United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT.
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
case arises from a dispute over a contract between a German
engineering consulting firm and a Chinese auto parts
manufacturer. Plaintiff Ingenieurbüro Giebisch &
Volkert GMBH (“IBGV” or “Plaintiff”)
alleges that it agreed to solicit and procure contracts for
the production of certain automobile components on behalf of
Defendant ASIMCO International, Inc. (“ASIMCO”),
but that Defendant breached the Contract by improperly
removing Plaintiff from a project involving the solicitation
of a compressor to Daimler AG. Plaintiff also argues, in the
alternative, that Defend- ant was unjustly enriched by
Plaintiff's efforts, and seeks compensation for about two
years' worth of consulting and project management
services it allegedly performed for Defendant. Defendant has
moved for summary judgment, which Plaintiff opposes. For the
reasons outlined below, Defendant's motion is
GRANTED in part and DENIED
a German engineering and consulting firm headed by Andreas
Giebisch (“Giebisch”) and Joachim Volkert
(“Volkert”). Dkt. 16, Pg. ID 254. Defendant
ASIMCO International, Inc. (“ASIMCO”) is a
subsidiary of ASIMCO Technologies, Ltd. (“ASIMCO
HQ”), a Chinese auto parts manufacturer with a number
of other subsidiaries. Dkt. 16, Pg. ID 254.
IBGV and ASIMCO Execute a Commission Contract
August 1, 2012, Plaintiff and Defendant executed a contract
(the “Contract”) providing that “IBGV will
actively represent ASIMCO at the agreed customers/territories
on products manufactured or service provided by
ASIMCO.” Dkt. 16-2, Pg. ID 278. In particular, the
ASIMCO hereby appoints IBGV as its authorized sales
representative for the purpose of soliciting and securing
orders on a commission basis for the sale of its products
(the “Products'). The assigned accounts and
products for IBGV shall be as stated in Appendix A, which can
be modified based on mutual agreements between the two
Dkt. 16-2, Pg. ID 278. The agreement provided for a two-year
term of duration, beginning on August 1, 2012, and renewing
automatically each year for successive one-year periods,
unless either party provided notice of its intent to
terminate at least 90 days prior to the end of the current
term. Dkt. 16-2, pg. ID 281.
A to the Contract provided that IBGV would be responsible for
consulting with Daimler AG (Daimler) and China Spring, in all
regions, for a product identified as a
"Stabilizer." Appendix A is reproduced below:
Dkt. 16-2, Pg. ID 285.
in the record shows that during contract negotiation, IBGV
sought to obtain a "fixed fee" compensation
agreement with Defendant. Dkt. 16-4, Pg. ID 470; See
Dkt. 16-3, Pg. IDs 337-39. However, the Contract ultimately
afforded no fixed fee compensation, but rather included
various commission-based methods of compensation. First, the
Contract provided that IBGV would receive a commission of 3%
for all sales of the services or products contemplated by the
Contract, less returns and allowances. Dkt. 16-2, Pg. ID 280
Second, if IBGV helped ASIMCO increase its sales price, IBGV
would share 30% of the increased portion, less certain
exclusions. Id. ¶ 4.3. Finally, IBGV would be
compensated “for business developed by IBGV where IBGV
served as an engineering and sales liaison within
Europe.” Id. ¶ 4.4.
Contract also addressed how the parties could make changes,
amendments, and modifications. It provided that all changes,
amendments, and modifications shall be: 1) based on mutual
agreement by the parties, and 2) in writing. Dkt. 16-2, Pg.
ID 284 ¶ 9(D) (“Amendments. This agreement cannot
be changed, modified or amended except in writing . . .
.”); Id. ¶ 10 (“No change or
amendment of the agreement shall be effective unless both
parties have agreed and executed the change or amendment in
written form.”). The Parties agree that the Contract,
including Appendix A, was never modified in writing as
required by paragraphs 9(D) and 10 of the Contract.
See Dkt. 14, Pg. ID 94; Dkt. 14-3, Pg. ID 123.
Plaintiff Begins Performing Activities For Products Other
Than Those in Appendix A
Appendix A of the Contract only identifies a
“stabilizer” as the product for potential sale to
Daimler and China Spring, ASIMCO's general manager Wilson
Ni (“Ni”) conceded in response to a deposition
question that IBGV performed work “pursuant to the
contract” for customers and products other than those
listed in Appendix A:
[Counsel] Question: But the work that IBGV was doing for
ASIMCO pursuant to the contract marked as Exhibit 3, it
wasn't just the customers and products listed on Appendix
A, was it?
[Wilson Ni] Answer: Correct. Correct.
Dkt. 16-3, Pg. ID 354.
to Plaintiff, soon after executing the Contract, Plaintiff
and Defendant agreed that Plaintiff would also work to
solicit the sale of a compressor to Daimler (the
“Compressor Project”). Dkt. 1, Pg. ID 3.
