Susan Spitz v. Proven Winners North America , 759 F.3d 724 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3084
SUSAN SPITZ,
Plaintiff-Appellant,
v.
PROVEN WINNERS NORTH AMERICA,
LLC & EUROAMERICAN
PROPAGATORS, LLC,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cv-03997 — William T. Hart, Judge.
ARGUED MAY 20, 2014 — DECIDED JULY 21, 2014
Before KANNE, TINDER, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Susan Spitz, a freelance copywriter,
developed a plan to market “pet safe plants” to the burgeoning
pet supplies market. She pitched this idea to Amerinova, a
company that develops and licenses plant varieties. Although
Amerinova expressed interest, the project eventually stalled.
2 No. 13-3084
When Spitz discovered that Proven Winners, a company
partially owned by the owners of Amerinova, had described
some of its plants as “pet friendly” on its website and plant
tags, she sued. Her suit seeks damages for breach of an alleged
agreement with Amerinova. But Spitz did not sue Amerinova
for damages; instead, she filed suit against Proven Winners
and Euro. She raises a host of reasons why any contract with
Amerinova also binds Proven Winners and Euro but none of
them holds water. We therefore affirm the district court’s entry
of summary judgment in favor of Proven Winners and Euro.
I. BACKGROUND
Bringing an ornamental plant to the consumer market
involves a number of steps. First, a breeder develops a plant.
The breeder then sells or licenses that plant (sometimes with
the help of a breeder’s agent) to a propagator. The propagator
grows large numbers of starter plants, often by cultivating
cuttings from a mother plant provided by the breeder. Once
the starter plants reach a certain age, they are sold to either
wholesale or retail growers, who then sell the plants to
consumers.
EuroAmerican Propagators (“Euro”), as its name suggests,
is a plant propagator. Proven Winners North America (“Prov-
en Winners”) is a brand manager and marketing entity
responsible for two plant brands: Proven Winners and Proven
Selection plants. Proven Winners is equally owned by Euro
and two other propagator corporations: Four Star Greenhouse
and Pleasant View Gardens. Euro also uses a breeder’s agent,
Amerinova Properties (“Amerinova”). Amerinova locates new
breeders and identifies new plants that can be commercialized.
No. 13-3084 3
Euro and Amerinova are both owned in equal parts by John
Rader and Gerald Church. They are registered as separate
California LLCs, and there is no formal connection between the
two companies. The companies have separate bank accounts,
separate budgets, and file their taxes separately. But there are
many informal ties between them, in addition to their common
ownership. Amerinova was initially a property holding
company for Euro but transitioned into a licensing agent
around 2004. Church and Rader prevented Amerinova from
licensing plants to propagators that would become stiff
competition for Euro. For the first few years of Amerinova’s
existence, it did not turn a profit and depended on investment
from Euro for its operational expenses. And Josh Schneider,
Amerinova’s director of product development, worked about
half-time at Amerinova and half-time at Euro from 2004, when
Amerinova was created, until his departure in March 2006.
Moreover, checks for Schneider’s travel reimbursements and
salary came from Euro, although his salary and travel were
budgeted for by Amerinova.
The plaintiff in this case, Susan Spitz, is a retired freelance
copywriter. She did some freelance work in 2001 for Euro. In
2002 or 2003, she began working with Proven Winners to
develop a consumer publication called “Gardener’s Idea
Book.” The book included photos and suggestions for how to
use Proven Winners plants in home gardening. Spitz also
worked on a second edition of the Idea Book published in 2005,
which included a section about “Pet-friendly plants.” That
section focused primarily on plants that could withstand pet
traffic, though it also mentioned that the Humane Society
4 No. 13-3084
website maintained a list of plants that could be harmful to
pets.
In July 2005, Spitz met with Marshall Dirks, a Proven
Winners employee, and Ron Walder, a freelance graphic
designer, to discuss additional marketing projects for Proven
Winners. At the end of the meeting, Spitz approached Dirks
and proposed that Proven Winners develop a set of “pet safe”
plants sold under the Proven Winners label. Dirks told Spitz
that Proven Winners did not develop or create lines of plants
but that she should discuss the idea with someone at Euro.
Dirks passed the idea along to Schneider, who met with
Spitz to discuss the idea. Schneider liked the idea, and sug-
gested that Spitz present the idea to Church and Rader, the co-
owners of both Euro and Amerinova. In November 2005,
Schneider emailed Spitz a summary of “how a partnership
with Amerinova could be beneficial to you on your Pet Safe
Plants Line.” In that summary, Schneider explained that
Amerinova represented many plant breeders, which meant it
had access to a variety of plants that could be marketed as pet
safe. Schneider also proposed a $.02 per plant royalty for all
plants sold ”under the marketing plan for Pet Safe Plants.”
