KURY v. ABBOTT LABORATORIES, INC. et al

Filing 36

OPINION. Signed by Judge Freda L. Wolfson on 1/17/2012. (gxh)

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
______________________________
:
CANDY KURY, on behalf of herself and all
:
others similarly situated,
:
Civil Action No. 11-803 (FLW)
:
Plaintiff,
:
:
OPINION
vs.
:
:
:
ABBOTT LABORATORIES, INC. d/b/a
:
ABBOTT SALES, MARKETING and
:
DISTRIBUTION CO., et al.,
:
:
Defendants.
:
______________________________:
WOLFSON, United States District Judge:
Numerous class action suits have been filed around the country against defendants,
Abbott Laboratories, Inc. d/b/a Abbott Sales, Marketing and Distribution Co. and Abbott
Laboratories d/b/a Abbott nutrition (collectively, “Defendants”), relating to Defendants’
September 2010 recall of certain Similac-brand infant formula products. The recall was
precipitated by Defendants’ discovery of common warehouse beetles or beetle larvae in
certain Similac powder formulas. In this case, Plaintiff Candy Kury (“Plaintiff”), a New
Jersey resident, asserts claims involving fraud, product liability and unjust enrichment
against Defendants based upon allegations that these infant formulas caused substantial
harm. In addition, Plaintiff seeks to represent a class comprised of all New Jersey citizens
who purchased Similac products during an unspecified class period. In response to these
allegations, Defendants, in the instant matter, move to dismiss the Complaint in its entirety
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for failure to state a claim. For the reasons set forth herein, Plaintiffs’ Complaint is
dismissed; in particular, Plaintiff’s claims pursuant to the New Jersey Consumer Fraud Act,
breach of implied warranty, fraudulent concealment and unjust enrichment are dismissed
with prejudice. Plaintiff’s claim pursuant to the New Jersey Products Liability Act and
breach of express warranty are dismissed without prejudice. In that regard, Plaintiff has
leave to amend the Complaint with respect to those claims dismissed without prejudice
within fifteen days from the date of the Order accompanying this Opinion.
BACKGROUND
On a motion to dismiss, the Court reviews the Complaint by taking its allegations as
true. Defendants manufacture, market, advertise, sell and distribute Similac brand infant
formula products1, a leading brand “sold in grocery stores and pharmacies throughout the
United States, including in New Jersey.” Compl., ¶¶ 25, 26. According to Plaintiff,
Defendants specifically and extensively market Similac products to parents as a product
that “moms can count on for trusted nutrition and the formula that’s right for their babies.”
Id. at ¶ 27. In that connection, the packaging of Similac products promotes uses such as
building “immune support,” “strong bones,” and “brain and eyes.” Id. at ¶ 28. In addition,
Defendants’ marketing materials claim that “[e]ach of the formulas in [the Similac] line
provides the balance of protein, minerals, and other nutrients that helps give babies a
strong start in life. A baby’s first year is so important, so count on Similac for nutrition you
can trust.” Id.
In and around September 2010, during an internal quality review, Defendants

1

According to Defendants, the Similac line consists of at least ten different
products, each available in a variety of sizes.
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discovered that pieces of common warehouse beetles or beetle larvae were present in certain
finished Similac products, which were manufactured in a single facility. Id. at ¶¶ 30-31.
Thereafter, Defendants announced a voluntary recall of those products. In that particular
announcement, Defendants advised the public that “the United States Food and Drug
Administration (“FDA”) has determined that while the formula containing these beetles
poses no immediate health risk, there is a possibility that infants who consume formula
containing the beetles or their larvae could experience symptoms of gastrointestinal
discomfort and refusal to eat as a result of small insect parts irritating the GI tract.”
Compl., ¶ 31. Defendants’ recall encompassed all Similac powdered formula sold in
rectangular tubs, including certain Similac powder product lines offered in plastic
containers, and certain Similac powder product lines offered in sizes such as 8-ounce, 12.4ounce and 12.9-ounce cans. Id. at ¶ 34.
Plaintiff alleges that at an unspecified point in time, she purchased one or more
unspecified Similac-brand products. Id. at ¶¶ 7, 39-40. Plaintiff further alleges that in
purchasing the products, she “relied upon the misrepresentations made by Defendants
about the quality and safety of Similac products, and that Similac products would not
adversely affect her infant child’s health.” Id. at ¶ 39. Moreover, Plaintiff complains that
Defendants “should have known that the failure to exercise proper safety standards and
equipment management would have led to insects infiltrating Similac products, thereby
creating formulas unsafe for infant consumption.” Id. at ¶ 45.
Based upon these allegations, Plaintiff, in her Complaint, asserts five causes of action
arising out of statutory violations and common law: (1) New Jersey’s Consumer Fraud Act
(“NJCFA”); (2) New Jersey Products Liability Act (“NJPLA”); (3) Breach of Express and
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Implied Warranty; (4) Fraudulent Concealment; and (5) Unjust Enrichment. Because of
these violations, Plaintiff claims that she suffered injury in fact, a loss of money or property,
the personal expenditure of time and resources and/or other forms of injury, damage,
mental anguish, and/or physical pain and suffering. See Compl., ¶¶ 54, 64, 71.
DISCUSSION
I.

Standard of Review
When reviewing a motion to dismiss on the pleadings, courts "accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be
entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation
and quotations omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007), the Supreme Court clarified the 12(b)(6) standard.
Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41,
45-46(1957), that "a complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at
45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a
right to relief above the speculative level." Twombly, 550 U.S. at 555. As the Third Circuit
has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be
summed up thus: 'stating ... a claim requires a complaint with enough factual matter (taken
as true) to suggest' the required element. This 'does not impose a probability requirement
at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d
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at 234 (quoting Twombly, 550 U.S. at 555).
In affirming that Twombly standards apply to all motions to dismiss, the Supreme
Court has further explained the principles. First, "the tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948-49, 173 L. Ed. 2d 868 (2009). Second, "only a
complaint that states a plausible claim for relief survives a motion to dismiss." Id.
Therefore, "a court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth." Id. at 1949. Ultimately, "a complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts."
Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). Moreover, in deciding a
motion to dismiss, the court may consider the allegations in the complaint, exhibits
attached to the complaint, matters of public record, and documents that form the basis of
plaintiff's claim. Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir. 2004).
The Third Circuit recently reiterated that "judging the sufficiency of a pleading is a
context-dependent exercise" and "[s]ome claims require more factual explication than
others to state a plausible claim for relief." West Penn Allegheny Health System, Inc. v.
UPMC, 627 F.3d 85, 2010 WL 4840093, at *8 (3d Cir. 2010). This means that, "[f]or
example, it generally takes fewer factual allegations to state a claim for simple battery than
to state a claim for antitrust conspiracy." Id. That said, the Rule 8 pleading standard is to
be applied "with the same level of rigor in all civil actions." 627 F.3d 85, Id. at *7 (quoting
Ashcroft, 129 S.Ct. at 1953).

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II.

PLA: Subsumption
At the outset, before the Court reviews the sufficiency of the allegations, it first

resolves a legal question: whether Plaintiff’s assertion of her NJFLA claim effectively
subsumes Plaintiff’s other claims under the NJCFA, breach of implied warranty, fraudulent
concealment and unjust enrichment. The Court answers in the affirmative.
The New Jersey Products Liability Act, N.J.S.A. 2A:58C-1, et seq., was enacted “to
limit the expansion of products-liability law” and “to limit the liability of manufacturers so
as to balance[] the interests of the public and the individual with a view towards economic
reality.” Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 47 (1996)(quotations and citations
omitted). The NJPLA, therefore, "established the sole method to prosecute a product
liability action[,]" and after its enactment, "only a single product liability action remains."
Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 398-99 (App. Div.), certif. denied, 126
N.J. 390 (1991). In that regard, the Third Circuit has long ago proclaimed that the NJPLA
"effectively creates an exclusive statutory cause of action for claims falling within its
purview." Repola v. Morbark Indus., Inc., 934 F.2d 483, 492 (3d Cir. 1991). Indeed, “the
NJPLA generally subsumes common law product liability claims, thus establishing itself as
the sole basis of relief under New Jersey law available to consumers injured by a defective
product." Id.; see In re Lead Paint Litig., 191 N.J. 405, 436 (2007)(the NJPLA accomplishes
its liability-limiting function by creating “one unified, statutorily defined theory of recovery
for harm caused by a product.”).
Generally, the NJPLA “encompass[es] virtually all possible causes of action relating
to harms caused by consumer and other products,” In re Lead Paint, 191 N.J. at 436-37,
“except . . . breach of an express warranty.” N.J.S.A. 2A:58C-1b(3). Because of the breadth
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of the NJPLA, there is no question that New Jersey federal and state courts have
consistently dismissed product liability claims based on common-law theories when the
heart of those theories is the potential "harm caused by a product." See, e.g., Port Auth. of
N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305, 313 (3d Cir. 1999) (dismissing negligence
claim, stating that "under New Jersey law negligence is no longer viable as a separate claim
for harm caused by a product"); Thomas v. Ford Motor Co., 70 F. Supp. 2d 521, 528-29
(D.N.J. 1999) (dismissing common-law claim for negligent manufacture); Reiff v.
Convergent Techs., 957 F. Supp. 573, 583 (D.N.J. 1997) (dismissing negligence and breach
of warranty claims); McWilliams v. Yamaha Motor Corp. USA, 780 F. Supp. 251, 262
(D.N.J. 1991) (dismissing claims of negligence and breach of implied warranty), aff'd in
part, rev'd in part on other grounds, 987 F.2d 200 (3d Cir. 1993); Green v. Gen. Motors
Corp., 310 N.J. Super. 507, 517 (App. Div. 1998) (stating that "causes of action for
negligence, strict liability and implied warranty have been consolidated into a single
product liability cause of action" under the NJPLA).
Moreover, courts have also found that the NJPLA subsumes common law and
statutory fraud claims so long as the harm alleged was caused by a product. See Brown v.
Philip Morris, Inc., 228 F. Supp. 2d 506, 517 (D.N.J. 2002)(fraud claim preempted by the
NJPLA when defendant’s alleged misrepresentations resulted in “harm caused by a
product”); Sinclair, 195 N.J. at 66 (statutory consumer fraud claim subsumed by the NJPLA
when the “[t]he heart of plaintiff’s case [was] the potential harm caused by Merk’s drug”);
McDarby v. Merck & Co., 401 N.J. Super. 10, 95-96 (App. Div. 2008)(statutory consumer
fraud claim subsumed by the NJPLA because “the gravamen of [the] claim was that Merk
marketed Vioxx fully aware of its cardiovascular risk [and] made misrepresentations[] and
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. . . omis[ssions]” in connection with its marketing). Indeed, this Court has previously, in
Lopienski v. Centocor, Inc., No. 07-4519, 2008 WL 2565065, at *1 n.2 (D.N.J. Jun. 25,
2008), found that claims of negligence, breach of implied warranty, negligent and
fraudulent misrepresentation, statutory consumer fraud and fraudulent concealment are
subsumed by the NJPLA when the theory of a case is premised upon product liability.
Here, there is no doubt that Plaintiff’s case is based on a product liability theory. In
fact, in the first paragraph of the Complaint, Plaintiff characterizes this case as involving
