LS-NJ PORT IMPERIAL LLC v. A.O. SMITH WATER PRODUCTS COMPANY, No. 2:2022cv01687 - Document 45 (D.N.J. 2022)

Court Description: OPINION. Signed by Judge Evelyn Padin on 12/8/2022. (ld, )

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LS-NJ PORT IMPERIAL LLC v. A.O. SMITH WATER PRODUCTS COMPANY Doc. 45 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 1 of 19 PageID: 374 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY LS-NJ PORT IMPERIAL LLC, Plaintiff, No. 22cv1687 (EP) (JSA) v. OPINION A.O. SMITH WATER PRODUCTS COMPANY (a Division of A.O. Smith Corporation), JOHN DOE(S) 1-50 and ABC COMPANIES, Defendants. PADIN, District Judge. Presently before the Court is Defendant A.O. motion to dismiss Counts I (Breach of Contract), II (Breach of the Covenant of Good Faith and Fair Dealing), VI (Violation of the New Jersey Consumer Fraud Act), VII (Negligent Misrepresentation), VIII (Intentional Misrepresentation), and IX (Unjust Enrichment) of Plaintiff LS- under Federal Rule of Civil Procedure 12(b)(6). D.E. 12. and decides the motion without oral argument. See Fed. R. Civ. P. 78(b); D.N.J. Civ. R. 78.1(b). For the reasons stated below, motion is GRANTED in part (as to Counts I, II, VI, VII, and VIII) and DENIED in part (as to Count IX). Dockets.Justia.com Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 2 of 19 PageID: 375 I. BACKGROUND1 A. Factual Background A.O. Smith is the largest manufacturer and marketer of water heaters in North America. D.E. 8 ¶ 1. Port Imperial is part-owner of a residential development located in Weehawken, New Jersey . This action arises out of hase of four allegedly defective A.O. Smith-manufactured BTP-200-1250 water heaters ( A.O. Smith, through their representative Wales- Water Heaters ) sold by - a subcontracto Id. ¶ 2. The Water Heaters were purchased during the initial construction and development of the Premises Project. Belle, in turn, entered into a subcontract with F&G Mechanical to perform plumbing and related work, including the installation of [the] Id. ¶ 11. the engineering firm hired for the Project, worked alongside F&G Mechanical in connection with specifying the water heating equipment and coordinating its installation at the [Premises]. Id. WSP and F&G Mechanical were acting on behalf of [Port Imperial] during the entire relevant period. Id. 2 for the purchase of [the four Water Heaters], which A.O. Smith, through its authorized representative Wales Darby, knowingly sold to F&G Mechanical so that the Water Heaters could be used for the 1 For the purposes of this Opinion, the Court accepts as true all of the c -pled factual allegations. 2 Port Imperial has appended a copy of this Purchase Order to its amended complaint. See D.E. 8 at Ex. A. 2 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 3 of 19 PageID: 376 Id. ¶ 20. al Order was submitted on Id. ¶ 21. or about January 2020, [Port Imperial] discovered that one of the [Water Heaters] Id. This first [W]ater [H]eater completely corroded as a result of the leak and was deemed Id. [Water Heater] was failing due to a tank leak and was taken offline shor [Water Heaters] Id. ¶ 30. Id. ¶ 34. Port Imperial avers that it was induced to purchase the four Water Heaters based on certain material misrepresentations made by A.O. Smith about the quality and durability of its products. Id. ¶ 13. For example, [u]pon information and belief, A.O. Smith and/or one or more of its Service Engineer of the Water Heaters, and misrepresented during those calls that the Water Heaters would be Id. s also purportedly make express misrepresentations about the quality and durability of their products because they state, in relevant part, that: Every water heater that carries the A.O. Smith name has a reputation to live up to . . . . So, when you choose an A.O. Smith water heater, . . . you can be confident that you are getting the best water heating solution regardless of the application today and for years to come. water heaters Id. ¶ 17. A.O. Smith fraudulently advertise 3 for specification materials for its commercial that heavy-duty industrial-grade water Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 4 of 19 PageID: 377 heaters are designed and built to handle the most demanding hot water heating requirements of large commercial and industrial users. Id. ¶ 18. Port Imperial also claims that A.O. Smith deliberately withheld material information about the Water Heaters. More specifically, it alleges that, [u]pon information and