# Blue Chip Alliance, LLC v. CHETU, Inc.

> District Court, S.D. Florida · August 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10765255

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** August 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 1:22-CV-61602-LEIBOWITZ/REID

BLUE CHIP ALLIANCE, LLC,

Plaintiff,

vs.

CHETU, INC.,

Defendant.
________________________

REPORT AND RECOMMENDATION ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT

This matter is before the Court upon:
1. Defendant Chetu, Inc.’s (“Defendant” or “Chetu”) Motion for Summary Judgment
(“Chetu’s Motion”) and Statement of Facts in Support [ECF Nos. 101 and 102]; Plaintiff
Blue Chip Alliance, LLC’s (“Plaintiff” or “Blue Chip”) Opposition and Statement of Facts
in Opposition [ECF Nos. 109 and 110]; and
2. Blue Chip’s Motion for Summary Judgment (“Blue Chip’s Motion”) and Statement of
Facts in Support [ECF Nos. 103 and 104]; Chetu’s Opposition and Statement of Facts in
Opposition [ECF Nos. 107 and 108]; and Blue Chip’s Reply in Support of its Motion for
Summary Judgment and Reply Statement of Facts. [ECF Nos. 115 and 114].
These matters were referred pursuant to 28 U.S.C. § 636 by the Honorable David S.
Leibowitz for a Report and Recommendation. [ECF No. 148]. For the reasons stated below, the
undersigned respectfully RECOMMENDS that Chetu’s Motion [ECF No. 101] and Blue Chip’s
Motion [ECF No. 103] be GRANTED IN PART and DENIED IN PART.
BACKGROUND
This lawsuit arises out of a failed business relationship between Chetu, a software
developer, and Blue Chip, an owner and operator of eleven barber shops in Washington and
Montana. [ECF No. 86 at 3]. As addressed fully in the section that follows, the agreement called
for Chetu to provide software development services. In exchange for approximately $150,000 in

payment, Blue Chip alleges it received nothing from Chetu.
Blue Chip’s Second Amended Complaint seeks a declaratory judgment of noninfringement
and ownership of copyright (Count I) and alleges breach of contract (Count II), fraud in the
inducement (Count III), and violations of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”) (Count IV). [ECF No. 86]. Chetu’s single counterclaim for breach of contract is
alleged in response to Blue Chip’s First Amended Complaint. [ECF No. 27].
I. Procedural Background
The undersigned will provide a brief procedural summary of the case before analyzing the
merits of the instant Motions.
On February 17, 2023, the district judge previously assigned to this case, Judge Rodney

Smith, partially granted Chetu’s Motion to Dismiss the Complaint. [ECF No. 25]. On declaratory
judgment (Count I), Judge Smith granted dismissal with leave to refile because Blue Chip failed
to plead that the software contract is ambiguous. [Id. at 10]. On breach of contract (Count II), the
Court held that Blue Chip had adequately stated a claim based on Chetu’s failure to give a two-
week notice prior to terminating the contract. [Id. at 11]. On fraud in the inducement (Count III),
the Court bifurcated the claim, which alleged both pre-contract representations and post-contract
representations. [Id. at 12]. The Court dismissed Chetu’s pre-contract representations based on a
review of the contract’s integration clause, but denied dismissal based on Chetu’s post-contract
representations. [Id. at 12–13]. On FDUTPA (Count IV), the Court dismissed—without leave to
replead—two theories brought under this claim: (1) it dedicated an entire team of professionals to
each project and (2) Chetu’s enforcement of the SLAPP clause of the contract. [Id. at 14–15].1
On March 15, 2024, Judge Smith denied Chetu’s Motion for Judgment on the Pleadings as
to Counts I and IV. [ECF No. 129]. On declaratory judgment (Count I), the Court found that no

ambiguity exists in the contract’s intellectual property clause (Section 7), and instead held that the
issue is a question of fact, not of contract interpretation. [Id. at 11]. On Blue Chip’s FDUTPA
claim (Count IV), the Court held that Chetu had not established that it is entitled to judgment on
the pleadings on Blue Chip’s two alleged theories that were dismissed in the order of dismissal.
[Id.]. The instant Motions for Summary Judgment [ECF Nos. 101, 103] followed.
II. The Statements of Material Facts and the Applicable Rules
As an initial matter, there are several deficiencies with the parties’ Statements of Material
Facts and responses. First, the undersigned previously addressed the deficiencies in Plaintiff’s
Statement of Material Facts in support of its Motion but determined that it can disregard Plaintiff’s
improper inclusions in making a recommendation on summary judgment. [See ECF No. 164].

Second, a review of Defendant’s Opposition to Plaintiff’s Statement of Facts [ECF No. 108]
reveals that Defendant fails to offer controverting evidence when disputing some of the facts
asserted by Plaintiff. For example, Defendant disputes virtually every deadline provided to Blue
Chip (to complete either all or part of the project per the contract) because the deadlines were never
incorporate into the Contract. [See e.g., ECF No. 108 ¶¶ 8, 19, 21, 26]. This is despite testimonial
and documentary evidence supporting, at a minimum, deadlines for partial completion of the
project. [Id.]. In another example, Defendant states “disputed” with respect to paragraph 9, which

1 In sum, the Order granted Plaintiff leave to file an Amended Complaint to “[amend] only its
declaratory judgment claim.. . .” [ECF No. 25 at 15].
discusses positive progress updates provided by Chetu regarding the status of the project, from the
inception of the project through early June of 2021. [ECF Nos. 104 ¶ 9; 108 ¶ 9; 104-1 at 2]. But
Defendant wholly fails to dispute this fact with evidentiary support, choosing instead to explain
the issues that led to Phase II of the project in early June of 2021. [Id.]. Accordingly, the Court

deems facts admitted where Plaintiff provides sufficient evidentiary support for its assertion, and
Defendant fails to provide controverting evidence to support disputing the assertion. Fed. R. Civ.
P. 56(e). S.D. Fla. L.R. 56.1(c)–(d).
Additionally, as to Defendant’s Statement of Material Facts in support of its Motion [ECF
No. 102], Defendant failed to reply to the additional facts alleged by Plaintiff. [ECF Nos. 110,
114]. Local Rule 56(b)(3)(A) directs a movant to respond to an opponent’s additional facts.
Because Defendant provided no response to Plaintiff’s additional facts, the Court deems admitted
those facts2 for which Plaintiff provided sufficient evidentiary support.
III. The Undisputed Facts3
The undersigned finds that the following facts are undisputed. Blue Chip is the owner and

operator of eleven modern-day barber shops in Washington and Montana. [ECF Nos. 104 ¶ 1; 108
¶ 1]. The company integrates technological conveniences to enhance the customer experience.
[Id.]. Blue Chip launched a search to identify a software development team who could create
and/or improve its customer loyalty and scheduling experience, as well as automate payroll and
other administrative tasks. [ECF Nos. 104 ¶ 2; 108 ¶ 2]. Blue Chip and Chetu executed a Contract

2 Most of Blue Chip’s additional facts include legal conclusions and unnecessary adjectives. [See
ECF Nos. 110 ¶¶ 16–17; 114 ¶¶ 15–17]. As discussed in the Court’s Order on Chetu’s Motion to
Strike, the undersigned will disregard legal conclusions and unnecessary adjectives alleged to be
undisputed material facts. [ECF No. 164].
3 The Court has determined the facts, which are undisputed unless otherwise noted, based on the
parties’ submissions. For purposes of summary judgment, the Court presents the facts in the light
most favorable to the non-moving party as required by Fed. R. Civ. P. 56.
and Work Order late February of 2021, with work commencing in March of 2021. [ECF Nos. 104
¶ 3; 108 ¶ 3]. In March of 2021, the parties entered into a second Work Order. [ECF Nos. 108 ¶ 2
of Opposing Statement of Facts; 27-1 at 4].4 Specifications regarding the project were provided
by Blue Chip and Blue Chip approved the design documents and project plans. [ECF Nos. 108 ¶¶

3, 4 of Opposing Statement of Facts; 114 ¶¶ 3, 4].
At that time, Blue Chip had successfully been running its existing Point of Sale (“POS”)
system at all of its locations. [Id.]. Blue Chip originally hired Chetu for the sole purpose of fully
integrating Blue Chip’s existing POS system into the Netspend and Paychex Application
Programmatic Interfaces (“APIs”), which became known as Phase I of the project. [ECF Nos. 104
¶ 6; 108 ¶ 6]. In relevant part, the Contract and Work Orders included provisions regarding
termination, scope of work, non-disparagement, and intellectual property rights, among other
clauses. [Contract at ECF No. 86-1].
After the Contract was executed, but before work had commenced, Chetu’s Technical
Project Manager, Atma Ram Tripathi, along with his development team, attended a meeting with

the Blue Chip team assuring it that Chetu had the requisite skill and experience to integrate the
Blue Chip POS with the Netspend and Paychex APIs. [ECF Nos. 104 ¶ 7; 108 ¶ 7]. Mr. Tripathi
expected integration of, at a minimum, the Netspend API, by mid-May of 2021. [ECF Nos. 104 ¶
8; 108 ¶ 8; ECF Nos. 107-3 at 155–156, 166–167].
From March of 2021 to early June of 2021, no one at Chetu suggested that there were
problems with the integration or issues with meeting the estimated deadlines. [ECF Nos. 104 ¶ 9;
108 ¶ 9; 104-1 at 2]. Chetu instead provided positive updates regarding the development of the

