The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs Necdet and Lisa Aktas bring this action against defendants JMC Development Co., Inc., Joseph M. Cantanucci, Jr., Granville Glass and Granite, Inc., Granville Glass and Granite of Hudson Falls, Inc., Stephen M. Jung, James P. Lynch, P.E., PLLC, Scott Hamilton, Brady's Wood Floors LLC, and Warren County, alleging various claims of breach of contract, breach of warranty, negligence, and fraud. (Compl., Dkt. No. 1.) Pending are JMC and Cantanucci's motion to dismiss, Warren County's motion to dismiss, and the Aktases' motion to amend. (Dkt. Nos. 8, 12, 21.) For the reasons that follow, JMC and Cantanucci's motion is denied, Warren County's motion is granted, and the Aktases' motion to amend is granted in part and denied in part.
Plaintiffs Necdet and Lisa Aktas, residents of Saddle River, New Jersey, are owners of a house located at 223 Mill Creek Road, Adirondack, Warren County, New York. (See Compl. ¶¶ 1, 16, Dkt. No. 1.) In October 2008, the Aktases entered into a contract with defendant JMC to renovate and make additions to the house. (See id. at ¶ 17.) JMC's places of business are Troy and Schroon Lake, New York, and defendant Joseph M. Cantanucci, Jr. is the sole owner, shareholder, director, and officer of JMC. (See id. at ¶ 4.) The contract was to be performed pursuant to the plans, construction documents, and specifications issued by defendant Stephen M. Jung of Jung Architecture, which is organized and exists under New York State law. (See id. at ¶ 19.) Upon Jung's recommendation, JMC retained defendant James P. Lynch, P.E., PLLC of Clifton Park, New York, to provide structural analysis of the renovations and additions. (See id. at ¶ 20.) In addition, defendant Granville Glass of Hudson Falls, New York, was hired as a subcontractor to provide and install marble and granite in the house; defendant Scott Hamilton of Clifton Park, New York, was subcontracted to provide and install bathroom and kitchen fixtures; and defendant Brady's Wood Floors LLC of Clifton Park, New York, was subcontracted to sand and finish the house's wood floors. (See id. at ¶¶ 21-24.)
According to the Aktases, due to irreconcilable difficulties arising during 2009, their relationship with JMC and the several subcontractors broke down. (See id. at ¶ 25.) In response, the Aktases hired Atelier Consulting, LLC, an owner's representative company, which retained the services of an engineer and architect to review the work done on the house. (See id.) As alleged by the Aktases, Atelier's review revealed various unprofessional and unreasonable failures including: "grossly deficient" architectural plans that resulted in imperfections, errors, and deficiencies affecting the structural soundness of the work; omissions by Jung in supervising and correcting the work; "grossly deficient" structural calculations by the engineer that resulted in inaccurate and inadequate structural framing; and grossly improper installations of the electrical, plumbing, heating, ventilation, and air conditioning systems, that were subsequently covered up by JMC and its subcontractors. (See id. at ¶ 26.) Furthermore, the Aktases allege that JMC and its subcontractors caused extensive structural damage and defects to the house, which are outlined in detail in the complaint. (See id.)
Thereafter, the Aktases filed a New York Freedom of Information Law request and learned that Warren County, while performing inspections of the project during 2009, discovered substantial structural problems and demanded that JMC and the subcontractors make the appropriate changes and corrections. (See id. at ¶ 27.) However, despite JMC and the subcontractors' failure to remedy the problems, Warren County never issued a violation or work stoppage order, and never notified the Aktases about the problematic conditions. (See id.) According to the Aktases, JMC, Jung, and Lynch were aware of the inspection results and the consequent demands, but never notified the Aktases about the actual results or made the requisite corrections. (See id. at ¶ 28.) Rather, the Aktases allege that JMC and Cantanucci merely notified them that the inspections occurred, and that in doing so, left them with the false impression that the inspections were successful and that the work was proceeding according to plan. (See id. at ¶ 29.) And in the Aktases' words, "JMC intentionally and fraudulent[ly] misrepresented the progress of the project in order to extract further payments from [the Aktases]." (Id. at ¶ 30.) The Aktases further allege that during this time, Jung continued to certify that the work was being completed properly. (See id. at ¶ 31.)
On September 4, 2009, the Aktases notified JMC in writing that they were terminating the contract. (See id. at ¶ 32.)
On November 5, 2009, the Aktases filed an action in the United States District Court for the Southern District of New York, which was dismissed for improper venue on December 22, 2009. (See Pl. Resp. Mem. of Law at 4, Dkt. No. 21:2.) On November 24, 2009, JMC filed a mechanic's lien with the Warren County Clerk against the 223 Mill Creek Road property. (See id.) The Aktases commenced the present action in the United States District Court for the Northern District of New York on December 24, 2009. (See Compl., Dkt. No. 1.) Then, on January 13, 2010, JMC filed an action against the Aktases in New York State Supreme Court, Warren County, seeking foreclosure of the mechanic's lien and asserting claims for breach of contract and unjust enrichment. (See JMC Mem. of Law at 3, Dkt. No. 8:3.) JMC subsequently moved this court to abstain from hearing this action based on the concurrent state proceeding, or alternatively, to dismiss the Aktases' fraud claim and their claim against Cantanucci. (See Dkt. No. 8.) Warren County filed a motion to dismiss for failure to state a cause of action against it. (See Dkt. No. 12.) In response, the Aktases opposed both motions and sought the court's permission to amend the complaint. (See Dkt. No. 21.)
Generally, in situations involving the contemporaneous exercise of concurrent jurisdiction by a federal and a state court, "the rule is that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the [f]ederal court having jurisdiction." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (internal quotation marks and citations omitted); see also Burnett v. Physician's Online, Inc., 99 F.3d 72, 76 (2d Cir. 1996) ("[F]ederal courts have a virtually unflagging obligation to exercise their jurisdiction." (internal quotation marks and citation omitted)). Accordingly, "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River, 424 U.S. at 813. Thus, a district court's decision to postpone or decline the exercise of jurisdiction "is an extraordinary and narrow exception to [its] duty... to adjudicate a controversy properly before it," and such a decision can only be justified under "exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959).
In deciding whether abstention is appropriate, the district court must first determine whether the concurrent proceedings are actually "parallel." See Dittmer v. County ...