Hall v. Storm Team Construction Inc et al
Filing
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OPINION and ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim; denying 5 Motion for More Definite Statement. Signed by Honorable A Marvin Quattlebaum, Jr on 6/1/18.(alew, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Adam Phillip Hall,
) Civil Action No.: 6:18-cv-00753-AMQ
)
Plaintiff, )
)
v.
)
OPINION AND ORDER
)
Storm Team Construction Inc., Jesse Wright and )
Chad Simkins,
)
)
Defendants. )
__________________________________ )
This matter is before the Court on the Motion to Dismiss or, in the alternative, for a More
Definite Statement, of Storm Team Construction Inc., Jesse Wright, and Chad Simkins,
(“Defendants”). (ECF No. 5.) In his Complaint, Adam Philip Hall (“Plaintiff”) has alleged eight
causes of action against Defendants: (1) failure to pay wages under the South Carolina Payment
of Wages Act; (2) violation of the Fair Labor Standards Act; (3) breach of contract; (4) breach of
contract accompanied by fraud; (5) conspiracy; (6) conversion; (7) quantum meruit; and (8) an
accounting. (ECF No. 1.) Defendants move to dismiss Plaintiff’s Second, Fourth, Fifth, Sixth,
Seventh and Eighth causes of action against Defendant Storm Team in its corporate form.
Defendants also move to dismiss all claims against the defendants Simkins and Wright in their
individual capacity or, in the alternative, Defendants move for a more definite statement as to the
factual basis of Plaintiff’s claims against Defendants Simkins and Wright. For the following
reasons, the Court grants in part and denies in part Defendants’ Motion to Dismiss and denies
Defendants’ Motion for a More Definite Statement as to the factual basis of Plaintiff’s claims
against Defendants Simkins and Wright.
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I. BACKGROUND
According to the Complaint, Plaintiff Adam Phillip Hall (“Plaintiff”) is a citizen and
resident of the County of Greenville, State of South Carolina. (ECF No. 1 ¶ 1.) Defendant Storm
Team Construction Inc. (“Storm Team” or “Defendants”) is incorporated in the State of Georgia.
Id. at ¶ 2. Defendant Chad Simkins (“Simkins”), a resident of Florida, is the Owner/President
and CEO of Storm Team and Defendant Jesse Wright (“Wright”), a resident of Florida, is a
National Sales Manager for Storm Team. Id. at ¶¶ 9, 10.
Plaintiff alleged that on or about February 18, 2015, he was hired as project manager by
Storm Team to canvass areas that have suffered storm damage and obtain contracts for repairs
from homeowners. Id. at ¶ 15. Although Plaintiff was paid solely on a commission basis and
signed a contract with Storm Team stating that he was an independent contractor, Plaintiff
alleges that he was required to follow Defendants’ instructions as to when, where and how to
perform his work while holding himself out to the public as a project manager for Storm Team.
Id. at ¶ 14.
After Plaintiff’s employment was terminated, he filed a complaint on March 19, 2018, in
the Court of Common Pleas, County of Greenville, South Carolina. On the same day, Defendants
removed case to this Court pursuant to 28 U.S.C. § 1446 based on diversity jurisdiction.
Defendants filed the Motion described above on March 20, 2018. This Court held a hearing on
Defendants’ Motion on May 3, 2018.
II. STANDARDS OF REVIEW
Motion to Dismiss for Failure to State a Claim
A plaintiff’s complaint should set forth “a short and plain statement. . . showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint
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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 Bell Atl. 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.” Id. (quoting Twombly, 550 U.S. at 556)). In considering a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), a court “accepts all well-pled facts as
true and construes these facts in the light most favorable to the plaintiff . . . .” Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). However, a court “‘need
not accept the [plaintiff’s] legal conclusions drawn from the facts,’ nor need it ‘accept as true
unwarranted inferences, unreasonable conclusions, or arguments.’” Philips v. Pitt Cty. Mem’l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (quoting Kloth v. Microsoft Corp., 444 F.3d 312, 319
(4th Cir. 2006)) (modification in original). A court should grant a Rule 12(b)(6) motion if, “after
accepting all well-pleaded allegations in the plaintiff’s complaint as true and drawing all
reasonable factual inferences from those facts in the plaintiff’s favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Edwards v.
