United States District Court, S.D. Georgia, Augusta Division
FP AUGUSTA II, LLC, and FREEDOM'S PATH LIMITED PARTNERSHIP, Plaintiffs,
CORE CONSTRUCTION SERVICES, LLC, Defendant.
RANDAL HALL, CHIEF JUDGE
the Court is Plaintiffs FP Augusta II, LLC and Freedom's
Path Limited Partnership's motion to dismiss Defendant
Core Construction Services, LLC's counterclaim. (Doc.
21.) The motion seeks dismissal of Counts III and IV of the
counterclaim. The motion is denied for the following reasons.
case arises out of construction and renovation work on the
Charlie Norwood Veterans Administration Campus in Augusta,
Georgia (the "Project"). Plaintiffs contracted with
Defendant across two contracts for Defendant to conduct
renovations on the Project. Plaintiffs filed suit alleging
that Defendant breached both contracts for essentially
failing to perform the contracted-for work on time and up to
specification. (Compl., Doc, 1-1, at 2-7.)
counterclaimed, asserting in Counts I and II that Plaintiffs
were the ones who had breached and in Counts III and IV that
Plaintiffs were unjustly enriched. (Answer, Affim. Defenses,
Countercl., Doc. 7, at 14-16.) Now before the Court is
Plaintiffs' motion to dismiss Counts III and IV of the
counterclaim under Federal Rule of Civil Procedure 12(b)(6).
treat counterclaims like complaints for purposes of Rule
12(b)(6) motions. See, e.g., United States v.
Jallali, 478 Fed.Appx. 578, 579-80 (11th Cir. 2012);
see also Tenn. Valley Auth. v. Long, No.
4:12-CV-704-VEH, 2012 WL 2862044, at *2 n.l (N.D. Ala. July
9, 2012) ("A counterclaim is treated under the same
motion to dismiss standards as a complaint."). A motion
to dismiss a counterclaim does not test whether the claimant
will ultimately prevail on the merits of the case. Rather, it
tests the legal sufficiency of the pleading. Scheur v.
Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Davis v. Scherer, 468 U.S. 183, 191 (1984).
Therefore, the Court must accept as true all facts alleged in
the counterclaim and construe all reasonable inferences in
the light most favorable to the counterclaimant. See
Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir.
2002). The Court, however, need not accept the pleading's
legal conclusions as true, only its well-pleaded facts.
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009).
counterclaim must "contain sufficient factual matter,
accepted as true, 'to state a claim to relief that is
plausible on its face.'" Id. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)) . The counterclaimant is required to plead
"factual content that allows the court to draw the
reasonable inference that the [counter]defendant is liable
for the misconduct alleged." Id. Although there
is no probability requirement at the pleading stage,
"something beyond [a] mere possibility . . . must be
alleged." Twombly, 550 U.S. at 557-58 (citing
Durma Pharm., Inc. v. Broudo, 544 U.S. 336, 347
(2005)). When, however, based on a dispositive issue of law,
no construction of the factual allegations of the
counterclaim will support the cause of action, dismissal is
appropriate. See Exec. 100, Inc. v. Martin Cty., 922
F.2d 1536, 1539 (11th Cir. 1991).
move to dismiss Counts III and IV of the counterclaim on the
grounds that under Georgia law, unjust enrichment is not
available when a legal contract between the parties is
alleged to exist. Although this principle is correct, the law
on the issue is more nuanced when applied at the pleading
stage and bears further exploration.
may plead unjust enrichment as an alternative to breach of
contract but cannot recover on both theories. See Terril
v. Electrolux Home Prods., Inc., 753 F.Supp.2d 1272,
1291 (S.D. Ga. 2010) (stating that "[a] plaintiff may
plead inconsistent remedies, even if the plaintiff may not
recover both" in the context of breach of contract and
unjust enrichment claims). However, a party may not plead
equitable claims in the alternative unless the parties
contest the existence of an express contract governing the
subject matter of the dispute. See Goldstein v. Home
Depot U.S.A., Inc., 609 F.Supp.2d 1340, 1347 (N.D.Ga.
2009) . A party may likewise plead an equitable theory if it
alleges that the beneficiary received a benefit outside the
scope of an express contract. See Ballard Marine Constr.,
Inc. v. CDM Constructors., Inc., CV 417-118, 2018 WL
3090393 at *3 (S.D. Ga. 2018) (finding that a plaintiff
states a cause of action for unjust enrichment when it
alleges the defendant received a benefit outside the scope of
an acknowledged contract).
courts have found that when a claim for equitable relief
reincorporates an allegation that a contract exists, the
acknowledgment of the contract causes the equitable claim to
fail because in such cases there is no dispute as to the
existence of a contract. See Am. Casual Dining, L.P. v.
Moe's Sw. Grill, L.L.C., 426 F.Supp.2d 1356, 1372
(N.D.Ga. 2006) (M [O]ne cannot claim within a
single count that there was an agreement and that the
[defendant] was unjustly enriched.");
Goldstein, 609 F.Supp.2d at 1347 (dismissing
equitable claim when plaintiff incorporated into equitable
claim allegations that plaintiff and defendant had entered
into contract); Gilbert v. Powell, 301 S.E.2d 683,
686 (Ga.Ct.App. 1983) (upholding trial court's decision
to strike claim for equitable relief when that claim
acknowledged an express contract).
this background the Court turns to the case at hand. Counts
III and IV of Defendant's counterclaim are carefully
pleaded to state claims for unjust enrichment, and
specifically seek compensation for work performed by
Defendant pursuant to change orders outside the scope of the
express contracts. Counts III and IV do not reference any
contract between Plaintiffs and Defendant. Rather, these
counts are appropriately pleaded as alternatives to the
claims in Counts I and II made under the express contracts.
Accordingly, they need not be dismissed at this stage.