Full opinion text
OPINION SUE L. ROBINSON, District Judge. I. Introduction This is a civil action brought by plaintiff, Standard Chlorine of Delaware, Inc. (“Standard”), against various individuals and companies which, according to Standard’s pleadings, engaged in a long-term scheme aimed at defrauding Standard of millions of dollars. The original Complaint named as party-defendants two individuals, Anthony R. Sinibaldi (“AS”) and Michael O. Sinibaldi (“MS”), AS’s brother, as well as eight companies , Dover Steel Company, Inc. (“Dover”), Comma Corporation, Lorraine Rental & Equipment Company, Inc. (“Lorraine Rental”), Delaware Rental Company (“Delaware Rental”), SS & H Realty (“SS & H”), SHS Holding Corp. (“SHS”), A.M.B. Construction Company, Inc. (“AMB”) and All-American Promotions, Inc. (“All-American”). Standard subsequently filed an Amended Complaint which, inter alia, added an additional individual defendant, George Mantakounis (“Mantakounis”), as well as another company defendant, Mantas Painting (“Mantas”). Federal jurisdiction is premised on Standard’s inclusion in its pleadings of a number of federal claims brought pursuant to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”). Standard also asserted a number of pendent state law claims in'its pleadings, including claims of fraud and breach of fiduciary duty. These claims are grounded on Standard’s lengthy averments of fact which. detail an elaborate scheme through which Defendants and Mantas Defendants allegedly sought to defraud Standard of substantial funds. Presently before the Court are a number of motions, including discovery-related motions and motions to dismiss Standard’s pleadings for, inter alia, failure to state a claim upon which relief may be .granted. The factual averments set forth in the Amended Complaint, which must be taken as true for purposes of the pending motions to dismiss Standard’s pleadings, Marshall-Silver Construction Company, Inc. v. Mendel, 835 F.2d 63, 64-66 (3d Cir.1987), are briefly summarized below. A. Brief Summary of Standard’s Allegations of Fact . Standard is a Delaware corporation with its principal manufacturing facility (the “Plant”) located in Delaware City, Delaware. Standard is a major producer of chlorinated benzenes, which it first began producing at its Plant in 1966. AS and MS both are former employees of Standard. Standard employed AS from 1966 until December 1990, when he was terminated. During his employment at Standard, AS ^held various positions at different times, including the position of Assistant Plant Manager, which he held from 1974 until 1977, when AS became Standard’s Vice President for Manufacturing. MS worked for Standard from 1966 until May 1987, when he retired. MS also held several different positions at Standard during his employment, including the position of Maintenance Superintendent, which he held from 1977 until 1983, when MS became Plant Engineer and Manager of the Plant’s Maintenance Department. The allegations underlying Standard’s claim that Defendants and Mantas Defendants defrauded plaintiff and engaged in a pattern of racketeering which injured plaintiff and, according to Standard, violated various provisions of RICO briefly are as follows: AS and MS, while executives of Standard, acting in concert with the Company Defendants and others, set up a scheme to defraud Standard by secretly becoming the owners of several “outside” contractors, in order to profit from Standard’s periodic needs for steel fabrication, maintenance and repair services. Hiding from Standard their interests in these contractors for a period of over 10 years, AS and MS willfully and repeatedly injured Standard and profited at Standard’s expense, by awarding various kinds of work to these contractors, by overcharging Standard for the work done, by permitting these contractors to do work of poor quality, and by retaliating against Standard employees who were in a position to make defendants’ wrongdoing' known to Standard’s senior management.' In addition, AS and MS (as well as [Mantakounis]) further profited improperly at Standard’s expense by directing large" amounts of business to Mantas Painting in exchange for substantial payments to them, directly or indirectly, from Mantas Painting. Defendants succeeded in concealing their scheme until 1990, when an investigation into possible improprieties at the Plant revealed the history [of misconduct] described [in Standard’s pleadings]. (D.I. 72 at ¶ 21) B. Pending motions There are numerous motions pending before the Court which will be resolved herein. Defendants initially filed a motion to dismiss (D.I. 18) the original Complaint (D.I. 1), which was fully briefed by the parties. (See D.I. Nos. 22, 35, 38, 54, 59, 60, 101, 102) Standard, however, filed an Amended Complaint which, in the Court’s view, rendered moot Defendants’ motion to dismiss the original Complaint. Accordingly, Defendants’ motion to dismiss Standard’s original Complaint will be denied as moot. Defendants then filed a motion to dismiss (D.I. 75) Standard’s Amended Complaint (D.I. 72). Although it appears from the record that Defendants did not submit any briefs in support of their motion to dismiss the Amended Complaint, Defendants have incorporated by reference their various briefs filed in connection with their initial motion to dismiss into their motion to dismiss Standard’s amended pleading. (See D.I. 75 at ¶¶ 4-6) The court record indicates that Standard similarly has decided to rely on its briefs responsive to Defendants’ motion to dismiss the original Complaint in opposing Defendants’ motion to dismiss the Amended Complaint. Mantas Defendants also moved to dismiss (D.I. 83, 85) the Amended Complaint as to them. This motion was fully briefed by Mantas Defendants and Standard. (See D.I. Nos. 84, 86, 88, 91, 92) In addition, Mantas Defendants filed an application (D.I. 93) for oral argument on its motion to dismiss. The Court will deny the application since the parties’ briefs provided sufficient information for the Court to resolve this motion without oral argument. A number of discovery-related motions are also presently pending before the Court. AS moves the Court to compel Standard’s production of certain insurance policies. The parties have indicated that Standard complied with AS’s discovery request. Accordingly, this motion will be denied as moot. Standard moves for entry of a confidentiality order. (D.I. 62). The parties completed briefing on this motion. (D.I. Nos. 62, 64, 66) Standard and Defendants both filed motions to compel compliance with their respective document production requests. These motions were fully briefed by the parties as well. (D.I. Nos. 67, 68, 69, 71) Mantas Defendants move for a protective order staying discovery as to them. (D.I. 94) Standard and Mantas Defendants filed briefs on this motion. (D.I. Nos. 95, 96, 97) Additionally, Mantas Defendants submitted an application for oral argument on this motion. (D.I. 98) The Court will deny Mantas Defendants’ application since the parties’ briefs sufficiently addressed the issues relevant to this motion such that the Court can resolve it without oral argument. Wilmington Trust Company (“Wilmington Trust” or “the bank”) filed a non-party motion for a protective order (D.I. 63) which seeks to quash or modify a subpoena duces tecum which Standard served on the bank. This