GeoMetWatch v. Behunin ( 2022 )

FILED
Appellate Case: 19-4130 Document: 010110703167 United States CourtPage:
Date Filed: 06/29/2022 of Appeals
1
Tenth Circuit
June 29, 2022
PUBLISH Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
GEOMETWATCH CORP., a Nevada
corporation,
Plaintiff Counter Defendant -
Appellant,
v. No. 19-4130
ROBERT T. BEHUNIN, an individual;
CURTIS ROBERTS, an individual;
SCOTT JENSEN, an individual; ALAN
E. HALL, an individual; ISLAND PARK
GROUP OF COMPANIES, a Utah
limited liability company; TEMPUS
GLOBAL DATA, a Delaware
corporation,
Defendants - Appellees,
UTAH STATE UNIVERSITY
ADVANCED WEATHER SYSTEMS
FOUNDATION, a Utah corporation;
UTAH STATE UNIVERSITY
RESEARCH FOUNDATION, a Utah
corporation, d/b/a Space Dynamics
Laboratory,
Defendant Counterclaimants -
Appellees,
and
UTAH STATE UNIVERSITY, a state
university; ERIN HOUSLEY, an
individual; MARK HURST, an
Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 2
individual; DEBBIE WADE, an
individual; BRENT KELLER, an
individual,
Defendants,
v.
DAVID CRAIN,
Third-Party Defendant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 1:14-CV-00060-JNP)
James E. Magleby (Peggy Tomsic, Adam A. Alba, Yevgen Kovalov, with him on
the briefs), Magleby Cataxinos & Greenwood, Salt Lake City, Utah, for Plaintiff-
Appellant.
David W. Tufts (David L. Arrington and Matthew J. Orme, with him on the brief),
Durham Jones & Pinegar, Salt Lake City, Utah, for Defendants-Appellees Alan E.
Hall, Tempus Global Data, Inc., and Island Park Group of Companies, LLC.
Joshua D. Davidson, Assistant Utah Solicitor General (Peggy E. Stone, Assistant
Utah Solicitor General with him on the brief), Utah Attorney General’s Office,
Salt Lake City, Utah, for Defendants-Appellees Utah State University Research
Foundation, Robert T. Behunin, and Curtis Roberts.
Beth J. Ranschau, Ray Quinney & Nebeker P.C. (Arthur B. Berger, Ray Quinney
& Nebeker P.C. and Ryan B. Bell, Kunzler Bean & Adamson, P.C. with her on
the brief), Salt Lake City, Utah, for Defendants-Appellees Utah State University
Advanced Weather Systems Foundation and Scott Jensen.
Before HOLMES and KELLY, Circuit Judges, and LUCERO, Senior Circuit
Judge.
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HOLMES, Circuit Judge.
Plaintiff-Appellant GeoMetWatch Corporation, (“GMW”) appeals from
several district court orders granting summary judgment to Defendant-Appellees
Alan Hall, Erin Housley, Brent Keller, Mark Hurst, Debbie Wade, Island Park
Investments, and Tempus Global Data, Inc. (collectively, the “Hall Defendants”); 1
Utah State University Advanced Weather Systems Foundation (“AWSF”) and
Scott Jensen (collectively, the “AWSF Defendants”); 2 and Utah State University
Research Foundation (“USURF”), Robert Behunin, and Curtis Roberts
(collectively, the “USURF Defendants”). 3
The instant lawsuit was borne out of the collapse of a venture GMW
entered into that was created for the purpose of constructing and deploying a
1
Mr. Hall is an individual who was previously connected to GMW’s
failed joint venture at issue here. See Hall Defs.’ Resp. Br. at 14, 29. Ms.
Housley, Mr. Keller, Mr. Hurst, and Ms. Wade are alleged to be “members of Mr.
Hall’s team.” GeoMetWatch Corp. v. Hall, No. 1:14-00060-JNP, 2018 WL
6240991, at *5 n.7 (D. Utah Nov. 27, 2018).
2
Mr. Jensen “is an aerospace engineer and AWSF’s former director
who spent 20 years building his career at [Utah State University (“USU”)] and its
subsidiary foundations,” including Utah State University Research Foundation or
USURF, which is another defendant-appellee in this appeal. AWSF Defs.’ Resp.
Br. at 1.
3
During the time of the relevant events, Mr. Roberts was the “Senior
Associate Vice President for Commercialization and University Advancement at
USU,” while Mr. Behunin was the “Vice President for Advancement and
Commercialization.” USURF Defs.’ Resp. Br. at 5–6.
3
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satellite-hosted weather sensor system. GMW describes this as a “trade secrets”
case, alleging that all Defendants, led by Mr. Hall, conspired to drive GMW out
of business on the eve of this successful and groundbreaking weather forecasting
venture by stealing its confidential and trade secret information, forming a
competing business, and pulling out of agreements that Mr. Hall made with
GMW.
The district court granted summary judgment to the Hall Defendants on an
array of claims. That judgment was primarily based on an overarching deficiency
in GMW’s case, namely, a lack of non-speculative and sufficiently probative
evidence of a causal nexus between Defendants’ alleged bad acts and GMW’s
asserted damages. The court also granted summary judgment in favor of USURF,
AWSF, and Mr. Roberts because they are allegedly immune from lawsuit under
the Utah Governmental Immunity Act (“UGIA”). Subsequently, the court granted
summary judgment to Mr. Jensen and Mr. Behunin on all claims, concluding
generally that GMW’s showing of causation also was deficient as to them. The
court likewise awarded partial summary judgment to AWSF on its
breach-of-contract counterclaim against GMW, effectively denying GMW’s
cross-motion for summary judgment and affirmative defenses.
GMW avers that the district court’s decisions were all made in error,
raising three issues on appeal: First, whether the district court erred by granting
summary judgment to the Hall Defendants based on GMW’s lack of
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non-speculative causation evidence; second, whether the court erred by granting
summary judgment to USURF, AWSF, and Mr. Roberts on the basis of
governmental immunity under Utah law; and third, whether the court erred by
granting partial summary judgment to AWSF on its counterclaim and by denying
GMW’s cross-motion for summary judgment. We conclude that GMW’s
arguments are either unpreserved or unavailing. As a result, we affirm the
district court’s decisions.
I
A
This suit stems from the failed development of a weather-detecting satellite
sensor system. One of the players in this failed venture, USURF, developed a
weather system sensor called the Geosynchronous Imaging Fourier Transform
Spectrometer—or the GIFTS sensor—in the early 2000s. The GIFTS sensor was
funded by the National Aeronautics and Space Administration (“NASA”) and the
National Oceanic and Atmospheric Administration (“NOAA”). It possessed the
ability to provide high-resolution atmospheric data that could be used to improve
weather forecasting.
In 2008, David Crain and Gene Pache founded GMW, a Nevada
corporation, with a vision of employing sensors like GIFTS to provide proprietary
weather data for sale. To this end, GMW discussed building a commercial
version of the GIFTS sensor with USURF. USURF eventually agreed to build
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this commercial version, which was called the Sounding and Tracking
Observatory for Regional Meteorology—or the STORM sensor. GMW and
USURF thus entered into a Preferred Service Provider Agreement (“PSPA”) to
put onto paper their agreement. Along the way, GMW obtained a verbal
commitment from NASA that GMW could have the GIFTS sensor—and, in
September 2010, GMW became the first company to obtain a remote sensing
license from NOAA, which would allow GMW to operate up to six GIFTS or
STORM-type sensors in orbit and commercialize the resulting weather-related
data.
GMW sought out potential customers for data gathered from the STORM
sensor throughout 2011. GMW was largely unable to secure firm purchase
commitments. The only agreement it entered into, beyond letters of intent, was a
non-binding License and Services Agreement with a Chinese data company. But
while this Agreement reflected a willingness on the Chinese company’s part to
purchase $8.9 million worth of weather data per month, the contract the company
eventually entered into with GMW only obligated it to purchase a significantly
lower amount: $300,000 worth of weather data per month.
In early 2012, GMW began discussions with AsiaSat, a Hong Kong-based
foreign entity in the business of operating commercial satellites. The discussions
concerned AsiaSat hosting the STORM sensor on its AsiaSat 9 satellite.
Significantly, the parties discussed the possibility of AsiaSat using its balance
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sheet to secure a loan of roughly $170 million from the Export-Import Bank
(“EXIM Bank”). GMW would then use the loan proceeds to build the STORM
sensor.
The EXIM Bank “provides financing to international borrowers who buy
export goods from the United States.” GeoMetWatch Corp. v. Hall,
No. 1:14-00060-JNP, 2018 WL 6240991, at *2 n.4 (D. Utah Nov. 27, 2018)
(emphasis added). The bank therefore could not structure a loan where GMW
would be the borrower because it was a domestic entity; AsiaSat, as the foreign
entity, would need to submit the loan application and be the borrower. This
arrangement, however, would expose AsiaSat to significant potential financial
liability given the high costs of the STORM project. See id. at *2 (“AsiaSat was
concerned about its ‘exposure’ in doing a deal with [GMW] . . . . [and] was
worried that it would take out a loan with EXIM Bank, [GMW’s] business would
fail, and AsiaSat ‘would be on the hook to pay off the debt.’”).
On April 3, 2013, GMW and AsiaSat executed a formal Cooperation
Agreement, which reflected some of AsiaSat’s concerns regarding the EXIM
Bank’s loan process. Under the Cooperation Agreement, GMW was required to
meet two conditions before AsiaSat was required to seek out a loan with the
EXIM Bank: (1) provide a guarantee, or “backstop,” and (2) provide a
Convertible Note. Section 2.2.1 of the Cooperation Agreement outlined these
conditions precedent:
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2.2.1 Conditions to Obligations of AsiaSat . . . . The
obligations of AsiaSat . . . to consummate the transactions
contemplated by this [Cooperation] Agreement shall be subject
to the fulfillment or AsiaSat’s . . . waiver of each of the
following conditions: . . .
(b) AsiaSat . . . shall have received from GMW the
Convertible Note duly executed by an authorized officer of
GMW, which Convertible Note shall be in full force and effect
on the Effective Date;
(c) AsiaSat . . . shall have received legally valid and
binding guarantees and/or other credit support (including letters
of credit) in favor of AsiaSat . . . given by a guarantor (or bank,
in the case of letters of credit) acceptable to AsiaSat . . . in [its]
sole and absolute discretion and, in each case, in form and
substance satisfactory to AsiaSat . . . in [its] sole and absolute
discretion, which shall guarantee the full performance and
payment of the obligations of GMW . . . .
Aplt.’s App., Vol. 13, at 2868 (Cooperation Agreement between AsiaSat and
GMW, dated Apr. 3, 2013). Under Article 15.1.1(g) of the Cooperation
Agreement, AsiaSat could terminate the agreement “at any time after the Cut-off
Time”—i.e., July 31, 2013—“by written notice to GMW, if the conditions set
forth in Article 2.2.1 . . . [were] not fulfilled on or prior to the Cut-off Time.” Id.
at 2895. The Cut-off Time also could be modified by a written agreement
between the parties.
The guarantee, or “backstop,” in Article 2.2.1(b) was intended to protect
AsiaSat’s financial interests in the event GMW would be unable to pay off the
loan, and it was a critical facet of AsiaSat’s agreement and relationship with
GMW. See GeoMetWatch, 2018 WL 6240991, at *2; see also id. at *3 (“The
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CEO of AsiaSat described [GMW’s] obligation to provide a guarantee or backstop
for the Proposed EXIM Loan as ‘the basis for the agreement’ and a ‘key element’
of the Cooperation Agreement,” and GMW “understood that obtaining a guarantee
or backstop for the . . . Loan was ‘critical’ to AsiaSat.”). But the Convertible
Note—which was intended to provide AsiaSat with a way to obtain equity in
GMW—proved controversial. Specifically, GMW’s attorneys objected to GMW
issuing the Convertible Note because it would make the STORM sensor the
collateral for the EXIM loan, which NOAA would not accept. As a consequence,
GMW refused to issue the Convertible Note, viewing it as too onerous, despite
such issuance being included as an express condition in the Cooperation
Agreement and AsiaSat’s insistence that it receive the Convertible Note before
further pursuing the loan from the EXIM Bank.
While it was working with AsiaSat, GMW terminated the PSPA with
USURF and, in turn, entered into a Preferred Provider Agreement (“PPA”) with
AWSF—USURF’s subsidiary— in April 2013. Among other things, the PPA
obligated GMW to maintain and fulfill a soon-to-be entered contract with AWSF
called the STORM 001 Contract, to be executed in October 2013. Included
within the scope of maintenance and fulfillment under the contracts was
compliance by GMW with the STORM 001 Contract’s payment schedule. Failure
to comply with this schedule was considered a “default” under the PPA. In the
event of default, AWSF was authorized to terminate the PPA by giving written
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notice and a thirty-day cure period to GMW. If, after thirty days, GMW had not
cured the default, the PPA would be terminated.
As contemplated in the PPA, GMW and AWSF executed the STORM 001
Contract on October 4, 2013. The payment schedule in this agreement required
GMW to make an initial payment of $5,384,022 to AWSF on January 6, 2014,
toward a total payment of $124,933,872; the balance remaining after the
$5,384,022 payment would come later. GMW knew that AWSF would be unable
to build the STORM sensor unless it received the payment. Like the PPA, the
STORM 001 Contract considered GMW’s failure to make a payment when due a
“default,” and AWSF was empowered to discontinue its performance and
terminate the agreement in the event of default.
GMW and AWSF also executed on the same day the STORM 002 Contract
for “Field Support” of the sensor system. Per the STORM 002 Contract, GMW
was required to initially pay AWSF $27,131 by February 4, 2014, toward a total
payment of $26,509,120, which was scheduled to be paid in full later. In sum,
under these two STORM Contracts (collectively, the “Build Agreements”), GMW
was required to ensure adequate funding to comply with the payment schedules
contemplated. And GMW’s failure to make any milestone payments would
amount to an “Event of Default,” entitling AWSF to immediately cease
performance and terminate the Build Agreements.
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For its part, AsiaSat commenced the EXIM Bank’s loan process in early
2013. But by July 2013, “it became apparent that [GMW] would not be able to
provide a guarantee or backstop for the Proposed EXIM Loan before the July 31,
2013, Cut-off Time.” Id. at *4. In light of this, AsiaSat informed GMW that it
was not going to submit the Proposed EXIM Loan to the EXIM Bank for
approval. Hoping they could continue working towards a mutual goal, however,
AsiaSat and GMW extended the Cut-off Time to September 30, 2013. AsiaSat
informed GMW that the “only outstanding thing” was the guarantee, and that it
would resume the EXIM loan process once it got more clarity on this issue. Id.;
see id. (excerpting an email from AsiaSat’s CEO to GMW in which the CEO
stated that AsiaSat suspended the EXIM loan process “until [it] ha[d] the
guarantee sorted out” and that the “key driver [was] still the guarantee”).
By August 2013, though, GMW still had not provided the required
guarantee or the Convertible Note, leading AsiaSat to halt the EXIM loan process
entirely. And while GMW discussed alternatives to the Article 2.2.1 conditions,
AsiaSat never agreed to any.
In September 2013, still awaiting GMW’s fulfillment of the conditions
precedent, AsiaSat agreed to extend the Cut-off Time once again, pushing the
cut-off to November 30, 2013. A week before this extended cut-off, on
November 24, 2013, GMW reached out to AsiaSat and asked if there was an
alternative way to structure their deal—that is, alternatives to the Article 2.2.1
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conditions—and if AsiaSat could support AWSF for a few months. AsiaSat,
again, reiterated it needed the guarantee, as provided in the Cooperation
Agreement, before it would resume the loan process. November 30, 2013, came
and went without GMW’s performance of the Article 2.2.1 conditions, and
AsiaSat, accordingly, declined to proceed further.
While AsiaSat was waiting for GMW to fulfill its contractual obligations,
GMW’s attorney introduced GMW’s then-CEO to Mr. Hall on September 20,
2013. AWSF and USURF had encouraged GMW to meet with Mr. Hall, believing
he could provide the critical backstop required by the Cooperation Agreement.
GMW shared confidential business and technical information with Mr. Hall and
his team, having received assurances from AWSF and USURF that Mr. Hall
would maintain confidentiality.
On November 3, 2013, however, Mr. Hall emailed AsiaSat’s CEO and
explained that GMW was “in trouble” and was contractually obligated to pay
AWSF $6 million in January 2014, with another $8 million required in February
2014. Aplt.’s App., Vol. 18, at 4489 (Email from Alan Hall to William Wade,
AsiaSat, dated Nov. 3, 2013). Mr. Hall further explained that, if GMW failed to
pay AWSF, he was prepared to obtain an NOAA license like the one GMW held.
He then proposed that AsiaSat go into business with him; specifically, they would
each own forty-two percent in a new venture, with Utah State University owning
one percent, and the employees of the business venture owning fifteen percent.
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Mr. Hall noted that Utah State University and AWSF were excited about the plan,
but he requested AsiaSat to not speak about it with GMW. 4
Mr. Hall, on behalf of Island Park Properties, entered into a Mutual
Non-Disclosure Agreement (“Mutual NDA”) with GMW on November 6, 2013.
The Mutual NDA limited how Island Park could use GMW’s confidential
information, with Island Park agreeing that it would not disclose, discuss, or use
the information for any purpose other than to facilitate the development and
distribution of GMW’s systems and services. Despite the Mutual NDA, the Hall
Defendants launched a business entity called Tempus Global Data, Inc., on
December 20, 2013. 5 A few months later, on April 1, 2014, Tempus announced it
4
Mr. Hall specifically stated in his email that “GMW is in trouble,”
with its leaders “hav[ing] spent nearly 6 million dollars with no revenue
commitments.” Aplt.’s App., Vol. 18, at 4489. Mr. Hall adds that “AWS is
facing a severe financial crisis” and “USU is in turmoil as it sees the opportunity
failing.” Id. Mr. Hall then proposed a “solution” in the form of him “cover[ing]
the AWS payroll for the next 2 months.” Id. He then claimed, “I’m ready if
GMW defaults to obtain the storm license. I’m ready to build a new firm that
oversees construction of six storm sensors (in the next 36 months); aggressively
land scores of clients; raise funds to cash flow the business until profitable and
ultimately create a multi-billion dollar enterprise.” Id. Mr. Hall then asked for
AsiaSat’s “help as a business partner and as a potential owner in the new
business,” inviting AsiaSat to invest in the company and lend support. Id. He
ended his email by stating that “USU and AWS love this plan and will happily
discuss it with you.” Id. Mr. Hall also wrote that he “ha[d] not broached this
matter with GMW and ask you to not speak with me in the near term.” Id.
5
Tempus, along with Mr. Hall, AWSF, and others, filed an intellectual
property suit against GMW on April 25, 2014. Tempus eventually ceased all
operations in June 2016, having never paid any salaries, dividends, or
(continued...)
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had commenced operations in Utah “to deliver a hyperspectral weather sensor and
. . . was in the final stages of securing a[n] NOAA license.” GeoMetWatch, 2018
WL 6240991, at *7.
On January 6, 2014, GMW failed to pay AWSF the roughly $5.4 million it
was required to remit under the terms of the STORM 001 Contract. The next day,
AWSF notified GMW that its failure to remit the required payment constituted a
default of the STORM 001 Contract and a material breach of the PPA. As a
consequence, AWSF was discontinuing performance of and terminating the
STORM 001 Contract and the PPA if GMW did not cure the default within thirty
days. GMW failed to cure during this period; consequently, AWSF terminated
the agreements.
