HAMPDEN ENGINEERING CORPORATION v. SHEAR TECHNOLOGY, LLC

Filing 18

OPINION. Signed by Judge Claire C. Cecchi on 8/24/16. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HAMPDEN ENG1NEERING
CORPORATION

Civil Action No.: 15-7424

Plaintiff,

OPINION

V.

SHEAR TECHNOLOGY, LLC,
Defendants.
CECCHI, District Judge.
I. INTRODUCTION

This matter comes before the Court on a Motion to Dismiss brought by Defendant Shear
Technology, LLC (“Defendant”). [ECF No. 12.] Plaintiff Hampden Engineering Corporation
(“Plaintiff’) opposes the motion. [ECF No. 13.] The Court decides the motion without oral
argument pursuant to Federal Rule of Civil Procedure 78.

Having considered the parties’

submissions, Defendant’s motion is granted in part and denied in part.
II. BACKGROUND

Plaintiff is in the business of designing and manufacturing engineering and technology
training equipment. [See Amended Complaint (“Am. Compl.”), ECF No. 11,

¶ 7.]

Plaintiffs

equipment is used by universities and technical and vocational schools, and in industry workforce
development programs. [See id.

¶ 8.]

1

On or about April 29, 2013, Plaintiff applied to the United States Copyright Office for
registration of four of its technical drawings (collectively, the “Hampden Drawings”).’ [See j

¶ 10.]

Plaintiff manufactured, advertised, and sold certain products (collectively, the “Hampden

Products”) based upon the Hampden Drawings.2 [Sçç j4 ¶ 17.]
In or about 2013, Plaintiff discovered a letter (“Iskander Letter”), dated May 3, 2012, from
Alex Iskander, the Engineering Manager of the New York City School Construction Authority
(“NYCSCA”), to Edan Peleg, a Managing Member of Defendant. [See id.

¶ 2$.]

The Iskander

Letter approved Defendant’s request for the inclusion of its “Science Lab Power Units” in the next
revision of the NYCSCA Standard Specifications. [See id.

¶ 29,

Exhibit D.] The “Science Lab

Power Units” referenced in the Iskander Letter are based on a set of drawings provided by
Defendant to NYCSCA (collectively, the “Shear Drawings”).3

[Sc id. ¶ 31.]

the Shear Drawings are substantially similar to the Hampden Drawings.

Plaintiff alleges that
[See id.

¶J

Further, Plaintiff alleges that Defendant had access to the Hampden Drawings. [See id.

33-36.]

¶ 32.]

The Hampden Drawings are: (1) the “Teacher Unit X-1SR Drawing,” which was created and
published in 1997 and is registered under U.S. Copyright Reg. No. VA 1-857-282; (2) the “Student
Unit X-2$R Drawing,” which was created and published in 1997 and is registered under U.S.
Copyright Reg. No. VA 1-857-282; (3) the “Hampden Engineering X-3 Meter Demonstration
Drawing,” which was created and published in 2006 and is registered under U.S. Copyright Reg.
No. VA 1-857-284; (4) and the “Hampden Engineering X-4 Meter Connection Panel Drawing,”
which was created and published in 1994 and is registered under U.S. Copyright Reg. No. VA 1857-285. [See Am. Compi. ¶J 10-16, Ex. B.]
2

Plaintiff manufactured, advertised, and sold the Hampden Products under the following names:
(1) “Model X-1SR,” which was manufactured and sold by Plaintiff at least as early as 1997; (2)
“Model X-2SR,” which was manufactured and sold by Plaintiff at least as early as 1997; (3)
“Model X-3,” which was manufactured and sold by Plaintiff at least as early as 2006; and (4)
“Model X-4,” which was manufactured and sold by Plaintiff at least as early as 1994. [See Am.
Compi. ¶J 18-23, Ex. C.]
Plaintiff identified the Shear Drawings as: (1) the “Shear Technology Instructors Power Supply
Drawing;” (2) the “Shear Technology Student Power Supply Drawing;” (3) the “Shear Technology
Meter Demonstration Unit Drawing;” and (4) the “Shear Technology Meter Connection Panel
Drawing.” [See Am. Compl., Ex. E.]

