Opinion
99 Civ. 9225 (TPG).
December 22, 2000.
OPINION
This diversity action challenges defendant's actions with regard to a Purchase Agreement pursuant to which plaintiff purchased defendant's pellet mill manufacturing business. The Amended Complaint makes claims sounding in fraudulent inducement, breach of contract, breach of implied warranty of good faith and fair dealing, and breach of express warranty. Defendant has moved to dismiss the complaint for failure to state a claim. The motion is granted in part and denied in part.
The Amended Complaint
The following allegations are taken from the Amended Complaint. The Court will assume that the allegations in the Amended Complaint are true for the purpose of deciding this motion to dismiss. The Amended Complaint incorporates the Purchase Agreement by reference.
Defendant Ingersoll-Rand ("IR") was engaged in the design, manufacture and marketing of pelleting, flaking, filtration and sugar processing equipment primarily through a domestic subsidiary, California Pellet Mills, but also through several subsidiaries and joint ventures throughout the world (the aggregate of these domestic and foreign subsidiaries is referred to as the "CPM business'). Among these was CPM-Zhengchang Liyang Machinery Company Ltd., a Chinese joint venture company ("China JV") which is the subject of the present dispute. Zhengchang Liyang Machinery Company Ltd. ("ZC") was defendant's partner in the China JV. As part of its contribution to the China JV, defendant permitted the China JV to use CPM patents, other intellectual property and trademarks to design, manufacture and sell processing equipment. Defendant retained ownership of these patents, other intellectual property and trademarks.
In the spring of 1996 defendant placed its CPM business up for sale. Plaintiff Gencor Industries entered into negotiations to purchase defendant's CPM assets. It was plaintiffs stated intent to purchase exclusive control over defendant's CPM patents, other intellectual property and trademarks that were used to design, manufacture and market the processing equipment of the CPM business. It was crucial to plaintiffs decision to purchase defendant's CPM business that plaintiff would not suffer competition from any other party using these patents, other intellectual property and trademarks. Defendant assured plaintiff that this would be the case.
Defendant and ZC had a number of serious disputes related to the operation of the China JV. ZC had breached the Joint Venture Agreement by manufacturing and selling imitation processing equipment based on defendant's patents, although defendant never pursued any rights under the Joint Venture Agreement to remedy the breach. ZC accused defendant of breaching the Joint Venture Agreement, and the government of China had concluded that defendant had defrauded ZC by falsifying the value of defendant's contribution to the joint venture. The disputes between defendant and ZC had grown so severe that ZC built a five-foot wall down the middle of the factory used by the joint venture to remedy the "short changing" that it felt it had been receiving from defendant. ZC had also repudiated the Joint Venture Agreement itself.
Defendant did not disclose any of the ongoing disputes related to the China JV to plaintiff during the negotiations leading to the Purchase Agreement. Defendant also did not disclose that ZC was improperly using defendants patents to manufacture imitation processing equipment.
Initial negotiations between defendant and plaintiff contemplated the sale of defendant's interest in the China JV to plaintiff. However, the China JV was operated under a Joint Venture Agreement that required ZC's consent to any such transfer. Defendant told plaintiff that getting ZC's consent to the transfer of defendant's interest in the China JV would not be a problem. However, defendant did, in fact, have substantial difficulty obtaining ZC's consent. Defendant continued to assure plaintiff that the sale of defendant's interest in the China JV would be approved but that if it was not, the China JV would be liquidated. In any event, defendant assured plaintiff that it would not have to endure competition from the continued use by ZC of the CPM patents, intellectual property and trademarks.
Defendant and plaintiff entered into a Purchase Agreement, dated August 12, 1996, pursuant to which plaintiff purchased the CPM business from defendant. Defendant and plaintiff decided that it was undesirable to allow the delay in obtaining ZC's consent to delay the closing of the agreement. The parties agreed that plaintiff would give defendant a letter of credit or place an amount in escrow equal to the value of the China JV.
The Purchase Agreement provided for three options with regard to the China JV. The first called for the sale of defendants interest in the China JV to plaintiff, subject to ZC's consent. The second required defendant to liquidate the China JV and transfer its assets to plaintiff. Under these two scenarios, defendant would receive the value of the letter of credit or the amount in escrow. The third option provided that if defendant could not transfer its interest in or the assets of the China JV to plaintiff within nine months of the closing date, the value of the joint venture would be deducted from the purchase price. Under this scenario, the letter of credit would lapse or plaintiff would keep the amount placed in escrow. This option was predicated on defendant's representations that the China JV would be completely liquidated within nine months of closing.
