PLANTATION BAY, LLC v. STEWART TITLE GUARANTY COMPANY et al
Filing
33
OPINION. Signed by Chief Judge Jerome B. Simandle on 8/29/2016. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PLANTATION BAY, LLC,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-2042 (JBS/AMD)
v.
STEWART TITLE GUARANTY
COMPANY,
OPINION
Defendant.
APPEARANCES:
Thomas W. Sheridan, Esq.
Christopher D. Hinderliter, Esq.
Samantha J. Banks, Esq.
Sheridan & Murray, LLC
424 S. Bethlehem Pike, Third Floor
Fort Washington, PA 19034
Attorneys for Plaintiff, Plantation Bay, LLC
Frederick W. Alworth, Esq.
Joshua R. Elias, Esq.
Kevin R. Reich, Esq.
Gibbons, P.C.
One Gateway Center
Newark, NJ 07102
Attorneys for Defendant, Stewart Title Guaranty Company
SIMANDLE, Chief Judge:
INTRODUCTION
This case arises from an 89-year-old restriction on the use
of a parcel of land in the City of Somers Point, New Jersey.
Plaintiff Plantation Bay, LLC, the landowner, brings this suit
against Defendant Stewart Title Guaranty Company, the issuer of
its title insurance policy, alleging that Defendant
misrepresented the nature and enforceability of a 1927 deed
restriction on its Property and that Defendant has breached the
insurance contract by failing to pay for the Property’s loss in
value caused by that restriction. Defendant has filed a motion
to dismiss, arguing that Plaintiff’s losses from the deed
restriction are excluded from coverage under its title insurance
policy and that Plaintiff has failed to state a claim under the
New Jersey Consumer Fraud Act. For the following reasons, the
Court will grant in part and deny in part Defendant’s motion.
BACKGROUND1
Plaintiff Plantation Bay, LLC owns a piece of property
(“the Property”) in the City of Somers Point, Atlantic County,
New Jersey. (Am. Compl. ¶ 42.) The Property contains an 18-hole
golf course that was originally constructed in 1923. (Id. ¶ 43.)
When the Property was transferred to a new owner in 1927, the
deed contained a restriction (“the 1927 Deed Restriction”) that
proscribed that the Property “shall be used for no other purpose
than a Golf Course.” (Id. ¶ 45.)
1
For purposes of the pending motions, the Court accepts as true
the version of events set forth in Plaintiff’s Complaint,
documents explicitly relied upon in the Complaint, and matters
of public record. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d
Cir. 2014).
2
Plaintiff purchased the Property on March 16, 2004 for
$9,100,000. (Id. ¶ 50.) The deed that transferred the Property
to Plaintiff stated that the transfer was “UNDER AND SUBJECT TO
any and all restrictions of record.” (Id. ¶ 51.) That deed was
recorded on August 17, 2004 and “contains no restrictions,
covenants or conditions as to the use of the Property.” (Id. ¶
52.) Plaintiff planned to redevelop the Property with a few
hundred housing units, including units designated for affordable
housing, and a hotel; Plaintiff alleges that it was told “that
there were no deed restrictions limiting its ability to do so.”
(Id. ¶ 53.)
Consistent with its obligations under its purchase
agreement, Plaintiff engaged Defendant Stewart Title Guaranty
Company, through its agents Title Company of New Jersey and
William Gillingham, to order a title commitment and to issue
Plaintiff an owner’s policy of title insurance for $6,752,500.
(Id. ¶ 55.) Defendant was allegedly aware of Plaintiff’s
redevelopment plan for the Property. (Id. ¶ 56.) Defendant knew
about the 1927 Deed Restriction, but represented to Plaintiff
“that the deed restriction was NOT enforceable and would NOT act
to prevent Plaintiff, Plantation Bay, LLC from developing the
Property pursuant to the Redevelopment plan” because the
restriction was a personal covenant between the grantor and the
grantee of the 1927 deed and did not run with the land. (Id. ¶
3
58.) On the basis of that advice, Plaintiff finalized its
purchase of the Property and purchased its title insurance
policy. (Id. ¶ 65.)
Pursuant to Plaintiff’s title insurance policy, Defendant
“insured against loss or damage, up to the policy limits of
$6,752,500, by reason of any defect in or lien or encumbrance on
the title, subject to exclusions and exceptions from coverage.”
