R. BARCLAY SURRICK, District Judge.
Presently before the Court is Defendant's Motion to Dismiss. (ECF No. 3.) For the following reasons, Defendant's Motion will be denied.
In this two-count Complaint, Plaintiffs Hunter Kitchen & Bath, LLC and Chadwick Hunter assert claims for breach of contract (Count 1) and unjust enrichment (Count 2) against Defendant R.D. Henry & Company, LLC. Plaintiffs seek damages in the amount of $312,500, plus interest, costs, and attorney's fees. (Compl. 6-7, Notice of Removal Ex. A, ECF No. 1.)
Defendant builds and sells custom cabinets for businesses to install. (Id. ¶¶ 3, 7.) Plaintiffs sell and install custom kitchens and bathrooms in homes. (Id. ¶¶ 1-4.) From about December of 2015 until May of 2019, Plaintiffs purchased approximately $377,900 worth of custom cabinets from Defendant. (Id. ¶¶ 7, 10.) Plaintiffs installed Defendant's cabinets for homeowners. (Id. ¶ 7.) When Plaintiffs began purchasing Defendant's cabinets, Defendant provided Plaintiffs with a Specification Book ("Spec Book"). (Id. ¶ 8.) The terms and conditions of Plaintiffs' purchases were included in the Spec Book, which Defendant updated periodically. (Id. ¶¶ 8-9.) In the Spec Book, Defendant included a warranty for workmanlike product and warranties that it would remedy defects in its cabinets. (Id. ¶¶ 8, 29.) Defendant also provided Plaintiffs with product samples to show homeowners. (Id. ¶ 13a.)
Starting around July 15, 2017, Plaintiffs noticed a decline in the quality of the materials and workmanship in Defendant's cabinets. (Id. ¶¶ 12-13.) Defendant's cabinets did not conform to the specifications of the samples, in terms of color, finish, and shelving. (Id. ¶¶ 13, 19.) Defendant did not remedy the nonconformities. (Id. ¶ 31.) Plaintiffs took their own time to fix these nonconformities, resulting in project delays, unforeseen expenses, and homeowner dissatisfaction. (Id. ¶¶ 14-15, 20.)
Around this time, Plaintiffs also noticed problems with the delivery of Defendant's cabinets. (Id. ¶¶ 13-18.) Defendant's cabinets arrived damaged. (Id. ¶ 13.) Plaintiffs took time to repair or replace the damaged cabinets, resulting in project delays, unforeseen expenses, and homeowner dissatisfaction. (Id. ¶¶ 13-15.) Defendant's cabinets arrived late, also resulting in project delays and homeowner dissatisfaction. (Id. ¶¶ 16-18.)
Homeowner dissatisfaction impacted Plaintiffs financially. Plaintiffs had to offer discounts on their services, and they lost multiple referral sources. (Id. ¶¶ 21-23.) Plaintiffs relied on recommendations and referrals from satisfied homeowners, contractors, and architects for new business leads. (Id. ¶¶ 5-6.) As a result of Defendant's conduct, Plaintiffs incurred damages in the amount of $312,500. (Id. ¶ 24.)
Plaintiffs' Complaint does not explain why, in light of these issues, Plaintiffs continued to purchase Defendant's cabinets until May of 2019.
On August 22, 2019, Plaintiffs filed a Praecipe for Writ of Summons in the Court of Common Pleas of Chester County, Pennsylvania. (Plfs.' Resp. Ex. A, ECF No. 7.) On August 27, 2019, Plaintiffs caused the Writ of Summons to be served on Defendant. (Id. at Ex. B.) On September 4, 2019, Defendant was served with the Writ of Summons. (Id. at Ex. C.)
Under Rule 12(b)(6), failure to state a claim upon which relief can be granted is a basis for dismissal of the complaint. Fed. R. Civ. P. 12(b)(6). To satisfy the Rule 12(b)(6) standard, the complaint must "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler, 578 F.3d at 211. This "`does not impose a probability requirement at the pleading stage,' but instead `simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence' of the necessary element." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). "A complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009).
Plaintiffs allege that from about July 15, 2017 through May of 2019, Defendant breached its contractual duties to Plaintiffs to provide conforming cabinets on time and to remedy any defects. In the alternative, Plaintiffs allege that Defendant was unjustly enriched when Plaintiffs purchased Defendant's cabinets in reliance on Defendant's false assurances.
