Full opinion text
MEMORANDUM OPINION BEATY, District Judge. I. INTRODUCTION This matter comes before the Court on Defendant ATL Ultrasound Inc.’s (“Defendant” or “ATL”) Motion for Summary Judgment [Document # 47]. Also before the Court are Defendant’s Motion to Strike [Document # 57] portions of declarations filed by Plaintiff Volumetries Medical Inc. (“Plaintiff’ or “VMI”) accompanying its memorandum in opposition to Defendant’s Motion for Summary Judgment, and Defendant’s Motion to Strike [Document # 58] Plaintiffs Statement of Specific Facts. For reasons explained herein, Defendant’s Motion for Summary Judgment shall be GRANTED in part and DENIED in part. Defendant’s Motion to Strike portions of Plaintiffs declarations shall be DENIED, and Defendant’s Motion to Strike Plaintiffs Statement of Specific Facts shall be GRANTED. II. FACTUAL AND PROCEDURAL BACKGROUND Defendant is a Washington corporation with its principal place of business also in Washington State. (Complaint ¶ 8.) Defendant’s ultimate corporate parent is Royal Philips Electronics (“Philips”). (Compl., ¶¶ 8, 2.) Plaintiff is a Delaware corporation with its principal place of business in Durham, North Carolina. (Compl., ¶ 7.) Plaintiff alleges damages in an amount exceeding $75,000, to be more fully determined at trial. (Compl., ¶¶60, 68, 74, 79, 86, 91.) Hence, this Court has jurisdiction pursuant to 28 U.S.C. § 1332 as the parties are citizens of different states and the amount in controversy exceeds $75,000. Plaintiff is a start-up company founded in 1991 by two researchers at Duke University, Olaf Von Ramm and Steve Smith, and by John Oxaal, a venture capital investor and former student of Dr. Von Ramm. (Brief in Sup. of Def.’s Mot. for Sum. Judg., at 1.) Plaintiffs corporate focus was developing the commercial applications of certain innovative medical technologies, including ultrasound diagnostic imaging machines capable of displaying images of the human body, in real time, in both two and three dimensions (“RT2D” and “RT3D”). (Compl., ¶ 1.) Plaintiff operated under-government grants until 1995 when it began to obtain venture capital. (Brief in Sup. of Def.’s Mot. for Sum. Judg., at 1-2.) In addition to Mr. Oxaal, two of Plaintiffs principal investors were Bill Bright and Walter Wilkinson. (Id. at 2.) In the fall of 1999 Plaintiff appointed Bright to locate a strategic partner to help take a RT3D ultrasound machine to market. (Id.) Upon invitation from Plaintiff, Defendant’s Chief Technical Officer, Jacques Souquet, visited Plaintiffs demonstration of its ultrasound technology at the 1999 American Heart Association trade show. (Id.) Shortly thereafter Mr. Sou-quet appointed David Croniser (“Croniser”), director of cardiology product development, to learn more about Plaintiff. (Id.) At the beginning of this learning process Plaintiff and Defendant signed a Mutual Nondisclosure Agreement to protect the confidentiality of any proprietary information they might share. (Dep.Exh. 396.) Through the early months of 2000, representatives from Plaintiff and Defendant met on three occasions. In January 2000, Plaintiff gave a presentation about its 3D technology to Croniser and two of Defendant’s senior engineers, Roy Peterson and David Roundhill. (Compl., ¶ 17; Brief in Sup. of Def.’s Mot. for Sum. Judg., at 2.) On February 28 and 29, 2000, Plaintiffs engineers and Defendant’s engineers had a detailed discussion about a potential joint machine that would utilize technology from both companies. (Compl., ¶ 20-21; Brief in Sup. of Def.’s Mot. for Sum. Judg., at 2.) At the same time, Croniser met with Plaintiffs business representatives to discuss a preliminary structure of a potential business deal between ATL and VMI. (Compl., ¶ 22; Brief in Sup. of Def.’s Mot. for Sum. Judg., at 2.) In March 2000, three of Plaintiffs representatives demonstrated Plaintiffs 3D technology at Defendant’s headquarters in Bothell, Washington to some of Defendant’s engineers and to various members of Defendant’s management, including CEO Tim Mickelson. (Compl, ¶ 26; Brief in Sup. of Def.’s Mot. for Sum. Judg., at 2.) At a meeting in Durham, N.C. on April 13 and 14, 2000, Croniser and three of Plaintiffs investors -Bright, Oxaal, and Wilkinsonmet to further discuss a potential deal involving a possible joint venture and/or corporate purchase of VMI by ATL. (Compl., ¶ 28.) The group ultimately generated a document entitled “ATL/Volu-metrics Term Sheet April 14, 2000 Rev. 1.01” (“Term Sheet”). (Compl., ¶ 28; Dep. Exh. 486.) Plaintiff points to this document as an indication of an alleged agreement between Plaintiff and Defendant. (Compl., ¶¶ 28-29.) This document, however, was not signed by either party. Croniser, Peterson, and one of Defendant’s financial analysts presented the idea for a potential VMI/ATL joint project to their superiors during a meeting of Defendant’s management council on June 16, 2000. (Brief in Sup. of Def.’s Mot. for Sum. Judg., at 4.) In the days following the meeting at ATL Croniser described the meeting’s substance in voicemails to Jim Mundell, Plaintiffs Vice President and General Manager, and to Steve Grenon, Plaintiffs Vice President and Chief Technical Officer. (I'd) Each of Croniser’s voi-cemails also discusses Philips, Defendant’s corporate parent, stating in one of the messages that “we have at least gotten over the first hurdle, the ATL hurdle and now we have two Phillips [sic] hurdles to go through. One is the Michelson’s [sic] Group and the second one is the whole Board of Directors for Philips corporate.” (Dep.Exh. 458.) Similar references to Philips appear in the other voicemails. (See Dep. Exh. 458; Dep. Exh. 491.) Mundell and Grenon had the text of the voicemails transcribed and provided them to Bright. (Id) In turn, Bright sent an email to Plaintiffs other principal investors and to three of Plaintiffs directors informing them of Croniser’s reports. (Dep.Exh. 488.) Thereafter, Plaintiff alleges it committed its engineers and other employees to using 100% of their time to work on a joint VMI-ATL ultrasound machine. (Compl., ¶ 29.) Around June 2000, Plaintiff provided Defendant with engineering resource and budget information, and Plaintiff and Defendant worked together to develop a joint budget. (Compl., ¶ 30c.) Throughout July 2000, Plaintiffs engineers and Defendant’s engineers corresponded with each other with questions and information regarding the technical details of the potential machine. (See Grenon Deck, ¶¶ 35f-35s and citations contained therein.) Croniser met again with Plaintiffs business representatives on July 7, 2000. Croniser informed them that the Philips Mergers and Acquisitions group had become preoccupied with negotiations for another potential deal, and that he did not know the nature of those negotiations. (Compl., ¶ 41; Brief in Sup. of Def.’s Mot. for Sum. Judg., at 5.) Croniser predicted this would cause a delay, which could span two or more months. (Compl., ¶ 41.) On July 14, 2000, Roundhill and Peterson of ATL traveled to VMI for a joint engineering meeting and reviewed design plans for the joint product, product cost projections, and other development plans. (Compl., ¶ 31.) As a result of the meeting, Plaintiff and Defendant developed a list of action items, which assigned tasks for both parties to complete. (Id.) Jim Mundell of VMI emailed