FREDERICO v. HOME DEPOT

ALDISERT, Circuit Judge.

Plaintiff Janelle Frederico, for herself and on behalf of a class of similarly situated persons, appeals a judgment of the United States District Court for the District of New Jersey that dismissed her complaint against The Home Depot, Inc. Alleging fraud and breach of contract, the complaint was dismissed without prejudice pursuant to Rules 9(b) and 12(b)(6), Federal Rules of Civil Procedure.

Her action was originally filed in the Superior Court of New Jersey, Law Division, Middlesex County. Home Depot then removed the case to the District Court for the District of New Jersey. Frederico made no motion to remand to state court. The District Court decided that jurisdiction was proper under 28 U.S.C. § 1332(d), pursuant to the Class Action Fairness Act of 2005 ("CAFA"). After the matter reached us, we raised the issue of jurisdiction sua sponte and offered the parties an opportunity to respond by letter to our concerns.

A threshold matter requires our attention: we must first decide whether the District Court's dismissal without prejudice meets the finality requirement of 28 U.S.C. § 1291 to vest this Court with jurisdiction. We will decide that matter in the affirmative and proceed to consider: (1) which party has the burden of establishing federal jurisdiction in the removal process; (2) the extent of that party's burden of proof; and (3) whether diversity jurisdiction is established by the record before us. After finding federal jurisdiction, we will address the merits of the case. For the reasons that follow we will affirm the judgment of the District Court.

I.

On Saturday, August 6, 2005, Frederico rented a flatbed truck from a Home Depot store located in South Plainfield, New Jersey, owned and operated by Defendant. Home Depot regularly provides short-term leases of trucks to customers to assist customers with the transportation of large purchases. During the transaction, Frederico signed a Vehicle Delivery Agreement ("Agreement") that provided "Date and Time Out: 08/06/2005 6:23 pm" and "Date and Time Due In: 08/06/2005 7:38 pm." App. at 80. According to the Agreement, Frederico was to rent the truck for a total of 75 minutes. The District Court summarized other relevant terms of the Agreement:

Id. at 121.

Frederico alleges that she "returned the truck to Home Depot on August 6, 2005, but was informed by Defendant that the rental department was closed, that Home Depot had no after-hours rental facilities or procedures, and to re-return the truck the following morning." Compl. ¶ 8. She returned the next morning1 and paid $287.14, of which $269.00 represented the thirteen hours and forty-four minutes that she possessed the vehicle.

Frederico subsequently filed a class action complaint in state court, alleging that Home Depot breached its contract, violated the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1 et seq. (2005) ("NJCFA"), and committed common law fraud. Her complaint states:

Id. ¶ 18.

II.

Sua sponte, we raised the question of whether this court has jurisdiction over the District Court's judgment here entered "without prejudice."2 Frederico invoked the jurisdiction of this Court pursuant to 28 U.S.C. § 1291, which grants this Court jurisdiction over appeals from final decisions of district courts. Appellant's Br. at 1.

We conclude that the District Court's March 9, 2006 Order granting Home Depot's motion to dismiss, from which Frederico appeals, is a final order, notwithstanding its "without prejudice" modifier. "Guided by the Supreme Court's directive that we employ a `practical rather than a technical construction' of § 1291's finality requirement," we have held that a dismissal with leave to amend will be treated as a final order if the plaintiff has elected to "stand upon the original complaint." Shapiro v. UJB Financial Corp., 964 F.2d 272, 278 (3d Cir.1992) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)); see also Berke v. Bloch, 242 F.3d 131, 135 (3d Cir.2001) (concluding that it is "well-settled" in the Court of Appeals for the Third Circuit that an order dismissing a complaint without prejudice is final if the plaintiff has elected to stand on his complaint). Proceeding with appellate review here is consistent with the goal of the final judgment rule — to prevent piecemeal litigation — because, "if plaintiff cannot or will not bring a second action, there is no risk of multiple litigation." Trevino-Barton v. Pittsburgh Nat'l Bank, 919 F.2d 874, 878 (3d Cir.1990).

