V-ME Media, Inc. v. Faith7, Inc. d/b/a ChimeTV, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
V-ME MEDIA, INC., )
)
Plaintiff, )
) C.A. No.: N24C-05-247 FWW
v. )
)
FAITH7, INC. d/b/a/ CHIMETV, INC., )
)
Defendant. )
Submitted: September 11, 2024
Decided: October 18, 2024
Upon the Motion to Dismiss of Defendant Faith7, Inc. d/b/a ChimeTV, Inc.
GRANTED in part and DENIED in part.
MEMORANDUM OPINION
David Holloway, Esquire, HOLLOWAY LAW LLC, 1504 N. Broom Street, Suite
1, Wilmington, DE 19806, Attorney for Plaintiff.
R. Karl Hill, Esquire, SEITZ, VAN OGTROP & GREEN, P.A., 222 Delaware
Avenue, Suite 1500, Wilmington, DE, 19801, Attorney for Defendant Faith7, Inc.
d/b/a ChimeTV, Inc.
WHARTON, J.
I. INTRODUCTION
V-ME Media, Inc. (“V-ME”) brings this action against Faith7, Inc. d/b/a
ChimeTV (“ChimeTV”) alleging single counts of Fraudulent Inducement (Count I),
Breach of Contract (Count II), and Unjust Enrichment (Count III).1 V-ME and
ChimeTV are media companies that entered into a contract on either October 3, 2022
or October 4, 2022.2 The contract required ChimeTV to pay V-ME $700,000 per
year for two years, payable in installments in exchange for which V-ME was
required to provide oversight, management, and the logistics of trafficking media to
ChimeTV’s network.3 V-ME alleges the ChimeTV fraudulently induced it to enter
into the contract by knowingly and falsely representing that it had sufficient
operating funds for two to three years while VE-M procured media for its network.
Then, after the contract was executed, ChimeTV, having insufficient operating
funds, defaulted on its installment payments, breaching the contract and unjustly
enriching itself.
ChimeTV moves to dismiss each count. It contends: (1) the fraudulent
inducement count improperly merely replicates the breach of contract count and
alleges fraud with insufficient particularity; (2) V-ME improperly bypassed
1
Compl., D.I. 1.
2
Id. at ⁋ 2, 10. Paragraph 2 alleges the parties entered into the contract on October
3 . Paragraph 10 alleges it was October 4th. The difference is immaterial.
rd
3
Id. at ⁋⁋ 11-12.
2
contractually mandated pre-litigation notice and opportunity to cure requirements
before suing for breach of contract; and (3) the unjust enrichment claim cannot exist
in the presence of a formal contract.
For the reasons set out below the Court dismisses Count I – Fraudulent
Inducement, but declines to dismiss Count II – Breach of Contract and Count III –
Unjust Enrichment.
II. FACTS AND PROCEDURAL BACKGROUND
The Complaint alleges that the parties entered into a contract on October 3 or
4, 2002.4 The Fraudulent Inducement count alleges that prior to entering into the
contract, ChimeTV, through both its President and CEO knowingly and falsely
assured V-ME’s CFO that its shareholders had invested around $4 million and it
would be able to cover operating expenses in order to induce V-ME to enter into the
contract.5 V-ME reasonably relied on these representations when it entered into the
contract.6 After the contract was signed ChimeTV defaulted on its installment
payment obligations and the true state of its financing was exposed.7 V-ME was
injured as a result.8 The Breach of Contract claim alleges that V-ME provided the
services required by the contract, but ChimeTV failed to meet its payment
4
Id. at ⁋ 10.
5
Id. at ⁋⁋ 14-19; 28-30.
6
Id. at ⁋ 35
7
Id. at ⁋⁋ 19-25.
8
Id. at ⁋⁋ 35-36.
3
obligations, resulting in damages to V-ME.9 Finally, the Unjust Enrichment count
alleges that ChimeTV was enriched and V-ME was impoverished when V-ME was
not compensated for the services it provided.10
ChimeTV moved to dismiss on August 7, 2024.11 V-ME responded12 and
ChimeTV replied.13 The motion is ripe for resolution.
