Jia v. Boardwalk Fresh Burgers & Fries, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHUNHONG JIA, NAIHAN LI,

NAIRUO LI, SHULEI WANG,

LIZHONG YAO, WEIWEI ZHANG,

and CHONG ZHAO,

Plaintiffs,

v. Case No. 8:19-cv-2527-VMC-CPT

BOARDWALK FRESH BURGERS &

FRIES, INC., and DAVID

DIFERDINANDO,

Defendants and

Third-Party Plaintiffs,

v.

MIN WANG a/k/a LILI WANG,

YANNAN WANG, NEW CITY

ADVISORS, LLC, NEW CITY

CAPITAL, LLC, GARY CHAN,

ARCHWAY PARTNERS, LLC,

JARDIN HILL, LLC, and

CLEARWATER HOSPITALITY

GROUP, LLC,

Third-Party Defendants.

/

ORDER

This matter comes before the Court upon consideration of

Third-Party Defendants Min Wang a/k/a Lili Wang, Yannan Wang,

New City Advisors, LLC, and New City Capital, LLC’s

(collectively, the “New City Defendants’”) Motion for Summary

Judgment (Doc. # 170), Defendants and Third-Party Plaintiffs’

Boardwalk Fresh Burgers & Fries, Inc., and David

DiFerdinando’s (collectively, the “Boardwalk Defendants’”)

Motion for Summary Judgment (Doc. # 171), the New City

Defendants’ Motion for Determination of Choice of Law (Doc.

# 169), and the Boardwalk Defendants’ Memorandum of Law

Regarding Choice of Law Issues (Doc. # 172), all filed on

June 1, 2021. The parties have responded (Doc. ## 177; 183;

184) and replied to the applicable Motions. (Doc. ## 198;

199). For the reasons below, the Boardwalk Defendants’ Motion

is granted and the New City Defendants’ Motions are denied.

I. Background

Plaintiffs Chunhong Jia, Naihan Li, Nairuo Li, Shulei

Wang, Lizhong Yao, Weiwei Zhang, and Chong Zhao are Chinese

citizens who sought lawful residency status in the United

States through the EB-5 immigrant investor program. (Doc. #

117 at ¶ 1-3; Doc. # 201 at 17:24-18:6; Doc. # 202 at 9:21-

23, 11:9-10; Doc. # 203 at 9:1-3, 12:1-7; Doc. # 204 at 7:4-

5; Doc. # 205 at 7:18-19, 10:4-7; Doc. # 206 at 6:25-7:1,

8:5-12; Doc. # 207 at 7:1-4, 10:18-12:6; Doc. # 208 at 6:22-

24). Boardwalk Fresh is “a franchisor of fast casual

restaurants in the United States and worldwide.” (Doc. # 171

at ¶ 1; Doc. # 171-2 at ¶ 5). DiFerdinando is the president

and chief executive officer of Boardwalk Fresh. (Doc. # 171

at ¶ 1; Doc. # 171-2 at ¶ 3). In 2013, Boardwalk Fresh began

discussions with Terry, Gary, and Jacqueline Chan about

marketing their franchises to Chinese investors hoping to

participate in the EB-5 program. (Doc. # 171 at ¶ 2; Doc. #

213 at ¶ 2; Doc. # 171-2 at ¶ 7). Boardwalk Fresh “did not

have any prior experience with the EB-5 program,” and so the

Chans agreed to “handle the EB-5 aspects” of the venture.

(Doc. # 213 at ¶ 3; Doc. # 117-2 at ¶¶ 7-8). After these

discussions, Boardwalk Fresh and Jardin Hill, LLC – the Chans’

company – entered into a joint development agreement. (Doc.

# 200 at 34:7-35:5; Doc. # 170 at ¶ 6). According to

DiFerdinando, the agreement included the sale of the rights

to develop Boardwalk Fresh franchises in parts of Ohio and

Pennsylvania for $330,000. (Doc. # 200 at 34:11-35:1).

In November 2013, Boardwalk Fries Opportunities, LP, was

created. (Doc. # 171-4). BWF MGMT, LLC, which was also created

in November 2013, was the general partner of Boardwalk Fries

Opportunities. (Doc. # 117-6 at 29; Doc. # 171-6). Boardwalk

Fries, LLC, which was created in November 2015, was the

managing member of BWF MGMT. (Doc. # 117-6 at 29; Doc. # 117-

7). Archway Partners, LLC – one of the Chans’ companies – was

also a member of BWF MGMT. (Doc. # 117-5 at 29). The Boardwalk

Defendants contend that Gary Chan created all of these

entities, citing their corporate certificates filed with the

State of Ohio - which all include his name alone. (Doc. # 171

at — 9; Doc. # 117-4 at 2; Doc. # 117-6 at 2; Doc. # 117-7 at

2). According to DiFerdinando’s sworn declaration, neither he

nor Boardwalk Fresh had “any involvement in the creation or

management of [these entities],” “owned any interest in

[these entities],” or “held any position with [these

entities].” (Doc. # 171-2 at FI 14-18). Without a

contradictory citation, Plaintiffs deny that Gary Chan

created these entities. (Doc. # 213 at II 9-12). Plaintiffs

do cite to a Maryland entity also named Boardwalk Fries, LLC,

that appears to have existed as early as March 2013. (Doc. #

213 at Til; Doc. # 213-1). Plaintiffs provide no information

as to the members of the Maryland LLC. (Doc. ## 183; 210).

Boardwalk Fries Opportunities’ corporate structure was

memorialized in a business plan developed by the Chans:

5.1 Organizational Structure _ _

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y Boardwalk Fries sy

Ba Prorturities, LP. al

Sa

Job Creating Entities

een a “

a - —< ‘ - —_—

(Boardwalk =) { Boardwalk \ | oe RealCo =

A Fries4,11C □□ Fries, LLC fame UTES Reales oitngecry

a et ee

□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Owned Subsidiaries

of BWF Opportunities, L.P.

(Doc. # 117-6 at 29). This business plan, which also describes

the proposed venture, stipulated that “[t]welve EB-5

immigrant investors [would] invest a total of $6 million in

Boardwalk Fries Opportunities, . . . and become limited

partners in [the] new commercial enterprise.” (Id. at 8). BWF

MGMT, in turn, would contribute $3 million to the partnership.

(Id. at 6-7). The business plan further noted that the

partnership would endeavor to build ten restaurants in

Cincinnati and Dayton, Ohio. (Id. at 7). According to

DiFerdinando’s sworn declaration, neither he nor Boardwalk

Fresh “had any role in the creation of the [b]usiness [p]lan.”

(Doc. # 171-2 at ¶ 12). Still, in 2014, DiFerdinando signed

and had notarized an affidavit (“the Affidavit”) providing:

David DiFerdinando, in conjunction with, by and/or

through Boardwalk Fresh Burgers & Fries, Boardwalk

Fries, D’s Inc. or other affiliated companies and

partners, commit to contributing the sum of USD

Three Million ($3,000,000) to Boardwalk Fries

Opportunities, L.P. via BWF MGMT, LLC, its General

Partner.

(Doc. # 117-7 at 4). According to DiFerdinando, Boardwalk

Fresh never intended to contribute $3 million in cash, but

instead planned to “raise the $3 million through tenant

allowances [via] landlords.” (Doc. # 200 at 54:7-19).

In early 2014, the Chans contacted New City Advisors to

obtain assistance in attracting Chinese investors to their

venture. (Doc. # 171 at ¶ 17; Doc. # 213 at ¶ 17; Doc. # 171-

12). Thereafter, New City Advisors “recruit[ed] and

identif[ied] Chinese nationals interested in investing in the

Chans’ Boardwalk Fries Opportunities.” (Doc. # 171 at ¶ 23;

Doc. # 213 at ¶ 23; Doc. # 171-21). This led to each Plaintiff

investing $500,000 in Boardwalk Fries Opportunities. (Doc. ##

117-9; 117-10; 117-11; 117-12; 117-13; 117-14; 117-15).

Plaintiffs’ funds were sent to U.S. Bank escrow accounts.

(Doc. # 117 at ¶ 115).

Prior to their investments, “Plaintiffs communicated

exclusively with [New City Advisors] and its agents.” (Doc.

# 171 at ¶ 25; Doc. # 213 at ¶ 25). All information furnished

to Plaintiffs regarding the partnership was provided through

New City Advisors. (Doc. # 171 at ¶ 28; Doc. # 213 at ¶ 28;

Doc. # 171-2 at ¶¶ 19-22). Indeed, “Plaintiffs never

communicated [or met] with DiFerdinando.” (Doc. # 171 at ¶

26; Doc. # 213 at ¶ 26; Doc. # 202 at 14:22-15:2; Doc. # 203

at 23:2-3; Doc. # 204 at 11:4-7, 15:23-16:2; Doc. # 205 at

13:23-14:2; Doc. # 206 at 19:14-15; Doc. # 207 at 19:2-3;

Doc. # 208 at 15:2-7; Doc. # 171-2 at ¶ 19). Nor did Plaintiffs

ever communicate with any agent or employee of Boardwalk

Fresh, aside from Lizhong Yao who chatted with a staff member

of a Boardwalk Fresh restaurant while on a trip to Washington,

D.C., in 2014. (Doc. # 205 at 14:3-12; Doc. # 206 at 19:16-

18; Doc. # 207 at 19:4-9; Doc. # 208 at 15:8-13; Doc. # 171-

2 at ¶ 20). And, Plaintiffs did not recall ever seeing

DiFerdinando’s Affidavit prior to investing in Boardwalk

Fries Opportunities. (Doc. # 202 at 52:19-5; Doc. # 204 at

64:5-16; Doc. # 205 at 36:20-25; Doc. # 206 at 46:15-47:3;

Doc. # 207 at 23:19-24:4; Doc. # 208 at 48:24-49:6).

