Geodesic Consulting LLC v. BBVA USA Bancshares Inc
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/30/2017. (PSM)
2017 Oct-30 PM 01:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
Memorandum of Opinion
Plaintiff Geodesic Consulting, LLC (“Geodesic”) brings this action under
the Court’s diversity jurisdiction and alleges various state law claims against
Defendant Compass Bank (“Compass”). Before the Court is Compass’ Fed. R.
Civ. P. 56 renewed motion for summary judgment (doc. 84) on all claims asserted
in Geodesic’s second amended complaint (doc. 76). Also pending is Compass’
motion to strike. (Doc. 92.) The issues here have been fully briefed by the parties
and are now ripe for review. For the reasons stated below, Defendant’s renewed
motion for summary judgment is due to be denied as to all claims except Count III,
and their motion to strike is due to be terminated as moot.
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Factual Background 2
Geodesic Consulting, LLC, the U.S. affiliate of a Spanish entity Geodesic
Consulting, SL, an IT consulting service provider, had agreements for provision of
IT services with Compass Bank. Geodesic was required to accomplish the
relocation of a key employee from Spain to Birmingham, Alabama for work on a
project. The suit arises out of disputes surrounding that employee’s relocation as
well as the agreements between the parties and payment for services rendered.
Compass Bank was one of a number of banks in discussions with Syncada,
LLC regarding participation in “Syncada” a global financial supply chain
processing network. In February 2013, Basava Kore (“Kore”), an IT Director at
Compass, corresponded with David Baeza-Rojano (“Rojano”), a Spanish national,
In ruling on a motion for summary judgment, this Court must “view the facts and draw
reasonable inferences in the light most favorable to the party opposing the . . . motion.” White
v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015) (quoting Scott v. Harris, 550
U.S. 372, 378 (2007)). Thus, if the parties’ versions of the facts differ with regard to a particular
issue, this Court accepts the nonmoving party’s version as true. See Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
The facts set out in this opinion are gleaned from the parties' submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the Court's own examination of
the evidentiary record. All reasonable doubts about the facts have been resolved in favor of the
nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th
Cir. 2002). These are the “facts” for summary judgment purposes only. They may not be the
actual facts. See Cox v. Adm'r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir.
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about providing consulting services for Compass on the Syncada Project. Rojano
had previously done work for Compass through one of his former employers. Kore,
on behalf of Compass, entered into discussions via telephone and email with Estella
Luna de Maria (“Luna”) about procuring her company’s services. Luna is CEO of
Geodesic. The substance of those discussions revolved around whether Geodesic
would relocate Rojano to the United States to work on the Syncada Project. In
conformance with typical consulting employment arrangements in the IT field,
Rojano was not employed by Compass—but was instead employed by Geodesic,
who would in turn contract with Compass for the IT services Rojano would provide
through Geodesic. Rojano and Geodesic entered into an employment agreement in
April of 2013 in which Geodesic agreed to pay certain expenses and provide
compensation to Rojano for his work at Compass as an employee of Geodesic.
Meanwhile, negotiations between Compass and Syncada were ongoing even
though Compass had been encountering delays in securing a contract with Syncada
since December 2012. On March 15, 2013, Kore was included as part of a series of
internal emails which disclosed news signaling that the Syncada Project would not
be going forward. The email read in pertinent part: “Syncada not providing
financials prior to signing a contract with them is a show stopper.” (Doc. 47-3, Ex.
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B-37 3.) The emails also expressed concerns over Syncada’s general lack of
profitability and funding. This news was not disclosed to Luna or Rojano.
The Syncada Project had an expected launch date of May 1, 2013. Kore and
Luna exchanged many e-mails in the months preceding the kickoff. In an e-mail
dated April 11, 2013, Kore told Luna the contract with Syncada had not yet been
signed and the “[e]xpectation [was] it could take another 2 weeks before they close
the agreement. The date has not been adjusted. 1st May is still the target for kickoff. Will update as I know more.” (Doc. 47-5, Ex. C-9.) In response, Luna
acknowledged her awareness that the contract had not yet been signed. Id. On April
18, 2013, Luna inquired as to the status of the project. Kore responded that there
was no confirmation of a signed contract, funding was not yet available, and that it
might be best to put off the date for Rojano traveling to the U.S. The email
concluded with, “Syncada contract and funding anticipated for end of next week”
which was both emphasized in bold and in a larger font. (Doc. 47-5, Ex. C-13.)
