NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

CHARLES PAPPALARDO, et al., : CIVIL ACTION NO. 11-1320 (MLC)

 :

Plaintiffs, : MEMORANDUM OPINION

 :

v. :

 :

COMBAT SPORTS, INC., et al., :

 :

Defendants. :

 :

COOPER, District Judge

Plaintiffs, Charles Pappalardo, Michael Slebodnik, Jeffrey

Welsh, and David Youshock (collectively, “Plaintiffs”), commenced

this putative class action against defendants, Combat Sports,

Inc., DeMarini Sports, Inc., Easton Bell Sports, Inc. (“Easton”),

Hillerich & Bradsby Co., Wilson Sporting Goods, Inc. (“Wilson”),

Mattingly Hitting Products, Inc., Miken Sports, Nike USA, Inc.

(“Nike”), Rawlings Sporting Goods Co., Inc., and Worth Sports

(collectively, the “Manufacturer Defendants”), and Little League,

Inc. (“Little League”), and Babe Ruth League, Inc. (“Babe Ruth”)

(collectively, the “League Defendants”), in New Jersey Superior

Court. (Dkt. entry no. 1, Rmv. Not. & Ex. A, Am. Compl.) 

Defendants removed on the basis that this Court has jurisdiction

pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d). 

(Rmv. Not. at ¶ 18.) 

The Amended Complaint asserts claims for (1) violations of

the New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. § 56:8-1 et

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seq.; (2) breach of express warranty pursuant to N.J.S.A. §

12A:2-313; (3) breach of implied warranty of merchantability,

pursuant to N.J.S.A. § 12A:2-314(1) & (2); (4) breach of implied

warranty of fitness for a particular purpose, pursuant to

N.J.S.A. § 12A:2-315; (5) unjust enrichment; and (6) negligence. 

(Am. Compl. at ¶¶ 49-128.) Plaintiffs assert each of these six

claims separately as to the Manufacturer Defendants and the

League Defendants. (Id.) 

Each defendant now moves to dismiss the Amended Complaint

insofar as asserted against it, pursuant to Federal Rule of Civil

Procedure (“Rule”) 12(b)(6). (Dkt. entry no. 36, Easton Mot. to

Dismiss; dkt. entry no. 37, Wilson Mot. to Dismiss; dkt. entry

no. 38, Combat Sports, Inc. Mot. to Dismiss; dkt. entry no. 39,

Nike Mot. to Dismiss; dkt. entry no. 40, Hillerich & Bradsby Co.,

Miken Sports, Rawlings Sporting Goods Co., Inc., and Worth Sports

Joint Mot. to Dismiss; dkt. entry no. 42, Mattingly Hitting

Products, Inc. Mot. to Dismiss; dkt. entry no. 44, Little League

Mot. to Dismiss; dkt. entry no. 59, Babe Ruth Mot. to Dismiss.)1

Defendants Combat Sports, Inc., Hillerich & Bradsby Co., and Nike

have since been voluntarily dismissed from the action by

stipulation, and thus their respective motions to dismiss have

 Defendant DeMarini Sports, Inc., has not entered an appearance, 1

but is alleged to be “a wholly-owned division of Wilson.” (Am.

Compl. at ¶ 3.) Wilson’s brief in support of its motion to

dismiss states that it was “improperly pled as Wilson Sporting

Goods, Inc. and DeMarini Sports, Inc.” (Dkt. entry no. 37,

Wilson Br. at 1.)

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been rendered moot. (See dkt. entry nos. 62, 67, and 68, Stips.

of Dismissal.) The Court decides the motions on the submissions

of the parties, without oral argument, pursuant to Local Civil

Rule 78.1(b). For the reasons stated herein, the Court will

grant the separate motions to dismiss. 

BACKGROUND

Plaintiffs allege that they “purchased composite barreled

bats manufactured by the Manufacturer Defendants and licensed,

approved and endorsed by the League Defendants” for use in

organized youth baseball. (Am. Compl. at ¶ 14.)

Plaintiffs assert that the Manufacturer Defendants made

representations regarding the “bat performance standard” (“BPF”)

of the composite barreled bats in question, specifically, that

the “Manufacturer Defendants agreed to manufacture and sell bats

with a BPF of 1.15 or lower,” eventually “the 1.15 BPF began to

be printed on the bats themselves,” and that the League

Defendants “instituted rules and regulations regarding BPF.” 

(Id. at ¶ 20.) They allege that research performed in October 2

2010 indicated that the BPF of composite barreled bats exceeded

 Nowhere in the 67-page Amended Complaint is the particular 2

significance or relevant history of “BPF of 1.15” or “compliance

with a BPF of 1.15” explained. However, a press release attached

as an exhibit to the Amended Complaint indicates that “[t]he

maximum performance standard for all non-wood bats in the

divisions for 12-year-olds and below [in Little League] is a Bat

Performance Factor (BPF) of 1.15.” (Am. Compl., Ex. A, 12-30-10

Little League Press Release; accord Am. Compl. Ex. C, 1-14-11

Babe Ruth Memo (same).)

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the listed BPF “once put into actual use,” and that the League

Defendants imposed moratoria on composite barreled bats in

December 2010 and January 2011, which were later amended to bar

from use only those composite barreled bats not on each league’s

list of approved bats. (Id. at ¶¶ 24-29.) Babe Ruth allegedly

lifted its moratorium on composite barreled bats on February 4,

2011. (Id. at ¶ 30.) 

