NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-1178

___________

VIZANT TECHNOLOGIES LLC; 

JOSEPH BIZZARRO

v.

JULIE P. WHITCHURCH; 

*JAMIE DAVIS, individuals,

 Appellants

*Dismissed pursuant to Court’s Order dated 06/29/2016

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-15-cv-00431)

District Judge: Honorable Harvey Bartle III

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 5, 2017

Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

(Opinion filed: January 13, 2017)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Julie Whitchurch appeals from the District Court’s entry of summary judgment 

and a permanent injunction as well as numerous other orders. We will dismiss this 

appeal in part and will otherwise affirm.1

I. 

Whitchurch is a former employee of Vizant Technologies LLC. Following her 

termination, Vizant and its Chief Executive Officer, Joseph Bizzarro, filed suit against 

her. They alleged, among other things, that she breached her employment agreement in 

various respects and created a website falsely accusing Vizant and Bizzarro of fraud and 

mismanagement in order to discourage others from doing business with them.2 Among 

Vizant’s claims were claims for breach of contract, misappropriation of trade secrets, 

defamation, and tortious interference with existing and prospective contractual relations. 

In April 2015, the District Court held a hearing and preliminarily enjoined 

Whitchurch from, inter alia, discouraging others to do business with Vizant. In July 

2015, the District Court found Whitchurch in contempt of the preliminary injunction and 

entered judgment against her for $29,200 in sanctions. 

Both sides later moved for summary judgment. On January 8, 2016, the District 

Court granted Vizant’s motion in part on its claims for breach of contract, defamation, 

misappropriation of trade secrets, and tortious interference. The District Court also 

 

1 Both Whitchurch and Julie Davis were defendants below and both appealed, but we 

granted Davis’s motion to voluntarily dismiss this appeal as to her. Thus, we refer only 

to Whitchurch without suggesting that she was solely responsible for the conduct at issue.

2 We will refer to Vizant and Bizzarro collectively as “Vizant” because our disposition 

does not require us to distinguish between their respective claims.
3

converted the provision of the preliminary injunction noted above into a permanent 

injunction.3 The District Court based the permanent injunction solely on Vizant’s claim 

for tortious interference. The District Court denied Vizant’s motion for summary 

judgment as to certain aspects of its claims and as to damages. Whitchurch then filed the 

notice of appeal at issue here from the entry of summary judgment, the permanent 

injunction, and 24 of the District Court’s other orders. 

Vizant’s remaining claims proceeded to a bench trial, at which Whitchurch failed 

to appear. Following the trial, the District Court awarded Vizant approximately $2.7 

million in damages. Whitchurch appealed from that final judgment at C.A. No. 16-1824. 

Whitchurch, however, did not pay the filing and docketing fees for that appeal or request 

leave to proceed in forma pauperis. The Clerk ultimately dismissed her second appeal for 

that reason. A motions panel of this Court previously denied her requests for relief in 

that regard, and the Court has denied rehearing en banc on that issue.

II.

Vizant has filed a motion to dismiss this appeal for lack of appellate jurisdiction, 

and we begin by addressing that issue. As explained above, only Whitchurch’s appeal 

from the entry of summary judgment, the permanent injunction and various other orders 

remains pending in this Court. The District Court’s entry of partial summary judgment 

was not appealable under 28 U.S.C. § 1291 when entered because the District Court did 

 

3 The permanent injunction provides in relevant part that Whitchurch is “permanently 

enjoined from engaging in any conduct or taking any action whatsoever to cause or to 

discourage any person or entity from doing business, investing in, or maintaining an 

employment or other relationship with Vizant[.]” (ECF No. 214 at 1.) 
4

not decide the issue of damages, but Whitchurch’s appeal from the entry of summary 

judgment has ripened now that the District Court has done so. See DL Res., Inc. v. 

FirstEnergy Sols. Corp., 506 F.3d 209, 216 (3d Cir. 2007) (applying doctrine derived 

from Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983)). Thus, we have 

jurisdiction over the District Court’s entry of summary judgment.4 We also have 

jurisdiction under 28 U.S.C. § 1292(a)(1) to review the permanent injunction. See

Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 819 (3d Cir. 2006).