At around the same time, GMW resumed talks with AsiaSat—that is, just
months after AsiaSat had stopped the EXIM Bank loan process at the end of 2013
when GMW failed to fulfill either its backstop or Convertible Note obligations
under the Cooperation Agreement. AsiaSat notified GMW that the Cooperation
Agreement’s terms still applied to any potential deal, and the parties reached no
agreement as to another extension of the Cooperation Agreement’s Cut-off Time.
Following AWSF’s termination of the agreements it had with GMW, GMW
5
(...continued)
compensation of any kind. It never generated revenue, has pursued no business
opportunities since it ceased operations, and has no employees or operating
capital.
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sought out another entity that could construct the STORM sensor. In February
2014, it approached AsiaSat with a new proposal, where another business entity
(i.e., the “American Manufacturer”) 6 would take AWSF’s role and construct the
STORM sensor. Indeed, GMW had prior discussions about such an arrangement
with the American Manufacturer in 2012.
AsiaSat, however, wanted something “concrete” from the American
Manufacturer before it considered re-engaging with GMW. The American
Manufacturer also was concerned that GMW lacked sufficient funds to move
forward with the STORM project, and it believed GMW was running out of
money and was hoping to use the American Manufacturer to obtain funds from
AsiaSat to stave off collapse. The American Manufacturer never agreed to
provide the Cooperation Agreement’s guarantee for any potential EXIM loan.
Nonetheless, GMW and the American Manufacturer entered into a Time and
Materials Purchase Agreement in February 2014, under which the entity would
“figure out integration” of its sensor model with GMW’s needs, in exchange for
6
The district court initially provided the identity of the American
Manufacturer in an order disposing the Hall Defendants’ motion for summary
judgment. The court, however, amended the order a week later “to remove
references to specific entities not party to this litigation.” GeoMetWatch, 2018
WL 6240991, at *1 n.1; see supra note 9 (addressing the amended order). The
district court in that amended order deleted any reference to the American
Manufacturer’s identity, opting instead to refer to it as the “American
Manufacturer.” Id. at *6. We follow the district court’s naming convention in
this opinion, and similarly refer to that entity as the American Manufacturer.
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$500,000 from GMW. Id. at *6. But this was not an agreement to build the
STORM sensor or any other type of sensor.
Nevertheless, in March 2014, GMW and the American Manufacturer met
with AsiaSat and presented the idea that the American Manufacturer would
construct the STORM sensor. AsiaSat was unimpressed, still troubled by the lack
of a guarantee. Consequently, AsiaSat made no commitment to GMW, declined
to resume the EXIM loan process, and, on April 16, 2014, formally terminated the
Cooperation Agreement with GMW.
GMW ran out of money in May 2014, and it failed to make payments to the
American Manufacturer required under the Time and Materials Purchase
Agreement. The American Manufacturer ordered its employees to cease work a
month later. It engaged with GMW in subsequent discussions in 2015, but
nothing came from them.
B
On May 16, 2014, GMW filed its initial complaint against Defendants.
GMW amended its complaint three times, with the Third Amended Complaint
serving as the action’s operative complaint. In it, GMW brought twelve claims
against Defendants based on the events surrounding GMW’s failed venture and its
supposed lost profits because of the venture’s failure. 7 GMW does not so much
7
Those claims are: Breach of Contract against Mr. Hall, Island Park,
(continued...)
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contest the occurrence of the described events, as the prism through which they
should be viewed. In GMW’s telling, all its failures to move forward with
AsiaSat—and, consequently, the potential profits it lost—are attributable to the
bad acts of the Hall Defendants, with the remaining Defendants conspiring with
them to ensure GMW’s downfall.
Under Utah law, “[l]ost profits must be established with reasonable
certainty.” Cook Assocs., Inc. v. Warnick, 664 P.2d 1161, 1165 (Utah 1983).
This requires “proof of ‘sufficient certainty that reasonable minds might believe
from a preponderance of the evidence that the damages were actually suffered.’”
Id. (quoting First Sec. Bank of Utah v. J.B.J. Feedyards, Inc., 653 P.2d 591, 596
(Utah 1982)). “This requirement applies to proof of (1) the fact of lost profits,
(2) causation of lost profits, and (3) the amount of lost profits.” Id. (emphasis
7
(...continued)
USURF and AWSF; Misappropriation under the Utah Trade Secrets Act, Utah
Code § 13-24-1, against all Defendants; Breach of Implied Covenant of Good
Faith and Fair Dealing against Mr. Hall, Island Park, the USURF Defendants, and
AWSF; Intentional Interference with Existing or Potential Economic Relations
against all Defendants; Violation of Section 43(a) of the Lanham Act, 15 U.S.C.
§ 1125(a)-(b), against the Hall Defendants, USURF, and AWSF; Unjust
Enrichment against the Hall Defendants, USURF, and AWSF; Violation of the
Utah Truth in Advertising Act, Utah Code Ann. § 13-11a-1, et seq., against the
Hall Defendants, USURF, and AWSF; Violation of the Utah Unfair Practices Act,
Utah Code Ann. § 13-5-1 et seq., against the Hall Defendants, USURF, and
AWSF; Fraudulent Inducement against Mr. Hall, AWSF, Mr. Behunin, and
USURF; Breach of Fiduciary Duty against Mr. Behunin and USURF; Fraudulent
Nondisclosure against all Defendants except for Island Park; and Civil Conspiracy
against all Defendants.
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added). To establish that Defendants’ actions were the cause of its lost profits,
GMW presented “four damages scenarios” and relied on expert testimony to
establish its two causation theories: that is, first, Defendants’ bad acts caused it to
lose profits; and, second, Defendants were unjustly enriched by stealing GMW’s
trade secrets. Aplt.’s Opening Br. at 43; see Aplt.’s App., Vol. 9, at 1762–63,
1884 (GMW’s Resp. to Hall Defs.’ Summ. J. Mot., filed Jan. 22, 2018).
Specifically, GMW articulated its first three damages scenarios under a lost
profits damages theory—the idea being that GMW “had the ability to complete
the project [under] each of [its] three [proffered scenarios], but for the Hall
Defendants’ interference.” Aplt.’s App., Vol. 9, at 1763. In GMW’s own words:
[T]here were three scenarios in which [GMW] could have
succeed[ed], but for the Hall Defendants’ wrongful conduct . . . .
Scenario 1: The Instrument [8] is built by [AWSF], AsiaSat . . .,
provides an equity investment and project support as reflected in
the Cooperation Agreement, and the [EXIM Bank] provides
financing based upon AsiaSat’s pledge of its balance sheet,
which AsiaSat conditioned upon an acceptable backstop to
mitigate the financial risk associated with the Instrument.
Scenario 2: The Instrument is built by [the American
Manufacturer], AsiaSat provides an equity investment and project
support as reflected in the Cooperation Agreement, and EXIM
provides financing based upon AsiaSat’s pledge of its balance
sheet, which AsiaSat conditioned upon an acceptable backstop to
mitigate the financial risk associated with the Instrument.
8
The “Instrument” refers to the STORM sensor. See Aplt.’s Opening
Br. at 18.
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Scenario 3: The Instrument is built by [the American
Manufacturer], AsiaSat’s payload hosting services are replaced
by a different commercial satellite operator . . ., and new equity
and debt are obtained from the marketplace, including possibly
through EXIM project financing . . . or through another export
credit agency [ ].
Id. at 1762 (footnote added). GMW also proffered another damages scenario
based on an unjust enrichment theory—an idea that centers on “the Hall
Defendants [allegedly] purloin[ing] [GMW’s] confidential and proprietary
documents and information—its crown jewels—which were central to both
[GMW’s] and Tempus’s value.” Id. at 1884.
To provide meat to these theories, GMW specifically points to the
November 3, 2013, email from Mr. Hall to AsiaSat as evidence of an alleged
conspiracy between Mr. Hall, AWSF, and USURF. GMW also points to later
communications from Mr. Hall as evidence of a causal nexus between
Defendants’ bad acts and GMW’s alleged damages. Particularly, GMW
highlights a February 2014 email in which Mr. Hall stated that he “was actively
working to ‘put the last nail in [GMW’s] coffin,’ because he decided he
‘[couldn’t] leave them thinking they [were] still in the game.’” Aplt.’s Opening
Br. at 39 (quoting Aplt.’s App., Vol. 21, at 5314 (Email from Alan Hall to Robert
Behunin, Utah State Univ., dated Feb. 7, 2014)). GMW also cites a March 2014
email chain where Mr. Hall demanded that AsiaSat stop negotiating with GMW.
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See Aplt.’s App, Vol. 20, at 5083–84 (Emails between Alan Hall and William
Wade, AsiaSat, dated Mar. 14, 2014).
In another email chain, William Wade of AsiaSat blind copied Mr. Hall on
an email to GMW stating that AsiaSat would not be moving forward with GMW
on the STORM project because of the “lack of financial guarantees, a credible
commercialization plan[,] or a deployment schedule compatible with AsiaSat 9.”
Id. at 5087 (Emails between Alan Hall and William Wade, AsiaSat, dated Mar.
19, 2014). Mr. Hall forwarded the message to others, including certain
Defendants—i.e., Erin Housley, Mark Hurst, Scott Jensen, and Curtis
Roberts—simply commenting, “Sweet!!” Id.
In sum, based in part on communications such as these, GMW posits that
the failure of its venture was caused by the Hall Defendants’ theft of GMW’s
trade secrets and other illicit conduct, in concert with the other Defendants.
While GMW does not contest the fact that it failed to fulfill the obligations and
conditions it owed to AsiaSat and AWSF under the respective contracts it entered
into with them, GMW effectively argues that any lost profits it suffered were not
self-inflicted, but rather were the result of Defendants’ conduct.
AWSF, for its part, filed a counterclaim against GMW, providing the
following allegations: (1) AWSF and GMW executed the Build Agreements to
construct the STORM sensor; (2) the Build Agreements obligated GMW to make
certain payments by certain dates, as governed by a larger payment schedule;
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(3) GMW failed to make such payments—specifically, GMW “breached th[e]
[Build] [A]greements when it failed to make its contractually-required $5.38
million payment in January 2014”; and, as a result, (4) AWSF suffered millions of
dollars in damages. Aplt.’s App., Vol. 75, at 16438–42 (AWSF’s Cross-Mot. for
Summ. J., filed May 20, 2019); see also id., Vol. 76, at 16526–43 (GMW’s
Renewed Mot. for Summ. J. Regarding AWSF’s Countercl., filed May 20, 2019).
AWSF requested an award amounting to $1,979,796.11 in actual, compensatory
damages. Responding to the counterclaim, “GMW d[id] not dispute that it failed
to make its contractually required . . . payment on January 6, 2014,” but rather, it
“provide[d] two affirmative defenses in an attempt to justify [its] breach: 1)
fraudulent inducement and 2) prior breach.” Id., Vol. 75, at 16443.
C
All Defendants filed separate motions for summary judgment before the
district court. The district court ultimately granted summary judgment to all
Defendants. The following is a summary of the court’s dispositions as to the
summary judgment motions of each Defendant group: (1) the Hall Defendants,
(2) the USURF Defendants and AWSF Defendants, (3) and AWSF, which
motioned for summary judgment on its counterclaim.
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1
Regarding the Hall Defendants, on November 21, 2018, the court granted in
part their motion for summary judgment as to GMW’s causation theories. 9
Specifically, the district court dismissed GMW’s lost profits damages and unjust
enrichment theories because GMW could not recover damages under either of
these theories.
The district court found that “the evidence in this case is simply
insufficient to support a conclusion that the defendants caused [GMW] any
damage.” GeoMetWatch, 2018 WL 6240991, at *8. With respect to GMW’s
experts, the district court explained that, critically, all but one of them “d[id] not
opine,” or even purport to opine, that the Hall Defendants’ conduct “was the
cause of the lost profits [GMW] sought.” Id. at *9.
The court discussed this omission by explaining in a detailed footnote that
GMW’s experts—Mark Piegza, Rick Hoffman, Jozsef Szamosfalvi, and Matthew
O’Connell—did not testify as to the causal connection between Defendants’
conduct and AsiaSat’s decision to terminate the Cooperation Agreement. See id.
at *9 n.11. The district court further noted that the “closest any of [GMW’s]
experts comes to linking the conduct” of Defendants to AsiaSat’s decision was
9
A few days later, on November 27, an amended order was issued “to
remove references to specific entities not party to this litigation.” GeoMetWatch,
2018 WL 6240991, at *1 n.1.
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Mr. O’Connell’s assertion that the public announcement of Tempus’s creation
destroyed any “first-mover” advantage on GMW’s part, thereby frustrating any
funding opportunities for GMW. Id. But the district court found that Mr.
O’Connell’s opinion was facially speculative and was not supported by any facts.
Specifically, the district court stated that Mr. O’Connell did not opine
whether GMW could have actually obtained funding absent the loss of a “first-
mover” advantage, provided no reason why the market for GMW’s services could
only consist of one single entity, and proffered no factual allegations or argument
as to why it was the loss of GMW’s apparent “first-mover” advantage that caused
GMW’s own failure to secure funding in 2014 “to the exclusion of other equally
plausible explanations.” Id. Thus, to the extent Mr. O’Connell’s testimony was
proffered in support of causation, the court excluded it under Rule 702 of the
Federal Rules of Evidence. 10
The district court explained that, “even assuming that a Daubert [11] hearing
on [GMW’s] experts resulted in a ruling that their opinions were admissible, those
opinions are insufficient to establish a causal nexus between defendants’ conduct
and [GMW’s] claim for lost profits.” Id. at *8. Accordingly, the court granted
10
With respect to Mr. O’Connell’s testimony, he testified he had no
opinion on whether the Hall Defendants caused the events leading to GMW’s
failure. See Aplt.’s App., Vol. 22, at 5369–70 (Matthew O’Connell Dep. Tr.,
dated Mar. 9, 2018).
11
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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partial summary judgment because of insufficient evidence as to causation. See
id. at *8–9. This conclusion is best described by the court:
[I]ndependent of anything the Hall Defendants did, [GMW] was
unable to perform under the Cooperation Agreement. [GMW]
was not able to obtain a sufficient backstop, and [GMW] was
unable to provide AsiaSat with a convertible note. As a result,
AsiaSat refused to undertake the loan process and [GMW] was
unable to obtain the funds it needed. Consequently, [GMW] was
unable to pay AWSF to build the STORM sensor.
Id. at *13.
The district court’s decision left alive GMW’s “nominal and statutory
damages” claims against the Hall Defendants, specifically Tempus. Id. at *16;
see id. at *8 n.9 (“On the remaining three claims (violation of Section 43(a) of the
Lanham Act against Tempus, violation of Utah’s Truth in Advertising Act against
Tempus, and violation of Utah’s Unfair Practices Act against Tempus), the
moving defendants seek summary judgment on grounds that [GMW] failed to
provide, in its initial disclosures, computations of the nominal and statutory
damages it seeks.”). On August 2, 2019, the court granted summary judgment to
Tempus on GMW’s claims—specifically, the Utah Truth in Advertising Act, Utah
Unfair Practices Act, and the Lanham Act. The district court noted that GMW did
not oppose summary judgment on its remaining Utah statutory claims and did not
provide evidence to establish the necessary elements of a federal Lanham Act
claim. Thus, those remaining claims against Tempus were dismissed.
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2
As for the AWSF and USURF Defendants, on February 4, 2019, the court
partially granted summary judgment specifically to AWSF, USURF, and Mr.
Roberts (USU’s Senior Associate Vice President for Commercialization and
University Advancement) under the UGIA. After certifying certain questions to
the Utah Supreme Court, which then provided guidance, see GeoMetWatch Corp.
v. Utah State Univ. Research Found., 428 P.3d 1064 (Utah 2018), the court
concluded that USURF and AWSF are governmental entities immune from
GMW’s suit and Mr. Roberts was entitled to summary judgment because the
claims against him “ar[o]se from actions taken within the scope of his
employment with a governmental entity.” GeoMetWatch Corp. v. Hall, No.
1:14-cv-00060-JNP-PMW, 2019 WL 430886, at *6 (D. Utah Feb. 4, 2019). The
court thus dismissed GMW’s claims against Mr. Roberts and its “state-law, non-
contract claims” against USURF and AWSF. Id. at *7. At that point, GMW’s
federal Lanham Act claim remained against USURF and AWSF.
Regarding the other AWSF and USURF Defendants, the district court did
not grant summary judgment to Mr. Jensen (the aerospace engineer from Utah
State University and former director of AWSF) and Mr. Behunin (Utah State
University’s Vice President for Advancement and Commercialization) because
there was no “record evidence reg[ar]ding the scope” of the two employees’
employment, or evidence indicating “whether actions taken outside the scope of
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their employment gave rise to [GMW’s] claims.” Id. The court explained that
both men had the initial burden of showing the appropriateness of summary
judgment on the scope of employment issue, and they failed to satisfy that burden.
Id.
Thereafter, on February 12, 2019, the district court granted AWSF and
USURF’s summary judgment motions filed separately as to GMW’s remaining
federal Lanham Act claims against them. As to AWSF, the court dismissed that
claim because the statements GMW cited that purportedly established AWSF’s
liability were actually made by Tempus, not AWSF. Moreover, the district court
noted that there was no authority for GMW’s “novel proposition” that would
attach liability to AWSF for “assist[ing] another in making false or misleading
statements of fact.” GeoMetWatch Corp. v. Hall, No. 1:14-cv-60, 2019 WL
578917, at *2 (D. Utah Feb. 12, 2019). For largely the same reasons, the court
also dismissed GMW’s Lanham Act claim against USURF. GeoMetWatch Corp.
v. Hall, No. 1:14-cv-60, 2019 WL 575951, at *2–3 (D. Utah Feb. 12, 2019).
On August 2, 2019, the court granted summary judgment to Mr. Jensen and
Mr. Behunin on all claims asserted against them. The court reasoned that because
“the damages causation defects identified by the [November 21, 2018, Order] are
not defendant-specific . . . Messrs. Jensen and Behunin are entitled to complete
summary judgment for all the reasons articulated in th[at] [order].” GeoMetWatch
Corp. v. Hall, No. 1:14-cv-60, 2019 WL 3532047, at *1 (D. Utah Aug. 2, 2019).
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3
As for AWSF’s counterclaim, on August 6, 2019, the district court filed a
sealed memorandum granting in part and denying in part AWSF and GMW’s
cross-motions for summary judgment on the counterclaim. 12 The court explained,
specifically, that AWSF was entitled to summary judgment despite GMW’s
affirmative defense arguments of fraudulent inducement and prior breach, while
GMW was entitled to summary judgment on its argument that AWSF may not
recover its expenditures incurred before the date the parties executed the STORM
001 Contract. Thus, AWSF was only entitled to an amount of $39,030.44.
***
On the same day, the court issued its final judgment. That final judgment
summarized the court’s relevant rulings in this appeal: Judgment is entered (1) in
favor of Defendants “on all claims asserted” in GMW’s Third Amended
Complaint and (2) in favor of AWSF’s counterclaim against GMW in the amount
of $39,030.44. 13 Aplt.’s App., Vol. 90, at 19706 (Final Judgment, dated Aug. 6,
2019). This appeal followed shortly thereafter, with GMW timely filing its
Notice of Appeal on September 3, 2019.
12
The court published a public version of the memorandum containing
the same holding on August 20, 2019.
13
The court also entered judgment in favor of third-party defendant Mr.
