The Complaint, arguably, may be said to adequately plead two of the four elements necessary in a breach of implied contract claim. The implied contract claim could be said to plead a lawful object (a book sale), and identifiable parties capable of contracting (Plaintiffs as purchasers, and Relin, Mortenson, and Penguin as authors and publisher). However, consent and consideration are not shown.
Plaintiffs claim to have paid $15 consideration to receive the Books. Whether Penguin, Mortenson, Relin or someone else received Plaintiffs' money is not asserted. Penguin, as publisher, arguably may have received a portion of the money, but the Complaint does not indicate whether Relin or Mortenson received any part of the consideration. Although further investigation might reveal a contract between Penguin and the authors entitling Relin and Mortenson to some share ofthe profits, the Complaint does not so allege.
Even if consideration were not at issue, consent has not been shown. Plaintiffs fail to establish whether Mortenson, or Relin, or Penguin offered the Books for sale, instead naming all three as having offered the Books for sale to purchasers as nonfiction pieces of literature.
The Montana Supreme Court has determined that ifan implied contract is to said to exist, the four elements ofa contract must still be present and some form of communication and relationship must exist between the parties. See CB&F Development Corp. v. Culbertson State Bank, 844 P.2d 85 (Mont. 1992); Lythgoe v. First Sec. Bank ofHelena, 720 P.2d 1184 (Mont. 1986); In re Marriage ofRock, 850 P.2d 296 (Mont. 1993); McNulty v. Bewley Corp., 596 P.2d 474 (Mont. ]979); St. James Cmty. Hosp. v. Dept. of Social and Rehabilitation Services, 595 P .2d 379 (Mont. 1979). Such is not the case here.
The conclusion reached in Jaillet and First Equity that no privity exists between a publisher or author, and a purchasing reader is sound. Plaintiffs here failed to cite any law supporting that a contract existed between the parties and, while the conduct ofthe parties may be considered in assessing whether an implied contract existed, the abstract facts pleaded here do not rise to that level. Neither the contract claim nor the implied contract claim survives. Both must be dismissed.
D. Remaining Claims
"[U]njust enrichment is an equitable means of preventing one party from benefitting from his ... wrongful acts." Hinebauch v. McRae, 264 P.3d 1098, 1103-04 (Mont. 2011)(citing Estate of Pruvn v. Axmen Propane, Inc., 223 P.3d 845 (Mont. 2009)(citations omitted). Even "in the absence of a contract between parties, [unjust enrichment] may create an implied contract in law." Id. To prevail on a claim for unjust enrichment, a "plaintiffmust show some element of misconduct or fault on the part of the defendant, or that the defendant somehow took advantage of the plaintiff." Randolph V. Peterson, Inc. v. J.R. Simplot Co., 778 P.2d 879, 883 (Mont. 1989)(citing Brown v. Thornton, 432 P.2d 386, 390 (Mont. 1967». As previously discussed, Plaintiffs have failed to sufficiently allege reliance, cognizable injury, and misconduct against the Defendants. The Unjust Enrichment claims (Counts VII and X) are dismissed.
An injunction "is appropriate [only] when a party demonstrates' (1) that it has suffered an irreparable injury; (2) that remedies available at law ... are inadequate ... ; (3) that, considering the balance ofhardships between the [parties], a remedy in equity is warranted; and (4) that the public interest would not be disservcd by a permanent injunction.'" Northern Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th Cir. 2007)(citing eBay Inc. V. MercExchal1Z'h L.L.C., 547 U.S. 388, 391 (2006). Plaintiffs fail to allege an "irreparable injury" or that remedies at law are inadequate, as evidenced by Plaintiffs' specifIc damage request'(the price of the books)31 Plaintiffs also fail to demonstrate that, in considering the hardship between the parties, a remedy in equity is warranted. The Injunction claim (Count XI) fails and is dismissed.