Defendants’ manufacturing and selling of various defective Similac brand infant powder
formulas. Compl., ¶ 1. Simply, the heart of Plaintiff’s complaints is that her or her child’s
injuries – economic and non-economic alike – resulted from ingesting the allegedly
defective Similac products that Defendants marketed and sold. Plaintiff, however, aruges
that the causes of action, not involving the NJPLA or express warranty, are not subsumed
by the NJPLA because in addition to “the type of damages [recoverable] under the
[NJPLA],” such as personal injuries and emotional distress, “she is also seeking damages
for the loss of the product itself,” which are “specifically excluded [from recovery under] the
[NJPLA].” Plaintiff’s Opp. at p.11. Significantly, Plaintiff implicitly acknowledges that each
of her claims, which are not brought pursuant to the NJPLA or the breach of express
warranty, are barred by the NJPLA, except to the extent those claims seek the lost value of
the product itself.
Nevertheless, even the claim of lost value in this case is not sufficiently
distinguishable from the broad harm encompassed by the NJPLA. As the court has
explained in Felluer v. Tri-Union Seafoods, LLC, No. 06-0688, 2010 U.S. Dist. LEXIS
36195, at *15 (D.N.J. Apr. 13, 2010), “[t]he fact that [a plaintiff] . . . seeks economic
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damages to reimburse her for the cost of the product (in addition to personal injury
damages) does not change the fact that this is, in essence, a product liabilities claim.” The
court, deriving its reasoning from the New Jersey appellate division decision in McDarby,
went on to hold that because the NJPLA’s definition of harm covers virtually any economic
harm caused by the allegedly defective product, a plaintiff should not be permitted to bring
separate claims under the NJPLA and NJCFA “as the [NJPLA] was intended to unify
product liabilities causes of action into a single claim.” Id. at *15-16 (citing McDarby, 401
N.J. Super at 277-78). Moreover, a plaintiff should not be able to benefit from provisions
– providing treble damages and attorney’s fees – contained in the NJCFA despite the fact
that such provisions were intentionally excluded from the NJPLA. See McDarby, 401 N.J.
Super at 278. Indeed, this line of reasoning has been adopted by courts in this district. See
Arlandson v. Hartz Mountain Corp., No. 10-1050, 2011 WL 2112494, at *11 (D.N.J. May 25,
2011)(dismissing claim for unjust enrichment where the complaint’s “core issue” was the
harmfulness of the defendant’s product); O’Donnell v. Kraft Foods, Inc., No. 09-4448, 2010
WL 1050139, at *3 (D.N.J. Mar. 18, 2010)(plaintiffs’ claim of lost value from purchasing the
hot dogs was preempted by NJPLA, because those products’ lost value resulted from “the
increased risk of cancer [plaintiffs] allege[d] arises from consumption of [the] product . .
.”); Levinson v. Johnson & Johnson Consumer Cos., 2010 U.S. Dist. LEXIS 8654 (D.N.J.
Feb. 1, 2010); Smith v. Merial Ltd., No. 10-439, 2011 U.S. Dist. LEXIS 56461, at *11-13
(D.N.J. May 26, 2011) (“Plaintiffs attempt to classify their claims as non-product liability
claims by alleging only economic damages related to the price of the product as opposed to
damages related to the harm caused by the product. However, limiting a claim to economic
injury and the remedy sought to economic loss cannot be used to obviate the PLA.”
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(citations and quotations omitted)).
Accordingly, based on the allegations here, any economic loss or non-economic loss including the cost of purchasing the Similac products - Plaintiff allegedly suffered, resulted
from her infant ingesting the powder formulas, which arises solely under product liability.
See Smith, 2011 U.S. Dist. LEXIS 56461 at *13 (“Though Plaintiffs assert contract,
quasi-contract, and consumer fraud claims, the core issue underlying Plaintiffs' claims is
that the chemicals in Frontline products are dangerous and caused physical damage to
Plaintiffs' property, in the form of harm to their pets' health.”). This type of harm falls
squarely within the exclusive purview of the NJPLA and as such, Plaintiff’s claims pursuant
to the NJCFA, breach of implied warranty, fraudulent concealment and unjust enrichment
are subsumed by the NJPLA.2 Plaintiff’s proper recourse is through the NJPLA and/or
breach of express warranty, as explained below.