Spitz did not immediately accept the offer.
On February 23, 2006, Spitz met with Church, Rader, and
Schneider in Bonsall, California. She drafted confidentiality
and nondisclosure agreements, which she required each
attendee to sign before she began her presentation. Spitz then
described her marketing plan. The parties dispute whether she
accepted Schneider’s $.02 royalty offer at the meeting. They
next corresponded in April 2006, when Rader sent Spitz a letter
No. 13-3084 5
informing her that Schneider had left Amerinova. He added a
handwritten note to the bottom of the page: “I love your pet
safe plants idea and want to work with you to make it hap-
pen.” Spitz replied via email, noting that she still intended to
work with “Euro/Amerinova on PetSafePlants.” The parties
had no further discussions about Spitz’s idea, and neither Euro
nor Amerinova developed a line of pet safe plants.
At some point in 2005, Proven Winners began tagging
certain plants on its website as “pet friendly.” This attribute
later began appearing on plant tags as well. In 2008, it became
possible to search for Proven Winners plants bearing the “pet
friendly” tag. Taking offense to this labeling, Spitz filed suit
against Euro and Proven Winners on October 5, 2010. She
alleged violations of the Lanham Act, breach of confidentiality,
breach of contract, misappropriation of a trade secret, unjust
enrichment, and quantum meruit.1 All parties eventually
moved for summary judgment.
The district court granted summary judgment to Euro and
Proven Winners. With regard to Spitz’s breach of contract
claim, the court reasoned that Spitz had made no arguments
about corporate veil-piercing or alter egos, and that Euro was
not liable for Amerinova’s conduct. Further, Spitz’s conduct
after April 2006 demonstrated that she did not consider herself
bound by any contract with Euro or Proven Winners. And as
for Proven Winners, the court found Spitz did not present any
evidence that it had used Spitz’s marketing concept. At most,
1
Spitz appeals only the breach of contract, unjust enrichment, and
quantum meruit claims, so our review of the proceedings below will focus
on those arguments.
6 No. 13-3084
the court reasoned, Spitz showed that she had a contract with
Amerinova; she did not show that any such contract could be
attributed to Euro or Proven Winners.
The district court also granted summary judgment on
Spitz’s quasi-contract claims. It found the only service relating
to pet friendly or pet safe plants Spitz provided to either
defendant was her work on the 2005 Gardener’s Idea Book for
Proven Winners. Because she was adequately compensated for
that work, and she did not identify other services she provided
to Euro or Proven Winners for which she was not paid, she
was not entitled to any equitable remedy. Spitz now appeals.
II. ANALYSIS
Spitz makes a number of arguments explaining why,
although any oral contract she had was with Amerinova, she
should nevertheless recover from Euro and Proven Winners.
We address each of them in turn below, after dismissing her
arguments that California, rather than Illinois, law should
apply to her suit. We also dismiss her arguments in quasi-
contract and her contention that the district court abused its
discretion by denying her motion to compel.
A. Choice of Law
Before we begin a detailed analysis of the three claims Spitz
presents on appeal, we address her argument that California
law, rather than Illinois law, should govern her claims. Because
the district court was sitting in diversity, it was obligated to
apply the substantive law of the forum state (here, Illinois)
including its choice-of-law rules. Malone v. Corr. Corp. of Am.,
553 F.3d 540, 542 (7th Cir. 2009). Spitz argues that a properly-
No. 13-3084 7
completed choice-of-law analysis would require the court to
apply California, rather than Illinois, law.
But Spitz has not made the threshold showing Illinois
courts require before performing a choice-of-law analysis. The
Illinois courts hold that “a choice-of-law determination is
required only when the moving party has established an actual
conflict between state laws.” Bridgeview Health Care Ctr., Ltd. v.
State Farm Fire & Cas. Co., 10 N.E. 3d 902, 905 (Ill. 2014); see also
Morisch v. United States, 653 F.3d 522, 530 (7th Cir. 2011) (“since
neither party pointed to a conflict between Missouri and
Illinois law, the district court did not need to make a choice of
law decision”). At no point, either before the district court or
in her brief on appeal, has Spitz identified the purported
conflict between Illinois and California law.2 No choice-of-law
determination was required, and the district court was correct
to apply Illinois law.
