United States District Court, W.D. Washington, Seattle
DOMENIC J. FALCONE, Plaintiff,
ALTAROCK ENERGY, INC., Defendant.
Honorable Richard A. Jones United States District Judge
matter comes before the Court upon Defendant AltaRock Energy,
Inc.'s Motion for Summary Judgment. Dkt. # 20. Plaintiff
Domenic Falcone opposes the motion. Dkt. # 24. For the
reasons that follow, the Court DENIES the motion.
entered into a consulting relationship with Defendant for the
purpose of providing “business advisory
services.” Dkt. # 21-1. According to the parties'
Agreement, Defendant agreed to pay Plaintiff both a monthly
retainer as well as a success fee. Id. at p. 9. The
success fee was to be paid “[u]pon the closing of a
transaction where [Plaintiff] has played a significant role
in both introducing the party to [Defendant] and in
facilitating the negotiations of the transaction.”
November 2013, Plaintiff facilitated a negotiation between
Defendant and Blue Mountain Power, LLC. Dkt. # 21-2. The
parties drafted a binding term sheet in which Defendant would
purchase a company that indirectly owned a geothermal power
project. Id. The purpose of the transaction was for
Defendant to own “all of the equity interests of
the” company. Id. The parties terminated the
negotiations, and in January 2014, Defendant ended its
relationship with Plaintiff. Dkt. # 21 (Mandell Decl.) at
¶¶ 3-4. However, in early 2015, Defendant executed
an agreement to purchase 100% of the equity in the company
that owned the geothermal power project. Id. at
¶¶ 6-7. On May 13, 2015, the deal closed.
Id. at ¶ 7. The final agreement contains many
similarities to the unsuccessful term sheet drafted during
Plaintiff's tenure as Defendant's consultant.
Accordingly, Plaintiff sued Defendant for a success fee. In
its motion for summary judgment, Defendant counters that
Plaintiff is barred from suing for such a fee due to
Washington's Real Estate Brokers and Salesperson Act,
codified at Chapter 18.85 in Title 18 of the Revised Code of
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the moving
party will have the burden of proof at trial, it must
affirmatively demonstrate that no reasonable trier of fact
could find other than for the moving party. Soremekun v.
Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
2007). On an issue where the nonmoving party will bear the
burden of proof at trial, the moving party can prevail merely
by pointing out to the district court that there is an
absence of evidence to support the non-moving party's
case. Celotex Corp., 477 U.S. at 325. If the moving
party meets the initial burden, the opposing party must set
forth specific facts showing that there is a genuine issue of
fact for trial in order to defeat the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court
must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in that
party's favor. Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 150-51 (2000).
the court need not, and will not, “scour the record in
search of a genuine issue of triable fact.” Keenan
v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see
also White v. McDonnell-Douglas Corp., 904 F.2d 456, 458
(8th Cir. 1990) (the court need not “speculate on which
portion of the record the nonmoving party relies, nor is it
obliged to wade through and search the entire record for some
specific facts that might support the nonmoving party's
claim”). The opposing party must present significant
and probative evidence to support its claim or defense.
Intel Corp. v. Hartford Accident & Indem. Co., 952
F.2d 1551, 1558 (9th Cir. 1991). Uncorroborated allegations
and “self-serving testimony” will not create a
genuine issue of material fact. Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002);
T.W. Elec. Serv. v. Pac Elec. Contractors Ass'n,
809 F.2d 626, 630 (9th Cir. 1987).
The Court will not add “business
opportunities” to RCW 18.85.011(16).
motion, Defendant relies on RCW 18.85.331 to argue that
Plaintiff may not collect his success fee. See,
generally, Dkt. # 20. In relevant part, RCW 18.85.331
No suit or action shall be brought for the collection of
compensation as a real estate broker, real estate firm,
managing broker, or designated broker, without alleging and
proving that the plaintiff was a duly licensed real estate
broker, managing broker, or real estate firm before the time
of offering to perform any real estate transaction or
procuring any promise or contract for the payment of
compensation for any contemplated real estate transaction.
Wash. Rev. Code Ann. § 18.85.331 (West). According to
the Code, real estate brokers, real estate firms, managing
brokers, and designated brokers perform “real estate
brokerage services.” RCW 18.85.011(2), (10), (14),
(17). “Real estate brokerage services” include a
litany of services related to real estate “offered or
rendered directly or indirectly to another, or on behalf of
another for compensation or the promise or expectation of
compensation . . . .” RCW 18.85.011(16).
argues that the Code's definition of “real estate
brokerage services” previously included the purchase of
“business opportunities” as a brokerage service
and therefore the Court should continue to read this into the
current version of the provision. Dkt. # 20 at p. 6. However,
the legislature revised this Code section in 2010 such that
“business opportunities” is no longer included
within the definition of “real estate brokerage
services.” Compare RCW 18.85.010 with
RCW 18.85.011. Defendant relies on outdated case law and
secondary sources, as well as two separate and distinct