4 The two Work Orders are substantively identical, save for the estimated start dates. [See ECF
No. 27-1].
project. [Id.]. On May 27, 2021, an e-mail exchange between Chetu team members stated that the
team was “new in JFX and [were] taking longer than expected.” [ECF No. 104 at ¶ 16]. Then,
during a weekly Zoom meeting between the Blue Chip and Chetu teams in late May or early June
of 2021, Chetu informed Blue Chip that the language the POS system was written on, Java FX,

was no longer supported by Oracle, and that this foundation would pose issues with integration of
the system. [ECF Nos. 104 ¶ 10; 108 ¶ 10]. This became known as Phase II of the project. Blue
Chip’s expert, Paul Reimer, stated in his declaration that there was no reason that the Blue Chip
POS could not be integrated with the requested NetSpend and Paychex APIs. [ECF Nos. 104 ¶ 13;
104-2 at ¶¶ 10–12]. Jared Strand, the developer who built the prior POS for Blue Chip, advised
against rebuilding the POS as he believed the application he built was sufficient. [ECF Nos. 108 ¶
12; 107-4 at 134]. He also estimated that the project should have taken at most six to eight months
to complete. [ECF Nos. 114 ¶ 18; 101-4 at 236:8–24].
Then, in a June 3, 2021, e-mail to one of Blue Chip’s owners, Mike Howe, Mr. Tripathi
stated that the redevelopment of the POS application would take approximately 95 days to

complete. [ECF Nos. 104 at ¶ 19; 104-1 at 10]. The deadline was not met. [ECF No. 104 at ¶ 20].
On October 22, 2021, Mr. Sharma e-mailed Mr. Howe that the “firm delivery date will be 11/18.”
[ECF Nos. 104 at ¶ 21; 104-1 at 15 (emphasis in original)]. On November 19, 2021, Chetu agreed
to provide Blue Chip with an incremental release, the first being December 3, 2021, and that “[t]he
project will underline all the issues that will be fixed by that time.” [ECF Nos. 104 at ¶ 22; 104-1
at 19]. This estimated deadline was not met. [ECF Nos. 104 at ¶ 23; 108 at ¶ 23]. On May 12,
2022, Mr. Sharma recommended to Mr. Howe that Chetu seeks to “finalize the features for proper
demonstration.” [ECF No. 104-1 at 21]. He stated that “the following two integration has been
done, currently we are working on unit testing and fixing the missed scenarios[,]” and listing
directly below “Paycheck Integration – We will conclude the development by tomorrow (5/13)”
and “Netspend Integration – We will conclude the development on Monday (5/16).” [Id.; ECF
Nos. 104 at ¶ 24; 108 ¶ 24]. Again, these deadlines were not met. [ECF Nos. 104 ¶ 25; 108 ¶ 25].
On July 1, 2022, Mr. Tripathi provided an update on the status of the project to Mr. Howe, stating

in relevant part that “[f]or NetSpend (MVP) and Paychex integration, we are targeting to complete
the development by 7/28/2022.” [ECF Nos. 104 ¶ 26; 108 ¶ 26; 104-1 at 30].
On July 13, 2022, Aaron M. KcKown, an attorney hired by Blue Chip, sent a letter to Chetu
confirming the dates outlined in the July 1, 2022 e-mail (the “McKown Letter”). [ECF Nos. 104 ¶
26; 108 ¶ 26; 104-1 at 31–32]. That same day, Mr. Tripathi informed the Blue Chip team that,
“[p]er your request, the team will be terminated today.” [ECF Nos. 104 ¶28; 108 ¶ 28; 104-1 at
33]. Chetu’s CEO, Atal Bansal, thereafter gave an order to Chetu’s employees to stop all work on
the Blue Chip project. [ECF Nos. 104 ¶ 29; 108 ¶ 29].
For each month services were rendered, from March 2021 to July 2022, Chetu sent Blue
Chip monthly invoices. [ECF Nos. 108 ¶ 11; 114 ¶ 11]. In the end, Blue Chip paid Chetu

approximately $150,000 to complete the project. [ECF Nos. 104 ¶ 20; 108 ¶20].
LEGAL STANDARD
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure (hereafter “Rule 56(a)”)
“[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact is
material if it ‘might affect the outcome of the suit under the governing law.’” Fonseca v. Wal-Mart
Stores, E., LP, No. 18-CV-62768, 2019 WL 7371813, at *2 (S.D. Fla. 2019) (quoting Anderson,
477 U.S. at 248).
The movant must support its assertion that there is no genuine dispute as to any material
fact by “citing to particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials[.]” Fed. R.
Civ. P. 56(c)(1)(A). “If a party . . . fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court[, among other things,] may: . . . consider the fact undisputed for
purposes of the motion.” Acheron Portfolio Tr. v. Mukamal as Tr. of Mut. Benefits Keep Policy
Tr., 18-CV-25099, 2021 WL 7368630, at *2 (S.D. Fla. Sept. 24, 2021), report and
recommendation adopted, 18-25099-CIV, 2022 WL 354241 (S.D. Fla. Feb. 7, 2022), aff’d, 22-
10748, 2022 WL 17420869 (11th Cir. Dec. 6, 2022) (citing Fed. R. Civ. P. 56(e)).
When determining whether a genuine issue of material fact exists, courts “view all
evidence and draw all reasonable inferences in favor of the nonmoving party.” Smith v. Royal

Caribbean Cruises, Ltd., 620 F. App’x 727, 729 (11th Cir. 2015). Courts “resolve factual
controversies in favor of the nonmoving party [ ] only when there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994). “We do not, however, in the absence of any proof, assume that
the nonmoving party could or would prove the necessary facts.” Id. (emphasis in original).
“The standard of review for cross-motions for summary judgment does not differ from the
standard applied when only one party files a motion.” Torres v. Rock & River Food Inc., 244 F.
Supp. 3d 1320, 1327 (S.D. Fla. 2016) (citing Am. Bankers Ins. Grp. v. United States, 408 F.3d
1328, 1331 (11th Cir. 2005)). “Cross-motions for summary judgment will not, in themselves,
warrant the court in granting summary judgment unless one of the parties is entitled to judgment
as a matter of law on facts that are not genuinely disputed.” Torres, 244 F. Supp. 3d at 1327
(internal quotation marks and citation omitted). “[A] court must consider each motion on its own
merits, resolving all reasonable inferences against the party whose motion is under consideration.”

Id. at 1327–28.
ANALYSIS
Chetu moves for summary judgment on all of Blue Chip’s claims as well as its single
counterclaim for breach of contract. [ECF No. 101]. Blue Chip moves for summary judgment on
breach of contract (Count II); fraud in the inducement (Count III); and violations of FDUTPA
(Count IV). [ECF No. 103]. The undersigned will address each claim in numerical order.
A. Declaratory Judgment

The Federal Declaratory Judgment Act states that, “any court of the United States, upon
the filing of an appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be sought.” 28
U.S.C. § 2201(a). “For a controversy to exist, ‘the facts alleged, under all the circumstances, [must]
show that there is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’” Atlanta Gas
Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995) (quoting Maryland Casualty
Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).
a. Chetu’s Motion for Summary Judgment on Blue Chip’s Request for
Declaratory Judgment (Count I)

Chetu’s Motion seeks summary judgment on Count I of the Second Amended Complaint,
which request a declaration from the Court establishing:
(i) Blue Chip as the copyright owner or irrevocable licensee of the POS application,
related code, and documentation, (ii) declaring that Blue Chip has not infringed,
and is not now infringing, willfully or otherwise, any copyright held by Chetu in
the POS application, related code, or documentation, and (iii) all copyright and all
intellectual property rights relating to the POS application have been assigned or
licensed to Blue Chip in perpetuity for which no further compensation is or will
ever be owed.

[ECF No. 86 at 19].

Section 7 of the contract discusses the parties’ intellectual property rights. It states, in part:
a) Chetu Existing Intellectual Property. “Chetu Existing Intellectual Property”
means any Intellectual Property created, developed, and reduced to practice by
Chetu prior to the commencement of Services under this Agreement that are
used by Chetu in creating, or are incorporated within, any Deliverable, the
Services or other work performed under this Agreement. Chetu shall retain all
right, title and ownership to any Chetu Existing Intellectual Property that is
incorporated into any Deliverable of the Services.

b) Chetu Created Intellectual Property. “Chetu Created Intellectual Property”
means any Intellectual Property created, developed, or reduced to practice by
or for Chetu in performing the Services under this Agreement. Chetu Created
Intellectual Property shall be considered “work made for hire” under
applicable copyright law and the copyright will, subject to Customer’s
compliance with the terms of this Agreement and upon receipt of payment
in full, be owned solely and exclusively by Customer.

c) Licenses.
I) Subject to Section 10, Chetu hereby grants to Customer a worldwide,
irrevocable, non-exclusive, fully-paid up, royalty free, transferable, and
sub-licensable license to use, sell, and distribute the Chetu Existing
Intellectual Property only insofar as is incorporated in, or required for
Customer to use, sell, or distribute, the Deliverable or any work product
resulting from the Services.
II) Except as otherwise specifically provided in this Agreement, each party
acknowledges and agrees that no licenses or rights to any of the
Intellectual Property of the one party are given or intended to be given
to the other party.

[ECF No. 86-1 ¶ 7(a)–(c) (emphasis added)].

