E&I Global Energy Services, Inc.; E&C Global, LLC v. Liberty Mutual Insurance Company

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3739
___________________________
E&I Global Energy Services, Inc.; E&C Global, LLC
Plaintiffs - Appellants
v.
Liberty Mutual Insurance Company
Defendant - Appellee
____________
Appeal from United States District Court
for the District of South Dakota - Southern
____________
Submitted: October 22, 2024
Filed: April 4, 2025
____________
Before LOKEN, SMITH, and GRASZ, Circuit Judges.
____________
SMITH, Circuit Judge.
E&I Global Energy Services, Inc. and E&C Global, LCC (collectively,
“Plaintiffs”) sued Liberty Mutual Insurance Company (Liberty), alleging several
breach-of-contract and tort claims arising from Liberty’s promise to pay E&C for
the completion of a construction project from which Plaintiffs were eventually

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terminated. The district court1 granted summary judgment for Liberty on Plaintiffs’
unjust enrichment claim, and after a bench trial, the district court found in Liberty’s
favor on all remaining claims. On appeal, Plaintiffs argue that the district court erred
in (1) denying Plaintiffs’ untimely request for a jury trial; (2) excluding an expert
witness report filed after the expert report deadline; (3) finding that there was no
evidence of an assignment of rights between E&C and E&I under the completion
contract; (4) holding for Liberty on their fraud, deceit, and negligent
misrepresentation claims; and (5) granting summary judgment for Liberty on their
unjust enrichment claim. We affirm.
I. Background
The United States, through the Western Area Power Administration (WAPA),
contracted with Isolux to build the VT Hanlon Substation in Montrose, South
Dakota. Liberty and the Insurance Company of the State of Pennsylvania (ISOP)
(collectively, “Sureties”) issued a performance bond that guaranteed Isolux’s
performance and a payment bond that guaranteed Isolux’s payment to its
subcontractors and suppliers.
Jeff Bruce owns E&I and E&C, two distinct legal entities with different
business operations. Isolux approached Bruce for help on the substation project.
Upon agreement, E&I became a subcontractor of Isolux. In June 2016, E&I arrived
onsite with supplies and equipment. Bruce testified that he found the project in
disarray; he arrived on site with no plans, disks, drawings, or specifications. He
viewed the project’s viability as uncertain.
In December 2016, WAPA terminated Isolux for failure to complete the
project by the completion date. This termination triggered Liberty’s performance
bond. Liberty, in search of a new completion contractor, hired Professional
Construction Consulting (PC2) to investigate the project. David Mattingly, the PC2
1 The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota.

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vice president, visited the project site. Bruce introduced Mattingly to the project,
gave Mattingly a tour, and showed Mattingly construction issues. Mattingly also met
with WAPA representatives, including Jonathan Dittmer, WAPA’s contracting
officer. Dittmer gave Mattingly four CDs with project information. The first CD
contained drawings, specifications, and solicitations, which were then available
online. The second CD contained aerial pictures of the site that lacked information
about the materials onsite. The third and fourth CDs contained project submittals.2
After the visit, Mattingly, Bruce, and the PC2 president negotiated a
completion contract in which the Sureties tendered E&C as the completion
contractor to WAPA. During these negotiations, Bruce received documents and
information, including a bill of materials that Bruce used to prepare his initial bid.
Before the parties signed the completion contract but after E&C submitted some
bids, Mattingly sent Bruce an email that said, “Jeff, [t]hese are the drawings that
Jonathan [Dittmer] provided to me. Jonathan indicated they include all of the
revisions to date.” R. Doc. 108-1, at 1. However, Mattingly did not give Bruce the
four CDs. Mattingly testified that he believed Bruce had the submittals and that the
contents of the first CD were available online. He also thought that Bruce had other
documents and a good understanding of the project.
Bruce testified that he knew he was missing documents when negotiating the
completion contract but bid anyway at WAPA’s direction. Bruce also testified that
when he signed the completion contract, he noticed that the agreement listed E&C,
his other company, as the completion contractor and asked Dittmer to change it to
E&I, the correct company. Dittmer told him “not to worry” and that he would print
a new document. R. Doc. 112, at 536. The agreement language was never corrected.
On March 28, 2017, the Sureties, E&C, and WAPA signed a tender agreement
in which the Sureties tendered E&C to WAPA. This agreement fulfilled the Sureties’
2 “[S]ubmittals are documents that a contractor submits to an engineer or
architect to confirm the contractor fully and accurately understands the various
aspects of a project.” R. Doc. 118, at 10.

