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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

ZIMMER, INC., ) 

 ) 

 Plaintiff, ) 

 ) Case No. 3:14-CV-152-JD 

 v. ) 

 ) 

STRYKER CORP., STRYKER ) 

ORTHOPAEDICS, and ) 

CODY STOVALL, ) 

 ) 

 Defendants. ) 

 

 

OPINION AND ORDER 

This matter is a business dispute between two orthopedic medical device manufacturers, 

plaintiff Zimmer, Inc. and defendants Stryker Corporation, Stryker Orthopaedics (collectively, 

“Stryker1”), and former Zimmer sales representative (and present Stryker sales representative) 

Cody Stovall. Zimmer has accused Stryker of poaching Stovall from it, inducing him to breach 

his non-competition, non-solicitation, and confidentiality agreements with Zimmer, and 

implementing a fraudulent plan to get Stovall in operating rooms with Stovall’s former Zimmer 

customers while circumventing his non-competition agreement. The Complaint alleges breach 

of contract against Stovall (Count I), breach of fiduciary duty against Stovall (Count II), unfair 

and deceptive trade practices against Stryker and Stovall (Count III), tortious interference with 

contracts against Stryker (Count IV), tortious interference with contract and business 

relationships against Stryker and Stovall (Count V), and civil conspiracy against all defendants 

																																																								

1

 In its motion to dismiss, Stryker asserts that Stovall is employed by Howmedica Osteonics Corporation, 

of which Stryker Orthopaedics is a d/b/a; and that defendant Stryker Corporation does not employ Stovall 

and therefore has not participated in any of the conduct outlined in Zimmer’s Complaint and is not a 

proper defendant. However, the defendants have not moved to dismiss Stryker Corporation, and the 

Court refers to Stryker Corp. and Stryker Orthopaedics as “Stryker.” 
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(Count VI) [DE 1]. For the reasons below, the motion is GRANTED in part and DENIED in 

part. 

On February 21, 2014, Stovall filed an Answer to the Complaint [DE 21]. Stryker, on the 

other hand, has not filed an Answer, and has moved to dismiss the counts against it instead [DE 

22; DE 252

]. Zimmer responded to the motion on March 6, 2014 [DE 27], and Zimmer replied 

on March 28, 2014 [DE 28]. 

Before delving into the facts of the underlying dispute, a brief review of the short but 

eventful history of this litigation is in order. In addition to seeking damages and requesting a 

jury trial, the Complaint sought a preliminary injunction. On the same day it filed the 

Complaint, Zimmer filed a motion for a preliminary injunction, seeking to enjoin Stovall from 

violating his agreements with Zimmer by working for Stryker [DE 7]. Also on the same day it 

filed its Complaint, Zimmer filed a motion to expedite discovery in advance of the preliminary 

injunction hearing [DE 8]. Following briefing on the motion, on February 11, 2014, the Court 

granted the motion in part and denied it in part, granting Zimmer’s request for expedited 

discovery but limiting the scope of the requests [DE 19]. A hearing on the motion for 

preliminary injunction was set for May 9, 2014, but on April 3, 2014, Zimmer and Stovall moved 

for the entry of an agreed order that would obviate the need for a preliminary injunction hearing 

and withdrew Zimmer’s motion for a preliminary injunction [DE 31]. The Court entered the 

order on April 4, 2014 [DE 7]. 

																																																								

2

 Stryker initially filed a memorandum in support of its motion that mischaracterized the litigation tactics 

between the parties in another case filed in this district [DE 23]. Stryker filed a corrected memorandum a 

week later [DE 25], which the Court addresses below. Zimmer argues that the initially-filed 

memorandum is somehow evidence of underhanded tactics on Stryker’s part [DE 27 at 15-16]. The Court 

finds that the parties’ dealings in other matters are irrelevant to the issues presented in the motion to 

dismiss. 
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I. FACTUAL BACKGROUND 

Zimmer and Stryker are both manufacturers of orthopedic devices that are used in 

medical procedures and compete directly against one another [DE 1 at 1, ¶¶ 1, 12]. To sell its 

products, Zimmer (like other competitors in the field) uses sales representatives that it sends into 

assigned territories to sell its wares to surgeons and hospitals [Id. at ¶ 11]. Zimmer spends 

millions of dollars to train and assist its sales force [Id. at ¶ 18]. Sales representatives are 

responsible for cultivating relationships with customers, providing technical support to surgeons 

and staff during surgeries, and training doctors on how to use Zimmer’s products [Id. at ¶ 13]. In 

doing so, sales representatives have access to doctors that allows them to become acquainted 

with different surgeon’s preferences and ways of doing their jobs, which Zimmer contends is 

information that isn’t available to the public, is of great value to Zimmer, and, if it fell into the 

hands of a competitor, would give the competitor an unfair advantage [Id. at ¶¶ 15-16]. 

