UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO.: 0:22-cv-62268-BB

JESSE IWUJI MOTORSPORTS, LLC,

Plaintiff/Counter-defendant,

v.

EQUITY PRIME MORTGAGE, LLC,

Defendant/Counterclaimant.

______________________________________/

Plaintiff/Counter-Defendant Reply In Support of Motion For Summary Judgment

Plaintiff/Counter-Defendant, Jesse Iwuji Motorsports, LLC (“JIM”), by and through 

undersigned counsel, hereby replies to Defendant/Counterclaimant’s, Equity Prime Mortgage, 

LLC (“EPM”), Opposition to JIM’s Motion for Summary (“Opposition”) [D.E. 38], and, in support 

thereof, states as follows:

I. Argument / Memorandum of Law

a. Legal Standard

The first argument raised in EPM’s Opposition is that JIM has failed to meet its burden to 

obtain summary judgment as it relates to JIM’s Second Amended Complaint [D.E. 7], because 

JIM failed “to present any affidavits or other sworn testimony to establish the existence of: (a) an 

Agreement; (b) Plaintiff’s performance under the Agreement; or (c) EPM’s purported breach.” 

[D.E. 38, pg. 7]. Though a party seeking summary judgment bears the initial responsibility of 

informing the district court of the basis for its motion and identifying those portions of the record 

and/or evidence that demonstrate the absence of a genuine issue of material fact – see Celotex 

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Corp. v. Catrett, 477 U.S. 317, 323 (1986) – there is no express or implied requirement contained 

in Fed. R. Civ. P. 56 that the moving party must support its motion with affidavits. Id. (citing to 

FRCP 56 to show lack of requirement to support summary judgment motion with affidavits and 

stating “regardless of whether the moving party accompanies its summary judgment motion with 

affidavits, the motion may, and should, be granted so long as whatever is before the district court 

demonstrates that the standard for the entry of summary judgment...is satisfied.”) (emphasis 

added); see also Id. at 324 (stating a motion for summary judgment may be made pursuant to Rule 

56 “with or without supporting affidavits.”) (emphasis added).

Once the moving party has met its burden under Rule 56(c), the burden shifts to the 

nonmoving party to establish that there is a genuine issue of material fact. See Matsushita Elec. 

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In doing so, the nonmoving party 

“must do more than simply show that there is some metaphysical doubt as to the material facts.” 

Id. at 586. The nonmoving party may not rest upon the mere allegations or denials of the moving 

party’s pleadings, but must come forward with “specific facts showing that there is a genuine issue 

for trial.” Id. at 567 (emphasis in the original). “Where the record taken as a whole could not lead 

a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Id. “A 

mere ‘scintilla’ of evidence supporting the opposing party's position will not suffice; there must 

be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 

F.2d 1573, 1577 (11th Cir.1990). 

b. JIM has satisfied its burden to obtain summary judgment as it relates to JIM’s 

Second Amended Complaint.

Taking the foregoing into account, EPM is incorrect that JIM is required to provide 

affidavits or declarations in support of its Motion for Summary Judgment [D.E. 33], as JIM has 

cited to other materials in the record in support of its demonstration that no genuine issue of 

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material fact exists that would preclude the Court’s granting of JIM’s Motion for Summary 

Judgment. Particularly:

• Via its Statement of Material Facts [D.E. 32] (“Statement of Material Facts”), JIM 

cites to the parties’ execution of the Sponsorship Agreement for the purpose 

establishing the existence of an agreement between the parties. See [D.E. 32, ¶ 1] 

(“On November 30, 2021, JIM and EPM executed a Sponsorship Agreement.”). In 

response thereto, EPM does not dispute the parties’ execution of the Sponsorship 

Agreement. See [D.E. 39, ¶ 1] (responding to JIM’s corresponding Statement of 

Material Fact with “Admit to the extent that the referred to Exhibit speaks for 

itself.”). Furthermore, throughout EPM’s Counterclaim [D.E. 10] and own Motion 

for Summary Judgment [D.E. 35], EPM continuously cites to the existence of an 

agreement (i.e. the Sponsorship Agreement) for the purpose of alleging JIM’s 

breach thereof. See e.g., [D.E. 10, ¶ 11] (EPM stating that it agreed to enter into the 

Sponsorship Agreement). As such, the existence of an agreement (i.e. the 

Sponsorship Agreement) has been established between the parties.

