International Petroleum Products and Additives Company, Inc. v. PXL Chemicals BV

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

INTERNATIONAL PETROLEUM :

PRODUCTS AND ADDITIVES :

COMPANY, INC., :

:

Plaintiff, : Case No. 1:20-cv-00586

:

v. : Chief Judge Algenon L. Marbley

:

PXL CHEMICALS BV, et al., :

:

Defendants. :

OPINION & ORDER

This matter is before the Court on numerous motions from multiple parties, including

Motions to Dismiss from Defendants PXL Chemicals BV and PXL Chemicals LLC (ECF No. 14)

and from Defendant Lorenzo Napoleoni (ECF No. 22). This Court also entertains Plaintiff’s

Motion for Leave to File Sur-Reply to PXL Defendants’ Reply Brief (ECF No. 24), Motion for

Leave to File Sur-Reply to Mr. Napoleoni’s Reply Brief (ECF No. 28), and Motion for Leave to

File Supplemental Memoranda (ECF No. 31), as well as Defendants’ Motion for Sanctions (ECF

No. 33). For the reasons set forth below, Defendants’ motions to dismiss (ECF Nos. 14, 22) are

DENIED. Plaintiff’s motions for leave to file sur-replies (ECF Nos. 24, 28) and Defendants’

Motion for Sanctions (ECF No. 33) are also DENIED. Plaintiff’s Motion for Leave to File

Supplemental Memoranda (ECF No. 31) is GRANTED.

I. BACKGROUND

A. Factual Background

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Plaintiff International Petroleum Products and Additives Company, Inc. (“IPAC”), a

petroleum additive manufacturer, alleges that Defendants, through their various connections and

relationships to each other, have together engaged in misconduct regarding IPAC’s trade secrets

to produce and sell knock-offs of IPAC’s products to IPAC customers.

According to Plaintiff, the problem arose initially from sales representative and distributor

agreements that IPAC signed with Black Gold S.A.R.L. (“Black Gold”) of Monaco, which is

operated and owned in part by Defendant Lorenzo Napoleoni. (ECF No. 1 ¶¶ 2–3). Mr. Napoleoni

is a resident of Monaco. (ECF No. 22 at 4). The company has no other employees and is entirely

owned by Mr. Napoleoni and his wife. (ECF No. 1 ¶ 3). Pursuant to the agreements, Black Gold

agreed to be a sales representative and distributor for IPAC. (Id. ¶ 2). Black Gold received IPAC’s

confidential information regarding products, customer lists, financial terms, research,

development, and manufacturing, including the identities of IPAC’s direct and indirect customers,

and the quantity and pricing of products purchased by those customers. (Id. ¶¶ 2, 4, 11; ECF No.

1-1 at 5).1 The Sales Representative Agreement required Black Gold to keep confidential all

information received from Black Gold about information about sales, customers, products, pricing,

and other information for five years after the end of the agreement. (ECF No. 1-1 at 11). The

1 ECF No. 1-1 consists of an arbitration award, Int’l Petrol. Prods. and Additives Co., Inc. v. Black Gold

S.A.R.L., AAA Case No. 01-18-0001-9728 (2019) (Dosker, Arb.), attached as an exhibit to Plaintiff’s Complaint. The

arbitration proceeding was held between Plaintiff and Mr. Napoleoni’s company, Black Gold S.A.R.L. The arbitration

findings were confirmed over the objections of the defendant in that proceeding. See Int’l Petrol. Prods. and Additives

Co., Inc. v. Black Gold S.A.R.L., 418 F. Supp. 3d 481 (N.D. Cal. 2019). Defendants dispute the relevance of the

exhibit to this case, suggesting that the arbitration “decision is legally irrelevant,” that they are not bound by the

arbitration, and that the arbitrator either failed to analyze or failed to provide factual proof for several issues —

including whether the PXL Defendants were a unitary business and whether IPAC had trade secrets that were

misappropriated and used by the PXL Defendants. (See generally ECF No. 23 at 2–3). Courts are permitted to

consider exhibits attached to the complaint in considering motions to dismiss. See Bassett v. Nat’l Collegiate Athletic

Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). Accordingly, this Court considers the arbitration award as part of Plaintiff’s

factual allegations.

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Exclusive Distributor Agreement had no time duration and thus apparently required confidentiality

indefinitely. (ECF No. 1-1 at 12–13). Black Gold also agreed not to provide service or assistance

to competitors regarding competing products. (ECF No. 1 ¶ 2). Beyond requiring confidentiality

and non-disclosure agreements, IPAC also sought to protect its confidential information by placing

password protection on documents, limiting access to information, and keeping information in

locked offices. (Id. ¶ 63).

During the period covered by the sales representative and distributor agreements, Mr.

Napoleoni floated the idea of forming a competing additives business with Mr. Steven Plitt and

Dr. Jeffrey Crow, both employees of IPAC. (Id. ¶¶ 5–6; ECF No. 1-1 at 14). Despite Dr. Crow’s

concerns that the formation of such a business would be difficult without using IPAC’s

confidential information, Mr. Napoleoni and Mr. Plitt proceeded anyway. (ECF No. 1-1 at 14).

Prior to Mr. Plitt’s departure from IPAC in August 2016, he emailed to himself information about

IPAC’s business, including a password-protected spreadsheet with information about the identity,

vendor, price, and composition for each component of IPAC products. (ECF No. 1 ¶ 8; ECF No.

1-1 at 5). Mr. Plitt did not have a legitimate IPAC business reason for doing so, nor was this in

keeping with his standard work practice: typically, if he needed to use confidential IPAC

information, he would access that information via Citrix on IPAC’s computer systems, rather than

forwarding information to himself. (ECF No. 1-1 at 14, 20). Mr. Plitt then used anti-forensic

software to wipe his work laptop twice, in July and August 2016. (ECF No. 1 ¶ 9).

On January 10, 2017, Mr. Plitt formed PXL Chemicals LLC (“PXL LLC”), based in

Loveland, Ohio, and incorporated in Ohio. (Id. ¶¶ 12–14, 37). Mr. Plitt along with Defendant Mr.

Napoleoni then founded PXL Chemicals BV (“PXL BV”) in the Netherlands on July 31, 2007.

(ECF No. 1-1 at 14–15). Both Mr. Napoleoni and PXL LLC are shareholders of PXL BV, while

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Mr. Plitt and either Michael Bryne Plitt or Steven Andrew Plitt, Steven Plitt’s sons, are the co-

owners of PXL LLC. (ECF No. 1 ¶¶ 12, 14, 16, 19). Defendant Mr. Napoleoni, on the other hand,

does not have a direct ownership connection with PXL LLC but worked with Mr. Plitt, who is an

Ohio resident, to form the two PXL companies. (See id. ¶ 45).

PXL Chemicals LLC and PX Chemicals BV were, according to Plaintiff’s allegations,

effectively the same company. (Id. ¶ 17). The website for www.pxlchemicals.com listed Mr. Plitt

as “Founder / CEO” and Mr. Napoleoni as “Founder / COO” and included both an Ohio address

and an international address in the Netherlands. (Id.). At first, Mr. Plitt told Plaintiff that he had

formed PXL with his son as a “consultant company.” (ECF No. 1-1 at 10). But within months of

formation, PXL held itself out as a “next general chemical and additive company” and marketed

several additive products that competed against IPAC’s products. (ECF No. 1 ¶¶ 18, 21, 23). PXL

was able to develop these competing additives in a short time frame, despite having no test

facilities, no formulation capability, no blending or other technical expertise, and no chemists. (Id.

¶ 21). Language on the PXL Chemicals website attributed the company’s additive product

innovation to Mr. Plitt’s knowledge, though he did not have any experience developing or

formulating additive products during his time at IPAC. (Id. ¶ 18).

PXL Chemical’s lubricative additive products were found to be “strikingly similar” to

IPAC’s corresponding products and IPAC customers reported that “PXL tells its customers that

the [PXL] products are safe to use because they are knock offs of IPAC’s formulations.” (Id. ¶¶

22, 25; ECF No. 1-1 at 16, 18). Through Mr. Napoleoni, PXL Chemicals gained confidential

IPAC information about customers and pricing, which IPAC had given to Mr. Napoleoni’s

distribution company Black Gold pursuant to their sales and distribution agreements, and then used

that information to sell its products to IPAC customers. (ECF No. 1 ¶¶ 23, 65). In the wake of

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PXL developing additive products in competition with IPAC and marketing those products to

IPAC customers, IPAC sales have declined. (Id. ¶ 24). PXL BV products continue to enter the

US market through PF5, an Ohio consulting firm founded by Mr. Plitt and headquartered at the

former Ohio address of PXL LLC. (See ECF Nos. 14-1 ¶¶ 10, 12; 19 at 4).

