Alorica Inc. v. Tech Mahindra (Americas) Inc.

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ALORICA INC.,

Plaintiff,
v.

TECH MAHINDRA (AMERICAS)
INC.,

Defendant.
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Civil Action No. 4:24-cv-30
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Tech Mahindra (Americas) Inc.’s Motion for Partial
Summary Judgment (Dkt. #101). Having considered the Motion the relevant pleadings, and the
applicable law, the Court finds that the Motion should be GRANTED in part and DENIED in
part. Also before the Court is Plaintiff Alorica Inc.’s Motion for Summary Judgment (Dkt. #104).
Having considered the Motion, the relevant pleadings, and the applicable law, the Court finds that
the Motion should be GRANTED in part and DENIED in part. Also before the Court is Plaintiff
Alorica Inc.’s Motion to Strike Portions of Defendant Tech Mahindra (Americas) Inc.’s Sur-Reply
in Further Opposition to Alorica’s Motion for Summary Judgment (Dkt. #133). Having considered
the Motion, the relevant pleadings, and the applicable law, the Court finds that the Motion should
be DENIED
BACKGROUND
This case arises from a contract dispute between Plaintiff and Defendant (collectively the
“Parties”) concerning customer service outsourcing for AT&T. In April 2021, the Parties executed
a contract whereby Plaintiff agreed to provide customer support services for Defendant in support
of Defendant’s obligations to AT&T (Dkt. #100-4; Dkt. #101 at pp. 8–15; Dkt. #104 at pp. 9–13).
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Due to a dispute over billing, the Parties executed an amendment in August 2022, which raised the
billing rates for U.S. based full-time employees (“FTEs”) and included a plan to transition services
to foreign countries (Dkt. #100-34; Dkt. #101 at pp. 8–15; Dkt. #104 at pp. 9–13).
1

The current dispute centers on the rights and obligations of the Parties with respect to the
ramp-down of U.S. based FTEs and ramp-up of foreign based FTEs according to the agreed on
Amendment, which included a Transition Plan (setting out the rate at which U.S. FTEs would be
ramped down) and Billing Schedule (setting the billing rates for FTEs and the total monthly billing
limit Plaintiff could invoice) (See Dkt. #1; Dkt. #69; Dkt. #100-34; Dkt. #101; Dkt. #104). Plaintiff
contends that AT&T told it to halt certain aspects of the Transition Plan, which created delays and
challenges that allowed it to invoice at a different billing rate and limit (Dkt. #104; Dkt. #111; Dkt.
#111-16). According to Plaintiff, AT&T’s decision created a situation contemplated under the
“Excusable Delay” provision of the Amendment, which would permit it to bill at a higher rate and
limit than set out under the Transition Plan (Dkt. #100-34; Dkt. #104; Dkt. #111; Dkt. #111-16).
Plaintiff concludes that Defendant breached the Contract by failing to pay the invoices it charged
under the Excusable Delay provision (Dkt. #1; Dkt. #104; Dkt. #111). Defendant disputes that an
Excusable Delay occurred, instead arguing that Plaintiff breached the Contract by unilaterally
invoicing it without Defendant’s approval of the amount above the billing limit, in violation of the
Amendment and Transition Plan (Dkt. #69; Dkt. #101; Dkt. #115).
On January 12, 2024, Plaintiff filed suit for a breach of contract seeking to recover
approximately $2.21 million in unpaid invoices (Dkt. #1 at pp. 2–3). Plaintiff asserts the following

1
The Court will refer to the 2021 Contract and the 2022 Amendment collectively as “the Contract.” Where necessary,
the Court will individually reference the 2022 Amendment as “the Amendment” (Dkt. #100-34).
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causes of action: (1) breach of contract, (2) suit on sworn account, (3) quantum meruit, (4) money
had and received, (5) promissory estoppel, and (6) unjust enrichment (Dkt. #1 at pp. 3–6). On
March 12, 2024, Defendant filed its Answer and asserted counterclaims for breach of contract and
promissory estoppel (Dkt. #5 at pp. 5–7). On February 10, 2025, Defendant filed its Second
Amended Answer, adding a counterclaim for fraudulent misrepresentation (Dkt. #69 at p. 18).
On March 8, 2025, Defendant filed its Motion for Partial Summary Judgment (Dkt. #101).
Plaintiff Responded on March 29, 2025 (Dkt. #111). Defendant filed its Reply on May 6, 2025, and
Plaintiff filed its Sur-Reply on May 13, 2025 (Dkt. #122; Dkt. #124). Plaintiff filed its Motion for
Summary Judgment on March 11, 2025 (Dkt. #104). Defendant responded to Plaintiff’s Motion
on May 5, 2025 (Dkt. #115). Plaintiff filed its Reply on May 9, 2025, and Defendant filed its
Sur-Reply on May 16, 2025 (Dkt. #128). On May 28, 2025, Plaintiff filed a Motion to Strike
Portions of Defendant’s Sur-Reply (Dkt. #133). Defendant filed a Response to Plaintiff’s Motion
to Strike on June 10, 2025 (Dkt. #138). Plaintiff filed a Reply on June 17, 2025 (Dkt. #140).
