United States District Court, E.D. New York
EASTERN MATERIALS CORPORATION and ISLAND EXTERIOR FABRICATORS, LLC, Plaintiffs,
MITSUBISHI PLASTICS COMPOSITES AMERICA, INC. Defendant.
Johs Avallone Aviles LLP Attorneys for the Plaintiffs By:
Bryan F. Lewis, Esq., Tara M. Darling, Esq., Of Counsel
& Case LLP Attorneys for the Defendant Joshua A. Berman,
Esq., Brendan Woodward, Esq., Susan L. Grace, Esq., Of
MEMORANDUM OF DECISION & ORDER
D. SPATT UNITED STATES DISTRICT JUDGE.
Plaintiffs Eastern Materials Corporation
(“Eastern”), and Island Exterior Fabricators, LLC
(“Island”) (together, the
“Plaintiffs”) commenced this action against the
Defendant, Mitsubishi Plastics Composites America, Inc. (the
“Defendant” or “Mitsubishi”) alleging
claims of breach of contract, breach of warranty and
negligence regarding materials supplied for a construction
project in New York City.
before the Court is a motion by the Plaintiffs, pursuant to
Federal Rule of Civil Procedure (“Fed. R. Civ.
P.” or “Rule”) 15 to amend the
Plaintiffs' claims for breach of contract and breach of
warranty, in accordance with this Court's Memorandum and
Order dated September 19, 2017 (the “Order”). For
the following reasons, the Plaintiffs' motion to amend is
granted with respect to the breach of contract claim and
denied with respect to the breach of warranty claim. As such,
the Plaintiffs may only proceed with the breach of contract
claim against Mitsubishi.
The Factual Background
Court has already detailed the factual allegations at issue
in this motion in its Order, and the parties are familiar
with the facts of this case, they will not be repeated here.
The Relevant Procedural History
January 27, 2017, the Plaintiffs commenced this action by
filing the complaint in the Supreme Court of the State of New
York, Suffolk County. The complaint set forth three causes of
action: breach of contract, negligence and breach of
February 23, 2017, the Defendant filed a Notice of Removal,
removing the action to this Court.
March 20, 2017, the Defendant filed a motion to dismiss all
of the Plaintiffs' claims pursuant to Rule 12(b)(6). In
the Plaintiffs' opposition memorandum, the Plaintiffs
agreed to withdraw their negligence claim.
Court's Order, dated September 19, 2017, the Court
dismissed the Plaintiffs' First Amended Complaint
(“FAC”) without prejudice, finding both the
breach of contract and breach of warranty claim insufficient.
Specifically, the Court found that the breach of contract
claim “failed to properly specify what the agreement
… consisted of and which provisions of any such
agreement were violated.” Order at 11-12. Further, the
Court concluded that the Plaintiffs' consequential
damages claim was conclusory. Id. at 12-15. With
respect to the breach of warranty claim, the Plaintiffs
failed to “provid[e] allegations as to the existence of
an express promise or representation.” Id. at
15-16. The Plaintiffs were granted leave to file a motion to
amend the FAC in a manner consistent with Fed.R.Civ.P. 15
within thirty days of the Order. Id. at 20.
October 18, 2017, the Plaintiffs filed a motion to amend the
FAC. Attached to the motion was a proposed Second Amended
Complaint (“SAC”). As this motion was filed
within thirty days of the Order, the Court deems it timely.
The Plaintiffs claim that the breach of contract claim is
addressed by identifying the contract, the terms at issue,
and the nature of the breaches. Allegedly, the SAC
“specifically pleads that consequential damages were
both reasonably foreseeable and specifically contemplated by
the parties at the time of contracting.” Docket Entry
(“DE”) 15-1 at 5. The SAC also purportedly
includes the warranty, the terms at issue, as well as the
nature of the breaches. See id. at 4-5. The
Defendant maintains that the Plaintiffs fail to correct the
deficiencies of the FAC.
Standard of Review
Civ. P. 15(a), which typically governs a motion to amend a
complaint, states, in relevant part, “A party may amend
its pleading only with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.” Fed.R.Civ.P.
15(a)(2). Unless there is a showing of bad faith, undue
delay, futility or undue prejudice to the non-moving parties,
the district court should grant leave to amend. Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962); Burch v. Pioneer Credit Recovery, Inc., 551
F.3d 122, 126 (2d Cir. 2008) (per curiam) (stating that leave
to amend “should generally be denied in instances of
futility, undue delay, bad faith or dilatory motive, repeated
failure to cure deficiencies by amendments previously
allowed, or undue prejudice to the non-moving party.”);
Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d
Cir. 2001) (internal citations omitted); Hemphill v.
Schott, 141 F.3d 412, 420 (2d Cir. 1998).
decision on whether to grant a motion to amend rests within
the sound discretion of the district court. Aetna Cas.
& Sur. Co. v. Aniero Concrete Co., 404 F.3d 566,
603-04 (2d Cir. 2005); Hemphill, 141 F.3d at 420. In
deciding whether to grant leave to amend, prejudice to the
opposing party is one of the “most important”
issues to consider. AEP Energy Servs. Gas Holding Co. v.
Bank of America, N.A., 626 F.3d 699, 725 (2d Cir. 2010)
(internal quotations omitted).
considering whether a proposed amendment is futile, the Court
must determine whether it could withstand a Rule 12(b)(6)
motion to dismiss. Lucente v. IBM Corp., 310 F.3d
243, 258 (2d Cir. 2002). When reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must accept the factual
allegations set forth in the complaint as true and draw all
reasonable inferences in favor of the Plaintiff. See,
e.g., Walker v. Schult, 717 F.3d 119, 124 (2d
Cir. 2013); Cleveland v. Caplaw Enters., 448 F.3d
518, 521 (2d Cir. 2006); Bold Elec., Inc. v. City of
N.Y., 53 F.3d 465, 469 (2d Cir. 1995); Reed v.
Garden City Union Free Sch. Dist., 987 F.Supp.2d 260,
263 (E.D.N.Y. 2013).
the now well-established Twombly standard, the Court
may only dismiss a complaint if it does not contain enough
allegations of fact to state a claim for relief that is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). The Second Circuit has expounded that,
after Twombly, the Court's inquiry under Rule
12(b)(6) is guided by two principles:
First, although a court must accept as true all of the
allegations contained in a complaint, that tenet is
inapplicable to legal conclusions, and [t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Second, only a
complaint that states a plausible claim for relief survives a
motion to dismiss and [d]etermining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 129
S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009)).
complaint must include “a short and plain statement of
the claim showing that the pleader is entitled to relief,
” in order to survive a motion to dismiss. Fed.R.Civ.P.
8(a)(2). Under Rule 8, a complaint is not required to allege
“detailed factual allegations.” Kendall v.
Caliber HomeLoans, Inc., 198 F.Supp.3d 168,
170 (E.D.N.Y. 2016) (quoting Twombly, 550 U.S. at
555). “In ruling on a motion pursuant to Fed.R.Civ.P.
12(b)(6), the duty of a court ‘is merely to assess the
legal feasibility of the complaint, not to assay the weight
of the evidence which might be offered in support
thereof.'” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 113 (2d Cir. 2010) (quoting Coo ...