United States District Court, D. New Hampshire
Daniel Marr, Esq. Mark M. Whitney,
MEMORANDUM AND ORDER
K. Johnstone United States Magistrate Judge
Michael Diehard brought this action in state court against
defendants Robert Morgan, Laureen Morgan, James Morgan, and
Jay-Mor Enterprises, Inc. ("Jay-Mor"), alleging
counts stemming from the termination of Diehard's
employment with Jay-Mor. Doc. no. 1-2. The defendants removed
the matter here, and Jay-Mor asserted a counterclaim against
Diehard alleging, among other things, that Diehard
misappropriated Jay-Mor's trade secrets in violation of
the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836,
et seq. See doc. no. 3 at 6. Diehard moves
for judgment on the pleadings on this trade secrets claim.
Doc. no. 8. Jay-Mor objects. Doc. no. 10. For the reasons
that follow, Diehard's motion is granted, albeit without
prejudice to Jay-Mor filing an amended counterclaim within
fourteen days of the issuance of this Order.
standard of review of a motion for judgment on the pleadings
under Federal Rule of Civil Procedure 12 (c) is the same as
that for a motion to dismiss under Rule 12(b) (6) ."
Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir.
2007). The court must accept the factual allegations in the
complaint as true, construe reasonable inferences in the
plaintiff's favor, and "determine whether the
factual allegations in the plaintiff's complaint set
forth a plausible claim upon which relief may be
granted." Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 71 (1st Cir. 2014) (citation and quotation marks
omitted). A claim is facially plausible "when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Analyzing plausibility is "a
context-specific task" in which the court relies on its
"judicial experience and common sense."
Id. at 67 9.
the factual allegations set forth in Jay-Mor's
counterclaim as true, the relevant facts are as follows.
is a family-owned demolition contracting business located in
Hudson, New Hampshire. See doc. no. 3, ¶ 6.
Jay-Mor's services include demolition, site work,
asbestos/hazardous materials removal, surveys, and equipment
and truck rental. Id. ¶ 7. Jay-Mor offers its
services in New Hampshire, Massachusetts, and Maine. See
id. ¶ 8.
is a former employee of Jay-Mor who represented Jay- Mor in a
senior-level business development role. Id. ¶
9. In exchange for his services, Jay-Mor provided Diehard
with an "unusually generous compensation package, "
which was memorialized in a contract dated September 9, 2014.
Id. ¶ 10. Diehard was responsible for
identifying and developing new business opportunities on
behalf of Jay-Mor. Id. ¶ 12. As such, Diehard
served Jay-Mor in a position of trust and confidence and had
"unfettered" access to Jay-Mor's confidential
business information. Id. ¶¶ 12-13.
other businesses in Jay-Mor's industry, Jay-Mor relied on
a variety of confidential business information. Id.
¶ 14. During Diehard's employment, much of
Jay-Mor's confidential information was stored in files
pertaining to jobs on which Jay-Mor was bidding. Id.
These files included information on how Jay-Mor calculated
its bids, cost data, overhead, and pricing-margin
information, as well as "bid worksheets" containing
Jay-Mor's method of bidding. Id. Jay-Mor asserts
that all of this information was non-public and would be of
tremendous value to competitors, prospective subcontractors,
vendors, and suppliers. See id. ¶ 14.
was employed with Jay-Mor, Diehard and other employees
developed two large demolition project opportunities for
Jay-Mor. Id. ¶ 16. One was located in Ayer,
Massachusetts for the Pan Am Railway ("Pan Am
project"). Id. The other was located in Nashua,
New Hampshire for the Sacred Heart School ("Sacred Heart
project").Id. The estimated potential revenue
for both projects exceeded $1 million. Id.
about March 2, 2017, Diehard tendered his resignation to
Jay-Mor. Id. ¶ 20. In his resignation letter,
Diehard specifically threatened to divert the revenue from
the Pan Am and Sacred Heart projects to other demolition
contractors to secure monies that he contended were owed to
him by Jay-Mor. Id. ¶ 21.
Diehard resigned, Jay-Mor conducted an investigation and
discovered that Diehard had absconded with the confidential
project files for the Pan Am and Sacred Heart projects.
Id. ¶ 22. Jay-Mor alleges, upon information and
belief, that Diehard stole or improperly retained additional
Jay-Mor confidential information and trade secrets when he
departed. Id. ¶ 23. Jay-Mor later learned that
Diehard offered the Pan Am project to other demolition
contractors. Id. ¶ 24. Jay-Mor believes that
Diehard is shopping the Pan Am and Sacred Heart projects to
additional demolition contractors, and is seeking to tie his
new employer into the deal in order to ensure that he is paid
commission. See id. ¶ 25.
filed its trade secrets claim on the basis of these
allegations. Jay-Mor specifically contends that Diehard
absconded and willfully misappropriated Jay-Mor's trade
secrets and confidential information, resulting in damages in