Clutch Solutions LLC v. Acronis Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Clutch Solutions LLC,
Plaintiff,
v.
Acronis Incorporated,
Defendant.
No. CV-25-02226-PHX-JJT
ORDER
At issue is Plaintiff Clutch Solutions, LLC’s Verified Application for Pre-Judgment
Provisional Remedies (After Notice) and Motion for Pre-Judgment Discovery in Aid of
Enforcement (Doc. 1-1 at 91–135, Applic.), which Plaintiff filed on June 17, 2025, while
this case was before the state court. On October 10, 2025, this Court entered an Order
concluding among other things that Defendant Acronis Inc. did not waive its right to
request a hearing and file a response to Plaintiff’s Application by removing this case from
Arizona state court and then seeking to transfer it to the U.S. District Court for the District
of Massachusetts. (Doc. 42.) As a result, Defendant filed its Opposition to the Application
on October 24, 2025 (Doc. 43, Opp’n), and Plaintiff filed its Reply on October 31, 2025
(Doc. 47, Reply). The Court held a hearing on the Application on November 3, 2025, (Doc.
48; Doc. 51, Tr. of 11/03/2025 Hr’g (“Hr’g Tr.”)), and ordered the parties to file
simultaneous supplemental briefs, which they timely filed on November 14, 2025 (Doc.
55, Def.’s Supp. Br.; Doc. 56, Pl.’s Supp. Br.). For the reasons set forth below, the Court
will deny Plaintiff’s Application and Motion.
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I. BACKGROUND
According to the allegations in the Verified Complaint (Doc. 1-1 at 6–87, Compl.),
Plaintiff Clutch Solutions, LLC is an Arizona Managed Service Provider (“MSP”) that
delivers comprehensive technology solutions and services to its clients, and Defendant
Acronis, Inc. is a Delaware corporation headquartered in Massachusetts that delivers
cybersecurity, data-protection, and endpoint-management solutions to MSPs and
enterprises. In 2023, Plaintiff and Defendant entered into an agreement titled “#TEAMUP
with ARIZONA CARDINALS” (“Teamup Agreement”) in anticipation of Defendant
entering into a separate sponsorship agreement with the Arizona Cardinals organization.
(Compl. ¶¶ 17–18.) Under the terms of the Teamup Agreement, Plaintiff agreed to pay a
monthly fee to Defendant to serve as Defendant’s marketing and product delivery partner,
but the contract only remained valid if Defendant’s sponsorship agreement with the
Arizona Cardinals came through. (Compl. Ex. 1 at 1 ¶ E; § 1.) In addition, as conditioned
in the Teamup Agreement, Plaintiff entered into another agreement with a designated
middleman, non-party Ingram Micro, Inc., for the purchase, use, and resale of Defendant’s
products and services.
The sponsorship agreement between Defendant and the Arizona Cardinals
organization fell through, and under the terms of the Teamup Agreement, once Defendant
informed Plaintiff the Cardinals sponsorship agreement was off, the Teamup Agreement
became null and void. (Compl. ¶¶ 29–30.) But Plaintiff claims that Defendant continued to
cause Ingram to debit Plaintiff the monthly fee, which accumulated to over $800,000 in
payments by the time Plaintiff filed this lawsuit. (Compl. ¶¶ 35–36, 60.) Plaintiff asserts
that Defendant/Ingram were not authorized to continue to take the monthly fee from
Plaintiff.
In June 2025, Plaintiff sued Defendant in Arizona state court, raising claims of
unjust enrichment, conversion, fraud, money had and received, and constructive trust.
