United States District Court, M.D. Georgia, Columbus Division
W.C. BRADLEY CO., Plaintiff,
ITELLIGENCE, INC., Defendant.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
W.C. Bradley Co. needed help with a major software overhaul.
Defendant itelligence, Inc. told W.C. Bradley that it had
experienced consultants who could implement a software
solution that met W.C. Bradley's needs. After extensive
negotiations, W.C. Bradley entered an agreement with
itelligence to implement the new software system. Then the
trouble began. According to W.C. Bradley, it was a classic
bait-and-switch: although itelligence had knowledgeable
personnel who said all the right things during the sales
process, the consultants who were actually assigned to the
project did not have the capability or the expertise to
implement the new software system successfully, and
itelligence's software solution was not sufficiently
tailored to meet W.C. Bradley's needs. After the first
major rollout of the new software failed, W.C. Bradley made a
list of grievances and threatened to fire itelligence.
itelligence convinced W.C. Bradley that it would fix the
problems and get the project back on track, so W.C. Bradley
gave itelligence another shot. The problems continued. W.C.
Bradley ultimately terminated the contract and brought this
action alleging that itelligence fraudulently induced it to
enter the initial agreement and committed additional fraud to
keep W.C. Bradley from terminating the agreement. W.C.
Bradley seeks rescission of the agreement and damages
resulting from itelligence's alleged fraud. In the
alternative, W.C. Bradley alleges that itelligence breached
its contract with itelligence, including express warranties
in that contract. Presently pending before the Court is
itelligence's motion for judgment on the pleadings as to
W.C. Bradley's fraud, negligent misrepresentation, and
certain express warranty claims. As discussed below, that
motion (ECF No. 33) is denied except as to W.C.
Bradley's breach of express warranty claims set forth in
paragraphs 158 and 159 of the Amended Complaint.
ON THE PLEADINGS STANDARD
on the pleadings is appropriate where there are no material
facts in dispute and the moving party is entitled to judgment
as a matter of law.” Cannon v. City of W. Palm
Beach, 250 F.3d 1299, 1301 (11th Cir. 2001). The Court
“must accept the facts alleged in the complaint as true
and view them in the light most favorable to the nonmoving
party.” Id. The Court may consider written
instruments attached to the complaint or answer in ruling on
a motion for judgment on the pleadings without converting
that motion to a summary judgment motion under Federal Rule
of Civil Procedure 12(d) because Rule 7(a) defines
“pleadings” to include the complaint and answer,
and Rule 10(c) provides that a copy of a written instrument
“that is an exhibit to a pleading is a part thereof for
all purposes.” Fed.R.Civ.P. 10(c); accord Horsley
v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). If
exhibits to a pleading “contradict the general and
conclusory allegations of the pleading, the exhibits
govern.” Griffin Indus., Inc. v. Irvin, 496
F.3d 1189, 1206 (11th Cir. 2007).
Bradley alleges the following facts in support of its claims.
The Court must accept these facts as true for purposes of the
2014, W.C. Bradley decided to perform a global systems
upgrade to replace its various business units'
“disparate and aging” information technology
systems with one integrated enterprise resource planning
solution to provide a “single, consolidated view of
operations and finances.” Am. Compl. ¶¶ 2,
15-17, ECF No. 8. W.C. Bradley needed an enterprise resource
planning system that could “provide dynamic business
analytics and real-time reporting, accommodate
multi-currency, multilingual, foreign tax, and other
international regulatory requirements that are inherent in a
global business operation.” Id. ¶ 17.
W.C. Bradley recognized that the upgrade project would be
complex and that its in-house information technology
personnel could not complete the project on their own.
Therefore, W.C. Bradley formed a selection team to
investigate and document its business needs and search for
available software solutions.
software provider, SAP AG, recommended that W.C. Bradley
partner with itelligence to design and implement a SAP system
suitable for W.C. Bradley's business needs. W.C. Bradley
had itelligence and other potential vendors demonstrate their
software solutions to the selection team. And, itelligence
had an opportunity “to participate in extensive
information-gathering sessions” to understand W.C.
Bradley's requirements for the enterprise resource
planning solution. Id. ¶ 21. During those
sessions, itelligence learned about W.C. Bradley's
business processes, existing software, and IT personnel
the preliminary discovery sessions, W.C. Bradley issued a
request for proposals inviting potential vendors to submit
their plans for a global enterprise solution for W.C.
Bradley. W.C. Bradley emphasized that it wanted an
implementation partner that had proven abilities to implement
enterprise solutions and retain experienced resources.
itelligence submitted a proposal suggesting a SAP enterprise
resource planning software solution. In its proposal,
itelligence represented that its solution would exceed W.C.