motion was briefed by Standard as well as the bank and, like the other motions still pending in this case, is ripe for judicial action. (D.I. 63 and D.I. 65) II. Defendants’ Motion to Dismiss the Amended Complaint Defendants move to dismiss the Amended Complaint on a variety of grounds. A. RICO “Enterprise” In seeking dismissal of the Complaint for failure to state a RICO claim, defendants contend, inter alia, that plaintiffs failed “to inform Defendants, and this Court, who or what is the RICO ‘enterprise’ with respect to each separate RICO Count.” (D.I. 22 at 13, n. 9) Plaintiff clearly alleged in its Complaint, however, that “[t]he association in fact of all defendants constitutes an ‘enterprise’ within the meaning of 18 U.S.C. § 1961(4).” (D.I. 1 at ¶ 166) See Seville Indus. Machinery, 742 F.2d at 790 (plaintiff identified the four entities it believed were the enterprises that conspired against it and the “rules of pleading require nothing more at this early juncture than that bare allegation”); Cemar, Inc. v. Nissan Motor Corp., Civ. No. 87-165-CMW, slip op., 1990 WL 3038 (D.Del.1990) (plaintiff is not required to establish the enterprise requirement, or any other requirement, at the pleading stage; it is enough to identify the enterprise by stating that the defendants formed the enterprise). Defendants’ contention that plaintiff failed to plead a RICO enterprise, therefore, is without merit. B. The RICO “Separate Existence” Requirement The essential elements of a civil RICO claim are “(1) the existence of a RICO ‘enterprise’; (2) the existence of ‘a pattern of racketeering activity’; (3) a nexus between the defendant, the pattern of racketeering activity or the RICO ‘enterprise’; and (4) resulting injury to plaintiff, in his business or property.” Klapper v. Commonwealth Realty Trust, 657 F.Supp. 948, 953 (D.Del.1987). In addition, to establish the existence of a RICO enterprise, a plaintiff must demonstrate that (1) the enterprise is an ongoing organization, with some form of structure which is used in making and carrying out decisions; (2) the enterprise members function as a continuing unit with established duties; and (3) the enterprise has an existence separate from the pattern of racketeering activity in which it engages. United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981); accord United States v. Riccobene, 709 F.2d 214, 221 (3d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983); Seville Indus. Machinery, 742 F.2d at 789-90. Defendants rely on this third element, the separate existence requirement, in moving to dismiss plaintiffs RICO claims. Defendants’ reliance on the separate existence requirement, in this context, is misplaced. The Third Circuit expressly held in Seville that these three requirements are necessary to prove—not to plead—the existence of a RICO enterprise. Indeed, the Third Circuit in Seville reversed the district court’s decision to dismiss the complaint for failure to plead the Riccobene-Turkette requirements. In reversing, the court held as follows: [T]he district court confused what must be pleaded with what must be proved. Riccobene and Turkette certainly stand for the proposition that a plaintiff, to recover, must prove that an alleged enterprise possesses the three described attributes. But neither case speaks to what must be pleaded in order to state a cause of action. The district court erred in applying the Riccobene-Turkette proof analysis to the allegations of the complaint. We need cite no authority for the proposition that the Federal Rules of Civil Procedure were designed to eliminate the vagaries of technical pleading that once plagued complainants, and to replace them with the considerably more liberal requirements of so-called “notice” pleading. Under the modern federal rules, it is enough that a complaint put the defendant on notice of the claims against him. It is the function of discovery to fill in the details, and of trial to establish fully each element of the cause of action. Seville, 742 F.2d at 790. In an effort to rebut the obvious impact of the Seville decision on their position, Defendants contend that their argument is based on a footnote in Seville which, according to Defendants, requires dismissal of Standard’s RICO claims. The Third Circuit stated the following in the footnote upon which Defendants base their argument: In the district court and in its brief on appeal, [plaintiff] attempts to argue that it properly pleaded more enterprises than [the four entities which it had identified in its complaint as the RICO enterprise], and that its complaint should be read to allege as an enterprise any possible combination of the four named enterprises. To support this position, [plaintiff] relies on its allegations in the complaint that the four defendants/enterprises conspired with each other to defraud [plaintiff]. The district court rejected this argument on the ground that a conspiracy to perform the underlying criminal offenses, standing alone, is not sufficient to allege the existence of an enterprise. We’ agree. It is an essential element of the RICO cause of action that the “enterprise” be apart from the underlying pattern of racketeering activity. By limiting its allegations of conspiracy to the underlying offenses, [plaintiff] has affirmatively negated the existence of the third Riccobene factor: an enterprise separate and apart from the pattern of activity in which it engages. By its pleading, [plaintiff] has precluded itself from proving at trial that the four defendants together, or any lesser combination, formed an “enterprise.” Unless the district court allows [plaintiff] to amend its complaint, [plaintiff] will be permitted to establish as enterprises only the four entities it specifically identified as such in its complaint. Seville, 742 F.2d at 790, n. 5 (citations omitted). Defendants’ reliance on this portion of the Seville opinion is misplaced for at least two reasons. First, Standard does not attempt, as the plaintiff did in Seville, to argue that it properly pleaded more RICO enterprises than the entities which it identified in its pleading as the RICO enterprise. Furthermore, Standard does not, as did the plaintiff in Seville, “suggest on the face of the complaint that the enterprise is the same thing as the pattern of racketeering activity— which it cannot be under Seville.” Klapper, 657 F.Supp. at 958. For the reasons stated in the foregoing, the Court rejects Defendants’ argument that Standard’s RICO claims should be dismissed on the ground that it failed to satisfy the separate existence requirement. C. Pleading Predicate Acts of Fraud with Specificity Defendants contend that Standard’s RICO counts should be dismissed on the ground that plaintiff failed to plead the underlying predicate acts of mail and wire fraud with sufficient particularity. Under RICO section 1961(1)(B), racketeering activity is defined to include any act indictable either under the mail fraud statute, 18 U.S.C. § 1341, or under the wire fraud statute, 18 U.S.C. § 1343 . In order to plead an instance of mail or wire fraud, the plaintiff must allege a scheme to defraud in which the defendant “causes” the mails or wires to be used in furtherance of the scheme, together with an allegation of specific intent to commit fraud. See, e.g., Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Fagan, 821 F.2d 1002, 1008 (5th Cir.1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 697, 98 L.Ed.2d 649 (1988). A defendant “causes” the use of the mails or wires in violation of federal law when, in furtherance of the scheme to defraud, he “does an act with knowledge that the use of the mails [or wires] will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended....” Pereira, 347 U.S. at 8-9, 74 S.Ct. at 363. In Seville, another civil RICO case where the underlying RICO predicate acts were grounded on allegations of mail and wire fraud in violation of the federal mail and wire fraud statutes, the Third Circuit set forth what even Defendants recognize to be a “liberal standard for applying Rule 9(b) to RICO predicate acts of mailings or wirings....” (D.I. 22 at 18) Specifically, the court held as follows regarding this issue: We approach this question mindful of our recent admonition that in applying Rule 9(b), “focusing exclusively on its ‘particularity’ language ‘is too narrow an approach and fails to take account of the general simplicity and flexibility contemplated by the rules.’ ” We conclude that the district court subjected [plaintiff’s] allegations of fraud to too s'trict a scrutiny. Rule 9(b) requires plaintiffs to plead with particularity the “circumstances” of the alleged fraud in order to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior. It is certainly true that allegations of “date, place or time” fulfill these functions, but nothing in the rule requires them. Plaintiffs are free to use alternative means of injecting precision and some measure of substantiation into their allegations of fraud.- 742 F.2d at 791 (citations omitted). See also Bernstein v. IDT Corp., 582 F.Supp. 1079, 1085 (D.Del.1984) (Rule 9(b) “does not require an exhaustive cataloguing of facts but only sufficient factual specificity to provide assurance that the plaintiff has investigated ... the alleged fraud and reasonably believes that a wrong has occurred”) (internal quotations and citations omitted). The Court finds that the Amended Complaint at bar sufficiently “injeet[ed] precision and some measure of substantiation into [Standard’s] allegations of fraud”, thereby satisfying the Rule 9(b) standard as interpreted by the Third Circuit in Seville. First, as Defendants apparently concede, Standard alleges with specificity that AS used the telephone two times, once in April 1986 and once in March 1987, purportedly in furtherance of the alleged fraudulent scheme against Standard. (D.I. 1 at ¶¶ 42, 46) Second, Standard alleges that AS caused fraudulent purchase orders to be sent via interstate wire from Standard’s Delaware plant to its executive offices in New Jersey. (D.I. at ¶ 131) Third, Standard alleges that various members of the alleged RICO enterprise had various telephone conversations over interstate telephone lines in connection with the fraudulent contract proposals which were submitted by Defendants to Standard. (D.I. 1 at ¶ 132) Fourth, the Complaint (as well as the Amended Complaint) contains numerous averments indicating that fraudulent contract proposals, fraudulent invoices and fraudulent time sheets were sent by U.S. mail, all allegedly in furtherance of Defendants’ racketeering scheme. (See D.I. 1 at ¶¶ 130, 131, 141, 72, 73) Fifth,' the Complaint (and, likewise, the Amended Complaint)' alleges that both interstate wire facilities and the federal mail service were utilized in defendants’ efforts to fraudulently conceal from and misrepresent to Standard the fact of the Sinibaldi brothers’ ownership interest in Dover, and to conceal Defendants’ role in the chemical spill resulting from the rupture of the 404 Tank. (D.I. 1 at ¶¶ 39, 42, 99, 101) Finally, Standard has alleged with sufficient specificity the facts underlying its claim that AS and MS together with the Mantas Defendants defrauded Standard of substantial funds through a kickback scheme whereby Mantas Defendants were awarded Standard jobs by AS and MS in exchange for direct and indirect payments from Mantas Defendants to AS and MS. Although Standard has not alleged a substantial number of specific instances when Defendants and Mantas Defendants utilized the federal mail service or interstate wire facilities in furtherance of their alleged fraud scheme, it is obvious to the Court that if Standard’s allegations are true, which must be assumed for present purposes, then clearly the U.S. mail service and interstate wire facilities were substantially utilized to further this elaborate, prolonged scheme. The Court, therefore, rejects Defendants’ contention that Standard failed to allege underlying racketeering acts of fraud with adequate specificity. D. Pattern of Racketeering: Relationship and Continuity T9] Defendants’ contention that Standard does not allege in its pleadings a pattern of related and continuous predicate racketeering acts similarly must fail. In order to succeed on a civil RICO claim, which requires proof of a pattern of racketeering-activity, the plaintiff “must show that the racketeering acts are related, and that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1989) (emphasis in original). The Third Circuit has indicated that the factors which should be considered in determining whether alleged racketeering acts are properly characterized as “continuous” and “related” include the following: “[T]he number of unlawful acts, the length of time over which the acts were committed, the similarity of the acts, the number of victims, the number of perpetrators, and the character of the unlawful activity.” Barticheck v. Fidelity Union Bank/First Nat. State, 832 F.2d 36, 39 (3d Cir. 1987). Predicate acts are considered related and continuous, combining to produce a pattern of racketeering activity, if they “ ‘have the same or similar purposes, results, participants, victims, or methods of commission, or are otherwise ... interrelated by distinguishing characteristics,’ so as not to be ‘isolated incidents.’ ” United States v. Grayson, 795 F.2d 278, 290 (3d Cir.1986) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985)). “[T]he threat of continuity may be established by showing that the predicate acts or offenses are part of an ongoing entity’s regular way of doing business” and also may be “sufficiently established where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes.” H.J. Inc., 492 U.S. at 242-43, 109 S.Ct. at 2902. In addition, “[a] party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time.” Id. The averments of the pleading at bar, which must be taken as true for purposes of this motion, Marshall-Silver Construction Company, 835 F.2d at 64-66, clearly indicate that Defendants engaged in continuous and related unlawful acts, through which they sought to systematically defraud Standard. Standard avers that defendants committed literally dozens of fraudulent acts over a fifteen-year period. Many of the unlawful acts allegedly committed by Defendants, according to the Standard’s allegations, are similar and are interrelated. For example, Standard alleges that Defendants AS and MS fraudulently sought to conceal their ownership interests in Dover and other Company Defendants in furtherance of a long-term scheme allegedly aimed at de-’ frauding Standard of millions of dollars. This scheme, it is alleged, was designed to allow AS and MS to ensure (through their positions as Standard employees) that