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March 13, 2026 Get Citation Alerts Download PDF Add Note

Edible Arrangements, LLC v. Cheikh Mboup, et al.

District Court, N.D. Georgia

• Citations: None known
• Docket Number: 1:23-cv-01158

• Precedential Status: Unknown Status

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (11.1K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

EDIBLE ARRANGEMENTS, LLC,

 Plaintiff,                                                       

      v.                     CIVIL ACTION FILE                    

                             NO. 1:23-CV-1158-TWT                 

CHEIKH MBOUP, et al.,

 Defendants.                                                      

               OPINION AND ORDER                                  

This is a fraud and breach of contract case. It is before the Court on
Plaintiff Edible Arrangements, LLC (“Edible”) Motion for Sanctions 1
[Doc. 188], Motion to Strike [Doc. 191], and Motion for Summary Judgment
[Doc. 195]. For the reasons set forth below, the Court GRANTS in part and
DENIES in part Plaintiff Edible’s Motion for Sanctions [Doc. 188], GRANTS
the Motion to Strike [Doc. 191], and GRANTS the Motion for Summary
Judgment [Doc. 195].

I. Background2

Plaintiff Edible Arrangements, LLC alleges that Defendants Cheikh

Mboup and E.A. International LLC (“EAI”) embezzled millions of dollars from

1 Edible formally styles this motion as a “Motion to Strike and for
Sanctions Against Defendants for Their Bad Faith Discovery Conduct.”

2 The operative facts on the Motion for Summary Judgment are taken
from the parties’ Statements of Undisputed Material Facts and the responses
thereto. The Court will deem the parties’ factual assertions, where supported
by evidentiary citations, admitted unless the respondent makes a proper
objection under Local Rule 56.1(B).

Edible while Mboup was employed as Edible’s Chief Operating Officer between
2019 and 2022. (1st Am. Compl. ¶ 16, 19–30, 60–63, 84–88.) The facts are
highly disputed.

According to Edible, Mboup deposited over $1.2 million in “rebate
checks” made payable to Edible (or one of Edible’s affiliates) into EAI’s bank
account, which he exclusively controlled. (Pl.’s Statement of Undisputed
Material Facts ¶ 5.) EAI is not affiliated with Edible Arrangements, LLC.
Mboup admits that he deposited these checks into his personal EAI bank

account. (Defs.’ Resp. to Pl.’s Statement of Undisputed Material Facts ¶¶ 4–5.)

He testified that his deposits were authorized by Tariq Farid, Edible’s CEO,
(Defs.’ Resp. Br. in Opp’n to Pl.’s Mot. for Sanctions, Ex. 1 (“Defs.’ Mboup Dep.
Excerpts A”), at 23:10–24 [Doc. 193-1]), and EAI testified that Farid and
Mboup openly discussed the concept of creating the EAI entity, (Defs.’ Resp. to
Pl.’s Statement of Undisputed Material Facts, Ex. 2 (“EAI Dep.”), at 197:17–
198:23 [Doc. 222-2]). According to Mboup’s testimony, Mboup and Farid
operated a separate company known as Halal Brands, LLC (“Halal Brands”)

that shuttered, so Farid authorized Mboup to take home vendor checks to
provide the compensation that was otherwise expected through Halal Brands.
(Defs.’ Mot. for Summ. J., Ex. 17 (“Mboup Dep. Excerpts B”),3 at 23:25–24:16

3 Although the Defendants’ Motion for Summary Judgment was later

withdrawn, the Court will consider Exhibit 17 for the purposes of the present
motions because they Defendants have effectively reincorporated it through
later briefing and filings.

2

[Doc. 202-19].) Mboup testified that he and Farid would meet repeatedly to “go
through the rebate check folder” and divvy up the checks between the two of
them as “compensation.” (Defs.’ Mboup Dep. Excerpts A, at 23:16–24.)

Separately, Edible alleges that Mboup negotiated a contract between
“Edible Arrangements International, Inc.” (“EAII”) and a media company
known as Active Media in order to siphon additional funds into his personal
EAI bank account. (1st Am. Compl. ¶ 64–67.) The media-purchasing contract,
which was executed by Active Media and EAII, provided that Active Media
would make upfront and reconciliation payments to EAII in exchange for

EAII’s commitment to purchase media from Active Media. ( Pl.’s Statement
of Undisputed Material Facts ¶ 7.) While Edible (not EAII) paid Active Media
for several media contracts under the terms of the purchase agreement, Mboup
deposited the upfront and reconciliation payments into his personal E.A.
International LLC bank account. (1st Am. Compl. ¶¶ 73–78.) According to
Edible, “Edible Arrangements International, Inc.” is a fictitious company and
not affiliated with Edible. (1st Am. Compl. ¶ 67. Defs.’ Resp. to Pl.’s

