United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Defendants Barco, Inc.
and Barco, N.V. (collectively, Barco)'s Motion for
Reconsideration [#219], Plaintiff Richard Belliveau's
Response [#228] in opposition, and Barco's Reply [#231]
in support, as well as Barco's Unopposed Motion for Entry
of Judgment Under Rule 54(b) [#241]. Having considered the
documents, the governing law, and the case file as a whole,
the Court now enters the following opinion and orders.
Belliveau, an inventor, cofounded High End Systems, Inc.
(High End) in 1987. Sealed Resp. Mot. Summ. J. [#148-2]
Belliveau Decl. at l. High End is a lighting company that
specializes in producing complex lighting and projection
systems. Id. From 1987 to 1998 and from 2004 to
2017, Belliveau was employed by High End. Id. at
1-4. During the years Belliveau was not employed by High End,
he worked independently as an inventor and secured a number
of patents related to lighting and projection systems.
Id. at 1. Belliveau is the sole owner of these
Belliveau returned to High End in 2004 to serve as the
company's Chief Technology Officer (CTO), Belliveau and
High End entered into a contract granting High End an
exclusive license to use the IP that Belliveau developed
during his time away from the company. Id. [#148-4]
Ex. A (Exclusive License and Option Agreement). In exchange
for this exclusive license, High End agreed to pay royalties
to Belliveau and to use commercially reasonable efforts to
commercialize Belliveau's IP. Exclusive License and
Option Agreement at 3-10; see also Resp. Mot. Summ.
J. [#147] at 11. Following the execution of this license
agreement, High End was acquired by Barco. Belliveau Decl.
January 2017, Barco began to explore a possible sale of High
End to another company, Electronic Theatre Controls, Inc.
(ETC). As due diligence progressed, Barco repeatedly
consulted Belliveau to determine whether the proposed
transaction might affect intellectual property related to
Barco's products. Sealed Resp. Mot. Summ. J. [#148-40]
Ex. 36 (Koester Dep.) at 4-5; id. [#148-21] Ex. 16
(Due Diligence Emails) at 2-3; id. [#148-22] Ex. 17
(Braet Dep.) at 4; see also Resp. Mot. Summ. J.
[#147] at 9 (describing Belliveau assistance during due
diligence process). Though Belliveau was generally
cooperative in answering these inquiries, he "started to
sense that Barco was withholding information." Resp.
Mot. Summ. J. [#147] at 9.
February 16, 2017, Belliveau met with ETC and was informed
that he would not be continuing on as CTO. Resp. Mot. Summ.
J. [#147] at 10. In response, Belliveau tendered his
resignation. Sealed Resp. Mot. Summ. J. [#148-32] Ex. 27
(Resignation Email) at 2. Belliveau alleges that Barco
"knew that [ETC] planned to tell Belliveau that ETC was
going to fire him as CTO." Id. Less than a week
later, Belliveau filed suit against High End, alleging High
End had breached the Exclusive License and Option Agreement
by "refusing to engage in [a] mandatory mediation
procedure" necessary to investigate infringement of
Belliveau's IP by an unnamed third party-presumably,
Barco. Notice Removal [#1-1] Ex. A (Pet.) at 8.
after Belliveau filed suit against High End-and in reliance
on a prior suggestion made by Belliveau himself-Barco and High
End entered into an agreement granting Barco a sublicense to
use Belliveau's IP. Resp. Mot. Summ. J. [#147] at 11;
Sealed Resp. Mot. Summ. J. [#148-35] Ex. 30 (Sublicense
Agreement) at 1. Scott Brown, a Barco-appointed High End
officer who also served as an officer and director of Barco,
signed the Sublicense Agreement on behalf of High End.
Sublicense Agreement at 10; Resp. Mot. Summ. J. [#147] at 11.
Belliveau alleges no in-house lawyers or outside counsel
represented High End's interest in the negotiations.
Resp. Mot. Summ. J. [#147] at 11. Barco did, however, have to
negotiate with ETC's in-house counsel regarding the terms
of the Sublicense Agreement, Sealed Reply Mot. Summ. J.
[#153-4] Ex. 3 (Verheggen Dep.) at 5-9, and it is unclear why
Belliveau believes the buyer of High End was unmotivated to
protect the interests of the company it was purchasing.
event, despite ETC's involvement in the negotiations,
Belliveau contends Barco used its control over High End to
cause High End to grant the sublicense to Barco less than a
week before Barco sold High End to ETC in March 2017. Resp.
