EZLinks, LLC v. PCMS Datafit, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
EZLINKS GOLF, LLC,
Plaintiff,
v. C.A. No. N16C-07-080 PRW CCLD
PCMS DATAFIT, INC.
Defendant.
Submitted: December 16, 2016
Decided: March 13, 2017
MEMORANDUM OP[NION AND ORDER
Upon Defendant PCMS Datafz``t, Inc. 's Partial Motion to Dismiss,
GRANTED.
Stuart Brown, Esquire, Laura D. Hatcher, Esquire, DLA Piper LLP (US),
Wilmington, Delaware, Jeffrey S. Torosian, Esquire (pro hac vice) (argued), Eric
Roberts, Esquire (pro hac vice), DLA Piper LLP (US), Chicago, Illinois,
Attorneys for EZLinks Golf, LLC.
William D. Johnston, Esquire, Kathaleen St. J. McCormick, Esquire, Mary F.
Dugan, Esquire, Meryem Y. Dede, Esquire, Young Conaway Stargatt & Taylor,
LLP, Wilmington, Delaware, Krista S. Schwartz, Esquire (pro hac vice), Jones
Day, San Francisco, California, Margaret C. Gleason, Esquire (pro hac vice)
(argued), Jennifer W. FitzGerald, Esquire (pro hac vice), Jones Day, Pittsburgh,
Pennsylvania, Attorneys for PCMS Dataflt, Inc.
WALLACE, J.
I. INTRODUCTION
Plaintiff EZLinks Golf, LLC (“EZLinks”) filed this lawsuit against
Defendant PCMS Dataflt, Inc. (“PCMS”). EZLinks alleges PCMS fraudulently
induced EZLinks into entering a Reseller Agreement and then breached that
Reseller Agreement.
Before the Court is PCMS’s Partial Motion to Dismiss. PCMS asserts that
EZLinks’s fraudulent-inducement claim rehashes its breach-of-contract claim.
PCMS argues that Delaware law prohibits a party from recomposing a
quintessential contract claim as a fraud claim. Because EZLinks’s claims of
fraudulent inducement and breach of contract, though sufficiently distinct, have
identical damages allegations, the Court GRANTS PCMS’s Partial Motion to
Dismiss.
II. FACTUAL AND PROCEDURAL BACKGROUND
ln late 2013, EZLinks, through a third party, solicited a Request for
Proposals (“RFP”) from various companies for a new Point-of-Sale (“POS”)
system.l In mid-January 2014, PCMS responded (the “PCMS Proposal”).
EZLinks thoroughly reviewed the PCMS Proposal, and the parties began a
working relationship2 The parties first made direct contact on February l4, 2014.3
1 Pl.’s Compl. 1111 7-9.
2 Pl.’s Compl. at 11 15.
And a phone conference followed on February 18, 2014.4 EZLinks contends
PCMS representatives stated then that “their point-of-sale solution could handle
‘remote printing.”’5
PCMS provided EZlinks with sales demonstrations of PCMS’s proposed
POS system on March 6 and l3, 2()14.6 On March 18, 2014, several of EZLinks’s
directors had a technical meeting with PCMS to discuss the POS’s speciflcs.7 The
parties had further meetings on April 22, April 30, and May 28, 2014.8
The parties’ CEOs met on August l, 2014. There, PCMS’s CEO made the
following statements: (l) PCMS could complete the project for the POS system to
meet EZLinks’s current customer demands within seven months, with “Phase 0”
completed by November 2014, “Phase l” completed by January 5, 2015, and
“Phase 2” completed by March 2015; and (2) PCMS could complete the project for
the POS System to meet EZLinks’s current customer demands on a budget of $l .4
million.9
3 Pl.’s Compl. at 11 l6.
4 Pl.’s Compl. at 11 l6.
Pl.’s Compl. at 1 l6.
