Thermal Surgical, LLC v. Brown
Filing
169
OPINION AND ORDER denying without prejudice 159 Motion for Judgment as to Jeff Brown; denying 160 Motion to Dismiss Nuvasive's Claims Against Defendant Brown; denying 163 Motion to Stay; denying 164 Motion to Compel Nuvasive to Produce a Detailed Calculation of Damages. Signed by Judge William K. Sessions III on 2/16/2022. (law)
Case 2:15-cv-00220-wks Document 169 Filed 02/16/22 Page 1 of 10
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
THERMAL SURGICAL, LLC
Plaintiff/Counterclaim
Defendant,
v.
JEFF BROWN,
Defendant/Counterclaim
and Third-Party
Plaintiff,
v.
JASON LESAGE, GREGORY SWEET,
NUVASIVE, INC.,
Third-Party Defendants,
and
NUVASIVE, INC.,
Plaintiff,
v.
JEFF BROWN,
Defendant.
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Case Nos. 2:15-cv-220
2:19-cv-75
OPINION AND ORDER
Plaintiffs Thermal Surgical, LLC (“Thermal Surgical”) and
NuVasive, Inc. (“NuVasive”) bring these consolidated actions
against Jeff Brown, alleging Mr. Brown violated certain noncompetition and non-solicitation agreements, breached his duty
Case 2:15-cv-00220-wks Document 169 Filed 02/16/22 Page 2 of 10
of loyalty, and misappropriated trade secrets.
Pending before
the Court are Mr. Brown’s motion to dismiss NuVasive’s claims
(ECF No. 160); his motion to stay the motion to dismiss (ECF No.
163); and his motion to compel NuVasive to produce a detailed
calculation of its alleged damages (ECF No. 164).
NuVasive
objects to Mr. Brown’s motions, arguing that the motion to
dismiss goes beyond the pleadings, and the motion to compel is
premature in the absence of a discovery request.
Also before
the Court is Thermal Surgical’s motion for entry of judgment
(ECF No. 159).
For the reasons set forth below, all pending
motions are denied without prejudice.
I.
Mr. Brown’s Motion to Dismiss
The Court will first address Mr. Brown’s motion to dismiss
NuVasive’s claims against him.
NuVasive’s Complaint seeks over
$1.5 million in damages as a result of alleged contractual
violations.
Mr. Brown contends that the facts do not support
that amount of damages.
Specifically, he argues that his non-
compete agreement is unenforceable; that he did not compete with
NuVasive during the non-compete period; that NuVasive did not
suffer any interruption in sales as a result of his actions;
that NuVasive’s alleged loss amount is unsupported; and that
NuVasive has already received more than it is due.
The facts cited by Mr. Brown go beyond NuVasive’s
pleadings, and thus cannot be considered on a motion to dismiss.
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See Fed. R. Civ. P. 12; DiFolco v. MSNBC Cable L.L.C., 622 F.3d
104, 111 (2d Cir. 2010) (“In considering a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6), a district
court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.”).
“Where a
district court considers material outside of the pleadings that
is not attached to the complaint, incorporated by reference, or
integral to the complaint, the district court, to decide the
issue on the merits, must convert the motion into one for
summary judgment.”
United States ex rel. Foreman v. AECOM, 19
F.4th 85, 106 (2d Cir. 2021).
The rule forbidding consideration
of matters beyond the pleadings “deters trial courts from
engaging in factfinding when ruling on a motion to dismiss and
ensures that when a trial judge considers evidence [outside] the
complaint, a plaintiff will have an opportunity to contest
defendant’s relied-upon evidence by submitting material that
controverts it.”
Glob. Network Commc’ns, Inc. v. City of New
York, 458 F.3d 150, 155 (2d Cir. 2006).
Conversion to a summary judgment motion is only required if
the Court plans to consider evidence outside the complaint.
Indeed, the decision to convert a motion to dismiss to a motion
for summary judgment is within the Court’s discretion.