Crain against USURF. This decision is not on appeal before us.
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II
“[W]e review a district court’s grant of summary judgment de novo,
applying the same standard as the district court.” Morris v. City of Colorado
Springs, 666 F.3d 654, 660 (10th Cir. 2012) (quoting Helm v. Kansas, 656 F.3d
1277, 1284 (10th Cir. 2011)). “Summary judgment is appropriate when ‘the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” Dullmaier v. Xanterra Parks
& Resorts, 883 F.3d 1278, 1283 (10th Cir. 2018) (quoting F ED . R. C IV . P. 56(a)).
Movants “shoulder the ‘initial burden [of] show[ing] that there is an
absence of evidence to support the nonmoving party’s case.’” Clinger v. N.M.
Highlands Univ., Bd. of Regents, 215 F.3d 1162, 1165 (10th Cir. 2000) (quoting
Thomas v. IBM, 48 F.3d 478, 484 (10th Cir. 1995)). Should they meet this
burden, it then “falls to [the nonmovant] to ‘identify specific facts that show the
existence of a genuine issue of material fact.’” Id. (quoting Thomas, 48 F.3d at
484). To survive summary judgment, the nonmovant “must present sufficient
evidence in specific, factual form for a jury to return a verdict in that party’s
favor.” Id. (quoting Thomas, 48 F.3d at 484).
“No genuine issue of material fact exists ‘unless the evidence, construed in
the light most favorable to the non-moving party, is such that a reasonable jury
could return a verdict for the non-moving party.’” Hasan v. AIG Prop. Cas. Co.,
935 F.3d 1092, 1098 (10th Cir. 2019) (quoting Bones v. Honeywell Int’l, Inc., 366
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F.3d 869, 875 (10th Cir. 2004)); see also SEC v. Thompson, 732 F.3d 1151, 1157
(10th Cir. 2013) (“Even though we view the evidence in the nonmovant’s favor,
. . . a factual dispute cannot be said to be ‘genuine’ if the nonmovant can do no
more than ‘simply show that there is some metaphysical doubt as to the material
facts.’” (quoting Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073,
1084 (10th Cir. 2006))).
“For there to be a ‘genuine’ dispute of fact, ‘there must be more than a
mere scintilla of evidence,’” and summary judgment is properly granted “if the
evidence is merely colorable or is not significantly probative.” Rocky Mountain
Prestress, LLC v. Liberty Mut. Fire Ins. Co., 960 F.3d 1255, 1259 (10th Cir.
2020) (quoting Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)). And
while we draw all reasonable inferences in favor of the non-moving party, “an
inference is unreasonable if it requires ‘a degree of speculation and conjecture
that renders [the factfinder’s] findings a guess or mere possibility.’” Pioneer
Ctrs. Holding Co. Emp. Stock Ownership Plan & Tr. v. Alerus Fin., N.A., 858
F.3d 1324, 1334 (10th Cir. 2017) (alteration in original) (emphases added)
(quoting United States v. Bowen, 527 F.3d 1065, 1076 (10th Cir. 2008)).
In this vein, “‘statements of mere belief’ . . . must be disregarded” at the
summary judgment stage. Argo v. Blue Cross & Blue Shield of Kan., Inc.,
452 F.3d 1193, 1200 (10th Cir. 2006) (quoting Tavery v. United States, 32 F.3d
1423, 1427 n.4 (10th Cir. 1994)). “Unsubstantiated allegations carry no probative
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weight in summary judgment proceedings.” Hasan, 935 F.3d at 1098 (quoting
Bones, 366 F.3d at 875). Nor can the nonmovant “defeat summary judgment by
relying on ‘ignorance of the facts, on speculation, or on suspicion.’” Genzer v.
James River Ins. Co., 934 F.3d 1156, 1160 (10th Cir. 2019) (quoting Conaway v.
Smith, 853 F.2d 789, 794 (10th Cir. 1988)). “Rather, ‘[t]o defeat a motion for
summary judgment, evidence, including testimony, must be based on more than
mere speculation, conjecture, or surmise.’” Hasan, 935 F.3d at 1098 (alteration
in original) (quoting Bones, 366 F.3d at 875).
Because the district court exercised both diversity and supplemental
jurisdiction over GMW’s state-law claims relevant to this appeal, we apply the
substantive law of Utah, the forum state, in our review. See BancOklahoma
Mortg. Corp. v. Cap. Title Co., 194 F.3d 1089, 1103 (10th Cir. 1999) (noting that
“[a] federal court sitting in diversity applies the substantive law . . . of the forum
state,” and “[t]his rule also applies when a federal court exercises supplemental
jurisdiction over state law claims in a federal question lawsuit” (quoting Barrett
v. Tallon, 30 F.3d 1296, 1300 (10th Cir. 1994))).
III
GMW raises three issues in this appeal: (A) whether the district court erred
in granting summary judgment to Defendants based on GMW’s alleged lack of
non-speculative causation evidence; (B) whether the court erred in granting
summary judgment to USURF, AWSF, and Mr. Roberts based on governmental
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immunity under the UGIA; and (C) whether the court erred in granting partial
summary judgment to AWSF on its counterclaim for breach of contract and
rejecting GMW’s cross-motion and affirmative defenses. We turn to each of
these three issues below.
A
GMW contends that the court erred in granting summary judgment to
Defendants because it purportedly lacked evidence to establish causation.
However, virtually all of GMW’s contentions on this issue miss the mark because
GMW still fails to provide legal or evidentiary support linking Defendants’
purported bad acts to GMW’s alleged lost profits. Proving causation is the key in
our review, and GMW’s arguments are largely meritless or irrelevant on this
issue.
Following the order of GMW’s arguments from its Opening Brief, we start
by analyzing its contentions challenging the legal standards that the district court
applied. We then shift to GMW’s arguments against the court’s rejection of
Scenario 3 of GMW’s multi-scenario lost profits damages theory. Afterwards, we
examine GMW’s challenges to the court’s disposition of Scenarios 1 and 2. For
the reasons discussed below, we conclude that all of GMW’s contentions are
either waived or otherwise unavailing.
1
GMW first takes issue with the court’s explanation of the legal standards as
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to damage causation. The court explained the purportedly relevant law as
follows:
Whether a defendant caused lost profits “is generally
determined by an examination of the facts, and questions of fact
are to be decided by the jury.” Mahmood v. Ross, 990 P.2d 933,
938 (Utah 1999). “However, this does not mean that a jury is
free to find a causal connection between a breach and some
subsequent injury by relying on unsupported speculation.” Id.And “[w]hen an injury may have come from either one of two
causes, either of which may have been the sole proximate cause,
it devolves on the plaintiff to prove by a preponderance of the
evidence that the cause for which the defendant was liable was
culpable and the proximate cause.” Tremelling v. S. Pac. Co.,
170 P. 80, 84 (Utah 1917) (quoting Edd v. Union Pac. Coal Co.,
71 P. 215 (Utah 1903)).
Put another way, while a jury may make “deductions based
on reasonable probabilities, ‘the evidence must do more than
merely raise a conjecture or show a probability [as to proximate
cause].’” Mahmood, 990 P.2d at 939 (quoting Sumsion v.
Streator-Smith, Inc., 132 P.2d 680, 683 (Utah 1943)). “Where
there are probabilities the other way equally or more potent[,] the
deductions are mere guesses and the jury should not be permitted
to speculate.” Id. (citation omitted). Thus, “where ‘the
proximate cause of the injury is left to conjecture, the plaintiff
must fail as a matter of law.’” Id. (citation omitted). And though
Utah law tolerates some uncertainty in fixing the amount of lost
profits in favor of a start-up venture, this relaxed standard is
triggered only once causation has been established. See
Kilpatrick v. Wiley, Rein & Fielding (Kilpatrick II), 37 P.3d
1130, 1146 (Utah 2001).
GeoMetWatch, 2018 WL 6240991, at *11 (alterations in original).
GMW objects to the district court’s heavy reliance on Mahmood. Aplt.’s
Opening Br. at 45 n.16. Specifically, GMW complains about the district court’s
use of Mahmood—a case which purportedly “suggest[s] that, if the evidence is
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evenly balanced, or weighs against a finding of causation, the court should take
the matter away from the jury.” Id. GMW contends that the court’s decision “to
apply Mahmood and weigh the evidence is contrary to state and federal rules of
civil procedure, and case law on causation.” Id.; cf. id. (noting that Mahmood’s
purportedly objectionable language is drawn from a 1943 case, which in turn drew
from a 1917 case, yet “[t]hese cases were decided before the modern rules of civil
procedure and modern cases . . . confirm[ed] causation is fact intensive”).
Instead of Mahmood, which it views as too defendant-friendly, GMW offers
the Utah Court of Appeals’ decision Kilpatrick v. Wiley, Rein & Fielding
(Kilpatrick I)—a predecessor of the Utah Supreme Court’s Kilpatrick II decision;
it apparently emphasizes that “[c]ausation is a highly fact-sensitive element of
any cause of action” that “[g]enerally . . . cannot be resolved as a matter of law.”
Id. at 45 (quoting Kilpatrick v. Wiley, Rein & Fielding (Kilpatrick I), 909 P.2d
1283, 1292 (Utah Ct. App. 1996)). Under that case, “only if there is no evidence
upon which a reasonable jury could infer causation, is summary judgment
appropriate.” Id. (quoting Kilpatrick I, 909 P.2d at 1292). And it “only takes one
sworn statement under oath to dispute the averments on the other side of the
controversy and create an issue of fact.” Id. at 46 (quoting Kilpatrick I, 909 P.2d
at 1292); see also id. (noting that “circumstantial evidence can . . . defeat
summary judgment in appropriate circumstances,” and “a plaintiff is not required
to prove [its] case by direct proof alone” (omission in original) (quoting
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Regan-Touhy v. Walgreen Co., 526 F.3d 641, 651 (10th Cir. 2008))). Thus, GMW
surmises that “Utah litigants do not easily dispose of the element of causation on
summary judgment.” Id. at 46 (underlining omitted) (quoting Kilpatrick I, 909
P.2d at 1292). In GMW’s eyes, “causation arguments are for the jury, and
[cannot] be decided as a matter of law.” Id. at 49.
This argument is unpersuasive. To start, it seems that GMW, through the
arguments it presents on this issue, effectively urges us to follow Utah summary
judgment standards over federal summary judgment standards. Insofar as GMW
actually does this, we note that federal courts follow federal procedural law,
which includes our well-established summary judgment standards. See, e.g.,
Prager v. Campbell Cnty. Mem’l Hosp., 731 F.3d 1046, 1060 (10th Cir. 2013)
(“In diversity cases, the substantive law of the forum state governs the analysis of
the underlying claims, including specification of the applicable standards of
proof, but federal law controls the ultimate, procedural question whether
judgment as a matter of law is appropriate.” (quoting Haberman v. Hartford Ins.
Grp., 443 F.3d 1257, 1264 (10th Cir. 2006))); Foster v. Alliedsignal, Inc., 293
F.3d 1187, 1194–95 (10th Cir. 2002) (“[A] federal court sitting in diversity will
be guided by federal-law standards governing summary judgment procedure.”).
Accordingly, the district court in this case was tasked to apply federal
summary judgment standards in its analysis which, as we have explained above,
require GMW to present “evidence, including testimony, [that] must be based on
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more than mere speculation, conjecture, or surmise” in order to defeat summary
judgment. Hasan, 935 F.3d at 1098 (emphasis added) (quoting Bones, 366 F.3d
at 875). Thus, as a preliminary matter, GMW’s argument that the court erred by
applying defendant-friendly legal standards as to causation in the summary
judgment context is undermined because federal summary judgment standards
apply, and GMW—specifically on this issue—largely failed to frame its
disagreement with the district court’s causation conclusions under federal
summary judgment standards.
In any event, GMW fails to demonstrate any ambiguity or conflict in Utah’s
caselaw as to causation and summary judgment, particularly between Mahmood
and Kilpatrick I. Of course, the Utah Supreme Court’s decision in Mahmood
would control to the extent it contradicted the earlier intermediate court’s
decision in Kilpatrick I. But contrary to GMW’s suggestions that Mahmood is too
favorable towards movants, Mahmood itself explains, “[u]nder Utah law, a party
who moves for a directed verdict has the very difficult burden of showing that no
evidence exists that raises a question of material fact.” 990 P.2d at 937 (quoting
Alta Health Strategies, Inc. v. CCI Mech. Serv., 930 P.2d 280, 284 (Utah Ct. App.
1996)). It instructs that “[i]f there is any evidence raising a question of material
fact, judgment as a matter of law is improper.” Id. (emphasis added). It is thus a
stretch for GMW to argue that Mahmood wrongly alleviates the burden movants
shoulder to be awarded summary judgment.
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Specifically, we see no conflict with the principles laid out in Mahmood
when compared to GMW’s preferred caselaw. In particular,
Kilpatrick I—GMW’s own referenced case—similarly states, “only if there is no
evidence upon which a reasonable jury could infer causation, is summary
judgment appropriate.” Kilpatrick I, 909 P.2d at 1292 (emphasis added) (quoting
Harline v. Barker, 854 P.2d 595, 600 (Utah Ct. App. 1993)). Indeed, Kilpatrick I,
as clarified by the Utah Supreme Court’s subsequent decision in that case,
provides no additional assistance to GMW’s cause when we review what it says
about causation as applied to new or start-up ventures like GMW. While the Utah
Supreme Court states that new or “start-up” businesses are to be provided some
leeway in how they prove that they lost a certain amount of profit due to a
defendant’s actions—despite their “lack [of] an actual record of past
earnings”—that flexibility was not extended to how such businesses prove
causation. Kilpatrick II, 37 P.3d at 1146 (emphasis added).
Turning to the facts of this case, as both Mahmood and Kilpatrick I instruct
courts to review, GMW proffered “no evidence” to establish its causation
theories. Kilpatrick I, 909 P.2d at 1292. The district court did not weigh the
evidence, nor did it disregard any sworn statements that could have created issues
of fact; the court simply concluded that “there remains a lack of evidence
suggesting that the cause of the venture’s failure was the conduct of the
defendants.” GeoMetWatch, 2018 WL 6240991, at *9 (first emphasis added).
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Focusing on GMW’s expert testimony, the district court further explained that
their testimony “is material only if the defendants’ conduct caused [GMW] lost
profits.” Id. (emphasis added). But the court found that “the evidence supporting
this conclusion is deficient and requires resort[ing] to speculation and conjecture
that is inconsistent with observed events and the uncontroverted testimony of
third parties.” Id. As narrated earlier, the court found that the experts did not
even directly testify as to causation—with only one of them offering an
unsubstantiated opinion that arguably implicates the subject.
Thus, we conclude that the court followed the proper legal standards and
issued its decision consistent with those standards. See Harding v. Atlas Title Ins.
Agency, Inc., 285 P.3d 1260, 1263 (Utah Ct. App. 2012) (“‘[P]roximate cause
issues can be decided as a matter of law’ in two circumstances: ‘(i) when the facts
are so clear that reasonable persons could not disagree about the underlying facts
or about the application of a legal standard to the facts, and (ii) when the
proximate cause of an injury is left to speculation so that the claim fails as a
matter of law.’” (emphasis added) (quoting Harline v. Barker, 912 P.2d 433, 439
(Utah 1996))); see also Pioneer Ctrs., 858 F.3d at 1333–34 (“Although causation
is generally a question of fact for a jury, where ‘the facts are undisputed and
reasonable minds can draw only one conclusion from them,’ causation is a
question of law for the court.” (quoting Berg v. United States, 806 F.2d 978, 981
(10th Cir. 1986))); cf. Goebel v. Salt Lake City S. R.R. Co., 104 P.3d 1185, 1190
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(Utah 2004) (“[I]f there is any doubt about whether something was a proximate
cause of the plaintiff’s injuries, the court must not decide the issue as a matter of
law.”).
GMW also argues that the district court “ignored the important distinction
between inferences and speculation” by “consistently and improperly dr[awing]
inferences against” GMW when it found that GMW’s “damages scenarios
required speculation.” Aplt.’s Opening Br. at 47. For support, GMW again turns
to Utah caselaw which expounds upon the general standards related to summary
judgment motions and causation evidence. See id. (“In the case of a reasonable
inference, there is at least a foundation in the evidence upon which the ultimate
conclusion is based; in the case of speculation, there is no underlying evidence to
support the conclusion. Thus, so long as there exists sufficient evidence upon
which a reasonable inference regarding proximate cause may be drawn, summary
judgment is inappropriate.” (underlining and bolding omitted) (quoting Harding,
285 P.3d at 1263)).
In this regard, GMW’s argument that the court conflated inference with
speculation is unpersuasive. Again placing GMW’s misguided reliance on Utah
summary judgment standards aside for a moment, we observe that Harding
explains—and GMW itself notes—“in the case of speculation, there is no
underlying evidence to support the conclusion.” Harding, 285 P.3d at 1263
(emphasis added). A more recent decision from the Utah Supreme Court explains
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further:
In distinguishing between a reasonable inference and
speculation, an “inference is a deduction as to the existence of a
fact which human experience teaches us can reasonably and
logically be drawn from proof of other facts.” Speculation, on
the other hand, is the “act or practice of theorizing about matters
over which there is no certain knowledge.” Of course, “there is
no black line between inference and speculation.” But a
reasonable inference exists when “there is at least a foundation
in the evidence upon which the ultimate conclusion is based,”
while “in the case of speculation, there is no underlying evidence
to support the conclusion.”
Heslop v. Bear River Mut. Ins. Co., 390 P.3d 314, 321 (Utah 2017) (citations
omitted); see also Salt Lake City v. Carrera, 358 P.3d 1067, 1070 (Utah 2015)
(“In short, the difference between an inference and speculation depends on
whether the underlying facts support the conclusion. A jury draws a reasonable
inference if there is an evidentiary foundation to draw and support the conclusion.
In the case of speculation, however, there is no underlying evidence to support the
conclusion.”).
As we have noted above, the district court made its causation determination
by finding that there was no evidence of causation, not because it disregarded or
weighed certain evidence in favor of Defendants. Indeed, the heart of the matter
is the same in both Utah and federal caselaw: A non-moving party may evade
summary judgment on the issue of causation by pointing to record evidence from
which a reasonable jury could infer a causal nexus between the movant’s conduct
and the nonmovant’s injury; but the nonmovant may not evade summary judgment
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by speculating about possibilities or hypotheticals that have de minimis to no
support in the record. See Harding, 285 P.3d at 1263 (“We acknowledge that
‘[j]urors may not speculate as to possibilities; they may, however, make
justifiable inferences from circumstantial evidence to find . . . proximate cause.’”
(alteration and omission in original) (quoting Lindsay v. Gibbons & Reed, 497
P.2d 28, 31 (Utah 1972))); cf. Self v. Crum, 439 F.3d 1227, 1236 (10th Cir. 2006)
(“Inferences supported by conjecture or speculation will not defeat a motion for
summary judgment.”); Phillips v. Calhoun, 956 F.2d 949, 950 (10th Cir. 1992)
(“Unsubstantiated allegations carry no probative weight in summary judgment
proceedings.”). And with that in mind, GMW still fails to identify with any
specificity what evidence the court disregarded or weighed in favor of
Defendants. Thus, we conclude that the court did not conflate “speculation” with
“inference,” making GMW’s contrary assertion unavailing.
2
GMW next contends that “the trial court made a fundamental mistake by
ignoring that [GMW’s] damages theory was based upon the value of its lost
business, not a pure lost profits analysis.” Aplt.’s Opening Br. at 49. We find
this argument unsupported by our review of the record.
