# Data Device Corporation v. W.G. Holt, Inc.

> District Court, E.D. New York · November 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10305342

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305342

## How later opinions describe it (automated extraction)

- concluding plaintiff sufficiently raised an inference that defendant used its trade secret where defendant was positioned to benefit from use of the trade secret because “knowledge of the [trade secret] would enable [defendant] inevitably to better compete with [plaintiff]”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
DATA DEVICE CORPORATION,

Plaintiff,
MEMORANDUM & ORDER
-against- 19-CV-4105(JS)(ARL)

W.G. HOLT, INC. d/b/a HOLT INTEGRATED
CIRCUITS, HOLT INTEGRATED CIRCUITS,
INC., and SEAN SLEICHER,

Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff: John A. DeMaro, Esq.
Mark S. Mulholland, Esq.
Melissa Sanderleaf, Esq.
Ruskin Moscou Faltischek, P.C.
1425 RXR Plaza, East Tower, 15th Floor
Uniondale, New York 11556

For Defendants: Michael R. Yellin, Esq.
Cole Schotz, P.C.
25 Main Street
Court Plaza North
Hackensack, New Jersey 07601

Benjamin Charles Deming, Esq., pro hac vice
Meredith Louise Williams, Esq., pro hac vice
Michael D. Adams, Esq., pro hac vice
Rutan & Tucker LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626
SEYBERT, District Judge:
Before the Court is Defendants W.G. Holt Inc. D/B/A Holt
Integrated Circuits (“W.G. Holt”), Holt Integrated Circuits, Inc.
(together with W.G. Holt, “Holt”) and Sean Sleicher’s
(collectively, “Defendants”) motion to dismiss Plaintiff Data
Device Corporation’s Second, Third, Fourth, Fifth, Sixth, and
Eighth claims for relief pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, and to transfer this action to the United
States District Court for the Central District of California

pursuant to 28 U.S.C. § 1404. (Mot., D.E. 32; Defs. Br., D.E. 32-
1; Pl. Opp., D.E. 36; Defs. Reply, D.E. 37.)
For the following reasons, the motion to dismiss is
GRANTED as to Plaintiff’s Fourth, Fifth, Sixth, and Eighth claims
for relief, and DENIED as to Plaintiff’s Second and Third claims
for relief. In addition, the motion to transfer is DENIED.
FACTUAL BACKGROUND1
I. Data Device Corporation
Plaintiff Data Device Corporation (“Plaintiff” or “Data
Device”) designs and manufactures connectivity, power, and control
solutions for military, aeronautical, space and civilian
applications from its headquarters in Bohemia, New York and other

satellite offices. (Compl., D.E. 1, ¶¶ 12, 18-19.) This case
involves one of Data Device’s connectivity product lines: bus
terminals2 meeting MIL-STD-1553 specifications. MIL-STD-1553
(“1553”) is a specification established in 1973 by the United
States Air Force and Department of Defense to describe the

1 The following facts are drawn from the Complaint and are assumed
to be true for purposes of this Memorandum and Order.

2 “A bus is a subsystem that is used to connect computer components
and transfer data between them.” Bus, TECHOPEDIA (last updated Sept.
30, 2020), https://www.techopedia.com/definition/2162/bus.
operational properties of serial data buses used in many of today’s
military, space, and civilian systems. (Id. ¶ 36.) According to
Data Device, its 1553 bus solutions are designed into most

aircraft, helicopter, drones, missile programs and space systems
that utilize 1553 componentry, and its 1553 “Designer’s Guide” is
considered the industry standard for avionics engineers. (Id. ¶¶
38, 40.) In connection with its 1553 product line, Data Device
maintains confidential technical and business information,
including, as relevant here: (1) Data Device’s 1553 Driver Library
Source Code; (2) technical data sheets and user guides; and
(3) customer, product, and sales data.
Data Device’s copyrighted 1553 Driver Library Source
Code (the “1553 Driver Library”), embodied in nearly six hundred
thousand lines of source code designed for six different operating
systems, allows its 1553 customers to develop their own customized

driver programming, thereby enhancing product utility and
functionality. (Id. ¶¶ 44-45.) The underlying source code has
been written and refined over the course of approximately twenty
years, resulting in two generations: (1) the legacy EMACE Library;
and (2) the ACE-X Library, which Data Device rolled out in 2007.
(Id. ¶¶ 46, 51.) Customers access the 1553 Driver Library pursuant
to a Software License Agreement. (Id. ¶ 50.) Moreover, customers
who wish to access the ACE-X Library must execute a non-disclosure
agreement that prohibits the duplication or transfer of the
underlying source code. (Id. ¶ 53.) Internally at Data Device,
the ACE-X Library source code is maintained in a controlled-access
Software Configuration Management (“SCM”) database. (Id. ¶¶ 54-