See
Liberty Mut. Ins. Co. v. N. Picco & Sons Contracting Co., No. 05
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CIV. 217, 2008 WL 190310, at *3 (S.D.N.Y. Jan. 16, 2008) (“It is
within the discretion of this Court to convert a motion filed
under Rule 12(b)(6) into a motion seeking summary judgment when
matters outside the pleadings have been presented and accepted
by the Court, and where all parties have been given a reasonable
opportunity to present materials pertinent to the motion’s
disposition.”) (internal quotation marks omitted); Scope, Inc.
v. Pataki, 386 F. Supp. 2d 184, 190 (W.D.N.Y. 2005) (“The Court
determines in its discretion, however, not to convert these
motions on the pleadings to ones for summary judgment at this
time.”).
Rather than converting the motion, the Court may
instead deny the motion without prejudice such that both
parties, including the movant, can begin anew with properlysupported statements of facts, record citations, and legal
arguments.
See, e.g., Blair v. L.I. Child & Fam. Dev. Servs.,
Inc., No. 16CV1591JFBSIL, 2017 WL 722112, at *8 (E.D.N.Y. Jan.
31, 2017), report and recommendation adopted, No.
16CV1591JFBSIL, 2017 WL 728231 (E.D.N.Y. Feb. 21, 2017).
In this case, Mr. Brown has offered facts and evidence that
not only go beyond the pleadings, but are also unsupported by
citations to either sworn affidavits (including his own) or
other admissible evidence as required by Rule 56, which governs
summary judgment motions.
See Fed. R. Civ. P. 56(c)(1)(A)
(requiring citation “to particular parts of materials in the
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record, including depositions, documents . . . affidavits or
declarations”); see also Fed. R. Civ. P. 56(c)(2) (“A party may
object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in
evidence.”).
Moreover, this Court’s Local Rules require a
separate statement of undisputed facts supported by the types of
evidence discussed in Federal Rule of Civil Procedure 56(c).
See Local Rules 56(a), 56(c).
Accordingly, conversion to a
motion for summary judgment would mean moving forward without
the evidentiary support required by the applicable rules.
The Court finds that rather than conversion, denial without
prejudice is the more appropriate course.
See, e.g., Cassotto
v. Potter, No. CIVA3-07-CV-266, 2007 WL 2121239, at *1 (D. Conn.
July 20, 2007) (“The court will not at this time convert the
defendant’s motion into one for summary judgment, and therefore
denies the motion to dismiss without prejudice to raise these
arguments on summary judgment.”).
If the Court merely converts
Mr. Brown’s motion without requiring compliance with the federal
and local rules, NuVasive will be deprived of the opportunity to
offer objections as contemplated by Federal Rule of Civil
Procedure 56(c).
The Court will be similarly unable to discern
whether the summary judgment motion is adequately supported by
admissible evidence.
The motion to dismiss is therefore denied
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without prejudice, and Mr. Brown may re-file a dispositive
motion that complies with the applicable procedural rules.
II.
Motion to Stay the Motion to Dismiss
Because the motion to dismiss is denied without prejudice
to re-filing, the motion to stay the motion to dismiss is denied
as moot.
III. Motion to Compel
Mr. Brown has also moved to compel NuVasive to produce a
detailed calculation of its alleged damages.
A motion to compel
is governed by Federal Rule of Civil Procedure 37, which
identifies specific types of motions: (1) a motion to compel
after a party fails to make a requested disclosure under Rule
26(a); (2) a motion to compel a discovery response if a party
fails to answer an interrogatory or produce a requested
document; and (3) a motion related to a dispute during a
deposition.
Fed. R. Civ. P. 37(a)(3).
Each type of motion is
premised upon a failure to adequately respond to an established
form of discovery.
Here, Mr. Brown has not served NuVasive with a request for
a detailed damages calculation.
compel an answer.
Consequently, the Court cannot
NuVasive represents that if Mr. Brown serves
it with proper discovery, it will respond in accordance with the
federal and local rules.
Because NuVasive has not yet been
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asked for the detailed calculation sought by Mr. Brown, the
motion to compel a response is denied.
IV.
Motion for Entry of Judgment
The final motion before the Court is Thermal Surgical’s
motion for entry of judgment.