Bradley's functional and technical requirements by
meeting today's requirements and serving “as a
flexible, scalable and stable platform for innovation and
growth.” Id. ¶ 25. itelligence also
stated that it had “deep expertise” and
“proven delivery methods” with SAP software
products, as well as a “deep understanding of specific
regional and local requirements.” Id.
¶¶ 24-25. itelligence further represented that it
would bring the “most qualified resources” with
industry and SAP expertise to create an effective program on
time and on budget. Id. ¶ 25. And, itelligence
represented that it would deliver knowledge transfer and
training to ensure that W.C. Bradley would be self-sufficient
by the end of the project. Id. ¶ 26.
analyzing the proposals it received, W.C. Bradley invited
itelligence and two other vendors for an on-site demo day.
itelligence “pre-sales” consultants demonstrated
itelligence's SAP software solution. Id. ¶
27. And, over the course of several months, itelligence
representatives convinced the selection team that
itelligence's global template solution would work for
W.C. Bradley's business, that itelligence personnel had
the skills and experience necessary to customize the SAP
solution to meet W.C. Bradley's requirements, and that
itelligence could deliver a SAP solution “with less
effort and expense than competing . . . vendors through the
use of a global template.” Id. ¶¶ 4,
27. W.C. Bradley was concerned about the price of the
project, so itelligence proposed splitting the global
implementation of the SAP solution into two phases. Phase I
would include W.C. Bradley's corporate operations and two
business units: Zebco Holdings and W.C. Bradley Real Estate.
Phase Two would include the two remaining business units,
Char-Broil, LLC and Lamplight Farms Inc. And, by the end of
Phase I, itelligence would train W.C. Bradley's IT
personnel so that they could lead the Phase II rollout at a
significantly lower cost. Id. ¶¶ 4, 28.
Bradley asserts that when itelligence made these
representations and proposals, it knew that W.C. Bradley
really needed a solution tailored to meet its complex
business requirements and that itelligence's
pre-configured global template solution would not work for
W.C. Bradley's business without significant
customization, which would be upsold to W.C. Bradley at
additional cost in terms of both money and time. W.C. Bradley
further asserts that itelligence knew when it proposed the
two-phase rollout plan that W.C. Bradley would not be able to
implement Phase II on its own. And, W.C. Bradley contends
that itelligence knew or should have known that its
electronic data transfer tool was not capable of handling the
data migration from W.C. Bradley's legacy software
systems to the new SAP solution. But itelligence repeatedly
assured W.C. Bradley in “dozens of conversations and
written communications” that its template solution and
the two-phase rollout plan would work despite the significant
differences between the business processes of W.C.
Bradley's business units and the limitations of W.C.
Bradley's IT personnel. Id. ¶¶ 6,
itelligence presented an implementation services proposal to
the W.C. Bradley selection team representing that Phase I of
the project, which would roll out the SAP solution for Zebco
and W.C. Bradley's corporate operations, would be done in
42 weeks and cost approximately $6 million. Phase II, which
would cover Char-Broil and Lamplight, would be done in 24
weeks and cost approximately $475, 000, with W.C. Bradley
personnel having enough training and knowledge transfer from
itelligence to lead Phase II.
W.C. Bradley expressed concerns about the feasibility of the
timeline and budget, itelligence represented that its program
management methodology would ensure that the project would be
successful. And when W.C. Bradley questioned whether W.C.
Bradley personnel would be able to lead Phase II, itelligence
assured W.C. Bradley that the work from Phase I would be
reusable and that W.C. Bradley personnel would be able to
lead Phase II with itelligence in a support role.
considering the proposals from the vendor candidates, W.C.
Bradley decided to use the SAP enterprise resource planning
software platform because of its ability to provide immediate
business analytics in real time. And, based on
itelligence's representations and proposals regarding its
SAP implementation skills, the feasibility of its global
template solution, and its ability to provide local expert
consultants at each of W.C. Bradley's international
business locations, W.C. Bradley selected itelligence as the
implementation vendor for the project. On February 24, 2015,
the parties entered a Master Services Agreement governing the
terms under which itelligence would provide services on the
project. The Master Services Agreement was later amended, and
the parties also executed multiple statements of work, change
orders, and amendments regarding the specific services to be
provided by itelligence on the project. The statements of
work, change orders, and amendments issued under the Master
Services Agreement were incorporated as part of the Master
Services Agreement. Def.'s Answer Ex. A, Master Services
Agreement 1, ECF No. 19-1. The Master Services Agreement
provided that itelligence's services would be provided on
a time and materials basis unless the applicable statement of
work provided for a fixed fee. Id. §§
3.4-3.5. It also provided a “good faith estimate of