Bibb County School District v. Dallemand, et Al.MOTION to Dismiss Complaint re Complaint, :M.D. Ga.January 17, 2017IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION BIBB COUNTY SCHOOL DISTRICT, Plaintiff, v. Civil Action File No.: 5:16-cv-00549-MTT ROMAIN DALLEMAND, THOMAS TOURAND, PROGRESSIVE CONSULTING TECHNOLOGIES, INC., ISAAC CULVER, III, COMPTECH COMPUTER TECHNOLOGIES, INC., ALLEN J. STEPHEN, III, PINNACLE/CSG, INC., and CORY MCFARLANE, Defendants. PROGRESSIVE CONSULTING TECHNOLOGIES, INC. AND ISAAC CULVER, III’S 12(B)(6) MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION TO COMPEL ARBITRATION NOW COME, Progressive Consulting Technologies, Inc. and Isaac Culver, III (hereinafter referred to as the “Progressive Defendants”), by and through undersigned counsel of record, and pursuant to Fed.R.Civ.P. 12(b)(6), hereby move this court to dismiss Plaintiff’s Complaint for failure to state a claim against the Progressive Defendants upon which relief can be granted. In the alternative, the Progressive Defendants move to compel Plaintiff’s claims against the Progressive Defendants to arbitration pursuant to Section 6.04 of the Services Agreement between Plaintiff and the Progressive Defendants. A brief in support of this motion is filed herewith. [signature on following page] Case 5:16-cv-00549-MTT Document 25 Filed 01/17/17 Page 1 of 4 Respectfully submitted this 17th day of January, 2017. Goodman McGuffey LLP Attorneys for Progressive Consulting Technologies, Inc., and Isaac Culver, III By: /s/ ELISSA B. HAYNES ROBERT A. LUSKIN GA State Bar No. 004383 rluskin@gmlj.com ELISSA B. HAYNES GA State Bar No. 804466 ehaynes@gmlj.com 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 (404) 264-1500 Phone (404) 264-1737 Fax Case 5:16-cv-00549-MTT Document 25 Filed 01/17/17 Page 2 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION BIBB COUNTY SCHOOL DISTRICT, Plaintiff, v. Civil Action File No.: 5:16-cv-00549-MTT ROMAIN DALLEMAND, THOMAS TOURAND, PROGRESSIVE CONSULTING TECHNOLOGIES, INC., ISAAC CULVER, III, COMPTECH COMPUTER TECHNOLOGIES, INC., ALLEN J. STEPHEN, III, PINNACLE/CSG, INC., and CORY MCFARLANE, Defendants. CERTIFICATE OF SERVICE This is to certify that I electronically filed this PROGRESSIVE CONSULTING TECHNOLOGIES, INC. AND ISAAC CULVER, III’S 12(B)(6) MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION TO COMPEL ARBITRATION with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to the following attorneys of record: W. Warren Plowden, Jr., Esq. warren.plowden@jonescork.com Thomas W. Joyce, Esq. Tom.joyce@jonescork.com Brandon A. Oren, Esq. Brandon.oren@jonescork.com Jones Cork, LLP 435 Second Street PO Box 6437 Macon, GA 31208-6437 Counsel for Plaintiff Case 5:16-cv-00549-MTT Document 25 Filed 01/17/17 Page 3 of 4 Jack L. McLean Jr., Esq. Mccl3690@comcast.net Jack L. McLean Jr. & Company LLC 1367 East Lafayette St., Ste. A Tallahassee, FL 32301 Counsel for Defendants Pinnacle/CSG, Inc. and Cory McFarland William H. Turner, Jr., Esq. Turner & Lawrence, P.C. 423 S. Mulberry Street Jackson, GA 30233 Bill@turnerlawrence.com Counsel for Defendant Thomas Tourand Richard W. Gerakitis, Esq. Richard.gerakitis@troutmansanders.com Lindsey B. Mann, Esq. Lindsey.mann@troutmansanders.com 5200 Bank of America Plaza 600 Peachtree Street NE Atlanta, GA 30308 Counsel for CompTech Computer Technologies, Inc. and Allen J. Stephen, III This 17th day of January, 2017. /s/ ELISSA B. HAYNES ELISSA B. HAYNES GA State Bar No. 804466 ehaynes@gmlj.com Goodman McGuffey LLP 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 (404) 264-1500 Phone (404) 264-1737 Fax 2224-0268/Doc ID #4165877 Case 5:16-cv-00549-MTT Document 25 Filed 01/17/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION BIBB COUNTY SCHOOL DISTRICT, Plaintiff, v. Civil Action File No.: 5:16-cv-00549-MTT ROMAIN DALLEMAND, THOMAS TOURAND, PROGRESSIVE CONSULTING TECHNOLOGIES, INC., ISAAC CULVER, III, COMPTECH COMPUTER TECHNOLOGIES, INC., ALLEN J. STEPHEN, III, PINNACLE/CSG, INC., and CORY MCFARLANE, Defendants. PROGRESSIVE CONSULTING TECHNOLOGIES, INC. AND ISAAC CULVER, III’S BRIEF IN SUPPORT OF THEIR 12(B)(6) MOTION TO DISMISS OR IN THE ALTERNATIVE MOTION TO COMPEL ARBITRATION Progressive Consulting Technologies, Inc. and Isaac Culver, III (collectively referred to as the “Progressive Defendants”) hereby submit this Brief in Support of their Motion to Dismiss or in the Alternative, Motion to Compel Arbitration, and show this Honorable Court as follows: I. STATEMENT OF FACTS Plaintiff Bibb County School District (“BCSD”) filed the subject lawsuit as a result of Defendants’ alleged scheme and acts of defrauding Plaintiff in excess of $7,865,200.00 in funds during 2012 and 2013. For purposes of this motion and brief in support thereof, the Progressive Defendants incorporate by reference paragraphs 14 through 27 of Plaintiff’s Complaint, which Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 1 of 20 2 identify the parties involved in this litigation and the nature of the underlying “Technology Project”, as if fully re-stated herein. On June 25, 2012, BCSD solicited public Request for Qualifications (“RFQ”) No. 12-72 for Technical Project Management Services for the Bibb County Technology Project. (Pl.’s Compl., ¶ 39). This Request encouraged companies to submit their qualifications in the event they were interested in becoming the Technology Project Manager for BCSD. Id. Defendant Progressive Consulting Technologies, Inc. (“Progressive”) was one of the three companies that were pre- qualified by BCSD’s review panel for RFQ 12-72. Id. at ¶ 42. As a result, on September 17, 2012, Defendant Isaac Culver, III, Chief Executive Officer of Progressive, submitted a “Contract Administration Plan” which included proposed hourly rates for Progressive’s personnel, in the event Progressive was selected for the position. Id. at ¶ 45. Progressive was eventually selected by the BCSD Board for the Technical Project Manager position and on September 24, 2012, BCSD and Progressive executed a “Services Agreement”. Id. at ¶ ¶ 49. 50. As Technical Project Manager, one of Progressive’s responsibilities was to upgrade the BCSD accounting and financial software. Id. at ¶ 61. Plaintiff contends that the Services Agreement between Plaintiff and Progressive contained a significantly increased schedule for hourly rates” for Progressive personnel compared to those rates which were initially submitted in the “Contract Administration Plan”. Plaintiff further contends that it was never advised of nor did it approve these new rates or even the Services Agreement itself which was signed by both BCSD and Progressive. Id. at ¶ 50. In accordance with the Services Agreement, BCSD prepared Purchase Order No. 70-36372 for $500,000.00 made payable to Progressive for technology services. Id. at ¶ 53. Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 2 of 20 3 Following the execution of the Services Agreement between Plaintiff and Progressive, pandemonium ensued in the Bibb County School District. On December 10, 2012, Superintendent Dallemand removed former BCSD Chief Financial Officer Ron Collier from his position after he had expressed concerns surrounding Dallemand’s expenditures of BCSD’s funds. Id. at ¶ 55. Two days later, Dallemand assigned Sharon Roberts to the duties and responsibilities of CFO. Id. at ¶ 56. Over the next several weeks, Plaintiff contends that the Defendants collectively defrauded BCSD of money and property to Defendants’ benefit. Id. at ¶ 137-138. Specifically, Plaintiff contends that Defendants demanded that Ms. Roberts wire $3,247,200.00 of BCSD funds to pay for software from Defendant Pinnacle and $3,768,000.00 to Defendant CompTech for the purchase of 15,000 NComputing devices for BCSD. Id. at ¶ ¶ 70, 91. Plaintiff’s Complaint further contends that these purchases were fraudulent and made without Plaintiff’s approval. Additionally, Plaintiff states that it never received the Pinnacle software and was unable to make use of the NComputing devices due to software compatibility issues which Defendants allegedly should have known about. Id. at ¶ ¶ 79, 104. Plaintiff’s ninety-seven (97) page complaint contains an array of allegations against the Progressive Defendants as part of a purported scheme to defraud Plaintiff. As to the Progressive Defendants, Plaintiff asserts claims of federal and Georgia RICO violations, fraud, breach of contract, negligence, unjust enrichment and inducing and aiding breach of fiduciary duty. Each of these claims, however, fail to pass muster under the Federal Rules of Civil Procedure and interpreting case law and should therefore be dismissed. Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 3 of 20 4 II. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(6) permits dismissal where a plaintiff’s complaint fails to state a claim upon which relief can be granted. Federal Rule of Civil Procedure 8(a)(2) provides additional guidance when determining what constitutes the requisite well-pleaded complaint. Fed.R.Civ.P. 8(a)(2) states that “[a] pleading that states a claim for relief must contain…a short and plain statement of the claim showing that the pleader is entitled to relief…” In Bell Atlantic Corp. v. Twombly, 550 U.S. 544(2007), the Supreme Court examined these federal rules and set forth the applicable pleading standard which we know today: While a complaint…does not need detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do,…Factual allegations must be enough to raise a right to relief above the speculative level,…on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Id. at 555 (citations and footnote omitted). In the context of a motion to dismiss, courts “must take all the factual allegations in the complaint as true, [but] are not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). For a plaintiff to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal punctuation omitted). Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 4 of 20 5 III. ARGUMENT AND CITATIONS OF AUTHORITY A. Counts I, II, III and VII of Plaintiff’s Complaint are barred by the applicable statutes of limitation. At the outset it is important to note that many of Plaintiff’s claims are barred by the applicable statutes of limitation. While the Progressive Defendants understand that matters dealing with statutes of limitation are not typically dismissed at this stage of litigation, such is not the case where Plaintiff’s Complaint alleges facts to support a defense based on the applicable statute of limitations. Plaintiff’s Complaint essentially creates a timeline of events as to when each purported act of the Progressive Defendants occurred. Starting with Counts I and II of Plaintiff’s Complaint which seek to hold the Progressive Defendants liable for violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO) Act and Georgia RICO Act, Paragraph 139(B)(i) states: On December 13, 2012, Defendants Progressive and Culver having devised a scheme with other Defendants to defraud BCSD and for purposes of executing such scheme, fraudulently executed a Project Manager’s Certification for Payment representing to BCSD that payment of the fraudulent Pinnacle Invoice was authorized and proper, and that the Pinnacle Items were appropriate when Defendants Progressive and Culver knew that they were not. Defendants Progressive and Culver transmitted this document or caused this document to be transmitted by write in interstate commerce… The statute of limitations for civil RICO actions is four years. McCaleb v. A.O. Smith Corp., 200 F.3d 747,751 (11th Cir. 2000); See also Klehr v. A.O. Smith Corp., 521 U.S. 179, 183 (1997). In the context of a civil RICO action, the four year time period “begins to accrue as soon as the plaintiff discovers, or reasonably should have discovered, both the existence and source of his injury and that the injury is part of a pattern.” McCaleb, 200 F.3d 747 at 751 (internal citations and punctuation Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 5 of 20 6 omitted). Given that Plaintiff’s Complaint clearly references December 13, 2012 as the first date for which the Progressive Defendants purportedly devised a scheme to defraud Plaintiff, it therefore follows that Plaintiff had discovered or at the very least, reasonably should have discovered a potential RICO violation at that point in time, yet suit was not filed in this matter until December 15, 2016. Further, at no point in Plaintiff’s ninety-seven (97) page complaint is there a mention of a date in which such fraudulent scheme was discovered. Plaintiff’s state law claims of fraud and negligence are similarly barred under the applicable statutes of limitation. Count III of Plaintiff’s Complaint for fraud is barred by the four year statute of limitation set forth in O.C.G.A. § 9-3-31 whereas Count VIII, Plaintiff’s negligence claim, must have been brought within two years of the act giving rise such negligence claim. See O.C.G.A. § 9- 3-33. As with Plaintiff’s RICO claims, the statute of limitations for fraud begins to accrue at the time Plaintiff discovers such fraud or by reasonable diligence, should have discovered the fraud. O.C.G.A. § 9-11-96; See also Dunn v. Towle, 170 Ga. App. 487, 488 (1984). Paragraph 167 of Plaintiff’s Complaint lists several dates of each purported fraudulent and/ or negligent act involving the Progressive Defendants, many of which occurred over four years before filing the subject lawsuit. For example, Plaintiff contends that on September 17, 2012, the Progressive Defendants fraudulently represented to BCSD’s Board the hourly rates that Progressive intended to charge for work under the Services Agreement and on December 13, 2012 the Progressive Defendants fraudulently represented to BCSD’s employees that the purchase of the Pinnacle items was authorized and lawful. (Pl.’s Compl., ¶ 167(I), (O).) The face of Plaintiff’s Complaint shows that Plaintiff knew or reasonably should have known of purported fraud as early Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 6 of 20 7 as September 17, 2012, thus Plaintiff’s fraud and negligence claims are also barred by the applicable statutes of limitation. B. Plaintiff’s Complaint fails to sufficiently plead the essential elements of a civil Racketeer Influenced and Corrupt Organizations Act (RICO) claim against the Progressive Defendants. The Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted by Congress in 1970 to prohibit “racketeering activity” connected to interstate commerce. Ray v. Spirit Airlines, Inc., 767 F.3d 1220, 1224 (11th Cir. 2014); 18 U.S.C. § 1962. Count I of Plaintiff’s Complaint seeks to hold the Progressive Defendants liable pursuant to 18 U.S.C. § 1962(c), § 1962(d), and § 1964(c). Section 1962(c), which addresses the prohibited activities under the RICO Act, states: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C. § 1962(d) provides that “it shall be unlawful for any person to conspire to violate any of the provisions of