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ConcealFab Corp. v. Sabre Industries, Inc.

United States District Court, D. Colorado

December 11, 2017

CONCEALFAB CORPORATION, a Colorado corporation, Plaintiff,
v.
SABRE INDUSTRIES, INC., a Delaware corporation, and MIDWEST UNDERGROUND TECHNOLOGY, INC., an Illinois corporation, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

          CHRISTINE M. ARGUELLO United States District Judge.

         This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment (Doc. # 94) and Defendants' Motion for Partial Summary Judgment (Doc. # 97). For the reasons discussed herein, the Court grants Plaintiff's Motion for Partial Summary Judgment, and grants in part and denies in part Defendants' Motion for Partial Summary Judgment.

         I. BACKGROUND

         The following facts are undisputed. Plaintiff ConcealFab Corporation (“ConcealFab”) and Defendants Sabre Industries, Inc. and Midwest Underground Technology, Inc. (collectively, “Sabre”) participate in the small cell, distributed antenna system (“DAS”), and outdoor distributed antenna system (“oDAS”) segments of the telecommunications market. In 2014, the parties began discussions to merge their businesses and, thereafter, negotiated several contracts, including a Mutual NonDisclosure Agreement (“NDA”), a Term Sheet, an Interim Plan/Licensing Operating Agreement (“LOA”), and an Employment Agreement between ConcealFab's CEO and Sabre. The NDA, Term Sheet, and LOA were executed on August 4, 2014, February 3, 2015, and March 13, 2015, respectively. The Employment Agreement, however, was never fully executed. (Doc. # 97 at 4.)

         On May 27, 2015, Sabre recorded a UCC-1 Financing Statement (“UCC Lien”) with the Colorado Secretary of State encumbering ConcealFab's intellectual property. On May 28, 2015, Sabre delivered to ConcealFab a draft promissory note pursuant to which ConcealFab committed to paying $621, 559.30 to Sabre. ConcealFab refused to sign the note. On June 3, 2015, Sabre terminated the LOA, which effectively dissolved the parties' cooperative arrangement. On July 24, 2015, ConcealFab demanded that Sabre terminate its UCC Lien, but Sabre refused to do so.

         The operative complaint in this case is ConcealFab's First Amended Complaint, filed on June 13, 2016. (Doc. ## 1, 68.) ConcealFab alleges that Sabre never intended to complete the merger contemplated by the Term Sheet and used the LOA as a means of obtaining access to ConcealFab's confidential and propriety information in order to unfairly compete with ConcealFab. (Id.) Specifically, ConcealFab's Amended Complaint alleges the following claims: (1) breach of contract - NDA; (2) breach of contract - LOA; (3) breach of implied covenant of good faith and fair dealing; (4) breach of fiduciary duty; (5) misappropriation of trade secrets; (6) tortious interference with contractual relationships; (7) tortious interference with prospective business relations; (8) trade disparagement; (9) declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 that the UCC Lien is invalid; (10) fraud in the inducement; (11) unjust enrichment; and (12) breach of contract - Employment Agreement. (Doc. # 68.)

         On July 5, 2016, Sabre filed its Answer, denying every allegation. (Doc. # 70.) Sabre brings counterclaims against ConcealFab for (1) fraudulent inducement; (2) unjust enrichment; (3) trade disparagement; (4) tortious interference with contractual relations; and (5) breach of contract - LOA. (Id.)

         On April 28, 2017, ConcealFab moved for partial summary judgment on its declaratory judgment claim (Claim 9) and Sabre's fraudulent inducement claim (Counterclaim 1). (Doc. # 94.) Also on April 28, 2017, Sabre moved for partial summary judgment on its breach of LOA counterclaim (Counterclaim 5) and all of ConcealFab's claims (Claims1-8, 10, 12), except the claims for unjust enrichment and declaratory judgment (Claims 9, 11). (Doc. # 97.) Both motions are ripe for determination.

         II. STANDARD OF REVIEW

         When reviewing a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Hinsdale v. City of Liberal, 19 F. App'x 749, 754 (10th Cir. 2001). Summary judgment is warranted when the movant shows that there is no genuine issue as to a material fact and the movant is entitled to judgment as a matter of law. DP-Tek, Inc. v. AT&T Glob. Info. Sols. Co., 100 F.3d 828, 831 (10th Cir. 1996). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). A fact is “material” if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001).

         The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). In attempting to meet this standard, however, a movant that does not bear the ultimate burden of persuasion at trial does not need to disprove the non-moving party's claim. Rather, the movant need simply point out to the Court a lack of evidence for the non-moving party on an essential element of that party's claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). After the movant has met its initial burden, the non-moving party must provide “significantly probative evidence” that would support a verdict in its favor. Jaramillo v. Adams Cty. Sch. Dist. 14, 680 F.3d 1267, 1269 (10th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).

         III. ANALYSIS

         Upon review of the parties' briefing and the evidence referenced therein, the Court finds that disputed issues of material fact preclude the Court from granting summary judgment as to all claims, except the three discussed below.

         A. PLAINTIFF'S MOTION FOR ...


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