UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

AARON MACGREGOR & ASSOCIATES, 

LLC and FUTURE INTERNATIONAL, 

LLC,

Plaintiffs,

v.

ZHEJIANG JINFEI KAIDA WHEELS CO., 

LTD., FUTURE INDUSTRIAL & 

TRADING, INC., and GE BINGZAO,

Defendants.

CASE NO.: 3:15-cv-00254-MGG

ZHEJIANG JINFEI KAIDA WHEELS CO., 

LTD., 

Counter-claimant/

Third-Party Plaintiff, 

v. 

AARON, MACGREGOR & ASSOCIATES, 

LLC, 

Counter-defendant,

and 

AARON ZOU,

Third-Party Defendant.

OPINION AND ORDER
2

This case stems from a business relationship gone bad in the world of vehicle 

parts sales. Aaron Zou (“Zou”), president and founder of Aaron, MacGregor & 

Associates, LLC (“AMA”), met the Chairman of Zhejiang Jinfei Kaida Wheels Co., Ltd. 

(“Jinfei”), Bingzao Ge (“Ge”), on a trip to China in 2011 for a business conference. Zou 

and Ge began discussions that continued after Zou returned to Indiana about forming a 

new company in Elkhart through which AMA could assist Jinfei as it expanded into the 

recreational vehicle market in Elkhart. The two companies executed agreements to 

govern their new business relationship. Jinfei sought approval from the Chinese 

government to invest in the new American company. Zou hosted Jinfei employees in 

Indiana and facilitated meetings between Jinfei and prospective American clients.

Ultimately, things went south and the AMA-Jinfei relationship, as embodied in 

the creation of Future International, LLC (“Future International”), deteriorated. Jinfei 

decided to launch a separate business entity for its work, Future Industrial & Trading, 

Inc. (“FIT”). AMA and Zou claim Jinfei employed subterfuge to circumvent the parties’ 

contractual relationship related to Future International while Defendants allege Zou 

misrepresented what he and AMA could do on Jinfei’s behalf in Indiana before the 

contracts were executed. Through competing claims in this lawsuit, the parties allege 

damages arising from the demise of the business relationship that started with Zou and 

Ge’s introduction at that 2011 business conference in China.

Now the Court has been presented with two motions for partial summary 

judgment, filed within a day of each other at the end of December 2017, that seek to 

eliminate all but the primary breach of contract claims between the parties. In their 
3

motion filed on December 28, 2017, Counterdefendant AMA and Third-Party 

Defendant Zou ask the Court to grant summary judgment as to all counterclaims by 

Jinfei. [DE 69]. Specifically, AMA and Zou challenge Jinfei’s counterclaims of breach of 

fiduciary duty against AMA only and unjust enrichment, conversion, fraud against 

AMA and Zou. Through their motion filed on December 29, 2017, Defendants Jinfei, 

FIT, and Ge, seek summary judgment on Plaintiffs AMA’s and Future International’s

claims of unjust enrichment; unfair competition under state and federal law; federal 

trademark infringement and false designation of origin; as well as all claims against Ge. 

[DE 73].

These are not clean motions for summary judgment, however. This case has been 

contentious throughout as evidenced by Defendants’ previous motion for sanctions

under Fed. R. Civ. P. 11, 28 U.S.C. § 1927, and the Court’s inherent authority to manage 

its docket (“the Original Motion for Sanctions”), alleging that Plaintiffs had not 

conducted reasonable pre-complaint inquiry into their claims. The Court denied 

Plaintiffs’ Original Motion for Sanctions without prejudice on October 30, 2017. [DE 64].

However, the parties’ frustrations with each other did not subside as became clear 

through two motions filed within two days of the motions for summary judgment, both 

of which arguably seek to punish the nonmovants for their approach to this litigation. 

First, Defendants renewed their motion for sanctions (“the Renewed Motion for 

Sanctions”), seeking once again dismissal of all Plaintiffs’ claims with prejudice citing 

additional evidence in support of allegation that Plaintiffs did not conduct reasonable 

pre-complaint inquiry into their claims. [DE 72]. Second, Plaintiffs filed a motion to 
4

compel seeking (1) complete discovery responses from Defendants related to requests 

made in 2016; (2) additional discovery related to the key issue of “use in commerce” on 

Plaintiffs’ federal trademark infringement and false designation of original claim to 

support their opposition to Defendants’ motion for summary judgment; and (3) 

discovery of Defendants’ computers not ever requested before. [DE 75]. 

Lastly, Defendants have filed multiple objections to evidence Plaintiffs submitted 

in support of the Renewed Motion for Sanctions and the two motions for summary 

judgment. [DE 85, 90, 92, 98]. The Court heard oral argument on all these outstanding 

matters on April 26, 2018. The undersigned now issues the following opinion and order

with jurisdiction conferred by the consent of the parties and 28 U.S.C. § 636(c). 

I. RELEVANT BACKGROUND

A. Factual Background

As part of their joint efforts to sell vehicle parts in Indiana, AMA and Jinfei 

agreed to form Future International. In December 2011, Zou, on behalf of AMA, 

registered Future International as an LLC with the State of Indiana. Three contracts 

were executed between AMA and Jinfei to govern the funding, development, and 

management of Future International.

The first two contracts1, executed on February 26, 2012, (“the February 2012 

Contracts”) provided that AMA and Jinfei would both invest money to form Future 

 1 The parties label these contracts, written in Chinese, differently. [See DE 33 at 5]. AMA and Zou call 

them the Investment Contract [DE 69-3] and the Consultation Contract [DE 69-4], while Jinfei refers to 

them as a Letter of Intent and an Agreement [DE 91 at 9, ¶ 3]. The Court need not resolve the parties’ 

dispute over the translation of these document titles at this time.
5

International, an Indiana business entity that would purchase automotive parts from 

Jinfei for resale to American customers. The contracts more specifically provided that 

Jinfei would invest 90% of the funds in the amount of $270,000, while AMA would 

invest 10% of the funds in the amount of $30,000. The contracts also divided profits 90% 

to Jinfei and 10% to AMA. 

In the contracts, AMA agreed to use his legal, tax, and business expertise in the 

American RV and automotive industries to help Jinfei’s Chinese representatives build a 

warehouse for its products and conduct and solicit business in the United States. AMA 

was expected to lease a vehicle and an apartment as well for the Jinfei’s representatives 

to use while visiting from China. In return, Jinfei agreed to fund the leases and to 

participate jointly with AMA in meetings with prospective American customers. The 

parties agreed that any results of their joint efforts would become the property of 

Future International.

Both AMA and Jinfei took steps to develop Future International. AMA facilitated 

the leases of the vehicle and apartment. Jinfei provided AMA with $30,000 for that 

purpose. Jinfei expended time and resources seeking Chinese approval of their 

investment in Future International. Yet by October 2012, neither company had invested 

in Future International. AMA chose not to invest before Jinfei did and Jinfei was 

waiting to invest until it received approval from the Chinese government. By October 

2012, Jinfei had repeatedly told AMA that the approval had not yet been granted.

Therefore, AMA and Jinfei executed a new contract in October 2012 changing the 

parameters of their business relationship. The October 2012 Contract provided that 
6

AMA would transfer its 10% ownership in Future International to Jinfei while Jinfei 

would pay a consulting fee to AMA to compensate for its work for Future International 

back to February 2012. Jinfei also agreed to pay AMA a monthly consulting fee through 

November 2013. At the same time and at Jinfei’s request, AMA canceled the apartment 

lease but maintained the vehicle lease for Jinfei. Yet AMA never transferred its 

ownership in Future International to Jinfei and Jinfei allegedly never paid AMA the 

consulting fees.

However, on January 31, 2013, Jinfei and Ge registered FIT as a corporation 

without AMA’s knowledge. Through the complaint in this action filed in 2015, AMA 

and Future International allege that FIT is still operating and retaining all the profits 

generated as the result of AMA’s work with Jinfei for Future International. The 

operative amended complaint includes claims for breach of the three contracts, breach 

of fiduciary duty, unjust enrichment, unfair competition, and trademark infringement. 

