MidAmerica C2L Incorporated et al v. Siemens Energy, Inc.
Filing
339
ORDER granting 336 Siemens Energy, Inc.'s Renewed Motion for Summary Judgment. The Clerk is DIRECTED to enter judgment for Defendant Siemens Energy, Inc., as to Counts II, IV, V, and VI of the 63 First Amended Complaint. Signed by Judge Paul G. Byron on 2/5/2024. (ND)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MIDAMERICA C2L
INCORPORATED and SECURE
ENERGY, INC.,
Plaintiffs,
v.
Case No: 6:17-cv-171-PGB-LHP
SIEMENS ENERGY, INC.,
Defendant.
/
ORDER
This cause is before the Court on Siemens Energy, Inc.’s (“Siemens”)
Renewed Motion for Summary Judgment. (Doc. 336 (the “Motion”)). Plaintiffs
MidAmerica C2L Inc. and Secure Energy Inc. (collectively “Secure”) submitted a
Response in Opposition (Doc. 337), and Siemens Energy, Inc. replied. (Doc. 338).
Upon due consideration, the Motion is granted.
I.
BACKGROUND
This lawsuit arises from a contract dispute between Plaintiffs, Secure
Energy, Inc. and its subsidiary MidAmerica C2L, Inc., and Defendant Siemens.
(Doc. 63, ¶¶ 5–8). On December 24, 2007, Secure and Siemens executed a contract
(the “2007 Contract”) requiring Siemens to sell certain equipment to Secure for
use at a coal gasification plant located in Decatur, Illinois, where Secure planned
to operate an industrial facility for the conversion of coal into natural gas. (Id. ¶¶
5, 8). Secure paid Siemens approximately $40 million for the equipment. (Id. ¶
10). On March 31, 2010, Secure and Siemens executed a contract (“2010
Completion Agreement”) stating that both parties had fulfilled their
obligations to each other under the 2007 Contract. (Id. ¶ 11). On the same day,
Secure and Siemens entered into a License and Service Agreement (“2010
License Agreement”) through which Siemens granted Secure a license to use
certain of its patented technologies for the development, construction, and
operation of the Decatur, Illinois, coal gasification plant. (Id. ¶ 12).
On July 18, 2012, the 2010 License Agreement was terminated by mutual
agreement, and, on the same day, MidAmerica C2L Inc. and Siemens entered into
a new License and Service Agreement (“2012 License Agreement”) in which
Siemens granted MidAmerica C2L Inc. a license to use certain of its technologies
for a coal gasification plant in West Paducah, Kentucky, where MidAmerica C2L
Inc. would convert coal into methanol. 1 (Id. ¶ 16). In both the 2010 and 2012
License Agreements, Siemens agreed to provide technology, engineering services,
technical field assistance, training, and performance guarantees relating to the
Equipment conveyed in the 2007 Contract in exchange for a license fee. (Id. ¶¶
12–13, 16–17).
1
Secure’s attempt to operate a coal gasification plant in Decatur, Illinois, did not come to
fruition, and in July 2012, Secure’s focus turned to the operation of a plant in West Paducah,
Kentucky, to convert coal into methanol. (Doc. 63, ¶ 16). Plaintiff also tried to employ coal
gasification to manufacture gasoline and fertilizer. (Id. ¶ 17). The Kentucky plant never
materialized. (Id. ¶¶ 20–24).
2
On February 2, 2016, Siemens informed Secure that Siemens would be
closing the fuel gasification division of its business. (Doc. 169, p. 20, ¶ 8). On
February 11, 2016, Secure demanded rescission of the 2007 Contract and return
of all monies paid by Secure under the 2007 Contract. (Doc. 149-7, pp. 66–69;
Doc. 169, p. 20, ¶ 9). In response, on February 17, 2016, Siemens informed Secure
that Siemens will not violate any contractual obligation by its strategic exit from
the coal gasification business. (Doc. 149-7, pp. 70–71; Doc. 169, p. 20, ¶ 10). The
parties met on March 2, 2016. (Doc. 169, p. 20, ¶ 11). Then, on March 18, 2019,
Siemens offered to extend deadlines for completion of its performance tests as
defined by the 2012 License Agreement from December 31, 2015, to December
31, 2021, if Plaintiffs paid the full remaining balance of the fee required under the