2

Plaintiff relies on Shannon v. Howmedica Osteonics Corp., No. 09-4171, 2010
U.S. Dist. LEXIS 8621, at *7 (D.N.J. Feb. 1, 2010), for the proposition that her claims
based upon the lost value of the Similac products are separate and distinct from her
NJPLA claim. The Court does not find the analysis of that case persuasive as the
Shannon court provided little reasoning for its holding. Plaintiff does not advance any
other authorities to support her position. Nonetheless, even if lost value is an exception
to NJPLA’s purview, Plaintiff’s claims relating to the loss value of the products may also
be dismissed on the ground that Plaintiff was offered a refund for the recalled products.
Indeed, Defendants announced in a public notice that they would provide a refund to
any purchaser of Similac products that were the subject of the recall. While Plaintiff
does not allege in the Complaint that she has received a refund, the mere tender of relief
moots her claim for the purchase price of the Similac products. See Gates v. City of
Chicago, 623 F.3d 389, 413 (7th Cir. 2010); see, e.g., Brown v. Abbott Labs., Inc., No. 106674, 2011 U.S. Dist. LEXIS 110175, at *15-16 (N.D. Ill. Sep. 27, 2011); Jovine v. Abbott
Labs., Inc., 795 F. Supp. 2d 1331 (S.D. Fla. 2011); Tosh-Surryhne v. Abbott Labs. Inc.,
No. 10-2603, 2011 U.S. Dist. LEXIS 110107, at *10-11 (E.D. Cal. Sept. 26, 2011); Jasper v.
Abbott Labs., Inc., No. 11-229, 2011 U.S. Dist. LEXIS 73806, at *18-19 (N.D. Ill. Jul. 8,
2011); Bland v. Abbott Labs., No. 11-430, 2012 U.S. Dist. LEXIS 1732, at *6 (W.D. Ky.
Jan. 6, 2012).
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III.

New Jersey’s Products Liability Act
To properly plead a cause of action under the NJPLA, a plaintiff must allege that the

defendant manufactured the product, that a reasonably foreseeable user was injured, that
the product was defective, that the defect existed when it left the defendant's control, and
that the defect was the factual and proximate cause of the plaintiff's injury. Myrlak v. Port
Auth. of N.Y. and N.J., 157 N.J. 84, 97 (1999); Coffman v. Keene Corp., 133 N.J. 581, 593
(1993); Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 394 (1982). Importantly, the
New Jersey Supreme Court has advised that the NJPLA requires a physical injury. Sinclair,
195 N.J. at 64 (under the NJPLA, “the word ‘injury’ is surrounded by ‘physical illness,’
which explicitly requires something physical, and ‘death,’ which inherently is physical.”).
In this case, Defendants challenge the sufficiency of Plaintiff’s NJPLA claim based
on Plaintiff’s failure to plead any physical injury. The Court agrees; nothing in the
allegations contained in the Complaint sets forth any physical injuries to Plaintiff or
Plaintiff’s infant child, who is not a party in this case.3 Other than conclusory and vague
allegations that Plaintiff suffered damages, mental anguish and pain and suffering, the
extent of any physical damages suffered by Plaintiff or Plaintiff’s infant child are contained

3

Having reviewed Plaintiff’s Complaint, the Court finds that there are no
allegations that the Similac products Plaintiff purchased were subject to the September
2010 recall. As Plaintiff avers in her Complaint that only certain types of Similac
products were recalled, Plaintiff fails to identify that the products she purchased were
subject to the recall. Rather, Plaintiff merely alleges that “Defendants misled Plaintiff
into purchasing the unsafe Similac products,” see Compl., ¶ 39, and that “Plaintiff and
the members of the putative Classes would not have purchased the recalled Similac
products had they known of their defective condition.” These bare allegations are
insufficient under the Iqbal standard. Indeed, Plaintiff recognizes this deficiency and
requests that “if given the opportunity to amend the Complaint, Plaintiff would be able
to show that she purchased products that should have been recalled . . . .” Plaintiff’s
Opp., pp. 8-9.
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in these allegations: “Defendants discovered that Similac-brand formulas had been
contaminated and contained beetles and beetle larvae, which if consumed by infant
children, could lead to serious health concerns, including gastrointestinal problems,
diarrhea and the like.” Compl., ¶ 1 (emphasis added). In that connection, Plaintiff alleges
that “Defendants caused serious injury to Plaintiff and the putative Classes she seeks to
represent.” Id. at ¶ 3. These are clearly insufficient under the Iqbal standard to allege a
physical injury, and as a result, Plaintiff’s NJPLA claim is dismissed.4
IV.

