# ZAKHEIM v. CURB MOBILITY LLC

> District Court, E.D. Pennsylvania · June 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10405467

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** June 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10405467

## How later opinions describe it (automated extraction)

- discussing unjust enrichment in various states, including Pennsylvania
- holding that after Twombly, “it is clear that a RICO claim must plead facts plausibly implying the existence of an enterprise with the structural attributes identified in Boyle,” including a shared purpose

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SAMUEL ZAKHEIM et al., individually and :
on behalf of all others similarly situated, :
Plaintiffs, :
: CIVIL ACTION
v. : No. 22-4594
:
CURB MOBILITY LLC et al., :
Defendants. :

McHUGH, J. June 8, 2023
MEMORANDUM
This is a consumer rights class action alleging that Defendants secretly charged taxi
passengers undisclosed service fees. Defendant Taxi Butler distributes a device that allows hotels
and other venues to call a cab at the press of a button. Plaintiffs allege that co-Defendant Curb
Mobility illegally charges passengers a fee for its use at the end of any ride that was initiated
through a Taxi Butler device. Plaintiffs maintain that this service fee is not disclosed at any point
until the conclusion of a taxi ride, and that some passengers first receive notice of the fee after
swiping a debit or credit card.
Plaintiffs raise common-law claims for fraud, unjust enrichment, and conversion arising
from this conduct. They plead additional claims under RICO, Pennsylvania and New York
consumer protection laws, and the Declaratory Judgment Act. Defendants move to dismiss many
of the claims asserted. For the reasons below, I will dismiss Plaintiffs’ claims under RICO and
the Declaratory Judgment Act, as well as the claim for unjust enrichment under New York law.
But I will deny the Motion as it pertains to Plaintiffs’ remaining common-law claims for unjust
enrichment under Pennsylvania law, fraud, and conversion.
I. Relevant Background
Defendants’ alleged scheme
Defendants Curb Mobility, LLC (“Curb”), Taxi Butler B.V. d/b/a Venue Butler (“Taxi
Butler”), and Yaiks, Inc. (“Yaiks”) (collectively, “Defendants”) have integrated their respective

technologies and technology platforms to enable venues to request taxi rides at the touch of a
button. Am. Compl. at 6, 12, ECF 19.1 Taxi Butler and Yaiks conduct business together under
the Venue Butler brand. Id. at 6.
More specifically, Taxi Butler produces a hardware device that it markets to hotels,
restaurants, and other venues. Id. at 12. When an employee at a venue presses a button on the
Taxi Butler device, an electronic request is triggered in Curb’s network for a taxi to pick-up the
passenger at that venue’s location. Id. In addition to operating the network by which venues can
call a cab using the Taxi Butler device, Curb also operates the point-of-sale system in many taxis
across the country. Id.
Hotels and other venues do not pay to obtain the Taxi Butler device, nor do they pay a fee

when they use the device. Id. The only fee charged for use of the device is passed along to taxi
passengers. Id. Passengers are never given notice of this service fee before their ride, however,
and are not given an opportunity to decline the fee. Id. at 5. Plaintiffs’ allegations further suggest
that hotels and other venues are unaware that their customers will be charged a fee when a cab is
requested using the Taxi Butler device. Id. at 21.

1 The paragraphs in Plaintiffs’ Amended Complaint are numbered incorrectly – the numbering restarts on
page 15 – so I cite to the Amended Complaint using page numbers rather than paragraph numbers.

2
Named Plaintiffs’ allegations
The named plaintiffs in this action are Samuel Zakheim, a Pennsylvania resident who
requested his cab through his hotel clerk in Philadelphia, and Ariela Ross, a New York resident

who requested a cab through her apartment building’s front desk clerk in New York City. Id. at
6-9.
On August 18, 2022, Plaintiff Zakheim asked the clerk at his hotel in Center City
Philadelphia to call him a cab. Id. at 2. After he did so, he saw the clerk press a button on a Taxi
Butler device. Id. Once the clerk ordered a cab, Zakheim waited near the front entrance of his
hotel until his taxi arrived. Id. At the conclusion of his ride, the screen inside the cab listed the
fare as $6.80, which Zakheim supplemented with a $2.00 tip – bringing his total to $8.80. Id. at
3. After he swiped his payment card, however, Zakheim discovered that he was charged $11.30,
and upon inspecting his receipt realized that he was charged a $2.50 service fee. Id. Zakheim was
given no indication that the fee would be charged at any time before or during his ride, including

