MURRAY v. LIFETIME BRANDS, INC.

Filing 16

OPINION FILED. Signed by Judge Noel L. Hillman on 5/5/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HONORABLE NOEL L. HILLMAN

NICOLE MURRAY,

CIVIL ACTION NO. 16-5016

Plaintiff,

OPINION

v.
LIFETIME BRANDS, INC.,
Defendant.

APPEARANCES:
CLARK LAW FIRM
By: Mark W. Morris, Esq.
811 16th Avenue
Belmar, New Jersey 07719
Counsel for Plaintiff
BATHGATE, WEGENER & WOLF, PC
By: Michael M. DiCicco, Esq.
William Joseph Wolf, Esq.
Christopher B. Healy, Esq.
One Airport Road
P.O. Box 2043
Lakewood, New Jersey 08701
Counsel for Defendant

HILLMAN, United States District Judge:
In this diversity suit brought pursuant to the Class Action
Fairness Act (“CAFA”), 28 U.S.C. § 1332(d), Plaintiff Nicole
Murray asserts that Defendant Lifetime Brands, Inc., violated the
New Jersey Truth-in-Consumer Contract, Warranty and Notice Act

1

(“TCCWNA”), N.J.S.A. 56:12-14 et seq., by allegedly failing to
disclose certain information on its website. 1
Lifetime moves to dismiss the Complaint pursuant to Fed. R.
Civ. P. 12(b)(1), arguing that Murray has not sufficiently alleged
facts supporting a conclusion that she has suffered a concrete
injury in fact as required by Article III of the United States
Constitution. 2

Thus, Lifetime argues, this Court lacks Article III

This is one of several putative class action suits filed in this
District all asserting basically the same claim against various
sellers. See, e.g., Rubin v. J. Crew Group, Inc., 2017 U.S. Dist.
LEXIS 46389 at *21-22 (D.N.J. Mar. 29, 2017)(Wolfson,
D.J.)(dismissing putative class action TCCWNA complaint for lack
of Article III standing, and observing, “[t]he Court is aware that
there are numerous class actions filed in this district based upon
similar TCCWNA violations alleged in this case. While the intent
of the New Jersey legislature in enacting the TCCWNA is to provide
additional protections for consumers in this state from unfair
business practices, the passage of the Act is not intended,
however, for litigation-seeking plaintiffs and/or their counsel to
troll the internet to find potential violations under the TCCWNA
without any underlying harm. In such instances, standing would be
lacking.”); Hite v. Lush Internet Inc., 2017 U.S. Dist. LEXIS
40949 (D.N.J. Mar. 21, 2017)(Simandle, C.D.J.)(dismissing putative
class action TCCWNA complaint for lack of standing); Hecht v.
Hertz Corp., 2016 U.S. Dist. LEXIS 145589 (D.N.J. Oct. 20,
2016)(Martini, D.J.)(dismissing putative class action TCCWNA
complaint for lack of standing); see also Candelario v. RIP Curl,
Inc., 2016 U.S. Dist. LEXIS 163019 (C.D. Cal. Sept. 7,
2016)(dismissing putative class action New Jersey TCCWNA complaint
for lack of Article III standing).
1

Lifetime asserts additional arguments pursuant to Fed. R. Civ.
P. 12(b)(6). However, in light of the disposition of the subject
matter jurisdiction issue, the Court does not reach those other
arguments.
2

2

subject matter jurisdiction 3 to hear this case and Murray’s
proposed class action complaint must be dismissed.
The Court holds that Murray has not sufficiently pled a
concrete injury in fact.

Accordingly, the Motion to Dismiss will

be granted.
I.
Defendant Lifetime sells tableware (e.g., plates, cups,
bowls, vases, etc.) on its website, mikasa.com.

The Complaint

alleges that on May 23, 2016, Plaintiff Murray purchased four
fruit bowls through the website. (Compl. ¶ 4)

The Complaint

further alleges, “[u]pon receiving the four fruit bowls, [Murray]
determined that the products did not meet her quality expectations
as depicted on [Lifetime’s] website. . . . [Murray] thereafter
reviewed [Lifetime’s] ‘Terms of Use’ on [Lifetime’s] website.”
(Id.)
The Complaint alleges no further information specific to
Murray.

The remainder of the 28-page, 90-paragraph Complaint is

mainly dedicated to explaining how Lifetime’s website “Terms of
Use” allegedly violates New Jersey’s TCCWNA.

