Case Study

Paleo Foundation Inc v. Moxie Sozo USA, LLC

COMPLAINT AND EXHIBITS
Karen Pendergrass
February, 28, 2024
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PALEO CERTIFIED, INC v. MOXIE SOZO USA, LLC

Contact
1 email: karen@paleofoundation.com

IN THE UNITED STATES DISTRICT COURT

Judge: Gordon P Gallagher
Referred: Scott T Varholak
Case #: 1:23-cv-02119
Nature of Suit 190 Contract – Other Contract
Cause 28:1332 Diversity-Contract Dispute
Plaintiff PALEO CERTIFIED, INC., d/b/a PALEO FOUNDATION, a Florida corporation
Defendant MOXIE SOZO USA, LLC., a Colorado limited liability corporation

 

Introduction

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff Paleo Certified, Inc. d/b/a/ The Paleo Foundation (“The Paleo Foundation”) by and through its attorneys, Trestle Law, APC, for its Complaint against Defendant Moxie Sozo USA, LLC (“Moxie”) alleges, on knowledge as to its own actions, and otherwise upon information and belief, as follows:

 

PRELIMINARY STATEMENT

1. This is an action for damages and injunctive relief for fraud in the inducement, breach of contract, breach of the implied duty of good faith and fair dealing, and, in the alternative, unjust enrichment.

 

JURISDICTION

2. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1), in that this is a civil action between citizens of Colorado and a citizen of Florida, and the amount in controversy exceeds $75,000, exclusive of interest and costs.

 

VENUE

3. Venue is proper in this district under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claims occurred in this district.

 

PARTIES

4. Plaintiff is a corporation organized under the laws of the state of Florida, with its principal place of business in Orlando, Florida 32828.

5. Upon information and belief, Moxie Sozo USA, LLC is a limited liability company formed under the laws of the state of Colorado with its principal place of business at 1140 Pearl Street, 2nd Floor, Boulder, CO 80302.

Findings

FACTS

6. In or around June 2020, The Paleo Foundation and Moxie began discussions regarding a potential business relationship between the parties, whereby Moxie would create a website for The Paleo Foundation with certain features and functionalities (the “Project”).

7. The Paleo Foundation sent Moxie a document outlining its requirements for the proposed website, including improved product filter pages, improved brand pages, an announcements page, an easy to locate page for independent research, service pages, and affiliate pages, on or about June 8, 2020. A true and correct copy of this document is attached hereto as Exhibit A.

8. The parties subsequently met to discuss the Project in depth on June 2, 2020, June 10, 2020, and June 22, 2020 to ensure that Moxie was fully aware of the scope of the Project before taking it on. These meetings involved various Moxie employees including Vice President of Business Development and Marketing, Rob Vermillion (“Vermillion”); Interactive Art Director, Eric Nowles (“Nowles”); Senior Interactive Account Director, Kate Keyser (“Keyser”); and Director of Brand Development, Catherine Walsh (“Walsh”). Over the course of these meetings, Moxie’s senior and director level employees repeatedly assured The Paleo Foundation that it clearly understood The Paleo Foundation’s specific needs and expectations, that Moxie was capable and available to perform the work required, and that Moxie, as a full-service agency, could manage the Project without difficulty. Upon information and belief, at the time Moxie made these assurances, Moxie knew that it did not have the staff or expertise necessary to build a website to the specifications required by The Paleo Foundation.

9. After much discussion with Moxie, The Paleo Foundation entered into a Master Services Agreement (“MSA”) on June 23, 2020, in reliance on Moxie’s promises that it would be able to create the website discussed in the timeframe required. The MSA was drafted entirely by Moxie, with no input or modification made by The Paleo Foundation. Attached to the MSA and incorporated therewith was a Project Agreement which outlined the tentative timeline, deliverables, and fees associated with the MSA. A copy of the MSA and the incorporated Project Agreement are attached hereto as Exhibit B.

10. The MSA promised that, in connection with the website, Moxie would provide the following to The Paleo Foundation with an estimated Project completion date of February 28, 2021: a discovery session, foundational research, a brand identity refresh, marketing collateral/templates, website planning, website design, website development, website technology, website features, and post-launch services (the “Services”) (See Exhibit B).

