Assure Re Intermediaries Inc v Western Surplus Lines Agency Inc, No. 1:2020cv00189 - Document 34 (N.D. Tex. 2021)

Court Description: MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART WESTERN SURPLUS'S AMENDED MOTION TO DISMISS. For the reasons stated herein, the Court grants in part and denies in part the defendant's Amended Motion to Dismiss 16 . Th e Court dismisses Assure Re's claims for unjust enrichment and declaratory judgment with prejudice. All other claims survive dismissal. Finally, the Court denies Western Surplus's initial motion to dismiss 6 as moot. (Ordered by Judge James Wesley Hendrix on 6/11/2021) (jak)

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Assure Re Intermediaries Inc v Western Surplus Lines Agency Inc Doc. 34 TINITED STATES DISTRICT COURT NORTHERN DISTzuCT OF TEXAS ABILENE DT\'ISION ASSURE RE INTERMEDIARIES, INC. (f/k/a ASSURE MANAGEMENT GROUP,INC.), Plaintiff, No. 1:20-CV-189-H WESTERN SURPLUS LINES AGENCY, INC., Defendant. MEMORANDUM OPIMON AND ORDER GRANTING IN PART AND DIS EDM LUS' WE G Before the Court is westem Surplus Lines Agency, Inc.',s Motion to Dismiss Assure Re Intermediaries, Inc.'s claims against it under Federal Rule of Civil Procedule 12OX6). Dkt. No. 16. Having considered the motion, the parties' briefing, and the applicable law, the Court finds that Westem Surplus's motion should be granted in part and denied in part. Because the Court declines to consider facfiral allegations not contained in the First Amended Complaint as judicial admissions, the Court finds that Assure Re has adequately stated claims for breach of contract, anticipatory repudiation, money had and received, and quantum meruit. Accordingly, the defendant's motion to dismiss with respect to those claims is denied. However, the Court grants the motion as to the declalatory judgement and unjust enrichment claims because those claims are redundant in light of the other claims in this suit. Finally, the Court denies the defendant's original motion to dismiss (Dkt- No. 6) as moot. Dockets.Justia.com 1. Factual Backgroundl A. Assure Re's Business Relationship with Western Surplus PlaintiffAssure Re lntermediaries, Inc. is a broker of insurance and reinsulance producs. Dkt. No. 8 !f 2. In this role, Assure Re assists insurers in finding insurance agencies (knorvn as managing general agencies (IvIGAs)) to malket, underwrite, adjudicate claims, and manage insurance products on the insurer's behalf. Id. Westem Surplus is an MGA with whom Assure Re has worked. 1d fl 3. B. The 2011 OG Program Agreement Beginning in 2011, Westem Surplus sought to offer an insurance ploduct, known as the oG Program, that was specifically directed to businesses using vehicles in the oil and gas industry. Id. fln 5-6. Westem Surplus approached BMS Intermediaries, Inc. to locate an insurer for the OG Program and to negotiate the terms of the agreement that would govem the relationship between Westem Surpius and the insurer. 1d. fl 7. Plaintiff alleges that Western Surplus and BMS entered into a contract for the OG Program, which is referred to as the 2011 OG Program Agreement. Id.nn7-9. Under this contract, the parties agreed that if BMS located an insurer for the OG Program, Westem Surplus would pay BMS 0.5% of all premiums it received under the OG Program for as long as such insurance was offered or the premiums were collected, payable out of its commission MGA. Id. fln7-9. While BMS was working to locate an insurer for the oG as Program, Assure Re acquired BMS's business accounts, which inctuded the Westem Surplus account and righs to payment under the 2011 OG Program Agreement. Id. 1l13. the allegations are taken from Assure Re's Filst Amended Complaint (Dkt. No. 8), w_hich N A', Fatgo Bank, v. Welh Court musiaccept as true when resolving the motion to dismiss. Villaneal I These 8t4F.3d763,766 (5th Cn. 2016). z Relying on the terms of the 2011 OG Program Agreement, Assure Re brokered an agreement between Westem Surplus and Hudson Insurance Company. Id. lfil5-17. On September 1,2011, Westem Surplus and Hudson entered into an agreement-the Program Administrator Agreement for the Oil and Gas Program (OG PAAfwhereby Westem MGA and Hudson would provide the requisite insurance under the Surplus would act as the OG Program. Id.nrc. Once Westem Surplus and Hudson entered into the OG PAA, Assure Re's work under the 2011 OG Program Agreement was complete. Id. n 17 . Assure Re claims that the OG Program has generated hundreds of millions of dollars in premiums, resulting in Westem Surplus eaming millions of dollars in commissions. 