Another email exchange between Rojano and Kore seems to have indicated a
confirmed start date. On April 4, 2013, Rojano sent an email to Kore which began
with, “I’m delighted in hearing from Estella [Luna] that the kick off date is finally
confirmed as on May 1st.” (Doc. 47-5, Ex. C-11.) Kore did not respond until April
Unless otherwise noted, pinpoint citations refer to CM/ECF document stamp pagination.
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16, he stated, “Sorry David I thought I had responded. I agree. Will organize
meeting with key people in the first week and get a good understanding of the
On April 23, 2013, more emails were exchanged between Kore and Luna
regarding the status of Syncada. Luna asked Kore to keep her updated with any
relevant news from his side. Kore’s response told Luna the contract was still
unsigned; while the expectation of project cancelation was very low, the probability
of a start date of May 1 was also very low; he would not be able to sign any
agreements with Geodesic until Compass completed the contract with Syncada;
and funding would not be released until the official kick off. (Doc. 47-5, Ex. C-14.)
Kore then listed two options: “1. David to start May 1 .. orientation until official
start; 2. David to arrive 2 weeks into May.. after Syncada contract is signed.” Id.
Neither option indicated that the contract was in jeopardy. The email concluded
with a quoted portion presumably from another email stating,
I do not think that there is any significant risk that we will not be going
forward with the Syncada Project, the issue at this point is timing. We
should finalize the contract soon (hopefully this week), but the timing
may be extended . . . May 1st is possible, but probably not realistic.
The following week is probably a safer estimate, although not 100%
firm for the reasons previously detailed.
Id. (emphasis in original). At this point, Geodesic had already incurred expenses in
connection with Rojano’s upcoming relocation from Spain to the U.S.—including
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plane tickets and visas for Rojano and his family, as well as apartment and
automobile rentals. After consideration, a decision was made to relocate Rojano to
the United States so he would be in place on the projected launch date, May 1st.
Geodesic made this decision so as to not expend more resources on the relocation
than had already been expended, and out of prudence should Rojano be required
for work on the project if it kicked off on the expected date. He arrived in
Birmingham, AL, on April 30, 2013, and began work with Compass.
On May 10, 2013, Compass learned VISA was likely pulling out of the joint
venture, negotiations had come to a complete halt, and the Syncada Project would
not be going forward. Two weeks later, on May 28, 2013, Kore informed Luna via
email that negotiations had halted. The Syncada Project was cancelled;
consequently, no agreement between Geodesic and Compass was finalized
The ARP Project & the Basel III Project
After cancellation of the Syncada Project, in late May 2013, Kore offered
Geodesic the opportunity for Rojano to work on a different project known as the
ARP Project. On July 16, 2013, Compass and Geodesic entered into a Master
Services Agreement (“MSA”) and a Mutual Nondisclosure Agreement (“NDA”)
in connection with its approval as vendor on the ARP Project which was slated to
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receive funding on June 14, 2013. The MSA included a “Non-Solicitation”
During the term of this agreement and for a period of one year
following any termination of this Agreement, neither Party will
directly or indirectly through third parties solicit or hire for
employment any of the other party’s current or previous employees
(unless a period of twelve months had elapsed from the last date that
the employee was employed by the other Party). This provision will
not apply to, and will not prevent the hiring of any person responding
to, general advertisements of employment opportunities.
(Doc. 52-2 at 16.) It also included provisions requiring Compass to provide
payment to Geodesic within 45 days of services being rendered. (Doc. 47-3, Ex. B24 ¶ 8.c.) Paragraph 16 of the NSA provides as follows:
Neither party shall hire or solicit, for itself or any other person or
entity, directly or indirectly, any person who was employed or engaged
as a consultant of the other party within one (1) year of the date of this
(Doc. 52-3 at 4, ¶ 16.)
