United States District Court, E.D. Missouri, Eastern Division
PIETOSO, INC. d/b/a CAFE NAPOLI, Plaintiff,
REPUBLIC SERVICES, INC. and ALLIED WASTE SERVICES, LLC d/b/a ALLIED WASTE SERVICES OF BRIDGETON, Defendants.
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion to
Dismiss (ECF No. 23). This matter is fully briefed and ready
Pietoso, Inc. d/b/a Cafe Napoli ("Pietoso") brings
this action as a putative nationwide class action for breach
of contract and declaratory judgment. (First Amended
Complaint ("FAC"), ECF No. 19). On or around April
26, 2011, Defendants entered into a contract ("Service
Agreement") with Pietoso. (FAC, ¶¶1, 7, 21
(citing the Service Agreement at Exhibit 1)). The service
charges were increased by Republic on a regular basis. (FAC,
¶46). The increases in Service Charges were presented on
the invoice as authorized service charge increases. (FAC,
¶47). Pietoso argues that Defendants improperly
increased the service charges without contractual
authorization. (FAC, ¶¶39-86).
survive a motion to dismiss, a complaint "must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic
Corp., v. Twombly, 550 U.S 544, 570 (2007). A
"formulaic recitation of the elements of a cause of
action" will not suffice. Twombly, 550 U.S. at
555. "The plausibility standard is not akin to a
'probability requirement,' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556).
Breach of Contract
elements of a breach of contract claim under Missouri law
are: '"(1) a contract between the plaintiff and the
defendant; (2) rights of the plaintiff and obligations of the
defendant under the contract; (3) breach of the contract by
the defendant; and (4) damages suffered by the
plaintiff" Teets v. American Family Mut. Ins.
Co., 272 S.W.3d 455, 461 (Mo.Ct.App. 2008) (quoting
Howe v. ALD Servs., Inc., 941 S.W.2d 645, 650
(Mo.Ct.App. 1997)). To state a claim for breach of contract,
however, a plaintiff need only plead facts sufficient to
demonstrate the existence of a valid contract and its breach.
Brion v. Vigilant Ins. Co., 651 S.W.2d 183, 185
(Mo.Ct.App. 1983); Amburgy v. Express Scripts, Inc.,
671 F.Supp.2d 1046, 1055-56 (E.D. Mo. 2009)
Service Agreement establishes that Allied could increase
Pietoso's rate based upon increased costs incurred by
Company [Allied] may, from time to time by notice to
Customer, increase the rates provided in this Agreement to
adjust for any increase in: (a) disposal costs; (b)
transportation costs due to a change in location of Customer
or the disposal facility used by Company; (c) the Consumer
Price Index for all Urban Consumers; (d) the average weight
per cubic yard of Customer's Waste Materials above the
number of pounds per cubic yard upon which the rates provided
in this Agreement are based as indicated on the cover page of
this Agreement; or (e) Company's costs due to changes in
Agreement, Rate Adjustments.
Service Agreement also expressly states that Allied could
increase Pietoso's fees for any other reason, with
Pietoso's consent: "for reasons other than those set
forth above with Customer's consent, which may be
evidenced verbally, in writing or by the parties actions and
practices." Service Agreement, Rate Adjustments.
breach of contract argument hinges on its claim that
Defendants increased their service fee without Pietoso's
knowledge or consent. See, e.g, Amended Complaint,
¶57 ("Plaintiff has never given its consent to any
Optional Service Charge Increase, nor has Plaintiff ever
given its consent to an Optional Service Charge.");
Amended Complaint, ¶58 ("Plaintiff believed that
the increases in the Service Charges were always Authorized
Service Charge Increases when it paid its monthly
invoices."); Amended Complaint, ¶59
("Plaintiff was reasonable in its belief that the
increases in the Service Charges were Authorized Service
Charge Increases because the Service Agreement states that
Defendants needed Plaintiffs ...