Southern Field Maintenance and Fabrication, LLC v. Killough et al

Filing 32

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, it is ORDERED that the 23 Motion to Dismiss is hereby DENIED. The defendants have until February 12, 2019 to file an answer to the amended complaint. Signed by Honorable Judge Gray M. Borden on 1/29/2018. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
SOUTHERN FIELD MAINTENANCE )
& FABRICATION LLC,
)
)
Plaintiff,
)
)
v.
)
)
WALTER ERIC KILLOUGH, and
)
TOTAL MAINTENANCE SERVICES, )
)
Defendants.
)

CASE NO. 2:18-cv-581-GMB
[wo]

MEMORANDUM OPINION AND ORDER
Pending before the court is the Motion to Dismiss First Amended Complaint filed
by Defendants Walter Eric Killough and Total Maintenance Services (“TMS”). Doc. 23.
Plaintiff Southern Field Maintenance & Fabrication, LLC (“Southern Field”) filed this
lawsuit on June 15, 2018, bringing several state and federal claims arising out of actions
by its former employee, Killough, and his new business, TMS. Doc. 1. Pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the parties have consented to the
jurisdiction of the undersigned United States Magistrate Judge. Docs. 19 & 20. This court
previously granted in part and denied in part a motion to dismiss the complaint. Doc. 21 at
20. The instant motion is directed to the amended complaint filed by Southern Field with
leave of court. Doc. 22. After careful consideration of the parties’ submissions and the
applicable law, for reasons to be discussed below, the motion to dismiss (Doc. 23) is due
to be DENIED.

I.

JURISDICTION AND VENUE

The court has subject-matter jurisdiction over the claims in this action pursuant to
28 U.S.C. § 1331 and § 1367. The parties do not contest personal jurisdiction or venue,
and the court finds adequate allegations to support both.
II.

FACTUAL AND PROCEDURAL BACKGROUND

The facts as alleged in the amended complaint are as follows:
Southern Field is an industrial maintenance management and services provider
operating in 30 states. Doc. 22 at ¶ 8. Killough was an employee of Southern Field until
March 25, 2018. Doc. 22 at ¶9. TMS is an industrial maintenance company formed by
Killough to compete with Southern Field. Doc. 22 at ¶ 10.
Killough began his employment with Southern Field as a fabrication shop foreman
and was promoted over time to the position of superintendent of Southern Field’s contract
maintenance crew assigned to supervise and manage Southern Field’s maintenance service
work for Georgia-Pacific Corporation (“GP”). Doc. 22 at ¶ 12.
Despite his position with Southern Field, Killough began making plans to form an
industrial maintenance company to compete with Southern Field. All of Killough’s plans
were undertaken clandestinely and without the knowledge or consent of Southern Field.
Doc. 22 at ¶ 15.
As part of this process, Southern Field alleges, Killough misappropriated
confidential, proprietary, and trade secret business information belonging to Southern
Field. The trade secret information is alleged to include the following, with the following
protections of those trade secrets, as paraphrased:
2

a.

Southern Field’s business plan related to maintenance service project
work which is maintained in hard copy and electronic copy formats
and is marked with legends indicating it is confidential and/or
proprietary. The electronic copy is maintained on a passwordprotected server and the hard copies are maintained in locked storage.
Killough was in the limited group of Southern Field employees who
had password access to the server and Southern Field made
presentations to and specifically discussed with Killough the need to
maintain the confidentiality of the business plan.

b.

Southern Field’s project estimates, proposals, subcontracts, and
purchase orders and Killough’s intimate knowledge about Southern
Field’s proprietary and confidential information contained in them.
Killough had many conversations of a confidential nature about how
the price was prepared for the proposals. Access to the bid documents
is controlled by a pre-approved list of employees with access. The
bid documents are stored on a password-protected server or in locked
cabinets or locked rooms. Southern Field made presentations to and
discussed with Killough the need to maintain confidentiality. The
internal documents were marked with legends indicating that they
were confidential and/or proprietary.

c.

Southern Field’s project tracking log, containing information on past,
current and future purchase orders on the GP Project. Only authorized
personnel are given access to this log. Killough was in a limited group
of employees who had password access to the access-limited,
password-protected server. Southern Field made presentations and
discussed with Killough the need to maintain the confidentiality of the
information in the log.

d.

