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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

GREENHORNE & O’MARA, INC.,

Plaintiff,

v. CASE NO.: 1:10cv23-SPM/AK

CONSOLIDATED ELECTRICAL

CONTRACTORS AND ENGINEERS, INC.,

Defendant.

__________________________________/

CORRECTED1

 ORDER DENYING MOTION TO DISMISS

This cause comes before the Court on Defendant’s Motion to Dismiss the

Complaint (doc. 2) and Plaintiff’s response (doc. 3). For the following reasons,

the motion to dismiss will be denied.

1. The unsigned contract attached as a composite exhibit to the 

complaint does not foreclose recovery as a matter of law on the breach of

contract alleged in Count 1.

2. With regard to Count 2, even if Plaintiff had attempted to state

claims for recovery under unjust enrichment and quantum meruit in the same

count, separation of possible theories of recovery under Federal Rule of Civil

Procedure 10(b) is not required where the claims arise from the same actions or

1

 On March 3, 2010, the Court issued an order (doc. 4) with an incorrect

title–Order Denying Motion to Dismiss but Directing Plaintiff to File Amended

Complaint to Clarify Claims. This order corrects the title. The body is

unchanged.
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underlying circumstances. Perkins v. Sch. Bd. of Pinellas County, 152 F.R.D.

227, 229 (M.D. Fla. 1993). 

3. Unjust enrichment and quantum meruit may be based upon the

same underlying facts. Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting

Co., 695 So. 2d 383, 387 (Fla. 4th Dist. Ct. App. 1997). “When properly raised in

the pleadings, the overlapping theories may require a fact finder to view the facts

as they might apply to both.” Id. 

4. Plaintiff’s allegations in Count 2 are sufficient to state a claim for

contract implied in law, also known as quasi contract and unjust enrichment. 

Commerce P’ship 695 So. 2d at 386 (setting forth elements for cause of action

for contract implied in law). 

5. Plaintiff also includes the term “quantum meruit” in the label for

Count 2. While strictly speaking, the term quantum meruit is a remedy available

for a contract implied in fact (Rite-Way Painting and Plastering, Inc. v. Tetor, 582

So. 2d 15, 17 (Fla. 2d Dist. Ct. App. 1984), the term is often used

interchangeably with unjust enrichment. Commerce P’ship, 695 So. 2d at 386-

87. 

6. Although Defendant takes issue with the accuracy of the label

Plaintiff placed on Count 2, “[a] complaint need not specify in detail the precise

theory giving rise to recovery. All that is required it that the defendant be on

notice as to the claim be asserted against him and the grounds on which it rests.” 

CASE NO.: 1:10cv23-SPM/AK
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Sams v. United Food & Commercial Workers Int’l Union, 866 F.2d 1380, 1384

(11th Cir. 1989). 

7. Furthermore, Plaintiff has pleaded in Count 1 a claim for breach of

contract that is sufficient to allege a claim for breach of express contract and

alternatively breach of a contract implied in fact. Count 1 does not specifically

demand quantum meruit relief, but recovery based on quantum meruit may be

available in accordance with Federal Rule of Civil Procedure 54(c). Evans

Products Co. v. West Am. Ins. Co., 736 F.2d 920, 923 (3d Cir. 1984). 

Based on the foregoing, it is

ORDERED AND ADJUDGED: Defendant’s Motion to Dismiss the

Complaint (doc. 2) is denied.

DONE AND ORDERED this 11th day of March, 2010.

 s/ Stephan P. Mickle 

Stephan P. Mickle

Chief United States District Judge

CASE NO.: 1:10cv23-SPM/AK