belief, A.O. Smith knew, or should have known, that the tanks for [its BTP-200-1250 water heaters] were experiencing premature failures and leaks that could potentially result in a total loss of the heating systems, and deliberately and/or negligently failed to disclose these conditions prior to selling the Water Heaters to F&G Mechanical for use at Premises. Id. ¶ 41. Further, and again [u]pon information and belief, A.O. Smith received many complaints from other customers, complaining that the same model water heaters sold to F&G Mechanical were defective and experiencing premature failures. Id. ¶ 42. And finally, [u]pon information and belief, A.O. Smith s BTP-200-1250 Water Heaters were discontinued due to repeated complaints related to the product s premature failures involving, among other things, tank leaks resulting from their Id. ¶ 53. B. Procedural History Port Imperial initiated this action in New Jersey Superior Court on February 25, 2022. D.E. 1. On March 25, 2022, A.O. Smith removed this action on the basis of federal question jurisdiction, given -Moss Warranty Act, 15 U.S.C. § 2301, et seq. Id. Port Imperial has not challenged removal, and the Court is satisfied that it has jurisdiction to adjudicate the present matter. On April 22, 2022, Port Imperial amended its original pleading. D.E. 8. first amended complaint asserts the following claims against A.O. Smith: Count I Contract; Count II Breach of Breach of the Covenant of Good Faith and Fair Dealing; Count III 4 Breach Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 5 of 19 PageID: 378 of Express Warranty; Count IV Breach of Implied Warranty of Fitness for a Particular Purpose; Count V Violation of the Magnuson-Moss Warranty Act; Count VI Violation of the New Jersey Consumer Fraud Act; Count VII Misrepresentation; and Count IX Negligent Misrepresentation; Count VIII Intentional Unjust Enrichment. Id. On May 6, 2022, A.O. Smith filed its motion to dismiss Counts I, II, VI, VII, VIII, and IX pursuant to Federal Rule of Civil Procedure 12(b)(6). D.E. 12. On June 7, 2022, Port Imperial filed its opposition. D.E.s 15, 16. A.O. Smith filed its reply on June 14, 2022. D.E. 18. II. LEGAL STANDARD Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed factual allegations. However, the Twombly, 550 U.S. at 570; see also West Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, . Id. Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a claim upon which relief can be granted. As the moving party, the defendant bears the burden of showing that no claim has been stated. Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of the motion, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014). 5 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 6 of 19 PageID: 379 In addition, Rule 9(b) imposes a heightened pleading standard on fraud-based claims, Klein v. Gen. Nutrition Companies, Inc., 186 F.3d 338, 344 (3d Cir. 1999). [R]ule 9(b) may be satisfied if the complaint describes the circumstances of the alleged fraud with precise allegations of date, time, or place or by using some means of injecting precision and some measure of substantiation into the Board of Trs. of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 173 n.10 (3d Cir. 2002) (internal quotations omitted) (emphasis in original). III. ANALYSIS A. Breach of Contract (Count I) Count I of Port Imperial of its breach of contract nded complaint specifically alleges the following in support A valid and binding contract existed between [Port Imperial] and A.O. Smith because F&G Mechanical, acting on behalf, sent A.O. Smith a Purchase Order offering to purchase [four] A.O. Smith [W]ater [H]eaters . . . and said Purchase Order was accepted by A.O. Smith. 8 ¶ 58. performed its obligations under such contract, including but not limited to paying A.O. Smith $113,900.00 for the subject Water Heaters. Id. A.O. Smith breached its contract with [Port Imperial] by, among other things, [] failing to provide suitable and functional water heaters for use at the Premises; . . . [and] by otherwise failing to conform the goods to be suitable for [Port intended purpose under the Parties contract. Id. ¶ 65. A.O. Smith moves to dismiss this claim on two grounds: First, it argues that no formal contract exists between A.O. Smith and Port Imperial. D.E. 12-1 at 25. Second, it claims that Port Imperial fails to adequately allege the breach of any contractual duty. Id. at 27. 