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Gary Ciser and Ciser Computer Consulting, On Behalf of Themselves and All Other Similarly Situated v. Nestle Waters North America

January 30, 2013

GARY CISER AND CISER COMPUTER CONSULTING, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED, PLAINTIFFS,
v.
NESTLE WATERS NORTH AMERICA, INC.,
DEFENDANT.



The opinion of the court was delivered by: William J. Martini, U.S.D.J.

OPINION

Plaintiffs Ciser Computer Consulting ("CCC") and Gary Ciser bring this putative class action against Defendant Nestle Waters North America, Inc. ("Nestle Waters") alleging violations of the New Jersey Consumer Fraud Act ("NJCFA"), and an unnamed common law, as well as unjust enrichment. This matter comes before the Court on Nestle Waters' motion to dismiss pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) for lack of standing and failure to state a claim upon which relief can be granted.*fn1 There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons discussed below, Nestle Waters' motion is GRANTED.

I. BACKGROUND

Gary Ciser owns CCC. Am. Compl. ¶ 10, ECF No. 11. From 2006 through 2009, Nestle Waters provided CCC with bottled Poland Spring water on a monthly basis. Id. ¶ 14. Though the contract was in CCC's name, Ciser paid the bills with his own money. Id. ¶ 10. He did not always pay on time. When he was late, Nestle Waters charged late fees. Some of those fees are reflected in the following chart:

Monthly Charge Late Fee Late Fee As Percentage of Monthly Charge $31.01 $15 48.4% $48.94 $15 30.6% $53.94 $15 27.8% $83.15 $15 18% $170.94 $15 8.8%

See Compl. ¶¶ 24-25, 30-31, ECF No. 1; Elliot Declaration, ECF No. 8-1. Ciser argues that these late fees were so excessive as to be unenforceable under New Jersey law.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

When a defendant brings a "facial" challenge to plaintiff's standing, the Court "must accept all allegations in the complaint as true and draw reasonable inferences in favor of the plaintiff." Lawrence v. Emigrant Mortg. Co., No. 11-3569, 2012 WL 1108532, at *4 (D.N.J. Mar. 30, 2012).

B. Federal Rule of Civil Procedure 12(b)(6)

In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998). This assumption of truth is inapplicable, however, to legal conclusions couched as factual allegations or to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Although a complaint need not contain detailed factual allegations, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is "plausible on its face." See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement' . . . it asks for more than a sheer possibility." Id. at 678.

"As a general matter, a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997)). But courts may consider indisputably authentic documents referenced in a complaint. See Pryor v. Nat'l Coll. Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). Nestle Waters provided the Court with bills referenced in Plaintiffs' complaint. Plaintiffs do not ...


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