Case: 1:20-cv-02295 Document #: 153 Filed: 03/15/21 Page 1 of 16 PageID #:3058
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`SANDEE’S CATERING,
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` Plaintiff,
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` v.
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`AGRI STATS, INC. et al.,
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` Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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` No. 20 C 2295
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` Judge Virginia M. Kendall
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`MEMORANDUM OPINION AND ORDER
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`On October 26, 2020, this Court, while largely upholding Plaintiff’s Complaint, granted
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` )
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`the Joint Defendant’s Motion to Dismiss Plaintiff’s unjust enrichment claims. The Court found
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`that “[b]y failing to clearly state under which laws or which states Plaintiff wishes to bring its
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`unjust enrichment claims, Plaintiff has not met its Rule 8 pleading requirements.” (Dkt. 88 at 24).
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`The Court dismissed Plaintiff’s unjust enrichment claims without prejudice, giving leave to
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`Plaintiff to amend its Complaint, which Plaintiff timely did. The Defendants now move for
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`Judgment on the Pleadings for the unjust enrichment claims in Plaintiff’s Amended Complaint.
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`(Dkt. 91 ¶¶ 208–52). Plaintiff has brought claims under the laws of Arkansas, Arizona, the District
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`of Columbia, Florida, Iowa, Kansas, Maine, Michigan, Minnesota, Mississippi, Missouri,
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`Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota,
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`Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia,
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`and Wisconsin. (Id.). The Court denies the Motion for Judgment on the Pleadings as to all unjust
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`enrichment claims, except those under the laws of Florida and North Dakota, which are dismissed
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`with prejudice.
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`1
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`Case: 1:20-cv-02295 Document #: 153 Filed: 03/15/21 Page 2 of 16 PageID #:3059
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`LEGAL STANDARD
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` A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil
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`Procedure is governed by the same standards as a motion to dismiss for failure to state a claim
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`under Rule 12(b)(6). Adams v. City of Indianapolis, 742 F.3d 720, 727–28 (7th Cir. 2014). The
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`only difference between a motion for judgment on the pleadings and a motion to dismiss is timing;
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`the standard is the same. Federated Mutual Insurance Co. v. Coyle Mechanical Supply Inc., 983
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`F. 3d 307, 313 (7th Cir. 20202). “When a plaintiff moves for judgment on the pleadings, the
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`motion should not be granted unless it appears beyond doubt that the nonmovant cannot prove
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`facts sufficient to support its position, and that the plaintiff is entitled to relief.” Scottsdale Ins.
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`Co. v. Columbia Ins. Grp., Inc., 972 F.3d 915, 919 (7th Cir. 2020). In order to succeed, “the
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`moving party must demonstrate that there are no material issues of fact to be resolved.” Coyle
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`Mechanical Supply Inc., 983 F.3d at 313 (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S.
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`Bend, 163 F.3d 449, 452 (7th Cir. 1998)). As with a motion to dismiss, the Court must determine
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`whether the complaint states a claim to relief that is plausible on its face, drawing all reasonable
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`inferences in the plaintiff’s favor. Gill v. City of Milwaukee, 850 F.3d 335, 339 (7th Cir. 2017)
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`(citations omitted).
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`DISCUSSION
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`The alleged facts in this case have already been discussed at length in this Court’s earlier
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`Memorandum Opinion denying in part the Defendants’ Motion to Dismiss. (See Dkt. 88 at 2–6).
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`Therefore, the Court will focus specifically on the unjust enrichment claims. The Defendants
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`argue generally that Plaintiff has failed to meet the pleading standards required by Fed. R. Civ. P.
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`8. Defendants also argue that Plaintiff has failed to state a claim under specific state laws. For the
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`reasons discussed below, Plaintiff’s unjust enrichment claims may largely proceed.
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`2
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`I.
