MEMORANDUM OPINION AND ORDER
Plaintiff Landale Signs and Neon, Ltd. (“Plaintiff’) contracted to purchase a truck-mounted .crane from Defendant Runnion Equipment Company (“Defendant” or “Runnion”). During the pendency of that sale, an unknown third party (Defendant John Doe) intercepted information related to the ¡transaction, utilized that information to pose as Runnion, and convinced Plaintiff to wire the vehicle’s purchase, price to him. Plaintiff has, at various points, alleged that Runnion is liable under theories of negligence, negligent misrepresentation, breach of fiduciary duty,, and breach of contract (both express and implied). [22] at 5-14.
On December 22, 2016, the Court dismissed Plaintiffs Second Amended Complaint. [29] at 1-19. The dismissal of Plaintiffs contractual theories, however, was without prejudice, and Plaintiff re-alleged those same contractual claims in its Third Amended Complaint. [33] at 1-13.
Two motions are currently • before the Court: Plaintiffs request that the Court reconsider its dismissal with prejudice of Plaintiffs negligence claim, [31] at 1-4, and Runnion’s motion to dismiss Plaintiffs Third Arriended Complaint, [34] at 1-5, As more fully explained below, both motions are denied.
I. Background
In April of 2016, Plaintiff and Runnion executed a sales contract for a truck-
Runnion subsequently informed Plaintiff that it never received the payment. Id. In response, Plaintiff showed' Runnion the string of e-máils wherein an entity purporting to be Runnion instructed Plaintiff on how to make payment for the vehicle. Id. Plaintiff now alleges that Runnion’s computer network, database, and servers were accessed by Defendant John Doe, who utilized the information he or she intercepted from Runnion to pose as Runnion and fraudulently instruct Plaintiff to wire him or her $87,625. Id. at 3-4.
Plaintiff further alleges that Runnion was aware or should have been aware that its -computer network, database,- and servers were being improperly accessed by Defendant John Doe. M at 4. During the parties’ negotiations, Plaintiffs President, Mr. Darrell Brown, noticed that there was a delay in receiving e-mails from Runnion’s President, Mr. Patrick Runnion. Id. Mr. Brown inquired as to. the cause of this delay, and Mr. Runnion indicated that he was aware of potential interference with his e-mail account. Id. Mr, Runnion further represented that an unknown party had previously, been intercepting his e-mails during a prior transaction (though Runn-ion in that instance was able to avert any potential theft). Id.
Plaintiff now alleges that, as part of the foregoing negotiations, Runnion “agreed to complete the transaction with the intent to safeguard any sensitive information from disclosure to third parties,”, and the “parties’ mutual intent constitute^] a meeting of the minds regarding safeguarding sensitive information from disclosure to third parties.” Id. at 12.
II. Legal Standard
- To survive Defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Third Amended Complaint must “state a claim to relief that is plausible on its face.” Yeftich v. Navistar, Inc.,
Plaintiffs motion for reconsideration, meanwhile, is made pursuant to Federal Rule of Civil Procedure 60(b)(1), which permits the Court, in the exercise of its discretion, to relieve a party from an order on the grounds of “mistake, inadvertence, surprise, or excusable neglect.” Relief under Rule 60(b)(1) is “regarded as an extraordinary remedy which is granted only in exceptional circumstances.” Longs v. City of S. Bend,
A. Plaintiffs Motion for Reconsideration
To adequately state a claim for negligence under Illinois law, a party must allege that “the defendant owed him a duty, that the defendant breached this duty, and that he suffered an injury that was proximately caused by the defendant’s breach.” Lewis v. CITGO Petroleum Corp.,
Tó détermine whether a’ particular duty exists under Illinois law, federal courts look first to the Illinois Supreme Court. See ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist.,
The Illinois Appellate Court has already declined to create “a new-legal duty [to safeguard another party’s private information] beyond legislative requirements already in place.” Cooney v. Chicago Public Schools,
Plaintiffs renewed attempts to evade Cooney are unavailing. First, Plaintiff suggests that this Court erred by considering Run'nion’s duty argument at all, as it was raisfed for the first time on reply. This contention is a non-starter. Federal courts may consider arguments raised on reply at their discretion. See United States v. Wilson,
Plaintiff next attempts to distinguish Cooney by arguing that its negligence claim, here is made pursuant to a general duty of care, while Cooney concerned a putative duty to safeguard confidential information. This argument is belied by Plaintiffs allegations. See [33] at 5 (“Runn-ion had a duty to exercise reasonable care in safeguarding,. securing, and protecting the sensitive information sent by Lan-
Finally, Plaintiff suggests that Cooney is not controlling here because, inter alia: (1) Runnion had prior knowledge of a data breach; (2) Runnion is not a data collector; (3) Plaintiffs injury was foreseeable, such that this Court should infer the existence of a duty under the seminal case of Palsgraf v. Long Island Railroad,
Each of these arguments fundamentally misapprehends the relatively simple task before the Court today. The only pertinent question is whether the Illinois Supreme Court would conclude that Runnion was obligated to safeguard Plaintiffs confidential information as a matter of Illinois tort law. In Cooney the Illinois Appellate Court answered this question in the negative, and there is no indication that the Illinois Supreme Court would disagree. The Court declines “to adopt a substantive innovation in Illinois law.” Worix v. MedAssets, Inc.,
B. Defendant’s Motion to Dismiss
Defendant’s current motion to dismiss concerns Plaintiffs claims for breach of express contract and breach of implied contract. The Court analyzes these claims together, as their elements substantially overlap. Compare VanDerMolen v. Washington Mutual Finance, Inc.,
Runnion argues that Plaintiffs breach of contract claims fail because: (1) Plaintiff has failed to perform its obligations; (2) Plaintiff has not identified “some written and material provision of the written contract that has been breached”; (3) Plaintiff has failed to “state a cause of action for breach of an implied duty of good faith and fair dealing”; and (4) as to the implied contract claim only, Plaintiff has failed to allege the requisite “meeting of the minds.” [35] at 3-7. The Court addresses each argument in turn.
