MEMORANDUM AND ORDER

RICHARD L. VOORHEES, District Judge.

THIS MATTER is before the Court upon Winthrop Resources Corporation's Motion to Dismiss CommScope, Inc. of North Carolina's First Amended Counterclaims III, IV, and V, filed February 27, 2012. (Doc. 19.) Defendant/Counter-Claimant CommScope filed its Memorandum in Opposition on March 15, 2012 (Doc. 20), to which Plaintiff/Counter-Defendant Winthrop filed a reply on March 26, 2012 (Doc. 21).

I. NATURE OF THE CASE

This civil case commenced on December 1, 2011, upon the filing of Winthrop's Complaint in the United States District Court for the Western District of North Carolina seeking a declaratory judgment pursuant to 28 U. S. C. §§ 2201 and 2202. Jurisdiction is proper pursuant to 28 U. S. C. § 1332, and venue is proper pursuant to 28 U.S.C. § 1391(b).

Winthrop is a corporation organized under the laws of the State of Minnesota, with its principal place of business located in Minnesota. (Doc. 1 ¶ 7.) CommScope is a corporation organized and existing under the laws of the State of North Carolina, with a principal place of business located in North Carolina. (Doc. 1 ¶ 8.)

On or about January 28, 2008, Winthrop and CommScope entered into a contract under which Winthrop acquired substantial computer equipment, software and related items selected by CommScope, and then leased the equipment, software and related items to CommScope. (Doc. 1 ¶ 10; Doc. 18 at 3.) The operative Lease Schedule1 structured the payment plan as follows:

(Doc. 1-7 at 2; Doc. 18-1 at 12.) The Contract itself stipulated when the term for any Lease Schedule would commence:

(Doc. 1-1 at 2; Doc. 18-1 at 2.) Also notable is the contract's language regarding payment of taxes:

(Doc. 1-1 at 3; Doc. 18-1 at 3.) Finally, the parties stipulated that their agreement "shall be governed by the internal laws (as opposed to conflicts of law provisions) and decisions of the State of Minnesota." (Doc. 1-1 ¶ 25; Doc. 18-1 at 7.)

Winthrop claims that CommScope was obligated make thirty-six monthly payments of this specified amount from October, 2008, through September, 2011. (Doc. 1 ¶ 16.) CommScope made thirty-five of the monthly lease payments until, on August 25, 2011, it notified Winthrop via letter that it was only required to make twenty-seven payments, at which time it demanded a refund for, what it deemed to be, eight months of overpayments. (Doc. 1 ¶ 18; Doc. 18 at 6.) In responding to CommScope via long-distance discussions and an in-person meeting at CommScope's North Carolina office in November, 2011, Winthrop maintained that CommScope was required to make thirty-six total monthly payments. (Doc. 1 ¶¶ 19-21.)

Winthrop filed its Complaint on December 1, 2011, asserting its entitlement to a judgment declaring CommScope liable for thirty-six total monthly payments and all costs, including attorneys' fees, Winthrop incurred in conducting this lawsuit. (Doc. 1 ¶¶ 15-27.) CommScope's First Amended Answer asserted five counterclaims. (Doc. 18.) Pursuant to Federal Rule of Civil Procedure 12(b)(6), Winthrop has moved to dismiss counterclaims III (Unjust Enrichment), IV (Violation of North Carolina's Unfair and Deceptive Trade Policies Act), and V (Violation of Minnesota's Deceptive Trade Practices Act).

II. STANDARD OF REVIEW

A motion filed per Rule 12(b)(6) challenges the legal sufficiency of a complaint, Jordan v. Alternative Res. Corp., 458 F.3d 332, 338 (4th Cir. 2006), measured by whether it meets the standards stated in Rule 8 (providing general rules of pleading), Rule 9 (providing rules for pleading special matters), Rule 10 (specifying pleading form), Rule 11 (requiring the signing of a pleading and stating its significance), and Rule 12(b)(6) (requiring that a complaint state a claim upon which relief can be granted), Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). While a complaint need not contain detailed factual allegations, the courts require more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (applying Rule 8).

