LINDA V. PARKER, District Judge.
Plaintiffs initiated this lawsuit after discovering that Defendants Marc A. Rigole ("Rigole") and Bernard E. LePage ("LePage"), former employees of Plaintiff Nedschroef Detroit Corporation ("Nedschroef Detroit"), had formed a competing company, Bemas Enterprises LLC ("Bemas") while still working for Nedschroef Detroit. According to Plaintiffs, Rigole and LePage used Plaintiffs' equipment, personnel, and trade secrets to start up and run Bemas. Presently before the Court is Plaintiffs' motion for summary judgment, filed pursuant to Federal Rules of Civil Procedure 56 on February 16, 2015. The motion has been fully briefed. Finding the facts and legal arguments sufficiently presented in the parties' pleadings, the Court dispensed with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f) on April 30, 2015. For the reasons that follow, the Court grants summary judgment to Plaintiffs on all but two of their claims.
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The central inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After adequate time for discovery and upon motion, Rule 56 mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The movant has the initial burden of showing "the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. Once the movant meets this burden, the "nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks and citation omitted). To demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon which a jury could reasonably find for that party; a "scintilla of evidence" is insufficient. See Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505.
"A party asserting that a fact cannot be or is genuinely disputed" must designate specifically the materials in the record supporting the assertion, "including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1). The court must accept as true the non-movant's evidence and draw "all justifiable inferences" in the non-movant's favor. See Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505.
Nedschroef Herentals, N.V. is a Dutch manufacturer of industrial machines that produce metal fasteners, such as nuts, bolts, and screws. Dozens of North American fastener manufacturers use those machines. In order to service and provide replacement parts for the machines, Nedschroef
Rigole was assigned to run Nedschroef Detroit when it first opened. (Pls.' Mot., Ex. 2 at 13-16.) He served as the manager of Nedschroef Detroit from 19911996 and from 2004-2013. As the manager, Rigole was the highest ranking Nedschroef employee in North America, and supervised the other Nedschroef Detroit employees. (Id. at 16, 27-28.) Rigole's job duties included servicing Nedschroef machines and providing replacement parts for those machines. Rigole had the authority to issue quotations, order replacement parts from suppliers, enter into contracts, and sign checks on behalf of Nedschroef. (Id. at 27.) He also had access to Nedschroef's passcode-protected proprietary part design drawings, customer lists, supplier lists, pricing information, and financial information. (Id. at 19, 21-24, 28, 55-56.)
In 2005, LePage was hired to work as a project and service engineer for Nedschroef Detroit. (Pl.'s Mot., Ex. 3 at 11.) His job duties included servicing Nedschroef machines and providing replacement parts for those machines. (Id. at 19-20.) LePage also had the authority to issue quotations, order replacement parts from suppliers, enter into contracts, and sign checks on behalf of Nedschroef. (Id. at 19-20, 23.) He also had access to Nedschroef's passcode-protected proprietary part design drawings, customer lists, supplier lists, pricing information, and financial information. (Id. at 20, 22, 27.)
In December 2010 or January 2011, Rigole, LePage, and other Nedschroef Detroit employees were informed that Nedschroef Detroit would be closed within a year unless its business improved. (Pls.' Mot., Ex. 2 at 39-41, 74; Ex. 3 at 16-18, 31; Ex. 6 at 7.) Employees, including Rigole and LePage, received a pay cut at this time. (Id., Ex. 2 at 40; Ex. 3 at 18.) About a month later, Rigole, LePage, Rigole's wife Christine Van Looveren ("Van Looveren"), and LePage's then girlfriend and now wife Cynthia Lupo ("Lupo"), began to discuss the idea of forming a company to service Nedschroef machines and supply replacement parts for those machines purportedly in the event that Nedschroef Detroit closed. (Pl.'s Mot., Ex. 2 at 39-40; Ex. 3 at 31, 36; Ex. 4 at 9; Ex. 5 at 10.) They formed Bemas a few months later, in about June 2011, naming Van Looveren and Lupo as its owners. (Id., Ex. 6 at 6.)
