Damon v. Groteboer (937 F. Supp. 2d 1048, 2013)

MEMORANDUM OPINION AND ORDER

JOHN R. TUNHEIM, District Judge.

Plaintiffs Jean Francois Damon and Jacqueline Damon’s (the “Damons”) claims arise out of a commercial real estate purchase in 2005. The Damons’ complaint includes fifteen counts, including breach of fiduciary duties and fraud, against their real estate agents (Daniel Groteboer, Merl Groteboer, RE/MAX of Rochester, Northwest Executives Brokerage Inc. (collectively, the “Realtor Defendants”)) and the sellers of the real estate (Compark, LLC, Compark 6-2, LLC, and the fourteen members of Compark, LLC (collectively, the “Compark Defendants”)). The matter is currently before the Court on the Realtor Defendants’ motion to dismiss for lack of subject matter jurisdictihn, the Realtor Defendants’ motion for partial summary judgment, the Compark Defendants’ motion for summary judgment, and various objections to rulings of United States Magistrate Judge Franklin L. Noel relating to the subject matter jurisdiction issue. For the reasons explained below, the Court will deny the Realtor Defendants’ motion to dismiss and will grant in part and deny in part defendants’ motions for summary judgment.

BACKGROUND

I. COMPARK AND THE DEVELOPMENT

This action involves commercial real estate in the “Commerce Park” development in northwest Rochester, Minnesota. Dan Penz’s company 4TP, LLC possessed the right to purchase several lots in Commerce Park. (Third Aff. of Sten-Erik Hoidal, Ex. 3 at 9, Aug. 9, 2012, Docket Nos. 152-53.) Penz’s discussions with Merl Groteboer led to the formation of Com-park, LLC on December 29, 2004. (Third Hoidal Aff., Ex. 4 (Dep. of Daniel L. Penz (“Penz Dep.”)) '27-28; Third Hoidal Aff., Ex. 5.) The lots in Commerce Park were estimated to be worth between $7.4 and $8 million, and 4TP LLC obtained a 47.5% membership interest in Compark by transferring to Compark its right to purchase the lots. (Penz Dep. 28-29, 32-33.) The remaining 52.5% interest in Compark was held by a group of investors that contributed approximately $3 million and obtained a loan for $1.1 million to purchase the lots. (Third Hoidal Aff., Exs. 8-9.) Compark used these funds to purchase the lots for $3.7 million.

Merl Groteboer (“Merl G.”) is Corn-park’s Chief Manager and Ed Lunn is its Chief Financial Officer and - Secretary. (Seventh Aff. of Steven J. Weintraut, Ex. 52 (Dep. of Merl Groteboer (“Merl G. Dep.”)) 41:25-42:13, Sept. 14, 2012, Docket No. 168.) Merl’s son, Dan Groteboer (“Dan G.”), is also a member of Compark. (Seventh Weintraut Aff., Ex. 48 (Dep. of Daniel Groteboer (“Dan G. Dep.”)) 48:24-49:18.) Merl G. and Dan G. are real estate agents for RE/MAX of Rochester. (Third Hoidal Aff., Ex. 7 at 20.) Penz was an indirect member of Compark through 4TP, LLC. (Penz Dep. 77:21-25.) The rest of Compark’s membership consists of business people and investors and to the extent that they are relevant to the present action, the Court will discuss them below.

II. THE DAMONS’PURCHASE

The events leading up to the present action begin with the Damons’ July 2005 sale of a rental home in Maryland that netted approximately $630,000. (Third Hoidal Aff., Ex. 11 (Dep. of Jean Francois Damon (“Mr. Damon Dep.”)) 18:21-19:19.) The Damons then decided to invest those proceeds in a “like-kind” property in order to avoid paying taxes on the proceeds — a process known as a § 1031 exchange. (Id. 19:23-20:8.) The Damons invested about $200,000 in oil and gas royalties and, on the advice of family members, decided to invest the remaining money in commercial real estate in Rochester, Minnesota. (Fourth Aff. of Christopher P. Renz, Ex. A (Dep. of Jacqueline Ruth Damon (“Ms. Damon Dep.”)) 30:10-13, 40:5-12, 344:14-21, Aug. 9, 2012, Docket No. 143.) There was a deadline of September 10,■ 2005, for the Damons to identify properties for the § 1031 exchange.

On September 2, 2005, the Damons met with Dan G. and took a tour of Rochester to look at developing areas. (Mr. Damon Dep. 39:12-25.) The Damons and Dan G. dispute how much detail the Damons provided regarding the amount they wanted to spend on property during this meeting, but the meeting ended without the Damons selecting a property or signing an agreement with Dan G. (Id. 41:5-11.)

On September 7, 2005, the Damons met with Dan G. again, visited Commerce Park, and discussed the possibility of purchasing a building within the development that contained four office condos and was for sale for $1.21 million. (Id. 232-33.) Dan G. informed the Damons that Commerce Park was owned by Compark, that Compark was owned by fourteen investors including himself, and that separate LLCs held each building in Commerce Park. (Ms. Damon Dep. 389:20-390:19.) The Damons allege that Dan G. agreed to serve as their leasing agent, through RE/MAX, and find tenants for the building, but the alleged agreement was not reduced to writing and its specifics were not discussed. (Id. 189-90, 403-04.) Dan G. denies mak- ' ing such an agreement.

During the September 7 meeting, Dan G. presented a “Financial Analysis” to the Damons, which had been prepared by Merl G., and was intended to justify the $1.2 million asking price. (See Seventh Weintraut Aff., Ex. 71.) The Damons allege that the Financial Analysis contained several false or misleading aspects, such as being based on a 100% occupancy rate, asserting that the condos were viable rental properties when they are typically sold, assuming rent of $13.50 per square foot even though such a figure was based on a fully finished interior and the building was being sold as a “vanilla shell,” and asserting that the units were 1,802 square feet each when in fact they were under 1,600.

At the close of the meeting, the Damons signed an agreement to purchase the building for $1.21 million. (Ms. Damon Dep. 369.) The Purchase Agreement included a $96,800 one-year rent guarantee from the sellers. (Id. 214.) The Agreement., indicated that the Groteboers were representing the Damons and Dan G. told the Damons that he was also representing the seller, Compark. (See Fourth Renz Aff., Ex. N.) At some point after the meeting, Dan G. made a notation on the Financial Analysis that .appears to indicate that he knew the square footage , he conveyed to the Damons was incorrect and that rent of $14.90 per square foot, not $13.50, was needed to achieve the desired income. (Seventh Weintraut Aff., Ex. 71; Dan G. Dep. 104:14-23.)

