related Entities to argue now that they would not have had notice of the relevant claims in light of 

counsel’s own acknowledgement that the Related Entities were parties to the Edgewood Action. (See D.E. 359 at 

78:10-13 (“I will say, Your Honor, there has been . . . suggestion that we’re attempting to add new parties. We’re 

not adding new parties. I want to make that perfectly clear. These parties are in the litigation. Ford added them to 

the litigation. What we are attempting to do now . . . . [is] file[] those party’s [sic] counterclaims.”)). 

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Complaints. As to the First Amended Complaint, Ford made clear that its claims included 

allegations against the Related Entities. The June 9, 2008 First Amended Complaint defined 

“Edgewood” as including Columbia Group, Tingley, Route 70, Brick, Applegarth, Martin Blvd., 

WWM, and Fulton Square. (First Amended Compl. ¶ 18 (alleging that “[f]or purposes of this 

First Amended Complaint, ‘Edgewood’ shall include the entities named at paragraphs 9 through 

17, above,” then listing Columbia Group (¶ 10), Tingley (¶ 11), Route 70 (¶ 12), Brick (¶ 13), 

Applegarth (¶ 14), Martin Blvd. (¶15), WWM (¶ 16), and Fulton Square (¶ 17)). Following the 

survival of contribution and negligence claims against Edgewood and the Related Entities in the 

wake of Judge Ackerman’s ruling on a motion to dismiss, (D.E. 202 (11-1278)), each Related 

Entity answered on its own behalf, “den[ying] all remaining allegations related to itself in this 

First Amended Complaint and further stat[ing] that it lack[ed] sufficient information or 

knowledge to form a belief as to the truth of all other allegations in this First Amended 

Complaint, and therefore denies them.” (Answer to Ford’s First Amended Compl. ¶ 10 

(Columbia Group), ¶ 11 (Tingley), ¶ 12 (Route 70), ¶ 13 (Brick), ¶ 14 (Applegarth), ¶ 15 (Martin 

Blvd.), ¶ 16 (WWM), ¶ 17 (Fulton Square)) (emphasis added). Therefore, Ford asserted claims 

against the Related Entities in its First Amended Complaint, and the Related Entities answered 

when each of them individually denied all allegations on its own behalf. 

As to the July 10, 2009 Second Amended Complaint, Ford again made clear, “[f]or 

purposes of this Second Amended Complaint, ‘Edgewood’ shall include the entities named at 

paragraphs 8 through 17.” (Second Amended Compl. ¶ 19 (including Columbia (¶ 9), Tingley (¶ 

10), Route 70 (¶ 11), Brick (¶ 12), Applegarth (¶ 13), Martin Blvd. (¶ 14), WWM (¶ 15), Fulton 

Square (¶ 16))). On July 10, 2009, each of the Related Entities again answered on its own 

behalf, listing its specific admissions and denials. (See Answer to Ford’s Second Amended 

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18 

Compl. ¶¶ 9-16). These admissions and denials clearly constituted answers under Rule 8(b). See 

Fed. R. Civ. P. 8(b) (“Defenses; Admissions and Denials. (1) In General. In responding to a 

pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted 

against it; and (B) admit or deny the allegations asserted against it by an opposing party.”) 

(emphasis added). Therefore, based on the claims asserted against them in the Edgewood 

Action, and their explicit denial of allegations in their Answers to Ford’s First and Second 

Amended Complaints, the Related Entities cannot credibly argue that Ford was not an opposing 

party in the Edgewood Action.7

Despite their denial of specific allegations in their Answers to Ford’s First and Second 

Amended Complaints, the Related Entities argue that they never answered, and therefore Rule 

13(a) does not apply and the Related Entities are free to bring claims in an entirely new action. 

(See Related Entities Opp. Br. at 65 (“[T]he bar to future suit does not arise if the defendant in 

the prior action did not file a responsive pleading. . . . [and] [b]ecause the Plaintiffs filed no 

responsive pleading to either Ford’s First Amended Complaint . . . or Ford’s Second Amended 

                                                            

7

 Oddly, the Related Entities attempt to rest their Rule 13(a) argument on a premise—and, indeed, two specific 

decisions—that the Third Circuit has explicitly rejected. At the outset of their Rule 13(a) argument, the Related 

Entities argue, “[i]n the Edgewood Action, Ford’s original Complaint . . . only asserted claims against ‘Defendant 

Edgewood Properties, Inc. . . . . [t]hus, because the Plaintiffs were not ‘opposing parties’ to Ford, they were not 

eligible to bring counterclaims against Ford and they were not within the scope of Rule 13.” (Related Entities Opp. 

