# Bertec v. Sparta Software Corporation

> District Court, S.D. Ohio · May 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10375416

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 4, 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/10375416

## How later opinions describe it (automated extraction)

- noting that in deciding reasonableness, it is proper to consider which state would be the most efficient forum for resolution of the dispute, “what forum's substantive law governs the case, and whether jurisdiction is necessary to prevent piecemeal litigation”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CORPORATION BERTEC, :
:
Plaintiff, : Case No. 2:19-CV-04623
:
v. : CHIEF JUDGE ALGENON L. MARBLEY
:
SPARTA SOFTWARE CORPORATION, : Magistrate Judge Vascura
AND PLAYGROUND GLOBAL LLC :
:
Defendants. :

ORDER
This matter comes before the Court on Defendant, Playground Global LLC’s Motion to
Dismiss Plaintiff’s Verified Complaint for Injunctive and Other Relief. (ECF No. 27). Defendant’s
Motion requests that this Court dismiss Plaintiff’s complaint for lack of personal jurisdiction or,
in the alternative, for failure to state a claim upon which relief can be granted. Id. For the reason
stated below, this Court DENIES Defendant’s motion.
I. BACKGROUND
Bertec Corporation (“Bertec”) is an Ohio company that manufactures and sells force plates,
a product that analyzes a person’s gait, balance, and performance in certain exercises when a
person jumps on the force plate. (ECF No. 2 at 4-5). Sparta Software Corporation (“Sparta”) is a
corporation that provides health and performance software and services to athletes and military
personnel. (ECF No. 27 at 2). Playground Global LLC (“Playground”) is a Palo Alto venture
capital fund that invests in and provides engineering and other services to early stage startup
companies, like Sparta. (ECF No. 44 at 2). Playground invested approximately $5 million in Sparta
in December 2017 and acquired 20% of Sparta’s shares. Id. at 4.
Beginning in December 2017, Playground conducted due diligence into Sparta’s business
operations and learned that Sparta had no capabilities to manufacture its own force plates. Sparta
and Playground agreed that Playground would design a prototype of a force plate for Sparta and
Sparta would decide whether to use that prototype. (ECF No. 44 at 5). Between June and
September 2018, Playground built and tested a force plate prototype. Id. at 6. In July of 2018,

Playground tested its prototype and did some benchmark comparisons of its prototype compared
with Bertec’s force plates. Id. at 6. According to Playground it used a publicly available program
called Tera Term as well as Bertec’s free and publicly available software to read the raw data
generated by both the prototype and Bertec’s force plates. Id. Playground conducted further testing
in September 2018 and then handed off the design files to Sparta. Id. Sparta also identified several
manufacturers that Sparta could pay to build the force plate prototype and continued to provide
input into Sparta’s manufacturing of its own force plate. Id. at 6-7.
Bertec has sold Sparta force plates since 2010. (ECF No. 2 at 5). In August 2018, around
the same time that Playground was developing and testing its force plate prototype, Bertec and

Sparta negotiated and entered into an Exclusive Supply and Software License Agreement
(“Agreement”) wherein Sparta agreed to purchase all the force plates it would need exclusively
from Bertec for five years and Bertec agreed to give Sparta access to its source code so that Sparta
could standardize its data to ensure it was medically and scientifically valid. (ECF No. 2 at 7-8).
In June 2019, Sparta informed Bertec that it was planning to create and sell its own force plates,
and that it had been developing these force plates since December 2017. (ECF No. 2 at 9).
Bertec brought suit against Sparta and Playground on October 18, 2019 alleging that Sparta
breached the Agreement at Playground’s direction by sharing its source code with Sparta to create
its own force plates. (ECF No. 2 at 9-10). Playground alleges that it did not know about the
agreement between Bertec and Sparta until this lawsuit was filed in October 2019 and that it has
never seen the source code that Bertec produced to Sparta. (ECF No. 44 at 7). Playground has filed
a motion to dismiss on the basis that this court lacks personal jurisdiction over its claims and Bertec
has failed to state a claim upon which relief may be granted. (ECF No. 27).
II. LEGAL STANDARD

