GET-ER-DONE DRILLING, INC. v. US CROSSING UNLIMITED, LLC et al

Filing 21

MEMORANDUM OPINION re 7 MOTION TO DISMISS Count VI Against Defendant US Crossings Unlimited, LLC filed by US CROSSING UNLIMITED, LLC. Signed by Magistrate Judge Lisa Pupo Lenihan on 5/11/2017. (clh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GET-ER-DONE DRILLING, INC., a
Pennsylvania Corporation,
Plaintiff,
v.
US CROSSING UNLIMITED, LLC, a
Delaware Limited Liability
Company, and MICHAEL LIND, an
adult individual,
Defendants.

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Civil Action No. 2:16-cv-1426
Magistrate Judge Lisa Pupo Lenihan

ECF No. 7

OPINION ON MOTION TO DISMISS COUNT VI
AGAINST DEFENDANT US CROSSINGS UNLIMITED, LLC
LENIHAN, Magistrate Judge
Currently pending before the Court is Defendant US Crossings1 Unlimited,
LLC’s Motion to Dismiss (ECF No. 7) the unjust enrichment claim brought against it in
Count VI of the Amended Complaint. For the reasons set forth below, the Court will
deny the motion to dismiss.
I.

RELEVANT FACTS
Beginning on or about November 5, 2014, the parties entered into a series of

verbal contracts regarding the provision of services by Plaintiff, Get-Er-Done Drilling,
Although the caption of the Amended Complaint refers to Defendant as “US Crossing
Unlimited, LLC” Plaintiff consistently uses the plural of “Crossings” in referring to
Defendant in the body of the Amended Complaint, and Defendant also uses the plural
form in all of its filings with the Court. Therefore, the Court assumes that the omission
of the “s” from “Crossing” in the caption is a typographical error.
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Inc., in the form of horizontal drilling and equipment rentals, to US Crossings on
various jobs or projects in which US Crossings was under contract with a third party.
(Am. Compl., ¶6, ECF No. 3.) In these verbal contracts, it was agreed that Defendant
US Crossings would utilize a number of Plaintiff’s pieces of equipment in exchange for
50% of the contract price of any such job or project.2 (Id. at ¶7.) The parties further
agreed that US Crossings would guarantee the return of all equipment as it was
received. (Id. at ¶8.)
Essentially, when US Crossings needed to have a bore drilled at one of its
projects, it would contact Plaintiff regarding the scope of the job and the parties would
verbally agree on the cost. Once Plaintiff completed its work, it submitted its invoice to
US Crossings for the agreed cost. US Crossings allegedly made partial or no payment
on the submitted invoices, thus necessitating in this litigation. See, generally, Am.
Compl., Count I (Maryland Job), Count II (Rice Job), Count VIII (Caldwell Job), Count
XI (Clarksburg Job), Count XIV (Jewett Job), and Count XIX (Moundsville Job), and
supporting invoices (Exs. A through R attached to Am. Compl., ECF Nos. 3-1 to 3-18).
In each of these counts, Plaintiff has brought claims for breach of contract against US
Crossings based on the parties’ verbal agreements. In addition, Plaintiff has brought, in
the alternative, claims for unjust enrichment against US Crossings, in the event that the
Court finds that the verbal agreements referred to in Counts II, VIII, XI, XIV, and XIX do
It appears that “50% of the contract price of any such job” is referring to the
compensation US Crossings was to receive from the third party for work it agreed to
perform for the third party on a particular job or project.
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not constitute binding contracts. See, generally, Counts III, IX, XII, XVI, and XVIII, &
XX.3
Following Plaintiff’s direct work in the Rice Job (see Count II),4 in September of
2015, the parties verbally agreed that US Crossings could rent a 312 Caterpillar Hoe and
additional equipment for four months for a share of the profits (“Rice Rental”). (Am.
Compl., ¶40.) During this time, Plaintiff also provided labor to US Crossings by verbal
agreement for clearing a bore path for Clearpath Utilities to complete a bore on the Rice
Job, at a cost of $10,000. (Id. at ¶ 41.) In addition, Plaintiff determined that its cost for
labor on the Rice Rental was $15,000, and that a reasonable rate for equipment rental
was $5,000 per month for four months, or $20,000. (Id. at ¶¶42-44.) Plaintiff submitted
its bill for $45,000 to US Crossings on September 24, 2015 for the Rice Rental, but has not
received any payment. (Id. at ¶ 45; Ex. G to Am. Compl., ECF No. 3-7.) These factual
allegations are set forth in Count V of the Amended Complaint in support of Plaintiff’s
breach of contract claim against US Crossings on the Rice Rental.
Alternatively, Plaintiff has also brought a claim for unjust enrichment against US
Crossings, in the event the Court finds that a contract did not exist with regard to the
Rice Rental. See, generally, Count VI, Am. Compl. In support of this claim, Plaintiff
Plaintiff also asserts claims for conversion and promissory estoppel with regard to
some of the jobs, but these claims are not being challenged in the motion to dismiss
presently before the Court.
4 The Rice Job refers to additional bores that Plaintiff drilled, as per its verbal agreement
with US Crossings, which were to be part of the Whipkey to Tetco pipeline for Rice
Poseidon Midstream, LLC in Richhill Township, Greene County, Pennsylvania. (Am.
Compl. ¶¶ 22-25.)
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incorporates its previous allegations, and further alleges that it would be unjust to
permit US Crossings to gain the benefit of the bargain without compensating Plaintiff
for his agreed upon share. (Am. Compl., ¶¶ 46, 48.)
US Crossings has moved to dismiss the unjust enrichment claim brought against
it in Count VI of the Amended Complaint with regard to the Rice Rental. Plaintiff has
filed a response and brief in opposition. Thus, the motion is ripe for disposition.
II.

