NuVasive, Inc. v. Day
| NuVasive, Inc. |
| Timothy Day |
| Colin Behrmann |
| 1:2019cv10800 |
| April 22, 2019 |
| US District Court for the District of Massachusetts |
| Boston Office |
| Denise J Casper |
| M Page Kelley |
| Contract: Other |
| 28 U.S.C. § 1330 Breach of Contract |
| None |
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| Filing 253 Judge Denise J. Casper: ORDER entered. JUDGMENT (Hourihan, Lisa) |
| Filing 252 Judge Denise J. Casper: ELECTRONIC ORDER entered re #244 Motion for Attorney Fees - For the following reasons, the Court ALLOWS NuVasive's motion for attorneys' fees and costs. The Court adopted the report and recommendation on NuVasive's spoliation motion, D. 226 (adopting D. 217, the "Spoliation Order") which included the Court's award of attorneys' fees and expenses incurred in prosecuting its initial motion for sanctions and the renewed motion including costs associated with NuVasive's attempts to recover the lost (spoliated) evidence. D. 217 at 19; D. 249 at 2 n.1. NuVasive learned of Day's spoliation of text messages in August 2019 and then took steps to recover same from other sources (e.g., his phone service providers, Alphatec) which gave rise to attorneys' fees and costs that predate the formal filing of the spoliation motions. Such fees, therefore, contrary to Day's argument, D. 246 at 2-4, are part of the award of attorneys' fees and costs in the Spoliation Order. Applying the lodestar method here, D. 245 at 4 and cases cited, the hours sought by NuVasive were reasonably expended by counsel and at a reasonable rate. As the affidavits show the background, experience and rates of NuVasive's attorneys, D. 245-1; D. 245-2, and as relevant case law reflects, see, e.g., Kelly v. Riverside Partners, LLC, 397 F. Supp. 3d 75, 95 (D. Mass. 2019), the hourly rates sought here ($325-350 for partners; $230-275 for associates; and $150 for paralegals) are at or below the prevailing rates for similarly experienced attorneys in the Boston area. As to the reasonableness of the hours expended by counsel, the Court has reviewed the billing records produced and notes that the attorneys' fees reflect the costs for preparing and litigating the spoliation motion and the renewed motion for same, the cost for attempting to retrieve the spoliated evidence; and those for preparing and filing the fee petition, all attorneys' fees covered by the Spoliation Order. Given the contested nature of the spoliation motions and litigation regarding same, the Court concludes that the 217.7 hours for same was reasonable and the time spent attempting to retrieve evidence (258.9 hours) and much less time (33.4 hours through November 30, 2021) spent on the fee petition was also reasonable. The Court has considered the factors for adjusting the lodestar here upward or downward, Diaz v. Jiten Hotel Mgmt., 741 F.3d 170, 177 n.7 (1st Cir. 2013), but finds no basis to do so and Day's opposition does not provide any meritorious grounds for doing so. As to the award of expenses sought, they consist of costs for service of subpoenas on third parties for attempted recovery of the spoliated evidence, expert retention for supporting declaration and a transcript from the sanction hearing, D. 245 at 11), all reasonable costs and covered by the Spoliation Order. Accordingly, the Court ORDERS the award of $127,214.50 (as related to the preparation and prosecution of the spoliation motion and renewed motion, attempts to remediate Day's spoliation and fees, through November 30, 2021, for the preparation of the fee petition) in attorneys' fees and the award of $2,103.85 in costs. (Currie, Haley) |
| Filing 251 Judge Denise J. Casper: ORDER entered. MEMORANDUM OF DECISION - After considering the evidence presented at the evidentiary hearing and in light of the aforementioned findings of fact and conclusions of law, and in light of the earlier Memorandum and Order, D. 185, this Court will enter judgment in favor of NuVasive in the total amount of $1,602,123.(Hourihan, Lisa) |
| Filing 249 REPLY to Response to #244 MOTION for Attorney Fees and Costs filed by NuVasive, Inc.. (Cardwell, Christopher) |
| Filing 248 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #247 Motion for Leave to File Reply to Defendant's Response to NuVasive's Motion for Attorneys' Fees and Costs by NuVasive, Inc.; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Hourihan, Lisa) |
| Filing 247 MOTION for Leave to File Reply to Defendant's Response to NuVasive's Motion for Attorneys' Fees and Costs by NuVasive, Inc..(Cardwell, Christopher) |
| Filing 246 RESPONSE to Motion re #244 MOTION for Attorney Fees and Costs filed by Timothy Day. (Busch, Bryan) |
| Filing 245 MEMORANDUM in Support re #244 MOTION for Attorney Fees and Costs filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Declaration of C. Cardwell.pdf, #2 Exhibit 2 - Declaration of H. Polglase.pdf)(McFarland, M. Thomas) |
| Filing 244 MOTION for Attorney Fees and Costs by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 243 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Hearing re re: closing arguments held on 12/2/2021. Plaintiff's closing arguments. Defendant's closing arguments. Court takes matter under advisement. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Christopher Cardwell, Holly Polglase and Thomas McFarland for the plaintiff. Bryan Busch and Steven Weatherhead for the defendant.) (Hourihan, Lisa) |
| Filing 242 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at #http://www.mad.uscourts.gov/attorneys/general-info.htm (Coppola, Katelyn) |
| Filing 241 Transcript of Proceedings held on October 21, 2021, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com. Redaction Request due 12/13/2021. Redacted Transcript Deadline set for 12/23/2021. Release of Transcript Restriction set for 2/22/2022. (Coppola, Katelyn) |
| Filing 240 Transcript of Evidentiary Hearing - Day 2 held on October 20, 2021, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com. Redaction Request due 12/13/2021. Redacted Transcript Deadline set for 12/23/2021. Release of Transcript Restriction set for 2/22/2022. (Coppola, Katelyn) |
| Filing 239 Transcript of Evidentiary Hearing - Day 1 held on October 19, 2021, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com. Redaction Request due 12/13/2021. Redacted Transcript Deadline set for 12/23/2021. Release of Transcript Restriction set for 2/22/2022. (Coppola, Katelyn) |
| Filing 238 ELECTRONIC NOTICE of Hearing.This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov.Post Trial Hearing set for 12/2/2021 11:00 AM in Courtroom 11 (Remote only) before Judge Denise J. Casper. Court will give each side 20 minutes for argument. (Hourihan, Lisa) |
| Filing 237 EXHIBIT re #235 Memorandum of Law Exhibit B -- Crockett Deposition Transcript by NuVasive, Inc.. (Polglase, Holly) |
| Filing 236 BRIEF by Timothy Day Summary of Evidence Memorandum. (Busch, Bryan) |
| Filing 235 MEMORANDUM OF LAW by NuVasive, Inc.. (Attachments: #1 Exhibit A -- Proposed Adverse Inference)(Polglase, Holly) |
| Filing 234 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Evidentiary Hearing Day 3 held on 10/21/2021. Plaintiff's evidence continues with the examination of Misty Davis; cross-examination; re-direct. Defendant's evidence with the examination of Dr. Paul Glazer; cross-examination. Examination of Paul Dopp; cross-examination. Counsel to file summary of the evidence of contempt proceedings and damages of not more than 10 pages with attachments of not more than 5 pages by 11/8/21. Court takes matter under advisement. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Christopher Cardwell, Thomas McFarland and Holly Polglase for the plaintiff. Bryan Busch and Steven Weatherhead for the defendant.) (Hourihan, Lisa) |
| Filing 233 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Evidentiary Hearing Day 2 held on 10/20/2021. Plaintiff's evidence continues with the examination of Timothy Day; cross-examination; re-direct. Counsel agree to take defense witness out of order. Examination of Chad Spear; cross-examination; re-direct; re-cross. Court adjourned until 10/21/21 at 9:00AM. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Christopher Cardwell, M. Thomas McFarland and Holly Polglase for the plaintiff. Bryan Busch and Steven Weatherhead for the defendant.) (Hourihan, Lisa) |
| Filing 232 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Evidentiary Hearing Day 1 held on 10/19/2021. Preliminary matters discussed with counsel. Plaintiff's opening statement. Defendant's opening statement. Plaintiff moves Exhibits 1-41 into evidence. Plaintiff's evidence begins with the examination of Derrick Haughney; cross-examination; re-direct; re-cross. Examination of John English; cross-examination; re-direct. Examination of Timothy Day. Court adjourned until 10/20/21 at 9:00AM. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Christopher Cardwell, M. Thomas McFarland and Holly Polglase for the plaintiff. Bryan Busch and Steven Weatherhead for the defendant.) (Hourihan, Lisa) |
| Filing 231 NuVasive, Inc.'s Exhibit List by NuVasive, Inc... (Cardwell, Christopher) |
| Filing 230 NOTICE by NuVasive, Inc. of Deposition Designations (Cardwell, Christopher) |
| Filing 229 Response by NuVasive, Inc. to Defendants' Objections to Challenged Exhibits A-E. (Attachments: #1 Exhibit Exhibit 1 - C. Crockett's Depo.pdf, #2 Exhibit Exhibit 2 - Communications from Orthofix's attorney.pdf, #3 Exhibit Exhibit 3 - Subpoena to Orthofix.PDF, #4 Exhibit Exhibit 4 - Subpoena to Repscrubs.PDF, #5 Exhibit Exhibit 5 - Automated Email Notification.pdf, #6 Exhibit Exhibit 6 - HCD's Declaration.pdf)(Cardwell, Christopher) |
| Filing 227 Judge Denise J. Casper: ELECTRONIC ORDER entered. For reasons stated at the status conference, the Court denies #219 Motion to Exclude Expert Testimony (Hourihan, Lisa) |
