United States District Court, D. Massachusetts
H. HENNESSY, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Defendant Asigra, Inc.'s
(“Asigra”) Motion for Judgment on the Pleadings.
(Docket #12). Plaintiff Atlantis Services, Inc.
(“Atlantis”) has filed a response, (Docket #17),
and a hearing on the motion was held on August 4, 2017,
(Docket #19). Also before the court is Asigra's Motion to
Strike the Affidavit of Paul Pathiakis, (Docket #23), to
which Atlantis filed a response, (Docket #24). Both matters
are now ripe for adjudication. For the reasons that follow,
Asigra's Motion to Strike (Docket #23) is ALLOWED, and
Asigra's Motion for Judgment on the Pleadings (Docket
#12) is ALLOWED IN PART AND DENIED IN PART. Judgment shall be
entered in favor of Asigra on count VII of the complaint.
April 15, 2014, plaintiff Atlantis Services, Inc.
(“Atlantis”), a Massachusetts corporation based
in Uxbridge, Massachusetts and defendant, Asigra, Inc.
(“Asigra”), a Canadian corporation located in
Toronto, Ontario, entered into an agreement whereby Atlantis
would provide computer software services to Asigra. (Docket
#1 at ¶¶ 3-5). In exchange, Asigra agreed to pay
Atlantis $125.00 per work hour. (Id. at ¶ 6).
The scope of services to be provided appear to have been set
out orally and is captured in a document entitled Asigra
Large System Project Deliverable, which details a
conversation between the parties outlining the specifications
of a software product to be designed by Atlantis.
(Id. at ¶ 5, Exhibit A).
completion was initially anticipated to take 2000 hours,
referred to as “one work year.” (Docket #1 at
¶ 6). However, this time frame was continuously
shortened by Asigra throughout the project lifetime.
(Id. at ¶ 7). During a May 8, 2014 phone call,
Aram Farajun, CEO and principal owner of Asigra, asked Paul
Pathiakis, the CEO of Atlantis, whether Atlantis could
accelerate the development time. (Id. at ¶ 8,
Docket #22 at ¶ 4). In response, Atlantis told Asigra
that the only way to complete the project on an accelerated
schedule would be to use code from Atlantis' own
appliance product (the “Appliance
Code”). (Docket #1 at ¶ 8). In what it
contends in its motion papers is an additional contract,
during this phone call, Atlantis granted Asigra a limited
right-to-use its Appliance Code and agreed to setup a call
center for product support provided that Asigra pay all
invoices and agree to pay Atlantis to service the product.
(Id. at ¶¶ 9-11; Docket #17 at 1).
7, 2014, Atlantis completed the project using its code and
Asigra “took delivery and accepted the project as
conforming.” (Docket #1 at ¶¶ 13, 15). On
June 20, 2014, Atlantis sent Asigra its final invoice
itemizing its fees and requesting payment. (Id. at
¶¶ 16-17). In discussions regarding payment, Asigra
acknowledged the accuracy of the debt and agreed to pay the
invoice provided Atlantis assign Asigra the rights to its
code. (Id. at ¶¶ 17-18). Atlantis refused
to assign its rights to the code, limited or otherwise,
absent Asigra's performance of the purported second
agreement. (Docket #1 at ¶ 19).
11, 2016, Atlantis filed suit against Asigra alleging claims
of breach of contract (count I), misappropriation of
intellectual property (count II), trade secret
misappropriation (count III), common law misappropriation
(count IV), unfair and deceptive practices (count V), unjust
enrichment (count VI), and copyright infringement (count
VII). (Docket #1). Atlantis asserts that Asigra has copied
substantial portions of the Appliance Code program,
distributed works containing material copied from the
Appliance Code, and created derivative works based on the
Appliance Code. (Id. at ¶ 21). On November 18,
2016, Asigra moved for judgment on the pleadings on all
counts other than count I. (Docket #12).
STANDARD OF REVIEW
to Federal Rule of Civil Procedure 12(c), a party may move
for judgment on the pleadings “[a]fter the pleadings
are closed - but early enough not to delay trial.” A
court reviews motions for judgment on the pleadings under a
standard that is essentially the same as that for a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6),
except that “[a] Rule 12(c) motion, unlike a Rule
12(b)(6) motion, implicates the pleadings as a whole.”
Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54-55
(1st Cir. 2006). Facts contained in the pleadings are viewed
in the light most favorable to the nonmovant, and all
reasonable inferences are drawn in its favor. Zipperer v.
Raytheon Co., 493 F.3d 50, 53 (1st Cir. 2007). In
reviewing a motion under Rule 12(c), the court may consider
“documents the authenticity of which are not disputed
by the parties; documents central to the plaintiff's
claim; and documents sufficiently referred to in the
complaint. Curran v. Cousins, 509 F.3d 36, 44 (1st
Cir. 2007) (quoting Watterson v. Page, 987 F.2d 1, 3
(1st Cir. 1993)) (alterations omitted). “Judgment on
the pleadings is proper ‘only if the uncontested and
properly considered facts conclusively establish the
movant's entitlement to a favorable judgment.'”
Zipperer, 493 F.3d at 53 (quoting
Aponte-Torres, 445 F.3d at 54).
Motion to Strike
August 4, 2017, the court held a hearing on Asigra's
Motion for Judgment on the Pleadings. (Docket #19). At the
hearing, the court established a brief chronology of the
parties' relationship. (Docket #20 at 3-9). Missing from
this chronology was the exact date of the telephone
conversation between the parties during which the alleged
second contract was formed. (Id. at 5-6). Neither
party was able to provide this date at the hearing, although
it was agreed that, by necessary implication, the
conversation must have occurred prior to project's
completion date of June 7, 2014. (Id. at 8-9).
Hence, the court asked the parties to submit an affidavit or
stipulation establishing when this telephone call occurred,
and indicated that this filing would be part of the record
that the court would consider on the motion. (Id. at
August 23, 2017, Atlantis filed an affidavit by Pathiakis.
(Docket #22). In the first five paragraphs of the affidavit,
Pathiakis describes his relationship with Atlantis; details
the terms of the original contract; and states that, on May
8, 2014, when asked by Farajun if he could accelerate the
development time, he agreed to incorporate the Appliance Code
into Asigra's product. (Id. at ¶¶
1-5). Asigra does not seek to strike these statements.
(Docket #23). Nor does Asigra challenge the last two
statements in the affidavit which note that Pathiakis'
telephone service provider is T-Mobile. (Docket #22 at
¶¶ 12-13; Docket #23). Asigra does challenge the
remaining statements of the affidavit and asks that they be
stricken. (Docket #23 at 1).
statements at issue seek to describe the content of the
alleged second contract. (Docket #22 at ¶¶ 6-11).
The court never requested this information and the parties
did not seek leave, nor did the court grant it, to file
additional evidence addressing this matter. For that reason
alone, the contested portions of the affidavit are properly
stricken. The court also notes that these statements do not
conform with paragraph 10 of the complaint, in which Atlantis
alleges that “[t]he limited right to use was contingent
upon Asigra paying Atlantis' invoices and
granting Atlantis all the servicing revenue of the new
products.” (Docket #1 at ¶ 9) (emphasis added). In
his affidavit, Pathiakis states that “the consideration
for the second contract was to be a Master Service Agreement
for servicing the System for Asigra” and that
“[p]ayment for the initial work for hire contract was
separate and distinct from the income we were expecting to
derive under the Master Service Agreement.” (Docket #22
at ¶¶ 7, 11). Leave has not been granted to amend
the complaint, and the court specifically ...