(Compl. ¶¶ 63–130.) While the case was pending in state court, Plaintiff filed an
Application under Arizona state law for prejudgment provisional remedies, including
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attachment and garnishment, to try to freeze or seize certain assets of Defendant pending a
final judgment in this case. (Applic.) Defendant properly removed this case based on
diversity jurisdiction (Doc. 1), and this Court subsequently denied Defendant’s motion to
transfer venue to the U.S. District Court for the District of Massachusetts, finding that a
forum selection clause in one of the parties’ agreements does not pertain to Plaintiff’s
claims in this lawsuit (Doc. 36). The Court will now resolve Plaintiff’s pending Application
and Motion.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 64(a) provides: “At the commencement of and
throughout an action, every remedy is available that, under the law of the state where the
court is located, provides for seizing a person or property to secure satisfaction of the
potential judgment. But a federal statute governs to the extent it applies.” Arizona law
provides that a party may apply to a court for any provisional remedy allowed by law at
any time after the filing of a civil action. A.R.S. § 12-2404.
First, applying Arizona law, Plaintiff seeks a provisional remedy under A.R.S. § 12-
1521 in the form of prejudgment attachment of Defendant’s property “as security for
satisfaction of any judgment which may be recovered.” (Applic. at 5–6.) That statute
permits such attachment, among other instances, “[i]n an action upon a contract, express
or implied, for payment of money which is not fully secured by real or personal property,”
id. § 12-1521(1), or “[i]n an action for damages or upon contract, express or implied,
against a defendant not residing in this state or a foreign corporation doing business in this
state,” id. § 12-1521(3). Because the statutory requirements for obtaining a writ of
attachment “are intended to safeguard defendants’ due process rights, courts require strict
adherence with the statutes’ terms.” Yauck v. West Town Bank & Tr., 568 P.3d 386, 393
(Ariz. Ct. App. 2025) (citing Valley Nat’l Bank of Ariz. v. Educ. Credit Bureau, Inc., 531
P.2d 193, 194–95 (Ariz. Ct. App. 1975) (“citing case law for the proposition that
‘prejudgment summary remedies provided by statute must be strictly followed’ to ‘protect
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the owner of property from undue hardship and deprivation of its full use and enjoyment
prior to final adjudication of the creditor’s right, if any, to the property’” (cleaned up))).
Under A.R.S. § 12-1522, an application for a writ of attachment must include an
affidavit that makes “a ‘showing’ of statutory grounds for issuance” of the writ of
attachment, and the “factual showing required by § 12-1522 cannot be made by an affidavit
consisting of conclusory assertions by an affiant who fails to establish personal knowledge
of the matters set forth therein.” Yauck, 568 P.3d at 393. Moreover, A.R.S. § 12-1524
provides, “Before issuance of a writ of attachment, plaintiff shall execute and file a bond
payable to defendant in an amount not less than the amount for which action is brought,”
and plaintiff “will pay all damages and costs as may be sustained by defendant by reason
of the wrongful obtaining of the attachment.”
Second, Plaintiff seeks a prejudgment writ of garnishment under A.R.S. § 12-1572.
(Applic. at 6–9.) That statute requires an applicant to state: (1) it is a judgment creditor, (2)
it has good reason to believe that, among other options, “the garnishee is indebted to the
judgment debtor for monies that are not earnings” or “the garnishee is holding nonexempt
monies on behalf of the judgment debtor,” (3) “[t]he amount of the outstanding balance
due on the underlying judgment” plus interest, attorney’s fees, and garnishment fees on the
date of the application, and (4) the garnishee’s address.
A.R.S. § 12-2410 provides that, “[u]pon filing of a request for hearing” on a
provisional remedy application, the Court shall set the hearing to consider “[t]he probable
validity of the applicant’s claim or claims and any defenses . . . of the party against whom
such provisional remedy will operate.” Id. § 12-2410(A), (C). The Court shall issue the
requested provisional remedy “[i]f after hearing the court finds probable cause to believe
the claim of the applicant is valid and that the statutory requirements for any provisional
remedy have been met.” Id. § 12-2410(D).