• Via its Statement of Material Facts, JIM cites to the fact that at no time prior to 

JIM’s delivery of the Notice of Intent to Terminate has EPM ever provided JIM 

with written notice in accordance with the terms set forth in the Sponsorship 

Agreement, stating that JIM was and/or had committed a material breach of the 

Sponsorship Agreement. See [D.E. 32, ¶ 13]. This assertion is further supported by: 

(1) the Declaration of Matt Casto, see [D.E. 40-1, ¶¶ 24 – 25, 27], (2) the 

Declaration of Jesse Iwuji, see [D.E. 40-2, ¶¶ 14 – 18, 20 – 22] (each declaration 

citing to JIM’s performance of services claimed unperformed by EPM and/or 

EPM’s failure to provide written notice regarding any alleged breach), and (3) 

EPM’s failure to produce any evidence to support that it provided JIM with written 

notice of its breach of the Sponsorship Agreement prior to JIM’s delivery of its 

Notice of Intent to Terminate. As such, JIM has established that, (i) at all times 

relevant, JIM has performed under the Sponsorship Agreement, and/or (ii) EPM 

failed to provide written notice for the purpose of claiming any failure to perform 

by JIM of any term contained in the Sponsorship Agreement. 

• Via its Statement of Material Facts, JIM cites to EPM’s failure to make payment as 

required under the Sponsorship Agreement as EPM’s breach of the agreement. See

[D.E. 32, ¶¶ 9 – 12]. This assertion is further supported by: (1) the Declaration of 

Matt Casto, see [D.E. 40-1, ¶¶ 29 – 30, 33], and (2) the Declaration of Jesse Iwuji, 

see [D.E. 40-2, ¶¶ 24 – 25]. 

Notwithstanding, to the extent deemed necessary, JIM directs the Court to the 

Supplemental Declaration of Matt Casto, attached hereto, in support of its Motion for Summary 

Judgment. See, e.g., Branch Banking & Trust Company v. Weiser, 2013 WL 12093148, at *2 

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(holding that plaintiff is allowed to file a supplemental affidavit with its reply in support of its 

motion for summary judgment to rebut allegations raised in defendant’s response). 

c. The terms of the Sponsorship Agreement are clear and unambiguous. 

EPM’s Opposition further argues that JIM is not entitled to summary judgment, because 

“the terms of the Agreement are clear that Jesse Iwuji was to be sole and exclusive driver of the 

EPM sponsored races.” See [D.E. 38, pg. 10]. This, again, is a faulty statement. Nowhere within the 

Sponsorship Agreement or SOW attached thereto does it state that Jesse Iwuji is to be the sole and 

exclusive driver during the term of the Sponsorship Agreement. EPM’s Opposition states that the

terms of the Sponsorship Agreement are “clear.” Id. Furthermore, EPM repeatedly argues in its 

own Motion for Summary Judgment that the language of the Sponsorship Agreement is ”clear and 

unambiguous.” See, e.g., [D.E. 35, pg. 8]. 