Plaintiff would not have entered into the Purchase Agreement as written had these representations not been made. Defendant knew at the time of closing that it would be unable to get consent to the transfer and would be unable or unwilling to liquidate the China JV.
After failing to procure ZC's consent to the transfer, defendant attempted to unilaterally transfer its interest in the China JV to plaintiff. ZC rejected this transfer. As the price for giving its consent to transfer, ZC demanded that the Joint Venture Agreement be renegotiated on terms unacceptable to plaintiff. Nine months after the closing date, defendant had failed to transfer its interest in the China JV to plaintiff.
Under the Joint Venture Agreement, defendant had the right to resolve some of its disputes with ZC by, among other things, commencing binding arbitration in Singapore. Defendant also had the right to unilaterally terminate the China JV. Defendant did not pursue these remedies either before the execution of the Purchase Agreement or after. ZC continued to manufacture imitation pellet manufacturing equipment in contravention of the Joint Venture Agreement's provisions regarding ZC's use of defendant's patents. Defendant permitted ZC to appropriate proprietary technology by copying technical drawings, and by either taking or copying proprietary machinery contributed to the China JV by defendant.
Defendant allowed ZC to make claims to customers that it was manufacturing processing equipment that "is in design and principle the same as CPM," and that ZC was "manufacturing feedmill equipment and plants under transnational management formed [under] a joint venture with CPM . . . since eight years ago." Plaintiff repeatedly asked defendant to exercise its rights under the Joint Venture Agreement to stop ZC from using the technology that plaintiff purchased from defendant. Defendant refused to do so because it feared that doing so would jeopardize its other business interests in the People's Republic of China. By refusing to take action, defendant allowed ZC to become a competitor with plaintiff.
Defendant, as of the time of the Amended Complaint, was engaged in negotiating a sale of its assets in the China JV to ZC. Such a sale would allow ZC to claim that it was a legitimate successor to the CPM technology. In addition, such a sale would foreclose many of defendant's remedies for ZC's breaches of the Joint Venture Agreement.
Following the closing of the Purchase Agreement, the China JV continued to manufacture and sell processing equipment using CPM proprietary technology and trademarks that defendant had sold to plaintiff. Defendant retained the right to control the China JV.
The Purchase Agreement contained several relevant provisions not heretofore mentioned. Paragraph 5.3 of the Purchase Agreement states: "Parent and Buyer will cooperate and use their respective best efforts to fulfill the conditions precedent to the other party's obligations hereunder, including but not limited to securing as promptly as practicable all consents, approvals, waivers and authorizations required in connection with the transactions contemplated hereby."
Paragraph 5.11 of the Purchase Agreement states: "For a period of three (3) years from the Closing, Parent shall not, directly or indirectly through one or more of its Subsidiaries, engage in the manufacturing, sale or provision of any goods or services offered by [the CPM business] as of the date of this Agreement; provided, however, that this Section 5.11 shall not prohibit Parent or its Subsidiaries from . . . taking any other actions expressly contemplated by this Agreement."
Paragraph 10.6 of the Purchase Agreement states: "This Agreement (including all Schedules and Annexes hereto and the Ancillary Agreements) contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, except for the Confidentiality Agreement. . . ."
Paragraph 3.20 of the Purchase Agreement states: "Except for the representations and warranties contained in this Article III, neither Parent nor any other Person makes any other express or implied representation or warranty on behalf of Sellers."
Section 3.6 of the Purchase Agreement required defendant to make certain disclosures relating to the China JV. In Schedule 3.6(c), defendant made the following disclosures in response to this requirement:
The CPM joint venture in China is currently subject to discussions relative to:
(a) The Chinese government's revaluation of the assets contributed by CPM to this venture
(b) A potential breach of contract by the joint venture party, relative to the transition agreement.
This venture may be dissolved, and management is studying a potential 100% owned China facility.
Section 2.11 of the Purchase Agreement required that defendant update these disclosures as of September 20, 1996, but no later than November 30, 1996, ten days before the closing of the agreement. As of the closing, defendant had not made any changes to Schedule 3.6(c).
