The opinion of the court was delivered by: Simandle, District Judge
This matter comes before the Court upon motion for partial reconsideration by plaintiff Loetta Cannon ("plaintiff"), on behalf of herself and all others similarly situated (collectively "plaintiff class"), of this Court's August 29, 2001 Opinion and Order granting in part and denying in part both parties' cross-motions for summary judgment, and upon plaintiff's motion for appointment of a special master for purposes of individualizing determinations of actual damages under the Truth in Lending Act and ascertainable losses under the New Jersey Consumer Fraud Act ("NJCFA").
Plaintiff seeks reconsideration only to the extent that the Court entered judgment in favor of Defendant and against the entire Plaintiff Class under NJCFA on the issue of damages. (Pl.'s Br. at 2.) Plaintiff contends that the Court overlooked controlling New Jersey case law regarding proof of damages under the NJCFA, and that the Court drew impermissible inferences regarding representative plaintiff Cannon in favor of defendant in granting defendant's motion as to damages under the NJCFA. Plaintiff also seeks appointment of a special master in accordance with Rule 53, Fed. R. Civ. P., for purposes of individualized determinations of actual damages under the Truth in Lending Act and ascertainable losses under the NJCFA, only "[i]n the event that the Court denies the Motion for Reargument and upholds its conclusion that the causation requirement under the [NJCFA] . . . requires a showing of detrimental reliance." (Pl.'s Br. at 1.) For the reasons discussed herein, plaintiff's motion for reconsideration will be granted in part and denied in part, and plaintiffs' motion for appointment of a special master will be dismissed without prejudice.
The present Opinion incorporates the August 29, 2001 Opinion's recitation of the background of this cause of action, in which plaintiff alleges that defendant Cherry Hill Toyota violated the Federal Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., and the New Jersey Consumer Fraud Act ("NJCFA"), N.J.S.A. §§ 56:8-2 et seq. See Cannon v. Cherry Hill Toyota, 161 F. Supp. 2d 362, 375 (D.N.J. 2001). In that Opinion and Order, the Court entered summary judgment against defendant as to Counts One and Two, concluding that defendant's conduct violated TILA and NJCFA as a matter of law and that plaintiff is entitled to receive statutory damages under TILA in a sum to be determined after trial, and granted defendant's motion striking plaintiff's demand for actual damages under TILA and plaintiff's entire demand for damages under NJCFA, leaving statutory damages under TILA and Count Three for trial. *fn1 The parties' cross-motions were otherwise denied.
Plaintiff timely filed the instant motion for reconsideration. Plaintiff seeks reconsideration only to the extent that the Court entered judgment in favor of defendant and against the entire plaintiff class on the issue of damages under the NJCFA. This Court struck plaintiff's claim for damages under NJCFA based on the Peters analysis used in TILA claims in determining whether plaintiff class was entitled to damages under the NJCFA. See Cannon, 161 F. Supp. 2d at 375 (utilizing TILA framework in Peters v. Jim Lupient Oldsmobile, 220 F.3d 915 (8th Cir. 2000)). Peters requires that in order to show a TILA violation, a plaintiff must show: "(1) that she read the TILA disclosure statement; (2) that she understood the charges being disclosed; (3) had the disclosure statement been accurate, she would have sought a lower price; and (4) she would have obtained a lower price." Peters, 220 F.3d at 917. The Court concluded that "plaintiff has failed to adduce any evidence tending to show that she suffered an ascertainable loss as a result of defendant's misrepresentation [by] fail[ing] to marshal . . . facts showing that (1) she would have sought a cheaper warranty, and (2) that she would have succeeded in her quest." Cannon, 161 F. Supp. 2d at 375.
Plaintiff subsequently filed the motion for appointment of a special master, and this Court heard oral argument upon both motions. Upon request, both plaintiff and defendant submitted further briefing on the recent cases of Union Ink Co., Inc. v. AT&T Corp., 352 N.J. Super. 617 (App. Div. 2002), and Weinberg v. Sprint Corp., 173 N.J. 233 (2002). The Court, finding that in its previous Opinion, it erroneously applied the dismissal of plaintiff Cannon's damage claim to the entirety of the class action plaintiffs, concludes that plaintiff's motion for reconsideration will be granted in part, thus defendant's motion for partial summary judgment as to the damage claim under the NJCFA will be denied as to the plaintiff class, and plaintiff class's claim for NJCFA damages will proceed to trial. Plaintiff's motion for reconsideration will be denied in part as to plaintiff Loetta Cannon's NJCFA damage claim, and she is not entitled to recover NJCFA damages as a matter of law. Plaintiff's motion for appointment of a special master pursuant to Rule 53, Fed. R. Civ. P., will be dismissed without prejudice.