According to Rigole, Bemas was formed under Van Looveren's and Lupo's names instead of Rigole's and LePage's names because an unidentified lawyer advised them that it was illegal for Rigole and LePage to open the company under their own names. (Pl.'s Mot., Ex. 2 at 42-43.) As reflected in Van Looveren's and Lupo's deposition testimony in this matter, they in fact never participated in the daily operations of Bemas and know little about Bemas' business. (Id., Ex. 4 at 14-19, 24-25, 30; Ex. 5 at 9-17.) LePage acknowledged during his deposition that Van Looveren and Lupo were "not really active" in the business of Bemas and that they probably never sent an email from Bemas' address. (Id., Ex. 3 at 40, 56.)
Rigole and LePage began selling goods and performing services on behalf of Bemas beginning in mid-June 2011, while they were still employed by Nedschroef Detroit.
Plaintiffs allege that Rigole and LePage used Plaintiffs' proprietary drawings of replacement parts in connection with Bemas' business. Steven Woloszyk, a former Nedschroef Detroit employee, testified during his deposition that Rigole instructed him to create "Bemas" drawings from original Nedschroef drawings, despite the warnings on the latter drawings that they not be reproduced. (Pls.' Mot., Ex. 13 at 35-39, 42-56, 67; Ex. 14.) Plaintiffs also retained an expert in engineering and design, Thomas DeAgostino, who concluded that Bemas drawings could have been created only by copying Nedschroef drawings and were not created through "reverse engineering" — a process by which a drawing is created by analyzing the part itself (Id., Ex. 15.) Plaintiffs also hired a computer forensic expert who determined that Rigole and LePage downloaded multiple files from their Nedschroef computers, including proprietary drawings. (Id., Ex. 25.)
Rigole and LePage testified during their depositions, however, that any drawings of parts were received from customers ordering parts from Bemas or through reverse engineering. (Pls.' Mot., Ex. 2 at 47-49, 54, 137-38, 199; Ex. 3 at 65, 66, 81; Ex. 6 at 17-18; 61-62, 6870; Defs.' Resp. Ex. 4 ¶ 4.) Rigole attests in an affidavit attached to Defendants' response brief that neither he nor Bemas removed, kept, or maintained drawings of parts of the like from Plaintiffs. (Defs.' Mot., Ex. 4 ¶ 3.) Rigole denies asking Woloszyk to make any drawings for Bemas based on Nedschroef drawings. (Pls.' Mot., Ex. 2 at 50, 108; Defs.' Resp., Ex. 4 ¶ 6.) According to Rigole, Woloszyk volunteered to create those drawings. (Pls.' Mot., Ex. 2 at 50, 108.) In his affidavit, Rigole states that Bemas never used any drawings made by Woloszyk for any purpose and that he believes Woloszyk made the drawings in an attempt to obtain a job with Bemas. (Defs.' Resp., Ex. 4 ¶¶ 8-9.)
Plaintiffs also allege that Rigole and LePage obtained from Plaintiffs' private server a list of all customers in North America that purchased a Nedschroef machine-the same customers which formed Nedschroef Detroit's customer list for replacement parts and service. (Pls.' Mot., Ex. 1.) This list was available only to authorized personnel on Plaintiffs' password-protected server. (Id.) At his deposition, LePage acknowledged that such a list was maintained on Plaintiffs' computer system (Id., Ex. 3 at 20); however, Rigole states in his affidavit that he is unaware of such a list. (Defs.' Resp., Ex. 4 ¶ 5.) According to Rigole, through his years working at Nedschroef Detroit, he has learned the names of the North American companies with Nedschroef machines and has established "pretty good" relationships with individuals at those companies. (Pls.' Mot., Ex. 2 at 58.)
