              IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                        IN AND FOR NEW CASTLE COUNTY
BETA DATA SERVICES, INC.,                      )
                                               )
                   Plaintiffs,                 ) C.A. No.: N13C-12-268 EMD
                                               )
              v.                               )
                                               ) JURY TRIAL DEMANDED
VERIZON FEDERAL, INC.,                         )
                                               )
                   Defendants.                 )



                                 Submitted:   May 19, 2014
                                 Decided:     August 26, 2014

                   Upon Defendant Verizon Federal, Inc.’s Motion to Dismiss
                                         DENIED

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.

DAVIS, J.

                                        INTRODUCTION

       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.

                                   FACTUAL BACKGROUND

       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




                                                  2
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.



                                                  3
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 the rates retroactively. Mr.

Spina also indicated that Verizon would be willing to consider a proposal for prospectively

revising the current billing rates.

         Mr. Harbin replied on September 19, 2013, stating that it was Beta Data’s position that

the negotiations subsequent to the expiration of the 2005 contract yielded a consummated five-

year agreement governing the parties’ relationship. Mr. Harbin also discussed potentially

adjusting the retroactive billing to apply either: (i) after May 4, 2011, when Verizon stated that

the contract was to be month-to-month; (ii) after January 10, 2013, when Verizon notified Beta

Data of cancellation of part of its contract; or (iii) some other point in time between those two

dates.

         On December 3, 2013, Verizon cancelled all remaining Beta Data services. On

December 12, 2013, Beta Data submitted invoices for a total of $4,815,941.86, representing the

difference between the month-to-month rate and the five-year rate for Beta Data’s subcontractor

services from May 2010 to November 2013.

         Beta Data filed the Complaint on December 30, 2013. Verizon filed the Motion with the

Court on March 10, 2014. Beta Data filed Plaintiff’s Response to Defendant Verizon’s Motion

to Dismiss (the “Response”) on May 7, 2014. The Court heard oral arguments on the Motion on

May 19, 2014 and took the Motion under advisement.




                                                 4
                                  PARTIES’ CONTENTIONS

A. VERIZON

       In the Motion, Verizon raises three arguments for dismissal. First, Verizon argues that

Beta Data’s claims do not set forth a valid enforceable contract. Verizon contends that Beta Data

is instead attempting to recover based on an agreement between the parties to negotiate a

contract in the future. Therefore, Verizon maintains that it is entitled to dismissal as Beta Data’s

claims are based on an unenforceable, agreement-to-agree.

       Second, Verizon argues that Beta Data’s claims are barred by the statute of limitations.

Verizon argues that the three-year statute of limitations on Beta Data’s claims began to run after

the first alleged “partial payment” in May 2010. Verizon contends that under a theory of

continuing breach, the statute of limitations should begin to run from the date of the first alleged

breach. Verizon argues that this date would be when Verizon made the first “partial payment.”

Verizon notes that Beta Data filed its Complaint on December 30, 2013 – a date more than three

years after the May 2010 partial payment. Verizon contends that Beta Data’s claims should be

dismissed.

       Third, Verizon argues that the course of dealing between the parties prevents Beta Data

from attempting to retroactively bill Verizon at a higher rate. Verizon points out that after the

expiration of the 2005 agreement Beta Data billed Verizon at the same rate for over three years

and that Verizon fully paid each monthly invoice during that period of time. Verizon contends

that therefore Beta Data does not have the right to retroactively modify its invoices in direct

contravention of the parties’ prior course of dealing.




                                                 5
B. BETA DATA

       In response, Beta Data argues that its claims are based on an enforceable, oral agreement

rather than merely an agreement-to-agree. Beta Data contends that, upon the expiration of the

2005 contract, Beta Data fully informed Verizon of Beta Data’s billing options and the

associated rates – including the five-year and month-to-month rates. Beta Data maintains that

upon being presented with those rates Verizon opted for the lower five-year rate and agreed to

submit a written contract at later date. Therefore, Beta Data argues that its claims are based on

an enforceable oral agreement between the parties, rather than a mere agreement-to-agree.

       In response to the statute of limitations argument, Beta Data contends that, in accordance

with the applicable statute of limitations, the Complaint was filed within the three years of the

date on which the statute of limitations began to accrue. Beta Data argues that the statute of

limitations for breach-of-contract actions begins to run from the date of the breach. Beta Data

argues that breach did not occur until Verizon repudiated its agreement on May 4, 2011 -- a time

less than three years before the date when Beta Data filed the Complaint. As such, Beta Data

contends that the applicable statute of limitations does not bar its claims.