Following Plaintiffs’ investments in 2014, however, the

Boardwalk Fresh restaurants were not built in Ohio. (Doc. #

200 at 68:2-4; Doc. # 117-9 at 5; Doc. # 117-10 at 5; Doc. #

117-11 at 5; Doc. # 117-12 at 5; Doc. # 117-13 at 5; Doc. #

117-14 at 5; Doc. # 117-15 at 5). Instead, the focus shifted

to Florida after Terry Chan moved there from Ohio. (Doc. #

200 at 68:6-8, 75:1-7). By 2017, Plaintiffs were concerned

with the progress of the venture in Florida. (Doc. # 200 at

59:10-13; Doc. # 202 at 35:1-4). This concern came in part

from the restaurants not yet being open and how that would

impact their ability to obtain lawful permanent residency

through the EB-5 program. (Doc. # 204 at 12:7-15).

Then, in February 2018, Plaintiffs initiated a lawsuit

against Gary Chan, Terry Chan, Jacquelyn Chan, Boardwalk

Fries Opportunities, BWF MGMT, Boardwalk Fries, LLC, and

various other entities related to the Chans, in the Southern

District of Ohio. (Doc. # 171-9). Plaintiffs alleged that the

Chans misappropriated their investment funds, among other

torts. (Id. at ¶¶ 84-92). According to Plaintiffs, the

“misappropriation began on or about October 10, 2015, when

Gary Chan transferred $450,000 from each [Plaintiff’s] escrow

account to [Boardwalk Fries Opportunities’] GECU bank

account. The Chans later removed the remaining $50,000 in

each Plaintiffs’ escrow account and deposited those funds

into” Boardwalk Fries Opportunities’ accounts as well. (Doc.

# 184 at ¶ 18; Doc. # 171 at ¶ 38).

Sometime prior to these transfers, Boardwalk Fries

Opportunities and BWF MGMT signed a letter authorizing Gary

Chan to access the funds in escrow. (Doc. # 117-16).

DiFerdinando signed this document on behalf of both entities

as the “authorized signer.” (Id.). According to DiFerdinando,

he did not learn about this diversion until 2018. (Doc. #

171-2 at ¶¶ 23-24). Later in 2015, Gary Chan transferred

$330,000 to Boardwalk Fresh. (Doc. # 22-17 at 2-3).

Separately, in Ohio state court, Plaintiffs obtained a

default judgment in the amount of $3.5 million against BWF

MGMT on July 29, 2019. (Doc. # 171-28).

Plaintiffs initiated this action on October 11, 2019.

(Doc. # 1). Following a several motions to dismiss, on October

5, 2020, Plaintiffs filed the operative third amended

complaint. (Doc. # 117). The third amended complaint includes

the following claims against the Boardwalk Defendants: fraud

(Count I), breach of contract (Count II), breach of fiduciary

duty (Count III), negligence (Count IV), gross negligence

(Count V), conversion (Count VI), unjust enrichment/quantum

meruit (Count VII), conspiracy (Count VIII), federal

securities law violations (Count IX), aiding and abetting

fraud (Count X), aiding and abetting conversion (Count XI),

aiding and abetting breach of fiduciary duty (Count XII),

constructive fraud (Count XIII), aiding and abetting

constructive fraud (Count XIV), and negligent

misrepresentation (Count XV). (Id.). The Boardwalk Defendants

filed their answer to the third amended complaint on October

19, 2020. (Doc. # 188).

On August 6, 2020, the Boardwalk Defendants filed a

third-party complaint against the New City Defendants and

Third-Party Defendants Gary Chan, Archway Partners, LLC,

Jardin Hill, and Clearwater Hospitality Group, LLC

(collectively, the “Chan Defendants”). (Doc. # 73). The

third-party action is only being actively litigated by the

Boardwalk Defendants and New City Defendants. On September

22, 2021, the Clerk entered default against Archway Partners

and Clearwater Hospitality. (Doc. ## 113; 114). On November

16, 2020, the case was stayed as to Gary Chan pending his

bankruptcy proceedings. (Doc. # 126). And, the Boardwalk

Defendants voluntarily dismissed their claims against Jardin

Hill with prejudice on December 15, 2020. (Doc. ## 136; 137).

Following a number of motions to dismiss, on February

17, 2021, the Boardwalk Defendants filed a second amended

third-party complaint. (Doc. # 141). The New City Defendants

again moved to dismiss the second amended third-party

complaint, which the Court granted in part on April 22, 2021.

(Doc. ## 143; 159). Relevant here, the second amended third-

party complaint remains as to the claims for contribution

against: New City Advisors (Count I), New City Capital (Count

II), Lili Wang (Count III), and Yannan Wang (Count IV). (Doc.

# 141; Doc. # 159 at 20). On May 6, 2021, the New City

Defendants filed their answers to the second amended third-

party complaint. (Doc. # 163).

Now, both the Boardwalk Defendants and the New City

Defendants seek an entry of summary judgment in their favor.

(Doc. ## 170; 171). These parties also seek a determination

of which state’s law applies to the case. (Doc. ## 169; 172).

Both parties have responded (Doc. ## 177; 183; 184) and

replied. (Doc. ## 198; 199). The time to otherwise respond

has elapsed, and the Motions are ripe for review.

II. Legal Standard

Summary judgment is appropriate “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 factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the Court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the Court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

[conclusory] allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

The Court will begin by addressing the applicable law,

followed by the parties’ Motions for Summary Judgment.

A. Conflict of Laws

The Court previously determined that there is a conflict

as to the validity of the Boardwalk Defendants’ contribution

claims depending on whether Florida, Ohio, or Maryland law

applies. (Doc. # 159). Accordingly, the Court directed the

parties to brief the applicability of each law to the claims

in the underlying third amended complaint (Doc. # 156). In

their response, the Boardwalk Defendants explained that they

are seeking contribution solely on Plaintiffs’ tort claims.

(Doc. # 177 at 3). The New City Defendants argue that Florida

law applies to all of the underlying tort claims. (Doc. # 169

at 1-2). Meanwhile, the Boardwalk Defendants contend that

some of the underlying tort claims are governed by Ohio law,

while others are governed by Maryland law. (Doc. # 172 at 1).

“A federal district court sitting in diversity must

apply the choice of law rules of the forum state.” Jeffers v.

Kerzner Int’l Hotels Ltd., 319 F. Supp. 3d 1267, 1270 (S.D.

Fla. 2010). “As a preliminary matter, the court must

characterize the legal issue and determine whether it sounds

in torts, contracts, property law, etc. Once it has

characterized the legal issue, it determines the choice of

law rule that the forum state applies to that particular type

of issue.” Grupo Televisa, S.A. v. Telemundo Commc’ns Grp.,

Inc., 485 F.3d 1233, 1240 (11th Cir. 2007). “Under Florida

law, a court makes a separate choice of law determination

with respect to each particular issue under consideration.”

Trumpet Vine Invs., N.V. v. Union Cap. Partners I, Inc., 92

F.3d 1110, 1115 (11th Cir. 1996).

“In tort actions, federal courts sitting in diversity in

Florida employ Florida’s ‘most significant relationship’ test

to resolve conflicts of law.” Bell v. Miedema, --- F. Supp.

3d ----, 2021 WL 307355, at *2 (M.D. Fla. Jan. 29, 2021).

“The test involves consideration of four relevant factors:

(1) the place where the injury occurred; (2) the place where

the conduct causing the injury occurred; (3) the domicile,

residence, nationality, place of incorporation and place of

business of the parties; and (4) the place where the

relationship, if any, between the parties is centered.”

Jeffers, 319 F. Supp. 3d at 1270. “[T]he place of injury is

of particular importance in the case of personal injuries and

of injuries to tangible things.” Id. at 1271 (citation

omitted). But, “the place of injury is less significant in

the case of fraudulent misrepresentations.” Trumpet Vine, 92

F.3d at 1116 (citations omitted).

When the plaintiff relied on misrepresentations in a

forum other than where they were made, courts consider the

following additional factors: (1) “the place, or places,

where the plaintiff acted in reliance upon the defendant’s

representations,” (2) the place where the plaintiff received

the representations,” (3) “the place where the defendant made

the representations,” (4) “the domicile, residence,

nationality, place of incorporation and place of business []

of the parties,” (5) “the place where a tangible thing which

is the subject of the transaction between the parties was

situated at the time,” and (6) “the place where the plaintiff

is to render performance under a contract which he has been

induced to enter by the false representations of the

defendant.” Lacy v. BP, PLC, No. 11-Civ-21855, 2015 WL

3952593, at *1-2 (S.D. Fla. June 29, 2015) (citation omitted).

“The purpose of [this] test is not to find the sovereign

with the most contacts; rather, the analysis is done to

determine which jurisdiction has the most ‘significant’

contacts.” Valentino v. Bond, No. 3:06-cv-504-MCR, 2008 WL

3889603, at *6 (N.D. Fla. Aug. 19, 2008) (citing Judge v. Am.

Motors Corp., 908 F.2d 1565, 1569 (11th Cir. 1990)).

