MEMORANDUM AND ORDER
This breach of contract and business torts case is before the Court on cross-motions for summary judgment. Plaintiff/Counter-Defendant McGowan & Company, Inc. (“McGowan” or “Plaintiff’) filed a Motion for Partial Summary Judgment (“Plaintiffs Motion”) [Doc. #111], to which Defendants/Counter-Claimants Roger F. Bogan (“Bogan”), Swain & Baldwin Insurance (“SBI”), Universal Managers, Inc. (“UMI”), and Ray B. Baldwin (“Baldwin”) (collectively, “Defendants”) filed a Response (“Defendants’ Response”) [Doc. # 118], and Plaintiff filed a Reply (“Plaintiffs Reply”) [Doc. # 121]. Defendants filed a Motion for Summary Judgment (“Defendants’ Motion”) [Doc. # 96], to which Plaintiff filed a Response (“Plaintiffs Response”) [Doc. # 119], and Defendants filed a Reply (“Defendants’ Reply”) [Doc. # 123]. Both motions are ripe for review.
Having carefully reviewed the parties’ briefing, all matters of record, and the applicable legal authorities, the Court grants in part and denies in part both motions for summary judgment. The Court concludes that Ohio law .applies to Plaintiffs breach of contract claim because there are no grounds for setting aside the parties’ contractual choice of law. Texas law, however, governs Plaintiffs tort claims, pursuant to Ohio choice-of-law rules .and § 145 of the Restatement (Second) of Conflict of Laws.
Applying Ohio law to Plaintiffs contract claim against Bogan, the Court concludes that the Trade Secrets & Special Terms Agreement (the “Agreement”) is not unconscionable and is generally enforceable as explained herein. Because Ohio law applies to Plaintiffs breach of contract claim, Plaintiffs claim for attorneys’ fees pursuant to § 38.001 of the Texas Civil Practices and Remedies Code is dismissed. Under recent Ohio law, Plaintiff may recover fair, just, and reasonable attorneys’ fees pursuant to Paragraph 27 of the Agreement, if Plaintiff prevails on its breach of contract claim against Bogan. The Court, however, declines to grant summary judgment for either party on Plaintiffs breach of contract claim on this record. There are numerous genuine disputes of material fact on the issue of breach. The Court requires Plaintiff to file a more definite statement clarifying its theory of damages and the evidentiary basis for recovering damages.
Applying Texas law to Plaintiffs tort claims, the Court concludes Plaintiffs claims for misappropriation of trade secrets and unjust enrichment should be dismissed. The Court construes Plaintiffs claim for breach of the duty of loyalty under Ohio law as a claim for breach of fiduciary duty under Texas law. Neither Bogan nor Plaintiff is entitled to summary judgment on this claim because there are genuine disputes of material fact on the element of breach, and, on the record presented, the Court declines to award summary judgment to either party on the issue of damages. Summary judgment is also denied without prejudice on Plaintiffs
Finally, Plaintiff is awarded summary judgment on Defendants’ counterclaim. '
I. BACKGROUND
A. Facts
Plaintiff McGowan is an Ohio corporation with its principal place of business in Ohio. McGowan, Excess & Casualty (“McGowan Excess”) is a registered trade name of McGowan.
The undisputed facts are as follows. In February 2006, Bogan began working for McGowan as the Regional Vice-President and Branch Manager of the office in Dallas, Texas.
The disputed facts center around Bo-gan’s search for new employment and his conduct directly before and after his resignation. The parties contest the circumstances under which Bogan resigned and the facts surrounding the beginning of his employment with UMI. Plaintiff alleges that Bogan engaged in a series of activities that breached the Agreement and his fiduciary duties, such as sending emails to McGowan’s customers soliciting business and redirecting potential business from McGowan to UMI or SBI.
B. Procedural History
On or about October 28, 2011, Plaintiff sued Defendants in the Court of Common Pleas of Cuyahoga County, Ohio. See Complaint [Doc. # 1-1]; Notice of Removal [Doc. # 1], ¶ 1. Defendants timely removed this case to federal district court in the Northern District of Ohio on the basis of complete diversity of citizenship between the parties. See Notice of Removal, ¶ 13. On June 6, 2012, the Honorable James Gwin of the Northern District of Ohio transferred this case under 28 U.S.C. § 1404(a) to the Southern District of Texas. See Opinion & Order dated June 6, 2012 (“Transfer Order”) [Doc. #37]. On November 2, 2012, the Court granted Plaintiffs unopposed motion for leave to file an amended complaint. See Order on McGowan & Company, Inc.’s Unopposed Motion for Leave to File First Amended Complaint [Doc. # 54].
Plaintiffs Amended Complaint asserts causes of action against all four Defendants (Bogan, Baldwin, SBI, and UMI) for misappropriation of trade secrets, tortious interference with business relationships, and tortious interference with prospective business relationships. Amended Complaint, ¶¶ 30-38, 53-73. Plaintiff further sues Bogan for breach of the Agreement, unjust enrichment, and breach of the duty of loyalty. Id., ¶¶ 39-52, 74-79. Finally, Plaintiff requests attorneys’ fees pursuant to § 38.001 of the Texas Civil Practices and Remedies Code. Id., ¶¶ 80-81. Defendants subsequently filed a counterclaim “pursuant to Rule 11 of the Federal Rules of Civil Procedure” for “the recovery of their reasonable and necessary attorney’s fees which they have been caused to incur as a result of the groundless and bad faith litigation which has been prosecuted against them by Plaintiff.” Defendants’ First Amended Answer and Counterclaim (“Amended Answer”) [Doc. # 53], ¶ 12.
On December 11, 2014, the parties filed the instant cross-motions for summary judgment. These motions are ripe for review. Defendants seek summary judgment on their counterclaim and all of Plaintiffs claims. Plaintiff seeks summary judgment on all claims against Bogan and Defendants’ counterclaim. The Court first
II. SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment against a plaintiff who fails to make a sufficient showing of the existence of an element essential to her case and on which she will bear the burden at trial. Celotex Corp. v. Catrett,
For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant’s claim in which there is an “absence of a genuine issue of material fact.” ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc.,
If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Gen. Universal Sys., Inc. v. Lee,
In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co.,
Finally, “[w]hen evidence exists in the summary judgment record but the non-movant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.” Malacara,
III. PLAINTIFF’S CLAIMS
A. Choice of Law
Plaintiff contends Ohio law applies to all of its claims, while Defendants contend that Texas law applies.' In diversity jurisdiction cases, such as this one, a district court generally applies the choice-of-law rules of the forum state. Pioneer Exploration, L.L.C. v. Steadfast Ins. Co.,
1. Choice of Law on Plaintiffs Contract Claim
a. The Agreement’s Governing Law Clause
The dispositive issue regarding what law applies to Plaintiffs sole contract claim, a claim against Bogan for breach of the Agreement, is whether the Agreement’s choice-of-law provision is enforceable under Ohio’s choice-of-law rules. The Agreement contains the following “Governing Law” clause: “The provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of Ohio applicable to contracts made in that state.” Agreement, ¶ 20. The parties do not dispute that this is a choice-of-law provision, and the Court concludes that it is.