According to Rigole and LePage, when those individuals contacted them in their capacity as employees of Nedschroef Detroit and expressed that Nedschroef Detroit's
In addition to appropriating Plaintiffs' proprietary drawings and customer list, Plaintiffs allege that Defendants used Nedschroef Detroit's employees, equipment, warehouse and other resources to run Bemas and compete against Nedschroef Detroit. For example, for the first two and a half years of Bemas' existence, Rigole and LePage conducted the company's business while employed by Nedschroef Detroit and using their Nedschroef-owned computers. (See, e.g., Pls.' Mot., Ex. 2 at 75-76, 157.) Bemas documents reflect, and Defendants confirmed during their testimony, that suppliers shipped parts to Bemas at Nedschroef Detroit's warehouse, where Bemas would use Nedschroef Detroit's forklift to unload the goods and then ship them to Bemas' customers. (Pls.' Mot., Ex. 23; Ex. 2 at 119-29, 140-41, 143, 148, 162-63, 165-55, 205-06; Ex. 3 at 64-65, 67, 81-93, 97, 104.)
Plaintiffs maintain that Rigole's and LePage's work for Bemas while employed by Nedschroef Detroit, ordering the same replacement parts from the same suppliers and offering the same goods and services to the same customers on behalf of Bemas and Nedschroef Detroit, led to customer confusion. As evidence of this confusion, Plaintiffs point to an email exchange between Rigole and Rich Wojtasik from Orttech. On March 15, 2012, Rigole wrote Wojtasik:
(Pls.' Mot., Ex. 20.) Wojtasik responded:
(Id.) On October 18, 2013, Todd Miller of Kamax sent "Nedschroef Order PO 400005267" to Bemas. (Pls.' Mot., Ex. 21.) When asked if it looked like Kamax was confused, LePage answered: "Most definitely." (Pls.' Mot., Ex. 3 at 106.) LePage and Rigole identified other instances where suppliers appeared confused with respect to the business with which they were dealing. (Id. at 75-76, 98, 106-07; Ex. 2 at 148-49, 166-67, 177.)
After discovering their competing business, Nedschroef terminated Rigole's and LePage's employment on July 17, 2013.
In their Complaint, Plaintiffs assert that the above-described conduct by Defendants constitutes:
(ECF No. 1.) In their pending motion, Plaintiffs seek summary judgment with respect to all counts of their Complaint and ask the Court to enter an award of damages and a permanent injunction precluding Defendants from providing replacement parts and services for Nedschroef machines in North America. With respect to damages, Plaintiffs ask that any award include interest, treble damages, and attorney's fees pursuant to Michigan's conversion statute, Michigan Compiled Laws Section 600.2919a.
During their employment, Rigole and LePage were agents of Nedschroef Detroit. See Credit Acceptance Corp. v. Dep't of Treasury, 236 Mich.App. 478, 601 N.W.2d 109, 112 (1999) (quoting Stephenson v. Golden, 279 Mich. 710, 276 N.W. 849, 857 (1937) (defining an "agent" in part as "one who acts for or in the place of another by authority from him; one who undertakes to transact some business or manage some affairs for another by authority and on account of the latter, and to render an account to it....")). "Under principles of agency, an agent owes his principal a duty of good faith, loyalty, and fair dealing." H.J. Tucker & Assoc., Inc. v. Allied Chucker & Eng'g Co., 234 Mich.App. 550, 595 N.W.2d 176, 188 (1999) (citing Burton v. Burton, 332 Mich. 326, 51 N.W.2d 297, 303 (1952)). The Michigan Courts have held that these duties prohibit an agent from "act[ing] for himself at his principal's expense during the course of his agency." Central Cartage Co. v. Fewless, 232 Mich.App. 517, 591 N.W.2d 422, 426 (1998) (citing Prod. Finishing Corp. v. Shields, 158 Mich.App. 479, 405 N.W.2d 171, 174 (1987)). The Michigan Supreme Court has explained:
Prod. Finishing, 405 N.W.2d at 174 (quoting Mich. Crown Fender Co. v. Welch, 211 Mich. 148, 178 N.W. 684, 688 (1920)) (internal quotation marks omitted). The Court subsequently stated: "[T]he law will not permit an agent to act in a dual capacity in which his interest conflicts with his duty, without a full disclosure of the facts to his principal." Sweeney & Moore v. Chapman, 295 Mich. 360, 294 N.W. 711, 712-713 (1940). "Although the parameters of this duty are not well-defined, some general rules exist. For example, an employee may take steps to establish a competing business while still employed without breaching the duty of loyalty, but the employee may not actually commence competition." In re Sullivan, 305 B.R. 809, 819 (Bankr.W.D.Mich.2004).
