# MaxRelief USA Inc v. O'Maley

> District Court, S.D. Ohio · January 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10384066

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** January 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
MAXRELIEF USA, INC., : Case No. 1:21-cv-755
Plaintiff, Judge Matthew W. McFarland
¥ :
JOHN O’MALEY d/b/a JOHN O’MALEY
AND ASSOCIATES
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant’s Motion for Summary Judgment
(Doc. 53). Plaintiff filed a Response in Opposition (Doc. 55), to which Defendant filed a
Reply in Support (Doc. 57). Thus, this matter is ripe for the Court’s review. For the reasons
below, Defendant’s Motion for Summary Judgment (Doc. 53) is GRANTED.
FACTS AND PROCEDURAL HISTORY
This case arises from a contract dispute between Plaintiff MaxRelief USA, Inc. and
Defendant John O’Maley, doing business as John O’Maley and Associates. (Compl., Doc.
1, 8.) MaxRelief manufactures and distributes topical pain relief products for muscle or
joint pain. (Id. at § 1.) MaxRelief is a Delaware corporation with its principal place of
business in San Francisco, California. (Id.) MaxRelief is owned by Peter Spoto, who also
serves as the Chief Executive Officer. (Spoto Decl., Doc. 55-2, Pg. ID 485; Spoto Dep., Doc.
54-1, Pg. ID 431.) John O’Maley and Associates is a national sales and marketing

consultant business owned by John O’Maley. (O’Maley Decl., Doc. 53-3, Pg. ID 407.)
O’Maley operates his business in his home state of Ohio. (Id.)
On April 21, 2016, Spoto contracted with O’ Maley for O’Maley to help launch two
MaxRelief products— MaxRelief pain medication and Lil’ Giggles. (Contract, Doc. 53-3,
Pg. ID 410-11; Spoto Dep., Doc. 54-1, Pg. ID 429-30.) O’Maley negotiated, executed, and
allegedly performed the Contract in Ohio. (O’Maley Decl., Doc. 53-3, Pg. ID 407.) Under
the Contract, O’Maley agreed to “hire, train [and] manage sales agencies for distribution
of [MaxRelief] product.” (Contract, Doc. 53-3, Pg. ID 410.) O’Maley acted as a “master
broker” under the Contract, as he was responsible for managing other brokers selling
MaxRelief products. (Spoto Decl., Doc. 55-2, Pg. ID 485.) The Contract did not guarantee
that O’Maley’s efforts would translate to a successful launch of MaxRelief’s products.
(Spoto Dep., Doc. 54-1, Pg. ID 433.)
The parties agreed to a payment structure for the sales agencies: “[MaxRelief] shall
compensate sales agencies 5% commission on net sales [and O’Maley] will not be
responsible for payment.” (Contract, Doc. 53-3, Pg. ID 410.) The Contract also specified
compensation for O’Maley. In return for O’Maley’s services, MaxRelief agreed to pay him
$2,000 on or before May 15, 2016, $2,000 on or before June 15, 2016, $7,000 each month
from July 15 through September 15 of 2016, and $5,000 each month after September 15,
2016. (Id.) MaxRelief also agreed to pay O’Maley 4% commission on net sales. (Id.)
The parties dispute whether O’Maley hired, trained, and managed sales agencies.
(Response, Doc. 55-1, Pg. ID 482.) The record includes declarations from three sales
agencies relevant to this dispute. Frank Parise, President of Performance Sales &

