Lansky v. Protection One Alarm Monitoring, Inc.

Filing 27

ORDER granting in part and denying in part Motion for Judgment on the Pleadings 8 , and denying Plaintiff's motion to amend complaint 21 . Signed by Judge Samuel H. Mays, Jr on 6/21/2018. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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DEBORAH LANSKY,
Plaintiff,
v.
PROTECTION ONE ALARM
MONITORING, INC.,
Defendant.

No. 2:17-cv-2883-SHM-dkv

ORDER

Plaintiff Deborah Lansky alleges breach of contract,
negligence, and detrimental reliance.

Before the Court is the

January 5, 2018 Motion for Judgment on the Pleadings, filed by
Defendant ADT LLC, successor-in-interest to Protection One
Alarm Monitoring, Inc. (“ADT”).

Plaintiff responded on January

15, 2018, arguing for denial of ADT’s motion or, in the
alternative, an opportunity to amend her complaint.
21.)

ADT replied on January 22, 2018.

(ECF No.

(ECF No. 22.)

For the following reasons, ADT’s Motion for Judgment on
the Pleadings is GRANTED in part and DENIED in part.
Plaintiff’s motion to amend the complaint is DENIED.

I.

Background
On April 11, 2015, Plaintiff entered into a contract with

ADT’s predecessor, Protection One Alarm Monitoring, Inc., which
was to provide alarm monitoring services for Plaintiff’s
apartment in Memphis, Tennessee (the “Contract”).

(Compl., ECF

No. 1-2 ¶ 4.)
On or about June 23, 2017, Plaintiff set her alarm before
leaving her apartment.
burglar broke in.

(Id. ¶ 6.)

(Id. ¶ 7.)

While she was gone, a

Although the alarm was

activated, ADT failed to notify “the police, apartment complex,
and other proper authorities.”

(Id.)

ADT left a voicemail

message on Plaintiff’s telephone, asking her to return its
call.

(Id. ¶ 8.)

Surveillance video recorded inside

Plaintiff’s apartment showed that the burglar removed the alarm
system, found Plaintiff’s safe, and stole “approximately one
hundred thousand dollars ($100,000.00) in personal property.”
(Id. ¶¶ 9-10.)
On October 12, 2017, Plaintiff filed a complaint in the
Circuit Court for Shelby County, Tennessee, alleging breach of
contract, negligence, and detrimental reliance against
Protection One Alarm Monitoring, Inc.

2

(See generally id.)

On December 8, 2017, ADT removed the case to this Court,
alleging diversity jurisdiction.
at 2.)

(Notice of Removal, ECF No. 1

ADT answered on December 15, 2017.

(ECF No. 6.)

On January 5, 2018, ADT filed its Motion for Judgment on
the Pleadings and supporting memorandum.

(ECF Nos. 8-9.)

Plaintiff responded on January 15, 2018.

(ECF No. 21.)

replied on January 22, 2018.
II.

ADT

(ECF No. 22.)

Jurisdiction & Choice of Law
A. Jurisdiction

This Court has diversity jurisdiction under 28 U.S.C. §
1332.

Plaintiff is a resident and citizen of Shelby County,

Tennessee.

(Compl., ECF No. 1-2 ¶ 1.)

ADT is a limited

liability company, whose sole member is a Delaware corporation
with its principal place of business in Florida.
Removal, ECF No. 1 ¶ 7.)

(Notice of

A limited liability company is a

citizen wherever its members are citizens.

See Delay v.

Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir.
2009).

ADT is a citizen of Delaware and Florida.

The parties

are completely diverse.
Plaintiff alleges that the amount in controversy exceeds
$75,000.

(Compl., ECF No. 1-2 at 14.)

“[T]he sum claimed by

the plaintiff controls if the claim is apparently made in good

3

faith.”

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.

283, 288 (1938); see also Mass. Cas. Ins. Co. v. Harmon, 88
F.3d 415, 416 (6th Cir. 1996).