the list of action items to Defendant and, in his email cover letter, described the list as “a summary of the action items we generated in our meeting last Friday” and, later in the email, informing ATL that he would “be more insistent [sic] as time goes on that we assign names, priority and dates to each item so that we can successfully drive our project and companies forward.” (Dep.Exh. 61.) Throughout July, August, and September of 2000, Croniser of ATL and Bright of VMI talked several times. Croniser also communicated with Plaintiffs Vice President and Chief Technical Officer Grenon. Croniser kept Plaintiff posted on the status of progress toward finalizing the joint transaction and was generally optimistic about “moving forward.” (Compl., ¶¶42, 44-47; Dep. Exhs. 458, 491.) As a reason for the delay, Croniser stated that Mickel-son, Defendant’s CEO, was tied up with the other transaction, as were the mergers and acquisitions people at Philips. (Compl., ¶¶ 41, 47; see also Dep. Exh. 495.) Croniser traveled to Durham, N.C. to meet with VMI again on September 18, 2000. (Compl., ¶ 48.) The purpose of this visit, as described in an email from VMI’s Jim Mundell to the company’s engineers, was to “assure us that ATL is still very interested in working with us .... ” (Dep. Exh. 191.) Mundell also noted that “[t]here will be no negotiations occuring [sic] during this visit. As we have said before, no negotiations will take place until the Philips lawyers become available.” (Id.) The meeting included a presentation by Croniser to all of VMI’s employees. (Dep.Exh. 495.) Bill Bright of VMI generated notes from the meeting, which reflect that Bright’s impression of “the outside [time frame Croniser was] lookfing] at was four weeks or maybe five weeks that we ought to have negotiated and gotten the final deal.” (Id.) At the end of the day, Bright drove Croniser to the airport and the two of them discussed the potential deal further. Bright’s notes also reflect this conversation, stating that “he [Croniser] was telling me driving in the car how tough these M & A people were going to be.” (Id.) Bright’s notes conclude by stating that “I felt that he [Croniser] is being more pessimistic about what they can do with me than he was in front of the people.” (Id.) Croniser’s employment with Defendant ended in late October 2000, for reasons upon which the parties have not elaborated. (Brief in Sup. of Def.’s Mot. for Sum. Judg., at 6.) Chief Engineer Roy Peterson thereafter became Plaintiffs main contact person at ATL. (Id.) On November 17, 2000, Philips publicly announced that it had agreed to acquire a portion of a subsidiary of Hewlett Packard known as Agilent. (Dep.Exh. 194.) Specifically, Philips planned to acquire Agi-lent’s Healthcare Solutions Group (“Agi-lent HSG” or “Agilent”). (Id.) However, due to the large size of the transaction the corporations had to gain the approval of the United States Department of Justice before the deal could be closed. (See e.g. Mickelson Dep., at 61-68, 259-60.) As it turned out, ultrasound was a part of Agi-lent HSG’s range of products. (Brief in Sup. of Def.’s Mot. for Sum. Judg., at 6.) Defendant ATL, however, contends it did not know the details of Agilent HSG’s 3D ultrasound technology until after the Department of Justice approved the acquisition in May 2001. (Id.) On December 1, 2000, Bright, Grenon, and other VMI employees traveled to Washington State and met with various ATL employees, including CEO Mickelson, to discuss the status of the ATL/VMI talks in light of Philips’ planned acquisition of Agilent. (Compl., ¶ 53, Dep.Exhs.499, 500.) Bright’s notes on the meeting indicate that he and Grenon proposed exploring ways in which all three companies might work together. (Dep.Exhs.499, 500.) Bright also put forth a proposal requesting that, beginning in January 2001, Defendant buy $250,000 of Plaintiffs stock each month at a price of $3.50 per share. (Dep.Exh. 500.) During the meeting, Mickelson asked that Bright send this proposal to him in writing after Bright had returned to Durham, N.C. (Id.) Bright sent a letter to Mickelson on December 5, 2000 setting forth the “short term” proposal as he had described it in the December 1, 2000 meeting. (Dep.Exh. 501.) The funding scheme Bright recommended in his proposal to Mickelson was to be in effect “until the Agilent transaction is approved or disapproved by the government. At that time, we [VMI] would then meet with you [Mickelson] and/or your team to finalize a deal that is fair to both of us.” (Id.) On January 5, 2001 Mickelson called Bright to state that ATL could not accept Bright’s December 5, 2000 proposal. It was also at that time that Mickelson advised Bright that ATL would not further proceed with discussions with VMI. (Compl., ¶ 55, Dep.Exh. 502.) Subsequently, on February 16, 2001, Plaintiff ceased all its operations and terminated all but one of its employees. (Compl., ¶ 55, Gre-non Deck, ¶ 2.) Plaintiff commenced this action on the same day asserting claims of breach of contract, breach of joint venture agreement, actual and constructive fraud, negligent misrepresentation, unfair and deceptive acts and practices and/or unfair competition, breach of fiduciary duty, and unjust enrichment. (Compl., ¶¶ 56-91.) The Court will consider these claims in turn. However, Defendant has certain preliminary motions before the Court that will be addressed prior to considering the substantive issues raised by the summary judgment motion. III. DISCUSSION A. Motions to Strike The Court will first consider Defendant’s Motions to Strike, since they bear on what will comprise the record which the Court may look to in deciding the Motion for Summary Judgment. 1. Motion to Strike Portions of Declarations Submitted by Volumetries Defendant’s first motion to strike [Document # 57] moves to strike portions of the Declarations which Plaintiff submitted as an attachment to its response to Defendant’s Motion for Summary Judgment. As set forth in Federal Rule of Civil Procedure 56(e), such affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affi-ant is competent to testify to the matters stated therein.” As a basis for its Motion to Strike, Defendant points to Rule 56(g) which prohibits affidavits presented for the purpose of delay. Fed.R.Civ.P. 56. Defendant cites Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), and argues that the Rule 56(g) concept “has been held to include affidavits filed inconsistent with deposition testimony where there is no explanation given for the change of position and where the apparent purpose is simply to attempt to create an issue of fact.” (Mot. to Strike Portions of Decs. Submitted By Volumetries, at 1.) In addition to the prohibition against conflicting testimony, Defendant notes that affidavits must be based on personal knowledge, rather than on information and belief, and must not amount to conclusory allegations or speculation. (Id. at 2.) Within its motion, Defendant objects to numerous, specific portions of the declarations of William Bright, Steve Grenon, John Oxaal, and Walter Wilkinson. In each instance, Defendant’s argument is based on the standards it cites in pages 1-3 of its motion and can generally be categorized as either challenging a particular portion of the declaration because: 1) Defendant believes it conflicts