Southern Field’s proprietary and confidential time and materials rates
used to prepare bids and quotes for industrial maintenance contracts
and jobs, including on the GP Project. The sheets are maintained in
hard copy and electronic copy formats. The electronic copies are
maintained on an access-limited, password-protected server. The
sheets are marked with a confidentiality/proprietary legend. Southern
Field made presentations to and discussed with Killough the need to
maintain confidentiality of the proprietary information in the rate
sheets.

e.

Documents and information containing Southern Field’s current gross
profit, overhead and pretax percentages. These documents were only
shared with authorized personnel, including Killough, to analyze
3

profitability and to help prepare future bids. The information was
maintained by the Chief Financial Officer on an access-limited,
password-protected server. Southern Field made presentations to and
discussed with Killough the need to maintain confidentiality.
Doc. 22 at ¶ 19.
Southern Field also alleges that during his employment Killough received and
signed a written acknowledgment within the company handbook that sensitive business
information is confidential, the property of the company, and should not be discussed
except where explicitly authorized by the company. Doc. 22 at ¶ 21. The amended
complaint also alleges that Killough prepared and delivered to GP quotes and proposals for
maintenance work that were marked as “CONFIDENTIAL & PROPRIETARY
INFORMATION.” Doc. 22 at ¶ 22. There is no allegation that Killough signed an
independent confidentiality, non-compete, or non-solicitation agreement.
Southern Field alleges that much of the information Killough misappropriated was
current when he took it, could easily be used to Southern Field’s great competitive
detriment, had great economic value to Southern Field, and was the subject of reasonable
efforts by Southern Field to protect its secrecy. Doc. 22 at ¶ 23.
Southern Field alleges that Killough clandestinely took actions to recruit the
Southern Field crew, to have the GP contract replaced outside of the usual bid process, and
to have Southern Field removed from the bid list or not notified about upcoming bid
opportunities. Doc. 22 at ¶ 17.
Because of Killough’s actions, it is alleged that Killough and TMS became the
maintenance service contractor on the GP project immediately after Killough separated

4

from his employment with Southern Field on March 25, 2018. Doc. 22 at ¶ 24.
III. STANDARD OF REVIEW
In considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, the court must “take the factual allegations in the complaint as true and
construe them in the light most favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d
1282, 1284 (11th Cir. 2008). To survive a motion to dismiss, a complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is “plausible on its face” if “the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The complaint “requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Factual
allegations need not be detailed, but “must be enough to raise a right to relief above the
speculative

level,”

id.,

and

“unadorned,

the-defendant-unlawfully-harmed-me

accusation[s]” will not suffice. Iqbal, 556 U.S. at 678.
IV.

DISCUSSION

Killough and TMS seek the dismissal of portions of Counts I, II, IV, and V of the
amended complaint.
A.

Trade Secrets Claims
Southern Field brings claims for violations of the federal Defend Trade Secrets Act,

18 U.S.C. § 1836 (“DTSA”), and the Alabama Trade Secrets Act, Alabama Code
§ 8-27-3 (“ATSA”), in Counts I and II of the amended complaint.
5

In ruling on the initial motion to dismiss, this court determined that there are
allegations which satisfy each of the elements of the claims challenged by Killough and
TMS, but explained that it was not clear whether the allegations for each element of the
trade secrets claims applied consistently to the same category of trade secret. Doc. 21 at
12. The court gave Southern Field additional time in which to file an amended complaint
to address this concern.
The categories of trade secrets alleged in the amended complaint are Southern
Field’s business plan; bid documents; the project tracking log; time and materials rates;
and current gross profit, overhead, and pretax percentages. Doc. 22. In the new motion,
Killough and TMS now challenge only the element of reasonable measures to protect trade
secrets as to each of the categories of trade secrets alleged, other than the bid documents.
Doc. 23 at 1.
As to Southern Field’s business plan and the time and materials rates, Killough and
TMS argue that Southern Field in its amended complaint has pleaded “utterly unadorned”
allegations that these categories of documents were marked with indicia that they were
confidential and that these representations lack plausibility. Killough and TMS argue that
some allegations of the amended complaint are pleaded using the present tense, and so do
not even plead that indicia of confidentiality existed at the time of Killough’s employment.
Killough and TMS also challenge new allegations in the amended complaint that Southern
Field discussed with Killough the need for confidentiality, stating that these allegations
were missing from the first complaint without explanation and are just bald recitations of
the elements of the claims.
6

