United States District Court, D. Colorado
A. BRIMMER United States District Judge.
matter is before the Court on Defendant Appslide, LLC's
Motion for Partial Judgment on the Pleadings [Docket No. 19].
The Court has jurisdiction pursuant to 28 U.S.C. § 1332.
April 4, 2016, plaintiff Adperio Network, LLC
(“Adperio”) filed this lawsuit against defendant
AppSlide, LLC (“AppSlide”) alleging claims for
breach of contract and unjust enrichment. Docket No. 1.
Plaintiff is an internet advertising and marketing company.
Id. at 2, ¶ 5. For some advertising campaigns,
plaintiff uses third parties, referred to as
“publishers, ” for online marketing, advertising,
and lead generation. Id. at 2, ¶ 6. Under this
arrangement, advertisers pay plaintiff for its services and
plaintiff, in turn, pays the third-party publishers.
Id. at 2, ¶ 7. On January 21, 2015, plaintiff
entered into a publisher agreement with defendant, using
defendant as a publisher for one of plaintiff's clients
in July, August, September, and October 2015. Id. at
2-3, ¶¶ 8-9, 11. In November 2015, plaintiff began
to question the validity of defendant's advertising
activities and now believes that the July-September 2015
leads or consumer activities “were not valid or
otherwise compensable to AppSlide.” Id. at 4,
requests partial judgment on the pleadings related to
“that portion of the complaint claiming a refund of
commissions for Project No. 1.” Docket No. 19 at 3. As
grounds for its motion, defendant states that plaintiff
admits in its complaint that plaintiff's client paid
plaintiff in full for defendant's publishing activities
from July to September 2015 for Project No. 1, and therefore
plaintiff cannot claim damages related to defendant's
work during that time. Docket No. 19 at 2, 4.
STANDARD OF REVIEW
Court reviews a motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c) much as it does a
motion to dismiss pursuant to Rule 12(b)(6). See Adams v.
Jones, 577 F. App'x 778, 781-82 (10th Cir. 2014)
(unpublished) (“We review a district court's grant
of a motion for judgment on the pleadings de novo, using the
same standard that applies to a Rule 12(b)(6) motion.”)
(quoting Park Univ. Enters., Inc. v. Am. Cas. Co. of
Reading, PA, 442 F.3d 1239, 1244 (10th Cir. 2006)). The
Court must “accept all facts pleaded by the non-moving
party as true and grant all reasonable inferences from the
pleadings in favor of the same.” Id. To
prevail, the moving party must show that “no material
issue of fact remains to be resolved and the party is
entitled to judgment as a matter of law.” United
States v. Any & All Radio Station Transmission
Equip., 207 F.3d 458, 462 (8th Cir. 2000).
argues that the complaint “establishes that, as a
matter of law, Adperio was not damaged in respect of Project
No. 1, which AppSlide performed in July-September
2015.” Docket No. 19 at 3. To support this claim,
defendant points to plaintiff's statement in the
complaint that plaintiff paid defendant $392, 501 in
commissions for its publishing activities in July-September
2015 (“Project No. 1”), that plaintiff paid
defendant $287, 206.80 for its October 2015 publishing
activities (“Project No. 2”), and that
plaintiff's client withheld payment for the October 2015
leads and consumer activities. Docket No. 1 at 3-4, ¶
12, 14, 19. Defendant claims that plaintiff's failure to
plead that its client withheld payment for the July-September
2015 publishing activities means that the client did pay
plaintiff for Project No. 1 and thus plaintiff has failed to
allege damages. Docket No. 19 at 4.
12(c) states that “[a]fter the pleadings are closed -
but early enough not to delay trial - a party may move for
judgment on the pleadings.” Fed.R.Civ.P. 12(c).
Plaintiff's first claim, for breach of contract, alleges
that defendant breached the publisher agreement by generating
invalid leads, receiving payment for invalid leads, failing
to provide lead validation information, and failing to refund
$283, 989.75 in payments. Docket No. 1 at 5, ¶ 25. As a
result of this breach, plaintiff seeks damages in excess of
$675, 000, including the amount paid to AppSlide for invalid
leads, related lost profits, costs and attorney fees.
Id. at 5, ¶ 26. Defendant cites no authority
that would allow a court to infer that a plaintiff got paid
by a third party for work the defendant performed and thereby
excise the amount of such payment from plaintiff's
damages claim. Even if, under the proper circumstances, Rule
12(c) could be used for this purpose, such circumstances do
not exist here. Plaintiff has pled damages for lost profits
and costs, which may be related to Project No. 1, and which
raise numerous fact issues. Docket No. 1 at 5, ¶ 26.
Moreover, it is not clear as a matter of law that nonpayment
by plaintiff's clients is necessary to show damages under
either the breach of contract claim or the unjust enrichment
claim. See Docket No. 1-1 at 3, ¶ 5
(“Publisher shall not earn commissions on Invalid
Leads.”); Restatement (Third) of Restitution and Unjust
Enrichment § 3 (2011) (“A person is not permitted
to profit by his own wrong.”).
Court finds that defendant has failed to show entitlement to
judgment as a matter of law and that no material issue of
fact remains with respect to Project No. 1.
accordance with the foregoing, it is ORDERED that Defendant
AppSlide, LLC's Motion for Partial Judgment on ...