Enhance-It, L.L.C. v. American Access Technologies, Inc.

413 F. Supp. 2d 626 (2006)

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Nature of the Case

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Facts

John Presley, a representative of D allegedly told P that D 'had tested a new ballast to be utilized in the UV lighting it was selling to Plaintiff… and that it had tested the ballast for a year with good results, and that the new ballast would be better than the part it replaced.' P purchased ultraviolet lighting products from Access (D). P alleged that D shipped defective goods, and asserted causes of action for (1) breach of contract, (2) negligence, (3) fraud and misrepresentation, (4) breach of warranty of merchantability, (5) breach of warranty of fitness for particular use, (6) breach of express warranty, and (7) breach of contract accompanied by a fraudulent act. The court dismissed some of the causes of action because the complaint did not include specific factual allegations sufficient to meet the heightened pleading requirements of Rule 9(b). P filed a Motion to Amend and attached a proposed amendment D opposed the motion as being futile. D contends that the proposed additional causes of action - fraud and breach of contract accompanied by fraudulent act - would not survive a motion to dismiss for failure to state a claim (1) because the allegedly false statement made by D was an expression of opinion and cannot be considered fraudulent; and (2) because these causes of action are barred by South Carolina law.