Miner, Ltd. v. Anguiano
Miner, Ltd. v. Anguiano
Opinion of the Court
Before the court is "Plaintiff Miner, Ltd.'s Renewed Motion for Preliminary Injunction" ("Motion") [ECF No. 20], filed March 8, 2019 by Miner, Ltd. ("Plaintiff"); "Plaintiff Miner Ltd.'s Supplemental Brief in Support of Renewed Motion for Preliminary Injunction" ("Supplemental Brief") [ECF No. 33], filed April 29, 2019; and "Defendants' Response to Plaintiff's Renewed Motion for Preliminary Injunction" [ECF No. 37], filed May 6, 2019 by Defendants Paul Anguiano ("Anguiano") and Paseo Del Norte Dock Products, Inc. ("PDN") (collectively, "Defendants"). After due consideration, the Motion is GRANTED.
I. BACKGROUND
A. Factual Background
On January 29, 2019, Plaintiff filed suit in the San Antonio Division of the Western District of Texas, seeking injunctive relief and damages arising out of alleged misconduct by Anguiano, a former employee of Plaintiff, and PDN, his new employer.
Plaintiff is a national company that sells, installs, and services material handling equipment and loading dock products across the nation.
1. Subscription and Transaction Agreement and Second Amended and Restated Limited Liability Agreement
Anguiano became a managing member of Plaintiff in exchange for purchasing shares in Plaintiff in June 2012.
Section 1.2 Closing. The sale and purchase of the Purchased Units shall take place on the Closing Date (as defined in the Purchase Agreement) (the "Closing"). At the Closing, (a) the Company shall issue and sell to each Purchaser such Purchaser's Purchased Units and (b) each Purchaser shall deliver to the Company cash by wire transfer of immediately available funds to an account designated by the Company prior to the Closing, or by such other mechanism as the Company and such Purchaser may agree, in the amount of such Purchaser's Purchase Price.
...
Section 1.4 Non-Competition: Non-Solicitation.
1.41 For a period set forth next to the name of such Purchaser or Non-Purchaser Stockholder on Appendix A hereto commencing on the date of the Closing, each Purchaser and Non-Purchaser Stockholder shall not, directly or indirectly (whether by himself or itself, through an affiliate or in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person):
(a) undertake, participate or carry on or be engaged or have any financial or other interest in, or in any other manner advise or assist any other Person in connection with the operation of, the business of providing repair service, planned maintenance support, sales and installation, equipment modernization, diagnostics and analytics services for truck loading dock equipment, *689commercial doors, recycling/waste handling equipment, material handling equipment, security and access control solutions, storefront glass systems to customers, and similar equipment and fixtures located at retail, distribution, manufacturing, healthcare and hospitality companies ("Competing Business") anywhere in North America or any other geographic location in which the Company or its affiliates engages in business;
(b) solicit, entice, encourage or intentionally influence, or attempt to solicit, entice, encourage or influence, any employee of the Company, MHE, the Companies (as defined in the Purchase Agreement) or their respective affiliates to resign or leave the employ of the Company, MHE, the Companies or their respective affiliates or otherwise hire, employ, engage or contract any such employee to perform services other than for the benefit of the Company, MHE, the Companies or their respective affiliates; or
(c) solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any customer of the Company, MHE, the Companies or their respective affiliates (including any Person who has been a customer of the Companies at any time during the period of 12 months before the Closing) to alter, reduce or terminate its business relationship with the Company, MHE, the Companies or their respective affiliates for the direct or indirect benefit of any Competing Business.
For the avoidance of doubt, with respect to each Purchaser and Non-Purchaser Stockholder, the covenants contained in this Section 1.4.1 are in addition to any other non-compete, non-solicit or similar restrictions between such Purchaser or Non-Purchaser Stockholder, on the one hand, and the Company or any of its affiliates, on the other hand, including those contained in the Limited Liability Company Agreement or any employment agreement with such Purchaser or Non-Purchaser Stockholder.19
An attached appendix to the Subscription Agreement specifies that Anguiano was subject to a non-compete and non-solicitation period for a duration of two years from the closing of the sale.
