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Freebird Communications, Inc. v. Roberts

United States District Court, D. Kansas

November 13, 2019

MATTHEW ROBERTS, et al., Defendants.



         Plaintiffs Freebird Communications, Inc. Profit Sharing Plan (“Plan”), Freebird Communications, Inc. (“Freebird”), and Michael Scarcello filed this lawsuit alleging misappropriation of trade secrets, breach of fiduciary duty, tortious interference, unjust enrichment, and related claims. Doc. 62. The crux of Plaintiffs' allegations is that Matthew Roberts-a former officer and director of Freebird and trustee of the Plan-misappropriated trade secrets and breached his fiduciary duties by luring employees away to a new business venture and interfering with Freebird's existing and prospective business relationships. Id. Defendants Boxer Media Group, LLC (DE), Boxer Media Group, LLC (AZ), [1] and Brian Roberts[2] move for summary judgment on all counts asserted against them. Doc. 63. For the following reasons, the Court finds that Defendants are entitled to summary judgment on Plaintiffs' claims against them and, accordingly, grants Defendants' motion.

         I. BACKGROUND[3]

         A. Compliance with Federal and Local Rules

         As an initial matter, and before reciting the uncontroverted facts, the Court addresses several overarching procedural and substantive deficiencies in Plaintiffs' response. First, Plaintiffs' response fails to controvert many of Defendants' asserted facts in the manner required by the applicable rules. As required by District of Kansas Rule 56.1, Defendants set forth a statement of uncontroverted facts, separately numbered and referring with particularity to the portions of the record upon which each statement relies. D. Kan. R. 56.1(a). All facts set forth in such a statement are deemed admitted for purposes of summary judgment “unless specifically controverted by the statement of the opposing party.” Id. And, in controverting the asserted facts, Rule 56.1 dictates that the opposing party “refer with particularity to those portions of the record upon which the opposing party relies.” Id. at 56.1(b)(1) (emphasis added).

         Here, although Plaintiffs' response purports to dispute, in whole or in part, many of Defendants' asserted facts, Plaintiffs often fail to controvert those facts with citations to the record. Many of Plaintiffs' attempts to controvert Defendants' facts simply state their reasons for disagreeing with those facts without citing any supporting evidence. But it is not the Court's responsibility to scour the record on Plaintiffs' behalf to seek evidence contradicting Defendants' asserted facts. See, e.g., Oakview Treatment Ctrs. of Kan., Inc. v. Garrett, 53 F.Supp.2d 1184, 1193 n.8 (D. Kan. 1999); Carter v. Spirit AeroSystems, Inc., 2019 WL 3732684, at *1 (D. Kan. 2019).

         The rules related to summary judgment are straightforward and clear, and they provide the only permissible means of disputing the moving party's facts. Plaintiffs chose not to employ those means. Given Plaintiffs' failure to adhere to the applicable summary judgment rules, where allegedly disputed facts are not directly controverted by evidence contained in the record, the Court considers those facts uncontroverted for purposes of summary judgment. But the Court will deem Defendants' facts controverted to the extent Plaintiffs' statements of additional fact fairly meet the substance of Defendants' statement of facts (and can be ascertained as such) and are supported by competent evidence.

         Finally, having addressed the procedural flaws, the Court addresses the overarching substantive deficiencies in Plaintiffs' response. District of Kansas Rule 7.6 requires that all briefs and memoranda filed with the Court include an argument “referring] to all statutes, rules, and authorities relied upon.” D. Kan. R. 7.6(a)(4). But, remarkably, in their response, Plaintiffs: (1) cite zero cases; (2) barely note, in a passing reference, one rule from the Federal Rules of Civil Procedure (Rule 56); and (3) offer no analysis of how that rule applies to the facts in this case. The Court will not spend its limited time and resources acting as Plaintiffs' attorney (or counsel's associate) to find law to support their underdeveloped claims.

         B. Freebird's Business

         Having addressed these preliminary issues, the Court turns to its recitation of the factual record. At its core, this case involves a business relationship gone sour. In July 2001, Matthew Roberts and Michael Scarcello formed Freebird Communications, Inc. (“Freebird”), which was in the business of providing satellite uplink services. Doc. 62 at 3 ¶¶ 4, 13. Satellite uplink involves taking audio and video from a remote location and using a variety of equipment to transmit that data via satellite to a customer. Doc. 64 at 3 ¶ 11. The customer then broadcasts the audio and video to the general public. Id. Freebird provided these services to a variety of customers at breaking news, sporting, and corporate events. Id. at 4 ¶ 12.

