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Devona v. Zeitels

United States District Court, D. Massachusetts

September 14, 2016

DENNIS R. DEVONA, Plaintiff,
v.
STEVEN M. ZEITELS Defendant. STEVEN M. ZEITELS, M.D. and ENDOCRAFT LLC, Counterclaim Plaintiffs,
v.
DENNIS R. DEVONA Counterclaim Defendant.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         I. Introduction

         Before the court is Dennis R. DeVona's motion seeking summary judgment of Endocraft, LLC's (“Endocraft”) Counterclaim for intentional interference with business and/or contractual relations (Counterclaim II), partial summary judgment of Endocraft's claims for breach of contract (Counterclaim III) and breach of the implied covenant of good faith and fair dealing (Counterclaim IV), and partial summary judgment of Endocraft and Steven M. Zeitels' claims for unjust enrichment (Counterclaim V) and conversion (Counterclaim VI). See Answer & Countercls. [#17]; Pl.'s Mot. Partial Summ. J. [#155]. Summary judgment as to the claims for intentional interference with business and/or contractual relations is ALLOWED; partial summary judgment as to the other counts is ALLOWED IN PART and DENIED IN PART.

         II. Factual Background

         In 1997, DeVona and Zeitels began discussing seriously a project involving a new laryngoscope. Pl.'s Statement Undisputed Material Facts ¶ 1 [#156] (“Pl.'s Stmt.”); Defs.' Statement Undisputed Material Facts ¶ 1 [#160] (“Defs.' Stmt.”). What happened in this beginning time period-including whether DeVona and Zeitels agreed to form a partnership-is disputed and is not the subject of this motion.

         In 1999, Zeitels formed Endocraft. Pl.'s Stmt. ¶ 2; Defs.' Stmt. ¶ 2. In June 1999, Endocraft and DeVona executed an Independent Sales Agreement (“Agreement”).[1] Id. ¶ 3. Under the Agreement, Endocraft appointed DeVona “Sales Representative” and “Manufacturing Coordinator” of Endocraft. Gainor Decl. Ex. C ¶¶ 1, 6 [#157-3] (“Agreement”). The Agreement provided that DeVona would be paid forty percent of net profits of the business, minus certain deductions for research and development costs. Agreement ¶ 6(a) & (c). From 1999-2011, DeVona was paid an amount greater than the forty percent of net profits. Defs.' Stmt. ¶¶ 53-55. DeVona concedes that “[f]actual disputes remain concerning payments to DeVona under the Agreement after 2003.” Mem. Law Supp. Pl.'s Mot. Partial Summ. J. 8 [#158].

         This arrangement appeared to have gone swimmingly until 2010 or 2011, when DeVona and Zeitels' relationship broke down. At that point, Zeitels asserted that:

• DeVona failed to keep Endocraft in compliance with Food and Drug Administration (“FDA”) standards. Defs.' Stmt. ¶¶ 61, 64-65.[2]
• DeVona had set up Endocraft's business telephone number and email address within his own family's personal account, and DeVona did not turn over the telephone number and email address to Zeitels or Endocraft after he was terminated from Endocraft. Defs.' Stmt. ¶ 73.
• DeVona sent packages for personal reasons from Endocraft's Federal Express account. Pl.'s Stmt. ¶ 27.
• DeVona stored personal furniture in a space paid for by Endocraft. Pl.'s Stmt. ¶ 33.
• Sometime between 1999 and 2011, Zeitels loaned DeVona a laryngoscope holder that was of sentimental value to Zeitels. Defs.' Stmt. ¶ 58. DeVona had not returned that laryngoscope holder as of the time the instant motion for partial summary judgment was filed.

         III. Discussion

         a. Legal Standard and Choice of Law

         A party may move for summary judgment on a claim or part of a claim, and is entitled to summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of fact exists if an issue can be resolved in favor of either party. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004). A fact is material if it has the potential to affect the outcome of the case. Id In reviewing a motion for summary judgment, the court takes all properly supported evidence in the light most favorable to the nonmovant and draws all reasonable inferences in his favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). If the moving party shows that “there is an absence of evidence to support the nonmoving party's position . . . the burden shifts to the nonmoving party to establish the existence of an issue of fact that could affect the outcome of the litigation and from which a reasonable jury could find for the [nonmovant].” Rogers v. ...


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