NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-2145 _____________

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 _______________

Submitted Under Third Circuit L.A.R. 34.1(a) March 19, 2021

Before: SHWARTZ, MATEY, and TRAXLER,* Circuit Judges.

(Filed March 23, 2021) _______________

OPINION** _______________

* 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

(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

(d), and we have jurisdiction to review the final order of dismissal under

. 2 act . . . .”

: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.,

(N.J.

2007) (per curiam) (alterations omitted) (quoting N.J. Citizen Action v. Schering-Plough

Corp.,

(N.J. Sup. Ct. App. Div. 2003)). Failure to adequately plead an

ascertainable loss leads to dismissal. See Weinberg v. Sprint Corp.,

(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,

, 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),

(3d Cir. 1986) (citing Jaconski v. Avisun,

, 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,

, 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.,

(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.

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