Gilfus v. McNally Capital, LLC.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ARTHUR GILFUS,

Plaintiff,

v. Case No: 8:18-cv-2941-CEH-CPT

MCNALLY CAPITAL, LLC,

Defendant.

___________________________________/

ORDER

This matter comes before the Court on the parties’ cross motions for summary

judgment. Plaintiff Arthur Gilfus moves for partial summary judgment in his favor as

to liability on his breach of contract claim (Doc. 88), Defendant responded in

opposition (Doc. 109), and Plaintiff replied (Doc. 117). Defendant McNally Capital

LLC moves for summary judgment in its favor on all of Plaintiff’s claims (Doc. 89).

Plaintiff responded in opposition (Doc. 111), and Defendant replied (Doc. 115). The

Court, having considered the motions, the parties’ stipulated facts, and being fully

advised in the premises, will deny Plaintiff’s Motion for Partial Summary Judgment

and grant-in-part and deny-in-part Defendant’s motion.

I. BACKGROUND AND FACTS1

1 The Court has determined the facts, which are undisputed unless otherwise noted, based on

the parties’ submissions, including the parties’ Joint Stipulations of Agreed Material Facts

(Docs. 131, 132), depositions, affidavits and attachments thereto. See Docs. 88-1–88-4; 90–95;

110; 112–113. McNally moved to strike the second declaration of Gilfus, which the Court

A. First Nondisclosure Agreement (“First NDA”)

On December 28, 2016, an entity to be formed by Plaintiff Mark Gilfus

(“Gilfus), Mark Hollister (“Hollister”) and Terry North (“North”) on the one hand

(“the Company”), and Defendant McNally Capital, LLC (“McNally”) on the other

hand, entered into a non-disclosure agreement (the “First NDA”). Doc. 131 ¶ 2; Doc.

132 ¶ 3. 4. The First NDA provided, in pertinent part, that:

McNally agrees that the Evaluation Material shall be used

for the purpose of evaluating a possible transaction between

the Company and McNally, and that such information shall

be kept confidential by McNally, its advisors, and its clients;

provided however, that (i) any of such information may be

disclosed to its officers, employees, advisors, clients, agents,

potential financing sources and representatives

(collectively, “Representatives”) who need to know such

information for the purpose of evaluating any such possible

transaction between the Company and McNally (it being

understood that its Representatives shall be informed by

McNally of the confidential nature of such information and

shall be directed by McNally to treat such information

confidentially), (ii) any other disclosure of such information

to third parties who are not Representatives may be made

to which the Company consents in writing, and (iii) any of

such information may be disclosed when such disclosure is

required by a court having applicable jurisdiction.

. . .

Provided that, however, nothing in this letter shall prevent

McNally form evaluating a possible investment in,

collaborating with, and/or entering into a transaction with

(including an investment in) a company whose business is

similar to or competitive with the business of the Company.

Please note that McNally deals with many companies,

some of which may, independently of McNally, pursue

similar or competitive paths regarding their products or

services, technology and/or market development plans to

denied. Docs. 116, 148. For purposes of summary judgment, the Court presents the facts in

the light most favorable to the non-moving party as required by Fed. R. Civ. P. 56.

those which are or may be pursued by the Company. The

occurrence or existence of such similar or competitive

activities shall not by itself be cause for any action or

allegation by the Company the [sic] McNally has failed to

observe its confidentiality obligation set forth above.

. . .

Unless and until a definitive agreement between the

Company and McNally with respect to the transaction

which is the subject of this letter has been executed and

delivered, except for the matters specifically agreed to in this

letter, neither the Company nor McNally shall be under a

legal obligation of any kind whatsoever with respect to such

a transaction by virtue of this letter or any written or oral

expression with respect to such a transaction by any of the

Company’s directors, officers, employees, agents or any

other representatives or the Company’s advisors or

representatives thereof.

Doc. 88-2.

B. Undisputed Facts Regarding Plaintiff’s Motion for Partial Summary

Judgment

David Lovejoy introduced McNally to Gilfus in late 2016. Doc. 132 ¶ 1. On

December 28, 2016, McNally and the Company entered into the First NDA related to

the Nortrax Venture, prior to engaging in discussions, with the understanding that the

First NDA was a binding and enforceable contract. Id. ¶¶ 3, 5. After entering into the

First NDA, Gilfus and two other individuals provided McNally with the “Nortrax

Venture” document, the contents of which McNally was unaware at the time of

receiving it. Id. ¶ 7. Prior to executing the First NDA, McNally had not engaged in the

market for construction and forestry equipment. Id. ¶ 8.

McNally participated in discussions with Gilfus as to how it could best market

the idea referenced in the Nortrax Venture document to McNally’s clients and

potential financing sources. Id. ¶ 9. Gilfus had discussions with Frank McGrew, a

trusted advisor to Dobbs Management Services, LLC. Id. ¶ 10. McNally

communicated with and met Gilfus to discuss the idea in the Nortrax Venture

Document with Dobbs, McNally’s client and potential financing source. Id. ¶ 11. In

accordance with the explicit terms of the First NDA that allowed McNally to share

the Nortrax Venture Document with “clients . . . [and] potential financing sources,”

Gilfus discussed information contained in the Nortrax Venture Document with

Dobbs’ representatives. Id. ¶ 12. The First NDA provided that “[t]he observance of the

mutual confidentiality agreements set forth [in the agreement] shall remain in effect

for a period of one (1) year from the date of signature,” and the First NDA was signed

on December 28, 2016. Id. ¶ 13. McNally has not compensated Gilfus in any respect.

Doc. 60 ¶ 52.

C. Undisputed Facts Regarding McNally’s Motion for Summary

Judgment

On December 23, 2016, Gilfus emailed McNally and stated that he wanted to

present McNally with an opportunity to “acquire an established business from a world

leading manufacturer,” stated that the acquisition opportunity was a company called

Nortrax Equipment Company (“Nortrax”), and provided Nortrax’s website address.

Doc. 131 ¶ 1. On December 28, 2016, the Company and McNally entered into the

First NDA. Id. ¶ 2. Gilfus, Hollister, and North ultimately agreed not to form the

“Company” referred to in the First NDA, and the “Company” was never formed. Id.

¶¶ 3, 4.