“Under well-established principles of contract law, where the language of a contract is 

unambiguous, the legal effect of that language is a question of law.” Orkin Exterminating Co., Inc. 

v. F.T.C., 849 F.2d 1354, 1360 (11th Cir. 1988) (emphasis added). “If the language appearing in 

the written agreement is clear and unambiguous, the parties’ intent is to be discerned solely from 

the plain meaning of the words used.” Alliance Metals, Inc., of Atlanta v. Hinely Industries, Inc., 

222 F.3d 895, 901 (11th Cir. 2000) (emphasis added). 

As provided throughout JIM’s Motion for Summary Judgment – in addition to JIM’s 

Response to EPM’s Motion for Summary Judgment [see D.E. 42, pg. 4 – 9]1 – the plain language 

of the Sponsorship Agreement does not state, provide, or require in any respect that Jesse Iwuji 

serve as the sole and exclusive driver of JIM. EPM’s arguments in support of such claim are nonpersuasive in that not only does EPM miscite JIM’s obligations as plainly set forth in the SOW, 

1 For the purpose of brevity, JIM incorporates the arguments, accompanying memorandum of law, and exhibit 

citations set forth within JIM’s Response to EPM’s Motion for Summary Judgment. 

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but EPM also attempts to read language into the Sponsorship Agreement that simply does not exist. 

Because contract interpretation is a question of law appropriately decided on summary judgment 

(see Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir. 2011)), JIM disputing that the 

Sponsorship Agreement does not require Jesse Iwuji to drive in all of the EPM sponsored races 

does not raise a question a fact. Rather, the Court is tasked with interpreting the language of the 

Sponsorship Agreement to determine what it does and does not say in order to determine the intent 

of the parties. 

To such end, the Court is not allowed to review or analyze extrinsic (i.e. parol) evidence 

when interpreting the terms of the Sponsorship Agreement. See Orkin, 849 F. 2d at 1362 (“There 

is probably no better known rule of law than that which says that parol evidence may not be used 

to contradict the terms of an unambiguous contract.”); see also Saregama India Ltd. v. Mosley, 

635 F.3d 1284, 1290 (11th Cir. 2011) (when a contract is unambiguous, the parol evidence rule 

bars the Court’s consideration of extrinsic evidence). As such, EPM’s reliance on “negotiations” 

or other parol evidence referenced in its Opposition cannot be considered by the Court and is of 

no avail. 

EPM’s argument is additionally confusing in that later on its Response, EPM attempts to 

characterize the Sponsorship Agreement as an ambiguous document with multiple reasonable 

interpretations, despite its earlier assertion that the terms of the agreement are “clear.” 

Notwithstanding this blatantly contradictory position, whether a contractual ambiguity exists is 

also a question of law that may be resolved on summary judgment. See Orkin, 849 F. 2d at 1360. 

However, (i) “[a]n ambiguity in a contract cannot be created by the mere assertion of a party to 

it”; and (ii) the fact that the meaning of a contract term is disputed likewise reveals no ambiguity. 

Id. (citing Vreeland v. Federal Power Comm'n, 528 F.2d 1343, 1351 (5th Cir.1976)). 

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EPM’s sole argument for claiming ambiguity in the Sponsorship Agreement is that EPM 

says so. A plain reading of the Sponsorship Agreement specifically highlights the respective duties 

and obligations of the parties; not one such duty or obligation of JIM set forth in the Sponsorship 

Agreement or accompanying SOW requires Jesse Iwuji to be the sole and exclusive driver of JIM’s 

NASAR racing team during the term of the agreement. This fact is clearly evidenced from the 

plain meaning of the clear and unambiguous terms contained in the Sponsorship Agreement.

d. The remaining arguments contained in EPM’s Opposition are not supported 

by the facts, record, and/or applicable law.

Lastly, the remainder of EPM’s Opposition likewise fails to dispute JIM’s entitlement to 

summary judgment. Firstly, JIM’s Motion is not silent as to the damages incurred as a result of 

EPM’s breach. JIM’s Second Amended Complaint sets forth a one-count cause of action for breach 

of contract, for which the damages arising therefrom are quantifiable based upon the terms of the 

Sponsorship Agreement. JIM’s Motion for Summary Judgment specifically states EPM breached 

the Sponsorship Agreement by failing to make payment in accordance with its terms. See, e.g.,

[D.E. 33, pg. 1 – 4) (highlighting EPM’s payment obligations under the Sponsorship Agreement 

and breach thereof). 