A. Personal Jurisdiction
A federal court sitting in a diversity matter may exercise jurisdiction over a defendant if
jurisdiction is “both (1) authorized by the law of the state in which it sits, and (2) in accordance
with the Due Process Clause of the Fourteenth Amendment.” Neogen Corp. v. Neo Gen Screening,
Inc., 282 F.3d 883, 888 (6th Cir. 2002). The party seeking to establish the existence of personal
jurisdiction bears the burden to establish such jurisdiction. Beydoun v. Wataniya Rest. Holding,
Q.S.C., 768 F.3d 499, 504 (6th Cir. 2014). When a district court rules on a motion to dismiss
without conducting an evidentiary hearing, the court must consider the pleadings and affidavits in
the light most favorable to the nonmoving party. Id. To defeat such a motion, Plaintiff need only

make a prima facie showing of jurisdiction. Id. When jurisdiction is challenged in a motion to
dismiss, however, “the plaintiff may not stand on his pleading but must, by affidavit or otherwise,
set forth specific facts showing that the court has jurisdiction.” Carrier Corp. v. Outokumpu Oyj,
673 F.3d 430, 449 (6th Cir. 2012) (quoting Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.
1991)). In determining whether plaintiff has met its burden, the district court considers the
pleadings and affidavits “in a light most favorable to the plaintiff[ ]” and does not weigh “the
controverting assertions of the party seeking dismissal.” MAG IAS Holdings, Inc. v. Schmuckle,
854 F.3d 894, 899 (6th Cir. 2017) (quoting Theunissen, 935 F.2d at 1459).
B. Failure to State a Claim
A Court may dismiss a cause of action under Federal Rule of Civil Procedure 12(b)(6) for
“failure to state a claim upon which relief can be granted.” Such a motion “is a test of the plaintiff's
cause of action as stated in the complaint, not a challenge to the plaintiff's factual allegations.”
Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). The Court must construe the
complaint in the light most favorable to the non-moving party and must accept plaintiff's

allegations as true. Stratton v. Portfolio Recovery Assocs., LLC, 770 F.3d 443, 446 (6th Cir. 2014),
as amended (Dec. 11, 2014); Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue
Shield, 552 F.3d 430, 434 (6th Cir. 2008). If more than one inference may be drawn from an
allegation, the Court must resolve the conflict in favor of the plaintiff. Mayer v. Mylod, 988 F.2d
635, 638 (6th Cir. 1993). The Court cannot dismiss a complaint for failure to state a claim “unless
it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Id.
Although liberal, Rule 12(b)(6) requires more than bare assertions of legal conclusions.
Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted). Generally, a complaint

must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). A complaint's factual allegations “must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167
L. Ed. 2d 929 (2007). It must contain “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570, 127 S. Ct. 1955. A claim is plausible when it contains “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
III. LAW & ANALYSIS
A. Personal Jurisdiction
Playground requests that this Court grant its motion to dismiss arguing this Court has no
personal jurisdiction over it since it is an out of state company and has no ties to Ohio. (ECF No.
27 at 5-6). For a federal court to have personal jurisdiction over an out of state person or company,
the court must satisfy both the state’s long arm statute and the due process clause of the Fourteenth
Amendment. Power Investments, LLC v. SL EC, LLC, 927 F.3d 914, 917 (6th Cir. 2019). Personal

jurisdiction may be specific or general. Id. A state exercises general personal jurisdiction over a
defendant when the defendant’s connections to the state are so extensive that it is essentially “at
home” in the state and may be brought to court there on any matter, even when not related to the
defendant’s connections to the state. See Daimler AG v. Bauman, 571 U.S. 117, 127 (2014)
(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). A state
exercises specific jurisdiction over a defendant where the defendant’s connections to the state form
the basis of the suit. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)
A state’s exercise of specific personal jurisdiction pursuant to a long arm statute must
satisfy the requirements of due process—meaning the out of state defendant must have sufficient

minimum contacts with the state so that the court’s exercise of its power over the defendant does
not “offend traditional notions of fair play and substantial justice.” Intl. Shoe Co. v. State of Wash.,
Off. of Unempl. Compen. and Placement, 326 U.S. 310, 316 (1945) (internal quotation marks
omitted).
A nonresident is required to have “purposefully avail[ed]” him or herself of the privilege
of acting in the forum. The proper focus is on the “affiliation between the forum and the underlying
controversy” and “not the foreign defendant’s relationship with an in forum plaintiff.” Power
Investments, 927 F.3d at 917-18 (6th Cir. 2019) (citing Miller v. AXA Winterthur Ins. Co., 694
F.3d 675, 679 (6th Cir. 2012) and Walden v. Fiore, 571 U.S. 277, 286 (2014)).
1. Ohio Long Arm Statute