2012 License Agreement on or before July 1, 2016. (Doc. 149-7, pp. 72–73; Doc.
169, p. 20, ¶ 12). Plaintiffs rejected Siemens’ offer on March 31, 2016. (Doc. 1497, p. 74; Doc. 149-8, pp. 2–3; Doc. 169, p. 20, ¶ 13). On April 14, 2016, Siemens
revoked its offer and demanded payment of a termination fee under the 2012
License Agreement. (Doc. 149-8, pp. 4–6). On April 19, 2019, Siemens invoiced
MidAmerica C2L Inc. for the termination fee. (Doc. 169, p. 20, ¶ 15). In May 2018,
Siemens closed its coal gasification division. (Id. ¶ 16).
Plaintiffs maintain that Siemens learned of material design defects in the
equipment sold to Secure at some time between October 31, 2010, and September
2011 “based on the experience of a plant in China that used identical” equipment.
(Doc. 63, ¶ 14). Plaintiffs allege six Counts against Siemens: Breach of Contract
3
(Count I); Breach of Warranty of Fitness for Particular Purpose (Count II);
Fraudulent Misrepresentation – Siemens’ Support of Project (Count III);
Fraudulent Misrepresentation – Failure to Disclose Defects in Technology (Count
IV); Rescission – Fraud (Count V); and Rescission – Failure of Consideration
(Count VI). (Id. ¶¶ 25–92). Siemens counter-sued Plaintiffs for breach of contract
arising from Plaintiffs’ failure to render payment for the License and Service
Agreement as required. (Doc. 75, pp. 20–21).
The Court granted in part Siemens’s motion for summary judgment, (Docs.
203, 208), the parties proceeded to trial on Siemens’s breach of contract
counterclaim, and the jury returned a verdict for Siemens. (Doc. 287). The
Eleventh Circuit affirmed the district court’s entry of summary judgment for
Siemens, the denial of Secure’s belated motion for leave to amend the complaint, 2
and the ruling on the motions in limine. (Doc. 315). About a year later, the
Eleventh Circuit applied a prudential forfeiture rule announced in United States
v. Campbell, 26 F.4th 860 (11th Cir. 2022), and found it could not consider the
alternative grounds for summary judgment not raised on appeal. (Doc. 319, p.
30). Accordingly, the Eleventh Circuit reversed its earlier affirmance of summary
judgment as to Counts II, IV, V, and VI. 3 (Id. at 32).
2
Secure sought leave to file a second amended complaint more than two years after the deadline
for amending pleadings and after the parties briefed summary judgment. (Doc. 212). The
Court denied the motion, and the operative complaint is the First Amended Complaint (the
“FAC”) at Docket Number 63. (Doc. 213). Secure may not expand its theory of the case beyond
what it pleaded in the FAC.
3
Secure incorrectly contends the Eleventh Circuit remanded Counts II, IV, V, and VI after
“realizing its error” in originally finding Secure had voluntarily dismissed its claim for
4
II.
LEGAL STANDARD
A court may only “grant summary judgment if 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.” FED. R. CIV. P. 56(A). The party moving for summary judgment
must “cit[e] to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations . . . , admissions, interrogatory answers, or other materials” to support
its position that it is entitled to summary judgment. FED. R. CIV. P. 56(C)(1)(A).
“The court need consider only the cited materials.” FED. R. CIV. P. 56(C)(3).4
“The burden then shifts to the non-moving party, who must go beyond the
pleadings, and present affirmative evidence to show that a genuine issue of
material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). “The court
need consider only the cited materials” when resolving a motion for summary
judgment. FED. R. CIV. P. 56(C)(3); see also HRCC, Ltd. v. Hard Rock Café Int’l
(USA), Inc., 703 F. App’x 814, 816–17 (11th Cir. 2017) (per curiam) (holding that a
fraudulent inducement” of the 2007 Contract. (Doc. 337, pp. 8–9). While the Eleventh Circuit
erred in making this finding, Siemens is correct that the error was immaterial because Secure
“waived any such claim in the 2010 Completion Agreement.” (Doc. 336, p. 10, n.7). Moreover,
Secure is incorrect that the Circuit Court vacated its earlier opinion because it was “replete
with misstatements of the record.” (Doc. 337, p. 8).