2

Defendant sells products (the “Shear Products”)4 that were allegedly built based upon the
Shear Drawings.

[$ j ¶ 37,

Ex. F.] Plaintiff alleges that the Shear Products are substantially

similar to the Hampden Products. [See id.

¶J 39, 41, 43, 45.]

As early as February 19, 2013, Defendant offered Shear Products for sale on a website (the
“Shear Website”).5 [See id.

¶ 37,

Ex. F.] On February 22, 2013 and March 1, 2013, Defendant

attempted to sell and/or sold the Shear Products to third party Midland Electrical Contracting
(“MEC”), to whom Plaintiff has sold equipment for use on NYCSCA projects at schools
throughout New York City. [See

¶ 47-49, Exs. G-H.]

In February 2013, during a meeting with

potential third party buyer Solar Electric Corporation (“Solar Electric”), a Solar Electric engineer
showed Plaintiffs representative(s) copies of one or more of the Shear Drawings. [See id.
52.] Shortly thereafter, Plaintiff discovered the Shear Website. [See id.

¶J 51-

¶ 54.]

On or about March 20, 2013, Plaintiff sent an overnight letter to Defendant and Mr. Peleg
informing Defendant that it was in violation of the United States Copyright Act. [See id.

¶ 26,

Ex. I.] On or about April 5, 2013, Defendant responded by letter denying Plaintiffs allegations.
[See id.

¶ 27, Ex. K.]
Two years later, in or about January 2015, Plaintiff discovered that Bread and Roses High

School, located in New York, New York, was displaying and using at least two units that
Defendant manufactured and sold. [See id.
similar the Hampden Products. [See id.

¶ 57, Ex.

I.] Those units were allegedly substantially

¶J 59, 64.]

Defendant marketed the Shear Products under the following names: (1) “Instructors Power
Supply IPS (X-1);” (2) “Students Power Supply SPS (X-2);” (3) “Meter Demonstration Unit
MDU (X-3);” and (4) “Meter Connection Panel MCP (X-4).” [See Am. Compi. ¶ 38.]
-

-

-

The Shear Website is available at ww.shearteclmo1oy.netJProducts.php.

3

-

On October 13, 2015, Plaintiff flied its original Complaint against Defendant. [ECF No. 1.]
After Defendant moved to dismiss, Plaintiff filed its Amended Complaint on December 10, 2015.
{ECF No. 11.] The Amended Complaint asserts a claim of copyright infringement under the
Copyright Act (Count I) and trade dress infringement under the Lanham Act (Count IV). Plaintiff
also asserts state law claims for unfair competition (Counts II and III), injurious falsehood
(Count V), tortious interference with business relationships (Count VI), conversion (Count VII),
and violation of the New Jersey Consumer Fraud Act (“NJCfA”) (Count VIII). In response,
Defendant filed the instant Motion to Dismiss, contending that Plaintiff has failed to plead each
count with the requisite particularity. [ECF No. 12.] Defendant further contends that Plaintiff
lacks standing as to Count VIII.

[]

III. LEGAL STANDARD
A.

Failure to State a Claim

To survive a motion to dismiss pursuant to federal Rule of Civil Procedure 12(b)(6), a
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.” Ashcroft v. Igbal, 556 U.S. 662, 67$ (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court
must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable
Phillips v. County of Allegheny, 515 F.3d 224,

inferences in favor of the non-moving party.

234 (3d Cir. 2008). “Factual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. “A pleading that offers labels and conclusions will
not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.” Igbal, 556 U.S. at 67$ (internal citations omitted). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal

4

conclusions.

Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”

Id.

Additionally, in evaluating a plaintiffs claims,

generally “a court looks only to the facts alleged in the complaint and its attachments without
reference to other parts of the record.” Jordan v. fox, Rothschild, O’Brien & frankel, 20 F.3d
1250, 1261 (3dCir. 1994).
B. Subject Matter Jurisdiction

