Pipeline Productions, Inc. v. S&A Pizza, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

PIPELINE PRODUCTIONS, INC., )

MICHAEL EDMONDSON, BRETT )

MOSIMAN, PLT, LLC, MIDWEST )

PRODUCTION SERVICES, LLC, )

) Case No. 4:20-00130-CV-RK

Plaintiffs, )

)

v. )

)

S&A PIZZA, INC., JEFFREY "STRETCH" )

RUMANER, CROSSROADS LIVE, LLC, )

MAMMOTH, INC., JOSH FORTIER, )

JOSH HUNT, )

)

Defendants. )

ORDER

Before the Court are Defendants Mammoth, Inc. (“Mammoth”), Jeff Fortier (“Fortier”),

and Josh Hunt’s (“Hunt”) (collectively the “Mammoth Defendants”) motions to dismiss for failure

to state a claim and for lack of standing. (Docs. 36, 38.) The motions are fully briefed. (Docs.

37, 39, 57, 68, 69.) After careful consideration, and for the reasons set forth below, the motions

are GRANTED in part and DENIED in part. Specifically, the Court will dismiss Count IX

(Stored Communications Act), Count X (Computer Fraud and Abuse Act), and Count XIV

(injunctive relief), but deny the motion as to all other claims.

Background1

This is a business dispute involving several parties. The Plaintiffs are two individuals,

Brett Mosiman (“Mosiman”) and Michael Edmonson (“Edmonson”) along with several other

entities owned by Mosiman, most notably Pipeline Productions, Inc. (“Pipeline”). Pipeline and

Edmondson are both minority members in Defendant Crossroads Live, LLC (the “Company”)

(known to the public as “CrossroadsKC @ Grinders”), an entity engaged in producing and

operating musical events at a specific venue located in Kansas City, Missouri.

1 The background facts are taken from Plaintiffs’ Complaint (Doc. 1) and are accepted as true for

the present motion.

In addition to the Company, the Defendants include S&A Pizza, Inc. (“S&A”), a 51%

owner of the Company and an entity operated by Defendant Jeffrey “Stretch” Rumaner

(“Rumaner”). The Mammoth Defendants include Mammoth, Inc., which is a concert and live

event producer based in Lawrence Kansas, and owned by Fortier and Hunt. Mammoth is a

competitor of Pipeline.

In 2007, Pipeline, Edmondson, and S&A started the Company and on April 21, 2008, they

entered into the Operating Agreement for the Company. Mosiman on behalf of Pipeline, managed

the Company’s operations, including booking, marketing, production, security, bar operations,

staffing, payroll, and sponsorships. Pipeline and Edmondson allegedly invested and loaned the

Company more than $900,000. S&A and Rumaner owned the property on which the Company

operated (the “property”), and they leased the property to the Company for $6,500 a month.

The Company enjoyed success for 13 years, primarily through CrossroadsKC @ Grinders’

events. CrossroadsKC @ Grinders hosted approximately 40-50 shows per year. Then, in

December 2019, S&A terminated the lease with the Company, and began working with Mammoth

Defendants to produce musical events on the Property. Attempts to dissolve and wind down the

Company were unsuccessful and this litigation has now ensued.

Plaintiffs bring this action alleging counts for breach of contract, breach of fiduciary duty,

unjust enrichment, tortious interference with contract, violation of various computer tampering

statutes, and trademark violations under the Lanham Act. The Mammoth Defendants have moved

to dismiss the counts raised against them (Counts VII-XIV) for lack of standing under Rule

12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim under Rule 12(b)(6).

Their motions are ready for decision.

Legal Standard

Under Rule 12(b)(1), a party may move to dismiss “for lack of subject-matter jurisdiction.”