Defendant did not file a Sur-Reply.
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported claims
or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment is proper
under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A dispute about a material fact is genuine when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id. The trial court “must
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resolve all reasonable doubts in favor of the party opposing the motion [for summary judgment].”
Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).
The party seeking summary judgment bears the initial burden of informing the court of its
motion and identifying “depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of
material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden
of proof on a claim or defense for which it is moving for summary judgment, it must come forward
with evidence that establishes “beyond peradventure all of the essential elements of the claim or
defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears
the burden of proof, the movant may discharge the burden by showing that there is an absence of
evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News,
Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant
must “respond to the motion for summary judgment by setting forth particular facts indicating
there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248–49). A
nonmovant must present affirmative evidence to defeat a properly supported motion for summary
judgment. Anderson, 477 U.S. at 257. Mere denials of material facts, unsworn allegations, or
arguments and assertions in briefs or legal memoranda will not suffice to carry this burden. See
Solomon v. Hous. Corrugated Box Co., 526 F.2d 389, 396–97 (5th Cir. 1976). Rather, the Court
requires “significant probative evidence” from the nonmovant to dismiss a request for summary
judgment. In re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982) (quoting
Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)). The Court must consider all of the
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evidence but “refrain from making credibility determinations or weighing the evidence.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
ANALYSIS
Defendant claims that it is entitled to summary judgment (1) on its interpretation of the
Contract, (2) that Plaintiff breached the Contract, (3) that Plaintiff’s suit on sworn account claim
fails as a matter of law, and (4) that Plaintiff’s quasi-contract claims fail a matter of law because a
valid and enforceable contract governs the dispute (Dkt. #101). Plaintiff claims that it is entitled to
summary judgment (1) on its interpretation of the Contract, (2) that Defendant breached the
Contract, (3) that it is entitled to judgment as a matter of law on its suit on sworn account claim,
(4) that it is entitled to judgment as a matter of law on Defendant’s breach of contract and
fraudulent misrepresentation claims because Defendant did not suffer any cognizable damages, and
(5) that Defendant’s promissory estoppel claims fails as a matter of law because there is a valid and
enforceable contract that governs the dispute (Dkt. #104). The Court will begin by addressing the
interpretation of the Contract in Section I. Also in Section I, the Court will evaluate whether a
genuine dispute of material fact exists regarding which Party breached the Contract. In Section II,
the Court will evaluate whether Plaintiff or Defendant is entitled to summary judgment on
Plaintiff’s suit on sworn account claim. Then, in Section III, the Court will evaluate whether
Defendant is entitled to summary judgment on Plaintiff’s quasi-contract theories. Finally, in
Section IV, the Court will evaluate whether Plaintiff is entitled to summary judgment on any of
Defendant’s counterclaims.
I. Breach of Contract
Plaintiff and Defendant both move for summary judgment on their breach of contract
claims (Dkt. #101; Dkt. #104). Both argue that the contract is unambiguous, that their
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interpretation is the only interpretation, and that factually there is no genuine dispute of material
fact (See Dkt. #101; Dkt. #104). The Court will begin its evaluation by determining whether the
Contract is unambiguous, and if it is, what the respective rights of the Parties are under the
Contract. Next, the Court will evaluate whether there is a genuine issue of material fact regarding
which Party breached the Contract.
Defendant argues that the Contract sets a firm limit on the monthly billing limit that
Plaintiff can invoice (Dkt. #101 at pp. 17–29; Dkt. #115 at pp. 11–27). Defendant’s argument rests
upon Section 8 of the Amendment, which states that “[t]he total monthly invoice from Alorica to
Tech Mahindra shall not exceed the agreed Monthly Billing set forth in the Billing Schedule in
Appendix 1, unless otherwise mutually agreed to by the parties” (Dkt. #101; Dkt. #100-34 at p. 5).
According to Defendant, this clause requires any increase in the billing limit to be agreed on by the
Parties (Dkt. #101). Defendant says this reading is supported by Section 6.2, which provides:
A Transition Plan has been mutually agreed upon between AT&T, Tech Mahindra
and Alorica which is attached hereto as Appendix 1. Tech Mahindra and AT&T
have agreed not to make changes to the transition plan or invoice schedule. Alorica
has agreed to implement the transition plan provided in Appendix 1 with full
performance accountability. Alorica agrees to provide efficiency/productivity gains
through reduction of US billable headcount by minimum 5 billable headcount within
September 2022 and an additional 5 billable headcount within December 2022,
contingent to AT&T’s agreement to reductions with their written approval.
