Case 2:18-cv-00656-RAJ-DEM Document 235 Filed 10/30/20 Page 1 of 11 Page|D# 5963
`Case 2:18-cv-00656-RAJ-DEM Document 235 Filed 10/30/20 Page 1 of 11 PageID# 5963
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Norfolk Division
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`TRANS-RADIAL SOLUTIONS, LLC,
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`Plaintiff,
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`OCT 3 0 2020
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` FILED
`
`CLERK. “ghggTRlCT COURT
`LK VA
`
`v.
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`CIVIL ACTION NO. 2:18-cv—656
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`BURLINGTON MEDICAL, LLC, et al.,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Plaintiff Trans-Radial Solutions, LLC’s (“TRS” or “Plaintiff’) Motion
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`for Summary Judgment on Liability, Defendants Burlington Medical, LLC, Fox Three Partners,
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`LLC, and Phillips Safety Products, Inc.’s Motion for Summary Judgment, and Defendant John
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`Williams’s Motion for Summary Judgment (the “cross motions”). ECF Nos. 149, 155, 163. The
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`parties’ cross motions were filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. For
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`the reasons stated herein, Plaintiffs Motion for Summary Judgment is DENIED. Defendants
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`Burlington Medical, LLC, F0x Three Partners, LLC, and Phillips Safety Products, Inc.’s Motion for
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`Summary Judgment is GRANTED on Count VI, GRANTED IN PART on Counts VII and XI, and
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`DENIED on all remaining counts. Defendant John Williams’s Motion for Summary Judgment is
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`DENIED.
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`I. FACTUAL & PROCEDURAL HISTORY
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`On December 12, 2018, Plaintiff filed the instant action against four defendants: Burlington
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`Medical, LLC (“Burlington”), John Williams (“Williams”), Fox-3 Partners LLC (“Fox Three”), and
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`Phillips Safety Products, Inc. (“Phillips”) (collectively “Defendants”). See Complaint (“CompL”),
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`

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`ECF No. 1. The Complaint initially alleged thirteen counts; however, the following ten counts
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`remain:
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`Count I:
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`Count 11:
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`Count III:
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`Count IV:
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`Count VI:
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`QM
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`Count VIII:
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`Count X:
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`Count XI:
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`Count XII:
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`Patent Infringement (against Burlington and Phillips)
`Copyright Infringement Reproduction (against Burlington and Phillips)
`Copyright Infringement Marketing and Sale (against Burlington and Phillips)
`Unfair Competition, False Advertising and False Designation of Origin
`Pursuant to 15 U.S.C. § 1125(a) (against all Defendants)
`Common Law Passing Off (against all Defendants)
`Tortious Interference with Prospective Contractual Relations (against all
`Defendants)
`Conversion (against Williams and Burlington)
`Breach of Contract (against Burlington)
`Civil Conspiracy (against all Defendants)
`Misappropriation of Trade Secrets, 18 U.S.C. § 1836 (against Williams,
`Burlington, and Fox Three)
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`Upon completion of discovery,
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`the parties filed their respective motions for summary
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`judgment and accompanying memoranda. See ECF Nos. 149, 155, 163. Each party filed responses
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`to the cross motions for summary judgment. See ECF Nos. 179, 182, 185, 189. Plaintiff and
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`Defendants Burlington, Fox Three, and Phillips then filed replies. See ECF Nos. 194 and 199. While
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`the parties rarely agreed on many of the underlying facts in their cross motions for summary
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`judgment, the undisputed facts relevant to this Memorandum Opinion and Order are as follows:
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`TRS developed two radiation protection products named the Rad-Guard and the Cardio—
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`TRAP. ECF No. 159 at 6, ECF No. 151 at 3.
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`On October 15, 2014, TRS entered into a Non-Exclusive Distributorship Agreement (the
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`“Distribution Agreement”) with Burlington Medical Supplies Inc.
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`(“EMS”)
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`for
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`the
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`distribution of TRS’s Rad-Guard and the Cardio-TRAP. ECF N0. 159 at Ex. 12, ECF N0.
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`151 atEx. 9.
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`o The Distribution Agreement required, among other things, that BMS “agrees not to engage
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`in the distribution[,] promotion, marketing or sale of any goods or products that compete or
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`conflict with Manufacturer’s Products.” Id.