Chetu argues in its Motion that Section 7 of the contract expressly conditions Blue Chip’s
ownership rights on “payment in full” for Chetu’s services. [ECF No. 101 at 2]. This reference to
“payment in full[,]” it believes, encompasses all outstanding invoices. [Id. at 3]. It also argues that
licensing rights are predicated on compliance with Section 10, which governs termination of
services under the contract. [Id.].
Blue Chip raises apparent questions of fact challenging Chetu on three fronts: First, the

“work made for hire” doctrine, which is referenced in Section 7, provides ownership of the
software to Blue Chip immediately upon creation, pursuant to 17 U.S.C. § 201. [ECF No. 109 at
3–4]. This doctrine, it argues, creates ambiguity in the contract when taken together with the
requirement that payment be made in full before the intellectual property is transferred. [Id.].
Second, it argues that there is ambiguity as to whether “payment in full” encompasses payment for
work related to producing the software at issue versus payment of other ancillary fees. [Id. at 5].
It believes that this reference to “payment in full” is narrow—providing for payment for work done
on the software code itself, particularly when compared with Section 10’s requirement of payment
for “all unpaid charges.” [Id.]. Third, Blue Chip argues there is an inherent ambiguity as to whether
the $9,000 deposit it paid at the commencement of the project (pursuant to the terms of the Work

Orders) should have been applied to any final bill. [Id].
The district judge’s dispositive orders provide insight into the parties’ arguments. Chetu’s
Motion to Dismiss was granted on Blue Chip’s request for entry of declaratory judgment because
“Plaintiff [did not plead] that the meaning of “payment in full” is ambiguous[,]” granting Blue
Chip leave to replead. [ECF No. 25 at 10]. Blue Chip’s First Amended Complaint expands on this
alleged ambiguity, and the allegations remained unchanged in the operative Second Amended
Complaint. [ECF Nos. 26 ¶¶ 60–62; 86 ¶¶ 60–62].
The district judge’s order on Chetu’s Motion for Judgment on the Pleadings addressed the
three arguments Blue Chip makes in opposition to Chetu’s Motion. [ECF No. 129]. First, the Court
explained that there is no ambiguity in the contract’s reference to work made for hire “because [17
U.S.C. § 201(b)] expressly permits the parties to change the terms of this statutory section[,]”
which the parties did by conditioning transfer of the copyright on payment in full. [Id. at 10].
Second, the Court disagreed with Blue Chip’s argument that the term “payment in full” used in

section 7(b) of the contract, when compared to Section 10’s reference to “all unpaid charges[,]” is
ambiguous, citing a failure to offer authority in support of the argument. [Id. at 11]. Third, on Blue
Chip’s assertion that there is ambiguity as to whether Plaintiff’s deposit paid to Chetu should have
been applied to any final bill, the Court likewise disagreed finding the contract unambiguous. [Id.].
Importantly, the Court stated that “the issue raised by Plaintiff is not a matter of contract
interpretation but a question of fact—whether Chetu applied Plaintiff’s deposit to the outstanding
balance and thus Plaintiff has paid Chetu in full.” [Id. (emphasis added)]. Therefore, a question of
fact exists as to whether Plaintiff has fully paid Chetu. Resolution of that fact will determine who
owns the copyrights at issue. [Id.].
Chetu’s Motion does little to advance its argument, and its failure to file a reply in support

leaves several theories advanced by Blue Chip unaddressed. The only issue before the Court on
Chetu’s Motion is whether “payment in full” was provided by Blue Chip. [ECF No. 101 at 3].
Chetu asserts that Blue Chip failed to pay a June 2022 Invoice (#52026) in the amount of
$4,825. [ECF No. 102 ¶ 14]. It cites to a transaction report and corresponding invoices. [ECF No.
101-7 at 3]. According to the customer balance details, the May 31 and June 30 invoices were left
unpaid, leaving Blue Chip with a balance of $14,450. [Id. at 1]. Then, a $4,800 credit from
“Customer Deposit” was applied, leaving a balance of $9,650. [Id.]. A second $4,800 credit was
applied, leaving the balance at $4,850, plus an added finance charge. [Id.]. However, the last
invoice, dated July 31, has a balance due of zero dollars. [Id. at 4].
Blue Chip disputes this, citing to the declarations of Mr. Bansal and Mr. Howe. [ECF No.
110 ¶ 14]. Most of the cited pages of Mr. Bansal’s deposition include nothing more than a
disagreement over whether the June invoice was paid. [ECF No. 104-7 at 334:24–336:23]. Mr.
Bansal, however, confirmed that the $9,000 deposit was applied. [Id. at 338:13–22]. Mr. Bansal

ultimately stated that approximately $5,800 is owed on the invoices. [Id. at 338:23–340:8].
According to Mr. Howe, as of July 13, 2022 (the date the McKown Letter was sent and Chetu
ceased all work on the project), Blue Chip did not owe any money to Chetu. [ECF No. 104-1 ¶29].
It cites to an e-mail sent on the same date, an hour before Chetu sent its termination e-mail notice,
on behalf of a Chetu employee identified by Mr. Bansal as a member of the Contracts Compliance
and Accounting division. [Id.]. The e-mail states that Chetu received the scheduled payment, and
that it may take up to two business days for the payment to clear. [Id.]. The e-mail also notes that
the July 15, 2022 invoice is attached, asking for payment. [Id.].
The undersigned finds an issue of material fact persists, precluding summary judgment.
Chetu alleges that it is owed $4,850, yet its latest invoice identifies a balance due of zero dollars.

[ECF No. 101-7 at 4]. In its Motion and its statement of facts, it fails to address this point and
others, such as, for example, the source of the $9,600 credited on July 6 and July 15 to the total
amount owed. The Court cannot, therefore, reach the issue of whether “payment in full” was
received, according to Section 7 of the contract, which would vest intellectual property rights in
Blue Chip. Accordingly, Chetu’s Motion is denied on Count I of Blue Chip’s Second Amended
Complaint.
B. Breach of Contract

“Summary judgment is appropriate in a contract dispute where the contract is clear and
unambiguous on its face.” Panama Music, Corp. v. Universal Music Grp. Inc., No. 12-20200-CIV,
2013 WL 12310734, at *6 (S.D. Fla. July 9, 2013). “Language whose meaning is otherwise plain
is not ambiguous merely because the parties urge different interpretations in the litigation.” Id.
(internal quotation marks and citation omitted). Under Florida law, . . . “the elements of a breach
of contract action are: (1) a valid contract; (2) a material breach; and (3) damages.” Alhassid v.

Bank of Am., N.A., No. 14-CIV-20484, 2015 WL 11216721, at *4 (S.D. Fla. Sept. 14, 2015)
(internal quotation marks omitted) (citing J.J. Gumberg Co. v. Janis Servs., Inc., 847 So. 2d 1048,
1049 (Fla. 4th DCA 2003)); Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. 2d DCA 2006).
Further, “[t]o constitute a vital or material breach, a defendant’s non-performance must be
such as to go to the essence of the contract.” Marchisio v. Carrington Mortg. Servs., LLC, 919
F.3d 1288, 1313 (11th Cir. 2019) (quoting Sublime, Inc. v. Boardman’s Inc., 849 So. 2d 470, 471
(Fla. 4th DCA 2003)). “[T]he party alleged to have breached the contract must have failed to
perform a duty that . . . is of such significance that it relieves the injured party from further
performance of its contractual duties.” Burlington & Rockenbach, P.A. v. Law Offices of E. Clay
Parker, 160 So. 3d 955, 960 (Fla. 5th DCA 2015) (cleaned up). “A party’s failure to perform some

minor part of [its] contractual duty cannot be classified as a material or vital breach.” Covelli
Family, L.P. v. ABG5, L.L.C., 977 So. 2d 749, 752 (Fla. 4th DCA 2008).
a. Blue Chip’s Motion for Summary Judgment on its Breach of Contract Claim
(Count II)

Blue Chip’s Second Amended Complaint alleges a single claim for breach of contract but
more than one breach. In its Motion, Blue Chip moves for summary judgment on the theory that
Chetu failed to provide two-weeks’ notice before termination, pursuant to Section 10 of the
contract. [ECF No. 103 at 3]. Blue Chip argues that it has demonstrated the absence of any genuine
issue of material fact on each required element of its claim. Specifically, Blue Chip argues that it
is undisputed that the parties entered into a written contract; the contract required a two-week
notice period before termination could be effective; Chetu stopped all work as of July 13, 2022,
without providing the requisite two-week notice, constituting a material breach; and damages
resulted, amounting to $156,000. [Id. at 3–7].
Chetu alleges that a genuine dispute of material fact remains on this theory of liability. It

relies on a the McKown Letter, dated, July 13, 2023, that purportedly expressed “a clear and
unequivocal expression of intent to refuse payment of issued invoices before the time payment
was due, thereby justifying Chetu’s immediate termination as an anticipatory repudiation of the
contract.” Alternatively, it argues that, even if the immediate termination of work is a breach of
the termination clause, it is immaterial. [ECF No. 107 at 2–3].
Here, the parties do not dispute the existence of the contract and two Work Orders. The
disagreement stems from whether the McKown Letter constitutes a termination of the contract
and, if it does not, whether Chetu’s failure to provide a two-week notice prior to terminating the
contract constitutes a material breach. Section 10 of the contract states:

