United States District Court, D. Nebraska
REINKE MANUFACTURING CO., INC., a Nebraska Corporation, Plaintiff,
ELECSYS CORPORATION and AGJUNCTION f/k/a HEMISPHERE, a/k/a AGJUNCTION INC. f/k/a HEMISPHERE GPS, INC., a/k/a AGJUNCTION LLC f/k/a HEMISPHERE GPS LLC, Defendants. AGJUNCTION f/k/a HEMISPHERE, a/k/a AGJUNCTION INC. f/k/a HEMISPHERE GPS, INC., a/k/a AGJUNCTION LLC f/k/a HEMISPHERE GPS LLC, Third-Party Plaintiff,
HEMISPHERE GNSS (USA) INC., a Delaware corporation, Third-Party Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
Manufacturing Co., Inc., brings this action against Elecsys
Corporation and AgJunction generally alleging that AgJunction
supplied defective global positioning system
(“GPS”) units to Elecsys, which placed the units
in “Blue Box Assemblies” and sold the assemblies
to Reinke. Reinke then installed such assemblies in its
center-pivot irrigation systems. Reinke alleges that shortly
after it began using the Blue Box Assemblies, it began
receiving customer complaints, and Reinke was ultimately
required to replace the defective products at the cost of $3,
000, 000. In turn, AgJunction sues Hemisphere GNSS (USA)
Inc., (“HGNSS”) for supplying the defective GPS
products to AgJunction that resulted in Reinke's lawsuit
against AgJunction. As against HGNSS, AgJunction asserts
claims for breach of contract, contractual indemnity, and
common-law indemnity or contribution. (Filing No. 95, Amended
Third-Party Complaint.) Contrary to HGNSS counsel's
statement that AgJunction “does not specifically cite
any allegations in the [Amended Third-Party Complaint] that
are pled in the alternative” (Filing No. 108 at CM/ECF
p. 8), AgJunction's Amended Third-Party Complaint
expressly alleges its equitable indemnity and contribution
claim “[a]lternatively.” (Filing No. 95 at CM/ECF
has resulted in 361 pages of briefing and
evidence in support and opposition, HGNSS moves to
dismiss AgJunction's claim for common-law or equitable
indemnity or contribution pursuant to Fed.R.Civ.P. 12(b)(6).
(Filing No. 99.)
confronted with a Rule 12(b)(6) motion, all the factual
allegations contained in the complaint are accepted as true,
and the complaint is reviewed to determine whether its
allegations show that the pleader is entitled to relief.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57
(2007). If the complaint does not state “enough facts
to state a claim to relief that is plausible on its face,
” it must be dismissed for failure to state a claim.
Id. at 570. The plaintiffs must state enough facts
to “nudge their claims across the line from
conceivable to plausible.” Id. “[A]
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and
that a recovery is very remote and unlikely.”
Id. at 556 (internal quotation and citation
basis for HGNSS's Rule 12(b)(6) motion is that when
parties have expressly contracted regarding the duty to
indemnify, “the independent doctrines of equitable
indemnity or contribution” are inapplicable. Therefore,
HGNSS argues, AgJunction's claims for equitable indemnity
and contribution must be dismissed because the parties have a
written agreement that defines HGNSS's duty to indemnify
AgJunction. (Filing No. 99, Motion to Dismiss, at
CM/ECF p. 2.)
is a difference between pleading and actual recovery. While
the state law applicable to AgJunction's claims against
HGNSS might preclude simultaneous recovery under
both contractual and equitable theories of indemnity, the
Federal Rules of Civil Procedure explicitly provide that
pleadings “may include relief in the
alternative” and allow parties to “set out 2 or
more statements of a claim . . . alternatively or
hypothetically, either in a single count . . . or in separate
ones” and “state as many separate claims . . . as
it has, regardless of consistency.” Fed.R.Civ.P. 8(a)
& (d) (Westlaw 2018). See Fastrich v. Cont'l Gen.
Ins. Co., No. 8:16CV487, 2017 WL 3610535, at *8 (D. Neb.
