In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1051
N ATIONAL INSPECTION & R EPAIRS, INC.,
Plaintiff-Appellant,
v.
G EORGE S. M AY INTERNATIONAL C O .,1
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 5529—Blanche M. Manning, Judge.
A RGUED S EPTEMBER 25, 2009—D ECIDED A PRIL 9, 2010
1
Defendant William Doane did not participate in this appeal.
He was dismissed without prejudice by the district court,
“unless NIR [won] its appeal against May.” However, we hold
in this case that Doane is dismissed with prejudice pursuant to
the joint motion of the parties filed after oral argument
where NIR states that it will not re-file its claims against
William Doane and wishes that those claims be treated as
dismissed with prejudice. See infra Part II.A.
2 No. 09-1051
Before E ASTERBROOK, Chief Judge, and K ANNE and
S YKES, Circuit Judges.
K ANNE, Circuit Judge. The central issue in this case is
breach of contract. The plaintiff-appellant, National
Inspection & Repairs, Inc. (“NIR”), is appealing the
district court’s decision to grant summary judgment
to the defendant-appellee, rejecting NIR’s claims for
breach of contract, fraudulent misrepresentation, negligent
misrepresentation, breach of fiduciary duty, and construc-
tive fraud. A breach of contract claim is a double-edged
sword to be advanced by a party at its own risk. Such
a claim necessarily calls into question not only whether
a breach occurred, but also, which party committed it.
Because we find that it was NIR alone that breached
the contract, we agree that summary judgment was
appropriate.
I. B ACKGROUND
NIR is a heavy equipment and machinery inspection
company based in Topeka, Kansas; NIR defines itself as
a “trucking company” in its brief. An employee of NIR
inadvertently rendered the company’s accounting system,
Quickbooks, inoperable, causing NIR to seek outside
assistance to develop new systems for accounting and
inventory controls. To that end, NIR’s President, David
Price, contacted George S. May International Company
(“May”), a business consulting services company head-
quartered in Park Ridge, Illinois.
At Price’s request, and in accordance with May’s stan-
dard sales methodology, May provided NIR with a
No. 09-1051 3
Survey Analyst to perform an initial assessment of the
business and to recommend potential service engage-
ments. After Price reviewed and analyzed the assess-
ment and recommendations, NIR and May executed a
consulting services contract (the “agreement”) on May 4,
1999. The agreement is formally referred to as “Authoriza-
tion for Management Service and Method Payment.”
The agreement provides that May will, “by discussions,
recommendations and progress reports, keep the client
informed as to its progress.” (App. at 204.) It further
provides:
In order that there may be a continual meeting of
the minds between the client and [May] and,
particularly, in order that the continuation of
[May’s] services is at all times within the client’s
control, acceptance or rejection of all, or any part,
of matters covered in discussions, recommenda-
tions and progress reports shall be by client’s
signature to Progress Reports of [May] under
“Examined, Accepted and Approved,” specifically
excluding by designation any statement not ap-
proved.
(Id.)
The agreement also contains a restrictive covenant prohib-
iting NIR from hiring any of May’s employees for one
year from the date the agreement was executed. The
4 No. 09-1051
Project Director 2 expressly reviewed this provision
with Price.
Additionally, the agreement provides that all Staff
Members are under contract with May and are bonded
to $500,000 for protection of clients.
After they executed the agreement, May’s Project Direc-
tor collaborated with NIR to provide a comprehensive
list of mutually conceived and agreed-on programs. Two
of the principal programs that Price agreed to were Mana-
gerial Control Accounting (“MCAP”) and Profit and
Expense Control (“PECP”). These two programs included
forty-two sub-projects. Two of the sub-projects under
MCAP are at issue in this litigation. Specifically, the goal
of Project 2.3 required May to “identify critical process
points and establish mechanisms for control over
accuracy of the process,” the primary objective of which
was “to ensure accuracy of record keeping systems and to
eliminate the possibility of fraud.” (Id. at 236.) Project 2.8
provided that May would “[a]ssist in interviewing candi-
dates for the position of NIR Controller.” (Id.)