Jurisdiction for this action arises from 28 U.S.C. § 1331 and AMA and Future 

International’s Lanham Act (15 U.S.C. § 1051 et seq.) claim for federal trademark 

infringement.

II. ANALYSIS

A. Defendants’ Evidentiary Objections

As a preliminary matter, Defendants filed objections to assorted evidence 

Plaintiffs submitted in support of the instant motions. Despite Defendants’ multiple 

objections, the Court only needed to rely upon one piece of evidence that Defendants’ 

challenged—Zou’s Affidavit about how he spent the $30,000 Jinfei wired to AMA and 
7

whether he or AMA received any benefit from the $30,000—to resolve the relevant 

motions. [See DE 92 at 3 (citing DE 69-2 at ¶¶ 32–33)]. As to Zou’s Affidavit, Defendants 

argue that Zou is making improper legal conclusions about the definition of the term 

“benefit” in connection with various claims in this action. Additionally, Defendants 

contend that Zou’s accompanying chart of expenditures lacks foundation because the 

chart is not the best evidence of the alleged use of monies and Jinfei disputes whether 

Zou actually spent the money as he claims.

Defendants’ grounds for objection are not enough to justify exclusion of these 

statements in Zou’s Affidavit in consideration of AMA and Zou’s motion for partial 

summary judgment. First, Defendants cite only to Fed. R. Evid. 701/702 in support of 

their objection of improper legal opinion without directing the Court to any further 

interpretation to show that the term “benefit” in the relevant claims requires a legal 

conclusion. Second, Mr. Zou is allowed to testify by affidavit as to his personal 

knowledge about expenditures and the concept of benefit. Third, AMA and Zou did 

present documentation related to the apartment and vehicle leases. And lastly, any 

dispute as to Zou’s actual expenditures was not supported with any evidence from 

Jinfei. Thus, the Court is not persuaded that Zou’s Affidavit statements should be 

excluded from consideration.

The remaining objections have no effect on the outcome of the motions below 

and need not be considered. Accordingly, the Court OVERRULES all of Defendants’ 

evidentiary objections. [DE 85, 90, 92, 98].
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B. Defendants Jinfei, FIT, and Ge’s Renewed Motion for Sanctions

The Court can also dispense quickly with Defendants’ Renewed Motion for 

Sanctions. Defendants’ instant motion, filed on December 29, 2017 [DE 72], requests the 

same relief that this Court denied without prejudice in an order dated October 30, 2017

(“the October 2017 Order”) [DE 64]. The Court need not repeat the substance of that 

order in full. Yet as relevant here, parties filing a motion for Rule 11 sanctions must 

make a prima facie showing of sanctionable conduct based on non-frivolous allegations. 

Vandeventer v. Wabash Nat’l Corp., 893 F. Supp. 827, 840 (N.D. Ind. 1995) (citing Shrock v. 

Altru Nurses Registry, 810 F.2d 658 (7th Cir. 1987). Once the prima facie showing is made, 

“the burden of proof shifts to the non-movant to show it made a reasonable pre-suit 

inquiry into its claim.” Digeo, Inc. v. Audible, Inc., 505 F.3d 1362, 1368 (Fed. Cir. 2007). In 

applying this two-step analysis, the Court found that neither Defendants nor Plaintiffs 

met their respective burdens. [DE 64 at 12]. First, the Court found “Defendants’ 

allegations of Rule 11 sanctionable misconduct to be unreasonable, and therefore, 

frivolous making them insufficient to establish a prima facie case of sanctionable 

conduct.” [Id. at 11]. The Court then found “nothing in the record describing Plaintiffs’ 

pre-filing investigation” of the claims in their complaint and consequently stated that 

Plaintiffs had not met their burden to show reasonable pre-complaint inquiry into their 

claims. [Id. at 12].

Here in their Renewed Motion for Sanctions, Defendants once again ask the 

Court to dismiss with prejudice any and all claims in the First Amended Complaint and 

to award them monetary sanctions in the form of reasonable attorney fees incurred in 
9

this action since removal to this Court. [DE 72 at 2]. In support, Defendants merely 

attach, without explanation, excerpts from the deposition testimony of Mr. Zou, both in 

his individual capacity and as a Rule 30(b)(6) deponent for AMA. Defendants then 

baldly assert that “Mr. Zou’s deposition testimony supports, and confirms, the grounds 

under which Defendant brought the original motion. (See Dkt. 60, 61, and 63).” [Id.]. In 

so doing, Defendants successfully incorporate the briefing on their original motion for 

sanctions, but fail to specify exactly what parts of the excerpts of Mr. Zou’s deposition 

testimony they are relying upon or which arguments from the original briefing are 

confirmed by the same deposition testimony.

As a result, Defendants have left Plaintiffs and this Court unclear as to how the 

additional evidence of Mr. Zou’s deposition testimony should change the outcome of

the Court’s Rule 11 sanctions analysis in its October 2017 Order. Defendants seem to 

expect both Plaintiffs and this Court to study the deposition excerpts and their previous 

briefing and infer the effect of the additional evidence on their arguments. This is not 

the Court’s job. Indeed, “[j]udges are not like pigs, hunting for truffles buried in [the 

record].” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991); see also Friend v. Valley 

View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 711 (7th Cir. 2015) (“[The court is] not 

required to scour through . . . deposition transcript[s] in order to verify an assortment of 

facts, each of which could be located anywhere within the . . . depositions cited.”); 

Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1001 (7th Cir. 2004) (“[The court]

will not root through the hundreds of documents and thousands of pages that make up 

the record here to make his case for him.”). As such, the Court sees nothing new in the 
10

record that would change its previous conclusion that Defendants have not met their 

burden to make a prima facie showing of sanctionable conduct based on non-frivolous 

allegations, thus still precluding sanctions.

The Court acknowledges that Defendants present arguments in their reply brief 

related to the Renewed Motion that rely upon Mr. Zou’s deposition testimony. 

However, Defendants’ arguments in their reply brief still fail to show a prima facie case 

of sanctionable conduct based upon non-frivolous allegations. Defendants rely on Mr. 

Zou’s deposition testimony as uncontroverted evidence that contradicts Plaintiffs’ claim 

in its trademark infringement and unfair competition claims that the Future 

International and FIT marks were used in commerce. Again, Defendants’ arguments 

comment on the substantive merit of Plaintiffs’ claims in light of evidence acquired 

during discovery rather than showing unreasonable pre-complaint inquiry into the 

claims. [See DE 64 at 11]. 

In the end, the mere addition of Mr. Zou’s deposition testimony to the record did 

not—and could not—help Defendants satisfy their burden under Rule 11 standards 

even if they had not waived such arguments by failing to develop any arguments in 

their Renewed Motion. Therefore, the Court DENIES Defendants’ Renewed Motion for 

Sanctions. [DE 72]. 

Lastly, Defendants filed their Renewed Motion for Sanctions with a complete 

understanding of the Court’s Rule 11(b)(2) analysis of Plaintiffs’ pre-complaint inquiry

as presented in the October 2017 Order. Therefore, Defendants’ Renewed Motion 

appears frivolous as they had insight from which to anticipate accurately the Court’s 
11

approach to the “new” evidence included with the Renewed Motion. Moreover, 

Defendants’ counsel would have—or at least should have—understood the effect of 

failing to specify evidence and argument in their Renewed Motion. In light of these two 

realities, Defendants and their counsel have also caused the Court to question whether 

they violated Fed. R. Civ. P. 11(a) by filing the Renewed Motion. Accordingly, the Court 

invokes Fed. R. Civ. P. 11(c)(3) and ORDERS Defendants’ counsel to show cause by 

June 29, 2018, why the Court should not find that the renewed motion for sanctions was 

presented for an improper purpose as prohibited under Fed. R. Civ. P. 11(b)(1) and 

should not impose monetary sanctions accordingly.