Whitchurch also appeals from 24 other orders, and we address them in three 

categories. First, Whitchurch appeals from the District Court’s order of April 29, 2015, 

entering a preliminary injunction (ECF No. 60), and the District Court’s order of July 7, 

2015, imposing sanctions for her violation of that injunction (ECF No. 109). The first of 

those orders was immediately appealable under 28 U.S.C. § 1292(a)(1) because it entered 

an injunction, and the second of those orders was immediately appealable under 28 

U.S.C. § 1291 because the District Court directed the entry of final judgment under Fed. 

R. Civ. P. 54(b). As Vizant argues, however, Whitchurch’s notice of appeal was 

untimely as those orders because she filed it on January 26, 2016, which was long after 

the applicable 30-day deadline. See Fed. R. App. P. 4(a)(1)(A); Harris v. City of Phila., 

47 F.3d 1333, 1338 (3d Cir. 1995). Thus, we lack jurisdiction to review these orders.

 

4 This jurisdiction does not extend to the District Court’s subsequent final judgment 

because the Cape May Greene doctrine does not permit an appeal to ripen into an appeal 

from an order entered after the notice of appeal was filed. See Marshall v. Comm’r Pa. 

Dep’t of Corr., 840 F.3d 92, 96 (3d Cir. 2016) (per curiam). Whitchurch recognizes that 

the District Court’s final judgment is not before us. (Appellant’s Br. at 19.)
5

Second, all but one of the remaining orders are interlocutory orders denying 

various motions, including discovery motions, motions for leave to amend, and motions 

for sanctions. These orders are not immediately appealable in and of themselves, though 

they are potentially appealable because our jurisdiction over the permanent injunction 

extends to orders that are “inextricably bound up with the injunction decision.” SEC v. 

Black, 163 F.3d 188, 194 (3d Cir. 1998) (quotation marks omitted). Similarly, we 

conclude that Whitchurch’s appeal from the interlocutory orders has ripened under the 

Cape May Greene doctrine to the extent that they are related to Whitchurch’s nowripened challenge to the entry of summary judgment.5

 Thus, we have jurisdiction to 

review the District Court’s discovery and other interlocutory orders to that extent. Those 

orders include the District Court’s orders regarding discovery and motions to strike as to 

Vizant’s expert and the Facebook friend requests discussed below. (E.g., ECF Nos. 36, 

100, 101, 107, 146, 147.) Those orders do not include orders such as those denying 

Whitchurch’s motions for leave to assert counterclaims and motions to strike Vizant’s 

evidence of damages, which are relevant only to the final judgment.

Finally, Whitchurch appeals the District Court’s order at ECF No. 215, which 

denied her motion at ECF No. 201. Whitchurch captioned that motion as one under Fed. 

 

5 The Cape May Greene doctrine generally does not permit appeals from interlocutory 

orders to ripen upon entry of final judgment. See ADAPT of Phila. v. Phila. Hous. Auth., 

433 F.3d 353, 364-65 (3d Cir. 2006). We do not appear to have addressed whether the 

same is true as to appeals from interlocutory orders that are related to an appeal from an 

entry of partial summary judgment that has ripened and that are mentioned in the same 

notice of appeal. We conclude that review is appropriate under the specific 

circumstances of this case. We do not suggest that review will be appropriate in any 

other.
6

R. Civ. P. 60, and she sought to vacate the judgment of sanctions at ECF No. 109. We 

have jurisdiction to review the denial of Rule 60(b) motions addressed to final judgments, 

see Torres v. Chater, 125 F.3d 166, 167, 169 (3d Cir. 1997), and the judgment of 

sanctions was a final judgment as explained above. 

In sum, we have jurisdiction to review the (1) entry of summary judgment and 

related interlocutory orders, (2) the permanent injunction, and (3) the order at ECF No. 

215 denying Whitchurch’s Rule 60(b) motion. We lack jurisdiction to review the other 

orders from which Whitchurch appeals, and we will dismiss this appeal to that extent.

