United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
case involves a dispute concerning construction at
Barnes-Jewish Hospital and St. Louis Children's Hospital.
Plaintiff was a subcontractor on the project and is also an
assignee of contractor IWR North America, which was hired to
design and construct the exterior enclosure systems for the
project. IWR in turn hired defendant to supply architectural
and engineering services for the design of the exterior
enclosure systems. Plaintiff alleges that defendant failed to
perform its contractual obligations on the project in
numerous respects, resulting in damages to plaintiff as
assignee of IWR and in its own right.
moves for a more definite statement on plaintiff's breach
of contract claim pled in Count I of the complaint, claiming
it cannot possibly determine how it breached one or more of
the construction contracts. This motion will be denied, as a
complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. 8(a). “Because of
liberal notice pleading and the availability of extensive
discovery, motions for a more definite statement are
universally disfavored.” McCoy v. St. Louis Public
Schools, 2011 WL 4857931, at *2 (E.D. Mo. Oct. 13,
2011). Having reviewed Count I of the complaint under these
standards, the Court cannot conclude that the pleading is so
“vague or ambiguous that the party cannot reasonably
prepare a response.” Fed.R.Civ.P. 12(e). Accordingly,
the motion for more definite statement is denied.
also moves to dismiss Counts II through V of the complaint
under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The
purpose of a Rule 12(b)(6) motion to dismiss for failure to
state a claim is to test the legal sufficiency of a complaint
so as to eliminate those actions “which are fatally
flawed in their legal premises and deigned to fail, thereby
sparing the litigants the burden of unnecessary pretrial and
trial activity.” Young v. City of St. Charles,
244 F.3d 623, 627 (8th Cir. 2001). To survive a Rule 12(b)(6)
motion to dismiss, a complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
plaintiff need not provide specific facts in support of his
allegations, Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam), but “must include sufficient
factual information to provide the ‘grounds' on
which the claim rests, and to raise a right to relief above a
speculative level.” Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing
Twombly, 550 U.S. at 555 & n.3). This obligation
requires a plaintiff to plead “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555. A complaint “must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal
theory.” Id. at 562 (internal citation
omitted). This standard “simply calls for enough facts
to raise reasonable expectation that discovery will reveal
evidence of [the claim or element].” Id. at
556. The plausibility of the plaintiff's claim is
reviewed “as a whole, not plausibility of each
individual allegation.” Zoltek Corp. v. Structural
Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010)
(internal quotation marks and citation omitted).
motion to dismiss, the Court accepts as true all of the
factual allegations contained in the complaint, even if it
appears that “actual proof of those facts is
improbable” Twombly, 550 U.S. at 556, and
reviews the complaint to determine whether its allegations
show that the pleader is entitled to relief. Id. at
555-56. The principle that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Iqbal, 556 U.S. at 678-79.
Although legal conclusions can provide the framework for a
complaint, they must be supported by factual allegations.
Id. at 679.
reviewed plaintiff's state law claims under the relevant
standards, the motion to dismiss will be denied. Defendant
argues that plaintiff cannot contemporaneously bring claims
for unjust enrichment (Count II) and breach of contract
(Count I) under Missouri law. This argument is rejected, as
plaintiff is entitled to plead its claims for breach of
contract and unjust enrichment in the alternative even if
Missouri law ultimately precludes recovery under both
theories. See Penrose v. Buffalo Trace Distillery,
Inc., 2018 WL 705054, at *5 (E.D. Mo. Feb. 5, 2018). The
Court also concludes that Count II adequately pleads the
elements of an unjust enrichment claim, so defendant's
motion to dismiss Count II of the complaint is denied.
Count III of the complaint, the Court concludes that
plaintiff has adequately pled that it is an intended third
party beneficiary of defendant's contract with IWR such
that it is not subject to dismissal at this time. Whether
plaintiff will ultimately prevail on its claim is not before
me at this time. As for the negligence claims (Counts IV and
V), the Court concludes that they are not subject to
dismissal at this time under the economic loss doctrine.
Missouri's economic loss doctrine precludes tort
liability in those cases in which the plaintiff seeks
recovery solely for economic losses. Dannix Painting, LLC
v. Sherwin-Williams Co., 732 F.3d 902, 905-06 (8th Cir.
2013); Rockport Pharmacy, Inc.v. Digital Simplistics,
Inc., 53 F.3d 195, 197 (8th Cir. 1995). The economic
loss doctrine, however, does not apply and preclude tort
liability in an action based on the negligent rendition of
services by a professional. Id. at 199 (citing
Business Men's Assurance Co. of America v.
Graham, 891 S.W.2d 438, 454 (Mo.Ct.App. 1994)). This
exception is applied to negligence claims involving
defendants who have been held to a professional, rather than
an ordinary, standard of care and who have provided
professional services to the plaintiff. Rockport, 53
F.3d at 453. A second exception applies where the negligent
act or omission which breaches the contract may serve as a
basis for an action in tort. Union Elec. Co. v. Chicago
Bridge & Iron Co., 2015 WL 1262941, at *6 (E.D. Mo.
Mar. 19, 2015). “If the duty arises solely from the
contract, the action is contractual. The action may be in
tort, however, if the party sues for breach of a duty
recognized by the law as arising from the relationship or
status the parties have created by their agreement.”
Id. (quoting Liberty Mut. Fire Ins. Co. v.
Centimark Corp., 2008 WL 5423440, at *2 (E.D. Mo. Dec.
plaintiff alleges that defendant provided professional
services and asserts these claims as an assignee of
defendant's client IWR (Count IV) and as a third party
beneficiary entitled to enforce contractual benefits (Count
V). Given plaintiff's allegations with respect to the
duty of care owed to plaintiff and the nature of
defendant's alleged breaches of the duty of care, it
would be premature at this stage of the proceedings to
conclude that plaintiff's negligence claims are barred by
the economic loss doctrine. See JR14, LLC v. Jetcorp
Technical Services, Inc., 2017 WL 3720075, at *1
(E.D.Mo., 2017); Captiva Lake Inv., LLC v.
Ameristructure, Inc., 436 S.W.3d 619, 627 (Mo.Ct.App.
2014). Whether plaintiff is ultimately entitled to relief on
one or more of its negligence claims is not before me at this
time. Defendant's motion to dismiss Counts IV and V is
denied. Defendant's request to dismiss plaintiff's
prayer for prejudgment interest is denied without prejudice
to being re-raised at the conclusion of this case, if
defendant moves to strike plaintiff's claim for
attorneys' fees in the complaint. As plaintiff concedes
that it is not seeking attorneys' fees as damages in this
case, (Doc. # 13 at Para. 44), and it does not oppose the
motion to strike, the motion to strike the request for
attorneys' fees is granted, and the allegations to
attorneys' fees in paragraphs 42 and 50 are stricken from
IT IS HEREBY ORDERED that defendant's
motion for more definite statement  is denied.
IS FURTHER ORDERED that defendant's motion to
dismiss  is denied.
IS FURTHER ORDERED that defendant's motion to
strike  is granted, and plaintiffs allegations with
respect to attorneys' fees contained in ...