UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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MEDTECH PRODUCTS, INC., 

 Plaintiff, No. 07-CV-3302 (KMK)(LMS) 

 

 -v- ECF Case 

DENTEK ORAL CARE, INC., et al., 

 

 Defendants. 

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RESPONSE BY DEFENDANTS RAY DUANE AND CDS ASSOCIATES, 

INC. TO PLAINTIFF’S OBJECTION TO THE MAGISTRATE 

JUDGE’S REPORT AND RECOMMENDATION, DATED JUNE 2, 2008 

GREENBERG FREEMAN LLP 

24 West 40th Street, 17th Floor 

New York, NY 10018 

(646) 366-0881 

Attorneys for Defendants Ray Duane 

 and CDS Associates, Inc. 

Case 7:07-cv-03302-KMK-LMS Document 162 Filed 07/03/2008 Page 1 of 6
I. INTRODUCTION

 Defendants Ray Duane (“Duane”) and CDS Associates, Inc. (“CDS” and 

collectively, the “Duane Defendants”), submit this response to the objections filed by 

plaintiff Medtech Products, Inc. (“MedTech”) as to the Report and Recommendation of 

Magistrate Judge Lisa M. Smith, dated June 2, 2008 (“R&R”), which granted in part and 

denied in part the Duane Defendants’ motion to dismiss the claims against them in the 

Second Amended Complaint (“SAC”).1

II. ARGUMENT

THIS COURT SHOULD ADOPT THE MAGISTRATE JUDGE’S 

RECOMMENDATION TO DISMISS MEDTECH’S CLAIMS FOR TORTIOUS 

INTERFERENCE WITH CONTRACT, BREACH OF THE PROPRIETARY 

INFORMATION AND INVENTIONS AGREEMENT AND CIVIL CONSPIRACY

 The Duane Defendants adopt the arguments contained in the briefs submitted by 

all defendants to Magistrate Judge Smith on the motion to dismiss, as well as the 

responses to Medtech’s objections (“Medtech Obj.”) filed by defendants DenTek Oral 

Care, Inc. (“DenTek”) and Kelly M. Kaplan (“Kaplan”) as to why this Court should 

adopt the Magistrate Judge’s recommendation to dismiss Medtech’s claims against 

Duane for tortious interference with contract, for breach of the Proprietary Information 

and Inventions Agreement (the “PII Agreement”), and for civil conspiracy against both 

Duane Defendants. Below are additional reasons, unique to the Duane Defendants, why 

this Court should adopt the R&R’s recommendation to dismiss the claims against them 

for tortious interference and breach of the PII Agreement. 

 

1

 Capitalized terms not defined herein shall have the same meaning as in Medtech’s objections. 

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A. Medtech Has Failed To Allege That Duane Intentionally Induced Kaplan To 

Breach Her Contract with Medtech. 

 Medtech objects to the R&R’s recommendation that this Court dismiss its claim 

against Duane for tortious interference with contract, which alleges that Duane 

intentionally induced Kaplan to breach the confidentiality provision in the PII Agreement 

and her General Release. (Medtech Obj. at 2-5.) Medtech’s objection is unfounded. 

 The elements of a claim for tortious interference with contract, which Medtech 

does not contest, are: “(1) the existence of a contract between plaintiff and a third party; 

(2) defendant’s knowledge of the contract; (3) defendant’s intentional inducement of the 

third party to breach or otherwise render performance impossible; and (4) damages to 

plaintiff.” Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94 (1993).2

 Medtech has objected 

to the R&R on the ground that, as to the third element, the Magistrate Judge incorrectly 

held that Medtech was required to allege that Duane used “wrongful means” to procure a 

breach of contract, and that, in fact, Medtech need only allege that Duane employed 

“improper means.” (Medtech Obj. at 4.) For the second time, however, Medtech has 

missed the point and failed to address Duane’s argument.3

 Separate from the question of 

the type and nature of the conduct that Medtech is required to allege, the third element of 

a claim for tortious interference with contract also “requires the plaintiff to establish that 

but for the allegedly tortious conduct of the defendant, the third party would not have 

 

2

 Medtech cites to the formulation contained in the unpublished decision in Cerveceria Modelo, S.A. De 

C.V. v. USPA Accessories LLC, No. 07 Civ. 7998(HB), 2008 WL 1710910 (S.D.N.Y. Apr. 10, 2008) 

(cited in Medtech Obj. at 2, 4), which is substantively the same. 

3

 In its opposition brief submitted to the Magistrate Judge, Medtech’s failed to respond to Duane’s 

argument that the claim for tortious interference should be dismissed for failing to allege “intentional 

inducement” to procure a breach of contract. (See R&R at 28 n.8.) Although the Magistrate Judge sought 

to excuse this omission by observing that Medtech had incorporated the arguments in its brief in opposition 

to the motions by DenTek and Kaplan (id.), that brief did not respond to Duane’s argument or, for that 

matter, even mention Duane with regard to the claim for tortious interference. 