Standing is a jurisdictional question. See Schumacher v. SC Data Ctr., Inc., 912 F.3d 1104, 1105

(8th Cir. 2019). Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases”

and “Controversies.” U.S. Const. Art. III, § 2. “One element of the case-or-controversy

requirement is that plaintiffs must establish that they have standing to sue.” Fisher v. Enterprise

Holdings, Inc., 2016 WL 4665899, *2 (E.D. Mo. Sept. 9, 2016) (quoting Clapper v. Amnesty Int’l

U.S.A., 133 S. Ct. 1138, 1146 (2013) (citation omitted)). “The ‘irreducible constitutional

minimum’ of standing consists of three elements: ‘The plaintiff must have (1) suffered an injury

in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely

to be redressed by a favorable judicial decision.’” Id. (citing Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547 (2016) (citation omitted)). “Where a case is at the pleading stage, the plaintiff must

‘clearly . . . allege facts demonstrating each element.’” Id. (citing Spokeo, 136 S.Ct. at 1547).

“The elements of standing ‘cannot be inferred argumentatively from averments in the pleadings,

but rather must affirmatively appear in the record.’” Id. (quoting Owner—Operator Indep. Drivers

Assoc., Inc. v. United States Dep’t of Trans., 831 F.3d 961, 965 (8th Cir. Aug. 2, 2016)).

To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “A claim is facially plausible where the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Wilson v. Arkansas Dept. of Human Serv., 850 F.3d 368, 371 (8th Cir. 2017) (internal

quotation marks and citation omitted). While a complaint does not need to include detailed factual

allegations, the complaint must allege more than a sheer possibility that a defendant acted

unlawfully to survive a motion to dismiss. Id. (citation omitted). When considering a motion to

dismiss for failure to state a claim, the well-pled allegations in the Complaint must be accepted as

true and construed in the light most favorable to the nonmoving party. Osahar v. U.S. Postal

Service, 263 Fed. Appx. 753, 864 (8th Cir. 2008).

Federal Courts sitting in diversity apply state substantive law. See generally Morgantown

Machine & Hydraulics of Ohio, Inc. v. American Piping Products, Inc., 887 F.3d 413, 415 (8th

Cir. 2018) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The parties cite Missouri

law and no party argues another state’s substantive law should apply. Therefore, the Court looks

to Missouri substantive law to resolve the issues.

Discussion

I. Tortious Interference (Count VII)

To prevail on their claim of tortious interference, Plaintiffs must allege and show

Mammoth Defendants (1) interfered with a contract, (2) of which they had knowledge, and (3)

such interference was without justification. See, e.g., Alternate Fuels, Inc. v. Cabanas, 435 F.3d

855, 858 (8th Cir. 2006) (applying Missouri Law). “Under Missouri law, no liability arises for

interfering with a contract or business expectancy if the action complained of was an act that the

defendant had a definite legal right to do without any qualification.” Healthcare Servs. of the

Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 614 (Mo. banc. 2006). Likewise, “competitive conduct

is not tortious simply because it happens to interfere with another party’s contracts or

expectancies.” Am. Red Cross v. Cmty. Blood Ctr. of the Ozarks, 257 F.3d 859, 862 (8th Cir.

2001) (applying Missouri law).

A. The Operating Agreement

Mammoth Defendants first argue the operating agreement permitted the parties to run

competing businesses, and therefore Mammoth Defendants were justified in their actions.

Plaintiffs, on the other hand, contend that while the operating agreement permitted competition

among themselves, it did not permit direct competition with the Company or allow the production

of musical events on the Property with a third party. The Court will not delve into a detailed

interpretation or application of the operating agreement at this time.2 Further, whether the

Mammoth Defendants’ actions were justified under the operating agreement is a factual question

that cannot be resolved on a motion to dismiss in this case. Therefore, Mammoth Defendants’ first

argument does not warrant dismissal at this time.

