On Appeal from the United States District Court for the District of New Jersey District Judge: Honorable Joel A. Pisano (D.C. Civ. No. 02-00028)
Before: Scirica, Greenberg, and Gibson *fn1,
The opinion of the court was delivered by: Greenberg, Circuit Judge
This matter comes on before this court on appeal from an order entered May 23, 2002, granting defendant Ranger Insurance Company's ("Ranger") motion under Fed. R. Civ. P. 12(b)(6) to dismiss this action for failure to state a claim on which relief may be granted. In view of the procedural posture of the case we set forth the facts as alleged by the plaintiff, Lexington National Insurance Corporation ("Lexington"), and decide this appeal on the basis of them. See Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).
Lexington and Ranger are licensed insurance companies which underwrite bail bonds in New Jersey. They conduct their bail bond businesses through contract bail agents who, as between the agents and the companies, bear any losses on bail bonds they issue. In the bail bond business in New Jersey the purchasers of the bonds usually pay a premium of ten per cent of the amount of the bond to the bondsmen who divide the premiums with the companies. The percentage of the premium the bondsmen retain varies but typically they remit 20% of the premium to the company for its share of the premium and 10% of the premium to the company for payment into a reserve fund to secure the company against loss in the event of a forfeiture. N.J. Stat. Ann. § 54:18A-2 (West 2002) imposes a tax of 2.1% on taxable premiums and N.J. Stat. Ann. § 54:18A-4 (West 2002) provides that taxable premiums consist, inter alia, of "gross premiums." Ranger calculates its tax only on the portion of the premium that the bondsmen remit to it but Lexington calculates its tax on the entire premium paid for the bond. By reason of the differential in the tax calculation, Lexington charges that Ranger "has the ability to contract with its contract bail agents at a lower cost than its competitors . . . and has done so." App. at 4. Moreover, Lexington claims that it has lost business to Ranger by reason of Ranger's underpayment of taxes.
Lexington alleges that Ranger's failure to pay the premium tax on gross premiums "is a deceptive and wrongful business practice [which] constitute[s] unfair competition under New Jersey law" causing it injury. Id. It further alleges that Ranger's acts constitute intentional and negligent interference with Lexington's economic relationship with customers and prospective customers and interfere with Lexington's prospective economic advantage. Furthermore, Lexington asserts that by reason of Ranger's method of paying taxes it is "committ[ing] an unconscionable commercial practice, deception, fraud, falsity, or misrepresentation" in violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1 et seq. (West 2001). App. at 7. Accordingly, Lexington seeks compensatory, punitive, and treble damages, attorney's fees, interest, and costs. It also seeks injunctive relief, apparently in the form of an order requiring Ranger to pay its taxes to the State of New Jersey on what Lexington believes is a correct basis.
As we have indicated, Ranger moved to dismiss the complaint pursuant to Rule 12(b)(6). It attached to its motion an affidavit of its vice president responsible for its bail bond business who stated that from the time Ranger became authorized to underwrite bail bonds in New Jersey in the early 1990s it has filed annual tax returns with the State of New Jersey pursuant to N.J. Stat. Ann. 54:18A-1 (West 2002), the state has accepted every tax return as filed, and the New Jersey Director of the Division of Taxation "has never issued any deficiency assessments or penalties against Ranger in connection with any return." App. at 12. In response, Lexington submitted an affidavit to which it attached a letter from its own certified public accountant to an officer or employee of the Office of Financial Examination of the New Jersey Department of Banking and Insurance reading in pertinent part as follows:
I wanted to confirm my understanding of our earlier phone conversations. Based on these conversations, I am confirming that premium taxes on bail premiums must be paid on 'gross premiums' and our interpretations of the New Jersey Taxation statute, Title 54: section 18A-2, et. seq. are correct and that my client has therefore been properly reporting and paying New Jersey premium taxes on this basis. App. at 16.
Without apparent objection of the parties the district court considered these affidavits on the motion to dismiss though it did not convert the motion into a motion for summary judgment pursuant to Rule 12(b), see Rose v. Bartle, 871 F.2d 331, 339-40 (3d Cir. 1989), and thus we will consider them as well.
The district court in granting Ranger's motion to dismiss discussed Lexington's claims seriatim. First, it indicated that New Jersey's common law unfair competition law does not have clear boundaries but is instead flexible and elastic as evolving standards of morality demand and the essence of an unfair competition claim is the enforcement of fair play. See Duffy v. Charles Schwab & Co., 123 F. Supp. 2d 802, 815 (D.N.J. 2000); Ryan v. Carmona Bolen Home for Funerals, 775 A.2d 92, 94 (N.J. Super. Ct. App. Div. 2001). It then pointed out that Lexington did "not assert that Ranger attempted to mislead the public, create confusion in the trade, or misappropriate[ ] Lexington's product." App. at 24. Furthermore, Lexington did not have a property interest in the allegedly withheld tax dollars. Thus, the court concluded that Ranger's failure to pay its taxes "is an issue between Ranger and the State of New Jersey [and] [e]ven if [Lexington] conclusively establishes that Ranger failed to pay its taxes, it would not amount to an unfair competition claim." Id. at 25. Accordingly, it dismissed that claim.
The district court then dismissed Lexington's claims for tortious interference with prospective economic advantage as it did not consider that its complaint adequately pled that there was "a causal connection between Ranger's conduct and [its] loss of . . . business." App. at 28. While it recognized that it was required to accept Lexington's allegations it was not required to accept "bald assertions, subjective characterizations, or legal conclusions." See General Motors Corp. v. The New A.C. Chevrolet, Inc., 263 F.3d 296, 333 (3d Cir. 2001). Finally, it held that the New Jersey Consumer Fraud Act is inapplicable here as this case "does not directly involve any merchandise that is being sold to the public," app. at 31, and thus does not come within the act. See Cox v. Sears Roebuck & Co., 647 A.2d 454, 462 (N.J. 1994); J & R ...