(Id. ¶ 61.) The title jacket of Plaintiff’s title insurance
provides that
The following matters are expressly excluded from the
coverage of this policy and the Company will not pay
loss or damages, costs, attorneys’ fees or expenses
which arise by reason of: . . . 3. Defects, liens,
encumbrances, adverse claims or other matters: (a)
created, suffered, assumed or agreed to by the insured
claimant.
(Am. Compl. Ex. A (Title Insurance Policy) [Docket Item 18-1].)
While an original proposed version of the insurance policy
listed the 1927 Deed Restriction as an exception to coverage,
Defendant removed the 1927 Deed Restriction as an exception
under the policy at Plaintiff’s request, and the 1927 Deed
Restriction appears nowhere in the policy. (Id. ¶¶ 61-64; see
also Policy at Schedule B.)
In November 2004, the Somers Point City Counsel designated
part of the City, including Plaintiff’s Property, for
redevelopment, and directed Plaintiff to create a redevelopment
plan for the land. (Id. ¶ 75.) A resident association, the
4
Concerned Citizens of Somers Point, Inc. (“Concerned Citizens”),
opposed Plaintiff’s plan to replace the golf course on the
Property with housing and claimed that the 1927 Deed Restriction
was valid and enforceable and would prevent Plaintiff’s plan to
building housing on the site. (Id. ¶ 74.) The City Council never
took action on Plaintiff’s proposed redevelopment plan to build
550 housing units with 20% reserved for affordable housing on
the Property. (Id. ¶ 84.)
On July 21, 2006, Plaintiff filed suit against the City of
Somers Point, the City of Somers Point City Council, and the
City of Somers Point Planning Board in the Superior Court of New
Jersey, seeking a declaration that the City was in violation of
its constitutional obligation to provide affordable housing, as
a way to force action on its redevelopment plan for the Property
(“the Committee on Affordable Housing Litigation” or “the COAH
litigation”). (Id. ¶ 86.) See Plantation Bay, LLC v. City of
Somers Point, et al., Case No. ATL-L-7302-06. Concerned Citizens
intervened in Plaintiff’s Superior Court lawsuit, claiming that
the 1927 Deed Restriction prohibited Plaintiff’s redevelopment
plan. (Id. ¶ 87.) Consistent with the terms of Plaintiff’s title
insurance policy, Plaintiff kept Defendant informed of the COAH
litigation, and Defendant retained a law firm to represent
Plaintiff in the COAH litigation and prosecute its interest in
the Property. (Id. ¶¶ 85, 88-89.)
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The Superior Court held in March of 2009 that the 1927 Deed
Restriction ran with the land and had not been abandoned, but
reserved judgment as to whether enforcement of the restriction
would be unjust or whether the 1927 Deed Restriction should be
modified. (Id. ¶¶ 90-91.) Plaintiff thereafter provided
Defendant with a Notice of Loss or Damage, stating that as a
result of the Superior Court’s Order Plaintiff had suffered a
loss in value to the Property in excess of Plaintiff’s $6
million policy limit. (Id. ¶¶ 92-93; see also Am. Compl. Ex. C
(Proof of Loss Letter) [Docket Item 18-3].) Defendant disclaimed
coverage for any economic loss as a result of the Superior
Court’s findings and stated that Plaintiff’s Proof of Loss was
premature. (Id. ¶¶ 94-96.)
The Superior Court ultimately held in January of 2011 that
the 1927 Deed Restriction was enforceable, with certain
modifications. (Id. ¶ 98.) On the advice of counsel retained by
Defendant, Plaintiff agreed to mitigate its damages and accept
modified “restrictions on the use, sale and financial
operations” on the Property. (Id. ¶¶ 98-99.) Plaintiff avers
that the Superior Court’s enforcement of the modified 1927 Deed
Restriction has “greatly” limited its ability to develop the
Property and caused a diminution in the value of the Property in
excess of its $6 million title insurance policy with Defendant.
(Id. ¶¶ 101-105.) It asserts that the “modified Deed Restriction
6
is a defect in title which caused Plaintiff to suffer a covered
loss under the title insurance policy issued by Defendant
Stewart Title Guaranty Company.” (Id. ¶ 99.) Defendant has not
“take[n] any meaningful action to process and pay Plaintiff’s
claim for coverage under this Policy in the amount of
$6,752,500.” (Id. ¶ 109.)
