OPINION AND ORDER Plaintiff Pall Corporation (“Plaintiff” or “Pall”) filed this action against Defendant CleanSpace Modular, LLC (“Defendant” or “CleanSpace”) alleging negligent misrepresentation (“Count I”), breach of contract (“Count II”), breach of the implied covenant of good faith and fair dealing (“Count III”), and unjust enrichment (“Count IV”). ECF No. 1 (“Compl.”)
44-70. Plaintiff “demands a trial by jury on all issues triable by a jury as a matter of right.” Id. at 9. Defendant now moves under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) to dismiss Counts I, III, and IV of the Complaint. ECF No. 20 (“Dismiss Br.”). Defendant also moves under Rule 39(a) to strike Plaintiff’s jury demand. ECF No. 22 (“Strike Br.”). Plaintiff opposes both motions. ECF Nos. 26 (“Strike Opp.”), 27 (“Dismiss Opp.”). Plaintiff also requests leave to amend if the Court dismisses any of its claims. Dismiss Opp. at 11. For the reasons given below, the Court GRANTS Defendant’s motion to dismiss Counts I and Count III, DENIES Defendant’s motion to dismiss Count IV, DENIES Defendant’s motion to strike Plaintiff’s jury demand without prejudice, and GRANTS Plaintiff’s request for leave to amend. BACKGROUND The following facts are taken from the Complaint, the Master Services Agreement (the “MSA”), and the Statement of Work (the “SOW”); the latter two documents are attached to the Complaint. See Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (on a motion to dismiss, a court may consider documents appended to the complaint). The Court assumes the Complaint’s allegations to be true for the purpose of deciding Defendant’s motion and construes them in the light most favorable to Plaintiff. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). On December 17, 2020, Plaintiff and Defendant entered into the MSA. Compl. 6; see ECF No. 1-1 (“MSA”). The MSA says that the services provided by Defendant “will be described in a statement of work substantially in the form attached” to the MSA. MSA §1.2. Plaintiff and Defendant executed the SOW on May 4, 2021. Compl. 8; see ECF No. 1-2 (“SOW”). The parties treat the MSA and the SOW as a single “Timonium Contract,” and the Court will do the same. See Compl. 10; Dismiss Br. at 2. The parties agree that the Timonium Contract is valid and binding. See Compl. 10; Dismiss Br. at 10 n.2. The Timonium Contract provided for the construction of two “cleanroom[s],” SOW §1.2, which are “room[s] or enclosure[s] in which dust, microorganisms, and other contaminants are eliminated or reduced to very low levels, esp[ecially] for the purpose of manufacturing electronic components and some types of medical equipment,” Clean room, Oxford English Dictionary, https://www.oed.com/dictionary/clean-room_n (last visited Oct. 28, 2023). Defendant agreed “to design, procure materials for, and construct two cleanrooms in accordance with [Plaintiff's] guidelines, specifications, and requirements, specifically the temperatures of the two cleanrooms.” Compl. 12. In exchange, Plaintiff promised to pay Defendant $2,650,000. Id. 13. The agreed-upon deadline for completion was May 7, 2021. Id. 14. The MSA also contained the following clause: 16.17. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. MSA §16.17. Defendant “failed to construct the two cleanrooms, as required by the Timonium Contract.” Compl. 15. Plaintiff attributes this failure to Defendant’s “poor project management,” “failure to obtain the proper permits required for the cleanrooms,” and “failure to pay its vendors.” Id. 16. Defendant also installed faulty heating, ventilation, and air condition (“HVAC”) systems in both cleanrooms, which “interfered with both cleanrooms’ respective temperature regulation.” Id. 17. Plaintiff “attempted to mitigate the respective damages for both inoperable cleanrooms,” id. 20, at a total cost exceeding $420,000, id. 21. Defective cleanrooms are not the only asserted source of frustration for Plaintiff. Defendant “placed numerous charges wholly unrelated to the Timonium Contract on [Plaintiff's] credit card.” Id. 22. On September 22, 2021, Defendant “charged [Plaintiff's] credit card numerous times” for a total of $1,045,000. Id. 25. Plaintiff says that it cannot reconcile these charges (the “Credit-Card Charges”) with any valid charges related to the Timonium Contract. Id. 26. Further, on November 24, 2021, Defendant “informed [Plaintiff] that it had received invoices from EquipmentShare, a third-party vendor that provided chilling equipment which was being used to construct the two cleanrooms.” Id. 27. The total amount due on the invoices was $79,734.28. Id. 28. Despite Plaintiff telling Defendant that Plaintiff would pay EquipmentShare directly, Defendant submitted the invoices to Plaintiff. See id.