various contract work and non-contract maintenance work required by Standard would be improperly and fraudulently given to Dover and other Company Defendants. The Amended Complaint further shows that the predicate acts allegedly committed by Defendants have (1) the same victim (Standard); (2) similar and interrelated purposes (to defraud Standard of money); (3) the same or similar participants (the association-in-fact and its participants); and (4) similar methods of commission (mail and wire frauds involving bid-rigging, fraudulent invoices, misrepresentations, self-dealing, etc.). Finally, Standard clearly alleges that, for a period of fifteen years, fraud was Defendants’ “regular way of doing business.” Defendants’ contention that the Amended Complaint does not allege a pattern of racketeering activity is without merit. E. RICO Section 1962(a): Injury Resulting from Investment of Income Derived from a Pattern of Racketeering Activity Defendants contend that Standard’s section 1962(a) claim should be dismissed because “there is no possible scenario under which Plaintiff could plead that its alleged injuries were caused by a ‘use or investment’ of income.” (D.I. 22 at 23) Although Defendants’ sweeping proposition clearly goes too far, the Court agrees that controlling precedent in this circuit requires dismissal of Standard’s section 1962(a) claim. To sustain a civil RICO claim under any of the subsections of RICO section 1962, the plaintiff must plead and prove that his alleged injury was caused by the violative conduct described in the particular section 1962 subsection upon which he relies. 18 U.S.C. § 1964(c). The Third Circuit has held that in pleading a section 1962(a) claim specifically, the plaintiff must allege an injury that was “caused -by the use or investment of income in the enterprise, rather than by the predicate racketeering acts or pattern.” Rose v. Bartle, 871 F.2d 331, 357 (3d Cir. 1989); accord Brittingham v. Mobil Corporation, 943 F.2d 297, 304 (3d Cir.1991) (“A § 1962(a) violation occurs not when the defendant engages in the predicate, acts, but only when he uses or invests the proceeds of that activity in an enterprise.”). The Third Circuit, however, also stated in Brittingham, 943 F.2d at 304, that to prevail on a section 1962(a) claim, a plaintiff must “demonstrate that 'the use or investment of racketeering income was a ‘substantial factor’ in causing the injury.” In an obvious effort to state a section 1962(a) claim comporting with the just-quoted language from Brittingham, Standard sets forth the following allegation in its Amended Complaint: Defendants’ use or investment of racketeering income, as aforesaid, constituted a substantial factor in the sequence of responsible causation of injuries to Standard’s business or property over a 15-year period of time. Such use of reinvestment did not constitute a normal reinvestment of corporate, profits, in that, among other things, each- successive Company Defendant tvould not have ,been created and, therefore would not have been capable of perpetrating its own forms of fraud against Standard, if income from each earlier fraud against Standard had not been used to underwrite and operate each successive new company involved in the enterprise, causing, Standard to pay each successive member of the enterprise excessive and unnecessary amounts for the various services that Company Defendant purported to provide to Standard. Standard’s injuries, therefore, constituted a reasonably foreseeable or a natural consequence of such use or investment of income. (D.I. 72 at ¶ 180) (emphasis supplied). The Court recognizes that Standard has alleged that investment of racketeering income was a “substantial factor” in causing some of its injuries because, according to Standard, said income was used to create new enterprise member companies that in turn defrauded Standard by “causing Standard to pay each successive member of the enterprise excessive and unnecessary amounts for the various services that Company Defendant purported to provide to Standard.” At the same time, however, the averments underlying Standard’s section 1962(a) claim also clearly indicate that these newly-formed, racketeering income funded enterprise members would not have injured Standard, i.e., investment of racketeering income would not have caused plaintiff injury, unless these defendant companies had perpetrated additional fraudulent racketeering acts against Standard. As discussed above, a plaintiff “who allege[s] injury resulting from defendants’ fraudulent business practices ha[s] not pled a valid section 1962(a) claim.” Glessner v. Kenny, 952 F.2d 702, 710 (3rd Cir.1991); see also Teti v. U.S. Healthcare, Inc., 1989 W.L. 143274, at *1 (E.D.Pa. Nov. 21, 1989) (“The fact that plaintiffs appear to claim that the fraud allegedly perpetrated on them would not have occurred without the investment of funds from earlier racketeering activities does not change the fact that their alleged injury stems from the alleged fraudulent representations, and not from the investment of funds by the defendants.”), quoted with approval in Glessner v. Kenny, 952 F.2d at 709. The Third Circuit has further indicated that section 1962(c), rather than section 1962(a), “is the proper avenue to redress injuries caused by the racketeering acts themselves.” Brittingham, 943 F.2d at 305. Although it appears that investment of racketeering income played a role in some of Standard’s injuries in that it allegedly was a factor in Defendants’ perpetration of additional racketeering acts of fraud against plaintiff, the Amended Complaint nonetheless indicates that “[t]he direct cause of [Standard’s] alleged injuries was the fraudulent conduct.” Id. In the case at bar, the mere investment of racketeering income into the new enterprise members would not have resulted in financial injury to Standard unless these entities were utilized by the enterprise to perpetrate new frauds against plaintiff. Because the Amended Complaint indicates that Standard’s injuries were caused by the alleged racketeering acts themselves, rather than by the mere investment of racketeering income into the enterprise, section 1962(c), not section 1962(a), is the “proper avenue to redress [Standard’s alleged] injuries .... ” Id. For the foregoing reasons, the Court will dismiss Standard’s section 1962(a) claims. F. RICO Section 1962(b): Injury Resulting from Acquisition or Maintenance of an Enterprise through a Pattern of Racketeering Activity Defendants contend that “[sjince the [Amended] Complaint is fatally deficient in failing to plead injuries caused by Defendants’ ‘acquisition or maintenance’ of the enterprise, Count IV [of the Amended Complaint] fails to state a claim under § 1962(b).” (D.I. 22 at 25) The Third Circuit has opined that to state a claim “under § 1962(b), a plaintiff must allege a specific nexus between control of a named enterprise and the alleged racketeering activity.” Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1411 (3d Cir.1991) (citing Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1168 n. 2 (3d Cir.1989)). This requirement is analogous to the section 1962(a) requirement to the same effect, which the Court discussed in the foregoing section. The Court interprets the above-quoted language from the Third Circuit’s opinion in Kehr Packages as requiring a plaintiff claiming a section 1962(b) violation to show that his alleged injury resulted not from underlying racketeering acts committed by the RICO enterprise, which are redressable under section 1962(c), but from the defendant’s acquisition or maintenance of an interest in or control over the enterprise. Other courts considering this issue have reached a similar conclusion. See, e.g., Danielsen v. Burnside-Ott Aviation Training Center, Inc., 941 F.2d 1220, 1231 (D.C.Cir.1991); O & G Carriers, Inc. v. Smith, 799 F.Supp. 1528, 1543 (S.D.N.Y.1992); Casper v. Paine Webber Group, Inc., 787 F.Supp. 1480, 1494-95 (D.N.J.1992); U.S. Concord, Inc. v. Harris Graphics Corp., 757 F.Supp. 1053, 1060 (N.D.Cal.1991). Thus, where a plaintiffs alleged injury results only from the predicate racketeering acts themselves, and not from the defendant’s acquisition or control of an interest in the enterprise through a pattern of racketeering, a section 1962(b) claim cannot be sustained. See, e.g., Heaney v. Associated Bank, N.A., 88-C-913, 1990 WL 446707, 1990 U.S.Dist. LEXIS 17317 (E.D.Wis. July 11, 1990) (“Similar to § 1962(a), in order to allege injury by reason of § 1962(b), a RICO plaintiff must démonstrate that the defendant’s acquisition or control of an enterprise injured plaintiff ... [I]njury from the racketeering acts themselves is not sufficient; rather, a plaintiff must plead facts tending to show that the acquisition or control of an interest injured plaintiff.”). It appears that section 1962(c), rather than section 1962(a) or (b), “is the proper avenue to redress injuries caused by the racketeering acts themselves.” See Brittingham, 943 F.2d at 305. If this were not the case, then the distinction between a section 1962(b) claim and a section 1962(c) would be obsem-ed. See Danielsen, 941 F.2d at 1230-31; Glessner, 952 F.2d at 709. In the instant case, plaintiffs section 1962(b) claim, according to the Amended Complaint, is grounded on the following allegation: Defendants’ acquisition or maintenance of an interest in or control over the enterprise constituted a substantial factor in the sequence of responsible causation of injuries to Standard’s business or property,, over a 15-year period, in that, among other things, each of the Company Defendants was enabled to defraud and injure Standard solely by having been acquired by or brought under the control of one or more of the other defendants. Moreover, Standard would have refused to accept services from, and thus would not have been defrauded and injured by, any of the defendants, if it had been informed of the true facts with respect to the ownership and control of each of the Company Defendants. Standard’s injuries, therefore, constituted a reasonably foreseeable or a natural consequence of such acquisition or maintenance of an .interest or control. (D.I. 72 at ¶ 184) (emphasis supplied). This allegation, like Standard’s pleading in support of its section 1962(a) claim, indicates that plaintiff seeks to recover damages under section 1962(b) for injuries allegedly resulting from predicate racketeering acts of fraud. Although Standard clearly has alleged that Defendants’ acquisition and control of enterprise members allowed the enterprise to further injure plaintiff through additional fraudulent activities, the Court finds that injuries resulting from said underlying racketeering acts cannot serve as a basis for section 1962(b) liability. Rather, these injuries are properly redressed under section 1962(e). “To analyze [Standard’s] failure in this count at any great length would be redundant to [the Court’s] analysis of the failure of [Standard’s section 1962(a) claims].” Danielsen, 941 F.2d at 1231. For the reasons stated, the Court will dismiss Standard’s RICO section 1962(b) claims. G. RICO Section 1962(c): Liability for Conducting an Enterprise’s Affairs through a Pattern of Racketeering Under section 1962(c), it is unlawful for any “person” employed by or associated with any “enterprise” from conducting or participating in the “conduct of such enterprise’s affairs through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). Defendants seek dismissal of Standard’s section 1962(c) claims because, according to defendants, plaintiff failed to satisfy the so-called “distinctiveness” requirement, first enunciated by the Third Circuit in B.F. Hirsch v. Enright Refining Co., 751 F.2d 628, 633-34 (3d Cir.1984), whereby the “person” charged with a section 1962(c) violation, i.e., conducting or participating in the affairs of an enterprise through a pattern of racketeering, must be distinct from the “enterprise” which associated with or employed the defendant “person”. The Enright distinctiveness requirement originates both from the language of the statute -itself as well as from sound interpretation of legislative purpose. First, “the plain language of [section 1962(c) ] provides that the person must be ‘employed by or associated with’—and therefore separate from—the enterprise.... ” Brittingham, 943 F.2d at 300 (citing B.F. Hirsch, 751 F.2d at 633-34). Second, as the court stated in Enright, [o]ne of the Congressional purposes in enacting RICO was to prevent the takeover of legitimate businesses by criminals and corrupt organizations. It is in keeping with that Congressional scheme to orient section 1962(c) toward punishing the infiltrating criminals rather than the legitimate corporation which might be an innocent victim of the racketeering activity in some circumstances. 751 F.2d at 633-34. Likewise; the Third Circuit has noted that “section 1962(c) was intended to govern only those instances in which an ‘innocent’ or ‘passive’ corporation is victimized by the RICO ‘persons,’ and either drained of its own money or used as a passive tool to extract money from third parties.” Petro-Tech, Inc. v. Western Co. of North America, 824 F.2d 1349, 1359 (3d Cir. 1987). Consistent with this legislative purpose, the Third Circuit extended the Enright distinctiveness rule and held that a “corporate ‘enterprise’ cannot be held vicariously liable for the § 1962(c) violations of its employees, either for aiding and abetting, or under a theory of respondeat superior.” Brittingham, 943 F.2d at 300 (construing Petro-Tech, Inc. v. Western Co. of North America, supra). In Brittingham, the court “clarified the law in this circuit as to the status of claims under section 1962(c) that allege an association in fact among a corporation and its employees, agents, and affiliated entities.” Glessner, 952 F.2d at 710. The Brittingham court explained as follows regarding the distinctiveness requirement: [A] § 1962(c) enterprise must be more than an association of individuals or entities conducting the normal affairs of a defendant corporation. A corporation must always act through its employees and agents, and any corporate act will be accomplished through an “association” of the individuals or entities. Consequently, the Enright rule would be eviscerated if a plaintiff could successfully plead that the enterprise consists of a defendant corporation in association with employees, agents, or affiliated entities acting on its behalf. 