The requirements of diversity

jurisdiction are satisfied.
B. Choice of Law
In diversity actions, state substantive law governs.
e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

See,
A

federal court applies the choice-of-law provisions of the state
in which it sits.

Id.; Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487, 496 (1941); Cole v. Mileti, 133 F.3d 433, 437
(6th Cir. 1998) (“It is well-established that federal courts
sitting in diversity must apply the choice-of-law rules of the
forum state.”) (citing cases).
Plaintiff alleges state law claims for breach of contract,
negligence, and detrimental reliance.
11-14.)

(Compl., ECF No. 1-2 at

Tennessee follows the rule of lex loci contractus,

which provides that a contract is presumed to be governed by
the law of the jurisdiction in which it was executed, absent a
contrary intent.

Vantage Tech., LLC v. Cross, 17 S.W.3d 637,

650 (Tenn. Ct. App. 1999) (citing Ohio Cas. Ins. Co. v.
Travelers Indem. Co., 493 S.W.2d 465, 467 (Tenn. 1973)).
Contract was executed in Tennessee.

4

The

Neither Plaintiff nor ADT

challenges the application of Tennessee law.

The Court will

apply Tennessee substantive law to Plaintiff’s contract claims.
For tort claims, Tennessee follows the “most significant
relationship” rule, which provides that “the law of the state
where the injury occurred will be applied unless some other
state has a more significant relationship to the litigation.”
Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn. 1992).

To

determine which state has the “most significant relationship,”
Tennessee courts consider seven principles:
(a)
the
needs
of
international systems,

the

interstate

and

(b) the relevant policies of the forum,
(c) the relevant policies of other interested
states and the relative interests of those
states in the determination of the particular
issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular
field of law,
(f) certainty, predictability, and uniformity of
result, and
(g) ease in the determination and application of
the law to be applied.
Id. n.3 (quoting Restatement (Second) of Conflict of Laws § 6
(1971)).

When applying those principles, courts consider four

factors: “(a) the place where the injury occurred, (b) the
place where the conduct causing the injury occurred, (c) the
domicile, residence, nationality, place of incorporation and
5

place of business of the parties, [and] (d) the place where the
relationship, if any, between the parties is centered.”
Timoshchuk v. Long of Chattanooga Mercedes-Benz, No. E200801562-COA-R3-CV, 2009 WL 3230961, at *11 (Tenn. Ct. App. Oct.
8, 2009); accord Hataway, 830 S.W.2d at 59.

“[T]hese contacts

are to be evaluated according to their relative importance with
respect to the particular issue.”

Timoshchuk, 2009 WL 3230961,

at *11; accord Hataway, 830 S.W.2d at 59.
Tennessee has the most significant relationship to
Plaintiff’s negligence claim.

The alleged injury occurred in

Tennessee, and Plaintiff is a Tennessee resident and citizen.
The Contract between the parties was formed in Tennessee.
alleged negligent actions occurred in Tennessee.

The

The

relationship of the parties is centered in Tennessee.

No other

state has a more significant relationship to Plaintiff’s claim
than Tennessee.

The Court will apply Tennessee substantive law

to Plaintiff’s tort claim against ADT.
III. Legal Standard
A. Motion for Judgment on the Pleadings – Rule 12(c)
“After the pleadings are closed -- but early enough not to
delay trial -- a party may move for judgment on the pleadings.”
Fed. R. Civ. P. 12(c).

The standard governing a motion to

dismiss under Rule 12(b)(6) applies to a motion for judgment on
6

the pleadings.

Warrior Sports, Inc. v. Nat'l Collegiate

Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010) (citing EEOC
v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 1973)).
“For purposes of a motion for judgment on the pleadings, all
well-pleaded material allegations of the pleadings of the
opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly
entitled to judgment.”