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`General Pleading Standard
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`The Court previously dismissed Plaintiff’s Unjust Enrichment claims in its Complaint
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`because Plaintiff failed to meet the Rule 8 pleading standards. In particular, Plaintiff failed to
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`clarify under which states it wished to bring unjust enrichment claims. Plaintiff confusingly stated
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`in a footnote in its original Complaint that “[u]njust enrichment claims are alleged herein under
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`the laws of the states for which claims are alleged in Counts Two and Three above,” and only
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`outlined the basic elements of an unjust enrichment claim with no distinction between the various
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`state laws. (Dkt. 1 at p. 76 n. 15). The Court found that Plaintiff’s Complaint failed “to account
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`for any consequential differences that may exist among the undifferentiated state-law claims. The
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`bald assertion that the alleged antitrust conduct violates dozens of non-antitrust laws, or the
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`implication that there are no consequential differences between those laws, is not entitled to
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`deference, because ‘the tenet that a court must accept as true all of the allegations contained in a
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`complaint is inapplicable to legal conclusions.” (Dkt. 88 at 25 citing In re Opana ER Antitrust
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`Litig., 162 F. Supp. 3d 704, 726 (N.D. Ill. 2016) (internal citations omitted)).
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`Defendants now argue that Plaintiff has failed to cure the earlier defects. Plaintiff,
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`however, has followed the Court’s instruction and has separated out its state law unjust enrichment
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`claims, clarifying under which state laws they wish to bring its claims. Defendant faults Plaintiff
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`for repeating language across the unjust enrichment claims of various jurisdictions, seeking to
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`require Plaintiff to further differentiate their claims. This is more than the pleading standards
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`require. Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is
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`entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “fair notice of what the
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`claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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`(2007) (citation omitted). Second, the factual allegations in the complaint must be sufficient to
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`raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs.,
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`Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that
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`offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will
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`not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
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` Here, while Plaintiff may repeat key language throughout the unjust enrichment claims,
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`the Amended Complaint nonetheless meets the Rule 8 pleading standards. It informs Defendants
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`of the cause of action, provides a factual basis for the claim, and raises the possibility of relief. A
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`complaint must be “read sensibly and as a whole,” Engel v. Buchan, 710 F.3d 698, 710 (7th Cir.
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`2013), and while there are repetitions in the Amended Complaint, that may be more a result of the
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`similarities of unjust enrichment laws across jurisdictions, than any pleading deficiencies on the
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`part of Plaintiff. When viewing the Complaint as a whole and reading the unjust enrichment claims
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`together with the factual background, the Complaint adequately alleges unjust enrichment claims
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`across various jurisdictions. The Court denies dismissal on this ground.
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`II.
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`State-Specific Claims
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`Having declined to dismiss on general pleading standards, the Court will now review the
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`merits of state-specific claims. Defendants argue that: (1) unjust enrichment is not a standalone
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`basis for recovery in Mississippi and New Hampshire; (2) Plaintiff has not alleged that it conferred
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`a “direct benefit” as required under the laws of Arizona, Florida, Maine, Michigan, North Carolina,
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`North Dakota, Rhode Island, and Utah; (3) Sandee’s has failed to allege a duty owed to it by
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`Defendants as required under South Carolina law; and (4) Sandee’s fails to allege that it lacks an
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`adequate remedy at law as required under the laws of Arizona, Kansas, Minnesota, Nebraska,
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`Nevada, New Hampshire, North Dakota, South Dakota, Tennessee, and Utah. The Court grants
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`the dismissal as to Florida and North Dakota, but otherwise will allow the unjust enrichment claims
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`to proceed.
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`A.
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`Unjust Enrichment Forms a Standalone Basis for Recovery (MS & NH)
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`Defendants first argue that unjust enrichment does not form a standalone basis for recovery
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`in Mississippi and New Hampshire. As to Mississippi, the authority on whether an unjust
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`enrichment claim may form a standalone basis for recovery is split. As discussed in a similar
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`antitrust case, “with respect to Mississippi, there is considerable authority that supports the
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`existence of an independent state law claim for unjust enrichment.” In re Processed Egg Prod.
