Norcom Research LLC v. Net2Phone Global Services LLC ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-1243
____________
NORCOM RESEARCH, LLC,
Appellant
v.
NET2PHONE GLOBAL SERVICES LLC
____________
No. 22-1293
NORCOM RESEARCH LLC
v.
NET2PHONE GLOBAL SERVICES LLC,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:20-cv-12592)
District Judge: Hon. Stanley R. Chesler
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 24, 2023
Before: HARDIMAN, KRAUSE, and MATEY, Circuit Judges.
(Filed: January 30, 2023)
___________
OPINION*
____________
HARDIMAN, Circuit Judge.
Norcom Research, LLC appeals the District Court’s orders dismissing its claims
for breach of contract, unjust enrichment, and breach of the implied covenant of good
faith and fair dealing. We will affirm, essentially for the reasons stated by the District
Court.1
I
This appeal involves a contract dispute arising under New Jersey law. Norcom
seeks commissions it claims are due under its contract with Net2Phone Global Services,
LLC (N2P). N2P sells voice-over IP and cloud-computing telephone services. Norcom
recruits independent sales companies (ISCs) to sell telephone, energy, and electricity
services to third parties. In June 2015, Norcom and N2P entered a contract under which
Norcom would recruit ISCs to sell N2P’s services. If the ISCs that Norcom recruited
generated sales for N2P, Norcom was entitled to commissions based on a percentage of
the net revenue generated by those sales.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
The District Court exercised diversity jurisdiction under 28 U.S.C. § 1332. We have
jurisdiction under 28 U.S.C. § 1291.
2
Over the next year, the parties signed four written amendments to the contract
documenting twenty-five ISCs that Norcom referred to N2P. But on August 15, 2016,
N2P exercised its right to terminate the contract.
Norcom sued N2P in the United States District Court for the District of New
Jersey for breach of contract, fraud, breach of the duty of good faith and fair dealing,
unjust enrichment, rescission for unconscionability, and violation of the New Jersey Sales
Representatives’ Rights Act (SRRA). Norcom alleged that, as of the filing of its suit, it
had not received any commissions from N2P. Norcom attached to the complaint the
contract with N2P and numerous exhibits.2 N2P moved under Rule 12(b)(6) of the
Federal Rules of Civil Procedure to dismiss all claims in Norcom’s Second Amended
Complaint.
The District Court granted in part and denied in part N2P’s motion. Norcom Rsch.,
LLC v. Net2Phone Glob. Servs., LLC, 2021 WL 1153140, at *1 (D.N.J. Mar. 26, 2021). It
dismissed Norcom’s breach of contract claim for commissions from ISCs that were not
listed on an amendment to the contract.3 Id. at *4. The Court found that Section 1.3 of the
contract “makes it clear that Norcom could only receive commissions for referring an
ISC if the parties later entered into a signing [sic] amendment regarding that specific
2
We may review documents attached to a complaint in deciding a motion to dismiss.
McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009).
3
This determination also mandated dismissal of Norcom’s SRRA claim as to those non-
listed ISCs. See N.J. Stat. Ann. § 2A:61A-2.
3
ISC.” Id. The Court explained that the written amendment requirement protected N2P
from paying commissions to two recruiters for the same referral. Id.
The District Court also dismissed Norcom’s breach of the implied covenant of
good faith and fair dealing claim because “there [was] no indication here that N2P acted
in bad faith” and N2P “demonstrated its willingness to act in good faith by entering into
four amendments” to the contract. Id. at *6. And the Court dismissed Norcom’s unjust
enrichment claim as duplicative of its breach of contract claim because Norcom did not
challenge the validity of the contract.4 Id. The Court later granted Norcom’s motion to
voluntarily dismiss with prejudice its surviving claims for violation of the SRRA and
breach of contract as to ISCs memorialized on written amendments to the agreement.
This timely appeal followed.
II
A
Norcom first argues that N2P owes commissions for all ISCs that Norcom
recruited, even if those ISCs were not incorporated into the contract via written
amendment, because the contract required only that Norcom refer the ISC to N2P. We
disagree.
In relevant part, the contract states:
1.3 Referral of Other Independent Sales Companies: [Norcom] may refer
other independent sales companies (each an “ISC”) to N2P, whose purpose
will be to refer Contacts to N2P. [Norcom] shall provide to N2P, in writing,
4
The District Court also dismissed Norcom’s fraud and recission claims, id. at *5, *7.
Norcom does not appeal their dismissal.
4
the following information regarding each ISC: (i) name, (ii) address, (iii)
telephone number, (iv) nature of business, and (v) any other information
requested by N2P. Each such ISC shall enter into a separate agreement with
N2P and shall be paid a Commission directly by N2P (pursuant to the terms
agreed to by N2P and such ISC), not by [Norcom]. The referral fee that
[Norcom] shall receive in connection with the referral of such ISC to N2P
shall be five percent (5%) of the Net Revenues generated by such ISC’s
Contacts, and shall be memorialized in a separate signed writing which shall
be added to this Agreement as an Exhibit.