       Finally, Beta Data contends that the parties’ course of dealing did not determine the terms

of the agreement. Beta Data argues that Verizon was fully informed of the billing rates Beta

Data was offering after the expiration of the 2005 contract. Beta Data maintains that the parties

came to an agreement when Verizon selected the five-year billing rate and that Verizon later

repudiated that agreement seeking a month-to-month agreement. Beta Data contends that the

terms of the agreement were determined by Verizon’s selection of billing options rather than the

course of dealing between the parties.




                                                  6
                                        STANDARD OF REVIEW

        Verizon seeks dismissal under Rule 12 of the Superior Court Rules of Civil Procedure.

With a motion to dismiss, the Court (i) accepts all well pleaded factual allegations as true, (ii)

accepts even vague allegations as well pleaded if they give the opposing party notice of the

claim, (iii) draws all reasonable inferences in favor of the non-moving party, and (iv) will only

dismiss a case where the plaintiff would not be entitled to recover under any reasonably

conceivable set of circumstances. 1 However, the Court must “ignore conclusory allegations that

lack specific supporting factual allegations.” 2

                                                DISCUSSION

A. AGREEMENT-TO-AGREE

        Verizon’s first argument is that Beta Data’s claims should be dismissed because they are

based on an unenforceable agreement-to-agree. Under Virginia law, “there must be mutual

assent of the contracting parties to terms reasonably certain under the circumstances in order to

have an enforceable contract.” 3 “Mere ‘agreements to agree in the future’ are ‘too vague and too

indefinite to be enforced.’” 4 To determine whether a contract is an enforceable contract or

merely an agreement to agree, Virginia courts consider whether the contract “includes the

requisite essential terms and also whether the conduct of the parties and the surrounding

circumstances evince the parties' intent to enter a contract.” 5

        Beta Data’s claims, as they are alleged in the Complaint, are not based merely on an

“agreement-to-agree.” Beta Data alleges that in April 2010, upon the expiration of the 2005

1
  Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 536 (Del. 2011); Doe v. Cedars
Academy, 09C-09-136, 2010 WL 5825343, at *3 (Del. Super. Oct. 27, 2010).
2
  Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998).
3
  Allen v. Aetna Cas. & Sur. Co., 222 Va. 361, 364, 281 S.E.2d 818, 820 (1981).
4
  Cyberlock Consulting, Inc. v. Info. Experts, Inc., 876 F. Supp. 2d 672, 678 (E.D. Va. 2012) (citing W.J. Schafer
Assocs, Inc. v. Cordant, Inc., 493 S.E.2d 512, 515 (Va. 1997); Beazer Homes Corp. v. VMIF/Anden Southbridge
Venture, 235 F. Supp. 2d 485, 490 (E.D. Va. 2002).
5
  Cyberlock, 876 F. Supp. 2d at 678.

                                                        7
contract, Beta Data presented Verizon with both a five-year agreement rate and a month-to-

month rate. Beta Data contends that Verizon opted for the five-year rate and agreed to submit a

written five-year subcontractor agreement. As pled, the facts tend to show that Beta Data and

Verizon did in fact intend to enter into a contract rather than only agreeing to negotiate a contract

at a later date.

        Further, according to the Complaint, although the billing rate and length of the contract

were not finalized in a written agreement, Beta Data did continue to provide subcontractor

services to Verizon. Moreover, Beta Data invoiced Verizon at the five-year rate and Verizon

paid for the subcontractor services. Even if the length of time and billing rates did remain to be

negotiated, the Complaint alleges enough facts for the Court to draw a reasonable inference that

the terms agreed to were certain enough to allow the parties to otherwise perform under the

contract. This indicates that the parties mutually assented to be bound by reasonably certain

terms at the time of the agreement. As the facts alleged indicate that the parties intended to enter

into a contract with reasonably certain terms, Beta Data does not base its claims on allegations of

a mere agreement-to-agree. Rather, Beta Data alleges that the parties entered into an enforceable

oral agreement with no uncertain terms. Drawing all reasonable inferences in favor of Beta

Data, the Court does not find that Verizon is entitled to dismissal based on this argument.

B. STATUTE OF LIMITATIONS

        Verizon’s second argument is that Beta Data’s claims are barred by the three year statute

of limitations for claims based on unwritten contracts. In Virginia, “actions upon any unwritten

contract, express or implied,” must be brought within three years of the date the cause of action




                                                 8
accrued. 6 Section 8.01-230 of the Virginia Code explains that in a breach-of-contract action, the

statute of limitations begins to run on the date of the breach:

           In every action for which a limitation period is prescribed, the right of action shall
           be deemed to accrue and the prescribed limitation period shall begin to run . . .
           when the breach of contract occurs in actions ex contractu and not when the
           resulting damage is discovered, except where the relief sought is solely equitable
           or where otherwise provided under § 8.01-233, subsection C of § 8.01-245, §§
           8.01-249, 8.01-250 or other statute. 7

           The question therefore becomes: When did Verizon commit the breach according to Beta

Data’s allegations? Verizon argues that, according to the Complaint, the breach would have

occurred when Verizon made the first alleged partial payment. Beta Data contends that the

breach occurred on May 4, 2011, when Verizon announced that it wished to proceed on a month-

to-month basis instead of under a five-year agreement. Alternatively, it could also be argued that

Verizon did not commit a breach until it began to cancel Beta Data’s services.

