The opinion of the court was delivered by: Korman, J.:
On May 5, 2011, Robin Prue and John Prue (collectively, the "plaintiffs") filed a summons, complaint, and jury trial demand against Fiber Composites, LLC n/k/a Fiberon, LLC ("Fiber Composites") in the Supreme Court of the State of New York, Richmond County. [Summons & Verif. Compl., attached as Ex. A to Pollack Affirm.] The summons and complaint were served upon Fiber Composites on June 14, 2011. [DE 1 at 1; Def.'s Mem. of Law 2-3.] No explanation is provided for this delay.
In their complaint, the plaintiffs allege that Fiber Composites manufactured decking materials that were used to construct a deck at the plaintiffs' residence in Staten Island, New York. [Verif. Compl. ¶¶ 11-12.] According to the plaintiffs, these decking materials were known as "FIBERON 5/4x6x16 REDWOOD, 2x8x12 MCA EACH, 2x10x16 EACH, FIBERON 5/4X6X20 REDWOOD, GAL 10 STICK NAIL 2.5, 248 FIB REDWOOD." [Verif. Compl. ¶ 11.] The plaintiffs claim that Fiber Composites (1) inspected the subject decking materials while they were in its exclusive control, (2) was a sales representative and/or agent of the decking materials, (3) was the distributor of the decking materials, (4) sold the decking materials, (5) distributed the decking materials into the stream of commerce, (6) sold the decking materials into the stream of commerce, (7) put the decking materials into the "chain of commerce," (8) was in the business of manufacturing and selling the decking materials, and (9) provides (and provided) services in New York to remedy the plaintiffs for the defective decking materials. [Verif. Compl. ¶¶ 13-22.]
In support of their first cause of action, which is for negligence, the plaintiffs aver that Fiber Composites "negligently manufactured and designed" the subject decking materials and that, as a result, these materials were "defective and unfit for [their] intended ordinary use." [Verif. Compl. ¶¶ 23-24.] The plaintiffs state that, on or around May 7, 2007, Fiber Composites, its agents, servants and/or employees "sold and/or distributed" the decking materials to the plaintiffs. [Verif. Compl. ¶ 25.] The plaintiffs also say that Fiber Composites was provided with notice that the decking materials were defective and nonconforming. [Verif. Compl. ¶ 26.] And on or around May 7, 2007, "and for a period of time prior thereto," the plaintiffs say, "the aforementioned deck comprised [of] the DECKING MATERIALS was in a defective and unsafe condition and not fit for the purpose intended." [Verif. Compl. ¶ 27.] As a result, the plaintiffs say that they have sustained "severe economic losses" and that these "economic injuries were due directly to the carelessness, recklessness and negligence of the defendant, its agents, servants and/or employees in the manufacture and distribution of defective DECKING MATERIALS." [Verif. Compl. ¶ 29.]
In support of their second cause of action-which Fiber Composites interpreted as being for negligent misrepresentation [Def.'s Mem. of Law 8-12] but which the plaintiffs say, in their opposition memorandum, is for misrepresentation, deceptive practices, and false advertising in violation of New York General Business Law §§ 349 and 350 [Pls.' Mem. of Law 9-10]-the plaintiffs assert that Fiber Composites "advertised the DECKING MATERIALS on its website to market and sell for profit" and "misrepresented the quality and durability of the DECKING MATERIALS on its website." [Verif. Compl. ¶¶ 32-33.] The plaintiffs further contend that Fiber Composites "induced the plaintiffs to rely on its misrepresentation and false statements on its website as to the quality, character and durability of the DECKING MATERIALS" and "intentionally mislead [sic] the plaintiffs as to the quality, character and durability of the DECKING MATERIALS." [Verif. Compl. ¶¶ 35-36.] The plaintiffs claim that, as a result, they have sustained "severe economic losses" and that these "economic injures were due directly to the carelessness, recklessness and negligence of the defendant, its agents, servants and/or employees in causing . . . the plaintiffs to rely on misleading advertisement(s) of the aforementioned DECKING MATERIALS." [Verif. Compl. ¶¶ 37-38.] In terms of what law applies, the plaintiffs assert that Fiber Composites' "unlawful false advertisements" of the decking materials were subject to "the laws and rules of the 'New York General Business.'" [Verif. Compl. ¶ 34.]
