ANNECHARICO v. RAYMOUR & FLANIGAN et al
OPINION. Signed by Judge Freda L. Wolfson on 11/30/2016. (km)
*NOR FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TONY ANNECHARICO, individually :
and as a class representative :
on behalf of others similarly :
Civ. Action No.: 16-1652(FLW)
RAYMOUR & FLANIGAN and JOHN
DOE INDIVIDUALS and BUSINESSES :
WOLFSON, District Judge:
Plaintiff Tony Annecharico (“Plaintiff”) purchased a mattress
and a tandem protection plan from defendant Raymour & Flanigan
(“R&F” or “Defendant”), a furniture retailer, approximately five
years prior to filing this suit.
Because of an unspecified defect
in the mattress, Plaintiff sought to use the protection plan for
According to Plaintiff, R&F never rectified the issue as
promised under the plan.
As a result, Plaintiff brings this
putative consumer class action, alleging that Defendant’s conduct
not only breached its express warranty, but it also violated the
New Jersey Consumer Fraud Act (“NJCFA”), and moreover, Plaintiff
avers that the purchase contract he received violates the New
In the instant matter, Defendant moves to dismiss
Plaintiff’s individual claims for failure to state a claim.
on the reasons set forth herein, Defendant’s motion is GRANTED.
However, while Counts One and Two are dismissed, Plaintiff has
leave to amend the Complaint, within 30 days from the date of the
Order accompanying this Opinion, as to Count Three, NJCFA claim,
and Count Four, breach of warranty/contract claim.
BACKGROUND and PROCEDURAL HISTORY
The following facts are taken from the Complaint and assumed
as true for the purposes of this motion.
In December 2010,
Plaintiff purchased a new mattress from R&F at its store located
in Camden County, New Jersey.
Compl., ¶¶ 13-14.
In addition to
purchasing the mattress, Plaintiff alleges that he also brought a
representations from a R&F salesman who claimed that the Plan “was
the best on the market . . .
[because] it covered anything from
stains and tears to sags and/or deformities for a period of 10
year with ‘no questions asked by R&F.’” Id. at ¶¶ 17-18.
to Plaintiff, he never received a document titled “warranty” or
Plaintiff alleges that, instead, he was given the invoice of the
purchase and a brochure “discussing a ‘Platinum Protection Plan’
and a ‘Platinum Mattress Protection Plan’.”
Id. at ¶¶ 19, 21.
experience unspecified problems with his mattress.
schedule a repair.
It is unclear from the Complaint whether
a representative from R&F met with Plaintiff, but Plaintiff alleges
that R&F’s customer service “explained to [Plaintiff] that, while
removed the mattress’ ‘Do Not Remove’ label, that action voided
the service contract.”
Id. at ¶ 23.
Plaintiff further alleges
that, at the time of purchase, “the aforesaid possibility or
condition was never explained or even mention[ed] to [Plaintiff],”
id. at ¶ 24, and the brochure and invoice that Plaintiff received
did not indicate such a contractual limitation.
Id. at ¶ 25.
date, Plaintiff complains that R&F “never offered to replace the
mattress or to provide [Plaintiff] with a refund of the price . .
Id. at ¶ 26.
against Defendant, asserting the following claims: 1) violations
of the TCCWNA; 2) a declaratory judgment pursuant to the TCCWNA;
3) violation of the NJCFA; and 4) breach of contract/warranty.
the instant matter, Defendant moves to dismiss the Complaint in
its entirety for failure to state a claim.
Standard of Review
Under Fed. R. Civ. P. 12(b)(6), a complaint may be dismissed
for “failure to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss on
the pleadings, courts “accept all factual allegations as true,
plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quotations
omitted). Under such a standard, the factual allegations set forth
in a complaint “must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Indeed, “the tenet that a court must accept as
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “[A] complaint must do more than allege the
plaintiff’s entitlement to relief. A complaint has to ‘show’ such
an entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d
203, 211 (3d Cir. 2009).
