Jenna in White, LLC et al v. Fischer

Filing 13

OPINION and ORDER Granting #11 Motion to Dismiss. Signed by District Judge Stephen J. Murphy, III. (DPar)

Case 2:22-cv-12602-SJM-EAS ECF No. 13, PageID.186 Filed 01/18/23 Page 1 of 10

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JENNA IN WHITE, LLC, and
ELISSAR BRIDAL, LLC,

Case No. 2:22-cv-12602

Plaintiffs,

HONORABLE STEPHEN J. MURPHY, III

v.
HEATHER FISCHER,
Defendant.
/
OPINION AND ORDER GRANTING MOTION TO DISMISS [11]
Plaintiffs Jenna in White (JIW) and Elissar Bridal filed a complaint that
alleged breach of contract, violation of the Defend Trade Secrets Act (DTSA), violation
of the Michigan Uniform Trade Secrets Act (MUTSA), tortious interference with
employment contracts, and tortious interference with prospective business
relationships. ECF 9, PgID 41–48. Defendant Heather Fischer moved to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(6), and she moved to dismiss
Plaintiff Elissar from the case. ECF 11. Plaintiffs responded to the motion. ECF 12.
For the following reasons, the Court will grant the motion.1

Based on the parties’ briefing, the Court will resolve the motion on the briefs without
a hearing. See Fed. R. Civ. P. 78(b); E.D. Mich. L.R. 7.1(f)(2).
1

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BACKGROUND2
Plaintiff JIW is a bridal apparel company in Berkley, Michigan. ECF 9, PgID
35. Plaintiff Elissar is an affiliate of Plaintiff JIW. Id. Defendant was employed by
Plaintiffs as a store manager for about three years. Id. at 36.
Defendant executed and signed a noncompete agreement with Plaintiff JIW.
ECF 11-1, PgID 67–71. The noncompete provided that Defendant would, both during
and after her employment, “hold in strictest confidence and . . . not use or disclose
any of the company’s confidential and proprietary information.” Id. at 67 (alterations
omitted). The noncompete also prohibited Defendant from “contacting or soliciting, or
attempting to contact or solicit, any customer or supplier of the company for purposes
of gaining the business of such customer.” Id. at 68 (alterations omitted).
Plaintiffs alleged that Defendant had twice “connect[ed] with customers of
Plaintiffs and add[ed] them to, and communicat[ed] with them from, Defendant’s
personal social media accounts.” ECF 9, PgID 37. On the first occasion, Plaintiffs
alleged that Defendant obtained information from customers and prospective
customers that included personal contact information and information about apparel
orders at a bridal exposition in Illinois. Id. at 37–38. Plaintiffs “paid for
Defendant . . . to work at Plaintiffs’ booth at the expo.” Id. at 37. “Defendant was
supposed to obtain . . . information from customers and prospective customers at the
expo” for Plaintiffs’ benefit. Id. Plaintiffs noted that Defendant faithfully collected

Because the Court must view all facts in the light most favorable to the nonmoving
party, see Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008), the Court’s recitation
does not constitute a finding or proof of any fact.
2

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customer information for Plaintiffs, per Plaintiffs’ instructions. Id. at 38. But
Plaintiffs also stated that Defendant then “shared her personal contact and social
media information” with customers “instead of providing [the] contact information of
Plaintiffs.” Id. at 38.
On the second occasion, Plaintiffs contended that Defendant committed the
same wrongful act at a bridal exposition in New York. Id. Plaintiffs “paid for
admission as a vendor” at the New York bridal exposition, and they “paid for
Defendant . . . to work at Plaintiff’s booth at the New York expo.” Id. “Similar to the
Chicago expo, defendant was supposed to obtain, and did obtain for Plaintiffs
information from customers and prospective customers.” Id. Defendant faithfully
obtained for Plaintiffs “names and personal contact information of owners and
purchase agents of customers” as well as “orders and information about dresses
customers were ordering or would be ordering.” Id. “Specifically, Defendant gathered
the nonpublic names and contact information of owners and purchasing agents of
bridal retailers who placed orders with Plaintiffs or provided their information to
Plaintiffs after indicating interest in Plaintiffs’ products.” Id. at 39. Defendant
collected the above information in her capacity as Plaintiffs’ employee and at
Plaintiffs’ direct instruction. Id. The information Defendant collected, alleged
Plaintiffs, “is not easily ascertainable without extraordinary effort and expense,
including paying for and attending specific, expensive trade expos in wedding dress
retail . . . and obtaining from customers and prospective customers their owners’ and
purchasing agents’ information.” Id. Plaintiffs admitted that Defendant acquired the

