Abramowitz v. Tropicana Atlantic City Corp. et al

Filing 71

OPINION FILED. Signed by Magistrate Judge Joel Schneider on 3/17/17. (js)

[Doc. No. 60]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DARRYL ABRAMOWITZ,
Plaintiff,
v.

Civil No. 15-1694 (JS)

TROPICANA ATLANTIC CITY CORP.,
et al.,
Defendants.
OPINION
This matter is before the Court on the “Motion for Summary
Judgment” [Doc. No. 60] filed by defendants Tropicana Atlantic
City Corporation d/b/a Tropicana Casino and Resort (“Tropicana”)
and Marina District Development Company, LLC d/b/a Borgata Hotel
Casino & Spa (“Borgata”). Defendants are seeking summary judgment
on all of plaintiff Darryl Abramowitz’s claims. The Court received
plaintiff’s opposition [Doc. No. 65] and defendants’ reply [Doc.
No. 68].1 Pursuant to 28 U.S.C. § 636(c), the parties consented to

The Court is also in receipt of plaintiff’s August 4, 2016
letter attaching an excerpt of a case from this District and
requesting leave of Court to submit the case. [Doc. No. 69]. As
defendants correctly assert in their response [Doc. No. 70],
plaintiff’s letter filed without leave of Court constitutes an
impermissible sur-reply pursuant to L. Civ. R. 7.1(d)(6) and will
not be considered. See Tucker v. Sebelius, C.A. No. 07-2230 (RBK),
2010 WL 2761525, at *5 n.3 (D.N.J. July 12, 2010) (declining to
consider sur-reply filed without leave of Court). Further, even if
1

1

the jurisdiction of this Court to hear the case. [Doc. No. 37].
The Court exercises its discretion to decide defendants’ motion
without oral argument. See Fed. R. Civ. P. 78; and L. Civ. R. 78.1.
For the reasons to be discussed defendants’ motion will be GRANTED.
This Opinion addresses whether plaintiff makes out viable
claims under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et
seq. (“NJCFA”), New York General Business Law, N.Y. Gen. Bus. Law
§

349

(“NYGBL”),

common

law

fraud

and

breach

of

contract.

Plaintiff’s claims arise from his visits to the Tropicana and
Borgata casinos in Atlantic City in 2012. The crux of plaintiff’s
claims is that defendants made promises of complimentary benefits
to encourage him to gamble at their casinos but the promises were
not kept.
I.

BACKGROUND
Plaintiff is a “high roller,” described as a “gambler who

wagers large amounts of money” at various casinos in the United
States. Plaintiff receives offers of complimentary benefits in
goods and services (hereinafter, “comps”) from casinos due to his
“high roller” status. Am. Compl. ¶¶ 10, 13-15 [Doc. No. 40].
Defendants Tropicana and Borgata2 offered comps to plaintiff,

the Court considered plaintiff’s
material assistance to the Court.

sur-reply,

it

provides

no

Plaintiff originally filed his complaint in the Supreme
Court of the State of New York on February 18, 2014, asserting the
same four claims against three defendants—Tropicana, Borgata and
Revel Entertainment Group, LLC d/b/a Revel Casino Hotel (“Revel”).
2

2

mostly via email communications. While the pertinent facts are not
complicated, because a different set of facts apply to each
defendant, the Court will address them separately.
A. Tropicana
On March 2, 2012, plaintiff received an email invitation from
Julie Estrada (“Estrada”)—Tropicana’s marketing representative—to
participate in a blackjack tournament on March 31, 2012. The email
invitation also included information regarding “giveaways” and
amenities offered by Tropicana. Of particular importance to the
present matter is that Estrada’s invitation offered $5,000 in
“match play coupons.”3 Defs.’ Statement of Facts (“SOF”) ¶ 4 [Doc.
No. 60-4]; see also Defs.’ Ex. F [Doc. No. 60-3]. Plaintiff
responded via email on the same date, stating: “$25,000 in match
play and Ill [sic] come on 3/31 for BJ toun...vegas [sic] gives
promo chips!!!” Defs.’ Ex. F.

On April 1, 2014, defendants removed the case to the Eastern
District of New York. See generally Notice of Removal [Doc. No.
1]. On December 18, 2014, the district court granted plaintiff’s
motion to dismiss Revel pursuant to Fed. R. Civ. P. 41(a)(2) and
lifted the automatic stay that was in place because of Revel’s
pending Chapter 11 bankruptcy. See Dec. 18, 2014 Electronic Order.
The Honorable Joanna Seybert, U.S.D.J. subsequently granted
defendants’ request to transfer venue to this District, finding
that the factors under 28 U.S.C. § 1404(a) weighed in favor of the
transfer. Mar. 6, 2015 Mem. & Order at 15-16 [Doc. No. 25]. On
April 25, 2016, this Court denied plaintiff’s Motion to Remand as
moot. Apr. 25, 2016 Order [Doc. No. 58].
“Match play coupons” are defined as “non-redeemable coupons
offered by casinos,” which are used to match the coupon holder’s
bet, effectively doubling the placed bet. Defs.’ SOF ¶ 12.
3

3

After several email exchanges, Estrada agreed to provide
plaintiff with $25,000 in match play coupons. Via an email dated
March

19,

2012,

Estrada

provided

the

following

information

regarding the comps offered to plaintiff on the weekend of March
31:
I was going to meet you half way offering you 20k but
thought if I’m going that far, it just makes sense just
to give you what you asked for.
Room:
RMS:
Event:
Other:
Dinner?
Credit:
Id.