III. THE PARTIES’ CONTENTIONS
ChimeTV moves to dismiss each count. It seeks dismissal of the Fraudulent
Inducement count because, it argues, the claim of fraud is not alleged with the degree
of particularity required by Superior Court Civil Rule 9(b) and because it improperly
bootstraps a claim of breach of contract into a claim of fraud simply by alleging
ChimeTV never intended to meet its payment obligations under the contract.14
Turning to the Breach of Contract claim, ChimeTV faults V-ME for representing
that the contract was attached to the Complaint, but failed to do so.15 According to
ChimeTV, the contract requires V-ME, prior to pursuing any legal or equitable
remedies, to give ChimeTV “written notice that describes any purported default and
the steps to cure after which Defendant shall have thirty (30) days from such notice
9
Id. at ⁋⁋ 40-43.
10
Id. at ⁋⁋ 45-49.
11
Def’s. Mot. to Dismiss, D.I. 12.
12
Pl.’s Resp., D.I. 14.
13
Def.’s Reply, D.I. 17.
14
Def.’s Mot. to Dismiss, at ⁋⁋ 4-5, D.I. 12.
15
Id. at ⁋ 6.
4
to cure the default.16 ChimeTV contends that V-ME did not comply with that
provision.17 Finally, ChimeTV argues that the Unjust Enrichment count should be
dismissed because unjust enrichment claims are only available in the absence of a
formal contract.18
In response to ChimeTV’s argument that the Fraudulent Inducement claim
lacks sufficient particularity, V-ME cites Paragraph 13 of the Complaint specifying
the time frame in which the allegedly false statement occurred, Paragraph 14
identifying the specific individuals who made the statements, Paragraph 15 detailing
the amount of money ChimeTV claimed it had to cover operating expenses, and
Paragraph 20 detailing ChimeTV’s admission that it did not have the funds it
previously claimed to have.19 Next, V-ME addresses ChimeTV’s request to dismiss
the Breach of Contract claim. It argues that “all conditions precedent to the bringing
of this lawsuit have occurred,” citing Paragraph 8 of the Complaint, which,
according to it, at least implicitly establishes that the condition precedent of
providing notice of its default to ChimeTV before bringing suit has been met. 20 V-
ME also cites Paragraph 20, indicating ChimeTV was on notice of the breach,
Paragraph 21 describing email communications about the breach, and Paragraph 23
16
Id. at ⁋7.
17
Id.
18
Id. at ⁋ 8.
19
Pl.’s Resp., at ⁋ 8, D.I. 14.
20
Id. at ⁋ 14.
5
further detailing email communications regarding ChimeTV’s continuing failure to
make payments.21 Finally, V-ME acknowledges that it cannot recover on both a
breach of contract theory and unjust enrichment theory, but argues at this stage of
the case pleading in the alternative is permissible.22
In reply, ChimeTV emphasizes it’s argument that the Fraudulent Inducement
claim bootstraps V-ME’s Breach of Contract claim, an argument V-ME does not
address in its response.23 ChimeTV also disputes that Paragraphs 13 and 15 contain
the specificity required to properly allege fraud.24 Regarding the Breach of Contract
claim, ChimeTV contends that the paragraphs cited by V-ME as addressing the
contractual notice of breach and opportunity to cure requirements of the contract do
not address those requirements adequately.25 Finally, ChimeTV contends that V-
ME’s argument that the Unjust Enrichment claim is properly pled as an alternative
theory of liability fails because V-ME does not challenge the validity of the formal
contract.26
IV. STANDARD OF REVIEW
21
Id. at ⁋ 15.
22
Id. at ⁋⁋ 17-21.
23
Def.’s Reply, at ⁋⁋ 1-2, D.I. 17.
24
Id. at ⁋⁋ 3-6
25
Id. at ⁋⁋ 8-12.
26
Id. at ⁋⁋ 13-16.
6
The Court applies the standard of review applicable to motions to dismiss
under Superior Court Civil Rule 12(b)(6). A motion to dismiss for failure to state a
claim pursuant to Superior Court Rule 12(b)(6) will not be granted if the “plaintiff
may recover under any reasonably conceivable set of circumstances susceptible of
proof under the complaint.”27 The Court's review is limited to the well-pled
allegations in the complaint.28 In ruling on a 12(b)(6) motion, the Court “must draw
all reasonable factual inferences in favor of the party opposing the motion.”29
Dismissal is warranted “only if it appears with reasonable certainty that the plaintiff
could not prove any set of facts that would entitle him to relief.”30
Superior Court Civil Rule 9(b) requires that “[i]n all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be stated with
particularity.”31 The particularity pleading standard requires a party to plead “the
time, place and contents of the false representations.”32 However, “[m]alice, intent,
knowledge, and other condition of mind of a person may be averred generally.”33
The requirement that fraud be pleaded with particularity “serves to discourage the
27
Browne v. Robb, 583 A.2d 949, 950 (Del. 1990).