         Throughout his employment at Freebird, Matthew Roberts was primarily responsible for the company's business operations, serving as Freebird's president from the company's formation until his eventual departure. Doc. 62 at 3 ¶ 5; Doc. 64 at 3 ¶ 8. Michael Scarcello, meanwhile, was Freebird's vice president, and primarily focused on the “technical” side of the business, operating and maintaining the satellite uplink trucks. Doc. 64 at 2 ¶ 5; Doc. 67 at 17 ¶ 103. Both Matthew Roberts and Scarcello also served as directors of Freebird. Doc. 62 at 3 ¶¶ 5-6.

         In connection with the formation of Freebird, the Freebird Communications, Inc. Profit-Sharing Plan (“Plan”) was also created to own Freebird's stock. Id. at 3 ¶¶ 7-8. The Plan was funded with rollover contributions from the previous retirement plans owned by Scarcello and Matthew Roberts. Id. at 3 ¶ 12. Matthew Roberts and Scarcello were the initial trustees of the Plan. Id. at 3 ¶ 9.

         C. Formation of Boxer Media

         Although the parties disagree regarding the timing of the conversations, the parties agree that, at some point, Matthew Roberts and Scarcello began to discuss Scarcello's eventual retirement. Doc. 64 at 8 ¶ 32; Doc. 67 at 6 ¶ 32. And, again, though the parties disagree on the details, the parties' briefing and submissions make clear that, at some point, Matthew Roberts expressed an interest in buying out Scarcello's interest in Freebird, but those discussions were ultimately unsuccessful. Doc. 64 at 8 ¶¶ 33-34; Doc. 67 at 19 ¶ 109 (asserting that Matthew Roberts “tried” to purchase Scarcello's interest). In spring of 2016, Matthew Roberts began discussing forming a new satellite uplink business with his brother, Brian Roberts. Doc. 64 at 8 ¶ 35; Doc. 67 at 8 ¶ 35. Boxer Media was subsequently formed in April 2016. Doc. 64 at 9 ¶ 36. Brian Roberts and his wife own Boxer Media. Doc. 62 at 4 ¶ 18. Boxer Media provides the same services for its customers as Freebird. Doc. 64 at 4 ¶ 13.

         On June 10, 2016, Matthew Roberts notified Scarcello that he was resigning from Freebird. Doc. 64-10 at 2. His resignation was effective June 30, 2016. Doc. 64 at 11 ¶ 50. In the interim- i.e., after he had tendered notice of his resignation but before the resignation took effect-Matthew Roberts set up an email account for Boxer Media, which included email, document storage, and a new calendar for Boxer Media events. Id. at 10 ¶ 45. The day after Matthew Roberts's resignation became effective, on July 1, 2016 at 12:44 a.m., Brian Roberts offered him a position as “president and general manager” of Boxer Media. Doc. 67-4 at 2. Matthew Roberts accepted that offer. Id.

         Following Matthew Roberts's departure from Freebird, three other Freebird employees- Pam Watson, Mike Jones, and Scott Currie-also left the company to join Boxer Media. Doc. 62 at 4 ¶¶ 19-24. Likewise, some former customers of Freebird are now customers of Boxer Media. Doc. 64 at 4 ¶ 13. Freebird employees are at-will and have never been subject to any restrictive covenants, including non-compete and non-solicitation agreements. Id. at 7 ¶ 31.

         Matthew Roberts's positions as president and director of Freebird ended with his resignation on June 30, 2016. Doc. 62 at 3 ¶ 5. And his position as a trustee of the Plan was terminated on July 19, 2016. Doc. 64 at 16 ¶ 69. After Matthew Roberts's resignation, Scarcello assumed the duties of president, secretary, and treasurer of Freebird. Doc. 62 at 4 ¶ 14. The current trustees of the Plan are Scarcello and his son, Brian Scarcello. Id. at 4 ¶ 15.

         D. ...

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