Lifebrite Laboratories, Llc v. Cooksey

REPLY BRIEF re MOTION to Appoint Custodian MOTION for Partial Summary Judgment And Declaratory Relief

N.D. Ga.September 20, 2016

4840-9559-5832.8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION LIFEBRITE LABORATORIES, LLC, Plaintiff, v. NINA H. COOKSEY, Defendant. Civil Action File No.: 1:15-cv-04309-TWT DEFENDANT NINA H. COOKSEY’S REPLY BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND DECLARATORY RELIEF Defendant/Counter-Plaintiff, Nina H. Cooksey (“Cooksey”), respectfully submits this reply brief in support of her motion for partial summary judgment and declaratory relief. ([Doc. 47]). ARGUMENT AND CITATION OF AUTHORITIES A. INTRODUCTION As shown by Cooksey’s memorandum of law filed in support of her motion [Doc. 47-1], and as reiterated below, Cooksey’s motion should be granted as to (i) Count Five of her counterclaim, and (ii) all counts of LifeBrite’s Complaint. LifeBrite’s response to Cooksey’s motion [Doc. 56] fails to establish that any genuine issue of material fact requires a trial on LifeBrite’s claims. Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 1 of 18 4840-9559-5832.8 2 B. THE EVIDENCE ESTABLISHES, AS A MATTER OF LAW, THAT THE EMPLOYMENT AGREEMENT IS UNENFORCEABLE. 1. Prior Communications And Writings Are Relevant To Show No Valid Employment Agreement Ever Went Into Existence. As a threshold matter, LifeBrite invokes the parol evidence rule as to certain evidence presented by Cooksey, arguing that, “any parol evidence is admissible only to the extent terms [of the Employment Agreement] are ambiguous.” ([Doc. 56], p. 4).1 LifeBrite is mistaken. In cases such as this one, “[t]he circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement, and courts are free to consider such extrinsic evidence.” McReynolds v. Krebs, 290 Ga. 850, 853, 725 S.E.2d 584 (2012); see BellSouth Advertising & Pub. Corp. v. McCollum, 209 Ga. App. 441, 444-445, 433 S.E.2d 437 (1993) (parol evidence is admissible “to show no valid agreement ever went into existence.”) (quotation marks and citation omitted); E. Allan Farnsworth, Contracts § 7.4, at 480 (2d ed. 1990) (the parol evidence rule “does not come into play until the existence of an enforceable written agreement has been shown”). 1 For purposes of Cooksey’s motion, as the party relying on the Employment Agreement, LifeBrite has the burden of proving the contract’s existence and its terms. See Jackson v. Easters, 190 Ga. App. 713, 714, 379 S.E.2d 610 (1989). Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 2 of 18 4840-9559-5832.8 3 Here, Cooksey has presented evidence surrounding the signing of the Employment Agreement to establish whether there was mutual assent to its terms and whether the Employment Agreement, in fact, constitutes a valid contractual agreement. See Jackson, 190 Ga. App. at 714-715 (“[i]f there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement . . . it must follow that a valid and binding contract was not made . . . .”).2 Contrary to LifeBrite’s assertions, the proffered evidence is admissible for such purpose. See Cox Broadcasting Corp. v. National Collegiate Athletic Ass’n, 250 Ga. 391, 395, 297 S.E.2d 733 (1982) (“After considering the writings and discussions of the parties surrounding the making of the contract, it is clear that there was no meeting of the minds[.]”). 2. The Lack Of A Definite Formula Voids The Employment Agreement. Next, LifeBrite ignores H&R Block E. Enterprises, Inc. v. Morris, 606 F.3d 1285 (11th Cir. 2010), Cashatt v. Merrimac Assocs., Inc. 853 F. Supp. 2d 1244 (N.D.Ga. 2012), and other cases Cooksey has cited for the proposition that an employment contract was never formed here because Cooksey’s compensation was 2 LifeBrite concedes “the amount of compensation paid to an employee for services is an essential element of an employment contract[.]” ([Doc. 56], pp. 6-7). Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 3 of 18 4840-9559-5832.8 4 not specific enough to be “definitely and objectively ascertainable” so as to form the basis of a contract. ([Doc. 47-1], pp. 15-16, n.21). LifeBrite cannot escape the fact that, over twenty years ago, the Georgia Supreme Court considered what constitutes an enforceable promise of future compensation in Arby’s, Inc. v. Cooper, 265 Ga. 240, 454 S.E.2d 488 (1995). There, the plaintiff filed suit to recover unpaid annual bonuses from his former employer. In holding that the employer’s promise to pay the bonuses was unenforceable, the Supreme Court reasoned that [t]o be enforceable, a promise of future compensation must be made at the beginning of the employment. However, the promise of future compensation must also be for an exact amount or based upon a “formula or method for determining the exact amount of the bonus.” Id., 265 Ga. at 241 (emphasis added) (citations omitted). The rationale behind this rule is that “the sum of money to be paid for performance of services under a contract should be definitely and objectively ascertainable from that contract.” Edwards v. Central Ga. HHS, 253 Ga. App. 304, 307, 558 S.E.2d 815 (2002) (punctuation and citations omitted). Here, the undisputed evidence demonstrates that a definite method for calculating Cooksey’s commissions was never established. (See [Doc. 41-2], ¶ 56 (“The method for calculating ‘net profit’ was not described by the terms of Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 4 of 18 4840-9559-5832.8 5 Cooksey’s Employment Agreement.”).3 The Employment Agreement does not identify an exact amount of commissions to be paid Cooksey, nor does it identify a formula or method for determining such an amount. See id.; Jones v. Hous. Auth. of Fulton Cnty., 315 Ga. App. 15, 20, 726 S.E.2d 484 (2012).4 And LifeBrite has not offered any evidence that the parties reached an agreement as to such an amount, formula, or method in writing. Id. Thus, because the amount of Cooksey’s compensation is not definitely and objectively ascertainable from the Employment Agreement, the Agreement is unenforceable and Cooksey is entitled to judgment as a matter of law.5 3 See also Fifth Affidavit of Nina H. Cooksey (“Fifth Cooksey Aff.”), attached hereto as Exhibit A, at ¶¶ 8, 10-14; [Doc. 47-5], ¶¶ 7-17; [Doc. 60-1], ¶ 18. 4 The “net profit” language in the Employment Agreement “lacks such definite terms and certainty that no court may determine what has been agreed upon . . . . If the parties do not create a complete binding agreement, the courts are powerless to do it for them, or afford a remedy for a breach.” Southeastern Underwriters v. AFLAC, 210 Ga. App. 444, 446, 436 S.E.2d 556 (1993). 5 See Jones, 315 Ga. App. at 20; Arby’s, Inc., 265 Ga. at 241; Vanran Commc’ns Servs., Inc. v. Vanderford, 313 Ga. App. 497, 498-499, 722 S.E.2d 110 (2012); Jackson v. Ford, 252 Ga. App. 304, 306-307, 555 S.E.2d 143 (2001); Burns v. Dees, 252 Ga. App. 598, 602-606, 557 S.E.2d 32 (2001); Carter v. Hubbard, 224 Ga. App. 375, 385, 480 S.E.2d 382 (1997); see also Edwards, 253 Ga. App. at 306-307 (employee’s affidavit was insufficient evidence of agreement as to amount of bonus to overcome employer’s motion for summary judgment on employee’s breach of contract claim); Laverson v. Macon Bibb County Hosp. Authority, 226 Ga. App. 761, 762-763, 487 S.E.2d 621 (1997) (“Because [plaintiff] (footnote continued