author: JAMES E. GRAVES, JR., Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Roderrete Dewrayne MCCLURE, Defendant-Appellant
    No. 15-41641
    United States Court of Appeals, Fifth Circuit.
    FILED April 25, 2017

      James Mack Noble, IV, Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Texas, Tyler, TX, for Plaintiff-Appellee.
    Austin Reeve Jackson, Robert Kelly Pace, Tyler, TX, for Defendant-Appellant.
    Roderrete Dewrayne McClure, Pro se.
    Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
   JAMES E. GRAVES, JR., Circuit Judge:

Roderrete Dewrayne McClure appeals the denial of his motion to dismiss his indictment for narcotics trafficking, contending that prosecution of the charges is barred by the terms of a 2012 plea agreement (the “2012 Plea Agreement” or “Plea Agreement”) he entered into with the Government. Pursuant to that agreement, McClure pled guilty to a violation of 18 U.S.C. § 922(g)(1), Felon in Possession of a Firearm. Information leading to that charge was obtained during the course of the Government’s investigation of McClure for public corruption and narcotics trafficking, which eventually gave rise to the charges in the challenged indictment. We agree with the district court that the instant charges are based on a separate and distinct course of conduct from the § 922(g)(1) offense to which McClure pleaded guilty. Therefore, we AFFIRM.

I. BACKGROUND

A. Federal Investigation of Public Corruption and Drug Trafficking Conspiracy

Between August 2009 and August 2010, McClure conspired with then City Marshal of Tenaha, Texas, Fred Walker, to steal drugs on several occasions from the evidence room of the Tenaha Marshal’s Office in order to distribute them for sale. Dallas area resident Tracy Fortman later joined the conspiracy. Concerned about detection, McClure and Walker staged a burglary of the evidence room in August 2010, planting evidence to make it appear that members of a Mexican drug cartel had committed the burglary. They stole drugs and guns, but dumped the guns in a creek outside of Tenaha. Walker then notified an investigator with the Shelby County District Attorney’s Office about the burglary. Further investigation led authorities to suspect the burglary was staged.

The FBI became involved after Walker in November 2010 forwarded to FBI Special Agent Stewart Fillmore two identical extortion letters he and McClure received at their respective residences. The letters were signed by “Jack Frost,” who purported to be a DEA agent and threatened to expose the theft and drug trafficking conspiracy unless Walker and McClure each gave him $70,000. Agent Fillmore began investigating and by the summer of 2011 concluded that the letters had been written by Tracy Fortman.

After being confronted by authorities, Fortman admitted that he wrote the letters because he needed the money due to his lack of success in moving the drugs McClure and Walker provided him. Fort-man provided details about the conspiracy and the staged burglary. In addition, he showed Agent Fillmore a photograph of a “well-stocked” gun cabinet in McClure’s home. By that time, Agent Fillmore knew that McClure was a convicted felon.

Shortly before interviewing Fortman, Agent Fillmore also interviewed McClure about the alleged burglary of the Tenaha City Marshal’s office. During that interview, McClure, who ran a computer business in Tenaha, volunteered that, at Walker’s request, he had installed recording equipment at the Marshal’s Office and City Hall and that he kept copies of secret recordings on computers and hard drives in his home.

Based on this information, agents obtained a search warrant for McClure’s home on August 15, 2011. During execution of the warrant, agents seized several computers and other electronic devices, as well as 13 firearms, a body armor vest, and more than 1,000 rounds of ammunition. Upon questioning, McClure admitted his involvement with the narcotics trafficking scheme, including the staged burglary to cover up the theft of the drugs.

B. The § 922(g) Case (“the Lufkin Gun Case”)

Two days later, on August 17, 2011, the United States Attorney’s Office for the Eastern District of Texas, Lufkin Division, obtained an indictment against McClure charging a violation of 18 U.S.C. § 922(g)(1), Felon in Possession of a Firearm. While the case was proceeding to trial, the Government filed a notice of intent to offer Rule 404(b) evidence of the guns stolen from the Tenaha Marshal’s Office, which McClure had admitted he and Walker disposed of in a creek outside Tenaha. At a hearing, the district court excluded the evidence on Rule 403 grounds, finding that it concerned “this other crime which is still under investigation” and was merely “peripheral” to the § 922(g) charge; thus the evidence was substantially more prejudicial than probative.

Shortly thereafter, on February 14, 2012, McClure pleaded guilty to a single count of being a felon in possession of a firearm. In pertinent part, the 2012 Plea Agreement provided:

8. GOVERNMENT’S AGREEMENT: The United States Attorney for the Eastern District of Texas agrees not to prosecute the defendant for any additional non-tax-related charges based upon the conduct underlying and related to the defendant’s plea of guilty.

In conjunction with the agreement, McClure signed a factual resume describing his possession of 13 guns found in his home and his prior felony conviction.

At the plea hearing, the court informed McClure that the agreement “is taking care of federal charges against you here in the Eastern District of Texas.” The court asked McClure whether there was “any other agreement or promise from the [Government that’s not set out in this plea agreement.” McClure responded, “No, sir.”

McClure was sentenced to imprisonment for 36 months and one day, which was a downward departure from the guidelines range.

C. The Narcotics Trafficking Conspiracy Case (“the Tenaha Case”)

Following resolution of the Lufkin Gun Case, the Government continued its investigation of the public corruption and narcotics trafficking conspiracy. In September 2012, the investigation was transferred from the Lufkin to the Tyler Division. On August 28, -2013, a federal grand jury for the Eastern District of Texas, Tyler Division, returned a five-count indictment against McClure, charging two counts of drug conspiracy; possession with intent to distribute and distribution of marijuana, cocaine, and prescription drugs; use, carrying, and possession of a firearm during and in furtherance of a drug trafficking crime; and possession of a firearm by a convicted felon. The firearms at issue in the last two counts of the indictment were not the same weapons that formed' the basis of McClure’s 2012 Plea Agreement in the Lufkin Gun Case.

McClure moved to dismiss the indictment on the grounds that the Government’s prosecution of the new charges breached the 2012 Plea Agreement. The district court conducted an extensive motion hearing, at which it heard testimony from numerous witnesses, including the prosecutor and defense counsel in the Lúf-kin Gun Case and federal agents involved in the narcotics trafficking investigation.

At the hearing, defense counsel in the Lufkin Gun Case, Lori Mack, testified that it was her understanding during plea negotiations that the plea agreement would preclude any charges related to the Ten-aha narcotics investigation and that she advised McClure accordingly. When pressed for details regarding communications with the Government that led to her belief, however, she could not recall any specific conversation in which the Assistant U.S. Attorney (“AUSA”), Lisa Flour-noy, indicated that the plea agreement would dispose of drug trafficking allegations still under investigation.

Flournoy, by contrast, testified that she never suggested to Mack or anyone else that McClure’s pleading guilty in the Luf-kin Gun Case would dispose of possible future charges related to the ongoing narcotics investigation. Mack also never asked whether the plea agreement would cover such charges. Flournoy further testified that Mack never received any discovery pertaining to the narcotics investigation, other than evidence related to the guns stolen from the Marshal’s Office, which were the subject of the Government’s Rule 404(b) notice (and the basis of the gun charges in the instant indictment).

After the district court denied McClure’s motion to dismiss, the Government filed a superseding one-count information charging McClure with conspiracy to possess with intent to distribute over 50 kilograms of marijuana and aiding and abetting. On March 6, 2015, McClure pleaded guilty to the superseding information and was sentenced to 56 months of imprisonment, followed by three years of supervised release. The plea agreement reserved McClure’s right to appeal the denial of his motion to dismiss. He timely noticed an appeal.

II. DISCUSSION

A. Standard of Review

“This court reviews a claim of breach of a plea agreement de novo, accepting the district court’s factual findings unless clearly erroneous.” United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008) (quoting United States v. Lewis, 476 F.3d 369, 387 (5th Cir. 2007)) (internal quotations omitted).

B. No Breach of 2012 Plea Agreement

“If a defendant pleads guilty as part of a plea agreement, the Government must strictly adhere to the terms and conditions of its promises in the agreement.” Elashyi, 554 F.3d at 501 (quoting United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005)) (internal quotations omitted). “Furthermore, when a guilty plea ‘rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’” United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993) (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). The defendant bears the burden of proving by a preponderance of the evidence that the Government breached a plea agreement. Lewis, 476 F.3d at 387. To assess a claim of breach, “this court considers whether the government’s conduct is consistent with the defendant’s reasonable understanding of the agreement.” Elashyi, 554 F.3d at 501 (internal quotations and citation omitted). “We apply general principles of contract law in order to interpret the terms of the plea agreement.” Lewis, 476 F.3d at 387. “Thus, when a [plea] contract is unambiguous, this court generally will not look beyond the four corners of the document.” United States v. Long, 722 F.3d 257, 262 (5th Cir. 2013).

