¹ BACKGROUND The issues in this case were many. For brevity’s sake, this Court discusses those facts most relevant to this motion. At the heart of this dispute is another bout of litigation, the multi-district litigation (“MDL”) concerning Syngenta and its 2011 decision to commercialize genetically modified corn seed in the absence of Chinese approval to import corn with the modified trait, causing corn prices to drop dramatically in the United States. See In re Syngenta AG MIR162 Corn Litig., 65 F. Supp. 3d 1401 (J.P.M.L. 2014). The Judicial Panel on Multistate Litigation condensed the flurry of suits around the country into the District Court for the District of Kansas. But that did not stop Syngenta-related litigation elsewhere. Watts Guerra LLP and Mikal Watts (“Watts defendants”), lawyers with a focus on mass tort litigation, decided mass tort lawsuits against Syngenta would be more advantageous than taking part in the MDL, and proceeded in finding potential plaintiffs elsewhere. These other lawsuits were filed in Minnesota state court, where Syngenta’s North American seed business is based. The Syngenta MDL rejected removing these state proceedings into the Kansas-based federal proceedings. Instead, these state suits were consolidated in Hennepin County, Minnesota. Watts defendants would eventually file nearly 60,000 suits in state court against Syngenta. On December 7, 2018, the MDL Court certified a settlement class and approved a global settlement of claims against Syngenta, including claims that had been pending in the MDL, in the consolidated proceeding in Minnesota state court, and in federal court in Illinois. In re Syngenta AG MIR 162 Corn Litig., 357 F. Supp. 3d 1094 (D. Kan. 2018). The litigation was settled for $1.5 billion. As part of its project to market the Syngenta litigation, the Watts defendants contacted hundreds of attorneys in many states, entering into agreements to act as co- counsel on behalf of the affected farmers and grain shippers, agreeing to split attorneys’ fees. The attorneys orchestrated town hall meetings where interested plaintiffs could learn about the litigation and sign contingency fee agreements with the Watts defendants and local counsel. One such local law firm with whom the Watts defendants entered into a joint representation agreement was the firm Daniel M. Homolka, P.A. In November 2014, the Watts defendants and Daniel M. Homolka, P.A. and Mr. Daniel Homolka (“Homolka defendants’’) entered into a fee-sharing agreement where they agreed to share attorneys’ fees recovered on behalf of any farmer who agreed to participate in litigation against Syngenta and hire the Watts and Homolka defendants as their attorneys. Homolka in turn contacted attorneys James Hovland and Dan Rasmus, inviting them to participate in the project. In December 2014, Rasmus contacted Lundstrom to see if he would be interested in helping to market the Syngenta corn litigation project to farmers. Lundstrom, a farmer, also had marketing experience. On December 15, 2014, Lundstrom, Rasmus, Hovland, Homolka, and Hector Eloy Guerra met in a law office in Minnesota to discuss enlisting Lundstrom to assist in marketing the Syngenta corn litigation. Lundstrom alleged that Homolka asked Lundstrom how much money he would require per month to free him up to work on the project. Plaintiff also alleged that Homolka agreed to pay Lundstrom $10,000 per month “through the end of the project,” that is, until the litigation was dismissed or settled, to lease the web site LostCornIncome.com and for Lundstrom’s services in brokering and placing media on the site. The question of when these web-leasing payments were agreed to end were heatedly debated in the November 2021 jury trial and a centerpiece of this litigation. Plaintiff also claims that he agreed to engage in a host of other marketing related activities in exchange for further compensation. In addition to establishing and maintaining a web domain (lostcornincome.com), plaintiff claims he produced a 30- minute-long infomercial (“LOST CORN INCOME: Special Report’’), arranged and managed a toll-free telephone number for prospective