"Federal Rule of Civil Procedure 8(a)(2) requires only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Id. (quoting Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). The decisive standard is that the combined allegations, taken as true, must state a "plausible," not merely conceivable, case for relief. Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010) (Souter, J.) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To have facial plausibility—a standard that lies between the outer boundaries of a probability requirement and the mere possibility of unlawful conduct—the pleading must contain factual content that permits the court, using its "judicial experience and common sense," reasonably to infer the defendant's liability. Id.

III. DISCUSSION

A. Unjust Enrichment

CommScope claims that, as a result of the disagreement regarding the required number of payments, it paid to Winthrop millions of dollars in excess of the principal value of the software and hardware, any sales taxes thereon, and a reasonable, market rate charged by Winthrop to finance acquisition of the software and lease of the software. (Doc. 18 ¶ 84.) Thus, CommScope claims, Winthrop was unjustly enriched by accepting the payments. (Id.) Winthrop responds by asserting that CommScope concedes the presence of a valid contract between the two. (Doc. 19 at 7.) Further, as Winthrop argues, "Minnesota does not allow recovery under an unjust enrichment theory when there is an express contract which governs the parties' relations." Nw. Airlines, Inc. v. Astraea Aviation Servs., Inc., 111 F.3d 1386, 1392 n.4 (8th Cir. 1997) (citing Sharp v. Laubersheimer, 347 N.W.2d 268, 271 (Minn. 1987)).

The pleadings evince both parties' understanding of the existence of a contract. CommScope "admit[ted] that on or about January 28, 2008, it and Winthrop entered into a contract . . . referred to . . . as `Lease Agreement No. CO012808.'" (Doc. 18 at 3.) CommScope further states that "[t]he Lease represents a valid contract between CommScope and Winthrop." (Doc. 18 at 31.)

"It is well settled in Minnesota that one may not seek a remedy in equity when there is an adequate remedy at law." Bartholomew v. Avalon Capital Grp., Inc., 828 F.Supp.2d 1019, 1030 (D. Minn. 2009) (quoting Southtown Plumbing, Inc. v. Har-Ned Lumber Co., 493 N.W.2d 137, 140 (Minn. Ct. App. 1992)); accord Hoy v. Niemela, No. A12-1806, 2013 WL 2926975, at *6 (Minn. Ct. App. June 17, 2013) ("There is no dispute that there was a valid contract between the parties in the form of the purchase agreement. [The plaintiff]'s breach-of-contract claim is evidence of such. [The plaintiff] has an adequate remedy available at law (her breach-of-contract remedy), so she may not also pursue equitable relief. . . ."). Here, while the parties dispute their respective duties under the contract, neither denies its existence. Thus, the possibility of legal remedy for CommScope based on its breach-of-contract claim(s) precludes recovery based on equitable theories.

Further, CommScope cannot plausibly plead unjust enrichment in the alternative where the claim lacks sufficiency on its own. As established above, Minnesota law prohibits recovery under a theory of unjust enrichment in disputes governed by express contracts. Thus, regardless of the outcome of CommScope's breach-of-contract counterclaims, the existence of the contract precludes recovery under an unjust-enrichment theory.

B. North Carolina Unfair and Deceptive Trade Practices

Defendant's counterclaim for unjust enrichment having been dismissed, the transaction at issue is governed by the law of the State of Minnesota.3 Because Defendant's claim under the North Carolina Unfair and Deceptive Trade Practices Act ("UDTPA") has no application to Minnesotan transactions, it shall also be dismissed.

C. Minnesota Deceptive Trade Practices

In the alternative to its claimed violation of the North Carolina Unfair and Deceptive Trade Practices Act, CommScope asserts a violation of Minnesota's Uniform Deceptive Trade Practices Act ("MDTPA"), Minn. Stat. §§ 325D.43-325D.48, which likewise mirrors certain aspects of the Federal Trade Commission Act, 15 U.S.C. §§ 41-58, on deceptive trade acts or practices. Under this statute, a person engages in a deceptive trade practice when

Minn. Stat. § 325D.44(1).

