United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
Penske moves for summary judgment on Level One's
remaining claims of breach of contract (Count I) and unjust
enrichment (Count VI). [No. 185]. I previously granted
summary judgment on Level One's lost volume (subset of
Count I), fraud (Count II), Negligent Misrepresentation
(Count III), and breach of duty of good faith and fair
dealing (Count IV) claims. Before addressing Penske's
current arguments, I will revisit my prior order and dismiss
Level One's unjust enrichment claim (Count VI), because
it covers the same subject matter as the parties' express
services company Level One claims that truck leasing company
Penske copied its transaction processing software Epay. Based
on that claim, Level One filed this suit against Penske in
June 2014. As stated in Level One's complaint, the two
companies signed a Services Agreement governing Penske's
use of Epay. The Services Agreement also contained a Software
Source Code and Data Escrow Agreement, by which Penske agreed
to the following:
[Penske] will not use, copy, or transfer any gained knowledge
from the Epay application data and Source Code for the
purpose of developing identical or similar version of Epay
for Penske's proprietary use as long as Level One is both
operational and is processing transactions under its
continuing Services Agreement with Penske.
(ECF No. 1-1 at 60).
second amended complaint, [No. 99]. Level One alleges that
Penske breached the Services Agreement by using Epay source
code and other knowledge gained from using Epay to develop
the Penske Online Payment System (POPS). Level One also
alleges that Penske breached the Services Agreement by
failing to process an agreed amount of transactions through
Epay. Based on these allegations, Penske sought recovery
under theories of breach of contract (Count I), fraud (Count
II), negligent misrepresentation (Count III), breach of the
duty of good faith and fair dealing (Count IV),
misappropriation of trade secrets (Count V), and unjust
enrichment (Count VI).
January 25, 2018, I granted Penske's partial motion for
summary judgment, dismissing Count II, III, IV, and portions
of Level One's breach of contract claim (Count I) that
alleged lost volume theories of recovery. [No. 197]. I found
that any purported promises concerning the volume of
transactions that Penske would process through Epay were not
a part of the Services Agreement or any other valid contract
entered into between the parties. Penske now moves for
summary judgment on Level One's remaining claims: breach
of contract regarding use of Epay source code (Count I) and
unjust enrichment (Count VI).
only grant summary judgment if the evidence, viewed in the
light most favorable to the nonmoving party, demonstrates (1)
that there is no genuine issue as to any material fact and
(2) that the moving party is entitled to judgment as a matter
of law. Lynn v. Deaconess Med. Ctr., 160 F.3d 484,
486 (8th Cir. 1998) (citing Fed.R.Civ.P. 56(c)). In this
evaluation, I view all facts and factual inferences in the
light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). The party seeking summary judgment bears the
burden of establishing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(a). Once the moving party has met
this burden, the nonmoving party may not rest on the
allegations in its pleadings, but by affidavit or other
evidence, must set forth specific facts showing that a
genuine issue of material fact exists. Celotext Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
prior order, (ECF No. 197), I denied Penske's summary
judgment motion with respect to Level One's unjust
enrichment claim. I am persuaded, however, to revisit my
prior decision based on my discussion with parties during the
status conferences held on March 9, 2018, and April 6, 2018.
I may revisit and “may properly depart from an earlier
holding . . . in an interlocutory ruling.” Lovett
v. Gen. Motors Corp., 975 F.2d 518, 522 (8th Cir. 1992).
My prior decision denying summary judgment on Level One's
unjust enrichment claim is an interlocutory ruling. See
Wright v. S. Arkansas Reg'l Health Ctr., Inc., 800
F.2d 199, 202 (8th Cir. 1986) (“[U]sually, a denial of
summary judgment is not treated as final.”). I now
revisit that decision to determine if Level One's unjust
enrichment claim can survive summary judgment.
[a] plaintiff has entered into an express contract for the
very subject matter for which he seeks recovery, unjust
enrichment does not apply. . . .” R & R Land
Dev., L.L.C. v. Am. Freightways, Inc., 389 S.W.3d 234,
243 (Mo.Ct.App. 2012); See also Affordable Communities of
Missouri v. Fed. Nat. Mortg. Ass'n, 714 F.3d 1069,
1077 (8th Cir. 2013) (“Unjust enrichment is an
equitable remedy based on the concept of a quasi-contract,
and a plaintiff may not recover under both an express
contract and unjust enrichment.”). A plaintiff can
plead inconsistent and alternative theories of
relief, including for “both breach of an express
contract and unjust enrichment.” Franke v.
Greene, No. 4:11CV1860 JCH, 2012 WL 3156577, at *5 (E.D.
Mo. Aug. 2, 2012). At summary judgment, however, “the
issue is whether the unjust enrichment claim covers the same
subject matter as the [contract].” See,
e.g., Co Mentis, Inc. v. Purdue Research
Found., 765 F.Supp.2d 1092, 1101-02 (N.D. Ind. 2011). If
an express contract covers the same subject matter, the
unjust enrichment claim cannot survive summary judgment.
Affordable Communities of Missouri, 714 F.3d at
One argues that this limitation on recovering for unjust
enrichment “is narrowly construed” and only
applies “when the damages sought . . . are expressly
covered and agreed to in the contract.” (ECF No. 143 at
34). None of Level One's cited cases state such a
holding. In two of the cited cases, the Eighth Circuit held
that the district court properly dismissed an unjust
enrichment count, without purporting to narrow the
above-mentioned limitation. See 32nd St. Surgery Ctr.,
LLC v. Right Choice Managed Care, 820 F.3d 950, 955-56
(8th Cir. 2016); Affordable Cmty. of MO v. Fed. Nat.
Mortg. Ass'n, 714 F.3d 1069, 1077 (8th Cir. 2013).
Level One cites to six other cases where state and federal
courts held that the plaintiff could only recover for a
breach of contract claim, not unjust enrichment.
See, e.g., Lowe v. Hill, 430
S.W.3d 346, 348 (Mo.Ct.App. 2014). But Level One does not
identify a single, specific ruling in those cases that
narrows the above-mentioned limitation to circumstances where
the damages are expressly covered and agreed to. The rule