           Regardless, based on the facts as pled in the Complaint, the earliest possible date in

which a breach could have occurred was on May 4, 2011. Beta Data alleges that, until May 4,

2011, Verizon had given no indication that it wished to proceed on a month-to-month basis

instead of on a five-year agreement. Also, the Complaint sets out that every invoice sent by Beta

Data to Verizon was paid in full. Therefore, until May 4, 2011, Verizon had not committed any

alleged act that could be considered a breach under Beta Data’s version of the agreement.

           Beta Data filed the complaint on December 30, 2013. May 4, 2011 is less than three

years from that date. Therefore, as Beta Data filed the Complaint within the three-year statute of

limitations applicable to unwritten contracts, the statute of limitations does not bar Beta Data’s

claims.



6
    Va. Code Ann. § 8.01-246.
7
    Va. Code Ann. § 8.01-230 (emphasis added).

                                                     9
C. COURSE OF DEALING

        Verizon’s third argument is that, based on the course of dealing between the parties, an

implied-in-fact contract was formed. Verizon contends, under this theory, that any attempt by

Beta Data to retroactively raise the rates on that contract would be unenforceable due to a lack of

additional consideration. In Qwest Commc’ns v. Global NAPs, the United States District Court

for the Eastern District of Virginia dismissed a party’s counterclaim because there was no

additional consideration offered to justify a retroactive billing change from the price charged

under an implied-in-fact contract. 8

        Similarly to the case now before the Court, in Qwest, a party continued to provide

services to another party after the expiration of a services contract. During this period, the

billing party invoiced the other party at the previous contract rate. 9 The Qwest court found that

the parties had formed an implied-in-fact contract because the invoices were being billed and

paid in full. 10 The Qwest court then determined that the billing party could not retroactively

raise its rates without providing any new consideration after the contract negotiations failed. 11

        Although similar, the factual record in Qwest is different from the record before this

Court. In Qwest, the billing party chose the rate to charge after the contract was terminated. 12

Here, Beta Data alleges that it presented Verizon with a number of different billing rates which

changed based on the time period of the contract. This included both the five-year and month-to-

month billing rates. Beta Data further claims that Verizon opted for the five-year rate and agreed

to submit a written contract at a later date. According to Beta Data’s allegations, the parties’



8
  2007 WL 7714219 (E.D. Va. Feb. 5, 2007).
9
  Id.
10
   Id. at *4.
11
   Id.
12
   Id.

                                                 10
expressly entered into an oral contract, rather than forming an implied-in-fact contract based on

the parties’ course of dealing.

          Drawing all reasonable inferences in Beta Data’s favor, the Court cannot determine that

an implied-in-fact contract rather than an express oral contract was created. Further, it is

reasonably conceivable that, after discovery, Beta Data will be able to prove that Verizon entered

in an oral agreement with knowledge that it would be subject to a retroactive rate increase if

Verizon chose to proceed on a month-to-month basis. On this record and at this time, the Court,

drawing all reasonable inferences in favor of Beta Data, cannot find that an implied-in-fact

contract was in fact created. Consequently, the Court cannot yet determine that Beta Data’s

retroactive rate change required additional consideration to be enforceable. Therefore, the Court

does not hold that Verizon is entitled to dismissal based on this argument.

D. FRAUD AND DETRIMENTAL RELIANCE CLAIMS

          During the May 19, 2014 hearing on the Motion, Beta Data discussed potentially raising

a claim of fraud or a claim based on detrimental reliance. However, Beta Data’s current

Complaint fails to raise either claim. Therefore, should Beta Data wish to proceed based on

either of the theories mentioned above, Beta Data must file an amended complaint raising those

claims. Under the current Complaint, Beta Data may only proceed under a breach-of-contract

theory.

                                          CONCLUSION

          Based on the arguments above, drawing all reasonable inferences based on the facts

alleged in Beta Data’s favor, Verizon is not entitled to dismissal of Beta Data’s Complaint.

Therefore, Defendant Verizon Federal, Inc.’s Motion to Dismiss is hereby DENIED. Further, if




                                                 11
Beta Data wishes to proceed on any theory other than breach-of-contract, it must file an amended

complaint raising such a theory.

       IT IS SO ORDERED.

                                            /s/ Eric M. Davis
                                            Eric M. Davis
                                            Judge




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