“The Ohio Supreme Court in considering the deference to give contractual choice-of-law provisions has adopted the guidelines of the Restatement (Second) of Conflict of Laws, § 187(2) (1971).... ” Tele-Save Merch. Co. v. Consumers Distrib. Co., Ltd.,
The law of the state chosen by the parties to govern their contractual rights and duties will be applied unless [1] either the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or [2] application of the law of the chosen state would be contrary to the fundamental policy of a state having a greater material interest in the issue than the chosen state and such state would be the state of the applicable law in the absence of a choice by the parties.
Jarvis v. Ashland Oil, Inc.,
Here, the parties chose Ohio law to govern the Agreement. Agreement, ¶ 20. Plaintiff is incorporated and has its headquarters in Ohio. See Amended Complaint, ¶ l.
Defendants rely on this second exception and argue that the Agreement’s choice-of-law provision should not apply because (1) applying Ohio law violates a fundamental Texas public policy against enforcing non-compete agreements; (2) Texas has a greater material interest in this issue than Ohio; and (3) in the absence of the parties’ choice, Texas law would apply under the factors set forth in Restatement (Second) of Conflict of Laws § 188. Defendants’ Response, at 3-6; Defendants’ Reply, at 3-4. Defendants’ argument turns on whether or not enforcement of Paragraph 6 of the Agreement, the “Non-Compete” clause, violates a fundamental public policy of Texas.
b. Whether the Agreement Violates a Fundamental Public Policy in Texas
To determine if the parties’ contractual choice of Ohio law should apply, the Court first must decide if the Agreement violates -a fundamental public policy of Texas. “ ‘In order for the chosen state’s law to violate the fundamental' policy of [the forum state], it must be shown that
Defendants argue that Paragraph 6 of the Agreement violates Texas public policy because Texas, unlike Ohio, requires non-compete clauses to be separately supported by adequate consideration and part of an otherwise enforceable agreement. Defendants’ Response, at 5. Defendants further contend that Paragraph 6 is an unenforceable non-compete clause because it does not contain time or geographic constraints. See id., at 12. The disputed clause, Paragraph 6, states:
6. Non-Compete
Furthermore, Employee agrees that he will never utilize the Trade Secrets, Confidential Information, or proprietary information of Employer to compete with Employer, nor disclose the Trade Secrets, Confidential Information, or proprietary information of Employer to any person, corporation, entity, or association which would allow that person, corporation, entity or association to compete with Employer.
Agreement, ¶ 6 (emphasis in original).
While Paragraph 6 purports to be a non-compete clause, it addresses only the use of confidential information, trade secrets, and proprietary information, and restricts a former employee’s ability to compete only to the extent the former employee intends to use the employer’s confidential information, trade secrets, and proprietary information. Texas law similarly imposes a duty on employees not to use a current or former employer’s trade secrets and confidential and proprietary information acquired during the employment relationship in any manner adverse to the employer, even after the employment relationship has ended. See Ultraflo Corp. v. Pelican Tank Parts, Inc.,
Moreover, Paragraph 6 and Texas’s common law duty are consistent with the distinctions between non-compete and nondisclosure agreements in Texas. Nondisclosure agreements are readily enforced in Texas and do not generally violate public policy. See Marsh USA Inc. v. Cook,
Defendants next argue that Paragraph 6 is unenforceable because it incorporates
Defendants fail to satisfy the first element of the Restatement § 187(2)(b) exception to enforcement of the parties’ choice of law. The Court does not need to reach the remaining elements in the § 187(2)(b) analysis. See Tele-Save Merch. Co.,
2. Choice of Law on Plaintiffs Tort Claims
a. The Agreement’s Governing Law Clause
Plaintiffs other causes of action against Bogan for breach of the duty of loyalty and unjust enrichment, and against all Defendants for misappropriation of trade secrets, tortious interference with business relationships, and tortious interference with prospective business relationships, sound in tort law. As an initial matter, the Court notes that these tort claims are not governed by the Agreement’s choice-of-law provision. The “Governing Law” clause states that only the “provisions of this Agreement” shall be governed by Ohio
b. Whether Ohio or Texas Has the Most Significant Relationship to This Case
“[I]n Ohio, a party may overcome the presumption that the law of the place where the injury occurs will be applied to a tort action, if it can demonstrate that another state has a more significant relationship to the action.”' Muncie Power Products, Inc. v. United Techs. Auto., Inc.,
The parties have not meaningfully briefed the § 6 and § 145 Restatement factors. Nevertheless, there is an extensive record, which the Court considers along with the parties’ arguments on related issues.
Plaintiff contends that Ohio has the more significant relationship to this case because the injury to Plaintiff occurred in Ohio since Plaintiff is incorporated in Ohio and Plaintiffs principal place of business is there. Response, at 14-16. These arguments hark to the first and third § 145 Restatement factors, the place of injury and place of business of the parties. However, the importance of these factors is outweighed by this case’s substantial ties
Having resolved the choice-of-law issues and concluded that Ohio law governs Plaintiffs breach of contract claim and Texas law applies to Plaintiffs tort claims, the Court turns to the merits of each of Plaintiffs claims.
