V-ME Media, Inc. v. Faith7, Inc. d/b/a ChimeTV, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

V-ME MEDIA, INC., )
)
Plaintiff, )
) C.A. No.: N24C-05-247 FWW
v. )
)
FAITH7, INC. d/b/a/ CHIMETV, INC., )
)
Defendant. )

Submitted: September 11, 2024
Decided: October 18, 2024

Upon the Motion to Dismiss of Defendant Faith7, Inc. d/b/a ChimeTV, Inc.
GRANTED in part and DENIED in part.

MEMORANDUM OPINION

David Holloway, Esquire, HOLLOWAY LAW LLC, 1504 N. Broom Street, Suite
1, Wilmington, DE 19806, Attorney for Plaintiff.

R. Karl Hill, Esquire, SEITZ, VAN OGTROP & GREEN, P.A., 222 Delaware
Avenue, Suite 1500, Wilmington, DE, 19801, Attorney for Defendant Faith7, Inc.
d/b/a ChimeTV, Inc.

WHARTON, J.
I. INTRODUCTION

V-ME Media, Inc. (“V-ME”) brings this action against Faith7, Inc. d/b/a

ChimeTV (“ChimeTV”) alleging single counts of Fraudulent Inducement (Count I),

Breach of Contract (Count II), and Unjust Enrichment (Count III).1 V-ME and

ChimeTV are media companies that entered into a contract on either October 3, 2022

or October 4, 2022.2 The contract required ChimeTV to pay V-ME $700,000 per

year for two years, payable in installments in exchange for which V-ME was

required to provide oversight, management, and the logistics of trafficking media to

ChimeTV’s network.3 V-ME alleges the ChimeTV fraudulently induced it to enter

into the contract by knowingly and falsely representing that it had sufficient

operating funds for two to three years while VE-M procured media for its network.

Then, after the contract was executed, ChimeTV, having insufficient operating

funds, defaulted on its installment payments, breaching the contract and unjustly

enriching itself.

ChimeTV moves to dismiss each count. It contends: (1) the fraudulent

inducement count improperly merely replicates the breach of contract count and

alleges fraud with insufficient particularity; (2) V-ME improperly bypassed

1
Compl., D.I. 1.
2
Id. at ⁋ 2, 10. Paragraph 2 alleges the parties entered into the contract on October
3 . Paragraph 10 alleges it was October 4th. The difference is immaterial.
rd
3
Id. at ⁋⁋ 11-12.
2
contractually mandated pre-litigation notice and opportunity to cure requirements

before suing for breach of contract; and (3) the unjust enrichment claim cannot exist

in the presence of a formal contract.

For the reasons set out below the Court dismisses Count I – Fraudulent

Inducement, but declines to dismiss Count II – Breach of Contract and Count III –

Unjust Enrichment.

II. FACTS AND PROCEDURAL BACKGROUND

The Complaint alleges that the parties entered into a contract on October 3 or

4, 2002.4 The Fraudulent Inducement count alleges that prior to entering into the

contract, ChimeTV, through both its President and CEO knowingly and falsely

assured V-ME’s CFO that its shareholders had invested around $4 million and it

would be able to cover operating expenses in order to induce V-ME to enter into the

contract.5 V-ME reasonably relied on these representations when it entered into the

contract.6 After the contract was signed ChimeTV defaulted on its installment

payment obligations and the true state of its financing was exposed.7 V-ME was

injured as a result.8 The Breach of Contract claim alleges that V-ME provided the

services required by the contract, but ChimeTV failed to meet its payment

4
Id. at ⁋ 10.
5
Id. at ⁋⁋ 14-19; 28-30.
6
Id. at ⁋ 35
7
Id. at ⁋⁋ 19-25.
8
Id. at ⁋⁋ 35-36.
3
obligations, resulting in damages to V-ME.9 Finally, the Unjust Enrichment count

alleges that ChimeTV was enriched and V-ME was impoverished when V-ME was

not compensated for the services it provided.10

ChimeTV moved to dismiss on August 7, 2024.11 V-ME responded12 and

ChimeTV replied.13 The motion is ripe for resolution.