B. Knowledge and Interference

Second, Mammoth Defendants argue Plaintiffs pleaded no facts to suggest the Mammoth

Defendants knew of the contract (the operating agreement) or any facts as to how they interfered

with the contract. These arguments fail. Plaintiffs’ Complaint clearly alleges the Mammoth

Defendants knew of the operating agreement and worked with Rumaner to interfere with it. For

instance, paragraph seventy-seven of the Complaint alleges “employees, officers or directors of

Mammoth, including Fortier and/or Hunt, directly conspired with, actively worked with and

encouraged S&A and Rumaner to divert the Company’s and Pipeline’s business, artists, clients,

prospects, confidential and proprietary information, data and trade secrets away from them and to

their new venture.” The Complaint also alleges Rumaner sought legal counsel in 2019 about

breaching the operating agreement, and then began to divert business from the Company to the

new venture with Mammoth, Fortier, and Hunt. (Doc. 1, ¶¶ 70, 75.) Drawing all reasonable

2 While the Court recognizes that the meaning of a contract’s legal terms is a legal question, to be

resolved by the Court, at this stage of the case, the parties have not fully briefed or argued how the operating

agreement should be interpreted. For purposes of this motion, therefore, the Court accepts the factual

matters alleged in the Complaint as true as to the operating agreement.

inferences from these alleged facts, the Complaint sufficiently alleges the Mammoth Defendants

knew of the contract and intentionally interfered with it.

C. The Absence of Justification

Finally, Mammoth Defendants argue Plaintiffs have not sufficiently pleaded an absence of

justification. Plaintiffs allege that Mammoth Defendants specifically timed their actions to

“destroy the ability of Pipeline, Mosiman, and Edmondson to recover and/or open a new music

venue.” (Doc. 1, ¶ 112.) “If the alleged wrongdoer’s conduct is directed solely to the satisfaction

of spite or ill will and not in the advancement of his competitive interests over his competitor, the

person harmed, he is not exercising and is not entitled to invoke his privileges as a competitor.”

Downey v. United Weatherproofing, 253 S.W.2d 976, 982 (Mo. 1953). Because Plaintiffs have

pleaded that Mammoth Defendants acted with ill will, Plaintiffs have sufficiently pleaded absence

of justification. Therefore, the Court will deny Mammoth Defendants’ motion to dismiss Count

VII.

II. Violation of the Stored Communications Act (Count IX)

Mammoth Defendants argue Count IX should be dismissed for lack of standing and for

failure to state a claim. While the factual allegations in the Complaint, accepted as true, establish

standing for Count IX, the Court finds Plaintiffs failed to state a claim.

To establish a claim under the Stored Communications Act (“SCA”), Plaintiffs must show

someone “(1) intentionally accesses without authorization a facility through which an electronic

communication service is provided; or (2) intentionally exceeds an authorization to access that

facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic

communication while it is in electronic storage.” Anzaldua v. Ne. Ambulance & Fire Prot. Dist.,

793 F.3d 822, 838 (8th Cir. 2015) (quoting 18 U.S.C. § 2701). Here, Plaintiffs allege Defendants

intentionally gained unauthorized access to websites and social media accounts and took

confidential, proprietary, and other communications. (Doc. 1, ¶¶ 168-69.)

A. Provider of Electronic Communication Services

Mammoth Defendants first argue Plaintiffs have failed to plead they intentionally accessed

a facility through which “electronic communication service” is provided. The SCA defines

electronic communication services as “any service which provides the users thereof the ability to

send or receive wire or electronic communications.” See 18 U.S.C. § 2711(1) (SCA adopting

definitions in 18 U.S.C. § 2510); 18 U.S.C. § 2510(15). “In construing this definition, courts have

distinguished those entities that sell access to the internet from those that sell goods or services on

the internet or otherwise make use of internet services to conduct their day to day business

activities.” Priority Payment Sys., LLC v. Intrend Software Sols., No. 1:15-CV-04140-AT, 2016

WL 8809877, at *6 (N.D. Ga. Nov. 28, 2016) (citing cases). Plaintiffs have failed to sufficiently

plead they are a provider of electronic communications services. As such, Plaintiffs failed to state

a claim under the SCA. Id.; Walsh Bishop Assocs., Inc. v. O'Brien, No. CIV. 11-2673 DSD/AJB,