Mot. Summ. J. [#147] at 10-11. Belliveau further contends
that by granting this sublicense, High End breached its
obligation under the Exclusive License and Option Agreement
to use commercially reasonable efforts to commercialize
Belliveau's IP. Id.
initially filing suit against High End in state court,
Belliveau amended his complaint to add Barco as a defendant
and dismissed all claims against High End. Notice Removal
[#1-8] Ex. H (Fourth Am. Pet.) at 1; id. [#1-9] Ex.
I (PL's Mot. Dismiss) at 2. In the wake of this
amendment, Barco removed this action to federal court on the
basis of diversity jurisdiction under 28 U.S.C. § 1332.
Id. [#1] at 4-6. After several subsequent amendments
to his complaint, Belliveau eventually alleged Barco is
liable for High End's supposed breach of the Exclusive
License and Option Agreement between Belliveau and High End.
Sixth Am. Compl. [#103] at 20. Belliveau also asserted claims
against Barco for breach of fiduciary duty, fraud by
misrepresentation and nondisclosure, constructive fraud, and
unjust enrichment. Id. at 22-35.
2018, Barco moved for summary judgment on all of
Belliveau's claims. Mot. Summ. J. [#122]. In January
2019, the Court granted summary judgment in favor of Barco on
Belliveau's breach of contract, fraud by
misrepresentation, and unjust enrichment claims. Order of
Jan. 18, 2019 [#197] at 16. But the Court denied summary
judgment on Belliveau's breach of fiduciary duty, fraud
by nondisclosure, and constructive fraud claims, on the
ground that genuine issues of material fact existed as to
whether a fiduciary relationship existed between Belliveau
and Barco. Id. at 15-16. Belliveau later moved for
reconsideration of the Court's order granting summary
judgment to Barco on the breach of contract claim. Belliveau
Mot. Recons. [#221]. The Court denied the motion. Order of
Feb. 21, 2019 [#221] at 10-11.
Barco moves for reconsideration of the summary judgment order
to the extent that order denied summary judgment on the
breach of fiduciary duty, fraud by nondisclosure, and
constructive fraud claims. Barco Mot. Recons. [#219].
Meanwhile, Belliveau moves the Court to certify its partial
summary judgment on Belliveau's claims as a final
judgment under Rule 54(b) so that Belliveau can immediately
appeal the Court's ruling on his breach of contract claim
to the Fifth Circuit. Mot. Certify [#241]. Both pending
motions are ripe for review.
Motion for Reconsideration
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
the party moving for summary judgment has made an initial
showing that there is no evidence to support the opposing
party's case, the opposing party must come forward with
competent summary judgment evidence sufficient to establish a
genuine issue of material fact. Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). In ruling
on a motion for summary judgment, the court must view all
inferences drawn from the factual record in the light most
favorable to the nonmoving party. Matsushita, 475
U.S. at 586; Washburn, 504 F.3d at 508. But it is
not the court's duty to "sift through the record in
search of evidence" to support the nonmovant's
opposition to the motion for summary judgment. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). Rather, it is the nonmovant's duty to
identify specific evidence in the record and to articulate
the precise manner in which that evidence supports the
nonmovant's claim. Id.
mere conclusory allegations are not competent summary
judgment evidence and are insufficient to defeat a motion for
summary judgment. Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated
assertions, improbable inferences, and unsupported
speculation are likewise not competent summary judgment
evidence. Id. And, particularly relevant here, while
the court must not make credibility determinations or weigh
evidence, Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000); Anderson, 477 U.S. at
254-55, it is "well settled" in the Fifth Circuit
that "when the sole evidence purporting to create a
genuine issue of material fact ... is an affidavit that
conflicts with deposition testimony," the party seeking
to rely on the affidavit must provide a coherent explanation
for the conflict in order to avoid summary judgment.
Copeland v. Wasserstein, Perella & Co., 278 F.3d
472, 482 (5th Cir. 2002).
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment." Anderson, 477 U.S. at 248.
Disputed fact issues that are "irrelevant and
unnecessary" will not be considered by a court in ruling
on a summary judgment motion. Id. If the nonmoving
party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which it
will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.
54(b) allows parties to seek reconsideration of interlocutory
orders." Austin v. Kroger Tex., LP, 864 F.3d
326, 336 (5th Cir. 2017); see also FED. R. Civ. P.
54(b). "Under Rule 54(b), the trial court is free to
reconsider and reverse its decision for any reason it deems
sufficient, even in the absence of new evidence or an
intervening change in or clarification of the ...