United States District Court, W.D. Washington, Tacoma
ORDER DENYING PLAINTIFF'S MOTION TO AMEND, MOTION
FOR CONTEMPT, AND MOTION TO STRIKE
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Oakiwear Outdoor,
LLC's (“Oakiwear”) motion to amend injunction
(Dkt. 41), motion for contempt (Dkt. 44), and motion to
strike the additional evidence or, in that alternative,
submit additional briefing (Dkt. 60). The Court has
considered the pleadings filed in support of and in
opposition to the motions and the remainder of the file and
hereby denies the motions for the reasons stated herein.
March 16, 2017, Oakiwear filed a complaint against Defendants
Benjamin Brewer, Maura Brewer, Timbee, LLC, and Julie
Zimmerman (“Defendants”) asserting causes of
action for misappropriation of trade secrets, in violation of
the Defense of Trade Secrets Act and Washington's Uniform
Trade Secrets Act, breach of fiduciary duty, tortious
interference with business expectancy, conversion, and civil
conspiracy. Dkt. 1.
also filed a motion for a temporary restraining order. Dkt.
2. On March 17, 2017, the Court requested a response and set
the matter for oral argument. Dkt. 7. On March 22, 2017, the
parties filed a stipulated motion for preliminary injunction.
Dkt. 23. Later that day, the Court entered the proposed order
as an order of the Court. Dkt. 24. In relevant part, the
injunction provides that (1) Defendants shall not contact
Oakiwear's existing or prospective customers, except
customers that independently came into contact with Timbee
through certain channels, including Zulily.com (id.
¶ 2(a)(iv)) and (2) Defendants shall not use Hangzhou
Fushi Import and Export Co., Ltd. to manufacture its goods
(id. ¶ 2(c)).
1, 2017, Oakiwear filed a motion to amend the injunction and
a motion for contempt of the injunction. Dkts. 41, 44. On
June 19, 2017, Defendants responded. Dkt. 47. On June 23,
2017, Oakiwear replied. Dkts. 51, 52. On July 13, 2017,
Defendants submitted additional evidence. Dkt. 56. On July
19, 2017, Oakiwear moved to strike the additional evidence
or, in that alternative, submit additional briefing. Dkt.
On August 16, 2017, the Court held a hearing on
Oakiwear's motions. Dkt. 63.
Motion to Amend Preliminary Injunction
prevail on a motion for a preliminary injunction, the movant
must show “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.” Am. Trucking Associations, Inc. v. City
of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)
(quoting Winter v. Nat. Resources Defense Council,
555 U.S. 7, 20 (2008)).
case, Oakiwear moves to add four companies to the list of
entities that Defendants may not contact or use during the
pendency of this matter. First, Oakiwear moves to add Zulily
and Kid to Kid to the list of companies that Defendants may
not solicit, contact, or communicate with. Dkt. 41 at 1.
Oakiwear argues that it is likely to succeed on its trade
secrets claims, breach of fiduciary duty claim, and/or
tortious interference with business expectancy claim. There
are numerous problems with Oakiwear's position. Regarding
the trade secrets claims, the existence of a large retailer
does not qualify as a trade secret. “For trade secrets
to exist, they must not be ‘readily ascertainable by
proper means' from some other source, including the
product itself.” Boeing Co. v. Sierracin
Corp., 108 Wn.2d 38, 49-50 (1987) (citing RCW
19.108.010(4)(a)). Oakiwear has failed to show that it is
likely to succeed on the issue of whether the existence of
Zulily or Kid to Kid could not be readily ascertainable by
proper means. See, e.g., Dkt. 49,
¶ 6 (“Prohibiting a company from selling on Zulily
is like prohibiting them from selling on Amazon or Target.
Selling products on Zulily, a widely known and highly
utilized website in the children's apparel industry, is
not proprietary to Oakiwear.”).
to succeed on the relevant aspect of its breach of fiduciary
duty, Oakiwear must show that Defendants obtained
confidential information. While Oakiwear has submitted
evidence of Defendants' activities that are antithetical
to their employer's interests, the knowledge of large
retailers in the kid's clothing industry is hardly
confidential information. “[T]he former employee, even
in the absence of an enforceable covenant not to compete,
remains under a duty not to use or disclose, to the detriment
of the former employer, trade secrets acquired in the course
of previous employment.” Ed Nowogroski Ins., Inc.
v. Rucker, 137 Wn.2d 427, 437 (1999). Oakiwear has
failed to show that it is likely to succeed on the issue of
whether the existence of Zulily or Kid to Kid was
confidential business contact. Moreover, Oakiwear has failed
to submit sufficient evidence of harm related to Timbee's
contacts with these businesses. There must be more than an
assumption that Timbee's contacts with certain entities
resulted in lost sales to Oakiwear.
the tortious interference claim, the competing evidence
raises numerous questions of fact. For example, “a
cause of action for tortious interference arises from either
the defendant's pursuit of an improper objective of
harming the plaintiff or the use of wrongful means that in
fact cause injury to plaintiff's contractual or business
relationships.” Pleas v. City of Seattle, 112
Wn.2d 794, 803-04 (1989). Intent and motive are hard to
prove, and this is especially true at the preliminary stage
of a proceeding. Therefore, the Court concludes that Oakiwear
has failed to meet its burden on this requirement.
reasonable minds could differ on the Court's assessment
of the merits, Oakiwear has failed to show that the balance
of equities tips in its favor. Oakiwear repeatedly assured
the Court that it was not trying to put Timbee out of
business, but the uncontested evidence in the record is that
“Timbee would likely be out of business if it could not
sell on Zulily.” Dkt. 49, ¶ 6. Putting Timbee out
of business is an inequitable preliminary remedy based on the
current record. Therefore, the Court denies Oakiwear's
motion to amend the injunction to add Zulily and Kid to Kid
to the list of prohibited sellers.
Oakiwear moves to add Hangzhou Centralstar Sporting Goods Co.
Ltd. (“Hangzhou Centralstar”) and Hangzhou Fujie
Outdoor Products Inc. (“Hangzhou Fujie”) to the
list of manufacturers that Timbee is prohibited from
utilizing. Dkt. 41 at 1. Similar to the analysis above,
Oakiwear has failed to show a proprietary interest in
“using manufacturers that can be found in three clicks
on the world's largest website.” Dkt. 47 at 12.
Preventing Timbee from using these manufacturers does not
“level the playing field.” Dkt. 52 at 7. Instead,
it would tip the equities sharply in Oakiwear's favor by
preventing Timbee from essentially using any manufacturer in
Hangzhou, China. Moreover, Oakiwear has failed to show how
knowledge of its manufacturing pricing, terms, and order
history has resulted in an unfair advantage on Alibaba.com,
wherein the manufacturers provide quotes for desired
products. Even if an established client like Oakiwear
receives some ...