CI (MHE) Holdings, LLC and Anguiano entered into another agreement five days later on December 17, 2012: the "Second Amended and Restated Limited Liability Company Agreement" ("Amended LLC Agreement").
Section 12.3 Post Employment
(a) Each Management Member further agrees that, for a period of three (3) years (or such other period as may be specified in the Subscription Agreement or Profits Interest Award Agreement relating to such Management Member) after the cessation or termination of his or her employment or consultancy with the Company or its applicable Subsidiary, whether voluntary or involuntary, with or without cause (the "Non-Compete Period"), he or she shall not, either directly or indirectly: (i) engage in the Business for such Management Member's own account; (ii) render any services or give advice related to the Business to or for any Person that is engaged or is about to become engaged *690in the Business; (iii) assist any other Person to engage in any activities competitive with the Business of the Company or any Subsidiary of the Company; or (iv) become, directly or indirectly (and whether or not for compensation), a stockholder, partner, member, manager, employee, contractor, agent or consultant of (or establish any other similar affiliation, relationship or capacity with) any Person that is engaged or is about to become engaged in the Business, other than passive ownership as a portfolio investment (with no director designation rights or other special governance rights) of no more than five percent (5%) of the outstanding equity securities of any corporation listed on a national securities exchange.
(b) Without limiting the foregoing, each Management Member further agrees that, for a period of three (3) years (or such other period as may be specified in the Subscription Agreement or Profits Interest Award Agreement relating to such Management Member) after the cessation or termination of his or her employment or consultancy with the Company or its applicable Subsidiary, whether voluntary or involuntary, with or without cause (the "Non-Solicit Period"), he or she shall not, either directly or indirectly, hire, solicit (or encourage any other Person to hire or solicit) or encourage to leave the employment of the Company or any Subsidiary of the Company, any Person, whether full or part-time, who is an officer, employee, contractor or consultant (other than a contractor or consultant who is a third party service provider whose services are generally available) of, or to, the Company or any Subsidiary of the Company on the date hereof or who has been employed or engaged by the Company or any Subsidiary of the Company within one (1) year prior to the date of such hiring or solicitation. Notwithstanding the foregoing, general solicitations of employment published in a newspaper, over the Internet, or in another publication of general circulation and not specifically directed towards such officers, employees or consultants shall not be deemed to constitute solicitation for purposes of this Section 12.3(b).
(c) Without limiting the foregoing, each Management Member further agrees that during the Non-Solicit Period, he or she shall not, directly or indirectly, seek to induce or otherwise cause any customer, supplier, vendor, licensee or any other Person with whom the Company or any Subsidiary of the Company then has, or during the twelve (12) months prior to such time had, a business relationship, whether by contract or otherwise, to discontinue or alter in a manner adverse to the Company or any Subsidiary of the Company, such business relationship.22
Article XII of the Amended LLC Agreement includes restrictive covenants for a period of three years following the cessation of the managing member's employment, that is, the termination of Anguiano's employment with Plaintiff.
2. Anguiano's Promotion in April 2016
In April 2016, Anguiano received a promotion to Account Executive for Plaintiff's El Paso location-focusing on customers in El Paso, Texas; Ciudad Juarez, Mexico; and Santa Teresa, New Mexico.
The Employment Agreement provides:
Section 1. In General. This Non-Competition, Non-Solicitation and Confidentiality Agreement (the "Agreement") is entered into by and between Paul Anguiano. ("Employee") and Material Handling Services, LLC, a Delaware limited liability company (together with all of its subsidiaries and affiliates, and their respective successors and assigns, the "Company"), as of April, 2016.