The First NDA provides that Evaluation Material “may be disclosed to

[McNally’s] . . . clients . . . potential financing sources and representatives . . . who

need to know such information for the purpose of evaluating any such possible

transaction.” Id. ¶ 5. Additionally, the First NDA provides that “Unless and until a

definitive agreement between the Company and McNally with respect to the

transaction which is the subject of this letter has been executed and delivered, except

for the matters specifically agreed to in this letter, neither the Company nor McNally

shall be under a legal obligation of any kind whatsoever with respect to such a

transaction by virtue of this letter or any written or oral expression with respect to such

a transaction by any of the Company’s directors, officers, employees, agents, or any

other representatives or the Company’s advisors or representatives thereof.” Id. ¶ 6.

The First NDA does not state that McNally agreed to provide Gilfus or the

Company with a finder’s fee, equity, or employment. Id. ¶ 7. Gilfus does not have any

written agreement in which McNally agreed to provide him with a finder’s fee, equity

in a new company, an employment agreement, or a guarantee of employment. Id. ¶¶

8, 9, 10. The Parties never reached agreement on the amount of any finder’s fee

because the number on which a finder’s fee would be based was never determined. Id.

¶ 11. The Parties never reached agreement on the amount of equity capital that the

management team would receive had a transaction been consummated, and did not

get to the point where they could have those discussions. Id. ¶ 12. The Parties’

discussions did not reach a level of specificity where the terms of employment

agreements were ever defined. Id. ¶ 13. The only express written agreement between

McNally and “the Company” as defined in the First NDA is the First NDA itself. Id.

¶ 14. The only express written agreement with McNally that Gilfus signed was the

First NDA. Id. ¶ 15.

Nortrax is a captive subsidiary of Deere & Company (known as “John Deere”).

Id. ¶ 16. Nortrax sells heavy equipment such as bulldozers and backhoes for the

construction, mining, forestry and utility industries. Id. As of 2017, Nortrax operated

dealerships in approximately 50 locations across the United States and Canada. Id.

Gilfus researched McNally and concluded that McNally “had absolutely no

experience with heavy equipment,” and “had never done anything like” the deal

Gilfus hoped would form. Id. ¶ 17. Gilfus, Hollister, and North had a far more

extensive knowledge of the heavy-equipment industry than anyone at McNally. Id. ¶

18. At 11:29 p.m. on January 2, 2017, North emailed a 10-page document entitled

“Nortrax Venture” to McNally (the “Nortrax Venture Document”). Id. ¶ 19. The

transmittal email does not expressly state that the Nortrax Venture Document is

confidential.

Hollister testified that Nortrax did not agree to allow Gilfus, Hollister, or North

to use its financial information, nor did he ask Nortrax for permission to use its

confidential information. Id. ¶¶ 22, 23. Gilfus used confidential information of Nortrax

and/or John Deere in creating the Nortrax Venture Document. Id. ¶ 24. Gilfus used

confidential information of Nortrax and/or John Deere because, in his words,

“[h]onestly, I needed it” to “have a basis to start” creating the Nortrax Venture

Document, and because he and his partners “had the opportunity” to use it however

it was obtained. Id. ¶ 25. Gilfus knew that Hollister no longer worked for Nortrax

before Hollister obtained and Gilfus used the confidential information of Nortrax or

John Deere in creating the Nortrax Venture Document. Id. ¶ 26.

On January 3, 2017, Ward McNally (the founder and Managing Partner of

McNally) and Frank McGrew (“McGrew”) (a Managing Partner and the Chief

Compliance Officer for McNally) spoke by telephone with Gilfus, Hollister and North.

Id. ¶ 27. This was the first, and the only, time Ward McNally ever spoke with Gilfus.

Id. On March 6, 2017, McNally and John Deere signed a Mutual Non-Disclosure

Agreement (the “Second NDA”) to allow for discussions regarding a possible

acquisition relating to Nortrax. Id. ¶ 28. On March 14, 2017, Frank McGrew emailed

Gilfus stating that “I was also thinking we should get you to execute a joinder so you

are covered under the [Confidentiality Agreement] with McNally and Deere.” Id. ¶ 29.

The joinder that McGrew asked Gilfus to sign permitted Gilfus to be included in

discussions with John Deere and permitted Gilfus to obtain authorized access to John

Deere’s confidential information. Id. ¶ 30. On March 15, 2017, Gilfus executed a

Joinder to the Second NDA on behalf of his consulting firm, HPD Advisors. Id. ¶ 31.

On June 6, 2017, Gilfus, Hollister, and North consented to McNally revealing their

identities to John Deere and Nortrax. Id. ¶ 32. Prior to this time, Gilfus, Hollister, and

North requested that McNally not disclose their involvement to anyone, including

anyone at John Deere or Nortrax. Id.

McNally provided the Nortrax Venture Document to Dobbs Management

Service, LLC (“Dobbs”) to seek Dobbs’s interest in a transaction involving Nortrax.

Id. ¶ 33. Dobbs was one of McNally’s clients and a potential financing source for a

venture involving Nortrax at the time McNally shared the Nortrax Venture Document

with Dobbs. Id. ¶ 34. Gilfus and his partners knew McNally was going to share the

Nortrax Venture Document with Dobbs. Id. ¶ 35. Gilfus and his partners wanted

McNally to share the Nortrax Venture Document with Dobbs. Id. ¶ 36. Gilfus believed

Dobbs was “a perfect match” for a potential Nortrax venture. Id. ¶ 37. Gilfus did not

object to disclosure of the Nortrax Venture Document to Dobbs and did not demand

Dobbs return the Nortrax Venture Document. Id. ¶ 38. Gilfus does not seek relief in

this case on the grounds that McNally shared the Nortrax Venture Document with

Dobbs. Id. ¶ 39.

On June 5, 2017, Frank McGrew emailed Chris Crosby (“Crosby”) of Dobbs,

stating: “[I] want to discuss when and how to get Art Gilfus and the other Deere

proposed management team in front of you. I have them under NDA already so just

need to get your blessing and discuss how they can be helpful to diligence and

constructing the plan on go forward basis.” Id. ¶ 40. Gilfus participated in a call with

Chris Crosby and others from Dobbs on June 8, 2017. Id. ¶ 41. Following that call,

Gilfus and Hollister traveled to Memphis to meet with Dobbs on June 16, 2017. Id.

On June 19, 2017, Gilfus, in a thank you email and in response to a prior offer for

Dobbs to directly pay Gilfus consulting fees, stated to Dobbs: “Thank you as well for

your offer to reimburse us for our airfare to Memphis and to compensate us as

consultants in the diligence process. We do not wish to be reimbursed or compensated

as this has been a long labor of ‘professional love’ for us. We wish only to be of

assistance in any way possible and to see Nortrax SE in the hands of a good owner

where its true potential can be unlocked. Having said this, we have never turned down

a good steak and a few beers as compensation for anything!” Id. ¶ 42.

