Ana Alpizar-Fallas v. Frank Favero , 908 F.3d 910 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3837
_____________
ANA LIDIA ALPIZAR-FALLAS,
Individually and on behalf of all others similarly situated,
Appellant
v.
FRANK E. FAVERO; BRIAN BARBOSA; PROGRESSIVE
GARDEN STATE INSURANCE COMPANY; JOHN DOE
1-5; JOHN DOE INCORPORATED 1-5, (fictitious
designations)
On Appeal from the United States District Court
for the District of New Jersey
(District Court No.: 3-17-cv-02768)
District Judge: Honorable Michael A. Shipp
Argued September 11, 2018
Before: JORDAN, VANASKIE and RENDELL,
Circuit Judges
(Opinion Filed: November 15, 2018)
Charles X. Gormally, Esquire ARGUED
Thomas Kamvosoulis, Esquire
Brach Eichler
101 Eisenhower Parkway, 2nd Floor
Roseland, NJ 07068
Counsel for Appellant
Francis J. Leddy, III, Esquire
McGivney & Kluger
23 Vreeland Road
Suite 220
Florham Park, NJ 07932
Kymberly Kochis, Esquire ARGUED
Francis X. Nolan, IV, Esquire
Eversheds Sutherland
1114 Avenue of the Americas
The Grace Building, 40th Floor
New York, NY 10036
Counsel for Appellee
2
OPINION
RENDELL, Circuit Judge:
Ana Lidia Alpizar-Fallas brought a class action claim
against Progressive Garden State Insurance Company
(“Progressive”) and one of its agents, Bryan Barbosa, alleging
that Progressive and Barbosa’s deceptive business practices
violated New Jersey’s Consumer Fraud Act (“CFA”). The
District Court dismissed her claim, characterizing it as a
denial of insurance benefits, which the New Jersey appellate
courts have ruled is not covered by the CFA. Because we
view Alpizar-Fallas’s complaint as alleging deception that
would be covered by the CFA rather than a denial of benefits,
we disagree and will vacate and remand.
I.
A.1
This case began with an all too common occurrence: a
car accident. Frank Favero’s car struck that of Alpizar-Fallas,
causing Alpizar-Fallas “serious injuries and damages,”
including substantial pain and suffering, expenses for medical
bills, and diminished earning capacity. A. 4-5. At the time of
1
On appeal from the grant of a motion to dismiss, the factual
allegations set forth below are derived from Alpizar-Fallas’s
complaint and are accepted as true. See Bridge v. Phoenix
Bond & Indem. Co., 553 U.S. 639, 642 n.1 (2008).
3
the accident, both Alpizar-Fallas and Favero were insured by
Progressive.
The morning following the accident, Barbosa, a
Progressive claims adjuster, contacted Alpizar-Fallas by
phone. He represented that he was a Progressive agent and
asked if he could come to her home to inspect the damage to
her car and have her sign “paperwork” that would “expedite
the processing of the property damage claim.” A. 2, 6.
Barbosa arrived about an hour later with multiple documents
for Alpizar-Fallas to sign. She alleged in her complaint that
he told her that her accident “had a questionable issue of
liability” and that her signature was “necessary” for
Progressive to advance the payment of her claim. A. 6.
Barbosa presented a document to Alpizar-Fallas that he
“required” her to sign and that he “expressly represented
would expedite the property damage claim of the accident.”
Id. In reliance on Barbosa’s statements, Alpizar-Fallas signed
the document.
Contrary to Barbosa’s assertions, the document was, in
fact, “a broadly written comprehensive general release of any
and all claims,” including claims against Favero for “any and
all known and unknown personal injuries resulting from the
motor vehicle accident.” A. 7. Alpizar-Fallas was unaware
of the legal significance of the release language in the
document, and Barbosa failed to alert her to it. Barbosa also
failed to advise Alpizar-Fallas to seek legal counsel and did
not communicate with her in Spanish, her native language.
Furthermore, he required that Alpizar-Fallas “sign the release
in his presence at her home.” Id.4
B.
