DEBJO SALES, LLC v. HOUGHTON MIFFLIN HARCOURT PUBLISHING COMPANY

Filing 61

OPINION. Signed by Judge Madeline C. Arleo on 4/29/15. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DEBJO SALES, LLC,
Plaintiff,
Civil Action No. 14-4657
v.
OPINION
HOUGHTON MIFFLIN HARCOURT
PUBLISHING CO.,
Defendant.

ARLEO, UNITED STATES DISTRICT JUDGE
This matter comes before this Court on Defendant’s Motion to Dismiss Plaintiff’s
Amended Complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure
12(b)(6) [Dkt. No. 34]. The Court decides the motion without oral argument pursuant to Federal
Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, the motion
is GRANTED.
I.

FACTS
This dispute concerns a textbook manufacturer’s policy requiring that its textbooks and

other educational materials must be shipped by the manufacturer, a policy stringently objected to
by a delivery service. The manufacturer here, Defendant Houghton Mifflin Harcourt Publishing
Company (“Defendant”), sells and ships educational materials throughout the United States,
including in New Jersey, and controls approximately 38% of the market share in the national K12 educational material market. Am. Compl. at 1 ¶ 2, 4 ¶ 4, 5 ¶ 5. The delivery service, Plaintiff
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Debjo Sales, LLC (“Plaintiff”), was founded in 2007 with the goal of entering into agreements
with school districts to pick up and deliver textbooks ordered by such districts from Defendant.
Id. at 2 ¶ 3.
It is unclear whether Plaintiff succeeded. Plaintiff had agreements with multiple school
districts in New Jersey to pick up school books from Defendant and deliver them to the school
districts. Id. at 6 ¶ 2. Plaintiff was also recently awarded “a Time and Materials contract through
Educational Data Services, Inc., for 650 school districts in New Jersey and 150 school districts in
New York,” which approved Plaintiff’s services for use by school districts throughout New Jersey
and New York. Id. at 4 ¶ 2. However, whether Plaintiff was paid for these agreements, the
agreements’ terms, when these agreements began, and whether these agreements constituted
enforceable contracts is never stated in the Amended Complaint.
The disputed policy change was implemented by Defendant on or around July 3, 2014. Id.
at 2 ¶ 5. Beginning on that date, Defendant required all orders under $500,000 to be shipped by
Defendant and charged a 5% handling fee for orders over $500,000 that were picked up by
customers. Id. This allegedly prevents schools from negotiating the best price for delivery of
textbooks or from choosing different modes of delivery when purchasing Defendant’s books. Id.
at 2 ¶ 6, 4 ¶ 3. Defendant was able to charge 10.5% of the total order when it shipping its books,
even though usual shipping prices are approximately 5% for this service. Id. at 3 ¶ 7.
Defendant’s policy change “caused damage” to Plaintiff’s agreements with at least twentythree schools, which Plaintiff lists in its Amended Complaint. Id. at 7 ¶ 3. Plaintiff also alleges
that some agreements with school districts were “nullified” or “rendered nullities” by Defendant’s
policy change. Id. at 3 ¶ 8, 5 ¶ 6. Other than to say that several of its agreements were damaged
or nullified, Plaintiff does not explain the effect of Defendant’s policy change. On at least one

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occasion, a school district wrote Defendant and informed it that Plaintiff was to deliver its
purchases. Id. at 6 ¶ 2.
Plaintiff now sues on four counts: illegal tying in violation of the Sherman Act § 1,1
intentional interference with contract, unjust enrichment, and tortious interference with contractual
relations. Defendant moves to dismiss these counts as inadequately pled. Because Plaintiff has
failed to plead adequate facts to state a claim under any of these causes of action, the Court
dismisses Plaintiff’s Amended Complaint without prejudice to Plaintiff’s right to refile.
II.

