BROWN v. SHARKNINJA OPERATING LLC
Filing
21
OPINION. Signed by Judge Edward S. Kiel on 10/23/2024. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PATRICIA BROWN, on behalf of
herself and all others similarly
situated,
Case No. 23–21135–ESK–MJS
Plaintiff,
OPINION
v.
SHARKNINJA OPERATING LLC,
Defendant.
KIEL, U.S.D.J.
THIS MATTER is before the Court on defendant SharkNinja Operating
LLC’s motion to dismiss (Motion) (ECF No. 10).
Plaintiff Patricia Brown filed
an opposition (ECF No. 16 (Pl.’s Opp’n Br.)) to which defendant replied (ECF
No. 19 (Def.’s Reply Br.)). 1
For the following reasons, the Motion will be
GRANTED.
I.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a domiciliary of Monmouth County, New Jersey.
(ECF No. 1
(Compl.) p. 4.) She seeks to represent a class of consumers who purchased
defendant’s cookware in New Jersey based on representations that the
cookware would not stick, chip, or flake or that the cookware was manufactured
at 30,000 degrees Fahrenheit.
(Id. pp. 14, 15.) Defendant is a Delaware
limited liability company principally based in Massachusetts that markets,
sells, and distributes household goods.
1
(Id. p. 4.) 2
This case was reassigned to me after briefing had concluded. (ECF No. 20.)
The citizenship of a limited liability company for diversity jurisdiction purposes
is determined by the citizenship of each of its members. Zambelli Fireworks Mfg. Co.,
Inc. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010). Defendant’s corporate disclosure
2
In response to a complaint by defendant’s competitor, the National
Advertising Division of Better Business Bureau National Programs (National
Advertising Division) ruled in August 2021 that defendant’s claims that its
NeverStick Premium Cookware “‘never sticks’ … convey[ed] an unsupported
superiority message that, unlike traditional non-stick cookware which rapidly
loses its non-stick properties, NeverStick cookware would exhibit a greater level
of resistance against sticking, chipping, and flaking.”
(Id. pp. 6, 7.)
Defendant later changed its packaging and advertising to include claims that
products “[w]on’t” rather than will “[n]ever” stick, chip, or flake.
(Id. pp. 7, 8.)
Both before and after the ruling, defendant promoted its NeverStick Premium
Cookware as being manufactured using a 30,000-degree process that ensured
that products would not stick, chip, of flake while competitors merely
manufactured products at 900 degrees.
(Id. p. 8.)
Defendant’s claims on packaging and in product descriptions are false,
misleading, and deceiving to a reasonable consumer for two reasons, according
to plaintiff.
(Id. p. 12.) First, defendant’s products do chip, flake, and lose
their nonstick properties within a few months of purchase or lose their nonstick
properties more rapidly than the less-expensive products of competitors.
(Id.)
Second, defendant’s purported 30,000-degree manufacturing process not only
fails to ensure that products will not chip, flake, or lose their nonstick
properties, but the process itself is impossible as aluminum would vaporize at
such temperatures.
(Id.)
Plaintiff purchased two of defendant’s 12-inch frying pans from Macy’s
website in September 2021.
(Id. p. 13.) Prior to her purchase, plaintiff viewed
defendant’s “NeverStick” brand name; claim that products either never or
statement represents that after several layers of wholly owned entity after wholly
owned entity, the remaining entity is “SharkNinja, Inc., a publicly held exempted
company incorporated in the Cayman Islands.” (ECF No. 8.)
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would not stick, chip, or flake as compared to competing products; and that
products would not rapidly lose their nonstick properties due to defendant’s
30,000-degree
manufacturing
process.
(Id.) If
plaintiff
knew
that
defendant’s products chip, flake, or lose their nonstick properties within a few
months or more rapidly than less-expensive competitors; defendant’s purported
30,000-degree manufacturing process is impossible or fails to ensure that
products will not chip, flake, or lose their nonstick properties; and defendant’s
claims were deceptive she would not have purchased the pans or would not have
paid a premium price for them.
(Id. pp. 13, 14.) Plaintiff states as an example
that defendant’s 10- and 12-inch NeverStick Premium Cookware pans sell for
$49.99 and $59.99, respectively.
(Id. p. 14.) Comparable Farberware 10- and
12-inch pans sell for $8.97 and $19.99, respectively, with three-pan sets
available for $22.99. (Id.)