A motion to dismiss for lack of standing is properly brought pursuant to Federal Rule of
Civil Procedure 12(b)(l), because standing is a matter ofjurisdiction. Ballentine v. United States,
486 F.3d 806, 810 (3d Cir. 2007) (citing St. Thomas-St. John Hotel Tourism Ass’n v. Gov’t of the
U.S. Virgin Islands, 218 F.3d 232, 240 (3d Cir. 2000). “Article III of the Constitution limits the
jurisdiction of federal courts to ‘Cases’ and ‘Controversies.” Lance v. Coffman, 549 U.S. 437,
439 (2007). One key aspect of this case or controversy requirement is standing. Lance, 549 U.S.
at 549; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core component of
standing is an essential and unchanging part of the case-or-controversy requirement of Article
III.”) “The standing inquiry focuses on whether the party invoking jurisdiction had the requisite
stake in the outcome when the suit was filed.” Constitution Party v. Aichele, 757 f.3d 347, 360
(3d Cir. 2014) (citing Davis v. FEC, 554 U.S. 724, 734 (2008)). “[T]o establish standing, a plaintiff
must show (1) an ‘injury in fact,’ i.e., an actual or imminently threatened injury that is ‘concrete
and particularized’; (2) causation, i.e., traceability of the injury to the actions of the defendant; and
(3) redressability of the injury by a favorable decision by the Court.” Nat’l Collegiate Athletic
Ass’n v. Gov. of N.J., 730 F.3d 208, 218 (3d Cir. 2013) (citing Summers v. Earth Island Inst., 555
U.S. 488, 493 (2009)). “The party invoking federal jurisdiction bears the burden of establishing

5

these elements.” Lujan, 504 U.S. at 561.

At the motion to dismiss stage, a plaintiff must

demonstrate a plausible claim of standing.

id.

IV. DISCUSSION

For the following reasons, Defendant’s Motion to Dismiss Plaintiffs First Amended
Complaint is granted in part and denied in part.
A. Copyright Infringement (Count I)

Defendant contends that Plaintiffs copyright infringement claim should be dismissed for
failure to state a claim. To survive a motion to dismiss, a claim for copyright infringement must
allege: (1) which specific original works are the subject of the copyright; (2) that the plaintiff owns
the copyrights in those works; (3) that the copyrights have been registered in accordance with the
[Copyright Acti; and (4) by what acts and during what time the defendant infringed the copyright.
Bradshaw v. American Institute for History Educ., Civ. No. 12-1367, 2013 U.S. Dist. LEXIS
34566, at *7 (D.N.J. Mar. 13, 2013) (citing Gee v. CBS, Inc., 471 F. Supp. 600, 643 (E.D. Pa.
1979), affd, 612 F.2d 572 (3d Cir. 1979)).
“[P]roperly pleading the specific original work that is the subject of the copyright claim is
often times accomplished by attaching the Copyright Registration to the Complaint.” Flynn v.
Health Advocate, Inc., Civ. A. No. 03-3764, 2004 U.S. Dist. LEXIS 12536, at *6 (E.D. Pa. July 8,
2004). Here, Plaintiff has attached the Copyright Registrations for the works it alleges are the
subject of its copyright infringement claim. {çç Am. Compi. Ex. B.] The Hampden Drawings
were registered with the Copyright Office on April 29, 2013. Defendant does not dispute that
Plaintiff registered the copyrights in accordance with the Copyright Act. Finally, Plaintiffs
Amended Complaint alleges specific instances of Defendant’s infringement—specifically,

6

February 22, 2013 (Estimate # Curtis-0 to MEC), March 1, 2013 (Estimate # PS162-0 and
# Curtis-2 to MEC), the Shear Website, and providing the Shear Drawings to Solar Electric.
Defendant argues that the drawings associated with the respective copyrights should not
have a presumption of validity because the registrations were obtained over five years afier
publication. [$c ECF No. 12 (“Def. Br.”) at 4 (citing 17 U.S.C.

§ 410(c)).] That argument,

however, pertains to evidentiary weight—a question that is reserved for the discretion of the Court
at the appropriate time. ç 17 U.S.C.