In exchange for performing these functions for Zimmer, the sales representatives are 

well-compensated [Id. at ¶ 17]. Stovall’s compensation as a Zimmer sales representative was 

$238,681.43 in 2013 [Id. at ¶ 49]. Sales representatives are also required to sign confidentiality 

and non-competition agreements to protect its relationships, course of dealing, and customer 

goodwill, which Zimmer contends are the result of its investment in its sales force and are assets 

with significant value [Id. at ¶¶ 19-20]. The purpose of the non-disclosure, non-competition, and 

non-solicitation agreements are to permit Zimmer to retain customer relationships when a sales 

representative departs [Id. at ¶ 21]. 

In February 2008, Stovall began working for Zimmer Southwest, a former distributor of 

Zimmer products, assigned to a territory that included Amarillo, Texas, and its surrounding areas 

[Id. at ¶ 22]. He was a part of a unit called Team Brittain, which was led by Zimmer sales 
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representative Carla Brittain [Id. at ¶¶ 22-23]. Stovall was new to the area, and Brittain and 

other Zimmer representatives assigned to the area mentored Stovall and introduced him to their 

contacts and customers [Id. at ¶¶ 24-26]. 

In 2012, Zimmer switched to an in-house sales force, and offered Stovall a position as a 

Zimmer sales representative [Id. at ¶ 28]. He accepted and signed the Zimmer Confidentiality, 

Non-Competition, and Non-Solicitation Agreement for Sales Managers and Representatives on 

September 11, 2012 (“the Agreement”), acknowledging that he would have access to Zimmer’s 

trade secrets and confidential information; participate in the development, execution, and usage 

of Zimmer’s products, technologies, and strategies; receive specialized training from Zimmer; 

and have access to Zimmer’s customers and other business relationships [Id. at ¶¶ 29-30]. 

The Agreement provided that during and after his employment, Stovall would “not 

disclose, transfer, or use (or seek to induce others to disclose, transfer or use) any Confidential 

Information for any purpose” other than for authorized purposes [DE 1 at ¶ 31]. It forbid Stovall 

from engaging, “directly or indirectly, in any activity, employment, or business venture” that 

competed with Zimmer; “deprives or potentially could deprive [Zimmer] of any business 

opportunity;” “conflicts or could potentially conflict with [Zimmer’s] business interests;” or was 

“otherwise detrimental or potentially detrimental to [Zimmer]” [DE 1 at ¶ 32]. The Agreement 

specifically forbid Stovall from even preparing to undertake any of those activities [Id.]. The 

Agreement also provided that for one year following his departure from Zimmer, Stovall would 

be subject to non-competition and non-solicitation covenants that limited the location in which 

he could work, the products he could sell, the customers he could work with, and the capacity in 

which he could work for Zimmer’s competitors [Id. at ¶ 33]. The Agreement specifically forbid 

the solicitation of Zimmer customers, prospective customers, or employees [Id.]. 
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 Zimmer eventually divided the Amarillo territory between Stovall and Brittain, who 

retained some customers with whom she had years-long relationships [Id. at ¶¶ 39-40]. As a 

result, Stovall had exclusive responsibility for a number of Zimmer’s surgeon customers, and he 

provided technical support by being present in surgeries with customers and otherwise interacted 

closely with surgical staff, with assistance from Zimmer [Id. at ¶¶ 42-47]. 

 On January 10, 2014, Stovall resigned from Zimmer [Id. at ¶ 48]. Shortly thereafter, he 

began working for Stryker, a Zimmer direct competitor, as a sales representative, selling a 

Stryker product called RegenKit Platelet-rich plasma spray in his old territory, to his former 

Zimmer customers [Id. at ¶ 50]. According to the Complaint, Stryker and Stovall are using the 

plasma spray – which is not an orthopedic product – as a way for Stovall to circumvent his 

agreement with Zimmer and to call upon his former Zimmer surgeon customers [Id. at ¶¶ 51-52, 

63]. The scheme, which Zimmer describes as a “Trojan Horse” ploy that Stryker has used 

elsewhere, would allow Stovall to get into surgeries that his former Zimmer customers are 

performing so that Stovall can assist Stryker and its orthopedic sales representatives and get his 

former Zimmer customers to switch to Stryker products, in direct violation of Stovall’s Zimmer 

Agreement [Id. at ¶¶ 64-67]. 