Although the statute does not define the “probable validity” standard the Court is to
apply in examining the applicant’s claim—or, as the statute alternatively expresses,
“probable cause to believe the claim . . . is valid”—Black’s Law Dictionary defines “valid”
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as “[m]eritorious” in this context. Black’s Law Dictionary (7th ed. 1999). And in civil
contexts, Arizona courts have defined the objective “probable cause” standard as a
reasonable belief of a “good chance” of establishing a claim to a jury, Chalpin v. Snyder,
207 P.3d 666, 673 (Ariz. Ct. App. 2008) (affirming the “good chance” definition of
“probable cause” in malicious prosecution cases), or a “substantial likelihood of success,”
In re Estate of Shumway, 9 P.3d 1062, 1066–67 (Ariz. 2000) (defining “probable cause” in
a will contest case). Thus, as a shorthand, in a probable validity hearing under A.R.S. § 12-
2410, a court must determine if it can reasonably conclude that there is a “good chance” or
“substantial likelihood” that the applicant’s claim is meritorious.
Lastly, Plaintiff moves for discovery related to the aforementioned prejudgment
remedies under Federal Rule of Civil Procedure 69, which permits discovery in aid of a
judgment.
III. ANALYSIS
A. Statutory Grounds for Issuance of Writ of Attachment
Pursuant to the provisional remedy statutory requirements, Plaintiff filed affidavits
as required by A.R.S. § 12-1522 in conjunction with its Application (Doc. 1-1 at 108–13,
Meece Aff.; Doc. 1-1 at 114–15, Sixkiller Aff.), and declarations in support of its Reply
(Doc. 47-1, Meece Decl.; Doc. 47-2, Backie Decl.), to try to make a factual showing that
it meets the statutory grounds for issuance of a writ of attachment under A.R.S. § 12-
1521(1). (Sixkiller Aff. ¶ 2 (“I prepared and reviewed the Application, which entitles
Plaintiff to the provisional remedy of attachment pursuant to A.R.S. § 12-1521(1) because
this action is based upon an implied contract that has no security for payment.” (emphasis
added)).)
Plaintiff’s theory of implied contract—upon which it bases its contention that the
grounds for issuance of a writ of attachment under A.R.S. § 12-1521(1) are met—arises
from the two claims for which it seeks the writ: Count 1, for Unjust Enrichment, and Count
4, for Money Had and Received. (Compl. ¶¶ 63–82, 114–22.) The parties dispute whether
those claims are based on an implied contract of the sort contemplated in A.R.S. § 12-
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1521(1), particularly in light of the fact that Plaintiff’s claims depend on the fact that no
contract in fact exists between Plaintiff and Defendant.
In its Reply, Plaintiff argues that it need not show that this is an action based on
implied contract, because Plaintiff clearly meets the statutory requirements of A.R.S. § 12-
1521(3) based on the fact that this is an action for damages against a defendant not residing
in this state. (Reply at 3; Pl.’s Supp. Br. at 2–3.) Plaintiff is correct; it is undisputed that
this is an action for damages against Defendant, which does not reside in Arizona, meeting
the requirements of A.R.S. § 12-1521(3). Although A.R.S. § 12-1522 requires that the
affidavit supporting an application for a writ of attachment include a showing of statutory
grounds for issuance, and the Sixkiller Affidavit only attempts to show that this is an action
based on contract for payment of money not fully secured by real or personal property
under A.R.S. § 12-1521(1) (Sixkiller Aff. ¶ 2), the Court finds that the allegations in the
Complaint—which Plaintiff verified—are sufficient to demonstrate that the requirements
of A.R.S. § 12-1521(3) are met and to provide notice thereof to Defendant. As a result,
Plaintiff has shown that this case is one in which it may seek prejudgment attachment of
Defendant’s property under A.R.S. § 12-1521.1
B. Statutory Grounds for Issuance of Writ of Garnishment
With regard to its application for a writ of garnishment, Plaintiff submitted a
statement meeting the requirements of A.R.S. § 12-1572. (Applic. at 6–9.) Defendant
raised three objections to the application, but none prevail in this context. First, Defendant
argues that Plaintiff may not seek a prejudgment garnishment on tort claims, which are by
their nature unliquidated as to liability and amount (Opp’n at 12–13), but neither of the two
claims upon which Plaintiff seeks prejudgment garnishment—Unjust Enrichment and
Money Had and Received—are tort claims under Arizona law; they are equitable
restitution claims. E.g., Span v. Maricopa Cnty. Treasurer, 437 P.3d 881, 886 (Ariz. Ct.
