OPINION OF THE COURT
The Travelers Indemnity Company sought a declaration in federal court that it was not obligated to cover any claims asserted against its insured, Dammann & Co., Inc., by International Flavors & Fragrances Inc. (“IFF”). More than three years after Travelers initiated this lawsuit, IFF sought leave to assert various cross-claims against Dammann. The District Court denied that request on futility grounds, concluding that the proposed crossclaims either were time-barred or failed to state a claim. IFF now appeals the District Court’s denial of its request. Seeing no abuse of discretion in the District Court’s ruling, we will affirm.
I.
Dammann is a producer of raw foods, including vanilla beans. IFF manufactures, among other things, food and beverage flavoring, including vanilla extract. Dammann agreed, via a written contract, to sell vanilla beans to IFF and delivered shipments in January 2004. IFF incorporated those beans into its vanilla extract, which it later sold to several of its customers. In February 2004, IFF learned that some of the beans may have contained mercury. Subsequent tests confirmed as much. In May 2004, IFF sent a letter to Dammann claiming more than five million dollars in damages in connection with the contaminated beans. Dammann thereafter sought coverage from Travelers, its insurer, for liability arising out of IFF’s claim.
In November 2004, Travelers commenced this action by filing a one-count complaint against Dammann and IFF in the United States District Court for the District of New Jersey. Travelers sought a declaration that the insurance policy it had sold to Dammann did not cover IFF’s damages claim. Dammann subsequently filed a counterclaim against Travelers, seeking a declaration that Travelers was obligated to cover IFF’s claim and asserting additional claims for breach of contract, breach of fiduciary duty, and breach of the duty of good faith and fair dealing. Dammann also filed a third-party complaint against Cooperative Business International, Inc. (“CBI”), and CBI’s insurer, Nationwide Mutual Insurance Company. In its third-party complaint, Dammann alleged it had bought the contaminated beans from CBI and sought indemnification from CBI — or from Nationwide — for any liability Dammann might incur as a result of IFF’s claim.
In June 2007, Travelers moved for summary judgment on its declaratory judgment claim. The District Court denied that motion, concluding that a portion of IFF’s claim was covered by Dammann’s insurance policy with Travelers and that another portion was potentially covered by the policy.
In February 2008, IFF sought leave to file crossclaims for breach of express warranty, breach of implied warranty, and product liability against Dammann. Dammann and CBI both opposed the motion. In August 2008, Magistrate Judge Shipp *242 denied IFF’s motion. 1 Judge Shipp noted that IFF’s February 2008 request came more than four years after its January 2004 receipt of the beans but less than four years after its February 2004 discovery of the contamination. The Uniform Commercial Code (“U.C.C.”), which Judge Shipp determined was applicable, imposes a four-year statute of limitations, see U.C.C. § 2-725(1), and provides that a cause of action accrues at the time of the breach except where a warranty expressly extends to future performance, id. §§ 2— 725(2)(a), (3)(c). Judge Shipp concluded there was no such express extension in IFF’s contract with Dammann and that, as a consequence, IFF’s breach of warranty crossclaims were untimely. With respect to IFF’s product liability crossclaim, Judge Shipp reasoned that it was barred by the economic loss doctrine. Judge Shipp also found that IFF had exhibited undue delay in seeking leave to file crossclaims. For all these reasons, Judge Shipp denied IFF’s motion.
IFF appealed Judge Shipp’s ruling to the District Court. Before the District Court disposed of that appeal, IFF filed a brief “in further support” of its appeal. In that supplemental brief, IFF reiterated its challenge to Judge Shipp’s ruling and sought permission to assert not only the breach of express warranty, breach of implied warranty, and product liability cross-claims it had previously sought to assert, but also express indemnification and implied indemnification crossclaims, all against Dammann.
In October 2008, Travelers and Dammann stipulated to the dismissal of each other’s claims.
