Full opinion text
Opinion and Order Granting in Part and Denying in Part the Defendants’ Motion for Summary Judgment: Granting in Part and Denying in Part Summary Judgment to Beard on Counts 1 and 4 (Breach of Fiduciary Duty and Duty of Loyalty) (Breach of Contractual and Common-Law Duties of Confidentiality) (“Deemed” Claim under Michigan Uniform Trade Secrets Act); Granting Summary Judgment to Beard & Allen on Count 2 (Intentional Misrepresentation / Fraud); Granting Summary Judgment to Boat-right, Boatright Enterprises, & Beard on Count 3 (Tortious Interference with Contract); Granting Summary Judgment to Defendant Beard on Count 5 (Spoliation of Evidence); Granting Summary Judgment to Consumers Energy on Count 6 (Breach of Contract); Granting in Part & Denying in Part Summary Judgment to Consumers Energy on Count 7 (Vicarious Liability); Granting in Part & Denying in Part Summary Judgment to All Defendants on Count 8 (Civil Conspiracy) PAUL L. MALONEY, District Judge. This is a diversity action arising out of a contract between plaintiff Appalachian Railcar Company (“ARS”) and defendant Consumers Energy Company (“Consumers”) regarding railcar-maintenance at Consumers’ Campbell Electric Generating Station in West Olive, Michigan. After about two and half years, ARS exercised its contractual right to unilaterally terminate the contract. Consumers solicited and received several bids for the work, including a bid by ARS, and it awarded the new contract to defendant Shane Boatright’s company Boatright Enterprises (collectively “Boatright”), which then hired Matthew Beard, who had been managing the West Olive shop for ARS. The fifth defendant is Consumers senior engineer Craig Allen (“Allen”). ARS asserts claims against Beard for breach of contractual and common-law duties of loyalty and confidentiality and spoliation of evidence; against Beard and Allen for intentional misrepresentation; and against Beard and Boatright for tor-tious interference with contract. ARS seeks to hold Consumers directly hable for breach of contract, and vicariously liable for the actions of its senior engineer, Allen. Finally, ARS seeks to hold all defendants liable for civil conspiracy. Essentially, ARS alleges that the defendants conspired to induce it to terminate the contract, partly by misleading it to believe that it would win a new contract that offered a higher labor rate. Consumers characterizes ARS’s theory of the case as follows: Instead of accepting the consequences of its decision to terminate the Consumers contract in an unsuccessful effort to increase its profits, ARS has invented an incredible conspiracy theory to shift the blame elsewhere. Under this theory, ARS alleges that Beard, Boatright, and Allen were “good friends,” and that as a result of this supposed friendship, they decided to manufacture disputes between Consumers and ARS as a pretext to trick ARS into terminating the contract. As part of this complex scheme, according to ARS, Defendants somehow rigged the rebid process for a multimillion dollar contract with a public utility to ensure that the contract would be awarded to Boatright Enterprises. MSJ at 13. Consumers maintains that ARS “refuses to accept responsibility for its voluntary business decision to terminate the Consumers contract,” and they point to ARS President and CEO Kurt Higginbotham’s alleged “admission] that ARS terminated the Consumers contract of its own volition in order to increase its profit, knowing that it very well could lose the contract through the rebidding process, which it did because of the high bid ARS presented.” MSJ at 1. Finally, Consumers contends that even if it had engaged in such a conspiracy with the other defendants, ARS still cannot sustain any of its causes of action. MSJ at 14. All five defendants jointly moved for summary judgment. The motion has been fully briefed, and this court heard oral argument on February 1, 2008. For the reasons that follow, the court will grant in part and deny in part the defendants’ motion for summary judgment. The court will grant summary judgment to former ARS employee Matthew Beard on counts one and four to the extent that they allege breach of his common-law duty of confidentiality, to the extent that such a claim is preempted by the Michigan Uniform Trade Secrets Act (“MUTSA”). The court will deny summary judgment as to the remainder of counts one and four, which claim that Beard breached his common-law fiduciary duty, common-law duty of loyalty, and contractual duty of confidentiality, as such claims are not preempted by MUTSA under the circumstances. The disposition of said counts leads the court to grant in part and deny in part summary judgment on count 8, civil conspiracy by all five defendants. The court will grant summary judgment to all defendants on count 2 (intentional misrepresentation / fraud), count 3 (tor-tious interference with contract), count 5 (spoliation of evidence), count 6 (breach of contract). Finally, the court will grant summary judgment to defendant Consumers Energy on count 7 (vicarious liability) as to any misconduct by defendants Beard, Boat-right, and Boatright Enterprises. The court will deny summary judgment on this count, however, as to any conspiracy by its employee Craig Allen. Background The Contract. Consumers has a fleet of over 2,000 railcars that it leases to bring fuel to its power plants. It maintains a railcar repair shop in West Olive, Michigan, and hires outside contractors to provide repair services at the shop. Deposition of Defendant Craig Allen dated May 31, 2007 (“Allen”) at 9-15. In September 2002 it awarded a contract to ARS. Am. Comp. ¶ 10; Allen at 17-18; Aug. 9, 2006 Deposition of Warren K. Higginbotham (“Higginbotham”) at 163-65. The contract provided, in pertinent part, that ARS agreed to furnish all supervision, labor, equipment, services, transportation and tools, and unless otherwise specified by Consumers, all materials and parts, necessary to perform for Consumers inspection and/or maintenance and/or repair of railroad cars ... which are owned by or leased to Consumers, as may be requested by Consumers from time to time during the term of this Contract, at various locations to be specified by Consumers. Contract § 1(a). In return, Consumers agreed to pay ARS $31.20 per worker-hour (with annual increases) and the actual price of ARS-supplied parts plus a 15% mark-up. Contract § 3. Consumers characterizes the contract as a “requirements” contract and notes that it does not mention additional compensation for overtime (“OT”) work done by ARS to complete the work required. MSJ at 3. The contract provided that it “may be terminated by either party at any time during its initial term or any time during any renewal term thereafter upon forty-five (45) days’ prior written notice to the other party,” see Contract § 2(b), and ARS’s CEO testified that he knew that either party could terminate the contract at any time without giving any reason for doing so, see Higginbotham at 186. The Roles of ARS Site Manager Beard and Consumers Senior Engineer Allen. The contract was administered on behalf of Consumers by its senior engineer, defendant Craig Allen (“Allen”), Am. Comp. ¶ 12 and Ans. ¶ 12, who conducted monthly audits of ARS’s bills during the first two years of the contract and made annual visits to ARS’s facilities for more in-depth