Safelite Group, Inc. v. Lockridge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SAFELITE GROUP, INC.,

Plaintiff, :

Case No. 2:21-cv-4558

v.

Judge Sarah D. Morrison

Magistrate Judge Elizabeth A.

Preston Deavers

NATHANIEL LOCKRIDGE,

et al., :

Defendants.

OPINION AND ORDER

Safelite Group, Inc. commenced this action on September 13, 2021, by filing a

two-count complaint against Nathaniel Lockridge. (Compl., ECF No. 1.) Two

months later, Safelite amended its complaint to add claims against Caliber Collision

Centers, Jeffrey Nowak, and William Harris Billingsley. (ECF No. 15.) Safelite was

granted leave to amend its complaint once more, this time adding claims against

Bryan Lynch. (ECF No. 125.) The operative Second Amended Complaint was filed

on April 20, 2022. (SAC, ECF No. 126.) Caliber, Nowak, Lockridge, and Lynch now

move for dismissal of, or judgment on, the claims against them. (ECF Nos. 154, 152,

162, and 166.)

For the reasons set forth below, the motions are GRANTED in part and

DENIED in part.

I. BACKGROUND

All well-pleaded factual allegations in the Second Amended Complaint are

considered as true for purposes of these motions. See Gavitt v. Born, 835 F.3d 623,

639–40 (6th Cir. 2016); Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th

Cir. 2008) (citation omitted). The following summary draws from the allegations in

that Complaint and the documents attached thereto.

A. The Parties

Safelite is an auto glass repair and replacement company with more than

7,000 locations. (SAC, ¶ 17.)

Caliber is a collision repair company, but has recently “developed and

expanded its auto glass repair and replacement business to compete directly with

Safelite nationwide.” (Id., ¶¶21, 24.)

Nowak, Billingsley, Lockridge, and Lynch are all former Safelite employees

and current Caliber employees. (Id., ¶¶ 25, 83, 199, 238, 239, 279, 285, 318.)

B. The Proprietary Information

Safelite alleges that the auto glass repair and replacement industry is “highly

competitive.” (Id., ¶ 9.) As a result, “Safelite considers its pricing, costs, designs,

services, sales plans, business model, strategic growth plans, training methods,

employee ratings, individual market data, and vendor and customer information”

(the “Proprietary Information”) to be proprietary and confidential. (Id., ¶ 18.) It

takes pains to protect the Proprietary Information from public disclosure, “because

it could be used to Safelite’s detriment should such information fall into the hands

of a competitor.” (Id.) Among other efforts, Safelite restricts internal access to the

Proprietary Information using password protection and document privilege schemes

(see, e.g., ¶¶ 20, 34–35, 38, 202–10), and requires employees with access to the

Proprietary Information to enter into confidentiality, non-competition, and non-

solicitation agreements (id., ¶ 19).

C. After twenty-five years, Nowak leaves Safelite. He is quickly

hired by Caliber to lead its emerging auto glass business.

Nowak started working for Safelite in 1996 as a technician. (Id., ¶ 25.) After

working elsewhere for two years, Nowak returned to Safelite in 2004 as a Tucson-

based technician manager. (Id., ¶¶ 26–27.) Nowak received a series of promotions

until, in 2013, he was named District Manager responsible for Safelite operations in

Washington and Alaska. (Id., ¶¶ 29–30, 36–37.)

As District Manager, and in a previous role as National Technician Trainer,

Nowak had access to certain Proprietary Information. (Id., ¶¶ 33–34, 38.)

Consequently, Nowak entered into an Agreement dated February 23, 2008,

pursuant to which he agreed to keep certain information (including the Proprietary

Information) confidential. (Id., ¶¶ 43–47; Nowak Agreement, PAGEID # 85–90.) The

Nowak Agreement also included non-competition and non-solicitation provisions

intended to apply after Nowak left Safelite’s employ. (SAC, ¶¶ 48–49, 51; Nowak

Agreement.)

Nowak resigned from Safelite effective January 29, 2021. (SAC, ¶¶ 56–57;

Nowak Separation Agreement, PAGEID # 91–126.) On that date, he entered into a

Separation Agreement affirming his confidentiality, non-competition, and non-

solicitation obligations. (SAC, ¶¶ 58–61; Nowak Separation Agreement.)

Two months later, Nowak applied for a managerial position with ProTech, a

Caliber affiliate that performs vehicle calibrations. (SAC, ¶¶ 66–67.) By way of the

ProTech application and interview process, Caliber began recruiting Nowak to “help

set up [Caliber’s] auto glass repair and replacement business[.]” (Id., ¶¶ 69–76.)

Safelite alleges that “Caliber targeted Nowak because of his intimate knowledge of

Safelite’s confidential and proprietary training techniques and business

structure[.]” (Id., ¶ 80.) Though aware of his contractual obligations to Safelite,

Caliber hired Nowak in May 2021. (Id., ¶¶ 77, 81.)

As a Glass Operations Specialist/Senior Manager, Integration Operations,

Nowak was responsible for the following aspects of Caliber’s auto glass repair and

replacement venture:

overall project management of each new acquisition and market

expansion; delivery of training and standards for technician

performance and growth; ensuring that new Caliber team members

have support and resources to complete their work safely and

efficiently; directing and leading operations at market level by

establishing and maintaining company goals; conducting interviews

and facilitating the offer process; determining instructional methods

utilizing knowledge of specific training needs and effectiveness of such

methods such as individualized training, group training, or

demonstrative training; managing of market performance; providing

expectations and necessary tools, training, and information for each

General Manager; and evaluating operational processes and

recommending company-wide practices.

