NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 2009-1508 

 TIGER TEAM TECHNOLOGIES, INC. 

(formerly known as Blackwater Technologies, Inc.), 

Plaintiff-Appellant, 

v. 

SYNESI GROUP, INC. (formerly known as Portogo, Inc.), 

Defendant, 

and 

TIM OLISH and ROD MILEY, 

Defendants-Appellees. 

Boris Parker, Parker & Wenner, P.A., of Minneapolis, Minnesota, for plaintiffappellant. 

Robert Zeglovitch, Law Offices of Robert Zeglovitch, of St. Paul, Minnesota, for 

defendants-appellees. 

Appealed from: United States District Court for the District of Minnesota 

 

Judge Ann D. Montgomery 
NOTE: This disposition is nonprecedential.

 

United States Court of Appeals for the Federal Circuit 

 

2009-1508 

TIGER TEAM TECHNOLOGIES, INC. 

(formerly known as Blackwater Technologies, Inc.), 

Plaintiff-Appellant, 

v. 

SYNESI GROUP, INC. (formerly known as Portogo, Inc.), 

Defendant, 

and 

TIM OLISH and ROD MILEY, 

Defendants-Appellees. 

Appeal from the United States District Court for the District of Minnesota 

in case no. 06-CV-01273, Judge Ann D. Montgomery. 

 __________________________ 

 DECIDED: April 12, 2010 

 __________________________ 

Before MICHEL, Chief Judge, CLEVENGER and PROST, Circuit Judges. 

PER CURIAM. 

 Tiger Team Technologies, Inc. ("TTT") sued Synesi Group, Inc. ("Synesi") and 

two of its shareholder officers, Tim Olish and Rod Miley, in the United States District 

Court for the District of Minnesota. The district court granted summary judgment to 

defendants Olish and Miley and entered a default judgment against Synesi but awarded 

no damages to TTT. Tiger Team Techs., Inc. v. Synesi Group, Inc., 2009 WL 749814 

(D. Minn. 2009). TTT now appeals both orders. We affirm. 
I 

 The case arises from a contemplated joint business venture with TTT licensing 

and marketing Synesi's technology. Relations between the parties withered, and, 

among other things, TTT believed its business was harmed due to Synesi's public 

allegations of patent infringement. Along with various state law claims, TTT's original 

complaint filed in this action sought a declaratory judgment that TTT did not infringe 

Synesi's patents. Upon filing of the original complaint, the suit was thus denominated in 

the court system as a patent case. 

 By its second amended complaint, TTT dropped its declaratory judgment patent 

count, but left in the complaint several counts: Count I for Breach of Contract, Count II 

for Promissory Estoppel, Count III for Deceptive Trade Practices Under Minnesota 

Statute § 325D.44, Count IV for Unfair Competition, Count V for Common Law Fraud by 

Misrepresentation and/or Omission, Count VI for Negligent Misrepresentation and 

Count VII for Individual Liability against Olish and Miley. 

 Although the primary patent claim of noninfringement was dropped from the 

case, a remaining question of patent law lurked in Count III. A theory of liability under 

the Minnesota Deceptive Trade Practices Act ("MDTPA") is that Synesi disparaged 

TTT's products by asserting claims of patent infringement against TTT. For TTT to 

prevail on Count III, it would need to prove that its products did not infringe Synesi's 

patents. See McClure v. American Family Mut. Ins. Co., 223 F.3d 845, 854-55 (8th Cir. 

2000) (MDTPA claimant must prove falsity of allegedly false deceptive statement). 

TTT's right to relief on Count III of its amended complaint thus depends on the 

resolution of a substantial question of patent law. 

2009-1508 2 
 Our jurisdiction depends on whether the plaintiff's complaint as amended 

establishes that either federal patent law creates the cause of action or the plaintiff's 

right to relief depends on the resolution of a substantial question of patent law, in that 

patent law is a necessary element of one of the well-pleaded claims. Christianson v. 

Colt Indus. Operating Corp., 486 U.S. 800, 806-08 (1988). Because Count III depends 

on the resolution of a substantial question of patent law, we have jurisdiction over this 

appeal. See Additive Controls & Measurement Sys. Inc. v. Flowdata, Inc., 986 F.2d 

476, 478-79 (Fed. Cir. 1993) (applying similar analysis to a Texas state business 

disparagement claim). 

 Because the well-pleaded complaint defines our appellate jurisdiction, it is of no 

matter that TTT does not appeal the dismissal of Count III. In fact, while the district 

court dismissed or granted summary judgment on all of the counts, TTT only appeals 

the district court's grant of summary judgment on Counts I, II, IV and VII, and the 

dismissal of its request for damages under a default judgment entered against Synesi. 

