GUNDELL v. SLEEPY'S, LLC et al

Filing 142

MEMORANDUM & OPINION Filed. Signed by Judge Robert Kirsch on 6/13/2023. (jal, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JEFFREY GUNDELL, on behalf of himself
and others similarly situated,

Plaintiff,

Civil Action No. 15-7365 (RK) (DEA)
V.

MEMORANDUM OPINION

SLEEPY'S,LLC,etaL,
Defendants.

KIRSCH, District Judge
THIS MATTER comes before the Court upon two Motions for Reconsideration filed by
Plaintiff Jeffrey Gundell. (ECF Nos. 130 & 131.) Plaintiff moves the Court to reconsider the
November 30, 2022 Opinion and Order issued by the Honorable Judge Zahid N. Quraishi,
granting Defendants' Motion for Summary Judgment on Counts I and HI of Plaintiff s Third
Amended Complaint ("TAG"). (ECF Nos. 114 & 115.) In a separate motion, Plaintiff also seeks
reconsideration of Judge Quraishi's December 6, 2022 Opinion and Order denying Plaintiffs
Motion for Class Certification on all three counts of the TAG. (ECF Nos. 117 & 118.) Plaintiff
filed the subject motions and supporting briefs on February 3, 2023. Defendants filed
memoranda in opposition on February 21, 2023. (ECF Nos. 134 & 135.) Plaintiff filed replies on
March 9, 2023. (ECFNo. 137.)1
The Court has carefully considered the parties' submissions and decides the motions
without oral argument pursuant to Federal Rule of Civil Procedure 7 8 (b) and Local Civil Rule

1 Thereafter, the matter was reassigned to this Court.

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78.1(b). For the reasons that follow, Plaintiff's motions for reconsideration with respect to
Counts I and HI of the TAG are DENIED.

I. BACKGROUND
As the facts have been discussed at length in the Court's prior opinions, only a brief
redtation follows. On May 24, 2015, Plaintiff ordered a "TP Ergo Plus" mattress base, expecting
that it would be compatible with his new Tempur-Pedic mattress. (See generally ECF No. 1 14 at
3; ECF No. 117 1-3.) The base was timely delivered. (Id.) Moreover, by Plaintiffs own
acknowledgment, the base that was delivered was the exact base listed in his sales contract. (Id.)
However, the base was not compatible with his mattress. (M) Plaintiff requested and was denied
a full refund from Sleepy's. (Id.) He then sued Tempur-Pedic and Sleepy's, alleging in Counts I
and III several violations of the Furniture Delivery Act ("FDR"), Consumer Fraud Act ("CFA"),
and the Truth-in-Consumer Contract and Warranty, and Notice Act ("TCCWNA").2
The District Court granted Defendants' motion summary judgment and dismissed Counts
I and HI.3 The Court held that "as a matter of law, the FDR determines conformity by comparing
the good received to that indicated in the sales contract. Given that the mattress base that
Plaintiff received was the exact mattress base indicated in the sales contract, Defendants
complied with the FDR and the CFA." (Id. at 7). The fact that the base did not accommodate his
mattress was "immaterial" to the analysis. {Id. at 6.) Furthermore, because Plaintiff received both

2 Plaintiff reached a settlement with Tempur-Pedic in November 2015. (ECF No. 114 at 3.) Defendant
notes that the settlement payment amounted to four times the purchase price of the mattress, and Plaintiff
does not dispute the dollar amounts. (Id.)
The Court denied Defendants' motion for summary judgment as to Count II, which requests a

declaratory judgment that the limitation of liability and refund provisions are null and void as against
statutes and public policy pursuant to the Uniform Declaratory Judgment Act. (TAG ^[ 85-94.) There, the
Court found that Defendants made no arguments specifically directed to Count Two and "have therefore
not met their burden as moving parties . ..." (ECF No. 114 at 12.) The parties' motions for
reconsideration with respect to Count II are not considered in this Opinion.

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a timely and conforming delivery of the product he ordered, Plaintiff failed to show that he was
an "aggrieved consumer" under the TCCWNA as construed by the New Jersey Supreme Court in
Spade v. Select Comfort Corp., 232 N.J. 504 (2018). {Id. at 11.)
Plaintiff now seeks the Court to reconsider its findings that the mattress base was
conforming and that the sales contracts violated the CFA, FDR, and TCCWNA.