| Filing 228 Judge Denise J. Casper: ELECTRONIC ORDER entered granting (221) Motion for Extension of Time to 10/21/2021 to Give additional time to present case in case 1:19-cv-10800-DJC; granting (134) Motion for Extension of Time to 10/21/2021 to Give additional time to present case in case 1:19-cv-10995-DJC Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 226 Judge Denise J. Casper: ELECTRONIC ORDER entered adopting Report and Recommendations re (217) Report and Recommendations in case 1:19-cv-10800-DJC Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 225 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Status Conference held on 10/13/2021 by video conference. Court hears from counsel on objections to the Report and Recommendation, D. 217, regarding Renewed Motion for Sanctions for Spoliation of Evidence filed by NuVasive, Inc. For reasons stated on the record, the Court adopts the Report and Recommendation. Court hears from counsel on MOTION to Set Aside Exclude Expert Testimony by Timothy Day, D. 291. For reasons stated on the record, motion denied. Court grants counsels request for an additional half day for testimony. Evidentiary Hearing set for 10/19/2021 09:30 AM in Courtroom 11 (In person only) before Judge Denise J. Casper. Evidentiary Hearing set for 10/20/2021 09:00 AM in Courtroom 11 (In person only) before Judge Denise J. Casper. Evidentiary Hearing set for 10/21/2021 09:00 AM in Courtroom 11 (In person only) before Judge Denise J. Casper. Counsel to provide electronic copies of exhibits with list of objections and reasons for those objections by 10/15/21. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Michael Batson, Christopher Cardwell, Thomas McFarland and Holly Polglase for the plaintiff. Steven Weatherhead and Bryan Busch for the defendants.) Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 224 NOTICE re: 10/13/21 status conference. This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the sessions courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #www.public.mad.uscourts.gov/seating-signup. For questions regarding access to hearings, you may refer to the Courts general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 223 NOTICE the Court will hear from counsel at the 10/13/21 status conference re: D. 218 OBJECTION to 217 Report and Recommendations on Plaintiff's Renewed Motions for Sanctions filed by Timothy Day. (Hourihan, Lisa) |
| Filing 222 RESPONSE to Motion re #219 MOTION to Set Aside Exclude Expert Testimony filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - July 23, 2020, Decker Depo.pdf, #2 Exhibit 2 - Decker Amended Report dated March 15, 2021.pdf, #3 Exhibit 3 - McFarland Email.pdf, #4 Exhibit 4 - June 2, 2021, Decker Depo.PDF, #5 Exhibit 5 - Placeholder for ATEC-000075-80.pdf, #6 Exhibit 6 - Dopp Depo.PDF)(McFarland, M. Thomas) |
| Filing 221 MOTION for Extension of Time to 10/21/2021 to Give additional time to present case by Timothy Day.(Busch, Bryan) Modified on 9/20/2021 to adjust date in docket text to reflect date requesting in document (Currie, Haley). |
| Filing 220 REPLY TO OBJECTION to #217 Report and Recommendations On Its Renewed Motions for Sanctions for Spoliation of Evidence filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Day ECF 218, #2 Exhibit 2 - Richard ECF 131)(McFarland, M. Thomas) |
| Filing 219 MOTION to Set Aside Exclude Expert Testimony by Timothy Day. (Attachments: #1 Exhibit 2020 Decker Transcript, #2 Exhibit 2021 Decker Transcript, #3 Exhibit Dopp Testimony, Ex. 1, #4 Exhibit 2021 Decker Report)(Busch, Bryan) |
| Filing 218 OBJECTION to #217 Report and Recommendations on Plaintiff's Renewed Motions for Sanctions filed by Timothy Day. (Busch, Bryan) |
| Filing 217 Magistrate Judge M. Page Kelley: ORDER entered. REPORT AND RECOMMENDATIONS re ( 113 in 1:19-cv-10995-DJC) MOTION for Sanctions Renewed Motion for Sanctions for Spoliation of Evidence filed by NuVasive, Inc., ( #195 in 1:19-cv-10800-DJC) MOTION for Sanctions Renewed Motion for Sanctions for Spoliation of Evidence filed by NuVasive, Inc. Recommendation: For the reasons stated, the court RECOMMENDS that plaintiffs motions (Day, #195 , Richard, 113 ) for an adverse inference and for award of reasonable costs and expenses, including reasonable attorneys fees it incurred in securing relief, be ALLOWED. Objections to R&R due by 9/7/2021. Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Vieira, Leonardo) |
| Filing 216 ELECTRONIC NOTICE of Hearing. Evidentiary Hearing set for 10/19/2021 09:00 AM in Courtroom 11 before Judge Denise J. Casper. Evidentiary Hearing set for 10/20/2021 09:00 AM in Courtroom 11 before Judge Denise J. Casper. Status Conference set for 10/13/2021 03:00 PM in Courtroom 11 before Judge Denise J. Casper. Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 215 NOTICE by NuVasive, Inc. Setting Evidentiary Hearing (McFarland, M. Thomas) |
| Filing 214 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Status Conference held on 7/28/2021. Counsel request evidentiary hearing on damages re: motion for sanctions and contempt. Estimate 2 full days. Clerk informs counsel that the week of October 18, 2021 is available. Counsel to confer and let the clerk know what dates work. Court to also set a status conference the week before the evidentiary hearing. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Michael Batson, Christopher Cardwell and M. Thomas McFarland for the plaintiff. Steven Weatherhead for the defendants.) Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 213 ELECTRONIC NOTICE OF RESCHEDULINGThis hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Status Conference set for 7/28/2021 03:45 PM in Remote Proceeding : Boston before Judge Denise J. Casper. NOTE TIME CHANGE ONLYAssociated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 212 JOINT STATEMENT of counsel Regarding Evidentiary Hearing on Damages and to Hold Defendant Day In Contempt of Court. (McFarland, M. Thomas) |
| Filing 211 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Motion Hearing held via video on 6/28/2021. Court hears argument on #195 , plaintiff's renewed motion for sanctions for spoliation of evidence, and at the same time hears argument on # 113 , renewed motion for sanctions for spoliation of evidence in a companion case, 19-cv-10995-DJC. Defendants do not wish to have an evidentiary hearing and will rest on the briefs. Counsel for plaintiff shall notify the court by Wednesday, June 30 as to whether plaintiff wishes to have an evidentiary hearing. Such a hearing, if held, will be in person and will be held during the month of July. Counsel also have until June 30 to file any further briefs in this matter. (Court Reporter: Linda Walsh at lwalshsteno@gmail.com.)(Attorneys present: Batson, McFarland, Busch, Weatherhead) Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Belmont, Kellyann) |
| Filing 210 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at #http://www.mad.uscourts.gov/attorneys/general-info.htm (Coppola, Katelyn) |
| Filing 209 Transcript of Videoconference held on June 1, 2020, before Chief Magistrate Judge M. Page Kelley. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Sarah Mubarek at sarahmubarek@comcast.net. Redaction Request due 7/14/2021. Redacted Transcript Deadline set for 7/26/2021. Release of Transcript Restriction set for 9/21/2021. (Coppola, Katelyn) |
| Filing 208 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at #http://www.mad.uscourts.gov/attorneys/general-info.htm Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Coppola, Katelyn) |
| Filing 207 Transcript of Motion Hearing held on October 2, 2020, before Chief Magistrate Judge M. Page Kelley. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kathleen Silva at kathysilva@verizon.net. Redaction Request due 7/9/2021. Redacted Transcript Deadline set for 7/19/2021. Release of Transcript Restriction set for 9/16/2021. Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Coppola, Katelyn) |
| Filing 206 ELECTRONIC NOTICE Setting Hearing on Motion (195 in 1:19-cv-10800-DJC) MOTION for Sanctions Renewed Motion for Sanctions for Spoliation of Evidence, (113 in 1:19-cv-10995-DJC) MOTION for Sanctions Renewed Motion for Sanctions for Spoliation of Evidence : Motion Hearing set for 6/28/2021 10:00 AM in Remote Proceeding : Boston before Magistrate Judge M. Page Kelley. This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov.Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Belmont, Kellyann) |
| Filing 205 NOTICE of Change of Address or Firm Name by Steven D. Weatherhead (Weatherhead, Steven) |
| Filing 204 REPLY to Response to #195 MOTION for Sanctions Renewed Motion for Sanctions for Spoliation of Evidence filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - NuVasive v. Absolute Order)(McFarland, M. Thomas) |
| Filing 203 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered granting #201 NuVasive, Inc.'s Opposed Motion for Leave of Court to Reply to Timothy Day's Memorandum in Opposition to NuVasive, Inc.'s Renewed Motion for Sanctions for Spoliation of Evidence. NuVasive, Inc. shall file a reply not to exceed 5 pages in length by May 18, 2021. (MPK, law1) |
| Filing 202 REPLY to Response to #190 Second MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court filed by NuVasive, Inc.. (Cardwell, Christopher) |
| Filing 201 MOTION for Leave to File of Court to Reply to Day's Memorandum of Law in Opposition to NuVasive's Renewed Motion for Sanctions for Spoliation of Evidence by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 200 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #197 Motion for Leave to File Reply to Timothy Day's Response and Memorandum of Law in Opposition to Plaintiff's Second Renewed Motion to Hold Defendant in Contempt of Court by NuVasive, Inc.; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Hourihan, Lisa) |
| Filing 199 RESPONSE to Motion re #195 MOTION for Sanctions Renewed Motion for Sanctions for Spoliation of Evidence filed by Timothy Day. (Busch, Bryan) |
| Filing 198 Judge Denise J. Casper: ELECTRONIC ORDER entered. REFERRING MOTION #195 MOTION for Sanctions Renewed Motion for Sanctions for Spoliation of Evidence filed by NuVasive, Inc. to Chief Magistrate Judge Kelley(Hourihan, Lisa) Motions referred to M. Page Kelley. |