on next page) Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 5 of 18 4840-9559-5832.8 6 LifeBrite’s citation to McLean v. Continental Wingate Co., 212 Ga. App. 356, 442 S.E.2d 276 (1994), does not require a different result. The employment agreement in McLean entitled the claimant to a specific percentage of corporate net profits, which, according to the agreement, were to be determined by the company “in its sole discretion.” Id. at 357. For a period of several years, the company used a particular method for calculating net profits. The company then changed its calculation method, significantly reducing the claimant’s compensation. Id. at 358. The trial court found the agreement was too vague to be enforced and the Georgia Court of Appeals reversed, holding that although the contract lacked a formula for calculating net profits, “the parties, based on their past dealings, understood the meaning of the term ‘net proceeds,’ and the method of establishing the percentage of profits due for [the employee’s] services.” Id. at 359. Conversely, LifeBrite has pointed to no similar “past dealings” or understandings with Cooksey that provide certainty to the commissions term at issue here.6 failed, as respondent on motion for summary judgment, to provide evidence of a definite, enforceable salary term, he failed to show the existence of a valid contract, and the trial court did not err in granting summary judgment[.]”). 6 LifeBrite argues the Court “should use the parties’ conduct under the Employment Agreement to resolve the ambiguity as to the calculation of ‘net profit.’” ([Doc. 56], p. 7). However, it is undisputed that Cooksey received only one commission check from LifeBrite, on or after September 10, 2015, before (footnote continued on next page) Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 6 of 18 4840-9559-5832.8 7 Under the circumstances, this case is an appropriate one for declaratory relief.7 A finding that the Employment Agreement is unenforceable due to lack of mutual assent will terminate the uncertainty giving rise to this proceeding, enable Cooksey to seek and accept employment in the industry, and protect her from future harm. See Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985); Lapolla Industries, Inc. v. Hess, 325 Ga. App. 256, 258, 750 S.E.2d 467 (2013). For these reasons, Cooksey’s motion should be granted as to Count Five of her counterclaim. C. THE EVIDENCE DOES NOT CREATE A GENUINE DISPUTE OF MATERIAL FACT AS TO COOKSEY’S MATERIAL BREACH OF THE EMPLOYMENT AGREEMENT OR LIFEBRITE’S CLAIMED DAMAGES. Should the Court find the Employment Agreement to be unenforceable in section B., supra, then LifeBrite’s claims for injunctive relief (Count 1) and breach of contract (Count 2) fail as a matter of law because those claims are based upon the restrictive covenants in the Agreement. However, if the Court finds the resigning shortly thereafter on September 15, 2015. (Ex. A, ¶ 14; [Doc. 60-1], ¶ 18; [Doc. 42-4], p. 312; [Doc. 43-1], pp. 122-124). Thus, unlike McLean, where the parties had several years of past dealings, the parties’ conduct here provides no basis to find an enforceable agreement. 7 See State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 501, 556 S.E.2d 114 (2001); Enron Capital & Trade Resources Corp. v. Pokalsky, 227 Ga. App. 727, 729, 490 S.E.2d 136 (1997). Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 7 of 18 4840-9559-5832.8 8 Employment Agreement is enforceable, the Court still should find Cooksey is entitled to summary judgment on those claims. 