11. In exchange for the Services, The Paleo Foundation was to pay Moxie a total of $135,275. Moxie required that $33,817 be paid as an initial deposit, with the remaining balance of $101,458 to be paid in seven (7) monthly installments of $14,494. This payment plan was consistent with Moxie’s promise to deliver a finished website by early 2021, so The Paleo Foundation had no reason to object to the payment schedule set by Moxie at the time it signed the MSA.

12. On July 1, 2020, The Paleo Foundation paid the initial deposit of $33,817.

13. After engaging Moxie to build its website, The Paleo Foundation continued to establish and communicate clear expectations for the Project with Moxie. Per Moxie’s process, The Paleo Foundation provided responses to Moxie’s discovery questions to help provide Moxie with a detailed understanding of The Paleo Foundation’s goals.

14. On July 20, 2020, just two weeks after executing the MSA, The Paleo Foundation reached out to Eric Nowles by email to let Moxie know that the MSA provided for services The Paleo Foundation did not need and asked to narrow the scope of Services pursuant §15.1 of the MSA. A copy of this correspondence and its attachments are attached hereto as Exhibit C.

15. Later that day, The Paleo Foundation met with Moxie employees Keyser, Nowles, and Walsh, as well as Moxie Account directors, Alyssa Montoya (“Montoya”) and Charles Bloom (“Bloom”); Chief Creative Officer, Derek Springston (“Springston”); Director of Strategy, Paxton Wiers (“Wiers”), and Director of User Experience, Fred Bryant (“Bryant”) to provide further information about the Project.

16. The Paleo Foundation emailed Moxie again on July 29, 2020, providing further information and feedback on points discussed during the parties’ July 20, 2020 meeting.

17. In accordance with the MSA, The Paleo Foundation paid the first monthly installment of $14,949 on August 6, 2020.

18. Between August 10, 2020 and August 12, 2020, The Paleo Foundation met with Moxie two more times to discuss the Project. Attending these meetings on behalf of Moxie were Montoya, Nowles, Springston, Bloom, Bryant, and Keyser. After these meetings, The Paleo Foundation remained concerned that Moxie appeared confused regarding the scope and details of the Project and requested a longer discovery session with Moxie on August 13, 2020. A copy of this correspondence is attached hereto as Exhibit D.

19. The parties agreed to meet on August 19, 2020. In advance of this meeting, The Paleo Foundation provided Moxie with an agenda outlining The Paleo Foundation’s goals. A copy of this agenda is attached hereto as Exhibit E.

20. The August 19, 2020 extended discovery session was attended by Keyser, Montoya, Bloom, Nowles, Bryant, Springston, and Wiers, and addressed The Paleo Foundation’s goals going forward and concerns with the work completed by Moxie to date.

21. In or around August of 2020, Walsh, Moxie’s Director of Brand Development, left the Project, resulting in the first instance of many Moxie employees assigned to work on the Project departing the company.

22. The Paleo Foundation engaged in further meetings with Moxie employees between September 9, 2020, and November 2, 2020, all of which led The Paleo Foundation to believe that Moxie had a clear understanding of The Paleo Foundation’s needs and was capable of providing work product that aligned with those needs. Accordingly, on September 25, 2020 and October 22, 2020, The Paleo Foundation paid the second and third installments of $14,949, respectively, as required by the MSA.

23. Following a meeting with Moxie on November 2, 2020, The Paleo Foundation’s concerns were again raised regarding Moxie’s understanding of the Project parameters, despite the many meetings that had taken place to date. Moxie’s lack of understanding was evidenced by the fact that the mood boards and prototypes Moxie presented to The Paleo Foundation did not align with the information sent by The Paleo Foundation provided to Moxie on June 8, 2020 (Exhibit A), July 20, 2020 (Exhibit C), and August 19, 2020 (Exhibit E). The Paleo Foundation outlined these concerns in an email sent on November 5, 2020, a copy of which is attached hereto as Exhibit F.