4
“The Court notes that it is not the responsibility of the court to search the record to determine
whether a motion for summary judgment should be granted or to find reasons why a properly
supported motion should be denied.” Kaazar Cap. Partners Ltd. v. Bactrac Techs., LLC, No.
17-CV-2721-AT, 2019 WL 2147578, at *8 n.12 (N.D. Ga. Mar. 14, 2019); see, e.g., Impreglon,
Inc. v. Newco Enters., Inc., 508 F. Supp. 2d 1222, 1241 n.16 (N.D. Ga. 2007) (“[I]t is not the
Court’s duty to comb the record in an attempt to find reasons to grant [a] Motion for Summary
Judgment.”); Tomasini v. Mount Sinai Med. Ctr. of Fla., Inc., 315 F. Supp. 2d 1252, 1260 n.11
(S.D. Fla. 2004).
5
district court does not err by limiting its review to the evidence cited by the parties
in their summary judgment briefs). 5
An issue of fact is “genuine” only if “a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In determining whether a genuine dispute of material fact exists, the Court
must read the evidence and draw all factual inferences therefrom in the light most
favorable to the non-moving party and must resolve any reasonable doubts in the
non-movant’s favor. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).
That said, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position
will not suffice; there must be enough of a showing that the jury could reasonably
find for that party.” Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 1162
(11th Cir. 2006) (quoting Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)).
Ultimately, summary judgment should only be granted “[w]here the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III.
DISCUSSION
A.
Count II: Breach of Warranty of Fitness for Particular
Purpose
The elements for breach of implied warranty of fitness for a particular
purpose are: (1) the seller, at the time of contracting, has reason to know the
5
“Unpublished opinions are not controlling authority and are persuasive only insofar as their
legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1345 (11th
Cir. 2007).
6
particular purpose for which the goods are required, (2) the seller has reason to
know that the buyer is relying on the seller’s skill and judgment to select suitable
goods for the specified purpose, and (3) the buyer did in fact rely on that skill or
judgment. Simmons v. Washing Equip. Techs., 51 A.D.3d 1390, 1391 (N.Y. App.
Div. 2008); FLA. STAT. § 672.315. That said, a written disclaimer of a warranty of
fitness for purpose precludes a party from relying on a representation that is
specifically disclaimed in the agreement. See Dallas Aero., Inc. v. CIS Air Corp.,
352 F.2d 775, 785 (2d Cir. 2003); see also, e.g., Maltz v. Union Carbide Chems. &
Plastics Co., 992 F. Supp. 286, 304 (S.D.N.Y. 1998) (explaining that implied
warranty of fitness for a particular purpose claims fail as a matter of law if the
purchase agreement specifically disclaims them).
Here, the parties agreed to a disclaimer of the implied warranty of fitness for
purpose in Section 7.12 of the 2012 Licensing Agreement:
THE WARRANTIES AND GUARANTEES PROVIDED
ARE IN LIEU OF ALL OTHER WARRANTIES AND
GUARANTEES, WHETHER STATUTORY, EXPRESSED
OR
IMPLIED,
INCLUDING
ALL
IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR PURPOSE, AND ALL WARRANTIES ARISING
FROM COURSE OF DEALING OR USAGE OF TRADE.
(Doc. 149–5, p. 68). As Siemens correctly notes, the same disclaimer is found in
the 2007 Contract and 2010 Licensing Agreement. (Doc. 149–3, p. 28; Doc. 149–
5, p. 34). Siemens argues the disclaimer precludes Secure from prevailing on a
breach of implied warranty claim. (Doc. 336, p. 12).
7
Secure does not contest that the disclaimer was adequately clear and
conspicuous. 6 Secure argues, however, that the 2012 License Agreement waiver
provision is unconscionable. (Doc. 337, p. 17). “To declare a contract clause
unconscionable, New York courts typically require ‘a showing that a contract is
both procedurally and substantively unconscionable when made.’” Catalano v.
MarineMax, 590 F.Supp.3d 487, 503 (E.D.N.Y. 2012) (citing Shema KolainuHear Our Voices v. ProviderSoft, LLC, 832 F.Supp.2d 194, 200 (E.D.N.Y. 2010)).
