D. New Jersey. Richard M. Zelma v. Wonder Group Inc (Oct. 22, 2025)

Case details
Country
United States
Jurisdiction
New Jersey (NJ)
Court
New Jersey Supreme Court
Decided
Oct. 22, 2025
RICHARD M. ZELMA, Plaintiff, v. WONDER GROUP INC., a/k/a;..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2976546Only the Westlaw citation is currently available.NOT FOR PUBLICATIONUnited States District Court, D. New Jersey.RICHARD M. ZELMA, Plaintiff,v.WONDER GROUP INC., a/k/a; f/k/a REMARKABLE FOODS, INC., a/d/b/a, FOOD TRUCK INC. et al., Defendants.No. 25cv3232 (EP) (CF)|Filed 10/22/2025OPINIONEvelyn Padin, U.S.D.J.*1 Plaintiff Richard M. Zelma brought this action inthe Bergen County Superior Court, Law Division, allegingfederal and state law violations stemming from two textmessages he received from Defendant Wonder Group, Inc.(“Defendant” or “Wonder”). D.E. 1, Ex. A (“Complaint”or “Compl.”). The crux of Plaintiff's Complaint is thatDefendants1 violated the Telephone Consumer ProtectionAct (“TCPA”), 47 U.S.C. § 227 et seq., by sending him twotext messages that contained verification codes.Defendant now moves to dismiss the Complaint pursuantFederal Rule of Civil Procedure 12(b)(6). D.E. 8 (“Motion”).Plaintiff opposes the Motion. D.E. 9 (“Opposition” or“Opp'n”).2 Defendant replies. D.E. 10 (“Reply”). In addition,Defendant moves for sanctions on the basis that Plaintiffhas manufactured this lawsuit and because his claims arefrivolous. D.E. 11 (“Motion for Sanctions” or “SanctionsMot.”). That motion is fully briefed.3 The Court decides bothmotions without oral argument. See Fed. R. Civ. P. 78(b); L.Civ. R. 78.1(b). For the reasons set forth below, the Court willGRANT in part and DENY in part Defendant's Motion, andDENY Defendant's Motion for Sanctions without prejudice.I. BACKGROUND4*2 On November 13, 2024, Plaintiff received two textmessages from Defendant: “Your Wonder verification codeis 041797” and “Your Wonder verification code is 475599.”Id. 36 (herein, the “Verification Texts”). According to thetime stamps in the image embedded within the Complaint,the Verification Texts were sent within one minute of eachother, and no further or prior texts were sent to Plaintiff. Id.Plaintiff's cell phone number has been on no-call registries (atboth the federal and state level) since 2003. Id. 28.Plaintiff's theory is that Wonder sends fake verification textsas a “trojan horse” to induce recipients into investigatingwhere the messages came from, which will eventuallylead the recipient to Wonder's website, where they willsee solicitations and advertisements for Wonder's products.See id. ¶¶ 46-47. In other words, Plaintiff claims that theVerification Texts “were deliberately designed to create thefalse impression that Plaintiff [ ] requested access codes,compelling [him] to investigate the source.” Id.Before receiving the Verification Texts, Plaintiff had noprior knowledge of Wonder or its website, had not inquiredabout their products or services, and had not requestedany communication from Wonder. Id. ¶¶ 32-34. Plaintiff“unequivocally denies providing Defendants with consent”to send messages to his cell phone number for solicitationpurposes. Id. 54.Plaintiff has suffered various harms from receiving theVerification Texts, including having to take time to researchwhere they came from, use data and time on his phone plan,and lose battery on his phone. Id. 80. Plaintiff allegesviolations of: (1) 47 U.S.C. §§ 227 (c)(3)(F) & (c)(5)(B)(Count I); (2) 47 U.S.C. § 227(b)(1)(A)(iii) and 47 C.F.R.§ 64.1200(a)(1)(iii) (Count II); (3) 47 U.S.C. § 227(b)(1)(B) (Count III); (4) N.J. Stat. Ann. § 2A:65D-3 and theNew Jersey Consumer Fraud Act (“NJCFA”), N.J. Stat. Ann.§ 56:8 et seq., (Count IV); (5) 47 U.S.C. § 227 (b)(2)(D)(Count V); (6) punitive damages (Count VI); and fraudulentinducement.5II. LEGAL STANDARDRule 12(b)(6) permits the dismissal of a case for failure tostate a claim. Fed. R. Civ. P. 12(b)(6). The reviewing courtaccepts all well-pled facts as true, construes the complaintin the plaintiff's favor, and determines “whether, under anyreasonable reading of the complaint, the plaintiff may beentitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224,233 (3d Cir. 2008) (citation modified). The defendant bearsthe burden of showing that a plaintiff has failed to state a
