United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Defendants' Motion for Partial
Summary Judgment Regarding Plaintiff's Non-Patent Claims
Based on Running of the Applicable Statutes of Limitations
(Dkt. #218). After reviewing the relevant pleadings, the
Court denies Defendants' motion.
November 2, 2015, Tech Pharmacy filed suit against Golden
Gate National Senior Care LLC d/b/a Golden LivingCenters
(“GLC”) and Alixa Rx LLC (“Alixa”),
alleging patent infringement. Tech Pharmacy asserts Claims 7,
9, and 10 from U.S. Patent No. 7, 698, 019; Claims 5, 7, and
8 from U.S. Patent No. 8, 209, 193; Claims 1, 2, and 6 from
U.S. Reissue Patent No. RE44, 127; Claims 1 and 4 from U.S.
Patent No. 8, 612, 256; and Claim 1 from U.S. Patent No. 8,
954, 338 (collectively, the “patents-in-suit”).
The patents-in-suit articulate a system and method for
enhanced distribution of pharmaceuticals in long-term care
January 22, 2016, Tech Pharmacy amended its complaint to add
state law claims of fraud, breach of contract, trade secret
misappropriation, and equitable estoppel to the original
patent infringement claims. On September, 1, 2016, Plaintiff
further amended its complaint to add Fillmore Capital
Partners LLC, Fillmore Strategic Management LLC, and Fillmore
Strategic Investors LLC (collectively with Alixa and GLC,
“Defendants”) to the state causes of action (Dkt.
March 31, 2017, Defendants' filed their motion for
partial summary judgment (Dkt. #218). On April 21, 2017, Tech
Pharmacy filed it response (Dkt. #248). On April 28, 2017,
Defendants' filed their reply (Dkt. #250). On May 5,
2017, Tech Pharmacy filed its sur-reply (Dkt. #257).
purpose of summary judgment is to isolate and dispose of
factually unsupported claims or defenses. Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). Summary
judgment is proper under Rule 56(a) of the Federal Rules of
Civil Procedure “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 dispute about a material fact is genuine when
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).
Substantive law identifies which facts are material.
Id. The trial court “must resolve all
reasonable doubts in favor of the party opposing the motion
for summary judgment.” Casey Enters., Inc. v. Am.
Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.
party seeking summary judgment bears the initial burden of
informing the court of its motion and identifying
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
that demonstrate the absence of a genuine issue of material
fact. Fed.R.Civ.P. 56(c)(1)(A); Celotex, 477 U.S. at
323. If the movant bears the burden of proof on a claim or
defense for which it is moving for summary judgment, it must
come forward with evidence that establishes “beyond
peradventure all of the essential elements of the
claim or defense.” Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears
the burden of proof, the movant may discharge the burden by
showing that there is an absence of evidence to support the
nonmovant's case. Celotex, 477 U.S. at 325;
Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424
(5th Cir. 2000). Once the movant has carried its burden, the
nonmovant must “respond to the motion for summary
judgment by setting forth particular facts indicating there
is a genuine issue for trial.” Byers, 209 F.3d
at 424 (citing Anderson, 477 U.S. at 248-49). A
nonmovant must present affirmative evidence to defeat a
properly supported motion for summary judgment.
Anderson, 477 U.S. at 257. Mere denials of material
facts, unsworn allegations, or arguments and assertions in
briefs or legal memoranda will not suffice to carry this
burden. Rather, the Court requires ‘“significant
probative evidence'” from the nonmovant to dismiss
a request for summary judgment. In re Mun. Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982)
(quoting Ferguson v. Nat'l Broad. Co., 584 F.2d
111, 114 (5th Cir. 1978)). The Court must consider all of the
evidence but “refrain from making any credibility
determinations or weighing the evidence.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
move for summary judgment, arguing that statute of
limitations bars Tech Pharmacy's state law breach of
contract, misappropriation of trade secretions, fraud, and
equitable estoppel claims against Defendants. Defendants
further argue that Tech Pharmacy cannot provide specific
evidence that the discovery rule saves Tech Pharmacy's
time-barred non-patent claims.
Texas law, the claims at issue are subject to the following
statute of limitations: (1) fraud is four years; (2)
misappropriation of trade secrets is three years; (3) breach
of contract is four years. Tex. Civ. Prac. & Rem. §
16.004(a)(4); id.§ 16.010; id. §
16.051. Tech Pharmacy filed suit on November 2, 2015. If Tech
Pharmacy's claims accrued earlier than November 2, 2012,
then its claims are barred by statute of limitations.
application of the statute of limitations is an affirmative
defense. KPMG Peat Marwick v. Harris Cty. Housing Fin.
Corp., 988 S.W.2d 746, 748 (Tex. 1999). Accordingly,
Defendants bear the burden of establishing as a matter of law
that the statute of limitations applies to Tech
Pharmacy's claims. Id. Where, as here, Tech
Pharmacy asserts the discovery rule, Defendant bears the
burden of disproving its application-or proving the
applicability of the statute of limitations in spite of the
discovery rule-to prevail on summary judgment.
discovery rule “allow[s] a claim to accrue when the
litigant first knows or with due diligence should know facts
that will form the basis of an action.” Merck &
Co. v. Reynolds, 559 U.S. 633, 646 (2010). The discovery
rule defers the statute of limitations until the injury could
reasonably have been discovered. B.P. Am. Prod. Co. v.
Marshall, 342 S.W.3d 59, 65 (Tex. 2011). The discovery,
however, will not toll “claims that could have been
discovered through the exercise of reasonable
diligence.” Kerlin v. Sauceda, 263 S.W.3d 920,
925 (Tex. 2008). Although reasonable diligence is usually a
question of fact, it may be determined as a matter of law
when there is “actual or constructive notice or when
information is readily accessible and publicly
available.” Hooks v. Samson Lone Star, LP, 457
S.W.3d 52, 58 (Tex. 2015). The discovery rule applies when
the nature of the injury is (1) inherently undiscoverable and
(2) objectively verifiable. Shell Oil Co. v. Ross,