Plaintiff claims that prior to the closing, defendant knew that the following facts that should have been disclosed in Schedule 3.6(c): (1) ZC had materially breached, and continued to breach, the Joint Venture Agreement; (2) ZC was misusing CPM proprietary technology and intellectual property to manufacture imitation processing equipment; (3) the Chinese government had conducted a review and decided that defendant had defrauded ZC by falsifying the value of defendant's contribution to the joint venture; (4) the business of the China JV was no longer being conducted jointly; and (5) ZC had repudiated the Joint Venture Agreement.
Plaintiffs Claims for Relief
On the basis of the foregoing factual allegations, plaintiff asserted asserts five Claims for Relief. The First Claim for Relief is for fraud in the inducement. The Second Claim for Relief is for breach of contract. The Third Claim for Relief is for breach of contract with specific reference to the noncompete clause. The Fourth Claim for Relief is for breach of contract with specific reference to breach of the duty of good faith and fair dealing. The Fifth Claim for Relief is for breach of contract with specific reference to breach of express representations and warranties.
Plaintiff asks for judgment on all these claims in the form of monetary damages, but on the third and fourth claims also requests a preliminary injunction preventing the transfer of the China JV, a mandatory injunction requiring defendant to take steps, including arbitration, to remedy ZC's unlawful use of the CPM intellectual property and proprietary technology, and an injunction preventing defendant from liquidating the China JV.
Discussion
The Purchase Agreement provides for the application of New York law to any claims arising from it. Neither party has argued for the application of any other law. The Court will apply New York law to these claims.
In deciding a motion to dismiss for failure to state a claim, all material allegations composing the factual predicate of the action are taken as true. Thus where it is beyond doubt that plaintiff can prove no set of facts in support of its claim which would warrant relief, the motion for judgment on the pleadings must be granted. H.J. Inc. v. Northwestern Bell Tel., Co., 492 U.S. 229, 250 (1989).
The First Claim for Relief
The First Claim for Relief alleges fraud in the inducement. Plaintiff claims that defendant made the following misrepresentations to plaintiff regarding the status of the China JV in order to induce plaintiff to enter into the Purchase Agreement:
(1) "[O]btaining ZC's consent [to transfer IR's interest in the China JV] would not present any problems" (Amended Complaint ¶ 15). Defendant "could . . . obtain ZC's consent for the stock transfer." (¶ 17). ZC's consent "would be forthcoming" even though, according to defendant, "it would take longer than anticipated to obtain ZC's consent" and "there were some minor difficulties in obtaining the needed consent." (¶ 15). Ultimately, defendant never obtained ZC's consent to the transfer.
(2) In the context of its Schedule 3.6(c) disclosures, defendant stated that there was "[a] potential breach of contract by the joint venture party, relative to the transition agreement." (¶ 18). This statement allegedly understates defendant's knowledge of the breach as well as the seriousness of it.
(3) Defendant claimed that it "intended to completely end the activities of the China JV" (¶ 15), and "the China JV would be completely liquidated by [defendant] within nine months of the closing" if Defendant could not secure ZC's consent to transfer or wind-up the China JV (¶ 16). In fact, defendant continues to be involved in the China JV as of the date of this motion.
(4) Defendant represented that "in purchasing the CPM Business, Plaintiff would not be faced with any competition from the China JV or from ZC, in China or elsewhere involving [CPM] Company technology-based processing equipment." (¶ 15). In fact, plaintiff faces competition from both these entities.
Plaintiff alleges that it relied on the above representations in making its decision to purchase the CMP business from defendant. Plaintiff claims that if it had known the truth, it would not have entered into the Purchase Agreement as written.
Defendant contends that the parole evidence rule prevents any reference to the alleged misrepresentations as a ground for relief. Defendant also contends that, even if these alleged misrepresentations could give rise to a claim of fraud in the inducement, the only available relief would be rescission.
The Court agrees with the latter contention. See Meinrath v. Singer Company, 482 F. Supp. 457, 461 (S.D.N.Y. 1979). The claim must be dismissed.
