WATKINS v. DINEEQUITY, INC. et al

Filing 46

OPINION. Signed by Chief Judge Jerome B. Simandle on 1/30/2013. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CANDICE WATKINS, on behalf of
herself, and all others
similarly situated,

HON. JEROME B. SIMANDLE
Civil No. 11-7182 (JBS/AMD)

Plaintiff,
OPINION
v.
DINEEQUITY, INC., et al.,
Defendants.

APPEARANCES:
Wesley Glenn Hanna, Esq.
Sander D. Friedman, Esq.
LAW OFFICE OF SANDER D. FRIEDMAN, LLC
125 North Route 73
West Berlin, NJ 08091
Counsel for Plaintiff
John B. Kearney, Esq.
Christopher Neal Tomlin, Esq.
BALLARD SPAHR LLP
210 Lake Drive East
Suite 200
Cherry Hill, NJ 08002
Counsel for Defendants
SIMANDLE, Chief Judge:
I.

INTRODUCTION
Plaintiff Watkins brings this putative class action

alleging that Defendants DineEquity, Inc., and Applebee’s
International, Inc., d/b/a Applebee’s Neighborhood Grill & Bar
(“Applebee’s”), d/b/a International House of Pancakes, LLC
(“IHOP”), violated New Jersey’s Truth-in-Consumer Contract,

Warranty and Notice Act (“TCCWNA”), N.J. Stat. Ann. § 56:12-14,
et seq., by omitting the price of soda, beer, wine, coffee and
other drinks from their restaurant menus. [First Am. Compl. ¶
10.]
There are two motions before the Court: Plaintiff’s motion
for reconsideration of this Court’s dismissal of the First
Amended Complaint1 [Docket Item 34] and Defendants’ motion to
dismiss Plaintiff’s Second Amended Complaint. [Docket Item 42.]
The key issues are whether the Court overlooked controlling
precedent and made a clear error of law in its previous Opinion,
and, if not, whether Plaintiff’s Second Amended Complaint pleads
additional facts that would support a plausible claim under the
TCCWNA. Because the Court finds that it did not overlook any
controlling precedent, the motion for reconsideration will be
denied, and because Plaintiff did not add new factual content to
her Second Amended Complaint, the motion to dismiss will be
granted.
II.

Background
Plaintiff alleges that she purchased soft drinks and beers

at Applebee’s and IHOP restaurants and that prices for the
beverages were not listed on the menus. [First Am. Compl. ¶ 13.]
Plaintiff claims that, under New Jersey law, Defendants must

1

See Watkins v. DineEquity, Inc., No. 11-7182, 2012 WL
3776350 (D.N.J. Aug. 29, 2012) (dismissing the First Amended
Complaint without prejudice).
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communicate the price of all items at the point where the
merchandise is offered for sale and that failure to do so is a
violation of the TCCWNA.2 [Id. ¶¶ 23-25.]
Defendants removed the action to this Court and, upon
Defendants’ motion, the Court dismissed the First Amended
Complaint without prejudice. See Watkins, 2012 WL 3776350, at *7*10. The Court determined that a restaurant menu fit within the
definitions of a “notice,” a “sign,” or both, for the purposes of
the TCCWNA. Id. at *6. But after considering the text of the
statute, its legislative history, and state and federal case law,
the Court ultimately concluded that the omission of prices from
the menus did not trigger the TCCWNA. “Because omitting certain
prices from restaurant menus does not pose the same risk of
misleading a consumer into failing to enforce her legal rights as
an affirmative misrepresentation, the Court finds the New Jersey
Legislature did not intend NJTCCWNA to apply to price omission.”
Id. at *9. In light of this holding, the Court declined to
consider whether the omission of prices from menus violated