C. Plaintiffs’ AMA and Future International’s Motion to Compel

Plaintiffs’ Motion to Compel Discovery and Enforce the Court’s October 30, 2017 

Order filed on December 30, 2017, is not persuasive either even after review in light of 

the standards of both Fed. R. Civ. P. 37 related to discovery and Fed. R. Civ. P. 56(d)

related to summary judgment.

1. Relevant Background

The instant discovery dispute grew largely out of Request 1-1 in Plaintiffs’ First 

Request for Production of Documents served on Jinfei on July 13, 2016. Request 1-1 

sought “all Communications and Documents exchanged between [Defendants] and any 

third party relating to or discussing the sale or potential sale of any automobile parts in 

Indiana.” [DE 75-1 at 4, Document Request 1-1]. Premised on AMA’s belief that Jinfei 

had no presence in Indiana before it began working with AMA, Request 1-1 was 
12

designed to elicit evidence from Jinfei showing that AMA was entitled to a portion of 

the profits resulting from Jinfei’s and FIT’s business in Indiana.

On October 30, 2016, Jinfei provided responses to Plaintiffs’ document requests, 

but Plaintiffs found them deficient. Based on AMA’s belief that more information 

existed as to third party companies, Plaintiffs served non-party requests for production 

of documents on three companies doing business with Jinfei and with whom AMA had 

a previous relationship. Despite Jinfei’s objections to all three non-party subpoenas, two 

of the companies—Tredit Tire & Wheel Co. and Lionshead Specialty Tire & Wheel, 

LLC—produced a large number of documents related to Request 1-1 in December 2016 

that Plaintiffs thought Jinfei should have produced themselves.

With Tredit’s and Lionshead’s documents in hand, Plaintiffs began a series of 

communications with Jinfei seeking supplemental responses to Request 1-1. On January 

23, 2017, Plaintiffs first requested the supplemental responses. On February 3, 2017, 

Jinfei requested that Plaintiffs produce the Tredit and Lionshead documents first. Jinfei

also argued that the non-party information Plaintiffs sought was not all relevant 

because some of the customer meetings occurred before the parties signed the February 

2012 contracts. Jinfei had especially objected to producing documents evidencing their 

relationship with the third non-party Plaintiffs had subpoenaed, Americana 

Development, Inc., because Jinfei and Americana had a business relationship before 

Jinfei and AMA began working together such that AMA could not have introduced 

Jinfei to Americana. Plaintiffs responded by letter on March 30, 2017, explaining why 
13

they believed all the requested non-party information to be relevant under the 

standards of Fed. R. Civ. P. 26.

On April 6, 2017, before Jinfei had produced any of the supplemental responses, 

Americana produced hundreds of pages of documents regarding its business 

relationship with Jinfei back to 2012. On April 21, 2017, Jinfei served its supplemental 

responses on Plaintiffs including documents dating back to 2011 related to its business 

relationships with Tredit and Lionshead, but nothing reflective of the relationship with 

Americana. On the same day, Plaintiffs provided Defendants with all documents they 

had received from Tredit, Lionshead, and Americana. Plaintiffs sent three additional 

letters to Jinfei about the outstanding responses to Request 1-1 on April 21, April 28, 

and May 2, 2017.

With the dispute over Request 1-1 unresolved, Defendants filed their Original 

Motion for Sanctions. Plaintiffs’ response brief included references to their ongoing 

dissatisfaction with Jinfei’s responses to Request 1-1. The Court resolved the Original 

Motion by order dated October 30, 2017. In addition to addressing the sanctions issue 

raised in Defendants’ Original Motion, the Court ordered all parties to supplement all 

existing discovery responses by November 6, 2017. Before the Court issued its order, 

however, the parties had scheduled the depositions of AMA and Zou for November 16, 

2017, and of Jinfei and FIT, on November 17, 2017.

None of the parties filed a supplemental response by the November 6th deadline. 

Yet on the night of November 15th, less than a day before the scheduled depositions 

were set to begin, Jinfei served some supplemental responses, including a 4-page 
14

spreadsheet of sales figures relevant to Request 1-1, on Plaintiffs. Jinfei located the 

documents for the first time after November 6th while preparing for its deposition. 

Jinfei did not, however, produce any Americana documents.

The depositions proceeded as scheduled. As relevant here, Zou testified that 

Jinfei had arranged the meeting he attended with Americana unlike many, or possibly 

all, of the other customer meetings where Zou and AMA had initiated meetings with 

Jinfei. Additionally, Plaintiffs’ counsel did not review the spreadsheet Jinfei had 

produced on November 15th before deposing its Rule 30(b)(6) witness, its Deputy 

General Manager, Hongxing (Kevin) Ren, on November 17th. As a result, Plaintiffs’ 

counsel did not ask Ren about the newly produced information. Jinfei then

supplemented its discovery responses again on November 21, 2017, with Jinfei’s 

application to the Chinese government for permission to invest in FIT, a document that 

had not been located due to some confusion about a cover sheet that was resolved at 

Ren’s deposition.

The deadline for the close of all discovery passed on November 28, 2017. On 

December 6, 2017, Plaintiffs sent another letter to Defendants outlining their continuing 

dissatisfaction with Defendants’ conduct during discovery. Specifically, Plaintiffs noted 

Jinfei’s failure to produce any documents related to Jinfei’s relationship with 

Americana, Defendants failure to comply with the Court’s order for supplemental 

discovery by November 6th, Jinfei’s late production of its 2012 application to invest in 

FIT, and Ren’s allegedly evasive answers at his deposition making him an absent 

witness. Plaintiffs concluded proposing that the discovery deadline be extended to 
15

allow for further production of documents, Ren’s deposition be reconvened, and Jinfei 

produce mirror images of Defendants’ computers. On December 20, 2017, Defendants 

wrote a letter to Plaintiffs rejecting their requests.

On December 29, 2017, Defendants filed their motion for partial summary 

judgment on, among other things, Plaintiffs’ federal trademark infringement claim. 

Plaintiffs filed their instant motion to compel on December 30, 2017, asking the Court to 

issue an order compelling Defendants “(1) to produce a ‘mirror image’ copy of the hard 

drives of all Jinfei computers used by Mr. Ren and Mr. Ge from 2011-2016” for 

Plaintiffs’ inspection; “(2) to produce any and all documents . . . reflecting a business 

relationship between Jinfei and Americana; (3) permit Plaintiffs to reconvene the 

deposition of Mr. Ren; (4) pay Plaintiffs’ fees and other expenses; and (5) all other just 

and proper relief.” [DE 75 at 3]. In their response to Defendants’ motion for summary 

judgment on January 23, 2018, Plaintiffs then incorporated the instant motion to compel 

as part of its argument for further discovery under Fed. R. Civ. P. 56(d) as to their 

trademark infringement claim and all claims alleged against Ge. [DE 87 at 7]. Notably, 

Plaintiffs presented no substantive arguments against summary judgment on these 

claims.

2. Analysis

Plaintiffs argue that additional discovery should be allowed under both Fed. R. 

Civ. P. 37 and Fed. R. Civ. P. 56(d). The Court is not persuaded under either standard.
16

a. Rule 37 Motion to Compel

Motions to compel under Rule 37 are premised on the general discovery rules, 

which allow discovery into

any nonprivileged matter that is relevant to any party’s claim or defense 

and proportional to the needs of the case, considering the importance of 

the issues at stake in the action, the amount in controversy, the parties’ 

relative access to relevant information, the parties’ resources, the 

importance of the discovery in resolving the issues, and whether the 

burden or expense of the proposed discovery outweighs its likely benefit. 

Fed. R. Civ. P. 26(b)(1). This Court has broad discretion in deciding whether to compel 

discovery and may deny discovery to protect a party from oppression or undue burden. 

Fed. R. Civ. P. 26(c); Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998); Gile v. 

United Airlines, Inc., 95 F.3d 492, 495-96 (7th Cir. 1996). When ruling on a motion to 

compel, “a district court should independently determine the proper course of 

discovery based upon the arguments of the parties.” Gile 95 F.3d at 496. A party 

objecting to discovery retains the burden to show why the discovery request is 

improper. U.S. v. 58.16 Acres of Land, more or less in Clinton Cty., State of Ill., 66 F.R.D. 570, 

572–73 (E.D. Ill. 1975).