JPMorgan Chase Bank, N.A. v. Winget,

510 F.3d 577, 581 (6th Cir. 2007).
“[T]he legal standards for adjudicating Rule 12(b)(6) and
Rule 12(c) motions are the same. . . .”
F.3d 434, 437 n.5 (6th Cir. 2007).

Lindsay v. Yates, 498

The court must separate

factual allegations from legal conclusions, and may consider as
true only those factual allegations which meet a threshold test
of plausibility.

See, e.g., Tucker v. Middleburg-Legacy Place,

539 F.3d 545 (6th Cir. 2008) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007)).

The court must construe the

complaint in the light most favorable to the plaintiff and
accept all well-pled factual allegations as true.

League of

United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th
Cir. 2007).

A plaintiff can support a claim “by showing any

set of facts consistent with the allegations in the complaint.”
Twombly, 550 U.S. at 563.

7

This standard requires more than bare assertions of legal
conclusions.

Tackett v. M & G Polymers, USA, LLC, 561 F.3d

478, 488 (6th Cir. 2009).

“[A] formulaic recitation of the

elements of a cause of action will not do.”
at 555.

Twombly, 550 U.S.

To survive a motion to dismiss, a complaint must

contain sufficient facts “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).

“The plausibility

standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.”

Id. (citing Twombly, 550 U.S. at 556).

“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
(citation omitted).

Id.

A plaintiff with no facts and “armed with

nothing more than conclusions” cannot “unlock the doors of
discovery.”

Id. at 678-79.

To survive a motion for judgment

on the pleadings, a complaint must “contain either direct or
inferential allegations respecting all material elements
necessary for recovery under a viable legal theory.”
D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014)
(quotation marks omitted).

8

B. Motion to Amend Complaint – Rule 15
Federal Rule of Civil Procedure 15(a)(2) provides that a
Court should grant leave to amend a pleading freely “when
justice so requires.”
In the absence of . . . undue delay, bad faith or
dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of
amendment, etc. -- the leave sought should . . . be
‘freely given.’
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Miller v.
Champion Enters., Inc., 346 F.3d 660, 690 (6th Cir. 2003).
A motion to amend a complaint may be denied if the
proposed amendment is futile.

See Benzon v. Morgan Stanley

Distributors, Inc., 420 F.3d 598, 613 (6th Cir. 2005).

An

amendment is futile if it would not survive a motion to
dismiss.

Miller v. Calhoun County, 408 F.3d 803, 817 (6th Cir.

2005).
IV.

Analysis
A. Motion for Judgment on the Pleadings

ADT argues that Plaintiff’s breach of contract claim
should be dismissed “to the extent it seeks more than $250,” 1

1

ADT also argues that damages on Plaintiff’s negligence and
detrimental reliance claims must be limited to $250.00, to the extent those
claims survive. (See ECF No. 8 at 39.)

9

that Plaintiff’s negligence claim should be dismissed because
ADT does not owe Plaintiff a common-law duty, and that
Plaintiff’s detrimental reliance claim should be dismissed
because she has failed to allege “a specific promise
independent from the parties’ contract.”
1.

(ECF No. 8 at 39-40.)

Breach of Contract

In Tennessee, “the essential elements of any breach of
contract claim include (1) the existence of an enforceable
contract, (2) nonperformance amounting to a breach of the
contract, and (3) damages caused by the breach of the
contract.”

ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183

S.W.3d 1, 26 (Tenn. Ct. App. 2005).
ADT does not contend that Plaintiff’s entire breach of
contract claim fails as a matter of law.

ADT argues that, to

the extent Plaintiff brings a breach of contract claim, damages
must be limited to $250.00 under the limited liability
provision in the Contract.

(ECF No. 9 at 46.)