Alpizar-Fallas commenced this action in New Jersey
state court against Favero, 2 seeking damages for the personal
injuries she sustained in the accident. She amended her
complaint to include a class action claim against Progressive
and Barbosa under the New Jersey Unfair Claims Settlement
Practices Regulations (“UCSPR”), N.J. Admin. Code §§
11:2-17.1 to -17.15, and the CFA, N.J. Stat. Ann. §§ 56:8-1 to
-210. Alpizar-Fallas again amended her complaint to name
the proper insurance carrier, and the defendants removed the
case to the U.S. District Court for the District of New Jersey.
Once in federal court, Progressive and Barbosa
(collectively, “Appellees”) moved to dismiss Alpizar-Fallas’s
class action claim for failure to state a claim. They lodged
several arguments: the UCSPR does not provide a private
right of action, the UCSPR precludes application of the CFA,
the CFA does not apply to schemes to defraud policyholders
of their benefits and personal injury claims, and Alpizar-
Fallas failed to properly plead a claim for relief under the
CFA. Specifically, with respect to their final argument,
Appellees contended that Alpizar-Fallas did not meet the
heightened pleading standard of Federal Rule of Civil
Procedure 9(b), did not plead an “ascertainable loss” as
required by the CFA, and did not allege a violation of the
CFA because Appellees were acting pursuant to Favero’s
insurance policy, not her policy, when Barbosa visited
Alpizar-Fallas’s residence.
2
She also named “John Doe 1-5” and “John Doe
Incorporated 1-5” as defendants, alleging that they may have
caused the accident. A. 2, 4.
5
C.
The District Court granted Appellees’ motion without
prejudice in an order and letter opinion. The District Court
first dismissed Alpizar-Fallas’s class action claim to the
extent it alleged a violation of the UCSPR because that set of
regulations does not provide a private right of action. Next,
the District Court dismissed Alpizar-Fallas’s CFA claim,
construing the CFA to only apply to the “sale or marketing”
of insurance policies. A. 40. Although the District Court
referred to our opinion in Weiss v. First Unum Life Insurance
Co., 482 F.3d 254, 266 (3d Cir. 2007), in which we held that
the CFA covers the performance of insurance policies, the
District Court opted to follow a more recent decision of the
New Jersey Superior Court Appellate Division, Myska v. N.J.
Manufacturers Insurance Co., 114 A.3d 761 (N.J. Super. Ct.
App. Div. 2015). Quoting Myska, the District Court noted
that the CFA does not apply to “an insurance company’s
refusal to pay benefits.” A. 40 (citation and internal quotation
marks omitted) (emphasis added). The District Court viewed
the facts of Alpizar-Fallas’s case as similar to those in Myska,
where the plaintiff attacked an insurance company’s
“systematic practice of denying, obfuscating coverage of, or
otherwise avoiding claims by New Jersey consumers.” Id.(quoting Myska, 114 A.3d at 767) (emphasis in original)
(internal quotation marks omitted). The District Court also
noted that the Myska court “distinguished Weiss as involving
the ‘fraudulent discontinuation of previously authorized
benefits.’” A. 41 (quoting Myska, 114 A.3d at 777).
Thereafter, the District Court, upon Alpizar-Fallas’s
motion and the agreement of the other parties, entered a
consent order, amending its dismissal to one with prejudice
6
and remanding the remaining personal injury claims to New
Jersey state court. Alpizar-Fallas filed this timely appeal.
II.
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1332(d) and 1453. This Court has jurisdiction
pursuant to 28 U.S.C. § 1291. We review a district court’s
dismissal for failure to state a claim under Rule 12(b)(6) de
novo, In re Lipitor Antitrust Litig., 868 F.3d 231, 249 (3d Cir.
2017), and “must consider only the complaint, exhibits
attached to the complaint, matters of public record, as well as
undisputedly authentic documents if the complainant’s claims
are based upon these documents,” Mayer v. Belichick, 605
F.3d 223, 230 (3d Cir. 2010). We accept all factual
allegations in the complaint as true and draw all reasonable
inferences in the plaintiff’s favor. West Penn Allegheny
Health Sys., Inc. v. UPMC, 627 F.3d 85, 91 (3d Cir. 2010).
III.
