                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 13-3145
                                    ____________

               JOHN A. BENNETT, M.D.; DEVON ROBOTICS, LLC.;
                       DEVON HEALTH SERVICES, INC.
                                                 Appellants
                                    v.

    ITOCHU INTERNATIONAL, INC; MEDSURG SPECIALTY DEVICES, INC;
        THOMAS N. APPLE; MOUNIR RABBAT; YOSHIHISA SUZUKI

                                    ____________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                       (D.C. Nos. 09-cv-01819, 09-cv-04123)
                     District Judge: Honorable J. Curtis Joyner
                                   ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                   June 2, 2014

             Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges.

                                (Filed: July 10, 2014)
                                    ____________

                                      OPINION
                                    ____________

HARDIMAN, Circuit Judge.

      Devon Robotics, LLC, Devon Health Services, Inc., and their owner, John

Bennett, M.D., appeal a post-trial judgment and a summary judgment on claims for
breach of contract, breach of duty to negotiate in good faith, and promissory estoppel,

and on a counterclaim for breach of contract. For the reasons that follow, we will affirm.

                                              I

       Because we write primarily for the parties, who are well acquainted with the case,

we recite only the facts and procedural history essential to our decision.

       This appeal arises from a soured partnership between two businessmen and their

companies. In 2007, Japan-based Itochu International, Inc., began to explore investment

opportunities in the United States health care industry. To that end, the head of Itochu’s

enterprise division, Mounire Rabbat, became acquainted with Dr. John Bennett and his

medical supply distribution company, Devon Health Services, Inc. (DHS). Rabbat and

Bennett discussed two opportunities for cooperation: a multi-million dollar Itochu

investment in DHS and a joint venture to sell medication-mixing robots.

       The projects never materialized, and this litigation ensued. Rabbat and Bennett

negotiated the DHS investment and even executed several non-binding letters of interest,

but Itochu never finalized the deal. The two did come to terms on the robot-selling joint

venture. Bennett formed a new company, Devon Robotics, Inc., that acquired and then

leased the distribution rights for the robot to an Itochu subsidiary, MedSurg. A

distribution agreement set out the responsibilities for both MedSurg and Devon Robotics.

The joint venture failed, however. MedSurg could not sell the robot, and each side

blamed the other for the failure. In the end, Devon Robotics terminated the distribution

agreement with MedSurg and filed this suit in the United States District Court for the

Eastern District of Pennsylvania.


                                             2
       Our review is limited to four claims and one counterclaim the District Court

adjudicated in that suit. Devon Robotics, DHS, and Bennett brought two claims of

promissory estoppel and Devon Robotics brought one claim of breach of a duty to

negotiate in good faith. The District Court entered summary judgment in favor of Itochu

and Rabbat on those claims. The parties went to trial on the competing claims of Devon

Robotics and MedSurg for breach of the distribution agreement. After the jury returned a

verdict in MedSurg’s favor, Devon Robotics, DHS, and Bennett filed this timely appeal.1

                                             II

                                             A

       Devon Robotics challenges the jury’s verdict on its claims for breach of the

distribution agreement. After trial, Devon Robotics renewed its motion for judgment as a

matter of law under Fed. R. Civ. P. 50(b), claiming that the verdict went against the

weight of evidence. The District Court disagreed and denied the motion.2 We review the

District Court’s denial of Devon Robotics’s motion de novo, viewing the evidence in the

light most favorable to MedSurg, as the prevailing party. See Acumed LLC v. Advanced

Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir. 2009). Judgment as a matter of law is

appropriate when the record is “critically deficient of that minimum quantity of evidence


       1
        The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction
under 28 U.S.C. § 1291.
       2
         Appellants also request a new trial as an alternative to the entry of judgment as a
matter of law. Because Devon Robotics did not ask for a new trial on these grounds in the
District Court, it has waived this argument. See Brown v. Philip Morris, Inc., 250 F.3d
789, 799 (3d Cir. 2001).



                                             3
from which a jury might reasonably afford relief.” Raiczyk v. Ocean Cnty. Veterinary

Hosp., 377 F.3d 266, 269 (3d Cir. 2004).

       Devon Robotics first alleged that MedSurg materially breached the distribution

agreement by failing to hire the contractually required minimum number of salespeople

and by failing to fill certain roles. Viewing the evidence in the light most favorable to

MedSurg as the verdict winner, we conclude that the jury could have reasonably found

that MedSurg substantially complied with its obligations. MedSurg introduced evidence

that Devon Robotics shared in the blame for MedSurg’s incomplete sales staff, even

firing two of MedSurg’s salespeople. Moreover, the jury could have reasonably found

that MedSurg’s breach was not material because of evidence showing that the failure to

sell robots was caused by performance problems with the robots themselves and the

economic recession, which made hospitals more cost-conscious. Accordingly, the jury

was entitled to conclude that MedSurg did not materially breach its staffing obligations

under the distribution agreement.