In February 2018, Black Gold indicated to IPAC that it wished to terminate its sales

representative and distribution contracts. (ECF No. 1-1 at 6). The original distribution agreements

between IPAC and Black Gold stipulated that, when the agreements ended, the latter was required

to “cooperate with IPAC, to surrender all records to IPAC, and to do whatever is reasonably

required by IPAC in order to continue a viable business with IPAC the customers served by the

distributor.” (ECF No. 1-1 at 12). Additionally, all IPAC documents in the possession of Black

Gold were required to “be promptly and safely returned to IPAC.” (Id. at 10 (quoting from Section

8 of the Sales Representative Agreement)). Black Gold did not, however, return IPAC’s

documents after the end of their relationship. (Id. at 17). In fact, Black Gold retained possession

of several hundred IPAC documents, including customers lists, price lists, and information about

products, processes, services, research and development, inventions, etc. (Id. at 17–18). When

asked during arbitration how PXL could develop additive products so quickly after being formed,

Defendant Mr. Napoleoni testified that “[he] had it,” referring to those unreturned IPAC

documents. (Id. at 19).

IPAC then sought an injunction against Black Gold, Defendant Mr. Napoleoni, and his

wife, Ms. Sofia Napoleoni, in the U.S. District Court for the Northern District of California. (See

ECF No. 1 ¶ 27; see generally ECF No. 1-1). The arbitrator found that Black Gold had breached

its Sales Representative Agreement and its Exclusive Distributor Agreement with IPAC. (ECF

No. 1-1 at 22). More specifically, the arbitrator found that Defendant Mr. Napoleoni, the co-owner

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and operator of Black Gold, had “caused IPAC Confidential Information to be misappropriated

and misused to formulate and make and market and sell PXL products.” (Id. at 21). Consequently,

the arbitrator enjoined Black Gold and anyone working in concert with Black Gold from using,

disclosing, or possessing IPAC’s confidential information, and from making, marketing, or selling

products formulated based on IPAC’s confidential information. (Id. at 37). The injunction and

award were confirmed by the district court. (See ECF No. 1-2).

The aftermath of that award is still awaiting full resolution. IPAC sought to collect the

arbitration award of $1,094,193.58 from Black Gold in both Monaco and the United States but to

no avail. In May 2020, Black Gold commenced insolvency proceedings in Monagesque court,

which set May 29, 2019, as the date of Black Gold’s “cessation of payments” or insolvency date.2

See In re Black Gold S.A.R.L., 635 B.R. 517, 522 (B.A.P. 9th Cir. 2022). In November 2020, Mr.

Jean-Paul Samba, who was appointed trustee by the Monagesque bankruptcy proceeding, filed for

recognition of the Monagesque proceeding in California bankruptcy court and for chapter 15

bankruptcy as the foreign representative of Black Gold. See id. at 523. The bankruptcy court

initially denied recognition of the Monagesque bankruptcy proceeding as contrary to U.S. public

policy, see but the decision was overturned earlier this year by the Bankruptcy Appellate Panel of

the Ninth Circuit. See generally id.

B. Procedural Background

Plaintiff filed the complaint in this action on July 29, 2020, pursuing damages for trade

secret misappropriation and other alleged misconduct, and injunctions against all Defendants.

(ECF No. 1). Plaintiff named PXL BV, PXL LLC, Mr. Napoleoni, and DOES 1–5 as Defendants.

2 Coincidentally, May 29, 2019, is also the date that the arbitration award against Black Gold was confirmed.

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The DOES are not identified; Plaintiff pinpoints an adult son of Mr. Steven Plitt, either Bryce Plitt

or Steven Andrew Plitt, as one of the DOES and an unknown subsidiary of PXL Chemicals LLC

as another of the DOES. (Id. ¶¶ 55–56). In September 2020, Defendants PXL BV and PXL LLC

(collectively “PXL” or “the PXL Defendants”) submitted a motion to dismiss (ECF No. 14). In

November 2020, Defendant Mr. Napoleoni submitted a separate motion to dismiss (ECF No. 22).

In addition to the dispositive motions, three other related motions are before this Court. Plaintiff

has submitted two motions for leave to file sur-replies (ECF Nos. 24, 28) in response to

Defendants’ replies (ECF Nos. 23, 27) to Plaintiff’s responses in opposition to the motions to

dismiss (ECF Nos. 19, 25); Plaintiff also requests leave to file further documents beyond their sur-

replies in support of those sur-reply briefs (ECF No. 31). Defendants have submitted a motion for

sanctions (ECF No. 33). In June 2022, this case was transferred from Judge Black to the docket

of Chief Judge Marbley. (See ECF No. 37). All motions are ripe for this Court’s review.

II. STANDARD OF REVIEW

Defendants move to dismiss for lack of personal jurisdiction under Federal Rule of Civil

Procedure 12(b)(2), for improper venue under Federal Rule of Civil Procedure Rule 12(b)(3), and

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

A. Personal Jurisdiction

A federal court sitting in diversity 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). A court can exercise two types of personal jurisdiction: “specific

jurisdiction, which is confined to adjudication of issues deriving from, or connected with, the very

controversy that establishes jurisdiction, and general, all-purpose jurisdiction.” Carrier Corp. v.

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Outokumpu Oyj, 673 F.3d 430, 449 (6th Cir. 2012) (internal quotations omitted) (quoting Indah v.

U.S. Sec. & Exchange Comm’n, 661 F.3d 914, 920 (6th Cir. 2011)).

When the court’s exercise of jurisdiction is challenged in a motion to dismiss, “the plaintiff

may not stand on his pleading but must, by affidavit or otherwise, set forth specific facts showing

that the court has jurisdiction.” Id. at 449 (quoting Theunissen v. Matthews, 935 F.2d 1454, 1458

(6th Cir. 1991)). In determining whether plaintiff has met its burden, the district court “may decide

the motion upon the affidavits alone; it may permit discovery in aid of deciding the motion; or it

may conduct an evidentiary hearing to resolve any apparent factual questions.” Theunissen, 935

F.2d at 1458. If the district court chooses to rely solely on the pleadings and affidavits, it must

consider such materials “in a light most favorable to the plaintiff[s]” and must not “weigh ‘the

controverting assertions of the party seeking dismissal.’” MAG IAS Holdings, Inc. v. Schmückle,

854 F.3d 894, 899 (6th Cir. 2017) (quoting Theunissen, 935 F.2d at 1459). And, in such cases,

“the plaintiff need only make a ‘prima facie’ case that the court has personal jurisdiction.” Conn

v. Zakharov, 667 F.3d 705, 711 (6th Cir. 2012) (citing Kroger Co. v. Malease Foods Corp., 437

F.3d 506, 510 (6th Cir. 2006)). Thus, the motion to dismiss should be denied if the plaintiff sets

forth “specific facts that support a finding of jurisdiction.” Kroger Co., 437 F.3d at 510. Although

“this [C]ourt will not consider facts proffered by the defendant that conflict with those offered by

the plaintiff,” Neogen Corp., 282 F.3d at 887 (citing Serras v. First Tenn. Bank Nat’l Ass’n, 875

F.2d 1212, 1214 (6th Cir. 1989)), it “may consider the defendant’s undisputed factual assertions.”

Conn, 667 F.3d at 711.

B. Venue

Under Federal Rules of Civil Procedure 12(b)(3), a party may move for dismissal of a case

for improper venue. Venue is proper under 28 U.S.C. § 1391(b) in: (1) any district in which the

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defendant resides, if all defendants are residents of the state; (2) a district “in which a substantial

part of the events or omissions giving rise to the claim occurred, or a substantial part of property

that is the subject of the action is situated;” or (3) if there is no other district where the action may

be brought so long as the court has personal jurisdiction over the defendant. “The Plaintiff’s

burden at this stage is to make a prima facie showing that venue is proper.” Ackison Surveying,

LLC v. Focus Fiber Sols., LLC, 2016 WL 1449456, at *2 (S.D. Ohio 2016) (internal citations

omitted). In evaluating the motion to dismiss, a court can decide on the basis of affidavits alone

or conduct an evidentiary hearing. See Serras, 875 F.2d at 1214 (6th Cir. 1989). But if a court

decides on the motion without a hearing, it “must consider the pleadings and affidavits in the light

most favorable to the plaintiff.” Centerville ALF, Inc. v. Balanced Care Corp., 197 F. Supp. 2d

1039, 1046 (S.D. Ohio 2002) (quoting Welsh v. Gibbs, 631 F.2d 436, 439 (6th Cir. 1980). Finally,

a plaintiff’s burden extends to showing that venue is “proper for each claim and as to each

defendant in order for the court to retain the action.” Verbis v. Iowa Dep’t of Hum. Servs., 18 F.

Supp. 2d 770, 774 (W.D. Mich. 1998) (internal citations omitted).

C. Failure to State a Claim

A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) operates to test

the sufficiency of the complaint and permits dismissal of a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 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). Accordingly,

the Court must “construe the complaint in the light most favorable to the plaintiff, accept its

allegations as true, and draw all reasonable inferences in favor the plaintiff.” In re Travel Agent

Comm’n Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (quoting Jones v. City of Cincinnati,

9

521 F.3d 555, 559 (6th Cir. 2008)). Although the court’s primary focus will be on the allegations

in the complaint, the court may also consider “any exhibits attached thereto, public records, items

appearing in the record of the case and exhibits attached to the defendant’s motion so long as they

are referred to in the Complaint and are central to the claims contained therein.” Bassett v. Nat’l

Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).