B. Breach of Contract
Plaintiff sues Bogan for breach of the Agreement. Amended Complaint, ¶¶ 39-45. Both Plaintiff and Bogan move for summary judgment in its or his favor. For the reasons explained above, Ohio law applies to this claim. “Under Ohio law, the elements of a breach of contract claim are: (1) the existence of a contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to the plaintiff as a result of the breach.” V & M Star Steel v. Centimark Corp.,
1. Existence of a Contract
a. Unconscionability
With regard to the first element, the existence of a contract, Defendants contend the Agreement is unenforceable because it is unconscionable. In Ohio, un-conscionability is a question of law and requires a two-prong showing: “ ‘(1) substantive unconscionability, i.e., unfair and unreasonable contract terms, and (2) procedural unconscionability, i.e., individual
For procedural unconscionability, “Ohio courts look to ‘factors bearing on the relative bargaining position of the contracting parties, including their age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, and whether alterations in the printed terms were possible.’” Id. at 1017 (quoting Cross v. Carnes,
Defendants assert the Agreement is procedurally unconscionable because Bogan signed the Agreement after he began his employment with McGowan, “did not negotiate any of the terms of the Agreement,” and he “was instructed by Chris Longo that all McGowan & Statehouse employees must sign the Agreement.”
There is no evidence in the record that [plaintiff], who is a second-grade teacher, was prevented from reading the contract before signing or that she was incapable of understanding the document based on some mental or physical impairment. Further, [defendant] emailed all of the purchase documents to her. As a result, there was no salesperson standing over her, directing her to quickly sign the documents. [Plaintiff] had time to read the documents she was signing. If a person can read and is not prevented from reading what he signs, he alone is responsible for reading whathe signs.... [Plaintiff] contends she “was given the impression” that if she wanted to purchase the vehicle, she had to sign all of the documents that were emailed to her “without making any changes.” However, there is no evidence that she attempted to negotiate or alter any of the terms of the agreement. Based on foregoing, we find that she has not met her burden of establishing that the arbitration agreement was procedurally unconscionable.
Id. (internal citations and quotation marks omitted). In Bowie, the Sixth Circuit applying Ohio law stated: .
Boiled down to its essence, [plaintiffs] argument is this: She felt pressured to sign the contract because of the speed with which [defendant’s] employee explained the contract to her, and further, because the employee failed to mention the arbitration clause. But presumably, and as the district court found, [plaintiff], as a single-mother who runs a household and has her associate’s degree in nursing, was capable of asking for more time to read the contract and was capable of understanding the arbitration clause had she read it. Neither her failure to read the contract, nor the employee’s failure to mention the arbitration clause, renders the contract procedurally unconscionable.... Finally, this was not a situation where [plaintiff] had no choice but to accept the contract. She could have tried to negotiate the arbitration provision or she could have gone to another debt services company. She did neither.
Bowie,
Although the bargaining power may not have been equal in this case, we cannot say that [plaintiff] was a victim of procedural unconscionability. Mere inequali-' ty of bargaining power is insufficient to invalidate an otherwise enforceable arbitration agreement. Moreover, nothing in the record before us allows us to conclude that [plaintiff] was unaware of the impact of the agreement or that she was otherwise limited in understanding its impact. Indeed, the agreement itself contains an acknowledgment that [plaintiff] had “been given the opportunity to discuss this agreement with [her] private attorney.” Accordingly, on these facts, we find that there was no procedural unconscionability.
As in these Ohio eases holding no procedural unconscionability, there is no evidence that Bogan was unable to ask questions, negotiate terms, or have an attorney review the Agreement. Indeed, Plaintiff provides a copy of the email Lon-go sent Bogan:
As you know from our conversations with Line, all McGowan & Statehouse employees must sign a “Trade Secrets” agreement. Can you review the attached and sign?
Any questions, let us know.23
Longo states he does not recall Bogan asking him any questions about the Agreement.
Moreover, Bogan was sophisticated. When he signed the Agreement in 2006, he had been working as a wholesale insurance broker for nearly thirty years and recently had started with McGowan as the company’s Dallas branch manager.
b. Enforceability of Attorneys’ Fees Provision
Defendants also argue that Paragraph 27 of the Agreement is unenforceable and that McGowan cannot recover attorneys’ fees on its breach of contract claim. Defendants’ Motion, at 31.’ Defendants contend (1) Paragraph 27, the Agreement’s attorneys’ fees provision, is unconscionable and (2) the provision is an unenforceable penalty.
Regarding Defendants’ second argument, until recently Ohio courts and
c. Enforceability of Paragraph 6
Finally, Defendants argue that the entire Agreement is unenforceable because Paragraph 6 is an unenforceable non-competition clause. Defendants cite only Texas cases. To the extent Defendants’ argument is based on Texas law, this argument is rejected because Ohio law applies to Plaintiffs breach of contract claim.
The Court, for the sake of completeness, considers Defendants’ argument as if asserted under Ohio law. Under that law, “a non-compete clause’s enforceability is a matter of law for the court.” Chi. Title Ins. Corp. v. Magnuson,
“[A] noncompete covenant is enforceable to the extent it is reasonable.” FirstEnergy Solutions Corp. v. Flerick,
To determine the reasonableness of a non-compete covenant, Ohio courts consider:
Whether the covenant imposes temporal and spatial limitations, whether the employee had contact with customers, whether the employee possesses confidential information or trade secrets, whether the covenant bars only unfair competition, whether the covenant stifles the employee’s inherent skill and expertise, whether the benefit to the employer is disproportionate to the employee’s detriment, whether the covenant destroys the employee’s sole means of support, whether the employee’s talent was developed during the employment, and whether the forbidden employment is merely incidental to the main employment.
Basicomputer Corp. v. Scott,
Finally, Ohio law empowers courts to modify or amend non-compete covenants to achieve reasonable results. Chi. Title Ins. Corp.,
The disputed “non-compete” clause, Paragraph 6 of the Agreementprohibits Bogan’s use of McGowan’s trade secrets, confidential information, or proprietary information to compete with McGowan. See Agreement, ¶ 6 (quoted above). Paragraph 5 of the Agreement, the “Non-Disclosure” covenant, also restricts Bogan’s use of trade secrets, confidential information, and proprietary information.
Under Ohio law, “[a]n employee possessed of his former employer’s trade secrets ‘[has] the right to take employment in a competitive business, and to use his knowledge (other than trade secrets) and experience, for the benefit of the new employer.’ ” Hydrofarm, Inc. v. Orendorff,
Defendants also contend Paragraph 6 is unenforceable because it incorporates an overly broad definition of “trade secrets” and “confidential information.”
Defendants’ contention that a valid contract does not exist between Bogan and Plaintiff is rejected.