943 F.2d at 301. The plaintiffs in Brittingham “sued Mobil and Mobil Chemical, rather than the individuals who may have committed the alleged fraud on behalf of these corporations.” Id. at 300. The court affirmed the district court’s dismissal of the plaintiffs’ section 1962(c) claims on summary judgment, finding that the advertising agencies, which together with the corporate defendants constituted the alleged association in fact enterprise, “did no more than conduct the normal affairs of the defendant corporations.” Id. at 303. The court rejected the plaintiffs’ section 1962(c) claims against Mobil and its subsidiary because, inter alia, the alleged association in fact enterpi’ise was no “more than an association of individuals or entities conducting the normal affairs of a defendant corporation.” See id. at 301-303. The court indicated that to allow such a claim would “circumvent” the distinctiveness requirement and potentially result in a corporation improperly being- held vicariously liable for the racketeering acts of its employees, agents, affiliates or others acting on its behalf. See id. It should be noted that Brittingham, as well as Glessner, in sharp contrast to the allegations at bar, merely involved “an alleged marketing fraud in which the corporations ... had no separate active roles in the alleged racketeering activity apart from the actions of their agents and affiliates that also comprise part of [the] plaintiffs’ alleged ‘association in fact.’ ” Glessner, 952 F.2d at 712-13. Defendants submitted two letter-briefs bringing Brittingham and Glessner to this Court’s attention and setting forth their arguments for dismissal of Standard’s section 1962(c) claims on the basis of these obviously controlling authorities. The following excerpt from Defendants’ second letter-brief essentially summarizes their position: Plaintiff herein pleads that which Glessner and Brittingham prohibit—an association of companies with their several officers, affiliates or subsidiaries—and seeks to hold these same enterprise members liable as the “persons” who conducted the enterprise’s affairs through alleged racketeering acts. See Complaint ¶ 166 (pleads association in fact of all Defendants). Plaintiff repeatedly alleges throughout the complaint that the interrelated company defendants/enterprise members were “acting in concert with” the individual defendant/enterprise members who were officers of employees of the companies. Under Glessner and Brittingham, Plaintiff would be holding the enterprise liable for conducting the enterprise’s affairs, which is not permitted under § 1962(c). (D.I. 101 at 3) Contrary to Defendants’ argument, the issue at bar, in this Court’s view, is not whether the “persons” charged in the Amended Complaint with section 1962(c) violations collectively are non-distinct from the alleged association in fact enterprise composed of those same individuals and entities. Rather, the question here is whether a particular “person” sued under section 1962(c) is distinctive from the “enterprise.” When the issue is framed properly in this manner, it becomes clear that each of the individual defendants and each of the Company Defendants is singularly distinct from the alleged association-in-fact enterprise collectively composed of these individuals and entities. According to the Amended Complaint, MS and AS, two of the three individual defendants, own common stock, including some majority interests, in at least three, but not all, of the nine closely-held corporations named as party defendants. Plaintiff avers that other Company Defendants, including Dover and Delaware Rental are owned by other Defendants. The alleged association-in-fact enterprise, however, includes at least one company, Mantas Painting, which is owned by individual defendant George Mantas and which, according to the Amended Complaint, is not affiliated with any of the other company or individual defendants. Furthermore, it is significant to note that individual defendants AS and MS did not merely act as officers or employees of enterprise members, but instead acted in their dual roles as Standard employees and enterprise associates.' Therefore, the association-in-fact enterprise, as plead in the Amended Complaint, is distinct from any of the particular company or individual defendants. In other words, the alleged enterprise does not “consistí ] of a defendant corporation in association with employees, agents, or affiliated entities acting on its behalf’, Brittingham, 943 F.2d at 301. Likewise, the association-in-fact, as averred in the Amended Complaint, is not “merely [a] combination ] of individuals or entities affiliated with a defendant corporation”, id. Indeed, there is no single entity or corporate defendant that is non-distinct from the alleged association-in-fact enterprise. A contrary conclusion here would quite inappropriately “permit individuals to escape the reach of RICO through the simple artifice of incorporating”, Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986, 995 n. 7 (8th Cir.1989) (cited with approval in Brittingham, 943 F.2d at 301302). There are additional grounds upon which the Court finds that Defendants’ position should be rejected. As discussed above, the Enright distinctiveness rule arises, at least in part, from the notion that “RICO sanctions [should be] directed at the persons who conduct the racketeering activity, rather than the enterprise through which the activity is conducted.” Brittingham, 943 F.2d at 301. This ensures that a corporate defendant also named as the enterprise will not be held vicariously liable for the actions of its employees. See id. at 302; B.F. Hirsch, 751 F.2d at 633-34. The Court is convinced that allowing Standard to proceed with its section 1962(c) claims, against either the individual defendants or the Company Defendants, will not result in any “innocent” victim corporations being held vicariously liable for the racketeering acts of others. The Court is of the view that the result reached herein comports with the principle that federal courts should “orient section 1962(c) toward punishing the infiltrating criminals rather than the legitimate corporation which might be an innocent victim of the racketeering activity. ...” B.F. Hirsch, 751 F.2d at 634. Indeed, for reasons discussed below, it appears that the Company Defendants will be liable, if at all, for their own racketeering activities rather than being vicariously liable for the unlawful acts of their employees, agents or affiliates. Even assuming that this case involved an association-in-fact enterprise which is nothing more than an association of individuals and entities conducting the affairs of a defendant corporation, which certainly is not the case here, the following passage from the Third Circuit’s recent opinion in Brittingham, 943 F.2d at 302, nonetheless illustrates why section 1962(e) arguably is a proper theory of liability in the instant case, at least as to the individual defendants: [^individual defendants, in contrast to collective entities, are generally distinct from the enterprise through which they act. Unlike a collective entity, it is unlikely that an individual by himself would constitute a valid enterprise. Cf. United States v. Benny, 786 F.2d 1410, 1415-16 (9th Cir.) (sole proprietorship with four employees is distinct from defendant owner), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986). Thus, distinctiveness concerns are generally not present when an individual defendant is also part of an association-in-fact that constitutes the enterprise. See, e.g., Jacobson v. Cooper, 882 F.2d 717, 720 (2d