24. The Paleo Foundation was not alone in recognizing that the Project was not on track. Moxie’s own employees recognized that it was not delivering on its promises to The Paleo Foundation. For example, on November 7, 2020, Springston sent an email to The Paleo Foundation apologizing for “not holding up [Moxie’s] end of the bargain” and stating that “[t]he progress [Moxie] made doesn’t equal the duration that has passed.” Springston promised that he would be driving the project going forward and would attend every meeting and presentation from then on, clearly seeking to reassure The Paleo Foundation that, despite mounting evidence to the contrary, Moxie would figure out how to perform its end of the bargain. A copy of this correspondence is attached hereto as Exhibit G.

25. Springston emailed The Paleo Foundation with further assurances on November 16, 2020, admitting that “[s]ometimes [Moxie’s] websites get hampered by process and [The Paleo Foundation] [is not] the first client to bring the timing/progress thing up.” A copy of this correspondence is attached hereto as Exhibit H.

26. Despite The Paleo Foundation’s concerns with the work Moxie had provided thus far, The Paleo Foundation remained hopeful Moxie would deliver, and on November 23, 2020 and December 30, 2020, The Paleo Foundation paid the fourth and fifth installments of $14,949, respectively, as required by the MSA. The Paleo Foundation made these payments in reliance on Moxie’s continued assurances.

27. On January 5, 2021, Moxie introduced The Paleo Foundation to Evan Faber (“Faber”) as Moxie’s Chief Executive Office and Strategist.

28. On or around January 29, 2021, Keyser, Moxie’s Senior Interactive Account Director, left Moxie.

29. On February 5, 2021, The Paleo Foundation requested that the installment payments be paused until further progress was made on the website, given how far behind Moxie was. Moxie agreed.

30. Despite the many hours spent by The Paleo Foundation communicating with Moxie and reviewing and responding to Moxie’s questions, Moxie’s ongoing failure to advance the Project, despite assurances to the contrary, meant that Moxie had not completed the work necessary to launch the website by February 28, 2021. As a result, Moxie updated the project timeline to reflect an expected launch date of June 30, 2021. A copy of this amended timeline is attached hereto as Exhibit I.

31. On March 3, 2021, Moxie once again updated the project timeline, this time moving the launch date out to October 5, 2021. A copy of this second amended timeline is attached hereto as Exhibit J. Each and every time, The Paleo Foundation was assured Moxie was capable of delivering but was having staffing issues. The COVID-19 pandemic was often cited as the source of these hiring woes at Moxie.

32. In or around May 2021, Nowles, Moxie’s Interactive Art Director and the Web Developer for The Paleo Foundation’s project, also left Moxie.

33. On May 17, 2021, in reliance on Moxie’s claim that it had enough of the website design to begin development, The Paleo Foundation resumed the installment payments and paid the sixth installment of $14,949.

34. Despite Moxie’s repeated reassurances and extensions of time, Moxie continued to fall behind and provide materials that were inconsistent with the well-established project requirements. Moxie’s failures went beyond merely failing to timely deliver the Services, and negatively impacted The Paleo Foundation’s business. On August 31, 2021, The Paleo Foundation messaged Moxie regarding concerns about pages on The Paleo Foundation website that were being misdirected, contained spelling errors, or were not authorized to be created.

35. On September 16, 2021, The Paleo Foundation reached out to Moxie again, expressing frustration with the lack of work completed by Moxie in light of the amount of time that had passed, Moxie’s failure to incorporate The Paleo Foundation’s goals into the work, and Moxie’s passing off work it was obligated to perform to The Paleo Foundation.

36. On or around November 2, 2021, The Paleo Foundation proposed that the parties enter into revised agreement in an effort to ensure that the final website would properly address The Paleo Foundation’s needs and requirements and including a revised timeline with hard deadlines. Moxie never agreed, and this was not done despite the request by The Paleo Foundation.

37. Throughout the parties’ relationship Moxie removed employees, lost employees, and brought in new employees to work on the Project. This lack of continuity in Moxie employees working on the Project resulted in duplicative meetings between The Paleo Foundation and Moxie employees newly brought on to the Project, wherein The Paleo Foundation had to bring each new employee up to speed on the Project’s requirements. Upon information and belief, Moxie failed to appropriately document the many conversations that occurred between the parties, or otherwise take appropriate steps to ensure continuity of work throughout these many changes.