Plaintiffs allege that they relied upon “the Manufacturer

Defendants’ advertising and marketing, the representations and

warranties contained on the packaging and labels, the

representations and warranties contained on the actual bats

themselves, and the League Defendants’ licensing, approval and

endorsement” in purchasing composite barreled bats for their

children. (Id. at ¶ 23.) They seek to represent a class

composed of

All New Jersey residents who purchased, within six

years prior to the filing of this Complaint, composite

barreled bats manufactured by the Manufacturer

Defendants which had been licensed, endorsed and/or

approved by the League Defendants and have or had been

ruled ineligible for use in Little League (Majors) 12

and Under Divisions and/or Cal Ripken Division (ages 4-

12) of Babe Rule Baseball and/or had a moratorium

placed on their use by those organizations.

(Id. at ¶ 32.) Plaintiffs allege their loss to include “the

purchase price for the composite barreled bats.” (Id. at ¶ 46.)

The basis of each of the claims against the Manufacturer

Defendants is that they allegedly advertised and marketed

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composite barreled bats as “being in compliance with the BPF of

1.15” without disclosing that such bats “would not remain in

compliance with the BPF of 1.15 once . . . actually placed in

use.” (See, e.g., id. at ¶¶ 54-55.) The factual predicate for

the claims against the League Defendants is “their licensing,

endorsement and approval that the composite barreled bats were in

compliance with a BPF of 1.15” and therefore “suitable for use in

Little League and Babe Ruth” youth baseball. (See, e.g., id. at

¶¶ 93-94, 116.)

DISCUSSION

I. 12(b)(6) Motion to Dismiss Standard

In addressing a motion to dismiss a complaint under Rule

12(b)(6), the Court must “accept all factual allegations as true,

construe the complaint in the light most favorable to the

plaintiff, and determine, whether any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). At this

stage, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible

on its face. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007)). “[W]here the well-pleaded facts do not permit the court

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to infer more than the mere possibility of misconduct, the

complaint has alleged–-but it has not ‘show[n]’–-that the

‘pleader is entitled to relief.’” Iqbal, 129 S.Ct. at 1950

(quoting Rule 8(a)(2)).

The NJCFA claim is subject to the heightened pleading

standards of Rule 9(b), which requires that “[i]n all averments

of fraud or mistake, the circumstances constituting fraud or

mistake shall be stated with particularity.” Fed.R.Civ.P. 9(b);

see Sheris v. Nissan N. Am., Inc., No. 07-2516, 2008 WL 2354908,

at *6 (D.N.J. June 3, 2008); Parker v. Howmedica Osteonics Corp.,

No. 07-2400, 2008 WL 141628, at *2 (D.N.J. Jan. 14, 2008)

(“[NJ]CFA claims sounding in fraud are subject to the

particularity requirements of Federal Rule of Civil Procedure

9(b).”) (quotation omitted). 

“The purpose of Rule 9(b) is to provide notice of the

precise misconduct with which the defendants are charged and to

prevent false or unsubstantiated charges.” Rolo v. City Inv. Co.

Liquidating Trust, 155 F.3d 644, 658 (3d Cir. 1998) (internal

quotation and citation omitted). “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.” Frederico v. Home

Depot, 507 F.3d 188, 200 (3d Cir. 2007). The allegations also

must include “who made a misrepresentation to whom and the

general content of the misrepresentation.” Lum v. Bank of Am.,

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361 F.3d 217, 224 (3d Cir. 2004). If this specific information

is not readily available, a plaintiff may use “alternative means

of injecting precision and some measure of substantiation into

their allegations of fraud.” In re Rockefeller Ctr. Props. Sec.

Litig., 311 F.3d 198, 216 (3d Cir. 2002) (quotation omitted).

The Court, in evaluating a Rule 12(b)(6) motion to dismiss

for failure to state a claim, may consider the complaint,

exhibits attached thereto, matters of public record, and

undisputedly authentic documents if the plaintiff’s claims are

based upon those documents. See Pension Benefit Guar. Corp. v.

White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

II. New Jersey Consumer Fraud Act Claims

The NJCFA provides in relevant part:

The act, use or employment by any person of any

unconscionable commercial practice, deception, fraud,

false pretense, false promise, misrepresentation, or

the 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, or with the subsequent

performance of such person as aforesaid, whether or not

any person has in fact been misled, deceived or damaged

thereby, is declared to be an unlawful practice.

N.J.S.A. § 56:8-2. The term “person” as used in the NJCFA

includes, inter alia, natural persons, partnerships,

corporations, companies, trusts, business entities and

associations. N.J.S.A. § 56:8-1(d).

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To state a NJCFA claim, a plaintiff must allege the

following elements: “(1) unlawful conduct by defendant; (2) an

ascertainable loss by plaintiff[s]; and (3) a causal relationship

between the unlawful conduct and the ascertainable loss.” 

Bosland v. Warnock Dodge, Inc., 964 A.2d 741, 749 (N.J. 2009).

Unlawful practices under the NJCFA fall into three general

categories: affirmative acts, knowing omissions, and regulation

violations. Frederico, 507 F.3d at 202 (quotation omitted). 

