Sandee's Catering v. Agri Stats, Inc.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SANDEE’S CATERING, )

)

Plaintiff, )

) No. 20 C 2295

v. )

) Judge Virginia M. Kendall

AGRI STATS, INC. et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

On October 26, 2020, this Court, while largely upholding Plaintiff’s Complaint, granted

the Joint Defendant’s Motion to Dismiss Plaintiff’s unjust enrichment claims. The Court found

that “[b]y failing to clearly state under which laws or which states Plaintiff wishes to bring its

unjust enrichment claims, Plaintiff has not met its Rule 8 pleading requirements.” (Dkt. 88 at 24).

The Court dismissed Plaintiff’s unjust enrichment claims without prejudice, giving leave to

Plaintiff to amend its Complaint, which Plaintiff timely did. The Defendants now move for

Judgment on the Pleadings for the unjust enrichment claims in Plaintiff’s Amended Complaint.

(Dkt. 91 ¶¶ 208–52). Plaintiff has brought claims under the laws of Arkansas, Arizona, the District

of Columbia, Florida, Iowa, Kansas, Maine, Michigan, Minnesota, Mississippi, Missouri,

Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota,

Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia,

and Wisconsin. (Id.). The Court denies the Motion for Judgment on the Pleadings as to all unjust

enrichment claims, except those under the laws of Florida and North Dakota, which are dismissed

with prejudice.

LEGAL STANDARD

A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil

Procedure is governed by the same standards as a motion to dismiss for failure to state a claim

under Rule 12(b)(6). Adams v. City of Indianapolis, 742 F.3d 720, 727–28 (7th Cir. 2014). The

only difference between a motion for judgment on the pleadings and a motion to dismiss is timing;

the standard is the same. Federated Mutual Insurance Co. v. Coyle Mechanical Supply Inc., 983

F. 3d 307, 313 (7th Cir. 20202). “When a plaintiff moves for judgment on the pleadings, the

motion should not be granted unless it appears beyond doubt that the nonmovant cannot prove

facts sufficient to support its position, and that the plaintiff is entitled to relief.” Scottsdale Ins.

Co. v. Columbia Ins. Grp., Inc., 972 F.3d 915, 919 (7th Cir. 2020). In order to succeed, “the

moving party must demonstrate that there are no material issues of fact to be resolved.” Coyle

Mechanical Supply Inc., 983 F.3d at 313 (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S.

Bend, 163 F.3d 449, 452 (7th Cir. 1998)). As with a motion to dismiss, the Court must determine

whether the complaint states a claim to relief that is plausible on its face, drawing all reasonable

inferences in the plaintiff’s favor. Gill v. City of Milwaukee, 850 F.3d 335, 339 (7th Cir. 2017)

(citations omitted).

DISCUSSION

The alleged facts in this case have already been discussed at length in this Court’s earlier

Memorandum Opinion denying in part the Defendants’ Motion to Dismiss. (See Dkt. 88 at 2–6).

Therefore, the Court will focus specifically on the unjust enrichment claims. The Defendants

argue generally that Plaintiff has failed to meet the pleading standards required by Fed. R. Civ. P.

8. Defendants also argue that Plaintiff has failed to state a claim under specific state laws. For the

reasons discussed below, Plaintiff’s unjust enrichment claims may largely proceed.

I. General Pleading Standard

The Court previously dismissed Plaintiff’s Unjust Enrichment claims in its Complaint

because Plaintiff failed to meet the Rule 8 pleading standards. In particular, Plaintiff failed to

clarify under which states it wished to bring unjust enrichment claims. Plaintiff confusingly stated

in a footnote in its original Complaint that “[u]njust enrichment claims are alleged herein under

the laws of the states for which claims are alleged in Counts Two and Three above,” and only

outlined the basic elements of an unjust enrichment claim with no distinction between the various

state laws. (Dkt. 1 at p. 76 n. 15). The Court found that Plaintiff’s Complaint failed “to account

for any consequential differences that may exist among the undifferentiated state-law claims. The

bald assertion that the alleged antitrust conduct violates dozens of non-antitrust laws, or the

implication that there are no consequential differences between those laws, is not entitled to

deference, because ‘the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions.” (Dkt. 88 at 25 citing In re Opana ER Antitrust

Litig., 162 F. Supp. 3d 704, 726 (N.D. Ill. 2016) (internal citations omitted)).

