United States District Court, M.D. Tennessee, Nashville Division
COMMUNICATIONS UNLIMITED CONTRACTING SERVICES, INC., Plaintiff,
COMDATA, INC., Defendant.
MEMORANDUM AND ORDER
A. TRAUGER United States District Judge
before the court is a Partial Motion to Dismiss (Docket No.
18) filed by the defendant, Comdata, Inc.
(“Comdata”), to which the plaintiff,
Communications Unlimited Contracting Services, Inc.
(“CUCS”), has filed a Response in opposition
(Docket No. 23). For the reasons discussed herein, the motion
will be granted in part and denied in part.
telecommunications company, employs technicians who perform
cable installation services. Comdata is a payment processing
company. The parties entered into a contract, pursuant to
which Comdata would issue fleet fuel cards with which CUCS
could prepay for its technicians' gas expenses incurred
traveling to installations. Comdata would then invoice CUCS
on a bi-monthly basis for its services and expenses incurred
on the fuel cards. The parties agreed that CUCS, using
Comdata's web-based platform, would set limits on the
amounts that could be spent on each card. (Docket No. 14
¶ 11-12.) CUCS believed the fuel limits it set were
weekly. (Id.) Instead, Comdata configured the limits
for the cards to be applied daily, allowing up to seven times
the intended allotment to be spent on each of the over 700
cards it issued to CUCS. (Id. at ¶ 14.) Within
a month, CUCS discovered the error and alerted Comdata, who
acknowledged the error and changed the configuration to
weekly limits. (Id. at ¶ 15.) The parties could
not reach an agreement on how to rectify the dispute.
brought suit and now alleges six causes of action: (I) breach
of contract; (II) misrepresentation and fraud; (III)
promissory fraud; (IV) breach of warranty; (V) conversion;
and (VI) unjust enrichment. CUCS alleges that it “has
suffered and incurred monetary damages in an approximate
amount over $195, 000 due to the Defendant's adverse
actions and, therefore, seeks damages to recoup said monies
and all remedies that justice will allow.”
(Id. at ¶ 22.)
deciding a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the court will “construe the
complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Direct v,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007);
Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.
2002). The Federal Rules of Civil Procedure require only that
a plaintiff provide “a short and plain statement of the
claim that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957). The court must determine only whether “the
claimant is entitled to offer evidence to support the claims,
” not whether the plaintiff can ultimately prove the
facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)).
complaint's allegations, however, “must be enough
to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). To establish the “facial
plausibility” required to “unlock the doors of
discovery, ” the plaintiff cannot rely on “legal
conclusions” or “[t]hreadbare recitals of the
elements of a cause of action, ” but, instead, the
plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). “[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. at 679;
Twombly, 550 U.S. at 556. According to the Supreme
Court, “plausibility” occupies that wide space
between “possibility” and
“probability.” Iqbal, 556 U.S. at 678.
If a reasonable court can draw the necessary inference from
the factual material stated in the complaint, the
plausibility standard has been satisfied.
moves to dismiss CUCS' conversion claim on the grounds
that CUCS' has not pled conversion with requisite
specificity. Because money is intangible, it is generally not
subject to a claim for conversion. See PNC Multifamily
Capital Institutional Fund XXVI Ltd. P'ship v. Bluff City
Cmty. Dev. Corp., 387 S.W.3d 525, 553 (Tenn. Ct. App.
2012). However, an exception exists “where the money is
specific and capable of identification or where there is a
determinate sum that the defendant was entrusted to apply to
a certain purpose.” Id. Comdata contends that
CUCS identifies no specific sum that was potentially
converted, evidenced by CUCS' claim for damages “in
an approximate amount over $195, 000.” This, Comdata
argues, is insufficiently specific to plead a viable
relevant inquiry is not whether CUCS has pled a specific
amount of damages incurred via conversion, but whether it
identifies the specific money that it claims has been
converted. “Identifiable funds are deemed a chattel for
purposes of conversion, and conversion may be established
where a party shows ownership or the right to possess
specific, identifiable money.” See Id.
(quoting 90 C.J.S. Trover and Conversion § 16 (2012)).
CUCS has identified with sufficient specificity the money it
claims Comdata converted-all funds spent by fuel cards issued
to CUCS employees beyond what they would have spent had
Comdata correctly configured its web-based platform. If not
for Comdata's incorrect configuration, CUCS would possess
that specific sum. The total calculation of those funds for
the purposes of damages need not be made at this stage.
However, the court notes that CUCS will not be entitled to
double recovery via conversion, should it succeed on other
claims such as breach of contract.
also moves to dismiss CUCS' claim for unjust enrichment.
An unjust enrichment claim is an alternative theory of
recovery and, therefore, is available only when there is no
existing, enforceable contract between the parties covering
the same subject matter. See Smith v. Hi-Speed,
Inc., No. W2015-01613-COA-R3-CV, 2016 WL 4546057 at *
15-16 (Tenn. Ct. App. Aug. 30, 2016). CUCS provides a copy of
the contract governing the parties' fuel card agreement.
Comdata does not dispute the validity of the contract.
CUCS' unjust enrichment claim will therefore be
Comdata contends that any potential damages are limited by a
liability limitation provision in the parties' contract.
Comdata requests that the court “dismiss any request by
CUCS for any monetary relief that is contrary to the relief
potentially recoupable” under the provision. (Docket
No. 19 pg. 6.) However, as Comdata acknowledges, Tennessee
law renders such provisions unenforceable in cases of fraud.
See Houghland v. Sec. Alarm & Servs., Inc., 755
S.W.2d 769, 773 (Tenn. 1988). Comdata has not moved to
dismiss CUCS' misrepresentation and fraud claim. Because