Statement of Undisputed Material Facts ¶ 6 (citing checks deposited by Edible
but made out to EAII as evidence that EAII is equivalent to Edible).) Rick
Forshay of Active Media testified that Active Media believed the contracts and
business were solely between it and Edible. (Pl.’s Mot. for Summ. J., Ex. 2, at
38:17–40:22, 105:19–23 [Doc. 195-4].) The Defendants assert that Active’s
payments to EAII (Mboup) served as consideration for Mboup’s work
3

facilitating the relationship between Edible and Active and that Farid
endorsed this setup. ( Defs.’ Resp. to Pl.’s Statement of Undisputed
Material Facts ¶ 24 (citing Compl. ¶¶ 18, 60); Defs.’ Mboup Dep. Excerpts B,

at 23:25–24:16.) But they admit that “Mboup never told Active Media that the
payments were going to an entity that he controlled that was separated from
his employer.” ( ¶ 28; ¶ 29 (admitting that EAI had no

relationship with Active).)

In its First Amended Complaint, Edible alleges the following claims:
(1) breach of contract against Mboup, (2) breach of fiduciary duties against

Mboup, (3) aiding and abetting breach of fiduciary duties against EAI, (4) theft
by taking and theft by deception against both Defendants, (5) money had and
received against both Defendants, (6) fraud and fraudulent concealment
against both Defendants, (7) civil conspiracy against both Defendants, and
(8) attorney’s fees and expenses against all Defendants.4

The Defendants filed counterclaims in response. The thrust of the
Defendants’ counterclaims is that Edible’s suit breaches the offer letter that

Mboup signed upon being hired at Edible. The offer letter includes the
following paragraph regarding “Competitive Ventures”:

During your employment with Edible Arrangements, you may

engage in or possess an interest in other business ventures, and

Edible Arrangements shall have no rights by virtue of your
employment to any of the income or profits derived therefrom,

4 “All Defendants” refers to Mboup, EAI, and unknown “Defendant XYZ
Corporations” that were allegedly implicated in the fraudulent scheme.

4

and the pursuit of any such venture, even if competitive with our

business of the Company, shall not be deemed wrongful or

improper. You shall not be obligated to disclose or present any

particular opportunity to Edible Arrangements even if that

opportunity is of a character that, if disclosed or presented to us,
could be taken by us. You shall not, however, be permitted to use

trade secrets or confidential or proprietary information of Edible
Arrangements for any such independent business venture or

opportunity.

(Pl.’s Statement of Undisputed Material Facts ¶ 13; Defs.’ Countercls., Ex. A
(“Offer Letter”),5 at 2–3 [Doc. 15-1].) The Defendants allege that Edible’s suit
seeks to deprive Mboup of funds obtained by the business ventures authorized
in the offer letter and by Farid. (Countercls. ¶¶ 22, 29 [Doc. 132].)

Edible has filed three motions. First, it seeks sanctions against the
Defendants in the form of striking their Amended Answer to Edible’s First
Amended Complaint and paying attorney’s fees, pursuant to Rules 37(d) and
37(c)(1) and the Court’s inherent authority. Second, it moves to strike part of
the Defendants’ counterclaims as “immaterial, impertinent, or scandalous,”
pursuant to Rule 12(f). Third, it moves for summary judgment as to the
Defendants counterclaims.

5 The Defendants attached this exhibit to their counterclaims [Doc. 15]
against Edible’s Initial Complaint, then reincorporated those counterclaims
into their counterclaims against Edible’s First Amended Complaint [Doc. 132].
5

II. Legal Standard

A. Motion for Sanctions

Edible invokes three types of authority through which the Court could

impose sanctions on the Defendants: (1) Rule 37(d); (2) Rule 37(c); and (3) the
Court’s “inherent” authority.

Under Rule 37(d), a party may move for sanctions if another party “fails
to serve its answers, objections, or written response” to an interrogatory. Fed.
R. Civ. P. 37(d)(1)(A)(ii). But that motion “must include a certification that the
movant has in good faith conferred or attempted to confer with the party failing

to act in an effort to obtain the answer or response without court action.” Fed.
R. Civ. P. 37(d)(1)(B). The available sanctions under Rule 37 include those
available under Rule 37(b)(2)(A)(i)–(vi) as well as the payment of attorney’s
fees “caused by the failure, unless the failure was substantially justified.” Fed.
R. Civ. P. 37(d)(3). Rule 37(b)(2)(A)(i)–(vi) permits the following sanctions:
(i) directing that the matters embraced in the order or other

designated facts be taken as established for purposes of the
action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated

matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party.

6

Fed. R. Civ. P. 37(b)(2)(A)(i)–(v).