RICHARD M. ZELMA, Plaintiff, v. WONDER GROUP INC., a/k/a;..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2claim. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178(3d Cir. 2000)).To survive a Rule 12(b)(6) challenge, a plaintiff's claimsmust be facially plausible, meaning that the well-pled facts“allow[ ] the court to draw the reasonable inference that thedefendant is liable for the misconduct alleged.” Iqbal, 556U.S. at 678. The allegations must be “more than labels andconclusions, and a formulaic recitation of the elements ofa cause of action will not do.” Bell Atl. Corp. v. Twombly,550 U.S. 544, 555 (2007). Finally, “[i]n deciding a Rule12(b)(6) motion, a court must consider only the complaint,exhibits attached to the complaint, matters of public record, aswell as undisputedly authentic documents if the complainant'sclaims are based upon these documents.” Mayer v. Belichick,605 F.3d 223, 230 (3d Cir. 2010). In other words, whendetermining whether to dismiss a complaint, the Court doesnot need to accept as true allegations in a complaint thatare directly contradicted by authenticated documents that thecomplaint relies on. Sourovelis v. City of Phila., 246 F. Supp.3d 1058, 1075 (E.D. Pa. 2017) (citing Pension Benefit Guar.Corp. v. White Consol. Indus., Inc., 998 F. 2d 1192, 1197 (3rdCir. 1993)).III. ANALYSIS*3 Congress created the TCPA in response to the growingnumber of telemarketing calls and faxes that tied upemergency cell phone lines. In the Matter of Rules & Reguls.Implementing the Tel. Consumer Prot. Act of 1991, 27F.C.C.R. 15391, 15391-92 (2012). The TCPA applies to bothvoice calls and text messages. Gager v. Dell Fin. Servs., LLC,727 F.3d 265, 269 n.2 (3d Cir. 2013) (citation modified).The TCPA makes it illegal to, among other things, initiate atelephone call or text message to any phone number using anartificial or prerecorded voice to deliver a message withoutprior express consent (barring very limited exceptions notrelevant here). 47 U.S.C. § 227(b)(1)(B). Congress providedthe public with the right to sue if they received more than onetelephone call or text within any 12-month period by or onbehalf of the same entity in violation of the TCPA. 47 U.S.C.§ 227(c)(5). As explained in more depth below, the Court willGRANT in part and DENY in part Defendant's Motion.A. Whether Plaintiff Consented to Receiving theVerification TextsBefore analyzing whether Plaintiff states a claim with respectto specific counts of the Complaint, the Court first addressesan argument common to many sections of Defendant'smoving papers: that Plaintiff's claims should be dismissedbecause he consented to receiving the Verification Texts.See, e.g., Mot. at 1. According to Defendant, Wonder onlysends verification texts like the two Plaintiff received whenan individual registers for an account on their website, andtherefore, the Verification Texts were sent with his consent.Id.; see also id. at 8-9. Defendant goes so far as to assertPlaintiff has manufactured this lawsuit. See id. at 1.Although Defendant may be correct that the Verification Textswere sent in response to Plaintiff registering his phone numberon its website, its fact-based argument is not appropriate forthe Court to consider at the motion to dismiss stage. As JudgeMcNulty explained in another TCPA case, granting a motionto dismiss on the basis that a plaintiff consented to defendant'soutreach when it was not clear from the face of the Complaintthat was the case “would misapply the role of consent in Rule12(b)(6) review of these TCPA claims.” Smith v. Pro CustomSolar LLC, No. 19-20673, 2021 WL 141336, at *4 (D.N.J.Jan. 15, 2021).In Smith, Judge McNulty noted that while the Third Circuithas not explicitly addressed whether consent in TCPA cases isan affirmative defense, it has, in dicta, “signaled its agreementwith its sister circuits,” which have consistently held that“consent (or its absence) is not an element but an affirmativedefense,” and therefore, “it is not the plaintiff's burden to pre-rebut it in order to avoid dismissal.” Id. (citations to casesfrom other circuits omitted); see also id. (citing Evankavitchv. Green Tree Serv., LLC, 793 F.3d 355, 366 (3d Cir. 2015)which held that the burden to prove an exception to liabilityunder another statute lies with the defendant and relyingon interpretations of the TCPA holding that consent is anexception to liability for which the defendant bears the burdenof proof). Judge McNulty also mentioned that his position thatconsent was an affirmative defense aligned with the FederalCommunications Commission's (“FCC”) view, which statedthat “the creditor should be responsible for demonstrating thatthe consumer provided prior express consent” and “should aquestion arise as to whether express consent was provided,the burden will be on the creditor to show it obtainedthe necessary prior express consent.” Id. (quoting Rules &Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 23F.C.C.R. 559, 565 (2008)).Accordingly, the Court finds it is Defendant's burden—notPlaintiff's—to show that Plaintiff consented to receiving theVerification Texts. Defendant will have its opportunity to doso upon the completion of discovery.6 Because the Court
