Opinion
No. 3:03-CV-0878-P
December 1, 2003
MEMORANDUM OPINION AND ORDER
Now before the Court are Defendants Xanser Corporation (f/k/a Kaneb Services, Inc. and also named as "Kaneb Services, Inc., a/k/a Xanser Corporation"), Kaneb Pipe Line Company, Kaneb Pipe Line Company LLC, and Kaneb Pipe Line Partners, LP's (referred to collectively as "Defendants") Motion to Dismiss Plaintiff's Complaint, filed June 18, 2003.' Plaintiff filed its Response on August 11, 2003, and Defendants filed their Reply on September 2, 2003. After considering the parties' arguments and briefing, and the applicable law, the Court GRANTS in part and DENIES in part Defendants' Motion to Dismiss.
Defendant Xanser Corporation formally changed its name from Kaneb Services, Inc. on August 11, 2001 (Xanser Corporation and Kaneb Services, Inc. hereinafter referred to collectively as "Xanser"). Defendant Kaneb Pipe Line Company is a wholly owned subsidiary of Xanser. On July 21, 2001, Kaneb Pipe Line Company converted to a limited liability company, which is now known as Kaneb Pipe Line Company LLC (Kaneb Pipe Line Company and Kaneb Pipe Line Company LLC hereinafter referred to collectively as "Kaneb Pipe"). Kaneb Pipe Line Partners, LP ("Kaneb Partners") is a limited partnership, and maintains its principle place of business at the same address as Xanser and Kaneb Pipe.
I. Background and Procedural History
Plaintiff, National Utility Services, Inc. ("NUS"), is in the business of analyzing the energy and telecommunications expenses of industrial and commercial organizations, and identifies opportunities for savings and refunds on the organizations' expenditures. Plaintiff's Original Complaint ("Pl.'s Compl."), ¶¶ 3-4. Defendant Xanser entered into an agreement (the "Agreement") with NUS for such services on December 18, 1991. Id. at ¶¶ 18-23.
A. The NUS-Xanser Agreement
The Agreement was to last for an initial five year term, and was to renew automatically for consecutive five year terms, unless cancelled by written notice at least thirty days prior to the beginning of a new term. Id. at ¶ 31; Pl's. Compl., Ex. 1 ("NUS-Xanser Agmnt."), ¶ 7. According to NUS, no written cancellation notice was sent by Xanser prior to the expiration of the first five year term of the Agreement, and the Agreement therefore renewed for a second five-year term. Pl.'s Compl., ¶ 32. Pursuant to the terms of the Agreement, Xanser paid NUS an initial service fee of $12,000, and NUS was to conduct an analysis of Xanser's old electricity and energy bills in order to identify possible refunds. Id. at ¶¶ 24-28; NUS-Xanser Agmnt., ¶¶ 2, 5. In addition, Xanser was to send to NUS its future electricity and energy bills for the five year duration of the Agreement. NUS-Xanser Agmnt., ¶ 2. Using this information, NUS was to make recommendations regarding possible savings on Xanser's electricity and energy costs. Id. The implementation of these recommendations was subject to the consideration and ultimate approval of Xanser. Id. at ¶ 3.
NUS does not claim in its Complaint that the Agreement renewed again in 2001 and is still in effect under a third 5-year term. Rather, NUS cryptically states in its response brief that "if . . . a cancellation notice was given prior to the beginning of the third five-year term, the Agreement would have terminated in December 2001." Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss Complaint ("Pl's. Brief in Opp. to Defs.' Mot. Dismiss"), p. 10, fn. 3.
The Agreement also contained a performance fee provision, under which Xanser agreed to pay NUS a portion of each refund and savings realized as a result of implementing NUS's recommendations. Pl.'s Compl., ¶ 29. Specifically, Xanser agreed to pay NUS: (1) fifty percent of each refund realized, and (2) fifty percent of each monthly savings realized for a period of sixty months, after which the entire savings would be kept by Xanser. Id.; NUS-Xanser Agmnt, ¶ 5. If a recommendation made by NUS was still pending, or a savings was still in effect at the expiration of the Agreement, Xanser's payment obligations under the performance fee provision were to remain in effect until the recommendation and/or saving payment period were completed. Pl.'s Compl., ¶ 30; NUS-Xanser Agmnt., ¶ 6. If this situation were to arise, Xanser also agreed to continue sending NUS its expenditure information and invoices after the expiration of the Agreement. Id.