In November 2008, the District Court held a hearing on IFF’s appeal of Judge Shipp’s ruling and its request to file additional crossclaims. In December 2008, the District Court rejected IFF’s appeal and denied its request to assert any cross-claims, concluding they were futile because they were either time-barred or insufficiently pled.
Travelers Indem. Co. v. Dammann & Co., Inc.,
This timely appeal followed. On appeal, IFF argues that it should have been permitted to proceed on its product liability as well as express and implied indemnification crossclaims. IFF does not challenge the District Court’s denial of its request to assert breach of express and implied warranty crossclaims.
II.
The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291.
2
We
*243
review a district court’s denial of a request for leave to file new claims for abuse of discretion.
See Winer Family Trust v. Queen,
III.
A. IFF’s Proposed Product Liability Crossclaim
IFF argues that the District Court erred in denying its request to assert a product liability crossclaim. The District Court agreed with Judge Shipp that IFF’s crossclaim sounded in contract and thus was governed by the U.C.C. and its four-year statute of limitations. The Court rejected IFF’s contention that its crossclaim sounded in tort and was therefore governed by the New Jersey Product Liability Act (“NJPLA”), N.J. Stat. Ann. § 2A58C-1 et seq., and New Jersey’s accompanying six-year statute of limitations for tort claims. See N.J. Stat. Ann. § 2A:14-1 4 In making these determinations, the District Court reviewed New Jersey’s economic loss doctrine. While recognizing that New Jersey law was unsettled on this point, the District Court, after surveying the law in other jurisdictions, predicted that the Supreme Court of New Jersey would interpret that doctrine to bar tort claims where a plaintiff seeks economic *244 damages for foreseeable losses for which the plaintiff could have contractually allocated risk. Concluding that IFF was just such a plaintiff, the District Court reasoned that the economic loss doctrine barred application of the NJPLA in this case.
Under the NJPLA, “[a] manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose!).]” N.J. Stat. Ann. § 2A:58C-2. 5 The statute defines “harm,” in pertinent part, as “physical damage to property, other than to the product itself[.]” N.J. Stat. Ann. § 2A58C-1(b)(2)(a). While the NJPLA defines “harm,” it does not explain the meaning of “physical damage to property, other than to the product itself.” No New Jersey court has delineated the contours of “the product itself’ and “other property” as contemplated by the NJPLA.
Under New Jersey law, the economic loss doctrine “defines the boundary between the overlapping theories of tort law and contract law by barring the recovery of purely economic loss in tort, particularly in strict liability and negligence cases.”
Dean v. Barrett Homes, Inc.,
Neither the Supreme Court of New Jersey nor any other New Jersey court has directly clarified the interaction between the NJPLA and the economic loss doctrine. In other words, no New Jersey case specifically says whether the sort of claim IFF alleges here is governed by contract or tort principles. As a consequence, we must predict how the New Jersey Supreme Court would resolve this case.
See Hunt v. United States Tobacco Co.,
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The New Jersey courts have long recognized that while “[a] tort action is separate and distinct from a contract actionf,]”
Huck v. Gabriel Realty,
Two decades later, the New Jersey Supreme Court rejected the rationale of
San-tor,
at least in the commercial, as opposed to consumer, context, in
Spring Motors Distributors, Inc. v. Ford Motor Company,
the principle that parties should be free to make contracts of their choice, including contracts disclaiming liability for breach of warranty. Once they reach such an agreement, society has an interest in seeing that the agreement is fulfilled. Consequently, the U.C.C. is the more appropriate vehicle for resolving commercial disputes arising out of business transactions between persons in a distributive chain.
Id. at 668. In the New Jersey Supreme Court’s view, allowing the truck purchaser to sue in tort would “would dislocate major provisions of the [U.C.C.]” by “obviat[ing] the statutory requirement that a buyer give notice of a breach of warranty” and “depriving] the seller of the ability to exclude or limit its liability[.]” Id. at 671 (citations omitted). “In sum,” the Court wrote, “the U.C.C. represents a comprehensive statutory scheme that satisfies the needs of the world of commerce, and courts should pause before extending judicial doctrines that might dislocate the legislative structure.” Id.
