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Thoroughbred Ventures, LLC v. Disman

United States District Court, E.D. Texas, Sherman Division

June 28, 2019

THOROUGHBRED VENTURES, LLC
v.
MICHAEL DEXTER DISMAN, CHRIS D'ADDARIO, NAOMI D'ADDARIO, and NM EXPLORATIONS, LLC

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Pending 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 part.

         BACKGROUND

         Thoroughbred 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 employee.

         Defendant used the laptop while engaged in Plaintiff's business, and the laptop allegedly contains Plaintiff's confidential information and trade secrets.

         Plaintiff 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 Plaintiff.

         Plaintiff 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.”).

         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 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. 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. 2007).

         ANALYSIS

         Plaintiff 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).

         I. Breach of Contract

         Reviewing 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 ...


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