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`Antitrust Litig., 851 F. Supp.2d 867, 913 (E.D. Pa. 2012); see also In re Loestrin 24 FE Antitrust
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`Litig, 410 F.Supp.3d 352, 381 (D. R.I. 2019) (“A simple search yields many cases out of the
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`Mississippi Supreme and Appellate Courts within the past decade recognizing unjust enrichment
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`as a cause of action under Mississippi law.”).
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`Yet, while this view is more popular, other courts have reached the opposite conclusion.
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`One court in this district analyzed the issue and found that “‘[u]nder Mississippi law, unjust
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`enrichment is not an independent theory of recovery.’ Such a claim ‘depends upon a showing of
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`some legally cognizable wrong.’” See In re Potash Antitrust Litig., 667 F. Supp. 2d 907, 948
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`(N.D. Ill. 2009), aff’d sub nom. Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012)
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`(citing Cole v. Chevron USA, 554 F.Supp.2d 655, 671–73 (S.D.Miss.2007). In In re Potash, the
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`Court dismissed the unjust enrichment claim, finding that the indirect purchaser plaintiffs had
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`failed to allege any legally cognizable Mississippi claim and therefore could not bring a
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`Mississippi claim. Id. In re Potash is distinguishable because here, Plaintiff has made out an
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`antitrust claim under Mississippi laws. (See Dkt. 88 at 16 – 17, upholding Plaintiff’s Mississippi
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`state antitrust claim). As In re Potash is distinguishable, and because more recent cases have also
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`held that unjust enrichment is a standalone claim in Mississippi, the Court denies the motion to
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`dismiss Plaintiff’s Mississippi unjust enrichment claim.
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`Defendants’ sole authority that New Hampshire does not allow unjust enrichment as a
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`standalone basis for recovery is equally unpersuasive. That case, Gen. Insulation Co. v. Eckman
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`Constr., 992 A.2d 613, 621 (N.H. 5 2010), while surveying the law, stated that “…unjust
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`enrichment generally does not form an independent basis for a cause of action [under New
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`Hampshire law].” (citations omitted) (emphasis added). However, other cases have found an
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`exception for indirect purchaser plaintiffs to bring unjust enrichment claims in New Hampshire as
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`standalone claims. See In re Niaspan Antitrust Litig., 42 F. Supp. 3d 735, 767 (E.D. Pa. 2014)
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`(finding that “courts have allowed indirect purchasers to bring parasitic unjust-enrichment claims
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`based on defendants' violations of New Hampshire's consumer-protection statutes”); In re
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`Chocolate Confectionary Antitrust Case, 749 F. Supp. 2d 224, 240 (M.D. Pa. 2010) (hereinafter
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`“Chocolate Confectionary”) (rejecting dismissal of indirect purchasers’ unjust enrichment claim
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`under New Hampshire law, although finding it may later prevent the plaintiffs from pursuing both
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`equitable and legal recourse for the alleged consumer protection injuries, it imposes no such
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`restriction at the pleading stage.). The Court denies the motion to dismiss Plaintiff’s New
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`Hampshire unjust enrichment claims.
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`B.
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`Plaintiff Sufficiently Alleged that It Conferred a “Direct Benefit” on
`Defendants as Required Under the Laws of Eight States
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`Defendant also challenges Plaintiff’s unjust enrichment claims for Arizona, Florida,
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`Maine, Michigan, North Carolina, North Dakota, Rhode Island, and Utah for failing to sufficiently
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`allege that it conferred a “direct benefit” on Defendants. At issue is the fact that Plaintiff is an
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`indirect purchaser of Defendants’ products. See Dkt 91 ¶ 38 (alleging that Sandee’s “purchased
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`turkey . . . once or more, other than directly from Defendants”). Defendants claim this is not an
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`alleged direct benefit for the purposes of these states’ laws. The Court will look at each state in
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`turn.
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`i.
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`Arizona
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`Defendant cites one case for the proposition that Plaintiff must allege a “direct benefit:”
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`Brown v. Pinnacle Restoration LLC, No. 1 CA-CV 12-0550, 2013 WL 3148654, at *2-*3 (Ariz.