Defendants argue that they did not usurp any of Plaintiffs' corporate opportunities because "Bemas would only provide parts and/or service to Nedschroef machines if customers previously requested a quote for the same part or service from Nedschroef and the quote was rejected by the customer." (Defs.' Resp. Br. at 3.) Thus, Defendants maintain, "Bemas was not in any way in direct competition with Plaintiff[ ]" and "[n]o evidence has been provided to show that Bemas took any business from Plaintiff." (Id.) Even if true, however, Michigan case law establishes that LePage and Rigole breached their fiduciary duties and misappropriated Plaintiffs' corporate opportunities. Prod. Finishing, 405 N.W.2d at 175; Rapistan Corp. v. Michaels, 203 Mich.App. 301, 511 N.W.2d 918 (1994) ("[W]hen a corporation's fiduciary uses corporate assets to develop a business opportunity, the fiduciary is estopped from denying that the resulting opportunity belongs to the corporation whose assets were misappropriated, even if it was not feasible for the corporation to pursue the opportunity or it had no expectancy in the project.") (emphasis added).
In Production Finishing, the plaintiff provided goods and services to the automotive industry, which included the service of steel polishing. 405 N.W.2d at 172. The plaintiff did most of the polishing work in the Detroit area with the exception of the polishing work for Ford Motor Company which had its own polishing plant. Id. The acquisition of the Ford business was a longstanding objective of the plaintiff. Id. When the plaintiff's president, the defendant, learned that Ford was considering ceasing its polishing operation, he brought it to the attention of the plaintiff's board of directors which instructed the defendant to investigate the matter. Id. at 172-73.
The defendant contacted a Ford representative to discuss the plaintiff's handling of Ford's finishing business. Id. at 173. Ford's representative indicated that he was against the proposal because it would give the plaintiff a monopoly in the area.
At trial, the plaintiff unsuccessfully moved for judgment notwithstanding the verdict on its claims that the defendant breached his fiduciary duties and diverted a corporate opportunity. The Michigan Court of Appeals reversed the trial court's denial of the plaintiff's motion, holding that the defendant violated the law when he pursued the Ford polishing business and purchased the Ford equipment while serving as the plaintiff's president without disclosing his actions to his employer. Id. at 173-74. The court held that Ford's refusal to deal with the plaintiff did not relieve the defendant from liability when he failed to disclose the refusal to his principal. Id. at 175.
The evidence shows that LePage and Rigole used Plaintiffs' resources (such as, computers, staff, warehouse, and a forklift) to start up and run Bemas. LePage and Rigole did not inform their superiors that they were offering the same goods and services to Nedschroef Detroit's customers that Nedschroef Detroit offers when the customers indicated that Nedschroef Detroit's prices were too high or its delivery time too long. In fact, LePage and Rigole did not tell their superiors that they had started a competing business.
For these reasons, the Court concludes that Plaintiffs are entitled to summary judgment with respect to their breach of duty of loyalty (Count X) and breach of fiduciary duty and misappropriation of corporate opportunities (Count XI) claims against LePage and Rigole.
To succeed on a claim for misappropriation of a trade secret under Michigan law, a plaintiff must prove: "1) the existence of a trade secret; 2) its acquisition in confidence; and 3) the defendant's unauthorized use of it." Utilase, Inc. v. Williamson, Nos. 98-1233, 98-1320, 1999 WL 717969, at *6 (6th Cir. Sept. 10, 1999) (citing Rothschild v. Ford Motor Co., 2 F.Supp.2d 941, 950 (E.D.Mich.1998)) (citing Aerospace Am., Inc. v. Abatement Techs., 738 F.Supp. 1061, 1069 (E.D.Mich. 1990)). The Michigan Uniform Trade Secrets Act ("MUTSA") defines a "trade secret" as
Mich. Comp. Laws § 445.1902(d). Under MUTSA, "misappropriation" means one of the following:
Mich. Comp. Laws § 445.1902(b). The statute defines the term "improper means" to include "breach ... of a duty to maintain secrecy...." Id. § 445.1902(a).