RICHARD M. ZELMA, Plaintiff, v. WONDER GROUP INC., a/k/a;..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3must accept the allegations in the Complaint as true and drawall reasonable inferences in favor of Plaintiff, N.J. Carpenters& the Trustees Thereof v. Tishman Construction Corp. ofN.J., 760 F.3d 297, 302 (3d Cir. 2014), the Court cannotrely on Defendant's representations that Plaintiff consented toreceiving the Verification Texts or that he registered for anaccount on Wonder's website.7 See also Zelma v. Penn LLC,No. 19-8725, 2020 WL 278763, at *8 (D.N.J. Jan. 17, 2020)(explaining that defendants’ invocation of an affirmativedefense included within the TCPA cannot be considered at themotion to dismiss stage).B. Count I: Violations of §§ 277 (c)(3)(F) and (c)(5)(B)of the TCPA*4 In Count I, Plaintiff alleges Defendants violated 47U.S.C. §§ 277 (c)(3)(F) and (c)(5)(B).Section 227(c)(3)(F) states that if the Federal TradeCommission decides to establish a [Do Not Call] database,the regulations shall “prohibit any person from makingor transmitting a telephone solicitation to the telephonenumber of any subscriber included in such database.” 47U.S.C. § 227(c)(3)(F). In turn, the resulting regulationstates, “No person or entity shall initiate any telephonesolicitation to ... [a] residential telephone subscriber whohas registered his or her telephone number on the nationaldo-not-call registry of persons who do not wish to receivetelephone solicitations that is maintained by the FederalGovernment.” 47 C.F.R. § 64.1200(c)(2).Marks v. Unique Lifestyle Vacations, LLC, No. 20-4915, 2023WL 3294845, at *2 (E.D. Pa. May 5, 2023).47 U.S.C. § 227(c)(5) “provides a private right of actionfor violations of the [FCC's] regulations accompanying theTCPA.” Penn LLC, 2020 WL 278763, at *6. “Pursuant to theTCPA, a claimant is entitled to ‘received $500 in damages foreach ... violation.’ ” Marks, 2024 WL 1051974, at *5 (quoting47 U.S.C. § 227(c)(5)(B)).The TCPA defines a “telephone solicitation” as “the initiationof a telephone call or message for the purpose of encouragingthe purchase or rental of ... goods, or services, which istransmitted to any person.” 47 U.S.C. § 227(a)(4). The TCPAdefines an “unsolicited advertisement” as any “materialadvertising the commercial availability or quality of anyproperty, goods, or services which is transmitted to any personwithout the person's prior express invitation or permission.”47 U.S.C. § 227(a)(5).Defendant asserts that Count I should be dismissed becausethe Verification Texts are not advertisements or solicitationsas defined under the TCPA. Mot. at 6-7. The Court agrees.When rejecting a similar claim brought by a plaintiff whoreceived (via fax) a satisfaction survey—which the plaintiffalleged was an unsolicited advertisement under the TCPAbecause it contained the defendant's name, promoted thequality of its services, and referred its recipient to a websiteto which he could send his responses to the questions in thesurvey—the Third Circuit explained:“ ‘Advertising’ is the action of drawing the public'sattention to something to promote its sale.” FlorenceEndocrine Clinic, PLLC v. Arriva Med., LLC, 858 F.3d1362, 1366 (11th Cir. 2017) (internal quotations andcitations omitted). “So to be an ad, the fax must promotegoods or services to be bought or sold, and it should haveprofit as an aim.” Sandusky Wellness Cir., LLC v. MedcoHealth Sols., Inc., 788 F.3d 218, 222 (6th Cir. 2015).Though an advertisement need not be as explicit as “buythis product from us,” at a minimum for the sending ofthe fax to violate the TCPA it must directly or indirectlyinform the recipient that the sender or some other entitysells something of value. See Golan v. Veritas Entm't LLC,788 F.3d 814, 819 (8th Cir. 2015) (“Because the messagesdid not mention property, goods, or services, we agree thatthey were not advertisements prohibited by the TCPA orits implementing regulations.”). Moreover, the fax eithermust (1) notify a potential buyer that he or she can purchasea product, goods, or services from the sending entity orperhaps another seller, see Sandusky, 788 F.3d at 222(finding that faxes were not advertisements, even thoughthey call attention to items and services, because “no recordevidence shows that they do so because the drugs or [ ]services are for sale [ ], now or in the future”), or (2)induce or direct a willing buyer to seek further informationthrough a phone number, an email address, a website, orequivalent method for the purposes of making a purchase,see Holtzman v. Turza, 728 F.3d 682, 685-87 (7th Cir.2013); Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918(9th Cir. 2012). Thus, the fax must convey the impressionto its recipient that a seller is trying to make a sale to him.We believe it is important to limit the TCPA to promotionof the sale of goods or services lest any unsolicited fax thata commercial entity sends that contains a phone number orwebsite address conceivably could become an “unsolicitedadvertisement,” a result that would be inconsistent with thestatutory definition of that term.