App. 79. The provision sets forth certain conditions precedent for Norcom to receive a
commission for referring an ISC to N2P—Norcom must provide, in writing, certain
identifying information for the ISC; the ISC must enter into a separate written agreement
with N2P; and the ISC referrals must be memorialized in a separate signed writing
attached to the contract.
The contract “as expressed by the words employed, when read and construed as a
whole” does not entitle Norcom to commissions for referred ISCs that are not
memorialized in a signed writing. Vanguard Telecomms., Inc. v. S. New England Tel.
Co., 900 F.2d 645, 651 (3d Cir. 1990) (citation omitted). Contrary to Norcom’s assertion
that memorialization was a mere course of dealing or “perfunctory procedure” adopted by
the parties, Norcom Br. 12, the contract states that “[t]he referral fee that [Norcom] shall
receive in connection with the referral of such ISC to N2P . . . shall be memorialized in a
separate signed writing which shall be added to this Agreement as an Exhibit.” App. 79
(emphasis added). Norcom even appears to concede that a separate signed amendment
was contractually required. See Norcom Br. 14 (“[R]equiring N2P to place all Norcom-
recruited ISCs on a written, signed amendment would not constitute a change [in the
contract] because N2P was already required to place all ISCs on a written amendment
5
once the ISCs were recruited by Norcom. In fact, memorializing the names was a
requirement of the Agreement rather than a change in terms.”); Norcom Br. 13
(describing Section 1.3 as “requir[ing] only a memorialization in a separate signed
writing after the ISC has already been referred by Norcom”).
Section 6.4 of the contract further rebuts Norcom’s contention that Section 1.3’s
writing requirement merely served to confirm a “‘deal’ that was already done.” Norcom
Br. 13. Section 6.4 permits N2P “to enter into the same or similar [referral]
arrangements” with other entities, highlighting the need for a written record of ISCs
referred by Norcom to avoid multiple referral agencies claiming commissions on the
same ISCs. App. 81; see also Norcom, 2021 WL 1153140, at *4. Reading the contract “as
a whole in a fair and common sense manner,” Norcom is entitled to commissions only for
ISCs that were memorialized in a separate, signed amendment. Hardy ex rel. Dowdell v.
Abdul-Matin, 965 A.2d 1165, 1169 (N.J. 2009).5
Finally, the parties’ conduct confirms our interpretation of the contract. See
Philips Elecs. & Pharm. Indus. Corp. v. Leavens, 421 F.2d 39, 45 (3d Cir. 1970) (“A well
recognized principle of contract law requires that the terms of a contract be interpreted in
5
Norcom also argues that requiring ISCs to be identified in written amendments made
N2P’s obligation to pay commissions optional because N2P exercised sole discretion
whether to include a Norcom-recruited ISC in an amendment. Norcom forfeited this
argument by failing to raise it in the District Court. Barna v. Bd. of Sch. Dirs. of Panther
Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017). Moreover, the contract is not illusory
because the covenant of good faith and fair dealing obliged N2P to memorialize in
writing Norcom-recruited ISCs. See In re Cendant Corp. Litig., 264 F.3d 286, 300 (3d
Cir. 2001) (“An implied obligation to use good faith is enough to avoid the finding of an
illusory promise.”) (citation omitted).
6
light of the meaning which the parties themselves have attached to them as evidenced by
their subsequent conduct.”). Norcom asked N2P to prepare amendments for ISCs that it
referred, see App. 124, App. 165–67, 170–71, and expressed concern that deals brought
in by an ISC not included on an amendment would not be eligible for commissions. App.
124. And N2P worked with Norcom to compile ISC information for inclusion on
amendments. See App. 149 (Second Amended Complaint Ex. 2 [email from N2P to
Norcom with a draft list of referred ISCs for Norcom to review and update. Taking these
facts as true and “interpret[ing] [them] in the light most favorable” to Norcom, the parties
understood that a separate signed writing was required for Norcom to receive
commissions. McTernan, 577 F.3d at 526.
B
Norcom next argues that N2P breached the implied covenant of good faith and fair
dealing, which is present in all contracts governed by New Jersey law. See Emerson
Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 169–70 (3d Cir. 2001). Norcom alleges
that N2P breached the implied covenant by: (i) unreasonably terminating the contract to
avoid paying commissions; (ii) failing to prepare amendments for referred ISCs; (iii)
failing to keep Norcom informed about which referred ISCs signed contracts with N2P to
deceive Norcom into believing that those ISCs did not sell N2P’s services; and (iv)
failing to pay Norcom commissions for the memorialized ISCs.