on the screen inside the cab (which displayed Defendant Curb’s logo). Id. at 7-9.
On November 8, 2022, Ross was leaving her apartment building in Manhattan’s Upper
West Side for Midtown, a trip that she had “taken countless times.” Id. at 9. When the front desk
clerk in her building lobby asked if Ross wanted a taxi, Ross responded affirmatively, id., and the
clerk summoned a cab using the Taxi Butler device. Id. Because Ross took this trip frequently,
she expected it to cost around $15. Id. Upon reaching her destination, she was surprised to hear
that the total cost of the trip would be $17.50. Id. After Ross “demanded an explanation” for this
total cost, the taxi driver informed her that use of the Taxi Butler device results in a $2.50 service
fee, which the taxi driver had no ability to modify or waive. Id. Because Ross did not want to

commit fare evasion, she paid the full $17.50 fare in cash. Id. Like Zakheim, Ross had no notice

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of the service fee that she would be charged when her apartment clerk used the Taxi Butler device,
including on the in-cab screen, which advertised Defendant Curb. Id. at 9-11.
Procedural History

Zakheim filed this action on behalf of himself and a nationwide class, asserting common-
law claims for unjust enrichment, conversion, a request for declaratory relief, and a claim under
the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §
201-1 et seq., “and other similar statutes nationwide.” ECF 1. After Defendants moved to dismiss
the Complaint, Zakheim amended his original complaint to add Ross as a named plaintiff. Am.
Compl. at 1-11. The Amended Complaint also added a common-law claim for fraud, a claim under
the New York General Business Law (“GBL”), and claims under the federal Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Am. Compl. at 20-25.
Defendants now move to dismiss Plaintiffs’ common-law claims for unjust enrichment,
conversion, and fraud, Plaintiffs’ claim that Defendants violated and conspired to violate RICO,

and Plaintiffs’ request for declaratory relief, pursuant to Federal Rule of Civil Procedure 12(b)(6).
ECF 22.
II. Standard of Review
In this Circuit, motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) are
governed by the well-established standard set forth in Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009).
III. Discussion
RICO
Plaintiffs first claim that Defendants both violated and conspired to violate RICO.
Defendants respond that Plaintiffs’ RICO claims fail as a matter of law because Plaintiffs do not

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adequately allege the existence of an enterprise, as required to plead a RICO violation. I agree and
will dismiss the RICO claims, albeit without prejudice.

1. Plaintiffs’ claim under Section 1962(c) fails because they do not plead an
enterprise.
Count III of the Amended Complaint alleges that Defendants violated Section 1962(c) of
RICO, which makes it “unlawful for any person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). Establishing civil
liability under this section requires a plaintiff to demonstrate “(1) conduct (2) of an enterprise (3)
through a pattern (4) of racketeering activity, plus (5) an injury to business or property, and (6) the
racketeering activity must have been the ‘but for’ cause as well as the proximate cause of the
injury.” LabMD Inc. v. Boback, 47 F.4th 164, 179 (3d Cir. 2022) (cleaned up and emphasis added).
Under RICO, an “enterprise” includes “any individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals associated in fact although
not a legal entity.” 18 U.S.C. § 1961(4). The statute therefore describes two types of associations
that qualify as an enterprise for RICO purposes: (1) organizations such as corporations and

partnerships, and other similar legal entities and (2) “any union or group of individuals associated
in fact although not a legal entity.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 364 (3d
Cir. 2010) (citing United States v. Turkette, 452 U.S. 576, 581-82 (1981)) (cleaned up and
emphasis added).
A so-called “association in fact” enterprise must have three structural features: (1) a
purpose, (2) relationships among those associated with the enterprise, and (3) “longevity sufficient