2. Breach
Plaintiff contends that Bogan breached Paragraphs 5, 6, 7, and 36 of the Agreement. The parties raise highly fact-dependent arguments regarding whether Bogan breached any of the provisions of the Agreement. Accordingly, the Court con-eludes that summary judgment is not appropriate for either party on this element of Plaintiffs contract claim.
a. Paragraphs 5 and 6
There is a genuine dispute of material fact regarding whether any of Plaintiffs information rises to the level of trade secret, confidential, or proprietary information. There also is a genuine fact dispute whether Bogan’s use of this information constitutes a violation of Paragraph 5, which restricts an employee’s ability to disclose McGowan’s trade secret, confidential, and proprietary information, or a violation of Paragraph 6, which prohibits an employee from using McGowan’s trade secrets, confidential information, and proprietary information to compete with McGowan. See Agreement, ¶¶ 5, 6.
Plaintiff argues Bogan breached Paragraphs 5 and 6 of the Agreement by using Plaintiffs confidential information to send emails soliciting business from Plaintiffs customers and brokers, to divert business and quotes away from Plaintiff, and to build a book of business for his new employer, UMI. Plaintiffs Reply, at 3; Plaintiffs Motion, at 23. Plaintiff directs the Court to evidence such as emails from Bogan, the “Production Analysis” for UMI from January 1, 2011 to September 30, 2013, and Defendants’ responses to Plaintiffs requests for admissions.
b. Paragraph 7 of the Agreement
Plaintiff also contends Bogan breached Paragraph 7, the “Non-Disparagement” provision of the Agreement,
Defendants assert that Bogan’s statements do not rise to the level of a “disparaging comment” because the emails “correctly expressed concern about the future of McGowan” and were either sent by Bogan at Longo’s instruction or were sent by Bogan to maintain his longstanding relationships with clients.
c. Paragraph 36 of the Agreement
Finally, Plaintiff contends that Bogan breached Paragraph 36 by failing to devote “100% of his business time” to McGowan.
While this evidence is weighty, Defendants point to genuine fact issues pertaining to many of these documents. For instance, most of the emails in which Bo-gan allegedly “solicits” clients are challenged by Defendants through Bogan’s testimony that the emails were sent at Longo’s direction. Bogan Deck, ¶ 14. Bo-gan also asserts that the business he diverted from McGowan could never have been written by the company. Id., ¶ 18. Defendants further dispute when Bogan began his employment with UMI.
3. Damages
Defendants contend Plaintiff has provided no evidence of any damages suffered as a result of Bogan’s alleged misconduct. Defendants’ Motion, at 21-24; Defendants’ Reply, at 13-15. Plaintiff does not clarify under what legal theory it is pursuing damages, and has not clearly articulated what damages resulted from any specific alleged breach of the Agreement, both of which Plaintiff must do at trial. Defendants, however, have failed to establish entitlement to summary judgment under Ohio damages law. The Court declines to grant summary judgment for either party.
Plaintiffs damages arguments relate to business Bogan allegedly diverted from McGowan to UMI and/or SBI, revenue McGowan allegedly lost due to Bogan, and business UMI allegedly gained after Bogan began working there. It is unclear whether Plaintiff simply seeks lost profits damages or intends some other measure of damages.
Plaintiff asserts McGowan suffered “a decrease in the dollar amounts of business written with certain brokers who Bogan improperly solicited with his disparaging
Plaintiff is required to file a more definite statement clarifying its damages theories and identifying the supporting evidence produced through discovery or initial disclosures as timely supplemented by the parties. Defendants may challenge this proof of damages through a new summary judgment motion.
To conclude on Plaintiffs breach of contract claim, the Court decides as a matter of law that the Agreement is not unconscionable and is generally enforceable as explained above. But, there are numerous genuine disputes of material fact on the element of breach precluding summary judgment for Plaintiff or Bogan. Summary judgment is also denied for both parties on the issue of damages because the record is inadequate to decide the issue or the existence of recoverable damages under Ohio law.
C. Misappropriation of Trade Secrets
Plaintiff sues all Defendants for misappropriation of trade secrets. Amended Complaint, ¶¶ 30-38. In Ohio,
Plaintiff only brings this cause of action as an Ohio statutory claim under OUTSA, and has not alleged a Texas tort claim in its Amended Complaint, the operative pleading for Plaintiff at this time. Plaintiff, in its Amended Complaint, filed after the case was transferred to Texas and after Plaintiff was on notice that Texas law may apply, specifically alleges that Defendants’ conduct constitutes a violation of OUTSA. Amended Complaint, ¶ 33.
Plaintiff sues Bogan for unjust enrichment. Texas courts recognize that “[a] plaintiff may recover under an unjust enrichment theory ‘when one person has obtained a benefit from another by fraud, duress, or the taking of an undue advantage.’ ” Sullivan v. Leor Energy, LLC,
However, “[i]n Texas, unjust enrichment is based on quasi-contract and is unavailable when a valid, express contract governing the subject matter of the dispute exists.” Coghlan v. Wellcraft Marine Corp.,
Plaintiff alleges Bogan “wrongfully retained amounts in the form of compensation from McGowan for the last two weeks of his employment with McGowan.” Amended Complaint, ¶ 78. Plaintiffs arguments rely on the same alleged miseon-duct that give rise to Plaintiffs claims for Bogan’s breach of the Agreement. Plaintiffs briefing primarily cites Ohio law. Plaintiff does not clarify its legal theory for an unjust enrichment claim under Texas law. Since the Court concludes above that a valid, express contract exists governing the subject matter of Plaintiffs dispute, Plaintiffs claim for unjust enrichment is not viable under Texas law.
E. Breach of the Duty of Loyalty (Breach of Fiduciary Duty)
Plaintiff sues Bogan for breach of the duty of loyalty under Ohio law. Amended Complaint, ¶¶ 46-52. Plaintiff alleges that Bogan breached his duty “not to use or disclose McGowan’s confidential, proprietary, or trade information except in furtherance of McGowan’s business.” Id., ¶ 47. Plaintiff further alleges that Bogan “breached his fiduciary duty of loyalty to McGowan by competing with McGowan while employed by McGowan.” Id., ¶ 49.
As noted, Texas law governs this tort claim. Although Texas case law does not consistently refer to an employee’s “duty of loyalty” per se, Texas law recognizes that an employee owes an employer fiduciary duties, which include a duty comparable to what Plaintiff alleges as a “duty of loyalty” under Ohio law.
