PAGE v. GPB CARS 12, LLC et al

Filing 38

OPINION filed.Signed by Judge Anne E. Thompson on 10/17/2019. (jdb)

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 1 of 15 PageID: 451

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RACHEL A. PAGE, individually and on
behalf of others similarly situated,
Plaintiff,

Civ. No. 19-11513

v.

OPINION

GPB CARS 12, LLC d/b/a NORTH
PLAINFIELD NISSAN, NISSAN
EXTENDED SERVICES NORTH
AMERICA, G.P., and NATION MOTOR
CLUB a/k/a Nation Safe Drivers a/k/a NSD,
Defendants.
THOMPSON, U.S.D.J.
INTRODUCTION
This matter comes before the Court upon three motions to dismiss filed separately by
Defendants GPB Cars 12, LLC d/b/a North Plainfield Nissan (“NP Nissan”), (ECF No. 31,)
Nissan Extended Services North America, G.P. (“NESNA”), (ECF No. 13,) and Nation Motor
Club, LLC a/k/a Nation Safe Drivers a/k/a NSD (“NSD”), (ECF No. 14) (collectively,
“Defendants”). Plaintiff Rachael Page (“Plaintiff”) opposes these motions. (ECF Nos. 27, 28,
36.) The Court has decided the motions based on the written submissions and without oral
argument, pursuant to Local Rule 78.1(b). For the reasons stated herein, Defendant NP Nissan’s
Motion to Dismiss is denied, Defendant NESNA’s Motion to Dismiss is granted, and Defendant
NSD’s Motion to Dismiss is granted.

1

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 2 of 15 PageID: 452

BACKGROUND
I.

Allegations Concerning Purchase of Vehicle and Service Contracts
Plaintiff alleges that in April 2018, she captured a screen shot of an online advertisement

by Defendant NP Nissan that listed the price of a pre-owned Toyota Prius as $16,898.00 without
any disclaimers, qualifiers, or limitations. (Compl. ¶¶ 18–20, Ex. A, ECF No. 1.) When Plaintiff
visited Defendant NP Nissan’s dealership on April 28, 2018, a sales representative told Plaintiff
that she would have to pay an additional $675.76 in non-optional fees and purchase a $3,500.00
Quality Guard Plus Vehicle Service Contract (“VSC”) from Defendant NESNA in order to
obtain financing. (Id. ¶¶ 26–27.) The sales representative also recommended that Plaintiff
purchase the Security Plus Tire & Wheel Protection Plan (“TWPP”) for $1,000 from Defendant
NSD. (Id. ¶ 28.)
Plaintiff signed the Motor Vehicle Retail Order (“Retail Order”) and the Retail
Installment Sale Contract (“RISC”) to purchase the vehicle and obtain financing. (Id. ¶ 29.) The
RISC included the $3,500.00 VSC as part of the “amount financed,” such that Plaintiff was
required to pay interest on this amount. (Id. ¶¶ 36, 59.) Plaintiff contends that the $3,500.00 VSC
was a fee incident to the extension of credit, and therefore the amount should have been part of
the “finance charges,” rather than the “amount financed.” (Id. ¶ 101.)
Both the VSC and TWPP contracts contain cancellation provisions that guarantee a full
refund on the purchase price if the purchaser submits a cancellation request within a specified
period after the date of purchase (sixty days for the VSC, thirty days for the TWPP). (Id. ¶¶ 41–
42, 46.) The contracts require the providers to complete the refund within forty-five days of the
cancellation request, and, if they fail to do so, guarantee a 10% penalty for each thirty-day period
that the refund remains unpaid. (Id.) Plaintiff executed and submitted refund requests for both the

2

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 3 of 15 PageID: 453

VSC and TWPP on May 15, 2018, seventeen days after the date of purchase. (Id. ¶ 53.) She did
not receive the $3,500.00 refund for the VSC until July 31, 2018, during which time she
continued to pay interest on that amount. (Id. ¶ 58–59.) Defendant NESNA did not provide
Plaintiff with the 10% penalty for the delay. (Id. ¶ 149–50.) Plaintiff never received a refund for
the TWPP from Defendant NSD. (Id. ¶ 60.)
II.