II. LEGAL STANDARD
Reconsideration is an "extraordinary remedy" to be granted "sparingly." United States v.
Cobum, No. 19-00120, 2022 WL 874458, at *2 (D.N.J. Mar. 23, 2022) (quoting M/ 7W^. Inc.
v. Corn. Union Ins. Co., 935 F. Supp.513,516 (D.N.J. 1996)). "The purpose of a motion for
reconsideration . . . is to correct manifest errors of law or fact or to present newly discovered
evidence." Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 251 (3d Cir.
2010) (quotation marks omitted) (quoting Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros,
176 F. 3d 669, 677 (3d Cir. 1999)). To succeed on a motion for reconsideration, a movant must
show "(I) an intervening change in the controlling law; (2) new evidence that was not available
when the court issued its order, or (3) the need to correct a clear error of law or prevent manifest
injustice." Gibson v. State Farm Mut. Auto. Ins. Co., 994 F.3d 182, 190 (3d Cir. 2020) (citing

Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)).
Pursuant to Local Civil Rule 7.1(i), a party may move for reconsideration within fourteen
(14) days of an entry of order or judgment on the original motion. In its brief, the party must
"set[] forth concisely the matter or controlling decisions which the party believes the Judge has
overlooked." See L. Civ. R. 7.1(i). "The word 'overlooked' is the operative term in the Rule."
Bowers v. Nat'l Collegiate Athletic Ass'n, 130 F. Supp. 2d 610, 612 (D.N.J. 2001) (citing Allyn
Z. Lite, New Jersey Federal Practice Rules 30 (2001)). A motion for reconsideration does not

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entitle a party to a second bite at the apple, and reconsideration is inappropriate when a party
merely disagrees with a court's ruling or when a party simply wishes to re-argue its original
motion. Sch. Specialty, Inc. v. Ferrentino, No. 14-4507, 2015 WL 4602995, *2-3 (D.N.J. July
30, 2015); see also Florham Park Chevron, Inc. v. Chevron U.S.A., 680 F. Supp. 159, 162
(D.N.J. 1988).4

HI. DISCUSSION
A. Summary Judgment as to Counts I and III
Plaintiffs first motion for reconsideration argues that the Court considered only whether
the mattress base was non-conforming but neglected to consider whether it was also damaged
pursuant to the Furniture Delivery Regulations ("FDR"), N.J.A.C. 13:45-5.1 et seq. (ECF No.
130-1 at 8-9.) Plaintiff argues that "the delivery of furniture that is different than advertised and
represented to be" constitutes a damaged good under section 13:45A-5.1(e) of the FDR. {Id. at
1-2.) Accordingly, the subject mattress base should have been determined "damaged" and
therefore non-conforming under the FDR. (Id. at 9.)
Plaintiffs contention that the Court failed to consider whether the furniture was damaged
on delivery is belied by the record. In its November 30, 2022 opinion, the Court initially noted
that under the FDR, "delivery of furniture or furnishings that are damaged or that are not the
exact size, style, color or condition indicated on the sales contract, shall not constitute delivery
as required by (a)l above." (ECF No. 114 at 6 (emphasis in original) (quoting N.J.A.C.
§ 13:45A-5.1(a)(5)).) The Court noted that, pursuant to Defendants' sales invoice, customers
could refuse delivery "if [the] merchandise is delivered damaged." (ECF No. 114 at 9.)

4 The Court will deem the motions timely noting, however, that Judge Quraishi did not rule on the parties'
request for an extension (ECF No. 125) and Plaintiffs filed two weeks late (ECF No. 123). See Smith v.
Manasquan Bank, No. 18-0048, 2018 U.S. Dist. LEXIS 73854 at *4 (D.N.J. Apr. 30, 2018) (denying
motion filed six days out of time).

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Notwithstanding these provisions, the Court found that the mattress base Plaintiff received was
conforming under the FDR because — by Plaintiff's own admission — "the base that was
delivered was the exact base that was listed in his sales contract." (ECF No. 114 at 7 (citing
GundellDep. 36:20-22).)
Given that there is no dispute that Plaintiff ordered a specific product and that that exact
product was delivered to him, the Court sees no grounds to reconsider Judge Quraishi's ruling.
Plaintiff cites no authority for the proposition that a product, although exactly what was ordered
but thereafter determined not "compatible," is "damaged," either in common parlance or under
section 13:45A-5.1(a)(l) of the FDR.5 Plaintiff also fails to show how the Court made a clear
error of law in finding that the terms of the sales contract governs the application of section
13:45A-5.1(a)(5). See Howard Hess Dental Labs. Inc., 602 F.3d at 251. Accordingly, the Court
denies reconsideration on this ground.