On June 19, 2017, Crosby emailed McGrew to say that he was hesitant to

proceed with Gilfus and Hollister in a managerial role because “I don’t think they are

the guys” and later added that he could “probably not get comfortable with Art as a

CEO.” Id. ¶ 43. John Deere is very particular, including in choosing its business

partners, to protect its brand. Id. ¶ 44. John Deere would have to agree to any proposed

venture involving Nortrax. Id. ¶ 45. John Deere was not interested in selling Nortrax

in its entirety; instead, John Deere was only interested in a family office purchasing

one or more of its Nortrax dealerships. Id. ¶ 46. Former John Deere executive Mark

Germain declared that John Deere would not be interested in selling any Nortrax

dealerships if Gilfus or Hollister would be involved with their management. Id. ¶ 47.

Former John Deere executive Mark Germain and Dobbs’ executive Chris Crosby

declared that John Deere and Nortrax would not sell Nortrax to a sponsor who

intended to use Hollister, whom Germain claimed Nortrax fired for cause, in a senior

management role. Id. ¶ 48.

In 2017, Dobbs purchased seven dealership locations in Florida from Nortrax.

Id. ¶ 49. Dobbs did not purchase Nortrax in its entirety. Id. ¶ 50. McNally did not

purchase Nortrax or any portion of Nortrax. Id. ¶ 51. Ward McNally declared that a

McNally entity made a small (3.9%) co-investment in the holding company that owns

Dobbs’ interests in these seven dealerships. Id. ¶ 52.

II. LEGAL STANDARD

Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, show there is no

genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The moving party bears the initial burden of stating the basis for its motion and

identifying those portions of the record demonstrating the absence of genuine issues of

material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show

the court that there is “an absence of evidence to support the nonmoving party’s case.”

Celotex, 477 U.S. at 325.

When the moving party has discharged its burden, the nonmoving party must

then designate specific facts showing that there is a genuine issue of material fact. Id.

at 324. Issues of fact are “genuine only if a reasonable jury, considering the evidence

present, could find for the nonmoving party,” and a fact is “material” if it may affect

the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248–49 (1986). In determining whether a genuine issue of material fact exists, the

court must consider all the evidence in the light most favorable to the nonmoving

party. Celotex, 477 U.S. at 323. However, a party cannot defeat summary judgment by

relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x 852,

858 (11th Cir. 2006).

The standard of review for cross-motions for summary judgment does not differ

from the standard applied when only one party files a motion, but simply requires a

determination of whether either of the parties deserves judgment as a matter of law on

the facts that are not disputed. Am. Bankers Ins. Group v. United States, 408 F.3d 1328,

1331 (11th Cir. 2005). The Court must consider each motion on its own merits,

resolving all reasonable inferences against the party whose motion is under

consideration. Id. The Eleventh Circuit has explained that “[c]ross-motions for

summary judgment will not, in themselves, warrant the court in granting summary

judgment unless one of the parties is entitled to judgment as a matter of law on facts

that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.

1984). Cross-motions may, however, be probative of the absence of a factual dispute

where they reflect general agreement by the parties as to the controlling legal theories

and material facts. Id. at 1555–56.

III. DISCUSSION

In this business dispute, Gilfus sued McNally under four theories: breach of

contract, breach of fiduciary duty, promissory estoppel, and unjust enrichment. Doc.

38. Plaintiff moves for partial summary judgment as to liability on his breach of

contract claim in Count I. Doc. 88. For the reasons discussed below, that motion is

due to be denied. McNally moves for summary judgment on all claims. Doc. 89.

McNally’s motion will be granted as to Gilfus’s breach of contract, breach of fiduciary

duty, and promissory estoppel claims and denied as to Gilfus’s unjust enrichment

claim. The Court addresses each claim in turn.

A. Breach of Contract

To state a claim for breach of contract under Illinois law,2 a plaintiff must allege

“the existence of a valid and enforceable contract, performance by the plaintiff, breach

of the contract by the defendant, and resultant damages or injury to the plaintiff. . . .

A valid and enforceable contract requires an offer, an acceptance, and consideration.”

Sheth v. SAB Tool Supply Co., 990 N.E.2d 738, 754 (Ill. App. Ct. 2013) (internal citations

and quotation marks omitted).

1. McNally’s Motion for Summary Judgment

McNally moves for summary judgment in its favor on Count I arguing there is

no disputed question of fact that it is entitled to judgment as a matter of law on Gilfus’s

breach of contract claim. Specifically, McNally argues Gilfus’s contract claim fails

because he lacks standing to sue individually for breach of the First NDA; the

Evaluation Material consisted of confidential information belonging to Nortrax that

was used by Gilfus and Hollister without Nortrax’s consent; the First NDA did not

preclude McNally from sharing the Evaluation Material with Dobbs as a client and

potential financing source and thus there was no breach; Gilfus has no cognizable

damages based on the possibility of a finder’s fee, equity, or employment; Gilfus fails

to establish damages based on expenses and effort; and McNally was not the

proximate cause of Gilfus’s damages because Nortrax and Deere refused to deal with

Gilfus. Doc. 89.

2 The First NDA provides that the agreement is governed by Illinois law. Doc. 88-2 at 2.

i. No Breach of the First NDA

The Court first addresses the lack of breach because it is dispositive of Gilfus’s

claim in Count I. In his Amended Complaint, Gilfus alleges:

Defendant materially breached the First NDA when it

shared and used Plaintiff’s confidential Evaluation Material

with at least one known third party, to-wit: Dobbs.

Doc. 38 ¶ 62. McNally argues there was no breach because it appropriately shared the

“Evaluation Material”3 with Dobbs. Indeed, the First NDA specifically contemplates

that the Evaluation Material may be disclosed by McNally to its clients and to

potential financing resources. See Doc. 88-2 at 1. It is undisputed that Dobbs is a client

and potential financing source. Doc. 131 ¶ 34; Doc. 132 ¶ 11. Thus, no breach occurred

by McNally’s disclosure of the Evaluation Material to Dobbs. Gilfus has abandoned

this theory as evidenced by the stipulated facts. See Doc. 132 ¶ 12 (Gilfus stipulates

that the Evaluation Material was shared with Dobbs pursuant to the First NDA); Doc.

