The opinion of the court was delivered by: Hillman, District Judge
This matter comes before the Court on defendant's motion to dismiss plaintiffs' Third Amended Complaint. For the reasons expressed below, defendant's motion will be granted.
This is the second motion of defendant, The Coca-Cola Company, to dismiss the putative class action complaint of plaintiffs, Thomas Mason and Molly E. Adams, who had originally alleged counts for violation of the New Jersey Consumer Fraud Act ("NJCFA"), N.J.S.A. 56:8-1, et seq., negligent misrepresentation, intentional misrepresentation, and unjust enrichment against defendant. Upon defendant's first motion to dismiss plaintiffs' complaint, this Court dismissed plaintiffs' unjust enrichment claim with prejudice and granted plaintiffs' request for leave to amend their other claims.
Following the Court's Order, plaintiffs filed their Third Amended Complaint, re-alleging claims for NJCFA violations, negligent misrepresentation, and intentional misrepresentation. These claims are all premised on plaintiffs' allegations that defendant "promoted, advertised and marketed" its product "Diet Coke Plus," using a misleading label that violated Federal Food & Drug Administration ("FDA") rules and regulations. (Third Amended Complaint ¶ 11.) Specifically, plaintiffs allege that they "were persuaded to purchase the product because the term 'Plus' and the language 'Diet Coke with Vitamins and Minerals' suggested to consumers that the product was healthy and contained nutritional value," when it did not. (Id. ¶¶ 18, 20.) Defendant again has moved to dismiss plaintiffs' Third Amended Complaint for their failure to state a viable claim.*fn1
This Court has original jurisdiction over this action under 28 U.S.C. §§ 1332(d)(2), (5), and (6), which provides such jurisdiction over class actions in which the amount in controversy exceeds $5,000,000, exclusive of interest or costs, the proposed class includes at least 100 members, and any member of the alleged plaintiff class is a citizen of a State different from any defendant.
On its face, plaintiffs' complaint satisfies § 1332(d). Plaintiffs allege that the proposed class has more than 100 members. Plaintiffs are citizens of the State of New Jersey. Defendant is a Delaware corporation with its principal place of business in Atlanta, Georgia. The amount in controversy is in excess of $5,000,000.
B. Standard for Motion to Dismiss
When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give defendant fair notice of what the Plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks "'not whether a Plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atlantic v. Twombly, 550 U.S. 544, 562 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ."); Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element"). A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). The defendant bears the burden of showing that no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
Further, claims alleging fraud or mistake must meet the heightened pleading requirements of Fed. R. Civ. P. 9(b), which requires such claims to be pled with "particularity." See Naporano Iron & Metal Co. v. Am. Crane Corp., 79 F. Supp. 2d 494, 510 (D.N.J. 2000). A plaintiff must allege the "who, what, when, where, and how" of the claim. Lum v. Bank of Am., 361 F.3d 217, 224 (3d Cir. 2004). A plaintiff "may satisfy this requirement by pleading the 'date, place or time' of the fraud, or through 'alternative means of injecting precision and some measure of substantiation into their allegations of fraud.'" Id. (quoting Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984)). The Rule's heightened pleading requirements "give defendants notice of the claims against them, provides an increased measure of protection for their reputations, and reduces the number of frivolous suits brought solely to extract settlements." Naporano Iron & Metal Co. v. ...