On June 7, 2013, Luna sent an email to Kore regarding payment for services
Rojano provided to Compass prior to the once anticipated kickoff of Syncada. She
concluded with, “I know you said there is no available budget to pay this effort, but
I would like you to kindly consider a way to get this work reimbursed as it was
relevant work for the project and not only occasional help.” (Doc. 47 at 279, Ex. C22.) Kore rejected this request and stated that the date to start charging for the
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hours of Rojano was June 17th. However, on September 23, 2013, a purchase order
numbered 181329 (“PO181329”) was issued by Compass for work done by Rojano
from May 1, 2013 until September 23, 2013. In response, Geodesic issued seven
invoices to Compass specifically requesting payment by wire transfer. However,
Compass tendered payment via official Compass checks which were subsequently
dishonored. After several months of repeated requests for payment, including a
follow-up trip by Luna to the U.S., and after being required to sign lost instrument
indemnity documents for Compass, Geodesic received a wire transfer from
Compass in the amount of $122,040.00 on February 4, 2014, for payment of six out
of the seven invoices. Invoice No. 6, which was issued in response to PO181329, in
the amount of $35,840.00 remains outstanding and unpaid.
On September 4, 2013, after months of work on the ARP Project with
Geodesic, Rojano informed Kore of his intent to resign from his employment with
Geodesic effective September 6, 2013, because of disagreements over expenses—
some of which were connected to family health insurance coverage. When Luna
learned of Rojano’s intentions, she flew to the U.S. for a meeting with Rojano and
Kore in which they negotiated a delay of his separation date and for Geodesic to
provide family health insurance effective October 1, 2013. As to not interrupt his
work on the ARP Project, Rojano continued working for Geodesic until November
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30, 2013, at which point he separated from his employment with Geodesic. During
the time frame before his official separation from Geodesic, Compass employees
assisted Rojano in the process of having NFQ Advisory Services U.S., LLC, an
affiliate of Nfoque Advisory Services (“Nfoque”), which is Geodesic’s competitor,
approved as a vendor in Compass’ procurement system. Compass did this after
being informed of Rojano’s intention to quit Geodesic and begin work with Nfoque
on another project for Compass called Basel III. Throughout September, Luna
made representations to Compass that she would not involve them in litigation
regarding the breakdown of the employee-employer relationship with Rojano.
However, these were made without her knowledge of the communications between
Rojano, Kore and other Compass employees about Rojano continuing work for
Compass via Nfoque, its competitor. Geodesic filed this lawsuit on June 23, 2015 in
the Circuit Court of Jefferson County, and Compass removed the action to this
Court on July 22, 2015.
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that “might affect the
outcome of the case.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1049 (11th
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Cir. 2015). A dispute is genuine if “the record taken as a whole could lead a
rational trier of fact to find for the nonmoving party.” Id. The trial judge should
not weigh the evidence, but determine whether there are any genuine issues of fact
that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). In making a motion for summary judgment, “the moving party has the
burden of either negating an essential element of the nonmoving party’s case or
showing that there is no evidence to prove a fact necessary to the nonmoving
party’s case.” Id.
A motion for summary judgment is due to be granted upon a showing that
“no genuine dispute as to any material fact” remains to be decided in the action
and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) 4.
A genuine dispute as to a material fact exists “if the nonmoving party has produced
evidence such that a reasonable factfinder could return a verdict in its favor.”
Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). The
Court must “avoid weighing conflicting evidence or making credibility
determinations.” Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287 (11th
Although Fed.R.Civ.P. 56 was amended on December 1, 2010, “the standard for granting
summary judgment remains unchanged.” Fed.R.Civ.P. 56 advisory committee's note (2010
Page 10 of 25
Cir. 2013) (citing Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480 (11th
Defendant Compass asserts summary judgment is due to be granted on each
of Plaintiff Geodesic’s claims. Each of Plaintiff’s claims for relief will be addressed
in turn below.
Common Counts: Open Account, Account Stated, & Value of
Work and Labor Done
Geodesic alleges Compass owes it a sum in the amount of $35,840.00 due by
open account, account stated, and for work and labor done for Compass from May
1, 2013, through June 14, 2013. In Car Center, Inc. v. Home Indem. Co., Inc., the
Alabama Supreme Court cites the Alabama Court of Civil Appeals explaining,
“[a]n account stated is a post-transaction agreement. It is not founded on the
original liability, but is a new agreement between parties to an original account that
the statement of the account with the balance struck is correct and that the debtor
will pay that amount.” 519 So. 2d 1319, 1322 (1988) (citing Univ. of S. Ala. v. Bracy,
466 So. 2d 148, 150 (Ala. Civ. App. 1985)).
A prima facie case on an account stated is made when the plaintiff
proves (1) a statement of the account between the parties is balanced
and rendered to the debtor; (2) there is a meeting of the minds as to
the correctness of the statement; and (3) the debtor admits liability.