1d paid 0.5% of irc fl 19. Per the terms of the 2011 OG Program Agreement, Westem Surplus commissions to Assure Re between 2011 and June 2019' ld.I,frl22,28. In total, Westem Surplus made more than 20 payments of between $30,000 and $50,000 to Assure Re under this agreement. Id. C. fl117 , 29. The 2013 Auto Program Agreement In 2013, the parties entered into a similar contract for Westem Surplus's auto business, which is referred to as the 2013 Auto Program Agreement. Id. terms of the 2013 Auto Program Agleement largely mirrored the 2011 ffi 32-54 The oG Progtam Agleement. Id. n 34. As it had done with the oG Program, Assure Re brokered a deal with Hudson on Westem Surplus's behalf for the Auto Program. Id. flfl 38-40' In November 2014, Westem Surplus and Hudson entered into a Program Administrator Agreement fol the Auto Progtam (Auto PAA), whereby Westem Surplus agreed to act as the MGA to the Auto Program, and Hudson agreed to provide the requisite insurance. Id. n 40. once westem surplus and Hudson entered into the Auto PAA, Assure 3 Re had completed all of its obligations owed to Western Surplus under the 2013 Auto Program Agreement. Id. I 42. As soon as Western Surplus began collecting premiums under the Auto Program, it paid Assure Re 0.5% of those premiums pursuant to the 2013 Auto Program Agreement. Id. n 47 . In total, Westem Surplus made more than 15 payments of approximately $30,000 to Assure Re under this agreement. Id. n 51. D. Western Su4rlus's Alleged Breach of Contract According to Assure Re, n July 2019, Westem Surplus unilaterally ceased making any payments to Assure Re as owed under the 201I OG Program Ageement and the 2013 Auto Program Agreement, despite continuing to collect premiums related to both progfams. Id. n 55 . Plaint|ff asserts that Westem Surplus has continued to receive commissions and payouts from the OG PAA and Auto PAA; yet, it has failed to pay Assure Re monies owed pursuant to the 2. 20ll and 2073 agleements since July 2019. Id.n30. Procedural HistorY Based on the above facnral allegations, Assure Re filed its Original Complaint on September 9, 2020 asserting various claims arising out of the tlvo agreements. Dkt. No. 1. Westem Surplus moved to dismiss plaintiffs Original Complaint for failure to state a claim. D}t. Nos. 6-7. In response, Assure Re filed its First Amended Complaint @AC) assemng claims against the defendant for breach of contract, anticipatory repudiation, quantum meruit, unjust enrichment, money had money received, and declaratory judgment' Dkt' No. 8. Westem Surplus filed an amended motion to dismiss requesting that the Court dismiss Assure Re's FAC for failure to state a claim and asking the Court to exercise its discretion to dismiss the declaratory judgment claim as duplicative. Dkt. Nos. 16-17. n Westem Surplus's amended motion to dismiss largely relies on alleged inconsistencies between the FAC (Dkt. No. 8) and the Original Complaint @kt. No. 1) or between the FAC and Assure Re's statements SeeDkt. No. 16 at h related lawsuits involving different parties. 7-8. Defendant complains that Assure Re made certain admissions of fact in its Originai Complaint and in other lawsuits that its FAC omits or contadicts, and asks the Court to consider those admissions in resolving this it motion. Westem Surplus also argues that plaintiffs equitable claims should fail because plaintiff seek improper damages. Id. at7. ln response, Assure Re attempts to dissuade the Court from considering statements from the superseded complaint or other lawsuits in resolving the motion to dismiss. Dirt. No. 20 at 12-16. Additionally, Assure Re argues that its declaratory-judgment request is not duplicative because it seek a declaration setting forth the defendant's future payment obligations-which plaintiff claims will not be resolved by its other claims. Id. at29-30. The amended motion to dismiss is now fully briefed and ripe for disposition. 3. Legal Standards A. Rule 12(bX6) Legal Standard "To survive a motion to dismiss, a complaint must contain sufficient factual matter ra which, when taken as true, states claim to relief that is plausible on its face."' Innova Hosp. San Antonio, Ltd. P\hip v. Blue Cross & Blue Shield of Ga., Inc.,892F.3d719,726 (sth Cn. 20i8) (q,totjrtg Bell Atl. Corp. r Twombly, 550 U.S. 544, 570 (2007)). In resolving a motion to dismiss, the Court must "accept allwell-pleaded facts as true and view those facts in the light most favorable to the plaintiff. " Richardson v. Aion Logistics, L.L.C.,TS0F.3d 304,306 (5th Cir. 2015) (quotiag.Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th Ctr. 2010)) (intemal quotations omitted). But the Court does not "accept as true conclusory 5 allegations, unwarranted factual inferences, or legal conclusions. F.3d 540, 5M (5th Cir. 2010) (qvoing Plotkin tt. IP Axess Inc., 407 " Gentilello v. Rege, 627 F .3d,690,696 (5th Cir. 2005)). A motion to dismiss pursuant to Rule 12(b)(6) "is viewed with disfavor and is rarely granted." Tumer B. v. Pleasant,663 F.3d 770,775 (5th Cir. 2011) (intemal citation omitted). Scope of Pleadings to Be Considered In determining whether to grant a motion to dismiss for failure to state a claim, a district court is generally limited to considering the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which judicial notice may be taken under Federal Rule ofEvidence 207. Walker v. Beaumont Indep. Sch. Dist.,938F.3d724,735(5thCn.2019). Here,WestemSurplusaskstheCourttotake judicial notice of proceedings currently pending in other courts and consider plaiatif s statements in those cases as binding judicial admissions in this case. Dkt. No. 16 at 71, 14, 17. Additionally, the defendant asks the Court to consider alleged inconsistencies between the FAC and the Original Complaint in determining whether to dismiss the FAC. Accordingly, the Court must fust determine whether it may consider these other pleadings and proceedings at this stage. i. The Court takes judicial notice of the related lawsuits, but it declines to consider any statements from those proceeilings as binding jutlicial ailmissions in this case. Westem Surplus asks the Court to take judicial notice of the following pleadings in other lawsuits as matte$ of public record and to consider Assure Re's statements therein as judicial admissions in this 1. case: Amended Complaint filed June 7, 2020 , tn Assure Re Intermediaies, Inc. (F/K/A Assure Managemeflt Group, Inc.) r Pyrtle, et al., Catse No. 19-CVS-2170, General 6 Court of Justice, Superior Court Division, Alamance County, North Carolina (Dkt. No. 17, Ex. A); It 2. Defendant Hudson Specialty Insurance Company's Answer and Counterclaim for Interpleader, in Assure Re Interwediaieq Inc. (F/K/A Assure Management Group, Inc.) t. Pynle, et al., Cause No. 19-CVS-2170, General Court of Justice, Superior Court Division, Alamance County, North Carolina (Dkt. No. 17 , Ex. B); 3. Original Petition, Jury Demand, and Request for Disclosure, filed September 4, 2020, tn Assure Re Intetmediaies, Inc. (F/K/A Assure Management Group, Inc.) tt. Platinum Managing General Agency, Inc. and Streamline fnsurance Services, Inc., tn the 425th Judicial District Court, Williamson County, Texas @kt. No. 17, Ex. C). is entirely proper for the Court to take judicial notice of matters of public record when Deeryater Hoizon,934F .3d,434, decidhg a motion to dismiss. In re (citng ITT Rayonier Inc. u. United States, 651F .2d 343, 345 n.2 40 (sillcir. 2019) (5th Cir. 1981). Thus, the Court will do so here. The Court's notice, however, is iimited to the existence of the documents, "not to prove the truth of the documents' contents 1018 n.1 (5th . " Lovelace v. Sofiware Spedrum Inc.,78 F.3d 1015, Cir. 1996). "Such weighing ofevidence outside of the pleadings is beyond the usuai purposes ofjudicial notice at the motion to dismiss stagefi and is more appropriately [sic] reserved for summary judgment or LY,202lWL trial." Ambler v. Williamson Cry., No. 1-20-CV-1068- 769667, at *5 (W.D. Tex. Feb. 25,2021). Although the Court takes judicial notice ofthe existence ofthese other pleadings, it declines to consider Assure Re's statements in those pleadings as binding judicial admissions in this case. "A judicial admission is a formal concession in the pleadings or stipulations by a party or counsel that is binding on the parly making them. " Martinez v. Bally\ La., Inc.,244E .3d 47 4, 47 6 (srh Cir. 2001). Tobe a judicial admission, the statement "mustbe made intentionally as a waiver, releasing the opponent Iiom proof of fact." United 7 States v. Chavez-Hemandez, 677 F .3d 494,501 (5th Cn. 2012) (quoting Martinez, 244F .3d at 476). The Fifth Circuit has held that 'Judicial admissions are not conclusive and binding in a separate case from the one in which the admissions were made." Uniyersal Am. Barge Corp. v.J-Chem.,946F.2d1131,1142(5thCir. 1991). Thus,here,theCourtfindsthatAssure Re's statements in other lawsuits are not binding judicial admissions in this case, and, instead, that those statements are more appropriately considered as evidence at a later stage. ii. Assure Re is not bound by its allegations in the Origiaal Complaint. "An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleadtng." King v. Dogan, 3l F .3d 344, 346 (sil:,Cir. 1994). Once a proper amended complaint is filed, the factual assertions from the superseded pleading lose their binding force as conclusive judicial admissions, but they may still be used as evidentiary admissions. Iilhite v. ARCO / Polymer, Inc.,720F.2d 1391,1396 n.5 (5th Cir. 1983); 6 Charles A. Wright, et al., Federal Practice and Procedure $ 1476 (3d ed. 2021) (noring that "allegations in a pleading that has been withdrawn may be allowed into