audits, Am. Comp. ¶ 15. ARS alleges that when ARS sent its first bill to Consumers, Allen questioned the bill and asked ARS to use an alternative means of calculating the price to be charged for a type of work known as wheel-set repair, and that ARS agreed. Am. Comp. ¶¶ 13-14. Sometime in 2001, before the contract started, ARS hired defendant Matthew Beard, who signed a confidentiality agreement stating that “information about [ARS]’s business, its employees or its clients will only be released to people or agencies outside the company with [ARS’s] written consent.” Am. Comp. ¶¶ 17-18 and Ans. ¶ 17. Beard’s duties included management of a facility that ARS established at the Consumers plant in West Olive. Am. Comp. ¶ 19 and Ans. ¶ 19. At some point during the contract period, Beard became friendly with Allen and Boatright. See Am. Comp. ¶¶ 20-21; Ans. ¶20 (“Defendants admit that Mr. Beard and Mr. Allen have attended NASCAR races and the Indianapolis 500 together.”); ARS Opp’n Ex 20 (on May 2005 application for job with Boatright’s company, Beard listed his relationship to Boatright as “friend”). The Building Addition. About two years into the contract, in September 2004, ARS personnel and Consumers employee Allen attended a Railroad Safety Institute (“RSI”) convention in Chicago. Am. Comp. ¶¶ 23-24; Ans. ¶24. During the convention, Allen met with ARS management and proposed that ARS, at its own expense, build an addition to the West Olive railcar repair (“the Building Addition”), and that ARS rejected the proposal as financially infeasible, eliciting a negative reaction from Allen, who continued to press the proposal. Am. Comp. ¶¶ 25-28. Consumers explains that the facility improvements urged by Allen were intended to enhance working conditions by keeping snow out of the shop, thereby increasing worker productivity. Such increased productivity, Consumers claims, would have benefitted both Consumers (by increasing the number of railcars repaired) and ARS (by increasing its profit). MSJ at 5 (citing Allen at 55 and 72). ARS contends that the contract “did not require or contemplate” that ARS would be required to construct such an addition, and, more generally, that the contract recognized ARS’s status as an independent contractor with the right to choose its own means of achieving the results required by the contract. Am. Comp. ¶ 32. ARS did not believe that it could turn a profit on the contract if it built the addition without compensation, and Consumers typically did not offer compensation when the topic arose. See ARS Feb. 8, 2008 Filing, Ex J (undated notes that ARS claims is an outline prepared by Higginbotham and Zoller in preparation for a discussion about modifying the contract to enable ARS to afford the building addition; “Construct and pay for a new building with no guarantees of increased business to generate revenues to cover the cost of the building.”). Allen initially included this Building Addition as part of Consumers’ RFP. See Allen at 53. That earlier version of the RFP would have asked bidders to offer two labor rates: a “straight” labor rate that did not contemplate improvements to the West Olive facility, and an “inflated” labor rate that would apply if the bidder chose to incur the expense of building the desired improvements. See MSJ, Ex. E (ARS Bid Package) at 53-55. Consumers dropped the building-addition request, and the corresponding inflated labor rate option, from the draft RFP before its issue. In other words, the RFP to which ARS responded in 2002 did not offer the winning bidder the option of a higher hourly labor rate as compensation if it elected to construct an Addition. The parties agree that at the same September 2004 trade show, ARS and Allen discussed a proposal, see MSJ Ex. F (Proposal dated Jan. 11, 2005), whereby ARS would finance and construct the Addition in exchange for an extension of the existing contract. See Allen at 52; Higginbotham at 204-05; Deposition of ARS Vice-President of Sales and Marketing John Zoller dated August 10, 2006 (“Zoller”) at 93. ARS told Allen that it would not finance the Addition unless Consumers offered a higher hourly rate rather than merely an extension of the existing contract, and Consumers refused. See Allen at 58-60 and Higginbotham at 206. The parties were never able to reach an agreement regarding the Addition. See Higginbotham at 210. ARS believes that Consumers used the Addition as a pretext to induce ARS to terminate the contract. Consumers responds by pointing to ARS VP Zoller’s testimony that he believed Allen honestly thought ARS would earn more profit if it financed the Addition. See MSJ at 6, quoting Zoller at 94 (stating that Zoller had “no doubt” in his mind that “[Allen] thought ARS would make more money if [ARS] built this new building”). ARS Receives Excellent Performance Review for 2004-, Consumers’ Fuels Transportation and Planning Director Brian Galloway, who was senior engineer Allen’s supervisor, testified that ARS achieved 98.87% railcar availability for 2004, which represented superior performance: Q. Okay. Under the first category of “Railcar Availability,” the level of achievement is “Exceptional”: ‘Tear end availability of 98.87 percent was above the stretch goal of 98.33 percent.” Am I correct that stretch goal means that you set a high goal in the first place and exceeded that goal? A. The stretch goal is a higher level than the — what would considered a fully effective target. Yes. Q. Okay. And that goal was exceeded for railcar availability in 2004? A. The measure of that, yes. * * * Q. * * * [U]nder Number 5, “Railroad to Repair Facility Maintenance Ratio,” it has a level of achievement below [“]target[”]: “There was an improvement in the aggressive goal of 17.5 percent from 2003 performance. 2003 was 33.2 and 2004 was 28.8.” Can you explain to me one more time what it is you’re trying to achieve here with that goal? Because you’re shooting for a lower number each time, right? A. Yes, we’re trying to get the — as much maintenance as possible performed at the rail repair facility. ARS Feb. 8, 2008 Supp. Filing, Ex H.l (Oct. 24, 2007 Galloway Dep) at 17:12 to 19:10. Late 2004 to Early 2005: Disagreement over Alleged Railcar Repair Backlog and OT Consumers states that in late 2004 and early 2005, several issues came to a head. Most importantly, Allen told ARS that it needed to increase its output to get rid of a growing bacMog of cars to be repaired by either having its employees work overtime or by hiring more employees, but ARS resisted because it believed that would cut too deeply into its profit margin. ARS alleges that Craig Allen manufactured these issues as a pretext to induce ARS to terminate the contract. The undisputed evidence does not support this assertion. Instead, it shows that Allen made every effort to work with ARS (specifically with Higginbotham, Vice President of Sales and Marketing John Zoller, and COO Jay Phillips) to resolve these issues in a mutually beneficial manner and that ARS ultimately felt that it was in its best interest to terminate the contract. MSJ at 4; see also Am. Comp. ¶ 31 (in early 2005, Allen asked ARS to perform OT work that ARS considered excessive). Consumers alleges that at one point in late 2004, the backlog of railcars needing repair at West Olive reached 106 cars. MSJ at 8, citing Allen 86 and 129. Galloway had made it clear