United States, et al v. Cytogel Pharma, LLC, No. 2:2016cv13987 - Document 395 (E.D. La. 2018)

Court Description: ORDER AND REASONS re 271 MOTION for Partial Summary Judgment of Cytogel's Second Amended and Restated Counterclaims (Doc. 220) Counts 8, 10, 11, 12, and 13 for Failing to Bring Them within the Prescription or Peremption Periods and 279 MOTIO N for Summary Judgment as to Cytogel's Second Amended and Restated Counterclaims (Doc. 220) Counts 5-13 for Failure to Establish an Essential Element of Each Claim - For the reasons herein, IT IS ORDERED that Plaintiff the Administrators of th e Tulane Educational Fund is entitled to judgment in its favor and against Defendant Cytogel Pharma, LLC, on Counts 9 and 11-13 of Defendant's Second Amended and Restated Counterclaims. Counterclaim-Defendant Dr. James E. Zadina is entitled to judgment in his favor and against Cytogel Pharma, LLC, on Count 12 of Defendant's Second Amended and Restated Counterclaims. IT IS FURTHER ORDERED that the 74 Motion to Dismiss Counts 8 and 10-13 of Defendant Cytogel Pharma, LLC's First Amended Counterclaims on Prescription Grounds, filed by the Administrators of the Tulane Educational Fund and Dr. Zadina, be and hereby is DENIED as to Counts 8 and 10 of Defendant's Second Amended and Restated Counterclaims and DENIED AS MOOT a s to Counts 11-13 of Defendant's Second Amended and Restated Counterclaims. IT IS FURTHER ORDERED that the 75 Motion to Dismiss Cytogel's First Amended Counterclaims, filed by Tulane and Dr. Zadina pursuant to Rule 12(b)(6)223 of the Fed eral Rules of Civil Procedure, in which the United States joins, be and hereby is DENIED IN PART AS MOOT as to Counts 5-8, Count 9 as against the Administrators of the Tulane Educational Fund, and Counts 10-13. IT IS FURTHER ORDERED that the 301 Motion to Dismiss Counts 1, 8, 9, and 14 of Cytogel's First Amended Counterclaims, filed by the United States, be and hereby is DENIED IN PART AS MOOT as to Count 8. Signed by Judge Susie Morgan. (bwn)

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United States, et al v. Cytogel Pharma, LLC Doc. 395 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A TH E U N ITED S TATES an d TH E AD MIN ISTRATORS OF TH E TU LAN E ED U CATION AL FU N D , Plain tiffs CIVIL D OCKET VERSU S N O. 16 -13 9 8 7 CYTOGEL PH ARMA, LLC, D e fe n d an t SECTION : “E” ORD ER AN D REAS ON S Before the Court are a Motion for Partial Summ ary J udgm ent as to Counts 5– 13 of Cytogel Pharm a LLC’s (“Cytogel”) Second Am ended an d Restated Counterclaim s for Failure to Establish an Essential Elem ent of Each Claim 1 and a Motion for Partial Sum m ary J udgm ent on Counts 8 and 10 – 13 of Cytogel’s Second Am ended and Restated Counterclaim s on perem ption and prescription grounds, 2 filed by Plaintiff the Adm inistrators of the Tulane Educational Fund (“Tulane”) and Counterclaim -Defen dant Dr. J am es E. Zadina. The United States join s the m otions in part. 3 Cytogel opposes the m otions. 4 For the reasons that follow, Tulane and Dr. Zadina’s Motions for Sum m ary J udgm ent are GRAN TED IN PART and D EN IED IN PART. The Court also addresses 1 R. Doc. 279. R. Doc. 271. 3 The Un ited States joins the Motion for Sum m ary J udgm ent on perem ption and prescription grounds as to Count 10 of Cytogel’s counterclaim s, R. Doc. 271 at 1, and the Motion for Sum m ary J udgm ent for failure to establish an essential elem ent of each claim as to “counterclaim s presently asserted against it: Counts 8 , 10 , 11, and 13,” R. Doc. 279 at 1. This list does not include Count 9, which Cytogel brings against the Tulane and the United States, R. Doc. 220 at 39. As a result, in this Order, the Court does not address Count 9 as against the Un ited States. The list includes Count 11 of Cytogel’s counterclaim s, which the Court dism issed as to the United States on March 28 , 20 17. R. Doc. 67. The Court dism issed Coun ts 10 and 13 of Cytogel’s counterclaim s as to the United States on Septem ber 17, 20 18 . R. Doc. 297. The only claim against the United States the Court addresses in this order is Count 8. 4 R. Docs. 30 5, 321. 2 1 Dockets.Justia.com portions of pending m otions to dism iss raising the sam e argum ents as the instant m otions for sum m ary judgm ent. 5 BACKGROU N D 6 In the 1990 s, Dr. Zadina and his colleagues at Tulane University researched an d developed opioid com pounds related to endom orphins, which are opioid peptides found naturally in the hum an body. 7 Based on their research, Tulane obtained two patents, U.S. Patent Nos. 5,885,958 (“the ’958 Patent”) and 6,30 3,578 (“the ’578 Patent”), claim ing these com pounds. 8 On Decem ber 1, 20 0 3, Tulane licensed the patents to Cytogel. 9 After Tulane and Cytogel signed a Licensing Agreem ent, Dr. Zadin a began perform ing consulting work for Cytogel pursuant to a Consulting Agreem ent. 10 He advised Cytogel on the developm ent of Cyt-10 10 , a synthetic opioid peptide covered by the ’958 and ’587 Patents, 11 for com m ercial use as an an algesic. 12 Dr. Zadina was a joint em ployee of Tulane and the Departm ent of Veterans Affairs (“VA”). 13 He an d his colleague Dr. Laszlo Hackler developed new synthetic opioid com pounds for Tulane and the VA. 14 Drs. Zadina an d Hackler filed United States 5 R. Docs. 74, 75, 30 1. The facts in this section are undisputed unless noted otherwise. For purposes of their Motion for Partial Sum m ary J udgm ent as to Counts 5– 13 of Cytogel’s Second Am ended and Restated Counterclaim s, Tulane and Dr. Zadina do not dispute the facts set forth in portions of Cytogel’s pleadings that they cite, R. Doc. 279-3 at 7 n.2. For purposes of their m otion, they also do not dispute the facts set forth in their own statem ent of undisputed facts. Id. 7 R. Doc. 1 at 4– 5, ¶ 14– 16; R. Doc. 220 at 9, ¶ 16. 8 R. Doc. 1 at 5– 6, ¶ 17– 19; R. Doc. 220 at 9, ¶ 16. 9 R. Doc. 1 at 6, ¶ 20 ; R. Doc. 220 at 9, ¶ 17. 10 R. Doc. 1 at 6– 9, ¶ 24– 36; R. Doc. 220 at 10 , ¶ 19. 11 The parties’ filings do not clarify whether Cyt-10 10 is covered by the ’958 Patent, the ’587 Patent, or both patents. 12 R. Doc. 1 at 5, 6, ¶ 16, 20 – 21; R. Doc. 220 at 13, ¶ 32. 13 R. Doc. 1 at 3, ¶ 10 – 11; R. Doc. 220 at 7, ¶ 10 . 14 R. Doc. 1 at 9– 10 , ¶ 38 – 41; R. Doc. 220 at 19– 21, ¶ 50 – 55. 6 2 Provisional Application 61/ 363,0 39 (“the Provisional Application”) for these com pounds. 15 On Septem ber 8, 20 10 , Tulane sent Cytogel an em ail stating Dr. Zadina had design ed a “new fam ily of peptides” and had filed the related Provisional Application. 16 From that date onward, Cytogel “disengaged from Dr. Zadina” and stopped working with him .”17 On or around Septem ber 10 , 20 10 , Dean Maglaris, Cytogel’s chief executive officer, told J ohn Christie of Tulane “he believed Cytogel owned the technology of the Provisional Application.”18 By Novem ber 22, 20 11, Cytogel believed there was a “dispute over the technology of the Provisional Application as between Tulane and Cytogel.”19 On that date, Cytogel’s counsel sent Tulane a letter asserting it had evidence Dr. Zadina “took vital and confidential inform ation from Cytogel, . . . [and] develop[ed] a new m olecule . . . based at least in part on the inform ation that em erged from his consultancy with Cytogel.”20 The Provisional Application was incorporated into United States Patent Application 13/ 477,423 (“the Patent Application”), 21 which was filed on May 22, 20 12. 22 Drs. Zadin a and Hackler executed an assignm ent of the Patent Application to Tulane and the VA on August 22, 20 12, 23 and the assignm ent was recorded on Septem ber 25, 20 12. 24 15 R. Doc. 271-4 at 4, ¶ 8 ; R. Doc. 321-1 at 4, ¶ 8 . R. Doc. 271-4 at 5, ¶ 14; R. Doc. 321-1 at 5, ¶ 14. 17 R. Doc. 271-4 at 5, ¶ 16; R. Doc. 321-1 at 6, ¶ 16. 18 R. Doc. 271-4 at 6, ¶ 19; R. Doc. 321-1 at 8, ¶ 19. 19 R. Doc. 271-4 at 8 , ¶ 22; R. Doc. 321-1 at 10 , ¶ 22. 20 R. Doc. 271-4 at 8 , ¶ 23; R. Doc. 321-1 at 10 , ¶ 23. 21 R. Doc. 271-4 at 4, ¶ 7; R. Doc. 321-1 at 4, ¶ 7. 22 R. Doc. 271-15 at 2. 23 R. Doc. 271-4 at 4, ¶ 10 ; R. Doc. 321-1 at 4, ¶ 10 . Cytogel contests the validity of the assignm ent. R. Doc. 321-1 at 4, ¶ 10 . 24 R. Doc. 271-4 at 4, ¶ 12; R. Doc. 321-1 at 5, ¶ 12. 16 3 The Patent Application was published on Decem ber 20 , 20 12. 25 On May 6, 20 14, the Patent Application issued as United States Patent 8,716,436 B2 (“’436 Patent”). 26 On August 19, 20 16, the United States and Tulane filed suit against Cytogel for declaratory judgm ents of ownership and inventorship of the ’436 Patent and related applications. 27 On Septem ber 7, 20 16, Cytogel filed thirteen counterclaim s against Plaintiffs Tulane and the United States, joining Dr. Zadina as Counterclaim -Defendant. 28 On J uly 23, 20 18, Cytogel filed its First Am en ded and Restated Affirm ative Defenses and Second Am ended and Restated Counterclaim s, which included a fourteenth counterclaim . 