City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
Motion for a More Definite Statement
Under Federal Rule of Civil Procedure Rule12(e), “[a] party may move for a more
definite statement of a pleading to which a responsive pleading is allowed but which is so vague
or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). “Rule
12(e) must be read in conjunction with Rule 8.” Hodgson v. Virginia Baptist Hospital, Inc., 482
F.2d 821, 822 (4th Cir. 1973). Rule 8(a) only requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). As the Fourth Circuit has
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noted, “Rule 12(e) allows a defendant to move for a more definite statement if the complaint ‘is
so vague or ambiguous that [he] cannot reasonably be required to frame a responsive pleading.’”
Id. at 823.
III. DISCUSSION
A. Piercing the Corporate Veil Allegations as to Individual Defendants
Defendants first move to dismiss each of Plaintiff’s eight causes of action as to individual
Defendants Simkins and Wright arguing that Plaintiff’s Complaint fails to sufficiently allege
facts to pierce the corporate veil. (ECF No. 5 at 3.) As an initial matter, piercing the corporate
veil is not itself a cause of action, but instead is a means of imposing liability on an underlying
claim. Shearson Lehman Hutton, Inc. v. Venners, 165 F.3d 912 (4th Cir. 1998) (per curiam); see
also Thomas v. Peacock, 39 F.3d 493, 499 (4th Cir. 1994) (overruled on other grounds by
Peacock v. Thomas, 516 U.S. 349\(1996)). A court may impose personal liability on an
individual for the acts of a corporation as an equitable remedy. See Sturkie v. Sifly, 280 S.C. 453,
313 S.E.2d 316 (S.C. Ct. App. 1984). In Sturkie, the Court of Appeals of South Carolina set out
a two-pronged test for courts to use in determining whether corporate entities should be
disregarded. Id. at 318–19. The first part of the test, an eight-factor analysis, looks to observance
of the corporate formalities by the dominant shareholders. The second prong of the Sturkie test
mandates that “there be an element of injustice or fundamental unfairness if the acts of the
corporation be not regarded as the acts of the [shareholders].” Id. at 318.
Here, Plaintiff’s Complaint alleges that Defendants Simkins and Wright acted as “agents,
employees, controlling officers and dominant stockholders in Defendant Storm Team” and
should be held personally liable for all causes of action against Storm Team under the piercing of
the corporate veil doctrine. (ECF No. 1 ¶ 10.) The Complaint further alleges that “Defendants
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Simkins and Wright were agents, employees, controlling officers and dominant stockholders in
Defendant Storm Team, and that the corporate veil should be pierced based upon the following
and other factors; (a) the corporation is grossly undercapitalized; (b) the corporation fails to
observe corporate formalities; (c) the corporation fails to pay dividends; (d) the corporation is
essentially insolvent; (e) the dominant stockholder has siphoned funds of the corporation; (f)
siphoning of funds of the corporation by the dominant stockholder; (g) there is a non-functioning
of other officers or directors; (h) there is an absence of corporate records; and (i) the corporation
is merely a façade for the operations of the dominant stockholder; (j) there is an element of
injustice or fundamental unfairness if the acts of the corporation are not regarded as the acts of
the individual Defendants; (k) there is total domination and control of the corporation by the
individual Defendants; and (l) inequitable consequences caused thereby.” (ECF No. 1 ¶ 10.)
Accepting Plaintiffs’ allegations as true, and construing the facts in the light most
favorable to Plaintiff, the Court finds that the Complaint does not plead sufficient factual support
to allow the Court to draw a reasonable inference that Defendants Wright and Simkins are liable
under a piercing the corporate veil theory. First, the allegations related to that theory, which are
quoted above, are legal conclusions and/or a recitation of the elements of a claim.
The
Complaint contains insufficient factual allegations concerning those legal elements and
conclusions. Those allegations, even when considered with the other allegations of the
Complaint, do not meet the standard for a Rule 12(b)(6) motion as described by Supreme Court
and Fourth Circuit precedent. Moreover, as set forth above, piercing the corporate veil is not an
independent cause of action. Thus, to the extent Plaintiff seeks to impose liability on Wright and
Simkins under the theory of piercing the corporate veil, the Court grants Defendants’ motion.
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The Court’s ruling is without prejudice to Plaintiff filing appropriate motions to attempt
to impose individual liability on Wright and Simkins under the piercing the corporate veil theory
if facts are developed that meet the standard for pleading described above. Further, the focus of
Defendants’ argument seeking the dismissal of Wright and Simkins was on the piercing the
corporate veil issue. The Court denies the Motion at this time to the extent Defendants’ motion
seeks the dismissal of Wright and Simkins as to all claims. Defendants are of course entitled to
raise this issue at the summary judgment stage of the case.