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to permit those associates to pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S.
938, 946 (2009). The enterprise “need not have a hierarchical structure or a ‘chain of command,’”
but must at the very least function as a “continuing unit” and involve “interpersonal relationships

and a common interest.” Id. at 946, 948. The “basic requirement” of an enterprise is thus “that
the components function as a unit.” In re Ins. Brokerage, 618 F.3d at 374.
Here, Plaintiffs allege that the enterprise at issue goes beyond the Defendants, to include
hotels, venues, and taxi dispatch companies, all of whom are “joined for the purpose of selling taxi
ride hailing services with hidden fees.”2 Am. Compl. at 23. Plaintiffs assert that “Defendants
exercised discretion on behalf of the hotels and taxi dispatch companies by using the [Taxi] Butler
button to surreptitiously abduct consumers into an online network that charged hidden fees,” and
further allege that Defendants “direct[ed] the affairs of the hotels and taxi dispatch companies that
helped facilitate the illegal scheme. Id. at 24.

But Plaintiffs’ own complaint undercuts these allegations. According to Plaintiffs,
Defendants “actively conceal” the hidden fee from hotels, venues, and taxi dispatchers by
marketing the Taxi Butler ride-calling button “to venues and taxi dispatchers as a free convenience
to consumers.” Id. at 21. Rather than demonstrate that Defendants and these hotels, venues, and
taxi dispatchers were all united by the common purpose of inducing consumers into taxis where
they would be charged hidden fees, Plaintiffs plead facts to the contrary.

2 Plaintiffs’ opposition brief seems to re-frame the enterprise’s purpose as “providing a taxi for a passenger
to get from one place to another,” ECF 23 at 10, but this differs significantly from the allegations presented
in the Amended Complaint. “It is axiomatic that the complaint may not be amended by the briefs in
opposition to a motion to dismiss,” Pennsylvania ex. rel Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181
(3d Cir. 1988), and I thus rely exclusively on the characterization of the enterprise set forth in the Amended
Complaint.

6
Entities cannot plausibly pursue the enterprise’s purpose if they have no knowledge of what
that purpose even entails – and the Amended Complaint simply does not present enough facts to
suggest that all the listed entities were pursuing the purpose of “selling taxi ride hailing services

with hidden fees.” Am. Compl. at 23. Without a plausibly pled shared purpose, there can be no
enterprise. And without a sufficiently pled enterprise, Plaintiffs cannot plead all elements of their
RICO claim and the claim must fail. See In re Ins. Brokerage, 618 F.3d at 369 (holding that after
Twombly, “it is clear that a RICO claim must plead facts plausibly implying the existence of an
enterprise with the structural attributes identified in Boyle,” including a shared purpose); see also
Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 400 (7th Cir. 2009) (upholding dismissal of RICO
claims in part because the plaintiff’s allegations of an association-in-fact enterprise “do not
indicate how the different actors are associated and do not suggest a group of persons acting
together for a common purpose or course of conduct”).

To the extent that Plaintiffs seek to plead that Defendants themselves are the entities
comprising the enterprise, e.g. “Defendants are associated with each other . . .” Am. Compl. at 25,
such generalities are insufficient to show that the Defendants agreed and conspired to participate
in a racketeering enterprise to defraud consumers. The mere fact that the Taxi Butler device was
connected to Curb’s network, id. at 12, does not support a conclusion that “Defendants therefore
agreed and conspired to engage in the pattern of mail and wire fraud detailed above.” Id. at 25.
Therefore, I will dismiss Plaintiffs’ claim that Defendants violated Section 1962(c). But
because this dismissal rests on insufficient factual allegations, I will dismiss this count without
prejudice.

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2. Plaintiffs’ claim under Section 1962(d) fails to sufficiently allege the existence
of, or attempt to form, a cognizable enterprise.
Count IV alleges that Defendants conspired to violate Section 1962(c), in violation of
Section 1962(d) of RICO. See 18 U.S.C. § 1962(d). To plead a conspiracy under this section, a
plaintiff must establish that (1) two or more persons agreed to participate in an endeavor that, if
completed, would constitute a RICO violation and (2) a member of the conspiracy committed an
overt act that constituted a predicate act of racketeering to further the conspiracy. Beck v. Prupis,
529 U.S. 494, 503-07 (2000). Liability under one of the substantive provisions of RICO is not
invariably a prerequisite to Section 1962(d) liability, Smith v. Berg, 247 F.3d 532, 537-38 (3d Cir.