6 Pl.’s Compl. at 11 l7.
7 Pl.’s Compl. at 11 18.
8 Pl.’s Compl. at 11 19.
9 Pl.’s Compl. at 11 21.
EZLinks now contends that PCMS made these statements to fraudulently
induce EZLinks into signing a Reseller Agreement. 10
Based, in part, on the PCMS Proposal, and the parties’ conversations on
February 18, 2014, and August l, 2014, EZLinks awarded its new POS contract to
PCMS. The parties signed a Reseller Agreement on October 9, 2014 (amended
July 30, 2015).ll That Reseller Agreement contemplated that the parties would
enter into various “statements of wor ” (“SOWS”) providing EZLinks updates on
PCMS’s performance12
PCMS allegedly fell behind schedule and ran over budget. In early 2015,
3
EZLinks expressed its frustration with the project’s timing and overruns.l ln
February 2015, PCMS provided a scaled-back beta POS system. lt didn’t worl<.14
In September 2015, PCMS delivered a second beta POS system. lt also was
allegedly defective.15 Then PCMS billed EZLinks $1.8 million for its work;
exceeding the earlier $l .4 million projection16
10 See generally Pl.’s Compl. at 1111 12_13, l6.
ll Pl.’s Compl. at 11 23.
12 Pl.’s Compl. at 11 24.
13 Pl.’s Compl. at 11 28.
14 Pl.’s Compl. at 11 29.
15 Pl.’s Compl. at1130.
16 Pl.’s Compl. at1l3l.
The parties entered into separate SOWs, numbered 2-8, to track PCMS’s
continued work.17 SOWs 2-7 set deadlines for work associated with each. And
under the SOWs’ terms, PCMS had to notify EZLinks by February 29, 2016, if it
would not or could not meet those respective deadlines.18 PCMS neither met the
deadlines nor timely notified EZLinks that it would fail to meet them.19
On May 19, 2016, EZLinks, fed up with the delays, terminated the Reseller
Agreement. EZLinks rejected PCMS’s outstanding invoices, demanded a return of
the nearly $1.6 million it had already paid out, and triggered the parties’ pre-suit
dispute resolution measures.20 Dispute resolution failed.
EZLinks filed this suit on July 12, 2016. EZLinks’s complaint has two
counts: Breach of Contract and Fraudulent lnducement. EZLinks describes the
parties’ relationship in two phases: pre- and post-Reseller Agreement. EZLinks
contends the PCMS Proposal, and PCMS’s February 18 and August 1, 2014
assurances constituted false statements and misrepresentations21 lt says these pre-
contractual statements fraudulently induced EZLinks into signing the Reseller
17 Pl.’s Compl. at 11 32.
Pl.’s Compl. at 11 33
19 Pl.’s Compl. at 11 34.
20 Pl.’s Compl. at 11 38.
21 Pl.’s Compl. at 1111 12-13, 47-53.
Agreement. EZLinks claims further that, post-signing, PCMS breached the
Reseller Agreement by not following the SOWs.
PCMS answered EZLinks’s Complaint and filed this Partial Motion to
Dismiss under this Court’s Civil Rule l2(b)(6). PCMS seeks to dismiss EZLinks’s
fraudulent-inducement claim as a redundant breach-of-contract claim.
At oral argument, the Court requested supplemental briefing on three things:
(1) whether rescission or rescissory damages were requested or applicable;
(2) whether anything in the Reseller Agreement prohibited or limited available
damages; and (3) whether EZLinks could “identify the specific damages requested
under each claim and how they differ in the complaint as it is drafted now.”22
III. PARTIES’ CONTENTIONS
PCMS contends EZLinks’s fraud claim fails for two reasons.23 First, PCMS
argues that the pre-contractual statements’ alleged falsities are premised solely on
PCMS’s later alleged failures to perform under the agreement - it is merely a
reclad breach-of-contract claim. As such, EZLinks fails to allege fraud damages
22 Mot. to Dismiss Hr’g Tr., at 56.
23 Def.’s Opening Br. in Supp. of Mot. to Dismiss at 1 [hereinafter Def.’s Br.]. Because the
Court grants PCMS’s Motion to Dismiss for EZLinks’s failure to separate its damages claims,
the Court need not fully determine if EZLinks adequately pled fraud under Superior Court Civil
Rule 9(b).
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other than those based on expectations in the agreement And so the claims are
indistinguishable24
Second, PCMS argues that EZLinks did not adequately plead fraudulent
inducement, namely justifiable reliance and false representations of material fact.
Even if EZLinks’s allegations are given full credit, PCMS says the allegations do
not meet the pleading standard required for fraudulent inducement
EZLinks counters that its fraudulent inducement claim is distinct.
