United States District Court, D. Connecticut
TEREX SOUTH DAKOTA, INC. Plaintiff,
FOM USA, INC., FOM INDUSTRIE, S.r.l. Defendants.
MEMORANDUM OF DECISION ON MOTION TO DISMISS
W. EGINTON SENIOR U.S DISTRICT JUDGE
multi-count complaint, plaintiff Terex South Dakota, Inc.,
alleges that defendants FOM USA, Inc. and FOM Industrie,
S.r.l. (“Defendants FOM”) caused it damage due to
to an ineffective milling machine known as the Titan 012 that
defendants had supplied for plaintiff's equipment
manufacturing business. Plaintiff asserts the following
counts: (1) breach of contract; (2) breach of implied
covenant of good faith and fair dealing; (3) breach of
express warranty; (4) breach of the implied warranty of
fitness; (5) breach of the implied warranty of
merchantability; (6) misrepresentation; and (7) negligence.
Defendants have filed a motion to dismiss the claims of
breach of contract, breach of implied covenant of good faith
and fair dealing; misrepresentation, and negligence. For the
following reasons, the motion will be granted in part and
denied in part.
purposes of ruling on this motion, the Court takes the facts
alleged in the complaint to be true.
is a manufacturer of heavy equipment. Defendant FOM USA is a
subsidiary and distributor of defendant FOM Industrie.
2012, Terex decided to replace its existing milling machine.
It solicited a bid from defendants FOM. Terex provided
drawings of certain parts that it planned to manufacture with
a replacement milling machine and advised defendants FOM of
its performance requirements. In August 2012, FOM USA
provided Terex with a “Time Study Multifabrication Line
August 2012" identifying the estimated amount of
production time based on the drawings supplied by Terex.
relied upon this Time Study in making its decision to buy the
milling machine from defendants FOM.
February 2014, Terex and FOM USA entered into a Machine
Proposal and an Order Confirmation for Terex's purchase
of the FOM Titan 012 for $1, 059, 000. The Terms and
Conditions of Purchase attached to the Order Confirmation
were negotiated between Terex and defendants FOM.
Titan 012 was installed at Terex's facility in March
2015. Terex S.D. incurred more than $150, 000.00 in expenses
related to installation of the Titan 012, purchase of
FOM's proprietary operating software, and unloading the
after installation, Terex S.D. experienced performance issues
with the Titan, including its software. In summer 2017, Terex
S.D. contacted defendants FOM about the performance issues,
but defendants were unwilling to correct the deficiencies.
S.D. maintains that the Titan S.D. did not perform as
represented and warranted by defendants. Because the Titan
did not meet performance requirements, Terex S.D. had to
supplement the limited production provided by the Titan with
the milling machine that it had sought to replace.
function of a motion to dismiss is "merely to assess the
legal feasibility of the complaint, not to assay the weight
of the evidence which might be offered in support
thereof." Ryder Energy Distrib. v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984).
When deciding a motion to dismiss, the Court must accept all
well-pleaded allegations as true and draw all reasonable
inferences in favor of the pleader. Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984). The complaint must
contain the grounds upon which the claim rests through
factual allegations sufficient “to raise a right to
relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 545 (2007). A plaintiff
is obliged to amplify a claim with some factual allegations
in those contexts where such amplification is needed to
render the claim plausible. Iqbel v. Hasty, 490 F.3d
143, 157 (2d Cir. 2007) (applying flexible
“plausibility standard” to Rule 8 pleading).