In support of their third cause of action, for breach of express and implied warranties, the plaintiffs allege that Fiber Composites, its agents, servants, and/or employees, "in connection with the design, manufacture, assembly, sale, and distribution of the said DECKING MATERIALS herein expressly warranted and represented the same to be reasonably safe and fit for the use for which it was intended, of merchantable quality, and free from defects." [Verif. Compl. ¶ 41.] As to what law applies, the plaintiffs claim that "the purchase and sale of the aforementioned DECKING MATERIALS were subject to the laws and rules of the 'New York Uniform Commercial Code'" and that these decking materials were subject to the Magnuson-Moss Warranty Act. [Verif. Compl. ¶¶ 42-43.]
With respect to their breach of express warranty claim, the plaintiffs state that Fiber Composites expressed a "warranty of merchantability" for the decking materials "by making assertions of fact relating to the quality, character and durability of the goods" and "by making assertions of fact relating to the DECKING MATERIALS that was a basis of the bargain for plaintiff[s] entering into the transaction." [Verif. Compl. ¶¶ 44-45.] The plaintiffs go on to say that this express warranty of merchantability was "false and misleading," that Fiber Composites "described the DECKING MATERIALS in a false manner and in fact caused the plaintiffs' [sic] to be mislead [sic] with respect to the quality and character of the product," and that Fiber Composites breached this express warranty of merchantability. [Verif. Compl. ¶¶ 46-48.]
With respect to their breach of implied warranty claim, the plaintiffs assert that Fiber Composites "implied a warranty as to the quality, character and durability of the aforesaid DECKING MATERIALS which failed to perform as warranted" and that Fiber Composites breached this implied warranty of merchantability. [Verif. Compl. ¶¶ 49-52.] As a result of Fiber Composites' alleged breach of these express and implied warranties, the plaintiffs claim that they "have and continue to be deprived of the use of their deck comprised of the defective DECKING MATERIALS." [Verif. Compl. ¶ 53.] Specifically, the plaintiffs contend that, "as a result of the breach of said warranties on the part of the defendant, its agent(s), servant(s) and/or employee(s), [they] have suffered severe economic damages, [have been] prevented from the use and enjoyment of their deck and/or outdoor living area(s), and are exposed to health hazards." [Verif. Compl. ¶ 54.] The plaintiffs claim damages in the amount of $500,000 for each of their three claims. [Verif. Compl. ¶¶ 30, 39, 55.]
On July 11, 2011, Fiber Composites filed a notice of removal pursuant to 28 U.S.C. § 1446 based on diversity of citizenship. [DE 1 at 1-2.] On July 15, 2011, Fiber Composites moved to dismiss with prejudice the plaintiffs' complaint, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted. [See DE 3; DE 4.]
Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This pleading standard "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will no do.'" Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 557). Moreover, "[t]he Twombly-Iqbal standard . . . applies to cases that were originally filed in state court and later removed to federal court." Ohuche v. Merck & Co., No. 11 Civ. 2385, 2011 U.S. Dist. LEXIS 73904, at *4 (S.D.N.Y. July 7, 2011) (citing DiFolco v. MSNBC Cable, L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)).
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949(quoting Twombly, 550 U.S. at 570). In Iqbal, the Supreme Court advanced a two-pronged approach to considering a motion to dismiss. First, a court can "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. The Court explained that, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id.; see also id. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Second, "[w]hen 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. at 1950; see also Goldstein v. Pataki, 516 F.3d 50, 53 (2d Cir. 2008) (observing that, in deciding a motion to dismiss, the allegations in the plaintiff's complaint must be taken as true and all reasonable inferences must be drawn in the plaintiff's favor).
"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." Iqbal, 129 S. Ct. at 1949. This plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). In sum, if the plaintiffs' complaint here fails to allege "enough facts to state a claim to relief that is plausible on its face," it must ...