Kantsevoy v. Lumenr LLC

Facts

LumenR (D) was founded by Gregory Piskun, M.D., and focused on developing a medical device that would aid in surgery to remove cancerous lesions and tumors from the colon, stomach, and esophagus; The LumenR Tissue Retractor System (Tissue Retractor). Piskun approached Kantsevoy (P) at a convention to discuss the Tissue Retractor. P claims that on June 12, 2010, Piskun asked him to formally join the development team. P alleges that Piskun made an 'offer' that 'included a promise to pay P the lesser of $500 per hour or $2500 per day for his consulting services' that also included an equity ownership package to be mutually and reasonably agreed upon later. P alleged acceptance of the offer. D alleges a different story where Piskun 'sent an email to P inquiring regarding P's interest in consulting on the project.' P said he was interested and there were no further communications. The parties conducted some business on other issues, and eventually, things got very caustic with lawsuits coming from both sides. D answered P's complaint and counterclaimed. The Court issued a Scheduling Order on March 23, 2017. It set a deadline of May 24, 2017, for the joinder of additional parties and amendment of pleadings. A deadline of October 23, 2017, was set for completion of discovery, and the dispositive pretrial motions deadline was set for November 20, 2017. The court extended the deadlines on three different occasions. D moved to amend its Answer and Counterclaims ten days after the close of the discovery period that had been extended three times, six days after the deadline for dispositive motions, and about six months beyond the deadline for amendment of pleadings. D seeks to add a counterclaim for Breach of Contract - Third Party Beneficiary. P points out that D did not move to amend its pleadings until long after the deadline of May 24, 2017, that this Court set for doing so and he argues that LumenR's belated amendment fails Fed. R. Civ. P. 16's 'good cause' standard for modifying a scheduling order. D asserts that 'the relevant facts were not fully known until well after the deadline of May 24, 2017, had passed.'

Contracts case: D was founded by Gregory Piskun, M.D. D is developing a medical device that would aid in surgery to remove cancerous lesions and tumors from the colon, stomach, and esophagus. Piskun approached P at a convention to discuss the Tissue Retractor, and P said that the device could be useful. Piskun 'invited P to formally join the [D development team.' P alleges that Piskun made an 'offer' that 'included a promise to pay P the lesser of $500 per hour or $2500 per day for his consulting services.' P insists that the 'offer' 'also included a promise to 'create an equity ownership package.'' The precise amount of which would be mutually and reasonably agreed upon later. D agrees that Piskun and P met and that Piskun 'sent an email to P inquiring regarding P's interest in consulting on the project.' The email stated:

    Sergey - Thank you, It is an honor to get you involved. Let's start by introducing the technology to you

    If this is acceptable to you we would compensate your consulting time with $500/hour and $2500/day if need to spend a day on the company's business (meetings, labs, clinical studies, etc.) If it happens that you are really excited about the technology and believe in its future, we can create an equity ownership package which may be a very substantial exit for you.

    Please let me know your thoughts. 

D replied: Yes, I am interested. D claims that when they met again in June 2011, P expressed interest in the Tissue Retractor. Piskun and D executed an agreement as to a different project, concerning the 'HET' project. The HET Agreement specified that P would receive $500 for each product evaluation form he submitted and a $2,000 honorarium for any speaking engagement he attended on behalf of the HET project. The HET Agreement also provided equity compensation to P of 50,000 shares. The HET Agreement contained a confidentiality provision and a requirement that P assign to HET any intellectual property rights obtained in the course of the HET project. Piskun's email forwarding the HET Agreement stated that 'we will create the identical agreement for D when ready to execute.' D asserts that P executed the HET Agreement, but then later asked to rescind it.  D alleges that P still wished to consult for D on the Tissue Retractor, and P suggested lowering his per diem rate to $2,000. When D's patent application for the Tissue Retractor was filed, at an unspecified time, P was named as a co-inventor, but he assigned all his rights in the product to a corporation called 'Macroplata, Inc.,' and his rights were subsequently assigned to D. P states that he signed away his intellectual property rights, 'for a symbolic fee of $1 and 'other good and valuable consideration,'' which P alleges was understood to include an ''equity ownership package.'' P conducted several tests of the Tissue Retractor on animals and received seven payments from D. P 'expressed interest in conducting human clinical trials' with the Tissue Retractor, but that he 'insisted on not being compensated by D as this would allow him to publish peer reviewed articles, and participate in seminars and speaking engagements while being free of financial conflicts of interest.' D alleges that it 'agreed to have P self-sponsor clinical work,' and 'supported P's efforts' with sample devices, technical support, and selective reimbursements. P was expected to 'provide copies of the completed clinical trial data sheets and to publish the results of his work.' P never provided the clinical trial data sheets. P continually 'represented to D, to peer reviewed publications, to professional organizations and . . . to the [Institutional Review Board] of Mercy Hospital, that P had no relevant financial disclosures and no financial conflicts.' In April of 2016, P begin 'making unwarranted, unjustified and highly unethical demands for substantial retroactive payment, including company equity.' P alleges that he was not paid for his work in accordance with the June 2010 'agreement,' but was instead underpaid. P cites two occasions, in 2015 and 2016, on which Piskun 'confirmed that P would be provided an equity stake in D,' but that 'the exact value of that interest would have to wait for the sale of the technology.' D claims P threatened to ''destroy' D to his professional colleagues' if his demands were not met, and further threatened to destroy or compromise the data he had collected during his clinical trials. P sued D and D countersued. Both parties have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).

Issues

Rule of Law

Holding and Decision

Legal Analysis

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