In the 2012 Plea Agreement, the Government agreed not to bring any additional charges “based upon the conduct underlying and related to the defendant’s plea of guilty.” The district court determined that this language was unambiguous and could be interpreted according to its plain meaning. It then resorted to Webster’s dictionary to construe the meaning of the two operative terms, defining underlying in relevant part as “to be at the basis of’ and related to as “to bring into logical or natural association.” The court also observed that the two terms were joined together by a conjunction, although it noted that its conclusion that McClure did not meet his burden of proving a breach of the plea agreement would be the same if the terms were joined disjunctively.

Accordingly, the district court concluded that, reasonably construed,

[T]he Government agreed not to bring a very specific kind of charge against the Defendant ... one that is based not only on conduct that forms the basis of (underlying) the Defendant’s plea of guilty to possessing firearms found in his home, but also is logically or naturally associated with (related to) Defendant’s plea of guilty to possessing the firearms found in his home.

Applying this meaning to the facts, the district court found that the two cases involved separate and distinct courses of conduct. In the Lufkin Gun Case, the factual basis of McClure’s plea of guilty was his possession of the 13 guns found in his home while he had a prior felony conviction. On the other hand, the Tenaha Case indictment charged that McClure engaged in a conspiracy to distribute drugs stolen from the Tenaha Marshal’s Office and that McClure possessed firearms stolen from the Marshal’s Office while trafficking drugs and while being a convicted felon. Further, all the alleged conduct in the Tenaha Case occurred from August 2009 to the end of 2010, months before the Government discovered the relevant conduct in the Lufkin Gun Case, on August 15, 2011. Therefore, the course of conduct underlying the charges in the Tenaha Case occurred at a different place and time than the conduct in the Lufkin Gun Case; it implicated different statutory violations; the firearms involved were unrelated to those found in McClure’s home; and Walker, an unindicted co-conspirator in the drug trafficking conspiracy, “is not, nor could he be, a co-conspirator in the Lufkin Gun Case.” Thus, the district court concluded that the charges in the Tenaha Case indictment were neither “underlying” nor “related to” the conduct to which McClure pleaded guilty through the 2012 Plea Agreement. Consequently, they were not barred by that Agreement.

We agree with the district court’s reasoning and its conclusion. In other cases where the Government has brought additional charges against a defendant based on conduct that was both temporally and geographically distinct and involved different statutory violations and co-conspirators, we have found no breach of the plea agreement. See United States v. Wittie, 25 F.3d 250, 263 (5th Cir. 1994) (no breach of plea agreement where “two distinct conspiracies were involved: they were separated by time; they involved different co-conspirators; they involved different statutory offenses; they included different overt acts in each offense charged; and they occurred in different geographical locations”), aff'd on other grounds sub nom. Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995); Lewis, 476 F.3d at 388 (no breach of plea agreement in serial prosecution for drug trafficking where new indictment pertained to larger drug trafficking conspiracy involving different co-conspirators and acts committed over much broader time span).

Two recent cases examining plea agreements with similar language further support this conclusion. In United States v. Ramirez, 555 Fed.Appx. 315 (5th Cir. 2014) (unpublished), the Government agreed not to prosecute a defendant for other charges “based on conduct underlying” his guilty plea to conspiracy to distribute methamphetamine. Id. at 318. When the defendant was later prosecuted for a larger drug and money laundering conspiracy involving cocaine, he claimed the Government breached the agreement. Id. We determined there was no breach because the two conspiracies were distinct. Id. “Given the different time frames, co-defendants, controlled substances, and general locations of the two offenses, it would not be reasonable for [the defendant] to believe that his plea agreement in the methamphetamine case barred his prosecution for the instant cocaine offense.” Id. Then in United States v. Bevill, 611 Fed.Appx. 180 (5th Cir. 2015) (unpublished), we interpreted language in a plea agreement identical to the pertinent language here. The defendant had pleaded guilty to securities fraud in exchange for the Government’s promise not to bring any additional charges against him “based upon the conduct underlying and related to [his] plea of guilty.” Id. at 180-81 (internal quotation marks omitted). When the Government subsequently charged him with wire fraud, securities fraud, and money laundering for conduct occurring while he was on supervised release from his earlier conviction, the defendant argued that the Government had breached the plea agreement because the two cases involved the same type of fraudulent scheme and much of the conduct underlying the new indictment had taken place before his guilty plea in the previous case. Id. at 182. We rejected this argument, determining that the conduct at issue in the two cases occurred at different times and involved different fraudulent entities and victims. Id. at 182-83. Thus, it was not reasonable for the defendant to interpret the Government’s earlier agreement as prohibiting a prosecution based on this separate and unrelated conduct. Id. at 183.

McClure does not deny that the two prosecutions involve different courses of conduct. Moreover, he concedes that the 2012 Plea Agreement is unambiguous on its face and, consequently, we generally would not look beyond the four corners of the document. See Long, 722 F.3d at 262. Nonetheless, he urges us to “take a more expansive view of the record” because, in his view, the circumstances surrounding the Plea Agreement render its scope ambiguous, such that he reasonably believed pleading guilty to the § 922(g)(1) charge in the Lufkin Gun Case would foreclose future prosecution for his involvement in the Tenaha drug trafficking conspiracy. We are not persuaded.

First, McClure argues that because the two cases arose from the same Government investigation, they are “inextricably intertwined.” This argument misses the point. The focus of the Government’s promise not to bring any additional charges is on the conduct “underlying and related to” McClure’s guilty plea, not on the Government’s investigation of that conduct. Because the charges in the Tenaha Case were based on a separate and distinct course of conduct from McClure’s guilty plea in the Lufkin Gun Case, those charges were not barred by the terms of the Plea Agreement.

Second, McClure contends that his case is akin to United States v. Elashyi, where we determined that the Government had breached a defendant’s plea agreement resolving charges of export violations arising from his computer-export business by subsequently prosecuting him for similar charges arising from his involvement in a separate export business. 554 F.3d at 501-02. But the language of the plea agreement in Elashyi was broader than the Plea Agreement here. In Elashyi, the Government agreed not to “seek, prefer or prosecute any further criminal charges against [the defendant] arising out of the facts and circumstances known by the government at this time surrounding [the defendant’s] involvement in the crimes addressed in the ... indictment.” Id. at 501. As we noted there, the phrase “arising out of’ has typically been given a “very broad interpretation.” Id. Furthermore, in Elashyi, the later prosecution arose out of facts that were not only known to the Government at the time of the plea offer, but also were an integral part of the background to the preceding indictment. Id. at 501-02. Indeed, those facts were alleged and incorporated by reference in connection with every count in the preceding indictment. Id. By contrast, the indictment in the Lufkin Gun Case never mentions the drug trafficking conspiracy. McClure seizes on the fact that here, as in Elashyi, the Government knew of the facts and circumstances that formed the basis of the Tenaha Case indictment at the time of the plea offer. But in Elashyi, the Government’s knowledge was significant because the language in the plea agreement made it. so. It expressly precluded “further criminal charges ... arising out of the facts and circumstances known by the government at this time surrounding [the defendant’s] involvement in the crimes addressed in the ... indictment.” Id. at 501 (emphasis added). McClure’s plea agreement contains no such language and the Government’s decision to wait to bring the instant charges until it completed its investigation is not otherwise a violation of the 2012 Plea Agreement.

Third, McClure asserts that his subjective belief that he would avoid prosecution for his involvement in the drug trafficking conspiracy is reasonable because his attorney, Lori Mack, believed the same and advised him accordingly. The district court discredited Mack’s testimony because she lacked a concrete basis for her subjective impression that the plea would absolve McClure from any liability related to the ongoing Tenaha investigation. Mack could not recall any communication from AUSA Flournoy that led to her belief. Flournoy, on the other hand, testified that she never made any such promise. Nor did Mack ever ask whether the plea would conclude the Tenaha investigation as it pertained to McClure. In fact, everyone, including the Lufkin court, seemed to be operating under the understanding that the investigation would continue after the plea. Given the gravity of the allegations under investigation, it would be unreasonable to assume that the Government would decline to pursue future charges against McClure unless it expressly stated such an intention. Moreover, the Government sought no term of sentence beyond the guidelines range for the felon-in-possession offense and McClure, in fact, received a sentence below the guidelines range. These circumstances make it even less plausible that the 2012 Plea Agreement was meant to cover the narcotics conspiracy, charges of which were not yet pending at the time of the plea offer.

