MANER v. Reproductive Research Technologies, LP et al
MEMORANDUM OPINION denied 24 MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
TECHNOLOGIES, LP, JACK N.
MCCRARY, DR. ROBERT E.
GARFIELD, and DR. RANIER FINK,
August 15, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-1567
Pending before the court1 is Defendants Reproductive Research
Technologies, LP (“RRT”), Jack N. McCrary (“McCrary”) and Ranier
Fink, Ph.D.’s (“Dr. Fink”) (collectively, “Defendants”) Motion for
Summary Judgment (Doc. 24).
The court has considered the motion,
the Plaintiff’s response, all other relevant filings, and the
For the reasons set forth below, the court
RECOMMENDS that Defendants’ motion be DENIED.
On June 15, 2015, Plaintiff filed this action bringing claims
for copyright infringement, breach of contract, quantum meruit,
conspiracy, and fraud.2
Plaintiff alleges that he assisted in
drafting a grant proposal for RRT, was promised employment upon
receipt of such grant, and Defendants never followed through with
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 19, Ord. Dated
Nov. 6, 2015.
See Doc. 6, Pl.’s Am. Compl.
such promise when the grant was awarded.3
On November 4, 2015, the
court dismissed Plaintiff’s breach of contract, quantum meruit, and
fraud claims against Fink, and his conspiracy claim against all
Defendants.4 Defendants filed their motion for summary judgment on
February 15, 2017, contending that Plaintiff judicially admitted he
was never employed by RRT in a related lawsuit, and, therefore,
summary judgment should be granted on his claims.5
Summary judgment is warranted when the evidence reveals that
no genuine dispute exists on any material fact and the moving party
is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Stauffer v.
Gearhart, 741 F.3d 574, 581 (5th Cir. 2014).
A material fact is a
fact that is identified by applicable substantive law as critical
to the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v. Signal
Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001). To be genuine,
the dispute regarding a material fact must be supported by evidence
such that a reasonable jury could resolve the issue in favor of
See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d
396, 400 (5th Cir. 2013)(quoting Anderson, 477 U.S. at 248).
The movant must inform the court of the basis for the summary
See Doc. 15, Mem. Opin. & Ord. Dated Nov. 4, 2015.
See Doc. 24, Defs.’ Mot. for Summ. J.
judgment motion and must point to relevant excerpts from pleadings,
depositions, answers to interrogatories, admissions, or affidavits
that demonstrate the absence of genuine factual issues.
Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131
If the moving party carries its burden, the nonmovant may
not rest on the allegations or denials in his pleading but must
respond with evidence showing a genuine factual dispute. Stauffer,
741 F.3d at 581 (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th
The premise of Defendants’ motion for summary judgment is that
Plaintiff was not employed by RRT.
Defendants contend that
Plaintiff judicially admitted he worked for Dignity Health f/k/a
Catholic Healthcare West (“Dignity Health”) in another lawsuit, and
therefore, he could not have been working for RRT at the same time,
and that any copyrightable material he would have created belonged
to Dignity Health.
Defendants point to the parts of Plaintiff’s
other complaint where he states he worked for Dignity Health, was
supervised by Robert Garfield, Ph.D., (“Dr. Garfield”) and received
a salary from Dignity Health.6
Defendants contend that these are
judicial admissions that demonstrate that Plaintiff was not working
Plaintiff agrees with Defendants that he was an employee of
However, Plaintiff points out that it is possible
See Doc. 24-1, Ex. 1 to Defs.’ Mot. for Summ. J., p. 4.
to work for more than one employer at a time, and he has produced
demonstrating that he was also employed by RRT.7
Plaintiff points out that the kind of grant RRT received, a Small
Business Innovation Research grant, could only be received by forprofit, smaller businesses, not large, non-profit entities such as
Therefore, Plaintiff has raised a genuine issue
of material fact as to whether he was employed by RRT.
Based on the foregoing, the court RECOMMENDS that Defendants’
Motion for Summary Judgment be DENIED.
SIGNED in Houston, Texas, this 15th day of August, 2017.
U.S. MAGISTRATE JUDGE
See Doc. 25-12, Ex. 12 to Pl.’s Resp., 1st Decl. of Pl. pp. 1-4; Doc.
25-12, Ex. 14 to Pl.’s Resp., Pl.’s Hours Worked Table p. 1; Doc. 25-13, Ex. 15
to Pl.’s Resp., RRT Memorandum from McCrary to Pl. pp. 1-3 (stating “[w]e are
very pleased to have you working with us in Houston”); Doc. 25-14, Ex. 16 to
Pl.’s Resp., Email from McCrary to Dr. Garfield Dated Dec. 1, 2010 p. 1; Doc. 2516, Ex. 21 to Pl.’s Resp., 2d Decl. of Pl. pp. 1-10; Doc. 25-17, Ex. 23 to Pl.’s
Resp., Def. RRT’s Website (listing Maner as part of RRT’s Medical Advisory
Technology Group); Doc. 25-18, Ex. 24 to Pl.’s Resp., Checks from RRT to Pl. p.
See Doc. 25-1, Ex. 1 to Pl.’s Resp., Guide to SBIR/STTR Program
Eligibility pp. 3-4, 8 (showing SBIR grant can only be received by a for-profit
company with less than 500 employees); Doc. 25-2, Ex. 2 to Pl.’s Resp., Dignity
Health Filing from Ariz. Sec’y of State pp. 1-2 (Dignity Health is registered as
a non-profit under Arizona law); Doc. 25-5, Ex. 5 to Pl.’s Resp., IRS Exempt
Orgs. p. 1 (Dignity Health is a non-profit with tax-exempt status); Doc. 25-6,
Ex. 6 to Pl.’s Resp., Dignity Health Report p. 1 (Dignity Health “is a 17-state
network of 10,000 physicians and 56,000 employees”); Doc. 25-15, Ex. 19 to Pl.’s
Resp., Letter from the National Institutes of Health to RRT p. 1.
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