RICHARD M. ZELMA, Plaintiff, v. WONDER GROUP INC., a/k/a;..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4*5 Mauthe v. Nat'l Imaging Assocs., Inc., 767 F. App'x 246,248-49 (3d Cir. 2019) (emphasis added). Like in Mauthe,nothing in the Verification Texts promotes goods or servicesto be bought or sold, nor does anything in the VerificationTexts directly or indirectly inform Plaintiff that Wonder soldanything of value. Compl. 36.Plaintiff argues that even if the messages were justverification texts, “they would still require prior expressconsent under the TCPA” because “[c]ourts have ruled thatthe mere classification of a message as ‘verification’ does notexempt it from TCPA liability if the recipient did not consentto receive it.” Opp'n at 14 (quoting, in a parenthetical citation,Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9thCir. 2017) as stating that “Verification messages fall underTCPA regulations when sent without prior express consent”).The problem for Plaintiff is that this quotation does not exist,see Prior Order at 2, and the Court could not identify any othercaselaw to support that contention.The Court is also not convinced by Plaintiff's assertion thatthe Verification Texts were a “trojan horse” to make himvisit Wonder's website because they reference their brand inthe text. Opp'n at 19. In Mauthe, the Third Circuit rejectedthe “trojan horse” argument as it would mean that “any[message] sent by defendant, for any purpose” could beconsidered an advertisement or solicitation as long as itcontained information about the defendant's website. Mauthe,767 F. App'x at 250. But here, the Verification Texts did noteven contain a link to Wonder's website, and a “recipient'soutside knowledge that a sender sells something does nottransform every [message] sent by such sender to a recipientwith such knowledge into an advertisement.” Id. at 249. Nordoes the fact that Plaintiff called the number that appearedto send the Verification Texts—which allegedly, in a “barelyintelligible prerecorded announcement,” acknowledged hisinterest in Wonder's products—change the Court's calculus.Compl. 39. The Third Circuit made clear that it would“not adopt a standard under the TCPA which effectivelywould construe the inclusion of a website address in a faxas de facto advertising.” 767 F. App'x at 250. Applied here,the Court rejects Plaintiff's contention that any messagesent with a return number could be seen as pretext foradditional advertising. Accordingly, the Court concludes thatthe Verification Texts were not advertisements or solicitationsunder the TCPA, and therefore, will DISMISS Count I of theComplaint.B. Count V: Violations of 47 U.S.C. § 227(b)(2)(D)As noted above, it is a violation of the TCPA to sendan unsolicited advertisement “unless ... the unsolicitedadvertisement contains a notice meeting the requirementsunder paragraph (2)(D).” 47 U.S.C. § 227(b)(1)(C)(iii).“Section 227(b)(2)(D) in turn sets forth the requirementsfor an acceptable opt-out notice. That section dictates theplacement of the notice, sets forth several statements thenotice must include, and requires that the notice also complywith the requirements of subparagraph 227(b)(2)(E) andsubsection 227(d).” Bais Yaakov of Spring Valley v. Alloy, Inc.,936 F. Supp. 2d 272, 285 (S.D.N.Y. 2013) (citing 47 U.S.C.§ 227(b)(2)(D)).*6 Plaintiff alleges Defendant violated § 227(b)(2)(D) bynot including an opt-out provision in the Verification Texts.But the Court concluded that the Verification Texts were notadvertisements, and in turn, Plaintiff's § 227(b)(2)(D) claimfails.8 Accordingly, the Court will DISMISS Count V of theComplaint.C. Counts II and III: Violations of 47 U.S.C. § 227(b)(1)(A)Defendant also argues that Counts II and III of the Complaintshould be dismissed because the Verification Texts were notsent using an automatic telephone dialing system (“ATDS”).Mot. at 10-12. Under § 227(b)(1)(A) TCPA,9 it is unlawfulto make certain calls using an ATDS to a telephone numberwithout the prior express consent of the called party.Facebook, Inc. v. Duguid, 592 U.S. 395, 400 (2021); 47U.S.C. § 227(b)(1)(A)). To state a claim under 47 U.S.C. §227(b)(1)(A), a plaintiff must allege that: “(1) the defendantcalled a cellular telephone number;10 (2) using an [ATDS];(3) without the recipient's prior express consent.” Martinez v.TD Bank USA, No. 15-7712, 2017 WL 2829601, at *4 (D.N.J.June 30, 2017) (citations omitted).Given the Court's finding above that Plaintiff has sufficientlyalleged he did not provide consent to receive the VerificationTexts, only the second element is at issue. To establish thesecond element, “a plaintiff must plead facts that support afinding that the defendant used an ATDS in such a mannerthat violates the TCPA.” Deleo v. Nat'l Republican SenatorialComm., No. 21-3807, 2021 WL 5083831, at *6 (D.N.J. Nov.1, 2021). “To qualify as an [ATDS], a device must have thecapacity either to store a telephone number using a random orsequential generator or to produce a telephone number using