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expensive information at their direction, but they also alleged that Defendant
directed “Plaintiffs’ customers to contact Defendant directly, provid[ed] her personal
contact information to them, and directly communicat[ed] with them through her
personal number, email, and/or social media accounts.” Id.
Last, Plaintiffs alleged that Defendant notified them “[i]n the middle of the
New York expo” that she “would not be showing up to the rest of the expo” or working
for Plaintiff Elissar anymore. Id. at 40. At that point, she allegedly “began to contact
customers and potential customers of Plaintiffs, indicating that she was no longer
working with Plaintiffs and attempting to deter them from doing, or continuing to do,
business with Plaintiffs.” Id. Plaintiffs alleged that Defendant “us[ed] the contact
information misappropriated from Plaintiffs” to “disparage and defam[e]” them and
to commit other tortious acts. Id.
LEGAL STANDARD
The Court may grant a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) if the complaint fails to allege facts “sufficient ‘to raise a right to relief above
the speculative level,’ and to ‘state a claim to relief that is plausible on its face.’”
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). In a Rule 12(b)(6) motion, courts
can only “consider the [c]omplaint and any exhibits attached thereto . . . [and] items
appearing in the record of the case and exhibits attached to defendant’s motion to
dismiss so long as they are referred to in the [c]omplaint and are central to the claims
contained therein.” Bassett, 528 F.3d at 430 (citation omitted); see also Decoration

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Design Sols., Inc. v. Amcor Rigid Plastics USA, Inc., 553 F. Supp. 3d 424, 427 (E.D.
Mich. 2021) (Murphy, J.).
The Court views the complaint in the light most favorable to the plaintiff,
presumes the truth of all well-pleaded factual assertions, and draws every reasonable
inference in the nonmoving party’s favor. Bassett, 528 F.3d at 430. But the Court will
not presume the truth of legal conclusions in the complaint. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). If “a cause of action fails as a matter of law, regardless of
whether the plaintiff’s factual allegations are true or not,” then the Court must
dismiss the complaint. Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir.
2009).
DISCUSSION
Defendant argued that Plaintiffs failed to plead a claim under both the DTSA
and the MUTSA and that Plaintiff Elissar should be dismissed from the case. ECF
11, PgID 56–63. The Court will first grant Defendant’s motion to dismiss as to the
DTSA claim. After, the Court will decline to exercise supplemental jurisdiction over
the remaining claims and dismiss the case.
I.

DTSA
Defendant contended that Plaintiffs failed to plead sufficient facts to support

their DTSA claim. Id. at 56. She advanced two arguments: one, that Plaintiffs failed
to plead with requisite particularity under Federal Rule of Civil Procedure 9(b); and
two, that Plaintiffs failed to plead with requisite particularity under Federal Rule of

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Civil Procedure 8(a). Id. at 56, 59. The Court will first address Defendant’s two
arguments in turn.
A.

Federal Rule of Civil Procedure 9(b)

Defendant argued that Plaintiffs failed to plead their claims with the
particularity required by Rule 9(b). ECF 11, PgID 56–59. Defendant first maintained
that Plaintiffs had not satisfied Rule 8(a)(2) because they “fail[ed] to provide any
details regarding why they consider the [contact] information as unique and/or
protected.” Id. at 59. Second, Defendant argued that Plaintiffs failed to “allege
whether the Expo attendees were ever realized as actual customers, or if they were
simply just browsing through the Expo and interacting with the other numerous
vendors in attendance at the public Expo.” Id. at 58–59.
Rule 9(b) provides that, “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” Rule 9(b)’s
particularity requirement is a “heightened pleading requirements.” Sanderson v.
HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006). But “the Federal Rules
of Civil Procedure do not require heightened pleadings for trade secret claims.” Foulk
Consulting Servs., Inc. v. BlazeMeter, Inc., No. 20-11446, 2020 WL 10620265, at *5
(E.D. Mich. Nov. 16, 2020); see also Xoran Holdings LLC v. Luick, No. 16-13703, 2017
WL 4039178, at *6 (E.D. Mich. 2017). Thus, because Rule 9(b) does not apply to trade
secret claims, Defendant’s argument fails.

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B.

Federal Rule of Civil Procedure 8(a)

Defendant next argued that Plaintiffs failed to adequately plead their claim
under Rule 8(a). ECF 11, PgID 59. Under Rule 8(a)(2), a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.”
It need not include “detailed factual allegations,” but “a formulaic recitation of the
elements of a cause of action will not do.” Bell, 550 U.S. at 555.
“To state a claim for misappropriation of trade secrets under the [DTSA], a
plaintiff must allege facts establishing an unconsented disclosure or use of a trade
secret by one who used improper means to acquire the secret; or, at the time of the
disclosure, knew or had reason to know that the trade secret was acquired through
improper means, under circumstances giving rise to a duty to maintain the secrecy of
the trade secret.” Ford Motor Co. v. Launch Tech Co., No. 17-12906, 2018 WL
1089276, at *16 (E.D. Mich. Feb. 26, 2018); see also 18 U.S.C. § 1836(b)(2).
To start, the customer information and customer orders at issue constitute
trade secrets because “customer lists developed by a former employee and
information relating to a customer’s needs may be considered trade secrets if the
employee is bound by a confidentiality agreement.” Prescription Supply, Inc. v. Musa,
No. 16-12070, 2017 WL 747601, at *4 (E.D. Mich. Feb. 27, 2017) (citing Laethem
Equip. Co. v. Deere & Co., No. 05-10113, 2007 WL 2433980, at *18 (E.D. Mich. Aug.
14, 2007)). Here, Defendant signed a noncompete agreement that required Defendant
to “hold in the strictest confidence and not use or disclose any of the company’s
confidential and proprietary information.” ECF 11-1, PgID 67 (alterations omitted).

