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noting that the consumer-oriented requirement is satisfied "if the challenged conduct potentially affect similarly-situated consumers" (quoting Oswego, 85 N.Y.2d at 26-27)
Summary of this case from Tropical Sails Corp. v. Yext, Inc.Opinion
No. 11 Civ. 4509 (RJS)
03-18-2013
BETH ISRAEL MEDICAL CENTER, et al., Plaintiffs, v. VERIZON BUSINESS NETWORK SERVICES, INC. et al., Defendants.
Plaintiffs are represented by Marvin Wexler, Lawrence C. Fox, and Emily Rosdeitcher of Kornstein Veisz Wexler & Pollard LLP, 757 Third Avenue, New York, New York 10017. Defendants are represented by Gavin F. Rooney and Natalie J. Kraner of Lowenstein Sandler PC, 1251 Avenue of the Americas, New York, New York 10020.
MEMORANDUM AND ORDER :
Plaintiffs Beth Israel Medical Center and St. Luke's-Roosevelt Hospital Center, along with their parent company, Continuum Health Partners, Inc. (collectively, "Plaintiffs"), bring this action against Defendants Verizon Business Network Services, Inc., Verizon Communications Inc., Verizon New York, Inc., and Verizon Services Corp. (collectively "Verizon" or "Defendants") for claims relating to various alleged overcharges for telecommunications services. Plaintiffs assert violations under Sections 201 and 207 of the Federal Communications Act, 47 U.S.C. §§ 201 and 207, as well as state law claims for (1) breach of contract, (2) unjust enrichment, (3) money had and received, (4) fraud, and (5) violation of Section 349 of the New York General Business Law. Before the Court is Verizon's motion to dismiss Plaintiffs' breach of contract claim to the extent it relates to a certain long-distance contract, as well as Plaintiffs' unjust enrichment, money had and received, fraud, and Section 349 claims, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Verizon's motion is granted.
I. BACKGROUND
The facts are taken from the First Amended Complaint ("FAC"). In ruling on the instant motion, the Court has considered Defendants' Memorandum of Law ("Mem."); Plaintiffs' Memorandum in Opposition ("Opp'n"); and Defendants' Reply ("Reply"); as well as the declarations and exhibits attached thereto.
Plaintiffs allege that Verizon engaged in "gross[]" overbilling for more than ten years, resulting in millions of dollars of faulty charges made pursuant to a number of telecommunications services contracts between the parties. (FAC ¶¶ 1, 47.) Beginning in 1998, Plaintiffs allege that Verizon improperly charged them $2.5 million for services that had been pre-paid pursuant to a contract with GE Capital. (Id. ¶¶ 44-45.) Similarly, Plaintiffs assert that from 1998 to 2009 Verizon charged for voice use of so-called T-1 network connections, when those network connections were only configured for less expensive data use. (Id. ¶¶ 38-40.) Though Verizon admitted that Plaintiffs never requested and could not use voice services over the T-1 connections, it insisted that Plaintiffs were required to file an "exemption certificate" to avoid the charges. (Id. ¶ 41.) Likewise, Plaintiffs assert that from 2005 to 2009 Verizon charged them for Transparent Local Area Network circuits ("T-LAN"), which had become obsolete and redundant when Verizon installed Dense Wavelength Division Multiplexing technology ("DWDM") at the hospitals. (Id. ¶¶ 24-26.) Though the parties' contract required that Verizon disconnect the T-LAN service when the DWDM service was activated, Verizon failed to do so. (Id. ¶ 26.) Again, though Verizon admitted the services were redundant, it insisted Plaintiffs were not entitled to a refund because they did not submit a disconnect request. (Id. ¶ 29.)
Plaintiffs also assert that, from 2005 to 2008, Verizon improperly charged them for Intelligent Dedicated Sonet Ring service ("IDSR") that had been rendered redundant by installation of the DWDM technology. (Id. ¶¶ 33-34.) Though Verizon admitted the impropriety of these charges, it refunded Plaintiffs less than half of the overpayment, claiming Plaintiff's demand was barred by a two-year statute of limitations. (Id. ¶ 36.) In addition, Plaintiffs claim that from April 2008 to June 2009 Verizon improperly billed them for long-distance services. (Id. ¶ 12.) Though the parties' contract stated Verizon would charge Plaintiffs 3.3 cents per minute for interstate calls, and slightly more for intrastate calls, Verizon often charged as much as ten times that amount. (Id. ¶¶ 11-12.) Verizon has repaid roughly half of these charges but refuses to repay the remaining balance based on a contractual statute of limitations argument. (Id. ¶¶ 18-19.)
