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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`GODADDY MEDIA TEMPLE INC., a
`California Corporation,
`
`Plaintiff,
`
`vs.
`
`ANEXIO DATA CENTERS, LLC, DOES 1
`through 10,
`
`
`
`Defendants.
`
` C.A. NO.:
`
`
`COMPLAINT FOR BREACH OF
`CONTRACT, ACCOUNT STATED,
`BOOK ACCOUNT, UNJUST
`ENRICHMENT, AND
`DEMAND FOR JURY TRIAL
`
`COMPLAINT
`
`Plaintiff GODADDY MEDIA TEMPLE INC., a California Corporation, (“PLAINTIFF”)
`
`alleges as follows against Defendant ANEXIO DATA CENTERS, LLC (“DEFENDANT” or
`
`“ANEXIO”):
`
`NATURE OF ACTION
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`1.
`
`This action involves breaches of contractual, statutory, and common law duties
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`owed by DEFENDANT to PLAINTIFF (collectively “the Parties”).
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`2.
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`On or about June 15, 2016, the Parties entered into a “MASTER SERVICES
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`AGREEMENT” (“MSA”). A true and correct copy of the MSA is attached hereto as Exhibit A.
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`Pursuant to the MSA, DEFENDANT was required to use reasonable efforts to deliver an invoice
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`for recurring monthly service charges at least thirty days prior to the first day of the month to
`
`which such invoice relates. ANEXIO offered PLAINTIFF a 10% discount for services associated
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`with the data center in El Segundo, CA (“LA Data Center”) in exchange for advance payment for
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`the time period from March 1, 2019 through December 31, 2019. PLAINTIFF advanced payment
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`to DEFENDANT in the amount of $1,899,713 to cover services from March 1 through December
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`31, 2019. On June 20th, 2019, however, DEFENDANT was evicted from the LA Data Center and
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`ceased to provide PLAINTIFF with services, or access to the LA Data Center pursuant to the terms
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`of the MSA, leaving a credit balance in the amount of $1,139,827.80 not including interest.
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`3.
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`DEFENDANT recognized the debt it owed to PLAINTIFF for its failure to deliver
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`services per the Parties’ contract, and promised to offset, or otherwise provide full credit for the
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`balance it owes to PLAINTIFF. Ultimately, however, DEFENDANT failed to provide any offset,
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`credit, or refund, and failed to provide the services that it promised to PLAINTIFF.
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`4.
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`PLAINTIFF was forced to contract with a third party to provide the same, or
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`substantially similar services at the same location for the same time period in 2019 without
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`receiving any credit for payment to DEFENDANT. In spite of repeated requests, DEFENDANT
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`failed to reimburse PLAINTIFF or provide any value in exchange for the amount it owes to
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`PLAINTIFF.
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`THE PARTIES
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`5.
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`At all times mentioned herein, PLAINTIFF was, and is now, an entity organized
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`under the laws of California with a principal place of business in Los Angeles, California.
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`6.
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`At all times mentioned herein, DEFENDANT was, and is now, a Delaware limited
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`liability company, with its principal place of business at One Bank of America Plaza, 421
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`Fayetteville Street, Suite 1100, Raleigh, North Carolina 27601.
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`7.
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`PLAINTIFF is unaware of the true names and capacities, whether individual,
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`corporate, associate or otherwise of defendants sued herein as Does 1 through 10, inclusive, and,
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`therefore, PLAINTIFF sues said defendants by such fictitious names and will ask leave of court to
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`amend this complaint to show their true names and capacities when the same have been
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`ascertained.
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`8.
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`At all times mentioned herein, defendants, and each of them, were the agents,
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`employees, joint venturers, joint tortfeasors and partners of each of their co-defendants and, in
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`doing the things herein described, were acting within the course and scope of their authority as
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`such agents, employees, joint venturers, joint tortfeasors and partners.
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`JURISDICTION AND VENUE
`
`9.
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`PLAINTIFF brings its Complaint under federal diversity jurisdiction, 28 U.S.C.
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`§ 1332. The Parties are completely diverse in citizenship, and the amount in controversy exceeds
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`the jurisdictional minimum.
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`10.
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`PLAINTIFF is a California Corporation with its principal place of business in Los
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`Angeles. DEFENDANT is a Delaware Limited Liability Corporation with its principal place of
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`business in North Carolina. Therefore complete diversity of citizenship exists.
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`11.
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`The total amount of damages sought in this action exceeds the jurisdictional limit
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`as PLAINTIFF is owed a minimum of $1,139,827.80 not including interest.
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`12.