LEGAL STANDARD
In deciding a motion to dismiss under Rule 12(b)(6), the Courts apply the

following standard, as recently reiterated by the Court of Appeals:
A complaint may be dismissed under Rule 12(b)(6) for
“failure to state a claim upon which relief can be granted”. . .
. “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.” Iqbal, 556 U.S. at 678, 129
S.Ct. 1937 (citation and internal quotation marks omitted)
(emphasis added). “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.” Id.; see also Sheridan v. NGK Metals
Corp., 609 F.3d 239, 262 n. 27 (3d Cir.2010). Although the
plausibility standard “does not impose a probability
requirement,” Twombly, 550 U.S. at 556, 127 S.Ct. 1955, it
does require a pleading to show “more than a sheer
possibility that a defendant has acted unlawfully,” Iqbal, 556
U.S. at 678, 129 S.Ct. 1937. A complaint that pleads facts
“merely consistent with a defendant's liability . . . stops short
of the line between possibility and plausibility of entitlement
to relief.” Id. (citation and internal quotation marks omitted).
The plausibility determination is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679, 129 S.Ct. 1937.
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Connelly v. Lane Constr. Corp., 809 F.3d 780, 786-87 (3d Cir. 2016).
Building upon the landmark Supreme Court decisions in Twombly and Iqbal, the
Court of Appeals in Connelly reiterated the three-step process District Courts must
undertake to determine the sufficiency of a complaint:
First, it must “tak[e] note of the elements [the] plaintiff must
plead to state a claim.” Iqbal, 556 U.S. at 675, 129 S.Ct. 1937.
Second, it should identify allegations that, “because they are
no more than conclusions, are not entitled to the assumption
of truth.” Id. at 679, 129 S.Ct. 1937. See also Burtch v. Milberg
Factors, Inc., 662 F.3d 212, 224 (3d Cir.2011) (“Mere
restatements of the elements of a claim are not entitled to the
assumption of truth.” (citation and editorial marks omitted)).
Finally, “[w]hen there are well-pleaded factual allegations, [the]
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556
U.S. at 679, 129 S.Ct. 1937 (emphasis added).
Id. at 787. At the motion to dismiss stage, “for purposes of pleading sufficiency, a
complaint need not establish a prima facie case in order to survive a motion to
dismiss[,]” but need allege “’enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary element[s].’” Connelly, 809 F.3d at 78889 (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556)) (footnote omitted).
Courts generally consider only the allegations of the complaint, attached
exhibits, and matters of public record in deciding motions to dismiss. Pension Benefit
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations
omitted). Factual allegations within documents described or identified in the complaint
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may also be considered if the plaintiff’s claims are based upon those documents. Id. A
district court may consider these documents without converting a motion to dismiss
into a motion for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997).
III.