Marketing, declared that “Mr. O’Maley hired and trained me and Performance Sales &
Marketing on the products that MaxRelief sells.” (Parise Decl., Doc. 53-5, Pg. ID 419.)
Next, Paul Wendling, the sole proprietor of North Coast Sales & Marketing, declared that
“O’Maley contacted me to sell MaxRelief products, informed me about their products,
shared presentations and shared information he received at trade shows so I could follow
up with accounts.” (Wendling Decl., Doc. 53-6, Pg. ID 421.) Lastly, Thomas Goforth, who
previously worked for the brokerage firm Arena Inc., had a professional relationship with
O’Maley for several years. (Goforth Decl., Doc. 53-4, Pg. ID 415.) Goforth attached a letter
to his declaration that describes his training and work with O’Maley to launch MaxRelief
products. (Id.) The letter describes that O’Maley prepared Goforth to present MaxRelief
products to Walmart and recounts how Walmart responded to Goforth’s multiple
contacts with them about the products. (Id. at Pg. ID 417.)
Spoto does not dispute that O’Maley engaged with “commission-only brokers
who only get paid if they sell.” (Spoto Decl., Doc. 55-2, Pg. ID 486.) Rather, Spoto declares
that a commission-only arrangement does not constitute “hiring” within the brokerage
and distribution industry for personal care products. (Id.) According to Spoto, “[a]
‘hiring’ is consummated when a master broker pays a broker to distribute its product.”
(Id.)
On March 12, 2021, MaxRelief filed the present action in the United States District
Court for the Northern District of Texas. (See Complaint, Doc. 1.) The case was transferred
to this Court on December 6, 2021. (See Transfer, Doc. 27.) MaxRelief brings three causes
of action. First, under a breach of contract claim, MaxRelief alleges that O’ Maley failed to

adequately hire, train, and manage sales agencies as set forth in the Contract. (Complaint,
Doc. 1, § 16.) Second, under a Texas deceptive trade practices law claim, MaxRelief
alleges that O’Maley “made false, misleading, and deceptive statements to MaxRelief that
he was taking the necessary effort to hire, train, and manage certain sales agencies to sell
the MaxRelief products and that the MaxRelief products were well-received by
distributors.” (Id. at { 23.) Third, under an unjust enrichment claim, MaxRelief alleges
that O’Maley was unjustly enriched by retaining $60,000 in compensation while not
performing under the Contract. (Id. at J 29.)
LAW
Courts must grant summary judgment if the record “reveals that there is no
genuine issue as to any material fact and the moving party is entitled to a judgment as a
matter of law.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Fed. R.
Civ. P. 56(c)). Once the movant has met its initial burden of showing that no genuine issue
of material fact remains, the nonmoving party must present “specific facts showing that
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To do so, the nonmovant must present “significant probative evidence ... on which a
reasonable jury could return a verdict” in their favor. Chappell v. City of Cleveland, 585
F.3d 901, 913 (6th Cir. 2009) (citation omitted).
The court must view “the facts and any inferences that can be drawn from those
facts... in the light most favorable to the nonmoving party.” Bennett v. City of Eastpointe,
410 F.3d 810, 817 (6th Cir. 2005). This requirement, however, does not mean that the Court
must find a factual dispute where record evidence contradicts unsupported

allegations. “The ‘mere possibility’ of a factual dispute is not enough.” Mitchell v. Toledo
Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citation omitted). “If the moving party fulfills its
burden of demonstrating that no genuine issue of material fact exists, the nonmoving
party, to receive a trial, must present some significant probative evidence creating a
factual issue.” Stratienko v. Cordis Corp., 429 F.3d 592, 597 (6th Cir. 2005).
ANALYSIS
O’Maley moves for summary judgment on all counts, arguing that there is no
genuine issue of material fact that O’Maley (1) did not breach the Contract, (2) did not
make any false, misleading, or deceptive statements, and (3) was not unjustly enriched.
(Summary Judgment, Doc. 53, Pg. ID 391.) The Court will consider each argument in turn.
I. Breach of Contract Claim
O’Maley first argues that he is entitled to summary judgment on MaxRelief’s
breach of contract claim. To succeed on a breach of contract claim under applicable Ohio
law,! the plaintiff must show that “(1) a contract existed, (2) one party fulfilled his
obligations, (3) the other party failed to fulfill his obligations, and (4) damages resulted
from that failure.” Blake Homes, Ltd. v. FirstEnergy Corp., 877 N.E.2d 1041, 1052 (Ohio Ct.
App. Sept. 7, 2007) (citation omitted). Here, only the third element is disputed. MaxRelief

1 The Contract does not specify what substantive law applies. Thus, the Court turns to Ohio's
choice of law rules, which “require a court to apply the law of the state with the most significant
relationship to the contract.” Int’l Ins. Co. v. Stonewall Ins. Co., 86 F.3d 601, 604 (6th Cir. 1996).
Because O’ Maley allegedly performed the Contract in Ohio and resides in Ohio, the Court applies
Ohio law. (O’Maley Decl., Doc. 53-3, Pg. ID 407; Compl., Doc. 1, { 2.)

