OPINION
Plaintiffs Mark Maniscalco (“Maniscalco”) and Walter Huryk (“Huryk”) (“Plaintiffs”), individually, and on behalf of a putative class of consumers, bring various claims relating to Plaintiffs’ purchases of Defendant Brother International Corporation’s (“BIC” or “Defendant”) Multi-Function Center line of all-in-one devices (“MFC machines”). Presently before the Court is BIC’s second motion to dismiss Counts I, II, and III of the Third Amended Complaint (“TAC”), insofar as they are predicated on the alleged “Machine Error 41” (“ME41”) defect. Specifically, Count I seeks declaratory judgment under the New Jersey Consumer Fraud Act (“CFA”), N.J.S.A. § 56:8-2; Count II seeks damages and equitablе relief under the CFA; and Count III alleges unjust enrichment.
*497 For the following reasons, BIC’s motion to dismiss is granted in part, and denied in part; the motion to dismiss is denied with respect to Count II and granted with respect to Counts I and III. With respect to Plaintiff Huryk, Count III is dismissed without prejudice.
I. Factual Background
BIC’s motion only relates to claims arising out of the ME41 print-head defect; thus, Plaintiffs’ other allegations predicated on using BIC print cartridges only and the ink-wasting characteristics of BIC machines need not be considered here. TAC at ¶¶ 4-6. Since Defendant moves to dismiss Plaintiffs’ claims, in part, for lack of standing pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the following account of the facts assumes all of Plaintiffs’ allegations to be true.
BIC distributes MFC machines, which function as printers, fax machines, scanners, and copiers, TAC, ¶ 1. Plaintiffs contend, among other things, that their MFC machines contained a defect “referred to as the ‘ME41 defect’ because most model MFC machines display the error code, ‘Machine Error 41’ on their LCD screens when their print heads failed.” Id. at ¶ 7. The TAC alleges that BIC knew of the defect since 2001: “[ijnternal documents reveal that BIC has known, since at least 2001, that the ME41 defect was causing premature print-head failure in MFC machines.” Id. at ¶ 53. Further, Plaintiffs allege that BIC then acted by “intentionally concealing and failing to disclose that information [the ME41 defect] to prospective purchasers; and ... unconscionably limiting warranty coverage for print-head failure caused by the ME41 defect[.]” TAC ¶ 112. In or near February 2005, BIC “implemented a limited extended warranty ... which extends the warranty coverage on some MFC print heads that fail as a result of the ME41 defect from 90 days to 24 months from the date of purchase or 30 months from the date on the serial number[.]” Id. at ¶ 57. Both parties agree that Plaintiffs did get the benefit of the extended warranty. Around that time, BIC sent an email broadcast and posted an announcement on its website to inform consumers of the extended warranty. Id. at ¶ 57, 59. However, Plaintiffs claim that while taking these actions, BIC purposely downplayed the true “nature, scope, and extent of [the] ME41 [defect].” Id. at ¶ 61. Plaintiffs suggest that BIC “has made no efforts to notify consumers of the existence of that defect — including any mention on its website” other than the 2005 Report. Id. at ¶ 35. Further, Plaintiffs allege that BIC has not “promptly” offered repairs to consumers, but rather “blames the consumer, claiming that it was their use of non-OEM ink that caused the problem.” Id. at ¶ 36. Consequently, Plaintiffs allege that consumers “were forced to replace the defective print heads (or the entire MFC machine) at their own expense.” Id. at ¶ 60.
Plaintiff Walter Huryk, a South Carolina resident, purchased his 3220c MFC machine on December 11, 2003, TAC ¶ 88, and experienced a “Machine Error 41” problem with his MFC machine around March 2007, Id. at ¶ 90. Plaintiff Maniscalco, a California resident, purchased his MFC machine from Office Depot on June 28, 2004 and experienced a “Machine Error 41” defect in May 2007. See Maniscalco Interrog. No. 1; Micheletti Cert. ¶ 12 1 *498 Both Plaintiffs allege they were forced to replаce their MFC machines. Id. at ¶¶ 87, 93.