Here, Plaintiffs filed the instant motion to compel based on contentions that 

Defendants failed to produce all documents, specifically the Americana documents,

requested in Request 1-1; failed to produce a 30(b)(6) witness capable of addressing the 

noticed topics; and failed to timely supplement their discovery responses as ordered by 

this Court on October 30, 2017. See Fed. R. Civ. P. 37(a)(3)(B)(iv); (a)(4); (b); (c). As to the 

Americana documents, Plaintiffs say they are relevant to the calculation of their 
17

damages premised on sales generated by Jinfei’s business resulting from AMA and 

Zou’s introductions. Yet Zou testified that he did not introduce Jinfei to Americana 

bringing into question, if not eliminating, the possibility that Plaintiffs played any role 

at all in the profits generated through Jinfei and Americana’s business relationship. As 

such, the relevance of the Americana documents to Plaintiffs’ contract damages is 

questionable at best. Moreover, Plaintiffs already possess hundreds of Americana 

documents produced by Americana itself. Comparing Jinfei’s production to 

Americana’s for completeness is not a sufficient reason at this late stage of litigation to 

reopen discovery.

As to Ren’s deposition, Plaintiffs’ assertion that he was evasive in his answers or 

otherwise unprepared to address noticed topics must be balanced against other facts. 

First, the deposition transcript shows that Plaintiffs’ counsel did not ask Ren questions 

about most of the non-party documents in its possession, including the Americana 

documents. Second, Plaintiffs’ counsel had time to review the four-page spreadsheet 

produced right before the depositions, but did not. And third, Plaintiff merely 

speculates without support that Ren had or should have had information Plaintiffs 

want. Additionally, a Rule 30(b)(6) witness is not unqualified if he cannot remember 

everything or is not completely knowledgeable about every question asked. E.E.O.C. v. 

Celadon Trucking Servs., Inc., No. 1:12-CV-275-SEB-TAB, 2013 WL 5915206, at *1 (S.D. 

Ind. Nov. 1, 2013).

As to the Court’s order dated October 30, 2017, there is no dispute that neither 

Defendants nor Plaintiffs served any supplemental discovery responses by the Court’s 
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November 6th deadline. Yet parties cannot produce what they do not have. Here, 

Defendants produced what they found as soon as they found it. While the dates on 

Defendants’ documents produced later in November 2017 suggest that they should 

have known they existed long before they were produced, Defendants have reasonably 

explained challenges that prevented the documents from being identified sooner. 

Moreover, Plaintiffs have produced no evidence of bad faith by Defendants.

Most importantly, Plaintiffs have not demonstrated any undue prejudice arising 

from these discovery issues. In fact, Plaintiffs’ counsel ended Ren’s deposition earlier 

than required and did not inquire about some of the arguably relevant documents 

Defendants had produced before the deposition. Plaintiffs even waited until after the 

close of discovery and the filing of two motions for summary judgment before seeking 

the Court’s assistance on a discovery dispute brewing since the fall of 2016. Cf. Murata 

Mfg. Co. v. Bel Fuse, Inc., 242 F.R.D. 470, 475 (N.D. Ill. 2007) (“[M]otions to compel filed 

after the close of discovery are almost always deemed untimely.”) (citing Packman v. 

Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001)). Accordingly, Plaintiffs have 

contributed to any predicament they sense. 

Plaintiffs also seek to increase unnecessarily the time and costs of discovery by 

requesting, for the first time, the creation of mirror images of Ren’s and Ge’s computers. 

Such a request would likely have been deemed unduly burdensome even if raised at the 

beginning of litigation given the international concerns this type of request presents, the 

overly broad disclosure of unrelated Jinfei information it would require, and the high, if

not prohibitive, costs to all parties of reviewing and organizing the information on the 
19

computers. As a result, reopening discovery at this time would be both unduly 

burdensome and disproportional to the needs of the case.

b. Rule 56(d) Request of Discovery

Under Fed. R. Civ. P. 56(d), the court may delay ruling on a motion for summary 

judgment if the non-movant can “affirmatively demonstrate[e] why [it] cannot respond 

to a movant’s affidavits . . . and how postponement of a ruling on the motion will 

enable [it], by discovery or other means, to rebut the movant’s showing of the absence 

of a genuine issue of fact.” Korf v. Ball State Univ., 726 F.2d 1222, 1230 (7th Cir. 1984)

(quotations omitted). “A party seeking the protection of [Rule 56(d)] must make a good 

faith showing that it cannot respond to the movant’s affidavits.” Kalis v. ColgatePalmolive Co., 231 F.3d 1049, 1058 (7th Cir. 2000). The non-movant must also identify the 

material facts that he anticipates discovery. See Grundstad v. Ritt, 166 F.3d 867, 873 (7th 

Cir. 1999) (“A party . . . may not use [Rule 56(d)] to gain a continuance where he has 

made only vague assertions that further discovery would develop genuine issues of 

material fact.” (quotations omitted)).

Through his Affidavit dated January 22, 2018, Plaintiffs’ counsel states that 

“Plaintiffs are unable to present facts essential to justify its opposition to Defendants’ 

Motion for Summary Judgment as to Count VII: Federal Trademark Infringement and 

False Designation of Origin and as to all counts and claims against Defendant Bingzao 

Ge.” [DE 87-1 at 3, ¶ 3]. By invoking Plaintiffs’ instant motion to compel, Plaintiffs’ 

counsel avers that Defendants are responsible for Plaintiffs’ inability to defend against 

summary judgment on these matters because of their alleged “withhold first, product 
20

later if caught” approach to discovery. While Plaintiffs’ counsel’s Affidavit recites the 

language of Rule 56(d), neither the Affidavit nor Plaintiffs’ briefing of either the motion 

to compel or the motion for summary judgment provide the substantive support 

necessary to justify delaying resolution of Defendants’ motion for summary judgment.

First, Plaintiffs have not demonstrated good cause for their counsel’s decisions 

not to review the relevant four-page spreadsheet before Ren’s deposition, not to pursue 

the “use in commerce” issue relevant to Plaintiffs’ trademark infringement claim at 

Ren’s deposition, and not to seek the Court’s assistance on this critical discovery issue 

before the close of discovery or before motions for summary judgment were filed. As 

such, the Court is not persuaded that they were precluded from gathering facts to 

justify opposition to Defendants’ motion for summary judgment.

Second, Plaintiffs suggest that the undisclosed Americana documents could 

include facts showing to show use in commerce of the Future International or Future 

Industrial marks as required to show trademark infringement. Similarly, Plaintiffs 

contend that Jinfei’s internal emails could include facts relevant to use in commerce. Yet 

Plaintiffs already have a considerable number of Americana documents in hand and 

have not presented any “use in commerce” facts from those documents. Moreover, Both 

Ren and Zou testified at their depositions that neither Future International nor FIT ever 

engaged in business, suggesting that both companies are essentially shells without 

assets, employees, or customers.

Plaintiffs seem to be searching for a “smoking gun” on an issue that could have 

and should have been a central focus of discovery much sooner. Additionally, a 
21

reasonable jury could, and likely would, rely on other evidence in the record, namely 

Zou’s own testimony, to overcome Plaintiffs’ “use in commerce” argument. Thus, the 

Court is not persuaded that the additional discovery Plaintiffs seek will give rise to a 

genuine dispute of material fact.

3. Conclusion

Upon consideration of both the Fed. R. Civ. P. 37 and Fed. R. Civ. P. 56(d)

standards, the Court DENIES Plaintiffs’ motion to compel. [DE 75]. Discovery remains 

closed as of November 28, 2017. The Court will proceed to address the pending motions 

for summary judgment. No award of costs, including attorney fees, for the instant 

motion to compel is granted. The parties shall bear their own costs.