Under this standard, the dismissal of the complaint is final and appealable because Frederico clearly indicated an intent to stand on the original complaint. At no time during the District Court's consideration of Home Depot's motion to dismiss, which included initial and supplemental briefing as well as oral argument, did Frederico offer or seek to amend the complaint to address the pleading deficiencies noted by Home Depot. Instead, she repeatedly asserted that the allegations contained in the complaint were legally sufficient. See, e.g., Plaintiff's Memorandum in Law in Opposition to the Defendant's Motion to Dismiss, Frederico v. Home Depot, 2:05-cv-00579JAP, at 2, 2006 WL 385368 (D.N.J. January 3, 2006) ("The claims contained in Plaintiff's Complaint are sufficient as a matter of law, and should not be dismissed.").

After the District Court dismissed the complaint and the clerk's office officially terminated the action, Frederico did not seek to amend the complaint. Her only response was to file a notice of appeal. On appeal, she continues to argue that the factual allegations contained in her complaint are sufficient. See, e.g., Appellant's Br. at 9 ("The lower court's opinion is premised on the mistaken assumption that the Appellant/Plaintiff should have pled the evidence and facts underlying her Complaint."). Because Frederico has elected to stand on her original complaint rather than amend or refile it, the order dismissing the complaint without prejudice is final. See, e.g., Lucas v. Township of Bethel, 319 F.3d 595, 600 (3d Cir.2003) (dismissal without prejudice was final and appealable because plaintiff chose to stand on the complaint); Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n. 5 (3d Cir.1992) (holding that plaintiff elected to stand on complaint by failing to amend within specified time period); Tiernan v. Devoe, 923 F.2d 1024, 1031 (3d Cir.1991) (finding appellate jurisdiction over dismissal without prejudice based on statements made in letter brief filed after appeal was initiated); Letter from William O. Crutchlow, Counsel for Appellant Janelle Frederico, to the Office of the Clerk, United States Court of Appeals for the Third Circuit (July 3, 2007) ("In the instant matter, Appellant/Plaintiff stands by her complaint.").

III.

We now must decide whether this class action case removed to a federal court as a diversity matter properly meets the requisite amount in controversy set by CAFA. It is now settled in this Court that the party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court. Samuel-Bassett v. KIA Motors America, Inc., 357 F.3d 392, 396 (3d Cir.2004); see also Morgan v. Gay, 471 F.3d 469, 473 (3d Cir.2006) ("Under CAFA, the party seeking to remove the case to federal court bears the burden to establish that the amount in controversy is satisfied."). Our standard of review for issues of subject matter jurisdiction, including cases arising under CAFA, is plenary. Morgan, 471 F.3d at 472.

A.

We are aware that the quantum of proof to be used in ascertaining the requisite amount in removal cases sounding in diversity has caused some disagreement among the district courts of this circuit.3 We also note the concern that "`[c]ourts in the Third Circuit [have been] unencumbered by consistency in their characterization of a defendant's burden of proving the amount in controversy on a motion to remand.'" Samuel-Bassett, 357 F.3d at 396 (quoting Irving v. Allstate Indemnity Co., 97 F.Supp.2d 653, 654 (E.D.Pa.2000)). Since that concern was first voiced, two cases decided by this Court sought to bring clarity and consistency to the jurisprudence in our circuit: Samuel-Bassett, 357 F.3d at 392 (class action removal case arising prior to the enactment of CAFA), and Morgan, 471 F.3d at 469 (class action removal case arising under CAFA). It is to these cases we now turn.

1.

Samuel-Bassett, decided prior to the enactment of CAFA, articulated a template for addressing subject matter jurisdiction challenges by examining two Supreme Court cases: St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), and McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936).

In Red Cab, the plaintiff filed suit in state court and, in response to defendant's removal of the case, subsequently reduced its claim below the requisite amount. 303 U.S. at 285, 58 S.Ct. 586 (holding that "events occurring subsequent to removal which reduce the amount recoverable, whether beyond the plaintiff's control or the result of his volition, do not oust the district court's jurisdiction once it has attached"). The Supreme Court articulated what has become known as the "legal certainty test," observing that when a case is brought in federal court, "the sum claimed by the plaintiff controls if the claim is apparently made in good faith." Id. at 288, 58 S.Ct. 586. The case will be dismissed only if, "from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount." Id. at 289, 58 S.Ct. 586.