with prior testimony, or 2) it is not based on personal knowledge. (Id. at 1-3.) Defendant’s personal knowledge argument can be further categorized into objections that the portion in question: a) is phrased in terms of the declarant’s “understanding” or “belief,” b) contains conclusory allegations and/or speculation without identifying any individual or circumstance associated with the statement, or c) amounts to a legal conclusion or an otherwise improper characterization. While the Court has reviewed each specific request, the Court finds that it need not address them individually at this juncture. For the purposes of this opinion, the Court will discuss and rule on each of the general categories Defendant has raised as being objectionable. Then, if necessary during the trial, specific objections may be raised and ruled on at that time. With regard to the first category, the Court has examined each of the instances in which Defendant believes a particular declarant’s statements contradict his previous testimony or the prior testimony of other witnesses. The Court finds that none of the cited instances present such glaring contradictions as to be worthy of being stricken from the record at this stage. As an example, the Court will analyze one of Defendant’s specific requests that is representative of Defendant’s objections in this category. Defendant seeks to have statements regarding Mr. Bright’s authority to bind VMI stricken from the record by arguing that they contradict Bright’s deposition testimony. Defendant also argues that such contradiction is made “all the more clear” by the testimony of John Oxaal and Walter Wilkinson. Specifically, Defendant cites the portion of paragraph 4 of Mr. Bright’s declaration which reads: “I had sole authority to act on behalf of the [VMI] Board of Directors ...” as well as paragraph 33 which states that “[w]ith respect to VMI, I, along with John Oxaal, had authority from the VMI Board of Directors to negotiate a deal with ATL. Specifically, we had the authority to bind VMI to the agreement with ATL as reflected in the provisions of the Term Sheet.” (Bright Decl., ¶ 4.) Defendant argues these statements are in conflict with the following portions of Bright’s deposition testimony: “Q Did you ever go on the board of Volumetries? A No, sir. Q Did you ever hold an office in Volu-metries? A No, sir. Q Were you ever in a position of making decisions on behalf of Volumetries? A Not independently. I would have had to have gotten the approval of the board or the chairman of the board. Q Did you have any, did you ever have any official authority with respect to Volumetries? A No, sir .... I want to go back to the other question. Official responsibility, did I ever have any official authority, ... I want to retract my answer because I think by virtue of what the Board authorized me to do that I probably had authority. (Page 84, Line 16 — Page 85, Line 15.) Q Mr. Bright, before lunch one of the last things we talked about was your authority for VMI and you said something like that the Board had authorized you to do something. Did the point in time come when the Board of Volumet-ries authorized you to take certain actions? A Yes. íjS # í-5 % JjÍ Q ... what authority did they give you? Lets best take care of that. What authority did the board give you? A Yes. Well, they gave me authority to try and find a partner for Volumetries. (Page 90, Line 19 — Page 91, Line 19.)” (Def.’s Mot. to Strike Portions of Declarations Submitted by Volumetries, at 3-4.) First, with respect to Defendant’s argument that alleged contradictions between Bright’s declaration and his previous testimony are made “all the more clear” by the testimony of others, the Court is guided by the Cleveland v. Policy Mgmt. Sys. Corp. case. In principle, Defendant is correct in the proposition for which it cites this case, however, the rule is narrower than the way in which Defendant applies it. “[A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her oum previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. at 806, 119 S.Ct. at 1603, 143 L.Ed.2d 966 (emphasis supplied). Thus, affidavits are not fatally flawed merely because they conflict with any of the deposition testimony in a particular case. Thus, in order for the information Defendant cites as being an item that may rise to the level of material which may warrant being stricken, the contradictions relied upon must be among statements from a particular person, and not as between statements of different individuals. Accordingly, the Court will not consider any inconsistencies between Bright’s declaration and the previous deposition testimony of Oxaal and Wilkinson as a basis for this portion of the Motion to Strike. As for any of Bright’s own previous testimony which may not directly mirror the statements in his declaration regarding his authority, the Court finds the declaration does not flatly contradict Bright’s deposition statements, but rather, it serves only to clarify or augment his deposition. See Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995) (“Disregarding ... those parts of [Plaintiffj’s affidavit that contradict, as distinct from merely clarifying or augmenting, his deposition ....”). Overall, Bright’s deposition seems to indicate that the scope of his authority was not conclusively defined, he simply was “to try and find a partner for Volumetries.” This does not directly conflict with Bright’s declaration statements that he “had sole authority to act on behalf of the [VMI] Board of Directors ...” or that he, “ along with John Oxaal, had authority from the VMI Board of Directors to negotiate a deal with ATL.” The scope of authority Bright describes in his present declaration could be viewed as being a part of his overarching mission to find a partner for VMI. The Court will now turn to Defendant’s second basis for its motion to strike portions of the declarations, that is, Defendant’s argument that the declarants lack personal knowledge because their specific statements either: a) are phrased in terms of their “understanding” or “belief,” b) contain conclusory allegations and/or speculation without identifying any individual or circumstance associated with the statement, or c) amount to a legal conclusion or otherwise improper characterization. The Court has reviewed each specific request, and finds that none of the individual instances where Defendant argues the declarant lacks personal knowledge is so deficient as to warrant being stricken from the record at this stage. As mentioned above, if necessary during the trial, specific objections may be raised and ruled on at that time. Again, as an example, the Court will analyze one of Defendant’s specific requests that is representative of all Defendant’s objections in each category. Defendant’s request to strike “[a]ny statements by Mr. Bright regarding his ‘understanding’ or ‘belief ” is typical of the first category of Defendant’s personal knowledge objections. (Mot. to Strike Portions of Decs. Submitted By Volumetrics, at 8-9.) Specifically, one of the paragraphs of Bright’s declaration that Defendant believes should be stricken is number 58, “to the extent it states Mr. Bright’s understanding of Mr. Croniser’s statements or his belief as to what Mr. Croniser knew regarding the Agilent negotiations.” (Id. at 9.) Defendant’s