Emergency Response Specialists Inc v. CSA Ocean Sciences Inc et al

Filing 20

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 4/23/15. (SAC )

FILED
2015 Apr-23 PM 02:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EMERGENCY RESPONSE
SPECIALISTS, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
CSA OCEAN SCIENCES, INC,
Defendant and
Counterclaim-Plaintiff,
and
NOBLE ENERGY INC.
Defendant.

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CIVIL ACTION NO.
2:14-cv-2214-WMA

MEMORANDUM OPINION
The

complaint

filed

by

plaintiff

Emergency

Response

Specialists, Inc. (“ERS”) contains five counts. (Doc. 1).

Counts

I, II, and III1 allege various breach of contract claims against
defendant CSA Ocean Sciences, Inc. (“CSA”) under a January 31, 2014
purchase order (“ERS/CSA Agreement”).2 (Doc 1 at 10-19). Count IV

1

ERS misnumbered this count as “Count II” rather than
“Count III.” (Doc. 1 at 16). As noted at the motion hearing held
on March 24, 2015, this court will properly refer to the
misnumbered “Count II” as “Count III.”
2

ERS states in its complaint that it attaches as Exhibit A
the “Purchase Order [] Attachment A, Attachment B and ERS’
estimate dated October 11th , 2013", which together form the
ERS/CSA Agreement, but no such exhibit is attached. (Doc. 1). ERS
attached to its brief in response to the motions to dismiss the
said purchase order (Doc. 16-1) and Noble also includes as an
exhibit to its present motion the said purchase order,
1

alleges misrepresentation and fraud by CSA. (Doc. 1 at 19-23).
Count V alleges unjust enrichment against both CSA and defendant
Noble Energy Inc. (“Noble”). (Doc. 1 at 23-24). Now before the
court are two motions to dismiss: a partial motion to dismiss by
CSA as to Counts IV and V (Doc. 7), and a motion to dismiss by
Noble as to Count V, the only claim aimed at it (Doc. 12).
For the reasons hereinafter stated, CSA’s partial motion to
dismiss will be denied as to Count IV and granted as to Count V;
Noble’s motion to dismiss will be granted.
Generally to survive a motion to dismiss, a “complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quotation omitted). However, where the
complaint alleges “fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” Am.
Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010)
(quoting Fed. R. Civ. P. 9(b)).
I.

Misrepresentation and fraud
Generally in Alabama, “[a] mere breach of [] contract is not

sufficient to support a charge of fraud.” McAdory v. Jones, 71 So.
2d 526, 528 (Ala. 1954). Yet, the distinction between the two “is

attachments, and cost estimate (Doc. 12-1).
2

all too often lost in Alabama . . . [resulting in] confusion3
surrounding the difference between a claim alleging breach of
contract and a claim alleging fraud.” Dickinson v. Land Developers
Constr.

Co.,

882

So.

2d

291,

303

(Ala.

2003)

(Houston,

J.,

concurring). “Regardless, it is clear that to assert a fraud claim
that stems from the same general facts as one's breach-of-contract
claim, the fraud claim must be based on representations independent
from the promises in the contract and must independently satisfy
the elements of fraud.” Hunt Petroleum Corp. v. State, 901 So. 2d
1, 10-11 (Ala. 2004) (Houston, J., concurring); see Stone v. Koch
Farms of Gadsden LLC, 2013 WL 121477, at *2-3 (N.D. Ala. Jan. 8,
2013) and Townson v. Koch Farms, LLC, 2014 WL 1618376, at *2 (N.D.
Ala. Apr. 22, 2014)(relying on Justice Houston’s concurrence to
conclude fraud claims must be sufficiently independent from a
breach of contract count to be separately cognizable).
At the motion to dismiss stage, under the heightened pleading
standard of