In McNutt, the plaintiff brought suit in federal court and defendant contested the assertion in the complaint that the requisite matter in controversy was involved. McNutt, 298 U.S. at 179-180, 56 S.Ct. 780. The Supreme Court held: "[T]he court may . . . insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence." Id. at 189, 56 S.Ct. 780.

This Court, in Samuel-Bassett, disentangled the "legal certainty" and "preponderance of the evidence" approaches of McNutt and Red Cab by distinguishing them on the grounds of whether the jurisdictional dispute surrounded factual matters: "In [McNutt], although a challenge to the amount in controversy had been raised in the pleadings, no evidence or findings in the trial court addressed the issue. In that respect Red Cab differs because these factual findings had been made." Samuel-Bassett, 357 F.3d at 397. As a result, in the many cases where disputes over factual matters are involved, the McNutt preponderance of the evidence standard is appropriate for resolving the dispute. By contrast, in those cases "when relevant facts are not in dispute or findings have been made," the district court should adhere to the "legal certainty test cited in such cases as Meritcare [Inc. v. St. Paul Mercury Insurance Co.], 166 F.3d 214[ (3d Cir.1993)]; Packard [v. Provident Nat'l Bank], 994 F.2d 1039[ (3d Cir. 1993)]; Bloom v. Barry, 755 F.2d 356 (3d Cir.1985); and Nelson v. Keefer, 451 F.2d 289 (3d Cir.1971)." Samuel-Bassett, 357 F.3d at 398. Under the legal certainty test, as it appears in those cases, "[w]hen it appears to a legal certainty that the plaintiff was never entitled to recover the jurisdictional amount, the case must be dismissed." Packard, 994 F.2d at 1046; see also Meritcare, 166 F.3d at 217 ("When it appears to a legal certainty that the plaintiff was never entitled to recover the minimum amount set by Section 1332, the removed case must be remanded. . . ."); Bloom, 755 F.2d at 358 ("[T]he court properly applied the `legal certainty' test with respect to the jurisdictional amount announced in [Red Cab]."); Nelson, 451 F.2d at 293 (citing Red Cab for the proposition that to determine "good faith," "[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal") (citing Jaconski v. Avisun Corp., 359 F.2d 931, 934 (3d Cir.1966)).

As Judge Norma L. Shapiro observed in Valley v. State Farm Fire and Cas. Co.:

504 F.Supp.2d 1, 3-4 (E.D.Pa.2006) (internal citations omitted).

2.

Two years after Samuel-Bassett, this Court was presented with our first class action diversity removal case brought under CAFA, Morgan v. Gay, 471 F.3d at 469. Morgan came to our Court on an appeal from a district court order granting plaintiff's motion to remand to state court, on the grounds that the amount in controversy required to support a diversity action under 28 U.S.C. § 1332(d)(2), an amount in excess of $5 million, had not been demonstrated.4 Id. at 471. In Morgan, the plaintiff expressly limited the amount in controversy to an amount lower than the jurisdictional requirement, stating in the complaint that "the total amount of such monetary relief for the class as a whole shall not exceed $5 million in sum or value." Id.

The claims in Samuel-Bassett, Red Cab and McNutt did not involve such a limitation. The different circumstances in Morgan called for a different approach to determine whether there was federal jurisdiction. Against the well-established backdrop that the plaintiff is the master of her own claim and thus "may limit [her] claims to avoid federal subject matter jurisdiction,"5 the panel concluded that where the plaintiff so limits her claim, "[t]he party wishing to establish subject matter jurisdiction has the burden to prove to a legal certainty that the amount in controversy exceeds the statutory threshold." Id. at 474. This "legal certainty" standard differs from that of the cases cited by Samuel-Bassett. In those cases, the challenger to subject matter jurisdiction had to prove, to a legal certainty, that the amount in controversy could not exceed the statutory threshold.6 See Packard, 994 F.2d at 1046; Meritcare, 166 F.3d at 217; Bloom, 755 F.2d at 358; Nelson, 451 F.2d at 293.

In Morgan, by contrast, we held that where the plaintiff expressly limits her claim below the jurisdictional amount as a precise statement in the complaint, applying the maxim that the plaintiff is the master of her own complaint, the proponent of the federal subject matter jurisdiction is held to a higher burden; that is, the proponent of jurisdiction must show, to a legal certainty, that the amount in controversy exceeds the statutory threshold.