Plaintiffs claim that Verizon's failure to notify them of the double billing, or the need to file an exemption certificate or disconnect request, breached Verizon's duty to disclose and constitutes a "deceptive and fraudulent business practice" under state and federal law. (Id. ¶¶ 30-32, 42-43, 48.) Moreover, Plaintiffs allege that Verizon's overbilling was systematic (id. at ¶ 51) and that Verizon deliberately attempted to thwart their attempts to recover the overpayments (id. ¶ 55). Plaintiffs also note that another area hospital, Maimonides Medical Center, sued Verizon for similar overcharges in 2009 (id. ¶ 60) and that Verizon has routinely "victimized" customers, including the federal government's General Services Administration (id. ¶ 61).
Plaintiffs initiated this action on June 30, 2011. (Doc. No. 1.) Verizon filed its motion to dismiss on March 5, 2012. (Doc. No. 28.) Plaintiffs filed their opposition brief on April 23, 2012, and the motion was fully briefed on May 17, 2012 when Verizon filed its reply. (Doc. Nos. 37, 40.) The Court heard oral argument on June 29, 2012. (Doc. No. 41.)
II. DISCUSSION
A. Legal Standard
For a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept all well-pleaded allegations contained in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Grandon v. Merrill Lynch & Co., 147, F.3d 184, 188 (2d Cir. 1998). To survive a motion to dismiss, a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility where 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, 556 U.S. 662, 678 (2009). By contrast, a pleading that only "offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). If the plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Twombly, 550 U.S. at 570.
B. Breach of Contract
Dismissal of a breach of contract claim is appropriate where a contract's clear, unambiguous language excludes a plaintiff's claim. See, e.g., Advanced Mktg. Group, Inc. v. Bus. Payment Sys., LLC, 300 F. App'x 48, 49 (2d Cir. 2008). Moreover, "[t]he general rule is recognized that parties may by contract provide for a time shorter than the statutory period as a limitation of time for required action." See, e.g., Brown & Guenther v. N. Queensview Homes, Inc., 239 N.Y.S.2d 482, 483 (App. Div. 1963). Plaintiffs seek relief for, inter alia, Verizon's overcharges for long-distance service provided from April 2008 until June 2009. (FAC ¶¶ 11-12.) Verizon concedes that it overcharged Plaintiffs during this period but contends that its liability is contractually limited to the amount already refunded to Plaintiffs. (Mem. 21-25.) Thus, Verizon argues that Plantiffs' breach of contract claim must be dismissed to the extent it seeks a refund under this contract. (Id.) The Court agrees.
On July 29, 2005, the parties entered into a long-distance services contract that reads in pertinent part:
Payment. Customer agrees to pay all [Verizon] charges (except Disputed amounts, as defined below) within 30 days of invoice date. . . . Amounts not paid or Disputed on or before 30 days from invoice date shall be considered past due, and Customer agrees to pay a late payment charge . . . . A "Disputed" amount is one for which Customer has given [Verizon] notice, adequately supported by bona fide explanation and documentation. Any invoiced amount not Disputed within 6 months of the invoice date, shall be deemed to be correct and binding on Customer.(Opp'n 22; Decl. of Gavin J. Rooney, dated Mar. 2, 2012, Doc. No. 30 ("Rooney Decl."), Ex. B ¶ 11 (emphasis added).) As is clear, the contract unambiguously deems correct and binding "[a]ny invoiced amount" undisputed within six months of the invoice date. See, e.g., This Is Me, Inc. v. Taylor, No. 89 Civ. 1339 (MJL), 1996 WL 20745, at *1 (S.D.N.Y. Jan. 17, 1996) ("The intent to shorten the period of limitations must . . . be clearly and unequivocally set forth in the agreement itself."). Plaintiffs attempt to create ambiguity where none exists, insisting that the "deemed correct" provision indicates that the contract pertains to unpaid balances, and not to invoices paid in full that were later discovered to contain overcharges. (Opp'n 26-30.) However, that reading strains to avoid the plain meaning of the text. See Wells v. Bank of New York Co., 694 N.Y.S.2d 570, 574 (Sup. Ct. 1999) (enforcing a "deemed correct" provision in a bank's regulations to bar suit for payment of forged checks that were not brought to the bank's attention within the provided notification period). Accordingly, Plaintiffs' breach of contract claim, insofar as it pertains to overcharges stemming from the cited long-distance services contract, is dismissed.