DISCUSSION
US Crossings seeks to dismiss the unjust enrichment claim pled in Count VI of

the Amended Complaint on the basis that Plaintiff has failed to allege in that count that
US Crossings has been unjustly enriched at Plaintiff’s expense. Rather, US Crossings
posits that Plaintiff seeks to recover “the benefit of the bargain” and demands
compensation for its “agreed upon share.”5 US Crossings submits that these allegations
are nothing more than a restatement of the breach of contract claim that appears in
Count V, and, as such, does not set forth a legally sufficient claim for unjust enrichment.
In response, Plaintiff argues that while the language of paragraph 48—that
Defendants gained the benefit of the “bargain”—may be unclear in a vacuum, the
allegations and intent of Count VI are clear when read as a whole. Specifically, Plaintiff
submits that Count VI makes clear that the conferred benefit of the use of the

5As

US Crossings notes, it is not entirely clear what “share” Plaintiff is seeking to
recover, but as the unjust enrichment claim set forth in Count VI specifically references
the Rice Rental, and it is seeking the same money damages ($45,000) for unjust
enrichment as the money damages sought for the breach of contract claim with regard
to Rice Rental (Count V), it appears that the “agreed upon share” Plaintiff is referring to
in paragraph 48 of the Amended Complaint is $45,000.
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equipment and services of its employees was unjustly utilized and retained through the
ultimate work product without fair compensation to Plaintiff.
Pennsylvania law on unjust enrichment has been summarized as follows:
An unjust enrichment claim under Pennsylvania law
requires a showing that (1) “the plaintiff conferred a benefit
upon the defendant”; (2) “the defendant was aware of the
benefit”; and (3) “the defendant's acceptance of the benefit
occurred under circumstances in which it would be
inequitable for [it] to retain the benefit without payment of
the value thereof.” York Group, Inc. v. Pontone, 2014 WL
896632, at *20 (W.D. Pa. March 6, 2014) (citing Fabral, Inc. v.
B&B Roofing Co., Inc., 773 F.Supp.2d 539, 549 n. 10 (E.D. Pa.
2011) (internal quotations omitted)).
Avanti Wind Sys., Inc. v. Shattell, Civ. A. No. 3:14-98, 2016 WL 3211990, at *19 (W.D.Pa.
June 9, 2016) (Gibson, J.). Plaintiff maintains that it has set forth all three elements in
Count VI—that Defendants received the benefits of labor and equipment of Plaintiff,
that they accepted and utilized those benefits, and that it would be inequitable for them
to fail to compensate the Plaintiff for those benefits so conferred.
Assuming, as it must, that the factual allegations in the Amended Complaint are
true, the Court finds that Plaintiff has stated a plausible unjust enrichment claim against
US Crossings in Count VI. When the Court takes into consideration, as a whole, the
allegations incorporated by reference, as well as the new allegations set forth in Count
VI, all three elements have been sufficiently pled.
First, the allegations clearly show that Plaintiff conferred a benefit upon US
Crossings—Plaintiff provided to US Crossings: (1) a 312 Caterpillar hoe for four
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months, (2) labor to clear a bore path for Clearpath Utilities, and (3) a crew of 2-3
employees for one month to assist US Crossings on the Rice Job. (Am. Compl., ¶¶ 4042; Ex. G to Am. Compl.) As to the second element, it can reasonably be inferred that
US Crossings was aware that Plaintiff performed these services, as they were provided
pursuant to the alleged verbal agreement between Plaintiff and US Crossings, and
Plaintiff submitted an invoice to US Crossings for these services at completion. (Id. at
¶¶ 40-41, 45; Ex. G to Am. Compl.)
Finally, the third element has been met because (1) Plaintiff alleges that it has not
been compensated for its work (Am. Compl., ¶ 45); and (2) it can reasonable be inferred
from the factual allegations that Plaintiff’s performance of the agreed work allowed US
Crossings to fulfill some or all of its contractual obligations to the project owner (Am.
Compl., ¶¶ 22, 34).
Under these circumstances, it is plausible that US Crossings was unjustly
enriched to the detriment of Plaintiff. Accordingly, the Court will deny the motion to
dismiss the unjust enrichment claim set forth in Count VI.
IV.

CONCLUSION
For the reasons set forth above, the Court will deny Defendant US Crossings

Unlimited, LLC’s Motion to Dismiss (ECF No. 7) the unjust enrichment claim brought
against it in Count VI of the Amended Complaint.
A separate order will follow.

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Dated: May 11, 2017

BY THE COURT:

LISA PUPO LENIHAN
United States Magistrate Judge
cc:

All Counsel of Record
Via Electronic Mail

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