RICHARD M. ZELMA, Plaintiff, v. WONDER GROUP INC., a/k/a;..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5a random or sequential number generator.” Facebook, 592U.S. at 399. The equipment in question must use a random orsequential number generator. Id. at 404.A bare allegation that a defendant used an ATDS isinsufficient to state a TCPA claim. See, e.g., Trumper v.GE Capital Retail Bank, 79 F. Supp. 3d 511, 513 (D.N.J.2014). And while a plaintiff can make these allegations uponinformation or belief, courts typically “require additionalfactual information, such as the absence of a relationshipbetween the parties and the random nature of the automationdevice.” Id. (quoting Norman v. Sito Mobile Sols., No.17-2215, 2017 WL 1330199, at *3 (D.N.J. Apr. 6, 2017)); seeIn re Jiffy Lube Int'l Inc., Text Spam Litig., 847 F. Supp. 2d1253, 1260 (S.D. Cal. 2012) (finding the complaint sufficientwhen plaintiffs stated that they “received a text messagefrom an SMS short code and that the message was sent bya machine with the capacity to store or produce randomtelephone numbers”). As this Court clarified in another TCPAcase:The complaint must allege somefacts permitting an inference thatan ATDS was used. Montinola v.Synchrony Bank, No. 17-8963, 2018WL 4110940, at *2 (D.N.J. Aug.28, 2018) (applying Third Circuitdefinition); Schley v. One Planet OpsInc., 445 F. Supp. 3d 454, 459-60(N.D. Cal. 2020) (applying NinthCircuit definition). That inference cancome from allegations like (1) a delaybefore hearing the message, Hazan v.Wells Fargo & Co., No. 18-10228,2019 WL 1923272, at *3 (D.N.J. Apr.30, 2019); (2) calls ending with abeep, id. at *2, (3) instructions tocall a 1-800 number, Todd v. Citibank,No. 16-5204, 2017 WL 1502796, at*6 (D.N.J. Apr. 26, 2017); (4) anunusual phone number or short codeinstead, Douek v. Bank of Am. Corp.,No. 17-2313, 2017 WL 3835700,at *2 (D.N.J. Sept. 1, 2017); and(5) a robotic voice on the otherend, Montinola, 2018 WL 4110940,at *3.... Although these facts arenot independent legal requirements,they may help the pleader cross theplausibility line. [Id.]*7 Smith, 2021 WL 141336, at *2.Plaintiff alleges that Defendant initiated the Verification Textsusing an ATDS. Compl. 120 (citing to a 2012 FCC Reportincluding a definition of an ATDS). In support of his claim,Plaintiff alleges that when he called the number that sentthe Verification Texts, he “encountered a barely intelligibleprerecorded announcement delivered in a heavily accentedfemale voice” and that this “recording acknowledged thecaller's interest in the Defendant's products.” Id. 39. The“recorded message terminated without providing Plaintiffthe option to stop the communications or transfer to a liveagent.” Id. 40. Furthermore, Plaintiff clearly alleges that: (1)Defendants did not have his prior express consent to initiatethese messages using an auto-dialer, id. 121; (2) he had noprior knowledge of Wonder or their website before receivingthe Verification Texts, id. 32; (3) he never inquired aboutWonder's products or services, id. 33; and (4) he neverrequested any communication from Wonder, id. 34.The line between sufficient and insufficient allegations inthis context is thin. In Norman, the plaintiff's failure to pleadthat text messages were sent from an ATDS or were randomin nature, combined with the fact the plaintiff did not, “forexample, aver that he did not have a business relationship withdefendant,” led the court to dismiss the complaint. 2017 WL1330199, at *3. By contrast, in Kramer v. Autobytel, Inc., thecourt found that the plaintiff's allegations, when consideredin their entirety, were sufficient because the plaintiff pled thateach “text message was made using equipment that, uponinformation and belief, had the capacity to store or producetelephone numbers to be called, using a random or sequentialnumber generator.” 759 F. Supp. 2d 1165, 1167 (N.D. Cal.2010). While Plaintiff certainly could have alleged moreregarding Defendant's use of an ATDS—especially whetherDefendant utilized a device that has the capacity either tostore a telephone number using a random or sequentialgenerator or to produce a telephone number using a randomor sequential number generator—the Court concludes he hasalleged enough to survive a motion to dismiss. Accordingly,the Court will DENY Defendant's Motion as to Counts II andIII.