qualms with this paragraph are largely based on semantics. While Bright does use the phrases “I understood” and “I believe,” those words do not per se indicate that he lacks personal knowledge. Rather, the words denote that Bright is offering his opinion or inference. Such inferences are permissible provided they are based on personal knowledge and have a factual foundation. See Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir.1998); accord Carroll v. Town of University Park, Maryland, 1998 WL 390617 *4, n. 4 (4th Cir.1998) (unpublished) (“Although statements in affidavits can include inferences and opinions, those inferences must be based on personal knowledge and have a factual foundation.”). The Court finds that there are facts within Bright’s declaration, and elsewhere in the record, that could potentially support the position Bright takes in paragraph 58. (See e.g. Bright Deck, ¶¶ 22-29, 48, 51-55.) Accordingly, the Court will not strike paragraph 58 as it merely uses the words “understood” and “believe” to express inferences or opinions of the declarant, which are based on personal knowledge and supported by a factual foundation. Defendant’s second main argument within: the lack of personal knowledge category is that certain statements in the declarations contain conclusory allegations and/or speculation and fail to identify any individual or circumstance associated with the statement. For example, regarding the declaration of Steve Grenon, Defendant moves to strike “[ejvery reference in which Grenon says that ‘ATL’ said or did anything where there is no specific reference to an individual and circumstances under which the statement or action was made.” (Mot. to Strike Portions of Decs. Submitted By Volumetries, at 11.) One such instance “would include Paragraph 14” in which Grenon states that “ATL repeatedly stressed ... that the key to the partnership relationship between ATL and VMI was a fast ‘time to market’ for the joint product.” (Id.; Grenon Deck, ¶ 14.) Contrary to Defendant’s assertion, paragraph 14 of Grenon’s declaration does identify the circumstances when “ATL stressed” a point, namely, “in 'the agenda [the declaration previously described this “agenda” in paragraph 12], during the February meetings, and throughout the relationship .... ” (Grenon ¶ 14.) The agenda for the February 2000 meetings also makes clear that Grenon’s statement is not speculation or a conclusory allegation in that it lists three “[e]mphases” for the meetings with “[t]ime to market” at the top of the list. (Dep. Exh. 317; see also Peterson Dep., at 92 indicating that, during the February 2000 meetings, “we[ATL]indicated that ... our interest was in their technology only to the extent that it ... could afford us quick time to market. My desire was to get to market as quickly as possible with real-time 3D.”) In addition, Grenon attended the February 2000 meetings and thus had personal knowledge of the events that took place therein. As for identifying an individual associated with the declaration’s assertion, ATL is a corporate “individual” and therefore has the ability to “stress” a point through the actions of its agents. ATL’s engineers David Roundhill and Roy Peterson thus, on behalf of ATL, emphasized the time to market for the potential product. The Court finds that Grenon had personal knowledge sufficient to support the statements in paragraph 14 of his declaration. Defendant’s final argument within the lack of personal knowledge category is that certain portions of the declarations contain legal conclusions or otherwise improperly characterize evidence. An example of this argument is Defendant’s objection to paragraphs 22-31 of Bright’s declaration which, Defendant contends, “characterize! ] the meaning of Exhibit 485” and “state! ] a legal conclusion in summary fashion.” (Mot. to Strike Portions of Decs. Submitted By Volumetries, at 9.) Deposition Exhibit 485 is a document entitled “Volumetries Term Sheet” which, Bright’s declaration asserts, was used “as the basis to negotiate the terms of an agreement between the parties” and ultimately evolved into Exhibit 486, which Bright refers to as “the agreed-upon Term Sheet .... ” (Bright Decl., ¶ 22.) Bright’s statements concerning these documents are based on his personal knowledge of the discussions between VMI and ATL, in which he participated extensively as VMI’s lead negotiator. Plaintiff claims these discussions resulted in a contract and/or a joint venture agreement which it alleges Defendant breached. (Compl., ¶¶ 56-60.) In determining whether an agreement could have arisen by implication, the state of mind of the parties is directly relevant. See Brendsel v. Marvin Lumber and Cedar Co., 2002 WL 369917 at *3, 30 Fed.Appx. 221 (4th Cir.2002) (“Disputes about whether a contract has or has not been formed as the result of words and conduct over a period of time are quintessentially disputes about ‘states of mind’ ....”) (citing Char-bonnages de France v. Smith, 597 F.2d 406, 414-15 (4th Cir.1979)). Thus, Bright’s characterization and accompanying understanding of Exhibits 485 and 486 is based on personal knowledge and is therefore relevant and admissible. To the extent such characterizations might be construed as legal conclusions, the Court, in deciding the motion for summary judgment, has drawn its own conclusions without being swayed by any potentially impermissible material. See e.g. Flair Broad. Corp. v. Powers, 733 F.Supp. 179, 183 n. 6 (S.D.N.Y.1990) (“to the extent that any of the affidavits contain legal argument or conclusion, the parties are assured that those impermissible sections were not considered by us on this motion.”). In summary, the Court is mindful of the general notion that “ ‘the papers of a party opposing summary judgment are usually held to a less exacting standard than those of the moving party Richardson v. Oldham, 12 F.3d 1373, 1378 n. 17 (5th Cir.1994) (quoting Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir.1987)); accord 10B Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2738, at 343-44 (3d ed.1998). Indeed, since Defendant’s motions to strike are made in the context of the Court’s consideration of Defendant’s summary judgment motion, it must be remembered that the burden of proving that there is no genuine issue of material fact rests on the moving party and the opposing party is entitled to all of the favorable inferences that reasonably may be drawn from the papers before the court. With these principles in mind, the Court has examined each of Defendant’s specific requests to strike portions of the Bright, Grenon, Oxaal, and Wilkinson declarations and analyzed them in a manner similar to the categorical examples discussed above. After such review the Court is unmoved by Defendant’s arguments in support of its specific requests to strike and, therefore, will DENY Defendant’s motion to strike in its entirety. 