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Nuvasive, Inc. v. Leduff

United States District Court, M.D. Florida, Fort Myers Division

November 13, 2019

NUVASIVE, INC., Plaintiff,

          OPINION AND ORDER [1]


         Before the Court is Plaintiff NuVasive, Inc.'s Motion for Preliminary Injunction Against Defendant Christopher LeDuff (Doc. 7), LeDuff's opposition (Doc. 21), and NuVasive's reply (Doc. 28). On October 28, 2019, the Court held oral argument on NuVasive's motion and reserved ruling. (Doc. 35). For the below reasons, the Court denies the preliminary injunction.[2]


         This is an unfair competition case-one of many between NuVasive and Defendant Absolute Medical Systems, LLC. NuVasive and Absolute Medical compete in the medical device industry. The companies (or their successors) used to do business together but leadership changes have now resulted in them being competitors. The change of allegiances has trickled down to the employees. Absolute Medical and its counterpart, Alphatec, Inc., are allegedly recruiting NuVasive's sales representatives to work for them. LeDuff is one such employee. To prevent further pilfering of its workforce and customer base, NuVasive is trying to enforce non-solicitation and non-compete restrictive covenants its sales agents signed when they started working at NuVasive. Against this backdrop, the Court turns to this case's facts.


         The Court makes these factual findings based on the admitted allegations and evidence submitted with the parties' briefing:[3]

         NuVasive is a medical device company that manufactures products for spine disorders. It markets and sells its products through sales agents like LeDuff. For the past six years, LeDuff sold NuVasive products in Fort Myers and Naples. Sales agents like LeDuff are privy to the company's confidential and proprietary information such as prices, customer preferences, products details, product research sales techniques, and sales forecasts. (Doc. 7-1 at 5). NuVasive also trains its sales staff on products, methodology, trade secrets and other proprietary information.

         About seven weeks ago, NuVasive fired LeDuff upon learning he planned to work for its direct competitor, Alphatec, Inc., and was soliciting NuVasive customers and an employee to join him. (Doc. 7-1 at 5; Doc. 7-2 at 1-2; Doc. 7-2 at 2). LeDuff also allegedly told his boss, Phillip Poisson, that he would compete against the company while working for Alphatec. (Doc. 7-2 at 2, ¶ 6).

         According to NuVasive, LeDuff has made good on that promise. Since LeDuff's firing, four of his former NuVasive surgeon-customers have used or are scheduling to use Alphatec products for the first time. (Doc. 7-1 at 1-2; Doc. 28-1 at 1). Those surgeons are Dr. Paul Richard, Dr. Mark Graham, Dr. Constatine Plakas, and Dr. Dean Lin. Hospitals in Fort Myers and Naples are also in LeDuff's crosshairs. NuVasive says so because a Lee Health System representative mistakenly emailed NuVasive about pricing information for Alphatec's products two days after LeDuff's firing. (Doc. 7-2 at 2, ¶ 7).

         Because of LeDuff's actions, NuVasive sues him for breach of duty of loyalty and breach of contract.[4] (Doc. 1). Both claims are based on LeDuff stealing or trying to steal NuVasive's customers and employees for Alphatec. (Doc. 1 at 8-9, ¶¶ 36, 42). NuVasive argues that LeDuff's actions have violated the non-solicitation and non-compete restrictive covenants in the Proprietary Information, Inventions Assignment and Restrictive Covenant (“PIIA”) LeDuff signed when he worked at NuVasive. (Doc. 1-1). NuVasive thus moves to enjoin LeDuff from further violating the PIIA while they litigate this case.

         Two PIIA provisions are at issue. Under the non-solicitation provision, LeDuff agreed not to poach NuVasive's employees, agents, and independent contractors for one year after leaving NuVasive's employ:

I agree that during the term of my engagement and for one (1) year thereafter, I will not induce or influence, or seek to induce of influence, any person who is employed or engaged by the Company (as an agent, employee, independent contractor, or in any other capacity) . . . with the purpose of obtaining such person as an employee or independent contractor for a business competitive with the Company, or causing such person to terminate his or her employment, agency or relationship with the Company[.]

(Doc. 1-1 at 7, § VI). Under the non-compete provision, LeDuff agreed not to work for a competitor or start a competing business for the same period:

I agree that during the course of my engagement and for a period of one (1) year immediately following the termination of my relationship with the Company . . . I will not, without the prior written consent of the Company, (i) serve as a . . . employee . . . or (iii) . . . work or consult for or otherwise affiliate myself with, any Conflicting Organization. A Conflicting Organization is any . . . organization that is 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 ...

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