Wheelz Up, LLC et al v Cordero et al
Filing
65
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 1/28/2025. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
WHEELZ UP, LLC, et al.
:
v.
:
Civil Action No. DKC 24-212
:
ADRIANNE HAROLD CORDERO, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Racketeer
Influenced and Corrupt Organizations Act and tort law case is the
motion to dismiss filed by Defendant John Daryl Avenido (“Mr.
Avenido”).
(ECF No. 29).
The issues have been briefed, and the
court now rules, no hearing being deemed necessary.
105.6.
I.
Local Rule
For the following reasons, the motion will be granted.
Background 1
A. Factual Background
Wheelz Up, LLC (“Wheelz Up”) is a “last-mile delivery service”
based in Maryland.
In 2021, Fredrick Lopez (“Mr. Lopez”), Wheelz
Up’s owner and manager, created Wheelz Up Garage, Inc. (“Wheelz Up
Garage”), a company that repairs delivery vehicles.
(ECF No. 24
¶ 13). 2
1
The following facts are set forth in the amended complaint
and construed in the light most favorable to Plaintiff.
2
Pin cites to documents filed on the court’s electronic
filing system (CM/ECF) refer to the page numbers generated by that
system.
On
or
LeasePlan
about
USA
January
7,
(“LeasePlan”),
vehicle maintenance.
2021,
a
(Id. ¶ 16).
Amazon.com, Inc. (“Amazon”).
Wheelz
vehicle
Up
contracted
leasing
company,
with
for
One of LeasePlan’s customers is
Under the contract, when Amazon
leased a vehicle from LeasePlan, Plaintiffs 3
vehicle’s maintenance and repairs.
would perform the
Wheelz Up would then send an
invoice to LeasePlan for the repairs under the eRepair Subscription
Agreement. After LeasePlan approved an invoice, the eRepair system
generated automatic payments either via credit card or email.
Plaintiffs allege on information and belief that invoices under a
certain amount were automatically paid by the eRepair system
without requiring manual approval from LeasePlan. (Id. ¶ 23).
Wheelz Up Garage performed the work and all payments were
made to Wheelz Up Garage, but the service contract was between
Wheelz Up and LeasePlan.
In August 2020, Wheelz Up Garage hired Mr. Avenido as a
mechanic.
Shortly thereafter, Mr. Avenido introduced Adrianne
Harold Cordero (“Mr. Cordero”), to various Wheelz Up and Wheelz Up
Garage employees as his “cousin.”
(Id. ¶ 25).
In January 2021,
Wheelz Up hired Mr. Cordero as a part time consultant and mechanic
3
The complaint is somewhat unclear on this point. In one
place, it states that “Plaintiffs” would conduct the maintenance
and repairs (ECF No. 24 ¶ 17), while two paragraphs later, the
complaint states that Wheelz Up Garage performed the work (Id.
¶ 19). Later, Wheelz Up is alleged to have conducted the repairs.
(Id. ¶ 21).
At this stage, these inconsistencies are not
determinative.
2
advisor.
Mr. Cordero also worked as a garage mechanic and as a
fleet mechanic on Amazon vehicles for Wheelz Up Garage.
On or
about February 1, 2022, Mr. Cordero was hired by Wheelz Up as a
full-time employee.
Upon beginning their employment with Wheelz
Up, Mr. Cordero and Mr. Avenido both signed Wheelz Up’s Employee
Handbook which prohibits, “[a]cts or attempted acts of dishonesty,
including falsification of records, theft or conversion of the
property of Wheelz Up, LLC, it’s [sic] customer’s, vendor’s or
another employee.”
(Id. ¶ 29).
When Mr. Cordero began his
employment with Wheelz Up, he resided at 3811 Decatur Avenue,
Kensington, Maryland 20895.