Defendants now argue that Plaintiff has failed to cure the earlier defects. Plaintiff,

however, has followed the Court’s instruction and has separated out its state law unjust enrichment

claims, clarifying under which state laws they wish to bring its claims. Defendant faults Plaintiff

for repeating language across the unjust enrichment claims of various jurisdictions, seeking to

require Plaintiff to further differentiate their claims. This is more than the pleading standards

require. Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “fair notice of what the

claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (citation omitted). Second, the factual allegations in the complaint must be sufficient to

raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs.,

Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that

offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will

not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

Here, while Plaintiff may repeat key language throughout the unjust enrichment claims,

the Amended Complaint nonetheless meets the Rule 8 pleading standards. It informs Defendants

of the cause of action, provides a factual basis for the claim, and raises the possibility of relief. A

complaint must be “read sensibly and as a whole,” Engel v. Buchan, 710 F.3d 698, 710 (7th Cir.

2013), and while there are repetitions in the Amended Complaint, that may be more a result of the

similarities of unjust enrichment laws across jurisdictions, than any pleading deficiencies on the

part of Plaintiff. When viewing the Complaint as a whole and reading the unjust enrichment claims

together with the factual background, the Complaint adequately alleges unjust enrichment claims

across various jurisdictions. The Court denies dismissal on this ground.

II. State-Specific Claims

Having declined to dismiss on general pleading standards, the Court will now review the

merits of state-specific claims. Defendants argue that: (1) unjust enrichment is not a standalone

basis for recovery in Mississippi and New Hampshire; (2) Plaintiff has not alleged that it conferred

a “direct benefit” as required under the laws of Arizona, Florida, Maine, Michigan, North Carolina,

North Dakota, Rhode Island, and Utah; (3) Sandee’s has failed to allege a duty owed to it by

Defendants as required under South Carolina law; and (4) Sandee’s fails to allege that it lacks an

adequate remedy at law as required under the laws of Arizona, Kansas, Minnesota, Nebraska,

Nevada, New Hampshire, North Dakota, South Dakota, Tennessee, and Utah. The Court grants

the dismissal as to Florida and North Dakota, but otherwise will allow the unjust enrichment claims

to proceed.

A. Unjust Enrichment Forms a Standalone Basis for Recovery (MS & NH)

Defendants first argue that unjust enrichment does not form a standalone basis for recovery

in Mississippi and New Hampshire. As to Mississippi, the authority on whether an unjust

enrichment claim may form a standalone basis for recovery is split. As discussed in a similar

antitrust case, “with respect to Mississippi, there is considerable authority that supports the

existence of an independent state law claim for unjust enrichment.” In re Processed Egg Prod.

Antitrust Litig., 851 F. Supp.2d 867, 913 (E.D. Pa. 2012); see also In re Loestrin 24 FE Antitrust

Litig, 410 F.Supp.3d 352, 381 (D. R.I. 2019) (“A simple search yields many cases out of the

Mississippi Supreme and Appellate Courts within the past decade recognizing unjust enrichment

as a cause of action under Mississippi law.”).

Yet, while this view is more popular, other courts have reached the opposite conclusion.

One court in this district analyzed the issue and found that “‘[u]nder Mississippi law, unjust

enrichment is not an independent theory of recovery.’ Such a claim ‘depends upon a showing of

some legally cognizable wrong.’” See In re Potash Antitrust Litig., 667 F. Supp. 2d 907, 948

(N.D. Ill. 2009), aff’d sub nom. Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012)

(citing Cole v. Chevron USA, 554 F.Supp.2d 655, 671–73 (S.D.Miss.2007). In In re Potash, the

Court dismissed the unjust enrichment claim, finding that the indirect purchaser plaintiffs had

failed to allege any legally cognizable Mississippi claim and therefore could not bring a

Mississippi claim. Id. In re Potash is distinguishable because here, Plaintiff has made out an

antitrust claim under Mississippi laws. (See Dkt. 88 at 16 – 17, upholding Plaintiff’s Mississippi

state antitrust claim). As In re Potash is distinguishable, and because more recent cases have also

held that unjust enrichment is a standalone claim in Mississippi, the Court denies the motion to

dismiss Plaintiff’s Mississippi unjust enrichment claim.