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obligation under the performance bond but not the payment bond. The next day, the
Sureties and Plaintiffs executed the completion contract that listed E&C as the
completion contractor and E&I as a subcontractor. Under the agreement, E&C
would finish the project, and Liberty promised to pay E&C the completion price.
Liberty also promised to pay E&C for certain items excluded from the completion
price. The completion contract had a non-assignment clause that said E&C had “no
right to assign any of its rights or obligations hereunder without the prior written
consent of [WAPA] and Sureties.” R. Doc. 108, at 149. On April 23, 2017, WAPA
and E&I executed a follow-on contract in which E&I promised to complete the
project.
Ultimately, E&I acted as the completion contractor because E&C could not
obtain a bond required by the contract. In July 2017, Bruce sent Liberty a letter
stating that Liberty owed E&I money under the completion contract for items
excluded from the completion price. Carolyn Banks, a senior claims specialist at
Liberty, responded in September 2017 and denied that Liberty owed E&I money. In
this letter, Banks noted that the Sureties “tendered E&I, as completion contractor, to
WAPA.” R. Doc. 109-1, at 769. Banks wrote on behalf of Liberty and ISOP, but
ISOP did not sign the letter. In May 2018, WAPA terminated E&I for failure to
complete the project by the completion date.
In February 2020, Plaintiffs sued Liberty for (1) breach of the completion
contract, (2) breach of the implied covenant of good faith and fair dealing, (3) unjust
enrichment, (4) fraud and deceit, and (5) negligent misrepresentation.
A. Jury Trial Demand
The original complaint did not include a jury trial demand. In May 2020,
Plaintiffs filed a discovery report with the district court. The discovery report
acknowledged that the Plaintiffs failed to request a jury trial, said that they would
file a motion under Federal Rule of Civil Procedure 39(b) to request a jury trial, and
represented that Liberty would not oppose that motion. Plaintiffs, however, never

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filed a Rule 39(b) motion. They did file a second amended complaint in late 2021,
but that complaint also did not include a jury demand.
In September 2022, the district court entered a scheduling order that set a jury
trial date. In December 2022, Liberty, the defendant, filed a motion requesting that
the court correct the scheduling order to reflect a bench trial because neither the
original nor amended complaint included a jury trial request. Plaintiffs filed a motion
in opposition arguing that the court should grant a jury trial because Liberty
previously agreed not to oppose their motion for a jury trial. In their motion,
Plaintiffs noted that Liberty referenced a jury trial several times throughout the
litigation. They also contended that Plaintiffs’ omission should be excused because
of the COVID-19 pandemic. Plaintiffs later separately filed the original proposed
Rule 39(b) motion. The district court granted Liberty’s motion to correct the order
to set the case for a bench trial. The court concluded that Plaintiffs failed to timely
request a jury trial and did not timely file the Rule 39(b) motion. The court also noted
that Plaintiffs did not justify the delay nor did they show prejudice.
On the first day of the bench trial, Plaintiffs orally sought reconsideration of
the court’s decision to proceed with a bench trial. The district court denied the
motion. After the bench trial, Plaintiffs again filed a motion for reconsideration of
the jury trial issue, which the court also denied. The court noted that Plaintiffs’
opposition to Liberty’s motion to correct was arguably not a Rule 39(b) motion but
still construed it as such. The court rejected Plaintiffs’ COVID-19 excuse because
the pandemic failed to justify the substantial delay. In fact, Plaintiffs made numerous
other filings during the height of the pandemic. The court also rejected Plaintiffs’
argument that Liberty should be estopped from arguing that Plaintiffs waived their
right to a jury trial. Plaintiffs relied on Liberty’s consent to the Rule 39(b) motion,
which was given over two years prior, and highlighted Liberty’s counsel’s references
to a jury trial in some filings and discussions with Plaintiffs. The court viewed these
reasons as invalid bases for excusing Plaintiffs’ failure to timely submit a jury
demand.