55.) Data Device grants employees access to the SCM database
according to standard operating procedures (“SOPs”). (Id. ¶ 56.)
Data Device’s copyrighted Data Sheets and User Guides are
scientifically formatted instruction manuals that set forth
operating and performance protocols and technical information that
enable customers to integrate 1553 components into broader
platforms and on-board assemblies. (Id. ¶ 59.)
Most important to the issues here, Data Device also
maintains extensive information regarding its 1553 component
sales, such as purchaser volume information, product codes and
specifications, configuration and performance preferences, and
pricing and margin data (the “1553 Customer, Product & Sales

Data”). (Id. ¶ 66.) The 1553 Customer, Product & Sales Data is
maintained in a highly restrictive, password-protected database
accessible on a “need to know” basis and contains Data Device’s
“Cimage Fusion” database, which houses engineering documents,
drawings, and product specifications; “Glovia” platform, which
holds accumulated sales data such as purchasing histories and
pricing information; restricted-access Excel environment, which
contains Data Device’s standard pricelists, product margin
information, and pricing formulas; and “SalesLogix” customer
database. (Id. ¶ 70.)
II. Sleicher’s Employment with Data Device and Holt

Defendant Sean Sleicher (“Sleicher”) worked at Data
Device from 2002 to 2014. From 2002 until 2005, Sleicher held the
position of Senior Applications Engineer, during which time Data
Device alleges he had access to “confidential information relating
to the technical design of plaintiff’s products, including
plaintiff’s line-up of MIL-STD-1553 components” to “facilitate his
creation and revision of technical datasheets, manuals, user
guides and other literature.” (Id. ¶¶ 80-81.) Data Device further
alleges that Sleicher had access to its “Cimage Fusion,” 1553
Driver Library files, and “source code files” during that time.
(Id. ¶¶ 82-84.) When Data Device promoted Sleicher to Marketing
and Product Line Manager in 2009, Data Device alleges he gained

access to the “Glovia” platform, restricted-access Excel
environment, and “SalesLogix.” At all times during his employment,
Sleicher was bound by confidentiality obligations set forth in his
employment agreement (Employment Agmt., Ex. 17 to Compl.), Data
Device SOPs, and company ethics and privacy policies (Compl. ¶¶
75-78).
In October 2014, Sleicher informed Data Device that he
would be leaving the company; in November 2014, he started working
at Holt, a California company with an office in Hauppauge, New
York.3 (Id. ¶¶ 91-93.) In October 2018, Defendants announced the
release of new software-compatible chips intended to compete with
Data Device’s 1553 chips. (Id. ¶ 96.) In March 2019, Holt

announced the release of a new line of 1553 bus terminals
characterized as “Drop-In Replacements” for Data Device’s
proprietary 1553 terminals (“6200 Suite”). (Id. ¶ 97; Holt Press
Release, Ex. 3 to Compl.) Data Device alleges that “mounting
evidence demonstrates” Sleicher improperly assisted in the
development and design of Holt’s 1553 bus terminals by “disclosing
to [Holt] highly confidential information concerning
(i) [P]laintiff’s sales activity, (ii) customer identities,
(iii) customer configuration and operational preferences and
requirements, (iv) pricing and margin information, and
(v) confidential data relevant to [P]laintiff’s -- and now
[Holt’s] -- determination to develop and design those specifically

formatted 1553 components.” (Compl. ¶¶ 101-02.) Although not
directly relevant to the present motion, Data Device further
alleges that Holt infringed on several of its copyrights by copying
its 1553 Driver Library, Data Sheets, and User Guides. (Id. ¶¶
103-08.)