Initiation of Arbitration
The Retail Order contains an arbitration agreement (“Arbitration Agreement”), in which

the parties agree to arbitrate all disputes through the American Arbitration Association (“AAA”)
and to waive any complaints on behalf of a class. (Id. Ex. B.) The Arbitration Agreement
provides that Defendant NP Nissan “shall advance both party’s filing, service, administration,
arbitrator, hearing, and other fees, subject to reimbursement by decision of the arbitrator.” (Id.)
Plaintiff alleges that she filed an arbitration demand with the AAA on September 25,
2018 against Defendants and served the demand via certified mail. (Id. ¶ 68.) The demand was
delivered to NP Nissan on September 27, 2018, and to NESNA and NSD on October 1, 2018.
(Id. ¶ 69.) AAA then sent two letters to each Defendant providing notice of the demand and
requesting payment of the fee. (Id. ¶ 70.) NSD and NESNA responded that they were not subject
to the Arbitration Agreement, and Plaintiff dismissed the demand as to NSD. (Id. ¶ 72.) Plaintiff
alleges that her counsel then sent a letter via regular mail and facsimile to NP Nissan’s General
Manager on October 29, 2018. (Id. ¶ 74.) NP Nissan did not respond to Plaintiff’s or the AAA’s
letters, although on November 23, 2018, Plaintiff alleges NP Nissan presented her with a
settlement offer, which she rejected. (Id. ¶ 78.) Defendant NP Nissan contends that it never
received any of these notices, and that the check sent to Plaintiff was not a settlement offer, but
rather the refund owed for the TWPP cancellation. (NP Nissan Reply at 7, ECF No. 37.)

3

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 4 of 15 PageID: 454

On November 28, 2018, AAA informed the parties that it declined to administer the case
due to the failure of Defendant NP Nissan to pay the required arbitration fees, and that the parties
accordingly may submit their dispute to the appropriate court for resolution. (Id. Ex. F.) The
letter also stated: “we may decline to administer future consumer arbitrations involving GPB
Cars 12, LLC d/b/a North Plainfield Nissan . . . We request that the business remove the AAA
name from its consumer arbitration clause so that there is no confusion to the public regarding
our decision.” (Id.)
III.

Procedural History
After the failed arbitration attempt, Plaintiff filed this action on April 26, 2019. Plaintiff

alleges four counts against Defendant NP Nissan: (1) violation of the Truth in Lending Act
(“TILA”), 15 U.S.C. § 1601 et seq., for Defendant’s failure to make accurate disclosures of the
annual percentage rate, finance charge, and amount financed in the RISC (Count 1) (Compl. ¶¶
87–104); (2) violation of the Consumer Fraud Act (“CFA”), N.J.S.A. 56:8–2 et seq., for
Defendant’s inclusion of the service contract fees in the amount financed in the RISC (Count 2)
(Compl. ¶¶ 105–09); (3) violations of the CFA, N.J.S.A. 56:8–4, and Motor Vehicle Advertising
Practices regulations (“MVAP”), N.J.A.C. 13:45A–26A.4, for Defendant’s refusal to sell or lease
the advertised vehicle at the price set forth in the online advertisement (Count 3) (Compl. ¶¶
111–24); and (4) violations of the Truth-in-Consumer Contract, Warranty and Notice Act
(“TCCWNA”), N.J.S.A. 56:12–14 to –18, based on the violations of the TILA, CFA, and MVAP
(Count 4) (Compl. ¶¶ 125–36). Plaintiff also alleges that Defendant NESNA violated the
Consumer Service Contract Act (“CSCA”), N.J.S.A. 56:12–93(k), (Count 5) and CFA, N.J.S.A.
56:8–2, (Count 6) due to its failure to pay the 10% penalty due under the VSC for the delay in
refunding Plaintiff. (Compl. ¶¶ 137–59.) Defendant further alleges violations of the CSCA,