The debtor's admission to the correctness of the statement and to his
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liability thereon can be express or implied. An account rendered, and not
objected to within a reasonable time becomes an account stated, and
failure to object will be regarded as an admission of correctness of the
Id. (citations omitted) (emphasis added).
The parties do not dispute that Invoice No. 6 remains unpaid in the amount
of $35,840.00. However, Compass disputes whether or not it is warranted and
owed to the Plaintiff. Geodesic sent Invoice No. 6 in response to a PO181329.
Compass points to the email exchange between Luna and Kore in which she admits
there is no available funding for the efforts expended by Rojano during the relevant
time frame but asks Kore to reconsider. Another email exchange references Luna
responding to Kore saying the date to start charging for David (Rojano) is June
17th, 2013, with “Thank you Bas for your interest in us.” (Doc. 47-5, Ex. C-23.)
Compass contends these communications preclude a meeting of the minds
regarding payment. However, taking the facts in a light most favorable to Geodesic,
a jury could find that upon a request by Luna for reconsideration of the billable
nature of work done from May until June by Rojano, that Compass changed its
mind and the P.O. by Compass was evidence of its decision to compensate
Geodesic for the work done during that time frame. The P.O. and the subsequent
Invoice by Geodesic could be categorized as a post-transaction agreement for which
Geodesic has a claim for open account. Further, Compass’ issuing of the P.O. after
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the conversations between Luna and Kore could amount to an implied admission of
liability on an account stated.
Compass asserts Geodesic cannot capitalize on its mistake to their benefit
because Geodesic knew or should have known of the mistake. Compass cites
Montgomery v. Strickland, 384 So. 2d 1085, 1086-87 (Ala. 1980), it support of its
If one of the parties, through mistake, names a consideration that is out
of all proportion to the value of the subject of negotiation and the other
party realizing that a mistake must have been committed, takes
advantage of it and refuses to let the mistake be corrected when it is
discovered, he cannot under these conditions claim an enforceable
(quoting Bd. of Water & Sewer Comm’rs of the City of Mobile v. Spriggs, 146 So. 2d
872 (Ala. 1962)). The Court is not convinced that the P.O. issued by Compass
reflecting a start date of May 1 was “out of all proportion to the value of the subject
of negotiation.” Id. The record reflects both parties anticipated Rojano’s beginning
work for Compass on May 1 and Geodesic spent considerable effort to ensure he
was available on that date. Rojano did indeed render services to Compass beginning
on May 1, 2013. It is not completely out the question for Geodesic to believe he
would be entitled to compensation for such work. There are genuine disputes of
material fact surrounding the claims for these common counts, precluding
summary judgment on those claims.
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In Count IV, Geodesic alleges Compass suppressed facts that were material
to the Syncada Project. Under Alabama law, establishing a claim of suppression
requires a showing “(1) that [the defendant] had a duty to disclose the existing
material fact; (2) that [the defendant] suppressed this material fact; (3) that [the
defendant’s] suppression of this fact induced [the plaintiff] to act or to refrain from
acting; and (4) that [the plaintiff] suffered actual damage as a proximate result.”
State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834, 837 (Ala. 1998); see also Ala.
Code § 6-5-102 (1975).
1) Compass had a duty to disclose a material fact
“[W]hether a party had a duty to disclose is a question of law to be
determined by the trial court.” Barnett v. Funding Plus of Am., Inc., 740 So. 2d
1069, 1074 (Ala. 1999). The Court must consider and apply the following factors in
determining whether, under the particular circumstances, a duty to disclose exists:
(1) the relationship of the parties; (2) the relative knowledge of the parties; (3) the
value of the particular fact; (4) the plaintiffs' opportunity to ascertain the fact; (5)
customs of the trade; and (6) other relevant circumstances. Owen, 729 So. 2d at
842–43; Davis v. Sterne, Agee & Leach, Inc., 965 So. 2d 1076, 1091 (Ala. 2007) (“A
duty to speak depends on the relation of the parties, the value of the particular fact,
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the relative knowledge of the parties, and other circumstances.”).
The analysis begins with an evaluation of the relationship of the parties. Both
Geodesic and Compass were commercial entities transacting business.