1. Counts I, X, and XV

First, the Court finds that Maryland has the most

significant relationship to Counts I, X, and XV – Plaintiffs’

claims for fraud, aiding and abetting fraud, and negligent

misrepresentation. There, Plaintiffs allege that the

Boardwalk Defendants misled them into investing in Boardwalk

Fries Opportunities – primarily through DiFerdinando’s

Affidavit. (Doc. # 117 at ¶¶ 144-58, 217-23, 245-50).

Considering the fraud-specific factors of the most

significant relationship test, the subscription agreements

were received and signed by Plaintiffs in various cities in

China. (Doc. # 117-9 at 5; Doc. # 117-10 at 5; Doc. # 117-11

at 5; Doc. # 117-12 at 5; Doc. # 117-13 at 5; Doc. # 117-14

at 5; Doc. # 117-15 at 5). The false representations were

made by the Boardwalk Defendants, who have their corporate

headquarters in Maryland. (Doc. # 117 at ¶¶ 4, 145, 218). The

purported fraudulent Affidavit sent by the Boardwalk

Defendants to Plaintiffs – which forms the basis of these

claims – was notarized in Howard County, Maryland. (Doc. #

117-7 at 4). The Boardwalk Defendants also allegedly provided

the Chans with the information to create the business plan

provided to Plaintiffs. (Doc. # 117 at ¶ 72). The business

plan repeatedly notes that Boardwalk Fresh is based in

Maryland. (Doc. # 117-7 at 5, 7, 31). Plaintiffs cite to no

specific statement that allegedly induced them to invest in

the franchises that was made by the Boardwalk Defendants

anywhere other than Maryland. (Doc. ## 169; 177; 172; 197).

Plaintiffs are Chinese citizens who – for the most part

– reside in China. (Doc. # 117 at ¶ 1). At least two of the

Plaintiffs “spend time” in Florida or have recently moved to

Florida on a temporary green card. (Doc. # 202 at 10:3-25;

Doc. # 203 at 9:18-11:25). DiFerdinando is a Florida citizen

domiciled in Florida. (Doc. # 117 at ¶ 5; Doc. # 200 at 10:4-

16). Boardwalk Fresh is a Delaware corporation with its

principal place of business in Maryland. (Doc. # 117 at ¶ 4).

The subject of the transaction was the development of

Boardwalk franchises in Ohio. (Doc. # 117 at ¶¶ 156, 219;

Doc. # 117-5 at 5; Doc. # 117-6 at 5). Although the

partnership’s objective later shifted to Florida restaurants,

and no Ohio restaurants were actually built, Plaintiffs were

allegedly induced into investing with the Boardwalk

Defendants for the purpose of building Ohio restaurants.

(Doc. # 117 at ¶ 161; Doc. # 200 at 68:2-8). And, this change

in focus to Florida did not occur until after the alleged

fraudulent inducement. (Doc. # 172 at 2). The agreements

signed by Plaintiffs provide for their subscription to an

Ohio partnership. (Doc. ## 117-9; 117-10; 117-11; 117-12;

117-13; 117-14; 117-15). Plaintiffs performed their

obligations under the subscription agreement – the payment of

$500,000 each – into individual escrow accounts at a bank in

Minnesota. (Doc. # 117 at ¶ 115; Doc. # 172 at 2). It is

unclear whether Plaintiffs were in the United States or China

when these funds were transferred to the escrow accounts.

Taken together, the Court finds that Maryland has the

most significant relationship to these fraud claims. See

Cluck-U Chicken, Inc. v. Cluck-U Corp., 358 F. Supp. 3d 1295,

1309 (M.D. Fla. 2017) (“Plaintiffs’ complaint and the record

evidence convince me that Plaintiffs’ case centers on

Defendants’ misrepresentations in the franchise disclosure

document, a document generated by Defendants’ corporate

office in Maryland. Defendants have no other franchisees in

Florida. Maryland is [the] hub of this dispute and has the

most significant relationship to Plaintiffs’ tort claims;

therefore, I will apply Maryland law to Plaintiffs’

fraudulent inducement claim[.]”). The false statements that

purportedly induced Plaintiffs to invest in the Boardwalk

franchises were made in Maryland. (Doc. # 117-7 at 4). None

of these parties are citizens of Ohio, or otherwise have

contacts with Ohio except for their plan to construct

restaurants there. (Doc. # 117 at ¶¶ 1-5, 161). The only

concrete contact with Florida when Plaintiffs were allegedly

induced to invest in the venture was DiFerdinando’s residence

therein. (Id. at ¶ 5). The Court does not find that

Plaintiffs’ recent temporary residence in Florida changes

this determination. (Doc. # 202 at 10:3-25; Doc. # 203 at

9:18-11:25). And, none of the parties argue that Chinese law

applies. (Doc. ## 169; 172). Accordingly, Maryland law

applies to Counts I, X, and XV. (Doc. # 172 at 3).

2. Counts III, IV, V, XII, XIII, XIV

Next, the Court finds that Ohio has the most significant

relationship to Counts III, IV, V, XII, XIII, and XIV –

Plaintiff’s claims for breach of fiduciary duty, negligence,

gross negligence, aiding and abetting breach of fiduciary

duty, constructive fraud, and aiding and abetting

constructive fraud. These claims are based on the Boardwalk

Defendants’ allegedly failing to properly manage or oversee

Boardwalk Fries Opportunities, allowing the conversion of

Plaintiffs’ funds, failing to open any restaurants, failing

to contribute $3 million in cash to the partnership, and

breaching various duties arising out of the partnership.

(Doc. # 117 at ¶¶ 171-78).

The alleged injuries occurred in various places,

including Ohio – where the Boardwalk Defendants failed to

open restaurants – and Florida, where the parties also planned

to open restaurants. (Doc. # 172 at 7; Doc. # 200 at 35:2-5;

68:2-8; Doc. # 184 at ¶ 18). Plaintiffs’ funds were also

allegedly unlawfully transferred to an Ohio partnership’s

bank account. (Doc. # 117 at ¶¶ 133-34). It is unclear

precisely where the conduct causing the injury occurred. The

Boardwalk Defendants’ corporate activities would have arisen

out of Maryland, but the parties do not fully brief this

point. (Doc. ## 169; 172). As noted, Plaintiffs are Chinese

citizens who by and large reside in China. (Doc. # 117 at ¶

1). At least two of the Plaintiffs “spend time” in Florida or

have recently moved to Florida on a temporary green card.

(Doc. # 202 at 10:3-25; Doc. # 203 at 9:18-11:25).

DiFerdinando is domiciled in Florida. (Doc. # 117 at ¶ 5;

Doc. # 200 at 10:4-16). Boardwalk Fresh is a Delaware

corporation with its principal place of business in Maryland.

(Doc. # 117 at ¶ 4).

Importantly, however, the parties’ relationship is

centered in Ohio because the partnership giving rise to the

Boardwalk Defendants’ purported duties is an Ohio partnership

and Ohio is where the restaurants were initially set out to

be built. (Doc. # 117 at ¶¶ 38, 120; Doc. # 117-5). Taken

together, the Court finds that Ohio law applies to Counts

III, IV, V, XII, XIII, and XIV. See Calixto v. Watson Bowman

Acme Corp., 637 F. Supp. 2d 1064, 1066-68 (S.D. Fla. 2009)

(finding that New York law applied to the tort claims because

that is where the parties’ relationship was centered and where

the plaintiff’s injuries occurred).

3. Counts VI and XI

Similarly, the Court finds that Ohio has the most

significant relationship to Counts VI and XI – Plaintiff’s

claims for conversion and aiding and abetting conversion. See

Lacy, 2015 3952593, at *2 (“The ‘most significant

relationship’ test also applies to . . . conversion claims.”).

The funds at issue were transferred into an Ohio partnership’s

bank account. (Doc. # 117 at ¶¶ 133-34). There is no

allegation that the funds were transferred into a Florida

account, and indeed, Plaintiffs’ allegations fail to show

that this conversion has any connection to Florida except for

some of the parties’ domiciles. (Doc. # 117). Additionally,

these conversions occurred prior to the construction of

Boardwalk Franchises shifting from Ohio to Florida. (Doc. #

184 at ¶¶ 15, 18). Thus, Ohio law applies to Counts VI and

XI. See Reliastar Life Ins. Co. v. Kiel, No. 3:08-cv-751-MMH-

MCR, 2010 WL 11507705, at *2 (M.D. Fla. July 29, 2010) (“While

Plaintiff is a Minnesota corporation and the injury might be

felt wherever else it is located, it was conducting business

in [Ohio] at the time of the incident, the relationship

between the parties centered in [Ohio], and the conduct

causing the alleged injury occurred within the State.”).

4. Count VIII

Lastly, the Court finds that Ohio has the most

significant relationship to Count VIII – Plaintiffs’ civil

conspiracy claim. This claim is based on a conspiracy between

the two Boardwalk Defendants, as well as a conspiracy between

the Boardwalk Defendants and the Chan Defendants. (Doc. # 117

at ¶¶ 200-201). Plaintiffs allege that the co-conspirators

“fraudulently misrepresent[ed] material facts to Plaintiffs,”

violated fiduciary duties, and committed fraud and various

other torts. (Id.).

As previously mentioned, the injuries arising from these

various torts occurred in either China, Florida, or Ohio. The

conduct allegedly causing the injury occurred in Maryland and

Ohio. (Doc. # 117 at ¶¶ 133-34, 140; Doc. # 117-1). Maryland

is where the Boardwalk Defendants are located as a corporate

entity, and it is also where the Affidavit that allegedly

induced Plaintiffs to invest in Boardwalk Fries Opportunities

was created and signed. (Doc. # 117 at ¶¶ 1-5; Doc. # 117-7

at 4). The Boardwalk Defendants are domiciled in Maryland and

Florida, while Plaintiffs are in large part domiciled in

China. (Doc. # 117 at ¶¶ 1, 4-5). The parties’ relationship

– if any – was centered in Ohio and Florida at various times,

depending on where the franchises were set on being built.

