DUKE ENERGY INDIANA, INC. v. COMCAST OF INDIANAPOLIS, LLC

Filing 77

ORDER adopting in part 56 Magistrate Judge's Report and Recommendations therefore granting in part and denying in part Defendant's 33 Motion to Dismiss for Failure to State a Claim. Signed by Judge Richard L. Young on 9/21/2015. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DUKE ENERGY INDIANA, INC.

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Plaintiff,
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vs.
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COMCAST OF INDIANAPOLIS, LP,
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Defendant.
______________________________________ )
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COMCAST OF INDIANAPOLIS, LP,
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Third Party Plaintiff,
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vs.
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QC COMMUNICATIONS, INC.,
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Third Party Defendant.

1:14-cv-02041-RLY-MJD

ENTRY ON PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION OF JULY 31, 2015
I. Introduction
Plaintiff, Duke Energy Indiana, Inc., filed a three-count Amended Complaint
against Defendant, Comcast of Indianapolis, LP, to recover for uncompensated work
performed on Defendant’s attachments to Plaintiff’s utility poles. Plaintiff alleges
Defendant failed to correct several safety violations attributable to Defendant, despite
having an express duty to do so pursuant to the parties’ agreement, the Master License
Agreement (the “Pole Attachment Agreement”). Plaintiff consequently performed the

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necessary repairs, as the Pole Attachment Agreement purportedly allows, and now seeks
reimbursement from Defendant for that work. To this end, Plaintiff sought recovery
under three theories: (1) breach of contract, (2) unjust enrichment, and (3) quantum
meruit. Defendant timely filed a motion to dismiss Count 2 and Count 3 pursuant to Rule
12(b)(6), and to dismiss or compel a more definitive statement for Count 1, pursuant to
Rules 12(b)(6), (e). (Filing No. 33). Magistrate Judge Dinsmore issued a Report and
Recommendation, recommending that this court grant the motion with regard to Count 2
and Count 3, and deny the motion with regard to Count 1. (Filing No. 56). This matter
now comes before the court on Plaintiff’s Objection to the Magistrate Judge’s Report and
Recommendation on Defendant’s Motion to Dismiss. (Filing No. 57). For the reasons
set forth below, the court SUSTAINS IN PART and OVERRULES IN PART
Plaintiff’s Objection.
II. Legal Standard
Rule 72(b) expressly authorizes a litigant to object to a magistrate judge’s report
and recommendation on a dispositive motion within fourteen days of service. Fed. R.
Civ. P. 72(b). The court reviews de novo any part of the report and recommendation to
which a party has properly objected. Id. See 28 U.S.C. § 636(b)(1)(C). De novo review
requires the court to re-examine the matter with a fresh set of eyes and make “an
independent judgment of the issues.” Moody v. Amoco Oil Co., 734 F.2d 1200, 1210 (7th
Cir. 1984). “If no objection or only partial objection is made, the district court judge
reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d