Section 2. Restrictive Covenants
(a) Non-Compete. Employee acknowledges that by virtue of his or her respective position with the Company, he or she has developed considerable expertise in the business of the Company. During the Employee's termination of employment for any reason (the "Non-Competition Period"), the Employee shall not, without the prior written consent of the Company, and whether as employee, principal, agent, shareholders, partner, consultant, advisor, limited liability company manager or member, director, or otherwise, directly or indirectly, compete anywhere in North America or any other geographic location in which the Company engages in business or has taken active steps towards engaging in business as of the date of Employee's termination of employment, with the Company or any Affiliate (as defined herein) of the Company in the business of providing repair service, planned maintenance support, sales and installation, equipment modernization, diagnostics and analytics services for truck loading dock equipment commercial doors, recycling/waste handling equipment, material handling equipment, security and access control solutions, storefront glass systems to customers, and similar equipment and fixtures located at retail, distribution, manufacturing, healthcare and hospitality companies or providing material handling equipment and fleet management and maintenance services, as conducted by the Company or any Affiliate of the Company, or in any other business activity directly related to the business in which the Company is now involved or becomes involved during the term of Employee's employment (the "Business"), nor will Employee engage in any other activities that conflict with his obligations to the Company. The making or guarantying of a loan, lease or any other financial arrangement to, with or for any person or entity that engages in any of the activities described in the preceding sentence shall be deemed ...
(b) Non-Solicitation of Employees and Customers During the Non-Competition Period, Employee will not, directly or indirectly, (i) recruit, provide services to, engage the services of, or otherwise solicit or induce any person, who is or who has been, within two years prior to that time, an employee, customer, contractor, subcontractor, independent consultant, sales representative or supplier of the Company or any of its affiliates ... to terminate its employment or arrangement with the Company or any of its affiliates ... otherwise change its relationship with the Company or any of its affiliates ... or establish any relationship with the Employee or any of his or *692her affiliates to compete with the Company or any of its affiliates in the Business or (ii) without the Company's prior written consent, hire or engage the services of (a) any employee of the Company or any of its affiliates ... or (b) any person who has been, within two years prior to that time, an employee of the Company or any of its affiliates.
(d) Confidentiality. Employee shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his benefit or the benefit of any person, firm, corporation or other entity any confidential or proprietary information or trade secrets of or relating to the Company, including, without limitation, information with respect to the Company's operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relations, regulatory status, compensation paid to employees or other terms of employment, or deliver to any person, firm, corporation or other entity any document, records, notebook, computer program or similar repository of or containing any such confidential or proprietary information or trade secrets ....27
3. Anguiano's Separation from Plaintiff
Anguiano voluntarily left his employment with Plaintiff on January 3, 2017.
Following his separation, Anguiano started working with PDN as an independent contractor.
Plaintiff seeks a preliminary injunction to: "(1) restrain Anguiano from soliciting Miner's clients, employees, and/or vendors; (2) restrain Defendants from [tortiously] interfering with Miner's existing contractual relations; (3) restrain Anguiano from disclosing and using Miner's Proprietary Information (including, but not limited to, its trade secrets); and (4) require Anguiano to cooperate in Miner's investigation into his potential violation of state and federal privacy law."
B. Procedural Background
On January 30, 2019, Plaintiff moved for a preliminary injunction and to expedite discovery in order to prepare for a hearing on the motion for a preliminary injunction.
The case was assigned to this court: On March 8, 2019, Plaintiff refiled its motion for a preliminary injunction, its motion for a hearing on the motion for a preliminary injunction, and its motion to expedite discovery.
C. Parties' Arguments
1. Plaintiff's Arguments
Plaintiff claims it "has unequivocally established the acute need for a preliminary injunction."
Plaintiff asserts the restrictive covenants in the Amended LLC Agreement-which applies for a duration of three years following the termination of his employment-are reasonable and enforceable.
*694and (2) the restrictive covenants in the Amended LLC Agreement are reasonable and protect Plaintiff's "legitimate business interests."
In the alternative, Plaintiff seeks to enforce the restrictive covenants in the Employment Agreement,
Plaintiff asserts the court should reform the restrictive covenants in the Amended LLC Agreement or the Employment Agreement as appropriate in the event the court determines the restrictive covenants are overbroad.
Lastly, Plaintiff asserts Anguiano violated the DTSA and TUTSA when he accessed and transmitted trade secrets to personal devices and used these trade secrets to gain an unfair competitive advantage.