B. Breach of Contract
Spitz next argues that the district court erred in granting
summary judgment to Euro and Proven Winners on her breach
of contract claims because disputed issues of material fact
remained. We review the district court’s decision on summary
judgment de novo, drawing all reasonable inferences in favor of
2
It appears that the relevant conflict is the way the two states treat
quantum meruit and unjust enrichment actions based on trade secrets. In
Illinois, such claims are pre-empted by the Illinois Trade Secrets Act. See
section II.C, infra. California, on the other hand, appears to recognize such
claims. See Desny v. Wilder, 299 P.2d 257, 270 (Cal. 1956). Regardless, the
parties have not identified the conflict.
8 No. 13-3084
the nonmoving party—Spitz, in this case. Ellis v. DHL Express
Inc., 633 F.3d 522, 525 (7th Cir. 2011).
To prevail on a breach of contract claim, a plaintiff must
establish the existence of a valid and enforceable contract,
plaintiff’s performance, defendant’s breach of the terms of the
contract, and damages resulting from the breach. Lindy Lu LLC
v. Ill. Cent. R.R. Co., 984 N.E.2d 1171, 1175 (Ill. App. 2013).
Thus, to survive summary judgment, Spitz must have pointed
to sufficient evidence supporting each of these elements.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (nonmoving
party must make a sufficient showing on all essential elements
of the case on which she has the burden of proof).
It is undisputed that Josh Schneider made Spitz an offer, via
email, of a two-cent royalty payment for every plant sold using
Spitz’s Pet Safe Plants marketing concept. And Spitz says she
accepted that offer during the Bonsall meeting. Spitz has thus
demonstrated that a contract existed for the purposes of
summary judgment. That contract, however, was with
Amerinova, not Proven Winners or Euro. Accordingly, she
must demonstrate either (1) that any actions taken by
Amerinova also bound Proven Winners and/or Euro (her
“entity theory”) or (2) that Josh Schneider was acting on behalf
of either Proven Winners or Euro, in addition to Amerinova
(her “agency theory”).
1. Entity Theory
Spitz’s entity theory comes in two flavors: either Proven
Winners was a member of a joint venture (“the PWJV”) along
with its three members, such that Euro’s activities could bind
No. 13-3084 9
Proven Winners; or Euro and/or Amerinova were the agents of
Proven Winners and could thus bind it.
Spitz first alleges that Proven Winners, Euro, Four Star, and
Pleasant View Gardens were part of a joint venture—that is,
the three members of Proven Winners, LLC turned around and
formed a joint venture with the LLC they created to “secure,
develop and bring new plant programs … into [Proven
Winners].” If Euro and Proven Winners were part of the same
joint venture, the argument goes, an action by Euro (such as
contracting with Spitz) could then also bind Proven Winners.
This is theoretically possible, as an LLC is a legal entity
separate from its members. Peabody-Waterside Dev., LLC. v.
Islands of Waterside, LLC, 995 N.E.2d 1021, 1024 (Ill. App. 2013).
Spitz says her evidence that the Proven Winners members (i.e.,
Euro, Four Star, and Pleasant View Gardens) work together
with Proven Winners pursuant to an “established procedure”
to develop plant programs required the district court to infer
that the Proven Winners members were part of a joint venture
with Proven Winners itself. But at the summary judgment
phase, we make only reasonable inferences, not every conceiv-
able one. Hannemann v. S. Door Cnty. Sch. Dist., 673 F.3d 746,
751 (7th Cir. 2012). Proven Winners’ operating agreement
provides that its members will, inter alia, “collectively identify,
trial, market, promote, and/or provide vigorous, disease-free
floricultural crops.” This is substantially identical to the alleged
purpose of the PWJV. The fact that Proven Winners conducted
business described in its operating agreement is “too thin a
reed” on which to base the inference that the PWJV existed.
McCann v. Iroquois Hosp. Corp., 622 F.3d 745, 754 (7th Cir. 2010).
10 No. 13-3084
Having discarded Spitz’s joint venture argument, we
address her argument that Euro/Amerinova was an agent of
Proven Winners. She argued before the district court that
Amerinova and Euro were one and the same, and that
Euro/Amerinova was an agent of Proven Winners and could
thus bind it to a contract with Spitz. Assuming as true for the
moment that Euro and Amerinova are a single entity, Spitz
points to no facts in her briefing for this court that would lead
us to believe Euro/Amerinova acted as an agent of Proven
Winners. She merely incorporates by reference arguments
made before the district court. This is insufficient to preserve
an argument for appellate review; “[a] brief must make all
arguments accessible to the judges, rather than ask them to
play archaeologist with the record.” DeSilva v. DiLeonardi, 181
F.3d 865, 867 (7th Cir. 1999). We decline to address this
argument further.