| Filing 197 MOTION for Leave to File Reply to Timothy Day's Response and Memorandum of Law in Opposition to Plaintiff's Second Renewed Motion to Hold Defendant in Contempt of Court by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 196 MEMORANDUM in Support re #195 MOTION for Sanctions Renewed Motion for Sanctions for Spoliation of Evidence filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Litigation Hold Ltr, #2 Exhibit 2 - April 3, 2019, Email to Busch and Mills with Response, #3 Exhibit 3 - Declaration D. Delgado, #4 Exhibit 4 - April 22, 2019, email to Busch without attachments, #5 Exhibit 5 - Def's Resp to RPD, #6 Exhibit 6 - Depo of T. Day, #7 Exhibit 7 - Def Resp to 2nd Interrog., #8 Exhibit 8 - Declaration of R. Clayton, #9 Exhibit 9 - 2d Declaration of T. McFarland, #10 Exhibit 10 - Def's Resp. to 4th RPD, #11 Exhibit 11 - CROCKETT 000048, #12 Exhibit 12 - CROCKETT 000006, 000008, 000010-11, 000020, #13 Exhibit 13 - Depo of C. Behrmann, #14 Exhibit 14 - Depo of A. Richard, #15 Exhibit 15 - Jan. 23, 2020, McFarland and McDonough email, #16 Exhibit 16 - April 9, 2020, email from McFarland to McDonough, #17 Exhibit 17 - June 29, 2020, Letter from Busch to Cardwell, #18 Exhibit 18 - April 19, 2019, New Company Email)(McFarland, M. Thomas) |
| Filing 195 MOTION for Sanctions Renewed Motion for Sanctions for Spoliation of Evidence by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 194 RESPONSE to Motion re #190 Second MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court filed by Timothy Day. (Attachments: #1 Exhibit Transcript)(Busch, Bryan) |
| Filing 193 Motions No Longer Referred to Magistrate Judge due to Error in Referral: #190 Second MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court. (Currie, Haley) |
| Filing 192 Judge Denise J. Casper: ELECTRONIC ORDER entered. REFERRING MOTION #190 Second MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court filed by NuVasive, Inc. to Chief Magistrate Judge Kelley(Hourihan, Lisa) Motions referred to M. Page Kelley. |
| Filing 191 MEMORANDUM in Support re #190 Second MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Depo of T. Day, #2 Exhibit 2 - Correspondence from Busch to Cardwell, #3 Exhibit 3 - Email from Miles to Day, #4 Exhibit 4 - Depo of M. Day, #5 Exhibit 5 - BOD Dinner tonight email from Day to Frayne, #6 Exhibit 6 - Presentation July 25, 2019, Email with attachment from Day to Miles, #7 Exhibit 7 - Pleasure to meet you Email from Toward to Day, #8 Exhibit 8 - Def Resp to 4th Interrogatories, #9 Exhibit 9 - Expense Report, #10 Exhibit 10 - Depo of A. Richard, #11 Exhibit 11 - Def Resp to Interrog., #12 Exhibit 12 - Def Am and Supp Interrog. Resp., #13 Exhibit 13 - Arbitration Hearing Transcript)(Cardwell, Christopher) |
| Filing 190 Second MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court by NuVasive, Inc..(Cardwell, Christopher) |
| Filing 189 ELECTRONIC NOTICE of Hearing.This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Status Conference re: hearing on damages set for 7/28/2021 02:00 PM in Remote Proceeding : Boston before Judge Denise J. Casper. Counsel to file a Joint Memorandum, not more than 10 pages, summarizing what you intend to offer, how many witnesses, how much time is needed, and when hearing to be scheduled by 7/23/21. The Court intends to hold this hearing in both cases together. Associated Cases: 1:19-cv-10995-DJC, 1:19-cv-10800-DJC(Hourihan, Lisa) |
| Filing 188 NOTICE by NuVasive, Inc. Joint Notice (Cardwell, Christopher) |
| Filing 187 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #142 Motion for Contempt. Renewed motion for contempt against Mr. Day is DENIED without prejudice to renew in conjunction with any evidentiary hearing that parties seek on the breach of contract claim, see D. 186. (Hourihan, Lisa) |
| Filing 186 Judge Denise J. Casper: ELECTRONIC ORDER entered. In light of the Court's ruling today resolving the motions for summary judgment and granting same to NuVasive on the breach of contract claims against Mr. Day and Mr. Richard, the Court understands that NuVasive seeks a hearing regarding potential damages regarding same. To give the parties time to discuss whether they can resolve any dispute regarding same without the necessity of further hearing, the Court ORDERS as follows. The parties shall confer and see if they can resolve their differences regarding same. If they cannot, they shall file a joint statement by 3/25/2021 proposing a mutually convenient date for any hearing regarding damages.Associated Cases: 1:19-cv-10995-DJC, 1:19-cv-10800-DJC(Hourihan, Lisa) |
| Filing 185 Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court ALLOWS NuVasive's motion for partial summary judgment against Day in part as to the breach of contract claim, Day, D. 146; ALLOWS NuVasive's motion for partial summary judgment against Richard on the breach of contract claim, Richard, D. 81; ALLOWS Day's motion for partial summary judgment as to the tortious interference claim, Day, D. 144, and DENIES Richard's motion for summary judgment, Richard, D. 85.(Hourihan, Lisa) |
| Filing 184 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered denying #125 Motion for Sanctions without prejudice to renewal after the decision on the outstanding summary judgment motions is issued. (MacDougall, Patricia) |
| Filing 183 CORPORATE DISCLOSURE STATEMENT by NuVasive, Inc. identifying Other Affiliate BlackRock, Inc. for NuVasive, Inc... (Polglase, Holly) |
| Filing 182 NOTICE of Change of Address or Firm Name by Bryan Busch (Busch, Bryan) |
| Filing 181 Supplemental REPLY to Response to #142 MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2)(Kinton, Michael) |
| Filing 180 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered granting #179 NuVasive, Inc.'s Motion for Leave to File Supplemental Memorandum, no opposition having been filed; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (MacDougall, Patricia) |
| Filing 179 MOTION for Leave to File Supplemental Memorandum in Support of NuVasive's Reply to Defendant's Opposition to NuVasive's Renewed Motion for Contempt by NuVasive, Inc.. (Attachments: #1 Exhibit A to Motion for Leave, #2 Exhibit 1 to Proposed Supplemental Memorandum, #3 Exhibit 2 to Proposed Supplemental Memorandum)(Kinton, Michael) |
| Filing 178 NOTICE by Timothy Day of Filing Amended and Supplemental Responses to Interrogatories (Busch, Bryan) |
| Filing 177 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Motion Hearing held via video on 10/2/2020 re #161 MOTION to Compel filed by Timothy Day. After hearing argument from the parties, the court allows #161 , defendant's motion to compel. (Court Reporter: Kathleen Silva at kathysilva@verizon.net.)(Attorneys present: M. Thomas McFarland for the plaintiff and Bryan Busch for defendant) (Belmont, Kellyann) |
| Filing 176 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held by video conference on 9/30/2020 re #146 MOTION for Partial Summary Judgment by NuVasive, Inc. and #144 MOTION for Summary Judgment and supporting Brief by Timothy Day. Arguments. Court takes under advisement #146 MOTION for Partial Summary Judgment and #144 MOTION for Summary Judgment. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Mary Taylor Gallagher for the Plaintiff. Bryan Busch for the Defendant) (McKillop, Matthew) |
| Filing 175 Judge Denise J. Casper: Standing Order Regarding Appearance of Counsel Via Telephone or Videoconference Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 174 NOTICE re: motion hearing on 9/30/20This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the sessions courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #www.public.mad.uscourts.gov/seating-signup. For questions regarding access to hearings, you may refer to the Courts general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 173 ELECTRONIC NOTICE Setting Hearing on Motion #161 MOTION to Compel Depositions : Motion Hearing set for 10/2/2020 01:00 PM by video before Magistrate Judge M. Page Kelley. This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov.(Belmont, Kellyann) |
| Filing 172 RESPONSE to Motion re #161 MOTION to Compel Depositions filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Jan. 16-17, 2020, email thread, #2 Exhibit 2 - Feb. 17, 2020, email thread, #3 Exhibit 3 - Feb. 27, 2020, email thread, #4 Exhibit 4 - June 12, 2020, email from Mirmelli, #5 Exhibit 5 - June 15, 2020, email from Padilla, #6 Exhibit 6 - June 19, 2020, email thread, #7 Exhibit 7 - June 22, 2020, correspondence from Cardwell, #8 Exhibit 8 - March 11, 2020, email thread, #9 Exhibit 9 - March 16, 2020, email thread from McFarland to Busch, #10 Exhibit 10 - May 28, 2020, email thread, #11 Exhibit 11 - July 2, 2020, email thread, #12 Exhibit 12 - July 8, 2020, email thread, #13 Exhibit 13 - July 6, 2020, email thread, #14 Exhibit 14 - July 24, 2020, email thread, #15 Exhibit 15 - July 27, 2020, email thread, #16 Exhibit 16 - July 27, 2020, email thread, #17 Exhibit 17 - August 13, 2020, email thread)(McFarland, M. Thomas) |
| Filing 171 REPLY to Response to #144 MOTION for Summary Judgment and supporting Brief filed by Timothy Day. (Busch, Bryan) |
| Filing 170 REPLY to Response to #142 MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Correspondence to B. Busch)(Cardwell, Christopher) |
| Filing 169 REPLY to Response to #146 MOTION for Partial Summary Judgment filed by NuVasive, Inc.. (Cardwell, Christopher) |
| Filing 168 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #165 Motion for Leave to File Reply to Plaintiff's Response to Motion for Partial Summary Judgment by Timothy Day; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Hourihan, Lisa) |
| Filing 167 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #164 Motion for Leave to File Reply to Defendant's Response to NuVasive's Motion for Partial Summary Judgment by NuVasive, Inc.; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Hourihan, Lisa) |
| Filing 166 NOTICE by NuVasive, Inc. re #163 Reply to Response to Motion Striking Inadvertent Filing (McFarland, M. Thomas) |