C. Unjust Enrichment & Money Had and
Received
A valid and enforceable contract precludes quasi-contractual recovery in New York. See, e.g., Rensselaer Polytechnic Inst. v. Varian, Inc., 340 F. App'x 747, 749 (2d Cir. 2009). Accordingly, Plaintiffs' unjust enrichment and money had and received claims are barred because there is an enforceable contract governing these claims. (See Mem. 20.)
In an attempt to avoid this finding, Plaintiffs cite two cases that purportedly stand for the proposition that an unjust enrichment claim may be sustained even in the face of a valid contract. However, in both of those cases, the courts found that the conduct complained of occurred outside of the contracts that existed between the parties. See Allstate Insurance Co. v. Lyons, 843 F. Supp. 2d 358, 376 (E.D.N.Y. 2012) (permitting unjust enrichment claims to proceed because they were "predicated on conduct not covered by the contract" (internal quotation marks omitted)); Williamson v. Stallone, 905 N.Y.S.2d 740, 748 (Sup. Ct. 2010) ("The trustee's claim is equitable and not based on provisions in the agreement."). Thus, the cases do not abrogate the longstanding principle that a plaintiff may not state a claim for unjust enrichment or money had and received when, as here, the complained of conduct is covered by a contract.
Plaintiffs vainly rely on dicta in these opinions that "where one party to a contract accidentally pays another more than the contract requires, the overpayer has an unjust enrichment claim to recover the excess." Lyons, 843 F. Supp. 2d at 376 (citing Kirby McInerney & Squire, LLP v. Hall Charne Burce & Olson, S.C., 790 N.Y.S.2d 84, 85 (2005)). However, Plaintiffs deprive these statements of any context. In fact, courts relying on the same precedent have held that this exception applies only where "the defendant, though guilty of no wrongdoing, has received money to which he or she is not entitled," not where the quasi-contract claim "simply duplicates, or replaces, a conventional contract or tort claim." Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012). This is because "a party may not bring an unjust enrichment suit where it could instead bring a claim for breach of contract covering the same subject-matter." Spirit Locker, Inc. v. EVO Direct, LLC, 696 F. Supp. 2d 296, 305 (E.D.N.Y. 2010). Indeed, it is telling that, at oral argument, Plaintiffs were unable to name a single quasi-contract claim that would not be covered by their breach of contract claims. (Tr., dated June 29, 2012, 35:7-37:18.)
Thus, while Plaintiffs have asserted facts supporting that they were improperly billed for the GE Capital pre-paid services, the T- LAN and IDSR services, and the T-1 voice use, they have not asserted facts supporting that these overcharges were extraneous to the parties' contracts. To the contrary, Plaintiffs have openly pled that these charges all arose from the parties' contracts. Therefore, Plaintiffs' unjust enrichment and money had and received claims are dismissed.
D. Common Law Fraud
To state a claim for fraud, a plaintiff must show that: (1) the defendant made a false representation as to a material fact; (2) the defendant had the intent to defraud; (3) the false representation induced reliance; and (4) the plaintiff was harmed as a result. N.Y. Univ. v. Cont'l Ins. Co., 87 N.Y.2d 308, 318 (1995); Banque Arabe et Internationale D'Investissement v. Md. Nat'l Bank, 57 F.3d 146, 153 (2d Cir. 1995). Additionally, under Federal Rule of Civil Procedure 9(b), fraud claims must be pled with particularity. Consequently, "[c]onclusory statements and allegations are not enough to meet the Rule 9(b) pleading requirements." Musalli Factory for Gold & Jewelry Co. v. JP Morgan Chase Bank, N.A., 382 F. App'x 107, 108 (2d Cir. 2010). Plaintiffs allege that Verizon's long-term practice of overbilling constitutes fraud. (FAC ¶ 70.) However, because Plaintiffs have failed to satisfy the aforementioned criteria, their fraud claim must be dismissed.