subsection…(c) of this section.” To succeed on a civil RICO claim, a plaintiff must sufficiently plead the following elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). If and when a plaintiff is able to establish each of these four essential elements, recovery may be sought pursuant to Section 1964(c) which provides: Any person injured in his business or property by reason of a violation of Section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of suit, including a reasonable attorney’s fee… Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 7 of 20 8 Plaintiff’s Complaint fails to state an actionable civil RICO claim against the Progressive Defendants. Specifically, Plaintiff has failed to sufficiently plead that the Progressive Defendants were engaged in predicate acts which constitute a “pattern of racketeering activity”, the existence of a RICO enterprise, and the existence of a conspiracy to commit a violation of the RICO Act. 1. Plaintiff’s Complaint fails to sufficiently allege a pattern of racketeering activity against the Progressive Defendants. A civil RICO plaintiff must prove that a defendant participated in an illegal enterprise through a pattern of racketeering activity. 18 U.S.C. § 1962(c). The RICO Act defines “racketeering activity” broadly and includes, among other things, predicate acts such as mail and wire fraud. 18 U.S.C. § 1961(1). Further, in order for a predicate act or acts to constitute a “pattern of racketeering activity”, there must be “at least two acts of racketeering activity…” 18 U.S.C. § 1961(5). In cases such as the one at hand, where Plaintiff’s section 1962(c) claim (against the Progressive Defendants) is based entirely on the predicate acts of mail fraud, wire fraud, transportation of stolen goods and the sale or receipt of stolen goods, Plaintiff must comply with the heightened pleading standard found in Fed.R.Civ.P. 9(b) which provides “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” See American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (2010). The predicate acts of mail and wire fraud consist of “(1) an intentional participation in a scheme to defraud a person of money or property, and (2) the use of the mails [or wires] in furtherance of the scheme.” U.S. v. Downs, 870 F.3d 613, 615 (1989) (emphasis added). Before a plaintiff, who is alleging mail and/or write fraud, can satisfy the heightened pleading requirements of Fed.R.Civ.P. 9(b) Plaintiff must allege: “(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 8 of 20 9 content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.” American Dental Ass’n, 605 F.3d 1283 at 1291. (internal citations and quotations omitted.) Plaintiff’s Complaint is inundated with legal conclusions in a likely attempt to satisfy the elements of a civil RICO claim against the Progressive Defendants. Looking to Count I of Plaintiff’s Complaint and the first alleged “racketeering act” of the Progressive Defendants, Plaintiff contends that the Progressive Defendants “fraudulently executed a Project Manager’s Certification for Payment representing to BCSD that payment of the fraudulent Pinnacle Invoice was authorized and proper, and that the Pinnacle Items were appropriate when Defendants Progressive and Culver knew they were not” and transmitted this document by wire and mail in interstate commerce. (Pl.’s Compl., ¶ 139(B)(i)). Plaintiff’s Complaint further alleges that the Pinnacle Invoice itself, which was prepared by Defendants Pinnacle and McFarlane, was fraudulent and that the Progressive Defendants, along with the Defendants Dallemand, Tourand, Pinnacle and McFarlane, “fraudulently caused BCSD to overpay for unneeded Pinnacle Items.” Id. at ¶ ¶ 65-68. Plaintiff has failed to plead the Progressive Defendants’ predicate acts of mail and wire fraud with sufficient particularity as required by Fed.R.Civ.P 9(b). In regards to the Manager’s Certification for Payment of the Pinnacle Invoice, Plaintiff’s Complaint states: Defendants Progressive and Culver transmitted this document or caused this document to be transmitted by wire in interstate commerce, placed this document in a post office or authorized depository for mail matter to be sent or delivered by the U.S. Postal Service, and/or by a private or commercial carrier in interstate commerce…” (Pl.’s Compl., ¶ 139(B)(i)). Plaintiff attempts to spout off a host of possible scenarios involving mail and or wire fraud but cannot even specify the precise method used or the date in which the alleged Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 9 of 20 10 mail or wire fraud occurred. Likewise, Plaintiff’s Complaint is devoid of any indication as to what the Progressive Defendants gained by the purportedly fraudulent Pinnacle Invoice, thus the requisite intent element for mail and wire fraud is lacking. The Complaint merely states that Defendants Pinnacle and McFarlane, rather than the Progressive Defendants, received the $3,247,000.00 which BCSD paid for the Pinnacle items. Id. at ¶ 139(C)(v). These sweeping allegations lack the specificity required to allege the existence of mail or wire fraud. Plaintiff’s additional allegations of the Progressive Defendants’ purported racketeering acts are also insufficiently pled. For example, Plaintiff contends that the Progressive Defendants “received an inexpensive Ingram Micro server” from Pinnacle and “delivered it to BCSD’s technology department representing that it contained the Pinnacle Items for which BCSD had paid $3,247,200.00 when Defendants Progressive and Culver knew that it did not.” Id. at ¶ 139(B)(iii)(emphasis added). Again, Plaintiff’s Complaint fails to state what alleged gain the Progressive Defendants stood to receive from this predicate act. Plaintiff’s blanket allegations also fail to specify the particular person(s) responsible for the purported misrepresentations and/or statements. Rather, the Complaint simply names the corporate defendant and associated CEO or President as the “person” who made such misrepresentation and/or statement.1These allegations amount to nothing more than legal conclusions camouflaged as facts which this Court is not bound to accept under the pleading standards set forth in Bell Atlantic Corp. v. Twombly and Papasan v. Allain, supra. 1 See e.g. Pl.’s Compl. ¶ 139(B)(i) (“On December 13, 2012 Defendants Progressive and Culver…fraudulently executed a Project Manager’s Certification for Payment representing to BCSD that payment of the fraudulent Pinnacle invoice was authorized and proper…”) (emphasis added). Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 10 of 20 11 2. Plaintiff’s Complaint fails to allege the existence of a RICO enterprise. Another essential element of a civil RICO claim is the existence of an “enterprise” which the RICO Act defines as “any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. §§ 1962(c), 1961(4). A violation of Section 1962(c) further requires that the defendant participate in the operation or management of the enterprise’s affairs as opposed to merely conducting the defendant’s own affairs. Reves v. Ernst & Young, 507 U.S. 170, 185 (1993). Here, Plaintiff has filed suit against numerous corporations and individuals alike. Plaintiff contends that “[c]ollectively, the Defendants formed an enterprise that was engaged in, or the activities of which affected, interstate commerce.” (Pl.’s Compl., ¶ 136). Plaintiff’s Complaint alleges that each Defendant was associated with the purported enterprise and that Defendants collectively conspired to and participated in racketeering activity to intentionally defraud Plaintiff of its money and property to Defendants’ benefit. Id. at ¶ 137. Although courts tend to broadly interpret the “enterprise” requirement of a civil RICO claim, some sort of “structure” is required. A group of individuals may qualify as a RICO enterprise, specifically, an “association-in-fact enterprise” if the following structural features exist: “(1) a purpose; (2) relationships among those associated with the enterprise; and (3) longevity sufficient to permit those associates to pursue the enterprise’s purpose.” Boyle v. U.S., 556 U.S. 938, 946-47 (2009). In Boyle, a “core group” of individuals was responsible for the thefts of over thirty night-deposit boxes. 