Filed: Jan. 17, 2020
Latest Update: Jan. 17, 2020
Summary: MEMORANDUM OPINION AND ORDER ANDREW L. BRASHER , District Judge . This matter comes before the Court on Plaintiff's motion for partial summary judgment. (Doc. 147). Plaintiff seeks summary judgment on Counts I (breach of the employment agreement), II (breach of the restrictive covenants agreement), III (breach of the purchase agreement), IV (breach of fiduciary duty to JadeRisk, LLC), V (breach of fiduciary duty to TaylorChandler LLC), VI (negligence), and VIII (fraud), see Doc. 147 at 1
Summary: MEMORANDUM OPINION AND ORDER ANDREW L. BRASHER , District Judge . This matter comes before the Court on Plaintiff's motion for partial summary judgment. (Doc. 147). Plaintiff seeks summary judgment on Counts I (breach of the employment agreement), II (breach of the restrictive covenants agreement), III (breach of the purchase agreement), IV (breach of fiduciary duty to JadeRisk, LLC), V (breach of fiduciary duty to TaylorChandler LLC), VI (negligence), and VIII (fraud), see Doc. 147 at 17..
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MEMORANDUM OPINION AND ORDER
ANDREW L. BRASHER, District Judge.
This matter comes before the Court on Plaintiff's motion for partial summary judgment. (Doc. 147). Plaintiff seeks summary judgment on Counts I (breach of the employment agreement), II (breach of the restrictive covenants agreement), III (breach of the purchase agreement), IV (breach of fiduciary duty to JadeRisk, LLC), V (breach of fiduciary duty to TaylorChandler LLC), VI (negligence), and VIII (fraud), see Doc. 147 at 17-35, alleged in Defendants' Second Amended Counter-claim. See Doc. 89 at 14-21. Plaintiff also seeks summary judgement on Count IV (breach of the employment agreement), see Doc. 147 at 36-38, alleged in his Second Amended Complaint. See Doc. 82 at 27-28. After consideration, Plaintiff's motion is DENIED.
STANDARD
The court will grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). The moving party need not produce evidence disproving the opponent's claim; instead, the moving party must demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In turn, the nonmoving party must go beyond mere allegations to offer specific facts showing a genuine issue for trial exists. Id. at 324. When no genuine issue of material fact exists, the court determines whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
DISCUSSION
Plaintiff raises three arguments in his motion for summary judgment. None is persuasive.
First, Plaintiff says that he is due summary judgment on Counts I, II, V, and VI because Defendants have failed to adduce any evidence that would create a genuine issue of fact that Jarvis competed with them or encouraged their clients to leave them. See Doc. 147 at 15. In their opposition brief, Defendants cite a series of marketing activities and emails between Jarvis and clients of Defendants, which Defendants argue suggest that Jarvis competed with them. See Doc. 165 at 8-15. In Plaintiff's reply brief, he argues that Defendants construe this evidence as competition based on an incorrect reading of the non-competition agreement. See Doc. 177 at 4. The Court concludes that the activities alleged by Defendants are enough to create a genuine dispute of material fact as to whether Jarvis was engaged in competition in violation of the agreement. The correct interpretation of the agreements Jarvis signed and whether his activities breached those agreements are factual controversies that will be decided at trial.
Second, Plaintiff argues he is due summary judgment on Counts III, IV, and VIII because, despite Defendants' claim that Jarvis misrepresented that he could deliver 75 captives at the time of acquisition, "each of the Defendants have admitted via deposition that they knew that they were buying a company with approximately thirty-five clients." Doc. 147 at 16. Defendants argue that their testimony pertained only to "active captives under management," and that the 75 figure they expected was based on a series of communications leading up to the acquisition that discussed future captives committed to formation. See Doc. 165 at 40. In his reply brief, Plaintiff discussed one of those communications: in an email, Jarvis writes that "[i]f [Defendants] are concerned that we won't have 36-40 captive management clients by the end of the year, I would like to put you at ease." Doc. 177 at 2. Plaintiff fixates on the limited nature of that sentence. Defendants argue, however, that the number of captives under management is different than the number of captives that Plaintiff promised. There is a genuine issue of fact about the parties' reasonable expectations at the time of contracting that precludes summary judgment.
Third, Plaintiff asks that the Court grant a partial summary judgment on Count IV of his second amended complaint against Defendants. Plaintiff argues that there is no dispute he is owed $175,000 of deferred salary from 2016 and an additional $160,000 in captive origination bonuses. See Doc. 147 at 36-37. Defendants argue that "Plaintiff is not entitled to summary judgment on this claim because there is substantial evidence that he breached his employment agreement." See Doc. 165 at 2. Specifically, Defendants allege that Jarvis marketed captives through JarvisTower by distributing promotional material that he did not have permission to use and encouraging existing clients of Defendants to dissolve their captive insurance companies. See Doc. 165 at 20-26. Although, as Plaintiff points out in his reply brief, Defendants do not explicitly engage with his argument that the contract affords him deferred compensation, see Doc. 177 at 1, it is enough that Defendants have created an issue of genuine fact about whether Plaintiff breached the agreement, as a breach could excuse Defendants from their own performance under the contract.
CONCLUSION
Accordingly, Plaintiff's motion for summary judgment as to Counts I, II, III, IV, V, VI, and VIII of Defendant's Second Amended Counter-Claim, and partial summary judgement as to Count IV of his Second Amended Complaint, is DENIED.
DONE and ORDERED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Rev.: 3/2011
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