alleges that O’Maley failed to adequately hire, train, and manage sales agencies under
the Contract. (Compl., Doc. 1, J 16.)
O’Maley maintains that there is no genuine dispute that O’Maley hired sales
agencies. As support, O’Maley points to the declarations from three brokers. Frank
Parise—the President of Performance Sales & Marketing— declared that “Mr. O’Maley
hired and trained me and Performance Sales & Marketing on the products that MaxRelief
sells.” (Parise Decl., Doc. 53-5, Pg. ID 419.) Similarly, Paul Wendling — the sole proprietor
of North Coast Sales & Marketing—declared that “O’Maley contacted me to sell
MaxRelief products, informed me about their products, shared presentations and shared
information he received at trade shows so I| could follow up with accounts.” (Wendling
Decl., Doc. 53-6, Pg. ID 421.) Thomas Goforth— who previously worked for the brokerage
firm Arena Inc. — attached a letter to his declaration that describes how O’Maley prepared
Goforth to present MaxRelief products to Walmart and recounts how Walmart
responded to Goforth’s multiple contacts concerning the products. (Goforth Decl., Doc.
53-4, Pg. ID 415, 417.) Considering the collection of declarations, O’Maley easily meets
his initial burden of demonstrating that there is no genuine issue of dispute that he hired,
trained, and managed sales agencies for distribution of MaxRelief products.
Because O’ Maley met his burden, the burden shifts to MaxRelief to “present some
significant probative evidence creating a factual issue.” Stratienko v. Cordis Corp., 429 F.3d
592, 597 (6th Cir. 2005). MaxRelief points to Spoto’s declaration, in which he asserts that
O’Maley never hired brokers. (Spoto Decl., Doc. 55-2, Pg. ID 486.) Spoto states that
O’Maley “engage[d] with commission-only brokers who only get paid if they sell.” (Id.)

This is problematic, in Spoto’s estimation, because a “commission-only arrangement is
not considered ‘hiring’ by the brokerage/distribution industry for personal care
products.” (Id.) In response, O’Maley contends that the contractual term “hire” includes
commission-based brokers.
Thus, the operative question here is how to interpret the word “hire” within the
Contract. As the Sixth Circuit has explained, “disputed issues of contractual
interpretation can be resolved at summary judgment on the basis that they are questions
of law.” B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 595 (6th Cir. 2001) (emphasis
omitted). “In a contract dispute, summary judgment is permissible when the contractual
language of the contract is unambiguous, or, if the language is ambiguous, where
extrinsic evidence leaves no genuine issue of material fact and permits contract
interpretation of the agreement as a matter of law.” Klopfenstein v. Fifth Third Bank, No.
1:12-CV-851, 2023 WL 3250622, at *3 (S.D. Ohio Mar. 29, 2023) (quotation omitted). A
contract is ambiguous only if “its meaning cannot be determined from the four corners
of the agreement or where the language is susceptible of two or more reasonable
interpretations.” EnQuip Techs. Grp. v. Tycon Technoglass, 986 N.E.2d 469, 475 (Ohio Ct.
App. Dec. 28, 2012) (quotations omitted). Courts construe contractual terms within the
broader context of surrounding contractual language. Id.
The Court begins with the contractual language in question. O’Maley agreed to
“hire, train [and] manage sales agencies for distribution of [MaxRelief] product.”
(Contract, Doc. 53-3, Pg. ID 410.) The term “hire” is undefined in the Contract.
“TC]ommon, undefined words appearing in a written instrument ‘will be given their