2012 WL 669069, at *5 (D. Minn. Feb. 28, 2012) (“As an initial matter, the court notes that this

claim fails because Walsh Bishop is not a provider of ‘electronic communication service’ as

defined by the [SCA].”); Combier v. Portelos, No. 17-CV-2239 (MKB), 2018 WL 3302182, at

*12 (E.D.N.Y. July 5, 2018), report and recommendation adopted, No. 17CV2239MKBRLM,

2018 WL 4678577 (E.D.N.Y. Sept. 29, 2018), aff'd, 788 F. App’x 774 (2d Cir. 2019) (“Generally,

the definition of “electronic communication service” is limited to Internet service providers . . .

that is, telecommunication companies that carry Internet traffic and electronic bulletin boards.”).

B. Obtain, Alter, or Prevent Unauthorized Access to a Wire or Electronic

Communication

Second, Mammoth Defendants argue Plaintiffs do not allege that any Defendant accessed

anything to “obtain[], alter[], or prevent[] authorized access to a wire or electronic communication

while it is in electronic storage.” 18 U.S.C. § 2701. Plaintiffs conclusorily assert that Mammoth

Defendants “obtained, altered or prevented authorized access . . . to social networks and

websites.”3 (Doc. 1, ¶ 172.) Even assuming the allegations were factually sufficient, social

networks and websites are not electronic communications in electronic storage. Electronic storage

is defined as, “(A) any temporary, intermediate storage of a wire or electronic communication

incidental to the electronic transmission thereof; and (B) any storage of such communication by

an electronic communication service for purposes of backup protection of such communication.”

18 U.S.C. § 2510(17); see also In re Doubleclick Inc. Privacy Litig., 154 F. Supp. 2d 497, 512

(S.D.N.Y. 2001) (“[The SCA] only protects electronic communications stored ‘for a limited time’

in the ‘middle’ of a transmission, i.e. when an electronic communication service temporarily stores

3 It should be noted that Plaintiffs also argue 18 U.S.C. § 2701(a) is disjunctive and the obtain, alter,

or prevent authorized access requirement only applies to 18 U.S.C. § 2701(a)(2). While the resolution of

this issue is not dispositive here, the Court believes the obtain, alter, or prevent authorized access language

applies both to (1) and (2) of § 2701 (a).

a communication while waiting to deliver it.”). Therefore, Plaintiffs fail to state a claim under the

SCA, and the Court will grant Mammoth Defendants’ motion to dismiss Count IX.

III. Computer Fraud and Abuse Act (Count X)

Pursuant to 18 U.S.C. § 1030(a)(4), a violation of the Computer Fraud and Abuse Act

(“CFAA”) occurs when someone

knowingly and with intent to defraud, accesses a protected computer without

authorization, or exceeds authorized access, and by means of such conduct furthers

the intended fraud and obtains anything of value, unless the object of the fraud and

the thing obtained consists only of the use of the computer and the value of such

use is not more than $5,000 in any 1-year period.

Plaintiffs’ declare that all Defendants except Crossroads Live violated the Computer Fraud and

Abuse Act (“CFAA”), 18 U.S.C. § 1030, by accessing one or more of Pipeline’s computers, either

without authorization or by exceeding authorization, and thereby misappropriated information

belonging to Pipeline.

Plaintiffs’ Complaint does nothing more than provide bare, conclusory allegations, which

amount to mere recitation of the elements outlined in § 1030(a)(4). Glick v. W. Power Sports, Inc.,

944 F.3d 714, 717 (8th Cir. 2019) (holding threadbare recitals of the elements of a cause of action

do not suffice to state a claim.); see also Curran v. Mark Zinnamosca & Assocs., 1:12-CV-750,

2014 WL 271634, at *6 (M.D. Pa. Jan. 23, 2014) (dismissing CFAA claim that was “nothing more

than” a “formulaic recitation of the elements” of unauthorized access or exceeding authorized

access). Plaintiffs fail to allege any meaningful facts in the Complaint to state a claim under Count

X.