B.

Thus, Morgan does not conflict with the reasoning and holding of Samuel-Bassett. The Samuel-Bassett dichotomy still paves the basic procedural avenue: "In many cases . . . disputes over factual matters may be involved. In resolving those issues, the McNutt preponderance of the evidence standard would be appropriate. Once the findings of fact have been made, the court may determine whether Red Cab's `legal certainty' test for jurisdiction has been met." 357 F.3d at 398.

Morgan provided a more complete roadmap. First, it added a precept that may be applied to all diversity class actions that have been removed: "Because `the complaint may be silent or ambiguous on one or more of the ingredients needed to calculate the amount in controversy,' `[a] defendant's notice of removal serves the same functions as the complaint would in a suit filed in federal court.'" Morgan, 471 F.3d at 474 (quoting Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 449 (7th Cir. 2005)). Second, Morgan erected guideposts in those cases where the plaintiff's complaint specifically (and not impliedly) and precisely (and not inferentially) states that the amount sought in a class action diversity complaint "for the class as a whole shall not exceed $5 million in sum or value." Id. at 471. In such cases "[t]he party wishing to establish subject matter jurisdiction has the burden to prove by a legal certainty that the amount in controversy exceeds the statutory threshold." Id.7

The distinction between a case governed by Morgan and a case governed by Red Cab and Samuel-Bassett is crystal clear. Morgan applies where the complaint specifically avers that the amount sought is less than the jurisdictional minimum. There, a defendant seeking removal must prove to a legal certainty that plaintiff can recover the jurisdictional amount. By contrast, Samuel-Bassett applies where the plaintiff has not specifically averred in the complaint that the amount in controversy is less than the jurisdictional minimum. There, the case must be remanded if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount.

Against this framework, we turn to the case before us.

IV.

"In removal cases, determining the amount in controversy begins with a reading of the complaint filed in the state court." Samuel-Bassett, 357 F.3d at 398. Here, Frederico does not state an exact sum sought in her complaint. Instead, her complaint "seeks, inter alia, damages and compensation to all class members from the Defendant, interest, punitive damages, costs of suit, treble damages and attorneys' fees as permitted under the Consumer Fraud Act, and any other damages deemed just and proper by the Court." Compl. ¶ 1. The class size alleged is "thousands, if not . . . tens of hundreds of thousands, of individuals." Id. ¶ 19. Frederico herself paid $287.14 for her use of the rental vehicle. Id. Exhibit B.

In addition, to determine whether the minimum jurisdictional amount has been met in a diversity case removed to a district court, a defendant's notice of removal serves the same function as the complaint would if filed in the district court. Morgan, 471 F.3d at 474. Thus, we examine Home Depot's contentions set forth therein:

Home Depot, Notice of Removal ¶¶ 20, 21 (filed Nov. 28, 2005).

In response to this Court's letter requesting that the parties "address whether the allegations in the complaint and notice of removal that `the matter in controversy exceeds the sum or value of $5 million dollars, exclusive of interest and costs,'" vested the District Court with jurisdiction, both parties filed replies. Letter from Marcia M. Waldron, Clerk for the United States Court of Appeals for the Third Circuit, to Counsel for Janelle Frederico and Home Depot (June 26, 2007).

In its reply, Home Depot essentially restates the averments set forth in Paragraphs 20 and 21 of its Notice of Removal. Frederico's reply states, in relevant part:

Letter from William O. Crutchlow, Counsel for Appellant Janelle Frederico, to the Office of the Clerk, United States Court of Appeals for the Third Circuit (July 3, 2007) (emphasis in original).

In Morgan, the plaintiff expressly limited, in her complaint, the damages sought to less than the jurisdictional threshold. 471 F.3d at 471. Here, by contrast, Frederico does not explicitly limit the amount in controversy to $5 million or less. Therefore, the case falls under the framework established by Samuel-Bassett.

Frederico's response to the Court's query regarding jurisdiction supplies us with no useful information with which to calculate the amount in controversy. She is playing her cards close to the vest: Her answer neither agrees with the facts alleged in the removal notice nor contests them. Nonetheless, Home Depot's argument for jurisdiction is based on allegations made initially by Frederico herself. Accordingly, the present posture of the case is one where the relevant facts are not expressly in dispute between the parties. Even where allegations are not challenged by the adversary, "the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of the evidence." McNutt, 298 U.S. at 189, 56 S.Ct. 780.