The Damons allege that Dan G. made several misrepresentations during the September 7 meeting, such as that there were no buildings available that would better suit the Damons’ needs, that the Groteboers would represent the Damons in leasing the building, that there were numerous strong leads for tenants including a tenant associated with Mayo Clinic, that there was “no doubt” they could fill the building with tenants in one year, and that the size of the units was 1,802 square feet. (Third Am. Compl. ¶ 81, July 10, 2012, Docket No. 126.)

The Purchase Agreement included an “acceptance deadline” stating that the offer to purchase would be “null and void” if it was not accepted by September 8, 2005. (Fourth Renz Aff., Ex. N at 2.) Dan G. testified that sometime after the Damons signed the Agreement on September 7, there was a meeting of the Compark members and Lunn signed for Compark. (Dan G. Dep. 112-13, 281-82.) The first record of the signed Agreement appeared on October 10, 2005, when Dan G. faxed the signed agreement to Dan Berndt, Corn-park’s attorney. (Seventh Weintraut Aff., Exs. 77-79.)

The Purchase Agreement also indicated that Dan G. and Merl G. were the agents for both the Damons (the buyers) and Compark (the sellers). (Fourth Renz Aff., Ex. N.)

III. COMPARK 6-2

In connection with developing various commercial buildings on its lots, Compark created three LLCs for which it was the sole member: Compark 6-2, Compark 3-1, and Compark 1-1. (Third Hoidal Aff., Ex. 7 at 13 -14.) Compark maintains a bank account and files taxes, but the additional LLCs do not. The purpose of creating separate LLCs was to facilitate obtaining separate financing for each parcel and avoid complications that might arise if several properties financed by a single loan were sold individually. (Id., Ex. 7 at 13-15.)

According to the Purchase Agreement, Compark was the seller to the Damons. (Fourth Renz Aff., Ex. N.) On October 12, 2005, however, Compark transferred the land to Compark 6-2 via quit claim deed. (Third Hoidal Aff., Ex. 26.) The Damons did not learn about this transfer and the Damons’ representative at closing did not notice that Compark 6-2, not Compark, was listed as the seller.

IY. FINANCING AND CLOSING

Dan G. agreed to help the Damons obtain financing. (Ms. Damon Dep. 201; Dan G. Dep. 140.) On September 14, 2005, Dan G. told the Damons that Associated Bank offered a 6.5% interest rate that would only stay in place for sixty days, meaning the Damons needed to close on the building in November 2005, rather than January 2006 as set forth in the purchase agreement. (Ms. Damon Dep. 202, 209-10; Third Hoidal Aff., Ex. 20.) Ms. Damon learned prior to closing that Associated Bank would actually hold the 6.5% interest rate for longer than sixty days, but the Damons still agreed to close in November 2005. (Ms. Damon Dep. 205-06, 361-62; Third Hoidal Aff., Ex. 20.) The Damons allege that they had already arranged for the earlier closing date with Ms. Damon’s sister and proceeded with the November closing for that reason.

Associated Bank arranged for Title Services, Inc. (“Title Services”) to serve as the settlement agent at the closing. (Third Hoidal Aff., Ex. 2 (Dep. of Daniel E. Berndt (“Berndt Dep.”)) 34:12-14.) Title Services is a wholly owned subsidiary of Dan Berndt’s law firm. Title Services distributed closing documents to the buyer and seller that reflected that Compark 6-2 was the seller, not Compark. (Ms. Damon Dep., 159-60, 217, 430-31; Third Hoidal Aff., Ex. 25.) The Damons did not attend the closing on November 18, 2005, but the Damons were represented at the closing by Ms. Damon’s sister, Judy O’Donohoe. (Ms. Damon Dep. 89:21-24.)

Portions of the proceeds from the sale were used to pay down Compark’s loan from Associated Bank and to reduce the personal guarantees of Compark members, and $96,780 was held for Compark 6-2 to satisfy its one year rent guarantee to the Damons. Merl G. and Dan G. each received a commission of $24,000 for representing the Damons and Compark at the closing. (Third Hoidal Aff., Ex. 36; Dan G. Dep. 162-65.) Compark’s net proceeds were $743,261.59. (Third Hoidal Aff., Ex. 36.)

The day before closing, Dan G. sent Ms. Damon an email informing her that Steve Seymour would be helping to rent the condos, and telling her that “Merl [G.] and I also have large for rent signs out there” and “Merl [G.] Steve and I have been ... showing the units.” (Third Hoidal Aff., Ex. 33.) The signs actually said “Office Condos for Sale or Lease.”. (Seventh Weintraut Aff., Ex. 90.)

V. THE APPRAISAL

Prior to the closing, Associated Bank had the building appraised, informed the Damons that its value was determined to be $1,257,000 in finished condition, and offered to make the appraisal available to the Damons. (Third Hoidal Aff., Ex. 22.) The appraisal was performed by Scott Renne. In April 2009, the Damons learned that Renne had faced criminal charges. for an alleged scheme involving fraudulent appraisals and kickbacks and committed suicide in May 2007. Based on other sales ■ Compark made in the Commerce Park, the Damons’ expert opines that the value of the Damons’ building on the date of closing was actually $950,000. (Seventh Weintraut Aff., Ex. 129 at 2.)

VI. EFFORTS TO LEASE THE PROPERTY

The Damons allege that they were expecting the Groteboers to work to lease the building after the closing and that they were expecting to pay the Groteboers a commission to do that work, even though such a commission had not been discussed. (Ms. Damon Dep. 229-230.) During the first half of 2006, Ms. Damon and Dan G. spoke on a number of occasions and Dan G. repeatedly informed Ms. Damon that there were numerous calls and showings. However, Steve Seymour later told the Damons that he would not represent them in leasing the properties. (Ms. Damon Dep. 273.)

The Damons came to Rochester in October 2006 to meet with Dan G. On December 15, 2006, after the rent guarantee expired, Dan G. emailed the Damons and told them “Unfortunately the Rochester rental market got very soft over the last 8 months ... I have shown these units ... 100 times at least but have not been able to get the people to carry thru....” (Seventh Weintraut Aff., Ex. 134.) Dan G. now testifies that he remembers showing the properties to only two potential tenants — a day care center and a fitness center. (Dan G. Dep. 284-86.) On January 5, 2007, Merl G. sent a letter of intent to a client indicating that the client would be entering into a seven year lease for approximately 1,300 square feet of space, but this opportunity was never presented to Damons. (Seventh Weintraut Aff., Ex. 98.)

