United States District Court, D. Nebraska
GATEWAY CUSTOMER SOLUTIONS, LLC, a Nebraska Limited Liability Company, Plaintiff,
GC SERVICES LIMITED PARTNERSHIP, a Delaware Limited Partnership, Defendant.
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on plaintiff's, Gateway Customer Solutions, LLC (Gateway), Motion for Summary Judgment (Filing No. 26), and defendant's, GC Services Limited Partnership (GC Services), Counter-Motion for Summary Judgment (Filing No. 38). Gateway filed a brief (Filing No. 28) and indices of evidence (Filing Nos. 27 and 29) in support of the motion. GC Services filed a response (Filing No. 34), brief (Filing No. 37),  and indices of evidence (Filing Nos. 35 and 36) in support of its counter-motion and in opposition to Gateway's summary judgment motion. Gateway filed a brief (Filing No. 40) in reply. Thereafter, GC Services filed a brief (Filing No. 44) and index of evidence (Filing No. 45) in reply.
GC Services also filed a Motion to Proceed Without a Resident Attorney (Filing No. 47). Gateway filed a brief (Filing No. 48) and index of evidence (Filing No. 49) in opposition to the motion.
This case arises from the parties' dispute whether GC Services is obligated to remit commission payments to Gateway. Gateway asks the court to declare GC Services renewed an agreement with Mercedes-Benz Financial Services (MBFS), which would entitle Gateway, who brokered GC Services' initial relationship with MBFS, to continued commission payments. GC Services denies Gateway is entitled to judgment or any other relief requested. GC Services argues it did not renew its agreement with MBFS but instead entered into a new agreement with MBFS, thus ceasing GC Services' obligation to remit commission payments.
The following facts are those stated in the parties' briefs which have been admitted or not properly resisted and those facts as supported by the record. See NECivR 56.1(b)(1); Fed.R.Civ.P. 56(c)(1)(A) and (e)(2).
1. Gateway is a Nebraska limited liability company located in Omaha, Nebraska. See Filing No. 35-1 - Business Referral Agreement. Gateway is engaged in the business of brokering business relationships. Id.
2. GC Services is a Delaware limited liability partnership having its principal place of business in Houston, Texas. Id. GC Services provides collection services. Id. ; see also Filing Nos. 36-1 and 36-3 - MBFS Agreements.
3. On April 29, 2011, Gateway and GC Services entered into a Business Referral Agreement. See Filing No. 35-1 - Business Referral Agreement.
4. The Business Referral Agreement provided Gateway would solicit and refer opportunities for collection services, customer care or similar customer contact management services, and, if applicable, back-office services to GC Services. Id. ¶ 1.
5. The Business Referral Agreement established GC Services would remit commission payments to Gateway. Id. ¶ 4. Specifically,
[GC Services] will make commission payments to [Gateway] calculated based on the [fees] actually received by [GC Services] for the period of time as specified in the applicable Addendum related to the services delivered by [GC Services] to the Potential Client, which are referred by [Gateway] and explicitly specified on an executed Addendum (or any amended Addendum).
6. The Term/Termination Clause in the Business Referral Agreement provided:
This [Business Referral] Agreement shall be effective for one (1) year from its effective date and may be renewed for additional annual periods upon the written agreement of each party. This [Business Referral] Agreement may be terminated by [GC Services] upon thirty (30) days written notice for convenience. Notwithstanding the foregoing, [Gateway] shall receive commissions for the time period specified in any executed Addendum. Either party may terminate this [Business Referral] Agreement, any Addendum individually, or all Addendums for cause for breach by the other party of any material provision of this Agreement, provided that written notice of such alleged breach has been given to the breaching party, and such breach has not been cured within fifteen (15) days, if such breach is capable of being cured, after receipt of the notice. If this [Business Referral] Agreement or any or all Addendum(s) is terminated by [GC Services] for breach by [Gateway], such termination shall include any commission payment obligations for commissions otherwise due on and after the date of the breach.
Id. ¶ 12.
7. On May 20, 2011, Gateway and GC Services entered into Addendum A to the Business Referral Agreement (the 2011 Addendum). See Filing No. 35-4 - 2011 Addendum.
8. The 2011 Addendum established MBFS might contract for GC Services' customer call center services, Gateway would receive from GC Services a brokerage fee of five percent (5%) of the fees GC Services received from MBFS, if certain conditions were met, and, under the "Terms of Fee Payment, " Gateway would receive the brokerage fee for "[t]he duration of an awarded contract and any renewals pursuant thereto." Id.
9. On August 1, 2011, GC Services and MBFS entered into an agreement (the 2011 MBFS Agreement). See Filing No. 36-1 - 2011 MBFS Agreement.
10. The 2011 MBFS Agreement provided:
[The 2011 Agreement] is for a period of three (3) years ("Initial Term") and shall continue upon the same terms and conditions as set forth herein for additional successive one-year periods ("Renewal Terms") until termination of same is requested by written notice from either party to the other at least ninety (90) days ...