131 ¶ 39 (Gilfus does not seek relief in this case on the grounds that McNally shared

the Nortrax Venture Document with Dobbs.).

Gilfus now concedes that the breach of the First NDA is not in the disclosing

of the information to Dobbs, and instead he argues McNally breached the First NDA

by facilitating a deal with Dobbs, Nortrax, and Deere that did not include Gilfus. Doc.

111 at 23. However, the First NDA does not preclude such conduct. Thus, Gilfus fails

3 McNally argues that the Evaluation Material was created using information taken from

Nortrax without its consent, and thus it submits that the information shared did not belong

to Gilfus in the first instance.

to establish any “breach” under the First NDA, and his breach of contract claim fails

as a matter of law. In relevant part, the First NDA provided:

[N]othing in this letter shall prevent McNally from

evaluating a possible investment in, collaborating with,

and/or entering into a transaction with (including an

investment in) a company whose business is similar to or

competitive with the business of the Company. Please note

that McNally deals with many companies, some of which

may, independently of McNally, pursue similar or

competitive paths regarding their products or services,

technology and/or market development plans to those

which are or may be pursued by the Company. The

occurrence or existence of such similar or competitive

activities shall not by itself be cause for any action or

allegation by the Company the [sic] McNally has failed to

observe its confidentiality obligation set forth above.

Doc. 88-2. The First NDA is titled “Confidentiality Agreement.” Id. Construing the

agreement in a light favorable to Gilfus, no reasonable jury could find that any other

promises were made by this agreement other than to maintain the confidentiality

(except when otherwise permitted to be disclosed) of the Evaluation Material.

Contrary to Plaintiff’s argument that the agreement prohibited pursuing a deal without

him, a plain reading of the First NDA reveals there were no promises or guarantees of

a transaction that included Gilfus. As evidenced by the quoted language above, the

First NDA explicitly states that nothing about the agreement precludes McNally from

evaluating and entering into a potential related investment with another company.

And, “[t]he occurrence or existence of such similar or competitive activities shall not

. . . be cause for any action . . . [that] McNally has failed to observe its confidentiality

obligation set forth [in the agreement.]” Thus, Gilfus cannot claim that the First NDA

has been breached due to McNally engaging in competitive activity when the First

NDA specifically contemplates that could happen and declares that such activity shall

not be a “cause of action” for breach of the confidentiality agreement.

Gilfus’s revisionist version of what constitutes a breach under the agreement

claims that McNally breached the First NDA by using the Evaluation Material to

pursue a transaction that did not include him. In support, he cites to language in the

agreement that states the information may be disclosed to a potential financing source

“for the purpose of evaluating any such possible transaction between the Company

and McNally.” Doc. 88-2 at 1. Gilfus argues this is the only purpose for which the

information may be used. But that is not what the agreement says, even when viewed

in a light most favorable to Gilfus. The agreement does not use the word “only” or

any other limiting language. To the contrary, the First NDA states: “Provided that,

however, nothing in this letter shall prevent McNally from evaluating a possible

investment in . . . and/or entering into a transaction with . . . a company whose

business is similar.” Id. The First NDA did not preclude McNally from collaborating

with others. In fact, the First NDA specifically alerted Gilfus that McNally deals with

many companies, some of which may pursue a similar or competitive path to that of

Gilfus’s Company. Moreover, it was Dobbs and Deere who entered into the Nortrax

deal. And, critically, neither Deere nor Dobbs were signatories to the First NDA and

there are no claims being pursued against Deere or Dobbs in this action.4

4 The Court is cognizant of Gilfus’s efforts to amend to add Dobbs as a party, but given the

late stage of the litigation, such amendment was inappropriate. However, such ruling did not

Gilfus concedes that revealing the Evaluation Material to Dobbs was permitted

under the First NDA, and he fails to direct the Court to any provision in the First NDA

that precluded McNally from evaluating, collaborating, or entering into a transaction

with a company whose business is similar to Gilfus’s. Under Illinois law, “[t]he

primary objective in construing a contract is to give effect to the intent of the parties.”

Gallagher v. Lenart, 874 N.E.2d 43, 58 (Ill. 2007) (citations omitted). “The intent of the

parties is not to be gathered from detached portions of a contract or from any clause

or provision standing by itself.” Id. (citing Martindell v. Lake Shore Nat’l Bank, 154

N.E.2d 683 (Ill. 1958)). “A court must initially look to the language of a contract alone,

as the language, given its plain and ordinary meaning, is the best indication of the

parties’ intent.” Gallagher, 874 N.E.2d at 58. In so doing, a contract “must be construed

as a whole, viewing each part in light of the others.” Id. Review of the plain language

of the First NDA, as a whole, reveals it did not preclude McNally from pursuing other

transactions that did not include Gilfus.

The First NDA further provides:

Unless and until a definitive agreement between the

Company and McNally with respect to the transaction

which is the subject of this letter has been executed and

delivered, except for the matters specifically agreed to in this

letter, neither the Company nor McNally shall be under a legal

obligation of any kind whatsoever with respect to such a transaction

by virtue of this letter . . . .

preclude Plaintiff from filing a separate action against Dobbs. The Court is unaware of

whether Plaintiff initiated a separate action against Dobbs.

Doc. 88-2 at 2 (emphasis added). It is undisputed there was no definitive agreement

entered into between Gilfus and McNally. Doc. 91-1 ¶ 8. Thus, no legal obligation

arose under the First NDA as it relates to any transaction involving Nortrax until a

definitive agreement was in place.5 Because no question of fact exists that there was

no breach by McNally under the terms of the First NDA, Gilfus’s motion for summary

judgment as to Count I is due to be denied. And McNally’s motion for summary

judgment on Count I is due to be granted.

ii. Other issues argued by McNally

Although the Court finds that McNally is entitled to summary judgment on

Count I because there was no breach of the First NDA, the Court will briefly address

the other issues raised by McNally in its motion on this claim. First, McNally argues

that Gilfus lacks standing to individually bring a claim for breach of contract. In

support, McNally agues that Gilfus cannot pursue a remedy, individually, based on

an agreement entered into by the Company to be formed consisting of Gilfus,

Hollister, and North. The First NDA was signed by Gilfus, North, and Hollister “By

and For the Company.” Doc. 88-2 at 2. Under Illinois law, “[i]t is settled that if an

injury is incurred by the corporation, then the shareholders can only sue upon a

derivative basis and not as individuals.” Bio–Scientific Clinical Lab., Inc. v. Todd, 501

N.E.2d 192, 195 (Ill. 1986). However, a shareholder with a direct, personal interest in

a cause of action may bring a lawsuit against a defendant even if the corporation’s

5 This is not to say that McNally’s pursuit of a venture without Gilfus is not actionable.

However, as discussed, such pursuit is not a breach of the plain language of the First NDA.

rights are also implicated. See Franchise Tax Board v. Alcan Aluminum Ltd., 493 U.S.

