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Nueterra Capital Advisors, LLC v. Leiker

United States District Court, D. Kansas

March 14, 2018

NUETERRA CAPITAL ADVISORS, LLC, et al., Plaintiffs,
v.
AMY LEIKER, et al., Defendants. AMY LEIKER, Plaintiff,
v.
NUETERRA CAPITAL ADVISORS, LLC, et al., Defendants.

          MEMORANDUM AND ORDER [1]

          Daniel D. Crabtree, United States District Judge

         Plaintiffs Nueterra Capital Advisors, LLC, Nueterra Holdings Management, LLC, and Nueterra Healthcare Management, LLC bring this lawsuit against defendants Amy Leiker and Triple Aim Creative, LLC, alleging several claims including ones asserting that: defendants have breached confidentiality and loyalty obligations; misappropriated trade secrets; and engaged in unfair competition. Defendants have filed a Motion to Dismiss Complaint or, in the Alternative, Motion for a More Definite Statement. Doc. 10. For reasons explained below, the court grants defendants' motion in part and denies it in part.

         I. Factual and Procedural Background

         The following facts are taken from plaintiffs' Complaint. Doc. 1. The court accepts them as true and views them in the light most favorable to plaintiffs. Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citing Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).

         Plaintiff Nueterra Capital Advisors, LLC (“Nueterra Capital”) is a Kansas limited liability company, plaintiff Nueterra Holdings Management, LLC (“Nueterra Holdings”) is a Delaware limited liability company, and plaintiff Nueterra Healthcare Management, LLC (“Nueterra Healthcare”) is a Delaware limited liability company. All three plaintiffs have their principal place of business in Leawood, Kansas. Plaintiffs' Complaint refers to these three entities collectively as “Nueterra, ” a convention the court follows when reciting the facts below.

         Nueterra develops, owns, and manages various healthcare facilities, including ambulatory surgery centers and community hospitals, throughout the United States. Nueterra provides various services to the healthcare facilities it owns and manages, including marketing services.

         Defendant Amy Leiker served as the Vice President of Marketing and Public Affairs for Nueterra Capital from January 2014 through April 30, 2017, and for Nueterra Holdings from May 1, 2017 to June 7, 2017. In this position, Ms. Leiker was responsible for direction and oversight of the entire marketing department, including overseeing the creative and design teams, director of on-line marketing, event planners, and communications specialists. Ms. Leiker was well compensated for her work in this position. Ms. Leiker's position also afforded her constant access to proprietary and confidential information about Nueterra's marketing plans and methods, clients, and business practices.

         When Ms. Leiker began her employment, she signed the “Nueterra HIPAA and Confidentiality Agreement” on January 6, 2014. Doc. 3-1. The same day, she also signed the “Confidentiality Agreement.” Doc. 3-2. Under the Nueterra HIPAA and Confidentiality Agreement, Ms. Leiker agreed that she had “no right or ownership interest” in any “Confidential Information” she might receive and that she would “appropriately safeguard Confidential Information so as to prevent any inappropriate use or disclosure.” Doc. 3-1 at 2-3. Also, Ms. Leiker agreed that “Confidential Information” included “Business Operations Information, ” defined as “[i]nformation relating to Nueterra's business operations.” Id. at 1. Ms. Leiker also agreed that any “use or disclosure of Confidential Information for any reason other than the performance of [her] assigned job duties . . . constitute[s] misuse of Confidential Information.” Id. at 2. And she agreed that her “obligations under this Agreement will continue after termination of [her] relationship (employment or otherwise) with Nueterra.” Id.

         Under the Confidentiality Agreement, Ms. Leiker acknowledged that she would “have access to and learn of unique and valuable information” during her employment, “the disclosure of which would injure Nueterra.” Doc. 3-2 at 1. Ms. Leiker agreed not to use or disclose “Proprietary Information, ” including but not limited to “any information relating to marketing or the marketing methods or business plan of Nueterra, ” “information concerning services, . . . styles, . . . strategies, . . . customers, . . . advertising, promoting, . . . and sales, ” and “any other information determined to be confidential or proprietary by Nueterra, ” with the understanding that even “[i]nformation that is not novel or copyrighted may nonetheless be proprietary information.” Id. Ms. Leiker agreed that the parties could bring an enforcement action based on violations of the Confidentiality Agreement and the “prevailing party in such dispute shall be entitled to collect such party's fees and costs from the other party, including without limitation court costs and reasonable attorneys' fees.” Id. at 3.

         In late 2016, Ms. Leiker's marketing team developed business plans and intellectual property under the moniker “Triple Aim.” These plans included tradenames, logos, and marks. The individuals who created the tradenames, logos, and marks were employed by either Nueterra Capital or Nueterra Holdings. Ms. Leiker and another member of the marketing team also developed a written, six-page “Business Plan” entitled “Triple Aim Creative Targeted Healthcare Marketing.” Nueterra asserts that the Triple Aim tradename, logos, and marks and the Triple Aim Business Plan are Nueterra's confidential and proprietary business information and trade secrets.

         On January 17, 2017, while Nueterra still employed Ms. Leiker, she formed for herself a company she called Triple Aim Creative, LLC (“Triple Aim Creative”)-the other named defendant in this lawsuit. Ms. Leiker is the sole owner of Triple Aim Creative. Nueterra asserts that Ms. Leiker formed Triple Aim Creative intending to and for the purpose of competing against Nueterra. Nueterra also asserts that Ms. Leiker formed Triple Aim Creative for the purpose of making unauthorized and competitive use of the Triple Aim trade secrets, including the proprietary and confidential names, marks, and logos that the Nueterra marketing team had developed under her supervision.

         On June 7, 2017, Ms. Leiker's employment with Nueterra terminated. At termination, Ms. Leiker did not return to Nueterra the Nueterra-owned Microsoft Surface Pro tablet device that Nueterra had issued to her. Ms. Leiker did not have permission to take or use the device. When Nueterra asked her to return the device, she refused. Nueterra then sent Ms. Leiker a written demand for the device. But Ms. Leiker still refused to return it. Nueterra asserts that Ms. Leiker used the Nueterra-owned Microsoft Surface Pro tablet device (or the laptop she was using while employed at Nueterra to form and establish Triple Aim Creative) to develop and launch her competitive website and Linkedin page, and to make unauthorized use and disclosure of the Triple Aim trade secrets.

         On August 18, 2017, Nueterra's counsel sent a letter to Ms. Leiker's counsel. It again demanded that Ms. Leiker return the Nueterra-owned Microsoft Surface Pro tablet device. On August 21, 2017, Ms. Leiker returned the device to Nueterra's offices after she had attempted to wipe all data from the device.

         During her employment, Ms. Leiker had access to the identities and contact information for Nueterra-affiliated facilities and other Nueterra actual or potential customers, as well as the marketing needs of those facilities and customers. This information constitutes Nueterra's proprietary and confidential information. Nueterra asserts that Ms. Leiker has used this proprietary information, as well as Nueterra's intellectual property (i.e., the Triple Aim trade ...


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