United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANTS' MOTION TO
DISMISS OR TRANSFER 
STEPHEN J. MURPHY, III United States District Judge.
Trek, Inc. brought suit against Defendants ITR America, LLC,
Mark Davis, and James Marcum, alleging nine causes of action:
(1) Breach of Fiduciary Duty (Davis and Marcum); (2) Breach
of Contract (Davis and Marcum); (3) Michigan Uniform Trade
Secrets Act, Mich. Comp. Laws § 445.1901; (4) Defend
Trade Secrets Act, 18 U.S.C. § 1836(b); (5) Unfair
Competition; (6) Unjust Enrichment; (7) Tortious Interference
With an Advantageous Business Relationship or Expectancy; (8)
Statutory and Common-Law Conversion (Davis and Marcum); and
(9) Computer Fraud and Abuse Act, 18 U.S.C. § 1030.
Defendants filed a motion to dismiss or transfer the case.
For the following reasons, the Court will deny the motion.
the summer of 2016, Trek employed both Davis and Marcum.
Davis managed Trek's Michigan Sales & Purchasing
branch; Marcum managed the Nevada Sales branch. About eight
months ago, both Davis and Marcum left Trek and went to work
for Trek's competitor, ITR. Trek claims that after Davis
decided to leave Trek to work for ITR, he downloaded
information from Trek's consumer information database
onto a portable hard drive. Trek alleges that, after the
download, Davis deleted information from the Trek computer
and the log record. Trek makes similar claims regarding
to Trek's complaint, ITR induced both employees to take
the information, provided technical expertise to assist, and
accessed Trek's confidential internal computer systems.
Trek claims that ITR used the confidential information taken
by Davis and Marcum to compete against Trek. For instance,
Trek alleges that ITR has recently submitted price quotes to
Trek customers using Trek's unique internal reference
numbers which are not publically available.
weeks before Trek filed suit against ITR, Davis, and Marcum,
however, ITR sued Trek in a United States District Court for
the Southern District of Mississippi. See ITR America,
LLC v. TREK, Inc. and Tu Cao, Case No. 3:16-cv-703. ITR
moves the Court to now transfer Trek's complaint to the
Southern District of Mississippi or to dismiss Trek's
complaint without prejudice.
the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to
any other district or division where it might have been
brought[.]" 28 U.S.C. § 1404(a). "To transfer
an action under section 1404(a) the following criteria must
be met: (1) the action could have been brought in the
transferee district court; (2) a transfer serves the interest
of justice; and (3) transfer is in the convenience of the
witnesses and parties." Kepler v. ITT Sheraton
Corp., 860 F.Supp. 393, 398 (E.D. Mich. 1994). In ruling
on a § 1404(a) motion, the Court should consider
"the private interests of the parties, including their
convenience and the convenience of potential witnesses, as
well as other public-interest concerns, such as systemic
integrity and fairness, which come under the rubric of
interests of justice." Moses v. Bus. Card Exp.,
Inc., 929 F.2d 1131, 1137 (6th Cir. 1991) (quotations
omitted). "Generally, a plaintiff's choice of forum
will be given deference unless the defendant makes an
appropriate showing." Flagstar Bank, FSB v.
Estrella, No. 13-CV-13973, 2013 WL 6631545, at *2 (E.D.
Mich. Dec. 17, 2013).
initial matter, the Court finds that the Eastern District of
Michigan serves as a proper venue because "a substantial
part of the events . . . giving rise to the claim
occurred" in Michigan. 28 U.S.C. § 1391(b). Trek is
a Michigan corporation. Its principal place of business is
Novi, Michigan. Davis is a Michigan citizen and worked for
Trek in Michigan. FAC ¶¶ 4, 19, ECF No. 5. And
Marcum frequently traveled to Michigan while employed by
Trek. Id. ¶ 5. Trek alleges that Davis and
Marcum-induced and assisted by ITR-downloaded and deleted
Trek's confidential, proprietary, trade-secret
information. Id. ¶¶ 26-29, 35-38.
According to Trek, the harm from the Defendants' wrongful
actions occurred in Michigan.
do not challenge venue or personal jurisdiction. Rather,
Defendants argue that under the first-to-file doctrine, the
Court should dismiss Trek's suit without prejudice, or
transfer it to the Southern District of Mississippi. Under
the first-to-file doctrine, a court may transfer venue when
"two cases involving precisely the same issues are
simultaneously pending in different District Courts."
Ferens v. John Deere Co., 494 U.S. 516, 531 (1990)
(quotations omitted). The doctrine exists to prevent the
waste of "time, energy and money" caused by
duplicative litigation. Id.
contend that Trek's case substantially overlaps with
ITR's earlier-filed Mississippi lawsuit, ITR America,
LLC v. TREK, Inc. and Tu Cao. In that suit, ITR claims
that Trek and former ITR employee Tu Cao stole trade secrets.
Compl. ¶ 12, 14, Case No. 3:16-cv-703. As evidence of
the similarity between the suits, ITR points out that Trek
alleged nearly identical causes-of action against ITR in the
later-filed Michigan suit as ITR had alleged in the
earlier-filed Mississippi suit: they both invoked the Defend
Trade Secrets Act, 18 U.S.C. § 1836(b), Computer Fraud
and Abuse Act, 18 U.S.C. § 1030, a state-law trade
secrets act, and a common law interference with business
relations claim. See Mot. 4, ECF No. 12.
argument is unavailing. Despite the facial similarity of the
causes-of-action, the Mississippi and Michigan lawsuits
present substantially different questions of fact. For
instance, the Mississippi suit alleges that-while Cao was
employed by ITR-he downloaded ITR trade secrets from an ITR
laptop. Compl. ¶ 12, Case No. 3:16-cv-703. The Michigan
suit alleges that-while Defendants Davis and Marcum were
employed by Trek-they downloaded Trek's trade secrets
from a Trek computer. FAC ¶¶ 26, 35, ECF No. 5.
Each suit alleges different actions, carried out by different
people, in different locations. As a result, separate
Mississippi and Michigan lawsuits present no risk of
"duplicative litigation and conflicting judgments"
since the cases offer discrete questions of fact.
Steavens v. Elec. Data Sys. Corp., No. 07-14536,
2008 WL 5062847, at *3 (E.D. Mich. Nov. 25, 2008). Moreover,
Defendants have not shown that transfer from ...