2. Defendants' Arguments
In opposition, Defendants argue Anguiano did not violate the restrictive covenants, claiming there are no enforceable restrictive covenants.
Defendants also assert that the Employment Agreement is unenforceable under Texas law as it is (1) devoid of any consideration; and (2) unreasonable in time, scope, and geography.
II. LEGAL STANDARD
A preliminary injunction "is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion."
(1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.67
A movant need not prove it is entitled to summary judgment in order to show a likelihood of success.
If the movant fails to carry its burden on any one of the four elements, the court must deny the request for preliminary injunctive relief.
III. DISCUSSION
A. Substantial Likelihood of Success on the Merits
1. Enforceability of Restrictive Covenants in the Employment Agreement
a. Non-Compete Covenant
Plaintiff seeks to enforce the Employment Agreement, entered into on April 29, 2016.
Texas Business and Commerce Code § 15.50 (" Section 15.50") governs the enforceability of non-compete covenants.
[A] covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the *696time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.77
Accordingly, the court must address whether Plaintiff has satisfactorily shown (1) the restrictive covenant is ancillary to or part of an otherwise enforceable agreement; and (2) the restrictions are reasonable.
i. Ancillary to or Part of an Otherwise Enforceable Agreement
Covenants that place limits on former employees' professional mobility or restrict their solicitation of the former employers' customers and employees are restraints on trade.
Defendants argue the Employment Agreement lacks consideration.
Texas courts have regularly found there is an enforceable agreement supporting a non-compete covenant where an employer promises to provide an employee with confidential information and the employee promises not to disclose such confidential information.
[I]f the nature of the employment for which the employee is hired will reasonably require the employer to provide confidential information to the employee for the employee to accomplish the contemplated job duties, then the employer impliedly promises to provide confidential information and the covenant is enforceable so long as the other requirements of the Covenant Not to Compete Act are satisfied.90
Courts may imply a return promise where one party's express promise "cannot reasonably be performed absent some type of performance by the other party."
In the Employment Agreement's confidentiality covenant, Anguiano expressly promised "to maintain in confidence and ... not ... use, disseminate, disclose or publish ... any confidential or proprietary information or trade secrets ...."
This implied promise was illusory unless Plaintiff performed by providing Anguiano with confidential information.
Plaintiff has not persuaded this court that this case involved the dissemination of "confidential information." In DeSantis v. Wackenhut Corporation ,
Like Wackenhut , Plaintiff has not shown its business practices, pricing, margin, or strategy were uniquely developed or not readily accessible. Furthermore, Plaintiff's alleged "confidential information" is vague at best. Plaintiff struggles to identify and expand upon the alleged confidential information. The court will not infer a fact into existence. The Employment Agreement lacks consideration and is unenforceable.
Accordingly, Plaintiff has not established the Employment Agreement is enforceable to warrant preliminary injunctive relief.
2. The Subscription Agreement and Amended LLC Agreement
Alternatively, Plaintiff argues restrictive covenants in the Amended LLC Agreement are binding on Anguiano.
a. Enforceability of the Non-Compete Covenant
i. Ancillary to or Part of an Otherwise Enforceable Agreement
Plaintiff asserts the restrictive covenants in the Amended LLC Agreement are binding on Anguiano, as they are supported by consideration and are reasonable in scope.
There is an "otherwise enforceable agreement" where the covenant is "part of an agreement that contained mutual non-illusory promises."
ii. Interpretation
Although the Amended LLC Agreement is a valid agreement containing restrictive covenants, the parties dispute the interpretation of the contract-particularly, the duration of the non-compete and non-solicitation period.
"Each Management Member further agrees that, for a period of three (3) years (or such other period as may be specified in the Subscription Agreement or Profits Interest Award Agreement relating to such Management Member) after the cessation or termination of his or her employment ...."114
Plaintiff interprets the non-compete provision as applicable for a period of three years following Anguiano's separation from Plaintiff.