556 U.S. 938 at 941. The core group of participants “met beforehand to plan Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 11 of 20 12 the crime, gather tools…, and assign the roles that each participant would play…” Id. It was also determined that the group members split the proceeds from the numerous thefts. Id. Here, Plaintiff’s Complaint identifies each defendant and contains blanket allegations that Defendants worked collectively to defraud Plaintiff. Plaintiff’s Complaint also includes allegations as to how the fraud was perpetrated. What Plaintiff’s Complaint lacks, however, is an explanation of the working relationships among each defendant. The only relationship which is arguably established by Plaintiff is that between Dallemand, on behalf of Plaintiff, and Progressive by way of the “Services Agreement”. The Complaint contains nothing to suggest interconnectedness among the remaining Defendants nor does the Complaint identify contracts or other agreements between the other Defendants. Additionally, contrary to Boyle, Plaintiff’s Complaint does not contend that Defendants met or conferred to plan their purported scheme, assign roles or discuss the division of proceeds. Plaintiff has failed to sufficiently plead the structural elements needed for this Court to find the existence of a RICO enterprise. 3. Plaintiff has failed to sufficiently plead the existence of a conspiracy claim under 18 U.S.C. § 1962(d). 18 U.S.C. § 1962(d) makes it illegal for any person to conspire to violate any of the substantive provisions of the RICO Act. To succeed on a Section 1962(d) conspiracy claim, a Plaintiff must either show “that the defendant agreed to the overall objective of the conspiracy” or show that “the defendant agreed to commit two predicate acts.” American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1293 (2010). A Plaintiff must also comply with the pleading standards set forth in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal , supra, which state that the court’s “first task is to eliminate any allegations in Plaintiff’s complaint that are merely legal conclusions” before addressing the Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 12 of 20 13 remaining factual allegations to see if they are sufficiently pled. Id. at 1293-94. As to the Progressive Defendants, Plaintiff’s Complaint merely contains unsupported legal conclusions which are insufficient to state a claim under Section 1962(d) and warrant dismissal. C. As with Plaintiff’s federal civil RICO claims, the Progressive Defendants are entitled to a dismissal of Counts III, V, IX and XI of Plaintiff’s Complaint. 1. Count III of Plaintiff’s Complaint fails to plead fraud with the specificity required under Federal Rule of Civil Procedure 9(b) and must therefore be dismissed. A civil action for fraud requires five essential elements: “a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” Avery v. Chrysler Motors Corp., 214 Ga. App. 602, 604 (1995) (quoting Baldwin v. Roberts, 212 Ga. App. 546, 547 (1994)). In order to establish scienter, “a plaintiff must show that the defendant made a knowing misrepresentation with the intent to deceive; an innocent misrepresentation is not enough.” Waithe v. Arrowhead Clinic, Inc., 491 Fed.Appx. 32, 37 (2012). In regards to claims alleging fraudulent concealment of a material fact, a plaintiff must show that the defendant had “a duty to disclose or communicate the fact”. Id. at 38 (quoting Baxter v. Fairfield Fin. Servs., Inc., 307 Ga. App. 286 (2010). Claims of fraud must also be plead with the heightened requirements found in Federal Rule of Civil Procedure 9(b). Specifically, “a plaintiff bringing a fraud claim must allege facts as to time, place, and substance of the defendant’s alleged fraud, specifically the details of the defendants’ allegedly fraudulent acts, when they occurred, and who engaged in them.” Waithe, 491 Fed.Appx. 32 at 37 (quoting Hopper v. Solvay Pharm., Inc., 588 F.3d 1318, 1324 (11th Cir. 2009) (internal quotation marks omitted). Count III of Plaintiff’s Complaint alleges “[t]he Defendants made false representations of material facts to BCSD’s employees which the Defendants knew were false.” (Pls. Compl., ¶ 165). Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 13 of 20 14 The Complaint then contains several broad, vague and over-generalized allegations of fraud which fail to meet the heightened pleading standard set forth in Fed.R.Civ.P 9(b). Similar to the facts and analysis in Waithe, Plaintiff fails to make specific allegations against particular defendants and instead lumps a large group of defendants together for each general claim of fraud. For example, Plaintiff states: On December 18, 2012, Defendants Dallemand, Tourand, Progressive, Culver, Pinnacle and McFarlane made fraudulent representations to BCSD’s employees as to the number of Proscenium Enterprise Suites and related systems and accessories BCSD needed by overcharging BCSD for unneeded equipment when they submitted the fraudulent Pinnacle Invoice for payment. (Pls. Compl., ¶167(G)). Here, and in the remaining allegations of fraud, Plaintiff fails to specify the details of each particular defendant’s role in the purported fraud, the name of each specific individual involved (as opposed to simply stating “Progressive”), and the place where such fraudulent representation took place. Thus, even if this Court finds that Plaintiff’s fraud claims are not barred by the statute of limitations, such claims must still be dismissed for being insufficiently pled. 2. Plaintiff’s Complaint fails to state a claim for breach of contract and unjust enrichment as to Progressive for which relief can be granted. Interestingly, Count V of Plaintiff’s Complaint asserts a breach of contract claim against Progressive and lists various provisions of the contract which Progressive allegedly breached, yet no contract is attached to Plaintiff’s Complaint. Additionally, Plaintiff’s breach of contract allegations fail to set forth the specific provisions of the contract which were purportedly breached. From the face of Plaintiff’s Complaint, it also appears as though Plaintiff is attempting to re- plead claims of fraud as breach of contract claims, thereby making Plaintiff’s breach of contract Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 14 of 20 15 claim merely cumulative in nature. For instance, Plaintiff contends that “[D]efendant Progressive materially breached its contract by, without authority and power, representing to Mrs. Roberts that payment of the fraudulent Pinnacle Invoice was authorized, lawful and proper when Defendant Progressive knew that it was not.” (Pl.’s Compl., ¶192(C).) As discussed in Section (C)(1) above, claims of