(Id. at ¶¶ 120-21, 161). The partnership at issue is an Ohio

partnership. (Doc. # 117-5). Most of the claims underlying

this derivative claim are governed by Ohio law. Taken

together, the Court finds that Ohio law applies to Count VIII.

See Eli Rsch., LLC v. Must Have Info Inc., No. 2:13-cv-695-

SPC-CM, 2014 WL 4540110, at *3-4 (M.D. Fla. Sept. 11, 2014)

(finding that North Carolina law applied to a civil conspiracy

claim because that is where the business at issue was

conducted and where the parties’ relationship was centered).

In sum, the Court finds that Maryland law applies to

Counts I, X, and XV, while Ohio law applies to Counts III,

IV, V, VI, VIII, XI, XII, XIII, and XIV. Therefore, the New

City Defendants’ Motion for Determination of Choice of Law –

which sought the application of Florida law to all underlying

claims – is denied. (Doc. # 169 at 5-8).

B. Summary Judgment

Both the Boardwalk Defendants and the New City

Defendants have moved for an entry of summary judgment in

their favor. (Doc. ## 170; 171). The Court will begin by

addressing the Boardwalk Defendants’ Motion.

1. The Boardwalk Defendants’ Motion

In their Motion, the Boardwalk Defendants seek summary

judgment on all fifteen counts of the third amended complaint.

(Doc. # 171 at 1). The Court will address each claim in turn.

a. Counts I and XV

First, the Boardwalk Defendants argue that they are

entitled to summary judgment on Counts I and XV – Plaintiffs’

claims for fraud and negligent misrepresentation – because:

(1) the Boardwalk Defendants “never communicated with

Plaintiffs,” (2) “Plaintiffs never saw and/or could not

understand the documents underlying their claims,” (3)

“Plaintiffs relied exclusively on [New City Advisors],” (4)

“there is no evidence of any intent to defraud Plaintiffs,”

and (5) “the alleged misrepresentations did not cause

Plaintiffs’ injuries.” (Doc. # 171 at 14).

To establish a claim for fraud under Maryland law, the

plaintiff must prove that: (1) “the defendant made a false

representation to the plaintiff,” (2) “its falsity was either

known to the defendant or that the representation was made

with reckless indifference as to its truth,” (3) “the

misrepresentation was made for the purpose of defrauding the

plaintiff,” (4) “the plaintiff relied on the

misrepresentation and had the right to rely on it,” and (5)

“the plaintiff suffered compensable injury resulting from the

misrepresentation.” Crystal v. Midatlantic Cardiovascular

Assocs., P.A., 133 A.3d 1198, 1204 (Md. Ct. Spec. App. 2016).

“A ‘false representation’ is a statement, conduct, or action

that intentionally misrepresents a material fact.” Sass v.

Andrew, 832 A.2d 247, 260 (Md. Ct. Spec. App. 2003). “A

‘material’ fact is one on which a reasonable person would

rely in making a decision.” Id. The defendant must “know[]

that his representation is false, or [must be] recklessly

indifferent in the sense that he knows that he lacks knowledge

as to its truth or falsity.” Ellerin v. Fairfax Sav., F.S.B.,

652 A.2d 1117, 1125 (Md. 1995)

“Similarly, on a claim for negligent misrepresentation,

the plaintiff must prove that: (1) the defendant, owing a

duty of care to the plaintiff, negligently assert[ed] a false

statement; (2) the defendant intend[ed] that his statement

[would] be acted upon by the plaintiff; (3) the defendant

ha[d] knowledge that the plaintiff [would] probably rely on

the statement, which, if erroneous, [would] cause loss or

injury; (4) the plaintiff, justifiably, [took] action in

reliance on the statement; and (5) the plaintiff suffer[ed]

damage proximately caused by the defendant’s negligence.”

Goldstein v. Miles, 859 A.2d 313, 332 (Md. Ct. Spec. App.

2004) (citation omitted). The “critical difference” between

these two torts is that “fraud is an intentional tort

requiring the defendant to know that his or her representation

is false,” while negligent misrepresentation “only requires

conduct which falls below the standard of care the maker of

the statement owes to the person to whom it is made.” Gross

v. Sussex Inc., 630 A.2d 1156, 1162 (Md. 1993).

Here, Counts I and XV allege: “Defendants supplied an

affidavit to Plaintiffs that . . . represented that Defendants

would contribute [$3 million],” “Plaintiffs received and

reviewed this affidavit before investing in [Boardwalk Fries

Opportunities], and relied on the representations made in the

affidavit.” (Doc. # 117 at ¶¶ 145-47, 247-9). Indeed,

Plaintiffs concede that Counts I and XV are based on the

Affidavit. (Doc. # 184 at 10-11 (“Plaintiffs’ fraud [and]

negligent misrepresentation . . . claims are based upon the

Affidavit that DiFerdinando executed under oath[.]”)).

However, the Boardwalk Defendants contend they never

communicated with Plaintiffs and that Plaintiffs had not seen

the Affidavit prior to investing in Boardwalk Fries

Opportunities. (Doc. # 171 at 15). True, at their depositions,

Chunhong Jia, Naihan Li, Shulei Wang, Lizhong Wang, Weiwei

Zhang, and Chong Zhao, admitted they had no recollection of

ever seeing the Affidavit. (Doc. # 202 at 52:19-5; Doc. # 204

at 64:5-16; Doc. # 205 at 36:20-25; Doc. # 206 at 46:15-47:3;

Doc. # 207 at 23:19-24:4; Doc. # 208 at 48:24-49:6). Only

Nairuo Li stated he may have seen it, although for the first

time approximately four years after making his investment.

(Doc. # 203 at 60:10-61:5; Doc. # 22-12 at 5).

Instead of direct communications between Plaintiffs and

the Boardwalk Defendants, Plaintiffs rely in part on the

following testimony by Third-Party Defendant Lili Wang, the

co-founder of New City Advisors:

A. . . . [W]hen investors were told that their money

was not going to be the only money in the project,

they said, do you have any proof to that effect?

They didn’t say, I want to see this exact affidavit.

They wanted proof that David DiFerdinando was going

to put up the $3 million.

* * *

Q. Which investors did you send this to?

A. All of them.

* * *

Q. Do you know whether your -- whether the investors

actually reviewed this?

A. I can’t speculate to that.

* * *

A. I know that every investor would not have

invested into this project but for the fact that

there was an additional equity commitment from

David DiFerdinando.

Q. But you don’t know whether they reviewed this

affidavit or not?

A. I don’t know that they reviewed this specific

affidavit. They asked for proof, and it was

provided, and they were satisfied afterwards. So

logic follows, but I was not in the room when they

looked at this document.

(Doc. # 201 at 15:14-18, 113:6-115:16). Even assuming that it

is true that Lili Wang provided translated copies of the

Affidavit to Plaintiffs, she herself stated that she does not

know whether Plaintiffs looked at the Affidavit. (Id. at

115:12-13). Further, any testimony by Lili Wang that “logic

follows” that Plaintiffs reviewed the Affidavit is mere

speculation. (Doc. # 201 at 115:14). And, Plaintiffs cite to

no evidence in the record showing that they otherwise read

the Affidavit, or a translation thereof. (Doc. # 184).

Although some Plaintiffs testified they were aware of

the promised $3 million investment from other sources, Counts

I and XV are based on the Affidavit. (Id. at 10-11). Nairuo

Li testified: “I was also told that David DiFerdinando

promised to invest his $3 million into the project.” (Doc. #

203 at 66:21-23). When asked who told him that, he responded:

“It was indicated in the document you showed me earlier. Also,

[New City Advisors], that is represented by Xiao Yan Zhou,

also told us so. . . . I saw this document in the year 2018,

but I was told this in 2014.” (Id. at 67:9-18). Lizhong Yao

testified [he] obtained this information from a brochure, not

the Affidavit. (Doc. # 205 at 38:9-12 (“According to what the

brochure says, the [limited partners] -- that’s us, the

investors -- we invest 6 million and BWF invest 3 million.”)).

Therefore, Plaintiffs have not only failed to offer

proof that the Affidavit was provided to them directly by the

Boardwalk Defendants, but they also fail to show reasonable

reliance thereon. See Gourdine v. Crews, 955 A.2d 769, 791

(Md. 2008) (“Clearly, in order to sustain a cause of action

based on fraud or deceit, the defendant must have made a false

representation to the person defrauded.”). Indeed, there is

no citation to the record showing Plaintiffs read or reviewed

the Affidavit prior to investing in Boardwalk Fries

Opportunities, such that they could reasonably rely on it.

Because the Affidavit forms the sole basis of

Plaintiffs’ claims for fraud and negligent misrepresentation,

the Motion is granted as to Counts I and XV. See Sass, 832

A.2d at 267 (“Under the facts attendant here, we conclude

that it was unreasonable for the jury to determine that

appellee relied on Sass’s express or implied representations

as to the identity of the contractor. . . . [A]ppellee

conceded that she never looked at the Contract until after

Sass and Mell left her home.”).

b. Count IX

On a similar basis, the Boardwalk Defendants also move

for summary judgment in their favor on Count IX – Shulei Wang

and Lizhong Yao’s claim for federal securities law

violations. (Doc. # 171 at 19). The Boardwalk Defendants posit

that “Plaintiffs cannot establish a misrepresentation by [the

Boardwalk Defendants], their reliance thereon, scienter, or

causation.” (Id.).