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`Venue is proper in this Court because the Parties, by contract, specified that they
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`consent to the mutual and exclusive jurisdiction of the state or federal courts located in the State
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`of Delaware for any action brought in connection with, arising out of, or relating to the MSA.
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`[Exh. A ¶ 15.]
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`13.
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`14.
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`GENERAL ALLEGATIONS
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`On or about June 15, 2016, the Parties entered into the MSA.
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`Pursuant to the terms of the MSA, PLAINTIFF was to pay all fees and charges for
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`services set forth on a “Service Order Form.” PLAINTIFF promptly paid all such fees.
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`15.
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`DEFENDANT invoiced PLAINTIFF in advance for services, and offered a 10%
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`discount for advance payment of six months of service, and a 20% discount for advance payment
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`of twelve months of service.
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`16.
`
`On February 27, 2018, by
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`invoice number 40642 (“Invoice 40642”),
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`DEFENDANT requested advance payment from PLAINTIFF for “ORDER #6861” covering
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`“SERVICE PERIOD 2/1/2018-6/30/2018” in the amount of $1,087,984.44. Invoice 40642 also
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`included a “Pre-payment discount” of approximately 10%. A true and correct copy of Invoice
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`40642 is attached hereto as Exhibit B. PLAINTIFF promptly paid the entire sum of $1,087,984.44
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`set forth on Invoice 40642.
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`17.
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`Similarly, by an invoice dated June 26, 2018 bearing invoice number 40929
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`(“Invoice 40929”), for example, DEFENDANT requested that PLAINTIFF pay $1,139,828.13 in
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`advance for the “SERVICE PERIOD” from “7/1/2018-12/31/2018.” The same invoice included
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`a Pre-Payment discount of approximately 10%. PLAINTIFF promptly paid the entire sum of
`
`$1,139,828.13 billed by DEFENDANT to PLAINTIFF on Invoice 40929. A true and correct copy
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`of Invoice 40929 is attached hereto as Exhibit C.
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`18.
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`In February of 2019, the parties discussed a similar discount in exchange for
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`advance payment for services to be rendered from the beginning of March through the end of 2019.
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`ANEXIO ultimately offered a 10% discount to PLAINTIFF for advance payment for services
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`associated with the LA Data Center from March 1 through the end of 2019. By an invoice dated
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`February 25, 2019 bearing invoice number 5139A (“Invoice #5139A”), DEFENDANT then billed
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`PLAINTIFF for the “SERVICE PERIOD 3/01/19 – 12/31/2019” for services associated with the
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`LA Data Center. A true and correct copy of invoice #5139A is attached hereto as Exhibit D. On
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`February 28, 2019, DEFENDANT sent a copy of Invoice #5139A to PLAINTIFF by email. A
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`service order was attached to the same email. Invoice #5139A states that DEFENDANT applied
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`a “Pre-Payment Discount – 10%” in the amount of $211,079.25 for advance payment of services
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`through the end of the year. PLAINTIFF promptly advanced payment of $1,899,713.25, the total
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`amount set forth on Invoice #5139A, for services through the end of the year.
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`19.
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`On subsequent invoices, including Invoice No. 5342 dated May 1, 2019 (“Invoice
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`5342”), DEFENDANT credited PLAINTIFF’s advanced payment as “Pre-Payment Application,”
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`and noted that it was applying a “Pre-Payment Invoices.” A true and correct copy of Invoice No.
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`5342 is attached hereto as Exhibit E.
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`20.
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`On June 20th, 2019, ANEXIO was evicted from the LA Data Center and ceased to
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`provide PLAINTIFF with services or access to the LA Data Center pursuant to the terms of the
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`MSA, leaving a credit balance in the amount of $1,139,827.80 (“Credit Balance”) not including
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`interest.
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`21.
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`On July 2, 2019 Tony Pompliano of ANEXIO wrote to PLAINTIFF and stated that
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`PLAINTIFF’s expectation for a refund was reasonable. Specifically, he wrote: “Your expectations
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`for getting a refund is reasonable, and understood. Unfortunately, I cannot just release the money
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`because my lender/ bank has put restrictions on my access to cash.” Mr. Pompliano then suggested
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`that DEFENDANT apply the Credit Balance to the amount PLAINTIFF was paying on a monthly
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`basis for services associated with a data center in Ashburn, Virginia. Specifically, in recognition
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`of the outstanding Credit Balance, DEFENDANT made the following offer to PLAINTIFF on July
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`2, 2019: “I want to talk through with you about how we can potentially work together to getting
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`money released from our bank. Not trying to get you in the middle of this, but I don’t want to
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`ignore your request, and share with you the current challenges. If in the short term we are unable
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`to get funds released back to [PLAINTIFF] we can apply your deposit to the Ashburn, VA site
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`charges.”