B. NUS's Recommendations to Xanser
Xanser, either directly or through its subsidiaries, operates several facilities in Kansas, including plants in El Dorado, Augusta, Ark City, Udall Station (referred to collectively as the "Kansas Plants"), and Hutchinson (the "Hutchinson Plant"). Pl.'s Compl., ¶¶ 47, 71. Based on the allegations contained in its Complaint, the only recommendations made by NUS to Defendants were contained in two reports issued to the Kansas and Hutchinson Plants (referred to individually as "the Kansas Report" and "the Hutchinson Report").
NUS does allege in its Complaint that it "made numerous other recommendations" to Defendants, other than those contained in the Kansas and Hutchinson Reports. Pl.'s Compl., ¶ 127. However, as evidenced by the specificity with which NUS has detailed the dates and circumstances surrounding the Kansas and Hutchinson Reports in its Complaint, it is clear that NUS has the requisite information to allege and identify with particularity the dates and substance of each recommendation it provided under the Agreement. The Court will not allow NUS to include vague and conclusory statements concerning its "numerous" other recommendations to make an end-run around Defendants' limitations and other defenses. Rather, the Court finds that the only "service" or "performance" under the Agreement properly pled in NUS's Complaint is the issuance of the Kansas and Hutchinson Reports. See generally Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992) (conclusory allegations and unwarranted deductions of fact are not admitted as true by a motion to dismiss); Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989) (plaintiff must allege specific facts, not conclusory allegations).
1. The Kansas Report
According to NUS, Kansas Gas Electric Company ("KGE") was and is the electricity supplier for Xanser's Kansas Plants. Id. at 47. Kaneb Pipe provided NUS with information relating to the costs of electric service purchased from KGE to power the Kansas Plants. Id. at 48-50. Using this information, NUS generated the Kansas Report, which it sent to Xanser on December 16, 1992. Id. at 51. Among other things, the Kansas Report recommended that Kaneb Pipe could realize cost benefits by transferring some of its electric services to KGE's High Load Factor Service Schedule ("Schedule HLF"). Id. at ¶ 57. NUS alleges that the Defendants approved and implemented its recommendation, and realized savings on their electricity costs at the Kansas Plants. Id. at ¶¶ 60-64.
2. The Hutchinson Report
According to NUS, Kansas Power Light Co. ("KPL") was and is the electricity supplier for Xanser's Hutchinson Plant. Id. at ¶ 71. Similar to its allegations concerning the Kansas Plants, NUS claims that Kaneb Pipe furnished it with electricity cost data for the Hutchinson Plant, and that the Hutchinson Report was generated using this data on December 16, 1992. Id. at ¶¶ 72-75. The Hutchinson Report recommended that Kaneb Pipe could realize cost savings at the Hutchinson Plant by increasing the operating power factor at the Plant to a level of ninety percent or higher. Id. at ¶ 81. Again, NUS alleges that the Defendants approved and implemented the recommendation, and realized savings on their electricity costs at the Hutchinson Plant as a result. Id. at ¶¶ 82-84.
C. NUS's Claims Against Defendants
NUS has brought six claims against Defendants in its Original Complaint. First, NUS asserts that it is entitled to fifty percent of the savings realized by Defendants at the Kansas Plants for a period of sixty months from the date of its first savings, and that Defendants' nonpayment constitutes a breach of the Agreement. Id. at ¶¶ 46-69. Second, NUS asserts essentially the same breach of contract claim with respect to its alleged share of the savings realized by Defendants at the Hutchinson Plant. Id. at ¶¶ 70-90. Third, NUS asserts alter ego against Kaneb Pipe with respect to the terms of the Agreement, claiming that corporate distinctions between it and Xanser were disregarded. Id. at 91-110. NUS's fourth and fifth claims against Defendants are for a recovery of the value of its services performed for Defendants under theories of quantum meruit and unjust enrichment. Id. at ¶¶ 111-125. Finally, NUS seeks declaratory judgments with respect to the parties' rights under the Agreement, as well as an order compelling Defendants to specifically perform any outstanding obligations under the Agreement. Id. at ¶¶ 126-133. Defendants now move to dismiss NUS's Complaint in its entirety under Fed.R.Civ.Proc. 12(b)(6) ("Rule 12(b)(6)").
