SAN FRANCISCO (Legal Newsline) – A federal judge partially granted a motion to dismiss in a lawsuit against Sysco Corp. over an alleged fuel surcharge.
U.S. District Judge Richard Seeborg dismissed two counts of plaintiff C&J Inc.'s complaint - breach of contract and unjust enrichment.
Seeborg issued the order on April 23 in the U.S. District Court for the Northern District of California.
Seeborg dismissed the two counts with leave to amend. He noted that the breach of contract claim needed more information. He also called the unjust enrichment claim duplicative of a breach of contract claim.
The judge ruled the complaint would proceed on claims of common law fraud, deceit and misrepresentation and violation of California's Unfair Competition Law.
C&J filed the lawsuit against Sysco in November alleging that Sysco listed a $5 fuel charge on various food and restaurant items ordered when the cost of fuel was already built into the price Sysco charged its customers.
Throughout 2011, 2016 and 2017, the fuel surcharge allegedly was added to the invoices given to C&J.
C&J claimed that Sysco was essentially double charging C&J and other small businesses.
C&J owns two businesses in California, known as Armadillo's Restaurant and Mario's Ristorante Italiano. While C&J paid the surcharge on the invoices, it did so thinking the surcharge was legitimate, the order states.
None of the invoices C&J received allegedly provided an explanation regarding the fuel surcharge.
C&J alleges other small businesses in California have likely also paid the excessive charge and believes Sysco misleads its customers regarding the fuel costs.
The plaintiff is represented by Lawrence G. Papale of the Law Offices of Lawrence G. Papale in St. Helena, California; and Joseph John Turri and Attila Panczel of Insurance Litigators & Counselors in Ukiah, California.
U.S. District Court for the Northern District of California case number: 3:17-cv-06553