United States District Court, S.D. Florida
ALTMAN, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court upon the parties'
cross-motions for summary judgment [ECF Nos. 66 &
In its Amended Complaint (“Am. Compl.”) [ECF No.
41], the Plaintiff, Matrix Health Group
(“BioMatrix”), asserts eight claims: Breach of
Contract against John Sowersby (Count I); Misappropriation of
Trade Secrets under the Defend Trade Secrets Act, 18 U.S.C.
§ 1836, against both Sowersby and InfuCare (together,
the “Defendants”) (Count II); Violation of
Florida's Uniform Trade Secret Act (“FUTSA”)
against the Defendants (Count III); Tortious Interference
with Contract against InfuCare (Count IV); Breach of the Duty
of Loyalty against Sowersby (Count V); Tortious Interference
with Business Relationships against Sowersby (Count VI);
Civil Conspiracy to Commit Tortious Interference with
Business Relationships against the Defendants (Count VII);
and Unjust Enrichment against the Defendants (Count VIII).
the Defendants claim that they have moved for summary
judgment “on all claims contained in the Amended
Complaint, ” see Def. MSJ at 2, they have
included briefing and argument only as to Counts I-V. See
generally Def. MSJ. Accordingly, the Court hereby
summarily DENIES their Motion as to Counts
VI-VIII. See Singh v. U.S. Atty. Gen., 561 F.3d
1275, 1278 (11th Cir. 2009) (“[S]imply stating that an
issue exists, without further argument or discussion, ”
is not sufficient to preserve a party's right to contest
that issue). For their part, BioMatrix seeks summary judgment
only as to Counts I-V of the Amended Complaint. See
generally Pl. MSJ.
Court held a hearing on May 20, 2019, at which the parties
presented their oral arguments. For the reasons set out
below, the Court hereby DENIES both motions
for summary judgment.
provides Intravenous Immunoglobulin Therapy
(“IVIG”), a type of blood infusion treatment for
patients with certain medical conditions. Pl. Statement of
Material Facts (“Pl. SMF”) [ECF No. 67 ¶ 1].
BioMatrix “maintains” information with respect to
“which patients are eligible for certain products based
on their particular insurance plans and which patients are
eligible for certain insurance benefits . . . and which plans
provide the most profitability for BioMatrix.”
Id. ¶ 2. BioMatrix also employs “sales
representatives”-like Sowersby-to “maintain and
support” its patients by answering their questions and
coordinating with their nurses and treating physicians.
Id. ¶ 6. BioMatrix hired Sowersby in July 2014
and assigned him to manage its central and north Florida
regions. Id. ¶ 7. The parties disagree over
Sowersby's precise role at BioMatrix. But it suffices to
say here that he was tasked with developing relationships
with physicians whom, BioMatrix hoped, would later refer
their patients to BioMatrix for IVIG treatment. Id.
was hired, Sowersby signed, among other documents, an
“Offer of Employment and Employment Contract, ”
an “Employment Code of Conduct Agreement, ” and
an “Employee Handbook Receipt and
Acknowledgement.” Id. ¶¶ 10-12.
While the parties quibble over the legal effect of these
documents, they do not dispute that Sowersby signed them.
March of 2018, an InfuCare representative contacted Sowersby
about leaving BioMatrix and joining InfuCare. Pl. SMF ¶
29. By April 4, 2018, InfuCare had offered Sowersby a job.
Id. ¶ 31. On April 14, 2018, Sowersby signed
and returned to InfuCare the offer letter he had received ten
days earlier. Id. ¶ 32. Although InfuCare
admits that Sowersby began to discuss transferring patients
from BioMatrix to InfuCare prior to notifying BioMatrix of
his intent to resign, the parties fiercely dispute whether
Sowersby caused the patients to switch over;
whether, instead, the patients' treating physician caused
the switch; or whether the patients themselves made an
independent decision to leave BioMatrix for InfuCare.
Id. ¶¶ 37-51. On this point, however,
Sowersby's testimony is clear: he hoped to have “as
many patients as possible” follow him from BioMatrix to
InfuCare. Id. ¶ 52. The parties agree that, in
the end, six patients Sowersby had worked with at BioMatrix
transferred from BioMatrix to InfuCare. Id. ¶
employment with InfuCare began on May 1, 2018.
Defendants' Statement of Material Facts (“Def.
SMF”) [ECF No. 77 ¶ 30]. On May 11, 2018, after
receiving a cease and desist letter from BioMatrix's
legal counsel, InfuCare's owner, Deven Patel, sent
Sowersby an email, in which he “acknowledge[d]”
Sowersby's “restrictive covenant” with
BioMatrix. Pl. SMF ¶ 61. BioMatrix contends that,
although InfuCare knew of Sowersby's “restrictive
covenant” before that e-mail, it nevertheless
“allowed Sowersby to continue breaching [his]
restrictions.” Def. SMF ¶ 31.
now seeks to recover (1) the $131, 278 in “gross profit
loss” it says it suffered in 2018 as a result of the
loss of the six patients to InfuCare; and (2) an additional
$1, 650, 105 that, it claims, will constitute its future lost
profits over the next nine years (beginning in 2019). Def.
SMF ¶ 44.
judgment is appropriate where there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a).
In determining whether to grant summary judgment, the Court
must consider “particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c). “By its very terms, this standard
provides that the mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). An issue of fact is “material” if it
might affect the outcome of the case under the governing law.