II 

 Because the merits of the default judgment entered against Synesi are not 

appealed, the live controversy on appeal is whether Olish and Miley are liable to TTT 

under Counts I, II and V. Count VII represented TTT's attempt to pierce the corporate 

veil and thereby assign individual liability to Olish and Miley for the breach of contract, 

promissory estoppel, and common law fraud counts. The district court ruled against 

TTT on the merits of Counts I, II and V, and, in addition, held that on the facts of this 

case the corporate veil could not be pierced to establish liability for the individual 

defendants. 

2009-1508 3 
III 

 The district court refused to pierce Synesi's corporate veil with regard to the 

Breach of Contract and Promissory Estoppel counts. Under Minnesota law, the 

corporate veil may be pierced when the corporation is an alter ego or mere 

instrumentality of an individual shareholder or shareholders. Victoria Elevator Co. of 

Minneapolis v. Meriden Grain Co., 283 N.W.2d 509, 512 (Minn. 1979). The district court 

carefully assessed the facts alleged by TTT to support its piercing theory and found 

those allegations lacking in evidentiary support. Consequently, the district court ruled 

against TTT on Count VII, thus releasing Olish and Miley from liability under Counts I 

and II. We discern no clear error in any of the facts found by the district court in ruling 

on the corporate veil issue, and therefore affirm its grant of summary judgment 

regarding Counts I and II. 

IV 

 Count V charged Olish and Miley with making misrepresentations to TTT 

regarding the status of the Synesi's patents. Corporate officers can be found liable for 

fraudulent acts if they directly engage in the fraudulent conduct. See State by 

Humphrey v. Alpine Air Prods. Inc., 490 N.W. 2d 888, 897-98 (Minn. Ct. App. 1992). 

The second amended complaint specified the alleged misrepresentations, namely that 

"[d]espite the fact that they knew that no patent had yet been granted, [Olish and Miley] 

repeatedly assured [TTT's representative] Mr. Hogan that the Synesi technology was 

fully patented and that [TTT] would be granted a license to sell it." Second Am. Compl. 

¶ 52. The district court found that TTT presented no evidence that Olish or Miley made 

the alleged misrepresentations. 

2009-1508 4 
 TTT does not appeal the district court's factual finding regarding the 

misrepresentations alleged in the second amended complaint. Instead, TTT asserts 

reversible error by the district court in refusing to consider other alleged 

misrepresentations by Olish and Miley. The other alleged misrepresentations were first 

presented to the district court, and the defendants, by TTT in its opposition to the 

Defendants' Motion for Summary Judgment on the fraud count. 

 Under Federal Rule of Civil Procedure 9(b), a party alleging fraud "must state 

with particularity the circumstances constituting fraud or mistake." "This requirement is 

designed to enable defendants to respond specifically, and at an early stage of the 

case, to potentially damaging allegations of immoral and criminal conduct." BJC Health 

Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007). The district court held, 

with regard to TTT's new allegations, that "[t]heir late arrival to the lawsuit is prejudicial 

to Defendants." The court granted summary judgment to Olish and Miley on Count V. 

 On appeal, TTT recognizes that freely amending a complaint to add new 

allegations can be barred if the objecting party is prejudiced. Appellant's Brief at 33. 

Here, the district court made a finding of fact that the defendants would be prejudiced by 

allowing amendment to include TTT's new factual allegations to support Count V. We 

see no error in the ruling of prejudice by the district court and therefore affirm its grant of 

summary judgment of Count V. 

V 

 The final item of business in this appeal is TTT's appeal of the district court's 

order entering default judgment against Synesi, but without award of damages. The 

district court initially declined to rule on TTT's motion for default judgment against 

2009-1508 5 
2009-1508 6 

Synesi, because "Plaintiff has failed to submit documentation fixing its damages at a 

'sum certain' of $49,550,225, and, therefore, a default judgment will not be entered at 

this time." The district court further instructed TTT that "[i]f Plaintiff has appropriate 

documentation to support a judgment, such documentation should be submitted to the 

Clerk." 

 In response, TTT submitted an affidavit by Bart J. Ward, stating his views as to 

why the judgment should be set at $49,550,225. In response to this affidavit, the district 

court repeated the admonition it had issued when denying the original request for 

judgment: 

A "sum certain" under the rule means an amount that can be fixed by 

simple calculation or that can be set by documentation, such as an invoice 

or contract. It does not refer to a mere claim by a party for a specific 

amount, such as a multimillion dollar claim for damages. 

Accordingly, the district court held that TTT's affidavit of an expert did not meet the 

requirements of establishing a "sum certain." 

 We see no error in the district court's rejection of Mr. Ward's affidavit as 

insufficient to establish a sum certain to accompany the default judgment, and we 

therefore affirm the district court's entry of default judgment against Synesi without 

damages. 

VI 

 We affirm the judgment of the district court in all respects. 

COSTS 

No costs.