VII. THE DAMONS’ LATER ACTIONS

The Damons hired Paramark to be the leasing agent for their property in February 2007. In July 2008, Ms. Damon attempted to meet with the Groteboers but Dan G. told her to leave or he would call the police. (Ms. Damon Dep. 139-140.) Around August 2008, the Damons formed Damon Center, LLC (“Damon Center”) and transferred ownership of the building to Damon Center in order to limit the Damons’ personal liability in relation to leasing units in the building. (Ms. Damon Dep., 250-51.) The building was not fully leased until 2010, when Damon Center entered into multi-year leases for all units in the building. (Id. 488-89, 492.) The Damons, through Damon Center, paid approximately $192,000 for build-outs for tenants in order to lease the units. The Damons filed the present action on January 11, 2010. (Compl., Jan. 11, 2010, Docket No. 1.)

ANALYSIS

1. MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION

As a threshold matter, the Court must consider whether the action must be dismissed on the basis that Ms. Damon is a United States citizen but has no United States domicile and is therefore “stateless,” which destroys diversity jurisdiction. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828-29, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). Although defendants did not raise this issue until over two years after the commencement of the litigation, objections to subject matter jurisdiction are never waived and the Court is obligated to determine whether it has jurisdiction. See Gonzalez v. Thaler, — U.S. -, -, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012). For the reasons explained below, the Court will find that Ms. Damon does not have a United States domicile, but that she is not an indispensable party and can be dismissed from the action in order to preserve the Court’s jurisdiction.

A. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court’s subject matter jurisdiction and requires the Court to examine whether it has authority to decide the claims. Molina Jerez v. Holder, Civ. No. 10-4498, 2012 WL 1072581, at *3 (D.Minn. Mar. 30, 2012). “A court deciding a motion under Rule 12(b)(1) must distinguish between a ‘facial attack’ and a ‘factual attack.’ ” Osborn v. United States, 918 F.2d 724, 734 n. 6 (8th Cir.1990). In deciding a facial attack,

the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6). The general rule is that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. In a factual attack, the court considers matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6) safeguards.

Id. (citations and internal quotation marks omitted).

B. Facts Relevant to Subject Matter Jurisdiction

The complaint states that “Jacqueline Damon is a U.S. citizen, and her last place of residence in the United States was Maryland” and that “Damons currently reside in Nairobi, Kenya.” (Third Am. Compl. ¶ 1.) Ms. Damon filed affidavits providing greater detail in an attempt to establish that she has a United States domicile. Ms. Damon has lived in Kenya since January 2008, when she moved to join Mr. Damon in operating an ecotourism business. (Aff. of Jacqueline Damon ¶¶ 12-13, Oct. 15, 2012, Docket No. 178.) Ms. Damon has not lived in Maryland since 1991. (Id. ¶ 5.) Ms. Damon did, however, own a home in Maryland and pay taxes in Maryland until 2005. (Id. ¶¶ 4, 9.) Ms. Damon also avers that she maintains a bank account in Washington, DC and continues to vote in Maryland. (Id. ¶ 5.)

In September 2009, Ms. Damon was diagnosed with cancer and decided to obtain treatment in Virginia. (Id. ¶ 17.) From 2009 to the present, she has spent most of her time in Virginia, briefly renting a home but primarily living with friends. (Id. ¶¶ 17, 19.) Ms. Damon has also returned to Kenya- on several occasions during this period, and she avers that her “plan was to stay in Virginia as long as necessary to get better.” (Id. ¶¶ 17-20, 23.) Ms. Damon avers that the Damons “intend to return to the U.S. (possibly Maryland) or France” when the venture in Kenya is. completed. (Supplemental Aff. of Jacqueline Damon ¶ 4, Oct. 15, 2012, Docket No. 179.) ,

C. Ms. Damon’s Domicile

The Court’s purported jurisdiction over the Damons’ state law claims is provided by 28 U.S.C. § 1332, the diversity jurisdiction statute, which provides:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or , value of $75,000, exclusive of interest and costs, and is between—

(1) citizens of different States;

(2) citizens of a State and -citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

“In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State;” Newman-Green, 490 U.S. at 828, 109 S.Ct. 2218 (emphasis in original). A United States citizen who has no domicile in a state is “stateless” and destroys diversity jurisdiction. See id. at 829, 109 S.Ct. 2218 (“[Defendant’s ‘stateless’ status destroyed complete diversity under § 1332(a)(3), and his United States citizenship destroyed complete diversity under § 1332(a)(2).”). Thus, if Ms. Damon, who is a United States citizen, does not have a United States domicile, she will destroy the Court’s subject matter jurisdiction.

There are two requirements to establish a domicile: (1) “physical presence in a state”; and (2) “intent to remain there indefinitely.” Altimore v. Mount Mercy Coll., 420 F.3d 763, 768 (8th Cir.2005); Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir.1990). Domicile is determined at the time the action is instituted. Yeldell, 913 F.2d at 537. The Damons’ arguments regarding Ms. Damon’s potential domiciles in the United States have shifted as the parties litigated this matter before the Magistrate Judge in the context of motions to amend pleadings. None are persuasive.

First, in response to Realtor Defendants’ motion to dismiss, the Damons argued that Ms. Damon’s domicile was Virginia as of January 11, 2010, the date the complaint was filed. (See Pl.’s Mem. in Opp. at 2, Sept. 14, 2012, Docket No. 165.) United States Magistrate Judge Franklin L. Noel considered and rejected this argument in an order denying as futile the Damons’ motion to amend their complaint to add additional factual allegations relating to Ms. Damon’s domicile. (See Order at 2-3, Nov. 7, 2012, Docket No. 197.) The Court finds, as the Magistrate Judge found, that Ms. Damon was not domiciled in Virginia as of January 11, 2010, because she intended to remain in Virginia only until she recovered from her illness, not indefinitely. See Yeldell 913 F.2d at 537.

Second, in their appeal from the Magistrate Judge’s order, the Damons argue that defendants have the burden of demonstrating that Ms. Damon changed her domicile from Maryland and have failed to meet the burden. (See PL’s Rule 72(a) Objections at 2, Nov. 21, 2012, Docket No. 205.) In Maple Island Farm v. Bitterling, the Eighth Circuit held that “[t]here are rebuttable presumptions [1] that the place where a person actually lives is his domicile and [2] that a domicile, once established, continues until a change is shown, so that the burden of proving a change of domicile rests on the party alleging it.” 196 F.2d 55, 58 (8th Cir.1952). Maple Island also held that “[t]he presumption is in favor of. an original or former domicile as against an acquired one, and of a domestic as against a foreign one,” and that “[p]roof of a change of domicile must be clear and convincing.” Id. at 58-59 (internal quotation marks omitted). The Damons focus on the second “rebuttable presumption” set forth in Maple Island and insist that Ms. Damon’s domicile was established in Maryland as of 1991 and the burden is on defendants to prove that Kenya is now her domicile.