Also at issue are the actions taken by William Doane, a
Staff Executive assigned to manage and implement the
NIR project. Doane was the only May employee at NIR
for 21 days of the 25-day consulting engagement, and this
case turns primarily on factual issues regarding his role
2
The Project Director was Vladimir Tigay. The role of the
Project Director was to establish the framework for the
project, assign the project Staff Executives, and oversee the
Staff Executives. The Staff Executives were the on-site points
of contact for day-to-day communications with the client.
No. 09-1051 5
and performance. In addition to other duties, Doane
interviewed a number of candidates for the position of
Controller pursuant to the provisions of Project 2.8.
Although NIR disputes that Doane legitimately con-
ducted these interviews, there is considerable evidence
to support the contention that he did. Such evidence
includes (1) Price’s deposition stating that Doane was
interviewing people and that the candidates’ names
were recorded in the personnel records (Id. at 66);
(2) Price’s deposition stating that Doane interviewed “nine
or ten people” for the position of Controller (Id. at 68);
(3) Doane’s deposition stating that Price and another NIR
employee attended some of the interviews (Id. at 326-27);
and (4) a list of completed items in the final Progress
Report, “examined, accepted, and approved” by Price,
which included a line-item for project 2.8 noting inter-
views for the Controller position were completed on
May 18, 19 and 24 (Id. at 281-82). Over the three-week
engagement, May submitted five Progress Reports to NIR.
Each report contained a list of all the defined projects, with
status updates for each. Price “examined, accepted, and
approved” every report. Upon the completion of the
engagement, Price authored a letter to May in which
he stated:
I am satisfied with the work. My employees are
trained in concepts established by your con-
sultants and they are beginning to implement
them. I believe that the various recommendations
presented regarding savings for my company
are realistic and several have been instituted.
(Id. at 283.)
6 No. 09-1051
Simultaneous with the termination of the engagement
with May and in contravention of the agreement, Price
hired Doane for the Controller position. (Id. at 231, 286,
287.) Price testified that Doane, in Price’s presence but
unbeknownst to Price at that time, conducted a fictitious
one-way phone call, supposedly with high-level decision
makers at May. Doane allegedly told Price during this
telephone conversation that May officials orally released
NIR from its contractual agreement not to hire May
employees. Price never spoke directly with anyone at
May other than Doane, and Price did not otherwise
make any attempts to verify such a release. Further, Doane
never told May that Price had hired him to work at NIR.
When May eventually learned of Doane’s resignation, it
issued a termination letter dated July 21, 1999. The letter
stated that Doane’s employment was “considered termi-
nated effective on [Doane’s] last working date June 10,
1999.” (Id. at 29.)
After the consulting engagement ended and while
Doane was employed by NIR as NIR’s Controller, NIR
alleges that Doane stole money from the company. NIR
asserts that Doane somehow laid the foundation while
working for May to perpetrate his purported crimes at
NIR. Because of Doane’s actions, NIR claims to have lost
hundreds of thousands of dollars; however, the district
court noted that NIR did not specify how much was
stolen and did not provide any credible evidence of
its claim.
NIR asserts, among other claims, that May breached the
contract by failing to “implement” its duties under the
No. 09-1051 7
agreement, and for negligently hiring and supervising
Doane. In other words, the crux of NIR’s argument is
that May was required to take steps to ensure that
Doane would be a suitable employee for NIR, even
though NIR promised not to hire him.
May argues that it did not violate any provision of the
agreement and is entitled to the district court’s award of
summary judgment in its favor.3 We will address these
arguments in turn.
II. A NALYSIS
NIR argues on appeal that the district court erred in
granting summary judgment for May. We review the
grant of summary judgment de novo. Trade Fin. Partners,
LLC, v. AAR Corp., 573 F.3d 401, 406 (7th Cir. 2009). We
draw all inferences in the light most favorable to NIR, the
nonmoving party. Lucero v. Nettle Creek Sch. Corp., 566 F.3d
720, 728 (7th Cir. 2009). We will affirm only if we find
that there is no genuine issue as to any material fact and
May is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Trade Fin. Partners, 573 F.3d at 406. However,
NIR must present something more than a mere scintilla
3
May filed a counterclaim alleging that NIR breached the
contract when it hired Doane. The district court granted May’s
motion for summary judgment on the counterclaim and noted
the parties needed to set a hearing date for the prove-up of
damages on the counterclaim. The counterclaim is not at
issue on this appeal.