On

March

3/31-4/1 Penthouse Suite butler Service
3/31 Eta? Let me know what you want the butlers
to put in your room
3/31 9pm 50k Winner-Take-All BJ Tourn 49ppl
max Rook [sic] Top Lounge. Finals immediately
following
3/31 25k Match Play – what denomination so
they can have it ready for you?
Fin, Il Verdi, Golden Dynasty, The Palm,
Carmines, Red Square, PF Changs, Cuba Libre...
Inactive – Is your bank still TD?
26,

in

response

to

Estrada’s

request

for

a

confirmation, plaintiff cancelled his trip, stating that he would
not attend the March 31 blackjack tournament because he had guests
visiting from Chicago. Defs.’ SOF ¶¶ 6-7.
Plaintiff eventually made it to Tropicana that summer to
gamble. On June 20, 2012, Estrada sent a mass group email, which
included plaintiff as a recipient, stating:
6/23 Shopping Spree where you can get an Ipad or other
items of your choosing
AND
The following weekend compete in our
$50k winner-take-all BLACKJACK TOURNAMENT 49PPL
Maximum!
MATCH PLAY OR SHOPPING AS WELL – YOU DECIDE.
RSVP REQUIRED
4

Also included in the email invitation was a disclaimer stating:
“*Comps are based on play. Play required for future events. Must
be 21. May change or cancel at anytime. . . .” Id. ¶¶ 10-11; see
also Defs.’ Ex. C. On June 28, plaintiff responded to Estrada’s
email and confirmed his participation in the June 30 blackjack
tournament by stating “yes put me in.” Defs.’ SOF ¶¶ 13-14. On the
weekend at issue, plaintiff stayed at a different hotel, the Revel
Casino Hotel. On June 30, plaintiff walked from the Revel to
Tropicana to participate in the blackjack tournament. Id. ¶¶ 1516. Plaintiff was not required to “buy in” or pay to participate
in the tournament. Id. ¶ 20.
After the tournament, plaintiff sought to redeem $25,000 in
match play coupons; however, the cashier at Tropicana’s credit
department

initially

retrieved

only

$10,000

in

coupons

for

plaintiff. After some discussion, including attempts to contact
Estrada, plaintiff accepted the $10,000 in match play coupons by
signing for them. Soon thereafter, plaintiff returned the match
play coupons without placing them in a bet.

Id. ¶¶ 17, 21.

Plaintiff returned to his hotel room at the Revel that evening
after speaking with Estrada on the phone. Id. ¶ 18. Ultimately,
plaintiff did not lose any money or pay to participate in the
blackjack tournament at Tropicana on June 30, 2012; however,
plaintiff claims he suffered losses in his time, effort and
“everything else.” Id. ¶¶ 22-23.
5

B. Borgata
Borgata also offered comps to plaintiff in 2012. In an email
dated

March

22,

2012,

Jason

Lyons

(“Lyons”)—Borgata’s

Vice

President of Relationship Marketing—confirmed the following comps
available to plaintiff during his stay at Borgata on the weekend
of March 23, 2012:
Hi Darryl,
All set at Water Club [one of two towers at Borgata] for
this Fri and Sat (Penthouse w/ butler). Credit is
finalizing your line for $250k now (just stop by our
credit office to sign slip before playing). Regarding
shopping, I’ll comp you $5k thru [sic] the door at any
of our store(s), and more by trips end.
Id. ¶ 25. Plaintiff had telephone discussions with Lyons prior to
these comps being finalized. Id. Lyons granted plaintiff’s request
for an additional “$500 comp for the old homestead [a restaurant
in Borgata]” by instructing plaintiff to “just sign dinner bill to
room.” Id. ¶¶ 29-30. On March 23, Borgata also arranged for a
limousine to be sent to plaintiff’s residence in New York and
provided transportation to Borgata in Atlantic City. Id. ¶¶ 2631.
Upon his arrival at Borgata, plaintiff gambled for several
hours and won approximately $105,000. Plaintiff then retired to
his penthouse suite in the early hours of March 24. The following
morning, plaintiff asked Lyons where he could retrieve the $5,000
in shopping comps. Lyons advised plaintiff that Borgata does not
provide shopping comps in cash and instructed plaintiff to charge
6

