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Burlington Packaging Inc. v. Extra Packaging Inc.

Defense That Portion of Breach Claim Is Untimely Cannot Be Resolved on Dismissal Motion

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MEMORANDUM AND ORDER   Plaintiff Burlington Products, Inc., the assignee of Burlington Packaging, Inc., (I will use “Burlington” to refer to each interchangeably), has accused defendant Extra Packaging, Inc. (“Extra”) of breaching its contractual and fiduciary duties to Burlington. See Docket Entry (“DE”) 36 (Amended Complaint). Extra now moves to dismiss part of the contract claim as untimely and the fiduciary duty claim in its entirety. See DE 48 (motion); DE 49 (corrected motion); Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, I deny the motion with respect to the contract claim and grant it with respect to the claimed breach of fiduciary duty. I. Background I assume the reader’s familiarity with the proceedings and summarize them only to the extent pertinent to the instant motion. I deem all of the Amended Complaint’s non-conclusory factual allegations to be true and construe them in the light most favorable to Burlington. In the early 2000s, the parties worked together to develop the Inmark Bag, a specialized pressurized bag for Burlington’s principal customer Inmark, Inc. (“Inmark”). After two years of development the parties entered into a “Commission Agreement.” As pertinent here, Burlington agreed to give Extra an exclusive right to sell Inmark Bags and promised to grow Extra’s business with Inmark; in exchange, Extra agreed to pay Burlington a portion of all sales to Inmark. See Am. Compl.

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