App. 2019). Second, Defendant contends Plaintiff’s statement regarding Defendant’s
property the garnishees control is insufficient due to a lack of specificity (Opp’n at 13), but
1 The Court need not examine Plaintiff’s alternative argument that this is a case in which
the Court can issue a writ of attachment for a debt not yet due under A.R.S. § 12-1523.
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by its plain language, A.R.S. § 12-1572 does not require specificity beyond that which
Plaintiff provided. And third, Defendant argues Plaintiff may not seek to serve a writ of
garnishment outside of Arizona (Opp’n at 13–14), but Plaintiff permissibly seeks to serve
writs on Arizona branches of interstate banks. Plaintiff’s statement supporting its
application for a writ of garnishment thus meets the requirements of A.R.S. § 12-1572.
C. Probable Validity of Plaintiff’s Claims
On Defendant’s request, the Court held a hearing under A.R.S. § 12-2410 to
consider the probable validity of Plaintiff’s claims, that is, whether Plaintiff has shown that
there is a “good chance” or “substantial likelihood” that Count 1, for Unjust Enrichment,
or Count 4, for Money Had and Received, have merit. (Docs. 48, 51.)
Under Arizona law, “[u]njust enrichment occurs when one party has and retains
money or benefits that in justice and equity belong to another.” Loiselle v. Cosas Mgmt.
Grp., LLC, 228 P.3d 943, 946 (Ariz. Ct. App. 2010). To prevail on an unjust enrichment
claim, a party must prove: “(1) an enrichment; (2) an impoverishment; (3) connection
between the enrichment and the impoverishment; (4) the absence of justification for the
enrichment and impoverishment, and (5) the absence of a remedy at law.” Span, 437 P.3d
at 886. “Unjust enrichment is a means of restitution, which is a flexible, equitable remedy
that looks to the ties of natural justice and equity to make compensation for the benefits
received.” Id. (quotations and citation omitted). Recovery under a theory of unjust
enrichment, or quantum meruit, “presupposes that no enforceable written or oral contract
exists.” See Levine v. Haralson, Miller, Pitt, Feldman, & McAnally, P.L.C., 418 P.3d 1007,
1010 (Ariz. Ct. App. 2018). Relatedly, in Arizona, a claim for money had and received is
a species of unjust enrichment that contemplates a situation in which a defendant possesses
money belonging to the plaintiff “which in equity and good conscience” the defendant
should return to the plaintiff. Copper Belle Mining Co. of W. Va. v. Gleeson, 134 P. 285
(Ariz. 1913).
Plaintiff characterizes its relationship with Defendant as one in which no present
contractual relationship exists, relying for that conclusion on the termination of the Teamup
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Agreement by its terms when Defendant’s proposed arrangement with the Arizona
Cardinals organization fell through as well as the fact that Plaintiff never signed the draft
of a similar agreement with Defendant in conjunction with the Phoenix Suns organization.
(E.g., Pl.’s Supp. Br. at 4–5.) Among other things, Plaintiff contends it “has received no
value from any purported relationship with the Suns” and that the $113k worth of products
and services it received from Defendant over the relevant period—a little more than ten
percent of the amount it paid to Defendant—is “de minimis.” (Pl.’s Supp. Br. at 5–6.)
For its part, Defendant characterizes the relationship as “a partnership to help Clutch
grow its Acronis-related business, pursuant to which Clutch agreed to minimum
technology consumption targets and Acronis invested in marketing assets to help Clutch
grow its business to achieve those targets.” (Def,’s Supp. Br. at 5.) Defendant argues that
“Clutch now attempts to recast this relationship as an unauthorized charge for marketing
services in order to avoid the terms it agreed to and operated under,” and in doing so,
“Clutch ignores the structure and purpose of the Teamup Agreement and the benefits
Clutch has requested received and accepted—as well as the fact that Clutch continues to
use and re-sell Acronis’s technology pursuant to the Teamup Agreement to this day.”