II. Legal Standards — Motion to Dismiss
Rule 12(b)(6) provides for the dismissal of a complaint when a defendant shows that the plaintiff has failed to state a claim for which relief can be granted. A motion to dismiss for failure to state a claim is viewed with disfavor and should rarely be granted. See Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Under the rule of Conley v. Gibson, 355 U.S. 41 (1957), a claim should not be dismissed unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. The Court must render its decision taking the complaint in the light most favorable to the plaintiff and taking its allegations as true. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
The Court limits its inquiry to whether plaintiff is entitled to offer evidence to support claims and does not address whether plaintiff will ultimately prevail on the merits. Johnson v. Dallas Ind. School Dist., 38 F.3d 198, 199 (5th Cir. 1994). However, dismissal is proper when "even the most sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).
III. Defendants' Motion to Dismiss
Defendants maintain that the applicable statutes of limitations bar NUS's claims for breach of contract, alter ego, declaratory judgment, and quasi-contract recovery. In addition, Defendants assert that: (1) NUS's declaratory judgment claim should be dismissed because it seeks futile and improper relief; (2) its quasi-contract claims are barred by the Agreement itself; (3) its alter ego claim is barred by statute; and (4) NUS has failed to state any claim against Defendant Kaneb Partners. Defendants' defenses to each of NUS's claims will be addressed in turn.
A. The Breach of Contract Claims
Under Texas law, causes of action for breach of contract are governed by a four-year statute of limitations. See Tex. Civ. Prac. Rem. Code § 16.004; see also Hoover v. Gregory, 835 S.W.2d 668, 677 (Tex.App. 1992); Kansas Reinsurance Co., Ltd. v. Congressional Mortg. Corp. of Texas, 20 F.3d 1362, 1368-69 (5th Cir. 1994). For the purposes of application of a statute of limitations, a cause of action typically accrues when facts come into existence which authorize a claimant to seek a judicial remedy. See generally Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex. 1977); Wiman v. Tomaszewicz, 877 S.W.2d 1, 5 (Tex.App.-Dallas 1994, writ refused). More specifically, contract claims generally accrue when the contract is breached, i.e. when a party fails to perform a duty required by the contract. See Gregory, 835 S.W.2d at 677.
A statute of limitations defense may be raised on a motion to dismiss for failure to state a claim under Rule 12(b)(6). Dismissal is appropriate when it can be determined from the face of a complaint that the limitations period has expired. However, where the alleged failure to comply with the statute of limitations does not appear on the face of the complaint, a motion for summary judgment is the proper procedure. See Marshall v. Kimberly-Clark Corp., 625 F.2d 1300, 1302 (5th Cir. 1980) ( citing Higgenbotham v. Ochsner Found. Hosp., 607 F.2d 653 (5th Cir. 1979)). Under Fed.R.Civ.P. 8(a)(2), a plaintiff need not set forth all the facts upon which the claim is based in her complaint. Rather, a short and plain statement of the claim is sufficient if it gives the defendant fair notice of what the claim is and the grounds upon which it rests.
In this case, NUS has alleged in its Complaint: (1) Xanser and NUS entered into the Agreement in 1991; (2) pursuant to the Agreement, NUS issued the Kansas and Hutchinson Reports, which made recommendations to Xanser regarding electricity cost-saving measures; (3) at some point, Xanser implemented those recommendations and realized savings as a result; (4) under the terms of the Agreement, Xanser was obligated to pay NUS a portion of those savings; and (5) Xanser breached the Agreement by failing to pay NUS its share of the savings. These allegations are more than sufficient to meet the notice pleading requirements of Rule 8(a)(2).