Under Rule 37(c), a party may move for sanctions if another party “fails
to provide information or identify a witness as required by Rule 26(a) or (e).”

Fed. R. Civ. P. 37(c)(1). As relevant here, Rule 26(e) requires parties to
“supplement or correct” their responses to interrogatories or requests for
production “in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, if the
additional or corrective information has not otherwise been made known to the
other parties during the discovery process or in writing.” Fed. R. Civ.

P. 26(e)(1)(A) (emphasis added). The Court may prohibit a party that violates
Rule 26(e) from “us[ing] that information or witness to supply evidence . . .
unless the failure was substantially justified or is harmless.” Fed. R. Civ.
P. 37(c)(1). It may also order the payment of attorney’s fees “caused by the
failure,” “inform the jury of the party’s failure,” or impose sanctions available
under Rule 37(b)(2)(A)(i)–(vi).

Lastly, the Court possesses “inherent power . . . to manage [its] own

affairs so as to achieve the orderly and expeditious disposition of cases.”
, 851 F.3d 1218, 1223 (11th

Cir. 2017) (citation omitted). Under this power, the Court may “sanction a
party who has acted in bad faith, vexatiously, wantonly, or for oppressive
reasons. (quoting , 568 U.S. 371, 382 (2013));

(“The key to unlocking a court’s inherent power is a finding of bad
7

faith.”). The Eleventh Circuit cautions, however, that this power “must be
exercised with restraint and discretion.”

B. Motion to Strike

Under Rule 12(f), the Court may on its own or by motion strike all or a
portion of a “pleading” that contains “an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions
to strike are generally “disfavored,” and courts regularly deny such “drastic”
measures “unless the matter sought to be omitted has no possible relationship
to the controversy, may confuse the issues, or otherwise prejudice a party

                 , [267 F.R.D. 407, 410](https://www.courtlistener.com/opinion/8775528/allen-v-life-insurance-co-of-north-america/#410) (N.D. Ga. 2009) (citation  

omitted); , 289 F.R.D. 697, 699 (S.D. Fla.

2013) (citation omitted).

C. Motion for Summary Judgment

Summary judgment is appropriate only when the pleadings,

depositions, and affidavits submitted by the parties show that no genuine issue
of material fact exists, and that the movant is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a), (c). The court should view the evidence and draw
any inferences in the light most favorable to the nonmovant.

, 398 U.S. 144, 158–59 (1970). The party seeking summary
judgment must first identify grounds that show the absence of a genuine issue
of material fact. , 477 U.S. 317, 323–24 (1986). The

burden then shifts to the nonmovant, who must go beyond the pleadings and
8

present affirmative evidence to show that a genuine issue of material fact
exists. , 477 U.S. 242, 257 (1986).

III. Discussion

As explained below, the Court grants in part and denies in part Edible’s
Motion for Sanctions. It is granted as to the request to strike the Defendants’
Amended Answer to Edible’s First Amended Complaint and denied as to all
other relief requested therein. The Court additionally grants Edible’s Motion
to Strike and grants Motion for Summary Judgment on all counts (Counts I–
III) in the Defendants’ counterclaims.

A. Motion for Sanctions

Edible asks this Court to strike the Defendants’ Answer pursuant to
Rule 37(d), Rule 37(c), or the Court’s inherent authority. Its request focuses on
two accusations: (1) the Defendants knowingly lied in their discovery
responses about whether Mboup had “received” checks from vendors other

than Active Media and whether they possessed documents related to the same,
and (2) Mboup lied to Edible and under oath about graduating from Lehigh

University. Edible argues that both falsehoods were material because it was
aware of only the vendor checks from Active Media and no other vendor at the
time of the Initial Complaint and because Mboup’s lie about his education
constitutes part of his scheme to get hired at Edible and siphon its funds.
Edible claims that the Defendants’ false discovery responses extend to
both interrogatories and requests for production. In Interrogatory No. 5, Edible
9

asked the Defendants to “[i]dentify each and every payment that [the
Defendants] received: (a) from Active Media; (b) from any Edible vendor; or
(c) related to any Edible contract.” (Pl.’s Mot. for Sanctions, Ex. 1 (“Mboup

Discovery Response”), at 6 [Doc. 188-1]; Pl.’s Mot. for Sanctions, Ex. 2 (“EAI
Discovery Response”), at 7 [Doc. 188-2].) Mboup responded that “he [was] not
aware of any payments directed to him as described in this request.”6 (Mboup
Discovery Response, at 7.) EAI responded that “the only payments of which it
is aware that would be responsive to this request were identified in Plaintiff’s
complaint and the exhibits thereto.” (EAI Discovery Response, at 7.)