In Texas, “[t]o succeed on a claim of breach of fiduciary duty, the plaintiff must show that a fiduciary relationship existed between the plaintiff and defendant, that the defendant breached his fiduciary duty, and that the defendant’s breach caused injury to the plaintiff or a benefit to the defendant.” Meaux Surface Prot., Inc. v. Fogleman,
For the first element, the existence of a fiduciary duty, Texas courts have held that “the employee has a duty to act primarily for the benefit of the employer in matters connected with his agency.” Abetter Trucking,
Plaintiff alleges that Bogan breached his fiduciary duties to McGowan by using McGowan’s confidential information, misappropriating trade secrets, “using McGowan property to recruit employees for [SBI],” “soliciting McGowan’s clients to cease doing business with McGowan and begin working with [SBI],” and “forwarding quote requests from potential clients of McGowan to [SBI].” Amended Complaint, ¶¶ 48, 49. As discussed earlier, there are genuine disputes of fact regarding whether any of Bogan’s conduct involved trade secrets or confidential information, whether Bogan wrongfully solicited clients, and
Additionally, the parties’ arguments about damages generally do not distinguish between Plaintiffs claims for breach of contract and breach of fiduciary duty. See, e.g., Plaintiffs Response, at 23 (asserting “Plaintiff has been damaged by Defendants’ wrongful conduct”); Defendants’ Reply, at 13 (responding the Plaintiffs arguments under the general heading of “McGowan Has Not Shown it was Damaged by Bogan’s Conduct”). Texas law allows for recovery of lost profit damages in breach of fiduciary duty causes of action. ERI Consulting Eng’rs, Inc. v. Swinnea,
Plaintiff must identify in the more definite statement specifically what measure of damages it seeks on its breach of fiduciary duty claim, and must cite to evidence timely produced during discovery and to legal authorities on which Plaintiff relies.
F. Tortious Interference Claims
Plaintiff sues all Defendants for “tortious interference with business relationships” and “tortious interference with prospective business relationships.” Amended Complaint, ,¶¶ 53-73. Plaintiff briefs these two “tortious interference” causes of action as a single claim. See Plaintiffs Motion, at 28 (which includes only a single heading for tortious interference with prospective business relationships); Plaintiffs Response, at 31 (only listing the elements for a claim for “tor-tious interference of business relationships” under Ohio law); Plaintiffs Reply, at 14 (“Bogan has failed to Rebut McGowan’s Tortious Interference Claim”). Tor-tious interference with “existing business relationships” and tortious interference with “prospective business relationships” are two distinct causes of action under Texas law. See Apani Sw., Inc. v. Coca-Cola Enters., Inc.,
The first element of Plaintiffs claim for tortious interference with an existing business relationship, unlawful action, is similar to the third element of Plaintiffs claim for tortious interference with a prospective business relationship, independently tortious or unlawful conduct. For both claims, Plaintiff must “prove that the defendant’s conduct would be actionable under a recognized tort.” Wal-Mart Stores, Inc. v. Sturges,
Summary judgment is denied without prejudice on Plaintiffs tortious interference claims. The parties did not meaningfully address the elements under Texas law for each of these two torts.
Plaintiff is required to file a more definite statement articulating its specific tor-tious interference theories under Texas law against each Defendant, respectively. Plaintiff must support each theory it intends to pursue with citations to evidence already in the record and legal authorities.
IV. DEFENDANTS’ COUNTERCLAIM
Defendants assert a counterclaim under Rule 11 of the Federal Rules of Civil Procedure for “recovery of their respective reasonable and necessary attorney’s fees which they have been caused to incur as a result of the groundless and bad faith litigation which has been prosecuted against them by Plaintiff McGowan in this matter.” Defendants’ First Amended Answer and Counterclaim (“Amended Answer”) [Doc. # 53], at 13, ¶ 12. The Fifth Circuit has held that Rule 11 does not confer any substantive rights nor does it provide the basis for an independent cause of action. Elliott v. M/V Lois B.,
To the extent Defendants, through their counterclaim, seek Rule 11 sanctions on the ground that Plaintiffs claims are frivolous, this argument clearly fails. There has been extensive and necessary summary judgment briefing on a variety of legal issues. The Court has concluded that there are several triable issues of fact for a jury. This action is not groundless or frivolous, and Rule 11 sanctions are unwarranted.
Defendants attempt to salvage their counterclaim by arguing that it is actually a tort claim for tortious interference. Response, at 25. Without citing any evidence in the record, Defendants assert they “have alleged that McGowan’s harassing and threatening email, among others, sent by its President and CEO, a licensed Ohio attorney, to Bogan tortiously interfered with Bogan’s then current employment relationship with UMI.” Id. The record, however, contains no prior evidence of Defendants asserting a tortious interference claim. Defendants did make factual allegations about McGowan’s president in their amended answer, but, the counterclaim contains no mention of tortious interference and does not purport to bring a tortious interference claim in any way. See Amended Answer, at 13, ¶ 15. Defendants may not expand their counterclaim by asserting a new theory of recovery in response to a motion for summary judgment. See Bridgeport Music, Inc. v. WM Music Corp.,
Y. CONCLUSION AND ORDER
For the reasons explained, herein, Ohio law applies to Plaintiffs breach of contract claim against Bogan. Under Ohio law, the Agreement is not unconscionable and is
Summary judgment is denied for both Plaintiff and Bogan on Plaintiffs breach of contract claim. There are genuine disputes of material fact on the issue of breach. Plaintiff is required to file a more definite statement clarifying its damages theories and directing the Court to eviden- • tiary support disclosed during discovery, as well as legal authorities supporting each of Plaintiffs theories.
Texas law governs Plaintiffs tort claims. Accordingly, Plaintiffs misappropriation of trade secrets claim is dismissed because Plaintiff has only alleged this claim as an Ohio statutory cause of action, and not a Texas common law tort. Plaintiffs unjust enrichment claim is also dismissed because Texas law does not allow recovery under a theory of unjust enrichment when there is a valid, enforceable contract governing the subject matter of the dispute. Plaintiffs breach of the duty of loyalty claim against Bogan is construed as a claim for breach of fiduciary duty. Summary judgment is denied for both parties on this claim due to numerous genuine disputes of fact on the element of breach and an insufficient record for the Court to reach the element of damages.
The Court denies without prejudice all parties’ summary judgment motions on Plaintiffs claims for tortious interference with an existing business relationship and tortious interference with a prospective business relationship. The parties have not meaningfully briefed their arguments on these claims under Texas law. Plaintiff has not articulated anywhere these claims with sufficient precision and is ordered to provide a more definite statement clarifying each legal theory on which it intends to pursue a tortious interference claim against each Defendant, Bogan, Baldwin, SBI, and UMI, respectively.