Specifically, CommScope alleges that Winthrop systematically and fraudulently overcharged under the Lease for thirty-six monthly payments when the Lease required only twenty-seven monthly monetary payments, made fraudulent representations regarding the amount owed under the Lease, and wrongly collected amounts for taxes which it had no authority to collect. (Doc. 18 ¶¶ 96-98.)

In Minnesota and elsewhere, a breach of contract, even if done in bad faith, is not a tort. Wild v. Rarig, 234 N.W.2d 775, 790 (Minn. 1975). Rather, "a party is not entitled to recover [in ]tort . . . for a breach of contract, absent an `exceptional case' where the breach of contract constitutes or is accompanied by an independent tort." Cherne Contracting Corp. v. Wausau Ins. Co., 572 N.W.2d 339, 343 (Minn. Ct. App. 1991) (quoting Wild, 234 N.W.2d at 779-80); cf. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 346 (4th Cir. 1998) (addressing North Carolina law). A tort is independent from a breach of contract if "a relationship would exist which would give rise to the legal duty without enforcement of the contract promise itself." Hanks v. Hubbard Broadcasting, Inc., 493 N.W.2d 302, 308 (Minn. Ct. App. 1992). CommScope's statutory tort claim is thus actionable only if the alleged misrepresentations upon which it is based were outside of or collateral to the contract.

Here, obligations relating to the payment schedule are not independent of the contract promise. With regard to Winthrop's interest-rate-related representations allegedly made during the cold calls preceding the formation of the contract, such representations sufficiently regard the terms of the Lease Agreement such that the contract itself staves off the likelihood of deception or misunderstanding stemming from these representations for MDTPA purposes.4

Further, Winthrop's pleadings regarding alleged, post-formation communications encouraging CommScope to wait for hardware deliveries, which allegedly resulted in a delayed "Commencement Date" and overpayment, do not meet the particularity requirement of Federal Rule of Civil Procedure 9(b). The Rule states, "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Federal courts applying Minnesota law have clarified that claims brought pursuant to Minn. Stat. § 325D.44 must be pleaded with such particularity. See, e.g., Coyne's & Co., Inc. v. Enesco, LLC, 565 F.Supp.2d 1027, 1044 (D. Minn. 2008) (quoting Masterson Personnel, Inc. v. The McClatchy Co., No. 05-1274, 2005 WL 3132349, at *5 (D. Minn. Nov. 22, 2005)); cf. Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 629 (4th Cir. 2008) (applying Rule 9(b) not only to claims asserting common-law fraud, but to all allegations having the "substance of fraud"). In order to meet this pleading requirement, a plaintiff must allege the "who, what, when, where and how" for each claim. U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008).

Here, CommScope has inadequately pleaded Winthrop's post-formation encouragement to wait for additional deliveries as "deceptive" under section 325D.44. CommScope has specifically pleaded that it was "encourage[ed] ... to wait for hardware deliveries under CommScope's normal purchasing process, even though such delay resulted in overpayment of over $2,000,000." (Doc. 18 at 36.) CommScope elsewhere alleges that "[a]t no time did Winthrop indicate that this normal purchasing process would result in a complete change in the promised competitive market rate for the overall transaction" (Doc. 18 at 25) and that "Winthrop never disclosed to CommScope that the relatively small amount of hardware added to the transaction at Winthrop's request would result in a dramatic increase in cost for the entire transaction if CommScope followed its normal purchasing process" (Doc. 18 at 30). Winthrop has not pleaded the "who, what, when, where and how" in articulating its claim of deceptive acts or practices.

Having established that Winthrop's alleged misrepresentations were either not sufficiently independent of the underlying contract or not pleaded with sufficient particularity to satisfy the requirements under Rule 9(b), this dispute will be decided by contract law.

IV. ORDER

For all of these reasons, with regards to counterclaims III, IV, and V, Defendant's First Amended Counterclaim fails to state any claim upon which relief may be granted.

IT IS, THEREFORE, ORDERED that Plaintiff/Counter-Defendant's Motion to Dismiss Counterclaims III (Unjust Enrichment), IV (North Carolina Unfair and Deceptive Trade Practices), and V (Minnesota Deceptive Trade Practices) be GRANTED. (Doc. 19.)