Donner v. Florida Bracing Centers, Inc. et al

Filing 26

ORDER denying 11 Motion to Dismiss Defendants' Motion to Dismiss Counts V & VI. Defendants shall file their Answer and Affirmative Defenses to Counts V & VI by no later than June 28, 2013. Signed by Judge James I. Cohn on 6/20/2013. (ams)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-60848-CIV-COHN/SELTZER
JEFFREY DONNER,
Plaintiff,
v.
FLORIDA BRACING CENTER, INC.,
and JAMES MATTERN,
Defendants.
_________________________________/
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS COUNTS V & VI
THIS CAUSE is before the Court upon Defendants’ Motion to Dismiss Counts V
& VI of Plaintiff’s Complaint [DE 11]. The Court has considered the motion, Plaintiff’s
response [DE 19], Defendants’ reply [DE 24], the record in this case, and is otherwise
fully advised in the premises.
I. BACKGROUND
According to the Complaint [DE 1], Plaintiff Jeffrey Donner worked for
Defendants Florida Bracing Center, Inc. (“FBC”), and James Mattern (together,
“Defendants”) from May 2011 through November 2012 as a marketing representative.
DE 1 ¶ 20. Plaintiff alleges that he entered into a verbal agreement with Defendants to
market and advertise braces sold by Defendants, and to put potential customers in
contact with Defendants so that Defendants could sell braces to them. Id. ¶ 29. Under
the terms of the agreement, Defendants allegedly agreed to pay Plaintiff a 32%
commission on all braces sold to customers that he brought in. Id. ¶ 30. Plaintiff claims
that Defendants breached the terms of the agreement and failed to pay Plaintiff

$800,000 in commissions. Id. ¶ 32. Plaintiff further alleges that he complained to
Defendants throughout his employment about not being paid his commissions. He
claims that he repeated his complaint in November 2012 and, as a result, Defendants
fired him. Id. ¶ 22.
On April 12, 2013, Plaintiff filed suit against Defendants, bringing the following
six claims: (i) recovery of unpaid wages under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201, et seq., against FBC; (ii) wage and hour violations under the FLSA, 29
U.S.C. § 201, et seq., against Mattern; (iii) retaliatory discharge in violation of 29 U.S.C.
§ 215(a)(3), against both Defendants; (iv) breach of a verbal agreement, against both
Defendants; (v) quantum meruit, against both Defendants; and (vi) unjust enrichment,
against both Defendants. DE 1. In the instant motion, Defendants seek to dismiss
Counts V and VI for failure to state a claim. In the alternative, Defendants assert that
Count V should be dismissed as duplicative of Count VI. Plaintiff opposes the motion.
II. MOTION TO DISMISS STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss lies for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
order to state a claim, Federal Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 545 (2007) (citations omitted). “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) (quoting
Twombly, 550 U.S. at 570).
At this stage in the litigation, the Court must consider the factual allegations in
the complaint as true, and accept all reasonable inferences therefrom. Jackson v.
Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). Nevertheless, the Court
may grant a motion to dismiss when, “on the basis of a dispositive issue of law, no
construction of the factual allegations will support the cause of action.” Marshall Cnty.
Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
III. ANALYSIS
In the present motion, Defendants make two arguments for dismissal. First, they
contend that Counts V and VI, as claims in quantum meruit and unjust enrichment, are
barred by the existence of an express contract. Second, and in the alternative, they
assert that Count V should be dismissed because it is redundant with Count VI. The
Court will address both of these arguments in turn.
A. The Parties Do Not Agree that an Express Contract Exists
First, Defendants assert that Plaintiff’s claims for quantum meruit and unjust
enrichment fail because the parties agree that an express contract exists. Florida law
provides that, where the parties do not dispute the existence of an express contract, a
plaintiff may not bring alternative equitable claims for relief. See Raven v. Lincoln v.
Nat’l Life Ins. Co., No. 07-23137-CIV-HUCK/BANDSTRA, 2011 U.S. Dist. LEXIS

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131739, at *23-25 (S.D. Fla. Nov. 15, 2011) (citing D.H.G. Props., LLC v. The Ginn
Cos., LLC, No. 3:09-cv-J-34JRK, 2010 U.S. Dist. LEXIS 140208, at *57-58 (M.D. Fla.
Sept. 28, 2010)). However, until the existence of a contract is proven, a motion to
dismiss a claim for quantum meruit or unjust enrichment on this basis is premature.
Williams v. Bear Stearns & Co., 725 So. 2d 397, 400 (Fla. 5th DCA 1998). Here,
Defendants claim that “[i]t is undisputed that an express agreement exists in the subject
case.” DE 11 at 4. The Court disagrees. In the Complaint, Plaintiff alleges that he had
a verbal agreement with Defendants. In their Answer and Affirmative Defenses to
Counts I, II, III, and IV of Plaintiff’s Complaint, and Demand for Jury Trial [DE 12]
(“Answer”), Defendants “deny that a verbal agreement existed between Plaintiff and
Defendants.” DE 12 ¶ 26. Thus, the existence of the verbal agreement is plainly in
dispute.
Defendants respond that, in their Answer, they were merely denying that the
agreement was verbal, rather than denying the existence of an agreement at all.
Defendants argue that they never denied the existence of an express contract, and in
fact they concede that the parties had signed a written employment agreement. This
argument ignores the contents of Plaintiff’s Complaint. Plaintiff does not allege the
existence of a written agreement, or of any other contractual agreements with
Defendants. Plaintiff only alleges the existence of a verbal agreement, which
Defendants deny. Moreover, Defendants never assert that any other type of express
agreement exists between the parties. Therefore, the existence of the agreement is still
in dispute, and Counts V and VI may not be dismissed on these grounds.

