Medecor Pharma, L.L.C. et al v. Fleming and Company, Pharmaceuticals

Filing 104

RULING denying 97 Motion for Reconsideration filed by Defendant Fleming and Company, Pharmaceuticals'. The Clerk of Court shall terminate 96 Motion, as it is a duplicate of document 97. Signed by Judge James J. Brady on 4/1/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MEDECOR PHARMA LLC, and
BRADLEY SANDERS
CIVIL ACTION
VERSUS
NO. 12-291-JJB-RLB
FLEMING PHARMACEUTICALS,
INC.
RULING ON MOTION FOR RECONSIDERATION
This matter is before the Court on the Defendant Fleming and Company,
Pharmaceuticals’ (“Fleming”) Motion (doc. 97) for Reconsideration. The defendant asks this
Court to reconsider “the portion of its Ruling on Motions for Summary Judgment which denied
Fleming’s Motion for Summary Judgment against Plaintiffs Medecor Pharma LLC . . . and
Bradley Sanders . . . on the issue of Plaintiffs’ claim that Fleming breached the Confidentiality
Information and Non-Disclosure Agreement.” (Doc. 97-1, p. 1). The plaintiffs oppose the
motion. (Doc. 100).
Rule 54(b) of the Federal Rules of Civil Procedure provides that:
[A]ny order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.
Fed. Rule Civ. P. 54(b). A Court retains jurisdiction over all claims in a suit and may alter its
earlier decisions until a final judgment has been issued. Livingston Downs Racing Ass’n v.
Jefferson Downs Corp., 259 F. Supp. 2d 471, 475 (M.D. La. 2002). “District courts have
considerable discretion in deciding whether to reconsider an interlocutory order.” Keys v. Dean
Morris, LLP, 2013 WL 2387768, at *1 (M.D. La. May 30, 2013). “Although courts are
concerned with principles of finality and judicial economy, ‘the ultimate responsibility of the
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federal courts, at all levels, is to reach the correct judgment under law.’” Id. (quoting Georgia
Pacific, LLC v. Heavy Machines, Inc., 2010 WL 2026670, at *2 (M.D. La. May 20, 2010)).
Nevertheless, “rulings should only be reconsidered where the moving party has presented
substantial reasons for reconsideration.” Louisiana v. Sprint Communications Co., 899 F. Supp.
282, 284 (M.D. La. 1995).
In the previous ruling, this Court stated the following:
Accordingly, the Non-Disclosure Agreement provides that written information
can be made confidential through being “marked on its face as confidential by the
disclosing party.” As mentioned above, Fleming disclosed the term sheet to
Valeant in the course of their negotiations. Nevertheless, Fleming avers that it did
not divulge to Valeant any information that was disclosed pursuant to the NonDisclosure Agreement. However, the plaintiffs point out that the term sheet is
identified as “CONFIDENTIAL” on its face, and thus, is subject to the NonDisclosure Agreement’s provisions. (See doc. 62-7, p. 2; doc. 78-1, p. 3).
Nonetheless, there is ambiguity and uncertainty regarding who marked the form
as confidential. The Non-Disclosure Agreement requires the “disclosing party” to
mark the item as confidential, at which point the “receiving party” is bound to
keep it confidential. However, the agreement does not bind the disclosing party to
keep the item confidential; only the receiving party has this obligation. Based on
the evidence, there is no indication who marked the term sheet as confidential,
and which party would be the “disclosing party” and which would be the
“receiving party.” This distinction is relevant regarding whether Fleming’s
disclosure violated the provisions of the Non-Disclosure Agreement. Accordingly,
there are sufficient issues of material fact such that summary judgment would be
inappropriate at the present time.
(Doc. 88, p. 10). Presently, in its motion for reconsideration, Fleming supplements the record
with the declaration of George Love. (Doc. 97-3). Mr. Love was “General Counsel and VicePresident of Regulatory Affairs of Fleming and Company, Pharmaceuticals.” (Doc. 97-3, p. 2).
In the declaration, Mr. Love states that he drafted the entire “Summary of Principal Terms”
document and included the “CONFIDENTIAL” designation.
Nevertheless, upon further consideration, the Court still cannot find that there is no
genuine issue of material fact as to the plaintiffs’ breach of contract claim. In light of the

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arguments made by both parties and evidence presented, the Court cannot designate with
certainty the “disclosing party” for all of the information contained within the term sheet, as
contemplated by the Non-Disclosure Agreement. While the defendant apparently affixed the
“CONFIDENTIAL” heading to the term sheet, both parties signed the sheet, which included a
separate clause specifically making the term sheet confidential. Furthermore, it appears that some
information contained in the term sheet had previously been designated as “confidential”
pursuant to the Non-Disclosure Agreement, or at least was contained in documents that had
previously been marked as confidential. (See doc. 97-1, p. 3 n.1). Thus, Fleming possibly
breached its obligation by disclosing the term sheet, and thereby, disclosing the previouslyidentified “confidential” information. (See doc. 23-6, p. 2, ¶ 3; doc. 97-1, p. 3 n.1). Additionally,
the Court is uncertain whether the term sheet even falls within the documents or information that
can be made “confidential” pursuant to Paragraph 1 of the Non-Disclosure Agreement, as the
term sheet seemingly differs from the listed examples of information that can be made
confidential pursuant to the Non-Disclosure Agreement. (Doc. 23-6, p. 2, ¶ 1). Based on all of
these considerations, the Court is still unable to find that there is no genuine issue of material fact
as to the plaintiffs’ claim that Fleming breached the Non-Disclosure Agreement by disclosing the
term sheet to Valeant.
Accordingly, the Court DENIES the Defendant Fleming and Company, Pharmaceuticals’
Motion (doc. 97) for Reconsideration. Additionally, the Clerk of Court’s office shall terminate
Document 96, as it is duplicative of Document 97.
Signed in Baton Rouge, Louisiana, on April 1, 2014.

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JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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