5 Black's Law Dictionary (11th ed. 2019) defines "damage" as "[o]f, relating to, or involving monetary
compensation for loss or injury to a person or property," or as "physical harm that is done to something . .
. ." The Oxford English Dictionary (2nd ed. 1989), which reroutes "damage" to "violence," describes it as
"the exercise of physical force so as to inflict injury on, or cause damage to, persons or property."
Plaintiff has never alleged that the mattress base was broken, dented, or rendered nonfunctional through
physical force.
6 In addition, to the extent that the Court's analysis focused predominately on the second half of N.J.A.C.

section 13:45A-5.1(a)(l) as Plaintiff suggests, it is because Plaintiff's Complaint focused exclusively on
conformity rather than damage. (See TAG, ECF No. 55 ^ 104-117.) Plaintiff devotes a single paragraph
(without citation to any authority) of its 31-page summary judgment brief to the contention that the
product was damaged. (ECF No. 97 at 17.) Even in its Statement of Disputed Material Facts, Plaintiff
describes the nonconfonnity as follows: "there were two problems — the mattress did not conform to the
base, i.e., the mattress did not fit with the base, and there were two bars attached to the base that was

delivered and the one in the store that Plaintiff viewed and ordered had only one bar." (ECF No. 97-3 ^
15.) Plaintiff's failure to demonstrate non-conformity does not now authorize him to use a motion for
reconsideration to refocus the issue on whether the mattress base was damaged under the FDR. Blystone
v. Horn, 664 F.3d 397, 415 (3d Cir. 2001) (parties cannot use the reconsideration motion "as an

opportunity to relitigate the case"); Boretsky v. Governor ofN.J., 433 F. App'x 73, 78 (3d Cir. 2001)
(reconsideration is not "an opportunity for a litigant to raise new arguments or present evidence that could

have been raised prior to the initial judgment").

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Because there is no basis to disturb its prior findings that the furniture was neither
damaged nor non-conforming, Plaintiffs second argument — that "since the furniture was
damaged and non-conforming," defendants were entitled to a full refund — also fails. (ECF No.
130-1 at 10-11.)
Plaintiff's remaining arguments regarding the TCCWNA also fail because they rely on a
finding by this Court that Defendant made a non-conforming and/or damaged delivery under the
FDR. Plaintiffs argument that he is an "aggrieved consumer" under the TCCWNA is premised
solely on the contention that Plaintiff was entitled to a full refund because he received a nonconforming delivery. (ECF No. 130-1 at 14-16.) Because there is no basis to disturb Judge
Quraishi's finding that Defendants' delivery was conforming under the FDR, Plaintiff is not an
"aggrieved consumer" under the TCCWNA. Accordingly, because the Court found that Plaintiff
was not an aggrieved consumer, Plaintiff could not establish a TCCWNA claim regardless of
whether the prohibited language regarding "no refunds" and limited liability existed in the sales
contract.7 Thus, reconsideration on these remaining bases fails as well.
B. Class Certification of Counts I and III
Plaintiffs second motion for reconsideration asks the Court to reconsider its denial of
class certification as to Counts I and 1IL if it reconsiders its decision granting Defendants' motion

7 It is for this reason that the Court did not, in detail, examine the "no refunds" and "Limitation of
Liability" provisions of the sales documents in its November 30, 2022 Opinion, as those arguments

became irrelevant upon finding that Plaintiff was not statutorily entitled to a refund. That said, the
Opinion did not simply ignore these provisions as Plaintiff suggests. In its Opinion granting Defendants'
motion for summary judgment, the Court carefully considered the terms of the sales contract and
concluded as a matter of law that "the contract does not have any prohibited language ... as enumerated

in Spade." (ECF No. 114 at 11.) This finding is supported by the numerous areas of the sales documents
that provided the statutorily required language regarding refunds and cancellations. (See ECF No. 114 at
8-9, 11.) Plaintiffs motion for reconsideration cites to no precedent suggesting that the Court's decision
on this point was error, let alone a clear error of law, as required. See Howard Hess Dental Labs., 602

F.3d at 251 (3d Cir. 2010). The Court's finding on this point was also not inconsistent with its Opinion
denying class certification, as that portion of the Opinion merely found that Plaintiff had pled a
cognizable injury for standing purposes. (ECF No. 117 at 6.)

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for summary judgment. (ECF No. 131-1 at 8-9.) Because the Court declines to reinstate Counts I
and III of the TAG, the Court will not reconsider Judge Quraishi's denial of class certification.

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IV. CONCLUSION
For the reasons stated herein, Plaintiff's motions for reconsideration are DENIED as to
Counts I and III of the TAG. An appropriate Order follows.

ROBJEltT KlRSCH
UNITED STATES DISTRICT JUB^E
Dated: June 13, 2023