8 No. 09-1051
of evidence, see Delta Consulting Group, Inc., v. R. Randle
Constr., Inc., 554 F.3d 1133, 1137 (7th Cir. 2009), or “some
metaphysical doubt as to the material facts” to survive
summary judgment, Springer v. Durflinger, 518 F.3d 479,
484 (7th Cir. 2008) (quoting Waukesha Foundry, Inc. v. Indus.
Eng’g, Inc., 91 F.3d 1002, 1007 (7th Cir. 1996)). Although
NIR raises a number of issues on appeal, the success
or failure of these arguments ultimately hinges on which
party breached the contract.
Initially, we address NIR’s assertion that the district
court misstated the standard of review for summary
judgment, thereby leading to an outcome that would
otherwise have been in NIR’s favor. In doing so, we take
notice of the fact that NIR took a portion of a quotation
used by the district court out of context, and did not
include the second half of the district court’s sentence.
This omission could have misled this court with respect
to the summary judgment standard applied by the
district court.
NIR referenced the district court’s use of Butts v. Aurora
Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004), and
quoted, “The existence of a factual dispute is not sufficient
to defeat a summary judgment motion.” (Pl.’s Br. at 10.)
However, the full quotation from the district court
opinion goes on to state, “instead the non-moving party
must present definite, competent evidence to rebut the
movant’s asserted facts.” The district court’s citation
was preceded by an accurate and thorough analysis re-
garding the appropriate standard. As noted by the dis-
trict court, there must be a genuine issue of material fact.
No. 09-1051 9
Fortunately, the misconstruction of the district court’s
analysis did not go unnoticed.
A. Jurisdiction
Before we proceed to the merits of this appeal, we must
first address the threshold matter of our jurisdiction. The
district court dismissed two claims, one by each party,
without prejudice and provided leave to reinstate them
should this appeal fail, pursuant to Federal Rule of Civil
Procedure 41.
For this court to have jurisdiction on appeal under
28 U.S.C. § 1291, the judgment by the district court must be
final. 28 U.S.C. § 1291; see ITOFCA, Inc. v. Megatrans
Logistics, Inc., 235 F.3d 360, 363 (7th Cir. 2000). Whether
the notice of appeal was timely depends on whether
the dismissal was pursuant to Federal Rule of Civil Proce-
dure 41(a)(1) or Rule 41(a)(2). Claims dismissed pursuant
to Rule 41(a)(1) are complete on the dismissal without
any action by the district judge. Fed. R. Civ. P. 41(a)(1).
Conversely, claims dismissed pursuant to Rule 41(a)(2)
require an order by the district judge to become final.
Fed. R. Civ. P. 41(a)(2).
The parties were asked to submit supplemental memo-
randa in response to our concerns at oral argument re-
garding our jurisdiction. On October 9, 2009, they filed a
joint supplemental brief. The parties stipulated that both
claims were dismissed without prejudice pursuant to
Rule 41(a)(1). The parties further acknowledge that a
series of Seventh Circuit decisions “hold that the dis-
10 No. 09-1051
missal of one claim or theory without prejudice, with a
right to reactivate that claim after an appeal on the re-
maining theories, makes the judgment non-final.” See
First Health Group Corp. v. BCE Emergis Corp., 269 F.3d
800, 801 (7th Cir. 2001). At times, a partial final judgment
for such a claim is authorized by Rule 54(b), although
neither party suggests that Rule 54(b) is applicable here.
Instead, the parties argue that our precedent provides
that if each party stipulates to dismiss its respective
claim unconditionally so that it cannot be reinstated
no matter what happens on appeal, the appeal is per-
mitted to proceed. See id. at 802. At oral argument, counsel
for May said it does not plan to pursue its claim. Addi-
tionally, both parties confirm in their joint brief that
they will not pursue their respective claims.
Our precedent provides that when the party’s counsel
explicitly agrees at oral argument to treat the dismissal of
the claim as having been with prejudice, our bar to juris-
diction is lifted. JTC Petroleum Co. v. Piasa Motor Fuels, Inc.,
190 F.3d 775, 776-77 (7th Cir. 1999). Here, the parties did
not make such unequivocal statements of intent at oral
argument. NIR never commented on its intentions re-
garding its dismissed claim. Counsel for May stated that
May was not “planning on refiling.” But it is not clear
whether this statement should be interpreted as “we
will absolutely not pursue the claim,” or if the statement
itself hedged on the outcome of the appeal—that is, “we
do not plan to re-file, but if we lose (or think we will lose),
we might re-file.” In its joint brief, May states that it
“unequivocally confirms its position that it will not
No. 09-1051 11
pursue” its claim. It should be noted, however, that this
strongly worded statement was made after oral argu-
ment, when May had time to project its relative success
on the appeal.