The Contract

provides, in part:
4.3 You understand and agree that if either Owner or
[ADT] should be found liable for loss, damage, or
injury due to the failure of the System in any
respect whatsoever, including but not limited to
[ADT]’s monitoring of the System, Owner’s and [ADT]’s
collective liability shall not exceed Two Hundred and
Fifty Dollars ($250.00), and this liability shall be

10

exclusive, that is, entirely limited to $250.00 and
nothing else.
(ECF No. 9-1 at 55.)
Plaintiff contends that this limitation of liability
clause is not enforceable because it is an adhesion contract,
it is unconscionable, and its enforcement would violate public
policy.

(ECF No. 21-1 at 82-83.)
a. Adhesion and Unconscionability

In Tennessee, an adhesion contract is defined as “‘a
standardized form offered on what amounts to a ‘take it or
leave it’ basis, without affording the weaker party a realistic
opportunity to bargain, and under conditions whereby the weaker
party can only obtain the desired product or service by
submitting to the form of the contract.’” Seawright v. Am.
Gen. Fin. Servs., Inc., 507 F.3d 967, 975 (6th Cir. 2007)
(quoting Buraczynski v. Eyring, 919 S.W.2d 314, 320 (Tenn.
1996)).

There is no adhesion unless there is no “meaningful

choice for the party occupying the weaker bargaining position.”
Id. (citing Cooper v. MRM Inv. Co., 367 F.3d 493 (6th Cir.
2004)).
Even if a contract is adhesive, it remains enforceable
unless it is unconscionable.
S.W.2d at 320.)

Id. (citing Buraczynski, 919

“[A] contract will be deemed unconscionable if
11

‘the provisions are so one-sided, in view of all the facts and
circumstances, that the contracting party is denied any
opportunity for meaningful choice.’”

Berent v. CMH Homes,

Inc., 466 S.W.3d 740, 750 (Tenn. 2015) (quoting Taylor v.
Butler, 142 S.W.3d 277, 285 (Tenn. 2004)).

“Enforcement of a

contract is generally refused on grounds of unconscionability
where the inequality of the bargain is so manifest as to shock
the judgment of a person of common sense, and where the terms
are so oppressive that no reasonable person would make them on
the one hand, and no honest and fair person would accept them
on the other.”

Taylor, 142 S.W.3d at 285.

Tennessee courts have typically found adhesion contracts
unenforceable when the weaker party’s available remedies are
more limited than the leveraging party’s, or the weaker party’s
remedy is exclusive, but the leveraging party’s is not.

See

e.g., id. at 286–87 (finding a provision to arbitrate all
plaintiff's claims in an adhesion contract was unenforceable
because it was unreasonably favorable to the defendant and
oppressive to the plaintiff); Brown v. Tenn. Title Loans, Inc.,
216 S.W.3d 780, 787 (Tenn. Ct App. 2006) (finding the
arbitration provision in an adhesion contract unconscionable
because it required plaintiff to arbitrate all claims, but
allowed defendant to litigate).

12

The limited liability clause here does not give ADT more
remedies than Plaintiff or provide an exclusive remedy for
Plaintiff, but not ADT.
$250.00 in damages.

Both Plaintiff and ADT are limited to

(ECF No. 9-1 at 55 (“Owner’s and [ADT]’s

collective liability shall not exceed Two Hundred and Fifty
Dollars ($250.00). . . .”).)
Tennessee courts have concluded that contracts for
burglary-protection-alarm-system monitoring services with
limitation of liability clauses are not ipso facto void and
unenforceable.

E.B. Harvey & Co. v. Protective Sys., Inc., No.

CA 840, 1989 WL 9546, at *4 (Tenn. Ct. App. Feb. 10, 1989).

In

Tennessee, limited liability clauses are upheld absent
“intentional fraud, deceit, or intentional misrepresentation.”
Houghland v. Security Alarms & Services, Inc., 755 S.W.2d 769,
773 (Tenn. 1988); see Kendrick v. Sonitrol Sec. of Knoxville,
Inc., No. S.C. 287, 1988 WL 110083, at *1 (Tenn. Oct. 24, 1988)
(“[L]imitation of liability provisions in a contract are
enforceable absent evidence of intentional tort, or deliberate
fraud, or evidence of a negligent material misrepresentation. .
. .”).