The Court finds, however, that placing the burden on defendants is inappropriate in this context. For one, it runs counter to the general rule that the party asserting jurisdiction bears the'burden of proving by a preponderance of the evidence that diversity jurisdiction exists. Clark v. Matthews Int’l Corp., 639 F.3d 391, 396 (8th Cir.2011); see also St. Onge v. McNeilus Truck & Mfg., Inc., 645 F.Supp. 280, 282 (D.Minn.1986) (“The party asserting jurisdiction ... has the burden of persuasion throughout to establish by a preponderance of evidence that the claimed diverse domicile has not been changed.”). Additionally, the first “rebuttable presumption” set forth in Maple Island, (that the place where a person actually lives is his domicile), would apply in favor of finding that Ms. Damon’s domicile at the time of filing was Kenya, or possibly Virginia, but not Maryland. Finally, placing a steep burden on defendants to establish by clear and convincing evidence that Ms. Damon’s once-established domicile in Maryland has changed is inconsistent with the Supreme Court’s instruction that “[t]he policy of the [diversity jurisdiction] statute calls for its strict construction.” Owen Equip. & Erec tion Co. v. Kroger, 437 U.S. 365, 377, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (internal quotation -marks omitted). Thus, the Court finds that the burden is on the Damons to prove that Ms. Damon possesses a United States domicile and that the action satisfies the requirements of diversity jurisdiction. Clark, 639 F.3d at 396.

Again, the two requirements to establish a domicile are (1) physical presence in a state; and (2) intent to remain there indefinitely. Altimore, 420 F.3d at 768. While Ms. Damon did, at one point, satisfy the first requirement by living in Maryland, the Court finds that the Damons have failed to establish that Ms. Damon intends to remain in Maryland indefinitely. Even if the Court considers Ms. Damon’s averment that she and Mr. Damon “intend to return to the U.S. (possibly Maryland) or France” when their business venture in Kenya is completed, her uncertain and noncommittal statement does not amount to proof that she intends to live indefinitely in Maryland. See Gilbert v. David, 235 U.S. 561, 570, 35 S.Ct. 164, 59 L.Ed. 360 (1915) (holding that plaintiffs “floating intention of returning to Michigan after the determination of certain litigation and the disposition of his property in Connecticut” was insufficient to maintain a domicile in Michigan).

Because the Court finds that Ms. Damon does not have a United States domicile, it will overrule the Damons’ objections to the Magistrate Judge’s November 7, 2012 order denying the Damons’ motion to amend their complaint and affirm the order. The Court’s finding also renders moot the Damons’ and the Realtor Defendants’ objections to the Magistrate Judge’s November 16, 2012 order regarding the status of Ms. Damon’s affidavits. (See Pl.’s Rule 72(a) Objection to the Court’s November 16, 2012, Order, Nov. 30, 2012, Docket No. 206; Objection to Order of Magistrate Judge, Nov. 30, 2012, Docket No. 207.) However, the Court’s finding is not dispositive of the Realtor Defendants’ motion to dismiss because the Court must turn to the issue of whether Ms. Damon is an indispensable party.

D. Ms. Damon’s Dispensability

Having determined that Ms. Damon is “stateless” and destroys diversity jurisdiction, the Court must next determine whether it must dismiss the action entirely or if it can simply dismiss Ms. Damon pursuant to Rule 21 to repair jurisdiction. See Fed.R.Civ.P. 21 (“On motion or on its own, the court may at any time, on just terms, add or drop a party.”). This question turns on Rule 19 of the Federal Rules of Civil Procedure, which defines when a party is “indispensable.” See Newman-Green, 490 U.S. at 832, 109 S.Ct. 2218 (“[I]t is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time[.]” (emphasis added)).

Rule 19(a) explains who qualifies as a “person[] required to be joined if feasible.” The Court finds that Ms. Damon falls within this group because, as a party to the challenged real estate transaction, she has an interest relating to the subject matter and “disposing of the action in [her] absence may ... impair or impede [her] ability to protect the interest.” See Fed. R.Civ.P. 19(a)(1)(B). When a person required to be joined if feasible deprives the court of subject matter jurisdiction, Rule 19(b) instructs the Court to consider the following four factors to “determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed”:

(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or avoided by:

(A) protective provisions in the judgment;

(B) shaping the relief; or

(C) other measures;

(3) whether a judgment rendered in the person’s absence would be adequate; and

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

See Fed.R.Civ.P. 19(b).

Here, the Damons urge the Court to simply dismiss Ms. Damon, rather than dismiss the entire action. On the other hand, defendants contend that they will suffer prejudice if Ms. Damon is dismissed because there will be a risk that she will attempt to simultaneously prosecute the same action against defendants in state court or that she will later attempt to bring the same claims in state or federal court and not be precluded from doing so because she was not a party to the present action.

The Court finds that there is no risk of prejudice if the action continues in Ms. Damon’s absence. As for potential prejudice to Ms. Damon, the Damons assure the Court that her interests are perfectly aligned with Mr. Damon’s and that they are comfortable with the action proceeding without her. The Court is permitted to accept the Damons’ position and allow the action to proceed without Ms. Damon. See In re Allustiarte, 786 F.2d 910, 919 (9th Cir.1986) (“Joinder is not required where the absent parties’ interests are adequately protected by those who are present. The record demonstrates that the interests of the absent spouses were adequately protected by the Allustiartes who were present at trial.” (citations omitted)).

As for potential prejudice to defendants, if Ms. Damon ever attempted to revive these claims in state or federal court on the basis that her interests were not adequately protected in the present action, the court could quickly determine that she was estopped from making the argument because she has persuaded this Court to accept the opposite argument. See Stallings v. Hussmann Corp., 447 F.3d 1041, 1047 (8th Cir.2006) (“[A] party that takes a certain position in a legal proceeding, and succeeds in maintaining that position, is prohibited from thereafter assuming a contrary position simply because his interests have changed.” (internal quotation marks omitted)).

Further, a later court in which Ms. Damon attempted to bring these claims would likely find that Ms. Damon is precluded from re-litigating her husband’s claims based on privity. “[W]hen determining whether privity exists, the proper focus is on whether the legal rights of the party to be estopped were adequately represented by the party to the first litigation.” State v. Lemmer, 736 N.W.2d 650, 661 (Minn.2007). Here, where the Damons have assured the Court that Ms. Damon’s interests will be adequately represented in her absence by Mr. Damon, it would seem to follow that she is in privity with Mr. Damon and is precluded from re-litigating his claims.