“[P]rocedural unconscionability considers whether there has been a lack of
meaningful choice to accept a challenged provision by evaluating a number of
factors, including ‘(1) the size and commercial setting of the transaction; (2)
whether there was a lack of meaningful choice by the party claiming
unconscionability; (3) the experience and education of the party claiming
unconscionability; and (4) whether there was disparity in bargaining power.’” Id.
“[S]ubstantive unconscionability involves an analysis ‘of the substance of the
bargain to determine whether the terms were unreasonably favorable to the party
against whom unconscionability is urged.’” Id. “Procedural and substantive
unconscionability have been described as operating on a ‘sliding scale,’ meaning
6
The New York Uniform Commercial Code “generally permits disclaimers of warranties that
are adequately clear and conspicuous.” Catalano v. MarineMax, 590 F.Supp.3d 487, 502
(E.D.N.Y. 2012). Conspicuous is defined “in a common-sense way: it means ‘so written,
displayed, or presented that a reasonable person against which it is to operate ought to have
noticed it.’” Id. (quoting N.Y. U.C.C. Law § 1-201(b)(10)).
8
that ‘the more questionable the meaningfulness of choice, the less imbalance in a
contract's terms should be tolerated and vice versa.’” Id. (citations omitted).
Siemens argues that Secure failed to plead unconscionability and is
restricted to the theories advanced in the FAC. (Doc. 336, p. 12). And Secure is
correct that the Court denied Siemens’s motion to dismiss as to Count II, because
New York law allows one to challenge a disclaimer as unconscionable. 7 (Doc. 337,
p. 17 (quoting Doc. 62, p. 5)). Siemens’s motion to dismiss, however, was directed
to the original complaint filed in the Southern District of Illinois. (Doc. 16). The
case was later — much later — transferred to the Middle District of Florida, and the
undersigned denied the motion to dismiss Count II of the original complaint.
(Docs. 33, 62). Thereafter, Secure filed the FAC, rendering the Court’s ruling as to
the original complaint moot. (Doc. 63). While Secure could have alleged
unconscionability to void the disclaimer of the implied warranty of fitness for a
particular purpose in the FAC, it did not do so. (Id. ¶¶ 29–34). Since Secure did not
“claim” unconscionability, it is precluded from pursuing that theory now. 8
Even if Secure had properly claimed unconscionability in the FAC, it failed
to cite any record evidence to support the theory of unconscionability. Secure’s
7
The Court was correct in stating that “[w]hen a party claims that a contract or a clause
contained therein is unconscionable, ‘the parties [sic] shall be afforded a reasonable
opportunity to present evidence as to its commercial setting, purpose and effect to aid the
court in making the determination.’” (Doc. 62, p. 6 (emphasis added) (citing N.Y.U.C.C. § 2302(2))). The Court was incorrect in that Secure failed to “claim” that the contract was
unconscionable. The Court should have granted Siemens’s motion to dismiss. Nonetheless,
the Court’s Order as to the original complaint has no bearing on the FAC.
8
Even Secure’s proposed Second Amended Complaint fails to allege unconscionability as a
theory to defeat the disclaimer contained in each contract. (Doc. 212-1, ¶¶ 33–34).
9
argument on unconscionability consists of the bald contention that “Siemens
preyed on Secure’s lack of bargaining power, essentially forcing them into a room
with no escape with the only option being to sign the 2012 LSA.” (Doc. 337, pp. 18–
19). Secure supports this conclusion by citing an affidavit written by Keith Clauss,
the CEO of SK Engineering and Construction, whose firm “worked with Secure” to
provide “a guaranteed maximum price contract for the engineering, procurement,
and construction (“EPC contract”).” (Doc. 221-2, ¶¶ 1–3). Mr. Clauss was not a
party to the contract, and his affidavit does not support Secure’s unconscionability
theory, nor does Secure articulate how Mr. Clauss advances their cause.
Siemens replies to Secure’s claim by pointing to record evidence that shows
Secure pressed for the 2010 and 2012 licensing agreements in an attempt to
“extend payment deadlines, restructure license terms, or change geographic
restrictions.” (Doc. 338, p. 2 (citing Doc. 149–22, RFA Nos. 8–15, 17–20; Doc. 149–
4, p. 73; Doc. 149–7, p. 63)). Siemens also argues that Secure had legal counsel and
a technical advisor and chose between other suppliers before signing the 2007
contract. (Doc. 338 (citing Doc. 149–22, RFA No. 14; Doc. 337, p. 5)).