Importantly, Section 1.4 of the Subscription Agreement provides that the purchaser is subject to the non-competition and non-solicitation covenants "[f]or a period set forth next to the name of such Purchaser or Non-Purchaser Stockholder on Appendix A hereto commencing on the date of the Closing ...."
The interpretation of the contract hinges on the use of the word "or": "for a period of three (3) years (or such other period as may be specified in the Subscription Agreement or Profits Interest Award Agreement relating to such Management Member)."
Accordingly, the court must evaluate the meaning of "or." "Language used by parties in a contract should be accorded its plain, grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated."
At first glance, the language in the Amended LLC Agreement appears ambiguous. At this preliminary stage of litigation, the court declines to rule as a matter of law on the applicable non-compete duration. In light of the multiple agreements before this court, the limited expedited discovery period, and continuing discovery, the court finds it in the interest of justice to resolve this matter of contractual interpretation at the summary judgment stage of litigation. This will permit the court to consider the multiple agreements in this case-all of which contain restrictive covenants-following the full development of the record and the completion of discovery.
The court finds Plaintiff has established a prima facie case of an enforceable non-compete covenant. While the issue of the duration of the restrictive covenant remains unsettled, the court may progress to the next consideration: whether the restraints in the restrictive covenant are consistent with Texas law.
*701iii. Reasonableness of Restrictions
A non-compete covenant is in restraint of trade and therefore unenforceable on public policy grounds unless it is reasonable.
If the covenant is found to be ancillary to or part of an otherwise enforceable agreement but contains limitations as to time, geographical area, or scope of activity to be restrained that are not reasonable and impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee, the court shall reform the covenant to the extent necessary to cause the limitations contained in the covenant as to time, geographical area, and scope of activity to be restrained to be reasonable and to impose a restraint that is not greater than necessary to protect the goodwill or other business interest of the promisee and enforce the covenant as reformed ....127
The restraint "must not be greater than necessary to protect the promissee's legitimate interest."
Plaintiff requests the court "enjoin Defendants from competing with Miner in the exact regions where Anguiano regularly used Miner pricing information and strategy."
After consideration of the multiple competing agreements, the expedited discovery period, and the remaining unsettled issues of law, the court believes a cautious approach is most appropriate until a later judgment on the merits. Accordingly, the court restricts the geographic scope of the non-compete covenant to El Paso County, Texas and the country of Mexico.
b. Enforceability of Non-Solicitation Covenants
Like the non-compete covenant, the non-solicitation covenants are only valid if they are ancillary to or part of an otherwise enforceable agreement. As determined above, the restrictive covenants are ancillary to an otherwise enforceable agreement. With respect to the reasonableness of the non-solicitation covenant, the court finds it reasonable to the extent it prohibits PDN from soliciting clients Anguiano served while an employee of Plaintiff.
*7023. Trade Secrets
Plaintiff further seeks to restrain Defendants from using its trade secrets.
TUTSA defines trade secrets and misappropriation of trade secrets.
A party can misappropriate a trade secret in two ways. Under one avenue, a party misappropriates a trade secret if she knows or has reason to know the trade secret was acquired through improper means."
a. Whether the Information is a Trade Secret
Once a court determines the information existed, the court must evaluate whether the information is a trade secret.
(1) the extent to which the information is known outside of his business;
(2) the extent to which it is known by employees and others involved in his business;
(3) the extent of the measures taken by him to guard the secrecy of the information;
(4) the value of the information to him and to his competitors;
(5) the amount of effort or money expended by him in developing the information; [and]
(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.147
A party need not satisfy all six factors.
i. Excel Calculator
Plaintiff alleges Anguiano misappropriated an Excel calculator containing formulas used to calculate profit margins.
[T]he margins aren't calculated by the calculator until the data is put in. So until all the pricing information, intended and expected profit margins, until those data fields are populated, that calculator doesn't do anything. It just sits there.151
Information is valuable when it provides the competitor details about a product or service that give them a competitive advantage.