Plaintiff initiated this lawsuit against Stewart Title
Guaranty Company on March 20, 2015. [Docket Item 1.] This Court
dismissed the Complaint, finding that Plaintiff had failed to
adequately establish this Court’s jurisdiction, and granted
leave to amend. [Docket Items 16 & 17.] Plaintiff timely filed
this Amended Complaint. [Docket Item 18.] Defendant filed the
instant Motion to Dismiss [Docket Item 22] which is now fully
briefed, including Plaintiff’s request to file a sur-reply.
[Docket Item 30.]2 The Court will decide these motions without
holding oral argument pursuant to Fed. R. Civ. P. 78.
STANDARD OF REVIEW
Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need
only contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Specific facts are not
required, and “the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it
2
For good cause shown, the Court will grant Plaintiff’s motion
for leave to file a sur-reply nunc pro tunc.
7
rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
omitted). While a complaint is not required to contain detailed
factual allegations, the plaintiff must provide the “grounds” of
his “entitle[ment] to relief”, which requires more than mere
labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P.,
may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that the plaintiff
failed to set forth fair notice of what the claim is and the
grounds upon which it rests. Id. A complaint will survive a
motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court
must accept as true all factual allegations in a complaint, that
tenet is “inapplicable to legal conclusions,” and “[a] pleading
that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.” Id. at 678.
In addition, Rule 9(b), Fed. R. Civ. P., imposes a
heightened pleading standard on fraud-based claims, requiring a
party to “state the circumstances constituting fraud with
particularity.” Klein v. Gen. Nutrition Companies, Inc., 186
F.3d 338, 344 (3d Cir. 1999); see also Frederico v. Home Depot,
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507 F.3d 188, 202-03 (3d Cir. 2007) (applying Fed. R. Civ. P.
9(b) to an NJCFA claim). To satisfy this standard, the plaintiff
must “plead the date, time, and place of the alleged fraud, or
otherwise inject precision into the allegations by some
alternative means.” In re Riddell Concussion Reduction Litig.,
77 F.Supp.3d 422, 433 (D.N.J. 2015). This requirement is
intended “to place the defendants on notice of the precise
misconduct with which they are charged.” Seville Indus. Mach.
Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.
1984).
DISCUSSION
Defendant raises two arguments in its motion to dismiss:
first, that Plaintiff has not stated a breach of contract or bad
faith claim because any losses caused by the 1927 Deed
Restriction are excluded from coverage under the insurance
contract, and second, that Plaintiff’s claim under the New
Jersey Consumer Fraud Act fails as a matter of law. For the
reasons that follow, the Court will grant in part and deny in
part Defendant’s motion.
A. Plaintiff Has Stated a Claim for Breach of Contract and
Bad Faith.
First, Defendant argues that the Amended Complaint does not
state a claim for breach of contract or bad faith because the
loss in value to the Property is not covered by Plaintiff’s
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title insurance policy. It is undisputed that Plaintiff’s title
insurance policy includes both “exceptions from coverage”
specific to Plaintiff’s Property listed at Schedule B (see
Policy [Docket Item 18-1] at 22-23 of 25) and “exclusions from
coverage” general to all title insurance policies on the title
jacket of the policy. (See id. at 2 of 25.) Specifically, the
policy excludes from coverage “Defects, liens, encumbrances,
adverse claims or other matters: (a) created, suffered, assumed
or agreed to by the insured claimant.” (“Exclusion 3(a)”.) (Id.)
Defendant argues that because Plaintiff “assumed or agreed”
to a defect in title when it participated in the settlement
agreement to the COAH Litigation, Exclusion 3(a) bars
Plaintiff’s request for compensation for the loss in value to
the Property. In opposition, Plaintiff argues that the relevant
defect in title is the 1927 Deed Restriction, which pre-dated
Plaintiff’s ownership of the Property and to which it never
assented, rendering Exclusion 3(a) inapplicable. Accordingly,
this motion requires the Court to decide (1) what the relevant
defect in title causing Plaintiff’s damages is, and (2) whether
Plaintiff “agreed” to that defect which limits its ability to
develop the Property, within the meaning of Exclusion 3(a).
