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Mondero v. Lewes Surgical & Medical Associates P.A.

United States District Court, D. Delaware

March 29, 2018

DR. NANCY MONDERO et. al., Plaintiffs;

          Dean A. Campbell, Esq., Georgetown, DE. Attorney for Plaintiffs.

          Gregory D. Stewart, Esq., Middletown, DE. Attorney for Defendants.



         Presently 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 amended complaint.

         I. BACKGROUND

         Plaintiff 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. (D.I. 96).

         Under 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).

         Howett 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).

         There 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.


         "The 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.

         The 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. 56(c)(1).

         When 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.

         III. ...

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