United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
THOMAS C. MUMMERT, III, Magistrate Judge.
This is a collective and class action filed by on-call employees of Provider Plus, Inc., who allege that they have not been adequately compensated for time spent assisting customers of Provider Plus when not "clocked-in.'" (Am. Compl. at 2, ECF No. 11.) In Count VI of their seven-count amended complaint, those Plaintiffs who live or work in Illinois (the "Illinois Plaintiffs") allege that Provider Plus has been unjustly enriched by their free labor. (Id. at 28.) In Count VII, those Plaintiffs who live or work in Missouri (the "Missouri Plaintiffs") allege that Provider Plus has been similarly unjustly enriched. (Id. at 29-30.) Provider Plus and Jeff Serafin, the owner of Provider Plus (hereinafter collectively referred to as "Defendants") argue that Counts VI and VII should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because the claims for unjust enrichment are (a) inconsistent with, and barred by, the claims for breach of contract and (b) not actionable. Plaintiffs disagree.
According to the allegations of the amended complaint, Provider Plus operates medical supply warehouses in Illinois and Missouri and makes deliveries of medical supplies to hospitals and patients' homes. (Am. Compl. ¶¶ 1-2, 25-26, 27.) Plaintiffs are on-call employees. (Id. ¶ 4.) They allege that Provider Plus has failed to pay them for one-half hour lunch breaks when they had to work through lunch, for time spent on calls that did not require they go to a Provider Plus location, and for time spent finishing a project after they had clocked out. (Id. ¶¶ 107-12, 116-17.) One of the seven counts in the first amended complaint is for breach of an implied contract and is brought by the Illinois Plaintiffs. (Id. ¶ 172-77.) Another count is for breach of an implied contract and is brought by the Missouri Plaintiffs. (Id. ¶ 178-83.)
Provider Plus and Jeff Serafin (hereinafter collectively referred to as Defendants) argue that Illinois and Missouri law bar claims for unjust enrichment when there are also claims for breach of contract. They further argue that, regardless, claims for unjust enrichment do not lie when the work at issue was originally contemplated by the parties.
When ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must take as true the alleged facts and determine whether they are sufficient to raise more than a speculative right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court does not, however, accept as true any allegation that is a legal conclusion. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must have "a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at 555 (quoting first Fed.R.Civ.P. 8(a)(2) and then Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Twombly, supra) (alteration in original); see also Gregory v. Dillard's Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc).
Defendants first argue that Plaintiffs cannot contemporaneously present claims for unjust enrichment and for breach of contract under either Missouri or Illinois law. Plaintiffs counter that their presentation is permitted under Federal Rule of Civil Procedure 8(d).
Rule 8(d)(2) permits a plaintiff to "set out 2 or more statements of a claim... alternatively or hypothetically, either in a single count... or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient." Fed.R.Civ.P. 8(d)(2). Rule 8(d)(3) permits a plaintiff to "state as many separate claims... as it has, regardless of consistency." Fed.R.Civ.P. 8(d)(3).
In the instant case, Plaintiffs have made two sets of alternative claims. In Count IV of their amended complaint, they allege that Defendants' actions in not paying them overtime for time spent on-call breached an implied contract that they be compensated for their services, in violation of Illinois law. (Am. Compl. ¶ 173.) In Count VI, they allege that Defendants have been conferred a benefit by Plaintiffs' free labor when on-call and have retained that benefit, also in violation of Illinois law. (Id. ¶¶ 185, 187.) They further allege that the work at issue is additional services that are different than their original job duties. (Id. ¶ 189.) Similarly, in Count V they allege that Defendants' actions in not paying them breached an implied contract, in violation of Missouri law. (Am. Compl. ¶ 179.) In Count VII, they allege that the benefits conferred on, and retained by Defendants, are for additional services. (Id. ¶¶ 193, 195, 197.) Counts IV and V are titled "Breach of Contract." (Id. at 26, 27.) Counts VI and VII are titled "Unjust Enrichment." (Id. at 29, 30.) There is but one prayer for relief in the amended complaint. (Id. at 30.) This prayer includes, without reference to any particular count, a paragraph requesting an award of unpaid wages, one requesting compensatory damages, and one requesting an order requiring Provider Plus to disgorge the amount by which Provider Plus has been "unjustly enriched by its unlawful conduct at the expense of Plaintiffs...." (Id.)
The elements of a cause of action for breach of contract are the same under Illinois and Missouri law. In Illinois, "[i]n order to state a cause of action for breach of contract, a plaintiff must plead: (1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) a breach of the subject contract by the defendant; and (4) that the defendant's breach resulted in damages." McCleary v. Wells Fargo Sec., LLC, 29 N.E.3d 1087, 1093 (Ill. Ct. App. 2015). In Missouri, to state a cause of action for breach of contract, a plaintiff must plead: "(1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff." Rental Co., LLC v. Carter Group, Inc., 399 S.W.3d 63, 67 (Mo.Ct.App. 2013) (quotations omitted).
The elements of a cause of action are also the same under either Illinois or Missouri law. In Illinois, "[t]o plead a cause of action for unjust enrichment, a plaintiff must allege that the defendant unjustly retained a benefit to the plaintiff's detriment and that retention violates the fundamental principles of justice, equity, and good conscience." McCleary, 29 N.E.3d at 1096. In Missouri, to plead a cause of action for unjust enrichment, a plaintiff must allege: "(1) a benefit conferred by a plaintiff on a defendant; (2) the defendant's appreciation of the fact of the benefit; and (3) the acceptance and retention of the benefit by the defendant under the circumstances in which retention without payment would be inequitable." Rental Co., 399 S.W.3d at 67.
Courts applying Illinois or Missouri law have found that parties may present claims for unjust enrichment and breach of contract in the same cause of action, although they may not recover for both claims. See Rental Co., 399 S.W.3d at 67 (Missouri law); Howard v. Turnbull, 258 S.W.3d 73, 76 (Mo.Ct.App. 2008) (Missouri law); Roche v. Liberty Mut. Managed Care, Inc., 2008 WL 4378432, *3 (S.D. Ill. Sept. 23, 2008) (Illinois law).
Defendants contend, however, that Plaintiffs may not do so, in part, because Plaintiffs' incorporation into their unjust enrichment counts of their allegations "that the parties' relationships were governed by contracts" dooms the unjust enrichment counts. (Defs. Mem. at 4, ECF No. 17.) District courts applying Illinois or Missouri law have concluded that Rule 8 does not save an unjust enrichment count when the underlying allegations include allegations that the parties' relationship was governed by an express contract. See e.g. Marks v. Compo Steel Prods., 2008 WL 5221172, *4 (N.D. Ill.Dec. 12, 2008) (finding that, under Illinois law, Rule 8(d) did not save quantum meruit claim that specifically incorporated allegations that parties' relationship was governed by express contract, a copy of which was attached to the amended complaint); Roche, 2008 WL 4378432 at *3 (S.D. Ill. Sept. 23, 2008) (holding that "mere fact that [plaintiff] allege[d] both breach of contract (based on an express contract) and unjust enrichment (based on an implied contract) dealing with the same matter [was] not grounds for dismissal, " but, under Illinois law, plaintiff could not include allegations of an express contract in counts for unjust enrichment); Sharrow Group v. Zausa Dev. Corp., 2004 WL 2806193, *3 (N.D. Ill.Dec. 6, 2004) (same); Dubinsky v. Mermart, LLC, 2009 WL 1011503 *5 (E.D. Mo. Apr. 15, 2009) (plaintiffs could not bring alternative ...