his shopping to his hotel room. Id. ¶¶ 35-36. Later that day,
plaintiff had some difficulties at Hugo Boss, one of the stores in
Borgata, while trying to redeem his shopping comp. Plaintiff’s
shopping charge of $405.00 at Hugo Boss was eventually charged to
his hotel room after Lyons was contacted. Id. ¶ 37. Later that
evening, plaintiff had dinner at The Old Homestead and charged his
$696.22 dinner bill to his hotel room. Id. ¶¶ 38-39. Plaintiff
continued
Atlantic

to
City

gamble
at

at

Borgata

approximately

that
5:30

evening.
a.m.

on

Plaintiff
March

25

left
via

a

limousine provided by Borgata. Id. ¶ 40.
On March 26, 2012, plaintiff emailed Lyons, requesting that
certain items be shipped from one of the stores in Borgata to
plaintiff because either the store did not have the items in stock
or plaintiff did not feel like “dragging the rest.” The items
plaintiff requested in the March 26 email had a total value of
$3,790. Id. ¶ 41. During his stay at Borgata on the weekend of
March 23, 2012, Borgata provided plaintiff with comps in goods and
services with a total value of $5,874.12. Id. ¶¶ 43-44. Some of
these comps were either charged to plaintiff’s room at Borgata or
directly provided to plaintiff without him being charged at all.
The comps charged to his hotel room—including $405.00 in shopping
and $696.22 in dining—were reflected on plaintiff’s credit card
statement. Id. ¶¶ 45-46. Subsequently, plaintiff was reimbursed by
Borgata for the charges reflected on his credit card, totaling
7

$1,440.62.4

Id.

¶¶

47-48.

While

plaintiff

disputes

that

the

reimbursement to his credit card was the result of any action by
Borgata, plaintiff concedes that he ultimately did not pay for the
$405.00 shopping charge at Hugo Boss, his lodging at Borgata
between

March

23

and

March

25,

2012,

and

the

limousine

transportation for his trip. Id. ¶¶ 46, 50-52.
C. Parties’ Arguments
Defendants argue that plaintiff’s opposition to their motion
is procedurally and substantively deficient. Defendants request
the Court to disregard plaintiff’s opposition due to plaintiff’s
failure to comply with the Local Civil Rules, in particular, L.
Civ. R. 56.1. The crux of defendants’ substantive argument is that
plaintiff cannot establish defendants’ unlawful conduct or any
measurable damage suffered by plaintiff to make out viable NJCFA,
NYGBL, common law fraud and breach of contract claims. Therefore,
in defendants’ view, plaintiff has resorted to “speculation and
conjecture” in opposing their motion. See Defs.’ Reply at 1-2 [Doc.
No. 68].
Plaintiff argues defendants’ motion should be denied because
there are disputed material facts as to his claims against each

Defendants submitted plaintiff’s American Express credit
card statements dated April 10, 2012 and June 10, 2012 in support
of their motion. The April statement shows plaintiff’s credit card
was credited $405.00 on March 27, 2012 by the Water Club [Borgata].
Defs.’ Ex. D [Doc. No. 60-3]. The June statement shows plaintiff’s
credit card was credited $1,035.62 on May 22, 2012 by the Water
Club. Defs.’ Ex. E [Doc. No. 60-3].
4

8

defendant. As to Tropicana, plaintiff argues he is entitled to
have the jury “draw any inference it wants” whether the offer of
$25,000 in match play coupons was limited to the weekend of March
31, 2012 and whether he sustained ascertainable damages. Pl.’s
Opp’n at 3, 6 [Doc. No. 65-1]. As to Borgata, plaintiff argues
Lyons’ promise of a $5,000 shopping comp “thru the door” was not
honored because some of the comps

were initially charged to

plaintiff’s credit card, only to be reimbursed due to plaintiff’s
own actions. In plaintiff’s view, a “charge which is later credited
back is still a charge.” Id. at 17-18.
For

the

reasons

to

be

discussed,

the

Court

finds

that

defendants have met their initial burden of demonstrating the
absence of a genuine issue of material fact. The Court further
notes that plaintiff’s response to defendants’ motion is replete
with procedural deficiencies that may justify the Court finding
defendants’

motion

unopposed.5

However,

the

Court

denies

For instance, plaintiff’s statements of facts are mostly
devoid of citation to the record. See generally Pl.’s Opp’n at 19. Because of plaintiff’s failure to properly support his factual
assertions or dispute defendants’ factual assertions with
citations to the record, the Court may “consider the fact
undisputed for the purposes of the motion” or “grant summary
judgment if the motion and supporting materials—including the
facts considered undisputed—show that the movant is entitled to
it.” Fed. R. Civ. P. 56(e)(2), (3).
Moreover, plaintiff’s responsive and supplemental statements
of material facts are contained in a single document with his
opposition brief, and contain legal arguments and conclusions in
violation of L. Civ. R. 56.1(a). [Doc. No. 65-1]. While the Court
notes that certain procedural deficiencies may be excused if the
requirements of the L. Civ. R. 56.1 are met in substance, see Safar
5