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`Ct. App. June 18, 2013). However, this case did not hold that Plaintiff need allege a “direct
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`benefit,” instead stating that a claim for unjust enrichment requires a showing that the defendant
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`“received a benefit and [that] it is unjust that [the defendant] retain that benefit without being
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`required to compensate plaintiff for the value received.” Id. The case found a benefit was
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`conferred, although it was not directly to the Defendant, which is in line with Sandee’s position.
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`Other cases have held similarly. See In re Auto. Parts Antitrust Litig., 50 F. Supp. 3d 836, 864-65
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`(E.D. Mich. 2014) (under Arizona law the “critical inquiry [i]s not whether the benefit is conferred
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`directly on the defendant, but whether the plaintiff can establish the relationship between his
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`detriment and the defendant’s benefit ‘flow from the challenged conduct’”); In re Packaged
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`Seafood Products Antitrust Litig., 242 F.Supp.3d 1033, 1089 (S.D. Cal. 2017) (hereinafter
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`“Packaged Seafood Products”) (Finding no authority that supports the proposition that Arizona’s
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`unjust enrichment statute requires a direct benefit and concluding it is not a requirement). The
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`Court declines to dismiss this claim.
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`ii.
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`Florida
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`The Florida Supreme Court recently clarified that “to prevail on an unjust enrichment
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`claim, the plaintiff must directly confer a benefit to the defendant.” Kopel v. Kopel, 229 So. 3d
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`812, 818 (Fla. 2017). Other cases post-dating Kopel have upheld this rule accordingly. See
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`Packaged Seafood Products, 242 F. Supp. 3d at 1090; South Broward Hospital District v. ELAP
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`Services, LLP, 20-cv-61007-SINGHAL, 2020 WL 7074645, *6 (S.D. Fla. Dec. 3, 2020). All of
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`Plaintiff’s cited authority pre-date Kopel when there was more ambiguity and are no longer
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`interpreting current Florida law. This claim is dismissed with prejudice.
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`iii. Maine
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`Defendants cite one case for the proposition that Maine law requires a showing of a “direct
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`benefit” to bring an unjust enrichment claim: In re Aftermarket Filters Antitrust Litig., No. 08 C
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`4883, 2010 WL 1416259, at *2- 3 (N.D. Ill. Apr. 1, 2010). Few other cases have held similarly.
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`See e.g. In re Refrigerant Compressors Antitrust Litig., No. 2:09-MD-02042, 2013 WL 1431756,
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`at *25 (E.D. Mich. Apr. 9, 2013) (relying on In re Aftermarket Filters to dismiss Maine unjust
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`enrichment claim after cursory discussion); Rivers v. Amato, No. CIV. A. CV-00-131, 2001 WL
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`1736498 (Me. Super. Ct. June 22, 2001) (“No authority can be found for this ‘indirect benefit’
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`theory, which is, in any case, based on speculation.”). Packaged Seafood Products discussed these
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`cases skeptically but only decided to dismiss because the plaintiff failed to cite any support to deny
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`dismissal. Packaged Seafood Products, 242 F.Supp.3d at 1090–91 (discussing how Maine's
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`unjust-enrichment law does not appear to require conferral of a direct benefit but dismissing
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`because plaintiff failed to cite any cases to the contrary).
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`Here, however, Plaintiff has cited authority that discusses these cases at length and
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`determines that Maine’s unjust enrichment laws do not require a showing of a direct benefit. See
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`In re TFT-LCD (Flat Panel) Antitrust Litig., No. M-07-1827 SI, 2011 WL 4501223, at *10-11
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`(N.D. Cal. Sept. 28, 2011) (upholding indirect purchaser Maine unjust enrichment claim and
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`discussing Rivers before finding it unpersuasive); Chocolate Confectionary, 749 F. Supp. 2d at
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`243 (upholding indirect purchaser unjust enrichment claims and finding that there was not “any
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`specific authority holding that an indirect purchaser may not measure its recovery by the
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`8
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`defendant's illicit benefit”). In light of this, Plaintiff’s authority is more compelling. The Court
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`denies the motion to dismiss as to Maine.
