DECISION AND ORDER Plaintiff, on behalf of herself and a putative class of individuals who purchased the subject product in the state of New York, brings this action against Big Lots, Inc. (“defendant”). Plaintiff alleges that defendant manufactured, marketed and sold 24.2 oz. canisters of Fresh Finds-brand Columbian coffee (the “Product”) which were incapable of producing the “up to 210 suggested strength 6 fl. oz. servings” advertised on the label, when prepared according to the label’s instructions. Plaintiff asserts causes of action for deceptive marketing under N.Y. General Business Law (“GBL”) §§349 and 350, breach of express warranty, breach of the implied warranty of merchantability, violation of the Magnuson Moss Warranty Act, 15 U.S.C. §2301 et seq., negligent misrepresentation, fraud, and unjust enrichment, and seeks compensatory, statutory, and punitive damages. (Dkt. #1).1 Defendant now moves to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(1) and 12(b)(6), and failure to plead fraud with particularity. (Dkt. #17). For the reasons that follow, that motion is granted. FACTUAL BACKGROUND Plaintiff alleges that she purchased the Product multiple times between 2019 and 2021, “among other times,” at defendant’s stores. She also alleges that she read and relied upon the label’s representation that the Product contained a sufficient amount of ground coffee to produce approximately “up to 210″ 6-oz. servings of coffee when the label’s instructions were followed, but that when she followed the instructions for single servings, she was unable to “brew anywhere close” to 210. (Dkt. #1 at
4, 7, 8, 10, 11, 57, 58). Plaintiff claims that “[i]ndependent laboratory analysis” determined that following the same instructions yielded only 152 “cups” of coffee. She contends that, had she known that she could only make 152 servings of coffee when following the package directions for single servings, she would not have purchased the Product. Moreover, plaintiff alleges that her discovery of the alleged discrepancy on the Product label has made her a fearful and embittered shopper, who “wants to purchase ground coffee,” but finds herself “unable to rely on the labeling of not only this Product, but other brands and varieties of ground coffee, because she is unsure of whether their representations are truthful about how much coffee they actually contain.” (Dkt. #1 at