The New Jersey Supreme Court revisited and expanded on these principles more than two decades later in
Alloway v. General Marine Industries,
Although Spring Motors and Alloway plainly disfavor the application of tort law in what is an otherwise clearly contractual context, neither case addresses the circumstance where, as here, a buyer has entered into a contract — which includes contractual protection in the form of indemnification and warranty clauses' — with a seller of an allegedly defective product that causes damage not only to the product itself but to something other than the product itself. Here, the product itself is the vanilla beans IFF bought from Dammann. The “other property” that was allegedly damaged is IFF’s other flavoring products it mixed with the contaminated beans as well as the machinery it used to manufacture vanilla extract.
We cannot help but note, as we analyze this case, what appears to be a tension between the economic loss doctrine and the NJPLA. Specifically, the economic loss doctrine precludes tort claims for purely economic loss without reference to whether the loss stems from damage to “the product itself’ or “other property.” At the same time, the NJPLA clearly permits a plaintiff to pursue a tort remedy in the event of harm to “other property” without reference to New Jersey’s preference for keeping tort out of contract’s hair. The New Jersey Supreme Court has not had occasion to harmonize that apparent tension,
see, e.g., Alloway,
While we have recognized that “[t]he New Jersey Supreme Court has long been a leader in expanding tort liability!,]”
Hakimoglu v. Trump Taj Mahal Assocs.,
Spring Motors and Alloway reflect a deference to legislative will where the legislature has provided a comprehensive scheme controlling the relationship between the parties and, more specifically, a recognition of the importance of the allocation of risk of economic loss against the background of the rights and remedies provided by the U.C.C. ... [A]s far as parties (whether commercial or non-commercial) within the distribution chain of goods are concerned, the U.C.C. alone controls the liability of a seller of goods for economic loss arising as a result of a defect in those goods; there is, accordingly, no liability in a tort action whether it be one asserting strict liability or negligence.
Paramount Aviation Corp. v. Gruppo Agusta,
Here, the record is bereft of any indication that IFF and Dammann are anything other than sophisticated players on equal footing.
Cf. Alloway,
To allow IFF to pursue tort remedies for its alleged damages — damages for which the U.C.C. permits recovery and for which IFF could have contractually shielded itself — would effectively authorize duplicative recovery, a result the New Jersey Supreme Court has specifically criticized.
See Alloway,
We find support for our conclusion in the law of other jurisdictions. Indeed, our reference to other jurisdictions for guidance in the absence of clear authority in New Jersey law is in harmony with the New Jersey Supreme Court’s own approach under similar circumstances.
See, e.g., Saltiel,
There exists a split of authority among other jurisdictions regarding the meaning of “other property” in the context of the economic loss doctrine. The majority of jurisdictions employ some variation of a test under which “tort remedies are unavailable for property damage experienced by the owner where the damage was a foreseeable result of a defect at the time the parties contractually determined their respective exposure to risk, regardless whether the damage was to the ‘goods’ themselves or to ‘other property.’ ”
Dakota Gasification Co. v. Pascoe Bldg. Sys.,
The New Jersey Supreme Court’s clear rejection of an approach that would allow tort law to substitute for contract law in cases involving sophisticated parties with equal bargaining power is strongly resonant of the rationale of those jurisdictions espousing the majority rule. In
Grams v. Milk Products, Inc.,
for instance, the Wisconsin Supreme Court rejected the plaintiffs’ proposal to adopt “a new ‘bright line rule,’ that physical damage to anything other than the product itself would be considered damage to ‘other property’ and therefore subject to suit in tort[.]”