Bertec argues that Playground is subject to specific personal jurisdiction pursuant to Ohio’s
long arm statute Oh. Rev. C. 2307.382 sections (A)(4), (A)(6), and (A)(7). Ohio’s long arm statute
provides for specific personal jurisdiction over an out of state defendant in relevant part as follows:
A) A court may exercise personal jurisdiction over a person who acts directly or by
an agent, as to a cause of action arising from the person's:
. . . .
(4) Causing tortious injury in this state by an act or omission outside this state if he
regularly does or solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or consumed or services
rendered in this state;
. . . .
(6) Causing tortious injury in this state to any person by an act outside this state
committed with the purpose of injuring persons, when he might reasonably have
expected that some person would be injured thereby in this state;
(7) Causing tortious injury to any person by a criminal act, any element of which
takes place in this state, which he commits or in the commission of which he is
guilty of complicity.
Oh. Rev. C. 2307.382. Bertec argues that Oh. Rev. C. 2307.382(A)(4) applies because through its
investment in Sparta, “Playground derives substantial revenues from Bertec’s goods and services
rendered in Ohio” since Playground’s development of a knock off force plate for Sparta will
generate revenue and save development and manufacturing costs for Sparta. (ECF No. 36 at 3).
Additionally, Bertec argues that Oh. Rev. C. 2307.382(A)(6) applies because Playground and
Sparta conspired to knock off Bertec’s force plate and used the exclusive dealing Agreement as a
means of obtaining Bertec’s source code to misappropriate Bertec’s confidential information. Id.
at 3-6. Bertec adds that Playground did these acts “reasonably expecting” and “fully intending to
harm Bertec in Ohio” by contacting over 30 vendors who would replace Bertec and supply
Playground with parts for force plates. Id. at 6.
Playground disputes that Oh. Rev. C. 2307.382(A)(4) applies, arguing that it applies only
to individuals or corporations that specifically target the Ohio market with their goods and services.
Other courts construing this provision have determined that 2307.382(A)(4) cannot be the basis
for personal jurisdiction unless the substantial business and revenue is generated in Ohio. See
Lewis v. Horace Mann Ins. Co., 2003-Ohio-5248, ¶ 32 (noting that section (A)(4) of the Ohio long
arm statute requires that the “‘business’ or ‘substantial revenue’ be rendered in Ohio” and
determining that defendant did not derive substantial revenue from goods sold in state where

defendant’s collected a maximum of $12,000 annually from Ohio sales out of a total gross revenue
of between $2-$3 million). Because Playground has not itself engaged in a persistent course of
conduct nor derived substantial revenue from goods used, consumed, or services rendered in the
state, section (A)(4) cannot be relied on to assert personal jurisdiction over Playground. Id. Bertec
is alleging that it sells products in Ohio and that it will no longer be able to sell those products
because Playground has interfered in its contract with Sparta. The fact that Sparta will save money
and that this will in turn increase the revenue that is due to Playground as a result of its investment
in Sparta is of no consequence since the substantial revenue will accrue elsewhere. Bertec has not
alleged that Sparta currently derives substantial revenue from goods used or consumed or services

rendered in Ohio. The relevant inquiry in (A)(4) has to do with whether the substantial revenue is
accrued within the state.
Playground also disputes that Oh. Rev. C. 2307.382(A)(6) applies, arguing that this section
of the statute only confers jurisdiction where it is “clear from the record that defendants’ actions
were taken with the purpose of injuring [the plaintiff].” Playground argues that the evidence
indicates that Bertec that Playground’s actions were taken to lower costs and not to injure Bertec.
(ECF No. 39 at 5) (citing First Fran. Capital Corp. v. Jack in the Box, Inc., 1:17-CV-397, 2017
WL 3269260, at *13 (S.D. Ohio Aug. 1, 2017)). Playground cites to First Fran. Capital Corp. v.
Jack in the Box, Inc. to support its argument that Bertec cannot show that Playground’s actions
were taken with the purpose of injuring Bertec. In First Fran. Capital Corp. v. Jack in the Box,
Inc., however, the Court determined that plaintiff was not able to allege “facts to show the assets
involved here are those of an Ohio corporation given that plaintiff is an Indiana corporation with
its principal place of business in New Jersey.” Id. Here, Bertec is an Ohio corporation and has its
principal place of business in Ohio. It has alleged and brought forward sufficient facts that it was