On appeal, Alpizar-Fallas contends that the District
Court erred in dismissing her CFA claim because the
allegations of her complaint set forth the type of harm that the
CFA is designed to remedy.3 In opposition, Appellees argue
that her CFA claim is precluded by the UCSPR, that her
allegations are not within the scope of the CFA, and that her
pleading fails to conform to the requirements of the CFA and
Federal Rule of Civil Procedure 9(b).
3
She does not appeal the District Court’s dismissal of her
UCSPA claim.
7
A.
In determining the extent to which the CFA applies to
the performance of insurance contracts, we must predict how
the New Jersey Supreme Court would rule if faced with the
issue. Covington v. Continental Gen. Tire, Inc., 381 F.3d
216, 218 (3d Cir. 2004) (citation omitted). In doing so, we
must consider:
decisions of state intermediate
appellate courts, of federal courts
interpreting that state’s law, and
of other state supreme courts that
have addressed the issue, as well
as to analogous decisions,
considered dicta, scholarly works,
and any other reliable data
tending convincingly to show how
the highest court in the state
would decide the issue at hand.
Spence v. ESAB Grp., Inc., 623 F.3d 212, 216-17 (3d Cir.
2010) (citation and internal quotation marks omitted).
Intermediate state court decisions are relevant and should not
be disregarded unless we are “convinced by other persuasive
data that the highest court of the state would decide
otherwise.” Covington, 381 F.3d at 218 (quotation marks and
citation omitted).
1.
In relevant part, the CFA prohibits:
8
[t]he 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 or
omission, 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 . . . .
N.J. Stat. Ann. § 56:8-2 (emphasis added). This provision
may be enforced by individual consumers, who may be
compensated for violations with treble damages. Id. §§ 56:8-
2.11 to -2.12, 56:8-19. Additionally, the CFA’s “rights,
remedies and prohibitions” are explicitly cumulative to those
created by other sources of law. Id. § 56:8-2.13.
The CFA is intended to “combat the increasingly
widespread practice of defrauding the consumer.” Cox v.
Sears Roebuck & Co., 647 A.2d 454, 460 (N.J. 1994)
(quoting S. Comm., Statement to the Senate Bill No. 199
(N.J. 1960)) (internal quotation marks omitted). In enacting
the CFA, the New Jersey Legislature intended to “give New
Jersey one of the strongest consumer protection laws in the
9
nation.” Id. (citing Governor’s Press Release for Assembly
Bill No. 2402, at 1 (Apr. 19, 1971)). Therefore, its history “is
one of constant expansion of consumer protection,” Gennari
v. Weichert Co. Realtors, 691 A.2d 350, 364 (N.J. 1997), and
it “should be construed liberally in favor of consumers,” Cox,
647 A.2d at 461.
2.
The New Jersey Supreme Court addressed whether the
sale of insurance is covered by the CFA in Lemelledo v.
Beneficial Management Corp., 696 A.2d 546 (N.J. 1997).
There, the court was faced with the application of the CFA to
an insurance-related lending practice, namely, “loan
packing,” or “increasing the principal amount of a loan by
combining the loan with loan-related services, such as credit
insurance, that the borrower does not want.” Id. at 548. The
plaintiff alleged that the defendant, a financial services
company, led her to believe that she would not receive her
loan unless she also purchased other loan-related services
with it. She maintained this claim despite the fact that the
defendant provided a disclosure statement informing her that
she was not required to purchase the services. Id. at 549.
Although the CFA does not explicitly name insurance
policies as covered “merchandise,” the court held that “the
statute’s language is ample enough to encompass the sale of
insurance policies as goods and services that are marketed to
consumers.” Id. at 551 (emphasis added). In so holding, the
court noted that “several lower courts have held that the
payment of insurance benefits is not subject to the CFA,” but
since the issue was not squarely presented, declined to rule on
it. Id. (citing Nikiper v. Motor Club of Am. Cos., 557 A.2d
332, 336 (N.J. Super Ct. App. Div. 1989), certif. denied, 564
A.2d 863 (N.J. 1989); Pierzga v. Ohio Cas. Grp. of Ins. Cos.,
10
504 A.2d 1200, 1205 (N.J. Super. Ct. App. Div. 1986), certif.
denied, 517 A.2d 402 (N.J. 1986)); id. at 551 n.3.