evidence as an admission of the party"). Here, Westem Surplus flled its initial motion to dismiss under Rule 12(b)(6) on October 5,2020. Dkt. No. 6. Assure Re timely flled its FAC on October 26, 2020, exactly 2l dayslater. SeeDkt. No.8. The FAC did not refer to, adopt, or incorporate by reference the Original Complaint. Thus, because Assure Re's complaint was timely amended as a matter of course under Federal Rule of Civil Procedure 15(a), the Original Complaint is no longer oflegal effect, and the statements therein are not considered binding judicial 8 admissions. SeeDevorev.Lyons,No.3:16-CV-01083-BN,2016WL6277810,at*6(N.D. Tex. Oct. 25,2016). Despite this clear precedent, Westem Surplus asks the Court to reject Assure Re's statements in the FAC that contradict the Original Complaint and dismiss plaintiffs claims on those grounds. See Dkt. No. 16 at I 1, 14. In doing so, Westem Surplus relies on non- binding authority allowing courts to reject statements in amended complaints that directly contradict prior pleadings. See Catrilto v. Buendia, No. 2:20-CV-28 , 2020 WL 4584380, at*4 (S.D. Tex. Aug. 10, 2O2O). In Carrillo v. Buendia, the court explained that "[w]hen amended pleadings are a Eansparent attempt to conform the facts to the requirements of the cause of action and represent diametrically opposed recollections ofthe events, the Court has discretion to reject the changes as sham. " Id. (ciittgBradley v. Chiron Corp.' 136 F.3d 1317, 1324-25 (Fed. Cn. 1998) (rejecting allegations that were materially changed without adequate explanation)); see akoFed. R. Civ. P. 11(b). The Court declines to follow cadllo's lead in this case. Fist, majority Carrilto appeaff to be inconsistent with current precedent and is not the ru1e across circuits. Most &cuits, including the Fifth Circuit, follow the general rule that statements in superseded pleadings ale no longel treated See Hibemia Nat'l Bank r. Camer,997 F .2d94, 101 (5th Ct. as judicial admissions. 1993) (refusing to consider factual allegations in the original complaint that were "amended away" by the amended complaint); w. Run Student Hous. Assocs., Cir. 2013) (ciing Hibemia and collecting LLCt. Huntington Nat. Bank,712F.3d 165, cases 171 (3d from the First, Seventh, and Ninth Circuit Courts of Appeals). "That is so even when the proposed amendment flatly contradicts the initial allegation" or where it is obvious that the changes were for the purpose of avoiding 9 dismissal. W'. Run Studmt Hous. Assocs. , 712 F .3d at 172. Plaintiffs routinely amend complaints to corect factual inadequacies in response to a motion to dismiss. A. Wright, et a1., Federal Practice and Procedure .See 6 Charles $ 1474 (3d ed. 2021). And superseded allegations may still be considered as evidence at the summary-judgment or triai stage. White, 720 F .2d at 1396. Accordingly, the Court declines to consider Assure Re's superseded allegations as judicial admissions, and instead, foliows the general rule that any alleged factual inconsistencies are more appropriately considered as eyidence at the summary-judgment or tdal stage. Additionally, the rule in Cadllo is derived from precedent authorizing district courts to strike or disregard "sham" pleadings under the guise ofFederal Rule of Civil Procedure Rule 11. See Bradley,136 F.3d at 1324-25. While the Fifth Circuit has not directly addressed this issue, at least one circuit has held that Rule 1 l, which is the proper mechanism for allegations ofbad faith conduct, is not the appropriate vehicle for courts to dismiss or strike pleadings at the motion-to-dismiss stage. See, e.g., PAE Gott't Servs. Inc. v. MPRI, Inc. , 514 F.3d 856, 859 (9th Cir. 2007) (holding that striking ailegations as "sham" was an impermissible resolution on the merits and recogrrizing that nothing in the Federal Rules prevent a party from filing successive pleadings that make inconsistent or contradictory allegations).2 Here, Westem Surplus has not alleged or shown that Assure Re has acted in bad faith-a showing that can only be made aftet the parry is given an opportr:niry to respond under the procedures of Rule 1l-therefore, the Court will not dismiss or strike any allegations in the FAC based on Rule 11. A prior version of Rule 11 did authorize a district court to "strike pleadhgs . . . as sham and false," but this provision was eliminated rn 1983. ,See Fed. R. Civ. P. 11 advisory committee's note to 1983 amendment; 5A Charles Alan Wright, et al., Federal Practice and Procedure $ 7336.3 (4t}:. ed.2027). 