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`iv. Michigan
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`Defendants cite A & M Supply Co. v. Microsoft Corp., No. 274164, 2008 WL 540883, at
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`*2 (Mich. Ct. App. Feb. 28, 2008), for the proposition that Michigan requires a direct benefit be
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`alleged. A & M Supply Co. was discussed by the court in Packaged Seafood Products, 242 F.
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`Supp 3d at 1091, which referred to it as “an unpublished Michigan appellate case upholding a
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`denial of amendment for non-unjust-enrichment-specific reasons, and concluding in the alternative
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`that the trial court's dismissal was proper because in the context of indirect-purchaser suit
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`“the unjust enrichment doctrine does not apply....” (internal citations omitted). And as discussed
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`by the Packaged Seafood Products court, the Michigan Supreme Court has explicitly allowed at
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`least one unjust enrichment claim based on conferral of an indirect benefit. Id. (citing Kammer
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`Asphalt Paving Co. v. E. China Twp. Sch., 443 Mich. 176, 504 N.W.2d 635, 641 (1993)).
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`Not to mention, Packaged Seafood Products is not the only case to allow a Michigan unjust
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`enrichment case to proceed, despite an indirect benefit. See In re Auto. Parts Antitrust Litig., 29
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`F. Supp. 3d 982, 1020-21 (E.D. Mich. 2014); In re Suboxone (Buprenorphine Hydrochloride and
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`Naloxone) Antitrust Litig., 64 F.Supp.3d 665, 706 (E.D. Pa. 2014). The Court denies the motion
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`to dismiss this claim.
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`v.
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`North Carolina
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`Defendants further argue that North Carolina requires the conferral of a direct benefit.
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`Defendants cite one unpublished opinion from the North Carolina Court of Appeals that states the
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`“Court has limited the scope of a claim of unjust enrichment such that the benefit conferred must
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`be conferred directly from plaintiff to defendant, not through a third party.” Baker Constr. Co. v.
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`City of Burlington, No. COA09-13, 2009 WL 3350747, at *6 (N.C. Ct. App. Oct. 20, 2009).
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`However, as discussed by the court in Packaged Seafood Products, many Courts disagree with
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`this interpretation, and the North Carolina Supreme Court has never adopted the direct benefit
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`language. 242 F. Supp 3d at 1091-92 (citations omitted). Allowing indirect benefit claims to
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`proceed under North Carolina unjust enrichment law is the majority view. See e.g. In re Processed
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`Egg Products Antitrust Litig., 851 F.Supp.2d 867, 930–32 (E.D. Pa. 2012) (conducting thorough
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`analysis of North Carolina law and concluding same); In re Lidoderm Antitrust Litig., 103
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`F.Supp.3d 1155, 1178 (N.D. Cal. 2015) (same). The Court denies dismissal of this claim.
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`vi.
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`North Dakota
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`Defendants cite one case, McColl Farms, LLC v. Pflaum, 837 N.W.2d 359, 367 (N.D.
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`2013) to argue that North Dakota requires pleading a direct benefit. The bulk of the authority
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`supports Defendants’ position that that indirect purchaser allegations are insufficient to establish
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`a “direct benefit” under North Dakota law. See, e.g., In re Lidoderm, 103 F.Supp. 3d at 1179; In
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`re DDAVP Indirect Purchaser Antitrust Litig., 903 F.Supp.2d 198, 235 (S.D.N.Y.2012)
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`(“Plaintiffs have not and cannot plead a direct benefit of the kind that North Dakota law requires—
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`in other words, something akin to an arms-length transaction between the Indirect Purchaser
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`Plaintiffs and Defendants is required to state a claim.”); In re TFT–LCD (Flat Panel) Antitrust
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`Litig., 599 F.Supp.2d at 1191 (finding that the “broader language of Apache suggests that a ‘direct
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`benefit’ is required under North Dakota law...”); In re Relafen Antitrust Litig., 225 F.R.D. 14, 28
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`(D.Mass. 2004) (“Here, the benefits that SmithKline received were obtained most directly from
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`wholesalers, who, in turn, obtained benefits from end payors. Because [North Dakota] precedent
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`casts doubt on the end payors' unjust enrichment claims,” they were dismissed). The one recent
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`case that Plaintiff cites, In re Auto. Parts Antitrust Litig., No. 12-md-02311, 2014 WL 2993753,
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`at *35 (E.D. Mich. July 3, 2014), does not directly discuss whether pleading a direct benefit is
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`required. Given this, Plaintiff’s North Dakota’s claims are dismissed.