Plaintiffs maintain that there is no genuine issue of material fact that Defendants misappropriated Plaintiffs' trade secrets, including its proprietary part drawings and confidential customer lists. Defendants respond with evidence creating an issue of fact with respect to whether LePage and Rigole took proprietary drawings directly from Plaintiffs (and altered them) for use by Bemas or whether they instead received those drawings through customers or reverse engineering.
Assuming Defendants' version of the events as true, some of the drawings Bemas used were Plaintiffs' proprietary drawings which Defendants received from their customers (i.e. former Nedschroef Detroit customers). At least some of those customers received the drawings from Rigole and LePage when they
The undisputed evidence suggests that Defendants acquired Plaintiffs' trade secrets knowing that those trade secrets were acquired through breach of a duty to maintain their secrecy. At the very least, Defendants knew that use of Plaintiffs' proprietary drawings was limited to a use which served Plaintiffs. Yet Defendants used those drawings for an unauthorized use — i.e. to manufacture and sell parts to be sold by Bemas in direct competition with Nedschroef Detroit.
The Court therefore concludes that Plaintiffs are entitled to summary judgment with respect to their misappropriation claim (Count III).
In their Complaint, Plaintiffs assert common law and statutory conversion claims. The first is established by showing "any distinct act of domain wrongfully exerted over another's personal property in denial of or inconsistent with the rights therein." Foremost Ins. Co. v. Allstate Ins. Co., 439 Mich. 378, 486 N.W.2d 600, 606 (1992). "Conversion may occur when a party properly in possession of property uses it in an improper way, for an improper purpose, or by delivering it without authorization to a third party." Dep't of Agric. v. Appletree Mktg. LLC, 485 Mich. 1, 779 N.W.2d 237, 244-45 (2010).
Michigan's conversion statute provides, in pertinent part:
Mich. Comp. Laws § 600.2919a. In order to prevail on a claim for statutory conversion, a plaintiff must satisfy the elements of a common law conversion claim, as well as demonstrate that the defendant had "actual knowledge" of the converting activity. See Echelon Homes, LLC v. Carter Lumber Co., 472 Mich. 192, 694 N.W.2d 544, 547-48 (2005) (holding that under Michigan's conversion statute, "constructive knowledge is not sufficient; a defendant must know that the property was stolen, embezzled, or converted.").
For the reasons discussed in the preceding sections, the undisputed evidence establishes that Defendants converted Plaintiffs' proprietary drawings and other property when they used the property to directly compete against Nedschroef Detroit. There can be no dispute that Plaintiffs knowingly converted Plaintiffs' property. As such, the Court concludes that Plaintiffs are entitled to summary judgment with respect to their conversion and statutory conversion claims (Counts V and VI).
Plaintiffs assert that Defendants' engagement in a competing business while employed by Nedschroef Detroit caused confusion with respect to the source of the goods and services provided to customers, thereby violating the Lanham Act, Michigan Consumer Protection Act ("MCPA"), and unfair competition under the common law. As Plaintiffs assert, to obtain summary judgment on each of these claims, they must show that there is no genuine issue of material fact that Defendants alleged activities resulted in a "likelihood of confusion." Audi AG v. D'Amato, 469 F.3d 534, 542 (6th Cir.2006) (holding that the "likelihood of confusion" test applies to claims for trademark infringement, unfair competition, and false designation brought under the Lanham Act); Carson v. Here's Johnny Toilets, Inc., 698 F.2d 831, 833 (6th Cir.1983) (holding the same as to claims of unfair competition brought under Michigan common law); Homeowners Grp. v. Home Mktg. Specialists, 931 F.2d 1100, 1105 n. 1 (6th Cir.1991) (holding the same as to claims brought under Michigan Consumer Protection Act). Not all conduct that causes a likelihood of confusion is prescribed by the Lanham Act or MCPA, however.