1. No Evidence Exists Of Any Breach Of Sections 7.1.1, 7.1.2, Or 7.1.3. LifeBrite contends “[t]he evidence in this case shows that . . . after resigning from LifeBrite [Cooksey] personally visited all three clinics to solicit their business on behalf of a subsequent competing employer (Medlogic) . . . and thereby breached the non-solicitation provision Section 7.1.1 of her Employment Agreement[.]” ([Doc. 56], p. 11).8 Once again, LifeBrite is mistaken. It is undisputed that Cooksey visited PHCC, PCM, and AFP after resigning from LifeBrite in order to inform them, as a professional courtesy, that she no longer would be servicing their accounts. (Ex. A, ¶¶ 3-5).9 However, there is no competent record evidence that Cooksey solicited any business from PHCC, PCM, or AFP during those visits or otherwise. (Ex. A, ¶¶ 3-4; [Doc. 53-1], pp. 10-15, 23-38; [Doc. 47-4], ¶¶ 3-7; [Doc. 42-2], pp. 95-96, 102-112, 128). 8 Cooksey testified she did not initiate contact with Kristina Ivey regarding PCM’s business after resigning from LifeBrite. ([Doc. 15-1], ¶¶ 28-29; [Doc. 42-2], pp. 109-111, 128). LifeBrite now appears to concede this fact, as its response does not mention Ms. Ivey or point to any evidence refuting Cooksey’s testimony. 9 Dr. Daniel Scott, III (“Dr. Scott”), who is the owner of AFP, has reason to visit with Cooksey apart from business; he also has served as Cooksey’s family physician for more than a decade. (Ex. A, ¶ 5; [Doc. 47-4], p. 2, ¶ 3). Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 8 of 18 4840-9559-5832.8 9 LifeBrite’s entire argument rests on the fact that PHCC, PCM and AFP each stopped sending specimens to LifeBrite at some point after Cooksey resigned; therefore, the argument goes, Cooksey must have solicited their business for her next employer. However, this argument ignores that PHCC stopped sending specimens to LifeBrite because of the electronic interface and other issues identified by PHCC’s owner, Dr. Terry O. Harrison, none of which relate to Cooksey. ([Doc. 53-1], pp. 24-25, 30-33, 40, 43-45).10 LifeBrite’s argument also ignores that PCM continued sending specimens to LifeBrite for more than a month after Cooksey resigned, until October 21, 2015, before PCM apparently shut down. ([Doc. 43-1], p. 125). As far as Cooksey knows, PCM sent specimens to LifeBrite “until the end.” ([Doc. 42-2], pp. 108-109, 128). LifeBrite ignores these facts. Admittedly, AFP did send at least one specimen to MedLogic at some point after Cooksey resigned from LifeBrite.11 However, there is no evidence Cooksey solicited that business. (Ex. A, ¶¶ 4-5). Rather, Dr. Scott testified that he “alone 10 LifeBrite further ignores that (1) PHCC went back to using its former lab, Millennium Health, which has no affiliation with Cooksey ([Doc. 53-1], pp. 10-15, 23-38); and (2) Dr. Harrison decides where PHCC sends its specimens ([Doc. 53- 1], p. 40). 11 Cooksey acknowledged this fact at deposition. Notably, however, LifeBrite issued a subpoena to AFP on June 23, 2016. ([Doc. 38]). In response, AFP produced no evidence showing that any specimens were sent by AFP to MedLogic. Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 9 of 18 4840-9559-5832.8 10 made the decision to cease doing business with LifeBrite” and that his decision “was not influenced in any way by anything Mrs. Cooksey said or did with regard to LifeBrite.” ([Doc. 47-4], p. 3, ¶ 5).12 According to Dr. Scott, “[his] relationship with Mrs. Cooksey is what led [him] to use LifeBrite in the first instance[,]” and, following her resignation, Dr. Scott “had no reason to continue using LifeBrite to process specimens from AFP.” (Id., ¶ 6).13 Moreover, Dr. Scott testified that “[n]obody from LifeBrite has contacted [him] following Mrs. Cooksey’s departure in order to try to keep