United States District Court, D. New Jersey
JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Motion of Defendant American
Pulverizer and Hustler Conveyor Company
(“Defendants”) to Dismiss [Dkt. No. 13] Counts I,
II, V, and VI of the Complaint and to Strike Plaintiff's
claim for Punitive Damages and on Defendant Pinnacle
Engineering Inc.'s (“Pinnacle”) Motion to
Dismiss for failure to provide an Affidavit of Merit [Dkt.
No. 44]. The Court has considered the written submissions of
the parties and the arguments advanced at the hearing on
November 7, 2016, which relate to Pulverizer's motion.
For the reasons stated on the record that day and those that
follow, Defendant Pulverizer's motion is granted in part
and Defendant Pinnacle's motion is denied.
relevant terms, the Complaint alleges that Plaintiffs
purchased a machine from Defendants for the intended use of
shredding and sorting automobile parts. By all accounts the
“shredder” is a massive machine that dismantles
old cars and sorts the various scrap metals. Shortly after
installation of the machine, it malfunctioned and a fire
ensued. Compl. ¶¶ 63, 64, 69. The fire disabled the
machine and Plaintiffs allege, inter alia, loss of
profitability, revenue, and other assets. Id. at
¶ 77. The Counts relevant to this motion are as follows:
Count I Strict Liability, Count II Negligence, Count V Breach
of Implied Merchantability, and Count VI Fraudulent
Concealment. The Complaint also seeks Punitive Damages.
Defendants move to dismiss pursuant to Fed.R.Civ.P. 12 (b)
moves to dismiss on the ground that Plaintiffs failed to
supply an Affidavit of Merit as required by N.J.S.A.
§2A-53A-2. Plaintiffs' claims against Pinnacle
relate to Pinnacle's sale of defective equipment and/or
products and Pinnacle's negligent assistance in the
installation of the equipment. Pinnacle argues that
Plaintiffs' assertion of claims of negligence and design
and manufacturing defects, and breach of services rendered by
licensed engineering professionals implicates the Affidavit
of Merit Rule. In other words, because Plaintiffs allege that
Pinnacle deviated from the acceptable standard of care,
Pinnacle asserts that the submission of an Affidavit of Merit
is required before Plaintiffs can proceed with their claims.
Plaintiffs have not submitted an Affidavit of Merit in
support if the claims against Pinnacle. The Court will
address the issues in turn.
Standard of Review- Motion to Dismiss
Rule of Civil Procedure 12(b)(6) allows a party to move for
dismissal of a claim based on “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A complaint should be dismissed pursuant to Rule
12(b)(6) if the alleged facts, taken as true, fail to state a
claim. Fed.R.Civ.P. 12(b)(6). When deciding a motion to
dismiss pursuant to Rule 12(b)(6), ordinarily only the
allegations in the complaint, matters of public record,
orders, and exhibits attached to the complaint, are taken
into consideration. See U.S. Express Lines, Ltd.,
281 F.3d at 388; Chester County Intermediate Unit v. Pa.
Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). It is not
necessary for the plaintiff to plead evidence. Bogosian
v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The
question before the Court is not whether the plaintiff will
ultimately prevail. Watson v. Abington Twp., 478
F.3d 144, 150 (2007). Instead, the Court simply asks whether
the plaintiff has articulated “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556).
“Where there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
Court need not accept “‘unsupported conclusions
and unwarranted inferences, '” Baraka v.
McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation
omitted), however, and “[l]egal conclusions made in the
guise of factual allegations . . . are given no presumption
of truthfulness.” Wyeth v. Ranbaxy Labs.,
Ltd., 448 F.Supp.2d 607, 609 (D.N.J. 2006) (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986));
see also Kanter v. Barella, 489 F.3d 170, 177 (3d
Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347,
351 (3d Cir. 2005) (“[A] court need not credit either
‘bald assertions' or ‘legal conclusions'
in a complaint when deciding a motion to dismiss.”)).
Accord Iqbal, 556 U.S. at 678-80 (finding that
pleadings that are no more than conclusions are not entitled
to the assumption of truth).
although “detailed factual allegations” are not
necessary, “a plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not
do.” Twombly, 550 U.S. at 555 (internal
citations omitted). See also Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
motion to dismiss should be granted unless the
plaintiff's factual allegations are “enough to
raise a right to relief above the speculative level on the
assumption that all of the complaint's allegations are
true (even if doubtful in fact).” Twombly, 550
U.S. at 556 (internal citations omitted). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘shown'-‘that the
pleader is entitled to relief.'” Iqbal,
556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
“if a complaint is subject to a Rule 12(b)(6)
dismissal, a district court must permit a curative amendment
unless such an amendment would be inequitable or
futile.” Great Western Mining & Mineral Co. v.
Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010)
(internal citation and quotation omitted; emphasis added).
preliminary matter, in briefing and during oral argument,
Plaintiffs concede the dismissal of the claim for punitive
damages and the Court will dismiss the claim with
the majority of the Complaint, Plaintiffs' claim of
fraudulent concealment is drafted in general terms, without
identifying the specific parties at issue: there are six
Plaintiffs and six Defendants named in the Complaint. The
Complaint is replete with general references to
“Plaintiffs” and “Defendants” without
any information as to the nature of the relationship between
and or among the parties and/or attribution of the alleged
conduct or inaction. This fact alone implicates
Twombly's mandate, which requries that, in the
absence of detail, a ...