In the alternative, Defendants move for a more definite statement as to the basis and facts
upon which Plaintiff seeks to impose individual liability on Defendants Simkins and Wright.
(ECF No. 5 at 1.) Because the Court has dismissed Plaintiff’s claims against Defendants Simkins
and Wright, Defendants’ motion for a more definite statement as to the factual basis of Plaintiff’s
claims against the individual defendants is denied as moot.
B. Fair Labor Standards Act
Defendants move to dismiss Plaintiff’s Second Cause of Action for an alleged violation
of the Fair Labor Standards Act (“FLSA”). Plaintiff’s Complaint states that Defendants
misclassified him as an independent contractor and failed to pay him at a reasonable hourly rate
plus overtime in violation of the FLSA. (ECF No. 1 ¶¶ 25-28.) Plaintiff also alleges that
Defendants withheld commission payments in violation of Plaintiff’s employment agreement. Id.
at 26.
To state a claim for a FLSA overtime violation, a plaintiff must allege: (1) he worked
overtime hours without compensation; and (2) the employer knew or should have known that he
worked overtime but failed to compensate him for it. Fair Labor Standards Act of 1938, § 1 et
seq., 29 U.S.C.A. § 201 et seq.; Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir. 1986). To
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state a claim for a minimum wage violation under the FLSA, a plaintiff must allege that he did
not receive compensation equal to or exceeding the product of the total number of hours worked
and the statutory minimum hourly rate during a given week. Blankenship v. Thurston Motor
Lines, Inc., 415 F.2d 1193, 1198 (4th Cir.1969).
Plaintiff’s Complaint alleges that during the applicable period he was an employee, that
he worked in excess of forty hours per week and that Defendants intentionally withheld wages
and overtime payments. (ECF No. 1 ¶¶ 13, 15, 26 and 27.) In response to these allegations,
Defendants argue that Plaintiff cannot simultaneously claim entitlement to commission payments
as an independent contractor while also claiming entitlement to minimum wage and overtime
payments as an employee under the FLSA. See 29 U.S.C. § 213(a). While Defendants’ position,
if true, may ultimately prevail, the Court finds that Plaintiff has sufficiently pled this cause of
action. Defendants’ arguments are more appropriate for consideration at trial or the summary
judgment stage of the case. Accordingly, Defendants’ motion to dismiss Plaintiff’s Second Cause
of Action under the Fair Labor Standards Act is denied.
C. Breach of Contract Accompanied by Fraud
Defendants move to dismiss Plaintiff’s Fourth Cause of Action for Breach of Contract
Accompanied by Fraud arguing Plaintiff has failed to state sufficient factual allegations upon
which relief can be granted. Under South Carolina law, to plead a cause of action for breach of
contract accompanied by fraud, “the plaintiff must plead facts establishing three elements: (1) a
breach of contract; (2) fraudulent intent relating to the breaching of the contract and not merely
to its making; and (3) a fraudulent act accompanying the breach.” Harper v. Ethridge, 290 S.C.
112, 119, 348 S.E.2d 374, 378 (S.C. Ct. App. 1986) (citing Floyd v. Country Squire Mobile
Homes, Inc., 287 S.C. 51, 336 S.E.2d 502 (S.C. Ct. App. 1985). Here, Plaintiff has alleged that
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Defendants breached of contract between the parties (ECF No. 1 ¶ 32) with intent to fraudulently
deprive Plaintiff of commissions (ECF No. 1 ¶ 37) by misappropriating funds owed to Plaintiff
and concealing “those acts by misrepresenting payments received on projects.” (ECF No. 1 ¶
38). The Court finds Plaintiff has pled the elements required for a breach of contract
accompanied by fraud claim with sufficient factual specificity so that, if the Court accepts the
allegations as true, they state a claim for relief that is plausible on its face. Therefore, this Court
denies Defendants’ motion to dismiss Plaintiff’s Fourth Cause of Action for Breach of Contract
Accompanied by Fraud.
D. Conspiracy
Defendants move to dismiss Plaintiff’s Fifth Cause of Action for Civil Conspiracy.
