On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3926-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and LeWinn.
Plaintiff, Harold Hoffman, appeals from the July 17, 2009 order of the trial court dismissing his complaint against defendant, Macy's, Inc., for failure to state a claim pursuant to Rule 4:6-2(e). We affirm.
We summarize the operative facts from plaintiff's complaint. Macy's owns and operates a Bloomingdale's department store in Hackensack. On or about April 18, 2009, Bloomingdale's advertised a one-day special sale "at which it purportedly offered various wares to its... customers at spectacular savings...." Specifically, in plaintiff's words, the store "promised... that various wares could be purchased at a price below the 'regular price'... and below the 'previous sale price' for the said relevant items. [Bloomingdale's] explained... that the term 'previous sale price' was intended to identify the Manufacturer's Suggested Retail Price ("MSRP") for the item in question."
In reliance on this advertisement, plaintiff purchased a Nespresso model D290 automatic espresso machine for $299.99, which he was told "verbally and in writing... [was] a price point well below its 'regular price' of $625.00... and well below its... MSRP of $499.99." Plaintiff claimed that Bloomingdale's "had never previously sold" this machine "at a $625.00 price point.... Further, the MSRP... was well below the $499.99 represented by [Bloomingdale's]."
Plaintiff's complaint sought certification as a class action, and asserted the following damages:
Plaintiff and members of the class suffered ascertainable loss in the form of actual out of pocket loss as a result of defendants' [sic] unlawful conduct as aforesaid: the fabrication of false and misleading pricing information allocable to the items being offered for sale at the Bloomingdale's [one-day] [s]ale. Plaintiff and members of the class suffered a further element of ascertainable loss in that they, as consumers, received less than what was promised by defendant, i.e., various wares at a highly discounted price. Thus, the plaintiff and members of the class were injured and suffered ascertainable loss.
Plaintiff asserted five claims under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA), and one claim of common law fraud.
In granting defendant's motion to dismiss, the trial judge first found that the complaint "d[id] not clearly set forth an 'unconscionable business practice.'" The judge determined that plaintiff had failed to "illustrate how the alleged misrepresentation of price violates the Consumer Fraud Act[,]... [or] how he, or other members of the putative class, were affected by the alleged misrepresentation." Plaintiff's general statement that defendant "'lied' and 'lured consumers into snapping up special values[,]' without providing further clarification[,]... [did not explain] how the misrepresentation 'victimized' him or the putative class."
Additionally, the judge determined that plaintiff had failed to "show 'ascertainable loss.'" Because plaintiff did not allege the espresso coffeemaker was in some way defective and, therefore, did not function properly, the judge found that plaintiff had no claim for his "out of pocket" expenses as the measure of loss. Nor did plaintiff "factually illustrate" his claim that "he suffered an 'ascertainable loss' because he received 'less than promised'...."
Finally, the judge dismissed plaintiff's common law fraud count because he found that it was not pled with the degree of specificity required by Rule 4:5-8(a),*fn1 and plaintiff had failed to "provide any damages he suffered as a result of [d]efendant's alleged fraud."
On appeal, plaintiff contends that the dismissal of his complaint under Rule 4:6-2(e) was in error because (1) the judge failed to accord him the benefit of every reasonable inference in weighing the claims; and (2) the complaint states causes of action under both the CFA and common law fraud. We disagree and affirm substantially for the reasons in the trial judge's decision relating to plaintiff's failure to demonstrate an ascertainable loss, a ...