(Id., ¶ 79.) To accomplish their aims, Caliber and Nowak launched an effort to hire

“managerial-level current or former Safelite employees” across the country—among

them, Billingsley, Lockridge, and Lynch. (Id., ¶¶ 89–195.)

D. Caliber and Nowak recruit Billingsley, Lockridge, and Lynch.

Although certain aspects of Billingsley, Lockridge, and Lynch’s stories

diverge (with relevant details discussed further, below), the three have common

elements. Each one had access to certain Proprietary Information because of his

position with Safelite (id., ¶¶ 202–09, 242–49, 289–93); each one entered into an

agreement with confidentiality, non-competition, and non-solicitation clauses (id.,

¶¶ 210–13, 250–60, 294–306); each one was “disgruntled” (id., ¶¶ 214, 261–62, 308);

and each one left Safelite for a position with Caliber (id., ¶¶ 234, 237, 272–73, 315–

16).

1. Billingsley — Caliber General Manager, Houston

In May 2021, after being passed over for a promotion within Safelite,

Billingsley began searching for new employment. (Id., ¶ 214.) He applied to Caliber

and was interviewed in early June. (Id., ¶¶ 215–16.) Billingsley had a second

interview the following month—this time, with Nowak. (Id., ¶ 222–25.) On July 30,

Caliber offered Billingsley a position as General Manager for auto glass operations

in Houston, Texas. (Id., ¶ 226.)

On August 1, Billingsley downloaded certain documents containing

Proprietary Information—including job descriptions and contact information for

Houston-area Safelite technicians—from the Safelite computer system. (Id., ¶ 227.)

He emailed those documents to his personal email address from his Safelite

address, then deleted any record from the “sent” and “deleted” folders in his Safelite

account. (Id., ¶¶ 228, 230–31.) Days later, Billingsley accepted Caliber’s offer. (Id.,

¶ 234.)

2. Lockridge — Caliber General Manager, Tucson

In 2020, Lockridge was assigned to be Store Manager at a Safelite location in

Tucson, Arizona. (Id., ¶ 261.) Safelite alleges that Lockridge viewed the assignment

as a “demotion and was upset at the change.” (Id., ¶ 262.) In the spring of 2021,

Lockridge contacted his old Tucson-colleague, Nowak, to inquire about joining

Caliber. (Id., ¶ 264.) Conversations progressed, and Caliber offered Lockridge a

position as General Manager in Tucson. (Id., ¶¶ 265, 268–271.)

In August 2021, Lockridge held a staff meeting at which he announced that

he had resigned from Safelite and was “going to work for his wife’s cleaning

company.” (Id., ¶¶ 273–73.) But, according to Safelite, Lockridge had already

accepted Caliber’s offer and never intended to work elsewhere. (Id., ¶¶ 272, 274–

75.)

After leaving Safelite, Lockridge is alleged to have made a series of

inculpatory remarks, including: that a Caliber lawyer had instructed Lockridge to

“lay low” for “legal reasons” (id., ¶ 280) and to say he worked in Phoenix, rather

than in Tucson (id., ¶ 281); that Lockridge had a list of Safelite technicians (id.,

¶ 282); and that Caliber had instructed Lockridge to use the list to recruit

technicians for Caliber in Tucson and Phoenix (id., ¶ 283).

3. Lynch — Caliber General Manager, Houston

In 2019, Lynch was assigned to be Store Manager at a Safelite location in

Shenandoah, Texas. (Id., ¶ 307.) Safelite alleges that Lynch viewed the assignment

as a “demotion and was upset at the change.” (Id., ¶ 308.) Lynch applied to join

Caliber’s auto glass operation and was later interviewed by Nowak, among others.

(Id., ¶¶ 310–12, 314.) In the summer of 2021, Lynch left Safelite and accepted a

position with Caliber. (Id., ¶¶ 315–16.) Lynch was employed as a General Manager

for Caliber in Houston, but represented that he worked in San Antonio. (Id.,

¶¶ 318–20.)

E. Billingsley, Lockridge, and Lynch—at Caliber and Nowak’s

direction—try to recruit Safelite technicians and customers.

After Billingsley, Lockridge, and Lynch were in position at Caliber, Caliber

and Nowak “deployed” them to solicit Safelite technicians in Houston, San Antonio,

and Tucson to join Caliber. (Id., ¶ 323.) Billingsley, Lockridge, and Lynch carried

out those instructions with the aid of Proprietary Information—including the

documents Billingsley downloaded and the list in Lockridge’s possession. (Id.,

¶¶ 324–27.) Indeed, Safelite alleges that “[t]hese documents helped Caliber, Nowak,

Billingsley, Lockridge, and Lynch identify the best Safelite technicians in Houston

and Tucson and focus their solicitations efforts on those individuals.” (Id., ¶ 327.)

Caliber and Nowak also directed Billingsley, Lockridge, and Lynch to solicit

Safelite customers to divert their business to Caliber’s new auto glass operation.

(Id., ¶ 363.) Safelite alleges that they used Proprietary Information to “target”

customers, as well. (Id., ¶ 365.)

II. PROCEDURAL BACKGROUND

Safelite filed suit in September 2021. (ECF No. 1.) Based on previous

iterations of the complaint, this Court entered agreed orders granting preliminary

injunctions against Nowak, Billingsley, and Lockridge (see ECF Nos. 93, 97, 99),

and denied motions to dismiss for lack of personal jurisdiction filed by Caliber,

Nowak, Billingsley, and Lockridge (ECF No. 85).

