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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Resqsoft, Inc. v. Protech Solutions, Inc. and State of Alaska, Department of Revenue (6/18/2021) sp-7539
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
RESQSOFT, INC., )
) Supreme Court No. S-17548
Appellant, )
) Superior Court No. 3AN-18-10376 CI
v. )
) O P I N I O N
PROTECH SOLUTIONS, INC. and )
STATE OF ALASKA, DEPARTMENT ) No. 7539 - June 18, 2021
OF REVENUE, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Yvonne Lamoureux, Judge.
Appearances: Eva R. Gardner and Jeffrey W. Robinson,
Ashburn & Mason, P.C., Anchorage, for Appellant.
Allison G. Strickland, Jermain, Dunnagan & Owens,
Anchorage, for Appellee Protech Solutions, Inc. Rachel L.
Witty, Assistant Attorney General, Anchorage, and Kevin G.
Clarkson, Attorney General, Juneau, for Appellee State of
Alaska.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices. [Borghesan, Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
Thesuperior court dismissedasubcontractor'sclaims against thecontractor
because a venue provision in the subcontract required that litigation be conducted in
----------------------- Page 2-----------------------
another state. The superior court also dismissed the subcontractor's unjust enrichment
claim against the project owner for failure to state a claim upon which relief can be
granted. The subcontractor appeals the dismissals; seeing no error, we affirm the
superior court's decisions.
II. FACTS AND PROCEEDINGS
The State of Alaska, Department of Revenue solicited proposals for a
technology project. Protech Solutions, Inc. submitted a competitive bid, identifying
ResQSoft, Inc. as a subcontractor and technology partner. The State awarded Protech
the nearly $3 million project; the State and Protech executed a contract for work to begin
July 15, 2017 and end by June 30, 2020.
Although ResQSoft began work immediately, Protech and ResQSoft did
not execute their subcontract until early October 2017; the subcontract specified that
ResQSoft was to perform technical work (other than testing and project management)
andprovidefixed-priceproducts. The relationship between Protech and ResQSoft broke
down, and in February 2018 Protech terminated the subcontract and replaced ResQSoft
with a different subcontractor.
In November 2018 ResQSoft filed a lawsuit against Protech and the State.
1 and
ResQSoft alleged that Protech had violated the Alaska Uniform Trade Secrets Act
the Alaska Unfair Trade Practices and Consumer Protection Act2 (UTPA) by
misappropriating ResQSoft's proprietary information and trade secrets as an unfair trade
practice. Without alleging a breach of contract claim, ResQSoft sought injunctive relief
and damages, including compensation for work performed and products delivered.
ResQSoft alleged that the State was unfairly enriched because ResQSoft's work and
1 AS 45.50.910-.945.
2 AS 45.50.471-.561.
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trade secrets had been wrongfully used in the project without payment, and it sought an
equitable award of damages against the State.
Protech moved to dismiss ResQSoft's statutory claims for improper venue
based on the subcontract's forum selection clause mandating suit in Delaware federal
3 The State moved to dismiss the unjust enrichment claim for failure to state a
court.
claim upon which relief may be granted.4
The superior court granted Protech's dismissal motion "because the forum
selection clause encompasses the subject matter of this dispute." The court also granted
the State's dismissal motion, determining that "ResQSoft fail[ed] to state a claim for
unjust enrichment because as a matter of law, the State did not receive a windfall and
contractual obligations and remedies between ResQSoft and Protech remain available
such that the [c]ourt should not impute a quasi-contract between ResQSoft and the
State."
After final judgments were entered and distributed, ResQSoft appealed,
arguing that the superior court erred as a matter of law by granting Protech's dismissal
motion for improper venue and by granting the State's dismissal motion for failure to
state a claim for unjust enrichment.
III. STANDARD OF REVIEW
We review de novo a superior court's grant of an Alaska Civil
Rule 12(b)(3) motion to dismiss for improper venue, exercising our independent
3 See Alaska R. Civ. P. 12(b)(3) (providing that defendant may file motion
to dismiss lawsuit for improper venue).
4 See Alaska R. Civ. P. 12(b)(6) (providing that defendant may file motion
to dismiss claims for failure to state claim upon which relief can be granted).