“[I]nsurance policies must be construed to comport with the
reasonable expectations of the insured.” Gibson v. Callaghan,
730 A.2d 1278, 1283 (N.J. 1999) (citing American Motorists Ins.
10
Co. v. L-C-A Sales Co., 713 A.2d 1007 (N.J. 1998)).
“Exclusionary clauses are presumptively valid and are enforced
if they are specific, plain, clear, prominent, and not contrary
to public policy.” Flomerfelt v. Cardiello, 997 A.2d 991, 996
(N.J. 2010). However, “in general, insurance policy exclusions
must be narrowly construed” and “the burden is on the insurer to
bring the case within the exclusion.” Id. at 996-997.
According to Plaintiff’s allegations in the Amended
Complaint, the “modified Deed Restriction” resulting from the
COAH Litigation settlement is plainly a defect in title. (Am.
Compl. ¶¶ 23 (“The modified Deed Restriction is a defect in
title which caused Plaintiff to suffer a loss which Defendant
insured against with the Policy.”) & 121 (“It is indisputable
that once the modified deed restriction was enforced by Judge
Isman in 2011, there was a defect in title and Plaintiff
suffered a covered loss under the title insurance policy which
required reimbursement by Defendant, Stewart Title.”).)
Nonetheless, the modified Deed Restriction would not have
existed but for the 1927 Deed Restriction and the Superior
Court’s holding that the Deed Restriction runs with the land.
That Plaintiff may have assented to the modified deed
restriction as a means of mitigating its loss does not cure the
original title defect of which Plaintiff complains.
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As Plaintiff points out, the original title insurance
policy issued by Defendant to Plaintiff’s predecessor in
interest to the Property listed the 1927 Deed Restriction as a
Schedule B exception to coverage. (Id. ¶¶ 14, 48, 49.) The
parties negotiated and revised the terms of Plaintiff’s policy,
and because Plaintiff would not agree to waive coverage for
losses caused by the 1927 Deed Restriction, ultimately removed
the 1927 Deed Restriction from the final policy. (Id. ¶¶ 61-64.)
The absence of the Deed Restriction as an exception to coverage
from the signed contract between the parties suggests that the
parties intended for Defendant to insure against any losses
caused by that restriction on Plaintiff’s ability to redevelop
the Property.
In addition, construing the allegations in the Amended
Complaint in the light most favorable to Plaintiff, Exclusion
3(a), barring recovery for defects “created, suffered, assumed
or agreed to by the insured claimant,” is not applicable to
Plaintiff’s claim for damages caused by the 1927 Deed
Restriction. In the context of standard insurance exclusion
clauses like Exclusion 3(a), “the term ‘created’ has been
interpreted to mean the idea of knowledge, the performance of
some affirmative act by the insured, a conscious or deliberate
causation.” Feldman v. Urban Comm., Inc., 209 A.2d 640, 648
(N.J. App. Div. 1965). “An insured who creates a defect under a
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title policy generally engages in some fraudulent or inequitable
behavior.” Walsh Sec., Inc. v. Cristo Property Mgmt, Ltd., 858
F. Supp. 2d 402, 421 (D.N.J. 2012) (citing Keown v. West Jersey
Title and Guaranty Co., 390 A.2d 715, 718 (N.J. App. Div. 1978).
In contrast, “the term ‘suffer’ implies the power to prevent or
hinder, and includes knowledge of what is to be done under the
sufferance and permission, and the intention that what is done
is to be done.” Feldman, 209 A.2d at 648. New Jersey courts have
not definitively interpreted the terms “assumed” or “agreed to”
in this context, but refer to the Sixth Circuit’s interpretation
defining “assumed” as “require[ing] knowledge of the specific
title defect” and “agreed to” as “carr[ying] connotations of
‘contracted,’ thereby requiring full knowledge by the insured of
the extent and amount of the claim against the insured’s title”
and “some degree of intent.” Walsh Sec., 858 F. Supp. 2d at 42122 (citing American Sav. And Loan Ass’n v. Lawyers Title Ins.
Corp., 793 F.2d 780, 784 (6th Cir. 1986)). “[T]he application of
exclusionary clauses . . . often turns on notions of equity.”
American Sav., 793 F.2d at 784.