At some point, Mr. Cordero moved to
2012 Baltimore Road, Apartment G22, Rockville, Maryland 20851.
Mr. Cordero’s last known address while working for Plaintiffs was
70 Upper Rock Circle, Apartment E42, Rockville, Maryland 20850.
In his role at Wheelz Up, Mr. Cordero had access to the
eRepair account so that he could submit invoices to LeasePlan.
During their time at Wheelz Up, Mr. Cordero and Mr. Avenido had a
close relationship and often spent weekends together.
Plaintiffs
allege on information and belief that at some point Mr. Cordero
gave Mr. Avenido property, including a motorcycle.
(Id. ¶ 34).
On June 20, 2022, while still employed by Wheelz Up Garage,
Mr. Cordero registered an LLC with the Maryland Secretary of State
under
the
name
“AD
Performance
3
LLC.”
AD
Performance
LLC’s
principal address was Mr. Cordero’s former residential Upper Rock
Circle address.
At some point, Mr. Cordero recruited Mr. Avenido to take on
more administrative responsibility for the LeasePlan account and
eRepair system.
Mr. Avenido demanded a raise for taking on the
new role, but Plaintiffs declined to do so.
Plaintiffs told Mr.
Avenido they would pay him more after he demonstrated he could
take on the new role.
Mr. Cordero gave Mr. Avenido money for an
“advance” to take on the new role.
On November 27, 2022, Mr.
Cordero was terminated from his position with Wheelz Up.
He moved
out of state shortly thereafter, but Mr. Avenido maintained access
to Mr. Cordero’s property that was in Maryland, including vehicles
and tools.
Plaintiffs allege on information and belief that Mr.
Avenido helped Mr. Cordero dispose of certain assets.
Mr.
Avenido
continued
working
for
Wheelz
Up
(Id. ¶ 42).
Garage
until
he
resigned on February 24, 2023.
B. Discovery of the Scheme
Plaintiffs
allege
on
information
and
belief
that
around
August 2021, Mr. Cordero exploited a vulnerability in the eRepair
system
that
enabled
him
previously closed invoices.
to
collect
additional
(Id. ¶ 44).
payments
from
Plaintiffs allege, again
on information and belief, that Mr. Cordero orchestrated, and Mr.
Avenido was aware of and assisted in, a scheme to divert payments
from
fraudulently
duplicated
purchase
4
orders
into
their
own
personal accounts.
(Id. ¶ 45).
Plaintiffs allege on information
and belief that between October 11, 2021, and December 24, 2021,
Mr. Cordero diverted thirty-two payments from duplicated purchase
orders.
knew
(Id. ¶ 46).
of
and
Plaintiffs allege on belief that Mr. Avenido
submissions.
assisted
(Id.).
Mr.
Cordero
in
accomplishing
these
Plaintiffs allege on information and belief
that following the diversion of the thirty-two payments, there was
a seventy-three-day period during which no fraudulent transactions
were recorded.
(Id. ¶ 47).
Plaintiffs allege on information and
belief that between March 8, 2022, and November 22, 2022, 497
payments using fraudulent purchase orders were processed by “AD
Performance” or “AD Performance LLC” as the merchant.
After
Mr.
Cordero’s
termination,
password for the eRepair subscription. 4
Plaintiffs
(Id. ¶ 50).
changed
the
Plaintiffs allege on
information and belief that after Mr. Cordero was terminated, no
unauthorized transactions were recorded from November 23, 2022,
until January 25, 2023.
(Id. ¶ 54).
After January 25, 2023, Mr.
Cordero processed 2,686 fraudulent purchase orders all of which
listed “AD Performance LLC or “SQ *AD Performance LLC” as the
merchant and the Upper Rock Circle property as the billing address.
(Id.).
4
Although it is unclear when, Plaintiffs changed the eRepair
subscription account password three times in and around 2023. (ECF
No. 1 ¶ 53).
5
On October 17, 2023, Jonathan McLaughlin, Wheelz Up’s fleet
manager, discovered that he no longer had access to Wheelz Up
Garage’s eRepair account.
