5/19-104, and Airtek failed to file such a pleading, Combined Metals argues the count must be dismissed. Airtek argues that the verification requirement is a matter of Illinois procedure which has no application in federal court.
A handful of opinions, apparently relying on FED. R. CIV. P. 64, concluded that a verified pleading must be filed consistent with the Illinois replevin statute even though the case is in federal court. See ITT Commercial Fin. Corp. v. Tuf Racing Prod., 1995 U.S. Dist. LEXIS 1652, No. 94 C 5403, WL 57601 (N.D. Ill. Jan. 27, 1995); Harris Graphics Corp. v. F.C.L. Graphics, Inc., 1987 U.S. Dist. LEXIS 5996, No. 84 C 5814, WL 13433 (N.D. Ill. June 30, 1987). To avoid a dispute, the court directs Airtek to file a verified pleading with respect to count III.
C. Count IV - Conversion
Like count III, count IV alleges that Combined Metals is in unlawful possession of the Airtek die and design specifications. Airtek claims that it is the owner of such property and has an unconditional right to immediate possession. Combined Metals argues that the count should be dismissed because the plain, unambiguous language of the contract says that Airtek is entitled to possession at the end of 1998 only after it purchases at least 80,000 catalytic converter shells per month for two years. Since Airtek did not purchase the shells for two years, Combined Metals argues that Airtek failed to fulfill the condition precedent specified in the contract, therefore, it does not have to return the property. See Palda v. General Dynamics Corp., 47 F.3d 872, 876 (7th Cir. 1995) ("Where a plaintiff's cause of action arises out of a contract which is attached to the complaint as an exhibit, and such attachment shows unambiguously on its face that the relief prayed for is not merited, dismissal is both justified and appropriate.").
The court will not dismiss the count at this time. The "contract" submitted by Combined Metals -- which consists of a letter to Airtek -- simply states that "Airtek will assume ownership of the tooling at the end of 1998." The context of the letter is one which clearly contemplates a relationship between the parties that terminates at the end of 1998 -- that is why the letter states that Airtek will regain ownership of the property at the end of 1998. There is no provision, however, which deals with the situation presently before the court: the termination of the relationship before the end of 1998. The letter doesn't say that if the contract is terminated prior to the end of 1998, Combined Metals is entitled to keep the property. Accordingly, Combined Metals' argument is without merit.
D. Count V - ITSA
Count V alleges that the Airtek die and the knowledge of producing the catalytic converter shells used to build and develop the Airtek die constitutes a trade secret within the meaning of the ITSA. The count further alleges that Combined Metals misappropriated the trade secret by utilizing the Airtek die and design specifications to produce and sell parts to competitors. Combined Metals seeks to dismiss the count for two independent reasons.
First, Combined Metals argues that Airtek failed to plead the elements required to state an ITSA violation -- namely, that it derives value from the alleged trade secret; that the information underlying the trade secret is not generally known to the relevant public; and that it took steps to maintain the secrecy of the information. See 765 ILCS 1065/2(d). In response, Airtek defers to "notice pleading standards."
The court agrees with Airtek.
By definition, a trade secret is information that "is sufficiently secret to derive economic value ... from not being generally known to other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality." 765 ILCS 1065/2(d)(1) and (2). Thus, by claiming that it possesses a trade secret, Airtek implicitly pleads that it derives economic value from the information, that the information is not generally known to the public, and that it took steps to maintain the secrecy of the information. Airtek has stated a claim under the ITSA.
Next, Combined Metals argues that Airtek fails to identify the trade secret. The counterclaim does, however, state that the trade secret is the Airtek die and the knowledge of producing the catalytic converter shells used to build and develop the die -- it appears that there are two trade secrets here. Once again, Airtek defers to "notice pleading standards."
The court, however, has a problem here. In a recent trade secret case -- a case cited by both parties -- before this court, the defendants were confused at the time of summary judgment as to the alleged trade secret. See Thermodyne, 940 F. Supp. at 1304-05. The court will not entertain such a dispute at such a late stage in the proceeding again. In the counterclaim, Airtek claims that the trade secret is: (1) the Airtek die itself and additionally (2) the knowledge of producing the catalytic converter shells used to build and develop the Airtek die. Thus, as noted, there appear to be two trade secrets here -- the die and the knowledge of producing the catalytic converter shells.
Airtek will be held to those trade secrets, i.e., it will not be permitted to change or narrow them as the case progresses. If there is a more specific technology underlying the die or the knowledge of producing the catalytic converter shells that Airtek desires to claim as a trade secret, Airtek better put Combined Metals on notice of such technology now (by filing an amended counterclaim) or forfeit the right to claim such technology as a trade secret at a later time in this case. Moreover, the court tends to agree with Combined Metals that the alleged trade secret regarding the knowledge of producing the catalytic converter shells is too broad.
See Composite Marine Propellers, Inc., v. Van Der Woude, 962 F.2d 1263, 1266 (7th Cir. 1992). Accordingly, the court expects an amended counterclaim from Airtek identifying specific, concrete secrets underlying the process of producing the catalytic converters.
E. Count VI - UDTPA
Count VI is premised on a violation of the UDTPA. Airtek alleges that Combined Metals' conduct in producing and selling catalytic converter shells made from the Airtek die to competitors of Airtek created a likelihood of confusion in the market place as to whether catalytic converter shells manufactured by Airtek's competitors are in fact manufactured by Airtek. Combined Metals seeks to dismiss the count on the ground that there are no allegations that the catalytic converter shells contain any kind of a distinctive mark which identify the shells as an Airtek product. The court agrees.
Airtek's UDTPA claim is premised on violations of § 2(2) and § 2(12). See 815 ILCS 510/2(2) and (12). Those subsections provide that:
A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he:
(2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;