29 The counterclaim s at issue in these m otions are: (5) Breach of the Duty of Good Faith and Fair Dealing Owed Under the Consulting Agreem ent against Dr. Zadina; (6) Breach of the Licensing Agreem ent against Tulane; (7) Breach of the Duty of Good Faith and Fair Dealing Owed Under the Licensing Agreem ent against Tulane; (8 ) Misappropriation of Trade Secrets in violation of the Louisiana Uniform Trade Secrets Act (“LUTSA”) 30 against the United States, Tulane, and Dr. Zadina; (9) Receipt of a Thing Not Owed against Tulane and the United States; 31 (10 ) Violations of the Unfair Trade Practices and Consum er Protection Law (“LUTPA”) 32 against Dr. Zadina and Tulane; 33 (11) Tortious Interference with Business Relations against Tulane; 34 (12) Tortious 25 R. Doc. 271-4 at 4, ¶ 9; R. Doc. 321-1 at 4, ¶ 9. R. Doc. 1 at 11– 12, ¶ 43– 47; R. Doc. 220 at 21, ¶ 57. 27 R. Doc. 1. 28 R. Doc. 6. 29 R. Doc. 220 . 30 LA. R EV. STAT. § 51:1431 et seq. 31 The Court does not address Count 9 as against the Un ited States. See supra, n .3. 32 LA. R EV. STAT. § 51:140 1 et seq. 33 On Septem ber 17, 20 18, the Court dism issed Count 10 of Cytogel’s Second Am ended and Restated Counterclaim s as to the Un ited States. R. Doc. 297. 34 On March 28 , 20 17, the Court dism issed Count 11 of Cytogel’s counterclaim s as to the Un ited States pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. R. Doc. 67. In its Cytogel’s Second 26 4 Interference with Contractual Relations against Tulane and Dr. Zadina; and (13) Unjust Enrichm ent against Tulane. 35 Tulane and Dr. Zadina filed the instant m otions on Septem ber 10 , 20 18. 36 In their Motion for Partial Sum m ary J udgm ent as to Counts 5– 13 of Cytogel’s Second Am ended and Restated Counterclaim s for Failure to Establish an Essential Elem ent of Each Claim , they argue Cytogel has failed to establish essential elem ents of each claim . 37 In their Motion for Partial Sum m ary J udgm ent based on perem ption and prescription grounds, Tulane and Dr. Zadina argue Counts 8, 11, and 12 of Cytogel’s Second Am en ded an d Restated Counterclaim s have prescribed, and Count 10 has perem pted. 38 They argue Count 13, which alleges unjust enrichm ent, is based on the sam e facts as its other tort claim s and fails as a result. 39 Cytogel opposes both m otions. 40 SU MMARY J U D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”41 “An issue is m aterial if its resolution could affect the outcom e of the action.”42 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing Am ended and Restated Counterclaim s, it realleges Count 11 as to the United States. R. Doc. 220 . Because Count 11 has already been dism issed as to the United States, the Court does not address Count 11 in this order. 35 On Septem ber 17, 20 18, the Court granted the Un ited States’ unopposed m otion to dism iss Count 13 of Cytogel’s Second Am ended and Restated Counterclaim s as to the United States. R. Doc. 297. 36 R. Docs. 271, 279. 37 R. Doc. 279. 38 R. Doc. 271-1. 39 R. Doc. 279-1 at 26– 27. In their m otion for sum m ary judgm ent on prescription grounds, Tulan e and Dr. Zadina argue, although all Cytogel’s tort claim s have prescribed, they are entitled to judgm ent on Count 13 because an un just enrichm ent claim can not be used to circum vent prescription . R. Doc. 271-1 at 17– 18. The Court does not address this argum ent because it does n ot find all of Cytogel’s tort claim s have prescribed. 40 R. Docs. 30 5, 321. 41 F ED . R. CIV. P. 56; see also Celotex, 477 U.S. at 322– 23. 42 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 5 the eviden ce.”43 All reasonable inferences are drawn in favor of the non-m oving party. 44 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 45 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion, and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.” To satisfy Rule 56’s burden of production, the m oving party m ust do one of two things: “the m oving party m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “the m oving party m ay dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .” If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 46 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to 43 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 44 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 45 Hibernia N at. Bank v . Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Am oco Prod. Co. v . Horw ell Energy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 46 Celotex, 477 U.S. at 322– 24. 6 establish an essential elem ent of the non-m ovant’s claim . 47 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 48 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”49 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”50 LAW AN D AN ALYSIS I. Ge n u in e is s u e s o f m ate ria l fact re gard in g th e Co n s u ltin g Agre e m e n t an d Lice n s in g Agre e m e n t p re clu d e s u m m ary ju d gm e n t o n Co u n ts 5– 7 o f Cyto ge l’s S e co n d Am e n d e d a n d Re s tate d Co u n te rclaim s . Tu lan e an d D r. Zad in a are n o t e n title d to ju d gm e n t as a m atte r o f law bas e d o n th e Go ve rn m e n t Lice n s e D e fe n s e . Cytogel brings Counts 5– 7 under Louisiana contract law against Dr. Zadina an d Tulane. 51 Count 5 alleges Dr. Zadina breached the duty of good faith and fair dealing owed under the Consulting Agreem ent by m isappropriating Cytogel’s confidential inform ation. 52 Count 6 alleges Tulane breached its Licensing Agreem ent with Cytogel by 47 Id. at 331– 32 (Bren nan, J ., dissentin g). See id. at 332. 49 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 50 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 51 R. Doc. 220 at 32– 35. 52 Id. at 32– 33, ¶ 97– 10 0 . 48 7 using the licensed com pounds to develop the com pounds claim ed in the ’436 Patent. 53 Count 7 alleges Tulane breached the duty of good faith and fair dealing owed under the Licen sing Agreem ent. 54 A. Count 6 of Cytogel’s Second Am ended and Restated Counterclaim s 1. The Governm ent License defense does not shield Tulane and Dr. Zadina from liability for breach of the Licensing Agreem ent. Tulane and Dr. Zadina argue they cannot be held liable for breach of the Licen sing Agreem ent because the federal governm ent holds a license in the ’958 and ’578 Patents pursuant to the Bayh-Dole Act. 55 The m aterial facts are not in dispute. Because the ’958 and ’578 Patents were developed in connection with a federal funding agreem ent, the patents are subject to a federal governm ent license. 56 The Licensing Agreem ent specifies that Tulane’s license to Cytogel is subject to the United States’ retention of “certain rights in intellectual property funded in whole or part under any contract, grant or sim ilar agreem ent with a Federal agency.”57 Under the Bayh-Dole Act, when a nonprofit organization develops an invention in connection with a funding agreem ent and elects to retain title to the invention, “the Federal agency shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States any subject invention throughout the world.”58 This “Governm ent License” protects the public’s interest in 53 Id. Id. at 34– 35, ¶ 10 6– 10 . 55 R. Doc. 279-3 at 12– 13. 56 R. Doc. 279-4 at 2– 3, ¶ 3– 5; R. Doc. 30 5-1 at 2– 3, ¶ 3– 5. 57 R. Doc. 279-1 at 6, ¶ 2.2. 58 35 U.S.C.A. § 20 2(c)(4). 54 8 “[i]nventions m ade under a Governm ent contract[, which] are the product of expen ditures from the public treasury in the course of a governm ental function.”59 The Bayh-Dole Act does not specify who m ay raise a Governm ent License as a defense. “[C]ourts have recognized that the license m ay be raised by the Governm ent as an affirm ative defense when the Governm ent is sued for patent infringem ent in the Court of Federal Claim s.”60 Tulane and Dr. Zadina cite no cases in support of the proposition that a nongovernm ental entity m ay raise the Governm ent License in its own defense. In Madey v. Duke University , 61 the only case squarely addressing this issue, a district court concluded “the Governm ent License created by the Bayh– Dole Act is designed to regulate the relationship between the Governm ent and its funding recipients, but it would not be available to a private third party as the basis for a private right of action or private defense.”62 The Madey court cited cases concluding other portions of the Bayh-Dole Act created a private right of action. 63 The court found “nothing in the term s of the Bayh– Dole Act or the provisions incorporated into the federal funding agreem ents that reserves or retains a license for any private third party.”64 The court also noted that a separate statutory provision, 28 U.S.C. § 1498(a), creates an affirm ative defen se for private parties using a patent “for the United States,” and, as a result, allowing private parties to invoke 59 Technical Dev . Corp. v. United States, 220 Ct.Cl. 128, 597 F.2d 733, 745 (1979) (quoting Mine Safety Appliances Co. v. United States, 176 Ct.Cl. 777, 364 F.2d 385, 392 (1966)). 