759 F. Supp. 2d 1059
E.D. Wis.2010Background
- Plaintiffs Harley Marine Services, Harco Marine, L.L.C., and Olympic Tug & Barge, Inc. allege Manitowoc Marine built a barge to carry 80,000 barrels that allegedly failed to meet contract/warranty standards.
- Plaintiffs also assert claims for breach of the duty of good faith, unjust enrichment, and promissory estoppel in addition to breach of contract.
- Defendants move to dismiss Counts Three, Four, and Five as facially inconsistent with the contract claim and argue Count Six (guaranty) is not ripe.
- Court finds pleading in the alternative is permissible, but inconsistent non-contractual claims may be dismissed where the contract exists and validity is not in dispute.
- The court holds the contract exists/valid for purposes of the motion, dismisses Counts Three, Four, and Five without prejudice, and denies the motion as to Count Six regarding the guaranty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are unjust enrichment, promissory estoppel, and implied duty of good faith barred by the contract claim? | Plaintiffs may plead alternative theories. | Claims duplicate or conflict with a valid contract. | Counts Three-Five dismissed without prejudice. |
| Is the Manitowoc Company guaranty claim ripe for adjudication? | Guaranty allows direct action against parent. | Contingent to subsidiary liability; not ripe. | Count Six denied; claim deemed ripe. |
Key Cases Cited
- Diamond Center, Inc. v. Leslie's Jewelry Mfg. Corp., 562 F. Supp. 2d 1009 (W.D. Wis. 2008) (supports pleading in the alternative but not where contract validity is disputed)
- Home Valu, Inc. v. Pep Boys, 213 F.3d 960 (7th Cir. 2000) (mutual exclusivity of contract and quasi-contract claims when contract governs)
- American Casual Dining, L.P. v. Moe's Southwest Grill, L.L.C., 426 F. Supp. 2d 1356 (N.D. Ga. 2006) (equitable claims dismissed where valid contract governs relationship)
- Decatur Ventures, LLC v. Stapleton Ventures, Inc., 373 F. Supp. 2d 829 (S.D. Ind. 2005) (unjust enrichment inappropriate when contract exists)
- Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008) (plaintiff pleads itself out when resolving contract vs. non-contract claims)