6 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 7 of 19 PageID: 380 breach of contract claim to survive Rule 12(b)(6) dismissal, it must allege facts which sufficiently demonstrate: . . and Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007). i.e., that no formal contract exists between contract claim. suggests that there was ever a written contract signed by both Port Imperial and A.O. Smith for the purchase of the Water Heaters. Indeed, Port Imperial specifically avers that its purchase of the Water Heaters was Wales 8 ¶ 20. The absence of a direct written contract between A.O. Smith and Port Imperial, however, is not fatal to this claim, so long as the parties that entered into the contractual agreement were See Beth Schiffer Fine Photographic Arts, Inc. v. Colex Imaging, Inc., Civ. No. 10-05321, 2012 WL 924380 (D.N.J. Mar. 19, 2012) (discussing principles of agency ship between the parties and should not accord N.J. Stat. Ann. § 12A:2-201 contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker (emphasis added). Moreover, Port Imp amended A.O. Smith $113,900.00 for the subject Water Heaters See D.E. 8 ¶ 59. 7 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 8 of 19 PageID: 381 In light of these considerations, the Court finds that complaint plausibly suggest that a contractual relationship existed between Port Imperial and A.O. Smith. This remains true notwithstanding that the Purchase Order which initiated that sale was effectuated by the part The Court does, however, agree with A.O. Smith that allege facts which adequately demonstrate that A.O. Smith breached any specific contractual duty which it owed to Port Imperial. Here, Port Imperial specifically alleges only that it entered a contract to purchase four BTP-200-1250 water heaters from A.O. Smith. There is nothing in Port the terms of the parti contractual agreement were not otherwise honored by A.O. Smith. Indeed, while Port Imperial alleges that these four Water Heaters were ultimately defective, it fails to reference any which A.O. Smith breached as a result. Count I will accordingly be dismissed, without prejudice, for this reason. See Red Hawk Fire & Sec., LLC v. Siemens Indus. Inc., 449 F. Supp. 3d 449, 462 (D.N.J. 2020) The Amended Complaint fails to allege or identify a contractual provision on which this claim is based ; see also Frederico, 507 F.3d at 204 Because it cannot be determined that Home Depot breached the agreement, it cannot be inferred that damages flowed from the breach B. Breach of the Covenant of Good Faith and Fair Dealing (Count II) In Count II of its amended complaint, Port Imperial alleges a claim for breach of the covenant of good faith and fair dealing. Every contract is deemed to contain that implied covenant. Wade v. Kessler Inst., 172 N.J. 327, 798 A.2d 1251, 1259 (2002). A c the other party has acted consistent with the contract s literal terms, but has done so in such a 8 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 9 of 19 PageID: 382 Id. at 1262 (quoting Bak-A-Lam Corp. of Am. v. Alcoa Bldg. Prods., Inc., 69 N.J. 123, 129 (1976)). To sufficiently plead a breach of the duty of good faith and fair dealing, a plaintiff must allege that (1) the defendant act[ed] in bad faith or with a malicious motive, (2) to deny the plaintiff some benefit of the bargain originally intended by the parties, even if that benefit was not an express provision of the contract. Red Hawk Fire, 449 F. Supp. 3d at 463 (quoting Yapak, LLC v. Mass. Bay Ins. Co., No. 09-3370, 2009 WL 3366464, at *2 (D.N.J. Oct. 16, 2009). Among other things, a defendant may breach the implied covenant of good faith and fair dealing if the plaintiff without an s intentional Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Associates, 182 N.J. 210, 226 (2005). pleading standard. As will be discussed in greater detail infra of factual allegations which plausibly suggest that A.O. Smith acted in bad faith or with a malicious motive when it sold the Water Heaters to Port Imperial. The pleading likewise fails to adequately plead that A.O. Smith made any intentionally misleading assertions upon which Port Imperial C. Unjust Enrichment (Count IX) To establish a claim for unjust enrichment under New Jersey law, that (1) at plaintiff s expense (2) defendant received a benefit (3) under circumstances that would Snyder v. Farnam Companies, 9 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 10 of 19 PageID: 383 Inc., 792 F. Supp. 2d 712, 723-24 (D.N.J. 2011). At the pleading stage, a pla allege facts sufficient to show: 