As a result, we must determine whether parties can
stipulate to dismissal of their claims with prejudice after
oral arguments. As noted above, the parties were not
clear at oral argument with respect to their intent re-
garding the outstanding claims, thus prompting the
request for supplemental memoranda. Jurisdiction is not
something to be determined post hoc. But because we
permitted the parties to submit a revised statement re-
garding their respective intent not to pursue these
claims, and both parties have agreed not to pursue the
claims, we may consider their position in conjunction
with the original briefs filed.
We hold that the claims are dismissed with prejudice,
and that we have jurisdiction. Accordingly, we will
proceed to the merits of the appeal.
B. Count I—Breach of Contract
NIR argues, not without ambiguity, that the district
court erred by granting summary judgment in favor of
May on the breach of contract claim, because NIR pre-
sented triable issues regarding “two separate breaches”
by May.
As to the first alleged breach, NIR claims that May failed
to “implement” its “duties” under the agreement, because
May was purportedly required to utilize due care and
12 No. 09-1051
diligence in fulfilling these so-called duties, and May
acted negligently by not doing so. At both oral argument
and in its brief, NIR appears to weave tort and contract
claims together, or, as May argued, and we agree, NIR
“wanders drunkenly” between theories. As an alter-
native basis for its first breach of contract claim, NIR
argues that because May was performing “management
services,” May breached an implied warranty of workman-
like performance and failed to exercise reasonable care.
The district court noted that NIR did not appear to
assert a separate breach of warranty claim and did not
provide notice in its amended complaint that it was
seeking to assert such a claim. However, the district court
also commented that May never argued that NIR’s claim
was not properly before the court. The district court then
decided to address the claim. On appeal, May notes the
district court’s comments and argues in the alternative
that implied warranties do not exist for “professional
services” under Kansas law.
As evidence of these claims, NIR advances various
arguments in an attempt to show a breach by claiming that
May negligently hired and supervised Doane; however,
May argues on appeal that NIR failed to make any claim
in its complaint for negligent hiring of Doane and conse-
quently may not seek to amend its complaint now.
In support of the second alleged breach, NIR argues
that May breached the agreement by not securing a bond
for Doane, and that the district court ruled improperly
when it found that NIR did not suffer any attendant
damages.
No. 09-1051 13
As an initial matter, both parties stipulate that Kansas
law applies, and the district court appears to have ap-
plied Kansas law, so we will analyze this appeal accord-
ingly. Under Kansas law, a breach of contract claim
requires “(1) the existence of a contract between the
parties; (2) consideration; (3) the plaintiff’s performance or
willingness to perform in compliance with the contract;
(4) defendant’s breach of the contract; and (5) that plain-
tiff was damaged by the breach.” Britvic Soft Drinks Ltd. v.
ACSIS Tech., Inc., 265 F. Supp. 2d 1179, 1187 (D. Kan. 2003).
Because the first two elements of a breach are not in
dispute, we begin with the third element—whether the
plaintiff-appellant’s performance or willingness to per-
form was in compliance with the contract. We find
that NIR failed to comply with the agreement. The agree-
ment expressly provides that NIR was prohibited
from hiring any May employee within one year fol-
lowing the engagement. However, immediately upon
the termination of the engagement, NIR hired Doane
in direct contravention of the no-hire provision. Although
the parties dispute Doane’s exact hiring date, there
is no question that it was within the year following the
engagement.
We find it remarkable that NIR now attempts to blame
May for its own contractual breach. As part of NIR’s
negligent hiring and supervision claims, NIR accuses
May of failing to perform a background check on Doane.
The district court commented that NIR did not expressly
address in the argument section of its response its
issue with May not performing a background check on
14 No. 09-1051
Doane. Nevertheless, the court addressed NIR’s argu-
ments when ruling on Counts II and III (Fraudulent and
Negligent Misrepresentation). On appeal, however, NIR
incorporates these arguments as a basis for its Count I
breach of contract claim. We note that NIR claims May’s
“negligence” is a breach of an implied warranty, while
at the same time it appears it is claiming an express
breach of Projects 2.8 and 2.3 because of a failure to
“implement” or “attain” some type of contractual ob-
ligation.