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5
judgment. Contract interpretation, including interpretation of forum selection clauses,
6
is a question of law reviewed de novo with our independent judgment.
" 'Whether [a]
forum-selection clause is enforceable is a question of law' to which we apply our
7 We review de novo a superior court's grant of a Rule 12(b)(6)
independent judgment."
motion to dismiss for "failure to state a claim upon which relief can be granted."8
IV. DISCUSSION
A. The Superior Court Did Not Err By Dismissing ResQSoft's Claims
Against Protech.
1. Preliminary issue
"To withstand a [dismissal] motion based on improper venue, the plaintiff
must present a prima facie case that . . . venue is proper. The trial court may consider
evidence outside the pleadings but should take . . . uncontradicted allegations as true and
9 An
construe reasonable inferences and factual conflicts in favor of the plaintiff."
evidentiary hearing is required only when a material fact necessary for resolving the
5 See Brooks Range Petroleum Corp. v. Shearer , 425 P.3d 65, 70 (Alaska
2018) (holding proper venue "is a legal question we review de novo, applying our
independent judgment to adopt the rule of law that is most persuasive in light of
precedent, reason, and policy").
6 Alaska Fur Gallery, Inc. v. Tok Hwang , 394 P.3d 511, 514 (Alaska 2017)
("We treat the interpretation of contract language as a question of law and interpret the
language de novo." (quoting Cook v. Cook, 249 P.3d 1070, 1077 (Alaska 2011))).
7 Nunez v. Am. Seafoods, 52 P.3d 720, 721 (Alaska 2002) (alteration in
original) (quoting Bodzai v. Arctic Fjord, Inc., 990 P.2d 616, 618 (Alaska 1999)).
8 Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 253 (Alaska 2000)
(quoting Alaska R. Civ. P. 12(b)(6)).
9 Brooks Range, 425 P.3d at 71.
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venue motion is disputed, but "[w]hether to hold a hearing is committed to the trial
court's discretion." 10
ResQSoftarguesthat, when thesuperiorcourtdismissed ResQSoft's claims
againstProtechbecauseofimproper venue, thecourt impermissibly considered Protech's
"ten pages of new factual narrative, or 'rebuttal' to ResQSoft's [c]omplaint, unsupported
by any affidavits." ResQSoft contends that the material "clearly influenced" the court's
decision and that the court failed to expressly specify which of ResQSoft's allegations
in the complaint it "considered to be 'uncontradicted,' and [the court] did not 'expressly
exclude' the additional material as required by . . . precedents." Although we note that
the superior court cited the complaint for the factual matters set out in its decision, we
do not consider this argument because we review the superior court's decision de novo.11
We consider only ResQSoft's complaint and the unquestioned contract and subcontract
documents.
2. Legal framework for forum selection clauses
We construe forum selection clauses broadly, releasing a party from a
clause only when necessary to preserve justice or a compelling state interest.12 The party
seeking to escape the clause bears the burden of showing that enforcing the clause would
be unjust.13
10 Id.
11 See id. at 70.
12 Nunez, 52 P.3d at 723 ("A contractual choice-of-forum clause should be
held unenforceable if enforcement would contravene a strong public policy of the forum
in which suit is brought, whether declared by statute or by judicial decision." (quoting
M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972))).
13 Volkswagenwerk, A.G. v. Klippan, GmbH, 611 P.2d 498, 503-04 (Alaska
(continued...)
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3. Why we affirm the superior court's decision that the forum
selection clause applies to ResQSoft's claims
This case requires interpreting the subcontract's forum selection clause,14
which specifies:
In the event litigation is necessary to enforce any provision of
or resolve any dispute arising out of this Agreement, the
Parties agree that any proceeding relating to or arising from
the Agreement will be heard and litigated exclusively in the
federal district court of Delaware. (Emphases added.)
ResQSoft argues, as it did in the superior court, that the "forum selection
clause is drafted narrowly and applies only to claims 'arising out of' the [s]ubcontract."
ResQSoft specifically contends that the clause's opening phrase establishes a narrowly
defined scope, covering only pure contract disputes, for triggering the forum selection
clause. ResQSoft contends that the broader coverage of the second phrase simply
identifies where contract disputes must be litigated. ResQSoft concludes that because
it asserted no contract claims against Protech, the forum selection clause is not triggered.
