C. McGivney, Esquire John G. Harris, Esquire Berger Harris
Michael A. Pittenger, Esquire Tracey E. Timlin, Esquire
Potter Anderson & Corroon LLP
Counsel for Defendant: Tony Caliendo, Esquire Perkins Coie
L. MEDINILLA JUDGE.
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
and Procedural Background
allegations in the Complaint arise from contract dispute
between BVOIP LLC ("Plaintiff) and Callinize, Inc.
d.b.a. Tenfold ("Defendant"). Plaintiff provides
hosted voice-over-IP ("VoIP") services to managed
service providers across the United States. BVOIP also
creates and licenses software integration
tools. Defendant produces software integration
tools for third parties.
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."The ConnectWise software solution was to be
completed by September 25, 2016; the AutoTask software
solution by November 25, 2016 (collectively the
"Software"). 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 software. 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
completed.Plaintiff then paid Defendant certain
monies under an agreed-upon billing paradigm. 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."
missed its deadline as to the Connect Wise-related
development and it was clear that it was not going to meet
its AutoTask-related software development obligations on
time. Plaintiff provided Defendant with
additional time to complete the project. One year
later in November of 2017, Defendant still had not produced
or delivered working prototypes of the
Software. On November 14, 2017, Defendant
terminated the Agreement without cause. Plaintiff
sought-but Defendant refused-to return its investment under
the Money Back Guarantee.
October 9, 2018, Plaintiff filed its Complaint, which
contains one count of breach of contract and seeks damages of
$50, 000. On November 7, 2018, Defendant filed its
Motion to Dismiss. On November 14, 2018, Plaintiff filed an
Opposition to Defendant's Motion.
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. Even vague allegations are considered
well-pleaded if they give the opposing party notice of a
claim. The Court must draw all reasonable
inferences in favor of the non-moving party; however, it
will not "accept conclusory allegations unsupported by
specific facts," nor will it "draw unreasonable
inferences in favor of the non-moving
party." Dismissal of a complaint under Rule
12(b)(6) must be ...