Defendants’ sole authority that New Hampshire does not allow unjust enrichment as a

standalone basis for recovery is equally unpersuasive. That case, Gen. Insulation Co. v. Eckman

Constr., 992 A.2d 613, 621 (N.H. 5 2010), while surveying the law, stated that “…unjust

enrichment generally does not form an independent basis for a cause of action [under New

Hampshire law].” (citations omitted) (emphasis added). However, other cases have found an

exception for indirect purchaser plaintiffs to bring unjust enrichment claims in New Hampshire as

standalone claims. See In re Niaspan Antitrust Litig., 42 F. Supp. 3d 735, 767 (E.D. Pa. 2014)

(finding that “courts have allowed indirect purchasers to bring parasitic unjust-enrichment claims

based on defendants' violations of New Hampshire's consumer-protection statutes”); In re

Chocolate Confectionary Antitrust Case, 749 F. Supp. 2d 224, 240 (M.D. Pa. 2010) (hereinafter

“Chocolate Confectionary”) (rejecting dismissal of indirect purchasers’ unjust enrichment claim

under New Hampshire law, although finding it may later prevent the plaintiffs from pursuing both

equitable and legal recourse for the alleged consumer protection injuries, it imposes no such

restriction at the pleading stage.). The Court denies the motion to dismiss Plaintiff’s New

Hampshire unjust enrichment claims.

B. Plaintiff Sufficiently Alleged that It Conferred a “Direct Benefit” on

Defendants as Required Under the Laws of Eight States

Defendant also challenges Plaintiff’s unjust enrichment claims for Arizona, Florida,

Maine, Michigan, North Carolina, North Dakota, Rhode Island, and Utah for failing to sufficiently

allege that it conferred a “direct benefit” on Defendants. At issue is the fact that Plaintiff is an

indirect purchaser of Defendants’ products. See Dkt 91 ¶ 38 (alleging that Sandee’s “purchased

turkey . . . once or more, other than directly from Defendants”). Defendants claim this is not an

alleged direct benefit for the purposes of these states’ laws. The Court will look at each state in

turn.

i. Arizona

Defendant cites one case for the proposition that Plaintiff must allege a “direct benefit:”

Brown v. Pinnacle Restoration LLC, No. 1 CA-CV 12-0550, 2013 WL 3148654, at *2-*3 (Ariz.

Ct. App. June 18, 2013). However, this case did not hold that Plaintiff need allege a “direct

benefit,” instead stating that a claim for unjust enrichment requires a showing that the defendant

“received a benefit and [that] it is unjust that [the defendant] retain that benefit without being

required to compensate plaintiff for the value received.” Id. The case found a benefit was

conferred, although it was not directly to the Defendant, which is in line with Sandee’s position.

Other cases have held similarly. See In re Auto. Parts Antitrust Litig., 50 F. Supp. 3d 836, 864-65

(E.D. Mich. 2014) (under Arizona law the “critical inquiry [i]s not whether the benefit is conferred

directly on the defendant, but whether the plaintiff can establish the relationship between his

detriment and the defendant’s benefit ‘flow from the challenged conduct’”); In re Packaged

Seafood Products Antitrust Litig., 242 F.Supp.3d 1033, 1089 (S.D. Cal. 2017) (hereinafter

“Packaged Seafood Products”) (Finding no authority that supports the proposition that Arizona’s

unjust enrichment statute requires a direct benefit and concluding it is not a requirement). The

Court declines to dismiss this claim.

ii. Florida

The Florida Supreme Court recently clarified that “to prevail on an unjust enrichment

claim, the plaintiff must directly confer a benefit to the defendant.” Kopel v. Kopel, 229 So. 3d

812, 818 (Fla. 2017). Other cases post-dating Kopel have upheld this rule accordingly. See

Packaged Seafood Products, 242 F. Supp. 3d at 1090; South Broward Hospital District v. ELAP

Services, LLP, 20-cv-61007-SINGHAL, 2020 WL 7074645, *6 (S.D. Fla. Dec. 3, 2020). All of

Plaintiff’s cited authority pre-date Kopel when there was more ambiguity and are no longer

interpreting current Florida law. This claim is dismissed with prejudice.

iii. Maine

Defendants cite one case for the proposition that Maine law requires a showing of a “direct

benefit” to bring an unjust enrichment claim: In re Aftermarket Filters Antitrust Litig., No. 08 C

4883, 2010 WL 1416259, at *2- 3 (N.D. Ill. Apr. 1, 2010). Few other cases have held similarly.