Through its Second Amended Complaint, Safelite now asserts the following

claims:

Count 1: Misappropriation of Trade Secrets (Federal)

Caliber, Billingsley, Lockridge

Count 2: Misappropriation of Trade Secrets (Ohio)

Caliber, Billingsley, Lockridge

Count 3: Misappropriation of Trade Secrets (Arizona)

Caliber, Lockridge

Count 4: Misappropriation of Trade Secrets (Texas)

Caliber, Billingsley

Count 5: Tortious Interference with Business Relationships

Caliber, Nowak, Billingsley, Lockridge, Lynch

Count 6: Tortious Interference with Contractual Relationships

Caliber, Nowak

Count 7: Conspiracy

Caliber, Nowak, Billingsley, Lockridge, Lynch

Count 8: Unjust Enrichment

Caliber, Nowak, Billingsley, Lockridge, Lynch

Count 9: Breach of Duty of Loyalty

Billingsley, Lockridge

Count 10: Conversion

Billingsley, Lockridge

Count 11: Aiding and Abetting

Caliber, Nowak

Count 12: Breach of Contract

Nowak

Count 13: Breach of Contract

Billingsley

Count 14: Breach of Contract

Lockridge

Count 151: Breach of Contract

Lynch

Count 16: Intentional Spoliation of Evidence

Caliber, Billingsley

(SAC, generally.) The matter is currently before the Court on several motions,

including:

• Lynch’s Motion to Dismiss pursuant to Rules 12(b)(2), 12(b)(3), and 12(b)(6)

(ECF No. 154);

• Caliber’s Motion to Dismiss pursuant to Rule 12(b)(2) and 12(b)(6) (ECF No.

152);

• Nowak’s Motion for Judgment on the Pleadings on Counts 7, 8, and 11 (ECF

No. 162); and

• Lockridge’s Motion for Judgment on the Pleadings on Counts 5, 7, 8, 9, and

10 (ECF No. 166).

The motions are fully briefed and ripe for review. Though the Court will address

each motion in full, they will be analyzed together to the extent the arguments

overlap.

III. LYNCH’S MOTION TO DISMISS

Lynch argues that this Court lacks personal jurisdiction over him, that venue

is improper, and that the Second Amended Complaint fails to state a claim. (ECF

No. 154.) The Court will address the first two arguments, which are unique to

Lynch, in this section.

1 The SAC identifies this as a second “Count Fourteen.” (SAC, 86.) The Court

here corrects the numbering for this and the following counts.

A. Rule 12(b)(2) — Personal Jurisdiction

Rule 12(b)(2) provides for dismissal of a lawsuit for lack of personal

jurisdiction. Fed. R. Civ. P. 12(b)(2). Lynch argues that this Court lacks authority

to exercise jurisdiction over him (ECF No. 154); Safelite disagrees (ECF No. 179).

Both have filed sworn affidavits in support of their position (see PAGEID # 1707–09,

1867–68). Neither discovery nor an evidentiary hearing is necessary to rule on the

motion.

The plaintiff bears the burden of proving that jurisdiction exists “over each

defendant independently.” Beydoun v. Wataniya Rests. Holding, Q.S.C., 768 F.3d

499, 504 (6th Cir. 2014) (quoting Days Inns Worldwide, Inc. v. Patel, 445 F.3d 899,

904 (6th Cir. 2006)); Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991).

When a court resolves a Rule 12(b)(2) motion on written submissions, “the burden

on the plaintiff is ‘relatively slight,’ and ‘the plaintiff must make only a prima facie

showing that personal jurisdiction exists in order to defeat dismissal.’” Air Prods. &

Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 549 (6th Cir. 2007) (quoting Am.

Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th Cir. 1988); Theunissen, 935 F.2d

at 1458) (cleaned up). A plaintiff can meet its burden by “establishing with

reasonable particularity sufficient contacts between [the defendant] and the forum

state to support jurisdiction.” Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d

883, 887 (6th Cir. 2002) (quoting Provident Nat’l Bank v. Cal. Fed. Sav. Loan Ass’n,

819 F.2d 434, 437 (3d Cir. 1987)). In the absence of an evidentiary hearing, courts

apply the prima facie standard weighing the evidence in the light most favorable to

the plaintiff. Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998).

Nonetheless, the court may consider a defendant’s undisputed factual assertions.

Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir. 2012).

Personal jurisdiction over a defendant exists “if the defendant is amenable to

service of process under the [forum] state’s long-arm statute and if the exercise of

personal jurisdiction would not deny the defendant[ ] due process.” Bird v. Parsons,

289 F.3d 865, 871 (6th Cir. 2002) (internal quotation omitted) (alterations in

original). Safelite has met its burden of showing that personal jurisdiction over

Lynch exists. The Second Amended Complaint alleges that Lynch had a long

employment history with Safelite, by virtue of which he regularly participated in

trainings and leadership meetings based out of Ohio, received his compensation and

benefits from Ohio, accessed information stored in Ohio, and entered into an

agreement with continuing obligations governed by Ohio law. (SAC, ¶¶ 285–306.) It

further alleges that Lynch engaged in the same tortious conduct, in furtherance of

the same tortious scheme, as his co-defendants. (Id., ¶¶ 307–320, 324–27.) Though

the Court conducts its analysis as to each defendant independently, there is no

meaningful difference between the jurisdictional allegations made as to Lynch and

his co-defendants. The Court finds that it may properly exercise personal

jurisdiction over Lynch in this matter for the same reasons as those discussed in the

January 21, 2022 Opinion & Order. (See ECF No. 85, 5–6, 7–8.)

Lynch’s motion to dismiss for lack of personal jurisdiction is DENIED.

B. Rule 12(b)(3) — Improper Venue

Lynch also argues that, under Rule 12(b)(3), venue is not proper. Having

concluded that this Court may exercise personal jurisdiction over Lynch in this

action, venue is proper. See 28 U.S.C. § 1391; Atl. Marina Constr. Co., Inc. v. U.S.