Protech responds, as it did in the superior court, that ResQSoft's claims, however
described, arise out of the subcontract and cannot be resolved absent interpretation and
application of the subcontract's terms.
13 (...continued)
1980) ("[I]t should be incumbent on the party seeking to escape his contract to show that
trial in the contractual forum will be so gravely difficult and inconvenient that he will for
all practical purpose be deprived of his day in court." (quoting M/S Bremen, 407 U.S. at
18)).
14 See Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004)
("The objective of contract interpretation is to determine and enforce the reasonable
expectations of the parties. . . . 'The parties' expectations are assessed by examining the
language used in the contract, case law interpreting similar language, and relevant
extrinsic evidence, including the subsequent conduct of the parties.' " (quoting
Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996))).
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Thesuperior court consideredbut rejected ResQSoft'sarguments,referring
to the forum selection clause as "broad" and stating that the "dispute arises out of the
subcontract, and evaluation of the merits of the Trade Secrets and UTPA claims would
require interpretation of the rights and duties set forth in the subcontract." We agree with
the superior court.
The forumselection clause's "arising out of" language is sufficient to bring
ResQSoft's claims within the clause's ambit regardless of the language difference in the
15 Non-contractual claims, even those arising from
forum selection clause's two phrases.
Alaska statutory law and equitable principles, may be subject to a contract's forum
selection clause if the claims arise out of or relate to the contractual terms.16 ResQSoft
nonetheless relies on Bodzai v. Arctic Fjord, Inc.17 to argue that the forum selection
clause should not apply to its non-contract claims. In Bodzai we overturned the
application of an employment contract's forum selection clause to the employee's
personal injury claims, concluding that the personal injury claims based on negligence
15 See, e.g., Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection,
Inc., 32 P.3d 346, 357 (Alaska 2001) (discussing contractual indemnity clause and
holding that "the phrase 'arising out of' . . . is very broad"); Crowson v. Sealaska Corp. ,
705 P.2d 905, 910 (Alaska 1985) (discussing equipment lease contract "covering 'any
suit arising out of the lease' " and holding suit "based on fraud in the inducement,
'arises' out of the lease, even if the complaint alleges only" tort claims).
16 SeeVolkswagenwerk, 611P.2dat504 (enforcing forumselectionclausefor
non-contractual tort claims despite party "characteriz[ing] its action as . . . arising solely
from Alaska statutory law and equitable principles rather than from contract"); see also
Adema Techs., Inc. v. Wacker Chem. Corp. , 657 F. App'x 661, 662 (9th Cir. 2016) ("[If]
a broad forum-selection clause is included in a contract and the parties raise
non-contractual claims, the forum-selection clause can apply to the non-contractual
claims, at least [if] 'resolution of the claims relates to interpretation of the contract.' "
(quoting Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th Cir. 1988))).
17 990 P.2d 616 (Alaska 1999).
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did not arise out of the employment contract but rather were grounded in the federal
18
Jones Act and common law maritime law.
But the contract in Bodzai differed greatly
from the subcontract in this case; as the superior court pointed out, Bodzai's injury
claims did not "arise under the terms"ofhis contract, unlike ResQSoft's statutory claims.
Neither the Trade Secrets Act nor the UTPA defines "proprietary
information," but the subcontract does:
[A]ll information and data relating to a party's technology,
products, services or other business, including, without
limitation: (i) product or service information, including
designs and specifications, development plans,
methodologies, technical approaches, and strategy;
(ii) marketing information . . . ; (iii) computer software,
including codes, flowcharts, algorithms, architectures, menu
layouts, routines, report formats, data compilers and
assemblers, templates, spreadsheets, functionality, concept,
processes, internal structure, design, external elements,
technology, and documentation; and (iv) financial
information, including sales, pricing and revenue
information.
19 The subcontract does not,
The Trade Secrets Act defines "trade secret."
but the statutory definition does not conflict with or alter the subcontract's provision
about improper tradesecret disclosures and misappropriation ofproprietary information:
"Both Parties agree that each will not disclose [proprietary information as previously
18 Id. at 618-20.
19 AS 45.50.940(3) defines "trade secret" as:
[I]nformation that (A) derives independent economic value,
actual or potential, from not being generally known to, and
not being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure
or use; and (B) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.