clients to call, managed all media buys (for formats including radio, newspapers, and television), prepared fact sheets to give prospective agricultural clients, and prepared budgets for all of the above. Plaintiff also participated in town hall meetings used to solicit and attract Syngenta litigation clients. In addition to the question of how much Lundstrom was owed for these web- leasing payments, namely, when were they agreed to cease, two other promises were alleged to have been made. Plaintiff asserted that a promise was made by Mr. Homolka that he would be reimbursed for his traveling to participate in these town hall meetings with $50,000 for a new truck. Finally, and most importantly to Lundstrom, he argued before this Court and a jury of his peers that defendant Homolka promised him a $3.4 million bonus if he could sign up plaintiff farms whose claims totaled six million acres, i.e., that this bonus was non-discretionary. The theory presented by Lundstrom was that he was told by Homolka that if he accepted less money monthly “up front,” he would receive a higher bonus at the end of the project. Whether this promise of a multi-million- dollar bonus existed and was non-discretionary posed a critical question at trial. Despite the serious financial stakes at hand, no written agreement was ever drafted, because of purported concerns by defendants about fee-sharing between the defendants and Lundstrom, a non-lawyer. Without such an agreement on paper, the oral contract made by Homolka and what exactly it entailed, was the crux of this litigation. On November 12, 2021, a jury of eight found that Daniel M. Homolka P.A and Watts Guerra LLP were liable to the plaintiff for a breach of contract made by Mr. Homolka. However, the jury did not find that the fourth defendant, Mikal Watts, was culpable because Mr. Homolka was not acting as agent of Watts, but rather only Watts’ limited liability partnership. The jury also did not find that Mr. Homolka — and thus, any of the defendants — had fraudulently induced Mr. Lundstrom. Accordingly, the jury awarded Lundstrom $175,000 in compensatory damages and decided that he was not entitled to prejudgment interest. The Court entered an amended judgment in favor of Mr. Lundstrom against defendants Daniel M. Homolka, P.A. and Watts Guerra LLP jointly and severally. The critical inquiry in this Memorandum and Opinion is first, whether this theory of agency liability was properly before the jury, and second, whether Watts Guerra can be bound by the broken promises made by Mr. Homolka, under either an actual or ostensible agency theory. To invade the province of the jury should only be done in the rarest of occasions. This case does not rise to the high bar to disrupt the place of the jury in our civil justice system. | Because the jury found that Mr. Homolka was acting as an agent for Daniel M. Homolka, P.A., (a professional association), only the professional association is liable for the acts of its agent, i.e., Mr. Homolka, not the individual in his personal capacity. Il. WHETHER AGENCY THEORY LIABILITY WAS PROPERLY HEARD BY JURY Watts Guerra argues that this Court should not even entertain theories of agency liability because Lundstrom failed to plead such a theory in his Complaint. See FED. R. Civ. P. 8(a)(2) (requiring plaintiff to include “a short and plain statement of the claim showing that the pleader is entitled to relief.”). In turn, plaintiff contends the matter was tried with the explicit or implicit content of the defendant, thus satisfying Federal Rule of Civil Procedure 15(b)(2)’s exception to the general requirement of pleading all theories in the party’s Complaint. Rule 15(b)(2) states: When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue “The goal of Rule 15(b) is to promote the objective of deciding cases on the merits rather than on the relative pleading skills of counsel.” Am. Family Mut. Ins. Co. v. Hollander, 705 F.3d 339, 348 (8th Cir. 2013). See also Baker v. John Morrell & Co., 266 F. Supp. 2d 909, 927 (N.D. Iowa 2003) aff'd, 382 F.3d 816 (8th Cir. 2004) (“The intent of Rule 15(b) is to ‘provide