Officemax Inc. v. Sousa

• Decision Date: 24 March 2011
• Docket Number: No. 2:09–cv–00631–JAW.,2:09–cv–00631–JAW.
• Citation: 773 F.Supp.2d 190
• Parties: OFFICEMAX INCORPORATED, Plaintiff,v.Denis SOUSA, George Johnson and John Steele, Defendant.
• Court: U.S. District Court — District of Maine

773 F.Supp.2d 190

OFFICEMAX INCORPORATED, Plaintiff,

v.Denis SOUSA, George Johnson and John Steele, Defendant.

No. 2:09–cv–00631–JAW.

United States District Court, D. Maine.

March 24, 2011.

David A. Goldman, Russell Pierce, Norman, Hanson & Detroy, Portland, ME, John B. Flood, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, DC, Kindra L. Hansen, OfficeMax Incorporated, Boise, ID, for Plaintiff.Alexia Pappas, Verrill Dana LLP, Portland, ME, Stephen W. Rider, Law Office of Stephen W. Rider, P.C., Hingham, MA, for Defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT, TO STRIKE, FOR SANCTIONS, AND TO SUPPLEMENT

JOHN A. WOODCOCK, JR., Chief Judge.

In this civil action, OfficeMax filed suit against its former employees—now working for its competitor W.B. Mason—to prevent them from violating the terms of their non-competition agreements and to prevent them from revealing confidential OfficeMax trade information. The Defendants, Denis Sousa, George Johnson, and John Steele, have fought back, not merely denying OfficeMax's legal claims but counterclaiming against OfficeMax, seeking a declaratory judgment and alleging that OfficeMax committed torts against them and violated state of Maine statutory law. What began as a skirmish devolved into a major dispositive motion battle with multiple charges and counterattacks. In this exhaustive order, the Court picks its way through the volleys, declares some minor victories, but for the most part orders the adversaries back to where they began.

I. STATEMENT OF FACTSA. Procedural History

1. Complaints, Answers, Motions to Dismiss and Counterclaims

On December 18, 2009, OfficeMax Incorporated (OfficeMax) filed suit against Denis Sousa, George Johnson and John Steele, seeking recovery for alleged violations of nondisclosure and noncompetition agreements that the Defendants signed while they were employed by OfficeMax and its predecessor, Boise Cascade Office Products (BCOP). Compl. at 1 (Docket # 1). Johnson answered on February 3, 2010. Answer, Affirmative Defenses and Jury Demand of Def. George Johnson (Docket # 9) ( Johnson Answer ). On February 8, 2010, Mr. Steele moved to dismiss pursuant to Rule 12(b)(6). Def. John Steele's Mot. to Dismiss Pursuant to Rule 12(b)(6) (Docket # 11) ( Steele Mot. to Dismiss ). On February 11, 2010, Mr. Sousa answered. Answer, Affirmative Defenses and Jury Demand of Def. Denis Sousa (Docket # 12) ( Sousa Answer ). On February 24, 2010, OfficeMax moved for preliminary injunction. Mot. for Prelim. Inj. (Docket # 15). On March 1, 2010, OfficeMax responded to Mr. Steele's Motion to Dismiss. Pl.'s Opp'n to the Mot. to Dismiss Filed by Def. Steele. (Docket # 20) ( Opp'n to Mot. to Dismiss ). On March 19, 2010, District Court Judge Hornby denied Mr. Steele's Motion to Dismiss, stating that “[t]here may ultimately be a basis for summary judgment, but the allegations just barely survive a motion to dismiss.” Order Den. Mot. to Dismiss (Docket # 26). On April 2, 2010, Mr. Steele answered OfficeMax's Complaint and asserted a counterclaim, alleging breach of contract, fraud, violation of the Maine Timely and Full Payment of Wages Law, 26 M.R.S. § 621–A et seq., abuse of process, and defamation, and requesting a declaratory judgment. Answer, Affirmative Defenses, Countercl. and Jury Demand of Def. John Steele (Docket # 28) ( Steele Answer and Countercls.). On April 27, 2010, OfficeMax answered Mr. Steele's counterclaims. Answer of OfficeMax Incorporated to Countercl. of John Steele (Docket # 38) ( OfficeMax Answer ).

