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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Resqsoft, Inc. v. Protech Solutions, Inc. and State of Alaska, Department of Revenue (6/18/2021) sp-7539

Resqsoft, Inc. v. Protech Solutions, Inc. and State of Alaska, Department of Revenue (6/18/2021) sp-7539

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                    

          corrections@akcourts.gov.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



RESQSOFT,  INC.,                                                  )  

                                                                  )    Supreme Court No. S-17548  

                                                                                                       

                              Appellant,                          )  

                                                                  )    Superior  Court  No.  3AN-18-10376  CI  

          v.                                                      )  

                                                                                           

                                                                  )    O P I N I O N  

                                                          

PROTECH SOLUTIONS, INC. and                                       )  

                                                                                                        

                                     

STATE OF ALASKA, DEPARTMENT                                       )    No. 7539 - June 18, 2021  

       

OF REVENUE,                                                       )  

                                                                  )  

                              Appellees.                          )  

                                                                  )  



                                                                                                        

                                 

                    Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                   

                    Judicial District, Anchorage, Yvonne Lamoureux, Judge.  



                                                                                                

                    Appearances:   Eva R. Gardner and Jeffrey W. Robinson,  

                                                                                                                  

                    Ashburn   &   Mason,   P.C.,   Anchorage,   for   Appellant.  

                                                                                                   

                    Allison   G.   Strickland,   Jermain,   Dunnagan   &   Owens,  

                                                                                                             

                    Anchorage, for Appellee Protech Solutions, Inc.  Rachel L.  

                                                                                                             

                    Witty, Assistant Attorney General, Anchorage, and Kevin G.  

                                                                                                             

                    Clarkson, Attorney General, Juneau, for Appellee State of  

                    Alaska.  



                                                                                                          

                    Before:         Bolger,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                                                            

                    Carney, Justices. [Borghesan, Justice, not participating.]  



                                        

                    WINFREE, Justice.  



I.        INTRODUCTION  



                                                                                                                      

                    Thesuperior court dismissedasubcontractor'sclaims against thecontractor  



                                                                                                                                  

because a venue provision in the subcontract required that litigation be conducted in  


----------------------- Page 2-----------------------

another state.                                         The superior court also dismissed the subcontractor's unjust enrichment                                                                                                                                                                          



claim against the project owner for failure to state a claim upon which relief can be                                                                                                                                                                                                                                                      



granted.     The   subcontractor   appeals   the   dismissals;   seeing   no   error,   we   affirm the   



 superior court's decisions.                                     



II.                        FACTS AND PROCEEDINGS                                     



                                                     The   State   of Alaska, Department of Revenue solicited proposals                                                                                                                                                                                                            for a  



technology project.                                                             Protech Solutions, Inc. submitted a competitive bid, identifying                                                                                                                                                         



ResQSoft, Inc. as a subcontractor and technology partner.  The State awarded Protech   



the nearly $3 million project; the State and Protech executed a contract for work to begin                                                                                                                                                                                                                                      



July 15, 2017 and end by June 30, 2020.                                                                                                                            



                                                     Although ResQSoft began work immediately, Protech and ResQSoft did                                                                                                                                                                                                                 



not execute their subcontract until early October 2017; the subcontract specified that                                                                                                                                                                                                                                                



ResQSoft was to perform technical work (other than testing and project management)                                                                                                                                                                                                             



andprovidefixed-priceproducts. The                                                                                                                  relationship between Protech and ResQSoft broke  



down, and in February 2018 Protech terminated the subcontract and replaced ResQSoft                                                                                                                                                                                                                            



with a different subcontractor.                                                                                            



                                                     In November 2018 ResQSoft filed a lawsuit against Protech and the State.                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                                                                                  1  and  

ResQSoft alleged that Protech had violated the Alaska Uniform Trade Secrets Act                                                                                                                                                                                                                                                        

the  Alaska  Unfair  Trade  Practices  and  Consumer  Protection  Act2                                                                                                                                                                                                                               (UTPA)  by  

                                                                                                                                                                                                                                                                                                                                       



misappropriating ResQSoft's proprietary information and trade secrets as an unfair trade  

                                                                                                                                                                                                                                                                                                                                  



practice. Without alleging a breach of contract claim, ResQSoft sought injunctive relief  

                                                                                                                                                                                                                                                                                                                                 



and  damages,  including  compensation  for  work  performed  and  products  delivered.  

                                                                                                                                                                                                                                                                                                                                                         



ResQSoft alleged that the State was unfairly enriched because ResQSoft's work and  

                                                                                                                                                                                                                                                                                                                                      



                           1                         AS  45.50.910-.945.   



                          2                          AS  45.50.471-.561.  



                                                                                                                                                                      -2-                                                                                                                                                                          7539  


----------------------- Page 3-----------------------

trade secrets had been wrongfully used in the project without payment, and it sought an                                                                                                              



equitable award of damages against the State.                                                                



                               Protech moved to dismiss ResQSoft's statutory claims for improper venue                                                                                      



based on the subcontract's forum selection clause mandating suit in Delaware federal                                                                                                      

              3    The State moved to dismiss the unjust enrichment claim for failure to state a  

court.                                                                                                                                                                                                 

claim upon which relief may be granted.4  

                                                                                                  



                               The superior court granted Protech's dismissal motion "because the forum  

                                                                                                                                                                                            



selection clause encompasses the subject matter of this dispute." The court also granted  

                                                                                                                                                                                         



the State's dismissal motion, determining that "ResQSoft fail[ed] to state a claim for  

                                                                                                                                                                                                   



unjust enrichment because as a matter of law, the State did not receive a windfall and  

                                                                                                                                                                                                 



contractual obligations and remedies between ResQSoft and Protech remain available  

                                                                                                                                                                                     



such that the [c]ourt should not impute a quasi-contract between ResQSoft and the  

                                                                                                                                                                                                  



State."  

