Argabright v. Rheem Manufacturing Co. (201 F. Supp. 3d 578, 2016)

United States District Court for the District of New Jersey 2016-08-15

Commerce and Trade

Citations

Full opinion text

AMENDED OPINION

SIMANDLE, Chief Judge

I. INTRODUCTION

In this putative multistate class action, Plaintiff alleges that Defendant Rheem Manufacturing Company (“Rheem” or “Rheem Manufacturing”) manufactured defective residential heating, ventilating, and air conditioning (“HVAC”) systems under the Rheem and Ruud brand names. Plaintiffs in the proposed class consist of all individuals who purchased or obtained Defendant’s HVAC systems, and the following claims are asserted in the Complaint: breach of express and implied warranties and violation the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq.; claims for fraudulent concealment, negligent misrepresentation, and strict product liability; statutory claims under the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1 et seq.,i the Arizona Consumer Fraud Act, A.R.S. § 44-1521 et seq., and New York General Business Law § 349; and claims for unjust enrichment and declaratory relief.

Defendant Rheem Manufacturing has moved to dismiss all counts under Federal Rule of Civil Procedure 12(b)(6). [Docket Item 8.]

For the reasons set forth below, the Court finds that the allegations support a plausible claim for breach of implied warranty and violation of the Magnuson-Moss Warranty Act, and Defendant’s motion will be denied with respect to those Counts. The Court will grant Defendant’s motion with respect to the remaining claims.

II. BACKGROUND

This putative class action arises from the alleged failure of certain copper evaporator coils contained in HVAC units that Defendant Rheem designed, manufactured, advertised, and sold to homeowners, builders, and contractors in the United States. The HVAC units are sold under the brand names Rheem and Ruud, and come with either a five- or ten-year limited parts warranty (the “Warranty”), which provides:

RHEEM SALES COMPANY, INC. (Manufacturer of Rheem, Ruud and WeatherKing products) warrants the Covered Equipment to be free from defects in materials and workmanship, and will repair or replace, at its option, ANY PART of Covered Equipment installed in residential ... applications which fails in normal use and service within the Applicable Warranty Periods ....

(Limited Warranty — Parts, Ex. A to Def. Br. [Docket Item 8-2].) Under “EXCLUSIONS,” the Warranty states:

In addition to the specific exclusions set forth in the other sections of this Limited Warranty document, THIS Limited Warranty WILL NOT APPLY TO:

(d) parts installed with Covered Equipment or used in connection with normal maintenance, such as cleaning or replacing air filters, refrigerant, thermostats, tubing, or concrete pads ....

(Id.) The Warranty further states, under a section titled “LABOR COSTS,” that it “does NOT cover any labor costs or expenses for service, NOR for removing or reinstalling parts.” (Id. (emphasis in original); see also Compl. ¶¶ 50, 91.)

Plaintiffs allege that the evaporator coils contained in the Rheem and Ruud HVAC units, which are made from copper based alloys, improperly and prematurely corrode and leak refrigerant under normal use. (Compl. ¶6.) The deterioration that occurs is referred to as formicary corrosion, or sometimes pinhole corrosion. (Id. ¶ 39.) The loss of refrigerant reduces or eliminates the ability of the HVAC units to provide cold air and reduces their ability to function. (I& ¶¶ 7, 42.) Plaintiff alleges that the faulty evaporator coils are a defect in Defendant’s product, and violates the express warranty and implied warranty of merchantability.

Plaintiffs additionally allege that Defendant knew or should have known of this defect based on numerous complaints they received from consumers and service technicians about failing or leaking copper coils. In their Complaint, Plaintiff includes excerpts from two dozen online consumer reviews noting problems with the evaporator coils and leakage of refrigerant. (See Compl, ¶ 26.) Moreover, Plaintiffs note that in 2013, Defendant introduced new coils made from aluminum two and a half times thicker than its counterpart in copper, and in a 2013 product video about the switch, Defendant had explained that “obviously the biggest difference that aluminum affords us is the elimination of formi-cary corrosion.” (Id. ¶¶ 58-60.) According to Plaintiffs, the switch to thicker aluminum is also an indication that Defendant was aware of the corrosion problems with existing Rheem HVACs. (Id. ¶ 61.)

Plaintiffs assert that Defendant, despite knowing that their HVACs contained this defect, continued to represent their product’s quality and fitness, and continued to warrant that the units were “free from defects in materials and workmanship.” (Id. ¶¶ 54-55.) Additionally, pointing to the two dozen consumer reviews of Defendant’s HVAC systems, Plaintiffs assert that Defendant refused to honor its warranty obligations because it consistently refused to pay for replacement refrigerant or labor costs associated with the repair, and failed to replace HVAC units that had failed completely. (Id. ¶¶62, 98, & 102.)

Plaintiffs seek to bring this suit on behalf of all persons in the United States who purchased or acquired Rheem HVACs. In addition, they name three Plaintiffs, Lawrence Argabright, Victoria Feeht, and Librado Montano, to represent, alternatively or in addition to the nationwide class, subsets of the class of purchasers who reside in New Jersey, New York, and Arizona, respectively. (Id. ¶ 25-27.)

Lawrence Argabright, a resident of Sha-mong, New Jersey, purchased his Rheem HVAC system on September 9, 2011, from Crown Boiler Company and had it installed by David Wardell Heating and Cooling. (Id. ¶¶ 64, 66.) Plaintiff first noticed that his HVAC system was not cooling his home in July 2014, and subsequently called technicians three times over the course of July and August to inspect his unit. On the last visit, the technician noted that the leaks in refrigerant were due to a faulty evaporator coil, which the technician replaced. (Id. ¶¶ 67-69.) Plaintiff alleges that although Defendant provided Plaintiff with a new coil under its warranty, Plaintiff paid a total of $844.45 for replacement refrigerant and labor from the three service visits, which Defendant did not cover. (Id. ¶ 70.)

Victoria Fecht, a resident of Carle Place, New York, purchased and installed her Rheem HVAC unit through Daverio Mechanical, a Rheem Top Contractor, who represented that Rheem was superior to comparable products from other manufacturers. (Id. ¶¶ 72-74.) Plaintiffs HVAC system was installed in 2010. In June of 2014, Plaintiff noticed that the unit was not adequately cooling her home, and an inspection by a technician revealed that the system had a refrigerant leak. (Id. ¶ 77.) During a second service visit in August 2014, the inspecting technician noted that the unit’s evaporator coils had multiple leaks, and a new coil was installed. (Id. ¶ 78.) Plaintiff paid for replacement refrigerant, service costs, and the new evaporator coil which together totaled $2,148.38. She alleges that to date, Defendant has not provided any compensation or reimbursement. (H. ¶ 79.)

