IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ASSISTMED, INC., §

 §

Plaintiff- §

counterdefendant, §

 § Civil Action No. 3:05-CV-0880-D

VS. §

 §

CONCEPTUAL HEALTH SOLUTIONS, §

INC., §

 §

Defendant- §

counterplaintiff, §

 §

and §

 §

MICHAEL FLORIMBI, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

Plaintiff-counterdefendant AssistMed, Inc. (“AssistMed”) moves

for partial reconsideration of the court’s memorandum opinion and

order in AssistMed, Inc. v. Conceptual Health Solutions, Inc., 2006

WL 3691003 (N.D. Tex. Dec. 14, 2006) (Fitzwater, J.). The court

denies the motion, but it withdraws § III(D)(3)(b), see id. at *13,

and substitutes the following.

b

Defendants maintain that they are entitled to summary judgment

dismissing AssistMed’s breach of exclusive license claim because,

inter alia, the License Agreement establishes that AssistMed was

not granted an exclusive license. They point specifically to the

absence of evidence that AssistMed was ever granted an exclusive

 

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license to any SDSP. See Ds. June 30, 2005 Br. 36-38. In support

of this contention, they posit that the clear language of § 3(a) of

the License Agreement provides that “[t]he commencement date for

the exclusive grant for each of the SDSPs shall be the date

[AssistMed] accepts each of the SDSPs.” Id. at 37. Defendants

maintain that because no SDSP was ever developed by the parties or

accepted by AssistMed, the exclusive license provision was never

triggered. AssistMed responds that, by advancing this argument,

defendants have failed to acknowledge that CHS can no longer

satisfy this contingency because it has provided the SDSPs to third

parties, thereby destroying its ability to grant an exclusive

license to AssistMed and breaching the License Agreement.

AssistMed’s argument in response does not demonstrate a basis

to avoid summary judgment on its breach of exclusive license claim,

because it fails to join issue with the ground that defendants

posit. AssistMed does not appear to contest defendants’

fundamental contention that, under the express terms of § 3(a) of

the License Agreement, any exclusive license would have commenced,

if ever, only upon AssistMed’s acceptance of an SDSP. Section 3(a)

states, in pertinent part:

The term of the grant shall independently

commence for each of the SDSPs developed by

CHS. The commencement date for the exclusive

grant for each of the SDSPs shall be the date

[AssistMed] accepts each of the SDSPs.

P. June 30, 2006 App. 12 (emphasis added). Nor does AssistMed

 

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17AssistMed does allege as part of its breach of performance

claim that CHS breached the License Agreement by failing to develop

and deliver the SDSPs to AssistMed. See supra at § III(D)(2)(a).

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appear to dispute that the parties never developed an SDSP, that

AssistMed never accepted an SDSP from CHS, or that § 3(a) of the

License Agreement can reasonably be construed according to its

plain meaning. Instead, AssistMed posits that CHS’s conduct has

rendered impossible its ability to grant an exclusive license to

AssistMed. But it follows from AssistMed’s position that the

exclusive license provision on which it relies never took effect.

This conclusion is further supported by the court’s interpretation

of the objectively plain meaning of § 3(a) of the License

Agreement, which states, in relevant part, that “[t]he commencement

date for the exclusive grant for each of the SDSPs shall be the

date [AssistMed] accepts each of the SDSPs.” Id. (emphasis added).

In short, any claim AssistMed may have against CHS based on its

involvement with JHU cannot be a claim for breach of an exclusive

license, because a reasonable jury could not find that AssistMed

ever obtained an exclusive license. 

If AssistMed has a complaint about CHS’s failure to perform

its obligation to develop an SDSP that would in turn be the subject

of the exclusive license,17 this is a different cause of action than

the breach of exclusive license claim that AssistMed has pleaded

here and that the court now addresses. 

As to LingoLogix, AssistMed has not shown that a reasonable

 

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18Even had the court not granted defendants’ motion on this

claim, it would have denied AssistMed’s motion in this respect. As

noted above, because AssistMed will have the burden of proof on

this claim at trial, to obtain summary judgment it must satisfy the

beyond-peradventure standard. AssistMed cannot meet this high

standard based on the evidence it has adduced.

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jury could find that CHS breached the License Agreement by

attempting unsuccessfully to transfer assets to that entity.

The court therefore concludes that AssistMed’s breach of

exclusive license claim cannot serve as a predicate for its breach

of contract claim, and this component of the claim is dismissed.

The court denies AssistMed’s motion to the extent it seeks summary

judgment establishing that CHS breached the exclusive license

clause of the License Agreement.18

 * * *

AssistMed’s January 18, 2007 motion for reconsideration is

denied. In view of the reasoning set out in amended

§ III(D)(3)(b), the new evidence that AssistMed offers in support

of its motion for reconsideration would not affect the outcome and

need not be considered.

SO ORDERED.

March 26, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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