Cir.1989) (upholding [section 1962(c) ] claims where individual defendants were named as part of association-in-fact enterprise); United States v. Perholtz, 842 F.2d 343, 353-54 (D.C.Cir.) (same), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). In the instant case, the Amended Complaint clearly alleges that AS and MS, who are named as defendant “persons” for section 1962(c) purposes, were associated with or employed by various component-members of the association-in-fact-enterprise and that they conducted the enterprise’s affairs through a pattern of racketeering. Furthermore, as Standard has appropriately argued, the fraudulent actions of AS and MS were not performed solely in their capacity as enterprise employees “conduct[ing] the normal affairs of the defendant corporations”, Brittingham, 943 F.2d at 303. Instead, AS and MS committed fraudulent acts in their dual roles both as enterprise members and as Standard employees. Whether some or all of the defendant companies with which AS and MS associated were legitimate businesses that were infiltrated and thereby victimized by these individuals, and whether AS and MS used said corporate members for their own benefit, are factual issues which the Amended Complaint does not clearly resolve and which the Court will not consider at this stage of the proceedings. See Glessner, 952 F.2d at 713. Clearly, legitimate corporations will not be made liable for the racketeering acts of AS and MS by allowing this claim to go forward as to these two individual defendants. Accordingly, Defendants’ contention that Standard’s section 1962(c) claims should be dismissed on grounds of non-identity appears to be without merit, at least with respect to the individual named defendants, i.e., AS and MS. There is authority which indicates also that even the corporate defendants named in Standard’s Amended Complaint may be liable under section 1962(c), even if it were assumed that the alleged association-in-fact enterprise was- a mere combination of employees, agents and affiliates acting on behalf of a defendant corporation. The Third Circuit has held that “[wjithout allegations or evidence that the defendant corporation had a .role in the racketeering activity that was distinct from the undertakings of those acting on its behalf, the distinctiveness requirement is not satisfied.” Brittingham, 943 F.2d at 302. “Bnttingham requires [Standard’s] complaint to allege that the corporate defendants have played some distinct and active role in the alleged racketeering activity apart from the actions of their employees, affiliates, and agents if they are jointly to be regarded as an association in fact.” As the court held in Petro-Tech, Inc., 824 F.2d at 1361, where the corporate defendant “is alleged to have attempted to benefit from its employees’ activity, it is appropriate to allow the victims of that activity to recover.” Standard properly contends that in the case at bar, section 1962(c) is an appropriate theory of liability as to some if not all of the named corporate defendants since it is alleged in the Complaint (and the Amended Complaint) that these entities, in addition to being members of the association-in-fact enterprise, played an active and distinct role in the alleged racketeering activity apart from the actions of their employees, affiliates and agents. (See, e.g., D.I. 1 at ¶¶ 54-58, 67-68, 73, 84) Additionally, there are allegations in the Amended Complaint indicating that at least some of these entities sought to benefit from the racketeering activities of their employees and directors. Since Defendants have not even attempted to address these issues, and since the Court is unwilling to sift through the averments of Standard’s lengthy Amended Complaint to determine which, if any, corporate defendants cannot be liable under section 1962(c) on the ground that they did not play an active and distinct role in the alleged racketeering activity apart from the actions of their employees, affiliates and agents, the Court will deny defendants’ motion to dismiss Standard’s section 1962(c) claims. H. RICO Section 1962(d): Liability for Conspiring to Violate RICO Sections 1962(a), (b) and (c) Defendants’ only argument in favor of dismissal of Standard’s section 1962(d) claim is that such a claim cannot be sustained in the absence of a viable claim under sections 1962(a), (b) or (c). (D.I. 22 at 29) Since the Court has determined that Standard’s claims under section 1962(c) cannot be dismissed at this time, Defendants’ motion to dismiss Standard’s section 1962(d) claim must be denied. I. Dismissal of Standard’s RICO Claims Against Defendants AMB, SS & H Realty, SHS Holding, and All-American for Failure to Allege a Pattern of Racketeering Activity on the Part of these Defendants Defendants contend that dismissal from this action is proper as to a number of the Company Defendants on the ground that “the [Amended] Complaint fails to allege sufficient predicate RICO acts, or even mention any actionable conduct whatsoever, on the part of AMB, SS & H Realty, SHS Holding Corp. and All-American Productions, Inc.” (D.I. 22 at 30) In support of this contention, Defendants correctly posit that “[t]o state a RICO claim against a defendant, the Complaint must plead at least two predicate acts of racketeering activities by that defendant, which amount to a ‘pattern’ of racketeering activity.” (D.I. 22 at 30) (citing 18 U.S.C. § 1962(c); Jordan v. Berman, 758 F.Supp. 269, n. 2 (E.D.Pa.1991); Cemar v. Nissan Motor Corp., Civ. No. 87-165-CMW, at 4, 1990 W.L. 3038 (D.Del.1990)). This pleading requirement, however, applies only to RICO claims brought under subsections (a), (b) and (c) of section 1962, and do not apply to section 1962(d) claims. Standard’s response to this Defendants’ argument indicates that plaintiff failed to allege two or more specific acts of racketeering against said defendants. (See D.I. 35 at 48-49) The claims brought against these Company Defendants under section 1962(c) accordingly must be dismissed. Standard correctly argues, however, that a plaintiff can sustain a section 1962(d) RICO conspiracy claim despite the fact that the defendant did not commit two or more predicate racketeering acts. (D.I. 35 at 45—48) The following excerpt from the Third Circuit’s opinion in Shearin, 885 F.2d at 1169, supports Standard’s argument: Predicate acts for [RICO] conspiracy do not of necessity consist of section 1961(1) racketeering activity. To the contrary, a conspiracy to commit the other RICO violations may occur absent the actual commission of the other violations or the racketeering activities that underpin them. All that need be shown is that the conspirators agreed to engage in a pattern of racketeering activity. See United States v. Brooklier, 685 F.2d 1208, 1222 (9th Cir.1982). Acts that further a section 1962(d) conspiracy thus may cause harm even when they do not themselves qualify as racketeering activity. Taking into account all the provisions of section 1962, either racketeering activity or classic overt conspiracy acts may qualify as “predicate acts” to a RICO violation that causes injury. Defendants have not sought dismissal of Standard’s RICO conspiracy claims on any grounds other than the failure to state claims under sections 1962(a), (b) and (c). .See supra at note 10. Because these Company Defendants may have committed “classic