10) Termination of Conclusion of Services

a) Either part may terminate this Agreement and/or Work Order issued
hereunder for any reason or no reason whatsoever, at any time by providing a two
(2) week advance written notice to the other party.
[ECF No. 86-1 at 3].
Chetu admits that it stopped all work on the project July 13, 2022, the date it received the
McKown Letter. [ECF Nos. 104 ¶¶ 28–29; 108 ¶¶ 28–29; 104-1 at 33]. The undersigned therefore
agrees that Chetu failed to provide the requisite notice of termination pursuant to Section 10 of the
contract, constituting a breach.
Chetu argues that the McKown Letter was a clear and unequivocal expression of intent to
refuse payment. [ECF No. 107 at 2]. It believes that the letter demanded that the company complete
the entire application and deliver it to Blue Chip by the stated deadlines, despite the contract and
Work Orders stating that Chetu would only provide “services” and not an “end product.” [ECF
No. 107 at 2–3]. Chetu also relies on the integration clause in the contract, which excludes any
representations not expressed in the agreement and requires any amendment to be made in writing,

signed by both parties. [Id. at 3].
To satisfy its burden, Chetu “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, Chetu must go beyond the pleadings and “identify affirmative
evidence” which creates a genuine dispute of material fact. Crawford–El v. Britton, 523 U.S. 574,
600 (1998). Here, Chetu’s only citation to the record on this issue is Mr. Bansal’s deposition
transcript where he explained that a receipt of a legal demand letter is a precursor to litigation.
[ECF No. 107 at 3 citing 107-1 at 343:8–345:20]. This is insufficient. The existence of some
factual disputes between the parties will not defeat an otherwise properly grounded summary
judgment motion; “the requirement is that there be no genuine issue of material fact.” Anderson,

477 U.S. at 248. Chetu’s alleged dispute regarding the interpretation of the McKown Letter is not
genuine. Indeed, a reading of the letter demonstrates that it was not a clear and unequivocal
expression of intent to refuse payment. It merely memorializes the agreed deadlines for various
deliverables as well as payments made by Blue Chip in reliance of those stated deadlines. [ECF
No. 104-1 at 31–32]. “When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007).
Turning to Chetu’s failure to provide adequate notice of termination, Chetu believes the
notice clause is immaterial. [ECF No. 107 at 2]. Blue Chip argues that the clause is material,
relying on Chetu’s July 1, 2022, e-mail which states that “[f]or NetSpend (MVP) and Paychex
integration, we are targeting to complete the development by 7/28/2022.” [ECF Nos. 104 ¶ 26;

108 ¶ 26; 104-1 at 30 (emphasis added)]. Blue Chip asserts that, had Chetu honored the termination
clause and provided a two-week notice as of the date the McKown Letter was received, the contract
would have allowed it to cease all work two weeks later—by July 29, 2022. [ECF No. 103 at 6].
Therefore, the July 28, 2022, deadline—whereby Chetu promised integration of NetSpend and
Paychex—would have been met prior to the expiration of the two-week notice clause. [Id.].
“An essential, or material, term is ‘[a] contractual provision dealing with a significant issue
such as subject matter, price, payment, quantity, quality, duration, or the work to be done.’”
Sunshine Children's Learning Ctr., LLC v. Waste Connections of Florida, Inc., 21-CV-62123,
2023 WL 2809509, at *7 (S.D. Fla. Apr. 6, 2023) (citing U.S. Doe v. Health First, Inc., No. 6:14-
cv-501-Orl-37DCI, 2017 WL 1929700, at *4 (M.D. Fla. May 10, 2017) quoting Material Term,

Black’s Law Dictionary (9th ed. 2009)).
While it is unclear whether the “entire project” would be completed by the July 28, 2022,
deadline, It is undisputed that “the timeframe provided [was an] estimate[] of when a working
version of the application including the subject integrations would be provided assuming no
unforeseen obstacles.” [ECF No. 108 ¶ 26]. As such, Blue Chip would have received, at a
minimum, a working version of the application on July 28, 2022. It follows that, in the context of
the contract at issue, the termination clause is material. Certainly, other clauses of the contract,
such as payment and scope work to be completed, are intertwined with the notice provision which,
if followed, would have resulted in the production of a working version of the application. See
Lary v. Boston Sci. Corp., 1:11-CV-23820, 2014 WL 978823, at *8 (S.D. Fla. Mar. 13, 2014),
aff’d, 633 Fed. App’x 781 (11th Cir. 2016) (quoting In re 4Kids Entm’t, Inc., 463 B.R. 610, 683–
89 (Bankr. S.D.N.Y. 2011) “terminating a contract without complying with the notice and cure
provisions therein is itself a material breach”)); Sunshine Children’s Learning Ctr., LLC, 2023 WL

2809509, at *7 (analyzing a notice provision in the context of the contract as a whole and finding
that the provision is material).5
b. Chetu’s Motion for Summary Judgment on Blue Chip’s Breach of Contract
Claim (Count II)

Though not entirely clear from the briefing, Chetu appears to be seeking summary
judgment on all three theories under Blue Chip’s breach of contract claim. That is, Chetu’s failure
to (1) deliver a defect-free POS application on or before the firm delivery date of November 18,
2021; (2) deliver a functioning POS system by June 2022; and (3) provide the adequate two-week
notice. [ECF No. 101 at 4].
Issues persist through Chetu’s Motion, which fails to allege that there is no genuine issue
of material fact on this claim. Additionally, Chetu’s Statement of Facts in support of its Motion
provides a bare recitation of the facts in this case, failing to discuss, for example, correspondence
regarding the alleged November 18, 2021 and June 2022 deadlines on which it bases its argument
for summary judgment.
Chetu argues that the first two breaches are “strawmen because [they] are not based on any
duties required of Chetu under the contract.” [Id. at 4]. It relies on the terms of the contract, which
it argues does not require Chetu to deliver a defect-free application by an estimated deadline. [Id.].

5 Because the undersigned is recommending that the district court grant summary judgment for
Chetu’s breach of the notice clause of the contract, the undersigned need not address Blue Chip’s
argument that Chetu waived the defense of anticipatory breach because it failed to plead it as an
affirmative defense. [ECF No. 115 at 8].
Blue Chip counters that the contract and Work Orders expressly state that design and development
of the services are based on specifications provided by Blue Chip. [ECF No. 109 at 6]. Therefore,
it believes that the contract did not simply call for “consultants for software development.” [Id.].
As before, the Court’s review begins with the contract and Work Orders, which state as follows:

1) Description of Services. From time to time, on an as needed basis, Chetu
agree to provide consultants for information technology services as are identified
to Chetu by Customer. Such consultants and services shall be described in greater
detail on Work Order to be attached hereto from time to time in the form of Exhibit
A (the “Work Order”).

Description of Requested Services: Offshore consultants for software
support, design and development based on specifications provided by Customer.

[ECF No. 86-1 at 1–4].

As previously addressed, the parties do not dispute the existence of the contract and two
Work Orders. The disagreement here stems from the duties owed under the contract, which were
modified as of October 22, 2021. The Court’s February 17, 2023, order is instructive on this issue.
[ECF No. 25]. There, in the context of Chetu’s Motion to Dismiss, the district judge explained that
both parties agreed to a modification to the contract when Mr. Sharma, Chetu’s Director of
Operations, proposed “an alternative path to the solution” which would require additional work to
be performed at Plaintiff’s expense. [Id. at 12]. The e-mail from Mr. Sharma, dated October 22,
2021, provided a “firm delivery date [of] 11/18.” [ECF Nos. 104 at ¶ 21; 104-1 at 15 (emphasis in
original)]. In the order, the Court also found that Blue Chip adequately pled modification to the
“as is” provision of the contract based on Chetu’s continued representations that it would deliver
a fully functioning POS system. [ECF No. 25 at 12].
Now, at the summary judgment stage, based on the undisputed facts, the undersigned
agrees. The contract was modified after October 22, 2021, whereby Chetu promised to deliver a
fully functioning POS system by November 18, 2021. Indeed, it is a well-settled principle of
contract law that usually, “parties must agree to modifications of contracts and support the
modification with additional consideration.” See Diverse Elements, Inc. v. Ecommerce, Inc., 5 F.
Supp. 3d 1378, 1381 (S.D. Fla. 2014) (citing In re Estate of Johnson, 566 So.2d 1345, 1347 (Fla.
Dist. Ct. App. 1990)). Here, additional payments were made—totaling approximately $150,000—

in exchange for Chetu’s promise, which it failed to keep for about eight months thereafter, through
July of 2022, when Chetu ceased all work on the project. [ECF Nos. 104 ¶ 20; 108 ¶20]. The
services provided by Chetu were to be “based on specifications provided by Customer[,]” Blue
Chip. [Id. at 4]. Chetu and Blue Chip met on weekly Zoom calls to discuss various specifications,
and Chetu provided deadlines for completing part, or all, of the project. [ECF No. 102 ¶ 8].
Thereafter, the contract was modified, whereby Chetu promised to deliver a fully functioning POS
system by November 18, 2021. [ECF Nos. 104 at ¶ 21; 104-1 at 15]. Blue Chip paid Chetu in
exchange for its services. [ECF Nos. 104 ¶ 20; 108 ¶20]. Therefore, as to the theory of liability for
breach of contract related to the November 18, 2021, deadline, Chetu’s argument that the breach
related to “terms not agreed to” fails as a matter of law. [ECF No. 101 at 5].