Rule

9(b),

the

Eleventh

3

Circuit

requires

that a

Compare Deupree v. Butner, 522 So. 2d 242, 244 (Ala. 1988)
("In Alabama, a single transaction can support an award of
damages for both breach of contract and fraud . . . [yet] a fraud
claim and a contract claim based on one set of facts may [not] go
to the jury . . . when fraud in the inception of the contract is
alleged.") with McAdory v. Jones,71 So. 2d 526, 528 (Ala. 1954)
(“When fraud is the basis upon which relief is sought against a
contract and the fraud is dependent upon a breach of the covenant
by the other party to the contract, it is usually necessary to
allege and prove that at the time the contract was made the
covenantor had no intention of complying with his obligation,
but that he entered into it at that time with the intention of
defrauding the other party to the contract.”).
3

plaintiff

allege

“(1)

misrepresentations

the

made;

precise
(2)

the

statements,
time,

documents,

place,

and

or

person

responsible for the statement; (3) the content and manner in which
these statements misled the Plaintiffs; and (4) what the defendants
gained by the alleged fraud.” Am. Dental Ass'n, 605 F.3d at 1291.
ERS alleges misrepresentation and fraud based “upon statements
and emails of CSA personnel, the work description within the
Agreement between CSA and ERS, and that CSA’s personnel would
conduct themselves and their operations in a safe, professional and
regulatory complaint manner . . .” (Doc. 1 at 20). Beyond the said
ERS/CSA

Agreement,

ERS

bases

its

fraud

claim

on

specific

representations independent of the agreement: a September 16, 2013
cost estimate request by CSA Vice President Robert Mulcahy for ERS
to conduct sampling of a brine pool at the Leviathan-2 well site
(Doc. 1 at 5), a November 22, 2013 advisement acknowledgement by
CSA Senior Scientist Dr. Christopher J. Kelly on project details
(Doc. 1 at 7-8), a January 14, 2014 email from Mulcahy telling ERS
“this is your official NTP (Note to Proceed)” (Doc. 1 at 8), and a
request from Kelly for “a NPTP on the cleaning of the water
samplers” (Doc. 1 at 8). In light of these specific allegations,
ERS states a cognizable fraud claim under Alabama law sufficiently
independent from its breach-of-contract claims and also states the
said claim with sufficient particularity to survive a motion to
dismiss. See Houston v. Bayer Healthcare Pharm., Inc., 2014 WL

4

1330906 (N.D. Ala. Mar. 28, 2014)(“Like the Iqbal standard, this is
not a hard-and-fast test, but can vary based on the nature of the
claim asserted.”) (citing Fed. R. Civ. Pro. 9(b)).
II.

Unjust enrichment
“It has long been recognized in Alabama that the existence of

an

express

contract

generally

excludes

an

implied

agreement

relative to the same subject matter.” Vardaman v. Florence City Bd.
of

Educ.,

544

So.

2d

962,

965

(Ala.

1989).

“Based

on

that

principle, where a plaintiff has brought claims sounding in both
express contract and quasi-contract as to the same subject matter,
Alabama courts have deemed the quasi-contract claim not to be
cognizable.” White v. Microsoft Corp., 454 F. Supp. 2d 1118, 1133
(S.D. Ala. 2006). While under the federal rules a plaintiff is
permitted to plead alternatively, “[i]t is not whether Plaintiff is
successful on a breach of contract claim that precludes [its]
unjust enrichment claim, it is the undisputed existence of a
contract.” Selby v. Goodman Mfg. Co., LP, 2014 WL 2740317, at *6
(N.D. Ala. June 17, 2014).
While ERS argues it is permitted to plead alternatively under
the federal rules (Doc. 16 at 10), it is undisputed by all the
parties that the ERS/CSA Agreement actually exists. In its own
complaint, ERS itself pleads the existence of an express agreement
(Doc. 1 at 9) and it attaches the agreement to its brief in
response to this motion to dismiss presently under consideration
5

(Doc. 16-1).
agreement,

Neither CSA or Noble denies the existence of this

and

both

defendants

rely

on

the

existence

of

the

agreement. (Doc. 7 at 17; Doc. 11 at 5; Doc. 12 at 4-5; Doc. 12-1).
Although Noble was not a party to the contract ERS’ only connection
with Noble was occasioned by its contract with CSA. Even if Noble
cannot rely on the existence of the contract, there is no basis in
the allegations that could create a right in ERS to claim that
Noble was unjustly enriched to its detriment. Therefore, ERS’
unjust enrichment claims against CSA and Noble are due to be
dismissed.
CONCLUSION
For the reasons detailed above, the court will by separate
order deny CSA’s partial motion to dismiss as to Count IV and grant
CSA’s motion as to Count IV; Noble’s motion to dismiss will be
granted.

DONE this 23nd day of April, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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