3 Plaintiff alleges that Holt established a New York office only
upon retaining Sleicher. (Compl. ¶¶ 94-95.)
PROCEDURAL HISTORY
Data Device initiated this action against Defendants on
July 16, 2016, alleging claims for (1) federal copyright

infringement, 17 U.S.C. § 101 et seq.; (2) violations of the Defend
Trade Secrets Act (“DTSA”), 18 U.S.C. § 1831 et seq.;
(3) misappropriation of trade secrets; (4) breach of Sleicher’s
fiduciary duty; (5) aiding and abetting breach of Sleicher’s
fiduciary duty; (6) unfair competition; (7) breach of contract as
to Sleicher; and (8) unjust enrichment as to Holt. (Compl. ¶¶ 110-
84.) On December 27, 2019, Defendants filed a motion to dismiss
Data Device’s Second, Third, Fourth, Fifth, Sixth, and Eighth
causes of action pursuant to Federal Rule of Civil Procedure
12(b)(6). (See Defs. Br. at 1.) Defendants also seek to strike
the Sixth Claim for Relief as redundant pursuant to Rule 12(f).
(Id.) Defendants did not move to dismiss Plaintiff’s copyright

infringement and breach of contract claims. Instead, on May 22,
2020, Defendants filed a partial answer to these claims and
asserted counterclaims against Data Device. (See Defs. Partial
Answer and Countercl., D.E. 38.) Data Device’s request for a more
definite statement of Defendants’ counterclaim is outstanding.
(D.E. 51.)
DEFENDANTS’ MOTION TO DISMISS
I. Standard for Motions to Dismiss
To withstand a motion to dismiss, a complaint must

contain factual allegations that “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This plausibility standard is not a “probability
requirement” and requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id. (internal quotation marks
and citation omitted). In other words, the complaint must allege
“enough facts to state a claim to relief that is plausible on its
face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.
2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
II. Violation of the DTSA
Defendants seek dismissal of Plaintiff’s second cause of
action for violations of the DTSA. “To state a claim for trade
secret misappropriation under the DTSA, a plaintiff must plausibly
allege that (1) it possessed a trade secret, and (2) the defendant
misappropriated the trade secret.” ExpertConnect, L.L.C. v.
Fowler, No. 18-CV-4828, 2019 WL 3004161, at *3 (S.D.N.Y. July 10,
2019) (citing 18 U.S.C. § 1836(b)(1)). The DTSA defines
“misappropriation” as the “acquisition of a trade secret of another
by a person who knows or has reason to know that the trade secret
was acquired by improper means” or “disclosure or use of a trade

secret of another without express or implied consent.” AUA Private
Equity Partners, LLC v. Soto, No. 17-CV-8035, 2018 WL 1684339, at
*4 (S.D.N.Y. Apr. 5, 2018) (quoting 18 U.S.C. § 1839(3)). Thus,
the DTSA provides three alternative bases for liability:
(1) acquisition, (2) disclosure, or (3) use. Id. (citations
omitted). However, only those acts of misappropriation that
occurred on or after May 11, 2016, the date of the DTSA’s
enactment, are covered by the Act. Id.
Both parties agree that only Data Device’s 1553
Customer, Product & Sales Data qualify as trade secrets. (See
Compl. ¶¶ 102, 137-48; Defs. Br. at 1-2.) However, the parties
disagree whether Defendants misappropriated the 1553 Customer,

Product & Sales Data. As alleged, the timeline shows that any
acquisition of Data Device’s trade secrets took place during
Sleicher’s employment there from 2002 to 2014. According to
Defendants, because any acquisition would have occurred before the
enactment of the DTSA in 2016, such conduct is not covered by the
DTSA. (Defs. Br. at 12-14.) Moreover, Defendants argue that the
Complaint pleads only conclusory allegations that Defendants used
the 1553 Customer, Product & Sales Data in developing the 6200
Suite. (Id. at 9-12.) Data Device focuses on the timeline as
well, arguing that the complaint adequately alleges ongoing use of
Data Device’s 1553 Customer, Product & Sales Data from the time
Sleicher joined Holt through the development and launch of Holt’s

6200 Suite in 2019, a development and launch made possible only
with Data Device’s trade secrets. (Pl. Opp. at 7-13.)
First, the Court agrees with Defendants that Plaintiff
has failed to allege that Defendants acquired Data Device trade
secrets in violation of the DTSA. Plaintiff does not allege that
Sleicher acquired its trade secrets after he left the company in
October 2014. Therefore, if he acquired Data Device’s 1553
Customer, Product & Sales Data, he did so as an employee sometime
between 2002 and 2014. Because Sleicher was not employed at Data
Device at the time of the DTSA’s effective date, he did not acquire
its trade secrets in violation of the DTSA.
Whether the Complaint plausibly alleges that Sleicher

