Outbox Systems, Inc. d/b/a Simplus v. Trimble Inc. ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
OUTBOX SYSTEMS, INC. )
d/b/a SIMPLUS, )
Plaintiff, )
)
v. ) C.A. No. N21C-11-123
) PRW CCLD
TRIMBLE INC., )
Defendant. )
Submitted: May 5, 2022
Decided: August 24, 2022
Upon Defendant Trimble Inc.’s Motion to Dismiss Count II of the Complaint,
GRANTED.
MEMORANDUM OPINION AND ORDER
Patricia L. Enerio, Esquire, Jamie Brown, Esquire, HEYMAN ENERIO GATTUSO &
HIRZEL, Wilmington, Delaware; Gerry Silver, Esquire (argued), SULLIVAN &
WORCESTER LLP, New York, New York, Attorneys for Plaintiff Outbox Systems,
Inc. d/b/a Simplus.
Steven T. Margolin, Esquire, Samuel L. Moultrie, Esquire, GREENBERG TRAURIG,
LLP, Wilmington, Delaware, Attorneys for Defendant Trimble Inc.
WALLACE, J.
The Court here resolves Defendant Trimble Inc.’s Motion to Dismiss
Count II of the Complaint alleging that Outbox Systems, Inc. d/b/a Simplus failed
to state a claim for account stated and that Count II is impermissibly duplicative of
Count I. For the reasons set forth below, that motion is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This dispute arises from Defendant Trimble Inc.’s alleged breach of certain
technology consulting agreements between itself and Plaintiff Outbox Systems, Inc.
d/b/a/ Simplus (“Simplus”).1
Simplus is a corporation organized under the laws of Delaware, with its
principal place of business in Salt Lake City, Utah.2 Trimble is also a corporation
organized under the laws of Delaware, but its principal place of business is
Sunnyvale, California.3 Trimble provides software and hardware services to
customers in industries such as agriculture, construction, geospatial and
transportation, and logistics.4
On April 1, 2020, the parties executed a Master Consulting Services
Agreement (“MSA”) under which Simplus was to provide technology consulting
1
Complaint ¶ 1, Nov. 12, 2021 (D.I. 1) (“Compl.”).
2
Id. ¶ 2.
3
Id. ¶ 3.
4
Id. ¶ 4.
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services to Trimble.5 The MSA provided that services would be performed pursuant
to statements of work (“SOWs”) entered into by the parties.6 The MSA stated that
“[u]nless otherwise expressly specified in a [SOW], (i) all payments are due in U.S.
Dollars within 45 days of Trimble’s receipt of an undisputed invoice.”7
The parties entered into three separate SOWs between November 9 and
December 14, 2020.8 Each SOW provided for billing by Simplus on a “time and
materials” basis using the hourly rates set forth therein.9
Simplus says it performed its obligations in accordance with the MSA and
SOWs and invoiced Trimble as it completed work.10 But Trimble allegedly failed
to perform its duties under the same.11 For instance, Trimble was obligated to
provide Simplus with certain “Product Bundles” at the outset of a project.12 These
Product Bundles relate to particular offerings and pricing Trimble would be making
available to its customers for its building, construction, and architectural product
5
Id. ¶¶ 6, 8.
6
Id. ¶ 8.
7
Id., Ex. A, MSA at § 5.1.
8
Compl. ¶¶ 9-10. Specifically, (1) the “Illuminate SOW”, where Simplus was to provide
assistance and support to Trimble relating to business transformation efforts; (2) the “System
Integration” SOW, where Simplus was to provide services to Trimble relating to integrating
Salesforce with Trimble’s other existing software and databases; and (3) the “Data Migration”
SOW, where Simplus was to move data over from Trimble’s old systems to its new systems. Id.
9
Id. ¶ 11.
10
Id. ¶¶ 12, 30-31.
11
Id. ¶ 20.
12
Id. ¶ 13.
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lines.13 Without these Product Bundles, Simplus would be unable to complete a
design and build as requested; that meant Simplus’s builds couldn’t then be fully
integrated.14
Nevertheless, Simplus delivered its builds to Trimble using what information
Trimble did provide, and these builds were at least “functional from a business
perspective.”15 Thereafter, Trimble decided to halt the project and, in August 2021,
instructed Simplus to stop its efforts because the work was incomplete.16 Simplus
alleges in its Complaint that the work wasn’t complete because Trimble failed to
perform its contractual obligations.17
Simplus brought this action alleging Trimble’s failure to pay invoices that
Simplus sent for the work it had performed.18 According to Simplus, Trimble never
expressly disputed any of Simplus’s invoices.19 Simplus sent a total of seventeen
invoices from June 16, 2021, to August 19, 2021. They added up to $2,132,348.98.20
13
Id. ¶ 14. This included various software modules and combinations of such modules, software
maintenance offerings, training offerings, and professional services offerings, along with custom
pricing. Id.
14
Id. ¶ 23.
15
Id. ¶ 27.
16
Id. ¶¶ 28-29.
17
Id. ¶ 29.
18
Id. ¶ 30.
19
Id. ¶ 31.
20
Id. ¶ 32.