60 Madey v. Duke Univ., 413 F. Supp. 2d 60 1, 611 (M.D.N.C. 20 0 6) (citing Technical Dev. Corp., 597 F.2d at 745– 46; Technitrol, Inc. v. United States, 194 Ct.Cl. 596, 440 F.2d 1362 (1971)). 61 Id. 62 Id. at 613. 63 Id. at 612– 13 (citing Fenn v. Yale Univ., 393 F.Supp.2d 133, 141– 42 (D.Conn .20 0 4); Gen– Probe, Inc. v. Center for N eurologic Study , 853 F.Supp. 1215, 1217– 18 (S.D.Cal.1993); Platzer v. Sloan– Kettering Inst. for Cancer Research, 787 F.Supp. 360 , 364– 65 (S.D.N.Y.1992), aff'd, 983 F.2d 10 8 6 (Fed.Cir.1992)). 64 Id. at 613. 9 the Governm ent Licen se defen se would be duplicative of the defen se in § 1498(a). The Madey court found “no basis to infer a duplicative Governm ent License defense.”65 This Court agrees with Madey ’s interpretation of the Bayh-Dole Act. In this case, Tulane licensed rights to the ’958 and ’578 Patents to Cytogel subject to a Governm ent Licen se, but the United States was not a party to the Licensing Agreem ent. 66 The Court finds no support in the Bayh-Dole Act or in caselaw for the proposition that the Governm ent License defense shelters a private party sued for breach of a patent licen sing contract. In Count 6 of its Second Am ended and Restated Counterclaim s, Cytogel alleges Tulane breached the contract between Cytogel and Tulane, not that the United States infringed its rights. 67 The Governm ent License defense does not protect Tulane an d Dr. Zadin a from liability under Count 6 of Cytogel’s Second Am ended an d Restated Counterclaim s. Tulane and Dr. Zadina are not entitled to judgm ent as a m atter of law that the Governm ent Licen se defen se shields them from liability. 2. The term s of the Licensing Agreem ent are am biguous as to the scope of the license Tulane granted Cy togel, and there are genuine issues of m aterial fact as to the intent of the parties. The content of the Licensing Agreem ent is undisputed. Tulane granted Cytogel “an exclusive, worldwide license under the Patent Rights . . . to research, use m ake, have m ade, im port, sell and offer for sale any Licensed Product(s) within the Field.”68 The “Patent Rights” are defined as the rights to the ’958 and ’578 Patents. 69 “Licensed Product” is defined as “any product incorporating, em bodying, otherwise m aking use of 65 Id. at 614. R. Doc. 279-1 at 6, ¶ 2.1– 2.2. 67 R. Doc. 220 at 33– 34. 68 R. Doc. 279-1 at 6, ¶ 2.1. 69 Id. at 22 (“Appendix A”). 66 10 or described in the patents within the Patent Rights.”70 The “Field” is defined as “the use of the Licensed Product for m edical use in hum ans an d anim als.”71 The parties nevertheless dispute the intent of the parties to the contract. “Interpretation of a contract is the determ ination of the com m on intent of the parties.”72 “Intent is an issue of fact which is to be inferred from all of the surrounding circum stances.”73 “A doubtful provision m ust be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the form ation of the contract, and other contracts of a like nature between the sam e parties.”74 “[I]f the language of a written agreem ent is on its face am biguous, the courts can consider parol eviden ce and all of the surrounding circum stances in an effort to determ ine the true intent of the parties.”75 In their Motion for Partial Sum m ary J udgment as to Counts 5– 13 for Failure to Establish an Essential Elem ent of Each Claim , Tulane an d Dr. Zadina incorporate by reference the argum en ts they m ake in their Motion for Partial Sum m ary J udgm ent of Infringem ent. 76 In that m otion, they argue “m edical use for hum ans and anim als” includes only clinical studies at or beyond United States Food an d Drug Adm inistration Phase II because Phase II is the earliest phase involving ill patients, not healthy volunteers. 77 Because Cytogel alleges Tulane breached the Licen sing Agreem ent in connection with testing the ’436 Patent com pounds, and not during a clinical study in 70 Id. at 5, ¶ 1.6. at 5, ¶ 1.5. 72 LA. CIV. CODE art. 20 45. 73 Fleniken v. Entergy Corp., 790 So. 2d 64, 73 (La. App. 1 Cir. 2/ 16/ 0 1), w rit denied, 793 So. 2d 1250 (La. 6/ 15/ 0 1), and w rit denied, 793 So. 2d 1252 (La. 6/ 15/ 0 1). 74 LA. CIV. CODE art. 20 53. 75 Starke Tay lor & Sons, Inc. v. Riverside Plantation, 30 1 So. 2d 676, 679 (La. Ct. App. 1974). 76 R. Doc. 279-3 at 13 n.6. 77 R. Doc. 274-3 at 8 – 10 . 71 Id. 11 Phase II or beyon d, Tulane and Dr. Zadina argue Cytogel cannot establish Tulane breached the agreem ent. 78 In opposition, Cytogel argues the Licensing Agreem ent grants it exclusive Patent Rights for preclinical and Phase I research. 79 The “Field” is defined as “the use of the Licen sed Product for m edical use.”80 Cytogel adm its Tulane and Dr. Zadina’s using the Licen sed Product in connection with testing the ’436 Patent com pounds did not constitute m edical use per se. 81 Nevertheless, Cytogel argues Tulane and Dr. Zadin a violated the Licen sing Agreem ent because their use of the Licensed Product to test the ’436 Patent com pounds constitutes “use for m edical use,” which falls within the scope of the Field. 82 The contract does not define “m edical use” or “research.” The Court finds the term s of the contract are am biguous regarding whether the licen se covers preclinical and Phase I studies. Genuine issues of m aterial fact exist with respect to the m ean ing of the contractual provisions defining the scope of the license. 83 “[W]hen a contract is am biguous, the trier of fact m ust resolve the factual issue of intent, and judgm ent on the pleadings or sum m ary judgm ent is im proper.”84 Sum m ary judgm ent on Count 6 of Cytogel’s Second Am ended and Restated Counterclaim s is not appropriate. 85 78 Id. R. Doc. 313 at 7. 80 R. Doc. 279-1 at 5, ¶ 1.5. 81 R. Doc. 313 at 7. 82 Id. 83 R. Doc. 313-1 at 4, ¶ 8. 84 Guidry v. Am . Pub. Life Ins. Co., 512 F.3d 177, 181 (5th Cir. 20 0 7) (citin g Investors Sy ndicate of Am ., Inc. v. City of Indian Rocks Beach, 434 F.2d 871, 877– 78 (5th Cir.1970 ); Gertler v. City of N ew Orleans, 20 0 32131 (La. App. 4 Cir. 9/ 1/ 0 4), 881 So. 2d 792, 796, w rit denied, 20 0 4-2649 (La. 1/ 7/ 0 5), 891 So. 2d 687). 85 In the instant m otion and opposition, the parties raise argum ents regarding whether Tulane breached the confidentiality provisions of the Licensin g Agreem ent. R. Doc. 279-3 at 13; R. Doc. 30 5 at 11– 14. The Court notes, in its Second Am ended and Restated Coun terclaim s, Cytogel does not allege Tulane breached the confidentiality provisions of the Licensin g Agreem ent. R. Doc. 220 at 33– 34, ¶ 10 1– 0 5. As a result, the Court does not address the parties’ argum ents regardin g the confidentiality provisions. 79 12 B. Counts 5 and 7 of Cytogel’s Second Am ended and Restated Counterclaim s Under Louisiana law, every contract includes an im plicit covenant of good faith and fair dealing. 86 A claim for breach of this duty requires “m ore than m ere bad judgm ent or negligence,” but rather a showing of a “design to m islead or deceive another, or a neglect or refusal to fulfill som e duty or som e contractual obligation, . . . [prom pted] by som e interested or sin ister m otive.”87 Cytogel’s Second Am ended and Restated Counterclaim s are replete with allegations that Dr. Zadina and Tulane deceived and m isled them , in violation of the Consulting Agreem ent and Licensing Agreem ent. 88 These counterclaim s are based on allegations Dr. Zadina secretly used confidential inform ation to com pete with Cytogel, that he and Tulane used products exclusively licensed to Cytogel and continued to hide this use from Cytogel, and that they deliberately m isled Cytogel into believing its intellectual property rights would be respected. 89 Cytogel states in interrogatory responses that “m alice and ill m otive m ay be inferred” from Tulane and Dr. Zadina’s actions. 90 Tulane and Dr. Zadina argue this “bald assertion . . . is not sufficient to survive sum m ary judgm ent.”91 Inferring m alice and ill m otive from parties’ actions falls squarely within the factfinder’s role, an d “[a] m otion for sum m ary judgm ent requiring a judicial 86 LA. CIV. CODE art. 1983 (“Contracts m ust be perform ed in good faith.”); see also LA. CIV. CODE art. 1997 (“An obligor in bad faith is liable for all the dam ages, foreseeable or not, that are a direct consequence of his failure to perform .”). 87 Industrias Magrom er Cueros y Pieles S.A. v. Louisiana Bay ou Furs Inc., 293 F.3d 912, 922 (5th Cir. 20 0 2) (quoting Bond v. Broadw ay , 60 7 So.2d 865, 867 (La.Ct.App.1992)). 88 See generally R. Doc. 220 . 89 Id. at 19– 28. 90 R. Doc. 279-4 at 9, ¶ 33– 36; R. Doc. 30 5-1 at 11, ¶ 33– 36. 91 R. Doc. 279-3 at 15. 