                  



                               After final judgments were entered and distributed, ResQSoft appealed,  

                                                                                                                                                                                   



arguing that the superior court erred as a matter of law by granting Protech's dismissal  

                                                                                                                                                                                    



motion for improper venue and by granting the State's dismissal motion for failure to  

                                                                                                                                                                                                     



state a claim for unjust enrichment.  

                                                       



III.            STANDARD OF REVIEW  

                                                            



                               We  review  de  novo  a  superior  court's  grant  of  an  Alaska  Civil  

                                                                                                                                                                                            



Rule  12(b)(3)  motion  to  dismiss  for  improper  venue,  exercising  our  independent  

                                                                                                                                                                            



                3              See  Alaska R. Civ. P. 12(b)(3) (providing that defendant may file motion                                                                                 



to dismiss lawsuit for improper venue).                                    



                4              See Alaska R. Civ. P. 12(b)(6) (providing that defendant may file motion  

                                                                                                                                                                                         

to dismiss claims for failure to state claim upon which relief can be granted).  

                                                                                                                                                               



                                                                                                  -3-                                                                                         7539
  


----------------------- Page 4-----------------------

                     5  

judgment.   Contract interpretation, including interpretation of forum selection clauses,                                                                     



                                                                                                                                            6  

 is a question of law reviewed de novo with our independent judgment.                                                                                                   

                                                                                                                                                " 'Whether [a]  



                                                                                                                                                                      

 forum-selection  clause is  enforceable is  a question  of law'  to  which  we apply  our  

                                                7  We review de novo a superior court's grant of a Rule 12(b)(6)  

                                                                                                                                                             

                           

 independent judgment." 

motion to dismiss for "failure to state a claim upon which relief can be granted."8  

                                                                                                                                               



IV.	          DISCUSSION  



                                                                                                                                                              

              A.	          The Superior Court Did Not Err By Dismissing ResQSoft's Claims  

                                             

                           Against Protech.  



                                                                    

                           1.	          Preliminary issue  



                                                                                                                                                              

                           "To withstand a [dismissal] motion based on improper venue, the plaintiff  



                                                                                                                                                   

must present a prima facie case that . . . venue is proper.  The trial court may consider  



                                                                                                                                                                       

 evidence outside the pleadings but should take . . . uncontradicted allegations as true and  

                                                                                                                                                                  9    An  

                                                                                                                                                                       

 construe reasonable inferences and factual conflicts in favor  of  the plaintiff." 



 evidentiary hearing is required only when a material fact necessary for resolving the  

                                                                                                                                                                       



              5            See Brooks Range Petroleum Corp. v. Shearer                                                   , 425 P.3d 65, 70 (Alaska       



 2018) (holding proper venue "is a legal question we review de novo, applying our                                                                                     

 independent   judgment   to   adopt   the   rule   of   law   that   is   most   persuasive   in   light   of  

precedent, reason, and policy").               



              6            Alaska Fur Gallery, Inc. v. Tok Hwang , 394 P.3d 511, 514 (Alaska 2017)  

                                                                                                                                                                  

 ("We treat the interpretation of contract language as a question of law and interpret the  

                                                                                                                                                                        

 language de novo." (quoting Cook v. Cook, 249 P.3d 1070, 1077 (Alaska 2011))).  

                                                                                                                                                     



              7            Nunez v. Am. Seafoods, 52 P.3d 720, 721 (Alaska 2002) (alteration in  

                                                                                                                                                                         

 original) (quoting Bodzai v. Arctic Fjord, Inc., 990 P.2d 616, 618 (Alaska 1999)).  

                                                                                                                                                      



              8            Guerrero v. Alaska Hous. Fin. Corp.,  6  P.3d 250, 253 (Alaska 2000)  

                                                                                                                                                                 

 (quoting Alaska R. Civ. P. 12(b)(6)).  

                                                       



              9            Brooks Range, 425 P.3d at 71.  

                                                                                          



                                                                                    -4-	                                                                           7539
  


----------------------- Page 5-----------------------

venue motion is disputed, but "[w]hether to hold a hearing is committed to the trial                                                       

court's discretion."             10  



                       ResQSoftarguesthat, when thesuperiorcourtdismissed ResQSoft's claims  

                                                                                                                                        



againstProtechbecauseofimproper venue, thecourt impermissibly considered Protech's  

                                                                                                                                   



"ten pages of new factual narrative, or 'rebuttal' to ResQSoft's [c]omplaint, unsupported  

                                                                                                                              



by any affidavits." ResQSoft contends that the material "clearly influenced" the court's  

                                                                                                                                       



decision and that the court failed to expressly specify which of ResQSoft's allegations  

                                                                                                                                



in the complaint it "considered to be 'uncontradicted,' and [the court] did not 'expressly  

                                                                                                                                 



exclude' the additional material as required by . . . precedents."  Although we note that  

                                                                                                                                            



the superior court cited the complaint for the factual matters set out in its decision, we  

                                                                                                                             

do not consider this argument because we review the superior court's decision de novo.11  

                                                                                                                                                    



We consider only ResQSoft's complaint and the unquestioned contract and subcontract  

                                                                                                                               



documents.  

                     



                       2.         Legal framework for forum selection clauses  

                                                                                                      



                       We construe forum selection clauses broadly, releasing a party from a  

                                                                                                                                                

clause only when necessary to preserve justice or a compelling state interest.12  The party  

                                                                                                                                          



seeking to escape the clause bears the burden of showing that enforcing the clause would  

                                                                                                                                        

be unjust.13  

                      



           10         Id.  



           11          See  id.  at  70.  



           12         Nunez,  52  P.3d  at  723  ("A  contractual  choice-of-forum  clause  should  be  



held  unenforceable  if  enforcement  would  contravene  a  strong  public  policy  of  the  forum  

in  which  suit  is brought, whether declared  by statute or by  judicial  decision."  (quoting  

M/S  Bremen  v.  Zapata  Off-Shore  Co.,  407  U.S.   1,   15  (1972))).  