4

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 5 of 15 PageID: 455

N.J.S.A. 56:12–93(k) (Count 7) and CFA, N.J.S.A. 56:8–2, (Count 8) by Defendant NSD for
failing to provide the refund due under the TWPP. (Id. ¶¶ 160–74.) Plaintiff brings this lawsuit as
a class action. (Id. ¶¶ 80–86.)
On July 16, 2019, Defendant NESNA and Defendant NSD filed separate motions to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (NESNA Mot., ECF
No. 13; NSD Mot., ECF No. 14.) On September 5, 2019, Defendant NP Nissan filed its Motion
to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, seeking dismissal
and referral to arbitration based on the Arbitration Agreement. (NP Nissan Mot., ECF No. 31.)
These motions are currently before the Court.
LEGAL STANDARDS
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the
sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant
bears the burden of showing that no claim has been presented. Hedges v. United States, 404 F.3d
744, 750 (3d Cir. 2005). When considering a Rule 12(b)(6) motion, a district court should
conduct a three-part analysis. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the
court must ‘take note of the elements a plaintiff must plead to state a claim.’” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must “review[] the complaint to
strike conclusory allegations.” Id.; see also Iqbal, 556 U.S. at 679. Finally, the court must
assume the veracity of all well-pleaded factual allegations and “determine whether the facts are
sufficient to show that plaintiff has a ‘plausible claim for relief.’” Fowler v. UPMC Shadyside,
578 F.3d 203, 210–11 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679); see also Malleus, 641
F.3d at 563. If the complaint does not demonstrate more than a “mere possibility of misconduct,”
it must be dismissed. See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.

5

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 6 of 15 PageID: 456

2009) (quoting Iqbal, 556 U.S. at 679).
Although a district court generally must confine its review on a Rule 12(b)(6) motion to
the pleadings, see Fed. R. Civ. P. 12(d), “a court may consider certain narrowly defined types of
material” beyond the pleadings, In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287
(3d Cir. 1999), including matters incorporated by reference or integral to the claim, items subject
to judicial notice, matters of public record, orders, and items appearing in the record of the case.
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (internal citation omitted).
ANALYSIS
I.

Arbitration Agreement
Defendant NP Nissan does not contest the allegations in the Complaint, but rather argues

that the claims must be dismissed and referred to arbitration due to the existence of a valid and
enforceable Arbitration Agreement. (NP Nissan Mot. at 7–11.) Parties agree that the Arbitration
Agreement was a validly formed contract, and that Plaintiff’s claims fall within the scope of that
contract. Plaintiff, however, argues that Defendant NP Nissan has waived its right to enforce the
arbitration agreement due to its failure to pay the arbitration fee after Plaintiff initiated the
arbitration proceedings, as required under the Arbitration Agreement. (Opp’n to NP Nissan at 7–
18, ECF No. 36.) Such a failure, Plaintiff contends, is both a default under the Federal
Arbitration Act (“FAA”), 9 U.S.C. § 3, and a material breach of the contract. (Id.)
Section 3 of the FAA requires courts to stay a case if the suit is referable to arbitration,
“provid[ed] the applicant for the stay is not in default in proceeding with such arbitration.” 9
U.S.C. § 3. Other circuits have found that a party’s failure to pay the required arbitration fee is a
default, barring that party’s right to seek arbitration. See, e.g., Pre-Paid Legal Services, Inc. v.
Cahill, 786 F.3d 1287, 1294 (10th Cir. 2015) (“Failure to pay arbitration fees constitutes a

6

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 7 of 15 PageID: 457

‘default’ under § 3.”); Sink v. Aden Enterprises, Inc., 352 F.3d 1197 (9th Cir. 2003) (waiving
defendant’s right to arbitrate after defendant failed to pay the arbitration fees). Although
Defendant NP Nissan seeks a dismissal of the case and referral to arbitration (presumably under
Section 4 of the FAA), rather than a stay under Section 3, a default under Section 3 will similarly
prevent the Court from granting such a dismissal and referral to arbitration. See Stowell v. Toll
Bros., 2007 WL 30316, at *1 (E.D. Pa. Jan. 4, 2007) (“The court… concludes that since
Defendant's default in the arbitration proceeding by failing to file the required fee would
preclude the court from staying proceedings under Section 3 [of the FAA], that Section 4 cannot
require the court to compel arbitration.”).
The FAA also provides that arbitration agreements may be found unenforceable “upon
such grounds as exist at law or in equity for the revocation of any contract.” AT&T Mobility LLC
v. Concepcion, 563 U.S. 333, 339 (2011) (citing 9 U.S.C. § 2). The New Jersey Supreme Court
has held that a party’s “failure to advance required fees that results in the dismissal of the
arbitration claim . . . amounts to a material breach,” relieving the non-breaching party of its
obligations under the arbitration agreement. Roach v. BM Motoring, LLC, 155 A.3d 985, 995
(N.J. 2017). Analyzing the considerations for material breach under the Restatement (Second) of
Contracts § 241 (1981), the Court found that the failure to pay the fee deprived the nonbreaching party of the benefit of the agreement and violated the duty of good faith and fair
dealing. 1 Id. As a matter of policy, the Court reasoned that “without a finding of material breach,

