United States District Court, S.D. Ohio, Western Division
J. Dlott United States District Court
matter is before the Court on the following filings:
Plaintiffs' Motion to Dismiss Pursuant to FRCP 41(a)(2)
filed by HCMM, Inc., Ripberger, Maguire & Matthews, Inc.,
and Patrick Maguire (the “Ohio Plaintiffs”) (Doc.
53); Plaintiffs' Motion to Dismiss Pursuant to FRCP
41(a)(2) filed by Concepta Business Solutions, LLC and David
Pineda (the “Florida Plaintiffs”) (Doc. 54); and
Defendants' Motion for Attorneys' Fees and Costs
(Doc. 55). The Court GRANTS each Motion on the terms set
Plaintiff HCMM, Inc. (“HCMM”) sued Defendant Bret
Tubergen (“Tubergen”) in the Hamilton County,
Ohio Court of Common Pleas on February 9, 2016. That action
was removed to this Court by Tubergen on February 11, 2016.
HCMM filed a voluntary dismissal pursuant to Fed.R.Civ.P.
41(a) the next day. See HCMM, Inc. v. Tubergen, Case
No. 1:16-cv-00302 (S.D. Ohio filed Feb. 11, 2016).
Plaintiffs then filed this lawsuit on March 29, 2016
asserting nineteen claims against Defendants Cogent
Analytics, LLC, Robert D. Braiman, Robin Braiman, Bret
Tubergen, Gerald C. Williams, and William Shapcott
(“Defendants”) (Doc. 1) and seeking a Temporary
Restraining Order, Preliminary and Permanent Injunctive
Relief, and money damages.
this action, Plaintiffs claim that Defendants were
misappropriating five trade secrets from Huntington, Copper,
Moody & Maguire, Inc. (“Huntington Copper”)
and/or HCMM, both Ohio companies, and two trade secrets from
Concepta Business Solutions, LLC (“Concepta”).
The alleged trade secrets were identified as the following
a. Huntington Copper's 2010 Financial Information;
b. Huntington Copper's and HCMM's sales pitch (the
c. Huntington Copper's and HCMM's sales documents
d. Huntington Copper's alleged analytical software
e. Huntington Copper's alleged sales software
f. Concepta's alleged analytical software
g. Concepta's alleged sales software (“SPEED
Since the beginning of this litigation, Plaintiffs have
maintained that this case is about these alleged trade
secrets. (See, e.g., Memorandum of Law in
Support of Motion to Disqualify at 14, Doc. 12 at PageID
March 30, 2016, the Court held a hearing on Plaintiffs'
request for a Temporary Restraining Order. The Court denied
Plaintiffs' request for a Temporary Restraining Order and
set a Status Conference for June 6, 2016 and a Preliminary
Injunction Hearing for July 7, 2016. (Minute Order dated
March 30, 2016.) The Court also allowed the parties to engage
in expedited discovery in preparation for the Preliminary
April 14, 2016, Plaintiff David Pineda moved to disqualify
Defendants' counsel. (Doc. 12.) The Court denied that
Motion on June 23, 2016. (Doc. 32.)
May 24, 2016, Defendant Robin Braiman filed a Motion to
Dismiss for Lack of Personal Jurisdiction. (Doc. 19.) That
Motion has been fully briefed. (Docs. 26, 31.)
May 31, 2016, all Defendants other than Robin Braiman filed
Answers to the Complaint. (Docs. 21, 22, 23, 24 & 25.) In
addition, Tubergen filed a counterclaim against HCMM based on
unpaid commissions. That counterclaim remains pending.
June 6, 2016, the Court held a Status Conference. At that
Status Conference, the Court reset the Preliminary Injunction
Hearing for August 8, 2016. (Minute Entry dated June 6,
June 17, 2016, Defendants filed a Motion for Judgment on the
Pleadings as to all claims asserted by Plaintiff David
Pineda. (Doc. 30.) In arguing to the Court that
Defendants' counsel should be disqualified, Plaintiff
Pineda contended that he had asserted claims under seven
counts of the Complaint. (Reply Memorandum in Support of
Motion of Plaintiff Pineda to Disqualify Counsel at 11, Doc.
18 at PageID 623.) However, in opposing the Motion for
Judgment on the Pleadings, Plaintiff Pineda then took the
position-without explanation-that he had only asserted two
claims in this action. (Memorandum in Opposition to
Defendants' Motion for Judgment on the Pleadings at 1,
Doc. 33 at PageID 934.) That Motion has been fully briefed.
(Docs. 33, 37.)
Over four days during the week of June 20, 2016, and
following expedited written discovery, the depositions of
Plaintiff David Pineda, Plaintiff Patrick Maguire, Plaintiff
HCMM's President Julie Maguire, and Jeff Bittner, a
former employee of all three corporate Plaintiffs, were
partially completed. Despite claiming in this case that their
alleged trade secrets are in issue, and despite their alleged
trade secrets having been discussed at length in
Plaintiffs' depositions, Plaintiffs nonetheless filed the
unredacted and unsealed transcripts of those depositions, in
their entirety, on August 16 and 17, 2016. (Docs. 39, 41, 43
& 45.) On July 5, 2016, Plaintiffs filed a Motion to
Continue the August 8, 2016 Preliminary Injunction Hearing.
