United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
action, commenced in state court by Plaintiff Tracey Road
Equipment, Inc. on November 30, 2017, was removed to federal
court on January 2, 2018. Dkt. Nos. 1 (“Removal
Notice”), 1-1 at 6-14
(“Complaint”). Plaintiff alleges negligence and breach
of fiduciary duty claims against Defendant Ally Financial,
Inc., Plaintiff's insurance broker, in connection with
Defendant's failure to advise Plaintiff to acquire credit
card fraud insurance. Compl. Defendant moves to dismiss the
Complaint. Dkt. Nos. 9 (“Motion”), 9-1
(“Memorandum”). For the following reasons,
Defendant's Motion is granted.
facts in this section are drawn from the Complaint. Plaintiff
“is a heavy-duty truck and construction equipment
dealership that sells and rents new and used trucks and
equipment.” Compl. ¶ 5. Defendant is, in relevant
part, an insurance broker. Id. ¶ 6. Plaintiff
commenced this action in the Supreme Court of the State of
New York, Onondaga County, on November 30, 2017. Removal
Notice ¶ 1. Defendant removed the action to this Court
on January 2, 2018. Id. ¶ 19. Plaintiff alleges
negligence and breach of fiduciary duty claims in connection
with Defendant's failure to advise Plaintiff to purchase
credit card fraud insurance coverage or to procure the
coverage on Plaintiff's behalf. Compl. ¶¶
24-35. Defendant moved to dismiss the Complaint, Mot.; Mem.,
Plaintiff opposed the Motion, Dkt. No. 13
(“Response”), and Defendant filed a reply, Dkt.
No. 15 (“Reply”).
survive a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a “complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court
must accept as true the factual allegations contained in a
complaint and draw all inferences in favor of the nonmoving
party. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50
(2d Cir. 2006). Plausibility, however, requires “enough
fact[s] to raise a reasonable expectation that discovery will
reveal evidence of [the alleged misconduct].”
Twombly, 550 U.S. at 55.
plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). “[T]he pleading standard Rule 8 announces
does not require ‘detailed factual allegations, '
but it demands more than an unadorned,
Id. (quoting Twombly, 550 U.S. at 555).
Where a court is unable to infer more than the mere
possibility of the alleged misconduct based on the pleaded
facts, the pleader has not demonstrated that she is entitled
to relief and the action is subject to dismissal.
Id. at 678-79.
Motion to Dismiss
argues that Plaintiff's negligence and breach of
fiduciary duty claims both fail because Defendant did not
have a duty to advise Plaintiff to purchase credit card fraud
insurance or to procure credit card fraud insurance on its
behalf. Mem. at 9-11. To state a negligence claim under New
York law, a plaintiff must allege “(1) the existence of
a duty on defendant's part as to plaintiff; (2) a breach
of this duty; and (3) injury to the plaintiff as a result
thereof.” Caronia v. Philip Morris USA, Inc.,
715 F.3d 417, 428 (2d Cir. 2013) (quoting Akins v. Glen
Falls City Sch. Dist., 424 N.E.2d 531, 535 (N.Y. 1981)).
To state a breach of fiduciary duty claim under New York law,
a plaintiff must allege “(i) the existence of a
fiduciary duty; (ii) a knowing breach of that duty; and (iii)
damages resulting therefrom.” Johnson v. Nextel
Commc'ns, Inc., 660 F.3d 131, 138 ...