Defendant points to language in the Superior Court’s
decision holding that the 1927 Deed Restriction runs with the
land, appended to Plaintiff’s Proof of Loss letter, wherein the
court noted:
13
On July 29, 2008, the plaintiff and the City
tentatively settled this action by agreeing, among
other things, to permit the plaintiff to reconfigure
its 150 acre golf course and to build an inclusionary
housing development on 30 acres of the Golf Course
Property. The parties also agreed to secure a
conservation restriction for the benefit of the City
as authorized by the New Jersey Conservation
Restriction and Historic Preservation Restriction Act,
N.J.S.A. 13:8B-1 to -9, on the remaining 120 acres of
the Golf Course Property.
(Proof of Loss or Damage [Docket Item 18-3] at 13 of 33.)
According to Defendant, Plaintiff’s participation in the COAH
Litigation settlement agreement demonstrates that it “agreed
to,” or knowingly contracted for, the limitation on its ability
to develop the Property as desired.
However, Plaintiff alleges that “Defendant retained a law
firm to represent Plaintiff in the COAH litigation” and that
“counsel retained by Defendant Stewart Title recommended that
Plantation Bay mitigate its damages and accept other
restrictions on the use, sale and financial operations on the
insured property” in keeping with the requirements of its title
insurance policy. (Am. Compl. ¶¶ 89 & 98-99.) Plaintiff’s policy
requires that the insurer, Stewart Title Guaranty Company,
“shall have the right to select counsel of its choice” to
represent Plaintiff in any lawsuit litigating any “defect, lien
or encumbrance or other matter insured against by this policy,”
allows that the Company “may pursue any litigation to final
14
determination,” and obligates Plaintiff to “give the Company all
reasonable aid . . . in effecting settlement.” (Policy at Clause
4 [Docket Item 18-1 at 4 of 25].) Plaintiff’s allegations,
coupled with the language of its policy, plausibly show a lack
of control, intent, or voluntariness in its participation in the
COAH Litigation settlement agreement. If Plaintiff did not
intend to agree to a defect in title preventing its ability to
redevelop the Property, it could not have “assented” or “agreed
to” that defect within the meaning of Exclusion 3(a). Again,
Plaintiff’s compromise in settlement of the COAH litigation is
more properly viewed as an attempt to mitigate damages to its
development rights caused by the 1927 Deed Restriction.
Accordingly, the Court finds that Plaintiff has
sufficiently alleged that it is entitled to insurance
compensation for the diminution in value to the Property owing
to the enforceability of the 1927 Deed Restriction, and has
adequately set forth claims for breach of contract and bad
faith. Defendant’s motion to dismiss Counts I and II of the
Amended Complaint is denied.
B. Plaintiff Has Not Stated a Claim Under the New Jersey
Consumer Fraud Act.
Defendant next argues that Plaintiff’s New Jersey Consumer
Fraud Act (“NJCFA”) claim must be dismissed because the Act does
not apply to this case, or in the alternative, because Plaintiff
15
has insufficiently alleged a violation of the Act. The NJCFA,
N.J.S.A. § 56:8-1, et seq., makes unlawful “any unconscionable
commercial practice, deception, fraud, false promise,
misrepresentation, or the knowing concealment, suppression, or
omission of any material fact with intent that others rely upon
such concealment, suppression or omission” in connection with
the sale of “any objects, wares, goods, commodities, services,
or anything offered, directly or indirectly to the public for
sale.” N.J.S.A. §§ 56:8-1 & 2. To state a claim under the NJCFA,
“a plaintiff must allege three elements: (1) unlawful conduct;
(2) an ascertainable loss; and (3) a causal connection between
the defendants’ unlawful conduct and the plaintiffs’
ascertainable loss.” Int’l Union of Operating Eng’rs Local No.
68 Welfare Fund v. Merck & Co., 929 A.2d 1076, 1086 (N.J. 2007).
The NJCFA is to be liberally construed in favor of consumers.
Gennari v. Weichert Co. Realtors, 672 A.2d 1190, 1205 (N.J.
1996). Nonetheless, the NJCFA “is not intended to cover every
transaction that occurs in the marketplace, but, rather, its
applicability is limited to consumer transactions which are
defined both by the status of the parties and the nature of the
transaction itself.” Cetel v. Kirwan Fin. Group, Inc., 460 F.3d
494, 514 (3d Cir. 2006) (citing Arc Networks, Inc. v. Gold Phone
Card Co., Inc., 756 A.2d 636, 638 (N.J. Super. 2000)).