III. THE PARTIES’ CONTENTIONS

ChimeTV moves to dismiss each count. It seeks dismissal of the Fraudulent

Inducement count because, it argues, the claim of fraud is not alleged with the degree

of particularity required by Superior Court Civil Rule 9(b) and because it improperly

bootstraps a claim of breach of contract into a claim of fraud simply by alleging

ChimeTV never intended to meet its payment obligations under the contract.14

Turning to the Breach of Contract claim, ChimeTV faults V-ME for representing

that the contract was attached to the Complaint, but failed to do so.15 According to

ChimeTV, the contract requires V-ME, prior to pursuing any legal or equitable

remedies, to give ChimeTV “written notice that describes any purported default and

the steps to cure after which Defendant shall have thirty (30) days from such notice

9
Id. at ⁋⁋ 40-43.
10
Id. at ⁋⁋ 45-49.
11
Def’s. Mot. to Dismiss, D.I. 12.
12
Pl.’s Resp., D.I. 14.
13
Def.’s Reply, D.I. 17.
14
Def.’s Mot. to Dismiss, at ⁋⁋ 4-5, D.I. 12.
15
Id. at ⁋ 6.
4
to cure the default.16 ChimeTV contends that V-ME did not comply with that

provision.17 Finally, ChimeTV argues that the Unjust Enrichment count should be

dismissed because unjust enrichment claims are only available in the absence of a

formal contract.18

In response to ChimeTV’s argument that the Fraudulent Inducement claim

lacks sufficient particularity, V-ME cites Paragraph 13 of the Complaint specifying

the time frame in which the allegedly false statement occurred, Paragraph 14

identifying the specific individuals who made the statements, Paragraph 15 detailing

the amount of money ChimeTV claimed it had to cover operating expenses, and

Paragraph 20 detailing ChimeTV’s admission that it did not have the funds it

previously claimed to have.19 Next, V-ME addresses ChimeTV’s request to dismiss

the Breach of Contract claim. It argues that “all conditions precedent to the bringing

of this lawsuit have occurred,” citing Paragraph 8 of the Complaint, which,

according to it, at least implicitly establishes that the condition precedent of

providing notice of its default to ChimeTV before bringing suit has been met. 20 V-

ME also cites Paragraph 20, indicating ChimeTV was on notice of the breach,

Paragraph 21 describing email communications about the breach, and Paragraph 23

16
Id. at ⁋7.
17
Id.
18
Id. at ⁋ 8.
19
Pl.’s Resp., at ⁋ 8, D.I. 14.
20
Id. at ⁋ 14.
5
further detailing email communications regarding ChimeTV’s continuing failure to

make payments.21 Finally, V-ME acknowledges that it cannot recover on both a

breach of contract theory and unjust enrichment theory, but argues at this stage of

the case pleading in the alternative is permissible.22

In reply, ChimeTV emphasizes it’s argument that the Fraudulent Inducement

claim bootstraps V-ME’s Breach of Contract claim, an argument V-ME does not

address in its response.23 ChimeTV also disputes that Paragraphs 13 and 15 contain

the specificity required to properly allege fraud.24 Regarding the Breach of Contract

claim, ChimeTV contends that the paragraphs cited by V-ME as addressing the

contractual notice of breach and opportunity to cure requirements of the contract do

not address those requirements adequately.25 Finally, ChimeTV contends that V-

ME’s argument that the Unjust Enrichment claim is properly pled as an alternative

theory of liability fails because V-ME does not challenge the validity of the formal

contract.26

IV. STANDARD OF REVIEW

21
Id. at ⁋ 15.
22
Id. at ⁋⁋ 17-21.
23
Def.’s Reply, at ⁋⁋ 1-2, D.I. 17.
24
Id. at ⁋⁋ 3-6
25
Id. at ⁋⁋ 8-12.
26
Id. at ⁋⁋ 13-16.
6
The Court applies the standard of review applicable to motions to dismiss

under Superior Court Civil Rule 12(b)(6). A motion to dismiss for failure to state a

claim pursuant to Superior Court Rule 12(b)(6) will not be granted if the “plaintiff

may recover under any reasonably conceivable set of circumstances susceptible of

proof under the complaint.”27 The Court's review is limited to the well-pled

allegations in the complaint.28 In ruling on a 12(b)(6) motion, the Court “must draw

all reasonable factual inferences in favor of the party opposing the motion.”29

Dismissal is warranted “only if it appears with reasonable certainty that the plaintiff

could not prove any set of facts that would entitle him to relief.”30

Superior Court Civil Rule 9(b) requires that “[i]n all averments of fraud or

mistake, the circumstances constituting fraud or mistake shall be stated with

particularity.”31 The particularity pleading standard requires a party to plead “the

time, place and contents of the false representations.”32 However, “[m]alice, intent,

knowledge, and other condition of mind of a person may be averred generally.”33

The requirement that fraud be pleaded with particularity “serves to discourage the