As relevant to Plaintiffs' false designation/false advertising claim under the Lanham Act, the statute imposes liability on "any person who, on or in connection with any goods or services ... uses in commerce... any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... is likely to cause confusion, or to cause mistake, or to deceive ... as to the origin ... of his goods, services, or commercial activities." 15 U.S.C. § 1125(a)(1)(A) (emphasis added). Plaintiffs do not allege that Defendants used a false designation of origin, a misleading description of fact, or made false or misleading representations of fact. According to Plaintiffs, any confusion was simply caused by Rigole's and LePage's dual roles as representatives of Nedschroef Detroit and Bemas. Thus Plaintiffs are not entitled to summary judgment with respect to their Lanham Act claim.
The MCPA provides inter alia:
Mich. Comp. Laws § 445.903 (emphasis added). The MCPA specifically defines "trade or commerce" as "the conduct of a business providing goods, property, or service primarily for personal, family, or household purposes ...." Mich. Comp. Laws § 445.902(1)(g) (emphasis added). As the Michigan Supreme Court has recognized: "the MCPA applies only to purchases by consumers and does not apply to purchases that are primarily for business purposes ... `if an item is purchased primarily for business or commercial rather than personal purposes, the MCPA does not supply protection.'" Slobin v. Henry Ford Health Care, 469 Mich. 211, 666 N.W.2d 632, 634-35 (2003) (quoting Zine v. Chrysler Corp., 236 Mich.App. 261, 600 N.W.2d 384 (1999)). The conduct giving rise to this action did not involve consumer purchases; instead, they involved business or commercial transactions, only. Thus the MCPA is inapplicable.
On the other hand, it appears that Defendants' conduct does fall within the proscriptions of a common law unfair competition claim. See In re MCI Telecomm.
As stated earlier, the test for assessing likelihood of confusion in the context of a common law unfair competition claim is that test used for a Lanham Act claim. The Sixth Circuit Court of Appeals has articulated eight factors for making this assessment:
Frisch's Rest., Inc. v. Elby's Big Boy of Steubenville, Inc., 670 F.2d 642, 648 (6th Cir.1982). "These factors are not immutable, but merely indicate the need for weighted evaluation of the pertinent facts in arriving at the legal conclusion of confusion." Frisch's Rest., Inc. v. Shoney's Inc., 759 F.2d 1261, 1264 (6th Cir.1985). Several of the factors are not relevant in the present case. Of those factors that are relevant, a sufficient number weigh in favor of finding a likelihood of confusion.
Specifically, Plaintiffs and Bemas do not simply sell related goods. Instead, as Defendants acknowledge, they sell the exact same goods and provide the exact same services. Nedschroef Detroit and Bemas used the same marketing channels: Rigole and LePage, in their dual capacities representing Nedschroef Detroit and Bemas. Finally, contrary to Defendants' assertion in response to Plaintiffs' motion, there is evidence of actual confusion in the marketplace — i.e., suppliers of goods to Nedschroef Detroit and Bemas which were confused as to which entity placed a particular order. (See Pls.' Mot., Ex. 2 at 166-67, 177; Ex. 3 at 75-76, 98, 106-07; Exs. 19, 20, 22.) While Plaintiffs may not present evidence of confusion by buyers, this is not required. Further, the test is "likelihood of confusion", not "actual confusion." See Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104, 108 (4th Cir.1991) (quoting Soweco Inc. v. Shell Oil Co., 617 F.2d 1178, 1185-86 (5th Cir.1980)) ("Though Soweco lists `actual confusion' as one factor that courts must consider, it clearly states that `proof of actual confusion is unnecessary; the likelihood of confusion is the determinative factor.'") (emphasis in original); see also SquirtCo. v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir.1980) (same).