           13          Volkswagenwerk, A.G. v. Klippan, GmbH, 611 P.2d 498, 503-04 (Alaska  

                                                                                                                                     

                                                                                                                           (continued...)  



                                                                       -5-                                                               7539
  


----------------------- Page 6-----------------------

                    3.	       Why   we   affirm   the   superior   court's   decision   that   the   forum  

                              selection  clause  applies  to  ResQSoft's  claims  

                    This  case  requires  interpreting  the  subcontract's  forum  selection  clause,14  



           

which specifies:  



                                                                                                             

                    In the event litigation is necessary to enforce any provision of  

                                                                                                           

                    or  resolve  any  dispute  arising  out  of  this  Agreement,  the  

                                                                                                         

                    Parties agree that any proceeding relating to or arising from  

                                                                                                           

                    the Agreement will be heard and litigated exclusively in the  

                                                                                                         

                    federal district court of Delaware.  (Emphases added.)  



                                                                  

                    ResQSoft argues, as it did in the superior court, that the "forum selection  



                                                                                                                                     

clause is drafted narrowly and applies only to claims 'arising out of' the [s]ubcontract."  



                                                                                                                      

ResQSoft specifically contends that the clause's opening phrase establishes a narrowly  



                                                                                                            

defined scope, covering only pure contract disputes, for triggering the forum selection  



                                                                                                                         

clause.   ResQSoft  contends  that  the  broader  coverage  of the  second phrase  simply  



identifies where contract disputes must be litigated.  ResQSoft concludes that because  



                                                                                                                                     

it asserted no contract claims against Protech, the forum selection clause is not triggered.  



                                                                                                                      

Protech  responds,  as  it  did  in  the  superior  court,  that  ResQSoft's  claims,  however  



                                                                                                                              

described, arise out of the subcontract and cannot be resolved absent interpretation and  



                                                            

application of the subcontract's terms.  



          13        (...continued)  



                                                                                                                              

 1980) ("[I]t should be incumbent on the party seeking to escape his contract to show that  

                                                                                                                                

trial in the contractual forum will be so gravely difficult and inconvenient that he will for  

                                                                                                                                 

all practical purpose be deprived of his day in court." (quoting M/S Bremen, 407 U.S. at  

 18)).  



          14        See Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004)  

                                                                                                                           

("The objective of contract interpretation is to determine and enforce the reasonable  

                                                                                                                   

expectations of the parties. . . . 'The parties' expectations are assessed by examining the  

                                                                                                                               

language used  in  the  contract,  case law interpreting similar  language, and  relevant  

                                                                                                                       

extrinsic  evidence,  including  the  subsequent  conduct  of  the  parties.'  "  (quoting  

                                                                                                                      

Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996))).  

                                                                                                     



                                                               -6-	                                                        7539
  


----------------------- Page 7-----------------------

                                       Thesuperior court                                    consideredbut                              rejected ResQSoft'sarguments,referring                                                      



to the forum selection clause as "broad" and stating that the "dispute arises out of the                                                                                                                                                           



 subcontract, and evaluation of the merits of the Trade Secrets and UTPA claims would                                                                                                                                                    



require interpretation of the rights and duties set forth in the subcontract." We agree with                                                                                                                                                   



the superior court.                                      



                                       The forumselection clause's "arising out of" language is sufficient to bring                                                                                                                          



ResQSoft's claims within the clause's ambit regardless of the language difference in the                                                                                                                                                           

                                                                                                            15  Non-contractual claims, even those arising from  

 forum selection clause's two phrases.                                                                                                                                                                                                        



Alaska statutory law and equitable principles, may be subject to a contract's forum  

                                                                                                                                                                                                                                         

 selection clause if the claims arise out of or relate to the contractual terms.16                                                                                                                                             ResQSoft  

                                                                                                                                                                                                                               

nonetheless relies on Bodzai v. Arctic Fjord, Inc.17  to argue that the forum selection  

                                                                                                                                                                                                                                 



 clause  should  not  apply  to  its  non-contract  claims.                                                                                                        In  Bodzai  we  overturned  the  

                                                                                                                                                                                                                                                 



 application  of  an  employment  contract's  forum  selection  clause  to  the  employee's  

                                                                                                                                                                                                                         



personal injury claims, concluding that the personal injury claims based on negligence  

                                                                                                                                                                                                                            



                    15                 See, e.g.,  Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection,  



Inc., 32 P.3d 346, 357 (Alaska 2001)                                                                                 (discussing contractual indemnity clause and                                                                               

holding that "the phrase 'arising out of' . . . is very broad");                                                                                                           Crowson v. Sealaska Corp.                                                      ,  

 705 P.2d 905, 910 (Alaska 1985) (discussing equipment lease contract "covering 'any                                                                                                                                                           

 suit arising out of the lease' " and holding suit "based on fraud in the inducement,                                                                                                                                  

 'arises' out of the lease, even if the complaint alleges only" tort claims).                                                                                                              



                    16                 SeeVolkswagenwerk, 611P.2dat504 (enforcing forumselectionclausefor  

                                                                                                                                                                                                                                                               

non-contractual tort claims despite party "characteriz[ing] its action as . . . arising solely  

                                                                                                                                                                                                                                           

 from Alaska statutory law and equitable principles rather than from contract"); see also  

                                                                                                                                                                                                                                                

Adema Techs., Inc. v. Wacker Chem. Corp. , 657 F. App'x 661, 662 (9th Cir. 2016) ("[If]  

                                                                                                                                                                                                                                             

 a  broad  forum-selection  clause  is  included  in  a  contract  and  the  parties  raise  

                                                                                                                                                                                                                                            

non-contractual claims, the forum-selection clause can apply to the non-contractual  

                                                                                                                                                                                                             

 claims, at least [if] 'resolution of the claims relates to interpretation of the contract.' "  

                                                                                                                                                                                                                                                        

 (quoting Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th Cir. 1988))).  

