Aspira Health, LLC v. Virtual OfficeWare (DE), LLC, C. A. S22C-05-015 RHR

CourtSuperior Court of Delaware
Writing for the CourtROBERT H. ROBINSON, JR. JUDGE
PartiesAspira Health, LLC v. Virtual OfficeWare (DE), LLC; d/b/a Virtual OfficeWare Healthcare Solutions
Docket NumberC. A. S22C-05-015 RHR
Decision Date14 November 2022

Aspira Health, LLC
v.

Virtual OfficeWare (DE), LLC; d/b/a Virtual OfficeWare Healthcare Solutions

C. A. No. S22C-05-015 RHR

Superior Court of Delaware, Sussex

November 14, 2022


Submitted: August 11, 2022

Sean A. Meluney, Esquire William M. Alleman, Jr., Esquire Meluney Alleman & Spence, LLC Attorneys for Plaintiff

Periann Doko, Esquire Kent & McBride, P.C. Attorney for Defendant

Joshua G. Ferguson, Esquire Freeman Mathis & Gary, LLP Attorney pro hac vice for Defendant

ROBERT H. ROBINSON, JR. JUDGE

Dear Counsel:

Defendant, Virtual OfficeWare (DE), LLC's ("VOW"), filed a Motion to Dismiss for Lack of Venue pursuant to Superior Court Civil Rule 12(b)(3) (the "Motion") arguing that a forum selection clause allegedly incorporated into an agreement between the parties requires that any litigation be conducted in a Massachusetts court. For the following reasons, VOW's Motion is DENIED.

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A. Background

VOW is a Delaware limited liability company based in Pittsburgh, Pennsylvania that provides medical billing and revenue cycle management services to its clients.[1] Plaintiff, Aspira Health, LLC ("Aspira"), is a Delaware limited liability company that provides healthcare services to its patients and is headquartered in Lewes, Delaware.[2] Relevant to this litigation is a non-party software provider located in Watertown, Massachusetts, Athenahealth, Inc. ("Athena").[3] Athena authorized VOW to utilize its software platform, athenaNet, in its ordinary course of business to provide services to its clients.[4]

VOW entered into four contracts, titled "service proposals," with Aspira between September 10, 2020 and October 5, 2021.[5] The service proposals define the work that VOW would complete for Aspira and the fee obligations.[6] Unfortunately, the four service proposals are very brief and do not contain many terms and conditions that one would expect to find in business contracts.

The first service proposal, dated September 10, 2020 (the "First Contract"), consists of four pages, and is signed by representatives of VOW and Aspira. The

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title page includes the following statement: "This proposal upon acceptance by Aspira Health LLC will become effective as a binding agreement and form part of the Athena Services Agreement." However, the First Contract does not define what constitutes the "Athena Services Agreement" and there are no references to any other documents in the First Contract.

Notwithstanding, several documents are apparently attached to the First Contract. First, there is an Addendum A titled "Athena Services Agreement- Managed Entity" that is executed by VOW and Aspira, but not Athena, even though there is a signature block for Athena.[7] Addendum A does not explicitly reference the First Contract, although there are references to a "Master Agreement" dated March 25, 2020 between VOW and Athena and an "Athena 'Proposal' #Q-69930-1." Neither of these referenced documents have been provided and it is not clear how they relate to the First Contract, if at all. Second, there is an Addendum B titled "Terms and Conditions of Athena Services." Addendum B defines the parties (Aspira, VOW, and Athena) and includes fourteen sections of terms and conditions, and an Exhibit A.[8] Section 12 of Addendum B ("Section 12") contains the forum selection language that is the basis of VOW's Motion. [9]

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In early 2022, Aspira suspected that VOW was mismanaging Aspira's accounts by failing to collect revenues, improperly coding claims, and erroneously credentialing or completely failing to credential Aspira's doctors.[10] According to the Complaint, Aspira's investigation revealed that VOW had failed to collect hundreds of thousands of dollars from Aspira patients, unilaterally wrote-off outstanding accounts receivable claims, and did not provide any coding audits as required under the First Contract.[11]

On March 15, 2022, Aspira alerted VOW that it was terminating the parties' contracts. Significantly, the termination letter from Aspira referenced Section 3 of the Addendum B.[12] Aspira later filed its Complaint with this court on May 9, 2022.[13]The Complaint alleges that VOW breached each of the four contracts and was negligent by failing to properly work and collect on Aspira's accounts.[14]Additionally, Aspira claims VOW made material misrepresentations and omissions to induce Aspira into entering subsequent service contracts.[15] VOW filed this Motion

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on July 8, 2022.[16]

B. The Parties' Contentions

VOW contends that all the terms and conditions found in Addendum B, including Section 12, are incorporated by reference into the First Contract and are enforceable against the parties.[17] VOW asserts that Section 12 is a binding forum selection clause for any disputes between the parties.[18] Additionally, VOW claims that Aspira acknowledged that all of the terms and conditions in Addendum B were binding on the parties because it referenced Section 3 of Addendum B in its notice to terminate services on March 15, 2022.[19]

Aspira contends Section 12 applies only to disputes that arise between Aspira and Athena.[20] Aspira maintains that Addendum B governs Aspira's use of Athena's software platform and that VOW is an agent of Aspira.[21] Aspira argues that Athena is not a party to the instant dispute and, therefore, the forum selection clause does not apply to the claims in its Complaint.[22] Also, Aspira points out that even if the venue provision is found to be part of the First Contract, the second, third, and fourth

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service proposals (the bases of the breach of contract claims in counts II through IV of the Complaint) between VOW and Aspira are silent as to venue.

C. Standard of Review

Superior Court Civil Rule 12(b)(3) governs a motion to dismiss for improper venue.[23] When ruling on a motion to dismiss, the court is not to resolve issues of material fact or decide the merits of the case but should rather test the sufficiency of the complaint.[24] In its review, the court is to assume as true all the well-pleaded facts in the complaint and view those facts and all inferences drawn from them in the light most favorable to the plaintiff.[25] The court should "give effect to the terms of private agreements to resolve disputes in a designated judicial...

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