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Power Restoration International, Inc. v. Pepsico, Inc.

United States District Court, Third Circuit

October 11, 2013

PEPSICO, INC., et al. Defendants.


GENE E.K. PRATTER United States District Judge


Plaintiff, Power Restoration International, Inc. (“Power Restoration”), brings this action against Pepsico, Inc. (“Pepsico”), Bottling Group, LLC (“Bottling Group”), and Frito-Lay Trading Company (Europe), Gmbh (“Frito-Lay”), alleging breach of contract (Count I), unjust enrichment (Count II), quantum meruit (Count III), and account stated (Count IV). Presently before the Court is Defendants’ motion to dismiss [Doc. No. 9] Plaintiff’s Complaint pursuant to Rule 12(b)(6). For the reasons that follow, the Court denies Defendants’ motion to dismiss with respect to Count I and II, but grants the motion with respect to Counts III and IV.[1]


Power Restoration designs and installs industrial and commercial electrical systems that allow customers to reduce electrical consumption. Compl. ¶ 2. Power Restoration alleges that Pepsico contacted Power Restoration in August 2010 for the purpose of developing Pepsico’s “Global Power Optimization Program” (the “Program”) – an audit and redesign of electrical power consumption at Pepsico’s facilities at various locations around the world. Id. at ¶¶ 15, 18. Power Restoration asserts that, at that time, Pepsico and Power Restoration entered into an oral contract whereby Power Restoration would act as the engineering and management entity for the coordination of the Program. Id. Power Restoration alleges that from August 2010 through March 2011, its representatives worked with Pepsico senior management to develop and implement the Program. Id. at ¶ 16. Of particular import to the claim, Power Restoration asserts that on February 15, 2011, “Pepsico confirmed its retention of Power Restoration with the issuance of the following letter of intent:”

This letter sets forth the intent of Pepsico, Inc. with regard to PRI Global Enterprises to procure, over the next 12 months, Power Quality Solutions to be installed at Pepsico facilities located in multiple countries. Pepsico intends to conduct at least 150 audits of these facilities. Pepsico anticipates most of these audits will deliver favorable ROI. Further, it is Pepsico’s intent to issue 100 Orders to PRI Global Enterprises for design and installation during this period, with an average cost of $300, 000 per installation.

Id. at ¶ 17. Power Restoration alleges that, as a preliminary step in implementing the Program, all three Defendants[3] also directed Power Restoration to perform energy audits at multiple facilities, for which Power Restoration would be compensated for labor, materials, equipment and other expenses. Id. at ¶ 18. Power Restoration alleges that it performed audits of Pepsico facilities in Iberia, Poland, and Turkey in February 2011, for which it billed Pepsico and Frito-Lay $101, 267.00 on May 27, 2011. Id. at ¶ 19.[4]

Power Restoration also alleges that it entered into written purchase order contracts[5] with Bottling Group for the installation of power saving systems at facilities in Hayward, California and Stone Mountain, Georgia, and a written agreement (in the form of a proposal from Power Restoration and email accepting the proposal) for work at a facility in Mississauga, Canada. Id. at ¶¶ 20-21.[6] Power Restoration alleges that it performed the work required under the purchase orders, for which it billed Bottling Group $59, 905.25 in an invoice dated November 1, 2011. Id. at ¶ 22.[7] Despite repeated demands for payment, Bottling Group has refused to pay Power Restoration the aggregate $161, 172.25 due under the foregoing agreements. Id. at ¶ 25.

Finally, Power Restoration alleges that Pepsico wrongfully terminated its overall contract with Power Restoration to move forward with the Program on May 27, 2011, resulting in approximately $9 million in lost profits, lost reputation and business interruption, all allegedly suffered by Power Restoration. Id. at ¶ 24.


A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Although Rule 8 of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed. R. Civ. P. 8(a)(2), in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and quotations omitted) (alteration in original), the Plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citation omitted).

To survive a motion to dismiss, the Plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Specifically, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). The question is not whether the claimant will ultimately prevail but whether the complaint is “sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 131 S.Ct. 1289, 1296 (2011) (citation omitted). Thus, assessment of the sufficiency of a complaint is “a context-dependent exercise” because “[s]ome claims require more factual explication than others to state a plausible claim for relief.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010) (citations omitted).

In evaluating the sufficiency of a complaint, the Court adheres to certain well-recognized parameters. For one, the Court “must consider only those facts alleged in the complaint and accept all of the allegations as true.” ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994)(citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see alsoTwombly, 550 U.S. at 555 (stating that courts must assume that “all the allegations in the complaint are true (even if doubtful in fact)”); Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (“[A] court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.”). The Court also must accept as true all reasonable inferences that may be drawn from the allegations, and view those facts and inferences in the light most favorable to the non-moving party. SeeRocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989); see alsoRevell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010). That admonition does not demand the Court turn its back on reality. The Court need not accept as true “unsupported conclusions and unwarranted inferences, ” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183– 84 (3d Cir. 2000) (citations and quotations omitted), or a Plaintiff's “bald assertions” or “legal conclusions, ...

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