Under Section 10(b) of the Securities Exchange Act of

1934, it is “unlawful for any person, directly or indirectly

. . . [t]o use or employ, in connection with the purchase or

sale of any security . . . any manipulative or deceptive

device or contrivance in contravention of such rules and

regulations as the [Securities Exchange Commission (“SEC”)]

may prescribe.” 18 U.S.C. § 78j(b) (2020). In implementing

Section 10(b), the SEC promulgated Rule 10b-5. 17 C.F.R. §

240.10b-5. To establish a claim for securities fraud under

Rule 10b-5, the plaintiff must prove: (1) “a misstatement or

omission,” (2) “of material fact,” (3) “made with scienter,”

(4) “on which plaintiff relied,” (5) “that proximately caused

injury.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1281

(11th Cir. 1999); accord Ottmann v. Hanger Orthopedic Grp.,

Inc., 353 F.3d 338, 342 (4th Cir. 2003).

Here, like Plaintiffs’ other fraud claims, Count IX is

based on the Affidavit. (Doc. # 117 at ¶ 205-15). Because

Plaintiffs have failed to show any proof of reliance on the

Affidavit, this claim also fails. See Ledford v. Peeples, 657

F.3d 1222, 1258 (11th Cir. 2011) (affirming the dismissal of

a Rule 10b-5 claim because the plaintiffs failed to show

reliance). Thus, the Motion is granted as to Count IX.

c. Count II

Next, the Boardwalk Defendants move for summary judgment

on Count II – Plaintiffs’ breach of contract claim. (Doc. #

171 at 21). The Boardwalk Defendants argue that neither of

them were “party to the Partnership Agreement on which Count

II is based.” (Id.).

In Count II, Plaintiffs allege that the Boardwalk

Defendants breached the Boardwalk Fries Opportunities

partnership agreement. (Doc. # 117 at ¶ 164). The agreement

includes the following choice of law clause:

12.9 Governing Law. The laws of the State of Ohio

shall govern the validity of this Agreement, the

construction of its terms and the interpretation of

the rights and duties of the Partners.

(Doc. # 117-5 at 29). None of the parties argue that this

provision is inapplicable or against public policy. (Doc. ##

170; 171). Accordingly, Ohio law governs the agreement.

Under Ohio law, to establish a claim for breach of

contract, the plaintiff must prove: (1) “the existence of a

contract,” (2) “performed by the plaintiff,” (3) “breach by

the defendant,” and (4) “damages or loss to the plaintiff.”

Jarupan v. Hanna, 878 N.E.2d 66, 73 (Ohio Ct. App. 2007)

(citation omitted). “[T]hose not a party to a contract cannot

be held liable for a breach of contract.” Ingle-Barr, Inc. v.

E. Local Sch. Dist. Bd., Nos. 10-CA-808, 10-CA-809, 2011 WL

441314, at *2 (Ohio. Ct. App. Jan. 27, 2011).

Here, neither of the Boardwalk Defendants were parties

to the partnership agreement. (Doc. # 117-5 at 5). Instead,

BWF MGMT – of which Boardwalk Fries, LLC, and Archway Partners

were members – was a party to the agreement, along with the

limited partner investors. (Id. at 30). Boardwalk Fries, LLC,

was created by Gary Chan. (Doc. # 117-3 at 5). According to

the third amended complaint, Boardwalk Fresh is a member of

Boardwalk Fries, LLC. (Doc. # 117 at ¶ 4). However,

DiFerdinando testified at his deposition, that he was not

aware of Boardwalk Fries, LLC, prior to the instant lawsuit.

(Doc. # 200 at 111:7-14).

To the extent Plaintiffs seek to pierce the veil and

hold either of the Boardwalk Defendants accountable for BWF

MGMT’s breach of contract, they cite to no record evidence

warranting such action. (Doc. # 184 at 18-19). Under Ohio

law, “[t]he corporate form may be disregarded and individual

shareholders held liable for corporate misdeeds when (1)

control over the corporation by those to be held liable was

so complete that the corporation has no separate mind, will,

or existence of its own, (2) control over the corporation by

those to be held liable was exercised in such a manner as to

commit fraud or an illegal act against the person seeking to

disregard the corporate entity, and (3) injury or unjust loss

resulted to the plaintiff from such control and wrong.”

Belvedere Condo. Unit Owners’ Ass’n. v. R.E. Roark Cos., 617

N.E.2d 1075, 1086 (Ohio 1993). “[T]o fulfill the second prong

of the Belvedere test for piercing the corporate veil, the

plaintiff must demonstrate that the defendant shareholder

exercised control over the corporation in such a manner as to

commit fraud, an illegal act, or a similarly unlawful act.”

Dombroski v. WellPoint, Inc., 895 N.E.2d 538, 545 (Ohio 2008).

Courts should pierce the veil “only in instances of extreme

shareholder misconduct.” Id.

In their response, Plaintiffs aver that “there is ample

evidence to demonstrate that genuine issues of material fact

exist to pierce the veil and get to Defendants.” (Doc. # 184

at 18-19). But, Plaintiffs bear the burden of demonstrating

that piercing the corporate veil is warranted, and they cite

to no record evidence supporting any of the requirements to

pierce the corporate veil. (Id.); see Corrigan v. U.S. Steel

Corp., 478 F.3d 718, 724 (6th Cir. 2007) (“The burden of proof

to demonstrate grounds for piercing the corporate veil is on

the party seeking to impose liability on the parent

corporation.” (citing LeRoux’s Billyle Supper Club v. Ma, 602

N.E.2d 685, 689 (Ohio Ct. App. 1991))). The Court need not

scour through the vast record in this case to find evidence

supporting Plaintiffs’ argument. See Sartori v. Schrodt, 424

F. Supp. 3d 1121, 1123 (N.D. Fla. 2019) (“These assertions

[by the plaintiff in opposition to summary judgment] are

unaccompanied by citations to the record, and lack support

therein. Of course, mere unsupported representations of

counsel do not constitute evidence that may be considered on

summary judgment.” (citation omitted)).

In any case, “Ohio law permits one corporation to own

all of the stock of another corporation and employ common

officers and directors, as well as other personnel without

risking shareholder liability.” Meinert Plumbing v. Warner

Indus., Inc., 90 N.E.3d 966, 977 (Ohio Ct. App. 2017).

Boardwalk Fries, LLC, is not the only member of BWF MGMT –

indeed, Archway Partners is also a member. (Doc. # 117-5 at

5). And, to the extent the fraud underlying Plaintiffs’

argument for piercing the corporate veil is predicated on

their fraud claims contained in Counts I, IX, and XV, those

claims have been resolved in the Boardwalk Defendants’ favor.

(Doc. # 184 at 18-19 (“Defendants have committed fraud as set

forth earlier in this memorandum.”)).

Because the Boardwalk Defendants were not parties to the

partnership agreement, and Plaintiffs have failed to meet

their burden to pierce the corporate veil, the Motion is

granted as to Count II. See G. Lieu, Inc. v. E. Constr. &

Remodeling, LLC, No. 16-AP-771, 2018 WL 332998, at *6 (Ohio

Ct. App. Jan. 9, 2018) (“Our review shows that appellant cites

the three-prong test for piercing the corporate veil but

offers no evidence, i.e., affidavits, deposition testimony,

or documents, in support of its argument that there is a

genuine issue in this regard. . . . Simply put, nothing was

offered for the trial court to construe most strongly in

appellant’s favor.”); see also Ingle-Barr, 2011 WL 441314, at

*2 (“In the absence of evidence to show that Eastern is a

party to the contracts, Ingle–Barr has no cause of action

against it and the trial court correctly entered summary

judgment in Eastern’s favor.”).

d. Counts III and XIII

Next, the Boardwalk Defendants move for summary judgment

on Counts III and XIII – Plaintiffs’ claims for breach of

fiduciary duty and constructive fraud. (Doc. # 171 at 23).

The Boardwalk Defendants maintain that these claims “are

premised exclusively on their Partnership Agreements with

Boardwalk Fries Opportunities” and neither of the Boardwalk

Defendants “was a partner, agent, or officer of Boardwalk

Fries Opportunities.” (Id.).

To establish a claim for breach of fiduciary duty under

Ohio law, the Plaintiff must prove: “(1) the existence of a

duty arising from a fiduciary relationship, (2) the failure

to observe the duty, and (3) an injury resulting proximately

therefrom.” Puhl v. U.S. Bank, N.A., 34 N.E.3d 530, 536 (Ohio

Ct. App. 2015). “A ‘fiduciary relationship’ is one in which

special confidence and trust is reposed in the integrity and

fidelity of another and there is a resulting position of

superiority or influence, acquired by virtue of this special

trust.” State v. Massien, 926 N.E.2d 1282, 1290 (Ohio 2010)

(citations omitted). “A fiduciary relationship may be created

either formally, by contract, or informally. . . . An informal

relationship, however, cannot be unilateral, and occurs only

where ‘both parties understand that a special relationship or

trust has been reposed.’” Adorno v. Delgado, No. 04-CA-

008436, 2004 WL 2348158, at *2 (Ohio Ct. App. Oct. 20, 2004)

(citations omitted).

The elements of a constructive fraud claim “are very

similar to . . . a breach of fiduciary duty claim.” Saxe v.

Dlusky, No. 09-AP-673, 2010 WL 4324198, at *11 (Ohio Ct. App.