Plaintiffs cite H & R Block E. Enters. v. J & M Sec., LLC to argue they sufficiently pleaded

loss. No. 05-1056-CV-W-DW, 2006 U.S. Dist. LEXIS 26690, at *11 (W.D. Mo. Apr. 24, 2006).

However, even assuming Plaintiffs sufficiently pleaded loss, they have not sufficiently pleaded the

other elements under 18 U.S.C. § 1030(a)(4). Therefore, the Court will grant Mammoth

Defendants’ motion to dismiss Count X.

IV. Violation of the Missouri Computer Tampering Act (Count XI)

Pursuant to Mo. Rev. Stat. Section 537.525, “the owner or lessee of the computer system,

computer network, computer program, computer service or data may bring a civil action against

any person who violates sections 569.095 to 569.099.” Under Mo. Rev. Stat. Section 569.095,

A person commits the offense of tampering with computer data if he or she

knowingly and without authorization or without reasonable grounds to believe that

he has such authorization:

(1) Modifies or destroys data or programs residing or existing internal to a

computer, computer system, or computer network; or

(2) Modifies or destroys data or programs or supporting documentation residing or

existing external to a computer, computer system, or computer network; or

(3) Discloses or takes data, programs, or supporting documentation, residing or

existing internal or external to a computer, computer system, or computer network;

or

(4) Discloses or takes a password, identifying code, personal identification number,

or other confidential information about a computer system or network that is

intended to or does control access to the computer system or network;

(5) Accesses a computer, a computer system, or a computer network, and

intentionally examines information about another person;

(6) Receives, retains, uses, or discloses any data he knows or believes was obtained

in violation of this subsection.

Here, Plaintiffs state a claim. Plaintiffs allege that the Mammoth Defendants accessed one or more

of Pipeline’s computers. (Doc. 1, ¶ 180.) Drawing reasonable inferences from this allegation,

Plaintiffs have alleged they owned a computer(s).4 Plaintiffs further allege the Mammoth

Defendants “disclosed, transmitted misappropriated data, documentation, trade secrets, and

proprietary and confidential information wrongfully obtained.” While this may be a conclusory

allegation, normally ignored by the Court, Plaintiffs also plead with more particularity that

Mammoth Defendants were trying to steal assets and brand identities from Pipeline. The factual

allegations are notably thin, but nonetheless sufficient to survive a motion to dismiss.

As to Plaintiffs’ claims regarding the social media accounts, and other property, of the

Company, Mammoth Defendants also argue Plaintiffs have no standing to pursue those claims,

namely because Plaintiffs do not have an injury in fact. Mammoth Defendants argue no injury in

fact exists because the social media accounts, name, and other corporate assets were owned by the

4 Whether this amounts to a “computer system, computer network, computer program, computer

service or data,” thus satisfying the requirements of Mo. Res. Stat. § 537.525, may be a question answered

through discovery.

Company and not Plaintiffs. However, Plaintiffs plead they own the name, logo, corporate assets,

as well as the website and social media accounts of the Company.5 (Doc. 1.) Plaintiffs also plead

that Mammoth Defendants took confidential information, proprietary information, and other

communication in an electronic format from the Company and Pipeline. (Doc. 1, ¶ 169.)

Therefore, Plaintiffs have standing and have stated a claim under Count XI, and the Court will

deny Mammoth Defendants’ motions as to Count XI.

V. Lanham Act (False Designation) (Count XII)

To recover under the Lanham Act, a plaintiff must establish “(1) that it owns a distinctive

mark or name; and (2) that defendant’s use of a similar mark or name is likely to cause confusion

as to the source of the products sold by the defendant.” USA Visionary Concepts, LLC v. Mr Int’l,

LLC, 2009 U.S. Dist. LEXIS 140268 at *6 (W.D. Mo. Nov. 17, 2009); 15 U.S.C. § 1125(a)(1)(A)

(2020). “[T]he ultimate issue is whether defendant’s design so resembles plaintiff’s mark that it

is likely to cause confusion among consumers as to whether plaintiff has sponsored, endorsed or

is otherwise affiliated with the design.” USA Visionary Concepts, LLC, 2009 U.S. Dist. LEXIS

140268 at *6-8.