Simply put, GMW raised no such “lost business value” theory before the
district court. As a preliminary matter, we note that GMW, in at least one state-
court filing, has acknowledged that this theory was neither presented to nor
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considered by the district court. See Hall Defs.’ Resp. Br. at 57 n.29.
Specifically, in GMW’s response in opposition to summary judgment on the basis
of issue preclusion filed in the Third Judicial District of Utah, GMW avers that,
because it “never presented” to the federal district court in the underlying action
here its “alternative damages theory based upon loss of business value”—and the
court never “addressed” that issue—GMW “can and will advance” the theory
before the state trial court. Hall Defs.’ Addendum to the Resp. Br. at 93 (GMW’s
Opp. to Defs.’ Mot. for Summ. J. on Issue Preclusion, dated Oct. 25, 2019). Our
caselaw permits us to take judicial notice of such court filings. See United States
v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (recognizing a court may take
judicial notice of docket information from another court); Estate of McMorris v.
C.I.R., 243 F.3d 1254, 1259 n.8 (10th Cir. 2001) (same). And GMW’s concession
is clear enough and establishes that it (at the very least) forfeited this theory.
Even if we set aside GMW’s admission, it is clear that GMW, as we have
extensively described above, explicitly proffered only two causation theories: a
lost profits damages theory and an unjust enrichment theory. See Aplt.’s App.,
Vol. 9, at 1762–63, 1883–84 (GMW explaining its four damages scenarios under
its lost profits damages and unjust enrichment theories). Nowhere in the record
could we find any mention of a lost business value theory ever being presented to
or considered by the district court. This means that all of GMW’s arguments as to
its lost business value theory are forfeited. See, e.g., Havens v. Colo. Dep’t of
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Corr., 897 F.3d 1250, 1259 (10th Cir. 2018) (“We ordinarily deem arguments that
litigants fail to present before the district court but then subsequently urge on
appeal to be forfeited.”). And GMW has not invoked the plain-error framework
and argued that the district court’s alleged error in disregarding its forfeited
causation theory was plain error. See, e.g., Richison v. Ernest Grp., Inc., 634
F.3d 1123, 1128 (10th Cir. 2011) (“Unlike waived theories, we will entertain
forfeited theories on appeal, but we will reverse a district court’s judgment on the
basis of a forfeited theory only if failing to do so would entrench a plainly
erroneous result.” (citing United States v. Zubia-Torres, 550 F.3d 1202, 1205
(10th Cir. 2008))). Accordingly, we conclude that GMW’s lost business value
theory is effectively waived here. See, e.g., In re Rumsey Land Co., LLC, 944
F.3d 1259, 1271 (10th Cir. 2019) (“If an appellant does not explain how its
forfeited arguments survive the plain error standard, it effectively waives those
arguments on appeal.”); see also Richison, 634 F.3d at 1131 (“[T]he failure to
argue for plain error and its application on appeal . . . surely marks the end of the
road for an argument for reversal not first presented to the district court.”).
GMW nevertheless attempts to persuade us that, contrary to the record, it
actually did preserve a lost business value damages theory. In trying to
demonstrate this, it cites the following appendix excerpts: (1) a portion of GMW’s
Second Supplemental Damages Disclosure, in which GMW “made clear that ‘in
the simplest terms, the first category of damages is what [GMW] lost, which is
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the entire value of its business,’” Aplt.’s Reply Br. at 10 (second alteration in
original) (quoting Aplt.’s App., Vol. 7, at 1346); (2) several pages of its
Opposition to the Hall Defendants’ Motion for Summary Judgment, in which
GMW contended, inter alia, the Hall Defendants “[m]iscomprehend[ed] [GMW’s]
valuation principles,” “ignore[d] the thrust of [GMW’s] damages theory: but for
the[ir] conduct . . . [GMW’s] value would be significantly greater,” and GMW’s
project would have “had value in late 2013 and early 2014 because of the
project’s vast revenue and profit potential,” id. at 11 (capitalization omitted)
(quoting Aplt.’s App., Vol. 9, at 1871–72, 1878); and (3) GMW’s “hearing
handout,” in which GMW apparently incorporated its lost business value theory,
id. Yet even in GMW’s own descriptions, these references merely allude to a
“lost business value” theory in only the most generic and underdeveloped
terms—especially compared to its briefing on its lost profits damages and unjust
enrichment theories. Providing generic and underdeveloped theories before us in
written briefing does not preserve such theories and argumentation.
To preserve an issue for appeal, a party must “alert[] the district court to
the issue and seek[] a ruling”—“[a] party does not preserve an issue merely by . .
. presenting [it] to the district court in a ‘vague and ambiguous’ manner,” or “by
making a ‘fleeting contention’ before the district court.” U.S. Aviation
Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., 582 F.3d 1131, 1142 (10th Cir.
2009) (first quoting Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d
43Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 44
1135, 1141 (10th Cir. 2007); and then quoting Tele-Commc’ns, Inc. v. Comm’r,
104 F.3d 1229, 1233–34 (10th Cir. 1997)). And similarly, “[w]e . . . do not
address ‘arguments raised in the District Court in a perfunctory and
underdeveloped manner.’” In re Rumsey, 944 F.3d at 1271 (quoting
Tele-Commc’ns, 104 F.3d at 1233).
It is thus clear from our caselaw that GMW—even if we give it the benefit
of the doubt that it did proffer some sort of a general, underdeveloped lost
business value theory in the district court—has still forfeited the theory by its
skeletal and inadequate presentation of it, and GMW has effectively waived the
theory before us by not arguing for plain error. Cf. Lone Star Steel Co. v. United
Mine Workers of Am., 851 F.2d 1239, 1243 (10th Cir. 1988) (“Ordinarily, a party
may not lose in the district court on one theory of the case, and then prevail on
appeal on a different theory.”); Stephens Indus., Inc. v. Haskins & Sells, 438 F.2d
357, 361 (10th Cir. 1971) (“After thoroughly perusing the amended complaint, the
pre-trial order, the testimony and exhibits, the jury instructions, and the
appellants’ main brief, we are satisfied that these expansive arguments were not
part of the legal theory upon which the case was tried. Hence, they are
inappropriate for consideration on appeal.”).
In its Reply Brief, GMW also pursues another argument related to its lost
business value theory for the first time in this litigation without invoking the
plain-error doctrine. Specifically, GMW admits in its Reply Brief that Utah
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courts have yet to recognize a “lost business value” damages measure and urges
us to make a prediction—that is, an Erie-guess—that the Utah Supreme Court
would recognize such a theory. Aplt.’s Reply Br. at 12–15, 53; cf. Pehle v. Farm
Bureau Life Ins. Co., 397 F.3d 897, 901 (10th Cir. 2005) (explaining that,
“[b]ecause Wyoming [courts] ha[ve] not directly addressed this issue, [we] must
make an Erie-guess [pursuant to Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)]
as to how the Wyoming Supreme Court would rule”). However, because GMW
did not raise this particular argument involving its lost business value theory in
the district court, nor argue plain error before us, it is effectively waived under
the principles discussed supra. See In re Rumsey, 944 F.3d at 1271. Moreover, it
also is waived because of its late-blooming introduction in GMW’s Reply Brief.
See United States v. Bass, 661 F.3d 1299, 1301 n.1 (10th Cir. 2011) (Ordinarily,
“[w]e decline to consider arguments raised for the first time in a reply brief.”
(quoting United States v. Murray, 82 F.3d 361, 363 n.3 (10th Cir. 1996)));
Anderson v. U.S. Dep’t of Lab., 422 F.3d 1155, 1174 (10th Cir. 2005) (“The
failure to raise an issue in an opening brief waives that issue.”).
In sum, we decline to consider on waiver grounds GMW’s arguments
regarding its purported lost business value theory, including its argument that we
should predict whether the Utah Supreme Court would endorse this theory.
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3
Next, GMW broadly—and vaguely—avers that the district court “rejected
[GMW’s] damage scenarios, but ignored evidence, improperly weighed evidence
and drew inferences against [GMW].” Aplt.’s Opening Br. at 51. On that point,
GMW focuses on its so-called “Scenario 3a,” arguing that, “because the trial
court literally missed Scenario 3a in its analysis, reversal is proper on this basis
alone.” Id. at 51–52. With respect to “Scenario 3a,” GMW explains that it could
have obtained support from an unknown third-party and would have retained an
unknown alternative to AsiaSat to guarantee an EXIM Bank loan. Id. at 53–54.
This argument, too, is unpersuasive. To start, strictly speaking, there was
no “Scenario 3a” presented before the district court. Id. at 51–52; cf. Hall Defs.’
Resp. Br. at 47; GeoMetWatch, 2018 WL 6240991, at *15. GMW presented a
“Scenario 3,” and, as outlined earlier, that scenario, as GMW presented it,
provides that but for Defendants’ illicit conduct:
The Instrument [would have been] built by [the American
Manufacturer,] AsiaSat’s payload hosting services [would have
been] replaced by a different commercial satellite operator . . .
and new equity and debt [would have been] obtained from the
marketplace, including possibly through EXIM project financing
. . . or through another export credit agency [ ].
Aplt.’s App., Vol. 9, at 1762.
The district court was unpersuaded, finding that, aside from GMW’s
“unsupported expert opinion” from Jozsef Szamosfalvi—GMW’s former CFO
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who based his opinion on his personal interactions with EXIM Bank—“there is no
evidence from which a reasonable juror could conclude that [GMW] could have
obtained project financing from the EXIM Bank.” GeoMetWatch, 2018 WL
6240991, at *15. So, for purposes of GMW’s specific argument now before us,
the court did in fact consider—through its disposition of Scenario 3—in
substance, what GMW is now calling “Scenario 3a.”
GMW nevertheless argues that the district court, in its reasoning, merely
disposed of “Scenario 3b” which apparently was only about project financing, and
not the scenario in which GMW could obtain “equity.” Aplt.’s Opening Br. at 53.
It avers that the court “literally failed” to address whether GMW could have
obtained an “equity investor.” Id.That assertion is misleading. GMW’s own description of Scenario 3 stated
that “new equity and debt are obtained from the marketplace, including possibly
through EXIM project financing.” Aplt.’s App., Vol. 9, at 1762 (emphases
added). That phrase indicates that the term “project financing” is a more concrete
example of how “new equity and debt” could support GMW. Particularly, the
placement of the comma just right after the word “marketplace” indicates that
“EXIM project financing” is an example of how GMW may “obtain” “new equity
and debt” “from the marketplace.” See Antonin Scalia & Bryan Garner, R EADING
L AW : T HE I NTERPRETATION OF L EGAL T EXTS 161 (1st ed. 2012) (stating that
“[p]unctuation is a permissible indicator of meaning” and “[p]unctuation in a
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legal text . . . will often determine whether a modifying phrase or clause applies
to all that preceded it or only to a part”). 14 By finding that GMW failed to
provide evidence as to Scenario 3 generally, and as to project financing
specifically, the district court was, in effect, holding that GMW did not provide
evidence supporting its contention that it could have acquired “new equity and
debt.”
As the Hall Defendants explain, “GMW referred to its third damages theory
only in the singular,” and the court “analyzed all [of] GMW’s damages scenarios
the way GMW presented them.” Hall Defs.’ Resp. Br. at 46 (emphases added).
Accordingly, even if GMW did mean to differentiate “debt” from “equity” for
purposes of its damages scenarios, it now cannot fault the district court for
following how GMW itself presented the scenarios—that is, by grouping “equity
and debt” in only one scenario, that is, “Scenario 3.” Cf. United States v.
Edward J., 224 F.3d 1216, 1222 (10th Cir. 2000) (noting in the context of
criminal trials and proceedings that “[t]he invited error doctrine prevents a party
from inducing action by a court and later seeking reversal on the ground that the
requested action was error” (quoting United States v. Johnson, 183 F.3d 1175,
14
Indeed, in order for GMW’s reading to be correct, the relevant
phrase, among other possible ways, should have been written as: “AsiaSat’s
payload hosting services are replaced by a different commercial satellite operator
. . . and new equity, and new debt including possibly EXIM project financing, are
obtained from the marketplace . . . .” But the sentence was not written in that
manner.
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1178 n. 2 (10th Cir.1999))); cf. also Ruiz v. Wing, 991 F.3d 1130, 1140 n.7
(11th Cir. 2021) (applying invited error doctrine in a civil case); Wharton v.
Furrer, 620 F. App’x 546, 548 (7th Cir. 2015) (unpublished) (“We have applied
the invited error doctrine in both civil and criminal cases.” (citing Naeem v.
McKesson Drug Co., 444 F.3d 593, 609 (7th Cir. 2006); United States v.
Muskovsky, 863 F.2d 1319, 1329 (7th Cir. 1988))).
At bottom, the district court did provide its conclusions on GMW’s
Scenario 3—i.e., that GMW could have acquired financing to secure its venture,
which included the claim that GMW could have possibly obtained an equity
investor. And the court found that such a scenario was unfounded, stating that
“the expert opinions simply ‘assume’ that [GMW] would have been able to secure
financing for its venture despite its inability to do so before the Hall Defendants
arrived on the scene.” GeoMetWatch, 2018 WL 6240991, at *8. We agree with
the district court that “this assumption and others like it rely on nothing more than
mere speculation and conjecture that is, in critical respects, directly at odds with
the observed conditions faced by [GMW] before the Hall Defendants entered the
picture.” Id. Thus, there simply is no reason to believe that the district court
somehow managed to ignore or overlook an ostensible “Scenario 3a.”
Accordingly, we conclude that GMW’s contrary assertion is unavailing.
GMW additionally claims that there was “abundant evidence” supporting
its theory that GMW could have secured “new equity and debt” but for the Hall
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Defendants’ actions. Aplt.’s Opening Br. at 55. GMW writes that, “[p]rior to the
theft of its trade secrets and destruction of its business by Defendants, [GMW]
had spent years and raised and invested approximately $6 million to develop trade
secrets and confidential information, such that its project was poised for success,
summarized in the opposition to the summary judgment motion, and demonstrated
by thousands of pages of evidence.” Id. at 55–57. Supposedly, these “thousands
of pages” “demonstrated [that GMW] was positioned for success.” Id. at 57.
But these “thousands of pages”—which likewise “inundat[ed] the district
court,” see Hall Defs.’ Resp. Br. at 54—do not help GMW’s appeal. Nowhere in
GMW’s Opening Brief does it actually explain where, why, and how these records
serve as evidence in support of causation. We have a “preference for
affirmance,” Richison, 634 F.3d at 1130, and GMW’s general and vague
assertions and citations to its thousands of pages of documents do not help it to
meaningfully challenge the district court’s grant of summary judgment for
Defendants—that is, to show that Defendants’ actions are to blame for its failure
to move forward with AsiaSat. See, e.g., Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“Plaintiff’s briefs are wholly
inadequate to preserve issues for review. . . . [T]he court cannot take on the
responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.” (citations omitted)); Reedy v. Werholtz, 660 F.3d 1270,
1274 (10th Cir. 2011) (“Nowhere do Plaintiffs state the standards applicable to
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the grant of injunctive relief and explain why the facts and the law support that
remedy in this case. Issues not adequately briefed will not be considered on
appeal.”).
As the Hall Defendants appropriately state, “GMW’s mountain of paper
does not obscure GMW’s failure to satisfy conditions of the Cooperation
Agreement or terms of GMW’s agreements with other contingent partners.” Hall
Defs.’ Resp. Br. at 54. And we agree with the Hall Defendants that this
voluminous record “does not support GMW’s claim that [they] caused GMW’s
business failure.” Id. (emphasis omitted). In any event, that GMW was
“positioned for success” does not answer whether Defendants’ actions
undermined its ability to follow the provisions of the Cooperation Agreement with
AsiaSat—that is, to provide either a backstop or a Convertible Note. Aplt.’s
Opening Br. at 58. Thus, we reject GMW’s argument here.
Still challenging the district court’s disposition of Scenario 3, GMW
changes tack and homes in on the testimony of two of its experts. GMW contends
that “expert evidence” from Matthew O’Connell and Mark Piegza was sufficient
to support Scenario 3. Aplt.’s Opening Br. at 58. The two experts, according to
GMW, testified that it “had accumulated significant assets, including trade
secrets, and had accomplished [numerous] significant milestones.” Id. at 59. For
example, Mr. O’Connell purportedly explained that these milestones indicated
that “[t]he enterprise was sufficiently advanced[,] that it had earmarks for a
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successful project and therefore could be expected to obtain equity and/or debt
financing.” Id. at 61 (underlining omitted) (quoting Aplt.’s App., Vol. 10, at
2163 (Expert Report of Matthew O’Connell, dated Sept. 22, 2017)).
Those expert opinions, however, still do not speak to whether Defendants’
conduct was the cause of GMW’s damages. More precisely as to Scenario 3, they
do not address whether Defendants caused GMW’s failure to obtain new equity
and debt. As we noted earlier, both experts explained that they were not
testifying as to causation. Mr. Piegza testified that causation was outside of the
scope of his opinion, answering affirmatively when asked whether he would
“admit, though, that there’s no discussion in your report of the actions of the
[D]efendants in this case,” and that those actions were “outside the scope of your
opinions.” Aplt.’s App., Vol. 22, at 5364–66 (Mark Piegza Dep. Tr., dated
Mar. 8, 2018).
Mr. O’Connell likewise noted he did not have an opinion “regarding why”
(1) “AsiaSat allowed the [C]ooperation [A]greement to expire”; (2) “AsiaSat
ultimately terminated” that agreement; (3) “EXIM Bank never approved a loan for
purposes of funding the hyperspectral sensor”; and (4) “AWSF terminated the
[STORM 001] contract.” Id. at 5369 (Matthew O’Connell Dep. Tr., dated Mar. 9,
2018). He also testified that he was “certainly not in the best position to explain
why [AsiaSat] terminated [the Cooperation Agreement].” Id. at 5370. As we
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narrated above, the district court itself noted that the experts did not address
causation. See GeoMetWatch, 2018 WL 6240991, at *9 n.11.
Thus, in our view, Mr. Piegza and Mr. O’Connell’s opinions are entirely
irrelevant to the question in this appeal: whether the court erred in finding that
GMW failed to provide evidence that Defendants caused GMW’s purported
damages—i.e., that Defendants are to blame for GMW’s failure to abide by the
Cooperation Agreement it signed with AsiaSat. 15
15
In passing, GMW also states in a footnote the district court erred in
excluding Mr. O’Connell’s “first-mover advantage” opinion. Specifically, GMW
states that the court erred because “where an expert is qualified and there is
evidence (or even an appropriate assumption) to support an opinion, the trial court
should not weigh the expert evidence.” Aplt.’s Opening Br. at 62–63 n.22.
GMW includes a few citations to cases but nothing else in terms of explanation,
discussion, or analysis.
Similarly, GMW subsequently states in its arguments surrounding
Scenario 2 that the district court “incorrectly dismissed [GMW’s] expert opinions
that [GMW] could have found an alternative lender to EXIM as ‘ipse dixit.’” Id.
at 87. As support, GMW merely provides two additional statements:
For an expert’s opinions to be ipse dixit, they must be so
removed from the data as to create an impermissible analytical
gap, i.e. “the conclusion simply does not follow from the data.”
The opinions about [GMW’s] ability to obtain a substitute lender
were based upon the same factors that made the [GMW] project
ready-for-approval by EXIM from a technical and revenue
perspective, and the trial court’s dismissive attitude is contrary
to the evidence.
