OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS (Docs. 96, 100) Plaintiff Busrel Inc. (“Plaintiff”) brings this action against Julie Dotton (“Ms. Dotton”), KRP Holdings, LLC (“KRP”), SBM Holdings, LLC (“SBM”), Jonathan Cannon (“Mr. Cannon”), Sean Gauthier (“Mr. Gauthier”), New England Development Corp. (“NEDC”), and Montrose Capital, LLC (“Montrose Capital”) (collectively, “Defendants”), alleging that Defendants improperly retained $7,950,000 of Plaintiff’s payment after Plaintiff and KRP agreed to cancel a contract whereby KRP would supply Plaintiff with personal protective equipment (“PPE”). Pending before the court are Mr. Cannon’s and NEDC’s motions to dismiss Plaintiff’s Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 96, 100.) Mr. Cannon filed his motion to dismiss on July 14, 2022 (Doc. 96), and Plaintiff opposed the motion on July 28, 2022. (Doc. 101.) Mr. Cannon replied on August 12, 2022 (Doc. 105), at which time the court took the motion under advisement. NEDC filed its motion to dismiss on July 27, 2022 (Doc. 100), and Plaintiff opposed the motion on August 10, 2022. (Doc. 104.) NEDC replied on August 14, 2022 (Doc. 106), at which time the court took the motion under advisement. Plaintiff is represented by Judith A. Archer, Esq., Abigail Fay Schwarz, Esq., and Victoria Vance Corder, Esq. Mr. Cannon is represented by David Bolton, Esq. NEDC is represented by Ira Levine, Esq. I. Allegations in the Amended Complaint. Plaintiff is a Canadian company incorporated under the laws of the province of Quebec with its principal place of business in Montreal, Canada. SBM is a limited liability company that is incorporated under the laws of Wyoming and has a mailing address in New York. NEDC is a business incorporated under the laws of Vermont with its principal place of business at Mr. Cannon’s home address in New York. At all relevant times, Mr. Cannon was the Managing Director and sole owner of SBM and the President, Vice President, Secretary, and sole owner of NEDC. Plaintiff was an official provider of PPE to the Canadian provinces of Quebec and Alberta during the COVID-19 pandemic. In April 2020, Andrew Moar and Mr. Gauthier introduced Nicolas Giguere, an independent sales agent for Plaintiff, to Ms. Dotton of KRP for the purposes of procuring PPE. On April 14, 2020, in reliance on Ms. Dotton’s representations regarding her ability to procure large quantities of PPE, Plaintiff entered into a contract with Ms. Dotton and KRP to purchase two million NIOSH N95 masks and ten million SMS 3, 3-ply masks in exchange for payment of $8,200,000 USD (the “Bill of Sale”). (Doc. 88-14.) On April 15, 2020, in connection with the Bill of Sale, the parties entered into an escrow agreement (the “Escrow Agreement”) whereby Plaintiff would send $8,200,000 to an Escrow Agent who would “disburse the Deposit from the Escrow Account as directed by Seller immediately following Escrow Agent’s receipt of the Deposit.” (Doc. 88-15 at 3.) Plaintiff alleges Mr. Cannon introduced SBM’s counsel David Bolton1 to Ms. Dotton on March 31, 2020 so that Mr. Bolton could serve as the Escrow Agent for the transaction with Plaintiff, telling Mr. Bolton in an email that Mr. Cannon was “doing business” with Ms. Dotton and would receive part of the money from the deal with Plaintiff. (Doc. 87 at 6, 26) (internal quotation marks omitted). Plaintiff wired $8,200,000 to the Escrow Agent on April 15, 2020. On April 17, 2020, the Escrow Agent released the $8,200,000 payment to a Citibank account in Albertson, New York owned by SBM pursuant to Ms. Dotton’s instructions. SBM is not a party to the Bill of Sale or the Escrow Agreement. Ms. Dotton did not inform Plaintiff that its money was released to SBM, which later represented to Plaintiff that it was Ms. Dotton’s and KRP’s financial advisor. A day after Plaintiff transferred the payment to the Escrow Account, Mr. Cannon allegedly emailed a document to Ms. Dotton “for the funds going into my Corp account” and a disbursement sheet for her to use “whenever there are funds” from Plaintiff