United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, Chief District Judge.
Plaintiff Tank Connection, LLC filed this lawsuit alleging that its former employee, defendant John R. Haight, had taken sensitive information about the company with him after terminating his employment. Tank Connection named Haight's new employer-USA Tank Sales & Erection Company, Inc.-as a relief defendant, alleging that although the company has no interest in the outcome of the case, it "is appropriately designated a relief defendant because it has in its possession confidential information misappropriated by Haight and is necessary to afford proper relief to Tank Connection." The court now has before it USA Tank's Motion to Dismiss (Dkt. 57), which seeks dismissal of USA Tank from this case as a relief defendant.
Tank Connection is a Kansas limited liability company in the business of designing, manufacturing, installing and servicing above-ground tanks for the storage of dry and liquid products. Its principal office is located in Labette County, Kansas. Defendant Haight is a Neosho County, Kansas resident. He was employed by Tank Connection from July 28, 2008, to September 12, 2013. He resigned unexpectedly from his position as Tank Connection's international sales manager and began work for USA Tank the following day. USA Tank is a direct competitor of Tank Connection in the above-ground tank business.
While working at Tank Connection, Haight had access to confidential information about pricing, costs, customer lists, engineering and design plans, lists of pending jobs ("hot lists"), corporate strategies, and other unique methods Tank Connection used to do business. As part of his employment with Tank Connection, Haight promised to keep this information confidential and not disclose it to third parties without prior written permission from Tank Connection. Haight signed a non-disclosure agreement on July 28, 2008, confirming his promise.
After announcing his resignation on September 12, 2013, Haight told Tank Connection management that he had returned all company property in his possession. However, Tank Connection alleges Haight took with him six or more computer flash drives that held confidential design and pricing programs. After receiving calls from Tank Connection, Haight returned three flash drives that he claimed to have discovered in his briefcase after leaving. Haight stated that he did not have any proprietary or confidential information in his possession.
Haight had used a company laptop computer while he was employed at Tank Connection. Tank Connection performed a preliminary forensic examination of the laptop's hard drive after Haight resigned. The examination indicated that Haight had copied confidential information from his laptop onto a flash drive that was not one of those returned. After receiving a letter from counsel for Tank Connection, Haight returned one more thumb drive. This new thumb drive did not contain the confidential material that had been copied from Haight's work laptop.
Tank Connection performed a second forensic examination of the laptop hard drive. Tank alleges that this examination showed that on the two days before he resigned, Haight had remotely accessed the company computer server, searched the confidential files of two company officers and viewed highly sensitive pricing, design, personnel, cost, hot lists and other confidential information. The examination indicated that Haight had copied the images displayed on the monitor of his computer when he accessed these files.
Tank Connection hired BKD, LLP, to perform a third forensic examination. BKD's examination revealed that two other flash drives had been attached to the laptop's ports in the final days before Haight's resignation. These flash drives are not any of the four Haight returned to Tank Connection.
Tank Connection filed its complaint on October 18, 2013, alleging Haight breached his employment contract and duty of loyalty and violated the Kansas Uniform Trade Secrets Act and the Computer Fraud and Abuse Act. Tank Connection believes that Haight copied its confidential information to provide himself with an advantage in his employment with USA Tank. Tank Connection claims it is highly likely that the information Haight copied has been incorporated into USA Tank's computer system or is otherwise in its possession for use by Haight. On November 1, 2013, the court granted Tank Connection's request for a Temporary Restraining Order, restricting USA Tank from destroying or using this confidential information and requiring USA Tank to immediately forensically image its hard drives and deliver the results to the Receiver. See Dkt. 9.
Tank Connection does not allege any wrongdoing by USA Tank. Tank Connection stated in its complaint that it does not know whether USA Tank is aware of the use of this confidential information. Regardless, Tank Connection designated USA Tank as a relief defendant, arguing it is necessary to afford proper relief because USA Tank has this information in its possession. USA Tank seeks to be dismissed as a relief defendant, arguing that Tank Connection fails to state a claim against it.
II. Legal Standard - Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must give the defendant adequate notice of what the plaintiff's claim is and the grounds of that claim. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
"In reviewing a motion to dismiss, this court must look for plausibility in the complaint.... Under this standard, a complaint must include enough facts to state a claim to relief that is plausible on its face.'" Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223-24 (10th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility 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) (clarifying and affirming Twombly 's probability standard). Allegations that raise the specter of mere speculation are not enough. Corder, 566 F.3d at 1223-24. The court must assume that all allegations in the complaint are true. Twombly, 550 U.S. at 589. "The issue in resolving a motion such as this is not whether [the] ...