Notwithstanding the foregoing, all parties mutually agree to negotiate a revision of
the transition plan and billing schedule in the event AT&T decides to staff a higher
proportion of FTEs in the Philippines location or any other global locations. All
Parties acknowledge and agree that time is of the essence under this Agreement,
and failure of Alorica to meet the deadlines set forth in the transition plan shall
constitute a material breach of this Agreement. Except for delays and challenges
caused by Excusable Delays as defined below in section 6.4, Alorica and Tech
Mahindra agree that if the North American FTE number exceeds the number in the
ramp plan for a particular time period, Alorica can only invoice Tech Mahindra the
amount associated with the new location to which services should have been
transitioned. For example, if in October 2022, Alorica has 217 NA FTE, the excess
20 FTE (217-197) will be billed at $3,700 per month, not $6,200.
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(Dkt. #101-34 at p. 4).
Defendant argues that this Section establishes multiple obligations. First, it prohibits
Defendant and AT&T from making any changes to the Transition Plan without negotiations
(Dkt. #100-34 at p. 4; Dkt. #101 at pp. 17–29). Second, it requires negotiations when there are any
change to the billing limit or Transition Plan, in the event that AT&T makes changes the Transition
Plan (Dkt. #100-34; Dkt. #101 at pp. 17–29). Third, it requires Plaintiff to bill according to the
Billing Schedule, unless a force majeure event occurs, as set out in Section 6.4 as an Excusable
Delays (Dkt. #100-34 at pp. 4–5; Dkt. #101 at pp. 17–29). If such an Excusable Delay occurs,
Plaintiff may bill at the rate associated with the time period prior to the Excusable Delay
(Dkt. #100-34 at p. 4; Dkt. #101 at pp. 17–29). Section 6.4 allows Plaintiff to deviate from the Billing
Schedule as to the billing rate, only in the event of a force majeure:
Alorica shall not be liable for any delay or inability to perform its obligations under
this Agreement or otherwise if such delay or inability arises from any Act of God,
fire, natural disaster, act of government, pandemic, changes in ramp initiated by
AT&T or Tech Mahindra or any other cause beyond the reasonable control of such
party which could not be avoided by the exercise of due care. Each party will use its
best efforts to minimize the duration and consequences of any failure of or delay in
performance resulting from an Excusable Delay.
(Dkt. #100-34 at pp. 4–5; Dkt. #101 at pp. 17–29). According to Defendant, Plaintiff breached the
Contract because no Excusable Delay occurred and Plaintiff attempted to unilaterally bill at a higher
rate and impose higher billing limits in violation the Contract (See Dkt. #101 at pp. 17–29).
Plaintiff argues that Defendant’s reading renders the Excusable Delay provision
meaningless (Dkt. #104; Dkt. #111). To Plaintiff, the Contract can be read harmoniously by
understanding that Section 6.2 sets up a general framework and an exception (See Dkt. #104;
Dkt. #111). Plaintiff agrees that Defendant’s understanding is generally how the Contract works—
i.e., under the general framework the billing limits, Billing Schedule, and Transition Plan control
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(See Dkt. #104; Dkt. #111). However, Plaintiff argues that challenges and delays arising from an
Excusable delay allow for a higher billing rate and limit than set out in the Transition Plan and
Billing Schedule (See Dkt. #104; Dkt. #111). Should an Excusable Delay arise, Plaintiff is permitted
to invoice for the full amount that it incurred, pursuant to the Billing Schedule at the time
immediately prior to the delay or challenge (See Dkt. #104 at pp. 13–22; Dkt. #111 at pp. 12–28;
Dkt. #124 at pp. 4–6). More specifically, when an Excusable Delay occurs, Plaintiff argues that it
can invoice at the same billing rate and billing limit as the time prior to the delay (See Dkt. #104 at
pp. 13–22; Dkt. #111 at pp. 12–28; Dkt. #124 at pp. 4–6). Further, Section 8’s requirement for an
agreement to increase the billing limit is met because the Parties mutually agreed to the Excusable
Delay exception, thus no further negotiations are required (See Dkt. #104 at pp. 13–22; Dkt. #111
at pp. 12–28; Dkt. #124 at pp. 4–6). As set out below, the Court agrees with Plaintiff.
The first step for the Court is to determine whether the Contract is unambiguous, and, if it
is, to determine the respective rights and obligations the Parties agreed to be bound by. The Court,
sitting in diversity, applies Texas contract law. H.E. Butt Grocery Co. v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa., 150 F.3d 526, 529 (5th Cir. 1998).
2
Under Texas law, whether the language of a
contract is ambiguous is a question of law for the Court. Hennigan v. Chargers Football Co., 431 F.2d
308, 314 (5th Cir. 1970). Neither Party argues that the Contract is ambiguous (See Dkt. #101; Dkt.
#104; Dkt. #111; Dkt. #115). However, “[a] court may conclude that a contract is ambiguous even
in the absence of such a pleading by either party.” Sage St. Assocs. v. Northdale Constr. Co., 863
S.W.2d 438, 445 (Tex. 1993).

2
The Parties do not dispute that Texas law applies to this dispute (See Dkt. #101; Dkt. #104; Dkt. #111; Dkt. #115).