2001), but a § 1962(d) claim “must be dismissed if the complaint does not adequately allege ‘an
endeavor which, if completed, would satisfy all of the elements of a substantive [RICO] offense.’”
In re Ins. Brokerage, 618 F.3d at 373 (quoting Salinas v. United States, 522 U.S. 52, 65 (1997)).
Plaintiffs’ RICO conspiracy claim fails for the same reason that their substantive RICO
claim fails: the Amended Complaint does not adequately allege an endeavor that would satisfy the
enterprise element. As with their Section 1962(c) claim, Plaintiffs assert that the “enterprise”
undergirding their conspiracy claim involves the “hotels and taxi dispatch companies that
Defendants utilize as ‘partners’ in their scheme.” Am. Compl. at 25. But as discussed above this
allegation is rendered implausible by contradictory allegations elsewhere in the Amended

Complaint. I will therefore also dismiss Plaintiffs’ RICO conspiracy claim, though similar to
Plaintiffs’ substantive RICO claim I will dismiss this count without prejudice.
Preliminary state law issues
Before reaching the specific merits of Plaintiffs’ common-law claims, I address two
preliminary arguments that Defendants contend bar them all. First, Defendants argue that

8
Plaintiffs’ failure to invoke the law of a specific jurisdiction is fatal to their common-law claims
for unjust enrichment, conversion, and fraud. Second, they argue that the voluntary payment
doctrine should bar Ross’ common-law claims, because she was aware of the fee before she paid

her taxi driver. Neither defense holds.
1. Failure to invoke the law of a specific jurisdiction (all claims)
Defendants first argue that Plaintiffs’ failure to invoke the law of specific states in alleging
unjust enrichment warrants dismissal of this count for failure to state a claim, citing U.S. ex rel.
Krahling v. Merck & Co., 44 F. Supp. 3d 581, 609 (E.D. Pa. 2014) (dismissing unjust enrichment
claim on this basis in putative class action). But the other cases that Defendants cite for this
proposition all involved a conglomeration of plaintiffs from a wide array of states, requiring the
court to proceed by “cobbling together the elements of a claim . . . from the laws of the fifty states.”
In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 167 (E.D. Pa. 2009) (McLaughlin, J.); see

also Krahling, 44 F. Supp. 3d at 603 (plaintiffs asserted claims in twenty-four different
jurisdictions).
Here, in contrast, the operative facts in the Complaint took place almost entirely in
Pennsylvania and New York, making it clear that the individual Plaintiffs’ claims necessarily arise
under the laws of those states. The dismissal stage is generally an inappropriate time to challenge
a party’s ability to assert claims on behalf of a nationwide class of consumers, especially where –
as here – “the nature of Plaintiffs’ claims . . . suggest that the ‘success on the claim under one
state’s law will more or less dictate success under another state’s law.’” Suber v. Liberty Mut. Ins.
Grp., No. CV 21-4750, 2022 WL 952889, at *7 (E.D. Pa. Mar. 30, 2022) (McHugh, J.) (discussing

9
why standing to assert claims is properly addressed at the class certification stage and quoting In
re Asacol Antitrust Litig., 907 F.3d 42, 49-50 (1st Cir. 2018)).3
As such, for the purposes of ruling on Defendants’ Motion, I will address the viability of

Plaintiffs’ claims under Pennsylvania and New York law, and to the extent Defendants seek to
raise this issue again at the class-certification stage, I will rule on the issue then.
2. Voluntary payment doctrine (Plaintiff Ross’ claims)
Defendants also argue that Plaintiff Ross’ common-law claims are barred by the voluntary
payment doctrine, because Ross was aware of the fee when she paid her taxi driver – unlike
Plaintiff Zakheim, who alleges that the fee was not disclosed until after he swiped his payment
card.
“The common-law voluntary payment doctrine bars recovery of payments made with full
knowledge of the facts.” Dillon v. U-A Columbia Cablevision of Westchester, Inc., 740 N.Y.S.2d