A breach of contract does not make a limitation of

liability clause null and void.

Beijing Fito Med. Co., Ltd. v.

Wright Med. Tech., Inc., No. 2:15-CV-02258-JPM-TMP, 2017 WL
5170126, at *8 (W.D. Tenn. Feb. 21, 2017) (citing Louisiana

13

Pacific Corp. v. Teaford Co., Inc., No. 3:11-cv-00317, 2012 WL
3150721, at *5 (M.D. Tenn. Aug. 2, 2012)); Roopchan v. ADT Sec.
Sys., Inc., 781 F. Supp. 2d 636, 660 (E.D. Tenn. 2011).
Plaintiff contends that the limited liability clause does
not apply because ADT was grossly negligent or reckless.
No. 21-1 at 83.)

(ECF

Plaintiff does not allege that ADT

intentionally mispresented or fraudulently concealed any
material fact, or deceived Plaintiff.

Plaintiff’s breach of

contract claim, alone, does not make the limited liability
clause unenforceable.

The Contract is not unenforceable

because it is adhesive or unconscionable.
b. Public Policy
A contract may be unenforceable if it is contrary to
public policy.
2011).

See Baugh v. Novak, 340 S.W.3d 372, 381 (Tenn.

“The determination of whether a contract is

unenforceable on public policy grounds is a question of law.”
Id.

“[C]ourts will decline to enforce a contract on public

policy grounds only (1) when the violation of public policy is
clearly established, (2) when the violation is inherent in the
contract itself, not collateral thereto, or when the contract’s
purpose taints it with illegality, and (3) when a clear public
detriment will probably occur as a result of the contract or
where the object of the contract tends to injure the public.”
14

Id. at 383-84.

Tennessee’s public policy is established by the

Tennessee Constitution, statutes, common law, and court
decisions.

Id. at 384.

Tennessee courts have decided that liability clauses
limiting the amount of damages for alarm-system monitoring
services do not violate public policy, especially where
liability can be increased by paying an additional amount.

See

E.B. Harvey & Co., 1989 WL 9546, at *4 (emphasizing trial court
transcript that it would not be “immoral or illegal” if the
alarm company agreed to increase liability by buying insurance
and passing the cost of that insurance to the customer); see
also Underwood v. Nat'l Alarm Servs., Inc., No. E2006-00107COA-R3CV, 2007 WL 1412040, at *5 (Tenn. Ct. App. May 14, 2007);
Houghland, 755 S.W.2d at 771.

The Contract here provides that

Plaintiff can “obtain an increase in [ADT’s] liability . . . by
paying an additional annual charge directly to [ADT].”

(ECF

No. 9-1 ¶ 4.5.)
Plaintiff cites no authority, and the Court finds none,
that limited liability clauses like the one here violate the
public policy of Tennessee.
opposite conclusion.

Tennessee decisions support the

The Contract does not violate public

policy.

15

Plaintiff has failed to establish that the limited
liability clause here is unenforceable.

ADT’s Motion for

Judgment on the Pleadings is GRANTED on Plaintiff’s breach of
contract claim.

The damages on Plaintiff’s breach of contract

claim are limited to $250.00.
2.

Negligence

To prevail on a negligence claim in Tennessee, a plaintiff
must establish (1) a duty of care owed by the defendant to the
plaintiff; (2) conduct falling below the applicable standard of
care amounting to a breach of that duty; (3) an injury or loss;
(4) causation in fact; and (5) proximate, or legal, cause.
Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn.
2009).
Plaintiff alleges that ADT “had a duty to exercise
reasonable care and skill in monitoring the security system”
and “to promptly alert the proper authorities in the event of a
break-in and comply with the terms and conditions of the
parties’ agreement.”

(Compl., ECF No 1-2 ¶ 23.)

ADT argues

that the duty to which Plaintiff refers arises from the
Contract, and is not a common-law tort duty.
48.)

