SEMERAN v. BLACKBERRY CORPORATION et al

Filing 43

LETTER OPINION AND ORDER granting 36 Motion to Dismiss ***CIVIL CASE TERMINATED. Signed by Judge John Michael Vazquez on 7/6/16. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHAMBERS OF
JOHN MICHAEL VAZQUEZ
UNITED STATES DISTRICT
JUDGE

FRANK R. LAUTENBERG
POST OFFICE AND
COURTHOUSE
2 FEDERAL SQUARE, ROOM

417
NEWARK, NJ 07102
973-297-4851
July 6, 2016
VIA ECF
LETTER OPINION AND ORDER
Re:

SEMERAN v. BLACKBERRY CORP.
Civil Action No. 15-750

Dear Litigants:
The Court has reviewed Defendant BlackBerry Corporation’s (“BlackBerry” or
“Defendant”) motion to dismiss the Second Amended Complaint for failure to state a claim and to
strike the class allegations. For the reasons stated below, the Court grants Defendant’s motion
with prejudice.
This case concerns the alleged defects of Plaintiff Russ Semeran’s (“Plaintiff’) BlackBerry
telephone.’ Plaintiff filed his original complaint on February 2,2015. D.E. 1. On April 20, 2015
Plaintiff filed a First Amended Complaint (“FAC”), which contained six counts against
Defendant.2 D.E. 22. On June 6, Defendant moved to dismiss Plaintiffs FAC, which Plaintiff
opposed. D.E. 24, D.E. 26. On February 2,2016, Judge Wigenton granted Defendant’s motion to
dismiss without prejudice. D.E. 31, 32. In her opinion, Judge Wigenton found that Plaintiffs
implied warranty claim failed to “plead sufficient facts showing that he was unable to use his
smartphone for the general purpose for which the smartphone should have been sold” and “fail[ed]
to sufficiently allege that his smartphone fell below a minimum level of quality.” D.E. 31, at 12.
Judge Wigenton permitted Plaintiff to file a second amended complaint to address the pleading
deficiencies.

The Court will use “BlackBerry” and “smartphone” interchangeably.
2

The counts in Plaintiffs FAC were: Count I Violations of New Jersey’s Consumer Fraud Act,
N.J.S.A. § 56:8-2, et seq., and Substantially Similar Law of Certain Other States, Count II
Fraudulent Concealment/Nondisclosure, Count Ill Breach of Implied Warranty, Count IV
Breach of Express Warranties, Count V Negligent Misrepresentation, and Count VI Unjust
Enrichment.
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On March 2, 2016, Plaintiff filed the Second Amended Complaint (“SAC”) against
Defendant. D.E. 33. In the SAC, Plaintiff asserted a single cause of action: breach of implied
warranty. SAC ¶flJ 95-102. Defendant now moves to dismiss the SAC.3 Defendant alleges that
Plaintiff has failed to correct the pleading deficiencies noted by Judge Wigenton and that Plaintiffs
allegations remain inadequate to support a claim that his smartphone is not fit for its ordinary
purpose. Def. Br. at $ Additionally, Defendant argues that the Court should strike Plaintiffs
class action allegations because, among other reasons, Plaintiff does not have standing since he is
not a member of a class he wishes to represent.1
.

Plaintiff argues that BlackBerry has waived many of its arguments by failing to raise them
in its prior motion to dismiss. P1. Opp. at 7-ll. Plaintiff also contends that the SAC properly
states a claim for breach of implied warranty of merchantability. Id. at 11. Lastly, Plaintiff argues
that BlackBerry’s motion to strike the class action allegations should be denied because “the
propriety of class certification is not ripe for determination at the pleadings stage.” Id. at 27.
The facts of this matter derive from Plaintiffs SAC. In June 2013, Plaintiff purchased a
new BlackBerry 10 Series Cellular Telephone from T-Mobile in Paramus, New Jersey for