that if ARS did not reduce the backlog, Consumers would send rail-cars to another repair facility. MSJ at 8-9, citing Allen 130-31 and Ex. K (Allen’s March 14, 2005 Notes) ¶ 8. Sometime in the fall 2004, ARS sent some cars from West Olive to be repaired at another ARS facility. Consumers, however, told ARS that the quality and timeliness of the repairs done at the other plant were unacceptable. MSJ at 9, citing Ex L. In early 2005, Allen told ARS that it needed to increase its productivity to remedy the backlog of railcars in need of repair. MSJ at 9, citing Allen 85-86, Higginbotham 210-11, and Zoller 105-06. In a February 2005 meeting, Allen suggested to ARS’s Jay Phillips that ARS should catch up on the backlog by having its existing employees work OT or by hiring additional workers; he followed up with a March 3 e-mail and spreadsheet trying to convince ARS that it would profit by working the OT. MSJ at 9 (citing Ex. M at item no. 3 and Ex. N). ARS responded that it would not work OT unless Consumers paid extra for it, Ex. B at 211. Consumers complains, “ARS has admitted that the contract required ARS to do all the work that Consumers needed at the specified labor rate,” MSJ at 9 (citing Ex. D at 105-06). Consumers admits that Allen mentioned the possibility of ARS cancelling the contract and proposing a new contract that would compensate the contractor for OT. MSJ at 9 (citing Ex. A at 127-28). Consumers rejects any suggestion, however, that asking ARS to work OT was a pretext to induce ARS to terminate the contract. Consumers argues, Only after ARS demanded additional compensation not available under the current contract did Allen explain that such compensation was not available under the current contract, and that the only way ARS could get paid for working overtime was to terminate the existing contract and win the rebid under those terms. MSJ at 10. In that vein, Consumers points to Higginbotham’s testimony that (1) he was not under duress when he decided to terminate the contract, (2) ARS bid for a new contract because it wanted a higher labor rate, (3) he knew that ARS could lose the re-bid and was “comfortable” with that possibility, and (4) he had received “no guarantee” from Consumers that ARS would win the re-bid. MSJ at 10-11 (quoting Ex. B at 242-44, 218, 246-47).' Consumers also points to Zoller’s testimony that there was no guarantee that ARS would win the re-bid. MSJ at 11 (citing Zoller at 210). Late 200k to Early 2005: Disagreement over Wheel-Set Charges. In early 2005, Allen orally told ARS that it had overcharged Consumers for wheel-set repairs; he repeated this statement in a letter dated March 1, 2005. See Am. Comp. ¶ 29; Ans. ¶ 29; MSJ Ex. G (Allen letter). ARS maintained then, and now, that it had used the billing formula required by Allen to determine the price for wheel-set repairs, and therefore it had not overcharged. See Am. Comp. ¶ 30. Consumers addresses the wheel-set issue by going back to pre-contract negotiations in September 2002. Consumers notes that the contract entitled ARS to cost-plus-15% for all parts, and that eost-plus-15% for a wheel set at that time amounted to only $684.25. See MSJ at 7 (citing Ex. G). In September 2002, ARS and Consumers agreed to pay ARS $800 for each wheel set; that covered the cost-plus-15% ($684.25) and an additional $115.75 to reimburse ARS for a surcharge it would have to pay the wheel-set supplier. Id. According to Consumers, in January 2003 Allen, having forgotten that he had already built in the surcharge to the base price of the wheel sets several months earlier, agreed to place an additional $200 premium on the scrap wheel price, [citing Allen 93 and Ex G (Allen March 1, 2005 letter) ] Thus, while ARS was only being charged a single $200 scrap surcharge by [wheel set supplier], Consumers was paying $315.75 to compensate ARS for that surcharge, thereby giving ARS a windfall to which it was not entitled under the contract. In December 2004, Allen first discovered that Consumers had inadvertently left in the $115.75 premium on the price of the wheels, while also reimbursing ARS for the $200 [scrap metal] surcharge, [citing Allen 90-91] In January 2005, Allen wrote to ARS’s accountant, and informed ARS that the wheels from that point forward were to be invoiced at the cost plus 15% rate, and should not include the additional $115.75 per wheel set. [citing MSJ Ex. H (Allen Jan. 25, 2005 e-mail to ARS) ] After investigating what happened, Allen brought this issue to the attention of ARS management and requested a refund of the extra $115.75 per wheel set it had been paying since 2003, which totaled approximately $200,000. [citing MSJ Ex. G (Allen March 1, 2005 letter) and Zoller 135] ARS denied that it owed Consumers any refund for the wheel sets, although it did not provide Allen with any basis for its denial. Indeed, after Allen made ARS aware of the issue, ARS stopped double-charging Consumers for wheel sets, [citing Allen 97] MSJ at 7-8. ARS alleges that during the discussions about the alleged overcharges in February and March 2005, both Consumers employee Allen and ARS employee Beard suggested to ARS’s senior management that ARS exercise its right to terminate and rebid for the work at a different rate. The defendants deny this. Contrast Am. Comp. ¶¶ 33-35 with Ans. ¶¶ 34-36. Marchr-April 2005: ARS Terminates the Contract and Loses the Re-Bid to Boatright On March 25, 2005, ARS e-mailed Consumers a notice that it was terminating the contract, Am. Comp. ¶ 37 and Ans. ¶ 37, effective in forty-five days. ARS’s termination letter asked Consumers to consider it for “any new RFPs and/or bids for railcar maintenance .... ” MSJ Ex. O. That same day, Allen sent an RFP to ARS, Boatright, and several other companies, stating that bids for a five-year contract were due on April 15 and Consumers would select a winner by April 22. Am. Comp. ¶ 38; Ans. ¶ 38; Allen 159-61; and MSJ, Ex. P (copies of letters requesting RFPs). Also that same day, Boatright Enterprises (an Alabama corporation) applied for a certificate of authority to conduct affairs in Michigan. See Am. Comp. ¶ 39; Ans. ¶ 39. In April 2005, Higginbotham flew to Michigan to meet with Allen, who asked him to sign a printed version of the ARS termination letter; Higginbotham did so. Am. Comp. ¶¶ 42-43. Allen then suggested negotiating the alleged overcharge from $200,000 down to $25,000. Am. Comp. ¶¶ 43^14. ARS alleges that its employee, Beard, provided confidential and proprietary information to Boatright so that Boatright could undercut ARS’s bid, Am. Comp. ¶¶ 53-55. As proof of Beard’s collaboration with Boatright, ARS alleges that while Beard was still employed by ARS, he “arranged, using Boatright Enterprises’s credit, to lease a truck in his [anticipated future] role as facility manager for Boat-right Enterprises.” Am. Comp. ¶ 61. ARS also alleges that Beard installed software on ARS computers and erased certain documents and communications, such as e-mails by which Beard sent confidential and proprietary information to Boatright Enterprises. Am. Comp. ¶¶ 67-68 (denied by Ans. ¶¶ 67-68). Consumers awarded the new contract to Boatright’s recently formed affiliate, which then hired Beard to manage West Olive. Am. Comp. ¶¶ 56 & 62; ARS Sur-Reply, Ex B (Deposition of Matthew L. Beard dated Aug. 7, 2006 (“Beard”) at 173 to 174) and Ex C (Deposition