To survive a motion to dismiss, “the plaintiff must allege facts that, if accepted as true, are

sufficient to raise a right to relief above the speculative level and to state a claim to relief that is

plausible on its face.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (internal

quotations omitted) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

considered plausible on its face “when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). And though the court “must accept all well-pleaded

factual allegations in the complaint as true,” the court “need not accept as true a legal conclusion

couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555) (internal quotations

omitted).

III. LAW & ANALYSIS

A. Preliminary Matters

If IPAC were granted leave to file sur-replies, the contents of the sur-replies would be

before the Court for consideration when ruling on the motions to dismiss. Thus, as a preliminary

matter, this Court first addresses Plaintiff IPAC’s Motion for Leave to File Sur-Reply Brief in

Response to PXL Defendants’ Reply Brief Dated Nov. 19, 2020 (ECF No. 24) and Motion for

Leave to File Sur-Reply Brief in Response to Mr. Napoleoni’s Reply Brief Dated Dec. 17, 2020

(ECF No. 28). This Court also considers whether to grant Plaintiff’s Motion for Leave to File

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Supplemental Memoranda (ECF No. 31), which the Court construes as a further sur-reply given

Plaintiff’s representation that the motion is intended “to supplement its previously submitted sur-

reply briefs.” (ECF No. 31 at 1). IPAC argues that the Sur-Reply Briefs are necessary because

both the PXL Defendants and Defendant Mr. Napoleoni “have raised various new arguments and

assertions for the first time” in their reply briefs. (ECF Nos. 24 at 1, 28 at 2). Specifically, IPAC

contends that the PXL Defendants objected to the Arbitration Award attached to Plaintiff’s

Complaint for the first time in their reply brief (ECF No. 23). (See ECF No. 24 at 1). IPAC

suggests that the same is true with respect to Defendant Mr. Napoleoni’s reply brief (ECF No. 27),

and further that Mr. Napoleoni raised arguments about Black Gold’s bankruptcy proceeding —

and attached a thirty-seven (37) page document about that proceeding — for the first time in his

reply brief. (ECF No. 28 at 2).

The Federal Rules of Civil Procedure do not contemplate the filing of sur-replies. This

Court’s Local Civil Rules permit additional memoranda only “upon leave of court for good cause

shown.” S.D. Ohio Civ. R. 7.2(a)(2). While the Rules do not define good cause, the Sixth Circuit

has noted that additional filings “may be allowed in the appropriate circumstances, especially

‘[w]hen new submissions and/or arguments are included in a reply brief, and a non-movant’s

ability to respond to the new evidence has been vitiated.’” Key v. Shelby Cnty., 551 F. App’x 262,

265 (6th Cir. 2014) (quoting Seay v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003)).

Similarly, “this Court has consistently held that in order for a party to be given permission to file

a sur-reply, the reply brief must raise new grounds that were not presented as part of the movant’s

initial motion.” Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2010 WL 4117552, at *4

(S.D. Ohio Oct. 19, 2010) (citations omitted). In such cases, allowing a sur-reply is justified

because considering “arguments raised for the first time in a reply brief . . . deprives the [opposing]

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party of its opportunity to address the new arguments.” Cooper v. Shelby Cnty., Tenn., 2010 WL

3211677, at *3 n.14 (W.D. Tenn. Aug. 10, 2010) (“arguments raised for the first time in a reply

brief are generally not considered because such a practice deprives the non-moving party of its

opportunity to address the new arguments”); cf. Overstreet v. Lexington-Fayette Urb. Cnty. Gov’t,

305 F.3d 566, 578 (6th Cir. 2002) (noting that “[a]n argument raised for the first time in reply brief

will not be considered by this Court” (citing Wright v. Holbrook, 794 F.2d 1152, 1156 (6th Cir.

1986))). But a counterpoint raised in a reply brief in response to an argument made in the non-

movant’s response brief does not constitute a new argument warranting sur-reply. See Liberty

Legal Found. v. Nat’l Democratic Party of the USA, Inc., 875 F. Supp. 2d 791, 798 (W.D. Tenn.

2012).

Ultimately, this Court has “broad discretion to manage its docket” in determining whether

a movant has shown good cause. ACLU of Kentucky v. McCreary Cnty., 607 F.3d 439, 451 (6th

Cir. 2010) (citing Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)). Courts in the Southern

District may permit a party to file a sur-reply even without showing good cause if it does not result

in prejudice toward the opposing party. See Nat’l City Bank v. Aronson, 474 F. Supp. 2d 925, 930

(S.D. Ohio 2007). Moreover, the Sixth Circuit has a “strong preference that claims be adjudicated

on their merits.” Coleman v. Shoney’s, Inc., 79 F. App’x 155, 157 (6th Cir. 2003) (citing Jourdan

v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). Any evidence used to support a sur-reply that is

deemed permissible must, however, “be limited to that needed to rebut the positions argued in

memoranda in opposition.” S.D. Ohio Civ. R. 7.2(d).

This Court finds that IPAC has failed to show good cause with respect to its first two

motions to file sur-replies (ECF Nos. 24, 28). IPAC suggests that the PXL Defendants and

Defendant Mr. Napoleoni discuss the Arbitration Agreement in their Reply Briefs (ECF Nos. 23,

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27) for the first time, whereas the Opening Briefs (ECF Nos. 14, 22) were silent on the issue. It is

true that the PXL Defendants’ Motion to Dismiss (ECF No. 14) does not mention the Arbitration

Agreement at all and Defendant Mr. Napoleoni’s Motion to Dismiss (ECF No. 22) does so only

briefly. (See ECF No. 22 at 1 (mentioning the “arbitration award” twice in the Introduction but no

further instances in the Argument)). It is also true that both Reply Briefs mention the Arbitration

Agreement extensively. (See ECF Nos. 23 at 2–4, 27 at 2–5). The Reply Briefs’ discussion of the

Arbitration Agreement, however, is dedicated entirely to countering arguments made by Plaintiff

in their replies to the motions to dismiss and not at all to proposing new legal arguments or

presenting new evidence. Moreover, Plaintiff spends the entirety of their sur-replies rebutting

arguments already briefed by the parties. For example, questions about the credibility and content

of Mr. Napoleoni’s affidavit have already been discussed by both parties in detail. (See, e.g., ECF

No. 19 at 3–6; ECF No. 23 at 4–5). This Court is fully capable of assessing Mr. Napoleoni’s

affidavit, its content, and its applicability to Defendants’ motions to dismiss without further

briefing; likewise, it can determine whether Plaintiff has “plausibly alleged” the relevant facts

without further briefing.

On the other hand, Plaintiff’s Motion for Leave to File Supplemental Memoranda (ECF

No. 31) alerts the Court to new developments in related proceedings elsewhere. So, too, does

Defendants’ Notice of Supplemental Authority (ECF No. 38). And in both cases, the attached

arbitration decisions do not prejudice the opposing parties and are relevant to this case.

Accordingly, Plaintiff’s motions for leave to file sur-replies (ECF Nos. 24, 28) are

DENIED and the sur-reply briefs are STRICKEN. Plaintiff’s Motion for Leave to File

Supplemental Memoranda (ECF No. 31) is also GRANTED.

B. Motion to Dismiss

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The PXL Defendants and Defendant Mr. Napoleoni both request that this Court dismiss

IPAC’s claims on the basis of lack of personal jurisdiction, improper venue, and failure to state a

claim. This Court considers each basis for dismissal in turn.

1. Personal Jurisdiction

In diversity actions, personal jurisdiction exists only if such jurisdiction is consistent with

both the forum state’s long-arm statute and the Fourteenth Amendment’s Due Process Clause.

Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir. 2000). Here, the forum state is Ohio.

Because “the Ohio Supreme Court has determined that Ohio’s long-arm statute does not extend to

the limits of due process,” Mid-West Materials, Inc. v. Tougher Industries, Inc., 484 F. Supp. 2d

726, 730 (citing Goldstein v. Christiansen, 638 N.E.2d 541, 545 n.1 (Ohio 1994)), this Court must

evaluate both whether the exercise of specific personal jurisdiction is allowed under Ohio’s long-

arm statute and whether it “comports with the constitutional due process requirements of the

United States Constitution.” Retail Serv. Sys., Inc. v. Mattress by Appointment, LLC, 210 F. Supp.

3d 916, 924 (S.D. Ohio 2016) (citing CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.

1996)). “[P]ersonal jurisdiction can exist in two forms: specific jurisdiction and general

jurisdiction.” Indah, 661 F.3d at 921.

Defendant PXL BV argues that this Court does not have personal jurisdiction over it since

it is an out of state company and has no ties to Ohio. (ECF No. 14 at 3–16). Likewise, Defendant

Mr. Napoleoni requests that this Court grant his motion to dismiss on effectively the same basis

— namely, that he is an out-of-state resident with no connections to the state of Ohio. (ECF No.