Additionally, Plaintiff has not shown it expended considerable money and effort developing the information. Although Plaintiff contends it took sufficient security precautions and the alleged information was not readily accessible, it has not persuaded this court that the Excel calculator *704actually contained any protected information. Without the existence of information worthy of trade-secret protection, security measures and lack of accessibility are inapposite. Moreover, Plaintiff's representative concedes the price quotes could be computed by pencil and paper.
After a consideration of the Bass factors, the court finds Plaintiff has failed to establish a prima facie case that the Excel calculator qualifies as a trade secret.
ii. Sales Quote Sheet
Additionally, Plaintiff has not persuaded this court that the sales quote sheet constitutes a trade secret. First, the quote sheet is reasonably well-known, as it is available in the public domain.
Secondly, the sales quote sheet was widely accessible. Plaintiff's employees used the quote sheet to provide cost information to customers. As it was widely accessed by Plaintiff's employees and clients, there were no limitations on who could obtain the information.
Nor has Plaintiff shown the sales quote sheet contains any valuable information.
After careful consideration, the court finds Plaintiff has not established the sales quote sheet qualifies as a trade secret.
iii. General Know-How and Customer List
Plaintiff contends Anguiano misappropriated a customer list and "know[-]how" he acquired during his employment with Plaintiff.
Second, "[m]atters of general knowledge in an industry" are not trade secrets.
As Plaintiff has not pointed to any information entitled to trade-secret protection, the court need not address whether Anguiano acquired the secret through improper means and whether the use of the secret resulted in harm. In sum, Plaintiff has failed to show the documents, if any, contained information entitled to trade-secret protection.
Plaintiff has demonstrated a likelihood of success on the merits of the enforceability of the restrictive covenants in the Amended LLC Agreement.
B. Irreparable Harm
A plaintiff seeking preliminary injunctive relief must demonstrate irreparable injury is likely in absence of an injunction.
Anguiano testified that PDN "basically" does "the same type of service" as Miner.
The court finds Miner has shown sufficient potential for irreparable injury at this preliminary stage.
C. Balancing of Harms
Next, the court must balance the potential harm to Plaintiff with the hardship to Defendants if an injunction is not *706issued.
D. Public Interest
Finally, the court considers whether granting the preliminary injunction will not disserve the public interest.
IV. CONCLUSION & ORDERS
In sum, Plaintiff has established the four factors required to issue a preliminary injunction. The court enters the following orders:
1. It is HEREBY ORDERED that "Plaintiff Miner, Ltd.'s Renewed Motion for Preliminary Injunction" [ECF No. 20] is GRANTED.
2. It is FURTHER ORDERED that Defendants Paseo Del Norte and Paul Anguiano are ENJOINED from the following activities:
3.
a. Paul Anguiano is enjoined from competing against Miner, Ltd. in El Paso County, Texas and the country of Mexico.
b. Paseo Del Norte and Paul Anguiano is enjoined from soliciting and doing business with clients of Miner that Anguiano served during his employment with Miner.
4. Miner SHALL post a bond in the amount of $ 200,000 as security, which the court finds adequate for payment of such damages as any party may be entitled to recover as a result of a wrongful restraint under this order.
5. This order shall remain in effect until a final judgment is entered.
SO ORDERED.
See "Complaint for Injunctive Relief and Damages and Demand for Jury Trial" ("Compl."), ECF No. 1, filed Jan. 29, 2019.
Compl. 23-25.
"Appendix in Support of Plaintiff's Supplemental Brief in Support of Renewed Motion for Preliminary Injunction" ("App'x."), ECF No. 36, Ex. A (under seal).
App'x, "Oral Deposition of Paul Anguiano" ("Anguiano Depo") 41: 9-11, Ex. B.
See App'x, "Second Amended and Restated Limited Liability Company Agreement" ("Am. LLC Agreement"), Ex. F.
App'x, "Subscription and Transaction Agreement" ("Subscription Agreement"), Ex. P.
See
App'x., "Second Amended and Restated Limited Liability Company Agreement" ("Am. LLC Agreement"), Ex. F.
App'x., "Declaration of Paul Anguiano" ("Anguiano Decl.") 2 ¶ 5.