However, Rule 12(b)(6) only requires a “short and plain
statement of the claim showing that the pleader is entitled to
relief” in order to “give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.” Twombly, 550
U.S. at 555. The complaint must include “enough factual matter
(taken as true) to suggest the required element. This does not
impose a probability requirement at the pleading stage, but instead
simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of the necessary element.”
Phillips, 515 F.3d at 234 (citation and quotations omitted);
Covington v. Int’l Ass’n of Approved Basketball Officials, 710
F.3d 114, 118 (3d Cir. 2013) (“[A] claimant does not have to set
out in detail the facts upon which he bases his claim. The pleading
standard is not akin to a probability requirement; to survive a
motion to dismiss, a complaint merely has to state a plausible
claim for relief.”) (citation and quotations omitted).
In sum, under the current pleading regime, when a court
considers a dismissal motion, three sequential steps must be taken:
first, “it must take note of the elements the plaintiff must plead
to state a claim.” Connelly v. Lane Constr. Corp., 809 F.3d 780,
787 (3d Cir. 2016) (quotations and brackets omitted). Next, the
court “should identify allegations that, because they are no more
than conclusions, are not entitled to the assumption of truth.”
Id. (quotations omitted). Lastly, “when there are well-pleaded
factual allegations, the court should assume their veracity and
then determine whether they plausibly give rise to an entitlement
to relief.” Id. (quotations and brackets omitted).
As a preliminary matter, throughout Plaintiff’s papers, he
purported class has not been certified, on this motion, the Court
must only assess the sufficiency of Plaintiff’s individual claims
to determine whether those are properly pled.
See Bass v. Butler,
116 Fed. Appx. 376, 385 (3d Cir. 2004).
I turn, first, to
Plaintiff’s TCCWNA-related claims.
Section 15 of TCCWNA provides, in pertinent part, that “[n]o
seller” shall “display any written . . . notice or sign” which
“includes any provision that violates any clearly established
legal right of a consumer or responsibility of a seller . . . as
established by State or Federal law at the time the offer is made”
or the “notice or sign is given or displayed.”
15. This provision “establishes liability whenever a seller offers
a consumer a contract, the provisions of which violate any legal
right of a consumer.” Bosland v. Warnock Dodge, Inc., 396 N.J.
Super. 267, 278 (App. Div. 2007), aff'd on other grounds, 197 N.J.
543 (2009). Importantly, TCCWNA does not establish any independent
legal rights or responsibilities.
Watkins v. DineEquity, Inc.,
591 Fed. Appx. 132, 134 (3d Cir. 2014).
Instead, the state statute
only bolsters other legal rights proscribed by other laws.
To state a claim under Section 15 of the TCCWNA, a plaintiff
must allege each of four elements: (1) the plaintiff is a consumer;
(2) the defendant is a seller, lessor, creditor, lender or bailee;
(3) the defendant offers the plaintiff a contract or gives or
displays any written notice or sign; and (4) the contract, notice,
or sign includes a provision that violates any legal right of a
consumer or responsibility of the seller, lessor, creditor, lender
or bailee. Id. at 135 (quoting Bosland, 396 N.J. Super. at 278).
Here, Defendant takes issue with Plaintiff’s allegations with
respect to the last element.
Plaintiff’s TCCWNA claims focus on
the invoice that Plaintiff received at the time he purchased the
mattress from R&F.
On the back side of the invoice the following
ALL SALES ARE FINAL: Once this agreement is executed,
you cannot cancel this sales agreement.
exchange or modification of this agreement shall be
A due bill will be issued.
conditions or terms will be binding on Raymour & Flanigan
unless they are in writing and written on the face of
this agreement. (“Sales Final Clause”)
Correspondingly, the front of the invoice contains the following
If the merchandise ordered by you is not delivered by
the promised delivery date, Raymour & Flanigan must
offer you the choice of (1) canceling your order with a
prompt, full refund of any payments you have made, or
(2) accepting delivery at a specific later date.
Id. at p. 1.
That clause is preceded by the promised delivery
date and other purchase information.
Plaintiff argues that the Sales Final Clause violates New
Jersey’s Household Furniture and Furnishings Regulations, N.J.A.C.