Plaintiffs filed suit in October 2006, filed a Second Amended Complaint in October 2007, and filed a Third Amended Complaint in July 2008.
II. Standard Of Review
BIC suggests that Plaintiffs’ claims in the TAC are too vague and conclusory in nature to justify Plaintiffs’ claims or standing. Therefore, it is important to elaborate on the standard for reviewing the sufficiency of a complaint. “[T]he standard is the same when considering a facial attack under Rule 12(b)(1) or a motion to dismiss for failure to state a claim under Rule 12(b)(6).”
Petrusha v. Gannon University,
In
Phillips v. County of Allegheny,
Fed.R.Civ.P. 8(a)(2) requires a “showing” that the plaintiff is entitled to relief:
The [Twombly ] Court explained that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” [Bell Atlantic Corp. v. Twombly,550 U.S. 544 ,127 S.Ct. 1955 ,] 1965 n. 3,167 L.Ed.2d 929 [(2007)]. Later, the Court referred to “the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’ ” Id. at 1966. The Court further explained that a complaint’s “[fjactual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965 & n. 3.
Id. at 231-32. Because a “showing” rather than a bare assertion is required, Twombly instructs “that a situation may arise where, at some point, the factual detail in a complaint is so undeveloped that it does not prоvide a defendant the type of notice of claim which is contemplated by Rule 8.” Id. at 232 (citation omitted) (emphasis added). Further, “[w]e caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice,’ but also the ‘grounds’ on which the claim *499 rests.” Id. (citation omitted). However, the Third Circuit further cautioned that, in Twombly’s discussion, the concept of a “showing” “requires only notice of a claim and its grounds,” as distinguished from “a pleader’s bare averment that he wants relief and is entitled to it.” Id. at 234 (internal quotations and citation omitted).
The Third Circuit summarized:
The 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. [Bell Atlantic Corp. v. Twombly,550 U.S. 544 ,127 S.Ct. 1955 , 1965,167 L.Ed.2d 929 (2007).] 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. Id.
Id. Although only notice of a claim and its grounds are required to survive a motion to dismiss, a complaint must have “enough factual matter (taken as true) to suggest” the elements of the clаim.
III. Plaintiffs’ ME41 Claim Under The CFA
BIC argues that the TAC fails to state a claim under the CFA with respect to the “Machine Error 41” defect.
2
“To state a cause of action under the CFA, a plaintiff must allege: (1) an unlawful practice by the defendants; (2) an ascertainable loss by plaintiff; and (3) a causal nexus between the first two elements-defendants’ allegedly unlawful behavior and the plaintiffs ascertainable loss.”
Parker v. Howmedica Osteonics Corp.,
No. 07-02400,
A. Unlawful Conduct
BIC contends that Plaintiffs fail to sufficiently allege the first element of a CFA claim, an unlawful practice. “The NJCFA creates three categories of unlawful practices: affirmative acts, knowing omissions, and violations of state regulations.”
Vukovich v. Haifa,
No. 03-737,
The act, use or employment by any person of any unconscionable commercial practice ... or thе knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate ... is declared to be an unlawful practice.
N.J.S.A. § 56:8-2 (emphasis added). “[W]hen the alleged consumer fraud consists of an omission, a plaintiff must show that the defendant acted with knowledge, thereby making intent an
essential element
of the fraud.”
Vukovich,
2007 WL
*500
655597 at *9 (citing
Cox,
Further, “[t]he pleading requirements of Rule 9(b) apply to ... NJCFA claims as well as ... common law fraud claims.”
Slim CD, Inc. v. Heartland Payment Sys.,
No. 06-2256,
Pursuant to Rule 9(b), a plaintiff alleging fraud must state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the “precise misconduct with which [it is] charged.” [Lum v. Bank of America,361 F.3d 217 , 223-24 (3d Cir.2004) ]. To satisfy this standard, the plaintiff must plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation. See id. at 224.
