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Garcia v. Office Keepers LLC

United States District Court, D. Arizona

February 26, 2018

Alberto Garcia and Rosa Marin, Plaintiffs,
Office Keepers LLC, et al., Defendants.


          David G. Campbell United States District Judge

         On February 22, 2018, the Court held an evidentiary hearing on the motion for a preliminary injunction filed by Defendant/Counterclaimant Office Keepers LLC. Doc. 31. After considering the evidence submitted by the parties and the arguments made in writing and at the hearing, the Court will deny the motion.

         I. Legal Standard.

         A “preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original). Such an injunction may be granted if the movant “establish[es] that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

         II. Analysis.

         Office Keepers asks the Court to prohibit Plaintiffs Alberto Garcia and Rosa Marin from soliciting customers for whom Officer Keepers performed work during the 12 months preceding Plaintiffs' separation from the company in July 2017, from soliciting Office Keepers' independent contractors to work for Plaintiffs' new company, and from using confidential information gained during their employment. Office Keepers asserts that it is likely to succeed on the merits of four claims: (1) misappropriation of trade secrets, (2) tortious interference with contract and with prospective business relations, (3) unfair competition, and (4) breach of contract. Doc. 31 at 8-15. Office Keepers has failed to show that it is likely to succeed on any of these claims.

         A. Misappropriation of Trade Secrets.

         Office Keepers alleges that Plaintiffs violated the Arizona Uniform Trade Secrets Act, A.R.S. § 44-401, et seq. (“AUTSA”). That statute defines a trade secret as information that “[d]erives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.” § 44-401(4)(a) (emphasis added). During the hearing, Office Keepers presented evidence that Plaintiffs have used the identities of Office Keepers' customers, and contact information related to those customers, to contact the customers and solicit business for Plaintiffs' new company. Office Keepers did not present evidence that Plaintiffs have used any other confidential information.

         Office Keepers is not likely to prevail on its claim that the identities and contact information of its customers constitute trade secrets. Office Keepers' customers are companies that contract to provide janitorial services to various businesses or entities. The customers then subcontract the actual janitorial work to companies like Office Keepers. Plaintiffs' counsel aptly characterized these customers as brokers of janitorial cleaning work.

         Two of the five customers identified in Office Keepers' motion testified during the hearing. Mark Adriansen, the owner of System4, testified that his company is publicly known as an entity that subcontracts for janitorial services. He testified that he uses approximately 80 subcontractors like Office Keepers. He advertises his business on the Internet, has a website, and readily provides contact information. The fact that he is in the business of subcontracting janitorial work, and his contact information, cannot be said to be trade secrets within the definition of the AUTSA. That information is generally known to persons who can obtain economic value from it, and is “readily ascertainable by proper means.” Id. An Internet search would identify System4 as a company that subcontracts out janitorial work.

         Mike O'Donnell is the owner of City Wide of Phoenix, another of Office Keepers' customers. O'Donnell testified that he uses approximately 30 subcontractors like Office Keepers. His company advertises on the Internet, and he invites janitorial companies like Office Keepers to apply for work. Again, it appears that the position of his company as a possible supplier of janitorial work is not secret, and that his identity and contact information are readily ascertainable by proper means.

         Office Keepers presented evidence regarding other allegedly sensitive information contained in documents that Plaintiffs did not return when they left Office Keepers' employment. This included information regarding specific janitorial jobs, the times when the work was performed, billing information, and building access codes. But Office Keepers presented no evidence that this information has been used by Plaintiffs. Office Keepers has not shown that Plaintiffs are misappropriating information properly categorized as trade secrets under the AUTSA.

         Office Keepers' motion also cites the Defend Trade Secrets Act, 18 U.S.C. § 1833, et seq. Doc. 31 at 11. But Office Keepers does not identify the requirements of this statute, and does not explain how the readily ascertainable information discussed above could be viewed as a trade secret under it.

         B. ...

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