Id. at 248. A dispute about a material fact is
“genuine” if the evidence could lead a reasonable
factfinder to rule for the non-moving party. Id.
summary judgment, the moving party has the burden of proving
the absence of a genuine issue of material fact, and all
factual inferences are drawn in favor of the non-moving
party. See e.g., Allen v. Tyson Foods Inc., 121 F.3d
642, 646 (11th Cir. 1997). Once the moving party satisfies
its initial burden, the burden shifts to the non-moving party
to come forward with evidence that a genuine issue of
material fact precludes summary judgment. See Bailey v.
Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002);
Fed.R.Civ.P. 56(e). “If reasonable minds could differ
on the inferences arising from undisputed facts, then a court
should deny summary judgment.” Miranda v. B & B
Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir.
1992). Notably, assessments of credibility-no less than the
weighing of evidence-are fact questions not susceptible of
disposition at summary judgment. Strickland v. Norfolk S.
Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). The Court
must analyze the record as a whole-and not just the evidence
the parties have singled out for consideration. See
Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1570
(11th Cir. 1987). If there are any genuine issues of material
fact, the Court must deny summary judgment and proceed to
trial. Whelan v. Royal Caribbean Cruises Ltd., No.
1:12-CV-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14,
2013) (citing Envtl. Def. Fund v. Marsh, 651 F.2d
983, 991 (5th Cir. 1981)).
The Declaration of Dr. Raam Sambandam
Defendants attached to their Motion for Summary Judgment a
declaration from Dr. Raam Sambandam, the physician who
treated the six patients at issue here. See Dr.
Sambandam Decl. [ECF No. 70-10]. In its Response to the
Defendants' MSJ, BioMatrix asks the Court not to consider
this declaration because the Defendants failed to disclose
Dr. Sambandam as a witness in the Initial Disclosures they
filed under Federal Rule of Civil Procedure 26. Pl. Resp. MSJ
Federal Rules of Civil Procedure make clear that “[i]f
a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”
Fed.R.Civ.P. 37(c)(1) (emphasis added). And the Rules'
Committee Notes explain that “[l]imiting the automatic
sanction to violations ‘without substantial
justification,' coupled with the exception for violations
that are ‘harmless,' is needed to avoid unduly
harsh penalties in a variety of situations: e.g.,
the inadvertent omission from a Rule 26(a)(1)(A) disclosure
of the name of a potential witness known to all
parties . . . .” Fed.R.Civ.P. 37(c)(1) advisory
committee's note to 1993 amendment (emphasis added). This
exception is, of course, consistent with the purpose behind
Rule 26's disclosure requirement: to provide the parties
with an adequate opportunity to conduct discovery on relevant
sources of information about which they would otherwise (and
unfairly) remain ignorant. See Fed. R. Civ. P. 26(e)
(requiring that a “party who has made a disclosure
under Rule 26(a) . . . supplement or correct its
disclosure” only if “the party learns that in
some material respect the disclosure or response is
incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to
the other parties during the discovery process or in
writing”) (emphasis added).
then, courts in this Circuit routinely hold that a
party's failure to disclose a witness is
“harmless” for purposes of Rule 37(c)(1) where,
as here, the opposing party knew of the undisclosed witness.
See Brown v. Chertoff, No. 406CV002, 2009 WL 50163,
at *4-5 (S.D. Ga. Jan. 7, 2009) aff'd sub nom. Brown
v. Napolitano, 380 Fed.Appx. 832 (11th Cir. 2010)
(denying motion in limine where the plaintiff
“was aware of the identities of [non-disclosed
witnesses] during discovery and could have sought to depose
them had he chose to do so”); Wajcman v. Inv. Corp.
of Palm Beach, No. 07-80912-CIV, 2009 WL 465071, at *5
(S.D. Fla. Feb. 23, 2009) (denying motion in limine
where party was well aware of non-disclosed witness'
existence and significance); Burden v. City of Opa
Locka, No. 11-22018-CIV, 2012 WL 4764592, at *8 (S.D.
Fla. Oct. 7, 2012) (plaintiffs were unable to demonstrate
that the failure to provide them with [non- disclosed
witness's declaration] was not harmless because the
witness was referenced in the plaintiffs' own complaint);
Wolfe v. Sec'y, Dep't of Corr., No.
5:10-CV-663-OC-PRL, 2012 WL 6740732, at *1 (M.D. Fla. Dec.
30, 2012) (“The Court agrees that the identity of
[non-disclosed witness] was made known to Plaintiff during
the discovery process, and thus, his testimony will be
permitted. [Non-disclosed witness] was identified . . .
during the deposition of Defendant's medical
expert.”); Cardinal Health, Inc. v. Delivery
Specialists, Inc., No. 10-20555-CIV-UNGARO, 2011 WL
845915, at *5 (S.D. Fla. Mar. 8, 2011) (denying motion to
strike declaration submitted in support of summary judgment
where party should have known of undisclosed witness'
existence prior to the filing of the opposing party's
summary judgment motion in light of the witness'
identification during discovery).
is no question that Dr. Sambandam-and the relevant
information he possessed- was “made known to
[BioMatrix] during the discovery process.” To begin
with, both Dr. Sambandam's name and his role in the
events that precipitated this lawsuit were referenced dozens
of times during Sowersby's deposition. See
generally Sowersby Dep. [ECF No. 68-1 & 68-2].
Indeed, Sowersby testified about meeting with Dr. Sambandam
just before he left BioMatrix- and specifically testified
that, at this meeting, the two discussed the possibility that
Dr. Sambandam might begin sending his patients to Sowersby at
InfuCare. Sowersby Dep. 116:2-19 [ECF No. 68-1 at 30]. Dr.
Sambandam was also a focal point of the deposition of
BioMatrix's own 30(b)(6) witness, Jordan ...