1. Plaintiffs Performance
To be sure, performance by the plaintiff is an essential element of breach of contract claims under Illinois law. See Veath v. Specialty Grains, Inc.,
Plaintiff concedes that it was contractually obligated to pay Runnion the purchase price of the truck-mounted crane, and that it instead sent those funds to John Doe. [37] at 4. Plaintiff nevertheless contends that its breach of contract claims remain viable, as its non-performance was precipitated by Runnion’s breach. Id. (citing Cummings v. Beaton & Assocs., Inc.,
The Court agrees. Plaintiff has competently alleged that Runnion agreed to “safeguard any sensitive information from disclosure to third parties,” Runnion breached this obligation, and Runnion’s breach occasioned Landale’s non-performance. [33] at 1-13. These allegations, taken as true for the purposes of the present motion only, qualify for application of the wrongful performance doctrine.
2, Failure To Identify Written Provision
Defendant’s suggestion that Plaintiff was obligated to identify “some written and material provision of the written contract that has been breached,” [35] at 4, misconstrues federal pleading standards. Even though “Plaintiff [still] has not attached” the full complement of contractual documents related to the sale here, the Court must nevertheless “accept Plaintiffs factual allegations as true and draw all reasonable inferences in Plaintiffs favor.” Dolmage,
In its Third Amended ' Complaint, Plaintiff alleges that: (1) Defendant had a previous security failure; (2) the parties discussed Defendant’s previous security failure “[d]uring the negotiations” regarding the vehicle at issue; (3) the parties then entered into a sales contract; (4) Defendant’s security was compromised again, resulting in damage to Plaintiff; and (5) Defendant’s second security failure constituted a breach of its confidentiality obligations under the parties’ sales contract. [33] at 1-6, 11-12. After drawing all reasonable inferences in Plaintiffs favor, it is plausible to surmise that the parties’ sales contract included confidentiality obligations that addressed the security concerns discussed by the parties during their negotiations. At this early stage, “Plaintiff has sufficiently alleged that [the confidentiality obligations were] part of the contract between Plaintiff and Defendant.” Dolmage,
3. Implied Covenant of Good Faith and Fair Dealing
Defendant’s argument that Plaintiff has failed to “state a cause of action for breach of an implied duty of good faith and fair dealing,” [35] at 4, is a non-sequitur—no such cause of action exists under Illinois law. See Spadoni v. United Airlines, Inc.,
4. Meeting of the Minds
Finally, Plaintiffs Third Amended Complaint competently alleges that the parties achieved the requisite meeting of the minds, in two separate statements that were absent from Plaintiffs earlier pleadings: “Upon information and belief, Eunn-ion agreed to complete the transaction with the intent to safeguard any sensitive information from disclosure to third'parties,” and the “parties’ mutual intent constitutes a meeting of the minds regarding safeguarding sensitive information from disclosure to third parties.” [33] at 12.
Defendant suggests these allegations are violative of the parol evidence rule, “conclusory,” and implausible. See generally [35] at 6-7; [38] at 3. These arguments overstate Plaintiffs burden at this early juncture. Plaintiff has plausibly alleged that, in light of Runnion’s previous security breaches, the parties mutually agreed to safeguard each other’s information as part of their sales agreement, See supra at 11.
IV. Conclusion
For the reasons discussed above, both Plaintiffs motion for reconsideration [31] and Defendant’s motion to dismiss [34] are denied.
Notes
. This section is based upon Plaintiffs Third Amended.Complaint. [33] at 1-17.