United States District Court, S.D. Texas, Houston Division
SUMMARY JUDGMENT OPINION AND ORDER
STEPHEN WM SMITH, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on plaintiff PPD Enterprises,
LLC's motion for summary judgment on defendant's
counterclaim (Dkt. 145).Having considered the parties'
submissions and the law, the motion is denied.
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
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.
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).
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.). 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.
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.