Secondly, EPM’s claim that JIM failed to perform – thereby, excusing EPM from making 

further payments – are readily refuted and addressed within JIM’s Response to EPM’s Motion for 

Summary Judgment (see [D.E. 42, pg. 9 – 11]). Summarily, any claim that JIM failed to perform 

is defeated by: (i) EPM’s failure to perform its obligations as required under the Sponsorship 

Agreement (i.e. failure to propose dates to be mutually agreed upon for the performance of certain 

Services and/or Deliverables); (ii) lack of express language in the Sponsorship Agreement 

supporting any alleged breach (including, but not limited, lack of language requiring Jesse Iwuji 

to serve as JIM’s sole and exclusive driver); and/or (iii) EPM’s own actions acknowledging 

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performance of Services and/or Deliverables (including, without limitation, other individuals 

serving as driver for JIM’s NASCAR racing team).

Thirdly, EPM’s claim that Jesse Iwuji being the sole and exclusive driver was an essential 

term of the Sponsorship Agreement is directly addressed within JIM’s Response to EPM’s Motion 

for Summary Judgment. See [D.E. 42, pg. 11 – 13]). Summarily, Jesse Iwuji being the sole and 

exclusive driver for JIM’s NASCAR team cannot be considered an essential or material term, 

because (i) whether Jesse Iwuji or another driver drove for JIM did not affect JIM’s participation 

in races in which EPM served as primary sponsor, which JIM continued to participate in prior to 

the effective termination of the Sponsorship Agreement and thereafter (to the extent able in light 

of EPM’s failure to comply with the Sponsorship Agreement); and (ii) JIM still was able to ensure 

that Jesse Iwuji and/or other parties from which Services and/or Deliverables were secured still 

performed and/or were still available to perform such Services and/or Deliverables as required in 

accordance with the Sponsorship Agreement.

Lastly, EPM’s claim that JIM was provided with notice and opportunity to cure its breach 

is not supported by the record. Section 7(b) of the Sponsorship Agreement states, “Either Party 

may terminate the Agreement upon written notice to the other Party if such Party is in breach of 

any material provision of the Agreement and such breach is not cured within thirty (30) days after 

written notice thereof is received by the Party.” See Exhibit A to Second Amended Complaint, 

D.E. 7-1. EPM has failed to cite to or produce any evidence detailing EPM’s providing of written 

notice to JIM setting forth specific breaches of the Sponsorship Agreement and providing JIM 

thirty (30) days to cure such breach(es); EPM failed to do so, because it is unable to, as no such 

written notice or documented efforts exist. EPM’s failure to provide written notice as required 

under the Sponsorship Agreement does not create a genuine issue of material fact, but rather further 

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details EPM’s inability to properly interpret and/or otherwise comply with the clear and 

unambiguous terms set forth therein. 

II. Conclusion

WHEREFORE, for the reasons set forth herein, JIM respectfully requests that this 

Honorable Court grant JIM’s Motion for Summary Judgment, and such other relief as the Court 

deems just and appropriate. 

Dated: March 5, 2024 Respectfully submitted,

_/s/__Darren A. Heitner_______

Darren A. Heitner, Esq.

Heitner Legal, P.L.L.C.

215 Hendricks Isle

Fort Lauderdale, FL 33301

Tel.: 954-558-6999

Fax: 954-927-3333

Email: Darren@HeitnerLegal.com

Counsel for Plaintiff/Counter-Defendant

CERTIFICATE OF SERVICE

I hereby certify that on March 5, 2024 a copy of the foregoing document was filed 

electronically via the Court’s Electronic Case Filing System and thereby served upon all counsel 

of record.

_/s/__Darren A. Heitner_______

Darren A. Heitner, Esq.

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