A defense counsel’s subjective belief that a defendant’s plea will preclude future prosecution related to an ongoing investigation, even if the defendant relied upon it, does not, without more, immunize him from prosecution. See United States v. Williams, 809 F.2d 1072, 1079-80 (5th Cir. 1987) (although defense counsel believed clients’ plea agreement with Western District of Texas would preclude indictment related to ongoing investigation in Southern District of Texas and advised clients accordingly, government’s evidence supported trial court’s finding of no promise not to prosecute in Southern District), reh’g granted to different defendant, 828 F.2d 1 (5th Cir. 1987).

Finally, McClure contends that the Government’s conduct in the Lufkin Gun Case implied that it would not prosecute him for charges related to the drug trafficking conspiracy. The district court did not find any support in the record for any promise other than those contained in the 2012 Plea Agreement. McClure nonetheless suggests that the Government should have informed him at the time of the plea offer that it intended to bring charges related to the Tenaha investigation and that its silence amounted to trickery intended to induce him to plead guilty.

It is true that “when a guilty plea ‘rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’ ” Valencia, 985 F.2d at 761 (quoting Santobello, 404 U.S. at 262, 92 S.Ct. 495). But the defendant bears the burden of proving that the Government made such a promise, and omissions, without more, rarely suffice. See, e.g., United States v. Pihakis, 545 F.2d 973, 975 (5th Cir. 1977) (prosecutor’s failure to inform defendant of potential prosecution in another district did not constitute implied promise not to prosecute those charges); Feliciano v. United States, 914 F.Supp. 776, 779 (D.P.R. 1996) (Government’s knowledge of offenses charged in second indictment when it filed first indictment and failure to inform defendant of future prosecution did not constitute implied promise absent evidence of any actual promise not to prosecute), aff'd sub nom. Rivera-Feliciano v. United States, 107 F.3d 1 (1st Cir. 1997).

During the plea hearing in the Lufkin Gun Case, the court asked McClure whether there was any other agreement or promise from the Government that was not set out in the Plea Agreement itself. McClure responded that there was not. We have previously held a defendant to his statements at the plea hearing where he indicated there was no promise outside of the written agreement. See United States v. Kirk, 70 F.3d 791, 794 (5th Cir. 1995) (affirming district court’s finding that Government made no implied promise not to prosecute based in part on defendant’s statement at plea hearing that no one had made any promise other than plea agreement that induced him to plead guilty), reh’g granted on other grounds and aff'd by an equally divided court, 105 F.3d 997 (5th Cir. 1997). We similarly see no reason here not to hold McClure at his word.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

      . Neither Walker nor Fortman were indicted for the conspiracy.

      . See Webster's II New Riverside University Dictionary 992, 1257 (1994). In United States v. Bevill, 611 Fed.Appx. 180 (5th Cir. 2015) (unpublished), we also turned to the dictionary, there the Oxford English Dictionary ("OED”), to define these terms in similar fashion. See id. at 183 n.5 (noting OED defines underlying in part as "[l]ying under or beneath” and related to in part as "connected or having relation to something else”); see also OED Online, Oxford University Press 2017, http://www.oed.com/view/Entry/211817 and http://www.oed.com/view/Entry/ 161808#eid25955656 (last visited March 30, 2017).

      . McClure points out that both cases were investigated under the same agency case number; investigators recommended that the cases be prosecuted together; the Government at one point expressed concern that the relatedness of the two cases would cause a possible conflict for the defense attorneys involved; the majority of the evidence at issue in both cases came about as a result of the same search warrant; the Government sought to introduce evidence relating to the offenses charged in the Tenaha Case at his trial in the Lufkin Gun Case; and the charges in the Tenaha Case indictment parrots language in the 2011 search warrant that led to the discovery of the firearms in McClure’s home.

      . For example, although McClure makes much of the Government’s Rule 404(b) notice of its intent to introduce evidence of the guns stolen from the Tenaha Marshal’s Office at his trial in the Lufkin Gun Case, the Lufkin court excluded the evidence of “this other crime which is still under investigation.’’ Other than that evidence, Flournoy testified that she never provided Mack with any discovery pertaining to the drug trafficking conspiracy, which made it difficult for the district court "to ascertain how [Mack] determined that two courses of conduct are related enough to be covered by the plea agreement in the Lufkin Gun Case.”


source: Caselaw Access Project

author: EDWARD C. PRADO, Circuit Judge:

license: Public Domain

text:
    JACKED UP, L.L.C., Plaintiff-Appellant, v. SARA LEE CORPORATION; The J.M. Smucker Company, Defendants-Appellees. Jacked Up, L.L.C., Plaintiff-Appellant, v. The J.M. Smucker Company, Defendant-Appellee.
    No. 15-11019
    United States Court of Appeals, Fifth Circuit.
    FILED April 25, 2017

      Christopher D. Kratovil, Esq., Victor Calvin Johnson, Dykema Cox Smith, Dallas, TX, Kristina Marie Williams, Dykema Cox Smith, Austin, TX, for Plaintiff-Appellant.
    Christopher John Schwegmann, Attorney, David Steven Coale, Esq., Andres Correa, Michael Paige Lynn, Lynn Pinker Cox & Hurst, L.L.P., Dallas, TX, for Defendants-Appellees.
    Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

In September 2011, Jacked Up, L.L.C. (“Jacked Up”) and Sara Lee Corporation (“Sara Lee”) signed a licensing agreement whereby Sara Lee would produce and sell energy drinks developed by Jacked Up. Shortly thereafter, Sara Lee'sold its beverage division to the J.M. Smucker Company (“Smucker”). Smucker decided not to assume Sara Lee’s licensing agreement with Jacked Up, and in November 2011, Sara Lee formally terminated the agreement. Jacked Up brought suit against Sara Lee, alleging breach of contract, breach of fiduciary duty, fraud, and fraudulent inducement. Jacked Up joined claims against Smucker for, among others, tortious interference with a contract and trade secret misappropriation. The district court granted summary judgment against Jacked Up on all claims. We AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2011, Jacked Up was a small start-up company that sold energy shots to convenience stores. Sara Lee was a large corporation with multiple well-established food and beverage brands. Jacked Up’s founder and sole owner, Joe Schmitz, met some Sara Lee employees at a trade show in early 2011. Schmitz and the Sara Lee employees discussed creating a Jacked Up line of dispensed teas, coffees, and cappuccinos. Sara Lee already had an “Infusia” line of vitamin-infused teas under the Pickwick brand, but these teas were not marketed as energy drinks and did not sell well. Sara Lee saw a Jacked Up line of beverages as an opportunity to enter the energy drink market and “pioneer a brand new dispensed energy beverage category.”

After several months of negotiations and product development, Jacked Up agreed to license its brand name and proprietary energy ingredients to Sara Lee in exchange for royalties. Under the terms of the licensing agreement, Jacked Up would sell its energy ingredients to Sara Lee and Sara Lee would then manufacture and sell Jacked Up products. The parties agreed to share marketing costs. In addition, the agreement called for market testing. The initial term of the licensing agreement was five years, followed by a three-year renewal term. However, the licensing agreement featured a number of termination clauses triggered by various events and dates.

One termination provision, Section 14(b), gave either party “the right to terminate this Agreement if it provides written notice to the other party no later than 60 days prior to any anniversary of the Effective Date.” Sara Lee proposed adding this termination provision while the parties were finalizing the agreement. In an email, Sara Lee referred to this provision as an “annual Termination clause” affording both parties “the ability to terminate if strategy changes or market conditions shift, etc.” Jacked Up accepted the added provision, describing it as “adding limited right for either party to terminate at anniversary dates of agreement.”

During negotiations, Sara Lee also requested a change-of-control termination provision (Section 14(c)). In an email, Sara Lee director of marketing Greg Immell explained that Sara Lee wanted this provision “in the event North American Beverage is purchased by a third party company.” Schmitz testified that this statement led him to question Sara Lee “executives Mr. Drake and Mr. Immell about any intent to sell the North American Beverage [Division].” According to Schmitz, these executives represented that Sara Lee “had no intent to sell the business and that it was not discussing any sale to any third party. They also represented that [Schmitz] did not need to be concerned as under no circumstance would [Sara Lee sell] the business and not include the License Agreement as part of the deal.” Jacked Up and Sara Lee finalized the licensing agreement around September 28, 2011, with an effective date of October 1, 2011.

In early October 2011, shortly after the licensing agreement went into effect, Sara Lee displayed Jacked Up products at a convenience store trade show. According to Schmitz, a Sara Lee worker at the show told him about an impending sale of the company. Schmitz testified that he again asked Sara Lee executives — Immell and director of sales Jim Whitaker — whether Sara Lee was planning a sale. The executives, according to Schmitz, again represented that Sara Lee was not selling its business.