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B. Expert Report
Plaintiffs’ deadline to file their expert witness reports was July 7, 2021.
Supplementations to those reports were due 20 days before trial. On June 7, 2021,
Plaintiffs timely served Liberty with Aaron Raddock’s expert report. On December
15, 2021, Plaintiffs served Liberty with Raddock’s “Supplemental Report” that
provided an additional $3.69 million of damages that E&I suffered in “loss of
enterprise value . . . in addition to the damages calculated in my Expert Report dated
June 7, 2021.” R. Doc. 49-5, at 4. Liberty filed a motion to exclude this additional
expert report as untimely. Upon review, the district court excluded the titular
Supplemental Report as an untimely new report, not a qualifying supplemental
report.
In reaching its decision, the district court applied Wegener v. Johnson, 527
F.3d 687 (8th Cir. 2008). In Wegener, we rejected the plaintiff’s argument for
reversal of the district court’s exclusion of her expert witness report because of
untimeliness. Id. at 692. The court in Wegener noted the prejudice to the opposing
party for the plaintiff’s untimely disclosure of an expert’s supplemental testimony
even if it was limited to impeachment or rebuttal evidence. Id. at 693. We also
instructed district courts to consider a non-exhaustive list of factors when fashioning
a remedy for untimely disclosure of an expert report: “the reason for noncompliance,
the surprise and prejudice to the opposing party, the extent to which allowing the
information or testimony would disrupt the order and efficiency of the trial, and the
importance of the information or testimony.” Id. at 692.
Here, the district court followed Wegener’s guidance. First, the court
concluded that Plaintiffs’ reason for noncompliance favored exclusion because
Plaintiffs had the information on loss of enterprise damages when they submitted the
first report. Second, the surprise and prejudice to Liberty favored exclusion because
Liberty would have to devote significant time and resources investigating the claims
in the new report. Third, trial disruption favored inclusion because a trial date was
not yet set. And fourth, the importance of the testimony favored exclusion because
Plaintiffs alleged other damages, and this supplemental evidence was not needed to

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seek them. Further, though Plaintiffs requested a lesser sanction—to reopen
discovery and allow Liberty to depose Raddock—the court rejected that request to
avoid unjustified trial delay. In sum, the court found the failure to file the report was
neither substantially justified nor harmless.
C. Summary Judgment and Bench Trial
The district court entered partial summary judgment in favor of Liberty on
Plaintiffs’ unjust enrichment claim. The court said that unjust enrichment is an
equitable remedy that applies when there is no valid, enforceable contract. However,
Plaintiffs pleaded that there was a valid contract between E&I, E&C, and Liberty,
and “Liberty admitted there was a contract.” R. Doc. 60, at 33. As a result, the court
found that unjust enrichment was not applicable.
The district court held a bench trial in February 2023 and found Liberty not
liable on all remaining claims. First, the court held that Liberty was not liable for
breach of contract to E&I because Liberty’s promise to pay was to E&C, the
completion contractor, not E&I, and there was no evidence showing an assignment
of E&C’s rights to E&I. Liberty was also not liable to E&C because Plaintiffs’
claimed damages were to E&I, not E&C. For these reasons, the court also denied
Plaintiffs’ claim for contractual breach of the implied covenant of good faith and fair
dealing.
Second, the court held that Liberty was not liable for fraud and deceit.
Plaintiffs claimed that Liberty misled them regarding what equipment and supplies
Bruce should include in his bid, but Plaintiffs failed to show a false statement about
the equipment status. Even if there was a false statement, the court found that there
was no intent to deceive because Mattingly believed that Bruce had the information.
Plaintiffs also claimed that Liberty intentionally withheld project drawings from the
CDs, and the court found that Mattingly recklessly made a false statement in his
email to Bruce. However, there was no intent to deceive because Mattingly testified
that he thought Bruce had the drawings, which was supported by evidence that those
drawings were online. Plaintiffs also claimed that Liberty withheld 533 pages of

