United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Defendant's Rule
12(b)(6) Motion to Dismiss [#54] (the
“Motion”). Plaintiff filed a Response [#55] in
opposition to the Motion to Dismiss, and Defendant filed a
Reply [#56]. The Court has reviewed the Motion, the Response,
the Reply, the entire case file, and the applicable law, and
is sufficiently advised in the premises. For the reasons set
forth below, the Motion [#54] is
is a Delaware corporation that manufactures power
transmission belts and fluid power products that are used in
diverse industrial and automotive applications. Am.
Compl. [#49] ¶ 8. Defendant is a New Jersey
corporation that distributes and sells automotive and other
industrial products. Id. ¶ 9. The parties are
direct competitors. Id.
has created an electronic database of confidential business
information, which Plaintiff describes as the “backbone
of [its] sales.” Id. ¶¶ 10, 13. The
database includes information about products that Plaintiff
plans to offer before the information is made public, as well
as valuable market research. Id. ¶ 13. The
database also stores Vehicles in Operation
(“VIO”) data, which is non-public, proprietary
data for which Plaintiff pays an annual premium to access
from another source. Id. ¶ 12. Plaintiff's
database is stored in a password-protected file on a
password-protected server. Id. ¶¶ 10-11.
Certain employees are given access to the database after they
have signed confidentiality agreements, and unauthorized or
anonymous access is not permitted. Id. ¶ 11.
Select customers are permitted to access only certain classes
of information in the database. Id. Plaintiff pays
researchers a combined salary of over $50, 000 per month to
keep the information updated. Id. ¶ 13.
Bale (“Bale”) was Plaintiff's employee for 25
years. Id. ¶ 15. While employed by Plaintiff,
Ms. Bale developed software and was involved with storage of
the automotive parts list in the database. Id. She
was assigned a personal username and password to access the
database. Id. On August 25, 2009, Plaintiff
terminated Ms. Bale's employment, at which time her
username and password were deactivated and she signed an
“Employee Termination Statement, ” which stated
her agreement to turn over all confidential and trade secret
information to Plaintiff and agreed not to share that
information with anyone. Id. ¶16.
Bale began working for the Defendant in February 2010.
Id. ¶17. Plaintiff sent Ms. Bale a letter on
February 15, 2010, reminding her to keep Plaintiff's
information confidential. Id. Plaintiff copied
Defendant on the letter. Id. Two years later, on
February 8, 2012, Plaintiff became aware that Ms. Bale had
unlawfully accessed Plaintiff's database. Id.
¶18. Ms. Bale's former supervisor, David Haun
(“Haun”), received an e-mail from Ms. Bale that
attached VIO data and had the subject line “Present,
” with text that read “Check this out . . .
[.]” Id. Mr. Haun suspected that the e-mail
was intended for David Hirschhorn (“Hirschhorn”),
Defendant's Director of Brand Management who was Ms.
Bale's supervisor at the time, and that Plaintiff had
unlawfully accessed Plaintiff's database and attempted to
send the information to Mr. Hirschhorn. Id.
¶¶ 19, 20. Mr. Haun confirmed that the attachment
to the e-mail contained information that matched VIO data,
and on reviewing the server logs, discovered that the same IP
address in the header of Ms. Bale's e-mail had been used
on several previous occasions to access Plaintiff's
server. Id. ¶ 20. Plaintiff thereafter notified
the Federal Bureau of Investigations (“FBI”),
which commenced an investigation. Id. ¶ 21.
March 16, 2012, approximately one month after Plaintiff
discovered Ms. Bale's unlawful database access, Plaintiff
sent a letter to Defendant's President, informing him of
the e-mail that Plaintiff had received from Ms. Bale and
asking whether Defendant possessed any software or other
information that Ms. Bale had downloaded. Id. ¶
52. On April 29, 2012, Plaintiff received a response letter
stating that Defendant was investigating the matter.
Id. ¶ 53. On June 6, 2012, Defendant followed
up and informed Plaintiff that (1) the investigation was
complete and Defendant had confirmed that no one affiliated
with Defendant had downloaded and/or used the confidential
information referenced in Plaintiff's letter, (2)
Defendant did not have any record of the confidential
information in either electronic or hard copy form, and (3)
Ms. Bale had represented to Defendant that she had not used
or disclosed any of the confidential information referenced
in the March 16, 2012 letter. Lastly, Defendant informed
Plaintiff that Ms. Bale was no longer employed by Defendant.
later released a new product line of hoses that consisted
mostly of products that Plaintiff did not offer. Id.
¶ 54. Plaintiff became suspicious that Defendant had in
fact used the information gleaned by Ms. Bale, because
“it would have taken a substantial amount of time and
money to create such a product line without access to
[Plaintiff's] trade secrets.” Id. On
January 10, 2013, Plaintiff's counsel wrote to
Defendant's counsel informing them of Plaintiff's
suspicions and requesting that Defendant undertake a new
investigation. Id. ¶ 55. On January 24, 2013,
Defendant responded that it had confirmed that none of
Plaintiff's data referenced in the letters had been used
in the development of Defendant's hoses or any other
product line. Id. ¶ 56.
the FBI and the United States Attorneys' Office completed
their investigation in the spring of 2016, the United States
Attorneys' Office provided Plaintiff with a draft
statement of facts, where it was allegedly revealed that
Defendant was involved in the unlawful accessing and
downloading of Plaintiff's trade secrets. Id.
¶ 58. On May 11, 2016, Ms. Bale pled guilty to
unauthorized access to a protected computer, in violation of
18 U.S.C. §§ 1030(a)(2)(C) and 1030(c)(2)(B).
See Id. ¶ 1; see also United States v.
Laura Bale, No. 16-cr-00112-WJM.
filed the Complaint [#1] initiating this action on May 17,
2016. The Court granted Plaintiff's request for leave to
amend, and on April 10, 2017, Plaintiff filed the Amended
Complaint [#49]. Plaintiff raises four claims: (1)
misappropriation of trade secrets under the Colorado Uniform
Trade Secrets Act (“CUTSA”), (2) a Colorado tort
claim for misappropriation of business value, (3) a Colorado
tort claim for interference with a contract, and (4) a
federal claim under the Computer Fraud and Abuse Act. See
generally Am. Compl. [#49]. Plaintiff seeks a
preliminary and permanent injunction prohibiting Defendant
from using any of Plaintiff's trade secret information
and mandating that Defendant return any such information in
its possession. Plaintiff also demands compensatory damages,
punitive damages, reasonable attorneys' fees and costs,
and pre-and post-judgment interest on any award of damages.
Id. at 25.
filed the Motion [#54] on April 24, 2017. Defendant argues
that all four of Plaintiff's claims fail because they are
each barred by the applicable statutes of limitations, and
therefore must be dismissed pursuant to Fed.R.Civ.P.
12(b)(6). Motion [#54] at 11-18. In the alternative,
Defendant argues that Plaintiff's misappropriation of
business values and tortious interference with contract
claims should be dismissed because they are preempted by the
CUTSA claim, as all three claims arise out of the same facts.
Id. at 18-19.