disclosed and Defendants used Data Device trade secrets to roll
out the 6200 Suite is a much closer call. On this point,
Plaintiff’s allegations may be summarized as follows: (1) Sleicher
had access to Data Device’s confidential 1553 Customer, Product &
Sales Data as an employee; (2) shortly after Sleicher left Data
Device, he joined Holt, and Holt began to design and develop its
own 1553 product line, including the 6200 Suite, to compete with
Data Device; and (3) the nature and technical parameters of the
6200 Suite demonstrate that its design, development, marketing and
sale were made possible by Data Device’s confidential 1553
Customer, Product & Sales Data. As discussed below, based on such
allegations, the Court may reasonably infer that Defendants

misappropriated Data Device’s trade secrets and, therefore, the
Court finds that Data Device has met its burden, albeit barely, at
this stage.
At the pleading stage, courts may reasonably infer that
the defendant used plaintiff’s trade secret where the defendant
retains plaintiff’s employees and launches a competing product
shortly thereafter. See Oneida Group Inc. v. Steelite Int’l U.S.A.
Inc., No. 17-CV-957, 2017 WL 6459464, at *8 (E.D.N.Y. 2017). In
Oneida, the plaintiff plausibly alleged that the defendant used
its marketing strategies, margins, and customer-specific
strategies, obtained by two former employees, to sell dish products
previously sold by the plaintiff. Id. Similarly, in Medtech

Products Inc. v. Ranir, LLC, the plaintiff stated a claim for trade
secret misappropriation where the complaint alleged that two
former employees with “extensive knowledge of [plaintiff’s]
business and production process” disclosed that confidential
information to the defendant, which was able to bring a similar
product to market. 596 F. Supp. 2d 778, 790 (S.D.N.Y. 2008).
Here, although Defendants assert that, unlike in Oneida and
Medtech, they took years to design and develop the Suite 6200,
this does not rebut the plausible inference that Defendants used
Plaintiff’s confidential 1553 Customer, Product & Sales Data to
successfully design, develop, market and sell their 1553 product
line, especially given Plaintiff’s allegation, which the Court

must accept as true, that “the lead time required for defendant
[Holt] to develop its new line of MIL-STD-1553 components was
approximately 3 to 4 years.” (Compl. ¶ 98.)
To support their argument that Plaintiff failed to
allege use of its trade secrets, Defendants rely heavily on
Mastercraft Decorators, Inc. v. Orlando, 356 F. Supp. 3d 259
(W.D.N.Y. 2018), cited by Defs. Br. at 9-11. Notwithstanding its
superficial resemblance to the instant case, the Court finds
Mastercraft is distinguishable. There, the plaintiff, a custom
glassware distributor, alleged that its former employee, Orlando,
misappropriated its trade secrets, such as customer lists and
pricing information, to solicit customers at his new employer.

Id. at 264. Although the plaintiff alleged that the defendants
misappropriated its customer lists and other confidential
information to solicit its customers, it failed to identify
specific customers the defendants contacted using its trade
secrets. Id. at 273. The Mastercraft court held that the
plaintiff’s failure to identify the trade secrets at issue was
fatal to its claims and, the Court observed, obiter dictum, that
allegations as to how the defendants used its trade secrets were
conclusory. Id. at 274. However, unlike Mastercraft, this action
involves more than a simple customer list, the use of which would
have been easier to ascertain and plead. Here, Data Device alleges
that Defendants used a host of confidential data, including

customer configuration and operational preferences and
requirements, pricing and margin information, sales activity, and
customer identities to bring a new product to market and sell it
at competitive costs. (Compl. ¶ 102.) “At this stage, without
discovery, it is to be expected that Plaintiff would have limited
knowledge of the extent to which Defendant has used their trade
secrets.” Next Commc’ns, Inc. v. Viber Media, Inc., No. 14-CV-
8190, 2016 WL 1275659, at *5 (S.D.N.Y. Mar. 30, 2016) (holding
plaintiffs sufficiently alleged that defendant used their trade
secrets in developing a feature for its own app, even though the
allegations were based on “second-hand knowledge” from one of
defendant’s investors); Balance Point Divorce Funding, LLC v.

Scrantom, 978 F. Supp. 2d 341, 353 (S.D.N.Y. 2013) (concluding
plaintiff sufficiently raised an inference that defendant used its
trade secret where defendant was positioned to benefit from use of
the trade secret because “knowledge of the [trade secret] would
enable [defendant] inevitably to better compete with
[plaintiff]”). This is especially true where, as here, the way
Defendant may have used Plaintiff’s trade secrets are “peculiarly
within the opposing party’s knowledge.”4 Next Commc’ns, Inc., 2016
WL 1275659, at *5 (quoting Boykin v. KeyCorp, 521 F.3d 202, 215
(2d Cir. 2008)).