2

As recounted in the Court’s previous Opinion, Plaintiff
originally brought a second claim under New Jersey’s Consumer
Fraud Act (“CFA”), N.J. Stat. Ann. § 56:8-1, et seq., but
eliminated the CFA count from the First Amended Complaint.
[Compare Docket Item 1 with Docket Item 20; see also Watkins,
2012 WL 3776350, at *7-*8 (discussing that the First Amended
Complaint did not plead a CFA claim and that “it does not appear
Ms. Watkins would succeed on a CFA claim under the Dugan
rubric”).] The Second Amended Complaint likewise contains only
one count under the TCCWNA and is void of numeric data. [Docket
Item 36.]
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either a clearly established legal right of the consumer or
responsibility of the seller. Id. at *10.
The Court granted Plaintiff the opportunity to seek leave to
file a Second Amended Complaint. Plaintiff did not so move.
Instead, Plaintiff simultaneously filed a timely motion for
reconsideration under L. Civ. R. 7.1(i) and docketed a Second
Amended Complaint without an accompanying motion seeking leave to
amend. [Docket Item 36.] Defendants opposed the motion for
reconsideration, and Plaintiff, again without seeking leave of
the Court, filed a letter brief in reply, augmenting her argument
with additional citations to case law. Defendants objected to the
filing of a reply for a motion for reconsideration, because
Plaintiff did not receive the Court’s permission to so file, as
required by L. Civ. R. 7.1(d)(3) (“No reply paper shall be filed,
unless permitted by the Court, relating to the following motions:
. . . Reconsideration under L.Civ.R. 7.1(i) . . . .”). Noting
these procedural errors, Defendants requested that the Court
strike the reply brief from the docket. [Docket Item 40.]
Plaintiff responded by urging the Court to consider the motion
for reconsideration “as requesting leave to amend as alternative
relief.” [Docket Item 41.]
Defendants nonetheless filed a motion to dismiss the Second
Amended Complaint. [Docket Item 42.] While Defendants observed
that Plaintiff’s filing of the Second Amended Complaint did not

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comply with this Court’s Order of August 29, 2012, they agreed,
out of consideration for “judicial efficiency,” to
respond directly to the SAC with this motion to dismiss
as opposed to waiting for plaintiff to separately file
a motion for leave and then filing an opposition to
that motion . . . . Defendants note that an opposition
to a motion for leave to amend based on Rule 15 would
turn on ‘futility’ arguments - precisely the same
arguments as those made herein.
[Def. Mot. to Dismiss at 1 n.1.] Defendants argue that the Second
Amended Complaint adds legal conclusions but does not cure the
deficiencies that led the Court to dismiss the First Amended
Complaint. [Def. Mot. to Dismiss at 2, 5.]
III. Analysis
A. Motion for Reconsideration
A motion for reconsideration is “an extraordinary remedy to
be granted very sparingly.” In re Lord Abbett Mut. Funds Fee
Litig., 417 F. Supp. 2d 624, 627 (D.N.J. 2005) (internal
quotation marks omitted). There are three grounds for relief upon
which a motion for reconsideration may be granted, under L. Civ.
R. 7.1(i): “(1) an intervening change in controlling law has
occurred; (2) evidence not previously available has become
available; or (3) it is necessary to correct a clear error of law
or prevent manifest injustice.” Connolly v. Mitsui O.S.K. Lines
(Am.) Inc., No. 04-5127, 2010 WL 715775, at *1 (D.N.J. Mar. 1,
2010). The Local Rule dictates that the movant must identify the
matter or controlling decisions that the Court “has overlooked.”

5

L. Civ. R. 7.1(i). In this case, “controlling” decisions are
those issued by the New Jersey Supreme Court. Accord Wisniewski
v. Johns-Manville Corp., 759 F.2d 271, 273-74 (3d Cir. 1985)
(“Although lower state court decisions are not controlling on an
issue on which the highest court of the state has not spoken,
federal courts must attribute significant weight to these
decisions in the absence of any indication that the highest state
court would rule otherwise.”)
Reconsideration is not appropriate to “relitigate old
matters” or to voice disagreement with the court’s decision. See
Flores v. Predco Servs. Corp., No. 10-1320, 2011 WL 3273573, at
*2 (D.N.J. July 29, 2011). “A motion for reconsideration is
improper when it is used to ask the Court to rethink what it has
already thought through - rightly or wrongly.” Oritani Sav. &
Loan Ass’n v. Fid. & Deposit Co. of Md., 744 F. Supp. 1311, 1314
(D.N.J. 1990) (internal quotation marks omitted).
Plaintiff’s sole basis for reconsideration is that the Court
overlooked a paragraph in Dugan v. TGI Friday’s, Inc., No. L0126-10, 2011 WL 5041391, at *8 (N.J. Super. Ct. App. Div. Oct.
25, 2011) (per curiam). As an initial matter, Dugan is not a
controlling decision, as it was an unpublished decision by an
intermediate appellate court. Therefore, it is not binding on
this Court, and its holding cannot be “overlooked” within the
meaning of L. Civ. R. 7.1(i). See Polizzi Meats, Inc. v. Aetna