Defendants argue that Plaintiff has not alleged a sufficient factual basis to sustain a conspiracy
cause of action nor adequately pled special damages. As an alternative basis for dismissal,
Defendants argue that Plaintiff’s cause of action is barred by the intracorporate conspiracy
doctrine. (ECF No. 5 at 2-3) The Court will address these issues separately.
A cause of action for civil conspiracy is defined as “(1) a combination of two or more
persons, (2) for the purpose of injuring the plaintiff, (3) which causes him special damage.”
Vaught v. Waites, 387 S.E.2d 91, 95 (1989) (citing Lee v. Chesterfield Gen. Hosp. Inc., 344
S.E.2d 379 (S.C. Ct. App. 1986)). Plaintiff’s Complaint alleges that “Defendants combined
together with other unknown persons for the purpose of injuring the Plaintiff.” (ECF No. 1 ¶ 41.)
It also alleges “Plaintiff suffered special damages.” (ECF No. 1 ¶ 42.) These allegations on their
own would not satisfy the pleading standards of Rule 8(a)(2) as interpreted by Iqbal and
Twombly. However, Plaintiff reiterates and incorporated the rest of the allegations in his
Complaint in this cause of action. When those allegations are considered, the Court finds that the
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allegations, while far from robust, meet the required standard. Therefore, the Court denies the
Defendants’ motion on this ground.
Second, Defendants argue that Plaintiff’s Complaint fails to allege special damages
resulting from the civil conspiracy. A civil conspiracy claim is subject to dismissal if a Plaintiff
merely repeats damages from another claim instead of “specifically listing special damages as
part of their civil conspiracy claim.” Hackworth v. Greywood at Hammett, LLC, 682 S.E. 2d 871,
874 (S.C. Ct. App. 2009). Furthermore, when alleged as special damages flowing from a civil
conspiracy, the damages “must go beyond the damages alleged in other causes of action.” Id. at
874; Vaught v. Waites, 387 S.E.2d 91, 95 (S.C. Ct. App. 1989).
Plaintiff argues his attorney’s fees are special damages. (ECF No. 8 at 10-11.) Plaintiff
cites Benedict College v. National Credit Systems, Inc., for the proposition that attorney’s fees
are special damages. 735 S.E.2d 518 (S.C. Ct. App. 2012). In Benedict, the court found that the
attorney’s fees sought for a conspiracy claim constituted a claim for special damages, but only
because those attorneys’ fees did not overlap with the damages sought under other claims. Id. at
546-47. In fact, Benedict provides that a claim for civil conspiracy should be dismissed if a
plaintiff alleges identical damages from another claim. Id. at 546. Unlike the case in Benedict,
Plaintiff has not identified any damages suffered from the alleged conspiracy that do not overlap
with Plaintiff’s other causes of action. Allegro, Inc. v. Scully, 791 S.E.2d 140, 144 (S.C. 2016).
In fact, at the hearing on Defendants’ motion, Plaintiff acknowledged that the attorneys’ fees
Plaintiff claims constitute special damages were not different from the attorneys’ fees sought in
his other causes of action. Accordingly, Plaintiff has not pled special damages sufficient to
support a civil conspiracy claim. Even if Plaintiff’s allegations are accepted as true, the claim for
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civil conspiracy is not plausible on its face. Therefore, the Court grants Defendants’ motion to
dismiss Plaintiff’s Fifth Cause of Action on this basis.
Third, Defendants argue that Plaintiff’s Complaint is barred by the intracorporate
conspiracy doctrine. Under the intracorporate conspiracy doctrine, it is not legally possible for
there to be a conspiracy within a corporation. Anvar v. Greenville Hospital System, No. 2007–
UP–004, 2007 WL 8324255 at *4 (S.C. Ct. App. 2007) (unpublished). Said another way, “a
corporation cannot conspire with itself,” McMillan v. Oconee Memorial Hosp., Inc., 626 S.E.2d
884, 887 (S.C. 2006). Applying this doctrine, Defendants argue that Simkins and Wright, who
are alleged to be employees and/or shareholders of Storm Team, cannot conspire with Storm
Team as a matter of law.
Plaintiff acknowledges the intracorporate conspiracy doctrine, but argues his claims fall
under the individual personal stake exception to that doctrine. South Carolina courts have
allowed claims of civil conspiracy when there are allegations that officers, directors, employees
or agents of a corporation are acting in furtherance of their personal interests and not the interests
of the corporation or if they are acting outside the scope of their authority with the corporation.
