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Fabricatore v. ADT LLC

United States District Court, D. New Jersey

August 3, 2018

ADT LLC, et al., Defendants.



         This matter comes before the Court by Plaintiff Victor Fabricatore (“Plaintiff”), the business owner of Hillsborough Rare Coins (“HRC”), on a Motion for Reconsideration [ECF No. 64] of the Court's January 12, 2018 Order denying Plaintiff's Motion for leave to file a Second Amended Complaint. ECF No. 58. For the reasons set forth below, Plaintiff's Motion for Reconsideration is DENIED.


         The pertinent facts of this case were delineated by the Court in an Opinion issued on January 12, 2018 and are incorporated herein for the purpose of this Motion. ECF No. 57. Nevertheless, the Court will provide a brief summary of the relevant facts and procedural history. In 2006, Defendant ADT LLC (“Defendant” or “ADT”) installed a burglary alarm system on HRC's premises in exchange for a fee and agreed to provide store-monitoring services, among which included contacting Plaintiff and the appropriate authorities if the alarm system was activated. However, Plaintiff alleges that he never signed a contract memorializing these obligations; instead, ADT forged his signature on a Sales Proposal/Agreement (the “2006 Agreement”). According to Plaintiff, the forged 2006 Agreement included an oppressive set of Terms and Conditions which limited ADT's potential liability for failing to comply with its store-monitoring services obligations.

         In 2014, Plaintiff voluntarily entered into a new, identical contract with ADT (the “2014 Agreement”) that upgraded and converted HRC's existing burglary system to the “Pulse” system. Pursuant to its Paragraph B, ADT was required to provide the signal receiving and notification services which it previously promised to provide when the burglary system was originally installed: “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.” Proposed SAC, ¶ 15 (emphasis removed). Thus, ADT's obligations under the 2014 Agreement essentially remained the same.

         Because ADT allegedly failed to comply with its store-monitoring services obligations during a burglary on HRC's premises in 2015, Plaintiff filed the instant action against ADT in New Jersey Superior Court, Somerset County on December 2, 2015. On February 19, 2016, ADT filed a notice of removal to the United States District Court of New Jersey and subsequently moved to dismiss Plaintiff's Complaint. However, ADT's Motion was ultimately denied in order to provide Plaintiff with an opportunity to amend his original “bare-bones, two-count complaint, ” as the District Judge described. ECF. No. 22. Plaintiff then filed an eight-count First Amended Complaint, among which included a breach of contract claim and a New Jersey Consumer Fraud Act (“NJCFA”) claim.

         Thereafter, Defendant moved to dismiss the First Amended Complaint. On May 2, 2017, the Court granted Defendant's Motion in its entirety, with the exception of Plaintiff's breach of contract claim. However, Plaintiff was permitted to file a motion to amend in order to reassert a claim under the NJCFA, as to which the District Judge held:

HRC, however, has made no allegations in its Amended Complaint regarding an ascertainable loss [stemming] from the alleged unconscionable practices beyond that resulting from a breach of contract. Nor has HRC alleged how a 2006 forged signature on a non-operative contract led to that loss. Therefore, we find that HRC has not sufficiently alleged facts to support all elements of a CFA claim in the pleadings.

Hillsborough Rare Coins, LLC v. ADT LLC, No. 16-916, 2017 U.S. Dist. LEXIS 67113, at *28 (D.N.J. May 2, 2017) (citation omitted). Thus, the District Judge specifically identified the deficiencies with Plaintiff's NJCFA claim and, in that same vein, directed him to plead the statutory elements of ascertainable loss and causation.

         On September 15, 2017, Plaintiff filed a Motion for leave to file a Second Amended Complaint in which he simply realleged his NJCFA claim. The Court denied Plaintiff's Motion on procedural and substantive grounds, respectively including: (1) undue delay; and (2) failure to satisfy the NJCFA's statutory elements. As to the latter, the Court specifically held that Plaintiff's proposed pleading did not establish a causal relationship between the alleged forgery of a non-operative contract in 2006 and Plaintiff's examples of ascertainable harm, as the District Judge mandated.[1]

         On December 20, 2017, ADT moved for summary judgement on the basis of the 2014 Agreement's contractual provisions, which the District Judge subsequently granted in part and denied in part. Specifically, the District Judge declined to enforce the 2014 Agreement's Exculpatory Clause and preclude Plaintiff from recovering any damages for his breach of contract claim. Rather, ADT's potential liability was capped at $1, 000 in accordance with the 2014 Agreement's Limitation of Liability Provision. Subsequent to the resolution of ADT's Motion for summary judgment, the following Text Order was entered on the docket: “in the event [that] . . . Plaintiff's Motion for Reconsideration [is denied, ] this Court will issue an order remanding this matter.” ECF No. 73.

         Now, Plaintiff moves for reconsideration of the Motion for leave to file an amended NJCFA claim. In support, Plaintiff argues that the Court's prior finding of undue delay was inappropriate, because he filed his Motion to amend before the deadline set forth in the Court's Pretrial Scheduling Order (“PSO”). Plaintiff additionally maintains that the Court misinterpreted his amended allegations, as pled in the proposed Second Amended Complaint, sufficiently establishing a causal relationship between ADT's alleged forgery of the 2006 Agreement and the ascertainable losses which purportedly stem therefrom. Defendant opposes the Motion.

         II. ANALYSIS

         A. Standard of Review

         Local Civil Rule 7.1(i) governs motions for reconsideration. Agostino v. Quest Diagnostics, Inc., No. 04-4362, 2010 U.S. Dist. LEXIS 135310, at *5 (D.N.J. Dec. 22, 2010) (citation omitted). Local Civil Rule 7.1(i) permits a party to seek reconsideration by the Court of a matter which the party believes the Judge “overlooked” when it ruled on the motion. A motion for reconsideration under Rule 7.1(i) “shall be served and filed within 14 days after the entry of the order or judgment on the original motion by the Judge” and submitted with a “brief setting forth concisely the matter or controlling decisions which the party believes the Judge . . . has overlooked.” L. Civ. R. 7.1(i).

         The standard for reargument is high and reconsideration is to be granted only sparingly. United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994). A judgment may be altered or amended under Rule 7.1(i) if the movant shows at least one of the following grounds: “(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued its order]; or (3) the need to correct a clear error of law or fact to prevent manifest injustice.” Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 676 (3d Cir. 1999) (citation omitted). The Court will grant a motion ...

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