                                                                                                                                                                                                                                    



                    17                 990 P.2d 616 (Alaska 1999).  

                                                                                                        



                                                                                                                          -7-                                                                                                                7539
  


----------------------- Page 8-----------------------

did not arise out of the employment contract but rather were grounded in the federal                                                                                                



                                                                                               18  

Jones Act and common law maritime law.                                                                                                                                               

                                                                                                     But the contract in Bodzai differed greatly  



                                                                                                                                                                                      

from the subcontract in this case; as the superior court pointed out,   Bodzai's injury  



                                                                                                                                                                                                     

claims did not "arise under the terms"ofhis contract, unlike ResQSoft's statutory claims.  



                                                                                                                                                                      

                              Neither  the  Trade  Secrets  Act  nor  the  UTPA  defines  "proprietary  



                                                                                           

information," but the subcontract does:  



                                                                                                                                           

                               [A]ll information and data relating to a party's technology,  

                                                                                                                                                   

                              products,  services  or  other  business,  including,  without  

                                                                                                                                               

                              limitation:  (i)  product  or  service  information,  including  

                                                                                                                                                   

                              designs                  and            specifications,                            development                           plans,  

                                                                                                                                              

                              methodologies,                           technical                  approaches,                      and           strategy;  

                                                                                                                                                

                              (ii)  marketing  information  .  .  .  ;  (iii)  computer  software,  

                                                                                                                                                          

                              including codes, flowcharts, algorithms, architectures, menu  

                                                                                                                                                           

                              layouts,   routines,   report   formats,   data   compilers   and  

                                                                                                                                                   

                              assemblers, templates, spreadsheets, functionality, concept,  

                                                                                                                                              

                              processes,  internal  structure,  design,  external  elements,  

                                                                         

                              technology,                     and           documentation;                            and           (iv)          financial  

                                                             

                              information,                       including                   sales,            pricing               and           revenue  

                                                            

                              information.  

                                                                                                                                    19    The subcontract does not,  

                                                                                                                                                                                           

                              The Trade Secrets Act defines "trade secret." 



but the statutory definition does not conflict with or alter the subcontract's provision  

                                                                                                                                                                              



about improper tradesecret disclosures and misappropriation ofproprietary information:  

                                                                                                                                                                                                     



"Both Parties agree that each will not disclose [proprietary information as previously  

                                                                                                                                                                            



               18             Id.  at 618-20.   



               19             AS 45.50.940(3) defines "trade secret" as:                                                        



                                                                                                                                                        

                               [I]nformation that (A) derives independent economic value,  

                              actual or potential, from not being generally known to, and                                                                     

                              not being readily ascertainable by proper means by, other                                                                   

                              persons who can obtain economic value from its disclosure                                                        

                              or use; and (B) is the subject of efforts that are reasonable  

                                                                                                                                             

                              under the circumstances to maintain its secrecy.                                           



                                                                                               -8-                                                                                       7539
  


----------------------- Page 9-----------------------

                                                                                                                  

defined in the subcontract] to third parties without the written consent of the transmitting  



                                                                                               

Party, provided, however, that the recipient Party shall not be liable for any disclosure  



                                                                                          

of such information to others under [certain conditions]."  



                                                                                                                              

                    The subcontract - to which the State is not a party - further specifies that  



                                                                                                                                     

the State retains ownership of any work product generated in the course of the project:  



                                                                                                 

                    Any delivered code or database structures that are converted  

                                                                                                     

                    [or] generated from the code provided by the State of Alaska  

                    using ResQSoft tools will be the unencumbered property of  

                                                                                                          

                    the State of Alaska.   Related delivered documentation will  

                                                                                                             

                    also be the unencumbered property of the State of Alaska. In  

                                                                                                    

                    effect, the items that are delivered under this contract become  

                                                                                              

                    the property of the State upon payment for those deliverables  

                                                                                               

                    to ResQSoft as defined in the project schedule.  (Emphases  

                                 

                    added.)  



                                                                                                           

                    ResQSoftclaims Protech shared ResQSoft'stradesecrets, misappropriated  



                                                                                                                           

its proprietary information, and engaged in unfair trade practices in violation oftheTrade  



                                                 

Secrets Act and the UTPA, but a court could not resolve those claims without looking  



                                                                                                                             

to  the  subcontract's  provisions  about  trade  secrets,  proprietary  information,  and  



                                                                                                                               

ownership of and payment for proprietary information.  Reviewing and interpreting the  



                                                                                                                                

subcontract was necessary to deciding:  (1) ownership interests in computer code or  



                                                                                                                           

database structures; (2) what constitutes proprietary information; and (3) whether either  



                                                                                                                 

entity   failed  to  perform  contractual  duties  regarding  trade  secrets,  proprietary  



                                                                                                                                

information,  and  contract  payments.                        The  subcontract  governs  the  legitimacy  of  



                                                                                                                              

ResQSoft's claims and whether they fall under the Trade Secrets Act or the UTPA, thus  



                                               

triggering the forum selection clause.  



                                                                                                                 

                    4.        Why we affirm the superior court's enforceability decision  



                                                                                                                       

                    Weaddress four argumentsagainst enforcingthecontract's forumselection  



                                                                 

clause, and we outline the reasons each is unavailing.  



                                                               -9-                                                         7539
  


----------------------- Page 10-----------------------

                                          a.           Public policy argument         



                            An otherwise applicable forum selection clause may be voided for public                                                                    



policy reasons:                  "A contractual choice-of-forum clause should be held unenforceable if                                                                           



enforcement would contravene a strong public policy of the forum in which suit is                                                                                               



                                                                                                                                  20  

brought, whether declared by statute or by judicial decision."                                                                                                           

                                                                                                                                        In the superior court  



                                                                                                                                                                       

ResQSoft argued it would be against public policy to enforce the subcontract's forum  



                                                                                                                                                                 

selection clause because the State and Protech's contract contained a forum selection  



                                                                                                                                                                      

clause designating an Alaska forum and because the State has a strong public policy  



                                                                                                                                                                            

favoring litigating Alaska law violations in Alaska courts.   But ResQSoft does not  



                                                                                                                   

expressly make that public policy argument on appeal.  



