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Debra Dugan, On Behalf of Herself and All Others Similarly Situated v. Tgi Friday's

October 25, 2011

DEBRA DUGAN, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-RESPONDENT,
v.
TGI FRIDAY'S, INC, CARLSON RESTAURANTS WORLDWIDE, INC., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0126-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 28, 2011

Before Judges Fuentes, Graves, and J. N. Harris.

This is a putative class action seeking remedies pursuant to New Jersey's Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -184, and the Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18. Defendants TGI Friday's, Inc., and Carlson Restaurants Worldwide, Inc. (collectively TGIF) appeal -- on interlocutory leave granted by the New Jersey Supreme Court -- the denial of their motion to dismiss the complaint with prejudice for failure to state a claim. We affirm.

I.

Because this is a review of a denial of TGIF's motion to dismiss pursuant to Rule 4:6-2(e), we derive the following facts from plaintiff's spartan complaint. Roa v. Roa, 200 N.J. 555, 562 (2010) (observing that motion to dismiss must be based upon the content of the pleading itself).

Plaintiff Debra Dugan was a customer at TGIF's Mt. Laurel restaurant. The TGIF menu listed prices for all food items and wine, but did not list prices for beer, mixed drinks, or soft drinks. Dugan complains that "[d]efendants charged plaintiff an undisclosed amount for beverages while dining at [d]efendants' establishment." On one occasion, Dugan purchased Coors Lite beer at the bar, and was charged $2.00 per serving. She then sat at a nearby table, made a second order for the same beer, and was charged $3.59 per serving.

Dugan's grievance revolves around the undisclosed price differential for the same product that is based upon where in the restaurant -- at the bar or at a table -- the item is served. She also asserts that she is aggrieved because of the TGIF menu's "fail[ure] to disclose the price of beverages[,] and consumers only become aware of the prices when presented with an invoice (or 'check') after the beverage is consumed."

Based upon these limited factual assertions, Dugan's complaint, in count one, alleges that TGIF's activities constitute unconscionable commercial practices -- calling them (1) a "bait and switch" and (2) an unlawful practice countermanded by N.J.S.A. 56:8-2.5 (requiring all merchandise sold at retail to be accompanied by a posted price) -- and seeks remedies pursuant to the CFA. In addition, count two of the complaint alleges that TGIF's manner of offering to sell beverages to consumers -- its menu -- violates the TCCWNA because of "a clearly established right of the consumer to have the total selling price plainly marked or located at the point where the merchandise is offered for sale."

After Dugan filed her complaint, and issue was sharply joined by TGIF's answer, the parties engaged in limited discovery under the close management of the Law Division. In due course, TGIF moved to dismiss the complaint with prejudice pursuant to Rule 4:6-2(e). Dugan responded, surprisingly, with a certification containing additional factual allegations, including specific information about the purchase of a soft drink at TGIF. Dugan did not seek to amend her complaint. Even more curiously, in defense of the motion to dismiss, Dugan's attorney submitted a certification attesting to facts concerning his personal visits to three local restaurants and attaching the menus from several eateries, including a TGIF restaurant at an undisclosed location.

The judge approached the motion pursuant to Rule 4:6-2(e), even though the parties presented (and the judge did not exclude) limited "matters outside the pleading," which arguably should have converted the motion to one for summary judgment.*fn1

R. 4:6-2(e). The judge ultimately denied the motion to dismiss, and entered an order memorializing the interlocutory ruling.

TGIF moved for leave to appeal, but we denied the motion. Thereafter, TGIF sought the same relief from our Supreme Court, which was granted. The matter was summarily remanded to us with instructions to consider the issues on the merits.

II.

Our scope of review of a motion to dismiss for failure to state a claim "is governed by the same standard as that applied by the trial court." Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005) (citing Seidenberg ...


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