For these reasons, the Court concludes that Plaintiffs are not entitled to summary judgment with respect to their Lanham Act and MCPA claims (Counts I and II). However, Plaintiffs are entitled to summary judgment with respect to their common
Under Michigan law, a claim of tortious interference with a business expectancy requires proof of "`the existence of a valid business relationship or expectancy, knowledge of the relationship or expectancy on the part of the defendant, an intentional improper interference by the defendant inducing or causing a termination of the relationship or expectancy, and resultant damage to the plaintiff.'" Cedroni Associates, Inc. v. Tomblinson, Harburn Assoc., Architects & Planners, Inc., 492 Mich. 40, 821 N.W.2d 1, 3 (2012) (quoting Dalley v. Dykema Gossett, PLLC, 287 Mich.App. 296, 788 N.W.2d 679, 696 (2010) (additional citations omitted)). Proof that the interference was "improper" can be shown by proving either "(1) the intentional doing of an act wrongful per se, or (2) the intentional doing of a lawful act with malice and unjustified in law for the purpose of invading [the] plaintiff['s] contractual rights or business relationship." Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass'n, 257 Mich.App. 365, 670 N.W.2d 569, 580 (2003) (citation omitted).
Defendants do not challenge Plaintiffs' evidence establishing the first three elements of this claim. Defendants argue, however, that Plaintiffs cannot establish the last element — resulting damage — because Bemas only provided parts for and/or serviced Nedschroef machines if customers previously requested a quote for the same part or service from Nedschroef Detroit and rejected the quote. The flaw in Defendants' argument is that before Rigole and LePage formed Bemas, there was only one source in North America for the majority of the parts needed for Nedschroef machines: Nedschroef Detroit. (Pls.' Mot., Ex. 1 ¶ 7.) Thus although Plaintiffs' customers may have asked LePage and Rigole for an alternative source to purchase those parts, if none had been offered, the customer would have had to purchase the parts from Nedschroef Detroit at the price quoted or go without the part. Presumably the latter option was not a realistic one where the customer relies on the parts to operate their Nedschroef machine.
The Court therefore concludes that Plaintiffs present evidence to demonstrate their entitlement to summary judgment on their tortious interference claim (Count VII).
An unjust enrichment claim under Michigan law requires proof of the following: "(1) receipt of a benefit by the defendant from the plaintiff and (2) an inequity resulting to [the] plaintiff because of the retention of the benefit by the defendant." Erickson's Flooring & Supply Co. v. Tembec, USA, LLC, 212 Fed.Appx. 558, 564 (6th Cir.2007) (quoting Barber v. SMH (US), Inc., 202 Mich.App. 366, 509 N.W.2d 791, 796 (1993)). As addressed earlier, Plaintiffs establish that, at the very least, Defendants used Plaintiffs' employees, computers, warehouse, and equipment to start up and run Bemas. Defendants also engaged in business on behalf of Bemas while employed by and receiving a wage from Nedschroef Detroit. Through the use of Plaintiffs' resources, Defendants were able to obtain profits for Bemas. It would be inequitable to allow Defendants to retain the financial benefit obtained through their use of Plaintiffs' resources.
Accordingly, Plaintiffs are entitled to summary judgment with respect to their unjust enrichment claim (Count VIII).
Proof of a civil conspiracy in violation of Michigan law requires proof of "`(1) a concerted action (2) by a combination of two or more persons (3) to accomplish an unlawful purpose (4) or a lawful purpose by unlawful means.'" Petroleum Enhancer, LLC v. Woodward, 558 Fed. Appx. 569, 580 (6th Cir.2014) (quoting Mays v. Three Rivers Rubber Corp., 135 Mich.App. 42, 352 N.W.2d 339, 341 (1984)). "Under Michigan law, `a claim for civil conspiracy may not exist in the air; rather, it is necessary to prove a separate actionable tort.'" Id. (quoting Early Detection Ctr., P.C. v. N.Y. Life Ins. Co., 157 Mich.App. 618, 403 N.W.2d 830, 836 (1986)). During their depositions, Rigole and LePage testified that they decided, with their wives, to create Bemas to compete directly with Nedschroef Detroit. As established earlier, this conduct was accomplished through unlawful means, such as LePage's and Rigole's breach of their fiduciary duties, misappropriation of corporate opportunities, and conversion of Plaintiffs' assets.
Plaintiffs therefore are entitled to summary judgment with respect to their civil conspiracy claim (Count IX).