Dist Court for W. Dist. of Tex., 571 U.S. 49, 57 (2013) (explaining that “venue is

proper so long as the requirements of § 1391(b) are met”).

Lynch’s motion to dismiss for improper venue is DENIED.

IV. CALIBER’S MOTION TO DISMISS

Caliber’s Motion has two components: First, that this Court lacks personal

jurisdiction over it; and next, that the Second Amended Complaint fails to state a

claim. (ECF No. 152.) Because the personal jurisdiction argument is unique to

Caliber, the Court will address it here.

Caliber argues that the Second Amended Complaint should be dismissed for

want of personal jurisdiction, under Rule 12(b)(2). (Id.) Caliber made the same

argument in its motion to dismiss the First Amended Complaint. (See ECF No. 34.)

The Court found Caliber’s argument unavailing and denied the motion. (See

January 21, 2022 Opinion & Order, 7–8.) Accordingly, the personal-jurisdiction

portion of Caliber’s instant Motion to Dismiss will be construed as a motion for

reconsideration. See League of Women Voters of Ohio v. Blackwell, 432 F. Supp. 2d

734, 738 (N.D. Ohio 2006), rev’d in part on other grounds, 548 F.3d 463 (6th Cir.

2008) (“[A] motion to dismiss an amended complaint is no more than a motion for

reconsideration to the extent it simply restates arguments already considered and

rejected with respect to the original complaint.”).

While the Federal Rules of Civil Procedure do not expressly provide for

motions to reconsider interlocutory orders, “[d]istrict courts have authority both

under common law and Rule 54(b) to reconsider interlocutory orders and to reopen

any part of a case before entry of final judgment.” Rodriguez v. Tenn. Laborers

Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir. 2004); see also In re Life

Investors Ins. Co. of Am., 589 F.3d 319, 326 n. 6 (6th Cir. 2009) (“[A] district court

may always reconsider and revise its interlocutory orders while it retains

jurisdiction over the case.”). District courts may “afford such relief from

interlocutory orders as justice requires.” Rodriguez, 89 F. App’x at 959 (internal

quotation marks and brackets omitted). Courts traditionally find justification for

reconsidering interlocutory orders only when there is (1) an intervening change of

controlling law; (2) new evidence available; or (3) a need to correct clear error or

prevent manifest injustice. Louisville/Jefferson Cnty. Metro Gov’t v. Hotels.com,

L.P., 590 F.3d 381, 389 (6th Cir. 2009) (citing Rodriguez, 89 F. App’x at 959). This

standard “vests significant discretion in district courts.” Rodriguez, 89 F. App’x at

959 n. 7.

Caliber submits that the January 21, 2022 Opinion & Order “did not correctly

separate Caliber’s alleged contacts with Safelite from Caliber’s contacts with the

State of Ohio[.]” (ECF No. 152, 10 (emphasis in original).) In Caliber’s view,

without any “assertion that Caliber itself committed any tortious acts within Ohio,

hired any Safelite employees based in Ohio, accessed any Safelite computers located

in Ohio, conspired with the other defendants to deprive Safelite of market share

among Ohio consumers, or even caused Safelite to lose a single customer in Ohio[,]”

this Court cannot exercise specific jurisdiction over it. (Id.) In other words, Caliber

disagrees with the Court’s finding that the Complaint (then First Amended form,

and now Second) sufficiently alleges that the “purposeful availment” and “arising

from” prongs of the specific jurisdiction test are satisfied. (See January 21, 2022

Opinion & Order, 7–8.) But Caliber’s disagreement with the Court is not evidence of

clear error. See Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, L.L.P., No. 2:04-

CV-715, 2007 WL 3051150, at *1 (S.D. Ohio Oct. 16, 2007) (Sargus, J.) (“Motions for

reconsideration should not be used . . . for mere disagreement with a district court’s

opinion.”). Caliber offers no other argument in favor of reconsidering the Court’s

earlier ruling.

Caliber’s motion for reconsideration is DENIED.

V. FAILURE TO STATE A CLAIM

Caliber, Lynch, Lockridge, and Nowak have moved to dismiss portions of the

Second Amended Complaint for failure to state a claim.2 In particular, they argue

that: Counts 5 through 10 are preempted by the Uniform Trade Secrets Act; Count

7 (Conspiracy) is barred by the intra-corporate conspiracy doctrine; Count 11

(Aiding and Abetting) is not viable under Ohio law; and Count 16 (Intentional

Spoliation) is not sufficiently alleged as to Caliber.

2 Due to the differences in the movants’ procedural posture, the motions were

made under both Rules 12(b)(6) and 12(c). Motions made under those two rules are

analyzed in the same manner. See Tucker, 539 F.3d at 549. In particular, Caliber

argues that Safelite’s Second Amended Complaint fails to state a claim as to Counts

5, 6, 7, 8, 11, and 16. (ECF No. 152 (citing Fed. R. Civ. P. 12(b)(6)).) Except as to

Count 16, Caliber failed to raise this available defense in its earlier Motion to

Dismiss. See Fed. R. Civ. P. 12(g)(2), 12(h)(2)(B). The Court accordingly construes

Caliber’s motion (except as to Count 16) as one made under Rule 12(c). See

Satkowiak v. Bay Cnty. Sheriff’s Dep’t, 47 F. App’x 376, 377 n.1 (6th Cir. 2002)

(explaining that it is a “technical error” having “no impact on [the court’s] review” to

mis-label a Rule 12(c) motion as one made under Rule 12(b)(6)).