1

To determine if a breach is material, the Restatement (Second) of Contracts requires
consideration of: “(a) the extent to which the injured party will be deprived of the benefit which
he reasonably expected; (b) the extent to which the injured party can be adequately compensated
for the part of that benefit of which he will be deprived; (c) the extent to which the party failing
to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to
perform or to offer to perform will cure his failure, taking account of all the circumstances
including any reasonable assurances; [and] (e) the extent to which the behavior of the party
7

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 8 of 15 PageID: 458

the result would be a ‘perverse incentive scheme’—a company could ignore an arbitration
demand and, if the claimant did not abandon the claim, later compel arbitration.” Id. at 181
(quoting Brown v. Dillard’s, Inc., 430 F.3d 1004, 1012 (9th Cir. 2005)).
Defendant NP Nissan does not dispute that a party’s intentional refusal to pay a required
arbitration fee is a default or material breach, but rather argues that this case is distinguishable
from those cited above because Defendant NP Nissan was unaware of Plaintiff’s initiation of the
arbitration proceedings. (NP Nissan Reply at 6.) Defendant NP Nissan maintains that it never
received the arbitration demand or the numerous letters sent by Plaintiff and the AAA, either
because they were not sent to Defendant NP Nissan’s official service address or because of a
“clerical error on the mail intake employee” at the dealership address. (Id. at 1.) For this reason,
Defendant NP Nissan contends that it did not act in bad faith, and the Arbitration Agreement is
still valid. (Id. at 8–9.) Plaintiff, meanwhile, alleges that she sent at least two letters, and the
AAA sent at least three letters, to Defendant NP Nissan notifying it of the initiation of arbitration
proceedings and requesting payment of the fee. (Compl. ¶¶ 68–78.) These letters were sent to
Defendant NP Nissan’s dealership, which Defendant NP Nissan claims is not its proper service
address. (See NP Nissan Mot. at 6.) Taking into consideration the New Jersey Business Gateway
attached to Plaintiff’s Opposition, it appears that the dealership address is indeed the “Main
Business Address” of NP Nissan, although it is not the “Agent/SOP Address.” (Opp’n to NP
Nissan, Ex. A.)
Even if the letters were not sent to Defendant’s official service address, the service rules
under the AAA Consumer Arbitration Rules are fairly broad, permitting service “on a party by
mail or email addressed to the party or its representative at the last-known address or by personal

failing to perform or to offer to perform comports with standards of good faith and fair dealing.”
Restatement (Second) of Contracts § 241 (1981).
8

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 9 of 15 PageID: 459

service . . . provided that reasonable opportunity to be heard with regard to the dispute is or has
been granted to the party.” Am. Arbitration Ass’n, Consumer Arbitration Rules R-52(a) (Sept. 1,
2014). Plaintiff and the AAA sent notice to Defendant NP Nissan at its main business address,
and there is a notice of receipt of at least one of those letters. (Compl. ¶¶ 68–69.) Taking all facts
in the Complaint as true, the Court cannot at this stage find that the service on Defendant NP
Nissan at its main business address was improper. Furthermore, Defendant NP Nissan’s
suggestion that a clerical error caused five letters—mailed on separate dates from separate
senders—to all go missing is unpersuasive.
For the reasons stated above, Defendant NP Nissan’s Motion to Dismiss the suit and refer
the case to arbitration is denied. Since NP Nissan did not contest the claims against it, those
claims (Counts 1–4) can proceed.
II.