396, 397 (N.Y. App. Div. 2002), aff’d, 790 N.E.2d 1155 (N.Y. 2003). The doctrine flows from
the principle that when a party knows it will resort to litigation over an allegedly unjust payment
or demand, “that party should take its position at the time of the demand, and litigate the issue
before, rather than after, payment is made.” Gimbel Bros. v. Brook Shopping Ctrs., Inc., 499
N.Y.S.2d 435, 439 (N.Y. App. Div. 1986). But the voluntary payment doctrine depends on the
premise that a party had sufficient opportunity to challenge a fee beforehand. See, e.g., Dillon,
740 N.Y.S.2d at 397 (lead plaintiff paid disputed late charge on cable bill “on at least five

3 I note that states may have differing rules regarding when certain common law claims may be pled together
or in the alternative to one another, as discussed below in addressing Plaintiffs’ unjust enrichment claims.
But this does not alter the core principle that the elements of the claims asserted here are unlikely to differ
significantly across jurisdictions.

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occasions”). As such, the doctrine is “inapplicable” where the payor is under coercion or duress,
or “where the payment is made under an appropriate protest or the circumstances attending the
payment demonstrate the payor’s intention to preserve the right to dispute the legality of the

payee’s demand.” Jenoure v. Body Sols. Plus, LLC of Westbury, 912 N.Y.S.2d 370, 371-72 (N.Y.
App. Term 2010) (citing 82 N.Y. Jur. 2d., Payment and Tender § 83).
Here, although the facts may not rise to the level of coercion or duress, the circumstances
surrounding Ross’ payment demonstrate a contemporaneous protest of the fee – suggesting an
intent to dispute the fee later. Ross pleads that she immediately “demanded an explanation” after
the higher-than-normal fare was communicated to her. Am. Compl. at 10. And she only paid the
fare and service fee after the taxi driver emphasized to her that drivers lack the power to “reverse,
refund, or otherwise remove” the fee. Id. She had no opportunity to confront the Defendants
named here, and the taxi driver would be placed in the middle of the dispute through no fault of

his own. Based on these facts, it would be unrealistic to conclude that Ross somehow could have
litigated this issue before payment was made.4 See Gimbel Bros, 499 N.Y.S.2d at 439. The
voluntary payment doctrine therefore poses no bar to Ross’ claims and those of potential class
members who paid the fee under similar circumstances.
Unjust Enrichment
Moving to the merits of the common-law claims, I first address Plaintiffs’ unjust
enrichment claims, as Defendants focus their most thorough arguments there. Defendants argue
that Plaintiffs’ claims fail to correspond to the traditional elements of unjust enrichment. Because

4 Even if Ross had a mechanism to have the fee removed from her fare before she paid for it – such as by
calling a customer service phone number – it would be absurd to require her to hold the taxi driver until
such a dispute could be resolved.

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Pennsylvania allows unjust enrichment to be pled as a companion to other claims, such as fraud,
this claim survives dismissal. But New York does not follow a similar rule, and Ross’ unjust
enrichment claim must therefore be dismissed.

1. The Pennsylvania unjust enrichment claim may proceed as a companion claim
to the other claims under Pennsylvania law.
Unjust enrichment in Pennsylvania is an equitable remedy that involves “the retention of a
benefit conferred by another, without offering compensation, in circumstances where
compensation is reasonably expected, and for which the beneficiary must make restitution.”
Roethlein v. Portnoff Law Assocs., Ltd., 81 A.3d 816, 825 n.8 (Pa. 2013). To prevail on an unjust
enrichment claim, a plaintiff must show that: (1) plaintiff conferred a benefit on the defendant, (2)
the defendant received the benefit, and (3) the defendant accepted the benefit under circumstances
that make it inequitable for the defendant to retain the benefit without paying value for it. Karden
Constr. Servs., Inc. v. D’Amico, 219 A.3d 619, 628 (Pa. Super. Ct. 2019).
Unjust enrichment claims are most frequently invoked on a quasi-contract theory of
liability, in which case the unjust enrichment claim “is brought as an alternative to a breach of
contract claim.” Whitaker v. Herr Foods, Inc., 198 F. Supp. 3d 476, 492 (E.D. Pa. 2016) (Robreno,
J.). But such claims can also be brought “based on unlawful or improper conduct established by