Aug. 21, 2017) (“the right to plead and argue in the
alternative is a matter of procedure and, as such, is
governed by federal law”; denying motion to dismiss
quasi-contract claim when pled alternatively to express
contract claim (internal quotations and citations omitted));
J & J Sports Prods., Inc. v. Argueta, 224
F.Supp.3d 700, 702 (W.D. Ark. 2016) (while plaintiff could
recover under only one of two mutually exclusive federal
statutes, plaintiff was permitted to plead two alternative
theories of liability under Fed.R.Civ.P. 8); Wines, Vines
& Corks, LLC v. First Nat'l of Nebraska, Inc.,
No. 8:14CV82, 2014 WL 12665802, at *4 (D. Neb. Aug. 20, 2014)
(“A plaintiff may plead alternative and inconsistent
legal causes of action arising out of the same facts.”
(citing Fed.R.Civ.P. 8(d)(2) & 8(d)(3))); Superior
Edge, Inc. v. Monsanto Co., 44 F.Supp.3d 890, 900 (D.
Minn. 2014) (while state law prevented recovery under both
express contract and quasi-contract claims, Fed.R.Civ.P. 8(a)
and (d) allows parties to plead alternative theories of
relief, regardless of consistency; to recover under
quasi-contract theory, plaintiff will need to prove damages
outside scope of contract, but “it is not required to
do so at this motion to dismiss stage”); Kehrer
Bros. Constr., Inc. v. Intercoastal Roofing Sols., LLC,
No. 3:13-CV-0085-JAJ, 2013 WL 11740243, at *2 (S.D. Iowa Dec.
19, 2013) (unpublished) (denying motion to dismiss
alternative theory of recovery, holding that plaintiff was
allowed to plead equitable theories in the alternative to
express contract claim because Fed.R.Civ.P. 8(d)
“allows a plaintiff to plead alternative theories of
recovery even if they are inconsistent with each
other”; emphasizing “there is an important
distinction between pleading and recovery”);
Kinetic Co. v. Medtronic, Inc., 672 F.Supp.2d 933,
948 (D. Minn. 2009) (Fed. R. Civ. P. 8 allows plaintiff to
plead inconsistent facts in support of alternative theories
of recovery; “At a later stage it may be necessary for
plaintiff to elect a theory, but at the pleading stage it is
not.” (citing Babcock & Wilcox Co. v. Parsons
Corp., 430 F.2d 531, 536 (8th Cir. 1970))).
of a contractual indemnity claim hinges upon application of
the language of the indemnity agreement to the claim,
including determining whether the court must interpret the
contractual indemnity language due to ambiguity, whether the
indemnity language is enforceable, and whether the claim and
alleged damages fall within the scope of the indemnity
provision. Scott M. Seaman & Jason R. Schulze,
Allocation of Losses in Complex Insurance Coverage Claims
§ 16:4 (Dec. 2017 Update). These are not matters to
be taken up at the pleading stage when parties are entitled
to cover their bases by pleading alternative theories of
recovery under Fed.R.Civ.P. 8(a) and (d).
HGNSS's Motion to Dismiss pursuant to Fed.R.Civ.P.
12(b)(6) (Filing No. 99) will be denied.
ORDERED that HGNSS's Motion to Dismiss AgJunction's
third claim for relief for equitable indemnity and
contribution pursuant to Fed.R.Civ.P. 12(b)(6) (Filing No.
99) is denied without prejudice to reassertion in a
properly supported motion for summary judgment.
 The court has not relied on
any of this evidence in reaching its decision. In any event,
on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), I
may consider the contracts upon which the Plaintiff's and
Third-Party Plaintiff's claims rest because they are
“embraced by the pleadings” and not considered
“matters outside the pleadings” for purposes of
Fed.R.Civ.P. 12(d). Gorog v. Best Buy Co., 760 F.3d
787, 791 (8th Cir. 2014).
In suits based on diversity jurisdiction, federal courts
apply federal law to matters of procedure. Archer v.
Pavement Specialist, Inc., 278 F.3d 845, 847 (8th Cir.
HGNSS cites several cases in support of its argument that the
existence of an express indemnity agreement precludes a claim
for implied indemnity and contribution. (Filing No. 108 at
CM/ECF p. 15.) However, out of the six United States cases
HGNSS cites for this proposition, five of them are
distinguishable because they did not involve motions to
dismiss, but rather motions for summary judgment, an appeal
after a bench trial, and an appeal from what the court
described as a “trial” on depositions, documents,
and trial briefs. As stated above, HGNSS may be correct that
the plaintiff can only recover under one theory
(which would have been the issue in the five cases at the
motion for summary ...