United States District Court, W.D. Missouri, Southwestern Division
ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT.
the Court is a motion filed by Plaintiff/Counterclaim
Defendant Hardwood Lumber, Inc. (“Hardwood”)
seeking various relief. In particular, Hardwood seeks either
judgment on the pleadings or dismissal of Count II of
Defendant/Counterclaim Plaintiff Brewco Incorporated
(“Brewco”)'s counterclaims. Hardwood also
seeks to strike, or in the alternative, an order to make more
definite certain affirmative defenses pleaded by Brewco. The
motion is fully briefed. (Docs. 29, 35, 37.) After careful
consideration, the motion is DENIED.
lawsuit stems from the sale of a saw mill system from Brewco
to Hardwood. Hardwood's Petition raises the following
causes of action against Brewco: breach of implied warranty
of merchantability, breach of implied warranty of fitness for
a particular purpose, negligent misrepresentation, and
intentional misrepresentation. In response to Hardwood's
Petition, Brewco brings several counterclaims against
Hardwood. Relevant for purposes of this motion, Brewco raises
a claim for unjust enrichment in Count II of its
Motion for Judgment on the Pleadings
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). “Judgment on the pleadings is
appropriate only when there is no dispute as to any material
facts and the moving party is entitled to judgment as a
matter of law, the same standard used to address a motion to
dismiss for failure to state a claim under Rule
12(b)(6)[.]” Ashley County v. Pfizer, Inc.,
552 F.3d 659, 665 (8th Cir. 2009) (internal quotations and
argues that it is entitled to judgment on the pleadings on
Brewco's Count II for unjust enrichment because Brewco
has admitted and pleaded to an express contract between the
parties. Under Missouri law,  “[i]f the plaintiff has
entered into an express contract for the very subject matter
for which he seeks recovery, unjust enrichment does not
apply, for the plaintiff's rights are limited to the
express terms of the contract.” NTD I, LLC v.
Alliant Asset Mgmt. Co., LLC, 362 F.Supp.3d 664, 681-82
(E.D. Mo. 2019) (quoting Howard v. Turnbull, 316
S.W.3d 431, 436 (Mo.Ct.App. 2010)) (other citation omitted).
However, a party may plead claims in the alternative as well
as inconsistent claims. See Fed. R. Civ. P.
8(d)(2)-(3) (“[a] party may set out 2 or more
statements of a claim . . . alternatively” and
“[a] party may state as many separate claims . . .,
regardless of consistency.”). “The fact that
[Brewco] cannot simultaneously recover damages for both
breach of contract and unjust enrichment does not preclude it
from pleading both theories in its Petition.”
S&K Leimkuehler, Inc. v. Barcel USA, LLC, 2018
U.S. Dist. LEXIS 194625 *12 Case No. 4:18-cv-00686-NKL (Nov.
15, 2018). Hardwood does not cite to any governing authority
that supports its entitlement to judgment on the pleadings at
this juncture. Therefore, Hardwood's motion for judgment
on the pleadings as to Brewco's Count II will be denied.
Motion to Dismiss for Failure to State a Claim
pleading to state a claim for relief, it must contain a short
and plain statement of the claim showing that the pleader is
entitled to relief. Horras v. Am. Capital Strategies,
Ltd., 729 F.3d 798, 801 (8th Cir. 2013) (citing
Fed.R.Civ.P. 8(a)(2)). The complaint must contain facts
sufficient to state a claim that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
alternative to Hardwood's motion for judgment on the
pleadings, Hardwood argues that Brewco's Count II for
Unjust Enrichment fails to state a claim upon which relief
can be granted. “A claim for unjust enrichment has
three elements: [(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 in circumstances that would render
that retention inequitable.” Topchian v. JPMorgan
Chase Bank, N.A., 760 F.3d 843, 854 (8th Cir. 2014)
(quoting Hertz Corp. v. RAKS Hospitality, Inc., 196
S.W.3d 536, 543 (Mo.Ct.App. 2006)).
maintains that Brewco's claim fails as to each element.
Regarding the first two elements, Hardwood argues that where
the parties bargained for the sale of Brewco's scrag mill
system, installation, and training, Brewco cannot assert that
Hardwood retained a benefit without paying reasonable value
or that Hardwood was enriched at the expense of Brewco.
See Howard, 316 S.W.3d at 438 (no recover for unjust
enrichment where any benefit was conferred
“voluntarily, deliberately, and without
complaint” as bargained for) (“A venture
voluntarily entered into, with known risks and with the
expectation of a profit, cannot be compensated for via a
claim for unjust enrichment.”). Regarding the third
element of an unjust enrichment claim, Hardwood argues that
Brewco makes no assertion that the scrag mill system was sold
to Hardwood under a mistaken duty, through dutiful
intervention, or constraint. See Alliant Asset Mgmt.
Co., 362 F.Supp.3d at 682 (“Unjust retention of
benefits only occurs when the benefits were ‘conferred
(a) in misreliance on a right or duty; or (b) through dutiful
intervention in another's affairs; or (c) under
constraint.'”) (quoting Howard, 316 S.W.3d
at 436). The Court agrees with Brewco that these arguments go
to the merits of the claim and do not challenge the
sufficiency of Brewco's allegations.
Hardwood also argues that Brewco's Count II fails because
an express contract exists. This argument is rejected for the
same reasons as expressed above in Section I. Therefore,
Hardwood's motion to dismiss Brewco's Count II for
failure to state a claim will be denied.
Motion to Strike, or in the alternative, Motion to Make More