2. Motion to Strike Volumetries’ Statement of Specific Facts Defendant’s second motion to strike [Document # 58] is directed towards Plaintiffs “Statement of Specific Facts,” which Plaintiff submitted along with its Response Memorandum in Opposition to Defendant’s Motion for Summary Judgment. The fact statement is thirty-eight pages long and contains one-hundred-twenty-nine individually numbered paragraphs, all in addition to Plaintiffs twenty page Memorandum in Opposition which itself contains a factual statement section. Local Rules 56.1(c) and 7.3(d) provide that responsive briefs on motions for summary judgement are limited to twenty (20) pages. Local Rule 56.1(e) provides that a responsive brief should set out “the specific, authenticated facts existing in the record or set forth in accompanying affidavits that would be sufficient to support a jury finding of the existence of the disputed elements.” Plaintiffs “Statement of Specific Facts” greatly exceeds the applicable page limit mandated by the local rules of this Court. Further, the statement does not set forth facts which are not otherwise available in the record. Moreover, the facts the statement brings forth were largely presented in the Opposition Memorandum’s own statement of facts or alleged in the Complaint. The Court therefore finds that Plaintiffs “Statement of Specific Facts,” which was submitted along with its Response Memorandum in Opposition to Defendant’s Motion for Summary Judgment, violates the Local Rules and lacks any utility which would justify exempting it from the Rules. Accordingly, Defendant’s Motion to Strike is GRANTED and the statement is hereby STRICKEN from the record. B. Motion for Summary Judgment 1. Summary Judgment Standard Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is considered “material” if it “might affect the outcome of the suit under the governing law .... ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986). Under this standard, a genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. As a result, the Court will only enter summary judgment in favor of the moving party when the record “ ‘shows a right to judgment with such clarity as to leave no room for controversy’ ” and clearly demonstrates that the non-moving party “ ‘cannot prevail under any circumstances.’ ” Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir.1994) (quoting Phoenix Sav. & Loan, Inc. v. Aetna Cas. & Sur. Co., 381 F.2d 245, 249 (4th Cir.1967)). When ruling on a summary judgment motion, the Court views the evidence in the light most favorable to the non-moving party, according that party the “benefit of all reasonable inferences.” Bailey v. Blue Cross & Blue Shield of Virginia, 67 F.3d 53, 56 (4th Cir.1995), cert. denied, 516 U.S. 1159, 116 S.Ct. 1043, 134 L.Ed.2d 190 (1996). The moving party bears the initial burden of establishing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Catawba Indian Tribe of S.C. v. South Carolina, 978 F.2d 1334, 1339 (4th Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1415, 122 L.Ed.2d 785 (1993). Once the moving party has met this burden, the adverse, or non-moving party must set forth specific facts showing that there is a genuine issue for trial. Id. In so doing, the adverse party may not rest on mere allegations, denials, or unsupported assertions, but must, through affidavits or otherwise, provide evidence of a genuine dispute. Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12; Catawba Indian Tribe, 978 F.2d at 1339. In other words, the non-moving party must show “more than ... some metaphysical doubt as to the material facts,” for the mere existence of a scintilla of evidence in support of his position is insufficient to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Catawba Indian Tribe, 978 F.2d at 1339. In its Complaint Plaintiff levels six Counts against Defendant, Defendant moves for Summary Judgment as to each of them. The Court will address each in turn, although not in the order presented in the Complaint. 2. Count I — Breach of Contract/Breach of Joint Venture Agreement Plaintiff alleges that “ATL and VMI had a valid and binding contract that provided, inter alia, for (1) ATL to invest in VMI; (2) ATL to provide funding for VMI’s research and development as directed by ATL; and (3) the parties to develop jointly the VMI-ATL ultrasound machine.” (Compl., ¶ 57.) It is Plaintiffs position that the parties had a “deal” after the meeting on April 14, 2000, and that the Term Sheet documents their alleged agreement. (Compl., ¶ 28; Oxaal Dep., at 102, 138, 217; Bright Dep., at 127, 244-45, 285-86.) Defendant argues there is no genuine issue of material fact which would permit a jury to find that a binding agreement existed between ATL and VMI because, 1) even if there had been an agreement, it was too indefinite to be enforceable, and 2) even if a sufficiently definite and certain agreement had occurred, there was no requisite expression, by either party, of intent to be bound. (Brief in Sup. of Defs. Mot. for Sum. Judg., at 8-9.) Plaintiff responds by characterizing the arrangement it had with Defendant as an agreement to enter into a joint venture and, Plaintiff reasons, since a joint venture is a kind of partnership, the law of partnership governs the formation of a joint venture. (Pl.’s Memo, in Opp’n to Def.’s Mot. for Sum. Judg. (hereafter “PL’s Opp’n”), at 17.) Plaintiff argues, therefore, that a voluntary association of partners may be shown without proving an express agreement to form a partnership. (Id. at 17-18.) Plaintiff further contends that even where a defendant refuses to sign a written partnership agreement, the parties’ conduct may evince their assent and nevertheless form a partnership. (Id. at 17-18.) As this Count of the Complaint contains two claims for relief based upon a purported contractual relationship, the Court will address them separately. i. Breach of Contract — Express Agreement It is hornbook law that, to be enforceable, the terms of a contract must be sufficiently definite and certain. Lassiter v. Bank of North Carolina, 146 N.C.App. 264, 269, 551 S.E.2d 920, 923 (2001); Brooks v. Hackney, 329 N.C. 166, 170, 404 S.E.2d 854, 857 (1991). A contract “leaving material portions open for future agreement is nugatory and void for indefiniteness.” Boyce v. McMahan, 285 N.C. 730, 734, 208 S.E.2d 692, 695 (1974); accord Cheatham v. Ford Motor Co., 64 F.3d 656, 1995 WL 478021, at *3 (4th Cir.1995) (unpublished). In addition to setting forth its terms with the requisite level of certainty, to be enforceable a contract must contain an expression of mutual assent. That is, a manifestation of intent wherein “it is necessary that the minds of the parties meet upon a definite proposition. There is no contract unless the parties thereto assent, and they must assent to the same thing, in the same sense.” Horton v. Humble Oil & Refining Co., 255 N.C. 675, 679, 122 S.E.2d 716, 719 (1961) (quotations omitted). Although Plaintiff devotes an enormous amount of effort to the suggestion that the Term Sheet is a binding and enforceable agreement, the Court need not devote extensive analysis to this contention as it is thoroughly belied by the record. Statements of Plaintiffs own employees and investors indicate that the document was incomplete as to its terms and did not reflect a meeting of the minds. The examples of such statements are numerous and continuous over a long record of contact between the parties. Such examples of these statements begin as early as June 6, 2000, when one of VMI’s founders, Dr. Olaf Von Ramm wrote an email to Steve Grenon, a VMI VP and its Chief Technical Officer, and spoke about needing “to bolster our bargaining position with prospects, particularly ATL.” (Dep.Exh. 470.) This notion