16
The Court will grant Defendant’s motion to dismiss the
NJCFA claim because Plaintiff has not adequately identified a
particular misrepresentation that forms the basis of Defendant’s
allegedly unlawful conduct. To state a claim under the NJCFA, a
plaintiff must show that the defendant engaged in unlawful
conduct that includes employing a misrepresentation or
intentionally omitting a material fact. Menkes v. Prudential
Ins. Co. of America, 762 F.3d 285 (3d Cir. 2014). “One who makes
an affirmative misrepresentation is liable even in the absence
of knowledge of the falsity of the misrepresentation,
negligence, or the intent to deceive.” Gennari, 691 A.2d at 365.
Here, Plaintiff alleges that Defendant “affirmatively stated to
Plantation Bay, LLC’s representatives . . . that the deed
restriction was NOT enforceable and would NOT act to prevent
Plaintiff, Plantation Bay, LLC from developing the Property
pursuant to the Redevelopment plan.” (Am. Compl. ¶ 144; see also
¶ 147(a)-(h).)
Defendant’s statement about the enforceability of the 1927
Deed Restriction, while undeniably material to Plaintiff’s
decision to purchase its title insurance policy and therefore
complete its purchase of the Property, is not a “fact” for the
purposes of fraud claims. “[N]ot just any erroneous statement
will constitute a misrepresentation prohibited by the [NJCFA].
The misrepresentation has to be one which is material to the
17
transaction and which is a statement of fact, found to be false
. . . .” Gennari, 691 A.2d at 366. “[S]tatements of opinion are
not misrepresentations prohibited by the CFA.” Baughman v. U.S.
Liability Ins. Co., 662 F. Supp. 2d 386, 401 (D.N.J. 2009). The
New Jersey Appellate Division summarized the distinction between
a representation of fact and an opinion as follows:
The distinction between fact and opinion is broadly
indicated
by
the
generalization
that
what
was
susceptible of exact knowledge when the statement was
made is usually considered to be a matter of fact.
Representations in regard to matters not susceptible of
personal knowledge are generally to be regarded as mere
expressions of opinion, and this is held to be so even
though they are made positively and as though they are
based on the maker's own knowledge. Usually, also, to
say that a thing is only matter of opinion imports that
it is unsusceptible of proof.
Joseph J. Murphy Realty, Inc. v. Shervan, 388 A.2d 990, 993
(N.J. App. Div. 1978) (quoting 37 Am.Jur.2d, Fraud and Deceit, s
46 at 74). As in Baughman, where this Court found “statements of
opinion regarding the scope of the insurance policy”
insufficient to state a consumer fraud claim, Defendant’s
statements regarding the enforceability of the Deed Restriction
was not “susceptible of exact knowledge when the statement was
made” or a “matter susceptible of personal knowledge.”
Defendant’s statements were more akin to legal opinions about
enforceability requiring application of principles of law to
factual circumstances, but the statements are not themselves
facts for the purposes of a consumer fraud claim. Accordingly,
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the Court will grant Defendant’s motion to dismiss Count III of
the Amended Complaint under the NJCFA.
C. Diversity of Citizenship Jurisdiction
Defendant also argues, by footnote, that this Court lacks
jurisdiction because Plaintiff again failed to properly prove
diversity of citizenship when it plead the “residences” and not
the “domiciles” of each member or partner of Plaintiff’s
organization. (Def. Br. at 9 n. 6.) Despite Defendant’s
contention, the Amended Complaint adequately alleges that the
“states of citizenship of the partners and/or members of
Plantation Bay, LLC, are New Jersey, Pennsylvania, and Florida”
and that Defendant Stewart Title Guaranty Company is a citizen
of Texas. (Am. Compl. ¶¶ 33 & 34.) Absent any reason to doubt
Plaintiff’s allegations that these states are not just the
residences but the domiciles of each of the individuals who make
up the limited liability corporation, the Court finds upon the
face of the complaint that complete diversity exists between the
parties and this Court has jurisdiction to hear the case.
CONCLUSION
An accompanying Order will be entered.
August 29, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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