EP Henry Corp. v. Cambridge Pavers, Inc.

383 F.Supp.3d 343

EP HENRY CORP., Plaintiff/Counterclaim Defendant,

v.CAMBRIDGE PAVERS, INC., Defendant/Counterclaim Plaintiff.

Civil Action No. 17-1538 (JBS/KMW)

United States District Court, D. New Jersey.

Signed April 18, 2019

Craig S. Hilliard, Esq., Gene Markin, Esq., STARK & STARK, PC, Princeton Pike Corporate Center, 993 Lenox Drive - Building Two, PO Box 5315, Princeton, NJ 08543, Attorneys for Plaintiff/Counterclaim Defendant.

John Michael Agnello, Esq., Christopher John Buggy, Esq., Melissa E. Flax, Esq., CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, PC, 5 Becker Farm Road, Roseland, NJ 07068, Attorneys for Defendant/Counterclaim Plaintiff.

JEROME B. SIMANDLE, U.S. District Judge

I. INTRODUCTION

Plaintiff EP Henry Corporation ("EP Henry" or "Plaintiff") filed a Complaint against Defendant Cambridge Pavers, Inc. ("Cambridge" or "Defendant") alleging, inter alia, that Cambridge engaged in false advertising in violation of the Lanham Act. (See generally Compl. [Docket Item 1].) Cambridge moved to dismiss the Complaint [Docket Item 8], which the Court granted in part and denied in part.¹ [Docket Item 21.]

Cambridge filed a Counterclaim against EP Henry [Docket Item 26], which was subsequently amended. [Docket Item 51.] In its First Amended Counterclaim, Cambridge generally alleges that EP Henry engages in false advertising relating to its "Duraface technology" and "ColorTech Technology" in violation of the Lanham Act. [Id. at. ¶¶ 5, 10-12.]

Currently pending before the Court is EP Henry's motion for judgment on the pleadings, pursuant to Rule 12(c), FED. R. CIV. P ., wherein EP Henry seeks to dismiss Cambridge's First Amended Counterclaim. [Docket Item 53.] The principal issue to be decided is whether Cambridge's advertising counterclaims are non-actionable as mere "puffery." For the reasons explained herein, the Court finds that a number of EP Henry's statements at issue constitute puffery as a matter of law, but that it is plausible that the other statements, in context, do not. Accordingly, EP Henry's motion will be granted in part as to certain non-actionable statements in the First Amended Counterclaim and denied in part as to the remaining statements in the First Amended Counterclaim.

II. BACKGROUND

A. Factual Background

EP Henry and Cambridge are both New Jersey businesses engaged in the manufacturing of concrete paving stones and are competitors in the industry. (First Amended Counterclaim [Docket Item 51] at ¶¶ 1-2, 7.) EP Henry markets and sells its pavers under the name "Durafacing," which was registered as a trademark with the United States Patent and Trademark Office. (Id. at ¶¶ 8-9.) It also uses the names "Durafacing Technology," "ColorTech," "COLORTECH," and "Superior Color Technology" to advertise and sell its paving stone products. (Id. at ¶¶ 8, 10.) EP Henry advertises its pavers to a "wide audience of consumers" through a variety of forms including catalogs, brochures, television commercials, and the internet. (Id. at ¶ 12.)

According to Cambridge, in EP Henry's "marketing, advertising and promotional materials and presentations, [it] claims that its paving stone products ... results in its paving stones being superior to those of its competitors, including Cambridge." (Id. at ¶ 10.) Cambridge provides the following "non-exclusive" list of forty (40) phrases, words, and statements that EP Henry has used to advertise and promote its product, which Cambridge alleges are "unsubstantiated and per se false, literally false, denigrating, misleading, deceptive and/or misstatements of fact":

• "The Durafacing Advantage ... an exceptional richness and depth of color, with a smoother texture than you'll find anywhere else."

• "Durafacing. A STEP ABOVE THE REST!"

• "There are many names and imitators - [Cambridge's] Armortec."

• "EP Henry developed our state-of-the art Durafacing technology, allowing us to create pavers of UNRIVALED BEAUTY and durability."

• "EP Henry pavers possess a smoother surface texture and RICHER COLOR than those of other manufacturers [including Cambridge], providing the most sophisticated and highest quality product."

• "QUALITY, BEAUTY AND DURABILITY TO LAST A LIFETIME, only with Durafacing technology."

• "Quality, beauty and durability to last a lifetime, only with Durafacing technology, only from EP Henry."

• "Nothing surpasses EP Henry Pavers with Durafacing technology."

• "Durafacing ... A much smoother, denser surface."

• "EP Henry [has] the BEST products."

• "EP Henry's Durafacing technology was first in the market and has been imitated but never equaled."

• "EP Henry's Durafacing process produces pavers with a smoother surface texture and richer color than those of other manufacturers [including Cambridge]."