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To date, Trimble hasn’t paid even one of these invoices.21 Simplus drew claims in
in its complaint for: (i) breach of contract; (ii) account stated; and, in the alternative,
(iii) unjust enrichment.22
The first claim alleges Trimble breached the MSA and SOWs by failing to
pay Simplus for its services invoiced thereunder.23 The second claim reads (i) that
“[a]n account existed as between Simplus and Trimble”; (ii) that Trimble “failed to
pay Simplus the total amount due of $2,132,348.98 on outstanding invoices”; and
(iii) that “Trimble never made timely objection to the particular invoices as billed
and/or account stated, never disputed the amount of any invoice, and did not timely
dispute its requirement to pay any particular invoice.”24 Finally, the unjust
enrichment claim alleges that Trimble’s failure to pay for Simplus’s services has
conferred an unearned and undeserved benefit upon Trimble, which it would be
against equity and good conscience for Trimble to retain.25
Trimble moved to strike Simplus’s demand for an affidavit of defense under
10 Del. C. § 3901 and to dismiss Count II of the Complaint.26 Simplus agreed to
21
Id.
22
See generally Compl.
23
Id. ¶ 38.
24
Id. ¶¶ 41-44.
25
Id. ¶ 46.
26
Def. Trimble’s Mot. to Strike and Mot. to Dismiss, Jan. 7, 2022 (D.I. 11) (“Trimble’s Motion”).
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withdraw its demand for an affidavit of defense27—mooting that issue and leaving
the viability of Count II as the only point of dispute. At bottom, Trimble’s Motion
poses two questions: (i) whether Simplus pleaded facts sufficient to support an
account stated claim; and (ii) whether the account stated claim is impermissibly
duplicative of Simplus’s breach-of-contract claim.
II. STANDARD OF REVIEW
A party may move to dismiss under this Court’s Civil Rule 12(b)(6) for failure
to state a claim upon which relief can be granted.28 In resolving a 12(b)(6) motion,
the Court (1) accepts as true all well-pleaded factual allegations in the complaint; 29
(2) credits vague allegations if they give the opposing party notice of the claim;
(3) draws all reasonable factual inferences in favor of the non-movant; and (4) denies
dismissal if recovery on the claim is reasonably conceivable.30 So dismissal is
inappropriate unless “under no reasonable interpretation of the facts alleged could
the complaint state a claim for which relief might be granted.”31
27
Pl. Simplus’s Answering Br. in Opp’n to Def.’s Mot. at 1, Jan. 28, 2022 (D.I. 17) (“Simplus’s
Answering Br.”).
28
Del. Super. Ct. Civ. R. 12(b)(6).
29
But the Court need not adopt “every strained interpretation of the allegations the plaintiff
proposes.” Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001).
30
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 535 (Del. 2011).
31
Unbound Partners Ltd. P’ship v. Invoy Holdings Inc., 251 A.3d 1016, 1023 (Del. Super. Ct.
2021) (internal quotation marks omitted); see Cent. Mortg., 27 A.3d at 537 n.13 (“Our governing
‘conceivability’ standard is more akin to ‘possibility . . . .’”).
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“Generally, matters outside the pleadings should not be considered in ruling
on a motion to dismiss.”32 But the Court might consider documents or exhibits
outside the pleadings when they are “integral to a . . . claim and incorporated into
the complaint.”33
III. PARTIES’ CONTENTIONS
According to Trimble, Simplus has failed to adequately plead even one
necessary element of an account stated claim.34 Trimble says that the Complaint
contains no allegations of an agreement constituting an “account” being created after
any debt was incurred.35 Instead, says Trimble, the Complaint merely alleges that
the parties entered into a written agreement and that invoices were subsequently sent
to Trimble for services allegedly rendered.36 It further argues that there are no
factual allegations that Trimble stated or admitted to owing any specific sum to
Simplus on the reputed account, much less that Trimble made this admission “after
the original account or debt was created.”37 Finally, Trimble insists the account
32
In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 68 (Del. 1995).
33
Windsor I, LLC v. CWCap. Asset Mgmt. LLC, 238 A.3d 863, 873 (Del. 2020); see also
Malpiede, 780 A.2d at 1083 (“[A] claim may be dismissed if allegations in the complaint or in the
exhibits incorporated into the complaint effectively negated the claim as a matter of law.”).
34
Trimble’s Motion at 10-12.
35
Id. at 11.
36
Id.
37
Id. at 12.
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stated claim is “entirely duplicative of [Simplus’s] breach of contract claim.”38
In Simplus’s view, Count II should not be dismissed because it has pleaded
factual allegations sufficient for an account stated claim.39 Specifically, it contends
that the invoices sent to Trimble constituted a then-existing debt, and that Trimble
failed to object to the invoices within a reasonable time.40 These facts are sufficient
to plead that Trimble assented to owing a specific sum or that it agreed to a past debt,
says Simplus, because “allegations of a ‘failure to object to an invoice within a
reasonable time can constitute the assent necessary for estoppel by account
stated.’”41 In other words, Simplus urges it does not need to plead that Trimble
expressly assented or admitted to owing a certain amount.42
During argument, the Court questioned the practical effect of the account
stated claim in light of the breach-of-contract claim.43 Simplus explained the claims
are not redundant because “you don’t have to prove all the elements of a breach of
contract on an account-stated claim.”44 In other words, under its account stated
38
Def. Trimble’s Reply Br. in Further Supp. of its Mot. to Strike and Mot. to Dismiss at 6, Feb.
8, 2022 (D.I. 18) (“Trimble’s Reply Br.”).
39
Simplus’s Answering Br. at 4.
40
Id. at 4-5.
41
Simplus’s Answering Br. at 5 (quoting CP Printing Ltd. v. Glitterati Inc., 2021 WL 212690,
at *1 (D. Del. Jan. 21, 2021)).
42
Id.43
Hearing Tr. (Feb. 24, 2022) at 17 (D.I. 25).
44
Id. at 20.