1) Plaintiff conferred a benefit on Defendant; and 2) circumstances Palmeri v. LG Electronics USA, Inc., Civ. No. 07 CV 5706, 2008 WL 2945985, *5 (D.N.J. July 30, 2008) (citing Weichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1992)). Count IX of the amended complaint alleges that A.O. Smith has been unjustly enriched by retaining monies which Port Imperial paid to A.O. Smith for the allegedly defective Water Heaters. And further, receive what it paid for. Port Imperial has therefore adequately pled a claim for unjust enrichment. See Volin v. Gen. Elec. Co., 189 F. Supp. 3d 411, 422 (D.N.J. 2016) (unjust enrichment claim allege[d] that GE ha[d] been unjustly enriched by retaining the $1,087 Volin paid for the allegedly defective Gas Range and that GE s retention of that money [would be] unjust because Volin did not receive what she paid for dismiss Count IX is accordingly denied. D. New Jersey Consumer Fraud Act (Count VI) In Count VI, Port Imperial alleges that A.O. Smith violated the New Jersey Consumer Stat. Ann. § 56:8-1, et seq. Claims under the NJCFA require a plaintiff to allege the ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendants New Jersey Citizen Action v. ScheringPlough Corp., 367 N.J. Super. 8, 12-13 (App. Div.), cert. denied, 178 N.J. 249 (2003). Rule 9(b) imposes a heightened pleading requirement concerning allegations of fraud, including NJCFA 10 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 11 of 19 PageID: 384 claims, over and above that required by Rule 8(a). Hughes v. Panasonic Consumer Elecs. Co., No. CIV.A. 10-846 SDW, 2011 WL 2976839, at *10 (D.N.J. July 21, 2011). onduct prohibited by the NJCFA includes: [t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, 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 mislead, deceived or damaged thereby. N.J. Stat. Ann. § 56:8-2. The NJCFA recognizes three general categories of unlawful conduct: (1) affirmative acts, i.e., misrepresentations; (2) omissions; and (3) regulatory violations. See Solo v. Bed Bath & Beyond, Inc., 2007 WL 1237825, at *2 (D.N.J. Apr.26, 2007); Cox v. Sears Roebuck & Co., 138 N.J. 2, 17, 647 A.2d 454 (1994). The common denominator underlying all types of unlawful Arcand v. Brother Intern. Corp., 673 F. Supp. 2d 282, 296 (D.N.J. 2009) (quoting Cox, 138 N.J. at 17). Significantly, the unlawful conduct must be made Arcand, 673 F. Supp .2d at 296-97 (quoting Castro v. NYT Television, 370 N.J. Super. 282, 294 (App. Div. 2004)). -fraud violation consists of an affirmative act, intent is not an essential element and the plaintiff need not prove that the defendant intended to commit an Cox, 138 N.J. at 17; accord Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 556 (2009) (intent is not an element of proof for affirmative acts because the law imposes strict liability for NJCFA violations). omission, the plaintiff must show that the defendant acted with knowledge, and intent is an essen Cox, 138 N.J. at 18. 11 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 12 of 19 PageID: 385 the underlying duty on the part of the defendant to disclose what he concealed to induce the Arcand, 673 F. Supp. 2d at 297. A plaintiff need not establish reliance for NJCFA Union Ink Co. v. AT & T Wireless, 352 N.J. Super. 617 (App. Div. 2002). In this case, Port Imperial specifically alleges that A.O. Smith committed the following affirmative acts in support of its NJCFA claim: (1) Field of the Water Heaters, and misrepresented during those calls that the Water Heaters would be 8 ¶ 16; (2) t make express misrepresentations about the quality and durability of their products, stating in . . . . So, when you choose an A.O. Smith water heater, . . . you can be confident that you are getting the best water heating solution regardless of the application for today and for years to come id. - duty industrial-grade water heaters are designed and built to handle the most demanding hot water Id. ¶ 18. Initially, the Court observes that [t]he NJCFA distinguishes between actionable In re Toshiba Am. HD DVD Marketing and Sales Practices Lit., Civ. No. 08-939 (DRD), 2009 WL 2940081, at * 9 (D.N.J. Sept. 11, 2009) (citing Rodio v. Smith, 123 N.J. 345, 352 (1991)). ry is an exaggeration or overstatement expressed Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 945 12 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 13 of 19 PageID: 386 (3d Cir. -defined opinions are not as CPS , 940 F. Supp. 2d 141, 159 (D.N.J. 2013) (citation omitted); accord