Plaintiff Librado Montano, a resident of Sahuarita, Arizona, purchased and installed a Rheem HVAC system in his home in or around October 2011, after a Rheem Top Contractor, Oasis Air Conditioning & Heating, represented to him that Defendant’s units were superior to its competitors. (Id. ¶¶ 80-84.) Plaintiff noticed that the HVAC unit was not cooling his home in or around March 2015 and called the same contractor who had installed his unit to diagnose and fix the problem. The technician found a leak in the evaporator coil in March of 2015, and replaced the coil one month later in April. (Id. ¶¶ 85-87.) Plaintiff asserts that the coil was covered under Defendant’s warranty, but that Defendant has not compensated him for the $1,312 he paid in total for replacement refrigerant

and service costs. (Id. ¶ 88-89). There are no allegations that any of the three Plaintiffs’ HVAC units suffered problems after the replacement coils were installed.

Plaintiffs’ Complaint asserts claims for breach of express warranty (Count I); breach of implied warranty of merchantability (Count II); violation of the Magnu-son-Moss Warranty Act (“MMWA”) (Count V); fraudulent concealment (Count III); negligent misrepresentation (Count IV); strict product liability (Count VI); violations of the New Jersey Consumer Fraud Act (“NJCFA”), New York General Business Law (“N.Y. GBL”) § 349, and the Arizona Consumer Fraud Act (“ACFA”) (Counts VII, VIII, & IX); unjust enrichment (Count X); and declaratory relief (Count XI). Because Plaintiffs do not oppose the dismissal of their claim for strict liability (see PI. Br. [Docket Item 26] at 14 n.3), Count VI will be dismissed with prejudice.

Defendant seeks to dismiss the remaining ten counts (Def. Br. [Docket Item 8] and Def. Reply [Docket Item 29]), and the Court will address each claim in turn.

III. STANDARD OF REVIEW

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the nonmoving party. A motion to dismiss may be granted only if a court concludes that the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Although the court must accept as true all well-pleaded factual allegations, it may disregard any legal conclusions in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009). Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

In addition, the complaint must contain enough well-pleaded facts to show that the claim is facially plausible. This “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “If the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief.” Id. at 679, 129 S.Ct. 1937 (internal quotation marks and citation omitted).

Rule 9(b) of the Fed. R. Civ. P. requires particularized pleading for the conduct underlying Plaintiffs’ fraud claims. Under- Rule 9(b), the “circumstances” of the alleged fraud must be pleaded with enough specificity to “place defendants on notice of the precise misconduct with which they are charged.” Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.1984). Although the rule states that “[mfelice, intent, knowledge, and other conditions of a person’s mind may be alleged generally,” and does not require the plaintiff to plead every material detail of the fraud, the plaintiff must use “alternative means of injecting precision and some measure of substantiation into their allegations of fraud.” In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d Cir.2002) (internal quotations and citations omitted).

IV. DISCUSSION

A. Breach of Express Warranty (Count I)

Plaintiffs complain that Defendant breached its Warranty by failing to replace the refrigerant, failing to pay for the cost of repair, and replacing the defective evaporator coil with coils that are “prone to the same defect in manufacture and/or design as the original.” (PL Br. at 4.) Plaintiffs also argue that Defendant’s Warranty fails of its essential purpose because the remedy they chose was insufficient under the contract: Defendant never elected to repair the defective coils, and, according to Plaintiffs, chose replacement coils that were made of the same copper alloy material susceptible to formicary corrosion. (Id. at 5-7.) Finally, Plaintiffs argue that the Warranty is unconscionable because Defendant knew that their HVAC units contained this defect when they sold them, and “manipulated the terms of the warranty” to avoid the costs of repair. (Id. at 8-9.)

Even construed liberally, however, the allegations in Plaintiffs’ Complaint are insufficient to plausibly make out Plaintiffs’ claims for breach of warranty.

1. Defendant Did Not Breach the Terms of Its Warranty

Plaintiffs’ first argument, that Defendant breached its Warranty by refusing to pay for repair costs and refrigerant, is without merit. Under New Jersey law, “to state a claim for breach of express warranty, Plaintiffs must properly allege: (1) that Defendant made an affirmation, promise or description about the product; (2) that this affirmation, promise or description became part of the basis of the bargain for the product; and (3) that the product ultimately did not conform to the affirmation, promise or description.” Francis E. Parker Memorial Home, Inc. v. Georgia-Pacific LLC, 945 F.Supp.2d 543, 568 (D.N.J.2013). In this case, Defendant’s parts warranty is limited, and allows Defendant, “at its option,” to replace a failing part, without paying for the cost of labor and repair. (See Ex. A to Def. Br. (stating that Rheem “will repair or replace, at its option, ANY PART of Covered Equipment ... which fails in normal use and service,” and will “NOT cover any labor costs or expenses for service, NOR for removing or reinstalling parts.”).)

As an initial matter, the Court rejects Plaintiffs’ argument that because Defendant’s Warranty promised that the units will be “free from defects and workmanship,” Plaintiffs “trusted they would be protected from the failure of the unit or any part of it during the warranty period.” Plaintiffs appear to be suggesting, in other words, that Defendant breached the Warranty merely because its HYAC units malfunctioned while still under the warranty period. No reasonable reading of the Warranty suggests that Defendant made such a representation. Defendant promised a working HVAC unit for five or ten years, along with the limited remedy of repair or replacement of a part in the case of malfunction within that time period. (Ex. A of Def. Br.) (promising that product would be “free from defects and workmanship, and will repair or replace, at its option, ANY PART of Covered Equipment ... which fails in normal use and service within the Applicable Warranty Periods”). Because the limited replacement clause states Defendant’s obligation in the case of a parts failure, the Warranty did not guarantee a defect-free product that would need no replacement or repair. Plaintiffs’ interpretation of the Warranty would render the replacement clause meaningless, and the Court will therefore decline to adopt it. See Kuzian v. Electrolux Home Prods., Inc., 937 F.Supp.2d 599, 611 (D.N.J.2013) (“[A]n express warranty with a limited time period does not mean that a seller is promising a defect-free product.”).

According to Plaintiffs’ own allegations, Plaintiffs received the precise benefit to which they were entitled under the Warranty: a replacement coil. The Complaint explicitly states that a “new evaporator coil was itself provided under warranty” to Argabright, and the coil provided to Mon-tano was also “covered under warranty.” (Compl. ¶¶ 70, 88.)

Plaintiffs complain that Defendant should have exercised the “repair” provision under the Warranty and covered the labor costs associated with servicing their units, but that was never required. The Warranty gave full discretion to Defendant to “repair or replace,” and, unfortunately for Plaintiffs, Defendant chose in this instance to exercise its option to replace. Nor does Plaintiffs’ complaint that Defendant failed to cover the cost of replacement refrigerant • amount to a cause of action for breach, since Defendant’s Warranty expressly states that parts “used in connection with normal maintenance, such as ... refrigerant,” are excluded from coverage. (Ex. A. to Def. Br.)