22 at 4–16). Both defendants alleges that they do not transact any business or maintain minimum

contacts in the state of Ohio.

a. Personal Jurisdiction Over PXL BV

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Courts are authorized to assert general jurisdiction over a foreign corporation where the

corporation’s “affiliations with the State are ‘so continuous and systematic’ as to render them

essentially at home in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 127 (2014)

(quoting Goodyear Dunlop Tire Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). Typically,

a corporation is “at home” in the forums where its principal place of business or place of

incorporation are located. Id. at 139. But there are also “exceptional case[s], . . . [where] a

corporation’s operations in a forum other than its formal place of incorporation or principal place

of business may be so substantial and of such a nature as to render the corporation at home in that

State.” Id. at 139 n.19.

Plaintiff here does not allege that PXL BV has its principal place of business or its place

of incorporation in Ohio, the forum state. Instead, Plaintiff suggests that “PXL USA and PXL BV

have held themselves out as a unitary business with two locations.” (ECF No. 1 ¶ 17). The unitary

business theory is, in effect, another name for the alter-ego theory, which “provides for personal

jurisdiction ‘if the parent company exerts so much control over the subsidiary that the two do not

exist as separate entities but are one and the same for purposes of jurisdiction.’” Indah, 661 F.3d

at 921 (citing Estate of Thomson ex rel. Est. of Rakestraw v. Toyota Motor Corp. Worldwide, 545

F.3d 357, 362 (6th Cir. 2008)); see also State ex rel. DeWine v. S&R Recycling, Inc., 195 Ohio

App. 3d 744, ¶ 27, 2011-Ohio-3371, 961 N.E.2d 1153, 1158–59 (Ohio Ct. App. 2011) (noting the

use of the alter ego theory “as a vehicle to obtain personal jurisdiction over an officer of a

corporation that cannot otherwise be reached in a certain state”). In such cases, “federal courts

have consistently acknowledged that it is compatible with due process for a court to exercise

personal jurisdiction over an individual or a corporation that would not ordinarily be subject to

personal jurisdiction in that court” as long as the related “corporation [] would be subject to

15

personal jurisdiction in that court.” Toyota Motor Corp. Worldwide, 545 F.3d at 362 (quoting

Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640, 653 (5th Cir. 2002)). To determine

whether a company or individual is the alter ego of the parent company,

Ohio courts consider factors such as whether (1) corporate formalities are observed,

(2) corporate records are kept, and (3) the corporation is financially independent.

This Court has considered additional factors such as (1) sharing the same

employees and corporate officers; (2) engaging in the same business enterprise; (3)

having the same address and phone lines; (4) using the same assets; (5) completing

the same jobs; (6) not maintaining separate books, tax returns, and financial

statements; and (7) exerting control over the daily affairs of another corporation.

Id. at 362–63 (internal citations omitted).

Here, it is undisputed that PXL LLC, as an Ohio corporation, is subject to general personal

jurisdiction by this Court. See Daimler AG, 571 U.S. at 118 (“The paradigm all-purpose forums

for general jurisdiction are a corporation’s place of incorporation and principal place of

business.”). Plaintiff has also plausibly alleged that PXL LLC and PXL BV are, in effect,

“fundamentally indistinguishable” as one unitary corporation. Cf. Belvedere Condo. Unit Owners’

Ass’n v. R.E. Roark Cos., Inc., 617 N.E.2d 1075, 1086 (Ohio 1993) (“[A] concise statement of the

alter ego doctrine[:] a plaintiff must show that the individual and the corporation are fundamentally

indistinguishable.”). PXL LLC and PXL BV engaged in the same business. They shared a single

website. (ECF Nos. 1 ¶ 17, 1-1 at 15). They were formed by and operated by the same two

individuals. (See ECF Nos. 1 ¶ 17, 1-1 at 15 (noting that the website for PXL Chemicals listed

Mr. Plitt and Defendant Mr. Napoleoni as the “Founder / CEO” and “Founder / COO,”

respectively, of PXL Chemicals — without making any distinction between PXL LLC and PXL

BV)). The website listed the address of both PXL LLC’s office in Ohio and PXL BV’s office in

the Netherlands, with the inference that the Cincinnati and Rotterdam addresses were simply two

branches of the same company. (See ECF No. 1-1 at 15). Altogether, PXL Chemicals LLC and

16

PXL Chemicals BV held themselves out as a solitary entity, with a shared website, shared offices,

shared key personnel, shared products, and shared operations. In other words, PXL LLC and PXL

BV appeared to have “no separate mind, will, or existence of [their] own.” Belvedere Condo. Unit

Owners’ Ass’n, 617 N.E.2d at 1086.

The PXL Defendants dispute the idea that PXL LLC and PXL BV are a unitary enterprise;

instead, they note that “PXL BV is a separate and distinct legal entity from PXL LLC” and that

“PXL BV does not share a location with PXL LLC in either Ohio or the Netherlands.” (ECF No.

23 at 6). The PXL Defendants also argue that “PXL BV is not an Ohio corporation and . . . has no

officers or employees residing in Ohio.” (ECF No. 14 at 10). This argument is supplemented with

an affidavit from Defendant Mr. Napoleoni, stating that “PXL BV does not maintain a place of

business in Ohio[,] . . . have any managers, officers, or directors in Ohio[,] . . . have any employees

who resides in Ohio[,] . . . [or] own or lease any real property in Ohio.” (ECF No. 14-1 ¶¶ 5–7).

But distinct legal entities are not inherently immune from being classified as an alter ego. See,

e.g., Laborers Pension Trust Fund-Detroit and Vicinity v. Interior Exterior Specialists Constr.

Grp., Inc., 394 F. App’x 285, 287, 289 (6th Cir. 2010) (affirming the district court’s determination

that “TLG was an alter ego of IES,” even though IES and TLG were separate companies and

neither were owned by the other). And the contentions that PXL BV does not share a location

with PXL LLC, does not have an Ohio office, and does not have any officers residing in Ohio are

undermined by PXL Chemical’s website, which “show[ed] locations in both Ohio and the

Netherlands” and “identif[ied] Mr. Plitt [an Ohio resident] as ‘Founder/CEO.’” (ECF No. 1-1 at

17

15).3 As Plaintiff notes, Defendant Mr. Napoleoni’s affidavit statements fail to contradict

Plaintiff’s allegations about PXL BV’s past conduct and relationships with Mr. Plitt and PXL LLC,

which are central to this Court’s inquiry here. (See ECF No. 19 at 5).

This Court acknowledges that the relationship here, where alter ego jurisdiction as to the

subsidiary, rather than the parent, is in question, is unusual. But while it is true that, “[n]ormally,

courts apply the alter-ego theory of personal jurisdiction to parent-subsidiary relationships,”

Toyota Motor Corp. Worldwide, 545 F.3d at 362, such a relationship is not a prerequisite. Ohio

courts have not squarely addressed the issue of when, if ever, alter ego jurisdiction is applicable

outside of the parent-subsidiary paradigm. Cf. Minno v. Pro-Fab, Inc., 121 Ohio St.3d 464, ¶ 13,

2009-Ohio-1247, 905 N.E.2d 613, 617 (Ohio 2009) (holding narrowly “that a plaintiff cannot

pierce the corporate veil of one corporation to reach its sister corporation . . . [where] neither

corporation has any ownership interest in the other corporation”). Other jurisdictions in this

circuit, on the other hand, have explicitly considered this question and found that “an alter ego

relationship can be established between entities that are not in a parent-subsidiary relationship” for

the purposes of asserting personal jurisdiction. Wang v. Gen. Motors, LLC, 2021 WL 2134210, at

*3–*4 (E.D. Mich. May 26, 2021) (collecting cases); see also Nichols v. Pabtex, Inc., 151 F. Supp.

2d 772 (E.D. Tex. 2001). After all, the premise of alter ego jurisdiction rests on the “substance,

not form, of the inter-corporate nexus.” Superior Coal Co. v. Ruhrkohle, A.G., 83 F.R.D. 414, 421

(E.D. Pa. 1979) (citing K. J. Schwartzbaum v. Evans, Inc., 44 F.R.D. 589, 591 (S.D.N.Y. 1968).

And here, PXL BV and PXL LLC are not simply sister companies that are “separate” and “unable

3 The PXL Defendants do not dispute, in either their Motion to Dismiss (ECF No. 14) or their Reply (ECF

No. 23), that the website for PXL Chemicals (www.pxlchemicals.com) is associated with PXL BV or that the website

listed the information described above.

18

to exercise control over each other.” Minno, 905 N.E.2d at 617. Instead, Plaintiff has alleged that

the two are inextricably and indistinguishably linked, as demonstrated by PXL LLC’s ownership

interest over PXL BV, Mr. Plitt and Mr. Napoleoni’s joint control over both companies, and the

fact that they held themselves out to the world as one entity. In short, Plaintiff IPAC has pled a

plausible account that PXL BV and PXL LLC were alter egos of the same entity.