                                                                                                                                           

                                         b.            Unavailable remedy in chosen forum argument  



                                                                                                                                                                       

                            Aforumselectionclausealsomay beunenforceableifthedesignated forum  



                                                                              

is so impracticable that no remedy is available:  



                                                                                                                                                  

                            [I]t should be incumbent on the party seeking to escape [a]  

                                                                                                                                                    

                            contract to show that trial in the contractual forum will be so  

                                                                                                                                                   

                            gravely difficult and inconvenient that [the party] will for all  

                                                                                                                                                         

                            practical purpose be deprived of [the party's] day in court.  

                                                                                                                                                   

                            Absent that, there is no basis for concluding that it would be  

                                                                                                                                             

                            unfair,  unjust  or  unreasonable  to  hold  that  party  to  [the]  

                            bargain.[21]  



                            In the superior court ResQSoft argued that the chosen Delaware forumwas  

                                                                                                                                                                            



inconvenient and unconnected to the parties and the subject matter of the litigation. But  

                                                                                                                                                                            



              20            Volkswagenwerk, 611 P.2d at 504 (quoting                                                    M/S Bremen v. Zapata Off-                          



Shore Co.            , 407 U.S. 1, 15 (1972)).           



              21            Volkswagenwerk, 611 P.2dat 503-04(quoting M/SBremen, 407U.S. at 18)  

                                                                                                                                                                             

(emphasis omitted); see also id.  at 504-05 (holding enforcement of forum selection  

                                                                                                                                                                 

clause would not be unreasonable or against any public policy under Bremen criteria and  

                                                                                                                                                                            

finding plaintiff's contention that it was unlikely to obtain relief in designated forum  

                                                                                                                                                                       

unpersuasive).  



                                                                                     -10-                                                                                7539
  


----------------------- Page 11-----------------------

on appeal ResQSoft - a Virginia corporation - does not expressly make that argument                                                                                                                                                                                                 



for keeping its claims against Protech - an Arkansas corporation - in Alaska. Nor has                                                                                                                                                                                                                     



ResQSoft asserted on appeal, and nothing suggests, that ResQSoft would be unable to                                                                                                                                                                                                 



obtain relief in Delaware federal court for valid claims.                                                                                                                   



                                                                        c.                     Adhesion contract argument                                               



                                                In an adhesion contract a forum selection clause may be unenforceable if                                                                                                                                                                                        



                                                                                                                             22  

the party received no actual notice.                                                                                                                                                                                                                                                                       

                                                                                                                                       An adhesion contract exists if "the parties are 'of  



                                                                                                                                                                                                                                                                                                          

such disproportionate bargaining power that the [party in the weaker position] could not  



                                                                                                                                                                                                                                                          23  

                                                                                                                                                                                                                                                                                

have negotiated for variations in the terms of the standard [contract].' "                                                                                                                                                                                         An agreement  



                                                                                                                                                                                                                                                                                                                24  

                                                                                                                                                                                                                                                                                 

negotiated at arm's length between equally situated parties is not an adhesion contract. 



                                                                                                                                                                                                                                                                                        

                                                ResQSoft argues on appeal that the subcontract is an adhesion contract  



                                                                                                                                                                                                                                                                                              

because Protech delayed finalizing until ResQSoft had invested so much time and money  



                                                                                                                                                                                                                                                                                                     

in the project that it had no choice but to sign if it hoped to recoup its costs.   But  



                                                                                                                                                                                                                                                                                                             

ResQSoft did not make this argument to the superior court in written opposition to  



                        22                      See Nagrampa v. MailCoups, Inc.                                                                                        , 469 F.3d 1257, 1291-92 (9th Cir. 2006)                                                                                  



("A forum selection clause within an adhesion contract will be enforced 'as long as the                                                                                                                                                                                                                   

clause provided adequate notice to the [party] that he was agreeing to the jurisdiction                                                                                                                                                                                     

cited   in   the   contract.'   "   (quoting   Intershop   Commc'ns,   AG   v.   Superior   Court,   127  

Cal.Rptr.2d   847,   848   (2002)));  Carnival Cruise Lines,                                                                                                                                                  Inc.   v.   Superior Court                                                           ,   286  

Cal.Rptr. 323, 328 (1991) ("[T]he forumselection clause is unenforceable . . . if the court                                                                                                                                                                                                        

determines that [the] plaintiff did not have sufficient notice of [it]. . . . Absent such                                                                                                                                                                                                           

notice, the requisite mutual consent to that contractual term is lacking and no valid                                                                                                                                                                                                             

contract with respect to such clause thus exists.").                                                                                              



                        23                     Little Susitna Constr. Co. v. Soil Processing, Inc., 944 P.2d 20, 25 n.7  

                                                                                                                                                                                                                                                                                                         

(Alaska 1997) (quoting Graham v. Rockman, 504 P.2d 1351, 1357 (Alaska 1972)).  

                                                                                                                                                                                                                                                                                



                        24                     Id.  



                                                                                                                                                    -11-                                                                                                                                            7539
  


----------------------- Page 12-----------------------

Protech's dismissal motion; ResQSoft briefly alluded to the issue during oral argument                                                                              

but waived the argument by not sufficiently raising it.                                                            25  



                            ResQSoft points to no factual allegations in its complaint suggesting that  

                                                                                             



the subcontract terms were not the terms agreed to during negotiations, that it was at a  

                                                                                                                                                                                 



disadvantage during contract negotiations, or that it lacked notice of the forum selection  

                                                                                                                                                                      



clause designating Delaware as the forum (mentioned three times in the subcontract).  

