United States District Court, D. New Jersey
HILLSBOROUGH RARE COINS, LLC. Plaintiff,
ADT LLC, f/k/a ADT SECURITY SERVICES, INC, et al. Defendants.
DOUGLAS E. ARPERT, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court by Plaintiff Hillsborough Rare
Coins, LLC (“Plaintiff” or “HRC”) on
a Motion for leave to file a Second Amended Complaint [ECF
No. 48]. Plaintiff, a small business that collects and sells
rare coins, brings this action against Defendant ADT Security
Services, Inc. (“Defendant” or
“ADT”), alleging that ADT breached a contractual
obligation under an Agreement entered into in 2014. For the
reasons set forth below, Plaintiff's Motion for leave to
file a Second Amended Complaint is granted in part and denied
BACKGROUND AND PROCEDURAL HISTORY
2006, Plaintiff had an ADT burglary alarm system installed on
its premises, located in Green Brook, New Jersey. Second
Amended Complaint (“SAC”), ¶ 6. In exchange
for a fee, Plaintiff alleges that ADT “promised”
to provide store monitoring services, as well as contact law
enforcement and Plaintiff if the alarm system was triggered.
Id., ¶ 7. But Plaintiff contends that an
agreement was never signed; rather, Plaintiff
“[r]ecently” discovered that a representative of
ADT forged the signature of Victor Fabricatore (“Mr.
Fabricatore”), HRC's owner, on a Sales
Proposal/Agreement containing Terms and Conditions limiting
ADT's potential liability, dated May 7, 2006 (the
“2006 Agreement”). Id., ¶ 8.
2014, Plaintiff entered into a new contract, under which
HRC's existing burglary alarm unit was upgraded and
converted to the “Pulse” system (the “2014
Agreement”). Id., ¶ 12. ADT's
responsibilities under this contract remained essentially the
same; specifically, pursuant to Paragraph B, ADT agreed to
provide signal receiving and notification services: “If
an alarm signal registers at ADT's [Customer Monitoring
Center], ADT shall endeavor to notify the appropriate Police
or Fire Department and the designated representative of
Customer.” Id., ¶ 15. Plaintiff alleges
that this contract provision is consistent with an ADT
associate's earlier representation, when the alarm system
was first purchased and installed. Id., ¶ 16.
1, 2015, at approximately 10:30 p.m., three burglars broke
into HRC using sophisticated tools and techniques, entering
through the wall of an adjoining business and accessing
HRC's rear room. Id., ¶¶ 17-19. As
video surveillance purportedly demonstrates, the heist lasted
for approximately three hours and the burglars absconded with
“numerous valuable rare coins and other merchandize,
while also causing extensive physical damage to the
store.” Id., ¶¶ 18, 20.
entering HRC, the burglars “cut or attempted to
cut” the alarm system's cables and ripped its
components from the wall, but the silent panic system was
activated, alerting ADT's monitoring station of the
intrusion. Id., ¶¶ 21-23. Although ADT
informed HRC of the silent panic alarm through a
computer-generated email to HRC at 10:36 p.m., it was marked
as spam and noticed only after the burglary concluded.
Id., ¶¶ 23, 24.
Plaintiff alleges that ADT had a contractual obligation to
call Mr. Fabricatore's cell phone and law enforcement,
yet ADT failed to notify either party. Id.,
¶¶ 24-25. On June 2, 2015, the following morning,
it was discovered that HRC had been burglarized.
Id., ¶ 30.
December 2, 2015, Plaintiff brought the instant action
against ADT in New Jersey Superior Court, Somerset County. On
February 19, 2016, ADT filed a Notice of Removal to the
United States District Court of New Jersey on the basis of
diversity jurisdiction. Subsequently, Plaintiff filed an
eight-count Amended Complaint, among which include breach of
contract and New Jersey Consumer Fraud Act
(“NJCFA” or the “Act”) claims.
Defendant then moved for dismissal, which this Court granted
as to every claim except the breach of contract claim.
now seeks leave to amend its claim under the NJCFA, arguing
that on September 26, 2014, Defendant induced
“Plaintiff to sign their alarm installation and
services contract” by representing that ADT would
“competently monitor the alarm system . . . and, if the
alarm system was triggered, immediately notify [Plaintiff] as
well as local law enforcement.” Id., ¶
59. Allegedly unbeknownst to Plaintiff, the 2014 Agreement
contained “exculpatory clauses, within print so tiny as
to be illegible and effectively hidden from view, ”
which, in turn, limited ADT's contractual liability.
Id., ¶ 60. Plaintiff also seeks to correct its
name in the caption of the Complaint, because it was wrongly
designated as a limited liability company, despite operating
as a sole proprietorship owned by Mr. Fabricatore. ADT
opposes the motion, arguing that the proposed Second Amended
Complaint fails to establish the required element of
causation under the NJCFA.
Standard of Review
to Federal Rule of Civil Procedure 15(a), “a party may
amend its pleading only with the opposing party's written
consent or the court's leave” and “[t]he
court should freely give leave when justice so
requires.” The decision to grant leave to amend rests
within the sound discretion of the trial court. Zenith
Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321,
330 (1970). In determining a motion for leave to amend,
courts consider the following factors: (1) undue delay on the
part of the party seeking to amend; (2) bad faith or dilatory
motive behind the amendment; (3) repeated failure to cure
deficiencies through multiple prior amendments; (4) undue
prejudice on the opposing party; and/or (5) futility of the
amendment. See Great Western Mining & Mineral Co. v.
Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010)
(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).