13:45A-5.1, et. seq. (the “HFR”).
Importantly, the actual title
Furnishings,” and governs only delivery of household furniture.
In relevant parts, the HFR states:
conspicuously disclose the seller's obligations in the
case of delayed delivery in compliance with N.J.A.C.
13:45A-5.1 and shall contain, on the first page of the
contract form or sales document, the following notice in
ten-point bold face type:
If the merchandise ordered by you is not delivered by
the promised delivery date, (insert name of seller) must
offer you the choice of (1) canceling your order with a
prompt, full refund of any payments you have made, or
(2) accepting delivery at a specific later date.
N.J.A.C. 13:45A-5.3(a) (emphasis in original).
It shall be unlawful for any person to use any contract
or sales agreement that contains any terms, such as "all
sales final," "no cancellations" or "no refunds," which
responsibilities provided for by this rule. Any contract
or sales agreement which contains such a provision shall
be null and void and unenforceable.
Id. at 13:45A-5.3(c).
There is no dispute, here, that the front side of the invoice
contains the statutory-required language under Subsection (a) of
the HFR. Indeed, the Delivery Clause is a verbatim recitation of
See Invoice, p.1.
Rather, Plaintiff argues that because
the invoice also includes prohibited language under Subsection
(c), the invoice violates Plaintiff’s established rights under the
In that regard, Plaintiff posits that the Sales Final Clause
of the invoice on the back side “is diametrically opposed” to the
language on the front which allows cancellations and refunds when
furniture is untimely delivered.
strained reading of the invoice.
Pl. Br. at p. 13.
But, before I turn to the merits
of Plaintiff’s arguments, I first note that his opposition on this
issue confusingly interjects legal issues involving TCCWNA claims
in the context of the NJCFA.
As pled, Plaintiff’s TCCWNA causes
of action center on the language of the invoice and how the invoice
violates TCCWNA vis-à-vis the HFR. See Compl., ¶¶ 28-64. Although
Plaintiff explains that violations of the HFR are in turn per se
NJCFA violations, as I read Plaintiff’s Complaint, the entirety of
Plaintiff’s individual TCCWNA claims are premised on the HFR. 1
addition, Plaintiff’s opposition offers very little substance in
Plaintiff has not stated a claim under TCCWNA.
While Plaintiff cites case law that stands for the general
legal proposition that “a consumer contract that violates a clearly
established legal right under the [NJCFA] regulations is also a
violation of the TCCWNA,” see Bosland, 396 N.J. Super. at 279,
that proposition has little relevance in the context of Plaintiff’s
TCCWNA claims premised on violations of the HFR. Indeed, Defendant
does not dispute that rights set forth in the HFR, e.g., Subsection
(c) of the HFR, can adequately constitute a clearly established
consumer right under TCCWNA.
I start with the interpretation of the invoice at issue.
New Jersey, contract provisions are to be “read as a whole, without
artificial emphasis on one section, with a consequent disregard
Borough of Princeton, Bd. of Chosen Freeholders of
Mercer, 333 N.J. Super 310, 325 (App. Div. 2000), aff’d, 169 N.J.
“Literalism must give away to context.”
Id. at 325.
Thus, “in weighing competing interpretations, the one to be adopted
is that most in accord with justice and common sense and the
probable intent of the parties.”
Grelu Consulting, Inc. v. Patel,
No. A-3042-11T3, 2013 N.J. Super. Unpub. LEXIS 1362, at *8 (N.J.
App. Div. 2013)(citing Krosnowski v. Krosnowski, 22 N.J. 376, 387
Moreover, all provisions of a contract should be given
effect and “while a contract's provisions must be interpreted with
reference to the whole[,] the specific controls the general.”
Capitol Bus Co. v. Blue Bird Coach Lines, Inc., 478 F.2d 556, 560
(3d Cir. 1973)(citing
Restatement, Contracts §§ 235(c), 236(b)
and (c) (1932); Williston on Contracts, Third Edition §§ 618,
Here, the invoice is a two-sided document; as such, it must
be read as a whole.
