NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-2145
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HAROLD M. HOFFMAN,
Appellant
v.
NISSAN INFINITI LT
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-19-cv-01046)
District Judge: Honorable Katharine S. Hayden
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 19, 2021
Before: SHWARTZ, MATEY, and TRAXLER,* Circuit Judges.
(Filed March 23, 2021)
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OPINION**
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*
Honorable William B. Traxler, Circuit Judge, United States Court of Appeals for
the Fourth Circuit, sitting by designation.
**
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
MATEY, Circuit Judge.
We consider the District Court’s dismissal of Harold Hoffman’s suit against Nissan
Infiniti LT (“NILT”) alleging violations of the New Jersey Consumer Fraud Act
(“NJCFA”). Finding no error in the District Court’s decision, we will affirm.
I. BACKGROUND
Hoffman leased a car from NILT. After returning the vehicle at the end of the term,
NILT sent Hoffman a bill for “excess wear and use” totaling $1,194.00. (App. at 122.)
Hoffman refused to pay and filed a complaint against NILT in the Superior Court of New
Jersey alleging breach of contract and fraud. Soon after, NILT waived the charges on
Hoffman’s account and sent Hoffman a billing statement reflecting a balance of zero.
Unsatisfied, Hoffman amended his complaint to add claims under the NJCFA on behalf of
a putative class.
NILT removed the matter under 28 U.S.C. § 1332(d) and moved to dismiss.1 The
District Court held that Hoffman failed to allege an “ascertainable loss” as required by the
NJCFA and so granted the motion to dismiss. Hoffman now appeals,2 and we will affirm.
II. DISCUSSION
The NJCFA provides a private right of action to “[a]ny person who suffers any
ascertainable loss of moneys or property, real or personal, as a result of the use or
employment by another person of any method, act, or practice declared unlawful under this
1
After NILT removed, Hoffman amended his complaint a second time. This appeal
is from NILT’s motion to dismiss the second amended complaint.
2
The District Court had jurisdiction under 28 U.S.C. § 1332(d), and we have
jurisdiction to review the final order of dismissal under 28 U.S.C. § 1291.
2
act . . . .” N.J. Stat. Ann. § 56:8–19. Stating a claim under the NJCFA requires: “(1)
unlawful conduct; (2) an ascertainable loss; and (3) a causal relationship between the
defendants’ unlawful conduct and the plaintiff’s ascertainable loss.” Int’l Union of
Operating Eng’rs Loc. No. 68 Welfare Fund v. Merck & Co., 929 A.2d 1076, 1086 (N.J.
2007) (per curiam) (alterations omitted) (quoting N.J. Citizen Action v. Schering-Plough
Corp., 842 A.2d 174, 176 (N.J. Sup. Ct. App. Div. 2003)). Failure to adequately plead an
ascertainable loss leads to dismissal. See Weinberg v. Sprint Corp., 801 A.2d 281, 283 (N.J.
2002) (“[T]o have standing under the Act a private party must plead a claim of
ascertainable loss that is capable of surviving a motion for summary judgment.”).
The New Jersey Supreme Court interprets ascertainable loss under the NJCFA to
require a “quantifiable or measurable” injury and “not [a] hypothetical or illusory” harm.
See Thiedemann v. Mercedes-Benz USA, LLC, 872 A.2d 783, 792–93 (N.J. 2005). By the
time that Hoffman amended his complaint to add the NJCFA claim, Hoffman owed nothing
to NILT. Meaning that Hoffman’s loss was not even hypothetical or illusory—it was (and
remains) nonexistent. So Hoffman cannot sustain a cause of action under the NJCFA.
Hoffman offers two alternative loss calculations, neither persuasive. First, he argues
for the first time on appeal that NILT threatened to report the since-waived charges to credit
agencies, weakening his credit scores. But Hoffman waived this argument.3 Alpizar-Fallas
3
Hoffman points to a letter that NILT sent Hoffman as proof of such threat. But he
never presented this letter to the District Court. See Fassett v. Delta Kappa Epsilon (New
York), 807 F.2d 1150, 1165 (3d Cir. 1986) (citing Jaconski v. Avisun, 359 F.2d 931, 936 n.
11 (3d Cir. 1966)) (“The only proper function of a court of appeals is to review the decision
below on the basis of the record that was before the district court.”).
3
v. Favero, 908 F.3d 910, 918 n.4 (3d Cir. 2018). And nowhere in his amended complaint
does he allege such threats. Second, the attorney’s fees and costs that Hoffman incurred
suing NILT are not an ascertainable loss under the NJCFA. See Lettenmaier v. Lube
Connection, Inc., 741 A.2d 591, 594 (N.J. 1999) (“The damages are the ‘ascertainable
loss’ . . . . The non-damages are reasonable attorneys fees, filing fees and reasonable costs
of suit.”).
III. CONCLUSION
Hoffman does not allege an ascertainable loss under the NJCFA. For that reason,
we will affirm the District Court’s dismissal.
4