Quantum Supply B.V. v. Mercury Air Cargo, Inc.

Filing 25

ORDER ON MOTION TO DISMISS Re: DE# 11 Defendant's MOTION to Dismiss is GRANTED. Count II of Plaintiffs Amended Complaint, DE# 10 , is DISMISSED WITH LEAVE TO AMEND. By no later than April 5, 2021, Plaintiff may file a second amended complaint that cures the deficiencies to Count II Amended Complaint due by 4/5/2021. Signed by Judge Beth Bloom on 3/24/2021. See attached document for full details. (ebz) Modified text on 3/24/2021 (ebz).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 20-cv-25223-BLOOM/Otazo-Reyes
QUANTUM SUPPLY B.V.,
a Dutch limited liability company,
Plaintiff,
v.
MERCURY AIR CARGO INC.,
a California Corporation,
Defendant.
_______________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Mercury Air Cargo Inc.’s
(“Defendant”) Motion to Dismiss Count II of Plaintiff’s Corrected Amended Complaint, ECF No.
[11] (“Motion”). Plaintiff Quantum Supply B.V. (“Plaintiff”) filed a Response in Opposition, ECF
No. [23] (“Response”), to which Defendant replied, ECF No. [24] (“Reply”). The Court has
carefully reviewed the Motion, all supporting and opposing submissions, the record in this case,
and the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion
is granted with leave to amend.
I. BACKGROUND
On September 18, 2020, Plaintiff initiated this breach of contract and negligence action in
the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. ECF
No. [1-2] at 4-10. On December 23, 2020, Defendant removed this action to federal court on the
basis of diversity jurisdiction. ECF No. [1]. On January 18, 2021, Plaintiff filed a Corrected

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Case No. 20-cv-25223-BLOOM/Otazo-Reyes
Amended Complaint, which asserted two counts: Count I – Breach of Contract and Count
II – Unjust Enrichment (pled in the alternative). ECF No. [10] (“Amended Complaint”).
The Amended Complaint alleges that in June 2019, Plaintiff contracted with Defendant to
transfer cargo by air from the Netherlands to Venezuela, with stopping points in New York City
and Miami. ECF No. [10] ¶¶ 1, 12.1 The parties dispute whether the cargo was damaged beyond
repair while in transit to Miami or was provided in good condition. Ultimately, however, the
Amended Complaint alleges that the cargo needed to be replaced and the shipping transaction
repeated. Id. Plaintiff alleges that Defendant abandoned the damaged cargo, thus forcing it to store
the cargo in a warehouse in Miami. Id. ¶¶ 27-28. The Amended Complaint further alleges that
Defendant has willfully failed to fulfill its contractual obligations by failing to deliver the cargo in
good order and that Plaintiff has accordingly been damaged by Defendant’s negligence and breach.
Id. ¶¶ 29-30.
Relevant to the instant Motion, in Count II of the Amended Complaint, Plaintiff alleges
that Defendant was unjustly enriched by its failure to fully provide the agreed cargo services
because Plaintiff provided a payment for cargo services and the transaction was not completed. Id.
¶¶ 37-41. Defendant now moves to dismiss Count II, arguing that Plaintiff cannot plead a cause of
action for unjust enrichment when an express contract exists and neither party contests its
existence. ECF No. [11] at 2-3.
II. LEGAL STANDARD
Rule 8 of the Federal Rules requires a pleading to contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a
complaint “does not need detailed factual allegations,” it must provide “more than labels and

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A copy of the contractual agreement between the parties is attached to the Amended Complaint. See ECF
No. [10-3] (“Air Waybill”).

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conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on
“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. These elements are required to survive a motion
brought under Rule 12(b)(6), which requests dismissal for “failure to state a claim upon which
relief can be granted.”
As a general rule, when reviewing a motion under Rule 12(b)(6), a court must accept the
plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor
of the plaintiff. See Miccosukee Tribe of Indians of Fla. V. S. Everglades Restoration Alliance, 304
F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.
Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this principle does not apply to legal conclusions,
and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff’s Office,
449 F.3d 1342, 1252 (11th Cir. 2006). A court considering a Rule 12(b) motion is generally limited
to the facts contained in the complaint and attached exhibits, including documents referred to in
the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959 (11th Cir. 2009); Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005)
(“[A] document outside the four corners of the complaint may still be considered if it is central to
the plaintiff’s claims and is undisputed in terms of authenticity.” (citing Horsley v. Feldt, 304 F.3d
1125 (11th Cir. 200))).

