Silver v. Pep Boys-Manny, Moe & Jack of of Del., Inc.

DEBRA A. SILVER, Plaintiff, v. PEP BOYS-MANNY, MOE & JACK OF OF DELAWARE, INC.,JANE AND JOHN DOES 1-100, and XYZ CORPORATIONS 1-10, Defendants.

Civil Action No. 17-00018 (FLW)(LHG)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

March 29, 2018

**NOT FOR PUBLICATION**

OPINION

WOLFSON, United States District Judge:

Before the Court is the motion of Defendant Pep Boys-Manny, Moe, & Jack of Delaware, Inc. ("Pep Boys" or "Defendant") to dismiss the Second Amended Class Action Complaint of Plaintiff Debra A. Silver ("Plaintiff") for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff brings claims under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. ("CFA"), New Jersey Automotive Repair Regulations N.J.A.C. 13:45A-26C.1 et seq. ("Repair Regulations"), New Jersey's Truth-in-Consumer Contract, Warranty and Notice Act ("TCCWNA"), and the common law of breach of contract and unjust enrichment, arising from Defendant's alleged practice of offering auto parts for sale at its retail locations at different prices than those available online on Defendant's website. Plaintiff only partially opposes Defendant's Motion, opposing dismissal of Counts II and IV, two CFA claims. Accordingly, Defendant's motion is granted as to Counts I, III, V, VI, VII, VIII, IX, and X as unopposed, and as to Counts II and IV for the reasons set forth below. All claims in Plaintiff's Second Amended Complaint are therefore dismissed with prejudice.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

Plaintiff initially filed a Class Action Complaint and a First Amended Class Action Complaint against Pep Boys in New Jersey Superior Court, Law Division, Mercer County. On January 3, 2017, Pep Boys removed the action to this Court. On January 24, 2017, Pep Boys filed two motions in lieu of an Answer: (i) a Motion to Compel Arbitration and Dismiss the Case, and (ii) a Motion to Dismiss the First Amended Class Action Complaint. Plaintiff opposed the motions on February 21, 2017, and Pep Boys filed its reply papers on February 27, 2017.

On April 17, 2017, this Court held a status conference and determined that limited discovery was necessary on the issue of whether Plaintiff received Pep Boys' Agreement to Arbitrate. The Court entered an Order on May 22, 2017, administratively terminating Pep Boys' Motion to Compel Arbitration and Motion to Dismiss without prejudice, with the right to re-file the motions after the completion of discovery on the arbitration issue. After obtaining discovery on the arbitration issue, Pep Boys withdrew its arbitration defense as to the named Plaintiff, but maintained its arbitration defense as to the unnamed members of the class. On July 20, 2017, therefore, Pep Boys filed only its renewed Motion to Dismiss the First Amended Class Action Complaint for Failure to State a Claim. In response, on August 1, 2017, Plaintiff filed the Second Amended Class Action Complaint and Jury Demand.

Plaintiff's Second Amended Complaint alleges that she visited Pep Boys' Princeton store, located at 3505 Brunswick Pike, West Windsor, New Jersey, for service and to buy automobile parts on three occasions: September 23, 2015; April 9, 2016; and May 15, 2016. On September 23, 2015, Plaintiff visited the Princeton Store to have her 2006 Kia Sedona repaired through the installation of new rear disc brake rotors. SAC, ¶¶ 23-24. Pep Boys offered to sell Plaintiff two ProStop Rear Disc Brake Rotors ("Brake Rotors") for $173.56 exclusive of labor, and Plaintiffagreed to buy the parts from Pep Boys. Id. at ¶ 24. When Plaintiff later went to pick up her vehicle and pay for the work done, on September 25, 2015, Pep Boys' Princeton service department applied a "discount" that reduced the cost of the Brake Rotors from $173.56 to $147.53. Id. at ¶¶ 25-26. One year later, on September 18, 2016, Pep Boys' website advertised two ProStop Brake Rotors for $91.98, further reduced by a $23.00 promotion to $68.98, a price lower than that which Plaintiff paid on September 25, 2015.¹ Id. at ¶ 26. Plaintiff supports this allegation with a screenshot from Pep Boys' website taken on September 18, 2016.²

On April 9, 2016, Plaintiff visited the Princeton store's service department to have more work performed on her vehicle. On or about April 11, 2016, a representative from Pep Boys called Plaintiff and advised her of the work that needed to be done on her vehicle, including the installation of new parts, and Plaintiff agreed to buy the parts at the prices quoted. Id. at ¶ 30. When Plaintiff returned to the Princeton store to pick up her vehicle and pay for the work done, Pep Boys' service department applied a "discount" that reduced the costs of the parts previously quoted as follows: a) one ProCool New Water Pump for $106.41; b) two Front Struts for $454.23; c) two Front Strut Mounts for $210.91; and d) one Sway Bar Bushing for $13.82. On September 19, 2016, Pep Boys' website advertised the following prices for the same parts: a) one ProCool Water Pump for $85.99, minus a $21.50 promotion, for a total of $64.49; b) two Monroe OESpectrum Front Struts for $225.98, minus a $56.50 promotion, for a total of $169.48; c) two Front Strut Mounts for $103.98 ($51.99 each); and d) one MOOG Sway Bar Bushing for $11.99. Id. at ¶ 32. These prices were again lower than those which the Pep Boys service department ultimately charged the Plaintiff on April 11, 2016. Plaintiff again attaches to the Second Amended Complaint a series of screenshots of Pep Boys' website made on September 19, 2016, in support of her allegations.

