REPORT, RECOMMENDATION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
This matter was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #5.
Plaintiff Stampede Presentation Products, Inc. ("Stampede"), brought this action in New York State Supreme Court, Erie County, against defendants Productive Transportation, Inc., Productive Transportation Carrier Corp. (collectively, "Productive"), and 1SaleADay L.L.C., seeking money damages based on an alleged loss of an interstate shipment of 960 flat screen TVs. The case was removed to this court pursuant to 28 U.S.C. § 1441 by Notice of Removal filed on May 24, 2012 by defendant Productive (as consented to by defendant 1SaleADay), alleging original federal jurisdiction under 49 U.S.C. § 14706 (liability of carriers under receipts and bills of lading). Dkt. #1.
Pending for report and recommendation is defendant 1SaleADay's motion to dismiss the complaint against it for failure to state a claim upon which relief can be granted. Dkt. #13. Upon consideration of the pleadings and submissions presented, and for the reasons that follow, it is recommended that defendant's motion be granted.
As alleged in the original Verified Complaint, filed in state court on May 2, 2012, Stampede is in the business of distributing presentation equipment, including flat panel display units and projectors, to audio/visual, computer, and home theater resellers. Dkt. #1, p. 8, §6. Pursuant to a "Purchase Invoice" dated February 10, 2012, Stampede purchased 960 thirty-two inch flat screen TVs from 1SaleADay, an Internet discount retailer, for a total price of $205, 440.00. Stampede pre-paid the purchase price in cash by wire transfer on January 2, 2012. Id. at 21, §§10-11.
Pursuant to a "Uniform Straight Bill of Lading" dated February 2, 2012, Stampede hired Productive for a fee of $3, 475 to pick up the TVs at the manufacturer's warehouse in California, "FOB Origin, " and deliver them to Stampede's customer, TigerDirect (also referred to as "SYX Distribution"), located in Napierville, Illinois. Id. at 22, §§12-13. Productive in turn subcontracted with another carrier, MML Transport, Inc. ("MML") of Chicago, Illinois, to pick up the TVs in California and deliver them to Stampede's customer in Illinois. Id. at 8-9, §14. As alleged in the original Verified Complaint, "[t]he [TVs] were in fact picked up at the California warehouse, but they were never delivered to [Stampede]'s customer. Instead, they were stolen and/or lost by the trucker who picked them up at the warehouse." Id. at 9, §15. Stampede claims that Productive engaged MML as its agent to perform the obligations of the contract without authenticating MML's qualifications, resulting in the loss of the shipment and causing Stampede to suffer damages in the amount paid to 1SaleADay, along with the profits it would have made in the resale of the TVs to its customer. Id. at 9-10, §§18-29. Stampede asserts causes of action against Productive based on theories of breach of contract, negligence, fraudulent inducement, and tortious interference with contractual relations. Id. at 10-15, §§31-78. Stampede also seeks recovery of the contract price and lost resale profits from 1SaleADay based on theories of breach of contract, negligence, unjust enrichment, and money had and received. Id. at 16-18, §§80-103.
On June 19, 2012, defendant 1SaleADay filed a motion to dismiss the claims asserted against it, on the following grounds:
1. Stampede fails to state a claim against 1SaleADay for breach of contract because, under the Uniform Commercial Code ("UCC"), the Purchase Invoice governing the sale of the TVs was a "shipment" contract, not a "destination" contract, and the risk of loss passed from the seller to the buyer upon delivery of the goods to the carrier;
2. Stampede fails to state a negligence claim against 1SaleADay because there is no allegation of a legal duty independent of the duty imposed by the contract itself;
3. Stampede fails to state claims for unjust enrichment or money had and received because those quasi-contract doctrines do not apply where the parties' obligations are governed by a written contract for the sale of goods.
See Dkt. #13.
On July 9, 2012, following entry of a scheduling order for briefing on the motion to dismiss, Stampede filed an Amended Complaint containing new allegations in an effort to remedy the pleading defects addressed by 1SaleADay's motion. Specifically, with regard to the delivery of the TVs to the carrier at the manufacturer's warehouse, Stampede now alleges in the Amended Complaint that:
20. Possession of the Goods was in fact turned over at the California warehouse. However, the Goods were not turned over to MML. Instead, SaleADay turned them over to an unauthorized stranger, to whom defendant Productive had apparently provided a bill of lading.
21. The Goods were never delivered to plaintiff's customer. Instead, they were stolen by the unauthorized stranger to whom defendant SaleADay delivered them.
Dkt. #16, §§ 20-21. With regard to the negligence claim against 1SaleADay, Stampede alleges in the Amended Complaint that 1SaleADay "had a duty to confirm that the person to whom [it] delivered the Goods was a carrier or person authorized by plaintiff to retrieve them. Defendant SaleADay failed to do so, and thus breached this duty." Id. at §96. The "unjust enrichment" and "money had and received" causes of action against 1SaleADay remain unchanged as alleged in the original state court Verified Complaint.
In response to the motion to dismiss, Stampede asserts that the Amended Complaint has clarified the claims against 1SaleADay by alleging that 1SaleADay breached the contract by delivering the TVs to someone other than the carrier authorized by plaintiff. See Dkt. #18, pp. 5-6. According to Stampede, 1SaleADay has mis-characterized the transaction at issue as a UCC "shipment contract/risk of loss" case, and the Amended Complaint sufficiently alleges that the breach occurred at the time the TVs were delivered by 1SaleADay to the "unauthorized stranger." Stampede also asserts that the Amended Complaint has clarified ...