STANDARD OF REVIEW
In considering a Rule 12(b)(6) motion to dismiss on the pleadings, the court accepts as true

all of the facts in the complaint and draws all reasonable inferences in favor of the plaintiff.
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Moreover, dismissal is
inappropriate even where “it appears unlikely that the plaintiff can prove those facts or will
ultimately prevail on the merits.” Id.
The facts alleged, however, must be “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). The allegations in the complaint “must be enough to raise a right to relief
above the speculative level.” Id. Accordingly, a complaint will survive a motion to dismiss if it
provides a sufficient factual basis such that it states a facially plausible claim for relief. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).

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Though Plaintiff also mentions N.J.S.A. 56:9-3 in its pleading, the New Jersey statute’s language
is virtually identical to the first statement of the Sherman Act, and each party’s briefing analyzes
Plaintiff’s claims only under Section 1 of the Sherman Act. This Court therefore analyzes this
count solely under Section 1 of the Sherman Act, 15 U.S.C. § 1.
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The Court must here detour from its description of routine and universally-accepted
pleading standards to address Plaintiff’s reliance on the rejected “no set of facts” pleading standard
of Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Conley was explicitly abrogated by Twombly,
which stated that Conley’s “no set of facts” statement “has earned its retirement” and “is best
forgotten as an incomplete, negative gloss on an accepted pleading standard . . . .” Twombly, 550
U.S. at 563. Plaintiff makes much of the fact that this is an antitrust case, so the pleading standard
should be lower. But Twombly was an antitrust case. Id. Under current law, Plaintiff must plead
facts sufficient to render a cause of action plausible. Id. at 557.
III.

ANALYSIS
A. Antitrust Violation (Count I)
1. Antitrust Standing
Private parties may only bring antitrust claims if they have antitrust standing. Under

current law, competitors or consumers of the defendant in the relevant market have antitrust
standing. See Ethypharm S.A. Fr. v. Abbott Labs., 707 F.3d 223, 233 (3d Cir. 2013) (dismissing
claim for lack of standing because “antitrust injury . . . is limited to consumers and competitors in
the restrained market and to those whose injuries are the means by which the defendants seek to
achieve their anticompetitive ends”) (citation and internal quotation marks omitted).
Defendant argues that Plaintiff has failed to allege facts sufficient to show that it is a
competitor or consumer. Plaintiff argues that it was a competitor because it had “contractual
agreements” which were nullified or damaged by Defendant’s policy change, and its business
model of delivery service for educational materials was rendered inoperable by Defendant’s policy
change. Am. Compl. at 3 ¶ 8, 5 ¶ 6, 6 ¶ 2.