RICHARD M. ZELMA, Plaintiff, v. WONDER GROUP INC., a/k/a;..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6D. Count IV: Violation of N.J. Stat. Ann. § 2A:65D-3and the NJCFAIn Count IV, Plaintiff alleges that Defendant violated theNJCFA and N.J. Stat. Ann. § 2A:65D-3 by sending Plaintiffthe Verification Texts.Under the NJCFA, it is unlawful to use any “unconscionablecommercial practice, deception, fraud, false pretense, falsepromise, misrepresentation, or the knowing, concealment,suppression, or omission of any material fact with intentthat others rely upon such concealment, suppression oromission, in connection with the sale or advertisement ofany merchandise or real estate[.]” N.J. Stat. Ann. § 56:8-2.To establish a prima facie claim under the NJCFA, aplaintiff must demonstrate: “(1) unlawful conduct by thedefendant; (2) an ascertainable loss by the plaintiff; and(3) a causal relationship between the unlawful conduct andthe ascertainable loss.” Valli v. Avis Budget Grp., Inc., No.14-6072, 2017 WL 1956777, at *4 (D.N.J. May 10, 2017)(citing Int'l Union of Operating Engineers Local No. 68Welfare Fund v. Merck & Co., 192 N.J. 372, 389 (2007)).*8 The NJCFA provides a remedy for unlawfultelemarketing phone calls. Gutman v. Liberty Bankers LifeIns. Co., No. 24-8076, 2025 WL 615128, at *5 (D.N.J. Feb.26, 2025) (citing N.J. Stat. Ann. § 56:8–119-130). “It appears,however, that Plaintiff's claim cannot be brought under NewJersey's ‘Do Not Call Law,’ N.J. Stat. Ann. §§ 56:8–119-130,because Plaintiff was not solicited via a ‘telephone call,’ butrather through text message.” Penn LLC, 2020 WL 278763,at *8. In Penn LLC, the Court found that the “Do Not CallLaw” only covers phone calls—a holding it confirmed byreading definitions in that statute. Id. For example, the DoNot Call Law defines “telemarketing” as “any plan, programor campaign ... to encourage the purchase or rental of ...merchandise, but does not include the solicitation of salesthrough media other than a telephone call.” Id. (quoting N.J.Stat. Ann. § 56:8-120) (emphasis partially added). Similarly,the statute defines a “telemarketing sales call” in a manner thatmakes clear the cause of action is limited to phone calls. SeeN.J. Stat. Ann. § 56:8-120 (defining a “telemarketing salescall” as “a telephone call made by a telemarketer....”).As he did in Penn LLC, Plaintiff attempts to get aroundthis limitation by invoking N.J. Stat. Ann.§ 2A:65D-3. Partof the Unsolicited Communications Act, N.J. Stat. Ann.§§ 2A:65D1–D7, § 2A:65D-3 states that it is unlawfulto “send an unsolicited advertisement by means of textmessaging without first receiving permission from theintended recipient.” But as the Court noted in Penn LLC,§ 2A:65D-5 of the Act “explicitly states that ‘[n]othing setforth in this act shall be construed as creating, establishing orauthorizing a private cause of action by an aggrieved personagainst a person who has violated, or is alleged to haveviolated, the provisions of this act.’ ” 2020 WL 278763, at *9(D.N.J. Jan. 17, 2020) (quoting N.J. Stat. Ann. § 2A:65D-5).Because the statutes that Plaintiff relies on do not providehim with an avenue for relief, the Court will DISMISS CountIV.11E. Fraudulent InducementA section of the Complaint is titled “The Defendants’ Plot– Fraudulent Inducement,” see Compl. ¶¶ 45-53, whichthe Court construes as the basis for a claim for fraudulentinducement. To state a claim for fraudulent inducementunder New Jersey law, a plaintiff must allege: (1) a materialrepresentation of a present or past fact (2) that was made withknowledge of its falsity (3) with the intention that the otherparty rely thereon (4) resulting in reliance by that party (5)to his detriment. Metex Mfg. Corp. v. Manson, No. 05-2948,2008 WL 877870, at *4 (D.N.J. March 28, 2008) (citingJewish Ctr. of Sussex Cnty v. Whale, 86 N.J. 619, 624 (1981)).Fraud in the inducement claims “must comply with FederalRule of Civil Procedure 9(b)’s heightened pleading standardsince they sound in fraud.” Importers Serv. Corp. v. Aliotta,No. 22-640, 2024 WL 2765620, at *8 (D.N.J. May 30, 2024)(citing G&F Graphic Servs. v. Graphic Innovators, Inc., 18F. Supp. 3d 583, 593-94 (D.N.J. 2014) (applying Rule 9(b) tofraud in the inducement claim)). “To satisfy this standard, theplaintiff must plead or allege the date, time and place of thealleged fraud or otherwise inject precision or some measure ofsubstantiation into a fraud allegation.” Id. (quoting Fredericov. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007)).Plaintiff alleges that by sending him the VerificationTexts—which were intentionally crafted to mislead him(and others) into believing the messages were solicited—Defendant fraudulently induced him into investigating thesource of the messages. Compl. ¶¶ 45-47; see also Opp'nat 26-27. According to Plaintiff, “Defendants knowinglymisrepresented facts to induce Plaintiff into engaging withtheir service.” Compl. 46.*9 On these facts, Plaintiff has failed to state a fraudulentinducement claim. Most notably, Plaintiff has not identified amisrepresentation of a fact. That the Verification Texts wereallegedly sent under the false pretense to induce Plaintiff
