United States District Court, D. Colorado
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 ...