LEXIS 14393; August 25, 1999, Decided
August 25, 1999, Filed; August 26, 1999, Entered on the Docket
DISPOSITION: ADT's motion for summary judgment pursuant to Rule 56 granted.
PROCEDURAL POSTURE: Defendant security company moved for judgment on the
pleadings under Fed. R. Civ. P. 12(c) or, in the alternative, for summary
judgment under Fed. R. Civ. P. 56 to dismiss plaintiff corporation's
complaint alleging violation of the New Jersey Unfair Trade Practices Act,
N.J. Stat. Ann. § 56:8-1 et seq.
OVERVIEW: Plaintiff corporation and defendant security company agreed that
defendant would install an alarm system in plaintiff's warehouse. The
agreement stated the system could only work if the telephone lines were
operational. Criminals cut the telephone lines before burglarizing the
warehouse, and the monitoring system thus transmitted no signals. Plaintiff
brought an action under New Jersey Unfair Trade Practices Act, N.J. Stat.
Ann. § 56:8-1 et seq., claiming that defendant misrepresented its product.
Defendant moved for judgment on the pleadings under Fed. R. Civ. P. 12(c) or
for summary judgment under Fed. R. Civ. P. 56. The court treated the motion
as one for summary judgment and granted the motion. Plaintiff failed to show
that defendant made affirmative misrepresentations in its sales brochure or
in the agreement between the parties. The agreement sufficiently informed
plaintiff that the system would fail if the telephone lines were not

OUTCOME: The court granted defendant's motion for summary judgment;
plaintiff did not prove the existence of a genuine issue of material fact
because the evidence showed that defendant made no affirmative
misrepresentations about the product.

COUNSEL: Jim H. Fields Jr., Esq., COZEN and O'CONNOR, Westmont, New Jersey.

Timothy I. Duffy, Esq., McELROY, DEUTSCH & MULVANEY, Morristown, New Jersey.

JUDGES: Harold A. Ackerman, U.S. District Judge.

OPINIONBY: Harold A. Ackerman


Date: August 25, 1999

ACKERMAN, District Judge:

This matter comes before the court on a motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure ("Rule") 12(c) or, in the
alternative, for summary judgment pursuant to Rule 56 to dismiss the
complaint filed by defendant ADT Security Systems, Inc. ("ADT"). For the
reasons set forth below, ADT's motion for summary judgment is granted.

Subject matter jurisdiction is predicated on diversity of citizenship
pursuant to 28 U.S.C. § 1332. The complaint indicates that the plaintiff,
J.R. Tobacco of America, Inc. ("J.R. Tobacco"), is a corporation organized
under the laws of New Jersey, where it also has its principal place of
business. The defendant is a Delaware corporation, having its principal
place of business in Florida. The amount in controversy appears [*2] to
exceed $ 75,000. This fact, along with the apparent complete diversity of
citizenship, supports subject matter jurisdiction under § 1332. n1

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n1 This court notes that the plaintiff's opposition brief failed to comply
with the dictates of Local U.S. District Court Rule 7.2(b), which plainly
instructs that "any brief shall include a table of contents and a table of
authorities." The plaintiff has also appended three affidavits to its
opposition brief. This again is inappropriate, as Local Rule 7.1(c)(1)
specifically mandates that a "brief is to be a separate document for
submission to the Court. . . ." In this District, briefs are not filed with
the Clerk of the Court. Unlike briefs, affidavits and declarations are part
of the record in this case, and thus, must be filed with the Clerk's office.
Accordingly, simply appending affidavits, declarations, or other exhibits to
briefs, rather than filing them separately with the Clerk's office, is

Far too often, this court has been presented with papers submitted by
parties and their counsel who evidently have only a passing acquaintance
with our Local Rules and practices. Counsel in this case are forewarned that
this court will not hesitate to impose appropriate sanctions for further
violations of these mandates.

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Rule 12(c) provides as follows:

After the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings. If, on a motion for
judgment on the pleadings, matters outside the pleadings are presented to
and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56, and all parties
shall be given reasonable opportunity to present all material made pertinent
to such a motion by Rule 56.