Defendant’s Brief in support of its Motion to Dismiss will be referred to hereinafter as “DeE Br.”
(RE. 36), Plaintiffs Opposition to Defendant’s brief will be referred to hereinafter as “P1. Opp.”
(D.E. 41), and Defendant’s Reply Brief in support of its Motion to Dismiss will be referred to
hereinafter as “DeE Reply” (D.E. 42).
Defendant raises three additional arguments that are no longer at issue. First, Defendant states
that Plaintiff fails to state a claim for violation of the implied warranty of fitness for a particular
purpose. Id. at 13-14. Plaintiff does not dispute this contention. See P1. Opp. at II (“Plaintiffs
true implied warranty claim centers upon the warranty of merchantability.”). Second, Defendant
argues that BlackBerry’s license agreement expressly disclaimed the application of any and all
implied warranties. DeE Br. at 14-17. This argument was rethted by Plaintiff, who claims that
the license is unenforceable because I) Plaintiff never received or was aware of the license; and 2)
the disclaimer in the license is not conspicuous as required by New Jersey Law. P1. Opp. at 2021. Defendant concedes that Plaintiff’s first argument, whether he received the license, is one of
disputed fact, and therefore not properly decided in a motion to dismiss. Def. Reply at 6-7. Third,
Defendant argues that Plaintiff lacks standing to assert claims based on any BlackBerry Model
other than the Q10 model which he purchased. DeE Br. at 2. Judge Wigenton already made this
determination on February 2, 2016. D.E. 31. This argument is also conceded by Plaintiff and is
no longer at issue. See P1. Opp. at 1 n. 1.
The Court does not find Plaintiffs waiver argument availing. As Defendant points out, in
Plaintiffs Opposition to BlackBerry’s first motion to dismiss, he argued that “the proper
procedural mechanism for making [class action] argument[s] is a motion to strike under Federal
Rule of Civil Procedure 12(0.” D,E. 26 at 27. As a result, in Defendant’s current motion to
dismiss, it relied upon a motion to strike the class action allegations. Plaintiff cannot first argue
that Defendant must raise its opposition to the class action allegations in a motion to strike (as
opposed to a motion to dismiss), and then fault the Defendant for doing just that.
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approximately $620.59. SAC ¶ 10. BlackBerry 10 telephones include a feature called
BlackBerry® Link (“BR Link”). Id. ¶ 24. Plaintiff describes RB Link as follows:
This feature allows users to sync and organize music, documents,
photos and videos between a Black[B]errylo[6] device and a
computer. It is compatible with Mac and PC, and supports iTunes
and Windows Media Player. Syncs are done over Wi-Fi or USB.
BlackBerry Link also facilitates device switches from Android and
iOS as well as RB 10 software updates. Link transfers contacts, files,
calendars, tasks, bookmarks. alarm clocks. SMS. phone logs,
WLAN profiles and other information between devices.
Id. One way this feature is used is through a contacts application offered with the smartphone,
which BlackBerry describes as follows:
When you add contacts to your BlackBerry device, connecting with
them is easy. The Contacts app is integrated with the BlackBerry
Hub, your Calendar app, and other apps, so you can quickly add
contacts to relevant messages and events or share your pictures and
videos. If you added an email account or social networking account
to your device, contacts from those accounts can appear in your
contact list. It’s simple to find the people that you want to connect
with because your device automatically merges contacts who share
first and last name, email addresses, or mobile phone numbers...
BlackBerry device automatically merges contacts when it’s clear
that those contacts are the same person (for example, they share the
same first and last name, mobile phone number, BlackBerry ID, and
soon)[.]
Id. jJ 29 (internal footnotes omitted) (the contacts “app” is hereinafter “Contacts Application” or
the “Application”). After purchasing his smartphone. Plaintiff discovered a defect in the Contacts
Application. Id. Instead of merging contacts “when it’s clear those contacts are the same person,”
Plaintiff alleges that the Application was defective and “randomly merge[dj unrelated contacts
stored in the phone.” Id. 9 30.
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The SAC vacillates between different spellings of “BlackBerry” (“BlackBerry” and
“Blackberry”). The Court will use the same spelling that Defendant uses.
Plaintiff alleges two additional defects in the SAC: 1) the photo application “fails to permit the
user to manage the size and resolution of photographs for the purpose of emailing”; and 2) the
smartphone “fails to support widely utilized applications such as Yahoo Calendar.” Id. ¶ 32, 33.
Defendant accurately points out that Plaintiff, other than in a footnote referencing resizing photos,
does not mention these alleged defects in his motion papers. DeE Reply at 2. As a result, the
Court considers Defendant’s arguments concerning the two additional defects as unopposed. The
Court also finds Defendant’s arguments persuasive and the two additional defects do not properly
allege a claim for breach of implied warranty.
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Plaintiff contends that this defect goes to “the most basic and fundamental characteristics
of ‘smart’ cellular telephones,” which are: “(a) the ability to send and receive text messages,
emails, voice calls and data such as photos; and (b) the ability to retrieve inforniation and place
calls through use of a pre-installed contact data base or address book.” Id. ¶ 20. By “affect[ing]
the ability of Plaintiff and Class Members to place telephone calls to intended recipients,” the
defect “render[s) Blackberry 10 Series Cellular Telephones unfit for the ordinary purpose for
which Blackberry 10 Series Cellular Telephones are sold.” Id. ¶ 36, 39. Plaintiff therefore brings
the present action to remedy the harm suffered by himself and members of the putative classes.
Id. The classes Plaintiff purports to bring claims on behalf of are: 1) a “Multi-State Class”; and 2)
a “New Jersey Sub-Class.” Id. ¶ 82.
To withstand a motion to dismiss under Rule 12(b)(6), a plaintiff must allege “enough facts
to state a claim to relief that is plausible on its face.” Bell All. Corp. i’. Thvmblv, 550 U.S. 544,
570 (2007). A complaint is plausible on its face when there is enough factual content “that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft i’. Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does not impose
a probability requirement, it does require a pleading to show more than a sheer possibility that a
defendant has acted unlawfully.” c’onnellv v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016)
(internal quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient
facts to raise a reasonable expectation that discovery will uncover proof of [his] claims.” Id. at
789.
In evaluating the sufficiency of a complaint, district courts must accept all factual
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
Phillips i’. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is “not
compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
disguised as factual allegations.” Baraka v McGreevev, 481 F.3d 187, 211 (3d Cir. 2007). If,
after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no
relief could be granted under any set of facts consistent with the allegations, a court may dismiss
the complaint for failure to state a claim. DeFazio i’. Leading Edge Recovety Sols., No. 10-2945,
2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).
“A warranty of merchantability is implied by law in every contract for the sale of goods.”
In re Toshiba Am. HD DVD Mktg. & Sales Practices Litig., No. 08-939, 2009 WL 2940081, at
* 16 (D.N.J. Sept. 11, 2009). Merchantability “requires that a product conform to its ordinary and
intended use.” Hughes v. Panasonic, No. 10-846, 2011 WL 2976839, at *21 (D.N.J. July 21,
2011). The warranty does not “impose a general requirement that goods precisely fulfill the
expectation of the buyer,” but instead “it provides for a minimum level of quality.” Id. at *22
(internal quotation marks omitted). Thus, the warranty imposes a requirement that “the thing sold
is reasonably fit for the general purpose for which it is manufactured and sold.” Ferrari i’. Am.
Honda Motor Co., Inc., No. 4296-06, 2009 WL 211702, at *3 (N.J. Super Ct. App. Div. Jan. 30,
2009) (internal quotation marks omitted); see also Berenblat v. Apple, hue., Nos. 08-4969, 09-

