United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
NuVasive, Inc. (“NuVasive”) has filed this
lawsuit against Defendants Timothy Day (“Day”)
and Adam Richard (“Richard”) alleging tortious
interference (Day, Count I), breach of contract (Day, Count
II; Richard, Count I) and seeking injunctive relief (Day,
Count III; Richard, Count II). Day and Richard have each
moved to dismiss the complaints filed against them for
failure to state a claim. Day, D. 40; Richard, D. 27. For the
reasons discussed below, the Court DENIES IN PART Day's
motion to dismiss, Day, D. 40, and DENIES IN PART
Richard's motion to dismiss, Richard, D. 27, allowing
both motions only as to the freestanding claims for
injunctive relief, Count III in the Day complaint and Count
II in the Richard complaint.
NuVasive and Rival Employment
NuVasive is a manufacturer of products used to treat spinal
disease. Day, D. 1 at ¶ 2. NuVasive is incorporated in
Delaware and maintains its principal place of business in San
Diego, California. Id.
worked as a sales representative for an exclusive distributor
of NuVasive's products and then as a sales director for
NuVasive from August 2011 to April 2019. Id. at
¶ 4. Day's territory as a sales representative was
six Boston-area hospitals and then expanded to Massachusetts
and Rhode Island when he became a sales director.
also began as a sales associate for an exclusive distributor
of NuVasive's products, with a territory of fifteen
Massachusetts hospitals. Richard, D. 1 at ¶ 13. In
January 2018, Richard became a sales representative for
NuVasive. Id. at ¶ 14. In January 2019, Richard
became a sales representative for Rival Medical, LLC
(“Rival”), Richard, D. 1 at ¶ 17, which at
the same time became the exclusive distributor for
NuVasive's products in Massachusetts and Rhode Island.
Day, D. 1 at ¶ 4.
also affiliated with Rival. Day, D. 1 at ¶ 4. On March
30, 2019 and April 1, 2019, Day sent emails to NuVasive's
President, U.S. Commercial, Paul McClintock stating that
Rival was dissolving and that April 1, 2019 would be
Day's last day. Id. at ¶¶ 21-22.
Richard terminated his relationship with NuVasive soon after
Day resigned from Rival. Richard, D. 1 at ¶ 28.
Day and Richard currently are affiliated with Alphatec Spine,
Inc. (“Alphatec”), which NuVasive identifies as a
competitor in the spinal products market. Id. at
Defendants have two contracts with NuVasive or in which
NuVasive has a third-party interest. The first contract,
relevant to both Defendants, is the Proprietary Information,
Inventions Assignment, Arbitration, and Restrictive Covenants
Agreement (the “NuVasive PIIA”) between each
Defendant and NuVasive. Day, D. 1-1. The NuVasive PIIA
includes both a non-solicitation clause (Section VI) and a
non-competition clause (Section VII). Day, D. 1-1 at 6-9.
Both clauses include provisions extending the terms of the
clauses for one year following the termination of
Defendants' engagement with NuVasive, “regardless
of the reason for the termination.” Id. The
non-solicitation clause provides that the employee agrees not
to “solicit, entice, persuade, induce, call upon or
provide services to any of the Customers (as defined in
Section VII), accounts or clients that I worked with, had
responsibility or oversight of, provided services related to,
or learned significant information about during my employment
(or other association) with the Company for any purpose other
than for the benefit of the Company” or to
“induce or influence, or seek to induce or influence,
any person who is employed or engaged by the Company . . .
with the purpose of obtaining such person as an employee . .
. for a business competitive with the Company.”
Id. at 7. The non-competition clause forbids the
employee from any affiliation with a “Conflicting
Organization, ” which is defined as “any person,
group of persons, or organization that is engaged in, or
about to be engaged in, research on, consulting regarding, or
development, production, marketing or selling of any product,
process, invention or service, which resembles, competes
with, or replaces a product, process, machine, invention or
service upon which I shall have worked or about which I
became knowledgeable as a result of my relationship with the
Company, and whose use or marketability could be enhanced by
the application of Proprietary Information to which I shall
have had access during such relationship.” Id.
For employees with certain titles, including Sales Director,
Sales Associate and “any substantially similar
position[s], ” the “post-employment
restrictions” are limited to Customers “for which
I . . . was assigned responsibility for by the Company,
participated in sales calls and/or marketing efforts on
behalf of the Company, and/or covered medical procedures on
behalf of Company, during the last twelve months of my
employment with Company . . . .” Id. at 8.
second relevant contract for Day is the Sales Representative
Agreement between Rival Medical and NuVasive (the
“Sales Agreement”). Day, D. 1 at ¶ 17. The
Sales Agreement was executed on January 1, 2019 and has a
three-year term. Day, D. 1-1 at 14. The Sales Agreement
permits Rival to terminate the contract if NuVasive
materially breaches its terms. Id. at 25.
second relevant contract for Richard is the Proprietary
Information, Inventions Assignment, Arbitration, and
Restrictive Covenants Agreement between Richard and Rival
(the “Rival PIIA”). Richard, D. 1 at ¶¶
18-19. The Rival PIIA contains a substantially identical
non-solicitation clause (Section VI) and non-competition
clause (Section VII) as the NuVasive PIIA. Richard, D. 1-2 at
7-9. The Rival PIIA also includes a ...