In extending the CFA to the sale of insurance, the
Lemelledo court endorsed a broad application of the statute:
“The language of the CFA evinces a clear legislative intent
that its provisions be applied broadly in order to accomplish
its remedial purpose, namely, to root out consumer fraud.”
Id. at 551. Even though insurance was not named in the
statute, the court reasoned that the CFA “could not possibly
enumerate all, or even most, of the areas and practices that it
covers without severely retarding its broad remedial power to
root out fraud in its myriad, nefarious manifestations.” Id.The court also addressed whether application of the
CFA to the sale of insurance “would run counter to our
traditional reluctance to impose potentially inconsistent
administrative obligations on regulated parties.” Id. at 552.
In holding that application of the CFA was not precluded by
four other insurance-related statutes—the Consumer Loan
Act, the New Jersey Insurance Trade Practices Act (“ITPA”),
the Insurance Producer Licensing Act, and the Credit Life and
Health Insurance Act—the court noted “the strong and
sweeping legislative remedial purpose apparent in the CFA”
and found that the CFA’s cumulative remedies and private
right of action provisions “reflect an apparent legislative
intent to enlarge fraud-fighting authority and to delegate that
authority among various governmental and nongovernmental
entities . . . .” Id. at 553-55. Because all of the reviewed
statutes have the same goal, “namely, the prevention of fraud
and misrepresentation in the sale of credit and/or insurance,”
the CFA “simply complements” the others. Id. at 555.
11
We were guided by Lemelledo’s holding in Weiss v.
First Unum Life Insurance Co., where we addressed whether
the CFA covered the allegedly fraudulent practice of
discontinuing previously authorized benefit payments. 482
F.3d at 256, 265. In responding in the affirmative, we
predicted that the New Jersey Supreme Court would hold that
the CFA covers “fraud both in the initial sale (where the seller
never intends to pay), and fraud in the subsequent
performance (where the seller at some point elects not to
fulfill its obligations).” Id. at 266 (emphasis added). In doing
so, we highlighted the language of the statute, which
explicitly covers acts “in connection with . . . the subsequent
performance of such person as aforesaid,” and Lemelledo’s
“sweeping statements regarding the application of the CFA to
deter and punish deceptive insurance practices.” Id.(quotation marks and citation omitted).
3.
Appellees contend that the UCSPR precludes
application of the CFA in this case. Specifically, Appellees
argue that the ITPA, the statute pursuant to which the UCSPR
regulations were promulgated, creates a “direct and
unavoidable conflict” with the CFA because the former does
not offer a private right of action while the latter does. Br. for
Appellees at 14 (quoting Lemelledo, 696 A.2d. at 554). As
noted above, however, the New Jersey Supreme Court
directly addressed any potential conflict between the CFA
and the ITPA in Lemelledo and held that none exists. 696
A.2d at 555 (noting that the ITPA’s remedies are explicitly
cumulative).
12
Moreover, the fact that a private right of action exists
under the CFA but not the ITPA does not create a “direct and
unavoidable conflict” that would preclude application of the
CFA here. The Lemelledo court established a presumption
that the CFA applies in the face of potential conflicts. Id. at
553-54. This presumption can only be rebutted by “a direct
and unavoidable conflict” between the CFA and other
regulatory schemes. Id. at 554. In determining whether such
a conflict exists, a court should consider whether the other
regulation or regulations “deal specifically, concretely, and
pervasively with the particular activity, implying a legislative
intent not to subject parties to multiple regulations that, as
applied, will work at cross-purposes.” Id. Furthermore, “the
conflict must be patent and sharp, and must not simply
constitute a mere possibility of incompatibility.” Id. For
example, in Daaleman v. Elizabethtown Gas Co., 390 A.2d
566 (N.J. 1978), the New Jersey Supreme Court rejected
application of the CFA to the rate-setting of a privately
owned public utility, reasoning that “application of the CFA .
. . could . . . lead to the anomalous result of a tariff approved
by the [Public Utilities Commission] but rejected and
penalized by the Division of Consumer Affairs or the courts
applying the CFA.” Lemelledo, 482 F.3d at 553.
The allowance of a private right of action in
conjunction with regulatory action does not amount to “a
direct and unavoidable conflict” reproved by Lemelledo.