Next, as to the theory of liability for breach of contract related to the June 2022 deadline,
while Chetu fails to allege facts to support the claim that a fully functioning POS system would be
completed by June 2022, Blue Chip, too, fails to allege in its opposition to the Motion or its
opposing to the Statement of Material Fact that a deadline of June 2022 was agreed to. The
undersigned will not address meritless and unsupported arguments and therefore denies Chetu’s
Motion on this theory of liability.
On Chetu’s theory that the two-week notice provision was breached, it makes the same
argument as it did in the opposition to Blue Chip’s Motion: the alleged breach is merely a technical
violation. [ECF No. 101 at 6]. The undersigned disagrees. The notice provision was a material
term, and Chetu breached the contract when it failed to provide the two-week notice to Blue Chip.
[See Analysis § (B)(a)]. Therefore, Blue Chip is entitled to summary judgment on its theory that
the notice provision of the contract was breached. The undersigned will address damages related
to this breach in §E of this report.

c. Chetu’s Motion for Summary Judgment on its Breach of Contract
Counterclaim (Count I)
Chetu argues it has conclusively proven its counterclaim for breach of contract relating to
Section 4 of the contract, which requires Blue Chip to tender payment for monthly invoices for
Chetu’s development services within fifteen (15) days. [ECF No. 101 at 16–17]. Blue Chip
apparently failed to pay the June 2022 invoice in the amount of $4,825. [Id. at 17]. Blue Chip
argues that it continued to pay all monthly fees billed and that Chetu was fully paid for all invoices
owed up and through the date of Chetu’s termination. [ECF No. 109 at 18]. The parties’ confusion
on pending payment (if any) is discussed at length in the preceding section regarding Blue Chip’s
request for declaratory judgment.
Summary judgment cannot be entered on this claim because Chetu failed to reallege it after
the filing of the Second Amended Complaint. The Complaint in this action was filed on August
26, 2022. [ECF No. 1]. It was then amended on February 21, 2023. [ECF No. 26]. Chetu filed is
Answer and Affirmative Defense to the First Amended Complaint, as well as its Counterclaim, on
March 8, 2023. [ECF No. 27]. Blue Chip then moved to amend its First Amended Complaint in
order to plead punitive damages. [ECF No. 72]. The district judge granted Blue Chip’s request,

ordering Blue Chip to amend is pleading. [ECF No. 84]. Blue Chip thereafter filed its (now
operative) Second Amended Complaint on October 10, 2023. [ECF No. 86]. While Chetu filed its
Answer and Affirmative Defenses to the Second Amended Complaint, the counterclaim for breach
of contract was not realleged. [See ECF No. 96].
It is well established that, “[a]n amended complaint, once filed, normally supersedes the
antecedent complaint.” Russell-Brown v. Univ. of Florida Bd. of Trustees, 1:09-CV-00257-MP-
GRJ, 2012 WL 1571393, at *3 (N.D. Fla. Mar. 21, 2012), report and recommendation adopted,
1:09CV257/MCR/GRJ, 2012 WL 3064242 (N.D. Fla. July 27, 2012); see also Fritz v. Standard

Sec. Life Ins. Co. of N.Y., 676 F.2d 1356, 1358 (11th Cir. 1982) (“Under the Federal Rules, an
amended complaint supersedes the original complaint.”); Lowery v. Ala. Power Co., 483 F.3d
1184, 1219 (11th Cir. 2007) (“[A]n amended complaint supersedes the initial complaint and
becomes the operative pleading in the case.”). Moreover, an “original pleading is abandoned by
the amendment, and is no longer a part of the pleader’s averments against his adversary.” Pintando
v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (quoting Dresdner Bank AG
v. M/V Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir. 2006)). Indeed, “positions taken only in
the superseded pleading are no longer part of the case.” Cieutat v. HPCSP Investments, LLC, CV
20-0012-WS-B, 2020 WL 4004806, at *2 (S.D. Ala. July 15, 2020).
Accordingly, because the Second Amended Complaint superseded the First Amended

Complaint, Chetu’s failure to reallege its previously asserted counterclaim is fatal, and the
counterclaim is deemed abandoned. See Bahama Bay II Condo Ass'n, Inc. v. United Nat’l Ins. Co.,
374 F. Supp. 2d 1274, 1278 (M.D. Fla. 2019) (denying summary judgment because the
counterclaim was not included in an answer and deemed abandoned); Stonen Tech. (HK) Co., Ltd.
v. GlobalGeeks, Inc., No. 20-cv-23251-Bloom/Louis, 2021 WL 86776, at *3–6 (S.D. Fla. Jan. 11,
2021) (same).
C. Fraud in the Inducement

“Under Florida law, to state a cause of action for fraud in the inducement, a party must
establish the following elements: 1) a false statement regarding a material fact; 2) the person
making the statement knew or should have known that the representation was false; 3) intent by
the person making the statement to induce action or reliance; and 4) injury suffered because of
justifiable reliance on the representation.” Int’l Star Registry of Illinois v. Omnipoint Mktg., LLC,
510 F. Supp. 2d 1015, 1024 (S.D. Fla. 2007) (citing Biscayne Inv. Group, Ltd. v. Guar. Mgmt.

Servs., Inc., 903 So. 2d 251, 255 (Fla. 3d DCA 2005)). Florida law places the duty on one who
undertakes to disclose material information “to disclose the information fully.” Gutter v. Wunker,
631 So.2d 1117, 1118–19 (Fla. 4th DCA 1994).
a. Blue Chip’s Motion for Summary Judgment on its Fraud in the Inducement
Claim (Count III)

Blue Chip’s Second Amended Complaint alleges one count for fraud in the inducement
based on more than one theory of liability and relies on both pre- and post-contract formation
representations. [ECF No. 86 at 20–22].6 As to Chetu’s post-formation representations, Blue Chip
alleges that Mr. Sharma made false representations to induce Mr. Howe and Blue Chip to continue
paying the monthly development fees after Chetu failed to deliver the software application by the
“firm delivery date” of November 18, 2021. [ECF No. 86 at ¶ 74]. Specifically, Blue Chip asserts
that the following representations were made:
1. an “elite technical council team” had been assigned specifically to Blue Chip’s
project in order to rapidly resolve ongoing technical issues with the POS
application and that the team had made progress on resolving such issues;

2. the Paycheck and Netspend integrations were done and were simply waiting for
testing and fixing missed scenarios;

3. Chetu was close to delivering a stable POS application.

4. Simmi and Mangaldeep continued to make knowingly false representations to
Mr. Howe in order to induce Blue Chip to continue paying monthly
development fees by sending regular “progress” reports, which falsely

6 Blue Chip’s pre-formation allegations were dismissed by the district judge. [See ECF No. 25 at
12–13].
represented the progress of the software allegedly being developed for Blue
Chip.
[Id.].
Blue Chip moves for summary judgment on two theories: (1) Chetu’s alleged false
statement about the functionality of Blue Chip’s original POS software, which led to Phase II of
the project; and (2) Chetu’s promised—and missed—completion dates, which Blue Chip relied on
in exchange for additional payment. [ECF No. 103 at 9–17].
On the first theory, Blue Chip argues that Mr. Tripathi assured Blue Chip that Chetu had
the requisite skills and experience to integrate the Blue Chip POS with Netspend and Paychex
APIs and that work would be completed within a few months. [Id. at 9]. Several deadlines were

provided to Blue Chip, as discussed in the undisputed facts of this report. [Id. at 10]. Blue Chip
also claims that its representatives were told that its existing POS system was “antiquated” and
could not support the integration. [Id.]. This statement, Blue Chip claims, was false. [Id.]. Blue
Chip relied on this statement and its payment of $124,000 for an additional sixteen months of
work. [Id. at 11]. On the second theory, Blue Chip believes that Chetu “continued a habitual and
calculated pattern of fraud concerning the length of time needed to complete [a redevelopment of
the system].” [Id. at 13]. It alleges that Chetu lied to Blue Chip when it stated it would complete
developing different phases of the project, by, for example November 18, 2021 and December 3,
2021. [Id. at 14]. These allegedly false statements induced Blue Chip to continue paying Chetu a
monthly $9,000 development fee. [Id.].

Conversely, Chetu argues that a genuine dispute of material fact remains. [ECF No. 107 at
4]. First, it argues that extra-contractual representations did not amend the contract and Work
Orders, which did not provide any deadlines for completion of the project. [Id.]. Second, the
estimates provided were allegedly nothing more than “future project completion deadlines based
on information then-available to Chetu.” [Id.]. Chetu cites to two cases, Extreme Crafts VII, LLC
v. Cessna Aircraft Co., 2011 U.S. Dist. LEXIS 163003 (S.D. Fla. 2011) and Zarella v. Pac. Life
Ins. Co., 755 F. Supp. 1218 (S.D. Fla. 2010), for the contention that opinions regarding future
actions, without intent or knowledge that the opinion is false, cannot form a basis for fraud. [ECF

No. 107 at 5]. Chetu therefore argues that there is no evidence that it knew any of its estimates
were false when it made them. [Id. at 6].
The undersigned finds that there is a factual dispute as to both theories, precluding
summary judgment on Blue Chip’s fraud claim.
First, on the theory that Chetu made false statements as to its existing POS system, the
parties present controverting evidence regarding whether or not Blue Chip must (as alleged by
Blue Chip) or may but was not required to (as alleged by Chetu) rebuild the POS system and
therefore begin Phase II of the project. Blue Chip takes the position that Chetu stated—
unequivocally—that the existing POS system could not support the integration of Netspend or
Paychex APIs. [ECF No. 103 at 10]. Conversely, Chetu takes the position that the proposal to

initiate Phase II was a mere option presented to Blue Chip. [Compare Blue Chip’s Statement of
Facts at ECF No. 104 ¶ 15 ( “Chetu explained that the only available choices were for Blue Chip
to walk away from the work done with nothing to show . . . or let Chetu create a new version of
the POS, which would supposedly easily integrate the [APIs] that Chetu had already developed.”),
with Chetu’s Opposing Statement of Facts at ECF No. 108 ¶ 15 ( “Mr. Tripathi recommended to
rebuild the POS from scratch because the outdated version of JavaFX that the existing application
was built was causing problems with integration.”).
Opinions vary as to whether a rebuild of Blue Chip’s POS was required. On the one hand,
Blue Chip’s expert, Paul Reimer, opined that Blue Chip could have integrated its POS with the
requested Netspend and Paychex APIs. [ECF No. 104-2 at ¶¶ 8–10]. Mr. Sharma supports this
contention. [ECF No. 104-3 at 191:15–19]. On the other hand, Jared Strand, the develop who built
the prior POS for Blue Chip, advised against rebuilding the POS because he believed the
application he built was sufficient. [ECF No. 107-4 at 194:4–13].