2 10 Moreover, even if the Court were to follow Carrillo and consider allegations from the Origtnal Complaint, the alleged inconsistencies between the two complaints ia this case are not so contradictory as to warrant dismissing claims or striking certain statements. In the FAC, Assure Re revised various facts surrounding the lormation of the 2013 Auto Progtam Agreement and the terms of the alieged contract.3 SaeDkt. No.8!J!l 3+-37,40,82. For example, Assure Re modified the formation timeline, omitted references to any seven-year term, and stated that the agreement was "capable of full performance within one yeal of inception. " ld.1136. Assure Re explains that these modifications merely clariff when it would receive compensation for its work on the Auto Program-namely, at the time they entered into the 2013 Auto Program Agreement-and for how long compensation would continue (an undetermined length of time dependent on the Auto PAA). Dkt. No. 20 at 12- 16. These types of clarification are permissible at this stage, and Westem Surplus's attempts to characterize these modifications as impermissibly contradictory are not persuasive. Accotdingly, the Court declines to strike or dismiss the FAC based on statements made in the Original Compiaint. Therefore, in determining whether Assure Re has adequately stated claims for relief, the Court wiII only consider factual alegations included in the FAC. 4. Analysis A, Assure Re has adequately stateil claims for breach of contract and anticipatory rePuiliation. Westem Surplus alleges that the FAC fails to state a claim for breach of conuact (and thereby anticipatory repudiation) in three respects: a lack of consideration, failure to comply I plaintiffs Original Complaint only contained a breach-of-contract claim related to the 2013 Auto Program Agreement; therefore, Westem Surpius only discusses contradictions related to that agreement. Compare DkL No. I u,fth Dl<t. No. 8 tlll 64-73. l1 with the statute offrauds, and failure to adequately state a defense SeeDkt. No. 16 at 18. Howevet, Western Surplus admits that to the statute offrauds. unlile its arguments related to the equitable claims, "its arguments on the contract claims all rely on the Court considering the facts stated in other pending lawsuits and in the original claim in conjunction with the amended complaint." Dkt. No. 22 at 5-6. And, for the reasons stated above, the Court declines to consider facnral allegations from the superseded complaint or from other lawsuis as binding judicial admissions in determining whether the FAC adequately states claims for relief. Therefore, in light of the FAC's allegations arrd the Iqbal standard, the Court denies the defendant's amended motion to dismiss as to plaintiffs claims for breach of contract and anticipatory repudiation. The Court finds that Assure Re has alleged sufficient facts undel Twombly and Iqbal for those claims to survive dismissal. The parfies' arguments on these claims are fact-intensive and are better resolved either on summary judgment oI at trial. B. Assure Re's Equitable Claims: Money Hail anil Received, Unjust Emichment, and Quantum Meruit Plaintiff asserts altemative claims for quantum meruit, unjust enrichment, and money had and received. Dkt No. 8 flfl 84-102. "A party can plead legal and equitable claims in the altemative, but only when one party disputes the existence of a contract goveming the dispute. " Johnson v. Welk Fargo Bank, NA, 999 F. Supp. 2d 919 929 ' N D ' Tex.2074) (dismissing unjust enrichment claim where the plaintiff and defendant stipulated to the validity of the conEact). HeIe, Westem Surplus disputes the validity ofboth alleged contracts; therefore, Assure Re may assert its equitable claims in the altemative if its breachof-contract claims should fail. If the Court finds that a valid and enforceable contract these equitable claims will not apply. Additionally, Assure Re is entitled to plead 12 exists, inconsistent facts in support of its altemative clailras. Tiumph Aerostructures, LLC v. Lockheed MartinCorp.,No.3:10-CV-2030,2011WL1336399(N.D.Tex. Apr.6,2011)(ciiagTibor Mach. Prods., Inc. v. Freudenberg-Nok Gen. P'ship,967 F. Supp. 1006, 1013 (N.D. I11. 1997) ("In the early stages of litigation, a plaintiff is permitted both to rely on altemative theories of recovery and to incorporate inconsistent facts in separate counts.")). The Court addresses each equitable claim in tum below. i. Assure Re has stated a claim for money had anil receiverl. "Money had and received is an equitable doctrine applied to prevent unjust enrichment." Bank of Saipan v. CNG Fin. Corp., 380 F.3d 836, 840 (5th Cir' 2004) (quoting MitlerRogaska, Inc. v. Bank One, Tex., N.A.,931 S.W.2d 655,662 (Tex. no wit) superseded on other grounds App.-D allas 1996, byTex. Bus. & Com. Code $ 3.419). "InTexas, a claim for money had and received is an equitable or quasi-contract theory ofreliefthat is available ordy when there is no contract between the parties that covers the subject matter ofthe dispute." Hidden Values, Inc. v. Wade, No. 3:11-CV-1917-L,2012 WL 1836087, at *ll (N.D. Tex. May 18,2Ol2) (citttg MGA Ins. Co. v. Charles R. Chesnutt, (Tex. App.