Frederico,
BIC first argues that Plaintiffs fail to sufficiently allege the requisite knowledge and intent for a “knowing omission” because the TAC relies on mere speculation and conclusory statements. The Court disagrees. Plaintiffs do sufficiently allege, generally, that BIC acted with knowledge and intent by:
c. Marketing, advertising, and selling machines that they know are likely to fail due to the ME41 defect before their expected useful life of five years оr 50,-000 pages of printed material, while intentionally concealing and failing to disclose information to prospective purchasers; and
d. Unconscionably limiting warranty coverage for a print-head failure caused by the ME41 defect, despite BIC’s knowledge that the ME41 defect would cause print heads in MFC machines to fail after the warranty period expired, but before the projected useful life of the MFC machines ...
TAC ¶ 112 (emphasis added). Further, Plaintiffs specifically allege that BIC knew of the ME41 defect before Plaintiffs purchased their ME41 machines: “[i]nternal documents reveal that BIC has known, since at least 2001, that the ME41 defect was causing premature print-head failure in MFC machines.” Id. at ¶ 54. Plaintiffs bоth purchased their MFC machines after 2001, TAC ¶¶ 83, 88, and taking Plaintiffs allegations as true, Plaintiffs have sufficiently plead the requisite intent and knowledge.
Next, BIC argues that the existence of a warranty, coupled with the product lasting beyond the warranty period, exempts it from the duty to disclose the fact that the MFC machine may fail beyond the warranty period.
*501
Currently, New Jersey allows a CFA defense in circumstances where a warranty exists and the product performs beyond that warranty period.
Perkins v. DaimlerChrysler Corp.,
[W]e agree in principle with the trial judge’s determination that-absent those circumstances in whiсh safety concerns might be implicated, as to which we offer no view-the failure of a manufacturer or seller to advise a purchaser that a part may breakdown or require repair after the expiration of the warranty period cannot constitute a violation of the CFA.
Id.
In
Perkins,
the purchaser of a Jeep alleged a violation of the CFA “because defendant did not reveal that the vehicle was manufactured with a tubular exhaust manifold allegedly susceptible to cracking and premature failing, and unlikely to last for 250,000 miles, which, plaintiff claims without suрport, is the industry standard for such a part.”
Id.
at 103,
To interpret the CFA, beyond its present scope, to cover claims that the component part of a product, which has lasted through the warranty period, may eventually fail, would be tantamount to rewriting that part of contract which defined the length and scope of the warranty period ... [which] would also have a tendency to extend those warranty programs for the entire life of the vehicle ...
Id.
at 113,
However, BIC’s reliance on the warranty defense is misplaced in the present case as is the alleged act of concealment on which Plaintiffs base their claims. Without addressing the general warranty defense espoused by
Perkins,
the present case requires a somewhat different analysis based upon the extant facts. In
Perkins
the allegedly substandard car part never actually failed,
Id.
at 103,
The Court further notes that New Jersey courts have not provided clear precedent for the specific facts alleged in the present case
4
and so the Court must anticipate how New Jersey would rule on such alleged facts.
See, e.g., Cetel v. Kirwan Financial Group, Inc.,
B. Ascertainable Loss
BIC also contends that the named Plaintiffs fail to sufficiently allege the second element of a CFA claim, an ascertainable loss. 7 BIC first maintains *503 that Plaintiffs’ allegations lack sufficient specificity because they merely state in a conclusory manner that Plaintiffs “suffered an ascertainable loss and actual injury.” TAC ¶¶ 87, 93. Although the loss must be ascertainable, no special specificity with regard to pleading ascertainable loss is required. 8 Nevertheless, Plaintiffs do allege specific loss by including the cost of replacing their MFC machines. Id. at ¶¶ 87, 91. Plaintiffs’ repair or replacement cost was not covered by BIC’s extended warranty because the parties do not dispute that Plaintiffs did not, in fact, get the benefit of the warranty. Further, neither Plaintiff could have exercised the warranty protection, since both Plaintiffs experienced the ME41 defect after the extended warranty period had expired: Plaintiff Huryk purchased his Machine on December 11, 2003, TAC ¶ 88, and experienced a “Machine Error 41” defect around March 2007, Id. at ¶ 90, and Plaintiff Maniscalco purchased his MFC machine on June 28, 2004 and experienced a “Machine Error 41” defect in May 2007.