1. Rule 9(b)'s Particularity Requirement
While Rule 9(b) does not require a plaintiff to plead the elements of fraud with "great specificity," a plaintiff must still "specifically plead those events which give rise to a strong inference that the defendant[] had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth." Connecticut Nat'l Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir. 1987). Plaintiffs do not point to any intentionally misleading statement made by Verizon. Instead, Plaintiffs claim that the invoices themselves are misstatements sufficient to satisfy the elements of fraud. That is, Plaintiffs do not assert that Verizon fraudulently claimed to provide a service it did not in fact provide. Plaintiffs assert only that Verizon's stated charge for services provided was a lie. In support of the argument that the "false" amounts due may be considered per se fraudulent statements of fact, Plaintiffs cite a one-page, unreported disposition from the Appellate Division holding that invoices submitted by a plaintiff indicating systematic overbilling were sufficient to assert a state fraud claim. Citibank (S. Dakota), N.A. v. Ramirez, 867 N.Y.S.2d 373 (App. Div. 2008). Citibank, however, does not speak to the requirements of 9(b) at all. Plaintiffs also cite Moore v. PaineWebber, Inc. for the proposition that erroneous invoices may satisfy Rule 9(b). 189 F.3d 165 (2d. Cir. 1999). However, there the court inferred from the complaint that the defendant's false invoices were part of a larger scheme of deliberately false statements intended to deceive the plaintiff into believing a life insurance plan was also an individual retirement account. Id. at 173. Because there is nothing in the FAC to support a similar inference of scienter in this matter, the Court finds that Plaintiffs' fraud claim fails to satisfy Rule 9(b)'s particularity requirement.
2. The Omissions Theory of Fraud
Plaintiffs also contend that Verizon is liable for fraud because it failed to disclose "material information as concerns its improper billing." (FAC ¶ 70.) Ordinarily, nondisclosure does not constitute fraud absent a duty to speak. In re Bristol Myers Squibb Co. Sec. Litig., 586 F. Supp. 2d 148, 159 (S.D.N.Y. 2008). Thus, the elements of a fraudulent concealment claim are essentially those of an affirmative fraud claim, except a plaintiff must also allege a duty to disclose. Banque Arabe, 57 F.3d at 153; Swersky v. Dreyer, 219 A.D.2d 321, 327 (App. Div. 1996). Plaintiffs argue that Verizon had a duty to disclose because: (1) the Federal Truth-in-Billing Rules require it, see 47 C.F.R. §64.2401; (2) Verizon had superior knowledge; and (3) Verizon previously communicated half-truths and made partial or misleading statements (see, e.g., FAC ¶ 31). However, Plaintiff's adoption of a fraudulent concealment theory does not relieve them of the obligation to plead facts giving rise to the inference of fraudulent intent. Therefore, Plaintiff's fraudulent concealment theory fails for the same reason its ordinary fraud claim fails.
Accordingly, the Court concludes that Plaintiffs have failed to assert particularized facts giving rise to an inference of fraud, and Plaintiffs' fraud claim is dismissed.
Verizon further contends that Plaintiffs' fraud claim is impermissibly duplicative of its breach of contract claim. See Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 183 (2d Cir. 2007). However, because Plaintiffs have failed to allege fraud with particularity as is required under Rule 9(b), the Court does not reach this issue.
E. New York General Business Law § 349
Section 349 makes unlawful "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state." N.Y. Gen. Bus. Law § 349(a). To state a claim under Section 349 a plaintiff must allege: "(1) the act or practice was consumer-oriented; (2) the act or practice was misleading in a material way; and (3) the plaintiff was injured as a result." Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009). Verizon contends that Plaintiffs have not pled facts supporting the first two elements. The Court agrees.
1. Consumer-Oriented Conduct
Section 349 is "directed at wrongs against the consuming public." Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 24 (1995). In order to make out a claim under Section 349, Plaintiffs must show that Verizon's "acts or practices have a broader impact on consumers at large." Oswego Laborers', 85 N.Y.2d at 25. The consumer-oriented requirement is met only if the challenged conduct "potentially affect[s] similarly-situated consumers." Id. at 26-27. Therefore, Section 349 does not extend to private contract disputes unique to the parties. Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 64 (2d Cir. 2010). Accordingly, consumer-oriented conduct may be found where a bank engages with a customer walking in off the street, Oswego Laborers', 85 N.Y.2d at 25, but it will not lie where two sophisticated parties construct a unique contract to govern their interactions, New York Univ. v. Cont'l Ins. Co., 87 N.Y.2d 308, 320-21 (1995).
