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<ins Coie LLP

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)).