On October 24, 2011, Sara Lee publicly announced the sale of its North American Beverage Division to Smucker; this sale closed in early 2012. According to Schmitz, Sara Lee asked him to participate in a telephone call around October 21, 2011. On that call, according to Schmitz, Immell

stated that [Sara Lee] was selling its coffee business to Smuckers, that the License Agreement would not be part of the [sale] to Smuckers, that [Sara Lee] was terminating the License Agreement immediately at Smuckers’ request, that [Sara Lee] would no longer perform any obligations under the agreement, and that [Sara Lee] was discontinuing the Jacked Up Energy Iced Teas, Coffees, and Cappuccinos.

Schmitz testified that had he known of Sara Lee’s impending sale to Smucker, he would not have signed the agreement and would not have launched Jacked Up products at the convenience store trade show.

Immell recounted the late October telephone call somewhat differently. According to Immell, he did tell Schmitz that Smucker would not assume the licensing agreement. But he also indicated that “Sara Lee was interested in pushing forward with the proposed dispensed energy iced tea product pursuant to the License Agreement, including by pursuing the required market testing to see how a Jacked Up branded dispensed energy iced tea would fare in the marketplace.” Schmitz refused to move forward with market testing, however. Thus, according to Immell’s account, it was Jacked Up that violated the agreement first.

In any event, the deal quickly broke down. An internal Sara Lee email dated October 26, 2011, suggests that Sara Lee had told Jacked Up by then that the licensing agreement would not come to fruition. An email from Sara Lee to Schmitz on November 4, 2011, further states that “Jacked Up Energy Tea is not part of [the] sale and will be discontinued.” Sara Lee formally terminated the licensing agreement by letter on November 18, 2011.

As quickly as the licensing agreement, broke down, it wound up in court. Jacked Up brought a breach of contract claim against Sara Lee in Texas state court on November 7, 2011 — before Sara Lee even sent its formal termination letter. After Sara Lee removed the case to federal court, Jacked Up added Smucker as a defendant, claiming that Smucker tortiously interfered with the licensing agreement. Jacked Up later added claims for breach of fiduciary duty, fraud, and fraudulent inducement against Sara Lee, as well as a claim for common law trade secret misappropriation against Smucker. Jacked Up based this trade secret claim on the allegation that Smucker has used Jacked Up formulas in its Piekwick-brand iced teas (a brand it purchased from Sara Lee). .

After discovery, all three parties moved for summary judgment. In connection with these motions, the parties moved to strike certain summary judgment evidence. Jacked Up also requested a continuance pursuant to Federal Rule of Civil Procedure 56(d) in response to Smucker’s summary judgment motion, claiming that Smucker had not yet revealed what formula it was using in its teas. The district court granted Sara Lee’s and Smucker’s motions for summary judgment on various grounds, denied the motions to strike as moot, and denied Jacked Up’s 56(d) request for a continuance. The district court entered judgment in favor of Sara Lee and Smucker on June 4, 2015. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

Jacked Up is a limited liability company whose sole member — Joe Schmitz — is a Texas citizen. Sara Lee is a Maryland corporation with its principal place of business in Illinois. Smucker is an Ohio corporation with its principal place of business in Ohio. Therefore, the district court had diversity jurisdiction under 28 U.S.C. § 1332. This Court has appellate jurisdiction under 28 U.S.C. § 1291.

We review de novo a district court’s grant of summary judgment. Sierra, Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 562 (5th Cir. 1996). The Court must view “the facts and inferences ... in the light most favorable to the nonmoving party.” Id. at 562-63. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Additionally, this Court reviews for abuse of discretion a district court’s denial of a Rule 56(d) motion for a continuance. Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2018).

III. DISCUSSION

On appeal, Jacked Up argues that issues of fact preclude summary judgment on its breach of contract, breach of fiduciary duty, fraud, and fraudulent inducement claims against Sara Lee, as well as its tortious interference and trade secret claims against Smucker.

A. Claims Against Sara Lee

1. Breach of Contract

The district court concluded that Sara Lee terminated the contract in accordance with Section 14(b)’s plain language. Jacked Up challenges the district court’s interpretation of Section 14(b), insisting that this provision is ambiguous. In response, Sara Lee defends the district court’s interpretation of Section 14(b), and further argues that even if the district court misinterpreted this termination provision, Jacked Up fails to establish a breach of contract claim.

a. Whether the district court misinterpreted the contract

The contractual provision at issue in this case is Section 14(b) of the licensing agreement, which states: “Either party shall have the right to terminate this Agreement if it provides written notice to the other party no later than 60 days prior to any anniversary of the Effective Date.” The district court found this provision unambiguous. According to the district court, Section 14(b) permits at-will termination during a “10-month window every year.” Because Sara Lee terminated the licensing agreement during one such window — i.e., more than 60 days before the first anniversary date — the court held that Sara Lee did not breach the contract.

Jacked Up provides two alternative interpretations of Section 14(b). In its principal brief on appeal, Jacked Up argues that the word “anniversary” in Section 14(b) means the end of the initial five-year term and the end of the subsequent three-year renewal term. Jacked Up also offered this interpretation before the district court. In its reply brief, Jacked Up argues that Section 14(b) creates an annual right to opt out of the contract. In other words, “if a party gives notice 60 days prior to the anniversary of the Effective Date, the License Agreement terminates at the end of that calendar year. If neither party gives notice 60 days prior to the anniversary of the Effective Date, the License Agreement extends to another year.”

The parties agree that Illinois law controls the breach of contract claim. Under Illinois law, “[t]he primary objective in construing a contract is to give effect to the intent of the parties.” Gallagher v. Lenart, 226 Ill.2d 208, 314 Ill.Dec. 133, 874 N.E.2d 43, 58 (2007). A contract “is to be construed as a whole, giving effect to every provision, if possible.” Cent. Ill. Light Co. v. Home Ins. Co., 213 Ill.2d 141, 290 Ill.Dec. 155, 821 N.E.2d 206, 213 (2004). If words in the contract “are clear and unambiguous, they must be given their plain, ordinary, and popular meaning.” Id. “But if the contract is ambiguous, ‘its construction is then a question of fact, and parol evidence is admissible to explain and ascertain what the parties intended.’ ” Curia v. Nelson, 587 F.3d 824, 829 (7th Cir. 2009) (quoting Farm Credit Bank of St. Louis v. Whitlock, 144 Ill.2d 440, 163 Ill.Dec. 510, 581 N.E.2d 664, 667 (1991)). Contractual language is ambiguous if it “is susceptible to more than one meaning.” Gallagher, 314 Ill.Dec. 133, 874 N.E.2d at 58. Whether a contract is ambiguous is a question of law. Quake Constr., Inc. v. Am. Airlines, Inc., 141 Ill.2d 281, 152 Ill.Dec. 308, 565 N.E.2d 990, 994 (1990).

As an Initial matter, the first interpretation offered by Jacked Up — that Section 14(b) only permits termination at the ends of the initial and renewal terms — is unreasonable. This interpretation ignores the clear and unambiguous meaning of “anniversary”: “the yearly recurrence of the date of a past event.” Anniversary, Random House Webster’s Unabridged Dictionary (2d ed. 2001) (emphasis added). Thus, Section 14(b) unambiguously provides an annual right of termination.

The real interpretive question in this case is when termination is effective. Sara Lee argues, and the district court held, that termination under Section 14(b) is effective immediately. Jacked Up’s second interpretation, by contrast, implies that termination is effective at the end of the year. Both interpretations have some merit.

The plain language of Section 14(b) favors Sara Lee’s interpretation. Section 14(b) simply affords each party “the right to terminate ... if it provides written notice.” The provision does not state that termination is effective at some later date. The provision could have been written differently; for example, Section 14(b) could read:

Either party hereto may terminate this Agreement as of the anniversary date of this Agreement in any year by mailing written notice of its election to do so to the other party sixty (60) or more days before the effective date of such termination.

Rockwell Eng’g Co. v. Automatic Timing & Controls Co., 559 F.2d 460, 462 (7th Cir. 1977) (emphasis added); see also Int’l Adm’rs, Inc. v. Life Ins. Co. of N. Am., 753 F.2d 1373, 1382 (7th Cir. 1985) (“Either the Policyholder or the Company may terminate this policy on the first or any subsequent anniversary of the date of issue by written notice mailed or delivered to the other at least 30 days prior to the effective date of termination.”). In the absence of such language, it is reasonable to read Section 14(b) as permitting termination as soon as one party provides written notice to the other.

But Sara Lee’s interpretation has drawbacks. First, a provision that permits at-will termination ten months out of the year but not during the 60 days prior to October 1 makes little business sense. See Bd. of Educ. of Waukegan Cmty. Unit Sch. Dist. No. 60 v. Orbach, 372 Ill.Dec. 361, 991 N.E.2d 851, 857 (2013) (explaining that “a contract should be construed to avoid absurd results”). Second, reading the contract as providing at-will termination would largely nullify the contract’s other termination provisions in Sections 7 and 14. See Thompson v. Gordon, 241 Ill.2d 428, 349 Ill.Dec. 936, 948 N.E.2d 39, 47 (2011) (“A court will not interpret a contract in a manner that would nullify or render provisions meaningless.... ”). These other provisions permit termination upon 30, 60, or 90 days’ notice if certain events occur. But if a party can terminate immediately under Section 14(b), then it need not rely on these other provisions.