injured in Ohio by Playground’s efforts to create a force plate prototype for Sparta in order to
reduce Sparta’s operating costs. As the Sixth Circuit has observed, § 2307.382(A)(6) has been
given a “broad approach to its application.” Schneider v. Hardesty, 669 F.3d 693, 700 (6th Cir.
2012). In Schneider, the Court determined that § 2307.382(A)(6) applied to defendant, Utah
attorney Thomas Nelson, where Nelson drafted a letter for a company operating a ponzi scheme.
Nelson alleged that he did not participate in mailing the letter and that he did not know that the
letter would be sent to an Ohio resident. The Appeals Court determined that “[i]t defies logic that
Nelson participated in this transmission but remained ignorant of the investors’ geographic
locations. If true, the only possible explanation is that Nelson intentionally buried his head in the

sand, and that cannot save Nelson from being subject to jurisdiction in Ohio.” Id. at 700–01.
Here, too Playground cannot “bury [its] head in the sand” and escape being subject to
jurisdiction in Ohio by claiming that it did not know that Bertec is an Ohio corporation or that
interfering with the contract between Bertec and Sparta would cause an injury to Bertec in Ohio.
After all, Playground admits that it conducted enough due diligence on Sparta before investing in
the company to determine that Sparta did not then have the ability to make its own force plate and
sourced them from Bertec and others. (ECF No. 44 at 4-5). Playground also admits that it was
aware that it was trying to benchmark its product to Bertec’s and that Sparta provided it with one
of Bertec’s force plates for comparison. Id. at 5-7. All of this demonstrates that Playground was
aware that it was assisting Sparta in creating a product that would replace Bertec’s and allow Sparta
to source its force plate needs internally, instead of pursuant to the Agreement between Sparta and
Bertec. Bertec has demonstrated that 2307.382(A)(6) applies by alleging that Playground’s actions
in California were committed with the purpose and reasonable expectation that Bertec would be
injured (lose sales) in Ohio.1

2. Due Process
In addition to meeting the requirements of the Ohio long arm statute, Bertec must also
satisfy the requirements of due process. To do so, Bertec must show
(1) purposeful availment “of the privilege of acting in the forum state or causing a
consequence in the forum state,” (2) a “cause of action ... aris[ing] from activities”
in the state, and (3) a “substantial enough connection with the forum state to make
the exercise of jurisdiction over the defendant reasonable.”
Schneider v. Hardesty, 669 F.3d 693, 701 (6th Cir. 2012) (citing S. Mach. Co. v. Mohasco
Industries, Inc., 401 F.2d 374, 381 (6th Cir. 1968)).
First, Bertec has shown that Playground has sufficient minimum contacts with Ohio. Two
Supreme Court cases guide this court’s analysis on minimum contacts—Calder v. Jones, 465 U.S.
783 (1984) and Walden v. Fiore, 571 U.S. 277 (2014). In Calder, the Supreme Court determined
that a Florida newspaper and reporter had established sufficient contacts with California by
publishing an article about a California actress in California that relied on California sources. 465
U.S. at 783. In Walden, the Supreme Court determined that a Georgia police officer lacked
sufficient contacts with Nevada where the officer seized a large amount of currency from Nevada
citizens transiting through an Atlanta airport and only knew that the travelers were from Nevada.
571 U.S. at 277. Playground alleges that Walden controls and that Calder is inapplicable here

1 Bertec also alleges that Oh. Rev. C. 2307.382(A)(7) applies. Having found that (A)(6)
applies, this court declines to determine whether the elements of (A)(7) have been met.
because Bertec has not alleged or shown that Playground knew Bertec was an Ohio company.
Recently, the Sixth Circuit considered the applicability of Calder after Walden in the context of a
similar dispute relating to whether an out of state defendant had established minimum contacts
with the forum state, Kentucky, where the defendant had never entered the state. Power
Investments, LLC v. SL EC, LLC, 927 F.3d 914, 919 (6th Cir. 2019). In Power Investments, the

Appeals Court considered the defendant’s electronic activities in determining that the Defendant
had “purposefully availed himself of the privilege of . . . causing a consequence [in Kentucky].”
Id. at 919. (internal quotation marks omitted).
Just as in Power Investments, it is true that Playground never entered Ohio or conducted
business in Ohio. Its actions, however, were directed at disrupting an ongoing business relationship
in Ohio, thus causing a consequence in Ohio. In Walden, the Supreme Court determined that the
claimed injury in Nevada was not “tethered to Nevada in any meaningful way” because the alleged
injury (lacking access to funds in Nevada) had nothing to do with anything independently
occurring in Nevada and was simply “where respondents chose to be at a time when they desired

