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Ingenieurburo Giebisch & Volkert GMBH v. ASIMCO International, Inc.

United States District Court, E.D. Michigan, Southern Division

December 21, 2017

INGENIEURBÜRO GIEBISCH & VOLKERT GMBH, Plaintiff,
v.
ASIMCO INTERNATIONAL, INC., Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. 14)

          TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE

         I. Introduction

         This 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 in part.

         II. Background

         IBGV is 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.

         a. IBGV and ASIMCO Execute a Commission Contract

         On 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 Contract stated:

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 parties.

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.

         Appendix 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:

(IMAGE OMITTED)

Dkt. 16-2, Pg. ID 285.

         Testimony 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 ¶ 4.1.[1] 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.

         The 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.

         b. Plaintiff Begins Performing Activities For Products Other Than Those in Appendix A

         Although 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.

         According 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 142-43.

         On January 1, 2014, IBGV entered into a Consultancy Agreement with another division of ASIMCO HQ-ASIMCO Meilian (“Meilian”).[2] 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 International.

         According 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.

         Defendant 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.

         c. Daimler Awards Meilian a 35% Share of the Compressor Project

         On 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. ID 89.

         According 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.

         Between 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 ...


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