Sara Lee’s weaknesses are Jacked Up’s strengths. Jacked Up’s interpretation makes business sense: it gives each party an annual opportunity to opt out of the licensing agreement and gives the other party at least 60 days to wind down its commitments under the agreement. Moreover, this limited interpretation does not nullify the contract’s other termination provisions. Indeed, Jacked Up’s interpretation accords with the plain meaning of the other termination provisions in the licensing agreement, all of which make termination effective some period of time after notice is provided.

On balance, we find Section 14(b) ambiguous because the text is silent about when termination is effective. Setting aside context, Sara Lee’s interpretation is more natural than Jacked Up’s. But the text is not so “clear and unambiguous,” Cent. Ill. Light, 290 Ill.Dec. 155, 821 N.E.2d at 213, that we must read the provision as making termination effective immediately. By contrast, Jacked Up’s interpretation is more reasonable in context, but it does read words into the contract that are not present. “[C]onstru[ing] the contract as a whole [and] reading each term in light of the others,” Bank of Am. Nat’l Trust & Sav. Ass’n v. Schulson, 305 Ill.App.3d 941, 239 Ill.Dec. 462, 714 N.E.2d 20, 24 (1999), Section 14(b) is susceptible to both Sara Lee’s and Jacked Up’s interpretations. Accordingly, Section 14(b) is ambiguous, “its construction is ... a question of fact, and parol evidence is admissible to explain and ascertain what the parties intended.” Curia, 587 F.3d at 829 (quoting Whitlock, 163 Ill.Dec. 510, 581 N.E.2d at 667). We reverse the district court’s conclusion that Section 14(b) unambiguously permitted Sara Lee to terminate the licensing agreement at will.

b. Whether Sara Lee breached the contract

Under Illinois law, a breach of contract claim requires “evidence of (1) the existence of a contract; (2) [the plaintiffs] performance under the contract; (3) the defendants’ breach; and (4) resulting injury from the breach.” Burrell v. City of Mattoon, 378 F.3d 642, 651 (7th Cir. 2004). Because the district court interpreted Section 14(b) as permitting at-will termination, it held that Sara Lee’s termination did not breach the licensing agreement. On appeal, the parties dispute whether Sara Lee breached the contract even if the district court’s interpretation is incorrect. The parties appear to agree that the licensing agreement was a valid contract, but Sara Lee contests the other three elements of Jacked Up’s breach of contract claim. First, Sara Lee argues that it did not breach the contract prior to its formal termination on November 18, 2011. Second, Sara Lee argues that Jacked Up failed to perform its end of the contract by refusing to conduct market testing. In response, Jacked Up argues that Sara Lee repudiated first, thereby relieving Jacked Up of any further duties under the contract.

Both parties can point to evidence in the record supporting their respective positions on who repudiated first. Specifically, both parties cite to contrasting accounts of a telephone conversation in late October 2011. According to Sara Lee’s Greg Immell, he told Schmitz during that conversation that “Sara Lee was interested in pushing forward with the proposed dispensed energy iced tea product pursuant to the License Agreement.” By contrast, according to Schmitz, Immell represented that Sara Lee “was terminating the License Agreement immediately at Smuck-ers’ request.” Schmitz’s account is corroborated by an internal Sara Lee email dated October 26, 2011, suggesting that Immell had told Schmitz that the licensing agreement would be terminated and that Schmitz “was not too happy.”

If the district court’s interpretation of Section 14(b) is incorrect, and Sara Lee did “manifest! ] a clear, unequivocal intent not to perform under the contract when performance [was] due,” then it anticipa-torily breached the contract. Arlington LF, LLC v. Arlington Hosp., Inc., 637 F.3d 706, 713 (7th Cir. 2011). But if Sara Lee did not repudiate the agreement and Schmitz refused to conduct market testing, then Jacked Up failed to perform. Because evidence in the record supports both positions, there are genuine disputes about whether Sara Lee breached the contract and whether Jacked Up performed under the contract. Accordingly, we reverse the district court’s grant of summary judgment in favor of Sara Lee on Jacked Up’s breach of contract claim.

2. Breach of Fiduciary Duty

The district court granted summary judgment on Jacked Up’s breach of fiduciary duty claim, finding that Sara Lee did not owe any fiduciary duty to Jacked Up. On appeal, the parties dispute whether there is a fact issue as to the existence of a fiduciary relationship. See Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992) (“The existence of a confidential relationship is usually a question of fact.”). Jacked Up argues that its “ ‘partner’ relationship” with Sara Lee and the non-disclosure agreement (“NDA”) both parties signed created a fiduciary relationship between them. Sara Lee argues that the parties dealt with each other at arm’s length and notes that neither an NDA nor one party’s subjective trust in the other suffices to create fiduciary duties. Sara Lee also emphasizes that the licensing agreement itself disclaims a fiduciary relationship.

Under Texas law, “[t]he elements of a breach of fiduciary duty claim are: (1) a fiduciary relationship between the plaintiff and defendant; (2) the defendant must have breached his fiduciary duty to the plaintiff; and (3) the defendant’s breach must result in injury to the plaintiff or benefit to the defendant.” Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 283 (5th Cir. 2007) (quoting Jones v. Blume, 196 S.W.3d 440, 447 (Tex. App. — Dallas 2006, pet. denied)). “A fiduciary relationship may arise from formal and informal relationships and may be created by contract.” Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.—Houston [14th Dist.] 2008, no pet.). “[A] formal fiduciary relationship! ] ‘arises as a matter of law and includes the relationships between attorney and client, principal and agent, partners, and joint venturers.’ ” Navigant Consulting, 508 F.3d at 283 (quoting Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 508 (Tex. App.—Houston [1st Dist.] 2003, no pet.)). An informal fiduciary relationship, however, “may arise where one person trusts in and relies upon another, whether the relationship is a moral, social, domestic, or purely personal one.” Id. (quoting Jones, 196 S.W.3d at 449). In other words, a fiduciary relationship “exists where a special confidence is reposed in another who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.” Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 507 (Tex. 1980) (quoting Lappas v. Barker, 375 S.W.2d 248, 251 (Ky. 1964)).

But Texas law “does not recognize a fiduciary relationship lightly,” Lundy, 260 S.W.3d at 501, “especially in the commercial context,” Willis v. Donnelly, 199 S.W.3d 262, 278 (Tex. 2006). “To impose an informal fiduciary duty in a business transaction, the special relationship of trust and confidence must exist prior to, and apart from, the agreement made the basis of the suit.” Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 288 (Tex. 1998).

As Sara Lee notes, licensing agreements generally do not create fiduciary relationships. See, e.g., Wellogix, Inc. v. Accenture, LLP, 788 F.Supp.2d 523, 545-46 (S.D. Tex. 2011) (finding that licensing agreement was an arm’s-length transaction); Hollomon v. O. Mustad & Sons (USA), Inc., 196 F.Supp.2d 450, 458-59 (E.D. Tex. 2002) (finding that royalty agreement did not create a fiduciary relationship). Neither do NDAs or other agreements requiring confidentiality. See, e.g., Anglo-Dutch Petroleum Int'l Inc. v. Smith, 243 S.W.3d 776, 782 (Tex. App.— Houston [14th Dist.] 2007, pet. denied) (“To the extent Smith’s position equates a confidentiality agreement to a relationship of trust and confidence giving rise to a fiduciary duty, he has cited, and we have found, no authority supporting the notion that confidentiality agreements can create fiduciary relationships.”); Wellogix, 788 F.Supp.2d at 546 (finding that an NDA did not give rise to a fiduciary relationship). Additionally, “mere subjective trust alone is not enough to transform arm’s-length dealing into a fiduciary relationship.” Crim Truck, 823 S.W.2d at 595 (quoting Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962)).

Jacked Up suggests that it created a partnership with “dominant partner” Sara Lee. But the licensing agreement itself makes clear that it “does not, and shall not, be deemed to make any party hereto the agent, partner, joint venturer or legal representative of any other party for any purpose whatsoever.” Furthermore, Jacked Up fails to cite any authority for the proposition that a dominant party in a commercial transaction, where each party is represented by counsel, owes fiduciary duties to the weaker party.