BIC also relies on
Perkins
for the proposition that where a product outlasts its warranty period, there can be no ascertainable loss. BIC’s reliance is misplaced.
Perkins
specifically distinguishes between the element of ascertainable loss and the warranty defense and even suggested that the trial judge’s finding of no ascertainable loss was premature.
C. Causal Nexus
Finally, BIC cоntends that Plaintiffs fail to sufficiently allege a causal connection between the purported unlawful conduct and the asserted ascertainable loss. BIC again relies on the existence of the warranty to immunize itself from any connection between the unlawful act and the harm and, as discussed supra at III.A., BIC’s contention is without merit.
Further, BIC argues that Plaintiffs must
prove
a connection in order to succeed and that they fail to do so. However, to survive a motion to dismiss, Plaintiffs are only required to put forth “enough factual matter (taken as true) to suggest” the elements of the claim.
Phillips,
For the foregoing reasons, BIC’s motion to dismiss Plaintiffs’ ME41 CFA claim is denied.
IV. ME41 Declaratory Judgment
BIC maintains that Plaintiffs are not entitled to a declaratory judgment. The Declaratory Judgment Act provides: “In a case of
actual controversy
within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading,
may declare the rights and other legal relations
of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). The “actual controversy” requirement refers to the case or controversy requirement of Article III.
Teva Pharmaceuticals USA, Inc. v. Novartis Pharmaceuticals Corp.,
that the dispute be “definite and concrete, touching the legal relations of the parties having adverse legal interests”; and that it be “real and substantial” and “admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”
Id.
(citing
MedImmune, Inc. v. Genentech, Inc.,
The TAC does not clearly delineate the declaratory relief being sought here. In the section of the TAC on Count I, Plaintiffs specifically ask the Court to declare:
(a) that BIC’s conduct violates the CFA ... and (b) that BIC is obligated to reimburse class members for the cost of repairing and/or replacing MFC machines whose print heads fail due to the ME41 defect after judgment is entered in this action.
TAC ¶ 112. 9 The declaration Plaintiffs seek in the Count I section of the TAC is *505 duplicative of a favorable finding for Plaintiffs on their CFA claims. If there is a finding in favor of Plaintiffs on their CFA claims, then an actual judgment, rather than a mere declaration, would be entered stating that BIC’s actions have violated the CFA and further that Plaintiffs, including class members, are entitled to relief, which could include the cost of repair or replacement. Unless Plaintiffs identify a basis in the CFA whereby the Court must grant declaratory relief as a prerequisite for a finding of liability, the Court need not issue a separate declaratory judgment on the merits of the action.
As such, Plaintiffs’ claim seeking a declaratory judgment is dismissed and BIC’s alternative arguments need not be considered.
V. ME41 Unjust Enrichment
BIC maintains that Plaintiffs fail to sufficiently allege аn unjust enrichment claim. An unjust enrichment claim may be sustained independently as an alternative theory of recovery.
In re K-Dur Antitrust Litigation,
At the outset, the Court notes that an unjust enrichment claim need not be pled with the same specificity as a claim sounding in fraud. Rather, the more liberal notice pleading standard of
Fed. RCiv.P.
8(a) applies. An unjust enrichment claim requires plaintiff to allege “(1) at plaintiffs expense (2) defendant received benefit (3) under circumstances that would make it unjust for defendant to retain benefit without paying for it.”
