Kaltreider v. Simmons

Filing 106

REPORT AND RECOMMENDATION: The Court respectfully RECOMMENDS that the Defendants motion for summary judgment (Docket Entry No. 54) be DENIED and that this action be set for a trial by jury. Signed by Magistrate Judge Juliet E. Griffin on 2/6/2014. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

KURT KALTREIDER, Ph.D.
v.
S. GUERRY SIMMONS

TO:

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NO. 3:12-0450

Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION
By Order entered May 15, 2012 (Docket Entry No. 3), this action was referred to the
Magistrate Judge to enter a scheduling order for the management of the case, to dispose or
recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to
conduct further proceedings, if necessary, under Rule 72(b) of the Federal Rules of Civil Procedure
and the Local Rules of Court.
Presently pending before the Court is the motion for summary judgment filed by Defendant
S. Guerry Simmons (Docket Entry No. 54), to which the Plaintiff has responded in opposition. See
Docket Entry Nos. 98-99. Also before the Court is the Defendant’s reply. See Docket Entry
No. 102.1 Set out below is the Court’s recommendation for disposition of the motion.
1

By Order entered October 22, 2013 (Docket Entry No. 87), the Court found that the
Plaintiff’s original response (Docket Entry Nos. 75-76) to the motion for summary judgment was
timely filed but was procedurally deficient and provided him with time to file a new response. The
Court granted the Defendant leave to file a reply to the Plaintiff’s new response but directed that no
sur-reply from the Plaintiff was permitted. Nonetheless, the Plaintiff filed a sur-reply (Docket Entry
No. 103), which the Defendant has moved to strike. See Docket Entry No. 104. By
contemporaneous Order, the Court has granted the motion to strike. Accordingly, the Court has not
considered the Plaintiff’s sur-reply.

I. BACKGROUND2
The Plaintiff is currently a resident of Maryland. He holds advanced degrees in philosophy
and clinical psychology and has a particular interest in the study of Formal Axiology, which he
describes as the “mathematics of value.” See Amended Complaint (Docket Entry No. 17), at ¶ 6.
During the 1970's and early 1980's, the Plaintiff researched the application of Formal Axiology to
the behavior of the stock market and developed mathematical formulas and derivatives (“the
Formulas”) for predicting the behavior of publically traded stocks. During the 1980's, the Plaintiff
refined the Formulas while working for investment management companies.
Sometime in 1988 or 1989, the Plaintiff first met the Defendant, who was also employed by
an investment management company, and the two men developed a professional relationship based
on their mutual interest in the field of investment management. The Plaintiff, believing in the merit
of the Formulas, shared with the Defendant some information about the Formulas and the Plaintiff’s
methodology for making investment decisions, although the amount and nature of the information
shared by the Plaintiff is disputed. Both men continued to work in the investment management field
and maintained their professional relationship. At some point during 1994, they entered into a
working arrangement that is at the center of this lawsuit and the exact nature of which is hotly
contested by the parties. Unfortunately for all involved, the arrangement was not memorialized in
writing.
The Plaintiff alleges that he and the Defendant entered into an oral agreement for the mutual
benefit of both men whereby the Defendant was given permission to use the Formulas, the Plaintiff’s
2

The factual statements set out in Section I are summarized from the parties’ pleadings and
summary judgment filings and are not intended as ultimate findings of fact made by the Court but
merely as a summary of relevant background facts.
2

research, and the Plaintiff’s investment methodologies in order to develop and manage investment
portfolios and attract clients and, in return, would make payments to the Plaintiff of a portion of the
income derived from the Defendant’s investment management endeavors. Although the Plaintiff
would continue to engage in research, refinement, and advice regarding the Formulas, he would not
engage in active participation in any portfolio management.
In contrast, the Defendant denies that an oral agreement of any kind was made and asserts
that, prior to 1994, he was already using the Formulas in his management of investment portfolios.
He asserts that he believed it would be useful to retain the Plaintiff as a consultant because he
anticipated that the Plaintiff would develop new and improved investment techniques and
methodologies and that he thus made payments to the Plaintiff as consulting fees, not pursuant to
any agreement or contract. Although the Defendant admits to using the Formulas in his management
of investment portfolios for some period of years, he contends that the Formulas became ineffective
and he eventually ceased using the Formulas, instead relying upon new portfolio selection processes
and methodologies that he developed independently of the Formulas and of the Plaintiff.
Although the nature and scope of the arrangement between the Plaintiff and Defendant is
disputed, it is undisputed that the Plaintiff received regular payments from the Defendant for
approximately 14 years. The Plaintiff was initially paid directly from the Defendant until some point
in the late 1990's or early 2000's when the Defendant became employed at Weaver C. Barksdale &
Associates (“Barksdale & Associates”), an investment management firm, after which time the
Plaintiff began to receive payments from the Defendant via Barksdale & Associates.3 The payments
from Barksdale & Associates were listed as non-employee compensation on IRS 1099-MISC forms
3