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`vii.
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`Rhode Island
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`The majority of cases the Court has reviewed have found that Rhode Island does not require
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`a conferral of a direct benefit to state an unjust enrichment claim. Packaged Seafood Products,
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`242 F. Supp 3d at 1092 (finding the one case cited by the defendants did not support this
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`proposition and encountering no cases to the contrary); In re Loestrin 24 FE Antitrust Litig., 410
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`F.Supp.3d at 383 (finding Rhode Island does not require pleading a direct benefit and in the few
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`cases cited by the defendant did not support the proposition); In re Auto. Parts Antitrust Litig., 50
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`F. Supp.3d at 898 (same); In re TFT–LCD (Flat Panel) Antitrust Litig., M 07–1827 SI, 2011 WL
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`4501223 (N.D. Cal. Sept. 28, 2011) (same). Defendants here have only cited Alessi v. Bowen
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`Court Condo., No. 03-0235, 2010 WL 897246, at *4 (R.I. Super. Ct. Mar. 10, 2010), but in this
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`case the question was whether any benefit was conferred, not whether it was conferred indirectly.
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`See In re Loestrin 24 FE Antitrust Litig., 410 F.Supp.3d at 383 (discussing Alessi and finding it
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`does not support the proposition that Rhode Island requires a direct benefit). The Court denies the
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`motion to dismiss this claim.
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`viii. Utah
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`Finally, the Court declines to dismiss Plaintiff’s Utah unjust enrichment claim for failure
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`to allege a direct benefit. Defendants’ cite one case, Jones v. Mackey Price Thompson & Ostler,
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`355 P.3d 1000, 1018 (Utah 2015), for this proposition. It is true that a long line of Utah cases have
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`held that there must be a “direct benefit.” See Concrete Prod. Co., a Div. of Gibbons & Reed v.
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`Salt Lake Cty., 734 P.2d 910, 911–12 (Utah 1987 (finding a third-party unjust enrichment claim
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`was impermissible, in part, because “[n]o direct benefit...[wa]s present....”).
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`However, these cases have not distinguished between a direct and indirect benefit, and
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`instead have only distinguished a direct and incidental benefit. Emergency Physicians Integrated
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`Care v. Salt Lake Cty., 167 P.3d 1080, 1086 (Utah 2000) (“While unjust enrichment does not result
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`if the defendant has received only an incidental benefit from the plaintiff's service,...this court has
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`found that a large variety of items fall under the definition of ‘benefit,’ including an ‘interest in
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`money, land, chattels, or choses in action; beneficial services conferred; satisfaction of a debt or
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`duty owed by [the defendant]; or anything which adds to [the defendant's] security or advantage.’”
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`(citations omitted) (alterations in original)); Jeffs v. Stubbs, 970 P.2d 1234, 1248 (Utah 1998)
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`(“Nor are services performed by the plaintiff for his own advantage, and from which the defendant
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`benefits incidentally, recoverable.”). Other district courts that have confronted this issue have
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`found similarly, deciding that the antitrust injury alleged was a direct, and not incidental benefit
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`under Utah law. See e.g. Packaged Seafood Products, 242 F. Supp. 3d at 1092–93; In re Processed
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`Egg Antitrust Litig., 851 F.Supp.2d at 932; In re Auto. Parts Antitrust Litig., 29 F.Supp.3d at 1027–
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`28. Without any persuasive authority that directly decides whether an indirect benefit may
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`proceed, the Court denies the motion to dismiss this claim.
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`C.