§ 410(c). At the motion to dismiss phase, the Court views

the facts in a light most favorable to Plaintiff and the validity of the copyright is assumed.
Defendant further contends that Plaintiff is attempting to expand the scope of its copyright
to prevent Defendant from making and selling the Shear Products, which are useful objects not
otherwise subject to copyright protection. [Sçç Def. Br. at 4-7.] Niemi v. Am. Axle Mfg. &
Holding Inc., 05-74210, 2006 U.S. Dist. LEXIS 50153, at *9 (E.D. Mich. July 24, 2006) (“[T]he
manufacture of a machine from a copyrighted technical drawing is clearly not copyright
infringement.”). To the extent Plaintiff attempts to assert a claim for copyright infringement on
the basis that Defendant manufactured the Shear Products using copies of the Hampden Drawings,
that claim would fail as a matter of law. See Forest River, Inc. v. Heartland Recreational Vehicles,
LLC, 753 F. Supp. 2d 753, 760 (N.D. md. 2010).

However, on the face of the Amended

Complaint, it is the Shear Drawings that are alleged to infringe the copyright. [See Am. Compi.

¶J 32-36.]
Finally, Defendant appears to argue that, because Plaintiff has not identified the portions
of the copyrighted work that are original and were copied by Defendant, Plaintiff has not
established that copyright infringement occurred. [$çç Def. Br. at 7 (citing Feist Publications, Inc.
v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991)).] However, it is axiomatic that “standards

7

of pleading are not the same as standards of proof’ and a plaintiff is not required to “prove [its]
case” in its complaint. See Phillips, 515 F.3d at 246; see also Ford Motor Co. v. Edgewood Props.,
No.06-1278,2009 U.S. Dist. LEXIS 4172, at *36 (D.N.J. Jan. 20, 2009) (“[The plaintiff] does not
have to prove its case at this point. Rule 8(a)(2) requires only a ‘showing’ that the claimant is
entitled to relief--not a ‘showing’ of evidence.”). At this point, the Court cannot make factual
determinations regarding the originality of the copyrighted work and whether Defendant copied
the original elements. Rather, the Court restricts its analysis to whether the Amended Complaint
pleads facts sufficient to survive a motion to dismiss.

jçi Plaintiff has pleaded enough facts

to “raise a reasonable expectation that discovery will reveal evidence” of the necessary elements
ofthe claim for copyright infringement. cç Twombly, 550 U.S. at 556. Accordingly, Defendant’s
Motion to Dismiss will be denied as to Plaintiffs copyright infringement claim.
B. Unfair Competition

—

Passing Off (Counts II and III)

Counts II and III of the Amended Complaint assert causes of action for unfair competition
in connection with Defendant allegedly “passing off’ Plaintiffs intellectual property and products
as its own. “Passing off’ occurs when “one fraudulently markets his goods as those of another.
•

.“

$K&F, Co. v. Premo Pharm. Labs., Inc., 625 F.2d 1055, 1062 (3d Cir. 1980); see also Web

Printing Controls Co. v. Oxy-Dry Corp., 906 f.2d 1202, 1203 n.1 (7th Cir. 1990) (“Passing off
involves the selling of a good or service of one’s own creation under the name or mark of another.”)
Here, Plaintiff alleges that Defendant sold another’s creation (i.e., the Hampden Drawings and
Hampden Products) under its own name. [See Am. Compl. at Counts II and III.] Thus, the factual
allegations are reversed and do not support a cause of action for “passing off.”
Rather, construing the Amended Complaint liberally, the factual allegations appear to be
directed to “reverse passing off,” which occurs when one “markets, sells, and represents the goods

8

or services of another as its very own, and thus gives rise to an actionable claim for reproducing,
distributing, or displaying copyrighted works.”

Video Pipeline, Inc. v. Buena Vista Home

Entertainment, Inc., 210 F. Supp. 2d 552, 565 (D.NJ. 2002). Reverse passing off, however, is
preempted by Plaintiffs copyright claim. See Quadratec, Inc. v. Turn 5, Inc., Case No. 13-63 84,
2015 U.S. Dist. LEXIS 107071, at *32 (E.D. Pa. Aug. 13, 2015) (“[U]nfair competition claims
alleging reverse passing off are preempted by the Copyright Act..

.