9

defendants’ request to disregard plaintiff’s opposition in its
entirety and will consider the parties’ submissions on the merits.
Nonetheless, defendants’ motion will still be granted because the
Court finds that defendants’ conduct does not constitute a NJCFA
or NYGBL violation, nor does it constitute common law fraud or
breach of contract. The Court further finds that plaintiff did not
suffer any damages as a result of defendants’ alleged conduct.
II.

DISCUSSION
A. Summary Judgment Standard
Pursuant

to

Fed.

R.

Civ.

P.

56,

summary

judgment

is

appropriate where the Court is satisfied that “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any . . . demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted). Summary
judgment is not appropriate if the dispute about a material fact
is “genuine,” that is, if the evidence is such that a reasonable
jury could return a verdict in favor of the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
materiality

of

a

fact

turns

on

whether

under

the

governing

substantive law a dispute over the fact might have an effect on
the outcome of the suit. Id. The Court must view all evidence and

v. Cox Enterprises, Inc., C.A. No. 10-3069 (JLL), 2013 WL 4084636,
at *1 (D.N.J. Aug. 12, 2013), it is arguable whether plaintiff
meets this standard.
10

draw all reasonable inferences in the light most favorable to the
non-moving party. See Startzell v. City of Phila., 533 F.3d 183,
192 (3d Cir. 2008) (citation omitted).
The moving party bears the initial burden of informing the
Court of the basis for its motion and demonstrating the absence of
a genuine issue of material fact. Celotex, 477 U.S. at 322-23.
Once the burden is met, the burden shifts to the non-moving party
to “set forth specific facts showing that there [are] . . . genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. The party opposing summary
judgment may not “rest upon mere allegation[s] or denials of his
pleading,”

but

must

set

forth

specific

facts

and

present

affirmative evidence demonstrating that there is a genuine issue
for

trial.

Additionally,

Id.
“if

at
the

256-57;

Fed.

non-moving

R.

Civ.

party’s

P.

evidence

56(c)(1)(A).
‘is

merely

colorable, . . . or is not significantly probative, . . . summary
judgment may be granted.’” Trap Rock Indus., Inc. v. Local 825,
Int’l Union of Operating Engineers, AFL-CIO, 982 F.2d 884, 890-91
(3d Cir. 1992) (quoting Gray v. York Newspapers, Inc., 957 F.2d
1070, 1078 (3d Cir. 1992)).
B. New Jersey Consumer Fraud Act
Plaintiff’s

NJCFA

claim

is

premised

on

the

theory

that

defendants made promises of comps to encourage him to gamble at
11

their casinos because of his “high roller” status but failed to
keep those promises. The NJCFA “is aimed basically at unlawful
sales and advertising practices designed to induce consumers to
purchase merchandise or real estate.” Joe Hand Promotions, Inc. v.
Mills, 567 F. Supp. 2d 719, 723 (D.N.J. 2008) (quoting Daaleman v.
Elizabethtown Gas Co., 390 A.2d 566, 568 (N.J. 1978)). Stated
differently, the NJCFA reflects “the legislative concern . . .
over sharp practices and dealings in the marketing of merchandise
and real estate whereby the consumer could be victimized by being
lured into a purchase through fraudulent, deceptive or other
similar kind of selling or advertising practices.” Id. To maintain
a claim under the NJCFA, plaintiff must prove: (1) unlawful conduct
by defendant; (2) an ascertainable loss by plaintiff; and (3) a
causal

relationship

between

the

unlawful

conduct

and

the

ascertainable loss. Zaman v. Felton, 98 A.3d 503, 516 (2014).
For the purpose of determining whether plaintiff establishes
the first element, the NJCFA defines “sale” as “any sale, rental
or distribution, offer for sale, rental or distribution or attempt
directly or indirectly to sell, rent or distribute.” N.J.S.A. 56:81(e). “Advertisement” is defined to include “the attempt directly
or

indirectly

by

publication,

dissemination,

solicitation,

indorsement or circulation or in any other way to induce directly
or indirectly any person to enter or not enter into any obligation

12

or acquire any title or interest in any merchandise or to increase
the consumption thereof . . . .” N.J.S.A. 56:8-1(a).
Plaintiff’s main argument in support of his NJCFA claim is
that a reasonable jury could infer defendants engaged in a “classic
bait and switch.” Pl.’s Opp’n at 20. As to Tropicana, plaintiff
argues that the “bait” was the $25,000 in match play coupons
offered in Estrada’s March 19, 2012 email for March 31, 2012, and
the “switch” occurred when plaintiff was given $10,000 in coupons
during his June 30, 2012 visit. As to Borgata, plaintiff argues
that the promise of $5,000 in shopping comps “thru the door” was
the “bait” and plaintiff’s credit card being charged was the
“switch.” Id.
Plaintiff’s

arguments

are

rejected.