Intent to defraud is not necessary to show unlawful conduct by an

affirmative act of the defendant, but is an element of unlawful

practice by knowing omission of the defendant. See TorresHernandez v. CVT Prepaid Solutions, Inc., No. 08-1057, 2008 WL

5381227, at *6 (D.N.J. Dec. 17, 2008). Plaintiffs plead unlawful

conduct against the Manufacturer Defendants in the form of

knowingly omitting to disclose “that the composite barreled bats

would not remain in compliance with the BPF of 1.15” after being

broken in. (Am. Compl. at ¶¶ 55, 94.)

A. Manufacturer Defendants

The Court finds that the allegations in the Amended

Complaint lack the requisite specificity – who, what, and where – 

to sustain a cause of action under the NJCFA against any of the

Manufacturer Defendants. First, Plaintiffs’ allegations in

support of its NJCFA claim refer only to the “Manufacturer

Defendants,” without distinguishing the actions or omissions of

any one named Manufacturer Defendant from any other. (See id. at

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¶¶ 51-60.) Failure to inform each defendant as to the specific

fraudulent acts alleged against it contravenes the pleading

requirements of Rule 9(b). See Hale v. Stryker Orthopedics, No.

08-3367, 2009 WL 321579, at *6 (D.N.J. Feb. 9, 2009). Second, as

noted above, the Amended Complaint makes no specific allegations

as to the relevance and meaning of the “BPF of 1.15,” such that

it is not evident from the face of the Amended Complaint why

representations that a composite barreled bat had a BPF of 1.15

would be misleading. (Am. Compl. at ¶ 20.) See supra n.2. Nor

does the Amended Complaint make any specific allegations as to

the content of the alleged misleading advertising or marketing,

with the exception that the bats may have been stamped as having

a 1.15 BPF. (Am. Compl. at ¶ 20.)

With regard to the element of ascertainable loss,

Plaintiffs’ bare allegation that the Manufacturer Defendants

“caused Plaintiffs and the Class to suffer an ascertainable loss

in the amount of their [sic] purchase price (plus any applicable

finance charges and resulting interest) of the composite barreled

bats in question” will not carry their pleading burden. See

Franulovic v. Coca Cola Co., Nos. 07-539 & 07-828, 2007 WL

3166953, at *7 (D.N.J. Oct. 25, 2007) (holding that general

statements that defendant’s claims were misleading, without any

specifics about when, where, and for how much, and how often the

plaintiff purchased the defendant’s product, failed to establish

the requisite element of ascertainable loss); accord Solo v. Bed

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Bath & Beyond, Inc., No. 06-1908, 2007 WL 1237825, at *3 (D.N.J.

Apr. 26, 2007). Plaintiffs make no representations whatsoever as

to (1) which make and model bats were purchased, (2) from whom

the bats were purchased, and (3) when the bats were purchased. 

(Am. Compl. at ¶ 60.) 

There is also absolutely no support for Plaintiffs’

conclusory statement that the “Manufacturer Defendants’ conduct,

acts, and/or omissions as to the BPF of the composite barreled

bats have rendered the bats unusable.” (Am. Compl. at ¶ 59.) 

Because Plaintiffs have not specifically identified any of the

“composite barreled bats in question,” the Court has no way of

knowing whether the “bats in question” are even in fact banned

from use in Little League. Furthermore, Plaintiffs allege no 3

facts in support of this claim other than that the Manufacturer

Defendants represented that the composite barreled bats had a BPF

of 1.15 or lower; this allegation lacks the “aggravating

circumstances” necessary to transform what is essentially a

breach of warranty claim into a consumer fraud claim. See Suber

v. Chrysler Corp., 104 F.3d 578, 587 (3d Cir. 1997); Cox v. Sears

Roebuck & Co., 647 A.2d 454, 462 (N.J. 1994) (observing that “a

 It is evident from the face of the Amended Complaint that all 3

“bats in question” may be used in Babe Ruth games, insofar as

that league lifted its composite barreled bat moratorium for the

4-12 year old division. It further appears that a ban on certain

composite barreled bats by Little League does not, as Plaintiffs

allege, “render the bats unusable”; obviously, such bats could

still be used for a variety of purposes, such as non-Little

League play or batting practice.

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breach of warranty . . . is not per se unfair or unconscionable,”

and “substantial aggravating circumstances must be present in

addition to the breach”). The Amended Complaint alleges no facts

whatsoever from which the Court could infer that the Manufacturer

Defendants “acted with knowledge” that the composite barreled

bats would not continue to conform to the 1.15 BPF standard. 

Because “intent is an essential element of the fraud,” the NJCFA

claim must be dismissed insofar as it is brought against each of

the Manufacturer Defendants. Cox, 647 A.2d at 462. 

B. League Defendants

Plaintiffs’ NJCFA claim against the League Defendants

alleges that they “deceptively and unlawfully advertis[ed] by way

of their licensing, endorsement and approval that the composite

barreled bats were in compliance with a BPF of 1.15.” (Am.

Compl. at ¶ 93.) They assert that this was a misleading omission

because the bats “would not remain in compliance with the BPF of

1.15 once . . . actually placed in use.” (Id. at ¶ 94.)