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1649,2009 WL 2591366, at *3 (N.D. Cal. Jan. 6,2012) (“[A] defect must render the product unfit
for its ordinary purpose.”).
Once a plaintiff alleges a defect that touches on the core functionality of a product, he must
“demonstrate that this alleged defect is more than [an] inconvenience.” In re Carrier IQ, Inc., 78
F. Supp. 3d at 1108-09; see also hire Google Phone Litig., No. 10-01177,2012 WL 3155571, at
*5 (N.D. Cal. Aug. 2, 2010) (finding that “[p]laintiffs’ allegations that the phone drops calls or
misses calls are insufficient to demonstrate that the alleged defect is more than inconvenience”).
Rather, a plaintiff must allege that the defect deprived him of the object’s “operative essentials.”
Rothbaum i’. Samsung Telecomms. Ani., LLC, 52 F. Supp. 3d 185, 202 (D. Mass. 2014). Thus,
once a defect is determined to go to the object’s “core functionality,” “the impairment of the core
functionality must be significant enough to prevent the product from reaching a reasonably
expected minimum level of quality.” In re ‘arrierIQ, hic., 78 F. Supp. 3d at 1110.
Two cases, Hon’ath v. LG Electronics Mobilcomm US.A., Incorporated, No. 11-1567,
2012 WL 2861160, at *7 (S.D. Cal. Feb. 13, 2012), and Taliafèno “. Samsung Telecomms.
America, LLC, 2012 WL 169704, at *1 (N.D. Tex. Jan. 19, 2012), are instructive. In Hon’ath,
plaintiffs alleged that their smartphone repeatedly shut down, froze, and did not work unless the
battery was repeatedly removed and reinserted in the phone. 2012 WL 2861160, at *7 The entire
phone failed repeatedly, to the point that it could not be used without shutting down the phone
entirely. Id. The court denied defendant’s motion to dismiss, finding that the “[p]laintiffs allege
facts to make [out] their claim for breach of the implied warranty of merchantability.” Id.
Similarly, in TaliaJ&ro, plaintiffs alleged that “their Galaxy S phones frequently shut down when
they entered standby mode, and the phones would not power back on unless the user removed and
reinserted the battery.” 2012 WL 169704, at *1. Plaintiffs explained that this defect manifested
“as many as ten times each day” and “caused users to lose data.” Id. The Taliaferro court ruled
that “the factual basis for the claim [of breach of implied warranty] is established by the
pleadings,” and denied defendant’s motion to dismiss. Id. at 5.
Minkerv. Apple, Incorporated, is also relevant. 65 F. Supp. 3d 810, 819 (N.D. Cal. Aug.
20, 2014). In Minker, the court looked at a defect to an iPhone’s navigation system, Apple maps.
The Court held that the plaintiff “fail[ed] to allege that the ordinary purpose of the iPhone 5 was
navigational capability.” Id. Additionally, the court noted that plaintiff “failed to allege a
Jhndamental defect in the software.” Id. (emphasis added). Specifically, the plaintiff did not allege
that “Apple Maps failed to work at all or even that it failed to work a majority of the time.” Id.
Thus, the Minker court dismissed Plaintiffs cause of action, finding that the “[p]laintiff has not
alleged a plausible claim for relief under breach of implied warranty.” Id.