of Rush Shane Boat-right dated Aug. 8, 2006 (“Boatright”)) at 11. Consumers alleges that Beard’s salary stayed the same, at about $50,000 per year. MSJ at 12, citing Ex. Q (Beard) at 156 to 157. Boatright submitted the lowest bid, Transco the second-lowest, and ARS the third-lowest. Consumers has provided, without contradiction from ARS, the following comparison of the bids: Boatright • Labor Rate comparison shows that Boatright is below TRANSCO by $89,180.81 over the life of the contract, or $17,836.16 per year. Boatright is below ARS by $205,340.81 ..., or $41,068.16 per year. • High volume material ... Boatright is below ARS by $10,146.61 over the life of the contract and below TRANSCO by $309,170.06 .... • If overtime is required, Boatright will not charge time and a half. Appalachian Railcar Services, Inc. • ARS placed third in the bid evaluation. • ARS bid the highest Labor Rate. • ARS will charge overtime at time and one half .... MSJ, Ex. S (Allen Memo to W.E. Garrity & B.D. Galloway dated Apr. 22, 2005) (boldface added). ARS filed a complaint with Consumers, asking it to re-evaluate the re-bid and to investigate Allen’s conduct in connection with the termination and re-bid. Consumers contends that it conducted an investigation and found that Allen had done nothing improper, while ARS maintains that Consumers failed to conduct a thorough investigation. See Am. Comp. ¶¶ 64-66; Ans. ¶¶ 64-66. Finally, Consumers alleges that in early April 2005 — after ARS terminated the contract but before the new contract had been awarded — ARS and Allen agreed that ARS would repay $25,000 in installments to Consumers to resolve the dispute over wheel-set charges. MSJ at 8, citing Allen 104-06 and Ex. I (ARS CEO Higginbotham e-mail dated April 22, 2005). Consumers alleges that after it awarded the new contract to Boatright, ARS refused to honor the alleged compromise. MSJ at 8. Consumers decided not to pursue repayment of the wheel-set settlement amount from ARS. MSJ Ex. J (Allen email to Higginbotham dated July 25, 2005). Evidence that Even Before ARS Terminated, Allen, Beard, and Boatright Expected and Planned for Consumers to Hire Boatright ARS alleges that sometime during the first two years of the ARS-Consumers contract, Beard, Allen, and Boatright began “plotting” for Boatright’s company (Boatright Enterprises) to take over the contract. See Am. Comp. ¶ 22. ARS points to Allen’s handwritten notes dated March 21, 2005, which was four days before ARS terminated. Allen’s note from that date reads, in its entirety: 3/21/05 MATT 1. Looks like a) 3 weeks to respond to “RFP” b) 1 week to evaluate c) 2 weeks to set up If ARS doesn’t win[,] who does it go to 2. What tools & parts would be bought from ARS? -» Air compressor? a) Will have to have electrician unhook b) Fork truck 3. How long will it take to start working cars? What will the structure be (company) Boatright Ent., Inc. can sign contract. Then assign to another company if needed. 4. 5. Met Shane [Boatright] at RSI [Railroad Safety Institute] Show ARS Opp’n, Ex 22 (emphasis added). Allen testified that this last item was a “question” to himself as he tried to recall when he first met Boatright, and that in fact he realized that Boatright had not been at the RSI show in Chicago in late 2004. See Consumers Supp. Filing, Ex A (Allen) at 145:1-14 and 148:3-19. A reasonable factfinder could disbelieve Allen’s claim on this score, however, particularly given that Allen’s note item number 5 was phrased as a declaration, not a question. ARS points to a spreadsheet Allen prepared on March 23, 2005, two days before ARS terminated. The spreadsheet estimated how much the new contractor would have to pay for sixteen items per hour, workday, week, month, and year. The expenses were: straight-time average [wage], FICA tax, Medicare tax, holiday pay, consumables, fork truck, backhoe, air compressor, supervisor-Matt, new Ford crew cab, secretary, Alabama employee, S 10, welders, health and liability and other insurance, and “expense account.” ARS Opp’n Ex 23. Allen’s spreadsheet contains a note reading, “Matt: Think of every expense you can. See if estimate is accurate. If not, raise the estimate.” Id. ARS believes that the March 23, 2005 Allen spreadsheet entry for “Supervisor-Matt” is material because it reveals Allen’s plan to have Consumers award the new contract to Boatright, and his understanding that Boatright would then hire Matt Beard away from ARS to continue supervising West Olive. Beard himself testified that he thought the Allen spreadsheet entry for “Supervisor-Matt” referred to him. See Beard 152:23 to 153:16. Likewise, ARS believes that the spreadsheet entry for “Alabama employee” is material because it reveals Allen’s plan to have Consumers award the new contract to Boatright, an Alabama corporation. See Beard 154:4-9 (Beard acknowledges Boat-right’s home office is in Alabama). Allen testified that the Alabama company referred to was not Boatright but Progress, which was ARS’s predecessor contractor at West Olive. ARS contends that Allen’s explanation is not credible because Consumers had experienced extreme management and quality problems with Progress which had pulled out months early in 2002, necessitating a 15-day start-up for ARS. [Ex. 4, Allen, at 208]. Mr. Allen claimed not to recall whether he ever spoke with Progress Rail about Matt becoming an employee there. [Ex. 4, Allen, at 209]. It is unlikely that he would have done so. In 2002, Mr. Allen had told Higginbotham that he was dissatisfied with Progress for many reasons, including safety concerns; injuries; shop conditions; lack of proper tools to safely do the work; theft by Progress employees; quality of work performance; frequent firing of on-site supervisors; inadequate staffing, and failure of management to call on him or satisfactorily respond to his various concerns. [Ex. 1, Higginbotham at 156-57]. No documents have been produced evidencing any bid by Progress Rail in 2005, and, Mr. Allen himself claims that only ARS, Boatright Enterprises and Transco Rail Services bid on the contract. Moreover, in light of Mr. Allen’s document entitled “MATT,” authored two days earlier and contemplating that “Boatright Ent.” could sign the contract, Mr. Allen’s testimony on this point is not credible. Similarly incredible is his testimony that the note to “Matt” on his March 23, 2005 spreadsheet was not a note to Matt Beard. ARS Opp’n at 18-19 n. 9. ARS believes that the March 23, 2005, (two days before ARS cancelled) Allen spreadsheet entry for “new Ford crew cab” is material because it reveals Allen’s intent to reward Beard with a new Ford truck once ARS was induced to terminate and was replaced with Boatright. Beard himself testified that the “new Ford crew cab” entry “probably” referred to “the one I’ve got now”; he confirmed that he meant the truck leased from the Redeker Ford dealership in Grand Haven. See Beard 153:20 to 154:3. ARS introduces documents from that Ford dealership showing that Beard leased a new Ford truck on Boatright’s credit even before he resigned his employment with ARS. See ARS Opp’n, Ex 30. The lease pertained to a “new” 2005 Ford F-250 (mileage 779) valued at over $44,000, and it required monthly payments of $754 for three years, with the first payment due on April 28, 2005. Id. The lease stated that the vehicle was for “personal” use, but