28
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
29
Id.30
Id.31
Super. Ct. Civ. R. 9(b).
32
ITW Glob. Investments Inc. v. Am. Indus. Partners Capital Fund IV, L.P., 2015
WL 3970908, at *5 (Del. Super. Ct. June 24, 2015).
33
Super. Ct. Civ. R. 9(b).
7
initiation of suits brought solely for their nuisance value, and safeguards potential
defendants from frivolous accusations of moral turpitude.”34
V. DISCUSSION
A. Count I - Fraudulent Inducement
1. Fraud is alleged sufficiently.
The Court turns first to Count I - Fraudulent Inducement. In order to survive
a motion to dismiss a fraud claim, the party asserting fraud must allege that: (1) the
accused party falsely represented a material fact or omitted facts that they had a duty
to disclose; (2) the accused party knew that the representation was false or made
with a reckless indifference to the truth; (3) the accused party intended to induce the
party asserting the fraud action to act or refrain from action; (4) the party asserting
the fraud acted in justifiable reliance on the representation; and (5) the party asserting
the fraud was injured by its reliance on the accused party’s representation.35
V-ME alleges all of the elements of fraud in its Complaint. ChimeTV only
half-heartedly argues otherwise, merely stating that V-ME’s allegations of fraud “do
not amount to a colorable claim for common law fraud.”36 The Court finds that the
Complaint alleges all of the necessary elements of fraud. It alleges that: (1)
34
Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624 A.2d
1199, 1208 (Del.1993).
35
ITW Glob. Investments Inc., 2015 WL 3970908, at *5.
36
Def.’s Mot. to Dismiss, at ⁋ 10, D.I. 12.
8
ChimeTV falsely represented that it had sufficient funds on hand to cover operating
expenses for two to three years;37 (2) ChimeTV knew the representation was false;38
(3) ChimeTV intended to induce V-ME to enter into the contract;39 (4) V-ME acted
in justifiable reliance on the representation;40 and (5) V-ME was injured by its
reliance on the representation.41
ChimeTV does contend more forcefully, however, that V-ME’s allegations
of fraud do not meet Rule 9(b)’s particularity requirements. The Court finds V-ME
has met those requirements as well. The Complaint alleges the time the
representations were made – in negotiations between the parties “prior to” and
“leading up to” October 4, 2022.42 While the Complaint does not specifically
identify the “place” where the representations were made, identifying the physical
situs where representations are made loses its force as a prophylaxis against fraud
where people regularly communicate via telephone and email from anywhere in the
world. In fact the physical location of counterparties to a communication may not
be knowable. V-ME identifies the parties to the communications with particularity.
It alleges ChimeTV’s President and its CEO made the representations to V-ME’s
37
Compl., at ⁋⁋ 15, 17, 29, D.I. 1.
38
Id. at ⁋⁋ 18, 33.
39
Id. at ⁋⁋ 19, 30.
40
Id. at ⁋⁋ 34.
41
Id. at ⁋⁋ 26, 27, 35, 36.
42
Id. at ⁋⁋ 13, 29.
9
CFO, all of whom are identified by name.43 The contents of the allegedly fraudulent
representations also are alleged with sufficient particularity. V-ME alleges that its
CFO explained to ChimeTV’s President at its CEO that “the television business is
difficult, complex, and undergoing systemic challenges” and that ChimeTV “would
have to have funds on-hand to cover at least two to three years of operating expenses
of the television channel that Plaintiff was to service under the Contract.”44 Both
ChimeTV’s President and its CEO assured V-ME’s CFO that “the Defendant’s
shareholders had invested around $4 million dollars, and would therefore be able to
cover the operating expenses.”45 It is this particular representation, made by these
particular individuals during contract negotiations leading up to October 4, 2022 that
are alleged to be fraudulent. Accordingly, the Court concludes that V-ME has met
the particularity requirement of Rule 9(b).
