Bluesky Greenland Envtl. Solutions, LLC v. 21ST Century Planet Fund, LLC

• Decision Date: 04 December 2013
• Docket Number: Case No. 12–81234–CIV.
• Citation: 985 F.Supp.2d 1356
• Parties: BLUESKY GREENLAND ENVIRONMENTAL SOLUTIONS, LLC, plaintiff, v. 21ST CENTURY PLANET FUND, LLC, HBL Power Systems, Ltd., Gregory E. Georgas, Michael P. Hoban, Venkat Kumar Tangirala and Ravi Kumar Tangirala, defendants.
• Court: U.S. District Court — Southern District of Florida

985 F.Supp.2d 1356

BLUESKY GREENLAND ENVIRONMENTAL SOLUTIONS, LLC, plaintiff,

v.21ST CENTURY PLANET FUND, LLC, HBL Power Systems, Ltd., Gregory E. Georgas, Michael P. Hoban, Venkat Kumar Tangirala and Ravi Kumar Tangirala, defendants.

Case No. 12–81234–CIV.

United States District Court,

S.D. Florida.

Dec. 4, 2013.

John Philip Hess, Miami, FL, Stephen E. Menn, Law Office of Stephen E. Menn, Houston, TX, for Plaintiff.

Joseph Gregory Santoro, Stacey Cole Ibarra, Gunster, Yoakley & Stewart, P.A., West Palm Beach, FL, for Defendants.

ORDER DENYING DEFENDANT 21ST CENTURY PLANET FUND LLC and GREGORY GEORGAS' MOTION FOR SUMMARY JUDGMENT [ECF No. 32]

HURLEY, District Judge.

Preface

Plaintiff Bluesky Greenland Environmental Solutions, LLC (“Bluesky”) is suing the abovenamed defendants for (1) common law fraud (2) civil conspiracy (3) unjust enrichment and (4) tortious interference following the loss of its master distributorship contract with Rentar Environmental Solutions, Inc. (“Rentar”).¹ Defendants 21st Century Planet Fund LLC (“21st Century/Delaware”) and Gregory E. Georgas (“Georgas”) previously moved to dismiss the plaintiff's first amended complaint for failure to state a claim under Rule 12(b)(6) [ECF 32], and the court converted the motion into one for summary judgment and gave the parties the opportunity to file additional evidence and argument. Following extended discovery, submission of supplemental briefing and lengthy oral argument on the issues raised, the court granted plaintiff's request to file a second amended complaint to more specifically set forth the factual predicate for its fraud-based claims, to better articulate its evolving theory of the case, and to conform the pleadings to the evidence. The plaintiff has since filed its second amended complaint [ECF 150] which the court accepts as the plaintiff's operative pleading. Having carefully considered the substantial evidence developed on the summary judgment record, together with the parties' supplemental briefing and presentations at oral argument, the court has concluded that the defendants' motion for summary judgment should be denied.

I. Fact Background²

Bluesky is a Texas limited liability company formed for the purpose of marketing and exporting environmentally-friendly products and services. On October 15, 2007, Bluesky entered into a three-year “Master Distributor Agreement” (“Bluesky MDA”) with Rentar Environmental Solutions Inc. (“Rentar”), the manufacturer of a pre-combustion fuel catalyst device designed to enhance combustion, resulting in increased fuel efficiency and emissions reduction. Rentar markets its product worldwide through independent wholesale distributors, such as Bluesky. Under the Bluesky MDA, Bluesky was assigned the “non-exclusive territory” of the “U.A.E. [United Arab Emirates], Qatar, Pakistan, Bangladesh and Saudi Arabia,” with the following caveat:

It is not the intention of Rentar to assign these territories to another distributor, but the territories remain non-exclusive.

[ECF 138–1, p. 43].

The Bluesky MDA contained a “merger and integration clause,” including a requirement that any amendment to the agreement be in writing:

Any modification to this Agreement must be in writing and signed by all parties to this Agreement. Other than the terms of this Agreement, no verbal or written promises, representations, guarantees or agreements exist or are being relied upon. This Agreement supersedes any prior agreement and is not transferable. If any term of this Agreement is found to be unenforceable, the other terms of this Agreement shall remain in full force and effect. Fax signature is acceptable to all parties.

[MDA, paragraph 20].

The Bluesky MDA prescribed a contractual term of three years, with provision for automatic annual renewal thereafter [MDA § 4], subject to the ability of either party to terminate the agreement at will at any time with advance written notice [MDA § 16].

