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Capitalkeys, LLC v. Ciber

July 13, 2012


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff CapitalKeys, LLC ("CK") brings this action for breach of contract against defendant CIBER, Inc. ("CIBER"). CK claims that CIBER materially breached its contract with CK when it failed to pay $525,000 due under the contract between the two parties. Am. Compl. ¶ 1. Alternatively, CK claims that CIBER owes restitution for unjust enrichment because it failed to pay for services rendered by CK. Am Compl. ¶¶ 68-80. Now before the Court is [9] defendant's motion for partial summary judgment on the portions of CK's breach of contract claim (Claim I) relating to a contingency fee and CK's unjust enrichment claim (Claim II). For the reasons described below, the Court will grant defendant's motion.

I. Background

In early 2010, CIBER was one of two firms competing for a multi-million dollar contract to provide software products and services to the District of Columbia government. Am. Compl. ¶¶ 13-18. On March 1, 2010, CIBER's management retained CK to perform work on its behalf to help procure the contract with the District. Am. Compl. ¶ 20. The contract between the parties specified that CK would "[g]ain intelligence as to [CIBER's] current procurement status with the District of Columbia's Government," "educate select decision makers within certain departments . . . as to why [CIBER] is the right choice [to win the contract]," and "[i]nform [CIBER] designated contacts of any corrective actions needed to better gain the scores / votes needed to gain this work and of their standing in the process." Compl. Ex. 1 ¶ 1.

The contract between CIBER and CK specified that CIBER would pay CK a fixed fee of $5,000 per month every thirty days for a six-month period, with a six-month automatic renewal after the initial six-month period had elapsed. The contract also contained the following clause:

5. Financial and Other Transactions. When CK's introductions assist Client in arranging financial funding or other similar transactions, or any mergers or acquisitions, or sales of products, services, or loans, for Client or related companies or management, these efforts will require CK to undertake additional work, in its discretion, e.g. due diligence, and so additional fees will automatically be due and payable in line with the size of the transaction but only payable from the actual closing meaning if you don't proceed and consummate the deal(s), we will not be paid. These additional fees will only come from deal payments and also from, and upon, any payments resulting from the transaction, at any time during this contract and within 1 year after any termination, with the payments to us to be as we may mutually agree in writing but if we don't for any reason then we will be paid at least 5% of the total deal proceeds including any stock and other benefits from transactions (so that CK will receive at least 5% of the total deal proceeds from Client simultaneously with Client funding or receipt). CK will also be kept advised and involved in communications and meetings with CK sources. If, on the other hand, the source is not directly or indirectly supplied by CK, but you involve us to assist you in closing or obtaining the deal, as in the case you use finance materials or plans resulting from our advice, have us on a key conference call with the source and or otherwise materially use our services or relationship to help, then we will be paid and have the same rights as if it was our source except the minimum percentage will be 3% not 5%. This obligation to us will be during our relationship and for 1 year following any termination.

Id. ¶ 5.

CK's president, who had never worked with CIBER before but according to CK "has significant experience in the field of information technology," was the only employee of CK who worked on the deal between CIBER and the D.C. government. Pl.'s Opp'n Memo. ("Pl.'s Opp'n") [Docket Entry 14] at 5. CK's president researched competing proposals, spoke over the phone with several D.C. government officials, and provided intelligence to CIBER as to how to improve its bid. Pl.'s Opp'n at 6. CK also contends that it provided unspecified other services to CIBER. Id.

CIBER won the contract with the D.C. government, which CK claims is worth $17,000,000. Am. Compl. ¶ 36. On November 30, 2010, CIBER sent CK an email terminating the contractual relationship. Compl. Ex. C. At that time, CIBER had made monthly payments pursuant to the contract from March through November of $45,000, and CIBER owed payment for the three months remaining in the contract period. Def.'s Mot. for Partial Summ. J. ("Def.'s Mot.") [Docket Entry 9] Ex. 2 at 116. CK sent CIBER an invoice waiving the $15,000 fee for the remaining three months of the contract, but requesting payment of $323,785.32 -- three percent of the price of CIBER's contract with D.C. -- pursuant to paragraph five of the contract.*fn1

Compl. Ex. D. When CIBER did not pay the invoice, CK sued in this Court for breach of contract to regain the three percent payment and the remaining $15,000 payment, or, in the alternative, for restitution for unjust enrichment of the difference between the $5,000 per month CIBER paid and the $30,000 per month CK claims it normally charges clients. Am. Compl. ¶¶ 53-64, 73-78; Pl.'s. Opp'n at 20-21. CIBER moved for partial summary judgment, claiming that the unjust enrichment claim as well as the portions of the breach of contract claim relating to a contingency fee fail as a matter of law.

II. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate "if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party may successfully support its motion by identifying those portions of "the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see Celotex, 477 U.S. at 323.

In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. A party asserting that a fact is genuinely disputed must support the assertion by citing to particular parts of materials in the record. Fed. R. Civ. P. 56(c)(1)(A). If a party fails to support a factual dispute with evidence in the record, "the court may . . . consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. Moreover, "if the evidence is merely ...

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