United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court on the plaintiff's motion for
a preliminary injunction (filing 18). The plaintiff's
primary claims are that the defendants, former employees of
the plaintiff, breached their duties to the plaintiff by
forming a competing business before leaving their employment,
and are competing with the plaintiff using trade secrets they
took from the plaintiff. But the plaintiff's evidence of
trade secrets is sparse at best, and the defendants were not
subject to any noncompete or confidentiality agreements-so,
the plaintiff has not persuaded the Court that what happened
in the past, even if actionable, can justify a
forward-looking preliminary injunction. Accordingly, the
plaintiff's motion will be denied.
plaintiff, PMI Nebraska, describes itself as "a
specialty millwright contractor providing services such as
repairs, rebuilding, renovations, and equipment installation
to material-handling industries across the state."
Filing 19 at 2. Two of the three defendants, David
Nordhues and Chris Golick, were previously employed by PMI
Nebraska: Nordhues as Vice President of Operations, and
Golick as a project coordinator. Filing 18-2 at 2;
see filing 40 at 1; filing 40-1 at 1. The remaining
defendant, Precision Ag Construction, LLC, was formed by
Nordhues and Golick. Filing 40 at 1; filing 40-1 at 1.
and Golick each resigned from PMI Nebraska on May 29, 2018.
Filing 18-2 at 3; filing 40 at 1; filing 40-1 at 1. PMI
Nebraska's case rests on what they were allegedly doing
before then. PMI Nebraska's evidence suggests Nordhues
and Golick were planning to form Precision Ag at least a
couple of weeks before they actually did so. See
filing 18-2 at 7, 9-21. And the defendants don't seem to
meaningfully dispute that. See filing 20 at 2
Nebraska's President, Colin McClure, also avers that
"Nordhues and Golick, while employed by PMI, had direct
access to and knowledge of client contact information, other
employees' salaries and wages, the process by which
prices are calculated and bids produced, and PMI-specific bid
format templates that were developed by PMI employees for PMI
use only." Filing 18-2 at 2. McClure contends that
before resigning, "Nordhues and Golick downloaded
protected information from PMI-owned computers including but
not limited to: protected drawings, plans, bid formats, rate
sheets and handbooks." Filing 18-2 at 3. As support for
that claim, McClure asserts that Nordhues and Golick
"deleted evidence of transferring such data, which was
revealed by computer forensic analysis, which [he] ordered
after [they] began engaging in competitive activity."
Filing 18-2 at 3. No such forensic analysis, however, is in
Nebraska also makes allegations regarding three projects
that, it says, are "illustrative." Filing 42 at 11.
First, PMI Nebraska claims that on May 15, Nordhues visited a
potential project for Aurora Cooperative Sedan Dust Control.
Filing 18-2 at 2. McClure said it was his understanding that
Aurora Coop would simply contact PMI Nebraska when the
materials were available to do the work. Filing 42-2 at 3.
But, when a PMI Nebraska employee called Aurora Coop to
follow up on July 5, Aurora Coop said that PMI Nebraska
hadn't been awarded the project. Filing 18-2 at 2.
Instead, Precision Ag was awarded the project, which McClure
estimates would have been worth $3, 500-4, 500 to PMI
Nebraska. Filing 18-2 at 2. Nordhues, however, said
that to his knowledge, PMI Nebraska never bid for the
project-instead, he avers that Aurora Coop contacted him in
early July 2018 about the job, which Precision Ag performed.
Filing 40 at 1-2.