| Filing 165 MOTION for Leave to File Reply to Plaintiff's Response to Motion for Partial Summary Judgment by Timothy Day.(Busch, Bryan) |
| Filing 164 MOTION for Leave to File of Court to Reply to Defendant's Response to NuVasive's Motion for Partial Summary Judgment by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - NuVasive's Proposed Reply to Defendant's Response to Motion for Partial Summary Judgment)(Cardwell, Christopher) |
| Filing 163 REPLY to Response to #146 MOTION for Partial Summary Judgment filed by NuVasive, Inc.. (Cardwell, Christopher) |
| Filing 162 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #152 Motion for Leave to File Reply to Defendant's Response and Memorandum of Law in Opposition to Plaintiff's Renewed Motion to Hold Defendant in Contempt of Court by NuVasive, Inc; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Hourihan, Lisa) |
| Filing 161 MOTION to Compel Depositions by Timothy Day. (Attachments: #1 Exhibit MTC Exhibits)(Busch, Bryan) |
| Filing 160 RESPONSE to Motion re #146 MOTION for Partial Summary Judgment and Statement of Undisputed Facts filed by Timothy Day. (Busch, Bryan) |
| Filing 159 RESPONSE to Motion re #146 MOTION for Partial Summary Judgment filed by Timothy Day. (Busch, Bryan) |
| Filing 158 UNREDACTED Statement of Material Facts L.R. 56.1 and Exhibits re #146 MOTION for Partial Summary Judgment filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1, #2 Exihibt 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17)(McKillop, Matthew) |
| Filing 157 UNREDACTED MEMORANDUM in Support re #146 MOTION for Partial Summary Judgment filed by NuVasive, Inc.. (McKillop, Matthew) |
| Filing 156 RESPONSE to Motion re #144 MOTION for Summary Judgment and supporting Brief filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Summary for Rival Medical, #2 Exhibit 2 - Depo of Rival Medical, #3 Exhibit 3 - Rival Medical's Interrogatory Responses, #4 Exhibit 4 - Day's Interrogatory Responses, #5 Exhibit 5 - 2018 Annual Report, #6 Exhibit 6 - Depo of T. Day, #7 Exhibit 7 - Arbitration Demand, #8 Exhibit 8 - Depo of M. Day, #9 Exhibit 9 - March 30, 2019, Email, #10 Exhibit 10 - April 1, 2019, Email, #11 Exhibit 11 - Email chain BIDMC000153)(Cardwell, Christopher) |
| Filing 155 REPLY to Response to #125 MOTION for Sanctions for Spoliation of Evidence filed by NuVasive, Inc.. (Attachments: #1 Exhibit A - July 20, 2020, letter, #2 Exhibit B - Email Chain)(Cardwell, Christopher) |
| Filing 154 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered granting #153 NuVasive, Inc.'s Motion for Leave to File Reply to Timothy Day's Response to NuVasive, Inc.'s Supplemental Memorandum; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (MacDougall, Patricia) |
| Filing 153 MOTION for Leave to File Reply to Timothy Day's Response to NuVasive's Supplemental Memorandum in Support of its Motion for Sanctions for Spoliation of Evidence by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 152 MOTION for Leave to File Reply to Defendant's Response and Memorandum of Law in Opposition to Plaintiff's Renewed Motion to Hold Defendant in Contempt of Court by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 151 RESPONSE to Motion re #125 MOTION for Sanctions for Spoliation of Evidence and supporting Brief filed by Timothy Day. (Busch, Bryan) |
| Filing 150 RESPONSE to Motion re #142 MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court filed by Timothy Day. (Attachments: #1 Exhibit Deposition of T. Day, #2 Affidavit Declaration of Dr. Paul Glazer)(Busch, Bryan) |
| Filing 149 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #145 Motion to Seal Impound Confidential Information in Connection with its Motion for Summary Judgment by NuVasive, Inc. Counsel will receive an email within twenty-four (24) hours of this order with instructions for submitting sealed documents for which leave has been granted in accordance with the Local Rules of the U.S. District Court of Massachusetts. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Hourihan, Lisa) |
| Filing 148 Statement of Material Facts L.R. 56.1 re #146 MOTION for Partial Summary Judgment filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - March 30, 2019, email from Day to McClintock re pending dissolution, #2 Exhibit 2 - April 1, 2019, email from Day to McClintock re last day, #3 Exhibit 3 - Depo of T. Day_Redacted, #4 Exhibit 4 - Depo of Rival Medical, #5 Exhibit 5 - BIDMC000032 - March 31, 2019, email from Day to BIDMC, #6 Exhibit 6 - BIDMC000033 - April 19, 2019, email from Day to BIDMC, #7 Exhibit 7 - BIDMC000619 - May 17-20, 2019, email thread with Day and Boyle, #8 Exhibit 8 - Interrogatory Responses, #9 Exhibit 9 - Depo of J. Burgess, #10 Exhibit 10 - Expert Report of P. Dopp, #11 Exhibit 11 - BIDMC000013 - email re exact comparisons, #12 Exhibit 12 - BIDMC000153 - 155 - May 10, 2019 email thread with Day and Boyle, #13 Exhibit 13 - DEF001840 - May 28, 2019 email, #14 Exhibit 14 - DEF000417-418 - April 24, 2019, email re custom cobbs, #15 Exhibit 15 - DEF000518 - April 26, 2019, email re cobbs, #16 Exhibit 16 - DEF000882 - May 6, 2019, email, #17 Exhibit 17 - DEF002290 - June 26, 2019, email)(Cardwell, Christopher) |
| Filing 147 MEMORANDUM in Support re #146 MOTION for Partial Summary Judgment filed by NuVasive, Inc.. (Cardwell, Christopher) |
| Filing 146 MOTION for Partial Summary Judgment by NuVasive, Inc..(Cardwell, Christopher) |
| Filing 145 MOTION to Seal /Impound Confidential Information in Connection with its Motion for Summary Judgment by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 144 MOTION for Summary Judgment and supporting Brief by Timothy Day. (Attachments: #1 Exhibit, #2 Exhibit)(Busch, Bryan) |
| Filing 143 MEMORANDUM in Support re #142 MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Depo of T. Day, #2 Exhibit 2 - Correspondence from Busch to Cardwell, #3 Exhibit 3 - Email from Miles to Day, #4 Exhibit 4 -Depo of M. Day, #5 Exhibit 5 - Email from Day to Frayne re BOD Dinner Tonight Email, #6 Exhibit 6 - Email from Day to Miles re FWD Presentation 7-25-19 Email with Attachment, #7 Exhibit 7 - Email from Toward to Day re Pleasure to meet you Email, #8 Exhibit 8 -Day's Responses to 4th Set of Interrog., #9 Exhibit 9 - Expense Reports, #10 Exhibit 10 - Depo of A. Richard, #11 Exhibit 11 - Day's Responses to 1st Set of Interrog.)(Cardwell, Christopher) |
| Filing 142 MOTION for Contempt Renewed Motion to Hold Defendant in Contempt of Court by NuVasive, Inc..(Cardwell, Christopher) |
| Filing 141 Supplemental MEMORANDUM in Support re #125 MOTION for Sanctions for Spoliation of Evidence filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - June 29, 2020, letter, #2 Exhibit 2 - Depo of T. Day, #3 Exhibit 3 - Day's Responses to 1st Set of Interrog., #4 Exhibit 4 -Day's Responses to 4th Set of Interrog., #5 Exhibit 5 -Depo of M. Day)(Cardwell, Christopher) |
| Filing 140 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Status Conference held via video on 6/11/2020. Hearing held in open Court. Parties contacted the Court to schedule a hearing regarding discovery. Parties are in the process of scheduling both in-person and virtual depositions. Defendant wants to depose Jeffrey Sullivan in-person in Boston and plaintiff wants the deposition to be done virtually. Court hears from the parties on the issue.Court orders for the deposition to be conducted virtually and for parties to work out how documents will be sent to the witness. (Court Reporter: Kathleen Silva at kathysilva@verizon.net.)(Attorneys present: Michael Batson and M. Thoma McFarland for the plaintiff and Steven Weatherhead and Bryan Busch for defendant) (Belmont, Kellyann) |
| Filing 139 ELECTRONIC NOTICE OF RESCHEDULINGThis hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #www.forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Status Conference set for 6/11/2020 12:00 PM in Courtroom 24 before Magistrate Judge M. Page Kelley. Note: change is to time only! (Belmont, Kellyann) |
| Filing 138 ELECTRONIC NOTICE of Hearing.This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #www.forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Status Conference set for 6/11/2020 11:00 AM in Courtroom 24 before Magistrate Judge M. Page Kelley. (Belmont, Kellyann) |
| Filing 137 Judge Denise J. Casper: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge M. Page Kelley Referred for: Discovery (d). Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 136 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at #http://www.mad.uscourts.gov/attorneys/general-info.htm Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Scalfani, Deborah) |
| Filing 135 Transcript of Motion Hearing by Video (Courtroom and Remote) held on April 23, 2020, before Magistrate Judge M. Page Kelley. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Lee Marzilli at leemarz@aol.com Redaction Request due 6/29/2020. Redacted Transcript Deadline set for 7/9/2020. Release of Transcript Restriction set for 9/8/2020. Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Scalfani, Deborah) |
| Filing 134 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Motion Hearing held via video on 6/1/2020 re #125 MOTION for Sanctions. Court hears argument on motion. Court takes the matter under advisement. (Court Reporter: Sarah Mubarek. For transcript Email: sarahmubarek@comcast.net.)(Attorneys present: Michael Batson, Christopher Cardwell and M. Thomas McFarland for the plaintiff and Steven Weatherhead and Bryan Busch for defendant) (Belmont, Kellyann) |
| Filing 133 ELECTRONIC NOTICE Setting Hearing on Motion #125 MOTION for Sanctions for Spoliation of Evidence : This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #www.forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court 's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Motion Hearing set for 6/1/2020 12:00 PM in Courtroom 24 before Magistrate Judge M. Page Kelley. (Belmont, Kellyann) |