See Cricket Cove Ventures, LLC v. Gilland, 701 S.E.2d 39 (S.C. Ct. App. 2010) (holding that the
intracorporate immunity doctrine did not apply to a developer’s civil conspiracy claim where the
developer alleged that individual county council members had a personal stake in preventing the
developer from moving forward with its development plans); Pridgen v. Ward, 705 S.E.2d 58
(S.C. Ct. App. 2010) (holding the independent personal stake exception applied under South
Carolina law where a former employee alleged that a former co-worker developed a personal
vendetta against him because he refused his former co-worker’s request to make false statements
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in a report); but see Anvar, at *5 (holding that the personal stake exception did not apply where a
physician alleged a civil conspiracy between employees and agents of a hospital to suspend the
physician after defendants reported the physician’s alleged misconduct to a disciplinary board
because the defendants acted on behalf of the hospital); Broyhill v. Resolution Management
Consultants, Inc., 736 S.E.2d 867 (S.C. Ct. App. 2012) (finding that the independent personal
stake exception did not apply where the plaintiff, a former employee of defendants, did not
produce any evidence that defendants acted outside of their official capacities as officers of the
former employer in bringing an action against plaintiff because the defendants could not conspire
with their employer).
In this case, Plaintiff has not pled any factual allegations about an interest of any of
Defendants aside from the interests of Storm Team. Also, Plaintiff has not pled any allegations
about any of the Defendants acting outside their corporate authority. Therefore, Plaintiff’s offers
no allegations in his Complaint that would, if accepted as true, support the individual personal
stake exception to the intracorporate conspiracy doctrine. For this separate and independent
reason, Plaintiff’s conspiracy claim should be dismissed because it does not allege sufficient
factual matter to support a claim for relief resulting from the conspiracy. Therefore, Defendants’
motion to dismiss Plaintiffs Fifth Cause of Action is granted with prejudice.
E. Conversion
Defendants next move to dismiss Plaintiff’s Sixth Cause of Action for Conversion,
arguing that Plaintiff has failed to plead sufficient facts and the proper elements to support a
conversion cause of action. Under South Carolina law, a conversion is “the unauthorized
assumption in the exercise of the right of ownership over goods or personal chattels belonging to
another to the exclusion of the owner's rights.” Moseley v. Oswalds, 656 S.E.2d 380, 381 (S.C.
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2008) (citing SSI Med. Servs., Inc. v. Cox, 392 S.E.2d 789, 792 (S.C.1990)). Intangible rights are
normally not the proper subject for a conversion claim. Gignilliat v. Gignilliat, Savitz & Bettis,
L.L.P, 684 S.E.2d 756, 763 (S.C. 2009). Money may be the subject of conversion when it is
“capable of being identified and there may be conversion of determinate sums even though the
specific coins and bills are not identified.” Moore v. Weinberg, 681 S.E.2d 875, 878 (S.C. 2009).
Defendants argue that Plaintiff cannot point to an obligation of Defendants to deliver a
specific item or fund to Plaintiff. Defendants argue “there can be no conversion of money unless
there is an obligation on the defendant to deliver a specific, identifiable fund to the plaintiff.”
Richardson’s Rests., Inc. v. National Bank of South Carolina, 403 S.E.2d 669, 672 (S.C. Ct.
App. 1991)
Plaintiff’s Complaint alleges that “Defendant assumed and exercised the right of
ownership of goods and personal chattels of the Plaintiff without Plaintiff’s permission” (ECF
No. 1 ¶ 44) and that Defendants “withheld payments” and “unilaterally changed the Plaintiff’s
compensation and refused to disclose details of when projects were paid up and what amount of
commissions were properly assigned the Plaintiff.” (ECF No. 1 ¶ 18.) Plaintiff’s Complaint does
not identify any specific goods, chattels or sources of intangible items converted by Defendants.
The Complaint appears to allege the subject matter of the conversion claim are wages and
commissions.
The allegations for the Conversion claim are far from robust. However, the Court finds
that the allegations in the Complaint for this cause of action, if accepted as true, state a claim that
is plausible on its face. Therefore, the Court denies Defendants’ motion as to the Conversion
claim.