Fundamentally, Defendants’ reading of the Complaint
fails to acknowledge Plaintiff’s allegations in their entirety.
Gen. Sec., Inc. v. Comm. Fire & Sec., Inc., No. 17-CV-1194, 2018
WL 3118274, at *4 (E.D.N.Y. June 25, 2018). Defendants would have
the Court limit Plaintiff’s allegations regarding Defendants’
supposed use of Data Device trade secrets to a single paragraph in
the Complaint, that is, paragraph 102. (See Defs. Br. at 11-12
(discussing paragraph 102).) Although paragraph 102 is central to
the cause of action, Plaintiff’s allegations regarding Defendants’
use of its trade secrets are not so limited. (See, e.g., Compl.
¶¶ 96-97, 99, 109, 181 (alleging Defendants are “actively selling
[D]efendants’ new line of MIL-STD-1553 products”).) Moreover,

although not directly relevant to its DTSA claim, the Court
acknowledges Plaintiff’s allegations of copyright infringement as
to its 1553 Driver Library, Data Sheets, and User Guides. (Id. ¶¶
103-08.)
Although a close call, the Court finds that a fair
reading of the Complaint in its entirety leads to the reasonable

4 For example, it is difficult to say how Plaintiff, without
discovery, could more thoroughly plead how Defendants used
Plaintiff’s confidential margin, pricing, and forecast data to
select which 1553 components to develop.
inference that Defendants misappropriated Data Device’s trade
secrets. Accordingly, Defendants’ motion to dismiss Plaintiff’s
Second claim for relief under the DTSA is DENIED.
III. Misappropriation of Trade Secrets Under New York Common Law

Plaintiff’s third cause of action asserts a claim for
misappropriation of trade secrets under New York common law. “To
succeed on a claim for the misappropriation of trade secrets under
New York law, a party must demonstrate: (1) that it possessed a
trade secret, and (2) that the defendants used that trade secret
in breach of an agreement, confidential relationship or duty, or
as a result of discovery by improper means.” N. Atl. Instruments,
Inc. v. Haber, 188 F.3d 38, 43–44 (2d Cir. 1999), cited by
Schroeder v. Pinterest Inc., 17 N.Y.S.3d 678, 690 (N.Y. App. Div.
1st Dep’t 2015).
“The requirements are similar for showing a

misappropriation of a trade secret under the DTSA and
misappropriation under New York common law.” ExpertConnect,
L.L.C., 2019 WL 3004161, at *7 (citing Free Country Ltd. v.
Drennen, 235 F. Supp. 3d 559, 565 (S.D.N.Y. 2016)). The Court
finds that Plaintiff plausibly states a claim for misappropriation
of trade secrets under New York law for substantially the same
reasons that the Complaint sufficiently pleads a DTSA claim.
Accordingly, Defendants’ motion to dismiss Plaintiff’s Third claim
for relief for misappropriation under New York law is DENIED.
IV. Breach of Fiduciary Duty and Aiding and Abetting Breach of a
Fiduciary Duty
Defendants argue that Plaintiff’s claim for breach of
fiduciary duty (Count Four) as to Sleicher is duplicative of its
claim for breach of contract (Count Seven). (Defs. Br. at 16-18.)
The Court agrees.
Under New York law, “a cause of action alleging breach
of a fiduciary duty, which . . . is merely duplicative of a breach
of contract claim, cannot stand.” Barbagallo v. Marcum LLP, No.
11-CV-1358, 2012 WL 1664238, at *10 (E.D.N.Y. May 11, 2012)

(quoting Hylan Elec. Contr., Inc. v. MasTec N. Amer., Inc., 903
N.Y.S.2d 528, 530 (N.Y. App. Div. 2d Dep’t 2010)). Such claims
are duplicative where the allegations of fiduciary wrongdoing “are
either expressly raised in plaintiff’s breach of contract claim or
encompassed within the contractual relationship by the requirement
implicit in all contracts of fair dealings and good faith.” Balta
v. Ayco Co., LP, 626 F. Supp. 2d 347, 360 (W.D.N.Y. 2009) (quoting
Brooks v. Key Trust Co. Nat’l Ass’n, 809 N.Y.S.2d 270, 273 (N.Y.
App. Div. 3d Dep’t 2006)). Accordingly, “a plaintiff may not
maintain both a contract claim and a breach of fiduciary duty
claim, without ‘allegations that, apart from the terms of the
contract, the parties created a relationship of higher trust than

