Count I - Breach of Contractĭefendant argues the breach of contract claim should be dismissed because the Amended Complaint contains no allegation that it "violated any actual provision of any actual contract between the parties." Mot. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "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." Id. to `state a claim to relief that is plausible on its face.'" Id. To survive a 12(b)(6) motion, "a complaint must contain sufficient factual matter. But the court is not required to accept as true "legal conclusions," and "hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. "ll allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom." Malleus v. The movant bears the burden of showing that no claim has been stated. Legal Standardįederal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if the plaintiff fails to state a claim upon which relief can be granted. 7, Plaintiff Opposed ("Opposition"), D.E. Defendant filed the present Motion to Dismiss ("Motion"), D.E. Plaintiff alleges liability for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment, and seeks compensatory damages, attorneys' fees, and interests and costs. Defendant then ignored Plaintiff's renewed requests to accept return of the Tablets and Plaintiff filed this lawsuit. The manufacturer, in turn, told Plaintiff that Defendant was liable. Plaintiff alerted Defendant to the problems and sought a refund, but Defendant denied any liability and asserted that Plaintiff should seek recourse from the manufacturer. If not PPM must take back any defectives we have trouble returning it." 2Īfter Plaintiff purchased and resold the Tablets, many of its customers returned them due to battery and near field communication ("NFC") problems. Purchase Order #616 ("Purchase Order") contains several additional provisions, including "ust have 1 year warranty directly back to. The only terms contained in the invoice memorializing the sale ("Invoice") are the identity of the parties, date, total due, product description, quantity, rate, that "Net 30" terms apply, and a "PO # Reference" to number "616." Id., Ex. Plaintiff purchased 2,500 Nabi Big Tab 20" tablets ("Tablets") for $331,250 from Defendant for resale. Defendant Power Play Marketing Group, LLC is a Minnesota company "in the business of purchasing electronic products and re-selling them to the public." Id. Plaintiff Dialectic Distribution, LLC is a New Jersey company "in the business of selling wholesale electronic products." Am. For the reasons set forth below, the motion is GRANTED IN PART AND DENIED IN PART WITHOUT PREJUDICE. The Court reviewed all submissions made in support of the motion and considered the motion without oral argument pursuant to Fed. This matter comes before the Court on Defendant Power Play Marketing Group, LLC's Motion to Dismiss the Amended Complaint.
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