According to EZLinks, as a part of the negotiation process PCMS agreed to
customize the POS system by adding functions to standard capabilities PCMS
claimed were already in existence. EZLinks argues that PCMS “grossly
misrepresented [the POS system’s] capabilities” and that few of the “standard”
functions were in fact standard.25 EZLinks claims PCMS knew it would have to
build these functions into the system, but did not tell EZLinks. lt also argues that
PCMS misrepresented the budget and time necessary to develop the software and
that PCMS knew this when the misrepresentation was made.26
24 Def.’s Br. at 1.
25 Pl.’s Br. in Opp. to Def.’s Mot. to Dismiss at 1 [hereinafter Pl.’s Opp.].
26 Pl.’s Opp. at 2.
EZLinks argues PCMS’s statements “defrauded [it] to get [it] to sign the
deal, making this a classic fraudulent inducement case.”27 EZLinks says that the
obligations arising under the Reseller Agreement are based on the assumption that
the software functioned as represented by PCMS. Yet, EZLinks posits, PCMS
knew: that the software did not have the required capabilities the time of the
Reseller Agreement; that the required capabilities could not be developed on the
timeline given before the Reseller Agreement was entered into; that PCMS made
the representations to induce EZLinks to enter into the Reseller Agreement; and
that PCMS wrongly profited from that agreement28 lts two claims are distinct,
EZLinks says. And, therefore, it may seek damages via both.
IV. STANDARD OF REVIEW
When considering a motion to dismiss pursuant to Superior Court Civil Rule
12(b)(6), the Court will:
(1) accept all well pleaded factual allegations as true,
(2) accept even vague allegations as “well pleaded”
if they give the opposing party notice of the claim,
(3) draw all reasonable inferences in favor of the
non-moving party, and (4) [not dismiss the claims]
unless the plaintiff would not be entitled to recover
under any reasonably conceivable set of
circumstances29
27 Pl.’s opp. at 2_3.
28 ,
Pl. s Opp. at 10-12.
29 Cent. Mortg. C0. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 535 (Del.
2011) (outlining standard for motions to dismiss).
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But the Court will “ignore conclusory allegations that lack specific supporting
factual allegations.”30
The Court must accept as true all well-pleaded allegations for Rule 12(b)(6)
purposes.31 And every reasonable factual inference will be drawn in the non-
moving party’s favor.32 lf the claimant may recover under that standard of review,
then the Court must deny the motion to dismiss.33 This is because “[d]ismissal is
warranted [only] where the plaintiff has failed to plead facts supporting an element
of the claim, or that under no reasonable interpretation of the facts alleged could
the complaint state a claim for which relief might be granted.”34
Delaware law requires plaintiffs to plead fraud and misrepresentation claims
with particularity_a heightened pleading standard.35 To satisfy Civil Rule 9(b), a
complaint must allege:
(1) the time, place, and contents of the false
representation; (2) the identity of the person making the
representation; and (3) what the person intended to gain
30 Anderson v. Tingle, 2011 WL 3654531, at *2 (Del. Super. Ct. Aug. 15, 2011) (quoting
Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998)).
31 Anderson, 2011 WL 3654531,31*2.
32 Wilmington Sav. Fund Soc ’y, F.S.B. v. Anderson, 2009 WL 597268, at *2 (Del. Super.
Ct. Mar. 9, 2009) (citing Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005)).
33 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
31 Hedenberg v. Raber, 2004 WL 2191164, at *1 (Del. super. Ct. Aug. 20, 2004).
33 super. Ct. Civ. R. 9(b).
by making the representations Essentially, the plaintiff
is required to allege the circumstances of the fraud with
detail sufficient to apprise the defendant of the basis for
the claim.36
V. DISCUSSION
For both a breach-of-contract claim and a tort claim to coexist in a single
action, “the plaintiff must allege that the defendant breached a duty that is
independent of the duties imposed by the contract.”37 PCMS argues that the issue
here is whether the allegedly false statements were independent of the Reseller
Agreement’s terms. Generally, a fraud claim only survives if it is based on some
conduct distinct from that constituting a breach of contract.38 PCMS contends that
all three of EZLinks’s assertions are “inextricably linked to contractual duties and
obligations.”39 And, PCMS posits, all three theories of the alleged falsity are
“based entirely on EZLinks’ expectations regarding - and PCMS’ performance
under - the Reseller Agreement and Statements of Work.”40 So, because the
36 Abry Partners V, L.P. v. F&WAcquisition LLC, 891 A.2d 1032, 1049 (Del. Ch. 2006).
37 Brasby v. Morris, 2007 WL 949485, at *7 (Del. Super. Ct. Mar. 29, 2007) (quoting
McKenna v. Terml``nix Int’l Co., 2006 WL 1229674, at *2 (Del. Super. Ct. Mar. 13, 2006)). ln
Brasby, this Court dismissed certain fraud allegations because the alleged actionable “statements
and assurances relate[d] directly to the performance of the contract and [we]re better addressed
by applicable contract law.” Id.