* * *

Through the discovery process, PXL Defendants may ultimately be able to demonstrate

that PXL LLC and PXL BV had entirely distinct corporate structures or unrelated operations, or

that PXL BV had no connection to the Ohio address listed on its own website. At this stage of the

litigation, however, this Court will draw all reasonable inferences in favor the plaintiff. In re

Travel Agent Comm’n Antitrust Litig., 583 F.3d at 903. As such, this Court finds that it has general

jurisdiction over Defendant PXL BV.

b. Personal Jurisdiction Over Defendant Mr. Napoleoni

By contrast, this Court cannot assert general personal jurisdiction over Defendant Mr.

Napoleoni. As the Supreme Court has clarified, “the paradigm forum for the exercise of general

jurisdiction is the individual’s domicile.” Daimler AG, 571 U.S. at 137. Mr. Napoleoni’s

domicile, in this case, is in Monaco. (ECF No. 22 at 4). Alter ego jurisdiction, as articulated

above, is not applicable here: Plaintiff has not alleged that Mr. Napoleoni has any ownership

interest over PXL LLC and cannot be considered its alter ego. (See ECF No. 1 ¶¶ 14, 19).

Moreover, both the Sixth Circuit and this Court have found that “personal jurisdiction under the

[Ohio] long arm statute must be specific rather than general.” Capitol Specialty Ins. Corp. v.

Splash Dogs, LLC, 801 F. Supp. 2d 657, 665 (S.D. Ohio 2011) (quoting Black v. Usher Transp.,

2010 WL 2465379, at *2 (S.D. Ohio June 11, 2010)).

19

This Court first looks at whether the assertion of jurisdiction over Mr. Napoleoni complies

with Ohio’s long-arm statute, which allows a court to “exercise personal jurisdiction over a person

who acts directly or by an agent, as to a cause of action arising from the person’s . . . [t]ransacting

any business in [Ohio].” Ohio Rev. Code § 2307.382(A). To “transact” business means “to

prosecute negotiations; to carry on business; [or] to have dealings.” Retail Serv. Sys., Inc., 210 F.

Supp. 3d at 924 (quoting Kentucky Oaks Mall Co. v. Mitchell’s Formal Wear, Inc., 559 N.E.2d

477, 480 (1990)). Here, Plaintiff has made a prima facie showing that Defendant Mr. Napoleoni

transacted business in the state of Ohio. Per Plaintiff’s allegations, Mr. Napoleoni collaborated

with an Ohio resident to start a new company together. (See ECF No. 1 ¶ 12). Together, they

formed PXL BV, which Mr. Napoleoni co-owned alongside a corporation, itself owned by Ohio

residents. (Id. ¶¶ 12, 14, 19). Mr. Napoleoni and Mr. Plitt held themselves out as the co-founders

of PXL Chemicals, an entity with an Ohio address. (See id. ¶ 17). They operated PXL Chemicals

together, which held itself out as a company with an Ohio location. (Id. ¶¶ 17, 50). Based on these

factual allegations, Defendant Mr. Napoleoni — through his work with Mr. Plitt and his operation

of a corporate entity that held itself out as having an Ohio address — is subject to personal

jurisdiction under the “transacting business” provision of Ohio’s long-arm statute.

The Court next considers whether the exercise of personal jurisdiction here comports with

the requirements of due process. The Sixth Circuit has provided guidance on this inquiry in the

form of a three-part test:

First, the defendant must purposefully avail himself of the privilege of acting in the

forum state or causing a consequence in the forum state. Second, the cause of action

must arise from the defendant's activities there. Finally, the acts of the defendant

or consequences caused by the defendant must have a substantial enough

connection with the forum state to make the exercise of jurisdiction over the

defendant reasonable.

20

Calphalon Corp., 228 F.3d at 721 (quoting Southern Mach. Co. v. Mohasco Indus., 401 F.2d 374,

381 (6th Cir. 1968). Because “the Ohio long-arm statute’s transacting any business standard is

coextensive with the purposeful availment prong of constitutional analysis,” Rsch. Inst. at

Nationwide Children’s Hosp. v. Trellis Bioscience, LLC, 2016 WL 5791194, at *8 (S.D. Ohio

Sept. 30, 2016) (internal quotations omitted), the preceding analysis, which showed that Mr.

Napoleoni’s actions qualify as “transacting business,” also suffices to demonstrate that he has

“purposefully availed” himself of conducting business in the forum state.

Defendant relies on an unreported case from outside this district, R.I.A. Melbourne Ltd.

P’ship v. Forman Capital, LLC, 2008 WL 2388012 (N.D. Ohio June 6, 2008), to suggest that his

“fortuitous” contacts with the Ohio resident, Mr. Plitt, are insufficient to establish purposeful

availment. (See ECF No. 22 at 12–13). While Defendant’s recitation of R.I.A. Melbourne is

correct, “the Sixth Circuit [has] suggested that a key inquiry in the purposeful availment analysis

is whether the defendant intends to establish continuing relationships and obligations in the forum

state.” Ault Int’l Med. Mgmt., LLC v. City of Sevierville, 2020 WL 1244190, at *3 (S.D. Ohio

2020); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (distinguishing between

“contacts [that] result from actions by the defendant himself” and the “unilateral activity of another

party or third person” (emphasis in original)). The defendant in R.I.A. Melbourne did not appear

to establish continuing relationships in Ohio, given that the communications aimed at Ohio were

“brief,” the relationship with an Ohio resident was not initiated by the defendant, and the wire

transfers from Ohio bank accounts were “unilateral activit[ies]” of the plaintiff. R.I.A. Melbourne,

2008 WL 2388012, at *5–*6. The Sixth Circuit has also suggested that the duration of the

defendant’s relationship with Ohio matters. See Condon v. Flying Puck, LLC, 35 F. App’x 173,

174 (6th Cir. 2002) (distinguishing the contractual relationship at issue, because of its short

21

duration, from the “ongoing business relationship” in Cole v. Mileti, 133 F.3d 433 (6th Cir. 1998)).

In the present case, Mr. Napoleoni’s connections with Ohio were not brief or unilateral; instead,

Mr. Napoleoni deliberately sought to establish a new business with Mr. Plitt under Ohio laws and

with an Ohio office, indicating a long term, ongoing business relationship.

With respect to the intentional torts claims, Plaintiff has also shown that Defendant Mr.

Napoleoni has sufficient minimum contacts with Ohio. The “effects test,” first explained in Calder

v. Jones, 465 U.S. 783 (1984), guides this Court’s evaluation of whether a nonresident’s actions

in an intentional torts case rise to the level of purposeful availment. Under this test, “personal

jurisdiction exists where an individual purposefully directs activities towards the forum state with

the intent to cause harm there.” Scotts Co. v. Aventis S.A., 145 F. App’x 109, 113 (6th Cir. 2005).

Plaintiff IPAC has plausibly alleged that Mr. Napoleoni directed communications at Mr. Plitt, an

Ohio resident, intending to disrupt the business relationship between Plaintiff and Mr. Plitt. (ECF

No. 1 ¶ 84); see Corp. Bertec v. Spartac Software Corp., 2020 WL 2112162, at *3 (S.D. Ohio May

4, 2020) (“[Defendant’s] actions, however, were directed at disrupting an ongoing business

relationship in Ohio, thus causing a consequence in Ohio.”). Subsequently, Mr. Napoleoni

operated a business that held itself out as a forum state corporation together with Mr. Plitt.

The second prong of the due process analysis requires the “cause of action to arise from

the defendant’s activities there.” Calphalon Corp., 228 F.3d at 721. At a minimum, this requires

that “the cause of action, of whatever type, have a substantial connection with the defendant’s in-

state activities.” Southern Mach. Co., 401 F.2d at 384 n.27. Plaintiff alleges that Defendant Mr.

Napoleoni directed communications at Steven Plitt in Ohio in the course of founding and operating

PXL Chemicals, and that these communications constituted the misuse and misappropriation of

IPAC trade secrets. (ECF No. 1 ¶¶ 44, 46). Although the allegations are somewhat lacking in

22

specificity, the inferences drawn are not unreasonable: the well-pled allegations that Mr.

Napoleoni and Mr. Plitt together formed the PXL entities to misappropriate IPAC trade secrets

leads to the natural conclusion that Mr. Napoleoni discussed the actions underlying that

misconduct with Mr. Plitt, an Ohio resident. See Schmückle, 854 F.3d at 899. In other words, the

very misconduct that Plaintiff alleges arose out of Mr. Napoleoni’s communications with Mr. Plitt

about PXL. Thus, the trade secret misappropriation claims arise out of Mr. Napoleoni’s

communications and collaborations in Ohio.

When a court has determined that the first two prongs are met, “the inference arises that

the third, fairness, is also present; only the unusual case will not meet this third criterion.” Am.