fraud must be plead with the heightened requirements found in Federal Rule of Civil Procedure 9(b). Despite being camouflaged as breach of contract claims, Plaintiff’s Complaint merely points to various actions, most of which are based on fraud or fraudulent misrepresentations, which Plaintiff arbitrarily contends are in breach of the contract between Plaintiff and the Progressive Defendants. This sort of pleading cannot survive a dismissal under Fed.R.Civ.P. 12(b)(6) and 9(b). Likewise, Count XI of Plaintiff’s Complaint for Unjust Enrichment must be dismissed for failure to state a claim upon which relief can be granted. Paragraph 233 of Plaintiff’s Complaint states that Plaintiff’s unjust enrichment claim “is asserted against all Defendants in the event it is found that a valid contract with each Defendant does not exist or if Defendants contest the validity of the contracts set forth in Counts IV-VII above.” At no point in Plaintiff’s Complaint does Plaintiff assert that there is not a valid contract between Plaintiff and Progressive. Further, Progressive does not dispute the existence of a valid contract. Thus, this claim is rendered moot and should be dismissed. 3. Plaintiff’s Complaint fails to state a claim upon which relief can be granted for inducing and aiding breach of fiduciary duty. Count XI of Plaintiff’s Complaint seeks to hold the Progressive Defendants liable for inducing and aiding “a breach of Defendant Dallemand’s fiduciary duty to BCSD and its Board.” (Pl.’s Compl., ¶ 264). Little needs to be said in regards to this claim as Georgia courts do not Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 15 of 20 16 recognize a cause of action for aiding and abetting breach of fiduciary duty. Official Committee of Unsecured Creditors of PSA, Inc. v. Edwards, 437 F.3d 1145, 1157 (2006); See also Matter of Munford, Inc., 98 F.3d 604, 613 (1996) (“we decline to extend aider and abettor liability to breaches of fiduciary duty concluding that Georgia courts would not recognize such a cause of action.”); Monroe v. Bd. Of Regents of Univ. Sys. Of Ga., 268 Ga. App. 659, 664 (2004) (“Georgia has never recognized a claim for aiding and abetting a breach of fiduciary duty.”) As such, Count XI of Plaintiff’s Complaint must be dismissed. D. In the alternative and as to any claims which this Court believes are not entitled to dismissal or as to those claims which are not addressed in Defendant’s Motion to Dismiss, the Progressive Defendants move to compel arbitration. Paragraph 50 of Plaintiff’s Complaint identifies a September 24, 2012 “Services Agreement” between BCSD and Progressive, though this Agreement is not attached as an exhibit to Plaintiff’s Complaint. Since Plaintiff has identified the “Services Agreement” and even brought claims against the Progressive Defendants based on such Agreement, the same is attached hereto as Exhibit “A”. When determining whether the parties agreed to arbitration “courts generally should apply ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Under Georgia law, “[w]here contract language is unambiguous, no construction is necessary and the court must simply enforce the contract according to its clear terms.” Caswell v. Anderson, 241 Ga. App. 703, 705 (2000). Additionally, both the Federal Arbitration Act (“FAA”) and Georgia Arbitration Code (“GAC”) mandate a court to compel arbitration where the parties have entered into a valid and enforceable arbitration agreement. O.C.G.A. § 9-9-1, et seq; 9 U.S.C. §§ 1, et seq. The FAA further provides that “as a matter of Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 16 of 20 17 federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Dasher v. RBC Bank (USA), 745 F.3d 1111, 1115 (11th Cir. 2014) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983). Section 6.04 of the Services Agreement between BCSD and Progressive states as follows: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the state of Georgia. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of the state of Georgia. Each party shall have the right of discovery set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by mutually agreed upon third party. (Ex. “A”, p. 3) (emphasis added). Each of Plaintiff’s claims against the Progressive Defendants arise out of the Services Agreement between Plaintiff and Progressive. The arbitration provision at issue was drafted broadly and contains nothing to suggest that the parties only meant for certain claims to be arbitrable. Further, there is nothing ambiguous within the language of Section 6.04. Section 6.04 of the Services Agreement clearly and unambiguously states that any claim or controversy arising out of or relating to this Agreement or breach thereof shall be resolved through arbitration. The Progressive Defendants therefore respectfully move this Court for an Order compelling arbitration as to each of Plaintiff’s claims in the event this Court determines such claims are not entitled to dismissal. IV. CONCLUSION For the foregoing reasons, Defendants Progressive Consulting Technologies, Inc. and Isaac Culver, III respectfully request that this Court dismiss each of Plaintiff’s claims against the Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 17 of 20 18 Progressive Defendants, or, in the alternative, Order such claims to arbitration in accordance with Section 6.04 of the Services Agreement between Plaintiff and the Progressive Defendants. Respectfully submitted this 17th day of January, 2017. Goodman McGuffey LLP Attorneys for Progressive Consulting Technologies, Inc., and Isaac Culver, III By: /s/ ELISSA B. HAYNES ROBERT A. LUSKIN GA State Bar No. 004383 rluskin@gmlj.com ELISSA B. HAYNES GA State Bar No. 804466 ehaynes@gmlj.com 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 (404) 264-1500 Phone (404) 264-1737 Fax Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 18 of 20 19 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION BIBB COUNTY SCHOOL DISTRICT, Plaintiff, v. Civil Action File No.: 5:16-cv-00549-MTT ROMAIN DALLEMAND, THOMAS TOURAND, PROGRESSIVE CONSULTING TECHNOLOGIES, INC., ISAAC CULVER, III, COMPTECH COMPUTER TECHNOLOGIES, INC., ALLEN J. STEPHEN, III, PINNACLE/CSG, INC., and CORY MCFARLANE, Defendants. CERTIFICATE OF SERVICE This is to certify that I electronically filed this PROGRESSIVE CONSULTING TECHNOLOGIES, INC. AND ISAAC CULVER, III’S BRIEF IN SUPPORT OF 12(B)(6) MOTION TO DISMISS OR IN THE ALTERNATIVE MOTION TO COMPEL ARBITRATION with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to the following attorneys of record: W. Warren Plowden, Jr., Esq. warren.plowden@jonescork.com Thomas W. Joyce, Esq. Tom.joyce@jonescork.com Brandon A. Oren, Esq. Brandon.oren@jonescork.com Jones Cork, LLP 435 Second Street PO Box 6437 Macon, GA 31208-6437 Counsel for Plaintiff Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 19 of 20 20 Jack L. McLean Jr., Esq. Mccl3690@comcast.net Jack L. McLean Jr. & Company LLC 1367 East Lafayette St., Ste. A Tallahassee, FL 32301 Counsel for Defendants Pinnacle/CSG, Inc. and Cory McFarland William H. Turner, Jr., Esq. Turner & Lawrence, P.C. 423 S. Mulberry Street Jackson, GA 30233 Bill@turnerlawrence.com Counsel for Defendant Thomas Tourand Richard W. Gerakitis, Esq. Richard.gerakitis@troutmansanders.com Lindsey B. Mann, Esq. Lindsey.mann@troutmansanders.com 5200 Bank of America Plaza 600 Peachtree Street NE Atlanta, GA 30308 Counsel for CompTech Computer Technologies, Inc. and Allen J. Stephen, III This 17th day of January, 2017. /s/ ELISSA B. HAYNES ELISSA B. HAYNES GA State Bar No. 804466 ehaynes@gmlj.com Goodman McGuffey LLP 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 (404) 264-1500 Phone (404) 264-1737 Fax Case 5:16-cv-00549-MTT Document 25-1 Filed 01/17/17 Page 20 of 20 EXHIBIT “A” Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 1 of 12 items set forth in Exhibit D as a condition precedent to the obligations of Corporation hereunder SERVICES AGREEMENT THIS SERVICES AGREEMENT ("Agreement") Section 1.09 - Acceptance of Services: Services shall be deemed delivered by Corporation and accepted by Customer upon performance. The Contract is made as ofSept 21. 