Finally, Plaintiff is entitled to summary judgment on Defendants’ counterclaim. Accordingly, it is hereby
ORDERED that Plaintiffs Motion for Partial Summary Judgment [Doc. # 111] is granted in part and denied in part. It is further
ORDERED that Defendants’ Motion for Summary Judgment [Doc. # 96] is granted in part and denied in part. It is accordingly
ORDERED that Defendants’ counterclaim, see Defendants’ First Amended Answer and Counterclaim [Doc. # 53], at 13-14, ¶¶ 12-15, is DISMISSED with prejudice. It is further
ORDERED that Plaintiffs claims for misappropriation of trade secrets and unjust enrichment are DISMISSED with prejudice. It is further
ORDERED that Plaintiffs claim for Attorneys’ Fees Pursuant to Texas Civil Practices and Remedies Code § 38.001 is DISMISSED as moot. It is further
ORDERED that Plaintiff must file a more definite statement by March 27, 2015 clarifying its tortious interference claims and damages theories. In the more definite statement, Plaintiff must articulate under Texas law the specific tortious interference theories against each Defendant separately, and must support each theory by specific factual allegations and cite to supporting evidence timely produced during discovery. Furthermore, Plaintiffs more definite statement must clarify under what theories it seeks damages, citing to
ORDERED that, on the theories for damages and the tortious interference claims included in Plaintiffs more definite statement, any party may file a motion for summary judgment by April 10, 2015. If a new motion for summary judgment is filed on Plaintiffs tortious interference claims or damages theories, the response from the opposing party shall be due April 20, 2015. Any reply shall be due April 27, 2015. It is further
ORDERED that the parties are required to mediate this case again on or before May 20, 2015. Finally, it is
ORDERED that docket call in this case is rescheduled for June 1, 2015 at 2:00 p.m. The parties’ joint pretrial order is due May 27, 2015.
Notes
. While McGowan Excess appears to be a division of McGowan, the parties use the company names McGowan and McGowan Excess interchangeably. The Court, thus, refers to both entities as "McGowan.” Additionally, parts of the record refer to "Statehouse Casualty Managers,” "Statehouse Casualty,” “Statehouse Managers,” or "Statehouse.” It appears that Statehouse Casualty Managers became McGowan Excess in January 2011. See Declaration of Robert Bogan (“Bogan Decl.”) [Doc. # 97-1], ¶ 8. Accordingly, the Court construes references to Statehouse Casualty Managers, or similar iterations of this company’s name, as references to McGowan.
. 'Plaintiff’s First Amended Complaint ("Amended Complaint”) [Doc. # 52-1], ¶ 9.
. See Exhibit D to Defendants’ Motion (Oral Deposition of Sam Baldwin) [Doc. # 104], at ECF page 4; Exhibit E to Defendants’ Motion (Oral Deposition of Ray Baldwin) [Doc. #106], at ECF pages 9-11; Declaration of Ray Baldwin ("Baldwin Decl.”) [Doc. # 98], ¶ 9.
. Baldwin Decl., ¶ 3.
. See Exhibit D to Defendants' Motion (Oral Deposition of Sam Baldwin) [Doc. # 104], at ECF page 4; Exhibit C to Defendants’ Motion (Oral Deposition of Robert F. Bogan) [Doc. # 102], at ECF page 14.
. Bogan Decl., ¶ 4; Declaration of Chris Lon-go ("Longo Decl. dated June 4, 2012”) [Doc. # 111-2], at ECF page 4, ¶ 1 & n. 1.
. See Bogan Decl., ¶ 7; Longo Decl. dated June 4, 2012, ¶ 10.
. See Exhibit' E to Response (Email from Chris Longo dated Mar. 12, 2006) [Doc. # 119-2], at ECF page 34; Longo Decl. dated June 4, 2012, ¶ 1. There are multiple, identical copies of the Agreement in the record filed by both parties. For convenience, the Court cites only to one copy.
. Bogan Decl., ¶ 5; Agreement, at 1, 11.
. Agreement, at 11.
. Longo Decl. dated June 4, 2012, ¶ 15; Exhibit C to Defendants’ Motion (Oral Deposition of Robert F. Bogan) [Doc. # 102], at ECF page 19.
. Longo Decl. dated June 4, 2012, ¶ 16; Exhibit C to Defendants’ Motion (Oral Deposition of Robert F. Bogan) [Doc. # 102], at ECF page 18.
. Compare Bogan Decl., ¶ 15 (stating Bogan began working for UMI in August 2011), with Plaintiff's Motion, at 11 (stating Bogan’s 1-9 form showed his employment began July 1, 2011).
. Plaintiff also asserts McGowan gave "final approval” of the Agreement in Ohio.- See Declaration of Laura McGowan dated Jan. 15, 2015 [Doc. #120], at ECF page 5, ¶ 11; Agreement, at 11.
. OUTSA, Ohio Rev.Code § 1333.61(D)(1), (2), defines "trade secret” as:
(D) "Trade secret” means information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:
(1) It derives 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.
(2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
. Defendants mistakenly rely on an Ohio district court case, in which the district court held claims "arising from” the contract would be governed by the parties’ contractual choice of Florida law. See Extracorporeal Alliance, L.L.C. v. Rosteck,
. See Bogan Decl., ¶¶4, 13 (noting that Bo-gan’s work for McGowan primarily took place in Texas, and he was employed at the Dallas branch). Indeed, as the transfer order from the Northern District of Texas noted, this case’s ties to Ohio are so tenuous that it was unclear to the district judge whether personal jurisdiction existed over Defendants in Ohio. See Transfer Order, at 4.
. Bogan Decl., ¶ 15.
. See Amended Complaint, ¶¶ 2-6.
. See Longo Decl. dated June 4, 2012, ¶¶ 3-5; see also Declaration of Christopher Longo dated Jan. 15, 2015 (Longo Decl. dated Jan. 15, 2015) [Doc. # 119-2], ¶¶ 3-5.
. See Longo Decl. dated June 4, 2012, ¶¶ 3-5; Bogan Decl., ¶¶ 4, 13.
. Bogan Decl., ¶ 6.
. Exhibit E to Response (Email from Chris Longo dated Mar. 12, 2006) [Doc. # 119-2], at ECF page 34; see also Longo Deck dated June 4, 2012, ¶ 7.
. Longo Decl. dated June 4, 2012, ¶ 8.
. Bogan Decl., ¶¶ 4, 21; see also Longo Decl. dated June 4, 2012, ¶ 2.