On July 23, 2010, Messrs. Sousa and Johnson filed an amended answer asserting a counterclaim, alleging abuse of process and seeking a declaratory judgment. ¹ Countercl. of Def. George Johnson (Docket # 68) ( Johnson Countercl.); Countercl. of Def. Denis Sousa (Docket # 69) ( Sousa Countercl.). On August 13, 2010, OfficeMax answered Mr. Johnson's and Mr. Sousa's counterclaims. Answer of OfficeMax Incorporated to Countercl. of George Johnson (Docket # 87); Answer of OfficeMax Incorporated to Countercl. of Denis Sousa

(Docket # 88).

2. Defendants' Motions for Summary Judgment, to Strike, and for Sanctions

On June 18, 2010, Messrs. Johnson and Sousa moved for Summary Judgment. Mot. of Defs. Denis Sousa and George Johnson for Summ. J. (Docket # 47) ( Sousa and Johnson Summ. J. Mot.). Mr. Steele followed on June 24, 2010. Def. John Steele's Mot. for Summ. J. (Docket # 50) ( Steele Summ. J. Mot.). OfficeMax responded to Mr. Steele's summary judgment motion on July 15, 2010, and to Messrs. Johnson and Sousa's motion on July 16, 2010, opposing summary judgment or, in the alternative, requesting additional time for discovery. Pl.'s Mot. for Extension of Time to Conduct Disc. and Opp'n to Summ. J. Mot. of Def. Steele (Docket # 59) ( Pl's Opp'n to Steele Mot.); Pl's Appl. Under Fed.R.Civ.P. 56(f) and Opp'n to Defs.' Mot. for Summ. J. (Docket # 66) ( Pl.'s Opp'n to Johnson and Sousa Summ. J. Mot.). On July 29, 2010, Messrs. Steele, Sousa and Johnson replied to OfficeMax's opposition. Def. Steele's Reply in Supp. of His Mot. for Summ. J. (Docket # 76) ( Steele Summ. J. Reply ); Defs. Sousa and Johnson's Reply in Supp. of Their Mot. for Summ. J. (Docket # 78) ( Sousa and Johnson Summ. J. Reply ).

On the same day, Mr. Steele moved to strike Exhibit F from OfficeMax's opposition. Def. Steele's Mot. to Strike Ex. Submitted by PL in Opp'n to Steele's Mot. for Summ. J. on the Grounds that PL Withheld This Doc. in Disc. Claiming It Was Irrelevant (Docket # 77) ( Steele Mot. to Strike ). OfficeMax responded to Mr. Steele's Motion to Strike on August 23, 2010. Pl.'s Opp'n to Def. Steele's Mot. to Strike Ex. Submitted by PL in Opp'n to Steele's Mot. for Summ. J. (Docket # 93) ( Pl.'s Opp'n to Steele Mot. to Strike ). On September 7, 2010, Mr. Steele replied. Def. Steele's Reply in Supp. of Mot. to Strike (Docket # 107) ( Steele Reply to Mot. to Strike ).

On December 6, 2010, the Court granted OfficeMax's request to engage in Rule 56(d) discovery and, accordingly, OfficeMax submitted a supplemental opposition to Mr. Steele's summary judgment motion. Order on Pl.'s Appl. for Additional Time for Disc. and Mot. to Supplement its Opp'n to Def. Steele's Mot. for Summ. J. (Docket # 218) ( Disc. Order ); Pl.'s Supplemental Opp'n to Summ. J. Mot. of Def. Steele (Doc. # 220) ( Pl.'s Supp. Opp'n to Steele Mot.). On December 24, 2010, Mr. Steele replied.² Def. Steele's Supplemental Reply to Pl.'s Supplemental Opp'n to Summ. J. Mot. of Def. Steele (Docket # 228) ( Steele Supp. Summ. J. Reply ).