As with the NJCFA claim asserted against the Manufacturer

Defendants, because Plaintiffs allege a fraud in the form of an

omission, they must also show that the omission was knowingly and

intentionally made. See Cox, 647 A.2d at 462; see also

Maniscalco v. Brother Int’l Corp. (USA), 627 F.Supp.2d 494, 499-

500 (D.N.J. 2009). Plaintiffs’ only factual allegation

indicating knowledge or intent by either League Defendant is that

“[i]n and around October 2010, Little League commissioned

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scientific testing . . . to evaluate the BPF of composite

barreled bats,” which allegedly showed “that composite barreled

bats exceed the BPF once put into actual use.” (Am. Compl. at ¶

25 (emphasis added).) This allegation in no way supports

Plaintiffs’ attempt to include in the putative class all New

Jersey residents “who purchased, within six years prior to the

filing of the Complaint, composite bats manufactured by the

Manufacturer Defendants,” nor does it support an inference that

the League Defendants knew and intentionally failed to disclose

that the composite barreled bats in question would eventually

exceed the stated BPF. (Id. at ¶ 32.)

The claim also fails against the League Defendants for many

of the same reasons it cannot be maintained against the

Manufacturer Defendants, including a total lack of any

“substantial aggravating circumstances” to raise this claim from

a simple breach of warranty claim to one sounding in fraud. 

Little League argues compellingly that by ordering testing of the

bats and imposing the moratorium while it conducted a process to

screen composite barreled bats for safety, it “was honest,

forthright and acted in good faith.” (Dkt. entry no. 44, Little

League Br. at 20.) The moratoria themselves show that both

League Defendants were publicly forthcoming with information

about the BPFs of composite barreled bats once those entities

themselves received that information. (See dkt. entry no. 59,

Babe Ruth Br. at 13-14.) 

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Babe Ruth points out that Plaintiffs can make no showing of

ascertainable loss as to it because its moratorium on the

composite barreled bats in question was lifted prior to the

filing of the Complaint on February 24, 2011. (Id. at 14.) No

showing of ascertainable loss has been made as to either League

Defendant, for the same reasons discussed with respect to the

Manufacturer Defendants. We further observe that Plaintiffs do

not allege with any specificity whatsoever the purported

“licensing, endorsement and approval” made by the League

Defendants, and thus have not satisfied their pleading burden

under Rule 9(b). 

Accordingly, the NJCFA claim insofar as asserted against the

League Defendants will be dismissed. Plaintiffs will be afforded

the opportunity to move for leave to file an amended pleading as

to this claim and as to both the League Defendants and

Manufacturer Defendants. Such putative amended pleading must

plead the NJCFA claim with the requisite level of particularity,

and therefore must not make the allegations generally against

“League Defendants” or “Manufacturer Defendants” in the manner

Plaintiffs have done in the Amended Complaint.

III. Breach of Express Warranty Claims

New Jersey’s Uniform Commercial Code, N.J.S.A. § 12A:2-313,

governs express warranties, and provides that

(1) Express warranties by the seller are created as

follows:

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(a) Any affirmation of fact or promise made by

the seller to the buyer which relates to the

goods and becomes part of the basis of the

bargain creates an express warranty that the

goods shall conform to the affirmation or

promise.

(b) Any description of the goods which is made

part of the basis of the bargain creates an

express warranty that the goods shall conform

to the description.

. . . 

(2) It is not necessary to the creation of an express

warranty that the seller use formal words such as

“warrant” or “guarantee” or that he have a

specific intention to make a warranty, but an

affirmation merely of the value of the goods or a

statement purporting to be merely the seller’s

opinion or commendation of the goods does not

create a warranty.

N.J.S.A. § 12A:2-313. 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 a part

of the basis of the bargain for the product, and (3) that the

product did not ultimately conform to the affirmation, promise or

description.” Snyder v. Farnam Cos., Inc., 792 F.Supp.2d 712,

721 (D.N.J. 2011). An action for a breach of an express warranty

must be commenced within four years after the cause of action has

accrued, though by agreement the parties may reduce the

limitation period to not less than one year. N.J.S.A. § 12A:2-

725(1). A cause of action accrues “when the breach occurs,

regardless of the aggrieved party’s lack of knowledge of the

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breach,” and a breach of warranty occurs “when tender of delivery

is made, except 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.” N.J.S.A. § 12A:2-

725(2). 

A. Manufacturer Defendants

The Amended Complaint alleges that the Manufacturer

Defendants breached express warranties “contained in the

Manufacturer Defendants’ advertising and marketing materials, on

the labels and packaging of the bats, and on the bats

themselves.” (Am. Compl. at ¶¶ 62-63.) Plaintiffs further

assert that “the Manufacturer Defendants’ affiliates, authorized

dealers, online retailers, and mainstream retailers similarly

featured the express warranty that the composite barreled bats

were in compliance with the BPF of 1.15,” and that this warranty

was breached because “the composite barreled bats are not in

compliance with the BPF of 1.15.” (Am. Compl. at ¶¶ 64-65.)

The Manufacturer Defendants contend that these allegations

do not satisfy Plaintiffs’ pleading burden under Rule 8. (See,

e.g., Wilson Br. at 17; dkt. entry no. 36, Easton Br. at 15; dkt.

entry no. 39, Nike Br. at 25.) The Court agrees. It is true

that Rule 8 “does not require ‘detailed factual allegations.’” 

Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). 

However, by not indicating in the Amended Complaint which bats

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were purchased, when they were purchased, what warranty

representations were made, and what warranty promises were

breached, Plaintiffs’ allegations constitute the type of

“unadorned, the-defendant-unlawfully-harmed-me” accusation that

will not pass muster under the applicable pleading standard. Id. 

