United States District Court, E.D. Washington
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
SALVADOR MENDOZA, JR. UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Thomas Tabbert's Third Renewed
Motion for Summary & Declaratory Judgment, ECF No. 191.
Mr. Tabbert moves for summary judgment on his claim for
declaratory judgment that his 1995 non-compete agreement with
Howmedica is invalid and unenforceable. He also moves for
summary judgment on Howmedica's breach of contract claim
and on his affirmative defense of estoppel.
Court held a hearing on the motion on October 17, 2017. Upon
consideration of the briefing and the arguments presented at
the hearing, the Court denied Mr. Tabbert's motion for
summary judgment on all grounds. This order memorializes and
supplements the Court's oral ruling.
Mr. Tabbert worked as a sales representative for Howmedica
from 1993 to June of 2014.
1993, Mr. Tabbert began working as a sales representative for
a medical supply distribution company known as Stryker.
Initially, Mr. Tabbert sold bone-saws and other surgical
tools in a territory in Wisconsin. In 1995, he applied for a
position as a sales representative with the company now known
as Howmedica Osteonics Corp. (Howmedica), a Stryker
subsidiary corporation. Mr. Tabbert's transfer to
Howmedica was effective January 1, 1996.
of his new position, Mr. Tabbert moved to the Eastern
Washington/North Idaho region. He began selling hip and knee
implants. He also provided technical assistance during
surgeries to advise physicians and explain design aspects of
Tabbert signed a non-compete agreement when he first began
his employment with Stryker in 1993. Howmedica has a copy of
this agreement in Mr. Tabbert's personnel file.
Mr. Tabbert transferred to the new position with Howmedica,
Stryker required Mr. Tabbert to sign a new non-compete. This
non-compete (the 1995 Agreement) was signed on December 12,
1995. Under the 1995 Agreement, Mr. Tabbert would be
prohibited from either competing against Stryker or
soliciting its customers for the sale of orthopedic products
in the territory in which he worked for a period of one year
following the termination of his employment. The agreement
contained a choice of law clause designating New Jersey as
the governing state.
1995 Agreement is an “unpaid non-compete” meaning
that Stryker was not required to provide compensation for the
one-year non-compete period. The 1995 Agreement states that
it was supported by consideration, but does not specify what
this consideration is. Howmedica has a copy of the executed
agreement in Mr. Tabbert's personnel file.
Mr. Tabbert resigned from Howmedica, and Stryker indicated it
would enforce the 1995 agreement.
29, 2014, Mr. Tabbert informed his supervisor, Duane Riggs,
that he was resigning from his position at Stryker effective
June 10, 2014. That same day, Jenny Lavey, Howmedica's HR
Client Services Manager, sent Mr. Riggs an email titled
“RE: Tabbert non-compete.” ECF No. 36-3 at 8. The
email states “FYI-it's pretty old, guessing
it's a paid one!” Id. Attached to the
email was a copy of the 1995 non-compete agreement. Mr. Riggs
responded, “It's a paid non-compete, but I will not
enforce it. Please do not let him know that until we
absolutely have to. His resignation day is June 10, so I am
assuming we do not have to let him know until July 10!”
Id. Ms. Lavey sent this email only to Mr. Riggs. Mr.
Tabbert did not receive a copy of this communication.
of 2014, Mr. Tabbert contacted Ms. Lavey and asked whether
Stryker would hold Mr. Tabbert to a non-compete agreement.
Mr. Tabbert recalls that Ms. Lavey informed him that the
non-compete was “non-compensatory.” On July 16,
2014, Mr. Tabbert sent an email to his attorney stating that
he had learned “through word of mouth” that
Stryker intended to enforce the 1995 Agreement. ECF No. 298-2
at 92. After Mr. Tabbert left Howmedica, Stryker did not
compensate Mr. Tabbert.
In June of 2014, Mr. Tabbert began working for Rocky Mountain
he resigned from Howmedica, Mr. Tabbert began working for
Rocky Mountain Medical Distributors, LLC (RMMD). RMMD is a
medical supply distribution company. RMMD had a distribution
agreement with MicroPort Orthopedics, Inc. (MicroPort).
Microport designs, manufactures, and distributes medical
devices, including orthopedic hip and knee implants.
MicroPort competes directly with Howmedica.
Tabbert joined RMMD as the Regional Vice President of Sales.
ECF No. 298-8. His sales territory included North Idaho,
Washington, Oregon, Alaska and Hawaii. His sales territory in
North Idaho and Washington overlapped with his territory as a
sales representative for Howmedica.
In the twelve months following his resignation from
Howmedica, Mr. Tabbert contacted surgeons with whom he worked
as a Howmedica sales representative.
Dr. Craig Bone
Tabbert communicated with Dr. Bone, one of his former
surgeons. Mr. Tabbert informed Dr. Bone when he sent his
letter of resignation. In the twelve months following his
resignation from Howmedica, Mr. Tabbert met with Dr. Bone
three or four times. Mr. Tabbert characterized the meetings
as “[s]ocial, to say hello.” ECF No. 298-3 at 44.
In the year after Mr. Tabbert resigned from Howmedica,
Howmedica's sales to Dr. Bone declined ninety-six
percent. In October of 2016, Dr. Bone submitted a letter
indicating that he did not discontinue his business with
Howmedica because of Mr. Tabbert's actions. He also
submitted a declaration to the same effect. ECF 191-2 at 38
(dated June 21, 2017).
Dr. Patrick Dawson
Tabbert communicated with Dr. Dawson in person and via text
message. On May 9, 2014, Mr. Tabbert sent a text message to
Dr. Dawson that said, “Received a termination threat
e-mail this morning. Call me when you can.” Mr. Tabbert
also met with Dr. Dawson in Las Vegas, Nevada on or about
March 25, 2015. Howmedica's sales to Dr. Dawson declined
ninety-nine percent in the year following Mr. Tabbert's
resignation. Dr. Dawson submitted a declaration denying that
Mr. Tabbert solicited his business or that Howmedica's
sales decline was attributable to Mr. Tabbert. ECF No. 191 at
41 (dated June 26, 2017).
Dr. Mark Merrell
Tabbert acknowledged that he communicated with Dr. Merrell.
Howmedica's sales to Dr. Merrell declined twenty percent
in the year following Mr. Tabbert's resignation. Dr.
Merrell did not submit a declaration.
Dr. John Staheli
Tabbert communicated with Dr. Staheli. When asked if he
solicited or attempted to solicit Dr. Staheli, Mr. Tabbert
responded, “gray area.” Mr. Tabbert spoke with
Dr. Staheli on behalf of Microport. On one occasion, Mr.
Tabbert sent a text message to Dr. Staheli that said,
“John, Rocky will call you today for dinner
arrangements this evening if it's still good. We will
coordinate through Rocky, and I will not be there.”
Howmedica's sales to Dr. Staheli declined one percent in
the year following Mr. Tabbert's resignation. Dr. Staheli
submitted a declaration denying that Mr. Tabbert solicited
his business or that Howmedica's sales decline was
attributable to Mr. Tabbert.
Tabbert communicated with Dr. Gibbons. Mr. Tabbert had dinner
with Dr. Gibbons, his personal assistant, Tim Nicholas, and
his new partner, Josh Miller, on or about September 15, 2014.
Howmedica's sales to Dr. Gibbons declined forty-one
percent in the year following Mr. Tabbert's resignation.
Dr. Gibbons submitted a declaration denying that Mr. ...