Thus, while the

The Court has statutory diversity of citizenship subject matter
jurisdiction pursuant to CAFA. But, of course, this Court must
have both statutory and constitutional subject matter jurisdiction
in order to adjudicate the instant case. See generally Martin v.
Hunter’s Lessee, 14 U.S. 304, 329 (1816)(Story, J.)(Article III’s
“judicial power must, therefore, be vested in some court, by
congress.”).
3
3

Complaint asserts only one count - violation of the TCCWNA, Murray
appears to assert six separate theories of liability.

According

to the Complaint, the Terms of Use violate the TCCWNA by
allegedly:
(1)
Disclaiming tort liability through the use
of an “exculpatory clause” (Compl. ¶¶ 17-20);
(2)
Including a “‘Limitations on Liability’
provision” which allegedly “deprive[s] customers of
their rights and remedies under the New Jersey
Product Liability Act” (Compl. ¶¶ 21-30);
(3)
Including
an
indemnification
provision
which provides that website users will indemnify
Lifetime for liability arising out of users’ posting
users’ own content on the website (Compl. ¶¶ 3133);
(4)
Including a “‘Limitations on Liability’
provision” which allegedly “absolve[s] [Lifetime]
of its duty to protect customers from harm arising
from third-party acts” (Compl. ¶¶ 34-45);
(5)
Including
a
provision
which
allegedly
“take[s] away [customers’] clearly established
right under the [New Jersey Punitive Damages Act]
to pursue punitive damages” against Lifetime
(Compl. ¶¶ 46-52); and
(6)
Failing to specify which provisions of the
Terms of Use are unenforceable against website
visitors from New Jersey (Compl. ¶¶ 53-57).
The TCCWNA provides, in relevant part,
No seller . . . shall in the course of his business
offer to any consumer or prospective consumer or
enter into any written consumer contract or give or
display any written consumer warranty, notice or
sign . . . which includes any provision that
violates any clearly established legal right of a
consumer or responsibility of a seller . . . as
established by State or Federal law at the time the
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offer is made or the consumer contract is signed or
the warranty, notice or sign is given or displayed.
N.J.S.A. § 56:12-15.
II.
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) challenges the existence of a federal court’s
subject matter jurisdiction.

Facial attacks contest the

sufficiency of the pleadings, and in reviewing such attacks, the
Court accepts the allegations as true. Common Cause of Pa. v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009), cert. denied, 558
U.S. 1091 (2009).
III.
“The irreducible constitutional minimum of standing consists
of three elements.

The plaintiff must have (1) suffered an injury

in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.

The plaintiff, as the party invoking

federal jurisdiction, bears the burden of establishing these
elements.

Where, as here, a case is at the pleading stage, the

plaintiff must clearly allege facts demonstrating each element.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)(internal
citations and quotations omitted).
Lifetime challenges the first element, arguing that Murray
fails to allege a sufficiently concrete injury in fact.
5

As the Supreme Court most recently explained in Spokeo, “[a]
‘concrete’ injury must be ‘de facto’; that is, it must actually
exist”; it must be “‘real,’ and not ‘abstract.’” 136 S.Ct. at
1548.

Further, some “intangible injuries can [] be concrete.” Id.

at 1549.

“In determining whether an intangible harm constitutes

an injury in fact,” the Court considers (1) “whether an alleged
intangible harm has a close relationship to a harm that has
traditionally been regarded as providing a basis for a lawsuit in
English or American courts”; and (2) whether Congress has
“elevate[d] to the status of legally cognizable injuries concrete,
de facto injuries that were previously inadequate in law.” Id.
Murray asserts that she has suffered an unspecified intangible
“informational injury.” (Opposition Brief, p. 5)
A review of the relevant post-Spokeo caselaw suggests that
intangible informational injury cases fall into two general
categories: first, cases involving affirmative disclosures of
legally protected information, see, e.g., In re: Horizon
Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625, 629
(3d Cir. 2017)(holding “[i]n light of the congressional decision
to create a remedy for the unauthorized transfer of personal
information, a violation of [the Fair Credit Reporting Act] gives
rise to an injury sufficient for Article III standing purposes. .
. . [T]he alleged disclosure of [plaintiffs’] personal information
created a de facto injury.”); and second, cases involving
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“unlawful denial of access to information subject to disclosure.”
In re: Nickelodeon Consumer Privacy Litigation, 827 F.3d 262, 27374 (3d Cir. 2016). 4
Murray argues that her case falls in the second category.
(Opposition Brief, p. 5)

Unfortunately, there is less guidance

from the Supreme Court and the Third Circuit concerning injuries
resulting from failures to disclose.