Shortly after, Plaintiffs discovered
that between August 2021 and October 2023 AD Performance received
payment for fraudulent invoices totaling $1,336,082.97, none of
which was given to Wheelz Up.
Approximately $1,255,518.11 was
misappropriated after Mr. Cordero no longer worked for Plaintiffs,
some of which was misappropriated while Mr. Avenido still worked
for Plaintiffs.
The next day, Mr. Lopez contacted Mr. Cordero to
discuss the billing discrepancies reported by LeasePlan.
On or
about October 23, 2023, Mr. Cordero called Mr. Lopez and admitted
his involvement, but did not specify whether he used Wheelz Up’s
eRepair account to process the transactions. On December 12, 2023,
Wheelz Up received a demand letter from LeasePlan asking Plaintiffs
to
compensate
LeasePlan
for
the
$1,336,082.97
obtained
by
Defendants.
C. Procedural Background
Plaintiffs filed the original complaint on January 22, 2024
(ECF No. 1), and an amended complaint on May 15, 2024 (ECF No. 24).
Mr. Avenido moved to dismiss the amended complaint on May 29, 2024
(ECF No. 29).
Plaintiffs opposed Mr. Avenido’s motion to dismiss
on June 12, 2024 (ECF No. 44), and Mr. Avenido replied on June 26,
2024 (ECF No. 46).
6
II.
Standard of Review
A motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the complaint.
Presley v. City of Charlottesville, 464 F.3d
480, 483 (4th Cir. 2006).
“[T]he district court must accept as
true all well-pleaded allegations and draw all reasonable factual
inferences in plaintiff’s favor.”
299 (4th Cir. 2021).
standard
of
Rule
Mays v. Sprinkle, 992 F.3d 295,
A plaintiff’s complaint must only satisfy the
8(a)(2),
which
requires
a
“short
and
plain
statement of the claim showing that the pleader is entitled to
relief.”
Fed.R.Civ.P. 8(a)(2).
“[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’”
Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (quoting Fed.R.Civ.P. 8(a)(2)).
A Rule
8(a)(2) “showing” requires “stat[ing] a claim to relief that is
plausible on its face.”
570 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that defendant is liable for the misconduct alleged.”
Mays, 992 F.3d at 299-300 (quoting Iqbal, 556 U.S. at 663).
conclusions
couched
as
factual
allegations
are
Legal
insufficient,
Iqbal, 556 U.S. at 678, as are conclusory factual allegations
devoid of any reference to actual events, United Black Firefighters
of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
7
A fraud claim is subject to the heightened pleading standard
of Fed.R.Civ.P. 9(b). Harrison v. Westinghouse Savannah River Co.,
176 F.3d 776, 783 (4th Cir. 1999).
Rule 9(b) provides that, “in
alleging a fraud or mistake, a party must state with particularity
the circumstances constituting the fraud or mistake.
Malice,
intent, knowledge, and other conditions of a person’s mind may be
alleged generally.”
The circumstances required to be pleaded with
particularity “include the ‘time, place and contents of the false
representation, as well as the identity of the person making the
misrepresentation
and
what
[was]
obtained
thereby.’”
Superior
Bank, F.S.B. v. Tandem Nat’l Mortg., Inc., 197 F. Supp. 2d 298,
313–14 (D.Md. 2000) (quoting Windsor Assocs., Inc. v. Greenfeld,
564 F. Supp. 273, 280 (D.Md. 1983)). The purposes of Rule 9(b) are
to provide the defendant with sufficient notice of the basis for
the plaintiff’s claim; to protect the defendant against frivolous
suits; to eliminate fraud actions where all the facts are learned
only after discovery; and to safeguard the defendant’s reputation.
Harrison, 176 F.3d at 784. In line with these objectives, a “court
should hesitate to dismiss a complaint under Rule 9(b) if the court
is satisfied (1) that the defendant has been made aware of the
particular circumstances for which she will have to prepare a
defense at trial and (2) that [the] plaintiff has substantial
prediscovery evidence of those facts.”
