ORDER ON MOTIONS
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.
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.
Motion for Attachment and Trustee Process
Standard of Review
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.
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
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.)
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.)
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).)
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, ...