See e.g. In re Refrigerant Compressors Antitrust Litig., No. 2:09-MD-02042, 2013 WL 1431756,

at *25 (E.D. Mich. Apr. 9, 2013) (relying on In re Aftermarket Filters to dismiss Maine unjust

enrichment claim after cursory discussion); Rivers v. Amato, No. CIV. A. CV-00-131, 2001 WL

1736498 (Me. Super. Ct. June 22, 2001) (“No authority can be found for this ‘indirect benefit’

theory, which is, in any case, based on speculation.”). Packaged Seafood Products discussed these

cases skeptically but only decided to dismiss because the plaintiff failed to cite any support to deny

dismissal. Packaged Seafood Products, 242 F.Supp.3d at 1090–91 (discussing how Maine's

unjust-enrichment law does not appear to require conferral of a direct benefit but dismissing

because plaintiff failed to cite any cases to the contrary).

Here, however, Plaintiff has cited authority that discusses these cases at length and

determines that Maine’s unjust enrichment laws do not require a showing of a direct benefit. See

In re TFT-LCD (Flat Panel) Antitrust Litig., No. M-07-1827 SI, 2011 WL 4501223, at *10-11

(N.D. Cal. Sept. 28, 2011) (upholding indirect purchaser Maine unjust enrichment claim and

discussing Rivers before finding it unpersuasive); Chocolate Confectionary, 749 F. Supp. 2d at

243 (upholding indirect purchaser unjust enrichment claims and finding that there was not “any

specific authority holding that an indirect purchaser may not measure its recovery by the

defendant's illicit benefit”). In light of this, Plaintiff’s authority is more compelling. The Court

denies the motion to dismiss as to Maine.

iv. Michigan

Defendants cite A & M Supply Co. v. Microsoft Corp., No. 274164, 2008 WL 540883, at

*2 (Mich. Ct. App. Feb. 28, 2008), for the proposition that Michigan requires a direct benefit be

alleged. A & M Supply Co. was discussed by the court in Packaged Seafood Products, 242 F.

Supp 3d at 1091, which referred to it as “an unpublished Michigan appellate case upholding a

denial of amendment for non-unjust-enrichment-specific reasons, and concluding in the alternative

that the trial court's dismissal was proper because in the context of indirect-purchaser suit

“the unjust enrichment doctrine does not apply....” (internal citations omitted). And as discussed

by the Packaged Seafood Products court, the Michigan Supreme Court has explicitly allowed at

least one unjust enrichment claim based on conferral of an indirect benefit. Id. (citing Kammer

Asphalt Paving Co. v. E. China Twp. Sch., 443 Mich. 176, 504 N.W.2d 635, 641 (1993)).

Not to mention, Packaged Seafood Products is not the only case to allow a Michigan unjust

enrichment case to proceed, despite an indirect benefit. See In re Auto. Parts Antitrust Litig., 29

F. Supp. 3d 982, 1020-21 (E.D. Mich. 2014); In re Suboxone (Buprenorphine Hydrochloride and

Naloxone) Antitrust Litig., 64 F.Supp.3d 665, 706 (E.D. Pa. 2014). The Court denies the motion

to dismiss this claim.

v. North Carolina

Defendants further argue that North Carolina requires the conferral of a direct benefit.

Defendants cite one unpublished opinion from the North Carolina Court of Appeals that states the

“Court has limited the scope of a claim of unjust enrichment such that the benefit conferred must

be conferred directly from plaintiff to defendant, not through a third party.” Baker Constr. Co. v.

City of Burlington, No. COA09-13, 2009 WL 3350747, at *6 (N.C. Ct. App. Oct. 20, 2009).

However, as discussed by the court in Packaged Seafood Products, many Courts disagree with

this interpretation, and the North Carolina Supreme Court has never adopted the direct benefit

language. 242 F. Supp 3d at 1091-92 (citations omitted). Allowing indirect benefit claims to

proceed under North Carolina unjust enrichment law is the majority view. See e.g. In re Processed

Egg Products Antitrust Litig., 851 F.Supp.2d 867, 930–32 (E.D. Pa. 2012) (conducting thorough

analysis of North Carolina law and concluding same); In re Lidoderm Antitrust Litig., 103

F.Supp.3d 1155, 1178 (N.D. Cal. 2015) (same). The Court denies dismissal of this claim.

vi. North Dakota

Defendants cite one case, McColl Farms, LLC v. Pflaum, 837 N.W.2d 359, 367 (N.D.