As

to

Tropicana,

plaintiff fails to point to any evidence that Estrada’s offer of
$25,000 in match play coupons for March 31, 2012 was a standing
offer available to plaintiff during his June 2012 visit. Estrada’s
March 19, 2012 email clearly states, “3/31 25k Match Play—what
denomination so they can have it ready for you?”6 Defs.’ Ex. F.
Plaintiff cannot overcome the plain language of Estrada’s email
with his unsupported and speculative arguments that Tropicana’s
email did not mean what it said, i.e., that the offer only applied

The Court’s finding is further supported by the details of
other comps offered to plaintiff in Estrada’s March 19 email: the
penthouse suite with butler service on 3/31 and 4/1; “RMS” for
3/31; and the blackjack tournament on 3/31 at 9pm.
6

13

if plaintiff visited on March 31, 2012. See Mullen v. New Jersey
Steel Corp., 733 F. Supp. 1534, 1539 n.5 (D.N.J. 1990) (declining
to follow

the parties’

arguments

when “common sense and the

document state otherwise”). Even viewed in the light most favorable
to plaintiff, no reasonable inference can be made from the evidence
before the Court that the offer of $25,000 in match play coupons
for March 31, 2012 applied to plaintiff’s June 30, 2012 visit.
Likewise, plaintiff fails to point to any evidence that could
lead a reasonable jury to conclude Borgata engaged in unlawful
conduct sufficient to maintain his NJCFA claim. Plaintiff argues
he did not get a $5,000 shopping credit but the undisputed facts
show that he received the credit. Plaintiff concedes he ultimately
did not pay for the $405.00 shopping charge, his lodging at Borgata
between

March

23

and

March

25,

2012,

and

the

limousine

transportation to and from Atlantic City. Defs.’ SOF ¶¶ 46, 5052. Lyons’ March 22, 2012 email promised $5,000 in shopping comps.
During the weekend of March 23, 2012, plaintiff redeemed $5,874.12
in comps from Borgata. See id. ¶¶ 43-44. Plaintiff attempts to
dispute this fact by questioning Borgata’s calculation of the total
comps redeemed and asserting that the removal of the charges on
his

credit

card

was

the

result

of

plaintiff’s

actions,

not

Borgata’s. See Pl.’s Opp’n at 5. Plaintiff further argues “$5,000
thru the door” should be interpreted as a “shopping spree” with
the $5,000 comp available as credit for immediate use. Id. at 17.
14

As discussed, however, plaintiff fails to point to any evidence to
counter

defendants’

submission

of

plaintiff’s

credit

card

statements showing the removal of the charges by Borgata. See supra
note 4. In opposing a motion for summary judgment, plaintiff cannot
“rest upon mere allegation[s] or denials of his pleadings” but
rather “must set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 256. The fact of
the matter is that plaintiff was promised a $5,000 credit and this
is what he received.
Having found that plaintiff cannot raise a genuine issue of
material fact as to the first element of his NJCFA claim, “unlawful
conduct”

by

defendants,

the

Court

need

not

discuss

the

“ascertainable loss” and “causation” elements. However, even if
the Court considers the “ascertainable loss” element, plaintiff
cannot survive defendants’ motion. This is so because in construing
the NJCFA the Third Circuit stated that, “[a]n ‘ascertainable loss’
is ‘either an out-of-pocket loss or a demonstration of loss in
value’ that is ‘quantifiable or measurable. . . . Put differently,
a plaintiff is not required to show monetary loss, but only that
he purchased something and received ‘less than what was promised.’”
Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 606 (3d Cir. 2012)
(citations omitted). Plaintiff concedes that he did not have to
make a purchase or that he ultimately did not pay for any of the
comps he received from defendants. Nor does he assert the comps he
15

received

lost

value

that

is

“quantifiable

or

measurable.”

Therefore, the Court finds that plaintiff cannot establish an
“ascertainable loss” even if the Court assumes defendants engaged
in

unlawful

conduct.

Accordingly,

defendants’

motion

will

be

granted as to plaintiff’s NJCFA claim.
C. New York’s General Business Law Section 349
To

succeed

on

a

claim

for

deceptive

trade

or

business

practices under NYGBL § 349, plaintiff must prove that: (1) the
challenged act or practice was consumer-oriented; (2) the conduct
was materially deceptive or misleading; and (3) plaintiff suffered
harm as a result of defendant’s act. Vitolo v. Mentor H/S, Inc.,
426 F. Supp. 2d 28, 33 (E.D.N.Y. 2006), aff’d, 213 Fed. Appx. 16
(2d Cir. 2007). Section 349 of NYGBL “was intended to be a consumer
protection statute.” Id. Therefore, “the gravamen of the complaint
must be consumer injury or harm to the public interest.” Securitron
Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir. 1995).
Further, plaintiff must show actual harm that is caused by and
separate

from

the

alleged

deceptive

acts.