Jacked Up also argues that “the collaborative effort to develop the products, the joint marketing efforts, ... and the promises of a long-term deal all would permit a reasonable juror to find the existence of a fiduciary relationship.” Such corporate dealings do not transform an arm’s length transaction into a fiduciary relationship. See Wellogix, 788 F.Supp.2d at 545 (“The Mutual Nondisclosure Agreement, the Marketing Alliance Agreement, [and] the two Teaming Agreements were all agreements between Accenture and Wellogix to jointly exchange information with each other in order to develop business opportunities to which both would contribute particular expertise and from which both would benefit. As such, these agreements are ‘arms-length transactions entered into for the parties’ mutual benefit, and thus do not establish a basis for a fiduciary relationship.’ ” (quoting Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex. 2005))).

In sum, Jacked Up fails to point to sufficient evidence that would support finding a fiduciary relationship between the parties. Therefore, we affirm the district court’s grant of summary judgment in favor of Sara Lee on Jacked Up’s breach of fiduciary duty claim.

3. Fraud and Fraudulent Inducement

Jacked Up’s claims for fraud and fraudulent inducement both rely on a series of alleged misrepresentations. But the district court granted summary judgment in favor of Sara Lee on these two claims for different reasons. On the fraud claim, the district court held that Jacked Up pleaded constructive, rather than common law, fraud. Constructive fraud, like breach of fiduciary duty, requires the existence of a fiduciary relationship. See Hubbard v. Shankle, 138 S.W.3d 474, 483 (Tex. App.—Fort Worth 2004, pet. denied). Because Sara Lee did not owe fiduciary duties to Jacked Up, the district court granted summary judgment in favor of Sara Lee on the fraud claim. On the fraudulent inducement claim, the district court first found that several alleged misrepresentations contradicted the terms of the licensing agreement and therefore cannot support a fraudulent inducement claim as a matter of law. Second, the district court found that Jacked Up’s reliance on other alleged misrepresentations was unjustified.

a. Whether Jacked Up pleaded common law fraud

On appeal, Jacked Up first challenges the district court’s holding that Jacked Up pleaded only constructive fraud. Common law fraud and constructive fraud “are independent causes of action.” Phillips v. United Heritage Corp., 319 S.W.3d 156, 167 (Tex. App.—Waco 2010, no pet.). The elements of common law fraud are (1) “a material misrepresentation” that (2) “was false,” (3) “was either known to be false when made or was asserted without knowledge of its truth,” (4) “was intended to be acted upon,” (5) “was relied upon,” and (6) “caused injury.” Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015) (quoting Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc, 960 S.W.2d 41, 47 (Tex. 1998)). Constructive fraud is “the breach of a legal or equitable duty that the law declares fraudulent because it violates a fiduciary relationship.” Hubbard, 138 S.W.3d at 483.

As an initial matter, the district court did err by applying Texas state law on general and specific allegations. Under federal procedural law, a plaintiff must “give fair notice in the pleadings of all claims brought against the defendant.” Homoki v. Conversion Servs., Inc., 717 F.3d 388, 402 (5th Cir. 2013). “So long as a pleading alleges facts upon which relief can be granted,” however, “it states a claim even if it ‘fails to categorize correctly the legal theory giving rise to the claim.’ ” Id. (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 604 (5th Cir. 1981)). For example, this Court read the plaintiffs pleading of an implied warranty claim under California law as a similar claim under Texas law, noting that “the most natural reading of the [plaintiffs’] broadly-worded complaint would include some version of that claim under Texas law.” McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 551 (5th Cir. 2003). However, this Court has also held that “district courts do not abuse their discretion when they disregard claims or theories of liability not present in the complaint and raised first in a motion opposing summary judgment.” De Franceschi v. BAC Home Loans Servicing, L.P., 477 Fed.Appx. 200, 204 (5th Cir. 2012) (unpublished).

Jacked Up’s fraud claim as articulated in its complaint is consistent with constructive fraud. Specifically, the complaint refers to Sara Lee as a trusted vendor and fiduciary that abused its position of trust and “violated the confidences bestowed upon [it].”

But the complaint is not clearly inconsistent with common law fraud. The relevant section is titled “Fraud (Against SL)” and mentions “the Defendant’s knowing, reckless, and intentional deception.” Moreover, the allegations made in the fraudulent inducement section of the complaint support Jacked Up’s common law fraud claim. Thus, “the most natural reading of [Jacked Up’s] broadly-worded complaint would include” common law fraud. McManus, 320 F.3d at 551. In addition, Jacked Up’s fraud and fraudulent inducement arguments are essentially identical both on appeal and in the summary judgment briefing. Given the ambiguity in Jacked Up’s complaint and the similarities between Jacked Up’s fraud and fraudulent inducement arguments, we find that Jacked Up gave “fair notice in the pleadings of all claims brought against the defendant.” Homoki, 717 F.3d at 402. Therefore, the district court erred in granting summary judgment on Jacked Up’s fraud claim on this ground.

b. Whether Jacked Up’s reliance on Sara Lee’s representations was justiñed

Jacked Up next argues that genuine issues of material fact preclude summary judgment on its fraud and fraudulent inducement claims. Sara Lee contends, as the district court held, that Jacked Up’s reliance on Sara Lee’s alleged misrepresentations was not justifiable.

“The issue of justifiable reliance is generally a question of fact.” Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 584 (Tex. App. — San Antonio 2011, no pet.). But “[i]t is well-established that ‘[t]he recipient of a fraudulent misrepresentation is not justified in relying upon its truth if he knows that it is false or its falsity is obvious to him.’ ” Nat’l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 424 (Tex. 2015) (quoting Restatement (Second) of Torts § 541 (Am. Law. Inst. 1977)). “Moreover, ‘a person may not justifiably rely on a representation if there are “red flags” indicating such reliance is unwarranted.’ ” Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010) (quoting Lewis v. Bank of Am. NA, 343 F.3d 540, 546 (5th Cir. 2003)).

On appeal, Jacked Up identifies several misrepresentations by Sara Lee. As the district court found, some of these representations were clearly contradicted by the licensing agreement itself. Sara Lee’s representation that Jacked Up would recoup its development costs several times over was contradicted by the fact that the licensing agreement merely set out royalty rates based on net sales. Similarly, Sara Lee’s representation that it would not terminate the contract was contradicted by the numerous termination provisions in the contract. Jacked Up could not justifiably rely on these “oral misrepresentations regarding the contract’s unambiguous terms.” Westergren, 453 S.W.3d at 424.

Jacked Up’s strongest argument for fraud and fraudulent inducement is based on Sara Lee’s alleged representations that it was not planning to sell its beverage division. Jacked Up claims it continued to develop products as well as negotiated and signed the licensing agreement in reliance on these representations. The district court found that Jacked Up’s reliance on these representations was unjustifiable because of another representation that Sara Lee made: that Sara Lee wanted to add the change-of-control termination provision at Section 14(c) “in the event North American Beverage is purchased by a third party company.”

Jacked Up surely knew that Sara Lee might sell its beverage division in the future. But this fact does not make Sara Lee’s other representation — that it was not currently planning to sell the company — obviously false. See Westergren, 453 S.W.3d at 424.

Whether Sara Lee’s explanation for why it wanted a change-of-control termination provision constituted a “red flag” is a closer question. Sara Lee cites several cases where reliance was unjustifiable based on some sort of red flag. In Grant Thornton, the Texas Supreme Court held that reliance on a company’s audit reports to purchase the company’s bonds was unjustifiable after the plaintiff learned that the company “had lost its primary source of funding.” 314 S.W.3d at 923. This fact was a red flag that contradicted the rosier picture painted by the earlier audit reports. Id. In Lewis, this Court examined the plaintiffs reliance on an oral representation by the defendant about the tax consequences of a transaction. 343 F.3d at 546-47. Documents prepared by the defendant in Lewis did not mention the tax consequences of the transaction or characterize the instruments at issue as tax-deferred. Id. at 547. This Court held that these documents were “a red flag warranting further investigation of the tax consequences of the loan transaction.” Id. In Skelton v. Urban Trust Bank, 516 B.R. 396 (N.D. Tex. 2014), a district court addressed whether a plaintiff justifiably relied on the defendant’s representation that it possessed a promissory note. The plaintiff in that case was aware of an affidavit executed by the defendant which indicated that the note was lost. Id. at 398. The court found that this lost note affidavit was a red flag that rendered reliance unjustifiable. Id. at 406.

Sara Lee’s explanation for why it wanted a change-of-control termination provision was not as much of a red flag as the defendants’ actions in Grant Thornton, Lewis, and Skelton. Merely suggesting the possibility of selling the beverage division did not “serve as a warning,” In re Mercer, 246 F.3d 391, 418 (5th Cir. 2001) (quoting William Prosser, Law of Torts § 108 (4th ed. 1971)), that Sara Lee was actively planning a sale. Even if it were such a warning, Jacked Up could not have learned the truth with reasonable investigation. Schmitz did the only thing he could to investigate — he asked Sara Lee executives whether they currently planned to sell the company. Sara Lee does not suggest that Jacked ,Up could have learned of the sale in some other way. Indeed, the sale was not made public until late October.