To the extent Plaintiffs argue that Defendant breached the Warranty by providing the same allegedly defective copper coil instead of the aluminum coil, that fact was nowhere in Plaintiffs’ Complaint, and the Court will disregard it in deciding the present motion. See Voneida v. Pennsylvania, 508 Fed.Appx. 152 (3d Cir.2012) (“[Statements in a brief are not a substitute for the allegations in the complaint”); Seeds of Peace Collective v. City of Pittsburgh, 453 Fed.Appx. 211, 215 (3d Cir.2011) (“[W]e do not consider factual allegations made in [the plaintiffs] brief but not pleaded in the complaint.”).

If Plaintiffs continued to experience problems with their HVAC units even after the installation of a replacement coil, indicating that Defendant’s remedy under the Warranty was in fact inadequate, that might very well sway the Court’s analysis. See Chatlos Sys. Inc. v. Nat’l Cash Register Corp., 635 F.2d 1081, 1086 (3d Cir.1980) (where defendant “repeatedly attempted to correct the deficiencies” but “nevertheless still had not provided the product warranted a year and a half after” product broke down, the “delay made the correction remedy ineffective, and it therefore failed of its essential purpose.”). Should Plaintiffs choose to amend their Complaint to include such allegations, the Court will address it fully at that time. Presently, however, the Complaint includes ho facts which would suggest that the new coil to which Plaintiffs were entitled failed to cure the alleged defect. Accordingly, the Court finds that Plaintiffs have not pleaded a claim for breach.of the express warranty.

2. The Warranty Does Not Fail of Its Essential Purpose

Plaintiffs’ second argument, that the Warranty fails of its essential purpose, is equally without merit. New Jersey law permits parties to a contract to establish an exclusive or limited remedy under the terms of the contract. N.J.S.A. 12A:2-719(l)(b). However, “[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose,” a remedy may be available under the New Jersey U.C.C. N.J.S.A. § 12A:2-719(2); see also id. cmt. 1 (“[W]here an apparently fair and reasonable clause because of circumstances fails in its purpose or operates to deprive either party of the substantial value of the bargain, it must give way to the general remedy provisions of this Article.”); BOC Grp., Inc. v. Chevron Chem. Co., LLC, 359 N.J.Super. 135, 819 A.2d 431, 438 (N.J.Super.Ct.App.Div.2003). Courts have generally concluded that “ ‘so long as the buyer has the use of substantially defect-free goods, the limited remedy should be given effect.’ ” Viking Yacht Co., Inc. v. Composite One LLC, 385 Fed.Appx. 195, 207 (3d Cir.2010) (quoting Chatlos Sys., Inc. v. Nat’l Cash Register Corp., 635 F.2d 1081, 1085 (3d Cir.1980)). But where the seller is “either unwilling or unable to conform the goods to the contract,” Chatlos, 635 F.2d at 1085, or where “novel circumstances not contemplated by the parties” works to deprive a party of the “substantial value” of its bargain, the remedy will not suffice. BOC Grp., 819 A.2d at 438 (internal quotations and citation omitted).

Thus, for example, courts have held that a remedy fails of its essential purpose if, “after numerous attempts to repair,” the product does not operate free of defects. Gen. Motors Acceptance Corp. v. Jankowitz, 216 N.J.Super. 313, 523 A.2d 695, 703 (N.J.Super.Ct.App.Div.1987); see also Chatlos, 635 F.2d at 1085-86 (concluding that remedy failed of its essential purpose under New Jersey law when seller was unable to correct deficiencies in product after a year and a half of trying). Similarly, a remedy may also be held to fail of its purpose “if the buyer is required to perform an act that cannot be done,” such as where a warranty calls for parts to be delivered, but the parts were destroyed, or when “repair or replacement take an unreasonable time to complete.” BOC Grp., 819 A.2d at 438-39. Since the “primary objective” of a limited remedy “is to give the seller an opportunity to make the goods conform while limiting exposure to risk by excluding liability for damages that might otherwise be due,” Chatlos, 635 F.2d at 1085, the key inquiry in determining whether a limited remedy failed of its essential purpose is “whether the buyer is given, within a reasonable time, goods that conform to the contract.” Delhomme Indus., Inc. v. Houston Beechcraft Inc., 669 F.2d 1049, 1063 (5th Cir.1982).

Similar facts are not present in this case and do not make out a claim that the Warranty failed of its essential purpose. Defendant warranted only that in the case of a parts failure, it would, at its option, “repair or replace” the part. Had Defendant refused to repair or replace the nonworking coils, or had Defendant’s replacement parts failed to function, saddling Plaintiffs with non-working units still under warranty, Plaintiffs would have a fair claim that the remedy contemplated under the Warranty failed of its essential purpose. See Garden State Food Distribs,, Inc. v. Sperry Rand Corp., 512 F.Supp. 975, 978 (D.N.J.1981) (explaining that courts have held remedy inadequate where “the plaintiffs remedy was limited solely to repair or replacement of defective parts and the seller failed to replace or repair in a reasonably prompt and non-negligent manner” (internal quotations and citation omitted)). But the allegations in this case fall far short. Rheem reimbursed Plaintiffs for the replacement evaporator coils in accordance with the contractual terms, and there are no allegations to suggest that Defendant delayed or failed to act. Although Plaintiffs now claim in their brief that the replacement coils are made of the same copper alloy material and are prone to the same defect, that fact was not pleaded in the Complaint, and the Court will not consider it. More importantly, even if that were true, there is no allegation that Plaintiffs’ HVAC units continued to malfunction after the replacement coils were installed. Based solely on the facts in the Complaint, Defendant replaced the malfunctioning part, leaving Plaintiffs with working HVAC units. The Gourt cannot conclude, based on these allegations, that Defendant faded to provide Plaintiffs with “goods that conform to the contract,” or were deprived of the “substantial value” of the bargain. Accordingly, the Court finds that Plaintiffs have not stated a plausible claim that Defendant’s remedy “failed of its essential purpose.” See Roberts v. Detroit Diesel Corp., 2007 WL 1038986, at *6 (N.J.Super.Ct.App.Div. Apr. 9, 2007) (“We are satisfied that the warranty did not fail of its essential purpose because plaintiff cannot show that Detroit Diesel failed to repair the engine problems and that the engines did not operate properly after they were repaired.”).