In Freightliner, L.L.C. v. Whatley Contract Carriers, L.L.C., 932 So. 2d 883,
992 (Ala. 2005), the Alabama Supreme Court “explained that, in a commercial
transaction involving arm's length negotiations, the parties have no general
obligation to disclose any specific information to the other, but each has an
affirmative duty to respond truthfully and accurately to direct questions from the
other.” CNH America, LLC v. Ligon Capital, LLC, 160 So. 3d 1195, 1203 (Ala.
2013). Evidence on the record reflects Compass disclosed its general difficulty in
finalizing the contract with Syncada. However, Geodesic insists Compass was
duty-bound to disclose the information contained in the March 15, 2013 emails.
Thus, the question of whether Compass had a duty to disclose depends on (1)
whether Geodesic inquired about the status of the Syncada project and (2) whether
Compass “answered any such questions truthfully and accurately.” Id. Geodesic
asked on a regular basis about the progress of Compass’ contracting with Syncada.
Given that failure to provide financials, by Kore’s own admission, was a “showstopper” on the contracting process between Compass and Syncada, not disclosing
such news to Geodesic in response to their inquiries render Compass’ responses
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untruthful and inaccurate. (See Kore Depo. at 161-62.) Luna testified she inquired
weekly as to how negotiations with Syncada were going and asked whether there
had been any pertinent updates. While Kore responded to these emails, no mention
was ever made about Syncada’s failure to provide its financials, nor the implication
that fact had on the deal. Even with the commercial nature of the parties’
relationship, Kore should have apprised Luna of such news.
Syncada’s refusal to provide its financials to Compass resulting in a halt of
the deal going forward, if true, is obviously material to Geodesic. Geodesic alleges it
would have acted differently had it received notification of such a development,
and thus the March 15th information was valuable. Kore admits news contained in
the March 15, 2013, email was “pretty important.” (Kore Dep. 161-66.) The fact
that a full month elapsed between the March 15th emails and the time Geodesic
finalized logistics surrounding Rojano’s relocation in April is also consequential.
Next, the Court looks to Geodesic’s opportunity to ascertain the allegedly
suppressed fact. Geodesic asserts it would have had no way to procure the
information on its own. Though, as Compass points out, Geodesic “is a
sophisticated commercial party with extensive knowledge regarding consulting
agreements in the IT field,” the record indicates it was not party to the specific
negotiations with Syncada, and was dependent upon Compass to keep it abreast of
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developments. (Compass’ Summary Judgment Brief, Doc. 85 at 20.) “Where the
accused has superior knowledge of the suppressed fact and the defrauded party has
been induced to take action which he might not otherwise have taken, the obligation
to disclose is particularly compelling.” Dominick v. Dixie Nat. Life Ins. Co., 809
F.2d 1559, 1570 (11th Cir. 1987) (emphasis added) (citation omitted). Given the
nature of the relationship of the parties to the transaction, a jury could conclude
Compass had “superior knowledge of the suppressed fact,” and was under a duty
to disclose the “show-stopper” news to Geodesic. Id.
The next consideration is customs of the trade. Geodesic admits the absence
of a signed contract before beginning work on a project in the IT field is typical.
Compass argues this indicates Geodesic would have moved forward with plans to
relocate Rojano regardless of whether they had disclosed the “show stopper” email
information. However, other evidence in the record tends to indicate that reliance
upon the representations of a client like Compass for whom a consulting company
like Geodesic is working towards providing services for was also typical. Geodesic
communicated its expectation that Compass disclose material developments.
Geodesic asserts it relied upon Compass’ professed values of transparency,
honesty and truthfulness in its dealings. (Kore Dep. at 49-50.) Even with
Geodesic’s concession about the typicality of engaging work with a client in the
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absence of contract confirmation, a jury could find that its reliance upon Compass’
representations about the forthcoming deal with Syncada despite the delays was
not outside the trade custom, was reasonable, and tends toward a showing of
Compass’ duty to disclose.
It is worth noting other relevant circumstances. The first is that the parties
were communicating and translating between English and Spanish as both Luna
and Rojano are native Spanish speakers. Second, the parties were communicating
primarily via email and intermittently via telephone from separate continents. Both
of these circumstances counsel towards a finding that Compass was under an
obligation to be particularly frank in its communications with Geodesic.