Nov. 2, 2010). “[A] constructive fraud claim [] require[s]

the existence of some peculiar confidential relationship

between the parties which affords the power and means to one

to take undue advantage of or exercise under influence over

another.” Ohio Bureau of Workers’ Comp. v. MDL Active Duration

Fund, Ltd., 476 F. Supp. 2d 809, 823 (S.D. Ohio 2007).

Here, the third amended complaint alleges that the

Boardwalk Defendants’ fiduciary duty to Plaintiffs arises out

of the partnership agreement. (Doc. # 117 at ¶ 169 (“This

fiduciary relationship is confirmed by the Partnership

Agreement, which granted the general partner ‘the sole and

exclusive right and responsibility to manage the business’ of

BWF OPP.”)). In response to the Motion, Plaintiffs expand on

the basis of this alleged fiduciary duty:

[The Boardwalk Defendants] owe Plaintiffs fiduciary

duties because, among other things, DiFerdinando

signed the [partnership agreement] as BWF OPP’s

general partner in his personal capacity and/or as

an agent, officer, or employee of [Boardwalk

Fresh]. . . . This fiduciary duty is further

supported by the fact that Boardwalk Fries LLC, the

entity DiFerdinando purportedly signed this

agreement on behalf of, did not exist as a matter

of law at the time this agreement was signed.

(Doc. # 184 at 20).

Although it is true that “[p]artners in a partnership

owe each other a heightened fiduciary duty to act in good

faith and refrain from self dealing,” the Boardwalk

Defendants are not parties to the partnership agreement.

Kirila v. Kirila Contractors, Inc., No. 2015-T-0108, 2016 WL

4426409, at *5 (Ohio Ct. App. Aug. 22, 2016); (Doc. # 117-5

at 30). Rather, BWF MGMT, LLC, signed the partnership

agreement through its members Boardwalk Fries, LLC, and

Archway Partners. (Id.). DiFerdinando signed the agreement on

behalf of Boardwalk Fries, LLC, and Gary Chan signed it on

behalf of Archway Partners. (Id.). Contrary to Plaintiffs’

contention, they cite to no evidence that David DiFerdinando

signed this agreement in his personal capacity, or that

Boardwalk Fresh is in anyway bound by the agreement. (Id.).

And, even if Boardwalk Fries, LLC, “did not exist” when the

partnership agreement was signed, Plaintiffs provide no

authority for why the Boardwalk Defendants should be liable

for BWF MGMT’s conduct. (Doc. # 184 at 20).

Furthermore, in their depositions, Plaintiffs admitted

they had never spoken to the Boardwalk Defendants, and so it

is unclear what sort of relationship – let alone a special

relationship of trust or confidence – existed between them.

(Doc. # 171 at ¶ 26; Doc. # 202 at 14:22-15:5; Doc. # 204 at

11:4-5, 15:23-16:2; Doc. # 205 at 13:23-14:12; Doc. # 206 at

19:14-18; Doc. # 207 at 19:2-9; Doc. # 188-1 at 15:5-13).

Because neither of the Boardwalk Defendants were parties

to the partnership agreement, nor have Plaintiffs shown that

they otherwise owed a duty to Plaintiffs, the Motion is

granted as to Counts III and XIII. See Adorno, 2004 WL

2348158, at *3 (“Further, Appellant has failed to present the

court with any evidence tending to show that Appellee intended

to create a fiduciary relationship with Appellant in this

matter. Accordingly, the trial court properly granted summary

judgment to Appellee on Appellant’s breach of fiduciary duty

claim.”); D & H Autobath v. PJCS Props. I, Inc., 983 N.E.2d

891, 901 (Ohio Ct. App. 2012) (granting summary judgment in

favor of the defendant on claims for breach of fiduciary duty

and constructive fraud because “no genuine issues of material

fact remain[ed] as to whether a fiduciary relationship

existed between [the parties]”).

e. Counts XI, XII, and XIV

Next, the Boardwalk Defendants move for summary judgment

on Counts XI, XII, and XIV – Plaintiffs’ claims for aiding

and abetting conversion, aiding and abetting breach of

fiduciary duty, and aiding and abetting constructive fraud.

(Doc. # 171 at 25-27). The Boardwalk Defendants argue that

“Plaintiffs’ aiding and abetting theories fail as a matter of

Ohio law.” (Id. at 25).

The Court agrees. Claims for aiding and abetting

tortious conduct are not cognizable under Ohio law. See In re

Nat’l Century Fin. Enters., Inc. Inv. Litig., 905 F. Supp. 2d

814, 833-34 (S.D. Ohio 2012) (“[I]t is clear now that a claim

. . . for aiding and abetting tortious conduct is not

cognizable under Ohio law.”), aff’d sub nom. Pharos Cap.

Partners, L.P. v. Deloitte & Touche, 535 F. App’x 522 (6th

Cir. 2013). The Court has already determined that Ohio law

applies to Plaintiffs’ claims for aiding and abetting

conversion, aiding and abetting breach of fiduciary duty, and

aiding and abetting constructive fraud. Therefore, Counts XI,

XII, and XIV fail as a matter of Ohio law, and the Motion is

granted as to these claims. See Peter D. Brown Tr. v. Shriver,

No. 1:17-cv-280, 2018 WL 776365, at *1-2 (S.D. Ohio Feb. 8,

2018) (dismissing the plaintiff’s claim for aiding and

abetting breach of fiduciary duty because it failed as a

matter of Ohio law); see also Parlin Fund LLC v. Citibank

N.A., No. 1:13-CV-111, 2013 WL 3934997, at *8 (S.D. Ohio July

30, 2013) (“Plaintiffs’ claims of aiding and abetting fraud

and conversion fail as a matter of law.”).

f. Count X

Next, the Boardwalk Defendants move for summary judgment

on Count X – Plaintiffs’ claim for aiding and abetting fraud.

(Doc. # 171 at 20). The Boardwalk Defendants argue that

“Plaintiffs cannot show that [the Boardwalk Defendants] knew

about the Chans’ plan to take Plaintiffs’ funds or that

Defendants were somehow ‘in on’ the Chans’ scheme.” (Id.).

Unlike Ohio law, “Maryland has expressly recognized

aider and abettor tort liability.” Alleco, Inc. v. Harry &

Jeanette Weinberg Found., Inc., 665 A.2d 1038, 1049 (Md.

1995). To establish a claim for aiding and abetting fraud,

the plaintiff move prove that: “(1) there is a violation of

the law (tort) by the principal[,] (2) [the] defendant knew

about the violation, and (3) [the] defendant gave substantial

assistance or encouragement to the principal to engage in the

tortious conduct.” Legacy Inv. & Mgmt., LLC v. Susquehanna

Bank, No. WDQ-12-2877, 2014 WL 824066, at *4 (D. Md. Feb. 28,

2014) (citation omitted).

Here, Count X is based on the Boardwalk Defendants

providing allegedly false information to the Chans that was

in turn provided to Plaintiffs to induce them into investing

in Boardwalk Fries Opportunities. (Doc. # 117 at ¶¶ 218-22).

The Court finds that Plaintiffs have cited to no evidence in

the record showing that the Boardwalk Defendants knew that

the information they provided was false or that they knew the

Chans intended to remove Plaintiffs’ funds from escrow for

their own benefit. (Doc. # 184). Further, in the third amended

complaint, plaintiffs allege that “Defendants knew that the

materials described in paragraph 181 were false and

misleading.” (Doc. # 117 at ¶ 218). However, paragraph 181,

which is contained within Count V, does not list any of these

materials. (Id. at ¶ 181 (stating only: “Plaintiffs restate

Paragraphs 1 through 143 as if fully written)).

To the extent Count X is based on the Affidavit,

Plaintiffs have failed to demonstrate reliance thereon. Nor

have Plaintiffs cited to evidence showing that the Affidavit

was provided to the Chans by the Boardwalk Defendants. (Doc.

# 184). Accordingly, Plaintiffs’ aiding and abetting fraud

claim fails, and the Motion is granted as to Count X.

g. Counts IV and V

Next, the Boardwalk Defendants move for summary judgment

on Counts IV and V – Plaintiffs’ claims for negligence and

gross negligence. (Doc. # 171 at 26). The Boardwalk Defendants

posit that these claims “are based on the statutory standard

of care that a general partner owes to a limited partnership,”

but “neither DiFerdinando nor [Boardwalk Fresh] was the

general partner of Boardwalk Fries Opportunities.” (Id.).

And, as to the gross negligence claim, “Plaintiffs have failed

to adduce any evidence that [the Boardwalk Defendants] knew

or had reason to know that the Chans planned to steal

Plaintiffs’ funds.” (Id.).

To establish a claim for negligence under Ohio law, the

plaintiff must prove: “(1) that the defendant owed the

plaintiff a duty, (2) that the defendant breached that duty,

and (3) the breach of the duty proximately caused the

plaintiff’s injury.” Vanderbilt v. Pier 27, LLC, 2 N.E.3d

966, 970 (Ohio Ct. App. 2013). “The existence of a duty is

fundamental to establishing actionable negligence, without

which there is no legal liability.” Winkle v. Zettler Funeral

Homes, Inc., 912 N.E.2d 151, 162 (Ohio Ct. App. 2009)

(internal quotation marks and citation omitted). “The

determination of whether a duty exists is a question of law

for the court to decide.” Id.

“[G]ross negligence is defined in terms of wanton or

reckless conduct.” Mohat v. Horvath, No. 2013-L-009, 2013 WL

5450296, at *4 (Ohio Ct. App. Sept. 30, 2013). “‘Wanton’

misconduct is the failure to exercise any care whatsoever.”