See Int'l Ass'n of Machinists & Aero. Workers
v. US Airways, Inc., 358 F.3d 255, 266 (3d Cir. 2004) (it is an
“elementary canon that a contract must be read as a whole, and
that individual provisions must be read in their context and not
in a vacuum . . . .”).
To reiterate, on the front of the invoice,
the Delivery Clause contains the identical language required by
the HFR regarding options a consumer may elect in the event
delivery of the furniture is untimely.
The invoice’s back side
contains a number of general Terms and Conditions of Sale, among
which are the terms set forth in the Sales Final Clause – i.e,
that once the invoice has been signed, the customer cannot cancel
the agreement or receive a refund or exchange.
But, the Sales
Final Clause includes the following significant condition: “No
Flanigan unless they are in writing and written on the face of
Invoice, p.2 (emphasis added).
provision exempts other conditions set forth elsewhere in the
invoice, which would be excluded from the terms proscribed by the
Sales Final Clause; and, one such exemption is the Delivery Clause.
That clause expressly states that if merchandise is not timely
delivered, R&F must offer a cancelation and refund, or another
Thus, contrary to Plaintiff’s contention, these two clauses
are not “diametrically opposed” but rather, they can be read in
harmony with each other.
See, e.g., Manahawkin v. Convalescent v.
O’Neill, 217 N.J. 99, 118-19 (2014) (finding appropriate the
dismissal of NJCFA and TCCWNA claims that were premised upon the
theory that a particular section of an agreement violated the
Nursing Home Act, because when that agreement is read in its
entirety, it did not contravene the Act).
Plaintiff has cited no authority that has held that the HFR
contains strict prohibition on “all sales final” language in home
furniture delivery contracts and invoices.
Rather, the plain
language of the HFR, under Subsection (c), only prohibits that
type of language when its use would violate or contradict other
protections that the regulations provide — specifically, here, the
ability to cancel in the event of a late delivery of merchandise.
I find that because the Sales Final Clause discloses that there
are circumstances where a customer may cancel or seek a refund,
complaint with the HFR, despite including general language that
“all sales are final.” 2
Accordingly, Count One of Plaintiff’s
Complaint is dismissed.
Correspondingly, Count Two must also be dismissed.
Count, Plaintiff asserts a claim under the Uniform Declaratory
Judgments Law, N.J.S.A 2A:16-50, et seq., seeking a declaration
that the sales invoice he received in connection with his December
2010 purchase of his mattress is void and unenforceable because
the invoice failed to comply with the HFR, and thus violated
Defendant alternatively argues that Plaintiff’s TCCWNA claims
should be dismissed because he has not alleged that he is an
aggrieved customer under TCCWNA. Since I have found that Plaintiff
fails to state a TCCWNA claim, I need not resolve this issue.
TCCWNA. Since Plaintiff has failed to plead sufficiently the facts
and legal basis upon which his TCCWNA claim are based, Count Two
is also dismissed for failure to state a claim for the same
In Count Three of the Complaint, Plaintiff alleges that
Defendant violated the NJCFA by misrepresenting the essential
terms of the Protection Plan, and omitting certain information
relevant to the Plan.
Those alleged fraudulent acts, according to
response, Defendant argues that Plaintiff failed to sufficiently
allege all of the required elements under the NJCFA.
The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -181,
“provides relief to consumers from ‘fraudulent practices in the
Lee v. Carter-Reed Co., 203 N.J. 496, 521 (2010)
(quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11 (2004)).
To establish a cause of action under the New Jersey Consumer Fraud
Act, a consumer must plead “(1) an unlawful practice, (2) an
ascertainable loss, and (3) a causal relationship between the
unlawful conduct and the ascertainable loss.” Gonzalez v. Wilshire
Credit Corp., 207 N.J. 557, 576 (2011); Lee, 203 N.J. at 521.
“It is well-established that NJCFA claims must meet the
Lieberson v. Johnson & Johnson Consumer Cos., Inc., 865 F. Supp.