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734, 739 (7th Cir. 1999). See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(b) advisory
committee’s notes.
Rule 12(b)(6) authorizes the dismissal of cases for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to survive a 12(b)(6)
motion, a complaint must “state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). In determining the sufficiency of the complaint, the court assumes
well-pleaded factual allegations to be true and draws all reasonable inferences in the light
most favorable to the plaintiff. Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir.
2007) (citing Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006)).
III. Discussion
In the Report and Recommendation, Magistrate Judge Dinsmore denied
Defendant’s Motion for a More Definitive Statement or to Dismiss Count 1 of the
Amended Complaint. Defendant did not object to this portion of the Report and
Recommendation. After reviewing the Report and Recommendation, the parties’
briefing, and the relevant case law, this court is satisfied that Magistrate Judge Dinsmore
did not commit clear error in denying that portion of Defendant’s motion. Therefore, the
court ADOPTS that portion of the Report and Recommendation.
In Count 2 and Count 3 of the Amended Complaint, Plaintiff seeks relief pursuant
to theories of unjust enrichment and quantum meruit, respectively. Defendant argues that
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Plaintiff cannot pursue these two claims because Plaintiff is seeking to recover the same
amount for the same services it is attempting to recover under its breach of contract
claim. Defendant contends that these alternative theories are only cognizable when there
is no governing contract, and, in this case, both parties agree that an enforceable contract
exists. Defendant further argues that unjust enrichment and quantum meruit are one in
the same under Indiana law. Plaintiff retorts that the Federal Rules of Civil Procedure
allow it to plead alternative theories. Moreover, per the language of the Amended
Complaint, Counts 2 and 3 will only be invoked if the court finds that the Pole
Attachment Agreement cannot afford Plaintiff relief. Therefore, Plaintiff emphasizes,
there is no threat of double recovery.
Unjust enrichment and quantum meruit are equitable, quasi-contract theories, but
distinct elements for each are difficult to discern under Indiana law. Indeed, the Indiana
Supreme Court defined quantum meruit as “an equitable doctrine that prevents unjust
enrichment by permitting one to recover the ‘value of work performed or material
furnished if used’ by another and if valuable.” Galanis v. Lyons & Truitt, 715 N.E.2d
858, 861 (Ind. 1999) (quoting 17A C.J.S. Contracts § 440 at 553 (1963)). The fact that
the Galanis Court used the term unjust enrichment in the definition of quantum meruit
suggests that these claims are one in the same. This conclusion is reinforced by the fact
that Indiana courts “have used the phrases quasi-contract, contract implied-in-law,
constructive contract, and quantum meruit synonymously.” Indianapolis v. Twin Lakes
Enterprises, Inc., 568 N.E.2d 1073, 1078 (Ind. Ct. App. 1991). See Reed v. Reid, 980
N.E.2d 277, 296 (Ind. 2012) (writing that unjust enrichment is “[a]lso referred to as
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quantum meruit or quasi-contract”); Woodruff v. Ind. Family & Soc. Servs. Admin., 964
N.E.2d 784, 791 (Ind. 2012) (stating that quantum meruit is “[a]lso called unjust
enrichment or quasi-contract”); Peoples State Bank v. Benton Twp. of Monroe Cnty., 28
N.E.3d 317, 325 (Ind. Ct. App. 2015) (noting that quantum meruit is “also referred to as
unjust enrichment”). Whereas Count 2 and Count 3 are the same under Indiana law, at
least one must be dismissed with prejudice.
Defendant maintains that both of the quasi-contract claims must be dismissed
because the parties stipulate that a valid contract (the Pole Attachment Agreement)
governs this dispute. The court agrees. The U.S. District Court for the Northern District
of Indiana recently examined the same pleading strategy used by Plaintiff and held that
this type of pleading in the alternative is not permitted under the Federal Rules of Civil
Procedure. See CoMentis, Inc. v. Purdue Research Found., 765 F. Supp. 2d 1092, 1101
(N.D. Ind. 2011). The CoMentis court explained, “A party cannot pursue equitable relief
simply because its contract claim fails, without alternatively alleging that there was either
no contract on point or the contract at issue was unenforceable.” Id. at 1103. As
Defendant rightly notes, Plaintiff does not allege that the Pole Attachment Agreement is
unenforceable or does not control. Plaintiff attempts to seize upon Defendant’s
disagreement as to the applicable terms in the Pole Attachment Agreement, but
Defendant’s arguments go to the proper interpretation of the contract, not to whether a
contract exists in the first place. Paraphrasing the CoMentis court, “[Plaintiff] may not
seek unjust enrichment just in case the contract does not afford it the relief it seeks.” Id.
(emphasis original). Whereas the parties stipulate that there is a valid, enforceable
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contract that governs this dispute, both of Plaintiff’s equitable claims must be dismissed.
See Cromeens, Holloman, Siber, Inc. v. AB Volvo, 349 F.3d 376, 397 (7th Cir. 2003)
(“[A] plaintiff may not pursue a quasi-contractual claim where there is an enforceable,
express contract between the parties.”); Kincaid v. Lazar, 405 N.E.2d 615, 619 (Ind. Ct.
App. 1980) (“The existence of a valid express contract for services, however, precludes
implication of a contract covering the same subject matter.”). However, because the
court may ultimately determine that the Pole Attachment Agreement is not a valid
contract due to lack of mutual assent, lack of consideration, illegality, etc., dismissal with
prejudice of both claims is inappropriate. One of Plaintiff’s equitable claims shall be
dismissed without prejudice to allow for re-filing, should that need arise.
IV. Conclusion
For the foregoing reasons, the court SUSTAINS IN PART and OVERRULES
IN PART Plaintiff’s Objection to Magistrate Judge Dinsmore’s Report and
Recommendation. (Filing No. 57). With regard to Count 2 (Unjust Enrichment),
Plaintiff’s Objection is SUSTAINED IN PART and OVERRULED IN PART.
Therefore, Defendant’s Motion to Dismiss Count 2 is GRANTED, and it shall be
DISMISSED WITHOUT PREJUDICE. With regard to Count 3 (Quantum Meruit),
Plaintiff’s Objection is OVERRULLED. Therefore, Defendant’s Motion to Dismiss
Count 3 is GRANTED, and it shall be DISMISSED WITH PREJUDICE. Magistrate

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Judge Dinsmore’s recommendation regarding Count 1 is ADOPTED. Therefore,
Defendant’s Motion to Dismiss or for a More Definitive Statement on Count 1 is
DENIED.

SO ORDERED this 21st day of September 2015.

__________________________________
_________________________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

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