27
Browne v. Robb, 583 A.2d 949, 950 (Del. 1990).
28
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
29
Id.
30
Id.
31
Super. Ct. Civ. R. 9(b).
32
ITW Glob. Investments Inc. v. Am. Indus. Partners Capital Fund IV, L.P., 2015
WL 3970908, at *5 (Del. Super. Ct. June 24, 2015).
33
Super. Ct. Civ. R. 9(b).
7
initiation of suits brought solely for their nuisance value, and safeguards potential

defendants from frivolous accusations of moral turpitude.”34

V. DISCUSSION

A. Count I - Fraudulent Inducement

1. Fraud is alleged sufficiently.

The Court turns first to Count I - Fraudulent Inducement. In order to survive

a motion to dismiss a fraud claim, the party asserting fraud must allege that: (1) the

accused party falsely represented a material fact or omitted facts that they had a duty

to disclose; (2) the accused party knew that the representation was false or made

with a reckless indifference to the truth; (3) the accused party intended to induce the

party asserting the fraud action to act or refrain from action; (4) the party asserting

the fraud acted in justifiable reliance on the representation; and (5) the party asserting

the fraud was injured by its reliance on the accused party’s representation.35

V-ME alleges all of the elements of fraud in its Complaint. ChimeTV only

half-heartedly argues otherwise, merely stating that V-ME’s allegations of fraud “do

not amount to a colorable claim for common law fraud.”36 The Court finds that the

Complaint alleges all of the necessary elements of fraud. It alleges that: (1)

34
Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624 A.2d
1199, 1208 (Del.1993).
35
ITW Glob. Investments Inc., 2015 WL 3970908, at *5.
36
Def.’s Mot. to Dismiss, at ⁋ 10, D.I. 12.
8
ChimeTV falsely represented that it had sufficient funds on hand to cover operating

expenses for two to three years;37 (2) ChimeTV knew the representation was false;38

(3) ChimeTV intended to induce V-ME to enter into the contract;39 (4) V-ME acted

in justifiable reliance on the representation;40 and (5) V-ME was injured by its

reliance on the representation.41

ChimeTV does contend more forcefully, however, that V-ME’s allegations

of fraud do not meet Rule 9(b)’s particularity requirements. The Court finds V-ME

has met those requirements as well. The Complaint alleges the time the

representations were made – in negotiations between the parties “prior to” and

“leading up to” October 4, 2022.42 While the Complaint does not specifically

identify the “place” where the representations were made, identifying the physical

situs where representations are made loses its force as a prophylaxis against fraud

where people regularly communicate via telephone and email from anywhere in the

world. In fact the physical location of counterparties to a communication may not

be knowable. V-ME identifies the parties to the communications with particularity.

It alleges ChimeTV’s President and its CEO made the representations to V-ME’s

37
Compl., at ⁋⁋ 15, 17, 29, D.I. 1.
38
Id. at ⁋⁋ 18, 33.
39
Id. at ⁋⁋ 19, 30.
40
Id. at ⁋⁋ 34.
41
Id. at ⁋⁋ 26, 27, 35, 36.
42
Id. at ⁋⁋ 13, 29.
9
CFO, all of whom are identified by name.43 The contents of the allegedly fraudulent

representations also are alleged with sufficient particularity. V-ME alleges that its

CFO explained to ChimeTV’s President at its CEO that “the television business is

difficult, complex, and undergoing systemic challenges” and that ChimeTV “would

have to have funds on-hand to cover at least two to three years of operating expenses

of the television channel that Plaintiff was to service under the Contract.”44 Both

ChimeTV’s President and its CEO assured V-ME’s CFO that “the Defendant’s

shareholders had invested around $4 million dollars, and would therefore be able to

cover the operating expenses.”45 It is this particular representation, made by these

particular individuals during contract negotiations leading up to October 4, 2022 that

are alleged to be fraudulent. Accordingly, the Court concludes that V-ME has met

the particularity requirement of Rule 9(b).