(ECF No. 9 at

Therefore, ADT argues, Plaintiff’s negligence claim must

be dismissed.

(Id.)

Plaintiff does not address ADT’s argument

in her response.
16

“An action is one in contract and not in tort ‘[w]hen an
act complained of is a breach of specific terms of the
contract, without any reference to the legal duties imposed by
law upon the relationship created thereby.’”

Weese v. Wyndham

Vacation Resorts, No. 3:07-CV-433, 2009 WL 1884058, at *6 (E.D.
Tenn. June 30, 2009) (quoting Green v. Moore, No. M2000–03035–
COA–R3–CV, 2001 WL 1660828, at *3 (Tenn. Ct. App. Dec. 28,
2001)).

An action lies in tort and not in contract “when an

act constituting a contractual breach also constitutes a breach
of a common law duty independent of the contract.”

Id.

Tennessee courts have found a tort duty “to perform the
obligations of [a] contract with reasonable care.”

Underwood,

2007 WL 1412040, at *4; see Fed. Ins. Co. v. Winters, 354
S.W.3d 287, 292-94 (Tenn. 2011).

In Underwood, plaintiff

relied on several theories of negligence by defendant, an
emergency monitoring service.

Id. at *1.

The Tennessee Court

of Appeals concluded that “[defendant] was bound by the terms
of its Agreement with [plaintiff], and it owed [plaintiff] a
duty to perform the obligations of that contract with
reasonable care.”

Id. at *4. 2

2
ADT cites Ram Int'l, Inc. v. ADT Sec. Servs., Inc., 555 F. App'x 493
(6th Cir. 2014) and Spengler v. ADT Sec. Servs., Inc., 505 F.3d 456 (6th
Cir. 2007) for the proposition that tort claims are foreclosed when they
derive from contractual duties. Both cases, however, apply Michigan law,
which requires that, for an action in tort to arise out of a breach of
contract, the act must constitute a breach of duty separate and distinct

17

Plaintiff alleges that ADT had a duty to perform its
obligations under the Contract with reasonable care, and that
ADT breached that duty by negligently monitoring the alarm
system.

ADT’s breach allowed an intruder to burglarize

Plaintiff’s apartment, resulting in a substantial loss.
Plaintiff has sufficiently alleged a claim for negligence.
ADT’s Motion for Judgment on the Pleadings on Plaintiff’s
negligence claim is DENIED.
3.

Detrimental Reliance

“Detrimental reliance, more commonly known as promissory
estoppel, involves the defendant making a promise upon which
the plaintiff reasonably relied, and the plaintiff showing that
the reliance detrimentally affected the plaintiff.”

Philp v.

Se. Enterprises, LLC, No. M201602046COAR3CV, 2018 WL 801663, at
*10 n.21 (Tenn. Ct. App. Feb. 9, 2018).

To succeed on a claim

of promissory estoppel, Plaintiff must establish: “(1) that a
promise was made; (2) that the promise was unambiguous and not
unenforceably vague; and (3) that [she] reasonably relied upon
the promise to [her] detriment.”

Chavez v. Broadway Elec.

Serv. Corp., 245 S.W.3d 398, 404 (Tenn. Ct. App. 2007)
(citations omitted).

from the breach of contract. Haas v. Montgomery Ward & Co., 812 F.2d 1015,
1016–17 (6th Cir. 1987). There is no such requirement in Tennessee.

18

Tennessee recognizes a claim of promissory estoppel in
“exceptional cases.”

Barnes & Robinson Company, Inc. v.

OneSource Facility Services, Inc., 195 S.W.3d 637 (Tenn. Ct.
App. 2006).

Exceptional cases include conduct akin to fraud.

Shedd v. Gaylord Entertainment Company, 118 S.W.3d 695 (Tenn.
Ct. App. 2003).