3. The Warranty Is Not Unconscionable

The Court now turns to Plaintiffs’ third argument: that Defendant’s Warranty is unconscionable. It is well-settled that courts “may refuse to enforce contracts that are unconscionable or violate public policy.” Saxon Constr. & Mgmt. Corp. v. Masterclean of N.C., Inc., 273 N.J.Super. 231, 641 A.2d 1056, 1058 (N.J.Super.Ct.App.Div.1994). In consumer goods transactions such as those involved in this case, “‘unconscionability must be equated with the concepts of deception, fraud, false pretense, misrepresentation, concealment and the like, which are stamped unlawful under N.J.S.A. 56:8-2.’ ” Palmucci v. Brunswick Corp., 311 N.J.Super. 607, 710 A.2d 1045, 1049. (N.J.Super.Ct.App.Div.1998) (quoting Kugler v. Romain, 58 N.J. 522, 279 A.2d 640, 652 (1971)). A “simple breach of warranty or breach of contract is not per se unfair or unconscionable.” See Gennari v. Weichert Co. Realtors, 288 N.J.Super. 504, 672 A.2d 1190, 1205 (N.J.Super.Ct.App.Div.1996); see also D’Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J.Super. 11, 501 A.2d 990, 998 (N.J.Super.Ct.App.Div.1985).

Unconscionability may be either substantive or procedural. New Jersey courts may find a contract term substantively unconscionable if it is “ ‘excessively disproportionate’” and involves an “ ‘exchange of obligations so one-sided as to shock the court’s conscience.’ ” Delta Funding Corp. v. Harris, 189 N.J. 28, 912 A.2d 104, 120 (2006) (quoting Sitogum Holdings, Inc. v. Ropes, 352 N.J.Super, 555, 800 A.2d 915, 921 (N.J.Super.Ct.Chanc.Div.2002)). Procedural unconscionability refers to unfairness in the formation of the contract, and may.be shown by “‘a variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.’” Muhammad v. Cty. Bank of Rehoboth Beach, Del., 189 N.J. 1, 912 A.2d 88, 96 (2006) (quoting Sitogum, 800 A.2d at 921).

The Court first disposes of the argument, to the extent Plaintiffs raise it, that Defendant’s Warranty is procedurally unconscionable. Plaintiffs’ bare assertion is unaccompanied by any argument or support. (See PI. Br. at 9) Moreover, the only allegation in the Complaint suggesting unfairness in the formation of the contract is the general statement that the bargaining power between Plaintiffs and Defendant “was grossly unequal.” (See Compl. ¶ 53.) Of course, there is a disparity in bargaining power in nearly all consumer contracts executed between a purchaser and a manufacturer, and Plaintiffs’ conclusory assertion is by itself insufficient to render a contract unconscionable. See Brennan v. CIGNA Corp., 282 Fed.Appx. 132, 136 (3d Cir.2008) (“More than a disparity in bargaining power is needed to show than an arbitration agreement between an employer and its employee was not entered into willingly”); Skeen v. BMW of N. Am., LLC, No. 13-1531, 2014 WL 283628, at *13 (D.N.J. Jan. 24, 2014) (noting that pre-printed contract of adhesion is not per se unconscionable); Delta Funding Corp., 189 N.J. 28, 912 A.2d 104, 111 (2006) (noting that arbitration agreement in consumer contract with Delta contained some level of procedural unconscionability but “does not, by itself, render the arbitration agreement unenforceable”); see also Alban v. BMW of N. Am., No. 09-5398, 2011 WL 900114, at *9 (D.N.J. Mar. 15, 2011) (rejecting plaintiffs “bare-bones allegations that he ‘had no meaningful choice in determining’ ” the terms of warranty “and that a ‘gross disparity in bargaining power existed’ between him and BMW” because they were “ ‘no more than conclusions [that] are not entitled to the assumption of truth.’ ” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009))). As there are no additional allegations of a defect during contract formation, Plaintiffs’ claim for procedural unconscion-ability must be dismissed.

The facts are also insufficient to support a reasonable inference of substantive un-conscionability. Plaintiffs argue that the contract is substantively unconscionable because Defendant “knew the HVACs were defective when they sold them,” and “manipulated the terms of the warranty” to avoid repair costs. (PI. Br. at 9.) To support the allegation that Defendant had notice of the particular defect, Plaintiffs point to the fact that they submitted claims under their warranty; that numerous consumers has posted in a public online forum about the failure of Defendant’s evaporator coils; and that Defendant later switched to corrosion-resistant aluminum coils. (Id.)

None of these facts, however, raise an inference that Defendant had knowledge of the defect at the time they issued the warranties to Plaintiffs. The two dozen consumer reviews that were published in a public forum online were all posted between June 2012 and October 2012, and Defendant began to use coils made out of aluminum in September of 2013. Plaintiffs, however, bought their HVAC systems in 2010 and 2011, well before the date of the first posted consumer review in June of 2012. Additionally, Argabright and Monta-no’s units did not begin failing until 2014 and 2015, respectively, at which point they notified Rheem. Likewise, Fecht’s unit did not begin to have problems until 2014. The factual support is insufficient to raise a plausible claim as to Defendant’s knowledge because at most, it suggests that Defendant was made aware of the defect in June 2012, after the warranties were issued in this case. See McQueen v. BMW of N. Am., LLC, No. 12-06674, 2014 WL 656619, at *4 (D.N.J. Feb. 20, 2014) (ten customer complaints were insufficient to show that defendant had knowledge of the specific defect alleged); Spera v. Samsung Elecs. Am., Inc., No. 12-5412, 2014 WL 1334256, at *6 (D.N.J. Apr. 2, 2014) (dismissing consumer fraud because plaintiffs failed to state sufficient facts to show that defendant knew of alleged defects prior to sale); Weske v. Samsung Elecs. Am., Inc., 2012 WL 833003, at *5 (D.N.J. Mar. 12, 2012) (allegations showed that consumers complained of product after the plaintiffs had already purchased the product and thus did not establish defendants’ knowledge and concealment of the defect at the time of plaintiffs’ purchase); Suddreth v. Mercedes-Benz, No. 10-5130, 2011 WL 5240965, at *3 (D.N.J. Oct. 31, 2011) (dismissing claim of substantive unconsciona-bility because plaintiffs failed to plead sufficient facts showing that defendant knew of defect in car at the time they issued warranty).

Plaintiffs’ claim also fails because “a finding of unconscionability cannot be premised solely upon allegations that Defendant knew that a defect in the product might arise,” and created a limited warranty designed to avoid fixing the defect. Suddreth, 2011 WL 5240965, at *3. New Jersey courts have long held that such warranties are not so grossly unfair that they would be considered substantively unconscionable. See, e.g., T.J. McDermott Transp. Co. v. Cummins, Inc., 2015 WL 1119475, at *9 (D.N.J. Mar. 11, 2015) (fact that defendants knew of alleged defects when they made the warranties did not establish substantive unconscionability); Nelson v. Nissan N. Am., Inc., 894 F.Supp.2d 558, 565-66 (D.N.J.2012) (allegation that defendant car manufacturer “knew with certainty” that transmission would fail just after expiration of the warranty period did not make warranty substantively unconscionable); Alban v. BMW of N. Am., No. 09-5398, 2011 WL 900114, at *9 (D.N.J. Mar. 15, 2011) (allegations that defendant knew defect would arise after expiration of the warranty “do not indicate that the time and mileage limitation clause in the warranty was unconscionable); Henderson v. Volvo Cars of N. Am., LLC, No. 09-4146, 2010 WL 2925913, at *9 (D.N.J. July 1, 2010) (manufacturer’s mere knowledge that a part will fail after expiration of warranty period “does not alone make [a] time/mileage limitation unconscionable.”).