Spokeo is an affirmative

disclosure case, 136 S.Ct. at 1546 (alleged disclosure of
inaccurate personal information), as are Horizon and Nickelodeon.
See also, Bock, Jr. v. Pressler & Pressler, LLP, 658 F. App’x 63,
64 (3d Cir. 2016)(“Bock alleged that Pressler and Pressler made a
false or misleading representation in violation of the Fair Debt
Collection Practices Act.”).
Spokeo and Nickelodeon, however, cite with approval Federal
Election Commission v. Akins, 524 U.S. 11 (1998), which does
provide an example. 5

In Akins, a group of voters challenged the

FEC’s decision not to bring an enforcement action to compel AIPAC,
a political committee, to comply with the extensive disclosure

While Nickelodeon identified this second category of intangible
informational injury case, the facts of Nickelodeon place it in
the first category. See 827 F.3d at 274 (“While perhaps
‘intangible,’ the harm is also concrete in the sense that it
involves a clear de facto, injury, i.e., the unlawful disclosure
of legally protected information.”).
4

5

Murray cites Akins in her brief but does not discuss it.
7

requirements of the Federal Election Campaign Act. 524 U.S. at 13.
In holding that the respondent voters had suffered an injury in
fact, the Court explained,
[t]he ‘injury in fact’ that respondents have
suffered consists of their inability to obtain
information -- lists of AIPAC donors (who are,
according to AIPAC, its members), and campaignrelated contributions and expenditures -- that, on
respondents’ view of the law, the statute requires
that AIPAC make public. There is no reason to doubt
their claim that the information would help them
(and others to whom they would communicate it) to
evaluate candidates for public office, especially
candidates who received assistance from AIPAC, and
to evaluate the role that AIPAC’s financial
assistance might play in a specific election.
Respondents’ injury consequently seems concrete and
particular.
Akins, 524 U.S. at 21.
Thus, the Supreme Court explained, the harm the voters
suffered as a result of the failure to disclose was an impaired
ability to make informed voting decisions.
Another example is Public Citizen v. United States Dep't of
Justice, 491 U.S. 440 (1989)(cited with approval in Spokeo). 6

In

Public Citizen, plaintiffs sought disclosure of the names of
potential federal judicial nominees pursuant to the Federal
Advisory Committee Act.

The Supreme Court held that the

plaintiffs, the Washington Legal Foundation and Public Citizen,
had suffered a sufficiently concrete injury, explaining,

Murray cites Public Citizen in her brief but does not discuss
it.
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6

“[appellants] seek access to the ABA Committee’s meetings and
records in order to monitor its workings and participate more
effectively in the judicial selection process.” Id. at 449 (1989).
Thus, similar to Akins, the harm the Public Citizen plaintiffs
suffered as a result of the failure to disclose was an impaired
ability to meaningfully participate in the judicial selection
process.
Here, in contrast, Murray has not pled that she suffered any
harm as a result of the alleged failure to disclose.

Murray

states in her brief that “‘[t]he [New Jersey] Legislature enacted
the TCCWNA to permit consumers to know the full terms and
conditions of the . . . consumer contract into which they decide
to enter.’” (Opposition Br. P. 8, quoting Shelton v.
Restaurant.com Inc., 214 N.J. 419, 431 (2013))

Critically, what

Murray fails to do, however, is identify the harm that resulted
from allegedly not knowing what she asserts the TCCWNA requires
Lifetime to tell her.

As a matter of logic, Murray cannot allege

that she would have made a different purchasing decision because
her Complaint is clear that she did not read the Terms of Use
until after her purchase was delivered.
The omission of any allegation of harm is fatal to Murray’s
case.

Only after a harm is identified can the Court go on to the

first element of Spokeo’s concreteness analysis, which asks
“whether an alleged intangible harm has a close relationship to a
9

harm that has traditionally been regarded as providing a basis for
a lawsuit in English or American courts.” Spokeo, 136 S. Ct. at
1549. 7
Accordingly, the Court holds that the Complaint fails to
sufficiently allege Murray’s Article III standing to bring this
suit.

Lifetime’s Motion to Dismiss the Complaint for lack of

subject matter jurisdiction will be granted.
IV.
For the reasons set forth above, Lifetime’s Motion to Dismiss
for lack of subject matter jurisdiction will be granted and the
Complaint will be dismissed without prejudice.

An appropriate

Order accompanies this Opinion.

Dated: May 5, 2016
At Camden, New Jersey

___s/ Noel L. Hillman ___
Noel L. Hillman, U.S.D.J.

While Murray attempts to address this first element by arguing
that “the TCCWNA is similar to the common law rule against the
enforcement of unconscionable contracts” (Opposition Brief, p. 7),
the argument misses the mark because it does not identify the harm
Murray allegedly suffered.
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