second potential project was for Scoular Grain, with whom
McClure, Nordhues, and Golick allegedly met while they all
worked for PMI Nebraska. Filing 18-2 at 2. And, McClure says,
he and Nordhues visited a similar site to prepare a bid for
the Scoular project. Filing 18-2 at 2. Golick made a drawing
of measurements taken at the site. Filing 18-2 at 3. But
according to McClure, before leaving PMI Nebraska, Nordhues
set up a May 29 meeting with Scoular that wasn't for PMI
Nebraska. Filing 18-2. Nordhues avers, however, that while
Precision Ag bid for the Scoular project, that bid wasn't
selected, and Precision Ag is no longer a bidder. Filing 40
final potential project was in Lexington, Nebraska for
Gavilon Grain: apparently, a representative of PMI Iowa (by
all appearances a different company) who visited the site on
August 8, 2018 noticed that Nordhues and Golick had already
visited. Filing 18-2. McClure says he had mentioned the
possibility of a Gavilon project in Lexington to Nordhues
sometime in early 2018. Filing 42-2 at 4. McClure avers,
conclusorily, that "[o]n information and belief,
Defendant Nordhues utilized the information obtained during
his employment with PMI to unfairly outbid or otherwise
compete with PMI." Filing 18-2 at 5. The basis for that
"information and belief" isn't explained, and
Nordhues and Golick each aver that during their employment
with PMI Nebraska, they were never informed about
Gavilon's Lexington project: instead, a representative of
Gavilon had contacted Nordhues in late July and asked for a
quote. Filing 40 at 2; filing 40-1 at 2. And, they say, PMI
Nebraska itself didn't actually bid on the Gavilon
project. Filing 40 at 3; filing 40-1 at 2.
generally, Nordhues and Golick say that during their
employment with PMI Nebraska, they weren't aware of any
customer list. Filing 40 at 3; filing 40-1 at 2.
And, they say, Precision Ag isn't using and wouldn't
use any bid materials, confidential information, or trade
secrets learned while working at PMI Nebraska. Filing 40 at
4; filing 40-1 at 3. But McClure insists that PMI Nebraska
has a "client contact and vendor list" he knows
"was downloaded and removed by Defendants Nordhues and
Golick based on forensic analysis of the devices Defendants
used that [he] reviewed to determine what all documents,
lists, and drawings that they took." Filing 42-2 at 2.
Nebraska is alleging 6 claims for relief: (1)
"Misappropriation of Confidential Information"; (2)
breach of fiduciary duty by Nordhues; (3) breach of duty of
loyalty by Golick; (4) civil conspiracy; (5) conversion; and
(6) violation of the federal Computer Fraud and Abuse Act
(CFAA), 18 U.S.C. § 1030. Filing 1-1 at 4-8. In
this motion, PMI Nebraska seeks a preliminary injunction
barring the defendants from "any attempt . . . to bid on
or engage in any project first learned of, measured, or
investigated while employed with [PMI Nebraska]" or
"using, or attempting to use, or conspiring with one
another or other parties to use [PMI Nebraska]'s
confidential information to gain unfair and unlawful
commercial advantage." Filing 18 at 3.
deciding whether to issue a preliminary injunction, the Court
weighs the four Dataphase factors: (1) the threat of
irreparable harm to the movant; (2) the state of the balance
between this harm and the injury that granting the injunction
will inflict on other parties; (3) the probability that the
movant will succeed on the merits; and (4) the public
interest. Johnson v. Minneapolis Park & Recreation
Bd., 729 F.3d 1094, 1098 (8th Cir. 2013) (citing
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 114 (8th Cir. 1981) (en banc)). A preliminary injunction
is an extraordinary remedy, and the movant bears the burden
of establishing its propriety. Roudachevski v. All-Am.
Care Centers, Inc., 648 F.3d 701, 705 (8th Cir.
2011); see also Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008).
the Court would discuss each of the Dataphase
factors separately. In this case, however, it will be clearer
to discuss irreparable harm and the likelihood of success on
the merits of each of PMI Nebraska's claims,
claim-by-claim, because there's a mismatch: while PMI
Nebraska may have a likelihood of succeeding on some of its
claims, none of those claims present a threat of future
irreparable harm, and conversely, PMI Nebraska has not shown
a likelihood of succeeding on any of the claims for which it
alleges ongoing damages.
Nebraska begins by touting its civil conspiracy claim. Filing
19 at 5. That's an interesting choice to lead off with,
though, because a civil conspiracy claim is entirely
derivative: a civil conspiracy is a combination of two or
more persons to accomplish by concerted action an unlawful or
oppressive object, or a lawful object by unlawful or
oppressive means. Salem Grain Co., Inc. v. Consol. Grain
& Barge Co.,900 N.W.2d 909, 923 (Neb. 2017). So, a
"conspiracy" is not a separate and independent tort
in itself, but, rather, is dependent upon the existence of an
underlying tort. Id. at 924. In other words, a
"civil conspiracy" is just a method for imposing
joint and several liability on everyone who committed
wrongful acts in furtherance of the conspiracy. Id.
And that means ...