McLaren v. The UPS Store, Inc.

• Decision Date: 22 July 2021
• Docket Number: A-1612-20
• Court: New Jersey Superior Court — Appellate Division
• Parties: BARBARA MCLAREN, on behalf of herself and others similarly situated, Plaintiff-Respondent, v. THE UPS STORE, INC., TURQUOISE TERRAPIN, LLC, formerly d/b/a UPS STORE #4122, RK &SP SERVICES, LLC, formerly d/b/a UPS STORE #4122, HAMILTON PACK N SHIP, LLC, in their own right and as representatives of a class of similarly situation UPS STORE franchisees, Defendants-Appellants.

BARBARA MCLAREN, on behalf of herself and others similarly situated, Plaintiff-Respondent, v. THE UPS STORE, INC., TURQUOISE TERRAPIN, LLC, formerly d/b/a UPS STORE #4122, RK &SP SERVICES, LLC, formerly d/b/a UPS STORE #4122, HAMILTON PACK N SHIP, LLC, in their own right and as representatives of a class of similarly situation UPS STORE franchisees, Defendants-Appellants.

No. A-1612-20

Superior Court of New Jersey, Appellate Division

July 22, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 10, 2021

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Mercer County, Docket No L-0919-20.

Joseph R. Palmore (Morrison &Foerster, LLP) of the District of Columbia bar, admitted pro hac vice, argued the cause for appellants (Morrison &Foerster, LLP, attorneys; David J Fioccola, Adam J. Hunt, and Mark R. McDonald (Morrison &Foerster, LLP) of the California bar, admitted pro hac vice, on the briefs).

Jared M. Placitella argued the cause for respondent (Cohen Placitella &Roth, PC, attorneys; Jared M. Placitella Caroline Ramsey Taylor (Whitfield Bryson, LLP) of the Tennessee bar, admitted pro hac vice, and Daniel K. Bryson and Jeremy R. Williams (Whitfield Bryson, LLP) of the North Carolina bar, admitted pro hac vice, of counsel and on the briefs).

Before Judges Messano, Hoffman, and Suter.

PER CURIAM.

In this putative class action, we granted defendant, RK &SP Services LLC, leave to appeal from the Law Division's order denying defendant's motion to dismiss the complaint brought by plaintiff Barbara McLaren individually and as representative of a class. Our February 18, 2021 order limited our review to plaintiff's individual claims premised upon defendant's "alleged violation of N.J.S.A. 22A:4-14."^[1] That statute provides:

For a service specified in this section, foreign commissioners of deeds, notaries public, judges and other officers authorized by law to perform such service shall receive a fee as follows:

For administering an oath or taking an affidavit, $2.50.

For taking proof of a deed, $2.50.

For taking all acknowledgments, $2.50.

For administering oaths, taking affidavits, taking proofs of a deed, and taking acknowledgments of the grantors in the transfer of real estate, regardless of the number of such services performed in a single transaction to transfer real estate, $15.00.

For administering oaths, taking affidavits and taking acknowledgments of the mortgagors in the financing of real estate, regardless of the number of such services performed in a single transaction to finance real estate, $25.00.

[N.J.S.A. 22A:4-14 (the Statute) (emphasis added).]

Because this appeal comes to us from the denial of defendant's motion to dismiss the complaint for failure to state a claim, "[w]e . . . treat [plaintiff's] version of the facts as uncontradicted and accord it all legitimate inferences. We pass no judgment on the truth of the facts alleged; we accept them as fact only for the purpose of reviewing the motion to dismiss." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005) (citing R. 4:6-2(e)). The critical concern is whether, upon review of the complaint, exhibits attached thereto and matters of public record, there exists "the fundament of a cause of action"; "the ability of the plaintiff to prove its allegations is not at issue." Id. at 183 (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)).

We review a decision denying a motion to dismiss for failure to state a claim de novo applying the same standard as the Law Division judge. MasTec Renewables Constr. Co. v. SunLight Gen. Mercer Solar, LLC, 462 N.J.Super. 297, 309 (App. Div. 2020) (citing Castello v. Wohler, 446 N.J.Super. 1, 14 (App. Div. 2016)). Moreover, when analyzing pure questions of law raised in a dismissal motion, such as the application of a statute of limitations, we undertake a de novo review. Smith v. Datla, 451 N.J.Super. 82, 88 (App. Div. 2017) (citing Royster v. N.J. State Police, 227 N.J. 482, 493 (2017); Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013)).

I.