to use the funds seized by petitioner.” Walden v. Fiore, 571 U.S. 277, 290 (2014).
Unlike in Walden, Playground’s Ohio contacts are not merely fortuitous or solely based on
Playground’s relationship with Bertec, but are instead a product of Playground’s conduct in
allegedly stealing Bertec’s source code to develop a product that would interfere with Bertec’s
contractual agreement with Sparta. Additionally, Playground has stated that it used Bertec’s
software in the benchmarking process. (ECF No. 44) (“To read raw data coming from respective
force plates, Playground’s engineers used . . . Bertec’s free and publically [sic] available
software”). Just as in Power Investments, the “reality that modern business often occurs
electronically . . . . will not defeat personal jurisdiction. . . if the defendant’s efforts are
purposefully directed toward residents of another State.” 927 F.3d at 919 (internal quotation marks
omitted). Further, Playground’s own admissions regarding conducting due diligence on Sparta
undermines its argument that it did not know anything about Sparta’s contract or dealings with
Bertec. (ECF No. 44 at 4-5). Similarly, in Stolle Mach. Co., LLC v. RAM Precision Industries, 605
Fed. Appx. 473, 480 (6th Cir. 2015) the Sixth Circuit determined that the defendant, a former

employee who opened a competing company in China with misappropriated trade secrets,
“necessarily would have had the purpose and reasonable expectation of enhancing his own
business at the expense of Stolle’s business in Ohio.” Without weighing the evidence or deciding
the underlying issues, Playground’s Ohio contacts have been established through evidence that
Playground targeted an Ohio business and used that business’s own data and tools to create a
competing product that would affect an Ohio contract.
3. Arising from
Bertec’s claims against Playground also satisfy the second prong, which requires that the
cause of action arise from Playground’s contacts with Ohio. This prong “is subject to a lenient

standard.” Schneider, 669 F.3d at 703 (6th Cir. 2012). As determined above, Bertec’s claims arise
from Playground’s Ohio connections because Playground used electronic software obtained from
Bertec and allegedly used Bertec’s source code to create a prototype that would interfere with
Sparta and Bertec’s Ohio contract for the supply of force plates.
4. Substantial Connection
Bertec also satisfies the third requirement that Playground have a sufficiently substantial
connection to the forum that the exercise of jurisdiction is not unreasonable. Where the first two
prongs have been established, “an inference of reasonableness arises and only the unusual case
will not meet this third criteria.” Air Products and Controls, Inc. v. Safetech Intern., Inc., 503 F.3d
544, 554 (6th Cir. 2007) (citing Theunissen v. Matthews, 935 F.2d 1454, 1461 (6th Cir.1991))
(internal quotation marks omitted).
In deciding this element, courts consider the following factors: “(1) the burden on the
defendant; (2) the interest of the forum state; (3) the plaintiff's interest in obtaining relief; and (4)
other states’ interest in securing the most efficient resolution of the policy.” Air Products and

Controls, Inc. v. Safetech Intern., Inc., 503 F.3d 544, 554–55 (6th Cir. 2007) (citing Intera Corp.
v. Henderson, 428 F.3d 605, 618 (6th Cir.2005)).
The first factor weighs against personal jurisdiction because Playground is based in
California and defending this case in Ohio would pose a burden on it. This burden alone, however,
does not overcome the “inference of reasonableness” that attaches when a plaintiff demonstrates
purposeful availment and that the cause of action arises from the state connections. Schneider v.
Hardesty, 669 F.3d 693, 704 (6th Cir. 2012) (“While defending this matter in Ohio imposes a
burden on [defendant], we cannot conclude that this burden creates an ‘unusual case’ where the
‘inference of reasonableness’ should be abandoned.”); Intera Corp. v. Henderson, 428 F.3d 605,

618 (6th Cir. 2005) (“[W]e have deemed specific jurisdiction to be proper even when a defendant
would be compelled to travel.”).
The second factor weighs in favor of personal jurisdiction because Ohio has an interest in
addressing injuries to its citizens. Schneider, 669 F.3d at 704 (6th Cir. 2012) (“Ohio has an interest
in ensuring that its residents have adequate recourse for harms inflicted by nonresidents…”); Air
Products and Controls, Inc. v. Safetech Intern., Inc., 503 F.3d 544, 555 (6th Cir. 2007) (“Michigan
clearly has an interest in protecting a company whose principal place of business is located in
Michigan.”).
The third factor also weighs in favor of personal jurisdiction because Bertec has an interest
in obtaining relief preventing Playground from further using its source code. (ECF No. 36 at 13).
Finally, the fourth factor is neutral because even though a California court has an interest
in adjudicating the matter, it would be inefficient for a court there to entertain a parallel proceeding
for the same set of claims against only one of the defendants. Conn v. Zakharov, 667 F.3d 705,