Consumer Service Contract Act Claims Against Defendant NESNA and Defendant
NSD
Plaintiff brings claims against Defendant NESNA and Defendant NSD for violations of

the CSCA, N.J.S.A. 56:12–93(k) (Counts 5 and 7). Defendant NESNA and Defendant NSD
argue that the CSCA does not create a private right of action, as evidenced by the statute’s
explicit enforcement provision that gives enforcement power to the Director of the Division of
Consumer Affairs and provides that violations of the CSCA are actionable under the CFA.
N.J.S.A. 56:12–96. (NESNA Mot. at 9–11, ECF No. 13; NSD Mot. at 5–6, ECF No. 14.) For
support, Defendants rely on Woturski v. Fed. Warranty Serv. Corp., 2018 WL 1399303, at *1
(D.N.J. Mar. 19, 2018), which states in passing that “there is apparently no private right of action
under the [C]SCA.” (NESNA Mot. at 9; NSD Mot. at 5.) Defendants also contend that New
Jersey courts disfavor “infer[ring] a statutory private right of action where the Legislature has not
expressly provided for such action.” R.J. Gaydos Ins. Agency, Inc. v. Nat’l Consumer Ins. Co.,
9

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 10 of 15 PageID: 460

773 A.2d 1132, 1142 (N.J. 2001). (NESNA Mot. at 9; NSD Mot. at 6.) In response, Plaintiff
seemingly alters her claim to instead seek a declaratory judgment that Defendants violated the
CSCA pursuant to the Declaratory Judgment Act, N.J.S.A. 2A:16–53. (Opp’n to NESNA at 18–
19, ECF No. 28; Opp’n to NSD at 19, ECF No. 27.)
Although the CSCA on its face does not appear to create a private right of action, the
Court need not resolve this question because it is clear that neither Defendant NESNA nor
Defendant NSD violated Section 93(k) of the CSCA, which mandates: “A service contract…
shall contain the requirements set forth in this section, as applicable:
(k) the conditions governing the cancellation of the service contract by the service
contract holder, which shall:
(1) permit the contract holder, if the contract holder makes no claim arising under
the contract, to cancel the contract:
(a) within 10 days of receipt of the contract, or a longer period specified in the
contract, if delivered at the time of purchase; or
(b) within 20 days of the date the contract was sent to the contract holder, or a
longer period specified in the contract, if not delivered at the time of purchase;
and
(2) if cancelled within the time period specified in subparagraph (a) or (b) of
paragraph (1) of this subsection, require the provider to provide the contract
holder with the full purchase price or amount paid on the contract by refund or
credit to the account of the contract holder, and to additionally pay the contract
holder a 10% per month penalty, based upon the purchase price of the contract, if
the refund or credit is not completed within 45 days of the cancellation of the
contract.
N.J.S.A. 56:12–93(k) (emphasis added). This section clearly regulates the content of service
contract provisions, rather than the performance of such provisions. Plaintiff’s claims are not
based on the contents of the VSC or TWPP, but rather Defendants’ non-performance of these
contracts.

10

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 11 of 15 PageID: 461

The language in the VSC and TWPP contracts clearly abides by the requirements set
forth in the CSCA. The VSC, which constitutes a service contract under the CSCA, allows a full
refund if cancelled within sixty days from the contract’s effective date, and provides that
NESNA will pay a 10%-per-month penalty if the refund or credit is not completed within fortyfive days of the cancellation date. (Compl., Ex. C.) Similarly, the TWPP, which also constitutes a
service contract, allows for a full refund if cancelled within thirty days from the date of purchase
(which appears to be the effective date), and a 10%-per-month penalty if the refund is not
completed within forty-five days of the cancellation. (Compl., Ex. D.) For these reasons, Counts
5 and 7 of the Complaint are dismissed.
III.