• "EP Henry Duraface Pavers ... unequalled durability, smooth texture and rich color."

• "[O]ur state-of-the-art Durafacing technology, allowing us to create pavers of unrivaled beauty and durability."

• "DURAFACE PAVERS ... CONSTRUCTED TO LAST A LIFETIME."

• "[M]arket leader; highest quality; ensures the best product and best finished product."

• "Fact: EP Henry Authorized Hardscaping Distributors are the BEST."

• "Fact: Only EP Henry can utilize the right process to create the best pavers for your home."

• "FACT. EP Henry makes the best paver."

• "[O]nly EP Henry's sophisticated manufacturing facilities included [sic] a variety of production line and processes."

• "No one makes it better." • "Superior Color Technology."

• "clearly superior to any other product in the industry."

• "EP Henry perform[s] much better than the competition [including Cambridge]."

• "EP Henry is the BEST in its Marketplace."

• "[M]anufacturing the highest quality products in the most advanced production facilities in North America"

• "Durafacing is a sophisticated process, requiring a higher level of manufacturing equipment and skill, which produces an enhanced surface texture with exceptional strength.

• "EP Henry Pavers ... are more resistant to de-icing salts than ... pavers that utilize inferior materials."

• "Where most manufacturers [including Cambridge] adapt one machine to making multiple products, we have separate facilities and equipment for each of our processes. No other manufacturer can make this claim and, therefore, nor can they match our quality and consistency."

• "[W]e [EP Henry] make the best performing and most appealing Hardscaping [including paving stones] products on the market."

• "Only EP Henry manufactures all of our Hardscaping products: Pavers, Walls, Edgers and Veneer Stone."

• "QUALITY FOR LIFE."

• "EP Henry offers a broad assortment of distinctive pavers and walls that set the standard for beauty, quality, and durability."

• "[D]esigned to offer a superior value to our competitors' leading products."

• "INDUSTRY EXCLUSIVE LIFETIME PRODUCT WARRANTY"

• "EP Henry ColorTech Pavers are an exciting new innovation which provides a premium look that's "a cut above" natural stone. The secret is a proprietary formula used in the manufacturing process that intensifies the beauty of our pavers while creating a protective coating that is resistant to staining, acid rain and UV rays. Pavers with ColorTech serve to enhance and protect your investment."

• "COLORTECH is a hardscaping innovation."

• "These pavers [ColorTech] capture the look of natural stone through a unique process that creates deeper, richer colors and extends color fastness and durability over time."

• EP Henry pavers "provide a slip-resistant walking surface."

• EP Henry pavers "provide a non-skid, non-slip surface that is safer."

• EP Henry pavers are "stain resistant."

(Id. at ¶ 13.)

Cambridge's First Amended Counterclaim further alleges that "EP Henry has also used photographic side-by-side comparisons of its paving stones with the paving stones of an unnamed competitor that distort the performance capabilities." (Id. at ¶ 14.) According to Cambridge, EP Henry's deceptive conduct has caused consumers to make purchasing decisions based on "EP Henry's false and/or misleading representations about the capabilities of its ‘Durafacing,’ ‘Durafacing Technology,’ ‘ColorTech,’ ‘COLORTECH’ and/or ‘Superior Color Technology’ paving stones." (Id. at ¶ 16.) Specifically, Cambridge claims that as a result, customers "have purchased EP Henry's paving stone products instead of purchasing Cambridge's paving stone products, proximately causing Cambridge to suffer a loss of sales and reputational injury." (Id. at ¶ 17.)

B. Procedural Background

Following this Court's earlier opinion ruling on Cambridge's motion to dismiss, Cambridge answered EP Henry's Complaint. [Docket Item 26.] In its Answer, Cambridge asserted a Counterclaim with one count against EP Henry for violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). (Id. at. ¶ 5) EP Henry later filed an Amended Complaint on August 9, 2018 [Docket Item 50], and, shortly after, Cambridge filed an Amended Answer and First Amended Counterclaim. [Docket Item 51.] EP Henry answered the First Amended Counterclaim and then filed the present motion for judgment on the pleadings pursuant to Rule 12(c), FED. R. CIV. P ., seeking to dismiss the First Amended Counterclaim. [Docket Items 52 & 53.] Cambridge filed a brief in opposition [Docket Item 55], and EP Henry filed a reply brief. [Docket Item 56.] The motion is now fully briefed and ripe for disposition without oral argument pursuant to Rule 78, FED. R. CIV. PRO .

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the pleadings "[a]fter the pleadings are closed-but early enough not to delay trial[.]" FED. R. CIV. P. 12(c). Judgment on the pleadings may be granted only where the moving party "clearly establishes" the absence of any "material issues of fact," and demonstrates that judgment should be entered in its favor "as a matter of law." DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d Cir. 2008) ; see also Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008).

In applying this standard, the Court...