38. Due to the consistent issues with the Services Moxie was providing, and in an attempt to solve such issues, on January 13, 2022, Moxie brought in Mac Whitney (“Whitney”), a Project Manager for Moxie, to be The Paleo Foundation’s new point of contact and Matt Gordon (“Gordon”), Moxie’s Senior Tech Lead, to be the new technical lead on the Project. In doing so, Moxie alleged that its staffing issues contributed to the “unexpected process” the project had undergone, and claimed that, as a result of the most recent round of meetings, Moxie had a “new intimate knowledge of the project.” A copy of this correspondence is attached hereto as Exhibit K.

39. After over a year of good faith attempts to help Moxie understand what The Paleo Foundation required from a website, and despite Moxie’s assurance that it now had an intimate knowledge of the Project, on February 1, 2022, The Paleo Foundation reached out again to express concerns regarding the status of the Project.

40. Around February 2022, Moxie informed The Paleo Foundation that it would be bringing the Project in-house because it no longer wanted to work with third parties which it could not adequately explain the current designs to.

41. On February 10, 2022, The Paleo Foundation met with Moxie yet again, to help the Moxie employees newly added to the Project understand Paleo Foundation’s background and business process. Attending this meeting on behalf of Moxie were Whitney, Bradley, Faber, and Bryant.

42. The Paleo Foundation continued to meet with Moxie on an ongoing basis from February through November of 2022 and remained under the impression that its website would be ready for launch according to the latest schedule. It was not until one week before the scheduled launch date that The Paleo Foundation was made aware that Moxie would not be performing front-end quality assurance for the website, and that The Paleo Foundation would have to perform that work on its own. In light of this last-minute shifting of responsibilities, The Paleo Foundation became suspicious and uncertain of Moxie’s ability to perform back-end quality assurance for the website. The Paleo Foundation therefore retained an outside WordPress Security and Development expert – at its own additional cost – to perform quality assurance for the website’s back end and code.

43. Despite Moxie’s assurances that the website’s code was up to WordPress standards and that it would be ready to launch the following week, The Paleo Foundation discovered neither of these representations were true. Moxie provided The Paleo Foundation with access to the website’s code to perform back-end quality assurance, and The Paleo Foundation’s expert provided a long list of potential security breaches based on the condition of Moxie’s code. The Paleo Foundation’s expert estimated it would take months to remedy the security breaches. A copy of the WordPress Security and Development expert’s overview of the issues with Moxie’s code is attached hereto as Exhibit L.

44. In correspondence with Moxie from November 8, 2022, The Paleo Foundation addressed the coding issues found by their expert which caused The Paleo Foundation to call into serious question Moxie’s promise that the website would launch the following week. The Paleo Foundation also expressed its continued frustration with Moxie’s failure to address privacy and data issues on its own, which resulted in The Paleo Foundation having to retain outside help to ensure that the code could be secure. A copy of this correspondence is attached hereto as Exhibit M. The Paleo Foundation then met with Faber to explain, and Moxie regrouped. Moxie claimed the issues outlined by The Paleo Foundation’s expert were already known and that they had been fixed; but no proof was ever provided to demonstrate that was the case.

45. As of November 30, 2022, though Moxie claimed the website was ‘nearly ready,’ the multitude of issues, including the numerous source code, privacy and data issues Moxie failed to identify or remedy led The Paleo Foundation to involve legal counsel. The parties engaged in a conference call facilitated by The Paleo Foundation’s attorneys, at the conclusion of which Moxie agreed to provide, by December 12, 2022: (1) an explanation of how much work remained and Moxie’s proposal for completion of the website; (2) an overview of the critical errors on the site as well as those Moxie was fixing or would fix; and (3) the date on which the website could be expected to be completed.

46. Unsurprisingly, Moxie failed provide any of the promised disclosures on December 12, 2022, and instead indicated that it was still not clear on what a finished website should include. A copy of this correspondence from Moxie is attached hereto as Exhibit N.

47. On February 15, 2023, The Paleo Foundation’s counsel sent Moxie a letter outlining Moxie’s breach of its contractual obligations and harm suffered by The Paleo Foundation as a result of Moxie’s breach, and demanding repayment of the amounts Moxie had been paid for a website that it had failed to deliver.

48. On March 10, 2023, Moxie once again indicated that it’s work was nearly done, and that Moxie had completed over 95% of the website. Paradoxically, Moxie also maintained that it still did not know what a finished website would look like, after years of discussions, meetings, and written exchanges.