13 determ ination of subject facts, such as m otive, intent or knowledge, is rarely appropriate.”92 The Court notes Tulane and Dr. Zadina do not m ove for sum m ary judgm ent on Count 4, which is the underlying breach of contract claim for the breach of the duty of good faith and fair dealing alleged in Count 5. The Court has found genuine issues of m aterial fact that preclude sum m ary judgm ent on Count 6, which is the underlying breach of contract claim for Count 7. “[J ]udicial determ ination of good-faith (or bad-faith) failure to perform a conventional obligation is always preceded by a finding that there was a failure to perform , or a breach of the contract.”93 The genuine issues of m aterial fact as to the underlying breach of contract claim s and disputes about the parties’ m otives preclude sum m ary judgm ent on the claim s for breach of the duty of good faith and fair dealing. As a result, the Court denies Tulane an d Dr. Zadina’s Motion for Partial Sum m ary J udgm ent for Failure to State the Essential Elem ents of a Claim as to Counts 5– 7. 94 II. W ith re s p e ct to Co u n t 8 o f Cyto ge l’s Se co n d Am e n d e d an d Re s tate d Co u n te rclaim s , th e re a re ge n u in e is s u e s o f m ate rial fa ct abo u t w h e th e r Tu lan e , D r. Zad in a , a n d th e VA m is ap p ro p riate d Cyto ge l’s trad e s e cre ts , an d m o van ts h ave n o t e s tablis h e d th at th e cla im h a s p re s cribe d . Cytogel brings Count 8 of its Second Am ended and Restated Counterclaim s, alleging m isappropriation of trade secrets, against Tulane, Dr. Zadina, and the United States pursuant to LUTSA. 95 Cytogel alleges five trade secrets were m isappropriated: Cytogel’s research and developm ent regarding Cyt-10 10 ’s com m ercial viability and fitness for hum an use, Cytogel’s research on Cyt-10 10 ’s safety, data and inform ation on solubility 92 N eum an v. Mauffray , 1999-2297 (La. App. 1 Cir. 11/ 8 / 0 0 ), 771 So. 2d 283, 286. Favrot v. Favrot, 20 10 -0 986 (La. App. 4 Cir. 2/ 9/ 11), 68 So. 3d 10 99, 1110 , w rit denied, 20 11-0 636 (La. 5/ 6/ 11), 62 So. 3d 127. 94 R. Doc. 279. 95 R. Doc. 220 at 35. 93 14 issues with Cyt-10 10 , inform ation on potential m odifications to Cyt-10 10 ’s structure, and inform ation about m arketing and com m unicating with licensing partners. 96 Tulane and Dr. Zadina argue Cytogel has no evidence to support the existence of a trade secret, 97 and Cytogel’s claim has prescribed. 98 The United States joins as to the Motion for Partial Sum m ary J udgm ent for Failure to Establish an Essential Elem ent of Each Claim , 99 but not as to the Motion for Partial Sum m ary J udgm ent on perem ption and prescription grounds. 10 0 A. Tulane, Dr. Zadina, and the United States have not shown they are entitled to judgm ent as a m atter of law that Cytogel did not own trade secrets. The parties dispute the facts m aterial to Cytogel’s claim for m isappropriation of trade secrets. Tulane, Dr. Zadina, and the United States assert Cytogel does not and cannot distinguish between inform ation it keeps confidential and trade secrets it owns. 10 1 Cytogel disputes this fact. 10 2 In its Second Am ended an d Restated Counterclaim s, Cytogel specifies five different trade secrets that it alleges Dr. Zadina, Tulane, and the VA m isappropriated. 10 3 Tulane, Dr. Zadin a, and the United States dispute whether any of these are actually trade secrets. 10 4 LUTSA defines a trade secret as “inform ation, including a form ula, pattern, com pilation, program , device, m ethod, technique, or process, that (a) derives independent econom ic value, actual or potential, from not begin generally known to an d not being readily ascertainable by proper m eans by other persons who can obtain 96 Id. at 35– 36, ¶ 112. R. Doc. 279-3 at 16– 20 . 98 R. Doc. 271 at 9– 14. 99 R. Doc. 279 at 1. 10 0 R. Doc. 271 at 1. 10 1 R. Doc. 279-4 at 6, ¶ 22, 23. 10 2 R. Doc. 30 5-1 at 7– 8 , ¶ 22, 23. 10 3 Id. at 35– 36, ¶ 112. 10 4 R. Doc. 279-4 at 6, ¶ 22, 23. 97 15 econom ic value from its disclosure or use, and (b) is the subject of efforts that are reasonable under the circum stances to m aintain its secrecy.”10 5 “Whether som ething is a trade secret is a question of fact.”10 6 Tulane and Dr. Zadina argue Cytogel has not identified the trade secrets at issue. 10 7 They cite excerpts from the deposition transcripts of Dean Maglaris, Cytogel’s CEO, in which he defined trade secrets as anything Cytogel does “that creates new inform ation about [its] technology and products” and stated trade secrets were in the “sam e category” as confidential inform ation, and the two were “treated the sam e way.”10 8 Tulane and Dr. Zadina cite these deposition excerpts for the propositions that (1) “[a]ccording to Cytogel, anything Cytogel does that creates new inform ation about the technology and the products Cytogel is working on is Cytogel’s trade secret” and (2) “Cytogel does not separate and treat any particular inform ation in its com pany as a trade secret.”10 9 Cytogel disputes these characterizations. 110 The fact that Cytogel’s CEO could not identify the legal difference between a trade secret and confidential inform ation during a deposition does not underm in e Cytogel’s allegation that it owned trade secrets. Cytogel specifies five trade secrets it alleges Tulane and Dr. Zadina m isappropriated. Disputed issues of fact rem ain with respect to whether Cytogel owns any trade secrets. 10 5 LA. R EV. STAT. § 51:1431(4). CheckPoint Fluidic Sy s. Int'l, Ltd. v. Guccione, 8 8 8 F. Supp. 2d 780 , 796 (E.D. La. 20 12) (citing Pontchartrain Med. Labs., Inc. v. Roche Biom edical Labs., Inc., 95-2260 (La. App. 1 Cir. 6/ 28/ 96), 677 So. 2d 10 86, 10 91; United Group of N at'l Paper Distribs., Inc. v. Vinson, 27,739 (La. App. 2 Cir. 1/ 25/ 96), 666 So. 2d 1338 , 1344, w rit den ied, 96-0 714 (La. 9/ 27/ 96), 679 So. 2d 1358); see also Lear Siegler, Inc. v. ArkEll Springs, Inc., 569 F.2d 286, 28 8– 89 (5th Cir. 1978 ) (“The question of whether an item taken from an em ployer constitutes a “trade secret,” is of the type norm ally resolved by a fact finder after full presentation of evidence from each side.”) (citations om itted). 10 7 R. Doc. 279-3 at 17. 10 8 Id. at 17– 18. 10 9 R. Doc. 279-4 at 6, ¶ 22, 23. 110 R. Doc. 30 5-1 at 7– 8 , ¶ 22, 23. 10 6 16 LUTSA does not require a corporation to m aintain its trade secrets in greater secrecy than other confidential inform ation. Rather, a trade secret m ust be “the subject of efforts that are reasonable under the circum stances to m aintain its secrecy.”111 Even if Cytogel does not in practice distinguish between trade secrets and other confidential inform ation, Cytogel m ay own trade secrets for purposes of LUTSA so long as it m akes reasonable efforts to m aintain their secrecy. Disputed issues of fact rem ain with respect to whether Cytogel protects its trade secrets. Tulane and Dr. Zadina also argue Cytogel has not shown its trade secrets had econom ic value. 112 Cytogel has produced docum entation and expert reports showing the costs it has incurred in developing Cyt-10 10 and estim ating the value of the developm ent opportunities it alleges it lost as a result of Tulane and Dr. Zadina’s alleged m isappropriation. 113 Whether Cytogel’s claim ed trade secrets have independent econom ic value is a disputed question of fact. Tulane and Dr. Zadina have failed to establish there are no m aterial facts in dispute with respect to Count 8. B. Because genuine issues of m aterial fact exist with respect to when Cytogel learned or should have learned of Tulane, Dr. Zadina, and the United States’ alleged m isappropriation of trade secrets, Tulane, Dr. Zadina, and the United States are not entitled to sum m ary judgm ent that Cytogel’s claim s have prescribed. The undisputed facts show on Septem ber 8 , 20 10 , Tulane sent Cytogel an em ail stating Dr. Zadina had designed a “new fam ily of peptides” and had filed the related Provisional Application. 114 As a result, Cytogel stopped working with Dr. Zadina. 115 On or 111 La. Rev. Stat. § 51:1431(4)(b). R. Doc. 279-3 at 20 . 113 See generally R. Doc. 317. Tulan e and Dr. Zadina do not argue that, if there were trade secrets, a reasonable jury could not find m isappropriation. 114 R. Doc. 271-4 at 5, ¶ 14, 16; R. Doc. 321-1 at 5, ¶ 14, 16. 115 R. Doc. 271-4 at 5, ¶ 16; R. Doc. 321-1 at 6, ¶ 16. 112 17 around Septem ber 10 , 20 10 , Dean Maglaris of Cytogel inform ed Tulane he believed Cytogel owned the com pound claim ed in the Provisional Application.”116 On Novem ber 22, 20 11, Cytogel sent Tulane a letter asserting it had evidence Dr. Zadina “took vital and confidential inform ation from Cytogel, . . . [and] develop[ed] a new m olecule . . . based at least in part on the inform ation that em erged from his consultancy with Cytogel.”117 The Provisional Application was incorporated into the related Patent Application, 118 which was published on Decem ber 20 , 20 12. 