As for the remaining factors, the Court finds that a judgment rendered in Ms. Damon’s absence would be adequate because Mr. Damon’s claims are identical to Ms. Damon’s and because defendants have no claims against Ms. Damon. The Court also finds that although the Damons could pursue their claim in state court, judicial economy favors this Court resolving the merits of the dispute because multiple rounds of dispositive motions have already taken place and the action is now ready for trial. For those reasons, and primarily because neither Ms. Damon nor defendants will suffer prejudice, the Court finds that it is equitable and appropriate for the action to proceed in Ms. Damon’s absence. Thus, Ms. Damon will be dismissed from the action with prejudice and the Realtor Defendants’ motion to dismiss the action will be denied.

II. MOTIONS FOR SUMMARY JUDGMENT

The Court will now turn to the Realtor Defendants’ motion for partial summary judgment and the Compark Defendants’ motion for summary judgment. Because there is substantial overlap between the two motions, the Court will discuss them simultaneously, distinguishing between the two where necessary.

A. Standard of Review

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)..

B. Agency

As a preliminary matter, the Court must determine whether the Compark Defendants are potentially liable for the alleged misrepresentations of Dan G. and Merl G. The answer hinges on whether Dan G. and Merl G. acted as agents of Compark and whether they acted within the scope- of their actual or apparent authority. See Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 535 (Minn.1992) (“Generally speaking, a principal is liable for, the act of an agent committed in the course and within the scope of the agency and not for a purpose personal to the agent.”).

Under Minnesota law, “the existence of an agency relationship is a question of fact” and it “may be proved by circumstantial evidence of a course of dealing between the two parties.” Vacara v. Haar’s Equip., Inc., 364 N.W.2d 387, 391 (Minn.1985). Here, the Purchase Agreement explicitly states that Dan G. and Merl G. are the agents for Compark, the seller. Further, when a real estate agent makes misrepresentations that induce a sale, and the seller retains the benefits of the sale, the seller is bound by the agent’s misrepresentations. See Swanson v. Domning, 251 Minn. 110, 86 N.W.2d 716, 721-22 (1957). For these reasons, the Court finds that the Damons have at least established that a reasonable factfinder could- find that Dan G. and Merl G. were Compark’s agents and that the Compark Defendants are potentially liable for certain representations made by the Realtor Defendants, which the Court will discuss in more detail below.

C. Consumer Fraud

Defendants move for summary judgment on the Damons’ consumer fraud claim on the basis that the Damons’ claim is not brought for the public benefit. Minnesota Statutes § 325F.69, the Consumer Fraud Act, provides that any fraud is enjoinable. Minn.Stat. § 325F.69, subd. 1. Minnesota Statutes § 8.31, subd. 3a, the private attorney general statute, allows plaintiffs to seek damages for violations of the Consumer Fraud Act, but the plaintiff must demonstrate that its claim is brought for the public benefit. See Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn.2000). A “single' one-on-one transaction in which the fraudulent misrepresentation ... was made only to [one party] .... is not a claim that could be considered to be within the duties and responsibilities of the attorney general to investigate and enjoin.” Id.

Here, the Court finds that the Damons’ claims arise from a “single one-on-one transaction.” Id.; see also Kivel v. WealthSpring Mortg. Corp., 398 F.Supp.2d 1049, 1056 (D.Minn.2005) (“The public benefit requirement is typically n.ot met where the alleged conduct occurs in an individualized setting[.]”). The Damons have presented no evidence that Dan G. made the alleged misrepresentations to anyone other than them. Although the Damons claim they are seeking injunctive relief to prevent similar harms in the future, Corn-park’s potential future sales of other lots to people other than the Damons are not a proper subject for injunctive relief in this dispute. Additionally, “merely seeking injunctive relief’ that might “caus[e] defendant to be more forthright in the future as a result of injunctive relief does not satisfy [the] public benefit requirement.” Kivel, 398 F.Supp.2d at 1056. Thus, the Court will grant defendants’ motions for summary judgment on the Damons’ consumer fraud claim.

D. Deceptive Trade Practices

Defendants move for summary judgment on the Damons’ deceptive trade practices claim, which is brought pursuant to Minn.Stat. § 325D.44, subd. 1(2) & (13), on the basis that the Deceptive Trade Practices Act (“DTPA”) does not apply to real estate transactions and allows only injunctive relief. The Eighth Circuit has expressed doubt that the DTPA applies to real estate transactions, due to its emphasis on' “goods and services.” See Kellogg Square P’ship v. Prudential Ins. Co. of Am., 63 F.3d 699, 703 n. 8 (8th Cir.1995) (“We doubt that the [DTPA] even applies to this real estate purchase transaction. Two of the three sections relied upon by [plaintiff] refer to misrepresentations relating to ‘goods or services.’ ”). ■ Additionally, under Minnesota law, “the sole statutory remedy for deceptive trade practices is injunctive relief.” Dennis Simmons, D.D.S., P.A. v. Modern Aero, Inc., 603 N.W.2d 336, 339 (Minn.Ct. App.1999) (internal quotation marks omitted). The DTPA “provides relief from future damage, not past damage.” Gardner v. First Am. Title Ins. Co., 296 F.Supp.2d 1011, 1020 (D.Minn.2003).

Here, although the Damons contend they seek relief from future damage because defendants have additional properties to sell and might make similar misrepresentations to future buyers, the Court finds that the Damons do not have a valid claim for injunctive relief because they have not presented evidence that they face any risk of future harm to themselves. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“The relevant showing for purposes of Article III standing ... is ... injury to the plaintiff.”); see also Gardner, 296 F.Supp.2d at 1021 (“Plaintiffs must advance record evidence sufficient to support an inference of future harm to Plaintiffs.” (emphasis added)). Because the Damons have not presented evidence supporting a valid claim for injunctive relief and injunctive relief is the only remedy under the DTPA, the Court will grant defendants! motion for summary judgment on the DTPA claim.

E. Common Law Fraud

Under Minnesota law, the elements of fraud are: “(1) there was a false representation by a party of a past or existing material fact susceptible of knowledge; (2) made with knowledge of the falsity of the representation or made as of the party’s own knowledge without knowing whether it was true or false; (3) with the intention to induce another to act in reliance thereon; (4) that the representation caused the other party to act in reliance thereon; and (5) that the party suffer pecuniary damage as a result of the reliance.” Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 532 (Minn.1986). The Damons allege that several representations amount to fraud and the Court will address the allegations in turn. For the reasons below, and with the limitations explained below, the Court will deny defendants’ motion for summary judgment on the Damons’ fraud claim.