With respect to Defendants' statute of limitations defense, the Complaint does not contain (nor does Rule 8(a)(2) require it to contain) allegations as to the specific dates on which the two breach of contract claims accrued. Although the Defendants focus on the date of NUS's recommendations, the critical dates for applying the statute of limitations are the date Xanser implemented NUS's recommendations, and the date when Xanser began realizing savings on its electricity costs. Under the terms of the Agreement, any recommendation made by NUS was subject to Xanser's consideration and ultimate approval. Thus, Defendants' alleged failure to perform according to the Agreement would not have occurred immediately upon issuance of the Kansas and Hutchinson Reports, but would have occurred only after Xanser approved the recommendations, after it implemented the recommendations, after it realized savings from the implementation, and after it failed to pay according to the performance fee provision.
According to NUS, Defendants have not furnished their energy bills since the Kansas and Hutchinson Reports were issued in December 1992. Without these bills, NUS claims that it has been unable to determine precisely when its recommendations were implemented, or when the Defendants began to realize savings on their energy costs. The Defendants have not demonstrated that it can be determined from the face of the Complaint that the statute of limitations period has expired, nor have they presented any summary judgement type evidence that conclusively shows that the limitations period has run. Defendants' argument that NUS's claims are barred by limitations is based only on its unsubstantiated claim that the alleged breach occurred within a "reasonable time" from the date NUS made its recommendations.
While it impossible that the statute of limitations have expired and NUS's claims are barred, Defendants have not demonstrated that it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. Rather, the ambiguity as to when the Defendants implemented NUS's recommendation and began realizing savings is precisely why dismissal under Rule 12(b)(6) would be inappropriate, and the parties should be allowed to conduct discovery on the issue. As it cannot be determined from the face of the Complaint whether or not the statute of limitations has expired, the Defendants' motion to dismiss NUS's breach of contract claims under Rule 12(b)(6) is hereby DENIED.
B. NUS's Declaratory Judgment Claims
In its declaratory judgment claim, NUS seeks (1) a declaration as to the rights of the parties under Agreement, including NUS's potential entitlement to money damages, and (2) an order compelling specific performance of Defendants' obligation to provide energy cost information as relevant to NUS's recommendations. Defendants contend that these claims should be dismissed under Rule 12(b)(6) because (1) the claims are barred by the statute of limitations, and (2) the claims seek futile and improper relief.
1. Statute of Limitations
Defendants assert that NUS has simply "recast" its breach of contract claims as a claim for declaratory judgment, and the same four-year statute of limitations bars both causes of action. Defendants' Motion to Dismiss ("Defs.' Mot. Dismiss"), p. 7. To the extent that NUS is seeking a declaration on Defendants' alleged breach of the Agreement and any resulting monetary damages, the same ambiguities discussed with regard to NUS's breach of contract claims remain. Thus, as with the breach of contract claims, it is not clear from the face of the Complaint that the limitations period has expired for NUS's declaratory judgment claims, and dismissal on these grounds under Rule 12(b)(6) would be inappropriate.
To the extent that NUS seeks a declaration and an order compelling specific performance with regard to Defendants' obligations to furnish energy cost information under the Agreement, Defendants argue that the claim is barred by limitations because such a declaration would "necessarily require a declaration that the Agreement in fact renewed in December of 1996." Id. Defendants assert that any claim for a declaration concerning the renewal of the Agreement in 1996 expired in early 2001 at the latest, and that NUS's claim for declaratory judgment is therefore barred as well.
The Court does not agree with Defendants' contention that NUS's declaratory judgment claim "necessarily" requires a preliminary declaration as to the renewal of the Agreement in 1996. Under the terms of the Agreement, Xanser agreed to continue sending its energy cost information to NUS if a saving was still in effect (and payment was still required under the performance fee provision) or a recommendation was still pending approval at the expiration of the Agreement. See NUS-Xanser Agmt., ¶ 6. Therefore, even if the Agreement expired in December 1996, NUS could prove that its recommendations were implemented late enough that Defendants' obligation to pay and provide their energy bills under the original Agreement could conceivably still be in effect. Defendants have provided no evidence that NUS's recommendations were approved and implemented early enough that its claims for payment have expired, nor have they shown that NUS's recommendations were rejected and its on-going obligations under the Agreement are no longer in effect. Thus, with respect to the Defendants' obligation to provide their energy bills pertaining to NUS's recommendations, it is not clear from the face of the Complaint that those claims are barred by limitations.