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schematics, but the district court rejected this argument because Mattingly did not
have those documents when he emailed Bruce.
Third, the court held that Liberty was not liable for negligent
misrepresentation. Again, the court found no intent to induce Bruce’s reliance on his
statements because Mattingly testified that he thought Bruce already had access to
the information on the CDs. Further, the court found that Bruce did not reasonably
rely on Mattingly’s statements. Although Mattingly testified that it would be
reasonable for Bruce to rely on his statements, the court disagreed. Bruce knew the
project was in disarray, introduced Mattingly to the project, gave Mattingly a tour of
the site, informed Mattingly of construction issues, and signed the completion
contract knowing that he was missing documents.
After trial, Plaintiffs filed a motion to reconsider all four claims, which the
district court denied in its entirety. The court reiterated most of its findings from its
order following the bench trial. In fact, the court emphasized that, “[i]n addition to
the reasons set forth in the original factual findings, the court makes explicit what
was implicit in its original finding: the court credits Mattingly’s testimony based on
his credible demeanor while on the stand.” R. Doc. 133, at 5.
Plaintiffs timely appealed five of the trial court’s orders: (1) denial of their
motion for jury trial; (2) exclusion of their expert’s report; (3) rejection of their
breach-of-contract claim; (4) rejection of their fraud, deceit, and negligence claims;
and (5) rejection of their unjust enrichment claim.
II. Discussion
“After a bench trial, we review legal conclusions de novo and factual findings
for clear error.” Est. of Smith by Smith v. Primerica Life Ins. Co., 54 F.4th 550, 557
(8th Cir. 2022) (emphasis omitted). “Under the clearly erroneous standard, we will
overturn a factual finding only if it is not supported by substantial evidence in the
record, if it is based on an erroneous view of the law, or if we are left with the definite

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and firm conviction that an error was made.” Wright v. St. Vincent Health Sys., 730
F.3d 732, 737 (8th Cir. 2013) (internal quotation marks omitted).
A. Denial of a Jury Trial
Parties requesting a jury trial must do so “no later than 14 days after the last
pleading directed to the issue is served.” Fed. R. Civ. P. 38(b)(1). “Issues on which
a jury trial is not properly demanded are to be tried by the court.” Fed. R. Civ. P.
39(b). However, a district court “may, on motion, order a jury trial on any issue for
which a jury might have been demanded.” Id. “A district court’s denial of a jury trial
is reviewed for an abuse of discretion.” Shelton v. Consumer Prods. Safety Comm’n,
277 F.3d 998, 1011 (8th Cir. 2002).
Plaintiffs did not request a jury trial in any pleading. Plaintiffs’ last pleading
was the second amended complaint, which was filed in November 2021. Although
the discovery report filed in May 2020 said that Plaintiffs would file a Rule 39(b)
motion to request a jury trial that Liberty would not oppose, Plaintiffs did not file
that motion before the close of pleadings. In December 2022, once the pleadings
were closed, Liberty then moved to correct the court’s scheduling order setting a
jury trial date, and Plaintiffs opposed. The district court granted Liberty’s motion to
correct and denied Plaintiffs’ request for a jury trial.
The district court did not abuse its discretion in denying Plaintiffs’ request for
a jury trial. This case is similar to Littlefield v. Fort Dodge Messenger, where we
found that a district court did not “abuse[] its discretion in failing to grant a jury trial
when a belated request was made for one at the pretrial conference.” 614 F.2d 581,
585 (8th Cir. 1980). There, the plaintiff “offer[ed] no justification for the failure to
make an appropriate demand other than inexperience, and he point[ed] to no
prejudice resulting from denial.” Id. Like Littlefield, we are unpersuaded by
Plaintiffs’ justifications for not timely filing their jury trial request.