would arise from their contracts alone, so as to permit a cause of
action for breach of a fiduciary duty independent of the
contractual duties.’” Id. at 360-61 (quoting Brooks, 809 N.Y.S.
at 273) cited in Pl. Opp. at 21-22. A party may pursue a claim
for breach of fiduciary duty; however, this legal duty must “spring

from circumstances extraneous to, and not constituting elements
of, the contract. . . .” Consol. Risk Servs., Inc. v. Auto.
Dealers WC Self Ins. Trust, No. 06-CV-871, 2007 WL 951565, at *2
(N.D.N.Y. Mar. 27, 2007) (quoting LaBarte v. Seneca Res. Corp.,
728 N.Y.S.2d 618, 622 (N.Y. App. Div. 4th Dep’t 2001)).5
Plaintiff’s allegations regarding Sleicher’s alleged
breach of his fiduciary duty are duplicative of its breach-of-
contract allegations, because they are premised on Sleicher’s
contractual duty not to misappropriate Plaintiff’s confidential
trade secrets and copyrighted materials. (Compare Compl. ¶ 155
(alleging Defendant Sleicher breached his fiduciary duty by
“disclosing to [Holt] confidential and proprietary information”),

with id. ¶ 176 (alleging Defendant Sleicher breached his
contractual obligations by “disclos[ing] plaintiff’s Proprietary
Information” to Holt).) Because Plaintiff failed to allege that
Defendant Sleicher owed a duty independent of his contractual
duties, let alone a “relationship of higher trust” between the

5 The same standard applies to Plaintiff’s claim for aiding and
abetting breach of fiduciary duty (Count Five). See Uni-World
Cap., L.P. v. Preferred Fragrance, Inc., 43 F. Supp. 3d 236, 245
(S.D.N.Y. 2014) (dismissing breach of fiduciary duty claim and
aiding and abetting the same alleged breach of fiduciary duty where
they were duplicative of the alleged breach of contract).
parties, Plaintiff’s claim for breach of fiduciary duty cannot
stand.
Accordingly, Defendants’ motion to dismiss Plaintiff’s

Fourth and Fifth claims for breach of fiduciary duty and aiding
and abetting breach of fiduciary duty is GRANTED.
V. Unfair Competition Under New York Common Law
Defendant argues that Plaintiff’s Sixth claim for unfair
competition is duplicative of its trade secrets and breach of
contract claim as to Sleicher because they are based on the same
set of facts. (Defs. Br. at 15.) Again, the Court concurs.
To state a claim for unfair competition, “a plaintiff
must allege that a defendant misappropriated plaintiff’s labor,
skills, expenditures or good will, and displayed some element of
bad faith in doing so.” Schroeder, 17 N.Y.S.3d at 690; accord
Telecom Int’l Am., Ltd. v. AT&T Corp., 280 F.3d 175, 197 (2d Cir.

2001). “A claim for unfair competition based on the same
allegations as a claim for misappropriation of trade secrets is
treated as a single cause of action.” Uni-Systems, LLC v. U.S.
Tennis Ass’n, Inc., 350 F. Supp. 3d 143, 179 (E.D.N.Y. 2018)
(citing Abernathy-Thomas Eng’g Co. v. Pall Corp., 103 F. Supp. 2d
582, 600 (E.D.N.Y. 2000)); see also Mastercraft, 356 F. Supp. 3d
at 269 (“Courts often analyze misappropriation of trade secret and
confidential information and unfair competition claims
together.”). Here, Plaintiff’s claim for unfair competition is
based on its allegation that Defendants “misappropriated
[P]laintiff’s valuable, proprietary information including trade
secret materials and data.” (Compl. ¶ 166.) Therefore,