Id. (quoting Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2005)).
Nowhere in the Opening Brief does GMW mention or discuss any Federal Rule of
Evidence, or even the standard of review that we should utilize in analyzing these
short, conclusory arguments. As we mentioned above, even in addressing
(continued...)
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GMW further argues that, “[a]lthough also not addressed by the trial court,
Defendants themselves validated the value of [GMW’s] project, creating issues of
fact as to its value and causation.” Aplt.’s Opening Br. at 65. In support of this
assertion, GMW alleges that “Defendants’ first endorsement of [GMW’s] business
plan and revenue models came from the years of work by USURF and
AWSF[—]who entered into agreements with [GMW], invested time and money
with [GMW], and supported [GMW] in multiple ways.” Id. Then, “Defendants
next endorsed [GMW’s] business plan and revenue models by stealing and
misusing them to create competing business.” Id. at 66.
Moreover, GMW asserts that “[e]verything Tempus had was derived from
[GMW’s] information, and Tempus would not have existed but for the theft.” Id.
As further evidence, GMW refers to Mr. “Hall’s own emails reflect[ing] his
concern [GMW] would succeed—with or without—AsiaSat—leading him to write
that he ‘need[ed] to put the last nail in [GMW’s] coffin’ because he couldn’t
‘leave them thinking they are still in the game,’ that he had a plan to make sure
‘the competition will be devastated’ (to which a [Utah State University] employee
15
(...continued)
contentions of a pro se litigant, “the court cannot take on the responsibility of
serving as the litigant’s attorney in constructing arguments and searching the
record.” Garrett, 425 F.3d at 840. We perforce will not do so here, given that
GMW is represented by counsel. Thus, we find these arguments “insufficiently
raised” and deem them waived. Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir.
2007); see also Kitchen v. Herbert, 755 F.3d 1193, 1213 n.6 (10th Cir. 2014) (an
issue is waived when raised “in a footnote and in conclusory fashion”).
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responded ‘that is a perfect plan of attack’), and that his plans included that
‘GMW burns in hell.’” Aplt.’s Opening Br. at 67 (underlining omitted) (quoting
Aplt.’s App., Vol. 9, at 1867–68).
We reiterate, however, that we do not see how we can infer a link between
Defendants’ actions and GMW’s damages even if we do acknowledge that Mr.
Hall’s emails were inflammatory and that Defendants did see some value in
partnering with GMW. As the Hall Defendants succinctly state, “these
unflattering (even inflammatory) materials and actions are irrelevant” because
“GMW fails to provide evidence connecting them to GMW’s alleged lost profits.”
Hall Defs.’ Resp. Br. at 55–56. What is missing here, and indeed throughout this
appeal, is the connection between Defendants’ alleged bad acts and GMW’s failed
venture.
GMW, effectively, “had to, but did not, proffer admissible evidence
establishing that GMW’s prospective venture partners . . . were actually
motivated to abandon GMW” due to Defendants’ illicit conduct. Id. at 56. In the
end, despite Mr. Hall’s negative emails and the creation of Tempus, there is still
no causal link between those actions and GMW’s failure to abide by the
Cooperation Agreement it entered into with AsiaSat. Cf. Canyon Country Store v.
Bracey, 781 P.2d 414, 419 (Utah 1989) (affirming jury award of lost profits to the
plaintiff’s grocery business because, among other things, it provided evidence
convincing the jury that, “had the insurers paid the claim promptly, Canyon
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Country would have been able to continue and conduct business profitably”);
Warnick, 664 P.2d at 1165 (finding that a causal nexus existed between a
company’s lost profits and a manufacturer’s failure to timely supply silos
because, “[d]espite repeated follow-up contacts by [the company], the final
shipment of parts for the silos was not received until almost a year after it was
promised”; “[o]nce the parts were received and modified, the plant quickly
became operational, earning its first profits within a month”; and [an owner of the
company] testified that operations could have commenced 8 months sooner if the
parts had been sent earlier”); cf. also Atkin Wright & Miles v. Mountain States
Tel. & Tel. Co., 709 P.2d 330, 336 (Utah 1985) (holding that plaintiff law firm
failed to establish that its reduction in gross income was caused by the negligent
operation of the intercept by a defendant telephone company because, among
other things, merely showing that the law firm’s quarterly gross revenues
decreased for a three month period when the negligent operation happened “does
not establish that it was the occasionally malfunctioning intercept which caused
the reduced revenues” and such an inference would only be “speculative,”
especially in light of the fact that the “incomes of law firms generally fluctuate
from year to year and throughout the months of each year”).
Thus, we find its contention that we can reasonably infer causation—that is,
the connection between Defendants and GMW’s failed venture and lost
profits—to be unavailing.
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4
We now move on to GMW’s arguments regarding Scenario 1 of its lost
profits damages theory. Recall that, under Scenario 1, GMW claims that “[t]he
Instrument [would have been] built by [AWSF], AsiaSat [ ], [would have]
provide[d] an equity investment and project support as reflected in the
Cooperation Agreement, and the [EXIM Bank] [would have] provide[d] financing
based upon AsiaSat’s pledge of its balance sheet, which AsiaSat conditioned upon
an acceptable backstop to mitigate the financial risk associated with the
Instrument[,]” but for Defendants’ illicit conduct. Aplt.’s App., Vol. 9, at 1762.
To start, GMW again asserts that the district court “improperly weighed
evidence, ignored evidence, and misapplied law” when it determined that AsiaSat
would likely not have waived the backstop requirement and GMW would likely
not have provided the Convertible Note. Aplt.’s Opening Br. at 68–69. But
GMW proffers nothing—no facts, no caselaw, and no citations to the record—to
counter the court’s conclusions.
GMW’s failure to support its Scenario 1 assertions was initially observed
by the district court:
[GMW] does not even address whether it would have been able
to provide a convertible note to AsiaSat. Thus, even assuming
that AsiaSat were willing to waive the backstop requirement (it
was not), there is no evidence that [GMW] was able to provide
AsiaSat with a convertible note, and therefore AsiaSat would not
have triggered the loan process.
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GeoMetWatch, 2018 WL 6240991, at *12 (footnote omitted). Now on appeal,
GMW has not contested that finding aside from its ineffective, bald assertion
quoted supra. Thus, we find that GMW’s argument is waived because it is
inadequately briefed. See Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007)
(“An issue or argument insufficiently raised in the opening brief is deemed
waived.”); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e
routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.”); see also Nixon v. City
& Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (noting that “[t]he first
task of an appellant is to explain to us why the district court’s decision was
wrong”).
In any event, we nevertheless conclude that GMW’s claims related to
Scenario 1 are unfounded in the record, since there is actual evidence of GMW’s
reluctance to even provide the Convertible Note in the first place. Specifically,
GMW previously stated in internal documents that issuing the Convertible Note
with a conversion price as prescribed by AsiaSat would make investing in GMW
“very unattractive for investors to buy in to the level of dilution that [t]his [N]ote
represents, and it will be tough to justify any particular valuation.” Aplt.’s App.,
Vol. 46, at 10804 (GMW’s Convertible Note Issues List, dated Aug. 16, 2013).
Mr. Crain—one of GMW’s co-founders—similarly testified that he thought
AsiaSat was taking a “very strong position” in negotiations to see if they could
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“move” GMW’s position, especially because the Convertible Note, and other
conditions, “are onerous conditions [GMW] likely can never satisfy.” Id. at
10817–18 (David Crain Dep. Tr., dated Dec. 7, 2016) (emphasis added).
And Mr. Crain further testified that GMW “had counsel advice” that GMW
could not accept the Convertible Note requirement—evincing that GMW was
willing to let its deal with AsiaSat lapse. Id. at 10818. Thus, in light of the lack
of evidence supporting GMW’s conclusion that AsiaSat would have waived the
backstop or Convertible Note requirements, along with evidence that establishes
that GMW was reluctant, at the very least, to issue a Convertible Note, we hold
that the district court did not improperly weigh or ignore the evidence when it
ruled in favor of Defendants.
GMW also argues that we should infer that AsiaSat would have waived the
requisite conditions precedent in the Cooperation Agreement because, as even the
district court noted, “‘there [was] a slim possibility AsiaSat would have been
willing to waive both [the] requirements’ of a backstop and the convertible note.”
Aplt.’s Opening Br. at 69 (quoting GeoMetWatch, 2018 WL 6240991, at *13).
Reading that statement, GMW thinks that the court “[c]onceded” that there was
evidence bolstering GMW’s position. Id. (emphasis omitted). GMW explains
that if the record reflects “even the possibility” of a factual dispute, then summary
judgment must be denied. Id. (emphasis omitted) (citing Cox v. CSX Intermodal,
Inc., 732 So. 2d 1092, 1095 (Fla. Dist. Ct. App. 1999); Nay v. Gen. Motors Corp.,
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GMC Truck Div., 850 P.2d 1260, 1264 (Utah 1993); C.S. Hammond & Co. v. Int’l
Coll. Globe Inc., 146 F. Supp. 514, 516 (S.D.N.Y. 1956)).
But GMW’s assertions misread both the district court’s explanation and its
own cited caselaw. The court accompanied its “slim-possibility” statement with a
footnote stating that:
[A]ny causation theory that asserts, without evidence, that a
counterparty might have abided [GMW’s] breach, cannot be
sustained. If any party could come to court in a contract case and
successfully assert counterfactual scenarios involving the
benevolence of counterparties in excusing non-performance, the
law of contracts would be turned on its head.
GeoMetWatch, 2018 WL 6240991, at *13 n.16 (emphasis added).
Thus, the court qualified that there was indeed no evidence to sustain
GMW’s central thesis for causation in this case. That there was a “slim
possibility” that AsiaSat was willing waive the provisions of the Cooperation
Agreement was not based on any piece of evidence or fact. The court was thus
correct in disregarding whatever “slim possibility” was present because such a
“slim possibility” amount to unsubstantiated speculation, which must not be
considered in summary judgment proceedings. See, e.g., Hasan, 935 F.3d at 1098
(“Unsubstantiated allegations carry no probative weight in summary judgment
proceedings.” (quoting Bones, 366 F.3d at 875)); Genzer, 934 F.3d at 1160
(noting that a nonmovant cannot “defeat summary judgment by relying on
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‘ignorance of the facts, on speculation, or on suspicion’” (quoting Conaway,
853 F.2d at 794)).
Likewise, turning to GMW’s caselaw—even putting aside the fact that it
does not bind us—it appears to be quite consistent with our federal summary
judgment standards enunciated above. In particular, this caselaw seems to
indicate that the kind of “possibility” of a factual dispute that would permit a
party to survive summary judgment only would be one that is grounded in
evidence. See Cox, 732 So. 2d at 1095 (“If the record reflects even the possibility
of a material issue of fact, or if different inferences can be drawn reasonably from
the facts, that doubt must be resolved against the moving party and summary
judgment must be denied.” (emphases added)); Nay, 850 P.2d at 1264 (“We refuse
to prevent [causation] issues from going to the jury when, as here, there is any
evidence upon which a reasonable jury could infer causation.” (emphases
added)); Hammond, 146 F. Supp. at 516 (“It has been clearly established that
where there is any possibility that an issue of fact is presented, the opposing party
should have the opportunity to cross examine movant’s witnesses and the trier of
the facts should have the opportunity to evaluate their credibility by observing
their demeanor while they testify.” (emphasis added)). Thus, the three cases
GMW cites are of no assistance to its arguments as to this issue.
In this case, as the district court observed, GMW’s assertions about
Defendants’ bad acts and how they caused the failure of its venture with AsiaSat
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are not grounded in any fact or evidence in the record. Given our standards of
review, that is fatal to GMW’s cause. As the First Circuit aptly observed, “[t]he
test for summary judgment is steeped in reality,” meaning that, “[a]lthough the
remedy must be withheld if material facts are authentically disputed, there is a
burden of production: the party opposing the motion ‘must set forth specific facts
showing that there is a genuine issue for trial.’” Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (quoting F ED . R. C IV . P. 56(e))
abrogated on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502(1993). And “[e]ven in cases where elusive concepts . . . are at issue, summary
judgment may be appropriate if the nonmoving party rests merely upon
conclusory allegations, improbable defenses, and unsupported speculation.” Id.Thus, with these principles in mind, we do not think that the district court
acknowledged or admitted that there was evidence supporting GMW’s averment
that there exists a “slim possibility” that AsiaSat would have waived the
Cooperation Agreement’s requirements. Accordingly, we find GMW’s argument
unavailing.
GMW next asserts that AsiaSat and AWSF abandoned GMW only after Mr.
Hall used GMW’s confidential information to provide them with better business
offers. See Aplt.’s Opening Br. at 70. Essentially rehashing its arguments related
to Scenario 3, GMW again focuses on Mr. Hall’s November 3, 2013, email as the
turning point of GMW’s partnership with AsiaSat. Prior to that email, argues
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GMW, “AsiaSat was enthusiastic about getting the Convertible Note signed and
moving forward with the project.” Id. at 71. GMW cites an October 15, 2013,
email AsiaSat wrote to GMW that apparently shows this positivity and promise.
Id. But, “after gaining access to [GMW]’s confidential information,” Mr. Hall in
early November 2013 developed a so-called “Replace and Destroy Plan” to take
AsiaSat—and the venture—away from GMW. Id.
Again, GMW’s reliance on these Hall emails is unavailing. There is still
no link between GMW’s lost profits and Mr. Hall’s November 3, 2013, email.
Specifically, even if we assume AsiaSat was still enthusiastic about the deal in
October 2013, that same email shows that AsiaSat would still not have waived the
backstop or the Convertible Note requirement—or even been more flexible with
the requirements. As AsiaSat stated:
Following the very positive and promising meetings last week
. . . we would like to move to conclude the Convertible Note
agreement and the outstanding CPs [i.e., “conditions precedent”]
so as to be able to move forward with both the Exim process and
initial direct funding at the earliest possible moment.
Aplt.’s App., Vol. 45, at 10730 (GMW’s Mot. for Consideration of Supplemental
Material in Resp. to the Hall Defs.’ Summ. J. Mot., dated Aug. 31, 2018)
(emphasis added).
Further undercutting any speculation that Mr. Hall’s emails were to blame
for AsiaSat cutting its ties with GMW, AsiaSat’s Mr. Wade testified that the two
reasons AsiaSat did not continue with GMW were “because we had[] n[o]t
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received the guarantees,” and “because we were facing a deadline.” Aplt.’s App.,
Vol. 7, at 1489 (William Wade Dep. Tr., dated Jan. 18, 2017). Nowhere in
GMW’s thousand-page record does AsiaSat state that it was actually Mr. Hall or
any of the other Defendants that influenced its decision to cut GMW loose.
Moreover, recall that GMW’s inability to perform and satisfy the
Cooperation Agreement’s conditions was the influential key to AsiaSat taking
affirmative steps to delay and halt the loan approval process in July 2013—almost
“two months before” Mr. Hall was introduced to GMW. GeoMetWatch, 2018 WL
6240991, at *13. Mr. Crain himself testified that, if AsiaSat was not willing to
waive the Convertible Note requirement, they were willing to let the AsiaSat deal
lapse and thought that GMW “got other opportunities” if they “can’t close this
[C]onvertible [N]ote.” Aplt.’s App., Vol. 46, at 10818. Thus, while GMW could
very well argue that AsiaSat was still enthusiastic about the deal in October 2013,
there is no evidence showing that it was willing to waive the Cooperation
Agreement’s conditions in order for the venture to move forward.
Indeed, it is clear from AsiaSat’s own words and actions, along with
GMW’s stated preference to let the deal lapse if AsiaSat stood firmly behind the
conditions precedent, that the parties were not willing to waive (on AsiaSat’s
part) or accomplish (on GMW’s part) any of the conditions—effectively
“contradicting” GMW’s bald speculations that AsiaSat would have waived the
conditions or that GMW would have satisfied them but for Defendants’ bad acts.
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Rapid Transit Lines, Inc. v. Wichita Devs., Inc., 435 F.2d 850, 852 (10th Cir.
1970) (affirming summary judgment on damages allegedly suffered from an
eviction because nonmovant stated before the district court that it had no evidence
to contradict movants’ evidence supporting their motion for summary judgment).
As well, GMW makes much of XTec, Inc. v. Hembree Consulting Servs.,
Inc., 183 F. Supp. 3d 1245 (S.D. Fla. 2016), a case that purportedly bolsters
GMW’s central argument in this appeal: that we can reasonably infer that it was
Defendants’ bad actions that caused the collapse of GMW’s venture with AsiaSat.
In that case, a plaintiff software company, XTec, claimed that the defendants
caused it damage by interfering with XTec’s deal with its customer, the U.S.
Navy. Id. at 1251. For the purposes of this appeal, GMW submits that, in XTec,
a jury rejected the defendants’ argument that it was XTec’s fault that the Navy
stopped doing business with them. Aplt.’s Opening Br. at 74–75. The defendants
in XTec argued that the Navy would not have continued its business with XTec
unless it satisfied a certain condition, which XTec refused to do. 183 F. Supp. 3d
at 1261. The jury nevertheless inferred that it was the defendants’ “self-serving
tactics” that “pushed X[T]ec out of its relationship with the Navy.” Id. at 1261
n.6. GMW latches on to that point and argues that Defendants here acted
similarly to those in XTec. Aplt.’s Opening Br. at 74–75.
GMW, however, forgets to tell us that the condition XTec refused to satisfy
was a newly added, non-contractual condition that the Navy attempted to add
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subsequent to the original agreement it had with XTec. See XTec, 183 F. Supp.
3d at 1260. That is remarkably different from the instant action, where GMW
spent months unable to fulfill its original contractual obligations—conditions that
the parties entered into before Mr. Hall or the Hall Defendants even came into the
picture. Unlike the Navy, AsiaSat did not impose anything new on GMW after
talking with Mr. Hall or any of the other Defendants. AsiaSat simply moved on
after GMW failed to satisfy its duties under the Cooperation Agreement. Thus,
we find that the holding and analysis in XTec does not help us see things GMW’s
way.
GMW then stages another similar attack on the district court’s allegedly
improper inferences on whether AsiaSat could have waived or reduced the
backstop requirement. Aplt.’s Opening Br. at 76. This time, according to GMW,
AsiaSat in yet another email actually notified Mr. Hall that, “under certain
circumstances, ‘the [backstop] guarantee could be reduced and ultimately
removed before any risk attaches.’” Id. (alteration in original) (underlining and
bolding omitted) (quoting GeoMetWatch, 2018 WL 6240991, at *12). With that
piece of evidence, GMW argues that “[t]his single email creates an issue of fact
about AsiaSat’s willingness to waive the backstop.” Id. As GMW reasons, the
email is thus evidence that AsiaSat was indeed willing to waive one of the
Cooperation Agreement’s conditions, and could have waived it for GMW but for
Mr. Hall’s interference.
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GMW fails to persuade us. As the district court noted, GMW’s argument
as to this email is wildly taken out of context. Mr. Hall on November 4,
2013—just a day after the November 3, 2013, email in which he goes against
GMW and invites AsiaSat to do business with him—asked Mr. Wade at AsiaSat if
it is “appropriate and possible for me to work directly with [EXIM] Bank.”
Aplt.’s App., Vol. 15, at 3636 (Email from Alan Hall to William Wade, AsiaSat,
dated Nov. 4, 2013). If so, Mr. Hall represented that he “would assume the
obligations.” Id. The full response from AsiaSat was:
If you are willing to explore the loan obligation[,] we can
certainly work with you to come up with a workable solution that
will kick start the project. I think once we confirm a number of
commitments, the guarantee could be reduced and ultimately
removed before any risk attaches.