331, 336 (1990). In a light favorable to Gilfus, he asserts a direct, personal interest in

the claim.

The undisputed evidence reveals, however, that the “Company” was never

formed. Doc. 131 ¶¶ 3, 4. McNally contends that even if not acting on behalf of the

“Company,” Gilfus and his partners were acting as a de facto partnership, and as such,

any claim or remedy sought must be brought either under (1) the name of the

partnership or, alternatively, (2) under the names of all partners doing business as the

partnership. Under Illinois law, “[a] partnership may sue or be sued in the names of

the partner as individuals doing business as the partnership, or in the firm name, or

both.” 735 Ill. Comp. Stat. Ann. 5/2-411(a). Here, Gilfus sues in his own name

individually. The record reveals that neither Hollister nor North were interested in

being involved in the lawsuit.

Gilfus responds that he was acting as a promoter of the company, and as such,

has standing to sue. A promoter of a corporation is one who actively assists in creating,

projecting and organizing a corporation. Tin Cup Pass Ltd. P’ship v. Daniels, 553 N.E.2d

82, 85 (Ill. App. Ct. 1990) (citations omitted). “[W]hether personal liability will be

imposed upon a promoter who makes a contract for the benefit of a proposed

corporation depends upon the intent of the parties.” Id. Disputed issues of fact exist as

to whether Gilfus was acting as a partner or a promoter when he signed the First NDA.

Thus, McNally’s standing argument is rejected as a basis for finding in its favor.

As to McNally’s damages argument, it is undisputed the First NDA does not

provide Gilfus or the Company with a finder’s fee, equity, or employment. Doc. 131

¶ 7. Thus, such damages cannot form the basis of Gilfus’s claim for damages in Count

I. However, the Court rejects McNally’s argument that no damages at all may be

claimed. The Court declined to strike Gilfus’s Second Declaration which included, at

a minimum, assertions that he suffered some damages. In a light favorable to Gilfus,

he has put forth evidence of damages.

Finally, McNally argues that it was not the proximate cause of Gilfus’s damages

because Nortrax and Deere refused to deal with Gilfus. McNally’s argument on this

point is well-taken. Although Gilfus may be able to offer some evidence that he

sustained damages, albeit minimal, he fails to show that McNally caused the damages

because the undisputed evidence shows that Deere and Nortrax would not have

entered into a business venture with Gilfus in any event. See Doc. 92-1 ¶ 5 (Declaration

of Mark Germain).

2. Plaintiff’s Motion for Partial Summary Judgment (Doc. 88)

Plaintiff seeks partial summary judgment in his favor as to liability on his breach

of contract claim arguing that the First NDA is a valid and enforceable contract and

that McNally breached the First NDA by using the confidential information that he

provided in order to acquire John Deere dealerships without including Gilfus in on the

deal. Doc. 88. Gilfus complains he has been damaged as a result, which damages he

submits should be decided by the trier of fact. McNally responds that the motion

should be denied because Gilfus lacks standing to assert the claim in his individual

capacity where he entered the agreement as a company or, at least, a partnership. Next

McNally argues that Gilfus failed to adduce evidence showing damages or that

McNally was the proximate cause of any damages to Gilfus. Finally, McNally argues

that Gilfus has not established any breach of the First NDA. Doc. 109. As addressed

in the section above, no disputed question of fact exists that there was no breach of the

First NDA because disclosure of the Evaluation Materials under the agreement was

permitted, and no other legal obligation was created by the agreement. Accordingly,

Plaintiff’s Motion for Partial Summary Judgment on his breach of contract claim is

due to be denied.

B. Breach of Fiduciary Duty

In Count II, Gilfus sues McNally for breach of fiduciary duty alleging McNally

pursued a transaction to acquire Nortrax without including Gilfus in the venture. See

Doc. 38. The elements of a claim for breach of fiduciary duty under Florida law are:

“the existence of a fiduciary duty, and the breach of that duty such that it is the

proximate cause of the plaintiff’s damages.” Gracey v. Eaker, 837 So. 2d 348, 353 (Fla.

2002). Gilfus concedes that the potential venture began as an arm’s-length

relationship, which ordinarily would not create a fiduciary duty. See Taylor Woodrow

Homes Fla., Inc. v. 4/46-A Corp., 850 So. 2d 536, 541 (Fla. 5th DCA 2003) (holding that

a fiduciary relationship does not exist when parties are dealing at arm’s length

“because there is no duty imposed on either party to protect or benefit the other”). But

he asserts that McNally’s subsequent conduct created a fiduciary duty by engendering

Gilfus’s trust and confidence. Doc. 38 ¶ 68. McNally moves for summary judgment in

its favor because Gilfus fails to establish the existence of a fiduciary duty as a matter

of law and, even if a duty existed, he fails to show a breach of the alleged fiduciary

duty. See Doc. 89 at 19. The Court agrees.

The Court must first determine whether a fiduciary relationship existed. In

Florida, a fiduciary relationship exists “when there is a relationship of trust and

confidence between parties, where confidence is given by one and trust is accepted by

the other.” Amoco Oil Co. v. Gomez, 125 F. Supp. 2d 492, 509 (S.D. Fla. 2000) (citation

omitted). A plaintiff alleging an implied fiduciary duty must offer “substantial

evidence showing some dependency by one party and some undertaking by the other

party to advise, counsel, and protect the weaker party.” Swerhun v. Gen. Motors Corp.,

812 F. Supp. 1218, 1223 (M.D. Fla. 1993) (citing Lanz v. Resolution Tr. Corp., 764 F.

Supp. 176 (S.D. Fla. 1991); Cripe v. Atl. First Nat’l Bank, 422 So. 2d 820 (Fla. 1982)).

To survive a motion for summary judgment, a party alleging an implied

fiduciary relationship must show that confidence was “reposed as a result of the

position of superiority and influence” held by the other party. Amoco Oil, 125 F. Supp.