The business plan is alleged to have been maintained in hard and electronic copy,
to have been marked with legends indicating it is confidential and/or proprietary, to have
been maintained either on a password-protected server to which a limited group of
employees had access or in locked file storage, and Southern Field officials are alleged to
have discussed with Killough the need to maintain the confidentiality of proprietary
information in the business plan. Doc. 22 at ¶ 19 (a). The time and materials rates also are
alleged to have been in hard copy and electronic formats, with electronic copies being
maintained

on

an

access-limited, password-protected

server; marked

with a

confidentiality/proprietary legend; and Southern Field is alleged to have discussed with
Killough the need to maintain confidentiality. Doc. 22 at ¶ 19(d).
The Federal Circuit, applying Florida law, has examined allegations of actions taken
to maintain secrecy that included “imposing confidentiality and nondisclosure obligations
on [] employees that have access to . . . Trade Secrets, marking documents constituting []
Trade Secrets with confidentiality designations and/or other indicia prohibiting the
reproduction or dissemination of such documents or information to third parties, [and]
restricting physical and electronic access by third parties” to trade secret information.
ABB Turbo Sys. AG v. Turbousa, Inc., 774 F.3d 979, 986 (Fed. Cir. 2014). The Federal
Circuit explained that these facts were enough to state a claim that is plausible on its face
and that requiring more was “too demanding of specificity.” Id. This court is persuaded to
follow this analysis.
Southern Field has not merely alleged the elements of a claim that it took
“reasonable measures” of secrecy, but instead has alleged specific measures it took,
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including marking the confidential nature of the document, keeping it in a passwordprotected and/or locked area, and discussing the need with Killough to maintain
confidentiality. Doc. 22 at ¶ 19. The fact that some of these allegations are pleaded in the
present tense does not undermine their plausibility at this stage of the litigation. For
purposes of the pending motion to dismiss, the court concludes that these allegations are
sufficient to state a plausible DTSA and ATSA claim with respect to the business plan and
time and materials rates.
In its previous Order, this court concluded that there were sufficient allegations of
reasonable measures to protect secrecy even in the absence of a confidentiality agreement
because the complaint alleged that the trade secrets were contained in documents with
proprietary markings. Doc. 21. The amended complaint, however, makes clear that some
categories of trade secrets were not marked as confidential and proprietary—specifically,
the project tracking log and the current gross profit, overhead, and pretax percentages
documents. Doc. 22 at ¶ 19 at (c) & (d).
The amended complaint alleges that these two categories of trade secrets were
contained on a password-protected, limited-access server, and that Southern Field
discussed with Killough the need to maintain the confidentiality of the proprietary
information in those particular documents. Doc. 22 at ¶ 19(c)–(d). The amended complaint
states that only authorized personnel were given access to the project tracking log and the
profit and overhead documents. Doc. 22 at ¶ 19(c)–(d). Killough and TMS argue that while
Southern Field now alleges that these documents were housed on password-protected

8

servers, there is no indication that the same protection was not given to all of Southern
Field’s documents, undercutting any reliance on this security measure.
Other jurisdictions have examined the contours of the law regarding reasonable
measures taken to protect secrecy. “[A]n employer’s failure to mark documents as
confidential or trade secret ‘precludes in many cases trade secret protection for those
materials.’” Mattel, Inc. v. MGA Ent., Inc., 782 F. Supp. 2d 911, 959 (C.D. Cal. 2011). The
specific circumstances of a case, however, may militate against a ruling as a matter of law
that a party’s failure to mark documents as confidential precludes a finding of reasonable
efforts. Id. The marking of documents as confidential and proprietary is significant
particularly when the documents are disclosed to a third-party for some purpose. See M.C.
Dean, Inc. v. City of Miami Beach, Fla., 199 F. Supp. 3d 1349, 1355 (S.D. Fla. 2016). The
analysis of the measures taken to protect secrecy is fact-specific, however, and “under all
the circumstances, [if] the employee knows or has reason to know that the owner intends
or expects the information to be secret, confidentiality measures are sufficient.”
Lasermaster Corp. v. Sentinel Imaging, 931 F. Supp. 628, 635 (D. Minn. 1996).
In this case, Southern Field has alleged that these categories of trade secrets were in
an access-limited, password-protected server and that there was a limited group of
employees with that access to the server, including Killough. Doc. 22 at ¶ 19(c)–(d).
Significantly, Southern Field also has alleged that Killough was informed of the need to
maintain the confidentiality of the information contained within the specific documents at
issue. At this point in the case, it is unclear what documents were misused and how they
were misused––facts that may or may not undermine the secrecy measures taken. Doc. 22
9