| Filing 132 REPLY to Response to #125 MOTION for Sanctions for Spoliation of Evidence filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Depo of T. Day, #2 Exhibit 2 - July 25, 2019, Email, #3 Exhibit 3 - July 24, 2019, Email from Day to Miles, #4 Exhibit 4 - Email from McGinnis, #5 Exhibit 5 - May 24, 2019, Email, #6 Exhibit 6 - Miles Itinerary Email, #7 Exhibit 7 - July 31, 2019, Email and Picture, #8 Exhibit 8 - R. Clayton's declaration)(McFarland, M. Thomas) |
| Filing 131 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered granting #130 Motion for Leave to File a Reply; Counsel using the Electronic Case Filing System should file the Reply for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures on or before the close of business on May 14, 2020. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (MacDougall, Patricia) |
| Filing 130 MOTION for Leave to File Reply to Timothy Day's Memorandum of Law in Opposition to Plaintiff's Motion for Sanctions for Spoliation of Evidence by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 129 MEMORANDUM of LAW in Opposition re #125 MOTION for Sanctions for Spoliation of Evidence filed by Timothy Day. (Busch, Bryan) Modified on 5/27/2020 (McKillop, Matthew). |
| Filing 128 MANDATE of USCA as to #35 Notice of Appeal filed by Timothy Day. Appeal #35 Terminated (Paine, Matthew) |
| Filing 127 Judge Denise J. Casper: ELECTRONIC ORDER entered. REFERRING MOTION #125 MOTION for Sanctions for Spoliation of Evidence filed by NuVasive, Inc. to Magistrate Judge Kelley(Hourihan, Lisa) Motions referred to M. Page Kelley. |
| Filing 126 MEMORANDUM in Support re #125 MOTION for Sanctions for Spoliation of Evidence filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1_Litigation Hold Letter, #2 Exhibit 2_Cardwell April 3, 2019, Email to Busch and Mills with Response, #3 Exhibit 3_Declaration of D. Delgado, #4 Exhibit 4_Cardwell April 22, 2019, email to Busch, #5 Exhibit 5_Def's Response to RPD, #6 Exhibit 6_Depo of T. Day, #7 Exhibit 7_Day's Response to 2nd Interrog., #8 Exhibit 8_Declaration of R. Clayton, #9 Exhibit 9_Second Declaration of MTM, #10 Exhibit 10_Depo of C. Behrmann, #11 Exhibit 11_Depo of A. Richard, #12 Exhibit 12_January 23, 2020, McFarland and McDonough email thread, #13 Exhibit 13_April 9, 2020, email from McFarland to McDonough, #14 Exhibit 14_April 19, 2019, New Company Email)(McFarland, M. Thomas) |
| Filing 125 MOTION for Sanctions for Spoliation of Evidence by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 124 ELECTRONIC NOTICE Resetting Hearing on Dispositive Motions. Motion Hearing set for 9/30/2020 03:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 123 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #121 Motion for Extension of Time. In light of amended motion, the Court will ALLOW the motion for extension of time and will extend the deadlines for 90 days. Fact discovery to be completed by 7/23/20. Dispositive motion opening briefs to be filed by 7/30/20. Dispositive motion opposing briefs to be filed by 8/21/20. Motions for leave to file reply briefs to be filed by 8/31/20. Hearing on dispositive motions set for 9/30/20 at 3:00PM. (Hourihan, Lisa) |
| Filing 122 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Motion Hearing held via video on 4/23/2020 re #105 MOTION for Protective Order. Hearing held in open court. The court hears argument from the parties and orders that the deposition of Mr. Link shall be conducted by video and shall not last more than 90 minutes. Topics shall be limited to conversations Mr. Link had directly with defendant; conversations Mr. Link had with the two surgeons in question; and any retaliatory actions Mr. Link may have taken after defendant reported alleged misconduct by Mr. Link. The court urges the parties to consider mediation and encourages them to conduct depositions and witness preparation remotely, when possible. (Court Reporter: Lee Marzilli at leemarz@aol.com.)(Attorneys present: Christopher Cardwell, Michael Batson and M. Thomas McFarland for the plaintiff and Steven Weatherhead and Bryan Busch for defendants) (Belmont, Kellyann) |
| Filing 121 Amended MOTION for Extension of Time to Extend Scheduling Order Deadlines per the Court's March 23, 2020, Order (ECF 113) by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 120 ELECTRONIC NOTICE Setting Hearing on Motion #105 MOTION for Protective Order : This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the sessions courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Courts general orders and public notices a vailable on #www.mad.uscourts.gov or contact media@mad.uscourts.gov.Motion Hearing set for 4/23/2020 03:30 PM in Courtroom 24 before Magistrate Judge M. Page Kelley. (Belmont, Kellyann) |
| Filing 119 USCA Judgment as to #35 Notice of Appeal filed by Timothy Day. AFFIRMED... (Paine, Matthew) |
| Filing 118 OPINION of USCA as to #35 Notice of Appeal filed by Timothy Day. (Paine, Matthew) |
| Filing 117 REPLY to Response to #105 MOTION for Protective Order Prohibiting the Deposition of Matthew Link filed by NuVasive, Inc.. (McFarland, M. Thomas) |
| Filing 116 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered granting #114 Motion for Leave to File Reply; Counsel using the Electronic Case Filing System should file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures by April 6, 2020. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (MacDougall, Patricia) |
| Filing 115 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered granting #110 Motion to Seal, no opposition having been filed. (MacDougall, Patricia) |
| Filing 114 MOTION for Leave to File a Reply to Defendant's Response to Motion for Protective Order by NuVasive, Inc..(Cardwell, Christopher) |
| Filing 113 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #112 Motion for Extension of Time. Motion to continue all deadlines (previously extended) DENIED without prejudice. The Court appreciates the impact of the present health crisis, particularly as to litigation and Court matters, many of which are continuing by phone and video conference. With no information about what specific discovery remains in these cases, including what paper discovery is outstanding and which depositions need to be held and whether such can be done remotely by video (and/or Zoom) and/phone, the Court cannot assess at this time if a 4-month continuation of all deadlines in this case is warranted. Counsel are free to confer and renew their motion with additional information and/or a different proposal and do so by April 23, 2020. During this 30-day period, the fact discovery deadline is continued, but the other dates will stay in place for further consideration upon the parties' renewed motion. (Hourihan, Lisa) |
| Filing 112 Joint MOTION for Extension of Time to Extend Scheduling Order Deadlines by NuVasive, Inc..(McFarland, M. Thomas) |
| Filing 111 RESPONSE to Motion re #105 MOTION for Protective Order Prohibiting the Deposition of Matthew Link filed by Timothy Day. (Busch, Bryan) |
| Filing 110 MOTION to Seal Confidential Information and Memorandum in Support by NuVasive, Inc..(Cardwell, Christopher) |
| Filing 109 Document disclosure by Timothy Day.(Busch, Bryan) |
| Filing 107 Judge Denise J. Casper: ELECTRONIC ORDER entered. REFERRING MOTION #105 MOTION for Protective Order Prohibiting the Deposition of Matthew Link filed by NuVasive, Inc. to Magistrate Judge Kelley(Hourihan, Lisa) Motions referred to M. Page Kelley. |
| Filing 106 MEMORANDUM in Support re #105 MOTION for Protective Order Prohibiting the Deposition of Matthew Link filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Declaration of Matthew Link, #2 Exhibit 2 - T. Day's Initial Disclosures, #3 Exhibit 3 - REDACTED Depo Transcript of T. Day, #4 Exhibit 4 - Link & Jackson Deposition Notices, #5 Exhibit 5 - Feb. 19, 2020, email thread, #6 Exhibit 6 - Feb. 17, 2020, email exchange re J. English's deposition, #7 Exhibit 7 - NuVasive's Interrog. Responses)(Cardwell, Christopher) |
| Filing 105 MOTION for Protective Order Prohibiting the Deposition of Matthew Link by NuVasive, Inc..(Cardwell, Christopher) |
| Filing 104 NOTICE by Timothy Day Deposition of Jeff Sullivan (Busch, Bryan) |
| Filing 103 NOTICE by Timothy Day Deposition of John Burgess (Busch, Bryan) |
| Filing 102 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered finding as moot #58 Motion to Quash, defendant's attorney having reported that the matter has been resolved. (MacDougall, Patricia) |
| Filing 101 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #87 Motion for Clarification. Defendant Timothy Day ("Day") has moved for clarification regarding extent of the Preliminary Injunction Order, D. 31, this Court entered on May 29, 2019. D. 87. That Order required Day to comply with the non-solicitation clause of NuVasive's Statement Regarding Proprietary Information, Inventions Assignment, Arbitration, and Restricted Covenants Agreement's ("PIIA").Day argues that his obligations, per the PIIA's express terms, expired on January 3, 2020. D. 87 at 3; D. 80-1 at 7. Plaintiff NuVasive, Inc. ("NuVasive") contends that, pursuant to Section XVIII of the PIIA ("the tolling provision"), this Court at a minimum, should toll Day's restrictive covenant by the amount of time he failed to comply with the PIIA. D. 90 at 56. The tolling provision of the PIIA provides that a failure to comply with the non-solicitation clause will result in the extension of the restrictions by the length of the non-compliance period. D. 80-1 at 12-13.NuVasive seeks an extension of the injunction for, at a minimum, two months until March 3, 2020 based on Day's alleged breach of the PIIA in April 2019 and May 2019. D. 90 at 5, 7. In support of such extension, NuVasive notes that Massachusetts was part of Day's Alphatec sales territory until the injunction was issued on May 29, 2019 and that on various dates in April to May 2019, Day violated the non-solicitation clause of the PIIA by, among other things, meeting with Dr. Paul Glazer, a spine surgeon who operates at Beth Israel Deaconess Medical Center ("BIDMC"), exchanging emails with an BIDMC