38 Hiller & Arban, LLC v. Reserves Mgmt., LLC, 2016 WL 3678544, at *4 (Del. Super. Ct.
Ju1y1,2016).
39 Def.’s Br. at 14.
411 Def.’s Br. at 14-15.
fraudulent inducement claim is based solely on PCMS’s alleged failure to deliver
the POS system as EZLinks expected them to, the Court should dismiss the
claim.41
Not so says EZLinks. lt complains it was fraudulently induced to enter into
the Reseller Agreement with PCMS by: (l) statements in PCMS’s RFP
Response;42 (2) PCMS’s alleged statement on February 18, 2014 about remote
printing;43 and (3) PCMS’s alleged statement on August 1, 2014 about the project’s
timing and cost of the project44
A. PCMS’s STATEMENTS IN THE RFP REsPoNsES
PCMS first contends that Complaint Paragraphs ll-13 merely allege that
the software actually delivered under the contract did not meet EZLinks’s
expectations, not fraudulent inducement to enter the contract To maintain its
contention, PCMS cites to various paragraphs of the Complaint45 PCMS alleges
that all of the allegations in Complaint Paragraphs 12 and 13 simply criticize the
41 Pl.’s Compl. at 1111 27, 36~38, 44, 48_50.
43 Pl.’s Compl. at 1111 11-13.
43 Pl.’s Compl. at 11 l6.
44 Pl.’s Compl. at 1111 22, 37.
45 F or example, “PCMS staff ultimately were unable to define the user roles requested by
EZLinks, even after the investment of substantial time and cost,” and “PCMS committed to
providing ‘API access to system data for manipulation by other 3d party solutions,’ yet charged
EZLinks an additional, unquoted amount when EZLinks requested APl access upon receiving
the preliminary, defective product.” Pl.’s Compl. at 11 l2(d), (m).
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product actually delivered; they say nothing of what was stated in the RFP
Response.46
PCMS correctly notes that “Delaware courts will not permit a plaintiff to
‘bootstrap’ a breach of contract claim into a tort claim merely by intoning prima
facie elements of the tort while telling the story of the defendant’s failure to
perform under the contract.”47 As Paragraphs 12 and 13 describe only the ways the
delivered software failed to meet EZLinks’s expectations, they merely “tell[] the
story of the defendant’s failure to perform under the contract.”48 Those specific
issues EZLinks has with the product are, of course, “better addressed by applicable
contract law.”49
B. PCMS’s FEBRUARY 18, 2014 AssURANCEs
EZLinks alleges that during a phone call on February 18, 2014, PCMS
“stated that their point-of-sale solution could handle ‘remote printing’ . . . which
they knew to be false.”50 PCMS argues that EZLinks was told that “any written or
oral communication” was not “a contractually binding promise or
46 Def.’s Br. at l6.
‘11 Comell Glasgow, LLC v. La orange Pmps. LLC, 2012 wL 2106945, at *8 (Del. super.
Ct. June 6, 2012).
48 id
43 Bmsby, 2007 WL 949485, at *8.
50 Pl.’s Compl. at ‘|l l6.
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representation.”51 Again, PCMS states, EZLinks’s issue with the lack of a remote
printing feature was due to the delivered software failing to function as EZLinks
believed it would, not fraudulent inducement of the contract52
C. PCMS’s AUGUsT 1, 2014 PRoMIsEs
EZLinks claims that on August l, 2014, PCMS estimated it could complete
the project in three phases “on a budget of $1.4 million.”53 EZLinks says that
PCMS made that representation when “PCMS in fact knew that the total timing
and cost of the project would far exceed what PCMS had decided to tell
EZLinks.”5 4 According to EZLinks, the PCMS Proposal, and the February 18 and
August l statements were “specific, knowingly false statements on which [PCMS]
intended 1EZLinks] to rely.”55
PCMS argues that EZLinks uses this allegation to support both the breach-
of-contract and fraud claims.56 But, suggests PCMS, the cost and scheduling were
51 Transmittal Aff. of Meyem Y Dede in Supp. of Def.’s Br. Ex. C. at 3, 11 1 (“The
responses in this document are provided as guidance . . . . Notwithstanding any statement to the
contrary . . . this document . . . does not constitute any offer capable of acceptance or a contract
or binding agreement between the parties or a contractually binding promise or representation.”).
