United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L.ELLIS, United States District Judge
diversity action arises out of a short-lived employment
arrangement between Plaintiff Prominence Advisors, Inc.
(“Prominence”) and its former employee, Defendant
Joseph Dalton. After employing Dalton for a few months, and
less than a month after entering into an employment
agreement, Prominence fired Dalton. Prominence now brings
this suit alleging that subsequent to Dalton's
termination he breached the terms of the employment agreement
by failing to return property belonging to Prominence,
soliciting or encouraging one of Prominence's employees
to resign from Prominence, and disparaging Prominence to that
same employee (Count I). Prominence also alleges that Dalton
has misappropriated Prominence's trade secrets in
violation of the Defend Trade Secrets Act
(“DTSA”), 18 U.S.C. § 1831 et seq.,
(Count II), and the Illinois Trade Secrets Act
(“ITSA”), 765 Ill. Comp. Stat. 1065/1 et
seq., (Count III). Dalton moves to dismiss  the
breach of contract claims in Count I relating to employee
solicitation and non-disparagement, and Counts II and III in
their entirety. Because Prominence alleges facts from which
the Court could reasonably infer that Dalton disparaged
Prominence and either solicited or encouraged its employee to
resign, the Court denies the motion to dismiss the breach of
contract claims. Because Prominence fails to allege facts
that plausibly show that Dalton misappropriated its trade
secrets, the Court grants the motion to dismiss Counts II and
III, without prejudice.
is an Illinois company that provides tools and services
related to various software programs used in the health care
field. Prominence hired Dalton, a citizen of Minnesota, as
its Director of Technology. The parties entered into an
employment agreement (the “Agreement”) in April
2016 with an effective date of January 1, 2016. As part of
the agreement, and as a condition of his offer of employment,
Dalton agreed to several restrictive covenants contained in
the Agreement. These included a Covenant Against Competition,
Non-Solicitation of Customers, and Non-Solicitation of
Employees. Doc. 1-1 § 4. The Agreement also included a
requirement that Dalton return all property, including
confidential information belonging to Prominence, at the end
of his employment. Doc. 1-1 § 10. And the Agreement
contained a non-disparagement clause, barring Dalton from
disparaging Prominence. Doc. 1-1 § 11.
furtherance of its business activities, Prominence has
developed and maintained confidential information related to
its operations (“Confidential Information”). This
Confidential Information includes customer and potential
customer information, employee agreements, training and
review programs and techniques, personnel data, and other
electronic data. Prominence protects this Confidential
Information from disclosure to third parties, and Prominence
gains a competitive advantage from keeping this information
Dalton was employed as the Director of Technology at
Prominence, he was responsible for migrating electronic files
containing Confidential Information from a cloud based system
known as Aero FS to another system called DropBox. As part of
the migration, Dalton backed up copies of the Confidential
Information on an external hard drive. Additionally, Dalton
has retained access to the DropBox folders on two of his
after entering into the Agreement, Dalton's relationship
with Prominence soured. On May 13, 2016, Prominence
terminated Dalton's employment. Immediately after his
termination, Dalton contacted another Prominence employee,
Ben Reusser. Immediately after Dalton spoke with Reusser,
Reusser informed Prominence that Dalton had contacted him and
had relayed Dalton's version of events relating to the
termination. Five days later, Reusser resigned from
Prominence, stating that he could not reconcile what Dalton
had told him about the termination with the story Prominence
had told him and that he wished to continue working with
result of Reusser's departure, Prominence was no longer
able to perform on a high-value consulting agreement it had
with Johns Hopkins, and was forced to terminate the
agreement, forfeiting over $475, 000 in fees.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion
to dismiss, the Court accepts as true all well-pleaded facts
in the plaintiff's complaint and draws all reasonable
inferences from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint
must not only provide the defendant with fair notice of a
claim's basis but must also be facially plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678, 129 S.Ct. 1937.
Count I: Breach of Contract
alleges that Dalton breached Sections 4, 10, and 11 of the
Agreement. Section 4 includes the restrictive covenants
barring Dalton from competing with Prominence, soliciting
Prominence's customers, and soliciting Prominence's
employees. Section 10 requires Dalton to return all property
belonging to Prominence at the end of his employment with
Prominence, including Confidential Information. And Section
11 bars Dalton from disparaging Prominence in anyway. Dalton
moves to dismiss Prominence's breach of contract claims
arising from alleged breaches of Sections 4 and 11 for
failure to allege facts sufficient to establish a breach of
those provisions. Dalton concedes that Prominence adequately
alleges a breach of Section 10.
initial matter, Prominence argues that Dalton's motion to
dismiss the parts of Count I arising from his alleged
breaches of Sections 4 and 11 fails because a defendant
cannot partially dismiss counts, and that by conceding the
claim arising from the breach of Section 10 is properly
pleaded, Dalton cannot dismiss the claim arising under
Sections 4 and 11. This is a misunderstanding of the law.
Parties may not partially dismiss claims. BBL,
Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir.
2015). But claims and counts are not the same thing.
Liston v. King.com, Ltd., 254 F.Supp.3d 989, 1002
(N.D. Ill. 2017). Claims are grievances arising from
particular sets of facts whereas counts are the legal
theories upon which the plaintiff seeks redress for those
grievances. See Lucas v. Vee Pak, Inc., 68 F.Supp.3d
870, 876 (N.D. Ill. 2014) (stating claims are “the
plaintiff's grievance and demand relief, and
‘counts, ' [are] legal theories by which those
facts purportedly give rise to liability and damages”).
Defendants can move to dismiss some claims brought under a
single count without moving to dismiss the entire count.
Spriesch v. City of Chicago, No. 17 C 1952, 2017 WL
4864913, at *2 (N.D. Ill. Oct. 26, 2017). The allegations
underlying Prominence's claim for breach of Section 10
are Dalton's continued possession of the hard drive and
access to the DropBox. ...