2d at 509 (citing Becks v. Emery–Richardson, Inc., No. 86–6866–CIV, 1990 WL 303548

*28 (S.D. Fla. Dec. 21, 1990)). Although the issue of whether a fiduciary relationship

exists is a question of fact, see Morton v. Young, 311 So. 2d 755, 756 (Fla. 3d DCA 1975),

a plaintiff cannot prevail by merely showing that he or she placed his trust and

confidence in the defendant; the plaintiff must also introduce “substantial evidence”

that the defendant “recognized, accepted, or undertook the duties of a fiduciary—that

of advising, counseling, and protecting [the plaintiff].” Amoco Oil, 125 F. Supp. 2d at

509 (citing Swerhun, 812 F. Supp. at 1223); see also Lanz, 764 F. Supp. at 179 (holding

that advice from defendant to plaintiff did not create a fiduciary relationship).

Here, Gilfus argues that he depended on McNally because of McNally’s

“superior knowledge and skill.” Doc. 111 at 21–22. However, the record does not

support Gilfus’s contention that the relationship was so one-sided. To the contrary,

the parties agree that Gilfus, Hollister, and North had far more extensive knowledge

of the heavy-equipment industry than anyone at McNally. Doc. 131 ¶ 18. Although

Gilfus asserts that he “placed absolute trust in [McNally’s] access to acquisition

financing sources and its knowledge of how to bring acquisition transactions to fruition

and its continued assurance that it was representing [Gilfus] for the mutual betterment

of both parties as part of a circle of friends,” id. at 25–26, the mere fact that one party

trusts or depends on the other, without more, does not create a fiduciary relationship.

Amoco Oil Co., 125 F. Supp. 2d at 509. As McNally notes, Gilfus must also show “some

degree of undertaking on the other side to advise, counsel, and protect the weaker

party.” Doc. 89 at 19 (quoting Weinberg v. Advanced Data Processing, Inc., 147 F. Supp.

3d 1359, 1367 (S.D. Fla. 2015)). Gilfus fails to direct the Court to record evidence

demonstrating that McNally took on that role as adviser, counselor, or protector.

Email exchanges reflected the parties were on equal footing as opposed to one party

being in a superior position. By way of example, in one email Terry North asks Frank

McGrew if McNally has a form confidential agreement it is “most comfortable with”

or if North should send his. This exchange does not show the one-sided dependency

that Gilfus claims. Although Gilfus argues that he depended on McNally’s superior

knowledge about financing mergers and acquisitions, he concedes that he likewise had

superior knowledge of the construction equipment industry (Doc. 111 at 26 n.11),

which supports that Gilfus and McNally sought each other’s expertise in the proposed

arms-length venture.

The record does not reflect that McNally undertook a duty to advise, counsel,

and protect Gilfus. Gilfus argues that his trust in and dependency on McNally created

a fiduciary relationship, but mere trust reposed by one party without undertaking by

the other does not create a fiduciary relationship. Amoco Oil, 125 F. Supp. 2d at 509.

Although the existence of a fiduciary relationship is a fact-intensive inquiry, Gilfus

points to no facts to demonstrate an undertaking by McNally to elevate their dealings

beyond an arm’s-length relationship. In a light favorable to Gilfus, at most, he cites to

his own claims that he placed his absolute trust in McNally and its financing

knowledge and McGrew’s description of the three of them as a “circle of friends.”

Doc. 111 at 28. Nothing about this “circle of friends” comment creates a genuine

dispute of material fact as to whether McNally assumed the role of protector,

counselor, and advisor. Accordingly, Gilfus has not shown that McNally owed him a

fiduciary duty.

Even if Gilfus could demonstrate that McNally owed Gilfus a fiduciary duty,

McNally did not breach the alleged duty because McNally was not obligated to include

Gilfus in its transaction with Dobbs. Gilfus does not contend that McNally breached

its alleged fiduciary duty by providing the Evaluation Materials to Dobbs. Doc. 111 at

29. Instead, Gilfus argues that McNally breached the alleged duty by pursuing an

acquisition of Nortrax that did not include him. Id. Although Gilfus alleges that the

terms of the Second NDA compelled him to forgo any independent business

transactions regarding John Deere thereby “locking up” Gilfus’s use of his own

confidential information, Doc. 38 ¶ 70, Gilfus does not point to evidence to support

his claim of his information being “locked up.” And, by the plain terms of the First

NDA, McNally was not precluded from pursuing a venture with another company

without Gilfus. See Doc. 88-2 at 3. Thus, even if a fiduciary relationship existed, Gilfus

has not shown a breach of the purported fiduciary duty. Nor can Gilfus show that his

damages were proximately caused by McNally’s alleged breach because the evidence

reflects Gilfus and McNally could not reach an agreement on remuneration and that

John Deere refused to do business with Gilfus and his partners. See Doc. 92-1 ¶ 3–5;

Doc. 90-3 ¶ 8, 12–14. Accordingly, McNally is entitled to summary judgment on

Count II.

C. Promissory Estoppel

In Count III of his Amended Complaint, Gilfus sues McNally for promissory

estoppel. He alleges McNally promised to provide him with a finder’s fee, equity in

the new company, and an employment contract in consideration for Gilfus providing

the Evaluation Material to McNally. Doc. 38 ¶ 77. Gilfus further alleges that McNally

made these promises to induce him to provide the key confidential information about

the industry and that McNally knew that its promises would induce Gilfus to provide

the information, which he did. Id. ¶¶ 78–80. Gilfus alleges McNally used the

Evaluation Material without providing him the promised finder’s fee, equity, or

employment contract. Id. ¶ 81.

In its motion for summary judgment, McNally argues that Gilfus cannot prevail

on his claim for promissory estoppel because it did not promise Gilfus a finder’s fee,

equity in a new company following the purchase of Nortrax, or employment with that

new company. Doc. 89 at 24. Next, McNally argues that Gilfus fails to show evidence

of any action or forbearance on his part in reliance on the alleged promises of McNally.

Id. at 25. Finally, McNally argues that no injustice will result due to Gilfus’s

inequitable conduct and unclean hands in using confidential material Hollister stole

from Nortrax in creating the Evaluation Material.

In Florida, the basic elements of a claim for promissory estoppel, as set forth in

Restatement (Second) of Contracts § 90 (1979), are:

[1] A promise which the promisor should reasonably expect

to induce action or forbearance on the part of the promisee

or a third person and [2] which does induce such action or

forbearance is binding if [3] injustice can be avoided only by

enforcement of the promise.

