The opinion of the court was delivered by: Siragusa, J.
This case is before the Court on CIBA Vision Corporation's ("CIBA") motion (Docket No. 6) to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6) on the grounds that the Court lacks subject matter jurisdiction, and that the complaint fails to state a cause of action upon which relief can be granted. In the alternative, CIBA seeks an order transferring this action to the Eastern District of Texas pursuant to 28 U.S.C. § 1404(a). For the reasons stated below, the Court determines that the complaint meets the jurisdictional threshold of $75,000, that it states causes of action sufficiently to avoid dismissal, and that the alternative relief is not warranted. Further, the Court grants Bausch & Lomb's letter request to extend the time for filing a response to CIBA's motion for summary judgment.
For the purpose of adjudicating the pending motion to dismiss, the Court assumes all the allegations in the complaint are true and views them in the light most favorable to Bausch & Lomb, the non-moving party. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989). Because the parties have signed a non-disclosure agreement, this factual background will be sparse in detail. Bausch & Lomb alleges that CIBA has breached a contract between them by failing to comply with one of its terms, and as a result, Bausch & Lomb is seeking specific performance of the contract as well as damages alleged to be in excess of $75,000.
Jurisdiction is based on 28 U.S.C. § 1332, which states in pertinent part as follows: "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000., and is between-(1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state.." 28 U.S.C. § 1332(a)(1)*fn1 and (2) (2005). Since there is no controversy over diversity, the Court's analysis is controlled by the U.S. Supreme Court's "legal certainty" test:
The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938) (footnotes omitted).
The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955 (May 21, 2007), clarified the standard to be applied to a 12(b)(6) motion:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143, 2007 W L 1717803 (2d Cir. Jun. 14, 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.) W hen applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, "[c]onclusory allegations of the legal ...