Under this rule, a motion for judgment on the pleadings will not be granted
"'unless the movant clearly establishes that no material issue of fact
remains to be resolved and that he is entitled to judgment as a matter of
law.'" Kruzits v. Okuma Mach. Tool, Inc., 40 F.3d 52, 54 (3d Cir. 1994)
(quoting Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d
Cir. 1988) (quotation omitted)). Put another way, to dismiss plaintiff's
complaint, or a portion thereof, under Rule 12(c) the court is "required to
determine that 'no set of facts could be adduced to support plaintiff's
claim for relief.'" [*4] Institute for Scientific Info., Inc. v. Gordon &
Breach, Science Publishers, Inc., 931 F.2d 1002, 1005 (3d Cir. 1991)
(quoting Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir.
1980)). When considering a motion for judgment on the pleadings, the court
is required to view the facts presented in the pleadings and the inferences
to be drawn therefrom in the light most favorable to the non-moving party.
See 931 F.2d at 1004; Jablonski, 863 F.2d at 290-91.

In this case, both parties have submitted certifications and affidavits in
support of and in opposition to the defendant's motion, despite the fact
that a court may not ordinarily consider matters outside the pleadings on a
Rule 12(c) motion. Under these circumstances, and particularly since the
plaintiff has acknowledged that the fundamental legal and factual issues
before the court are the same regardless of whether the motion is analyzed
under Rule 12(c) or Rule 56, n2 this court will convert the present motion
to one for summary judgment. See, e.g., Woods Corp. Assocs. v. Signet Star
Holdings, Inc., 910 F. Supp. 1019, 1032 (D.N.J. 1995).

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n2 The plaintiff stated in its opposition brief as follows: "In plaintiff's
view, it makes no difference whether the court decides this motion based
Upon Rule 12(c) or Rule 56, as the fundamental legal and factual analysis
for both would be similar. Plaintiff's Brief in Opposition to Defendant ADT
Security Services, Inc's Motion for Judgment on the Pleadings Pursuant to
Federal Rule of Civil Procedure 12(c) or, in the Alternative, For Summary
Judgment ("Plaintiff's Opp. Brf.") at 2 n.1.

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Pursuant to Rule 56(c), a motion for summary judgment will be granted
if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue of material fact and that the moving party is entitled to a judgment
as a matter of law.

See also Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989); Chipollini v.
Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). In other words,
"summary judgment may be granted if the movant shows that there exists no
genuine issue of material fact that would permit a reasonable jury to find
for the nonmoving party." Miller v. Indiana Hosp., 843 F.2d 139, 143 (3d
Cir. 1988). All facts and inferences are construed in the light most favorab
le to the non-moving party. See Peters v. Delaware River Port Auth. of Pa.
and N.J., 16 F.3d 1346, 1349 (3d Cir. 1994).

The substantive law will identify which facts are "material." See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct.
2505 (1986). Therefore, "only disputes over facts that might affect the
outcome of the suit under the governing [*6] law will properly preclude the
entry of summary judgment." Id. An issue is "genuine" if a reasonable jury
could possibly hold in the nonmovant's favor with regard to that issue. Id.

The party seeking summary judgment always bears the initial burden of
production, i.e., of making a prima facie showing that it is entitled to
summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed.
2d 265, 106 S. Ct. 2548 (1986). This may be done either by demonstrating
there is no genuine issue of fact and that the moving party must prevail as
a matter of law, or by demonstrating that the nonmoving party has not shown
facts relating to an essential element of the issue for which it bears the
burden. Id. at 322-23. Once either showing is made, the burden shifts to the
nonmoving party who must demonstrate facts supporting each element for which
it bears the burden as well as establish the existence of genuine issues of
material fact. Id. at 324.

However, at the summary judgment stage, a court may not weigh the evidence
or make credibility determinations; these tasks are left to the fact-finder.
See Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998
F.2d 1224, 1230 (3d Cir. 1993). [*7] Therefore, to raise a genuine issue of
material fact, the summary judgment opponent "'need not match, item for
item, each piece of evidence proffered by the movant,' but simply must
exceed the 'mere scintilla' standard." Id.; see also Anderson, 477 U.S. at
252 ("The mere existence of a scintilla of evidence in support of the
[nonmovant's] position will be insufficient; there must be evidence on which
the jury could reasonably find for the [nonmovant].").