We do not believe such an insistence is necessary in this case. The District Court accepted and relied on the facts alleged in Home Depot's Notice of Removal when it concluded that it had diversity jurisdiction. App. at 120 n. 3. Furthermore, neither party contests the underlying facts and both instead rely upon them. Cf. McCann v. Newman Irrevocable Trust, 458 F.3d 281, 290 (3d Cir.2006) ("If a defendant does not challenge the [jurisdictional] facts alleged in the plaintiff's pleadings, a court may rule on the [Rule 12(b)(1)] motion by accepting these allegations as true."). We will therefore apply Red Cab's legal certainty test to the facts alleged by Frederico in her complaint and incorporated by Home Depot into its Notice of Removal.

Here Frederico is seeking $287.14 in compensatory damages.8 In addition, she is seeking punitive damages, which we must consider when calculating the amount in controversy. Golden v. Golden, 382 F.3d 348, 356 (3d Cir.2004). Under New Jersey law, Frederico can collect punitive damages of up to five times the compensatory damages. N.J.S.A. § 2A:15-5.14(b). Thus, she can collect $1,435.70 in punitive damages. Combined with compensatory damages, the punitive damages bring Frederico's total damages to $1,722.84.

We must also consider attorney's fees. See Suber v. Chrysler Corp., 104 F.3d 578, 585 (3d Cir.1997). Fees could be as much as thirty percent of the judgment. See In re Rite Aid Corp. Securities Litigation, 396 F.3d 294, 303 (3d Cir.2005) (noting study done by the Federal Judicial Center that found a median percentage recovery range of 27-30% for all class actions resolved or settled over a four-year period). Thirty percent of a $1,722.84 judgment is $516.85, bringing Frederico's total damages to $2,239.69.

Finally, $5 million, the jurisdictional threshold, divided by the total amount of damages sought for Frederico herself, $2,239.69, produces a requisite class size of 2,233 individuals. See 28 U.S.C. § 1332(d)(6) ("In any class action, the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds . . . $5,000,000. . . ."). This class size necessary to meet the requisite amount in controversy is well under the "tens of hundreds of thousands" of class members that appears in both Frederico's complaint and Home Depot's Notice of Removal.

Thus, we are satisfied that the Red Cab legal certainty test is met: as it does not appear to a legal certainty that Frederico cannot recover the jurisdictional amount, the case need not be remanded and we may proceed to the substantive merits of this appeal.

V.

In her complaint, Frederico alleged that Home Depot violated the NJCFA, committed common law fraud, and breached its contract with her. She contends that the District Court erred in granting Home Depot's motion to dismiss under Rules 12(b)(6) and 9(b), Fed.R.Civ.P.

Our review of the District Court's order is plenary. Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). Pursuant to Rule 12(b)(6), a court may dismiss a complaint that fails "to state a claim upon which relief can be granted." We accept as true all well-pleaded factual allegations and construe them in the light most favorable to the plaintiff. Santiago, 417 F.3d at 386; Hayes v. Gross, 982 F.2d 104, 105-106 (3d Cir.1992).

We conclude that Frederico failed to state a claim upon which relief may be granted.

A.

We turn first to Frederico's contentions that Home Depot committed common law fraud and violated the NJCFA by materially misrepresenting or omitting in the Agreement (1) the "terms, conditions, and `late' fees associated with the return of rental vehicles," (2) "that the `late' fees were not grossly excessive," and (3) "that its vehicle rental return procedures were intended to enable Home Depot to illegally profit" by causing delay in the return of rental vehicles. Compl. ¶¶ 37, 42, 40.

1.

To state a claim for fraud under New Jersey law, a plaintiff must allege (1) a material misrepresentation of fact; (2) knowledge or belief by the defendant of its falsity; (3) intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damage. Gennari v. Weichert Co. Realtors, 148 N.J. 582, 691 A.2d 350, 367-368 (1997).

The stringent pleading restrictions of Rule 9(b), Fed.R.Civ.P., apply to such a claim: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other conditions of mind of a person may be averred generally." Pursuant to Rule 9(b), a plaintiff alleging fraud must state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the "precise misconduct with which [it is] charged." Lum v. Bank of America, 361 F.3d 217, 223-224 (3d Cir.2004). To satisfy this standard, the plaintiff must plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation. See id. at 224.