The allegations in the Amended Complaint utterly lack of factual

support for the breach of warranty claims, and thus are

insufficient “to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. Even assuming, as Plaintiffs

suggest, that their allegation that the bats were stamped as

having a BPF of 1.15, that allegation, without more, does not

allow for an inference that merely having a BPF of 1.15 at the

time of manufacture and sale is the type of “affirmation of fact

or promise” for continuing compliance upon which Plaintiffs’

claim is based. 

We find that the breach of express warranty allegations are

thus subject to dismissal for failure to meet the pleading burden

imposed by Rule 8(a)(2). However, Plaintiffs will be afforded

the opportunity to move for leave to amend the Amended Complaint

to provide a sufficient factual basis for their breach of express

warranty claim insofar as they are asserted against the

Manufacturer Defendants. Such proposed amended pleading should

refrain from making collective express warranty allegations

against “Manufacturer Defendants,” but should specify the alleged

express warranties as against each remaining individual

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Manufacturer Defendant so that each Manufacturer Defendant may be

put on notice as to which warranties Plaintiffs allege to have

been breached.

More factual basis in Plaintiffs’ pleading of the breach of

express warranty claim insofar as asserted against the

Manufacturer Defendants is also necessary in order for those

defendants to form defenses based on the applicable statutes of

limitations. (See Wilson Br. at 17-18 (stating that Wilson has a

one-year warranty); Easton Br. at 16 (stating that Easton has a

400-day warranty covering “all manufacturing defects resulting

from normal usage”); Nike Br. at 27 (stating that “to the extent

that Nike opted to reduce the statute of limitations

contractually, both express and implied warranties are limited to

that period,” but because the Amended Complaint lacks factual

context, Nike has not “ascertain[ed] whether any express or

implied warranty is time barred”). 

4

B. League Defendants

The New Jersey statute governing express warranties requires

that express warranties be made by the “seller.” N.J.S.A. §

12A:2-313. A seller is defined under the statute as a “person

who sells or contracts to sell goods.” N.J.S.A. § 12A:2-

103(1)(d).

 The Court makes no finding whatsoever as to the enforceability 4

or relevance of the alleged express warranties.

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The Amended Complaint is devoid of any suggestion that the

League Defendants “sold” composite barreled bats. Rather, it

states that the League Defendants “licensed, endorsed, and

approved” them. Plaintiffs thus may not maintain their breach of

express warranty claim against the League Defendants as a matter

of law. This claim will be dismissed with prejudice as to both

League Defendants.

IV. Breach of Implied Warranty of Merchantability Claims

Plaintiffs’ claims for breach of the implied warranty of

merchantability assert that both the Manufacturer Defendants and

the League Defendants impliedly warranted that “the composite

barreled bats were in compliance with the BPF of 1.15 so as to be

fit for the ordinary purpose for which the bats were sold, namely

appropriate for use by youth baseball players in Little League

and Babe Ruth as set forth on the labels and packaging of said

bats.” (Am. Compl. at ¶¶ 68-69, 105-106.) 

New Jersey’s Uniform Commercial Code provides the cause of

action for breach of the implied warranty of merchantability,

stating in relevant part:

(1) [A] warranty that the goods shall be merchantable

is implied in a contract for their sale if the

seller is a merchant with respect to goods of that

kind. . . . 

(2) Goods to be merchantable must be at least such as 

. . . 

(c) are fit for the ordinary purposes for which

such goods are used; and . . . 

(f) conform to the promises or affirmations of

fact made on the container or label if any.

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N.J.S.A. § 12A:2-314(1), (2)(c)&(f). Thus, in order for the

implied warranty of merchantability to be breached, the product

at issue must have been defective or not fit for the ordinary

purpose for which it was intended. See Altrionics of Bethlehem,

Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir. 1992).

The warranty of merchantability is implied by law in every

contract for the sale of goods. In re Toshiba Am. HD DVD Mktg. &

Sales Practices Litig., No. 08-939, 2009 WL 2940081, at *16

(D.N.J. Sept. 11, 2009). To state a claim for breach of the

implied warranty of merchantability, Plaintiffs must allege “(1)

that a merchant sold goods, (2) which were not ‘merchantable’ at

the time of the sale, (3) injury and damages to the plaintiff or

its property, (4) which were caused proximately and in fact by

the defective nature of the goods, and (5) notice to the seller

of the injury.” In re Samsung Elecs. Am., Inc. Blu-Ray Class

Action Litig., No. 08-663, 2008 WL 5451024, at *5-6 (D.N.J. Dec.

31, 2008).

A. Manufacturer Defendants

We find that the Amended Complaint does not state a claim

for breach of the implied warranty of merchantability. Nothing

in the Amended Complaint suggests that the composite barreled

bats were defective or unfit for their ordinary purpose of

hitting baseballs. See N.J.S.A. § 12A:2-315, cmt. 2 (“[T]he

ordinary purposes for which goods are used are those envisaged in

the concept of merchantability and go to uses of which are

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customarily made of the goods in question. For example, shoes

are generally used for the purpose of walking upon ordinary

ground.”). See also supra n.3 (noting that Plaintiffs’

allegation that the bats are “unusable” is illogical, as the bats

are still usable for recreational play and batting practice). 

Nor is there any factual or legal basis for Plaintiffs’

suggestion that the ordinary purpose of the composite barreled

bats in question was for use by “youth baseball players in Little

League and Babe Ruth.” That is an alleged particular purpose,

not an ordinary one. 

The claim also fails because the Amended Complaint makes

clear that the composite barreled bats were in compliance with

the BPF of 1.15 at the time they were sold, but only exceeded the

BPF of 1.15 after a “break in” period, such there is no logical

inference to be made (and Plaintiffs have not alleged directly)

that the bats were not merchantable at the time of the sale. 