RICHARD M. ZELMA, Plaintiff, v. WONDER GROUP INC., a/k/a;..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7into researching Wonder does not give rise to a claim forfraudulent inducement, in which a plaintiff must show a falsestatement of fact. See Torsiello v. Strobeck, 955 F. Supp.2d 300, 316 (D.N.J. 2013); see also Reply at 13 (arguingthat “the content of the Verification Text Messages solelycontain a security code,” which are not “facts” or “statements”that could have induced Plaintiff to take further action).Similarly, Plaintiff has failed to plead with particularity thatWonder deliberately sent Plaintiff the Verification Texts withthe intention that he rely on them. See Compl. Becausethe Court agrees with Defendant that “Plaintiff does notassert facts in the Complaint sufficient to suggest a materialmisrepresentation by Defendant, or any reliance by Plaintiffon a misrepresentation,” Reply at 15, the Court will DISMISSPlaintiff's fraudulent inducement claim.F. Count VI: Punitive DamagesPlaintiff also brings a standalone count for punitive damages.Compl. ¶¶ 146-152. Defendant argues that there is noindependent count for punitive damages under New Jerseylaw and therefore Count VI of the Complaint should bedismissed. Mot. at 21-22 (citing Brennan v. Nat'l Tel.Directory Corp., 850 F. Supp. 331, 346 (3d Cir. 1994)).Defendant is correct. “The Court must dismiss Plaintiff'sseparate count for punitive damages [ ] because anindependent count for punitive damages is not cognizable.”Smith v. Covidien LP, No. 19-11981, 2019 WL 7374793, at*10 (D.N.J. Dec. 31, 2019) (citing DiAntonio v. VanguardFunding, LLC, 111 F. Supp. 3d 579, 585 (D.N.J. 2015)).Caselaw in this circuit is clear that punitive damages are“not a substantive cause of action in and of themselves.”Hassoun v. Cimmino, 126 F. Supp. 2d 353, 372 (D.N.J. 2000).In other words, while Plaintiff may seek punitive damagesrelative to his other claims (to the extent they are available forthose claims), he may not do so as an independent cause ofaction. Bond v. Solvay Specialty Polymers, USA, LLC, 583 F.Supp. 3d 643, 654 (D.N.J. 2022). Accordingly, the Court willDISMISS with prejudice Count VI of the Complaint.G. Motion for SanctionsFinally, Defendant moves for sanctions against Plaintiff for“refusing to withdraw his frivolous Complaint.” SanctionsReply at 1; see also D.E. 11-2 (“Rule 11 Letter to Plaintiff”).The Court notes that Plaintiff and Defense Counsel haverehashed many of the arguments raised in the SanctionsMotion before, including in Perm LLC. See 2020 WL 278763,at *9 (D.N.J. Jan. 17, 2020). For that reason, the Court cutsto the chase.Like in Perm LLC, here, Defendant's position that Plaintiff'sarguments are frivolous is severely undercut by the fact thatCounts II and III survive the Motion. Nevertheless, the Courtis mindful that Plaintiff makes arguments in Opposition to theMotion that this Court has rejected before—for example, thatN.J. Stat. Ann. § 2A:65D-3 has no private right of action.However, in the Court's view, the heart of Defendant'sMotion for Sanctions is that Plaintiff has manufactured thislawsuit by registering for an account with Wonder and thenproceeding to allege the opposite. At this time, the Courtcannot ascertain the basis of Defendant's claim. Not only hasthere been no discovery, but Defendants have not providedany proof to support that contention beyond their conclusoryassertions that Wonder only sends verification text messageswhen a person registers for an account on their website andthat Plaintiff agreed to Wonder's terms and conditions inNovember 2024. See Perm LLC, 2020 WL 278763, at *9(rejecting defendants’ sanctions motions where defendantsprovided no evidence to support their claim that Plaintiff actedin bad faith).Because the Court resolves all doubts in favor of the non-moving party on a motion for sanctions, id., the Court willDENY Defendant's Motion for Sanctions without prejudice.See also Ford Motor Co. v. Summit Motor Prods., Inc.,930 F.2d 277, 289 (3d Cir. 1991) (“Generally, sanctionsare prescribed only in the ‘exceptional circumstance wherea claim or motion is patently unmeritous or frivolous.”)(citation modified). Should discovery establish that Plaintiffregistered for an account with Wonder (and thereforeconsented to receiving the Verification Texts), or if, forinstance, Defendant can show that Plaintiff signed Wonder'sterms and conditions in November 2024, see Mauke Letter at4, Defendant may renew its motion.IV. CONCLUSION*10 For the reasons explained above, the Court willGRANT in part and DENY in part Defendant's Motion, andDENY without prejudice Defendant's Motion for Sanctions.An appropriate Order accompanies this Opinion.All CitationsSlip Copy, 2025 WL 2976546
RICHARD M. ZELMA, Plaintiff, v. WONDER GROUP INC., a/k/a;..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8Footnotes1In addition to Wonder, Plaintiff brings this action against Doe Telemarketers 1-10 and ABC Corporations1-10. See Dkt. Because Wonder is the only named Defendant, the Court refers to Wonder as the singularDefendant in this action.2When reviewing Plaintiff's Opposition, the Court identified several quotations and citations that appearedinaccurate. See D.E. 16 (“Previous Order”). For example, Plaintiff included fabricated quotations from realcases, and at other points, cited to cases that, to the best of the Court's knowledge, do not exist. See id.Accordingly, Plaintiff was ordered to disclose whether he used any generative artificial intelligence whiledrafting his Opposition and explain the identified discrepancies. Id. In his response, Plaintiff stated that hesaw a “wave of Al-based services” when conducting legal research for this matter, and even tested one ofthe platforms for “off topic input.” D.E. 19-2 (“Plaintiff's Letter”) at 