We agree with the District Court that Frederico's fraud claim does not meet the stringent pleading requirements of Rule 9(b). Frederico does not state with particularity the circumstances of the alleged fraud or otherwise inject the requisite precision into her allegations. In her complaint, she only makes generic references to Home Depot's "excessive `late' rental fees,"9 Compl. ¶ 37, failure to disclose lack of after-hours rental return facilities or procedures, id. ¶ 39, and false representation that "vehicle rentals and late fees associated therewith would not accumulate beyond the time at which Plaintiff and class members returned or attempted to return rented vehicles to Home Depot," id. ¶ 41. None of these broad statements disclose the particular argument made on appeal as to the substance of the misrepresentation, namely, that Home Depot misrepresented "the actual hours during which vehicles could be returned so as to avoid or halt the accumulation of late fees."10 Appellant's Br. at 21-22.

Frederico did not provide such information in her complaint and thus did not meet her obligation to put Home Depot "on notice of the precise misconduct with which [it is] charged." Lum, 361 F.3d at 223-224. As the District Court observed, Frederico "fail[ed] to allege that any particular statement made by Defendant in the Agreement was in fact false," app. at 126, and:

Id. at 128.

We are mindful of Frederico's observation that without the benefit of discovery she could not learn the name of the employee with whom she interacted when attempting to return the truck. Appellant's Br. at 33 n. 2. Nevertheless, her complaint only refers generally to being "informed by Defendant," Compl. ¶ 8, and does not disclose the circumstances surrounding her discussion with, or any information about, the particular individual who informed her that the rental department was closed.11 Furthermore, although Frederico has subsequently stated in her briefs that her initial attempt to return the truck occurred prior to 10:00 PM, see, e.g., Appellant's br. at 15 ("[A]lthough the Appellant returned the vehicle to the store before 10 PM, Home Depot refused to accept the return."); Plaintiff's Memorandum in Law in Opposition to the Defendant's Motion to Dismiss, Frederico v. Home Depot, 2:05-cv-00579JAP, at 2, 2006 WL 385368 (D.N.J. January 3, 2006) (same), we do not consider after-the-fact allegations in determining the sufficiency of her complaint under Rules 9(b) and 12(b)(6). See Commw. of Pa. ex. rel Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.1988) ("`It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.'") (quoting Car Carriers, Inc. v. Ford Motor Corp., 745 F.2d 1101, 1107 (7th Cir.1984)); Unger v. National Residents Matching Program, 928 F.2d 1392, 1400 (3d Cir.1991).

For the foregoing reasons, Frederico's common law fraud claim was properly dismissed.

2.

To state a claim under the NJCFA, a plaintiff must allege that the defendant engaged in an unlawful practice that caused an ascertainable loss to the plaintiff. Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454, 462-465 (1994). The District Court found that Frederico failed to state such a claim. We agree.

a.

Frederico fails to allege Home Depot engaged in an unlawful practice. The NJCFA defines "unlawful practice" as:

N.J.S.A. § 56:8-2. "Unlawful practices fall into three general categories: affirmative acts, knowing omissions, and regulation violations." Cox, 647 A.2d at 462.

The "unlawful practice" engaged in by Home Depot, alleged by Frederico, is the "instituti[on] and implement[ation of] business processes intended to delay the return of rental vehicles so as to enable Home Depot to profit from charging Plaintiff and similarly situated consumers excessive `late' rental return fees." Compl. ¶ 28.

Frederico does not contend that Home Depot charged her late fees at a rate higher than that agreed upon and disclosed in the Agreement. Instead, as discussed above, her argument on appeal is that, "[u]nder the express terms of the Rental Agreement, the Appellant was required to return the vehicle to the Home Depot store before that store closed," the store hours were listed, showing that the store was open until 10 PM, and although she attempted to return the vehicle before 10 PM, she learned that the "rental department closes hours before the time listed on [the] Agreement." Appellant's Br. at 14, 15. From this sequence of events, Frederico argues that by refusing to accept the vehicle before the closing time listed on the Agreement, and instead instituting an "undisclosed condition" that vehicles must be returned before the rental department closes, "Home Depot deliberately made it impossible for consumers such as Ms. Frederico to return the rental vehicles pursuant to the terms of the Rental Agreement," resulting in unexpected late fees, and that such a practice "clearly falls within the deceptive, fraudulent, and unconscionable commercial practices prohibited by the [NJ]CFA." Id. at 15, 16.