Consumer Fraud Act Claims Against Defendant NESNA and Defendant NSD
Plaintiff claims Defendant NESNA and Defendant NSD violated the Consumer Fraud

Act (“CFA”) based on 1) Defendant NESNA’s failure to pay the 10%-per-month penalty on the
VSC refund, and 2) Defendant NSD’s failure to provide the refund for the TWPP. (Compl. ¶¶
152–59, 168–74.) Section 2 of the CFA prohibits
any unconscionable commercial practice, deception, fraud, false pretense, false
promise, misrepresentation, or the knowing concealment, suppression, or
omission of any material fact with intent that others rely upon such concealment,
suppression, or omission, in connection with the sale or advertisement of any
merchandise or real estate . . . .
N.J.S.A. 56:8–2. “Merchandise” is defined broadly to include “goods, commodities, services or
anything offered directly or indirectly to the public for sale.” N.J.S.A. 56:8–1. A party who
suffers an “ascertainable loss” from a violation of the CFA may recover treble damages, costs,
and attorneys’ fees. N.J.S.A. 56:8–19.
A CFA claim requires showing (1) unlawful conduct, (2) an ascertainable loss, and (3) a
causal relationship between the conduct and the loss. Int’l Union of Operating Eng’rs Local No.
68 Welfare Fund v. Merck & Co., 929 A.2d 1076, 1086 (N.J. 2007) (internal citation omitted).
11

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 12 of 15 PageID: 462

Unlawful conduct may consist of an affirmative act, an omission, or a regulatory violation. Cox
v. Sears Roebuck & Co., 567 A.2d 454, 462 (N.J. 1994). For affirmative acts, a plaintiff need not
show intent to commit the unlawful act, whereas for omissions, a plaintiff must show the
defendant acted with knowledge or intent. See id. Despite the CFA’s broad language,
“reasonable limits must be placed upon the operation of the Act in order that its enforcement will
properly reflect legislative intent.” Barry by Ross v. N.J. State Highway Auth., 585 A.2d 420, 423
(N.J. Super. Ct. Ch. Div. 1990).
Plaintiff attempts to characterize the alleged unlawful conduct of Defendant NESNA and
Defendant NSD as “false promises” or “unconscionable commercial practices.” (Opp’n to NSD
at 13; Opp’n to NESNA at 13.) First, Plaintiff argues that the cancellation provisions in the VSC
and TWPP constituted affirmative representations of Defendants’ future performance, which
became false promises upon their failure to fully refund Plaintiff. (Id.) Second, Plaintiff claims
that the withholding of the required penalty by Defendant NESNA, and the failure to pay the
refund by Defendant NSD, constituted unconscionable commercial practices because they lacked
good faith and fair dealing. 2 (Id.)
A.

False Promise

Mere failure to perform on a contract cannot constitute a false promise actionable under
the CFA, unless the promisor knew at the time the contract was formed that he did not intend to
fulfill the promise. See Barry, 585 A.2d at 423–24; see also Mullin v. Auto. Prot. Corp., 2008
WL 4509612, at *2–3 (D.N.J. Sept. 29, 2008) (requiring evidence that defendant “never intended
to fulfill its obligations under the contract” for a breach of contract to constitute a fraudulent
2

Plaintiff also argues that Defendant NSD and Defendant NESNA’s actions were
unconscionable commercial practices because they violated the CSCA. (Id.) Since this Court has
found no basis for Plaintiff’s CSCA claims, this cannot be a basis for finding a violation under
the CFA.
12

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 13 of 15 PageID: 463

misrepresentation under the CFA). As explained in Barry, a finding to the contrary would
convert every breach of contract action into a violation of the CFA. 585 A.2d at 423–24; see also
Hunt Constr. Grp., Inc. v. Hun Sch. of Princeton, 2009 WL 1312591, at *4 (D.N.J. May 11,
2009) (rejecting a claim that a party’s failure to fully perform under a contract turned said
contract provision into an affirmative misrepresentation).
Plaintiff has not alleged any facts to suggest that either Defendant NESNA or Defendant
NSD entered into the contracts with Plaintiff with an intent to breach the cancellation provisions
within those contracts. Thus, Plaintiff cannot characterize the contracts at issue as false promises
or misrepresentations actionable under the CFA.
B.