To the extent Counts II and III of the Amended Complaint are directed to “passing off,”
the factual allegations do not support it. To the extent they are directed to “reverse passing off,”
they are preempted as a matter of law. Thus, Counts II and III of Plaintiffs Amended Complaint
must be dismissed.
C. Trade Dress Infringement (Count IV)

Plaintiff alleges that the Shear Products infringe the trade dress of the Hampden Products
pursuant to the Lanham Act. The elements of a trade dress infringement claim are: “(1) the
allegedly infringing design is nonfunctional; (2) the design is inherently distinctive or has acquired
secondary meaning; and (3) consumers are likely to confuse the source of the plaintiffs product
with that of the defendant’s product.” McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC,
511 F.3d 350, 357 (3d Cir. 2007). Further, it is the Plaintiffs duty to “articulat[e] the specific
elements which comprise its distinct dress.” See Landscape Forms, Inc. v. Columbia Cascade Co.,
113 F.3d 373, 381 (2d Cir. 1997). This practice allows the district court to ensure that the claim
is not “pitched at an improper level of generality” and the plaintiff is not “seek[ing] protection for
an unprotectable style, theme or idea.” Id. at 381.
Plaintiffs Amended Complaint reiterates the elements of a trade dress claim by generally
stating that the Hampden Products “are inherently distinctive or have acquired secondary meaning

9

in the marketplace.” [Am. Compi.

¶J

24, 106.] The Amended Complaint fails, however, to

identify any aspects of the design of the Hampden Products that are distinctive and thus subject to
trade dress protection. Therefore, Plaintiff s trade dress claim cannot survive Defendant’s Motion
to Dismiss and Count IV of the Amended Complaint must be dismissed.
D. Injurious Falsehood (Count V)

Count V requests relief against Defendant for injurious falsehood. In order to state a
claim for injurious falsehood/product disparagement under New Jersey law, a plaintiff must
establish: “(1) publication (2) with malice (3) of false allegations concerning plaintiffs property
or product (4) causing special damages, i.e. pecuniary harm.” Sys. Operations, Inc. v. Scientific
Games Dev. Corp., 555 F.2d 1131, 1140 (3d Cir. 1977). This requires a plaintiff to establish
“pecuniary loss that has been realized or liquidated, such as lost sales, or the loss of prospective
contracts with customers.” Graco, Inc. v. PMC Global, Inc., Civ. A. No. 08-1304 (FLW), 2009
U.S. Dist. LEXIS 26845, at *121 (D.N.J. March 31, 2009).
While, the Amended Complaint pleads the publication element of an injurious falsehood
claim by alleging that Defendant communicated with NYCSCA

[ Am. Compi. ¶114], the other

elements of the claim are lacking. The Amended Complaint alleges that Defendant made false
statements about its own products rather than about Plaintiffs products.

[$ Am. Compl. ¶ 116.]

Moreover, Plaintiff has failed to adequately plead special damages. Therefore, Count V must be
dismissed.
E. Tortious Interference with Business Relationships (Count VI)

Plaintiff alleges Defendant tortiously interfered with its business relationships. Under New
Jersey law, a claim for tortious interference must satisfy the following elements: (1) plaintiff had
a reasonable expectation of economic benefit or advantage; (2) defendant knew of plaintiffs

10

expectation; (3) defendant wrongfully, intentionally interfered with that expectation; (4) absent
defendant’s interference, a reasonable probability existed that plaintiff would have received the
expected economic benefit; and (5) plaintiff suffered damages resulting from defendant’s
interference. Fineman v. Armstrong World Indus., Inc., 980 f.2d 171, 186 (3d Cir. 1992).
Plaintiffs Amended Complaint alleges that Plaintiff has in the past sold equipment to MEC
and met with Solar Electric to discuss a quote for a project. [See Am. Compl.

¶J 47,

51.] In

essence, this amounts to a general allegation that Plaintiff had at least some business relationship
with those two entities.

However, Plaintiff makes no allegation as to how those alleged

relationships gave rise to a reasonable expectation of economic benefit or a reasonable probability
that Plaintiff would have received such a benefit. Furthermore, Plaintiff does not allege that
Defendant knew of Plaintiffs relationship with either of those entities and intentionally interfered
with Plaintiffs expectations.

While, the Amended Complaint cursorily labels Defendant’s

behavior as “devious, improper, and unrighteous” [Am. Compl.