an underlying claim, such as fraud.” Id. at 492; see also Zafarana v. Pfizer, Inc., 724 F. Supp. 2d
545, 561 (E.D. Pa. 2010) (Joyner, J.); Lisowski v. Henry Thayer Co., Inc., 501 F. Supp. 3d 316,
338–39 (W.D. Pa. 2020). Under the latter theory, “an unjust enrichment claim may be pled as a
companion . . . to a claim of unlawful or improper conduct as defined by law” and “the unjust
enrichment claim will rise or fall with the underlying claim.” Whitaker, 198 F. Supp. 3d at 493.

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Here, Zakheim’s claim for unjust enrichment is clearly based on the same unlawful or
improper conduct giving rise to his UTPCPL and fraud claims. Compare Am. Compl. at 27
(stating that Defendants were unjustly enriched because they never disclosed the fee) with id. at

18 (alleging that Defendants violated UTPCPL by failing to disclose the fee to consumers) and id.
at 26 (noting that Defendants defrauded Plaintiffs by not disclosing the fee). Defendants do not
seek dismissal of Zakheim’s UTPCPL claim, and as discussed below I will allow Zakheim’s fraud
claim to proceed. His claim for unjust enrichment can therefore survive as a companion to his
UTPCPL and fraud claims. See Lisowski, 501 F. Supp. 3d. at 339 (allowing unjust enrichment
claim to proceed as companion to UTPCPL claim where claims were “premised on the same
deceptive conduct”). Moreover, Defendants’ argument that Zakheim has not pled a claim because
he received something of value in exchange for the $2.50 fee does not have a basis in law, as “a
claim of unjust enrichment is not defeated if the plaintiff received value in exchange for the benefit

that [they] conferred.” In re Actiq Sales & Mktg. Pracs. Litig., 790 F. Supp. 2d 313, 330 (E.D. Pa.
2011) (applying Pennsylvania and Indiana law); see also In re K-Dur Antitrust Litig., 338 F. Supp.
2d 517, 545 (D.N.J. 2004) (discussing unjust enrichment in various states, including
Pennsylvania). As such, I will deny Defendants’ motion as it relates to the Zakheim’s claim of
unjust enrichment under Pennsylvania law.
2. The New York unjust enrichment claim fails because it is duplicative of other
claims.
In New York, an unjust enrichment claim requires a plaintiff to establish (1) that the
defendant benefitted; (2) at the plaintiff's expense; and (3) that equity and good conscience require
restitution. Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573,
586 (2d Cir. 2006) (citing Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir. 2000)). Similar to

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Pennsylvania, unjust enrichment cases under New York law typically arise in circumstances where
“the defendant, though guilty of no wrongdoing, has received money to which he or she is not
entitled.” Corsello v. Verizon New York, Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012). But unlike in

Pennsylvania, an unjust enrichment claim is not available in New York “where it simply
duplicates, or replaces, a conventional contract or tort claim” and cannot be used as “a catchall
cause of action . . . when others fail.” Id.; see also Scifo v. Taibi, 156 N.Y.S.3d 40, 44 (N.Y. App.
Div. 2021). Because the facts giving rise to the unjust enrichment claim here are the same facts
giving rise to Plaintiff Ross’ claims under the New York General Business Law and for fraud, her
unjust enrichment claim is duplicative and must be dismissed. See Barton v. Pret A Manger (USA)
Ltd., 535 F. Supp. 3d 225, 249 (S.D.N.Y. 2021) (noting that “courts in the Second Circuit have
consistently held that unjust enrichment claims are duplicative of General Business Law claims”).
Conversion
Defendants challenge Plaintiff Zakheim’s conversion claim on the merits, but I conclude

that he has sufficiently pleaded a claim for conversion under Pennsylvania law.5
In Pennsylvania, the tort of conversion involves “the deprivation of another’s right of
property in, or use or possession of, a chattel, or other interference therewith, without the owner’s
consent and without lawful justification.” Underhill Coal Mining Co. v. Hixon, 652 A.2d 343, 345
(Pa. 1994) (citation omitted). “The attempt to exercise control over another’s property must be
intentional, but conversion does not rest on proof of specific intent to commit a wrong.”
McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 659 n.3 (Pa. Super. Ct. 2000) (quoting