D. Motions for Summary Judgment

Summary judgment is appropriate when the “pleadings, the discovery and 

disclosure materials on file, and any affidavits show that there is no genuine issue as to 

any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. 

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A genuine issue of material fact 

exists when “the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only 

disputes over facts that might affect the outcome of the suit under the governing law 

will properly preclude the entry of summary judgment.” Id. To determine whether a 

genuine issue of material fact exists, the court must review the record, construing all 

facts in the light most favorable to the nonmoving party and drawing all reasonable 

inferences in that party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003).
22

To overcome a motion for summary judgment, the nonmoving party cannot rest 

on the mere allegations or denials contained in its pleadings. Rather, the nonmoving 

party must present sufficient evidence to show the existence of each element of its case 

on which it will bear the burden at trial. Celotex, 477 U.S. at 322–23; Robin v. Espo Eng’g 

Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). Where a factual record taken as a whole could 

not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue 

for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 

574, 587 (1986). In other words, “[s]ummary judgment is not a dress rehearsal or 

practice run; it is the put up or shut up moment in a lawsuit, when a party must show 

what evidence it has that would convince a trier of fact to accept its version of the 

events.” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (quotations 

omitted); see also Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).

1. Defendants’ Motion for Partial Summary Judgment

As mentioned above, Defendants, Jinfei, FIT, and Ge, seek summary judgment 

on some of Plaintiffs’ claims, specifically (1) Count V, unjust enrichment against Jinfei 

only; (2) Count VI, unfair competition under state and federal law against Jinfei, FIT 

and Ge; and (3) Count VII, trademark infringement and false designation of origin

against Jinfei, FIT, and Ge.

a. Trademark Infringement and Unfair Competition against 

Jinfei, FIT, and Ge

To succeed on a trademark infringement claim under Section 43(a) of the 

Lanham Act, 15 U.S.C. § 1125(a), plaintiffs must demonstrate that: “(1) the [] marks 
23

[they assert] are protectable; (2) Defendants have used the marks in commerce; and (3) 

their use of the term is likely to cause confusion.” Kastanis v. Eggstacy LLC, 752 F. Supp. 

2d 842, 848 (N.D. Ill. 2010) (citing Ty Inc. v. Jones Group Inc., 237 F.3d 891, 897 (7tfh Cir. 

2001)); see also 15 U.S.C. § 1114 (Lanham Act trademark infringement). To show that an 

unregistered mark, like Future International, is protectable, a plaintiff must establish the 

first actual use of the mark in commerce. Purepecha Enters., Inc. v. El Matador Spices & 

Dry Chiles, No. 11 C 2569, 2012 WL 3686776, at *9 (N.D. Ill. Aug. 24, 2012) (citations 

omitted). As such, the key to Plaintiffs’ infringement and false designation of origin 

claim under the Lanham Act is Plaintiffs’ actual use in commerce of the Future 

International mark and Defendants’ actual use in commerce of the FIT mark. 

Defendants argue that summary judgment is warranted because Plaintiffs have 

not presented any evidence that the Future International or FIT marks were ever used 

in commerce. In response, Plaintiffs say nothing about the quantity or quality of 

evidence they have on the issue of “use in commerce.” Instead, Plaintiffs ask the Court 

to allow further discovery under Fed. R. Civ. P. 56(d)—a request the Court denied 

above. Moreover, Zou testified at his deposition that Future International has never 

done business, including selling or transporting goods or rendering services as required 

under the Lanham Act to establish use in commerce. See 15 U.S.C. § 1127. Similarly, Ren 

testified that the FIT mark had never been used. Therefore, Plaintiffs have not

established (and based on this record, cannot establish) a genuine dispute of material 

fact as to use in commerce entitling Defendants to judgment as a matter of law on 
24

Plaintiffs’ trademark infringement and false designation of origin claim under the 

Lanham Act.

The “use in commerce” element is also essential in the analysis of Plaintiffs’

trademark infringement claim under the Indiana Trademark statute and their unfair 

competition claims.2 See Heckler Koch, Inc. v. German Sport Guns GmbH, 71 F. Supp. 3d 

866, 924 (S.D. Ind. 2014) (citing Ind. Code § 24-2-1-13(1)); Fortres Grand Corp. v. Warner 

Bros. Entm’t Inc., 947 F. Supp. 2d 922, 926 (N.D. Ind. 2013), aff’d, 763 F.3d 696 (7th Cir. 

2014) (“[I]t is well established that [trademark] infringement, federal unfair competition, 

and state unfair competition . . . are analyzed under the same trademark infringement 

analysis.”). As a result, Plaintiffs’ failure to present evidence to show a genuine dispute 

of material fact as to the use in commerce of the Future International or FIT marks also 

dooms any state law trademark claim and any unfair competition claim at the federal or 

state level. Notably, Plaintiffs’ state law trademark infringement claim also fails because 

the Future International mark is not registered with the State of Indiana as required 

under Ind. Code § 24-2-1-13(1).

 2 Indeed, “any conduct, the natural and probable tendency and effect of which is to deceive the public so 

as to pass off the goods or business of one person as and for that of another, constitutes actionable unfair 

competition.” Hartzler v. Goshen Churn & Ladder Co., 104 N.E. 34, 37 (Ind. App. 1914). Consistent with the

Hartzler definition of unfair competition, “federal courts have interpreted Indiana’s law on unfair 

competition as an attempt to create confusion as to the source of the unfair competitor’s goods.” Hammons 

Mobile Homes, Inc. v. Laser Mobile Home Transp., Inc., 501 N.E.2d 458, 461 (Ind. Ct. App. 1986) (citing 

Westward Coach Mfg. Co. v. Ford Motor Co. (7th Cir. 1968), 388 F.2d 627, 633, cert. denied, 392 U.S. 927 (1968); 

Terry v. Int’l Dairy Queen, Inc., 554 F. Supp. 1088, 1098 (N.D. Ind. 1983)). The centrality of the likelihood of 

confusion to both the trademark infringement and the unfair competition claims make it understandable 

that the same analysis applies, including the element of “use in commerce.” See Heckler Koch, Inc., 71 F. 

Supp. 3d at 924; Fortres Grand Corp., 947 F. Supp. 2d at 926.
25

Plaintiffs’ argument that their unfair competition claims are based on different 

facts than their trademark infringement claims does not save the unfair competition 

claims from summary judgment. While Plaintiffs outline with great specificity the facts 

suggesting that deception was the natural and probable consequence of Jinfei’s conduct 

in relation to FIT and Future International, those facts also support their overarching 

allegations in their trademark infringement claim that FIT adopted its name to confuse 

consumers and that the FIT name is confusingly similar to Future International. Thus, 

with the same facts at issue and no evidence of use in commerce to establish the 

likelihood of confusion necessary for the unfair competition claims, any facts that 

remain in dispute will not affect the outcome of the unfair competition claims making 

them immaterial. Accordingly, Defendants are entitled to judgment as a matter of law 

on all of Plaintiffs’ trademark infringement and unfair competition claims in Counts VI 

and VII of the amended complaint.

Therefore, the Court GRANTS IN PART Defendants’ motion for partial 

summary judgment as to Plaintiffs Count VI for Unfair Competition and Count VII for 

Trademark Infringement and False Designation of Origin. [DE 73]. With no further 

claims against FIT or Ge, both are completely dismissed from this action.

Lastly, the Court NOTES that subject matter jurisdiction originated in this case 

from Plaintiffs’ federal Lanham Act claims, none of which have survived summary 

judgment. Nevertheless, the Court will continue to exercise supplemental jurisdiction 

over the remaining state law claims in this action because substantial federal judicial 

resources have been expended on this case in the last three years and remanding this 
26

case would cause unnecessary inefficiencies. See 28 U.S.C. § 1367(c)(3); Williams Elecs. 