                                                                                                                                                                                          



And ResQSoft undercuts its adhesion argument by explaining how critical it was for  

                                                                                                                                                                                  



Protech to have a technology partner like ResQSoft to win the State's bid for the project.  

                                                                                                                                                                                          



                            These were sophisticated parties.  Detailed, non-standardized subcontract  

                                                                                                                                                                



language set out critical terms of the parties' business relationship, including provisions  

                                                                                                                                                                  



protecting ResQSoft's trade secrets and proprietary information. And the complaint did  

                                                                                                                                                                                  



not contain any specific allegations that ResQSoft was forced to sign the subcontract or  

                                                                                                                                                                                    



that it had no bargaining power regarding the forum selection clause.  We thus are not  

                                                                                                                                     



persuaded by ResQSoft's newly minted argument that it was the victim of an adhesion  

                                                                                                                                                                     



contract.  

                     



                                           d.            Fraud argument  

                                                                         



                            There also is a "reasonableness" standard when determining whether a  

                                                                                                                                                                                      

forum selection clause is enforceable.26  Forum selection clauses are enforceable "absent  

                                                                                                                                                                         



a clear showing 'that enforcement would be unreasonable and unjust, or that the clause  

                                                                                                                                                                           



              25            Small v. Sayre                 , 384 P.3d 785, 788 (Alaska 2016) ("Generally, questions of                                                              



whatever nature, not raised and properly preserved for review in the trial court, will not                                                                                        

be noticed on appeal.").       



              26             Crowson  v.  Sealaska  Corp.,  705  P.2d  905,  911  (Alaska  1985)  ("In  

                                                                                                                                                                              

 Volkswagenwerk, A.G. v. Klippan, GmbH . . . this court rejected the common law rule  

                                                                                                                                                         

that forum selection clauses are per se invalid and adopted in its place the reasonableness  

                                                                                                                                 

approach set out in M/S Bremen v. Zapata Off-Shore Co.  . . . .").  



                                                                                        -12-                                                                                 7539
  


----------------------- Page 13-----------------------

                                                                                               27  

was invalid for such reasons as fraud or overreaching.' "                                           As to fraud, a forum selection           



                                                                                                                                          28  

clause generally is enforceable unless the clause itself is a product of the fraud.                                                            We  



                                                                                                                                             

have rejected the argument that "any time a dispute arising out of a transaction is based  



                                                                                                                                  

upon an allegation of fraud, the clause is unenforceable. Rather, the clause is enforceable  



                                                                                                                                                  

unless  'the  inclusion  of  that  clause  in  the  contract  was  the  product  of  fraud  or  



                    29  

                   

coercion.' " 



                       ResQSoft's complaint does not expressly allege fraud by Protech.   But  

                                                                                                                                               



ResQSoft argued in its written opposition to Protech's dismissal motion that "Protech's  

                                                                                                                                    



[f]raudulent [c]onduct" rendered the forum selection clause unenforceable.   At oral  

                                                                                                                                               



argument to the superior court, ResQSoft was not specific about how its fraud assertions  

                                                                                                                                     



supported invalidating the forum selection clause and conceded there was no need for  

                                                                                                                                                 



an evidentiary hearing to resolve disputed facts:  

                                                                                     



                                   Court: [S]o with regards to the forum-selection clause  

                                                                                                                     

                       argument that Protech is making, do you think that there are  

                                                                                                                          

                       questions of fact?  

                                              



                                   [ResQSoft Counsel]:                     I  think,  yes.          Number  one, I  

                                                                                                                             

                       think it's legally inapplicable, but there is an element of our  

                                                                                                                         

                       argument that addresses whether there was . . . fraudulent  

                                                                                                             

                       inducement and whether there were errors or problems[,] . . .  

                                                                                                                               

                       fraud  in  the  formation  of  that  contract,  which  would  

                                                                                                     

                       necessarily involve taking the testimony of the people who  

                                                                                                                        

                       formed that contract.  

                                             



                                   Court:          You're  making  a  claim  that  there  was  

                                                                                                                       

                       fraudulent inducement of the contract?  

                                                                           



            27          Id.  (quoting  M/S  Bremen,  407  U.S.  at   15).   



            28         Id.  at  910.  



            29         Id.  at  911  (quoting   Scherk  v.  Alberto-Culver  Co.,  417  U.S.  506,  519  n.14  



(1974)  (emphasis  in  original)).  



                                                                       -13-                                                                  7539
  


----------------------- Page 14-----------------------

                                                                                                          

                               [ResQSoft Counsel]:  I can address that section when  

                                 

                     I get to Protech.  



                                                      

                               Court:  Okay.  



                                      

                               . . . .  



                                                                                                         

                               Court:       Where  in  the  complaint  does  it  talk  about  

                                                                   

                     fraudulent inducement of the contract?  



                                                                                                      

                               [ResQSoft            Counsel]:              The      complaint doesn't  

                                                                                                       

                     specifically address the fraudulent inducement of the forum- 

                                                

                     selection clause.  



                                                                                                    

                               Court:  . . . So you're focused on fraud that occurred  

                                                                        

                     after the parties entered into the [sub]contract?  



                                                                             

                               [ResQSoft Counsel]: Right.  



                                      

                               . . . .  



                                                                                                               

                               Court:  What do you think are the factual matters in  

                                                                                                            

                     dispute  that  would  warrant  an  evidentiary  hearing  at  this  

                                                                                         

                    point  in  time  on  the  applicability  of  the  forum-selection  

                     clause?  



                                       

                                . . . .  



                                                                                                              

                               [ResQSoft Counsel]: I don't know -Your Honor, I'll  

                                                                                                   

                     concede I don't know if there is a huge need. . . . I do think  

                                                                                                            

                     that it's mostly a legal determination that the court . . . can  

                                                                                 

                    make based on the evidence before it.  