ordinary meaning unless manifest absurdity results, or some other meaning is clearly
evidenced from the face or overall contents of the instrument.” State ex rel. Petro v. R.].
Reynolds Tobacco Co., 820 N.E.2d 910, 915 (Ohio Ct. App. Dec. 30, 2004) (quoting Alexander
v. Buckeye Pipe Line Co., 374 N.E.2d 146, 150 (Ohio 1978)).
Within context, the Court finds the term “hire” to unambiguously include
commission-based hiring. Perhaps most tellingly, the sentence immediately following the
“hiring” language reads, “[MaxRelief] shall compensate sales agencies 5% commission
on net sales [and O’ Maley] will not be responsible for payment.” (Contract, Doc. 53-3, Pg.
ID 410.) In other words, the parties explicitly agreed that the sales agencies hired by
O’Maley would receive commissions from MaxRelief—not payment from O’Maley.
Therefore, concluding that “hire” excludes commission-based hiring would contradict
the plain language of the Contract.
The Court's conclusion would remain unchanged even without this compensation
language. Courts traditionally turn to dictionaries to determine the plain meaning of
undefined terms in a contract. Vandercar, LLC v. Port of Greater Cincinnati Dev. Auth., 196
N.E.3d 878, 886 (Ohio Ct. App. Sept. 9, 2022). The Merriam-Webster dictionary defines
the verb “hire” as (1) to engage the personal services of for a set sum; (2) to engage the
temporary use of for a fixed sum; (3) to grant the personal services of or temporary use
of for a fixed sum; or (4) to get done for pay. Hire, Merriam-Webster Dictionary, Merriam-
webster.com, https://www.merriam-webster.com/ dictionary / hire (last visited Nov. 29,
2023). Given these expansive definitions, personal services in exchange for fixed
commission-based pay comfortably falls within the plain meaning of “hire.”

Nevertheless, MaxRelief maintains that “hire” has a special meaning within the
brokerage and distribution industry for personal care products. (Response, Doc. 55, Pg.
ID 477; Spoto Decl., Doc. 55-2, Pg. ID 486.) But courts only consider evidence of trade
usage within an industry to ascertain the meaning of an ambiguous term. Maverick Oil &
Gas, Inc. v. Barberton City Sch. Dist. Bd. of Edn., 872 N.E.2d 322, 328 (Ohio Ct. App. Apr. 11,
2007). “It is well-settled that although extrinsic evidence of a general custom or trade
usage cannot vary the terms of an express contract, such evidence is permissible to show
that the parties to a written agreement employed terms having a special meaning within
a certain geographic location or a particular trade or industry, not reflected on the face of
the agreement.” Alexander v. Buckeye Pipe Line Co., 374 N.E.2d 146, 151 (Ohio 1978).
Because the term “hire” unambiguously includes commission-based hiring,
potential trade usage of the term is beyond the scope of this Court’s inquiry. Spoto’s
assertion that O’Maley engaged with commission-only brokers paid after the fact fails to
demonstrate that O’Maley breached the Contract by not hiring sales agencies. In fact, this
precise arrangement appears to have been contemplated by the parties through the
payment structure detailed in the Contract. Thus, the Court is unpersuaded by
MaxRelief’s argument and finds that there is no genuine dispute that O’ Maley hired sales
agencies in accordance with the Contract.? O’Maley is entitled to summary judgment on
MaxRelief’s breach of contract claim.

2 MaxRelief also contends that it suffered at least $60,000 in damages from the alleged breach of
contract. (Response, Doc. 55-1, Pg. ID 483.) In contrast, O’Maley argues that MaxRelief can only
recover up to $45,000. (Reply, Doc. 57, Pg. ID 493.) Because O’Maley is entitled to summary
judgment on the breach of contract claim, this dispute is moot.

II. Deceptive Trade Practices and Unjust Enrichment Claims
O’Maley also argues that summary judgment is appropriate as to the deceptive
trade practices and unjust enrichment claims. (See Summary Judgment, Doc. 53-1, Pg. ID
396-400.) MaxRelief fails to address O’Maley’s arguments—let alone even mention the
claims themselves—in its response. (See Response, Doc. 55.) Sixth Circuit precedent is
clear: “a plaintiff is deemed to have abandoned a claim when a plaintiff fails to address
it in response to a motion for summary judgment.” Brown v. VHS of Mich., Inc., 545 F.
App’x 368, 372 (6th Cir. 2013) (collecting cases); see also Southward v. FedEx Freight, Inc., 98
F. Supp. 3d 926, 933 (S.D. Ohio 2014) (granting summary judgment because nonmoving
party failed to make an argument in opposition). MaxRelief has therefore abandoned its
deceptive trade practices and unjust enrichment claims, and O’Maley is entitled to

summary judgment on each claim as a matter of law.
CONCLUSION
For the reasons above, the Court GRANTS Defendant's Motion for Summary
Judgment (Doc. 53). This case shall be TERMINATED from the Court’s docket.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
“Heke W galad
By: sis
JUDGE MATTHEW W. McFARLAND

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10384066. Public record. Not legal advice.