Wright's Well Control Services, LLC v. Oceaneering International, Inc. et al, No. 2:2015cv01720 - Document 56 (E.D. La. 2015)
Court Description: ORDER AND REASONS - the Court GRANTS IN PART and DENIES IN PART defendants' motion 32 to dismiss. Plaintiff's breach of contract claim is DISMISSED with prejudice to the extent that it rests on use of information in the patent applicatio ns or on conduct that occurred after December 11, 2012. Plaintiff's trade secret misappropriation claim under the Texas Uniform Trade Secrets Act is DISMISSED with prejudice. Plaintiff's claim for fraudulent inducement is DISMISSED without prejudice and with leave to amend within twenty-one (21) days of this order. The Court declines to dismiss plaintiff's other claims.. Signed by Judge Sarah S. Vance on 11/16/15.(jjs)
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Wright&#039;s Well Control Services, LLC v. Oceaneering International, Inc. et al Doc. 56 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA WRIGHT'S WELL CONTROL SERVICES, LLC CIVIL ACTION VERSUS NO: 15-1720 OCEANEERING INTERNATIONAL, INC. AND CHRISTOPHER MANCINI SECTION: R ORD ER AN D REASON S Defendants Oceaneering International, Inc. and Christopher Mancini m ove the Court to dism iss plaintiff Wright's Well Control Services, LLC's tort and breach of contract claim s under Rule 12(b)(6). For the following reasons, the Court grants in part and denies in part defendants' m otion. I. FACTS A. W W CS's H yd rate Re m e d iatio n Sys te m This patent infringem ent, breach of contract, and unfair com petition case arises out of a dispute between plaintiff Wright's Well Control Services, LLC ("WWCS") and defendants Oceaneering International, Inc. and Christopher Mancini, an Oceaneering em ployee. The dispute concerns a technological system that WWCS developed for rem oving hydrates from Dockets.Justia.com subsea, deepwater pipelines. According to WWCS's com plaint, a hydrate is an ice-like solid that form s when water becom es m ixed with oil and/ or gas at high pressure and low tem perature.1 Hydrates can cause a pipeline to becom e blocked by "hydrate plugs," resulting in a loss of production.2 WWCS alleges that in 20 0 8, Oceaneering tried and failed to rem ove hydrates from a pipeline for ATP Oil and Gas Corporation.3 ATP then asked WWCS to review Oceaneering's work, prom pting WWCS to spend 18 m onths researching, testing, and developing a new system for preventing and rem oving hydrates in deepwater environm ents.4 According to WWCS, its rem ediation system overcam e m any of the design challenges that plagued earlier system s and provided a faster, safer, and m ore cost-effective way to clear hydrates in deepwater environm ents.5 1 R. Doc. 41 at 3. 2 Id. at 3-4. 3 Id. at 7. 4 Id. at 4-7. 5 Id. at 4-6. 2 B. Th e N o n d is clo s u re Agre e m e n t On Decem ber 11, 20 0 9 WWCS and Oceaneering allegedly executed a Reciprocal Nondisclosure of Confidential and Proprietary Inform ation Agreem ent (the "NDA").6 WWCS alleges that the NDA was intended to allow the parties to share inform ation necessary to com plete the ATP job and future joint hydrate rem ediation projects, while sim ultaneously protecting each com pany's confidential and trade secret inform ation.7 The NDA's introductory section states: "It is the intention of the parties to this Agreem ent to exchange proprietary inform ation. The disclosure and use of any proprietary data shall be governed in accordance with the following . . . ."8 Section One defines the "inform ation" that is covered by the NDA: For the purpose of this Agreem ent, confidential and proprietary inform ation "Inform ation" shall be defined as but not lim ited to, perform ance, sales, financial, contractual, and special m arketing inform ation, ideas, technical data, all intellectual property including inventions, patents, pending patents and all other business, technical and financial inform ation that the Disclosing Party develops, learns or obtains during the period over which it is (or is supposed to be) providing services as contracted for between the parties that relate to Recipient Party or the business or dem onstrably anticipated business of the Recipient Party, or that are received by or for Recipient Party in confidence and 6 See R. Doc. 41-3. 7 R. Doc. 41 at 7. 8 R. Doc 41-3 at 1. 