of incompleteness of the agreement is also evidenced in August 16, 2000, when Jim Mun-dell, VMI’s VP and General Manager wrote an email to principal VMI investors Bill Bright and Walter Wilkinson on the subject of employee compensation. In it he stated “I thought it was important to start thinking about this prior to reaching an agreement with ATL ...,” but that the topic could be discussed “further after the next round of negotiations with ATL.” (Dep.Exh. 281.) VMI’s concern about the lack of an agreement is also documented by a September 6, 2000 email from Mun-dell to various VMI employees, including Grenon, wherein Mundell stated “[w]e are at [a] critical juncture in the negotiations [with ATL] .... ” (Dep.Exh. 286) (emphasis supplied.) Mundell’s email also notes that VMI’s internal company policy on communication by VMI’s employees with ATL would “become less restrictive after we have negotiated our deal.” (Id.) Even more telling evidence of the non-existence of a binding contract is Mundell’s final statement in the email that “[a] deal is imminent! Or at least highly likely.” (Dep.Exh. 286.) As late as November 21, 2000, VMI’s concern about the lack of a deal is evident from Mundell’s email to Wilkinson in which Mundell states “[w]hat I think we all want to know is when can we negotiate a deal. Steve and I have voiced our concerns about having another meeting with ATL that does not start to bear fruit. We have been telling the employees, vendors, lenders and shareholders that as soon as Philips freed up the M & A people we could get our deal negotiated.” (Dep.Exh. 296.) This same concern about the lack of any real contract between the parties was expressed in Bright’s December 5, 2000 letter to ATL’s CEO Tim Mickelson where Bright states that “[a]t the time the term sheet was prepared, we recognized that while it outlined rather precisely the structure of a transaction, it was still subject to the negotiation of a final price” and that “we still expect to negotiate with you to arrive at a fair and mutually acceptable deal.” Further, with respect to what stage the parties were in, Bright proposed to have VMI representatives, at some time in the future, “meet with you [Mickelson] and/or your team to finalize a deal that is fair to both of us.” (Dep.Exh. 501.) Thus, the record plainly shows Plaintiff was well aware that its relationship with Defendant was one of ongoing negotiations and that the parties had not yet entered into a binding contract. Notwithstanding Plaintiffs numerous acknowledgments that the Term Sheet was not a final agreement, on its face the document itself cannot stand alone as a binding and enforceable contract. The document is fatally flawed in two respects: 1) it does not contain terms that are sufficiently definite to be enforceable, and 2) it does not contain the requisite expression of intent. As to the first area, definiteness, the most critical term on which the document is materially lacking is price. Plaintiff contends that a minimum price was set at $100 million, with potential graduated increases of $20 million to be determined by the number of units sold per year. (PL’s Opp’n at 18; Dep. Exh. 486.) The fact that the sales volume increment blanks, which were to determine when such tremendous price increases might potentially occur, were never filled in is, in and of itself, a major area of indefiniteness. Plaintiff in response attempts to rely upon a series of cases for the proposition that a promise to pay an amount certain plus an additional amount based on future profitability is enforceable for the minimum amount. See e.g. George A. Fuller Co. v. Brown, 15 F.2d 672, 677 (4th Cir.1926) (“The promise to increase the bonus if the profits on succeeding ships should exceed the profits on the Cranford was too vague and indefinite to form the basis of the right to recovery as to such increase, but this would not defeat the right to recover that which was definitely promised.”); Schloss v. Davis, 213 Md. 119, 124, 131 A.2d 287, 290 (1957) (“In the instant case we think the agreement as to price [expressed as a range] was not too vague to support recovery at the minimum figure.”); Fruth v. Gaston, 187 S.W.2d 581, 584 (Tex.Civ.App.-Austin 1945) (“If, in addition to the salary and 1% on gross sales, Gaston agreed to pay a percentage of net profits not to exceed five per cent and in no event not less than three, the law would imply a reasonable percentage within these limits; and such a promise, after Fruth had performed the services for which it was made, could not be construed as so indefinite and uncertain as to bar his recovery of any part thereof.”). These cases notwithstanding, a review of the Term Sheet shows that it fails to set forth even a definitive minimum amount for the contract price. The Term Sheet also lacks definiteness in describing the “initial investment [ATL was to make] in VMI to ‘retire agreed upon indebtedness.’ ” (Bright Decl., ¶ 24 (quoting Dep. Exh. 486, ¶ 2).) Plaintiff is correct that a contract is sufficiently definite if it contains a method for determining a term. Based on this concept Plaintiff asserts, with respect to the agreement to retire VMI’s indebtedness, that although no specific amount of debt was located on the Term Sheet, the debt was “easily ascertainable.” (Pl.’s Opp’n, at 19.) The Court finds, however, that nowhere in the document is the debt listed or a method for determining it described. Outside of being indefinite as to financial aspects, the Term Sheet is also materially-lacking as to what the parties’ respective duties would be. Under the Term Sheet the Product Development Program, presumably defining what the parties were to be jointly working on, was to be “described in Exhibit A (the ‘Product Development Agreement’).” (Dep.Exh. 486, ¶ 4.) No such exhibit exists or, if it does exist, it was not provided to the Court. Further, when referring to the “Program Product” itself, the Term Sheet states that it “needs to be defined .... ” (Id. ¶ 10.) The parties were also to “agree to milestones” and the Term Sheet generally lists the issues that such milestones would need to address, but it notes that “we need to work on the rest of this paragraph .... ” (Id. ¶ 6.) All these deficiencies in the document itself indicate that the Term Sheet was merely an agreement to agree which was drafted by the parties in contemplation of a future, final agreement. The document itself states as much, and provides yet another example of its incompleteness by prefacing a paragraph with the language “[u]pon execution of the definitive agreement, ATL and Volumetries shall jointly commence the Product Development Program (the ‘Program’) described in Exhibit A (the ‘Product Development Agreement’).” (Id. ¶ 4.) The second fatal flaw in the Term Sheet is that it does not contain the requisite expression of intent. On its face, the document contains no signatures or other in-dicia of acceptance or approval by either Plaintiff or Defendant. Further, Plaintiffs actions were not uniformly consistent with an intent to be bound. This is evident because Plaintiff never employed a lawyer to review or formalize any terms or provisions of the Term Sheet or to negotiate further with Defendant, and Plaintiff also entertained other opportunities for joint product development and/or corporate acquisition. (See