Here, Plaintiffs sufficiently state a claim. Plaintiffs allege they own the Company name

and trademarks. (Doc. 1, ¶¶ 198-99.) Mammoth Defendants argue Count XII should be dismissed

because the ownership of any name or mark belongs to the Company and not the Plaintiffs.

Plaintiffs specifically plead ownership of the names and marks. (See Doc. 1, ¶ 75.) While

Mammoth Defendants label these allegations as conclusory, ownership itself involves factual

questions. Further, Plaintiffs plead they not only own, but also control and created such names

and marks. Therefore, Plaintiffs’ ownership allegations are sufficiently pled, and, accepted as true

for the purposes of this motion, permit the claim to go forward. See Hamilton v. Palm, 621 F.3d

816, 819 (8th Cir. 2010) (“Common sense and judicial experience counsel that pleading

[employer/independent contractor status] does not require great detail or recitation of all

potentially relevant facts in order to put the defendant on notice of a plausible claim.”); Baker v.

Big Ox Energy, LLC, No. 8:18-CV-381, 2019 WL 1506706, at *4 (D. Neb. Apr. 5, 2019) (In

explaining the pleading standard under Iqbal, the court noted “it is not that the allegations in a

5 While the Court accepts these factual allegations as true for the purposes of the present motions,

Plaintiff will have to provide admissible evidence that they, rather than the Company, owned the various

intangible property at later stages in the litigation.

complaint contain conclusions, it is that the conclusions in the allegation are not supported by a

plausible factual base.”).

Next, Mammoth Defendants argue Plaintiffs failed to plead an injury that is concrete and

particularized. Plaintiffs specifically plead that Mammoth Defendants changed the name of their

new venture to “Grinders Crossroads,” coopting the name of the Company and creating the

likelihood of confusion. More than that though, Plaintiffs pleaded the new name was crafted in a

way to deceive customers and that such changes actually did deceive customers. (Doc. 1, ¶¶ 199-

200.) Such pleadings are sufficient to allege a concrete and particular injury.6 Therefore, Plaintiff

has stated a claim under Count XII, and the Court will deny Mammoth Defendants’ motion on

Count XII.

VI. Trade Secrets and Misappropriation Thereof (Count XIII)

A claim for misappropriation of trade secrets under the Missouri Uniform Trade Secrets

Act (“MUTSA”) has three elements: “(1) a trade secret exists, (2) the defendant misappropriated

the trade secret, and (3) the plaintiff is entitled to either damages or injunctive relief.” Central

Trust and Inv. Co. v. Signalpoint Asset Management, LLC, 422 S.W.3d 312, 320 (Mo. banc 2014).

Mammoth Defendants argue Plaintiffs have failed to sufficiently plead any of the above elements.

The Court will address each element in turn.

A. Identification of Trade Secret(s)

First, Mammoth Defendants argue Plaintiff failed to identify any trade secret. A “trade

secret” is information or data that: “(a) derives independent economic value, actual or potential,

from not being generally known to, and not being readily ascertainable by proper means by other

persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts

that are reasonably under the circumstances to maintain its secrecy.” Mo. Rev. Stat. Section

417.453. The following factors are relevant in the consideration of whether certain information is

a trade secret:

(1) the extent to which the information is known outside of his business; (2) the

extent to which it is known by employees and others involved in his business; (3)

6 It should also be noted that the name of the new venture by Defendants was one of the most

important issues raised in the motion for temporary restraining order. The Court ordered all parties to cease

using the name Crossroads, Crossroads KC, or Crossroads Live in conjunction with the venue, their

businesses, or the production of musical events until the final resolution of this case or further order by the

Court. The Court permitted Defendants to utilize the term Grinders in naming the venue or producing,

promoting, and hosting events at the venue. Within the motion and at the hearing, Plaintiffs presented

additional evidence of confusion among the public and consumers.

the extent of measures taken by him to guard the secrecy of the information; (4) the

value of the information to him and to his competitors; (5) the amount of effort or

money expended by him in developing the information; (6) the ease or difficulty

with which the information could be properly acquired or duplicated by others.