at ¶ 22. As pleaded, there are sufficient allegations of reasonable security measures such
that Southern Field plausibly has alleged that Killough knew or had reason to know that it
intended or expected the information to be confidential. See, e.g., Lasermaster Corp., 931
F. Supp. at 635. Southern Field’s proof ultimately may be insufficient to maintain its
claims as to all of the trade secrets categories, and the court will revisit this analysis upon
presentation of evidence if called upon to do so later in the case. The motion to dismiss,
however, is due to be DENIED as to the trade secrets claims.
B.

Conversion
This court previously applied a decision of the Alabama Supreme Court in which it

reversed a grant of summary judgment because the trier of fact should decide whether
discarded documents retrieved from the common trash dumpster located on leased
premises were proof of conversion, and also found that jury questions existed on the issues
of whether the discarded documents were trade secrets. Doc. 21 at 14 (citing Soap Co. v.
Ecolab, Inc., 646 So. 2d 1366, 1371 (Ala. 1994), overruled on other grounds by White
Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5 (Ala. 2009)). In so doing, this court
concluded that the conversion claim alleged in this case to be based on the conversion of
tangible property in the form of “hard copy documents” was not preempted by the ATSA.
Doc. 21 at 15.
The amended complaint now alleges that these documents were stored in hard copy
format. In response, Killough and TMS argue that this bare allegation, absent any facts
explaining the manner in which they were taken, is merely a recitation of the elements of
the claim and insufficient to state a plausible claim. Southern Field maintains that only the
10

intangible trade secret portion of the conversion claim in the original complaint was
dismissed by the court so that the motion seeking dismissal of a claim based on conversion
of hard copy documents is procedurally impermissible. The court agrees and finds that the
motion to dismiss is due to be DENIED as to this aspect of the conversion claim.
A new issue has been raised, however, as to the conversion of computer files. The
amended complaint states that Killough and TMS misappropriated information belonging
to Southern Field in part by “taking it from Southern Field’s computer system” (Doc. 22 at
¶ 19) and that Killough “copied and misappropriated” the profit and overhead and
documents and project tracking log. Doc. at ¶ 19(c)(vii) & (e)(vii). Southern Field takes
the position in brief that these allegations are broad enough to include an allegation that
the project tracking log and profit and overhead documents were taken in hard copy. Doc.
25 at 13. Southern Field further argues, however, that even if these documents were only
converted as computer files, they still are actionable in a conversion claim.
The issue of the conversion of computer files was not addressed by the court in its
previous Order because it was not clear at that time that Southern Field was alleging a
claim relating to the conversion of electronic files. Courts examining the preemptive scope
of the ATSA have concluded that a conversion claim for a “novel idea, trade secrets and/or
other confidential information” is preempted. Madison Oslin, Inc. v. Interstate Res., Inc.,
2012 WL 4730877, at *9 (N.D. Ala. Sept. 30, 2012). If the item alleged to have been
converted is a physical item, however, courts have found it to be outside of the preemptive
scope of the ATSA. See Soap Co., 646 So. 2d at 1371. Electronic files copied to a disk or
removable-media device generally qualify as physical items in this analysis. See, e.g., Bell
11