2012 ("Effective Date") by and between Bibb County School District with offices located at 484 Mulberry Street. Macon. GA. 31201 ("Customed'') and Progressive Consulting Technologies. Inc. with offices located at 971 Washington Avenue. Macon. GA 31201 ("Corporation"). § ARTICLE II; PAYMENTS AND FEE: Section 2.01 - Labor Rates: Article II shall be performed on a time-and-materials/labor- hour basis at the hourly labor rates set forth in Exhibit E, attached hereto and by this reference made a part hereof. The services described in W I T N E S S E T H WHEREAS, Corporation is in the business of Project Management and IT Services; and Section 2.02 - Material Costs: Non-labor expenses incurred by Corporation in performing the services described under Article II shall be reimbursed by Customer at actual cost plus fifteen percent. Such non-labor expenses shall include (but not be limited to) all travel, equipment, and material costs incurred by Corporation in performing the services described in Article II. WHEREAS, Customer desires Corporation to provide technical project management services to Customer. NOW, THEREFORE, in consideration of the mutual benefits of the covenants set forth below, Customer and Corporation hereby agree as follows: Section 2.03 - Invoices: Corporation shall submit invoices for services rendered and costs incurred during a tasking period by the fifteenth day and the twenty-ninth day of the month in which such services were rendered. Customer shall pay such invoice within 30 days of the invoice date. ARTICLE I; SCOPE OF WORI £ Section 1.01 - Recitals: The above identification of parties and recitals are true and correct. Section 2.04 - Late Charges: Any invoiced amount which is not paid by Customer as provided herein shall be increased by a late charge equal to 1-1/2% for each month (or portion thereof) in which such invoiced amount is not paid. Notwithstanding any provision or interpretation to the contrary. Customer failure to pay an invoice by the end of the following month in which such invoice was received by Customer shall constitute a material breach of this Agreement and shall be sufficient cause for the immediate termination of this Agreement by Corporation. Section 1.02 - Scope of Work: Corporation shall perform the services described in Exhibit A which is incorporated herein by this reference ("Contract Services"), services include development of the deliverables listed in Exhibit B ("Deliverables"). Such Section 1.03 - Management Reporting: Corporation shall provide Customer with periodic reports as warranted by the progress of work. Section 1.04 - Personnel: The personnel assigned to perform the Contract Services shall be determined solely by Corporation. Section 2.05 - Insurance: Customer and Corporation shall each maintain at their own expense all necessary insurance, including but not limited to, workmen's compensation, disability, and unemployment insurance as well as public liability, product liability, property damage, and automobile liability insurance against all losses, claims, demands, proceedings, damages, costs, charges and expenses for injuries or damage to any person or property arising out of or in connection with this Agreement which are the result of the fault or negligence of such party. Each party shall provide the other party with certification of such insurance upon request. Section 1.05 - Term: This Agreement shall extend from the Effective Date to September 30. 2013. The estimated period of performance of the Contract Services shall be as set forth in Exhibit C. Section 1.06 - Cooperation: acknowledges that successful performance of the services described under this Article I by Corporation shall require Customer to cooperate with Corporation in good faith and to provide information as may be requested by Corporation from time to time. Customer hereby agrees to provide such good faith cooperation and information. Customer hereby Section 2.06 - Taxes: Customer shall be responsible for the payment of all taxes based upon the Contract Services performed or the Deliverables developed pursuant to this Agreement, except taxes based upon the income of Corporation. Customer shall indemnify Corporation and hold Corporation harmless from any sales, excise or use tax or taxes in lieu thereof including any interest and penalties (except taxes based upon income earned by Corporation pursuant to this Agreement) which way be imposed by any Section 1.07 - Facilities: Exhibit A, the services of Corporation shall be performed at the office facilities of Corporation and the Customer. Unless otherwise set forth in Section 1.08 - Customer Responsibilities: Customer shall be responsible for performing the tasks and providing the FRM 157 V2 Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 2 of 12 governmental authority upon any use, distribution or sublicensing of the Deliverables. Section 4.01 - Warranty: Corporation hereby represents and warrants that the Contract Services shall be performed on a best efforts basis by qualified personnel. ARTICLE 111: INTELLECTUAL PROPERTY SECTION 4.02 - WARRANTY LIMITATION: THE WARRANTY SET FORTH IN SECTION 4.01 IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY CORPORATION UNDER THIS AGREEMENT. WARRANTY MADE BY CORPORATION IN SECTION 4.01, CORPORATION HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Customer shall not Section 3.01 - Confidentiality, disclose the Confidential Information of Corporation without the prior written consent of Corporation, except to employees and consultants of Customer requiring such Confidential Information for purposes of performing this Agreement. The term. "Confidential Information" shall mean all information which is not in the public domain, comes into the possession or knowledge of Customer or Corporation in connection with this Agreement and is clearly marked as proprietary or confidential at the time such information comes into the possession or knowledge of Customer or Corporation. The terms of this Section 3.01 shall survive termination of this Agreement. EXCEPT FOR THE WARRANTIES ALL OF Limitation of Damages: Corporation shall not be liable to Customer under this Agreement for any consequential, exemplary, incidental or punitive damages, regardless of whether Corporation has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding any provision to the contrary, the liability of Corporation for any reason and for any cause of action whatsoever under this Agreement shall be limited to the amount of money received by Corporation pursuant to this Agreement. Section 4.03 Customer and Section 3.02 - Rights to New Ideas: Corporation hereby acknowledge that the services to be provided under this Agreement by Corporation may result in the development of proprietary and secret