-D alTas 2072, P-C. ' 358 S.W.3d 808, 815 no pet.)). "To prove a claim for money had and received, a plaintiffmust show that a defendant holds money which in equity and good conscious belongs to [the plaintiff] .' Metro. Life Ins. Co. t. Baftle, No. 3:16-CV-2524-D'2018V'IL 3438913, at *2 (N.D. Tex. July 17,2018) (citng MGA Ins. Co.,358 S.W.3d at 814). Here, plaintiff alleges that Westem Surplus "has held, and continues to hold, money that belongs to [Assure Re] in equity and in good conscience." Dkt. No. 8 fl 100. westem Surplus contends that the FAC and evidence not properly before the Court at this stage show that Assure Re has already been compensated fol its services, and therefore, Assure 13 Re improperly seeks the benefit of its bargain through this equitable claim. Dkt. No. 16 at 8-19. However, the FAC clearly alieges that Westem Surplus has failed to pay Assure Re under the 2011 and 2013 agreements from July 2019 until the present, despite continuing to receive commission and payouts from the OG Program and the Auto Program. ,Sae Dkt. No. 8 !]fl 30, 53. And any evidence to the contrary is more appropriateiy considered on summary judgement or at triai. Thus, accepting plaintiffs allegations as true, the Court finds that the FAC sufficiently states a claim for money had and received for commissions withheld between Itiy 2019 and present. As a result, the Court denies the defendant's motion as to this claim ii. The Court ilismisses Assure Re's independent claim for unjust emichment. "'Unjust enrichment is an equitable principle holding that one who receives benefits unjustly should make restitution for those benefits,'regardless of whether the defendant engagedinwrongdoing." Jaweyv.Alguire,846F.Supp.2d662,673(N.D.Tex.2011) (quoting Teras Integrated Conreyor Sys., Inc. v. Innovative Conveyor Concepts, Inc.,300 S.W.3d 348,367 (Tex. App.-Dallas 2009, pet. denied)). "Unjust effichment occurs when the person sought to be charged has wrongfully secured a benefit or has passively received one which it would be unconscionable to rctatn." Id. The vast majodty of courts in this district have "held that Texas law does not confer an independent cause of action for unjust enrichment. "a Metro. Life Ins. Co.,20l8WL See, e.g., Fisher r. Blue Cross & Blue Shield of Tex.,1zc, No. 3:10'CY-2652'L,2015 WL 5603171, at *12 (N.D. Tex. Sept. 23,2015) (Lindsay, J.) (noting that "the vast majority of courts hold that unjust enrichment is not a separate cause of action"); see also Dallas Cty. v. MERSCOfuP,lnr., No. 3:11-CV2733-0,2013 WL 5903300, at *9 (N.D. Tex. Nov. 4, 2013) (O'Connor, J.) ("Unjust eruichment is not an independent cause ofaction under Texas law."). a t4 3438913, at *2. These courts generally "read claims for unjust enrichment as pleading an equitable common law claim for money had and received." Janvey,846 F. Supp. 2dat674 (intemal quotes omitted); Villareal v. Fint Presidio Bank,283F. Supp. 3d 548, 553 n.5 (W.D. Tex.2017) ("Claims for money had and received and unjust enrichment are materially and substantively identical."). However, Texas courts of appeals appear split on this issue. Elias t. Pilo,781 F. App'x 336, 338 n.3 (5th Ct. See 2019).5 And some courts fail to address the issue altogether at the mofion-to-dismiss stage. See, e.g., Cooper v. Gafas, No. 3:16-CY-2630- L,2Ol7 V,lL 3209452, at *4 (N.D. Tex. Mar. 7 ,2017), report and recommendation adopted,No. 3:16-CY-2630-L,2017 V,|L7512934 (N.D. Tex. Aug. 11, 2017) (upholdingboth unjustenrichment and money-had-and-received claims at the motion-to-dismiss stage without addressing whether unjust enrichment is an independent cause ofaction). The parties here did not address this issue in their briefing. However, the Court finds that Assure Re's "factual allegations in support of its money had and received claim and unjust enrichment claim are indistinguishable." Synerg Strategic Sols., LLC v. Totus Sob., *11 Izc, No. 3:16-CY-2649-5, 2019 WL 1406599, at Q'{.D. Tex. Mar. 28,2019). Accordingly, the Court will ad&ess both claims "as one claim for money had and received" & Gas, lnc.,528 S.W.3d 708, 742 (Tex. App.-Texarkana 2017 , pet denied) ltreating unjust enrichment as an independent cause of action), and Pepi Corp t Galliford' 2545.W.3d45i, +Ob (Tex. App.-Houston [1st Dist.] 2007, pet struck) ("Unjust enrichment is an independent cause of action.'1, with Spellmann t. Love,534 S.W.3d685,693 (Tex- App -Corpus Chri;ti 2017, pet. denied) ("[A] cause of action for unjust enrichment . . . fails as a matter oflaw because it is not an hdependent cause of action. "), and R.M. Dudley cottst. co., Inc. t,. Dawson, 258 S.W.3d 694, 703 (Tex. App.