(See Am Compl. at ¶ 25 (stating that research showed composite

barreled bats “exceed the BPF once put into actual use”); id. at

¶ 27 (stating that Babe Ruth noted that research showed composite

barreled bats can exceed BPF of 1.15 after a break-in period).) 

Thus, the claim for breach of the implied warranty of

merchantability will be dismissed insofar as it is asserted

against the Manufacturer Defendants; however, Plaintiffs will be

afforded the opportunity to amend this claim.

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B. League Defendants

The claim for breach of the implied warranty of

merchantability fails insofar as it is asserted against the

League Defendants for the same reasons discussed above as to the

Manufacturer Defendants. The Court notes that an additional

basis for dismissal of that claim with respect to the League

Defendants exists. Plaintiffs do not allege that either League

Defendant is a “merchant with respect to goods of that kind,”

namely, composite barreled baseball bats. See N.J.S.A. § 12A:2-

314(1). Plaintiffs allege only that the League Defendants

“licensed, endorsed and approved” the composite barreled bats. 

Therefore, we find that the claim for implied warranty of

merchantability must be dismissed with prejudice as to the League

Defendants.

V. Breach of Implied Warranty of Fitness for a Particular

Purpose Claims

Plaintiffs’ claim for breach of the implied warranty of

fitness for a particular purpose alleges that the composite

barreled bats were “advertised, marketed, manufactured and/or

sold by the Manufacturer Defendants . . . to be used by youth

baseball players in Little League and Babe Ruth,” and that the

Manufacturer Defendants “had reason to know of the particular

purpose for which the composite barreled bats were being

purchased–for use by children in Little League and Babe

Ruth–which is why the Manufacturer Defendants advertised and

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marketed the composite barreled bats as being in compliance with

the BPF of 1.15 and authorized and/or approved by those youth

baseball organizations.” (Am. Compl. at ¶¶ 73-74.) Plaintiffs

make similar allegations that the League Defendants knew that the

bats were being purchased “for use by children in Little League

and Babe Ruth–which is why the League Defendants agreed to

license, endorse and approve the composite barreled bats as being

in compliance with the BPF of 1.15.” (Id. at ¶¶ 110-111.)

New Jersey’s Uniform Commercial Code provides the cause of

action for breach of the implied warranty of merchantability,

stating in relevant part:

Where the seller at the time of contracting has reason

to know any particular purpose for which the goods are

required and that the buyer is relying on the seller’s

skill or judgment to select or furnish suitable goods,

there is unless excluded or modified . . . an implied

warranty that the goods shall be fit for such purpose.

N.J.S.A. § 12A:2-315. To state a claim for a breach of the

implied warranty of fitness for a particular purpose, Plaintiffs

must allege that (1) the seller had reason to know the buyer’s

particular purpose; (2) the seller had reason to know that the

buyer was relying on the seller’s skill or judgment to furnish

appropriate goods; and (3) the buyer must actually rely upon the

seller’s skill or judgment. Gumbs v. Int’l Harvester, Inc., 718

F.2d 88, 92 (3d Cir. 1983).

New Jersey’s Uniform Commercial Code does not contemplate

the imposition of liability under both the implied warranty of

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merchantability and the implied warranty of fitness for a

particular purpose where the proponent argues that the ordinary

purpose and the particular purpose are the same. Lithuanian

Commerce Corp., Ltd. v. Sara Lee Hosiery, 219 F.Supp.2d 600, 615

(D.N.J. 2002) (citing N.J.S.A. § 12A:2-315, cmt. 2

(distinguishing between a good’s ordinary purpose from a

particular purpose)); see also Franulovic, 2007 WL 3166953, at *6

(“It is axiomatic that a product’s ordinary purpose cannot be the

same as its particular purpose; without that distinction, there

can be no claim for breach of implied warranty of fitness for a

particular purpose.”).

A. Manufacturer Defendants

We find that as to the Manufacturer Defendants, Plaintiffs

have not alleged facts that would support a finding that 

individual Manufacturer Defendants breached the implied warranty

of fitness for a particular purpose; Plaintiffs’ assertions are

far too vague and generalized to discern any of the conditions of

the “sale” of the composite barreled bats that might or might not

support such a claim. However, it appears that Plaintiffs may be

able to adequately re-plead this claim as to individual

Manufacturer Defendants by alleging that particular composite

barreled bats were bought by Plaintiffs, what Plaintiffs might

have implied or communicated directly to the “sellers” of the

bats about a particular purpose for which Plaintiffs sought to

purchase the bats, and whether or how Plaintiffs relied upon a

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particular seller’s – not just “Manufacturer Defendants’” – skill

or judgment in purchasing the composite barreled bats. Thus,

Plaintiffs will be provided an opportunity to amend this claim as

to the Manufacturer Defendants. Plaintiffs are advised to heed,

however, the authorities demonstrating that a plaintiff may not

allege that a good’s ordinary purpose is the same as its

particular purpose, and expect a claim for breach of the implied

warranty of fitness for a particular purpose to survive. If

Plaintiffs intend to assert claims for both types of implied

warranties, they should be pleaded in the alternative and be

based on distinct alleged ordinary and particular purposes.

