RLM Commc'ns, Inc. v. Tuschen, 5:14–CV–250–FL.

• Decision Date: 07 November 2014
• Docket Number: No. 5:14–CV–250–FL.,5:14–CV–250–FL.
• Citation: 66 F.Supp.3d 681
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: RLM COMMUNICATIONS, INC., Plaintiff, v. Amy E. TUSCHEN and Escience and Technology Solutions, Inc., Defendants.

66 F.Supp.3d 681

RLM COMMUNICATIONS, INC., Plaintiff
v.
Amy E. TUSCHEN and Escience and Technology Solutions, Inc., Defendants.

No. 5:14–CV–250–FL.

United States District Court, E.D. North Carolina, Western Division.

Signed Nov. 7, 2014.
Unsealed Nov. 25, 2014.

66 F.Supp.3d 686

Jose A. Coker, R. Jonathan Charleston, The Charleston Group, Coy E. Brewer, Jr., Coy E. Brewer, Attorney at Law PLLC, Dharmi B. Tailor, The Charleston Group, Fayetteville, NC, for Plaintiff.

Michael C. Lord, Williams Mullen, Raleigh, NC, for Defendants.

ORDER

(SEALED)¹

LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on defendants' motion for summary judgment (DE 6), and plaintiff's motion for permanent injunction (DE 17). Also before the court is plaintiff's response to the court's order to show cause (DE 60) with respect to costs incurred in connection with defendant's motion to compel (DE 42). The motions have been fully briefed. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants defendants' motion, denies plaintiff's motion, and orders payment of costs in part as set forth herein.

STATEMENT OF THE CASE

Plaintiff filed suit in state court on April 17, 2014, seeking injunctive relief and damages against defendant eScience and Technology Solutions, Inc., (“eSTS”) and defendant Amy E. Tuschen (“Tuschen”), who is an employee of eSTS and a former employee of plaintiff. Plaintiff asserts nine claims for relief based upon defendants' allegedly improper use of confidential information and trade secrets: (1) breach of contract covenant not to compete, (2) breach of contract confidentiality agreement, (3) unfair and deceptive trade practices, (4) tortious interference with contractual relations, (5) misappropriation of trade secrets, (6) unjust enrichment, (7) civil conspiracy, (8) preliminary and permanent injunction, and (9) conversion.

The day after the complaint was filed, plaintiff obtained a temporary restraining order in state court. On April 25, 2014, defendants removed to this court on the basis of diversity jurisdiction. Defendants filed a motion to dismiss part of plaintiff's claims on April 27, 2014, and plaintiff filed an emergency motion for temporary restraining order on April 28, 2014. By text order entered April 29, 2014, this court granted the temporary restraining order on the terms and conditions set forth in the state court order.

That same date, plaintiff filed a second emergency motion to temporary restraining order, preliminary injunction, and to expedite discovery (DE 17). The court held an administrative conference on April 30, 2014, and, based upon discussion at the

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conference, the court directed the parties to tender a proposed consent order regarding temporary injunctive relief and case scheduling. Upon notice of the parties' respective positions, the court entered a preliminary injunction order on May 14, 2014, in part based upon consensus of the parties, and also based upon findings of fact and conclusions of law. Through scheduling order entered the same date, the court converted plaintiffs emergency motion into a motion for permanent injunction, and converted defendants' motion to dismiss into a motion for summary judgment to be supplemented upon further discovery and briefing as scheduled by the court.

Defendants alerted the court of a discovery dispute on May 27, 2014, and hearing was held before a magistrate judge partially resolving issues presented. Defendants filed a motion to compel on May 30, 2014, and an amended motion to compel on May 31, 2014 (DE 39, 42). Plaintiff filed a motion for protective order on June 13, 2014. The court stayed briefing on the dispositive motions in the case, and held motion hearing on June 16, 2014, whereupon the court granted the motion to compel and entered plaintiff's proposed protective order. Memorializing rulings at the June 16, 2014, hearing, the court set a revised briefing schedule on dispositive motions, and directed plaintiff to show cause why it should not pay defendants' costs incurred in connection with the motion to compel. Plaintiff filed a response to the show cause order on July 3, 2014, and the parties completed briefing on the dispositive motions on July 11, 2014.

STATEMENT OF FACTS

Viewing the evidence in the light most favorable to plaintiff, the material facts may be summarized as follows. Plaintiff is a North Carolina corporation with offices in North Carolina and Georgia. Plaintiff specializes in a variety of business services related to information technology, including information assurance; cyber security; infrastructure library and service-level management implementation; systems integration and audio visual support; and program management and staff support services.

On June 5, 2007, defendant Tuschen executed an employment agreement accepting plaintiff's offer of employment as a Training and Development Representative. On her first day at work, on June 14, 2007, defendant Tuschen executed a covenant not to compete, stating that while employed and for one year thereafter she would not “directly or indirectly participate in a business that is similar to a business now or later operated by [plaintiff] in the same geographical area,” among other restrictions. (DE 1–1 at 21). That same date, defendant Tuschen also executed a confidentiality agreement, stating that she would not “remove or copy any confidential information or materials” that she may have access to in her employment without plaintiff's permission, among other restrictions. (DE 1–1 at 23).

Plaintiff promoted defendant Tuschen several times during her employment with plaintiff, to positions including technical trainer, program manager, director of training operations, and director of information assurance. In each of her positions with plaintiff, defendant Tuschen was involved with oversight and provision of services to the United States government, including pursuant to a contract to provide information technology training to the United States Army, numbered W91249–12–C–0017 (the “Contract”), the term of which expired June 30, 2014. At times during the course of her employment, defendant Tuschen had access to and acquired for purposes of performing her

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duties information not available to the public regarding plaintiff's business strategies and resources for bidding on government contracts, including the Contract.

Around June 1, 2013, defendant Tuschen notified plaintiff of her resignation, effective June 13, 2013. She informed plaintiff and her co-workers before leaving that she intended to take a position with defendant eSTS. Prior to her last day, defendant Tuschen gathered data related to management and operations under the Contract and copied it onto a compact disc (CD). Defendant Tuschen gave the CD to her successor program manager on the Contract, plaintiff's employee Dennis Yelverton, before her last day. Plaintiff subsequently took possession of the CD.

Defendant Tuschen began employment with defendant eSTS on or shortly after June 13, 2013. Defendant eSTS is a South Carolina corporation with offices in South Carolina, Georgia, Virginia, and Maryland. Defendant eSTS is a business engaged in engineering and management support services, including through contracts with the United States government. Defendant eSTS employs defendant Tuschen as Director of Cyber and IT Solutions in the company's Augusta, Georgia, office. During the course of her employment with defendant eSTS, defendant Tuschen has been involved with developing a bid for a government contract (the “follow-on contract”) involving services similar to that provided by RLM under the Contract. The time period for bids on the follow-on contract originally was set to close in June 2014, but since was extended to October 24, 2014. Defendant Tuschen also has assisted eSTS during the course of her employment with soliciting employees of RLM to work for eSTS, in the event eSTS has the winning bid on the follow-on contract.

DISCUSSION

A. Motion for Summary Judgment

1. Standard of Review

Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party then affirmatively must demonstrate with specific evidence that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

“[A]t the summary judgment stage the [court's] function is not [itself] to weigh the evidence and determine the truth of...