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B. Count V is Not Duplicative of Count VI
Second, Defendants contend that a claim for quantum meruit is necessarily
redundant with a claim for unjust enrichment. Therefore, Defendants argue, Count V is
subject to dismissal as duplicative of Count VI. This argument is unavailing, as the two
theories of relief are distinguishable. A claim for unjust enrichment is based on a
contract implied in law, also known as a ‘quasi-contract.’ 14th & Heinberg, LLC v.
Terhaar & Cronley Gen. Contrs., Inc., 43 So. 3d 877, 880 (Fla. 1st DCA 2010) (citing
Tooltrend, Inc. v. CMT Utensili, SRL, 198 F.3d 802, 805 (11th Cir. 1999)). A contract
implied in law is not really a contract, in the sense that the parties never indicated, by
word or deed, their intent to enter a contractual relationship. Tooltrend, 198 F.3d at
805. Rather, a quasi-contract is found “where it is deemed unjust for one party to have
received a benefit without having to pay compensation for it.” Id. By contrast, a claim
for quantum meruit may be based on contracts implied in law or contracts implied in
fact. See Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So. 2d
383, 387 (Fla. 4th DCA 1997); see also Tooltrend, 198 F.3d at 806 (noting that “the
remedy of quantum meruit derives from contracts ‘implied in fact.’”). In response to the
instant motion, Plaintiff asserts that his quantum meruit claim is based on a contract
implied in fact. A contract implied in fact is one that is “based on a tacit promise, one
that is inferred in whole or in part from the parties’ conduct, not solely from their words.”
Id. at 385 (citing 17 Am. Jur. 2d Contracts § 3 (1964)). Such a contract may be formed
“where services are rendered by one person for another without his expressed request,
but with his knowledge, and under circumstances fairly raising the presumption that the
parties understood and intended the compensation was to be paid.” Id. at 386 (internal
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quotations and citations omitted). A claim for quantum meruit for breach of a contract
implied in fact may be pled alternatively with a claim for unjust enrichment. Tooltrend,
198 F.3d at 806 n.5. That is precisely what Plaintiff has done in this case. Plaintiff’s
claim for quantum meruit in Count V alleges breach of a contract implied in fact, stating
as follows:
36.

Plaintiff has provided services to the Defendants.

37.

The Defendants assented to and received a benefit in the form of
services from the Plaintiff under circumstances where, in the
ordinary common events, a reasonable person receiving such
benefit normally would expect to pay for it.

DE 1 ¶¶ 36-37. In contrast, his claim for unjust enrichment is based in quasi-contract,
alleging that:
39.

Plaintiff has conferred a benefit on the Defendants, who have
knowledge thereof.

40.

The Defendants have voluntarily accepted and retained the
conferred benefit.

41.

The circumstances are such that it would be inequitable for the
Defendants to retain the benefit without paying the value thereof to
the Plaintiff.

Id. ¶¶ 39-41.
In response, Defendants cite to Merle Wood & Assocs., Inc. v. Trinity Yachts,
LLC, 857 F. Supp. 2d 1294, 1305-06 (S.D. Fla. 2012), wherein the court “treat[ed] [the
plaintiff’s] quantum meruit and unjust enrichment claims together under the cause of
action encompassed by a contracted implied in law.” In doing so, the court noted that,
“[t]o describe the cause of action encompassed by a contract implied in law, ‘Florida
courts have synonymously used a number of different terms — ‘quasi-contract,’ ‘unjust
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enrichment,’ ‘restitution,’ ‘constructive contract,’ and ‘quantum meruit.’” 857 F. Supp. 2d
at 1306 (quoting Commerce P’ship 8098, 695 So. 2d at 386). However, as noted
above, a claim for quantum meruit may be based on either a contract implied in law or
in fact. In Merle, the plaintiff’s quantum meruit claim was based on a contract implied in
law, and thus the quantum meruit and unjust enrichment claims were properly analyzed
under the same rubric. See id. at 1306-07. That is not the case in the present matter.
Accordingly, because Counts V and VI allege distinct claims for relief, the Court finds
that they are not duplicative, and Defendants’ motion will be denied.
IV. CONCLUSION
Thus, for the foregoing reasons, it is hereby
ORDERED AND ADJUDGED Defendants’ Motion to Dismiss Counts V
& VI of Plaintiff’s Complaint [DE 11] is DENIED. It is further
ORDERED AND ADJUDGED that Defendants shall file their Answer and
Affirmative Defenses to Counts V and VI by no later than June 28, 2013.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 20th day of June, 2013.

Copies provided to:
Counsel of record via CM/ECF.

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