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First, Plaintiffs argue that their error should be excused3 because the motion
“simply fell through the cracks” during the COVID-19 pandemic. Oral Arg. at 9:42.
As the district court said, Plaintiffs’ argument that COVID-19 precluded them from
filing a Rule 39(b) motion is weak because they made numerous other filings
throughout the height of the pandemic with no noted difficulty.
Second, Plaintiffs argue that their error should be excused under a quasi-
estoppel theory because Liberty promised not to oppose any Rule 39(b) motion and
Liberty’s counsel referenced a jury trial several times before filing the motion to
correct. The district court did not abuse its discretion in rejecting this argument.
Liberty’s consent to Plaintiffs’ Rule 39(b) motion in May 2020, without more, did
not preclude Liberty from filing the motion to correct in December 2022. Consent
to file a motion does not stop the court’s calendar nor convey the right to relief never
formally requested. Plaintiffs never filed the agreed-upon motion. Any reliance
Plaintiffs placed on Liberty’s position in May 2020 was not reasonable after the time
to request a jury trial had expired.
Plaintiffs also argue that they were prejudiced through deprivation of their
jury trial right and because the preparation of jury instructions would have uncovered
the assignment issue on which they suffered defeat in the bench trial. We are
unconvinced that these claimed prejudices show that the district court abused its
discretion, especially where Plaintiffs did not argue that they were prejudiced until
their motion for reconsideration after completion of the bench trial. Cf. Littlefield,
614 F.2d at 585 (noting that “[g]ranting [the] request for a trial by jury” at that stage
of the litigation “would have further delayed final disposition of the matter”).
3 Plaintiffs ask this court to adopt an “excusable neglect” standard, but we
decline to do so. Plaintiffs’ authority is not related to a request for a jury trial, and
Federal Rule of Civil Procedure 39(b) does not discuss “excusable neglect.” See
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 391 (1993)
(discussing the “excusable neglect” standard from the Federal Rules of Bankruptcy);
Fink v. Union Cent. Life Ins. Co., 65 F.3d 722, 724 (8th Cir. 1995) (applying the
Pioneer standard to interpret the meaning of “excusable neglect” in Federal Rule of
Appellate Procedure 4(a)(5)).

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Plaintiffs argue that Littlefield is different because the plaintiff there “engaged in a
pattern of conduct apparently intended to delay trial.” See id. That distinction
notwithstanding, we still find Littlefield instructive—especially given the “heavy
burden resting upon [the plaintiff] to demonstrate that the court abused its discretion
in refusing a jury trial.” First Wis. Nat’l Bank of Rice Lake v. Klapmeier, 526 F.2d
77, 80 (8th Cir. 1975). Thus, we find that the district court did not abuse its discretion
in denying Plaintiffs’ request for a jury trial.
B. Exclusion of the Expert Report
Plaintiffs’ deadline to file expert reports was July 7, 2021. Plaintiffs filed
Raddock’s initial expert report on June 7, 2021, but they did not file Raddock’s
additional report on loss of enterprise damages until December 15, 2021. This
second report provided an estimate of $3.69 million in damages that E&I suffered
“in addition to” the damages calculated in the original expert report. R. Doc. 49-5,
at 4. The district court excluded this second report because it found it to be a new
report, not a supplemental report. The court found that the failure to timely file the
new report was not substantially justified or harmless. The district court also
declined Plaintiffs’ request for a lesser sanction. Plaintiffs requested that the court
reopen discovery and allow Liberty to depose Raddock on the additional issue. The
court denied the requested alternative sanction because it would impose additional
costs on Liberty and would require the court to extend the expert witness deadline,
delaying the trial. “We . . . review the district court’s exclusion of expert testimony
for abuse of discretion.” Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 899 (8th Cir.
2010).
If a party fails to timely file an expert report, “the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
The court may, on motion, impose a different sanction. Id. at (c)(1)(C). “Rule
37(c)(1) makes exclusion of evidence the default, self-executing sanction for the
failure to comply with Rule 26(a).” Vanderberg v. Petco Animal Supplies Stores,
Inc., 906 F.3d 698, 705 (8th Cir. 2018). “Under Rule 37(c)(1), exclusion occurs

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automatically by operation of the rule; the rule permits, but does not require, the
imposition of an alternative sanction on a party’s motion.” Id. “When fashioning a
remedy, the district court should consider, inter alia, the reason for noncompliance,
the surprise and prejudice to the opposing party, the extent to which allowing the
information or testimony would disrupt the order and efficiency of the trial, and the
importance of the information or testimony.” Wegener, 527 F.3d at 692.
We conclude that the district court did not abuse its discretion in excluding
the additional expert report. The district court considered the Wegener factors and
found that exclusion was appropriate. Information related to Plaintiffs’ loss of
business was available to them when they submitted the initial expert report. Liberty
was prejudiced by Plaintiffs’ filing misstep because it would expend substantial time
and resources investigating and rebutting the damages asserted in the additional
report. Although the court had not yet set a trial date when the expert report was
excluded, it did note that the case would be delayed if discovery was reopened to
allow Liberty to investigate these claims. Although the testimony was important to
establish some damages, the damages asserted in the second report were not
Plaintiffs’ only damages, so they could still prove their claims without the additional
report. Thus, we find that the district court did not abuse its discretion in concluding
that Plaintiffs’ untimely report was not substantially justified nor harmless.
C. Breach of Contract
Plaintiffs sued Liberty for breach of contract, alleging that Liberty failed to
compensate them as promised under the completion contract.4 Under South Dakota
law, to prove breach of contract, the plaintiff “must show ‘(1) an enforceable
promise; (2) a breach of the promise; and (3) resulting damages.’” Dziadek v.
Charter Oak Fire Ins. Co., 867 F.3d 1003, 1009 (8th Cir. 2017) (quoting Bowes
Constr., Inc. v. S.D. Dep’t of Transp., 793 N.W.2d 36, 43 (S.D. 2010)). The district
4 The amended complaint technically sued for breach of the tender agreement,
but that contract was between Plaintiffs and WAPA, not Liberty. Further, the district
court and the parties discuss the completion agreement as the relevant contract.