The Defendant is no longer employed by Barksdale & Associates.
3

the Plaintiff received from Barksdale & Associates. The payments continued until March 2008, and
the Plaintiff alleges that he had received at total of $662,000.00 in payments from the Defendant up
to that date.
The March 2008 payment was the last payment made to the Plaintiff, and, on April 30, 2008,
the Defendant filed an action for declaratory judgment against the Plaintiff in this Court. See
Simmons v. Kaltreider, No. 3:08-0444. In that action, the Defendant asserted that he no longer
utilized the Formulas, that he relied on formulas and methodologies that he had developed, that the
Plaintiff was providing nothing of value to him, and that he had no further need for consultation with
the Plaintiff. The Defendant sought an order declaring that he did not owe any duty or obligations
to the Plaintiff. However, by Order entered January 27, 2009, the Defendant’s motion to voluntarily
dismiss his declaratory judgment action was granted and the action was dismissed without prejudice
and without any resolution of the dispute between the parties.
Whether the Plaintiff and the Defendant interacted over the next three years is unclear, but
on May 3, 2012, the Plaintiff filed the instant action pro se and in forma pauperis against the
Defendant, who is a resident of Tennessee, asserting diversity jurisdiction under 28 U.S.C. § 1332.
The Plaintiff alleges that he and the Defendant had entered into an oral “joint venture agreement”
in 1994 for the use and development of the Formulas and for a division of profits derived from the
use of the Formulas as applied to clients’ investments in publically traded stocks. See Amended
Complaint (Docket Entry No. 17), at ¶ 9. The Plaintiff alleges that the terms of this agreement were
as follows:
(1)

Simmons would use the Formulas and Kaltreider’s investment selection
procedures in recommending investments to Simmons’ clients;

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(2)

Simmons would use Kaltreider as a reference for the validity of the Formulas
and investment procedures, including Kaltreider’s twenty-three year track
record in the investment world;

(3)

Simmons would have access to all of Kaltreider’s past records, investment
selection procedures, and whatever other information was necessary to
implement the Formulas for the investments in question;

(4)

Kaltreider would be available to do research, while Simmons would serve as
the salesman for the joint venture, set up the computer systems needed for the
business, and run the business on a day-to-day basis;

(5)

Kaltreider would continue to work and do research for his investment client,
First Wisconsin. The revenues from First Wisconsin would go to Kaltreider,
and not to the joint venture;

(6)

Simmons would receive 90% and Kaltreider would receive 10% of the first
$50,000.00 of the gross receipts for the joint venture each year. Simmons
would receive 75% and Kaltreider would receive 25% of the annual gross
receipts above $50,000.00;

(7)

the same division of annual gross receipts would be applied to any and all
monies generated by either Kaltreider or Simmons for asset management or
sales research, excluding the Plaintiff’s income from First Wisconsin; and

(8)

Simmons was free to improve upon anything that Kaltreider had done with
the Formulas in their implementation with investments. However, Simmons
and Kaltreider agreed that Simmons would not make changes to the Formulas
or the implementation procedures without at least five (5) years of backtesting, and then only in the event that the changes added significant value to
investments.

Id. at 3-4, ¶ 9.
The Plaintiff contends that the Defendant breached the oral agreement by 1) making changes
to the Formulas and implementation procedures without five (5) years of back-testing, 2) altering
the Formulas and implementation procedures without the Plaintiff’s approval or involvement, and
3) ceasing payments to the Plaintiff as of June 30, 2008. Id. at ¶ 12. As monetary relief, the Plaintiff
seeks all sums which have not been paid under the agreement from 1995 through March 2008, and
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all sums due under the agreement from April 1, 2008, to date. Id. at ¶ 13. The Plaintiff also seeks
a full accounting of all income received by the Defendant for his services as an investment counselor
since 1994, an accounting of income information from Barksdale & Associates, and the production
of computer or data discs containing all formulas and procedures utilized by the Defendants from
1994 to date. Id. at ¶ 12.