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In Barton & Pittinos, the Third Circuit amalgamated the Supreme Court’s analysis in
Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459
U.S. 519 (1983), into a formulation of factors that are relevant for this Court to consider when
antitrust standing is challenged:
(1) the causal connection between the antitrust violation and the harm to the
plaintiff and the intent by the defendant to cause that harm, with neither factor alone
conferring standing; (2) whether the plaintiff's alleged injury is of the type for which
the antitrust laws were intended to provide redress; (3) the directness of the injury,
which addresses the concerns that liberal application of standing principles might
produce speculative claims; (4) the existence of more direct victims of the alleged
antitrust violations; and (5) the potential for duplicative recovery or complex
apportionment of damages.
Barton & Pittinos, Inc. v. SmithKline Beecham Corp., 118 F.3d 178, 181 (3d Cir. 1997).
Considering these factors, the Court finds Plaintiff has antitrust standing.
Under factor one, although Plaintiff has demonstrated a causal connection between the
antitrust violation and harm to Plaintiff—the change in policy substantially decreased the value
proposition of Plaintiff’s service—it has failed adequately to plead facts showing that Defendant
intended to cause the harm. The second factor weighs strongly in favor of Plaintiff. Using market
power in one product to preclude competition in a distinct product to the disadvantage of the
consumer is precisely the concern antitrust tying restrictions are designed to address. Directness
of injury is less clear. The chain of causation between the policy and harm to Plaintiff is not
attenuated, but Plaintiff’s failure adequately to allege that enforceable contracts existed before
Defendant’s policy change and were invalidated by that change render any injury somewhat
speculative. Factor four slightly supports Plaintiff, as there are unlikely to be more direct victims
of a delivery policy change than Plaintiff, a company which specializes in delivery. Finally, the
potential for duplicative recovery here, though present due to the alleged harm to school districts,
does not excessively complicate this dispute, and so does not weigh strongly in either direction.
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On balance, the Court finds that the Barton factors indicate that Plaintiff has antitrust
standing due to the combination of the causal connection of harm under the theory alleged, the
type of injury of which Plaintiff complains, and the lack of powerful mitigating factors counseling
a contrary finding.
Defendant argues that Plaintiff does not have antitrust standing because it failed to show
injury to competition rather than merely to a competitor. The Court again disagrees.
Defendant cites to Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. for support. 429 U.S.
477, 488 (1977). But Brunswick was decided on a drastically different fact pattern. There, the
disputed conduct increased competition in bowling centers, and a competing bowling center sued
to recover lost profits due to the increased competition. Id. at 488. On those facts, the plaintiff
did not have antitrust standing.
This case is quite different. Plaintiff does not allege a pro-competitive action that harms
only it. The alleged conduct here—prohibiting or imposing high fees on third-party shipping—
has a plainly anticompetitive effect, and Defendant does not argue otherwise. This dispute is one
for which antitrust laws were made: preventing the tying of unrelated products by a market leader
to decrease competition. As such, Plaintiff has antitrust standing.
2. Tying
Though Plaintiff has standing to bring an antitrust claim, it still must plead facts sufficient
to state a claim in order to survive a motion to dismiss. The antitrust claim here alleges that
Defendant tied distinct products or services, in violation of the Sherman Act, 15 U.S.C. § 1. To
prove a per se tying violation, Plaintiff must allege facts plausibly showing that: “(1) a defendant
seller ties two distinct products; (2) the seller possesses market power in the tying product market;
and (3) a substantial amount of interstate commerce is affected . . . .” Town Sound & Custom

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Tops, Inc. v. Chrysler Motors Corp., 959 F.2d 468, 477 (3d Cir. 1992); see also Marchese v.
Cablevision Sys. Corp., No. 10-2190, 2012 WL 78205, at *2 (D.N.J. Jan. 9, 2012). Alternatively,
Plaintiff may rely on the rule of reason by replacing the second prong above—market power—
with proof that the defendant “unreasonably restrained competition in the tied product market.”
Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 511 (3d Cir. 1998). In its
threadbare Amended Complaint, Plaintiff fails adequately to plead any of these components. 2
a. Distinct Products
Defendant argues that no alleged facts indicate that K-12 educational materials and
delivery of the same are separate and distinct articles of commerce. The Court agrees.
Tying products (or services) together only violates antitrust law if the products are separate
and distinct. Products are distinct where there is sufficient demand for each product separately to
make it efficient for a firm to provide the products separately. See Eastman Kodak Co. v. Image
Technical Servs., Inc., 504 U.S. 451, 462 (1992) (“For service and parts to be considered two
distinct products, there must be sufficient consumer demand so that it is efficient for a firm to