2. The Fraudulent Inducement and Breach of Contract Claims are
Distinguishable.
ChimeTV also challenges the Fraudulent Inducement claim on the basis that
it is really a “bootstrapped breach of contract claim.”46 V-ME does not address this
argument in its response, prompting ChimeTV to ask the Court to consider the point
43
Id. at ⁋⁋ 14, 15.
44
Id. at ⁋ 14.
45
Id. at ⁋ 15.
46
Def.’s Mot. to Dismiss, at ⁋ 11, D.I. 12.
10
conceded.47 The Court declines that invitation, preferring what it considers the better
practice of assessing the merits of ChimeTV’s argument. It is clear that a plaintiff
may not merely reprise a breach of contract claim, allege fraud, and create a
fraudulent inducement claim – “[U]nder Delaware law, a plaintiff ‘cannot
“bootstrap” a claim of fraud merely by alleging that a contracting party never
intended to perform its obligations.’ Nor can a plaintiff devise a claim for fraud
‘simply by adding the term “fraudulently induced” to a complaint.’”48 It is also clear
that “fraud damages allegations can’t simply ‘rehash’ the damages that were
allegedly caused by the claimed breach of contract.”49 But, it is true, of course, that
a fraudulent inducement claim may coexist in the same complaint with a breach of
contract claim. “Delaware courts routinely recognize an exception to this ‘bootstrap’
rule where a plaintiff pleads ‘that the Seller knew that the Company’s contractual
representations and warranties were false’ when made.”50
The timing of the alleged misrepresentation is crucial in distinguishing
between fraudulent inducement and breach of contract.51 The question is whether
47
Def.’s Reply, at ⁋ 1, D.I. 17.
48
EZLinks Golf, LLC v. PCMS Datafit, Inc. 2017 WL 1312209, *5 (Del. Super. Ct.
Mar. 13, 2017) (quoting Narrowstep, Inc. v. Onstream Media Corp, 2010 WL
5422405, at *15 (Del. Ch. Dec. 22, 2010)).
49
Id. at *7
50
Anschutz Corp. v. Brown Robin Cap., LLC, 2020 WL 3096744, at *15 (Del. Ch.
June 11, 2020).
51
EZLinks Golf, LLC 2017 WL 1312209, at *5.
11
the conduct “‘go[es] directly to the inducement of the contract, rather than its
performance.’”52 Taking the fraudulent inducement allegations in the light most
favorable to V-ME, prior to the parties entering into the contract, V-ME told
ChimeTV that it would not provide services to it if it did not have adequate operating
funds.53 Knowing that, and knowing that it had inadequate operating funds,
ChimeTV, nonetheless intentionally and falsely represented to V-ME that it did have
adequate funds.54 Accordingly, the Court finds that V-ME has pleaded enough
alleged pre-contract misconduct to distinguish the fraudulent inducement claim from
the breach of contract claim.
3. The Fraudulent Inducement Claim Does Not Plead Separate
Damages.
The final question on the propriety of the fraudulent inducement claim is
whether it alleges separate damages from the breach of contract claim. Failure to
plead separate damages is an independent ground for dismissal.55 For the fraudulent
inducement claim, the Complaint alleges V-ME is entitled to damages: (1) “as it
began spending its resources on performing under the contract without being
52
Id. (quoting Brasby v. Morris, 2007 WL 949485, at *7 (Del. Super. Ct. Mar. 29,
2007)).
53
Compl., at ⁋⁋ 14, 30, D.I. 1.
54
Id. at ⁋⁋ 29, 32, 33.
55
EZLinks Golf, LLC, at *6 (citing Cornell Glasgow, LLC v. La Grange Props, LLC,
2012 WL 2106945, at *9 (Del. Super. Ct. June 6, 2012)).
12
compensated;”56 and (2) “was injured by the opportunity cost of having to devote its
resources to a deal that was doomed from the start,” which resources “could have
been used to service a good-faith contract with another company.”57 For the breach
of contract claim the Complaint alleges that V-ME “sustained damages;”58 and
“caused Plaintiff to incur losses associated with credit card and/or Paypal charges.”59
The Court perceives no difference between damages incurred as a result of V-
ME “performing under the contract” and damages incurred because ChimeTV
breached its payment obligations. It is the essence of a contract that the contracting
parties undertake reciprocal obligations. The fact the one party was performing
under the contract simply means that it was not in breach as well. In that
circumstance, the performing party’s remedy is breach of contract damages.