2d 529, 538 (D.N.J. 2011) (citing Frederico v. Home Depot, 507
F.3d 188, 200 (3d Cir. 2007); Arcand v. Brother Intern. Corp., 673
F. Supp. 2d 282 (D.N.J. 2009)). Rule 9(b) requires that “[i]n
alleging fraud or mistake, a party must state with particularity
the circumstances constituting fraud or mistake.” Fed. R. Civ. P.
9(b). That is, “the plaintiff must plead or allege the date, time
and place of the alleged fraud or otherwise inject precision or
some measure of substantiation into a fraud allegation.” Frederico
v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007). However, courts
should “apply the rule with some flexibility and should not require
plaintiffs to plead issues that may have been concealed by the
Torsiello v. Strobeck, 955 F. Supp. 2d 300, 307
(D.N.J. 2013) (internal quotation omitted). In the context of a
class action, “the individual named plaintiffs' claims should each
satisfy Rule 9(b) independently.” In re Prudential Ins. Co. of Am.
Sales Practices Litig., 975 F. Supp. 584, 597 (D.N.J. 1996).
I note at the outset that Plaintiff’s Complaint is not a model
of clarity; while Plaintiff spent numerous paragraphs setting
forth his NJCFA allegations, it is difficult to decipher upon what
types of unlawful conduct Plaintiff bases his NJCFA claim.
appears that Plaintiff’s theory of liability under the NJCFA is
premised on three separate acts: 1) Defendant violated the NJCFA
Defendant’s sales agent made misrepresentations to Plaintiff about
the scope of the coverage of the Protection Plan; and 3) Defendant
omitted information regarding the removal of certain tags on
For the purposes of the NJCFA, New Jersey courts recognize
three types of unlawful conduct:
omissions of material facts and violations of certain regulations
promulgated under the statute.
Hassler v. Sovereign Bank, 644 F.
Supp. 2d 509, 514 (D.N.J. 2009), aff’d, 374 Fed. Appx. 341 (3d
The common thread that pervades all types of unlawful
conduct under the NJCFA is “[its] capacity to mislead.” Cox v.
Sears Roebuck & Co., 138 N.J. 2, 17 (1994) (citing Fenwick v. Kay
Am. Jeep, Inc., 72 N.J. 372, 378 (1977)).
Apart from this common
characteristic, however, there are several differences between
misrepresentations and omissions. See Leon v. Rite Aid Corp., 340
N.J. Super. 462, 468 (App. Div. 2001) (“This statutory scheme
distinguishes between wrongs committed by affirmative acts and
wrongs committed by a failure to act”). For one, misrepresentations
do not require a showing of intent or even actual deceit or fraud.
Cox, 138 N.J. at 17-18; Leon, 340 N.J. Super. at 468; see also
Gennari v. Weichert Co. Realtors, 148 N.J. 582, 605 (1997) (“One
who makes an affirmative misrepresentation is liable even in the
absence of knowledge of the falsity of the misrepresentation,
misrepresentation need not be one of material fact. Arcand, 673 F.
Supp. 2d at 297. In contrast, omissions consist of (1) knowingly
concealed (2) material facts (3) concealed with the intention that
the consumer rely upon the concealment. Judge v. Blackfin Yacht
Corp., 357 N.J. Super. 418, 426 (App. Div. 2003) (citing Feinberg
v. Red Bank Volvo, Inc., 331 N.J. Super. 506, 511 (App. Div.
Plaintiff’s first theory of unlawful conduct fails because
I have already found that as a matter of law, Plaintiff cannot
sustain his TCCWNA claim based on violations of the HFR.
same reasons, Plaintiff’s NJCFA claim based on the same conduct
cannot state a claim. Next, Plaintiff alleges that the sales agent
at the R&F store at the time Plaintiff purchased the mattress
fraudulently induced him to buy the Protection Plan by stating
that the Plan “was best on the market, [and by] claiming [that] it
covered everything from stains and tears to sags and/or deformities
for a period of 10 years with ‘no questions asked’ by R&F.” Compl.,
Plaintiff further alleges that when he contacted Defendant
with an unspecified issue with his mattress, Defendant failed to
honor the terms of the Protection Plan.
However, what Plaintiff
fails to allege with respect to the agent’s representation is the
falsity of the agent’s statement.