A promissory estoppel claim is not dependent

on the finding of an express contract between the parties,
Engenius Entertainment, Inc. v. Herenton, 971 S.W.2d 12, 19
(Tenn. Ct. App. 1997), but the court must first determine
whether an enforceable contract exists.

Calabro v. Calabro, 15

S.W.3d 873, 879 (Tenn. Ct. App. 1999).

Promissory estoppel can

be an alternative theory of recovery on an express contract.
Operations Management International, Inc. v. Tengasco, Inc., 35
F.Supp.2d 1052 (E.D. Tenn. 1999).

As a general matter,

however, promissory estoppel is not a viable theory of recovery
when there is a valid contract.

Jones v. BAC Home Loans

Servicing, LP, No. W201600717COAR3CV, 2017 WL 2972218, at *9
(Tenn. Ct. App. July 12, 2017).
Given a contract, a claim of promissory estoppel is
limited to allegations that a promise expanded the terms of the
existing contract.

Id.; Bill Brown Const. Co. v. Glens Falls

Ins. Co., 818 S.W.2d 1, 9-11 (Tenn. 1991).

A claim of

promissory estoppel is precluded where the parties merely

19

dispute the terms, scope, or effect of an enforceable contract.
Terry Barr Sales Agency, Inc. v. All–Lock Company, Inc., 96
F.3d 174 (6th Cir. 1996) (applying Michigan law); Jones, 2017
WL 2972218, at *10.
Plaintiff alleges that ADT made a “representation” to
“properly monitor[] the Plaintiff’s security system, and in the
event of a break-in, alert the proper authorities in a timely
manner.”

(Compl., ECF No. 1-2 ¶ 19.)

Plaintiff represents

that she reasonably relied on ADT’s “representation” that it
would monitor the security system properly and respond
appropriately, and that to her detriment she paid ADT a monthly
fee and “lost tens of thousands of dollars of personal
property. . . .”

(Id. ¶ 20.)

Plaintiff does not allege that

ADT made a promise outside the Contract or a promise that
expanded the terms of the Contract.
The Contract provides that ADT:
shall, in accordance with its policies, procedures
and applicable legal requirements, attempt to verify
and signal and, upon verification, notify the
appropriate responding party, as designated by Owner,
by calling the telephone numbers provided to [ADT] by
Owner or by Resident, as the case may be.
You
acknowledge that when an alarm signal is received by
[ADT], in order to verify the validity of such
signal, the [ADT] operator will call only the
telephone number in the Unit designated by the Owner
and/or Property Management. . . . [ADT] is solely
responsible for contacting or dispatching responding

20

parties, as designated by the Owner or its Agent, to
respond to alarm signals. . . .
(ECF No. 9-1 at 55-56.)
Plaintiff has failed to state a claim.

She does not

allege a promise that expanded the terms of the Contract.
seeks recovery for breach of the Contract terms.

She

To the extent

Plaintiff seeks to amend the terms of the Contract, her request
is precluded.

See Jones, 2017 WL 2972218, at *10.

ADT’s

Motion for Judgment on the Pleadings is GRANTED on Plaintiff’s
detrimental reliance claim.
B. Motion to Amend Complaint
Plaintiff seeks “leave to Amend her Complaint to more
fully elaborate on the unconscionability and/or against public
policy arguments.”

(ECF No. 21 at 78.)

For the reasons stated

above, such an amendment would be futile.

See Part IV.A.1.

Plaintiff’s Motion to Amend the Complaint is DENIED.
V.

Conclusion
For the foregoing reasons, ADT’s Motion for Judgment on

the Pleadings is GRANTED in part and DENIED in part.

ADT’s

motion to limit recovery on Plaintiff’s breach of contract
claim to $250.00 is GRANTED.

ADT’s motion on Plaintiff’s

detrimental reliance claim is GRANTED.

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ADT’s motion on

Plaintiff’s negligence claim is DENIED.

Plaintiff’s motion to

amend the complaint is DENIED.

So ordered this 21st day of June, 2018.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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