MEMORANDUM DECISION AND ORDER DENYING [473] DEFENDANT LELAND SYCAMORE'S MOTION FOR JUDGMENT AS A MATTER OF LAW ON STATUTE OF LIMITATIONS GROUNDS OR FOR NEW TRIAL

DAVID NUFFER, District Judge.

Defendant Leland Sycamore ("Sycamore") filed a Motion for Judgment as a Matter of Law on Statute of Limitations Grounds or for New Trial (the "Motion").1 Plaintiff Bimbo Bakeries USA, Inc. ("Bimbo Bakeries") opposes the Motion (the "Opposition").2 Sycamore seeks a judgment barring the trade secret misappropriation claim on statute of limitations grounds, or a new trial to address the statute of limitations issue. The statute of limitations was not tried or submitted to the jury, which means judgment as a matter of law under Rule 50 is improper. And the decision to deny Sycamore leave to amend his answer to include the statute of limitations defense will not be reconsidered. Therefore, the Motion is denied.

BACKGROUND

After Bimbo Bakeries' case in chief at trial, Sycamore moved to amend his answer (the "Motion to Amend")3 to add an affirmative defense that the trade secret misappropriation claim against him is barred by the three-year statute of limitation in the Utah Uniform Trade Secret Act (the "UTSA").4 The Motion to Amend was denied under Rule 15(b)5 because the amendment was untimely and because Bimbo Bakeries did not consent to trying the statute of limitations issue.6 Sycamore's concurrent motion for judgment on the matter of law on the statute of limitations was denied on the same grounds.7 Sycamore now moves for judgment as a matter of law under Rule 50(b), which permits a party to renew its motion for judgment as a matter of law after a jury verdict.8

DISCUSSION

The Motion Is Not Governed by Rule 50.

Although the Motion is brought as a motion for judgment as a matter of law, Rule 50 does not apply to Sycamore's instant Motion.9 Rule 50 permits the court to assess the sufficiency of the evidence "[i]f a party has been fully heard on an issue during a jury trial."10 Under Rule 50, a judge may grant judgment as a matter of law at trial or submit the issue to the jury subject to a renewed motion for judgment as a matter of law after the issue is decided by the verdict.11 In this case, Sycamore's statute of limitations defense was not rejected by the jury or even submitted to the jury; rather, the affirmative defense was excluded from trial altogether.12 The sufficiency of the evidence on the statute of limitations defense cannot be assessed because, although evidence of the timeline of events was introduced as part of Bimbo Bakeries' presentation of evidence on its trade secret misappropriation claim, the statute of limitations defense was not "fully heard" during the jury trial. As the Motion to Amend was denied, the jury did not decide the statute of limitations issue, nor were they instructed on the statute of limitations for trade secret misappropriation.13

The Motion to Amend Will Not Be Reconsidered.

Sycamore's Motion is, in substance, a motion to reconsider the denial of Sycamore's Motion to Amend his answer. The Motion to Amend was already decided by an October 2, 2017 order.14 Motions to reconsider, to the extent such motions are recognized, are disfavored.15

Sycamore did not satisfy Rule 15(b) for amendments to the pleading during trial.16 Rule 15(b)(2) does not apply because Bimbo Bakeries did not expressly or implicitly consent to trial of the statute of limitations issue.17 Rule 15(b)(1) applies when a party objects to evidence offered at trial that "is not within the issues raised in the pleadings."18 Bimbo Bakeries at no point objected to an attempt by Sycamore to introduce evidence on the statute of limitations. Instead, Sycamore sought to amend his answer to add an affirmative defense, a new legal theory, based on the evidence elicited by Bimbo Bakeries about the timing of Sycamore initial disclosure of the trade secret in 2008.19

Sycamore waived the statute of limitations by not pleading the affirmative defense in his answer to the complaint,20 in his answer to the amended complaint,21 or at any time prior to the middle of trial.22 The statute of limitations is an affirmative defense that is waived if not pleaded in the answer.23 The statute of limitations defense is specifically listed as an affirmative defense subject to waiver under Rule 8(c)(1).24 A defendant generally bears the burden of both pleading and proving a statute of limitations affirmative defense.25 Sycamore did not carry that burden. "It is well settled in this circuit that untimeliness alone is a sufficient reason to deny leave to amend."26 Because Sycamore, the party seeking to amend a pleading, knew or should have known of the facts upon which the proposed amendment is based but failed to include the affirmative defense in his original pleading, the Motion to Amend is subject to denial.27

Sycamore's Delayed Assertion of the Statute of Limitations Is Unjustified.

Sycamore's assertion that he learned of the facts on which he could base a statute of limitations defense during Bimbo Bakeries' case in chief28 is rejected. Under Utah Code § 13-24-7, an action for misappropriation must be "brought within three years after the misappropriation is discovered or, by the exercise of reasonable diligence, should have been discovered."29 In applying this statute of limitations, the UTSA provides that "a continuing misappropriation constitutes a single claim,"30 which means Utah law applies the "single claim theory." Under the single claim theory, the statute of limitations begins to run once a plaintiff learns a defendant improperly disclosed trade secrets.31 A claim for misappropriation of a trade secret arises for a given plaintiff against a given defendant only once, at the time of the initial misappropriation, subject to the discovery rule.32 The single claim rule can work to the disadvantage of a plaintiff pursing a claim against a particular defendant for trade secret misappropriation that unfolded over time with an early first disclosure of the trade secret. In such cases, the statute of limitations runs from the first disclosure, subject to the discovery rule, notwithstanding use or acquisition of the trade secret even years later.

The single claim rule applies equally to a defendant claiming protection under the statute of limitations. Sycamore cannot say he did not know that his 2008 disclosure gave rise to a statute of limitations defense. Sycamore argues that he did not plead a statute of limitations defense earlier because he assumed Bimbo Bakeries would present evidence of post-2008, intervening acts of misappropriation.33 However, such evidence would have had no bearing on the statute of limitations, which began to run from Sycamore's first act of misappropriation against Bimbo Bakeries and its predecessors. Sycamore's statute of limitations defense was available from the outset of this case. The defense was not pleaded; it was waived; and the untimely Motion to Amend to include the defense was properly denied.

ORDER

THEREFORE, IT IS HEREBY ORDERED that the Motion34 is DENIED.