6

Life & Cas. Co., 931 F. Supp. 328, 340 (D.N.J. 1996) (considering
a motion for reconsideration and stating that “this court is
guided, but not bound, by the rulings of the lower New Jersey
appellate courts”). Language in Dugan cannot form the basis of a
successful motion for reconsideration.
The Court also disagrees that Dugan stands for the
proposition advanced by Plaintiff. In Dugan, the Superior Court
of New Jersey, Appellate Division, considered whether the failure
to disclose prices of beverages on a menu violated the CFA or the
TCCWNA, when the restaurant charged one price for the beverages
at the bar and another price at a table. Dugan, 2011 WL 5041391,
at *1 (“Dugan’s grievance revolves around the undisclosed price
differential for the same product that is based upon where in the
restaurant . . . the item is served.”). Declining to dismiss the
TCCWNA claim, the court stated:
In this case, the affirmative act that may trigger the
TCCWNA is the offer encompassed by TGIF’s menu. We
conclude that Dugan has alleged sufficient facts to
establish that the offer violated the CFA. Those
allegations are therefore sufficient to establish a
potential violation of the TCCWNA. See Bosland, 396
N.J. Super. at 279. We do not read Jefferson Loan Co.,
Inc. to the contrary, which involved the inapposite
failure to send a ‘notice of explanation’ to the
consumer. Id. at 540. This is distinguishable from the
allegations here, where Dugan’s complaint claims that
TGIF’s menu - provided to customers in the usual course
of business - failed to disclose the prices of
beverages.
Id. at *8.
Plaintiff argues that Dugan stands for the proposition that
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the failure to disclose prices on a menu is an affirmative act
that may form the basis of a TCCWNA claim, absent a claim under
the CFA. [Pl. Mot. Br. at 5.] Plaintiff also reiterates that she
“alleged both the knowing non-disclosure of drink prices and the
fact that offering a menu without prices is an unconscionable
statutory violation. Either one could lay the foundation of a CFA
claim.” [Id. at 4 n.1.] Therefore, Plaintiff concludes that the
Court should reconsider its holding in this case, based on the
highlighted language in Dugan.
The Court considered this passage in Dugan. In fact, the
Court quoted from it in to explain why Dugan was not persuasive
in this case. See Watkins, 2012 WL 3776350, at *8 (“‘Dugan has
alleged sufficient facts to establish that the offer violated the
CFA. Those allegations are therefore sufficient to establish a
potential violation of the [NJ]TCCWNA.’”) In Dugan, the court
never held that the omission of prices from a menu constituted
the basis for a self-standing violation of the TCCWNA. Rather,
the court declined to dismiss the TCCWNA claim because the
plaintiff had sufficiently pled a violation of the CFA, which in
turn stated a claim under the TCCWNA. Dugan, 2011 WL 5041391, at
*8. Moreover, as discussed in this Court’s previous Opinion,
Dugan is distinguishable from this case on its facts because
Dugan concerned a “secret switch” in beer price from bar to
table, whereas Plaintiff here complains only that the unchanging