The fundamental deficiency of
this alleged unlawful conduct is that Plaintiff does not identify
the defect with respect to his mattress — whether there was a sag,
stain, tear or any types of deformity.
This missing allegation is
important because it would demonstrate the falsity of the agent’s
claims. For example, it would be a false claim should Defendant
fail to honor the Plan if Plaintiff’s mattress had a tear.
based on Plaintiff’s own averments, Defendant’s customer service
informed Plaintiff that “while R&F would normally replace the
Remove’ label, that action voided” the Protection Plan.
Id. at ¶
It was based on that particular reason that Defendant refused
to perform under the Plan, not because the Plan did not cover the
“problems” that Plaintiff was experiencing with his mattress.
Lastly, Plaintiff alleges that neither the agent nor the
brochure regarding the Protection Plan explained to him that the
“removal of the mattresses’ ‘Do Not Remove’ label would void the
However, as I set forth above, to adequately plead an
omission under the NJCFA, Plaintiff must allege that Defendant:
(1) knowingly concealed; (2) material facts; and (3) Defendant
concealed material facts with the intention that the consumer rely
upon the concealment. The only allegation Plaintiff has identified
Defendant failed to inform Plaintiff the consequences of removing
the “Do Not Remove” tag.
Other than that, Plaintiff has not
alleged any of the remaining elements to sufficiently allege an
Accordingly, Plaintiff has failed to allege
properly any unlawful conduct under his NJCFA claim.
Ascertainable Loss and Causation
"The ascertainable loss and causation elements of a [NJCFA]
statutory remedy for '[a]ny person who suffers any ascertainable
loss of moneys or property, real or personal, as a result of the
use or employment by another person of any method, act, or practice
declared unlawful under this act.’” D'Agostino v. Maldonado, 216
unmistakably makes . . . ascertainable loss a prerequisite for a
private cause of action. An ascertainable loss under the NJCFA is
one that is ‘quantifiable or measurable,’ not ‘hypothetical or
illusory.’” Id. at 185 (internal quotation marks and citations
omitted); see also Bosland v. Warnock Dodge, Inc., 197 N.J. 543,
558 (2009) (defining term “ascertainable loss” to “mean that
plaintiff must suffer a definite, certain and measurable loss,
rather than one that is merely theoretical.”) (citing Thiedemann
v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005)).
The New Jersey Supreme Court has “not always equated an
ascertainable loss with one that is demonstrated by an immediate,
out-of-pocket expense suffered by the consumer.” Bosland, 197 N.J.
at 558-59 (citing Thiedemann, 183 N.J. at 248).
In other words,
“a plaintiff is not required to show monetary loss, but only that
he purchased something and received less than what was promised.”
Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 606 (3d Cir. 2012)
(internal quotation marks and citations omitted).
“There are at
least three recognized theories of ascertainable loss that may
apply to a NJCFA claim.”
Hammer v. Vital Pharms., Inc., No. 11-
4124, 2012 U.S. Dist. LEXIS 40632, at *22 (D.N.J. Mar. 26, 2012).
In cases involving product misrepresentation, either
out-of-pocket loss or a demonstration of loss in value
will suffice to meet the ascertainable loss hurdle . .
. . The “out-of-pocket” theory may include the purchase
price of a misrepresented product if the purchasers did
not receive a refund and the seller's misrepresentations
rendered the product essentially worthless. A “loss-invalue” theory is based on the quantifiable difference in
value between the merchandise as [advertised] and the
merchandise as delivered. Under the third theory, an
ascertainable loss can include a nominal overcharge for
which the plaintiffs have not made a pre-suit demand for
Id. at *22-23 (internal quotation marks and citations omitted);
see Mann v. TD Bank, N.A., No. 09-1062, 2010 U.S. Dist. LEXIS
112085, *17-18 (D.N.J. Oct. 20, 2010).