Since merchantability requires deciphering the “general purpose for which [an object] is
manufactured and sold,” the Court will first consider the “general purpose” of smartphones.
Ferrari, 2009 WL 211702, at *3 Defendant alleges that “plac[ing] telephone calls” is the “general
purpose for a smartphone.” Def. Br. at II. Plaintiff provides varying allegations as to the general
purpose of his BlackBerry. First, he claims that “amongst the most basic and fundamental
characteristics of ‘smart’ cellular telephones” is the “ability to retrieve information and place calls
through the use of a pre-installed contacts data base or address book.” SAC ¶ 20. Plaintiff later
alters his initial definition of the ordinary purpose of a smartphone. See id. ¶ 30 (“the most basic

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and critical function of the device” is “placing telephone calls”); id. ¶ 96 (alleging that “[t]he
primary functions of ‘smart’ phones” are to “allow you to send and receive email and text messages
as well as take photos, listen to music, watch movies, and read books and those arejust the basics.”)
(internal quotation marks omitted).
The Court finds both parties’ definitions insufficient to accurately convey the core function
of a smartphone. The essential question is what makes a smartphone smart? Such devices have
certainly evolved from their ancestor, the basic cell phone. Now, smartphones are more akin to a
hand-held computer. The Oxford English Dictionary defines a smartphone as “a mobile phone
capable of running general-purpose computer applications, now typically with a touch-screen
interface, camera, and Internet access.”
Oxford English Online Dictionary, 2016,
http://www.ocd.com/ (last visited June 16, 2016). The Court finds this definition accurate and will
thereby adopt it.
The question then becomes whether merging contacts is part of the core function of a
smartphone as defined above? Defendant alleges that in order to implicate a breach of warranty,
Plaintiff must allege that he “could not place telephone calls manually, re-dialing or clicking on a
phone number in an email.” DeE Br. at 11. Plaintiff argues that this standard equates a smartphone
with a payphone or landline. P1. Opp. at 15. The Court agrees that such a limited view is not
persuasive. If this matter concerned land lines and basic cell phones, the warranty would require
pleading that a consumer could not manually dial and place calls. However, because smartphones
are much more than mere cell phones, this Court does not believe that Plaintiff must plead an
inability to dial manually in order to sufficiently allege a breach of warranty.
Here, Plaintiffs allegations concern the Contacts Application and its ability to effectively
sync with other devices. If the SAC alleged that the contacts function itself was defective, the
Court may be more sympathetic to Plaintiffs position.8 But Plaintiff does not allege that his
contacts function was unusable. Instead, he claims that his ability to sync his BlackBerry contacts
with other electronic devices was defective. SAC ¶ 30. Plaintiff alleges that rather than merging
related contacts, the Application “randomly merges unrelated contacts stored in the phone.” Id.
As a matter of law, the ability to merge or sync contacts does not go to the core function of
a smartphone. Plaintiff has cited no law, nor could the Court find any, leading to a contrary result.
As noted, in both Hon’ath and Thliafenv, the entire smartphone became unusable several times a
day and the owner was forced to remove and reinsert the battery to restart it. Inability to merge
contacts is not in the same sphere of malfunctioning. Even Minker, which concerned the
navigational function of a smartphone, alleges a problem arguably more severe (at least depending