As to Norcom’s first allegation, the District Court correctly determined that N2P
had a contractual right to terminate the contract without cause after one year. App. 80
(providing that the contract “shall remain in effect for a period of one (1) year” and “shall
7
automatically renew on a month-to-month basis unless terminated by either party upon
. . . written notice”). Norcom’s conclusory allegation that N2P terminated the contract to
avoid paying commissions is insufficient to demonstrate bad faith. See Elliott & Frantz,
Inc. v. Ingersoll-Rand Co., 457 F.3d 312, 329 (3d Cir. 2006) (“Absent bad motive or
intention, decisions a contract expressly permits which happen to result in economic
disadvantage to the other party are of no legal significance.”). As to Norcom’s final
allegation, N2P’s failure to pay commissions for memorialized ISCs is not, by itself,
suggestive of bad faith—it merely suggests breach of contract, the claim Norcom
voluntarily dismissed.
Whether Norcom’s other allegations plausibly show that N2P acted “with ill
motives and without any legitimate purpose to destroy [Norcom’s] reasonable
expectations” is a closer question. Elliott & Frantz, Inc., 457 F.3d at 329. That N2P
negotiated and signed four amendments does not foreclose the possibility that N2P
breached the implied covenant by arbitrarily refusing to draft additional amendments for
referred ISPs. But Norcom’s allegations of bad faith, taken as true, do not cross the
threshold from possible to plausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
At most, the Second Amended Complaint alleges that Norcom initiated referral
discussions with certain ISCs and N2P that N2P never included on an amendment. But
N2P was not required to prepare an amendment for every ISC that Norcom spoke with
(or intended to speak with) on its behalf, and Norcom does not plead facts suggesting that
N2P accepted those referrals by contracting with those ISCs. See, e.g., App. 161 (Second
Amended Complaint Ex. 29 [email from Norcom that it plans to speak with Allied Global
8
about becoming an N2P agent]); App. 165 (Second Amended Complaint Ex. 31 [email
from Norcom asking N2P to add Sandler Partners to an amendment because Sandler
“discuss[ed] the opportunity” with Norcom]). N2P’s failure to immediately assent to
Norcom’s requests for amendments does not amount to bad faith, nor do disputes as to
whether Norcom referred certain ISCs in the first place. And Norcom does not provide
any factual support for its assertion that N2P deceived it about which referred ISCs sold
N2P’s services. We “need not credit a complaint’s bald assertions,” and we do not here.
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).6
Even if the contract granted N2P complete and unilateral discretion to prepare
amendments, Norcom pleads no plausible factual allegations that N2P exercised that
discretion “arbitrarily, unreasonably, or capriciously.” Wilson v. Amerada Hess Corp.,
773 A.2d 1121, 1130 (N.J. 2001). Instead, N2P furthered its own business interests by
waiting to prepare amendments until it had contracted with an ISC. See, e.g., App. 123
(Second Amended Complaint Ex. 15 [email from N2P explaining that it hasn’t “gotten a
single deal yet” and telling Norcom “[l]et’s bring in a deal and we’ll get everyone on the
next addendum”]). Absent non-conclusory allegations of “bad motive or intention,”
N2P’s “discretionary decisions that happen to result in economic disadvantage” to
6
Norcom’s Second Amended Complaint includes a list of ISCs that it claims it referred
to N2P but which were not included on any signed amendments. Second Amended
Complaint Ex. 35. But Norcom fails to plead any facts about the vast majority of these
ISCs, and we need not take as true Norcom’s assertion that it referred these ISCs without
more. See Morse, 132 F.3d at 906.
9
Norcom do not plausibly allege a breach of the implied covenant. Wilson, 773 A.2d at
1130.
C
Norcom finally argues that the District Court erred in dismissing its unjust
enrichment claim. We disagree because “recovery under unjust enrichment may not be
had when a valid, unrescinded contract governs the rights of the parties.” Van Orman v.
Am. Ins. Co., 680 F.2d 301, 310 (3d Cir. 1982). Norcom recognizes this but contends that
it challenged the contract’s validity by seeking recission for unconscionability. But the
District Court held the contract was not unconscionable. Norcom, 2021 WL 1153140, at
*6. Norcom does not challenge that ruling on appeal, so the contract’s validity is no
longer in dispute.7
Norcom also contends that it can recover under an unjust enrichment theory for
referred ISCs not memorialized on an amendment to the contract because those ISCs
were not “expressly covered” by the contract. Norcom Br. 24. But all referred ISCs were
covered by the contract—any ISCs that were referred but not memorialized simply failed
to conform to the contract’s requirements for commissions eligibility. Thus, any failure of
N2P as to those ISCs could only support a suit for breach. See Van Orman, 680 F.2d at
310.
7
Norcom also claims that it is challenging “the validity of N2P’s failure/refusal to
include certain Norcom recruited ISCs in the amendments.” Norcom Resp. Br. 29. But
this is not a challenge to the contract’s validity; it’s an argument for breach, including of
the implied covenant of good faith and fair dealing. So this theory cannot save Norcom’s
unjust enrichment claim.
10
* * *
For the reasons stated, we will affirm.8
8
Because we will affirm the judgment of the District Court, we will dismiss N2P’s cross-
appeal regarding the New Jersey SRRA as moot.
11