First, the New Jersey Supreme Court has explicitly authorized
multiple remedies of these types, stating that the allowance of
a cause of action for damages in one statute does not
“inhibit[] enforcement of . . . other statutes, because a court
can assess damages in addition to any other penalty to which
a defendant is subject.” Id. at 555. Second, regulation by the
13
New Jersey Department of Banking and Insurance under the
UCSPR would not be inconsistent with Alpizar-Fallas’s CFA
claim to the same extent as the potential conflict with utility
rate-setting in Daaleman, since, in this case, both would
potentially punish unlawful behavior and neither would
affirmatively approve the same conduct. Finally, the
remedies of both the CFA and the ITPA are explicitly
cumulative, which “reflect[s] an apparent legislative intent to
enlarge fraud-fighting authority and to delegate that authority
among various governmental and nongovernmental entities,
each exercising different forms of remedial power.” Id. at
553. For these reasons, we reject Appellees’ argument that
application of the CFA to this case is precluded by the
UCSPR.
4.
Appellees rely, as did the District Court, on Myska for
the proposition that the denial of benefits is outside the scope
of the CFA. See Myska v. N.J. Mfrs. Ins. Co., 114 A.3d 761,
777 (N.J. Super. Ct. App. Div. 2015). In Myska, the
defendant insurance company had denied the plaintiffs’
claims for payment for diminution of value of their cars after
they had been damaged in accidents. Id. at 765-67. In
finding the plaintiffs’ allegations outside the scope of the
CFA, the court reasoned that the CFA “was not intended as a
vehicle to recover damages for an insurance company’s
refusal to pay benefits.” Id. at 777. Because “the essence of
plaintiffs’ causes of action involved whether they filed and
supported a claim for a specified amount of benefits under
their respective policies,” their claims were not cognizable
under the CFA. Id.14
That case is inapposite. Here, Alpizar-Fallas alleges
neither that she filed an insurance claim nor that she was
denied any benefits. Instead, the allegations in her complaint
fall squarely within the language of the CFA and our holding
in Weiss. Specifically, she alleges the following:
 Alpizar-Fallas “relied on the express false
representations of the agent and/or employee of her
insurance company’s claims adjuster—Defendant
Barbosa—that the documents he prepared and
delivered to her needed to be signed merely to
facilitate her receipt of the money for the damages to
her motor vehicle;”
 Barbosa “falsely represented the nature of the
documents that [she] signed;”
 “The document, prepared by the [Appellees,] was in
fact a broadly written comprehensive general release
of any and all claims;”
 “Plaintiff reasonably relied on the materially false
representations of [Appellees] when she signed the
documents since Defendant Barbosa, [sic] represented
to [Alpizar-Fallas] that he was an agent of [her] own
insurance company, Progressive;”
 “[Appellees] and others at the insurance company have
engaged in this same pattern of unlawful conduct with
respect to other similarly situated individuals;” and
15
 “As a result of this deceptive and unconscionable
practice, present and former insurance policy holders
of Defendant, Progressive[,] have continued to be
stripped of their rights to pursue claims against other
policy holders of Progressive Garden State Insurance
Company due to the [Appellees’] false and misleading
representations . . . .” A. 7-8.
These facts, taken together, amount to an allegation of fraud
in connection with the subsequent performance of a consumer
contract, a situation explicitly covered by the language of the
CFA, sanctioned by this Court in Weiss, and supported by the
New Jersey Supreme Court’s broad statements regarding the
application of the CFA.4
4
Appellees also contend that because Barbosa was acting
pursuant to Favero’s policy when he met with Alpizar-Fallas
in her home, Alpizar-Fallas is not a consumer protected by
the CFA for purposes of this interaction. Because Appellees
failed to argue this before the District Court, this argument is
waived. Gass v. Virgin Islands Tel. Corp., 311 F.3d 237, 246
(3d Cir. 2002). Even if not waived, Appellees’ contentions
are not supported by Alpizar-Fallas’s complaint, which is the
only document we can consider on this motion to dismiss.