52 Def.’s Br. at 17_18.
53 Pl.’s Compl. at 1111 22, 37.
54 Pl.’s Compl. at 11 37.
55 s
Pl. s Opp. at 14
56 Pl.’s Compl. at 11 36 (“By April 2016, PCMS was nowhere near being able to deliver the
POS System contemplated by the Reseller Agreement. To do so would require at least three
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terms of the parties’ final written agreement to be fulfilled, not inducements
leading to creation of that written agreement57 As such, this fraud allegation
describes no duty owed to EZLinks independent of the contract; and thus, says
PCMS, it cannot serve as the basis for a separate fraud claim.58
D. BREACH-OF-CONTRACT VS. FRAUD CLAIMS
Both EZLinks and PCMS agree that an alleged misrepresentation’s timing is
key to distinguishing fraudulent inducement from breach of contract5 9 That is, the
question of whether or not a fraudulent-inducement claim stands is whether the
alleged conduct “go[es] directly to the inducement of the contract, rather than its
performance.”60
Courts often focus on when the fraudulent conduct is alleged to have
occurred. 61 “Allegations related to the inducement to contract have been
recognized as ‘separate and distinct’ conduct, while those focused on inducement
more years and $6 million of additional work, both of which vastly exceeded the time and budget
representations made by PCMS in the 8/1/14 Meeting.”); ia’. at 1111 27, 31 (“PCMS Fails to
Timely Deliver a POS System and Greatly Exceeds Budget Estimate.”).
31 Def.’s Br. at 19_20.
58 Def.’s Br. at 20.
59 Pl.’s Opp. at 14; Def.’s Br. at 14, n. 9.
611 Brasby, 2007 WL 949485, at *7.
61 Hilzer & Arban, LLC, 2016 WL 3678544, at *4; Comell Glasgow, LLC, 2012 WL
2106945,a1*8.
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1362
of continued performance are generally impermissible And under Delaware
law, a plaintiff “cannot ‘bootstrap’ a claim of breach of contract into a claim of
fraud merely by alleging that a contracting party never intended to perform its
obligations.”63 Nor can a plaintiff devise a claim for fraud “simply by adding the
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term ‘fraudulently induced’ to a complaint To the contrary, casting an alleged
failure to comply with a contract as a failure to disclose an intention to take certain
actions arguably inconsistent with that contract is “exactly the type of
bootstrapping [Delaware c]ourt[s] will not entertain.”65
ln its best light, EZLinks’s fraudulent-inducement claim is read to allege
that PCMS intentionally and knowingly: (1) made numerous false pre-contract
representations of its then-extant product; (2) engaged in a pre-contract
concealment of its inability to create EZLinks’s proposed product; (3) greatly
undersold project times and costs; and (4) did all of this to induce EZLinks into
63 Hiller & Arban, LLC, 2016 WL 3678544, at *4 (citing Comell Glasgow, LLC, 2012 WL
2106945, at *8)).
63 Narmws¢ep, lnc. v. Onszream Media Corp., 2010 wL 5422405,61 * 15 (Del. Ch. Dec. 22,
2010) (citing lotex Commanications, Inc. v. Defrl``es, 1998 WL 914265, at *4 (Del. Ch. Dec. 21,
1998)).
64 Narrowstep, lnc., 2010 WL 5422405, at *15 (quoting Iotex Communications, lnc., 1998
WL 914265, at *5 (“[A breach-of-contract claim] cannot be ‘bootstrapped’ into a fraud claim
merely by adding the words ‘fraudulently induced’ or alleging that the contracting parties never
intended to perform.”).
63 BAE sys. N. Am. lnc. v. Lockheed Mar¢in Corp., 2004 WL 1739522, at *8 (Del. Ch. Aug.
3, 2004).