Healthcare Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 611 (Mo. banc. 2006)

(citations omitted).

Plaintiffs allege their trade secrets include business methods, practices, pricing policies,

service development data, marketing information, customer lists, customer accounts, and product

and service information. (Doc. 1, ¶¶ 209-213.) Plaintiffs further plead that they have “made a

substantial investment in money, time, manpower, research, technology and other resources” in

creating and developing their trade secrets, and that “such expenses have included the research and

development of proprietary and confidential marketing and sales strategies and plans and the

implementation of the same, together with proprietary and confidential processes, methods,

business practices and pricing policies.” (Doc. 1, ¶ 209.) Additionally, Plaintiff pleads they have

expended “substantial sums of money in compensating current and former employees to both bring

customer leads and customer relationships to Pipeline for the Company’s benefit and profit, and

to encourage employees to foster and grow Pipeline’s customer leads and relationships for the

Company’s benefit.” (Id., ¶ 210.)

Mammoth Defendants argue Plaintiffs’ allegations are conclusory. See STIM, LLC v.

Aecom Tech. Servs., Inc., No. 15-0772-CV-W-ODS, 2016 WL 1298145, at *4 (W.D. Mo. Apr. 1,

2016); Trone Health Servs., Inc. v. Express Scripts Holding Co., No. 4:18-CV-467 RLW, 2019

WL 1207866, at *8 (E.D. Mo. Mar. 14, 2019). “Although whether a trade secret exists is a legal

question, as demonstrated by the relevant factors, it is a legal question that depends upon applicable

facts.” InfoDeli, LLC v. W. Robidoux, Inc., No. 4:15-CV-00364-BCW, 2016 WL 6921624, at *5

(W.D. Mo. Aug. 26, 2016); see also Flowshare, LLC v. TNS, US, LLC, No. 4:16-CV-00300-JAR,

2017 WL 3174321, at *5 (E.D. Mo. July 26, 2017) (denying motion to dismiss even though trade

secret allegations were “broad and general”); Noble & Assocs. v. Edwards, 2007 U.S. Dist. LEXIS

78014 at *6-7 (W.D. Mo. Oct. 19, 2007); Porters Bldg. Centers, Inc. v. Sprint Lumber, No. 16-

06055-CV-SJ-ODS, 2017 WL 4413288, at *5 (W.D. Mo. Oct. 2, 2017) (denying summary

judgment because there was a genuine issue of fact as to whether plaintiff’s customer lists,

financial data, market share, inventory turnover, material lists for customers' jobs, and internal

operating procedures were a trade secrets). Based on Plaintiffs’ allegations, they have sufficiently

pleaded the existence of a trade secret(s).

B. Misappropriation

Next, Mammoth Defendants argue Plaintiffs failed to adequately plead misappropriation.

Misappropriation of a trade secret occurs either “when one acquires a trade secret through

‘improper means,’ that is, through such means as theft, bribery or inducing one to breach a duty

of secrecy . . . or when one disclosing a trade secret without consent . . . knew or had reason to

know that the secret was ‘acquired under circumstances giving rise to a duty to maintain its secrecy

or limits its use.’” BP Chemicals Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 683 (8th Cir. 2002)

(citing H & R Block E. Tax Servs., Inc. v. Enchura, 122 F. Supp. 2d 1067, 1074 (W.D. Mo. 2000)).

Here, Plaintiffs have pleaded Mammoth Defendants acted in concert with S&A and Rumaner to

take the trade secretes of Plaintiff, which they then used to their financial benefit. Plaintiffs

adequately pleaded misappropriation.

C. Damages

Finally, Mammoth Defendants argue Plaintiffs alleged nothing more than speculative

damages. Under Mo. Rev. Stat. Section 417.453(4)(a),

A plaintiff whose trade secret has been misappropriated may recover “both the

actual loss caused by misappropriation and the unjust enrichment caused by

misappropriation that is not taken into account in computing actual loss.” Mo. Rev.