Plaintiff asserts a single count, violation of the New Jersey Consumer
Fraud Act (Consumer Fraud Act).
(Id. p. 17.) Defendant continues to violate
the Consumer Fraud Act through deception, fraud, false promises, or
misrepresentations, according to plaintiff. (Id. p. 18.)
Plaintiff and proposed
class members have suffered economic injuries because they otherwise would
not have purchased defendant’s products or would not have paid as much for
them.
(Id. pp. 17, 18.) Plaintiff seeks class certification, damages, statutory
treble damages, interest, and reasonable fees and costs.
II.
(Id. p. 18.)
STANDARDS
A.
Motions to Dismiss
Prior to the filing of a responsive pleading, a defendant may move to
dismiss a complaint for failure to state a claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6).
To survive dismissal under Rule 12(b)(6), “a
complaint must provide ‘a short and plain statement of the claim showing that
the pleader is entitled to relief,’” Doe v. Princeton Univ., 30 F.4th 335, 341 (3d
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Cir. 2022) (quoting Fed. R. Civ. P. 8(a)(2)), and—accepting the plaintiff’s factual
assertions, but not legal conclusions, as true—“‘plausibly suggest[]’ facts
sufficient to ‘draw the reasonable inference that the defendant is liable for the
misconduct alleged,’” id. at 342 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Courts further
evaluate the sufficiency of a complaint by “(1) identifying the elements of the
claim, (2) reviewing the complaint to strike conclusory allegations, and then (3)
looking at the well-pleaded components of the complaint and evaluating
whether all of the elements identified in part one of the inquiry are sufficiently
alleged.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
B.
Consumer Fraud Act
The Consumer Fraud Act prohibits:
The act, use or employment by any person of any
commercial practice that is unconscionable or abusive,
deception, fraud, false pretense, 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 or advertisement of
any merchandise ….
N.J. Stat. Ann. § 56:8–2.
In order to state a claim under the Consumer Fraud Act, a plaintiff “must
allege: ‘(1) unlawful conduct; (2) an ascertainable loss; and (3) a causal
relationship between the unlawful conduct and the ascertainable loss.’”
Calabria Ristorante, Inc. v. Ruggiero Seafood, Inc., 706 F. Supp. 3d 489, 514
(D.N.J. 2023) (quoting Francis E. Parker Mem’l Home, Inc. v. Ga.-Pac. LLC, 945
F. Supp. 2d 543, 558 (D.N.J. 2013)).
The heightened pleading standard of
Federal Rule of Civil Procedure (Rule) 9(b) applies to claims brought under the
Consumer Fraud Act.
Mladenov v. Wegmans Food Mkts., Inc., 124 F. Supp. 3d
360, 373 (D.N.J. 2015).
To satisfy this heightened pleading standard, the
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plaintiff must set forth their allegation “with sufficient particularity to place
the defendant on notice of the precise misconduct with which it is charged and
plead or allege the date, time and place of the alleged fraud or otherwise inject
precision or some measure of substantiation into a fraud allegation.”
Calabria
Ristorante, Inc., 706 F. Supp. 3d at 515 (quoting Alpizar-Fallas v. Favero, 908
F.3d 910, 919 (3d Cir. 2018)).
III. DISCUSSION
A.
Party Arguments
Defendant asserts that plaintiff’s claims fail for two reasons: she has not
alleged a misrepresentation or an ascertainable loss.
(ECF No. 10–1 (Def.’s
Mot. Br.) p. 11.) With respect to its assertion that a misrepresentation has not
been alleged, defendant contends that it has represented that super-heated
plasma ceramic particles are fused to its pans, not that the pans themselves are
heated to 30,000 degrees.
(Id. p. 14) The screenshot of a 40-second video
included in the complaint mischaracterizes the 30,000-degree representation
and omits the fact that a reasonable consumer watching the video would know
that ceramic particles, not the pan, are heated at such temperatures.
(Id.)
Plaintiff has not claimed that defendant’s actual representations are false by
alleging that defendant’s manufacturing process does not create a superior bond
as compared to competitors’ processes or that her pans have actually chipped,
flaked, or lost their nonstick properties.
(Id. p. 15.) Generally, plaintiff has
failed to plead with particularity as required by Rule 9(b), according to
defendant.
