Cavi v. Evolving Systems Inc. et al
MEMORANDUM ORDER: The Report and Recommendations (D.I. 37 ) is ADOPTED except as to sections G, H, and I; The motion to dismiss (D.I. 28 ) is GRANTED IN PART AND DENIED IN PART; All counts against Defendant Evolving Systems, Inc. are DISMISSED; and Count IV is DISMISSED. Signed by Judge Richard G. Andrews on 3/27/2017. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 15-1211-RGA
EVOLVING SYSTEMS, INC., et al.,
Plaintiff filed an amended complaint against four defendants. (D.I. 24). Defendants
responded with a motion to dismiss. (D.I. 28). The motion has been briefed. (D.I. 29, 31, 34). I
referred it to the Magistrate Judge. (D.I. 36). She issued a lengthy Report and
Recommendations. (D.I. 37). Plaintiff filed objections limited to one issue. (D.I. 39).
Defendants responded. (D.I. 40).
The Magistrate Judge recommended dismissal of Plaintiffs claims for quasi-contractual
relief, that is, theories based on quantum meruit, promissory estoppel, and unjust enrichment,
because Plaintiff also pled an express contract. (D.I. 37 at 21-23). Plaintiff argues that he can
plead in the alternative because the enforceability of the contract is in doubt. Defendants respond
that they did not seek to dismiss the breach of contract claim and that they are not contesting the
enforceability of the contract. Defendants also cite extensive Delaware case law for the
proposition that, "Courts generally dismiss claims for quantum meruit on the pleadings when it is
clear from the face of the complaint that there exists an express contract that controls." (Id. at 6
(quoting Boulden v. Albiorix, Inc., 2013 WL 396254, *14 (Del. Ch. Jan. 31, 2013)).
Usually, when a plaintiff pleads alternative theories, it is because it wants to avoid the
situation where the defendant is successful in defeating the first theory, and the plaintiff then has
a fallback theory. Here, Plaintiff has pled an express contract, and Defendants are conceding the
express contract controls. "Here, there is no dispute that there was an express contract between
That places Plaintiff in the unusual position of suggesting that Plaintiff might
argue that the contract is unenforceable. Plaintiff makes this suggestion based on the fact that
Plaintiff is also pursuing a fraudulent inducement claim. If Plaintiff is successful on the
fraudulent inducement claim, it might be that the breach of contract claim makes no sense. It
further might be that a separate quasi-contract claim might add some remedy not included within
the remedy for fraudulent inducement.
Were this a case filed in state court, I am not convinced that the state court would dismiss
the quasi-contract claims. Under Delaware law, "it is permissible for a party to seek
quasi-contractual relief in the alternative to its contract claims." Hiller & Arban, LLC v.
Reserves Mgmt., LLC, 2016 WL 3678544, at *3 (Del. Super. Ct. July 1, 2016). Delaware state
courts generally allow such alternative pleading "when there is doubt surrounding the
enforceability or the existence of the contract." Albert v. Alex. Brown Mgmt. Servs., Inc., 2005
WL 2130607, at *8 (Del. Ch. Aug. 26, 2005). Regardless, I am not sure that I am bound by state
court practice. "[A] federal court hearing a diversity of citizenship action [that is, a claim based
on state law] should not be bound by a state law requiring that an election be made at the
pleading stage, because a local practice of this type might cripple the flexible pleading provisions
sanction by Rule 8(e)(2) [now, Rule 8(d)(3)] and defeat the overriding federal policy of having
From context, I believe Defendants meant "parties," although the pleading says,
"theories," which I do not see as making any sense. Defendants should advise ifl have
misunderstood what they meant.
disputes determined on their merits." Wright & Miller, Federal Practice & Procedure, Civil 3d §
1283, p. 735. See Independent Enterprises Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d
1165, 1175 (3d Cir. 1997) (noting that the Rule "has been interpreted to mean that a court 'may
not construe [a plaintiffs] first claim as an admission against another alternative or inconsistent
I think Plaintiff can pursue a multitude of conflicting and possibly unnecessary claims.
Thus, while I am going to adopt the great bulk of the Report and Recommendations, I will not
adopt the objected-to portion.
H_ day of March 2017, IT IS HEREBY ORDERED that:
1. The Report and Recommendations (D.I. 37) is ADOPTED except as to sections G, H,
and I (id. at 21-23);
2. The motion to dismiss (D.I. 28) is GRANTED IN PART AND DENIED IN PART;
3. All counts against Defendant Evolving Systems, Inc. are DISMISSED; and
4. Count IV is DISMISSED.
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