NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KERRY FEDER, on behalf of herself and the 

putative class,

Plaintiffs,

v.

WILLIAMS-SONOMA STORES, INC.,

Defendant.

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: OPINION

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: Civ. No. 2:11-03070 (WHW)

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Walls, Senior District Judge

This case is about a Williams-Sonoma, Inc. (“Williams-Sonoma”) employee allegedly 

requiring the plaintiff to provide her zip code as part of a credit card transaction. The plaintiff is 

suing under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act, N.J. Stat. Ann. 

§§ 56:12-14 to -18, (“TCCWNA”). The plaintiff requests leave to withdraw her invasion of 

privacy claim, which the Court grants. The defendant moves for dismissal of the complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Under Rule 78 of the 

Federal Rules of Civil Procedure, the motions are decided without oral argument. The 

defendant’s motion to dismiss the TCCWNA claim is granted; the plaintiff’s cross-motion for 

leave to file an amended complaint is denied.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a purchase the plaintiff, Kerry Feder, made at a Williams-Sonoma 

store using a credit card on May 16, 2011. According to Ms. Feder, a Williams-Sonoma 

employee required her to provide her zip code and recorded it into the electronic cash register. 

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Ms. Feder is bringing this suit as a putative class action on behalf of herself and “All New Jersey 

residents from whom Defendant requested and recorded personal identification information in 

conjunction with a credit card transaction in the six year period prior to the filing of Plaintiff’s 

complaint." Compl. ¶ 20. 

The plaintiff filed this lawsuit in Essex County Superior Court. The defendant removed 

the case to this Court on based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) and 

the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d). The defendant then filed a motion 

to dismiss the plaintiff’s complaint. The plaintiff opposes the motion to dismiss and has filed a 

cross-motion for leave to file an amended complaint.

STANDARD OF REVIEW

Disputes over whether a plaintiff has Article III standing must be resolved before 

proceeding to the merits of the plaintiff’s claims. Steel Co. v. Citizens for a Better Env’t, 523 

U.S. 83, 93-102 (1998); Bowers v. Nat’l Collegiate Athletic Ass’n, 346 F. 3d 402, 415-416 (3d 

Cir. 2003). Standing consists of satisfaction of three elements. First, Article III requires the 

plaintiff to establish injury in fact, which means “invasion of a legally protected interest which is 

(a) concrete and particularized ...; and (b) actual or imminent, not ‘conjectural’ or 

‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations 

omitted). Second, the plaintiff must establish a causal connection between the injury and the 

conduct complained of. Id. Finally, she must establish that it is likely that the injury will be 

redressed by a favorable decision. Id. at 561.

Courts should conduct a two-part analysis to evaluate a motion to dismiss for failure to 

state a claim. 

First, the factual and legal elements of a claim should be separated. The District 

Court must accept all of the complaint’s well-pleaded facts as true, but may 

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disregard any legal conclusions. Second, a District Court must then determine 

whether the facts alleged in the complaint are sufficient to show that the plaintiff 

has a “plausible claim for relief.” 

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009) (quoting Ashcroft v.Iqbal,

129 S. Ct. 1937, 1949-50 (2009)). A claim is plausible on its face “when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “Although ... we must take all of the 

factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion 

couched as a factual allegation.’” Id. at 1949-50 (citing Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 555 (2007)).

If a complaint fails to state a claim upon which relief can be granted, a plaintiff is 

ordinarily granted the right to amend the complaint. Foman v. Davis, 371 U.S. 178, 182 (1962). 

“Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, 

dilatory motive, prejudice and futility.” In re Burlington Coat Factory Securities Litig., 114 F.3d 

1410, 1434 (3d Cir. 1997) (citing Foman, 371 U.S. at 182). “An amendment is futile if the 

complaint, as amended, would not survive a motion to dismiss for failure to state a claim upon 

which relief could be granted.” Id.; accord. Smith v. Nat’l Collegiate Athletic Ass’n, 139 F. 3d 

180, 190 (3d Cir. 1998).

DISCUSSION

I. Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA)

The plaintiff bases the majority of her claim on the TCCWNA. The relevant allegations 

can be found in “Count One” of the complaint. In part, the plaintiff alleges that:

36. Defendant’s electronic credit card transaction forms into which 

consumers’ zip codes are recorded constitute consumer contracts and/or 

notices that are subject to TCCWNA. ...

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39. TCCNWA, at N.J.S.A. 56:12-15, prohibits any seller from offering, 

entering into, giving or displaying a written consumer contract or notice 

that violates a clearly established right of the consumer or responsibility of 

the seller as established by New Jersey or Federal law.