Bright Dep., at 297 when asked “Did you ever ask any lawyer or accountant or business advisor to help you to draw up any kind of final documents between ATL and VMI?” Bright responded “No.”; see also Wilkinson Dep., at 17-18 indicating that VMI was not represented by legal counsel in its negotiations with ATL; and see Wilkinson Dep., at 283-84 discussing VMI’s talks with Kretz in July 2000 and stating that “we obviously had not closed the definitive agreement with ATL at that time, so we were not legally prevented from talking”; and Dep. Exh. 452 (same).) Additionally, the numerous occasions discussed above, wherein Plaintiff acknowledged the Term Sheet’s incompleteness, also serve to indicate that Plaintiff knew Defendant did not intend to be bound by the Term Sheet. (See Dep. Exhs. 470, 281, 286, 296, 501.) More importantly, Plaintiff was also aware that Defendant’s corporate parent, Philips Electronics, would have to approve any deal between the parties. (See Dep. Exhs. 296, 488.) Thus, the Term Sheet lacks any subjective indication of a meeting of the minds, and the surrounding circumstances do not provide any objective indication that the parties mutually assented to the document. As the Term Sheet is fatally flawed in two respects which prevent it from being a binding and enforceable contract, the Court finds that, as a matter of law, Plaintiff cannot prevail on its claim of a breach of contract based upon the Term Sheet of April 14, 2000. Thus, the Court concludes no genuine issue exists as to any material fact with respect to this claim and that Defendant is entitled to judgment as a matter of law on this claim of Breach of Contract. The Court will therefore GRANT Defendant’s Motion for Summary Judgment as to Plaintiffs claim for breach of an express contract as purportedly embodied in the Term Sheet. ii. Breach of Joint Venture Agreement — Implied Agreement The second claim contained within Count I alleges a breach of a joint venture agreement. Independent of the Term Sheet, Plaintiff characterizes the arrangement it had with Defendant as an agreement to enter into a joint venture. (Pl.’s Opp’n, at 17.) Plaintiff reasons that, since a joint venture is a kind of partnership, the law of partnership governs the formation of a joint venture. (Id.) Plaintiff therefore argues that a voluntary association of partners may be shown without proving an express agreement to form a partnership and, even where a defendant refuses to sign a written partnership agreement, the parties’ conduct may evince their assent and nevertheless form a partnership. (Id. at 17-18.) Plaintiff alleges that, pursuant to this arrangement, “the parties agreed to (1) work together to combine their technology and create a joint 2D/RT3D ultrasound machine ...; (2) share profits through an option if the machine were successful ...; (3) share losses (through loss of time and money) if the venture failed; (4) make modifications to the technology of both companies in order to make them compatible, demonstrating the ability, to some extent, of each side to control and influence the other’s work ...; and (5) jointly own the resulting intellectual property.” (Pl.’s Opp’n, at 17-18.) Quite recently the North Carolina Court of Appeals engaged in a close examination of the state’s law regarding joint ventures. The court concluded that “the essential elements of a joint venture are (1) an agreement to engage in a single business venture with the joint sharing of profits ..., (2) with each party to the joint venture having a right in some measure to direct the conduct of the other through a necessary fiduciary relationship.” Southeastern Shelter v. BTU, Inc., 572 S.E.2d 200, 204 (N.C.App. Dec.3, 2002) (quotation and citations omitted) (emphasis in original). The court elaborated on the second element by stating that it “requires that the parties to the agreement stand in the relation of principal, as well as agent, as to one another.” Id. at 205 (citation omitted). While the existence of a joint venture is often a question of fact for the jury to decide, the Southeastern Shelter case demonstrates that it may also properly be considered upon summary judgment as a question of law. Id. at 203 (reviewing trial court’s grant of summary judgment where, at trial level, “[djefendants argued they were entitled to summary judgment because the evidence, as a matter of law, failed to show the existence of a joint venture.”). As the basis for its claim of “Breach of Contract/Breach of Joint Venture Agreement” Plaintiff alleges in the Complaint that “ATL and VMI had a valid and binding contract that provided, inter alia, for (1) ATL to invest in VMI; (2) ATL to provide funding for VMI’s research and development as directed by ATL; and (3) the parties to develop jointly the VMI-ATL ultrasound machine.” (Compl., ¶ 57.) As discussed previously, no express contract existed for a number of reasons; thus, the sole remaining object of the alleged joint venture could only have been for “the parties to develop jointly the VMI-ATL ultrasound machine.” In working toward this goal, a “necessary fiduciary relationship” would have to have arisen between Plaintiff and Defendant in order for their relationship to qualify as a joint venture. The Court, however, finds that no fiduciary relationship existed between the parties. Plaintiff alleges “[a] fiduciary relationship existed between VMI and ATL by virtue of all the facts and circumstances of their relationship, including ATL’s agreement to acquire VMI; and its representations that the company was going to be folded into ATL; and that VMI should therefore function substantially as an ATL division—by working at ATL’s direction and providing ATL with all its valuable proprietary and non-public information— pending completion of all the acquisition formalities.” (Compl., ¶ 82.) Defendant responds by arguing that “there are no facts in this case warranting a finding that ATL had such a relationship with VMI.” (Brief in Sup. of Def.’s Mot. for Sum. Judg., at 17.) Defendant further contends the parties “were business entities discussing and preparing for future negotiations” and “were operating at arms-length .... ” (Id.) Plaintiff responds with a twofold argument. First, Plaintiff contends that “VMI and ATL were joint venture partners and thus each others’ fiduciaries as a matter of law.” (Pl.’s Opp’n, at 14) (quotation omitted.) Second, Plaintiff argues that “partnership aside, other facts support a finding of a fiduciary relationship, which can exist under a variety of circumstances in which there is confidence reposed on one side, and resulting domination and influence on the other.” (Id.) (quotation omitted.) Defendant replies by contending that the facts cited by Plaintiff in support of its fiduciary duty claim are unsubstantiated, and, Defendant argues that Plaintiffs reasoning is contrary to controlling authority. (Def.’s Reply to Pl.’s Opp’n, at 5.) Courts have been reluctant to conclusively define the term “fiduciary relationship.” Abbitt v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931). In general, such a relationship may exist “where there has been a special confidence reposed in one 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 .... [I]t extends to any possible case in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side, and resulting domination and influence on the other.” Id. The concept of “domination and influence,” or, “superiority and influence” as it is sometimes labeled, does not necessarily equate to a party’s size. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 348 (4th Cir.1998) (citing Lazenby v. Godwin, 40 N.C.App. 487, 253 S.E.2d 489 (1979)). “[SJize ... is not a reliable indicator of strength or influence. Nor is it what North Carolina courts mean by superiority. Only when one party figuratively holds all the cards-—all the financial power or technical information, for example— have North Carolina courts found that the ‘special circumstance’ of a fiduciary relationship has arisen.” Id. In addition, in examining the issue the Fourth Circuit has pointed out that “[a] fiduciary bears the extraordinary obligation ... never to place his personal interest over that of the persons for whom he is obliged to act .... [Tjhese obligations are out of place in a relationship involving two business entities pursuing their own business interests, which of course do not always coincide.” Id. (quotation omitted). The existence of a fiduciary relationship is often a question of fact for the jury. Rhone-Poulenc Agro S.A. v. Monsanto Co., 73 F.Supp.2d 540, 546 (M.D.N.C.1999) (citing Speck v. North Carolina Dairy Found. Inc., 64 N.C.App. 419, 423, 307 S.E.2d 785, 789 (1983), rev’d on other grounds 311 N.C. 679, 319 S.E.2d 139 (1984)). However, the issue may be couched as a matter of law, and as such, this Court has found that a fiduciary relationship may not necessarily be present even though a Plaintiff has alleged “ ‘special circumstances’ resulting in one party having ‘superiority and influence’ over the other.” Id. “In North Carolina, no fiduciary relationship exists between mutually interdependent businesses with equal bargaining positions who dealt at arms-length.” Id. (citing Tin Originals, Inc. v. Colonial Tin Works, Inc., 98 N.C.App. 663, 391 S.E.2d 831 (1990); Stone v. McClam, 42 N.C.App. 393, 257 S.E.2d 78 (1979)). Before going forward to a jury, a court may examine the evidence and, even applying the “broad standard” set forth in Abbitt v. Gregory, may decide “the evidence [is] insufficient to submit to the jury the issue of whether a fiduciary relationship exist[s] .... ” Tin Originals, Inc. v. Colonial Tin Works, Inc., 98 N.C.App. 663, 666, 391 S.E.2d 831, 833 (1990). For example, as a matter of law, no fiduciary relationship was found between a manufacturer and its exclusive distributor, Tin Originals, 98 N.C.App. at 665-66, 391 S.E.2d at 832-33, nor between a franchisee and its franchisor. Broussard, 155 F.3d at 347-49. The first half of Plaintiffs argument, wherein it contends that because VMI and ATL were joint venture partners they were therefore each others’ fiduciaries as a matter of law, misconstrues the requirements for a joint venture. A joint venture cannot exist without a “necessary fiduciary relationship.” Southeastern Shelter, 572 S.E.2d at 204 (emphasis in original). Therefore, the Court must first examine whether a fiduciary relationship in fact existed in order to determine whether a joint venture could then have arisen between the parties. The second half of Plaintiffs argument is that it “reposed confidence in ATL, which resulted in ATL’s dominance and influence over VMI.” (Memo in Opp’n, at 15.) In support, Plaintiff lists nine reasons why a jury could “find that ATL owed VMI a fiduciary duty .... ” {Id. at 14.) The Court will address each in turn. First on this list is Plaintiffs contention that “ATL knew that VMI was in a vulnerable financial position and needed to move quickly to finalize a strategic partnership.” (Id.) Plaintiffs evidence indicates that it was in an unhealthy financial state at the time of its discussions with Defendant, and that it readily admitted as much to Defendant. (See e.g. Soquet Dep., at 170-72; Bright Decl., ¶ 6.) However, this disclosure does not indicate that Defendant held “all the cards—all the financial power or technical information,” as North Carolina law requires. If, as a matter of law, based upon the facts in Brous-sard, “mutually interdependent businesses” who “deal at arms length” cannot be fiduciaries, then Plaintiff and Defendant, who at all times remained independent businesses and dealt at arms length, plainly cannot be considered fiduciaries either. See e.g. Broussard 155 F.3d at 347 (finding that, in a case where ten owners of Meineke Discount Muffler franchises sued franchisor Meineke Discount Muffler Shops, Inc., “[t]he district court erred by allowing plaintiffs to advance their claims for breach of fiduciary duty when there is no indication that North Carolina law would recognize the existence of a fiduciary relationship between franchisee and franchisor.”)' Second, Plaintiff argues that “[t]he parties agreed upon and executed a plan to build a joint 2D/3D ultrasound machine.” (PL’s Opp’n at 14.) Plaintiff cites the Term Sheet (Dep.Exh. 486) in support of its belief that a fiduciary relationship was created. As previously discussed, the Term Sheet contains various material inadequacies as to the nature of any conceivable “plan” and was not an enforceable agreement between the parties. Consequently, this alleged reason does not support the finding of a fiduciary duty. As a third reason Plaintiff states, “ATL and YMI exchanged highly proprietary information throughout the relationship not typical in an arms-length transaction.” (Id) As discussed below, this sharing of information occurred pursuant to a mutual non-disclosure agreement, which the parties entered into at the outset of their discussions. (See Dep. Exh. 396.) The Mutual Non-Disclosure Agreement between the parties was specifically executed in contemplation that the parties would be sharing information that was “proprietary and confidential in nature ....” (Id) The agreement states that, with regard to such information, “the receiving party shall safeguard such CONFIDENTIAL INFORMATION obtained from the disclosing party to the same degree that it safeguards confidential information pertaining to its own business and operations.” (Dep. Exh. 396) (emphasis in original.) Thus, any obligation between the parties that might have arisen as a result of their sharing of information was defined by this document, not by fiduciary principles allegedly arising outside it. See Broussard 155 F.3d at 347 (“ ‘[Pjarties to a contract do not thereby become each others’ fiduciaries; they generally owe no special duty to one another beyond the terms of the contract and the duties set forth in the U.C.C.’ ”) (quoting Branch Banking and Trust Co. v. Thompson, 107 N.C.App. 53, 61, 418 S.E.2d 694, 699 (1992)). The fourth, fifth, sixth, and seventh reasons all allege that Defendant had some manner of control over Plaintiffs day-today operations and business decisions. Specifically, Plaintiff contends that “[4] ATL directed the work of VMI’s engineers, [5] ATL approved the compensation package of VMI’s engineers so that the two parties’ packages would be ‘compatible’ and ‘equitable,’ [6] ATL approved VMI’s budget and engineering resources schedule, [7] ATL approved new hires VMI needed to complete the joint work on ATL’s timetable.” (Pl.’s Opp’n at 14-15.) Beginning with reason number four, Plaintiffs references in support of this rea