United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
Rezac Livestock Commission Co., Inc. has asserted conversion,
unjust enrichment, quantum meruit, and civil conspiracy
claims against defendants Dinsdale Bros., Inc.,
(“Dinsdale”) and Pinnacle Bank
(“Pinnacle”). Plaintiff has requested a trial by
jury “on all issues.” Doc. 52; see also
Doc. 101 at 16. The parties' proposed jury instructions
framed a dispute whether plaintiff's unjust enrichment
and quantum meruit claims are jury triable issues. At the
final pretrial conference on December 19, 2019, the court
invited the parties to submit briefs about whether plaintiff
has a federal right to a jury trial on its unjust enrichment
and quantum meruit claims that arise under Kansas law.
See Fed. R. Civ. P. 39(a)(2) (explaining that a
trial must be by a jury on all issues demanded unless
“the court, on motion or on its own, finds that on some
or all of those issues there is no federal right to a jury
trial”). The court considered the parties'
arguments carefully (Docs. 211, 212, 213) and orally ruled
during trial on January 8, 2020 that the unjust enrichment
claims would be tried to the court. This Order memorializes
the court's oral ruling. For the reasons explained below,
the court concludes that plaintiff has waived its quantum
meruit claim and that plaintiff's unjust enrichment
claims are not triable to the jury.
Plaintiff's Quantum Meruit Claim Was Waived
quantum meruit claim against Dinsdale was not included
anywhere in the Pretrial Order. See Doc. 101. But,
after the court entered the Pretrial Order, Dinsdale moved
for summary judgment against this claim. See Doc.
103 at 26-27. And, both an unjust enrichment and a quantum
meruit instruction are included in plaintiff's proposed
jury instructions. See Doc. 183 at 21, 23. As
explained below, the court concludes a separate quantum
meruit claim does not remain for trial. Only the unjust
enrichment claims remain.
court denied summary judgment against the quantum meruit
claim, considering the summary judgment arguments on quantum
meruit and unjust enrichment together. See Doc. 125
at 54-57. And, the elements of quantum meruit and unjust
enrichment under Kansas law are often recited as one and the
same. See, e.g., The Superlative Group,
Inc. v. WIHO, L.L.C., No. 12-1468-JWL, 2014 WL 1385533,
at *4 (D. Kan. Apr. 9, 2014) (“The elements of a claim
for quantum meruit or unjust enrichment under Kansas law are
as follows: (1) a benefit conferred upon the defendant by the
plaintiff; (2) an appreciation or knowledge of the benefit by
the defendant; and (3) the acceptance or retention by the
defendant of the benefit under such circumstances as to make
it inequitable for the defendant to retain the benefit
without payment of its value.” (internal quotations and
citations omitted)); Haz-Mat Response, Inc. v. Certified
Waste Servs. Ltd., 910 P.2d 839, 842, 846-48 (Kan. 1996)
(addressing the “theory of quantum meruit/unjust
enrichment” as one claim and reciting the three
elements for such a claim); Credit Mgmt. Servs., Inc. v.
Tahirkheli, No. 119, 671, 444 P.3d 1018, 2019 WL
3367839, at *2 (Kan.Ct.App. July 26, 2019)
(“[Plaintiff's] claim was one for quantum meruit,
also known as a claim of unjust enrichment or as a
quasi-contract claim. To recover, the plaintiff must show
that (1) the plaintiff conferred a benefit on the defendant;
(2) the defendant appreciated and knew about the benefit
conferred; and (3) the defendant accepted and retained the
benefit under circumstances that make retention unjust. When
the plaintiff makes those showings, the plaintiff has a right
to recover the reasonable value of the services or benefits
provided.”); Diagnostic Imaging Ctr., P.A.
v. Waddell, No. 102, 430, 231 P.3d 587, 2010 WL 2217588,
at *7-8 (Kan.Ct.App. May 21, 2010) (“Quantum meruit,
otherwise known as unjust enrichment, lies in a promise
implied in law that one will restore to the person entitled
thereto that which in equity and good conscience belongs to
him. A quasi-contract based on unjust enrichment is created
on the basis of justice and equity, regardless of the assent
of the parties, and is a legal device used to enforce
noncontractual duties.” (internal quotations and
court previously determined-when denying Dinsdale's
motion to dismiss-that it would treat unjust enrichment and
quantum meruit as separate causes of action despite
“Kansas courts' tendency to use the terms
‘unjust enrichment' and ‘quantum meruit'
interchangeably.” Doc. 55 at 33. The court explained
Commentators and courts from other states have opined for
decades that “the two doctrines”-quantum meruit
and unjust enrichment-“are not interchangeable.”
66 Am. Jur. 2d Restitution § 33 (footnote
omitted). “[U]njust enrichment applies only in the
absence of any quasi-contractual relationship; quantum meruit
requires proof that services were rendered under
circumstances consistent with contract relations.”