Br. at 62). In support of this argument, the Related Entities cite to a 1964 decision from the Tenth Circuit and a 

1984 decision from the Southern District of Ohio for their narrow definitions limiting “opposing party” to parties 

against whom claims are alleged in the original complaint. (See id. (citing, e.g., First Nat’l Bank v. Johnson Cnty. 

Nat’l. Bank & Trust Co., 331 F.2d 325, 328 (10th Cir. 1964); Cincinnati Milacron Industries, Inc. v. Aqua Dyne, 

Inc., 592 F. Supp. 1113 (S.D. Ohio 1984)). In Transamerica, the Third Circuit rejected not only this narrow 

interpretation of “opposing party” but also these two cases specifically: 

A narrow interpretation of “opposing party” would lead us to read it strictly as a named party who 

“asserts a claim against the prospective counter-claimant in the first instance.” First Nat’l. Bank v. 

Johnson Cnty. Nat’l. Bank & Trust Co., 331 F.2d 325, 328 (10th Cir. 1964); see also Cincinnati 

Milacron Industries, Inc. v. Aqua Dyne, Inc., 592 F. Supp. 1113 (S.D. Ohio 1984) (finding that 

Rule 13(a) did not permit the filing of a compulsory counterclaim against Cincinnati Milacron 

Industries, Inc. because it was not a party to the litigation against Milacron Marketing Company, a 

separate corporate entity from Cincinnati Milacron Industries, Inc.). 

Transamerica, 292 F.3d at 390. The Court therefore rejects the Related Entities’ argument and their reliance on 

these decisions. 

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Complaint in the Edgewood Action, the Plaintiffs’ failure to plead an alleged compulsory 

counterclaim in that case ‘does not bar’ their claims in the instant suit.”)). In support of their 

argument, the Related Entities cite two out-of-Circuit decisions. (See id. (citing United States v. 

Snider, 779 F.2d 1151, 1157 (6th Cir. 1985) and MRW, Inc. v. Big-O Tires, LLC, No. 08-1732, 

2008 WL 5113782 (E.D. Cal. Nov. 26, 2008))). The Court finds neither case persuasive because 

neither is on point. 

In Snider, the Sixth Circuit found that Rule 13(a) “only requires a compulsory 

counterclaim if the party who desires to assert a claim has served a pleading.” Snider, 779 F.2d 

at 1157. In that case, a doctor suspected of accepting illegal Medicare reimbursements sued the 

government seeking declaratory judgment that the government was not entitled to stop future 

reimbursements to the doctor, which would put him out of business. Both parties agreed to an 

expedited timeline and the Court advanced hearing on the physician’s preliminary injunction and 

consolidated it with trial on the merits. Id. at 1156. The district court set an expedited briefing 

schedule and the government filed a motion to dismiss a week later without asserting any 

counterclaims against the doctor for past payments. Later, in a separate action, the government 

filed these claims for past payment, and the doctor moved for dismissal under Rule 13(a). The 

Sixth Circuit affirmed the district court’s decision that the second case should not have been 

dismissed because the government’s motion to dismiss the first action did not constitute a 

pleading under Rule 13(a), reasoning that “proof in the second case consisted of voluminous 

records of claims and payments, none of which was necessary for determination of the injunction 

issue.” Id. Because of the expedited nature of the preliminary injunction in the first case, the 

government never filed—nor should it have been required to file—a proper answer, and 

therefore its claims for past payment in the second case properly survived. Id. at 1157 (“[W]here 

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the rules do not require a pleading either because of pending motions or because the usual 

process by which the issues are formed has been displaced by the accelerated process permitted 

under Rule 65, the compulsory counterclaim requirement of Rule 13(a) is inapplicable.”). 