(Id. pp. 15, 16.)
Next, defendant contends that plaintiff has not pleaded an ascertainable
loss.
Plaintiff has not alleged that her pans are worthless, according to
defendant.
(Id. p. 17.) Therefore, she was required to show the difference
between the pans that she was promised and the ones that she received.
(Id.)
Plaintiff was promised a more durable, nonstick surface and the complaint does
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not allege that defendant’s pans did not provide a more durable, nonstick
surface or that her pans actually chipped, flaked, or lost their nonstick
properties.
(Id. pp. 18, 19.) The complaint further fails to allege what
plaintiff actually paid for her pans or that Farberware products are comparable
in quality, durability, or material.
(Id. pp. 19, 20.)
Plaintiff responds that whether a statement has a capacity to mislead is a
question of fact inappropriate for a motion to dismiss and that her pleading
satisfies Rule 9(b)’s standard.
(Pl.’s Opp’n Br. pp. 13, 14.) Defendant has
falsely and misleadingly conveyed to consumers that cookware manufactured
at
30,000
degrees
is
superior
to
products
manufactured
at
lower
temperatures—a claim that is especially deceptive when combined with the
“NeverStick” brand name.
(Id. pp. 15–20). Defendant engages in “sleight of
hand” by arguing that its advertising imagery is not meant to convey that entire
pans are manufactured at 30,000 degrees, according to plaintiff.
(Id. pp. 20,
21.) The advertising imagery lacks any representations that ceramic particles,
not pans, are heated to 30,000 degrees and the notion that any aluminum pan
may come into contact with a particle heated at 30,000 degrees defies physics.
(Id. p. 21.) The average consumer associates ovens and stoves with high
temperatures and would be misled by representations of a 30,000-degree
manufacturing process paired with claims that products “[n]ever” or “[w]on’t”
stick, even if defendant’s representations are literally true in part.
(Id. pp. 23,
24.) Plaintiff asserts that her claims are buttressed by the 2021 National
Advertising Division ruling.
(Id. pp. 25–28.)
Plaintiff adds that she has adequately pleaded an ascertainable loss based
on price premium, with sample prices of defendant’s products and comparable
competing products provided.
(Id. pp. 30–32.) Defendant’s argument that
Farberware products are not comparable to its own is inappropriate for the
pleading stage, according to plaintiff.
(Id. p. 32.) Finally, plaintiff requests
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that if the Court decides to grant dismissal based on a pleading deficiency, that
it do so without prejudice.
B.
(Id. pp. 33, 34.)
Analysis
Unlawful conduct under the Consumer Fraud Act “falls into three general
categories: ‘affirmative acts, knowing omissions, and violation of regulations
promulgated under N.J. Stat. Ann. §§ 56:8–2, 56:8–4.’”
Dzielak v. Whirlpool
Corp., 26 F. Supp. 3d 304, 333 (D.N.J. 2014) (quoting Harnish v. Widener Univ.
Sch. of Law, 931 F. Supp. 2d 641, 648 (D.N.J. 2013)).
Plaintiff’s complaint and
opposition make clear that she alleges that defendant has engaged in
affirmative misrepresentative acts.
(Compl., Pl.’s Opp’n Br.) To meet the
Rule 9(b) pleading standard for affirmative acts, “a plaintiff need not plead the
particular date, time or place of the fraud; however, ‘the plaintiff must indicate
at the very least who made the material representation giving rise to the claim
and what specific representations were made.’”
Mladenov, 124 F. Supp. 3d at
373 (quoting NN & R, Inc. v. One Beacon Ins. Grp., 362 F. Supp. 2d 514, 518
(D.N.J. 2005)).
Here, plaintiff alleges that she viewed defendant’s “NeverStick” brand
name; claim that products do not stick, chip, or flake; and representation that
products do not rapidly lose their nonstick properties as compared to competing
products due to its 30,000-degree manufacturing process.
(Compl. p. 13.)
Plaintiff alleges that she viewed these representations prior to her purchase of
two pans in September 2021.
(Id.)
The parties’ briefing separate defendant’s alleged misrepresentations into
two general categories: 1) that defendant’s products are manufactured at 30,000
degrees and 2) that defendant’s products do not stick, chip, or flake.
On the
issue of defendant’s 30,000-degree manufacturing process, defendant contends
that it has made no representation that entire pans, rather than plasma
ceramic particles sprayed onto the pans, are heated to 30,000 degrees.
