Joint Technology Inc v. Weaver et al
Filing
21
ORDER granting 8 Weaver Medical's motion to dismiss and dismissing all claims against Weaver Medical. Further, the Court denies plaintiff's request to sever claims against Weaver Medical as moot (as more fully set out in order). signed by Honorable Vicki Miles-LaGrange on 10/4/2011. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOINT TECHNOLOGY, INC. d/b/a
REVERT SYSTEMS, an Oklahoma
Corporation,
Plaintiff,
v.
GARY KENT WEAVER, JR.,
individually, and WEAVER MEDICAL
GROUP, INC., a Tennessee Corporation,
d/b/a WEAVER MOBILITY,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CIV-11-846-M
ORDER
Before the Court is defendant Weaver Medical Group, Inc. (“Weaver Medical”), d/b/a
Weaver Mobility’s Motion to Dismiss, filed August 17, 2011. On September 8, 2011, plaintiff filed
its response. Based upon the parties’ submissions, the Court makes its determination.
I.
Introduction
Plaintiff is a distributor of durable medical equipment and related products. By written
agreement signed on March 18, 2008 (“agreement”), plaintiff employed Grant Kent Weaver, Jr.
(“Weaver”) as Regional Sales Agent for the State of Tennessee.1 Plaintiff initially paid Weaver an
annual sum of $50,000. Subsequently, plaintiff converted Weaver’s compensation to an 18% sales
commission on most products. Weaver agreed to pay for his own expenses of operation. Plaintiff
agreed to pay Weaver an additional 4% commission to compensate for overhead expenses.
According to plaintiff, the terms of the agreement required Weaver to devote his full time
and exclusive attention to plaintiff’s business. Weaver agreed not to involve himself in any
1
Weaver’s title was later revised to Regional Vice President to the State of Tennessee.
competing business while working as plaintiff’s agent. The agreement further required Weaver not
to solicit any of plaintiff’s current customers or employees for a twelve month period following his
termination.
In 2009, Weaver formed the sole proprietorship of Weaver Family Orthotics. According to
plaintiff, Weaver initiated a process of diverting orders to Weaver Family Orthotics. In 2010,
Weaver incorporated his company in Tennessee as defendant Weaver Medical and planned to divert
orders of durable medical equipment to it.
In 2010, Weaver also formed Weaver Mobility,2 a Tennessee corporation.
Weaver
substituted physician prescriptions for medical products from Revert3 to Weaver Mobility
prescriptions. In May 20, 2011, Weaver resigned from his position with plaintiff.
Plaintiff filed its Complaint on July 26, 2011. Weaver Medical moves to dismiss on the
grounds that plaintiff failed to state a claim for which relief can be granted.
II.
Standard
Regarding the standard for determining whether to dismiss a claim pursuant to Rule 12(b)(6),
the United States Supreme Court has held:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are merely consistent
with a defendant’s liability, it stops short of the line between
2
Weaver Medical was doing business as Weaver Mobility.
3
Plaintiff was doing business as Revert Systems.
2
possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotations and citations omitted). Further,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.”
Id. (internal quotations and citations omitted). Additionally, “[a] pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. at 1949
(internal quotations and citations omitted).
III.
Discussion
A.
Party to the Agreement
Weaver Medical moves to dismiss plaintiff’s claims for breach of the exclusivity agreement
and breach of the non-solicitation covenant on the grounds that Weaver Medical was not a
contracting party to the agreement.
Unless an agency relationship exists, a non-party to a contract is not liable for the terms under
the contract. See Bell v. Tollefsen, 782 P.2d 934, 937 (Okla. 1989); see also Okfuskee Cnty. Rural
Water Dist. No. 3 v. City of Okemah, 257 P.3d 1011, 1019 (Okla. Civ. App. 2011). Here, plaintiff
has neither alleged that Weaver Medical was a direct party to the agreement, nor that Weaver
Medical is liable based upon an agency relationship. Thus, the Court finds that plaintiff has not pled
sufficient facts to establish that Weaver Medical is liable for breach of the exclusivity agreement or
breach of the non-solicitation covenant.
Therefore, the Court dismisses plaintiff’s claims against Weaver Medical for breach of the
exclusivity agreement and breach of the non-solicitation covenant.
3
B.
Proprietary Information
In order to have a claim to protect proprietary information, such information “must be the
particular secrets of the employer as distinguished from general secrets of the trade in which he is
engaged.” Cent. Plastics Co. v. Goodson, 537 P.2d 330, 333 (Okla. 1975). Information that is easily
ascertainable or available generally to the public or trade does not constitute proprietary information.
See id. at 334-35.
Having carefully reviewed plaintiff’s complaint, the Court finds that plaintiff has not alleged
sufficient facts to establish that Weaver Medical used information that contained particular secrets
of plaintiff and not general secrets of the trade. Plaintiff alleged that it provided Weaver a data base
of certain customers, products, price renewal dates, pricing policies, methods of delivery services,
marketing strategies, and product development strategies. However, plaintiff failed to allege that
said information was not easily ascertainable or available generally to the public or plaintiff’s trade.
Absent allegations that the information plaintiff provided contained plaintiff’s particular secrets,
plaintiff’s claim for use of proprietary information tenders naked assertions devoid of further factual
enhancement. Iqbal, 129 S. Ct. at 1949.
Furthermore, as set forth in Part III.A, Weaver Medical was not a party to the agreement. To
that end, Weaver Medical cannot be found liable for any term of the agreement that required Weaver
to hold the provided information in confidence.
Therefore, the Court dismisses plaintiff’s claim against Weaver Medical for use and
disclosure of proprietary information.
C.
Conversion
Weaver Medical contends that plaintiff has failed to state a valid claim of conversion.
4
“Conversion is an act of dominion wrongfully exerted over another’s tangible personal property in
denial of or inconsistent with the owner’s rights in the property.” Chaparral Energy, L.L.C. v.
Pioneer Exploration, Ltd., 214 P.3d 1161, 1164 (Okla. Civ. App. 2010). Thus:
[I]n order to constitute conversion, non-consent to the possession and
disposition of the property is indispensable. If the owner expressly or
impliedly assented to or ratified the taking, use, or disposition of his
property, he could not recover for conversion of the property.
First Bank of Okarche v. Lepak, 961 P.2d 194, 198 (Okla. 1998). Here, the gravamen of plaintiff’s
conversion claim is that plaintiff paid Weaver 4% commission to compensate Weaver for overhead
expenses. Plaintiff consented to pay Weaver the 4% commission because said payment was based
upon an agreement between plaintiff and Weaver. Thus, the Court finds that plaintiff assented to
pay Weaver the 4% commission and that neither Weaver nor Weaver Medical wrongfully exerted
dominion over the commission. As such, plaintiff cannot recover for conversion of the 4%
commission paid to Weaver.
Therefore, the Court dismisses plaintiff’s claim against Weaver Medical for conversion.
D.
Request to Sever
In plaintiff’s response, it requested that the Court exercise its discretion to sever claims
against Weaver Medical from this matter pursuant to Federal Rule of Civil Procedure 21. In light
of the Court’s dismissal of plaintiff’s claims against Weaver Medical, the Court denies plaintiff’s
request to sever as it is moot.
IV.
Conclusion
Accordingly, the Court GRANTS Weaver Medical’s Motion to Dismiss [docket no. 8] and
DISMISSES all claims against Weaver Medical. Further, the Court DENIES plaintiff’s request to
5
sever claims against Weaver Medical as MOOT.
IT IS SO ORDERED this 4th day of October, 2011.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?