Kuzian v. Electrolux Home Products, Inc., 937 F. Supp. 2d. 599, 615 Castrol, 987 F.2d at 945. . New Jersey Citizen Action, 367 N.J. Super. at 14. Here, the Court finds that the marketing statements Port Imperial identified within A.O. i.e. the best water heating solution . . . for today and for years to come - duty industrial-grade water heaters are designed and built to handle the most demanding hot water heating requirements of large commercial and industrial users, are mere puffery which is not actionable under the NJCFA. See Argabright v. Rheem Mfg. Co., 201 F. Supp. 3d 578 (D.N.J. - Peruto v. TimberTech Ltd., 126 F. Supp. 3d 447, 451-52, 458 (D.N.J. 2015) (marketing statements that decking product was, inter alia constituted puffery); In re Toshiba Am., 2009 WL 2940081, at *10 (D.N.J. Sept. 11, 2009) (finding marketing statement Today, Tomorrow and B to be non-actionable puffery);. 13 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 14 of 19 PageID: 387 [Port misrepresented during those calls that the Water Heaters would be durable and suitable for the out the what, where, and when of those conversations to satisfy See, e.g., Torres Hernandez v. CVT Prepaid Solutions, Civil Action No. 3:08-cv-1057-FLW, 2008 WL 5381227, at *6 (D.N.J. Dec. 17, 2008) (finding that the defendant s alleged fraudulent misrepresentations claim); Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, 526 (D.N.J. 2008) (dismissing misrepres s website and in the 2002 Passat owner s manual, the [p]laintiffs do not allege when the statements were made or at what point-if ever-each [p]laintiff was exposed to one or . purportedly actionable omissions, Port Imperial alleges the following, all upon information and belief: (1) -200-1250 Water Heaters were discontinued due to repeated complaints related to the p 8¶ A.O. Smith knew, or should have known that, the tanks for the model water heaters purchased by [Port Imperial] were experiencing premature failures and leaks that could potentially result in a total loss of the heating systems, and deliberately and/or negligently failed to disclose these conditions prior to selling the Water Heaters, id. ¶ 41; and (3) .O. Smith received many complaints from other customers, complaining that the same model water heaters . . . were defective and experiencing premature failures Id. 12 ¶ 42. 14 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 15 of 19 PageID: 388 The Court finds that there likewise is insufficient detail pled about the what, where, and . See, e.g., Glauberzon v. Pella Corp., 2011 WL 1337509, at *9 (D.N.J. Apr.7, 2011) (finding that NJCFA-rooted allegations of omissions did not meet Rule 9(b) pleading standard where [did] not identify who at Pella was aware of the . . . defect, when or how they learned of such see also Torres-Hernandez v. CVT Prepaid Solutions, Inc., Civil Action No. 3:08-cv-1057 (FLW), 2008 WL 5381227, at *6 (D.N.J. Dec. 17, 2008) (finding that plaintiffs alleged only general allegations of concealment in terms of defendant s marketing materials, and thus, the failure to NJCFA claim). amended complaint; said dismissal is without prejudice. E. Intentional Misrepresentation, i.e., Common Law Fraud (Count VIII) In Count VIII, Port Imperial alleges a claim for intentional misrepresentation, i.e., common law fraud, based on the same intentional misrepresentations and omissions detailed above. See D.E. 8 ¶ 138. of an undue advantage by means of some act or omission that is unconscientious or a violation of Jewish Ctr. of Sussex Cty. v. Whale, 86 N.J. 619, 432 A.2d 521, 524 (1981). To prove fraudulent concealment or misrepresentation under New Jersey law, a plaintiff must establish five elements: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages. Gennari v. Weichert Co. Realtors, 148 N.J. 582, 691 A.2d 350, 367 (1997). The elements of Port Imp 15 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 16 of 19 PageID: 389 misrepresentation claim must be pled under the heightened standards of Rule 9(b). Arcand, 673 F. Supp. 2d at 305. Furthermore, misrepresentation. See Rodio v. Smith, deemed to be a misrepresentation of fact actionable for fraud). The Court finds that Count VIII must be dismissed under the foregoing standards. First, as discussed above, the marketing statements Port I brochures and specification materials are mere puffery that is not actionable. Second, with respect to engineers at WSP regarding the specifications of the Water Heaters misrepresentations during