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entering the Reseller Agreement. 66 EZLinks has met the heightened pleading
standard imposed by Rule 9(b) to address the time, place, and contents elements of
fraud claims. So too, under the specific circumstances presented here, it has
pleaded enough to distinguish its fraudulent-inducement from its breach-of-
contract claim.67 But that is not all that might doom EZLinks’s fraud claim.
E. IDENTICAL DAMAGES CANNoT SUSTAIN EZLINKs’s SEPARATE CoUNTs
Even if one were to assume here that EZLinks’s two claims are distinct, it
still must plead separate damages. Failure to plead separate damages is an
l. 66 Here EZLinks’s damages claims and
independent ground for dismissa
calculations for the alleged fraudulent inducement and breach of contract appear
materially identical. And EZLinks’s mere addition of punitive damages to its
fraudulent inducement charge is not enough to distinguish it from the contract
66 Pl.’S Compl. at 1111 22, 37.
67 ITW Glol)al Invs. Inc. v. Am. Ina'us. Pariners Cap. Funa' IV, L.P., 2015 WL 3970908, at
*6 (Del. Super. Ct. June 24, 2015) (“Allegations that are focused on inducement to contract are
‘separate and distinct’ conduct.”) (emphasis in original). See also Narrowstep, Inc., 2010 WL
5422405, at *15 (denying dismissal based on defendant’s bootstrapping argument while
observing: “[Defendant] repeatedly lied to [Plaintiff] at multiple steps in the lntegration process
in order to strip [Plaintiff] of its valuable assets with no intention of closing the merger. This
conduct, if true, goes beyond a mere intention not to comply with the terms of the Agreement. . .
The Agreement is not the source of 1Plaintiff’s] fraud claim, but rather the instrument by
which [Defendant] perpetrated its broader scheme to loot [Plaintiff].”).
63 Cdmeil Gldsgow, LLC, 2012 WL 2106945, at *9 (“[Plaimifi] has failed 16 plead fraud
damages separate and apart from its breach damages The fraud claim, therefore, must be
dismissed for this reason as well.”). See also ITW Global Invs. Inc., 2015 WL 3970908, at *5.
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damages.69 Because EZLinks “fail[ed] to separate the damages incurred by any
fraudulent conduct from those incurred by any breach of contract,” the claim for
the former should be dismissed70
To counter, EZLinks argues that ITW Global Investments controls this issue.
ln ITW, the Court noted that rescission and rescissory damages for money paid to
defendants under the contract are not “barred as a ‘rehash’ of the Complaint’s
breach of contract damages.”71 ln EZLinks’s complaint, however, it alleges only
damages “in an amount to be proved at trial, including punitive damages,
attorney’s fees, and costs” regarding the fraudulent-inducement claim,72 and “pre-
69 See, e.g., Hiller & Arban, LLC, 2016 WL 3678544, at *4-5. See also AFH Hlding.
Aa'visory, LLC v. Emmaus Life Scis., Inc., 2013 WL 2149993, at *12-13 (Del. Super. Ct. May 15,
2013) (granting partial summary judgment on fraud and fraud-in-the-inducement claims while
noting that “[t]he only claims for relief unique to the fraud claims are for punitive damages . . . .
The Court finds that Emmaus’s breach of contract claims and fraud claims are based on the same
operative facts. Additionally, Emmaus has not demonstrated a prima facie basis for damages for
fraud or fraud in the inducement, separate and apart from any compensatory damages or
declaratory relief to which Emmaus may be entitled for breach of contract . . . .”).
111 Khushdim v. Tullow, lnc., 2016 WL 3594752, at *6-7 (Del. super. Ct. June 27, 2016)
(dismissing claim for fraud where plaintiff “merely pled identical damages”); ITW Global Invs.,
Inc., 2015 WL 3970908, at *5 (dismissing claim for fraud where plaintiff pleaded materially
identical damages); Cornell Glasgow, LLC, 2012 WL 2106945, at *8 (dismissing fraud claims
where breach-of-contract claim alleged identical damages); 4C, Inc. v. Poals, 2014 WL 1047032,
at *7 (D. Del. Mar. 5, 2014) (“A plaintiff alleging both fraudulent misrepresentation and breach
of contract must prove that the damages pled under each cause of action are distinct.”);
Greenstar, LLC v. Heller, 934 F. Supp. 2d 672, 697 (D. Del. 2013) (claim for fraud failed because
plaintiff failed to demonstrate damages caused by the fraud “separate and apart from” the alleged
breach of contract damages).