1. However, this experience “reinforced [his]decision to rely on [his] personal TCPA archive and trust legal databases.” Id.Plaintiff explained the fabricated quotations in his Opposition by stating that he “inadvertently used quotationmarks in places where [he] meant only to paraphrase a holding or summarize the spirit of a ruling,” whichhe now “understand[s] ... could misrepresent intent and mislead the Court.” Id. at 2. According to Plaintiff, hehad “always used quotes where a supporting statement is made,” but he “now understand[s] the differencebetween citation and paraphrasing.” Id. And while Plaintiff acknowledged that “some of the cases [he]originally cited can't be found or verified in official records,” he chalked that up to either “misread[ing] thesource or summariz[ing] it poorly.” Id.Plaintiff's explanation strains credulity. Plaintiff has, in this district alone, brought nearly two dozen cases.Thus, despite his pro se status, he is not an inexperienced litigant. Plaintiff's submissions in this case alonedemonstrate a familiarity with caselaw and pleading requirements. He even has a database of TCPA cases.If Plaintiff has enough repeat litigation to maintain a compendium of relevant cases, and has even learnedhow to properly Bluebook his citations, surely he knows how to use quotation marks.“While a litigant's pro se status requires a court to construe the allegations in the complaint liberally, a litigantis not absolved from complying with Twombly and the federal pleading requirements merely because s/heproceeds pro se.” Zuniga v. Am. Home Mortg., No. 14-2973, 2016 WL 886214, at *2 (D.N.J. Mar. 7, 2016)(quoting Thakar v. Tan, 372 F. App'x 325, 328 (3d Cir. 2010)). For that reason, the Court will not considerPlaintiff's refiled Opposition brief, D.E. 19, which removes the problematic citations. Moreover, the Courtstrongly disagrees with Plaintiff's characterization of these inaccuracies as “formatting errors.” Plaintiff's Letterat 1.Plaintiff's above explanation does not fully account for the fabricated quotations and citations within his brief.It also calls into serious doubt the certification attached to his Opposition, in which Plaintiff declared underthe penalty of perjury that he reviewed all relevant law, rules and regulations relevant to this matter. D.E.9-1. The Court will defer its decision on whether to impose any sanctions against Plaintiff until the conclusionof this litigation.3Plaintiff opposes the Motion for Sanctions, D.E. 12 (“Sanctions Opposition” or “Sanctions Opp'n”), andDefendant replies, D.E. 13 (“Sanctions Reply”).4The facts in this section derive from the Complaint's well-pled factual allegations and the attachments thereto,which the Court presumes to be true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
RICHARD M. ZELMA, Plaintiff, v. WONDER GROUP INC., a/k/a;..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.95Although Plaintiff does not formally bring a claim for fraudulent inducement, he makes reference toDefendants fraudulently inducing him in his Complaint. Compl. ¶¶ 45-53. Given Plaintiff's pro se status, theCourt construes his complaint liberally and will identify a cause of action even if a plaintiff does not formallyassert it. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106(1976)).6While Defendant is correct it need not provide that proof prior to discovery, Plaintiff is also correct in notingthat Plaintiff's allegations are assumed to be true at this stage of the litigation. Absent any explicit proof tothe contrary in the Complaint or any attachments, the Court will assume Plaintiff's allegations are true.7According to the Exhibit A attached to the Complaint—a letter that Defendant's in-house counsel sent Plaintiffon January 16, 2025—Defendant has refused to provide proof that Plaintiff registered for an account onWonder's website. D.E. 1, Ex. A (“Mauke Letter”). That the Mauke Letter suggests that Plaintiff registered foran account on Wonder's website does not make it so.A court may rely on an “undisputedly authentic document that a defendant attaches as an exhibit to amotion to dismiss if the plaintiff's claims are based on the document.” Pension Ben. Guar. Corp., 998 F.2dat 1196. Plaintiff does not rely on the contention embedded within the letter that he registered for an accountwith Wonder; therefore, the Court cannot assume that the Verification Texts were sent in response to hisregistration. In fact, Plaintiff's rejection of that contention goes to the core of his Complaint. The Court similarlyrejects Defendant's assertion that Plaintiff agreed to Wonder's terms and conditions on November 13, 2024,as it provides no proof that is true.8Because the Court concludes that the Verification Texts are not advertisements, the Court does not reachDefendant's argument that § 227(b)(2)(D) does not create a private right of action. See Mot. at 17-18.9Both Counts II and III of the Complaint allege violations of § 227(b)(1)(A) of the TCPA. See Compl.10This element is not in dispute. See Opp'n.11The Court notes this is at least the second time Plaintiff has brought a claim under N.J. Stat. Ann. § 2A:65D-3for an unsolicited advertisement. The statute clearly does not provide a private right of action, and the Courtcautions Plaintiff that future attempts to bring a claim under this statute—barring a change in law—may resultin sanctions.End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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