Zimmer also contends that Stryker has incentivized Stovall to breach his agreement by 

promising him a large salary and bonuses based on the amount of Zimmer orthopedic implant 

business that he can bring to Stryker – specifically, that Stryker has guaranteed Stovall a $27,000 

per month salary, on top of a $30,000 bonus for every $500,000 of Zimmer business that he 

converts to Stryker [Id. at ¶¶ 53-54]. Stryker, through its employee Lance Cowart, made a 

similar offer to Zimmer employee Brittain, promising an annual salary of $300,000 in exchange 

for working for Stryker, selling the plasma spray [Id. at ¶ 55-56]. 
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 Zimmer alleges that after Stryker offered to pay Stovall to convert Zimmer customers to 

Stryker, Stovall, while still employed by Zimmer, tried to undermine Zimmer by telling his 

customers that he was leaving Zimmer for Stryker because Zimmer couldn’t properly support the 

customers; that he helped Stryker schedule surgeries with Zimmer customers; and that Stovall 

himself participated in the surgeries and attempted to convince surgeons to switch from Zimmer 

to Stryker products [Id. at ¶¶ 57-60]. Additionally, before he resigned from Zimmer, Stovall 

solicited multiple Zimmer sales representatives to join Stryker and to take their Zimmer 

customers with them to Stryker [Id. at ¶ 61]. 

 Zimmer contends that at Stryker, Stovall is serving or will be serving in a capacity where 

he will directly violate his agreement with Zimmer, by virtue of using his relationships with 

Zimmer’s customers and his knowledge of Zimmer’s confidential information, including “sales 

and marketing information, organizational and sales employee information, advertising 

information, confidential pricing information, customer lists and preferences, marketing and 

sales techniques, confidential consumer information, territory sales plans, product development 

and delivery schedules, and product technical information” [Id. at ¶ 62]. Moreover, Zimmer 

contends that Stovall is and will continue to compete for sales and relationships among Zimmer 

customers; be involved with surgeries with Stryker representatives; and sell Stryker’s products 

by taking advantage of his prior relationships with Zimmer customers, in a way that takes 

advantage of his relationships that were built at Zimmer’s expense [Id. at ¶ 68]. 

II. STANDARD OF REVIEW 

 Rule 12(b)(6) authorizes dismissal of a complaint when it fails to set forth a claim upon 

which relief can be granted. In general, when a court considers a Rule 12(b)(6) motion to 

dismiss, courts must inquire whether the complaint satisfies the federal “notice-pleading” 
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standard. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012). 

Notice-pleading requires that a complainant provide a “short and plain statement of the claim 

showing that the pleader is entitled to relief,” which is sufficient to provide “fair notice” of the 

claim and its basis. Id. (citing Fed. R. Civ. P. 8(a)(2)); Maddox v. Love, 655 F.3d 709, 718 (7th 

Cir. 2011) (citations omitted); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 

167 L.Ed.2d 929 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). To determine the sufficiency of a 

claim, the court construes the complaint in the light most favorable to the nonmoving party, 

accepts all well-pleaded facts as true, and draws all inferences in the nonmoving party's favor. 

Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010) (citation omitted). 

The Supreme Court has adopted a two-pronged approach when considering a Rule 

12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 

L.Ed.2d 868 (2009) (citing Twombly). First, pleadings consisting of no more than mere 

conclusions are not entitled to the assumption of truth. Id. This includes legal conclusions 

couched as factual allegations, as well as “[t]hreadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements.” See Iqbal, 556 U.S. at 678 (citing Twombly, 

550 U.S. at 555). Second, if there are well-pleaded factual allegations, courts should “assume 

their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. 

at 679. 

“In Twombly and Iqbal, the Supreme Court held that in order to survive a motion to 

dismiss, a complaint must be plausible on its face, meaning that the plaintiff must have pled 

‘factual content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.’” G&S Holdings LLC v. Continental Cas. Co., 697 F.3d 534, 537 

(7th Cir. 2012) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Twombly, 550 U.S. at 556, 127 
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S.Ct. 1955). “A complaint need not contain detailed factual allegations to meet that standard, but 

must go beyond mere labels and conclusions, and must ‘be enough to raise a right to relief above 

the speculative level.’” G&S Holdings, 697 F.3d at 537 (quoting Twombly, 550 U.S. at 555, 127 

S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Where a complaint pleads facts that are 

‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and 

plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) 

(internal quotation marks omitted). As the Seventh Circuit has explained, 

Iqbal clarified two working principles underlying the Twombly decision. First, 

although the complaint's factual allegations are accepted as true at the pleading 

stage, allegations in the form of legal conclusions are insufficient to survive a 

Rule 12(b)(6) motion. Id. Accordingly, “[t]hreadbare recitals of the elements of 

the cause of action, supported by mere conclusory statements, do not suffice.” Id. 

Second, the plausibility standard calls for a “context-specific” inquiry that 

requires the court “to draw on its judicial experience and common sense.” Id. at 

679, 129 S.Ct. 1937. This is “not akin to a ‘probability requirement,’” but the 

plaintiff must allege “more than a sheer possibility that a defendant has acted 

unlawfully.” Id. at 678, 129 S.Ct. 1937. 

McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012). 

The Court will assess the plaintiff's claims accordingly. 

III. DISCUSSION 

 Stryker has moved to dismiss Count III, Unfair and Deceptive Trade Practices; Count IV, 

Tortious Interference with Contracts; Count V, Tortious Interference with Contract and Business 

Relationships; and Count VI, Civil Conspiracy [DE 22]. The Court will address each of these 

claims below. 
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1. Count IV, Tortious Interference with Contracts 

 In Count IV of its Complaint, Zimmer contends that Stryker and Stovall have tortiously 

interfered with Stovall’s Agreement with Zimmer. Under Indiana law, the elements of tortious 

interference with contract are: 

(1) the existence of a valid and enforceable contract; (2) defendant's knowledge of 

the existence of the contract; (3) defendant's intentional inducement of breach of 

the contract; (4) the absence of justification; and (5) damages resulting from 

defendant's wrongful inducement of the breach. 

G&S Holdings, 697 F.3d at 543 (quoting Melton v. Ousley, 925 N.E.2d 430, 440 (Ind. Ct. App. 

2010)). Here, Stryker claims that Zimmer has failed to set forth sufficient factual allegations to 

support the third and fourth elements – the defendant’s intentional inducement of breach of the 

contract, and the absence of justification [DE 25]. 

 As to the intentional inducement element, Stryker argues that Zimmer’s allegation that 

Stryker intentionally induced Stovall to breach his contract with Zimmer “simply by placing him 

‘in the same territory in which he worked for Zimmer’” is insufficient as a matter of law to rise 

to the level of intentional inducement, because “Stovall would have to work in his same territory 

and provide similar products to his customers in order to breach his Agreement,” and Zimmer’s 

failure to allege that Stryker induced him to do so is fatal [DE 25 at 4, emphasis in original]. 

Stryker also argues that Zimmer’s allegation that it induced Stovall to breach his agreement by 

“incentivizing Stovall to improperly” convert Zimmer customers to Stryker fails, because Stovall 

is selling a Stryker product that Zimmer does not offer, which would not violate the terms of the 

Agreement [DE 25 at 5]. Ergo, Stryker argues, there are no Zimmer customers to convert. The 

import of both of Stryker’s arguments is that because it has hired Stovall to sell the plasma spray 

and not to sell orthopedic devices, there is no harm, no foul, and no breach. 
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 Stryker is correct that there must be an actual breach of a contract for a plaintiff to 

recover on a tortious interference theory. Gatto v. St. Richard School, Inc., 774 N.E.2d 914, 922 

(Ind. Ct. App. 2002) (as a matter of law, there must be a breach of contract for plaintiff to 

proceed on a claim for tortious interference with contract). However, its arguments both fail for 

the simple reason that they overlook huge portions of Zimmer’s Complaint: specifically, the 

portions that describe what Zimmer calls the “Trojan horse” scheme. Even without the 

descriptive title, the upshot of the Complaint is clear: Zimmer alleges that Stryker engages sales 

representatives (including Stovall) who previously worked with its competitors to sell products 

like the plasma spray that its competitors do not produce and that the sales representative has not 

sold before. The plasma spray, however, according to the Complaint, is simply a key that grants 

the sales representative access to the operating room, where the sales representative can rub 

elbows with his or her former employer’s surgeon customers and assist the Stryker orthopedic 

representative with selling Stryker products – using the information he or she gained from his or 

her previous employment. The Complaint, when taken as a whole, is clear that though the new 

Stryker representative may be officially assigned to sell a different product than he or she did at a 

past employer, the sales representative is trying to sell the same product in practice, breaching 

the Agreement. At this stage, Zimmer’s allegations are sufficient to survive a motion to dismiss 

on this basis. 

 Moreover, Stryker’s argument that Stovall has not worked for Stryker at all at this point, 

and therefore could not have breached his agreement, is not sufficient to grant a motion to 

dismiss: Zimmer has specifically alleged that Stovall began sabotaging Zimmer’s relationships 

with its customers, to Stryker’s benefit, before he left Zimmer’s employ, and that he solicited 

Zimmer employees to leave Zimmer – behavior that would be in breach of Stovall’s Agreement. 
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 Second, as to the absence of justification element, Stryker argues that Zimmer’s 

Complaint fails to properly assert that Stryker lacked justification, because it pleads only “the 

conclusory allegation, wholly unsupported by facts, that Stryker’s inducement of Stovall’s 

purported breaches contract [sic] was ‘done without justification.’ (Cmplt., ¶104.)” [DE 25 at 5]. 