The Second Claim for Relief
Plaintiff claims that defendant is in breach of its contractual obligations under the PA. Although the Second Claim for Relief does not clearly state which contractual obligations defendant breached, a reading of the Amended Complaint reveals several breach of contract allegations. Plaintiff claims that defendant breached the clauses of the Purchase Agreement requiring defendant, after learning that ZC would not consent to transfer of IRs interest in the China JV, to liquidate the China JV and deliver its assets to plaintiff. In addition, plaintiff alleges that defendant breached its obligation under the PA to update its disclosures in Schedule 3.6(c) of the PA, relating to the disputes within the China JV. Plaintiff claims that defendant breached section 2.7(c)(ii) of the Purchase Agreement when defendant tried to unilaterally transfer its interest in the China JV to plaintiff. Finally, plaintiff alleges that defendant breached Section 2.7(c)(i)(C) of the Purchase Agreement. The Amended Complaint states that Section 2.7(c)(i)(C) required defendant to make a good faith effort to terminate the China JV and deliver its assets to plaintiff, and that defendant failed to do this. Defendant argues that these claims should be dismissed because they are not set forth with sufficient specificity.
Defendant contends that the Amended Complaint is not sufficiently specific with respect to the Second Claim for Relief. The Court disagrees.
Plaintiff claims that defendant breached its obligation to either transfer its interest in the China JV or its assets to plaintiff. The Amended Complaint states: "once it became clear that ZC was not going to grant its consent to the transfer of Ingersoll-Rand's interest in the China JV, under the Purchase Agreement, Ingersoll-Rand was obligated to terminate the China JV, liquidate it and deliver its assets to Plaintiff. Had Ingersoll-Rand adhered to its contractual obligations and promptly terminated the China JV, ZC would not now be the competitive threat to Plaintiff that Ingersoll-Rand permitted it to become."
This claim must be dismissed because the Purchase Agreement clearly contradicts plaintiffs assertion that an agreement of this sort existed. The Purchase Agreement provides for a third option in the event that the China JV was not transferred or liquidated within nine months of the closing. The third option allows a deduction from the purchase price in the amount of the going concern value of the China JV. It states:
In the event the transfer to Buyer of the CPM China JV stock or the assets distributed in connection with the liquidation of CPM China JV has not occurred within nine months of the Closing Date, the sale of the CPM China JV Stock will be excluded from the transactions contemplated hereby without any obligation by either party with respect thereto and the Deposit (or other form of guaranty) shall be released.
The existence of this third option contradicts plaintiffs claim that defendant was obligated to either transfer its interest in the China JV or liquidate the China JV, exclusive of all other actions. Because this language provides for an alternative to either a transfer of the defendant's interest in the China JV or liquidation, plaintiffs claim must fail.
Plaintiff claims that defendant breached its obligation to update the disclosures in Schedule 3.6(c). The Amended Complaint states:
Pursuant to Article 2.11, it was required to be updated as of September 20, 1996 and no later than as at November 30, 1996, ten days prior to the December 10, 1996 closing of Plaintiff's purchase of the CPM Business. As of the closing, Ingersoll-Rand had not made any changes to the warrant and representation contained in Schedule 3.6(c) related to the China JV.
Section 2.11 of the Purchase Agreement states: "By September 24, 1996, Parent shall deliver to Buyer updated versions of Schedules . . . 3.6(c) . . . such updated versions to indicate specific additions and deletions, so that such updated Schedules are current as of September 20, 1996." Plaintiff does not state with any specificity that Schedule 3.6(c) was inaccurate as of September 20, 1996, or if it was, in what way. Section 2.11 does not require defendant to disclose all material facts relevant to the China JV, nor even a defined subset of those facts. It is unclear from the Amended Complaint how any of the facts alleged by plaintiff to have been concealed would serve to update the disclosures actually made in Schedule 3.6(c). The Purchase Agreement does not require defendant to provide any additional facts relative to the China JV. Therefore, plaintiffs allegation that defendant did not update Schedule 3.6(c) fails to make a sufficient claim for breach of contract.
Plaintiff claims that defendant breached section 2.7(c)(ii) of the Purchase Agreement when defendant tried to unilaterally transfer its interest in the China JV to plaintiff. The Amended Complaint alleges that Section 2.7(c)(ii) requires plaintiffs prior consent to any transfer that would have an adverse effect on plaintiff.
Section 2.7(c)(ii) of the Purchase Agreement does not require plaintiffs prior consent to any transfer which has an adverse effect on plaintiff. It states:
Parent will be responsible for obtaining the consents necessary for the transfer of the CPM China JV and Buyer will cooperate to the extent reasonably necessary in obtaining such consents. In the event any consent contains conditions which may have an adverse effect on Buyer, Buyer will have the right to consent to such conditions, such consent not be unreasonably withheld.