Games, Inc. v. Garrity, 479 F.3d 904, 907 (7th Cir. 2007); Van Harken v. City of Chicago, 103 

F.3d 1346, 1354 (7th Cir. 1997). Arguably, subject matter jurisdiction based on a 

diversity of citizenship now exists as well because the amount in controversy in this 

action exceed $75,000 and only Jinfei, the only citizen of China in this action, remains as 

Defendant, Counterclaimant, and Third-Party Plaintiff.

b. Unjust Enrichment against Jinfei

Unjust enrichment is a common law remedy where there is no contract, but 

“where the circumstances are such that under the law of natural and immutable justice 

there should be a recovery as though there had been a promise.” Bayh v. Sonnenburg,

573 N.E.2d 398, 408 (Ind. 1991). Accordingly, a claim for unjust enrichment is not 

cognizable when the parties’ conduct is governed by an express contract. Town of New 

Ross v. Ferretti, 815 N.E.2d 162, 168 (Ind. App. 2004); DiMizio v. Romo, 756 N.E.2d 1018, 

1025 (Ind. App. 2001). “Nonetheless, plaintiffs seeking recovery for breach of contract 

often plead unjust enrichment in the alternative, because this theory allows for the 

possibility of recovery even if the court finds that no contract existed or that a contract 

existed but was unenforceable.” CoMentis, Inc. v. Purdue Research Found., 765 F. Supp. 2d 

1092, 1101–02 (N.D. Ind. 2011) (internal quotation and citation omitted).

Here, Jinfei contends that AMA’s unjust enrichment claim is improper because 

the conduct underlying the claim is the same conduct governed by the parties’ 

contracts. Additionally, Jinfei argues that Plaintiffs did not properly plead unjust 

enrichment in the alternative. “To plead in the alternative, a plaintiff must claim both
27

that a contract was breached and that a contract did not exist but equity demands that 

the injury be compensated.” Id. at 1103. “A party cannot pursue equitable relief simply 

because its contract claim fails, without alternatively alleging that there was either no 

contract on point or the contract at issue was unenforceable.” Id. AMA contends that it 

has successfully done just that. 

While agreeing that the conduct underlying the unjust enrichment claim is the 

same as the conduct underlying the breach of contract claims, AMA argues that the 

invalidity or unenforceability of the contracts can be inferred, in the alternative, from 

the fact that Future International did not raise the unjust enrichment claim against 

Jinfei. As AMA suggests, Future International would not exist if the contracts turn out 

to be invalid or unenforceable, a question the Court has not yet been required to 

resolve. Yet AMA will exist regardless of the status of the contracts. And there is no 

dispute that AMA performed services for Jinfei and was not compensated.

Accordingly, AMA’s unjust enrichment can still coexist with Plaintiffs’ breach of 

contract claims until such time the validity and enforceability of the contracts are 

determined. Therefore, the Court DENIES IN PART Defendants’ motion for partial 

summary judgment as to AMA’s Count V for Unjust Enrichment. [DE 73].

2. Counter-Defendant AMA’s and Third-Party Defendant Zou’s 

Motion for Partial Summary Judgment

Through the instant motion, AMA and Zou seek summary judgment on Jinfei’s 

four counterclaims and third-party claims, specifically its First Counterclaim of breach 

of fiduciary duty against AMA; its Second Counterclaim of unjust enrichment against 
28

AMA and Zou; its Third Counterclaim of conversion against AMA and Zou; and its 

Fourth Counterclaim of fraud against AMA and Zou. [DE 52 at 31–36].

1. Fraud against AMA and Zou

Jinfei’s claim of fraud against AMA and Zou is based on allegations that Zou and 

AMA made false statements of material facts to Jinfei regarding their familiarity with 

and good will within the American auto parts industry and assorted matters regarding 

the legal, tax, and business environment in Indiana as well as their ability to “obtain 

various preferential treatments in tax and land use” based on Zou’s relationship with 

Indiana officials and agencies. [DE 52 at 34]. Jinfei also alleges that it relied upon these 

statements in deciding to partner with AMA and Zou in its efforts to initiate business as 

a foreign company in the United States.

AMA and Zou now seek summary judgment on Jinfei’s fraud claim based on its 

contention that Jinfei has not presented any evidence that Zou misrepresented anything 

in his conversations with Jinfei. Liability for fraud requires intentional or reckless deceit 

that misleads another. Eby v. York-Division, Borg-Warner, 455 N.E.2d 623, 628 (Ind. Ct. 

App. 1983). To prove fraud, a plaintiff must establish 

“(1) a material misrepresentation of past or existing fact which (2) was 

untrue, (3) was made with knowledge of or in reckless ignorance of its 

falsity, (4) was made with the intent to deceive, (5) was rightfully relied 

upon by the complaining party, and (6) which proximately caused the 

injury or damage complained of.”

Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 335 (Ind. 2013).

Here, AMA and Zou contend that Zou told Jinfei he was familiar with aspects of 

the industry and community that would be of assistance in getting Jinfei’s business 
29

started. On the other hand, Jinfei alleges that Zou does not have the specialized 

knowledge or relationships in the Indiana legal, financial, governmental, and business 

environment that he reported to Jinfei and therefore that he lied to Jinfei. Instead, Jinfei 

alleges that Zou only had the knowledge of an average person that would have been 

insufficient for it to rely upon in its pursuit of entering the American parts industry. As 

such, a dispute of fact exists as to whether Zou’s representations about his knowledge, 

expertise, and relationships in Indiana and the relevant American auto/RV industry 

were truthful. This dispute of fact, however, is not material to any determination of the 

misrepresentation element of Jinfei’s fraud claim. 

In its attempt to establish a genuine dispute of material fact, Jinfei cites the 

following facts: (1) Zou is not a licensed lawyer or accountant; (2) AMA and Zou

concealed Indiana’s professional licensing requirements from it; (3) neither AMA nor 

Zou had a previous relationship with prospective customer Americana, with whom 

Jinfei had a business relationship predating the Jinfei/AMA connection; (4) prospective 

customers and third-parties Lionshead Specialty Tire & Wheel, Inc. (“Lionshead”) and 

HiSpec Wheels & Tires, Inc. (“HiSpec”) submitted affidavits denying any previous 

relationship or interest in a business relationship with AMA or Zou; and (5) AMA and 

Zou are not governmental employees or contractors. [DE 91 at 8–12]. What is missing 

from the record, however, is any evidence that Zou told Jinfei he was a licensed 

attorney or accountant or a government employee. Similarly, nothing in the record 

suggests that a license was required for Zou to offer his insights to a business partner 

based on his own experience with legal, tax, or governmental matters as a business 
30

owner. Therefore, failure to disclose such licensing requirements is irrelevant to 

whether or not Zou misrepresented his expertise to Jinfei. 

Additionally, Jinfei has produced no evidence that AMA and Zou claimed to 

have relationships with every company in the vehicle parts industry. Accordingly, 

AMA’s and Zou’s lack of relationship with Americana, Lionshead, and HiSpec does not 

conflict with the representation that they maintained relationships in the industry. As a 

result, the facts cited by Jinfei may be disputed, but are not sufficient for a reasonable 

jury to find that AMA and Zou intentionally or recklessly misrepresented facts about 

Zou’s experience, expertise, or relationships. Therefore, any disputed interpretation of 

Zou’s statements to Jinfei about his credentials to assist in its business expansion are not 

material to the misrepresentation element of the fraud claim.

Due to Jinfei’s failure to present evidence to establish a genuine dispute of 

material fact as to misrepresentation element, AMA and Zou are entitled to judgment as 

a matter of law on Jinfei’s fraud claim. Accordingly, the Court GRANTS IN PART 

AMA and Zou’s motion for partial summary judgment as to Jinfei’s Fourth 

Counterclaim of fraud. [DE 69].