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theory, Simplus contends it does not have to show performance, breach, or “get into
every nitty-gritty” of the complicated MSA details at issue in this case.45
IV. DISCUSSION
For any number of reasons, Simplus can’t—from these parties’ written
agreements and the facts alleged—formulate an account stated claim that can stand
under Delaware law. First, Simplus fails to state a claim for account stated because
there seems to have been no recognizable “account” formed and there is nothing in
Simplus’s pleading that could reasonably support a read that Trimble stated or
admitted to owing any specific sum on an “account”—if one had existed. Second,
the account stated claim, in these circumstances, impermissibly duplicates Simplus’s
breach-of-contract claim both as to the substance of the alleged wrong complained-
of and the wholly identical damages sought. Third—and perhaps the Court should
have led with this—the account stated claim attempts to circumvent the parties’
contractual arrangements in a way antithetical to bedrock Delaware contract law.
Plainly, the account stated claim can’t survive.
A. HISTORY OF ACCOUNT STATED CLAIMS.
“Account” is a common law form of action, defined as an “unsettled claim or
demand by one person against another based upon a transaction creating a debt and
creditor relation between the parties which is usually but not necessarily represented
45
Id.
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by an ex parte record kept by one or both of them.”46 An account stated claim is
understood as a type of contract claim.47 As one court explains, “an action for
‘account stated’ still sounds in contract just like an action for quasi-contract or unjust
enrichment, and is no more ‘independent’ from contract actions generally than a
negligence action is independent of tort actions generally.”48 In other words, an
account stated is “just a variety of contract.”49
To make a prima facie account stated claim, Delaware law requires a plaintiff
to allege the following: “(1) an account existed between the parties; (2) the defendant
stated or admitted to owing a specific sum on the account to the plaintiff; and (3) the
defendant made this admission after the original account or debt was created.”50
Beyond that, however, Delaware jurisprudence is limited in this space. As such, a
general overview of account stated claims is helpful.
1. How Relevant Treatises Explain Account Stated Claims.
Williston on Contracts explains that “[a]n ‘account stated’ is a promise by the
46
Citibank (S.D.) N.A. v. Santiago, 2012 WL 592873, at 2 (Del. Com. Pl. Feb. 23, 2012) (citing
Chrysler Corp. v. Airtemp Corp., 426 A.2d 845, 846 (Del. Super. Ct. 1980)).
47
Richburg v. Palisades Collection LLC, 247 F.R.D. 457, 465 (E.D. Pa. 2008); see also Cosy
Goose Hellas v. Cosy Goose USA Ltd., 581 F.Supp.2d 606, 614 (S.D.N.Y. 2008) (noting that
claims for account stated, goods had and received, and unjust enrichment sound in contract or
quasi-contract).
48
Richburg, 247 F.R.D. at 465.
49
Id.
50
Sparebank 1 SR-Bank ASA v. Wilhelm Maass GMBH, 2019 WL 6033950, at *6 (Del. Super.
Ct. Nov. 5, 2019) (quoting Citibank (S.D.) N.A., 2012 WL 592873, at *2 (citing Chrysler Corp.,
426 A.2d at 849 (internal quotations omitted))).
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debtor to pay a stated sum of money which the parties have agreed upon as the
amount due. . . . [An account stated] may be implied from the retention of an account
rendered for an unreasonable period of time without objection and from the
surrounding circumstances.”51 But, a promise “to pay a sum of money based on an
antecedent transaction will not by itself create an account stated, even though the
promise is supported by consideration and is binding; rather there must be an
antecedent debt to which the promise relates and which the promise ‘states’ or
‘restates.’”52
According to Williston, the “essential elements of an account stated are
(1) previous transactions between the parties establishing the relationship of debtor
and creditor; (2) an agreement between the parties, express or implied, on the amount
due from the debtor to the creditor; and (3) a promise by the debtor, express or
implied, to pay the amount due.”53 “The basic requirement of an account stated is
that an exact and definite balance must be struck as to which both the creditor and
debtor assent.”54
So, as a general principle, unequivocal assent between the parties is
paramount in establishing an account stated claim. Per the Restatement (Second) of
51
29 Williston on Contracts § 73:55 (4th ed. 2021).
52
Id.
53
Id. § 73:56
54
Id.
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Contracts, “assent may be inferred from [] conduct . . . [and] retention of the
statement for an unreasonably long time is a manifestation of [] assent. How long a
time is unreasonable is a question of fact to be answered in light of all the
circumstances.”55
And, Woolley on Delaware Practice tells us:
An account is an agreement by both parties that all items are true. It
changes the character of the original debt and is a new contract or
undertaking, . . . No recovery can be had under an account stated, unless
there is evidence that there was an account stated between the parties,
in which the person said to be charged, stated, or admitted a certain sum
to be due and owing from him to the other. In the absence of such proof
no recovery can be had under the count for account stated.56
2. Delaware Courts’ Treatment of Account Stated Claims.
There are few Delaware cases that discuss account stated claims, much less
recent Delaware cases.
In 1926, this Court spoke of an account stated claim in Baliezewski v.
Putzcus.57 In that case, the plaintiff brought an action before a Justice of the Peace,
where the claim was for the sale and delivery of goods.58 The defendant appealed
the entry of judgment to this Court, and the plaintiff framed his claim here as one of
55
Restatement (Second) of Contracts § 282, cmt. b (1981).
56
2 Woolley on Delaware Practice § 1460 (1906) (emphasis added).
57
Baliezewski v. Putzcus, 132 A. 217 (Del. Super. Ct. 1926).
58
Id. at 218.