In Request for Production No. 8, Edible asked Mboup to produce “[a]ll
Documents referring or relating to any payments [the Defendants] received:
(a) from Active Media; (b) from any other Edible vendor; or (c) related to any
Edible contract.” (Mboup’s Discovery Response, at 13.) Mboup responded by
“incorporat[ing] and reassert[ing] his objections and response to Interrogatory
No. 5.” ( ) Additionally, in Request for Production No. 9 for Mboup and No. 8
for EAI, Edible asked the Defendants to produce “[a]ll Documents referring to

or relating to the information in [their] responses to any of Edible’s
Interrogatory Requests.” (Mboup Discovery Response, at 13; EAI Discovery

6 The Court notes that Mboup’s response, as well as EAI’s, was subject
to objections, including that (1) the Defendants “d[id] not have knowledge of
all ‘Edible vendors’ or ‘Edible contracts,’ both of which are vague and
ambiguous phrases,” and (2) the “responsive information is in Plaintiff’s
possession and custody.” (Mboup’s Interrogatory Response, at 7; EAI’s
Interrogatory Response, at 7.)

10

Response, at 13.) In response and subject to prior objections, the Defendants
affirmed that they would produce relevant non-privileged documents. (Mboup
Discovery Response, at 13; EAI Discovery Response, at 13.)

Edible argues the Defendants’ responses were “blatant” lies, as Mboup
later clarified in his deposition that he “was absolutely aware” that EAI
“received over a million dollars of payments from multiple other Edible vendors
[besides Active Media] at the time” of the discovery responses. (Defs.’ Resp. Br.
in Opp’n to Pl.’s Mot. for Sanctions, at 6.) Edible further contends that the
Defendants responded in bad faith to the discovery requests, intending to

mislead Edible into believing that Mboup only deposited checks from Active
Media. Mboup and EAI failed to correct their responses at any point in the
twenty-month period between providing their responses and Edible’s later
discovery of checks from multiple other vendors totaling more than $1 million.
Edible claims it only became aware of the other vendor checks after being
notified of a separate criminal investigation and subsequently serving a
third-party subpoena on PNC Bank. (Reply Br. in Supp. of Pl.’s Mot. for

Sanctions, at 2, 7 [Doc. 215].) Edible further states that the Defendants’
falsehoods “caus[ed] undue delay and disruption to this litigation” and “wasted
time and expense,” as the revelation prompted Edible to “conduct an internal
investigation, file an amended complaint, serve supplemental discovery, and
subpoena third parties.” ( at 7.) The estimate of Mboup’s unlawful deposits
increased from $2.5 million in the Initial Complaint to $3.9 million in the First
11

Amended Complaint.

The Defendants offer two primary responses. First, they explain that
they did not lie in their discovery responses, quibbling with the meaning of

“received” in Edible’s requests. Mboup testified that he did not, strictly
speaking, “receive[ ]” any checks from Edible’s vendors; rather, he “received”
checks directly from Edible’s CEO, Tariq Farid, which were made out from
Edible’s vendors. (Defs.’ Mboup Dep. Excerpts A, at 21:24–22:11 (“All the
rebate checks [he] received were , not from any Edible

vendor.” (emphasis added)).) Because the discovery requests asked the

Defendants about payments “received” from “any Edible vendor,” the
Defendants suggest that Mboup’s discovery responses were not false—or, at
most, an “inconsistency” rather than “false testimony”. ( Defs.’ Resp. Br. in
Opp’n to Pl.’s Mot. for Sanctions, at 5–7 [Doc. 193].) Second, the Defendants
contend that Edible was not prejudiced or otherwise harmed because it learned
of all the vendor payments during the discovery period and before Mboup’s
deposition such that the company “was [ ] able to examine Defendant Mboup

at length about any and all of those checks, and that PNC account.” (Defs.’
Resp. Br. in Opp’n to Pl.’s Mot. for Sanctions, at 6–7 (citation omitted).)
In addition to the Defendants’ supposedly false responses to written
discovery, Edible claims that Mboup also lied under oath about his educational
background. Mboup testified in his deposition that he graduated from Lehigh
University with an undergraduate degree in statistics and finance. (Pl.’s Mot.
12

for Summ. J., Ex. 4 (“Pl.’s Mboup Dep. Excerpts”), at 11:21–12:16 [Doc. 195-6].)
A third-party subpoena to Lehigh University revealed that he fabricated his
educational background, as the university has no record of Mboup’s

attendance. ( Pl.’s Resp. Br. in Opp’n to Defs.’ Mot. for Discovery,
Ex. 5 [Doc. 156-5].) Edible explains that this falsehood is material because
Mboup repeated this same lie while applying for a position with Edible,
becoming a deliberate and “first step in furtherance of his scheme to steal
money from Edible.” (Pl.’s Mot. for Sanctions, at 8 [Doc. 188].) Mboup’s Lehigh
credentials are represented in other places such as in a 2022 article featuring

him. ( Pl.’s Mot. for Sanctions, Ex. 6, at 3 [Doc. 188-6].) The Defendants
respond that Mboup’s educational background is immaterial, the content of the
deposition testimony is not an allowable justification for Rule 37(c) sanctions,
and Edible has cured the issue through its subsequent subpoena. (Defs.’ Resp.
Br. in Opp’n to Pl.’s Mot. for Sanctions, at 10–11.)