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`Alleging a Duty Is Not Required Under South Carolina Unjust Enrichment
`Law
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`Defendants additionally argue that Sandee’s claim for unjust enrichment under South
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`Carolina law should be dismissed because it does not allege that any Defendant owed it a duty.
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`The basic requirements for an unjust-enrichment claim under South Carolina law are: “(1) a
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`benefit conferred upon the defendant by the plaintiff; (2) realization of that benefit by the
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`defendant; and (3) retention by defendant of the benefit under conditions that make it inequitable
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`for him to retain it without paying its value.” Ellis v. Smith Grading & Paving, Inc., 294 S.C. 470,
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`366 S.E.2d 12, 15 (S.C. App. 1988). Defendants cite three cases to support their contention: In
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`re Microsoft Corp. Antitrust Litig., 401 F. Supp.2d 461, 464 (D. Md. 2005) (applying South
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`Carolina law and dismissing the unjust enrichment claim for failing to “establish the existence of
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`a duty owed to him or her by the defendant”); Pitts v. Jackson Nat’l Life Ins. Co., 574 S.E.2d 502,
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`511-12 (S.C. Ct. App. 2002) (denying unjust enrichment where Plaintiff “failed to establish any
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`duty to disclose”); and Ellis, 366 S.E.2d at 15 (finding trial court should have granted motion to
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`dismiss based on failure to allege a breach by the defendant of “a duty giving rise to a quasi-
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`contractual right to restitution”).
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` However, the majority of cases the Court has found have ruled that a duty need not be
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`alleged and have squarely rejected Defendants’ interpretation of their cited cases. See e.g. In re
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`Auto. Parts Antitrust Litig., 29 F.Supp.3d at 1026 (finding there is no requirement to allege the
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`existence of a duty under South Carolina law and distinguishing Ellis); In re Pork Antitrust Litig.,
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`Civil Nos. 18-1776, 19-1578, and 19-2723 (JRT/LIB), 2020 WL 6149666, *29 (D. Minn. Oct. 20,
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`2020) (finding duty is not owed under South Carolina and finding In re Microsoft Corp. Antitrust
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`Litig. and Pitts were based upon a misinterpretation of South Carolina law); Los Gatos Mercantile,
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`Inc. v. E.I. DuPont De Nemours and Co., No. 13–cv–01180–BLF, 2015 WL 4755335, *30 (N.D.
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`Cal. Aug. 11, 2015) (discussing Pitts and finding no requirement to allege duty in South Carolina
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`law); In re Cast Iron Soil Pipe & Fittings Antitrust Litig., No. 1:14–md–2508, 2015 WL 5166014,
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`*37 (E.D. Tenn. June 24, 2015) (discussing Ellis, Pitts, and In re Microsoft Corp. Antitrust Litig
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`and deciding that alleging a duty is not a requirement in South Carolina to state an unjust
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`enrichment claim) . The thorough analysis of South Carolina unjust enrichment law performed by
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`these courts is persuasive. The Court denies the motion to dismiss Plaintiff’s South Carolina unjust
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`enrichment claim.
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`D.