See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
Instead, Alpizar-Fallas alleged that “Barbosa[] represented to
Plaintiff . . . that he was an agent of Plaintiff’s insurance
company Progressive, and that he was in the neighborhood
and that Plaintiff’s insurance company wanted him to visit the
Plaintiff . . . ,” and that she “relied on the materially false
representations of [Barbosa] when she signed the documents
since [he] represented to the Plaintiff that he was an agent of
16
In sum, we predict that the New Jersey Supreme Court
would apply the CFA to Alpizar-Fallas’s claim, where an
insurance company is alleged to have fraudulently performed
a contract with a consumer. Accordingly, we conclude that
Alpizar-Fallas stated a viable claim under the CFA.
B.
Finally, Appellees argue that Alpizar-Fallas’s
complaint does not conform to the heightened pleading
requirement of Federal Rule of Civil Procedure 9(b) and does
not allege an “ascertainable loss” as required by the CFA.
We reject both of these arguments.
1.
Federal Rule of Civil Procedure 9(b) requires that “[i]n
alleging fraud or mistake, a party must state with particularity
the circumstances constituting fraud or mistake.” This has
been interpreted to require that plaintiffs “state the
circumstances of the alleged fraud with sufficient particularity
to place the defendant on notice of the ‘precise misconduct
with which [it is] charged’” and “plead or allege the date,
time and place of the alleged fraud or otherwise inject
precision or some measure of substantiation into a fraud
allegation.” Frederico v. Home Depot, 507 F.3d 188, 200 (3d
Cir. 2007) (alteration in original) (citation omitted). In her
complaint, Alpizar-Fallas alleged the precise events
the Plaintiff’s own insurance company, Progressive.” A. 6-7
(emphasis added). Therefore, Alpizar-Fallas has alleged
fraud in conjunction with the performance of her own
insurance policy.
17
surrounding her CFA claim. She pled the date, time, and
place of Appellees’ conduct and provided a detailed
description of that conduct. Therefore, her allegations meet
Rule 9(b)’s standard.
2.
The CFA requires a plaintiff to allege “ascertainable
loss.” See N.J. Stat. Ann. § 56:8-19; D’Agostino v.
Maldonado, 78 A.3d 527, 536-37 (N.J. 2013). The New
Jersey Supreme Court has defined “ascertainable loss” as
“either an out-of-pocket loss or a demonstration of loss in
value that is quantifiable or measureable.” Marcus v. BMW
of N. Am., LLC, 687 F.3d 583, 606 (3d Cir. 2012) (quoting
Thiedemann v. Mercedes-Benz U.S.A., LLC, 872 A.2d 783,
792-93 (N.J. 2005)) (internal quotation marks omitted).
Furthermore, that court has held that such a loss “need not yet
have been experienced as an out-of-pocket loss to the
plaintiff.” Thiedemann, 872 A.2d at 793. The New Jersey
Superior Court Appellate Division has stated that a plaintiff is
not required to allege the nature of the loss or present
evidence of it at the motion to dismiss stage. Perkins v.
DaimlerChrysler Corp., 890 A.2d 997, 1003-04 (N.J. Super.
Ct. App. Div. 2006).
In Alpizar-Fallas’s complaint, she alleged that,
because of Appellees’ conduct, she and other class members
were “stripped of their rights to pursue claims against other
policy holders of Progressive . . . .” A. 8 (emphasis added).
In Alpizar-Fallas’s case, this means that she is unable to
recover certain losses from her accident with Favero, which
are detailed in the beginning of her complaint. Specifically,
she has required and will continue to require medical care;
18
has suffered “impairment of her earning capacity and power;”
has suffered and will continue to suffer “great pain, suffering
agony, mental anguish, embarrassment and humiliation;” has
been hindered and will be hindered “from attending to her
daily duties, functions and occupation;” and will “continue to
incur other financial losses or expenses.” A. 4-5. These
allegations are sufficient to demonstrate a “loss in value that
is quantifiable or measureable .”5
IV.
For the foregoing reasons, we will vacate the District
Court’s dismissal and remand for further proceedings
consistent with this opinion.
5
Appellees also argue that there were “no damages at all”
because Alpizar-Fallas “was paid for her claim against
Favero.” Br. of Appellees at 19. Because this was not
alleged in the complaint, we will not consider it at the motion
to dismiss stage. See Mayer v. Belichick, 605 F.3d 223, 230
(3d Cir. 2010).
19