III.6

Whitchurch raises a plethora of arguments in her brief. Vizant argues that she has 

waived all of them by failing to include the relevant portions of the record in her 

appendix or by failing to identify them in her statement of issues on appeal. We decline 

to deem her arguments waived for those reasons. Many of Whitchurch’s arguments are, 

however, inadequately supported and otherwise fail to raise any meaningful challenge to 

the District Court’s rulings. Nevertheless, we have liberally construed Whitchurch’s pro 

se brief and have identified a number of arguments that we will address. Those 

arguments, and all of Whitchurch’s others, lack merit.

 

6 We exercise plenary review over the entry of summary judgment and the permanent 

injunction to the extent that it was based on the entry of summary judgment, but we 

otherwise review the permanent injunction for abuse of discretion. See Aleynikov v. 

Goldman Sachs Grp., Inc., 765 F.3d 350, 357 n.2 (3d Cir. 2014); Doeblers’ Pa. Hybrids, 

442 F.3d at 819. We review the District Court’s discovery decisions and its denial of 

relief under Rule 60(b) for abuse of discretion as well. See Norris v. Brooks, 794 F.3d 

401, 403 n.1 (3d Cir. 2015) (Rule 60(b)); ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 

268 (3d Cir. 2012) (discovery).
7

A. Interlocutory Orders Related to Summary Judgment

“[A] party challenging the district court’s conduct of discovery procedures bears a 

heavy burden” of showing that the court abused its “considerable discretion.” ZF 

Meritor, LLC, 696 F.3d at 297 (quotation marks omitted). Whitchurch’s discovery-based 

arguments largely fail to acknowledge the District Court’s reasons for its rulings, largely 

fail to raise anything calling them into question, and are based in large part on 

misstatements of the record. 

For example, Whitchurch argues that the District Court denied her due process by 

“denying” her an opportunity to depose Vizant’s expert witness, David Yarnall, who 

testified at the preliminary injunction hearing and whose testimony the District Court 

relied on in entering summary judgment. In fact, however, Whitchurch did not seek to 

depose Yarnall before the preliminary injunction hearing, did not cross-examine him at 

that hearing regarding his qualifications, and never sought an order compelling his 

deposition until after the discovery deadline. (E.g., ECF No. 147.) Whitchurch does not 

acknowledge those circumstances or argue how the District Court abused its discretion in 

light of them, and it did not. Whitchurch argues that the District Court erred in refusing 

to strike Yarnall’s testimony as unreliable, but she raises no meaningful argument on that 

point.

Whitchurch also argues that the District Court erred in disallowing discovery of 

Bizzarro’s wife and minor daughter into Facebook friend requests that Whitchurch denies 

having sent to them. Vizant moved to quash subpoenas that Whitchurch served on 

Bizzarro’s wife and daughter on the ground that they constituted a continuing pattern of 
8

harassment, and the District Court granted that motion. The District Court later denied 

Whitchurch’s motion to compel such discovery on the ground that Whitchurch failed to 

explain its relevance to any claim or defense at issue. (ECF No. 100.) Whitchurch now 

appears to argue that this discovery was relevant to a portion of Vizant’s defamation 

claim because, if she did not send the Facebook requests, then Bizzarro lied by claiming 

that she had and her accusations of fraud were true and not defamatory. Even if that issue 

were of some marginal relevance, however, we cannot say that the District Court erred in 

limiting discovery of Bizzarro’s family members under these circumstances. 

Whitchurch’s specific arguments aside, her brief reads as though the District Court 

denied her any discovery of any kind. That is not the case. The District Court granted at 

least two of her motions to compel discovery, and she took several depositions, including 

Bizzarro’s. Whitchurch also had every opportunity to develop the record at the 

preliminary injunction hearing. We have reviewed Whitchurch’s remaining arguments in 

this regard and conclude that the District Court did not abuse its discretion in its 

discovery and other reviewable interlocutory rulings, largely for the reasons it explained.