2. Breach of Fiduciary Duty against AMA

Generally speaking, Jinfei alleges in its First Counterclaim that it was harmed 

because AMA, as Jinfei’s agent in the Future International project, breached its fiduciary 

duty by (1) failing to release its control over Future International; (2) failing to provide 

support to Jinfei and its employees as promised; and (3) failing to provide a detailed 

accounting of how it spent Jinfei’s $30,000 and diverting benefits gained to itself rather 
31

than Jinfei. [DE 52 at 31–32]. “[A] claim for breach of fiduciary duty requires proof of 

three elements: (1) the existence of a fiduciary relationship; (2) a breach of that duty 

owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary.” Rapkin Grp., 

Inc. v. Cardinal Ventures, Inc., 29 N.E.3d 752, 757 (Ind. Ct. App. 2015) (internal citation 

omitted). Here, AMA seeks summary judgment on Jinfei’s breach of fiduciary duty 

claim by solely alleging that a fiduciary relationship did not exist between them. 

AMA’s argument is premised on its interpretation that Jinfei is alleging breach of 

fiduciary duty in its own capacity rather than on behalf of Future International. On first 

glance, this makes sense as Jinfei alleges a partnership and agency in its first allegation 

in the counterclaim: “As a result of AMA’s partnership with Jinfei, AMA essentially 

acted as Jinfei’s agent in their joint investment project.” [DE 52 at 31, ¶ 47]. Yet Jinfei 

also alleged a fiduciary duty in direct relation to Future International in the same 

paragraph when it stated that 

AMA owed a fiduciary duty to Jinfei, including, but not limited to, the 

duty of undivided loyalty, the duty to act with the utmost good faith and 

honesty toward Jinfei, and the duty to disclose to Jinfei all facts within 

AMA’s knowledge that were material to the operation and management 

of Future International.

[Id.]. Thus, AMA’s argument here that Jinfei is alleging breach of fiduciary duty in its 

individual capacity rather than as a member of Future International is not clearly 

supported by the pleading or the parties’ briefing of the instant motion. 

And more curiously, AMA admitted in its answer to the counterclaim “that Jinfei 

and AMA were in a fiduciary relationship” while denying the remaining allegations. 

[DE 54 at 21, ¶ 47]. Consistent with that answer, AMA argues in the instant motion that 
32

it was not an agent of Jinfei in an attempt to support its assertion that a fiduciary 

relationship did not exist. Yet AMA’s admission in that very same answer that it was in 

a fiduciary relationship with Jinfei conflicts directly with this conclusion. The 

contradiction is even starker when compared to AMA’s own allegation, as part of its 

own breach of fiduciary duty claim against Jinfei in its First Amended Complaint. AMA 

pleaded that “[a]s partners in a joint venture and co-members in an LLC, AMA and 

Jinfei were in a fiduciary relationship.” [DE 14 at 8, ¶ 38].

“Judicial admissions are formal concessions in the pleadings, or stipulations by a 

party or its counsel, that are binding upon the party making them.” Keller v. United 

States, 58 F.3d 1194, 1199 (7th Cir. 1995). “[T]hey are not evidence at all but rather have 

the effect of withdrawing a fact from contention.” Id. (internal quotation and citations 

omitted). “A judicial admission is conclusive, unless the court allows it to be 

withdrawn; ordinary evidentiary admissions, in contrast, may be controverted or 

explained by the party.” Id.

In two of its pleadings, the First Amended Complaint and the answer to Jinfei’s 

counterclaim, AMA admitted that it was in a fiduciary relationship with Jinfei. These 

concessions in AMA’s pleadings constitute judicial admissions and are therefore 

binding on AMA unless the Court would allow them to be withdrawn. Yet, despite 

having the opportunity to do so, AMA makes no argument that withdrawal is 

warranted. 

Regardless of AMA’s judicial admissions, officers and members of Indiana LLCs, 

like Future International, share a common law fiduciary duty absent contrary 
33

provisions in the LLC’s operating agreements. See Purcell v. S. Hills Invs., LLC, 847 

N.E.2d 991, 996 (Ind. App. 2006). Here, Jinfei and AMA are the only members of Future 

International, LLC, creating just such a common law fiduciary relationship. AMA did 

not address this legal reality in its reply brief either.

Nevertheless, AMA argues that it was not the agent of Jinfei and that 

consequently, no fiduciary relationship existed between them. Indeed, “[a] confidential 

or fiduciary relationship [can exist] when confidence is reposed by one party in another 

with resulting superiority and influence exercised by the other.” Strong v. Jackson, 777 

N.E.2d 1141, 1148 (Ind. Ct. App. 2002) (internal quotation and citation omitted).

However, an arms’ length business relationship between two business partners may not 

translate into a fiduciary relationship despite a certain amount of trust between them. 

Iom Grain, LLC v. ZEA Global Seeds, SA, Cause No. 1:10-CV-337-TLS, 2011 WL 5006314, 

at *12 (N.D. Ind. Oct. 20, 2011). 

In Iom Grain, this Court carefully analyzed the full range of facts surrounding the 

parties’ business relationship before determining that a fiduciary relationship did not 

exist because neither party dominated or controlled the activity of the other. Id. Yet the 

business partners in Iom Grain were not co-members of an LLC nor had any party 

admitted in its pleadings that a fiduciary relationship existed. Therefore, the agencybased analysis was necessary and appropriate. Here, AMA does not even attempt to 

explain why its agency-based argument should supplant its own judicial admissions or 

its fiduciary relationship with Jinfei arising from their status as co-members of Future 

International. As a result, the Court is not persuaded to allow AMA to withdraw its 
34

judicial admissions or to ignore the fiduciary relationship inherit in its LLC 

membership. While a direct agency relationship may or may not exist between Jinfei 

and AMA, a fiduciary relationship definitely does.

Therefore, AMA is not entitled to judgment as a matter of law on Jinfei’s breach 

of fiduciary duty counterclaim. To resolve the remaining elements of Jinfei’s 

counterclaim, it may be necessary for a finder to fact at trial to determine which party 

shall succeed. Accordingly, the Court DENIES IN PART AMA’s motion for partial 

summary judgment [DE 69] as to Jinfei’s First Counterclaim of breach of fiduciary duty.

3. Conversion against AMA and Zou

In its Third Counterclaim for conversion against AMA and Zou, Jinfei alleges

that they “have obtained, and continue to retain, the benefit of the $30,000 that was 

wired by Jinfei (such as the leased pick up truck), including any remaining sums of 

money.” [DE 52 at 33, ¶ 59]. “Conversion, as a tort, consists either in the appropriation 

of the personal property of another to the party’s own use and benefit, or in its 

destruction, or in exercising dominion over it, in exclusion and defiance of the rights of 

the owner or lawful possessor.” Computers Unlimited, Inc. v. Midwest Data Sys., Inc., 657 

N.E.2d 165, 171 (Ind. Ct. App. 1995). “Where the initial possession is lawful, conversion 

occurs only after an unqualified demand for return.” Coffel v. Perry, 452 N.E.2d 1066, 

1069 (Ind. Ct. App. 1983). 

In this case, Jinfei cannot succeed on its conversion counterclaim unless it can 

prove that AMA and Zou obtained the $30,000 at issue illegally and that it made an 

unqualified demand to AMA and Zou for return of the $30,000. In their motion for 
35

partial summary judgment, AMA and Zou argue that Jinfei can prove neither and that 

they are therefore entitled to judgment as a matter of law on the conversion 

counterclaim. Yet Jinfei contends that a genuine dispute of material fact exists as to both 

elements. Specifically, Jinfei argues that AMA and Zou’s alleged fraud, discussed 

above, creates a genuine dispute of material fact as to whether AMA lawfully came into 

possession of the $30,000. 

No doubt, it is unlawful to come into possession of something by fraud. See 

Kollar v. State, 556 N.E.2d 936, 939 (Ind. Ct. App. 1990), disapproved of by Jackson v. State, 

50 N.E.3d 777 (Ind. 2016) (“a conviction of theft by false pretenses under IC 35-43-4-

1(b)(4) requires a showing that misrepresentations as to past or present facts were made 

in order to gain possession of another's property”). Yet the Court already granted 

summary judgment as to Jinfei’s Fourth Counterclaim of fraud above. With no genuine 

dispute of material fact as to the alleged fraud, Jinfei has not established a genuine 

dispute of material fact as to whether AMA and Zou possessed the $30,000 lawfully. 

