The opinion of the court was delivered by: Mukasey, District Judge.
Plaintiff Seiden Associates, a New York executive recruiting
firm, sues for a fee allegedly earned by causing William N.
Sick Jr. to be hired as chief executive officer of American
National Can Company ("Can"), a Delaware Corporation with its
principal place of business in Chicago. The obligation to pay
is said to arise from a letter contract dated October 31, 1986
between Seiden on the one hand, and Can and Triangle
Industries, Inc. ("Triangle"), the predecessor of Can's current
parent corporation, on the other. The current parent, ANC
Holdings, Inc. ("ANC"), a Delaware corporation based in
Connecticut, is a defendant; according to the complaint, ANC
was formerly known as Triangle. Jurisdiction is based on
diversity of citizenship.
Plaintiff's legal theories include breach of contract,
quantum meruit, and unjust enrichment. Defendants now move to
dismiss the quantum meruit and unjust enrichment claims,
arguing that plaintiff may not pursue such theories of implied
contract when there exists an express contract concerning the
same subject matter allegedly covered by the implied contract.
Defendants have not moved against the claim based on the
written contract, but they have asserted in their Answer that
the written contract bound only Triangle, not ANC or Can. For
the reasons set forth below, defendants' motion is denied.
Plaintiff's first claim seeks monetary relief for defendants'
alleged breach of the letter agreement, while its second and
third claims seek the same relief under the alternative
theories of quantum meruit and unjust enrichment.*fn1 Quantum
meruit, meaning "as much as he deserves," is an expression that
describes the extent of liability on a contract implied in law
in order to prevent a party's unjust enrichment. Black's Law
Dictionary 649 (abridged 5th ed. 1983). This implied in law
contract usually is referred to as a "quasi contract."
Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382,
388, 521 N.Y.S.2d 653, 656, 516 N.E.2d 190 (1987). Quasi
contractual relief is separate and distinct from contractual
relief and "only applies in the absence of an express agreement
. . . in
order to prevent a party's unjust enrichment." Id. (citations
"Quasi contracts are not contracts at all,
although they give rise to obligations more akin
to those stemming from contract than from tort.
The contract is a mere fiction, a form imposed in
order to adapt the case to a given remedy . . .
Briefly stated, a quasi-contractual obligation is
one imposed by law where there has been no
agreement or expression of assent, by word or act,
on the part of either party involved. The law
creates it, regardless of the intention of the
parties, to assure a just and equitable result"
Id. (quoting Bradkin v. Leverton, 26 N.Y.2d 192, 196, 309
N.Y.S.2d 192, 196, 257 N.E.2d 643 (1970)) (emphasis in
original) (ellipses in original). See also Chadirjian v.
Kanian, 123 A.D.2d 596, 598, 506 N.Y.S.2d 880, 882 (2d Dep't
1986) ("An agreement may be implied under the doctrine of
unjust enrichment in order to prevent one person who has
obtained a benefit from another without ever entering into a
contract with that person from unjustly enriching himself at
the other party's expense.").
The quasi contract, which is implied in law in order to
prevent unjust enrichment, should be distinguished from a
contract implied in fact, which is a true contract. Parsa v.
State, 64 N.Y.2d 143, 148, 485 N.Y.S.2d 27, 29, 474 N.E.2d 235
(1984); see generally 22 N.Y.Jur 2d, Contracts, § 446 at 375
(1982) (discussing differences between the two classes of
implied contracts). "[A] contract implied in fact, rests upon
the conduct of the parties and not their verbal or written
words. It is a true contract based upon an implied promise. . .