                                                                                                                       

                     The  superior  court  later  rejected  ResQSoft's  argument  that  Protech's  



                                                                       

alleged fraud invalidated the forum selection clause:  



                                                                                                 

                     ResQSoft  also  asserts  that  Protech's  alleged  fraudulent  

                                                                                                                   

                     conduct renders the forum selection clause unenforceable.  

                                                                                                    

                     ResQSoft does not assert in the Complaint that the inclusion  

                                                                                                              

                     of the forum selection clause was the product of fraud or  

                                                                                                   

                     otherwise raise a fraudulent inducement claim, but suggested  

                                                                                                             

                     at oral argument that Protech had a scheme all along to cut  

                                                                                                           

                     ResQSoft          out     of    the     contracted-for            benefits       of    the  

                                                                                                             

                     transaction. . . . [B]ecause ResQSoft does not assert that the  



                                                                -14-                                                          7539
  


----------------------- Page 15-----------------------

                          forum selection clause was the product of fraud, the clause is                                                  

                          enforceable.   



                         ResQSoft contends in its opening appeal brief that its complaint "contained                                              



adequate allegations to support an inference of fraud that warranted further exploration,"                                                   

                                                                      30  and it argues that the superior court erred by not  

specifically fraud in the inducement,                                                                                                                           



allowing ResQSoft the opportunity either to amend its complaint or to conduct limited  

                                                                                                                                                         



discovery to determine whether Protech intended to defraud ResQSoft or the State.  But  

                                                                                                                                                               



ResQSoft's brief describes fraudulent inducement to sign the subcontract, not fraudulent  

                                                                                                                                                   



inducement to include the forumselection clause in the subcontract. Only in ResQSoft's  

                                                                                                                                                

reply brief does it argue that Crowson v. Sealaska Corp.31  supports a conclusion that the  

                                                                                                                                                                



forum selection clause can be invalidated because the subcontract was fraudulently  

                                                                                                                                              



induced.  

                    



                          In Crowson we declined to enforce a forum selection clause because the  

                                                                                                                                                                

entire  contract  was  a  product  of  fraud  and  bribery.32                                                  In  that  case  Crowson  paid  

                                                                                                                                         

Sealaska's representative over $1.4 million in bribes to obtain the agreement.33                                                                                 In  

                                                                                                                                                                 



essence "only one interest was represented at the bargaining table," and we held that  

                                                                                                                                                               



"everything in the contracts that works to Crowson's advantage was presumably done  

                                                       



             30           To  prove  fraudulent  inducement  a  party  "must  show  that[:]   (1)  there  was  



a  misrepresentation;  (2)  the  misrepresentation  was  fraudulent;  (3)  the  misrepresentation  

induced   [the   party]   to   enter   into   the   contract;   and   (4)   [the   party's]   reliance   on   the  

misrepresentation  was  justified."   Indus. Commercial  Elec.,  Inc.  v.  McLees,   101  P.3d  

593,  599  (Alaska  2004);  see  also  17A  C.J.S.  Contracts  §  218  (2021)  ("[A]  claim of  fraud  

in the  inducement  .  . . arises when a party  is induced .  . . . to assent to something he or  

she  otherwise  would  not  have.").  



             31           705 P.2d at 905.  

                                                 



             32          Id.  



             33          Id. at 907.  

                                     



                                                                               -15-                                                                         7539
  


----------------------- Page 16-----------------------

                                                          34  

in   return   for   the   bribe   payments."                    ResQSoft   relies   on   Crowson   to   advocate   the  



unenforceability   of   the   subcontract's   forum   selection   clause,   but   ResQSoft   neither  



alleged nor otherwise provided evidence of the kind of fraudulent conduct evident in                                                     



                35  

Crowson.  



           B.	        The Superior Court Did Not Err By Dismissing ResQSoft's Unjust  

                                                                                                                                

                      Enrichment Claim Against The State.  

                                                                              



                      1.	       Legal framework for dismissal motions  

                                                                                       

                      Rule  12(b)(6)  motions  to  dismiss  are  viewed  with  disfavor.36                                          "[A]  

                                                                                                                                    



complaint should not be dismissed for failure to state a claim unless it appears beyond  

                                                                                                                                 



doubt that the plaintiff can prove no set of facts in support of [its] claim which would  

                                                                                                                                  

entitle [it] to relief."37  

                                                                                                                                        

                                      Like the superior court, we are required to "accept[] as true all  

                                                         38  But if the complaint refers to documents without  

                                                                                                              

factual allegations" in a complaint. 

attaching them, the court may consider them if their authenticity is unquestioned.39  

                                                                                                                                        



           34	       Id.  at  911.  



           35         Cf.  Nash   v.   Dreyer,   No.   S-14063,   2012   WL   1059667,   at   *2   (Alaska  



Mar. 28,  2012)  (upholding forum selection clause in consulting  agreement after appellant  

failed   to  present  any   evidence   of   fraud   or   misleading   conduct   in   inducement   or  

performance   of   contract);   see   also   Alaska   R.   Civ.   P.   9(b)   (requiring   pleading   fraud  

allegations  "with  particularity,"  a  heightened  pleading  standard).  



           36	        Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 253 (Alaska 2000).  

                                                                                                                            



           37        Id. at 254 (emphasis in original) (quoting Martin v. Mears, 602 P.2d 421,  

                                                                                                                                      

429 (Alaska 1979)).  

                      



           38         Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012); see also Caudle v.  

                                                                                                               

Mendel, 994 P.2d 372, 374 (Alaska 1999); Larson v. State, Dep't of Corr., 284 P.3d 1,  

                                                                                                                                         

6 (Alaska 2012).  

                  



           39        Alleva  v. Municipality  of Anchorage , 467  P.3d  1083,  1088-89 (Alaska  

                                                                                                                               

2020).  