A. Standard of Review

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim

with sufficient specificity to “give the defendant fair notice of what the claim is and

the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal alteration and quotations omitted). A complaint which falls short of

the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). The Supreme Court has explained:

To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. The

plausibility standard is not akin to a probability requirement, but it

asks for more than a sheer possibility that a defendant has acted

unlawfully. Where a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations

omitted). The complaint need not contain detailed factual allegations, but it must

include more than labels, conclusions, and formulaic recitations of the elements of a

cause of action. Directv, Inc. v. Treesh, 487 F.3d, 471, 476 (6th Cir. 2007).

“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 555).

B. Safelite’s tort claims are preempted to the extent they are

based on alleged misappropriation of the Proprietary

Information.

Safelite brings claims for misappropriation of trade secrets under federal,

Ohio, Texas, and Arizona law. (See SAC.) Ohio, Texas, and Arizona have all adopted

some form of the Uniform Trade Secrets Act (“UTSA”). The UTSA—which, in this

respect, was unaltered by the states’ legislatures—“displace[s] conflicting tort,

restitutionary, and other [state laws] providing civil remedies for misappropriation

of a trade secret.” Ohio Rev. Code § 1333.67(A); see also Ariz. Rev. Stat. Ann. § 44-

407(A), Tex. Civ. Prac. & Rem. Code § 134A.007(a). “The Ohio Supreme Court has

yet to speak to the scope of the OUTSA’s preemption clause.” Stolle Mach. Co., LLC

v. RAM Precision Industries, 605 F. App’x 473, 484 (6th Cir. 2015) (quotation

omitted); see also Sal’s Heating & Cooling, Inc. v. BERS Acquisition Co., 192 N.E.3d

537, 547 (Ohio Ct. App. May 26, 2022) (applying the rule adopted in Stolle), appeal

denied, 196 N.E.3d 856 (table) (Ohio 2022). But the Sixth Circuit “has adopted a

broader interpretation of OUTSA preemption, finding that it ‘should be understood

to preempt not only causes of action for misappropriation of trade secrets but also

causes of action that are based in some way on misappropriation of trade secrets.’”

Campfield v. Safelite Grp., Inc., No. 15-CV-2733, 2021 WL 1215869, at *13 (S.D.

Ohio Mar. 31, 2021) (Watson, J.) (quoting Stolle, 605 F. App’x at 485). Under this

standard, a claim will be preempted if it is “no more than a restatement of the same

operative facts that form[ ] the basis of the plaintiff’s statutory claim for trade

secret misappropriation.” Stolle, 605 F. App’x at 485 (quoting Thermodyn Corp. v.

3M Co., 593 F. Supp. 2d 972, 989 (N.D. Ohio 2008)) (cleaned up). Nevertheless, a

claim will survive preemption to the extent it has an “independent factual basis.”

Id. (quoting Miami Valley Mobile Health Servs., Inc. v. ExamOne Worldwide, Inc.,

852 F. Supp. 2d 925, 940 (S.D. Ohio 2012) (Rice, J.)).

Caliber, Nowak, Lockridge, and Lynch argue that certain of Safelite’s

asserted tort claims are preempted by the UTSA. (ECF Nos. 152, 154, 162, and

166.3) In short, their arguments prevail to the extent that Counts 5 through 10 are

based on the misappropriation of Safelite’s Proprietary Information.4

1. Count 5 (Tortious Interference with Business

Relationships)

In Count 5, Safelite alleges that each Defendant tortiously interfered with

Safelite’s business relationships by “unlawfully target[ing] and unlawfully

solicit[ing] Safelite” employees and customers. (SAC, ¶¶ 480, 485.) Caliber,

Lockridge, and Lynch argue that Count 5 is preempted by the UTSA. (ECF Nos.

152, 154, 162, 166.)

3 Caliber argues that Counts 5, 6, 7, and 8 are preempted. (ECF No. 152.)

Lynch makes the same argument as to Counts 5, 7, and 8. (ECF No. 154.) Nowak

argues that Counts 7 and 8 are preempted. (ECF No. 162.) Finally, Lockridge

argues that 5, 7, 8, 9, and 10 are preempted. (ECF No. 166.)

4 Safelite argues with Nowak and Lockridge about an apparent conflict

between Arizona’s UTSA and Ohio’s UTSA—namely, whether tort claims are

preempted even if the subject information does not meet the statutory definition of

a trade secret. (See ECF Nos. 178, 180, 186, 193.) Safelite has persuaded the Court

that a conflict exists. Compare Stolle, 605 F. App’x at 484 (adopting “the (broader)

majority rule” that the Ohio UTSA “abolish[es] all other causes of action for theft,

misuse, or misappropriation of any confidential or secret information”) with Orca

Commc’ns Unltd., LLC v. Noder, 337 P.3d 545, 547 (Ariz. 2014) (concluding that the

Arizona UTSA does not displace “common-law claims for misuse of confidential

information that does not fall within AUTSA’s definition of ‘trade secret’”). But

Safelite stops short of explaining why that conflict matters, or advocating for the

application of Arizona law. (See ECF Nos. 178, 180.) The Court declines to make

arguments on Safelite’s behalf.

