National Management Services, Inc. v. Qwest Dex, Inc.
Docket: No. 03-35109
Court: Court of Appeals for the Ninth Circuit; July 7, 2004; Federal Appellate Court
National Management Services, Inc. appeals the district court’s summary judgment favoring Qwest Dex, Inc. The appellate court has jurisdiction under 28 U.S.C. § 1291 and affirms in part while reversing in part the lower court's decision. The court reviews the summary judgment de novo. The appellate court reverses the dismissal of National's claim regarding improper payment of year 2000 commissions. While the district court correctly recognized that performance of sales in 1999 constituted consideration for the 1999 commission promise, it erred in not recognizing that the same performance could also serve as consideration for the promise that the "current compensation criteria will remain in effect" for 2000. The court cites the Restatement (Second) of Contracts, noting a single performance may support multiple promises. However, the court affirms the dismissal of National's claim for underpayment related to year 2002 sales, as the arguments presented were either waived—due to improper raising in the district court or not being included in the opening brief. Additionally, the court upholds the dismissal of the bad faith claim. Under Oregon law, a breach of the covenant of good faith and fair dealing requires unreasonable interference with the ability to receive contractual benefits. National's claim, based on the existence of a dual fee schedule rather than specific actions by Qwest, was not sufficient to demonstrate bad faith. Each party is to bear its own costs. The court’s decision is affirmed in part, reversed in part, and remanded. The ruling is not intended for publication and may not be cited except under Ninth Circuit Rule 36-3.