Although India was not included in Bluesky's designated sales territory, it is plaintiff's contention that the agreement was subsequently modified, orally and by a continuing course of conduct between the parties, to add India to Bluesky's non-exclusive territory. Thus, Bluesky contends that it began focusing its marketing efforts on the Indian market as early as December 2007; that Rentar was aware of and encouraged these efforts; that in December 2008, Rentar described Bluesky to prospective customers as Rentar's “Distributor for India and the Middle East” [ECF 153, p. 5; ECF 92–2, p. 25]; that Bluesky developed contacts in India which it identified on customer lists provided to Rentar for inclusion in Rentar's “Registry,” the formal mechanism by which Rentar distributors identified sales contacts cultivated in non-exclusive sale territories in order to protect their entitlement to commissions on future sales generated from those contacts; that in June 2009 Bluesky supplied a customer list to Rentar which included an entity named HBL Power Systems Ltd. (“HBL”); that when Bluesky's managing member, Abid Ansari, complained to Rentar about another distributor holding itself out on the Internet as Rentar's “exclusive” Indian agent, Brian Gibbons, Rentar's Senior Vice–President and COO, assured him that the misstatement would be corrected and that, in any event, Gibbons would ensure that all future inquiries from the Indian market would be channeled directly to Ansari and that Bluesky's economic interests in India would always be protected.

Between October 2007 and October 2010, Bluesky expended $250,000.00 to develop a customer base in the Indian market, developing consumer good will and Rentar brand recognition through on-the-ground field research projects and free trial offers. Notably, Bluesky provided free trials of the Rentar catalyst unit to “APSRTC,” a government-owned bus company with a fleet of 23,000 buses.

In March 2010, Gregory Georgas (“Georgas”), a Florida businessman, created 21st Century Planet GP Ltd., a Cayman Islands limited partnership, for potential foreign business and investment. Georgas was the sole and managing member of 21st Century GP Ltd., which Georgas states has been referred to as “21st Century Planet Fund, LP.” [Affidavit of Georgas; ECF 106–2, ¶ 3]. ³ Without passing on the legal significance of this casual shift in nomenclature, based on Georgas' affidavit, the court shall presume that “21st Century Planet Fund, LP” functions as a fictitious name for 21st Century Planet GP Ltd., and shall refer to it within the confines of this summary judgment proceeding as “21st Century/Cayman.” About this same time, Georgas met Richard Ford, Rentar's President, and offered the services and valuable political connections of 21st Century/Cayman as a medium for marketing the Rentar fuel catalyst in the United States and throughout the world.

On June 10, 2010, Georgas individually purchased 100,000 common shares of Rentar at a cost of $1 per share, with an option to purchase an additional 400,000 shares by December 30, 2010 at the same price.

Two weeks later, on June 24, 2010, 21st Century/Cayman entered into a “Reseller Agreement, International” which authorized 21st Century/Cayman to market and distribute Rentar products in India, described in the agreement as a non-exclusive territory. On July 5, 2010, 21st Century/Cayman entered into a “Master Distributor Agreement” which authorized 21st Century/Cayman to market and distribute Rentar products in the non-exclusive territory of the United States and Canada [ECF 106–2].

Before forming these contractual ties with Rentar, in January 2010, 21st Century/Cayman contracted with Edge Solutions, LLC (“Edge Solutions”), to secure technical guidance, consultation and assistance in developing renewable energy ventures with the United States government. Michael Hoban was and is the managing partner of Edge Solutions. On July 1, 2010, 21st Century/Cayman expanded its consulting agreement with Edge Solutions to cover services related to 21st Century/Cayman's marketing of the Rentar fuel catalyst product.

While acknowledging the existence of these contractual relationships, Georgas today denies ever authorizing Hoban to act as his individual agent, and denies ever representing to Bluesky or anyone else that Hoban was the agent or representative of Georgas or 21st Century/Cayman.

On June 28, 2010, Rentar introduced Ansari to Hoban in a telephone conference call. At the conclusion of the call, at 5:50 p.m., Hoban emailed to Georgas a memorandum captioned “Summary of call with Rentar's Indian Distributor” relaying the high points of the exchange. Hoban stated that Ansari had agreed to work with 21st Century/Cayman “on all THEIR deals including the bus company.” He explained that Ansari had been working with the Indian bus company for two years, but faced delays when the company management changed hands; that Ansari admitted his contacts and local representatives were at a “much lower level” than 21st Century/Cayman's contacts, and that Ansari had agreed to travel to West Palm Beach on July 8th “to sit down with Rentar and us to negotiate and sign an agreement to work together.”

Hoban quipped that “Abid [Ansari]'s team is like a high school basketball player while we are offering LeBron James, yet he thinks that we should split all of India evenly.” At the same time, Hoban said he explained to Ansari that “our Indian partners will insist that [Ansari's] people be shut out of all high level meetings in India” and that Ansari agreed to this arrangement. Hoban asked Georgas how he wanted to handle the meeting with Ansari on July 8th, noting that “Brian [Gibbons] seems to pushing that we split all of India with Abid while Richard [Ford] is open to us only working with Abid on projects where he adds value.” Finally, Hoban advised Georgas that “[o]ur Indian Team has shown the Rentar briefing to both Indian and the Philippines government officials,” who were both interested and...