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“account stated.”59 The defendant sought to strike the claim because it set out a
different cause of action than that tried before the Justice of the Peace.60 Citing
earlier Delaware cases, the Beliezewski court noted “[a]n account stated is an
agreement, by both parties, that all the items are true. It changes the character of the
original debt, and is a new contract or undertaking.”61 Moreover, “[a]n account
stated alters the character of the original indebtedness, and is itself in the nature of a
new promise or undertaking, and raises a new cause of action between the parties.”62
Relying on these principles, the Court held that the action before the Justice of the
Peace was a “different cause of action” than the account stated claim raised by the
plaintiff on appeal.63 In other words, this Court’s actual holding was that the account
stated claim argued on appeal was an entirely different claim than the breach-of-
contract count championed below.64 And so, the Court had little reason to—and did
not—definitively resolve what might be needed to satisfy the elements of an account
stated claim under Delaware law.
Much more recently, in 2019, this Court was presented with a motion to
dismiss an account stated claim in Sparebank 1 SR-Bank ASA v. Wilhelm Maass
59
Id.
60
Id.
61
Id. (internal quotations omitted).
62
Id. at 219 (internal quotations omitted).
63
Id.
64
See id. at 219.
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GMBH.65 The defendant ordered, received, and failed to pay for ten shipments of
custom steel components from a manufacturer that later filed for bankruptcy. The
Sparebank plaintiff purchased that manufacturer’s claims against the defendant from
the company’s bankruptcy estate.66 The arrangement between the defendant
customer and manufacturer was relatively straightforward. The defendant would
place orders for steel products and the manufacturer would produce and ship the
ordered products. The manufacturer then would send the defendant invoices.67 The
defendant allegedly never paid the invoices and claimed it had never placed the
orders at issue.68
The defendant argued the plaintiff failed to plead facts to support an account
stated claim because the complaint was devoid of facts that the defendant stated or
admitted to owing a specific sum on the account to the plaintiff.69 The plaintiff
answered that discovery would reveal the defendant acknowledged at some point an
obligation to pay a past debt.70 The Court held that the complaint contained no
allegations that the defendant stated or admitted to owing a specific sum on the
65
Sparebank 1 SR-Bank ASA, 2019 WL 6033950, at *6-7.
66
Id. at *1.
67
Id.
68
Id.
69
Id. at *6.
70
Id.
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account, and dismissed the claim.71
In Citibank (South Dakota) N.A. v. Santiago, the Court of Common Pleas was
also resolving a motion to dismiss an account stated claim.72 There, the plaintiff
brought a number of claims against the defendant that centered around non-payment
of credit card statements.73 The complaint sufficiently alleged a breach-of-contract
claim; namely, (1) a contract existed between the parties for a specific amount,
(2) defendant breached by failing to pay the amounts due, and (3) as a result, plaintiff
suffered damages.74 The court, on deciding the account stated claim, noted the
plaintiff merely alleged the defendant under “the account” was required to make
prompt and regular payments.75 The court granted the motion to dismiss because
the complaint failed to plead facts that the defendant stated or admitted to owing a
specific sum on the account to the plaintiff.76
Finally, the United States District Court for the District of Delaware discussed
an account stated claim in CP Printing Ltd. v. Glitterati Inc.77 There, the plaintiff
moved for summary judgment on breach-of-contract and related claims—none of
71
Id. at *7.
72
Citibank (S.D.) N.A., 2012 WL 592873, at *1.
73
See id.74
Id. at *2.
75
Id.
76
Id.
77
CP Printing Ltd., 2021 WL 212690.
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which were an account stated claim.78 The plaintiff claimed to have sold defendant
approximately $228,202.24 in printed books.79 But the defendant paid the balance
only in part, leaving a substantial amount outstanding.80 The plaintiff argued the
“invoices delivered to [defendant] . . . operate[d] as account stated [sic].”81 In a brief
discussion citing just a general principle from Williston—not Delaware law—the
federal court noted that “[w]hile the failure to object to an invoice within a
reasonable time can constitute the assent necessary for estoppel by account stated,
what constitutes a ‘reasonable time for the purposes of this rule is generally a
question for the jury.’”82 “As a result, a debtor’s ‘silence with respect to . . . invoices
received is not so conclusive as to require a directed verdict against it.’”83
Accordingly, the district court denied the plaintiff’s motion for summary judgment.84
In sum, Delaware state courts have rarely dealt with account stated claims,
and when they have, the factual recitations were often not very detailed.85 But what
78
See id. at *1.
79
Id.
80
Id.
81
Id.
82
Id. But, even there, the federal court recognized a still further limitation of that non-Delaware-
law-based principle. See id. (“An account stated can estop a party from disputing an amount owed,
but only if ‘the creditor and the debtor assent’ to an ‘exact and definite balance.’”).
83
Id.
84
See id. at *2.
85
So too with the one Delaware federal district court case—CP Printing—Simplus leans on
heavily. Simplus’s Answering Br. at 5 (quoting CP Printing Ltd., 2021 WL 212690, at *1).
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the Court can draw from these cases is that a plaintiff must plead facts that the
defendant stated or admitted to owing a specific sum on an account to plaintiff.
Further, the common law doctrine and various treatises make clear that the defendant
must make such admission after the original account or debt was created. But no
court, applying Delaware law, has expressed with clarity: (1) whether the “account”
can be culled from a contractual relationship like the one here?; and (2) if so, to
satisfy the elements of a Delaware account stated claim, whether such admission
must be express or might be implied? As to the first question, it cannot. As to the
second, silence is not enough.