721 n.8 (6th Cir. 2012) (noting that in deciding reasonableness, it is proper to consider which state
would be the most efficient forum for resolution of the dispute, “what forum's substantive law
governs the case, and whether jurisdiction is necessary to prevent piecemeal litigation”). Here,
Ohio law governs the contract between Sparta and Bertec,2 this Court has personal jurisdiction
over Sparta, and it would be most efficient to adjudicate the entire matter in Ohio. Because
Playground has not brought forward any considerations that would overcome the strong inference
of reasonableness, the exercise of jurisdiction over Playground is reasonable and comports with
due process.
B. Failure to State a Claim

Playground also argues that this Court should dismiss Bertec’s complaint for failure to state
a claim upon which relief may be granted for two reasons. First, Playground argues that the state
and federal trade secret claims should be dismissed because Bertec has not defined the alleged
trade secrets. (ECF No. 27 at 13-17). Second, Playground argues that Bertec’s tortious interference
claims are preempted by the trade secret allegations and do not allege Playground’s intent to
interfere. Id. at 18-21.
1. Trade Secret Claims

2 ECF No. 1-1 at 28.
The federal Defend Trade Secrets Act 18 U.S.C. § 1836 requires a plaintiff to show “(1)
the existence of a protectable trade secret; and (2) misappropriation of the trade secret by
defendant.” PPS Serv. Group, LLC v. Eckert, 1:18-CV-727, 2019 WL 3927232, at *3 (S.D. Ohio
Aug. 20, 2019). To state a claim for a violation of the Ohio Uniform Trade Secret Act (“OUTSA”)
a plaintiff must allege “(1) the existence of a trade secret; (2) the acquisition of a trade secret as a

result of a confidential relationship; and (3) the unauthorized use of a trade secret.” Heartland
Home Fin., Inc. v. Allied Home Mortg. Capital Corp., 258 Fed.Appx. 860, 861 (6th Cir. 2008).
Playground argues that Bertec’s trade secret claims should be dismissed because Bertec
does not define the trade secrets at issue. The Supreme Court of Ohio has set out a six-factor test
for assessing whether a plaintiff has shown that its information is a trade secret:
(1) The extent to which the information is known outside the business; (2) the extent
to which it is known to those inside the business, i.e., by the employees; (3) the
precautions taken by the holder of the trade secret to guard the secrecy of the
information; (4) the savings effected and the value to the holder in having the
information as against competitors; (5) the amount of effort or money expended in
obtaining and developing the information; and (6) the amount of time and expense
it would take for others to acquire and duplicate the information.
State ex rel. The Plain Dealer v. Ohio Dept. of Ins., 687 N.E.2d 661, 672 (Ohio 1997).
Plaintiffs rely on this Court’s decision in Murray Energy Holdings Co. v. Bloomberg, L.P., 2:15-
CV-2845, 2016 WL 3355456, at *7 (S.D. Ohio June 17, 2016) to argue that dismissal is warranted.
In Murray, this Court determined that dismissal was appropriate because Plaintiff failed to allege
facts showing that their alleged trade secrete has economic value from not being known and
because the Plaintiffs did not make efforts to maintain the secrecy of their alleged trade secret. In
Murray, the plaintiffs defined their trade secrets broadly as “confidential and proprietary business
information, business plans, financial information, and trade secrets, including, without limitation,
their actual and projected adjusted EBITDA, capex, production, sales volume, cost of sales, price
realizations, liquidity, and/or cash reserves.” Id. at *8. Here, however, Bertec has defined its trade
secrets with much more specificity. Bertec’s complaint alleges that its trade secret is “technical
knowledge and software,” essentially source code, that is used to “analyze and process the data”
generated “when a user jumps on a force plate.” (ECF No. 1 at 4).
Also, the Murray plaintiffs’ information was routinely disclosed outside the business to
prospective investors without requiring them to sign a confidentiality agreement and thus did not

have any “independent economic value...from not being generally known to . . . . other persons
who can obtain economic value from its disclosure or use.” Id. at *9. Here, Bertec outlined the
measures it has taken to protect its confidential information including limiting access to its
facilities, password protecting its files and computers, limiting access to the source code to only
two of its own employees, maintaining the source code in a secure storage system, requiring its
own employees to sign non-disclosure agreements, as well as not sharing the source code with
those outside the business without a confidentiality agreement. (ECF No. 1 at 5, 7). In the
complaint, Bertec also alleges that its source code is valuable to its buyers, including Sparta and
that Sparta entered into a lucrative deal with Bertec in order to gain access to its source code. Id.