H. Quantum Meruit
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Defendants move to dismiss Plaintiff’s Seventh Cause of Action for Quantum Meruit
based on Plaintiff’s failure to state sufficient factual allegations to support a claim. To establish a
claim for quantum meruit, also known as unjust enrichment, a plaintiff must show three
elements: (1) plaintiff conferred a benefit conferred to defendant, (2) defendant knowingly and
voluntarily accepted the benefit, and (3) defendant’s retention of the benefit was such that it is
unjust for defendant to retain it without paying its value. Williams Carpet Contractors, Inc. v.
Shelly, 734 S.E.2d 177, 180 (S.C. Ct. App. 2012).
Here, Plaintiff’s Complaint alleges that Plaintiff provided valuable services to Defendants
that Defendants accepted and enjoyed. (ECF No. 1 ¶ 47-50.) Plaintiff’s Complaint also alleges
that “a reasonably informed person receiving such services would expect to pay for such services
and that the plaintiff [w]as expecting to be paid for such services.” (ECF No. 1¶ 49.) The Court
finds that Plaintiff has barely alleged facts sufficient to constitute a cause of action for Quantum
Meruit. Accordingly, Defendants’ motion to dismiss Plaintiff’s Seventh Cause of Action for
Quantum Meruit is denied.
G. Accounting
Finally, Defendants argue that Plaintiff’s Eighth Cause of Action for Accounting should
be dismissed because it fails to allege an inadequate remedy at law. Plaintiff’s Complaint alleges
that Defendants are in exclusive control of the information needed to determine the amounts due
to Plaintiff and that Defendants are responsible to Plaintiff for money or property. (ECF No. 1. ¶
51-53.) Plaintiff also alleges that Defendants has control over information relating to which
contracts have been paid, how much was paid and the gross proceeds received from the
payments. (ECF No. 1 ¶ 52.)
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As a threshold matter, an accounting is an action in equity that is only awarded where a
Plaintiff has alleged that there is no adequate remedy at law. See Key Corp. Capital, Inc. v.
County of Beaufort, 644 S.E.2d 675, 678 (2007). If there is no adequate remedy at law, an
accounting may be enforced when there is a need for enhanced discovery. Historic Charleston
Holdings, LLC v. Mallon, 673 S.E.2d 448, 453 (S.C. 2009). A need for enhanced discovery
exists when the defendant either has control over accounts or otherwise withholds information
needed by the Plaintiff in order to determine the amount owed. Historic Charleston Holdings,
LLC v. Mallon, 673 S.E.2d 448, 453 (S.C. 2009); see e.g. Consignment Sales, LLC v. Tucker Oil
Co., 705 S.E.2d 73, 75 (S.C. Ct. App. 2010) (ordering an accounting where Tucker Oil “was in
exclusive control of the information needed to determine the amount Consignment Sales is owed
... knows the amount of gasoline it delivered pursuant to the contracts and gross proceeds of the
contracts,” and where Consignment Sales “had no access to this information except through
Tucker Oil”).
Although Plaintiff alleges a need for information relating to contract payments, amounts
due, and gross proceeds received from payments, Plaintiff has not pled or otherwise provided the
Court with any reasons as to why this information cannot be obtained during the normal course
of discovery. Accordingly, Defendants’ motion to dismiss Plaintiff’s Eighth Cause of Action for
an Accounting is granted. However, the motion is granted without prejudice as it relates to this
claim. In the event that Plaintiff is unable to obtain the information sought through discovery,
Plaintiff may file an amended complaint or other appropriate motion seeking an accounting.
IV. CONCLUSION
For the foregoing reasons, the Court grants without prejudice Defendants’ motion to
dismiss Plaintiff’s eight causes of action as to Defendants Simkins and Wright to the limited
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extent Plaintiff seeks to impose liability under the theory of piercing the corporate veil. The
Court denies Defendants’ Motion for a More Definite Statement as to the factual basis of
Plaintiff’s claims against Defendants Simkins and Wright.
As to the Plaintiff’s claims against Defendants Storm Team, Simkins and Wright, the
Court grants Defendants’ motion to dismiss Plaintiff’s Fifth cause of action as to all Defendants
with prejudice and Eighth cause of action as to all Defendants without prejudice, and the Court
denies Defendants’ motions to dismiss Plaintiff’s Second, Fourth, Sixth and Seventh causes of
action against all Defendants.
IT IS SO ORDERED.
s/A. Marvin Quattlebaum, Jr.
United States District Judge
June 1, 2018
Greenville, South Carolina
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