-8- 7539
----------------------- Page 9-----------------------
defined in the subcontract] to third parties without the written consent of the transmitting
Party, provided, however, that the recipient Party shall not be liable for any disclosure
of such information to others under [certain conditions]."
The subcontract - to which the State is not a party - further specifies that
the State retains ownership of any work product generated in the course of the project:
Any delivered code or database structures that are converted
[or] generated from the code provided by the State of Alaska
using ResQSoft tools will be the unencumbered property of
the State of Alaska. Related delivered documentation will
also be the unencumbered property of the State of Alaska. In
effect, the items that are delivered under this contract become
the property of the State upon payment for those deliverables
to ResQSoft as defined in the project schedule. (Emphases
added.)
ResQSoftclaims Protech shared ResQSoft'stradesecrets, misappropriated
its proprietary information, and engaged in unfair trade practices in violation oftheTrade
Secrets Act and the UTPA, but a court could not resolve those claims without looking
to the subcontract's provisions about trade secrets, proprietary information, and
ownership of and payment for proprietary information. Reviewing and interpreting the
subcontract was necessary to deciding: (1) ownership interests in computer code or
database structures; (2) what constitutes proprietary information; and (3) whether either
entity failed to perform contractual duties regarding trade secrets, proprietary
information, and contract payments. The subcontract governs the legitimacy of
ResQSoft's claims and whether they fall under the Trade Secrets Act or the UTPA, thus
triggering the forum selection clause.
4. Why we affirm the superior court's enforceability decision
Weaddress four argumentsagainst enforcingthecontract's forumselection
clause, and we outline the reasons each is unavailing.
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a. Public policy argument
An otherwise applicable forum selection clause may be voided for public
policy reasons: "A contractual choice-of-forum clause should be held unenforceable if
enforcement would contravene a strong public policy of the forum in which suit is
20
brought, whether declared by statute or by judicial decision."
In the superior court
ResQSoft argued it would be against public policy to enforce the subcontract's forum
selection clause because the State and Protech's contract contained a forum selection
clause designating an Alaska forum and because the State has a strong public policy
favoring litigating Alaska law violations in Alaska courts. But ResQSoft does not
expressly make that public policy argument on appeal.
b. Unavailable remedy in chosen forum argument
Aforumselectionclausealsomay beunenforceableifthedesignated forum
is so impracticable that no remedy is available:
[I]t should be incumbent on the party seeking to escape [a]
contract to show that trial in the contractual forum will be so
gravely difficult and inconvenient that [the party] will for all
practical purpose be deprived of [the party's] day in court.
Absent that, there is no basis for concluding that it would be
unfair, unjust or unreasonable to hold that party to [the]
bargain.[21]
In the superior court ResQSoft argued that the chosen Delaware forumwas
inconvenient and unconnected to the parties and the subject matter of the litigation. But
20 Volkswagenwerk, 611 P.2d at 504 (quoting M/S Bremen v. Zapata Off-
Shore Co. , 407 U.S. 1, 15 (1972)).
21 Volkswagenwerk, 611 P.2dat 503-04(quoting M/SBremen, 407U.S. at 18)
(emphasis omitted); see also id. at 504-05 (holding enforcement of forum selection
clause would not be unreasonable or against any public policy under Bremen criteria and
finding plaintiff's contention that it was unlikely to obtain relief in designated forum
unpersuasive).
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on appeal ResQSoft - a Virginia corporation - does not expressly make that argument
for keeping its claims against Protech - an Arkansas corporation - in Alaska. Nor has
ResQSoft asserted on appeal, and nothing suggests, that ResQSoft would be unable to
obtain relief in Delaware federal court for valid claims.
c. Adhesion contract argument
In an adhesion contract a forum selection clause may be unenforceable if
22
the party received no actual notice.
An adhesion contract exists if "the parties are 'of
such disproportionate bargaining power that the [party in the weaker position] could not
23
have negotiated for variations in the terms of the standard [contract].' " An agreement
24
negotiated at arm's length between equally situated parties is not an adhesion contract.
