United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
an action for misappropriation of trade secrets under the
Defend Trade Secrets Act of 2016 (DTSA), 18 U.S.C. §
1831 et seq., and the Ohio Uniform Trade Secrets Act (OUTSA),
R.C. 1333.61, et seq., along with additional common-law
claims. Plaintiffs seek a preliminary injunction prohibiting
Defendants from benefitting from the use of PPS'
confidential and proprietary materials - materials that
Plaintiff alleges Defendants misappropriated while working
for PPS but secretly running a competitive business - pending
the resolution of this matter. Based on the allegations
contained in the Verified Complaint, Defendant Roby agreed to
the issuance of a preliminary injunction. (Doc. 9).
However, after conducting brief discovery, Roby now believes
that the principal allegations in Plaintiff's complaint
that supported entry of a Preliminary Injunction are
demonstrably not true. As such, Roby seeks to dissolve the
agreed upon preliminary injunction. (See Doc. 24).
undersigned held a comprehensive three-day hearing on the
motion for a preliminary injunction on March 21, March 27,
and April 19, 2019.
Background and Facts
2016, Adam Eckert shared a business opportunity with a
longtime friend and former kindergarten pal, Matt Johnson.
(See Johnson Depo., Ex. 1 at 60-61). At the time, Mr. Eckert
“had vast knowledge, obviously, of the industry (with)
many years of experience” and knowledge of “RFPs
and clients (that) were going to become available.”
Id. Mr. Johnson saw that Mr. Eckert's knowledge
presented “an opportunity to start (a) business with
(Mr. Eckert) at the forefront.” Id.
Mr. Johnson formed PPS Service Group (“PPS”) to
take advantage of Mr. Eckert's knowledge, experience, and
opportunities. (Id. at 8-10, 13, 60-61; see also,
Exh. 2). PPS provides nationwide landscaping, snow and ice
removal, parking lot maintenance, and customized facility
management services. Mr. Johnson became PPS' President
and Owner, but he remained employed by ProPharma Sales (a
separate entity he owns). (Id. at 6-12) PPS then
used Mr. Eckert's pre-existing knowledge and contacts to
secure snow removal, ice removal, and landscape contracts
from retailers, which PPS then sought out third parties to
perform the actual work. (Id. at 9). According to
Mr. Johnson, PPS' sales were the product of Mr.
Eckert's “previous relationships with people within
the industry.” (Id. at 17).
September 2017, PPS hired another industry veteran, Robert
Roby. (Id. at 16). Like Mr. Eckert, Mr. Roby had
decades of experience and numerous contacts. (Id. at
63). He had been an executive leader driving procurement
departments for 13 years. (See Doc. 23, Ex. 3). He formerly
worked with national leaders in the industry, Brickman and
CaseSnow Management and had experience and contacts
throughout the United States. Id. PPS required Mr.
Roby to sign an Employment Offer and a Non-Disclosure
Agreement (“NDA”). (See Doc. 23 Exhs. 4 and 5).
January of 2018, Mr. Roby testified that he was offered a job
by Kris Tull, the head of procurement at FacilitySource. Roby
testified that Tull wanted to hire him to find vendors for
thousands of sites. However, the position was located in
Arizona. Roby did not want to move his family from Ohio, so
he declined the offer. (Doc. 55 at 6). Tull then suggested
that Roby start his own company and do the same work as an
independent contractor. Thereafter Roby formed his own
company REMS Nationwide Procurement, LLC
testified that REMS did not perform any services. Instead,
REMS brokered the deal from the contractor for the client.
(Doc. 64 at 39). REMS was created to be the procurement
“middleman” between a company like PPS and those
who clear parking lots. (See Doc. 24, Exh. 3). PPS was
created to be a “middleman” between retailers and
service providers who would clear parking lots. (See Doc. 24,
Ex. 3, Roby Aff.). In this regard, REMS would perform the
task of procuring laborers for contracts already secured
between a PPS (or by its competitors like Cherry Logistics,
Merit, Dentco, etc.) and a retailer. Id. PPS would
service the contract. (Doc. 64, at 93).
customers and prospects are retailers. Id.
Meanwhile, REMS' customers and prospects are PPS and its
competitors. Id. Additionally, the pricing models
used by PPS and REMS have nothing in common. Id.
REMS charges a nominal flat rate per parking lot (i.e., $90).
Id. The roles of REM and PPS is illustrated below:
in January 2018, and continuing through their termination
from PPS in September 2018, PPS contends that Defendants
secretly conducted business on behalf of and solicited
customers for REMS. In this regard, Plaintiff contends that
Defendants often used their PPS email accounts to communicate
with each other, their partners at REMS, and potential
on January 5, 2018, Roby emailed another REMS
owner a list of store locations for a PPS
client. (Verified Complaint ¶20.).
January 18, 2018, Roby sent an email to a potential PPS
client. This client had contacted PPS about having PPS enter
into a contract to provide snow removal services at up to 16,
000 locations nationwide. Instead of working to get the
client for PPS, Plaintiff contends that Defendant Roby signed
his email as the “President” of REMS. He said,
“REMS will be happy to help you…” and
provided a series of PowerPoint slides describing REMS.
(Verified Complaint ¶23.)
January 24, 2018 email, Eckert discussed with other REMS
owners the development of a “pricing model” for
REMS to present to clients. In developing this pricing model,
Plaintiff claims that Eckert used proprietary pricing data
from PPS, and even refers to a PPS customer. He adds at the
end of the email: “I know this might get a little messy
but it protects us and our proprietary data.” (Verified
March 2018, Plaintiff contends that Roby used his PPS email
account to communicate with a potential client. Plaintiff
contends other emails showed that Roby used his PPS email
account and contacts to obtain pricing information in order
to present a bid to this client. (Verified Complaint
¶33.) Again, in May and July 2018, Plaintiff alleges
that when Roby used his PPS email to send to REMS, a PPS
confidential and proprietary spreadsheet containing pricing
and vendor ...