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prices of beverages were undisclosed. Watkins, 2012 WL 3776350,
at *8. Moreover, Plaintiff deliberately removed her CFA claim
from her First Amended Complaint, and thus she is unable to
plead, as the plaintiff did in Dugan, that Defendants’ actions
constitute both a violation of the CFA and the TCCWNA. As
previously noted, the lack of numeric data in the First Amended
Complaint likely would foreclose the possibility of stating a
claim under the CFA. Dugan does not stand for the proposition
that Plaintiff articulates: that an omission of prices from the
menu constitutes a self-standing violation of the TCCWNA.
In its previous Opinion, the Court then carefully analyzed
the text of the statute, its legislative history, and state and
federal case law. See id. at *8-*9 (examining, among other
sources, the Sponsor’s Statement to Assembly Bill No. 1660, and
analyzing eight relevant state and federal cases). After finding
no controlling precedent from the New Jersey Supreme Court, the
Court concluded:
One searches in vain for any legislative indication
that the TCCWNA was addressing omissions in addition to
inclusions. Because omitting certain prices from
restaurant menus does not pose the same risk of
misleading a consumer into failing to enforce her legal
rights as an affirmative misrepresentation, the Court
finds that the New Jersey legislature did not intend
NJTCCWNA to apply to price omission.
Id. at *9. Plaintiff’s motion for reconsideration will be denied.
For the sake of completeness, none of the citations in
Plaintiff’s reply brief are both controlling on this Court and
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analogous to the present case on their facts. Plaintiff argues
that Bosland v. Warnock Dodge, Inc., 964 A.2d 741 (N.J. 2009),
stands for the proposition that an omission may be actionable
under the TCCWNA. [Pl. R. Br. at 3.] But Bosland, like Dugan, was
a case in which the court did not find a self-standing violation
of the TCCWNA; rather, “the complaint’s CFA allegations also
sufficed to support her claim that the contract violated a
clearly established legal right.” Id. at 745. In addition, in
that case, the defendant car dealership had charged the plaintiff
at least $20 and possibly $40 more than necessary under the
umbrella line item “Registration Fee,” and the defendant’s
wrongdoing included overcharging the plaintiff and failing to
provide an itemization of the registration fee sum. Bosland, 964
A.2d at 744. Here, Plaintiff makes no accusation that the prices
she was charged were unreasonable. Bosland, then, does not shed
light on whether a pure omission, without an allegation of
overcharging the consumer, may constitute a stand-alone violation
of the TCCWNA.
Next, Plaintiff cites Bozzi v. OSI Restaurant Partners, LLC,
No. L-1324-11 (N.J. Super. Ct. Law Div. Dec. 16, 2011) (tentative
disposition by Suter, J.)3 as additional support for its
position. [Pl. R. Br. at 2.] Bozzi suffers from the same

3

The Bozzi opinion is attached to Plaintiff’s opposition to
Defendants’ motion to dismiss, Docket Item 44-3, Ex. B.
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shortcomings. It is not a controlling opinion and therefore not
binding on this Court, and the court in that case declined to
dismiss the TCCWNA claim because the plaintiff had sufficiently
pled a CFA violation. Bozzi, No. L-1324-11, slip op. at 9. In
Bozzi, the plaintiff restaurant patron was charged two different
prices for beer, depending on the hour he ordered the drinks, and
claimed the restaurant did not provide notice of any discount
during a “Happy Hour” period. Id. at 1-2. The Bozzi court simply
did not analyze whether the conduct by the restaurant was
actionable as a self-standing violation of the TCCWNA. Bozzi,
therefore, provides little guidance on the matter to be decided
here, where the restaurant charged one price (the reasonableness
of which is not being challenged) without listing prices on the
menu, and whether such an omission may be a self-standing
violation of the TCCWNA.
Plaintiff’s mere disagreement with this Court’s previous
Opinion and its reading of New Jersey court precedent cannot form
the basis of a successful motion for reconsideration. See Oritani
Sav. & Loan Ass’n, 744 F. Supp. at 1314 (explaining it is
improper to ask the court to reconsider a matter it had already
analyzed). For the reasons explained above, the motion for
reconsideration will be denied.
B. Motion to dismiss
i. Non-compliance with the Court’s Order of August 29, 2012

11

Ordinarily, the Court would direct Plaintiff to file a
formal motion to amend the Complaint, consistent with this
Court’s August 29 Order. [See Docket Item 34 (ordering Plaintiff
to file a motion seeking leave to amend the Complaint).] However,
the parties here agree that such a command merely would waste
time and resources. Because Defendants already have responded to
the substance of the Second Amended Complaint and assert that
they would raise identical arguments in opposition to a formal
motion to amend, the Court finds that considering the motion to
dismiss as such would prejudice neither party. Although Plaintiff
should have filed a motion seeking leave to amend, the Court will
review the motion to dismiss as currently presented on the
docket.
ii. Standard of review
In reviewing a complaint on a motion to dismiss, the Court
must “accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.” Fleisher v. Standard
Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). The complaint must
contain “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted). “A claim has facial plausibility when the plaintiff