ResQSoft argues on appeal that the subcontract is an adhesion contract
because Protech delayed finalizing until ResQSoft had invested so much time and money
in the project that it had no choice but to sign if it hoped to recoup its costs. But
ResQSoft did not make this argument to the superior court in written opposition to
22 See Nagrampa v. MailCoups, Inc. , 469 F.3d 1257, 1291-92 (9th Cir. 2006)
("A forum selection clause within an adhesion contract will be enforced 'as long as the
clause provided adequate notice to the [party] that he was agreeing to the jurisdiction
cited in the contract.' " (quoting Intershop Commc'ns, AG v. Superior Court, 127
Cal.Rptr.2d 847, 848 (2002))); Carnival Cruise Lines, Inc. v. Superior Court , 286
Cal.Rptr. 323, 328 (1991) ("[T]he forumselection clause is unenforceable . . . if the court
determines that [the] plaintiff did not have sufficient notice of [it]. . . . Absent such
notice, the requisite mutual consent to that contractual term is lacking and no valid
contract with respect to such clause thus exists.").
23 Little Susitna Constr. Co. v. Soil Processing, Inc., 944 P.2d 20, 25 n.7
(Alaska 1997) (quoting Graham v. Rockman, 504 P.2d 1351, 1357 (Alaska 1972)).
24 Id.
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Protech's dismissal motion; ResQSoft briefly alluded to the issue during oral argument
but waived the argument by not sufficiently raising it. 25
ResQSoft points to no factual allegations in its complaint suggesting that
the subcontract terms were not the terms agreed to during negotiations, that it was at a
disadvantage during contract negotiations, or that it lacked notice of the forum selection
clause designating Delaware as the forum (mentioned three times in the subcontract).
And ResQSoft undercuts its adhesion argument by explaining how critical it was for
Protech to have a technology partner like ResQSoft to win the State's bid for the project.
These were sophisticated parties. Detailed, non-standardized subcontract
language set out critical terms of the parties' business relationship, including provisions
protecting ResQSoft's trade secrets and proprietary information. And the complaint did
not contain any specific allegations that ResQSoft was forced to sign the subcontract or
that it had no bargaining power regarding the forum selection clause. We thus are not
persuaded by ResQSoft's newly minted argument that it was the victim of an adhesion
contract.
d. Fraud argument
There also is a "reasonableness" standard when determining whether a
forum selection clause is enforceable.26 Forum selection clauses are enforceable "absent
a clear showing 'that enforcement would be unreasonable and unjust, or that the clause
25 Small v. Sayre , 384 P.3d 785, 788 (Alaska 2016) ("Generally, questions of
whatever nature, not raised and properly preserved for review in the trial court, will not
be noticed on appeal.").
26 Crowson v. Sealaska Corp., 705 P.2d 905, 911 (Alaska 1985) ("In
Volkswagenwerk, A.G. v. Klippan, GmbH . . . this court rejected the common law rule
that forum selection clauses are per se invalid and adopted in its place the reasonableness
approach set out in M/S Bremen v. Zapata Off-Shore Co. . . . .").
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27
was invalid for such reasons as fraud or overreaching.' " As to fraud, a forum selection
28
clause generally is enforceable unless the clause itself is a product of the fraud. We
have rejected the argument that "any time a dispute arising out of a transaction is based
upon an allegation of fraud, the clause is unenforceable. Rather, the clause is enforceable
unless 'the inclusion of that clause in the contract was the product of fraud or
29
coercion.' "
ResQSoft's complaint does not expressly allege fraud by Protech. But
ResQSoft argued in its written opposition to Protech's dismissal motion that "Protech's
[f]raudulent [c]onduct" rendered the forum selection clause unenforceable. At oral
argument to the superior court, ResQSoft was not specific about how its fraud assertions
supported invalidating the forum selection clause and conceded there was no need for
an evidentiary hearing to resolve disputed facts:
Court: [S]o with regards to the forum-selection clause
argument that Protech is making, do you think that there are
questions of fact?
[ResQSoft Counsel]: I think, yes. Number one, I
think it's legally inapplicable, but there is an element of our
argument that addresses whether there was . . . fraudulent
inducement and whether there were errors or problems[,] . . .
fraud in the formation of that contract, which would
necessarily involve taking the testimony of the people who
formed that contract.
Court: You're making a claim that there was
fraudulent inducement of the contract?
27 Id. (quoting M/S Bremen, 407 U.S. at 15).
28 Id. at 910.
29 Id. at 911 (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n.14
(1974) (emphasis in original)).