App'x, Employment Agreement, Ex. G.
Employment Agreement § 2.
Anguiano Decl. 2 ¶ 8.
App'x., Separation and Release Agreement ("Sep. Agreement") ¶¶ 4, 6, Ex. N.
Anguiano Depo. 10:8-22.
"Plaintiff Miner Ltd.'s Supplemental Brief in Support of Renewed Motion for Preliminary Injunction" ("Supp.") 3, ECF No. 33, filed Apr. 29, 2019.
"Plaintiff Miner, Ltd.'s Renewed Motion for Preliminary Injunction" ("Mot.") 21, ECF No. 20, filed Mar. 8, 2019.
"Plaintiff Miner, Ltd.'s Motion for Preliminary Injunction" 1, ECF No. 2, filed Jan. 30, 2019; "Motion for Expedited Discovery" 1, ECF No. 3, filed Jan. 30, 2019.
"Order" 3, ECF No. 5, filed Feb. 1, 2019 (vacated).
"Order" 2, ECF No. 6, filed Feb. 1, 2019.
See "Plaintiff's Renewed Motion for Expedited Discovery" 1, ECF No. 11, filed Feb. 7, 2019.
See "Defendants' Motion to Transfer Venue and Motion for Stay of Proceedings" 1, ECF No. 12, filed Feb. 8, 2019.
"Transfer Order" 5, ECF No. 19, filed Mar. 7, 2019.
See
Defendants requested the court order Plaintiff "to cease attempting through email to the Court's Deputy to reargue motions already on file, to add allegations against Defendants, to infer dilatory actions by Defendants, or to try to tell the Court how to prioritize its docket." "Motion for Sanctions" 1, ECF No. 17, filed Mar. 4, 2019.
See generally Mot.; "Motion for Hearing on Motion for Preliminary Injunction," ECF No. 22, filed Mar. 11, 2019; "Plaintiff's Second Renewed Motion for Expedited Discovery," ECF No. 21, filed Mar. 8, 2019.
"Order Regarding Expedited Discovery" 6, ECF No. 25, filed Mar. 20, 2019.
See generally "Preliminary Injunction Hearing Before the Honorable Frank Montalvo United States District Judge" ("Hearing Transcript"), ECF No. 47.
Supp. 7.
Supp. at 14.
Supp. at 20.
Defendants' Response to Plaintiff's Renewed Motion for Preliminary Injunction" ("Resp.") 2, ECF No. 37, filed May 6, 2019.
See
Resp. 15.
White v. Carlucci ,
Google, Inc. v. Hood ,
Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C. ,
Holland ,
Miss. Power & Light Co. v. United Gas Pipe Line Co. ,
See Fed. R. Civ. P. 65(c).
Supp. 14.
Employment Agreement § 2.
Resp. at 9, 12.
Tex. Bus. & Com. Code § 15.50.
Marsh USA Inc. v. Cook ,
Tex. Bus. & Com. Code § 15.50(a) ; Marsh USA Inc. ,
Marsh USA, Inc. ,
Resp. 7.
Fed. Sign v. Tex. S. Univ. ,
Hunn v. Dan Wilson Homes, Inc. ,
Sheshunoff ,
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding ,
Fielding ,
Employment Agreement § 2(d).
See generally
Fielding ,
Hearing Transcript 16: 13-18, ECF No. 47.
Supp. 9.
Am. LLC Agreement 12.3.
Tex. Bus. & Com. Code § 15.50.
Supp. 9, 12.
Tex. Bus. & Com. Code § 15.50(a) ; Marsh USA Inc. v. Cook ,
Marsh USA ,
DeSantis v. Wackenhut Corp. ,
See generally Am. LLC Agreement.
Supp. 15; Resp. 2.
Am. LLC Agreement § 12.3.
Am. LLC Agreement § 12.3(a).
Supp. 9.
Resp. 2-3 (citing Am. LLC Agreement 12.3(a)) (emphasis added).
Subscription Agreement § 1.4.
Subscription Agreement, Appx. A.
Subscription Agreement § 1.4.