The present case is wholly distinguishable for three reasons. First, the Edgewood action 

was not an expedited preliminary injunction set for trial in a matter of months. Instead, the 

Edgewood Action was filed in 2006 and continues now. Second, unlike in Snider, the Related 

Entities joined in a responsive pleading to the First and Second Amended Complaints in the 

Edgewood Action when they denied allegations in the First and Second Answers. Third, proof 

in the present case would consist of much of the same discovery materials as in the Edgewood 

Action.8

 Therefore, the Court finds that the non-pleading rationale undergirding Snider and 

similar decisions does not apply to cases where, as here, defendants in the first action filed a 

responsive pleading in which they could have—but chose not to—file counterclaims.9

Additionally, for two independent reasons the Court rejects the Related Entities’ implicit 

argument that their denials of allegations in the First and Second Amended Complaints were not 

answers because the Answers themselves were Edgewood’s pleadings alone. First, this 

                                                            

8

 The Court clarifies that the fact that the present case and the Edgewood Action would implicate similar discovery 

materials does not mean that the Parties in the present case would not have to review the entirety of these materials a 

second time to defend against the Related Entities’ claims. Additionally, re-hashing the same discovery disputes 

with which the Court has wrestled for the past five years in an entirely new action would severely undercut Rule 

13’s underlying rationale of judicial economy. 

9

 The Court finds the Related Entities’ reliance on the Central District of California’s decision in MRW, Inc. v. BigO Tires, LLC to be similarly misplaced for two reasons. First, in MRW, the court found that “although the past and 

present claims share the same players, the operative facts underlying the particular claims differ. For the most part, 

the past and present claims concern conduct that occurred at different times, separated by the adoption of the 

franchise agreement.” MRW, 2008 WL 5113782, at *7. Here, in contrast, as discussed below, the Edgewood action 

and the present action arise from the same transaction or occurrence. Second, in MRW, defendants in the first action 

never filed a responsive pleading, and as discussed, the Related Entities have. See id. at *10 (“Here, both of the 

parties’ prior suits concluded without a responsive pleading. Defendant and plaintiff MRW settled the first case by 

stipulated judgment prior to the time when plaintiff would have been required to file an answer. . . . Similarly, in the 

second lawsuit, MRW successfully filed for a motion to dismiss Big-O Tires claims and was never required to serve 

an answer.”). The Court is also aware of decisions in this District that stand for a similarly distinguishable 

proposition. See, e.g., E.H. Yachts, LLC v. B&D Boatworks, Inc., No. 06-164, 2006 WL 3068560, at *3 (D.N.J Oct. 

27, 2006) (finding that filing a motion to dismiss does not waive compulsory counterclaims). 

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argument is belied by the Federal Rules and fundamental definitions related to civil procedure. 

See Fed. R. Civ. P. 7(a) (defining “pleadings” as including “(2) an answer to a complaint”); 

Black’s Law Dictionary (9th ed. 2009) (defining “pleading” as “[a] formal document in which a 

party to a legal proceeding (esp[ecially] a civil lawsuit) sets forth or responds to allegations, 

claims, denials, or defenses”) (emphasis added); id. (defining “answer” as “[a] defendant’s first 

pleading that addresses the merits of the case, usu[ally] by denying the plaintiff’s allegations”) 

(emphasis added). 

Second, to permit a party to be considered a “party” to the action for purposes of denying 

allegations, but not for purposes of Rule 13(a) would be to allow that party to follow the Federal 

Rules only when it suits their strategy. For example, accepting the Related Entities’ argument 

that they were never parties to the Edgewood Action because they only denied allegations 

against them in Edgewood’s answer would give the Related Entities all of the benefits of 

pleading practice with none of the burdens. The parties could remain passive participants in one 

action, reserving the right to become active participants in a second action any time in the future. 

All the while, the Court and the other parties would be left to guess when additional discovery 

would be requested to support additional defenses in an entirely separate, yet closely and 

logically related action. The Court’s facilitation of such a strategy would undercut the guiding 

principles of the Federal Rules generally and of Rule 13(a) specifically. See S. Constr. Co. v. 

Pickard, 371 U.S. 57, 60 (1962) (finding that the purpose of Rule 13(a) is “to prevent 

multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of 

common matters”); Transamerica, 292 F.3d at 393 (“[A]djudicating these issues at once is 

consistent with the approach to judicial economy underlying the Federal Rules of Civil 

Procedure.”); Xerox Corp. v. SCM Corp., 576 F.2d 1057, 1059 (3d Cir. 1978) (explaining that 

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Rule 13(a) promotes judicial economy because allowing separate trials on related claims would 

“involve a substantial duplication of effort and time by the parties and the courts”).10