next to Beard’s signature are handwritten entries reading “Boatright Enterprises Inc” (on the left) and “Agent” (on the right). Id. The implication is that the “Boatright Enterprises Inc” and “Agent” entries are in Beard’s handwriting, but ARS does not expressly allege that. ARS presents a signed statement by an employee of the relevant Ford dealership, stating, that Matthew Beard c[ame] into Redeker Ford in April 2005 to purchasefiease a new truck. I recall this because it is not common for an individual to want to buy such an expensive truck in a single day. Mr. Beard did not have all the information necessary to finalize the lease that day. Approximately 10-14 days later, on April 27, 2005 Mr. Beard came in and finalized the deal and took possession of a Ford Super Duty F-250. ARS Supp. Filing, Ex. K (Jan. 14, 2008 statement of Mike Arnold). In addition, sometime on or shortly after April 28, 2005, an ARS employee told Higginbotham that Beard was driving a new Ford truck. Higginbotham 270:25 to 271:4. The employee told Higginbotham that Beard had said his new employer bought the truck for him several days before Consumers awarded the new contract, even though Beard was still working for ARS at that time. Id. 271:5-25. The employee also reported that Beard’s truck bore a temporary license plate (“tag”) with an expiration date of May 12, 2005. Id. 271:1^4. On the premise that Michigan typically issues such temporary tags only for a period of thirty days, ARS implies that the temporary tag was evidence that Boatright bought the truck for Beard on about April 12, 2005. Id. 272:1-22. As further purported evidence that Allen wanted ARS to terminate so that he could have Consumers award the new contract to Boatright, ARS introduces a letter consistent with the notion that Allen had been in regular communication with Boat-right about the West Olive shop even before ARS terminated. The letter was written on Boatright corporate letterhead and dated March 14, 2005 — eleven days before ARS terminated. Boatright wrote to Allen, Thank you for the many courtesies extended to me on the telephone. Please accept this letter as notification that Boatright Enterprises, Inc. will bid on your Railcar Repair Contract when the opportunity presents itself in the future. Please advise me of any order of operations we need to follow to meet your guidelines for bidding. Thank you for your interest in our company and you may be assured you will be well pleased with our excellent service and quality products. ARS Opp’n, Ex 28. Moreover, it is undisputed that the day before ARS called Allen to terminate, Boatright obtained the documents needed to apply for a license to conduct business in Michigan. Boatright signed his application on March 25, 2005, the very day that ARS terminated, and it was filed with the Michigan state government on March 31, 2005. See ARS Opp’n, Ex 32 at 2-3. ARS also emphasizes that Allen sent the Request for Proposal (“RFP”) for the rebid out on the same day that Higginbotham called and informed him that ARS would terminate the contract— March 25, 2005 — without even waiting for the written notice of termination that Higginbotham promised during the call. ARS points a note handwritten by Allen on that date, which states, in its entirety, “Kurt [Higginbotham] called and said he wanted to rebid the contract. He will send an email letter today or Monday. He gave permission to send the RFP.” ARS Opp’n, Ex 31. Evidence Purporting to Show that Beard and Boatright Lied About the Nature and Extent of their Pre-Termination Communications Beard testified that he never communicated with Boatright by phone or otherwise, between 1999, when he called Boat-right to place an order for parts, and late January 2005, when he called Boatright to discuss Consumers’ need for railroad ties. See Beard 87:5 to 89:4 and 89:14 to 90:22. Beard also testified that from late January 2005 through March 2005, he had only “three or four” phone conversations with Boatright, and the calls concerned ARS’s need for railroad ties, the possibility of ARS making more money by selling parts to “short-line” railroads. See Beard 90:23 to 95:4. Beard acknowledged that ARS records showed a 30-minute phone call from the West Olive shop to Birmingham, Alabama on March 9; a “very quick” call to Birmingham on March 11; and four more calls,, of unspecified duration; Beard stated that the March 9 call was a conversation between him and Boatright solely about railroad ties and railcar parts, while the other five calls on March 11 and shortly thereafter were “probably” calls to Allison, Boatright’s assistant, who handled railroad ties. See Beard 96:5 to 97:6. The foregoing calls were apparently to Boat-right’s office telephone. Beard also acknowledged calling Boatright’s cellular telephone “a couple times” during this same period of late January to March 2005. Id. 100:22-24. ARS submits phone-company records showing 61 calls between Beard’s cell phone and Boatright’s cell or office phones between January 27 and March 25, 2005, then 88 additional calls between those numbers from March 25 through April 28, 2005 (the period between ARS’s termination and Consumers’ awarding the new contract to Boatright, during which Beard was still employed by ARS). See ARS Opp’n Ex 34 (call log). Finally, the phone records show two calls from Boatright’s cell phone to Beard’s home phone from January 27 through April 28, 2005. Id. ARS contends that the discrepancy between Beard and Boatright’s testimony and their phone records shows that they were lying about the nature and extent of their communications in the first four months of 2005. ARS believes they lied to cover up the fact that they were conspiring to induce ARS to terminate the contract, enable Boatright to submit a bid that was sure to beat ARS’s bid, and have Consumers (at Allen’s recommendation) award the new contract to Boatright, whereupon Boatright would hire Beard as his West Olive manager. ARS argues that the 2005 phone evidence alone destroys the credibility of these witnesses. It might be possible — even for people who claim to remember each other from one routine business call five years earlier — to forget whether they spoke three times or seven times, for example. It is not possible to forget placing and/or receiving 150 calls instead of only a few calls over a two-month time period. Furthermore, it is inexcusable, and there is no plausible excuse, for Matt Beard to have been communicating with his employer’s competitor at all, much less this frequently, during the time period in question. ARS Opp’n at 21. Procedural History ARS filed the original complaint in November 2005, naming Beard, Boatright, and Boatright Enterprises. In October 2006, with leave of court, ARS filed the first amended complaint, which added two defendants, Consumers and Consumers senior engineer, and asserted eight claims under state common law. ARS asserted three claims against its former employee Matthew Beard alone: Count 1 Breach of Fiduciary Duty and the Duty of Loyalty Count 4 Breach of Contractual and Common-Law Confidentiality Obligations Count 5 Spoliation of Evidence ARS asserted two claims against Consumers alone: Count 6 Breach of Contract Count 7 Vicarious Liability ARS asserted claims for intentional-misrepresentation against Beard and Allen (count 2) and tortious interference with contract (count 3) against Boatright, Boat-right Enterprises, & Beard. Finally, ARS alleged that all five defendants engaged in a civil conspiracy (count 8). As compensation for lost profits, ARS seeks about $1.08 million for the remainder of the five-year contract and $2.55 million for the five-year renewal contract which it expected. See ARS Sur-Reply, Ex G (Report of Eric A. Adamy, C.P.A., C.B.A., dated June 29, 2007). The amended complaint does not seek damages for the re-bid contract which it did not win, nor does its expert’s report calculate such damages. All five defendants timely filed a joint answer to the first amended complaint in November 2006. In September 2007, all five defendants jointly moved for summary judgment, and ARS timely filed its opposition brief in October 2007. The defendants filed their reply on October 30, 2007, and ARS (with leave of court) filed a sur-reply on November 14, 2007. The discovery deadline was December 15, 2007, and no party has sought an extension of time in which to conduct discovery. Summary Judgment Summary judgment is proper if the “ ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Conley v. City of Findlay, 266 Fed.Appx. 400, 404 (6th Cir.2008) (quoting Fed. R. Crv. P. 56(c)). Accord Brown v. Brown, 478 Mich. 545, 739 N.W.2d 313, 316 (2007). The movant has the burden of proving the absence of genuine issues of material fact and its entitlement to judgment as a matter of law. Conley, 266 Fed.Appx. at 404 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). However, the movant “need not support its motion with affidavits or other materials ‘negating’ the opponent’s claim”; rather, the movant’s initial burden is only to “point out to the district court that there is an absence of evidence to support the nonmoving party’s case .... ” Wilson v. Continental Dev. Co., 112 F.Supp.2d 648, 654 (W.D.Mich.1999) (Bell, J.) (citing Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th Cir.1993)), af'd o.b., 234 F.3d 1271, 2000 WL 1679477 (6th Cir. Nov. 2, 2000). Once the movant has met its burden, the non-movant must present “significant probative evidence” to demonstrate that there is more than “some metaphysical doubt as to the material facts.” Conley, 266 Fed.Appx. at 404 (quoting Moore, 8 F.3d at 339-40). The non-movant may not rest on the mere allegations of his pleadings. Wilson, 112 F.Supp.2d at 654 (citing Fed. R. Civ. P. 56(e) and Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995)). Moreover, the mere existence of an alleged factual dispute between the parties will not defeat an otherwise properly supported summary judgment motion; there must be some genuine issue of material fact. Conley, 266 Fed.Appx. at 404 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must accept the non-movant’s factual allegations, ACLU v. NSA, 493 F.3d 644, 691 (6th Cir.2007) (concurrence) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)), cert. denied, - U.S. - -, 128 S.Ct. 1334, 170 L.Ed.2d 59 (2008), and view the evidence in the light most favorable to the non-movant, giving it the benefit of all reasonable inferences. Fox v. Eagle Dist. Co., Inc., 510 F.3d 587, 592 (6th Cir.2007) (Griffin, J.). But the court considers its evidence only to the extent that it would be admissible at trial. Healing Place, 744 N.W.2d at 177 (citing Mich. Ct. R. 2.116(G)(6) and Veenstra v. Washtenaw Country Club, 466 Mich. 155, 645 N.W.2d 643, 648 (2002)). Ultimately, “[e]ntry of summary judgment is appropriate ‘against a party who fails to make a showing sufficient to establish the existence of an element to that party’s case, and on which that party w[ould] bear the burden of proof at trial.’ ” Davison v. Cole Sewell Corp., 231 Fed.Appx. 444, 447 (6th Cir.2007) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548). As Chief Judge Bell has characterized the post-trilogy summary-judgment standard, “[wjhile preserving the constitutional right of civil litigants to a trial on meritorious claims, the courts are now vigilant to weed out fanciful, malicious, and unsupported claims before trial.” Wilson, 112 F.Supp.2d at 654. A Federal Court’s AppliCAtion op State Law “In applying state law, we anticipate how the relevant state’s highest court would rule in the case and are bound by controlling decisions of that court.” National Union Fire Ins. Co. of Pittsburgh v. Alticor, Inc., 472 F.3d 436, 438 (6th Cir. 2007) (Griffin, J.) (citation omitted). If the state supreme court has not conclusively decided the issue, a federal court presumptively looks to the decisions of the state’s appellate courts: “In anticipating how the state supreme court would rule, ‘we look to the decisions of the state’s intermediate courts unless we are convinced that the state supreme court would decide the issue differently.’ ” US v. Lancaster, 501 F.3d 673, 679 n. 3 (6th Cir.2007) (Griffin, J.) (quoting Melson v. Prime Ins. Syndicate, Inc., 429 F.3d 633, 636 (6th Cir.2005)), pet. cert. filed, - U.S.L.W. - (U.S. Nov. 29, 2007) (No. 07-7987). In ascertaining the State’s controlling law, a federal court also “may give weight” to the decisions of the State’s trial courts. Bradley v. GMC, 512 F.2d 602, 605 (6th Cir.1975) (citation omitted). Precedential Value of Michigan Decisions A federal court must accord the same precedential value to a state-court decision as it would be accorded by that state’s courts. See Mutuelle Generale Francaise Vie v. Life Ass. Co. of Pa., 688 F.Supp. 386, 397 n. 15 (N.D.Ill.1988) (“[0]ne Supreme Court decision (Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109 (1940)) ... required a federal court to ascribe the same prece-dential force to a New Jersey trial court decision that such a decision would receive in that state’s court system under the peculiarities of New Jersey law.”). If a state court would not be bound by a particular state-court decision, then neither is this court. King v. Order of United Commercial Travelers of America, 333 U.S. 153, 161, 68 S.Ct. 488, 92 L.Ed. 608 (1948) (“a federal court adjudicating a matter of state law in a diversity suit is, in effect, only another court of the State; it would be incongruous indeed to hold the federal court bound by a decision which would not be binding on any state court.”) (citation omitted). Michigan Court Rule 7.215(C)(2) states that “[a] published decision of the Court of Appeals has precedential value under the rule of stare decisis.” This subsection makes no distinction based on when the decision was issued. However, Michigan Court Rule 7.215(J)(1) provides that “[a] panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court or by a Special Panel of the Court of Appeals as provided in this rule.” Emphasis added. Synthesizing Michigan Court Rules 7.215(C)(2) and 7.215(J)(1), the Michigan Court of Appeals accords precedential value to all of its prior published decisions, regardless of when they were issued. When a post-November 1, 1990 published Court of Appeals decision conflicts with a pre-November 1, 1990 published Court of Appeals decision, however, the post-November 1,1990 decision prevails. When there is a conflict between two published decisions of the Court of Appeals that were both issued after November 1, 1990, Michigan courts must follow the first opinion that addressed the matter at issue. Novak v. Nationwide Mut. Ins. Co., 235 Mich.App. 675, 599 N.W.2d 546, 554 (1999) (citation