. Paragraph 27 of the Agreement states:
27.Equitable Relief
Recognizing that irreparable injury will result to Employer, its business and property, in the event of a breach of this Agreement by Employee, and that Employee's employment is based primarily on this Agreement, the parties hereto agree that in the event of any actual or threatened breach of the provisions of of [sic] this Agreement by the Employee, Employer shall be entitled, in addition to any other remedies and damages available, to injunctive relief (temporary or otherwise) to restrain the violation thereof.
If Employer prevails in such an action, Employer shall be entitled to recover from Employee all costs associated with such action, including, without limitation, reasonable and necessary attorney’s fees.
Agreement, ¶ 27 (emphasis in original).
. On the other hand, because Ohio law applies to Plaintiff's breach of contract claim, Plaintiff's claim for attorneys’ fees pursuant to § 38.001 of the Texas Civil Practices and Remedies Code, Count VII of the Amended Complaint, is dismissed as moot.
. Paragraph 5 of the Agreement states:
5. Non-Disclosure of Trade Secrets, Confidential Information & Proprietary Information
Employee agrees that he will NEVER communicate, divulge, or disclose Trade Secrets, Confidential Information, or proprietary information of Employer, either during the course of his employment or at any point after the termination thereof, to any person, corporation, entity (governmental or otherwise), or association not authorized in writing by the president of Employer (not the president of any subsidiary of Employer) to receive disclosure of such Trade secrets.
a. This provision shall not preclude the Employee from:
(i) performing his job duties for Employer;
(ii) communication or using information known generally to the public after the termination of Employee's employment by Employer, other than as a result of Employee’s violation of a confidentiality obligation imposed by this Agreement or force of law; or,
(iii) making any disclosure required by a court of law or governmental or regulatory authority order or decree; provided that Employee shall not make any such disclosure without first giving Employer notice of his intention to make that disclosure in order for Employer to have an opportunity to interpose an objection to the disclosure.
Agreement, ¶ 5 (emphasis in original).
. See Defendants' Reply, at 5. Paragraph 23 of the Agreement defines "confidential information” and "trade secrets” as follows:
(a) Confidential Information.
Confidential Information shall be defined to mean any information about employer which is not generally available to the public.
(h) Trade Secrets.
Trade secrets shall be defined to mean highly confidential, non-public information or Employer, the nondisclosure of which is integral and critical to the business success of Employer.
Trade secrets shall be further defined to include, amongst other things: (i) the operational structures of Employer’s insurance programs; (ii) the eligibility criteria for potential insureds in Employer's insurance products and programs; (iii) the pricing structure of Employer's insurance products and programs (i.e. — the rates charged to insureds in Employer's products and programs); (iv) the names, addresses, telephone numbers, fax numbers, e-mail addresses, and. any other information about any of Employer's insureds; (v) underwriting information related to any of Employer’s insureds; (vi) the expiration dates of insurance policies, evidences, or certificates; (vii) financial information about Employer; (viii) the volume of business underwritten by Employer; (ix) the reinsurers of Employer’s insurance products and programs; (x) the number of employees of Employer; (xi) the names, addresses, telephone numbers, fax numbers, e-mail addresses, and any other information about any of Employer’s retain agents, agencies, brokers, or brokerages; (xii) any work product, intellectual property, or other information developed or generated by Employee while in the employment of Employer; and, (xiii) any other information which is not generally known about Employer, including, but not limited to, its operations, products suppliers, markets, sales, employees, costs, profits, business relationships, customers’ needs, clients, insureds, finances, business activities, insurance agencies, insurance agents, insurance brokers, insurance brokerages, or other information acquired disclosed, or made known to Employee before, during or after Employee’s employment by Employer. Agreement, ¶ 23(a), (h) (emphasis in original).
. See Exhibit T to Plaintiff's Motion (Emails from Bogan) [Doc. # 112-1], at ECF pages 3-24; Exhibit I to Plaintiff’s Motion (Email from Bogan dated July 26, 2011) [Doc. #111-6], at ECF page 9; Exhibit V to Plaintiff's Motion ("UMI's Production Analysis”) [Doc. # 112-1], at ECF page 35; Responses and Objections to Plaintiff's First Set of Requests for Admissions to Defendant Roger Bo-gan [Doc. # 111-10], at ECF page 4.
. See Defendants' Response, at 13-15; Bo-gan Decl., ¶¶ 23-24.
. Defendants’ Motion, at 6 (citing Exhibit E to Defendants’ Motion (Oral Deposition of Ray Baldwin) [Doc. # 107], at ECF page 7).
. Paragraph 7 of the Agreement states:
7. Non-Disparagement
Employee agrees that he will never make, directly or indirectly, a Disparaging Comment about Employer to any person, corporation, entity (governmental or otherwise) or association.
Agreement, ¶ 7 (emphasis in the original). Paragraph 23 of the Agreement defines "disparaging comment” as follows:
b. Disparaging Comment
Disparaging Comment shall be defined to mean any written or oral statement communicated to a Third Party which disparages, denigrates, ridicules, or criticize[s] Employer, or which would cause that Third Party to think poorly of or negatively about Employer, whether or not such statement is true or false.
A Disparaging Comment shall be further defined to include a statement considered under the law to be: (i) libel; (ii) slander; or (iii) defamation.
Agreement, ¶ 23(b) (emphasis in original).
. See Exhibit F to Plaintiff's Motion (Email from Bogan dated July 15, 2011) [Doc. #111-6], at ECF page 5; Exhibit T to Plaintiff’s Motion [Doc. # 112-1], at ECF page 5.
. Defendants’ Response, at 19-20 (citing Bo-gan's deposition testimony, and declaration in support).
. Paragraph 36 states:
36. Complete Devotion
Employee agrees that he shall devote 100% of his business' time to Employer and shall dedicate himself to making Employer assuccessful as possible. If Employee desires to obtain a second job, Employee must first obtain the written permission of the Chief Executive Officer of the subsidiary of Employer for which he works.
Agreement, ¶ 36 (emphasis in original).
. Longo Decl. dated June 4, 2012, ¶ 16; Exhibit C to Defendants' Motion (Oral Deposition of Robert F. Bogan) [Doc. # 102], at ECF page 18.