Stat. § 417.457.1. . . . However, in place of such a measure, “the damage caused

by misappropriation may be measured by imposition of liability for a reasonable

royalty for a misappropriator's disclosure or use of a trade secret.”

Hallmark Cards, Inc. v. Monitor Clipper Partners, LLC, No. 08-0840-CV-W-ODS, 2012 WL

3047211, at *2 (W.D. Mo. July 25, 2012) (emphasis removed). Plaintiffs plead they suffered

actual losses. Even if this allegation were insufficient, Plaintiffs could opt for the royalty value of

their trade secrets. Id. Therefore, Plaintiffs have stated a claim under Count XIII, and the Court

will deny Mammoth Defendants’ motion to dismiss on this point.

VII. Civil Conspiracy (Count VIII)

To establish a claim of civil conspiracy, Plaintiffs must prove “(1) two or more persons;

(2) with an unlawful objective; (3) after a meeting of the minds; (4) committed at least one act in

furtherance of the conspiracy; and (5) the plaintiff was thereby injured.” Higgins v. Ferrari, 474

S.W.3d 630, 642 (Mo. Ct. App. 2015) (internal quotations and citations omitted). Mammoth

Defendants argue Plaintiffs’ civil conspiracy claim fails because they fail to state a claim on any

other count and Plaintiffs’ allegations are conclusory.

The Court can dispense with Mammoth Defendants’ first argument as the Court holds

above that Plaintiffs have stated a claim on some counts. As to the second argument, Plaintiffs

alleged in their Complaint that Mammoth conspired with S&A and Rumaner to produce and

operate concerts at the same venue for Rumaner’s own personal profit, to replace Pipeline in the

management of the Company, and to divert trade secrets away from Pipeline. (Doc. 1 at ¶¶ 2, 67,

77, 106). Plaintiffs supported their allegations of conspiracy by explaining that by virtue of its

membership in the Company, S&A had access to Pipeline’s proprietary business information and

shared it with Mammoth. (Doc. 1 at ¶¶ 72-78). Further, Plaintiffs allege that Mammoth

Defendants encouraged and actively worked with S&A to “divert the Company’s and Pipeline’s

business, artists, clients, prospects, confidential and proprietary information, data and trade secrets

away from them and to their new venture.” (Id. at ¶ 77.) Plaintiffs’ Complaint contains supportive

facts and used more than the conclusory statements. Therefore, the Court will deny Mammoth

Defendants motion as to count VIII.

VIII. Injunctive Relief (Count XIV)

Finally, Mammoth Defendants argue Count XIV should be dismissed because there is no

cause of action for injunctive relief. “[I]njunctive relief is a remedy and not an independent cause

of action. Wholesale All., LLC v. Express Scripts, Inc., 366 F. Supp. 3d 1069, 1082 (E.D. Mo.

2019). Therefore, while Plaintiffs may have injunctive relief as a potential remedy, it is not an

independent cause of action, and the Court will dismiss Count XIV.

Conclusion

Accordingly, and after careful consideration, the motions (Docs. 36, 38) are GRANTED

in part and DENIED in part. Specifically, it is ordered:

1. Mammoth Defendants’ motion to dismiss Count VII is DENIED.

2. Mammoth Defendants’ motion to dismiss Count IX is GRANTED and Count IX

is DISMISSED without prejudice.

3. Mammoth Defendants’ motion to dismiss Count X is GRANTED and Count X is

DISMISSED without prejudice.

4. Mammoth Defendants’ motion to dismiss Count XI is DENIED.

5. Mammoth Defendants’ motion to dismiss Count XII is DENIED.

6. Mammoth Defendants’ motion to dismiss Count XIII is DENIED.

7. Mammoth Defendants’ motion to dismiss Count VIII is DENIED.

8. Mammoth Defendants’ motion to dismiss Count XIV is GRANTED and Plaintiffs’

Count XIV is DISMISSED with prejudice.

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: August 5, 2020