Quantum Wave LLC v. Russell et al
Filing
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ORDER denying counterdefendants' 35 Motion to Dismiss or to Strike counterclaimants' declaratory judgment counterclaims, claims against Paul and Lillian Weisbart, and second and third affirmative defenses. Signed by Judge Frederick J Martone on 1/12/12.(REW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Plaintiff,
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vs.
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Michael Russell, Tinka Smith, Michael)
Haarlander, The Avalon Effect, LLC, and)
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Wes Burwell,
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Defendants.
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Michael Russell, Tinka Smith, Michael)
Haarlander, The Avalon Effect, LLC, and)
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Wes Burwell,
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Counterclaimants,
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vs.
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Quantum Wave, LLC, Paul Weisbart, and)
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Lillian Weisbart,
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Counterdefendants.
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Quantum Wave, LLC,
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No. CV 11-01510-PHX-FJM
ORDER
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We have before us counterdefendants Quantum Wave, LLC, Paul Weisbart, and
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Lillian Weisbart's motion to dismiss or strike (doc. 35) and counterclaimants' response (doc.
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39). We also have before us counterdefendants' motion to dismiss or strike defendant Wes
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Burwell's counterclaims and affirmative defenses (doc. 38), Burwell's response (doc. 41), and
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counterdefendants' reply to both responses (doc. 42). Counterdefendants request us to
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dismiss or strike counterclaimants Michael Russell, Tinka Smith, Michael Haarlander, The
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Avalon Effect, LLC, and Wes Burwell's declaratory judgment counterclaims, dismiss claims
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for declaratory judgment, breach of contract, and unjust enrichment against the Weisbarts,
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and strike two affirmative defenses.
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I
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Under the Declaratory Judgment Act, we have discretion, but not the duty, to declare
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the rights and legal relations of interested parties. 28 U.S.C. § 2201(a). If a counterclaim for
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declaratory relief is redundant, we may exercise our discretion to strike the counterclaim.
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See 6 Charles Alan Wright et al., Federal Practice and Procedure § 1406 (3d ed. 2010).
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Count two of the complaint, misappropriation of trade secrets, contends that Quantum
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Wave, LLC's "confidential information, including its distributor/customer database,
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constitutes trade secrets subject to protection under the law" and defendants wrongfully
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disclosed and used this information without consent (doc. 25 ¶ 56). Defendants deny these
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allegations in their answer. Defendants also seek a declaration that: (1) Michael Russell,
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Tinka Smith, Michael Haarlander, and Wes Burwell were independent contractors, (2)
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contact lists, business methods, and work product are their personal property, (3) this
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information is not a trade secret, and (4) they may use this information.
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"[T]he safer course for the court to follow is to deny a request to dismiss a
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counterclaim for declaratory relief unless there is no doubt that it will be rendered moot by
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the adjudication of the main action." Wright, supra, § 1406. The relief requested in the
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counterclaims would not necessarily be granted even if the counterclaimants prevailed on
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all claims asserted by plaintiff. Moreover, it will not impose any additional burden on the
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counterdefendants.
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declarations will simply be moot. At this early point in the litigation, we prefer to err on the
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side of caution and allow the claims to stand.
On the other hand, if the plaintiff prevails, then the requested
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In a related action in the United States District Court for the Middle District of
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Tennessee, the court dismissed counterclaimants' action for declaratory relief as a coercive
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action. The court found that the action would serve no useful purpose because it "involve[d]
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disputed factual issues by an alleged tortfeasor and [did] not present all of the claims between
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the parties." The Avalon Effect, LLC v. Weisbart, No. 3:11-00744 (M.D. Tenn. Sept. 20,
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2011) (Doc. 42, ex. B at 2). These problems are not present here, though, and the declaratory
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judgments sought in the counterclaim are not asserted to obtain the defendants' preferred
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forum. Cf. AmSouth Bank v. Dale, 386 F.3d 763 (9th Cir. 2004) ("[W]here a putative
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defendant files a declaratory action whose only purpose is to defeat liability in a subsequent
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coercive suit, no real value is served by the declaratory judgment except to guarantee to the
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declaratory plaintiff her choice of forum . . . .") (cited in The Avalon Effect, LLC v.
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Weisbart, supra).
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II
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Counterdefendants ask us to strike or dismiss the declaratory judgment, breach of
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contract, and unjust enrichment claims against Paul and Lillian Weisbart. They contend the
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counterclaims do not make any allegations against the Weisbarts as individuals.
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"A motion to strike may be filed only if it is authorized by statute or rule . . . or if it
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seeks to strike any part of a filing or submission on the ground that it is prohibited (or not
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authorized) by a statute, rule, or court order." LRCiv 7.2(m). The claims against the
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Weisbarts are not "redundant, immaterial, impertinent, or scandalous" and thus a motion to
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strike is not authorized by Rule 12(f), Fed. R. Civ. P. Nor do counterclaimants point to any
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other rule or statute authorizing us to strike these claims.
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When considering a motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., "a
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court must construe the complaint in the light most favorable to the plaintiff and must accept
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all well-pleaded factual allegations as true." Shwarz v. United States, 234 F.3d 428, 435 (9th
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Cir. 2000). On the other hand, a court is "not bound to accept as true a legal conclusion
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couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
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1955, 1965 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944
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(1986)). To survive a motion to dismiss, the complaint must contain "enough facts to state
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a claim to relief that is plausible on its face." Id. at 570, 127 S. Ct. at 1974. "A claim has
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facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.
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Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009).
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Counterclaimants allege that the Weisbarts failed to follow corporate formalities for
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Quantum Wave, LLC and commingled funds.
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counterclaimants will be able to pierce the corporate veil and the Weisbarts will be liable for
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everything for which Quantum Wave, LLC is liable. In addition, the factual allegations in
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the counterclaims may be able to support claims for unjust enrichment and breach of contract
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against the Weisbarts individually.
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declarations of rights involving the Weisbarts.
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counterdefendants' motion to strike or dismiss the claims against the Weisbarts as
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individuals.
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If these allegations are true, then
The requested declaratory relief also includes
For these reasons, we deny
III
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"The key to determining the sufficiency of pleading an affirmative defense is whether
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it gives plaintiff fair notice of the defense." Wyshak v. City Nat'l Bank, 607 F.2d 824, 827
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(9th Cir. 1979). In count two of the complaint, plaintiffs allege misappropriation of trade
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secrets. Defendants have asserted as their second and third affirmative defenses that
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information alleged to be confidential or a trade secret is their property and/or not a
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protectable trade secret. (Doc. 37 at 11). These assertions give plaintiffs fair notice of the
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basis of the defense and are not redundant, immaterial, impertinent, or scandalous.
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IV
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Accordingly, IT IS ORDERED DENYING counterdefendants' motion to dismiss or
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strike counterclaimants' declaratory judgment counterclaims, claims against Paul and Lillian
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Weisbart, and second and third affirmative defenses (doc. 35).
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DATED this 12th day of January, 2012.
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