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“If a written instrument is so worded that it can be given a certain or definite legal meaning
or interpretation, then it is not ambiguous and the court will construe the contract as a matter of
law.” SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005) (citing Coker v. Coker, 650
S.W.3d 391, 393 (Tex. 1983)). When a contract is unambiguous, extrinsic evidence “will not be
received for the purpose of creating an ambiguity or to give the contract a meaning different from
that which its language imports.” Skyland Devs., Inc. v. Sky Harbor Assocs., 586 S.W.2d 564, 568
(Tex. App—Corpus Christi 1979, no writ) (quoting Universal C.I.T. Credit Corp. v. Daniel, 243
S.W.2d 154, 157 (Tex. 1951)). The Court must enforce unambiguous contractual language as
written. See Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 731–32 (Tex. 1981). The applicable
standard is the “objective intent” evidenced by the language used, rather than the subjective intent
of the parties. See id.
Contract terms “are given their plain, ordinary, and generally accepted meanings unless the
contract itself shows them to be used in a technical or different sense.” Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). The Court’s primary concern is to enforce the parties’
intent as expressed in the contract. Sundaram v. Nemeth, No. 1:06-CV-712, 2008 WL 80017, at *9
(E.D. Tex. Jan. 7, 2008). When construing a contract, the intention of the parties is to be gathered
from the instrument as a whole. See Seagull Energy E&P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342,
345 (Tex. 2006). The “court is bound to read all parts of a contract together to ascertain the
agreement of the parties.” Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). “No single
provision taken alone will be given controlling effect; rather, all the provisions must be considered
with reference to the whole instrument.” SAS Inst., Inc., 167 S.W.3d at 841.
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The Court may not consider extrinsic evidence to contradict or vary the meaning of
unambiguous language in a written contract in order to create an ambiguity. Sears, Roebuck & Co. v.
Com. Union Ins. Corp., 982 S.W.2d 151, 154 (Tex. App.—Houston [1st Dist.] 1998, no pet.). The
Court may consider the parties’ interpretations of the contract through extrinsic or parol evidence
only after a contract is first determined to be ambiguous. See Friendswood Dev. Co. v. McDade & Co.,
926 S.W.2d 280, 283 (Tex. 1996). An “ambiguity must become evident when the contract is read
in context of the surrounding circumstances, not after parol evidence of intent is admitted to create
an ambiguity.” Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 521
(Tex. 1995). One of the exceptions to the parol evidence rule is that if the written instrument itself
shows to be either ambiguous or incomplete, parol testimony is admissible to show what the real
contract was to the extent necessary to remove the ambiguity, and to make the contract complete
in its terms which show to be incomplete. Warren Bros. Co. v. A.A.A. Pipe Cleaning Co., 601 S.W.2d
436, 438 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (quoting Magnolia Warehouse &
Storage Co. v. Davis & Blackwell, 195 S.W. 184, 185 (1917)). In other words, “[w]here a writing is
incomplete or ambiguous, parol evidence is admissible to explain the writing or to assist in the
ascertainment of the true intentions of the parties insofar as the parol evidence does not alter or
contradict any part of the written memorandum in question.” Id. at 438–39.
If, after application of the pertinent rules of construction, the contract is subject to two or
more reasonable interpretations, the contract is ambiguous, and a fact issue exists regarding the
parties’ intent. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.
1996). A lack of clarity in the language chosen by the parties does not suffice to render an agreement
ambiguous. Universal C.I.T. Credit Corp., 243 S.W.2d at 157. Rather, “[o]nly if the intention of the
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parties as expressed on the face of the document is doubtful may the court resort to parol evidence
to resolve the doubt.” Massey v. Massey, 807 S.W.2d 391, 405 (Tex. App.—Houston [1st Dist.] 1991,
writ denied). An ambiguity does not arise simply because the parties advance conflicting
interpretations of their agreement. See Forbau, 876 S.W.2d at 134.
For an ambiguity to exist, both interpretations must be reasonable. Columbia Gas, 940
S.W.2d at 589. It is for the Court to decide whether there is more than one reasonable interpretation
of a contract, thereby creating a fact issue concerning the parties’ intent. Id. “If the contract
contains an ambiguity, summary judgment is improper ‘because the interpretation of the
instrument becomes a fact issue.’” Gilliland v. Cornell Companies, Inc., No. H-07-1655, 2008 WL
4858353, at *6 (S.D. Tex. Nov. 10, 2008) (quoting Coker, 650 S.W.2d at 393).
The Court finds that the Contract is unambiguous. The Parties’ primary dispute revolves
around the language of Section 6.2 of the Amendment. Specifically, they dispute the meaning of
the following provision:
Except for excusable delay and challenges caused by Excusable Delays as defined
below in section 6.4, Alorica and Tech Mahindra agree that if the North American
FTE number exceeds the number in the ramp plan for a particular time period,
Alorica can only invoice Tech Mahindra the amount associated with the new
location which services should have been transitioned.
(Dkt. #100-34 at p. 4). This provision sets out two obligations. First it sets up a general rule:
Plaintiff can only invoice according to the Transition Plan and Billing Schedule, even if a delay
occurs. Should a delay occur, Plaintiff will invoice as if those FTEs had transitioned according to
the Transition Plan. In other words, the “amount”—i.e., rate and billing limit—in the Billing
Schedule continue to apply in full force and affect (Dkt. #100-34 at p. 4).