Plaintiff’s unfair competition claim is duplicative of its claim
for misappropriation of trade secrets.6 Accordingly, the Court
GRANTS Defendant’s motion to dismiss the unfair competition claim,
understanding that the two claims rise or fall together, and that
Plaintiff may not ultimately prevail on both. Uni-Systems, LLC,
350 F. Supp. 3d at 179.
VI. Unjust Enrichment
The Complaint’s eighth cause of action is a claim for
unjust enrichment made pursuant to New York law, which requires a
plaintiff to plead that: “(1) defendant was enriched, (2) at
plaintiff’s expense, and (3) equity and good conscience militate
against permitting defendant to retain what plaintiff is seeking

to recover.” Ashland Inc. v. Morgan Stanley & Co., 652 F.3d 333,
339 (2d Cir. 2011) (citation omitted); accord Georgia Malone &
Co., Inc. v. Rieder, 973 N.E.2d 743, 746 (N.Y. 2012). A plaintiff
cannot succeed on an unjust enrichment claim under New York law
“unless [plaintiff] has a sufficiently close relationship with the
other party.” Schroeder, 17 N.Y.S.3d at 690 (quoting Georgia

6 Because the Court finds that the unfair competition claim is
duplicative of the misappropriation claim, it need not decide
whether it is also duplicative of the breach of contract claim.
Malone, 973 N.E.2d at 746). Further, “[a]n unjust enrichment claim
is not available where it simply duplicates, or replaces, a
conventional contract or tort claim.” Corsello v. Verizon New

York, Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012).
Here, it is uncontested that Plaintiff’s unjust
enrichment claim arises out of the same subject matter as its
breach of contract claim. (Compare Compl. ¶ 176, with id. ¶ 181.)
The Complaint’s breach of contract claim is premised on the
allegation that Sleicher breached his contractual obligations by
acquiring and using Data Device’s confidential information for
Holt’s benefit. The unjust enrichment claim arises from the same
alleged misconduct: that Defendants “benefitted by selecting for
development, developing and actually selling competitive products
-- all through the exploitation of property, know-how and
proprietary works belonging exclusively to [P]laintiff.” (Compl.

¶ 181.) Accordingly, Defendants’ motion to dismiss Plaintiff’s
unjust enrichment claim against Sleicher is GRANTED. See
ExpertConnect, L.L.C., 2019 WL 3004161, at *10.
Moreover, Plaintiff has failed to allege a sufficiently
close relationship between Data Device and Sleicher. See Georgia
Malone, 973 N.E.2d at 746. Data Device and Holt are in direct
competition. As Defendants argue, any relationship between rival
companies like Data Device and Holt is “too attenuated” to sustain
an unjust enrichment claim. Id.; see also Schroeder, 17 N.Y.S. at
670. Accordingly, Defendants’ motion to dismiss Plaintiff’s
unjust enrichment claim against Holt is GRANTED.
DEFENDANTS’ MOTION TO TRANSFER

Defendants seek a transfer pursuant to 28 U.S.C.
§ 1404(a) (“Section 1404”), which states that “[f]or the
convenience of parties and witnesses, in the interest of justice,
a district court may transfer any civil action to any other
district or division where it might have been brought . . . .” “A
motion to transfer requires a two-fold inquiry: (1) whether the
action could have been commenced in the transferee court, and
(2) whether a transfer is appropriate considering the convenience
of parties and witnesses and the interest of justice.” Sam v.
Selip & Stylianou, LLP, No. 15-CV-2780, 2015 WL 9462109, at *3
(E.D.N.Y. Dec. 28, 2015) (internal quotation marks and citations
omitted). In determining whether a transfer is warranted, this

Court may also consider
(1) convenience of witnesses; (2) convenience
of parties; (3) locus of operative facts;
(4) availability of process to compel the
attendance of unwilling witnesses;
(5) location of relevant documents and other
sources of proof; (6) relative means of the
parties; (7) relative familiarity of the forum
with the governing law; (8) weight accorded to
the plaintiff's choice of forum and (9) the
interests of justice.
Id. (quoting Kroll v. Lieberman, 244 F. Supp. 2d 100, 102 (E.D.N.Y.
2003)). “[M]otions for transfer lie within the broad discretion
of the district court and are determined upon notions of
convenience and fairness on a case-by-case basis.” Aldino v. I.K.
Sys., Inc., No. 18-CV-6781, 2019 WL 4887655, at *2 (E.D.N.Y. Sept.

