Debenedetto v. Denny's Inc.

• Decision Date: 23 April 2010
• Citation: 421 N.J.Super. 312,23 A.3d 496
• Parties: Nick DeBENEDETTO, Plaintiff,v.DENNY'S, INC., Defendant.
• Court: New Jersey Court of Chancery

421 N.J.Super. 312

23 A.3d 496

Nick DeBENEDETTO, Plaintiff,

v.DENNY'S, INC., Defendant.

Superior Court of New Jersey,Law Division,Middlesex County.

Decided April 23, 2010.

Andrew R. Wolf, North Brunswick (Galex Wolf, LLC; attorneys), and Michael Quirk (Williams Cuker Berezofsky, Cherry Hill; attorneys) of the Texas bar, admitted pro hac vice, argued the cause for Plaintiff, Nick DeBenedetto.Lauren E. Handler, Morristown (Porzio Bromberg & Newman, P.C.; attorneys) and Scott Elder (Alston & Bird, LLP; attorneys) of the Georgia bar, admitted pro hac vice, argued the cause for Defendant, Denny's, Inc.HAPPAS, P.J.S.C.

I. Introduction

This opinion addresses defendant Denny's, Inc.'s (“Denny's”) motion to dismiss plaintiff Nick DeBenedetto's (“DeBenedetto”) second amended class action complaint (“second amended complaint”). On November 10, 2009, this court dismissed plaintiff's first amended class action complaint (“first amended complaint”) without prejudice for failure to state a claim ¹ and afforded plaintiff leave to file an amended complaint. On December 7, 2009, plaintiff filed his second amended complaint. Defendant has now moved to dismiss plaintiff's second amended complaint for failure to state a claim.

DeBenedetto's second amended complaint alleges violations of the New Jersey Consumer Fraud Act (“CFA”).² Specifically, DeBenedetto claims that Denny's “deceptively presents” menu items without disclosing that its meals contain “excessive” amounts of sodium. Although greatly pared down from his first amended complaint,³ DeBenedetto's second amended complaint contains several allegations regarding the dangers of sodium and the levels of sodium contained in Denny's meals. In particular, DeBenedetto alleges that:

• According to the Centers for Disease Control and Prevention (CDC), about 70 percent of American adults fall into categories of people who should consume no more than 1,500 mg of sodium each day ... [and] to achieve these maximum intake levels, most of the remaining 30 percent of adults should limit their sodium intake as well.

• The amount of sodium in a typical meal is extraordinarily high, especially compared to the advised daily limit of 1,500 mg of sodium for most American adults. The daily limit means that an individual's average main meals should have no more than 500 to 1,000 mg of sodium each.

• Not one single Denny's meal ... contains less than 500 mg of sodium. On the other hand, at least 75 percent of those meals contain more than the maximum amount of sodium most American adults should consume in an entire day.

• Despite knowledge of the large amounts of sodium in its menu items and despite knowledge that many New Jersey consumers choose to limit their sodium intake, Denny's continues to produce, market and sell meals containing large amounts of sodium without disclosing this fact on its menus with the intent that New Jersey consumers continue to purchase these meals.

Additionally, in anticipation of the arguments previously advanced by Denny's in its motion to dismiss DeBenedetto's first amended complaint, DeBenedetto's second amended complaint expressly disclaims any personal injury damages. Specifically, DeBenedetto's second amended complaint states that he “neither alleges nor seeks personal injury or any other form of damages ...” and his claim is “limited strictly to equitable relief authorized by [the CFA].” Accordingly, DeBenedetto solely alleges economic damages under the CFA, including a refund of the purchase price of the meals he consumed and treble damages. In addition, DeBenedetto seeks a declaratory judgment that Denny's practices violate the CFA and an injunction requiring Denny's to disclose on its menus the amounts of sodium in its meals.

II. Motion to Dismiss Standard

Denny's brings its motion pursuant to Rule 4:6–2(e), contending that DeBenedetto's second amended complaint fails to state a claim upon which relief may granted. In addressing a motion to dismiss brought pursuant to Rule 4:6–2(e) a court's “inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint.” Printing Mart–Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746, 563 A.2d 31 (1989). However, the court must search the complaint “ ‘in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.’ ” Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J.Super. 244, 252, 128 A.2d 281 (App.Div.1957)). “Every reasonable inference is therefore accorded the plaintiff[.]” Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6–2(e) (2010); see also N.J. Sports Prods., Inc. v. Bobby Bostick Promotions, LLC, 405 N.J.Super. 173, 177, 963 A.2d 890 (Ch.Div.2007).