It is clear, however, that if a moving party satisfies its initial burden of
establishing a prima facie case for summary judgment, the opposing party
"must do more than simply show that there is some metaphysical doubt as to
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Rather, "there must be
sufficient evidence for a jury to return a verdict in favor of the
non-moving party; if the evidence is merely colorable or not significantly
probative, summary judgment should be granted." Armbruster v. Unisys Corp.,
32 F.3d 768, 777 (3d Cir. 1994).


During the summer of 1995, plaintiff J.R. Tobacco sought [*8] to purchase
an alarm system for its newly opened warehouse and operating facility
located in Whippany, New Jersey. After discussions with ADT regarding its
particular needs for an alarm system, J.R. Tobacco retained ADT to design
the system and provide alarm monitoring services. Accordingly, on June 17,
1995, J.R. Tobacco and ADT entered into a Commercial Sales
Proposal/Agreement ("Agreement"), whereby ADT agreed to install and monitor
a burglar alarm system at J.R. Tobacco's Whippany facility. Among other
provisions, the Agreement stated as follows:
The Customer understands that if a digital communicator is installed under
this Agreement, it uses standard telephone lines as the transmission mode of
sending signals and eliminates the need for dedicated telephone facilities
and the large cost increases frequently imposed on such facilities. Customer
also understands that ADT does not receive signals when the transmission
mode is or becomes non-operation and that signals from the digital
communicator cannot be received if the transmission mode is cut, interfered
with or otherwise damaged.

Certification of John K. MacDonald, Exh. A at P A(B) (boldface in original).

In May, 1997, J.R. Tobacco's Whippany facility was burglarized by unknown
criminals. The telephone lines were severed prior to the burglary and as a
result, no monitoring signals were transmitted to ADT's Central Monitoring
System to indicate the breach of security.

J.R. Tobacco brought the present suit against ADT under the New Jersey
Unfair Trade Practices Act, N.J.S.A. § 56:8-1 et seq., also known as the
Consumer Fraud Act (hereinafter referred to as the "CFA"). Plaintiff claims
that ADT's representatives made misrepresentations concerning the quality
and capability of its alarm system. Additionally, plaintiff claims that
regardless of the fact that they had read the Agreement, including the
provision informing it of the possibility of a disruption in security
monitoring in the event of an interruption of telephone services, it
nevertheless believed that they would receive continuous security from their
alarm system. Plaintiff also asserts that they were not made aware of the
availability of a back-up cellular system which would cure the potential
problem of cut telephone wires, thereby disrupting service.


The CFA provides, in relevant part, [*10] as follows:
The act, use or employment by any person of any unconscionable commercial
practice, deception, fraud, false pretense, false promise,
misrepresentation, or the knowing concealment, suppression, or omission of
any material fact with intent that others rely upon such concealment,
suppression, in connection with the sale or advertisement of any merchandise
or real estate, or with the subsequent performance of such person as
aforesaid, whether or not any person has in fact been misled, deceived or
damaged thereby, is declared to be an unlawful practice.

N.J.S.A. § 56:8-2. The CFA was promulgated to protect consumers "by
eliminating sharp practices and dealings in the marketing of merchandise and
real estate." Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 263,
696 A.2d 546 (1997). Its provisions are to be applied broadly in order to
accomplish its remedial purpose. See id. at 264; Cox v. Sears Roebuck & Co.,
138 N.J. 2, 15, 647 A.2d 454 (1994). As the New Jersey Supreme Court has
recognized, a person violates the CFA when he commits an "unlawful act," as
defined in the statute. See Cox, 138 N.J. at 17. "Unlawful [*11] practices
fall into three general categories: affirmative acts, knowing omissions, and
regulation violations." Id. (citing N.J.S.A. §§ 56:8-2 and -4). When the
alleged consumer fraud violation consists of an affirmative act such as a
misrepresentation, the plaintiff need not prove that the defendant intended
to commit an unlawful act. See id.

In opposing ADT's summary judgment motion, J.R. Tobacco relies heavily on
the affidavit of Maureen Colleton, the manager of all J.R. Tobacco
facilities, including the Whippany facility. Boiled down to its essence,
J.R. Tobacco, through Ms. Colleton's affidavit, claims that ADT represented
that its alarm system would provide protection at all times. Affidavit of
Maureen Colleton ("Colleton Aff.") at P 7. She further states that "ADT
neither discussed with J.R. Tobacco nor mentioned in its advertising a
potential problem or loss of protection from the alarm system if the
telephone lines were cut or compromised." Id. at P 8. J.R. Tobacco also
claims that "at no time prior to the burglary was J.R. Tobacco aware of the
fact that its system would be totally useless if the telephone lines were
compromised." Plaintiff's [*12] Opp. Brf. at 4.

