United States District Court, S.D. Alabama, Southern Division
K. DUBOSE, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' motion for
summary judgment (American Vascular Access, LLC (Access) and
Janet R. Dees (Dees)) (Doc. 91), Plaintiff Vascular Ventures,
LLC (Plaintiff)'s Response (Doc. 93) and Defendants'
Reply (Doc. 99).
action stems from Plaintiff's August 9, 2016 complaint,
02-CV-2016-901640, filed in the Circuit Court of Mobile
County, Alabama against Dees, Access, “any
subsidiary” of Access “formed after December 30,
2009[, ]” and “nominal” defendants. (Doc.
1-2). On September 12, 2016, Access removed the case on the
basis of federal diversity subject matter jurisdiction. (Doc.
1). On December 7, 2016, the Court issued an R&R on the
parties' respective motions to dismiss, transfer and
remand, through which the Court denied remand and transfer,
dismissed all defendants except Access and Dees, and
dismissed all claims except for breach of contract based on a
December 30, 2009 letter (Count One), promissory fraud (Count
Three) and civil conspiracy (Count Six). (Doc. 28). On
December 28, 2016, the R&R was adopted. (Doc. 29);
Vascular Ventures, LLC v. American Vascular Access,
LLC, 2016 WL 7471642 (S.D. Ala. Dec. 7, 2016),
R&R adopted (S.D. Ala. Dec. 28,
2016). On August 18, 2017, Access and Dees
moved for summary judgment on the three (3) remaining claims.
Findings of Fact 
2008-2009, Access negotiated with Plaintiff and its members
(physicians) to purchase a 40% interest in
Plaintiff's lab-based interventional nephrology practice
in Mobile, Alabama (which ultimately became Mobile Vascular
Labs, LLC). As an “additional incentive” to
Access' payment to Plaintiff for that 40% interest,
Access promised to reserve a minimum of up to 10% of
Access' portion of future joint ventures and business
opportunities for Plaintiff.
November 2009, the parties discussed what those future
opportunities might entail. Also, Access' President Janet
Dees (Dees) explained to Plaintiff that she intended for the
ventures to be entered into by separate new holding companies
that would be created as co-owners in other dialysis access
clinics. (Doc. 95-2 SEALED (Dep. Dees at 181-189).
Specifically, separate holding companies, originating from
Access, would be formed to hold equity positions in new
ventures through which Access would perform development and
management services for the holding companies and have an
ownership interest in them. (Doc. 91-1 (Dep. Dees at 493);
Doc. 95-2 SEALED (Dep. Dees at 183-185).
parties discussed the first such “deal” for a
business in the Atlanta, Georgia area. On November 24, 2009,
Access' Chief Operating Officer William G. Wright
(Wright) e-mailed preliminary figures and estimates for the
Atlanta “deal” (including investment cash flow,
revenue assumptions, start up costs, etc.) to Plaintiff c/o
Butera (Plaintiffs President), with a copy to Dees.  (Doc. 95-4 SEALED;
Doc. 91-2 (Dep. Butera at 170-171, 173); Doc. 91-2 at 54;
Doc. 95-3 SEALED (Dep. Wright at 154); Doc. 95-6 SEALED (Dep.
Butera at 68)). On December 30, 2009, Access issued a letter
to Plaintiff (the Side Letter) stating the parties'
91-2 at 52).
testified that per the Side Letter, Access planned for
holding companies to be created for new vascular centers that
Access might do business with and have ownership interest in,
and Plaintiff would then have opportunities to buy at least a
10% interest in those holding companies. (Doc. 95-2 SEALED
(Dep. Dees at 186-186); Doc. 95-3 SEALED (Dep. Wright at
240)). Per Access, the Side Letter created a contractual
obligation on the part of Access to offer to Plaintiff at
least a 10% interest in future investment opportunities.
(Doc. 95-2 SEALED (Dep. Dees at 364-365)). See also
(Doc. 95-3 SEALED (Dep. Wright at 217) (“Our [Access]
intent with them was always just as the document reads, to
give them a 10 percent offering on the new
deals….”). The Side Letter was executed as part
of the overall closing for Access to be a 40% member in
Mobile Vascular Labs. (Doc. 95-2 SEALED (Dep. Dees at 356).
February 8, 2010, approximately six (6) weeks later, Access
entered into the first of a series of ventures without Plaintiff. (Doc.
93 at 5 (citing 95-5 SEALED); Doc. 95-3 SEALED (Dep. Wright
at 196); Doc. 95-2 SEALED (Dep. Dees at 365)). This first
venture resulted in Access (c/o the Florida holding company
it created for said purpose, AVA Newman Holdings, LLC)
purchasing a 45% equity interest in the Georgia dialysis
access clinic, without Plaintiff. (Doc. 95-5 SEALED); Doc.
95-3 SEALED (Dep. Wright at 213)). Plaintiff alleges that
thereafter, Access entered into other ventures -- 13
known --without Plaintiff. The parties dispute what was
communicated between them and what (and whether) the promised
10% interest offers for new ventures were made from Access to
Standard of Review
“The court shall 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). Rule 56(c) provides as
(1) Supporting Factual Positions. A party asserting that a
fact cannot be or is genuinely disputed must support the
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible
Evidence. A party may object that the material cited to
support or dispute a fact cannot be presented in a form that
would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the
cited materials, but it may consider other materials in the
(4) Affidavits or Declarations. An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.