2013) to argue that North Dakota requires pleading a direct benefit. The bulk of the authority

supports Defendants’ position that that indirect purchaser allegations are insufficient to establish

a “direct benefit” under North Dakota law. See, e.g., In re Lidoderm, 103 F.Supp. 3d at 1179; In

re DDAVP Indirect Purchaser Antitrust Litig., 903 F.Supp.2d 198, 235 (S.D.N.Y.2012)

(“Plaintiffs have not and cannot plead a direct benefit of the kind that North Dakota law requires—

in other words, something akin to an arms-length transaction between the Indirect Purchaser

Plaintiffs and Defendants is required to state a claim.”); In re TFT–LCD (Flat Panel) Antitrust

Litig., 599 F.Supp.2d at 1191 (finding that the “broader language of Apache suggests that a ‘direct

benefit’ is required under North Dakota law...”); In re Relafen Antitrust Litig., 225 F.R.D. 14, 28

(D.Mass. 2004) (“Here, the benefits that SmithKline received were obtained most directly from

wholesalers, who, in turn, obtained benefits from end payors. Because [North Dakota] precedent

casts doubt on the end payors' unjust enrichment claims,” they were dismissed). The one recent

case that Plaintiff cites, In re Auto. Parts Antitrust Litig., No. 12-md-02311, 2014 WL 2993753,

at *35 (E.D. Mich. July 3, 2014), does not directly discuss whether pleading a direct benefit is

required. Given this, Plaintiff’s North Dakota’s claims are dismissed.

vii. Rhode Island

The majority of cases the Court has reviewed have found that Rhode Island does not require

a conferral of a direct benefit to state an unjust enrichment claim. Packaged Seafood Products,

242 F. Supp 3d at 1092 (finding the one case cited by the defendants did not support this

proposition and encountering no cases to the contrary); In re Loestrin 24 FE Antitrust Litig., 410

F.Supp.3d at 383 (finding Rhode Island does not require pleading a direct benefit and in the few

cases cited by the defendant did not support the proposition); In re Auto. Parts Antitrust Litig., 50

F. Supp.3d at 898 (same); In re TFT–LCD (Flat Panel) Antitrust Litig., M 07–1827 SI, 2011 WL

4501223 (N.D. Cal. Sept. 28, 2011) (same). Defendants here have only cited Alessi v. Bowen

Court Condo., No. 03-0235, 2010 WL 897246, at *4 (R.I. Super. Ct. Mar. 10, 2010), but in this

case the question was whether any benefit was conferred, not whether it was conferred indirectly.

See In re Loestrin 24 FE Antitrust Litig., 410 F.Supp.3d at 383 (discussing Alessi and finding it

does not support the proposition that Rhode Island requires a direct benefit). The Court denies the

motion to dismiss this claim.

viii. Utah

Finally, the Court declines to dismiss Plaintiff’s Utah unjust enrichment claim for failure

to allege a direct benefit. Defendants’ cite one case, Jones v. Mackey Price Thompson & Ostler,

355 P.3d 1000, 1018 (Utah 2015), for this proposition. It is true that a long line of Utah cases have

held that there must be a “direct benefit.” See Concrete Prod. Co., a Div. of Gibbons & Reed v.

Salt Lake Cty., 734 P.2d 910, 911–12 (Utah 1987 (finding a third-party unjust enrichment claim

was impermissible, in part, because “[n]o direct benefit...[wa]s present....”).

However, these cases have not distinguished between a direct and indirect benefit, and

instead have only distinguished a direct and incidental benefit. Emergency Physicians Integrated

Care v. Salt Lake Cty., 167 P.3d 1080, 1086 (Utah 2000) (“While unjust enrichment does not result

if the defendant has received only an incidental benefit from the plaintiff's service,...this court has

found that a large variety of items fall under the definition of ‘benefit,’ including an ‘interest in

money, land, chattels, or choses in action; beneficial services conferred; satisfaction of a debt or

duty owed by [the defendant]; or anything which adds to [the defendant's] security or advantage.’”