The plaintiffs in the above cases raised claims of substantive unconscionability, alleging that defendant knew of the defect at the time they issued the warranty; knew when the defect'would manifest; and “manipulated” the warranty’s time period so as to avoid liability. Such conduct, the courts held, did not make a warranty substantively unconscionable. As one court explained, this is-because a manufacturer “ ‘must predict rates of failure of particular parts in order to price warranties,’ ” and “ ‘[a] rule that would make failure of a part actionable based on such “knowledge” would render meaningless’ ” the limitations built into a warranty’s coverage. T.J. McDermott, No. 14-4209, 2015 WL 1119475, at *9 (D.N.J. Mar. 11, 2015) (quoting Abraham v. Volkswagen of Am., Inc., 795 F.2d 238, 250 (2d Cir.1986)); see also Majdipour v. Jaguar Land Rover N. Am., LLC., No. 12-7849, 2013 WL 5574626, at *20 (D.N.J. Oct. 9, 2013) (explaining same). Although in the above cases, the product defects occurred after the expiration of the warranty period in the above cases, the reasoning applies with equal force here. Plaintiffs’ allegation that Defendant knew of a latent defect at the time it issued its Warranty, even if true, does not render the warranty unconscionable. As a manufacturer, Defendant is within its right to create a limited remedy that minimizes its costs and obligations based on its prediction of the rate of failure of particular parts.

Accordingly, for all the reasons above, the Court will dismiss Plaintiffs’ claim for breach of express warranty. The claim will be dismissed without prejudice.

B. Breach of Implied Warranty of Merchantability (Count II)

An implied warranty of merchantability “protect[s] buyers from loss where the goods purchased are below commercial standards or are unfit for the buyer’s purpose,” Crozier v. Johnson & Johnson Consumer Co., 901 F.Supp.2d 494, 509 (D.N.J.2012) (quoting Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir.1992)), and “simply means that the thing sold is reasonably fit for the general purpose for which it is manufactured and sold.” Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 76 (1960); see also Kuzian v. Electrolux Home Prods., Inc., 937 F.Supp.2d 599, 612 (D.N.J.2013) (citing N.J.S.A. § 12A:2-314). “ ‘Merchantability does not mean that the goods are exactly as the buyer expected, but rather that the goods satisfy a minimum level of quality.’ ” Nelson, 894 F.Supp.2d 558, 566 (citation omitted); see also Lieberson v. Johnson & Johnson Consumer Cos., 865 F.Supp.2d 529, 542 (D.N.J.2011). In order for the implied warranty of merchantability to be breached, the product at issue must have been defective or not fit for the general purpose for which it was manufactured and sold. See Altronics, 957 F.2d at 1105; Ferrari v. Am. Honda Motor Co., 2009 WL 211702, at *3 (N.J.Super.Ct.App.Div.2009).

Plaintiffs have stated a plausible claim for breach of the implied warranty of merchantability. They allege that Rheem sold them HVAC systems that did not cool their home properly, and that they purchased these systems for the specific purpose of cooling their homes. Plaintiffs further allege that they began experiencing problems with Defendant’s products in the course of normal use, all within four years of purchase and within the warranty period. Plaintiff Argabright, for example, purchased hié HVAC unit in September of 2011 and asserts that it began having problems in July of 2014, less than three years later. Plaintiff Fecht installed her Rheem HVAC unit sometime in 2010, and noticed a problem in June 2014. Likewise, Plaintiff Montano purchased a Rheem HVAC in October of 2011 and discovered a problem in March 2015, approximately three and a half years later. The Court finds these allegations sufficient to state a claim for a breach of the implied warranty of merchantability. See, e.g., Kuzian, 937 F.Supp.2d at 603 (plaintiffs adequately stated claims for breach of implied warranties of merchantability and fitness where they alleged that defendant sold them refrigerators that did not produce ice properly and they purchased the refrigerators “for the specific, purpose of ice making”).

Contrary to Defendant’s contention, the fact that the HVAC units “functioned 3-4 years without experiencing any issues,” (Def. Br. at 19), does not mandate dismissal of this claim. True, “there is no duty on the,part of a manufacturer to furnish tools which will not wear out,” Jakubowski v. Minn. Minn. Min. & Mfg., 42 N.J. 177, 199 A.2d 826, 831 (1964), the fact that the evaporator coils in each .of Plaintiffs’ HVAC units malfunctioned well within the warranty period raises an inference that the expected useful life of the Defendant’s product had not been exhausted when it stopped working. This particular factual allegation distinguishes the present case from Suddreth v. Mercedes-Benz, LLC, the only case which Defendant cites for support. (See Def. Br. at 19.) In Suddreth, the court rejected a breach of implied merchantability claim against a car manufacturer, noting that plaintiff did not experience problems with the car for several years. Importantly, the defect manifested itself outside of the four-year express and implied warranty period, and Plaintiffs had provided no “further support as to how the length of time here fell so below industry standards as to render the product unmer-chantable.” 2011 WL 5240966, at *5.

By contrast, Plaintiffs in this case allege that Defendant’s products consistently failed due to defective coils even before the express and implied warranties ran out. Defendant’s Warranty explicitly limits any implied warranties to the same time period applicable to the express Warranty. (See Ex. A to Def. Br. (“ANY IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR.PURPOSE, SHALL NOT EXTEND BEYOND THE APPLICABLE WARRANTY PERIODS SPECIFIED IN THIS LIMITED WARRANTY.”).) The warranty period was between -five and ten years, but Plaintiffs each allege that the HVAC units began failing and required repairs and replacement of parts within four years of purchase. Reading these allegations in Plaintiffs’ favor, as the Court must at this stage in the litigation, the Court finds that Plaintiffs have established a plausible claim that Defendant’s HVAC units suffered from a latent defect and fell “below commercial standards.” Crozier, 901 F.Supp.2d at 509.

Although Argabright and Montano have stated plausible claims for breach of the implied warranty of merchantability, the Court agrees with Defendant that Fecht’s claim is time-barred. Under the New Jersey Uniform Commercial Code, any action for breach of contract for sale “must be commenced within four years after the cause of action has accrued.” N.J.S.A. § 12A:2-725(1), Moreover, “[a] cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach,” and “[a] breach of warranty occurs when tender of delivery is made.” N.J.S.A. § 12A:2-725(2). Because Fecht purchased and installed her Rheem unit sometime in 2010, and her Complaint would have had to have been filed in 2014 in order to be timely.