See

Bildstein

v.

MasterCard Int’l Inc., 329 F. Supp. 2d 410, 415-16 (S.D.N.Y. 2004);
Small v. Lorillard Tobacco Co., 720 N.E.2d 892, 898 (N.Y. 1999)
(finding no violation of NYGBL § 349 where there was no actual
harm besides the alleged deceptive act).
The crux of defendants’ argument is that plaintiff’s NYGBL
claim must fail as a matter of law because defendants’ acts at
16

issue—Estrada’s offer of $25,000 in match play coupons in her March
19, 2012 email and Lyons’ offer of $5,000 in shopping comps in his
March 22, 2012 email—were specifically directed at plaintiff, not
the general or consuming public. Defs.’ Mot. at 16-18 [Doc. No.
60-5]. Defendants further argue, even if defendants’ actions were
directed at New York consumers at large, plaintiff fails to provide
any evidence that he suffered actual harm as a result of either
Estrada’s or Lyons’ emails. See Defs.’ Reply at 7.
In opposition, plaintiff concedes that defendants’ offers to
plaintiff

were

“personalized,”

however,

plaintiff

disputes

defendants’ characterization of the offers as “private contract
disputes unique to the parties” beyond the scope of NYGBL § 349.
Pl.’s Opp’n at 20. Plaintiff further argues he suffered actual
harm in the loss of economic opportunity to gamble with the
promised $25,000 in match play coupons. Id. at 16. As to Borgata,
plaintiff argues he suffered actual harm when he was induced to
“walk through the door” and spend money

at Borgata’s stores

regardless of whether plaintiff was subsequently reimbursed. Id.
at 18-19.
Plaintiff’s arguments must fail. As a preliminary matter,
plaintiff presents no competent evidence to support his position
that defendants’ offers were directed to consumers-at-large. See
Euchner-USA, Inc. v. Hartford Cas. Ins. Co., 754 F.3d 136, 143 (2d
Cir. 2014) (affirming the district court’s dismissal of NYGBL §
17

349 claim because “[p]rivate contract disputes, unique to the
parties . . . would not fall within the ambits of the statute.”);
Naples v. Stefanelli, 972 F. Supp. 2d 373, 399 (E.D.N.Y. 2013) (“A
threshold issue in every § 349 case is whether the defendants’
conduct

was

consumer-oriented.

.

.

.

[T]o

state

a

claim

of

consumer-oriented deception, a plaintiff must allege that the
disputed acts or practices have a broader impact on consumers at
large.”). Further, the Court finds that even if the initial
communication was directed at consumers at large as a group email,
the final terms of the offers at issue were highly individualized
and specific to plaintiff. For instance, Tropicana’s offer of
$25,000 in match play coupons was the result of plaintiff’s request
and it was plaintiff who cancelled the request. Further, Borgata’s
offer of comps was the result of phone conversations between
plaintiff and Lyons, and further requests by plaintiff for an
additional comp for the Old Homestead. See Poller v. BioScrip,
Inc., 974 F. Supp. 2d 204, 238 (S.D.N.Y. 2013) (finding that the
record was devoid of any evidence to suggest the conduct at issue
was consumer-oriented and granting summary judgment on a NYGBL §
349 claim). Accordingly, the Court finds that plaintiff’s NYGBL
claim fails as a matter of law because even viewed in the light
most favorable to plaintiff, there is nothing in the record to
suggest that the conduct at issue was consumer-oriented.

18

Having found that plaintiff cannot raise a genuine issue of
material fact as to the threshold element of his NYGBL claim,
“consumer-oriented conduct” by defendants, the Court need not
discuss plaintiff’s NYGBL claim further. However, even if the Court
considers the other elements, plaintiff cannot survive defendants’
motion. In his opposition plaintiff only addresses the “consumeroriented conduct” element. See Pl.’s Opp’n at 21. However, as
previously

described,

defendants

engaged

there

in

is

no

“materially

evidence
deceptive

to

suggest

or

that

misleading”

conduct. Further, plaintiff fails to establish he suffered actual
harm as a consequence of defendants’ offers. See Bildstein, 329 F.
Supp. 2d at 415-16 (“It is well established . . . that the claimed
deception cannot itself be the only injury.”); Small, 720 N.E.2d
at 898 (rejecting the plaintiffs’ argument that they suffered
actual harm under § 349 because they bought a product that they
would not have purchased absent the defendants’ deceptive acts).
As

described,

plaintiff

did

not

suffer

a

loss.

