United States District Court, D. Kansas
MEMORANDUM AND ORDER 
D. Crabtree, United States District Judge
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.
Factual and Procedural Background
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)).
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.
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.
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.
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.”
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.
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.
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.
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
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.
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 ...