Plaintiffs argue that the “future performance” exception to this rule should apply. When a warranty of “future performance” is involved, the four-year limitations period does not begin to run until the time the defect was or should have been discovered. N.J.S.A. § 12A:2-725(2) (“A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” (emphasis added)); see Comm’rs of Fire Dist. No. 9 v. Am. La France, 176 N.J.Super. 566, 424 A.2d 441, 444 (N.J.Super.Ct.App.Div.1980).

Under New Jersey law, a warranty “to repair any product defect that occurs during a warranty period” constitutes a warranty of “future performance,” and a cause of action therefore does not accrue until the breach is or should have been discovered. Poli v. DaimlerChrysler Corp., 349 N.J.Super. 169, 793 A.2d 104, 105 (N.J.Super.Ct.App.Div.2002); see also Docteroff v. Barra Corp. of Am., Inc., 282 282 N.J.Super. 230, 659 A.2d 948 (N.J.App.Div.1995) (seller’s agreement to repair or replace defects that become evident during a specified period of time “cannot be characterized as a mere representation of the product’s condition at the time of delivery rather than its performance at a future time.” (internal quotations and citation omitted)).

Plaintiffs may very well be correct that the express warranty in this case, which to repair or replace any part of the product “which fails in normal use” within a five- or ten-year period, is a warranty of “future performance.” But “implied warranties of merchantability and fitness for a particular purpose 'do not explicitly extend to the future performance of the goods.’ ” ACH Enters. 1 LLC v. Viking Yacht Co., 817 F.Supp.2d 465, 471 (D.N.J.2011) (quoting S. Jersey Gas Co. v. Mueller Co., Ltd., No. 09-4194, 2010 WL 1742542, at *9 n. 2 (D.N.J. Apr. 27, 2010)). “Implied warranties, by their very nature, cannot extend to future performance because such an extension must be explicit and an implied warranty cannot explicitly state anything.” Travelers Indem. Co. v. Dammann & Co., Inc., 592 F.Supp.2d 752, 765 (D.N.J.2008); see also Atl. Health Sys. v. Cummins Inc., No. 08-3194, 2010 WL 5252018 at *5-6 (D.N.J. Dec. 17, 2010) (stating same); see generally Standard Alliance Indus. v. Black Clawson Co., 587 F.2d 813, 820 (6th Cir.1978) (“Most courts have been very harsh in determining whether a warranty explicitly extends to future performance .... [M]ost express warranties cannot meet the test and no implied warranties can since, by their very nature, they never 'explicitly extend to future performance.’ ”).

Thus, “[a] cause of action for breach of implied warranty accrues when delivery of the product is made, regardless of the purchaser’s lack of knowledge.” Moulton v. LG Elecs. USA, Inc., No. 11-4073, 2012 WL 3598760, at *3 (D.N.J. Aug. 21, 2012). Because Fecht’s claim for breach of implied warranty of merchantability accrued sometime in 2010, and this Complaint was not filed until July of 2015, her claim is time-barred. Accordingly, the Court will grant Defendant’s motion to dismiss Count II with respect to Fecht.

C. Violation of the Magnuson-Moss Warranty Act (Count V)

The Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301 et seq., provides a private right of action in federal court for consumers who are “damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation ... under a written warranty, [or] implied warranty.” 15 U.S.C. § 2310(d)(1). Claims under the MMWA depend upon the disposition of the underlying state law warranty claims. See Johansson v. Cent. Garden & Pet Co., 804 F.Supp.2d 257, 265 (D.N.J.2011) (“A claim under the MMWA relies on the underlying state law claim.”) Thus, if there exists no actionable warranty claim, there can be no violation of the MMWA. See id. (dismissing MMWA claims based on breach of implied warranty because breach of implied warranty claims had been dismissed for lack of privity); In re: Ford Motor Co. Ignition Switch Prods. Liability Litig., No. 96-1814, 2001 WL 1266317, at *24 (D.N.J. Sept. 30, 1997) (Simandle, J.) (dismissing MMWA claims against defendant because all express and implied warranty claims against defendant had been dismissed).

Having failed to state a viable state law claim for breach of express warranty, Plaintiffs’ derivative MMWA claim must also be dismissed. See Cooper v. Samsung Elecs. Am., Inc., 374 Fed.Appx. 250, 254 (3d Cir.2010) (affirming dismissal of Magnuson-Moss Act elaims that were based on state law breach of warranty claims that had been dismissed); Demorato v. Carver Boat Corps., No. 06-240, 2007 WL 1456207, at *8 (D.N.J.2007) (“Breach of warranty actions that fail understate law will also fail under the Magnuson-Moss Act.”). Since Plaintiffs have stated a plausible state law claim for breach of the implied warranty of merchantability, and Defendant has offered no viable argument for dismissal of the related MMWA claim, the Court will, at this time, permit the MMWA claim based on breach of the implied warranty of merchantability to proceed. See In re Shop-Vac Mktg. & Sales Practices Litig., 2014 WL 3557189, at *10 (M.D.Pa. July 17, 2014).

D. Fraudulent Concealment and Negligent Misrepresentation (Counts III and IV)

Defendant argues that the claims for fraudulent concealment (Count III) and negligent misrepresentation (Count IV) have not been pleaded with the sufficient particularity required for fraud claims under Fed. R. Civ. P. 9(b); that there is no fiduciary duty between Defendant and Plaintiffs to support an omission-based negligent misrepresentation claim; and that these claims are barred by the economic loss rule. Because the Court agrees that the presently-alleged grounds are insufficient to show that Defendant knowingly or negligently misrepresented or omitted a material fact about a possible defect in their HVAC units, the Court will grant this portion of Defendant’s motion and dismiss Counts III and IV without prejudice.

1. Fraudulent Concealment

Plaintiffs argue that Defendant is liable for fraudulent concealment under New Jersey law because it knew of a possible defect in its HVAC units and failed to disclose it at the time of purchase, and affirmatively misrepresented, through advertising and in its Warranty, that its HVAC units would be long-lasting, durable, and free of any defects in quality and workmanship. (PI. Br. at 17-20.)