Nicol v. Gonzales ,
Universal Health Servs., Inc. v. Renaissance Women's Group, P.A. ,
Kachina Pipeline Co., Inc. v. Lillis ,
Universal Health Servs., Inc. ,
Lyons v. Montgomery ,
Comm. Bank of Raymore v. Chesapeake Exploration, L.L.C. ,
DeSantis v. Wackenhut Corp. ,
Tex. Bus. & Com. Code § 15.51(c).
DeSantis ,
Tex. Bus. & Com. Code § 15.50(a) ; DeSantis ,
"Plaintiff Miner, Ltd.'s Supplemental Post-Hearing Brief" ("Post-Hearing Brief") 5, ECF No. 45, filed May 22, 2019.
"Preliminary Injunction Order," ECF No. 43, filed May 21, 2019 (proposed order).
"Defendants' Notice of Submission of Proposed Preliminary Injunction, ECF No. 44, filed May 21, 2019, "Preliminary Injunction," ECF No. 44-1 (proposed order).
Mot. 17 ("restrain Anguiano from disclosing and using Miner's Proprietary Information (including, but not limited to, its trade secrets").
Resp. at 11-12. In their Response, Defendants identify Plaintiffs alleged trade secrets as a sales quote sheet, an Excel calculator, a client list, and know-how. Plaintiff does not dispute this identification of the alleged trade secrets.
Mot. at 2.
Resp. 14-18.
Tex. Civ. Prac. & Rem. Code § 134A.002.
See Trilogy Software, Inc. v. Callidus Software, Inc. ,
Tex. Civ. Prac. & Rem. Code § 134A.002(6)(A)-(B). The quoted portions are verbatim in
Tex. Civ. Prac. & Rem. Code § 134A.002(5). The provision in the DTSA is relevantly similar: "the term 'trade secret' means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing."
Tex. Civ. Prac. & Rem. Code § 134A.002(3)(A) ;
Tex. Civ. Prac. & Rem. Code Ann. § 134A.002(2). The definition in the DTSA is the same except it omits "to limit use, or to prohibit discovery of a trade secret."
A person misappropriates a trade secret if she used improper means to acquire the knowledge, owed the party seeking relief a duty to keep the information secret, or acquire the secret "under circumstances giving rise to a duty to maintain the secrecy...of the trade secret." Tex. Civ. Prac. & Rem. Code § 134A.002(3)(B) ;
In re Bass ,
Supp. 18-19.
Hearing Transcript 30: 12-14 ("The Excel calculator is, in fact, an Excel spreadsheet. It's not like an Excel spreadsheet. It is an Excel spreadsheet.").
In re Cooper Tire & Rubber Co. ,
Resp. 17.
Id. at 16.
See Sharma v. Vinmar Int'l, Ltd. ,
See, e.g. , Resp., "Oral Deposition of Ricardo Velasco, Jr." ("Velasco Depo.") 22: 9-15, Ex. B.
Resp. 16.
See In re Bass ,
Anguiano Depo. 67:4-16.
See In re Cooper & Rubber Co. ,
Compl. 14 ¶ 44.
Anguiano Depo. 81:4-83:9.
McClain v. State ,
See Zep Mfg. Co. v. Harthcock ,
Winter v. Nat. Res. Defense Council, Inc. ,
Humana, Inc. v. Jacobson ,
McKissock, LLC v. Martin ,
McKissock ,
Anguiano Depo. 18:5-7.
Id. at 18:16-19 (stating he sold to "probably about eight" Miner customers).
Post-Hearing Brief 3.
See Valley v. Rapides Parish School Bd. ,
Daily Instruments Corp. v. Heidt ,
Google, Inc. v. Hood ,
See, e.g. , Amerispec, Inc. v. Metro Inspection Servs., Inc. , No. 3:01-CV-0946-D,
See Employment Agreement § 2.
Reference
- Full Case Name
- MINER, LTD. v. Paul ANGUIANO, Paseo Del Norte Dock Products, Inc.
- Cited By
- 12 cases
- Status
- Published