United States District Court, D. New Jersey
For STOCKROOM, INC., Plaintiff: VINCENT SAVINO VERDIRAMO, VERDIRAMO & VERDIRAMO, JERSEY CITY, NJ.
For PLUG & PLAY TECHNOLOGIES, INC., Defendant: David Allen Ward, LEAD ATTORNEY, KLUGER HEALEY, LLC, RED BANK, NJ.
For DYDACOMP DEVELOPMENT CORP., Defendant: DAVID J. SHANNON, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, CHERRY HILL, NJ.
William H. Walls, Senior United States District Judge.
This case concerns a credit card processing system that allegedly failed to process certain transactions. Defendant
Dydacomp Development Corporation (" Dydacomp" ) moves to dismiss Plaintiff Stockroom, Inc.'s (" Stockroom" ) second amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Court decides the motion without oral argument under Federal Rule of Civil Procedure 78(b). Dydacomp's motion is granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case have been fully set forth in the Court's previous opinion dismissing Stockroom's claims without prejudice. ECF No. 30. In brief, Plaintiff Stockroom is a retailer of adult-themed products and clothing. Second Am. Compl. ¶ 7. Defendant Dydacomp is a software company that sells an order processing system for online merchants called Multichannel Order Manager (" MOM" ). Id. ¶ ¶ 1, 8. In 1999, Stockroom began to use the MOM system to process retail transactions at its physical and online stores. Id. ¶ 9. Defendant Plug & Pay Technologies, Inc. (" Plug & Pay" ) processes credit card transactions for online merchants in conjunction with the MOM system. Stockroom started using Plug & Pay in 2004. Id. ¶ ¶ 1, 10-12. In 2010, upon closing one of its stores, Stockroom discovered problematic credit card transactions where money was not deposited in its bank account and customer refunds were issued in error. Id. ¶ ¶ 1, 18-21, 39. Stockroom alleges that Defendants Dydacomp and Plug & Pay are responsible for the problem and about 3% of credit card transactions were affected. Id. ¶ ¶ 1, 21.
Stockroom's first amended complaint alleged seven claims: (1) breach of contract against Dydacomp; (2) breach of contract against Plug & Pay; (3) breach of covenant of good faith and fair dealing against both Defendants; (4) violation of the New Jersey Consumer Fraud Act (" NJCFA" ) against both Defendants; (5) breach of express warranty against both Defendants; (6) breach of implied warranty of merchantability against both Defendants; (7) breach of warranty of fitness for a particular purposes against both Defendants. First Am. Compl. ¶ ¶ 29-75. The Court dismissed all the claims without prejudice. The claims based on breach of contract and breach of warranty were held to be time-barred under N.J. Stat. Ann. § 12A:2-725. Opinion at 8 (ECF No. 30). The Court instructed Stockroom that more detailed allegations of fraudulent concealment would be necessary for equitable tolling to apply. Id. at 9. Stockroom also failed to plead its NJCFA claim with sufficient particularity. Id. at 11-13. Stockroom was permitted to re-file to address these deficiencies and to add another claim of common law fraud. Id. at 12-13. 
Stockroom filed a second amended complaint on October 1, 2012. ECF No. 32. Dydacomp moves to dismiss again, arguing that Stockroom still fails to plead sufficient facts for fraudulent concealment and fraud.
STANDARD OF REVIEW
When deciding a 12(b)(6) motion to dismiss, the Court accepts as true all facts alleged in the complaint and construes the complaint in the light most favorable to the plaintiff. Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (citations
omitted). Legal conclusions asserted in the complaint are disregarded. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The Court should determine whether the facts alleged are sufficient to show that the plaintiff has " 'a plausible claim for relief.'" Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). " This 'plausibility' determination will be a 'context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. (quoting Iqbal, 556 U.S. at 679). After the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), " ...