Here, much of Plaintiff’s allegations regarding ascertainable
loss seem to center on the out-of-pocket theory. 3
plead an out-of-pocket expense, Plaintiff must allege one of the
following two circumstances: one, that he spent money, or in the
As addressed, infra, Plaintiff has failed to properly allege
a TCCWNA violation arising from the “all sales are final” language
used in the invoice; as such, Plaintiff cannot base his
ascertainable loss on that now-dismissed violation.
violations, i.e., repair costs.
Second, the mattress and/or the
See Mladenov, 124 F. Supp. 3d at 375.
not sufficiently alleged either type of loss.
First, there is no
allegation that Plaintiff paid any money to resolve the unspecified
problems with his mattress, such as incurring repair costs.
has Plaintiff alleged that he will incur such costs in the future.
Simply alleging that Plaintiff was experiencing issues with his
mattress is not sufficient; that loss must be cognizable and
As pled currently, it is purely speculative as to
Plaintiff’s loss in this specific context.
Next, Plaintiff argues that the respective purchase price of
the mattress and the Protection Plan constitutes loss because he
paid for two products that are essentially “worthless.”
Plaintiff’s argument aside, he has not sufficiently alleged that
either the mattress or the Protection Plan is totally worthless.
As to the mattress, Plaintiff does not identify the problems that
he was experiencing with his five-year old mattress, and therefore,
it is difficult to discern whether the mattress was in fact
worthless at the time the Complaint was filed.
Plaintiff does not explicitly allege that his mattress is unusable.
Indeed, Plaintiff alleges that he had used his mattress for at
least five years without experiencing any issues.
Plaintiff alleges that he failed to derive any value from the
Protection Plan because Defendant refused to provide coverage to
repair or replace his mattress, Plaintiff fails to identify the
defect of the mattress.
This is critical, because to determine
whether Plaintiff has a cognizable loss, he must explain that the
In addition, Plaintiff has not alleged that the
Plan itself would have provided no coverage at all — under any
Plaintiff has failed to properly allege that the mattress or the
Protection Plan is totally worthless. 4
Plaintiff alternatively argues that even if “the price paid
for the service contract and the cost of repairs . . . fails to
nonetheless entitles him to a statutory refund as part of his
That argument was rejected by the Supreme Court of
New Jersey in Weinberg v. Sprint Corp., 173 N.J. 233, 249-50
(2002). The Court held that the NJCFA permits consumers to recover
Plaintiff relies on Lee v. Carter-Reed Co., 203 N.J. 496
(2010) and Bosland v. Warnock Dodge, Inc., 197 N.J. 543 (2009),
for the remarkable proposition that the mere purchase price of a
product or service can constitute ascertainable loss, without
alleging actual loss.
Neither case expressed such a view.
Lee, the Supreme Court explicitly defined the types of loss
necessary to support an out-of-pocket expense and the replacement
cost of a defective product. Lee, 203 N.J. at 522. Similarly, in
Bosland, the Court discussed generally the definition of
ascertainable loss under the NJCFA, and the level of certainty
necessary for a plaintiff to have sustained such a loss. Bosland,
197 N.J. at 558-59.
“refunds for losses caused by violations of the Act,” but “only
for victims of consumer fraud who have suffered an ascertainable
The Court explained:
The express language of the statute requires a private
party to have a claim that he or she has suffered an
ascertainable loss of money or property in order to bring
a cause of action under the Act. In effect, the Act
permits only the Attorney General to bring actions for
purely injunctive relief. This Court has considered the
statutory language and has held that, in contrast to the
Attorney General, a private plaintiff must have an
ascertainable loss in order to bring an action under the
Id. at 250.
Hence, Plaintiff may not rely on the demand of a
refund to meet his ascertainable loss pleading obligation.
Finally, Defendant argues that Plaintiff has not established
the third prong of a NJCFA claim — i.e. a causal relationship
between the alleged unlawful conduct and Plaintiff's ascertainable
loss. Indeed, it is well-established that “[c]ausation under the
[NJCFA] is not the equivalent of reliance.” Lee, 203 N.J. at 522;
see also Int'l Union of Operating Engineers Local No. 68 Welfare
Fund v. Merck & Co., Inc., 192 N.J. 372 (2007) (holding that the
traditional to any fraud claim, with the requirement that plaintiff
prove an ascertainable loss.”) To make a showing of causation, “a
consumer merely needs to demonstrate that he or she suffered an
ascertainable loss ‘as a result of’ the unlawful practice.” Id.
