DECISION AND ORDER I. Introduction This is a removed diversity action alleging breach of contract and seeking declaratory judgment. Plaintiff (a New York doctor) claims coverage under Defendant’s (a Delaware corporation with its principal place of business in Arizona) Policy offering protection for losses due to identity theft. Defendant moved to dismiss (Docket No. 6), which this Court, on February 3, 2022, granted in part and denied in part, ordering Plaintiff to amend the Complaint, Atwal v. NortonLifeLock, Inc., No. 20CV449, 2022 WL 327471 (W.D.N.Y. 2022) (Docket No. 13). Familiarity with this Decision and Order is presumed. Plaintiff then amended his Complaint (Docket No. 19; see Docket No. 14) filed upon the stipulation of the parties (Docket No. 17; see Docket No. 18 (Order adopting stipulation)). There, he reasserts a breach of contract and seeks declaratory judgment under Defendant’s Policy. Presently before this Court is Defendant’s Motion to Dismiss the Amended Complaint (Docket No. 20). For the reasons stated herein, Defendant’s Motion (Docket No. 20) is granted in part, denied in part. II. Background A. Plaintiff’s Cryptocurrency Account As alleged in the Amended Complaint (and stated in the February 3rd Decision, Atwal, supra, 2022 WL 327471, at *1) from June 26, 2017, Plaintiff maintained a “private EOS cryptocurrency account” (Docket No. 19, Am. Compl. 16). This account was accessible through private key credentials (id. 17). On or about August or September 2018, an unknown third-party misappropriated Plaintiff’s key credentials and then stole all his EOS cryptocurrency funds from this private account (id.
18-19; see id. 21 (unauthorized access and use of his credentials)). Plaintiff had 2.09 million EOS funds in his account, valued at approximately $12 million (id. 20). B. Defendant’s LifeLock Identify Theft Program Under Defendant’s LifeLock Ultimate Plus Policy (hereinafter the “Policy”) issued to Plaintiff, Defendant agreed to pay up to $1 million coverage for remediation, stolen funds reimbursement, personal expenses, and coverage for lawyers and experts for a “Stolen Identity Event” (id. 25, Ex. B, Policy at 3). A “Stolen Identity Event” is defined as a theft of personal information without the insured’s express authorization to establish or use a deposit, credit, or other Account (id. 29, Ex. B, Policy §VI., Definitions U., “Stolen Identity Event,” at 10). That personal information includes “personal identification, social security number, or other method of identifying you, or one or more uses of such stolen information without your express authorization to establish or use a deposit, credit or other Account, secure a loan,…enter into a contract or commit a crime” (id. (emphasis added)). A covered victim of a Stolen Identity Event also may obtain remediation coverage from Defendant including reimbursement of stolen funds (id.), remediation coverages (id. 26, Ex. B, Policy §I.C., at 4-5), and coverage of “direct financial loss arising from a Stolen Funds Loss incurred as a direct result of a Stolen Identity Event” (id. 27, Ex. B, Policy §I.B., at 4). “Stolen Funds Loss” in turn is defined in this policy as “the principal amount, incurred by [the insured] and caused by an Unauthorized Funds Transfer” (id. 28, Ex. B, Policy §VI., Definitions T., “Stolen Funds Loss,” at 10). “Unauthorized Funds Transfer” is defined there as “a Funds Transfer from your Account initiated by a person other than [the insured] without the actual authority to initiate the transfer and from which you and your immediate family members receive no benefit” (id., Ex. B, Policy §VI., Definitions X., “Unauthorized Funds Transfer,” at 10). An “Account” in this Policy “is defined as ‘a U.S. regulated and domiciled checking, savings, money market, brokerage, or credit card Account of yours held directly or indirectly by a Financial Institution and established primarily for personal, family or household purposes. ‘Account’ also includes a Retirement Account held in your name, or the name of your authorized representative.” (id., Ex. B, Policy §VI., Definitions B., “Account,” at 9 (emphasis added)). “Financial Institution” is defined in the Policy as a “bank, savings, association, credit union, credit institution or company issuing credit or any other person or entity that directly or indirectly holds an Account belonging to you” (id., Ex. B, Policy §VI., Definitions G., at 9). C. Proceedings Plaintiff initially alleged a breach of Defendant’s Policy by the unauthorized use of his key credentials to the EOS account (id.). He did not explicitly allege that the EOS account, or the cryptocurrency it contained, was an “Account” under the terms of Defendant’s Policy — that is, currency from a government regulated, domestic financial institution — or that the cryptocurrency was a regulated commodity or security. Defendant removed that case on diversity jurisdiction to this Court (Docket No. 1) and then moved to dismiss (Docket No. 6). This Court granted in part (dismissing the breach of the duty of good faith and unjust enrichment claims and part of the claims alleging breach of contract for losses to Plaintiff’s account) and denied in part that motion (Docket No. 13), Atwal, supra, 2022 WL 327471 (W.D.N.Y. Feb. 3, 2022). There, this Court found that Plaintiff had not alleged how he acquired his EOS cryptocurrency that was stolen from his account that he claims coverage under Defendant’s LifeLock Identity Theft Program. This was essential to establish coverage under Defendant’s program since it expressly covered only “Accounts” from “U.S. regulated and domiciled” financial institutions. Id. at *7, 5, 2. “Absent allegation of government regulation generally applicable to fiat money, cryptocurrency like Plaintiff’s EOS here is dependent upon the agreed upon definition of the parties,” where Defendant defined “Account” narrowly, id. at *5. This Court held that “Plaintiff needed to allege that the cryptocurrency account fell under the terms of Defendant’s Policy,” id. at *8. The initial Complaint did not allege how Plaintiff acquired the cryptocurrency, but “had Plaintiff’s acquisition of EOS cryptocurrency as a regulated security been alleged in the Complaint, the losses Dr. Atwal incurred from its theft would be covered under Defendant’s Policy as from an ‘Account’ from a U.S. regulated and domiciled brokerage,” id. at *7. That Decision also ordered Plaintiff to serve and file an Amended Complaint within twenty-one days of entry of that Decision, or by February 24, 2022, id. at *13. Plaintiff timely moved for Leave to Amend the Complaint (Docket No. 14). There, he adds allegations of the source for his EOS cryptocurrency, claiming that he acquired the cryptocurrency from Block.one in a public offering (id., Ex. A, proposed Am. Compl.