2. Futile and Improper Relief
Arguing again that it seeks the same relief as its breach of contract claims, Defendants assert that NUS's declaratory judgment claim should be dismissed because "declaratory judgment is an improper exercise of discretion where other remedies, such as a breach of contract claim, will resolve the issues raised by the declaratory judgment claim." Defs.' Mot. Dismiss at 8. In addition, to the extent that it seeks a declaration and an order compelling specific performance with regard to Defendants' obligation to provide energy cost information, Defendants contend that the claim should be dismissed because it relates to past and not future damages, and it is improper because the Federal Rules of Civil Procedure, and not a declaratory judgment, are the proper means of obtaining such information.
NUS asserts that Defendants fundamentally misconstrue its declaratory judgment claim. According to NUS, its declaratory judgment claim has two objectives: "(i) to obtain electric bills and other information which will allow NUS to determine the dates and compute the amounts of savings (and NUS's fee thereon) realized at the Kansas and Hutchinson Plaints for the months of the sixty month participation period that may remain at the time judgment is rendered, and (ii) to obtain energy and telecommunication bills and other information which will allow NUS to determine where its other recommendations have been implemented." Pl.'s Brief in Opp. to Defs.' Mot. Dismiss at 11 (emphasis in original). As to the first objective, to the extent that NUS is seeking a declaration and specific performance of potentially on-going obligations, Defendants have not demonstrated that this claim would be futile or improper. NUS could show that Defendants implemented its recommendations so recently that its obligations extend beyond the time judgment is rendered in this case, and Defendants have not presented the Court with any evidence to the contrary. If this were true, then NUS's breach of contract claims would not resolve all the issues raised by NUS's declaratory judgment claim. NUS's claim may not be futile or improper, and dismissal on these grounds would be inappropriate.
However, as to the second objective, the Court agrees with Defendants, and finds that the declaratory relief sought by NUS is improper. The Declaratory Judgment Act permits federal courts to "declare the rights and other legal relations of any interested party seeking such
Declaration . . ." 28 U.S.C. § 2201(a) (2001). However, "it is incumbent on the plaintiff to allege a 'justiciable controversy' in order to state a claim for declaratory relief. . . . In addition, the complaint must stand or fall on its own merits and cannot be used as a vehicle for searching out and discovering a right of action." 5 C. Wright and A. Miller, Federal Practice and Procedure § 1238, pp. 288-90 (1990) (footnotes omitted); see also Fifth Ave. Peace Parade Committee v. Gray, 480 F.2d 326, 333 (2nd Cir. 1973). NUS has not alleged a justiciable controversy beyond the dispute about Defendants' possible on-going obligations under the Agreement with respect to the Kansas and Hutchinson Reports. The second objective stated for NUS's declaratory judgment claim goes beyond the scope of this controversy, and is precisely the type of fishing expedition for which a declaratory judgment is not the proper mechanism. NUS and Defendants are both entitled to conduct extensive discovery under the Federal Rules of Civil Procedure, and there is no need for a declaratory judgment on the issue.
Accordingly, the Court GRANTS Defendants' Motion to Dismiss NUS's claim for a declaration and order compelling specific performance with respect to their obligation to provide energy cost information relating to NUS's "other recommendations." However, recognizing that NUS could show that Defendants have a potentially on-going obligation to provide its energy cost information and make payments to NUS after the date a judgment is rendered in this case, the Court DENIES Defendant's Motion to Dismiss NUS's claim for a declaration and order compelling specific performance with respect to the rights and obligations of the parties under the Agreement stemming from the Kansas and Hutchinson Reports.
C. The Quasi-Contract Claims
NUS also seeks recovery for the "unpaid reasonable value of its services and work" under theories of quantum meruit and unjust enrichment. Defendants assert that the existence of an express agreement defeats NUS's quasi-contract claims, and also that the claims are barred by the applicable statute of limitations.