Stryker further argues that the “overarching theme of Zimmer’s Complaint, however, is that the 

motivation underlying Stryker’s purported conduct is to gain Zimmer’s (and therefore Stryker’s 

own) business” [DE 25 at 5]. In other words, Stryker argues both that the Complaint lacks 

sufficient detail under Rule 12(b)(6), but also that Zimmer has overpleaded itself out of court. 

Both arguments fail. 

 To properly plead a claim for tortious interference with contract, “[a] plaintiff must state 

more than a mere assertion that the defendant's conduct was unjustified.” Morgan Asset Holding 

Corp. v. CoBank, ACB, 736 N.E.2d 1268, 1272 (Ind. Ct. App. 2000). “One who induces a party 

to a contract to break it, intending to injure another person or to get a benefit for himself, 

commits an actionable wrong unless there is sufficient justification for the interference.” Bragg 

v. City of Muncie, 930 N.E.2d 1144, 1147 (Ind. Ct. App. 2010). In determining whether actions 

were unjustified, the Court may assess a number of factors: “(a) the nature of the defendant's 

conduct; (b) the defendant's motive; (c) the interests of the plaintiff with which the defendant's 

conduct interferes; (d) the interests sought to be advanced by the defendant; (e) the social 

interests in protecting the freedom of action of the defendant and the contractual interests of the 

plaintiff; (f) the proximity or remoteness of the defendant's conduct to the interference; and (g) 

the relations between the parties.” Melton, 925 N.E.2d at 440-41 (citing Restatement (Second) 

of Torts § 767 (1977)). 
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Here, there is no question that Zimmer has alleged more than a bare assertion that 

Stryker’s conduct was unjustified. While Stryker has plucked the words “done without 

justification” from Zimmer’s Complaint, the rest of the Complaint provides more than adequate 

factual support to analyze Stryker’s behavior under the standards laid out in Melton (a task that is 

not suited to a motion to dismiss) and accordingly, this argument is without merit. 

 However, “[t]his element is established only if the interferer acted intentionally, without a 

legitimate business purpose, and the breach is malicious and exclusively directed to the injury 

and damage of another.” Melton, 925 N.E.2d at 446. This, Stryker argues, is fatal to Zimmer’s 

claim, because Zimmer has pled that Stryker was acting with a legitimate business purpose: to 

pick up more business for itself. Accordingly, Stryker argues, Zimmer has pleaded itself out of 

court, for “. . . competition is a legitimate interest that established justification for purposes of a 

tortious interference claim” [DE 25 at 6]. 

 In support of its arguments, Stryker relies heavily on the district court’s opinion in 

Konecranes, Inc. v. Davis, No. 1:12-cv-01700-JMS-MJD, 2013 WL 1566326 (S.D. Ind. Apr. 12, 

2013), in which the court held that the defendants did not tortiously interfere with the plaintiff’s 

contracts. In Konecranes, the plaintiff sued its former employee and a subcontractor that it 

frequently used, who the former employee went to work for. Id. at *1. The former employee 

had signed non-competition and non-disclosure agreements (the court made no mention of a nonsolicitation agreement). Id. After the employee began working for the subcontractor, the 

plaintiff lost two business accounts to the subcontractor, and the plaintiff sued, claiming that the 

former employee was using confidential information to convert the plaintiff’s business to the 

defendant company. Id. The plaintiff raised a tortious interference with contract claim, arguing 

that the defendants “intentionally induced Nucor and SDI to cancel and/or not renew Purchase 
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Orders with Konecranes.” Id. at *2. The defendants moved to dismiss the claim, arguing that the 

plaintiff pleaded itself out of court when it alleged that the defendants had induced the plaintiff’s 

former clients to switch their business to the defendant, because such allegations made it clear 

that the defendants acted with justification – specifically, the justification of getting new business 

for itself. Id. The court agreed, holding that the “allegations regarding their solicitation of 

business for ICS constitutes an acknowledgment by Konecranes that Mr. Davis and ICS were 

motivated at least in part by a legitimate business interest—their own desire to secure new 

customers.” Id. 

In this case, the contract that is at issue in Count IV is Zimmer’s Agreement with Stovall 

– not Zimmer’s contracts with its customers, which was the situation presented in Konecranes

(and, as discussed below, the situation raised in Count V of Zimmer’s Complaint). So the 

question regarding justification is whether Stryker was justified in obtaining Stovall’s services in 

the manner that Zimmer has alleged that it has done so – not, strictly speaking, whether Stryker 

has somehow induced Zimmer’s clients to stop purchasing Zimmer goods and instead to 

purchase Stryker goods (though the Complaint certainly contains allegations to that effect as 

well). That is the only situation Stryker addresses – by way of citation to Konecranes – in its 

memorandum in support of its motion to dismiss Count IV. And here, the Court finds that 

Zimmer has appropriately alleged that Stryker acted without justification in hiring Stovall for the 

explicit purpose of violating his Agreement with Zimmer. 