information, materials, concepts, applications, technologies, systems, solutions, techniques, methods, processes, adaptions and ideas ("Proprietary Information"). Customer hereby agrees that such Proprietary Information shall belong solely and exclusively to Corporation, without regard to the origin thereof, and that Customer shall not disclose such Proprietary Information except for purposes of performing this Agreement. Section 4.04 - Force Majeure: Corporation shall be not liable to Customer for failing to perform its obligations under this Agreement because of circumstances beyond the control of Corporation. Such circumstances shall include, but not be limited to, any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, delays in transportation or deliveries of supplies or materials, acts of God, or any events reasonably beyond the control of Corporation. Section 3.03 - Intellectual Property Rights: hereby agrees that the Deliverables and all materials incidental thereto developed by Corporation under this Agreement shall be the sole and exclusive property of Corporation, and that Corporation shall own all of the rights, title and interests to such Deliverables, including (but not limited to) any and all copyrights, patents, trademarks and trade secrets related to the Deliverables. Customer hereby agrees to cooperate with Corporation in securing or registering any such rights. Customer Section 4.05 - Indemnification: Customer shall indemnify, defend and hold Corporation harmless against any liability arising from or in connection with any use of the Deliverables by Customer or performance of the Contract Services. This Section 4.05 shall survive termination of this Agreement. Section 3.04 -- Employee Pirating: Each party shall not induce or solicit (directly or indirectly) any employee of the other party to leave the employ of such other party or engage the services of such employee (as an employer or otherwise) without the prior written consent of such other party. This Section 3.04 shall survive termination of this Agreement. Section 4.06 - Original Development: Corporation hereby represents and warrants that the Deliverables shall be originally developed by Corporation. Section 3.05 -- Publication: provision to the contrary hereunder, Corporation shall have the right to publish in professional journals and to present to the United States Government, contractors and subcontractors of the United States Government, and members of the community at large the results of the Contract Services and any Proprietary Information or Confidential Information resulting therefrom. Notwithstanding any IS ARTICLE V: TERMINATIOl Section 5.01 - Termination Limitation: This Agreement shall only be terminated as provided under this Article V. Section 5.02 - Right of Termination: Either party may terminate this Agreement upon providing sixty days Termination Notice to the other party. s ARTICLE IV: WARRANT 2 FRM 157 V2 Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 3 of 12 performing the obligations of Customer under this Agreement shall be Section 5.03 -- Termination for Cause: If a party violates its obligations under this Agreement, the other party may terminate the Agreement by sending Termination Notice describing the noncompliance to the other party. Upon receiving Termination Notice describing the noncompliance, the noncomplying party shall have five days from the date of such notice to either cure any such noncompliance or, if the noncompliance cannot be cured within such five day period, to begin curing such noncompliance in good faith. If such noncompliance is not cured within the required five day period, or, if the noncompliance cannot be cured within such five day period, the noncomplying party does not make a good faith effort to begin curing such noncompliance within said five day period, the party providing Termination Notice describing the noncompliance shaii have the right to terminate this Agreement as of the fifteenth day after the date of the Termination Notice, Any controversy or claim Section 6.04 -- Arbitration: arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the state of Georgia Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of the state of Georgia. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by mutually agreed upon third party. Section 6.05 -- Assignment: Assignments of rights hereunder without the prior written consent of Corporation shall be void. Section 6.06 -- Complete Agreement: This Agreement is the sole agreement between the parties relating to the subject matter of this Agreement and supersedes all proposals or prior agreements (oral or written) and all other communications between the parties relating to the subject matter of this Agreement. Section 5.04 - Early Termination: If Corporation terminates service for nonpayment or other default before the end of the Service Commitment, or if Customer terminates service for any reason other than (a) in accordance with the cancellation policy; or (b) pursuant to a change of terms, conditions or rates as set forth below, customer agrees to pay us with respect to each project managed, in addition to all other amounts owed, an Early Termination Fee in the amount of 10% of project price will also be assessed. Section 6.07 -- Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to each other under this Agreement are true, correct and accurate as of the date of this Agreement to the best of their knowledge. Section 5.05 -- Return of Materials: Upon the termination of this Agreement, Customer shall return to Corporation any and all Deliverables and materials incident thereto which are in the possession of Customer or located at the facilities or premises of Customer as of the date of Termination Notice. Section 6.08 -- Amendments and Modifications: A waiver, alteration, modification or amendment of this Agreement shall be void unless such waiver, alteration, modification or amendment is in writing and signed by the respective parties hereto. g ARTICLE VI: MISCELLANEOU: Section 6,09 -- Severability: Agreement is rendered invalid the remaining provisions shall remain in full force and effect. If a provision of this Section 6,01 -- News Releases/Public Announcements: Customer shall not make any public announcements or issue any news releases containing references to this Agreement, the Contract Services, the Deliverables or the working relationship of the Customer and Corporation under this Agreement without the prior written consent and authorization of Corporation, Section 6,10 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision. Section 6,02 -- Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of Corporation as developer and Customer as distributor. Nothing herein shall be construed as creating partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity. Section 6,11 -- Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Section 6.12 -- Governing Law: This Agreement shall be governed by the laws of the State of Georgia, Section 6,03 -- Representatives: The authorized representative of Corporation for purposes of performing the obligations of Corporation under this Agreement shall be Isaac J, Culver. Ill and Dave L, Cartv, authorized representative of Customer for purposes of Section 6,13 -- Notice: All communications shall be in writing and shall be delivered by Certified Mail or by hand to the address set forth below for each respective party: The 3 FRM 157 V2 Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 4 of 12 Customer Bibb County School District 484 Mulberry Street Macon GA31201 IN WITNESS WHEREOF, this Agreement has been executed as of the Effective Date. CUSTOMER: Corporation Progressive Consulting Technologies, Inc. 971 Washington Avenue Macon, GA 31201 Bibb County Schooj/pistrict a_ Notice shall be effective upon receipt. By: Authorized Repiesentative- Pronouns shall refer to Date: > WITNESS: Section 6.14 -- Pronouns/Gender: the masculine, feminine, singular or plural as the context shall require. 