NUS does not expressly define the "services" for which it is seeking recovery in its quantum meruit and unjust enrichment claims. While NUS does allege in other parts of its Complaint that it made "numerous" recommendations to Defendants, the Court will not admit such conclusory allegations as true. See supra, fn. 3. The Court finds that the only "service" or "performance" properly alleged in NUS's Complaint is the issuance of the Kansas and Hutchinson Reports.
1. Quantum Meruit
To recover under the doctrine of quantum meruit, a plaintiff must prove that (1) valuable services and/or materials were furnished (2) for the defendant (3) which were accepted by the defendant (4) under such circumstances as reasonably notified the defendant that the plaintiff, in performing, expected to be paid. See Lott v. Penny, 1999 Tex. App. LEXIS 9112, *5 (Tex.App.-Dallas 1999, no writ) ( citing Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992)); see also Jhaver v. Zapata Off-Shore Co., 903 F.2d 381, 384 n. 10 (5th Cir. 1990). Under Texas law, causes of action for quantum meruit are governed by the four-year statute of limitations applicable to actions for debt. See Tex. Civ. Prac. Rem. Code 16.004(a)(3); see also Berryhill v. Findeisen, 1996 Tex. App. LEXIS 4100 (Tex.App.-Austin 1996, no pet.); Camacho v. Sullivan Transfer Co., 577 S.W.2d 793, 794 (Tex.Civ.App.-Waco 1979, no writ).
NUS's breach of contract claims seek recovery for the Defendants' alleged failure to pay under the terms of the Agreement. As discussed above, dismissal of these claims under Rule 12(b)(6) is inappropriate at this time because of the ambiguity as to when Defendants' alleged breach actually occurred, and when NUS's cause of action accrued. NUS's quantum meruit claim seeks recovery for services rendered to and knowingly accepted by Defendants. In contrast to its breach of contract claims, the critical dates in applying the statute of limitations to this claim are the date NUS performed its services and the date that Defendants knowingly accepted those services.
There is no ambiguity as to when NUS's services were performed or accepted. NUS has alleged in its Complaint that: (1) the Kansas and Hutchinson Reports were generated for Defendants; (2) the Reports were sent to Xanser on December 16, 1992 via U.S. Mail; and (3) the Reports were received by Defendants in the ordinary course of the U.S. Mails. The only "service" rendered by NUS was the issuance of the Kansas and Hutchinson Reports in December 1992. See supra, fn. 3. NUS asserts that "acceptance" of this service did not occur until Defendants implemented its recommendations and began realizing savings. However, as noted earlier, the terms of the Agreement expressly state that NUS's recommendations were subject to the consideration and ultimate approval of Xanser. Under NUS's position, "acceptance" of its services would be conditioned on Defendants' approval and implementation of its recommendations. The Court disagrees with this line of reasoning, and finds that "acceptance" of NUS's "service" occurred at the time the Reports were received by Defendants, not after Defendants approved and implemented the recommendations made in the Reports.
Thus, it is clear from the face of the Complaint that NUS's quantum meruit claim accrued sometime in December 1992, and is barred by the applicable statute of limitations. The Court hereby GRANTS Defendant's Motion to Dismiss NUS's quantum meruit claim.
2. Unjust Enrichment
A claim for unjust enrichment arises out of a party's "failing to make restitution for benefits received under circumstances giving rise to an implied or quasi-contract." Transamerican Natural Gas Corp. v. Finkelstein, 933 S.W.2d 591, 600 (Tex.App.-San Antonio 1996, writ denied) ( citing Allen v. Berrey, 645 S.W.2d 550, 553 (Tex.App.-San Antonio 1982, writ ref'd n.r.e.)). "Generally speaking, when a valid, express contract covers the subject matter of the parties' dispute, there can be no recovery under a quasi-contract theory. . . ." Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); see also Lone Star Steel Co. v. Scott, 759 S.W.2d 144, 154 (Tex.App.-Texarkana 1988, writ denied); Allen, 645 S.W.2d at 553. This result is particularly appropriate when sophisticated parties bargain for express contracts. See Finkelstein, 933 S.W.2d at 600; see also Angela Broadcasting, Inc. v. Satellite Music Network, Inc., 836 S.W.2d 726, 731 (Tex.App.-Dallas 1992, writ denied). Causes of action for unjust enrichment are governed by a two-year statute of limitations. See HECI Exploration Co., v. Neel, 982 S.W.2d 881, 885 (Tex. 1998); see also Mobil Producing Texas N.M. v. Cantor, 93 S.W.3d 916, 919 (Tex.App.-Corpus Christi 2002, no pet. h.).