DK Arena, Inc. v. EB Acquisitions I, LLC, 112 So. 3d 85, 93 (Fla. 2013) (citing W.R. Grace

and Co. v. Geodata Serv., Inc., 547 So. 2d 919, 924 (Fla. 1989)).

It is undisputed that the First NDA contained no provision for a finder’s fee,

equity in a new company, or a management employment contract. See Doc. 88-2; Doc.

95-2 ¶ 6. However, Gilfus contends that McNally brought up the issue of remuneration

and did not oppose Gilfus’s proposal. In support, Gilfus cites to his own deposition in

which he testifies that Ward McNally at their first meeting asked Gilfus what he

wanted. In response, Gilfus consistently stated he wanted a finder’s fee, equity, and an

employment contract. Doc. 111 ¶ 26. According to Gilfus, Ward McNally responded

that was “reasonable.” Doc. 94-2 at 53, 57, 150, 183. In his responses to McNally’s

interrogatories, Gilfus states that in February 2017 McGrew similarly acknowledged

that such requests were reasonable and McGrew said it would be discussed with

potential investors. Doc. 95-1 at 9-10. Gilfus testified that he had meetings, notes, and

phone calls over a period of eight months in which McNally told him they would get

a finder’s fee.6 Doc. 94-2 at 164–66.

McNally disputes Gilfus’s contentions. In his affidavit (Doc. 90-1), Ward

McNally states that “[a]t no point during that January 3rd telephone call (or at any

other time before or after such telephone call) did I offer Gilfus, Hollister or North a

‘finder’s fee,’ equity in any new venture, or a management contract for their

employment in any proposed new venture.” Id. ¶ 12. Similarly, Frank McGrew states

in his affidavit (Doc. 91-1) that “[a]t no point during that January 3rd telephone call

(or at any other time before or after such telephone call) did Ward (or any McNally

representative) offer Gilfus, Hollister or North a ‘finder’s fee,’ equity in any new

venture, or a management contract for their employment in any proposed new

venture. Nor did Ward (or any McNally representative) ever tell Gilfus, Hollister or

North that such consideration would be reasonable.” Doc. 90-1 ¶ 12. McGrew further

states he “never offered Gilfus, Hollister or North a ‘finder’s fee,’ equity in any new

6 Gilfus does not file copies of any notes or documents memorializing the meetings and calls.

venture, or a management contract for employment in any new venture. Nor did we

ever even discuss the amount of a ‘finder’s fee,’ the amount of equity in any new

venture, or the terms of any potential management contract for employment in any

new venture.” Doc. 91-1 ¶ 16.

Thus, disputed issues of fact exist as to whether a finder’s fee, equity, or an

employment contract were discussed. However, even assuming the facts in a light most

favorable to Gilfus, his claim for promissory estoppel still cannot stand. Accepting that

Gilfus told McNally he wanted a finder’s fee, equity, and employment contract and

McNally or his representatives responded that such requests were reasonable, it is

undisputed that, at best, the topics were discussed generally, and no specifics were ever

discussed or agreed upon. In his deposition, Gilfus testified that he did not know what

the finder’s fee would be because it depended on the ultimate size of the transaction.

See Doc. 94-2 at 102, 184, 186, 339. He did not have any specifics regarding an

employment contract because it depended on the investor they found. Id. at 186. Gilfus

testified that it never got to the point of identifying the amount of finder’s fee because

the number on which a finder’s fee would be based was never determined. Id. at 339.

Further, the parties never got to the point in the discussion where the terms of the

employment agreements were ever defined. Id. at 338-40; Doc. 131 ¶ 13.

In Florida, claims for promissory estoppel must be “definite as to terms and

time.” Hopkins Pontiac GMC, Inc. v. Ally Fin. Inc., 60 F. Supp. 3d 1252, 1261–62 (N.D.

Fla. 2014) (citing W.R. Grace & Co., 547 So. 2d at 924). Gilfus has offered no evidence

that the parties ever agreed to any specifics regarding terms or time frame. At best,

Gilfus shows “a truthful statement as to the present intention of a party with regard to

his future act,” W.R. Grace, 547 So. 2d at 924, which is insufficient to establish a claim

for promissory estoppel.

In a light favorable to Gilfus, the alleged promises made to him are still too

indefinite in character to justify the application of promissory estoppel. There was

never a discussion among the parties as to the amount of the finder’s fee, the terms of

an employment contract, or the amount of equity. “To be enforceable, an agreement

must be sufficiently specific, and reflect assent by the parties to all essential terms. . . .

Where essential terms of an agreement remain open, subject to future negotiation,

there can be no enforceable agreement.” Bergman v. Delulio, 826 So. 2d 500, 503, (Fla.

4th DCA 2002) (quoting Suggs v. Defranco’s Inc., 626 So. 2d 1100 (Fla. 1st DCA 1993)).

It is clear that the discussions between Gilfus and McNally were, at best, subject to

future negotiation. See Gowni v. BP Corp. N. Am., No. 6:01-cv-1405-JA-KRS, 2003 WL

24051561, at *8 (M.D. Fla. May 9, 2003) (finding the alleged promises made to Mr.

Gowni lacked the essential details necessary to apply the doctrine of promissory

estoppel.).

In Gowni, the court found the plaintiffs’ reliance on alleged promises to be

unjustifiable where they knew that all discussions with defendant’s representative were

subject to the approval of Amoco’s real estate department. Id. at *8. Similarly, here, it

is undisputed that John Deere was very particular in choosing its business partners and

that it would have to agree to any proposed venture involving Nortrax. Doc. 131 ¶¶

44, 45. It is also undisputed that former John Deere executive Mark Germain and

Dobbs’ executive Chris Crosby stated that John Deere and Nortrax would not sell

Nortrax to a sponsor who intended to use Hollister, who had been fired from Nortrax.

Id. ¶ 48. Germain did not believe that Gilfus was suited to serve in a leadership role at

a Nortrax dealership. Doc. 92-1 ¶ 3.

Here, the alleged promises lacked essential details and were too indefinite to

justify the application of promissory estoppel, and any claimed reliance on the alleged

promises is unjustifiable where the evidence supports that Deere would not have

pursued a venture that included Gilfus. Thus, McNally is entitled to summary

judgment on this claim.