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`0 On December 4, 2014, TRS filed a provisional patent application for the Rad-Guard. ECF
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`No. 159 at 7. The Rad-Guard (i.e. the patent-in-suit) was later issued Patent Number 9,795,
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`346 by the US. Patent and Trademark Office. ECF No. 151 at Ex. 1.
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`0 Burlington was created on April 30, 2015. ECF No. 179 at 6, ECF No. 151 at Ex. 16.
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`Burlington’s owners/stockholders include Defendant Fox Three, Defendant Williams, Fox-
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`Peninsula Holdings Inc., and The Peninsula Fund V Limited LLC. Id.
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`0 The factual evidence is inconclusive as to the relationship between BMS and Burlington.
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`While Defendants argue that Burlington is a new company, separate from BMS and not
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`bound to the Distribution Agreement, ECF No. 179 at 6-7, Plaintiff argues that “[Burlington]
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`is a continuation of [BMS]” and obligated to abide by the terms of the Distribution
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`Agreement, ECF No. 183 at 2. It is undisputed, however, that after Burlington was created,
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`Burlington sold Rad-Guards and Cardio-Traps on behalf of Plaintiff. ECF No. 151 at 10.
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`o
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`In late 2015, Burlington began selling its own radiation protection equipment named the IV
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`Mounted Barrier. ECF No. 159 at 8. Burlington and Burlington’s former chief executive
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`officer, Defendant Williams, worked with Phillips to manufacture and sell the IV Mounted
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`Barrier. ECF No. 151 at 7-8, ECF No. 179 at 7.
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`o
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`In August of 2015, McLaren Bay Regional Hospital (“McLaren Bay”) purchased a Rad—
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`Guard through Burlington. ECF No. 151 at Ex. 1 1. In April of 20 1 7, an employee of McLaren
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`Bay contacted TRS to purchase more Rad-Guards. ECF No. 159 at 31. TRS then referred
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`McLaren Bay back to Burlington to purchase the Rad Guard. ECF No. 151 at Ex. 11.
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`3
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`McLaren Bay ultimately contacted Burlington and purchased two IV Mounted Barriers from
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`Burlington. ECF No. 151 at Ex. 11, ECF N0. 159 at 9-10, ECF No. 159 at Ex. 31. The factual
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`evidence is inconclusive as to how and why McLaren Bay purchased the IV Mounted
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`Barriers instead of the Rad-Guards.
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`0 To promote the IV Mounted Barrier product, Burlington used an advertising template that
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`was the same as, or substantially similar to, the flyer TRS used to market its Rad—Guard. ECF
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`N0. 151 at 11, ECF No. 179 at 7. TRS ’s flyer contained copyrighted photographs of the Rad-
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`Guard. Id. The copyrighted images are associated with Copyright Registration Numbers VAu
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`1-260—031 (the “’013 Registration”) and VA 2-178-713 (the “’713 Registration”). ECF No.
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`151 at 4 and Exs. 5 and 6. The factual evidence is inconclusive as to whether the copyright
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`is valid and whether Burlington copied the copyrighted images when it created its own
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`promotion materials.
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`Plaintiff seeks summary judgment for liability on all ten of the remaining counts in controversy.
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`Likewise, Defendants Burlington, Fox Three, and Phillips seek summary judgment for each of the
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`ten counts, claiming that Plaintiff will be unable meet its burden of proof at trial. Defendant Williams
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`seeks summary judgment for the five remaining counts against him, alleging that Plaintiff has
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`produced insufficient evidence to ‘pierce the corporate veil.’ The parties contend that there are no
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`issues of genuine fact despite clear disagreement on most of the facts in support of each count in
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`controversy. Upon review of the parties’ filings, the Court finds that a hearing is not required, and
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`the parties’ cross motions are now ripe for disposition.
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`

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`II. LEGAL STANDARD
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`Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he Court shall grant summary
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`judgment if the movant shows that there is no genuine dispute as to any material fact and the movant
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`is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a); see also McKinney v. Bd ofTrustees
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`ofMd. Cmty. Coll, 955 F.2d 924, 928 (4th Cir. 1992) (“[S]ummary judgments should be granted in
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`those cases where it is perfectly clear that no issue of fact is involved and inquiry into the fact is not
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`necessary to clarify the application of the law.”) (citations omitted).
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`In deciding a motion for
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`summary judgment, the court must view the facts, and inferences to be drawn from the facts, in the
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`light most favorable to the nonmoving party. Anderson v. Liberty Lobby Inc, 477 U.S. 242, 247-48
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`(1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 587 (1986). When
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`considering cross-motions for summary judgment, the Court “must review each motion separately
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`on its own merits ‘to determine whether either of the parties deserves judgment as a matter of law.