The first allegedly fraudulent representation is Dan G.’s statement that there were no other commercial buildings available for sale in the Rochester area that better met the Damons’ needs. The Court finds that this is a statement of opinion that cannot form the basis of a fraud claim. See, e.g., Mutsch v. Rigi, 430 N.W.2d 201, 204 (Minn.Ct.App.1988) (“[Expressions of mere opinion or conjecture are not actionable.”).

The second allegedly fraudulent representation is Dan G.’s statement that the Groteboers, through RE/MAX, would market the condos for the whole development and would start with the Damons’ building. “[A] misrepresentation of a present intention could amount to fraud. However, it must be made affirmatively to appear that the promisor had no intention to perform at the time the promise was made.” Vandeputte v. Soderholm, 298 Minn. 505, 216 N.W.2d 144, 147 (1974). The Realtor Defendants assert there is no evidence Dan G. intended not to follow through with his statement when he made it. They further claim that this alleged misrepresentation could not have caused the Damons’ damages because there is no evidence that the efforts would have succeeded had they been undertaken. However, a reasonable jury could find by a preponderance of the evidence that Dan G. had no intention of starting with the Damons’ property as he marketed the condos to potential buyers and lessees. Several facts in the record support such an inference, including the evidence of the Groteboer’s competing interest in selling the other units in Commerce Park, the arguably non-existent efforts Dan G. actually made to lease the Damons’ units, and Dan G.’s e-mail' suspiciously claiming he had shown the building at least one hundred times. Further, a reasonable jury could find causation because the Damons allege that they would not have bought the building, or would have paid less for the building, if they had known that Dan G. would not focus first on finding tenants for their units.

The third allegedly fraudulent representation is Dan G.’s statement that in September 2005, the Groteboers already had strong leads for tenants, including a tenant affiliated with Mayo clinic, and that multiple potential tenants had viewed the building. The parties dispute whether Dan G. stated that he had strong leads for tenants in the development generally, or for the Damons’ potential units specifically. Defendants argue that the representation was made concerning the entire development. The Realtor Defendants note that Ms. Damon’s testimony suggests that she believes Dan G. made the representation as to the development in general. (Ms. Damon Dép. 118:6-10.) However, on the basis of Dan G.’s testimony, a reasonable jury could find that Dan G. told the Damons that the strong lead from the Mayo tenant was for the building, not for the development generally. (See Dan G. Dep. 227:6-21.) Although the parties dispute the extent to which Dan G. overstated the level of interest in the Damons’ building and the development generally, a reasonable jury could find that Dan G.’s representations went beyond mere puffery and constituted a false representation of fact. Therefore the Court finds that summary judgment is not appropriate for this alleged misrepresentation.

The fourth allegedly fraudulent representation is Dan G.’s statement that there was “no doubt” that the Groteboers would lease all of the Damons’ units within one year. The Court finds that this is a statement of opinion or the type of puffery than does not constitute fraud. See Mutsch, 430 N.W.2d at 204; Am. Computer Trust Leasing v. Jack Farrell Implement Co., 763 F.Supp. 1473, 1487 (D.Minn.1991), aff'd sub nom. Am. Computer Trust Leasing v. Boerboom Int’l, Inc., 967 F.2d 1208 (8th Cir.1992). Further, unlike representations relating to interest that has already been expressed in the units, these representations concern future expectations and are not grounds for fraud simply because the event does not occur. Minn. Forest Prods., Inc. v. Ligna Mach., Inc., 17 F.Supp.2d 892, 909 (D.Minn.1998).

The fifth allegedly fraudulent representation is that each unit was 1,802 square feet, which was conveyed to the Damons in the handwritten Financial Analysis provided by Dan G. Defendants do not dispute that the units are, in fact, under 1,600 square feet, nor do they dispute that Dan G. edited his calculations on the Financial Analysis after meeting with the Damons, indicating his eventual awareness of the actual square footage. However, defendants contend that this misrepresentation fails to support a fraud claim because the Damons’ reliance on the statement was not reasonable when they could have discovered the actual square footage if they had been reasonably diligent. They also contend that the Damons lack evidence that Dan G. knew the representation was false when he made it.

The Court will not find that the Damons’ reliance on the square footage represented to them at the September 7 meeting was unreasonable as a matter of law. As a general matter, “[w]hether a party’s reliance is reasonable is ordinarily a fact question for the jury unless the record reflects a complete failure of proof.” Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C., 736 N.W.2d 313, 321 (Minn.2007). As to the context of the present case, buyers in real estate transactions have “a right to rely upon the representations” of the seller’s real estate agent. See Berryman v. Riegert, 286 Minn. 270, 175 N.W.2d 438, 443 (1970) (“Defendants had superior knowledge or at least the opportunity for knowledge of the problems which might be encountered in the purchase of the ... home. Because of plaintiffs’ inexperience in this field, they had a right to rely upon the representations of defendants.”). On the facts of this case, a reasonable factfinder could find that it was reasonable for the Damons to rely on Dan G.’s representation. Additionally, while there is no direct evidence that Dan G. was aware that the square footage was false when he made the representation, a reasonable jury could find that Dan G. made the representation “without knowing whether it was true of false,” which could satisfy the knowledge element. See Specialized Tours, 392 N.W.2d at 532. Thus, the Court finds that the defendants are not entitled to summary judgment on the fraud claim premised on the square footage representation.

The sixth allegedly fraudulent statement is Dan G’s assertion that the loan rate of 6.5% was only valid for sixty days. Dan G.’s representation appeared in an email dated September 14, 2005. However, the Damons learned the interest rate was available for longer than sixty days prior to entering the contract and still proceeded. (Ms. Damon Dep. 205.) “[I-]f a party who asserts fraud performs a contract and receives benefits from it after he determines the existence of fraud, he has waived the fraud or ratified the contract.” Bond v. Charlson, 374 N.W.2d 423, 429 (Minn.1985). Because the Damons learned that the assertion was untrue before they entered into the contract, a reasonable jury could not find that the Damons entered into the contract in reliance on the assertion.

F. Fraudulent Nondisclosure

The Court will now turn to the Damons’ fraudulent nondisclosure claim. “For nondisclosure to constitute fraud, ‘there must be a suppression of facts which one party is,under a legal or equitable obligation to communicate to the other, and which the other party is entitled to have communicated to him.’ ” Witzman v. Lehrman, Lehrman & Flom, 601 N.W.2d 179, 190 (Minn.1999) (quoting Richfield Bank & Trust Co. v. Sjogren, 309 Minn. 362, 244 N.W.2d 648, 650 (1976)).