Id. (emphases added) (Email from William Wade, AsiaSat, to Alan Hall, dated
Nov. 4, 2013).
In light of AsiaSat’s response, it is clear that a reduction or removal of the
backstop was something AsiaSat was prepared to consider in certain
circumstances, if other conditions were met—including the assumption by another
of debt obligations. However, GMW did not make any offer to AsiaSat like Mr.
Hall’s to assume debt obligations. Indeed, in October 2013, AsiaSat was still
pressing GMW regarding the existing commitments—i.e., to “move to conclude
the Convertible Note agreement and the outstanding CPs so as to be able to move
forward with both the Exim process and initial direct funding at the earliest
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possible moment.” Id., Vol. 45, at 10730. Accordingly, we find that the email is
unhelpful to GMW’s arguments because AsiaSat’s flexibility on the backstop was
in response to Mr. Hall’s willingness to “assume the obligations.” Id., Vol. 15,
at 3636. Therefore, in light of the evidence, GMW cannot reasonably argue that
AsiaSat would have waived the backstop requirement but for Mr. Hall’s illicit
conduct.
Not giving up, GMW points to another supposed piece of evidence to argue
that AsiaSat was willing to waive the backstop—a declaration from Mr. Crain in
which he testifies that, “[p]rior to the Hall Defendants’ introduction to [GMW],
[AsiaSat officers including Mr. Wade] discussed with me AsiaSat requiring less
than the full backstop, or possibly waiving that condition [] altogether.” Id., Vol.
10, at 1910 (David Crain Decl., signed Jan. 22, 2018). GMW asserts that “the
fact AsiaSat had communicated about ‘requiring less than the full backstop, or
possibly waiving that condition entirely,’ clearly supports an inference that
AsiaSat would in fact have done so, but for Defendants’ actions.” Aplt.’s
Opening Br. at 77 (quoting Aplt.’s App., Vol. 10, at 1910).
We find that GMW reads too much into Mr. Crain’s statement. Even if
AsiaSat was willing to waive the backstop months before Mr. Hall entered the
narrative, there is still no evidence that the Hall Defendants caused AsiaSat to not
follow through on that willingness.
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Moreover, Mr. Crain’s statement does not speak as to whether AsiaSat
would have actually waived the backstop. Put simply, just because Mr. Crain and
AsiaSat discussed the backstop does not mean AsiaSat was more likely to have
waived that requirement. And indeed, the sequence of events here shows that,
assuming that such a discussion between Mr. Crain and AsiaSat did happen,
AsiaSat never waived or showed flexibility with the backstop condition even
before Mr. Hall came into the picture. Mr. Crain himself testifies that, although
AsiaSat extended the deadlines as to the conditions in the Cooperation
Agreement, he “presented options that AsiaSat did not accept . . . for the
backstop.” Aplt.’s App., Vol. 11, at 2304–05 (David Crain Dep. Tr., dated Jun.
30, 2016). Mr. Crain continues that “[i]t’s not that [GMW] didn’t provide
anything. It’s just [that AsiaSat] didn’t think it was good enough.” Id. at 2305.
And when Mr. Wade was asked whether “anyone from AsiaSat ever t[old]
[GMW] that it would consider waiving the requirement for a guarantee to cover
the EXIM loan,” Mr. Wade replied, “[n]ot to my knowledge.” Id., Vol. 7,
at 1452.
Similarly, when asked whether “anybody at AsiaSat ever t[old] anybody at
[GMW] that AsiaSat would consider waiving the requirement for credit support to
cover the [C]onvertible [N]ote loan,” Mr. Wade also responded, “[a]gain, not to
my knowledge.” Id. at 1453. As a result, GMW’s unfounded speculation that
AsiaSat would have waived the backstop condition because it discussed that
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possibility with Mr. Crain is undercut by actual evidence showing that those
discussions yielded not the slightest inkling of a waiver, reduction, or flexibility.
The same can be said with respect to GMW’s arguments as to the
Convertible Note condition. Like its backstop assertions, GMW avers that
AsiaSat was willing “to waive or retreat from its hard-line position on the
[C]onvertible [N]ote (which began only after [Mr.] Hall had made more generous
offers to AsiaSat).” Aplt.’s Opening Br. at 80. The district court’s error here,
GMW again rehashes, is its inappropriate weighing of the evidence that lead it to
draw inferences against GMW and ignore contrary evidence. Id.
Aside from a misguided reference to XTec (for reasons discussed supra),
however, GMW merely states that “the jury could find AsiaSat’s position was to
create a pretext to end its relationship with [GMW] so it could take a better offer
from [Mr.] Hall.” Id. at 80–81. This argument holds no water for the simple fact
that the Convertible Note requirement was part of the Cooperation Agreement
which, unlike the relevant condition in XTec, was executed way before Mr. Hall
ever entered the scene. Indeed, it was GMW who apparently thought that AsiaSat
was bluffing in their negotiations, and to that point, GMW was ready to let the
deal fall through—or “move on” in Mr. Crain’s words—if the parties “can’t close
this [C]onvertible [N]ote.” Aplt.’s App., Vol. 46, at 10818.
Finishing up its arguments as to Scenario 1, GMW attempts to be more
specific and rattles off a supposed list of evidence the district court ignored in
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rejecting GMW’s argument “that, but for Defendants’ actions, AsiaSat would
have continued to do business with [GMW], and would have waived the backstop
requirement and completed the [C]onvertible [N]ote.” Aplt.’s Opening Br. at 81.
GMW again provides no explanation as to why the evidence it lists is meaningful
and significantly moves the needle in its favor as to the matter at hand. See
id. at 81–82.
A sampling from this unexplained list includes purported evidence showing
that GMW and AsiaSat “had expressly contemplated the possibility of a waiver”;
AsiaSat and AWSF supposedly “worked for a long time” with GMW “until [Mr.]
Hall came along”; Utah State University “invested $2 million in cash in [GMW]”;
and AsiaSat had previously “extended the Cooperation Agreement.” Id.
However, like other GMW arguments we have tackled here, this is yet another
inadequately briefed argument. See, e.g., Pilatus, 582 F.3d at 1142; Exum v. U.S.
Olympic Comm., 389 F.3d 1130, 1133 n.4 (10th Cir. 2004) (“Scattered statements
in the appellant’s brief are not enough to preserve an issue for appeal.”); Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (finding that plaintiff’s
appellate arguments are inadequately briefed, and are thus waived, because
plaintiff “makes only two assertions, without citation to authority or the record,”
to support her arguments); see also McPherson v. Kelsey, 125 F.3d 989, 995–96
(6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived. It is not sufficient
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for a party to mention a possible argument in the most skeletal way, leaving the
court to . . . put flesh on its bones.” (omission in original) (quoting Citizens
Awareness Network, Inc. v. U.S. Nuclear Regul. Comm’n, 59 F.3d 284, 293–94
(1st Cir. 1995))). Accordingly, we find that GMW’s “bald assertion[] . . . that
there are genuine issues of material fact [is] insufficient to merit reversal of
summary judgment.” Adler, 144 F.3d at 679.
At bottom, GMW largely complains that AsiaSat followed the letter and
spirit of the Cooperation Agreement and chose not to deviate from it to
accommodate GMW’s failure to satisfy that agreement’s conditions. Even if we
generously assume that such an argument is reasonably brought, GMW still does
not provide any evidence whatsoever showing that Mr. Hall influenced AsiaSat to
include the conditions precedent in the Cooperation Agreement, follow that
agreement to the letter, or enforce it in the way the parties originally
contemplated, such that AsiaSat could cut ties with GMW in November 2013.
Thus, GMW’s claim that AsiaSat’s “hardline” position on the Cooperation
Agreement’s conditions precedent began only after Mr. Hall interfered with the
venture is a bald assertion contradicted by the record. See Becker, 494 F.3d at
913 n.6. Accordingly, we conclude GMW’s arguments as to Scenario 1 of their
lost profits damages theory are unfounded and unavailing.
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5
With Scenarios 3 and 1 discussed, GMW briefly turns to two arguments
regarding Scenario 2 of its lost profits damages theory. Recall that, in Scenario 2,
GMW argued that, but for Defendants’ bad acts, “[t]he Instrument [would have
been] built by [the American Manufacturer,] AsiaSat [would have] provide[d] an
equity investment and project support as reflected in the Cooperation Agreement,
and EXIM [would have] provide[d] financing based upon AsiaSat’s pledge of its
balance sheet, which AsiaSat conditioned upon an acceptable backstop to mitigate
the financial risk associated with the Instrument.” Aplt.’s App., Vol. 9, at 1762.
First, in two sentences, GMW rehashes its arguments regarding the
backstop and the Convertible Note, summarily stating that, “[f]or the same
reasons as with Scenario 1, this analysis is erroneous.” Aplt.’s Opening Br. at 83.
No additional argument is given and no other facts are referenced. Accordingly,
for the reasons explained above, we find GMW’s regurgitation of its backstop and
Convertible Note arguments to be unavailing.
Second, GMW shifts its focus to the district court’s determination that
GMW could not have obtained project financing under Scenario 2 and its
conclusion that such a scenario was entirely speculative. Id. at 83–84. GMW
argues that the court “missed the point” that GMW “could have achieved project
financing within 6 to 12 months.” Id. at 84 (emphasis omitted) (quoting Aplt.’s
App., Vol. 10, at 1947). It claims that the court discounted the purported expert
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testimony of Mr. Szamosfalvi—GMW’s former CFO—“derogatorily calling his
opinions a ‘guess,’ and rejecting his opinions” because they were apparently
contradicted by EXIM Bank’s representative, Christine Fogt. Id. at 84–85
(quoting GeoMetWatch, 2018 WL 6240991, at *14). Ms. Fogt testified that
EXIM Bank’s discussions with GMW revolved around GMW’s partnership with
AsiaSat; in her own words, “the discussion was always focused to have [GMW] in
partnership for this business proposal or the weather sensor to be a payload onto a
satellite with AsiaSat.” Aplt.’s App., Vol. 8, at 1556–57 (Christine Fogt Dep. Tr.,
dated Feb. 8, 2017). Simply put, Ms. Fogt represented that “there was no merit”
to the idea that any prospective financing for GMW’s venture was “to be a project
finance deal.” Id. at 1557.
We find that GMW, again, offers an unpersuasive argument. GMW merely
cites its former CFO’s testimony to bolster its position that EXIM Bank “would
likely have agreed to project financing.” GeoMetWatch, 2018 WL 6240991, at
*14. In other words, Mr. Szamosfalvi surmises that EXIM Bank could have
provided GMW with its needed funds—in the form of project
financing—regardless of whether AsiaSat was still part of the financing deal. See
Aplt.’s App., Vol. 10, at 1946–48 (Mr. Szamosfalvi explaining that GMW “would
have negotiated the terms of project financing with EXIM Bank throughout the
process, and sought [an] agreement upon loan terms based upon ‘Conditions
Precedent’ . . . . [when GMW] obtain[s] firm commitments [from other entities]
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for between 50% to 75% of the revenue needed”; and, among other things, “one
very important customer . . . was willing to enter into a firm purchase
commitment to purchase a sub-set of data from [GMW], before the AsiaSat loan
was submitted to EXIM” (emphasis added)). Mr. Szamosfalvi, in turn, claimed to
have based that opinion on interactions with EXIM Bank both in his role as CFO
of GMW and his prior transactions with the bank. By relying on Mr.
Szamosfalvi’s opinion, GMW relies on nothing more than pure speculation.
As the district court explained:
No reasonable juror could conclude that [GMW] could have
obtained project financing from EXIM Bank [with or without
AsiaSat] because [GMW’s] sole basis for this argument is expert
testimony submitted by its former CFO that is based upon
assumptions and opinions that are directly contrary to the
undisputed facts.
GeoMetWatch, 2018 WL 6240991, at *14.
There was just no evidence—other than a former GMW official’s bare
assertion—that GMW could obtain project financing from EXIM Bank even if
AsiaSat did not continue with the finance deal and the venture fell through. As
we explained earlier, once movants satisfy their burden to establish “that there is
an absence of evidence to support the nonmoving party’s case,” Clinger,
215 F.3d at 1165 (quoting Thomas, 48 F.3d at 484), nonmovants must “identify
specific facts that show the existence of a genuine issue of material fact.” Id.(emphasis added) (quoting Thomas, 48 F.3d at 484). And, unfortunately for
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GMW, “‘statements of mere belief’ . . . must be disregarded” at the summary
judgment stage. Argo, 452 F.3d at 1200 (quoting Tavery, 32 F.3d at 1427 n.4).
That is, “[u]nsubstantiated allegations carry no probative weight in summary
judgment proceedings.” Hasan, 935 F.3d at 1098 (quoting Bones, 366 F.3d
at 875).
Accordingly, that GMW’s former CFO believed—without objective
evidence to support that belief—that EXIM Bank would have agreed to project
financing is irrelevant to the issue because EXIM Bank itself proffered statements
showing that any potential financing would not be structured as a project finance
deal, and that there were no negotiations about any type of financing with GMW
without AsiaSat’s participation.
Particularly, Ms. Fogt explained that GMW could not “have applied for a
loan under the project finance structure” pursuant to the discussions it had with
EXIM Bank because (1) EXIM Bank’s negotiations with GMW “always focused
to have [GMW] in partnership for this business proposal or the weather sensor to
be a payload onto a satellite with AsiaSat”; (2) EXIM Bank’s “understanding” as
to the potential finance deal “was just to be a corporate direct loan transaction”
founded on “AsiaSat being an existing company [which] ha[d] been in operation
for many years”; (3) the potential finance deal was not “set up with the
understanding that repayment or evaluation repayment would only be strictly
based on future revenues of [GMW’s] project under a project finance deal”
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structure; and (4) “[t]he repayment of the loan” was understood to “be from an
existing company [AsiaSat] with an established history a[s] it was a corporate
direct loan.” See Aplt.’s App., Vol. 8, at 1556–57.
Facing Ms. Fogt’s testimony, GMW needed to proffer “evidence, including
testimony” that is “based on more than mere speculation, conjecture, or surmise.”
Hasan, 935 F.3d at 1098 (quoting Bones, 366 F.3d at 875). By merely proffering
Mr. Szamosfalvi’s belief on the matter, without anything more, GMW failed to
establish a genuine issue of material fact that EXIM Bank would have worked
with GMW to obtain project financing—with or without AsiaSat’s
participation—but for Defendants’ illicit conduct.
Specifically, GMW fails to proffer evidence that would dispute Ms. Fogt’s
testimony and establish that Mr. Szamosflavi’s belief is more than “a guess or
mere possibility.” Pioneer Ctrs., 858 F.3d at 1334 (quoting Bowen, 527 F.3d
at 1076). Mr. Szamosflavi himself was “unable to explain the terms on which the
EXIM Bank would have offered project financing,” a point that the district court
pointed out in its decision, and one which GMW does not challenge in this
appeal. GeoMetWatch, 2018 WL 6240991, at *14. To be sure, GMW states Ms.
Fogt “never said EXIM would not have considered a revised or new application
for project financing in the future.” Aplt.’s Opening Br. at 85 (emphasis added)
(emphasis and footnote omitted). But such an argument reflects a fundamental
misunderstanding of the nonmovant’s summary judgment burden: as nonmovant,
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GMW was obliged to raise a genuine dispute of material fact based on record
evidence that EXIM Bank would have considered a revised application for project
financing. And GMW failed to do so.
In other words, even if Ms. Fogt did not definitively answer whether EXIM
Bank would consider structuring a deal with GMW through project financing and
without AsiaSat’s participation—and we observe that Ms. Fogt clearly testified
that the sole focus of discussions were on issues regarding GMW’s prospective
partnership with AsiaSat, see Aplt.’s App., Vol. 8, at 1556–57—GMW proffers no
evidence showing that EXIM Bank would actually consider and then most likely
approve such a financing structure, aside from a former GMW official’s
unfounded belief. That is not enough. Thus, like the district court, we find
GMW’s arguments as to Scenario 2 to be meritless.
***
At bottom, GMW’s arguments as to Issue 1 of this appeal—i.e., whether the
district court erred in finding a lack of evidence supporting causation—fail
because GMW leaves uncontested that: (1) GMW never provided AsiaSat the
guarantee or backstop that was crucial to their deal; (2) GMW neither provided
AsiaSat the contractually-required Convertible Note, upon which AsiaSat’s
performance was conditioned, nor even attempted or intended to do so, in spite of
the plain language of the Cooperation Agreement; (3) AsiaSat had suspended the
EXIM Bank loan process months before the Hall Defendants entered the scene;
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(4) GMW never made its first contractual payment to AWSF; (5) the American
Manufacturer never agreed to provide the guarantee under the Cooperation
Agreement or build the STORM sensor; and (6) AsiaSat never agreed to even a
hypothetical arrangement involving it, GMW, and the American Manufacturer.
Critically, GMW—to its detriment—does not effectively argue that the conduct of
any of Defendants prevented it from (a) obtaining the guarantee or backstop,
(b) providing AsiaSat with the Convertible Note, or (c) making the first
contractual payment to AWSF.
In short, GMW leaves undisputed the facts that establish that it was its own
failures—occurring even before the Hall Defendants arrived—that destroyed its
own venture. Significantly, GMW’s venture was already on life-support when
Mr. Hall’s inflammatory November 3, 2013, email was sent. At that point in the
chronology of events, AsiaSat had twice extended the conditions precedent
necessary for the deal to push through. That remains undisputed, and the idea
that Mr. Hall was to blame for AsiaSat finally pulling the plug on the deal
remains unfounded.
Thus, for all these reasons, we cannot conclude that the court erred in
finding that there was no evidence showing that the cause of GMW’s lost profits
was the conduct of Defendants—particularly, the Hall Defendants. The legal
standards the district court used were appropriate. GMW’s arguments as to its
damages scenarios are waived, meritless, or unfounded in the record. The record
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and the facts themselves surely indicate it was GMW’s inability to satisfy the
Cooperation Agreement that was the cause of any of its lost profits from the
failed venture. And GMW did not proffer any contradictory evidence against
those facts. Accordingly, we find the district court did not err in awarding
summary judgment in favor of Defendants as to the causation issue.
B
We next turn to GMW’s second issue in this appeal: whether the district
court erred in finding that USURF, AWSF, and Mr. Roberts were immune from
suit pursuant to the UGIA.
The UGIA codifies in Utah law the concept of sovereign immunity, a
principle that the state cannot be sued in its own courts without its consent. See
Madsen v. Borthick, 658 P.2d 627, 629 (Utah 1983). The Utah Supreme Court
calls it “a ‘comprehensive chapter’ containing ‘waivers and retentions of
immunity’ that ‘appl[y] to all functions of government’ and ‘govern[] all claims
against governmental entities or against their employees or agents [under specific
conditions].’” GeoMetWatch, 428 P.3d at 1069 (alterations in original) (quoting
Utah Code § 63G-7-101(2)). Thus, “[u]nless immunity is waived by the [UGIA],
‘each governmental entity and each employee of a governmental entity are
immune from suit for any injury that results from the exercise of a governmental
function.’” Id. (quoting Utah Code § 63G-7-201(1)).