Accordingly, the Court finds that Ford and the Related Entities were “opposing parties” 

in the Edgewood Action, and that the Related Entities answered on their own behalf by denying 

allegations without asserting counterclaims.11

C. Rule 13(a) Analysis Part II: Same Transaction or Occurrence 

There is no question that the claims in the Edgewood Action and the present action arise 

out of the same transaction or occurrence, because both actions arise out of Edgewood’s 

procurement of RCA from the Edison Plant and unlawful use of that RCA at the Seven 

Properties owned by the Related Entities. Rule 13(a) does not even require such a close 

similarity as the one in the present case. See Transamerica, 292 F.3d at 390 (“In short, the 

objective of Rule 13(a) is to promote judicial economy, so the term ‘transaction or occurrence’ is 

                                                            

10 To the extent the Related Entities argue that new materials discovered in the course of the Edgewood Action 

warrant an entirely new case almost five years later, the Court notes that Judge Martini already foreclosed a similar 

argument in his affirmance of the denial of the Related Entities’ motion to amend their claims in the Edgewood 

Action. (D.E. 486 (11-1278) at 6-7 (affirming Judge Salas’s finding that “Edgewood has failed to provide any detail 

as to what it discovered in the course of the recent depositions and written discovery that would warrant this Court[] 

allowing the proposed amendments at this late stage in the litigation”)). Indeed, permitting the Related Entities to 

institute an entirely new action based as the same transaction or occurrence as the one in the action where they were 

denied leave to amend would eviscerate the implications of Rule 13(a). 

11 In footnotes, the Related Entities bring additional arguments that the Court addresses briefly here. First, the 

Related Entities argue, “there is no entry in the docket for the Edgewood Action showing that Ford ever served its 

First Amended Complaint . . . let alone summonses, upon the individual Plaintiffs.” (Related Entities Opp. Br. at 63 

n.63). The Related Entities add, “there is no showing in the record that Ford ever served its Second Amended 

Complaint on the individual Plaintiffs. Moreover, if Ford’s assertions were correct, it is undisputed that the Answer 

to Ford’s Second Amended Complaint was served by Edgewood only. If Ford’s Second Amended Complaint 

asserted legal claims against the Plaintiffs, and if the latter failed to respond to such claims, why didn’t Ford seek a 

default judgment against them?” (Id. at 64 n.16). As to the latter point, the Court does not presume to guess why 

default judgment was never sought or what strategy led the Related Entities—on at least two separate occasions—to 

deny allegations without bringing counterclaims. As to the former point, any affirmative defense in the Edgewood 

Action relating to failure of service is not properly before the Court in this action. See Fed. R. Civ. P. 12(b)(5) (“A 

motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a 

pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial 

any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or 

objections in a responsive pleading or in a motion.”). 

 

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construed generously to further this purpose.”); see also Vukich v. Nationwide Mut. Ins. Co., 68 

F. App’x 317, 319 (3d Cir. 2003) (affirming the district court’s dismissal of the complaint in the 

second action based on its logical relationship to the claims in the first action because “[a] 

comparison of the two lawsuits quickly yields” that the breach of employment claims in the first 

action were logically related to the same employment contract at issue in the second action). 

Similarly here, the Court finds that each of the claims against Ford in the present action arise out 

of the same transaction or occurrence as the claims in the Edgewood Action because both sets of 

claims relate to contracts—and actions surrounding those contracts—regarding Edgewood’s 

procurement of RCA. 

Count I of the JSM Complaint (Breach of Contract) against Ford and Ford Land (¶¶ 182-

190) relates to Edgewood’s procurement of RCA because the contract at issue is the Edgewood 

Zero-Dollar Sales Agreement, the agreement under which Edgewood received crushed concrete. 

This document is the core document in the Edgewood Action, as it would be in this one. 

Count II (Unjust Enrichment) against Ford and Ford Land (¶¶ 191-198) and Count III

(Breach of Contract) against Ford, Ford Land, and EQ (¶¶ 199-208) both relate to Edgewood’s 

procurement of RCA because the claims are based on the fact that “EQ and Ford entered into the 

Second Contract to provide concrete, containing specified levels of contaminants, to Edgewood.” 

(Id. ¶ 346). The Second Contract is also a core document in the Edgewood Action. 

Count IV (Fraud in the Inducement) against Ford and Ford Land (¶¶ 209-244) “aris[es] 

out of the crushed concrete Plaintiffs allowed to be delivered to the Seven Properties under the 

Edgewood Zero-Dollar Sales Agreement and/or the ‘Second Contract.’” (Id. ¶ 209). Therefore, 

as in Count I, the transaction or occurrence requirement is met. 

