Pietoso, Inc. v. Republic Services, Inc., 4 F.4th 620

Pietoso, Inc. (d/b/a Café Napoli) entered a 36‑month, automatically renewing waste‑removal contract (April 2011) with Allied/Republic: basic service $323/month for four pickups; early termination (except for defendant breach) triggers liquidated damages.
Contract allowed Defendants to raise the basic‑service rate unilaterally for five enumerated cost reasons ("Unilateral Reason") or for other reasons only with Pietoso’s consent ("Optional Reason"); consent could be shown "verbally, in writing or by the parties’ actions and practices." Pietoso could refuse Optional Reason increases without contract penalty.
From 2011–2018 Defendants repeatedly increased the basic rate from $323 to $870.25; invoices presented the increases as amounts due (consistent with Unilateral Reason), and Pietoso paid monthly for ~8 years.
In early 2019 Defendants offered to cut Pietoso’s rate to $280, prompting Pietoso to suspect prior increases actually were Optional Reasons imposed without consent; Pietoso terminated and filed a putative nationwide class breach‑of‑contract suit.
Defendants moved to dismiss under Rule 12(b)(6) arguing Pietoso’s long‑term payments manifested consent by conduct; the district court dismissed with prejudice. The Eighth Circuit reversed as to the breach claim and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Pietoso plausibly pleaded breach because Defendants imposed Optional‑Reason increases without Pietoso’s consent	Pietoso alleges invoices always presented increases as Unilateral Reason amounts due; it paid because it reasonably believed it had to, not because it consented	Pietoso’s repeated awareness of and payment of increases for ~8 years manifested assent by the parties’ "actions and practices," so no breach	Reversed: at pleading stage payments are ambiguous; given contract language and circumstances, payments do not conclusively show consent, so breach claim survives dismissal
Whether the district court properly dismissed with prejudice and denied Pietoso’s motion to alter or amend	Pietoso argued dismissal was wrong because factual ambiguity about consent precluded dismissal	Defendants argued dismissal appropriate because payments showed consent as a matter of law	Court reversed dismissal; because reversal affects remedy, appeal of denial to alter/amend is moot and case remanded for further proceedings

Trone Health Servs., Inc. v. Express Scripts Holding Co., 974 F.3d 845 (8th Cir. 2020) (standard for reviewing Rule 12(b)(6) dismissal)
Soueidan v. St. Louis Univ., 926 F.3d 1029 (8th Cir. 2019) (pleading standards and use of complaint exhibits)
WireCo WorldGroup, Inc. v. Liberty Mut. Fire Ins., 897 F.3d 987 (8th Cir. 2018) (elements of Missouri breach‑of‑contract claim)
Keveney v. Mo. Mil. Acad., 304 S.W.3d 98 (Mo. 2010) (Missouri law on contract elements)
Maples v. United Sav. & Loan Ass’n, 686 S.W.2d 525 (Mo. Ct. App. 1985) (assent may be inferred from parties’ conduct)
Silver Dollar City, Inc. v. Kitsmiller Constr. Co., 931 S.W.2d 909 (Mo. Ct. App. 1996) (consent by conduct judged by what a reasonably prudent person would infer)
Zumwinkel v. Leggett, 345 S.W.2d 89 (Mo. 1961) (ambiguous conduct insufficient to show consent)
Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706 (8th Cir. 2001) (presumption that parties contracted with established law in mind)
Paolella v. Browning‑Ferris, Inc., 973 F. Supp. 508 (E.D. Pa. 1997) (contextual observation about unwillingness to knowingly consent to economic gouging)