Frederico's complaint, however, does not provide such detail. As the District Court observed:

App. at 130 (emphasis in original); see also Klein, 186 F.3d at 345 ("The complaint fails to attribute the statement to any specific member of . . . management. Fed. R.Civ.P. 9(b) requires, at a minimum, that the plaintiff identify the speaker of allegedly fraudulent statements.").

Frederico merely asserts in her complaint that Home Depot "violated the [NJ]CFA by its use of false and misleading representations in connection with the terms, conditions, and `late' fees associated with the return of rental vehicles." Compl. ¶ 33. Without information as to when Frederico attempted to return the vehicle, whether before the closing listed on the Agreement (10 PM) or after, the grounds for and contours of the alleged unlawful practice are unclear. As with the common law fraud claim discussed above, Home Depot is not placed on notice that the particular practice complained of is nondisclosure of the fact that there is a gap between the closing time of the store (as listed in the Agreement) and the closing time of the rental department, and that late fees accrue if a customer attempts to return the vehicle between those two times.

Frederico therefore failed to sufficiently allege an unlawful practice with requisite specificity.

b.

In addition, Frederico failed to show that Home Depot's alleged unlawful practice caused her loss. We agree with the District Court that:

App. at 130. That is, had she attempted to return the vehicle after the store's listed closing (10 PM), Home Depot's "unlawful conduct" of not disclosing that the rental department closed earlier would not have caused her to incur the late fees.

The District Court's dismissal of Frederico's NJCFA claim, therefore, was proper.

B.

Finally, we turn to Frederico's breach of contract claim. To state a claim for breach of contract, she must allege (1) a contract between the parties; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that the party stating the claim performed its own contractual obligations. See Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 210 F.Supp.2d 552, 561 (D.N.J.2002).

In her complaint, Frederico claims that Home Depot "breached its standard Vehicle Delivery Agreement with Plaintiff and members of the class. Plaintiff and members of the class suffered an ascertainable loss as a result of Defendant's breach of contract." Compl. ¶ 46. Frederico alleges that the Home Depot breached the Agreement for the truck rental by refusing to allow her to return the truck on August 6, 2005. She claims that an unspecified person at the Home Depot store informed her that the rental department was closed and that the store had no after-hours facilities, and that accordingly she has to wait until the next morning and pay $287.14 instead of $19.00.

We are satisfied with the District Court's dismissal of Frederico's contract claim. Both parties agree that the first element, the existence of a contract, is met by the Agreement. As the District Court found, however, Frederico failed to "provide allegations to support the second, third, and fourth elements of the breach of contract claim":

App. at 125.

With respect to the second and third elements, then, Frederico's complaint does not disclose how Home Depot breached the Agreement: she was charged the agreed upon amount for the time the vehicle was in her possession. Without knowing when Frederico first attempted to return the vehicle, it is unclear whether Defendant's refusal to accept the first return was in breach of the Agreement. Because it cannot be determined that Home Depot breached the agreement, it cannot be inferred that Frederico's damages "flowed" from the breach.

With respect to the fourth element, that the party alleging the breach performed its contract obligations, Frederico argues on appeal:

Appellant's Br. at 5-6.

Frederico, however, did not plead in her complaint that she returned the vehicle at the time specified in the Agreement (7:38 PM) or even before the store's closing (10 PM). Her complaint only states "Plaintiff returned the truck to Home Depot on August 6, 2005, but was informed by Defendant that the rental department was closed." Compl. ¶ 8. Contrary to Frederico's brief, the District Court was not requiring her to specify "the exact hour at which [she] attempted the rental return." Appellant's Br. at 33. Instead, she must simply plead that the time of the attempted return was made in accordance with the Agreement, and thus that she satisfied her own contractual obligations. This she did not do, and therefore the District Court's dismissal of Frederico's contract claim was proper.

* * * * *

For the foregoing reasons, the judgment of the District Court will be affirmed.