A more comparable case is In re Whittington, 530 B.R. 360 (Bankr. W.D. Tex. 2014). There, the plaintiff was confronted with a red flag — “a partially redacted contract with numbers that did not quite add up.” Id. at 385. The plaintiff asked the defendant “whether he was making side profits on the deal”; the defendant “lied in response.” Id. The court found that there was nothing obvious about this lie “that should have triggered further inquiry, nor was there any reason” to distrust the defendant. Id. Likewise, in this case there was nothing obviously false about Sara Lee’s representation that it was not planning to sell its beverage division, nor did Jacked Up have any reason to distrust Sara Lee.

At the very least, there is a genuine dispute of fact as to whether Jacked Up’s reliance on Sara Lee’s representations was justifiable. Therefore, we reverse the district court’s grant of summary judgment in favor of Sara Lee on the fraud and fraudulent inducement claims.

B. Claims Against Smucker

2. Tortious Interference with a Contract

The district court granted summary judgment in favor of Smucker on Jacked Up’s tortious interference claim on the ground that Sara Lee did not breach the licensing agreement. Jacked Up argues on appeal that genuine issues of material fact preclude summary judgment on its tortious interference claim. In response, Smucker first argues that no evidence supports a finding that Smucker caused Sara Lee to breach the contract. Second, Smucker argues that its actions were privileged under Illinois law.

As an initial matter, Jacked Up applies Texas law while Smucker applies Illinois law to the tortious interference claim. The district court applied Texas law but did not conduct a choice of law analysis. Although Texas and Illinois laws are slightly different in this context, the difference is not material. Accordingly, no choice of law analysis is necessary. See Schneider Nat’l Transp. v. Ford Motor Co., 280 F.3d 532, 536 (5th Cir. 2002) (“If the laws of the states do not conflict, then no choice-of-law analysis is necessary.” (quoting W.R. Grace & Co. v. Cont’l Cas. Co., 896 F.2d 865, 874 (5th Cir. 1990))).

Under Illinois law, a tortious interference claim has the following elements: “(1) there was an enforceable contract; (2) the defendant was aware of that contract; (3) the defendant intentionally and unjustifiably induced a breach of the contract; (4) breach resulted from the defendant’s wrongful conduct; and (5) the plaintiff has been damaged.” Marathon Fin. Ins. v. Ford Motor Co., 591 F.3d 458, 466 (5th Cir. 2009) (citing Smock v. Nolan, 361 F.3d 367, 372 (7th Cir. 2004)). Illinois “[cjourts will recognize a privilege in intentional interference with contract cases where the defendant was acting to protect an interest which the law deems to be of equal or greater value than the plaintiffs contractual rights.” HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill.2d 145, 137 Ill.Dec. 19, 545 N.E.2d 672, 677 (1989). If a defendant’s conduct is privileged under Illinois law, then “it is the plaintiffs burden to plead and prove that the defendant’s conduct was unjustified or malicious.” Williams v. Shell Oil Co., 18 F.3d 396, 402-03 (7th Cir. 1994).

Similarly, Texas law requires “(1) an existing contract subject to interference [and] (2) a willful and intentional act of interference with the contractf ] (3) that proximately caused the plaintiffs injury[] and (4) caused actual damages or loss.” Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). Privilege or justification is a complete defense to liability. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689-90 (Tex. 1989) (noting that “[t]he party asserting this privilege does not deny the interference but rather seeks to avoid liability based upon a claimed interest that is being impaired or destroyed by the plaintiffs contract”). “A party is privileged” under Texas law “to interfere with the contractual relations of another if: (1) it acts in the bona fide exercise of its own rights, or (2) the interfering party has an equal or superior right in the subject matter to that of the party to the contract.” Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 857 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (citing Prudential Ins., 29 S.W.3d at 80).

Jacked Up essentially points to two acts of interference by Smucker. First, Smucker requested that Sara Lee terminate the licensing agreement. If this were true, then Jacked Up would seem to have a strong prima facie claim of tortious interference under either Illinois or Texas law. In support of this act of interference, Jacked Up points to Schmitz’s declaration, which states that around October 21, 2011, Sara Lee’s Greg Immell told him on a telephone call that Sara Lee was “terminating the License Agreement immediately at Smuckers’ request.” Smucker’s instruction to Sara Lee would be admissible as an opposing party’s statement. See Fed. R. Evid. 801(d)(2)(D) (a statement is not hearsay if “offered against an opposing party and ... made by the party’s agent or employee on a matter within the scope of that relationship and while it existed”). But Immell himself was not an employee of Smucker at that time; thus, his statement relaying Smucker’s instruction appears to be' hearsay not subject to any exception. See Fed. R. Evid. 805 (hearsay within hearsay is only admissible “if each part of the combined statements conforms with an exception to the rule”). Moreover, Jacked Up offers no “equivalent circumstantial guarantees of trustworthiness” to introduce this statement under the residual exception to the hearsay rule. Fed. R. Evid. 807(a)(1). Accordingly, Schmitz’s declaration is inadmissible against Smucker to show that Smucker intentionally caused Sara Lee to terminate the contract.

Second, Jacked Up argues that Smucker induced Sara Lee to terminate the contract by opting not to assume the licensing agreement when it purchased Sara Lee’s beverage division. Smucker argues that its decision was justified. Specifically, Smucker’s corporate deponent explained that Jacked Up’s brand was not a good fit with Smucker’s “family-friendly, family-oriented” image. In an email dated October 28, 2011, a Smucker vice president also explained that Smucker did not “want this contract as a means to enter the energy drink business. We will have our hands full successfully integrating the new [Sara Lee] businesses into our portfolio.” This evidence supports a finding that Smucker made its decision “based on business considerations,” Marathon Fin. Ins., 591 F.3d at 468 (applying Illinois law), “in the bona fide exercise of its own rights,” Baty, 63 S.W.3d at 857 (applying Texas law).

Jacked Up cites no Illinois or Texas case where a defendant unjustifiably interfered with a plaintiffs contract merely by purchasing some of a third-party’s assets and declining to assume the third party’s contract with the plaintiff. To the contrary, a defendant in Smucker’s position would ordinarily be justified in assuming some contracts but not others as part of an asset purchase. Indeed, one court has found that in the context of a tortious interference claim, Texas law affords a privilege to a party purchasing assets from a corporation. C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 791-92 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Because no evidence or case law supports the finding that Smucker’s actions were unjustified, we affirm summary judgment in favor of Smucker on the tortious interference claim.

2. Trade Secret Misappropriation

The district court held that the Ohio Uniform Trade Secrets Act (“UTSA”), Ohio Rev. Code § 1333.61-.69, preempts Jacked Up’s common law trade secret claim, and denied Jacked Up’s Rule 56(d) request for a continuance. On appeal, Jacked Up argues that Texas law applies and that the district court abused its discretion by denying its Rule 56(d) request. Smucker defends the district court’s decision and also argues that Jacked Up has failed to put forth sufficient evidence in support of a trade secret claim.

The district court conducted an extensive choice of law analysis and found that Ohio law governs this claim. Courts “apply the law of the forum state to determine which state’s law applies.” Mumblow v. Monroe Broad., Inc., 401 F.3d 616, 620 (5th Cir. 2005). Under the “most significant relationship” test used by Texas courts,

The factors to consider in determining the applicable law for a tort case such as this are (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the residence, nationality, and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered.

In re ENSCO Offshore Int’l Co., 311 S.W.3d 921, 928 (Tex. 2010) (citing Restatement (Second) of Conflict of Laws § 145 (Am. Law. Inst. 1971)). In trade secret misappropriation cases, “the place of injury does not play so important a role”; “[i]nstead, the principal location of the defendant’s conduct is the contact that will usually be given the greatest weight.” Restatement (Second) of Conflict of Laws § 145 cmt. f. Thus, in this case, the fact that Smucker allegedly misappropriated a trade secret in Ohio is more important than the fact that Jacked Up suffered its injury in Texas. The third factor weighs equally in favor of Texas and Ohio law because Jacked Up is a Texas citizen and Smucker is an Ohio citizen. The fourth factor is not particularly applicable because Jacked Up and Smucker never had any formal relationship. On balance, we agree with the district court that Ohio has the most significant contacts with this claim and that no countervailing policy considerations weigh against this conclusion. Therefore, we apply Ohio law to Jacked Up’s trade secret claim.

Ohio’s UTSA provides a remedy for “misappropriation.” Ohio Rev. Code § 1333.63. Misappropriation is defined, among other things, as “[acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means,” Ohio Rev. Code § 1333.61(B)(1), or “use of a trade secret of another without the express or implied consent of the other person by a person who ... [u]sed improper means to acquire knowledge of the trade secret,” Ohio Rev. Code § 1333.61(B)(2).