Edible requests the drastic remedy of striking the Defendants’ Amended
Answer to in its entirety. Along with its request to strike, Edible also requests

reasonable expenses and attorney’s fees from the Defendants. (Pl.’s Mot. for
Sanctions, at 2.) As explained below, the Court holds that sanctions are
appropriate under Rule 37(d) and the Court’s inherent authority.

i. Rule 37(d)

As an initial matter, the Court notes that sanctions under Rule 37(d) are
unavailable because the certification required for such sanctions is deficient.
13

In making its sanctions motion under Rule 37(d), Edible must certify that it
“attempted to confer with” the Defendants “in good faith” to “obtain the answer
or response without court action.” Fed. R. Civ. P. 37(d)(1)(B). The present

certification attests that Edible’s counsel attempted to confer in good faith with
defense counsel between February and July of this year to “resolve the dispute”
but that “such attempts . . . were unsuccessful.” (Pl.’s Mot. for Sanctions, at
21.) However, both Edible and the Defendants appear to agree that Edible did
not in fact confer about the Defendants’ failure to identify all discoverable
vendor checks. (Defs.’ Resp. Br. in Opp’n to Pl.’s Mot. for Sanctions, at 15–16;

Reply Br. in Supp. of Pl.’s Mot. for Sanctions, at 14–20 (“[T]here was no
formal conference.”).) Conferral need not take the form of an in-person
conversation or call, but Edible’s counsel apparently did not even reach out
over email or in any other form to the Defendants’ counsel; rather it relied
exclusively on the formal tools of discovery. Although Edible felt that Mboup
was being non-responsive and unhelpful to its supplemental discovery
requests, ( Reply Br. in Supp. of Pl.’s Mot. for Sanctions, at 15 & n.53), that

is not equivalent to conferral between counsel.

The Court declines to read Rule 37(d)’s conferral requirement as
optional. Edible relies on , 992 F. Supp. 1390 (S.D. Ga. 1998), to argue that the conferral requirement is not required where
“utter futility has been demonstrated.” at 1411. But Rule 37(d)

                       14                                         

unequivocally requires a certification that conferral efforts have been made.7
Regardless, Edible has failed to show that conferral would be utterly futile,
even if the Court were to accept as true that the Defendants lied in their

discovery responses and about Mboup’s educational background.

, 992. F. Supp. at 1406–07, 1411 (finding conferral unnecessary where
there were at least ten documented instances of a defendant lying under oath,
violating court orders, or otherwise attempting to obstruct the discovery
process). Therefore, the failure to comply with the certification requirement is
fatal to Edible’s request for Rule 37(d) sanctions.

ii. Rule 37(c) and the Court’s Inherent Authority

Pursuant to Rule 37(c) and the Court’s inherent authority, the Court
finds that the only appropriate remedy in this case is to strike the Defendants’
Amended Answer to Edible’s First Amended Complaint. Striking a pleading in
whole or in part is a sanction authorized by Rule 37(c) and within the Court’s
discretion following a finding of the Defendants’ bad faith. Fed. R. Civ.
P. 37(c) (authorizing sanctions outlined in Rule 37(b)(2)(A)(iii)); , [851

F.3d at 1223](https://www.courtlistener.com/opinion/4376783/purchasing-power-llc-v-bluestem-brands-inc/#1223) (11th Cir. 2017) (quoting , 568 U.S. at 382 (2013)).

As best the Court can tell, Mboup and EAI repeatedly and willfully
misrepresented facts or misled Edible during the discovery process. As a result,

7 The Court notes that Edible’s motion technically does include a
certification averring its conferral efforts as required by Rule 37(d), but
Edible’s later clarification in briefing that conferral did not occur is sufficient
to render the certification null for sanctions purposes.