I. Plaintiff's Motion for Reconsideration
A. Reconsideration/Reargument Standard
Local Civil Rule 7.1(g) requires that a motion for reargument shall be served within 10 days of the entry of the order or judgment on which reargument is sought. See L. Civ. R. 7.1(g). Such motions should be accompanied by a "brief setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate has overlooked." Id. "A party seeking reconsideration must show more than a disagreement with the court's decision, and `recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.'" Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991) (quotation omitted). As this Court has stated, "motions for reargument succeed only where a `dispositive factual matter or controlling decision of law' was presented to the Court but not considered." Damiano v. Sony Music Entm't, 975 F. Supp. 623, 634 (D.N.J. 1996) (JBS) (quoting Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987)), appeal dismissed, 166 F.3d 1204 (1998). Where no facts or cases were overlooked, such a motion will be denied. Egloff v. N.J. Air Nat'l Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988); Resorts Int'l v. Greate Bay Hotel & Casino, 830 F. Supp. 826, 831 (D.N.J. 1992).
If the record was inadequately developed on a particular issue, the court has discretion to reconsider the matter, Hatco Corp. v. W.R. Grace Corp., 849 F. Supp. 987, 990 (D.N.J. 1994), but not to the extent of considering new evidence that was available but not submitted while the motion was pending. Florham Park Chevron, Inc. v. Chevron, USA, Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). In other words, a "motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised before." Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 856-67 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). As the late Chief Judge Gerry noted, "We are in fact bound not to consider such new materials, lest the strictures of our reconsideration rule erode entirely." Resorts Int'l, 830 F. Supp. at 831 n.3. (emphasis in original). Consequently, only when the matters overlooked might reasonably have resulted in a different conclusion if the court had considered them will the court entertain such a motion. Panna, 760 F. Supp. at 435.
Plaintiff argues that this Court erred in awarding summary judgment to defendant against the entire plaintiff class on the issue of damages under the NJCFA. Plaintiff's reconsideration motion is premised upon the argument that the Court overlooked the concept that liability under the NJCFA does not require the element of reliance, unlike the Truth in Lending Act ("TILA").
The NJCFA, which focuses on commercial deception, provides that: Any 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 . . . may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit. N.J.S.A. 56:8-19.
"[The NJCFA] was designed to prevent deception, fraud or falsity, whether by acts of commission or omission, in connection with the sale and advertisement of merchandise and real estate." Delaney v. Garden State Auto Park, 318 N.J. Super 15, 19 (App. Div.) (citing Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 69 (1985)), certif. denied, 160 N.J. 477 (1999). The NJCFA is liberally construed as remedial legislation in favor of protecting consumers. See Delaney, 318 N.J. Super. at 19-20 (citing Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372, 376-77 (1977)).
New Jersey courts have held that liability attaches upon a finding of a violation under the NJCFA. See Varacallo v. Mass. Mutual Life Ins. Co., 332 N.J. Super. 31, 43, 48-49 (App. Div. 2000) (quoting N.J.S.A. 56:18-9). "To violate the Act, a person must commit an `unlawful practice' as defined in the legislation." Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994) (noting three general categories of unlawful practices: affirmative acts, knowing omissions and regulation violations). Furthermore, the Varacallo court held that "if the plaintiffs establish the core issue of liability, they will be entitled to a presumption of reliance and/or causation." Varacallo, 332 N.J. Super. at 51. This presumption of reliance and causation arises from proof of non-disclosure of a material fact under the NJCFA. Id. at 50-51. This is because the NJCFA, unlike TILA, has adopted the rebuttable presumption that a consumer is presumed to be harmed by the defendant's omission of a material fact; due to the materiality of the omission giving rise to the "unlawful practice" under the NJCFA, it is presumed that the consumer relied upon the omission and was caused to suffer detriment. Id. at 49-51. So strong is this presumption, under the NJCFA, that the Appellate Division held that the lower court erred in denying class certification on the ground that individualized issues of causation and reliance predominated. Id. at 34, 41-52.