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As a preliminary matter, the Court rejects Defendant’s argument that control over delivery of
one’s own product can never violate antitrust tying laws. The cases Defendant cites do not support
that proposition. Rather, they simply hold that a company must have an economic interest in the
alleged tie to violate tying laws. See Crawford Transp. Co. v. Chrysler Corp., 338 F.2d 934, 939
(6th Cir. 1964) (Chrysler did not violate antitrust tying laws by requiring its cars to be shipped
through approved shipping companies because it had no financial interest in and received no profit
from the shipping companies); Venzie Corp. v. U.S. Mineral Prods. Co., 521 F.2d 1309, 1317-18
(3d Cir. 1975) (“The absence of a direct interest in the tied product market leaves open the
possibility of a nonpredatory justification for requiring sales only through Armstrong and
distinguishes this situation from the solely anti-competitive arrangements which have been
branded as per se antitrust violations.”); Carl Sandburg Vill. Condo. Ass'n No. 1 v. First Condo.
Dev. Co., 758 F.2d 203, 207 (7th Cir. 1985) (“[A]n illegal tying arrangement will not be found
where the alleged tying company has absolutely no economic interest in the sales of the tied seller,
whose products are favored by the tie-in.”). Here, by contrast, Defendant has an economic interest.
Defendant allegedly receives substantial remuneration from its policy—either a 10.5% fee for
direct delivery or a 5% fee if a third party is used. Am. Compl. at 2 ¶ 5, 3 ¶ 7. Delivery of one’s
own product is not categorically exempt from antitrust laws.
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provide service separately from parts.”); Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2,
21-22 (1984) (there must be “sufficient demand for the purchase of [the tied product] separate
from [the tying product] to identify a distinct product market in which it is efficient to offer [the
tied product] separately from [the tying product].”). In this case, therefore, Plaintiff must allege
facts sufficient to show that consumer demand for delivery of educational materials makes it
efficient to separate the materials from their delivery.
Plaintiff’s only relevant factual allegation is that at least one school district told Defendant
that Plaintiff would deliver the books. That is not enough. Alone, that does not show consumer
demand, much less sufficient demand to make separation of the materials and their delivery
efficient. Plaintiff also alleges it had agreements with school districts to pick up and drop off
books, Am. Compl. at 6 ¶ 2, but the content and number of these agreements is left to the
imagination, so these allegations do not show sufficient consumer demand for delivery of the
textbooks. Plaintiff has thus not adequately alleged facts demonstrating that K-12 educational
materials and their delivery are separate and distinct products. 3
b. Market Power or Unreasonable Restraint of Competition
Defendant argues that Plaintiff has failed adequately to plead that Defendant has market
power because (1) Defendant’s market share is insufficient, as a matter of law, to show market
power in the national K-12 educational materials market and (2) Plaintiff’s alleged market is
facially implausible.
i.

Market Share

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Any renewed pleading must provide facts which show consumer demand for delivery of
educational materials independent from the materials’ sale, such that it would be efficient for a
firm to separate purchase of educational materials from their delivery.
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Defendant’s first argument, that 38% is not enough market share to create market power,
is unpersuasive. Defendant cites to several cases which indicate that 38% market share is
insufficient to demonstrate a per se antitrust violation. See Times-Picayune Pub. Co. v. U.S., 345
U.S. 594, 612-13 (1953) (newspaper’s 33%-40% share of advertising market insufficient to invoke
per se rule); Greene Cnty. Mem’l Park v. Behm Funeral Homes, Inc., 797 F. Supp. 1276, 1287
(W.D. Pa. 1992) (funeral home with 33%-43% of alleged market insufficient to constitute per se
violation). But these cases were not decided on a motion to dismiss. Because the effect of market
share on market power varies from industry to industry, this Court cannot conclude at this stage
that 38% market share is insufficient to plead market power. See United States v. Columbia Steel
Co., 334 U.S. 495, 528 (1948) (“The relative effect of percentage command of a market varies
with the setting in which that factor is placed.”). Taking all inferences in favor of the Plaintiff, the
Court finds that Plaintiff’s allegation that Defendant has 38% market share is sufficient plausibly
to infer that Defendant has market power here. 4
ii.