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[ResQSoft Counsel]: I can address that section when
I get to Protech.
Court: Okay.
. . . .
Court: Where in the complaint does it talk about
fraudulent inducement of the contract?
[ResQSoft Counsel]: The complaint doesn't
specifically address the fraudulent inducement of the forum-
selection clause.
Court: . . . So you're focused on fraud that occurred
after the parties entered into the [sub]contract?
[ResQSoft Counsel]: Right.
. . . .
Court: What do you think are the factual matters in
dispute that would warrant an evidentiary hearing at this
point in time on the applicability of the forum-selection
clause?
. . . .
[ResQSoft Counsel]: I don't know -Your Honor, I'll
concede I don't know if there is a huge need. . . . I do think
that it's mostly a legal determination that the court . . . can
make based on the evidence before it.
The superior court later rejected ResQSoft's argument that Protech's
alleged fraud invalidated the forum selection clause:
ResQSoft also asserts that Protech's alleged fraudulent
conduct renders the forum selection clause unenforceable.
ResQSoft does not assert in the Complaint that the inclusion
of the forum selection clause was the product of fraud or
otherwise raise a fraudulent inducement claim, but suggested
at oral argument that Protech had a scheme all along to cut
ResQSoft out of the contracted-for benefits of the
transaction. . . . [B]ecause ResQSoft does not assert that the
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forum selection clause was the product of fraud, the clause is
enforceable.
ResQSoft contends in its opening appeal brief that its complaint "contained
adequate allegations to support an inference of fraud that warranted further exploration,"
30 and it argues that the superior court erred by not
specifically fraud in the inducement,
allowing ResQSoft the opportunity either to amend its complaint or to conduct limited
discovery to determine whether Protech intended to defraud ResQSoft or the State. But
ResQSoft's brief describes fraudulent inducement to sign the subcontract, not fraudulent
inducement to include the forumselection clause in the subcontract. Only in ResQSoft's
reply brief does it argue that Crowson v. Sealaska Corp.31 supports a conclusion that the
forum selection clause can be invalidated because the subcontract was fraudulently
induced.
In Crowson we declined to enforce a forum selection clause because the
entire contract was a product of fraud and bribery.32 In that case Crowson paid
Sealaska's representative over $1.4 million in bribes to obtain the agreement.33 In
essence "only one interest was represented at the bargaining table," and we held that
"everything in the contracts that works to Crowson's advantage was presumably done
30 To prove fraudulent inducement a party "must show that[:] (1) there was
a misrepresentation; (2) the misrepresentation was fraudulent; (3) the misrepresentation
induced [the party] to enter into the contract; and (4) [the party's] reliance on the
misrepresentation was justified." Indus. Commercial Elec., Inc. v. McLees, 101 P.3d
593, 599 (Alaska 2004); see also 17A C.J.S. Contracts § 218 (2021) ("[A] claim of fraud
in the inducement . . . arises when a party is induced . . . . to assent to something he or
she otherwise would not have.").
31 705 P.2d at 905.
32 Id.
33 Id. at 907.
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34
in return for the bribe payments." ResQSoft relies on Crowson to advocate the
unenforceability of the subcontract's forum selection clause, but ResQSoft neither
alleged nor otherwise provided evidence of the kind of fraudulent conduct evident in
35
Crowson.
B. The Superior Court Did Not Err By Dismissing ResQSoft's Unjust
Enrichment Claim Against The State.
1. Legal framework for dismissal motions
Rule 12(b)(6) motions to dismiss are viewed with disfavor.36 "[A]
complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of [its] claim which would
entitle [it] to relief."37
Like the superior court, we are required to "accept[] as true all
38 But if the complaint refers to documents without
factual allegations" in a complaint.
attaching them, the court may consider them if their authenticity is unquestioned.39
34 Id. at 911.
35 Cf. Nash v. Dreyer, No. S-14063, 2012 WL 1059667, at *2 (Alaska
Mar. 28, 2012) (upholding forum selection clause in consulting agreement after appellant
failed to present any evidence of fraud or misleading conduct in inducement or
performance of contract); see also Alaska R. Civ. P. 9(b) (requiring pleading fraud
allegations "with particularity," a heightened pleading standard).
36 Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 253 (Alaska 2000).