B. The Entry of Summary Judgment7

 

7 The District Court properly considered testimony given at the preliminary injunction 

hearing as part of the summary judgment record. See Hancock Indus. v. Schaeffer, 811 

F.2d 225, 230-31 & n.2 (3d Cir. 1987). In doing so, the District Court properly declined 

to rely on its findings at the preliminary injunction stage or to make credibility 

determinations, and it instead properly applied the summary judgment standard. See

Doeblers’ Pa. Hybrids, 442 F.3d at 819-20.
9

In reviewing the District Court’s entry of summary judgment, we focus primarily 

on Vizant’s claims for breach of contract and tortious interference because Whitchurch 

has raised her best-supported arguments at those claims.8

The District Court, applying Delaware law, concluded that Whitchurch breached 

her employment contract and tortiously interfered with Vizant’s existing and prospective 

contractual relations by (among other things) using her website to falsely accuse Vizant 

of fraud and mismanagement and otherwise disparaging it in order to dissuade its 

employees and existing and prospective customers from doing business with Vizant. The 

District Court further concluded that the disparagement adversely affected Vizant’s 

employees and operations, forced Vizant to accept reduced compensation in order to 

obtain Amtrak’s business, and deterred West Capital Management from investing in 

Vizant.

Whitchurch raises essentially four challenges to these rulings. The first three can 

be liberally construed as arguments that Vizant’s evidence was insufficient to satisfy its 

burden on summary judgment. First, Whitchurch argues that the testimony of Aeron 

Sharp regarding the effect of Whitchurch’s website on Vizant’s employees and 

operations was inadmissible because it was based on Sharp’s “information and belief.” 

(Appellant’s Br. at 20.) Whitchurch did not object to Sharp’s testimony or even crossexamine her at the preliminary injunction hearing (N.T. 4/14/15 at 182-94; ECF No. 64), 

 

8 The tortious interference claim is the claim that supported the permanent injunction. 

Whitchurch makes her arguments primarily in connection with the breach of contract 

claim, but she asserts that she raises “the same arguments” as to the tortious interference 

claim. (Appellant’s Br. at 30.)
10

and this challenge otherwise lacks merit. Sharp’s testimony was based on her personal

knowledge and observations. Moreover, Bizzarro testified consistently with Sharp to the 

effect of Whitchurch’s website on Vizant’s employees and operations (N.T. 4/14/15 at 

148; ECF No. 64), and Whitchurch has not challenged that testimony.

Second, Whitchurch argues that a reasonable jury could question whether her 

website forced Vizant to accept reduced compensation from Amtrak. Whitchurch relies 

on Bizzarro’s testimony that Amtrak also was concerned about lawsuits that Vizant had 

filed and that rate reductions were standard. (Appellant’s Br. at 8, 21.) Bizzarro, 

however, squarely testified that Vizant was forced to “drop our rate again” with Amtrak 

in response to Whitchurch’s allegations. (N.T. 4/15/15 at 143; ECF No. 64.) Whitchurch 

asserts that Bizzarro’s testimony “was inconsistent with his deposition testimony,” but 

she does not specify how or cite any evidence in that regard. (Appellant’s Br. at 21.) 

Third, Whitchurch challenges the testimony of Lane Wiggers that West Capital 

Management declined to invest in Vizant because of Whitchurch’s website. (Appellant’s 

Br. at 8-9, 20.) Wiggers squarely testified to that effect. (N.T. 4/14/15 at 48-49; ECF 

No. 63.) Wiggers also testified that he received an e-mail from a principal of West 

Capital Management, and the e-mail (on which the District Court relied) expressly states 

that the company would not do business with Wiggers (and thus Vizant) solely because 

of the accusations contained on Whitchurch’s website. (Id. at 49; ECF No. 8 at 19.) 

Indeed, the e-mail mentions Whitchurch’s website by name. Whitchurch argues that the 

e-mail was sent to Wiggers’s e-mail address at a company other than Vizant, but Wiggers 

testified to his various business relationships involving Vizant, and the e-mail’s reference 
11

to Whitchurch’s website by itself establishes that the e-mail concerned a potential 

investment in Vizant.

Whitchurch also relies on Wigger’s testimony that West Capital Management’s 

investment was only “potential” and that it had not made an actual offer. (N.T. 4/14/15 at 

71-72; ECF No. 63.) A claim of tortious interference with prospective relations, 

however, requires only a “reasonable probability of a business opportunity.” Empire Fin. 