15

the Defendants successfully hid—for almost two years—at least $1.4 million
in checks that were deposited in EAI’s bank account. These checks are at the
center of Edible’s lawsuit. These circumstances are not a case of “simple

negligence, misunderstanding, or inability to comply” but rather willful
conduct and bad faith. , 2023 WL 6636194, at

*5 (11th Cir. Oct. 12, 2023) (quoting , 987 F.2d

1536, 1542 (11th Cir. 1993)) (explaining that discovery violations based on
“simple negligence, misunderstanding, or inability to comply” are not grounds
for extreme sanctions). The Defendants have failed to provide any reasonable

or credible justification for hiding the principal evidence in this case; their
explanation that Mboup physically “received” the checks from Farid and not
Edible’s vendors falls apart in light of the fact that the key evidence in this
case is the checks made out from Edible’s vendors that Mboup deposited in his
personal EAI account. Had Edible not discovered these additional checks
through a separate criminal investigation brought to its attention, there is no
certainty that the Defendants would have corrected their prior discovery

responses. This conduct has prejudiced Edible. Edible has since amended its
Complaint to increase its damages amount by approximately $1.4 million,
served additional discovery requests to the Defendants, conducted an internal
investigation, and subpoenaed third parties.

Of less significance but also relevant is Mboup’s false testimony under
oath regarding his educational credentials. The deliberateness of this lie is
16

evidenced by the fact that Mboup repeated the same lie to Edible as part of his
initial job application and in other places. The Defendants do not deny the lie;
rather, they primarily argue that the falsehood is immaterial and not

sanctionable. While a falsehood in a deposition is not a justification for
sanctions under Rule 37(c), the Court takes this falsehood into account in its
broader finding of Mboup’s pattern of bad faith behavior, which is subject to
the Court’s inherent authority to manage the orderly disposition of cases.
Striking a pleading is a drastic but justified remedy in this case.

, 203 F.R.D. 561, 573 (S.D. Fla.

2001) (citing , 987 F.2d at 1542) (noting that striking a pleading is a
sanction of “last resort” that is “appropriate only where lesser sanctions are
not adequate”). Taking into consideration the multiple instances of bad faith
conduct, the Court is not persuaded that the importance of integrity in the
discovery process has been impressed upon the Defendants, nor is it persuaded
that lesser sanctions would deter them from future misconduct.

, 261 F.R.D. 694, 702 (N.D. Ga. 2009) (striking an answer in response

to fabricated evidence); , 2022 WL 2341168, at *9–

12 (S.D. Fla. May 16, 2022), , 2022

WL 4017421 (S.D. Fla. Sept. 2, 2022) (striking a defendant’s pleadings
following discovery violations and failure to comply with discovery orders). For
these reasons, the Court takes the drastic remedy of striking the Defendants’
Amended Answer. The Court declines to impose the additional sanction of
17

requiring the Defendants to pay Edible’s expenses and attorney’s fees. Thus,
the Plaintiff’s Motion for Sanctions [Doc. 188] is granted in part and denied in
part.

B. Motion to Strike

Edible asks this Court to strike ¶ 15 of Mboup and EIA’s counterclaims
as “immaterial, impertinent, or scandalous matter,” pursuant to Rule 12(f)(2).
That paragraph alleges the following:

Mr. Farid expressed to Mr. Mboup his belief that Edible’s
employment of gay individuals was hurting the company and his

desire to terminate gay employees. Indeed, upon information and

belief, gay individuals were terminated or pressured to leave
Edible. Mr. Farid also expressed a distrust of Black women, and

the only Black female executive at Edible ultimately left the

company.

(Defs. Countercls. ¶ 15.) According to Edible, “allegations that [Farid] is
homophobic or racist [ ] have nothing to do with the claims and counterclaims
in this case,” which generally concern breach of contract and fraud claims. (Pl.’s
Mot. to Strike, at 1.) Edible further contends that these allegations are “an
improper attempt to distract from Defendants’ stealing millions of dollars from
Plaintiff and to gain some sort of extrajudicial leverage over Plaintiff.” ( )

The Defendants respond that Edible’s motion is untimely and that, in
any case, ¶ 15 contains relevant and nonprejudicial allegations. Regarding
timeliness, the Defendants explain that Edible filed its Motion to Strike 115
days after being served the Defendants’ Amended Answer with their
reincorporated counterclaims and 110 days after serving its Answer to the
18

Defendants’ reincorporated counterclaims. (Defs.’ Resp. Br. in Opp’n to Pl.’s
Mot. for Sanctions, at 8.) Rule 12(f)(2) requires movants to file their motions to
strike “either before responding to the pleading or, if a response is not allowed,

within 21 days after being served with the pleading.” Fed. R. Civ. P. 12(f)(2).
Regarding ¶ 15 itself, the Defendants argue that the paragraph “provide[s]
context for the contentious, toxic work environment that was fostered by Farid”
and “explain[s] why Mboup left Edible’s employ, rather than the inference that
Mboup left to conceal anything.” (Defs.’ Resp. Br. in Opp’n to Pl.’s Mot. for
Sanctions, at 9.)