B. DISMISSAL OF SIMPLUS’S ACCOUNT STATED CLAIM IS WARRANTED.
1. Simplus Failed to Plead Facts Sufficient to Support a
Delaware Account Stated Claim.
The basic elements of an account stated claim are the same across
jurisdictions, but courts differ on certain specifics, including the nature of the assent
necessary to plead an account stated claim. To reiterate, Delaware state courts have
defined the requirements of an account stated as follows: “(1) an account existed
between the parties; (2) the defendant stated or admitted to owing a specific sum on
the account to the plaintiff; and (3) the defendant made this admission after the
original account or debt was created.”86 Some other courts suggest that express
86
Sparebank 1 SR-Bank ASA, 2019 WL 6033950, at *6 (quoting Citibank (S.D.) N.A., 2012 WL
592873, at *2 (citing Chrysler Corp., 426 A.2d at 849 (internal quotations omitted))).
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assent is not always necessary—namely, “the failure to object to an invoice within a
reasonable time can constitute the assent necessary for estoppel by account stated.”87
Simplus insists Trimble’s failure to object to its invoices within a reasonable
time is “sufficient to plead assent or agreement to a past debt, and therefore
Trimble’s motion to dismiss the account stated claim should be denied.”88
Trimble counters that Delaware authority is devoid of this implied assent
principle for account stated claims, and that Simplus’s reliance on CP Printing, a
federal district court case, is misplaced because that case did not involve an actual
account stated claim89—or, it appears, application of Delaware law.
Just so. Delaware case law does not support allowance of Simplus’s implied
assent postulate at all, much less in these circumstances.
The only Delaware case that suggests silent assent might be sufficient for an
account stated claim is Baliezewski v. Putzcus. In that case, the Court noted that
“[a]n account stated . . . exists where the accounts between two parties have been
examined and a balance is found in favor of one of the parties, and the party against
whom the balance is found either expressly or impliedly agreed to pay such balance
found to be due.”90 But Baliezewski’s thumbnail sketch of an account stated claim
87
CP Printing Ltd., 2021 WL 212690, at *1.
88
Simplus’s Answering Br. at 5.
89
Trimble’s Reply Br. at 4-5; see also CP Printing Ltd., 2021 WL 212690, at *1.
90
Baliezewski, 132 A. at 218 (emphasis added).
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seems a bit too hastily and ill-drawn. Of particular note, Baliezewski cites to no
authority to support its implied-agreement proposition. Nor did Baliezewski actually
adjudicate the merits of an account stated claim. So, it is unsurprising that not one
subsequent Delaware state court case addressing account stated claims cites
Baliezewski. So the Court looks to those more recent Delaware cases that have
adjudicated account stated claims.
In Sparebank 1 SR-Bank ASA v. Wilhelm Maass GBMH, where unpaid
invoices were at issue,91 the plaintiff insisted “that an account existed between the
parties based on an express or implied agreement that [defendant] would pay for
[specified orders of steel].”92 This Court explained dismissal was appropriate for the
account stated claim because the complaint “makes no allegations that [defendant]
stated or admitted to owing a specific sum,” and dismissed the account stated
claim.93 The same occurred in Citibank (South Dakota) N.A. v. Santiago, where the
Court of Common Pleas dismissed an account stated claim because the complaint
contained no factual allegations that the defendant stated or admitted to owing a
specific sum.94
In Chrysler Corp. v. Airtemp Corp., this Court, when discussing an account
91
Sparebank-1 SR-Bank ASA, 2019 WL 6033950, at *1.
92
Id. at *7.
93
Id.
94
Citibank (S.D) N.A., 2012 WL 592873, at *2.
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stated claim, turned to Woolley: “No recovery can be had under an account stated,
unless there was an account agreed upon between the parties, by which the person
said to be charged, stated, or admitted a certain sum to be due and owing.”95
Woolley, an authority oft-cited when explaining such arcana of Delaware law, says
nothing to suggest that silent or implied assent is sufficient for an account stated
claim.96
Simplus turns to one federal district court case, CP Printing, that does suggest
that in certain commercial contexts the failure to object to invoices within a
reasonable time might constitute the assent necessary for estoppel by account
stated.97 But, that case actually contained three different counts: breach-of-contract,
quantum meruit, and unjust enrichment—not an account stated claim.98 The account
stated was addressed only because the plaintiff raised it in its briefing.99 And the
federal trial court’s succinct fact-bereft order denying summary judgment says
nothing of Delaware law.100
Those courts that do recognize implied assent as sufficient tend to clearly say
95
Chrysler Corp., 426 A.2d at 848 (quoting 2 Woolley on Delaware Practice § 1460 (emphasis
added)).
96
See 2 Woolley on Delaware Practice § 1460.
97
CP Printing Ltd., 2021 WL 212690, at *1.
98
See id.99
Id.100
See generally id.-20-
so when limning the elements of an account stated.101 Yet, other than Baliezewski’s
allusion to such, Delaware law is devoid of such language.
Why? Because Delaware law requires an express agreement to the incurred
debt between the parties for an account stated claim to survive and prevail. In turn,
to have any chance of withstanding a motion to dismiss in this Court, one bringing
an account stated claim would have to establish, at the very least, that the purported
account debtor expressly agreed to pay the certain sum at issue.102 Failure to object
to contract-borne invoices “within a reasonable time” isn’t enough.
Here, Simplus relies wholly on the implied assent principle103 and—on that
failure alone—falls short in its pleading of facts sufficient for any viable account
stated claim here. The Complaint contains no facts alleging Trimble expressly stated
or admitted to owing a specific sum on an account, or that Trimble made such an
admission after the original debt (i.e., the invoices) was created.104 Accordingly,
101
See, e.g., David Rovinsky LLC v. Peter Marco, LLC, 2020 WL 5645792, at *11 (C.D. Cal.