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(Def.’s
Mot. Br. p. 14.) Defendant asserts that plaintiff mischaracterizes its
advertisement by omitting a frame that states that plasma ceramic particles
are heated to 30,000 degrees.
(Id. pp. 8, 14.)
There are two problems with defendant’s rebuttal.
First, a district court
may not consider materials extraneous to the pleading when ruling on a motion
to dismiss.
See Doe, 30 F.4th at 342.
Exceptions include materials integral
to, or explicitly relied upon in, the pleading such as “exhibits attached to the
Complaint, matters of public record, and undisputedly authentic documents if
the plaintiff’s claims are based upon those documents.”
Red Hawk Fire & Sec.,
LLC v. Siemens Indus. Inc., 449 F. Supp. 3d 449, 459 (D.N.J. 2020).
literally true statements may nonetheless mislead a consumer.
Second,
Smajlaj v.
Campbell Soup Co., 782 F. Supp. 2d 84, 98 (D.N.J. 2011).
Defendant’s argument and, especially, its reference to additional frames
of its advertisement do not fit within the narrow carve-out of extraneous
materials that I may consider at this stage.
449 F. Supp. 3d at 459.
See Red Hawk Fire & Sec., LLC,
If defendant believes that plaintiff has misled the
Court, its proper recourse is to move for sanctions by asserting that plaintiff’s
factual contentions do not and will not have evidentiary support.
See Fed. R.
Civ. P. 11(b)(3), (c); see also Shepperson v. Hernandez, Case No. 19–19305, 2021
WL 2104978, at *3, 3 n. 2 (D.N.J. May 25, 2021) (accepting the plaintiff’s
allegations at the dismissal stage as true, presuming compliance with Rule 11,
and noting that Rule 11 sanctions could later be imposed if the plaintiff did not
have a good-faith belief that factual contentions would have evidentiary
support).
I will not expand the record at the dismissal stage.
Plaintiff’s claim that products chip, flake, and lose their nonstick
properties provides a thornier issue.
As defendant notes (Def.’s Mot. Br. p. 15),
plaintiff does not allege in the complaint that her pans have chipped, flaked, or
lost their nonstick properties.
Plaintiff attempts to remedy this omission in
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her opposition (Pl.’s Opp’n Br. p. 15), but “it is ‘axiomatic that the complaint
may not be amended by the briefs in opposition to a motion to dismiss.’”
Olson
v. Ako, 724 F. App’x 160, 166 (3d Cir. 2018) (quoting Commonwealth of Pa. ex
rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)).
I further
decline plaintiff’s invitation to infer from the National Advertising Division’s
ruling that defendant conveys a false and misleading message of superiority
that its products feature a greater resistance to chipping, flaking, and losing
their nonstick properties.
(Pl.’s Opp’n Br. pp. 30, 31.)
Without claiming that her pans actually chipped, flaked, or lost their
nonstick properties, plaintiff does not plead how the pans “fell short of [her]
expectations.”
See Mason v. Coca-Cola Co., 774 F. Supp. 2d 699, 703 (D.N.J.
2011) (stating that the claim that Diet Coke Plus contained vitamins and
minerals was true and that the plaintiffs failed to allege what further
expectations they may have had or how those expectations were not met).
Instead, the complaint reads as an attempt to convert the National Advertising
Division ruling into a cause of action untethered to a named plaintiff.
Even if I were to look past this deficiency for the purposes of the unlawfulconduct prong of the Consumer Fraud Act analysis, it would rear its head in
determining whether plaintiff has pleaded an ascertainable loss.
Out-of-
pocket-loss and benefit-of-the-bargain are the two theories of ascertainable loss
under the Consumer Fraud Act.
Mladenov, 124 F. Supp. 3d at 375. Out-of-
pocket-loss is only applicable if the product is essentially worthless.
Id.
The
“benefit-of-the-bargain theory requires that the consumer be misled into buying
a product that is ultimately worth less than the product that was promised.”
Id.
A plaintiff must allege that the misrepresentation induced an objectively
reasonable and unmet expectation, but unmet expectation is alone insufficient
to claim an ascertainable loss.
Dzielak, 26 F. Supp. 3d at 335. Rather, the
plaintiff must have received a product worth objectively less than what was
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reasonably expected and quantify the difference between the product promised
and the product received.