. See e.g., Exhibit F to Plaintiff's Motion [Doc. # 111-6], at ECF page 5; Exhibit H to Plaintiff's Motion [Doc. #111-6], at ECF pages 9-16; Exhibit I to Plaintiff's Motion [Doc. #111-6], at ECF page 9; Exhibit K to Plaintiff's Motion [Doc. # 111-6], at ECF page 27; Exhibit R to Plaintiff's Motion [Doc. # 111-10], at ECF pages 12-37; Exhibit T to Plaintiff's Motion [Doc. # 112-1], at ECF pages 3-24; Exhibit G to Plaintiff's Response [Doc. # 119-3], at ECF pages 7-12; Exhibit N to Plaintiff's Response [Doc. # 119-3], at ECF pages 38-40; Exhibit 2 to Exhibit U to Plaintiff's Response [Doc. #119-6], at ECF pages 25-29; Exhibit 3 to Exhibit X to Plaintiff's Response [Doc. # 120], at ECF pages 39-40.
. See Exhibit B to Plaintiff's Motion [Doc. # 111-3], at ECF pages 20-21; Exhibit K to Plaintiff’s Motion ("Frates Agreement”) [Doc. #111-6], at ECF page 6; Exhibit U to Plaintiffs Motion [Doc. # 112-1], at ECF pages 26, 31, 32.
. See Bogan Deck, ¶ 15 ("In August 2011, I began working for [UMI] in Texas.”); Baldwin Deck, ¶ 5 ("I understand Mr. Bogan was hired by [UMI] in approximately August 2011 to work in Texas. Mr. Bogan is not currently, nor has he ever been, an employee of [SBI].”).
. See Defendants' Response, at 21; Reply, at 12. Ohio courts have held that "[m]ere nominal, trifling, or technical departures will not result in a breach of contract.” Watershed Mgmt. v. Neff,
. Plaintiff refers only to “losses in revenue,” lost "opportunity to get the business,” and revenue UMI gained. See Plaintiff's Response, at 23-24; Reply, at 4, 15, n. 24, 18, n. 29.
. See Plaintiff's Response, at 24. As support for lost profits, Plaintiff directs the Court generally to copies of the emails Bogan sent allegedly soliciting McGowan's customers to leave with him and to Longo’s conclusory statement that "McGowan saw a decrease in the dollar amounts of business written with certain brokers who Bogan improperly solicited with his emails.” Longo Decl. dated Jan. 15, 2015, ¶ 23; Exhibit Y to Plaintiff's Response (Emails from Bogan) [Doc. # 120-1], at ECF pages 4-24.
. Plaintiff's Response, at 24. In support, Plaintiff provides emails Bogan sent allegedly using McGowan confidential information to solicit business, and Plaintiff directs the Court to two "Production Analyses” it claims shows the more than $2 million dollars worth of business Bogan helped to procure for UMI, including business from some of the McGowan customers Bogan allegedly used McGowan confidential information to solicit. See Exhibit V to Plaintiff's Motion [Doc. # 112-1], at ECF page 35; Exhibit BB to Plaintiff's Response [Doc. # 120-1], at ECF pages 37-43; Exhibit Y to Plaintiff's Response [Doc. # 120-1], Contrary to Defendants’ assertions, Plaintiff also claims McGowan could have earned a commission on the "Insurisk” quote (also referred to in the record as the "Holy Family” quote) that Bogan allegedly diverted from McGowan to UMI. Longo Decl. dated June 4, 2012, ¶¶ 19-20. UMI apparently earned on this quote a "total net amount of revenue of $450 based on a 5% net retained on a $9,000 premium.” Responses and Objections to Plaintiff’s First Set of Interrogatories to Defendants [Doc. #111-9], at ECF page 14 (answer to interrogatory no. 17).
. See Exhibit E to Defendants’ Motion (Oral Deposition of Ray Baldwin) [Doc. # 107], at ECF page 7. It is noted that the evidentiary record is unclear regarding when Bogan’s employment with UMI ended. Defendants state "Bogan ultimately resigned from UMI on September 30, 2013,” apparently because of lack of production and/or he found another job. Defendants' Motion, at 7; Exhibit D to Defendants’ Motion [Doc. # 104], at ECF page 10; Exhibit E to Defendants’ Motion [Doc. # 107], at ECF page 8. As support for this assertion, Defendants unconvincingly cite to portions of Ray Baldwin's and Sam Baldwin's depositions. The deposition testimony cited, however, contains no date or even a time period when Bogan resigned.
. Plaintiff was aware at the time it amended its Complaint that Texas law might apply to this case. Indeed, Plaintiff specifically amended the Complaint to bring a cause of action for attorneys fees under § 38.001 of the Texas Civil Practices and Remedies Code. Id., ¶¶ 80-81.
. For instance, the definition of "trade secret” under OUTSA includes information that "derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means” and "is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Ohio Rev.Code § 1333.61(D)(1), (2); see also Al Minor & Assoc., Inc.,
. Plaintiff's claim for attorneys’ fees pursuant to OUTSA § 1333.64(C), see Response, at 33, is also denied. The Court does not reach the parties’ arguments regarding whether Plaintiff's claims are preempted by OUTSA § 1333.67, which displaces “conflicting tort, restitutionary, and other laws of this state providing civil remedies for misappropriation of a trade secret.” See Ohio Rev.Code Ann. § 1333.67(A); Office Depot, Inc.,
. Texas law recognizes formal fiduciary relationships, which arise[] “as a matter of law and include! ] the relationships between attorney and client, principal and agent, partners, and joint venturers,” Navigant Consulting, Inc. v. Wilkinson,
. Defendants’ Motion suggests that Plaintiff brought a claim for tortious interference with an “existing contract.” See Defendants’ Motion, at 28. Some Texas courts have treated tortious interference with a "contract” and tortious interference with "business relationships” as separate causes of action with slightly different elements. See, e.g., Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d.345, 361 (Tex. App.-Houston [1st Dist.] 2013, pet. denied); Lee & Lee Int’l, Inc.,
. With regard to the damages element, the issues discussed earlier related to Plaintiffs damages arguments for breach of contract and breach of fiduciary duty apply to Plaintiffs tortious interference claims as well. Under Texas law, Plaintiff may recover lost profit damages for tortious interference with existing and prospective business relationships. See Astoria Indus. of Iowa, Inc. v. SNF, Inc.,
. The Court notes that Defendants did not provide any specific arguments or evidence related to UMI, even though, as the summary judgment movant, Defendants bear the initial burden to identify an “absence of a genuine issue of material fact” with regard to each of Plaintiff's claims against UMI. See ACE Am. Ins. Co.,