As Siemens correctly observes in its reply, a trial on the issue of
unconscionability — where properly plead — “is necessary only ‘[w]here there is
doubt . . . as to whether a contract is fraught with elements of unconscionability.’”
(Doc. 338, p. 2). The Court finds that Secure failed to plead unconscionability in
the FAC, and even if it had preserved this theory of recovery, there is no genuine
issue of material fact relating to the applicability of the disclaimer and the lack of
10
unconscionability. 9 Siemens is therefore entitled to judgment in its favor as to
Count II.
B.
Count IV & Count V: Fraudulent Misrepresentation —
Failure to Disclose Defects & Rescission — Fraud
Secure brings two fraud claims through which it seeks damages and
rescission of the contract: Count IV and Count V. (Doc. 63, ¶¶ 42–79). Both causes
of action are based on the theory that Siemens knew the NCPP’s “identical gasifiers
. . . could not function without significant mandatory changes, and NCPP
substituted burners from a different manufacturer.” (Doc. 337, p. 13). That is,
Secure contends that Siemens had superior knowledge of the alleged material
defects, had a duty to disclose the design defect to Secure, and failed to do so. (Id.
at 13–14; Doc. 63, ¶¶ 42–79). Both claims assert that the gasifiers are defective and
are simply a restatement of Secure’s contract and breach of warranty claims. Still,
Secure contends the independent tort doctrine does not bar its fraudulent
inducement claims. (Doc. 337, pp. 15–17).
9
Secure claims it is entitled to $40,298,436.00 because the equipment and technology
purchased under the 2007 contract can no longer be incorporated into any gasification plant.
(Doc. 63, ¶ 34). Secure further claims an additional $46,000,000.00 because it was “forced”
to abandon the design and engineering of the West Paducah plant. (Id.). At any rate, the
parties terminated the 2007 Contract and 2010 Licensing Agreement, agreed that Siemens
had fulfilled its obligations under those contracts, and later entered new contracts. (Doc. 149–
22, p. 4, RFA Nos. 10-13). Secure never uncrated the gasification equipment sold by Siemens
and offers no evidence showing the equipment and technology could not satisfy its intended
purpose. Secure admitted that it lacked the necessary funding for any iteration of its project
before March 2010. (Id. at 3, RFA No. 9). Secure also admitted it lacked funding for any
iteration of the project before July 2012. (Id. at 6, RFA No. 20). And Secure admitted it “never
had the funding necessary for any iteration of their project.” (Id. at 7, RFA No. 22). Aside from
the conclusory allegations put forth by Secure’s counsel, Secure fails to demonstrate record
evidence of damages.
11
Florida’s independent tort doctrine provides that a party may not recover in
tort for a contract dispute unless the tort is independent of any breach of contract.
Island Travel & Tours, Ltd. v. MYR Indep., Inc., 300 So.3d 1236, 1239 (Fla. 3d
DCA 2020). Siemens correctly argues that unless the tort “allegations are separate
and distinct from defendants’ performance under the contract,” the independent
tort doctrine prevents recovery. (Doc. 336, p. 14). Glob. Quest, LLC v. Horizon
Yachts, Inc., 849 F.3d 1022, 1031 (11th Cir. 2017); see also Brooks v. Brooks
Consultants, Inc., 2022 U.S. Dist. LEXIS 202498, at *17 (M.D. Fla. Nov. 7, 2022)
(“When the ‘fraudulent inducement claims against [the defendant] arise out of
alleged contractual duties alone,’ the doctrine precludes those claims.’”). Here,
Secure’s fraud claims must arise from the contractual duties since the 2010
Completion Agreement released the parties of any claims that pre-date the
agreement.
In its breach of contract claim, Secure alleges the facts below regarding
Siemens knowledge and its alleged misrepresentations to induce Secure to enter
the 2012 License Agreement:
14.
On information and belief, based on the experience
of a plant in China that used identical gasifiers and
related gasification equipment and technology, Siemens
became aware of multiple material design defects in the
Siemens Equipment and Technology between October
31, 2010 and September 2011, including but not limited
to:
a.
The burners are improperly engineered and
designed;
12
b.