In other words, NIR flips its own breach of the no-hire
provision on its head, and claims May’s “negligence and
misrepresentations” contributed to NIR’s (improper) hiring
of Doane, and breach of the agreement. But the record
clearly indicates that it was NIR that did not perform a
background check prior to hiring Doane. And, it was
Price’s decision to hire Doane; Price knew of the no-hire
provision, but made no effort to directly verify Doane’s
employment status with May. The district court also cor-
rectly noted that, even if May had performed a crim-
inal background check, there is nothing in the record
indicating that Doane had any criminal history, thereby
releasing May of any negligent hiring. (App. at 312 n.11.)
Moreover, the record reveals that Price was satisfied with
Doane’s work as a May employee: he approved each
progress report, he wrote a letter expressing satisfaction
upon completion of the project, and he ultimately hired
Doane. Because NIR breached the agreement by hiring
Doane, its breach of contract claim fails.
As to the fourth element—whether May breached the
contract—the district court granted summary judgment
No. 09-1051 15
for May “to the extent that NIR’s breach of contract claim
is based on a purported ‘failure to implement.’ ” We
agree with the district court. As the district court noted,
NIR does not identify anything that May was required and
later failed to “attain” or “implement.” NIR apparently
searches for support in the language contained in
Projects 2.3 and 2.8, albeit in a different section of its
appellate argument, and it also quotes a paragraph in the
agreement that states: “For the guidance of Management
Service Development and progress, the Staff will design
an action program around each major objective sought. A
major objective is attained through a precisely formulated
phase or unit of Management Service termed a Project.”
The district court found that this language was “com-
pletely devoid of any specificity or detail as to what May
was supposed to do for NIR.” At oral argument, the
language was referred to by this court as “gobbledygook.”
But in tautological fashion NIR argues that, because it
believes a “natural reading” of the agreement is that
May had a duty to implement and attain various
projects, it has raised a genuine issue of material fact.
NIR fails to grasp that in order to survive summary
judgment, it must point to a specific obligation that
May failed to perform, and it cannot ask this court to
speculate as to which provision or provisions May might
have breached. See Trade Fin. Partners, 573 F.3d at 407
(citing Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th
Cir. 2008)). Although we must and do consider all infer-
ences in favor of NIR, we will not manufacture con-
tractual obligations that are not found fairly in the text
of the agreement or that simply do not exist. Further, the
16 No. 09-1051
contract makes clear that NIR was responsible for the
ultimate success or failure of the procedures on which
May consulted. The agreement provides:
Achievements realized from Management Service
work depend upon many factors, including
human aptitudes and cooperation with the
client’s staff, which factors are not within the
control of [May]. Therefore, it is understood
and agreed that no express or implied warranty
of any general or specific results shall apply to
the work done under this agreement.
(App. at 204.) Without more, NIR’s argument fails.
NIR asserts that its second breach of contract theory
springs from both the fourth and fifth elements of con-
tractual breach under Kansas law—breach by the de-
fendant and damages to the plaintiff, respectively. It
argues that May allegedly breached a general insurance
policy provision covering all May employees up to
$500,000. The district court again granted summary
judgment in favor of May. We agree with the district
court that “NIR failed to state how it was damaged by
May’s alleged failure to bond Doane,” and we find that
if there was any criminal activity by Doane it occurred
after Doane left the employ of May and was hired by NIR.
Tangled in the previously discussed breach of contract
claims, NIR asserts May was negligent and breached some
form of implied warranties. The district court granted
summary judgment in favor of May, finding (1) that NIR
did not dispute May’s disclaimer for such so-called
warranties, and (2) that NIR did not identify any par-
No. 09-1051 17
ticular terms of the contract under which May failed to
exercise due care or perform in a workmanlike manner.
We agree.
