Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PMI Nebraska, LLC v. Nordhues

United States District Court, D. Nebraska

August 6, 2019

PMI NEBRASKA, LLC, Plaintiff and counterclaim defendant,
v.
DAVID NORDHUES, et al., Defendants and counterclaimants. and COLIN MCCLURE, Counterclaim defendant,

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         This 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.

         BACKGROUND

         The 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.[1] 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.

         Nordhues 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 ¶11.

         PMI 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 the record.

         PMI 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.

         The 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 at 2.

         The 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.[2]

         More 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.

         DISCUSSION

         PMI 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.

         When 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).

         Ordinarily, 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.

         Civil Conspiracy

         PMI 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.