at 7-9. Bertec also alleges that it has invested “time, energy, and capital” in “researching,
developing, and implementing” its source code. Id. at 18. Bertec’s allegations in the complaint
sufficiently state the existence of a trade secret.
Playground also argues that Bertec has not alleged how Playground has misappropriated
Bertec’s trade secrets because Bertec does not specify whether Playground “acquired the purported
trade secrets through improper means or . . . disclosed or used the trade secrets with knowledge
that Sparta acquired them through improper means.” (ECF No. 27 at 16-17). Bertec’s complaint,
however, alleges that Bertec established a confidential relationship with Sparta by negotiating and
signing an agreement whereby it agreed to disclose its source code so long as Sparta kept the
source code protected. (ECF No. 1 at 7-9, 11). Bertec also alleges that “[g]iven Sparta and
Playground’s close relationship, as well as Playground’s insistence that Sparta use Playground’s
network of engineers and manufacturers it is likely that Sparta has shared the Confidential
Information with Playground to create the force plates.” Id. at 11
Dismissal is appropriate where a plaintiff fails to articulate a theory of trade

misappropriation and makes only “naked assertions” devoid of “factual enhancement.” Exal Corp.
v. Roeslein & Associates, Inc., 4:12CV1830, 2013 WL 6843022, at *5 (N.D. Ohio Dec. 27, 2013)
(determining that plaintiff failed to state a claim for misappropriation based on actual use of the
trade secret where the “the balance of the allegations regarding misappropriation of trade secrets
refer to future use only and do not support actual use.”). That is not the case here, since Bertec has
claimed that Playground and Sparta misappropriated Bertec’s source code by Sparta’s sharing the
source code with Playground and by Playground’s use of the source code to create a knock off
force plate. Thus, Bertec has pleaded a claim for misappropriation of trade secrets properly.
2. Tortious Interference Claims

Playground argues that Bertec’s tortious interference claims should be dismissed because
the claims are preempted by the OUTSA and Bertec has failed to plead the requisite elements
properly.
First, OUTSA does preempt conflicting “tort, restitutionary, and other laws” that provide
“civil remedies for misappropriation of a trade secret.” Ohio Rev. Code § 1333.67(A). The Sixth
Circuit has determined that the “test to determine whether a state law claim is displaced by OUTSA
is to determine whether the claims are no more than a restatement of the same operative facts that
formed the basis of the plaintiff's statutory claim for trade secret misappropriation.” Stolle Mach.
Co., LLC v. RAM Precision Industries, 605 Fed. Appx. 473, 485 (6th Cir. 2015) (internal quotation
marks omitted). Plaintiffs are, however, permitted to plead claims in the alternative, and a court
may not dismiss claims as preempted until the parties have had a chance to develop the facts during
discovery to assess whether “facts different from those comprising the misappropriation claim
support the state common law state claims.” Thermodyn Corp. v. 3M Co., 593 F. Supp. 2d 972,
990 (N.D. Ohio 2008). Because it is unclear whether further discovery would enable Bertec to

base its tortious interference claims on facts different from those alleged in its trade secret claim,
dismissal is inappropriate at this juncture. Id.
Second, Bertec has properly pleaded the required elements of a tortious interference claim.
A claim for tortious interference requires a Plaintiff to show: “(1) the existence of a contract, (2)
the wrongdoer's knowledge of the contract, (3) the wrongdoer's intentional procurement of the
contract's breach, (4) the lack of justification, and (5) resulting damages.” Fred Siegel Co., L.P.A.
v. Arter & Hadden, 707 N.E.2d 853, 858 (Ohio 1999). Playground argues that Bertec has failed to
show that that Playground had knowledge of the agreement between Sparta and Bertec, despite
Bertec’s “conclusory” allegation that “Playground was or should have been aware” of the