However, the plaintiff must plead facts establishing a causal nexus
unlawful conduct and plaintiff’s ascertainable loss.
words, the pleadings must demonstrate how the alleged wrongdoing
had any bearing on plaintiff’s decision to purchase the product or
See Thiedemann, 183 N.J. at 246.
Here, Plaintiff has failed to properly allege causation.
to this element, Plaintiff simply alleges that he paid “sums out
of pocket that [he] would not have paid but for defendant(s)’
fraudulent conduct” and that he was “induced to purchase the
service contract with misrepresentations.”
and conclusory allegations.
These are generalized
What Plaintiff fails to allege are
the particulars as to how his loss can be attributable to the
alleged unlawful conduct.
For example, Plaintiff does not allege
While Plaintiff, in a broad-brush fashion,
alleges that he would not have purchased the Protection Plan but
for R&F’s misrepresentation regarding the terms of the Plan,
Plaintiff has not alleged the terms of the Plan and how the alleged
misrepresentations are inconsistent with those terms.
Plaintiff alleged the role that the purported misrepresentations
played in his purchase decisions. These facts are important because
they demonstrate — with the requisite particularity — how Plaintiff
was induced by R&F to purchase the Protection Plan.
In sum, because Plaintiff has failed to allege all three
required elements of a NJCFA claim, Count Three of his Complaint
is dismissed without prejudice.
Breach of Contract/Warranty
Count Four of the Complaint asserts a claim for breach of
Defendant argues that Plaintiff has not sufficiently
alleged the elements of such a claim.
Express warranties in New Jersey are “governed by Article 2
of the state's Uniform Commercial Code.” Henderson v. Volvo Cars
of North America, LLC, No. 09-4146, 2010 U.S. Dist. LEXIS 73624,
at * 7 (D.N.J. Jul. 21, 2010) (citing N.J.S.A. 12A:2-101, et seq.).
Section 12A:2-313 provides, in pertinent part:
Express warranties by the seller are created as
Any affirmation of fact or promise made by the
seller to the buyer which relates to the goods
and becomes part of the basis of the bargain
creates an express warranty that the goods
shall conform to the affirmation or promise.
Any description of the goods which is made
part of the basis of the bargain creates an
express warranty that the goods shall conform
to the description.
To adequately plead a breach of express warranty claim under
New Jersey law a plaintiff “must allege (1) a contract between the
therefrom; and (4) that the party stating the claim performed its
own contractual obligations.” Cooper v. Samsung Elecs. Am., Inc.,
374 Fed. Appx. 250, 253 (3d Cir. 2010) (quotations and citations
Here, to satisfy the above pleading requirements, Plaintiff
alleges that a salesperson informed him that the Protection Plan
deformities for a period of 10 years with ‘no questions asked’ by
According to Plaintiff, when his mattress had an
unspecified problem, R&F declined to provide coverage under the
However, those allegations are not sufficient to allege an
express warranty claim.
For one, the Complaint does not allege
what document or writing contained the warranty, and the purported
terms of the warranty.
Relatedly, as discussed earlier, Plaintiff
does not identify the issues that he experienced with his mattress,
and therefore, while Plaintiff alleges that R&F did not perform
Defendant breached the warranty without alleging whether Defendant
was obligated under the Plan to act.
In other words, Plaintiff
has failed to allege which terms R&F allegedly breached, and how
R&F’s acts or failure to act breached those terms.
allegations, Plaintiff has not allege all of the elements required
under a breach of warranty claim.
Accordingly, Count Four of the
Complaint is dismissed without prejudice.
For the foregoing reasons, Defendant’s motion to dismiss is
Counts One and Two are dismissed.
Plaintiff is given
leave to amend his Complaint as to Counts Three and Four, within
30 days from the date of the Order accompanying this Opinion.
appropriate Order shall issue.
November 30, 2016
/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. District Judge
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