The opinion of the court was delivered by: Hon. Jerome B. Simandle
Plaintiff Watkins brings this putative class action alleging that Defendants DineEquity, Inc., and Applebee's International, Inc., d/b/a Applebee's Neighborhood Grill & Bar ("Applebee's"), d/b/a International House of Pancakes, LLC ("IHOP"), violated New Jersey's Truth-in-Consumer Contract, Warranty and Notice Act ("TCCWNA"), N.J. Stat. Ann. § 56:12-14, et seq., by omitting the price of soda, beer, wine, coffee and other drinks from their restaurant menus. [First Am. Compl. ¶ 10.]
There are two motions before the Court: Plaintiff's motion for reconsideration of this Court's dismissal of the First Amended Complaint*fn1 [Docket Item 34] and Defendants' motion to dismiss Plaintiff's Second Amended Complaint. [Docket Item 42.]
The key issues are whether the Court overlooked controlling precedent and made a clear error of law in its previous Opinion, and, if not, whether Plaintiff's Second Amended Complaint pleads additional facts that would support a plausible claim under the TCCWNA. Because the Court finds that it did not overlook any controlling precedent, the motion for reconsideration will be denied, and because Plaintiff did not add new factual content to her Second Amended Complaint, the motion to dismiss will be granted.
Plaintiff alleges that she purchased soft drinks and beers at Applebee's and IHOP restaurants and that prices for the beverages were not listed on the menus. [First Am. Compl. ¶ 13.] Plaintiff claims that, under New Jersey law, Defendants must communicate the price of all items at the point where the merchandise is offered for sale and that failure to do so is a violation of the TCCWNA.*fn2 [Id. ¶¶ 23-25.]
Defendants removed the action to this Court and, upon Defendants' motion, the Court dismissed the First Amended Complaint without prejudice. See Watkins, 2012 WL 3776350, at *7-*10. The Court determined that a restaurant menu fit within the definitions of a "notice," a "sign," or both, for the purposes of the TCCWNA. Id. at *6. But after considering the text of the statute, its legislative history, and state and federal case law, the Court ultimately concluded that the omission of prices from the menus did not trigger the TCCWNA. "Because omitting certain prices from restaurant menus does not pose the same risk of misleading a consumer into failing to enforce her legal rights as an affirmative misrepresentation, the Court finds the New Jersey Legislature did not intend NJTCCWNA to apply to price omission." Id. at *9. In light of this holding, the Court declined to consider whether the omission of prices from menus violated either a clearly established legal right of the consumer or responsibility of the seller. Id. at *10.
The Court granted Plaintiff the opportunity to seek leave to file a Second Amended Complaint. Plaintiff did not so move. Instead, Plaintiff simultaneously filed a timely motion for reconsideration under L. Civ. R. 7.1(i) and docketed a Second Amended Complaint without an accompanying motion seeking leave to amend. [Docket Item 36.] Defendants opposed the motion for reconsideration, and Plaintiff, again without seeking leave of the Court, filed a letter brief in reply, augmenting her argument with additional citations to case law. Defendants objected to the filing of a reply for a motion for reconsideration, because Plaintiff did not receive the Court's permission to so file, as required by L. Civ. R. 7.1(d)(3) ("No reply paper shall be filed, unless permitted by the Court, relating to the following motions: . . . Reconsideration under L.Civ.R. 7.1(i) . . . ."). Noting these procedural errors, Defendants requested that the Court strike the reply brief from the docket. [Docket Item 40.] Plaintiff responded by urging the Court to consider the motion for reconsideration "as requesting leave to amend as alternative relief." [Docket Item 41.]
Defendants nonetheless filed a motion to dismiss the Second Amended Complaint. [Docket Item 42.] While Defendants observed that Plaintiff's filing of the Second Amended Complaint did not comply with this Court's Order of August 29, 2012, they agreed, out of consideration for "judicial efficiency," to respond directly to the SAC with this motion to dismiss as opposed to waiting for plaintiff to separately file a motion for leave and then filing an opposition to that motion . . . . Defendants note that an opposition to a motion for leave to amend based on Rule 15 would turn on 'futility' arguments - precisely the same arguments as those made herein. [Def. Mot. to Dismiss at 1 n.1.] Defendants argue that the Second Amended Complaint adds legal conclusions but does not cure the deficiencies that led the Court to dismiss the First Amended Complaint. [Def. Mot. to Dismiss at 2, 5.]
A. Motion for Reconsideration
A motion for reconsideration is "an extraordinary remedy to be granted very sparingly." In re Lord Abbett Mut. Funds Fee Litig., 417 F. Supp. 2d 624, 627 (D.N.J. 2005) (internal quotation marks omitted). There are three grounds for relief upon which a motion for reconsideration may be granted, under L. Civ. R. 7.1(i): "(1) an intervening change in controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice." Connolly v. Mitsui O.S.K. Lines (Am.) Inc., No. 04-5127, 2010 WL 715775, ...