2) Compass suppressed material fact
The information contained within the March 15 internal email was pertinent
to the viability of the Syncada Project with Compass and could therefore be
deemed material to Geodesic.
3) Act or refrain from acting
As reflected in an email from Luna to Rojano dated Thursday, April 11, 2013,
Luna directed Rojano “to look for tickets and a rental car as if we’re going on May
1 . . . .” (Doc. 47, Ex. C-10.) This email was sent later the same day after Luna
received the April 11 email from Kore conveying that the contract had not yet been
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signed, but the launch date had not been adjusted. Given that Luna was under an
obligation to have Rojano present in Birmingham should the project kick off the
anticipated date, it would be reasonable for Luna to move forward with plans for
Rojano’s relocation in reliance on Kore’s repeated communication that the
expected kick off date was still May 1st and Kore’s suppression of the actual
difficulties with the Syncada contract. Kore testified in his deposition that he
expected Rojano, as part of the Syncada team, to “hit the ground running when the
project kick[ed] off.” (Kore Dep. at 118.) Geodesic has provided enough evidence
to show it would have acted differently in April had it been apprised of the truth
concerning the Syncada Project.
4) Geodesic suffered actual damage as a proximate result.
Without a project for Rojano to work on at Compass, Geodesic would have
had no reason to send him to the U.S. In an email from Kore to Rojano on April 18,
2013, Kore expressed hesitancy about sending Rojano and his beginning May 1st.
(See Doc. 47, Ex. C-12) (“. . . final arrangements are not complete yet. They are
expected to close end of next week. I am worried cutting this so close…May be
better off to put off for 2 weeks to make sure all funding is in place. Sorry for these
delays.”) Rojano responded by telling Kore that a delay would create logistical
problems because they “ha[d] already paid the flight and the apartment fees, and
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beginning in mid-June may mean that the apartment will not be available
anymore. We’ll already [sic] lose the payment . . . .” Id. But for the representations
made about the Syncada Project still moving along, Geodesic would not have had
Rojano in Birmingham on May 1st. Geodesic made the final arrangements for
Rojano after March 15th. It is therefore reasonable to conclude Geodesic would not
have expended the resources it did in efforts to move Rojano internationally had
Compass disclosed the March 15th email news.
Evaluating these factors and considering the applicable law, the Court
concludes Geodesic has presented enough evidence that a reasonable jury could
find a duty to disclose. As such, summary judgment is inappropriate on Count IV.
In Count V, Geodesic alleges Compass represented that Rojano needed to be
relocated to the U.S. to work on the Syncada Project, it justifiably relied on those
representations, and it was damaged by Compass’ conduct. In order to prove a
promissory fraud claim, Geodesic must establish: “(1) a false representation; (2) of
a material existing fact; (3) reasonably relied upon by [Geodesic]; (4) who suffered
damage as a proximate consequence of the misrepresentation . . . ; (5) proof that at
the time of the misrepresentation, [Compass] had the intention not to perform the
act promised; and (6) proof that [Compass] had an intent to deceive.” Southland
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Bank v. A&A Drywall Supply Co., 21 So. 3d 1196, 1210 (Ala. 2008) (internal
citations omitted). Geodesic has presented evidence sufficient to establish the first
four elements as discussed supra. The question then becomes whether Geodesic
has submitted enough evidence to establish: (5) an intention not to perform and (6)
intention to deceive.
The emails in the record show that from March 15th forward, Kore
continually represented to Luna that he saw no reason why the contract would not
be signed. These representations continued until two weeks before Rojano was due
in the U.S. for kickoff. Geodesic has provided evidence Kore had reason to not let
Luna know of the depth of the difficulties in contracting with Syncada, including
the “show-stopper” information, because he considered Rojano valuable and
wanted to be sure to not to lose him. (See Kore Dep. 177-79; Doc. 47 Ex. 43.) In an
April 4th, 2013, email to Courtney Huesman, Kore stated, “There is a risk of
losing [Rojano] if we do not engage (tie up) . . . .” Id. Additionally, evidence in the
record shows Kore shared information, and was often in communication with
Rojano instead of with Luna, which Geodesic avers is indicative of an intention to
deceive. (Kore Dep. 227-80.) This circumstantial evidence is sufficient for
Geodesic to maintain its fraud claim. See Byrd v. Lamar, 846 So. 2d 334, 347 (Ala.