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Count V (New Jersey Consumer Fraud Act) against Ford, Ford Land, and Golder (¶¶ 

245-263) relates to Edgewood’s procurement of RCA because the JSM Complaint alleges, “[i]n 

negotiating and contracting to provide Edgewood with residential (or unrestricted use) crushed 

concrete while intentionally giving Edgewood (and, foreseeably, Plaintiffs) commercial (or 

restricted use) and above crushed concrete, Ford, along with representatives and/or agents of 

MIG/A, Golder, Arcadis, and/or EQ engaged in unconscionable commercial practices, deception, 

fraud, false pretenses, false promises, misrepresentations, and the knowing concealment, 

suppression, or omission of material facts because Ford, Golder, and/or EQ knowingly 

misrepresented the quality of the crushed concrete.” (Id. ¶ 247). Costs in response to 

contaminated RCA clearly meet the transaction or occurrence test. 

Count VI (CERCLA Cost Recovery) against Ford, Ford Land, MIG/A, ACI, EQ, Golder, 

and Arcadis (¶¶ 264-274) relates to Edgewood’s procurement of RCA because the claim focuses 

on the allegation that “Ford, Ford Land, MIG/A, ACI, EQ, Golder and Arcadis arranged for 

disposal or treatment of hazardous substances, namely, PCB- and other-contaminated concrete, 

at the Related Entities under 42 U.S.C. § 9607(a)(3).” (Id. ¶ 268). The Count also focuses on 

the allegation that “Ford, Ford Land, MIG/A, ACI, EQ, Golder and Arcadis are jointly and 

severally liable for all response costs incurred by Plaintiffs” based on “the distribution of 

contaminated crushed concrete to Edgewood without the proper permits and approval letters.” 

(Id. ¶ 273-74). 

Count VII (New Jersey Spill Act) against MIG/A, ACI, EQ, Golder, and Arcadis (¶¶ 

275-286) relates to Edgewood’s procurement of RCA because under this claim, the Related 

Entities seek contribution related to the parties’ alleged failure under the New Jersey Spill Act to, 

among other things, “properly and adequately test the concrete . . . to notify . . . authorities that 

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the concrete was contaminated [and] . . . to request the proper permits to transfer the concrete to 

Edgewood.” (Id. ¶ 284).12

Count VIII (Negligent Misrepresentation) against Ford, Ford Land, EQ, and Golder (¶¶ 

287-306) relates to Edgewood’s procurement of RCA because the Defendants’ allegedly 

“recklessly and/or negligently disregarded” their duty to “Edgewood and Plaintiffs, as recipients 

and users of the concrete . . . to disclose hidden defects in the crushed concrete of which Ford, 

EQ and/or Golder was or should have been aware.” (Id. ¶ 289). 

Count IX (Negligence) against Ford, Ford Land, MIG/A, ACI, EQ, Golder and Arcadis 

(¶¶ 307-310) relates to Edgewood’s procurement of RCA because the claim relates to “loading 

and disposal of the concrete in a reasonable and safe manner.” (Id. ¶ 308). 

Count X (Civil Conspiracy) against Ford, Ford Land, MIG/A, ACI, EQ, Golder, and 

Arcadis (¶¶ 311-318) relates to the subject matter of Ford’s claims in the Edgewood Action 

because the core of this claim is that “Ford, MIG/A, Golder, Arcadis and EQ conspired to 

commit a fraud on Plaintiffs, Edgewood and others by entering into a conspiratorial agreement to 

induce Plaintiffs, Edgewood and others to accept crushed concrete by knowingly misrepresenting 

to Edgewood, and indirectly misrepresenting to Plaintiffs, the quality of the concrete.” (Id. ¶ 

312). 

Count XI (NJ RICO) against Ford, Ford Land, MIG/A, ACI, EQ, Golder, and Arcadis 

(¶¶ 319-382) similarly relates to the claims in the Edgewood Action because the allegation is 

based on the fact that “Ford, MIG/A, Golder, Arcadis and EQ formed an enterprise with the 

intent of distributing concrete that they knew was contaminated in violation of environmental 

regulations.” (Id. ¶ 320). 