Second, the provisions sets up an exception to the general rule: Plaintiff can bill at the status
quo amount—i.e., the rate and billing limit—attributable to the month of a delay or challenge when
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an “Excusable Delay” arises (Dkt. #100-34). In other words, when a specific, approved reason for
the delay or challenge in the transition of FTEs arises, Plaintiff can invoice for the amount it had
previously invoiced Defendant for. This makes sense, as it recognizes that there may be
circumstances where Plaintiff cannot transition to the planned amount of FTEs but will not be
required to perform the same amount of services at a discount (i.e., lower rate) or for free (i.e.,
exceeding the billing limit due to the higher rate for the same amount of work without the ability to
invoice for the full amount that month) (See Dkt. #100-34).
Further, the Billing Schedule clearly recognizes that the billing limit is tied to the lower
billing rates that Plaintiff will charge as it transitions FTEs out of the U.S. (See Dkt. #100-34 at
p. 8). The Billing Schedule clearly shows a direct relationship between the increase in billing by
non-U.S. FTEs at a lower rate and the billing limit—i.e., as cheaper labor is employed the total
invoice amount decreases because the same work is performed at a lower cost (Dkt. #100-34 at
pp. 7–8). Thus, should the billing rate not decrease, the billing limit would also not decrease, as
they both decrease in tandem (See Dkt. #100-34 at p. 8). Should the billing limit decrease while the
billing rate remained the same, the effect would essentially be a decrease in the rate as well because
Plaintiff would still perform the same amount of work without the possibility of payment (See
Dkt. #100-34). This is because the billing limit would not make the corresponding adjustment in
connection with the rate being billed (See Dkt. #100-34 at p. 8). Therefore, the Contract is
unambiguous. The Excusable Delay exception permits Plaintiff to bill at the rate and limit at the
time prior to an Excusable Delay should one arise (See Dkt. #100-34).
The Amendment defines an Excusable Delay in Section 6.4: “Alorica shall not be liable for
any delay or inability to perform its obligations under this Agreement or otherwise if the delay or
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inability arises from . . . changes in ramp initiated by AT&T” (Dkt. #100-34 at p. 4). Thus, if
AT&T initiates a change in “ramp,” Plaintiff can maintain the status quo billing rate and billing
limit from the time AT&T initiated the change (See Dkt. #100-34). The Amendment does not
explicitly define the term “ramp” (See Dkt. #100-34). However, contextually, the term “ramp
plan” and “ramp” are referring to the Transition Plan, which outlines the timeline to decrease U.S.
based FTEs and increase foreign based FTEs (See Dkt. #100-34).
3
Therefore, when AT&T initiates
a change to the increase in foreign based FTEs or decrease in the U.S. based FTE’s, any challenge
or delay on Plaintiff’s part is excused and it may use the exception to bill at the status quo rate and
billing limit at the time of AT&T’s change (See Dkt. #100-34).
When taken as a whole, the exception applies in the following way: (1) AT&T changes the
ramp up of FTEs, which creates a challenge or delay, (2) due to the challenge or delay, Plaintiff
may invoice for the amount consistent with Billing Schedule prior to the challenge or delay, not the
planned amount, (3) billing for this amount includes billing at the same rate and at the same limit
because those terms work together, and (4) Plaintiff does not need to seek an increase to the billing
limit under Section 8, as the Parties mutually agreed to the exception, which necessarily permits
Plaintiff to invoice at the amount before the Excusable Delay (See Dkt. #100-34). In contrast to the
exception, the general rule requires Plaintiff to follow the Transition Plan and Billing Schedule if
any delay not subject to the exception arises (Dkt. #100-34). In sum, Plaintiff cannot exceed the

3
This understanding of the term ‘ramp’ is consistent with dictionary definition of ‘ramp’ when used as a verb: “(1) to
speed up, expand, or increase especially quickly or at a constant rate” Dictionary, MERRIAM-WEBSTER,
https://www.merriam-webster.com/dictionary/ramp. As noted by the Merriam-Webster Dictionary, the use of ramp
as a verb is typically used in the context of ‘ramp up.’ Id. In the context of the Contract, ‘ramp’ and ‘ramp plan’
unambiguously reference ramping up the foreign FTEs and ramping down the U.S. based FTEs, pursuant to the
Transition Plan (See Dkt. #100-34).
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Billing Schedule’s billing limits unless one of two conditions is met: (1) the Parties agree to the
increase, or (2) an Excusable Delay arises (See Dkt. #100-34).