49. Shortly after sending this response, Moxie removed The Paleo Foundation’s access to Basecamp and ClickUp, the platforms through which the parties had been collaborating and communicating about the project. This made it impossible for The Paleo Foundation to access its own work product, review the alleged progress made by Moxie, or address Moxie’s apparent continued confusion regarding what it had been paid to produce.

50. Prior to removing The Paleo Foundation’s access to BaseCamp and ClickUp, The Paleo Foundation noticed unusual actions being taken by Moxie, including changing notations related to the quality assurance process and altering dates and attendees for meetings that had already occurred.

51. Moxie subsequently refused The Paleo Foundation’s request that its access be reinstated, which only increased The Paleo Foundation’s concerns that material information would be lost or destroyed.

52. On April 20, 2023, counsel for the parties met to discuss a path forward for Moxie’s completion of the website.

53. On May 5, 2023, Moxie indicated that it would not complete the work, and instead offered to provide The Paleo Foundation with the work completed to date, in exchange for a mutual release of claims. In response to Moxie’s offer, The Paleo Foundation asked to review the work Moxie had completed. Moxie did not respond.

54. Though Moxie indicated that the website is almost complete, it refuses to provide The Paleo Foundation with access to any of the materials, correspondence, or source code. Much of the underlying content was provided by The Paleo Foundation and is therefore The Paleo Foundation’s work product and does not belong to Moxie.

55. The Paleo Foundation has made all payments required by the MSA, except for the last installment which Moxie never provided an invoice for, and extensively communicated its requirements for the Project to Moxie; however, Moxie has not provided the Services required, revoked The Paleo Foundation’s access to the work it previously provided, and ceased communication with The Paleo Foundation entirely, necessitating this action.

COUNT ONE Fraud in the Inducement

 

56. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 55 above as if set forth fully herein.

57. Between January 5, 2020 and June 23, 2020, and beyond, Moxie represented to The Paleo Foundation that it had the capacity to, and intended to, create a website consistent with The Paleo Foundation’s needs and expectations by approximately February 28, 2021. Moxie continued to reassure The Paleo Foundation regarding its ability and willingness to perform the Services until as late as April 2023. Upon information and belief, at the time Moxie made these representations, it knew that it would not be able to provide the promised Services.

58. Moxie made these false representations and promises knowing them to be false, and with the intent that The Paleo Foundation would enter into the MSA and make payments to Moxie in reliance on Moxie’s false promises.

59. The Paleo Foundation in fact executed the MSA in reliance on Moxie’s representations, and subsequently paid Moxie $120,781. When it executed the MSA, The Paleo Foundation did not know that Moxie’s representations were false.

60. The Paleo Foundation was justified in relying on Moxie’s representations, as The Paleo Foundation had no way of knowing of Moxie’s inability to perform.

61. In engaging Moxie, The Paleo Foundation forwent the opportunity to engage with other service providers capable of performing the services needed, and as a result, The Paleo Foundation went years without a website with the functionality The Paleo Foundation required, causing injury to The Paleo Foundation’s existing and potential business relationships.

62. Moxie’s false representations caused The Paleo Foundation harm, including the loss of funds paid to Moxie, loss of the many hours The Paleo Foundation committed to explaining and reexplaining the project scope, and lost business opportunities.

COUNT TWO Breach of Contract

 

63. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 62 above as if set forth fully herein.

64. The parties entered into an agreement comprised of the MSA (with a Project Agreement included as part of the MSA), along with subsequent writings and oral discussions.

65. The Paleo Foundation made the periodic payments due under the agreement and has otherwise performed its part of the contract (except as noted above).

66. Moxie willfully failed to provide the Services required by the MSA as outlined in the Discovery Session and Foundational Research Sections of the Project Agreement (See Exhibit B, pages 2 and 3 of the Project Agreement), in reckless disregard for The Paleo Foundation’s rights. While the parties engaged in the discovery session contemplated by the MSA, the Moxie employees who engaged in these efforts with The Paleo Foundation team subsequently left the project or left Moxie entirely. The Paleo Foundation was therefore required to repeatedly bring new Moxie employees and contractors up to speed. Moxie’s failure to ensure continuity of staffing created confusion on Moxie’s end regarding project requirements, as well as unnecessary work on the part of The Paleo Foundation.