As a general rule, one party to a transaction has no duty to disclose material facts to the other. However, [sjpecial circumstances may dictate otherwise. For example: (a) One who speaks must say enough to prevent his words from misle[ad]ing the other party[;] (b) One who has special knowledge of material facts to which the other party does not have access may have a duty to disclose these facts to the other party[;] (c) One who stands in a confidential or [fiduciary relation to the other party to a transaction must disclose material facts.”

Richfield Bank & Trust, 244 N.W.2d at 650 (emphasis added) (citations and internal quotation marks omitted). In addition to the duty to disclose element, the other elements of an ordinary fraud claim apply to a claim for fraudulent nondisclosure, including that the defendant intended for the plaintiff to rely on the omission, that the plaintiff reasonably relied on the omission, and that the plaintiff suffered pecuniary damages as a result. See Williams v. Heins, Mills & Olson, PLC, No. A09-1757, 2010 WL 3305017, at *3 (Minn.Ct.App. Aug. 24, 2010).

The Court will first address the duty to disclose. Under Minnesota law, “[a] fiduciary relationship' is characterized by a ‘fiduciary’ who enjoys a superior position in terms of knowledge and authority and in whom the other party places a high level of trust and confidence.” Carlson v. Sala Architects, Inc., 732 N.W.2d 324, 330 (Minn.Ct.App.2007) (citing Toombs v. Daniels, 361 N.W.2d 801, 809 (Minn.1985)). “[A]gency principles are preferred by the courts” as the mechanism by which a “fiduciary duty could be found to exist.” PMH Props., 263 N.W.2d at 801. Whether a fiduciary relationship exists is a question of fact. See Toombs, 361 N.W.2d at 809. Here, the Purchase Agreement indicated that Dan G. and Merl G. were the Damons’ agents, which could support a finding of a fiduciary relationship. Further, the Damons testify that they made clear to Dan G. that they placed their trust in him to guide them through the transaction, which could also support a finding of a fiduciary relationship. See Carlson, 732 N.W.2d at 331 (“[W]hile a relationship might not be fiduciary per se, the facts of the case might create such a relationship. Whether the facts here gave rise to a fiduciary relationship ... is not an issue for resolution by summary judgment .... ”); see also Gibson v. Coldwell Banker Burnet, 659 N.W.2d 782, 788 (Minn.Ct.App.2003) (discussing case-specific facts that gave rise to the creation of a fiduciary relationship between a real estate agent and client).

Having determined that genuine issues of material fact remain as to whether the Damons’ relationship to the Realtor Defendants allows the Damons to advance a fraudulent nondisclosure claim, the Court will now turn to substance of the Damons’ fraudulent nondisclosure claim to determine if it fails at this stage for other reasons. As with the fraud claim, the Damons point to several items that they believe amount to fraudulent nondisclosure, which the Court will address in turn. The Court will deny defendants’ motions for summary judgment, though it will limit the Damons’ claims substantially.

The Damons’ first allegation is that Dan G. committed fraudulent nondisclosure by failing to inform the Damons that they could comply with the § 1031 like-kind sale requirements by simply identifying potential properties by their deadline and not actually purchasing them. The Realtor Defendants contend that this particular claim fails because the Damons retained a separate § 1031 broker that informed them of the specific ways to comply with § 1031. (See Mr. Damon Dep. 63; see also Fourth Renz Aff., Ex. I.) “Reliance in fraud cases is generally evaluated in the context of the aggrieved party’s intelligence, experience, and opportunity to investigate the facts at issue.” Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 369 (Minn.2009). The Court finds that it was unreasonable as a matter of law for the Damons to rely on Dan G.’s omission when they had retained a separate broker specifically for the purpose of navigating the § 1031 process and that broker had informed them of the relevant rules.

The second alleged fraudulent nondisclosure is that Dan G. did not inform the Damons that other properties were available in the Rochester area in September 2005 that better met the Damons’ expressed needs. The Realtor Defendants do not move for summary judgment on this particular alleged omission. In any event, the Court finds that a reasonable jury could find that Dan G. failed to mention other potentially suitable properties in a deliberate effort to induce the Damons to purchase Compark’s property, and that Dan G.’s nondisclosure caused the Damons to purchase the building.

The Damons next allege that the Purchase Agreement was not signed prior to the September 8, 2005, deadline, and that the defendants’ committed fraudulent nondisclosure when they failed to inform the Damons of this fact. Defendants contend that this aspect of the Damons’ fraudulent nondisclosure claim fails because (1) there is no affirmative evidence that the agreement was, in fact, not timely signed, and (2) the Damons closed on the building despite not having received a signed copy of the Purchase Agreement beforehand. The Court finds that the second argument goes to the materiality of the alleged nondisclosure and entitles defendants to summary judgment with respect to this nondisclosure claim on the specific facts presented here. The Damons assert that they requested for Dan G. to provide the signed Purchase Agreement to Ms. O’Donohoe and that Dan G. was required to do. See Minn.Stat. § 82.71, subd. 4 (requiring real estate agents to provide documents including purchase agreements “at the time the documents are signed or become available”). The Damons assert, and defendants do not dispute, that neither the Damons nor Ms. O’Donohoe received a signed copy of the Purchase Agreement or received confirmation that the Purchase Agreement had been accepted by Compark. Nonetheless, the Damons closed on the building without inquiry or complaint. The Court therefore finds that the alleged omission (ii.e., failing to inform the Damons that the Purchase Agreement may not have been signed by September 8) was immaterial. The Damons have not presented credible evidence that would allow a reasonable jury to find that they would not have closed on the building had they been informed that the Purchase Agreement was signed prior to closing but after the deadline.

The Damons next make a series of allegations relating to an appraisal of the building that was allegedly conducted by Scott Renne at Associated Bank, which provided a loan to the Damons. The Damons allege that defendants failed to disclose that the appraisal existed, that the appraisal was for an inflated amount, that Renne was involved in fraudulent activities, and that the analysis in the appraisal was materially deficient. The Court finds that the allegations relating to the appraisal fail because Dan G. testified that he did not see the appraisal until the present action, (Dan G. Dep. 148:24-150:25), and the Damons present no evidence that the Realtor Defendants had knowledge of any of information in question.