Plaintiff argues that, in light of the ongoing problems with the China JV, defendant's attempt to unilaterally transfer the China JV to plaintiff would work an adverse effect on plaintiff. However, this section clearly requires plaintiff's consent only when ZC's consent to the transfer imposes conditions on the transfer that would be adverse to plaintiff. That an attempted unilateral transfer would have had an adverse effect on plaintiff is not enough to invoke any obligation under Section 2.7(c)(ii) because ZC never consented to the transfer.
Plaintiff claims that defendant breached section 2.7(c)(i)(C) of the Purchase Agreement which, plaintiff claims, required defendant to make a good faith effort to terminate the China JV and deliver its assets to plaintiff.
Section 2.7(c)(i)(C) states:
In the event Parent determines that the CPM China JV cannot or will not be transferred and that the CPM China JV is to be liquidated, Parent shall cause at its expense all assets received by the owner of the CPM China JV Stock in connection with such liquidation to be assigned and delivered to such location in Asia designated by Buyer. Upon receipt of evidence of such assignment and delivery, the Escrow Agent shall remit the Deposit less the book value as reflected on the Adjusted Closing Balance Sheet of the technology transferred to the CPM China JV by CPM and its Affiliates (including interest on such net amount) to Parent.
This section does not in any way mandate the liquidation of the China JV, nor even good faith efforts at such liquidation. The first sentence of the section leaves the decision to liquidate the China JV squarely in the discretion of defendant, reading "[i]n the event that Parent determines . . . that the CPM China JV is to be liquidated. . . ." Thus, if defendant does not determine that the China JV should be liquidated, this section is not invoked. Because the section was never triggered, defendant could not possibly have breached it.
Plaintiffs Second Claim for Relief is dismissed.
The Third Claim for Relief
The Third Claim for Relief is for breach of contract with specific reference to breach of the non-compete provision of the PA. The Amended Complaint alleges that, through its inaction in response to ZC's unlawful use of CPM intellectual property and proprietary technology, defendant has allowed its partner to compete directly with plaintiff in the People's Republic of China and elsewhere. Plaintiff claims that by doing so, defendant breached section 5.11 of the Purchase Agreement.
Section 5. 11 of the Purchase Agreement states:
for a period of three (3) years from the Closing, Parent shall not, directly or indirectly through one or more of its Subsidiaries, engage in the manufacturing, sale or provision of any goods or services which compete with any manufacturing, goods or services offered by [plaintiff] as of the date of this Agreement; provided, however, that this Section 5.11 shall not prohibit . . . taking any other actions expressly contemplated by this Agreement.
Plaintiff argues that this section prohibits defendant from allowing ZC to compete with plaintiff. However, plaintiff does not allege that ZC is a subsidiary of defendant and does not allege that defendant itself is engaged in the manufacturing, sale or provision of any goods that plaintiff provides. Plaintiff seems to argue that defendant should have used its influence over ZC to prevent ZC, as an independent operation, from using defendant's property to compete with plaintiff. However, section 5.11 does not require defendant to enforce its intellectual property rights to prevent third parties from competing with plaintiff. Therefore, defendant cannot be said to be in breach of the noncompete provisions of the Purchase Agreement in this regard.
Plaintiff also alleges that defendant breached the non-compete provision of the Purchase Agreement through its continued ownership of an interest in the China JV, in light of the fact that the China JV continues to compete with plaintiff in the People's Republic of China and elsewhere. Because the China JV is arguably a subsidiary of defendant, this claim more clearly alleges a violation of the non-compete provision of the Purchase Agreement.
However, defendant argues that the provision creates an exception for "taking any other actions expressly contemplated by this agreement," and that the continued ownership and operation of the China JV by defendant was expressly contemplated by the Purchase Agreement. Thus, defendant argues, its continued ownership and operation of the China JV cannot be said to be in breach of the Purchase Agreement's non-compete provision.
It is not clear whether the continued ownership and operation of the China JV was an action expressly contemplated by the Purchase Agreement. The actions the Purchase Agreement expressly contemplates with regard to the China JV are the transfer of ownership in the China JV and the transfer of the assets of the China JV. The Purchase Agreement makes provisions for a reduction in the purchase price if neither of those things occur, but it is not clear that it expressly contemplates the defendant's continued competition with the plaintiff through operation of the China JV.
A contract term that is susceptible of two different meanings is considered ambiguous. Kemelhor v. Penthouse, 689 F. Supp. 205, 212 (S.D.N.Y. 1988). Extrinsic evidence may be offered to resolve ambiguity, even in an integrated document. Proteus Books v. Cherry Lane Music, 873 F.2d 502, 509-10 (2d Cir. 1989).