                                                                   -16-	                                                            7539
  


----------------------- Page 17-----------------------

                        2.          Why  we  affirm  the  superior  court's  decision  



                        Unjust enrichment is an equitable doctrine applied only  when no  other  legal  



                           40  

remedy   exists.                                                                                                                                 

                                "Unjust enrichment is a broad  equitable concept  . . . . most closely  



                                                                                                                    41  

                                                                                                                        "Quasi-contracts  are  

linked with the law of restitution and implied (quasi) contracts." 

not  true  contracts  but  are  judicially  created  obligations  to  do  justice."42  

                                                                                                                                  There  are  three  



essential  elements  to  a  quasi-contract:   "(1)  a  benefit  conferred  upon  the  defendant  by  the  



plaintiff;   (2)   appreciation   by   the   defendant   of   such   benefit;   and   (3) acceptance   and  



retention  by  the  defendant   of   such  benefit  under   such   circumstances  that  it  would  be  



                                                                                                            43  

inequitable  .  .  .  to  retain  it  without  paying  the  value  thereof."                                    But  "the  most  significant  



requirement  for  recovery  in  quasi-contract  is  that  .  .  .  the  defendant  must  receive  a  true  



                                                                     44  

windfall  or  'something  for  nothing.'  "                               If  "a  defendant  has  given  fair  consideration  or  



value  to  a  third  party  in  exchange  for  the  benefits  conferred  by  the  plaintiff,  there  is  no  

windfall  and  no  recovery  will  lie."45  



                        The   State  had  a  contract  obligating  it  to  pay  Protech  for the p                                        roject,  and  



Protech  had   a   subcontract   obligating   it  to  pay   ResQSoft   for  work   on  the  project.    If  



Protech  breached  the  subcontract,  ResQSoft  has  a  legal  remedy  in  the  form  of  a  breach  



of  contract  claim,  along  with  its  statutory  claims.   And ResQSoft's contribution  to  the  



            40          See Knaebel v. Heiner                    , 663 P.2d 551, 553 (Alaska 1983).
                  



            41          Alaska Sales & Serv., Inc. v. Millet                            , 735 P.2d 743, 746 (Alaska 1987).
                  



            42          Id.
  



            43          Id.
  



            44          Id.
  



            45          Id.
  

                               



                                                                           -17-                                                                     7539
  


----------------------- Page 18-----------------------

project cannot be a windfall to the State because the State must pay Protech the contract                                                    

price for the benefits received; the State thus cannot receive "something for nothing."                                                                 46  



                        To avoid this conclusion, ResQSoft argues that its extensive contacts with  

                                                                                                                                                    



the State over the project's course, particularly given Protech's alleged dereliction of  

                                                                                                                                                       



duties under its contract with the State and ResQSoft's alleged performance of those  

                                                                                                                                                  



duties, equate to a separate quasi-contract with the State.  Although ResQSoft argued to  

                                                                                                                                                        



the superior court that it was "not demanding the State pay for Protech's breach or non- 

                                                                                                                                                   



payment," ResQSoft also argued that the only reason its work product is not yet legally  

                                                                                                                                               



owned by the State is Protech's non-payment to ResQSoft under the subcontract.  But  

                                                                                                                      



ResQSoft contends on appeal that its putative quasi-contract entitles it to relief from the  

                                                                                                                                                      



State regardless of any payment the State made to Protech under the terms of their  

                                                                                                                                                   



contract.  

                 



                        ResQSoft's  arguments  have  no  merit.                                     As  the  superior  court  noted,  

                                                                                                                                               



ResQSoft does not attempt to explain why legal remedies against Protech under the  

                                                                                                                                                     



subcontract - or under the Trade Secrets Act and the UTPA - insufficiently protect  

                                                                                                                                               



ResQSoft's interests to make an equitable unjust enrichment claim against the State  

                                                                                                                                                  



viable.  Nor does ResQSoft attempt to explain why the State should be liable both to  

                                                                                                                                                        



Protech  (by  contract)  and  ResQSoft  (by  quasi-contract)  for  ResQSoft's  work  and  

                                                                                                                                                    



proprietary information on the project.  

                                                        



                        To avoid the subcontract's forum selection clause, ResQSoft emphasized  

                                                                                                                                      



that it is not bringing a contract action to enforce legal contractual remedies against  

                                                                                                                            



Protech; rather, ResQSoft is seeking to enforce only its other legal statutory remedies.  

                                                                                                                                                             



But  as  the  superior  court  correctly  observed:                                      "There  is  no  dispute  that  the  work  

                                                                                                                                                 



performed by ResQSoft, for which compensation is sought, is work performed as the  

                                                                                                                                                      



            46  

                                

                        See id.  



                                                                          -18-                                                                         7539  


----------------------- Page 19-----------------------

 subcontractor on the project governed by the contract and subcontract."                                                                                                                                                                                                                                                              All aspects of                                         



ResQSoft's   equitable unjust enrichment claim against the State for                                                                                                                                                                                                                                                            work   done and   



proprietary materials provided for the project can be asserted as legal claims against                                                                                                                                                                                                                                             



Protech, regardless of possible change orders or contract adjustments that ResQSoft now                                                                                                                                                                                                                                                                                             



 speculates might show Protech gave the State contract discounts for the unpaid work and                                                                                                                                                                                                                                                                                               



proprietary   materials   ResQSoft   provided   for   the   project.     Even   if   the   unpleaded  



 speculation were true, that would not adversely affect ResQSoft's statutory claims or its                                                                                                                                                                                                                                                                                                  



presently unasserted contract claims against Protech.                                                                                                                                                    



                                                            ResQSoft's claim for unjust enrichment fails; the superior court correctly                                                                                                                                                                                                                        



granted the State's dismissal motion.                                                                                              



V.                             CONCLUSION  



                                                            We AFFIRM the superior court's dismissal of ResQSoft's claims against                                                                                                                                                                                                                                      



both Protech and the State.  

                                                                                                



                                                                                                                                                                                           -19-                                                                                                                                                                                  7539
  

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