 Additionally, Konecranes differs from this case because there, the plaintiff alleged only, 

“without any factual support, that ‘[t]here was no justification for [Mr.] Davis and ICS to 

interfere with those contractual relationships,’ . . . and simultaneously allege[d] facts that 

contradict that allegation—specifically, that Mr. Davis and ICS acted so that Konecranes 
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customers would ‘change their crane maintenance provider from Konecranes to ICS.’” Id. at 3. 

In contrast, in this case, Zimmer has pleaded facts supporting its argument that Stryker lacked 

justification, including allegations that Stryker intended to destroy Zimmer’s goodwill with 

customers, its investment in its sales force, and to steal Zimmer’s confidential information. 

While Stryker may be able to present evidence at the summary judgment stage to show that it 

acted with the justification of trying to get business for itself, such a factual inquiry is not 

appropriate for resolution on a motion to dismiss in light of the allegations Zimmer has pleaded 

here. At this juncture, Zimmer’s allegations are sufficient to establish that Zimmer has properly 

pleaded lack of justification. Accordingly, the motion to dismiss Count IV is DENIED. 

2. Count V, Tortious Interference with Contract and Business Relationships 

 Count V, in contrast to Count IV, is pleaded against both Stryker and Stovall and is 

aimed at the defendants’ interference with Zimmer’s business with its customers [DE 27 at 9-10, 

n.1]. Count V asserts two claims in the alternative to one another: tortious interference with 

business relationships, and tortious interference with contracts. “The elements of the two claims 

are the same with the following exceptions: (1) the first does not require a showing of the 

existence of a valid contract; and (2) the second does not require a showing of illegality. Melton, 

925 N.E.2d at 440, n.9 (citing Furno v. Citizens Ins. Co., 590 N.E.2d 1137, 1140 (Ind. Ct. App. 

1992)).3

 

 As to Zimmer’s claim for tortious interference with contract, Stryker argues that Zimmer 

has failed to identify any specific contracts or contractual relationships that have been breached 

as a result of the activity alleged in the Complaint [DE 28 at 6]. Stryker is correct that the 

Complaint is not entirely explicit as to what contracts it contends were breached as a result of 

																																																								

3

 In addition to the arguments specific to this count, Stryker also reasserts its arguments for dismissal 

outlined in Count IV – specifically, that Zimmer improperly alleged intentional interference and the 

absence of justification. The same analysis applies to those arguments in Count V. 
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Stryker’s and Stovall’s actions: the Complaint alleges only that the defendants used the Trojan 

Horse scheme both in the case at bar and “in other parts of the country to Zimmer’s detriment 

and in an effort to contravene and interfere with Zimmer’s valid contracts and long-standing 

business relationships,” and that it has suffered “the loss of its customers, its investment in its 

sales representatives . . . lost revenues, valuable confidential information, and goodwill” [DE 1 at 

111]. The problem, then, is that the Complaint fails to set forth with any factual specificity what 

contracts – if any – that Stryker and Stovall are accused of breaching. There is no allegation that 

sufficiently sets forth the breach of contract that must serve as the basis of a tortious interference 

with contract claim. Accordingly, the motion to dismiss the tortious interference with contract 

claim is GRANTED, and this claim is dismissed without prejudice. 

 In the alternative, however, Zimmer has pleaded a claim for tortious interference with 

business relationships, which does not require the plaintiff to plead the existence of a valid 

contract – instead, it requires only the existence of a business relationship, which Zimmer has 

properly set forth. Stryker does not argue that Zimmer has failed there. As discussed above, 

however, the tort does require the plaintiff to plead illegal conduct, see Melton, 925 N.E.2d at 

440, n.9 (citing Furno, 590 N.E.2d 1137 at 1140), and Stryker argues that Zimmer has failed to 

properly plead any illegal conduct, and instead only pleads that “Stryker and Stovall used 

unlawful means” [DE 28 at 7, citing DE 1 at ¶ 110; DE 27 at 10]. Zimmer responds that it has 

done so4

 by pleading that Stovall and Stryker “used unlawful means to intentionally and 

unjustifiably interfere with Zimmer’s business relationships by soliciting Zimmer’s customers to 

leave Zimmer and move their business to Stryker” [DE 27 at 10, citing DE 1 at ¶ 110]. 

																																																								

4

 Zimmer has also argued that it is not required to establish “unlawful acts” to avoid dismissal of Count V, 

because it has pleaded the tortious interference with business relationships claim in the alternative to a 

tortious interference with contract claim, which does not require allegations of unlawful conduct [DE 27 

at 9, n.1]. This argument fails in light of the Court’s ruling on the motion to dismiss the tortious 

interference with contract claim in Count V. 
16	

 In Indiana, the tort of interference with business relationships “requires some independent 

illegal action.” Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind. 

