Poly-Med, Inc. v. Novus Scientific Pte. LTD, Civil Action No.: 8:15-cv-01964-JMC
| Decision Date | 31 August 2018 |
| Docket Number | Civil Action No.: 8:15-cv-01964-JMC |
| Citation | 330 F.Supp.3d 1067 |
| Parties | POLY-MED, INC., Plaintiff, v. NOVUS SCIENTIFIC PTE. LTD, Novus Scientific, Inc. and Novus Scientific AB, Defendants. |
| Court | U.S. District Court — District of South Carolina |
Bernie W. Ellis, McNair Law Firm, Greenville, SC, Marwan S. Zubi, Pro Hac Vice, Paul Peter Nicolai, Pro Hac Vice, Nicolai Law Group PC, Springfield, MA, for Plaintiff.
Jennifer L. Mallory, Mark C. Dukes, Robert Hall McWilliams, Nelson Mullins Riley and Scarborough, Joseph Calhoun Watson, Robinson Gray Stepp and Laffitte LLC, Columbia, SC, Samuel W. Outten, Nelson Mullins Riley and Scarborough, Greenville, SC, for Defendants.
Plaintiff Poly-Med, Inc. ("Plaintiff") filed this action seeking monetary damages and equitable relief from Defendants Novus Scientific Pte. Ltd., Novus Scientific, Inc., and Novus Scientific AB (collectively "Defendants") as a result of alleged violations of the parties' business agreement. (ECF No. 181.)
This matter is before the court pursuant to Plaintiff's Motion for Summary Judgment (ECF No. 268). For the reasons set forth below, the court GRANTS IN PART and DENIES IN PART1 Plaintiff's Motion for Summary Judgment (ECF No. 268).
The court adopts its prior recitation of the facts from its April 24, 2018 Order and Opinion (ECF No. 252) granting Defendants' Motion for Partial Summary Judgment (ECF No. 209) on Plaintiff's hernia
only and patent application breach of contract claims. As brief background, in June 2005, Plaintiff and Radi Medical Systems AB ("Radi AB"), a Swedish corporation in Uppsala, Sweden, entered into a Sale of Materials and License Agreement (the "Agreement") for the development and manufacture of Absorbable Composite Meshes. (ECF No. 181 at 4-5.) Pursuant to this Agreement, Plaintiff manufactured and Defendants developed and sold TIGR®Matrix Surgical Mesh
("TIGR®Mesh"). (Id. at 9 ¶ 42-46.) In December 2008, Radi AB assigned the Agreement to Novus Scientific Pte. Ltd. or Novus Scientific, Inc., which own subsidiaries Novus Scientific AB and Novus Scientific, Inc. (Id. at ¶ 19-20).
On January 15, 2007, Dr. Torbjorn Mathisen, Senior Scientist of Novus Scientific AB,3 emailed Dr. Shalaby with several questions, including one about a suture product made using SMC-7, one of the two polymers used in TIGR®Mesh:
During our last visit[,] we discussed a suture made from the same material as used in the long[-]lasting multifilament in the surgical mesh
(SMC-7). I think the name was Osseoprim and it was FDA registered according to your information. I have searched for the 510K filing on [the] FDA[']s homepage, but cannot find such a suture.4
(ECF No. 268-EE at 39020.) That same day, Plaintiff responded to Dr. Mathisen's inquiries with a memo identifying the product Dr. Mathisen called "Osseoprim" as "Osteoprene" and informing him of the registration number of the 510K application. (ECF No. 268-FF at 39833.) Dr. Mathisen again inquired about Osteoprene on October 23, 2008, this time in reference to developing a similar suture product. (ECF No. 268-GG at 6157.) Then, on November 6, 2009, Dr. Mathisen, for a third time, inquired about Osteoprene in an email on which Magnusson and Dr. Roger Johansson5 were copied, but did not mention the polymers used in Osteoprene. (ECF No. 301-I at 1-2.)6
. As the current [A]greement is worded, we only have rights to the mesh for the hernia indication....Sat with [Dr.] Roger [Johansson] yesterday and reviewed the [A]greement. I will be writing down a few things that we would like to amend and for you and [Dr. Johansson] to look over before we take up these items with [Dr.] Shalaby.
(ECF No. 268-Z at 5509.) During his deposition on May 17, 2018, Dr. Mathisen stated he was not "completely familiar with the [A]greement," and that apart from himself and the Regulatory Department, he did not know if anyone else was aware that SMC-7 was being used in Osteoprene. (ECF 290-21 at 133.)
On May 8, 2015, Plaintiff commenced the present action against Defendants. (ECF No. 1.) Plaintiff filed its Second Amended Complaint on June 10, 2017, alleging breach of contract, tortious interference with contract, and violation of the South Carolina Unfair Trade Practices Act ("SCUTPA"), S.C. Code Ann. §§ 39-5-10 to -560 (2016). (ECF No. 181 at 14-29.) On August 29, 2017, Defendants filed their Answer, Affirmative and Other Defenses to the Second Amended Complaint and Amended Counterclaims, alleging breach of contract, intentional interference with existing contractual relations, business defamation, violation of SCUPTA, and conversion. (ECF Nos. 197 at 52-66, 198 at 52-63.) On October 5, 2017, Defendants moved for partial summary judgment on Plaintiff's breach of contract claims (ECF No. 209), which the court granted on April 24, 2018, as to Plaintiff's "hernia
only" and "patent application" breach of contract claims (ECF No. 252.) On June 4, 2018, Plaintiff filed a Motion for Summary Judgment on (1) "Plaintiff's claim for a declaration that the [Agreement]...is terminated" and (2) all of Defendants' counterclaims. (ECF No. 268 at 1.) Defendants submitted their Response in Opposition on July 9, 2018. (ECF No. 290.) On July 23, 2018, Plaintiff filed its Reply in Support. (ECF No. 301.) The court heard argument from the parties on this matter on August 9, 2018. (ECF No. 357). On August 21, 2018, the court granted Plaintiff's summary judgment motion in part as to Defendants' tortious interference claim and granted Defendants' Summary Judgment Motion Regarding PMI's Tortious Interference Claims.8 (ECF No. 404.) On August 27, 2018, the court denied Plaintiff's summary judgment motion in part as to Plaintiff's declaratory judgment action because declaratory judgment is a remedy that must accompany a valid cause of action. (ECF No. 412.) The causes of action for which Plaintiff had requested declaratory relief were previously disposed of by the court on Defendants' summary judgment motion regarding Plaintiff's hernia only and patent application breach of contract claims. (ECF No. 252.) Therefore, the court also dismissed Plaintiff's declaratory judgment action. (ECF No. 412.)
The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a) based on Plaintiff's allegations that the action is between citizens of different states and/or countries and the amount in controversy is in excess of $75,000.00, exclusive of interest and costs. (ECF No. 181 at 1 ¶ 1–2 ¶ 4 & 3 ¶ 11.) Specifically, Plaintiff alleges it is a South Carolina corporation with its principal place of business in Anderson, South Carolina; Novus Scientific Pte. Ltd. is a Singaporean corporation with its principal place of business in Singapore; Novus Scientific, Inc. is a Delaware corporation with its principal place of business in San Diego, California; and Novus Scientific AB is a Swedish corporation with its principal place of business in Uppsala, Sweden. (Id. ) In this regard, the court is satisfied complete diversity exists between the parties and the amount in controversy is sufficient to confer jurisdiction on this court.
Summary judgment should be granted "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 fact is "material" if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 248–49, ...
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