If Defendant’s reading were correct, the Excusable Delay exception would be rendered
meaningless. According to Defendant, the exception only permits Plaintiff to maintain the same
billing rate, but not the billing limit (Dkt. #101 at pp. 17–40; Dkt. #115 at pp. 11–27; Dkt. #122 at
pp. 6–11; Dkt. #128 at pp. 5–7). To Defendant, Section 8 of the Amendment prohibits any increase
in the billing limit, regardless of whether an Excusable Delay arises (Dkt. #101 at pp. 17–40;
Dkt. #100-34 at p. 5; Dkt. #115 at pp. 11–27; Dkt. #122 at pp. 6–11; Dkt. #128 at pp. 5–7). In other
words, Defendant’s reading result in the following situation: (1) Plaintiff can bill at the higher rate,
(2) Plaintiff must provide the same amount of work, (3) despite the higher rate, Plaintiff cannot
exceed the lower billing limit, so (4) Plaintiff will not be paid in excess of the billing limit for the
same amount of work at an approved amount (i.e., Plaintiff must provide free labor) unless
Defendant agrees to pay (See Dkt. #100-34; Dkt. #101 at pp. 17–40; Dkt. #115 at pp. 11–27;
Dkt. #122 at pp. 6–11; Dkt. #128 at pp. 5–7). Thus, on Defendant’s reading, the exception for
Excusable Delays is essentially meaningless because it requires Plaintiff to perform the agreed
amount of work at a higher billing rate but with a lower billing limit. In essence, the general rule
still applies—Plaintiff can only invoice at the amount according to the Transition Plan for any
delays that arise. As this reading renders the mutually agreed on exception meaningless, the Court
rejects it. Baylor Cnty. Special Util. Dist. v. City of Seymour, 709 S.W. 5, 13 (Tex. App—Eastland
2025, pet. filed) (citing Eagle Oil & Gas Co. v. TRO-X, L.P., 416 S.W.3d 137, 144 (Tex. App.—
Eastland 2013, pet. denied)); Coker, 650 S.W.2d at 393.
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This leads back to the current dispute: whether AT&T’s halt to the Transition Plan
constituted an Excusable Delay as contemplated by the Contract, or whether it was a revision of
the Transition Plan which required negotiations between Plaintiff, Defendant, and AT&T
(Dkt. #100-34; Dkt. #111-16) (“all parties mutually agree to negotiate a revision of the transition
plan and billing schedule in the event AT&T decides to staff a higher proportion of FTEs in the
Philippines location or any other global locations”). Plaintiff says it is an Excusable Delay, so it
should be permitted to recover under the Contract (See Dkt. #104; Dkt. #111). Defendant argues
that AT&T’s halt is a revision, thus Plaintiff breached the contract by failing to negotiate and
instead opting to unilaterally amend the Contract (See Dkt. #101; Dkt. #115). Ultimately, whether
AT&T’s halt to the Transition Plan constituted an Excusable Delay or a revision is a question for
the jury. Accordingly, the Court finds that it should grant Plaintiff’s Motion for Summary
Judgment and deny Defendant’s Motion for Summary Judgment as to the interpretation of the
Contract. The Court further finds that it should deny both Motions as they relate to liability for
breach of contract, whether an Excusable Delay or revision occurred, and the amount of damages
suffered, as those issues are replete with questions for the jury.
II. Sworn Account
Defendant argues that it is entitled to summary judgment on Plaintiff’s suit on sworn
account theory because Plaintiff’s breach of contract theory fails as a matter of law (Dkt. #101 at
pp. 40–41). Plaintiff responds that it, not Defendant, is entitled to summary judgment because
Defendant failed to file a verified denial to Plaintiff’s suit on a sworn account (Dkt. #104 at
pp. 23–26; Dkt. #111 at pp. 37–42). Without a verified denial, Plaintiff argues that Texas law
prohibits Defendant from contesting the amount it owes Plaintiff (Dkt. #104 at pp. 23–26;
Dkt. #111 at pp. 37–42). Defendant responds by arguing that the requirement for a verified denial
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is a Texas procedural rule, which is not required in federal courts under the Erie doctrine (Dkt #128
at pp. 7–11). The Court has already found that neither party is entitled to summary judgment on
their breach of contract theories. Accordingly, Defendant is not entitled to summary judgment on
Plaintiff’s suit on a sworn account claim, as its arguments are wholly premised on the success on
its motion for summary judgment as to the breach of contract claim (See Dkt. #101 at pp. 40–41).
The Court agrees with Defendant that Plaintiff is not entitled to summary judgment on its
suit on sworn account claim. A suit on a sworn account is governed by Texas Rule of Civil
Procedure 185, which, in part, requires a defendant to file a verified denial. Under Erie, a federal
court will apply federal procedural rules. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938); Sunshine
Traders of El Paso, Inc. v. Dolgencorp, Inc., 219 F. App’x 375, 376–77 (5th Cir. 2007). Thus, when a
suit on a sworn account is brought in federal district court, a verified denial is not required. See
Sunshine Traders, 219 F. App’x at 376–77; see also Sneed Shipbuilding, Inc. v. Spanier Marine Corp.,
125 F.R.D. 438, 443–44 (E.D. Tex. 1989) (finding that a verified denial is not required for a suit on
sworn account in federal court and noting that the “Texas Supreme Court has characterized Rule
185 as a procedural rule . . . not a rule of substantive law.”); Cinco J., Inc. v. Pressure Trucks, Inc.,
No. SA-15-CV-214-XR, 2015 WL 1957108, at *2–4 (W.D. Tex. Apr. 29, 2015). Thus, Defendant
was not required to file a sworn denial. Additionally, a suit on a sworn account requires that the
charges are just, which means that they were charged in accordance with an agreement. See, e.g.,
Coim USA Inc. v. Sjobrand Inc., 663 F. Supp. 3d 684, 689 (N.D. Tex. 2023). Defendant challenges
whether the disputed charges were made in accordance with the Contract. Accordingly, there is a
genuine issue of material fact—i.e., whether Defendant must pay those amounts under the
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Contract at all—and summary judgment is inappropriate at this time. Thus, the Court finds that it
should deny the Motions as to Plaintiff’s suit on sworn account claim.