2003). Though the Indiana courts have not defined “illegality” in this context, see Smith v. 

Biomet, Inc., 384 F. Supp. 2d 1241, 1251-52 (N.D. Ind. 2005) (citing cases), the Seventh Circuit 

has explicitly held that “illegal conduct” as required for a tortious interference claim does not 

require the showing of a criminal act. Syndicate Sales, Inc. v. Hampshire Paper Corp., 192 F.3d 

633, 631 (7th Cir. 1999); see also Meridian Fin. Advisors Ltd. v. Pence, 763 F. Supp. 2d 1046, 

1064 (S.D. Ind. 2011) (“[s]ufficiently ‘wrongful’ conduct, such as a breach of fiduciary duty, can 

satisfy the requirement of independent illegal action”). The Syndicate Sales court found that 

dilution of a trademark could satisfy the “illegal conduct” requirement for a tortious interference 

with business relations claim. Id. Other courts interpreting Indiana law have held the same. 

See, e.g., United States ex. rel. Durcholz v. FKW, Inc., 997 F.Supp. 1143, 1153 (S.D. Ind. 1998) 

(violations of the False Claims Act met “illegality” requirement for a tortious interference with 

business relations claim); Moffett v. Gene B. Glick Co., Inc., 604 F.Supp. 229, 239 (N.D. Ind. 

1984), rev'd on other grounds (invasion of privacy and intentional infliction of emotional distress 

satisfies “illegal conduct” requirement); but see Levee v. Beeching, 729 N.E.2d 215, 222–23 

(Ind. Ct. App. 2000) (defamation not illegal conduct for claims of tortious interference with 

business relations); HAS, Inc. v. Bridgton, Inc., No IP 98–0167–C H/G, 1999 WL 1893209, at 

*16 (S.D. Ind. Sept. 20, 1999) (breach of contract alone is not sufficient illegal conduct for 

tortious interference claim); Biomet, 384 F. Supp. 2d 1241, 1252 (breach of contract not 

sufficient illegal conduct for tortious interference claim). 

 In this case, Zimmer has provided sufficient factual allegations to, at a minimum, 

establish that Stovall breached his fiduciary duty to Zimmer by cancelling surgeries and 
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drumming up business for Stryker while he was still employed by Zimmer. Zimmer has also 

included a claim in its Complaint for breach of fiduciary duty that has not been challenged by 

Stryker (though unsurprisingly, as the claim is raised only against Stovall, and Stryker was not 

named). Though these allegations pertain to Stovall’s fiduciary duties to Zimmer, and Stryker 

itself owed no fiduciary duty to its competitor, at this stage, the allegations that Stryker induced 

Stovall to breach his fiduciary duties to Zimmer, or conspired with Stovall to do so (see below), 

are sufficient to survive a motion to dismiss. 

3. Count III, Unfair and Deceptive Trade Practices 

Count III of the Complaint alleges Unfair and Deceptive Trade Practices against Stryker 

and Stovall. The count does not provide any statutory authority for Zimmer’s claim, and Stryker 

argues in its motion to dismiss that Indiana law does not provide for such a claim [DE 25 at 8]. 

Zimmer argues that Indiana does, in fact, recognize just such a tort [DE 27 at 11-12]. 

“Indiana courts have created a cause of action for unfair competition, defined as ‘the 

attempt to create confusion concerning the source of the unfair competitor's goods.’” Felsher v. 

Univ. of Evansville, 755 N.E.2d 589, 598 (Ind. 2001) (quoting Westward Coach Mfg. Co. v. Ford 

Motor Co., 388 F.2d 627, 633 (7th Cir. 1968), cert. denied, 392 U.S. 927, 88 S.Ct. 2286, 20 

L.Ed.2d 1386 (1968) (citations omitted)); see also Bartholomew Co. Bev. Co., Inc. v. Barco Bev. 

Corp., Inc., 524 N.E.2d 353, 358 (Ind. Ct. App. 1988) (“A valid common law cause of action 

exists for the tort of unfair competition”). “This common law tort was historically considered ‘a 

subspecies of the class of torts known as tortious interference with business or contractual 

relations.’” Felsher, 755 N.E.2d at 598 (citation omitted). In other words, unfair competition 

claims are a particular type of tortious interference claims. Moreover, though “the law of unfair 

competition has been defined as the palming off of ones goods or services as that of some one 
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else . . . the tort of unfair competition is much broader and also includes actions for the 

interference with a contract or business relationship.” Bartholomew Co. Bev., 524 N.E.2d at 358. 

