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Enterprise Information Management, Inc. v. Superletter. Com, Inc.

United States District Court, Fourth Circuit

November 7, 2013



DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for review in this breach of contract action is Defendant's motion to dismiss, or in the alternative, for summary judgment. (ECF No. 8). For the following reasons, an evidentiary hearing will be held on the issue of whether Attachment A is part of the Subcontract Agreement.

I. Background

This case arises out of a contract dispute between Plaintiffs, Enterprise Information Management, Inc. ("EIM") and Enterprise Information Management Europe Limited, Inc. ("EIM Europe Limited") with, Inc. ("SuperLetter" or "Defendant"). EIM is a Virginia corporation with its principal place of business in Arlington, Virginia. EIM Europe Limited is EIM's wholly-owned subsidiary and a United Kingdom corporation with its principal place of business also in Arlington, Virginia. EIM and its subsidiary, EIM Europe Limited, deliver information technology consulting, design, planning, and implementation services for organizations. (ECF No. 2 ¶¶ 8-9). SuperLetter, a commercial hybrid mail service that links distant locations around the globe with an overnight/next day mail service, is a Florida corporation with its principal place of business in Ormond Beach, Florida. ( Id. ¶¶ 1-3, 7).[1]

On February 28, 2012, SuperLetter entered into a Subcontract Agreement with EIM Europe Limited "to develop an application and perform services as directed in the relevant Statement(s) of Work (SOW) in support of Defendant's Prime Contract with the UK Ministry of Defense - British Forces Post Office ("BFPO" [or "Authority"])." ( Id. ¶ 10).[2] This Prime Contract between SuperLetter and BFPO was designed to allow SuperLetter's mail services to reach British military personnel serving in locations around the globe. The Subcontract Agreement between EIM Europe Limited and SuperLetter, designed to provide services to support the Prime Contract, was "accepted and agreed to" by Roy Walker, the Chief Executive Officer of SuperLetter.Com, and Chloe A. Maxent, Vice President, Global Business Support of EIM Inc. (ECF No. 2-1, at 12).[3] Ms. Maxent signed the contract on behalf of EIM, but the Subcontract Agreement identifies "EIM Europe Limited" and "SuperLetter" as the only parties to the contract. The Subcontract Agreement provides that it shall last for "a period of 8 years, 7 months and 22 days, i.e., until 31st March 2020 subject to [BFPO's] right of earlier termination under other Conditions of Contract." ( Id., at 3).

The following terms in the Subcontract Agreement are also relevant here. Section 1.6 provides that "General terms and conditions provisions of the UK Ministry of Defence are attached as exhibit: CTT DOC 24 SCHED 2 TERMS AND CONDITIONS. Compliance with these terms and conditions is required by the Subcontractor." ( Id. at 4). This referenced document, which is Attachment A, includes "general and special" contract terms and conditions from Defendant's Prime Contract with BFPO. Specifically, it includes a table of contents enumerating multiple DEFCONS, which is a term used for UK Ministry of Defence Conditions.[4] DEFCON 529 includes a forum-selection clause and choice-of-law provision. It states:

1. The Contract shall be considered as a contract made in England and subject to English Law.
2. Subject to DEFCON 530 and without prejudice to the dispute resolution process set out in that Condition, each party hereby irrevocably submits and agrees to the exclusive jurisdiction of the Courts of England to resolve, and the laws of England to govern, any actions, proceedings, controversy or claim of whatever nature arising out of or relating to the Contract or breach thereof.
3. Other jurisdictions may apply solely for the purpose of giving effect to this Condition and for the enforcement of any judgment, order or award given under English law.

(ECF No. 8-5). DEFCON 530 includes an arbitration provision and states as follows:

1. The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Contract through negotiations between the respective representatives of the parties having authority to settle the matter, which attempts may include the use of any Alternative Dispute Resolution (ADR) procedure on which the parties may agree.
2. In the event that the dispute or claim is not resolved by negotiation, or where the parties have agreed to use an ADR procedure, by the use of such procedure, the dispute shall... be referred to arbitration.

(ECF No. 8-6).

This dispute arose out of Defendant's early termination of the contract because Plaintiffs closed their London office and continued operations in the United States. ( See ECF No. 2 ¶¶ 15-17). Specifically, Plaintiffs allege that "[EIM Europe Limited] closed its London office... on January 31, 2013, " (ECF No. 2 ¶ 15), but continued to perform its obligations under the contract. Plaintiffs assert that "Defendant wrongfully terminated the Contract citing that Plaintiff [EIM Europe Limited] was in breach of contract for closing its London office." (Id. ¶ 17). Section 11.1 of the Subcontract Agreement provides that "Subcontractor will obtain the prior agreement of Contractor and the Authority to store or process such personal data at sites ...

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