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`Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip Morris,
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`Inc.
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`v.
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`Harshbarger, 122 F.3d 58, 62 n.4 (lst Cir. 1997)).
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`Once a motion for summary judgment is properly made and supported, the opposing party
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`“must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita,
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`475 U.S. at 586-87 (internal quotations omitted). Summary judgment will be granted “against a
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`party who fails to make a showing sufficient to establish the existence of an essential element to that
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`party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
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`477 U.S. 317, 324 (1986). “Genuineness means that the evidence must create fair doubt; wholly
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`speculative assertions will not suffice.” Ross v. Commc ’ns Satellite Corp, 759 F.2d 355, 364 (4th
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`Cir. 1985), abrogated on other grounds by, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) );
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`see also Ash v. United Parcel Serv., Inc, 800 F.2d 409, 411—12 (4th Cir. 1986) (noting that the
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`5
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`nonmoving party must offer more than unsupported speculation to withstand a motion for summary
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`judgment).
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`III. DISCUSSION
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`A. Plaintiff and Defendants Burlington, Fox Three and Phillips’s Cross Motions for
`Summary Judgment
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`Upon review, the Court finds genuine issues of material fact on each claim that Plaintiff
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`raised in its Motion for Summary Judgment. Therefore, Plaintiff is not entitled to summary judgment
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`on any of the ten remaining counts. However, with regard to Defendants’ Motion, the Court will
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`assess whether Plaintiff’s claims for common law passing off (Count VI), tortious interference with
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`prospective contractual relations (Count VII), and civil conspiracy (Count XI) contain sufficient
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`evidence to survive Defendants’ Motion for Summary Judgment. All other counts raised in
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`Defendants’ Motion contain triable issues of fact reserved for the fact finder.
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`3. Count VI - Common Law Passing Off
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`Passing of “occurs when a defendant misrepresents its products as those of the plaintiff. . ..
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`By contrast, ‘reverse passing off”... occurs either (1) ‘when the wrong doer removes the name or
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`trademark on another party's product and sells that product under a name chosen by the wrongdoer,’
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`or (2) ‘when the wrongdoer
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`removes or otherwise obliterates the name of the manufacturer or
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`source and sells the product in an unbranded state.” See Rutledge v. High Point Regional Health
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`System, 558 F. Supp. 2d 611, 620 (M.D. N.C. May 6, 2008) (citations omitted). Plaintiff alleges that
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`Burlington and Phillips “remov[ed] or obliterate[ed] TRS’s trademark from TRS’s copyrighted
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`photographs to create derivative marketing materials.” ECF No. 151 at 29. Therefore, Plaintiff
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`accuses Defendants of reverse passing off rather than passing off.
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`Case law within the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”)
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`supports a finding that a state cause of action for reverse passing off is pre-empted by copyright
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`infringement claims under the Copyright Act. See Fischer v. Viacom Intern. Inc., 115 F.Supp.2d
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`535, 540 (D.Md.2000). “To determine whether a state claim is preempted by the Act, courts must
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`make a two-part inquiry: (1) the work must be within the scope of the subject matter of copyright,
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`and (2) the state law rights must be equivalent to any exclusive rights within the scope of federal
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`copyright.” Id. (citation omitted). In evaluating part one of the inquiry, the scope of copyright
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`infringement encompasses “original works of authorship fixed in any tangible medium of
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`expression” including literary, pictorial, and audiovisual works. 17 U.S.C. § 102(3) (1996).
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`Accordingly, because all of Plaintiff‘s copyright claims involve the alleged infringement of its
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`photographs, and because photographs are pictorial works within the scope of copyright
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`infringement, the first prong of this inquiry is established.
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`“The second prong of the preemption inquiry requires a court to examine the rights a plaintiff
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`claims under state law to determine whether these rights are equivalent to the exclusive rights granted
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`by the Copyright Act.” Fischer, 115 F.Supp.2d at 541. “To avoid preemption, a cause of action
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`defined by state law must
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`incorporate elements beyond those necessary to prove copyright
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`infringement, and must regulate conduct qualitatively different from the conduct governed by federal
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`copyright law.” Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 659 (4th Cir.l993).
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`Upon review, reverse passing off is a common law cause of action with no explicitly defined
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`elements in Virginia jurisprudence.