." Parsa, 64 N.Y.2d at 148, 485 N.Y.S.2d at 29 (emphasis
added). Such contracts "arise in the absence of an express
agreement and are based on the conduct of the parties, from
which a fact finder may fairly infer the existence and terms of
a contract." Radio Today, Inc. v. Westwood One, Inc.,
684 F. Supp. 68, 71 (S.D.N.Y. 1988).
To the extent there is a valid and enforceable contract
between plaintiff and defendants, plaintiff will not be able to
seek recovery in quasi contract in addition to or in conflict
with the express terms of that contract. Radio Today, 684
F. Supp. at 72 (denying recovery for defendant's alleged breach
of contract to pay for use of radio format developed by
plaintiff where contract by its terms involved only payment for
radio programs produced by plaintiff); Clark-Fitzpatrick, 70
N.Y.2d at 389, 521 N.Y.S.2d at 656, 516 N.E.2d 190 (where "it
is undisputed that the relationship between the parties was
defined by a written contract" and that written construction
contract specifically provided method for computing price
adjustments, plaintiff was not entitled to quasi contract
relief for damages sustained as a result of substantial design
changes). However, to the extent there is found to be no such
contract between plaintiff and defendants, plaintiff may be
able to recover on alternative theories of quantum meruit and
unjust enrichment. See Farash v. Sykes Datatronics, Inc., 59
N.Y.2d 500, 504-05, 465 N.Y.S.2d 917, 919-20, 452 N.E.2d 1245
(1983) (allowing recovery in quasi contract where claim to
enforce an oral lease was barred by statute of frauds).
Both Fed.R.Civ.P. 8(e)(2)*fn2 and the pleading rules of New
York State law permit the pleading of contradictory claims
alleging both breach of a contract or, in the alternative, a
quasi contract. See Paper Corp. of U.S. v. Schoeller Technical
Papers, Inc., 742 F. Supp. 808, 812 (S.D.N.Y. 1990); Quadion
Corp. v. Mache, 738 F. Supp. 270, 278 (N.D.Ill. 1990); Skinner
v. Shirley of Hollywood, 723 F. Supp. 50, 56 (N.D.Ill. 1989);
Braman v. Woodfield Gardens Associates, 715 F. Supp. 226, 229
(N.D.Ill. 1989); Farash, 59 N.Y.2d at 504, 465 N.Y.S.2d at 919,
452 N.E.2d 1245; see also
Baii Banking Corporation v. Atlantic Richfield Company, 1990 WL
151124 *5 (S.D.N.Y. October 3, 1990) (allowing alternative
pleading of claims sounding in contract and promissory
estoppel).*fn3 Dismissal of plaintiff's alternative theories
at this stage would violate the liberal policy of Rule 8(e)(2)
which allows plaintiffs wide "latitude" in framing their right
to recover. See MacFarlane v. Grasso, 696 F.2d 217, 224 (2d
Defendants seek to dismiss the quantum meruit claims and
unjust enrichment claims on the theory that "the existence of
an express contract governing a particular subject matter bars
recovery under theories of quantum meruit (implied contract) or
unjust enrichment (quasi-contract) for events arising out of
the same subject matter." Defendants' Memorandum of Law at 3.
There are several flaws in defendants' theory. First, as
noted above, alternative pleading of contradictory claims is
explicitly allowed under the Federal Rules of Civil Procedure.
Second, close examination of the cases cited by defendants
demonstrates that defendants' theory is an overly broad
generalization of governing law. It is the existence of an
express contract between the parties that bars recovery under
the alternative theories for events arising out of the same
subject matter as that contract. Here, defendants argue, at
least in their Answer, that the express contract was with
another party. (Answer ¶ 8, 9) Finally the statement fails to
make the critical distinction between contracts implied in
fact, which are actual contracts overridden by any
contradictory written contract on the same subject, and
contracts implied in law (quasi contracts). As mentioned above,
quasi contracts are imposed by courts where the absence of an
enforceable contract would otherwise lead to unjust enrichment
of a party.
While the existence of an enforceable contract between the
parties will prevent recovery in quasi-contract, as between
those parties, see, e.g., Yonkers v. Otis Elevator Co.,
844 F.2d 42, 48 (2d Cir. 1988); Nelson v. Stanley Blacker, Inc.,
713 F. Supp. 107, 111 (S.D.N.Y. 1989); Radio Today, 684 F. Supp.
at 71; Fox v. Lummus Co. 524 F. Supp. 27, 29 (S.D.N.Y. 1981),
the mere existence of a written contract governing the same
subject matter does not preclude such recovery from non parties
so long as the other requirements for quasi contracts are met.
Defendants' reliance on Julien J. Studley, Inc. v. New York
News, Inc., 70 N.Y.2d 628, 629, 518 N.Y.S.2d 779, 780,
512 N.E.2d 300 (Ct.App. 1987) is misplaced. Studley holds only that
the existence of a written contract, which stated that a real
estate broker was acting as agent of a buyer, precluded the
finding of an inconsistent "implied in fact" contract — i.e.,
a brokerage contract between the ...