Submitted: May 19, 2014
Upon Defendant Verizon Federal, Inc.'s Motion to Dismiss
Lawrence Harbin, Esquire, Harbin & Hein PLLC, Washington, District of Columbia and Xiaojuan Carrie Huang, Esquire, Wilmington, Delaware Attorneys for Plaintiff.
Sean F. Murphy, Esquire, and Christopher L. Harlow, Esquire, McGuireWoods LLP, McLean, Virginia and Gregory P. Williams, Esquire, and Chad M. Shandler, Esquire, Richards, Layton & Finger, P.A., Wilmington, Delaware Attorneys for Defendant.
JURY TRIAL DEMANDED
ERIC M. DAVIS JUDGE
This is a breach-of-contract action brought by Plaintiff Beta Data Services, Inc. ("Beta Data") against Defendant Verizon Federal, Inc. ("Verizon"). Beta Data seeks unpaid amounts charged to Verizon under a purported retroactive increase in billing rates for subcontractor services. Beta Data alleges that Verizon was incorrectly billed at a lower, five-year contract rate as opposed to Beta Data's higher, month-to-month rate. Beta Data contends that it charged the lower rate because the parties intended to enter into a five-year written agreement that was never formally executed by the parties.
In the Complaint, Beta Data seeks $4, 815, 941.86 in damages. Beta Data contends that this amount represents the difference between Beta Data's higher, month-to-month rate and the amounts originally invoiced, which Beta Data alleges were improperly billed to Verizon under the lower, five-year rate. Verizon has now moved to dismiss Beta Data's claim, arguing that Beta Data's claims are (i) based on an unenforceable agreement-to-agree, (ii) barred by the statute of limitations and (iii) contrary to the parties' prior course of dealing. For the reasons set forth in this opinion, Defendant Verizon Federal, Inc.'s Motion to Dismiss (the "Motion") is DENIED.
Between May 2005 and April 2010, Beta Data provided subcontractor services to Verizon through an executed written agreement. The term of the written agreement was for one year with annual renewal terms available under four one year options. Verizon exercised all four options. As pled in the Complaint, Beta Data provided Verizon with various pricing terms for continued subcontractor services in April 2010. According to Beta Data, Beta Data provided Verizon with both month-to-month and five-year billing rates. Beta Data alleges that Verizon opted for the five-year term in order to reduce costs. Beta Data further alleges that it extended the five-year pricing with the understanding that a written agreement would soon follow. The parties never entered into that written agreement.
On May 4, 2011, the parties held a teleconference. At that teleconference, Verizon announced that Beta Data's services were to be provided on a month-to-month basis. Beta Data alleges that Beta Data then explained that, in that case, Verizon had been improperly billed at the five-year rate as opposed to the higher, month-to-month rate. Beta Data contends that Verizon then promised again to submit a written subcontractor agreement. After the teleconference, Beta Data continued to bill Verizon at the lower five-year rate.
In the beginning of January 2013, Beta Data alleges that Verizon canceled some of its subcontractor services, announced that the remaining services were subject to "at will" cancellation and informed Beta Data that it would not execute a new written agreement. On January 29, 2013, Beta Data's counsel, Lawrence Harbin, sent a letter to Verizon indicating that Beta Data would be adjusting its subcontractor pricing structure to reflect month-to-month pricing for services previously rendered. Thereafter, beginning in February 2013, Beta Data included a notation on its invoices that its rates were subject to change after resolving the billing rates.
Mr. Harbin sent a second letter to Verizon on March 7, 2013. On June 4, 2013, Mr. Harbin telephoned Verizon's Vice President and Deputy General Counsel, Jonathan Spear. According to Verizon, Mr. Spear indicated that he would investigate the matter before providing any response. On June 27, 2013, Mr. Spear telephoned Mr. Harbin and stated that he still lacked adequate information for a response but would contact Beta Data within a week. The next day, Mr. Spear e-mailed Mr. Harbin. In that e-mail, Mr. Spear requested a copy of the contract in question with references to the clauses on which Beta Data was relying for the price-adjustment. Mr. Harbin replied that Beta Data hoped to locate the agreement executed in 2005 within the next couple of days and provide it to Mr. Spear. Mr. Harbin also indicated to Mr. Spear that Beta Data took the position that the 2005 agreement had expired.
On July 31, 2013, Mr. Harbin e-mailed Mr. Spear with an attached letter that laid out Beta Data's position on the facts regarding the cost of Beta Data's services. On August 2, 2013, Verizon's Assistant General Counsel, Marion Spina, acknowledged Verizon's receipt of Mr. Harbin's letter and indicated that Verizon would contact Beta Data in the next week with a response. Mr. Spina responded to the letter on August 16, 2013. Mr. Spina indicated that there was no disagreement that the prior contract expired in 2010. Further, Mr. Spina stated that Verizon saw no basis on which Beta Data was entitled to adjust ...