Greetings Corp. v. Cohn, 839 F.2d 1164, 1170 (6th Cir. 1988) (quoting First Nat’l Bank of

Louisville v. J.W. Brewer Tire Co., 680 F.2d 1123, 1126 (6th Cir. 1982)). In determining if the

third prong is met — that is, whether the acts of the defendant have a substantial enough connection

to the forum state to make exercise of jurisdiction reasonable — “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.’” Corp. Bertec, 2020 WL 2112162, at *6 (citing Air Prods. and Controls, Inc. v.

Safetech Int’l, Inc., 503 F.3d 544, 555 (6th Cir. 2007)).

Although this case does pose an unusual twist, cf. Nationwide Mut. Ins. Co. v. Tryg Int’l

Ins. Co., Ltd., 91 F.3d 790, 797 (6th Cir. 1996) (warning that “[s]pecial concerns arise when a

plaintiff attempts to bring a foreign defendant within our national borders”), the burden of litigating

this case in Ohio for Mr. Napoleoni “does not [by itself] overcome the ‘inference of

reasonableness’ that attaches when a plaintiff demonstrates purposeful availment and that the

cause of action arises from the state connections.” Corp. Bertec, 2020 WL 2112162, at *6 (quoting

23

Schneider v. Hardesty, 669 F.3d 693, 704 (6th Cir. 2012)). This is especially so where Ohio has

a strong interest in business being conducted fairly and legally within its borders. See Ault Int’l

Med. Mgmt., 2020 WL 1244190, at *3. Defendant’s assertion that “Ohio has no interest in

protecting a California resident’s legal options” ignores this Court’s commitment to ensuring that

both Ohio corporations and foreign entities that do business with Ohio firms stay within the limits

of its laws. (ECF Nos. 22 at 15, 14-1 ¶ 10 (reporting that Mr. Napoleoni continues to work with

PF5, an Ohio corporation)). Plaintiff’s interest in pursuing relief for its alleged damages also

weighs in favor of finding personal jurisdiction over Mr. Napoleoni. See also In re Black Gold

S.A.R.L., 635 B.R. at 522–24 (detailing Plaintiff IPAC’s difficulties in recovering its arbitration

award against Mr. Napoleoni’s distribution company, Black Gold).

Finally, the fourth factor is neutral — even though a California court would have an interest

in adjudicating this matter, given Plaintiff’s connections to and arbitration award in California,

Plaintiff’s claims rest on Ohio law and center on conduct carried out in Ohio. Because Mr.

Napoleoni has not brought forward considerations sufficient to overcome the strong inference of

reasonableness, this Court finds that the exercise of jurisdiction over Mr. Napoleoni is reasonable

and comports with due process.

2. Venue

Alternatively, Defendants PXL BV and Mr. Napoleoni both ask this Court to dismiss the

case on grounds of improper venue. (See ECF Nos. 14 at 15–16, 22 at 16–17). Under § 1391(a)(2),

proper venue requires that “a substantial part of the events or omissions giving rise” to a plaintiff’s

claims occur in the forum district. Courts do not “ask which district among the two or more

potential forums is the ‘best’ venue,” First of Michigan Corp. v. Barmlet, 141 F.3d 260, 263 (6th

Cir. 1998) (quoting Setco Enters. Corp. v. Robbins, 19 F.3d 1278, 1281 (8th Cir. 1994)), but rather

24

“whether the district the plaintiffs chose had a substantial connection to the claim, whether or not

other forums had greater contacts.” Robbins, 19 F.3d at 1281.

As discussed at length above, the Southern District of Ohio has a substantial connection to

IPAC’s alleged claims. Defendant PXL BV was deeply intertwined with PXL LLC, an Ohio

corporation based in Cincinnati, and held itself out as one business with an Ohio office. PXL BV

is alleged to have developed and marketed products based on trade secrets in conjunction with an

Ohio corporation. And Mr. Napoleoni, despite his residence elsewhere, is alleged to have directed

communications at an Ohio resident and to have helped operate the PXL Chemicals’ endeavors,

which happened in part in Ohio. Under these circumstances, there are enough ties to this district

to satisfy the “substantiality” test of 28 U.S.C. § 1391(b)(2).

3. Failure to State a Claim

Finally, all Defendants ask this Court to dismiss the case for failure to state a claim.

Plaintiff’s claims can be broken into three categories: (1) trade secret misappropriation claims

(Counts I and II); (2) common law claims (Counts III, IV, and V); and (3) violation of injunction

(Count VI). This Court addresses each category of claims in turn.

a. Trade Secret Misappropriation Claims

To state a claim for misappropriation of trade secrets under the Defend Trade Secrets Act

(“DTSA”), 18 U.S.C. §§ 1831–1839, a plaintiff must show: (1) the existence of a protectable trade

secret; and (2) the misappropriation of the trade secret by defendant. See, e.g., Corp. Bertec, 2020

WL 2112162, at *7. For claims pursuant to the Ohio Uniform Trade Secrets Act (“OUTSA”),

Ohio Rev. Code §§ 1333.61–1333.69, a plaintiff must demonstrate: “(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.” Handel’s Enters., Inc. v. Schulenburg, 765 F. App’x 117, 122

25

(6th Cir. 2019) (quoting Heartland Home Fin., Inc. v. Allied Home Mortg. Cap. Corp., 258 F.

App’x 860, 861 (6th Cir. 2008)). Defendants suggest that Plaintiff has not pled plausible

allegations that demonstrate any of these elements.

Regarding the first element, Defendants simply state that IPAC cannot show the existence

of trade secrets, but do not explain why that is so. (See ECF Nos. 14 at 17, 22 at 18). “Trade

secret” is defined similarly under both the DTSA and the OUTSA: it entails “information” that the

owner seeks to protect as confidential and that has economic value from not being publicized. See

18 U.S.C. § 1839(3); Ohio Rev. Code § 1333.61(D). The Supreme Court of Ohio has further

expanded on this definition with a six-factor test to determine whether 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 Dep’t of Ins., 687 N.E.2d 661, 672 (Ohio 1997). Here,

Plaintiff claims that its trade secrets include “customer lists, products, processes, services,

research, development, inventions, manufacture, purchasing, accounting, engineering, marketing,

merchandising, selling, price and internal policies.” (ECF No. 1 ¶ 61). This definition, though

broad, clearly encompasses information with economic value; IPAC is in the business of

manufacturing additives, and it is valuable to IPAC not to have competitors know their product

formulations, customers, and manufacturing processes. The lengths to which Mr. Plitt went to

acquire proprietary IPAC information (and to hide his acquisition) further support the proposition

26

that that information has economic value.4 (See id. ¶¶ 8–10). Moreover, IPAC has outlined the

measures it has taken to protect its confidential information, including the use of password

protection, non-disclosure and confidentiality agreements, limits on access to information, and

locked doors. (ECF No. 1 ¶ 75). In fact, Defendant Mr. Napoleoni himself previously signed

confidentiality and non-disclosure agreements with IPAC as head of Black Gold. (See ECF No.

1-1 at 11–12 (excerpting the Sales Representative Agreement and Exclusive Distributor

Agreement between IPAC and Black Gold). IPAC’s allegations in the complaint sufficiently state

the existence of trade secrets.

The foregoing facts also suggest that Plaintiff has met its burden to plead facts giving rise

to a reasonable inference that trade secrets were acquired through confidential relationships.

Defendant Mr. Napoleoni, as the co-owner and operator of Black Gold, had access to IPAC trade

secrets and had an obligation through the sales representative and distribution agreements to keep

that information confidential. (See ECF No. 1 ¶ 11). Mr. Plitt acquired, and forwarded to himself,

IPAC trade secrets while an employee of IPAC. And it is reasonable to infer that the PXL

Defendants also had access to IPAC trade secrets through their co-founders Mr. Napoleoni and

Mr. Plitt.

Defendants also contend that Plaintiff failed to show the “unauthorized use” of the trade

secrets, because “IPAC relies on hearsay and conclusory allegations to assume Defendants

4 This Court acknowledges that there is some dispute about the precise nature of Mr. Plitt’s actions. (Compare

ECF No. 1-1 at 19 (detailing the arbitrator’s findings in Int’l Petroleum Prods. and Additives Co., Inc., v. Black Gold,

S.A.R.L., et al., AAA Case No. 01-18-0001-9728 (2019) (Dosker, Arb.) that Mr. Plitt e-mailed himself confidential

IPAC documents with no legitimate IPAC business in purpose, with ECF No. 38-1 at 9–10 (outlining the arbitrator’s

conclusion in Int’l Petroleum Prods. and Additives Co., Inc., v. Steven Plitt, JAMS Case No. 1120014056 (2022)

(Hasse, Arb.) that Mr. Plitt did not destroy or delete electronic documents from his laptop, contrary to IPAC’s

allegations that he “wiped” his laptop)). At the motion to dismiss stage, however, “this [C]ourt will not consider facts

proffered by the defendant that conflict with those offered by the plaintiff.” Neogen Corp., 282 F.3d at 887.

