The opinion of the court was delivered by: John G. Koeltl, District Judge:
The plaintiff, Reparata Mazzola (the "plaintiff"), brings this putative class action against Roomster Corporation ("Roomster"), and its founders and principal owners, John S. Shriber and Roman Zaks (collectively, the "defendants"). The plaintiff asserts claims for breach of contract, fraud, negligent misrepresentation, conversion, and violation of the California Consumer Legal Remedies Act, Cal. Civ. Code § 1770 et seq., and Cal. Bus. & Prof. Code §§ 17200 et seq. and 17500 et seq. The defendants now move to dismiss the Second Amended Class Action Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In the alternative, the defendants move to strike the class allegations in the Complaint pursuant to Federal Rules of Civil Procedure 12(f) and 23(d)(1)(D).
On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in favor of the plaintiff. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Velez v. Levy, 401 F.3d 75, 80 (2d Cir. 2005) (internal quotation marks and citation omitted). The Court should not dismiss the Complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
"A 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, 129 S. Ct. 1937, 1949 (2009). While detailed factual allegations are not required, the pleading must include more than an "unadorned, the-defendant-unlawfully-harmed-me accusation," "'labels and conclusions,'" "'a formulaic recitation of the elements of a cause of action,'" or "'naked assertion[s].'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 555, 557). Accordingly, the basic principle that a court must accept all allegations as true is inapplicable to either legal conclusions or "mere conclusory statements." Id. A court can thus begin its analysis of the sufficiency of pleadings "by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. "When 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." Id.
A claim that sounds in fraud must meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b). See Litwin v. Blackstone Grp., L.P., 634 F.3d 706, 715 (2d Cir. 2011); Campbell v. Mark Hotel Sponsor, LLC, No. 09 Civ. 9644, 2010 WL 3466020, at *4 (S.D.N.Y. Sept. 3, 2010). Rule 9(b) requires that the complaint "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir. 2007).
When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); SEC v. Rorech, 673 F.Supp.2d 217, 221 (S.D.N.Y. 2009).
The following assertions of fact are assumed to be true on this motion to dismiss.
Roomster Corporation owns and operates Roomster.com, an online roommate matching service whose principals are John S. Shriber and Roman Zaks. (Second Am. Class Action Compl. ("Second Am. Compl."), at ¶¶ 5-8.) Roomster.com allows members to connect to each other to find roommates or rent apartments in a safe online environment. (Second Am. Compl. ¶ 14.)
Once a user becomes a member, the user chooses between a Basic Membership and a Full Membership. (Second Am. Compl. ¶
On September 28, 2009, the plaintiff became a member of Roomster.com. (Shriber Decl. Ex. C.) The plaintiff selected a Full Membership for three days, provided her credit card and billing information, and was charged $5.95. (Second Am. Compl.
The plaintiff brought this action asserting claims for breach of contract, fraud, negligent misrepresentation, conversion, and violation of the California Consumer Legal Remedies Act, Cal. Civ. Code § 1770 et seq., and Cal. Bus. & Prof. Code §§ 17200 et seq. and 17500 et seq. The plaintiff's claims are based on her allegation that the defendants failed to disclose adequately the automatic renewal billing procedure and prevented her from canceling her Roomster membership.
This action was brought in the Central District of California and transferred to this Court pursuant to 28 U.S.C. § 1404(a).*fn1
The defendants move to dismiss the plaintiff's First, Second, Third, Fifth, and Sixth Claims for Relief, namely the plaintiff's breach of contract, fraud, and negligent misrepresentation claims, and her claims under the California Consumer Legal Remedies Act, Cal. Civ. Code § 1770 et seq., and Cal. Bus. & Prof. Code §§ 17200 et seq. and 17500 et seq. The defendants claim that the ...