II. MOTION FOR SUMMARY JUDGMENT
The Defendant argues that he is entitled to summary judgment as a matter of law because the
undisputed facts show that the parties never entered into an oral contract. Specifically, the Defendant
contends that the Plaintiff cannot show that there was a meeting of the minds between the parties
about clearly defined and mutually agreed upon terms of a contract. Alternatively, the Defendant
argues that, even if a contract did exist, the Defendant did not breach such a contract and
unequivocally terminated the contract in April of 2008 when he filed the declaratory judgment
action. The Defendant argues that the Plaintiff has admitted that as of April of 2008, he had been
paid in full for the formulas he allegedly allowed the Defendant to use. Additionally, the Defendant
contends that the Plaintiff is not entitled to any compensation from the Defendant under any other
theory because Plaintiff has not provided anything of value to the Defendant since, at the latest,
2007, and that the Plaintiff’s request for an accounting lacks merit. In support of his motion, the
Defendant relies upon his own declaration (Docket Entry No. 56), excerpts from the Plaintiff’s
deposition (Docket Entry No. 57-1), and the Plaintiff’s discovery responses (Docket Entry Nos. 57-2
and 57-3).

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The Plaintiff responds by contending that both facts and common sense show that an oral
contract existed as evidenced, in part, by the substantial sums of money that were regularly paid to
the Plaintiff by the Defendant. The Plaintiff further disputes many of the factual assertions made by
the Defendant and asserts that there is evidence supporting his claim of breach of contract. In
support of his response, the Plaintiff relies upon his on declaration (Docket Entry No. 76) and upon
an array of various documents. See Docket Entry Nos. 98-1 through 98-17.
In reply, the Defendant asserts that the Plaintiff has failed to rebut the Defendant’s arguments
that no enforceable contract exists and that the Plaintiff is not entitled to relief under any theory. See
Docket Entry No. 102. The Defendant essentially argues that the evidence offered by the Plaintiff
is not sufficient to support his claims or to even raise genuine issues of material fact.

III. STANDARD OF REVIEW
A motion for summary judgment is reviewed under the standard that summary judgment is
appropriate 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.” Rule 56(a) of the Federal Rules of Civil
Procedure. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). A “genuine issue of material fact” is a fact which, if proven at trial, could lead a reasonable
jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering whether summary judgment is
appropriate, the Court must “look beyond the pleadings and assess the proof to determine whether
there is a genuine need for trial.” Sowards v. Loudon Cnty., 203 F.3d 426, 431 (6th Cir.), cert.
denied, 531 U.S. 875, 121 S.Ct. 179, 148 L.Ed.2d 123 (2000). In reviewing a motion for summary
7