III. Plaintiff’s Quasi-Contract Claims
Defendant argues that it is entitled to summary judgment on all of Plaintiff’s quasi-contract
claims because a valid and enforceable contract governs the dispute (Dkt. #101). Plaintiff does not
dispute Defendant’s entitlement to summary judgment on its promissory estoppel and money had
and received claims (See Dkt. #111; Dkt. #124). However, Plaintiff argues that it can maintain its
quantum meruit and unjust enrichment claims because a plaintiff can proceed with a breach of
contract and quantum meruit claim when a contract has been partially performed (Dkt. #111 at
pp. 38–39). According to Plaintiff, the same is true for its unjust enrichment claim (Dkt. #111 at
pp. 38–39). Defendant counters that Plaintiff misstates the law because partial performance only
permits the advancement of a quasi-contract claim with a breach of contract in one of two
circumstances: (1) when a plaintiff partially performed an express contract but was prevented from
completing the contract because of the defendant’s breach, and (2) when a plaintiff partially
performs an express contract that is unilateral in nature (Dkt. #122 at p. 13) (citing In re KP Eng’g,
L.P., 63 F.4th 452, 456–57 n.2 (5th Cir. 2023) (citing Pepi Corp. v. Galliford, 354 S.W.3d 457, 462–63
(Tex. App.—Houston [1st Dist.] 2007, pet. denied)). Defendant argues that neither of those
conditions are met and it is entitled to summary judgment on the quantum meruit and unjust
enrichment claims (Dkt. #122 at p. 13). The Court agrees with Defendant.
A party may recover under quasi contract theories only when no express contract covering
the services or materials furnished exists. See, e.g., Birchler v. JPMorgan Chase Bank, No. 4:14-CV-
81, 2015 WL 1939438, at *6 (E.D. Tex. Apr. 29, 2015) (citing First Union Nat’l Bank v. Richmont
Cap. Partners I, L.P., 168 S.W.3d 917, 931 (Tex. App.—Dallas 2005, no pet.)) (“Generally speaking,
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when a valid, express contract covers the subject matter of the parties’ dispute, there can be no
recovery under a quasi-contract theory . . . because the parties should be bound by their express
agreements.”); Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988). However, the existence of an
express contract does not preclude recovery for services rendered and accepted which are not
covered by the contract. See, e.g., Black Lake Pipe Line Co. v. Union Const. Co., Inc., 358 S.W.2d 80,
86 (Tex. 1976), overruled on other grounds by Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989).
Here, the question is whether the exception for Excusable Delays applies or whether the
general rule in Section 6.2 of the Amendment applies. Thus, the services rendered were covered
under the Contract. Even though Plaintiff argues that an exception for partial performance applies,
the Court finds these arguments unavailing (Dkt. #111 at pp. 38–39). This dispute falls squarely
within the bounds of the Contract and the Court finds that none of the exceptions Plaintiff argued
for apply to this case. See In re KP Eng’g, 63 F.4th at 456–57. Accordingly, as the disputed services
are expressly covered by the Contract, no genuine issue of material fact exists and the Court finds
that it should grant Defendant summary judgment on Plaintiff’s quasi-contract claims of quantum
meruit, unjust enrichment, promissory estoppel, and money had and received. See Birchler, 2015
WL 1939438, at *6; First Union Nat’l Bank, 168 S.W.3d at 931).
IV. Defendant’s Counterclaims
Plaintiff argues that Defendant’s counterclaims for breach of contract and fraudulent
misrepresentation should be dismissed because it has not established it suffered any damages
(Dkt. #104; Dkt. #123). According to Plaintiff, Defendant has only submitted evidence that it
incurred legal fees and expenses, which are unrecoverable as compensatory damages (Dkt. #104 at
pp. 32–36). Further, it argues that Defendant has not given any concrete amount that calculates the
alleged loss of time damages it claims it suffered (Dkt. #104 at pp. 32–36). Defendant argues that it
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has presented evidence of damages in three different areas: (1) the costs to negotiate with Plaintiff
on the Contract that it did not intend to honor; (2) the costs when it attempted to bring Plaintiff
into compliance with the Contract; and (3) the costs to repair its relationship with AT&T
(Dkt. #115 at pp. 30–35). In sum, Defendant seeks to recover damages for the loss of time that it
could otherwise have spent on valuable business enterprises (Dkt. #115 at pp. 30–35). Defendant
concedes it cannot recover litigation expenses as actual damages, but it maintains that it can recoup
its loss of time expenses from Plaintiff (See Dkt. #115 at pp. 30–31). Notably, Defendant does not
provide evidence of the explicit amount of damages it seeks to recover (See Dkt. #115).
Plaintiff’s Reply focuses on its entitlement to summary judgment on two grounds. First, it
argues that Defendant did not provide any evidence of the amount of damages, and thus there is
no genuine issue of fact regarding the damages Defendant suffered (Dkt. #123 at pp. 9–10). Second,
it returns to its argument that Defendants claimed damages are unrecoverable because they are
litigation expenses (Dkt. #123 at pp. 9–10). Defendant responds in its Sur-Reply that it adequately
presented its claims for damages and attaches evidence of those amounts (Dkt. #128 at pp. 11–13).
In response to Defendant’s Sur-Reply, Plaintiff filed a Motion to Strike the Sur-Reply and
any evidence of damages that was not presented in Defendant’s Response (Dkt. #133). Plaintiff
argues that Defendant waived its ability to present evidence in a Sur-Reply because it was not
attached to its Response, thus the Court should not consider it (Dkt. #133). Defendant argues that
it attached the evidence to respond to the arguments raised in Plaintiff’s Reply (Dkt. #138).
Further, it argues that courts in the Fifth Circuit permit such evidence to be attached in a Sur-Reply
(Dkt. #138). Plaintiff argues that Defendant’s response is inapposite and the Court should adopt
the position it did when it adopted Judge Nowak’s Report and Recommendation in a different case
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striking new summary judgment evidence attached to a Sur-Reply (Dkt. #140) (citing Deutsche
Bank Nat’l Tr. Co. as Tr. of Aames Mortg. Inv. Tr. 2005-1 v. Mortberg, No. 4:14-CV-000875-ALM-
CAN, 2020 WL 7658065, at *7 (E.D. Tex. Nov. 16, 2020), report and recommendation adopted, No.
4:19-CV-875, 2021 WL 716750 (E.D. Tex. Feb. 24, 2021)). The Court agrees with Defendant that
the evidence it submitted was responsive to Plaintiff’s Reply, in compliance with Local Rule CV-
7(f ). Accordingly, the Court finds it should deny Plaintiff’s Motion to Strike. See, e.g., Bongalis-
Royer v. RJ Worldwide, LLC, 2015 WL 12837652, at *2 (E.D. Tex. July 16, 2015) (“simply because
Plaintiff could have offered evidence for one purpose in the Opposition does not mean that Plaintiff
is barred from offering it for a proper purpose in the surreply.”).
The Court will now address the merits of Plaintiff’s Motion for Summary Judgment as to
Defendant’s breach of contract and fraudulent misrepresentation counterclaims. After a careful
review of the record and the arguments presented, the Court is not convinced that Plaintiff has met
its burden of demonstrating that there is no material issue of fact as it relates to Defendant’s claims
for damages that would entitle Plaintiff to judgment as a matter of law. Accordingly, the Court finds
that Plaintiff is not entitled to summary judgment on Defendant’s breach of contract and fraudulent
misrepresentation claims.
Plaintiff also argues that it is entitled to summary judgment on Defendant’s promissory
estoppel claim (Dkt. #104 at pp. 36–37). Defendant concedes that Plaintiff is entitled to summary
judgment on this claim because the Contract is valid and enforceable (Dkt. #115 at p. 7 n.2).
Accordingly, the Court finds that it should grant Plaintiff summary judgment on Defendant’s
promissory estoppel claim.
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CONCLUSION
It is therefore ORDERED that Defendant Tech Mahindra (Americas) Inc.’s Motion for
Partial Summary Judgment (Dkt. #101) is hereby GRANTED in part and DENIED in part.
Defendant’s Motion is GRANTED with respect to Plaintiff’s claims for quantum meruit, unjust
enrichment, promissory estoppel, and money had and received. Those claims are hereby
DISMISSED with prejudice. Defendant’s Motion for Summary Judgment is DENIED as to all
other issues raised.
It is further ORDERED that Plaintiff Alorica Inc.’s Motion for Summary Judgment
(Dkt. #104) is hereby GRANTED in part and DENIED in part. Plaintiff’s Motion is
GRANTED with respect to the interpretation of the Contract. Plaintiff’s motion is also
GRANTED with respect to Defendant’s claim for promissory estoppel, and it is hereby
DISMISSED with prejudice. Plaintiff’s Motion is DENIED as to all other issues raised.
It is further ORDERED that Plaintiff Alorica Inc.’s Motion to Strike Portions of Defendant
Tech Mahindra (Americas) Inc.’s Sur-Reply in Further Opposition to Alorica’s Motion for
Summary Judgment (Dkt. #133) is hereby DENIED.
IT IS SO ORDERED.
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