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By the plain terms of the statute, “‘[g]overnmental entity’ means . . . the
state and its political subdivisions.” Utah Code § 63G-7-102(4). Likewise, the
term “state,” as defined by the statute, means “the state of Utah, and includes
each office, department, division, agency, authority, commission, board,
institution, hospital, college, university, Children’s Justice Center, or other
instrumentality of the state.” Id. § 63G-7-102(10). “Political subdivision,” is
defined as “any county, city, town, school district, community reinvestment
agency, special improvement or taxing district, local district, special service
district, an entity created by an interlocal agreement . . . or other governmental
subdivision or public corporation.” Id. § 63G-7-102(8).
GMW challenges the district court’s findings that both AWSF and USURF
are governmental entities under the UGIA, more specifically, as instrumentalities
of Utah State University. GMW says that the entities are neither instrumentalities
of the state nor public corporations. Aplt.’s Opening Br. at 90, 94. While the
district court concluded that the two were instrumentalities of the state, it did not
reach the question of whether they are public corporations. So here, we engage
with the sole question the district court reached.
In responding to the district court’s certification of certain state law
questions, the Utah Supreme Court first laid out some definitions of
“instrumentality”: (1) “A thing used to achieve an end or purpose,”
GeoMetWatch, 428 P.3d at 1072 (quoting Instrumentality, B LACK ’ S L AW
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D ICTIONARY (10th ed. 2014)); (2) “A means or agency through which a function
of another entity is accomplished, such as a branch of a governing body,” id.
(quoting Instrumentality, B LACK ’ S L AW D ICTIONARY (10th ed. 2014)); (3) “A
subsidiary branch, as of a government, by means of which functions or policies
are carried out,” id. (quoting Instrumentality, A MERICAN H ERITAGE D ICTIONARY
OF THE E NGLISH L ANGUAGE (5th ed. 2016)); (4) “something that serves as an
intermediary or agent through which one or more functions of a controlling force
are carried out,” id. (quoting Instrumentality, W EBSTER ’ S T HIRD N EW
I NTERNATIONAL D ICTIONARY (14th ed. 2016)); and (5) “a part, organ, or
subsidiary branch esp. of a governing body,” id. (quoting Instrumentality,
W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY (14th ed. 2016)).
To determine whether an entity is an instrumentality of the state, the Utah
Supreme Court advised the court to ask whether USURF and AWSF are “[1]
branch[es] of the state that [2] carr[y] out state functions, and, if so, [3] whether
[both entities] and [their] functions are ‘of the same general kind, class, character,
or nature as those enumerated’ terms [found in the statute].” Id. at 1074 (quoting
State ex rel. A.T. v. A.T., 34 P.3d 228, 232 (Utah 2001)). Those “terms” are,
namely, the state of Utah, and each office, department, division, agency,
authority, commission, board, institution, hospital, college, university, and
Children’s Justice Center of the state. See id. at 1073. We find that USURF and
AWSF satisfy all three prongs of this test as a matter of law.
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To begin, it is not even clear that the question at the heart of this
governmental immunity issue is one for the jury, rather than the court to decide.
That is, GMW, as seen in the district court, attempts to generate an issue of
material fact vis-à-vis whether AWSF and USURF are governmental entities; yet,
that question is more than likely a legal question for the court. See Amundsen v.
Univ. of Utah, 448 P.3d 1224, 1229–30 (Utah 2019) (noting that compliance with
the UGIA is a prerequisite to subject matter jurisdiction and the question of
whether a court has subject matter jurisdiction “presents a question of law”
(quoting In re Adoption of Baby E.Z., 266 P.3d 702, 706 (Utah 2011))); Hall v.
Utah State Dep’t of Corr., 24 P.3d 958, 962 (Utah 2001) (“A trial court’s decision
to dismiss a case based on governmental immunity is a determination of law that
we afford no deference.” (emphasis added)); cf. Peck v. State, 191 P.3d 4, 6 (Utah
2008) (“[D]etermining the scope of an exception to the waiver of governmental
immunity is a question of statutory interpretation that we also review for
correctness.” (emphasis added)).
In any event, regarding the first prong of the Utah Supreme Court’s test
(i.e., whether both entities are branches of the state), GMW argues that “USURF
and AWSF cannot be instrumentalities of the state because they are not ‘branches’
of the state that carry out traditional state functions,” but rather are, “[a]t their
core . . . commercial entities separate from Utah State University, devoted to
making money, and without any legislative oversight.” Aplt.’s Opening Br. at 90.
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In support of this position, GMW cites a February 2013 email from Defendant
Robert Behunin, a USURF board member, in which he describes Utah State
University, AWSF, and the State of Utah as “three distinct entities with corporate
veils between them,” and states that AWSF is “its own corporate entity,”
providing the State and Utah State University protection through its corporate
veil. Id. at 90–91 (quoting Aplt.’s App., Vol. 5, at 1085 (Email from Robert
Behunin, USURF, to Gene Pache, GMW, dated Feb. 7, 2013)). “Standing alone,”
says GMW, “this email creates a disputed fact regarding whether USURF and
AWSF can be ‘branches’ of the state.” Id. at 91.
We disagree. Both entities are branches of the state. Black’s Law
Dictionary defines “Branch” as “[a]n offshoot, lateral extension, or division of an
institution.” Branch, B LACK ’ S L AW D ICTIONARY (10th ed. 2014). With that in
mind, we note that the Utah legislature specifically granted Utah State University
permission to create entities like USURF and AWSF. Utah Code § 53B-18-501
expressly states that Utah State University “may form nonprofit corporations or
foundations . . . to aid and assist the university in attaining its charitable,
scientific, literary, and educational objectives.” Utah Code § 53B-18-501(1).
That same code allows USURF to “receive and administer . . . government grants,
contracts, and private gifts to carry out [its] public purpose.” Id.
§ 53B-18-501(2).
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Moreover, as USURF points out, it “is subject to public management and
oversight at multiple levels”—not only by Utah State University, but also by the
State Board of Regents, whose Policy R271 “recognizes USURF as a
‘governmental entity for purposes of Board policy,’” “regulates how USURF
operates through contracts, specifies the subjects and scope of the contracts[,] . . .
and requires annual audits by an independent CPA.” USURF Defs.’ Resp. Br.
at 39–40 (quoting Aplt.’s App., Vol. 6, at 1103–04 (USURF Defs.’ Reply in Supp.
of Mot. for Partial Summ. J., filed Feb. 3, 2017)) (citing Aplt.’s App., Vol. 71,
at 15369 (USURF’s Suppl. Br. in Resp. to Ct.’s Order, filed Oct. 26, 2018)).
Similarly, AWSF is under the authority of Utah State University, with the
latter “maintain[ing] control and oversight of AWSF by remaining the sole
member and voting member of AWSF, retaining the right to remove any AWSF
director at any time, and requiring approval of any AWSF officer or agents” under
the Articles of Incorporation and Bylaws of AWSF. AWSF Defs.’ Resp. Br. at 33
(citing Aplt.’s App., Vol. 5, 886, 892–93 (AWSF Articles of Incorporation and
Bylaws, dated Jan. 7, 2013, and Jan. 8, 2013, respectively)). Indeed, the Utah
Supreme Court briefly noted that “USURF and AWSF are both 501(c)(3)
nonprofit corporations wholly owned or operated by [Utah State University]. . . .
Additionally, both entities’ founding boards are appointed by [the university].”
GeoMetWatch, 428 P.3d at 1068.
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As for the one email that GMW refers to—and upon which stands GMW’s
assertion that both entities are not “branches” of Utah State University—it is of
no moment. In light of what Utah statutes have elucidated, we see no reason why
this lone email from a USURF board member stating that “USU, [AWSF], and the
State of Utah are three distinct entities,” contradicts the very obvious notion that
USURF and AWSF are branches of Utah State University. 16 Aplt.’s Opening Br.
at 90. It could indeed be said they are three distinct entities under Utah Code
§ 63G-7-102(10), with Utah State University as a “university” of the State of
Utah, and USURF and AWSF as separate and independent “branches” of that
“university.”
Put differently, GMW’s assertion does not effectively challenge the
conclusion that—as branches of Utah State University—both entities are
instrumentalities of that institution, which is a governmental entity of the State of
Utah. Cf. Amundsen, 448 P.3d at 1233 (applying the UGIA’s one-year filing
period to a lawsuit brought against the University of Utah and doctors in the
university medical center because, among other reasons, “[a] patient who has
received services at a University clinic—which operates under the University’s
name with signage that advertises itself as the University’s clinic—and who then
receives an itemization of services from the University health care system, cannot
16
Note that GMW fails to explain how the email is relevant to USURF
specifically, which is not mentioned in it.
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credibly claim that she had no reason to inquire whether her treating physician
might be a State employee”; and noting that such a conclusion was “seemingly
obvious”).
As to the second prong of the Supreme Court’s test—i.e., whether both
entities carry out state functions—GMW claims that AWSF and USURF “are
primarily devoted to private, commercial enterprise—including building satellites
to be launched into space to make a profit.” Aplt.’s Opening Br. at 91. GMW
asserts without any supporting authority that such an activity is “not a state
function.” Id. It argues further that, in situations like this, “courts find no
immunity.” Id. In other words, because “USURF and AWSF have entered into
substantial contracts with private commercial entities . . . for profit,” according to
GMW, it follows that they cannot be instrumentalities of the state under the
UGIA. Id. at 92.
Again, we disagree. USURF and AWSF both carry out state functions by
assisting Utah State University in educational and scientific objectives. The Utah
Supreme Court itself stated that “USURF and AWSF were incorporated to carry
out the functions of USU.” GeoMetWatch, 428 P.3d at 1068. As explained
earlier, both entities were created pursuant to Utah Code § 53B-18-501, which
permits Utah State University to “form nonprofit corporations or foundations . . .
to aid and assist the university in attaining its charitable, scientific, literary, and
educational objectives.” Utah Code § 53B-18-501(1) (emphasis added). Were
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that not obvious enough, both entities’ articles of incorporation expressly provide
that they were formed for the purpose of Utah State University’s educational and
research goals. Specifically, USURF’s articles of incorporation state it was
organized and wholly owned by Utah State University to:
1. Conduct research in areas deemed appropriate by the
governing Board of Trustees of [USURF] and consistent with the
charitable, scientific, literary, research, educational, and service
goals of Utah State University.
2. Acquire and disseminate knowledge, support the education,
research, and public service functions of Utah State University.
. . . . [and]
7. Use or apply the whole, or any part of, resources generated by
[USURF] exclusively for charitable, scientific, literary, research,
educational, or service purposes to benefit [USURF] and Utah
State University.
Aplt.’s App., Vol. 71, at 15389–90 (USURF Articles of Incorporation, dated
Aug. 27, 2010). Similarly, AWSF’s articles state that the entity’s purpose is “[t]o
benefit, perform the functions of, and carry out the purposes of Utah State
University.” Id., Vol. 5, at 885.
Attempting to persuade us to the contrary, GMW ineffectively cites a Texas
Court of Appeals decision, Lenoir v. U.T. Physicians, 491 S.W.3d 68 (Tex. Ct.
App. 2016), and our prior opinion in U.S. ex rel. Sikkenga v. Regence Bluecross
Blueshield of Utah, 472 F.3d 702 (10th Cir. 2006), to argue that entities like
USURF and AWSF do not carry out any state functions. See Aplt.’s Opening Br.
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at 91–92. But both cases are inapposite. The former is largely irrelevant in the
context of a Utah state law question, while the latter is factually inapposite and
grapples with Eleventh Amendment sovereign immunity questions, rather than the
state statutory and procedural questions at play here. We note that this is not the
first time GMW has attempted to rely on inapposite and irrelevant cases. Before
the Utah Supreme Court, GMW “cite[d] more than a dozen cases from other
jurisdictions that deal with terms different than the ones that are at issue here.”
GeoMetWatch, 428 P.3d at 1070. “For example, many of the cases cited attempt
to define ‘arm of the state,’ which is a term relevant for Eleventh Amendment
immunity purposes.” Id. “But the governmental immunity provided under the
Eleventh Amendment is not coextensive with the coverage provided by the
[UGIA].” Id. at 1070–71. Echoing the Utah Supreme Court, we find these two
cited cases to be inapposite and irrelevant to our analysis.
Moreover, when we consider GMW’s bare assertion that building and
“[l]aunching weather satellites” for profit “is not a state function,” the caselaw
and the record establish that GMW’s claim is incorrect, especially when applied
to USURF and AWSF. Aplt.’s Opening Br. at 91. As a preliminary matter,
caselaw tends to show that launching objects into the atmosphere and space is not
an uncommon governmental undertaking. Cf. Hughes Commc’ns Galaxy, Inc. v.
United States, 34 Fed. Cl. 623, 625–26 (1995) (narrating that NASA, as part of
the functions of its “Division of Customer Relations,” entered into a contract with
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a private entity in which NASA agreed to launch the private entity’s satellites);
see also New Mexico State Univ. v. Winfrey, No. 11-10-00213-CV, 2011 WL
3557239, at *1 (Tex. App. Aug. 11, 2011) (unpublished) (case centering on a
weather balloon owned and launched by New Mexico State University).
Furthermore, Utah State University is a space-grant university, meaning it
is a part of NASA’s Space Grant program focusing on science, engineering,
research, and public outreach. See Aplt.’s App., Vol. 71, at 15371. Its mission
“is to be one of the nation’s premier student-centered land-grant and space-grant
universities by fostering the principle that academics come first, by cultivating
diversity of thought and culture and by serving the public through learning,
discovery, and engagement.” Id. Thus, launching weather satellites does indeed
comport with Utah State University’s mission. Indeed, as the district court
explained specifically with respect to USURF:
USURF has advanced the education and research objectives
stated in its articles of incorporation by giving students hands-on
experience directly related to their fields of study in engineering
and science. About twenty percent of USURF’s employees are
students. USURF also sponsors senior projects for engineering
and science students, collaborates with faculty on research
projects, funds scholarships, and provides a lecture series that
allows faculty and students to hear the latest in space science
engineering and technologies. Finally, USURF employees teach
at Utah State University as adjunct lecturers.
GeoMetWatch, 2019 WL 430886, at *4.
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In that regard, we note that the district court distinguished AWSF from
USURF since the former was founded only in 2013 17 specifically “to design and
build a weather sensor for [GMW].” Id. at *5. But because AWSF was never
fully funded due to GMW’s failure to fund the project per the Build Agreements
and other contracts, the court noted that AWSF “terminated its contract with
[GMW].” Id. Consequently, that entity “has not produced evidence of concrete
steps taken to further Utah State University’s educational and research
objectives.” Id.
Nevertheless, we agree with the district court that AWSF’s “lack of funding
. . . does not alter its essential nature and purpose.” Id. “Like USURF, [AWSF]
was created to solve real-world engineering problems while giving students
hands-on experience.” Id. And perhaps more crucial to this appeal, GMW does
not proffer any argument specifically challenging this finding regarding AWSF’s
mission. See Nixon, 784 F.3d at 1366; see also Bronson, 500 F.3d at 1104(“[T]he omission of an issue in an opening brief generally forfeits appellate
consideration of that issue.”). In sum, in our view, AWSF’s lack of “real-world”
evidence showing how it fulfills its mission is not dispositive here. Thus, we
conclude that both USURF and AWSF were designed to assist and perform the
functions of Utah State University. We reject GMW’s assertions to the contrary.
17
USURF was founded in 1967.
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And on the third prong, that is, whether both entities’ functions are of the
same general kind, class, character, or nature as those enumerated entities in Utah
Code § 63G-7-102(10), GMW first lists those entities’ “core characteristics”
which include, in GMW’s view, “(1) the legislature almost always explicitly
creates them; (2) statutes describe and prescribe their powers; (3) statutes dictate
their organizational structure; (4) they almost exclusively carry out traditional
state functions; and (5) statutes dictate their funding and budgeting mechanisms.”
Aplt.’s Opening Br. at 93 (emphases omitted) (footnotes omitted). GMW argues
that USURF and AWSF lack these characteristics, thereby distinguishing them
from § 63G-7-102(10) entities. Specifically, GMW explains that both entities
“were created by [Utah State University],” “have powers governed by legal
documents,” “have organizational structures dictated by bylaws and articles of
incorporation,” “carry out commercial activities for profit,” and “have unlimited
ability to enter into commercial contracts.” Id. at 93–94.
But this argument is meritless. As we have previously discussed, both
entities were created pursuant to a Utah statute enabling Utah State University to
create such entities. Utah State University—a governmental entity itself—and its
officials created, organized, and have the power to appoint USURF and AWSF
officers. The entities’ purposes include supporting and supplementing Utah State
University’s functions, specifically, its educational and research mission. That
fact is crucial. As the district court noted, the inclusion of “university” amongst
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the terms enumerated in § 63G-7-102(10) “indicates that the catch-all phrase
‘other instrumentality of the state’ is at least broad enough to include entities that
are similar to state institutions of higher education.” GeoMetWatch, 2019 WL
430886, at *6.
In that regard, both entities were surely created to further Utah State
University’s goals as branches of that university and are logically of the same
kind, class, character, or nature as their parent institution. See GeoMetWatch,
428 P.3d at 1074 (“determining whether an entity qualifies as an ‘other
instrumentality of the state’ requires a comparison between that entity’s specific
characteristics and those of the twelve enumerated terms [which includes the term
‘university’], keeping the dictionary definitions of the enumerated terms in
mind”). Thus, we conclude that USURF and AWSF have functions that are of the
same kind, class, character, or nature as the university that they are part of.
In sum, all three prongs discussed by the Utah Supreme Court in
GeoMetWatch, 428 P.3d at 1074, establish that USURF and AWSF are branches
of Utah State University serving to further its educational and research goals and
having functions similar to the university. Accordingly, we hold that the two
entities are instrumentalities of the State of Utah and covered by the UGIA. We
thus uphold the court’s decision to grant summary judgment in favor of USURF,
AWSF, and Mr. Roberts, who was employed by the entities.
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C
We finally turn to GMW’s last issue in this appeal: whether the district
court erred in granting partial summary judgment to AWSF on its counterclaim
for breach of contract while rejecting GMW’s affirmative defenses and cross-
motion for summary judgment.
GMW puts forward four theories that purportedly bar AWSF’s
counterclaim: (1) a fraudulent inducement defense; (2) a first breach defense;
(3) a damages offset; and (4) a contractual limitation of damages. Going through
each of them, we find that GMW’s assertions are either waived or unavailing,
much like many of its previous arguments.
1
GMW avers that the district court erred in rejecting its fraudulent
inducement defense because GMW “presented evidence that AWSF made a
material misrepresentation regarding the [PPA and Build Agreements], namely,
that AWSF would amend the contracts to extend the deadline for [GMW’s]
payments to accommodate the EXIM loan funding when AWSF knew it would not
do so.” Aplt.’s Opening Br. at 97–98 (citing Aplt.’s App., Vol. 76, at 16531–33).
GMW purports that AWSF’s misrepresentation was material because GMW relied
on AWSF’s promise that it “would extend the payment deadlines.” Id. at 98
(citing Aplt.’s App., Vol. 83, at 18220 (AWSF email to GMW, sent Sept. 3,
2013)). Specifically, in an email, AWSF told GMW that, “[i]f funding does not
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come in time, we will be required to modify the contract. It would not be our
intent to assert ‘breach,’ but we could only take that position for a limited period
of time (certainly not indefinitely).” Aplt.’s App., Vol. 83, at 18220. Another
email from GMW discusses a supposed oral representation from those associated
with the AWSF deal to GMW that AWSF would “extend the contract as
necessary.” Id. at 18304 (GMW email to Robert Behunin, sent Jan. 28, 2014).