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`In lieu of inferring the common law elements, when
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`“determin[ing] whether the state law cause of action differs qualitatively from a Copyright Act
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`c1aim,. .. the court has reverted to examining the allegations underlying the state law cause of action.”
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`Rutledge, 558 F. Supp. 2d at 618; see also United States ex rel. Berge v. Bd. of Trustees ofthe Univ.
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`0fAla., 104 F.3d 1453, 1463 (4th Cir.l997); Rosciszewski v. Arete Assocs., Inc.,
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`1 F.3d 225, 229
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`7
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`(4th Cir.1993). Here, the allegations undergirding Plaintiff's reverse passing off claim are one in the
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`same as the copyright claims. In support of Plaintiff’s copyright infringement claims, Plaintiff
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`alleges that “Burlington and Phillips, without the authorization or consent of TRS, constructed and
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`sold IV Mounted Barriers based on TRS’s photographs under the ’031 Registration.” Comp]. 1] 108.
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`Similarly, Plaintiff’s reverse passing off claim alleges that “Defendants have used and are using an
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`infringing product, the IV Mounted Barrier, that is confusingly similar to the Rad—GuardTM Radiation
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`Barrier.” Comp]. 1] 138. Plaintiff uses the same facts to allege the unlawful use of Plaintiff’s product
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`to create Defendants’ product.
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`In further support of this finding, the Rutledge court held that “[w]hen predicated on the facts
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`underlying a claim of copyright infringement, reverse passing off fails to constitute the extra element
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`necessary to avoid preemption by the Copyright Act.” 558 F. Supp. 2d at 621. Plaintiff 5 reverse
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`passing off claim merely duplicates the copyright owner's exclusive rights to reproduce and
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`distribute under 17 U.S.C. § 106(1-3). Therefore, this claim must be dismissed as a matter of law.
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`b. Count VII - Tortious Interference with Prospective Contractual Relations
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`Tortious interference requires satisfaction of the following elements: (1) the existence of a
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`valid contractual relationship or business expectancy;
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`(2) knowledge of the relationship or
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`expectancy on the part of the interfering party; (3) the interfering party’s intentional interference
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`inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant
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`damage to the party whose relationship or expectancy has been disrupted. Chaves v. Johnson, 230
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`Va. 112, 120 (1985). While tortious interference with a business expectancy does not require an
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`established contract, there must be at minimum a specific, prospective business relationship. The
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`accusing party must demonstrate “a probability of future economic benefit” and “a reasonable
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`certainty that absent [Plaintiff's] intentional misconduct, [Defendant] would have
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`realized the
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`8
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`expectancy.” Commercial Bus. Sys, Inc. v. Halifax Corp, 253 Va. 292, 484 S.E.2d 892, 896 ( 1997)
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`(citation omitted).
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`Plaintiff alleges that “TRS had a valid business expectancy with every customer to whom
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`Burlington distributed, marketed, and sold the IV Mounted Barrier.” ECF No. 151 at 32. As a factual
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`matter, the only IV Mounted Barrier purchaser which Plaintiff discusses having a specific business
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`relationship is McLaren Bay. Burlington sold a Rad-Guard to McLaren Bay in 2015. After TRS
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`referred McLaren Bay back to Burlington to purchase more Rad Guards in March of 2017, McLaren
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`Bay ultimately purchased an IV Mounted Barrier. A reasonable construction of the established facts
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`demonstrates that TRS expected Burlington Medical to act as a middleman in the sale of Rad—Guards
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`to McLaren Bay. Whether a business expectancy existed, whether intentional interference occurred,
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`and whether McLaren Bay would have still purchased the Rad Guard absent such interference are
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`factual matters reserved for jury determination.
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`Plaintiff’s remaining business expectancies, however, are unqualified under Virginia law.
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`Plaintiff points to various emails and promotion materials that Burlington used to sell its IV Mounted
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`Barrier as actions taken to tortuously interfere with Plaintiff’s potential customers -— i.e. business
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`expectancies. ECF No. 151 at 31. Plaintiff does not point to any evidence that Plaintiff established
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`any business relationship for the sale of Plaintiff’s own products to the alleged potential customers.