The Damons also allege that defendants committed fraudulent nondisclosure by failing to inform the Damons that the defendants had a financial interest in the other Commerce Park properties that would compete with the Damons’ building for commercial tenants. The Court finds that this allegation fails because the Damons acknowledge that Dan G. informed them at their initial meeting that he and Merl G. were investors in Compark, the entity that owned the buildings in the development. (Ms. Damon Dep. 150:21-151:3, 389:9-11.)

Finally, the Damons allege that defendants failed to disclose the extent of the business relationships among the members of Compark, including the Realtor Defendants. The Court finds that the allegation fails because the Damons have presented no evidence that the relationships among the members of Compark would have been material to the Damons’ decision to purchase the building or that Dan G. withheld information about those relationships in an attempt to induce the Damons’ reliance.

G. Civil Theft

Defendants move for summary judgment on the Damons’ civil theft claim, brought pursuant to Minn.Stat. § 604.14, which provides, in relevant part:

Liability for theft of property. A person who steals personal property from another is civilly liable to the owner of the property for its value when stolen plus punitive damages of either $50 or up to 100 percent of its value when stolen, whichever is greater.

Minn.Stat. 604.14, subd. 1. The Compark Defendants move for summary judgment on the basis that the Damons consented to paying the purchase price and that the Compark Defendants had a “claim of right” to the purchase price based on the Purchase Agreement.

There is limited authority examining Minnesota’s civil theft statute. Although “a criminal complaint, conviction, or guilty plea is not a prerequisite to liability” for civil theft, id., subd. 4, courts rely on the criminal theft statute to determine whether a defendant’s conduct amounted to theft, see Popp Telcom, Inc. v. Am. Sharecom, Inc., Civ. No. 96-1177, 2003 WL 1610789, at *9 (D.Minn. Mar. 20, 2003), aff'd, 361 F.3d 482 (8th Cir.2004). The criminal theft statute identifies a wide range of conduct that amounts to theft, including “swindling, whether by artifice, trick, device, or any other means.” Minn. Stat. § 609.52, subd. 2(4). Under Minnesota law, “the victim’s receipt of something of value is not a defense to a charge of theft by swindle.” Popp Telcom, 2003 WL 1610789, at *9. The Minnesota Supreme Court has held that:

A man is none the less cheated out of his property, when he is induced to part with it by fraud, becausé he gets a quid pro quo of equal value. It may be impossible to measure his loss by the gross scales available to a court, but he has suffered a wrong; he has lost his chance to bargain with the facts before him. That is the evil against which the statute is directed.

State v. Lone, 361 N.W.2d 854, 860 (Minn. 1985) (quoting United States v. Rowe, 56 F.2d 747, 749 (2d Cir.1932)). “[T]he gist of the offense .is the cheating and defrauding of another by deliberate artifice” and “[n]o single definition can cover the range of possibilities for the .offense.” State v. Ruffin, 280 Minn. 126, 158 N.W.2d 202, 205 (1968).

On the basis of the limited authority available, the Court finds that the Damons’ allegation that they were induced to part with the purchase price by fraud potentially fall within the ambit of the civil theft statute. Although the allegedly fraudulent acts were not directly committed by the Compark Defendants, the Court found above that the Compark Defendants are potentially liable for the fraudulent acts by virtue of an agency relationship. Thus, the Court will deny the Compark Defendants’ motion for summary judgment on the Damons’ civil theft claim.

H. Conversion

Under Minnesota law, conversion is “an act of willful interference with [the personal property of another], done, without lawful justification, by which any person entitled thereto is deprived of use and possession.” Christensen v. Milbank Ins. Co., 658 N.W.2d 580, 585 (Minn.2003) (alteration in original) (internal. quotation marks omitted). “Although consent is a defense to conversion, consent through fraud is ineffective. Thus, the commission of fraud may be sufficient interference with property to support a claim of conversion.” Tuaolo v. Want Some Weather, Inc., Nos. A07-2139, A08-0014, A08-0044, 2008 WL 5136614, at *4 (Minn.Ct.App. Dec. 9, 2008) (citations and internal quotation marks omitted).

Defendants move for summary judgment on the basis that money cannot be thé basis for a conversion action. The Court finds that defendants’ contention is inconsistent with Minnesota law. For example, the Minnesota Court of Appeals affirmed a finding of liability for conversion in a case where the plaintiff alleged that he was fraudulently induced to invest $150,000 in a business venture. See Tuaolo, 2008 WL 5136614, at *1, 4. And this District recently rejected the identical argument raised by defendants in the present case after surveying Minnesota caselaw and locating several cases recognizing claims for conversion of money. See Cummins Law Office, P.A. v. Norman Graphic Printing Co., 826 F.Supp.2d 1127, 1183 (D.Minn.2011).

Defendants point to a Minnesota Court of Appeals’ decision that held that “[b]e-cause cash is liquid and designed to be transferred, it is a subject of conversion only when it is capable of being identified, and described as a specific chattel.” Halla v. Norwest Bank Minn., N.A., 601 N.W.2d 449, 453 (Minn.Ct.App.1999) (internal quotation marks omitted). However, Halla is distinguishable because the plaintiff was proceeding against a bank at which the alleged wrongdoer had deposited checks and cash, as opposed to proceeding directly against the alleged wrongdoer/ See id. at 450. Although the language quoted from Halla above could be read broadly, the Court will not apply Halla’s rule to the present ease because it appears to conflict with numerous more recent Minnesota cases. Thus, the Court will deny defendants’ motion for summary judgment on the Damons’ conversion claim.

I. Civil Conspiracy

To prevail on a civil conspiracy claim, a plaintiff must establish that defendants “agreed to accomplish an unlawful purpose, and took concerted actions to achieve that purpose.” Marty H. Segelbaum, Inc. v. MW Capital, LLC, 673 F.Supp.2d 875, 880 (D.Minn.2009) (citing Harding v. Ohio Cas. Ins. Co. of Hamilton, Ohio, 230 Minn. 327, 41 N.W.2d 818, 824 (1950)). The plaintiff is required to establish that multiple defendants agreed to commit a criminal act or intentional tort. See Senart v. Mobay Chem. Corp., 597 F.Supp. 502, 505 (D.Minn.1984). The conspiracy claim must be supported by specific facts tending to show agreement and concerted action. In re TMJ Implants Prods. Liab. Litig., 880 F.Supp. 1311, 1320 (D.Minn.1995).

In an earlier order denying defendants’ motion to dismiss the civil conspiracy claim, the Court held that the Damons had pleaded enough facts to allow a “reasonable inference that an agreement existed between at least two defendants to accomplish an unlawful act, and that some conduct towards that act occurred.” Damon v. Groteboer, Civ. No. 10-92, 2011 WL 886132, at *4 (D.Minn. Mar. 14,