Fed.R.Civ.P. Rule 56(c).
as the parties seeking summary judgment, bear the
“initial responsibility of informing the district court
of the basis for its motion, and identifying those portions
of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact.” Clark v.
Coats & Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986)). If the nonmoving party fails to make “a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof, ” the
moving party is entitled to summary judgment. Celotex, 477
U.S. at 323. “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the
evidence and making credibility determinations of the truth
of the matter. Instead, the evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn
in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d
994, 998-999 (11th Cir. 1992).
Breach of Contract
outset, the parties dispute which state's law applies to
the breach of contract claim. This Court exercises
diversity-of-citizenship jurisdiction over this case such
that the choice of law principles of Alabama, the forum
state, apply. Klaxon Co. v. Stentor Electric Mfg. Co., 313
U.S. 487, 496 (1941); Fioretti v. Mass. Gen. Life Ins. Co.,
53 F.3d 1228, 1235 (11th Cir. 1995). Alabama
applies the law of the state where the contract was formed
(made) (lex loci contractus) unless: 1) a provision
in a contract specifies the governing law (Cherokee Ins.
Co. v. Sanches, 975 So.2d 287, 292 (Ala. 2007) and
Fairhope Piggly Wiggly-Inc. v. PS2 LED, Inc., 2017
WL 2865528, *3 (S.D. Ala. Jul. 5, 2017); or 2) the
contract is to be performed in another state (Owens v.
Superfos A/S, 170 F.Supp.2d 1188, 1194-1195 (M.D. Ala.
2001)). “A contract is usually governed as to its
nature, obligation, validity, and interpretation by the law
of the place where it is made, unless it is to be wholly
performed in another state, in which case the place of
performance…must govern.” Western Union
Telegraph Co. v. Hill, 50 So. 248, 251 (Ala. 1909).
See also J.R. Watkins v. Hill, 108 So. 244, 245
(1926) (emphasis in original) (same).
Side Letter between the parties contains no choice of law
provision and does not specify performance in a state other
than Alabama. As such, the Court looks to the state where the
contract was formed (made), unless the contract specifies
that it is to be performed in a different state as that
state's law will then govern. As to formation,
“[t]he elements of a valid contract include offer and
acceptance, consideration, and mutual assent or a meeting of
the minds as to the terms essential to the formation of the
contract.” Ex parte Grant, 711 So.2d 464, 464
(Ala. 1997). Univalor Trust, SA v. Columbia
Petroleum, LLC, 2017 WL 2303999, *9 (S.D. Ala.
May 25, 2017). A contract is formed (made) upon acceptance
(the expression or manifestation of assent to the terms
offered) of an offer, and acceptance is the last act
necessary to complete a contract. See, e.g.,
Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking,
Inc., 363 F.3d 1089, 1093 (11th Cir. 2004)
(“the ‘last act necessary to complete a contract
is the offeree's communication of acceptance [of the
offer] to the offeror'”); Fairhope Piggly
Wiggly-Inc. v. PS 2 LED, Inc., 2017 WL 2865528, *5 (S.D.
Ala. Jul. 5, 2017) (discussing mutual assent to the terms
offered as manifested by acceptance, and acceptance as then
forming the contract); Cordova v. R&A Oysters,
Inc., 169 F.Supp.3d 1288 (S.D. Ala. 2016) (“a
contract was formed by acceptance of an offer”).
Side Letter (the contract) was drafted by Access. (Doc. 95-2
SEALED (Dep. Dees at 355). The offer was extended from Access
to Plaintiff in Alabama. (Doc. 3 at 2; Doc. 93 at 9). The
offer from Access to Plaintiff was to buy Plaintiff's 40%
interest in Plaintiff's Alabama entity (Mobile Vascular
Labs, LLC) and to “reserve a minimum of up to
10%” of any future joint venture or business
opportunity for Plaintiff to invest, in return for
consideration of $3, 185, 100. Access' offer was accepted
when Plaintiff agreed to the terms offered by Access (to sell
its 40% interest in the entity and receive the right to
invest up to 10% in Access' future ventures) and received
the $3, 185, 000 consideration. That acceptance, by an
Alabama entity and its Alabama physicians, occurred in
Alabama. The Side Letter was thus formed in Alabama, and
Alabama law governs the breach of contract claim.
regard to Dees, an individual and the President of Access,
she cannot be held personally liable for breach of contract.
The evidence indicates that the Side Letter was signed and
executed by Dees, while acting in her capacity as Access'
President, and on that entity's behalf. There is no
evidence that Dees signed or executed the Side Letter in her
individual or personal capacity. There is nothing in the Side
Letter indicating a personal promise or obligation on the
part of Dees to Plaintiff, and there is no evidence before
the Court of such. “It is axiomatic that officers of a
corporation are merely agents of the corporation and are not
personally liable for obligations incurred by the corporation
in the usual course of business, absent a statute, charter
provision, or personal agreement to the contrary.
Whitehead v. Davison Oil Co. Inc.,352 So.2d 1339
(Ala.1977).” T ...