30, 2019) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117
(2d Cir. 1992) (further citation omitted)). However, “[t]he party
requesting transfer carries the burden of making out a strong case
for transfer, [and] the plaintiff’s choice of forum should not be
disturbed unless the balance of factors tips decidedly in favor of
a transfer.” Carson Optical, Inc. v. Hawk Importers, Inc., No.
12-CV-1169, 2013 WL 12370815, at *2 (E.D.N.Y. 2013) (internal
quotation marks and citations omitted). The Court finds that
Defendants have failed to make out a strong case for transfer, as
it would only shift the burden of inconvenience from one party to
the other. Dwyer v. General Motors Corp., 853 F. Supp. 690, 694
(S.D.N.Y. 1994) (citing Schieffelin & Co. v. Jack Co. of Boca,

Inc., 725 F. Supp. 1314, 1321 (S.D.N.Y. 1989)).
Since the parties do not dispute that this matter could
have been initiated in the Central District of California, the
Court’s inquiry is limited to whether transfer is appropriate in
light of the factors enumerated, supra. Defendants focus primarily
on the relative means of the parties and witness convenience,
particularly the convenience of non-party witnesses. (Defs. Br.
at 20-21.) Defendants argue that Holt is “very small compared to
[Data Device] (and its parent Transdigm) whose sales, employees,
and means far exceed that of Holt.” (Id. at 21.) Moreover,
Defendants identify twenty-six potential witnesses -- fifteen Holt
employees and eleven third parties -- that reside in Southern

California. (Id.)
The Court is obliged to consider the relative means of
the parties when, as here, “an apparent disparity exists.”
Pecorino v. Vutec Corp., 934 F. Supp. 2d 422, 438 (E.D.N.Y. 2012)
(citations omitted). However, “[a] party arguing for or against
transfer because of inadequate means must offer documentation to
show that transfer (or lack thereof) would be unduly burdensome to
his finances.” Id. at 439 (quoting Neil Bros. Ltd. v. World Wide
Lines, Inc., 435 F. Supp. 2d 325, 331 (E.D.N.Y. 2006)). Here,
while Defendants submit documentation detailing the comparative
size of the two companies, they fail to offer sufficient
documentation showing why litigating in New York would be unduly

burdensome to their finances. In connection with their request,
Defendants submitted an affidavit from their President and CEO,
David J. Meade. (Meade Decl., D.E. 32-2.) Meade averred that
“Holt will face hardship if forced to litigate in New York, because
travel time for Holt’s directors of design and sales, key engineers
and myself . . . will take time away from running our relatively
smaller business in California,” before conceding that “[t]his
litigation will burden Holt and disrupt our business in any event.”
(Id. ¶ 13.) This testimony is similar to testimony the Court found
insufficient in Pecorino. See Pecorino, 934 F. Supp. 2d at 439
(finding insufficient to carry Section 1404 burden reliance upon
only the declaration of defendant’s President and General Manager

that “the costs involved with sending several [defendant] employee
witnesses to trial . . . and the impact of having several members
of upper management away from [defendant’s] offices . . . will
have a substantial, negative financial effect”). As in Pecorino,
without more, this Court finds that Defendants have failed to
demonstrate that “it would be prohibitively expensive for
[Defendants] to prosecute in the current district.” Id.
Accordingly, this factor does not weigh in favor of transfer.
As to the convenience of the witnesses, this Court must
consider “the materiality, nature, and quality of each witness,
not merely the number of witnesses in each district.” Indian
Harbor Ins. Co. v. Factory Mut. Ins. Co., 419 F. Supp. 2d 395, 404

(S.D.N.Y. 2005) (quoting Royal & Sunalliance v. British Airways,
167 F. Supp. 2d 573, 577 (S.D.N.Y. 2001)). Although Defendants
list twenty-six witnesses who will be inconvenienced by
proceedings in New York, it appears they have done so selectively,
omitting seventeen other witnesses from their initial disclosures
who are located outside California. (French Decl., D.E. 34, ¶
54.) Both parties have named witnesses that reside and work in
their respective home states that would be inconvenienced by having
to travel to testify, and whose travel would inconvenience the
productivity of their companies. (Id. ¶ 40; Meade Decl., ¶ 12).
Accordingly, the convenience of witnesses cannot be accommodated
by transferring venue, as inconvenience would simply be shifted

from one set of witnesses to the other. Dwyer, 853 F. Supp. at
694.
To the extent argued, the Court is not persuaded that
the remaining factors weigh strongly in favor of transferring this
case. Accordingly, Defendants’ motion to transfer is DENIED.

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CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendants’
motion to dismiss is GRANTED in part and DENIED in part, resulting

in Plaintiff’s Fourth, Fifth, Sixth, and Eighth claims being
dismissed, but its Second and Third claims remaining; and,
IT IS FURTHER ORDERED that Defendants’ motion to
transfer is DENIED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.

Dated: November 30 2020
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305342. Public record. Not legal advice.