Servs., Inc. v. Bank of N.Y., 900 A.2d 92, 98 n.19 (Del. 2006) (quotation marks omitted). 

Wiggers’s testimony and the e-mail from West Capital Management easily satisfied 

Vizant’s burden on that point, and Whitchurch has not cited any countervailing evidence 

or otherwise raised any meaningful argument on this issue. For the same reason, Vizant 

adequately established an injury in this regard on its breach of contract claim as explained 

by the District Court.9

Finally, Whitchurch appears to argue that Vizant’s tortious interference claim is 

barred by Delaware’s economic loss doctrine because it is duplicative of Vizant’s claim 

for breach of contract.10 In the District Court, however, she argued only that this claim 

 

9

In addition to her record-based arguments addressed to these claims, Whitchurch argues 

that she did not burden Vizant’s relationship with its board of directors and that her 

actions were not a factor in Vizant’s lost opportunity to do business with a company 

called Tacoma Screw. These arguments are irrelevant because the District Court 

expressly declined to grant Vizant’s motion for summary judgment on those points. 

(ECF No. 212 at 39, 54 n.22.)

10 In her brief, Whitchurch asserts without elaboration that this claim is “barred by 

economic loss.” (Appellant’s Br. at 30.) As discussed below, however, Whitchurch 

argues that Vizant’s claim for misappropriation of trade secrets is barred by Delaware’s 

economic loss doctrine. (Id. at 24-25.) Thus, we will assume that she intended to raise 

the same argument regarding Vizant’s claim of tortious interference.
12

was barred by Pennsylvania’s separate “gist of the action” doctrine. She did so even 

though the District Court previously advised her that this claim is governed by Delaware 

and not Pennsylvania law. (ECF No. 59 at 38.) The District Court rejected that argument 

on the grounds that Whitchurch could not rely on Pennsylvania’s gist of the action 

doctrine and that Delaware law does not recognize a doctrine by that name.

Whitchurch does not challenge that conclusion or the District Court’s application 

of Delaware law. Instead, she now invokes Delaware’s economic loss doctrine as to this 

claim for the first time on appeal. She also has not raised any meaningful argument on 

that point by arguing how the doctrine bars Vizant’s claim for tortious interference in 

particular. (Appellant’s Br. at 30.) Whitchurch raises a specific economic-loss argument 

regarding Vizant’s claim for misappropriation of trade secrets, which lacks merit as noted 

in the margin,11 but Vizant’s claim for tortious interference is based on entirely different 

facts. Thus, Whitchurch has not provided any basis to disturb the District Court’s ruling 

on this point.

Whitchurch also raises several record-based arguments addressed to Vizant’s 

claims for misappropriation of trade secrets and defamation. Regarding 

misappropriation, the District Court concluded that Vizant’s “cost reduction reports” 

 

11 The District Court concluded that Delaware courts have not applied the economic loss 

doctrine to most intentional torts, including misappropriation of trade secrets. See

Commw. Constr. Co. v. Endecon, Inc., No. 08C-01-266, 2009 WL 609426, at *4 & n.21 

(Del. Super. Ct. 2009). Whitchurch does not acknowledge that ruling on appeal or cite 

any countervailing authority, and we have located none. Whitchurch also has not argued 

that the same principle does not apply to Vizant’s tortious interference claim, and we do 

not decide that issue, but we note that we have not located any Delaware decision 

applying the economic loss doctrine to a similar claim in a similar context.
13

constitute trade secrets and that Whitchurch misappropriated them by, inter alia, referring 

to them on her website. Whitchurch argues both that Vizant (through Bizzarro’s 

testimony) failed to identify any particular trade secret and that her own testimony 

showed that “the alleged trade secret was generally well known in the relevant industry.” 

(Appellant’s Br. at 23.) 

These arguments are contradictory. In any event, we have reviewed Bizzarro’s 

and Whitchurch’s testimony on this point and conclude both that Vizant adequately 

established the existence of a trade secret for the reasons that the District Court explained 

and that Whitchurch’s testimony did not create a genuine issue of fact. In particular, 

Whitchurch’s testimony did not rebut Bizzarro’s testimony regarding the “method, 

technique or process” underlying Vizant’s preparation of the cost reduction reports. Del. 