Related to this argument is Spitz’s jumbled “alter ego”
argument. Before the district court, Spitz tried to incorporate
by reference “the law on Alter Ego cited by Defendants,”
apparently in an attempt to save space in her filing. But the
“law on Alter Ego” the defendants cited described the require-
ments for piercing the corporate veil. Spitz has made no veil-
piercing arguments on appeal. The cases she cites relate to
whether Schneider had the authority to bind Euro or Proven
Winners, so we will treat her “alter ego” argument as one in
support of her agency theory.
2. Agency Theory
Spitz also argues that Schneider bound Proven Winners
and Euro by orally agreeing to the royalty contract because he
No. 13-3084 11
was acting within his actual or apparent authority for either or
both companies. The district court dismissed this point easily,
noting that “there is no evidence to support that, during the
pertinent time period, Schneider had authority to act on behalf
of Euro” and declining to address his relationship with Proven
Winners. We don’t think it is quite as simple as that.
Agency is a notoriously fact-bound question, but summary
judgment on the existence of an agency relationship is still
appropriate when the plaintiff fails “to meet her burden in
presenting sufficient facts to show that a genuine issue of
material fact exists with respect to the agency issue.” Doe v.
Cunningham, 30 F.3d 879, 885 (7th Cir. 1994) (citing Johnson v.
Methodist Med. Ctr. of Ill., 10 F.3d 1300, 1306 (7th Cir. 1993)).
First, Spitz argues that Schneider had actual authority to
bind Proven Winners and/or Euro to royalty contracts. To
support this claim, she points to evidence that Schneider
regularly acted on behalf of both Proven Winners and Euro,
even though he was employed by Amerinova. Schneider
worked for Euro beginning in October 2000. In 2004, he became
“director of product development” for the newly-formed
Amerinova. Although this was his primary job, he continued
to manage Euro’s product development. Schneider also
worked for Proven Winners, representing them at various
industry events.
But more than this is required to prove that Schneider had
actual authority to bind either Euro or Proven Winners
contractually. To do so, Spitz had to present evidence that “(1)
a principal/agent, master/servant, or employer/employee
relationship existed; (2) the principal controlled or had the
12 No. 13-3084
right to control the conduct of the alleged employee or agent;
and (3) the alleged conduct of the agent or employee fell within
the scope of the agency or employment.” Wilson v. Edward
Hosp., 981 N.E.2d 971, 978 (Ill. 2012). Spitz presented no
evidence that committing Proven Winners to paying two-cent
royalty contracts fell within the range of Schneider’s duties.
And Schneider himself stated in his deposition that while he
could negotiate deals for Proven Winners and Euro, only Rader
and Church signed and vetted contracts. We see no genuine
issue of material fact as to whether Schneider had the actual
authority to contract on behalf of Proven Winners or Euro.
Spitz next claims that even if Schneider lacked actual
authority to bind Proven Winners or Euro, he had apparent
authority to do so. She raised this argument below but the
district court did not address it, instead only mentioning that
there was no evidence Schneider or Euro actually had author-
ity to act to bind Proven Winners. The lack of actual authority
is not dispositive as to apparent authority. Apparent authority
arises when (1) the principal or agent acts in a manner that
would lead a reasonable person to believe the actor was an
agent of the principal, (2) the principal knowingly acquiesces
to the acts of the agent, and (3) the plaintiff reasonably relies on
the actions of the purported agent. Wilson, 981 N.E.2d at 978.
Proven Winners held Schneider out as an employee, giving
him a company email address and business cards. And Spitz
presented evidence of numerous negotiations Schneider
conducted for Proven Winners. These actions could lead a
reasonable person to believe that Schneider was Proven
Winners’s agent and had the authority to enter contracts on its
behalf.
No. 13-3084 13
With regard to Euro, Spitz presented evidence that the lines
between Euro and Amerinova were ambiguously drawn. Both
companies had the same two principals, and business meetings
tended to cover both Euro and Amerinova-related topics.
Amerinova and Euro shared a phone number, and their
employees used the terms Amerinova and Euro interchange-
ably. We have previously found this kind of casual overlap
between companies to permit a reasonable person to assume
an employee of one has the authority to contract on behalf of
the other. Podolsky v. Alma Energy Corp., 143 F.3d 364, 371 (7th
Cir. 1998) (reversing district court’s grant of summary judg-
ment on agency question where purported agent worked for
sister company of company sought to be bound, and the two
companies were owned by the same two men, they operated
out of the same office, and were described during negotiations
as being essentially the same).
