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August 1, 2005.

Tumi, Inc.
Excel Corp., et al.

The opinion of the court was delivered by: WILLIAM J. MARTINI, District Judge


Dear Counsel:

  This matter comes before the Court on Defendant Excelcorp's*fn1 motion to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). There was no oral argument. Fed.R.Civ.P. 78. For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART. Accordingly, Count Five is DISMISSED WITHOUT PREJUDICE.


  This action, before this Court on allegations of diversity jurisdiction under 28 U.S.C. § 1332, was commenced on or about January 24, 2005 by Plaintiff Tumi, Inc. ("Tumi"), a New Jersey corporation with its principal place of business in New Jersey, against Excelcorp, a Nevada corporation with its principal place of business in Nevada. (See Compl. ¶¶ 1-4.) It is also brought against unnamed Defendants John Does 1-20, Jane Roes 1-20, and ABC COS. 1-20 (referred to collectively herein as "unnamed Defendants"). (See id. ¶¶ 5-7.) The action arises out of Excelcorp's purported breach of a contract with Tumi concerning Excelcorp's participation in Tumi's so-called "Special Markets Program." (See generally id. ¶¶ 1-19.) The following are the relevant allegations.

  Tumi's business consists of manufacturing and distributing globally recognized "luggage, leather goods, business cases, personal leather goods, women's products and related executive accessories" marketed under its name. (See id. ¶ 8.) It distributes and sells its merchandise primarily through high-end department stores, luggage speciality stores, Tumi-owned stores, dealer-operated Tumi stores, and Tumi shops located in or at other retail establishments. (See id. ¶ 9.) However, Tumi also markets and sells its products through entities participating in its "Special Markets Program," under which program participants may sell Tumi products to corporations or other groups for their "internal use" — that is, participating entities may not simply resell the Tumi products on the market. (See id. ¶¶ 10-11.) Not surprisingly, Tumi engraves its products and traces their circulation in commerce pursuant to its so-called "Tumi Tracer Program." (See id. ¶ 12.)

  On or about March 25, 2004, Excelcorp executed and delivered to Tumi a "Special Markets Memo" detailing the terms and conditions of its participation in Tumi's Special Markets Program. (See id. ¶¶ 15-16.) Under the terms of the Special Markets Memo, Excelcorp was prohibited from selling or trans-shipping Tumi merchandise received under the Special Markets Program to groups of end-users other than those approved by Tumi. (See id. ¶ 15.) The Special Markets Memo, as delivered to Excelcorp, also provided that Tumi would be entitled to certain liquidated damages and could immediately terminate the agreement if Excelcorp sold or trans-shipped Tumi products to unauthorized end-users. (See id.) However, allegedly unbeknownst to Tumi, Excelcorp altered the terms of the Memo upon execution such that, counter to the Memo's original terms: (1) Excelcorp would not be liable to Tumi for liquidated damages; and (2) Tumi would not have the right to immediately terminate the premium account arrangement if Excelcorp sold or trans-shipped Tumi products to unauthorized end-users. (See id. ¶ 16.)

  A few months later, between August and October 2004, Tumi, oblivious to Excelcorp's changes to the Memo, sold $100,000 worth of products to Excelcorp. (See id. ¶ 17.) Sometime thereafter, Tumi learned (by means of the Tumi Tracer Program) that products obtained by Excelcorp under the Special Markets Program and pursuant to Excelcorp's Special Markets Memo were being offered for sale by Costco-Japan, an unauthorized dealer. (See id. ¶ 18.) Tumi also learned that Tumi products obtained by Excelcorp from unnamed Defendants were being offered for sale by Costco-Japan. (See id. ¶ 19.) This not only violated the terms of Excelorp's and the unnamed Defendants' participation in the Special Markets Program (see id. ¶¶ 22, 41), it also allegedly interfered with Tumi's agreements with certain Japanese businesses regarding the distribution of Tumi products in Japan (see id. ¶ 26). Specifically, throughout the relevant time period, Tumi had an on-going joint venture agreement ("Japan Agreement") with two Japanese corporations — Ace Co., Ltd. ("Ace") and Itochu Co. ("Itochu") — for the distribution and sale of Tumi merchandise in Japan. (See id. ¶ 13.) These agreements made Itochu the exclusive importer and Tumi Japan the exclusive distributor of Tumi products in Japan. (See id. ¶ 14.) Excelcorp allegedly sold its Tumi products to Costco-Japan knowing that Tumi "had an exclusive arrangement for [the] sale and distribution of its products in Japan." (See Id. ¶ 28.)

  Based on these allegations, Tumi asserts four state law causes of action for breach of contract, tortious interference with contract, fraudulent misrepresentation, and conspiracy. (See id. ¶¶ 20-42.) It seeks damages, costs, attorneys' fees, and injunctive relief. (See id. ¶¶ 24, 31, 37, 39, 42.) Excelcorp now moves to dismiss the Complaint in its entirety. (See generally Memorandum of Law in Support of Defendant Excelcorp's Motion to Dismiss Plaintiff Tumi, Inc.'s Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [hereinafter "Def.'s Mem."].)


  I. Standard of Review

  In deciding a motion to dismiss under Rule 12(b)(6), all allegations in the complaint must be taken as true and viewed in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975). A court may dismiss a complaint for failure to state a claim only if, after viewing the allegations in the complaint in the light most favorable to the plaintiff, it appears beyond doubt that no relief could be granted "under any set of facts which could prove consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Zynn v. O'Donnell, 688 F.2d 940, 941 (3d Cir. 1982).

  Because Excelcorp raised in its reply papers numerous (meritless) arguments for dismissal not raised in its original moving papers, the Court notes that these arguments are inappropriate for consideration on adjudication of this motion. See, e.g., Solid Waste Transfer and Recycling, Inc. v. County of Essex, No. 98-2990, 1999 U.S. Dist. LEXIS 17867, at *40 (D.N.J. Oct. 26, 1999) (declining to consider new arguments raised initially on reply); Schiffli Embroidery Workers Pension Fund v. Ryan, Beck & Co., 869 F. Supp. 278, 281 (D.N.J. 1994) (same, "for the obvious reason that the opponent has no opportunity to respond"). In addition, the Court will not consider the affidavit accompanying Defendant's reply papers, as, given the nature of the asserted bases for dismissal, it has no bearing on the Court's review of the ...

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