On November 29, 2010, the Defendants moved for sanctions under Rule 37. Defs.' Mot. for Sanctions Pursuant to F.R.C.P. 37 (Docket # 211) ( Defs.' Sanctions Mot.). OfficeMax responded in opposition on December 30, 2010. Pl.'s Opp'n to Defs.' Mot. for Sanctions Pursuant to F.R.C.P. 37 (Docket # 231) ( Pl.'s Sanctions Opp'n ). The Defendants replied. Defs.' Reply in Further Support of Defs.' Mot. for Sanctions Pursuant to F.R.C.P. 37 (Docket # 237).

3. Plaintiffs Motions for Summary Judgment and to Exclude

On August 13, 2010, OfficeMax moved for summary judgment on Mr. Steele's counterclaims. Pl.'s Mot. for Summ. J. on Countercls. of Def. John Steele (Docket # 122) ( Pl.'s Steele Summ. J. Mot.). On October 29, 2010, Mr. Steele filed an opposition and on November 17, 2010, OfficeMax replied. Opp'n of Def. John Steele to Pl.'s Mot. for Summ. J. on Countercls. (Docket # 172) ( Steele Summ. J. Opp'n ); Pl.'s Reply to Def. Steele's Opp'n to Pl.'s Mot. for Summ. J. on Countercls. (Docket # 186) ( Pl.'s Steele Summ. J. Reply ).

On September 13, 2010, OfficeMax moved for partial summary judgment against Messrs. Johnson and Sousa on Counts I and II of its Complaint and on Counts I and II of their counterclaims, and on October 29, 2010, it refiled a revised motion.³ Mot. by PL for Partial Summ. J. Against Defs. Sousa and Johnson as to Counts One and Two (Docket # 125); Mot. by Pl. for Partial Summ. J. Against Defs. Sousa and Johnson as to Counts I and II of the Compl. and Counts I and II of Defs.' Countercls. (Docket # 197) ( Pl.'s Sousa and Johnson Summ. J. Mot.). On October 28, 2010, Messrs. Sousa and Johnson each filed an opposition and on December 6, 2010, OfficeMax filed a consolidated reply. Opp'n of Def. Denis Sousa to Pl.'s Mot. for Summ. J. (Docket # 161) ( Sousa Summ. J. Opp'n ); Opp'n of Def. George Johnson to Pl.'s Mot. for Summ. J. (Docket # 166) ( Johnson Summ. J. Opp'n ); Pl.'s Reply to the Opp'ns of Def. Sousa and Def. Johnson to Pl.'s Mot. for Partial Summ. J. (Docket # 200) ( Pl.'s Sousa and Johnson Summ. J. Reply ).

On December 24, 2010, OfficeMax moved to exclude two affidavits by Edmund Gagne and their attached exhibits, which Messrs. Sousa and Johnson had submitted in support of their opposition to OfficeMax's motion for partial summary judgment. Pl.'s Mot. to Exclude Defs.' Ex. A (Docket Nos. 164, 164–1, and 164–2) and Rider Decl. Ex. F (Docket No. 165–9) from the R. in Relation to Pl.'s Mot. for Partial Summ. J. Against Defs. Sousa and Johnson (Docket # 208) ( Pl.'s Mot. to Exclude ). On November 30, 2010, Messrs. Sousa and Johnson opposed OfficeMax's motion to exclude the Gagne declarations. Defs.' Opp'n to OfficeMax's Mot. to Exclude Gagne Decl. (Docket # 213) ( Defs.' Opp'n to Mot. to Exclude ). On December 6, 2010, OfficeMax replied. Pl.'s Reply to Defs.' Opp'n to Pl.'s Mot. to Exclude (Docket # 223) ( Pl.'s Reply Mot. to Exclude ).

B. George Johnson and Denis Sousa

From 1972 through October 9, 2009, Denis Sousa worked for OfficeMax, BCOP, or their predecessors. Statement of Material Facts in Supp. of the Mot. of Defs. Denis Sousa and George Johnson for Summ. J. ¶ 1 (Docket # 48) (Sousa and Johnson SMF); Pl.'s Resp. to Defs. Sousa and Johnson's Statement of Material Facts ¶ 1 (Docket # 65) (Resp. to Sousa and Johnson SMF). On November 16, 2001, Mr. Sousa signed an agreement (the Sousa BCOP Agreement) with BCOP. Pl.'s Opp'n to Johnson and Sousa ...