Jacked Up fails to put forth evidence showing that Smucker has acquired or used any trade secret. The core of Jacked Up’s trade secret claim is that Smucker is using Jacked Up’s formulas for its Pickwick- and Infusia-brand iced teas. Smucker contends that its four iced tea flavors were developed by Sara Lee and mixed by Beverage House, Inc. (“Beverage House”) before Sara Lee came into contact with Jacked Up. The record supports Smucker’s account. For example, a declaration by a Beverage House representative states that Beverage House mixes the same iced tea flavors and the same energy component (XR16817000) for Smucker as it did for Sara Lee in 2010. This energy component differs from the one developed by Jacked Up. Additionally, a recent production batch sheet shows that Beverage House continues to use the XR16817000 energy component in the Raspberry Infu-sia Iced Tea.

Recognizing that it lacks evidence in support of its trade secret claim, Jacked Up seeks additional time for discovery under Rule 56(d). Rule 56(d) allows a court to deny a summary judgment motion and extend discovery if the party opposing summary judgment “shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). “While Rule 56(d) motions for additional discovery are broadly favored and should be liberally granted, the party filing the motion must demonstrate how additional discovery will create a genuine issue of material fact.” Smith v. Reg’l Transit Auth., 827 F.3d 412, 422-23 (5th Cir. 2016) (citations and internal quotation marks omitted). In particular, the party opposing summary judgment “must ‘set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion.’ ” Biles, 714 F.3d at 894 (quoting Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)). That party must also have “diligently pursued discovery.” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014) (quoting Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001)).

The district court found that Jacked Up failed to submit an affidavit in support of its Rule 56(d) motion and failed to show that it diligently pursued discovery. On appeal, Jacked Up argues that it needs “documents regarding the formulas [Smucker] is using for its new energy tea.” But the record already reflects that Smucker is using formulas developed by Sara Lee in 2010. Additionally, Jacked Up does not show that it diligently pursued discovery. Jacked Up did not move to compel production of these documents during the discovery period — the first time it sought judicial assistance in obtaining these documents was in response to Smucker’s summary judgment motion. Under these circumstances, the district court did not abuse its discretion by denying Jacked Up’s Rule 56(d) motion for a continuance. Cf. Beattie, 254 F.3d at 606 (affirming denial of Rule 56(d) motion where plaintiff failed to depose certain defendants during discovery period).

Because Jacked Up has failed to put forth evidence showing that Smucker acquired or used any trade secret, we affirm the district court’s grant of summary judgment in favor of Smucker on the trade secret misappropriation claim. Additionally, we affirm the district court’s denial of Jacked Up’s Rule 56(d) motion for a continuance.

C. Whether Jacked Up Can Prove Damages

Finally, Sara Lee and Smucker urge the Court to affirm summary judgment on an alternative ground: that Jacked Up’s evidence of lost profits is speculative. Jacked Up’s evidence of lost profits — an expert report prepared by EJ Janik (“Jan-ik Report”) — is critical to its claim for damages. Indeed, this expert report is the only evidence of damages in the record.

Sara Lee and Smucker principally argue that Illinois law bars recovery of lost profits by new businesses. Generally, Illinois “courts consider evidence of lost profits in a new business too speculative to sustain the burden of proof.” Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill.2d 218, 305 Ill.Dec. 584, 856 N.E.2d 389, 407 (2006). This “new business rule” also applies “to new product lines in established businesses when profits are difficult to measure.” TAS Distrib. Co. v. Cummins Engine Co., 491 F.3d 625, 633 (7th Cir. 2007). Texas courts apply a similar rule. See Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994) (“Profits which are largely speculative, as from an activity dependent on uncertain or changing market conditions, or on chancy business opportunities, or on promotion of untested products or entry into unknown or unviable markets, or on the success of a new and unproven enterprise, cannot be recovered.”). This rule is not ironclad, however. See, e.g., TriG, 305 Ill.Dec. 584, 856 N.E.2d at 407-08 (upholding jury’s award of new business’s lost profits based on comparable profits made by an established business). Indeed, the new business rule is simply an extension of the general rule that lost profits are only “recoverable if proved to a reasonable degree of certainty.” TAS Distrib., 491 F.3d at 632; accord Phillips v. Carlton Energy Grp., LLC, 475 S.W.3d 265, 278 (Tex. 2015) (“[L]ost profits can be recovered only when the amount is proved with reasonable certainty.”).

The Janik Report calculates lost profits by projecting future sales of Jacked Up products. These sales figures assume that a certain number of stores would buy Jacked Up tea, coffee, and cappuccino each year and that each store would buy a certain number of cases of Jacked Up products. The Janik Report pulls these assumptions from Sara Lee’s own internal projections. Jacked Up neither explains why these numbers are reasonably certain nor points to any evidence in the record substantiating them — perhaps partly because Sara Lee had no contracts with convenience stores to provide Jacked Up products by the time it terminated the licensing agreement, although 7-Eleven did pursue such a contract.

We leave it to the district court to determine whether Jacked Up has put forth sufficient evidence of damages. The district court may choose to conduct a Dau-bert inquiry to determine whether the Janik Report is admissible. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (suggesting that Federal Rule of Evidence 702 demands “more than subjective belief or unsupported speculation”); see also Sportsband Network Recovery Fund, Inc. v. PGA Tour, Inc., 136 F.3d 1329 (5th Cir. 1998) (unpublished table decision) (affirming district court’s application of both Dau-bert and Texas state law to a lost profits claim). Indeed, Sara Lee and Smucker moved to exclude the Janik Report, and this motion was still pending when the district court granted summary judgment. We leave it to the district court to determine whether the Janik Report is admissible, and if it is admissible, whether it establishes lost profits with reasonable certainty.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

      . ''Dispensed” means that the beverage is distributed using stand-alone equipment rather than through a fountain machine or in bottles or cans.

      . This division was one of several under the Sara Lee corporate umbrella at the time. Jacked Up dealt primarily with employees of this division.

      . In an earlier declaration, Schmitz stated that this conversation took place on October 26, 2011.

      .An internal Smucker email dated October 28, 2011, confirms that Smucker did not plan to assume Sara Lee’s contract with Jacked Up.

      . Jacked Up did briefly refer to this interpretation in its principal brief on appeal: Barring an interpretation, which Sara Lee never advanced in the District Court, that the clause was intended to provide for an annual right for unilateral termination without cause, the only other "anniversaries” in the Licensing Agreement are those described in the testimony of Jacked Up's principal, Mr. Schmitz.

      . This could mean at the end of the calendar year, as Jacked Up suggests, or on the anniversary date, October 1.

      . Sara Lee itself explained the purpose of Section 14(b) in an email dated September 26, 2011: to afford both parties "the ability to terminate if strategy changes or market conditions shift, etc.” This email also describes Section 14(b) as permitting "[termination with 60 days notice.” We do not consider this parol evidence in determining whether Section 14(b) is ambiguous, but the district court may consider it on remand.

      . We discuss Jacked Up’s performance and Sara Lee's breach here, and damages in Part III.C below.

      . The district court held, and the parties agree, that Texas law applies to Jacked Up’s extra-contractual claims against Sara Lee.

      . Note that courts sometimes refer to “common law” fraud as "actual” fraud. See, e.g., Flanary v. Mills, 150 S.W.3d 785, 795 (Tex.App.-Austin 2004, pet. denied).

      . Because we find that there is a genuine dispute as to whether Sara Lee breached the agreement, we cannot affirm the district court on this ground.

      . Illinois courts sometimes use this same language to determine whether the defendant’s interference was justified as part of the prima facie case for tortious interference. See Nation v. Am. Capital, Ltd., 682 F.3d 648, 651 n.2 (7th Cir. 2012) (explaining this confusion); Roy v. Coyne, 259 Ill.App.3d 269, 196 Ill.Dec. 859, 630 N.E.2d 1024, 1035 (1994) (quoting this language in the context of justifiability).

      . Although the defendants presented this argument below, the district court disposed of each claim on other grounds and did not address whether Jacked Up can prove damages. We may affirm summary judgment on this ground even though the district court did not address it. See Culbertson v. Lykos, 790 F.3d 608, 627 (5th Cir. 2015).

      . Jacked Up likely could have claimed reliance damages. See, e.g., Restatement (Second) of Contracts § 349 (Am. Law. Inst. 1981) ("As an alternative to [expectation damages], the injured party has a right to damages based on his reliance interest, including expenditures made in preparation for performance or in performance, less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed.”). Although counsel for Jacked Up stated at oral argument that Jacked Up does have reliance damages, such damages are not substantiated in the record or explained in Jacked Up’s briefs.