or win [his] or AFP’s business.” (Id., ¶ 7). Finally, while LifeBrite has not contacted Dr. Scott following Cooksey’s resignation, a number of other labs in the area—including AEL Lab, Quest, and Millennium Health— have visited the clinic in an attempt to win AFP’s business. ([Doc. 42-1], pp. 30-31). LifeBrite points to no evidence refuting these facts. Accordingly, absent any evidence of solicitation or other wrongful conduct on the part of Cooksey, the Court should grant summary judgment on LifeBrite’s 12 AFP was not currently or previously a LifeBrite client when the Employment Agreement was executed. ([Doc. 42-2], pp. 72-73, 121). Thus, even if Cooksey had solicited AFP after resigning from LifeBrite, which she has not, Cooksey still would not be in breach of Section 7.1.1. 13 AFP currently uses multiple laboratories to process specimens, none of whom has any affiliation with Cooksey. ([Doc. 42-1], pp. 9-10, 13, 23-24, 29-31). Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 10 of 18 4840-9559-5832.8 11 claim for breach of Sections 7.1.1, 7.1.2, and 7.1.3. See Fine v. Communication Trends, Inc., 305 Ga. App. 298, 699 S.E.2d 623, 633 (2010). 2. Section 7.2 Of The Employment Agreement Is Unenforceable. LifeBrite does not dispute that Section 7.2 of the Employment Agreement contains no “good faith estimate” of the geographic area applicable at the time of termination, and that it otherwise fails to provide “fair notice of the maximum reasonable scope of the restraint” in violation of O.C.G.A. §13-8-53(c). Instead, LifeBrite argues that, “if the Court deems the Agreement needs a narrow geographic limitation, [Section 7.2] is subject to modification by this Court[.]” ([Doc. 56], p. 8). Notably, while LifeBrite criticizes the cases cited by Cooksey as having arisen “prior to the 2011 Restrictive Covenants Act[,]” ([Doc. 56], p. 8), LifeBrite cites to no case authority that would allow the Court to insert a post- termination geographic limitation into an employment contract where none exists. Cf. Atlanta Bread Co. Intl., Inc. v. Lupton–Smith, 285 Ga. 587, 589, 679 S.E.2d 722, 725 (2009) (“a court cannot insert a territorial limitation to render it enforceable”), citing New Atlanta Ear, Nose & Throat Assoc., P.C. v. Pratt, 253 Ga. App. 681(2), 560 S.E.2d 268 (2002) (“[t]he ‘blue pencil’ marks, but it does not write”); O.C.G.A. § 13-8-51(11) & (12) (defining “Modification” and “Modify”). Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 11 of 18 4840-9559-5832.8 12 Under the circumstances, on this issue of apparent first impression, Cooksey respectfully submits that inserting a geographic limitation into Section 7.2 would run afoul of O.C.G.A. § 13-8-53(d) and Georgia public policy. See O.C.G.A. § 13- 8-51(11) & (12); Atlanta Bread Co., 679 S.E.2d at 724 (“In Georgia, contracts in unreasonable restraint of trade are contrary to public policy and void.”).14 3. LifeBrite Has Not Produced Evidence Of Compensable Damages. “[I]n Georgia, it is well settled that anticipated profits are too speculative and uncertain to be recoverable unless they are based on an actual track record of sales.” EZ Green Assocs., LLC v. Georgia-Pacific Corp., 331 Ga. App. 183, 187- 188, 770 S.E.2d 273, 277 (2015) (citation omitted). This requirement is based on the rationale that “[t]he profits of a commercial business are dependent on so many hazards and chances, that unless the anticipated profits are capable of ascertainment, and the loss of them traceable directly to the defendant’s wrongful act, they are too speculative to afford a basis for the computation of damages.” Id. 14 The restrictive covenants also should not be enforced because LifeBrite has unclean hands (Ex. A, ¶¶ 15-17; [Doc. 15-1], ¶ 43; [Doc. 18-1], pp. 2-18, 46-49; [Doc. 49-1], p. 3); Morgan Stanley DW, Inc. v. Frisby, 163 F. Supp. 2d 1371, 1380 (N.D.Ga. 2001)); and because of the economic hardship that would be imposed upon Cooksey. (O.C.G.A. § 13-8-58(d); [Doc. 15-1], ¶ 40; [Doc. 47-5], ¶¶ 2-6). Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 12 of 18 4840-9559-5832.8 13 Here, as noted above, there is no evidence that Cooksey caused PHCC, PCM, or AFP to stop doing business with LifeBrite; thus, the damages being claimed by LifeBrite cannot be traced solely to Cooksey’s alleged breach of the Employment Agreement. O.C.G.A. § 13-6-8. Furthermore, the number of specimens referred from a clinic varies greatly from month-to-month ([Doc. 42-1], pp. 14-16; [Doc. 53-1], p. 12; [Doc. 42-5], p. 7), and LifeBrite had no contract with AFP, PHCC, or PCM, obligating them to send any specimens to LifeBrite.15 Moreover, no evidence exists that LifeBrite has tried to keep any of these clients following Cooksey’s resignation. ([Doc. 47-4], ¶ 7; [Doc. 53-1], pp. 36- 37). Nor has LifeBrite presented evidence of any lost sales relating to any other clients or potential clients with whom Cooksey did business after leaving LifeBrite. (See [Doc. 43-1], p. 15 (“LifeBrite’s lost clients and referrals cannot be quantified[.]”; Ex. A, ¶ 7). Under such circumstances, LifeBrite’s claimed damages are simply too speculative, remote, and uncertain to be recoverable. EZ Green Assocs., 331 Ga. App. at 187-188, 770 S.E.2d at 277. 15 LifeBrite never paid Cooksey commissions for 398 of the 424 specimens she referred ([Doc. 15-1], ¶¶ 41-42); thus, there is no evidence of LifeBrite’s projected expenses associated with its lost profits claim as the law requires. Bldg. Materials Wholesale v. Triad Drywall, 287 Ga. App. 772, 776, 653 S.E.2d 115 (2007). Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 13 of 18 4840-9559-5832.8 14 D. THE EVIDENCE DOES NOT CREATE A GENUINE DISPUTE OF MATERIAL FACT AS TO LIFEBRITE’S REMAINING CLAIMS. Even though Cooksey’s resignation from LifeBrite may have motivated PHCC, PCM, and AFP to end the relationship, for tortious interference claims, the law requires proof that Cooksey “induced a third party or parties not to enter into or continue a business relationship with the plaintiff that thereby caused financial injury.” Lyman v. Cellchem Int’l, LLC, 335 Ga. App. 266, 269, 779 S.E.2d 474 (2015) (emphasis in original). LifeBrite has identified no such proof here.16 LifeBrite’s breach of fiduciary duty claim fails because Cooksey was, at best, merely an employee of LifeBrite, not an officer or agent who could contractually bind the company. Avion Sys., Inc. v. Bellomo, No. A16A0060, 2016 Ga. App. LEXIS 442, *3-*6 (July 14, 2016); [Doc. 42-2], p. 164 (Section 6, “No Contractual Authority.”)).17 LifeBrite has not identified any evidence creating a disputed issue of fact that Cooksey had such authority, and summary judgment on 16 LifeBrite also has failed to identify any evidence of “improper action or wrongful conduct” that can be attributed to Cooksey. See Earthcam, Inc. v. Oxblue Corp., 49 F. Supp. 3d 1210, 1233 (N.D. Ga. 2014). 17 LifeBrite asserts “[t]he uncontroverted evidence shows that Cooksey was employed by LifeBrite’s direct competitor . . . simultaneously during her employment with LifeBrite.” ([Doc. 56], p. 21). Once again, LifeBrite is mistaken. (See [Doc. 60-1], ¶¶ 3-16; Ex. A, ¶ 6) (Cooksey’s employment with MedLogic began on September 15, 2015). Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 14 of 18 4840-9559-5832.8 15 its breach of fiduciary duty claim should therefore be granted. Id.; see Nilan’s Alley v. Ginsburg, 208 Ga. App. 145, 145-146, 430 S.E.2d 368 (1993). Finally, having shown the restrictive covenants to be unenforceable and that summary judgment is appropriate on LifeBrite’s tortious interference claims, there are no grounds for injunctive relief. Matthew Focht Enterprises, Inc. v. Lepore, 1:12-CV-04479-WSD, 2013 WL 4806938, *18 (N.D.Ga. Sept. 9, 2013). And, without proof of compensatory damages, there is no basis for ancillary claims for attorney fees. Whiteside v. Decker, 310 Ga. App. 16, 20, 712 S.E.2d 87 (2011).18 Respectfully submitted this 20th day of September, 2016. By: /s/ Keith M. Kodosky Keith M. Kodosky Georgia Bar No. 404814 LEWIS BRISBOIS BISGAARD & SMITH LLP 1180 Peachtree Street NE, Suite 2900 Atlanta, GA 30309-3521 Tel: 404-348-8585 Fax: 404-467-8845 keith.kodosky@lewisbrisbois.com Attorneys for Defendant/Counterclaim-Plaintiff Nina H. Cooksey 18 LifeBrite’s Response references Section 8.6 of the Employment Agreement as allowing recovery of attorneys’ fees ([Doc. 56], p. 12); however, LifeBrite’s Complaint does not assert a claim for fees under the Employment Agreement. (See Compl., ¶¶ 36-38) (invoking O.C.G.A. § 13-6-11 only). Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 15 of 18 4840-9559-5832.8 CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(D), counsel for Defendant certifies that the text of DEFENDANT NINA H. COOKSEY’S REPLY BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND DECLARATORY RELIEF has been prepared with one of the font and point selections (i.e., Times New Roman, 14 Point) approved by this Court in Local Rule 5.1(b). This 20th day of September, 2016. By: /s/ Keith M. Kodosky Keith M. Kodosky Georgia Bar No. 404814 LEWIS BRISBOIS BISGAARD & SMITH LLP 1180 Peachtree Street NE, Suite 2900 Atlanta, GA 30309-3521 Tel: 404-348-8585 Fax: 404-467-8845 keith.kodosky@lewisbrisbois.com Attorneys for Defendant/Counterclaim- Plaintiff Nina H. Cooksey Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 16 of 18 4840-9559-5832.8 CERTIFICATE OF SERVICE I hereby certify that on September 20, 2016, I electronically filed the foregoing DEFENDANT NINA H. COOKSEY’S REPLY BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND DECLARATORY RELIEF with the Clerk of Court using the CM/ECF system which will send notification of such filing to the attorneys of record at their e-mail addresses on file with the Court and via U.S. Mail postage prepaid to the following: Peter V. Hasbrouck, Esq. Chris J. Perniciaro, Esq. Martenson, Hasbrouck & Simon, LLP 3379 Peachtree Road, NE, Suite 400 Atlanta, Georgia 30326 This 20th day of September, 2016. By: /s/ Keith M. Kodosky Keith M. Kodosky Georgia Bar No. 404814 LEWIS BRISBOIS BISGAARD & SMITH LLP 1180 Peachtree Street NE, Suite 2900 Atlanta, GA 30309-3521 Tel: 404-348-8585 Fax: 404-467-8845 keith.kodosky@lewisbrisbois.com Attorneys for Defendant/Counterclaim- Plaintiff Nina H. Cooksey Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 17 of 18 4840-9559-5832.8 3 Case 1:15-cv-04309-TWT Document 65 Filed 09/20/16 Page 18 of 18 Case 1:15-cv-04309-TWT Document 65-1 Filed 09/20/16 Page 1 of 9 Case 1:15-cv-04309-TWT Document 65-1 Filed 09/20/16 Page 2 of 9 Case 1:15-cv-04309-TWT Document 65-1 Filed 09/20/16 Page 3 of 9 Case 1:15-cv-04309-TWT Document 65-1 Filed 09/20/16 Page 4 of 9 Case 1:15-cv-04309-TWT Document 65-1 Filed 09/20/16 Page 5 of 9 Case 1:15-cv-04309-TWT Document 65-1 Filed 09/20/16 Page 6 of 9 Case 1:15-cv-04309-TWT Document 65-1 Filed 09/20/16 Page 7 of 9 Case 1:15-cv-04309-TWT Document 65-1 Filed 09/20/16 Page 8 of 9 Case 1:15-cv-04309-TWT Document 65-1 Filed 09/20/16 Page 9 of 9