Defendant seeks dismissal of both claims. Defendant also argues that attorney's fees are not an appropriate remedy. Plaintiffs oppose dismissal and also contend that Defendant's Notice of Removal was untimely. We address the issues raised by the parties in the following order: (1) removal; (2) breach of contract; (3) unjust enrichment; (4) attorney's fees.
In response to Defendant's Motion to Dismiss, Plaintiffs argue that Defendant's Notice of Removal was untimely under 28 U.S.C. § 1446(b) because it was filed more than thirty days after Defendant was served with the Writ of Summons. (Plfs.' Resp. 4.) Plaintiffs are simply wrong.
The statute addressing the notice of removal provides:
28 U.S.C. § 1446(b)(1). In 2005, the Third Circuit held that "a writ of summons alone can no longer be the `initial pleading' that triggers the 30-day period for removal under the first paragraph of 28 U.S.C. § 1446(b)." Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 223 (3d Cir. 2005). The Court explained its reasoning as follows: "The model form for a general writ of summons under Pennsylvania law merely contains the plaintiff's name, the defendant's name, and notice that an action has been commenced, with the county, the date, the name of the prothonotary or clerk, and the deputy. This is insufficient to notify the defendant `what the action is about.'" Id. (internal citation omitted); see e.g., Polanco v. Coneqtec Universal, 474 F.Supp.2d 735, 737 (E.D. Pa. 2007) ("Where, as here, defendants are served with a summons and the complaint is filed at a later date, the thirty day period commences from the time the defendants received a copy of the complaint. The initial pleading described in § 1446(b) is the complaint, not the summons, praecipe for writ of summons, or some other document like a Civil Cover Sheet." (citing Sikirica, 416 F.3d at 222)).
Defendant timely filed its Notice of Removal. Under Sikirica, the "initial pleading" was the Complaint, not the Writ of Summons. Since the Complaint was not served on Defendant until November 19, 2019, Defendant's December 18, 2019 Notice of Removal was filed within the 30-day period allowed under 28 U.S.C. § 1446(b).
Under Pennsylvania law, a breach of contract claim has three elements: "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. Ct. 2004) (internal quotation marks and citation omitted).
Defendant points out that Plaintiffs did not attach the Spec Book to the Complaint. (Def.'s Mot. 2.) Pennsylvania Rule of Civil Procedure 1019(i) requires plaintiffs asserting breach of contract claims to attach written contracts to their complaints: "When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing." Pa. R. Civ. P. 1019(i). However, Pennsylvania Rules of Civil Procedure do not apply here. "Not only does the Pennsylvania standard not apply in federal court, Defendant overlooks the fact that it deprived itself of the protections afforded by Pennsylvania Rule 1019(i) by removing this action to federal court." Transp. Int'l Pool, Inc. v. Ross Stores, Inc., No. 06-1812, 2009 U.S. Dist. LEXIS 32424, at *8 n.1 (E.D. Pa. Apr. 15, 2009).
Defendant also argues that Plaintiffs failed to plead sufficiently definite terms of the alleged contract. (Def.'s Mot. 6.) We disagree.
"When a plaintiff pleads a contract according to its legal effect, the complaint does not need to resort to formulaic recitation of the elements of the alleged contract; rather, the complaint must allege facts sufficient to place the defendant on notice of the contract claim in such a way that the defendant can reasonably respond." Transp. Int'l Pool, Inc., 2009 U.S. Dist. LEXIS 32424, at *9. "Common sense dictates that when retailers obtain products from manufacturers to sell to their customers, the transaction is pursuant to a contract." DeFebo v. Andersen Windows, Inc., No. 09-2993, 2009 U.S. Dist. LEXIS 87889, at *14 (E.D. Pa. Sep. 24, 2009). "Any further details of the contract and the transactions at issue are fair ground for discovery. Should such discovery fail to reveal the existence of a viable breach of contract claim, [d]efendant[] may seek summary judgment." Guzzi v. Morano, No. 10-1112, 2011 U.S. Dist. LEXIS 115496, at *35 (E.D. Pa. Oct. 6, 2011).