Sept. 21, 2020) (“To state a claim for account stated, a plaintiff must plead: ‘(1) previous
transactions between the parties establishing the relationship of debtor and creditor; (2) an
agreement between the parties, express or implied, on the amount due . . .; [and] (3) a promise by
the debtor, express or implied, to pay the amount due.’”) (emphases added) (quoting Zinn v. Fred
R. Bright Co., 76 Cal. Rptr. 663, 665-66 (Cal. Ct. App. 1969)).
102
See 2 Woolley on Delaware Practice § 1460 (“No recovery can be had under an account stated,
unless there is evidence that there was an account stated between the parties, in which the person
said to be charged, stated, or admitted a certain sum to be due and owing from him to the other.”).
103
See Simplus’s Answering Br. at 4-8.
104
See generally Compl. Simplus stated only that “Trimble never made timely objection to the
particular invoices as billed and/or account stated, never disputed the amount of any invoice, and
did not timely dispute its requirement to pay any particular invoice.” Id. ¶ 43.
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Simplus has failed to plead facts sufficient to support an account stated claim here,
and Trimble’s motion to dismiss for failure to state a claim must be granted for that
reason. But even if the pleaded facts somehow aligned to a reasonably conceivable
account stated claim, the Court still would be wary of allowing such to stand next to
a well-pleaded breach-of-contract count.
2. The Account Stated Claim is Impermissibly Duplicative.
No doubt, Delaware’s trial courts have shown growing antipathy toward both
bootstrapped105 and needlessly duplicative106 claims in what are otherwise
105
See, e.g., Surf’s Up Legacy Partners, LLC v. Virgin Fest, LLC, 2021 WL 117036, at *16 (Del.
Super. Ct. Jan. 13, 2021) (quoting Swipe Acquisition Corp. v. Krauss, 2020 WL 5015863, at *11
(Del. Ch. Aug. 25, 2020)) (“[A] contracting party may not bootstrap a breach of contract claim
into a fraud claim merely by adding [words of fraud] or alleging that the contracting parties never
intended to perform.”); EZLinks Golf, LLC v. PCMS Datafit, Inc., 2017 WL 1312209, at *5 (Del.
Super. Ct. Mar. 13, 2017) (quoting Narrowstep, Inc. v. Onstream Media Corp., 2010 WL 5422405,
at *15 (Del. Ch. Dec. 22, 2010)) (same).
106
See, e.g., Lehman Brothers Holdings, Inc. v. Kee, 268 A.3d 178, 184, 198 (Del. 2021)
(affirming this Court’s dismissal of a declaratory judgment claim because it was “completely
duplicative” of the complaint’s affirmative contract-based counts); Intermec IP Corp v.
TransCore, LP, 2021 WL 3620435, at *17 (Del. Super. Ct. Aug. 16, 2021) (quoting Envolve
Pharmacy Sols., Inc. v. Rite Aid Headquarters Corp., 2021 WL 140919, at *10 (Del. Super. Ct.
Jan. 15, 2021) (“Under Delaware law . . . ‘[i]f recovery is possible under the contract,’ then the
contract controls and a duplicative unjust enrichment claim will be dismissed . . .”)); Tygon Peak
Cap. Mgmt., LLC v. Mobile Invs. Investco, LLC, 2022 WL 34688, at *15 (Del. Ch. Jan. 4, 2022)
(“The allegations supporting Count I’s breach of contract claim are substantially duplicated in
Count II’s unjust enrichment claim, and both stem from the same underlying facts. Such
duplicative claims cannot stand.” (internal citations omitted)); Humanigen, Inc. v. Savant
Neglected Diseases, LLC, 2021 WL 4344172, at *10 (Del. Super. Ct. Sept. 23, 2021) (finding an
implied covenant claim duplicative of a breach-of-contract claim); see also Murphy v. Pentwater
Cap. Mgmt. LP, 2019 WL 3545850, at *4 (Del. Super. Ct. July 24, 2019) (noting that “when there
is an enforceable contract between the parties, quantum meruit recovery is inapplicable.”); Schuss
v. Penfield Partners, L.P., 2008 WL 2433842, at *10 (Del. Ch. June 13, 2008) (citing Gale v.
Bershad, 1998 WL 118022, at *5 (Del. Ch. Mar. 4, 1998)) (comparing the dismissal of a
duplicative breach of fiduciary duty claim and a breach-of-contract claim in Gale, which claims
were substantially identical and “superfluous,” with a breach of fiduciary duty claim and breach-
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straightforward breach-of-contract cases. Sure, there is some utility and real need
for pleading in the alternative under the right circumstances—for instance, where
the complaining party expresses some palpable doubt as to a written contract’s
validity or enforceability. Where so, that need should be easily discernable in the
complaint. Where not, the Court might rightly dismiss as completely duplicative or
otherwise needless a pendant claim in favor of the well-pleaded breach-of-contract
count.107 Doing so—as explained further below—keeps fidelity to Delaware’s pro-
contractarian ethos.
Trimble contends the account stated claim is “entirely duplicative” of
Simplus’s breach-of-contract claim.108 It is.
Simplus grounds both its breach-of-contract claim and its account stated claim
on Trimble’s alleged breach of the MSA and SOWs for failure to pay invoices.109
Put simply, both counts are based on precisely the same facts and focus precisely on
the same alleged failure to pay invoices—which failure is expressly governed by the
of-contract claim in Schuss, which were not duplicative because, though the claims shared a
common nucleus of operative facts, the claims each “depend[ed] on additional facts as well”).