Plaintiffs maintain that they have sufficiently alleged consumer-oriented conduct, pointing to the FAC's identification of Maimonides Medical Center ("Maimonides") as a "similarly-situated" victim of Verizon's overbilling. (FAC ¶ 60.) However, the bare allegation that Verizon overbilled another hospital does not suggest the "broader impact on consumers at large" required to state a claim under Section 349. See Oswego Laborers', 85 N.Y.2d at 25; see also Shema Kolainu-Hear Our Voices v. ProviderSoft, LLC, 832 F. Supp. 2d 194, 205 (E.D.N.Y. 2010) ("Extending this analysis, marketing a software product only to a subset of not-for-profit corporations does not qualify as consumer-oriented conduct.").
Not surprisingly, the Magistrate Judge assigned to Maimonides' case also recommended dismissal of its Section 349 claim because Maimonides failed to allege consumer-oriented conduct. See Maimonides Med. Ctr. v. Verizon N.Y., Inc., No. 09 Civ. 54 (CBA) (RML) (E.D.N.Y. May 13, 2010), Doc. No. 37. --------
Plaintiffs cite a number of cases in which other plaintiffs were able to satisfy the consumer-oriented requirement by showing that the defendant's conduct potentially affected similarly-situated consumers. (Pl. Br. 10.) For example, in M&T Mortgage Corporation v. White, the court held that a mortgage company's deceptive practices concerning home purchases and accompanying mortgages could be harmful to the public at large. 736 F. Supp. 2d 538, 571 (E.D.N.Y. 2010). However, the court there relied on the ordinary, consumer nature of the transaction in finding that "similarly vulnerable consumers could . . . fall victim to similar practices." Id. The court continued, "[t]he disparity in bargaining power favors a finding of consumer-oriented practice, as the statute was intended to protect 'small-time individual consumers' and not sophisticated commercial entities." Id. at 572 (quoting Exxonmobil Inter-Am., Inc. v. Advanced Info. Eng'g Services, Inc., 328 F. Supp. 2d 443, 449 (S.D.N.Y. 2004)). Here, Plaintiffs are sophisticated entities operating within unique contractual arrangements. They cannot rely on a "disparity in bargaining power" or potentially wide-ranging effects to establish that similarly vulnerable consumers may be affected. Id.
Plaintiffs also rely on WorldHomeCenter.com, Inc. v. PLC Lighting, Inc., in which this Court determined that the plaintiff had sufficiently pled consumer-oriented conduct to survive a motion to dismiss. 851 F. Supp. 2d 494, 499 (S.D.N.Y. 2011). In so ruling, this Court recognized that the consumer-oriented requirement must be liberally construed. Id. However, that case has no bearing on the matter at hand, since the complaint in that case specifically alleged that the defendant represented "to consumers" that it would not honor warranties on the plaintiff's products. Id. Here, Plaintiffs make no specific allegation that Verizon's alleged overbilling directly affected consumers at large. Rather, Plaintiffs make only conclusory assertions that other customers have been affected by Verizon's alleged systematic overbilling. (FAC ¶ 61.) Thus, the FAC - under any construction - does not allege consumer-oriented conduct as required by Section 349.
In the alternative, Plaintiffs argue that the consumer-oriented requirement is satisfied if Verizon's conduct caused public harm. (Opp'n 11.) In Securitron Magnalock Corp. v. Schnabolk, the Second Circuit held that corporate competitors may bring a claim under Section 349 so long as harm to the public at large is at issue. 65 F.3d 256, 264 (2d Cir. 1995). The "critical question" in such cases is whether the matter harms the public interest in New York. Id.