¶ 125],

it does not describe or

specify what alleged acts or actions Defendant undertook to interfere with Plaintiffs business
relationships. Accordingly, the Amended Complaint does not sufficiently plead facts to support a
cause of action for tortious interference and Count VI must be dismissed.
F. Conversion (Count VII)

Plaintiffs seventh count is for conversion. [ç Am. Compl.

¶

128.] Conversion is “an

unauthorized assumption and exercise of the right of ownership over goods or personal chattels
belonging to another, to the alteration of their condition or the exclusion of an owner’s rights.”
Barco Auto Leasing Corp. v. Holt, 228 N.J. Super. 77, 83, 548 A.2d 1161, 1164-65 (App. Div.
1988) (citations omitted). The elements of common law conversion under New Jersey law are
(1) the existence of property, (2) the right to immediate possession thereof belonging to a person,

11

and (3) the wrongful interference with that right by a different person. Corestar Int’l PTE. Ltd. v.
LPB Communs., Inc., 513 F. $upp. 2d 107, 127 (D.N.J. 2007). “Importantly, the tort of conversion
‘relate[s] to interference with tangible rather than intangible property.”

Weilness Pubi. v.

Barefoot, No. 02-3773, 2008 U.S. Dist. LEXIS 1514, at *64 (D.N.J. Jan. 8, 2008) (quoting Video
Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 210 F.Supp.2d 552, 568 (D.N.J.2002)).
The pleaded facts do not support a cause of action for conversion. Plaintiff asserts that
Defendant manufactured and sold Defendant’s Shear Products which are allegedly “substantially
similar” to Plaintiffs Hampden Products. [ç Am. Compl.

¶J 39, 41, 43,

45.] That allegation

pertains to Plaintiffs ownership interest in intangible intellectual property associated with its
products. That is not the same as an allegation that Defendant interfered with Plaintiffs right of
ownership over Plaintiffs own tangible Hampden Products. Like in Wellness Pubi., the Amended
Complaint “contains not a single allegation that Defendant[] wrongfully exercised control or
otherwise interfered with any tangible property belonging to Plaintiffi].” 2008 U.S. Dist. LEXIS
1514, at *64. Accordingly, Count VII must be dismissed.
G. Violation of New Jersey Consumer Fraud Act (Count VIII)

Plaintiff brings Count VIII requesting relief from Defendant under the NJCFA, which was
enacted to protect consumers from improper selling practices by “prevent[ing] deception, fraud,
falsity, whether by acts of commission or omission, in connection with the sale and advertisement
of merchandise and real estate.”

Fenwick v. Kay American Jeep, Inc., 371 A.2d 13, 15 (1977).

The NJCFA provides the right to initiate a private cause of action to “[a]ny person who suffers any
ascertainable loss of moneys.

.

.

as a result” of a violation of the NJCFA. N.J.S.A

§ 56:8-19. “A

corporation may qualify as a person under the [NJCFA] when it finds itself in a consumer oriented

12

situation.” Trans USA Prods. v. Howard Berger Co., No. 07-5924, 2008 U.S. Dist. LEXIS 61069,
at *18 (D.N.J. Aug. 4, 2008).
Here, Plaintiff is not the “person” to which the NJCFA provides a private cause of action
because Plaintiff is not in a “consumer oriented situation.” See ii Plaintiff appears to be alleging
that Defendant violated the NJCFA by making misrepresentations to other third-party consumers.6
Accordingly, Plaintiff has not suffered an “injury in fact” under the NJCFA and lacks standing to
assert its claim. Therefore, Count VIII must be dismissed.
V. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss is granted in part and
denied in part. Specifically, Defendant’s Motion to Dismiss is denied as to Count I and granted as
to Counts Il-Vill. To the extent the deficiencies in Plaintiffs Amended Complaint can be cured
by way of amendment, Plaintiff is granted thirty (30) days to file a second amended complaint
solely for purposes of amending the dismissed claims. An appropriate Order accompanies this
Opinion.

Dated:

L1 L(

c__
CLAIRE C. CECCHI, U.$.D.J.

6

The Court notes that it is not clear that any of those consumers (e.g., MEC, Solar Electric, Bread
and Roses High School, etc.) could bring a cause of action against Defendant under the NJCFA
because they do not appear to have suffered any ascertainable loss. That question, however, is not
before this Court on this motion to dismiss.

13