employee about getting pricing for Alphatec products approved at BIDMC, leaving a handwritten note for one of his former NuVasive surgeon-customers soliciting the surgeon's business and attending, along with other Alphatec employees, a marketing dinner to solicit business from Dr. Glazer. D. 90 at 3-4. Day argues that the terms of the tolling provision are vague and ambiguous and therefore cannot stand under Delaware law to toll the length of the injunction. D. 87 at 4. The tolling provision, however, allows that the temporal term of an employee's restrictive covenants will be extended upon discovery of an employee's non-compliance by the length of the time of the non-compliance. D. 62-1 at 25. This tolling provision is consistent with Delaware law and is neither vague nor ambiguous. See Concord Steel, Inc. v. Wilmington Steel Processing Co., Inc., No. 3369-VCP, 2009 WL 3161643 at *15 (Del. Ch. Sept 30, 2009) (extending duration of non-compete by one year because of breach of covenant); see also Heartland Payments Sys., LLC. v. inTEAM Assocs., LLC, 171 A.3d 544, 547, 570-71 (Del. 2017) (affirming lower court's decision to extend non-compete provision by the length of party's breach).Contrary to Day's argument, the incidents of solicitation in violation of the PIIA in April and May 2019 were not isolated incidents. Instead, the allegation that the Massachusetts territory was a part of Day's Alphatec sales territory until the injunction was issued coupled with the specific allegations of solicitation shows a substantial likelihood of continuing violations during this period, all that is required at the preliminary injunction phase. See Nieves-Marquez v. Puerto Rico, 353 F.3d 108. 120 (1st Cir. 2003) (internal citations omitted); D. 31 at 4 (concluding that NuVasive has shown a reasonable likelihood of success as to its breach of contract claim against Day for violation of the non-solicitation clause of the PIIA). For all of these reasons, the Court clarifies that the preliminary injunction against Day requiring compliance with the non-solicitation provision of the PIIA, D. 87, is in effect until March 3, 2020. (Hourihan, Lisa) |
| Filing 100 Judge Denise J. Casper: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge M. Page Kelley Referred for: Events Only (e). Motions referred: #58 MOTION to Quash. (McKillop, Matthew) Motions referred to M. Page Kelley. |
| Filing 99 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Status Conference held on 1/13/2020; Motion Hearing held on 1/13/2020 re (87 in 1:19-cv-10800-DJC) MOTION for Clarification re (31) Memorandum & ORDER filed by Timothy Day in case 1:19-cv-10800-DJC. Court hears from counsel on the status of discovery and arguments on the motion. Court takes under advisement (87) Motion for Clarification. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Michael Batson and Christopher Cardwell for the plaintiff. Steven Weatherhead and Bryan Busch for the defendants.) Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 98 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered denying #95 Motion to Compel. Defendant has not argued or offered evidence that the proposed witnesses were given "reasonable written notice" of "the time and place of the deposition[s]," Fed. R. Civ. P. 30(b)(1), or that they are subject to subpoenas "commanding [their] attendance at a deposition." Fed. R. Civ. P. 45. "Absent evidence that the witnesses at issue were given reasonable written notices stating the time and place of their depositions, as required by Rule 30(b)(1), or that they failed to comply with subpoenas compelling their attendance, pursuant to Rule 45, the Court has no authority to compel witnesses, including the parties, to attend any depositions which were neither noticed nor for which subpoenas were issued." Pegoraro v. Marrero, 281 F.R.D. 122, 128 (S.D.N.Y. 2012); Huddleston v. Bowling Green Inn of Pensacola, No. 3:19-CV-1545-MCR/MJF, 2019 WL 7046347, at *5 (N.D. Fla. Dec. 18, 2019) ("Before a party can move to compel a deposition, it first must show that it served notice of the deposition on the opposing party and that the opposing party failed to attend"); Leseman, LLC v. Stratasys, Inc., No. 14-CV-363 (SRN/SER), 2016 WL 1117411, at *6 (D. Minn. Mar. 22, 2016) ("It is true... that a court lacks the authority to compel a party to attend a deposition that was not noticed"). (Belmont, Kellyann) |
| Filing 97 RESPONSE to Motion re #95 MOTION to Compel Deposition of Matt Link and Gregory Jackson filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Sept. 23, 2019, email, #2 Exhibit 2 - Oct. 10, 2019, email)(McFarland, M. Thomas) |
| Filing 96 Judge Denise J. Casper: ELECTRONIC ORDER entered. REFERRING MOTION #95 MOTION to Compel Deposition of Matt Link filed by Timothy Day to Magistrate Judge Kelley(Hourihan, Lisa) Motions referred to M. Page Kelley. |
| Filing 95 MOTION to Compel Deposition of Matt Link by Timothy Day. (Attachments: #1 Exhibit Declaration of Timothy Day)(Busch, Bryan) |
| Filing 94 ELECTRONIC NOTICE OF RESCHEDULING Status Conference and hearing on Motion for Clarification set for 1/13/2020 03:30 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 93 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #89 Motion for Hearing (Hourihan, Lisa) |
| Filing 92 ELECTRONIC NOTICE Setting Hearing on Motion for Summary Judgment. Motion Hearing set for 6/24/2020 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 91 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #88 Motion for Extension of Time to Complete Discovery. Fact discovery to be completed by 3/30/20. Dispositive motion opening briefs to be filed by 4/3020. Dispositive motion opposing briefs to be filed by 5/21/20. Motions for leave to file reply briefs (with reply attached) to be filed by 5/31/20. Hearing on Summary Judgment set for 6/24/20 at 2:00PM. NO FURTHER EXTENSIONS ANTICIPATED. (Hourihan, Lisa) |
| Filing 90 RESPONSE to Motion re #89 MOTION for Hearing re #87 MOTION for Clarification re #31 Memorandum & ORDER,, filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Depo Excerpts of T. Day, #2 Exhibit 2 - Email from B. Busch to C. Cardwell, #3 Exhibit 3 - Depo Excerpts of C. Behrmann, #4 Exhibit 4 - Depo Excerpts of D. Odierno)(McFarland, M. Thomas) |
| Filing 89 MOTION for Hearing re #87 MOTION for Clarification re #31 Memorandum & ORDER,, by Timothy Day.(Weatherhead, Steven) |
| Filing 88 Joint MOTION for Extension of Time to 03/30/2020 to extend Scheduling Order deadlines -- JOINT MOTION TO EXTEND SCHEDULING ORDER DEADLINES by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Declaration of M. Thomas McFarland)(McFarland, M. Thomas) |
| Filing 87 MOTION for Clarification re #31 Memorandum & ORDER,, by Timothy Day.(Weatherhead, Steven) |
| Filing 86 Withdrawal of motion: #85 First MOTION Supplemental Relief re #31 Memorandum & ORDER,, From Injunction Order filed by Timothy Day.. (Weatherhead, Steven) |
| Filing 85 First MOTION Supplemental Relief re #31 Memorandum & ORDER,, From Injunction Order by Timothy Day.(Busch, Bryan) |
| Filing 84 AFFIRMATIVE DEFENSES AND ANSWER to #80 Amended Complaint,, by Timothy Day.(Busch, Bryan) |
| Filing 83 Judge Denise J. Casper: ORDER entered. STIPULATION AND ORDER Concerning Confidentiality of Documents and Information (McKillop, Matthew) |
| Filing 82 STIPULATION and Proposed Order Concerning Confidentiality of Documents and Information by NuVasive, Inc.. (McFarland, M. Thomas) |
| Filing 81 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #60 Motion for Contempt. Plaintiff NuVasive, Inc. ("NuVasive") filed this lawsuit against Defendant Timothy Day ("Day") alleging tortious interference (Count I), breach of contract (Count II) and seeking damages and injunctive relief. On April 23, 2019, NuVasive moved for a preliminary injunction against Day, D. 8. On May 29, 2019, the Court allowed that motion in part and denied it in part ("May 29 Order"). D. 31. NuVasive has now moved for contempt, D. 60, alleging that Day has violated the May 29 Order. For the reasons discussed below, the Court DENIES Day's motion, D. 60, without prejudice.In the May 29 Order, the Court ordered Day "to comply with the non-solicitation clause of the NuVasive PIIA with respect to solicitation of NuVasive Customers (as defined by the PIIA)." D. 31 at 18. The agreement's non-solicitation clause provides that the employee agrees not to "solicit, entice, persuade, induce, call upon or provide services to any of the Customers (as defined in Section VII), accounts or clients that I worked with, had responsibility or oversight of, provided services related to, or learned significant information about during my employment (or other association) with the Company for any purpose other than for the benefit of the Company" or to "induce or influence, or seek to induce or influence, any person who is employed or engaged by the Company... with the purpose of obtaining such person as an employee... for a business competitive with the Company." D. 1-1 at 7. The agreement defines "Customer" to include "physicians... who use, order or approve the use or ordering of Company products of services." Id. at 8.Legal Standard. To establish civil contempt, the movant must prove noncompliance with the preliminary injunction order "by clear and convincing evidence." Langton v. Johnston, 928 F.2d 1206, 1220 (1st Cir. 1991). The "clear and convincing" standard is more demanding than a "preponderance of the evidence" standard, see, e.g., N.A.A.C.P. v. Donovan, No. CIV.A.78-850-DPW, 2009 WL 792301, at *10 (D. Mass. Mar. 17, 2009), and requires the movant to "place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are highly probable." Colorado v. New Mexico, 467 U.S. 310, 316 (1984). While an evidentiary hearing may be appropriate in connection with a motion for contempt, NuVasive, the movant here, did not seek same in its moving papers, see generally, D. 60-61, 71, and where, on the present record as discussed below, there are no genuine material issues of fact to resolve, such hearing is not warranted. Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 77 (1st Cir. 2002).Relevant Facts. NuVasive's motion for contempt concerns a July 15, 2019 interaction between Day and Dr. Paul Glazer. D. 61 at 1. Dr. Glazer was a former customer of Day's while Day was affiliated with NuVasive. Id. This encounter occurred at Beth Israel Deaconess Medical Center ("BIDMC") in Boston, and included Day, Dr. Glazer and Colin Behrmann, another former NuVasive sales representative who joined Day at Alphatec. D. 59 at 1; D. 61-1 at 2. Behrmann apparently is the Alphatec representative with responsibility for Dr. Glazer's account during Day's non-solicitation period. D. 61 at 1; see D. 61-1 at 3. Behrmann has testified that Dr. Glazer came down to the BIDMC lobby with a NuVasive [sales] representative, Jeff Solomon. D. 61-1 at 3.Day does not dispute that he met with Dr. Glazer on July 15, 2019. D. 66 at 2. After learning of this meeting, NuVasive's counsel emailed counsel for Day to inquire about same. D. 61-4. In response, Day's counsel sent a signed note indicating that Day had been treated for a finger injury at the Beth Israel facility ("BI") in Milton. D. 61-5; see D. 61-8 (BI Milton letter, dated July 15, 2019, indicating that Day was seen that day by a doctor there); D. 61-9 (BIDMC letter confirming that Day was not seen at BIDMC on July 15, 2019). In Day's opposition to the motion for contempt, D. 66, Day claims that he discussed only his finger injury with Dr. Glazer. D. 66 at 2. (To the extent that NuVasive seeks to strike this September 9, 2019 opposition to the August 26, 2019 motion as untimely, D. 71 at 2, the Court declines to do so). In his affidavit, Dr. Glazer confirms as much and attests that their conversation that day concerned Day's finger injury and recovery, as he had previously referred Day to a hand surgeon, and that Day did not "mention any spine products, or solicit, entice, persuade, induce, influence or request that I purchase, test, or use any Alphatec product/service or to otherwise direct any business to Alphatec." D. 66-1 at ¶¶ 2, 4-5. Although Day has not attested to the substance of their meeting that day, his August 2019 interrogatory response that indicates contact with Dr. Glazer "to drop[ ] off an new business card with new contact information," D. 61-3 at 2, 3, does not contradict Dr. Glazer's affidavit, particularly where Day has not provided a date for such interaction or whether it was before or after the May 29 Order as the interrogatory sought professional contacts after January 1, 2019. D. 61-3 at 1.Day's Alleged Violation of the May 29 Order. Although the Court may rely upon circumstantial evidence in whole or in part to determine if Day violated the May 29 Order, the Court does not conclude at this time that NuVasive has met the requisite clear and convincing evidence standard. Although, based upon the pre-existing professional relationship and their course of conduct therein, it might perhaps, at first blush, a reasonable inference that Day was at BIDMC to meet Dr. Glazer in a professional capacity, particularly where Day's presence at BIDMC that day apparently was not for a medical appointment. It is, however, a less reasonable inference in light of the unrefuted evidence from Dr. Glazer about the substance of his discussion with Day, D. 66-1.Accordingly, the Court DENIES NuVasive's motion for contempt without prejudice. To the extent that NuVasive sought further relief in its motion, such relief is DENIED. To the extent that Day was seeking further relief as articulated by counsel at the hearing on the motion, such relief is also DENIED. (Hourihan, Lisa) |
| Filing 80 AMENDED COMPLAINT against Timothy Day, filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - PIIA, #2 Exhibit 2 - Sales Agreement, #3 Exhibit 3 - Email Exchange between Kirk Tyree and Day, #4 Exhibit 4 - March 30, 2019, email from Day to P. McClintock, #5 Exhibit 5 - April 1, 2019, email from Day to McClintock, #6 Exhibit 6 - April 1, 2019, letter to Day and Rival Medical, #7 Exhibit 7 - April 2, 2019, letter to B. Busch, #8 Exhibit 8 - Press Release, #9 Exhibit 9 - Text message from Behrmann)(Cardwell, Christopher) |
| Filing 79 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #62 Motion to Amend Complaint. Having considered the motion to amend, D. 62, and the opposition, D. 70 and since the Court concludes that the proposed amended complaint, D. 62-1, is consistent with the Court's ruling today regarding the motion to dismiss the original complaint and the proposed amended complaint does not add any additional claims and, therefore, is not futile to amend, the Court ALLOWS the motion to amend. Accordingly, NuVasive has leave to file D. 62-1 and should do so by Friday, October 11. Day will then have until October 25, 2019 to file an answer. (Hourihan, Lisa) |
| Filing 78 Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES IN PART Day's motion to dismiss, Day, D. 40, and DENIES IN PART Richard's motion to dismiss, Richard, D. 27, allowing both only as to the stand-alone claims for injunctive relief, Count III in the Day complaint and Count II in the Richard complaint. Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 77 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 10/8/2019 re #60 MOTION for Contempt filed by NuVasive, Inc. Court notes for counsel that the motions to dismiss are denied as to Mr. Day and Mr. Richard in part, only allowing it as to the freestanding claims for injunctive relief. A Memorandum and Order will issue. Arguments on the motion for contempt. Court takes under advisement #60 Motion for Contempt. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Michael Batson and Christopher Cardwell for the plaintiff. Steven Weatherhead and Bryan Busch for the defendants.) (Hourihan, Lisa) |
| Filing 76 ELECTRONIC NOTICE Setting Hearing on Motion #60 MOTION for Contempt : Motion Hearing set for 10/8/2019 02:15 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 75 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #73 Motion for Oral Argument on Motion for Contempt (Hourihan, Lisa) |
| Filing 74 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #72 Motion for Extension of Time to Complete Discovery. Opening expert disclosures by 12/31/19. Rebuttal expert disclosures by 1/31/20. (Hourihan, Lisa) |
| Filing 73 MOTION for Contempt Request for Oral Argument by Timothy Day.(Weatherhead, Steven) |
| Filing 72 MOTION for Extension of Time to 12/31/19 to Complete Discovery (expert disclosure deadlines) by NuVasive, Inc..(Batson, Michael) |
| Filing 71 REPLY to Response to #60 MOTION for Contempt filed by NuVasive, Inc.. (Attachments: #1 Exhibit A)(Polglase, Holly) |
| Filing 70 RESPONSE to Motion re #62 MOTION to Amend File First Amended Complaint filed by Timothy Day. (Busch, Bryan) |
| Filing 69 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #68 Motion for Leave to File Reply to Defendant's Opposition to Motion to Hold Defendant in Contempt of Court (Unopposed) by NuVasive, Inc.; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Hourihan, Lisa) |
| Filing 68 MOTION for Leave to File Reply to Defendant's Opposition to Motion to Hold Defendant in Contempt of Court (Unopposed) by NuVasive, Inc..(Polglase, Holly) |
| Filing 67 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered finding as moot #53 Limited Objection to Production of Documents, Motion to Quash and/or Motion for Protective Order. Third-party Colin Behrmann has already produced the documents. (MacDougall, Patricia) |
| Filing 66 RESPONSE to Motion re #60 MOTION for Contempt filed by Timothy Day. (Attachments: #1 Affidavit Declaration of Dr. Paul Glazer)(Busch, Bryan) |
| Filing 65 Judge Denise J. Casper: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge M. Page Kelley Referred for: Events Only (e). Motions referred: #53 Third Party MOTION for Protective Order and/or Motion to Quash. (Hourihan, Lisa) Motions referred to M. Page Kelley. |
| Filing 64 Response in Opposition by NuVasive, Inc. re #58 Motion to Quash (Attachments: #1 Exhibit 1 - Declaration of M. Thomas McFarland, #2 Exhibit 2 - Depo Excerpts of C. Behrmann's Deposition)(Cardwell, Christopher) Modified on 1/22/2020 (McKillop, Matthew). |
| Filing 63 MEMORANDUM in Support re #62 MOTION to Amend File First Amended Complaint filed by NuVasive, Inc.. (Cardwell, Christopher) |
| Filing 62 MOTION to Amend File First Amended Complaint by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Amended Complaint)(Cardwell, Christopher) |
| Filing 61 MEMORANDUM in Support re #60 MOTION for Contempt filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10)(Polglase, Holly) |
| Filing 60 MOTION for Contempt by NuVasive, Inc..(Polglase, Holly) |
| Filing 59 Opposition re #53 Third Party MOTION for Protective Order and/or Motion to Quash filed by NuVasive, Inc.. (Attachments: #1 Exhibit 1 - Deposition Subpoena, #2 Exhibit 2 - Email communications re Deposition Subpoena)(McFarland, M. Thomas) |
| Filing 58 Motion to Quash by Timothy Day.(Busch, Bryan) Modified on 1/22/2020 (McKillop, Matthew). |
| Filing 57 NOTICE of Appearance by Mary Taylor Gallagher on behalf of NuVasive, Inc. (Gallagher, Mary) |
| Filing 56 NOTICE of Appearance by M. Thomas McFarland on behalf of NuVasive, Inc. (McFarland, M. Thomas) |
| Filing 55 NOTICE of Appearance by Christopher W. Cardwell on behalf of NuVasive, Inc. (Cardwell, Christopher) |
| Filing 54 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 8/8/2019 re (27 in 1:19-cv-10995-DJC) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Adam Richard, (40 in 1:19-cv-10800-DJC) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Timothy Day in case 1:19-cv-10800-DJC. Arguments. Court takes under advisement (40) Motion to Dismiss for Failure to State a Claim in case 1:19-cv-10800-DJC; takes under advisement (27) Motion to Dismiss for Failure to State a Claim in case 1:19-cv-10995-DJC. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Michael Batson, Christopher Cardwell and Thomas McFarland for the plaintiff. Steven Weatherhead and Bryan Busch for the defendants.) Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 53 Third Party MOTION for Protective Order and/or Motion to Quash by Colin Behrmann.(Busch, Bryan) |
