United States District Court, D. Minnesota
D. Robb, Esq., Karna A. Berg, Esq., Katie M. Connolly, Esq.,
and Peter D. Gray, Esq., Nilan Johnson Lewis PA, counsel for
A. Myers, Esq., Victoria H. Buter, Esq., and Thomas H. Dahlk,
Esq., Kutak Rock LLP, counsel for Defendants.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK, UNITED STATES DISTRICT JUDGE.
Loftness Specialized Farm Equipment, Inc.
(“Loftness” or “Plaintiff”) brought
this declaratory judgment action against Defendants Terry
Twiestmeyer (“Twiestmeyer”), Steven Hood
(“Hood”), and Twiestmeyer & Associates,
Inc.'s (“TAI”) (collectively,
“Defendants”). Defendants brought several
counterclaims, including claims for unjust enrichment and the
breach of two contracts--a May 2008 Override
Agreement and a Non-Disclosure Agreement (“NDA”).
Plaintiff previously moved to dismiss Defendants'
counterclaims. In an Order dated April 13, 2012, the Court
dismissed all counterclaims with the exception of the
counterclaims for breaches of the Override Agreement and NDA.
(Doc. No. 36.) Plaintiff then moved for summary judgment on
Defendants' remaining counterclaims. In an Order dated
October 15, 2012, the Court granted Plaintiff's motion on
the two remaining breach-of-contract counterclaims. (Doc. No.
61.) Defendants appealed the Court's grant of summary
judgment and the Court's previous dismissal of the unjust
enrichment claim. The Eighth Circuit Court of Appeals
affirmed the grant of summary judgment on the counterclaim
for breach of the Override Agreement and the dismissal of the
unjust enrichment claim, and vacated and remanded the
Court's order granting summary judgment on the
counterclaim for breach of the NDA. (Doc. No. 75;
Loftness Specialized Farm Equip., Inc. v.
Twiestmeyer, 742 F.3d 845 (8th Cir. 2014)
(“Loftness I”).) On remand, the Court
granted Plaintiff's motion for summary judgment on the
remaining counterclaim for breach of the NDA. Defendants
again appealed, and the Eighth Circuit concluded that fact
issues exist with respect to the parties' intent on
whether the NDA protected information disclosed by TAI for
the term of the NDA (twenty (20) years) regardless of whether
that information subsequently became publicly available.
(Doc. No, 93; Loftness Specialized Farm Equip., Inc. v.
Twiestmeyer, 818 F.3d 356 (8th Cir. 2016)
before the Court are two motions. First, Plaintiff moves for
summary judgment on Defendants' sole remaining
counterclaim-breach of the NDA. (Doc. No. 118.) Second, Plaintiff
moves to strike Defendants' damages expert, Zach Eubank.
(Doc. No. 121.) For the reasons discussed below, the Court
grants in part and denies in part Plaintiff's motion for
summary judgement and denies the motion to strike.
facts of this case have been thoroughly recited in prior
orders and the Court briefly summarizes the facts herein.
Loftness is in the business of manufacturing and selling
specialized farm machine equipment, including grain bag
loaders (“GBLs”) and grain bag unloaders
(“GBUs”). Loftness uses independent sales
representatives to sell its products. Twiestmeyer owns TAI,
which is in the business of marketing and selling grain
bagging equipment. (Doc. No. 13, Answer (“Ans.”)
and Counterclaim (“CC”), Ans. ¶ 2.) TAI was
an independent sales representative for Loftness. (CC ¶
6.) Hood & Company, Inc., owned by Defendant Steven Hood,
was also a sales representative for Loftness. (Id.
¶¶ 2, 7.)
and Hood sold grain-bagging equipment manufactured in
Argentina, giving them knowledge about the market for
grain-bagging equipment and insight into possible
improvements that could be made to the Argentine-made
equipment. On May 15, 2007, Twiestmeyer and Hood met with
representatives of Loftness to discuss an idea for a
grain-bagging product line to sell in the United States-the
“Grain Bag Storage System.” At the meeting,
Loftness and TAI executed the NDA. (Doc. No. 1, Compl. ¶
8, Ex. A (the “NDA”); Ans. ¶ 8; CC ¶
10.) The NDA contains the following key provisions and
This [NDA] is made between TWIESTMEYER & ASSOCIATES,
INC., a Nebraska corporation having offices at 3119 Briarwood
Blvd., Grand Island, NE, 68803 (the “Disclosing
Party”) and LOFTNESS SPECIALIZED FARM EQ, INC. (the
“Receiving Party”), having offices at 650 SO.
MAIN ST, HECTOR, MN 55342.
(NDA at 1.)
1. Confidential Information. Such
information that [TAI] considers to be proprietary and/or
confidential, which may include, but is not limited to,
prototypes, representative or demonstrative objects, trade
secrets, discoveries, ideas, know-how, techniques, designs,
specifications, drawings, data, computer programs, business
activities and operations, reports, memoranda, studies, and
other technical or business information.
2. Disclosing Party. For purposes of this
Agreement, the Disclosing Party will be the party that is
revealing or disseminating information to another party,
person or entity.
3. Project. Any matter being developed,
discussed, worked on, shared or contracted for between the
parties to this Agreement.
4. Receiving Party. For purposes of this
Agreement, the Receiving Party will be the party, person or
entity that receives Confidential Information from the
(NDA, Definitions ¶¶ 1-4.)
. . . .
2. Protection of Confidential Information.
[Loftness] acknowledges that [TAI] claims its Confidential
Information as a valuable and unique asset. For itself and on
behalf of its officers, directors, agents, employees, and
affiliates, [Loftness] agrees that it will keep in confidence
all Confidential Information, and that it will not directly
or indirectly disclose to any third party or use for its own
benefit, or use for any purpose other than the Project, any
Confidential Information it receives from [TAI]. [Loftness]
agrees to protect the Confidential Information, and agrees
that in no event will it use less than the same degree of
care to protect the Confidential Information as it would
employ with respect to its own information of like importance
that it does not desire to have published or disseminated.
. . . .
11. Miscellaneous. This is the only agreement
between Disclosing Party and Receiving Party concerning
Confidential Information, and it may not be modified, amended
or terminated, in whole or in part, ...