omitted). By contrast, Michigan Court of Appeals panels are not bound by un published decisions of that same court, regardless of when they were issued. Iqbal v. Bristol West Ins. Group, 278 Mich.App. 31, 748 N.W.2d 574, 582 (2008) (citing Mich. Ct. R. 7.215(C)(1)). Finally, a federal court’s interpretation of state law is not binding. Leavitt v. Jane L., 518 U.S. 137, 146, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996) (Stevens, J., dissenting o.g., joined by Souter, Ginsburg, & Breyer, JJ.) (“[T]he decision of a federal court (even this Court) on a question of state law is not binding on state tribunals .... ”). Accordingly, this court will seriously consider our Circuit’s interpretation of state law but is not bound by it. ARS Does Not Seek Relief in Connection with Its Loss of the Re-Bid ARS often alleges conduct by the defendants that occurred after ARS terminated the contract. That is not inappropriate. The court has considered evidence of the defendants’ post-termination conduct to the extent that it could lead a reasonable factfinder to conclude that ARS carried its burden on an element of a claim. It is important, however, to specify the scope of those claims with precision. ARS cannot obtain relief in connection with its failure to win the re-bid, because the amended complaint simply does not seek such relief. ARS’s prayer for relief reads, in its entirety: WHEREFORE, Plaintiff demands a judgment for economic damages sustained as a result of the lost contract with Consumers Energy, annoyance, inconvenience, pre-judgment interest, post-judgment interest, attorneys’ fees, plus its costs of this action. In addition, Plaintiff is entitled to and demands exemplary damages. Am. Comp, at 23, text following ¶ 121 (emphasis added). The amended complaint seeks recovery of damages for “the lost contract”, i.e., only one contract. Given the allegations of the amended complaint that precede the prayer for relief, “the lost contract” is the contract that ARS terminated. Thus, ARS’s prayer for relief seeks damages only for conduct and statements that allegedly led ARS to terminate the contract. It does not seek damages for Consumers’ decision not to award the new contract to ARS, nor for any actions or statements by other defendants that allegedly led Consumers not to award the new contract to ARS. It is the complaint that defines the scope of the action, and it is the prayer for relief which limits the grounds on which relief may be obtained. See Swinney v. GMC, 46 F.3d 512, 517 (6th Cir.1995) (“The plaintiffs contend that GM’s representations about the VTEP caused them to forego participating in the laid-off workers’ plan, and in their prayer for relief, the plaintiffs ask for these benefits, not for additional VTEP benefits. The issue this court addressed in Sherrod [v. General Motors Corp., 33 F.3d 636 (6th Cir.1994) ]. was whether the VTEP was an ERISA plan; it did not deal with the laid-off workers’ plans. Sherrod is therefore not controlling .... ”). Moreover, ARS’s CEO testified— consistent with the prayer for relief — that ARS is not seeking damages in connection with the re-bid: Q. I want to make sure I understood something. Are you claiming damages in this case under the 2002 contract or [sic] that you did have, or under the 2005 contract that you never got but you bid on? A. 2002. Q. Okay. So you don’t believe that you are entitled to any damages under the 2005 bid or any prospective contract, correct? A. Correct. Higginbotham 305:12-20. Disposition of this case will be limited to the relief requested in the prayer for relief, as confirmed by the testimony of plaintiffs CEO. See Dykstra v. Wayland Ford, Inc., 240 Fed.Appx. 14, 16 (6th Cir. 2007) (“[P]laintiffs are presented with a more difficult hurdle to overcome, as they now seek damages that were clearly never part of their original prayer for relief.”); Wigfall v. Holinka, 2007 WL 4191967, *3 (W.D.Mich. Nov. 21, 2007) (Maloney, J.) (“[T]his court need not resolve the claim as it relates to plaintiffs allegations regarding the Indiana warrant as that claim is unrelated to plaintiffs prayer for relief.”); In re Heflin, 145 B.R. 560, 563 (Bankr.S.D.Ohio 1992) (“[Disposition of the case may be made on the basis of the specific relief requested. The debtors have only requested that the order fixing support be declared void. The complaint does not refer to the subsequent wage deductions nor request them to be declared void.* * * As a result, this court has not been requested to set aside the wage deductions and will not do so.”)., Accordingly, any alleged misconduct occurring after ARS terminated the contract cannot itself be actionable with regard to ARS’s decision to terminate. This includes, for example, Beard’s alleged assurance about a safe labor rate to win the rebid; Allen’s alleged statement to Higginbotham that he would “hope and like” ARS to win the new contract, Higginbotham 247-51; and Beard’s allegedly giving Boatright confidential bid and pricing information in order to ensure that Boatright would prevail over ARS for the re-bid contract. However, these assertions are relevant to the extent they cast light on actions or statements before ARS terminated the contract. The State of the Record ARS’s main opposition brief contends, “Every premise that defendants rely upon is undermined by the (still incomplete) evi-dentiary record.” Id. at 1. ARS then complains It is not surprising that the evidentiary record is incomplete; defendants filed their motion six weeks prior to the discovery deadline in effect at the time of filing, with many fact witnesses and all expert witnesses yet to be deposed, and discovery responses still outstanding. Id. at 1 n. 1. For example, ARS’s post-hearing filing submits Exhibit L, a report by an electronic-evidence consultant about its forensic search of hard drives belonging to Boat-right. ARS’s expert details how many times the term “ARS” appears in the extant files on Boatright’s drives and in the files that have been deleted from those drives. ARS’s counsel ends this February 8, 2008 filing by stating, As stated at oral argument, in light of the fact that no material recovered from Boatright’s computer hard drives has yet been made available to ARS for review, and because such material may lend further support to ARS’s spoliation claim, entry of judgment on this claim is premature. ARS Supp. Filing at 4. These complaints about the defendants’ alleged refusal or failure to turn over all items responsive to discovery requests utterly lack merit. ARS never indicated that it could not effectively oppose summary judgment before the completion of the scheduled discovery period, or that it needed more time for discovery than allotted by the court’s initial case management and scheduling order. If that were the case, ARS could and should have asked the court to do one or more of the following: (1) hold the motion in abeyance and extend the time for ARS to file an opposition brief, so that the opposition brief would not be due until some time after the discovery deadline had passed and ARS had time to assimilate the information thus acquired; (2) deny Consumers’ summary-judgment motion without prejudice, with leave to re-file following the completion of discovery; and/or (3) extend the discovery period. The vehicle for such a request was Fed. R. Civ. P. 56(f), which provides, If a party opposing a motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order. Having failed to seek relief under Rule 56(f), ARS cannot now be heard to complain that it lacked a full record on which to show genuine issues of material fact on all its claims. See Phillips v. Anderson Cty. Bd. of Ed., 259 Fed.Appx. 842, 845-46 (6th Cir.2008): [PJlaintiff now argues that she needed deposition testimony from school employees to establish.... [T]he plaintiff raised this issue in her brief in opposition to the defendant’s motion for summary judgment, but she did not file a Rule 56(f) affidavit notifying the court of her need for continued discovery. As a result, the district court declined to delay its ruling on the motion for summary judgment.