The opinion of the court was delivered by: John G. Koeltl, District Judge:
The plaintiff, Banco Industrial de Venezuela ("BIV"), brings this action for negligence, aiding and abetting a breach of fiduciary duty, and unjust enrichment against CDW Direct ("CDW"). The action arises out of the sales of merchandise by the defendant to a faithless employee who purported to be acting on behalf of the plaintiff. The plaintiff now seeks to recover the cost of the merchandise that it claims it never received. The defendant moves to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court has subject matter jurisdiction in this case pursuant to 28 U.S.C. § 1332.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "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 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, 556 U.S. 662, 678 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.
When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2000); see also Roseville Emps.' Ret. Sys. v. Energysolutions, Inc., No. 09 Civ. 8633, 2011 WL 4527328, at *1-2 (S.D.N.Y. Sept. 30, 2011).
The following allegations are assumed to be true for the purposes of this motion.
BIV is a Venezuelan bank that performs limited operations in the United States for which it employs a total of thirty-five individuals in New York and Miami. (Am. Compl. ¶ 6.) CDW was BIV's principal computer and information technology vendor in the United States between January 2007 and the commencement of this action. (Am. Compl. ¶¶ 4, 12.)
In the transactions at issue, an employee of BIV purchased goods from CDW for personal use and charged them to BIV. (Am. Compl. ¶¶ 1, 3, 15-17.) The now-former employee, Anthony Gomez, was BIV's Security Administrator between April 2006 and October 2010. (Am. Compl. ¶¶ 14, 44.) As a "senior employee," Gomez's responsibilities included purchasing technology equipment from vendors like CDW on behalf of BIV. (Am. Compl. ¶¶ 14, 44.) Between January 2007 and September 2010 Gomez purchased at least $312,505 worth of equipment from CDW, for which BIV has paid CDW $206,005. (Am. Compl. ¶¶ 16, 37.) Specifically, Gomez ordered "four flat-screen televisions, two videogame systems, nine iPods, an iPad, two GPS devices, . . . twelve digital cameras[,]" and "96 pieces of Cisco networking equipment . . . including 16 Cisco catalyst switches, which contain enough ports to support a large office with hundreds of employees." (Am. Compl. ¶¶ 4, 30-31.) Gomez placed the orders through an account manager that CDW employed and assigned to BIV's account. (Am. Compl. ¶¶ 13, 18.) The account manager, Taralee Mascarella-Santiago, entered the orders based on the information provided by Gomez. (Am. Compl. ¶ 18.) To conceal these purchases from BIV, Gomez altered invoices, created false memoranda that substantiated the purchases, and instructed CDW to deliver the equipment to locations unaffiliated with BIV. (Am. Compl. ¶ 15.)
Based on the allegations in the Amended Complaint, BIV contends that CDW knew, should have known, or consciously avoided learning of Gomez's wrongdoing, which should have been obvious to CDW based on the nature of the equipment, the delivery addresses, and CDW's familiarity with the nature and size of BIV's business. (Am. Compl. ¶¶ 3, 4, 28-32, 40, 45-46.) BIV pleads three causes of action. First, BIV argues that, given CDW's knowledge or unconfirmed suspicion, CDW is liable for negligence because it breached its duty to monitor the account and to warn BIV's management of Gomez's suspicious activity. (Am. Compl. ¶ 40.) These duties arose, according to the Amended Complaint, as a result of CDW's efforts undertaken to aid BIV with its purchases. (Am. Compl. ¶ 39.) The Amended Complaint alleges that CDW's efforts consisted of representations on CDW's website that its account managers are available to advise customers with purchasing decisions coupled with CDW's assignment of an account manager to process BIV's orders. (Am. Compl. ¶ 39; see also Am. Compl. ¶¶ 12, 18-19, Ex. B.)*fn1 Second, BIV claims that, given its knowledge or suspicion of the fraudulent nature of the transactions, CDW's continued execution of Gomez's orders without independent verification constituted aiding and abetting Gomez's breach of fiduciary duty. (Am. Compl. ¶¶ 46-47.) Finally, the Amended Complaint alleges that, given CDW's knowledge or suspicion of the fraudulent nature of the transactions, CDW has been unjustly enriched because it has retained payment for the fraudulent purchases despite failing to "perform its fundamental responsibility to provide technology purchasing advice . . . ." (Am. Compl. ¶ 53.)
The defendant moves to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
BIV claims that CDW is liable for BIV's losses under a negligence theory. CDW argues that it owed no duty to BIV beyond that provided by the contracts between the parties: namely, the duty to fulfill orders to purchase goods placed by the plaintiff. BIV has failed to ...