I. INTRODUCTION Pending before the Court is Defendants’ motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 7. II. BACKGROUND1 This action arises out of Plaintiff’s purchase of feminized hemp seed. See Dkt. No. 1, Complaint, at 24. Plaintiff’s Chief Agricultural Officer, Nicolas Guarino, met with Defendant Sack and representatives of Defendants Organic Growers LLC and Eagle Springs Organic LLC (“Eagle Springs”) in May 2019 at Defendants’ farm. See id. at 18. Defendant Sack owns and operates Defendants Organic Growers and Eagle Springs. See id. at 8. Mr. Guarino explained to Defendant Sack that Plaintiff was only interested in purchasing feminized hemp seed with no hermaphrodites or male plant seeds. See id. at 20. Defendant Sack told Mr. Guarino that Defendants Organic Growers and Eagle Springs could produce feminized industrial hemp seeds with a germination rate greater than 90 percent. See id. at 19. Defendant Sack also explained to Mr. Guarino that the seeds were tested through the Colorado Department of Agriculture. See id. at 22. Furthermore, Defendant Sack informed Mr. Guarino that the seeds available for purchase met all industry standards for feminized seeds, including those in the Federal Seed Act and the Colorado Seed Act. See id. at 19. Defendant Sack repeatedly affirmed that the feminized hemp seed contained no male plant seeds or hermaphrodites. See id. at 45. Rather, Defendant Sack stated that the seeds produced high quality feminized plants with high CBD and low THC content. See id. After meeting with Mr. Guarino in May 2019, Defendant Sack had numerous follow up phone conversations with other representatives of Plaintiff located in New York. See id. at 23. During those conversations, Defendant Sack reassured Plaintiff’s representatives that Defendant Organic Growers’ seeds had a germination rate greater than 90 percent and met all industry standards. See id. Based on Defendant Sack’s statements, Plaintiff ordered 200,000 feminized seeds from Defendant Organic Growers (hereinafter the “Contract”) on May 16, 2019.2 See id. at 24. The shipping label Defendant Organic Growers included with Plaintiff’s order contained the following information about the seeds purchased: (1) The Colorado Department of Agriculture licensed Defendant Organic Growers to sell seeds under Seed Registration No. 0035CB from March 1, 2019, to April 28, 2020. (2) The variety of the feminized seed sold was “BB2 Cherry Mom and Wu #5″. (3) The package date of the seeds was May 21, 2019. (4) A seed germination test was conducted on March 20, 2019. (5) The germination rate was 84 percent. (6) The percentage of dormant hard seed was 8 percent. (7) The percentage of noxious weed seed was 0 percent. (8) The percentage of other seed present was 0 percent. (9) The purity of the seeds was 96.42 percent. (10) The average number of seeds per pound was 33,500. (11) The flowering time for the seeds was listed as approximately 8 weeks. (12) “NO WARRANTY to the levels of THC in your hemp plants. We recommend you start testing your hemp plants around WEEK 3 of flowering for best results.” (13) “Possibility for intersex traits xx pollen progenitors/xx males. Walk the fields to remove any male plants.” See Dkt. No. 7-5. The Colorado Seed Laboratory report also provided information to Plaintiff about the seeds: (1) The testing was completed on March 26, 2019. (2) The BB2 hemp seeds were tested. (3) The germination rate was 84 percent. (4) The percentage of dormant seed was 8 percent. (5) The percentage of noxious weed seed was 0 percent. (6) The percentage of other seed present was 0 percent. (7) The purity of the seeds was 96.42 percent. (8) The average number of seeds per pound was 33,077. See Dkt. No. 7-7. The seeds Plaintiff purchased did not reflect the quality Defendant Organic Growers represented orally and in writing on the shipping label. See id. at 55. In June 2019, Plaintiff discovered the purchased seeds yielded germination rates at or below 30 percent. See id. Plaintiff contacted Defendant Organic Growers, and it offered to supply 90,000 replacement seeds of the quality originally agreed on in the Contract. See id. at 56. Plaintiff accepted delivery of the replacement seeds. See id. at 57; Dkt. No. 7-5. However, the replacement seeds were overabundant with dormant seeds, riddled with male and hermaphrodite seeds, and yielded germination rates well below 90 percent. See id. at 58. Plaintiff claims that it lost up to 75 percent of its crop and the cost of manpower necessary to remove the significant number of male plants in the fields. See id. at 59. Furthermore, Plaintiff claims a loss of biomass for use in the production of CBD oil, loss of revenue from the sale of CBD oil, and loss of revenue from the inability to produce CBD oil for resale to others. See id. Based on these allegations, Plaintiff asserts the following four causes of action: (1) Fraudulent misrepresentation for deceiving Plaintiff about the true character and quality of the feminized seed they offered to sell, see Dkt. No. 1 at
41-58; (2) Breach of warranty pursuant to U.C.C. §2-313, §2-314, and §2-318 with regard to the first shipment of seeds, see id. at