* * * * * * [Wjhere the complaining party does not comply with the mandates of Rule 56(f) and fails to file either an affidavit or a motion giving the district court the opportunity to assess the need for more discovery, “this court will not normally address whether there was adequate time for discovery.” Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir.2000) (internal citations omitted). Although the plaintiff here raised her concerns about the inadequacy of discovery prior to summary judgment, she did so improperly, as the district court correctly noted. Id. at 845-46; see also CGH Transport v. Quebecor World, 261 Fed.Appx. 817, 820 (6th Cir.2008) (“It also argues that World’s summary judgment motion should not have been granted in part because it did not have the opportunity to conduct sufficient discovery. These arguments, however, are not properly before us because CGH did not raise these ... concerns in the district court by, for example, either bringing a motion to compel discovery or filing an affidavit pursuant to 56(f).”). Accordingly, it is proper for this court to rule on the defendants’ motion notwithstanding ARS’s improper complaint about discovery and the resultant state of the record. The court will also disregard any related complaints that ARS makes to explain why it lacks evidence to show a genuine issue as to any particular material fact. See No. Michigan Title Co. of Antrim-Charlevoix v. Bartlett, 2005 WL 599867, *6 (Mich.App. Mar. 15, 2005) (“Under 2.116(C)(10), it is no longer sufficient for plaintiffs to promise to offer factual support for their claims at trial.... [A] party faced with a motion for summary disposition ... is, in responding to the motion, required to present evidentiary proofs creating a genuine issue of material fact for trial. Otherwise, summary disposition is properly granted.”) (quoting Smith v. Globe Life Ins. Co., 460 Mich. 446, 597 N.W.2d 28, 33 n. 2 (1999)). Breach of Fiduciary Duty and Duty of Loyalty (Count 1 — Against Matthew Beard Only) Breach of Contractual and Common-Law Confidentiality Obligations (Count 4 — Against Matthew Beard Only) In November 2001, Matthew Beard signed a confidentiality agreement that provided: The nature of services provided by Appalachian Railcar Services, Inc. (“ARS”) to its clients requires information to be handled in a private, confidential manner. Information about ARS’s business or its employees or its clients will only be released to people of agencies outside the company with our written consent. Following legal or regulatory guidelines provide the only exceptions to this policy. ARS Opp’n, Ex 2. ARS contends that by providing Boatright with ARS’s confidential and proprietary information — including its internal bid and pricing information — for use in undercutting ARS in the re-bid, Beard breached his contractual and common-law duties of confidentiality and loyalty. Am. Comp. ¶¶ 95-97. ARS points to two incidents: a series of e-mails that Beard sent to Boatright that allegedly included confidential ARS information, and Beard’s allegedly sharing ARS’s bid and pricing information with Boatright. See Am. Comp. ¶¶ 72 & 97. ARS appears to concede that some or all of the non-pricing e-mails and documents are not confidential, but contends that Beard’s sharing them with Boatright is evidence that he breached his duty of loyalty and fiduciary duty by helping prepare Boatright to win and work the new West Olive Shop contract. The defendants contend that Beard is entitled to summary judgment on these claims on two grounds. First, the defendants contend that the Michigan Uniform Trade Secrets Act (“MUTSA”) expressly precludes such common-law claims against Beard. MSJ at 16. Defendants rely on M.C.L. § 445.1908(1), which provides, “this act displaces conflicting tort, restitution-ary, and other law of this state providing civil remedies for misappropriation of a trade secret ....” Second, proceeding under MUTSA, the defendants contend that “ARS’s misappropriation claims (including the contract-based claim) must be dismissed because the information allegedly misappropriated by Beard in the e-mails was not confidential.” MSJ at 16-17. While Higginbotham testified that all the information Beard sent Boatright was confidential, see Ex. B at 284-86 and Ex. V, defendants contend that “ARS has never articulated what information in those documents is confidential, even though they are required to do so under Michigan law.” MSJ at 17 (citing, inter alia, Utilase, Inc. v. Williamson, 1999 WL 717969, *7 (6th Cir. Sept. 10, 1999)). They argue that the information consists of (1) links to publicly available websites and (2) blank standard forms generated by the Association of American Railroads and widely used in the industry, and they rely on the proposition that “publicly available, generally known information cannot constitute trade secrets information under Michigan law.” MSJ at 17-18 (quoting M.C.L. § 445.1902(d) and citing, inter alia, Hayes-Albion v. Kuberski, 421 Mich. 170, 364 N.W.2d 609, 614 (1985) (setting forth factors to determine whether information is a trade secret under Restatement 2d of Torts § 757)). The court determines that there is a genuine issue as to whether Beard sent confidential internal bid and pricing information to Boatright (or told Boatright that information orally). Such information constitutes a trade secret under the circumstances, so MUTSA applies and preempts ARS’s claim for breach of the common-law duty of confidentiality as to that particular disclosure. See, e.g., Vector Enviro. Group, Inc. v. 3M Co., 2006 WL 3004086, *4 (E.D.Mich. Oct. 20, 2006) (in preliminary-injunction context, court held that plaintiff was not likely to avoid MUTSA preemption of claim that defendant tor-tiously interfered with contract by misappropriating plaintiffs trade secret and convincing a third party to replace plaintiffs product with defendant’s improperly-acquired duplicate product; plaintiff failed to specifically show how the tortious-interference claim rested on something beyond the misappropriation of a trade secret). MUTSA does not, however, preempt ARS’s claim for breach of Beard’s contractual duty of confidentiality. See M.C.L. § 445.1908(2) (“This act does not affect any of the following: (a) Contractual remedies, whether or not based upon misappropriation of a trade secret.”). MUTSA defines “trade secret” as information, including a formula, pattern, compilation, program, device, method, technique or process that is both of the following: (I) Derives independent economic value, actual or potential, from not being generally k