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`22.
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`During a phone call that took place on July 2, 2019, Tony Pompliano of ANEXIO
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`again suggested to PLAINTIFF that the Parties jointly petition DEFENDANT’s bank for release
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`of the Credit Balance owed to PLAINTIFF.
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`23.
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`The Parties then entered into an agreement whereby PLAINTIFF was to withhold
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`payments for services associated with the Ashburn ACC4 data center (“Ashburn Data Center”)
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`and the Credit Balance would be applied towards those charges.
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`24.
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`The Parties then reduced their agreement to a formal written instrument, but
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`DEFENDANT failed to execute it. When PLAINTIFF made inquiries with ANEXIO’s Tony
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`Pompliano in July of 2019 regarding execution of the written instrument, Mr. Pompliano
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`reaffirmed ANEXIO’s commitment to honor the Parties’ agreement to apply the Credit Balance to
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`charges associated with the Ashburn Data Center. Specifically, on July 30, 2019, ANEXIO’s Tony
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`Pompliano reaffirmed DEFENDANT’s commitment to honor the Parties’ agreement with respect
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`to the outstanding Credit Balance. Mr. Pompliano explained that “I will honor our agreement.
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`The bank is pulling me through knot holes about treatment of funds collected and what they think
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`is their collateral . . . . Again, I am going to honor the agreement - just give me a couple of days
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`to finalize the forbearance.”
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`25. When PLAINTIFF withheld payment in August pursuant to the Parties’ agreement,
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`however, DEFENDANT sent PLAINTIFF a notice of default dated August 16, 2019. Upon receipt
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`of DEFENDANT’s notice of default referencing the default terms under the MSA, PLAINTIFF
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`promptly made payment in the amount of $234,960 to avoid an interruption in services at the
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`Ashburn Data Center.
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`26.
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`On September 11, 2019, PLAINTIFF wrote to DEFENDANT providing formal
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`notice that all service orders for the LA Data Center were terminated. PLAINTIFF also requested
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`that the Credit Balance be applied to services provided in connection with the Ashburn Data
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`Center. The entire Credit Balance remains outstanding and is owed to PLAINTIFF. Ultimately
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`PLAINTIFF vacated the Ashburn Data Center on or about July 29, 2020 without receiving any
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`recognition for the credit balance. PLAINTIFF was required to contract with a third party, in the
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`meantime, to remain in the LA Data Center, and paid that third party to remain in the LA Data
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`Center.
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`FIRST CAUSE OF ACTION
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`(Breach of Contract)
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`27.
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`PLAINTIFF re-alleges and incorporates by reference paragraphs 1 through 26 of
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`this complaint as though fully and completely set forth herein.
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`28.
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`PLAINTIFF fulfilled all material terms of the Parties’ contract. To wit,
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`PLAINTIFF made prompt payment of all fees and charges invoiced by DEFENDANT pursuant to
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`the MSA, including advance payment of the amounts set forth on Invoice #5139A. In fact,
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`PLAINTIFF advanced payment for all services enumerated on all service orders, and associated
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`with the LA Data Center for the time period from March 1, 2019 through December 31, 2019.
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`PLAINTIFF fulfilled all other material terms of the MSA.
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`29.
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`As such, DEFENDANT had a duty to provide all services contracted for and
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`associated with the LA Data Center from March 1, 2019 through December 31, 2019 without
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`disruption. .
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`30.
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`On or about June 20, 2019, however, DEFENDANT was evicted from the LA Data
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`Center. DEFENDANT failed to provide PLAINTIFF with services associated with the LA Data
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`Center. DEFENDANT also failed to provide PLAINTIFF with access to the LA Data Center.
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`31.
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`The Parties agreed that DEFENDANT’s failure to provide the services associated
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`with LA Data Center left a Credit Balance in PLAINTIFF’s favor in the amount of $1,139,827.80
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`not including interest.
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`32.
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`On July 2, 2019, DEFENDANT suggested that the Parties jointly petition
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`DEFENDANT’s bank for release of the entire Credit Balance to PLAINTIFF.
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`33.
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`Subsequently, the parties agreed that PLAINTIFF would withhold payment for
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`services associated with the Ashburn Data Center, and the Credit Balance would be applied toward
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`payment for those services.
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`34.
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`Ultimately, DEFENDANT reneged on its agreement to apply the Credit Balance
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`toward services associated with the Ashburn Data Center.