What is striking about J.R. Tobacco's papers is the absolute lack of any
reference to a specific representation made by ADT personnel concerning the
operation of the alarm system in the event that telephone wires were
compromised. What is also striking about the plaintiff's papers, including
the affidavit of Ms. Colleton, is the evident care taken in crafting their
words. In its brief, the plaintiff goes to great lengths to persuade this
court that this case concerns affirmative misrepresentations, rather than
omissions, on the part of ADT. Yet, when the issue focuses on what
representations were made concerning the telephone lines, J.R. Tobacco's
proofs make clear that omissions are precisely what it is concerned with.
For example, when Ms. Colleton states in her affidavit that "ADT neither
discussed with J.R. Tobacco nor mentioned in its advertising a potential
problem or loss of protection from the alarm system if the telephone lines
were cut or compromised," she does not speak of an affirmative
misrepresentation, but at most an omission. Further, when J.R. Tobacco
claims in its brief that "at no time prior to the burglary was J.R. Tobacco
aware of the fact that [*13] its system would be totally useless if the
telephone lines were compromised," it again concerns what ADT supposedly
failed to inform the plaintiff about, not any affirmative misrepresentation
on the part of ADT. n3

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n3 Indeed, much in J.R. Tobacco's papers contain broad, sweeping statements
concerning their expectations rather than specific representations made by
ADT. For instance, the plaintiff states that it completely relied on ADT's
expertise in providing "a premier system." Plaintiff's Opp. Brf. at 3. Yet,
plaintiff fails to explain who, if anyone, made that statement or the
context in which it was said. Similarly, J.R. Tobacco states that it
"believed it was purchasing the best alarm system available for its
facility," but that it did not receive a "state of the art system." Id. at
3, 5. But again, J.R. Tobacco fails to identify who, if anyone, made these
representations, or for matter, whether these were simply expectations on
its part.

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A close reading of J.R. Tobacco's papers reveals [*14] that the only
alleged misrepresentation made affirmatively by ADT was its promise that the
plaintiff would receive protection "24 hours a day, 7 days a week." That
"promise" was apparently made by ADT in a promotional brochure. A review of
the brochure, however, does not support plaintiff's far more general
statement that ADT promised around-the-clock protection. Specifically, the
brochure informed plaintiff of the following: (a) "24-Hour Alarm Signal
Monitoring for Home and Business"; (b) "officers on duty at each center,
24-hours a day"; (c) "ADT security operators on duty 24-hours a day 7 days a
week"; and (d) "ADT professionals are dedicated, trained operators, using
advanced electronic equipment, maintaining a continuous watch, 24 hours a
day, seven days a week". All of these representations relate to the
availability of assistance at ADT's customer service center. It is clearly
beyond any reasonable consumer's expectation, reading this brochure, that
ADT promised to provide complete and continuous protection without
limitation and under any circumstance.

The plaintiff's claim that back-up capability was also promised is
apparently based on a sentence in the brochure stating [*15] that a benefit
of the Customer Service Center was the existence of "Reliable Back-up
stand-by computers, battery banks, power generation." This, however, clearly
refers to back-up capability available at the Customer Service Center, not
to the individual customer's alarm system. The information about back-up
capability is contained within a laundry list of qualities under the heading
of "Customer Service Centers." Hence, this court cannot find any
misrepresentation by ADT in either its brochure or in the Agreement that
constitutes an unlawful act which can sustain the plaintiff's cause of
action under the CFA.

It is also clear to this court that J.R. Tobacco's claim that it was not
aware that the alarm system would not operate if the telephone lines were
compromised is without merit. First, the plaintiff fails to identify any
specific representation made by anyone from ADT concerning this matter. More
importantly, the Agreement specifically advised the plaintiff of the
following: "Customer also understands that ADT does not receive signals when
the transmission mode is or becomes non-operation and that signals from the
digital communicator cannot be received if the transmission mode [*16] is
cut, interfered with or otherwise damaged." n4 J.R. Tobacco acknowledged in
its papers that it read this provision before signing the Agreement. The
Agreement, coupled with the plaintiff's admission that it read the
disclaimer, belies any assertion on the part of J.R. Tobacco that it was not
made aware of the potential problem with the security system if the
telephone lines were disturbed. This court is unable to see how J.R. Tobacco
can now assert that it was not aware of this potential problem, or that ADT
somehow is guilty of consumer fraud, when it specifically advised the
plaintiff of this contingency.