119 The parties dispute the date on which the prescriptive period for Cytogel’s LUTSA claim began. Actions under LUTSA are subject to a three-year prescriptive period that begins when “the m isappropriation was discovered or by the exercise of reasonable diligence should have been discovered.”120 “[A] continuing m isappropriation constitutes a single claim .”121 Cytogel alleges Tulane and Dr. Zadin a m isappropriated five distinct trade secrets. 122 The Court first addresses whether the alleged trade secrets are subject to m ultiple prescriptive periods. Neither the Fifth Circuit nor Louisiana state courts have addressed which factual situations require courts to find there are m ultiple trade secret claim s subject to different prescriptive periods under LUTSA. In Gognat v. Ellsw orth 123 , the Colorado Suprem e Court addressed this question in the context of the Colorado Uniform Trade Secrets Act, which is substantially identical to LUTSA. 124 The Gognat 116 R. Doc. 271-4 at 6, ¶ 19; R. Doc. 321-1 at 8, ¶ 19. R. Doc. 271-4 at 8 , ¶ 23; R. Doc. 321-1 at 10 , ¶ 23. 118 R. Doc. 271-4 at 4, ¶ 7; R. Doc. 321-1 at 4, ¶ 7. 119 R. Doc. 271-4 at 4, ¶ 9; R. Doc. 321-1 at 4, ¶ 9. 120 La. Rev. Stat. § 51:1436. 121 Id. 122 Id. at 35– 36, ¶ 112. 123 259 P.3d 497 (Co. 20 11). 124 Com pare COLO . R EV. STAT. § 7-74-10 1 et seq. w ith LA. R EV. STAT. § 51:1436 et seq. 117 18 court noted the difficulty of distinguishing between one trade secret subject to one prescriptive period and m ultiple related trade secrets subject to separate prescriptive periods. 125 The court held when m ultiple trade secrets are sufficiently related, they are subject to one prescriptive period. 126 In this case, Cytogel alleges Tulane and Dr. Zadina m isappropriated five trade secrets that arise from the Consulting Agreem ent with Dr. Zadina. 127 Tulane and Dr. Zadin a do not present undisputed evidence that the trade secrets are sufficiently related to justify subjecting m isappropriation claim s to one prescriptive period. Som e of the alleged trade secrets in clude highly technical inform ation relating to testing and viability of pharm aceuticals. 128 There are m aterial facts in dispute with respect to whether the alleged trade secrets should be subject to one or to m ultiple prescriptive periods. Tulane and Dr. Zadina argue Cytogel was aware of the alleged m isappropriation by the tim e of Maglaris’ em ail of Septem ber 10 , 20 10 , Cytogel’s letter of Novem ber 22, 20 11, or the publication of the Patent Application on Decem ber 20 , 20 12. 129 The Court has reviewed Cytogel’s letter of Novem ber 22, 20 11. 130 The letter at best in dicates Cytogel was aware of m isappropriation of som e, but not all, of the trade secrets Cytogel alleges Plaintiffs m isappropriated. Tulane and Dr. Zadina have not shown that it is undisputed that all of the prescriptive periods began on Novem ber 22, 20 11. 125 Gognat, 259 P.3d at 50 3 (“While the actual language of the statute m ay not classify a subsequent m isappropriation of related trade secrets a single claim , the distinction between related trade secrets and the related pieces of proprietary inform ation form in g a single trade secret would appear to be subtle at best.”). 126 Id. at 50 4; accord Interm edics, Inc. v . Ventritex, Inc., 8 22 F. Supp. 634, 657 (N.D. Cal. 1993) (holdin g trade secrets under a state statute substantially identical to LUTSA are subject to one prescriptive period when shared by the plaintiffs “with defendants durin g the sam e period and in connection with the sam e relationships and when the trade secrets concern related m atter.”). 127 R. Doc. 220 at 35– 36, ¶ 112. 128 Id. 129 R. Doc. 271-3 at 14. 130 R. Doc. 271-13. 19 The Court has also reviewed the Patent Application. 131 It is undisputed patent applications are publicly available and put parties on notice of their contents. 132 It is disputed whether the technical contents of the Patent Application did or should have put Cytogel on notice of misappropriation of its trade secrets. Tulane and Dr. Zadina have failed to establish they are entitled to judgm ent as a m atter of law that Count 8 of Cytogel’s Second Am ended and Restated Counterclaim s has prescribed. As a result, the Court denies Tulane an d Dr. Zadina’s Motion for Partial Sum m ary J udgm ent for Failure to State the Essential Elem ents of a Claim 133 and their Motion for Partial Sum m ary J udgm ent on Prescription Grounds 134 as to Count 8 of Cytogel’s Second Am ended and Restated Counterclaim s. 135 III. W ith re s p e ct to Co u n t 9 o f Cyo tge l’s Se co n d Am e n d e d an d Re s tate d Co u n te rclaim s , Tu la n e is e n title d to ju d gm e n t as a m atte r o f law . The m aterial facts with respect to Count 9 are undisputed. Drs. Zadina an d Hackler executed an assignm ent of the Patent Application to Tulane and the VA on August 22, 20 12. 136 Cytogel did not execute an assignm ent of the ’436 Patent to Tulane or the VA. 137 Cytogel brings Count 9 of its Second Am ended and Restated Counterclaim s against Tulane and the United States under Louisiana Civil Code articles 2299 and 230 3. 138 Tulane m oves for summ ary judgm ent on this claim . 139 Article 2299 provides that "[a] 131 R. Doc. 271-15. Tew ari De-Ox Sy s., Inc. v. Mountain States/ Rosen, L.L.C., 637 F.3d 60 4, 612 (5th Cir. 20 11) (“There can be no dispute that a published patent application, like a patent, is readily available – the Un ited States Patent and Tradem ark Office and Google both allow free online searching published patent applications.”). 133 R. Doc. 279. 134 R. Doc. 271. 135 The Court denies Tulan e and Dr. Zadina’s Motion to Dism iss Cytogel’s First Am ended Counterclaim s, R. Doc. 74, as to Count 8 . 136 R. Doc. 271-4 at 4, ¶ 10 ; R. Doc. 321-1 at 4, ¶ 10 . Cytogel contests the validity of the assign m ent. R. Doc. 321-1 at 4, ¶ 10 . 137 R. Doc. 274-4 at 8 , ¶ 29; R. Doc. 30 5-1 at 10 , ¶ 29. 138 R. Doc. 220 at 39. 139 R. Doc. 279. 132 20 person who has received a paym ent or a thin g not owed to him is bound to restore it to the person from whom he received it." 140 Under Article 230 3, “[a] person who in bad faith received a paym ent or a thing not owed to him is bound to restore it with its fruits and products.”141 Article 2299 requires that the thing not owed m ust be restored to the person from whom it was received. Louisiana courts have held Article 2299 “is lim ited to the situation in which one person gives som ethin g of value to another because of a perceived obligation to that other, when in fact no obligation exists. It does not apply when a third party, who is not actin g as the agent of either the giver or the receiver is the conduit.”142 Louisiana Civil Code Article 230 3 provides that, if the receipt was in bad faith, the receiver m ust restore not only the thing not owed, but also its fruits and products. This article does not create a cause of action in a third party. In this case, Cytogel alleges Tulane and the VA wrongfully received ownership rights in the ’436 Paten t from Drs. Hackler and Zadina. 143 Because Cytogel does not allege Tulane and the VA received anything from Cytogel, Articles 2299 and 230 3 do not provide a cause of action to Cytogel. 144 As a result, the Court grants Tulane’s Motion for Partial Sum m ary J udgm ent for Failure to State the Essential Elem ents of a Claim as to Count 9 of Cytogel’s Second Am ended and Restated Counterclaim s. 145 140 LA. CIV. CODE art. 2299. CIV. CODE art. 230 3. 142 Soileau v. ABC Ins. Co., 20 0 2-130 1 (La. App. 3 Cir. 3/ 5/ 0 3), 844 So. 2d 10 8 , 110 , w rit denied, 20 0 3-1558 (La. 10 / 3/ 0 3), 855 So. 2d 313 (internal bracket om itted); see also Stew art v. Ruston Louisiana Hosp. Co., LLC, No. CV 3:14-0 0 83, 20 16 WL 1715192, at *9 (W.D. La. Apr. 27, 20 16) (findin g Article 2299 “inapplicable” because the defendants “did not receive any paym ent whatsoever from Plaintiffs”). 143 R. Doc. 220 at 39. 144 Article 230 0 states, “A thing is not owed when it is paid or delivered for the discharge of an obligation that does not exist.” LA. CIV. CODE art. 230 0 . Cytogel does not allege that Drs. Hackler and Zadina assigned their rights in the ’436 Patent in discharge of a non -existent obligation. Cytogel does not, and cannot, establish that the rights to the '436 patent were a "thing not owed" within the m eanin g of Article 230 0 . Cytogel cites Equilease v. Sm ith, 588 F.2d 919 (5th Cir. 1979), for the proposition that the precursor to Article 2299 was “often applied in cases of third party paym ents.” Id. (citations om itted). Even if this applied to Article 2299, Cytogel has not shown the rights to the ’436 Patent are a “thing not owed.” 145 R. Doc. 279. 