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court found that Liberty made a promise to E&C, but E&C failed to make a prima
facie showing for relief because it suffered no damages. Although E&I suffered
damages, it could not prove Liberty made an enforceable promise to E&I unless
Plaintiffs could show that E&C assigned its rights and responsibilities under the
completion contract to E&I.5 The district court found no evidence of a valid
assignment between E&C and E&I.
We agree with the district court that Plaintiffs did not show a valid assignment
of E&C’s rights under the completion contract to E&I. Under South Dakota law,
oral assignments are generally valid, and “any language, however informal, will be
sufficient to show the intent of the assignor.” Northstream Invs., Inc. v. 1804 Country
Store Co., 697 N.W.2d 762, 766 (S.D. 2005). “Regardless of how it is made, an
assignment must contain clear evidence of the intent to transfer rights, must describe
the subject matter of the assignment, and must be noticed to the obligor.” Id. “[I]t
must be clear that the party intended a present transfer of rights and did not merely
bind himself to make a future transfer.” Id.
The district court did not clearly err in finding that there was no evidence of a
present intent to transfer E&C’s rights under the completion contract to E&I. Bruce
testified that he asked WAPA to change the completion contractor to E&I when he
read the completion contract. Bruce’s testimony may show that he wanted E&I to be
the completion contractor, but it does not establish a present intent to assign E&C’s
rights to E&I. Cf. Fritzel v. Roy Johnson Constr., 594 N.W.2d 336, 339 (S.D. 1999)
(finding evidence of an assignment of an estate’s cause of action because the plaintiff
submitted an affidavit from a party stating that the estate was closed after the cause
of action was transferred by agreement of the beneficiaries). Further, Plaintiffs argue
that there is evidence of an assignment because E&I ultimately acted as the
5 Plaintiffs argue that Liberty waived the assignment issue because it failed to
raise it as an affirmative defense. First, this is not an affirmative defense because
Plaintiffs must show an assignment to prove an element of their claim. Second,
Liberty did plead it because it argued in its answer that E&C suffered no damages
and that Liberty made no promise to E&I.

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completion contractor. Again, this does not show a present intent to transfer E&C’s
responsibilities to E&I. In Fritzel, although the assignment was oral and informal,
there was an affidavit that the parties agreed to transfer the cause of action to the
assignee, and that was sufficient. Here, Plaintiffs have provided no such evidence.
Therefore, we affirm the district court’s holding that Liberty is not liable for breach
of contract.
D. Fraud, Deceit, and Negligent Misrepresentation
Plaintiffs sued Liberty for one count of fraud and deceit and one count of
negligent misrepresentation. After the bench trial, the district court found that
Liberty was not liable on either claim. Under South Dakota law, fraud and deceit
require an intent to deceive. See Stockmen’s Livestock Mkt., Inc. v. Norwest Bank of
Sioux City, 135 F.3d 1236, 1243 (8th Cir. 1998). Similarly, negligent
misrepresentation requires an “intent to induce a particular action.” Fisher v. Kahler,
641 N.W.2d 122, 126 (S.D. 2002). The district court found that Mattingly made a
false statement in his email to Bruce because he did not give Bruce the CDs from
Dittmer, but Liberty was not liable for fraud or negligent misrepresentation because
Mattingly “did not intend to deceive” Bruce, R. Doc. 118, at 29, nor did he “inten[d]
to induce Bruce to rely on [his] representations,” id. at 33. Further, Liberty was not
liable for negligent misrepresentation because Bruce did not reasonably rely on
Mattingly’s statements. Intent is a question of fact. See Sporleder v. Van Liere, 569
N.W.2d 8, 11 (S.D. 1997) (“Questions of fraud and deceit are generally questions of
fact and as such are to be determined by the jury.” (internal quotation marks
omitted)); In re K-tel Int’l, Inc. Sec. Litig., 300 F.3d 881, 894 (8th Cir. 2002)
(“Generally, the issue of whether a particular intent existed is a question of fact for
the jury.”). Accordingly, we review the district court’s factual findings for clear
error. Plaintiffs argue that these findings are reversible, clear error. We disagree.
The district court’s finding that Mattingly did not have the requisite intent is
not clearly erroneous. Ample evidence in the record supports this finding. Mattingly
testified that he believed Bruce had access to the documents and the information on
the CDs and that Bruce had a good understanding of the project. But cf. Brandriet v.