The Court is not ruling that an unusable contacts function would necessarily be a basis for breach
of implied warranty vis-à-vis a smartphone. Instead, the Court is merely acknowledging that if
that was the defect alleged, it would be a closer call than the current matter. The issue, however,
does not appear to have been addressed by another court and it would be more appropriate to
reserve such a decision to an actual case or controversy.
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upon the particular user) than the ability to merge contacts. Yet, in Minker, the navigational
capability was not found to be part and parcel of the ordinary purpose of a smartphone.
Even if the ability to merge contacts was a core function, the SAC inadequately pleads
facts to support a cause of action. The SAC is sparse regarding how often the merging error occurs
and the effects of such defect. Thus the SAC leaves many unanswered questions regarding this
defect: Does a defective merger result in one contact having an incorrect phone number? Are all
of a user’s contacts affected by inaccurate mergers? Could the user still access the correct phone
number for a contact that has been incorrectly merged? Is there a way to turn off the Contacts
Application and still use the smartphone? In the present case, Plaintiff merely alleges that his
contacts “frequently” merged, “completely frustrating” the use of his phone. SAC ¶ 67. These
allegations show that one component of Plaintiffs phone (contacts) suffered an ambiguously
described defect (merging inaccurately), with an unknown occurrence rate (“frequently”). There
is no evidence that all of Plaintiffs contacts were affected or of how often the defect occurred.
Merely stating that the defect occurred with “frequency,” without more, is insufficient to meet the
pleading standard. Similar factual pleading deficiencies were noted in Minker. By comparison,
in Hon’ath and Taliafenv, the plaintiffs explicitly alleged that the failures occurred numerous
times each day.9
As noted, Plaintiff also brings class allegations. Plaintiff sets forth two proposed classes:
I) the “Multi-State Class”; and 2) the “New Jersey Sub-Class.” SAC ¶ 82. The Multi-State Class
consists of residents of thirty-one states, not including New Jersey, who had purchased
Defendant’s BlackBerry 10 Series Cellular Telephone. Id. The New Jersey Sub-Class is
comprised of all residents of the State of New Jersey who had purchased Defendant’s BlackBerry
10 Series Cellular Telephone. Id. Defendant argues that the Multi-State Class allegations should
be dismissed because Plaintiff is not a member of the class he seeks to represent. Def. Br. at 2425. Additionally, Defendant argues that the New Jersey Sub-Class should be dismissed because
individual issues predominate over issues common to the class. Id. at 22-24. In response, Plaintiff