2. The Fraudulent Inducement and Breach of Contract Claims are
Distinguishable.

ChimeTV also challenges the Fraudulent Inducement claim on the basis that

it is really a “bootstrapped breach of contract claim.”46 V-ME does not address this

argument in its response, prompting ChimeTV to ask the Court to consider the point

43
Id. at ⁋⁋ 14, 15.
44
Id. at ⁋ 14.
45
Id. at ⁋ 15.
46
Def.’s Mot. to Dismiss, at ⁋ 11, D.I. 12.
10
conceded.47 The Court declines that invitation, preferring what it considers the better

practice of assessing the merits of ChimeTV’s argument. It is clear that a plaintiff

may not merely reprise a breach of contract claim, allege fraud, and create a

fraudulent inducement claim – “[U]nder Delaware law, a plaintiff ‘cannot

“bootstrap” a claim of fraud merely by alleging that a contracting party never

intended to perform its obligations.’ Nor can a plaintiff devise a claim for fraud

‘simply by adding the term “fraudulently induced” to a complaint.’”48 It is also clear

that “fraud damages allegations can’t simply ‘rehash’ the damages that were

allegedly caused by the claimed breach of contract.”49 But, it is true, of course, that

a fraudulent inducement claim may coexist in the same complaint with a breach of

contract claim. “Delaware courts routinely recognize an exception to this ‘bootstrap’

rule where a plaintiff pleads ‘that the Seller knew that the Company’s contractual

representations and warranties were false’ when made.”50

The timing of the alleged misrepresentation is crucial in distinguishing

between fraudulent inducement and breach of contract.51 The question is whether

47
Def.’s Reply, at ⁋ 1, D.I. 17.
48
EZLinks Golf, LLC v. PCMS Datafit, Inc. 2017 WL 1312209, *5 (Del. Super. Ct.
Mar. 13, 2017) (quoting Narrowstep, Inc. v. Onstream Media Corp, 2010 WL
5422405, at *15 (Del. Ch. Dec. 22, 2010)).
49
Id. at *7
50
Anschutz Corp. v. Brown Robin Cap., LLC, 2020 WL 3096744, at *15 (Del. Ch.
June 11, 2020).
51
EZLinks Golf, LLC 2017 WL 1312209, at *5.
11
the conduct “‘go[es] directly to the inducement of the contract, rather than its

performance.’”52 Taking the fraudulent inducement allegations in the light most

favorable to V-ME, prior to the parties entering into the contract, V-ME told

ChimeTV that it would not provide services to it if it did not have adequate operating

funds.53 Knowing that, and knowing that it had inadequate operating funds,

ChimeTV, nonetheless intentionally and falsely represented to V-ME that it did have

adequate funds.54 Accordingly, the Court finds that V-ME has pleaded enough

alleged pre-contract misconduct to distinguish the fraudulent inducement claim from

the breach of contract claim.

3. The Fraudulent Inducement Claim Does Not Plead Separate
Damages.

The final question on the propriety of the fraudulent inducement claim is

whether it alleges separate damages from the breach of contract claim. Failure to

plead separate damages is an independent ground for dismissal.55 For the fraudulent

inducement claim, the Complaint alleges V-ME is entitled to damages: (1) “as it

began spending its resources on performing under the contract without being

52
Id. (quoting Brasby v. Morris, 2007 WL 949485, at *7 (Del. Super. Ct. Mar. 29,
2007)).
53
Compl., at ⁋⁋ 14, 30, D.I. 1.
54
Id. at ⁋⁋ 29, 32, 33.
55
EZLinks Golf, LLC, at *6 (citing Cornell Glasgow, LLC v. La Grange Props, LLC,
2012 WL 2106945, at *9 (Del. Super. Ct. June 6, 2012)).
12
compensated;”56 and (2) “was injured by the opportunity cost of having to devote its

resources to a deal that was doomed from the start,” which resources “could have

been used to service a good-faith contract with another company.”57 For the breach

of contract claim the Complaint alleges that V-ME “sustained damages;”58 and

“caused Plaintiff to incur losses associated with credit card and/or Paypal charges.”59

The Court perceives no difference between damages incurred as a result of V-

ME “performing under the contract” and damages incurred because ChimeTV

breached its payment obligations. It is the essence of a contract that the contracting

parties undertake reciprocal obligations. The fact the one party was performing

under the contract simply means that it was not in breach as well. In that

circumstance, the performing party’s remedy is breach of contract damages.