But the heart of the factual dispute lies in the discussion that took place on a late May or
early June 2021 Zoom call between representative of both companies, where, according to Blue
Chip, Mr. Tripathi stated that the existing POS system was antiquated and could not support
integration of the two APIs. [ECF No. 103 at 10]. Two Blue Chip employees that attended the
Zoom meeting submitted declarations in support of Blue Chip’s position. [ECF Nos. 104-4, 104-
5]. Mr. Sharma, who was not present at the Zoom meeting, stated in his deposition that he had a
discussion with Mr. Tripathi prior to the meeting regarding the “propos[al,]” indicating that a
choice indeed was given. [ECF No. 107-3 at 100:6–22].
Clearly, there is disputed issues of material fact as to whether (1) what was indeed stated
in the Zoom meeting in question; (2) whether that statement was a false (2) whether Chetu intended

to induce Blue Chip to begin Phase II by this alleged misrepresentation. Similarly, on the theory
that Chetu’s continued promises that it would complete the project by future deadlines, there is a
dispute as to whether the promised deadlines were false statements intended to induce Blue Chip
to continue paying a monthly fee for Chetu’s services. As such, Blue Chip’s Motion on its two
theories of fraud in the inducement should be denied.
b. Chetu’s Motion for Summary Judgment on Blue Chip’s Fraud in the
Inducement Claim (Count III)

Chetu’s Motion alleges that both of Blue Chip’s pre-contract formation allegations are not
actionable. [ECF No. 101 at 6–7]. As explained above, the district judge dismissed all allegations
relating to pre-contract formation. [See ECF No. 25 at 12–13]. On the post-contract formation
representations, Chetu expands on its argument made in opposition to Blue Chip’s Motion that the
estimated deadlines were good faith opinions providing estimated future project completion
deadlines. [ECF No. 101 at 7–8]. And, in any case, Chetu argues the future promises are
“unactionable because the requisite fraudulent scienter was not present.” [Id. at 9]. On Blue Chip’s

allegation that Chetu failed to provide elite technical council, Chetu cites to Exhibit 6 of its Motion,
which evidences that “Chetu has produced documentation regarding the elite technical council and
its assignment to this case.” [Id. at 9, citing to ECF No. 101-6]. Blue Chip apparently rejected
Chetu’s proposed implementation of a “test drive” development approach for the project. [ECF
Nos. 101 at 9; 101-2 at 245:15–17].
First, on whether the deadlines are actionable as fraud claims, the undersigned found that
a dispute exists as to whether the deadlines were indeed false statement intended to induce further
payment. Second, Chetu’s production of documents as to the elite technical council and Blue
Chip’s apparent rejection of Chetu’s proposed “test drive” development approach, does nothing to
advance its argument.7 Chetu fails to explain how its discovery responses and Blue Chip’s decision

regarding the alleged “test drive” moves the needle in its favor on summary judgment.
Accordingly, Count III shall proceed to trial for determination by a jury.
D. FDUTPA
A party asserting a FDUTPA claim must prove: “(1) a deceptive act or unfair practice; (2)
causation; and (3) actual damages.” Jones Superyacht Miami, Inc. v. M/Y Waku, 451 F. Supp. 3d
1335, 1343 (S.D. Fla. 2020) (quoting Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA
2006)). The statute outlaws “[u]nfair methods of competition, unconscionable acts or practices,
and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1),

7 Chetu’s failure to pincite its 11-page discovery responses only exacerbates its argument.
Fla. Stat. “A deceptive practice is one that is likely to mislead consumers, and an unfair practice
is one that ‘offends established public policy’ or is ‘immoral, unethical, oppressive, unscrupulous
or substantially injurious to consumers.’” Bookworld Trade, Inc. v. Daughters of St. Paul, Inc.,
532 F. Supp. 2d 1350, 1364 (M.D. Fla. 2007) (quoting Rollins, 951 So. 2d at 869).

a. Blue Chip’s Motion for Summary Judgment on its FDUTPA Claim (Count
IV)
Blue Chip advances two arguments in support of its FDUTPA claim: (1) the non-
disparagement provision of the contract (Section 6) is a per se violation of the FTC Act, and,
consequently, is also a violation of FDUTPA; and (2) Chetu’s fraudulent statements made to Blue
Chip regarding the need to jettison its existing POS system for a new and more expensive POS in
order to string Blue Chip along into paying monthly development fees is the definition of
unscrupulous conduct defined by FDUTPA. [ECF No. 103 at 17–18].
Here, the parties failed to address a key issue related to Blue Chip’s FDUTPA claim: the
district judge’s partial dismissal of the claim. On February 17, 2023, Judge Smith analyzed Blue
Chip’s FDUTPA claim in the context of Chetu’s Motion to Dismiss the Complaint. [ECF Nos. 10,
25]. Crucially, the Court found that “[e]nforcing the SLAPP clause of the Software Contract also
cannot form the basis of a FDUTPA claim because there is nothing fraudulent or unfair in
enforcing a term of a contract entered into by two business entities.” [ECF No. 25 at 14–15
(emphasis added)]. However, the Court held that the remaining allegations—false representation
about the skills and experience of employees, false progress reports provided to customers, and

dragging out of the development process to generate additional fees—were sufficient to state a
FDUTPA claim. [Id. at 15]. The court therefore dismissed Count IV in part, without granting leave
to replead.8
The law of the case doctrine “posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.”

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16 (1988) (quoting Arizona v.
California, 460 U.S. 605, 618 (1983)); see also Fontainebleau Hotel Corp. v. Crossman, 286 F.2d
926, 928 (5th Cir. 1961) (“The rule of the law of the case is a rule of practice, based upon sound
policy that when an issue is once litigated and decided, that should be the end of the matter.”
(citation omitted)).
While the Court has “the power to revisit prior decisions of its own or of a coordinate court
in any circumstance” the rule of thumb is that “courts should be loathe to do so in the absence of
extraordinary circumstances such as where the initial decision was “clearly erroneous and would
work a manifest injustice.” Arencibia v. AGA Serv. Co., 533 F. Supp. 3d 1180, 1192–93 (S.D. Fla.
2021), aff'd, 21-11567, 2022 WL 1499693 (11th Cir. May 12, 2022) (quoting Christianson, 486

U.S. at 818); see also Royal Ins. Co. v. Latin Am. Aviation Servs., Inc., 210 F.3d 1348, 1350 (11th
Cir. 2000) (recognizing narrow exceptions to the law of the case doctrine: new evidence brought
to the court’s attention, change in the law, and the earlier decision was a “clear error” that “would
work a manifest injustice.”); Cox Enterprises, Inc. v. News-J. Corp., 794 F.3d 1259, 1272 (11th
Cir. 2015) (the Eleventh Circuit has “emphasized that the ‘clear error’ exception must be rarely
invoked. . . . [I]n a close case, a court must defer to the legal conclusion of a coordinate court in
the same case; only when the legal error is beyond the scope of reasonable debate should the court

8 Note that Count I was dismissed without prejudice: “Chetu’s Motion is granted as to Count I with
leave to replead” and was “dismissed without prejudice.” [ECF No. 25 at 10, 15]. No such language
is used in the Court’s dismissal of Count II and partial dismissal of Counts III and IV.
disregard the prior ruling. Needless to say, this is a high bar.” (quotation marks omitted) (footnotes
omitted)).
Here, Blue Chip makes the same allegations against the same party on a previously
dismissed theory under FDUTPA. While the Court addressed this theory in its Order denying

Chetu’s Motion for Judgment on the Pleadings, including stating that “Plaintiff has alleged a
violation of 15 U.S.C. § 45(b),” that did not revive the previously dismissed claim. [ECF No. 129].
The Court did not address any “new evidence” or a “change in the law[,]” and neither party
addressed whether the district judge’s decision, although brief in analysis, was a “clear error” that
“would work a manifest injustice.” Royal Ins. Co., 210 F.3d at 1350. The inclusion of these
allegations in First Amended Complaint and Second Amended Complaint likewise did not revive
these theories, and the parties were not granted leave to replead them. Therefore, the undersigned
cannot recommend entry of summary judgment on Blue Chip’s first theory regarding the non-
disparagement provision (SLAPP clause) of the contract, where the district judge specifically held
that this theory “cannot form the basis of a FDUTPA claim.. . .” [ECF No. 25 at 14–15].

Next, Blue Chip alleges that Chetu made fraudulent statements intended to string Blue Chip
along to continue paying a development fee. [ECF No. 103 at 18]. It argues that a constant “bait
and switch” tactic was utilized, whereby Chetu promised firm deadlines in exchange for additional
payment. [Id.]. This, Blue Chip believes, “is the height of deceptive practices” and “is exactly the
type of conduct that FDUTPA is meant to protect a consumer, such as Blue Chip, from having to
endure.” [Id.]. As a direct and proximate cause, Blue Chip believes it is entitled to $156,000 in
damages. [Id.].
Chetu failed to respond to the allegation, deciding instead to address the other theories
identified in the Second Amended Complaint, on which Blue Chip did not request entry of
summary judgment on in its Motion. Chetu identified the allegation, but failed to discuss it. [See
ECF No. 107 at 8 (listing, but not analyzing, the allegation that “Chetu’s entire business model is
to induce customers into a monthly development fee and then to drag out the development process
indefinitely in order to generate fees.”)].