As an initial matter, the Court agrees that Edible’s motion is untimely
under Rule 12(f)(2).8 However, having considered the allegations in ¶ 15 and
pursuant to Rule 12(f)(1), the Court sua sponte strikes Farid’s homophobic and
racist allegations in that paragraph as irrelevant to the present claims, likely
to confuse the jury, and prejudicial. Although it is possible that these
allegations may help Mboup show that he left Edible for reasons independent
of the alleged fraudulent scheme, his justification for leaving is wholly

irrelevant to his counterclaims. The counterclaims concern Edible’s supposed
breach of Mboup’s employment contract (Count I) and breach of the covenant
of good faith and fair dealing (Count II) by “attempting to prevent [him] from

8 The Court notes that Edible justifies its delay by explaining that it
was not evident until discovery had closed that the ¶ 15 allegations “had
nothing to do with the claims and defenses in this case.” (Reply Br. in Supp. of
Pl.’s Mot. for Sanctions, at 1.)

19

engaging in certain business ventures and opportunities.” (Defs.’ Ans. &
Countercls. ¶¶ 22, 29.) Mboup’s alleged conversations with Farid regarding
hiring gay or Black employees do not make those claims any more or less likely

to succeed. ,

, 2012 WL 12847231, at *2 (N.D. Ga. Nov. 8, 2012) (striking paragraphs
in a counterclaim that described a party’s prior forgery and fraud because they
“d[id] not have any possible relation or logical connection to [the defendant’s]
answer or counterclaim”). Even accepting that Mboup’s justification for leaving
Edible is relevant to whether he committed the fraud alleged by Edible, the

Court finds that the likelihood that the allegations in ¶ 15 would confuse the
jury and prejudice the Defendants outweighs that relevance. Farid’s alleged
comments are homophobic and racist, and allowing such allegations would
likely result in distracting testimony and argument on the moral character of
Edible’s CEO. Therefore, the Court grants Edible’s Motion to Strike ¶ 15 of the
Defendants’ counterclaims [Doc. 191].

C. Motion for Summary Judgment

Edible moves for summary judgment on the Defendants’ counterclaims
for breach of contract (Count I), breach of the covenant of good faith and fair
dealing (Count II), and tortious interference with business relations
(Count III). As an initial matter, Edible is entitled to summary judgment on
Count III. The Court previously dismissed that count for failure to state a
claim for relief [Doc. 48], though the Defendants nonetheless incorporated it
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into their answer and counterclaims [Doc. 132] to Edible’s First Amended
Complaint.

The Court addresses the remaining two counts (Counts I–II) below.

Edible advances two primary arguments: (1) Edible could not have breached
the ventures clause because all obligations under the agreement terminated
when Mboup left Edible and because Mboup’s actions constituted “theft” rather
than protected ventures. (Br. in Supp. of Pl.’s Mot. for Summ. J., at 7–14
[Doc. 195-1].); (2) the Defendants have not offered any proof of damages, ( at
15–16). (Br. in Supp. of Pl.’s Mot. for Summ. J., at 7–14.) The Court ultimately

holds that Edible is entitled to judgment as a matter of law on both Counts I
and II.

i. Employment Agreement

The Court holds that there is a genuine dispute of material fact as to the
full scope of the employment agreement between Mboup and Edible such that
a reasonable jury could find that Edible breached the agreement.

Edible is correct that, if the offer letter encompasses the full scope of the

employment agreement, then all obligations under the offer letter terminated
when Mboup’s employment with Edible ended. The actions constituting
Edible’s alleged breach occurred after the termination of Mboup’s employment
and thus the offer letter. ( Pl.’s Mboup Dep. Excerpts A, at 268:15–269:1
(testifying that the alleged breaching actions occurred after his employment
ended).) And the offer letter contains no survival clause. While some provisions
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may survive the termination of a contract despite the absence of a survival
clause (e.g., arbitration clause), the ventures clause is not of the kind that
typically survives termination. ,

          , 2018  WL  11343742, at  *13  (N.D.  Ga. Dec.  10,  2018) 

(“Normally, obligations expire when a contract terminates. But structural
provisions—i.e., those pertaining to remedies and dispute resolution—
generally survive the contract’s termination.” (citation omitted)). The ventures
clause contains two components: It authorizes Mboup to “engage in . . . other
business ventures” “[d]uring [his] employment with” Edible, and it prohibits

Edible from having any “rights by virtue of [Mboup’s] employment to any of
the income or profits derived therefrom.” (Offer Letter, at 2–3.) While the
second component might be rendered somewhat meaningless if Mboup’s right
to noninterference turns on whether Mboup is still employed, that is the
agreement that the parties executed on paper—one that lacks any survival
clause.