“[I]n its most general and fundamental conception,” fraud “consists of the obtaining of an undue advantage by means of some act or omission that is unconscientious or a violation of good faith.” Jewish Ctr. of Sussex Cty. v. Whale, 86 N.J. 619, 432 A.2d 521, 524 (1981). To prove fraudulent concealment or misrepresentation under New Jersey law, a plaintiff must establish five elements: “(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.” Gennari v. Weichert Co. Realtors, 148 N.J. 582, 691 A.2d 350, 367 (1997); see also Weske v. Samsung Elecs., Am., Inc., 42 F.Supp.3d 599, 607 (D.N.J.2014) (listing same five elements). These factors must be pleaded with particularity under Rule 9(b) to place the defendant on notice of the precise misconduct with which it is charged. See Byrnes v. DeBolt Transfer, Inc., 741 F.2d 620, 626 (3d Cir.1984) (‘We agree, of course, that fraud, and thus fraudulent concealment, must be pleaded with particularity.”); Fuqua v. Bristol-Myers Squibb Co., 926 F.Supp.2d 538, 549 (D.N.J.2013).

The Court agrees with Defendant that this claim must be dismissed. A claim for fraudulent concealment based on either an affirmative misrepresentation or an omission requires showing that defendant had actual knowledge of the falsity of a fact, or knowledge of the omitted fact. Here, Plaintiffs have not pleaded with sufficient particularity that Defendant knew about the alleged defect in its product when Plaintiffs purchased it. The Court has already explained in detail why the allegations at most could suggest that Defendant were alerted to a possible defect in 2012, see supra Part IV.A.3, and will not repeat that explanation here. The Complaint contains no facts to support that Defendant was likely aware of a problem before then, and since Plaintiffs purchased their HVAC units in 2010 and 2011, it fails to support that Defendant knowingly misrepresented or suppressed a material fact about the quality and longevity of its product to Plaintiffs at the time of sale. See Stevenson v. Mazda Motor of Am., Inc., No. 14-5250, 2015 WL 3487756, at *8-9 (D.N.J. June 2, 2015) (dismissing fraudulent concealment claim because allegation that defendant knew of defect in one particular model at the time of sale based on knowledge of defect in other models was speculative and did not meet heightened pleading standard); Spera v. Samsung Elecs. Am., Inc., No. 12-5412, 2014 WL 1334256, at *6 (D.N.J. Apr. 2, 2014) (dismissing consumer fraud claim because plaintiffs failed to state sufficient facts to show that defendant knew of alleged defects prior to sale); Weske v. Samsung Elecs. Am., Inc., 2012 WL 833003, at *5 (D.N.J. Mar. 12, 2012) (allegations showed that consumers complained of product after the plaintiffs had already purchased the product and thus did not establish defendants’ knowledge and concealment of the defect at the time of plaintiffs’ purchase).

In addition, with respect to Plaintiffs’ allegation that Defendant was aware of and failed to disclose a potential defect in their HVAC units at the time of Plaintiffs’ purchase, that claim of fraudulent omission fails as a matter of law. “[W]here a claim for fraud is based on silence or concealment, New Jersey courts will not imply a duty to disclose, unless such disclosure is necessary to make a previous statement true or the parties share. a ‘special relationship.’ ” Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1185 (3d Cir.1993). “Recovery for fraudulent concealment requires proof that [the] defendant was legally obligated to disclose [the information].” Id. (emphasis added) (citing Viviano v. CBS, Inc., 251 N.J.Super. 113, 597 A.2d 543, 548 (N.J.Super.Ct.App.Div.1991)); see also Berman v. Gurwicz, 189 N.J.Super. 89, 458 A.2d 1311, 1313-14 (N.J.Super.Ct.Chanc.Div.1981) (“If either party to a transaction conceals some fact which is material, which is within his own knowledge, and which it is his duty to disclose, he is guilty of actual fraud.” (internal quotations and citation omitted)).

In New Jersey, such a duty to disclose arises: (1) when there is a fiduciary relationship between the parties; (2) when one party expressly reposits trust in another party, or else from the circumstances, such trust necessarily is implied; and (3) when the relationship involving the transaction is “so intrinsically fiduciary that a degree of trust and confidence is required to protect the parties,” for example, an insurance contract. Lightning Lube, 4 F.3d at 1185 (3d Cir.1993); see also Berman, 458 A.2d at 1313-14 (describing the three classes of transactions in which a duty to disclose arises). For a duty to disclose to arise, one party must “expressly repose[ ] a trust and confidence in the other; or else from the circumstances of the case, the nature of their dealings, or their position towards each other, such a trust and confidence in the particular case [must be] necessarily implied.” Berman, 458 A.2d at 1313.

Plaintiffs assert only that Defendant had knowledge of a latent defect and that Defendant had a duty to disclose “the actual quality of the Rheem HVACs and the true nature of the warranties,” (Compl. ¶¶ 114, 124), but these conclusory allegations are clearly insufficient to establish that Defendant and Plaintiffs had a special relationship giving rise to an affirmative duty to disclose. No fiduciary or implied fiduciary relationship existed between Plaintiffs and Defendant, and nothing in Plaintiffs’ Complaint suggests that Defendant “did anything to encourage plaintiffs to repose special trust or confidence in their advice, thereby inducing plaintiffs’ reliance.” Green v. G.M.C., No. A-2831-01T-5, 2003 WL 21730592, at *8 (N.J.Super.Ct.App.Div. July 10, 2003). The mere fact that Plaintiff trusted and relied on Defendant “is insufficient to show a special relationship requiring a duty to disclose.” Stevenson v. Mazda Motor of Am., Inc., No. 14-5250, 2015 WL 3487756, at *9 (D.N.J. June 2, 2015).

Because Plaintiffs have failed to state with any particularity facts showing that Defendant knew of a potential defect adversely affecting the quality and longevity of their HVAC units when they made their misrepresentations and omissions, Plaintiffs’ claim for fraudulent concealment must be dismissed, without prejudice to the right to seek a curative amendment to the Complaint.

2. Negligent Misrepresentation

Under New Jersey law, “[a] cause of action for negligent misrepresentation may exist when a party negligently provides false information.” Karu v. Feldman, 119 N.J. 135, 574 A.2d 420, 425 (1990). To prevail on a negligent misrepresentation claim, a plaintiff must prove that the defendant negligently made an incorrect statement upon which the plaintiff justifiably relied. See Alin v. Am. Honda Motor Co., Inc., No. 08-4825, 2010 WL 1372308, at *13 (D.N.J. Mar. 31, 2010); Green v. Morgan Props., 215 N.J. 431, 73 A.3d 478, 493(2013). While an act of omission may constitute a viable negligent misrepresentation claim, see S. Broward Hosp. Dist. v. MedQuist, Inc., 516 F.Supp.2d 370, 397 (D.N.J.2007), aff'd in part, 258 Fed.Appx. 466 (3d Cir.2007), a plaintiff may not bring such a claim “unless the breaching party owes an independent duty imposed by law.” Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 788 A.2d 268, 279-80 (2002); see also Henderson v. Volvo Cars of N. Am., LLC, No. 09-4146, 2010 WL 2925913, at *11 (D.N.J. July 21, 2010).