Vidovic v. Hoynes, 29 N.E.3d 338, 348 (Ohio Ct. App. 2015).

“‘Recklessness’ includes a ‘perverse disregard of a known

risk where the actor is conscious that his conduct will

probably result in injury.’” Id. (citation omitted).

Here, Plaintiffs allege the following basis for the duty

of care owed to them by the Boardwalk Defendants:

Defendants owed Plaintiffs a duty of care to

properly manage BWF OPP and their investment funds

consistent with the Partnership Agreement, EB-5

rules and regulations, and the representations made

to Plaintiffs as described above. . . . This

standard of care of a general partner in a limited

partnership is detailed in Ohio and Florida laws.

General partners accordingly owe limited partners

duties of, among other things, loyalty and care.

(Doc. # 117 at ¶¶ 176-77). Thus, the alleged duty derives

primarily from the Boardwalk Defendants’ being parties to the

partnership agreement. (Id.).

Plaintiffs are correct that general partners owe a duty

of care to a limited partnership under Ohio law. See Ohio

Rev. Code § 1782.241 (“A general partner shall perform the

duties of a general partner in good faith, in a manner the

general partner reasonably believes to be in or not opposed

to the best interests of the limited partnership, and with

the care that an ordinarily prudent person in a like position

would use under similar circumstances.”). But, as previously

explained, neither of the Boardwalk Defendants are or were

general partners of Boardwalk Fries Opportunities. (Doc. #

117-5 at 5). And, the Chan Defendants – not the Boardwalk

Defendants – were responsible for the EB-5 aspect of the

venture. (Doc. # 213 at ¶ 3; Doc. # 117-2 at ¶¶ 7-8).

Because Plaintiffs have cited to no other record

evidence for the duty owed to them by the Boardwalk

Defendants, their negligence claims fail as a matter of law.

See Smrtka v. Boote, 88 N.E.3d 465, 471 (Ohio Ct. App. 2017)

(affirming the trial court’s grant of summary judgment in the

defendant’s favor on a negligence claim because the defendant

owed no duty to the plaintiff); see also Winkle, 912 N.E.2d

at 162 (“In the absence of any duty, appellants’ gross-

negligence claim must fail as a matter of law.”). Accordingly,

the Motion is granted as to Counts IV and V.

h. Count VI

Next, the Boardwalk Defendants move for summary judgment

in their favor on Count VI – Plaintiffs’ conversion claim.

(Doc. # 171 at 27). The Boardwalk Defendants argue that

“Plaintiffs are unable to establish that [they] ever

possessed or controlled Plaintiffs’ property – or that [they]

had any knowledge of the Chans’ scheme.” (Id.).

To establish a conversion claim under Ohio law, the

plaintiff must prove: “(1) [the] plaintiff’s ownership or

right to possess the property at the time of the conversion;

(2) [the] defendant’s conversion by a wrongful act or

disposition of [the plaintiff’s] property; and (3) damages.”

Calvey v. Stifel, Nicolaus & Co., 850 F. App’x 344, 350 (6th

Cir. 2021) (quoting Kuvedina, LLC v. Cognizant Tech. Sols.,

946 F. Supp. 2d 749, 761 (S.D. Ohio 2013)). “Money may be

converted when it is identifiable and there is an obligation

to return the specific money in question.” Kiss v. Dodge, No.

E-98-027, 1998 WL 904920, at *3 (Ohio Ct. App. Dec. 31, 1998)

(citing Schutt v. Bates, 169 N.E. 314, 314 (Ohio Ct. App.

1929)). “[T]he plaintiff must establish that the funds were

‘earmarked,’ that is, that the defendant had an obligation to

deliver a specific corpus of money capable of identification

and not merely that the defendant had an obligation to pay a

certain sum as a general debt.” RAE Assocs., Inc. v. Nexus

Commc’ns, Inc., 36 N.E.3d 757, 765-66 (Ohio Ct. App. 2015);

see also Macula v. Lawyers Title Ins. Corp., No. 1:07-CV-

1545, 2008 WL 3874686, at *5 (N.D. Ohio Aug. 14, 2008)

(“Conversion of money occurs only when the money is

specifically earmarked, or capable of identification such as

‘money in a bag, coins or notes that have been entrusted to

the defendant’s care, or funds that have otherwise been

sequestered.’” (citation omitted)).

Here, the property allegedly converted are Plaintiffs’

investment funds. (Doc. # 117 at ¶ 190). Plaintiffs allege

that the Boardwalk Defendants “knowingly caused Plaintiffs’

funds to be removed from escrow and transferred Plaintiffs’

funds directly to themselves for their own benefit, and have

knowingly allowed their agents and co-conspirators, the

Chans, to use [the] funds for purposes unrelated to [Boardwalk

Fries Opportunities’] business purpose.” (Id. at ¶ 191).

However, Plaintiffs cite to no evidence in the record

demonstrating that the Boardwalk Defendants ever possessed

any of Plaintiffs’ specifically identifiable funds. In

response to the Motion, Plaintiffs state: “DiFerdinando on

behalf of BWF OPP and BWF MGMT signed written authorization

to allow Gary Chan access to Plaintiffs’ funds. Thus,

DiFerdinando individually or on behalf of [Boardwalk Fresh]

controlled the disbursement of escrow funds – otherwise his

written authorization would be unnecessary.” (Doc. # 184 at

22). It is true that Boardwalk Fries Opportunities and BWF

MGMT, as general partner thereof, signed a letter authorizing

Gary Chan to access funds in the escrow account. (Doc. # 117-

16). But, even though DiFerdinando signed this as an

authorized signer for both companies, there is no evidence

that he signed this document in his personal capacity. (Id.).

And, even with this authorization, Plaintiffs have

proffered no proof the Boardwalk Defendants ever obtained any

of Plaintiffs’ identifiable funds. Rather, the facts of the

case indicate only that Gary Chan gained access to Plaintiffs’

investment funds. (Doc. # 184 at ¶ 18). To the extent

Plaintiffs seek to state a claim for the Boardwalk Defendants

aiding and abetting Gary Chan’s conversion of their funds,

the Court has already determined that no such action can lie

under Ohio law. See Parlin Fund, 2013 WL 3934997, at *8

(holding that the plaintiff’s claim for aiding and abetting

conversion fail as a matter of Ohio law). And, insofar as

Plaintiffs contend that the Boardwalk Defendants later

received “at least $330,000 of Plaintiffs’ misappropriated

investment funds” from the Chans, they provide no proof from

which the Court can glean that these funds are their

investment funds. (Doc. # 117 at ¶ 138). Plaintiffs offer

only Boardwalk Fresh’s bank statement, which displays a

$330,000 wire from Jardin Hill, but, again, provide no other

evidence showing that these funds are in any way related to

their investment funds. (Doc. # 117-17 at 3). Nor have

Plaintiffs cited to any record evidence showing that the

Boardwalk Defendants knew about Chan’s alleged conversion.

Because Plaintiffs have offered no record evidence that

the Boardwalk Defendants possessed their specifically

identifiable monies such that there was an obligation to

return the specific money in question, their conversion claim

fails. See Kuvedina, 946 F. Supp. 2d at 761 (“An action for

conversion requires that a defendant have an obligation to

deliver specific money, not merely a certain sum of money”).

Accordingly, the Motion is granted as to Count VI. See Hillier

v. Fifth Third Bank, 154 N.E.3d 1266, 1281 (Ohio Ct. App.

2020) (“We do agree that summary judgment on this point was

properly granted to Judith, as she was not the party

wrongfully disposing of the assets.”); see also Vienna Beauty

Prods. Co. v. Cook, 53 N.E.3d 808, 813-14 (Ohio Ct. App. 2015)

(“[W]e reject Vienna’s suggestion that Mr. Cook is liable for

conversion simply because he ‘benefitted’ from Mrs. Cook’s

theft of the checks. . . . [W]hether he ‘benefitted’ from his

wife’s misconduct is ‘irrelevant’ to Vienna’s conversion

claim. This is particularly true in the absence of evidence

that he even knew about her theft of the checks. . . . Finally,

we are unpersuaded by Vienna’s claim that Mr. Cook is

personally liable for conversion based on his status as the

sole owner of ACER, his incorporated construction company.”

(citations and footnote omitted)).

i. Count VII

Next, the Boardwalk Defendants move for summary judgment

on Count VII – Plaintiffs’ unjust enrichment/quantum meruit

claim. (Doc. # 171 at 28). The Boardwalk Defendants maintain

that “there is no evidence that Plaintiffs conferred any

benefit on [them]” and “[t]o the extent that Plaintiffs []

argue that the funds paid by Jardin Hill to [Boardwalk Fresh]

. . . could have originated from Plaintiffs’ investments, .

. . Defendants’ lack . . . knowledge about the purported

benefit.” (Id. at 29 (emphasis omitted)). The Boardwalk

Defendants also argue that Plaintiffs “cannot show anything

unjust or inequitable about [Boardwalk Fresh’s] retention of

funds from Jardin Hill pursuant to their arms’ length . . .

agreement.” (Id.).

“A claim for unjust enrichment sounds in quasi-contract,

not tort.” ThunderWave, Inc. v. Carnival Corp., 954 F. Supp.

1562, 1566 (S.D. Fla. 1997). Because Count VII is based on

Plaintiffs’ investment in Boardwalk Fries Opportunities –

subject to the partnership agreement – Ohio law governs this

claim. See Bayuk v. Prisiajniouk, No. 8:18-cv-163-SPF, 2019

WL 4694230, at *4 (M.D. Fla. Sept. 26, 2019) (applying

Delaware law to an unjust enrichment claim by virtue of the

relevant contract’s choice of law clause); (Doc. # 117-5 at

29 (including a choice of law clause selecting Ohio law)).