“As an analytical tool, partial preemption allows a court to parcel out the

common law theory designed to remedy a separate wrong from misappropriation of

trade secrets.” Office Depot, Inc. v. Impact Office Prods., LLC, 821 F. Supp. 2d 912,

921 (N.D. Ohio 2011). That tool is useful here. The ‘unlawful targeting’ in Count 5

refers to Defendants’ alleged use of Safelite’s Proprietary Information (id., ¶¶ 481,

486)—whereas the ‘unlawful solicitation’ refers to Defendants’ efforts to recruit

Safelite employees, or induce Safelite customers, to abandon their old relationship

in favor of a new one with Caliber (id., ¶¶ 483, 488). In other words, the two

component parts of the claim have different degrees of “congruity” with trade-secret

misappropriation. Premier Dealer Servs., Inc. v. Allegiance Adm’s, LLC, No. 18-CV-

735, 2019 WL 79038, at *6 (S.D. Ohio Jan. 2, 2019) (Sargus, J.). In light of their

histories with Safelite, it is reasonable to infer that Lockridge and Lynch had

personal connections with Safelite employees and customers, such that soliciting

them did not require reference to the Proprietary Information. So, while the

‘targeting’ component of Count 5 is based on the same operative facts comprising

trade-secret misappropriation and is preempted, the claim survives to the extent it

is based on interference unrelated to the Proprietary Information. See Miami

Valley, 852 F. Supp. 2d at 941 (denying defendants’ motion to dismiss tortious

interference claims that “allege far more than the wrongful use of clients’ contact

information”); Office Depot, 821 F. Supp. 2d at 922 (same, to the extent tortious

interference claim was based on defendants’ obligations arising under a separate

non-compete clause).

Caliber, Lockridge, and Lynch’s motions as to Count 5 are GRANTED in

part and DENIED in part.

2. Count 6 (Tortious Interference with Contractual

Relationships)

In Count 6, Safelite alleges that Caliber and Nowak tortiously interfered with

its contractual relationships by recruiting the individual Defendants to violate their

non-competition agreements. (SAC, ¶¶ 495–96.) Count 6 further alleges that

Caliber interfered by receiving and using the Proprietary Information. (SAC, ¶ 495.)

In this latter regard, Count 6 restates the operative facts that support Safelite’s

UTSA claim and is, accordingly, preempted to that extent.

Caliber’s motion as to Count 6 is GRANTED in part and DENIED in part.

3. Count 7 (Conspiracy)

Count 7 alleges that each Defendant conspired to harm Safelite. (SAC,

¶¶ 499–505.) The parties do not dispute that a conspiracy claim is valid only when

based on an “underlying unlawful act.” (See, e.g., ECF No. 174 (quoting Ohio

Bureau of Workers’ Comp. v. MDL Active Duration Fund, Ltd., 476 F. Supp. 2d 809,

825 (S.D. Ohio 2007) (Graham, J.).) And it is beyond dispute that a conspiracy claim

is preempted when the underlying unlawful act is the misappropriation of trade

secrets—indeed, by its nature, such a claim “rises or falls based on whether the

defendant is found to have misappropriated a trade secret.” Murray Energy

Holdings Co. v. Bloomberg, L.P., No. 15-CV-2845, 2016 WL 3355456, at *11 (S.D.

Ohio June 17, 2016) (Marbley, J.) (quotation and citation omitted). So, once again,

to the extent the Count 7 is based on Defendants’ alleged misappropriation or

misuse of the Proprietary Information, it is preempted. But to the extent it is based

on the surviving components of Counts 5 and 6, the conspiracy claim also survives.

Caliber, Nowak, Lockridge, and Lynch’s motions as to Count 7 are

GRANTED in part and DENIED in part.

4. Count 8 (Unjust Enrichment)

Safelite next alleges an unjust enrichment claim against each Defendant.

(SAC, ¶¶ 506–13.) Unlike Counts 5, 6, and 7, which rely in part on factual bases

independent of trade-secret misappropriation, Count 8 is “no more than a

restatement” of Safelite’s UTSA claim. Stolle, 605 F. App’x at 485 (citation omitted).

Safelite argues that Count 8 should not be dismissed because it is pleaded as an

alternative theory of recovery to trade-secret misappropriation. (See, e.g., ECF No.

180, 8 (citing Fed. R. Civ. P. 8(d)(3)).) But, as this Court has previously explained,

“[i]t would be incongruent to hold that [certain] claims are preempted yet allow

them to be pleaded in the alternative.” Murray Energy, 2016 WL 3355456, at *11.

Caliber, Nowak, Lockridge, and Lynch’s motions as to Count 8 are

GRANTED.

5. Count 9 (Breach of Duty of Loyalty)

In Count 9, Safelite alleges that Billingsley and Lockridge breached their

duty of loyalty to the company by:

misappropriating Safelite’s confidential, proprietary, and trade secret

information to Caliber while still employed with Safelite, working with

Caliber to develop a competing auto glass repair and replacement

business based on Safelite’s confidential, proprietary, and trade secret

information, and soliciting employees to leave their employment with

Safelite to go work for Caliber, all while still employed by Safelite[.]

(SAC, ¶ 516.) Lockridge argues that the claim is preempted. (ECF No. 166, 9.)

Except to the extent the claim is based on the independent factual basis of soliciting

Safelite employees, Lockridge is correct.

Lockridge’s motion as to Count 9 is GRANTED in part and DENIED in

part.

6. Count 10 (Conversion)

Count 10 alleges that Billingsley and Lockridge converted the Proprietary

information. (SAC, ¶¶ 518–22.) The claim relies on the same operative facts as

trade-secret misappropriation and is, accordingly, preempted. See Campfield, 2021

WL 1215869, at *13 (finding counterclaim for conversion of materials containing

proprietary information preempted).

Safelite argues for the opposite conclusion by noting that it seeks return of

physical property from Lockridge—i.e., the list. (ECF No. 178, 11.) District courts

within the Sixth Circuit have rejected this argument where, as here, “the physical

property [a plaintiff] alleges to have been stolen derived its primary, if not entire,

value from the trade secrets contained therein.” Hauck Mfg. Co. v. Astec Indus.,

Inc., 375 F. Supp. 2d 649, 661 (E.D. Tenn. 2004).