agreement. (ECF No. 27 at 18).
While Bertec’s allegation that “Playground was or should have been aware” of the contract
between Sparta and Bertec is insufficient on its own to satisfy the second prong, Bertec has also
alleged that Playground had actual knowledge by claiming that as an investor in Sparta,
Playground exerted control over Sparta’s operations and directed it to breach the contract in an
effort to save money. (ECF No. 1 at 10). Playground also disputes that Bertec has alleged
sufficiently the third and fourth elements of a tortious interference claim. (ECF No. 27 at 9).
To prove “wrongful procurement” and “lack of justification, the plaintiff must show that
the defendant's interference with another’s contract was improper.” Bridge v. Park Nat. Bank, 10th
Dist. Franklin No. 03AP-380, 2003-Ohio-6932, ¶ 6-7 (determining that plaintiff sufficiently stated
tortious interference claim where plaintiff alleged defendant had interfered “with full knowledge
[of the existence] of the contract between [defendant] and the owner of the premises for fire
restoration, with the intent of harassing, annoying and causing unnecessary delays in [defendant’s]
timely performance under the terms of the contact [sic], . . . thereby induc[ing] the owner of the

premises to repudiate and cancel the contract.”). A court determining whether conduct was
improper should give “consideration . . . to, among other things, the nature of the actor’s conduct,
and the actor's motive.” Id. at ¶ 6-7.
Playground argues that Bertec concedes that Playground’s intent was not to harm Bertec
by attaching an email where Sparta’s Vice President indicates that Sparta cannot purchase force
plates because its investor “required us to find a solution where we can get higher volumes of
plates at a significantly lower cost.” (ECF No. 27 at 19). Playground takes issue with Bertec’s
“mischaracterization” of the email from Sparta’s Vice President as suggesting that “Playground
required Sparta to breach the agreement.” Id. In doing so, however, Playground reveals that there

is no deficiency with Bertec’s pleading and concedes that Bertec has stated specific facts for its
allegation that Playground knew of the existence of the contract and directed Sparta to breach it.
Bertec has sufficiently alleged that Playground’s motivating factor was unjustified because in
aiming to cut down Sparta’s costs it consequently aimed to deprive Bertec of the profits of the
Agreement that it had brokered. (ECF No. 1 at 10). Whether or not Bertec will succeed in proving
a lack of justification for interfering is a fact issue to be determined at trial, and not a deficiency
in the pleading.
3. Unjust Enrichment Claim
Finally, Playground argues that Bertec’s unjust enrichment claim should be dismissed as it
is preempted by OUTSA and because Bertec has not alleged that it entered an economic transaction
with Playground. (ECF No. 27 at 20-21). Plaintiff’s unjust enrichment claim is not preempted by
OUTSA for the same reasons discussed above regarding Plaintiff’s tortious interference claims.
See Thermodyn Corp. v. 3M Co., 593 F. Supp. 2d 972, 990 (N.D. Ohio 2008).

Playground argues that Bertec has failed to allege that it “entered into an economic
transaction with Playground” as required to state a claim for unjust enrichment. (ECF No. 27 at
20-21). An unjust enrichment claim exists where “1) a benefit is conferred by a plaintiff on a
defendant; 2) the defendant has knowledge of the benefit; and 3) the defendant retains the benefit
under circumstances where it is unjust to do so.” Randleman v. Fid. Nat. Title Ins. Co., 465 F.
Supp. 2d 812, 824 (N.D. Ohio 2006).
Playground argues that because Bertec’s theory is based on a financial transaction—the
agreement between Sparta and Bertec—Bertec may not rely on the theory of unjust enrichment
articulated in In re Natl. Prescription Opiate Litig., 1:17-MD-2804, 2018 WL 6628898, at *20

(N.D. Ohio Dec. 19, 2018) and must instead show an economic transaction between plaintiff and
defendant in order to establish that the defendant retained a benefit. That is not the case. As
explained in Opiate Litigation, the requirement that there be an economic transaction between
plaintiff and the defendant is limited to situations where plaintiff is an indirect purchaser of
defendant’s good. Id. In those instances, plaintiff is required to show an economic transaction in
order to establish that a benefit was conferred on defendant. Id. In Opiate Litigation, the court
permitted plaintiffs to proceed with unjust enrichment claims based on the theory that plaintiffs
had “conferred a benefit upon Defendants by paying for Defendants’ externalities: the cost of the
harms caused by Defendants’ improper distribution practices.” Id. at *21. Here, Bertec is the
creator and not the purchaser of the benefit that has been conferred. Because Bertec alleges that
Playground is deriving a benefit from the use of its confidential information—a benefit that
Playground has not paid for—Bertec has stated a claim for unjust enrichment.
IV. CONCLUSION
For the reasons stated herein, this Court DENIES Playground’s motion to dismiss for lack
of personal jurisdiction or failure to state a claim upon which relief may be granted.

IT ISSO ORDERED.

sss L. ME,
CHIEF U} ATES DISTRICT JUDGE
DATE: May 4, 2020

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375416. Public record. Not legal advice.