United States District Court, D. Massachusetts
DENNIS R. DEVONA, Plaintiff,
STEVEN M. ZEITELS Defendant. STEVEN M. ZEITELS, M.D. and ENDOCRAFT LLC, Counterclaim Plaintiffs,
DENNIS R. DEVONA Counterclaim Defendant.
MEMORANDUM & ORDER
Talwani United States District Judge
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.
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.
1999, Zeitels formed Endocraft. Pl.'s Stmt. ¶ 2;
Defs.' Stmt. ¶ 2. In June 1999, Endocraft and DeVona
executed an Independent Sales Agreement
(“Agreement”). 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].
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.
• 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.
• 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.
Legal Standard and Choice of Law
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.