Accordingly,

defendants’ motion will be granted as to plaintiff’s NYGBL claim.
D. Common Law Fraud
A plaintiff seeking to recover for common law fraud in New
Jersey must establish the following elements: “(1) a material
misrepresentation

of

a

presently

existing

or

past

fact;

(2)

knowledge or belief by the defendant of its falsity; (3) an
intention that the other person rely on it; (4) reasonable reliance
19

thereon by the other person; and (5) resulting damage.” Williams
v. BASF Catalysts LLC, 765 F.3d 306, 317 (3d Cir. 2014) (quoting
Banco Popular N. Am. v. Gandi, 876 A.2d 253, 260 (N.J. 2005)).
Defendants reassert their argument that plaintiff fails to
“present any evidence establishing a material misrepresentation on
behalf of [defendants].” Defendants point to Estrada’s March 19
and Lyons’ March 22, 2012 emails as the only evidence plaintiff
offers to support his common law fraud claim. As to Tropicana,
defendants argue Estrada’s email clearly limited the offer of
$25,000 in match play coupons to the weekend of March 31, 2012.
With regard to Borgata, defendants argue Lyons’ email promised
plaintiff $5,000 in shopping comps and plaintiff received numerous
comps in excess of $5,000 during his March 2012 stay at Borgata.
Defs.’ Mot. at 19.
The Court agrees with defendants. In response, plaintiff
again relies on unsupported factual assertions and speculation
without even addressing the requisite elements to establish a
common law fraud claim. See Pl.’s Opp’n at 22. Even if defendants’
email offers

at issue constitute material misrepresentations,

which is denied, plaintiff fails to advance any argument or present
any evidence that defendants knew or believed in the falsity of
the emails. By way of example, the record establishes it was
plaintiff who requested the $25,000 in match play coupons from
Tropicana

for

March

31,

2012,
20

only

to

cancel

his

trip

and

effectively canceling his request. As to Borgata, plaintiff was
promised $5,000 in shopping comps and received comps in excess of
the amount promised. Under this set of facts there is no factual
dispute that defendants did not engage in fraudulent conduct. Thus,
summary judgment in favor of defendants is appropriate. See Nat’l
R.R. Passenger Corp. v. Pa. Pub. Util. Comm’n, 342 F.3d 242, 259
n.14 (3d Cir. 2003) (noting that a party who fails to adequately
brief her claim waives the claim); Reynolds v. Wagner, 128 F.3d
166, 178 (3d Cir. 1997) (“[A]n argument consisting of no more than
a conclusory assertion . . . (without even a citation to the
record) will be deemed waived.”); see also Fed. R. Civ. P. 56(e)(3)
(permitting the Court to grant summary judgment in the absence of
supporting facts so long as the movant is entitled to summary
judgment).
To the extent plaintiff attempts to raise a genuine issue of
material fact with his purported phone conversation with Estrada
in

October

2013,

the

Court

will

not

consider

plaintiff’s

Certification and the attached exhibit [Doc. Nos. 65-2, 65-3]
because the Certification does not satisfy the requirements of 28
U.S.C. § 1746 for two reasons. First, plaintiff’s Certification is
qualified with the language, “to the best of my knowledge and
belief,”

which

is

insufficient

for

the

“personal

knowledge”

requirement. Three Rivers Confections, LLC v. Warman, 660 Fed.
Appx. 103, 108 n.10 (3d Cir. 2016) (finding that a conditional
21

statement

is

“insufficient

as

a

proffer

of

evidence

because

affidavits submitted in opposition to a motion for summary judgment
must be based on the affiant’s personal knowledge”) (quoting LopezCarrasquillo v. Rubianes, 230 F.3d 409, 414 (1st Cir. 2000)).
Second, even if considered, plaintiff’s Certification contains an
inordinate number of legal arguments and unqualified opinions in
violation of L. Civ. R. 7.2(a) and is of no material assistance to
the

Court.

Thus,

the

Court

will

not

consider

plaintiff’s

Certification. See Young v. United States, 152 F. Supp. 3d 337,
351 n.10 (D.N.J. 2015) (“Further, it contains neither a jurat nor
a statement in the form prescribed by 28 U.S.C. § 1746, rendering
the document unsworn and not under the penalty of perjury. Thus it
fails to be an “affidavit” by the plain meaning of the word.”).
For instance, plaintiff speculates as to Borgata that “a reasonable
jury could conclude that had [p]laintiff lost $105,000 rather than
coming out winning that sum, Borgata would have honored its
promises; would not have charged his credit card and would have
welcomed him back with more comps . . . and open arms, hugs and
kisses.” Id. Such an argument without any evidentiary support has
no place in opposing a summary judgment motion. See Anderson, 477
U.S. at 256-57.
Further, even if the Court considers the transcript of the
phone

conversation

attached

to

plaintiff’s

Certification,

it

provides no material assistance to the Court in determining whether
22

Estrada’s March 19, 2012 offer of $25,000 in match play coupons
applied to plaintiff’s June 2012 visit. This is so because the
transcript

is

incomplete

and

it

is

unclear

what

time

frame

plaintiff is referring to in the conversation. For instance,
plaintiff refers to October 2012 as the relevant time frame in the
transcript, which is four months after the June 2012 visit to
Tropicana at issue in the case. Thus, the transcript of the October
2013 phone conversation provides no relevant material facts for
the

Court

to

consider.