12

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Legal conclusions are not entitled to
the assumption of truth. Id. at 679; see also Bistrian v. Levi,
696 F.3d 352, 365 (3d Cir. 2012). To determine if a complaint
meets the pleading standard, the Court must strip away conclusory
statements and “look for well-pled factual allegations, assume
their veracity, and then determine whether they plausibly give
rise to an entitlement to relief.” Id. (internal quotation marks
omitted).
iii. The Second Amended Complaint
Plaintiff’s Second Amended Complaint, like the First Amended
Complaint, alleges a single claim under the TCCWNA and does not
bring a claim under the CFA. The Second Amended Complaint adds
specific references to New Jersey statutes, including N.J. Stat.
Ann. § 56:8-2.5, which prohibits the sale or offer of merchandise
without a plain marking of the price on the merchandise or at the
point of sale, and the TCCWNA. [Second Am. Compl. ¶¶ 4, 21, 27.]
Plaintiff also devotes several paragraphs to summarizing and
analogizing Dugan and Bosland to the facts of this case. [Id. ¶¶
22(A)-(D), 23.] These paragraphs read like a motion brief and
rehash many of the arguments made in Plaintiff’s motion for
reconsideration. The Court cannot discern any new factual
allegations in the Second Amended Complaint.

13

Plaintiff highlights three paragraphs in its opposition
brief. The first paragraph states that Defendants’ offer to sell
drinks without prices “is an affirmative act that triggers the
applicability” of the TCCWNA. [Pl. Opp’n at 3 (emphasis in
original); Second Am. Compl. ¶ 10.] The second describes
Defendants’ “practice known as ‘menu engineering[,]’” is
virtually identical to a paragraph in the First Amended
Complaint. [Pl. Opp’n at 4; compare First Am. Compl. ¶ 11, with
Second Am. Compl. ¶ 13.] The third paragraph states that
Defendants’ offer of beverages without prices on otherwise
comprehensively priced menus is the affirmative act that triggers
TCCWNA liability. Compare with, Dugan, Slip Op. Page 20.” [Pl.
Opp’n at 4; Second Am. Compl. ¶ 28.]
iii. Whether Plaintiff cured the defects of the First
Amended Complaint
Defendants argue that the Second Amended Complaint “does not
make any materially different factual allegations. It merely
repleads legal conclusions that the omission of beverage prices
from a menu constitutes an ‘affirmative act’ under TCCWNA.” [Def.
Mot. Br. at 5.] Defendants argue that, if Plaintiff’s legal
conclusions are disregarded, the Second Amended Complaint “does
nothing to cure the defects this Court identified when dismissing
the First Amended Complaint, presumably because plaintiff has no
additional facts to allege.” [Id.] Defendants request dismissal

14

with prejudice. [Id. at 5.]
Plaintiff responds that the “complaint makes clear that the
presentation of the offer in this matter is an intentional act
with an improper purpose” and that the deliberate “menu
engineering” constitutes an affirmative act. [Pl. Opp’n at 6.]
Plaintiff also discusses Dugan, Bosland and Bozzi.[Id. at 7-10.]
When the Court strips away legal conclusions contained
within the Second Amended Complaint - including all statements
that Defendants’ actions constitute affirmative acts that trigger
liability under the TCCWNA - as well as discussions of legal
precedent, the Second Amended Complaint is materially unchanged
from the First Amended Complaint that this Court dismissed
without prejudice. This Court is not required to accept as true
Plaintiff’s legal conclusions. Iqbal, 556 U.S. at 679. Moreover,
as discussed supra, Part III.A, and in the Court’s previous
Opinion of August 29, 2012, the Court disagrees with Plaintiff’s
interpretation of the New Jersey case law and the scope of the
TCCWNA. The Second Amended Complaint continues to assert that the
omission of the prices from the menus is grounds for TCCWNA
liability, a contention that this Court has rejected. Because the
Second Amended Complaint contains no new factual allegations that
plausibly present a claim for liability under the TCCWNA, for the
reasons discussed above, as well as those set forth in the
Court’s previous Opinion, see Watkins, 2012 WL 3776350, at *7-*9

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(explaining why the conduct alleged did not state a claim under
the TCCWNA), the Court will grant the motion to dismiss with
prejudice.
IV.

Conclusion
Plaintiff’s motion for reconsideration will be denied, and

Defendants’ motion to dismiss will be granted with prejudice. An
accompanying Order will be entered.

January 30, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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