Id.
Plaintiff makes clear that her theory of ascertainable loss is based on the
purported premium that she paid for defendant’s pans as compared to
competing products.
(Pl.’s Opp’n Br. pp. 31–33.) However, if it was plaintiff’s
expectation that the pans would not chip, flake, or lose their nonstick properties
due to defendant’s claims to that effect, “Neverstick” brand name, purported
30,000-degree manufacturing process, or the like, the complaint does not allege
that that expectation was unmet.
See Smajlaj, 782 F. Supp. 2d at 99 (“[T]he
plaintiff must allege a reasonable expectation about the product induced by a
misrepresentation, and that this expectation was not met.” (emphasis added)).
Again, without an allegation that plaintiff herself received a product worth less
than her reasonable expectation, the complaint resorts to relying on general
allegations and the National Advertising Division ruling.
Insofar as a cause
of action may exist, plaintiff has not demonstrated that she may bring it. See
Dzielak, 26 F. Supp. 3d at 332 n. 18 (“The fact that a suit is brought as a class
action ‘adds nothing to the question of standing, for even named plaintiffs who
represent a class “must allege and show that they personally have been injured,
not that injury has been suffered by other, unidentified members of the class to
which they belong and which they purport to represent.”‘” (quoting Simon v. E.
Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976))).
The complaint will therefore be dismissed for failure to state a Consumer
Fraud Act claim. Defendant contends that amendment would be futile.
(Def.’s Reply Br. pp. 13, 14.) I disagree.
Dismissal will therefore be without
prejudice to plaintiff’s filing of an amended complaint.
See Peruto v.
TimberTech Ltd., 126 F. Supp. 3d 447, 461 (D.N.J. 2015) (“Because the Court
cannot conclude that amendment would be futile, dismissal will be without
prejudice to Plaintiffs’ right to file an amended pleading curing the identified
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deficiencies within twenty-one (21) days.”).
If plaintiff elects to file an
amended complaint, she shall do so in compliance with Local Civil Rule 15.1,
including providing a copy of the amended complaint that reflects the
differences between the original and amended complaints. 3
IV. CONCLUSION
For the foregoing reasons, defendant’s Motion (ECF No. 10) will be
GRANTED.
An appropriate order accompanies this opinion.
/s/ Edward S. Kiel
EDWARD S. KIEL
UNITED STATES DISTRICT JUDGE
Dated: October 23, 2024
The parties did not brief, and this opinion is not premised on, the issue of
jurisdiction. However, any amended complaint should also more fully address how
the jurisdictional amounts are met. Plaintiff premises jurisdiction on both the Class
Action Fairness Act pursuant to 28 U.S.C. § 1332(d) and diversity jurisdiction pursuant
to 28 U.S.C. § 1332(a). (Compl. p. 5.) Insofar as jurisdiction is premised on diversity,
“in a 28 U.S.C. § 1332 diversity action, a named plaintiff must satisfy the amount in
controversy requirement.” O’Brien v. Compass Grp. USA, Inc., Case No. 17–13327,
2018 WL 5283939, at *2 n. 1 (D.N.J. Oct. 1, 2018) (quoting Czarnecki v. Hawthorn Mfg.
Corp., Case No. 08–05558, 2009 WL 159806, at *3 (E.D. Pa. Jan. 16, 2009)). It
appears improbable that plaintiff alone can satisfy the $75,000 jurisdictional amount
in a case in which damages are premised on a purported premium price of, on the highend, $59.99. (Compl. p. 14.) Jurisdiction under the Class Action Fairness Act
requires that the “matter in controversy exceeds the sum or value of $5,000,000,
exclusive of interest and costs.” 28 U.S.C. § 1332(d)(2). Plaintiff’s complaint does not
appear to plausibly allege that the amount in controversy exceeds the $5,000,000
threshold. (See Compl. p. 5 (alleging only that “the amount in controversy exceeds the
sum or value of $5,000,000.00, exclusive of interest and costs”).) I express my
concerns with plaintiff’s ability to meet it due—again—to the relatively nominal
individual values at stake. An amended complaint should provide greater detail as to
the value of the individual claims, number of potential class members, or similar
information. If plaintiff is unable to provide such details, she should proffer what
relevant information may be obtained through pre-dismissal jurisdictional discovery.
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