141 LA. 21 IV. W ith re s p e ct to Co u n t 10 o f Cyto ge l’s Se co n d Am e n d e d an d Re s tate d Co u n te rclaim s , th e re a re ge n u in e is s u e s o f m a te rial fa ct abo u t w h e th e r Tu lan e an d D r. Zad in a e n gage d in u n fa ir trad e p ractice s , an d m o van ts h ave n o t e s tablis h e d th e y are e n title d to s u m m a ry ju d gm e n t. Cytogel brings Count 10 of its Second Am ended and Restated Counterclaim s against Tulane and Dr. Zadina pursuant to LUTPA. 146 A. Tulane and Dr. Zadina have not m et their burden of showing there are no disputed facts with respect to whether they engaged in unfair trade practices. The facts m aterial to Count 10 are disputed. Cytogel alleges Tulane, the VA, and Dr. Zadina m isled Cytogel into believing the ’436 Patent com pounds would be recognized as Cytogel’s. 147 Cytogel alleges it shared with Tulane prelim inary data from a Cytogel study that contained “confidential and proprietary” inform ation. 148 It alleges that, shortly thereafter, Counterclaim -Defendants revised their business plan for the ’436 Patent com pounds to refer to these studies and shared the business plan drafts with a potential licensing or funding partner. 149 Cytogel also alleges Tulane, the VA, and Dr. Zadina “consistently indicated” to it that they were “on board” with m oving forward the collaboration between Tulane, the VA, and Cytogel, but instead granted Mirata Pharm aceuticals, L.L.C. an exclusive licen se. 150 Tulane and Dr. Zadina dispute each of these facts. They contest Cytogel’s use of the word “m islead” in describing their interactions with it. 151 They assert the allegedly proprietary docum ent Cytogel shared did not include confidential inform ation. 152 Tulane 146 On Septem ber 17, 20 18 , the Court dism issed Count 10 as to the United States. R. Doc. 297. R. Doc. 30 5-1 at 33, ¶ 10 3; R. Doc. 373-1 at 8 2, ¶ 10 3. 148 R. Doc. 30 5-1 at 34, ¶ 10 9; R. Doc. 373-1 at 85, ¶ 10 9. 149 R. Doc. 30 5-1 at 34, ¶ 110 – 11; R. Doc. 373-1 at 85– 87, ¶ 110 – 11. 150 R. Doc. 30 5-1 at 35, ¶ 116– 17; R. Doc. 373-1 at 90 – 91, ¶ 116– 17. 151 R. Doc. 373-1 at 8 2, ¶ 10 3. 152 Id. at 85– 87, ¶ 10 9– 11. 147 22 and Dr. Zadina also allege they consistently indicated to Cytogel that they planned to collaborate on the ’436 Patent com pounds. 153 Determ ining what constitutes an unfair trade practice requires a case-by-case analysis. 154 There m ust be an elem ent of "fraud, m isrepresentation, deception, or other unethical conduct." 155 In its Second Am en ded Counterclaim s, Cytogel alleges Plaintiffs' "long-term and concerted attem pt to conceal their m isconduct and delay its discovery by Cytogel" is the basis for its unfair trade practices claim . 156 Tulane and Dr. Zadina argue there is no allegation of a deceptive practice. They base their argum ent on the fact that Cytogel’s expert witness Dr. Gregory K. Bell does not specifically refer to LUTPA or unfair trade practices in his expert report. 157 The parties dispute whether Plaintiffs m isled Cytogel and shared its proprietary inform ation with third parties. 158 The Court finds there are genuine issues of m aterial fact with respect to whether Tulane and Dr. Zadina engaged in unfair trade practices. As with Counts 5 and 7 of Cytogel’s Second Am ended and Restated Counterclaim s, which involve the duty of good faith and fair dealing, determ in ing whether Tulane and Dr. Zadin a engaged in fraud, m isrepresentation, deception, or other unethical conduct is an issue best left to the factfinder. 159 153 Id. at 90 , ¶ 116. Cheram ie Servs., Inc. v. Shell Deepw ater Prod., Inc., 20 0 9-1633 (La. 4/ 23/ 10 ), 35 So. 3d 10 53, 10 59. 155 Tubos de Acero de Mexico, S.A. v. Am . Int'l Inv. Corp., 292 F.3d 471, 48 0 (5th Cir. 20 0 2) (quotin g Om nitech Intern., Inc. v. Clorox Co., 11 F.3d 1316, 1332 (5th Cir.1994)). 156 R. Doc. 220 at 41, ¶ 138. 157 R. Doc. 279-4 at 8 , ¶ 30 . 158 R. Doc. 30 5-1 at 33– 35, ¶ 10 3– 17; R. Doc. 373-1 at 82– 90 , ¶ 10 3– 17. 159 See N eum an, 771 So.2d at 286. 154 23 B. Tulane and Dr. Zadina have not established Count 10 of Cytogel’s Second Am ended and Restated Counterclaim s has prescribed because LUTPA claim s are subject to the continuing tort doctrine. Tulane and Dr. Zadina argue Count 10 of Cytogel’s Second Am ended and Restated Counterclaim s has prescribed. The m aterial facts are in dispute. In its Second Am ended and Restated Counterclaim s, Cytogel argues Dr. Zadina and Tulane’s tort continued into 20 16, 160 less than one year before Cytogel first filed its Counterclaim s. 161 Tulane and Dr. Zadin a contest the factual basis for this allegation. 162 LUTPA states actions alleging unfair trade practices “shall be prescribed by one year running from the tim e of the transaction or act which gave rise to this right of action.”163 The statute does not m ention continuing violations. In Tubos de Acero, 164 the Fifth Circuit held, despite the statutory language, that the period was perem ptive, but the perem ption period begins at the en d of a continuing violation. 165 In 20 0 8, the Louisiana Suprem e Court, in Miller v. Conagra, Inc., explicitly refrained from deciding whether the period is prescriptive or perem ptive. 166 The lower court in Miller had found a continuing violation; the Louisiana Suprem e Court reversed, finding, based on the facts of the case, that there was no continuing violation. 167 160 R. Doc. 220 at 41, ¶ 136. Doc. 6. 162 R. Doc. 321-1 at 21, ¶ 28; R. Doc. 367-1 at 42, ¶ 28. 163 LA. R EV. STAT. § 51:140 9(E) (20 0 6). The statute has sin ce been am ended. 20 18 La. Acts 143 (Act 337). 164 292 F.3d 471 (5th Cir. 20 0 2). 165 Id. at 481– 8 2 (citing Benton, Benton & Benton v. La. Pub. Facilities Auth., 95-1367 (La. App. 1 Cir. 4/ 4/ 96), 672 So. 2d 720 , 723, w rit denied, 96-1445 (La. 9/ 13/ 96), 679 So. 2d 110 ; Capitol House Preservation Co. v. Perry m an Consultants, Inc., 98-1514 (La. App. 1 Cir. 12/ 10 / 98 ), 725 So. 2d 523; Fox v. Dupree, 633 So. 2d 612, 614 (La. Ct. App. 1993), w rit denied, 635 So. 2d 233 (La. 1994)). 166 Miller v. Conagra, Inc., 20 0 8-0 0 21 (La. 9/ 8/ 0 8), 991 So. 2d 445, 456. 167 Id. 161 R. 24 The Fifth Circuit’s decision in Tubos has been criticized by Louisiana appellate courts. 168 In their reply m em orandum , Tulane and Dr. Zadina urge this Court to decline to follow Tubos. 169 Because the Louisiana Suprem e Court has not ruled squarely on the issue, this Court is bound by the holding in Tubos that LUTPA claim s are subject to the perem ptive period, but the continuing violation doctrine does apply. 170 The Court finds the scope, duration, and end date of the alleged continuing unfair trade practices are disputed questions of fact. As a result, the Court denies Tulane an d Dr. Zadina’s Motion for Partial Sum m ary J udgm ent for Failure to State the Essential Elem ents of a Claim 171 and their Motion for Partial Sum m ary J udgm ent on Prescription Grounds 172 as to Count 10 . 173 V. W ith re s p e ct to Co u n t 11 o f Cyto ge l’s Se co n d Am e n d e d a n d Re s tate d Co u n te rclaim s , Cyto ge l h as faile d to e s tablis h Tu lan e im p ro p e rly in flu e n ce d o th e rs n o t to d e al w ith Cyto ge l. Cytogel brings Count 11 of its Second Am ended and Restated Counterclaim s against Tulane for tortious interference with business relations, alleging Tulane has “with 168 See, e.g., Glod v. Baker, 20 0 4-1483 (La. App. 3 Cir. 3/ 23/ 0 5), 899 So. 2d 642, 649, writ denied, 20 0 51574 (La. 1/ 13/ 0 6), 920 So. 2d 238 (“The cases upon which the Federal Fifth Circuit based Tubos com e entirely from the Louisian a First Circuit Court of Appeal[,] . . . [which] has m ade a jurisprudential com m itm ent to a strict definition of perem ption em bodied in the Civil Code and m anifested in its consistent decisions barring use of the continuin g violation doctrine to suspend perem ption .”). 169 R. Doc. 367 at 11– 12. 170 See CheckPoint Fluidic Sy s. Int'l, Ltd. v . Guccione, 8 88 F. Supp. 2d 780 , 792 (E.D. La. 20 12) (“This Court is therefore bound by the Fifth Circuit's holding that La. R.S. 51:140 9(E) is a perem ptive period, but it does not begin to run until a con tinuing violation ceases.”). In May 20 18, the Louisiana legislature changed the language of the statute to clarify violations are subject to "a liberative prescription " of one year. 20 18 La. Sess. Law Serv. Act 337. The accom panying legislative history sheds no light on the purpose of the am endm ent. The Court notes the possibility the legislature m eant to resolve the issue and announce LUTPA claim s are subject to liberative prescription , not perem ption. The Court fin ds whether LUTPA claim s are subject to a prescriptive period of one year or a perem ptive period of one year that accrues at the end of a continuin g tort, there is a genuine issue of m aterial fact as to when the prescription or perem ption period began. 171 R. Doc. 279. 172 R. Doc. 271. 173 The Court denies Tulane and Dr. Zadina’s Motion to Dism iss Cytogel’s First Am ended Counterclaim s, R. Doc. 74, as to Count 10 . 