Plaintiff

cannot

“rest

upon

mere

allegation[s] or denials of his pleading,” but must set forth
specific facts and present affirmative evidence demonstrating that
there

is

a

genuine

issue

for

trial.

Id.;

Fed.

R.

Civ.

P.

56(c)(1)(A). Accordingly, defendants’ motion will be granted as to
plaintiff’s fraud claim under New Jersey common law.
E. Breach of Contract
Under New Jersey law, a plaintiff seeking to recover for
breach of contract must allege the following elements: (1) the
existence of a valid contract between the parties; (2) the breach
of contract by defendant; and (3) plaintiff’s injury as result of
the breach. Luscko v. S. Container Corp., 408 Fed. Appx. 631, 636
(3d Cir. 2010) (citations omitted). To prove the existence of a
valid

contract,

plaintiff

must

establish

“mutual

assent,

consideration, legality of object, capacity of the parties and
formality of memorialization.” Interlink Grp. Corp. USA v. Am.
23

Trade & Fin. Corp., C.A. No. 12-6179 (JBC), 2014 WL 3578748, at *5
(D.N.J. July 18, 2014) (citation omitted).
Defendants reassert their argument that plaintiff fails to
present any evidence to support his breach of contract claim and
has “resorted to speculation and conjecture.” Defs.’ Reply at 1.
The Court agrees. In opposition, plaintiff presents no legal
argument. Plaintiff fails to even address whether there was mutual
assent between the parties to establish the existence of a valid
contract. See Interlink Grp., 2014 WL 3578748, at *5. Plaintiff
rather asserts, “if a contract exists then defendants failed to
meet the terms of the contract. If there is no contract then the
nature of the offers are fraudulent and intentionally misleading.”
Pl.’s

Opp’n

at

22.

As

noted,

such

an

argument

without

any

evidentiary support has no place in opposing a summary judgment
motion. See Anderson, 477 U.S. at 256-57.
The fact of the matter is that there is no evidence of a
breach even if the Court assumes the existence of a valid contract.
This is so because it was plaintiff who requested $25,000 in match
play coupons for March 31, 2012 and it was plaintiff who cancelled
his March trip to Tropicana. The Court concludes this constitutes
an anticipatory repudiation on plaintiff’s part even if a valid
contract existed. Sleep for Health, LLC v. Cardio Sleep Servs.,
Inc., C.A. No. 10-2800 (RBK/KMW), 2012 WL 892938, at *4 (D.N.J.
Mar. 15, 2012) (“An anticipatory breach ‘occurs when a party
24

renounces or repudiates a contract by unequivocally indicating
that it will not perform when performance is due.”). As noted, and
contrary to plaintiff’s argument, the offer of $25,000 in match
play coupons only applied to March 31, 2012. It did not apply to
plaintiff’s later visit.

Likewise,

Borgata promised plaintiff

$5,000 in shopping credit and that is what plaintiff received.
Further, even assuming defendants breached their contracts,
which is denied, plaintiff cannot establish he suffered any actual,
measurable

or

ascertainable

damages

due

to

the

breach.

Accordingly, defendants’ motion will be granted as to plaintiff’s
breach of contract claim.7
III. CONCLUSION
In conclusion, plaintiff fails to demonstrate that there are
fact questions that need to be resolved in order decide his NJCFA,
NYGBL, common law fraud and breach of contract claims. Plaintiff’s
failure to raise a genuine issue of material fact with record
evidence is compounded by his attempt to oppose defendants’ summary
judgment motion with

“speculation and conjecture.”

Therefore,

plaintiff’s claims fail as a matter of law and summary judgment

Plaintiff now speculates “he may prevail on quasi-contract
detrimental reliance theories as well” for his “lost time and
opportunity.” Pl.’s Opp’n at 23. The Court will not consider this
new claim without factual support. Further, this claim was not
pleaded by plaintiff. Holland v. Simon Prop. Grp., Inc., 495 Fed.
Appx. 270, 273 n.10 (3d Cir. 2012) (noting that the District Court
correctly declined to consider claims asserted for the first time
in plaintiff’s opposition brief to a motion for summary judgment).
7

25

will be granted in defendants’ favor. An appropriate Order will be
separately entered.

s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

Dated: March 17, 2017

26