Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Virtusa Corp. v. Seniorlink Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

August 15, 2018

VIRTUSA CORPORATION
v.
SENIORLINK INCORPORATED

          MEMORANDUM OF DECISION AND ORDER ON VIRTUSA CORPRATION’S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS

          Janet L. Sanders, Justice of the Superior Court

          This case arises from the breakdown of a contractual relationship between Virtusa Corporation (Virtusa) and Seniorlink Incorporated (Seniorlink). Virtusa instituted suit after Seniorlink failed to pay for work Virtusa performed in connection with certain software applications. Claiming that the work was defective, Seniorlink counterclaimed and sought its own damages. In a motion that is only partially dispositive, Virtusa now asks Court to dismiss two counts of the Counterclaim: Count III alleging intentional misrepresentation and Count IV alleging negligent misrepresentation. This Court concludes that the Motion is ALLOWED as to Count IV but DENIED as to Count III.

         The Motion is brought pursuant to Rule 12(c), Mass.R.Civ.P. The standard that applies, however, is the same standard that applies to a motion to dismiss under Rule 12(b)(6), That is, the Counterclaim must contain factual allegations that are sufficient to "raise a right of relief above the speculative level ..." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

         The allegations must plausibly suggest-not merely be consistent with-an entitlement to relief. Id.

         Virtusa makes essentially two argument in support of its motion. First, it asserts that the negligent misrepresentation claim is barred as a matter of law by a disclaimer of warranty clause and other provisions that appear in the contract between the parties. Second, it contends that the Counterclaim does not allege sufficient facts to satisfy show that Virtusa made statements that it knew were false at the time that they were made-a necessary element of fraud. This Court agrees that the negligent misrepresentation claim must be dismissed. Dismissal of the fraud count at the pleadings stage, however, is not only premature but also would do nothing to narrow the Counterclaim, which includes among other things a count alleging a violation of Chapter 93A.

         With regard to the claim for negligent misrepresentation, Virtusa relies on certain provisions of the Master Services Agreement (MSA), which outlines the rights and responsibilities of the parties. See Exhibit 1, attached to Complaint. Section 6.1 of the MSA, entitled "Disclaimer of Warranty," states:

VIRTUSA MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER ORAL, EXPRESSED, IMPLIED, OR STATUTORY, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH REGARD TO THE SERVICES, THE DELIVERABLES, ANY SOFTWARE AND ANY OTHER MATERIALS OR ITEMS PROVIDED HEREUNDER.

(Capitals in original.) Section 10.3 of the MSA is an integration clause which states:

Unless the parties otherwise agree, this Agreement and the Work Order(s) attached hereto constitute the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersede all previous agreements and oral discussion and understandings between the parties ...

         Although it is well settled that a party cannot rely upon such provisions to protect it against fraud, see e.g., Bates v. Southgate, 308 Mass. 170, 182-83 (1941), they are enforceable so as to bar a claim based on negligence. That is, in the absence of allegations of intentional misconduct or evidence that suggests the integrity of the bargaining process has been tainted, a contracting party is entitled to enforcement of an unambiguous integration or disclaimer clause when that party is faced with a claim of negligent misrepresentation. See Sound Techniques, Inc. v. Hoffman, 50 Mass.App.Ct. 425, 433-34 (2000) (claim for negligent misrepresentation was barred as matter of law by merger clause). The disclaimer provisions present in the MSA are unambiguous and there is no suggestion of unequal bargaining power. Accordingly, Count IV is hereby DISMISSED.

          This Court reaches a different conclusion with respect to the fraud claim, in large part because discovery is almost complete. In the course of that discovery, Seniorlink responded to a written interrogatory setting forth precisely which statements by Virtusa it regards as fraudulent: Virtusa is thus clearly on notice as to what it has to defend against so that the primary purpose of both Rule 9(b) and Rule 12(b)(6) is satisfied. Moreover, dismissal of this Count pursuant to these rules would only serve to invite a motion to amend the Counterclaim, which this Court would be hard-pressed to deny. Finally and perhaps most important, disposition of this claim at the pleadings stage will do nothing to narrow the scope of discovery (particularly since it is close to complete) or facilitate settlement.[1]

         SO ORDERED.

---------


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.