those discussions, the Court reiterates that there is insufficient detail s heightened pleading standard. Furthermore, a claim for fraudulent concealment based on either an affirmative misrepresentation or an omission requires showing that defendant had actual knowledge of the falsity of a fact, or knowledge of the omitted fact. Here, Port Imperial has not pleaded with sufficient particularity that A.O Smith knew about the alleged defect in its Water Heaters when Port Imperial purchased them. The amended complaint makes only vague allusions to A.O. numerous complaints about the specific Water Heater model it sold to Port Imperial and asserts that this model was eventually taken off the market in support of its ultimate claim that A.O. Smith knew the Water Heaters were defective at the time of sale. Port Imperial therefore fails to inject the requisite specificity needed for its fraud claim to survive Rule 12(b)(6) dismissal 16 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 17 of 19 PageID: 390 dates on which A.O. Smith affirmatively learned of the inherently defective nature of its BTP-2001250 water heaters and/or discontinued its sale of that model. contains no facts that adequately demonstrate that A.O. Smith was aware of the model-wide issue prior to selling the Water Heaters to Port Imperial in or around August 8, 2016, and thus, it fails to plausibly allege that A.O. Smith knowingly misrepresented or suppressed a material fact about the quality and longevity of its product to Port Imperial at the time of sale. See Argabright, 201 F. Supp. 3d at 602 fraudulent concealment claim for substantially the same reasons). For these reasons, the Court will dismiss III), without prejudice. F. Negligent Misrepresentation (Count VII) Karu v. Feldman, 119 N.J. 135, 146 (1990). To prevail on a negligent misrepresentation claim, a plaintiff must prove that the defendant negligently made an incorrect statement, upon which the plaintiff justifiably relied. Green v. Morgan Properties, 215 N.J. 431, 457 (2013); H. Rosenblum, Inc. v. Adler, 93 N.J. 324, 334 (1983). A plaintiff must further allege that the defendant owed him a duty of care. See Smith v. Citimortgage, Inc., No. CV 15-7629 (JLL), 2015 WL 12734793, at *7 (D.N.J. Dec. 22, 2015) (citing Kronfeld v. First Jersey Nat. Bank, 638 F. Supp. 1454, 1465 (D.N.J. 1986)). A negligent misrepresentation claim may also be based on an omission where plaintiff adequately pleads a duty to disclose. S. Broward Hosp. Dist. v. MedQuist Inc., 516 F. Supp. 2d 370, 397 (D.N.J.), , 258 Fed. App x 466 (3d Cir. 2007). The Court finds that Count VII must be dismissed under this pleading standard. First, as noted, s -defined opinions are not 17 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 18 of 19 PageID: 391 as CPS MedManagement LLC v. , 940 F. Supp. 2d 141, 159 (D.N.J. 2013) (citation omitted). The marketing statements Port Imperial identified within A.O. specification materials accordingly fail to support this claim. Furthermore, Port Imperial has failed to present any facts which suggest that A.O. Smith relationship. Port thus fails to adequately state a claim for negligent misrepresentation. The Court will accordingly dismiss this count, also without prejudice. Smith, 2015 WL 12734793, at *7 (dismissing negligent misrepresentation c Plaintiffs have alleged no independent duty of care separate and apart from the alleged contractual relationship . G. Port Imperial is Granted Leave to Amend Dismissal of Counts I, II, VI, VII, and VIII is without prejudice, and Port Imperial will be afforded the opportunity to amend its complaint to address the pleading deficiencies identified herein. Fed. R. Civ. P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182 (1962). There has been no prior dismissal decision rendered in this matter and A.O. Smith has not demonstrated that it would be prejudicial, futile, or otherwise unfair for Port Imperial to be given leave to amend. It is consistent with principles of fairness and justice to afford Port Imperial an opportunity to do so. Port Imperial may file an amended complaint within 30 days of the date of this Opinion. 18 Case 2:22-cv-01687-EP-JSA Document 45 Filed 12/08/22 Page 19 of 19 PageID: 392 IV. CONCLUSION For the reasons above, motion is GRANTED in part (as to Counts I, II, VI, VII, and VIII) and DENIED in part (as to Count IX). Dated: December 8, 2022 __________________ Evelyn Padin, U.S.D.J. 19

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