| Filing 52 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #51 Motion for Leave to Appear Pro Hac Vice Added Mary Taylor Gallagher. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McKillop, Matthew) |
| Filing 51 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Mary Taylor Gallagher Filing fee: $ 100, receipt number 0101-7786130 by NuVasive, Inc.. (Attachments: #1 Affidavit Mary Taylor Gallagher)(Batson, Michael) |
| Filing 50 ELECTRONIC NOTICE Setting Hearing on Motion #40 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 8/8/2019 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 49 Opposition re #40 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by NuVasive, Inc.. (Batson, Michael) |
| Filing 48 Disclosure pursuant to Rule 26 by Timothy Day.(Busch, Bryan) |
| Filing 47 NOTICE of Withdrawal of Appearance by Matthew F. Renna (Renna, Matthew) |
| Filing 46 NOTICE of Appearance by Michael C. Kinton on behalf of NuVasive, Inc. (Kinton, Michael) |
| Filing 45 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #44 Motion for Extension of Time to 7/12/19 to File Response to Motion to Dismiss (Hourihan, Lisa) |
| Filing 44 Assented to MOTION for Extension of Time to July 12, 2019 to Respond to Defendant's Motion to Dismiss by NuVasive, Inc..(Polglase, Holly) |
| Filing 43 Judge Denise J. Casper: ELECTRONIC ORDER entered. The Court adopts the joint statements D. 38 in CA 19-10800-DJC and D. 30 in CA 19-10995-DJC. Initial disclosures due by 7/1/19. Amended Pleadings due by 8/30/2019. Opening Expert Reports by 9/30/19. Rebuttal Expert Reports by 10/31/19. All discovery to be completed by 12/31/2019. Summary Judgment Motions to be filed by 1/31/2020. Opposition to be filed by 2/21/20. Reply Briefs to be filed by 3/2/20. Status Conference set for 1/6/2020 02:00 PM in Courtroom 11 before Judge Denise J. Casper.Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 42 ANSWER to #1 Complaint, by Timothy Day.(Weatherhead, Steven) |
| Filing 41 MEMORANDUM in Support re #40 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Timothy Day. (Weatherhead, Steven) |
| Filing 40 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Timothy Day.(Weatherhead, Steven) |
| Filing 39 CERTIFICATION pursuant to Local Rule 16.1 . (Cardwell, Christopher) |
| Filing 38 JOINT STATEMENT re scheduling conference . (Cardwell, Christopher) |
| Filing 37 USCA Case Number 19-1611 for #35 Notice of Appeal filed by Timothy Day. (Paine, Matthew) |
| Filing 36 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re #35 Notice of Appeal. (Paine, Matthew) |
| Filing 35 NOTICE OF APPEAL as to #31 Memorandum & ORDER,, by Timothy Day Filing fee: $ 505, receipt number 0101-7730186 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at #http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at #http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at #http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 7/3/2019. (Weatherhead, Steven) |
| Filing 33 Judge Denise J. Casper: ELECTRONIC ORDER entered denying #28 Motion to Seal NuVasive's Motion to Strike Portions of Day Declaration (Unopposed) by NuVasive, Inc. (Hourihan, Lisa) |
| Filing 32 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #22 Motion for Leave to File Reply; granting #24 Motion for Leave to File Supplemental Declarations; granting #25 Motion for Leave to File Supplemental Declaration nunc pro tunc (Hourihan, Lisa) |
| Filing 34 RECEIPT: Receipt # 1BST074675 for monies received on 05/31/2019 in amount of $5,000.00, re: #31 ORDER entered. MEMORANDUM AND ORDER... (Coppola, Katelyn) |
| Filing 31 Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER. The Court ALLOWS IN PART and DENIES IN PART NuVasive's motion for preliminary injunction against Day, Day, D. 8 (pending the posting of a bond of $5,000 under Fed. R. Civ. P. 65(c) by no later than June 5, 2019) and DENIES NuVasive's motion for preliminary injunction against Richard, Richard, D. 4. Accordingly, the Court ORDERS that Day to comply with the non-solicitation clause of the NuVasive PIIA with respect to solicitation of NuVasive Customers (as defined by the PIIA) pending further Order of this Court.Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC (McKillop, Matthew) |
| Filing 30 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at #http://www.mad.uscourts.gov/attorneys/general-info.htm Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Scalfani, Deborah) |
| Filing 29 Transcript of Motion Hearing held on May 15, 2019, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 6/7/2019. Redacted Transcript Deadline set for 6/17/2019. Release of Transcript Restriction set for 8/15/2019. Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Scalfani, Deborah) |
| Filing 28 MOTION to Seal NuVasive's Motion to Strike Portions of Day Declaration (Unopposed) by NuVasive, Inc..(Polglase, Holly) |
| Filing 27 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 5/15/2019 on Motion for Preliminary Injunction. Arguments. Court takes under advisement (8) Motion for Preliminary Injunction in case 1:19-cv-10800-DJC; and takes under advisement (4) Motion for Preliminary Injunction in case 1:19-cv-10995-DJC. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Christopher Cardwell, M. Thomas McFarland and Holly Polglase for the plaintiff. Steven Weatherhead and Bryan Busch for the defendants.) Associated Cases: 1:19-cv-10800-DJC, 1:19-cv-10995-DJC(Hourihan, Lisa) |
| Filing 26 AFFIDAVIT of Timothy Day re #25 MOTION for Leave to File Supplemental Declaration by Timothy Day. (Weatherhead, Steven) |
| Filing 25 MOTION for Leave to File Supplemental Declaration by Timothy Day.(Weatherhead, Steven) |
| Filing 24 MOTION for Leave to File Supplemental Declarations by NuVasive, Inc.. (Attachments: #1 Exhibit A - C. Ennis 2nd Declaration, #2 Exhibit B - J. MacDermott Declaration)(Cardwell, Christopher) |
| Filing 23 MEMORANDUM in Support re #22 MOTION for Leave to File Reply to T. Day's Memorandum of Law in Opposition to Plaintiff's Motion for Preliminary Injunction filed by NuVasive, Inc.. (Cardwell, Christopher) |
| Filing 22 MOTION for Leave to File Reply to T. Day's Memorandum of Law in Opposition to Plaintiff's Motion for Preliminary Injunction by NuVasive, Inc.. (Attachments: #1 Exhibit A - NuVa's Proposed Reply in Further Support of its MT for Preliminary Injunction, #2 Exhibit 1 - Declaration of C. Ennis, #3 Exhibit 2 - Photograph, #4 Exhibit 3 - 2nd Declaration of J. Hens)(Cardwell, Christopher) |
| Filing 21 Opposition re #8 MOTION for Preliminary Injunction filed by Timothy Day. (Weatherhead, Steven) |
| Filing 20 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #19 Motion for Leave to Appear Pro Hac Vice Added Bryan Busch. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McKillop, Matthew) |
| Filing 19 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Bryan Busch Filing fee: $ 100, receipt number 0101-7672967 by Timothy Day.(Weatherhead, Steven) |
| Filing 18 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #15 , #16 Motions for Leave to Appear Pro Hac Vice Added M. Thomas McFarland, Christopher W. Cardwell. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McKillop, Matthew) |
| Filing 17 WAIVER OF SERVICE Returned Executed by NuVasive, Inc.. Timothy Day waiver sent on 4/23/2019, answer due 6/24/2019. (Renna, Matthew) |
| Filing 16 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Christopher W. Cardwell Filing fee: $ 100, receipt number 0101-7666774 by NuVasive, Inc.. (Attachments: #1 Affidavit - Christopher W. Cardwell)(Batson, Michael) |
| Filing 15 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of M. Thomas McFarland Filing fee: $ 100, receipt number 0101-7666673 by NuVasive, Inc.. (Attachments: #1 Affidavit - M. Thomas McFarland)(Batson, Michael) |
| Filing 14 NOTICE of Appearance by Steven D. Weatherhead on behalf of Timothy Day (Weatherhead, Steven) |
| Filing 13 Judge Denise J. Casper: ELECTRONIC ORDER entered. The Court orders plaintiff to serve D. 11, 12 on the defendant and/or counsel forthwith.(Hourihan, Lisa) |
| Filing 12 ELECTRONIC NOTICE Setting Hearing on Motion #8 MOTION for Preliminary Injunction : Motion Hearing set for 5/15/2019 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 11 Judge Denise J. Casper: ELECTRONIC ORDER entered granting in part and denying in part #10 Motion for hear Short Order Notice on its Motion for Preliminary Injunction by NuVasive, Inc. Noting that the opposition in this case is due 5/7/19, the Court schedules a hearing on 5/15/19 at 2:00PM. (Hourihan, Lisa) |
| Filing 10 MOTION for Order to Short Order Notice on its Motion for Preliminary Injunction by NuVasive, Inc..(Batson, Michael) |
| Filing 9 MEMORANDUM in Support re #8 MOTION for Preliminary Injunction filed by NuVasive, Inc.. (Attachments: #1 Exhibit Exhibits 1-2)(Polglase, Holly) |
| Filing 8 MOTION for Preliminary Injunction by NuVasive, Inc..(Polglase, Holly) |
| Filing 7 NOTICE of Appearance by Holly M. Polglase on behalf of NuVasive, Inc. (Polglase, Holly) |
| Filing 6 NOTICE of Appearance by Matthew F. Renna on behalf of NuVasive, Inc. (Renna, Matthew) |
| Filing 5 Summons Issued as to Timothy Day. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (McDonagh, Christina) |
| Filing 4 ELECTRONIC NOTICE of Case Assignment. Judge Denise J. Casper assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge M. Page Kelley. (Finn, Mary) |
| Filing 3 NOTICE by NuVasive, Inc. re #1 Complaint, Supplemental Civil Cover Sheet (Batson, Michael) |
| Filing 2 CORPORATE DISCLOSURE STATEMENT by NuVasive, Inc.. (Batson, Michael) |
| Filing 1 COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101-7647884 (Fee Status: Filing Fee paid), filed by NuVasive, Inc.. (Attachments: #1 Exhibit Exhibits 1 - 7, #2 Appendix Civil Cover Sheet, #3 Appendix Category Form)(Batson, Michael) |
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