-Waco 2008, pet. denied) ("Unjust enrichment, itself, is not an independeni causi of action.";. Although the Texas Supreme Court has referred to a "cause of action" or "claims" ofunjust enrichment, it appears to have not yet lesolved whether unju,st enrichment is an indepenient cause of action or merely a "theory of liability that a plaintiff-can pursue through severil equitable causes ofaction." Hancock v. Chicago Title lns. Co.,635 F.-Supp.2d !:S, SOO 6N.O. fex, 2009); see Fortune Prod. Co. t'. Conoco, Inc., 52 S.W .3d 671' 683 (Tex 2000) (,.Unjust inrichment claims are based on quasi-contract"); HECI Expl. Co. v. Neel,982 S.W.2d 881, 891 (Tex. 1998) ("The third cause of action . . . was unjust enrichment'")' 5 Compare Freeman y. Harleton Oil 15 and dismiss Assure Re's unjust enrichment claim "as repetitive and superfluous." Id. (citing Metro. Life Ins. Co.,2018 iii. WL 3438913, at *2). Assure Re has stateal a claim for q[antum meruit. Similar to ptaintiffs claim for money had and received, plaintiff brings a claim for quantum meruit as an altemative to its breach-of-contract claims. Dkt. No. 8 flfl 84-93. Quantum meruit is an equitable theory of recovery that is based on an implied agreement to pay for benefits received. Heldmfels Bros. r. City of Cotpus Ch*ti, 832 S.W.2d 39, 41 (Tex. 7992')(ciineVomExpl.Co.v.ChnronU.S.A., lnc.,7875.W.2d942,944(Tex. 1990)). To recover under quantum meruit, a plainti-ff must establish that: 1) valuable services andlor materials were fumished, 2) to the party sought to be charged, 3) which were accepted by the party sought to be charged, and 4) under such circumstances as reasonably notified the recipient that the p1aintiff, in performing, expected to be paid by the recipient. Id. The damages for quantum meruit are restitution, in the form of the reasonable value the work perform ed. of Hillv. Shamoun&Norman, LLP,544 S.W'3d 724,733 (Tex.2018). Here, Assure Re pleads quantum meruit as an aitemative to its breach-of-contract claims by stating *rat it conferred hundreds of hours of services to Westem Surplus, which Westem Surplus accepted, and that Westem Surplus had notice that Assule Re expected to be paid for its services. ,See Dkt. No. 8 fl'lf 84-93. In line with iu other alguments against the equitable claims, Westem Surplus contends that Assure Re improperly seels to recover its "benefit of the bargain" damages in its quantum-meruit claim. Dk. No. 16 at19. Defendant argues that Assure Re has already received payment under a restitution basis fol several years and continues to receive payment; therefore, it is not entitled to relief under a quantum-menrit claim. Id. This argument inaccurately characterizes the FAC and does not compel dismissal. 16 Assure Re contends that it is seeking to recover in excess of what it already received from defendant prior to July 2019, and the FAC does not contain a statement indicating that any payments have continued past luly 2019. SeeDkt.No.20 at25-26. Thus, for the same reasons discussed above with the money-had-and-received claim, the Court finds that Assure Re has stated a claim for quantum meruit. Therefore, the defendant's amended motion to dismiss is denied with respect to this claim. C. The Court ilismisses Assure Re's request for a declaratory jualgment as reilundant in light of the affirmative causes of action in this case . A district court has broad, but not unfettered, discretion to decide, or dismiss, a request for declaratory judgement under the Federal Declaratory Judgment Act, 28 U.S.C. $2201. Travelers Ins. Co.v. Loubiana Farm Bureau Fed'n, lnc.,996F.2d774,778 (5th Cir. 1993). "Courts have declined to exercise their discretion to decide declaratory judgment actions where deciding that action would be redundant in light of the affirmative causes of action before the Court." Ameisure Ins. Co. v. Thermacor Process, Inc., No. 4:20-CV-01089-P, 202lWL 1056435, at *7 O{.D. Tex. Mar. 79,2021); see also St. PaulIns. Co. v. Trejo,39 F.3d 585, 590-91 (5th Cir. 1994) (considering "whether retaining the lawsuit would serve the purposes ofjudicial economy" among seven nonexclusive facto(s to consider when determining whether to decide or dismiss a declaratory acion); Great Am. Ins. Co. v. Goin, No.3:15-cv-75-L,2011 WL4238698, at*4(N.D. Tex. Sept.25,2017) (explainingthat "district courts in this Circuit regularly reject declaratory judgment claims seeking the resolution of issues that are the mirror image of other claims in a lawsuit." (citations 77 omitted)).6 "A declaratory judgment action is redundant for this reason if resolution of the affirmative claims and counterclaims before the Court would resolve all questions that the declaratory judgment action (aises." Ameisure