the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.’”) (quoting Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)). Here, the question is whether, within the liberal construction of the Federal Rules favoring all relevant claims to be put forward in one bout of litigation, this theory of liability may stand under Rule 15(b)(2). See Standard Title. Ins. Co. v. Roberts, 349 F.2d 613, 622 (8th Cir. 1965) (“The federal courts have generally and consistently recognized that, as a general rule, amendments under Rule 15 should be allowed with liberality.””). The United States Court of Appeals for the Eighth Circuit has identified two steps necessary to allow such an amendment to the pleadings during or after trial on grounds of implied consent: (1) did the “‘parties have [] actual notice of an unpleaded issue;” and (2) have they “‘been given an adequate opportunity to cure any surprise resulting from the change in the pleadings?’” Dunne v. Libbra, 448 F.3d 1024, 1030 (8th Cir. 2006) (quoting Garner v. Mo. Dept. of Mental Health, 439 F.3d 958, 960 (8th Cir. 2006)). See also Am. Family Mut. Ins. Co., 705 F.3d at 348 (“[W]e have held a party will be deemed to have acquiesced in trying an unpleaded issue when the issue is ‘not inconsistent with’ the position taken by the non-moving party earlier in the proceedings.’”) (quoting Baker, 382 F.3d at 831). First, Watts Guerra had “actual notice” of this unpleaded issue. True, Lundstrom would have been wise to simply plead agency theory in his original Complaint, but subsequent events paved way for this theory of liability to stand. Lundstrom first raised an agency theory of liability for Watts Guerra in his memorandum in opposition to the defendant’s motion for summary judgment, filed nearly six months before the ultimate jury trial. See Doc. 94 at 21-23. Watts Guerra accordingly resisted the plaintiffs theory of agency liability in its reply brief on June 3, 2021. See doc. 104 at 13-15. And in its Memorandum and Order addressing the varying claims on summary judgment, this Court specifically addressed agency theories of liability. See doc. 121 at 11-12. Realizing that this agency theory was a heated dispute in this matter, Watts Guerra’s own proposed jury instructions offered explanations of a purported agency relationship. See doc. 133 at 37— 42. Clearly the defendant had adequate notice that such a theory would be presented at trial. Next, Watts Guerra had “‘an adequate opportunity to cure any surprises resulting from the change in the pleadings.’” Brand v. Nat’] Union Fire Ins. Co. of Pittsburgh, PA, 934 F.3d 799, 803 (8th Cir. 2019) (quoting Cook v. City of Bella Villa, 582 F.3d 840, 852 (8th Cir. 2009)). The defendant had nearly six months from being first presented with this theory of agency liability before ultimately presenting its case before the jury in November 2021. Watts Guerra was represented by well-seasoned and well-respected counsel more than capable of attacking this theory of liability.2, The defendant made a ? Further, the ultimate disposition of the jury showed counsel was partially successful in contesting the question of agency liability at trial. Daniel Homolka was found not to be an agent of Mikal Watts, evidencing that the jury accepted part of counsel’s arguments on questions of agency liability. forceful case against agency liability in its reply brief to its motion for summary judgment, as well as in front of the jury. Finally, this is buoyed by the “liberal backdrop” of the Federal Rules of Civil Procedure. See generally Popp Telcom v. Am. Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000) (noting that federal courts have a “liberal viewpoint towards leave to amend,” which “should normally be granted absent good reason for a denial.”) Rule 15(b) stands so that piecemeal litigation may be avoided. See Baker v. John Morrell & Co., 266 F. Supp. 2d 909, 927 (N.D. Iowa 2003) aff'd, 382 F.3d 816 (8th Cir. 2004) (“The intent of Rule 15(b) is ‘to provide the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.’”) (quoting Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)). To reject a possible theory of agency liability when all parties have briefed and argued the issue would be to allow the “tyranny of formalism” to reign over the litigated substance of this case. Wright & Miller, § 1491, AMENDMENTS TO CONFORM TO THE EVIDENCE — IN GENERAL, (3d ed.). Because Watts Guerra had actual notice of Lundstrom’s theory of agency liability and adequate notice to respond (an opportunity they forcefully pursued), the theory was properly permitted under Rule 15(b). Il. WHETHER WATTS GUERRA CAN BE FOUND CULPABLE AS MATTER OF LAW ON AGENCY THEORY OF LIABILITY A. Legal Standard Pursuant to Federal Rule of Civil Procedure 50, a court should render judgment as a matter of law “‘when no reasonable jury could have found for the nonmoving party.’” Monohon v. BNSF Ry. Co., 17 F.4th 773, 780 (8th Cir. 2021) (quoting S. Wine & Spirits of Nev. v. Mountain Valley Spring Co., 646 F.3d 526, 533 (8th Cir. 2011)). Judgment as a matter of law is appropriate “‘after a party has been fully heard on an issue’” so that the Court can “‘enter judgment accordingly if a reasonable jury could not find in that party’s favor.” Jacobson Warehouse Co., Inc. v. Schnuck Mkts., Inc., 13 F.4th 659, 674 (8th Cir. 2021) (quoting Adeli v. Silverstar Auto, Inc., 960 F.3d 452, 458 (8th Cir. 2020)). Like on considering motions for summary judgment, this Court must assess whether the evidence is “‘so one-sided that one party must prevail as a matter of law.’” Adeli, 960 F.3d at 458 (quoting White v. Union Pac. R.R. Co., 867 F.3d 997, 1000 (8th Cir. 2017)). It bears emphasizing that “‘the law places a high standard on overturning a jury verdict because of the danger that the jury’s rightful province will be invaded when judgment as a matter of law is misused.’” Washington v. Denney, 900 F.3d 549, 558 (8th Cir. 2018) (quoting Bavlsik v. Gen. Motors, LLC, 870 F.3d 800, 805 (8th Cir. 2017)). When deciding a motion for judgment as a matter of law, this Court must: (1) consider the evidence in the light most favorable to the prevailing party, (2) assume that all conflicts in the evidence were resolved in favor of the prevailing party, (3) assume as proved all facts that the prevailing party’s evidence tended to prove, and (4) give the prevailing party the benefit of all favorable inferences that may reasonably be drawn from the facts proved. Ryan Data Exchange, Ltd. v. Graco, Inc., 913 F.3d 726, 732-33 (8th Cir. 2019). When exercising diversity jurisdiction, state law controls on motions for judgment as a matter of law. See Roberson v. AFC Enters., Inc., 602 F.3d 931, 934 (8th Cir. 2010). After the close of evidence and the jury has rendered its verdict, a party may renew its prior motion for judgment as a matter of law. Fed. R. Civ. P. 50(b). Defendant has properly preserved its motion for judgment as a matter of law, which is now renewed. B. Discussion In South Dakota, agency is “the representation of one called the principal [Watts Guerra] by another called the agent [Dan Homolka] in dealing with third persons [Lowell Lundstrom].” SDCL 59-1-1. See Dakota Provisions, LLC v. Hillshire Brands Co., 226 F. Supp. 3d 945, 952 (D.S.D. 2016) (‘Agency is a creature of state law and, in South Dakota, is governed by both statutory and common law.””) (quoting Babinski Props. v. Union Ins. Co., 833 F. Supp. 2d 1145, 1150 (D.S.D. 2011)). In discerning whether there is an agency relationship, courts look to “the relations of the parties as they exist under their agreement or acts.” Kasselder v. Kapperman, 316 NW2d 628, 630 (S.D. 1982). The agency relationship can be actual or ostensible. A.P. & Sons Const. v. Johnson, 657 NW2d 292, 297 (S.D. 2003). This Court will analyze whether either theory of liability is proper in this matter against Watts Guerra under the deferential standard of review required on a Rule 50(b) motion. 