Plaintiff maintains that after this new agreement, Plaintiff
“immediately went to work to solicit sales of a
proposed compressor to Daimler.” Dkt. 1, Pg. ID 4.
IBGV's efforts allegedly spanned over two years
(2012-2015) and included, among other things, travelling to
China to visit ASIMCO plants, coordinating staffing and
product development strategy, contributing to the development
of a compressor prototype, hiring a specialist in connection
with the Compressor Project, meeting with Daimler
representatives, and maintaining daily communications with
Daimler and ASIMCO. See, e.g., Dkt. 16, Pg. ID 263.
Plaintiff argues that these activities were in relation to
the Compressor Project, as well as other products for which
it was responsible. Dkt. 1, Pg. ID 4; Dkt. 14-3, Pg. ID
January 1, 2014, IBGV entered into a Consultancy Agreement
with another division of ASIMCO HQ-ASIMCO Meilian
(“Meilian”). Dkt. 14-5, Pg. IDs 154-55. Like ASIMCO
International, Meilian was a subsidiary of ASIMCO HQ.
See Dkt. 15-16, Pg. ID 586. Plaintiff and Defendant
take different positions as to the meaning and scope of the
2014 Consultancy Agreement, and how it relates to the work
Plaintiff did on the Compressor Project for ASIMCO
to Plaintiff, the Consultancy Agreement with Meilian was
“unrelated to the work Plaintiff was doing on
behalf of the Compressor Project, but rather governed the
hiring of a ‘consultant' for the project, Eberhard
Bredel (“Bredel”), whose compensation would be
paid by Meilian to Plaintiff, and then to Bredel.” Dkt.
16, Pg. ID 257 (emphasis in original) (internal citations
omitted). Plaintiff further maintains that the Consultancy
Agreement was drafted after “[p]laintiff had already
secured the awarding letter from Daimler for the Compressor
Project and had been working on the Compressor
Project.” Dkt. 16, Pg. ID 257-58 (internal citations
omitted). Ultimately, Plaintiff argues that the Consultancy
Agreement was to pay a consultant, Bredel, for services on
behalf of Meilian, and not to compensate Plaintiff for work
it had done in relation to the Compressor Project. Dkt. 16,
Pg. ID 258.
argues that the Consultancy Agreement embodies Meilian's
agreement to compensate Plaintiff for the same services that
Plaintiff now alleges Defendant must pay for under the
Contract with ASIMCO International. According to Defendant,
the Consultancy Agreement was for IBGV to provide Meilian
with technical support and assistance to develop
Meilian's European Compressor Business. Dkt. 14, Pg. ID
98. Defendant argues Plaintiff now seeks to “double
dip” for its work: “Having received 100,
000€ for assisting Meilian in developing the compressor
business in Europe, IBGV may not now seek a commission from
ASIMCO International for the very same work.” Dkt. 14,
Pg. ID 98.
Daimler Awards Meilian a 35% Share of the Compressor
January 28, 2014, Daimler provided Meilian an award letter
(“Award Letter”) for a Modular 1-Cylinder Air
Compressor (“the Compressor”). The Award Letter
covered Meilian's supplying a 35% share of the
compressors needed for Daimler's production facilities in
Mannheim and Detroit for the years 2020-25 (and a lesser
share for the years 2016-19) and had an estimated value of
31, 000, 000 euros. Dkt. 16-6, Pg. ID 551-54. Defendant
maintains the award letter was “non-binding” and
that Plaintiff “has failed to produce a single order
from Daimler to Meilian for a compressor.” Dkt. 14, Pg.
to Plaintiff, “when IBGV was working on the Compressor,
even though the work was additionally benefitting Meilian,
IBGV was doing so for and on behalf of Defendant.” Dkt.
16, Pg. ID 259. At his deposition, Ni testified that for over
ten years, ASIMCO International would at times be the
“seller” and derive its own revenue for
international sales of products, even if other ASIMCO
companies ultimately produced those products. See
Dkt. 14-17, Pg. IDs 199-200. However, with respect to the
Compressor Project, Ni stated that the seller or supplier of
the Compressor was “no longer ASIMCO International but
ASIMCO Meilian [was] the seller.” Ni also stated
Defendant did not inform Plaintiff about the “shifting
from ASIMCO International to ASIMCO Meilian.”
See Dkt. 16-3, Pg. IDs 386-87.
February 5 and February 7, 2014, Giebisch and ASIMCO HQ's
Commercial Department Director, Chen Gang, exchanged several
emails and a “matrix” document to “clarify
who does what and who is responsible for customer business in
Europe.” Dkt. 16-12, Pg. ID 573. The last email in this
series-sent by Chen Gang to Giebisch, Volkert, and
Ni-indicated that the parties had discussed the issue, and
forwarded an updated matrix, which stated ...