And on that note, GMW further alleges that it only signed the STORM 001
Contract because AWSF promised that it would amend it to “say[] that this
contract is based on EXIM funding, that nothing in this contract will take place
until EXIM funding is granted and [GMW] ha[s] it in hand.” Id. at 18264
(Eugene Pache Dep. Tr., dated May 10, 2016).
GMW concludes by stating that AWSF’s misrepresentation induced GMW
to make the contract and GMW was justified in its reliance. Aplt.’s Opening Br.
at 97, 99. Thus, according to GMW, the district court “should have drawn the
inference from these facts that AWSF intended to replace [GMW] with [Mr.] Hall,
and induced [GMW] to sign the contracts so [Mr.] Hall could assume [GMW’s]
role when AWSF terminated the contracts.” Id. at 100.
GMW explains that “[a] contract is voidable for fraud if four elements are
met: (1) there is a misrepresentation; (2) the misrepresentation was either
fraudulent or material; (3) the misrepresentation induced the recipient to make the
contract; and (4) the recipient was justified in relying on the misrepresentation.”
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Aplt.’s Opening Br. at 97 (citing Miller v. Celebration Mining Co., 29 P.3d 1231(Utah 2001)). 18
The record contradicts GMW’s assertions about AWSF’s so-called
“material misrepresentation.” There is simply no evidence—either direct or
circumstantial—that AWSF made the representations at issue with an intent to
disregard them. GMW itself does not aid its contention, failing to cite anything
in the record that would show how AWSF’s representations were made with
intentional falsity. Indeed, GMW’s ultimate theory as to why AWSF intended to
materially misrepresent the prospects of a contract extension is absurd and
rendered false when the record is examined. According to GMW, AWSF
conspired with the Hall Defendants to cause GMW to breach its agreements with
AWSF so that AWSF could terminate those agreements and permissibly enter into
similar contracts with Mr. Hall. See Aplt.’s Opening Br. at 100.
However, as the district court wrote, “[i]t defies plausibility that AWSF
wanted to execute enforceable Build Agreements while simultaneously intending
to lure [GMW] into materially breaching those agreements three months later in
order to terminate them . . . . Clearly, AWSF could have achieved that aim—if it
18
At the district court, the parties disagreed on the correct standard to
use in evaluating GMW’s affirmative defense. See GeoMetWatch, 2019 WL
3937023, at *4. In this appeal, however, “AWSF does not dispute the applicable
standard because [it reasons that] GMW fails to meet its own proposed test,”
which shares certain elements with AWSF’s proposed test presented to the district
court. AWSF Defs.’ Resp. Br. at 49 n.27.
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existed at the time of contracting—by declining to execute the agreements in the
first place.” GeoMetWatch, 2019 WL 3937023, at *5. It is indeed unreasonable
to infer that AWSF would go through all the trouble to induce GMW to sign the
PPA and Build Agreements only for it to dump GMW for Mr. Hall and Tempus,
when it could just decide to shun any deal with GMW in the first instance. This
is essentially the type of “unreasonable” inference based on speculation, guesses,
and mere possibility, that we disregard at the summary judgment stage. Pioneer
Ctrs., 858 F.3d at 1334; cf. Roe v. Cheyenne Mountain Conf. Resort, Inc.,
124 F.3d 1221, 1235 (10th Cir. 1997) (“We view the evidence and make all
reasonable inferences therefrom in the light most favorable to the party opposing
summary judgment.” (emphasis added)).
In any event, the sequence of events as gleaned from the record fully shuts
the door on the theory’s reasonableness. As narrated above, Mr. Hall was
introduced to GMW on September 20, 2013, by GMW’s own attorney. The first
agreement AWSF signed with GMW—the PPA—was executed on September 19,
2013, just one day before Mr. Hall was introduced to GMW. And the email
stating that AWSF would extend payment deadlines if necessary was sent on
September 3, 2013. Thus, in light of the record, GMW’s arguments regarding
fraudulent inducement are chronologically impossible. It could not be AWSF’s
intent to provide false information to GMW for Mr. Hall’s benefit when he was
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not a part of negotiations (or even present as a party in the whole saga) when
AWSF and GMW entered into the PPA.
Additionally, we find waived any argument that GMW may have as to
whether the district court erred in finding that GMW did not justifiably rely on
any alleged misrepresentation. This is because GMW merely offers a conclusory,
contrary claim that the misrepresentations induced GMW to enter into the
contracts and it justifiably relied on those misrepresentations. Aplt.’s Opening
Br. at 97, 99. Nothing else. We find the bald assertion inadequately briefed and
thus waived. See Pilatus, 582 F.3d at 1142; Exum, 389 F.3d at 1133 n.4; Adler,
144 F.3d at 679.
Similarly, GMW offers no rebuttal to the district court’s additional reasons
for rejecting its fraudulent inducement defense. The court rightly pointed out
that, even if GMW relied on these representations, such reliance was
unreasonable, given that AWSF and GMW were sophisticated entities that
thoroughly negotiated the Build Agreements and the PPA. See GeoMetWatch,
2019 WL 3937023, at *5–6.
In light of this context—not to mention the more than $100 million at
stake—GMW cannot excuse its failure to perform by pointing to alleged oral
promises made by AWSF during the negotiations that did not make their way into
the final, written contracts. See id.; cf. Semenov v. Hill, 982 P.2d 578, 581 (Utah
1999) (noting that the sophistication of contracting parties, which includes
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English language proficiency, is material to a fraud claim); Conder v. A.L.
Williams & Assocs., Inc., 739 P.2d 634, 638 (Utah Ct. App. 1987) (“If plaintiff
can claim reliance on the basis of the kind of statement on which no reasonable
person would rely for one reason or another, then it is quite likely that plaintiff
did not rely [on that statement] and if his testimony that he did is allowed as
sufficient evidence on the basis of which a finder of fact can find reliance, then it
will be too easy for a party to a contract to escape the consequences of his own
bad judgment in making a bargain of some kind.” (quoting William Prosser & W.
Page Keeton, T HE L AW OF T ORTS § 108 749–50 (5th ed. 1984))); cf. also
Burningham v. Westgate Resorts, Ltd., 317 P.3d 445, 451 (Utah Ct. App. 2013)
(“[S]ophisticated business parties are charged with knowledge of the terms of the
contracts they enter into.” (quoting ASC Utah, Inc. v. Wolf Mountain Resorts, LC,
245 P.3d 184, 193 (Utah 2010))).
Moreover, GMW has not even argued that its breach of the Build
Agreements was somehow caused by or related to the alleged fraudulent
misrepresentations. In other words, GMW’s failure to remit its first payment to
AWSF was unrelated to the execution of the contracts themselves. And, beyond
this, GMW has offered nothing beyond unfounded, rank speculation to support the
notion that it would have been able to remit that payment at some future date.
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Thus, GMW’s unsupported and implausible fraudulent inducement defense
does not defeat AWSF’s counterclaim, and the district court did not err in
rejecting it and granting AWSF summary judgment.
2
Next, GMW contends that the trial court erred by finding that AWSF did
not initially “breach the Build Agreements” before GMW did. Aplt.’s Opening
Br. at 101. GMW notes that it “alleged in its Third Amended Complaint that
AWSF breached the PPA.” Id. at 102. GMW continues that it “consistently
alleged through the litigation that AWSF breached the confidentiality . . . and the
exclusivity provision[s] of the PPA.” Id. For support, GMW merely cites the
Third Amended Complaint, the PPA, and its briefing before the district court,
which contains sparse references to the record, the materiality of which are not
explained in GMW’s appellate briefs. See id.
In light of the insufficient way GMW chose to brief this argument before
us, it is likely that GMW has waived any challenge as to its “first breach”
defense. But we formally need not reach that conclusion since GMW’s argument
is flatly incorrect—viewed in the light of GMW’s own conclusory words and
references. Specifically, GMW claims that it was AWSF who breached the Build
Agreements. But GMW then goes on to argue that AWSF breached the PPA.
GMW never explains why breaching the PPA is tantamount to breaching the
Build Agreements. The district court noted the same inconsistency. See
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GeoMetWatch, 2019 WL 3937023, at *11. And it is telling that GMW again
completely ignores the district court’s analysis—perhaps because there is nothing
in the record that shows AWSF did in fact breach the Build Agreements.
Thus, we find that GMW anchored its “first breach” defense on an
allegation of AWSF’s breach of the wrong contractual agreement, while citing
seemingly irrelevant and unexplained documents in the record. We thus conclude
this argument is both unconvincing and insufficiently briefed to warrant any
further review.
3
GMW claims that the district court erred in determining “that AWSF was
entitled to $39,030.44 for costs it incurred after execution of the contracts, i.e.,
the costs AWSF incurred in October 2013.” Aplt.’s Opening Br. at 103 (citing
GeoMetWatch, 2019 WL 3937023, at *7–9). As GMW reasons, the court’s
decision was erroneous because it “ignored the undisputed fact that [GMW] offset
the costs AWSF incurred post contract formation by paying AWSF $250,000 in
September and October 2013.” Id.This argument likewise fails at the outset and upon further inspection.
GMW, again, ignores—or perhaps avoids—the district court’s reasoning as to
why it declined to reduce AWSF’s award. The court noted that GMW’s offset
payments “have already been used to reduce AWSF’s damages by enabling AWSF
to avoid expenditures it would have been forced to incur in their absence.”
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GeoMetWatch, 2019 WL 3937023, at *10. Accordingly, “[t]he court can discern
no principle for, in essence, deducting $250,000 from AWSF’s damages twice.”
Id. And indeed, AWSF did not seek to recover expenditures that the $250,000
offset payment covered. See id.; AWSF Defs.’ Resp. Br. at 55–56.
Despite the court’s clear reasoning, GMW in this appeal fails to provide a
direct rebuttal to persuade us that AWSF’s award should have been reduced
further in light of the offset payment. Even in the context of pro se litigants,
“[t]he first task of an appellant is to explain to us why the district court’s decision
was wrong.” Nixon, 784 F.3d at 1366. It necessarily follows that GMW was
obliged to carry this burden here, and it failed to do so. That is, GMW’s
inadequate briefing and failure to even argue against the court’s clear conclusions
and reasoning leaves us nothing to review as to its claim that it already offset
AWSF’s damages. We therefore reject GMW’s argument as both unpersuasive
and inadequately briefed.
4
Lastly, GMW argues that the district court erred by ignoring the PPA and
Build Agreements’ “damage limitation provisions . . . on which [AWSF’s]
counterclaim is based,” which would “bar AWSF from recovering its damages as
a matter of law.” Aplt.’s Opening Br. at 105. As GMW sees things, the “only
damages AWSF seeks on its counterclaim are consequential damages which are
barred by the contracts.” Id. at 106. “AWSF’s alleged damages are consequential
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damages,” says GMW, “because they were the losses caused by the ‘absence of
[GMW’s] performance.’” Id. (quoting Trans-W. Petroleum, Inc. v. United States
Gypsum Co., 379 P.3d 1200, 1207 (Utah 2016)). “Had [GMW] made those
payments, the expenses incurred by AWSF would have been recouped (and then
some) as it worked to manufacture the sensor.” Id. at 107.
Damages for breach of contract generally include “general damages, i.e.,
those flowing naturally from the breach, and consequential damages, i.e., those
reasonably within the contemplation of, or reasonably foreseeable by, the parties
at the time the contract was made.” Beck v. Farmers Ins. Exch., 701 P.2d 795,
801 (Utah 1985). “[C]onsequential damages ‘mean[ ] particular items of damages
which result from circumstances peculiar to the case at hand.’” Trans-W.
Petroleum, 379 P.3d at 1207 (second alteration in original) (quoting Prince v.
Peterson, 538 P.2d 1325, 1328 (Utah 1975)). Put differently, consequential
damages are “the natural, but not necessary, result of an injury.” Id. (emphasis
added) (quoting Cohn v. J.C. Penney Co., 537 P.2d 306, 308 (Utah 1975)).
General and consequential damages have traditionally been considered to be two
different types of expectation damages which is “the amount necessary to ‘place
the nonbreaching party in as good a position as if the contract had been
performed.’” Alta Health Strategies, Inc. v. CCI Mech. Serv., 930 P.2d 280,
284-85 (Utah Ct. App. 1996) (emphasis added); see also Trans-W. Petroleum,
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379 P.3d at 1206 (“Our courts have alternatively, but equally correctly, defined
expectation damages as including” general damages and consequential damages.).
On the other hand, “damages based on an [injured party’s] reliance
interest” are “[e]xpenditures made in preparation for performance or in
performance, less any loss that the party in breach can prove with reasonable
certainty the injured party would have suffered had the contract been performed.”
R ESTATEMENT (S ECOND ) OF C ONTRACTS § 349 (1981) (emphasis added)
[hereinafter “R ESTATEMENT (S ECOND )”]. In other words, “reliance damages” are
“damages to return the plaintiff to the position the plaintiff enjoyed before relying
on the promise.” Richards v. Brown, 222 P.3d 69, 83 (Utah Ct. App. 2009)
(emphasis added), aff’d 274 P.3d 911 (Utah 2012); see also Trans-W. Petroleum,
379 P.3d at 1206 n.11 (explaining that “the remedy for breach of a contract in
general . . . is not limited to expectation damages. Other potential remedies may
include substitution performance costs and reliance damages.” (emphases
added)); SOLIDFX, LLC v. Jeppesen Sanderson, Inc., 841 F.3d 827, 837–41
(10th Cir. 2016) (applying Colorado law to permit recovery of reliance damages
but not lost profits deemed to be consequential damages); see also GeoMetWatch,
2019 WL 3937023, at *10 (explaining that “[t]he elusive distinction between
general and consequential damages typically arises only in breach of contract
actions seeking expectation damages, and there appears to be no Utah case
applying these concepts to the recovery of reliance damages,” but “the court has
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little trouble concluding that AWSF’s damages do not fall into the handful of
damages categories deemed consequential, special, or indirect” because reliance
expenditures in this matter were “‘necessary’ to perform under the Build
Agreements,” “AWSF does not seek damages that are ‘secondary’ to the Build
Agreements,” and there is “nothing ‘peculiar’ or ‘unique’” about the claimed
damages).
As damages for its breach of contract counterclaim, AWSF sought recovery
of the payroll and operational expenses it incurred as start-up costs for its venture
with GMW. See AWSF Defs.’ Resp. Br. at 57. In other words, it sought to
recover for “[e]xpenditures made in preparation for performance or in
performance.” R ESTATEMENT (S ECOND ), supra, § 349 (1981) (emphasis added).
The district court characterized these expenses as “reliance damages,” see
GeoMetWatch, 2019 WL 3937023, at *7; this comports with Utah caselaw. By
recovering its initial expenditures in preparation for building the STORM sensor,
AWSF is restored to its position prior to entering into the Build Agreements with
GMW—or in other words, prior to its reliance on GMW’s promise to pay.
Characterizing these expenditures as “reliance damages” is correct, and GMW
fails to advance a convincing argument to the contrary.
In essence, GMW makes a circular argument that, because its own breach
deprived AWSF of anticipated profits from the STORM sensor, and because those
lost profits may have allowed AWSF to recoup its initial outlay of payroll and
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operational expenditures, AWSF is really seeking consequential damages, and
therefore cannot recover its damages based on the language of the Build
Agreements. This argument is meritless.
***
In sum, we find that the district court properly rejected GMW’s affirmative
defenses and awarded AWSF summary judgment. GMW’s fraudulent inducement
defense fails because there is no evidence that AWSF sought to induce GMW to
enter into the PPA and Build Agreements with the intent to cancel the contracts in
favor of Mr. Hall later on. GMW’s first breach defense fails because there is no
evidence that AWSF was the first to breach the Build Agreements. GMW’s
damages offset claim is meritless because it fully avoids the district court’s
reasoning and fails to establish that the $250,000 GMW paid AWSF offset the
damage award that the district court granted. And, lastly, GMW fails to persuade
us that AWSF’s damages are consequential damages barred by the PPA and Build
Agreements. Thus, we reject GMW’s appeal on these issues.
IV
In ending our resolution of this appeal, we address certain pending motions.
There are three motions to seal pending in this appeal. Namely, GMW’s
December 12, 2019, motion to seal portions of the Opening Brief and the
Appendix, Defendants’ June 11, 2020, motion to seal their Briefs, and GMW’s
August 4, 2020, motion to seal its Reply Brief. Defendants in particular state that
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they oppose GMW’s motions to seal, but nevertheless, “out of an abundance of
caution,” request us to seal their Briefs if we find merit in GMW’s assertions.
See Aplees.’ Mot. to Seal Briefs at 2. We deny all these motions.
Under Rule 25.6 of our local rules, “[a]ny party who seeks to file any
document under seal . . . must overcome a presumption in favor of access to
judicial records.” 10th Cir. R. 25.6; see also Eugene S. v. Horizon Blue Cross
Blue Shield of N.J., 663 F.3d 1124, 1135–36 (10th Cir. 2011) (discussing the
“heavy burden” a movant must carry to overcome this presumption). In seeking
to overcome this presumption, motions for leave to file under seal must do the
following: (1) “identify with particularity the specific document containing the
sensitive information”; (2) “explain why the sensitive information cannot
reasonably be redacted in lieu of filing the entire document under seal”;
(3) “articulate a substantial interest that justifies depriving the public of access to
the document”; (4) “cite any applicable rule, statute, case law, and/or prior court
order having a bearing on why the document should be sealed, keeping in mind
that this court is not bound by a district court’s decision to seal a document
below”; and (5) “comply with Tenth Circuit Rule 27.1 [outlining requirements for
motions].” 10th Cir. R. 25.6(A)(1)–(5). Moreover, because “[r]edaction is
preferable to filing an entire document under seal,” “the party seeking to protect
sensitive information shall publicly file a redacted version of the document
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concurrently with the motion to seal,” “unless redaction is impracticable.”
10th Cir. R. 25.6(B).
As with its merits briefing in this case, GMW’s motions to seal portions of
its Briefs and Appendix are deficient and unconvincing. GMW fails to
show—and fails to even argue—why redaction in lieu of sealing does not
adequately protect any privacy interests it may have in certain portions of the
record. In making its “wholesale request to seal,” then, GMW “overlooks our
presumption in favor of the ‘common-law right of access to judicial records.’”
United States v. Camick, 796 F.3d 1206, 1213 n.5 (10th Cir. 2015) (quoting
JetAway Aviation, LLC v. Bd. of Cnty. Comm’rs, 754 F.3d 824, 826 (10th Cir.
2014)).
In addition, GMW’s filings lack the requisite particularity to carry its
burden. GMW was given two opportunities, via supplemental briefs, to
demonstrate its substantial interest in depriving the public of access to these
documents and in showing why redaction is infeasible beyond being
time-consuming. See 10th Cir. Order at 3, Dec. 16, 2019; 10th Cir. Order at 2–3,
Jan. 8, 2020. Yet GMW has continued to rely on generalities and speculation,
along with unfounded fears that, somehow, Defendants will be able to use our
disposition as preclusive on the issue of whether certain of GMW’s materials are
trade secrets or otherwise confidential. Simply put, GMW bears the burden of
overcoming our public-access presumption. Its underlying motion and
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supplements have failed to carry that burden. Accordingly, we deny GMW’s and
Defendants’ motions.
V
For the reasons discussed in this opinion, we find all of GMW’s arguments
either waived or unavailing. As a result, we AFFIRM the district court’s
judgment in this case.
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