8
Id.
Fraud allegations
that
fail
to
meet
Fed.R.Civ.P.
Fed.R.Civ.P. 12(b)(6) review.
9(b)
warrant
dismissal
under
See id. at 783 n. 5.
III. Analysis
The
amended
complaint
asserts
the
following
counts:
violations of the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. §§ 1962 (c) and 1964(a) against Mr. Cordero
and Mr. Avenido (Count I); tortious interference with a business
relationship against Mr. Cordero, Mr. Avenido, and AD Performance,
LLC (collectively “Defendants”) (Count II); and breach of the duty
of loyalty against Mr. Cordero and Mr. Avenido (Count III).
(ECF
No. 24).
A. Information and Belief Pleading
Many of Plaintiffs’ allegations relating to Mr. Avenido are
made “upon information and belief.”
As has been stated before:
“Under the pleading standard the Supreme Court of the United States
articulated
in
Twombly
allegations
based
solely
and
Iqbal,
‘upon
a
complaint’s
information
and
‘insufficient to defeat a motion to dismiss.’”
conclusory
belief’
are
Van Buren v.
Walmart, Inc., 611 F. Supp. 3d 30, 36-37 (D.Md. 2020), aff’d, 855
F.App’x 156 (4th Cir. 2021) (quoting Harman v. Unisys Corp., 356
F.App’x 638, 640–41 (4th Cir. 2009)).
Further,
As Judge Grimm has noted, it is important to
differentiate “between a case in which
pleading ‘upon information and belief’ is used
as an inadequate substitute for providing
detail as to why the element is present in an
action . . . [and the] proper use of ‘upon
9
information and belief,’ where a plaintiff
does not have personal knowledge of the facts
being asserted.”
Malibu Media, 2014 WL
7188822, at *4 (citations and internal
quotation marks omitted). “‘[P]leading on the
basis of information and belief is generally
appropriate’
where
information
is
‘particularly within defendants’ knowledge
and control.’” Kajoshaj v. N.Y.C. Dept. of
Educ., 543 F.App’x 11, 16 (2d Cir. 2013)
(quoting Boykin v. KeyCorp, 521 F.3d 202, 215
(2d Cir. 2008)).
Id. at 37.
Even
if
information
is
“particularly
within
defendants’
knowledge and control,” conclusory pleading is not permitted:
“Pleading on information and belief is a desirable and essential
expedient when matters that are necessary to complete the statement
of a claim are not within the knowledge of the plaintiff but he
has sufficient data to justify interposing an allegation on the
subject.”
5 C. Wright & A. Miller, Federal Practice and Procedure
§ 1224 (3d ed., April 2019 update).
As discussed below, Plaintiffs’ amended complaint relies far
too
heavily
on
“information
and
belief”
without
including
sufficient substantive facts in support.
B. RICO Claim
In Count I, Plaintiffs assert a racketeering claim under
RICO’s civil provision, 18 U.S.C. § 1964, which provides a cause
of action to “[a]ny person injured in his business or property by
reason of a violation of [18 U.S.C. § 1962].”
Plaintiffs allege
that Mr. Cordero and Mr. Avenido violated Section 1962(c).
10
(ECF
No. 24 ¶¶ 64-77).
Mr. Avenido challenges many aspects of this
claim, arguing that Plaintiffs have failed to allege adequately
any of the required elements.
It will only be necessary to examine
some of those elements, however, to resolve the issue.
For a civil RICO claim to survive a Rule 12(b)(6) motion to
dismiss, plaintiff must allege “(1) conduct; (2) of an enterprise;
(3) through a pattern; (4) of racketeering.”
Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 496 (1985).
First, Plaintiffs provide no factual allegations that Mr.
Cordero
and
enterprise.
Mr.