overt conspiracy acts”, which may qualify as underlying predicate acts to a section 1962(d) violation, and because Defendants have not contended nor demonstrated that Standard did not allege sufficient predicate acts of conspiracy as to these parties, dismissal of Standard’s section 1962(d) claims against these Company Defendants will not be granted at this time. J. Standard’s Punitive Damages Claims Defendants contend that Standard’s demand for punitive damages must be stricken because, according to Defendants, punitive damages cannot be collected under RICO since the statute specifically provides for treble damages. At least one court in this Circuit has so held. See Moravian Dev. Corp. v. Dow Chemical Co., 651 F.Supp. 144, 149-50 (E.D.Pa.1986). The Court agrees that punitive damages are not proper under RICO since the Act already provides for treble damages. See id. However, Standard’s Amended Complaint includes a number of state law claims, including claims for common law fraud and willful breach of fiduciary duty, to which punitive damages may properly be appended. See Kranzdorf v. Green, 582 F.Supp. 335, 338 (E.D.Pa.1983). Defendants do not contend that punitive damages cannot be recovered under these state law claims. Accordingly, the Court rejects Defendants’ contention that Standard’s punitive damages demand must be stricken. K. Dismissal of Standard’s State law Claims for Lack of Subject Matter jurisdiction Defendants seek dismissal of Standard’s state law claims on the ground that the Court should not exercise its discretionary pendent jurisdiction over these claims unless Standard’s RICO claims can withstand Defendants’ motion to dismiss. Because the Court already has determined that some of Standard’s RICO claims cannot be dismissed, at least not at this early stage of the proceedings and on the record as it stands today, the Court will retain jurisdiction over Standard’s state law claims for the time being. L. Whether Standard’s Negligence Claim is Barred by the Principle of Claims Preclusion Standard seeks damages from Dover which allegedly resulted from Dover’s negligent repair of one of Standard’s chemical storage tanks, i.e., “Tank 404”. Defendants contend that this claim is barred by principles of res judicata because, according to Defendants, Standard brought a Delaware state court action seeking damages from Dover in connection with the same repair incident. The parties cite arguably conflicting authorities on the issue of whether the Court is permitted to take judicial notice of the prior state court proceedings, which are not mentioned in Standard’s pleadings, when ruling on a motion to dismiss. Defendants contend that the Court may take judicial notice of the prior action despite the fact that Standard’s pleadings, which of course must be taken as true, do not contain any indication of this prior state court proceeding. (D.I. 22 at 38 (citing, inter alia, Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416 n. 3 (3d Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988)). Standard contends, however, that a motion to dismiss grounded on res judicata can be granted only if the existence of this affirmative defense appears on the face of the complaint. (D.I. 35 at 56 n. 41 (citing authorities)) The Court finds it unnecessary to resolve this question at the present time, for the reasons discussed below. Standard contends that res judicata does not apply here because Dover obtained the prior favorable court judgment by fraudulently concealing from Standard facts indicating that Dover performed the negligent repairs on Tank 404. (D.I. 35 at 56 (citing Restatement (Second) of Jtidgments § 70, comment d (1982)) Since defendants concede, consistent with Standard’s version of the facts, that the state court dismissed Standard’s case against Dover because Standard was unable to prove that Dover had performed any repair's on Tank 404, and because the Amended Complaint clearly alleges that Dover fraudulently concealed the fact that it had actually performed repairs on Tank 404, the Court will not grant Defendants’ motion to dismiss Standard’s negligence claim on res judicata grounds. M.Standard’s Claim Against MS for Breach of Fiduciary Duty Defendants contend that “a mere employee does not ordinarily occupy a position of trust and confidence toward his employer.” (D.I. 22 at 40 (citing Brophy v. Cities Service Co., 31 Del.Ch. 241, 70 A.2d 5, 7 (1949)) Defendants further posit that a “fiduciary duty is rarely owned by an employee and only arises in special circumstances of trust and confidence.” (D.I. 22 at 40 (citing eases)) Similarly, Defendants assert that for an employee “to rise to the level of a fiduciary, the employee must be given confidential information by the employer ,.. which the employee then uses for his own benefit.” (D.I. 22 at 40 (emphasis in original)) Defendants conclude that since MS was “only a maintenance employee of Standard”, and since it is not alleged by Standard that he received any confidential information from Standard which MS used for his own benefit, plaintiffs claim against MS for breach of fiduciary duty should be dismissed. As an initial matter, it must be stated that Defendants’ characterization of MS as “only a maintenance employee” misconstrues the averments of the Amended Complaint as to MS’s actual level of responsibility and discretion while he was employed by Standard as a Plant Engineer and Manager of the Plant’s Maintenance Department. Furthermore, Defendants have construed Delaware law too narrowly on the issue of when an employee can be liable for breach of a fiduciary duty. In Brophy, 70 A.2d at 7, the court held that a “mere employee, [who is] not an agent with respect to the matter under consideration, does not ordinarily occupy a position of trust and confidence toward his employer.” (Emphasis supplied) The court also held that an employee may be liable to his employer for “breach of a confidential relation” because “[jjJublic policy will not permit an employee occupying a position of trust and confidence toward his employer to abuse that relation to his own profit____” Id. at 8. Standard contends that MS acted—not as a mere employee—but as an agent for Standard when he dealt with outside companies such as Dover and Mantas Painting. Standard also contends that whether an employee owes a fiduciary duty to his employer turns on the application of the law of agency and trust to the particular facts as well as to the employee’s particular duties, responsibilities and actions. Cf. Science Accessories Corp. v. Summagraphics Corp., 425 A.2d 957, 964 (Del.1980) (Delaware law of corporate opportunity involves application of agency fiduciary law to a specific corporate fact scenario and “sets the parameters of permissible employee conduct consistent with an employee’s fiduciary duties to his employer of loyalty and fair dealing”). Although the Court is not prepared to resolve here the factual ques-tions of whether MS was an agent or employee of Standard when he allegedly engaged in the fraudulent activities detailed in the Amended Complaint, or whether MS owed and breached any fiduciary duties of loyalty and fair dealing to Standard, it appears from Standard’s allegations that MS arguably acted as an agent for Standard rather than as a mere employee in these transactions. Accordingly, Defendants’ motion to dismiss thi