The opinion of the court was delivered by: SWEET
The defendant Sydney Reese Coleman ("Dr. Coleman") has moved for summary judgment pursuant to Rule 56, Fed. R. Civ. P., dismissing the first five of eight causes of action set forth in the complaint of plaintiff Cheryl Obedin Rivkin ("Mrs. Rivkin") in this diversity action. Upon the findings and conclusions which follow, summary judgment will be granted dismissing the first, third, and fifth causes of action.
Dr. Coleman filed the instant motion with supporting affidavits, and Mrs. Rivkin has submitted opposing affidavits and memoranda. The motion was argued and marked fully submitted on November 15, 1995.
The undisputed facts derived from Dr. Coleman's 3(g) statement, the complaint and the affidavits are that Dr. Coleman hired Mrs. Rivkin at a salary of $ 27,000 a year in August 1992 as an administrative assistant and office manager for his office, where he practiced plastic and reconstructive surgery. Mrs. Rivkin had been employed in a family business and at the time of hiring was a recent graduate of Mt. Holyoke College and had received an advanced degree in philosophy from Oxford University.
Dr. Coleman has developed a surgical technique which he has termed "lipoinfiltration" and "lipostructure." This technique transplants subcutaneous tissue within a patient's body, removing fat tissue from one part of a the body (e.g., the abdomen or buttock) and injecting it by means of a "cannula," a finely-measured syringe-like instrument, into other areas of the body. Dr. Coleman has a patent application pending for this technique and the cannula.
Part of the duties assigned to Mrs. Rivkin included an effort to locate a manufacturer to produce the cannula in accordance with Dr. Coleman's specifications. Dr. Coleman intended to teach others the technique and the use of the cannula.
Dr. Coleman retained Oleg Rivkin ("Mr. Rivkin"), an attorney and Mrs. Rivkin's husband, to perform various legal services in connection with the cannula project, including the patent application, as well as other matters. In March of 1995, Mr. Rivkin made a trademark application on Dr. Coleman's behalf as owner of the mark "lipostructure."
From July 1994 through August 1995, the effort to locate a manufacturer for the cannula was concentrated on Buxton Biomedical ("Buxton"), a manufacturer. Mrs. Rivkin conducted negotiations with Buxton personnel concerning the terms on which the product would be manufactured, and a prototype was developed. In June, 1995, these negotiations intensified, including consideration of the royalties to be paid by the manufacturer, and a proposal was made to Dr. Coleman based upon discussions with Mrs. Rivkin. Thereafter, the Buxton representative was told that another lawyer was representing Dr. Coleman, and a revised proposal was made by Buxton. On August 7, 1995, Dr. Coleman discharged Mrs. Rivkin.
Beyond these facts are serious areas of contention. According to Mrs. Rivkin, she and Dr. Coleman in November 1995, formed a joint venture to develop the cannula, the gross profits of which were to be divided 20% to her and 80% for him. Mrs. Rivkin contends that at the time of making this agreement Dr. Coleman falsely represented that he intended to perform the agreement. Dr. Coleman disputes the existence of the joint venture and denies making any false representations. It is undisputed that there is no writing codifying the venture.
Mrs. Rivkin claims the name for the techniques was coined by her, that Dr. Coleman fired her upon learning of her pregnancy, and that he failed to return personal property to her and failed to ...