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PPD Enterprises, LLC v. Stryker Corp

United States District Court, S.D. Texas, Houston Division

November 1, 2017

PPD ENTERPRISES, LLC, Plaintiff,
v.
Stryker Corporation, et al., Defendants.

          SUMMARY JUDGMENT OPINION AND ORDER

          STEPHEN WM SMITH, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on plaintiff PPD Enterprises, LLC's motion for summary judgment on defendant's counterclaim (Dkt. 145).[1]Having considered the parties' submissions and the law, the motion is denied.

         Background

         In June 2013, PPD and MAKO Surgical Corp. entered into a Sales Representative Agreement pursuant to which PPD would be the exclusive sales representative for MAKO Restoris partial knee and total hip replacement implant systems and related accessories. The MAKO implants are designed to be used with MAKO's RIO (Robotic Arm Interactive Orthopedic) system. PPD also distributes products manufactured by Corin, USA, a MAKO/Stryker competitor.

         MAKO terminated the Sales Representative Agreement on October 13, 2014, citing violations of Section 4.1 of the Agreement regarding PPD's responsibilities. Dkt. 160-6. PPD sued defendants in February 2016 asserting claims for breach of contract and tortious interference with PPD's business relationships. In December 2016, defendants filed a breach of contract counterclaim against PPD. PPD now seeks summary judgment on the counterclaim because "PPD never sold a "Competitive Product" nor engaged in "Competitive Activities" as defined in the Agreement, and MAKO has no evidence of the same."Dkt. 145, at 1.

         Summary Judgment Standards

         Summary judgment is appropriate if no genuine disputes of material fact exist, and the moving party is entitled to judgment as a matter of law. FED. R. ClV. P. 56(a). The party moving for summary judgment has the initial burden of proving that there are no genuine disputes of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). Dispute about a material fact is "genuine" if the submitted evidence could lead a reasonable jury to find for the nonmoving party. In re Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001). "An issue is material if its resolution could affect the outcome of the action." Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002). In determining whether a genuine dispute of material fact exists, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 255 (1986).

         Analysis

         Defendants' counterclaim alleges:

PPD materially breached the Sales Representative Agreement by, among other things, selling products competitive to the MAKO RESTORSIS partial knee implant systems and related consumables and instruments and the MAKO RESTORSIS total hip arthroplasty implant systems and related consumables and instruments (including Corin products) in 2014 prior to the termination of the Agreement.

Dkt. 41, at 3. To succeed on this claim, defendants must prove (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) resulting damages. David v. Texas Farm Bur. Ins., 470 S.W.3d 97, 104 (Tex. App. - Houston [lstDist.] 2015, no pet.).[2] There is no dispute in this case that the Sales Representative Agreement is a valid contract, and PPD does not contend that MAKO failed to perform.

         PPD argues first that there is no evidence that PPD sold "Competitive Products" as defined in the Agreement. Defendants counter that even if true, PPD breached its contractual obligation "to use commercially-reasonable efforts to sell MAKO-branded products with the MAKO surgical robot." Dkt. 175 at 2. PPD contends that defendants did not plead this "commercially-reasonable efforts" claim, and that in any event there is no evidence that PPD's sale of Corin USA products violates the Agreement.

         Competitive ...


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