On August 26, 2019, plaintiff visited UPS Store #4122 in Hamilton Square, owned at the time by defendant. She sought a notary to take her affidavit on an L-8 Form for the Division of Taxation and to acknowledge her signature on a bank form. Defendant charged plaintiff five dollars per document, for a total of ten dollars. Plaintiff filed this complaint, alleging the following causes of action against defendant: violation of the Statute; violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -226; unjust enrichment; and civil conspiracy. She sought bilateral certification of a class of all customers in New Jersey charged fees in excess of those permitted by the Statute by a defendant class of TUPPS franchisees who charged excessive fees to notarize documents.

Defendant moved to dismiss the complaint before filing an answer, contending it failed to state a cause of action; defendant also sought to strike plaintiff's class allegations. The judge heard legal argument on the motion.

In a written decision, after reciting the relevant case law and the parties' contentions and arguments, the judge concluded "[t]he actual interpretation of the [S]tatute and how parties have perceived [it] cannot be established without further evidence. There are clearly triable issues of fact here, and . . . the matter must be allowed to proceed." The judge denied defendant's motion.^[2]

II.

Defendant repeats the same arguments made in the Law Division. It contends the plain meaning of the Statute is clear - by using the phrase "shall receive," the Legislature signified a "minimum fee" for a notary's service in administering an oath or taking an affidavit, not "a maximum limit" as to what a business may charge for such services. Defendant contends the Statute's plain meaning is confirmed by "statutory context and canons of construction," and "subsequent legislative history and secondary sources" do not "alter [the Statute's] plain meaning." Lastly, defendant contends the Statute does not "infer" any private right of action for alleged violations.

Plaintiff agrees the Statute is not ambiguous - simply put, it "sets the price that can be charged for notary services." Plaintiff contends this construction is supported by canons of statutory interpretation, legislative history, and secondary sources. Plaintiff also argues the Statute implicitly creates a cause of action for its violation, and any violation is also actionable under the CFA.

"The objective of all statutory interpretation is to discern and effectuate the intent of the Legislature[, ]" Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012), and "the best indicator of that intent is the statutory language" which should be given its "ordinary meaning and significance." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (first citing Frugis v. Bracigliano, 177 N.J. 250, 280 (2003); and then citing Lane v. Holderman, 23 N.J. 304, 313 (1957)). "We construe the words of a statute 'in context with related provisions so as to give sense to the legislation as a whole.'" Spade v. Select Comfort Corp., 232 N.J. 504, 515 (2018) (quoting N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 570 (2017)).

Courts may not "rewrite a plainly written statute or . . . presume that the Legislature meant something other than what it conveyed in its clearly expressed language." Murray, 210 N.J. at 592 (citing DiProspero, 183 N.J. at 492). "If the plain language leads to a clear and unambiguous result, then our interpretive process is over." Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016) (quoting Richardson v. Bd. of Trs., Police &Firemen's Ret. Sys., 192 N.J. 189, 195 (2007)). "We rely on extrinsic evidence of legislative intent 'only when the statute is ambiguous, the plain language leads to a result inconsistent with any legitimate public policy objective, or it is at odds with a general statutory scheme.'" Spade, 232 N.J. at 515 (quoting Shelton v. Restaurant.com, Inc., 214 N.J. 419, 429 (2013)).

Defendant contends the Statute "creates an entitlement for notaries to be compensated, not a restriction on what they or their employers may charge." Plaintiff counters that the plain language of the Statute - a notary "shall receive a fee" - evidences the Legislature's intent to limit the fee for performance of the outlined services. With both sides arguing diametrically opposed views of the Statute's plain meaning, we might assume some ambiguity regarding the Legislature's choice of words. See, e.g., MasTec Renewables, 462 N.J.Super. at 320 (noting ambiguity in a statute if its wording "leads to more than one plausible interpretation" (quoting State v. Twiggs, 233 N.J. 513, 532 (2018))). However, we are inclined to agree with plaintiff.

Shall means "[h]as a duty to; more broadly, is required to." Black's Law Dictionary 1653 (11th ed. 2019). "When according statutes their plain meaning, 'the word "may" ordinarily is permissive and the word "shall" generally is mandatory.'" In re State Bd. of Educ.'s Denial of Petition, 422 N.J.Super. 521, 532 (App. Div. 2011) (quoting Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000)). "In __. . . rare situations, the word 'shall' conveys only a suggestion that something be done, rather than a mandate to do it." Ibid. But, only "[i]f no public benefit ensues and no private right is insured by according the word 'shall' an imperative meaning, . . . is [it] to be construed as directory rather than mandatory." State v. Jorn, 340 N.J.Super. 192, 196 (App. Div. 2001) (quoting Franklin Ests. v. Twp. of Edison, 142 N.J.Super. 179, 184 (App. Div. 1976), aff'd, 73 N.J. 462 (1977)).

Pursuant to the ...