11 1TWGlobd11nvs., lnc., 2015 WL 3970908,a1*7,n. 103.
11 Pl.’s Compl.at11 53.
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and post- judgment interest on its claim, in addition to the attorney’s fees and costs
expended for this lawsuit” regarding the breach-of-contract claim,73 Notably,
EZLinks’s count for fraud in the inducement pleads neither for rescission nor
rescissory damages as did the ITW complaint74 Thus, reliance on ITW Global
Invest)nents on this basis is unavailing.
“Delaware courts have consistently held that to successfully plead a fraud
claim, the allegedly defrauded plaintiff must have sustained damages as a result of
a defendant’s action.”75 And those fraud damages allegations can’t simply
“rehash” the damages that were allegedly caused by the claimed breach of
contract.76
EZLinks contends that its damages claims, at this stage, are distinct
EZLinks cites JCM Innovation Corp. v. FL Acquisition Holclings, Inc.77 ln JCM,
plaintiffs alleged defendants defrauded them into signing a purchase agreement
Plaintiffs pled a litany of claims, including fraud and breach of contract And it
75 Pl.’s Compl. at 11 46.
74 Compare ia'., with ITW Global Invest., Inc., 2015 WL 3970908, at *5, *7, n. 103.
75 Cornell Glasgow, LLC, 2012 WL 2106945, at *8 (quoting Dalion v. Fora1 Motor Co.,
2002 WL 338081, at *6 (Del. Super. Ct. Feb. 28, 2002)).
76 Cornell Glasgow, LLC, 2012 WL 2106945, at "‘8 (citing Albert v. Alex Brown Mgt. Serv.,
Inc., 2005 WL 2130607, at *7 (Del. Ch. Aug. 26, 2005)).
77 JCM Innovation Corp. v. FL Acquisition Hla’gs., Inc., 2016 WL 5793192 (Del. Super. Ct.
Sept. 30, 2016).
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appears that the JCM plaintiffs alleged identical damages calculations for both
types.78
But JCM hardly stands for the proposition that identical damages claims in
breach-of-contract and fraudulent-inducement counts are permissible and allow
both counts to coexist in one action. ln JCM, the parties’ agreement’s
indemnification provisions prohibited all of JCM’s contract claims. By operation
of those express contractual provisions, only JCM’s fraud and unjust enrichment
claims remained.79 Not so here.
VI. CONCLUSION
EZLinks has failed to establish - even after oral argument and supplemental
briefing - how its alleged fraudulent inducement and breach of contract damages
are distinct EZLinks has merely pleaded identical damages. Fraud-induced
damages cannot mirror breach-of-contract damages. 66 And so, both the
76 See JCMInnovation Corp., 2016 WL 5793192, at *9.
79 JCM Innovation Corp., 2016 WL 5793192, at *7 (“The Exclusive Remedy Provision,
however, bars JCM’s contractual claims.”); ia'. (noting unjust enrichment claim would survive
because it “is a quasi-contractual claim . . . a claim that proceeds under the theory that no
contract exists.”); id. at *9 (“JCM alleges Defendants repeatedly misled it throughout the
negotiation and signing lf true, then the Agreement is the ‘instrument by which Defendants
perpetrated its broader scheme’ to defraud JCM. At this juncture, JCM’s fraud claim is different
from its breach of contract claim.”) (citing Narrowstep, Inc. , 2010 WL 5422405, at *15).
66 See ITW Global Invs. Inc., 2015 WL 3970908, at *5 (dismissing plaintiffs fraud claim
“[b]ecause ITW has pleaded materially identical damages for $85 million, they fail to separate
the damages incurred by any alleged fraudulent misrepresentation and any alleged breach of
contract under the SPSA”). See also Khushaim, 2016 WL 3594752, at *6 (dismissing a fraud
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fraudulent-inducement and breach-of-contract counts cannot survive. PCMS’s
Partial Motion to Dismiss is GRANTED. Count ll (Fraudulent lnducement) of
EZLinks’s Complaint is DISMISSED.
IT IS SO ORDERED. W
Paul R. Wallace, Judge
claim where the plaintiff’s alleged fraud damages were “a copy-and-paste recitation of [the]
contract damages.”).
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