37 Id. at 254 (emphasis in original) (quoting Martin v. Mears, 602 P.2d 421,
429 (Alaska 1979)).
38 Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012); see also Caudle v.
Mendel, 994 P.2d 372, 374 (Alaska 1999); Larson v. State, Dep't of Corr., 284 P.3d 1,
6 (Alaska 2012).
39 Alleva v. Municipality of Anchorage , 467 P.3d 1083, 1088-89 (Alaska
2020).
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2. Why we affirm the superior court's decision
Unjust enrichment is an equitable doctrine applied only when no other legal
40
remedy exists.
"Unjust enrichment is a broad equitable concept . . . . most closely
41
"Quasi-contracts are
linked with the law of restitution and implied (quasi) contracts."
not true contracts but are judicially created obligations to do justice."42
There are three
essential elements to a quasi-contract: "(1) a benefit conferred upon the defendant by the
plaintiff; (2) appreciation by the defendant of such benefit; and (3) acceptance and
retention by the defendant of such benefit under such circumstances that it would be
43
inequitable . . . to retain it without paying the value thereof." But "the most significant
requirement for recovery in quasi-contract is that . . . the defendant must receive a true
44
windfall or 'something for nothing.' " If "a defendant has given fair consideration or
value to a third party in exchange for the benefits conferred by the plaintiff, there is no
windfall and no recovery will lie."45
The State had a contract obligating it to pay Protech for the p roject, and
Protech had a subcontract obligating it to pay ResQSoft for work on the project. If
Protech breached the subcontract, ResQSoft has a legal remedy in the form of a breach
of contract claim, along with its statutory claims. And ResQSoft's contribution to the
40 See Knaebel v. Heiner , 663 P.2d 551, 553 (Alaska 1983).
41 Alaska Sales & Serv., Inc. v. Millet , 735 P.2d 743, 746 (Alaska 1987).
42 Id.
43 Id.
44 Id.
45 Id.
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project cannot be a windfall to the State because the State must pay Protech the contract
price for the benefits received; the State thus cannot receive "something for nothing." 46
To avoid this conclusion, ResQSoft argues that its extensive contacts with
the State over the project's course, particularly given Protech's alleged dereliction of
duties under its contract with the State and ResQSoft's alleged performance of those
duties, equate to a separate quasi-contract with the State. Although ResQSoft argued to
the superior court that it was "not demanding the State pay for Protech's breach or non-
payment," ResQSoft also argued that the only reason its work product is not yet legally
owned by the State is Protech's non-payment to ResQSoft under the subcontract. But
ResQSoft contends on appeal that its putative quasi-contract entitles it to relief from the
State regardless of any payment the State made to Protech under the terms of their
contract.
ResQSoft's arguments have no merit. As the superior court noted,
ResQSoft does not attempt to explain why legal remedies against Protech under the
subcontract - or under the Trade Secrets Act and the UTPA - insufficiently protect
ResQSoft's interests to make an equitable unjust enrichment claim against the State
viable. Nor does ResQSoft attempt to explain why the State should be liable both to
Protech (by contract) and ResQSoft (by quasi-contract) for ResQSoft's work and
proprietary information on the project.
To avoid the subcontract's forum selection clause, ResQSoft emphasized
that it is not bringing a contract action to enforce legal contractual remedies against
Protech; rather, ResQSoft is seeking to enforce only its other legal statutory remedies.
But as the superior court correctly observed: "There is no dispute that the work
performed by ResQSoft, for which compensation is sought, is work performed as the
46
See id.
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subcontractor on the project governed by the contract and subcontract." All aspects of
ResQSoft's equitable unjust enrichment claim against the State for work done and
proprietary materials provided for the project can be asserted as legal claims against
Protech, regardless of possible change orders or contract adjustments that ResQSoft now
speculates might show Protech gave the State contract discounts for the unpaid work and
proprietary materials ResQSoft provided for the project. Even if the unpleaded
speculation were true, that would not adversely affect ResQSoft's statutory claims or its
presently unasserted contract claims against Protech.
ResQSoft's claim for unjust enrichment fails; the superior court correctly
granted the State's dismissal motion.
V. CONCLUSION
We AFFIRM the superior court's dismissal of ResQSoft's claims against
both Protech and the State.
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