Submitted: April 2, 2014
David A. Dorey, Esquire (argued) and Elizabeth Sloan, Esquire, Blank Rome LLP, Attorneys for Plaintiff Mark Furnari.
Vernon R. Proctor, Esquire and Melissa N. Donimirski, Esquire, Proctor Heyman LLP, and Robert Lash, Esquire (argued), pro hac vice, Herzfeld & Rubin, P.C., Attorneys for Defendants Wallpang, Inc. f/k/a Shapewriter, Inc. and Waldemar Harry Greiner.
David E. Ross, Esquire and Garrett B. Moritz, Esquire, Seitz Ross Aronstam & Moritz LLP, and Michael A. Charish, Esquire (argued), pro hac vice, 1133 Broadway, Attorneys for Defendant Nuance Communications, Inc.
Jan R. Jurden, Judge
In May 2010, Defendants Shapewriter, Inc. ("Shapewriter") and Nuance Communications, Inc. ("Nuance") executed an asset sale agreement. Plaintiff Mark Furnari ("Furnari" or "Plaintiff"), a Shapewriter employee, claims he facilitated the deal and is owed commission. Plaintiff filed the instant suit against Shapewriter for, inter alia, breach of contract, and has named Nuance as a successor-in-interest. Defendants Shapewriter and Nuance have separately moved to dismiss pursuant to Superior Court Civil Rule 12(b)(6), or alternatively for summary judgment. For the following reasons, Defendants' motions are DENIED, in part, and GRANTED, in part.
Defendant Wallpang, Inc. ("Wallpang") formerly known as Shapewriter, a Delaware corporation based in Ontario, Canada, developed and licensed software applications for use in the wireless communication industry. Plaintiff and Shapewriter's relationship began in March 2009, when Shapewriter scouted Plaintiff to take over its Business Development and Marketing Group and lead the company's external strategy and licensing for prospective customers. In April 2009, Plaintiff and Shapewriter executed an employment contract naming Plaintiff vice president of Business and Strategic Partner Development. The employment contract detailed Plaintiff's compensation to include "a percentage of the company, deferred salary of $200, 000, [and] 5% commission on any business activity he was party to, " in addition to reimbursement of all business related expenses.
In late July 2009, Defendant Waldemar Harry Greiner ("Greiner"), Shapewriter's President, told Plaintiff that the owners wanted to sell Shapewriter.Greiner and Plaintiff discussed strategies to sell Shapewriter to Dell or Nuance.Greiner verbally agreed to pay Plaintiff 15% commission on any sale proceeds.
Between March and November 2009, Plaintiff alleges Greiner and other Shapewriter executives made several "affirmative misrepresentations […] to induce Plaintiff into agreeing to market Shapewriter." Those alleged misrepresentations included: (1) that Plaintiff would receive a written contract detailing his commission upon Shapewriter's sale; (2) that Plaintiff would receive a commission upon Shapewriter's sale; (3) that Plaintiff would be reimbursed for all expenses incurred as part of Shapewriter's marketing and discussions with potential buyers; and (4) that Plaintiff would be involved in the discussions with any potential buyer. Plaintiff alleges he reasonably relied on all of Defendants' misrepresentations.
In August and September 2009, Plaintiff discussed merger and acquisition possibilities with Nuance. Nuance was interested and ultimately signed a commitment letter. Plaintiff alleges that "[d]uring the Shapewriter/Nuance negotiations, Shapewriter, through Greiner, committed to continuing negotiations with the understanding that [Plaintiff] would not be included [….]" While Shapewriter was in lockdown negotiations with Nuance, Greiner told Plaintiff that Shapewriter was no longer on the market. Subsequently, however, Shapewriter encouraged Plaintiff to seek alternative buyers.
In December 2009, after several discussions, Greiner and Plaintiff drafted a "revised agreement" confirming Plaintiff's commission on a sale ("the Letter Agreement"). Greiner sent the Letter Agreement to Plaintiff, Plaintiff signed and returned the agreement with a hand-written note, "[p]lease countersign, return fully executed Agreement." The Letter Agreement detailed that Plaintiff would "help in any and every way on" a deal with Dell and, if Shapewriter sold to Dell, Furnari would receive a 15% commission. If "and only if" Shapewriter chose to use Dell as leverage to pressure Nuance into buying Shapewriter, then Furnari would receive a 10% commission. The Letter Agreement also stated that Furnari would be reimbursed for outstanding expenses and "abandon [his] salary, stock ownership and other commissions previously discussed." Shapewriter then continued its discussions with Nuance without Plaintiff's involvement.
