United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Thoroughbred Ventures,
LLC's (“Thoroughbred”) Motion for Partial
Summary Judgment (Dkt. #87). Having reviewed the motion and
relevant pleadings, the Court finds the Motion for Partial
Summary Judgment should be granted in part and denied in
is an investment business that aggregates money from
investors to fund investments in oil and natural gas
production as well as real estate. In December 2015,
Plaintiff hired Defendant Michael Disman as a salesman in its
investment business. Defendant signed an Employment and
Confidentiality Agreement in 2014, and again signed
substantially similar agreements in 2015 and 2018
(collectively, “the Agreements”) with Plaintiff
in which he agreed to devote his exclusive and sole efforts
to Plaintiff's business and, if terminated, immediately
return all confidential information and trade secrets in his
possession to Plaintiff. In March 2015, Plaintiff promoted
Defendant to a “manager/partner.” During
Defendant's employment with Plaintiff, Trent
Davis-Thoroughbred's principal- personally purchased a
laptop computer for Defendant to use as a Thoroughbred
used the laptop while engaged in Plaintiff's business,
and the laptop allegedly contains Plaintiff's
confidential information and trade secrets.
claims that during Defendant's employment, without the
knowledge and consent of Plaintiff, Defendant solicited more
than $2.3 million from Plaintiff's investors for a
real-estate deal. Plaintiff alleges Defendant orchestrated
this deal with the help of Chris and Naomi D'Addario (the
“D'Addario Defendants”) and one or more of
Defendant's companies-including 547 Land Development. Due
to this conduct, Plaintiff terminated Defendant. However,
Defendant did not return the laptop containing
Plaintiff's confidential information and trade secrets to
filed this suit against Disman and the D'Addario
Defendants on April 30, 2018 (Dkt. #1). On June 28, 2018,
Plaintiff filed its Amended Complaint alleging, among others,
breach of contract and breach of fiduciary duty claims (Dkt.
#39). On February 4, 2019, Plaintiff filed the current Motion
for Partial Summary Judgment seeking summary judgment on its
breach of contract and fiduciary duty claims against
Defendant Michael Disman (Dkt. #87). A response to the motion
was due on February 25, 2019. See E.D. Tex. Civ. R.
7(e). Defendant Disman did not file a response to the motion.
Because Defendant did not file a response to the motion, the
Court presumes that Defendant does not controvert the facts
set out by Plaintiff and has no evidence to offer in
opposition to the motion. E.D. Tex. Civ. R. 7(d). (“A
party's failure to oppose a motion in the manner
prescribed herein creates a presumption that the party does
not controvert the facts set out by movant and has no
evidence to offer in opposition to the motion.”).
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 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.
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. 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
evidence but “refrain from making any credibility
determinations or weighing the evidence.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
alleges that there is no genuine issue of material fact to
dispute that Defendant breached the Employment and
Confidentiality Agreement and his fiduciary duties to
Plaintiff. Therefore, Plaintiff moves for partial summary
judgment on its breach of contract and breach of fiduciary
duty claims (Dkt. #87).
Breach of Contract
the pleadings and evidence provided, there is no genuine
issue of material fact regarding Plaintiffs breach of
contract claim. “In Texas, the elements of a claim for
breach of a contract are: (1) a valid contract between the
plaintiff and the defendant, (2) performance or tender of
performance by the plaintiff, (3) breach by the defendant,
and (4) damage to the plaintiff as a result of the
breach.” Garofolo v. Ocwen Loan Servicing
L.L.C.,669 Fed.Appx. 219, 220 (5th Cir. 2016) (quoting
Lawyers Title Ins. Corp. v. Doubletree Partners,
L.P.,739 F.3d 848, 858 (5th ...