In Banco Popular North America v. Gandi, 184 N.J. 161, 165, 876 A.2d 253 (2005), the Court expressed the standard on such motions:

At this preliminary stage of the litigation [a] [c]ourt [should not be] concerned with the ability of the plaintiffs to prove the allegation contained in the complaint ... [P]laintiffs are entitled to every reasonable inference of fact. The examination of a complaint's allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach.

[internal citations omitted.]

Thus, such motions are granted “only in the rarest of instances.” Printing Mart–Morristown, supra, 116 N.J. at 772, 563 A.2d 31. “The plaintiff's obligation in order to defeat a motion to dismiss is ‘not to prove the case but only to make allegations, which, if proven, would constitute a valid cause of action.’ ” Schulman v. Wolff & Samson, P.C., 401 N.J.Super. 467, 473–74, 951 A.2d 1051 (App.Div.) (quoting Leon v. Rite Aid Corp., 340 N.J.Super. 462, 472, 774 A.2d 674 (App.Div.2001)), certif. denied, 196 N.J. 600, 960 A.2d 395 (2008).

By the same token, however, “[a] complaint may be dismissed for failure to state a claim if it fails ‘to articulate a legal basis entitling plaintiff to relief.’ ” Hoffman v. Hampshire Labs, Inc., 405 N.J.Super. 105, 112, 963 A.2d 849 (App.Div.2009) (quoting Sickles v. Cabot Corp., 379 N.J.Super. 100, 106, 877 A.2d 267 (App.Div.) (internal citations omitted), certif. denied, 185 N.J. 297, 884 A.2d 1267 (2005)). Obviously, “if the complaint states no basis of relief and discovery would not provide one, dismissal is the appropriate remedy.” Banco Popular, supra, 184 N.J. at 166, 876 A.2d 253. Specifically, “[a] motion to dismiss ‘may not be denied based on the possibility that discovery may establish the requisite claim; rather, the legal requisites for plaintiff's claim must be apparent from the complaint itself.’ ” N.J. Sports Prods., Inc., supra, 405 N.J.Super. at 178, 963 A.2d 890 (quoting Edwards v. Prudential Prop. & Cas. Co., 357 N.J.Super. 196, 202, 814 A.2d 1115 (App.Div.), certif. denied, 176 N.J. 278, 822 A.2d 608 (2003)).

III. Plaintiff's CFA Claim is Subsumed by the Products Liability Act

The primary basis for Denny's motion to dismiss is that DeBenedetto's CFA claim is, in essence, a products liability claim for which the New Jersey Products Liability Act (“PLA”), N.J.S.A. §§ 2A:58C–1 to –11, affords an exclusive remedy. For the following reasons, the court opines that DeBenedetto's CFA claim is subsumed by the PLA.

In 1987 the Legislature enacted the PLA based on an “urgent need for remedial legislation to establish clear rules with respect to certain matters relating to actions for damages for harm caused by products.” N.J.S.A. 2A:58C–1a. Shortly after the PLA was enacted, the New Jersey Supreme Court declared that “[t]he Legislature intended ... to limit the liability of manufacturers so as to ‘balance [ ] the interests of the public and the individual with a view towards economic reality.’ ” Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 47–48, 675 A.2d 620 (1996) (quoting Shackil v. Lederle Labs., 116 N.J. 155, 188, 561 A.2d 511 (1989)). A products liability action is defined as “any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty.” N.J.S.A. 2A:58C–1b(3). Accordingly, the PLA is the exclusive remedy for harms caused by a product.

The New Jersey Supreme Court's decision in In re Lead Paint Litig., 191 N.J. 405, 924 A.2d 484 (2007) is instructive on the issue of whether a CFA claim is subsumed by the PLA.⁴ In Lead Paint, twenty-six municipalities and counties sought to recover, from manufacturers and distributors of lead paints, the costs of detecting and removing lead paint from homes and buildings, of providing medical care to residents affected with lead poisoning, and of developing programs to educate residents about the dangers of lead paint. Id. at 408–09, 924 A.2d 484. Although the complaints initially sought recovery through a wide variety of legal theories, the Court was called upon to consider only whether the plaintiffs had stated a cognizable claim based on the common law tort of public nuisance. Id. at 409, 924 A.2d 484. The Supreme Court held that the PLA encompasses “virtually all possible causes of action relating to harms caused by consumer and other products.” Id. at 436–37, 924 A.2d 484.

The essence of the claims asserted by the plaintiffs in Lead Paint was that the defendants failed to warn of the dangers of lead paint. Id. at 437, 924 A.2d 484. The Court noted that the harms plaintiff was seeking to vindicate are addressed in the context of a products liability claim:

Were there any doubt about the essential nature of the claims asserted by plaintiffs, a careful reading would demonstrate that they sound in products liability causes of action. The central focus of plaintiffs' complaints is that defendants were aware of dangers associated with lead—and by extension, with the dangers...