(citations omitted) (alterations in original)); Jeffs v. Stubbs, 970 P.2d 1234, 1248 (Utah 1998)

(“Nor are services performed by the plaintiff for his own advantage, and from which the defendant

benefits incidentally, recoverable.”). Other district courts that have confronted this issue have

found similarly, deciding that the antitrust injury alleged was a direct, and not incidental benefit

under Utah law. See e.g. Packaged Seafood Products, 242 F. Supp. 3d at 1092–93; In re Processed

Egg Antitrust Litig., 851 F.Supp.2d at 932; In re Auto. Parts Antitrust Litig., 29 F.Supp.3d at 1027–

28. Without any persuasive authority that directly decides whether an indirect benefit may

proceed, the Court denies the motion to dismiss this claim.

C. Alleging a Duty Is Not Required Under South Carolina Unjust Enrichment

Law

Defendants additionally argue that Sandee’s claim for unjust enrichment under South

Carolina law should be dismissed because it does not allege that any Defendant owed it a duty.

The basic requirements for an unjust-enrichment claim under South Carolina law are: “(1) a

benefit conferred upon the defendant by the plaintiff; (2) realization of that benefit by the

defendant; and (3) retention by defendant of the benefit under conditions that make it inequitable

for him to retain it without paying its value.” Ellis v. Smith Grading & Paving, Inc., 294 S.C. 470,

366 S.E.2d 12, 15 (S.C. App. 1988). Defendants cite three cases to support their contention: In

re Microsoft Corp. Antitrust Litig., 401 F. Supp.2d 461, 464 (D. Md. 2005) (applying South

Carolina law and dismissing the unjust enrichment claim for failing to “establish the existence of

a duty owed to him or her by the defendant”); Pitts v. Jackson Nat’l Life Ins. Co., 574 S.E.2d 502,

511-12 (S.C. Ct. App. 2002) (denying unjust enrichment where Plaintiff “failed to establish any

duty to disclose”); and Ellis, 366 S.E.2d at 15 (finding trial court should have granted motion to

dismiss based on failure to allege a breach by the defendant of “a duty giving rise to a quasi-

contractual right to restitution”).

However, the majority of cases the Court has found have ruled that a duty need not be

alleged and have squarely rejected Defendants’ interpretation of their cited cases. See e.g. In re

Auto. Parts Antitrust Litig., 29 F.Supp.3d at 1026 (finding there is no requirement to allege the

existence of a duty under South Carolina law and distinguishing Ellis); In re Pork Antitrust Litig.,

Civil Nos. 18-1776, 19-1578, and 19-2723 (JRT/LIB), 2020 WL 6149666, *29 (D. Minn. Oct. 20,

2020) (finding duty is not owed under South Carolina and finding In re Microsoft Corp. Antitrust

Litig. and Pitts were based upon a misinterpretation of South Carolina law); Los Gatos Mercantile,

Inc. v. E.I. DuPont De Nemours and Co., No. 13–cv–01180–BLF, 2015 WL 4755335, *30 (N.D.

Cal. Aug. 11, 2015) (discussing Pitts and finding no requirement to allege duty in South Carolina

law); In re Cast Iron Soil Pipe & Fittings Antitrust Litig., No. 1:14–md–2508, 2015 WL 5166014,

*37 (E.D. Tenn. June 24, 2015) (discussing Ellis, Pitts, and In re Microsoft Corp. Antitrust Litig

and deciding that alleging a duty is not a requirement in South Carolina to state an unjust

enrichment claim) . The thorough analysis of South Carolina unjust enrichment law performed by

these courts is persuasive. The Court denies the motion to dismiss Plaintiff’s South Carolina unjust

enrichment claim.

D. Sandee’s Does Not Need to Allege That It Lacks an Adequate Remedy at

Law Under the Laws of Ten States

Finally, Defendants move for judgment on the pleadings arguing that Sandee’s fails to

allege that it lacks an adequate remedy at law as required under the laws of ten states: Arizona,

Kansas, Minnesota, Nebraska, Nevada, New Hampshire, North Dakota, South Dakota, Tennessee,

and Utah. The Court need not analyze each state’s laws. Other Courts that have confronted this

identical argument have refused to dismiss on these grounds at the pleading stage, finding that

Rule 8(d)(2)’s permissiveness allows for pleading in the alternative. In re Pork Antitrust Litig.,

2020 WL 6149666, at *29 (discussing how courts have affirmed a plaintiff's right to plead unjust

enrichment as an alternative to other legal remedies); In re Generic Pharm. Pricing Antitrust Litig.,