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breached her contract.” Michele Pommier Models, Inc. v. Men Women N.Y. Model 

Mgmt., 14 F. Supp. 2d 331, 335 (S.D.N.Y. 1998) (citing Sharma v. Skaarup Ship 

Management Corp., 916 F.2d 820, 828 (2d Cir. 1990) (“Intentional procurement of a 

breach is an essential element of the tort of interference with contractual relations. A 

plaintiff must allege that there would not have been a breach but for the activities of 

defendants [internal quotes omitted]”); accord Mina Investment Holdings Ltd. v. 

Lefkowitz, 184 F.R.D. 245, 251 (S.D.N.Y. 1999) (cited in Medtech Obj. at 5). 

Medtech’s has failed to allege that, but for Duane’s actions, Kaplan would not have 

disclosed confidential information to DenTek. 

 The only allegations in the SAC that describe Duane’s conduct vis-à-vis Kaplan’s 

employment with DenTek state as follows: 

 133. In or around mid-October, Duane personally . . . called and 

solicited Kaplan to work as a “project leader” on the development of DenTek’s 

dental protector. Duane was personally responsible for recruiting Kaplan to 

DenTek: (a) Duane suggested Kaplan to DenTek; (b) Duane informed DenTek of 

the ways to best induce Kaplan to work for DenTek; and (c) Duane called Kaplan 

and personally recommended DenTek to her. 

* * * 

 156. Not later than late-October or early-November, DenTek and Duane 

were successful in recruiting Kaplan. At that time, Kaplan took over the project 

and continued to work on bringing DenTek’s product to the market. 

(SAC ¶¶ 133, 156.) No where does Medtech allege that Duane induced, encouraged or 

even asked Kaplan to divulge any allegedly confidential and proprietary information to 

DenTek after she was hired. Medtech merely contends that Duane recruited Kaplan to 

work for DenTek, which, as observed by the Magistrate Judge (R&R at 28), Kaplan was 

free to do since none of the contracts she signed with Dental Concepts precluded her 

from working for a competitor. Assuming, for the sake of argument, that Kaplan actually 

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did divulge secret information to DenTek after she began her employment, the SAC does 

not allege that Duane’s actions in recruiting Kaplan caused that to happen. 

B. The Confidentiality Provisions in the Consulting Agreement and the PII 

Agreement Were Superseded by the General Release. 

Medtech also objects to the Magistrate Judge’s recommendation (R&R at 18-21) 

that this Court dismiss the claim against Duane for breach of the confidentiality 

provisions in the Consulting Agreement and the PII Agreement because it was 

superseded by the General Release executed by Duane following the acquisition of 

Dental Concepts by Prestige. (Medtech Obj. 9-12.) This Court should reject Medtech’s 

argument and adopt the Magistrate Judge’s recommendation. 

As stated in the R&R (at 19-20), under New York law, “a subsequent contract 

regarding the same subject matter supersedes the prior contract.” Independent Energy 

Corp. v. Trigen Energy Corp., 944 F. Supp. 1184, 1195-96 (S.D.N.Y. 1996) (applying 

New York law) (citing Bauman v. Millbrook Care Ltd. Partnership, 850 F. Supp. 1227, 

1236 (S.D.N.Y. 1994); accord, CreditSights, Inc. v. Ciasullo, No. 05 CV 9345 (DAB), 

2007 WL 943352 at *6 (S.D.N.Y. Mar. 29, 2007). Even where two contracts do not 

cover entirely the same subject matter, inconsistent provisions in a later contract that 

cover the same subject matter as those in an earlier contract supersede the specific terms 

of the earlier contract. CreditSights, 2007 WL 943352 at *6 (citing Kreiss v. McCown 

De Leeuw & Co., 37 F. Supp. 2d 294 (S.D.N.Y. 1999)). 

 As the Magistrate Judge explained, the confidentiality provisions of the 

Consulting Agreement, the PII Agreement and the General Release all covered the same 

subject matter. (R&R at 20-21.) Based on the foregoing, the Duane cannot be found to 

have breached the confidentiality provisions in the Consulting Agreement and PII 

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Agreement as a matter of law because they were no longer in force and effect when the 

Duane Defendants purportedly took the actions alleged in the SAC. See CreditSights, 

2007 WL 943352 at *6 (to state a claim for breach of contract, the plaintiff must allege 

the existence of a valid contract). 

IV. CONCLUSION

 For the foregoing reasons, as well as those stated in the responses filed by 

DenTek and Kaplan, this Court should adopt the Magistrate Judge’s recommendation to 

dismiss the claims against the Duane Defendants for tortious interference with contract, 

breach of the PII Agreement, and civil conspiracy pursuant to Fed. R. Civ. P. 12(b)(6). 

Dated: New York, New York 

 July 3, 2008 

 Respectfully submitted, 

 GREENBERG FREEMAN LLP 

By: /s/ Michael A. Freeman 

 Michael A. Freeman (MAF-9600) 

24 West 40th Street, 17th Floor 

New York, NY 10018 

(646) 366-0881 

Attorneys for Defendants Ray Duane 

 and CDS Associates, Inc. 

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