NUS's claim for unjust enrichment is barred by the two-year statute of limitations. As discussed above with regard to its quantum meruit claim, NUS's unjust enrichment claims accrued upon Defendants' acceptance of its services. The "benefit" for which NUS is seeking recovery is the value of its services performed for Defendants, and it was the acceptance of NUS's Reports that "[gave] rise to an implied or quasi-contract." To the extent that NUS is seeking the payments it alleges were due under the Agreement, these claims are not based on any implied or quasi-contract, but arise out of a specific provision of the Agreement itself. As correctly noted by the Defendants, an express contract cannot support an equitable claim like unjust enrichment. See Conoco, 52 S.W.3d at 684.
Based on the allegations made in its Complaint, it is clear that the limitations period for NUS's unjust enrichment claims expired well before the time that the present action commenced. Moreover, to the extent that NUS is seeking recovery for Defendants' alleged non-payment under the performance fee provision, such claims are precluded by the Agreement itself. The Court hereby GRANTS Defendants' Motion to Dismiss NUS's unjust enrichment claim.
D. The Alter Ego Claim
Defendants assert that NUS's alter ego claim is barred by limitations and the Texas Business Corporation Act. NUS's claim is not barred by limitations for the reasons discussed above with respect to NUS's breach of contract claims. However, NUS concedes that it has failed to plead adequately a claim for alter ego liability under Tex. Bus. Corp. Act, art. 2.21.A.(2). As such, the Court hereby GRANTS Defendants' Motion to Dismiss NUS's alter ego claim. However, under Fed.R.Civ.Proc. 15(a), the Court also grants NUS leave to file an amended complaint that comports with the heightened pleading requirements of Fed.R.Civ.Proc. 9(b) and Tex. Bus. Corp. Act, art. 2.21.A.(2).
E. The Claims Against Kaneb Partners
Lastly, Defendants assert that NUS has not stated any claim against Defendant Kaneb Partners. On the contrary, as NUS notes in its brief, the term "Defendants" in its Complaint specifically includes Kaneb Partners. NUS has thus incorporated Kaneb Partners in each of its six claims for relief, and has further alleged that Kaneb Partners became a party to the Agreement as transferee of the debts, liabilities, and duties of Kaneb Pipe Line LLC. NUS has satisfied the pleading requirements of Fed.R.Civ.P. 8(a)(2) with respect to its claims again Kaneb Partners. Consequently, the Court hereby DENIES Defendants' Motion to Dismiss all claims against Defendant Kaneb Partners.
IV. Conclusion
For the foregoing reasons, the Court:
GRANTS Defendants' Motion to Dismiss Plaintiff's claims for quantum meruit and unjust enrichment;
GRANTS Defendants' Motion to Dismiss Plaintiff's alter ego claim, but also
GRANTS Plaintiff the opportunity to file an amended pleading under Fed.R.Civ.Proc. 15(a).
GRANTS Defendants' Motion to Dismiss NUS's claim for a declaration and order compelling specific performance with respect to their obligation to provide energy cost information relating to NUS's "other recommendations." However, the Court DENIES Defendant's Motion to Dismiss NUS's claim for a declaration and order compelling specific performance with respect to the rights and obligations of the parties under the Agreement stemming from the Kansas and Hutchinson Reports;
DENIES Defendants' Motion to Dismiss all claims against Defendant Kaneb Partners; and
DENIES Defendants' Motion to Dismiss Plaintiff's claims for breach of contract.
It is so ordered.