Plaintiff alleges that between January and March 2010, Greiner informed him that Nuance negotiations had stalled. Around February 2010, Greiner asked Plaintiff to obtain a letter of interest from Dell ("the Dell Letter"), which Shapewriter would use as leverage in the Nuance negotiations. In late February 2010, Greiner informed Plaintiff that Nuance was no longer interested in Shapewriter. But, in early March, and after receiving the Dell Letter, Nuance called a meeting and "within 24 hours thereafter proffered the deal that was ultimately accepted." Shapewriter and Nuance entered an Asset Sale Agreement ("ASA") for $7 million, executed on May 18, 2010. The deal closed and Plaintiff has not been paid commission.
Important to note is that the ASA specifically categorizes certain "Purchased Assets" and "Excluded Assets." The "Excluded Assets" category lists "all rights existing under any Contract that is not a Shapewriter Purchased Contract, including the Contracts set forth on Section 1.3(b)(iv) of the Disclosure Schedule."Contained in the Disclosure Schedule's section 1.3(b)(iv) is the "[L]etter [A]greement, dated December 22, 2009, by and between Shapewriter, Inc. and Mark Furnari."
Additionally, the ASA directs that $1 million worth of Nuance shares were to be placed in escrow as "partial security for  indemnity obligations." The ASA further directs Nuance to retain the escrowed funds "in the event Nuance becomes aware of third party claims which Nuance reasonably believes may result in a demand for indemnification."
On September 1, 2010, Plaintiff filed suit against Greiner and Shapewriter in Florida state court. Greiner and Shapewriter removed the case to federal district court, and the action was dismissed in January 2011 for lack of jurisdiction. In turn, Plaintiff filed against Nuance on May 26, 2011, alleging tortious interference, unjust enrichment, and violation of the Florida Deceptive Trade Practices Act.That case was also dismissed for failure to state a claim.
As a result of the initial Florida state court action, in November 2010, Nuance filed a notice to an escrow agent ordering said agent to not distribute funds held in escrow, in accordance with the ASA. On December 21, 2012, Greiner, as representative to several companies,  sued Nuance in the Delaware Court of Chancery. Greiner alleges in that suit that Nuance is wrongfully withholding the escrowed funds, and that "the liabilities purportedly at issue in the [Florida suit] were excluded from those assumed by Nuance in the agreement, so Nuance could not have been held liable for them."
On April 26, 2013, Plaintiff filed the instant case alleging six claims: fraud in the inducement stemming from the alleged misrepresentations made between March and November 2009 (Count I); breach of the commission contract based on Shapewriter's failure to pay (Count II); unpaid wages also based on Plaintiff's unpaid commission (Count III); quasi contract/quantum meruit and unjust enrichment relief based on Plaintiff's efforts to execute a sale (Counts IV and V); a declaratory judgment that Nuance may hold the escrowed funds in abeyance until this litigation is concluded (Count VI). Despite his claims, Plaintiff did not include the Letter Agreement with his initial complaint.
II. DEFENDANTS' ARGUMENTS
Defendants move to dismiss all claims pursuant to Superior Court Civil Rule 12(b)(6), or in the alternative, for summary judgment under Superior Court Civil Rule 56. Shapewriter presents several arguments: (1) Plaintiff's claims are barred by the Statute of Limitations; (2) Plaintiff's fraud claim is duplicative of his breach of contract claim; (3) Plaintiff failed to plead fraud with specified particularity; (4) Plaintiff's quasi-contract claims are duplicative because a valid contract exists; (5) Plaintiff does not have standing to seek declaratory judgment as to the escrowed funds; (6) this Court lacks personal jurisdiction over Greiner; and (7) Nuance is not a successor-in-interest. Nuance adopted Shapewriter's arguments, but submitted its own motion to dismiss in which it elaborated on the successor-in-interest argument. The Court will address Defendants' arguments seriatim.
A motion to dismiss may only be granted where "it appears with reasonable certainty that, under any set of facts that could be proven to support the claims asserted, the plaintiff would not be entitled to relief." In reviewing a motion to dismiss, the record must be viewed in a light most favorable to the non-moving party and all reasonable inference considered most strongly in Plaintiff's favor.All well-pled allegations are taken as true.
As a general rule, if "matters outside the pleadings are presented to and not excluded by the Court, the motion [to dismiss] shall be treated as one for summary judgment." Two exceptions to the general rule arise where: (1) an extrinsic document is integral to a plaintiff's claim and is incorporated into the complaint by reference, and (2) the document is not being relied upon to prove the truth of its contents. Where an agreement plays a significant role in the litigation and is ...