       Separately, Devon Robotics argued MedSurg breached the distribution agreement

by refusing to pay for a clinical trial on the robot. The jury was instructed, without

objection by Devon Robotics, that MedSurg’s breach must be excused if the jury found

Devon Robotics had “already decided to terminate the contract or was not acting in good

faith” when MedSurg’s duty to pay ripened. App. at 1458. MedSurg showed the jury an

email, sent several days before Devon Robotics demanded payment from MedSurg, in

which Bennett confirmed that Devon Robotics would terminate the distribution

agreement. On that evidence alone, the jury could have reasonably found that Devon


                                             4
Robotics decided to terminate the distribution agreement before it billed MedSurg for the

clinical trial, thus excusing MedSurg’s failure to pay. For these reasons, we perceive no

error in the District Court’s dismissal of Devon Robotics’s renewed motion for judgment

as a matter of law, and we will affirm its order.3

                                              B

       Devon Robotics claims it is entitled to a new trial because of a series of questions

at trial about its decision to sell a $7 million investment for $10. Its argument proceeds on

two fronts: that the testimony was irrelevant under Fed. R. Evid. 401 and unfairly

prejudicial under Fed. R. Evid. 403. We review evidentiary rulings for an abuse of

discretion. Acumed, 561 F.3d at 211. At trial, Bennett testified that Itochu caused Devon

Robotics’s financial demise. The evidence of Devon Robotics’s decision to sell $7

million in stock for $10 rebutted Dr. Bennett’s assertion, satisfying Rule 401’s relevance

standard. Devon Robotics claims that the danger of unfair prejudice, confusion of the

issues, and misleading the jury substantially outweighed the probative value of the

evidence in contravention of Rule 403, saying only that the evidence made Appellants

“appear dishonest.” Br. of Appellants at 49. We readily conclude that these bare

allegations fail to demonstrate an abuse of discretion and find no error in the District

Court’s denial of Devon Robotics’s motion for a new trial.

       3
         Devon Robotics also argues that the District Court erred in denying its post-
verdict motion for judgment as a matter of law on MedSurg’s counterclaim for breach of
the distribution agreement, which arose from Devon Robotics’s failure to pay
commissions. The District Court denied this motion because Devon Robotics never made
a pre-verdict motion for judgment as a matter of law, which is a prerequisite for the
District Court to consider a post-verdict motion. We see no error in the District Court’s
faithful application of the renewal requirement of Fed. R. Civ. P. 50(b).

                                              5
       For these reasons, we will affirm the order of the District Court denying Devon

Robotics’s motion for a new trial.

                                             III

       Before trial, the District Court entered summary judgment against Devon

Robotics, DHS, and Dr. Bennett on their claims for promissory estoppel and breach of

duty to negotiate in good faith. Appellants claim the District Court erred in holding that

their reliance on these promises was unreasonable as a matter of law. We exercise

plenary review over the District Court’s summary judgment. Horvath v. Keystone Health

Plan E., Inc., 333 F.3d 450, 454 (3d Cir. 2003). We will affirm if the moving party

establishes that there is no genuine dispute of material fact and that the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

       After reviewing the record before the District Court and considering its thorough

opinion disposing of these claims, we see no error in the summary judgment. Appellants

rooted their first promissory estoppel claim in alleged promises by Rabbat to complete

the investment that DHS and Itochu negotiated. The District Court held that Appellants’

reliance on these oral promises was unreasonable as a matter of law because the oral

promises were contradicted by writings signed by the parties. Throughout the

negotiations on the potential DHS investment, the parties executed non-binding letters of

interest that stated that any binding agreement would result only from a formal, written

contract and that the investment must win the approval of Itochu’s internal investment

committee—neither of which occurred. Appellants’ reliance on oral promises that

contradicted the parties’ signed writings was unreasonable as a matter of law.


                                             6
       Appellants’ second promissory estoppel claim arose from alleged oral promises by

Rabbat that Itochu would be an equal partner in the robot joint venture. However, Bennett

admitted that he knew at the time that Itochu’s participation in the joint venture was not

final until the Itochu investment committee approved the deal. In the view of the District

Court, Bennett acted on his own hunch that Itochu would join him in the venture and that

any reliance was unreasonable because he knew the deal was contingent. We agree with

the District Court that Bennett’s asserted reliance was unreasonable as a matter of law.

       Finally, Appellants argued that Itochu breached a duty to negotiate in good faith.

A duty to negotiate in good faith requires a binding agreement between the parties

expressing their commitment to negotiate together in good faith and reach a final

agreement. Channel Home Ctrs. v. Grossman, 795 F.2d 291, 299 (3d Cir. 1986). The

District Court granted Itochu summary judgment because Devon Robotics failed to

identify a specific promise to negotiate in good faith apart from Dr. Bennett’s

uncorroborated and conclusory allegations to that effect. See Celotex, 477 U.S. at 322.

Appellants argue that a term sheet executed in the course of negotiations on the DHS

investment included one such promise because the parties agreed to make “a firm and

committed effort to close” the deal. Another part of the term sheet, however, uses

unambiguous language to disclaim any intent by the parties to bind each other. That fact

is fatal to the claim. For these reasons, we will affirm the District Court’s summary

judgment.

                                            IV




                                             7
       For the foregoing reasons, we will affirm the order of the District Court denying

Appellants’ motion for judgment as a matter of law and for a new trial. Additionally, we

will affirm the District Court’s summary judgment on Appellants’ claims for promissory

estoppel and breach of a duty to negotiate in good faith.




                                             8