(Def.’s Supp. Br. at 5.)
It is clear from the record that Plaintiff indeed continues to receive more than “de
minimis” products and services from Defendant, which goes directly to Plaintiff’s ability
to prove that there is an absence of justification for the alleged enrichment and
impoverishment in its claim for Unjust Enrichment. Aside from the $113k in products and
services Plaintiff received, the evidence shows Plaintiff received substantial marketing and
other benefits, including advertisements of its logo on video clips from Phoenix Suns
games, a co-hosting arrangement with Defendant at the Waste Management Open golf
tournament valued at $30k or more, and attendance at Arizona Cardinals and Phoenix Suns
games. (E.g., Def.’s Supp. Br. at 4.)
Couched in contractual terms, it remains unclear at this stage whether the agreement
between Plaintiff and Defendant is one the Court should infer in law, as Plaintiff proposes
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to receive the equitable restitution it seeks, or one that is implied in fact based on the
parties’ agreements to date as well as their conduct. See Barmat v. John and Jane Doe
Partners A-D, 747 P.2d 1218, 1220–21 (Ariz. 1987); USLife Title Co. of Ariz. v. Gutkin,
732 P.2d 579, 584 (Ariz. Ct. App. 1986) (stating an implied in fact contract “is proved by
circumstantial evidence,” and “the existence of a contract specifically governing the rights
and obligations of each party precludes recovery for unjust enrichment”). Plaintiff argues
that, in this instance, any agreement could not be implied in fact because the statute of
frauds prohibits an unwritten agreement that will not be performed within one year. (Pl.’s
Supp. Br. at 8.) Defendant counters that the doctrine of partial performance, which the facts
indicate occurred here, removes an agreement from the statute of frauds where acts “cannot
be explained in the absence of the contract” and are “unequivocally referable” to the alleged
contract. (Def.’s Supp. Br. at 5 (citing Owens v. M.E. Schepp Ltd. P’ship, 182 P.3d 664,
668–69 (Ariz. 2008)).) While Plaintiff contends that the parties’ relationship was consistent
with “ongoing negotiations” instead of a contractual relationship (Pl.’s Supp. Br. at 9), that
is at least a factual question that, at this point, remains unresolved.2
In short, upon considering the parties’ arguments at the hearing as well as the
evidence they presented in conjunction with their briefing, the Court is not convinced at
this stage that there is a good chance or a substantial likelihood that Plaintiff’s claims have
merit or that Defendant’s defenses do not.3 As a result, the Court must conclude Plaintiff
is not entitled to the prejudgment remedies it seeks, and the Court will also deny Plaintiff’s
request for pre-judgment discovery in aid of enforcement of the requested writs.
. . .
2 In its Supplemental Brief, Defendant also raises the doctrine of voluntary payments under
Merrill v. Gordon, 140 P. 496 (Ariz. 1914), and its progeny. (Def.’s Supp. Br. at 8–9.)
Plaintiff has not yet had the opportunity to respond to that argument, so the Court does not
rely on it to reach its decision here.
3 Read together with the provisional remedy procedural statutes, the writ of attachment
statute, A.R.S. § 12-1521, and the writ of garnishment statute, A.R.S. § 12-1572, both
imply that the Court must make a probable validity determination of sum certain
“damages” that Plaintiff seeks as the amount of the requested provisional remedy
judgment. (See Reply at 3–4; Def.’s Supp. Br. at 9–10; Pl.’s Supp. Br. at 7.) Based on the
evidence cited infra as well as the lack of certainty as to Plaintiff’s claimed attorney’s fees,
the Court would also find that Plaintiff has failed to demonstrate sum certain damages here.
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IT IS THEREFORE ORDERED denying Plaintiff’s Verified Application for Pre-
Judgment Provisional Remedies (After Notice) and Motion for Pre-Judgment Discovery in
Aid of Enforcement (Doc. 1-1 at 91–135).
Dated this 12th day of May, 2026.
Honorable John J. Tuchi
United States District Judge
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