judgment, the Court must view the evidence and all inferences drawn from underlying facts “in the
light most favorable to the party opposing the motion.” See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., Ltd., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gribcheck v. Runyon,
245 F.3d 547, 550 (6th Cir.), cert. denied, 534 U.S. 896, 122 S.Ct. 217, 151 L.Ed.2d 155 (2001).
The moving party has the burden of showing the absence of genuine factual disputes from
which a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at
249-50. However, “[t]he moving party need not support its motion with evidence disproving the
non-moving party’s claim, but need only show that ‘there is an absence of evidence to support the
non-moving party’s case.’” Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001)
(quoting Celotex Corp., 477 U.S. at 325).
“Once the moving party has presented evidence sufficient to support a motion for summary
judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant
probative evidence must be presented to support the complaint.” Goins v. Clorox Co., 926 F.2d 559,
561 (6th Cir. 1991). The party opposing the motion for summary judgment may not rely solely on
the pleadings but must present evidence supporting the claims asserted by the party. Banks v. Wolfe
Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003). Moreover, conclusory allegations,
speculation, and unsubstantiated assertions are not evidence, and are not sufficient to defeat a
well-supported motion for summary judgment. See Lujan v. National Wildlife Fed’n, 497 U.S. 871,
888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). In other words, to defeat summary judgment, the
party opposing the motion must present affirmative evidence to support his or her position; a mere
“scintilla of evidence” is insufficient. Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003)
(quoting Anderson, 477 U.S. at 252).
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IV. ANALYSIS
A federal court sitting in a diversity case generally applies the law of the forum state. Carbon
Processing & Reclamation, LLC v. Valero Mktg. & Supply Co., 823 F. Supp. 2d 786, 801 (W.D.
Tenn. 2011). Neither party has argued that Tennessee law does not apply. Accordingly, the Court
shall apply Tennessee law to the dispute.
With respect to the existence of an enforceable contract, the Defendant argues that the
Plaintiff cannot set forth evidence showing that the Plaintiff and the Defendant mutually assented
to the terms of the alleged oral contract as the Plaintiff sets out in the Amended Compliant. The
Defendant contends that the parties’ differing versions of the parties’ expectations of the
arrangement between them evidences a lack of mutual assent to clearly defined terms which requires
summary judgment in the Defendant’s favor on this issue. See Defendant’s Memorandum (Docket
Entry No. 55), at 6-8. The Defendant also points to evidence of actions by both the Plaintiff and the
Defendant that the Defendant contends are inconsistent with mutual assent to the terms of the
purported contract. Id. at 6-7.
The Court is not persuaded by the Defendant’s argument. Unless required by law, contracts
need not be in writing in order to be enforceable. Bill Walker & Assoc., Inc. v. Parrish, 770 S.W.2d
764, 771 (Tenn.Ct.App. 1989). The Defendant correctly maintains that the party seeking to enforce
an oral contract must prove (1) the parties’ mutual assent to the contract's terms and (2) that the
terms are sufficiently definite to be enforceable. Castelli v. Lien, 910 S.W.2d 420, 426-27
(Tenn.Ct.App. 1995). However, the facts before the Court are not so one sided on the issues of
mutual assent and the presence of clearly defined contract terms that the only reasonable
interpretation of the facts is one that favors the Defendant. Although the Plaintiff’s pro se
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presentation of his case is somewhat difficult to follow at times, the Plaintiff has presented to the
Court sufficient evidence to create genuine issues of material fact on the issue of the existence of a
contract that cannot be resolved in the context of summary judgment. The Plaintiff’s declaration and
discovery responses sufficiently support his version of what the Plaintiff and the Defendant agreed
to in 1994, and create genuine issues of material fact when contrasted to the Defendant’s declaration.
See Docket Entry No. 76, at ¶¶ 6, 9, 11, and 12-13; and Docket Entry No. 57-3, at ¶ 5. To the extent
that the Defendant relies on Castelli for the proposition that a Plaintiff cannot, as a matter of law,
prove “clearly defined, mutually agreed upon terms” in a situation in which a plaintiff and a
defendant present different versions of events surrounding a purported contract, the Court notes that
the Castelli opinion was made in the context of an appeal from a judgment after a full trial, not in
the context of whether summary judgment was appropriate. See also Davidson v. Holtzman, 47
S.W.3d 445, 454 (Tenn.Ct.App. 2000) (“ the only evidence . . . regarding the parties' agreement was
the testimony of the parties and their correspondence after the agreement was allegedly made.
Because the parties' testimony was sharply conflicting, the jury was required to assess the credibility
of the witnesses.”)
Additionally, “destruction of contracts because of uncertainty has never been favored by the
law,” see Gurley v. King, 183 S.W.3d 30, 34 (Tenn.Ct.App. 2005), and mutual assent to contract
terms can be established by evidence of a course of dealings between the parties or by other evidence
of conduct or circumstances indicating that a party has performed pursuant to the terms of a
purported contract. Jones v. LeMoyne-Owen College, 308 S.W.3d 894, 905-06 (Tenn.Ct.App.
2009); Burton v. Warren Farmers Coop., 129 S.W.3d 513, 521 (Tenn.Ct.App. 2002); T.R. Mills
Contractors, Inc. v. WRH Enterprises, LLC., 93 S.W.3d 861, 865-66 (Tenn.Ct.App. 2002). See also
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Betterton Management Serv. v. Whittemore, 769 S.W.2d 214, 216 (Tenn.Ct.App. 1989) (defendant
was estopped from denying assent and a meeting of the minds where the parties performed under the
alleged agreement for an extended period of time and the defendant made payments to the plaintiff
in accordance with the terms of the alleged agreement). Reasonable minds could differ about
whether the lengthy period of regular payments from the Defendant to the Plaintiff occurred because,
as the Defendant contends, he was paying consulting fees to the Plaintiff as the Defendant deemed
appropriate or because the Defendant had agreed to the payment terms of the purported contract.
Similarly, the Court is not persuaded that a conclusion that mutual assent was lacking is the only
reasonable interpretation of what the Defendant contends is evidence that the parties did not follow
the terms of the alleged contract. Such evidence could be reasonably viewed as evidence of noncompliance with the terms of the purported contract instead of a lack of mutual assent. In a situation
in which reasonable minds can differ about the interpretation of evidence relating to the formation
of a contract and in which witness credibility is an issue, summary judgment should not be granted
on the question of whether a contract existed. Gurley, 183 S.W.3d at 42; Davidson supra.
Even if a contract existed, the Defendant argues that the Plaintiff is unable to offer proof
supporting his claim that the Defendant breached the contract. The Defendant asserts that the
Plaintiff has specifically testified that he is not seeking any damages for amounts that could have
been owed to him prior to April of 2008 and has admitted that he accepted all payments from the
Defendant until April 2008 as payment in full without any reservation of rights. The Defendant
further contends that he unequivocally terminated any contract that existed when he filed his
declaratory judgment suit in April 2008. Thus, the Defendant argues that the Plaintiff cannot assert