In particular, one of the potential formulations of unfair competition that the Indiana 

Supreme Court has recognized is “. . . a theory of unfair competition [premised upon] . . . acts by 

an employee against an employer following that employment and the use by that employee of 

trade secrets or other confidential information acquired in the course of his employment for his 

benefit or that of a competitor in a manner which is detrimental to his former employer.” 

Woodward Ins. Inc. v. White, 437 N.E.2d 59, 67 (Ind. 1982). Under the formulation outlined in 

Woodward Insurance, “. . . a claim for unfair competition may be brought when the employee 

uses ‘trade secrets or other confidential information acquired in the course of his employment for 

his benefit or that of a competitor in a manner which is detrimental to his former employer.’” 

Meridian Fin. Advisors Ltd. v. Pence, 763 F. Supp. 2d 1046, 1064 (S.D. Ind. 2011). 

This is precisely the situation Zimmer has presented here in its Complaint, where it has 

alleged that Stryker hired Stovall to learn and use Zimmer’s confidential information, in a 

manner that was directly to Zimmer’s detriment – it has alleged that before he left Zimmer’s 

employ, Stovall and Stryker worked together to schedule surgeries for Stryker that Stovall 

participated in and encouraged his Zimmer clients to switch from Zimmer to Stryker [DE 1 at ¶¶ 

57-60]. Zimmer has alleged that Stovall will use his knowledge of Zimmer’s confidential 

information to give Stryker a competitive advantage [DE 1 at ¶ 62]. Accordingly, Zimmer has 

properly pleaded a claim for unfair competition under Indiana law, and the motion to dismiss 

Count III is DENIED. 

 
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4. Count VI, Civil Conspiracy 

Finally, Zimmer has alleged a claim of civil conspiracy against Stovall and Stryker. 

Stryker has moved to dismiss the count on the ground that Indiana courts do not recognize a 

cause of action for civil conspiracy. It is correct: “In Indiana, there is no separate civil cause of 

action for civil conspiracy.” K.M.K. v. A.K., 908 N.E.2d 658, 663 (Ind. Ct. App. 2009). 

However, as Zimmer retorts, “[t]here is a civil cause of action for damages resulting from a 

conspiracy.” Id. The issue, then, is what that exactly means for this lawsuit. 

 “A civil conspiracy is a combination of two or more persons who engage in a concerted 

action to accomplish an unlawful purpose or to accomplish some lawful purpose by unlawful 

means.” Boyle v. Anderson Fire Fighters Ass’n Local 1262, AFL-CIO, 497 N.E.2d 1073, 1079 

(Ind. Ct. App. 1986). Unlike in a criminal conspiracy, the import of a civil conspiracy is not the 

illegal agreement itself – it’s the damages that result from the agreement. Id. “[A]llegations of a 

civil conspiracy are just another way of asserting a concerted action in the commission of a tort.” 

Boyle, 497 N.E.2d at 1079. In other words, a party can’t be found liable simply for participation 

in a civil conspiracy. Rather, if parties are found to have conspired in the commission of another 

tort, the parties are “responsible as a joint tortfeasor for damages caused by the wrongful or 

contemptuous acts regardless of the degree of active participation.” Id. (citation omitted). 

Here, that means that although Zimmer cannot raise a separate claim against Stovall and 

Stryker for civil conspiracy, if it proves a civil conspiracy in the commission of one of the other 

torts it has properly alleged, then Stovall and Stryker would both be responsible in damages for 

the actions of one another. See, e.g., Woodward Ins., 437 N.E.2d at 67 (citing Miller v. Ortman, 

136 N.E.2d 17, 34 (Ind. 1956) (under Indiana law, “[t]he goodwill of a business which includes 

the confidential customer information is a protectable interest by contract or against a conspiracy 
20	

to appropriate it by unlawful acts”)). Accordingly, Stryker is correct that Zimmer cannot lodge a 

claim for civil conspiracy against it, and the motion will be GRANTED on this claim. However, 

the allegations of the Complaint do make it clear that Zimmer has properly alleged the existence 

of a conspiracy in the commission of the other torts raised in its Complaint, relevant then as a 

potential and alternative theory for damages. 

IV. CONCLUSION 

For the foregoing reasons, Stryker’s Motion to Dismiss [DE 22] is GRANTED in part 

and DENIED in part. The Court GRANTS the motion as to the tortious interference with 

contract claim against Stryker only in Count V and Count VI as to both. Count V is 

DISMISSED WITHOUT PREJUDICE and Count VI is DISMISSED WITH PREJUDICE. The 

Court DENIES the motion as to Counts III and IV. Counts I, II, III, IV, and Count V (the 

tortious interference with business relationships claim) remain pending. 

SO ORDERED. 

ENTERED: August 6, 2014 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court 

.