Proofpoint, Inc. et al v. Vade Secure, Incorporated et al

Filing 570

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT. Plaintiffs' motion for summary judgment on Vade Secure's Fourth, Fifth, Sixth, and Eleventh Affirmative Defenses and on Lemarie's Third, Fourth, Fifth, Eighth, Ninth, Tenth, Fifteenth, Seventeenth, and Twentieth Affirmative Defenses is granted. Signed by Judge Maxine M. Chesney on June 4, 2021. (mmclc1, COURT STAFF) (Filed on 6/4/2021)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 PROOFPOINT, INC., et al., Plaintiffs, 8 ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT v. 9 10 VADE SECURE, INCORPORATED, et al., 11 United States District Court Northern District of California Case No. 19-cv-04238-MMC Defendants. 12 13 Before the Court is plaintiffs Proofpoint, Inc. ("Proofpoint") and Cloudmark's LLC 14 ("Cloudmark") Motion for Summary Judgment, filed April 23, 2021, whereby plaintiffs 15 seek summary judgment on a number of affirmative defenses raised in response to 16 plaintiffs' First Amended Complaint ("FAC"). Defendants Vade Secure, Incorporated and 17 Vade Secure SASU (collectively, "Vade Secure") have file a response, as has defendant 18 Olivier Lemarié ("Lemarié"). Plaintiffs have filed a reply. Having read and considered the 19 parties' respective written submissions, the Court rules as follows.1 20 1. With respect to Vade Secure's Fourth, Fifth, Sixth, and Eleventh Affirmative 21 Defenses, titled, respectively, "Estoppel," "Unclean Hands," "Waiver," and "Copyright 22 Misuse," the motion will be granted, as Vade Secure states it "agrees to not advance 23 these defenses at trial." (See Vade Secure's Response at 1:9-10.) 24 2. With respect to Lemarié's Third, Fourth, Fifth, Eighth, Ninth, Fifteenth, 25 Seventeenth, and Twentieth Affirmative Defenses, titled, respectively, "Modification," 26 "Privilege," "Offset," "Estoppel," "Unclean Hands," "Copyright Misuse," "Merger," "Statute 27 28 1 By order filed May 25, 2021, the Court took the matter under submission. 1 of Limitations," and "Laches," the motion will be granted, as Lemarié states he "does not 2 oppose" the motion to such extent. (See Lemarié's Response at 1:3-6.) 3. With respect to Lemarié's Tenth Affirmative Defense, titled "Waiver," the motion 3 4 will be granted for the reasons stated below. 5 "Waiver is the intentional relinquishment of a known right after knowledge of the 6 facts." Waller v. Truck Ins. Exchange, Inc., 11 Cal. 4th 1, 31 (1995) (internal quotation, 7 citation, and alteration omitted). In his response to an interrogatory requesting he provide 8 "in detail the factual and legal bases" for each of his affirmative defenses, Lemarié 9 included no such information, and, indeed, made no reference to, his affirmative defense of waiver. (See Lordgooie Decl. Ex. C at 16:9-21:2). Accordingly, plaintiffs have met 11 United States District Court Northern District of California 10 their initial burden to produce evidence either "negating an essential element of the 12 nonmoving party's claim or defense," or, in the alternative, demonstrating "an absence of 13 evidence to support the nonmoving party's case." See Nissan Fire & Marine Ins. Co. v. 14 Fritz Cos., 210 F.3d 1099, 1105 (9th Cir. 2000) (holding party seeking summary judgment 15 meets initial burden of production where it shows non-movant failed to identify, in answer 16 to interrogatory, evidence to support claim). The burden thus shifts to Lemarié to come 17 forward with evidence sufficient to raise a triable issue of fact as to waiver. See id. at 18 1107. 19 In asserting a triable issue exists, Lemarié limits his argument to Count V of the 20 FAC, wherein plaintiffs allege Lemarié, upon termination of his employment with 21 Cloudmark, failed to comply with a contractual obligation to "deliver and return to 22 Cloudmark all of the materials contained with [an] Evernote account." (See FAC ¶ 107).2 23 24 25 26 27 28 2 The contractual provision, in relevant part, provides as follows: When I leave the employ of the Company, I will deliver to the Company any and all drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any Company Inventions . . . or Proprietary Information of the Company. (See Budaj Decl. [Doc. No. Ex. H [Doc. No. 476-20] ¶ 6.) 2 1 As to that claim, Lemarié contends he "returned relevant files to his Cloudmark 2 colleagues, confirmed they had all the documents they required, and deleted the 3 [Evernote] notebook" (see Lemarié's Response at 4:23-25), after which Cloudmark, being 4 aware of such facts, "declined to seek return of the Evernote notebook" (see id. at 4:9- 5 10), thereby leading him to "reasonably conclude that it had relinquished [its] right" to 6 "delivery of the Evernote notebook" (see id. 4:1-3). As plaintiffs point out, however, 7 Lemarié offers no evidence to support either his assertion that he returned the files in the 8 Evernote notebook to his colleagues or his assertion that he confirmed his colleagues 9 had all the documents they required. Consequently, as to waiver, Lemarié has not 10 shown a triable issue of fact exists. CONCLUSION United States District Court Northern District of California 11 12 For the reasons stated above, plaintiffs' motion for summary judgment on Vade 13 Secure's Fourth, Fifth, Sixth, and Eleventh Affirmative Defenses and on Lemarié's Third, 14 Fourth, Fifth, Eighth, Ninth, Tenth, Fifteenth, Seventeenth, and Twentieth Affirmative 15 Defenses is hereby GRANTED. 16 IT IS SO ORDERED. 17 18 Dated: June 4, 2021 MAXINE M. CHESNEY United States District Judge 19 20 21 22 23 24 25 26 27 28 3

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