Avenido
were
engaged
in
the
conduct
of
an
Under 18 U.S.C. § 1962(c), it is unlawful:
for any person employed by or associated with
any enterprise engaged in, or the activities
of which affect, interstate or foreign
commerce, to conduct or participate, directly
or indirectly, in the conduct of such
enterprise’s affairs through a pattern of
racketeering
activity
or
collection
of
unlawful debt.
“[E]nterprise,” as defined in 18 U.S.C. § 1961(4), “includes
any individual, partnership, corporation, association, or other
legal entity, and any union or group of individuals associated in
fact although not a legal entity.”
The complaint states only
conclusory assertions that “[t]he enterprise is made up of [Mr.]
Cordero
and
[Mr.]
Avenido”
and
that
they
“entered
into
the
enterprise for the purpose of executing and attempting to execute
a scheme to use Plaintiffs’ name to misappropriate funds from
LeasePlan[.]
(ECF No. 24 ¶¶ 67-68).
11
At best, the complaint avers
that Mr. Cordero and Mr. Avenido “had a close relationship” and
“spent weekends together.”
(ECF No. 24 ¶ 34).
But the complaint
contains no factual averments regarding how Mr. Cordero and Mr.
Avenido “function[ed] as a continuing unit.”
Grant v. Shapiro &
Burson, LLP, 871 F. Supp. 2d 462, 473 (D.Md. 2012).
The complaint also fails to allege sufficiently that Mr.
Avenido engaged in a pattern of racketeering activity.
Racketeering activity is defined under 18 U.S.C. § 1961(1),
as “any act which is indictable” under a number of enumerated
criminal provisions, including 18 U.S.C. § 1343 (wire fraud), which
Plaintiffs allege here.
The elements of wire fraud are (1) a
scheme disclosing an intent to defraud, and (2) the use of wire,
radio, or television in furtherance of the scheme.
Allegations of
fraud must state with particularity “the fraudulent acts that form
the alleged pattern of racketeering activity” in accordance with
Rule 9(b).
Grant, 871 F. Supp. 2d at 473 (quoting Menasco, Inc.
v. Wasserman, 886 F.2d 681, 684 (4th Cir. 1989) (citation omitted)).
As this court has explained:
To allege a “pattern” of racketeering
activity, Plaintiff[s] must show at least two
predicate
acts of
racketeering
activity
occurring within ten years of each other, 18
U.S.C. § 1961(5),that the acts were related,
and that they “amount to or pose a threat of
continued criminal activity,” H.J., Inc. v.
Nw. Bell Tel. Co., 492 U.S. 229, 240, 109 S.Ct.
2893, 106 L.Ed.2d 195 (1989).
Acts are
related if they “have the same or similar
purposes, results, participants, victims, or
methods of commission, or otherwise are
12
interrelated
by
distinguishing
characteristics and are not isolated events.”
Id. at 240, 109 S.Ct. 2893 (quoting Sedima,
473 U.S. at 486 n. 14, 105 S.Ct. 3275).
Id.
The United States Court of Appeals for the Fourth Circuit has
explained:
Continuity . . . refers either to a closed
period of repeated conduct, or to past conduct
that by its nature projects into the future
with a threat of repetition. To satisfy the
continuity element, a plaintiff must show that
the predicates themselves amount to, or
otherwise constitute a threat of, continuing
racketeering activity.
Id. (quoting Menasco, Inc., 886 F.2d at 683–84 (internal quotation
marks and citations omitted)).
The
Fourth
Circuit
has
expressed
reservations about RICO claims where the
predicate acts are mail and wire fraud
“because it will be the unusual fraud that
does not enlist the mails and wires in its
service at least twice.”
GE Inv. Private
Placement Partners II v. Parker, 247 F.3d 543,
549 (4th Cir. 2001) (internal quotation marks
omitted).
RICO liability is reserved for
“ongoing unlawful activities whose scope and
persistence pose a special threat to social
well-being.” Id. (quoting Menasco, Inc., 886
F.2d at 684).