The Court previously granted
Thermal Surgical’s motion for summary judgment on its claims
against Mr. Brown, and granted a separate motion for summary
judgment dismissing Mr. Brown’s counterclaim against Thermal
Surgical.
Thermal Surgical now moves the Court to enter
judgment in its favor in the amount of $302,379.53, plus
$193,528.28 in prejudgment and postjudgment interest.
Thermal Surgical submits its motion pursuant to subsection
(d) of Federal Rule of Civil Procedure 58, which allows a party
to request entry of final judgment in a “separate document.”
Fed. R. Civ. P. 58(d); see also Fed. R. Civ. P. 58(a) (requiring
that every judgment and amended judgment be set out in a
“separate document”).
Thermal Surgical focuses its argument on
its alleged entitlement to prejudgment and postjudgment
interest.
Thermal Surgical does not address the fact that other
claims in the case are still pending.
In general, “the entry of a final judgment is . . .
appropriate only after all claims have been adjudicated.”
Novick v. AXA Network, LLC, 642 F.3d 304, 310 (2d Cir. 2011)
(internal quotation marks omitted).
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“Rule 54(b) authorizes
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entry of a partial final judgment ‘as to one or more, but fewer
than all, claims or parties’ only when three requirements have
been satisfied: [i] there are multiple claims or parties; [ii]
at least one claim or the rights and liabilities of at least one
party has been finally determined; and [iii] the court
[expressly determines] that there is no just reason for delay.’”
Acumen Re Mgmt. Corp. v. Gen. Sec. Nat. Ins. Co., 769 F.3d 135,
140 (2d Cir. 2014) (quoting Fed. R. Civ. P. 54(b)).
“Respect for the ‘historic federal policy against piecemeal
appeals’ requires that a Rule 54(b) certification not be granted
routinely.”
Citizens Accord, Inc. v. Town of Rochester, 235
F.3d 126, 128-29 (2d Cir. 2000) (per curiam) (quoting CurtissWright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980)).
In fact,
the Second Circuit has cautioned that “the court’s power under
Rule 54(b) . . . should be exercised sparingly.”
Advanced
Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 16 (2d
Cir. 1997) (internal quotation marks omitted).
Thus, “certification under Rule 54(b) should be granted
only if there are interests of sound judicial administration and
efficiency to be served, or, in the infrequent harsh case, where
there exists some danger of hardship or injustice through delay
which would be alleviated by immediate appeal.”
FAT Brands Inc.
v. PPMT Cap. Advisors, Ltd., No. 19 Civ. 10497 (JMF), 2021 WL
1392849, at *1 (S.D.N.Y. Apr. 13, 2021) (quoting Harriscom
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Svenska AB v. Harris Corp., 947 F.2d 627, 629 (2d Cir. 1991)).
“In applying these principles,” the Second Circuit has
“repeatedly noted that the district court generally should not
grant a Rule 54(b) certification if the same or closely related
issues remain to be litigated.”
Novick, 642 F.3d at 311
(internal quotation marks omitted).
Among other things, “‘[i]t
does not normally advance the interests of sound judicial
administration or efficiency to have piecemeal appeals that
require two (or more) three-judge panels to familiarize
themselves with a given case’ in successive appeals from
successive decisions on interrelated issues.”
Id. (quoting
Harriscom, 947 F.2d at 631).
In the pending case, not all claims have been resolved.
NuVasive’s claims against Mr. Brown remain pending, and
discovery has not yet concluded on those claims.
Consequently,
the concerns set forth by the Second Circuit with regard to
efficient judicial administration and the possibility of
piecemeal appeals apply here.
Thermal Surgical’s motion does
not address those concerns, and does not ask the Court to make
any findings under Rule 54(b).
While the Court offers no
opinion at this time about the potential merits of a motion
under Rule 54(b), it declines to enter a separate judgment
without briefing on the requirements of that rule.
for judgment is therefore denied without prejudice.
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The motion
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V.
Conclusion
For the reasons set forth above, all pending motions (ECF
Nos. 159, 160, 163, and 164) are denied.
DATED at Burlington, in the District of Vermont, this 16th
day of February, 2022.
/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge
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