[t]he proper approach requires consideration of the underlying policies of tort and contract law as well as the nature of the damages. The essence of a warranty action under the [U.C.C.] is that the product was not of the quality expected by the buyer or promised by the seller. The standard of quality must be defined by the purpose of the product, the uses for which it was intended, and the agreement of the parties. In many cases, failure of the product to perform as expected will necessarily cause damage to other property; such damage is often not beyond the contemplation of the parties to the agreement. Damage to property, where it is the result of a commercial transaction otherwise within the ambit of the [U.C.C.], should not preclude application of the economic loss doctrine where such property damage necessarily results from the delivery of a product of poor quality.
Although by no means dispositive of our inquiry on its own, the fact that New Jersey courts have unequivocally stated their opposition to tort law’s encroachment into the contractual domain fortifies the proposition that the New Jersey Supreme Court would endorse the view followed by the majority of jurisdictions. We recognize, of course, that New Jersey has a legislative mandate under the NJPLA to treat harm to “other property” differently from harm to “the product itself,” while the “other property” exception in many other jurisdictions is a creature of judicial making.
See, e.g., Moransais v. Heathman,
To support its view that the beans it bought from Dammann constitute “the product itself’ while the vanilla extract and other flavoring products mixed with the beans to make the extract constitute “other property,” IFF points us to a series of cases from both the Supreme Court,
see E. River S.S. Corp. v. Transamerica Delaval, Inc.,
One final thought deserves mention. As a federal court sitting in diversity, we are charged with predicting how another court — in this case, the New Jersey Supreme Court — would rule on the record presented to us. Because of the dearth of directly on-point New Jersey case law, this case represents yet another example of how difficult the predictive exercise can be.
See, e.g.,
Dolores K. Sloviter,
A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism,
78 Va. L.Rev. 1671, 1679-80 (1992) (cataloguing instances in which this Court has “guessed wrong” in spite of “our best efforts to predict the future thinking of the state supreme courts within our jurisdiction on the basis of all of the available data”). Given that difficulty, in reaching our conclusion we have exercised restraint in accordance with the well-established principle that where “two competing yet sensible interpretations” of state law exist, “we should opt for the interpretation that restricts liability, rather than expands it, until the Supreme Court of [New Jersey] decides differently.”
Werwinski,
Because we predict that the New Jersey Supreme Court would hold that IFF’s product liability crossclaim for what is clearly economic loss sounds in contract is therefore barred by the economic loss doctrine, we hold that the District Court did not abuse its discretion in denying IFF’s request with respect to that crossclaim and will affirm its ruling in that respect.
B. IFF’s Proposed Express Indemnification Crossclaim
IFF argues that the District Court erred in denying its request to assert an express indemnification crossclaim. In that proposed crossclaim, IFF alleged that its contract with Dammann included two
*254
express indemnity clauses and that Dammann, despite demand, had refused to indemnify IFF. Under New Jersey Law, express contractual indemnification claims are subject to a six-year statute of limitations.
See
N.J. Stat. Ann. § 2A:14-1;
see also First Indem. of America Ins. Co. v. Kemenash,
The first clause in the parties’ contract, titled “REWORK AND PRODUCT LIABILITY INDEMNIFICATION,” provides, in pertinent part: “Seller shall be responsible for claims by third parties against Buyer for loss or damage based on personal injury or destruction of property due to defects in the product for which Seller is responsible.” (App. 196.) The second clause, labeled “PERSONAL INJURY AND PROPERTY DAMAGE LIABILITY INDEMNIFICATION,” states:
Seller agrees to defend, indemnify and hold harmless Buyer from all claims, actions, losses, damages and expenses resulting from any injury to persons, damage to property or action by any regulatory agency, arising out of or in any way associated with the design, installation, and/or operation of any production formulation, packaging, or support equipment (including equipment owned by Seller, Buyer or Third Parties), used in the production, processing or handling of the product(s) sold hereunder and all raw materials used in the production^]
(App. 197.)
The District Court reasoned that an indemnification claim is viable only where the indemnitee seeks to “obtain recovery from the indemnitor for liability incurred to a third party.”