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“On a Rule 12(b)(6) motion to dismiss, ‘[t]he moving party bears the burden to show that
the complaint should be dismissed.’” Sprint Sols., Inc. v. Fils-Amie, 44 F. Supp. 3d 1224, 1228
(S.D. Fla. 2014) (quoting Mendez-Arriola v. White Wilson Med. Ctr. PA, No. 09-495, 2010 WL
3385356, at *3 (N.D. Fla. Aug. 25, 2010)). “The movant must support its arguments for dismissal
with citations to legal authority.” Id. (citing S.D. Fla. L.R. 7.1(a)(1)). “Where a defendant seeking
dismissal of a complaint under Rule 12(b)(6) does not provide legal authority in support of its
arguments, it has failed to satisfy its burden of establishing its entitlement to dismissal.” Id. (citing
Superior Energy Servs., LLC v. Boconco, Inc., No. CA 09-0321-KD-C, 2010 WL 1267173, at *56 (S.D. Ala. Mar. 29, 2010); United States v. Vernon, 108 F.R.D. 741, 742 (S.D. Fla. 1986)).
III. DISCUSSION
In the instant Motion, Defendant’s main argument is that Plaintiff’s unjust enrichment
claim is unavailable as a matter of law because an express contract between the parties exists. ECF
No. [11] at 3-4 (citing Zarrella v. Pac. Life Ins. Co., 755 F. Supp. 2d 1218 (S.D. Fla. 2010)). In its
Response, however, Plaintiff argues that, even when an express contract exists, a claim for unjust
enrichment can be a proper cause of action where the damages sought fall outside the scope of the
contract and the damages awarded from the breach of contract would be inadequate in light of the
total damage incurred. ECF No. [23] at 3 (citing AutoNation, Inc. v. GAINSystems, Inc., No. 0861632-CIV, 2009 WL 1941279, at *4 (S.D. Fla. July 7, 2009)). Specifically, Plaintiff contends
that its unjust enrichment count is appropriate in this case because “[t]he transfer and storage costs
associated with [Defendant] abandoning the damaged goods and [Plaintiff] holding these goods at
a local Miami warehouse . . . may fall outside of the contract at issue.” Id. at 2. In its Reply,
Defendant re-asserts that unjust enrichment is not an available remedy where a valid contract
exists. ECF No. [24] at 1.

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The general rule in Florida is that a plaintiff cannot pursue an equitable remedy, such as a
claim for unjust enrichment, “where an express contract exists concerning the same subject
matter.” Kovtan v. Frederiksen, 449 So. 2d 1, 1 (Fla. 2d DCA 1984). Therefore, an “unjust
enrichment claim is precluded by the existence of an express contract between the parties
concerning the same subject matter.” Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So. 2d
696, 697 (Fla. 1st DCA 2008); see also 1021018 Alberta Ltd. v. Netpaying, Inc., No. 8:10-cv-568T-27MAP, 2011 WL 1103635, at *5 (M.D. Fla. Mar. 24, 2011) (Florida courts have held that “a
plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists
concerning the same subject matter.”); Zarrella, 755 F. Supp. 2d at 1227. However, a party may
plead a cause of action for unjust enrichment in the alternative to a breach of contract count. See
ThunderWave, Inc. v. Carnival Corp., 954 F. Supp. 1562, 1566 (S.D. Fla. 1997). One instance
where a party may properly assert an alternative claim for unjust enrichment where a valid contract
otherwise exists is “when the quasi-contractual claims concern matters which are outside the scope
of the contract.” AutoNation, Inc., 2009 WL 1941279, at *4 (citing In re Managed Care Litig., 135
F. Supp. 2d 1253, 1269 (S.D. Fla. 2001) (recognizing the legitimacy of a quasi-contractual claim
despite the existence of a contract because “there may be matters of dispute which are outside the
scope of the contracts”)).
Here, Plaintiff is generally correct that the existence of a valid contract, on its own, does
not bar an unjust enrichment claim where the damages alleged fall outside the scope of the contract.
However, upon a review of the allegations in the Amended Complaint, the Court finds Count II to
be insufficiently pled to the extent that Plaintiff attempts to assert an alternative unjust enrichment
count for damages that fall outside the scope of the parties’ contractual agreement. Indeed,
although Plaintiff’s Response to Defendant’s Motion seeks to clarify that the unjust enrichment

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count in the Amended Complaint seeks to assert a claim for any damages falling beyond the scope
of the parties’ contractual agreement, the Court notes that the Amended Complaint lacks any
allegations that would support this position. See Hill-Brown v. LaHood, No. 1:09-cv-848-TCBECS, 2010 WL 11506075, at *5 n.5 (N.D. Ga. Nov. 2, 2010) (noting that a “response to a motion
to dismiss does not amend the complaint” (citations omitted)). Absent any allegations regarding
damages falling outside of the scope of the contractual agreement, the Court concludes that
Defendant’s Motion is due to be granted. However, to the extent that Plaintiff can include
additional allegations in its unjust enrichment claim clarifying its position, the Court finds that it
should be granted an opportunity to do so. Therefore, Plaintiff is granted leave to amend Count II
to cure the deficiencies noted above.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion, ECF No.
[11], is GRANTED. Count II of Plaintiff’s Amended Complaint, ECF No. [10], is DISMISSED
WITH LEAVE TO AMEND. By no later than April 5, 2021, Plaintiff may file a second
amended complaint that cures the deficiencies to Count II discussed above.
DONE AND ORDERED in Chambers at Miami, Florida, on March 24, 2021.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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