1. Whether Daniel Homolka was an Actual Agent of Watts Guerra when Making the Broken Promises Watts Guerra asserts that Mr. Homolka exceeded his actual authority as the law firm’s agent when making the broken promises to Mr. Lundstrom. Plaintiff counters, arguing that Homolka was equipped with actual authority to bind Watts Guerra on all negotiations for Lundstrom’s payment, including the promises at the core of the breach of oral contract. The question here is whether Homolka’s actual agency to bind the defendant on certain expenses related to the mass tort claims lends actual authority for subsequent promises, such as reimbursement for the truck and continued web-leasing payments. Actual agency “exists when a principal and agent expressly agree to enter into an agency relationship.” Id. (citing Dahl v. Sittner, 429 NW2d 458, 462 (S.D. 1988)). See SDCL 59-1-4. Unlike for ostensible agency, the inquiry here is the authority created “by manifestations from the principal to the agent.” Fed. Land Bank of Omaha v. Sullivan, 430 NW2d 700, 701 (S.D. 1988) (citing SDCL 59-3-2). Simply put, the level of inquiry is the relationship between the principal and agent without consideration of the perceptions of any third party. When an actual agency relationship exists, “the principal may be held liable for the agent’s negligent or wrongful acts.” Dakota Provisions, LLC v. Hillshire Brands Co., 226 F. Supp. 3d 945, 952 (D.S.D. 2016). To find the existence of an actual agency relationship, Lundstrom must prevail on all the following elements: ‘(1) manifestation by the principal that the agent shall act for him, (2) the agent’s acceptance of the undertaking, and (3) the understanding of the parties that the principal is to be in control of the undertaking.’ Id. (quoting A.P. & Sons Const. v. Johnson, 657 NW2d 292, 297 (S.D. 2003)). As the party advocating for an actual agency relationship, Mr. Lundstrom held the burden to assert such a theory of liability at trial, measured against Watts Guerra’s steep burden to disrupt the jury verdict. See Kasselder v. Kapperman, 316 NW2d 628, 631 (S.D. 1982) (explaining the party asserting agency has burden of proof to “affirm[] its existence.”). See also Am. Prairie Const. Co. v. Hoich, 560 F.3d 780, 793 (8th Cir. 2009) (“South Dakota courts have held, ‘[i]n the law of agency, a principal will be liable for contracts made in its behalf by an agent if the agent was authorized to enter into the agreements.””) (emphasis in original) (quoting Fed. Land Bank of Omaha, 430 NW2d at 701 (S.D. 1988)). Here, defendant readily admits that Homolka was acting as an actual agent of the law firm. However, that is not the end of the inquiry. Yes, Homolka was an agent of Watts Guerra “regarding certain expenses related to the mass tort claims,” but that does not mean that any action Homolka pursued related to the Syngenta litigation is part of the parties’ actual agency relationship. DEFENDANT WATTS GUERRA, LLP’S BRIEF SUPPORTING RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW, doc. 198 at 9. Lundstrom failed to provide ample evidence that Mr. Homolka was within his mutually agreed authority when making offers for a truck reimbursement, non-discretionary bonuses, or web-leasing payments stretching into 2017. No substantive evidence asserted that the defendant’s representatives were in a room with Homolka and Lundstrom when Homolka made these broken promises, or offered sufficient evidence that Watts Guerra was aware of these additional promises stretching beyond the budgets defendant approved. Rather, there is not sufficient evidence for the jury to consider that Watts Guerra was approving budgetary requests after September 2015; any promise for further compensation, reimbursement, or bonus was made by Homolka without the backing of an actual agency relationship with defendant. Watts Guerra rightly points this Court’s attention to one of the South Dakota Supreme Court’s principal cases on actual agency authority. In Kasselder v. Kapperman, Jerome Kapperman (the principal) authorized his agent, James Schladweiler, to pay no more than $3,000 to have his road grader’s defective engine repaired. 316 NW2d 628, 629 (S.D. 1982). Kapperman was clear: the upper bounds that he would pay for the repair was $3,000. Nevertheless, agent Schladweiler had the engine repaired at a total cost of $6,441.06. Id. Because the agent only had actual authority up to $3,000, any subsequent purchase beyond this price would have exceeded Schladweiler’s authority.