Unconscionable Commercial Practice

The New Jersey Supreme Court has held that although “unconscionable commercial
practice” implies conduct that lacks good faith and fair dealing, “a breach of warranty, or any
breach of contract, is not per se unfair or unconscionable . . . and . . . alone does not violate a
consumer protection statute.” Cox, 647 A.2d at 462 (internal citations omitted). Instead, there
must be “substantial aggravating circumstances” in addition to the breach. Id.; see also Suber v.
Chrysler Corp., 104 F.3d 578, 587 (3d Cir. 1997). To meet this standard, a plaintiff must
demonstrate that the business behavior in question “stand[s] outside the norm of reasonable
business practice in that it will victimize the average consumer.” Turf Lawnmower Repair, Inc. v.
Bergen Record Corp., 655 A.2d 417, 430 (N.J. 1995) (finding substantial aggravating factors
where a lawnmower repair shop recommended unnecessary services such as the rebuilding of a
carburetor that was in good condition and the installation of parts in a machine that were not
needed). A finding of substantial aggravating factors often turns on a defendant’s intent to
deceive. See, e.g., Venditto v. Vivint, Inc., 2015 WL 926203, at *14 (D.N.J. Mar. 2, 2015)

13

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 14 of 15 PageID: 464

(finding no aggravating factors where defendant renewed plaintiff’s contract after plaintiff
verbally agreed to a renewal, even though the contract required changes to be made by written
agreement, because there was no “inference of a practice of deception”); see also Alin v. Am.
Honda Motor Co., Inc., 2010 WL 1372308, at *9 (D.N.J. 2010) (finding substantial aggravating
factors where defendant “affirmatively acted in concealing a flaw in its vehicles” and
“implemented its warranty policy with the intent that it would not honor it . . . .”).
Plaintiff argues that substantial aggravating factors exist here. First, Plaintiff contends
that the TWPP contract places the Administrator’s name in an inconspicuous place, encouraging
customers to cancel through the “Selling Dealer” and thereby creating an extra step for
customers that may lead to delays in the cancellation process. (Opp’n to NSD at 15.) Similarly,
Plaintiff claims the VSC’s explicit requirement that customers cancel the contract through the
dealership rather than the provider constitutes an aggravating factor. (Opp’n to NESNA at 14–
15.) As an additional aggravating factor, Plaintiff argues that Defendant NESNA knew about her
cancellation request—since it credited $3500.00 to her account—but still failed to pay the late
fee. (Id.)
Plaintiff’s claim that the TWPP hides the Administrator’s name is unfounded. 3
Regardless, Plaintiff fails to make any showing that requiring a service contract to be canceled
through the dealership where the service was originally purchased is a substantial aggravating
factor outside the norm of reasonable business practice. Additionally, the fact that Defendant
NESNA knew about Plaintiff’s cancellation does not make its failure to pay the late fee a

3

The cancellation provision of the TWPP, a three-page contract, states: “To initiate the
cancellation process, You must contact the Selling Dealer or the Administrator.” (Compl., Ex.
D.) On that same page, a few sections below, there is a heading in all-caps, bolded and
underlined, titled “ADMINSTIRATOR” that clearly provides the Administrator’s contact
information. (Id.) This can hardly be considered an attempt to hide the Administrator’s identity.
14

Case 3:19-cv-11513-AET-TJB Document 38 Filed 10/17/19 Page 15 of 15 PageID: 465

“substantial aggravating circumstance.” Instead, as Defendant NESNA correctly notes, these
facts merely support a routine breach of contract action. (See NESNA Reply at 8, ECF No. 33.)
Since Plaintiff has not plead any substantial aggravating factors, Defendant NESNA and
Defendant NSD’s alleged breaches of their cancellation provisions were not “unconscionable
commercial practices” under the CFA.
Since there has been no unlawful practice within the meaning of the CFA, the Court will
not assess whether there are ascertainable damages or a causal relationship. Plaintiff’s allegations
against Defendant NESNA and Defendant NSD for violations of the CFA are dismissed.
IV.

Leave to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure allows amendments of the

pleadings with the court’s leave, which should be freely given. Alvin v. Suzuki, 227 F.3d 107,
121 (3d Cir. 2000). Plaintiffs are granted leave to file an amended complaint, in accordance with
Local Civil Rule 15.1(b).
CONCLUSION
For the foregoing reasons, Defendant NP Nissan’s Motion to Dismiss is denied,
Defendant NESNA’s Motion to Dismiss is granted, and Defendant NSD’s Motion to Dismiss is
granted. An appropriate order will follow.

Date: October 17, 2019
/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

15