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`35.
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`As such, DEFENDANT breached the terms of the MSA by failing to provide
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`services associated with the LA Data Center from June through December 31, 2019.
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`DEFENDANT then breached its promise to apply the Credit Balance to the fees associated with
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`the Ashburn Data Center. Ultimately PLAINTIFF vacated the Ashburn Data Center on or about
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`July 29, 2020 without receiving any recognition for the credit balance.
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`36.
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`PLAINTIFF is owed $1,139,827.80 for the Credit Balance associated with the LA
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`Data Center. Moreover, PLAINTIFF is entitled to the benefit of its bargain. DEFENDANT must,
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`therefore, pay the difference in the amount PLAINTIFF paid to any third party for the same, or
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`substantially similar services provided to Plaintiff at the LA Data Center in 2019. PLAINTIFF is
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`also entitled to attorneys’ fees per the terms of the MSA, or by application of equity. PLAINTIFF
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`is entitled to attorneys’ fees for the additional reason that DEFENDANT acted in bad faith.
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`DEFENDANT’s bad faith is shown by, among other things, the fact that PLAINTIFF was forced
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`to bring suit to enforce legal claims that the DEFENDANT knew was valid, and indeed recognized
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`as valid.
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`SECOND CAUSE OF ACTION
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`(Account Stated)
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`37.
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`PLAINTIFF re-alleges and incorporates by reference paragraphs 1 through 38 of
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`this complaint as though fully and completely set forth herein.
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`38.
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`The Parties entered into an agreement whereby DEFENDANT promised to provide
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`services associated with the LA Data Center to PLAINTIFF for the time period dating from March
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`1, 2019 through December 31, 2019.
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`39.
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`On or about June 20, 2019, DEFENDANT was evicted from the LA Data Center
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`and failed to provide the services it promised to PLAINTIFF.
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`40.
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`The Parties then entered into discussions regarding DEFENDANT’s failure to
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`provide services associated with the LA Data Center.
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`41.
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`DEFENDANT agreed that it owed PLAINTIFF $1,139,827.80, representing the
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`amount remaining from the advance payment that PLAINTIFF made for services associated with
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`the LA Data Center.
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`42.
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`DEFENDANT recognized that it owed Plaintiff the Credit Balance, and suggested
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`that the Parties jointly petition DEFENDANT’s bank for release of the full Credit Balance.
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`43.
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`Subsequently, the parties agreed that PLAINTIFF would withhold payment for
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`services associated with the Ashburn Data Center, and the Credit Balance would be applied toward
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`payment for those services. Ultimately PLAINTIFF vacated the Ashburn Data Center on or about
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`July 29, 2020 without receiving any recognition for the credit balance.
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`44. While DEFENDANT recognized it owed PLAINTIFF the debt of $1,139,827.80
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`associated with its failure to provide services associated with the LA Data Center, it ultimately
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`failed to provide any credit or value for that amount. As such, PLAINTIFF is owed $1,139,827.80
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`and seeks to recover same by way of this Complaint, plus interest at the legal rate, costs, and
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`attorneys’ fees.
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`THIRD CAUSE OF ACTION
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`(Book Account)
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`45.
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`PLAINTIFF re-alleges and incorporates by reference paragraphs 1 through 46 of
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`this Complaint as though fully and completely set forth herein.
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`46.
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`The Parties entered into a series of agreements dating back to 2006 for services
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`related to the LA Data Center. In 2016, the Parties entered into the MSA.
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`47.
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`Pursuant to the terms of the MSA, PLAINTIFF was to pay all fees and charges for
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`services described in a “Service Order Form.” The MSA requires that DEFENDANT use
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`reasonable efforts to deliver an invoice for recurring monthly service charges at least thirty (30)
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`days prior to the first day of the month to which such invoice relates. DEFENDANT did, in fact,
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`invoice PLAINTIFF in advance for services, and offered a 10% discount to PLAINTIFF for
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`advance payment of six months of service, and a 20% discount for advance payment of twelve
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`months of service.
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`48.
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`In February of 2019, DEFENDANT offered PLAINTIFF a 10% discount for
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`advance payment of services from March 1, 2019 through December 31, 2019. By Invoice
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`#5139A, ANEXIO requested advance payment from PLAINTIFF for the “SERVICE PERIOD”
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`of “3/01/19 – 12/31/2019. Invoice #5139A states that DEFENDANT applied a “Pre-Payment
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`Discount – 10%” in the amount of $211,079.25 for advance payment of services through the end
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`of the year. PLAINTIFF promptly advanced payment of the entire total stated on Invoice #5139A.