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`“The evidence of an expectancy must establish expectancy by and between two parties at least, based
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`upon something that is a concrete move in that direction.” Moore v. United Int ’1 Investigative Servs. ,
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`209 F. Supp. 2d 611, 619—620 (ED. Va. 2002). Plaintiff has alleged no evidence of any concrete
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`business relationships or expectancies between Plaintiff and the customers to which Burlington sold
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`their IV Mounted Barriers. “[P]roof of subjective expectations will not suffice. .. [T]he proof must
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`establish a ‘probability’ of future economic benefit to a plaintiff. Proof of a ‘possibility’ that such
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`9
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`benefit will accrue is insufficient.” Halifax Corp, 253 Va. at 301. Accordingly, Plaintiff’s tortious
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`interference with a business expectancy claim is limited to the expectancies associated with McLaren
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`Bay only.
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`c. CountXI — Civil Conspiracy
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`There is factual support for TRS’s claim that Defendants were engaged in a civil or statutory
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`conspiracy in furtherance of the unlawful acts associated with various counts in the Complaint.
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`However, a state law cause of action that is not qualitatively different from a plaintiff’s underlying
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`copyright and patent infringement claims are preempted by the Copyright Act. See Tire Engineering
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`and Distribution, LLC v. Shandong Linglong Tire Company, Ltd., 682 F.3d 292, 312-13 (4th Cir.
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`2012); see also Mician v. Catanzaro, 2018 WL 2977398, *6 (E.D.Va. Jun. 13, 2018). In examining
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`this issue, the Fourth Circuit concluded:
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`“[u]nder Virginia law, ‘[t]he gist of the civil action of conspiracy is the damage
`caused by the acts committed in pursuance of the formed conspiracy and not the mere
`combination of two or more persons to accomplish an unlawful purpose or use an
`unlawful means.’. . .. Thus the core of the claim for conspiracy to infringe copyrights
`is identical to that under the Copyright Act, and the extra element of agreement or
`combination does not make it otherwise.”
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`Tire Engineering and Distribution, LLC, 682 F.3d at 312 (citations omitted).
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`Furtherrnore, this Court has indicated, and the United States Court of Appeals for the Federal
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`Circuit agrees, that “there is no statute in the federal laws concerning patents which gives rise to a
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`cause of action for ‘conspiracy.”’ International Rectifier Corp. v. Samsung Electronics Co., Ltd.,
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`361 F.3d 1355, 1361 (Fed. Cir. 2004) (citing Cognitronics Imaging Sys., Inc. v. Recognition
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`Research Inc, 83 F.Supp.2d 689, 699 n. 15 (E.D.Va.2000)). Accordingly, the underlying unlawful
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`act for Plaintiff’s alleged state conspiracy claims cannot be based upon Plaintiff’s federal patent
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`infringement claims (Count I) or federal copyright infringement claims (Counts II and III). The only
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`10
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`remaining claims that Plaintiff may rely upon in furtherance of its civil and statutory conspiracy
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`allegations are Counts IV, VII, VIII, X, and X11.
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`B. Defendant Williams’s Motion for Summary Judgment
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`Defendant Williams’s Motion for Summary Judgment generally addressed several points of
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`factual contention between the parties. Upon review, Williams’s motion sets forth two legal
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`arguments: 1) that Plaintiff is unable to “pierce the corporate veil” as Williams acted on behalf of
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`Burlington in his capacity as the chief executive officer, and 2) that Plaintiff’s calculation for
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`damages are speculative. Williams does not specify which counts these legal arguments are to be
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`applied to; however, the Court recognizes that only five counts remain against Williams: Counts IV,
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`VII, VIII, XI and XII. Upon review, the Court finds a genuine dispute as to the material facts
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`underlying each of the five remaining counts. For these reasons, Defendant Williams’s Motion for
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`Summary Judgment is Denied.
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`IV. CONCLUSION
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`For the foregoing reasons, it is ORDERED that Plaintiff’s Motion for Summary Judgment
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`is DENIED, that Defendants Burlington Medical, LLC, Fox Three Partners, LLC, and Phillips
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`Safety Products, Inc. ’5 Motion for Summary Judgment is GRANTED on Count VI, GRANTED IN
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`PART on Counts VII and XI, DENIED on all remaining counts, and Defendant John Williams’s
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`Motion for Summary Judgment is DENIED.
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`The Court DIRECTS the Clerk to provide a copy of this Memorandum Opinion and Order
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`to counsel of record.
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`IT IS SO ORDERED.
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`,
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`Norfolk, Virginia
`October 30 , 2020
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`Raymondf Jackson
`.
`.
`.
`Umted States District Judge
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`11
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`