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n4 This court notes that J.R. Tobacco has not alleged a breach of contract
cause of action, no doubt based on the numerous exculpatory and limitation
of liability provisions found in the Agreement. The fact that the plaintiff
has shied away from alleging a breach of contract cause of action, however,
does not preclude this court from reviewing what representations and
disclosures were made in the Agreement itself.

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Plaintiff relies heavily on Lingar v. Live-In Companions, Inc., 300 N.J.
Super. 22, 692 A.2d 61 (App. Div. 1997), for the proposition that they may
pursue a claim based on pre-contract misrepresentations. In Lingar the court
allowed the plaintiff to pursue a claim for misrepresentations made to them
under the CFA when the services of the home care company they had contracted
with were seriously deficient. The care giver supplied by the defendant
abandoned the plaintiff's husband, the individual he was assigned to care
for, and stole property from the plaintiff as well. It was later discovered
that the care giver had an extensive criminal record. The court found that
the statements made by the defendant both orally and in its brochure
regarding the quality of care were sufficient to support a claim for
consumer fraud under the CFA.

Lingar is distinguishable from the case at bar because the alleged
misrepresentations made by ADT here were addressed specifically in ADT's
promotional materials and in its Agreement. The alarm system in this case
operated as it was represented by ADT. Plaintiff's belief that the alarm
system and the monitoring services were otherwise than they [*18] had been
described in the contract are unreasonable and have no force to sustain a
claim under the CFA.

The cases cited by plaintiff as standing for the proposition that a
plaintiff may seek recovery against alarm companies based upon a state's
consumer protection state all involve the failure of the alarm system to
operate as represented by the alarm company. See Gill v. Rollins Protective
Serv. Co., 836 F.2d 194 (4th Cir. 1987); Pope v. Rollins Protective Serv.
Co., 703 F.2d 197 (5th Cir. 1983); Rollins, Inc. v. Heller, 454 So. 2d 580
(Fla. App. Ct. 1984); Corral v. Rollins Protective Serv. Co., 240 Kan. 678,
732 P.2d 1260 (Kan. 1987); Rinehart v. Sonitrol of Dallas, Inc., 620 S.W.2d
660 (Tex. App. Ct. 1981). These cases are distinguishable from the instant
case because the alarm system here did not fail to operate as represented;
indeed, it operated precisely as represented.

While this court recognizes that the CFA was designed to provide broad
protection to the consumers of New Jersey, see Gennari v. Weichert Co.
Realtors, 288 N.J. Super. 504, 533, 672 A.2d 1190 (App. Div. 1996), aff'd as
modified, [*19] 148 N.J. 582 (1997), it was not designed to remedy the
disappointments of parties who have freely contracted. Both parties were
sophisticated businesses, regardless of any protestations to the contrary.
While J.R. Tobacco may not have been familiar with the intricacies of alarm
systems and security services, there is no indication that it entered into
the contract without adequate knowledge of the shortcomings of the system.
In short, J.R. Tobacco has failed to raise a genuine issue of material fact
that ADT made any misrepresentations sufficient to support a claim under the


For the reasons stated above this court will grant ADT's motion for summary
judgment pursuant to Rule 56.


Date: August 25, 1999

ACKERMAN, District Judge:

THIS MATTER having come before the court on a motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c) or, in
the alternative, for summary judgment pursuant to Rule 56 filed by ADT
Security Systems, Inc., defendant in the above-captioned action; and the
court having reviewed the moving papers and all other papers submitted in
support thereof [*20] and all papers submitted in opposition thereto; and
for the reasons expressed in an opinion issued on this same day; and for
good cause shown;

IT IS ON THIS 25th day of August, 1999;

ORDERED that defendant's motion for summary judgment pursuant to Rule 56
dismissing the complaint is hereby GRANTED.

Harold A. Ackerman, U.S. District Judge