But additional undisputed facts foreclose a finding that
Spitz’s belief was reasonable. Although the existence of an
agency relationship is typically a question of fact, Podolsky,143
F.3d at 370, questions of fact can become questions of law
where undisputed facts lead to only one reasonable inference.
Lockwood v. Bowman Constr. Co., 101 F.3d 1231, 1235 (7th Cir.
1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986)). Here, Spitz was explicitly told on multiple occasions
that she was negotiating with Amerinova, not Euro or Proven
Winners. Marshall Dirks told her that Proven Winners was not
interested in the idea, and that she would have to take it to
Euro. Spitz does not contest this fact. And the offer Schneider
made to Spitz came from his Amerinova email address and
referenced only Amerinova working with her to implement the
14 No. 13-3084
pet safe plants idea. Further, Spitz had worked with Proven
Winners and Euro long enough to understand they were
legally distinct entities and admitted as much in her deposi-
tion. In light of these undisputed facts, it was unreasonable for
Spitz to believe that Schneider was acting with authority to
bind Proven Winners and/or Euro, regardless of any other
activities he might have undertaken on their behalf.
C. Quasi-Contract
Spitz further argues that Proven Winners and/or Euro are
liable to her under a quantum meruit or unjust enrichment
theory because they misappropriated her “pet safe plants”
idea. But these claims, when based on misappropriation of a
trade secret, have been replaced under Illinois law by the
Illinois Trade Secrets Act (the “ITSA”). That statute “is in-
tended to displace conflicting tort, restitutionary, unfair
competition, and other laws of this State providing civil
remedies for misappropriation of a trade secret.” 765 ILCS
1065/8. Because unjust enrichment and quantum meruit are
essentially claims for restitution, Spitz’s claim fails. Pope v.
Alberto-Culver Co., 694 N.E.2d 615, 619 (Ill. App. 1998).
Spitz contends that since the district court found her idea
was not a trade secret, her claim is not preempted by the ITSA.
But Illinois courts have read the preemptive language in the
ITSA to cover claims that are essentially claims of trade secret
misappropriation, even when the alleged “trade secret”does
not fall within the Act’s definition. See id. (finding claim for
unjust enrichment as a result of misappropriation of proposal
preempted by the ITSA, even though the proposal itself was
not a trade secret within the meaning of the Act).
No. 13-3084 15
D. Denial of Motion to Compel
Spitz finally argues that the district court abused its
discretion when it denied her motion to compel Proven
Winners and Euro’s production of evidence relating to Schnei-
der’s authority and prior two-cent plant contracts with third
parties. While we review the district court’s actions for abuse
of discretion, we will only grant relief if Spitz can demonstrate
that the denial of additional discovery “resulted in actual and
substantial prejudice.” e360 Insight, Inc. v. Spamhaus Project, 658
F.3d 637, 644 (7th Cir. 2011).
Spitz cannot demonstrate such prejudice. The additional
discovery she sought focused on Schneider’s authority and
Proven Winners and Euro’s dealings with third parties
concerning two-cent contracts. But, as we noted above, to
survive summary judgment on Schneider’s actual or apparent
authority, Spitz would have to present evidence that her belief
that Schneider was negotiating on behalf of Euro and Proven
Winners was reasonable. Because of the undisputed facts
concerning the negotiations and Spitz’s prior knowledge, it
was not. No additional information about Proven Winners
and/or Euro’s dealings with third parties can alter that conclu-
sion.
Spitz further contends that this evidence would be relevant
to establishing the existence of the PWJV. It is not. As previ-
ously stated, it belies reason to believe that the members of
Proven Winners, having already formed Proven Winners to
develop and market plants under the Proven Winners line,
would have formed a joint venture with Proven Winners to
accomplish the exact same goal. It was not an abuse of discre-
16 No. 13-3084
tion for the district court to deny Spitz the opportunity to
wriggle down that rabbit hole, particularly given the pro-
tracted scope of discovery. The parties had already taken a
combined total of more than twenty depositions and produced
thousands of documents. We see no abuse of discretion here.
III. CONCLUSION
Despite extensive discovery and argument, Spitz has failed
to persuade us that any legal theory exists that would allow us
to hold Proven Winners and Euro accountable for a contract
allegedly reached with Amerinova. For that reason, we
AFFIRM the district court’s entry of summary judgment in
favor of the defendants.