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National Management Services, Inc. v. Qwest Dex, Inc.
Citation: 99 F. App'x 108Docket: No. 03-35109; D.C. No. CV-01-01772-DJH
Court: Court of Appeals for the Ninth Circuit; May 14, 2004; Federal Appellate Court
National Management Services, Inc. appeals the district court’s summary judgment in favor of Qwest Dex, Inc., with the appellate court affirming in part and reversing in part. The court has jurisdiction under 28 U.S.C. § 1291. It reviewed the district court’s decision de novo, specifically addressing the claims regarding commission payments. The appellate court reversed the dismissal of the claim concerning improper payment of year 2000 commissions. It determined that while the district court correctly acknowledged that the performance of year 1999 sales constituted consideration for the promise to pay commissions for 1999, it erroneously concluded that this same performance could not serve as consideration for the promise that the compensation criteria would remain unchanged for 2000. The court cited the Restatement (Second) of Contracts, noting that a single performance may support multiple promises. There remains a triable issue on whether the 1999 sales performance was indeed consideration for the 2000 promise. Conversely, the court affirmed the dismissal of National’s claim for underpayment of year 2002 sales, stating that both arguments presented were waived—one was not raised in the district court, and the other was omitted from the appellant’s opening brief. The court also upheld the dismissal of National's bad faith claim. Under Oregon law, a remedy for breach of the covenant of good faith and fair dealing requires unreasonable interference with a party's contractual benefits. The court found no evidence that Qwest solicited National’s customers, as the record only indicated that Qwest maintained a dual fee schedule. Each party will bear its own costs, and the case is affirmed in part, reversed in part, and remanded. The disposition is not for publication and may not be cited except as allowed by Ninth Circuit Rule 36-3.