107
See e.g. Bakerman v. Sidney Frank Importing Co., Inc., 2008 WL 3927242, at *18 (Del. Ch.
Oct. 10, 2008) (“[C]laims of unjust enrichment may survive a motion to dismiss when the validity
of the contract is in doubt or uncertain. When the complaint alleges an express, enforceable
contract that controls the parties’ relationship, however, a claim for unjust enrichment will be
dismissed.”).
108
Trimble’s Reply Br. at 6.
109
See generally Compl.
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MSA and SOWs.110 And there is nothing in Trimble’s pleadings that suggests any
doubt as to the validity or enforceability of the express contract that controls its
relationship with Simplus. So, the account stated claim is subject to dismissal as
impermissibly duplicative of the breach-of-contract claim because the claims are
based completely on the same facts.
Simplus also pleads the same damages for both counts. The breach-of-
contract claim takes aim at the unpaid invoices. And citing just those, Simplus
complains it “has suffered damages in an amount to be determined at trial, but
believed to be not less than $2,132,348.98, plus interest and costs of collection.”111
The account stated claim also takes aim at the unpaid invoices—“Trimble failed to
pay Simplus the total amount due of $2,132,348.98 on outstanding invoices.”112
And, as a result, says Simplus, it “has suffered damages in an amount to be
determined at trial, but believed to be not less than $2,132,348.98, plus interest and
costs of collection.”113
110
See id. ¶ 8 (“The MSA set forth the general terms by which Simplus would provide technology
consulting services to Trimble, including pursuant to certain [SOWs].”); Id. ¶ 31 (“The SOWs
provide for Simplus to send invoices to Trimble, and that Trimble is required to notify Simplus
within forty-five days of any dispute (MSA § 5.1).”); see also id. ¶ 42 (stating as the basis for the
account stated claim that “Trimble failed to pay Simplus the total amount due . . . on outstanding
invoices”); Id. ¶ 38 (stating as a basis for the breach-of-contract claim that “Trimble breached the
MSA and the SOWs by failing to pay Simplus [the amount due on the invoices], despite due
demand”).
111
Compl. ¶ 39.
112
Id. ¶ 42.
113
Id. ¶ 44.
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When as here such a pendant count does no more than reiterate the facts
alleged114 or damages sought115 via the well-pleaded primary breach-of-contract
count, that claim will be dismissed as impermissibly duplicative or worse—as with
an account stated claim like that brought here—antagonistic to the parties’ written
agreement.
3. An Account Stated Claim Can’t Be Used to Purloin New Contract Rights.
The foregoing reveals a more fundamental concern with Simplus’s account
stated claim. During argument, Simplus posited that its account stated claim would
allow it to recover damages without “hav[ing] to prove all the elements of a breach
of contract”—in other words, Simplus believes it could recover with no regard or
reference to performance, breach, or the “nitty-gritty” of the parties’ contractual
114
See Intermec IP Corp., 2021 WL 3620435, at *18-20 (where the implied covenant claim’s
facts were the same as the express breach-of-contract claim’s, the breach of implied covenant claim
was impermissibly duplicative and dismissed); see also Bos. Sci. Corp. v. N.Y. Ctr. for Specialty
Surgery, 2015 WL 13227994, at *3 (E.D.N.Y. Aug. 31, 2015) (“[W]here a claim for an account
stated arises out of events already the subject of a valid enforceable contract, recovery is
precluded.”); Locus Techs. v. Honeywell Int’l, Inc., 2021 WL 1651388, at *11 (S.D.N.Y. Apr. 7,
2021) (dismissing an account stated claim because it “is duplicative of [the] breach of contract
claim”).
115
See EZLinks Golf, LLC, 2017 WL 1312209, at *6 (“Failure to plead separate damages is an
independent ground for dismissal.”); ITW Glob. Invs. Inc. v. Am. Indus. Partners Cap. Fund IV,
L.P., 2015 WL 3970908, at *5 (Del. Super. Ct. June 24, 2015) (“[D]amages allegations [for an
independent cause of action] may not simply ‘rehash’ the damages allegedly caused by [a] breach
of contract.” (internal citations omitted)); see also Locus Techs. v. Honeywell Int’l, Inc., 2021 WL
1651388, at *11 (S.D.N.Y. Apr. 7, 2021) (where the subject contract allowed recovery of nothing
more than the amounts of the unpaid invoices, “the sought-after remedies in the breach of contract
and account stated claims [are] duplicative . . .”).
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arrangement.116 Given this explanation, it is no wonder the account stated claim
duplicates both the substance and damages of the breach-of-contract claim. In
essence, the account stated claim was intended as a short-cut for obtaining contract
damages.
Delaware law will not tolerate use of an account stated claim in this manner.
“[W]ith very limited exceptions, our courts will enforce the contractual scheme that
the parties have arrived at through their own self-ordering, both in recognition of a
right to self-order and to promote certainty of obligations and benefits.”117
“Upholding freedom of contract is a fundamental policy of this State.”118
Delaware’s contractarian principles have guided its courts in developing a nuanced
jurisprudence for the analysis and enforcement of contracts.
A well-settled and basic tenet of Delaware contract law is that “a party may
not come to the court to enforce a contractual right it did not obtain for itself at the
negotiating table.”119 Neither will courts “rewrite contracts to read in terms that
[parties] could have, but did not, obtain at the bargaining table.”120 Indeed, our
116
Hearing Tr. at 20.