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`49.
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`A Book Account exists in the form of a detailed statement representing the debits
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`and credits between the parties, and arising out of the MSA as well related service orders and
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`invoices. That Book Account provides that PLAINTIFF made advanced payment of
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`$1,899,713.25 for services associated with the LA Data Center for the time period beginning
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`March 1, 2019 and running through December 31, 2019.
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`50.
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`On or about June 20, 2019, DEFENDANT was evicted from the LA Data Center,
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`and failed to provide the services that PLAINTIFF paid for in advance.
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`51.
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`Subsequently, the parties agreed that DEFENDANT owed PLAINTIFF a credit of
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`$1,139,827.80 for services that DEFENDANT failed to provide. As such, a Book Account exists
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`whereby PLAINTIFF is owed $1,139,827.80, and seeks that amount by way of its Complaint.
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`PLAINTIFF also seeks an award of costs, interest, and any further relief at law or equity that the
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`Court deems appropriate.
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`FOURTH CAUSE OF ACTION
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`(Unjust Enrichment)
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`52.
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`PLAINTIFF re-alleges and incorporates by reference paragraphs 1 through 53 of
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`this Complaint as though fully and completely set forth herein.
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`53.
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`Pursuant to DEFENDANT’s request, PLAINTIFF made advance payment for
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`services associated with the LA Data Center. Specifically, PLAINTIFF made advance payment
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`of $1,899,713.25 for services associated with the LA Data Center that were to be provided by
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`DEFENDANT from March 1, 2019 through December 31, 2019.
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`54.
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`On or about June 20, 2019, DEFENDANT was evicted from the LA Data Center
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`and subsequently failed to provide such services.
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`55.
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`As a result of DEFENDANT’s eviction, PLAINTIFF was forced to contract with a
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`third party to provide the same, or substantially similar services at the same location. PLAINTIFF
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`was, therefore, forced to pay twice for the same services from June 20, 2019 through December
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`31, 2019.
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`56.
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`DEFENDANT agreed to provide PLAINTIFF with a refund, or a credit in the
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`amount of $1,139,827.80 for services that DEFENDANT failed to provide. Ultimately, however,
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`DEFENDANT failed provide a refund, or anything of value in return for the Credit Balance.
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`57.
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`As such, PLAINTIFF was wrongfully deprived of $1,139,827.80, and continues to
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`be deprived of that sum. Although DEFENDANT recognizes the wrongful nature of its conduct,
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`DEFENDANT has failed to compensate PLAINTIFF for the wrongful deprivation of
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`$1,139,827.80.
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`58.
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`59.
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`Thus, DEFENDANT was unjustifiably enriched in the amount of $1,139,827.80.
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`In the event there is no adequate remedy at law, PLAINTIFF therefore seeks by
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`way of this Complaint $1,139,827.80 from Defendant, interest at a legal rate, costs, and any other
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`remedy at equity that the Court deems appropriate including attorneys’ fees.
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`PRAYER FOR RELIEF
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`WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS, and each of
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`them, as follows:
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`1.
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`For damages owed in law, and at equity for $1,139,827.80;
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`2.
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`Any and all consequential damages stemming from DEFENDANT’s breach of the
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`Parties’ agreements including, but not limited to, business interruption damages and the benefit of
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`the bargain for any and all services associated with the LA Data Center.
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`For interest at the legal rate;
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`For additional damages according to proof;
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`Reasonable attorneys’ fees according to proof;
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`Costs of suit incurred herein; and,
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`Such other and further relief as the court may deem just and proper.
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`3.
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`4.
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`5.
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`6.
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`7.
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`DEMAND FOR JURY TRIAL
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`Pursuant to Rule 38 of the Federal Rules of Civil Procedure, PLAINTIFF demands trial by
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`jury in this action of all issues so triable.
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`Dated: October 2, 2020
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`COZEN O’CONNOR
`
` /s/ Gregory Fischer
`Gregory Fischer (DE 5269)
`1201 North Market Street, Suite 1001
`Wilmington, DE 19801
`Telephone: (302) 295-2017
`E-mail: gfischer@cozen.com
`
`Paula Zecchini (pro hac vice to be submitted)
`Nathan Dooley (pro hac vice to be submitted)
`601 S Figueroa Street, Suite 3700
`Los Angeles, CA 90017
`Telephone: (213) 892-7900
`E-mail: pzecchini@cozen.com
` ndooley@cozen.com
`
`Attorneys for Plaintiff
`GODADDY MEDIA TEMPLE INC.
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