11

a claim for breach of contract based on any action taken from April 2008 to the present. See Docket
Entry No. 55, at 8.
The Court is also not persuaded by the Defendant’s argument that summary judgment is
appropriate on the issue of a contractual breach. The Defendant’s argument is based entirely upon
his contention that he terminated the contract, presuming it existed, when he sought a declaratory
judgment in April 2008. See Docket Entry No. 55, at 8. In that action, the Defendant asserted that
he no longer relied upon the Formulas and had no continuing obligation to make any payments to
the Plaintiff. However, the declaratory judgment action was dismissed without prejudice upon
motion of the Defendant.4 The Defendant had a full opportunity to resolve those issue at the time
of his declaratory judgment action but chose not to pursue the action to a resolution. Accordingly,
the Defendant cannot now contend that the filing of the declaratory judgment action is conclusive
evidence that the purported contract between the Plaintiff and Defendants was terminated as of April
2008, or that the allegations he makes in his defense of the instant action, which are essentially the
same as those he made in 2008, are factually correct. In his supporting memorandum, the Defendant
has offered no legal support for that argument.
Although Tennessee law holds that, in the absence of a specific termination provision, a
contract for an indefinite duration is generally terminable at will by either party upon reasonable
notice, McReynolds v. Cherokee Ins. Co., 896 S.W.2d 777, 779-80 (Tenn.Ct.App. 1994), the nature
of the contract at issue may be such that the contract, although indefinite in term, is intended by the

4

Like most other issues in the instant lawsuit, the parties even disagree about the reasons
behind the Defendant’s dismissal of the declaratory judgment action. Compare Simmons
Declaration (Docket Entry No. 56), at ¶ 28, with Plaintiff’s Response (Docket Entry No. 98), at 1314; and Declaration of Christopher Thorsen (Docket Entry No. 73-4), at ¶ 4.
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parties to continue as long as certain obligations under the contract continue. See Johnson v. Welch,
2004 WL 239756, **9-16 (Tenn.Ct.App. Feb. 9, 2004).

Furthermore, a party’s unilateral

termination of a contract does not relieve the party from liability for damages caused by his
termination or foreclose the other party from seeking a claim based upon breach of the contract. See
McClain v. Kimbrough Const. Co., Inc., 806 S.W.2d 194, 199 (Tenn.Ct.App. 1990); Johnson, supra.
The factual issues surrounding whether the purported contract between the Plaintiff and the
Defendant was breached by the Defendant or was lawfully terminated at some point after March
2008, because the Defendant no longer used the Formulas and, thus, the activity upon which the
continuing obligation to pay had stopped, are simply unresolved and contested issues. The Plaintiff’s
declaration and discovery responses are sufficient to support his position that the Defendant was still
using the formulas and thus, continuing payments were due to the Plaintiff after March 2008. See
Docket Entry No. 76, at ¶¶21 and 24; and Docket Entry No. 57-3, at ¶ 13.5 As the non-moving party,
the Plaintiff is entitled to have the facts and all inferences to be drawn therefrom viewed in the light
most favorable to him. Matsushita Elec. Indus. Co., supra. Based on the record before the Court,
the Court cannot say that the facts are so one-sided that they favor the Defendant and require
summary judgment on the Plaintiff’s breach of contract claim. Accordingly, summary judgment in
favor of the Defendant is not warranted on this issue.