Market Definition

Plaintiff’s allegation of 38% market share, however, means nothing if the market is not
plausibly defined. The Amended Complaint does not provide facts sufficient to make a K-12
educational materials market plausible.
When considering the relevant product market, courts examine whether products are
reasonably interchangeable by the consumer for the same purpose. Eastman Kodak Co. v. Image
Technical Servs., Inc., 504 U.S. 451, 482 (1992) (considering “commercial realities” and
reasonable interchangeability to determine the relevant market); United States v. Grinnell Corp.,

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Though Defendant also challenges the accuracy of Plaintiff’s statistics concerning Defendant’s
market share, this is a factual dispute, and so is misplaced at this stage of the case.
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384 U.S. 563, 584 (1966) (using reasonable interchangeability to distinguish central station
monitoring from watchmen services or audible alarms); United States v. E. I. du Pont de Nemours
& Co., 351 U.S. 377, 404 (1956) (stating that “[t]he market is composed of products that have
reasonable interchangeability”).
Plaintiff’s alleged product market of K-12 educational materials is facially implausible
without additional facts. A kindergarten textbook is not interchangeable with a high school
textbook.

The Court does not here conclude that this product market is impossible—it is

conceivable that school districts purchase these materials as a unit and that consistent practice
indicates that demand for these products is not split into discrete units based on educational level.
Plaintiff, however, has failed to allege any facts sufficient to support a finding of a K-12
educational materials market.
Plaintiff’s national geographic market is also unsupported by any alleged facts. When
considering the relevant geographic market, courts identify “the area in which a potential buyer
may rationally look for the goods or services he or she seeks.” Tunis Bros. Co. v. Ford Motor Co.,
952 F.2d 715, 726 (3d Cir. 1991); see also Grinnell, 384 U.S. at 570-71.
Here, there are no alleged facts indicating that school districts look to publishers across the
nation when purchasing educational materials. Again, the Court does not conclude such a market
is impossible, only that Plaintiff has failed to plead any facts providing support for Plaintiff’s
geographic market definition.
Without a plausible relevant market (both geographic and product), the Court cannot
determine that Plaintiff alleges that Defendant has market power.
iii.

Unreasonable Restraint on Competition

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Though Plaintiff has not pled market power, its claim may proceed under rule of reason
analysis if Plaintiff has adequately alleged that Defendant unreasonably restrained competition.
See Brokerage Concepts, Inc., 140 F.3d 494, 511 (3d Cir. 1998). Plaintiff does not so plead.
Indeed, the Amended Complaint contains no facts regarding the reasonableness of Defendant’s
policy change. In the absence of any facts showing an unreasonable restraint on competition,
Plaintiff cannot rely on rule of reason analysis here to survive a motion to dismiss.
c. Substantial Effect on Interstate Commerce
Defendant also argues that Plaintiff has failed sufficiently to allege a substantial effect on
interstate commerce. The Court agrees.
In tying cases, “[P]laintiffs [must] show a substantial and adverse effect on commerce.”
Cardio-Med. Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 72 (3d Cir. 1983).
“[S]ubstantiality of effect . . . is to be viewed on a case-by-case, practical economic basis, from
the perspective of whether the local activity has a significant impact on competition in commerce
and whether the commerce so affected is substantial in volume.” Id. (quoting Harold Friedman,
Inc. v. Thorofare Markets Inc., 587 F.2d 127, 132 (3d Cir. 1978)).
The only relevant allegation in the Amended Complaint is that Defendant is a national
company that ships textbooks throughout the nation. Am. Compl. at 5 ¶ 5. Though this implicates
interstate commerce, it does not show a “substantial and adverse effect” on such commerce. Nor
does Plaintiff’s allegation concerning Defendant’s market share satisfy the substantial-effects
pleading requirement. The pleadings do not aver the size of the textbook delivery service market
or even the market for K-12 educational materials generally. The Court declines to speculate in
the absence of a pleading that provides some basis from which to infer a substantial effect on
interstate commerce. Plaintiff therefore fails adequately to plead that Defendant’s actions have a
substantial effect on interstate commerce.
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For the reasons mentioned above—Plaintiff’s failure to plead facts adequate plausibly to
show (1) distinct products, (2) market power over the relevant market or unreasonable restraint on
competition in violation of the rule of reason, and (3) a substantial effect on interstate commerce—
Plaintiff’s Amended Complaint is dismissed without prejudice as to Count I.
B. Tortious Interference with Contractual Relationships (Counts II and IV) 5
To plead tortious interference with contractual relations, Plaintiff must provide facts
sufficient reasonably to infer: “(1) actual interference with a contract; (2) that the interference was
inflicted intentionally by a defendant who is not a party to the contract; (3) that the interference
was without justification; and (4) that the interference caused damage.” Dello Russo v. Nagel, 358
N.J. Super. 254, 268 (App. Div. 2003). Plaintiff does not do so here.
1. Contractual Relationships
Plaintiff fails to allege valid contracts with sufficient specificity to satisfy its burden to
plead facts showing actual interference with a contract.
This case is similar to Plasticware, LLC v. Flint Hills Res., LP, 852 F. Supp. 2d 398
(S.D.N.Y 2012). In Plasticware, the plaintiff alleged it had “agreements” with its customers,
without providing specifics about any of those agreements. Id. at 404. The court held that
plaintiff’s failure to “allege[] adequate details about a specific contract” justified dismissal of the
claim for tortious interference with contractual relationships. Id. Many other cases agree. See
Only v. Ascent Media Grp., LLC, No. 06-2123, 2006 WL 2865492, at *8 (D.N.J. Oct. 5, 2006)