In this case, the Court previously held that defendant violated the NJCFA by "failing to state completely the price term of the MBP [mechanical breakdown protection] warranty." Cannon, 161 F. Supp. 2d at 375. Plaintiff class, due to defendant's violation, was therefore entitled to a presumption of causation or reliance. As to whether plaintiff suffered an ascertainable loss, the Court applied the factors for determining damages under the Truth in Lending Act ("TILA"). See id. at 375. The Court stated that
[P]laintiff has failed to adduce any evidence tending to show that she suffered an ascertainable loss as a result of defendant's misrepresentation. As the Court noted in connection with the TILA claim, plaintiff has failed her burden of marshaling facts showing (1) she would have sought a cheaper warranty, and (2) that she would have succeeded in her quest. Id.
This analysis was borrowed from the Eighth Circuit's framework for a plaintiff to prove damages under TILA, which requires: (1) that she read the TILA disclosure statement; (2) that she understood the charges being disclosed; (3) had the disclosure statement been accurate, she would have sought a lower price; and (4) she would have obtained a lower price. See id. at 369 (quoting Peters, 220 F.3d at 917). The Court thus denied plaintiff damages under NJCFA due to her failure to demonstrate the required showing of reliance on defendant's misrepresentation.
Plaintiff first advances the argument that the Court overlooked the case law establishing the nature of the causal link required to recover ascertainable losses, citing to Varacallo, supra, 332 N.J. Super. 31 (App. Div. 2000), and Roberts v. Cowgill, 316 N.J. Super. 33, 40 (App. Div. 1998). This Court notes that its finding of defendant's liability under the NJCFA was not based, correctly, on any showing of reliance. Indeed, the Varacallo case supports that the element of reliance is not required in order to prove a violation under the NJCFA, in contrast to common law fraud:
The Supreme Court has taken pains to point out that this claim is a significant distinction from the requirement of reliance in a common law fraud claim. A defendant who violates the Act because of an unlawful "method, act, or practice" that results from an omission of a material fact with the "intent that others rely upon such concealment, suppression or omission," N.J.S.A. 56:8-2, is "liable for [such] misrepresentations whether `any person has in fact been misled, deceived or damaged thereby.' Id. at 49 (quoting Gennari v. Weichert Co. Realtors, 148 N.J. 582, 607-08 (1997)) (emphasis added); see Gennari, 148 N.J. at 607 ("liability arisi[ing] from the Act . . . does not require proof of reliance").
Plaintiff relies on Cox v. Sears Roebuck, supra, in arguing that the class has adequately met its burden in showing an ascertainable loss under NJCFA. A private plaintiff victimized by an unlawful practice under the NJCFA "is entitled to `threefold the damages sustained' by way of `any ascertainable loss of moneys or property, real or personal." Cox, 132 N.J. at 21 (quoting N.J.S.A. 56:8-19). A plaintiff must demonstrate a causal nexus between the amount of damages and defendant's concealment, suppression, or omission of a material fact that is declared unlawful. See Varacallo, 332 N.J. Super. at 43, 48-49 (quoting N.J.S.A. 56:8-19); see also Roberts, 316 N.J. Super. at 40 (analyzing under N.J.S.A. 56:8-19 whether defendant committed an unlawful practice under the Act and whether plaintiff suffered an ascertainable loss in order for entitlement to treble damages and attorney's fees to attach). Once a causal link is established between plaintiff's ascertainable loss and defendant's consumer fraud, that plaintiff is entitled to treble damages and attorney's fees. See Roberts, 316 N.J. Super. at 40 (quoting Cox, 138 N.J. at 21) ("A private plaintiff victimized by any unlawful practice under the Act is entitled to `threefold the damages sustained' by way of any ascertainable loss of moneys or property, real or personal . . . .").
In Cox, the plaintiff had contracted with defendant Sears for home improvement services to renovate plaintiff's kitchen. The New Jersey Supreme Court stated,
Traditionally, to demonstrate an ascertainable loss, a victim must simply supply an estimate of damages, calculated within a reasonable degree of certainty. The victim is not required actually to spend the money for the ...