D. Unjust Enrichment

In Count IV, Gilfus sues McNally for unjust enrichment. “A claim for unjust

enrichment is often referred to as a quasi-contract, or a contract implied in law.” Doral

Collision Ctr., Inc. v. Daimler Tr., No. 3D21-1385, 2022 WL 2057573, at *3 (Fla. 3d

DCA June 8, 2022) (citing Com. P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc.,

695 So. 2d 383, 386 (Fla. 4th DCA 1997) (“To describe the cause of action

encompassed by a contract implied in law, Florida courts have synonymously used a

number of different terms—‘quasi contract,’ ‘unjust enrichment,’ ‘restitution,’

‘constructive contract,’ and ‘quantum meruit.’”)). Under Florida law, to prevail on a

claim for unjust enrichment, a plaintiff must show that: (1) plaintiff has conferred a

benefit on the defendant, who had knowledge thereof; (2) defendant voluntarily

accepts and retains the benefit conferred; and (3) the circumstances are such that it

would be inequitable for the defendant to retain the benefit without first paying the

value thereof to the plaintiff.” Duty Free World, Inc. v. Miami Perfume Junction, Inc., 253

So. 3d 689, 693 (Fla. 3d DCA 2018) (internal quotation marks and citations omitted).

“At the core of the law of restitution and unjust enrichment is the principle that a party

who has been unjustly enriched at the expense of another is required to make

restitution to the other.” Gonzalez v. Eagle Ins. Co., 948 So. 2d 1, 3 (Fla. 3d DCA 2006).

McNally moves for summary judgment on Gilfus’s unjust enrichment claim,

arguing first that he conferred nothing of value to McNally and, second, that his

inequitable conduct bars his claim as a matter of law. McNally argues that Gilfus’s

claim that he made introductions to unspecified persons in the agricultural industry is

too vague to demonstrate the conferral of a benefit. Next, McNally claims the

Evaluation Material was not Gilfus’s to confer, and in any event, the material was of

no benefit because John Deere was not interested in selling Nortrax as Gilfus

proposed, but only in selling some of its Nortrax dealerships. Finally, McNally argues

that any “education” Gilfus provided regarding the industry is amorphous and

unsupported by record evidence. Doc. 89 at 28–31.

Gilfus responds that his sharing of the Evaluation Material under the First NDA

apprised McNally of a business opportunity it otherwise would not have known about.

Doc. 111 at 33. While the record evidence reveals that Dobbs had familiarity with a

potential Nortrax venture prior to Gilfus’s disclosure of the Evaluation Materials, the

parties have not directed the Court to any evidence demonstrating that McNally was

already aware of the business opportunity. Thus, Gilfus’s bringing the business

opportunity to McNally is arguably a benefit. And, although McNally denies that it

participated in the ultimate venture, there is evidence that a McNally entity made a

small (3.9%) co-investment in the holding company that owns Dobbs’ interests in the

seven Nortrax dealerships. Doc. 131 ¶ 52. This too creates a disputed question of fact

as to whether Gilfus’s sharing the idea with McNally conferred a benefit on McNally

that it accepted.

As to whether it would be inequitable for McNally to retain the benefit without

paying for it, the Court similarly concludes that questions of fact remain. McNally

argues that Gilfus’s unclean hands preclude any finding of inequity or any recovery on

this claim.

The unclean hands doctrine is an equitable defense intended to discourage

unlawful activity. Bank of America, N.A. v. Pate, 159 So. 3d 383, 385 (Fla. 1st DCA

2015) (Thomas, J., specially concurring). It closes the doors of a court of equity when

a party has engaged in inequitable behavior or bad faith relative to the matter in which

it seeks relief. Id. (citing Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust

Co., 105 So. 3d 602 (Fla. 4th DCA 2013)). McNally argues that Gilfus, in preparing

the Evaluation Materials, used information Hollister stole from Nortrax. McNally

claims Gilfus turned a blind eye as to where the information came from

notwithstanding knowing that Hollister had provided it to McNally after he had been

terminated from Nortrax. It is undisputed that Gilfus used confidential information of

Nortrax and/or John Deere in creating the Evaluation Materials. Doc. 131 ¶ 24. Gilfus

testified he did not know how Hollister obtained the material. Doc. 113 at 29. In a

light favorable to Gilfus, disputed issues of fact exist as to whether it would be

inequitable for McNally to retain the benefit conferred and whether McNally’s unclean

hands defense wholly bars Gilfus’s claim.

The Eleventh Circuit has stated that for a defendant to avail itself of the doctrine

of unclean hands, it must satisfy two requirements:

First, the defendant must demonstrate that the plaintiff’s

wrongdoing is directly related to the claim against which it

is asserted. Keystone Driller Co. v. General Excavator Co., 290

U.S. 240, 245 (1933). Second, even if directly related, the

plaintiff’s wrongdoing does not bar relief unless the

defendant can show that it was personally injured by her

conduct. Mitchell Bros. Film Group v. Cinema Adult Theater,

604 F.2d 852, 863 (5th Cir. 1979), cert. denied, 445 U.S. 917

(1980).

Calloway v. Partners Nat. Health Plans, 986 F.2d 446, 450–51 (11th Cir. 1993). McNally

does not offer evidence that it was injured by Gilfus’s conduct.7

Accordingly, it is hereby

ORDERED:

1. Plaintiff’s Motion for Partial Summary Judgment (Doc. 88) is DENIED.

2. Defendant’s Motion for Summary Judgment (Doc. 89) is GRANTED-

IN-PART and DENIED-IN-PART. McNally’s motion is granted to the extent that

McNally is entitled to summary judgment in its favor on Plaintiff’s claims for breach

of contract in Count I, breach of fiduciary duty in Count II, and promissory estoppel

7 In its reply, McNally makes vague reference to Gilfus’s conduct wasting its time and risking

its relationships (Doc. 115 at 7), but McNally fails to direct the Court to any evidence to

support this blanket statement. See Doc. 62 at 7 (“Both the movant and the party opposing

summary judgment shall provide pinpoint citations to the pages and lines of the record

supporting each material fact.”).

in Count III of the Second Amended Complaint. McNally’s Motion for Summary

Judgment is denied as to Plaintiff's unjust enrichment claim in Count IV.

3. On or before December 30, 2022, the parties shall file a joint notice

advising the Court of the months in 2023 when they are available for trial of the

remaining unjust enrichment claim. Upon receipt of the notice, the Court will schedule

this case for trial.

4. The Clerk is directed to re-open this case.

DONE AND ORDERED in Tampa, Florida on December 12, 2022.

Chakene Thiarnds- Ho Ts pl uel

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, if any

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