To establish a claim for unjust enrichment under Ohio

law, the plaintiff must prove: (1) “a benefit conferred by a

plaintiff upon the defendant,” (2) “knowledge by the

defendant of the benefit,” and (3) “retention of the benefit

by the defendant under circumstances where it would be unjust

to do so without payment.”1 Clifton v. Johnson, No. 15-CA-30,

2016 WL 7231124, at *4 (Ohio Ct. App. Dec. 6, 2016) (citation

omitted). “The plaintiff must confer the benefit as a response

to fraud, misrepresentation, or bad faith on behalf of the

defendant.” Schlaegel v. Howell, 42 N.E.3d 771, 782 (Ohio Ct.

App. 2015) (citation omitted). A claim for quantum meruit

“contains the same elements as required for recovery under

unjust enrichment.” Hartley v. Dayton Comput. Supply, 106 F.

Supp. 2d 976, 984 (S.D. Ohio 1999) (citation omitted).

Here, Plaintiffs’ claim for unjust enrichment is based

on the $3.5 million in funds transferred by Gary Chan to

Boardwalk Fries Opportunities. (Doc. # 117 at ¶ 196). However,

like the conversion claim, Plaintiffs have offered no record

evidence that this money was ever transferred to or retained

1. The same elements must be proven under Maryland law. See

Smith v. Alacrity Servs., LLC, 778 F. Supp. 2d 606, 610 (D.

Md. 2011) (listing the requirements under Maryland law).

by the Boardwalk Defendants. Rather, the facts as alleged by

Plaintiffs indicate that the investment funds were sent to

Boardwalk Fries Opportunities’ escrow account and then taken

by Gary Chan. (Doc. # 184 at ¶¶ 12, 18). To the extent

Plaintiffs claim the $330,000 transferred from Jardin Hill to

Boardwalk Fresh includes such funds, they provide no proof

thereof. (Doc. # 184). Nor do they cite to any record evidence

demonstrating that Boardwalk Fresh had knowledge that this

constituted Plaintiffs’ investment funds. (Id.); see (Doc. #

117-4 at 145:21-146:1 (“I don’t know whether it’s [Gary

Chan’s] money or the investors’ money.”)). Thus, Plaintiffs’

unjust enrichment claim fails, and the Motion is granted as

to Count VII. See Tel. Mgmt. Corp. v. Goodyear Tire & Rubber

Co., 32 F. Supp. 2d 960, 972 (N.D. Ohio 1998) (“Plaintiff TMC

fails to show facts sufficient to support its claim of unjust

enrichment. . . . [N]o material evidence shows that TMC

conferred any benefit upon Goodyear.”).

j. Count VIII

Lastly, the Boardwalk Defendants move for summary

judgment in their favor on Count VIII – Plaintiffs’ civil

conspiracy claim, arguing that it “fail[s] under the

intracorporate conspiracy doctrine,” and that “Plaintiffs

cannot adduce any evidence that [the Boardwalk Defendants]

acted with malice” or that they “had any knowledge of the

Chans’ improper intentions.” (Doc. # 171 at 30-31).

To establish a civil conspiracy claim under Ohio law,

the plaintiff must prove: “(1) a malicious combination; (2)

[of] two or more persons; (3) injury to person or property;

and (4) [the] existence of an unlawful act independent from

the actual conspiracy.”2 Lee v. Countrywide Home Loans, Inc.,

692 F.3d 442, 446 (6th Cir. 2012) (citation omitted). Thus,

a civil conspiracy claim “is derivative and cannot be

maintained absent an underlying tort that is actionable

without the conspiracy.” Meehan v. Mardis, 146 N.E.3d 1266,

1276 (Ohio Ct. App. 2019).

Here, because Plaintiffs’ civil conspiracy claim is

premised on their other tort claims, which the Court has found

all fail as a matter of law, and no other separate unlawful

act is alleged, this claim also fails. See Doane v. Givaudan

Flavors Corp., 919 N.E.2d 290, 298 (Ohio Ct. App. 2009)

(“Without an underlying tort, Doane and Wallace cannot

establish a claim for civil conspiracy.”); see also A-Pinn

Contracting LLC v. Miller Pipeline LLC, No. 1638, 2019 WL

2. Substantially the same elements apply to a civil conspiracy

claim under Maryland law. See Windesheim v. Larocca, 116 A.3d

954, 975 (Md. 2015) (listing the elements to establish a civil

conspiracy claim under Maryland law).

3731895, at *8 (Md. Ct. Spec. App. Aug. 8, 2019) (“[A]

conspiracy cannot be made the subject a civil action, unless

something is done which, without the conspiracy, would give

a right of action. . . . Because the circuit court did not

err in granting summary judgment on all of A-Pinn’s other

claims, A-Pinn’s civil conspiracy claim cannot be sustained.”

(internal quotation marks and citations omitted)). Therefore,

the Motion is granted as to Count VIII. See Morrow v. Reminger

& Reminger Co., 915 N.E.2d 696, 712 (Ohio Ct. App. 2009)

(“{The] civil conspiracy claim is based on falsification and

fraud by appellees. Having concluded that the amended

complaint fails to state causes of action for falsification

and fraud, we likewise conclude that it fails to state a cause

of action for the derivate claim of conspiracy.”).

2. The New City Defendants’ Motion

In their Motion, the New City Defendants seek summary

judgment on all remaining claims of the second amended third-

party complaint. (Doc. # 170). However, the second amended

third-party complaint includes only the Boardwalk Defendants’

claims for contribution against the New City Defendants, and

their claims for contribution and indemnification against the

Chan Defendants – which are all based solely on Plaintiffs’

underlying claims. (Doc. ## 141; 159). Further, the Court has

already determined that all of Plaintiffs’ underlying claims

fail as a matter of law.

Because a claim for contribution or indemnification

cannot survive without an underlying claim, the Boardwalk

Defendants’ third-party claims are now moot. See Payton v.

Rehberg, 694 N.E.2d 1379, 1385 (Ohio Ct. App. 1997) (“Indeed,

the claim for contribution or indemnity against Curry became

moot once the underlying claim was dismissed.”); see also In

re Colum. Leasing L.L.C., 991 F. Supp. 2d 722, 739 (E.D. Va.

2014) (“Furthermore, the Court’s determination with respect

to Plaintiffs’ Motion for Summary Judgment renders moot

Ceres’ claim seeking contribution if ‘Ceres and Columbia are

found jointly liable for the Mullens[‘] injuries,” . . . and

the Court will [dismiss] Ceres’ contribution claim on that

basis.”); Shelton v. United States, No. PWG-14-2031, 2017 WL

679214, at *7 (D. Md. Feb. 21, 2017) (noting that under

Maryland law, “a claim for indemnification is derivative, and

does not arise, unless and until the party seeking

indemnification has paid an adverse judgment or settlement”

(citation omitted)); Wheatley Co. v. Walton, No. 9-91-16,

1991 WL 280009, at *2 (Ohio Ct. App. Dec. 30, 1991) (“Thus

the dismissal of the claim by The Wheatley Company against

appellant renders moot appellant’s derivative claims for

indemnification by his co-defendants.”). Therefore, the

second amended third-party complaint is dismissed as moot,

and the New City Defendants’ Motion is denied.

IV. Conclusion

The New City Defendants’ Motion for Determination of

Choice of Law (Doc. # 169) is denied. The Court finds that

Maryland law applies to Counts I, X, and XV, of the third

amended complaint, while Ohio law applies to Counts III, IV,

V, VI, VIII, XI, XII, XIII, and XIV.

The Boardwalk Defendants’ Motion for Summary Judgment

(Doc. # 171) is granted. All fifteen claims in the third

amended complaint fail as a matter of either Maryland or Ohio

law. The New City Defendants’ Motion for Summary Judgment

(Doc. # 170) is denied. However, because the claims in the

underlying complaint have been dismissed, the derivative

second amended third-party complaint is dismissed as moot.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Third-Party Defendants Min Wang a/k/a Lili Wang, Yannan

Wang, New City Advisors, LLC, and New City Capital, LLC’s

(collectively, the “New City Defendants’”) Motion for

Determination of Choice of Law (Doc. # 169) is DENIED.

(2) Defendants Boardwalk Fresh Burgers & Fries, Inc., and

David DiFerdinando’s (collectively, the “Boardwalk

Defendants’”) Motion for Summary Judgment (Doc. # 171)

is GRANTED.

(3) The Clerk is directed to enter judgment in favor of the

Boardwalk Defendants, and against Plaintiffs Chunhong

Jia, Naihan Li, Nairuo Li, Shulei Wang, Lizhong Yao,

Weiwei Zhang, and Chong Zhao, as to all claims against

them in the third amended complaint. (Doc. # 117).

(4) The New City Defendants’ Motion for Summary Judgment

(Doc. # 170) is DENIED.

(5) The second amended third-party complaint (Doc. # 141) is

DISMISSED as moot.

(6) The Clerk is directed to SET ASIDE its entries of default

as to Third-Party Defendants Archway Partners, LLC, and

Clearwater Hospitality Group, LLC. (Doc. ## 113; 114).

(7) Thereafter, the Clerk is directed to CLOSE the case.

DONE and ORDERED in Chambers in Tampa, Florida, this 9th

day of August, 2021.

tina 90. Husmerby Coe

VIR IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

57