However, the Court finds a genuine dispute of material fact as to

whether the offer letter reflected the full scope of the employment agreement
between Mboup and Edible—and if not, what those modified terms may have
been. According to the Defendants, the offer letter was later modified by a
common course of dealing, such that the full scope of the agreement between
Mboup and Edible allowed for Mboup to compensate himself through Edible’s
vendor checks and Active Media contracts. ( Defs.’ Resp. Br. in Opp’n to
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Pl.’s Mot. for Summ. J., at 17–18.) The evidence for this course of dealing
includes testimony of Farid’s awareness of EAI, Farid’s commitment to finding
Mboup additional streams of income when Halal Brands failed, the routine and

supposedly transparent distribution of Edible’s vendor checks between Farid
and Mboup, and discussions between Farid and Mboup regarding obtaining

compensation through the Active Media contract. ( , Defs.’ Mboup Dep.

Excerpts, at 23:10–24; EAI Dep. at 197:17–198:23; Stanley Aff. ¶ 8

Doc. 193-3.) This evidence
stands in contrast to that presented by Edible, which presumes the offer letter

reflects the only terms of the employment agreement and focuses on facts such
as Active Media’s testimony that it intended to undertake a business venture
with only Edible and not Mboup (or EAI). ( , Reply Br. in Supp. of Pl.’s
Mot. for Summ. J., at 7–8 (citing various testimony).) Therefore, viewing all
evidence in the light most favorable to the Defendants, the Court declines to
grant summary judgment based on Edible’s argument that the offer letter
represented the full scope of the employment agreement.9

9 The Court notes that Edible additionally argues that the Defendants
have moved the goal post by now presenting evidence that the full scope of the
employment agreement between the parties is not limited to the written offer
letter. ( Reply Br. in Supp. of Pl.’s Mot. for Summ. J., at 9–10.) The Court
agrees that the Defendants’ counterclaims as pleaded focus on the offer letter,
but they also reference the discussions with Farid and Farid’s supposed
endorsement of Mboup’s activities. ( Countercls. ¶¶ 11–12.) This basis is
sufficient for summary judgment purposes.

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ii. Damages

Edible seeks dismissal of the counterclaims for failure to prove damages.
The Defendants’ counterclaims initially alleged damages in the form of “lost

business” and “reputational harm.” (Countercls. ¶ 25.) In May 2023, the
Defendants stated in their initial disclosures they “have not yet computed
damages but reserve the right to amend this response.” (Initial Disclosures of
Defs., at 6 [Doc. 26].) Edible points out in briefing that the Defendants have
never amended their response or provided any documents to support the
existence of damages. (Br. in Supp. of Pl.’s Mot. for Summ. J., at 15.) In their

response brief, the Defendants appear to have abandoned any notion of
economic damages from lost business, but they maintain they have a viable
claim for reputational harm. (Defs.’ Resp. Br. in Opp’n to Pl.’s Mot. for Summ.
J., at 20.) They claim that non-economic damages such as reputational harm
“can be measured and [ ] compensated at trial by the finder of fact.” ( at 20.)
And they assert that the reputational harm stems from Edible’s statements

“naming Mboup as a thief and accusing him of workplace theft” during this

lawsuit and prior to it. ( at 22.)

The Court finds that Edible is entitled to judgment as a matter of law
on Counts I and II for lack of damages. The Court declines to presume damage
to the Defendants’ reputation where the Defendants have failed to show
evidence of—or even allege—any actions taken by Edible to cause such harm.
Edible’s act of alleging wrongdoing in a lawsuit is not a proper basis for
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damages. And Edible now claims in briefing that the reputational harm stems
from unspecified other statements made by Edible “naming Mboup as a thief.”
(See Defs.’ Resp. Br. in Opp’n to PL.’s Mot. for Summ. J., at 22.) These supposed
other statements are not only unspecified but also unrelated to the claims
pleaded by the Defendants. As Edible points out, the Defendants have pleaded
a breach of contract claim, not a defamation claim. (Reply Br. in Supp. of PL.’s
Mot. for Summ. J., at 13-14.) For these reasons, the Court grants Edible’s
Motion for Summary Judgment as to Counts I and II.
IV. Conclusion
For the reasons set forth above, the Court GRANTS in part and DENIES
in part Plaintiff Edible Arrangements, LLC’s Motion for Sanctions [Doc. 188].
The Court hereby strikes the Defendants’ Amended Answer [Doc. 132] as an
appropriate sanction in this case and denies all other relief requested in
Edible’s Motion for Sanctions. The Court further GRANTS Plaintiff Edible’s
Motion to Strike [Docs. 191]. Specifically, the Court strikes § 15 of the
Defendants’ counterclaims, as initially alleged in Doc.61 and _ later
reincorporated in Doc. 136. Lastly, the Court GRANTS Edible’s Motion for
Summary Judgment [Doc. 195] as to the Defendants’ counterclaims.
SO ORDERED, this 13th day of March, 2026.

                                   A ttrrncia         ge 
                                    THOMAS W. THRASH, JR.     □□ 
                                    United States District Judge 
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