NIR appears to tether its negligent hiring and supervi-
sion claims to its breach of an implied warranty argu-
ment, which in turn falls under the umbrella of the
breach of contract claim that May failed to implement
properly projects 2.3 and 2.8. As a result, it is difficult to
determine at what point NIR is asserting an express versus
an implied warranty, or whether it is proceeding under
contract or tort law. Regardless, NIR argues that this
court must follow Kansas law, which it argues permits a
plaintiff to proceed in either contract or tort or both
against any party providing “management services” for a
failure to exercise due care and to provide the services
in a workmanlike manner. See Zenda Grain & Supply Co. v.
Farmland Indus., Inc., 894 P.2d 881, 890 (Kan. Ct. App.
1995) (“ ‘Where negligence on the part of the contractor
results in a breach of the implied warranty, the breach
may be tortious in origin, but it also gives rise to a cause
of action ex contractu. An action in tort may likewise be
available to the contractee and he may proceed against
the contractor either in tort or in contract; or he may
proceed on both theories.’ ” (quoting Gilley v. Farmer, 485
P.2d 1284, 1289 (Kan. 1971))).
The seminal case in Kansas dealing with the determina-
tion of whether a particular action is based in contract or
tort is Tamarac Development Co. v. Delamater, Freund &
Associates, P.A., 675 P.2d 361 (Kan. 1984). In Tamarac, the
Kansas Supreme Court noted, “We have consistently
18 No. 09-1051
held: The difference between a tort and contract action
is that a breach of contract is a failure of performance of
a duty arising or imposed by agreement; whereas, a tort
is a violation of a duty imposed by law.” Id. at 363
(internal quotation marks omitted). In determining
which standard should apply to different factual situa-
tions, the court provided:
[C]ertain professionals, such as doctors and law-
yers, are not subject to such an implied warranty.
However, an architect and an engineer stand in
much different posture as to insuring [sic] a
given result than does a doctor or lawyer. The
work performed by architects and engineers is an
exact science; that performed by doctors and law-
yers is not. A person who contracts with an archi-
tect or engineer for a building of a certain size and
elevation has a right to expect an exact result. The
duty of the architect is so strong and inherent in
the task, we hold it gives rise to an implied war-
ranty of workmanlike performance. An injured
party under these circumstances may choose his
remedy from express contract (if applicable),
implied warranty or negligence.
Id. at 365. (citation omitted) (emphasis added).
Applying Tamarac, the Kansas Court of Appeals in Zenda
held that “a contract providing for management services
is subject to an implied warranty of workmanlike perfor-
mance and must be performed skillfully, carefully, dili-
gently, and in a workmanlike manner.” 894 P.2d at 891.
No. 09-1051 19
NIR relies heavily on Zenda and its use of the term
“management services.” In Zenda, the term “management
services” was ascribed to a contract where Zenda Grain &
Supply Company literally “turned over management” of
the company to Double Circle Farm Supply Company, the
defendant. Id. at 885. Double Circle “installed” managers
who actually “managed” the cooperative. Id. at 886.
NIR relies too blindly on the term “management ser-
vice.” Despite the fact that May repeatedly used this term
in the agreement, unlike in Zenda, NIR did not out-
source the actual management of its company to May.
May simply assisted NIR on a number of projects
that May recommended and to which NIR agreed.
Nothing in the contract required May to produce an exact
result. Instead, we find that May provided management
consulting services that were of an imprecise nature. Addi-
tionally, according to the agreement, NIR maintained
full review and decision-making authority over the
entire engagement, and Price “examined, accepted and
approved” all projects.
We find that there was no implied duty for May
to exercise reasonable care or perform services in a work-
manlike manner. Thus, the appropriate action in this
case is in contract, not tort. Even if such a duty existed,
we have already determined there was no negligence on
May’s part. NIR has failed to show that May failed to
act with reasonable care.
Despite NIR’s convoluted arguments for breach of
contract, and in spite of taking all inferences in NIR’s
favor, we do not find any particular provision or theory
20 No. 09-1051
of which May clearly was in breach. On the other hand,
we find that NIR violated the agreement by hiring Doane.
Thus, we affirm the district court’s granting summary
judgment in favor of May on count I.
C. Counts II through V
We also agree with the district court’s ruling with re-
spect to the remaining counts alleging fraudulent misrep-
resentation, negligent misrepresentation, breach of fidu-
ciary duty, and constructive fraud, and see no value in
simply restating the lower court’s reasoning in connec-
tion with each count.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district court’s
grant of summary judgment in favor of May on all
claims brought against it by NIR.
4-9-10