Travelers Indem.,
Turning first to IFF’s express indemnification claim for first-party damages, we, like the District Court, have unearthed no New Jersey case that actually permits an indemnitee to maintain the sort of claim that IFF wishes to assert against Dammann. To support its view, IFF correctly asserts that the word “indemnity” generally enjoys a broad definition.
See
Black’s Law Dictionary 783 (8th ed.2004) (defining indemnity as “[a] duty to make good
any
loss, damage, or liability incurred by another” (emphasis added)). To be sure, given the expansive meaning of “indemnity” and New Jersey law’s respect for the ability of parties to contract freely,
see Spring Motors,
Under New Jersey law, we must interpret the parties’ contract according to its plain language,
see State Troopers Fraternal Ass’n of N.J. v. State,
Turning next to IFF’s express indemnification crossclaim based on third-party damages, we must again consider the clauses’ language. IFF argues that both clauses obligate Dammann to indemnify IFF for IFF’s liability to its customers based on the contaminated flavoring and that IFF alleged as much in its proposed crossclaim. IFF gives the first clause too liberal a reading. As noted above, that clause requires Dammann to compensate IFF for “loss or damage based on personal injury or destruction of property due to defects” in the vanilla beans. (App.196.) IFF’s proposed crossclaim is devoid of even an oblique suggestion that any customer that asserted a claim against IFF suffered personal injury or property damage. Accordingly, the District Court did not abuse its discretion when it concluded that IFF failed to state a claim based on the first clause. 13
IFF’s understanding of the second clause is likewise misguided. That clause, as noted above, requires Dammann to compensate IFF for losses “arising out of or ... associated with the design, installation, and/or operation of any production formulation, packaging, or support equipment ... used in the production, processing or handling of the product(s) sold hereunder and all raw materials used in the production!.]” (App 197.) IFF clings to the phrase “raw materials” to show that it adequately alleged that its customers suffered damage to their raw materials. IFF’s isolation of that phrase is unavailing. The clause at issue here clearly imposes an obligation on Dammann only if IFF incurs liability to a third party in connection with “the design, installation, and/or operation of any production formulation, packaging, or support equipment.” The remaining portion of the clause that IFF spotlights has not been triggered because IFF does not allege that its predicate — the first part of the clause — is met. That is, IFF nowhere alleges that any claim against it by a third party bears any relation to the “design, installation, and/or operation” of the various activities enumerated in the rest of the clause. IFF has therefore failed to state an indemnification claim for third party damages, and the District Court, by extension, did not abuse its discretion in denying IFF’s request as it pertained to that crossclaim. 14
*257 Accordingly, we conclude that the District Court did not abuse its discretion in denying IFF’s request for leave to assert an express indemnification crossclaim.
C. IFF’s Proposed Implied Indemnification Crossclaim
IFF challenges the District Court’s denial of its request with respect to its proposed implied indemnification crossclaim. The District Court found that crossclaim wanting for many of the same reasons discussed above. To the extent IFF sought compensation for first-party damages, the Court found that IFF in fact stated a direct liability claim. To the extent IFF sought compensation for third-party damages, the Court noted that IFF failed to allege that it had incurred “any ‘legal obligation’ under which it was compelled to pay the claimed money to its customers and distributors” and failed to point to any “settlement agreement, court order, etc. under which it was obligated to make these payments.”
Travelers Indent.,
IFF has no quarrel with the District Court’s determination that it did not state a claim for first-party damages because, according to IFF, it never asked for such damages. Instead, IFF trains its sights on. the District Court’s ruling with respect to its indemnification crossclaim for third-party damages. In its brief, IFF recites the following chronology to support that crossclaim: IFF notified the Food and Drug Administration (“FDA”) of the potential contamination of the vanilla beans it bought from Dammann; the FDA subsequently classified those beans as “adulterated” under federal law; IFF’s sale of vanilla extract made from the adulterated beans led to customer claims against IFF; and IFF made demand on Dammann for compensation in connection with those claims. IFF maintains that it is strictly liable under New Jersey law for its vanilla extract sales and that it was therefore obligated to compensate its customers. In IFF’s view, its “customers did not need to establish [its] ‘legal obligation’ through a *258 lawsuit [because] IFF made ... payment ... under penalty of law.” (Appellant’s Br. 58.)