V-ME also has alleged “opportunity cost” damages. In other words, V-ME
alleges that instead of wasting its resources on a deal that had no chance of success,
it could have devoted its resources to deals that had the potential to be successful.
However, “damages based upon lost opportunity and speculative alternatives are
difficult to prove, and as a general matter, do not constitute a cognizable injury.”60
56
Compl., at ⁋ 35, D.I. 1.
57
Id. at ⁋ 36.
58
Id. at ⁋ 42.
59
Id. at ⁋ 43.
60
Fin Cap, Inc v. Paynerd, LLP, 2023 WL 5543763, at *5 (Del. Super. Ct. Aug. 29,
2023) (citing Manzo v. Rite Aid Corp., 2002 WL 31926606, at *5 (Del. Ch. Dec. 19,
2002) aff’d 825 A.2d 239 (Del. 2003)(“[A]warding money damages to compensate
13
Because these “opportunity cost” damages at best are speculative and uncertain, the
Court does not recognize them as constituting an independent allegation of damages
sufficient to support a separate claim of fraudulent inducement. Accordingly,
ChimeTV’s motion to dismiss Count I – Fraudulent Inducement is GRANTED.
B. Count II - Breach of Contract
ChimeTV argues that the breach of contract claim should be dismissed because
V-ME did not allege that it provided ChimeTV with the contractually mandated
written notice of its default and the steps necessary to cure the default within 30
days.61 ChimeTV further argues that, in fact, V-ME did not comply with the
conditions precedent to bringing suit.62 On the other hand, V-ME points to
Paragraph 8 of the Complaint that alleges “‘all conditions precedent to the bringing
of this lawsuit have occurred.’”63 V-ME cites other portions of the Complaint that
indicate that ChimeTV was on notice of the breach.64 Viewing the allegations of the
Complaint in the light most favorable to V-ME, as it must at this stage, the Court
finds that V-ME has alleged that it met all conditions precedent for bringing this
plaintiff for the return she could have earned elsewhere…amounts to speculation
founded upon uncertainty…[P]laintiff’s assertion of ‘investment opportunity losses’
does not, in my opinion, state a cognizable injury.”)).
61
Def.’s Mot. to Dismiss, at ⁋⁋ 7, 13, 14, D.I. 12.
62
Id. at 7.
63
Pl.’s Resp., at ⁋ 14 (quoting the Complaint at ⁋ 8), D.I. 14.
64
Id. at ⁋ 15.
14
litigation.65 ChimeTV’s motion to dismiss Count II - Breach of Contract is
DENIED.
C. Count III - Unjust Enrichment
Lastly, ChimeTV moves to dismiss V-ME’s Unjust Enrichment claim,
contending unjust enrichment claims are only available in the absence of a formal
contract and fail to state a claim when they a premised on an express enforceable
contract.66 V-ME agrees that it cannot recover under both a breach of contract theory
and an unjust enrichment theory, but maintains that both claims should be allowed
to proceed as alternative pleadings under Superior Court Rule 8(e)(2).67
The parties both cite Vichi v. Koninklijke Phillips Elecs., N.V.68 and Anschutz
Corp. v. Brown Robin Capital,69 albeit with differing takeaways. ChimeTV quotes
Vichi for the proposition that ‘“a party cannot recover under a theory of unjust
enrichment if a contract governs the relationship that gives rise to the unjust
enrichment claim.”’70 Similarly, it cites Anschultz as generally supporting the
dismissal of unjust enrichment claims as duplicative where there is an enforceable
65
Of course, the development of the facts concerning V-ME’s compliance with any
contractual conditions precedent to litigation may result in the Court revisiting this
issue later in a different context.
66
Def.’s Mot. to Dismiss, at ⁋⁋ 8, 15, 16, D.I. 12.
67
Pl.’s Resp., at ⁋⁋ 17-20, D.I. 14.