67. Though Moxie provided The Paleo Foundation with a brand identity and marketing refresh, these were never requested by The Paleo Foundation, and appear to have been included in the MSA solely because Moxie used a template for this agreement. The Paleo Foundation expressly instructed Moxie that it did not require these services early on, and explained that, because The Paleo Foundation’s logos were registered trademarks and certification marks, they could not be altered.

68. Moxie failed to take appropriate measures to ensure that the feedback provided by The Paleo Foundation was being maintained by Moxie and passed on to new employees assigned to the project. This failure, combined with Moxie’s pattern of employee turnover, led Moxie to waste time working on unnecessary tasks and hindered the forward movement of the Project. The Paleo Foundation did not hire Moxie for marketing work. It hired Moxie to build a website. Moxie failed to do either.

69. Moxie willfully failed to provide the Services required by the MSA as outlined in the Website Planning Section of the Project Agreement (See Exhibit B, page 3 of the Project Agreement). While Paleo Foundation provided all necessary assets and login information, Moxie never completed the information architecture tasks. While Adobe files were prepared and The Paleo Foundation created a draft brief which Moxie refined to some extent, no user flows, template definitions, technical specs, or feature specs were provided, and none of this was finalized by Moxie into a final creative brief with all of the elements required by the MSA.

70. Moxie willfully failed to provide the Services required by the MSA as outlined in the Website Design Section of the Project Agreement (See Exhibit B, pages 3 and 4 of the Project Agreement). Moxie was required to present to The Paleo Foundation two user experience prototypes. Paleo Foundation understood that those prototypes would be based on the information and instructions provided by The Paleo Foundation and discussed with Moxie during the various planning sessions between the parties. Instead, Moxie presented prototypes two months before the planned launch date that failed to incorporate any of the information discussed and were not in any way appropriate for The Paleo Foundation’s needs. It was clear that Moxie had systematically failed to internally document The Paleo Foundation’s requests, despite The Paleo Foundation providing clear instructions regarding the functionality required of the site. So, The Paleo Foundation again met with Moxie’s team to get everyone on the same page regarding the website’s appearance and functionality. The Paleo Foundation believed at this point that the issues and misunderstandings had been resolved, and that the project would move to website development.Unfortunately, Moxie’s developer Nowels then left, and the project stalled again. Moxie decided to outsource work without the necessary sitemaps and design notes and failed to convey the understanding The Paleo Foundation and Moxie had painstakingly worked out to its subcontractors. This led to further unnecessary delay and wheel-spinning.

71. Moxie willfully failed to provide the Services required by the MSA as outlined in the Website Development, Website Technology, User Interface and Experience, Servers and Security Sections of the Project Agreement. The work outlined on pages 4 through 10 of the Project Agreement has not been completed (See Exhibit B). No website has been delivered, and Moxie has refused to provide a proposed revised timeline for performance. Paragraph 14.4 of the MSA provides, “[i]n the event Agency anticipates at any time that it will not complete one or more Deliverable(s) within the prescribed timetable, Agency shall promptly inform Client by written notice, submit proposed revisions to the timetable… and continue to work under the revised timetable, in accordance with Agency’s written notice…” (See Exhibit B, page 12 of the MSA). There is no question that Moxie has failed to produce the Deliverables as agreed-upon, but no notice or revised timetable has been provided, even being expressly requested by The Paleo Foundation on multiple occasions.

72. Moxie willfully failed to provide the Services required by the MSA as outlined in the Testing and Quality Assurance Section of the Project Agreement (See Exhibit B, page 6 of the Project Agreement). Per paragraph 4.2 of the MSA, Moxie – not The Paleo Foundation – was obligated to “exercise commercially reasonably efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing the applicable Deliverables” to The Paleo Foundation (See Exhibit B, page 5 of the MSA). Instead, Moxie passed quality assurance work off to Paleo Foundation, necessitating the retention of a third-party developer to perform work Moxie was contractually obligated to do, at The Paleo Foundation’s expense.

73. Not only did Moxie fail to produce a functioning website, but it also caused damage to The Paleo Foundation’s existing website by creating serious security issues, putting The Paleo Foundation and its clients’ data at risk. Moxie also failed to address security issues with the website it was developing, even after they were pointed out by the Paleo Foundation.