The pattern requirement thus
serves to “prevent . . . ordinary commercial
fraud from being transformed into a federal
RICO claim.” Menasco, Inc., 886 F.2d at 684–
85. Accordingly, “[n]otwithstanding the fact
that. alleged related acts [may] occur[ ] over
a period of years, an allegation of mail and
wire fraud against one victim, without more,
does not satisfy the continuity element as
interpreted by the Fourth Circuit.”
Orteck
Int’l, Inc. v. TransPacific Tire & Wheel,
Inc., No. DKC 05–2882, 2006 WL 2572474, at *18
(D.Md. Sept. 5, 2006) (citing Al–Abood ex rel.
13
Al–Abood v. El–Shamari, 217 F.3d 225, 238–39
(4th Cir. 2000)).
Id.
Plaintiffs’
allegations
racketeering activity.
occasions
in
October
fail
to
allege
a
pattern
of
Plaintiffs assert that “on twenty-two
2021,
[Mr.]
Cordero,
likely
with
the
assistance of [Mr.] Avenido, misappropriated Plaintiffs’ name and
processed payments using fraudulent purchase orders of an account
not tied with Plaintiffs[.]”
(ECF No. 24 ¶ 69).
At the outset,
Plaintiffs’ vague reference to Mr. Avenido’s “assistance” does not
provide any factual description of how Mr. Avenido was involved in
the purported scheme.
Additionally, Plaintiffs’ allegations fail
to set forth Mr. Avenido’s role in a “scheme disclosing an intent
to defraud.”
Plaintiffs allege “upon information and belief” that
Mr. Avenido assisted Mr. Cordero but they provide no factual
allegations as to any specific conduct of Mr. Avenido. These bare,
conclusory
assertions
fail
to
satisfy
the
particularity
requirements of Rule 9(b).
Finally, the complaint only references conducted directed at
Plaintiffs.
But
“a
pattern
requires
more
than
just
conduct
directed at [a single] Plaintiff[ ].” Davis, 2010 WL 1375363, at
*4; Orteck Int’l, Inc., 2006 WL 2572474, at *18.
Indeed, in the
absence of allegations of “specific fraudulent conduct perpetuated
by any [d]efendant apart from the alleged conduct directed to
[p]laintiff[ ],” a RICO claim cannot survive a motion to dismiss.
14
Davis, 2010 WL 1375363.
Count I, as it relates to Mr. Avenido,
must thus be dismissed.
C. Tortious Interference with a Business Relationship
In Count II, Plaintiffs allege that Mr. Avenido committed
tortious interference with Plaintiffs’ business relationships when
he, with the other Defendants, “intentionally processed payments
using fraudulent purchase orders.”
Under
Maryland
interference,
the
law,
to
following
(ECF No. 24 ¶¶ 78-84).
succeed
on
elements
a
claim
must
be
of
tortious
shown:
“(1)
intentional and wil[l]ful acts; (2) calculated to cause damage to
the plaintiffs in their lawful business; (3) done with the unlawful
purpose to cause such damage and loss, without right or justifiable
cause on the part of the defendants (which constitutes malice);
and (4) actual damage and loss resulting.”
Alexander & Alexander
Inc. v. B. Dixon Evander & Assocs., Inc., 336 Md. 635, 652 (1994).
“[T]he two general types of tort actions for interference with
business relationships are inducing the breach of an existing
contract and, more broadly, maliciously or wrongfully interfering
with
economic
contract.”
relationships
in
the
absence
of
a
breach
of
S. Volkswagen, Inc. v. Centrix Fin., LLC, 357 F. Supp.
2d 837, 851 (D.Md. 2005) (quoting Nat. Design, Inc. v. Rouse Co.,
302 Md. 47, 69 (1984)).
Plaintiffs seemingly allege the second
type of tort action.
15
For liability to attach, the interference must be “wrongful
or unlawful.”
Travelers Indem. Co. v. Merling, 326 Md. 329, 343
(1992).
