United States District Court, D. Columbia.
MOBILE, LLC, Plaintiff: David J. Morgan, Richard T. Victoria,
Sanjeev Manoj Jegasothy, PRO HAC VICE, GORDON & REES, LLP,
Pittsburgh, Pa; Julia Kim Whitelock, GORDON & REES, LLP,
GLOBAL CELLULAR, INC., Defendant: John P. Jett, Joshua C.
Hess, Stephen E. Hudson, KILPATRICK TOWNSEND & STOCKTON LLP,
Atlanta, Ga; Peter M. Boyle, KILPATRICK TOWNSEND & STOCKTON
LLP, Washington, DC.
GLOBAL CELLULAR, INC., Counter Claimant: Peter M. Boyle,
KILPATRICK TOWNSEND & STOCKTON LLP, Washington, DC.
MOBILE, LLC, Counter Defendant: Julia Kim Whitelock, GORDON &
REES, LLP, Washington, DC.
G. Sullivan, United States District Judge.
Mobile, LLC, (" 3E" ) commenced this lawsuit in
November 2014 based on Global Cellular, Inc.'s ("
Global" ) alleged breach of the parties' 2013
Manufacturing Agreement (" Agreement" ). Compl.,
ECF No. 1. In January 2015, Global asserted counterclaims
against 3E for breach of contract, breach of implied covenant
of good faith, unjust enrichment, and attorneys' fees.
Answer and Countercl. (" Countercl." ), ECF No. 5.
3E moves to dismiss Global's counterclaims for failure to
state a claim and to strike Global's demand for
attorneys' fees. Pl.'s Mot. Dismiss, ECF No. 11. Upon
consideration of the motion, the response and reply thereto,
the applicable law, and the entire record, 3E's motion is
3E is a
manufacturer of cell phone protective cases. Countercl. at
9-10. Global is a provider of cell phone accessories,
including protective cases. Id. In 2013, 3E and
Global settled an intellectual property lawsuit in which
3E's predecessor Crystal Icing, Inc. ("
Crystal" ) alleged that Global infringed on several
registered copyrights by marketing, manufacturing, copying,
and selling certain items, including cellphone
accessories. Compl. at ¶ 7. The intellectual
property lawsuit settlement resulted in a multi-million
dollar Agreement, the terms and obligations of which give
rise to the parties' current dispute.
to the Agreement, 3E agreed to manufacture certain items at
Global's request, and Global agreed to sell those items
to designated retailers at a specified price. Agreement,
See Compl., Ex. A. The Agreement states that 3E
" shall" provide the products ordered by Global
within a specified amount of time, but that if 3E cannot
provide the Product requested by Global for " any
reason," 3E " may arrange
to have the Product produced by one of Global's current
manufacturers." Agreement at Section 2.C. The Agreement
anticipates Global purchasing at least $3.9 million worth of
product from 3E. Id. at Section 4.A. Under the
Agreement, Global is obligated to make monthly advance
payments of $25,000 per month to 3E for thirty-six (36)
months. Id. at Sections 4.B and 4.C. The advance
payments were to be applied as credit to orders placed by
Global. Id. at Section 4.D. Any unused credit at the
end of the Agreement's term would become " the sole
and exclusive property" of 3E. Id. Section 4.F.
the first six months of the Agreement's term, Global
allegedly made more than 250 manufacturing requests and paid
more than $150,000.00 in monthly advance payments. 3E did not
produce any of the products ordered by Global. Def.'s
Mem. Opp., ECF No. 12 at 1. After Global expressed concern
about 3E's failure to source its orders, 3E executives
advised Global to stop making the monthly payments.
Id.  When Global stopped making payments,
3E filed this lawsuit, alleging breach of contract. Compl. at