25 m alice an d ill will propounded false distinctions between the com pounds disclosed in the ’436 Patent . . . and Cytogel’s com pounds” in order to “prevent others from dealing with Cytogel.”174 The m aterial facts are undisputed. In discovery, Cytogel was unable to identify any third party with which Tulane prevented Cytogel from dealing. 175 Louisiana Civil Code Article 2315 authorizes recovery for dam ages in delictual actions. 176 “The Louisiana Suprem e Court has recognized a cause of action arising under article 2315 for tortious interference with business.”177 In Dussouy v. Gulf Coast Investm ent Corp., 178 the Fifth Circuit explain ed this cause of action: An individual, regardless of his m otive, has an absolute right to refuse to deal with another. The right to influence others not to deal, however, is not as broad. In that situation, Louisiana law protects the businessm an from “m alicious and wanton interference,” perm itting only interferences designed to protect a legitim ate interest of the actor. 179 The Fifth Circuit stated the plaintiff m ust show the defendant “im properly influenced others” not to deal with the plaintiff, that “the interference was im proper,” and that “m alice is a necessary elem ent of the cause of action.”180 This is a “very lim ited form of recovery” protecting businesspersons from “m alicious and wanton interference.”181 “It is not enough to allege that a defendant's actions affected plaintiff's business interests; the 174 R. Doc. 220 at 43, ¶ 144. R. Doc. 279-4 at 8 , ¶ 31– 32, R. Doc. 30 5-1 at 11, ¶ 31– 32. 176 LA. CIV. CODE art. 2315(A) (“Every act whatever of m an that causes dam age to another obliges him by whose fault it happened to repair it.”). 177 Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 60 1 (5th Cir. 1981) (citing Graham v. St. Charles St. Railroad, 47 La.Ann . 1656, 18 So. 70 7 (1895)). 178 Id. 179 Id. (citations om itted). 180 Id. at 60 2 (citations om itted). 181 Junior Money Bags, Ltd. v . Segal, 970 F.2d 1, 10 (5th Cir. 1992) (citing id. at 60 1). 175 26 plaintiff m ust allege that the defendant actually prevented the plaintiff from dealing with a third party.”182 Cytogel argues because Tulane granted Mirata Pharm aceuticals, L.L.C. an exclusive license for the ’436 Patent com pounds, Tulane “foreclose[ed] the ability of Cytogel to deal with third parties regarding the ’436 com pounds.”183 Cytogel presents no eviden ce Tulane or Dr. Zadina actually im properly influenced any third party to keep the third party from dealin g with Cytogel. As a result, the Court GRAN TS Tulane and Dr. Zadina’s Motion for Partial Sum m ary J udgm ent for Failure to State the Essential Elem ents of a Claim as to Count 10 . 184 The Court D EN IES AS MOOT Tulane and Dr. Zadina’s Motion for Partial Sum m ary J udgm ent on Prescription Grounds as to Count 10 . 185 VI. W ith re s p e ct to Co u n t 12 o f Cyto ge l’s Se co n d Am e n d e d an d Re s tate d Co u n te rcla im s , Cyto ge l h as fa ile d to e s tablis h e ith e r Tu lan e o r D r. Zad in a e n gage d in to rtio u s in te rfe re n ce w ith co n tra ctu al re latio n s , an d th e claim h as p re s cribe d . Cytogel brings Count 12 of its Second Am ended and Restated Counterclaim s against Tulane and Dr. Zadina for tortious interference with business relations. 186 Cytogel alleges two instances of tortious interference. 187 Cytogel first alleges Dr. Zadin a intentionally interfered with the contractual relationship between Cytogel and Tulane by causing Tulane to breach its obligations under the License Agreem ent. 188 Second, Cytogel 182 Mountain States Pipe & Supply Co. v. City of N ew Roads, La., No. CIV.A. 12-2146, 20 13 WL 3199724, at *2 (E.D. La. J un e 21, 20 13) (citing N ow ling v. Aero Servs. Int'l Inc., 752 F.Supp. 130 2, 1312 n . 7 (E.D.La.1990 ); Ustica Enters., Inc. v . Costello, 434 So.2d 137, 140 (La.Ct.App.198 3)). 183 R. Doc. 30 5 at 28 . 184 R. Doc. 279. 185 R. Doc. 271. 186 R. Doc. 220 at 44– 46, ¶ 148– 161. 187 Id. 188 Id. 27 alleges Tulane and the VA intentionally interfered with Dr. Zadina's Consulting Agreem ent with Cytogel by causing him to assign his interest in the '436 Patent to them . 189 A. Dr. Zadina is entitled to judgm ent on Count 12 as a m atter of law because Cytogel presents no eviden ce that he was a corporate officer of Tulane or that he owed Cytogel a duty. The facts m aterial to Cytogel’s tortious interference with contract claim against Dr. Zadin a are not in dispute. Tulane an d Cytogel were parties to the Licensing Agreem ent. 190 Dr. Zadina did not exceed the scope of his authority as a Tulane em ployee, and he did not knowingly com m it any act adverse to the interests of Tulane. 191 Cytogel has neither alleged Dr. Zadina is a corporate officer of Tulane nor specified any duty Dr. Zadina owed to Cytogel as a result of his em ploym ent with Tulane. Claim s for tortious interference with contract are delictual actions under Louisian a Civil Code Article 2315. 192 In 9 to 5 Fashions, Inc. v. Spurney , 193 the Louisiana Suprem e Court recognized for the first tim e an action under Article 2315 for tortious interference with contract, and lim ited the claim to “a corporate officer's duty to refrain from intentional and unjustified interferen ce with the contractual relation between his em ployer and a third person.”194 The elem ents of a tortious interference with contract claim are: (1) the existence of a contract or a legally protected interest between the plaintiff and the corporation; (2) the corporate officer's knowledge of the contract; (3) the officer's intentional inducem ent or causation of the corporation to breach the contract or his intentional rendition of its perform ance im possible or m ore burden som e; (4) absence of justification on the part of the officer; (5) causation of dam ages to the plaintiff by the 189 Id. R. Doc. 1 at 6, ¶ 20 ; R. Doc. 220 at 9, ¶ 17. 191 R. Doc. 279-4 at 9, ¶ 37– 38 , R. Doc. 30 5-1 at 12, ¶ 37– 38. 192 LA. CIV. CODE art. 2315(A) (“Every act whatever of m an that causes dam age to an other obliges him by whose fault it happened to repair it.”). 193 538 So. 2d 228 (La. 1989). 194 Id. at 234. 190 28 breach of contract or difficulty of its perform ance brought about by the officer. 195 The Fifth Circuit has consistently recognized the lim ited nature of claim s for tortious interference with contract claim under Louisiana law. 196 The Fifth Circuit has interpreted 9 to 5 and subsequent Louisiana appellate court cases as lim iting such actions to situations when there was a “narrow, individualized duty between the plaintiff and the alleged tortfeasor.”197 In this case, Cytogel has failed to establish Dr. Zadina was a corporate officer of Tulane. Cytogel has also failed to establish that Dr. Zadina owed Cytogel a narrow, individualized duty to refrain from unjustified interference with Cytogel’s contractual relations. As a m atter of law, Cytogel cannot show that Dr. Zadina tortiously interfered with the Licensing Agreem ent between Cytogel and Tulane. B. Tulane is entitled to judgm ent on Count 12 as a m atter of law because Cytogel presents no eviden ce that Tulane had a duty not to interfere in the Consulting Agreem ent. The facts m aterial to Cytogel’s tortious interference with contract claim against Tulane are not in dispute. Dr. Zadina and Cytogel were parties to the Consulting Agreem ent. 198 Cytogel has not specified any duty Tulane owed to Cytogel as a result of Dr. Zadin a’s Consulting Agreem ent. 195 Id. See, e.g., Petrohaw k Properties, L.P. v. Chesapeake Louisiana, L.P., 68 9 F.3d 380 , 395 (5th Cir. 20 12); Egorov, Puchinsky , Afanasiev & Juring v. Terriberry , Carroll & Yancey , 183 F.3d 453 (5th Cir.1999); Am erican W aste & Pollution Control Co. v. Brow ning– Ferris, Inc., 949 F.2d 138 4 (5th Cir.1991). 197 Petrohaw k, 689 F.3d at 395– 96 (citing N eel v. Citrus Lands of La., Inc., 629 So.2d 1299, 130 1 (La.Ct.App.1993); M D Care, Inc. v. Angelo, 672 So.2d 969, 973 (La.Ct.App.1996)). Cytogel cites N eel for the proposition that Louisiana law “should recogn ize som ething ‘far broader’” than the facts of 9 to 5. R. Doc. 30 5 at 28. Absent a contrary ruling by the Louisiana Suprem e Court, this Court is bound by the Fifth Circuit’s interpretation of Louisiana law in Petrohaw k. 198 R. Doc. 1 at 6– 9, ¶ 24– 36; R. Doc. 220 at 10 , ¶ 19. 196 29 Cytogel cannot show Tulane bore Cytogel any duty analogous to “a corporate officer's duty to refrain from intentional and unjustified interference with the contractual relation between his em ployer and a third person.”199 As a m atter of law, Cytogel cannot show that Tulane tortiously interfered with the Consulting Agreem ent between Cytogel and Dr. Zadina. C. Cytogel’s claim s for tortious interference with contractual relations has prescribed. The facts m aterial to prescription of Count 12 are also undisputed. Cytogel alleges Tulane intentionally interfered with Dr. Zadina's Consulting Agreem ent with Cytogel by causing him to assign his interest in the '436 Patent to them . 