Ins. Co.,2021WL 1056435, at *7. Here, Assure Re requests a declaration setting forth the parties'rights and obligations under the alTeged 2077 OG Program Agreement and the 2013 Auto Program Agreement. Dkr. No. 8 !f''lf 113-18; Dkt. No. 20 at 30. Westem Surplus argues that Assure Re's claim for declaratory relief should be dismissed because it is duplicative of its claims for breach of contract and anticipatory repudiation, ciing Flanagan r Chesapeake Expl., 0222-8,2015WL 6736648, at *4 (I{.D. Tex. Nov. 4,2015). Dkt. No. 76 LLC, No. 3: 15-CV- at27. lnFlanagan, the disuict court dismissed the plaintiffs' claim for a declaration as to how oil and gas royalties should be calculated as duplicative because "this was precisely what it must determine to resolve the breach of contract claim." .fd (citing Mem. Op. & Order, Aug. 10, 2015, Dkt. No. 13 at 19). The court there reasoned that any determination of the defendant's royalty obligations under the contract would necessarily determine whether those royalty obligations would continue in the future. Id. (cittng Regus Mgmt. Grp. 2008 2434245, at *3). WL Therefore, a declaration would be unnecessary under principles ofres judicata. Id. Assure Re suggests that its declaratory-judgment request is not duplicative because seeks it to declare and define the parties "rights and obligations under both agreements" for See, e.g., Regus Mgmt. Grp., LLC r. Int'l Bus. Mach. Corp , No. 3:07-CV-1799, 2008 WL 2434245 ' at *3 (N.D. Tex. June 17,2008) (Boy1e, J.) (dismissing declaratory judgment claim as entirely repetitive and unnecessary); Xtria LLC t. Tracking Sys.,.Iar., No. 3:07-CV-0160-D, 2007 WL 1'791252, at*3 of Q.{.D. Tex. J]une 2l,2OO7) (Fitzwater, J.) (dismissing declaratory iudgment action as duplicative Lines, No. 04-CVAmerican Empire Surplus an existirg breach of conbact claim); Albritton Props. t 2531,2005 WL 975423, at *2 (N.D. Tex. Apr. 25,2005) (Solis., J.) (dismissing declaratory judgment counterclaim where the disputed issues were already pending). 6 18 "now and in the future"-information that it alleges will not necessarily be determined by the contract claims. Dkt. No. 20 at 30 (citing 5436, LLC v. CBS Corp., No. CIV.A.H-08- 3097,2009WL3378379,at*76-17 (S.D. Tex. Oct. 16,2009) (findhgthatdeclaratoryjudgment claims are not redundant where the declaratory action seels to define the ongoing and future duties of the parcies under the goveming conuact)). This argument, however, is not persuasive in this case. In the FAC, plaintiff alleges that it had completed all of its obligations under both alleged contracts as soon as Hudson and Westem Surplus entered into their respective agreements. Dkt.No.8fl1j17,42. Thus, the only continuing right or obligation alleged is Assure Re's right to continue to receive payment under the alleged 2011 and 2013 agreements for work already completed, which will necessarily be resolved by the contractual claims. Therefore, the Court finds that, as in Fhnagan, Assure Re's declaratory- judgment claim is precisely what the Court must determine to decide Assure Re's contract claims, and any determination of defendant's obligations under the conffact will determine whether those obligations continue in the future. As a result, the Court dismisses Assure Re's declaratory judgment claim. 5. Leave to Amenil The Court is mindful of the liberal policy favoring allowilg at least one oppornrnity to amend pleadings "when justice so requires." Fed. R. Civ. P. 15(a)(2). However, " a party must expressly request leave to amend." Law v. Ocwen Loan Servicing,L.L.C.,5ST F. App'x 790,796 (5th Cir. 2014) (quotation marks and citation omitted). "When a plaintiff fails to request leave to amend or indicate what might be added to the complaint if amendment were allowed, a district court may dismiss the cause of action with prejudice. t9 " Son v. Wells Faryo Bank,lll., No. l:18-CV-488-RP, 2019 WL 317251, at *3 (W.D. Tex. Jan. 24,2019) (ciinglosephv. Bach&Wassaman, L.L.C.,487 F. App'x 173,178 (5th Cil. 2012)). Here, Assure Re has not requested leave to amend its complaint, nor is it apparent to the Court how the deficiencies identified in this Order could be cured. The Court therefore declines to sua sponte permit Assure Re to amend its complaint a second time. 6. Conclusion For the reasons stated above, the Court grants in part and denies in part the defendant's Amended Motion to Disrniss @kt. No. 16). The Court dismisses Assure Re's claims for unjust enrichment and declaratory judgment with prejudice. A11 other claims survive dismissal. Finally, the Court denies Westem Surplus's initial motion to dismiss @kt. No. 6) as moot. So ordered on June | ( ,zozt. C) J 20 WESLEYHENDRIX D STATES DISTRICT JUDGE

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