(Doc. 34.) The Court granted the Motion to Continue and
continued the Preliminary Injunction Hearing to the week of
October 17, 2016. (Docs. 35 & 36.)
August 15, 2016, Plaintiffs filed a Motion for Leave to File
First Amended Verified Complaint. (Doc. 38.) In their Motion,
Plaintiff sought to: (1) remove a number of Plaintiffs'
own claims from the case - particularly including a number of
their trade secret allegations; (2) remove Robin Braiman from
the case completely by not including her as a Defendant in
their Proposed Amended Complaint; and (3) continue forward
with a number of previously alleged claims. More
specifically, in that Motion, Plaintiffs represented to the
Court the following:
Through the course of … depositions, it became clear
that Plaintiffs would have difficulty establishing the trade
secret status of some of the documents and information as
alleged in Plaintiffs' Verified Complaint. Specifically,
the ability to advance the claims regarding SPEED, FACS,
CBSA, the Pitch, and Documents was called into question by
[Plaintiffs' own] deposition testimony….
(Memorandum in Support of Motion for Leave at 5, Doc. 38 at
PageID 969 (internal citations omitted).)
August 30, 2016, Defendants filed a Motion for Status
Conference to address certain issues related to the effect,
if any, of Plaintiffs' Motion for Leave to File First
Amended Verified Complaint on the upcoming schedule of
hearings, briefing, and discovery. (Docs. 47 & 47-1.)
September 2, 2016, the Court entered a text order staying the
deadlines to respond to any pending motion. During a
telephonic Status Conference on September 7, 2016, the Court
converted the Preliminary Injunction Hearing scheduled for
October 17, 2016 into a Settlement Conference.
September 30, 2016, G. Antonio Anaya, at that time counsel
for Plaintiffs, filed a Motion to Withdraw as Trial Counsel
for Plaintiffs. (Doc. 51.) The stated basis for Mr.
Anaya's Motion was that it was “imperative”
that he withdraw in order to “maintain compliance with
the Ohio Rules of Professional Conduct.” (Doc. 51 at
PageID 2248.) Mr. Anaya's Affidavit in support of the
Motion to Withdraw was filed under seal.
Court held an ex parte conference with Mr. Anaya on
October 11, 2016 to address the evidentiary support for his
Motion. During that Conference, Mr. Anaya advised the Court
that the basis for his request to withdraw was irreconcilable
differences with his clients.
October 13, 2016, the Court entered its Order Granting G.
Antonio Anaya's Motion to Withdraw as Counsel for
Plaintiffs. (Doc. 52.) In addition, that Order granted
Plaintiffs sixty (60) days-until December 12, 2016-to either
obtain new counsel or, for the individual Plaintiffs, to opt
to represent themselves. The Order required Plaintiffs to
file either a Notice of Appearance or Notice of Pro
Se Representation depending on which option was selected
and further provided that, if no such Notice was received,
the claims asserted by that party would be dismissed.
December 12, 2016, the Ohio Plaintiffs' filed a Motion to
Dismiss their own claims pursuant to Rule 41(a)(2) of the
Federal Rules of Civil Procedure. (Doc. 53.) The stated basis
for the Motion to Dismiss was that, although attorneys would
be willing to pursue their claims on an hourly basis, the
Ohio Plaintiffs had not found any attorney willing to pursue
their claims on a contingency fee basis. The Ohio Plaintiffs
also represented to the Court that they had approached
Defendants' counsel to request that the parties stipulate
to dismissal, but that they had been unable to reach
agreement on a stipulation.
December 20, 2016, and more than a week after the Court's
deadline, the Florida Plaintiffs filed a nearly identical
Motion to Dismiss. (Doc. 54.)
December 28, 2016, Defendants filed their Motion for
Attorneys' Fees and Costs. (Doc. 55.) In support of that
Motion, Defendants filed Declarations signed by Robert D.
Braiman (Doc. 57), Bret Tubergen (Doc. 58), Gerald C.
Williams (Doc. 59), David Drylie (Doc. 60), and Jeffrey S.
Southerland (Doc. 61).
January 5, 2017, the Court entered a Notice of Hearing
setting a Settlement Conference for February 16, 2017.
January 24, 2017, the Florida Plaintiffs filed a Motion
for Additional Time to Respond to Defendants' Motion for
Attorneys' Fees and Costs, which they refer to as a
Motion for Sanctions. (Doc. 66.) They asked the Court for an
extension of time “until after the settlement
conference to respond.” (Id. at PageID 2316.)
Settlement Conference was held on February 16, 2017. In
attendance were Patrick Maguire, Julie Maguire, and David
Pineda, as well as Robert Braiman and counsel on behalf of
Defendants. Instead of engaging in the settlement process,
Mr. and Mrs. Maguire and Mr. Pineda wasted the time and
resources of the Court and Defendants.
that Settlement Conference, the Court advised Mr. and Mrs.
Maguire and Mr. Pineda that the Court intended to grant