B. League Defendants

Dismissal of Plaintiffs’ implied warranty of fitness for a

particular purpose fails insofar as it is asserted against the

League Defendants for the same reasons discussed above with

respect to the Manufacturer Defendants. We further find that the

League Defendants cannot be liable for breach of the implied

warranty of fitness for a particular purpose, as with Plaintiffs’

other breach of warranty claims, because Plaintiffs have not and

cannot allege that the League Defendants are “sellers” of

composite barreled baseball bats.

VI. Unjust Enrichment Claims

The Amended Complaint pleads claims for unjust enrichment

against both the Manufacturer Defendants and the League

Defendants. Plaintiffs seek restitution from the Manufacturer

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Defendants of the “earned profits by the sale of composite

barreled bats that do not meet the BPF of 1.15,” and from the

League Defendants of the “earned licensing fees and/or royalties

and/or any other type of compensation from the Manufacturer

Defendants for advertising that the composite barreled bats were

licensed, approved and endorsed by the League Defendants.” (Am.

Compl. at ¶¶ 81-82, 117-119.) 

New Jersey law does not recognize unjust enrichment as an

independent tort cause of action. Torres-Hernandez, 2008 WL

5381227, at *9. Rather, under New Jersey law, 

to establish unjust enrichment: a plaintiff must show

both that defendant received a benefit and that retention

of that benefit without payment would be unjust. The

unjust enrichment doctrine requires that plaintiff show

that it expected remuneration from the defendant at the

time it performed or conferred a benefit on defendant

and that the failure of remuneration enriched defendant

beyond its contractual rights.

Va. Sur. Co. v. Macedo, No. 08-5586, 2009 WL 3230909, at *11

(D.N.J. Sept. 30, 2009); see also VRG Corp. v. GKN Realty Corp.,

641 A.2d 519, 526 (N.J. 1994).

The Amended Complaint contains no facts that could support

an inference that Plaintiffs had any expectation of remuneration

from either the Manufacturer Defendants or the League Defendants

at the time they allegedly purchased the composite barreled bats

in question. It is presented as a tort-based theory of recovery,

in that Plaintiffs do not allege that they did not receive the

composite barreled bats they purchased, but rather that the

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Manufacturer Defendants and League Defendants misrepresented that

the composite barreled bats were in compliance with the BPF of

1.15 and were suitable for use in organized youth baseball. See

Warma Witter Kreisler, Inc. v. Samsung Elec. Am., Inc., No. 08-

5380, 2009 WL 4730187, at *7 (D.N.J. Dec. 3, 2009) (holding that

unjust enrichment claim of plaintiff claiming to have been misled

by defendant as to fitness of product purchased “sound[ed] in

tort” and thus was not cognizable under New Jersey law); see also

Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris,

Inc., 171 F.3d 912, 936 (3d Cir. 1999). Therefore, Plaintiffs

have not stated a claim for unjust enrichment. See Cafaro v.

HMC, No. 07-2793, 2008 WL 4224801, at *12 (D.N.J. Sept. 8, 2008). 

An additional basis for dismissing the unjust enrichment

claim insofar as it is brought against the League Defendants

exists. Plaintiffs allege that the Manufacturer Defendants, not

Plaintiffs, conferred a benefit on the League Defendants in the

form of “licensing fees and/or royalties.” (Am. Compl. at ¶

118.) This allegation cannot support a claim for unjust

enrichment against the League Defendants. See Eli Lilly & Co. v.

Roussell Corp., 23 F.Supp.2d 460, 496 (D.N.J. 1998) (“[I]t is the

plaintiff’s (as opposed to a third party’s) conferral of a

benefit on defendant which forms the basis of an unjust

enrichment claim.”).

A claim of unjust enrichment also requires that the

plaintiff allege a sufficiently direct relationship with the

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defendant to support the claim. See Maniscalco, 627 F.Supp.2d at

505-06 (dismissing unjust enrichment claims brought by purchasers

of all-in-one printer devices against printer manufacturer,

because plaintiffs did not allege that they purchased the

printers from the defendant manufacturer, but rather conceded to

have purchased the printers from a third-party national retail

chain). Such a direct relationship is lacking here with respect

to the League Defendants, as Plaintiffs do not allege that they

purchased any composite barreled bats from the League Defendants,

and is not alleged with any specificity as to any Manufacturer

Defendant. Plaintiffs allege that they purchased the composite

barreled bats (1) directly from “[c]ertain of the Defendant

Manufacturers . . . via their web sites,” (2) from “authorized

dealers,” and (3) from “authorized online retailers.” (Am.

Compl. at ¶¶ 16-18.) Thus, Plaintiffs’ unjust enrichment claims

to the extent they concern composite barreled bats purchased from

any retailer besides one of the Manufacturer Defendants

themselves fail under New Jersey law. Cooper v. Samsung Elec.

Am., Inc., No. 07-3853, 2008 WL 4513924, at *10 (D.N.J. Sept. 30,

2008) (“[A]lthough [plaintiff] alleges that Samsung was unjustly

enriched through the purchase of the television, there was no

relationship conferring any direct benefit on Samsung through

[plaintiff’s] purchase, as the purchase was through a retailer,

Ultimate Electronics.”). 

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Plaintiffs’ claims for unjust enrichment will be dismissed

with prejudice as to both the Manufacturer Defendants and the

League Defendants.

VII. Negligence Claims

Both the Manufacturer Defendants and the League Defendants

assert that Plaintiffs’ negligence claims against them must be

dismissed pursuant to the economic loss doctrine. The Court

agrees.