27

released products resembling IPAC product.” (ECF No. 14 at 17). This Court agrees that “it is

improper for a court to consider hearsay statements when ruling on a motion to dismiss,” Beydoun

v. Wataniya Restaurants Holding, Q.S.C., 768 F.3d 499, 506 (6th Cir. 2014), but finds that

Plaintiff’s Complaint provides a sufficient basis to support its allegations that Defendants

misappropriated trade secrets. Mr. Plitt and Defendant Mr. Napoleoni had “IPAC invoices,

marketing information, pricing lists and product data sheets” as well as a “password-protected

Microsoft Excel file detailing the identity, vendor, price, and relative composition for each

component in each of IPAC’s products.” (ECF No. 1-1 at 7, 19). They then jointly founded the

PXL Defendants and, within five months of formation, were able to market and sell additive

products, some of which were deemed to be knock-offs of IPAC products at arbitration.5 (Id. at

13–14, 16–17). And when Mr. Napoleoni was asked how PXL was able to develop products so

quickly without the use of IPAC’s trade secrets, Mr. Napoleoni admitted that he “had it available.”

(Id. at 21). Dismissal is inappropriate here, where Plaintiff has articulated a theory of trade

misappropriation, replete with “factual enhancement,” see Corp. Bertec, 2020 WL 2112162, at *8

(quoting Exal Corp. v. Roeslein & Assocs., Inc., 2013 WL 6843022, at *5 (N.D. Ohio Dec. 27,

2013), based on Defendants’ possession of specific confidential documents and use of that

information to develop knock-offs of IPAC products.

b. Common Law Claims

5 In other contexts, the Sixth Circuit has held that “a district court may admit an arbitrator’s decision as

evidence” as long as there are sufficient indications of procedural fairness and an adequate record. Nance v. Goodyear

Tire & Rubber Co., 527 F.3d 539, 549, 550 n.3 (6th Cir. 2008); see also McDonald v. City of West Branch, Mich.,

466 U.S.248, 292 n.13 (1984) (clarifying that in § 1983 cases, “an arbitral decision may be admitted as evidence”).

The same rationale applies here, and this Court considers the arbitrator’s findings as part of the factual allegations set

out by Plaintiff.

28

Defendants suggest that all of IPAC’s common law claims — including the claims of

tortious interference with contractual or business relations (Count III), civil conspiracy (Count IV),

and unjust enrichment (Count V) — should be dismissed because the claims are preempted by the

OUTSA. The OUTSA preempts conflicting “tort, restitutionary, and other laws” that provide

“civil remedies for misappropriation of a trade secret.” Ohio Rev. Code § 1333.67(A). To

determine if preemption is warranted, this Court looks at “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 Indus., 605 F. App’x

473, 485 (6th Cir. 2015) (quoting Thermodyn Corp. v. 3M Co., 593 F. Supp. 2d 972, 989 (N.D.

Ohio 2008)). But, at this stage in the litigation, plaintiffs are “permitted to plead claims in the

alternative, and a court may not dismiss claims as preempted until the parties have 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.’” Corp. Bertec, 2020 WL

2112162, at *8 (quoting Thermodyn Corp., 593 F. Supp. 2d at 990).

Defendants suggest that, even if Plaintiff’s common law claims are not preempted by

OUTSA, they lack factual support, but fail to elaborate on this argument and do not provide any

indication of what precisely is missing. (See, e.g., ECF No. 14 at 19). But, for the sake of

completeness, this Court explains why IPAC has satisfied its pleadings requirements. First, for a

claim for tortious interference with contract, a plaintiff must demonstrate: “(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). Here, IPAC has

alleged the existence of contracts with Mr. Napoleoni and Mr. Plitt. (See, e.g., ECF No. 1 ¶ 2).

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Plaintiff has alleged that both individuals had actual knowledge of each other’s contracts with

IPAC.

Demonstrating the third and fourth elements of tortious interference requires a plaintiff to

“show that the defendant’s interference with another’s contract was improper.” Bridge v. Park

Nat’l Bank, 2003 WL 22976520, at *2 (Ohio Ct. App. Dec. 18, 2003). Factors for determining

impropriety include the nature of the actor’s conduct and the actor’s motive. Id. Under this

analysis, the impropriety of Defendants’ conduct is clearly demonstrated here: Defendants’

actions, as pleaded by IPAC, were intended to breach their agreements with Plaintiff. IPAC has

also sufficiently alleged that Defendants’ motives in breaching the agreements were to compete

against Plaintiff for Plaintiff’s existing customers, in contravention of the agreement by Defendant

Mr. Napoleoni’s company “to do whatever is reasonably required by IPAC in order to continue a

viable business with IPAC the customers served by the distributor.” (ECF No. 1-1 at 12). And

finally, Plaintiff has alleged that these actions caused economic harm in the form of lost sales. (See

ECF No. 1 ¶ 24). In short, Plaintiff has sufficiently alleged the elements of a tortious interference

claim under Ohio state law.

Second, civil conspiracy is defined, by Ohio courts, as “a malicious combination of two or

more persons to injure another in person or property, in a way not competent for one alone,

resulting in actual damages.” Kenty v. Transamerica Premium Ins. Co., 650 N.E.2d 863, 866

(Ohio 1995) (citations omitted). Additionally, “an underlying unlawful act is required before a

civil conspiracy claim can be successful.” Williams v. Aetna Fin. Co., 700 N.E.2d 859, 868 (Ohio

1998). Civil conspiracy “does not require a showing of an express agreement between defendants,

but only a common understanding or design, even if tacit, to commit an unlawful act.” Gosden v.

Louis, 687 N.E.2d 481, 496 (Ohio Ct. App. 1996). Nevertheless, “if one person could lawfully

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commit an act, then that act committed by two or more persons cannot support a conspiracy claim.”

Id. at 497 (citing Palmer v. Westmeyer, 549 N.E.2d 1202, 1207–08 (Ohio Ct. App. 1988). Here,

Plaintiff has alleged that two or more people or entities — including all Defendants — worked

together to commit trade secret misappropriation, the underlying unlawful act; Plaintiff has also

alleged that Defendants intended to and succeeded in causing economic harm to Plaintiff.

Finally, 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). In seeking dismissal of this claim, Defendants provide

only a bare statement that “IPAC provides no factual basis to support these claims” (besides their

claim of OUTSA preemption, which is not applicable for the same reasons discussed above). (ECF

No. 14 at 19). The facts alleged by Plaintiff include: that Plaintiff conferred trade secrets to

Defendant Mr. Napoleoni and to the PXL Defendants, via Mr. Napoleoni and Mr. Plitt; that

Defendants were aware of and used that knowledge; and that Defendants benefited from the use

of that knowledge. Accordingly, Plaintiff has stated a claim for unjust enrichment.

* * *

Because it is possible that further discovery would enable IPAC to base its tortious

interference, civil conspiracy, and unjust enrichments claims on facts different from those alleged

in its trade secret claim, dismissal on the basis of OUTSA preemption is inappropriate at this

juncture. See Corp. Bertec, 2020 WL 2112162, at *8. After all, OUTSA preempts only those

claims that “are no more than a restatement of the same operative facts” that comprise a plaintiff’s

statutory trade secret misappropriation claims. Glasstech, Inc. v. TGL Tempering Sys., Inc., 50 F.

Supp. 2d 722, 730 (N.D. Ohio 1999). Here, Plaintiff has not yet had an opportunity to demonstrate

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that its alternative civil remedies are based on based on misappropriation of a trade secret, or an

opportunity to conduct discovery for that aim. In other words, dismissal of Counts III through V

on the basis of preemption is premature.

c. Violation of Injunction

Defendants also move to dismiss Plaintiff’s violation of injunction claim, on the basis that

none of the Defendants was named in the injunction that was entered against Black Gold. (ECF

Nos. 14 at 20, 22 at 21–22). Defendant Mr. Napoleoni, who co-owned and operated Black Gold,

the named party in the arbitration proceeding, argues first that “the injunction is against Black

Gold not Mr. Napoleoni” and further that “IPAC fails to allege Mr. Napoleoni aided and abetted

Black Gold.” (ECF No. 22 at 20, 21). The PXL Defendants essentially make the same arguments,

with the additional point that their connection to Black Gold is even more attenuated than Mr.

Napoleoni’s. (See ECF No. 14 at 20). The fact that Defendants are not named in the arbitration

is not, on its own dispositive: a non-party may be bound by an injunction if she “act[s] in concert

or participation with a party against whom an injunction has been issued” and has actual notice of

the injunction. Midland Steel Prods. Co. v. U.A.W. Local 486, 573 N.E.2d 98, 102 (Ohio 1991);

see also In re NAACP, Special Contribution Fund, 849 F.2d 1473 (6th Cir. 1988). This is true too

in California, the forum of the original arbitration hearing between IPAC and Black Gold. (See

ECF No. 1-1 at 29 (“If any non-party to this arbitration later contends that the injunction issued in

this Final Award . . . may not be enforced against such non-party to this arbitration solely because

it or he or she was not within the arbitral jurisdiction of the Arbitrator in ruling on IPAC’s claims

in this arbitration or was not named as a Respondent in this arbitration, that contention would be

unsupported by either California law or United States federal law.” (internal citations omitted)).