20 0 This occurred on August 22, 20 12. 20 1 Cytogel alleges Dr. Zadina intentionally interfered with Tulane’s obligations under the Licensing Agreem ent by using com pounds licen sed to Cytogel to test the '436 Patent. 20 2 The parties do not specify the date on which the testing occurred, but Cytogel alleges this occurred prior to the publication of the ’436 Patent. 20 3 The Patent Application was published on Decem ber 20 , 20 12, 20 4 and the ’436 Patent issued on May 6, 20 14. 20 5 “Delictual actions are subject to a liberative prescription of one year . . . run[ning] from the day injury or dam age is sustained.”20 6 The prescriptive period for delictual actions is subject to the continuing tort doctrine, and “in order to allege a continuing tort, 199 9 to 5, 538 So. 2d at 234. R. Doc. 220 at 46, ¶ 159. 20 1 R. Doc. 271-4 at 4, ¶ 10 ; R. Doc. 321-1 at 4, ¶ 10 . Cytogel contests the validity of the assign m ent. R. Doc. 321-1 at 4, ¶ 10 . 20 2 R. Doc. 220 at 44, ¶ 151. 20 3 R. Doc. 220 at 23, ¶ 63 (“The ’436 Patent also contains data for experim ents directly com parin g the claim ed com pound to com pounds claim ed in the licensed ’958 at ’578 Patents.”) 20 4 R. Doc. 271-4 at 4, ¶ 9; R. Doc. 321-1 at 4, ¶ 9. 20 5 R. Doc. 1 at 11– 12, ¶ 43– 47; R. Doc. 220 at 21, ¶ 57. 20 6 LA. CIV. CODE art. 3492. 20 0 30 . . . a plaintiff m ust allege both continuous action and continuous dam age.”20 7 Neither Dr. Zadin a’s assignm ent of the ’436 Patent to Tulane nor his using the ’958 at ’578 Patent com pounds to develop the ’436 Patent constitute continuous action. Both events occurred well over one year before Cytogel filed its Counterclaim s on Septem ber 7, 20 16. 20 8 Cytogel’s claim s for tortious interference with contractual relations have prescribed. As a result, the Court grants Tulane and Dr. Zadina’s Motion for Partial Sum m ary J udgm ent for Failure to State the Essential Elem ents of a Claim 20 9 and, alternatively, grants their Motion for Partial Sum m ary J udgm ent on Prescription Grounds 210 as to Count 12. VII. Be cau s e Co u n t 13 o f Cyto ge l’s Se co n d Am e n d e d an d Re s tate d Co u n te rcla im s is bas e d o n th e s am e facts as its o th e r co u n te rclaim s , Tu la n e is e n title d to ju d gm e n t as a m atte r o f law . Cytogel brings Count 13 of its Second Am ended and Restated Counterclaim s for unjust enrichm ent under Louisiana Civil Code Article 2298 . 211 Cytogel bases this claim on the sam e facts as its other claim s 212 and brings this claim in the alternative. 213 To support a claim for unjust enrichm ent under Louisiana law, a plaintiff m ust show five elem ents: (1) there m ust be an enrichm ent; (2) there m ust be an im poverishm ent; (3) there m ust be a connection between the enrichm ent and the resulting im poverishm ent; (4) there m ust be an absence of “justification” or “cause” for the enrichm ent and im poverishm ent; and (5) there m ust be no other rem edy at law 20 7 Thom as v. State Em ploy ees Group Benefits Program , App. 1 Cir.20 0 6, 934 So.2d 753, 20 0 5-0 392 (La.App. 1 Cir. 3/ 24/ 0 6). 20 8 R. Doc. 6. 20 9 R. Doc. 279. 210 R. Doc. 271. 211 R. Doc. 220 at 46. 212 Id. at ¶ 162. 213 Id. at ¶ 163. 31 available. 214 “The m ere fact that a plaintiff does not successfully pursue another available rem edy does not give the plaintiff the right to recover under the theory of unjust enrichm ent.’”215 “This is because [t]he unjust enrichm ent rem edy is only applicable to fill a gap in the law where no express rem edy is provided.”216 “It is not the success or failure of the other causes of action, but rather the existence of other cause of action, that determ ine whether unjust enrichm ent can be applied.”217 Unjust enrichm ent claim s cannot be m aintained in the alternative. 218 Cytogel brings its unjust enrichm ent claim under the sam e facts as its thirteen other counterclaim s. Unjust enrichm ent is inapplicable because the law provides other express rem edies. Cytogel cannot m aintain its unjust enrichm ent claim in the alternative. As a result, the Court grants Tulane’s Motion for Partial Sum m ary J udgm ent for Failure to State the Essential Elem ents of a Claim as to Count 13. 219 The Court den ies as m oot Tulane’s Motion for Partial Sum m ary J udgm ent on Prescription Grounds as to Count 13. 220 214 See JP Mack Indus. LLC, 970 F. Supp. 2d at 520 -21 (citing Carriere v . Bank of Louisiana, 95-30 58 (La. 12/ 13/ 96), 70 2 So. 2d 648). 215 W alters v. MedSouth Record Mgm t., LLC, 20 10 -0 351 (La. 6/ 4/ 10 ), 38 So. 3d 241, 242 (La. 20 10 ) (per curiam ). 216 Perez v. Utility Constructers, Inc., 20 16 WL 5930 877, at *1 (E.D. La. Oct. 12, 20 16) (internal citation s and quotations om itted). 217 Zaveri v. Condor Petroleum Corp., 27 F. Supp. 3d 695, 70 2 (W.D. La. 20 14) (quoting Garber v. Badon & Rainer, 20 0 7-1497 (La. App. 3 Cir. 4/ 2/ 0 8 ), 981 So. 2d 92, 10 0 , w rit denied, 20 0 8-1154 (La. 9/ 19/ 0 8), 992 So. 2d 943); see also Carriere v. Bank of Louisiana, 95-30 58 (La. 12/ 13/ 96), 70 2 So. 2d 648 , 673). 218 Cytogel cites several cases from other sections of this Court to argue it m ay maintain an unjust enrichm ent claim as an alternative claim . R. Doc. 30 5 at 30 (citing Perez v. Util. Constructors, No. 15-4675, 20 16 WL 5930 877 (E.D.La. Oct. 12, 20 16); McCullum v. McAlister’s Corp. of Mississippi, No. 0 8-50 50 , 20 10 WL 148990 7 (E.D.La. April 13, 20 10 ); May er v. Lam arque Ford, Inc., No. 0 0 -1325, 20 0 1 WL 175232 (E.D. La. February 16, 20 0 1)). These cases are contrary to holdings of the Louisiana Suprem e Court, see W alters, 38 So.3d at 242, and the Fifth Circuit, Ferrara Fire Apparatus, Inc. v. JLG Industries, Inc., 581 Fed.Appx. 440 , 444 (5th Cir. 20 14), and their abrogation was recogn ized in Andretti Sports Mktg. Louisiana, LLC v. N OLA M otorsports Host Com m ., In c., No. CV 15-2167, 20 15 WL 13540 0 96, at *8 (E.D. La. Dec. 2, 20 15). 219 R. Doc. 279. 220 R. Doc. 271. Tulane and Dr. Zadina do not argue the unjust enrichm ent claim itself has prescribed. Rather, they argue Cytogel cannot bring un just enrichm ent to circum vent prescription for its other claim s. 32 CON CLU SION For the foregoing reasons, IT IS ORD ERED that Plaintiff the Adm inistrators of the Tulane Educational Fund is entitled to judgm ent in its favor and against Defendant Cytogel Pharm a, LLC, on Counts 9 and 11– 13 of Defendant’s Second Am ended and Restated Counterclaim s. Counterclaim -Defendant Dr. J am es E. Zadina is entitled to judgm ent in his favor and against Cytogel Pharm a, LLC, on Count 12 of Defendant’s Second Am ended and Restated Counterclaim s. 221 IT IS FU RTH ER ORD ERED that the Motion to Dism iss Counts 8 and 10 – 13 of Defendant Cytogel Pharm a, LLC’s First Am ended Counterclaim s on Prescription Grounds, filed by the Adm inistrators of the Tulane Educational Fun d and Dr. Zadina, be and hereby is D EN IED as to Counts 8 and 10 of Defendant’s Second Am ended and Restated Counterclaim s and D EN IED AS MOOT as to Counts 11– 13 of Defendant’s Second Am ended and Restated Counterclaim s. 222 IT IS FU RTH ER ORD ERED that the Motion to Dism iss Cytogel’s First Am ended Counterclaim s, filed by Tulane and Dr. Zadina pursuant to Rule 12(b)(6) 223 of the Federal Rules of Civil Procedure, in which the United States joins, be and hereby is D EN IED IN PART AS MOOT as to Counts 5– 8, Count 9 as against the Adm inistrators of the Tulane Educational Fund, and Counts 10 – 13. 224 The Court need not address this argum ent because the Court does not hold that all of Cytogel’s other tort claim s have prescribed. 221 R. Docs. 271, 279. 222 R. Doc. 74. 223 The Court denied the portion of the m otion requesting dism issal of Counts 2 and 3 of Cytogel’s First Am ended and Restated Counterclaim s in its Order and Reasons of Septem ber 17, 20 18. R. Doc. 294. 224 R. Doc. 75. The Court will address in a separate order the rem ain ing portions of the order, in which Tulane, Dr. Zadina, and the United States m ove to dism iss Counts 1 and 4, Count 9 as against the United States, Cytogel’s request for injunctive relief, and Cytogel’s Third and Fourth Affirm ative Defenses, pursuant to Rule 12(b)(6). 33 IT IS FU RTH ER ORD ERED that the Motion to Dism iss Counts 1, 8, 9, and 14 of Cytogel’s First Am ended Counterclaim s, filed by the United States, be and hereby is D EN IED IN PART AS MOOT as to Count 8. 225 N e w Orle a n s , Lo u is ian a, th is 2 5th d ay o f Octo be r, 2 0 18 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 225 R. Doc. 30 1. The Court will address in a separate order the rem aining portions of the order, in which the United States m oves to dism iss Counts 1, 9, and 14 of Cytogel’s Second Am ended and Restated Counterclaim s. 34

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