Lockridge’s motion as to Count 10 is GRANTED.

C. The intra-corporate conspiracy doctrine does not bar the

remainder of Count 7 (Conspiracy).

Caliber, Nowak, Lockridge, and Lynch next argue that the non-preempted

remainder of Count 7 (Conspiracy) is barred by the intra-corporate conspiracy

doctrine. (ECF Nos. 152, 154, 162, 166.) Safelite responds, arguing that the doctrine

does not apply because the conspiracy is alleged to have occurred before one or more

of the individual Defendants worked for Caliber. (ECF Nos. 174, 179, 180, 182.) The

Court agrees with Safelite.

Under Ohio law, a civil conspiracy requires proof of a malicious combination

by at least two people, an injury, and the existence of an unlawful act that is

independent from the conspiracy itself. See Renner v. E. Mfg. Corp., No. 2001-P-

0135, 2002 WL 31744760, at *7 (Ohio Ct. App. Dec. 6, 2002). But,

“a corporation cannot conspire with its own agents or employees.” Cap

City Dental Lab, LLC v. Ladd, No. 2:15-CV-2407, 2016 WL 4573993, at

*7 (S.D. Ohio Sept. 1, 2016). As the Sixth Circuit put it when

discussing the federal doctrine, it “is the basic law of conspiracy that

you must have two persons or entities to have a conspiracy. A

corporation cannot conspire with itself any more than a private

individual can, and it is the general rule that the acts of the agent are

the acts of the corporation.” Hull v. Cuyahoga Valley Joint Vocational

Sch. Dist. Bd. of Educ., 926 F.2d 505, 509 (6th Cir. 1991) (citing Nelson

Radio & Supply Co., Inc. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.

1952)).

Cheryl & Co. v. Krueger, 536 F. Supp. 3d 182, 214 (S.D. Ohio 2021) (Sargus, J.).

Nonetheless, “[i]f the elements of [civil conspiracy] were satisfied when at least one

of the [individual defendants] was not yet an agent of [the corporate defendant], the

intra-corporate conspiracy doctrine would not bar the claim[.]” Id.

Here, Safelite alleges that Defendants conspired to tortiously interfere with

its business and contractual relationships. (SAC, ¶ 501.) Notably, Safelite alleges

that the conspiracy existed both “[d]uring and after Nowak’s, Billingsley’s,

Lockridge’s, and Lynch’s employment with Safelite[.]” (Id., ¶ 500.) The Second

Amended Complaint further alleges that: (i) Nowak played a role in interviewing or

recruiting Billingsley, Lockridge, and Lynch (id., ¶¶ 219, 264–65, 311); and that

(ii) Billingsley, Lockridge, and Lynch each accepted their offer of employment from

Caliber before separating from Safelite (id., ¶¶ 234–35, 272, 315). What’s more, the

nature of Safelite’s claims on the whole—that Defendants joined forces in order to

build a competing business—coupled with the rapidity with which Defendants are

alleged to have actively engaged in the tortious conduct following their hire (see,

e.g., id., ¶ 323), allows a reasonable inference that the conspiracy began before one

or more of the individual Defendants were employed by Caliber. Accordingly, the

facts alleged, when taken as true, plausibly state a claim for civil conspiracy.

Caliber, Nowak, Lockridge, and Lynch’s motions as to Count 7 are DENIED,

except as discussed above.

D. Safelite fails to state a claim for aiding and abetting.

In Count 11, Safelite alleges that Caliber and Nowak aided and abetted

Billingsley and Lockridge in breaching their duties of loyalty to the company. (SAC,

¶¶ 523–29.) Caliber and Nowak move for judgment on Count 11 on the grounds that

Ohio law does not recognize a cause of action for aiding and abetting. (ECF No. 162,

9 (citing, inter alia, Peter D. Brown Trust v. Shriver, No. 1:17-cv-280, 2018 WL

776365, at *2 (S.D. Ohio Feb. 8, 2018) (Dlott, J.) (explaining that “Ohio law does not

recognize claims for aiding and abetting tortious conduct” and collecting cases).)

Safelite responds to both motions as follows:

While Safelite believes Ohio law should apply to the majority of claims

at issue in this case, Defendants have not yet stipulated to this.

Anticipating this, Safelite pled this claim in the alternative. See

Kramer v. Plan, No. 2:21-cv-5501, 2022 U.S. Dist. LEXIS 89844, at *3

(S.D. Ohio May 10, 2022) (noting that “the Civil Rules allow a plaintiff

to plead in the alternative” (internal quotation marks and citations

omitted)). Because aiding and abetting is a cause of action under both

Texas and Arizona law, and choice of law has yet to be decided, this

claim survives.

(ECF No. 174, 18 (footnote omitted). See also ECF No. 180, 10.) Safelite omits a

critical point: The Court has not decided a choice-of-law question because no choice-

of-law question has been raised. That analysis would not only require the Court to

find that a conflict exists, but also to evaluate several factors to determine which

state has the “most significant relationship” to the case. See, e.g., Novus Grp., LLC

v. Prudential Fin., Inc., 2:19-cv-208, 2019 WL 4452708, at *9–10 (S.D. Ohio Sept.

17, 2019) (Sargus, J.) (analyzing factors to determine whether Ohio or New Jersey

had the most significant relationship to the UTSA case) (citing RESTATEMENT

(SECOND) OF CONFLICT OF LAWS § 145 (AM. LAW INST. 1971)). Yet, Safelite fails to

present case-specific facts going to those factors, argument on their application, or

authority supporting reservation of this issue for a later stage of litigation. Cf.

McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“Issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed argumentation,

are deemed waived. It is not sufficient for a party to mention a possible argument in

the most skeletal way, leaving the court to put flesh on its bones.”) (quotation

omitted) (cleaned up).

Where, as here, “‘neither party argues that the forum state’s choice-of-law

rules require the court to apply the substantive law of another state, the court

should apply the forum state’s substantive law.’” Wilkes Assocs. v. Hollander Indus.

Corp., 144 F. Supp. 2d 944, 949 n.4 (S.D. Ohio 2001) (quoting ECHO, Inc. v. Whitson

Co., Inc., 52 F.3d 702, 707 (7th Cir. 1995)); see also Super Sulky, Inc. v. U.S.

Trotting Ass’n, 174 F.3d 733, 741 (6th Cir. 1999) (“A federal court exercising

supplemental jurisdiction over state law claims is bound to apply the law of the

forum state to the same extent as if it were exercising its diversity jurisdiction.”).

Accordingly, Ohio law applies to Count 11, which fails.

Caliber and Lockridge’s motions as to Count 11 are GRANTED.

E. Safelite plausibly alleges a claim for intentional spoliation

against Caliber.

Finally, in Count 16, Safelite alleges that Caliber and Billingsley committed

intentional spoliation. (SAC, ¶¶ 585–97.) The supporting facts are unique to this

claim. Safelite alleges that, after this litigation commenced, Billingsley “was

instructed by counsel not to destroy any documents or communications that could

be relevant[.]” (Id., ¶ 590.) Nonetheless, Billingsley “used his Caliber-issued laptop”

to “willfully destroy[ ] documents from his [personal] email account after this

litigation commenced that are relevant to Safelite’s” claims. (Id., ¶¶ 589–91.)

Safelite further alleges that “Billingsley[’s] willful destruction of evidence was an

act performed in the course and scope of his employment as a managerial employee

of Caliber.” (Id., ¶ 594.)

Ohio is one of the few states to recognize a cause of action for intentional

spoliation. Elliott-Thomas v. Smith, 110 N.E.3d 1231, 1233 (Ohio 2018). To succeed,

a plaintiff must prove:

(1) pending or probable litigation involving the plaintiff, (2) knowledge

on the part of defendant that litigation exists or is probable, (3) willful

destruction of evidence by defendant designed to disrupt the plaintiff’s

case, (4) disruption of the plaintiff’s case, and (5) damages proximately

caused by the defendant’s acts

Smith v. Howard Johnson Co., Inc., 615 N.E.2d 1037, 1038 (Ohio 1993). Caliber

argues that Safelite fails to allege that Caliber “willfully” destroyed any evidence.

(ECF No. 152, 19–20.) Safelite responds by noting that an employer can be held

liable for its employees’ tortious conduct when it is committed in the course and

scope of employment, or by ratification.5 (ECF No. 174, 18–19.)

In Williams v. Clerac, LLC, --- F. Supp. 3d ---, 2022 WL 9992507 (N.D. Ohio

Oct. 17, 2022), the Northern District summarized Ohio law on employers’ liability

for employees’ torts. As the Williams court explained, respondeat superior “makes

an employer . . vicariously liable of the torts of its employees” when those torts are

“committed within the scope of employment.” Id., at *3 (quoting Auer v. Paliath, 140

Ohio St. 3d 276, 278 (Ohio 2014)). Although the “general rule [is] that intentional

torts fall outside the scope of employment[,]” there are exceptions, such as “if the

employee’s conduct was calculated to facilitate or promote the business for which

the employee was employed[,]” or “if an employer specifically and explicitly ratifies

the employee’s tortious act[.]” Id. at *3–4 (quotations and citations omitted)

(alterations omitted). Here, Safelite alleges Billingsley willfully destroyed

documents relevant to its case against Billingsley and Caliber, while Billingsley was

working for Caliber, on a machine issued by Caliber. These facts fail to plausibly

allege that Caliber ratified Billingsley’s conduct. See id., at *4 (noting that “[t]he

5 Safelite’s argument does not comply with the Court’s Local Rules because it

is made without any citation to authority. See S.D. Ohio Civ. R. 7.2(a)(1) (“All

motions and applications tendered for filing shall be accompanied by a

memorandum in support thereof that shall be a brief statement of the grounds, with

citation of authorities relied upon.”).

mere failure to terminate the employee for the tortious act does not constitute

ratification”) (quotation and citation omitted). But, at this stage of the proceedings,

Safelite plausibly states a claim that Billingsley acted within the course and scope

of his employment.

Caliber’s motion as to Count 16 is DENIED.

VI. CONCLUSION

For the reasons set forth above, Lynch’s motion to dismiss for lack of personal

jurisdiction or improper venue is DENIED; Caliber’s motion for reconsideration is

DENIED; Caliber, Nowak, Lockridge, and Lynch’s motions to dismiss, or for

judgment on the pleadings, are GRANTED in part and DENIED in part. The

following claims are hereby DISMISSED:

• Count 5 (Tortious Interference with Business Relationships), to the

extent it is based on misappropriation of the Proprietary Information;

• Count 6 (Tortious Interference with Contractual Relationships), to the

extent it is based on misappropriation of the Proprietary Information;

• Count 7 (Conspiracy), to the extent it is based on misappropriation of

the Proprietary Information;

• Count 8 (Unjust Enrichment);

• Count 9 (Breach of Duty of Loyalty), to the extent it is based on

misappropriation of the Proprietary Information;

• Count 10 (Conversion); and

• Count 11 (Aiding and Abetting).

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT J’UDGE