that she wanted Mr. Cannon to transfer. Id. 27 (internal quotation marks omitted). After Plaintiff wired the $8,200,000 payment to the Escrow Agent, Ms. Dotton and Mr. Giguere began negotiating regarding the delivery schedule for Plaintiff’s first order of PPE and the possibility of an order of masks. Plaintiff alleges that on April 20, 2020, while Ms. Dotton was negotiating with Mr. Giguere, Mr. Cannon made four wire transfers from SBM’s account using the $8,200,000 from Plaintiff. Mr. Cannon transferred $281,326.83 to “WHD,” the Wage and Hours Division of the Department of Labor, to pay a Department of Labor settlement reached by Ms. Dotton in connection with another lawsuit; $200 to “Genesis” for unknown purposes; $1,000,000 to a “China Supplier”; and $2,750,000 to NEDC. Id. at 38 (internal quotation marks omitted). After the money reached NEDC’s account, Mr. Cannon allegedly “used the money as if it were his own” by transferring it to his family members, other NEDC bank accounts, and other companies. Id. at 39. On April 21, 2020, Ms. Dotton wrote to Mr. Giguere, “We can refund your money and part ways…. I’m working out the refund with them now[]” and “ [w]e are refunding you. We can’t meet your timeframe[.]” (Doc. 88-18 at 2-3.) Plaintiff’s President, Louis Morin, spoke with Ms. Dotton and the parties agreed to cancel the Bill of Sale and KRP agreed to refund Plaintiff’s money. A day later, on April 22, 2020, Ms. Dotton directed Mr. Cannon to disburse funds in the following manner: $600,000 to “Sean Gauthier” for “consultant per contract”; $50,000 to “VWA Advisors” for “payment per contract”; and $42,924 to “Woods Oviatt” for “payment per contract” and “Legal.” (Doc. 87 at 10, 45) (internal quotation marks omitted). Plaintiff alleges that Mr. Cannon made the wire transfers as directed using Plaintiff’s money. He also made a transfer to “Optimal Health” in the amount of $88.89. Id. 46 (internal quotation marks omitted). Mr. Cannon allegedly wired $600,000 of Plaintiff’s money to Montrose Capital on April 23, 2020. Plaintiff asserts that none of these transfers were for the purpose of procuring PPE. Plaintiff did not receive any PPE for the $8,200,000 it paid. On April 23, 2020, a representative from Plaintiff emailed Ms. Dotton to request proof of the wire transfer to confirm the $8,200,000 refund was in progress. On April 24, 2020, Ms. Dotton responded, “We have requested the refund. I was clear when I told you it would take several days. You will receive it back as soon as possible.” Id. at 11, 50 (internal quotation marks omitted). Ms. Dotton did not send proof of the wire transfer. Plaintiff alleges that on the same day, Mr. Cannon disbursed $42.33 of Plaintiff’s money to “Genesis” for purposes other than procuring PPE. Id. 51 (internal quotation marks omitted). On April 30, 2020, when Plaintiff still had not received the refund, its representative contacted Ms. Dotton to request proof of the steps she had taken to refund Plaintiff’s money. Without providing proof that a refund was in process, Ms. Dotton responded: As I have stated before we have made the request. I was transparent when I told you that it was going to take some time. Your order was in the production process. Unfortunately you didn’t approve of the dates and timeframes. We are working with the organization to refund your money. We are committed to providing this to you. (Doc. 88-21 at 2.) On April 29, May 1, May 8, and May 15, 2020, Ms. Dotton directed Mr. Cannon to make additional payments to General Corporate Services, Inc., VWA Advisors, Montrose Capital, and Woods Oviatt Gilman. Plaintiff alleges that Mr. Cannon made the following disbursements from SBM’s bank account pursuant to Ms. Dotton’s directions: $100,000 of Plaintiff’s money to VWA Advisors on May 1, 2020; $1,695 to “General Corp Svces” on May 4, 2020; $200,000 to VWA Advisors and $600,000 to Montrose Capital and Mr. Gauthier on May 11, 2020; and $200,000 to VWA Advisors, $1,600,000 to Montrose Capital, and $10,000 to Woods Oviatt Gilman on May 19, 2020. (Doc. 87 at 12,