Id. Then, on summary judgment, the court concluded
plaintiff's breach of contract claim asserted against
Dinsdale failed as a matter of law because Mr. Leonard was
not acting as Dinsdale's agent. Doc. 125 at 47. Now, the
remaining claims asserted by plaintiff appear based on the
same equitable elements, without a theory of any
quasi-contractual relationship between plaintiff and
Dinsdale. Compare Doc. 183 at 21, 23
(plaintiff's proposed jury instruction on quantum meruit
with substantially similar elements as its unjust enrichment
instruction) with PIK Civ. 4th § 124.17
(pattern instruction on measure of damages for quantum meruit
explaining quantum meruit involves a party
“furnish[ing] goods . . . for another” with a
“reasonable expectation of being compensated”).
Plaintiff's claims appear based on “an inequity in
allowing [Dinsdale] to retain a benefit, ” but not on
plaintiff rendering services to Dinsdale “under
circumstances consistent with contract relations.” 66
Am. Jur. 2d Restitution § 33. Indeed, it does
not appear disputed that plaintiff expected payment from Mr.
Leonard consistent with its contractual relations with Mr.
Leonard. No. evidence suggests plaintiff expected to be
compensated by Dinsdale. And plaintiff's conversion claim
is based on its assertion that Dinsdale was not a good faith
purchaser from Mr. Leonard.
quantum meruit claim here is intertwined with the unjust
enrichment claim against Dinsdale. See Doc. 125 at
54-57 (summary judgment Order considering Dinsdale's
arguments for summary judgment against plaintiff's unjust
enrichment and quantum meruit claims together); id.
at 35 (“Unjust enrichment serves as something of an
equitable gap filler. It is an equitable theory designed to
confer authority to rectify circumstances that make the
retention [by the defendant of a benefit] unjust. In the
contract setting, for example, the theory allows the court to
impose a contract on a quantum meruit basis where, the court
has concluded, no legally enforceable contract exists.”
(internal quotations and citations omitted)); see
also Doc. 103 at 27-28 (Dinsdale's motion for
summary judgment referring to plaintiff's “unjust
enrichment/quantum meruit claims”); Doc. 117 at 22-24
(plaintiff's response brief asserting arguments against
summary judgment on the unjust enrichment and quantum meruit
decision to exclude facts or issues as not found in the
pretrial order is committed to the trial court's sound
discretion.” Lewis v. Glickman, No.
98-4154-SAC, 2000 WL 1863407, at *1 (D. Kan. Nov. 1, 2000).
“[A] pretrial order defines the scope of an action for
trial . . . .” Koch v. Koch Indus., Inc., 203
F.3d 1202, 1220 (10th Cir. 2000); see also Sunderman v.
Westar Energy, Inc., 520 F.Supp.2d 1269, 1278 (D. Kan.
2007) (“The pretrial order is the controlling document
for trial. . . . Claims not included in the pretrial order
are waived.”). Fed.R.Civ.P. 16(d) provides that the
Pretrial Order “controls the course of the action
unless the court modifies it.” And, under Fed.R.Civ.P.
16(e), the “court may modify the order issued after a
final pretrial conference only to prevent manifest
injustice.” But, while the Pretrial Order should be
adhered to, it also “‘should be liberally
construed to cover any of the legal or factual theories that
might be embraced by [its] language.”'
Koch, 203 F.3d at 1220-21 (quoting Trujillo v.
Uniroyal Corp., 608 F.2d 815, 818 (10th Cir. 1979);
see also In re Cessna 208 Series Aircraft Prod. Liab.
Litig., No. 05-md-1721-KHV, 2009 WL 1247096, at *3 (D.
Kan. May 5, 2009).
construing the Pretrial Order liberally, no separate quantum
meruit claim against Dinsdale remains. And, the court finds
no injustice will occur by excluding the quantum meruit claim
from trial. Plaintiff's unjust enrichment claim-which
asserts the same theory for recovery-remains. On these
circumstances, the court concludes that the plaintiff waived
the separately pleaded quantum meruit claim when it did not
include it in the Pretrial Order. The court thus excludes the
quantum meruit claim from the trial.
Right to Trial by Jury on Unjust Enrichment Claims
Supreme Court has made clear that in diversity actions
“the right to a jury trial in the federal courts is to
be determined as a matter of federal law . . .
.” Simler v. Conner, 372 U.S. 221, 222 (1963)
(emphasis added); see also Elm Ridge Expl. Co., LLC v.
Engle, 721 F.3d 1199, 1221 (10th Cir. 2013). While
“the substantive dimension of the claim asserted [in a
diversity case] finds its source in state law, . . . the
characterization of that state-created claim as legal or
equitable for purposes of [deciding] whether a right to jury
trial is indicated must be made by recourse to federal
law.” Simler, 372 U.S. at 222 (internal
Seventh Amendment preserves the right to a jury in
“[s]uits at common law, where the value in controversy
shall exceed twenty dollars.” U.S. Const. amend. VII.
Thus, a constitutional right to a trial by jury attaches to
an action involving “‘rights and remedies of the
sort traditionally enforced in an action at law, rather than
an action in equity . . . .'” Fischer Imaging
Corp. v. Gen. Elec. Co., 187 F.3d 1165, 1168 (10th Cir.
1999) (quoting Pernell v. Southall Realty, 416 U.S.
363, 375 (1974)). It is “[t]he nature of the issues
presented and the remedies sought [that] determines whether
an action qualifies as ‘legal'” or equitable.
J.R. Simplot v. Chevron Pipeline Co., 563 F.3d 1102,
1115 (10th ...