SUSAN D. WIGENTON, District Judge.
Before this Court is a Motion to Dismiss, filed by Evan Kuperman and Galaxy Nyack, Inc. d/b/a Rockland Toyota (collectively, "Defendants"), for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b). These motions are decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, the Motion to Dismiss is
Richard M. Zelma ("Plaintiff") is a resident of Norwood, New Jersey. (Compl. ¶ 3.) Plaintiff's phone number, which he has had for forty years, has been on the federal and New Jersey Do-Not-Call Lists ever since those lists were created. (
Galaxy Nyack, Inc. d/b/a Rockland Toyota ("Rockland Toyota") is a Delaware corporation with its principal place of business in Blauvelt, New York. (
In 2008, Plaintiff leased a 2008 Toyota from Rockland Toyota. (
On March 28, 2013, Plaintiff filed a complaint against Defendants in New Jersey Superior Court, Law Division, Bergen County ("2013 Action"). (Compl. ¶ 19; Zelma v. Toyota Fin. Servs. Corp., Docket No. L-1027-13, (N.J. Super. Ct. Law Div. 2013).) In the 2013 action, Plaintiff alleged that Defendants made telephone calls to advertise "great deals" for his next lease or purchase despite the inclusion of Plaintiff's telephone number in the Do-Not-Call lists, his explicit rejection of the Consent Agreement, and his verbal request that Defendants may only call him regarding the service of his vehicle. (Compl. ¶¶ 13-19.) Defendants removed the matter to the District Court on June 10, 2013. (
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On September 9, 2014, Plaintiff's Caller ID registered three calls from Defendants' phone number at 9:48 a.m., 9:53 a.m., and 10:04 a.m. (
On December 4, 2014, Plaintiff filed a Complaint in New Jersey Superior Court, Law Division, Bergen County. (Dkt. No. 1, Ex. 1.) On January 15, 2015, Defendants removed this matter to federal court. (Dkt. No. 1.) On March 23, 2015, Plaintiff sought leave to amend the Complaint, which was granted on April 10, 2015. (Dkt. Nos. 15, 18.) On April 17, 2015, Plaintiff filed his Amended Complaint. (Dkt. No. 19.) In the sole count of the complaint, Plaintiff alleges a violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(c)(5)(B).
On April 30, 2015, in lieu of filing an answer, Defendants filed the instant Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 20.)
An adequate complaint must be "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). This rule "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (external citations omitted); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 "requires a `showing,' rather than a blanket assertion, of an entitlement to relief").
In considering a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 231 (external citation omitted). Stating a claim requires a complaint with enough "factual matter (taken as true) to suggest" the required element. Phillips, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 55 n. 3). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether the allegations in a complaint are "plausible" is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. If the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint should be dismissed for failing to "show[] that the pleader is entitled to relief" as required by Rule 8(a)(2). (
Defendants argue that Plaintiff is barred from litigating any claims relating to telephone solicitations pursuant to the 2013 Release. (Dkt. No. 20.) By the terms of the 2013 Release, Plaintiff waived all present and future claims "relating to the subject matter" of the 2013 Release and averred that he would dismiss or withdraw all claims "filed prior to the execution of" the Release even if new facts arose relating to "anything that has happened up until now." (Dkt. No. 1, Ex. 1, ¶¶ 2-3) (emphasis added.) Plainly, the subject matter of the 2013 Release relates to the alleged solicitations that occurred before its execution. Because the subject matter of this case— the calls made on September 9, 2014—is not related to the calls that precipitated the 2013 Release, Plaintiff's present claims are not barred.
The TCPA provides that:
47 U.S.C. § 227(c)(5)(B).
Federal regulations clarify that "no person or entity shall initiate any telephone solicitation to . . . [a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government." 47 C.F.R. §64.1200(c)(2). "Telephone solicitation" refers to "the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person." 47 C.F.R. §64.1200(f)(14). Telephone solicitations, however, do not include a call or message "to any person with that person's prior express invitation or permission." 47 C.F.R. § 64.1200(f)(14)(i) (emphasis added).
In 2008, Plaintiff declined to sign the Consent Agreement authorizing the dealership to call him for matters unrelated to maintenance service or recalls that affect his vehicle. (Compl., ¶¶ 13-14.) Plaintiff also barred defendants from calling him for "anything except that related to `the vehicle being serviced.'" (
An implied contract reflects the parties' "mutual agreement and intent to promise . . . inferred from the conduct of the parties" where "the agreement and promise have not been verbally expressed." Matter of Penn Cent. Transp. Co., 831 F.2d 1221, 1228 (3d Cir. 1987) (citing 1 S. Williston on Contracts § 3 (3d ed. 1957)); St. Paul Fire & Marine Ins. Co. v. Indem. Ins. Co. of N. Am., 32 N.J. 17, 23 (1960). The requirements for implied contracts and express contracts are identical: offer, acceptance, and consideration. See Gardinier v. V.I. Water & Power Auth., 145 F.3d 635, 644 (3d Cir. 1988).
Plaintiff asserts that some combination of the circumstances surrounding the 2013 Release and the terms of the 2013 Release itself created an implied contract binding or estopping Defendants from making any further calls to him. (Dkt. No. 21, 16-18.)
With respect to the implied contract claim, the 2013 Release provided for no future responsibilities other than non-disclosure of its terms. (Dkt. No. 20, Schwartz Cert. Ex. 3, ¶ 9.) In addition, it expressly stated that its terms constituted the entirety of the parties' agreement. (
Promissory estoppel requires (1) a clear and definite promise made with the expectation the promisee will rely on it and (2) reasonable, detrimental reliance. See Toll Bros., Inc. v. Bd. of Chosen Freeholders of County of Burlington, 194 N.J. 223 (2008); Malaker Corp. v. First Jersey Nat'l Bank, 163 N.J.Super. 463, 479 (App. Div. 1998). In addition to the fact that the Amended Complaint contains no evidence of a clear or definite promise made by the Defendants, it also contains no allegations with respect to Plaintiff's detrimental reliance on such promise. (
For the reasons stated above, this Court