1 C « i Waiver of a breach of this Section 6.15 -- Waiver: Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provisions. CORPORATION: [Progressive Consulting Technologies, Inc.] By:. Isaac J.-Culver, III - Pres./CEO t ̂ Date: WITNESS: 4 FRM 157 V2 Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 5 of 12 EXHIBIT A CONTRACT SERVICES Date: 09-24-2012 Progressive Consulting Technologies, Inc. 971 Washington Avenue Macon, GA 31201 Customer: The Bibb County School District 484 Mulberry Street Macon. GA 31201 CONTRACT SERVICES Contract Services shall mean the following: Whereas, Customer has previously requested, pursuant to Exhibit A, certain technical project management services and desires to engage Progressive Consulting on the terms and conditions set forth herein, to perform such services. Unless otherwise set forth in this Exhibit A, the Contract Services shall be performed at the office facilities of Progressive Consulting Technologies, Inc. and the Customer. Customer: Progressive Consulting Technologies, Inc. The Bibb County School District i l u ^ 11-By: By: yCjilver, III - Pres./CEO Isaac J. Authorized Representative Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 6 of 12 EXHIBIT B DELIVERABLES Date: 09-24-2012 Progressive Consulting Technologies, Inc. 971 Washington Avenue Macon, GA 31201 Customer; The Bibb County School District 484 Mulberry Street Macon. GA 31201 DELIVERABLES Deliverables shall mean the following; • Install, relocate, configure, modify and test routers, switches and servers. • Troubleshoot renovation design of wiring, wireless, access, and linkage problems. • Support diagnostics and configuration connectivity of specific servers and entire BCSD network(s). • Collect Performance Measurement information, work progress, delays or deadline slippages, and generate weekly reports on same. • Assist with BCSD infrastructure deployments and technical hardware refresh, renovation, and transition initiatives. Submit a schedule indicating the projected date(s) when each piece of equipment will be installed, and or each data set, application, or operating system is transitioned. • Participate in long-range BCSD system-wide and site-by-site technical infrastructure planning and technical architecture design, renovations, and upgrades. • Develop, plan and maintain documentation necessary for system operations in support of all LAN, WLAN, and VLAN to WAN connectivity. • Define and recommend minimum standards, as applies to network operations, systems operations, system backup and disaster recovery solutions, bandwidth and access to the Internet; and their impact on overall network resourcing and operations. • Oversee the integration of network hardware and software platforms for WAN/LAN and all BCSD network connected systems. • Evaluate and recommend new and evolving networking technologies. A visit to the Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 7 of 12 sites, so that your firm may become familiar with the local conditions and correlate observable conditions in regards to the requirements of the program, schedule and budget • Management of the site and coordination of all construction activities by a full-time Technical Project Manager who shall remain on-site continuously during all technical construction activities. Customer: Progressive Consulting Technologies, Inc. The Bibb County School District /quiver, III - Pres./CEO By: By: Authorized Representative Isaac J. s jnoq £ -3 inoqe jo j Smujow ; e s uo SDLyo asuaon § u! >po |q LJUM a ns s j IOQBD "S ;o| §u!>|jed xnqnd pio (i,)J9UMo LU04 uoissjauad •y ;o| Sui^jed jo asn J O^ 3g3H LU04 uojssiujjaci •£ ;o| Suited i o ssn J O j A; uno3 uo; snoH 0104 uoissjauad ' Z ;o-| §U!>jjBd io asn joj ;u!|d UJ04 uoissjauad ' I sanssi Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 8 of 12 EXHIBIT C COMPLETION DATE Date: 09-24-2012 Progressive Consulting Technologies Inc. 971 Washington Avenue Macon, GA 31201 Customer: The Bibb County School District 484 Mulberry Street Macon. GA 31201 COMPLETION DATE The estimated date of completion of Contract Services (Exhibit A) including the development of Deliverables (Exhibit B) shall be June 30. 2013. Customer: Progressive ConsultiOT^cgTgdlM^l0^JUJOm 9nss! iOQBD A 10| p}q(dj-JSUMj/UJOJJ lioja& i L U j a / - p By: ioi Suited jA^hodg^tiiS^aeptKqsnt^iiii®^ uoissiauad z i o n S u ^ j e d j o s s n J G ^ i u j | j L U O J J u o j s s i u j j a d - j By; " J ' --J Isaac J. jCuJVer, III - Pres./CEO sgnssi Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 9 of 12 EXHIBIT D CUSTOMER RESPONSIBILITIES Date: 09-24-2012 Progressive Consulting Technologies Inc. 971 Washington Avenue Macon, GA 31201 Customer: The Bibb County School District 484 Mulberry Street Macon. GA 31201 CUSTOMER RESPONSIBILITIES Customer Responsibilities shall mean the following: All hardware and software components shall be provided by the Bibb County School District. Customer shall be responsible for performing the tasks and providing the items set forth in Exhibit D as a condition precedent to the obligations of Corporation hereunder. Customer: Progressive Consult-itfm^d[^gi0^!UJOBiWg Ml'M anssj IOQB 9 > A i jo| Sui^J^xijqn/pio^ s u M Q /jojj udiss/ujad J f By: 4̂Q-s^i-JQ-T^UH yujver, III - Pres./CEO jo| Su^jed ̂ ^hQdjz^fepteQsnb^iwiOJj uoissjouad z joi §u!>|jed io asn JO^ jujid UJOJ^ uojssjLUJSd •"[ By:. Isaac J. sanssi Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 10 of 12 EXHIBIT E FEE SCHEDULE Date: 09-24-2012 Progressive Consulting Technologies, Inc. 971 Washington Avenue Macon, GA 31201 Customer: The Bibb County School District 484 Mulberry Street. Macon. GA. 31201 Macon. GA 31201 FEE SCHEDULE Progressive shall invoice the customer monthly for fees (in accordance with Section 2). Receipts evidencing all cost shall accompany such invoices. Customer shall pay such invoice by the end of the month in which the invoice is received. The Bibb County School District has agreed to extend a services contract to Progressive Consulting Technologies, Inc. Negotiated Addendum Within Proposal Proposed Fees and Hourly Rates Additional Positions not previously indicated Program Manager Senior Consultant/ Principal Technology Consultant Project Manager 95 175 Senior Technology Consultant 50 90 Senior Project Manager 75 150 Senior Network Engineer Senior Multimedia Engineer Senior Telecommunication Engineer Network Engineer 65 140 Muttimedia Engineer Telecommunications 50 90 50 125 Engineer Senior Camera/Surveillance Engineer Camera/Surveillance 40 75 Engineer Consultant 60 Wireless Specialist 89 CAD/Drawings Support Administrative Support 40 Virtualization Specialist 145 Desktop Support Manager - help desk type support 35 75 Case 5:16-cv-00549-MTT Document 25-2 Filed 01/17/17 Page 11 of 12 Issues 1. Permission from Flint for use of Parking Lot 2. Permission from Houston County for use of Parking lot 3. Permission from HCBE for use of Parking lot 4. Permission from owner(?) Old Publix parking lot 5. 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