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LEON M. REIMER & CO., P.C. v. CIPOLLA

June 5, 1996

LEON M. REIMER & CO., P.C., Plaintiff,
v.
JOSEPH P. CIPOLLA, JR, Defendant.



The opinion of the court was delivered by: PARKER

 Plaintiff, Leon Reimer & Co., P.C. ("Reimer") brings this diversity action against pro se Defendant, Joseph P. Cipolla, Jr., ("Cipolla") seeking declaratory and injunctive relief and damages arising out of an alleged breach of contract and breach of fiduciary duties. Cipolla moves for summary judgment pursuant to Rule 56 of the Fed.R.Civ.P. For the reasons stated below, the motion is denied in part and granted in part.

 BACKGROUND

 Cipolla, a certified public accountant, worked for Reimer, a Certified Public Accounting firm, from October 7, 1990 through July 15 1994. The present dispute arises from two provisions in Reimer's employment agreement. *fn1" The first,

 Section 3, provides:

 
(b) Employee shall be exempt from paying such amount described in Section 3(a) above if: (i) Employee has obtained Leon Reimer's express written confirmation that Employee was responsible for bringing said client to the Corporation; and (ii) said written confirmation was given to Employee prior to said client becoming a client of the Corporation.

 The second, Section 2, provides in part:

 
Employee will use the Confidential Information only while working for the Corporation and only in connection with his/her duties related thereto and will cease using said information on the day that Employee ceases to work for the corporation. Employee agrees to promptly return all books, records, documents, and property of the Corporation on the Termination Date. Furthermore, such Confidential Information shall at no time be disclosed to any unauthorized person.

 Cohane Rafferty was a client of Reimer, serviced by Cipolla. When Cipolla left Reimer in July, 1994, he told certain of his clients, including Cohane Rafferty, that he was leaving Reimer and joining a new partnership, Cipolla, Burke, Grbelja & Co. ("Cipolla Burke"). Subsequently, certain clients retained Cipolla Burke Cipolla's solicitation and retention of these clients occurred without the knowledge and consent of Reimer. Moreover, before leaving Reimer, Cipolla apparently copied and took with him certain Reimer files generated as a result of its work for Cohane Rafferty. This litigation followed.

 DISCUSSION

 A. Summary Judgment Standard

 Under Rule 56(c) of the Federal Rules of Civil Procedure, a "motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), see also Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). The nonmoving party must meet a burden of coming forward with "specific facts, showing that there is a genuine issue of fact for trial," Fed.R.Civ.P. 56(e) by a showing sufficient to establish the existence of [every] element essential to the party's case, and on, which the party will bear the burden of proof at trial.

 In deciding whether a genuine issue of material fact exists, "the court is required to draw all factual inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). The Court is to inquire whether there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for the party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), however, and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not ...


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