368 F. Supp. 3d 814, 851 (E.D.Pa. 2019) (refusing to dismiss plaintiff's unjust enrichment claim

because it failed to specifically allege a lack of legal remedy, citing Rule 8(d)(2)'s

“permissiveness” of pleading in the alternative); In re Auto. Parts Antitrust Litig., 50 F.Supp.3d at

867 (collecting cases and finding pleading in the alternative viable at the dismissal stage); In re

Santa Fe Natural Tobacco Co. Marketing & Sales Practices & Product Liability Litig., 288

F.Supp.3d 1087, 1258 (D. N.M. 2017) (collecting cases and finding under Rule 8(d), the Court

would not dismiss the Plaintiffs' equitable claims at this stage because Rule 8(d)(3)'s plain

language allows them); In re Dial Complete Marketing and Sales Practices Litig., No. 11–md–

2263–SM, 2013 WL 1222310, at *8–9 (D. N.H. Mar. 26, 2013) (“[C]onsistent with Federal Rules,

Plaintiffs have simply pled their claims in the alternative ... the mere fact that plaintiffs have pled

arguable inconsistent theories is not, standing alone, a sufficient basis to dismiss one of those

claims.”); In re Light Cigarettes Marketing Sales Practices Litig., 751 F.Supp.2d 183, 192 (D. Me.

2010) (“At this stage, the Plaintiffs may assert multiple and duplicative legal and equitable claims

for relief.”); Los Gatos Mercantile, Inc., 2015 WL 4755335, at *29 (Plaintiff did not dispute that

states laws in question provided for an unjust enrichment recovery only when there is no available

remedy at law but Court found that the unjust enrichment claims may proceed in the alternative).

In the alternative, other courts that have looked at whether an adequate remedy is a requisite

under the above states’ laws have found this unavailing. In re Auto. Parts, 29 F.Supp.3d at 1015–

28 (finding that pleading a lack of adequate remedy at law not required for Arizona, Massachusetts,

Minnesota, North Dakota, and Tennessee); Unicredit Bank AG v. Bucheli, No. 10-2436-JWL, 2011

WL 4036466, at *3 (D. Kan. Sept. 12, 2011) (declining to dismiss an unjust enrichment claim for

Kansas and noting that Nelson v. Nelson, 288 Kan. 570, 597 (2009), Defendants’ cited case, “does

not include as an element the lack of an adequate legal remedy”); Sheet Metal Workers Local 441

Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F. Supp.2d 380, 429 (E.D. Pa. 2010)

(declining to dismiss Minnesota, Nevada, and North Dakota unjust enrichment claims for failure

to plead an adequate remedy at law); In re Wal-Mart Wage & Hour Employment Practices Litig.,

490 F. Supp. 2d 1091, 1124 (D. Nev. 2007) (declining to dismiss Nebraska unjust enrichment

claim when pled in alternative); Chocolate Confectionary, 749 F. Supp.2d at 240 (declining to

dismiss New Hampshire unjust enrichment claim pled in the alternative “[a]lthough this may later

prevent the IEU plaintiffs from pursuing both equitable and legal recourse for the alleged consumer

protection injuries, it imposes no such restriction at the pleading stage”); In re Processed Egg

Prod. Antitrust Litig., 851 F. Supp.2d at 915 (“[T]he absence of an adequate remedy at law is not

an element of the prima facie case for unjust enrichment under the laws of 9 of the jurisdictions at

issue—Florida, Massachusetts, Minnesota, Nevada, New Mexico, North Carolina, South Dakota,

Utah, and Vermont.”). The Court denies the motion to dismiss Sandee’s unjust enrichment claims

under the laws of Arizona, Kansas, Minnesota, Nebraska, Nevada, New Hampshire, North Dakota,

South Dakota, Tennessee, and Utah because of Rule 8’s permissive pleading standards and because

pleading an adequate remedy at law is not a required element of the states’ laws.

CONCLUSION

For the foregoing reasons, the Court denies the Defendants’ Motion for Judgment on the

Pleadings [Dkt. 108] as to all unjust enrichment claims, except for those pled under the laws of

Florida and North Dakota, which are dismissed with prejudice.

LD Ca

d/h habave

APA Hos AMA er"!

VifothiA M. Keridall

Jnited States District Judge

Date: March 15, 2021

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