In New Jersey, the right of indemnity “is a right which enures to a person who, without active fault on his own part, has been compelled,
by reason of some legal obligation,
to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable.”
Adler’s Quality Bakery, Inc. v. Gaseteria, Inc.,
Here, because Dammann’s duty to indemnify arises from a “legal obligation to pay damages,” IFF had to allege a legal duty to compensate its customers in order to state an implied indemnification claim. A careful review of IFF’s proposed cross-claim reflects no such allegation. Although IFF states that it notified both its customers and the FDA of possible contamination and that the vanilla beans were later determined to be prohibited from sale under federal law, IFF alleges — in the product liability count of its proposed crossclaim — -only that it “was required to issue credits and/or refunds to its customers and distributors that had purchased mercury contaminated flavor products” and that “Dammann owes a common law duty to indemnify IFF.” (App. 307, 310.) Importantly, that allegation refers only to some amorphous, unspecified requirement. Even the most indulgent reading does not suggest that IFF was legally obligated to compensate its customers. The absence of such an allegation is fatal to IFF’s proposed indemnification claim. 15 Accordingly, we will decline to upset the District Court’s holding that IFF failed to state an implied indemnification claim for third-party damages. 16
*259 IV. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s judgment.
Notes
. After the defendants filed oppositions to IFF’s motion, IFF filed a reply brief stating that it was "agreeable” to withdrawing its proposed crossclaims for breach of express and implied warranties. (App. 207.) Judge Shipp denied IFF’s motion notwithstanding IFF’s indication of willingness to withdraw its breach of warranty crossclaims.
. After this appeal was docketed, the Clerk of this Court advised the parties that this appeal was subject to possible dismissal on the ground that the District Court’s order denying IFF’s request for leave to assert crossclaims was not a final order within the meaning of 28 U.S.C. § 1291. In response, IFF submitted a letter stating that the District Court, following the filing of the notice of appeal, had entered an order stating that its ruling on IFF’s request for leave to file crossclaims "was a final order for purposes of appeal, and that all remaining claims, counterclaims and cross-claims in this matter are rendered moot[.]” Travelers, Dammann and Nationwide have all submitted separate letters concurring that there are no issues pending before the District Court. Having considered
*243
the matter independently,
see Arbaugh v. Y & H Corp.,
. IFF asserts in its opening brief that we should exercise plenary review over the District Court's denial of its request, and is not the first litigant to do so in this Court.
See, e.g., Bjorgung v. Whitetail Resort, LP,
Plaintiffs contend that the applicable standard of review of futility determinations is de novo, relying upon our decision in [In re Burlington Coat Factory Securities Litigation,114 F.3d 1410 (3d Cir.1997)], as adopting the standard employed by several of our sister courts of appeals, but we do need read Burlington as having done so.... Accordingly, we decline the plaintiffs’ invitation to chart a new course and consider the District Court’s finding of futility for abuse of discretion.
In re Adams Golf, Inc. Sec. Litig.,
. The parties agree that New Jersey law governs this case.
. The New Jersey Legislature enacted the NJPLA in light of its finding that “there is an urgent need for remedial legislation to establish clear rules with respect to certain matters relating to actions for damages for harm caused by products, including certain principles under which liability is imposed and the standards and procedures for the award of punitive damages.” N.J. Stat. Ann. § 2A:58C-l(a). Notwithstanding the Legislature’s objective, as we shall see, the statute in fact obscures more than it elucidates, especially when juxtaposed with other elements of New Jersey law.
. The
Spring Motors
Court took stock of the wave of criticism leveled at the
Santor
ruling by both courts and commentators.