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`Sandee’s Does Not Need to Allege That It Lacks an Adequate Remedy at
`Law Under the Laws of Ten States
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`Finally, Defendants move for judgment on the pleadings arguing that Sandee’s fails to
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`allege that it lacks an adequate remedy at law as required under the laws of ten states: Arizona,
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`Kansas, Minnesota, Nebraska, Nevada, New Hampshire, North Dakota, South Dakota, Tennessee,
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`and Utah. The Court need not analyze each state’s laws. Other Courts that have confronted this
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`identical argument have refused to dismiss on these grounds at the pleading stage, finding that
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`Rule 8(d)(2)’s permissiveness allows for pleading in the alternative. In re Pork Antitrust Litig.,
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`2020 WL 6149666, at *29 (discussing how courts have affirmed a plaintiff's right to plead unjust
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`enrichment as an alternative to other legal remedies); In re Generic Pharm. Pricing Antitrust Litig.,
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`368 F. Supp. 3d 814, 851 (E.D.Pa. 2019) (refusing to dismiss plaintiff's unjust enrichment claim
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`because it failed to specifically allege a lack of legal remedy, citing Rule 8(d)(2)'s
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`“permissiveness” of pleading in the alternative); In re Auto. Parts Antitrust Litig., 50 F.Supp.3d at
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`867 (collecting cases and finding pleading in the alternative viable at the dismissal stage); In re
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`Santa Fe Natural Tobacco Co. Marketing & Sales Practices & Product Liability Litig., 288
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`F.Supp.3d 1087, 1258 (D. N.M. 2017) (collecting cases and finding under Rule 8(d), the Court
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`would not dismiss the Plaintiffs' equitable claims at this stage because Rule 8(d)(3)'s plain
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`language allows them); In re Dial Complete Marketing and Sales Practices Litig., No. 11–md–
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`2263–SM, 2013 WL 1222310, at *8–9 (D. N.H. Mar. 26, 2013) (“[C]onsistent with Federal Rules,
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`Plaintiffs have simply pled their claims in the alternative ... the mere fact that plaintiffs have pled
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`arguable inconsistent theories is not, standing alone, a sufficient basis to dismiss one of those
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`claims.”); In re Light Cigarettes Marketing Sales Practices Litig., 751 F.Supp.2d 183, 192 (D. Me.
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`2010) (“At this stage, the Plaintiffs may assert multiple and duplicative legal and equitable claims
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`for relief.”); Los Gatos Mercantile, Inc., 2015 WL 4755335, at *29 (Plaintiff did not dispute that
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`states laws in question provided for an unjust enrichment recovery only when there is no available
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`remedy at law but Court found that the unjust enrichment claims may proceed in the alternative).
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`In the alternative, other courts that have looked at whether an adequate remedy is a requisite
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`under the above states’ laws have found this unavailing. In re Auto. Parts, 29 F.Supp.3d at 1015–
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`28 (finding that pleading a lack of adequate remedy at law not required for Arizona, Massachusetts,
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`Minnesota, North Dakota, and Tennessee); Unicredit Bank AG v. Bucheli, No. 10-2436-JWL, 2011
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`WL 4036466, at *3 (D. Kan. Sept. 12, 2011) (declining to dismiss an unjust enrichment claim for
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`Kansas and noting that Nelson v. Nelson, 288 Kan. 570, 597 (2009), Defendants’ cited case, “does
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`not include as an element the lack of an adequate legal remedy”); Sheet Metal Workers Local 441
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`Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F. Supp.2d 380, 429 (E.D. Pa. 2010)
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`(declining to dismiss Minnesota, Nevada, and North Dakota unjust enrichment claims for failure
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`to plead an adequate remedy at law); In re Wal-Mart Wage & Hour Employment Practices Litig.,
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`490 F. Supp. 2d 1091, 1124 (D. Nev. 2007) (declining to dismiss Nebraska unjust enrichment
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`claim when pled in alternative); Chocolate Confectionary, 749 F. Supp.2d at 240 (declining to
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`dismiss New Hampshire unjust enrichment claim pled in the alternative “[a]lthough this may later
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`prevent the IEU plaintiffs from pursuing both equitable and legal recourse for the alleged consumer
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`protection injuries, it imposes no such restriction at the pleading stage”); In re Processed Egg
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`Prod. Antitrust Litig., 851 F. Supp.2d at 915 (“[T]he absence of an adequate remedy at law is not
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`an element of the prima facie case for unjust enrichment under the laws of 9 of the jurisdictions at
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`issue—Florida, Massachusetts, Minnesota, Nevada, New Mexico, North Carolina, South Dakota,
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`Utah, and Vermont.”). The Court denies the motion to dismiss Sandee’s unjust enrichment claims
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`under the laws of Arizona, Kansas, Minnesota, Nebraska, Nevada, New Hampshire, North Dakota,
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`South Dakota, Tennessee, and Utah because of Rule 8’s permissive pleading standards and because
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`pleading an adequate remedy at law is not a required element of the states’ laws.
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`CONCLUSION
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`For the foregoing reasons, the Court denies the