Plaintiffs seek a permanent injunction and damages, including treble damages, attorney's fees, and interest pursuant to Michigan's conversion statute. Plaintiffs also seek an evidentiary hearing to determine their economic damages from January 1, 2014 through the date any injunction is entered.
A plaintiff prevailing on the merits may obtain a permanent injunction by showing:
eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). The Court finds that these factors have been satisfied.
With respect to the first and second factors, "a plaintiff's harm is not irreparable if it is fully compensable by money damages. However, an injury is not fully compensable by money damages if the nature of the plaintiff's loss would make damages difficult to calculate." Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.1992). Defendants' conduct has caused a loss of goodwill and competitive market position for Plaintiffs (see Pls.' Mot., Ex. 1 ¶ 8) — injuries which courts have recognized cannot be fully compensable by monetary damages. See, e.g., Basicomputer Corp., 973 F.2d at 512; FirstEnergy Solutions Corp. v. Flerick, 521 Fed.Appx. 521, 529 (6th Cir.2013) (finding irreparable injury where the defendant directly contacted the plaintiff's customers because, if "[the defendant] succeeds in luring [the plaintiff's] potential customer base to [the defendant's new employer], [the plaintiff] may never be able to recover that lost business[.]").
The balance of hardships favors an injunction precluding Defendants from continuing to unfairly compete against Plaintiffs. Defendants acknowledge that Nedschroef machines make up only a small percentage of the fastener machines in North America. (Pls.' Mot., Ex. 2 at 22) (Rigole testifying that Nedschroef's market share in North America is "not a huge one" and guessing that it
Finally, the public interest is served by an injunction. The public has an interest in discouraging unfair competition. Brake Parts, 443 Fed.Appx. at 33; Hoover Transp. Services, Inc. v. Frye, 77 Fed. Appx. 776, 785 (6th Cir.2003).
Thus the Court is entering a permanent injunction precluding Defendants from providing replacement parts or services for Nedschroef machines in North America.
Michigan courts have long recognized that an agent may forfeit his right to compensation under a contract for services when the agent engages in misconduct or grossly mismanages his principal's affairs. See Toy ex rel. Ketcham v. Lapeer Farmers Mut. Fire Ins. Ass'n, 297 Mich. 188, 297 N.W. 230, 231-32 (1941); Sweeney & Moore, 294 N.W. at 712-13; Rippey v. Wilson, 280 Mich. 233, 273 N.W. 552, 556 (1937). As such, Plaintiffs are entitled to recover the wages they paid Rigole and LePage from the time they started Bemas through the date they were terminated. Plaintiffs present evidence to show that, during this time frame, Plaintiffs paid Rigole $281,143 and LePage $286,749. (Pls.' Mot., Ex. 26 at 4.) Defendants do not dispute these calculations in response.
Michigan law also establishes that Plaintiffs are entitled to recover the profits Bemas gained as a result of LePage's and Rigole's breach of their fiduciary duties and usurpation of corporate opportunities. Central Cartage Co., 591 N.W.2d at 426 (quoting Production Finishing, 405 N.W.2d at 174) ("If an agent acquires any pecuniary advantage to himself from third parties by means of his fiduciary character, he is accountable to his employer for the profit made."). According to Plaintiffs' evidence, Bemas' net profits from 2011 through 2013 were $393,971. (Pls.' Mot., Ex. 26 at 4.) Again, Defendants do not dispute these calculations in response. Thus Plaintiffs are entitled to an award that includes this amount, plus any net profits established from 2013 forward.
For the reasons stated, the Court holds that Plaintiffs are entitled to summary judgment with respect to all of their claims against Defendants, except their claims alleging violations of the Lanham Act and Michigan Consumer Protection Act (Counts I and II). The Court further holds that Plaintiffs are entitled to a permanent injunction and damages representing (a) the wages Nedschroef Detroit paid to LePage and Rigole while they were operating Bemas and (b) Bemas' net profits. Finally, the Court concludes that Plaintiffs are entitled to treble damages, attorney's fees, and costs.
Accordingly,