See Spring Motors,
. In
Goldson v. Carver Boat Corporation,
Product liability grew out of a public policy judgment that people need more protection from dangerous products than may be afforded by the law of contracts and warranties. The traditional contract is the result of free bargaining of parties who are brought together by the play of the market, and who meet each other on a footing of approximate economic equality. But other concerns exist where the buyer has no real freedom of choice and the manufacturer uses its grossly disproportionate bargaining power to introduce into the stream of commerce an instrumentality that, because of its defective design or construction, poses a grave danger of injury to other persons or property.
Id.
at 199-200 (internal quotation marks and citations omitted). Based on these principles, the
Goldson
Court concluded that "where, as here, the consumer is not at a genuine commercial disadvantage, there is greater reason to allow allocation of the loss caused by a defective product to reflect the interplay of forces in the marketplace," and that, "[i]n such a case, the parties are able to allocate among themselves both the benefits and risks that inhere in their mutual promises."
Id.
at 200;
accord Dean,
. It might be argued, of course, that a court is more at liberty to work around a judicially-created doctrine than a legislative act, which a court must do its utmost to respect and enforce. Whatever the merit of that argument, it is not relevant here, as we are not ignoring the NJPLA's "other properly” exception. Instead, we seek to reconcile two seemingly conflicting strains of New Jersey law to *252 the best of our ability given all available, relevant data.
. Our decision in
In re Merritt Logan, Inc.,
.
Werwinski
dealt with Pennsylvania law, but the principle it articulated is applicable in any case in which a federal court sits in diversity.
See, e.g., Ashley County v. Pfizer,
. In reaching that conclusion, the District Court relied on
Feigenbaum v. Guaracini,
. Although the District Court did not resolve this issue solely on the basis of the parties’ contract, as we do, we may affirm on any ground supported by the record.
Nicini v. Morra,
. IFF asserts that, liberally construed, its proposed indemnification crossclaim based on the first clause contains adequate allegations from which to infer that its customers' claims were due to personal injury or destruction of property. That assertion is unpersuasive. The Supreme Court has recently made clear that a “a complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.”
Ashcroft v.
Iqbal, - U.S. -,
. IFF argues that, even if we agree with the District Court, we should remand to allow IFF to amend its express indemnification crossclaim. In this Court, "if a complaint is vulnerable to [Federal Rule of Civil Procedure] 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.”
Phillips v. County of Allegheny,
. In its appellate brief, IFF argues that it was in fact legally obligated to pay its customers because of its alleged strict liability under New Jersey law. But before the District Court IFF never explicitly pressed any such legal obligation. In its reply to CBI's opposition to the appeal of Judge Shipp's ruling, IFF asserted only that "there is no support for CBI's contention that IFF had no legal obligation to make payment to those customers who were supplied with the mercuiy[-]contaminated product.” (IFF’s Reply Br. in Support of Appeal of August 13, 2008 Order and for Leave to File Am. and Supp. Cross-cl. at 15, Nov. 10, 2008.) In its proposed cross-claim, however, IFF alleged only that the extract it produced using the contaminated beans was prohibited from sale under federal law. Importantly, there was no allegation that such a prohibition retroactively imposed an actual legal duty on IFF to compensate its customers. In essence, IFF seeks to retrofit arguments presented on appeal onto allegations it failed to incorporate into its proposed crossclaim and accompanying motion for leave before the District Court. Because IFF did not present such a legal obligation to the District Court, it is precluded from doing so in this Court. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir.2007).
Judge Stapleton would affirm the District Court’s ruling on the common law indemnity claim because the Food, Drug, and Cosmetic Act, the foundation of its argument before the District Court, does not create a private cause of action available to IFF's customers.
In re Orthopedic Bone Screw Prods. Liab. Litig.,
. We express no opinion on the District Court’s conclusion — specifically challenged by IFF — that the absence of a "settlement agreement ] [or] court order[,]”
Travelers Indem.,
*259