2002) (“Circumstantial evidence is appropriate proof of a present intent not to
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perform in a promissory-fraud case.”). As such, Geodesic has provided enough
evidence to avoid summary judgment on Count V.
Breach of Master Services Agreement & the Non-Disclosure
In Counts VI & VII, Geodesic asserts that the procurement of Rojano by
Compass via Nfoque for the Basel III Project and Compass’ active assistance of
Rojano in setting up Nfoque as an approved vendor on its internal ARIBA system
with full knowledge that he was an employee of Geodesic was a violation of both
the MSA and the NSA agreements. Evidence supplied in the record supports such
an assertion. While Compass insists it never solicited nor hired Rojano, on July 18,
2013, Kore emailed Shawn Bowles asking if Compass could hire a consultant from
Geodesic—Rojano. (Kore Dep. 95-98.) In his response, Bowles even quotes the
pertinent portion of the NSA, section 16—which prohibits Compass from doing so.
(Doc. 47-3, Ex. 25.) Additionally, Rojano and Kore were in communication
regarding his continued employment with Compass via Nfoque before his
separation from Geodesic. Next, numerous emails were exchanged between Rojano
and various Compass employees regarding Nfoque’s registration during Rojano’s
employment with Geodesic. (Doc. 86-2 at 73-93.) An email as early as August 16,
2013, evidences an inquiry from Rojano about Nfoque’s status in Compass’ ARIBA
system (Id.; Doc. 89-2, Ex. 2 at 51) and later emails confirm Rojano’s successful
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registration of Nfoque in Compass’ ARIBA system the week before he began
working for them. Additionally, it is uncontroverted that Rojano began work for
Nfoque the Monday after leaving Geodesic. (Doc. 47-6, Ex. D at 111.)
The MSA also includes a provision regarding payment. (Doc. 47-3, Ex. 24.)
Section 8(c) of the MSA provides, “Compass will pay all accounts due under this
Agreement net forty-five (45) days from its receipt of an invoice.” Geodesic was
not paid for five months. Despite Geodesic’s request for payment by wire transfer
and Compass’ ability to do so, Compass instead issued checks that were
subsequently dishonored. (See Kore Dep. at 316-18.) A reasonable jury could find
this was a breach of an MSA provision.
Compass insists Geodesic cannot demonstrate any damages from Compass’
alleged breach of contract for Rojano’s work on the Basel III Project. However,
Kore testified that sums paid by Compass to Nfoque for Rojano’s work would have
been paid to Geodesic but for Rojano’s transition to Nfoque. (Kore Dep. at 30912.) (Doc. 89 ¶ 78.) This evidence suffices to show damage to Geodesic.
In the aggregate, a jury could find in Geodesic’s favor regarding breach of the
MSA and the NDA agreements thus precluding summary judgment on counts VI
Breach of Contract
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In Count II of its second amended complaint, Geodesic alleges that
Compass’ failure to pay the $35,840.00 for Invoice No. 6 amounts to a breach of
contract pursuant to the purchase orders and invoices and also a violation of
Compass’ own policies and procedures. As stated above, those claims are for a jury
to decide and summary judgment is inappropriate on that claim.
Count III—Tortious Breach of Contract
A tort-like cause of action for the breach of a duty created by contract is not
recognized in Alabama. Indeed, “a negligent failure to perform a contract . . . is but
a breach of the contract.” Vines v. Crescent Transit Co., 85 So. 2d 436, 440 (Ala.
1956); see also Barber v. Bus. Prods. Ctr., 677 So. 2d 223, 228 (Ala. 1996) (“a mere
failure to perform a contractual obligation is not a tort”). As such, Geodesic cannot
maintain its claim for tortious breach of contract and summary judgment is due to
be granted as to Count III.
Geodesic has presented substantial evidence demonstrating there are
genuine issues of material fact for each of their claims except Count III. A
reasonable jury could render a verdict in their favor regarding all other claims.
Consequently, Compass’ renewed motion for summary judgment (doc. 84) is due
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to be DENIED as to all claims except Count III. 5 A separate order consistent with
this opinion will be entered.
DONE and ORDERED on October 30, 2017.
L. Scott Coogler
United States District Judge
Because this Court declined to consider the disputed evidence and arguments that are the
subject of the Defendant’s motion to strike (Doc. 92) in ruling on the instant motion for summary
judgment, that motion is due to be terminated as moot.
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