Interestingly, Plaintiffs cite to Heberer v. Shell Oil Co., 744 S.W.2d 441 (Mo. 1988) at ECF No. 15 at 10.
In that case, Herberer sued defendants/respondents alleging they made false collateral misrepresentations to him by falsely representing he would be given the right to operate a new service station to be located at 1240 Brentwood Boulevard if he would extend his current 3-year lease as a Shell dealer at 1421 Brentwood Boulevard.
The Missouri Supreme Court, however, affirmed an entry of judgment in favor of defendants where Heberer claimed no damages from that operation, and none were proved at trial.
Id. at 443-44.
The Court also notes that several other cases cited by Plaintiffs were on review of class certification, which is a different standard of review than presented on a motion to dismiss.
See Craft v. Philip Morris Companies, Inc., 190 S.W.3d 368 (Mo. Ct. App. 2005); Plubell v. Merck & Co., 289 S.W.3d 707, 710 (Mo. Ct. App. 2009); Hope v. Nissan N. Am., Inc., 353 S.W.3d 68, 80 (Mo. Ct. App. 2011)(cited at ECF No. 15 at 9-10).
II. Injunctive Relief
As an additional basis, Defendants argue that Plaintiffs' claim in Count II for injunctive relief is improper because injunctive relief is a remedy, not a separate cause of action.
(ECF No. 10 at 20)(citing Freeman Health Sys. v. Wass, 124 S.W.3d 504, 509(Mo. Ct. App. 2004)("We determine from the plain reading of section 407.025 that it provides no independent cause of action entitling Appellant to equitable relief in this matter.")(emphasis in original)).
The Court agrees that injunctive relief is a remedy, and not an independent cause of action.
Henke v. Arco Midcon, L.L.C., 750 F. Supp. 2d 1052, 1059-60 (E.D. Mo. 2010)(citing Plan Pros, Inc. v. Zych, No. 8:08CV125, 2009 WL 928867, at *2 (D. Neb. Mar. 31, 2009) (dismissing injunction claim against defendants because "no independent cause of action for injunction exists")); Motley v. Homecomings Fin., LLC, 557 F.Supp.2d 1005, 1014 (D. Minn. 2008) (dismissing claim for injunction because it was "merely" a remedy, not a separate cause of action); Fletcher v. Conoco Pipe Line Co., 129 F.Supp.2d 1255, 1264 (W.D. Mo. 2001) ("The Court agrees that there is no 'injunctive' cause of action under Missouri or federal law. Instead, Plaintiffs must allege some wrongful conduct on the part of Defendant for which their requested injunction is an appropriate remedy.")).
Accordingly, Plaintiffs may seek injunctive relief as part of their prayer for relief in another claim, but this remedy cannot stand as a separate cause of action in Count II. Henke v. Arco Midcon, L.L.C., 750 F. Supp. 2d 1052, 1059-60(E.D. Mo. 2010); Secure Energy v. Coal Synthetics, LLC, No. 4:08CV1719 JCH, 2010 WL 1691184, at *3 (E.D. Mo. Apr. 27, 2010). For this additional reason, Count II is dismissed.
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss and/or Strike [ECF No. 9] is GRANTED.
A separate Judgment will accompany this Memorandum and Order.
Dated this 13th day of November, 2014.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE