United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
M. BORDEN UNITED STATES MAGISTRATE JUDGE
before the court is the Motion to Dismiss First Amended
Complaint filed by Defendants Walter Eric Killough and Total
Maintenance Services (“TMS”). Doc. 23. Plaintiff
Southern Field Maintenance & Fabrication, LLC
(“Southern Field”) filed this lawsuit on June 15,
2018, bringing several state and federal claims arising out
of actions by its former employee, Killough, and his new
business, TMS. Doc. 1. Pursuant to 28 U.S.C. § 636(c)
and Federal Rule of Civil Procedure 73, the parties have
consented to the jurisdiction of the undersigned United
States Magistrate Judge. Docs. 19 & 20. This court
previously granted in part and denied in part a motion to
dismiss the complaint. Doc. 21 at 20. The instant motion is
directed to the amended complaint filed by Southern Field
with leave of court. Doc. 22. After careful consideration of
the parties' submissions and the applicable law, for
reasons to be discussed below, the motion to dismiss (Doc.
23) is due to be DENIED.
JURISDICTION AND VENUE
court has subject-matter jurisdiction over the claims in this
action pursuant to 28 U.S.C. § 1331 and § 1367. The
parties do not contest personal jurisdiction or venue, and
the court finds adequate allegations to support both.
FACTUAL AND PROCEDURAL BACKGROUND
facts as alleged in the amended complaint are as follows:
Field is an industrial maintenance management and services
provider operating in 30 states. Doc. 22 at ¶ 8.
Killough was an employee of Southern Field until March 25,
2018. Doc. 22 at ¶9. TMS is an industrial maintenance
company formed by Killough to compete with Southern Field.
Doc. 22 at ¶ 10.
began his employment with Southern Field as a fabrication
shop foreman and was promoted over time to the position of
superintendent of Southern Field's contract maintenance
crew assigned to supervise and manage Southern Field's
maintenance service work for Georgia-Pacific Corporation
(“GP”). Doc. 22 at ¶ 12.
his position with Southern Field, Killough began making plans
to form an industrial maintenance company to compete with
Southern Field. All of Killough's plans were undertaken
clandestinely and without the knowledge or consent of
Southern Field. Doc. 22 at ¶ 15.
of this process, Southern Field alleges, Killough
misappropriated confidential, proprietary, and trade secret
business information belonging to Southern Field. The trade
secret information is alleged to include the following, with
the following protections of those trade secrets, as
a. Southern Field's business plan related to maintenance
service project work which is maintained in hard copy and
electronic copy formats and is marked with legends indicating
it is confidential and/or proprietary. The electronic copy is
maintained on a password-protected server and the hard copies
are maintained in locked storage. Killough was in the limited
group of Southern Field employees who had password access to
the server and Southern Field made presentations to and
specifically discussed with Killough the need to maintain the
confidentiality of the business plan.
b. Southern Field's project estimates, proposals,
subcontracts, and purchase orders and Killough's intimate
knowledge about Southern Field's proprietary and
confidential information contained in them. Killough had many
conversations of a confidential nature about how the price
was prepared for the proposals. Access to the bid documents
is controlled by a pre-approved list of employees with
access. The bid documents are stored on a password-protected
server or in locked cabinets or locked rooms. Southern Field
made presentations to and discussed with Killough the need to
maintain confidentiality. The internal documents were marked
with legends indicating that they were confidential and/or
c. Southern Field's project tracking log, containing
information on past, current and future purchase orders on
the GP Project. Only authorized personnel are given access to
this log. Killough was in a limited group of employees who
had password access to the access-limited, password-protected
server. Southern Field made presentations and discussed with
Killough the need to maintain the confidentiality of the
information in the log.
d. Southern Field's proprietary and confidential time and
materials rates used to prepare bids and quotes for
industrial maintenance contracts and jobs, including on the
GP Project. The sheets are maintained in hard copy and
electronic copy formats. The electronic copies are maintained
on an access-limited, password-protected server. The sheets
are marked with a confidentiality/proprietary legend.
Southern Field made presentations to and discussed with
Killough the need to maintain confidentiality of the
proprietary information in the rate sheets.
e. Documents and information containing Southern Field's
current gross profit, overhead and pretax percentages. These
documents were only shared with authorized personnel,
including Killough, to analyze profitability and to help
prepare future bids. The information was maintained by the
Chief Financial Officer on an access-limited,
password-protected server. Southern Field made presentations
to and discussed with Killough the need to maintain
Doc. 22 at ¶ 19.
Field also alleges that during his employment Killough
received and signed a written acknowledgment within the
company handbook that sensitive business information is
confidential, the property of the company, and should not be
discussed except where explicitly authorized by the company.
Doc. 22 at ¶ 21. The amended complaint also alleges that
Killough prepared and delivered to GP quotes and proposals
for maintenance work that were marked as “CONFIDENTIAL
& PROPRIETARY INFORMATION.” ...