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Concepta Business Solutions, LLC v. Cogent Analytics, LLC

United States District Court, S.D. Ohio, Western Division

May 9, 2017

Concepta Business Solutions, LLC, et al., Plaintiffs,
Cogent Analytics, LLC f/k/a Braiman & Associates, LLC, et al., Defendants.


          Susan J. Dlott United States District Court

         This 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 forth herein.


         1. 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).

         2. 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.

         3. In 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 seven items:

a. Huntington Copper's 2010 Financial Information;
b. Huntington Copper's and HCMM's sales pitch (the “Pitch”);
c. Huntington Copper's and HCMM's sales documents (the “Documents”);
d. Huntington Copper's alleged analytical software (“FACS”);
e. Huntington Copper's alleged sales software (“SPEED”);
f. Concepta's alleged analytical software (“CBSA”); and
g. Concepta's alleged sales software (“SPEED VanillaSoft”).[1]

         4. 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 360).

         5. On 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 Injunction Hearing.

         6. On April 14, 2016, Plaintiff David Pineda moved to disqualify Defendants' counsel. (Doc. 12.) The Court denied that Motion on June 23, 2016. (Doc. 32.)

         7. On 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.)

         8. On 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.

         9. On 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, 2016.)

         10. On 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.)

         11. 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.)

         12. On 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).)

         13. On 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.)

         14. On 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.

         15. On 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.

         16. The 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.

         17. On 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.

         18. On 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.

         19. On December 20, 2016, and more than a week after the Court's deadline, the Florida Plaintiffs[2] filed a nearly identical Motion to Dismiss. (Doc. 54.)

         20. On 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).

         21. On January 5, 2017, the Court entered a Notice of Hearing setting a Settlement Conference for February 16, 2017.

         22. On January 24, 2017, the Florida Plaintiffs[3] 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.)

         23. A 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.

         24. At that Settlement Conference, the Court advised Mr. and Mrs. Maguire and Mr. Pineda that the Court intended to grant ...

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