68
62 A.3d 26 (Del. Ch. 2022).
69
2020 WL 3096744 (Del. Ch. June 11, 2022).
70
Def.’s Mot. to Dismiss, at ⁋ 15 (quoting Vichi 62 A.3d at 58), D.I. 12.
15
contractual relationship.71 V-ME counters that Vichi was a ruling on summary
judgment issued after the unjust enrichment claim had survived a motion to dismiss
and the Court in Anschultz declined to dismiss the unjust enrichment claim
notwithstanding the language cited by ChimeTV.72 Additionally, V-ME references
Vice Chancellor Laster’s reasoning in Garfield on behalf of ODP Corp. v. Allen73
that a pleading stage ruling, where all of the claims arise from a common nucleus
of operative facts, is unlikely to simplify discovery or the presentation of evidence.74
The Vice Chancellor found no utility at the early stage of the litigation in “delving
into the alternative theories to assess how they may interact”.75 Replying to V-ME,
ChimeTV notes that the plaintiff in Anschultz, unlike V-ME, disputed the validity of
the contract.76 In Vichi, as here, there was no doubt about the existence of an
enforceable contract, thereby barring recovery under an unjust enrichment theory.77
Lastly, ChimeTV points out that the Court in Garfield acknowledged there have
been multiple Delaware decisions where the Court conducted the same analysis of
71
Id.
72
Pl.’s Resp., at ⁋ 18, D.I. 14.
73
277 A.3d 296 (Del. Ch. 2022).
74
Id. at 361.
76
Id. at 362.
77
Def.’s Reply, at ⁋ 13, D.I. 13.
78
Id. at ⁋ 14.
79
Id. at ⁋ 15.
16
the potential interaction among claims at the pleading stage that ChimeTV seeks
here.78 It contends such an analysis would be beneficial.79
A closer look at the Unjust Enrichment count is warranted. First, it realleges
the first 27 paragraphs of the Complaint.80 Those paragraphs include allegations
that: (1) the parties entered into a contract on October 3 or 4, 2022;81 and (2) the
contract required ChimeTV to make installment payments totaling $700,000 per
year for two years in exchange for which V-ME would provide services “described
in detail under Section 4 of the Contract;”82 After alleging that ChimeTV was
unjustly enriched and V-ME impoverished, the Complaint states, “As to this Count,
if Plaintiff is barred from recovery as to Count I or Count II, there would be an
absence of remedy at law.”83
Like Schrödinger’s Cat,84 the Complaint alleges in the Unjust Enrichment
count that the contract both exists and does not exist simultaneously. But just as this
80
Id. at ⁋ 16.
81
Compl. at ⁋ 44, D.I. 1.
82
Id. at ⁋ 10.
83
Id. at ⁋ 11.
84
Id. ⁋ 49.
85
Schrödinger’s Cat is a thought experiment devised by the Australian physicist
Erwin Schrödinger. The experiment is designed to illustrate a paradox of quantum
superposition wherein a hypothetical cat may be considered both alive and dead
simultaneously because its fate is linked to a random event that may (or may not)
occur. The cat has a 50% chance of dying and 50% of living after an hour in an
experimental box. While the cat is in the box, it is both dead and alive.
17
Court need not ponder paradoxes of quantum physics, it need not ponder the
alternate theories and their interaction now. In moving to dismiss the Breach of
Contract claim, ChimeTV advances the argument that all of the conditions precedent
to initiating litigation had not been alleged or performed. Based on the skeletal
record before it and the limitation on the Court’s review to the well pleaded
allegations in the Complaint, the Court declined to dismiss that count. A more well
developed factual record might present ChimeTV with an opportunity to ask the
Court to revisit the question of whether the conditions precedent to initiating
litigation were satisfied. In that event, were the Court to bar V-ME from proceeding
on its Breach of Contract claim, the viability of the Unjust Enrichment claim then
would be at issue. For that reason, the Court finds the more prudent course to be to
await future developments before “delving into the alternate theories to assess how
they may interact.” ChimeTV’s motion to dismiss Count III – Unjust Enrichment is
DENIED.
THEREFORE, ChimeTV’s Motion to Dismiss Count I – Fraudulent
Inducement is GRANTED; it’s Motion to Dismiss Count II – Breach of Contract is
DENIED; and it’s Motion to Dismiss Count III – Unjust Enrichment is DENIED.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
18