Compl. ¶¶ 36, 39. The Court finds that the complaint fails to sufficiently allege conduct in 

violation of the TCCWNA.

a. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1)

The defendant argues that the plaintiff lacks Article III standing under Rule 12(b)(1) 

because, according to the defendant, she has not alleged injury. Def. Br. at 29-37. The 

TCCWNA “provides a remedy even if a plaintiff has not suffered any actual damages.” Barrows 

v. Chase Manhattan Mortgage Corp., 465 F. Supp. 2d 347, 362 (D.N.J. 2006). The statute 

provides that “Any person who violates the provisions of this act shall be liable to the aggrieved 

consumer for a civil penalty of not less than $100.00 or for actual damages, or both ....” N.J. 

Stat. Ann. § 56:12-17. Legislatures may “enact statutes creating legal rights, the invasion of 

which creates standing, even though no injury would exist without the statute.” Linda R.S. v. 

Richard D., 410 U.S. 614, 617 n.3 (1973). Putting aside the merits of the claim that defendant’s 

conduct violated the TCCWNA, the plaintiff has alleged that she was personally subject to the 

conduct she alleges violates the TCCWNA. This is enough to establish the injury element of 

standing. See Barrows, 465 F. Supp. 3d at 362. 

b. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

To state a claim under TCCNWA the plaintiff must allege that the seller “offer[ed] ... or 

enter[ed] into any written consumer contract or g[a]ve or display[ed] any written consumer 

warranty, notice or sign ... which includes any provision that violates any clearly established 

legal right of a consumer or responsibility of a seller ....” N.J. Stat. Ann. § 56:12-15. To state a 

claim under the TCCWNA the plaintiff must identify a particular provision of the written 

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consumer contract that violates her rights. See Rivera v. Washington Mut. Bank, 637 F. Supp. 

2d 256, 268 (D.N.J. 2009); Skypala v. Mortgage Electronic Registration Systems, Inc., 655 F. 

Supp. 2d 451, 459 (D.N.J. 2009). The plaintiff fails to identify any provision of a written 

consumer contract which violates State or Federal law. 

The plaintiff alleges that the “credit card transaction form ... constitutes the written sale 

contract upon which Plaintiff’s TCCWNA claim is premised.” Pl. Br. at 20 (citing Compl. ¶¶ 

17, 36, 42). Whether this credit card transaction form constitutes a “written sale contract” is a 

legal conclusion, not a fact. Even assuming that the credit card transaction form constitutes a

“written consumer contract” to which the TCCWNA applies, the only writing the plaintiff 

alleges can be found on the credit card transaction form is information obtained from her credit 

card swipe and her zip code. The existence of the recorded zip code itself, which consists solely

of numbers, does not constitute a contract provision that violates the plaintiff’s rights. 

The plaintiff alleges that the requirement that she provide her zip code was conveyed to 

her orally and not in writing. It is this requirement that the plaintiff provide her zip code, not the 

recordation of the zip code itself, that the plaintiff alleges is the contract provision that violates 

her rights under New Jersey law, specifically N.J. Stat. Ann. § 56:11-17. The alleged 

requirement that plaintiff provide her zip code would only violate the TCCWNA if it was a 

provision of a written contract. Even if the credit card transaction form constitutes a written 

consumer contract, plaintiff has not alleged that this “contract” contains a written provision that 

violates State or Federal law.

Having determined that the plaintiff has failed to state a claim for violation of the 

TCCNWA based on that statute’s elements, it is not necessary for this Court to address whether 

she has sufficiently plead violation of N.J. Stat. Ann. § 56:11-17, Restrictions on Information 

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Required to Complete Credit Card Transactions. The plaintiff alleged violation of N.J. Stat. Ann. 

§ 56:11-17 solely as a predicate for her TCCNWA claim. She does not claim to have standing 

under N.J. Stat. Ann. § 56:11-17. 

II. Privacy Claim

The complaint asserted a violation of the plaintiff’s privacy. Compl. ¶¶ 44-50. In her 

Memorandum of Law in Opposition to Defendant’s Motion to Dismiss the plaintiff requested 

leave to withdraw this claim. Pl. Br. at 1, 5-6. The Court dismisses this claim based on the 

plaintiff’s request pursuant to Federal Rule of Civil Procedure 41(a)(2).

III. Cross-Motion to Amend

The plaintiff’s cross-motion for leave to file an amended complaint with respect to her 

TCCWNA claim is denied because the plaintiff’s proposed amendments would not cure the 

defects in her original complaint. The proposed amended complaint repeats verbatim the 

relevant TCCWNA allegations numbered 36 and 39 in the original complaint, renumbered 34 

and 37 in the proposed amended complaint. The plaintiff has proposed no additional factual 

support for her conclusory statements that the credit card transaction form is a written consumer 

contract, and she has not alleged that a written provision of this “contract” violates her rights. 

The amended complaint would fail as a matter of law for the same reasons as the original 

complaint.

CONCLUSION

The plaintiff’s TCCNWA claim and her invasion of privacy claim are dismissed. The

plaintiff’s request to amend the complaint is denied as futile.

s/ William H. Walls 

United States Senior District Judge

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