United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
matter presents the following question to the Court: Does a
plaintiff state a cause of action for violation of the New
Jersey Consumer Fraud Act when he or she alleges that a
Pennsylvania ski resort advertised its business in New Jersey
but failed to include any information in its advertisements
regarding the protections from tort liability the business
enjoyed under Pennsylvania law? For the reasons that follow,
the Court finds that such a claim is not cognizable under the
New Jersey Consumer Fraud Act.
Introduction and Procedural History
above captioned matter was first removed from the Superior
Court of New Jersey, (Doc. 1), and then transferred by the
District Court for the District of New Jersey to this Court,
(Docs. 10). Plaintiffs, Gyl and Ronald Cole, represented by
counsel, bring a two count Complaint against Camelback
Mountain Ski Resort ("Camelback"), and two John Doe
maintenance companies, (Doc. 1-1), concerning injuries that
Gyl Cole sustained while skiing at Defendant Camelback's
skiing facility. Plaintiffs, both residents of New Jersey,
allege that Defendants are liable both for negligence (Count
I), and for violation of the New Jersey Consumer Fraud Act,
N.J. Stat. Ann. § 56:8-2, (Count II). Defendant
Camelback now moves to dismiss Count II of Plaintiffs'
Complaint. (Doc. 20).
Complaint alleges the following facts:
Gyl and Ronald Cole, are husband and wife and reside in
Waretown, New Jersey. (Doc. 1-1). Camelback is a snow skiing
resort facility located in Pennsylvania. (Id. at
¶ 14). According to Plaintiffs' Complaint, Camelback
advertises its business heavily in New Jersey through a
variety of forms of media. (Id.). Camelback's
advertisements, however, contain no information that, under
Pennsylvania law, skiing facilities enjoy
"immunity" from liability for the injuries patrons
sustain while skiing. (Id.). On March 15, 2014,
presumably after viewing one of Camelback's
advertisements, Gyl and Ronald Cole went skiing at
Camelback's skiing facility. (Id. at
¶¶ 1, 3-4). While skiing on one of the black
diamond slopes, Gyl Cole slammed into a six inch metal pipe
and sustained severe injuries. (W.at ¶3).
Standard of Review
complaint must be dismissed under Federal Rule of Civil
Procedure 12(b)(6) if it does not allege "enough facts
to state a claim to relief that is plausible on its
face." Bell Ml. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcrott v, Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiffs
obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of a cause of
action's elements will not do." Twombly,
550 U.S. at 555 (internal citations and alterations omitted).
In other words, "[factual allegations must be enough to
raise a right to relief above the speculative level."
id. A court "take[s] as true all the factual
allegations in the Complaint and the reasonable inferences
that can be drawn from those facts, but...disregard[s] legal
conclusions and threadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements." Ethypharm S.A, France v. Abbott
Laboratories, 707 F.3d 223, 231 n.14 (3d Cir. 2013)
(internal citations and quotation marks omitted).
Twombly and Iqbal require [a court] to take
the following three steps to determine the sufficiency of a
complaint: First, the court must take note of the elements a
plaintiff must plead to state a claim. Second, the court
should identify allegations that, because they are no more
than conclusions, are not entitled to the assumption of
truth. Finally, where there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
Connelly v. Steel Valley Sen. Dist, 706 F.3d 209,
212 (3d Cir. 2013).
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged-but it has not show[n]-that the pleader is entitled
to relief." Iqbal, 556 U.S. at 679, 129 S.Ct.
at 1950 (internal citations and quotation marks omitted).
This "plausibility" determination will be a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."