It is ambiguous whether the Purchase Agreement contemplates continued ownership of the China JV by defendant. Because of this ambiguity, the parties should be allowed to introduce extrinsic evidence to clarify their intents. The application to dismiss the claim for breach of the non-compete clause is denied.
The Fourth Claim for Relief
The Fourth Claim for Relief is for breach of contract with specific reference to breach of the duty of good faith and fair dealing. Plaintiff claims that defendant breached the duty of good faith and fair dealing in several respects. First, plaintiff claims that defendant breached this duty "by not terminating the China JV as a matter of right." Second, plaintiff claims that defendant breached the duty of good faith and fair dealing by "permitting ZC to become a competitor of plaintiff through the use of CPM proprietary technology and trademarks." Finally, plaintiff claims that defendant breached the duty of good faith and fair dealing by "not performing in good faith its obligations under the Purchase Agreement."
A covenant of good faith and fair dealing is implied in all contracts under New York law. Carvel Corp. v. Diversified Management Group, 930 F.2d 228, 230 (2d Cir. 1991). "The boundaries set by the duty of good faith are generally defined by the parties' intent and reasonable expectations in entering the contract." Cross Cross Properties, Ltd. v. Everett Allied Co., 886 F.2d 497, 502 (2d Cir. 1989). However, the duty of good faith can never imply obligations that would be inconsistent with express provisions of the contract. Lake Erie Distributors, Inc. v. Martlet Importing Co., 634 N.Y.S. 599, 602 (App.Div. 1995). Additionally, the duty of good faith and fair dealing cannot be used to create new contractual rights between the parties. In re Houbigant, 914 F. Supp. 964, 995 (S.D.N.Y. 1995). Moreover, a claim for breach of the implied covenant of good faith and fair dealing should be dismissed as redundant where the actions on which the claim is based are also the predicate for breach of an express provision of the contract. ICD Holdings S.A. v. Frankel, 976 F. Supp. 234, 243 (S.D.N.Y. 1997).
Plaintiff first claims that by not terminating the China JV, defendant breached the duty of good faith. As discussed above, plaintiff has also claimed that by not terminating the China JV, defendant breached the Purchase Agreement. Because these two claims are predicated on the same action by defendant, the claim alleging a breach of the duty of good faith should be dismissed as redundant. Plaintiff tries to cure this redundancy by arguing that the claim for breach of duty of good faith is broader than the breach of contract claim, in that it could encompass the failure of defendant to try to terminate the China JV. The Amended Complaint does not allege that defendant failed to try to terminate the China JV; it alleges that defendant failed to terminate it. This is precisely what is alleged by the breach of contract claim. Thus, the claim for breach of duty of good faith is dismissed.
Plaintiff also claims that defendant breached the duty of good faith and fair dealing by permitting ZC to become a competitor of plaintiff through its use of CPM proprietary technology and patents. These claims are beyond the scope of the Purchase Agreement. It may be true that defendant allowed ZC to improperly use CPM proprietary technology and trademarks, and that such use ultimately damaged plaintiff. However, nothing in the Purchase Agreement can be understood to preclude competition between ZC, which is not a party to the Purchase Agreement, and plaintiff. This is true even if such competition was preventable or even illegal. Although the Purchase Agreement provides for the possibility of the continued ownership of the China JV by defendant, there are no provisions for the relationship between plaintiff and ZC on an ongoing basis. The duty of good faith cannot create such provisions where they are completely absent from the contract itself.
The Fourth Claim for Relief is dismissed.
The Fifth Claim for Relief
Plaintiff's Fifth Claim for Relief states, generally, that defendant "breached express representations and warranties that it made to [plaintiff] in order to induce [plaintiff's] purchase [of] the CPM business." The Fifth Claim for Relief does not specify what representations and warranties are referred to, and it is not clear from the rest of the Amended Complaint what is meant by this claim. The Fifth Claim for Relief is dismissed with leave to replead more specifically.
Conclusion
The First, Second, and Fourth Claims for Relief are dismissed. The motion to dismiss the Third Claim for Relief is denied insofar as it alleges that the China JV is competing with plaintiffs CPM business in contravention of the Purchase Agreement. The Fifth Claim for Relief is dismissed with leave to replead more specifically.
SO ORDERED.