# Jia v. Boardwalk Fresh Burgers & Fries, Inc.

> District Court, M.D. Florida · August 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10108093

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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 _ _
“weyceue) — (sien) gas
ius
$3 $6 million :
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108093. Public record. Not legal advice.