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Norwest Bank S. Dakota, N.A., 499 N.W.2d 613, 616–17 (S.D. 1993) (upholding a
jury verdict finding defendant liable for fraudulent misrepresentation—which
requires “the intent to deceive and for the purpose of inducing the other party to act
upon it”—because the defendant made false representations “to induce [the plaintiff]
to keep banking” with the defendant). The district court indicated that it found no
intent to deceive because it “credit[ed] Mattingly’s testimony based on his credible
demeanor while on the stand.” R. Doc. 133, at 5. To the extent that Plaintiffs argue
that the district court should not have credited Mattingly’s testimony, we are
unpersuaded to disturb its finding. See Wright, 730 F.3d at 739 (“[A] district court’s
credibility determinations in a bench trial, like a jury’s credibility determinations in
a jury trial, are virtually unassailable on appeal.” (internal quotation marks omitted)).
The district court also rejected the negligent misrepresentation claim because
it found that Bruce did not reasonably rely on Mattingly’s statements. Under South
Dakota law, to prove negligent misrepresentation, the plaintiff must show justifiable
reliance on the statement. See Fisher, 641 N.W.2d at 126–27. Justifiable reliance is
a question of fact. See id. at 127 (finding a question of fact on whether the plaintiffs
actually and justifiably relied on the representations). Accordingly, we review for
clear error.
We find no clear error in the district court’s finding that Bruce did not
reasonably rely on Mattingly’s statements. Plaintiffs argue that there was reasonable
reliance because Mattingly testified that it would be reasonable for Bruce to rely on
his representations. The district court acknowledged this evidence but still found any
reliance was unreasonable. Bruce testified that he knew he was missing documents
but bid anyway at the direction of WAPA, not Mattingly. Bruce arrived on site
before Liberty. He testified that he knew the project was risky and in bad shape.
Thus, the district court’s factual finding was “supported by substantial evidence in
the record,” and Plaintiffs have provided no authority to show—nor argued—that
this finding was “based on an erroneous view of the law.” See Wright, 730 F.3d at
737 (explaining the clearly erroneous standard).

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Therefore, we affirm the district court’s finding that Liberty is not liable for
fraud, deceit, and negligent misrepresentation.
E. Unjust Enrichment
Plaintiffs also argue that the district court erred in granting summary judgment
for Liberty on their unjust enrichment claim. The district court granted summary
judgment for Liberty because it found that unjust enrichment “is unavailable when
a valid, enforceable contract governs the dispute.” R. Doc. 60, at 31. “[B]ecause E&I
consistently represented through its pleadings that it entered into a valid, enforceable
contract with Liberty, and because Liberty admitted there was a contract,” the district
court found that unjust enrichment was not available and dismissed that count. Id. at
33. For the first time on appeal, Plaintiffs argue that the district court “should have
revisited its analysis” for their unjust enrichment claim after the bench trial because
the district court found that “E&I did not have a valid contract with [Liberty] for
payment of the materials.” Appellant’s Br. 32. Because Plaintiffs did not raise this
argument below, we decline to address it. See Orr v. Wal-Mart Stores, Inc., 297 F.3d
720, 725 (8th Cir. 2002).
III. Conclusion
For the foregoing reasons, we affirm.
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