BVOIP LLC v. Callinize, Inc.

• Court: Superior Court of Delaware
• Decided: April 4, 2019
• Docket: N18C-10-105 VLM
• Status: Published

Opinion

SUPER|OR COURT oF THE

STATE OF DELAWARE

VIvIAN L. MEDlNILLA LEoNARD L. WlLLlAMs JusTlcE CENTER JUDGE 500 NoRTH KlNG STREET, sUlTE 10400

Wn_MlNGToN, DE 19801-3733

TELEPHONE (302) 255-0626

April 4, 2019 Peter C. McGivney, Esquire Michael A. Pittenger, Esquire John G. Harris, Esquire Tracey E. Tirnlin, Esquire Berger Harris LLP Potter Anderson & Corroon LLP 1105 N. Market Street, Suite 1100 1313 North Market Street Wilrnington, DelaWare 19801 Hercules Plaza, 6th Floor

Wilmington, Delaware 19899

Of Counsel for Defendant:

Tony Caliendo, Esquire

Perl

2901 N. Central Ave. Suite 2000 Phoenix, Arizona 85012-2788

Re: BVOIP LLC v. Callinize, Inc. d.b.a. Tenfold C.A. No.: N18C-10-105 VLM

Dear Counsel:

This is the Court’s ruling on Defendant’s Motion to Dismiss. The Court heard oral arguments on January 14, 2019. For the reasons stated below, Defendant’s Motion is DENIED.

Facmal and Procedural Backgrouml The allegations in the Cornplaint arise from contract dispute between BVOIP

LLC (“Plaintift”) and Callinize, Inc. d.b.a. Tenfold (“Defendant”). Plaintiff provides hosted voice-over-IP (“VoIP”) services to managed service providers

across the United States.1 BVOIP also creates and licenses software integration tools.2 Defendant produces software integration tools for third parties.3

On or about July 29, 2016, the parties allegedly entered into an Agreement where Defendant was “to create certain computer software that would allow BVOIP’s customers to integrate VoIP technology with two highly popular remote monitoring and management platforms offered by ConnectWise and AutoTask.”4 The ConnectWise software solution was to be completed by September 25, 2016; the AutoTask software solution by November 25, 2016 (collectively the “Software”).5 Under the Agreement, Plaintiff agreed to pay Defendant $3,000 per month and the parties agreed to a shared revenue model based on the number of users that licensed the software6 Defendant had a delay in progress, and released the $3,000 per month minimum, and began to charge Plaintiff on an account-by- account basis until the work was completed7 Plaintiff then paid Defendant certain monies under an agreed-upon billing paradigm.8 The Agreement included a “money back guarantee” provision (“Money Back Guarantee”), that entitled Plaintiff to a return of its entire investment if Defendant was “unable to deliver an integration in line with the mutually agreed upon requirements.”9

Defendant missed its deadline as to the ConnectWise-related development and it was clear that it was not going to meet its AutoTask-related software development obligations on time.10 Plaintiff provided Defendant with additional time to complete the project.11 One year later in November of 2017, Defendant still had not produced or delivered working prototypes of the Software.12 On November 14, 2017, Defendant terminated the Agreement without cause.13 Plaintiff sought_but Defendant refused_to return its investment under the Money Back Guarantee.14

1 Comp1.111.

2 Id.

3 Id. 11 2.

4 Id.

5 Ia’. 11 4.

6 Compl.11 5.

7 Id. 116.

8 Id. 11 7.

91d. 11 8.

10 Ia'. 11 9.

11 Compl. 1110.

12 Id. 1111.

13 Ia'. See Pl.’s Opp., EX. B. 14 Compl. 1111 12-13.

On October 9, 2018, Plaintiff filed its Complaint, which contains one count of breach of contract and seeks damages of 3550,000.15 On November 7, 2018, Defendant filed its Motion to Dismiss. On November 14, 2018, Plaintiff filed an Opposition to Defendant’s Motion.

Standard of Review

For purposes of a motion to dismiss for failure to state a claim under Superior Court Civil Rule 12(b)(6), all well-pleaded allegations in the complaint must be accepted as true.16 Even vague allegations are considered well-pleaded if they give the opposing party notice of a claim.17 The Court must draw all reasonable inferences in favor of the non-moving party;18 however, it will not “accept conclusory allegations unsupported by specific facts,” nor will it “draw unreasonable inferences in favor of the non-moving party.”19 Dismissal of a complaint under Rule 12(b)(6) must be denied if the plaintiff could recover under “any reasonably conceivable set of circumstances susceptible of proof under the complaint.”20

Discussion

Here, Plaintiff alleges that the Agreement is a valid and enforceable contract.21 Defendant claims Plaintiff does not adequately allege that a valid contract existed either because Plaintiff attached an unsigned document as the contract or because_ by the terms of the Agreement_it was not a binding contract.22 Defendant also argues that the allegations fail to state any cognizable breach or that the Complaint fails to allege facts that could have triggered the Money Back Guarantee.

Given that the well-pled allegations in the Complaint are accepted as true and all reasonable inferences are drawn in favor of Plaintiff, the allegations give Defendant notice of a claim of some contractual relationship between the parties.

15 Compl. 1111 14-21.

16 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).

17 ln re Gen. Motors (Hughes) S’hola’er Litig., 897 A.2d 162, 168 (Del. 2006) (quoting Savor, lnc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)).

18 Id.

19 Price v. E.I_ DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (internal citation omitted). 20 Spence, 396 A.2d at 968 (citing Klein v. Sunbeam Corp., 94 A.2d 385, 391 (Del. 1952)).

21 Compl.1115. See Pl.’s Opp.11 6.

22 Def.’s Mot.11 3.

“No rule says a breach of contract is subject to dismissal merely because the plaintiff fails to attach a signed copy.”23 Additionally, a factual issue in a case, “including the non-existent contract, will not be resolved on a Motion to Dismiss.’724 Also, Plaintiff’ s Complaint will not be dismissed for failure to attach an executed Agreement

The Complaint alleges a valid and enforceable contract existed between the parties, that Defendant breached the contract by unilaterally terminating it and not completing the Software for Plaintiff, and that Plaintiff was damaged as a result of Defendant’s alleged breach.25 These factual allegations in the Complaint are sufficient to put Defendant on notice of Plaintiff"s claim against it.

Thus, Defendant’s Motion to Dismiss is DENIED. IT IS SO ORDERED.

23 Broesler v. Wardens and Vestry ofSt. Barnabas Episcopal Church, 2011 WL 2174924, at *4 (Del. Super. Feb. 28, 2018) (finding that an unsigned copy of the alleged contract accompanied by specific allegations was sufficient to survive dismissal).

24 Sult v. American Sleep Medicine, Inc., 2011 WL 4688730, at *2 (Del. Super. Sept. 28, 2011) (citing Bryant v. Way, 2011 WL 2163606, at *5 (Del. Super. May 25, 2011)).