The design of the raw gas (syngas) outlet and
the black water outlet is defective because
the level of the black water will rise above the
raw syngas outlet and prevent syngas from
exiting the gasifier, greatly increasing the
risk of catastrophic explosion;
c.
The Basic Engineering Design Package
(BEDP) is defective and needs to be
modified to make changes to multiple
components, including, but not limited to,
the coal handling system, the slag handling
system, piping design, valve design, the
syngas cleaning system, and the black water
system; and
d.
Siemens’ design of the Fuel Measurement
System is defective and does not work.
19.
Based on its dealings with Siemens Energy and
Siemens’ representations concerning the Siemens
Equipment and Technology, Secure Energy and
MidAmerica C2L entered into contracts with third
parties concerning the design, engineering, construction
and operation of the above-mentioned plants, including
a supply agreement with Murray Energy, whereby
Murray Energy would supply coal from its New Era Mine
in Galatia, Illinois for use in the plant.
24. Plaintiffs did not become aware of the material
design defects in the Siemens Equipment and
Technology or the problems experienced in the Chinese
plant until March of 2016.
(Doc. 63, ¶¶ 14, 19, 24, 25) (emphasis added). The same material facts related to
the alleged product defects, which Secure claims were withheld by Siemens, are
alleged in Counts IV and V. (Id. ¶¶ 42–79). As the Eleventh Circuit correctly noted
in its now vacated opinion: “[b]efore the 2012 Completion Agreement and the 2012
LSA were signed, Siemens’s duty to share information with Secure and to deliver
13
conforming products, arose from the parties’ 2010 and 2007 agreements.” (Doc.
316, p. 36; Doc 146, n.3; Doc. 218, p. 5). Thus, Secure’s fraud claims, Counts IV and
V, are barred by the independent tort doctrine. 10 Correspondingly, Secure’s request
for rescission (Count V) also fails because Secure does not argue, much less
demonstrate, that legal remedies are inadequate. Sokolow v. Damico, 2019 U.S.
Dist. LEXIS 220849, at *14 (S.D. Fla. Dec. 26, 2019).
C.
Count VI: Rescission – Failure of Consideration
Secure contends that “[p]laintiffs have no adequate remedy at law for
rescission of the 2007 Contract and all subsequent contracts arising from Secure’s
course of dealing with Siemens.” (Doc. 337, p. 14). Secure relies on a case from New
York even though this Court previously found Florida law controls all non-contract
causes of action, a decision not challenged by Secure on appeal. (Id.). Nonetheless,
Florida law does not recognize the claim of rescission based on lack of
consideration. See Webb v. Kirkland, 899 So.2d 344, 346 (Fla. 2d DCA 2005)
(quoting Rennolds v. Rennolds, 312 So.2d 538, 541 (Fla. 2d DCA 1975)). That said,
where there is a failure of consideration, “an action for damages at law is usually
considered adequate.” Id. (quoting Royal v. Parado, 462 So.2d 849, 855 (Fla. 1st
DCA 1985). Here the 2007, 2010, and 2012 agreements provide for agreed legal
10
Siemens argues, again correctly, that Secure fails to plead fraudulent inducement in the FAC.
(Doc. 338, p. 3). Secure alleges in Count V that “Siemens’ failure to disclose the discovery and
existence of material design defects constitutes misrepresentations by silence and fraudulent
concealment.” (Doc. 63, ¶ 72). Count IV is a claim for fraudulent misrepresentation. (Id. ¶¶
42—59). And, as discussed above, the alleged misrepresentations related to the gasifiers form
the basis of Secure’s breach of contract claim.
14
remedies for defects and breaches. Finally, Siemens argues Count VI is barred
through the statute of limitations, whether one applies Florida or New York law.
(Doc. 338, p. 9). Siemens is correct and Count VI fails for that added reason.
IV.
CONCLUSION
For these reasons, Siemens Energy, Inc.’s Renewed Motion for Summary
Judgment (Doc. 336) is GRANTED. The Clerk is DIRECTED to enter judgment
for Defendant Siemens Energy, Inc., as to Counts II, IV, V, and VI of the First
Amended Complaint.
DONE AND ORDERED in Orlando, Florida on February 5, 2024.
Copies furnished to:
Counsel of Record
Unrepresented Parties
15
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