Finally, on May 15, 2016, Plaintiff visited Pep Boys' Princeton store's service department to have work performed on her vehicle. Pep Boys offered to sell plaintiff a BWD Brake Light Switch ("Brake Light Switch") for $33.13, and Plaintiff agreed to buy the part from Pep Boys. Id. at ¶ 36. When Plaintiff returned to the Princeton store, on or about May 17, 2016,the service department applied a "discount" that reduced the cost of the Brake Light Switch from $33.13 to $28.16. Id. at ¶ 37. On September 18, 2016, Pep Boys' website advertised a BWD Stoplight Switch for $16.99, minus a $4.25 promotion, for a total of $12.74. ECF No. 25-1, Exhibit I. This price was again lower than that which Plaintiff paid on May 17, 2016, at Pep Boys' Princeton store. Id. at ¶ 38. Once again a screenshot of Pep Boys' website from September 18, 2016, is attached to the Second Amended Complaint to corroborate Plaintiff's allegations.

On the basis of these incidents, Plaintiff alleges that Pep Boys' routinely charged customers who use its service department higher prices for auto parts than the lowest advertised prices for those parts available on Pep Boys' website. Id. at ¶ 28. Plaintiff alleges that this conduct was misleading because Pep Boys "Service Code of Ethics" ("Code"), an internal Pep Boys document that is publicly available on the internet, states that "[s]ervice pricing must conform with the Pep Boys printed retail prices or Mitchell pricing if no Pep Boys pricing is stated." Id. at ¶ 29. Finally, Plaintiff alleges that, despite a public Price Match Policy, promising to match any local competitor's advertised price, and a policy of offering in-store "discounts" on final bills, Pep Boys never disclosed to Plaintiff, either over the phone or in person, that the same auto parts that she was purchasing from the Princeton store were available on Pep Boys' website at different and lower prices. Id. at ¶¶ 41-43.

On the basis of these allegations, Plaintiff's Second Amended Complaint raises claims under the CFA, Repair Regulations, TCCWNA, and the common law of breach of contract and unjust enrichment, divided across numerous counts. On August 29, 2017, Defendant moved to dismiss all counts of the Second Amended Complaint with prejudice. Plaintiff filed a partial opposition on October 2, 2017, consenting to the dismissal of all claims except those raised in Counts II and IV. ECF No. 33, Pl. Opp. Br. at 7 ("Plaintiff now submits this Opposition Brief indefense of Counts Two and Four from her Second Amended Class Action Complaint and Jury Demand and all other counts regarding same are hereby waived."). Defendant's Motion regarding Counts I, III, V, VI, VII, VIII, IX, and X is therefore granted as unopposed, and those counts are dismissed with prejudice.

In Count II, Plaintiff asserts that Defendant violated the CFA by making an affirmative misrepresentation. Plaintiff alleges that the language in Pep Boys' Code that "[s]ervice pricing must conform with the Pep Boys printed retail price or Mitchell pricing if no Pep Boys pricing is stated," which was publicly available on the internet, was an affirmative representation to Plaintiff, which was inherently deceptive and "misleads an average consumer into believing that the Pep Boys' service department was bound to give them Pep Boys' lowest advertised price for the part or accessory when that was not in fact the case" because lower prices were available online. Id. at ¶¶ 69-72. Plaintiff alleges that the ascertainable loss from this affirmative misrepresentation was the difference between the prices paid by Plaintiff for auto parts at the Pep Boys' Princeton store, on September 25, 2015; April 11, 2016; and May 17, 2016; and the prices advertised for those same auto parts on Pep Boys' website on September 18 and 19, 2016. Id. at ¶ 73.

In Count IV, Plaintiff asserts that Defendant violated the CFA by violating the Repair Regulations. Plaintiff alleges that Pep Boys violated N.J.A.C. 13:45A-26C.2(a)1, 13:45A-26C.2(a)5 and 13:45A-26C.2(a)13, by failing to disclose that prices for auto parts were different in Pep Boys' stores and on its website; applying discounts on customers' final bills which reinforced Plaintiff's impression that she was receiving Defendant's lowest advertised price for the parts; and disseminating its Code over the internet, which contained the untrue statement that "...