Plaintiff also asserts that his warranty claim does not require the defect to preclude use of the
object all of the time. Plaintiff nonetheless cites to cases in which the defects were, in fact,
constantly present. See, e.g., Long, 2013 WL 4655763, at * I (finding a breach of warranty when
defective seat buckles were “unreasonably difficult or impossible to unlatch”); Fleisher i’. Fiber
Composites, LLC., No. 12-1326,2012 WL 5381381 at *7 (E.D. Pa. Nov. 2,2012) (mold on outdoor
decks was always present and made deck unfit for its intended purpose); isip v. Mercedes-Benz
USA, 155 Cal. App. 4th 19, 27 (Cal. Ct. App. 2007) (leaking transmission, faulty brakes, and
“transmission hesitation” were always present and rendered car unfit for its ordinary purpose). On
the other hand, Defendant argues that the standard is complete inoperability. However, an object
need not be “inoperable” to implicate a warranty claim. See Stearns, 2009 WL 1635931, at *8
(finding that an alleged defect does not need to preclude use of the object entirely) (emphasis
added). In fact, the devices at issue in Hon’ath and Taliaferro were usable some of the time during
each day but the plaintiffs set forth sufficient facts to proceed with their cases.
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asserts that it is premature to bring up the issue of class action allegations in a motion to dismiss
without providing much by way of discussion or reasoning. P1. Opp. at 27.
Defendant’s first argument is that a plaintiff must be a member of the class to have
standing. Def. Br. at 24-25. The Court agrees. A named plaintiff must be a part of the class which
he seeks to represent.’° See e.g., Gen. Tel. Co. 1’. Falcon, 457 U.S. 147, 156 (1982) (“We have
repeatedly held that a class representative must be part of the class”); Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 216 (1974) (“To have standing to sue as a class
representative it is essential that a plaintiff must be a part of that class”); Betts v. Reliable
Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981) (holding that subclasses must be
dismissed because “the fundamental requirement that the representative plaintiff must be a
member of the class he represents” was not met). Even when a plaintiff is a part qf a multi-state
class, courts in this Circuit have held that the plaintiff does not have standing to assert claims under
the laws of states in which he does not reside. See e.g., McGuire 1’. BMWoJN. Ani., LLC, No. 137356, 2014 WL 2566132, at *6 (D.N.J. June 6, 2014); In re Wellbutrin XL Antitrust Litig., 260
F.R.D. 143, 155 (E.D. Pa. 2009). Thus, because Plaintiff is not a member of the class of thirtyone states, he cannot prosecute claims on behalf of those in that class. See Berger i’. Home Depot
USA, Itic., 741 F.3d 1061, 1067 (9th Cir. 2014) (“Because he is not a member of those subclasses,
Berger cannot prosecute claims on their behalf.”).’ Accordingly, even if Plaintiff had asserted a
valid claim for breach of implied warranty, the Court would still dismiss the Multi-State Class at
this stage.
Defendant further argues that the New Jersey Sub-Class should be dismissed because
individual issues predominate over those issues common to the class as a whole. Def. Br. at 2224. Although the Court possesses the discretion to strike class allegations at the pleading stage, it
is uncommon except for limited situations (such as the clear lack of standing concerning the Multi
State Class in this case). See, e.g., Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72,
93 (3d Cir. 2011) (finding a District Court’s determination of class certification issues premature
and noting that “[i]n most cases, some level of discovery is essential” to an evaluation of class
allegations) (emphasis added); Ehrhart v. Synthes (USA), No. 07-01237, 2007 WL 4591276, at *5
(D.N.J. Dec. 28, 2007) (“[Djismissal of class allegations at [the motion to dismiss] stage should
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The Court is aware that courts in this District, in certain circumstances, will permit a putative
class action plaintiff to go forward even if he did not purchase the specific product at issue. See
e.g., Burke v. Weight Watchers Intern., Inc., 983 F. Supp. 2d 478, 482 (D.N.J. 2013); Stewart i’.
Smart Balance Inc., No. 11-6174,2012 WL 4168584, at *16 (D.N.J. June 26, 2012). In these
cases, once certain elements are met, the courts will delay the inquiry of the appropriate class
until later in the proceedings. In re L’Oreal Wrinkle Cream Mktg. & Sales Practices Litig., No.
12-03571, 2013 WL 6450701, at *4 (D.N.J. Dec. 9,2013); Stewart, 2012 WL 4168584, at *16.
However, in light of the fact that Plaintiff is not a member of the Multi-State Class, and because
such a class would require the court to apply the substantive law from numerous other states, the
Court is deciding the issue at the pleadings stage.
Defendant cites numerous additional arguments in its motion to strike or dismiss the Multi-State
Class. See Def. Br. at 25-38. Since the Court is dismissing the Multi-State Class allegations on
standing grounds, it will not address these additional arguments.
8

be done rarely and that the better course is to deny such a motion because the shape and form of a
class action evolves only through the process of discovery.”) (internal quotation marks omitted).
The Third Circuit has further noted the depth of a predominance inquiry and held that
“[pjarticularly when a court considers predominance, it may have to venture into the territory of a
claim’s merits and evaluate the nature of the evidence.” Landanian & Funk Pc, 640 F.3d at 93.
The Court is therefore not inclined to address the predominance challenge to the New Jersey Sub
Class at the motion to dismiss stage.
Ordinarily the Court would allow the New Jersey Sub-Class allegations to proceed through
to the discovery process. In addition, in the usual course, if the pleading was merely factually
deficient, the Court would permit Plaintiff the opportunity to file an amended complaint. However,
since the Court finds Plaintiffs claim of impLied warranty inadequate as a matter of law, the Court
will not urant Plaintiffs request to file another amended complaint and the Court will dismiss the
class action requests as well.
The Court GRANTS VITH PREJUDICE Defendant’s motion to dismiss.
SO ORDERED.

JOHN MICHAEL AqEZ
UNITED STATES DIS&WCTUJJDGE

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