5

Although the Defendant refers to the Plaintiff’s declaration statement as a “made-up
allegation,” see Docket Entry No. 102, at 6, the Defendant’s mere belief that the statement is untrue,
no matter how vigorously asserted by the Defendant, does not render the Plaintiff’s statements any
less a measure of supporting evidence than the statements made by the Defendant. Weighing the
credibility of the parties is not appropriate in the context of considering a motion for summary
judgment.
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Although summary judgment in favor of the Defendant is not warranted on the issue of
whether a breach of contract has occurred, it is apparent that the Plaintiff has presented differing
statements of the period for which he is seeking damages in this action. Although in the Amended
Complaint the Plaintiff requests relief going back to 1995, see Docket Entry No. 17, at ¶13, the
Defendant points to statements made by the Plaintiff at his deposition indicating that he is not
seeking relief for amounts that could have been owed prior to March 2008. See Plaintiff’s
Deposition (Docket Entry No. 57-1), at 12-13. The Defendant further provides written discovery
responses from the Plaintiff which the Defendant maintains are additional support for the contention
that the Plaintiff is not seeking damages for any amounts that may have been owed prior to March
2008. See Plaintiff’s Response to Requests for Admissions (Docket Entry No. 57-2), at ¶ 4;
Plaintiff’s Response to Interrogatories (Docket Entry No. 57-3), at ¶ 6. In response, the Plaintiff
asserts that the documents he received in discovery lead him to believe that he has been defrauded
by the Defendant and “he now rescinds his statement that he was paid in full through March 2008
as he was unknowingly deceived by the Defendant . . . [but] If the statements cannot be rescinded,
then the Plaintiff can live with that.” See Docket Entry No. 98, at 10-11. Nonetheless, the Plaintiff
specifically sets out in his Response that he is seeking damages from 2007 forward. See Docket
Entry No. 98, at 23. He further admits in his Response to the Defendant’s Statement of Undisputed
Material Facts that he is not seeking any damages in this suit for amounts that could have been owed
to Plaintiff prior to April of 2008. See Docket Entry No. 99, at ¶ 18.
A party cannot create genuine issues of material fact by making statements subsequent to his
deposition that contradict his own prior deposition testimony. See Reid v. Sears, Roebuck and Co.,
790 F.2d 453, 460 (6th Cir. 1986). Additionally, when a party’s deposition testimony contradicts
14

the content of his own complaint, the Court should rely on the later testimony of the plaintiff. See
Leary v. Livingston Cnty., 528 F.3d 438, 444 (6th Cir. 2008). The Plaintiff should be bound by his
deposition statement and by his subsequent filings affirming his intent to seek monetary damages
only for payments that may have been due under the purported contract subsequent to the final
payment made by the Defendant in March 2008. Accordingly, any monetary damages in this action
for breach of contract should be limited to the time period of April 2008, to the present.
The Defendant devotes part of its motion for summary judgment to arguing that the Plaintiff
is not entitled to relief under any cause of action other than breach of contract and an accounting and
seeks dismissal of any other potential claims that could have been pled. The Court agrees with the
Defendant that the Plaintiff’s Amended Complaint specifically sets out only a claim for breach of
contract and a request for an accounting. Any other possible claims that may arise from the facts of
this action have not been pled by the Plaintiff and are not a part of this action. The Court is not
required to “create [Plaintiff]’s claims for him” by reading the Plaintiff’s Amended Complaint to
include all potential claims. See Bell v. Tennessee, 2012 WL 996560, *9 (E.D. Tenn. Mar. 22, 2012)
(quoting Thompson v. A.J. Rose Mfg. Co., 208 F.3d 215 (6th Cir. 2000)). Although the Defendant
requests a dismissal of “all cause of action related to Plaintiff’s meritless allegations,” see Docket
Entry No. 55, at 9, n.2, the Court shall not analyze or review claims the Plaintiff has not pled.
As to the Plaintiff’s request for an accounting, the Defendant argues that the Plaintiff’s
inability to establish his contract claim against the Defendant requires dismissal of the request for
an accounting. Because the Court finds that genuine issues of material fact exist on the Plaintiff’s
breach of contract claim that require resolution by the trier of fact, the Defendant’s request for

15

dismissal of the accounting claim, which is essentially a claim for extraordinary equitable relief,
necessarily lacks merit.

RECOMMENDATION
For the reasons set out above, the Court respectfully RECOMMENDS that the Defendant’s
motion for summary judgment (Docket Entry No. 54) be DENIED and that this action be set for a
trial by jury.
Although summary judgment in favor of the Defendant should be denied, as set out herein,
the Plaintiff’s claims for monetary damages in this action should be limited to the time period of
April 2008, to the present.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of the Report and Recommendation upon the party and
must state with particularity the specific portions of this Report and Recommendation to which
objection is made. Failure to file written objections within the specified time can be deemed a
waiver of the right to appeal the District Court's Order regarding the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).

Respectfully submitted,

JULIET GRIFFIN
United States Magistrate Judge

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