United States District Court, D. Delaware
DR. NANCY MONDERO et. al., Plaintiffs;
LEWES SURGICAL & MEDICAL ASSOCIATES, P.A., et. al., Defendants.
A. Campbell, Esq., Georgetown, DE. Attorney for Plaintiffs.
Gregory D. Stewart, Esq., Middletown, DE. Attorney for
ANDREWS, U.S. DISTRICT JUDGE
before the Court is Plaintiffs Motion for Partial Summary
Judgment. (D.I. 96). The motion has been fully briefed. (D.I.
96, 97 & 98). For the reasons set forth herein, the
Plaintiffs motion for Partial Summary Judgment on Count X
(Breach of Fiduciary Duty) is GRANTED, Plaintiffs motion for
Partial Summary Judgment on Count XI (Intentional
Interference with Business Relations) is DENIED, and
Defendant is DENIED leave to amend the answer to the second
Judy Howett filed this case on May 9, 2014. (D.I. 1).
Defendant Lewes Surgical & Medical Associates, P. A.
("LSMA") moved to dismiss some of the claims. After
a ruling on the motion to dismiss, Howett amended her
complaint. (D.I. 23). On July 15, 2016, the parties filed
cross-motions for Summary Judgment, with LSMA moving for
Summary Judgment on Counts I and II, which was granted, and
with Howett moving for Summary Judgment on Count VIII, which
was denied. (D.I. 55); (D.I. 61); (D.I. 71, pp. 1-2). The
Court granted Howett leave to amend the pleadings on January
17, 2017. (D.I. 85). Howett filed a Second Amended Complaint,
which now included other legal theories as alternatives to
Count VIII's theory. (D.I. 86). These additional counts
included Count X, "Breach of Fiduciary Duty, " and
Count XI, "Intentional Interference with Business
Relations." (D.I. 86, ¶¶ 108-117). LSMA filed
an Answer on January 31, 2017 and asserted twenty-two
defenses, none of which were collateral estoppel, res
judicata, or "assignment of rights." (D.I. 89). On
July 31, 2017, Howett filed the Motion for Partial Summary
Judgment on Counts X and XI, which is presently at issue.
the American Recovery and Reinvestment Act of 2009, eligible
professionals are offered incentive payments for implementing
electronic medical records ("the Incentive
Program"). Ill. P.L. 5, 123 Stat. 115. An "eligible
professional" under the Act is defined as a physician,
dentist, nurse practitioner, certified nurse mid-wife, and in
some cases, physicians' assistants. 123 Stat. 115 at 491.
Howett, a nurse practitioner, and thus an eligible
professional under the Incentive Program, began employment
with LSMA in 2002. (D.I. 96-3, Exh. D, ¶ 1). Howett and
LSMA signed an employment agreement on December 29, 2008.
(D.I. 97-1). Howett claims that since the employment contract
was signed before the existence of the Incentive Program, the
contract did not reference the Incentive Program. (D.I. 96,
p.3). Howett states that LSMA did not install software to
implement the Incentive Program until 2012. (D.I. 96, p. 3).
LSMA hired M3 Healthcare Solutions (a/k/a Arete) to complete
the Incentive Program registration process for each
individual practitioner. (D.I. 86, ¶ 105; D.I. 96-3,
Exh. C, ¶ 4).
tendered her resignation on November 12, 2012, to be
effective on March 29, 2013, but was terminated by LSMA on
January 10, 2013. (D.I. 86 ¶ 54(b)). On or about March
23, 2013, the LSMA office manager, Beth Bittner, was
instructed by LSMA's principal, Dr. Seaman Abboud, to
access Howett's account to check on the status of the
Incentive Program Funds available and to cause those funds to
be disbursed into LSMA's bank account. (D.I. 96-3, Exh.
C, ¶¶ 5, 9). LSMA disputes the fact that Howett had
no part in her own registration for the Incentive Program.
(D.I. 97, p. 6). However, it is not contested that Bittner
had the credential information required to access
Howett's account after her termination, including her
log-in information, her social security number, and other
sensitive information. (D.I. 96-3, Exh. C, ¶ 4). The
funds available in Howett's account amounted to $29, 750.
(D.I. 96-3, Exh. C, ¶ 8; Exh. E).
is no dispute that, absent some assignment of rights, the
Incentive Program Funds belong to Howett as an eligible
professional under the Incentive Program. (D.I. 96, p. 8;
D.I. 97, p. 5). Howett claims that LSMA transferred
Howett's Incentive Program Funds into its own bank
account (D.I. 86, ¶ 97) and that LSMA has never denied
that transfer of funds (D.I. 96, p. 9). LSMA has not put
forth any evidence to suggest that Howett assigned her funds
to LSMA, and Howett denies any such assignment. (D.I. 96-3,
Exh. D, ¶ 8). There is no disputed material fact that
would prevent granting summary judgment for Howett on Count
X, "Breach of Fiduciary Duty." Granting LSMA's
request for leave to amend to add a twenty-third defense
would be futile in light of the lack of any evidence of an
assignment or other valid defense.
court shall grant summary judgment 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. Crv. P. 56(a). The moving party has the initial burden of
proving the absence of a genuinely disputed material fact
relative to the claims in question. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986). Material facts are
those "that could affect the outcome" of the
proceeding, and "a dispute about a material fact is
'genuine' if the evidence is sufficient to permit a
reasonable jury to return a verdict for the nonmoving
party." Lamont v. New Jersey, 637 F.3d 177, 181
(3d Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). The burden on the
moving party may be discharged by pointing out to the
district court that there is an absence of evidence
supporting the non-moving party's case. Celotex,
477 U.S. at 323.
burden then shifts to the non-movant to demonstrate the
existence of a genuine issue for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986); Williams v. Borough of West Chester, Pa.,
891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving party
asserting that a fact is genuinely disputed must support such
an assertion by: "(A) citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations ..., admissions, interrogatory
answers, or other materials; or (B) showing that the
materials cited [by the opposing party] do not establish the
absence . . . of a genuine dispute ...." FED. R. Civ. P.
determining whether a genuine issue of material fact exists,
the court must view the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in
that party's favor. Scott v. Harris, 550 U.S.
372, 380 (2007); Wishkin v. Potter, 476 F.3d 180,
184 (3d Cir. 2007). A dispute is "genuine" only if
the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson, 477 U.S.
at 247-49. If the non-moving party fails to make a sufficient
showing on an essential element of its case with respect to
which it has the burden of proof, the moving party is
entitled to judgment as a matter of law. See Celotex
Corp., 477 U.S. at 322.