However, despite these issues, this theory does not withstand summary judgment scrutiny.
There is no evidence (disputed or undisputed) supporting the contention that Chetu committed an
unfair and deceptive practice by proposing alternate deadlines for partial or full completion of the
project. The only case cited in support in Blue Chip’s analysis, PNR, Inc. v. Beacon Prop. Mgmt.,
Inc., 842 So. 2d 773, 777 (Fla. 2003), discusses whether FDUTPA may be applied in a private
cause of action arising from unfair or deceptive acts. This case supports Blue Chip’s ability to
bring the action but does not support the crux of its argument: that Chetu’s practice was “one that
offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or
substantially injurious to consumers.” [Id. (citations omitted)]. As such, Blue Chip’s Motion on its
FDUTPA claims under the theories addressed above is denied.

b. Chetu’s Motion for Summary Judgment on Blue Chip’s FDUTPA Claim
(Count IV)
Chetu’s Motion is a cut-and-paste of its opposition to Blue Chip’s Motion. [ECF No. 101
at 11–14]. It seeks summary judgment on the second and fifth allegations in Blue Chip’s Second
Amended Complaint: “(2) “Chetu falsely represents that it dedicates an entire team of qualified
professionals, including ‘elite technical teams,’ to each project;” and “(5) Chetu aggressively
enforces the nondisparagement clause in the Software Contract to prevent dissatisfied customers
from warning potential customers of Chetu’s practices.” [Id. at 11].
First, theory number 5 refers to Chetu’s alleged enforcement of the SLAPP Clause. [ECF
No. 86 ¶ 82]. As discussed at length in the preceding section, the district judge dismissed this
theory of Blue Chip’s breach of contract claim. [Id. at 14–15].
Second, on theory number 2, the district judge found in its Order on Chetu’s Motion to

Dismiss that “Chetu’s representations that it dedicates an entire team of professionals to each
project cannot form the basis of a FDUTPA claim because the Work Order . . . expressly states
that Plaintiff is contracting for a single consultant for its work.” [ECF No. 25 at 14]. Nearly a year
later, the district judge entered an Order on Chetu’s Motion for Judgment on the Pleadings and
clarified that, on this specific theory, its previous dismissal was “based on pre-contract
representations” and that Plaintiff’s allegations are actually based on post-contract representations.
[ECF No. 129 at 12].9 As such, the Court must address Chetu’s post-contract representation that it
dedicates an entire team of qualified individuals to each project. [ECF No. 86 at 23].
Chetu argues that its post-contract formation representations are mere promises not
performed, which, in the context of fraud, are not actionable, citing Alexander/Davis Props., Inc.

v. Graham, 397 So. 2d 699, 706 (Fla. 4th DCA 1981) (“As a general rule, fraud cannot be
predicated upon a mere promise not performed.”) and Dorestin v. Hollywood Imports, Inc., 45 So.
3d 819, 825 (Fla. 4th DCA 2010) (“FDUTPA claim cannot be stated based upon oral
representations which are in contradiction of written terms of a contract, because reliance on such
representations is unreasonable as a matter of law.”). [ECF No. 101 at 11–12]. Alternatively, Chetu
proposes that these representations constitute an offer of additional services, or a proposal for
contract modification, for which no additional compensation was received and the requirements

9 Notably, the Court did not specify whether its dismissal of theory number 5 (regarding the SLAPP
clause) was based on pre- or post-contract representations.
of amending the contract were not followed. [Id.]. In support, it cites to another state court case,
Diaz v. Kosch, 250 So. 3d 156, 165 (Fla. 3d DCA 2018) (holding contract was not validly amended
where “Buyers were memorializing their claim that the inspection/cancellation period had been
extended but without a signed writing or on the basis of additional consideration by the Buyers”).

Blue Chip argues that Chetu’s Motion on this theory should be denied because the Second
Amended Complaint does not allege, or even refer to, an “elite technical team” under this theory
of its FDUTPA claim. [ECF No. 109 at 13]. Regarding Chetu’s post-contract formation
representations, it argues that Chetu’s reliance on Dorenstin is misplaced because the oral
representations in that case were made prior to the parties’ written contract with contradictory
language, and, therefore, reliance on these oral assertions could not be considered reasonable. [Id.
at 13]. Blue Chip also cites to Kukorinis v. Walmart, 2020 WL 13388297, at *5 (S.D. Fla. June 1,
2020), which it says distinguished Dorestin because “the alleged deceptive and unfair conduct . .
. has nothing to do with an agreement between the parties”). Blue Chip then summarizes other
theories of FDUTPA unrelated to the one discussed by Chetu and concludes that “the record

presents a very different version of reality than Chetu presents concerning the competency,
makeup, and diligence of the team that Mr. Sharma and Mr. Tripathi repeatedly promises to Blue
Chip after the contract was signed.” [Id. at 14–15]. Its analysis continuous in a footnote. “Chetu
made post-contractual statements concerning the skill and dedicated team of professionals. . . .
This was not a change in the parties’ contract as Blue Chip always controlled the specifications of
work to be performed.” [Id. n. 9].
Turning to the record and undisputed facts, the Work Orders states that “[e]ach consultant
is allocated as a Full Time equivalent for this Work Order and billing is fixed to 8 hours per day.
The consultant(s) work Monday through Friday and alternate Saturdays.” [ECF No. 86-1 at 4; 27-
1 at 3–4]. Under “Description of Requested Services” it states “[o]offshore consultants for
software support, design and development based on specifications provided by Customer.” [Id.].
The number of consultants (one) and consultant hourly date ($25 per hour) is also included. [Id.].
Mr. Howe’s declaration states that after the contract was entered into, Mr. Tripathi and its

developers assured Blue Chip that the company had the requisite skill and experience to easily
integrate the Blue Chip POS with the two APIs. [ECF Nos. 109 n. 9, citing 104-1 ¶ 4]. Then, a
May 27, 2021 internal e-mail at Chetu stated that “the project is in Yellow and we need to show
some progress and team is new in JFX and taking longer than expected. We need your help to
expedite the learning curve to get some deliveries to the customer ASAP.” [ECF No. 104-6 at 1].
It further states that the “[t]eam is new in JFX and taking longer than expected.” [Id.].10
Blue Chip is correct that the operative complaint fails to allege that Chetu made false
representations regarding an “elite technical team.” [ECF No. 86 at 22–23]. But this is not fatal to
its Motion on this count. Certainly, Chetu also analyzes, and cites to, the operative complaint’s
reference to Chetu’s “entire team of qualified persons to each project” in the context of the

FDUTPA claim. [See ECF No. 86 at ¶ 82].
Blue Chip states that the post-contract statements regarding the Chetu team were not
modifications to the contract because Blue Chip always controlled the specifications of the work
to be performed, per the terms of the Work Orders. [ECF No. 109 at 15]. Indeed, even if Mr.

10 “[A] court must consider each motion on its own merits, resolving all reasonable inferences
against the party whose motion is under consideration.” Torres, 244 F. Supp. 3d at 1327–28. But
Blue Chip’s opposition cites to exhibits used in support of its own Motion for Summary Judgment
and Statement of Facts, rather than those relevant to Chetu’s Motion. To exacerbate the parties’
errors in their briefings, Chetu failed to file a reply in support of its Motion, which could have
clarified whether certain facts relevant to its Motion are disputed or not. In any case, the Court
cites to the record, and Mr. Howe’s declaration is cited in Blue Chip’s response to Chetu’s material
facts, in the “additional facts” section. [ECF No. 110]. These additional facts are deemed admitted
due to Chetu’s failure to respond. See Fed. R. Civ. P. 56(e); S.D. Fla. L.R. 56.1(b)–(d).
Tripathi’s statements assuring the company’s skill and experience were taken as true, it would not
amend the terms of the contract, per Section J of the contract providing the process for
modifications. Instead, Blue Chip relies on the argument that “no case stands for the proposition
that post-contractual statements cannot be relied upon to support a FDUTPA claim[,]” citing to

Kukorinis, 2020 WL 13388297 at *5. [ECF No. 109 at 14]. Put simply, Blue Chip attempts to
distance itself from the terms of the contract and relies solely on alleged separate, unrelated, post-
contractual statements.
This argument fails. In Kukorinis, the plaintiff brought a class action suit against Walmart
for alleged unfair, deceptive, and unconscionable business practices relating to certain overcharged
goods that resulted in increased profits for Walmart. 2020 WL 13388297 at * 1. Certainly, the
court there distinguished the case from others, including those cited in Chetu’s Motion, because
the FDUTPA claim was not premised on an agreement between the parties. [Id. at *5]. Blue Chip’s
response brief fails to mention that no contract existed between the parties in that case. In other
words, the FDUTPA claim there did not center on post-contract formation representations; it

centered on mere representations. The instant action is different. The parties’ Work Orders
expressly provides for a description of requested services, which includes consultants for software
support, design, and development. [ECF No. 86-1 at 4]. The contract disclaimed any pre-contract
representations and provided for modifications through a written agreement signed by both parties.
[Id. at § J]. No modifications to the contract were made regarding consultants. It follows that
Chetu’s post-contract representations that touch on a subject of the contract—consultants hired to
work on the project—cannot form the basis of a FDUTPA claim. See TRG Night Hawk Ltd. v.
Registry Dev. Corp., 17 So. 3d 782, 784–785 (Fla. 2d DCA 2009) (barring a FDUTPA claim based
on reliance of alleged misrepresentations where parties entered into a contract disclaiming any
prior representations); Rosa v. Amoco Oil Co., 262 F. Supp. 2d 1364, 1368–1369 (S.D. Fla. 2003)
(dismissing a FDUTPA claim because it was unreasonable to rely on alleged misrepresentations
that differentiated from the written contract); JustTech, LLC v. Kaseya US LLC, 22-22454-CIV,
2023 WL 5529845, at *10 (S.D. Fla. Aug. 28, 2023) (“Plaintiff cannot rest its FDUTPA claim on

