United States District Court, D. New Jersey
SPARKLE HILL, INC., individually and as the representative of a class of similarly-situated persons, Plaintiff,
Invecor, LLC, doing business as AMB Business Supply, Defendant.
JAMES C. SHAH, SHEPHERD, FINKELMAN, MILLER & SHAH, LLP, COLLINGSWOOD, NJ, On behalf of plaintiff.
JOHN H. KING, THOMPSON, BECKER & BOTHWELL, LLC, WOODCREST PAVILION, TEN MELROSE AVENUE, CHERRY HILL, NJ.
DAVE E. KAWALA, CATHERINE BASQUE WEILER, SWANSON, MARTIN & BELL, LLP, CHICAGO, IL, On behalf of defendant.
NOEL L. HILLMAN, District Judge.
In this putative class action for claims concerning an alleged "junk fax, " presently before the Court is defendant's motion to dismiss plaintiff's complaint. For the reasons expressed below, defendant's motion will be granted in part, denied in part, and continued in part.
On January 24, 2007, plaintiff, Sparkle Hill, Inc., received an unsolicited telephone facsimile on its fax machine from defendant, Invecor, LLC. The fax was an advertisement selling cash register and credit card paper rolls. Based on this fax, plaintiff has filed a three-count complaint for violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, the New Jersey "Junk Fax Statute" ("NJJFS"), N.J.S.A. 56:8-157 et seq., and the New Jersey Consumer Fraud Act ("NJCFA"), N.J.S.A. 56:8-1 et seq. Plaintiff has pleaded these claims as a putative class action.
Defendant has moved to dismiss all of plaintiff's claims, arguing that plaintiff's claims are not viable because its damages are de minimis. If that request for relief is not granted, defendant seeks dismissal of plaintiff's request for class action treatment of its claims, arguing that TCPA-type claims are not maintainable under New Jersey law. Defendant also argues that plaintiff's claims under the New Jersey Junk Fax Statute and NJCFA are duplicative, and should be merged into one count. Plaintiff has opposed defendant's motion.
This Court has jurisdiction over plaintiff's federal claim under 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiff's state law claims under 28 U.S.C. § 1367.
B. 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, 351 (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). Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp. , 562 F.2d 434, 446 (3d Cir. 1977). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin Cnty. Welcome Ctr. v. Brown , 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation omitted).
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 Atlantic v. Twombly , 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer v. Rhoades , 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal , 556 U.S. 662, 684 (2009) ("Our decision in Twombly expounded the pleading standard for all civil actions'...."); Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) ...