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Infobridge, LLC v. Chimani, Inc.

Superior Court of Maine, Cumberland

March 6, 2017

INFOBRIDGE, LLC, Plaintiff
v.
CHIMANI, INC., Defendant

          ORDER ON MOTIONS

          Nancy Mills, Justice

         Before the court are (1) plaintiff InfoBridge, LLC's motion for attachment and trustee process, (2) defendant Chimani, Inc's motion to compel arbitration and to dismiss plaintiffs complaint, and (3) defendant's motion to seal. For the following reasons, plaintiff's motion for attachment and trustee process is granted, defendant's motion to compel arbitration and to dismiss is denied, and defendant's motion to seal is granted.

         BACKGROUND

         Plaintiff filed a complaint on November 4, 2016. In the complaint, plaintiff alleged: count I, breach of contract; count II, quantum meruit; and count III, unjust enrichment. Plaintiff filed a motion for attachment and trustee process with the complaint. On November 28, 2016, defendant filed an opposition to plaintiff's motion for attachment and trustee process and a motion to compel arbitration and dismiss the complaint. Plaintiff filed an opposition to the motion to compel arbitration and to dismiss on December 19, 2016. On December 29, 2016, defendant filed a reply to plaintiff's opposition to the motion to compel arbitration and to dismiss and a motion to seal. Plaintiff filed an opposition to the motion to seal on January 11, 2017. Defendant filed a reply to plaintiff's opposition to the motion to seal on January 17, 2017.

         DISCUSSION

         1. Motion for Attachment and Trustee Process

         a. Standard of Review

         Attachment and trustee process may be made if the attachment is for a specified amount and the court finds that it is more likely than not that the plaintiff will recover judgment in an amount equal to or greater than the aggregate sum of the attachment. Plourde v. Plourde, 678 A.2d 1032, 1034-35 (Me. 1996); see M.R. Civ. P. 4A(c), 4B(c). Under this standard, the moving party must show "a greater than 50% chance of prevailing." Richardson v. McConologue, 672 A.2d 599, 600 (Me. 1996) (citation omitted). "In making this determination, the court assesses the merits of the complaint and the weight and credibility of the supporting affidavits." Porrazzo v. Karofsky, 1998 ME 182, ¶ 7, 714 A.2d 826.

         b. Analysis

         Plaintiff seeks an order of attachment and trustee process against defendant's real and personal property in the amount of $149, 075.77. (Mot. Attach. 1.) To prevail on its breach of contract claim, plaintiff must establish that: (1) a legally binding contract existed between the parties, (2) defendant breached a material term of that contract, and (3) defendant's breach caused plaintiff to suffer damages. Tobin v. Barter. 2014 ME 51. ¶¶ 9-10, 89 A.3d 1088.

         Plaintiff supports its motion with the affidavit of Shaun Meredith. Mr. Meredith is plaintiff's principal and also served as defendant's Chief Technology Officer from 2013 until September 22, 2016. (Meredith Aff. ¶¶ 1, 13, 15.) Between April 1, 2015 and September 22, 2016, Mr. Meredith also served on defendant's board of directors. (Meredith Aff. ¶ 15.)

         Plaintiff has produced a contract signed by defendant's president and plaintiff's principal. (Meredith Aff. ¶¶ 1, 5-6; Ex. A.) The parties entered into the contract on February 11, 2010. (Meredith Aff. ¶¶ 4-6; Ex. A to Meredith Aff.) The contract provided that plaintiff would design, create, and develop for defendant an iPhone-based software application and expansion architecture for other mobile platforms (the program). (Meredith Aff. 5 7.)

         The contract provides in part that defendant will pay to plaintiff: "Fourteen and one-half percent (14.5%) of the Net Revenue from each sale and download of the Program up to a total amount of $150, 000 in the aggregate from all revenue sources derived from the Program including, but not limited to: sales, downloads, advertising fees, and volume purchasing agreements." (Meredith Aff. ¶ 9; Ex. A § 2(a)(iv).) The contract further provides that payment will be made "on a quarterly basis not later than one (1) month after the end of each calendar quarter." (Meredith Aff. J 10; Ex. A § 2(c).)

         Plaintiff performed its obligations under the contract. (Meredith Aff. ¶ 11.) Defendant paid plaintiff $384.57 in September 2010 and $539.66 in January 2011. (Meredith Aff. J 12.) By letter dated September 27, 2016, plaintiff informed defendant that defendant was in breach of the contract and demanded payment of $149, 075.77. (Meredith Aff. J 30; Ex. D to Aff.) By letter dated October 2, ...


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