5 For Plaintiff Ross’ conversion claim under New York law, Defendants rely solely on the voluntary payment doctrine
to justify dismissal. Having previously concluded that this doctrine does not bar Ross’ claims, I will allow Ross’
conversion claim under New York law to proceed, as well.

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Underhill, 652 A.2d at 345); see also Bank of Landisburg v. Burruss, 524 A.2d 896, 899 (Pa.
Super. Ct. 1987) (noting that “there is no inconsistency between finding that a defendant acted in
good faith” and in finding that a defendant committed the tort of conversion). And while

conversion often arises in situations affecting more tangible personal property, money “may be the
subject of conversion,” so long as it is identifiable. McKeeman, 751 A.2d at 659 n.3 (Pa. Super.
Ct. 2000) (quoting Shonberger v. Oswell, 530 A.2d 112, 114 (Pa. Super. Ct. 1987)); see also
Pioneer Com. Funding Corp. v. Am. Fin. Mortg. Corp., 855 A.2d 818, 827 n.21 (Pa. 2004).
Defendants claim that Plaintiff Zakheim cannot state a claim for conversion, because he
“owed Defendants for the efforts they undertook” to provide him a pre-arranged ride, and that
conversion cannot be alleged where they simply accepted “compensation that Plaintiff owed
them.” ECF 22-1 at 13-14. But as pled in the Amended Complaint, Zakheim did not ask
Defendants to supply any services. He therefore had no reason to believe that Defendants would

be providing him a service when he asked the hotel clerk to call him a taxi. Am. Comp. at 1. It
follows that he had no reason to expect a service fee for use of Defendants’ services to appear on
his taxi receipt – particularly a fee disclosed only after he swiped his payment card.
Moreover, the facts in the Amended Complaint firmly establish that Zakheim did not give
Defendants consent to charge his payment card the disputed fee, but that Defendants charged the
fee anyway. “A deliberate taking of another’s personal property without consent is the strongest
and clearest case of conversion.” Cenna v. United States, 402 F.2d 168, 170 (3d Cir. 1968)
(applying Pennsylvania law). Zakheim’s conversion claim therefore survives dismissal.
Fraud
Defendants do not present any argument as to why the common-law fraud claims must be

dismissed on the merits, beyond their previously addressed arguments about Plaintiffs’ failure to

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invoke the law of a specific jurisdiction and regarding the voluntary payment doctrine. Having
already discussed these arguments, I will deny the motion to dismiss as it pertains to common-law
claims of fraud.

Declaratory Judgment
Finally, Defendants move to dismiss Plaintiffs’ request for declaratory relief. In their
Amended Complaint, Plaintiffs’ final count seeks a declaratory judgment stating that the disputed
service fee was not disclosed, that Plaintiffs did not consent to the fee and were not given an
opportunity to reject the service fee, that Defendants were not permitted to charge the fee, and that
Defendants are not entitled to retain the fees. See Am. Compl. at 30. But declaratory judgment
“cannot be obtained for alleged past wrongs.” Smith v. RB Distribution, Inc., 515 F. Supp. 3d 311,
321 (E.D. Pa. 2021) (McHugh, J.); see also CMR D.N. Corp. v. City of Philadelphia, 703 F.3d
612, 628 (3d Cir. 2013) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995))
(emphasizing that the “purpose of a declaratory judgment is to ‘declare the rights of litigants,’”

and the remedy is “by definition prospective in nature”). Given that Plaintiffs’ request for
declaratory relief seeks to adjudicate Defendants’ prior conduct, this count must be dismissed.
IV. Conclusion
For the reasons set forth above, Defendants’ Motion will be granted in part and denied in
part. An appropriate order follows.
/s/ Gerald Austin McHugh
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10405467. Public record. Not legal advice.