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Count II, “intentional interference with contract,” and Count IV, “tortious interference with
contract,” are pled almost identically and, insofar as is relevant to this opinion, appear to apply the
same law. See Norwood-Jeb, L.L.C. v. N. River Mews Assocs., L.L.C., No. 1259-07T3, 2009 WL
1010963, at *9 (N.J. Super. App. Div. Apr. 15, 2009) (analyzing an “intentional interference with
contract” claim under “tortious interference with contractual rights”). Plaintiff does not contest
Defendant’s characterization that these counts are identical, in law and in fact, so the Court analysis
applies to both.
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(general allegations that plaintiff had valid contractual relationships were insufficient to identify
existing contracts with required specificity to state a claim for tortious interference under New
Jersey law); Commerce Ins. Servs. v. Szczurek, No. 05-3565, 2006 U.S. Dist. LEXIS 515, at *2627 (D.N.J. Jan. 6, 2006) (dismissing a claim for tortious interference when complaint failed to
identify existing contracts).
Here too, Plaintiff has alleged only that it had “contractual agreements” or “agreements”
with various entities. Plaintiff provides a list of twenty-three school districts with which it had
“agreements,” but does not provide adequate specifics concerning these agreements. As an
example of this deficiency, it is not clear whether any of these agreements were actual paying
contracts. Plaintiff also fails to identify the date any of these agreements became effective, so it is
unclear whether any of these agreements predate the policy change. Given the ambiguity of
Plaintiff’s Amended Complaint, the Court finds that Plaintiff has failed to identify valid relevant
contracts with reasonable specificity.
2. Intentionality
Plaintiff also fails to provide any facts plausibly indicating that Defendant changed its
policy to harm Plaintiff intentionally.
Interference is intentional when “the actor desires to bring it about or if he knows that the
interference is certain or substantially certain to occur as a result of his action.” Dello Russo, 358
N.J. Super. at 268; Cargill Global Trading v. Applied Dev. Co., 706 F. Supp. 2d 563, 575 (D.N.J.
2010). Plaintiff’s only relevant allegation is that Defendant’s intent to harm Plaintiff is “evidenced
by the fact” that the change in policy “was enacted at the commencement of plaintiff’s busiest
shipping season of the year.” Am. Compl. at 8 ¶ 4. It is not plausible to infer that Defendant