In re K-Dur,
BIC first asserts that Plaintiffs’ unjust enrichment claims fail as a matter of law for the same reasons that Plaintiffs’ ME41 claims fail under the CFA. Plaintiffs’ unjust enrichment claims predicated on the “Machine Error 41” defect are identical to their claims under the CFA: “BIC obtained secret profits by which it became unjustly enriched at the expense of Plaintiffs and proposed class members ... [and it] would be unfair for BIC to retain the profits[.]” TAC ¶ 118. However, as explained supra at III, the TAC alleges a sufficient claim under the CFA. Therefore, BIC’s argument based solely on Plaintiffs’ purportedly failed CFA allegations, has no merit.
Nevertheless, BIC also argues that Plaintiffs’ claims must fail because Plaintiffs did not sufficiently allege that BIC was enriched beyond its contractual rights nor did they allege that they purchased their MFC machines directly from
*506
BIC. Specifically, BIC asserts that Plaintiffs needs to allege a relationship between the parties to support unjust enrichment and that they fail to allege this. In
Cooper v. Samsung Elecs. Am. Inc.,
No. 07-3853,
although Cooper alleges that Samsung was unjustly enriched through the purchase of the television, there was no relationship conferring any direct benefit оn Samsung through Cooper’s purchase, as the purchase was through a retailer, Ultimate Electronics ... Cooper, therefore, did not confer a benefit on Samsung within the meaning of New Jersey’s doctrine of unjust enrichment.
Id.
at *10 (emphasis added) (citations omitted); See also
Premier Pork L.L.C. v. Westin Inc.,
No. 07-1661,
VI. Conclusion
For the following reasons, BIC’s motion to dismiss is granted in part, and denied in part; the Motion to dismiss is denied with respect to Count II and granted with respect to Counts I and III. With respect to Plaintiff Huryk, Count III is dismissed without prejudice.
Notes
. Although the TAC alleges that Plaintiff Mark Maniscalco purchased an MFC machine in late 2004, TAC ¶ 83. Plaintiffs' counsel represents that this was a typographical error. In fact, subsequent investigation, detailed in Plaintiffs' brief and produced to BIC through
*498
Rule 16 Disclosures and interrogatory rеsponses, demonstrated that Plaintiff Maniscalco purchased his Machine from Office Depot on June 28, 2004 and that his Machine failed in May 2007, despite the TAC alleging March 2007. See Maniscalco Interrog. No. 1; Micheletti Cert. ¶ 12. BIC suggests that the Court should nevertheless use the dates as alleged in the TAC on a motion to dismiss and has refused to consent to Plaintiffs’ request to correct the TAC. However, the Court may use other information to clarify a typographical error in a complaint where the opposing party becomes aware of the correct information during discovery.
See Holbrook v. Woodham,
No. 05-305,
. BIC contends that New Jersey law should not apply to this case but BIC suggests that this issue is best left for resolution later. Plaintiffs agree that the resolution of this issue is premature. Accordingly, the Court will not address it here.
. Plaintiffs' reliance on
Payne v. Fujifilm U.S.A., Inc.,
No. 07-385,
. BIC also cites
Duffy v. Samsung Elecs. America, Inc.,
No. 06-5259,
.
See Gennari v. Weichert Co. Realtors,
. This finding is consistent with
McCalley v. Samsung Elecs. Am. Inc.,
No. 07-2141,
. BIC asserts that without pleading sufficient ascertainable loss, Plaintiffs would not be able to sue in their own right under the CFA and would, thus, also lack standing to assert the rights of the other members of the class.
Kauffman v. The Dreyfus Fund, Inc.,
.
Perkins,
. In the introduction to the TAC, Plaintiffs summarize their claims and requests for relief by stating, inter alia, that they are asking the Court for: "declaratory relief in the form of an order declaring that class members whose print heads have yet to fail have the right to reimbursement of the cost of repair or replacement if and when their print heads fail as a result of the ME4I defect TAC, ¶ 10. However, because this type of relief *505 was not expressly plead in Count I, the Court will not consider this as a request for relief within Count I.