The economic loss doctrine precludes a buyer of a product

seeking damages for economic loss from asserting a negligence or

strict liability claim. Spring Motors Distribs., Inc. v. Ford

Motor Co., 489 A.2d 660, 663 (N.J. 1985). Because a buyer of

products has adequate remedies under the Uniform Commercial Code,

a “comprehensive system for compensating consumers for economic

loss arising from the purchase of defective products,” a “tort

cause of action for economic loss duplicating the one provided by

the U.C.C. is superfluous and counterproductive.” Alloway v.

Gen. Marine Indus., L.P., 695 A.2d 264, 268, 275 (N.J. 1997).

This case presents a claim for negligence that is barred by

the economic loss doctrine, insofar as “the Uniform Commercial

Code provides a consumer buyer the exclusive remedy for direct

economic loss resulting from conduct that constitutes the breach

of express or implied warranties.” D’Angelo v. Miller Yacht

Sales, 619 A.2d 689, 691 (N.J. App. Div. 1993). Plaintiffs’

negligence claim against the Manufacturer Defendants states that

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Plaintiffs’ damages were solely “the purchase price and applicable

interest.” (Am. Compl. at ¶ 87.) The negligence claim against

the League Defendants makes refers to the League Defendants’

“acknowledged . . . duty of care to protect the safety of their

players,” but there is no allegation of damages relating to

player safety, and this claim itself merely states with regard to

damages that the “League Defendants’ negligence was the proximate

cause of damages suffered by the Plaintiffs and the Class,” and

it is clear from the rest of the Amended Complaint that the only

“damage” claimed here is the purchase price of the bats (which,

again, are unspecified). (Am. Compl. at ¶¶ 124, 128.) 

5

The Court concludes that there is no basis for a negligence

claim on the facts alleged. See Alloway, 695 A.2d at 267

(stating that “economic loss encompasses actions for . . . the

 Plaintiffs’ allegation that Babe Ruth violated its “duty of 5

care to protect the safety of their players” by “cav[ing] to the

pressure from the Manufacturer Defendants by rescinding the

moratorium on the composite barreled bats just three weeks after

the moratorium was enacted,” with the result that players were

able to use the bats in Babe Ruth, will not state a claim for

negligence against Babe Ruth. (Am. Compl. at ¶¶ 121-128; cf.

id. at ¶ 87.) Youth baseball players are not parties to this

case, and for Plaintiffs to invoke player safety as a basis for a

negligence claim directly conflicts with Plaintiffs’ assertion

that they have suffered damages as a result of not being able to

use the bats because of the safety-based moratoria and “approved”

lists utilized by the League Defendants when they became aware of

the issue. As Babe Ruth points out, its lifting of the

moratorium resulted in “Plaintiffs [being] able to use the

composite barreled bats that now form the basis of this

Complaint,” such that it is incongruous for Plaintiffs to suggest

that the lifting of the moratorium was a breach of duty to

Plaintiffs and/or the proximate cause of their damages. (Babe

Ruth Br. at 22.)

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diminution in value of the product because it is inferior in

quality and does not work for the general purposes for which it

was manufactured and sold”) (internal quotation omitted). It is

both barred by the economic loss doctrine, and in any event, the

Amended Complaint merely conclusorily recites the elements of

negligence and is devoid of any supporting facts from which the

Court could plausibly infer that either the League Defendants or

Manufacturer Defendants are liable to Plaintiffs. Plaintiffs’

negligence claim will therefore be dismissed with prejudice as to

the Manufacturer Defendants and the League Defendants.

VIII. League Defendants’ Charitable Immunity Defense

The League Defendants assert that Plaintiffs are barred from

recovering against them under the New Jersey Charitable Immunity

Act, N.J.S.A. § 2A:53A-7. (Little League Br. at 21; Babe Ruth

Br. at 22-23.) The Charitable Immunity Act states provides:

No nonprofit corporation, society or association

organized exclusively for religious, charitable or

educational purposes . . . shall . . . be liable to

respond in damages to any person who shall suffer

damage from the negligence of any agent or servant of

such corporation, society or association, where such

person is a beneficiary, to whatever degree, of the

works of such nonprofit corporation, society or

association; provided, however, that such immunity from

liability shall not extend to any person who shall

suffer damage from the negligence of such corporation,

society, or association or of its agents or servants

where such person is one unconcerned in and unrelated

to and outside of the benefactions of such corporation,

society or association.

N.J.S.A. § 2A:53A-7(a).

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Because the Court has found that Plaintiffs’ negligence

claim must be dismissed with prejudice, the Court need not reach

the question of whether the League Defendants are entitled to

charitable immunity.

CONCLUSION

For the foregoing reasons, the separate motions to dismiss

will be granted. The Amended Complaint will be dismissed insofar

as it is asserted against both the Manufacturer Defendants and

the League Defendants.

Plaintiffs will be given leave to move before the Magistrate

Judge for leave to file a Second Amended Complaint within fortyfive (45) days. Such putative motion should (1) attach the

proposed amended pleading, as required by Local Civil Rule

7.1(f), and (2) be accompanied by a brief addressing the standard

for leave to amend under Rule 15(a)(2), particularly why such

amendment would not be futile in light of this Memorandum

Opinion. The proposed amended pleading may not assert any of the

causes of action that the Court has indicated will be dismissed

with prejudice.

The Court will issue an appropriate Order and Judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: December 23, 2011

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