Breach of Express Warranty
An express warranty claim is codified under N.J.S.A. 12A:2-313, which provides:
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which
relates to the goods and becomes part of the basis of the bargain creates an
express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain
creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates
an express warranty that the whole of the goods shall conform to the sample
or model.
(2) It is not necessary to the creation of an express warranty that the seller use
formal words such as "warrant" or "guarantee" or that he have a specific intention
to make a warranty, but an affirmation merely of the value of the goods or a
statement purporting to be merely the seller's opinion or commendation of the goods
does not create a warranty.

N.J.S.A. 12A:2-313; Gupta v. Asha Enters., L.L.C., 422 N.J. Super. 136, 153 (App. Div. 2011).

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As a final note, Defendants ask the Court dismiss the Complaint in its entirety
because Plaintiff’s allegations of injury do not suggest that Plaintiff suffered any injury.
However, because the Court has already dismissed Plaintiff’s claims on various grounds
set forth above, it need not consider this question in connection with the other causes of
action.
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Here, Defendants argue that the Court should dismiss this claim for three reasons:
(1) Plaintiff fails to allege that there was anything wrong with any unit of Similac she
purchased; (2) all of Defendants’ statements that Plaintiff pleads are actionable are either
not actually alleged to be false or mere puffery; and (3) Plaintiff fails to plead that she
provided the requisite pre-litigation notice of breach. Dispositive of the claim for breach
of express warranty is Plaintiff’s failure to provide a pre-litigation notice to Defendants
regarding the alleged breach.
New Jersey has adopted the Uniform Commercial Code's ("UCC") notice
requirement for an express warranty claim. Luppino v. Mercedes-Benz USA, LLC, No. 095582, 2011 U.S. Dist. LEXIS 65495, at *7 (D.N.J. Jun. 20, 2011); Joc, Inc. v. Exxonmobil
Oil Corp., No. 08-5344, 2010 WL 1380750, at *4 (D.N.J. Apr. 1, 2010); Slack v. Suburban
Propane Partners, L.P., No. 10-2548, 2010 WL 5392845, at *4-5 (D.N.J. Dec. 22, 2010).
It provides: "Where a tender has been accepted . . . the buyer must within a reasonable time
after [s]he discovers or should have discovered any breach notify the seller of breach or be
barred from any remedy." N.J.S.A. 12A:2-607(3)(a). Based upon the language, this
statutory notice is a “condition precedent to filing any suit for breach of warranty.” Joc,
2010 WL 1380750 at *4.
There is no dispute that Plaintiff has failed to plead that she provided the prelitigation notice of breach. Indeed, Plaintiff has not disputed this fact in her opposition.
More importantly, Plaintiff offers no excuse or explanation for her failure to do so.
Accordingly, because Plaintiff has failed to allege that the condition precedent has been met
– sending a pre-litigation notice – Plaintiff’s express warranty claim necessarily fails. See
Luppino, 2011 U.S. Dist. LEXIS 65495 at *7 (“At no time has any court in this district or in
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the state of New Jersey found that a buyer is not required to provide a direct seller with
pre-suit notice in an action for express breach of warranty. Thus, Stern and Casiero's
admission that they have failed to provide notice to Defendant proves fatal to their breach
of express warranty claims.”). However, since the Court cannot determine whether Plaintiff
in fact sent a notice to Defendants, or whether Plaintiff is excused from sending a notice,
this claim is dismissed without prejudice.
CONCLUSION
For the foregoing reasons, the Court grants Defendants’ motion to dismiss. In sum,
Plaintiff’s claims pursuant to the NJCFA, breach of implied warranty, fraudulent
concealment and unjust enrichment are dismissed as they are subsumed by NJPLA.
Plaintiff’s claim pursuant to the NJPLA and breach of express warranty are dismissed
without prejudice. In that regard, Plaintiff has leave to amend the Complaint with respect
to those claims dismissed without prejudice within fifteen days from the date of the Order
accompanying this Opinion.

/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge
Date: January 17, 2012

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