Therefore, AMA and Zou are entitled to judgment as a matter of law on Jinfei’s 

conversion counterclaim regardless of whether a genuine dispute of material fact exists 

as to Jinfei’s unqualified demand for return of the $30,000.

Accordingly, the Court GRANTS IN PART AMA and Zou’s motion for partial 

summary judgment as to Jinfei’s Third Counterclaim of conversion. [DE 69].

4. Unjust Enrichment against AMA and Zou

Through its Second Counterclaim for unjust enrichment against AMA and Zou, 

Jinfei once again seeks a remedy for what it believes to be AMA’s and Zou’s 
36

exploitation and retention of benefits from the $30,000 Jinfei wired to them to obtain 

and pay leases pursuant to their contracts. As discussed thoroughly above, parties 

cannot recover on the equitable theory of unjust enrichment, or quantum meruit, when a 

contract controls the rights of the parties. See Town of New Ross, 815 N.E.2d at 168; 

DiMizio, 756 N.E.2d at 1025. A contract, however, must address the “identical subject” 

raised in the unjust enrichment claim to preclude liability under the equitably theory.

Engelbrecht v. Prop. Developers, Inc., 296 N.E.2d 798, 801 (Ind. Ct. App. 1973); see also Eagle 

Aircraft, Inc. v. Trojnar, 983 N.E.2d 648, 660 (Ind. Ct. App. 2013) (concluding that unjust 

enrichment did not apply because the contract between the parties governed their 

relationship and set forth terms addressing the benefit at the heart of the unjust 

enrichment claim).

Here, the parties dispute whether their contracts governed Jinfei’s provision of 

the $30,000 specifically and whether the contracts required AMA and Zou to return any 

unused sums from the $30,000. AMA and Zou’s reliance on Eagle Aircraft to support 

their contention that the parties’ contracts governed their conduct generally and 

therefore precludes any equitable remedy like unjust enrichment does not overcome 

this dispute over the scope of the contracts. First, Eagle Aircraft is premised on a contract 

that governed the benefit for which compensation through an equitable remedy was 

sought. 983 N.E.2d at 660. 

Second, AMA and Zou have not demonstrated that the contracts dictated the 

logistics of funding the apartment and vehicle leases. For instance, the contracts 

generally require AMA and Zou to secure the leases and for Jinfei to cover those costs, 
37

but do not specify how much could be spent, how or when Jinfei would cover the costs 

incurred by AMA and Zou, or how AMA and Zou would be required to handle any 

money received including the return of unused sums. With such general contract terms, 

it is unclear whether the conduct at issue in Jinfei’s unjust enrichment counterclaim is 

indeed covered by the contracts. As such it would be premature to preclude Jinfei’s 

counterclaim based on the contracts alone. Nevertheless, the Court can give Jinfei the 

benefit of the doubt here as the nonmovant and assume for the sake of argument that 

the unjust enrichment counterclaim is not precluded by the parties’ contracts.

Should the Court get to the merits of the counterclaim, however, Jinfei’s unjust 

enrichment counterclaim cannot succeed. “To prevail on a claim of unjust enrichment, a 

plaintiff must establish that a measurable benefit has been conferred on the defendant 

under such circumstances that the defendant’s retention of the benefit without payment 

would be unjust.” Sonnenburg, 573 N.E.2d at 408. In response to AMA and Zou’s motion 

for partial summary judgment, Jinfei has provided no evidence that AMA and Zou 

received any measurable benefit from the $30,000. In fact, Jinfei does not even mention

Zou’s affidavit, which AMA and Zou cited in their motion for partial summary 

judgment. In his affidavit, Zou delineated expenditures “to benefit and further the 

purposes of Future International” totaling $48,663.00 and averred that “[n]either [Zou] 

nor AMA personally received any benefit from the $30,000 because all of it was spent to 

benefit Future International.” [DE 69-2 at 9, ¶¶ 32–33]. Furthermore, Jinfei offers no 

rebuttal to Ren’s Rule 30(b)(6) deposition testimony that Jinfei “cannot identify an 

improper usage of the money by Mr. Zou, and that Jinfei doesn’t remember seeing 
38

receipts and invoices memorializing the legitimate expenses Mr. Zou accrued on behalf 

of Jinfei/Future International.” [DE 71 at 31 (citing DE 70 at 23, 85:17–86:13)].

Instead, Jinfei relies solely on the contractual argument discussed above to 

advocate for the survival of its unjust enrichment counterclaim. While a win here based

on the contractual argument would keep Jinfei’s unjust enrichment counterclaim alive, 

it would not ensure success for Jinfei on the counterclaim. Jinfei would be still be 

required to present sufficient evidence to show the existence of each element of the 

claim to survive summary judgment. See Celotex, 477 U.S. at 322–23; Robin, 200 F.3d at

1088. By failing to present evidence that AMA and Zou benefitted personally from the 

$30,000, none of which remains unused based Zou’s Affidavit, Jinfei has not met its 

burden. See Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., 475 U.S. at 587.

Therefore, there remains no genuine dispute of material fact and AMA and Zou 

are entitled to judgment as a matter of law. Accordingly, the Court GRANTS IN PART 

AMA and Zou’s motion for partial summary judgment [DE 69] as to Jinfei’s Second 

Counterclaim of unjust enrichment.

III. CONCLUSION

For the reasons discussed above, the Court now

(1) OVERRULES all of Defendants’ evidentiary objections [DE 85, 90, 92, 98];

(2) DENIES Defendants’ Renewed Motion for Sanctions [DE 72];

(3) DENIES Plaintiffs’ motion to compel [DE 75];

(4) GRANTS IN PART and DENIES IN PART AMA and Zou’s Motion for 

Partial Summary Judgment [DE 69]; and
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(5) GRANTS IN PART and DENIES IN PART Defendants’ Motion for 

Partial Summary Judgment [DE 73].

The Clerk is DIRECTED to enter judgment in favor of AMA and Zou on Jinfei’s 

Second Counterclaim of Unjust Enrichment, Third Counterclaim of Conversion, and 

Fourth Counterclaim of Fraud as pled in Defendants’ First Amended Answer to First 

Amended Complaint, Third-Party Complaint and Counterclaims [DE 52]. The Clerk is 

DIRECTED to enter judgment in favor of Defendants on Plaintiffs’ claims for Unfair 

Competition (Count VI) and Trademark Infringement and False Designation of Origin 

(Count VII) in their First Amended Complaint [DE 14]. 

With all claims dismissed against them, Future Industrial & Trading, Inc., 

Bingzao Ge, and Aaron Zou are terminated as parties in this action.

As an ancillary matter, the Court NOTES that AMA and Zou filed three exhibits 

[DE 70, 70-1, 70-2] related to its motion for partial summary judgment and two exhibits

[DE 76, 76-1] related to its motion to compel under seal without the Court’s permission. 

The Court must determine whether good cause exists to seal any part of the record of a 

case because it is in the public interest to keep court proceedings publicly accessible. See 

Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir. 1999). 

“Information that affects the disposition of litigation belongs in the public record unless 

a statute or privilege justifies nondisclosure.” United States v. Foster, 564 F.3d 852, 853 

(7th Cir. 2009). Without supporting authority or a showing of good cause that the 

exhibits at issue should be protected from disclosure to the public, the Court ORDERS 

Plaintiffs to submit a brief including authority and good cause for sealing the 
40

documents by July 6, 2018. Defendants may file any response by July 13, 2018. No 

further briefing will be accepted.

And, lastly, as explained above, the Court invokes Fed. R. Civ. P. 11(c)(3) and

ORDERS Defendants’ counsel to show cause by June 29, 2018, why the Court should 

not find that the Renewed Motion for Sanctions [DE 72] was presented for an improper 

purpose as prohibited under Fed. R. Civ. P. 11(b)(1) and should not impose monetary 

sanctions accordingly.

SO ORDERED.

Dated this 20th day of June 2018.

s/Michael G. Gotsch, Sr.

Michael G. Gotsch, Sr.

United States Magistrate Judge