Hydro Tech, Inc. v. Ames Construction, Inc.
Filing
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ORDER DENYING 11 Motion to Dismiss. Signed by Judge Larry R. Hicks on 02/12/2013. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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HYDROTECH, INC.,
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Plaintiff,
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v.
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AMES CONSTRUCTION, INC.,
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Defendant.
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3:12-CV-00262-LRH-WGC
ORDER
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This is a contract dispute. Before the court is defendant Ames Construction, Inc.’s (“Ames”)
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Motion to Dismiss (#111). Plaintiff Hydrotech, Inc. (“Hydrotech”) has responded (#16), and Ames
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has replied (#17).
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I.
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Facts and Procedural History2
Ames hired Hydrotech as a subcontractor in construction work performed for the Nevada
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Department of Transportation. (Complaint #1 at ¶ 5.) Ames failed to cooperate with Hydrotech
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during phases of the construction project, and Ames refused to pay Hydrotech for work performed.
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(Id. at ¶¶ 6-10.) Hydrotech has sued Ames for breach of contract, unjust enrichment, and breach of
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the implied covenant of good faith and fair dealing. Ames now moves to dismiss the unjust
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Refers to the court’s docket entry number.
In reviewing a motion to dismiss, the court accepts facts alleged in the complaint as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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enrichment claim under Federal Rule of Civil Procedure 12(b)(6).
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II.
Legal Standard
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To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the
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Federal Rule of Civil Procedure 8(a)(2) notice pleading standard. See Mendiondo v. Centinela
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Hospital Medical Center, 521 F.3d 1097, 1103 (9th Cir. 2008). A complaint must contain “a short
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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
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8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations; however, a
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pleading that offers only “labels and conclusions” or “a formulaic recitation of the elements of a
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cause of action” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
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Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter,
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accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks
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omitted). A claim has facial plausibility when the pleaded factual content allows the court to draw
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the reasonable inference, based on the court’s judicial experience and common sense, that the
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defendant is liable for the misconduct alleged. See id. at 678-79. “The plausibility standard is not
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akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has
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acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s
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liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. at
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678 (internal quotation marks and citation omitted).
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In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as
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true. Id. (citation omitted). However, “bare assertions . . . amount[ing] to nothing more than a
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formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth.”
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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at
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680) (alteration in original) (internal quotation marks omitted). The court discounts these
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allegations because they do “nothing more than state a legal conclusion – even if that conclusion is
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cast in the form of a factual allegation.” Id. “In sum, for a complaint to survive a motion to dismiss,
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the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
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plausibly suggestive of a claim entitling the plaintiff to relief.” Id. (quoting Iqbal, 556 U.S. at 678).
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III.
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Discussion
Ames rightly argues that “[a]n action based on a theory of unjust enrichment is not available
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when there is an express, written contract, because no agreement can be implied when there is an
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express agreement.” LeasePartners Corp. v. Robert L. Brooks Trust Dated November 12, 1975,
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942 P.2d 182, 187 (Nev. 1997). Here, Hydrotech has alleged the existence of an express agreement.
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Therefore, Ames concludes, the unjust enrichment claim is barred by law.
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While the existence of a valid, express agreement does block a claim for unjust enrichment,
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Ames’ argument fails for two reasons. First, Federal Rule of Civil Procedure 8 allows for
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inconsistent or alternative claims. See, e.g., Molsbergen v.. United States, 757 F.2d 1016, 1018–19
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(9th Cir. 1985) (“[C]ourts have been reluctant to permit one pleading to be read as a judicial or
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evidentiary admission against an alternative or inconsistent pleading.”). Second, the LeasePartners
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rule assumes the “express, written contract” is enforceable. See 942 P.2d at 187; see also
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Restatement (Third) of Restitution & Unjust Enrichment § 32 (2011). If the written instrument is
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not an enforceable contract–and Ames has denied that it is (Ames’ Answer #9, ¶ 13)–a claim for
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unjust enrichment is still available.3 See Stock v. Meek, 221 P.2d 15, 21 (Cal. 1950) (Traynor, J.).
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Thus, dismissal is inappropriate at this stage of the proceedings.
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IT IS THEREFORE ORDERED that Ames’ Motion to Dismiss (#11) is DENIED.
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IT IS SO ORDERED.
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DATED this 12th of February, 2013.
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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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Of course, even at the motion-to-dismiss stage, the court does not accept as true legal
conclusions. Moss, 572 F.3d at 969. Therefore, while the court accepts as true the existence of a written
agreement, it does not accept as true the existence of a valid written agreement.
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