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Doherty v. Hertz Corp.

November 24, 2010


The opinion of the court was delivered by: Hillman, District Judge.

This matter comes before the Court by way of the motion filed by defendants, The Hertz Corporation, American Traffic Solutions, Inc. and PlatePass, LLC seeking to dismiss the amended complaint of plaintiff, Susan Doherty. For the reasons expressed below, defendants' motion will be denied in its entirety.


This Court has original jurisdiction over this action under 28 U.S.C. §§ 1332(d)(2), (5), and (6), which provide such jurisdiction over class actions in which the amount in controversy exceeds $5,000,000, the proposed class of plaintiffs includes at least 100 members,*fn1 and any member of the alleged plaintiff class is a citizen of a State different from any defendant.

Doherty is a citizen of the State of New Jersey. American Traffic Solutions, Inc. is a Kansas corporation with its principal place of business in Scottsdale, Arizona. The amount in controversy is in excess of $5,000,000.


To begin, an introduction of the relevant parties is beneficial. Defendants are The Hertz Corporation, American Traffic Solutions, Inc., and PlatePass, LLC. The Hertz Corporation ("Hertz") is a corporation engaged in the business of renting cars. American Traffic Solutions, Inc. ("ATS"), is a corporation engaged in the business of implementing and maintaining cameras and electronic toll enforcement programs on roads and highways throughout the country. PlatePass, LLC ("PlatePass") is a corporate subsidiary and/or registered trademark of ATS that provides an electronic toll payment service that enables rental car customers to use the high-speed, cashless electronic toll lanes on roads and highways.

Plaintiff, Susan Doherty,*fn3 rented a vehicle from Hertz after she was involved in a traffic accident on September 23, 2009 and left without her own car. To effectuate the rental, Doherty entered into a written rental contract with Hertz. She signed three documents that comprised the rental agreement. First, she signed a document entitled "Terms and Conditions," which provided, among other things, that Doherty may be billed for tolls she incurred while using the rental vehicle and any administrative fees related to the cost of collection. Second, she signed a document entitled "Rental Record," which, like the Terms and Conditions, authorized the disclosure of Doherty's billing information to ATS for toll collection purposes. Finally, Doherty signed documentation concerning the condition of the vehicle. According to Doherty, the Terms and Conditions provided that only the documents signed by Doherty constituted the agreement for the rental of the vehicle. None of these three signed documents ever mentioned PlatePass, automatic or electronic toll collection services, or a flat, per diem administrative fee.

About a day after the initial transaction, Doherty exchanged her rental car for another. At that time, a Hertz representative informed Doherty that the terms of her initial agreement would not change and that her rental transactions would be treated as one continuous rental. When Doherty entered the rental vehicle, she noticed a PlatePass transponder device on the windshield with a notice stating that a toll is charged to the credit card used for the car rental. The notice made no mention of administrative fees.

On October 6, 2009, Doherty returned the second car after having used the PlatePass service to pay tolls on nine separate days during her approximate two-week rental period. When she returned her vehicle to Hertz, she received a statement of charges, showing the amount that she had paid for the rental and a number of fees and surcharges. The statement did not set forth any fees related to tolls or toll collection.

Shortly thereafter, Doherty received a bill from PlatePass that represented that she owed a small fee for the cash price of tolls and administrative fees. The invoice also had a notice declaring an administrative fee policy by which the rental car customer would be charged the cash prices for tolls and a $2.50 per diem service fee, with a maximum fee charge of $10 per week. According to the bill, Doherty owed a total amount of $3.25.

While the invoice provided no indication that anything other than the small amount was owed or that Doherty's bank account would be accessed, on October 13, 2009, PlatePass deducted $77.75 directly from Doherty's account without any further notice or authorization. Doherty referenced PlatePass' website and learned that she had been charged $57.75 for tolls at the cash price and $20 in administrative fees. She also discovered that, according to the website and in contradiction to the invoice, the maximum fee that could be charged to Doherty was $10 per month, not per week.

On or around December 10, 2009, Doherty filed a complaint against Hertz, ATS, and PlatePass in the Superior Court of New Jersey. Defendants removed Doherty's action to this Court. Doherty amended her complaint and now alleges breach of contract, unjust enrichment, conversion, consumer fraud, and civil conspiracy against defendants. Among her litany of allegations, Doherty avers that defendants impermissibly charged her the posted cash amount for tolls rather than the less expensive, electronic toll fee that was actually charged. She also alleges that the PlatePass electronic toll services were not adequately disclosed in the parties' agreement, and that defendants impermissibly imposed administrative fees for times and amounts that were never disclosed or were misrepresented.

On or around April 2, 2010, defendants filed a Motion to Dismiss Doherty's amended complaint for failure to state a claim upon which relief may be granted.


A. Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

A district court, in weighing a motion to dismiss, asks "'not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ." (citation omitted)). Under the Twombly/Iqbal standard, the Third Circuit has instructed a two-part analysis. First, a claim's factual and legal elements should be separated; a "district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal, 129 S.Ct. at 1950).

Second, a district court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Iqbal, 129 S.Ct. at 1950). "[A] complaint must do more than allege the plaintiff's entitlement to relief." Id.; see Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("The Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with 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 ...

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