74. On or about May 5, 2023, Moxie indicated that it would not complete the work required of it under the MSA, nor would Moxie provide The Paleo Foundation with access to the work done by the parties in connection therewith.

75. Moxie’s failure to produce a functional website consistent with the MSA and various discussions between the Parties, and its subsequent refusal to either complete the work or provide The Paleo Foundation with access to any of the work product constitutes a material breach of the MSA.

76. Moxie’s conduct described herein constitutes willful and wanton breach of contract.

77. Moxie’s failure to perform was so substantial as to defeat the object of the parties in entering into the MSA, causing The Paleo Foundation significant financial and reputational injury.

 

COUNT THREE Breach of the Covenant of Good Faith and Fair Dealing

 

78. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 77 above as if set forth fully herein.

79. Implied in the MSA is an agreement that the parties will act in good faith and deal fairly with each other in performing or enforcing the express terms of the contract.

80. Moxie repeatedly ignored The Paleo Foundation’s instructions and spent time completing tasks that were neither requested nor required.

81. Several of Moxie’s employees who were working on the project for The Paleo Foundation were subsequently removed and replaced with new employees and contractors that were not adequately onboarded to ensure continuity of work, leading to repeated delays of the project and requiring The Paleo Foundation to expend additional effort to bring new employees and contractors up to speed.

82. When The Paleo Foundation addressed its concerns with Moxie, Moxie replaced employees working on the project, assigned additional supervisors, and held additional meetings with The Paleo Foundation, each time claiming that it would address and resolve The Paleo Foundation’s concerns; however, these proposed solutions only led to a delayed timeline and a failure to provide a completed website that would align with The Paleo Foundation’s specifications.

83. Moxie’s repeated delays, misrepresentations regarding the Project status, and conflicting claims – alleging that the website was nearly complete, while at the same time implying that The Paleo Foundation had failed to adequately explain to the revolving door or Moxie employees what that website should look like – reflects a lack of good faith on Moxie’s part.

84. Moxie’s failure to internally document the information conveyed by The Paleo Foundation during the many meetings between the parties and its shifting of work it had agreed to do to The Paleo Foundation unfairly burdened The Paleo Foundation and caused it to incur expenses it should not have borne in an attempt to obtain the benefit of the parties’ bargain.

COUNT FOUR Unjust Enrichment

 

85. In the alternative, to the extent no agreement was formed or the MSA is deemed voidable having been fraudulently induced, The Paleo Foundation alleges that, in accepting payment of $120,781 for services not rendered and deliverables never produced, and by retaining The Paleo Foundation’s work product without permission, Moxie unfairly received a benefit at The Paleo Foundation’s expense.


REQUEST FOR RELIEF

WHEREFORE, Plaintiff requests judgment against the Defendants as follows:

  1. Recission of the agreement;
  2. For general and consequential damages in an amount to be shown according to
    proof at trial;
  3. Punitive damages in an amount to be shown according to proof at trial;
  4. For interest as provided by law, including Colo. Rev. Stat. § 5-12-102;
  5. For an order from the Court that an asset freeze or constructive trust be imposed
    over all monies and profits in Defendants’ possession which rightfully belong to Plaintiff;

86. Under these circumstances, it would be unjust to permit Moxie to retain these improperly obtained funds and materials.

  1. For reasonable attorneys’ fees pursuant to §15.9 of the MSA and all costs of suit; and
  2. For such other and further relief as the Court may deem just and equitable.

Dated: August 18, 2023 Denver, Colorado

Respectfully Submitted,

s/ Amanda L. Bruss
Amanda L. Bruss (CO Bar 44151) Trestle Law, APC

Telephone: (619) 343-3655 ext. 24 E-mail: amanda@trestlelaw.com

Kristen G. Roberts

Trestle Law, APC
7904 Broadway
Lemon Grove, CA 91945 Telephone: 619-343-3655 E-mail: kristen@trestlelaw.com

Attorneys for Plaintiff Paleo Certified, Inc., d/b/a Paleo Foundation

7904 Broadway

Lemon Grove, CA 9194

This work is licensed under a Creative Commons Attribution 4.0 International License.

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