Code Ann. tit. 6, § 2001(4).

Regarding defamation, the District Court concluded that Whitchurch defamed 

Vizant and Bizzarro in numerous ways, including by making numerous accusations that 

they were involved in “fraud.” Whitchurch argues that her claims of fraud were true 

because Bizzarro did not disclose the bankruptcies of two prior employers while 

interviewing with Vizant. Even if Whitchurch’s evidence were sufficient to create a 

genuine issue of fact regarding that alleged nondisclosure, however, that alleged 

nondisclosure comes nowhere close to rendering true the numerous allegations of fraud 

detailed in the District Court’s opinion. We have reviewed Whitchurch’s remaining 

arguments addressed to summary judgment and conclude that they do not require 

discussion, largely for the reasons the District Court explained.
14

C. Whitchurch’s Remaining Arguments

Whitchurch argues that the District Court erred for two reason in converting the 

preliminary injunction into a permanent injunction. First, she argues that the District 

Court erred in imposing “a permanent prior restraint against the defendant’s speech.” 

(Appellant’s Br. at 30.) As Vizant argues, Whitchurch waived any First Amendment 

claim in that regard by not raising it below. Whitchurch has not raised any meaningful 

First Amendment argument on appeal in any event. Second, Whitchurch argues that the 

injunction is improper because Vizant has not adequately identified the trade secrets she 

misappropriated. This argument is irrelevant because the permanent injunction was not

based on Vizant’s claim for misappropriation of trade secrets and made no mention of 

trade secrets. In any event, Whitchurch’s arguments on that point lack merit as discussed 

above.

Whitchurch also argues that the District Court erred in denying her Rule 60(b) 

motion addressed to the judgment of sanctions for her violation of the preliminary 

injunction. The District Court denied that motion because Whitchurch merely repeated 

challenges to the underlying injunction that she had raised before. The District Court did 

not abuse its discretion in that regard, particularly because the underlying injunction was 

appealable when entered and Whitchurch could have timely sought review by this Court. 

See Harris, 47 F.3d at 1338. 

The foregoing arguments aside, Whitchurch’s brief contains numerous unfounded 

accusations of judicial bias and misconduct. We have reviewed these arguments, as well 

as all of Whitchurch’s others, and conclude that they lack merit for reasons that do not 
15

require discussion. We note only that the District Court ably discharged its duties in 

managing this litigation, which Whitchurch made unnecessarily difficult by her repetitive 

filings and her repeated refusals to comply with orders of the court.

IV.

For these reasons, appellees’ motion to dismiss this appeal is granted in part, and 

we will dismiss this appeal as to all orders except (1) the order entering summary 

judgment and the interlocutory orders related to that issue, (2) the preliminary injunction, 

and (3) the order at ECF No. 215 denying Whitchurch’s Rule 60(b) motion. We will 

affirm those orders. In light of our partial jurisdiction over this appeal, appellees’ motion 

to sanction Whitchurch for filing an improper appeal is denied. Whitchurch’s motion to 

proceed on the original record is granted to the extent that we have reviewed the original 

record as necessary to decide this appeal. To the extent that the parties’ filings request 

other forms of relief, they are denied.12

 

12 For example, Whitchurch contends in several recent filings that the transcript of the 

preliminary injunction hearing is inaccurate, and she requests that we compare the 

transcript against the audio tapes. Whitchurch has waived this issue by failing to raise it 

in the District Court or in her opening brief on appeal, and she has shown no basis for the 

request in any event. Whitchurch also requests that we stay our review of the merits 

pending a ruling on the parties’ outstanding motions, including her motions relating to the 

original record and her supplemental appendix. Whitchurch’s motion for a stay 

fundamentally misconstrues the nature and effect of previous Clerk’s orders in this case. 

In any event, a stay is not warranted because the Clerk previously granted Whitchurch’s 

request to file a supplemental appendix, we are granting Whitchurch’s request to proceed 

on the original record, and we have considered the parties’ filings in resolving this 

appeal. To the extent that any of Whitchurch’s filings can be construed as motions for 

reconsideration of prior Clerk’s orders, or as requests for any other form of relief, they 

are denied.