Plaintiffs assert that Verizon's overcharges drained the hospitals of critical resources that could have been directed at serving the public. (Opp'n 12.) However, the hypothetical harm alleged by Plaintiffs lacks the certain, specific, and direct public impact required to support a finding of consumer-oriented conduct. For example, in Securitron, a jury found that the defendant violated Section 349 when it falsely represented to various public entities, including school systems and the New York City Fire Department, that its competitor's locks were unfit for use. Securitron, 65 F.3d at 260-61. The Second Circuit upheld the jury's finding, concluding that the defendant's deliberately deceptive acts interfered with agency functions, resulting in unnecessary investigations that diverted resources away from legitimate dangers and that also caused consumers to unnecessarily cancel contracts with the plaintiff. Id. at 264. Similarly, in Lyons, the court declined to dismiss the plaintiff's claims because the defendant's deceptive acts - which siphoned millions of dollars out of an insurance company - "likely increased the premiums of consumers." 843 F. Supp. 2d at 376. Thus, in both cases, the courts found likely injury to the general public before concluding that the plaintiffs had alleged consumer-oriented conduct. In contrast to the direct governmental and consumer harm in Securitron and the massive and reverberating scheme in Lyons, Plaintiffs here allege a routine case of overbilling. Such a narrow, private dispute simply does not provide a basis for a Section 349 claim.
Finally, Plaintiffs allege that Verizon's practice of making unilateral and material changes to contract terms through its website causes public harm. (FAC ¶ 23). However, again, Plaintiffs have not specified any harm to the public at large from changed contract terms. Therefore, Plaintiffs have failed to allege consumer-oriented conduct sufficient to satisfy the first element of Section 349.
2. Materially Misleading Act or Practice
An act or practice is impermissibly deceptive under Section 349 when it is "likely to mislead a reasonable consumer acting reasonably under the circumstances." Oswego Laborers', 85 N.Y.2d at 26. Ordinarily, when the alleged deceptive act or practice is fully disclosed to a plaintiff, the "deception" cannot amount to a materially misleading act or practice under Section 349. See, e.g., WorldHomeCenter.com, 851 F. Supp. 2d at 499 (citing Watts v. Jackson Hewitt Tax Serv. Inc., 579 F. Supp. 2d 334, 346 (E.D.N.Y. 2008)).
As is clear in the FAC, any information necessary to discover the alleged overbilling was provided to Plaintiffs in their invoices. While Plaintiffs assert that the bills themselves were misleading and confusing (FAC ¶¶ 53, 59) - thereby masking the information - Plaintiffs cite no authority for the proposition that a complete, if arguably confusing, disclosure may be considered misleading under Section 349. Plaintiffs do contend that an omission can amount to a materially misleading practice. See Oswego Laborers', 85 N.Y.2d at 26. However, "in the case of omissions . . . the statute does not require businesses to ascertain consumers' individual needs and guarantee that each consumer has all relevant information specific to its situation." Id. Instead, the statute applies "where the business alone possesses material information that is relevant to the consumer and fails to provide this information." Id. Plaintiffs allege no such failure on Verizon's part. Indeed, while Plaintiffs claim that Verizon failed to disclose, inter alia, the need to file an exemption certificate or disconnect request, they nowhere assert that Verizon concealed the harm alleged - overbilling - which was disclosed in each of Plaintiffs' invoices.
Accordingly, because the Court concludes that Plaintiffs have failed to allege either a consumer-oriented practice or a materially misleading act, their Section 349 claims are dismissed.
III. CONCLUSION
This case concerns a contractual dispute between two sophisticated parties with full relief available under the terms of those contracts. Accordingly, for the reasons set forth above, Defendants' motion to dismiss Plaintiffs' breach of contract claim - at least to the extent it concerns the cited long-distance contract - is granted. Similarly, the Court grants Defendants' motion to dismiss Plaintiffs' unjust enrichment, money had and received, fraud, and Section 349 claims. The Clerk of Court is respectfully requested to close the motion pending at Docket Number 28. In addition, IT IS HEREBY ORDERED THAT the parties shall submit a joint letter to the Court no later than March 29, 2013 setting forth the next contemplated steps in this case. IT IS FURTHER ORDERED THAT the parties shall submit a proposed case management plan to the Court no later than March 29, 2013. A template may be found at: http://www.nysd.uscourts.gov/cases/show.php?db=judge_info&id=347. SO ORDERED.
/s/_________
RICHARD J. SULLIVAN
United States District Judge Dated: March 18, 2013
New York, New York
* * *
Plaintiffs are represented by Marvin Wexler, Lawrence C. Fox, and Emily Rosdeitcher of Kornstein Veisz Wexler & Pollard LLP, 757 Third Avenue, New York, New York 10017.
Defendants are represented by Gavin F. Rooney and Natalie J. Kraner of Lowenstein Sandler PC, 1251 Avenue of the Americas, New York, New York 10020.