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Likewise, the complaint stated that Defendant signed the noncompete agreement to
“maintain the security and privacy of Plaintiffs’ confidential information, including
customer lists and contact information.” ECF 9, PgID 36. Because Defendant was
allegedly bound by a confidentiality agreement, it follows that the customer
information and customer orders at issue constitute trade secrets for purposes of the
DTSA and MUTSA.3
But Plaintiffs’ complaint is nonetheless insufficient because Plaintiffs failed to
plead facts establishing a DTSA claim. “To state a claim for misappropriation of trade
secrets under the [DTSA], a plaintiff must allege facts establishing an unconsented
disclosure or use of a trade secret by one who used improper means to acquire the
secret.” Ford, 2018 WL 1089276, at *16. Plaintiffs pleaded facts that established an
unconsented disclosure or use of trade secrets, but they failed to plead facts that
established that Defendant used improper means to acquire the trade secrets.
Granted, the complaint alleged that “Defendant acquired the trade secrets
through improper means.” ECF 9, PgID 44 (alterations omitted). But the improper
means Plaintiffs identified were the “taking and keeping [of] Plaintiffs’ information

To be sure, customer information has been held to not constitute trade secrets if
“the information sought to be protected was readily available through another
source.” Laethem, 2007 WL 2433980, at *18. But the complaint pleaded that the
customer information and customer orders at issue were only obtainable by attending
bridal expositions. ECF 9, PgID 39, 43. The complaint also provided that attending
the bridal expositions was extremely expensive for Plaintiffs. Id. In sum, Plaintiffs
adequately pleaded that the customer information and customer orders at issue were
not readily available through another source.
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from the expos.” Id. Simply put, Plaintiffs’ allegations are insufficient and their
reasoning in the response brief is unpersuasive.
For one, Plaintiffs failed to address the specific question of improper
acquisition. Plaintiffs had to allege facts “establishing an unconsented disclosure or
use of a trade secret by one who used improper means to acquire the secret.” Ford,
2018 WL 1089276, at *16 (emphasis added). Yet Plaintiffs merely recited the
“improper means” requirement of pleading a DTSA claim. And a mere recitation of
the elements of a claim “will not do.” Bell, 550 U.S. at 555. For instance, Plaintiffs did
not describe what was improper about the means Defendant used to acquire the trade
secrets. Nor did they allege any facts that showed Defendant obtained orders from
potential customers in an improper way. In the end, Plaintiffs failed to plead facts
establishing that Defendant acquired the trade secrets at issue through improper
means.
For another, Plaintiffs’ conclusion that Defendant acquired the proprietary
information by improper means is contradicted by the facts alleged in the rest of the
complaint. Indeed, the complaint suggested that Defendant properly acquired the
trade secrets because she was allegedly instructed—and paid—to acquire the
information by Plaintiffs. See, e.g., ECF 9, PgID 38 (“Defendant was supposed to
obtain, and did obtain, for Plaintiffs information from customers and prospective
customers, . . . including the names and personal contact information of owners and
purchase agents of customers.”); 37 (“Plaintiffs also paid for Defendant . . . to work at
Plaintiffs’ booth at the expo.”).

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Last, Plaintiffs reasoned that Defendant obtained the proprietary information
through “improper means” because she later used the customer information and
customer orders for her own purposes. But whether Defendant later used the trade
secrets for her own benefit is unrelated to whether her acquisition of those trade
secrets was improper. Plaintiffs’ DTSA claim is therefore unsupported and even
contradicted by other facts pleaded in the complaint. The Court will thus dismiss the
claim with prejudice.
II.

Remaining Claims
The remaining claims are State-law claims, see ECF 9, PgID 35, 41, 45–48, and

the Court will decline to exercise supplemental jurisdiction over them. 28 U.S.C.
§ 1367(c)(3); see Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (“Under 28 U.S.C.
§ 1367(c)(3), the district court may decline to exercise supplemental jurisdiction over
a claim if it has dismissed all claims over which it has original jurisdiction.”). The
State-law claims are accordingly dismissed without prejudice.
WHEREFORE, it is hereby ORDERED that Defendant’s motion to dismiss
[11] is GRANTED.
SO ORDERED.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: January 18, 2023
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on January 18, 2023, by electronic and/or ordinary mail.
s/ David P. Parker
Case Manager
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