V-ME also has alleged “opportunity cost” damages. In other words, V-ME

alleges that instead of wasting its resources on a deal that had no chance of success,

it could have devoted its resources to deals that had the potential to be successful.

However, “damages based upon lost opportunity and speculative alternatives are

difficult to prove, and as a general matter, do not constitute a cognizable injury.”60

56
Compl., at ⁋ 35, D.I. 1.
57
Id. at ⁋ 36.
58
Id. at ⁋ 42.
59
Id. at ⁋ 43.
60
Fin Cap, Inc v. Paynerd, LLP, 2023 WL 5543763, at *5 (Del. Super. Ct. Aug. 29,
2023) (citing Manzo v. Rite Aid Corp., 2002 WL 31926606, at *5 (Del. Ch. Dec. 19,
2002) aff’d 825 A.2d 239 (Del. 2003)(“[A]warding money damages to compensate
13
Because these “opportunity cost” damages at best are speculative and uncertain, the

Court does not recognize them as constituting an independent allegation of damages

sufficient to support a separate claim of fraudulent inducement. Accordingly,

ChimeTV’s motion to dismiss Count I – Fraudulent Inducement is GRANTED.

B. Count II - Breach of Contract

ChimeTV argues that the breach of contract claim should be dismissed because

V-ME did not allege that it provided ChimeTV with the contractually mandated

written notice of its default and the steps necessary to cure the default within 30

days.61 ChimeTV further argues that, in fact, V-ME did not comply with the

conditions precedent to bringing suit.62 On the other hand, V-ME points to

Paragraph 8 of the Complaint that alleges “‘all conditions precedent to the bringing

of this lawsuit have occurred.’”63 V-ME cites other portions of the Complaint that

indicate that ChimeTV was on notice of the breach.64 Viewing the allegations of the

Complaint in the light most favorable to V-ME, as it must at this stage, the Court

finds that V-ME has alleged that it met all conditions precedent for bringing this

plaintiff for the return she could have earned elsewhere…amounts to speculation
founded upon uncertainty…[P]laintiff’s assertion of ‘investment opportunity losses’
does not, in my opinion, state a cognizable injury.”)).
61
Def.’s Mot. to Dismiss, at ⁋⁋ 7, 13, 14, D.I. 12.
62
Id. at 7.
63
Pl.’s Resp., at ⁋ 14 (quoting the Complaint at ⁋ 8), D.I. 14.
64
Id. at ⁋ 15.
14
litigation.65 ChimeTV’s motion to dismiss Count II - Breach of Contract is

DENIED.

C. Count III - Unjust Enrichment

Lastly, ChimeTV moves to dismiss V-ME’s Unjust Enrichment claim,

contending unjust enrichment claims are only available in the absence of a formal

contract and fail to state a claim when they a premised on an express enforceable

contract.66 V-ME agrees that it cannot recover under both a breach of contract theory

and an unjust enrichment theory, but maintains that both claims should be allowed

to proceed as alternative pleadings under Superior Court Rule 8(e)(2).67

The parties both cite Vichi v. Koninklijke Phillips Elecs., N.V.68 and Anschutz

Corp. v. Brown Robin Capital,69 albeit with differing takeaways. ChimeTV quotes

Vichi for the proposition that ‘“a party cannot recover under a theory of unjust

enrichment if a contract governs the relationship that gives rise to the unjust

enrichment claim.”’70 Similarly, it cites Anschultz as generally supporting the

dismissal of unjust enrichment claims as duplicative where there is an enforceable

