X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

MEMORANDUM OPINION AND ORDER Plaintiff Interboro Packaging Corp. brings this action against defendant Capital Plastics International, Inc., for breach of contract, breach of warranty, and fraud. (Doc. # 19 (“AC”)). Now pending is defendant’s motion to dismiss the fraud claim (the third cause of action) in the amended complaint pursuant to Rules 9(b) and 12(b)(6). (Doc. # 22). For the following reasons, the motion is GRANTED. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §1332. BACKGROUND For the purposes of ruling on the motion, the Court accepts as true all well-pleaded allegations in the amended complaint and draws all reasonable inferences in plaintiff’s favor, as summarized below. Plaintiff, a plastic-bag wholesaler, alleges it purchases plastic-bag-and-liner products from defendant, a manufacturer, for resale to plaintiff’s customers. Plaintiff further alleges that between 2017 and 2019, defendant either failed to ship goods, delayed the shipment of goods, or shipped defective goods to a number of plaintiff’s clients in violation of the parties’ contractual agreement. According to plaintiff, defendant intentionally misrepresented its ability to supply plaintiff with conforming goods at the agreed-upon pricing and delivery times. Plaintiff further contends it relied on these misrepresentations when making bids on contracts with customers. Plaintiff claims that because of defendant’s alleged misrepresentations, it lost some customers, suffered impaired relationships with others, and was forced to purchase alternative goods to cover the loss of products it expected to receive from defendant. DISCUSSION I. Standard of Review In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).1 First, plaintiff’s legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679. To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556). II. Fraud Claim Defendant argues the fraud claim must be dismissed because plaintiff fails to plead what fraudulent statements were made, who made them, to whom, and when they were made. The Court agrees. A claim for fraud under New York law requires a showing of “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Lama Holding Co. v. Smith Barney, Inc., 88 N.Y.2d 413, 421 (1996). In addition, Rule 9(b) provides “a party must state with particularity the circumstances constituting fraud.” Thus, the complaint must: “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006). Lastly, “[t]o meet the requirements of Rule 9(b) a plaintiff must show the manner in which he was damaged by the implementation of a deceptive or manipulative practice or by a misrepresentation or omission.” Moran v. Kidder Peabody & Co., 609 F. Supp. 661, 665 (S.D.N.Y. 1985), aff’d, 788 F.2d 3 (2d Cir. 1986). Here, plaintiff fails to allege any fraudulent statement, much less the identity of any speaker or where and when such statements were made. At most, plaintiff alleges defendant, “[t]hrough its course of conduct, as well as verbal and written and electronic communications…acknowledged and recognized the importance of” defendant’s contractual performance to plaintiff’s bidding on customer contracts, and thereby represented defendant was capable of performing. (AC

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
November 27, 2024
London

Celebrating achievement, excellence, and innovation in the legal profession in the UK.


Learn More
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More

INTELLECTUAL PROPERTY PROSECUTION PARALEGAL - NEW JERSEY OR NEW YORK OFFICESProminent mid-Atlantic law firm with multiple regional office lo...


Apply Now ›

Experienced Insurance Defense Attorney.No in office requirement.Send resume to:


Apply Now ›

The Republic of Palau Judiciary is seeking applicants for one Associate Justice position who will be assigned to the Appellate Division of ...


Apply Now ›