To evaluate if Defendants are “in active concert or participation with an enjoined party, we look

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to the actual relationship between the two.” Tesmer v. Granholm, 333 F.3d 683, 703 (6th Cir.

2003). A non-party is deemed to be in active concert or participation “if that party is identified

with the named, enjoined party in interest, in ‘privity’ with it, represented by it or subject to its

control.” Id. (quoting Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945)).

As an initial matter, Mr. Napoleoni is subject to the previous arbitration award (ECF No.

1-1) as the co-owner and operator of Black Gold. See Fed. R. Civ. P. 65(d)(2)(B) (noting that

injunctions bind “the parties’ officers, agent, servants, employees, and attorneys”). Defendant Mr.

Napoleoni does not dispute that “the arbitration award is binding on him acting as a representative

of Black Gold” but appears to dispute the legal effect of the award on him as an individual. (ECF

No. 27 at 3). This is because, Mr. Napoleoni suggests, “the arbitrator determine[ed] that there is

no arbitral jurisdiction over claims against Mr. Napoleoni under both agreements.” (Id. (citing

ECF No. 1-1 at 24–25). This Court is unable to find the same conclusion anywhere in the

arbitration decision. Moreover, this Court is unable to find any authority (and Defendant Mr.

Napoleoni does not cite any) holding that an individual who is legally bound as the officer or

representative of an entity subject to the restrictions of an injunction is free to act in contravention

of those same restrictions in his free time; to the contrary, “an officer of the corporation and the

one responsible for the corporation’s affairs[] was subject to the court’s [injunctive] order just as

the corporation itself was,” regardless of “whether or not [the officer] was a named defendant in

the order, or even mentioned at all.” Elec. Workers Pension Trust Fund of Loc. Union #58, IBEW

v. Gary’s Elec. Serv. Co., 340 F.3d 373, 382 (6th Cir. 2003) (citations omitted).

Moreover, Plaintiff IPAC has adequately alleged that Defendants’ actions “assisted” Black

Gold, the party named in the injunction. It is uncontested that the previous arbitration award (ECF

No. 1-1) enjoined Black Gold and any aiders and abettors from “making, marketing or selling any

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product formulated or otherwise made using IPAC Confidential information,” among other

provisions. (ECF No. 1-1 at 37). Black Gold is a distribution company; it does not make additives.

Instead, it is the PXL Defendants (and Mr. Napoleoni as founder and COO) that have engaged in

the “making, marketing or selling” of knock-off IPAC products, per Plaintiff’s allegations. To put

it another way, it is the PXL Defendants, acting in concert with Mr. Napoleoni and using trade

secret information procured through the enjoined party, who are bringing about a result forbidden

by the injunction. See Additive Controls & Measurement Sys., Inc. v. Flowdata Inc., 154 F.3d

1345, 1353 (Fed. Cir. 1998) (finding that non-parties are subject to injunctions where “they act

with an enjoined party to bring about a result forbidden by the injunction”).

Accordingly, Plaintiff IPAC has adequately pled allegations that Defendants, despite being

non-parties to the arbitration award, are violating the injunction by being in active concert or

participation with Black Gold.

C. Motion for Sanctions

Defendants have also filed a motion for sanctions against Plaintiff’s counsel, Mr. Joshi

(ECF No. 33). Defendants argue that Mr. Joshi has knowingly made false and misleading

statements about Mr. McGrath and Mr. Carr, and that this Court has the inherent power to sanction

this kind of bad faith conduct. (See id. at 5). Specifically, Defendant cite five comments from

Plaintiff’s Motion for Leave to File Supplemental Memoranda (ECF No. 31), wherein Plaintiff’s

counsel makes three statements about the actions of “the defendants’ counsel, the Dentons law

firm,” without distinguishing between particular attorneys who work at Dentons — with the

implication that the behavior of other Dentons’ lawyers in related cases can be attributed to or

linked with the behavior of Mr. McGrath and Mr. Carr, the Dentons’ lawyers who represent

Defendants in this case. (See ECF No. 33 at 3). The other two referenced statements by Mr. Joshi

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explicitly question “the credibility of Mr. Napoleoni and its counsel.” (ECF No. 33 at 3). With

respect to the first three comments listed in Defendants’ Motion for Sanctions (ECF No. 33), this

Court finds that Mr. Joshi’s use of relative clauses in each comment sufficiently clarifies that he is

referring to the Dentons law firm and not to the particular Dentons lawyers working on this case,

especially as those relative clauses are not used elsewhere.6 Therefore, this Court focuses its

analysis on whether the fourth and fifth comments cited in Defendants’ motion are evidence of

bad faith.

To determine if counsel’s conduct was “tantamount to bad faith” and thus worthy of

sanction pursuant to a court’s inherent authority,7 the Sixth Circuit has proscribed a three-part test,

requiring courts to find: “(1) that the claims advanced were meritless; (2) that counsel knew or

should have known this; and (3) that the motive for filing suit was for an improper purpose such

as harassment” before issuing sanctions. Metz v. Unizan Bank, 655 F.3d 485, 489 (6th Cir. 2011)

(citing Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308, 313 (6th Cir. 1997)). But a

court must also keep in mind that its “inherent powers must be exercised with restraint and

discretion,” and reserved only for situations where “the conduct of a party or an attorney is

egregious.” First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 516 (6th Cir.

6 The three comments, for reference are: “1. ‘(T)he Bankruptcy Court for the Northern District of California

(Bankr. N.D. Cal.) made determinations about Mr. Napoleoni and the defendants’ counsel, namely the Dentons law

firm, that are directly relevant to the motions to dismiss.’ 2. ‘The same counsel as here, namely the Dentons law firm,

represented Black Gold and Mr. Napoleoni in the bankruptcy proceeding.’ 3. ‘IPAC asserts in its opposition papers to

both motions that Mr. Napoleoni and the Dentons firm . . . .’” (ECF No. 33 at 3 (internal citations omitted)).

7 Federal district courts have at least three sources of authority to impose sanctions – based on Rule 11 of the

Federal Rules of Civil Procedure, 28 U.S.C. § 1927, or the court’s inherent authority. See Dubuc v. Green Oak Twp.,

482 F. App’x 128, 132 (6th Cir. 2012) (inherent authority); Hall v. Liberty Life Assurance Co. of Boston, 595 F.3d

270, 275 (6th Cir. 2010) (Rule 11 and 28 U.S.C. § 1927). As Defendants do not suggest that this Court should sanction

Mr. Joshi pursuant to Rule 11 or 28 U.S.C. § 1927, this Court evaluates only whether sanctions are appropriate

pursuant to its inherent authority. See First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 513

(6th Cir. 2002) (holding that a district court does not need, “in every case, to exhaust consideration of sanctions under

other relevant rules and/or statutes” before levying sanctions under its inherent authority).

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2002) (first quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991); and then quoting Martin

v. Brown, 63 F.3d 1252, 1265 (3d Cir. 1995)).

At the outset, this Court notes that it disfavors statements by counsel accusing opposing

counsel of hiding information or seeking to deceive the Court without strong factual basis. Mr.

Joshi’s assertions implying that Mr. McGrath or Mr. Carr participated in the bankruptcy court

proceeding were unwarranted because Mr. Joshi should have known the identities of opposing

counsel in that case from attending hearings and reading briefing, but were not entirely without

colorable basis, given the engagement letter between Dentons and Black Gold that listed Mr.

McGrath and Mr. Carr. (See ECF Nos. 33-1, 34-3, 35 at 3). Moreover, Mr. Joshi’s statements,

even if potentially misguided, were made in an effort to discredit Mr. Napoleoni’s affidavit as

support for Defendants’ motions to dismiss, rather than for “an improper purpose such as

harassment.” Big Yank Corp., 125 F.3d at 313; see also First Bank of Marietta v. Hartford

Underwriters Ins. Co., 115 F. Supp. 2d 898, 907–08 (S.D. Ohio 2000), aff’d 307 F.3d 501 (6th

Cir. 2002) (finding filing meritless litigation to force settlement payment to be an improper

purpose). Accordingly, this Court finds that sanctions are not warranted, but does caution counsel

to ensure that any attacks on credibility must be made with restraint and only where absolutely

warranted by a sound factual basis.

IV. CONCLUSION

For the reasons discussed above, the PXL Defendants’ Motion to Dismiss (ECF No. 14)

and Defendant Mr. Napoleoni’s Motion to Dismiss (ECF No. 22) are DENIED. Plaintiff’s

motions for leave to file sur-replies (ECF Nos. 24, 28) are DENIED. Plaintiff’s Motion for Leave

to File Supplemental Memoranda (ECF No. 31) is GRANTED. Defendants’ Motion for Sanctions

(ECF No. 33) is DENIED.

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IT IS SO ORDERED.

ALGENOML. MARBL

CHIEF UNITED STATES DISTRICT JUDGE

DATED: September 28, 2022

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