65
Of course, the development of the facts concerning V-ME’s compliance with any
contractual conditions precedent to litigation may result in the Court revisiting this
issue later in a different context.
66
Def.’s Mot. to Dismiss, at ⁋⁋ 8, 15, 16, D.I. 12.
67
Pl.’s Resp., at ⁋⁋ 17-20, D.I. 14.
68
62 A.3d 26 (Del. Ch. 2022).
69
2020 WL 3096744 (Del. Ch. June 11, 2022).
70
Def.’s Mot. to Dismiss, at ⁋ 15 (quoting Vichi 62 A.3d at 58), D.I. 12.
15
contractual relationship.71 V-ME counters that Vichi was a ruling on summary

judgment issued after the unjust enrichment claim had survived a motion to dismiss

and the Court in Anschultz declined to dismiss the unjust enrichment claim

notwithstanding the language cited by ChimeTV.72 Additionally, V-ME references

Vice Chancellor Laster’s reasoning in Garfield on behalf of ODP Corp. v. Allen73

that a pleading stage ruling, where all of the claims arise from a common nucleus

of operative facts, is unlikely to simplify discovery or the presentation of evidence.74

The Vice Chancellor found no utility at the early stage of the litigation in “delving

into the alternative theories to assess how they may interact”.75 Replying to V-ME,

ChimeTV notes that the plaintiff in Anschultz, unlike V-ME, disputed the validity of

the contract.76 In Vichi, as here, there was no doubt about the existence of an

enforceable contract, thereby barring recovery under an unjust enrichment theory.77

Lastly, ChimeTV points out that the Court in Garfield acknowledged there have

been multiple Delaware decisions where the Court conducted the same analysis of

71
Id.
72
Pl.’s Resp., at ⁋ 18, D.I. 14.
73
277 A.3d 296 (Del. Ch. 2022).
74
Id. at 361.
76
Id. at 362.
77
Def.’s Reply, at ⁋ 13, D.I. 13.
78
Id. at ⁋ 14.
79
Id. at ⁋ 15.
16
the potential interaction among claims at the pleading stage that ChimeTV seeks

here.78 It contends such an analysis would be beneficial.79

A closer look at the Unjust Enrichment count is warranted. First, it realleges

the first 27 paragraphs of the Complaint.80 Those paragraphs include allegations

that: (1) the parties entered into a contract on October 3 or 4, 2022;81 and (2) the

contract required ChimeTV to make installment payments totaling $700,000 per

year for two years in exchange for which V-ME would provide services “described

in detail under Section 4 of the Contract;”82 After alleging that ChimeTV was

unjustly enriched and V-ME impoverished, the Complaint states, “As to this Count,

if Plaintiff is barred from recovery as to Count I or Count II, there would be an

absence of remedy at law.”83

Like Schrödinger’s Cat,84 the Complaint alleges in the Unjust Enrichment

count that the contract both exists and does not exist simultaneously. But just as this

80
Id. at ⁋ 16.
81
Compl. at ⁋ 44, D.I. 1.
82
Id. at ⁋ 10.
83
Id. at ⁋ 11.
84
Id. ⁋ 49.
85
Schrödinger’s Cat is a thought experiment devised by the Australian physicist
Erwin Schrödinger. The experiment is designed to illustrate a paradox of quantum
superposition wherein a hypothetical cat may be considered both alive and dead
simultaneously because its fate is linked to a random event that may (or may not)
occur. The cat has a 50% chance of dying and 50% of living after an hour in an
experimental box. While the cat is in the box, it is both dead and alive.

17
Court need not ponder paradoxes of quantum physics, it need not ponder the

alternate theories and their interaction now. In moving to dismiss the Breach of

Contract claim, ChimeTV advances the argument that all of the conditions precedent

to initiating litigation had not been alleged or performed. Based on the skeletal

record before it and the limitation on the Court’s review to the well pleaded

allegations in the Complaint, the Court declined to dismiss that count. A more well

developed factual record might present ChimeTV with an opportunity to ask the

Court to revisit the question of whether the conditions precedent to initiating

litigation were satisfied. In that event, were the Court to bar V-ME from proceeding

on its Breach of Contract claim, the viability of the Unjust Enrichment claim then

would be at issue. For that reason, the Court finds the more prudent course to be to

await future developments before “delving into the alternate theories to assess how

they may interact.” ChimeTV’s motion to dismiss Count III – Unjust Enrichment is

DENIED.

THEREFORE, ChimeTV’s Motion to Dismiss Count I – Fraudulent

Inducement is GRANTED; it’s Motion to Dismiss Count II – Breach of Contract is

DENIED; and it’s Motion to Dismiss Count III – Unjust Enrichment is DENIED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton
Ferris W. Wharton, J.

18