Aerospace Serv., Inc. v. U.S. Aero Serv., Inc., 690 F. Supp. 2d 1267, 1278 (M.D. Ala 2010).
But the distinction drawn by some courts is whether the converted property has value
independent of the value it accrues as a trade secret. See, e.g., Diamond Power Int’l, Inc.
v. Davidson, 540 F. Supp. 2d 1322, 1345 (N.D. Ga. 2007) (distinguishing a claim seeking
to remedy an injury caused not by the information but by the taking of physical property
such as blueprints and drawings). However, in Bell Aerospace Service, 690 F. Supp. 2d at
1278, the court allowed a claim to proceed to trial where files were retained on a personal
computer without discussing the issue of preemption in connection with that claim. See
Acoustic Artistry, LLC v. Peavey Elec. Corp., 2013 WL 12250381, at *8 n.9 (N.D. Ala.
Jan. 10, 2013) (distinguishing Bell Aerospace Service and noting that in that case the court
did not hold that the Act subsumed unjust enrichment and conversion claims).
At this point in the proceedings, the amended complaint adequately alleges a claim
for conversion of physical property, and whether that property has value independent of
the ideas or confidential information contained within the physical property is not an issue
presently before the court. The motion to dismiss is, therefore, due to be DENIED as to
the conversion claim in the amended complaint.
C.

Tortious Interference with Business Relations
In Count V, Southern Field brings a claim for tortious interference with contractual

or business relations. Killough and TMS originally moved for the dismissal of this claim
in the amended complaint on the ground that Killough was not a stranger to the business
relationship and so cannot be held liable for tortious interference with it. In addressing the
prior motion, the court gave Southern Field additional time in which to replead this claim
12

to state facts establishing actual malice. Doc. 21. The court also found that the amendment
was not futile in the face of the defendants’ invocation of competitor’s privilege because it
is an affirmative defense, and allowed that additional facts alleged in an amended
complaint might have some bearing on that defense. Doc. 21 at 19 (citing White Sands
Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5, 20 (Ala. 2009), for the holding that evidence of
concealment of facts that the defendant was competing precluded judgment as a matter of
law on this affirmative defense).
Killough and TMS again move for dismissal, arguing that Southern Field has not
pleaded facts showing actual malice and that the existence of competitor’s privilege is so
clear that the claim is due to be dismissed. Killough and TMS take the position that malice
under Alabama law exists only in narrow factual circumstances and that actions taken
merely to compete with Southern Field cannot demonstrate malice.
Southern Field responds that it pleaded facts that plausibly support an inference of
malice, including Killough’s awareness of the importance of the GP project to Southern
Field, his responsibility to communicate upcoming bid opportunities, and his awareness of
Southern Field’s desire to continue on the GP project. The amended complaint alleges that
Killough clandestinely took actions to recruit the Southern Field crew, to have the GP
contract replaced outside of the usual bid process, and either to have Southern Field
removed from the bid list or to prevent Southern Field from receiving notice of upcoming
bid opportunities. Doc. 22 at ¶ 17. Southern Field argues that Killough did not just prepare
to leave and compete but that he took affirmative steps or committed omissions so that he
could get the GP contract for TMS without having to compete with Southern Field after he
13

left employment. For purposes of the defense of competitor’s privilege, Southern Field
argues that these are allegations similar to fraud, which are not within the privilege.
Alabama law permits a plaintiff to maintain a claim of interference with business
relations against an individual officer or employee with regard to “business or contractual
relations to which their corporation or employer is a party.” Perlman v. Shurett, 567 So. 2d
1296, 1297 (Ala. 1990). An intentional interference claim is viable only where the officer
or employee “act[ed] outside their scope of employment and [acted] with actual malice.”
Id. A plaintiff may show the employee’s conduct sufficiently deviated from the scope of
his authority by demonstrating that the employee played a direct role in interfering with
the plaintiff’s business relation in order to obtain a personal benefit. See Pegram v.
Hebding, 667 So. 2d 696, 701–02 (Ala. 1995).
The requirements for proving “actual malice” under Alabama law are less clear.
Southern Field points to this language from the Alabama Supreme Court regarding an
inference of malice: “Malice may be shown by the proof of facts from which a reasonable
inference of malice may be drawn. The line between a proper inference and unwarranted
conjecture is not easily drawn. The answer depends on the evidence in each case and on
what the trier of fact may reasonably infer from that evidence.” Perlman v. Shurett, 567
So. 2d 1296, 1298 (Ala. 1990) (citation omitted). In Hickman v. Winston County Hospital
Board, 508 So. 2d 237, 239 (Ala. 1987), the Alabama Supreme Court relied on a case
equating malice and “malevolence,” and cited favorably the following description of
malice: “a corporation’s breach of contract must be done ‘without justification or
maliciously.’” In addition, to prove malice a plaintiff must make “a strong showing of a
14