Defendant’s alleged misrepresentations of its software and services or promises of restitution
because there presentations were superseded by the [Agreement .. . .”]). Therefore, Chetu’s Motion
is granted on Blue Chip’s FDUTPA claim only as to the theory that Chetu falsely represented that
it dedicates an entire team of qualified professionals to each project.
E. Damages
As discussed, the undersigned recommends granting summary judgment on Blue Chip’s
breach of contract claim on its theory that Chetu breached the notice provision of the contract. [See
Analysis § (B)(a)].
Blue Chip seeks $156,000 in damages for the breach. [ECF No. 103 at 7]. It argues that
damages in this amount would place it in the same position as it would have been in but for the

breach. [Id.]. Under the “benefit of the bargain” standard, it argues the amount would be no
different. [Id.].
Unsurprisingly, Chetu believes that Blue Chip is entitled to nothing in damages for this
breach, stating that Blue Chip agreed to hold Chetu harmless from liability for any consequential
and punitive damages, pursuant to Section 9 of the contract. [ECF No. 107 at 3–4]. The measure
of damages, it believes, “is effectively what would be provided for if the contract were rescinded,
rather than what would adequately compensate Blue Chip for the harm it purportedly endured.”
[Id. at 4]. Chetu concludes that such damages are not available because “the status quo cannot be
restored and Blue Chip never provided the requisite notice of rescission to Blue Chip[,]” citing
Reyes v. Foreclosure Asset Sales & Transfer P’ship, 13-22829-CIV, 2014 WL 12623071 (S.D.
Fla. Mar. 5, 2014). In its reply, Blue Chip argues that no punitive damages or consequential
damages are sought on the breach of contract claim. [ECF No. 115 at 9–10].
The applicable sections of the contract state:

9) Limitation of Liability. Under no circumstances, including negligence, will
either party, be liable to the other or any other party for any incidental, special,
indirect, reliance, punitive or consequential damages, including lost data, lost
revenue, or lost profits, arising out of or relating to the software, developed or
maintained as part of this agreement, or the services, even if such party has been
advised of the possibility of such damages.

12) General Provisions:
d) Any breach of any provision of the Agreement, including non-payment
for services, by either party shall entitle the other party to recover damages
and injunctive relief. Customer and Chetu agree that because monetary
damages are likely to be inadequate, the party shall be entitled to temporary
injunctive relief (by providing to a court a likelihood of breach by
Customer) and to permanent injunctive relief (by providing to a court such
breach). If the first party is successful in recovering damages or obtaining
injunctive relief, the second party agrees to be responsible for paying all of
the first party’s expenses. In seeking such relief, including all costs of
bringing suit and all reasonable attorneys’ fees.

[ECF No. 86-1 at ¶¶ 9, 12].
“Under Florida law, the purpose of breach of contract damages is to restore an injured party
to the same position that he or she would have been in had the contract not been breached.” Sun
Life Assurance Co. of Canada v. Imperial Holdings Inc., 13-80385-CIV, 2016 WL 10565034, at
*4 (S.D. Fla. Sept. 22, 2016) (citing Capitol Envtl. Servs., Inc. v. Earth Tech, Inc., 25 So. 3d 593,
596 (Fla. 1st DCA 2009)). However, restoring the injured party to the “same position” does not
allow for putting the party in a position better than that which he would have occupied had the
breach not occurred. Lindon v. Dalton Hotel Corp., 49 So. 3d 299, 305–06 (Fla. 5th DCA 2010).
Rather, the only damages that are recoverable are those that flow naturally from the breach and
can “reasonably be said to have been contemplated by the parties at the time that the contract was
made.” Id. (citations omitted).
“Recoverable damages are inclusive of ‘all damages that are causally related to the breach
so long as the damages were reasonably foreseeable at the time the parties entered into the

contract.’” Christie v. Royal Caribbean Cruises, Ltd., 497 F. Supp. 3d 1227, 1233 (S.D. Fla. 2020)
(quoting Capitol Env’t Servs., 25 So. 3d at 596). “Damages are foreseeable if they are the
proximate and usual consequence of the breaching party’s acts.” Id. (internal quotation marks
omitted).
Chetu argues that the contract did not require the delivery of a completed product. [ECF
No. 107 at 3]. Certainly, Section 8 of the contract states that “Customer expressly acknowledges
and agrees that Chetu is providing consultants for software development and maintenance services
and not the end product(s) (“complete or any part of software developed as part of these services”)
itself.” [ECF No. 86-1 at ¶ 8]. However, as discussed at length in this report, the undersigned finds,
in agreement with the district judge’s order on Chetu’s motion to dismiss, that the contract was

modified when Chetu provided for a “firm delivery date [of] 11/18” and made representations that
it would deliver a fully functioning POS system. [ECF Nos. 104 at ¶ 21; 104-1 at 15]. And while
a fully functioning POS system was not contemplated in the original contract, “it is not necessary
that the parties ‘contemplated the exact injury which occurred as long as the actual consequences
could have been reasonably expected to flow from the breach.’” Christie, 497 F. Supp. at 1233–
34 (quoting Capitol Env’t Servs., 25 So. 3d at 596). It is undisputed that “Blue Chip originally
hired Chetu for the sole purpose of fully integrating Blue Chip’s existing [POS] system . . . into
the Netspend and Paychex [APIs], which became known later as Phase I of the software project.”
[ECF Nos. 104 at ¶ 6; 108 at ¶6]. Thus, the modification of the contract and the undisputed facts
support the conclusion that the injury suffered by Blue Chip—failure to receive a fully functioning
POS system—was contemplated from the earliest stages of the project. Blue Chip argues, and
Chetu does not dispute in its opposition, that Chetu provided no software code, let alone usable
code. [ECF No. 104 n. 2]. Blue Chip is therefore required “to start from scratch” if it were to seek

receipt of a fully functioning POS system. [Id.].
Chetu’s arguments are thin on both case law and analysis. First, Blue Chip is not seeking
consequential or punitive damages, as Chetu alludes to. It also did not plead rescission and, to the
undersigned’s knowledge, is not required to in order to be “placed in the same position that [it]
would have been in had the contract not been breached.” Sun Life Assurance Co. of Canada, 2016
WL 10565034 at *4. The only case Chetu relies on goes to the notice requirement parties must
follow before rescinding a contract, which is inapposite to the instant action. Reyes, 2014 WL
12623071 at *5.
In sum, Blue Chip did not receive a fully functioning POS software with Netspend and
Paychex APIs fully integrated, as contemplated by the parties. Blue Chip is entitled to damages of

$156,000, the total amount paid to Chetu.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Chetu’s Motion for Summary
Judgment [ECF No. 101] be GRANTED IN PART and DENIED IN PART as follows:
- Blue Chip’s request for Declaratory Judgment (Count I): DENIED;
- Blue Chip’s Breach of Contract Claim (Count II): DENIED;
- Blue Chip’s Fraud in the Inducement Claim (Count III): DENIED;
- Blue Chip’s FDUTPA Claim (Count IV): GRANTED on Blue Chip’s theory that Chetu
falsely represented that it dedicates an entire team of qualified professionals to each project.
DENIED on the theory that Chetu aggressively enforces the SLAPP Clause as one that
was previously dismissed by the district judge;
- Chetu’s Breach of Contract Counterclaim (Count I): DENIED. The Court notes that Chetu
abandoned its counterclaim by failing to reallege it in its Answer and Affirmative Defenses

to the Second Amended Complaint.
It is further RECOMMENDED that Blue Chip’s Motion for Summary Judgment [ECF
No. 103] be GRANTED IN PART and DENIED IN PART as follows:
- Blue Chip’s Breach of Contract Claim (Count II): GRANTED on its theory that the
contract’s termination clause was breached. Blue Chip is entitled to damages amounting to
$156,000 for Chetu’s breach.
- Blue Chip’s Fraud in the Inducement Claim (Count III): DENIED;
- Blue Chip’s FDUTPA Claim (Count IV): DENIED. The Court again notes that Blue
Chip’s theory that Chetu aggressively enforces the SLAPP Clause was previously
dismissed by the district judge.

Objections to this Report may be filed with the District Judge within fourteen days of
receipt of a copy of the Report. Failure to timely file objections will bar a de novo determination
by the District Judge of anything in this recommendation and shall constitute a waiver of a party’s
“right to challenge on appeal the district court’s order based on unobjected-to factual and legal
conclusions.” 11th Cir. R. 3-1; see also Harrigan v. Metro-Dade Police Dep’t Station #4, 977 F.3d
1185, 1191-92 (11th Cir. 2020); 28 U.S.C. § 636(b)(1)(C).
SIGNED this 8th day of August 2024.
LISETTE M. REID
UNITED STATES MAGISTRATE JUDGE

ce: US. District Judge David S. Leibowitz; and
All Counsel of Record

4]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10765255. Public record. Not legal advice.