117
Ascension Ins. Holdings, LLC v. Underwood, 2015 WL 356002, at *4 (Del. Ch. Jan. 28, 2015)
(internal citations omitted).
118
Id. (internal citations omitted).
119
GRT, Inc. v. Marathon GTF Tech., Ltd., 2012 WL 2356489, at *7 (Del. Ch. June 21, 2012)
(citing Allied Cap. Corp. v. GC–Sun Holdings, L.P., 910 A.2d 1020, 1030 (Del. Ch. 2006)).
120
Id. at *6 (citing Nemec v. Shrader, 991 A.2d 1120, 1126 (Del. 2010)).
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courts are “most chary about implying a contractual protection when the contract
could easily have been drafted to expressly provide for it.”121 “This is because a
court’s role in interpreting contracts is to effectuate the parties’ intent. For a court
to read into an agreement a contract term that was [not included] . . . would be to
create new contract rights, liabilities and duties to which the parties had not assented
in contravention of that settled role.”122
These principles are dutifully adhered to and hold especially true for
sophisticated parties engaged in arms-length negotiations.123 Our law “presumes
parties are bound by the language of the agreement they negotiated” and “respect[s]
the ability of sophisticated businesses . . . to make their own judgments about the
risk they should bear”124 and the protections they should incorporate.
This Court regularly sees language in the service agreement contracts forged
by sophisticated parties that details the specifics of their invoicing, payment,
121
Allied Cap. Corp., 910 A.2d at 1035 (citing Harris Trust and Savings Bank v. E–II Holdings,
Inc., 926 F.2d 636, 644 (7th Cir. 1991)).
122
GRT, Inc., 2012 WL 2356489, at *7 (citing Lorillard Tobacco Co. v. Am. Legacy Found., 903
A.2d 728, 739 (Del. 2006); Allied Capital Corp., 910 A.2d at 1030; Rhone–Poulenc Basic Chems.
Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992)) (internal quotations omitted).
123
See W. Willow-Bay Ct., LLC v. Robino-Bay Ct. Plaza, LLC, 2007 WL 3317551, at *9 (Del.
Ch. Nov. 2, 2007) (“The presumption that the parties are bound by the language of the agreement
they negotiated applies with even greater force when the parties are sophisticated entities that have
engaged in arms-length negotiations.”), aff’d, 985 A.2d 391 (Del. 2009).
124
Julius v. Accurus Aerospace Corp., 2019 WL 5681610, at *9 (Del. Ch. Oct. 31, 2019), aff’d,
241 A.3d 220 (Del. 2020) (internal citations and quotations omitted).
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“deemed approved,” and invoice resolution process.125 Simplus’s and Trimble’s
MSA has no such language. And the Court cannot allow it to be effectively added
thereto via some conjured account stated claim.
Speaking of just such a circumstance recently, one court noted “not every debt
. . . can form the basis of an account stated, particularly when it is being used as a
substitute for an action of debt upon a contract involving a contractually specified
sum, because a creditor under these circumstances is not required to resort to a new
contract to collect such a debt.”126 Yet, through the attempted account stated claim,
either a “new contract” or, at very least, newly engrafted contract rights are precisely
what Simplus attempts to impose in the parties’ already self-ordered relationship.
As another court has explained, that cannot happen: “a claim for an account stated
may not be utilized simply as another means to attempt to collect under a disputed
125
For instance, in Parexel International (IRL) Ltd. v. Xynomic Pharm., Inc., the parties’ Master
Services Agreement (“MSA”), through which Parexel provided research services for a clinical trial
prescribed invoicing procedures as follows:
(1) the undisputed portions of any invoice for services performed under the MSA
and any work order were due thirty (30) days from receipt; (2) any disputed
invoiced items had to be raised, with notice to Parexel in writing with specificity,
within ten (10) business days from the invoice date; (3) any invoiced items that
were not disputed by Xynomic within ten (10) business days of the invoice date
were deemed approved; and (4) interest was to be paid on any unpaid invoice at the
rate of one percent (1%) until such invoice is paid in full.
2021 WL 3074343, at *1-2 (Del. Super. Ct. Jul. 21, 2021).
126
Veritas Techs. LLC v. Cushman & Wakefield, Inc., 2022 WL 222527, at *8 (N.D. Cal. Jan. 25,
2022) (cleaned up).
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contract.”127
If Simplus seeks to recover damages for unpaid invoices under its contract
with Trimble, then it’s just going to have get into the “nitty-gritty” of its performance
thereunder, Trimble’s alleged breach, and the possible claims and defenses afforded
its adversary under Delaware contract law. There is no shortcut to judgment via an
account stated route here.
V. CONCLUSION
Among other failures, Simplus has wholly relied on an implied assent
principle to devise its account stated claim. In turn, it has failed to plead a reasonably
conceivable account stated claim under Delaware law. What’s more, Simplus’s
account stated claim is entirely duplicative of its breach-of-contract claim—both in
the facts pleaded to establish each and in the damages sought thereunder. Finally,
an account stated claim may not be used as a vehicle to recover contract damages
without proving a breach-of-contract claim. This is a situation where redundancy
should not only be avoided, but is intolerable.
Accordingly, Trimble’s Motion to Dismiss Count II is GRANTED.
IT IS SO ORDERED.
_________________________
Paul R. Wallace, Judge
cc: All Counsel via File and Serve
127
Martin H. Bauman Assoc. v. H & M Int’l Transp., 567 N.Y.S.2d 404, 409 (N.Y. App. Div.
1991).
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