                                                            

12 The Court notes that it reserves judgment on whether this claim is dismissed in light of the fact that it is not 

alleged against Ford 

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All of the claims in the present action against Ford bear the requisite logical relationship 

to claims in the Edgewood Action that should have been raised by the Related Entities, but were 

not. Each claim against Ford in this action implicates the same evidence related to the contracts 

and actions at issue in the Edgewood Action. Great Lakes Rubber Corp. v. Herbert Cooper Co., 

286 F.2d 631, 634 (3d Cir. 1961) (“[A] counterclaim is logically related to the opposing party’s 

claim where separate trials on each of their respective claims would involve a substantial 

duplication of effort and time by the parties and the courts.”); see also Banks v. Moore, 214 F. 

App’x 164, 165-66 (3d Cir. 2007) (finding that plaintiff “was required to raise . . . compulsory 

counterclaims under Rule 13” because the first and second actions both related to an “agreement 

for the manufacture, distribution, and retail promotion of a music CD”); Metro. Life Ins. Co. v. 

Kubichek, 83 F. App’x 425, 430-31 (3d Cir. 2003) (“[Plaintiff’s] potential breach of fiduciary 

duty claims against MetLife and GM were compulsory counterclaims that should have been 

asserted in the [previous] interpleader action. Brennan’s contention that MetLife and/or GM 

misplaced, mishandled, or lost the decedent’s 1991 enrollment form clearly bears a logical 

relationship to the claims in that action—the existence of that form was the crucial issue in 

determining whether the decedent designated Brennan as the beneficiary of his optional 

policy.”); Vukich, 68 F. App’x at 319 (“A comparison of the two lawsuits quickly yields the 

conclusion that the claims made in this suit are logically related.”). 

D. Ramifications of Failure to Raise Compulsory Counterclaims 

in the First Action 

A party’s failure to raise compulsory counterclaims in the first action bars the party from 

instituting a second action in which that counterclaim is the basis of the complaint. See, e.g., 

Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 n.1 (1974 (“A counterclaim which is 

compulsory but is not brought is thereafter barred.”); S. Constr. Co. v. Pickard, 371 U.S. 57, 60 

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(1962) (“[Fed. R. Civ. P. 13 was] particularly directed against one who failed to assert a 

counterclaim in one action and then instituted a second action in which that counterclaim became 

the basis of the complaint.”); 3 Moore’s Federal Practice § 13.14[1] (3d ed. 2011) (“Generally, 

the timing of a counterclaim and its classification as compulsory do not become vital until a 

second action is brought, in which the pleader attempts to raise a claim based on the same 

transaction or occurrence that was the basis of the first suit, and the opposing party moves to 

dismiss it as barred. While the text of Rule 13 does not explicitly state the prohibition, a claim 

that was compulsory in a prior suit is barred in a subsequent action based on the same claim.”). 

Ford and the Related Entities were opposing parties in the Edgewood Action by virtue of 

the claims alleged against the Related Entities in the First and Second Amended Complaints as 

well as the Related Entities’ subsequent denials. All of Plaintiffs’ claims against Ford in the 

present case arise out of the same transaction or occurrence that is the subject matter of the 

claims in the Edgewood Action. Because Plaintiffs never brought their compulsory 

counterclaims in a timely manner in the Edgewood Action, Plaintiffs are barred from 

circumventing previous orders by the Court and bringing those same claims in the present action. 

Because it would be futile to amend these claims in the current action, the Court dismisses all 

claims in the current complaint—as against Ford—with prejudice. See, e.g., Moose Mt. Mktg., 

Inc. v. Alpha Int’l, Inc., No. 03-4035, 2005 U.S. Dist. LEXIS 37581, at *5, 7 (D.N.J. Dec. 28, 

2005) (dismissing plaintiff’s complaint with prejudice based on its failure to assert compulsory 

counterclaims in the still pending first action arising out of the same transaction or occurrence). 

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IV. CONCLUSION 

For the above reasons, the Court GRANTS Ford Motor Company and Ford Motor Land 

Development Corporation’s motion to dismiss for failure to bring compulsory counterclaims 

under Rule 13(a) (D.E. 52), and dismisses the claims against these parties with prejudice. The 

Court DENIES the following motions without prejudice granting leave for amended briefing per 

the accompanying Order: EQ Northeast Inc. (D.E. 47), MIG/Alberici, L.L.C. and Alberici 

Constructor Inc. (D.E. 48), Golder Associates, Inc. (D.E. 50), Arcadis U.S., Inc. (D.E. 51). 

s/Esther Salas x 

Esther Salas, U.S.D.J.

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