Plaintiffs’ claim for negligent misrepresentation fails for the same reasons that Plaintiffs’ fraudulent omission fails. There are no facts whatsoever to support that Defendant was negligent in 2010 and 2011 when it warranted to Plaintiffs that its HVAC units would be free from any defects. Nothing suggests, for example, that purchasers had begun to experience problems with their HVAC units prior to 2011, or that Defendant previously had issues with copper alloy evaporator coils, or had recalled other similarly designed HVAC units for refrigerant leakage. Indeed, there are no allegations at all about known or suspected problems with Defendant’s products before 2012, the year of the first consumer reviews listed in Plaintiffs’ Complaint. As Plaintiffs have “provide[d] no factual support for why Defendant[’s] behavior was negligent, or how the specifically alleged duties of care were breached,” their claim for negligent misrepresentation will be dismissed. McQueen v. BMW of N. Am., LLC, No. 12-6674, 2013 WL 4607353, at *9 (D.N.J. Aug. 29, 2013).

Additionally, an omission-based negligent misrepresentation claim, like a claim of fraudulent concealment, is unsupported on the current facts because Plaintiffs have not shown that Defendant’s relationship with Plaintiffs created a duty disclose the alleged defect. See Karu v. Feldman, 119 N.J. 135, 574 A.2d 420, 426 (1990); S. Broward Hosp. Dist., 516 F.Supp.2d at 397. Courts in this district have not hesitated to dismiss negligent misrepresentation claims by a purchaser against a manufacturer, absent allegations showing a special relationship. Nothing in the Complaint suggests the existence of an implied fiduciary duty, or that Plaintiffs “reposed special trust in [Defendant prior to purchase,” and there is ample support for dismissal. See Peruto v. TimberTech Ltd., 126 F.Supp.3d 447, 457 (D.N.J.2015) (Simandle, J.); Stevenson, 2015 WL 3487756, at *9-10 (car manufacturer had no duty to disclose alleged defect to car purchaser because “there [were] no allegations to suggest that defendant did anything that would have encouraged Plaintiff to place particular trust or confidence in it”); Coba v. Ford Motor Co., 2013 WL 244687 at *12 (D.N.J. Jan. 22, 2013) (“New Jersey Courts have found no special relationship between individual consumers and automobile manufacturers that would impose a duty to disclose on the manufacturers”); Alin v. Am. Honda Motor Co., No. 084825, 2010 WL 1372308, at *14 (D.N.J. Mar. 31, 2010) (allegations that defendant car manufacturer failed to disclose a defect during sale were “insufficient to state a claim for negligent misrepresentation by omission” because there was no fiduciary or intrinsically fiduciary duty and plaintiff did not repose a special trust in defendant when he entered into car lease); Green v. G.M.C., No. A-2831-01T-5, 2003 WL 21730592, at *8 (N.J.Super.Ct.App.Div. July 10, 2003) (car manufacturer similarly had no duty to disclose a defect to purchasers of its cars).

Accordingly, the Court will dismiss without prejudice Plaintiffs’ claim of negligent misrepresentation.

E. Statutory Claims (Counts VII, VIII, and IX)

The New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. § 56:8-1 et seq., the Arizona Consumer Fraud Act (“ACFA”), A.R.S. § 44-1521 et seq., and New York General Business Law (“NYGBL”) § 349, all prohibit deceptive practices in connection with the sale or advertisement of consumer goods. See, e.g., Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 390 A.2d 566, 569 (1978) (noting that NJCFA is designed to address “sharp practices and dealings in the marketing of merchandise ... whereby the consumer could be victimized by being lured into a purchase through fraudulent, deceptive or other similar kind of selling of advertising practices.”); 349 A.R.S. § 44-1522(A) (prohibiting “deception, deceptive or unfair act or practice” in connection with the sale or advertisement of merchandise); Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892, 897 (1999) (“Generally, claims under [N.Y. GBL § 349] are available to an individual consumer who falls victim to misrepresentations made by a seller of consumer goods through false or misleading advertising.”).

“The capacity to mislead is the prime ingredient of all types of consumer fraud.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454, 462 (1994); Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372, 371 A.2d 13, 16 (1977). Thus, to determine whether a defendant’s advertisements and marketing statements violated the consumer fraud statute, courts examine “the overall impression created by an advertisement” to decide whether it is “misleading and deceptive to an ordinary reader.” Miller v. Am. Family Publishers, 284 N.J.Super. 67, 663 A.2d 643, 654 (N.J.Super.Ct.Chanc.Div.1995); see also Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85. N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741, 745 (1995) (inquiry is limited to whether representations or omissions are “likely to mislead a reasonable consumer acting reasonably under the circumstances.”).

False promises, misrepresentations, and concealment or omission of material facts all constitute deceptive practices under these statutes. But importantly, unlike the common law claim of fraudulent concealment, a defendant’s knowledge or belief of the falsity of a statement, or intent to deceive, are not required to establish a violation under the New Jersey, New York, and Arizona consumer fraud statutes.

In addition to identifying the deceptive practice or statement, the three consumer fraud statutes require the plaintiff to establish that he or she suffered an injury that was caused by the misrepresentation. The NJCFA, for example, requires a showing of “1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss.” Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 964 A.2d 741, 749 (2009). Likewise, to prove a claim under NYGBL § 349, a plaintiff needs show that a defendant engaged in “an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof.” Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 704 N.Y.S.2d 177, 725 N.E. 2d 598, 604 (1999) (internal quotations and citation omitted); see also Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 944 N.Y.S.2d 452, 967 N.E.2d 675, 675 (2012)). Similarly, to succeed on a claim of consumer fraud under the ACFA, a plaintiff “must show (1) a false promise or misrepresentation made in connection with the sale or advertisement of ‘merchandise,’ and (2) consequent and proximate injury resulting from the misrepresentation.” Watts v. Medicis Pharm. Corp., 239 Ariz. 19, 365 P.3d 944, 953 (2016); see also Kuehn v. Stanley, 208 Ariz. 124, 91 P.3d 346, 351 (Ariz.Ct.App.2004).

The claims under the NJCFA and the ACFA are subject to the heightened pleading standard of Fed. R. Civ. P. 9(b), which requires particularized pleading for the conduct underlying fraud claims. See, e.g., Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir.2007) (noting that “[t]he stringent pleading restrictions of Rule 9(b)” apply to fraud claims under the NJCFA); Silving v. Wells Fargo Bank, NA, 800 F.Supp.2d 1055, 1075 (D.Ariz.2011). “This requires a plaintiff to plead the date, time, and place of the alleged fraud, or otherwise inject precision into the allegations by some alternative means.” Grant v. Turner, 605 Fed.Appx. 107, 111 (3d Cir.2012), cert. denied, — U.S. —, 133 S.Ct. 2770, 186 L.Ed.2d 219 (2013); see also Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 8