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intended to hurt Plaintiff based solely on the fact that the timing of the disputed policy change hurt
Plaintiff. This element is not sufficiently pled.
3. Lack of Justification or Excuse
In the context of intentional interference with contractual relationships, Plaintiff must
allege malice—i.e. intentionally inflicting harm without justification or excuse. See Lamorte
Burns & Co. v. Walters, 167 N.J. 285, 306 (2001). A “bare recital that Defendants’ alleged
interference was carried out with ‘malice’ falls short” of the required allegations to sustain a claim
under this count. Mu Sigma, Inc. v. Affine, Inc., No. 12-1323, 2013 WL 3772724, at *5 (D.N.J.
July 17, 2013) (citation omitted). Thus, irrespective of other deficiencies, Plaintiff’s allegations
here fail unless Plaintiff alleges that Defendant had no justification or excuse for its policy change.
Plaintiff makes no such allegation. Defendant, for its part, identifies several justifications
for its policy change—including unrecovered costs due to inept external shipping companies.
Because Plaintiff does not plead that Defendant changed its policy without any justification, this
claim must be dismissed.
The Court dismisses Counts II and IV without prejudice.
C. Unjust Enrichment (Count III)
To plead unjust enrichment, Plaintiff “must show both that defendant received a benefit
and that retention of that benefit without payment would be unjust.” VRG Corp. v. GKN Realty
Corp., 135 N.J. 539, 554 (1994). Plaintiff must also show that Plaintiff “expected remuneration
from the defendant at the time it performed or conferred a benefit on defendant and that the failure
of remuneration enriched defendant beyond its contractual rights.” Id. Plaintiff’s Amended
Complaint fails to plead these requirements.

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Under New Jersey law, unjust enrichment cannot provide an independent tort claim. Castro
v. NYT Television, 370 N.J. Super. 282, 299 (App. Div. 2004) (“[T]he role of unjust enrichment
in the law of torts is limited for the most part to its use as a justification for other torts such as
fraud or conversion.”); Nelson v. Xacta 3000 Inc., No. 08-5426, 2009 WL 4119176, at *7 (D.N.J.
Nov. 24, 2009) (“New Jersey law does not recognize unjust enrichment as an independent tort
cause of action”).

Thus, the only basis on which Plaintiff could theoretically rely for an

independent cause of action for unjust enrichment is a contractual relationship between the
Plaintiff and Defendant. Plaintiff does not allege any such relationship here. Facially, then, the
unjust enrichment claim in this case has no basis under New Jersey law and must be dismissed.
The unjust enrichment claim must be dismissed on yet another basis. In an unjust
enrichment claim, the plaintiff must be the party who provides the benefit to the defendant. See
Eli Lilly & Co. v. Roussel Corp., 23 F. Supp. 2d 460, 496 (D.N.J. 1998) (unjust enrichment claim
failed to state a claim “because [plaintiff] had not alleged (nor could it prove) that it conferred a
benefit on defendants”). The benefit that Defendant allegedly received from its change of policy
was approximately 10% in delivery fees. Plaintiff did not pay that money to Defendant, nor does
it confer any benefit upon Defendant in any meaningful way. Plaintiff may be injured here, but
there is no doubt that, as pled, Plaintiff does not confer any benefit on Defendant. Because of these
deficiencies, the Court dismisses Plaintiff’s unjust enrichment claim without prejudice to
Plaintiff’s right to refile.
IV.

CONCLUSION
For the foregoing reasons, this Court dismisses Plaintiff’s Amended Complaint in its

entirety without prejudice to Plaintiff’s right to refile within twenty-one days. Plaintiff is on notice
of the defects with its current complaint. If these defects are not remedied in any subsequent

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pleading, the Court will deny further amendment as futile. An appropriate Order accompanies this
Opinion.
Date: April 29, 2015

/s/ Madeline Cox Arleo
Hon. Madeline Cox Arleo
UNITED STATES DISTRICT JUDGE

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