Plaintiffs' Complaint contains factual allegations sufficient to support all three elements of a breach of contract claim. With regard to the first element—the existence of a contract and its essential terms—Plaintiffs allege that they purchased custom cabinets from Defendant, pursuant to samples provided by Defendant and Defendant's Spec Book, which contained warranties that Defendant would remedy any product defects. Plaintiffs also allege that Defendant assured Plaintiffs of certain delivery times. With regard to the second element—a breach of duty imposed by the contract—Plaintiffs allege that for about two years the cabinets that they purchased from Defendant did not conform to the samples Defendant provided and that Defendant did not remedy the nonconformities. Plaintiffs also allege that Defendant's products arrived late or damaged. With regard to the third element—resultant damages—Plaintiffs allege that they sustained damages as a result: Plaintiffs incurred unforeseen expenses in fixing the cabinets, and they discounted their services and lost multiple referral sources because of customer dissatisfaction caused by Defendant's defective, damaged, or delayed cabinets.
Defendant also argues that the breach of contract claim asserted by Chadwick Hunter is legally insufficient because the Complaint does not allege specifically that Chadwick Hunter intended to be bound by a contract with Defendant.
Under Pennsylvania law, to state a claim for unjust enrichment, plaintiffs must allege "benefits conferred on one party by another, appreciation of such benefits by the recipient, and acceptance and retention of these benefits under such circumstances that it would be inequitable [or unjust] for the recipient to retain the benefits without payment of value." Allegheny Gen. Hosp. v. Philip Morris, 228 F.3d 429, 447 (3d Cir. 2000) (quoting 16 Summary of Pa. Jur. 2d Commercial Law § 2.2 (1994)). Typically, an unjust enrichment claim is "inapplicable when the relationship between parties is founded on a written agreement or express contract." Benefit Tr. Life Ins. Co. v. Union Nat. Bank of Pittsburgh, 776 F.2d 1174, 1177 (3d Cir. 1985) (quoting Schott v. Westinghouse Elec. Corp., 259 A.2d 443, 448 (Pa. 1969)). However, "[p]leading in the alternative under Fed. R. Civ. P. 8(d)(2) is . . . permissible . . . when the validity of the contract itself is actually disputed, making unjust enrichment a potentially available remedy." Grudkowski v. Foremost Ins. Co., 556 F. App'x 165, 170 n.8 (3d Cir. 2014) (internal citation omitted).
Defendant argues that Plaintiffs' unjust enrichment claim should be dismissed because a claim for unjust enrichment cannot stand if an express contract governs the parties' relationship. (Def.'s Mot. 7-8.) Defendant is mistaken.
Defendant explicitly disputes the existence of a valid contract in its Motion: According to Defendants, "Plaintiffs' breach of contract claim should be dismissed because Plaintiffs fail to allege the existence of a valid and binding contract." (Def.'s Mot. 4); see Sur. Adm'rs, Inc. v. Pacho's Bail Bonds, No. 05-CV-5851, 2007 U.S. Dist. LEXIS 23543, at *14 (E.D. Pa. Mar. 29, 2007) (denying motion to dismiss unjust enrichment claim because "[defendant] disputes the existence of a contract — indeed, it is the primary basis for his motion to dismiss — and plaintiffs have exercised their right under Federal Rule 8(e)(2) to allege alternative forms of relief `regardless of consistency.'"); Alpart v. Gen. Land Ptnrs, Inc., 574 F.Supp.2d 491, 507 (E.D. Pa. 2008) (same); cf. AmerisourceBergen Drug Corp. v. Allscripts Healthcare, LLC, No. 10-6087, 2011 U.S. Dist. LEXIS 83582, at *11 (E.D. Pa. July 29, 2011) (granting motion to dismiss an unjust enrichment claim because "neither party contests the validity of the [contract]."); Grudkowski, 556 F. App'x at 170 n.8 (same). At this stage in the litigation, it is uncertain whether there is a valid, enforceable contract. Therefore, Plaintiffs may assert unjust enrichment as an alternative claim.
Finally, Defendant moves to dismiss Plaintiffs' claim for attorney's fees. However, we need not consider on a motion to dismiss whether Plaintiffs may ultimately be entitled to attorney's fees. See Brennan v. William Paterson College, 34 F.Supp.3d 416, 426 (D.N.J. 2014) (deferring decision on availability of attorney's fees on motion to dismiss because issue would not be ripe unless plaintiff prevailed); Wharf, Inc. v. Dist. of Columbia, 232 F.Supp.3d 9, 22 (D.D.C. 2017) (holding that "the Court need not address what remedies are appropriate [on a 12(b)(6) motion] given that it has only determined that the parties have pled sufficient claims and counterclaims to survive a motion to dismiss").
For the foregoing reasons, Defendant's Motion to Dismiss will be denied.
An appropriate Order follows.