The Supreme Court of Maryland “has explained that ‘. . .
an
of
act
tortious
interference
with
economic
relations
is
characterized by the defendant’s specific purpose to interfere,
and
. . .
acts
which
incidentally
affect
another’s
business
relationship are not a sufficient basis for the tort.’” Hebbeler
v. First Mariner Bank, No. 17-3461-ELH, 2020 WL 1033586, *18 (D.Md.
Mar. 2, 2020) (quoting Alexander & Alexander Inc. v. B. Dixon
Evander & Assocs., Inc., 336 Md. 635, 656 (1994)).
Mr. Avenido challenges the second and third elements of the
claim.
Mr. Avenido contends that Plaintiffs fail to allege that
his conduct was “‘calculated to cause damage to the plaintiffs in
their lawful business’ or that any actions taken by Mr. Avenido
were done ‘with the unlawful purpose to cause such damage and
loss.’”
(ECF No. 29-1, at 31).
Plaintiffs
failed
to
state
Mr. Avenido further contends that
“any
plausible,
non-conclusory
allegations that the actions of Mr. Avenido . . . were specifically
calculated to cause harm to Plaintiffs’ business relationship with
LeasePlan, or that he acted with any malice.”
(ECF No. 29-1, at
31).
Plaintiffs counter that they have satisfied the pleading
requirements by specifically alleging “Defendants’ conduct was
calculated to cause damage to Plaintiffs” and “Defendants acted
16
with
malice
by
processing
payments
using
fraudulent
purchase
orders for the unlawful purpose of misappropriating funds from
clients[.]”
(ECF
No. 44,
at
19-20).
Plaintiffs
argue
that
“[c]ourts in this district have found similar claims satisfy the
pleading standard” citing to Doe v. Johns Hopkins Health System
Corp., 274 F. Supp. 3d 355 (D.Md. 2017).
Chuang
found
intentional
that
the
interference
plaintiff
with
In Johns Hopkins, Judge
sufficiently
business
relations
alleged
an
claim.
The
plaintiff in Johns Hopkins alleged that statements known to be
false were made by employees of the defendant “without justifiable
cause,” and were “calculated to interfere and cause damage” which
the
court
found
allegations.
plausible
Id., at 371.
considering
the
plaintiff’s
other
The allegations as to Mr. Avenido are
not analogous to those of the plaintiff in Johns Hopkins.
Plaintiffs
point
to
several
paragraphs
of
the
amended
complaint which they contend sufficiently allege their intentional
interference claim.
(ECF No. 44, at 20-22).
All the cited
paragraphs contain allegations made “upon information and belief”
as to Mr. Avenido’s involvement without alleging sufficient facts
in support.
This type of pleading is insufficient to overcome a
motion to dismiss.
Van Buren v. Walmart, Inc., 611 F. Supp. 3d
30, 36-37 (D.Md. 2020), aff’d, 855 F.App’x 156 (4th Cir. 2021)
(quoting Harman v. Unisys Corp., 356 F.App’x 638, 640–41 (4th Cir.
17
2009)).
Accordingly, Count II, as it relates to Mr. Avenido, will
be dismissed.
D. Breach of the Duty of Loyalty
In Count III, Plaintiffs assert a claim against Mr. Cordero
and Mr. Avenido for the breach of the duty of loyalty.
(ECF No. 24
¶¶ 85-92). Mr. Avenido argues that Plaintiffs have failed to state
a breach of loyalty claim because they have not satisfied the
requirements of Rule 9(b).
It is unnecessary to determine the
appropriate pleading standard because Plaintiffs’ duty of loyalty
claim, as to Mr. Avenido, fails for the same reasons as their other
claims.
Plaintiffs rely far too much on information and belief
pleading
without
providing
the
necessary
factual
support.
Accordingly, Count III, as it relates to Mr. Avenido, will be
dismissed.
IV.
Conclusion
For the foregoing reasons, Mr. Avenido’s motion to dismiss
will be granted.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
18
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