pattern of interference.” Morrow v. Auburn Univ. at Montgomery, 973 F. Supp. 1392, 1410
(M.D. Ala. 1997).
Other jurisdictions have defined “malice” as actual evil-mindedness or specific
intent to injure. See Utility Trailer Sales of Kansas City, Inc. v. MAC Trailer Mfg., Inc.,
734 F. Supp. 2d 1210 (D. Kan. 2010), aff’d, 443 F. App’x 337 (10th Cir. 2011). This
definition of malice is consistent with the definition adopted by the Alabama Supreme
Court in other contexts.1 See Liberty Nat. Life Ins. v. Sanders, 792 So. 2d 1069, 1078 (Ala.
2000) (quoting jury instructions that “[m]alice means the intentional doing of a wrongful
act without just cause or excuse either with the intent to injure the person or property of
another person or under such circumstances as the law will imply an evil intent”).
Killough and TMS seek to have this court dismiss the tortious interference claim on
the ground that actions taken by Killough to have TMS replace Southern Field on the GP
contract, which included not informing Southern Field about a bid opportunity or removing
Southern Field from the bid list, cannot be considered malice as a matter of law. While the
evidence of malice alleged here is not the type of malice recognized in some Alabama
cases, see, e.g., Michelin Tire Corp. v. Goff, 864 So. 2d 1068, 1077–79 (Ala. Civ. App.
2002), the court is not aware of any Alabama case holding that only actions taken to force
the firing of another employee are actionable under Alabama law.
In Utility Trailer Sales, 734 F. Supp. 2d at 1218, the court found that it was a “close

1

The competitor’s privilege standard in that jurisdiction, however, does not appear to be the same
as that in Alabama because in that jurisdiction the conduct must be “independently actionable
conduct,” which is a higher burden than evil-mindedness or intent to injure. Utility Trailer Sales,
734 F. Supp. 2d at 1222.

15

call,” but there was sufficient evidence of malice in the form of evidence of intent to injure
the plaintiff’s business where the defendant, who was a party to a business relationship
with the plaintiff, allowed a third party to sell its products and helped the third party’s
business to become established with the intent to harm the business of the plaintiff. The
defendant also made a representation that took work away plaintiff and gave that work to
the third party. Id. at 1218–19. In this case, the allegations are not only that Killough set
up TMS to compete with Southern Field, but also that he intentionally manipulated the bid
process so that he could take advantage of that opportunity for TMS to the detriment of
Southern Field. Doc. 22 at ¶ 17. These allegations are consistent with the evidence of
malice in Utility Trailer Sales, which this court finds persuasive. The allegations also
include multiple efforts to position TMS to take GP’s business, not merely a one-time
event, so as to state a pattern. See Morrow, 973 F. Supp. at 1410. The court cannot conclude
as a matter of law, therefore, that Southern Field fails to allege facts plausibly establishing
malice.
With respect to the defense of competitor’s privilege, the Alabama Supreme Court
has held that “[t]here is no privilege for self-enrichment by devious and improper means.”
White Sands Grp., 32 So. 3d at 18–19. In White Sands, the court held that a claim for
tortious interference could proceed, over the defense of competitor’s privilege, because
there was evidence indicating that the defendant concealed the fact that it was a competitor
of the plaintiff. Id. at 20.
In the amended complaint in this case, Southern Field alleges that Killough took
actions in secret to compete with Southern Field and had Southern Field removed from the
16

bid list or failed to notify it about upcoming bid opportunities on the GP project in a
clandestine manner. Doc. 22 at ¶ 16 & ¶ 17. At this stage of the litigation, these are
sufficient allegations of devious or improper means such that the motion to dismiss is not
due to be granted on the basis of competitor’s privilege.
V.

CONCLUSION

For the foregoing reasons, it is ORDERED that the Motion to Dismiss is hereby
DENIED.
The defendants have until February 12, 2019 to file an answer to the amended
complaint.
DONE this 29th day of January, 2019.

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