United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY JUDGE
The Cellular Connection, LLC f/k/a Moorehead Communications,
Inc. (Moorehead), has filed a Motion for Summary Judgment
[ECF No. 37]. Moorehead argues that this litigation is an
attempt by Plaintiff Entertaining USA, Inc. d/b/a One
Wireless World (OWW) to relitigate a breach of contract claim
and a request for accounting that Plaintiff filed against
Moorehead in 2012, which was resolved in favor of Moorehead
and affirmed on appeal. OWW has not filed a response.
The 2012 Litigation
2012, OWW sued Moorehead in federal district court (the
“2012 Complaint”), alleging that it breached the
parties' 2006 Referral Agreement, which required
Moorehead to pay OWW a fee for each cellular activation and
upgrade resulting from OWW referrals to Moorehead. The 2012
Complaint included three counts against Moorehead: breach of
contract; accounting; and unjust enrichment. The requested
accounting would show all activations and upgrades at any
locations covered by the Referral Agreement.
terms of the Referral Agreement were litigated and decided
through partial summary judgment and a bench trial. In its
request for summary judgment, OWW sought more than $23
million for past referral fees and an injunction requiring
Moorehead to continue to pay referral fees in the future.
Entm't USA, Inc. v. Moorehead Commc'ns,
Inc., 93 F.Supp.3d 915, 922 (N.D. Ind. 2015). In
deciding the motion, the district court rejected OWW's
pursuit of referral fees based solely on the referral of the
individuals and entities, rather than locations.
Id., 93 F.Supp.3d at 926 (“Looking at the
Referral Agreement as a whole, it is clear that the parties
intended ‘referrals' to mean only referred
locations, and not referred individuals or entities.”).
However, genuine issues of material fact remained for trial
on the breach of contract claim, including which types of
service and service plans constituted
“activations” under the Referral Agreement and at
which point the parties' contractual obligation
terminated. The court also found a question of fact with
respect to the accounting claim because, until the finder of
fact determined the Referral Agreement's duration, it was
premature to decide the accounting claim. Id. at
933. The district court granted summary judgment in
Moorehead's favor on OWW's unjust enrichment claim.
August 2016, the remaining claims proceeded to a bench trial.
At trial, OWW sought damages for referral fees accruing up to
the date of trial. It also sought referral fees accruing
after the date of trial and going forward until a referred
location ceased doing business and having activations and
upgrades. OWW also pursued its claim for an accounting to
show the activations and upgrades.
court found that Moorehead and OWW intended an agreement that
would live on as long as any referred location was producing
activations. Entm't USA, Inc. v. Moorehead
Commc'ns, Inc., No. 1:12-CV-116 RLM, 2017 WL
3432319, at *6 (N.D. Ind. Aug. 9, 2017). The court identified
twelve locations for which Moorehead was obligated to pay
referral fees (Etown, Wireless Extreme, Smithmeyer Network,
Street Kicks, ZHY Wireless, York, Lancaster Wireless. Red
Lion, Shrewsbury, Global Solutions, Cellular Nation, and
Triangle Communications) for as long as those stores produced
two-year activations and reactivations. Id. at *13.
the findings on liability could have entitled OWW to
recovery, the court found that OWW failed to prove its
damages with any certainty, as was required by Indiana law.
“[OWW] hasn't proved that it was paid any less than
it should have been. This record doesn't support a
damages award in any amount.” Id., 2017 WL
3432319, at *16. Because the plaintiff failed to prove its
damages with any certainty, despite the full use of the
discovery process, the district court also denied an
equitable accounting. Id. at *17. As a result, the
district court ruled that OWW “shall take nothing by
its complaint.” Id.
appeal, the Seventh Circuit focused on the damages issue as a
dispositive one that was “sufficient to decide
virtually all of this appeal.” Entm't USA, Inc.
v. Moorehead Commc'ns, Inc., 897 F.3d 786,
792 (7th Cir. 2018). It concluded that, “[r]egardless
of the scope of potential liability under the referral
agreement, [OWW] did not show the district court that it was
entitled to any recovery.” Id. at 795. Because
OWW had not proven its damages with reasonable certainty,
despite “equal means of knowledge” through
discovery, it was not entitled to the equitable remedy of an
accounting as a “second attempt at proving its
damages.” Id. at 796.
The Current Litigation
October 4, 2018, Entertainment USA, Inc., which does business
as OWW, filed a Complaint against The Cellular Connection,
LLC f/k/a Moorehead Communications, Inc. The Complaint sets
forth the same General Allegations contained in the 2012
Complaint. Additionally, the Complaint recites findings the
district court made in the 2012 litigation, including the
finding that the parties intended the Referral Agreement to
live on as long as any referred location was producing
activations. The Complaint identifies four (of the twelve)
locations that OWW referred to Moorehead and alleges that,
following the trial in the 2012 litigation, these four
“Referred Locations were open and producing activations
and upgrades” that warranted payment of a referral fee.
(Compl., ¶ 16.) According to the Complaint,
“[d]espite multiple demands, Moorehead failed and
refused to tender any sums to OWW, or to provide an
accounting to OWW depicting the number of post-trial
activations and upgrades for the Referred Locations.”
(Id. ¶ 17.)
Complaint asserts that Moorehead has breached the Agreement
by refusing to tender payments due (Count I-Breach of
Contract). It also requests equitable relief in the form of
an order requiring Moorehead to provide OWW with an ongoing
monthly accounting of all future upgrades in connection with
the referred locations because the accounts and business
records necessary to determine the ...