United States District Court, D. Arizona
G. Campbell United States District Judge
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.
“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).
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.
Misappropriation of Trade Secrets.
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
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.
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.
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.
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.
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