3 concepts originated by the Disclosing Party. Proprietary inform ation is further defined as data not previously available to the Receiving Party or others without restriction, nor norm ally furnished to others without com pensation, and which the Disclosing Party desires to protect against unrestricted disclosure or com petitive use, and which is furnished pursuant to this Agreement and appropriately identified as being proprietary when furnished.9 Two provisions restrict a recipient's use of shared inform ation. Section Two states: "With respect to all proprietary inform ation disclosed hereunder, the Recipient agrees that for a period of three (3) years following the date of this Agreem ent, unless term inated sooner by either party, such party shall not . . . use such inform ation except for purposes of its business relationship with the Disclosing party."10 Section Four provides: "Neither party shall divulge or use any proprietary inform ation disclosed to it hereunder by the other party for any purpose not connected with the effort contem plated by the agreem ent."11 Section Six places lim its on a recipient's duty to "protect and handle" proprietary inform ation with care. It provides, in relevant part: 9 Id. at 1. 10 Id. 11 Id. at 2. 4 The obligation with respect to the protection and handling of proprietary inform ation, as set forth in this Agreem ent, is not applicable to the following: a) Inform ation which is or becom es lawfully known or available to the receiving party without restriction from a source other than the Disclosing Party. b) Inform ation which is or later falls within, the public dom ain without breach of this Agreem ent by the recipient. c) Inform ation disclosed by the Disclosing Party to others on a nonrestrictive basis.12 The NDA also contains a choice of law provision, which states: "This agreem ent is m ade subject to and shall be construed under the laws of the State of Texas (excluding its conflicts-of-laws principles)."13 C. Th e Partie s ' W o rkin g Re latio n s h ip an d Oce an e e rin g's Alle ge d Mis ap p ro p riatio n o f W W CS's Te ch n o lo gy WWCS alleges that after entering the NDA, it disclosed to Oceaneering the requirem ents of a functioning hydrate rem ediation system and provided confidential inform ation on the alignm ent, deploym ent, and operation of system com ponents--inform ation that Oceaneering allegedly did not have and could not have obtained without WWCS.14 12 Id. 13 Id. at 3. 14 Id. 5 According to WWCS, its rem ediation system successfully cleared hydrates from ATP's pipeline.15 WWCS and Oceaneering then worked together on a second project, using WWCS's system to rem ove hydrates from a pipeline for Marubeni Oil and Gas.16 After the Marubeni job, WWCS and Oceaneering allegedly perform ed one m ore joint rem ediation project, this time for Williams Oil and Gas.17 Because WWCS's pum p was tem porarily unavailable when the William s project began, WWCS m odified its subsea separator to connect with Oceaneering's pum ps.18 WWCS dem onstrated to Oceaneering how to m odify com ponents of its system to connect to Oceaneering's skid and shared schem atics and other confidential inform ation.19 After the William s job in 20 11, Oceaneering allegedly refused to perform any additional hydrate rem ediation work with WWCS.20 WWCS alleges that Oceaneering used the inform ation that WWCS disclosed under the NDA to create its own rem ediation system .21 According 15 Id. at 10 . 16 Id. at 11. 17 Id. 18 Id. at 11-12. 19 Id. 20 Id. at 12. 21 Id. at 16. 6 to WWCs, Oceaneering began developing schem atics based on WWCS's inform ation as early as March 1, 20 10 .22 By early 20 12, Oceaneering had created a working system , which it used to bid against WWCS for m ultiple hydrate remediation projects.23 To date, Oceaneering has allegedly bid against WWCS on rem ediation jobs for at least six different oil and gas com panies.24 D. Th e BP Th u n d e r H o rs e Re s trictio n Pro je ct WWCS alleges that it did not discover Oceaneering's duplicity until it lost a hydrate rem ediation project to Oceaneering in J uly 20 13. In 20 12, BP plc and WWCS allegedly began discussing a contract for supplying hydrate rem ediation services, known as the Thunder Horse Restriction Project.25 After a lengthy bidding process, BP notified WWCS that it would not receive the contract on J uly 11, 20 13.26 WWCS later learned that BP had awarded the contract to Oceaneering.27 WWCS alleges that prior to J uly 11, 20 13 it had no way of knowing that Oceaneering was bidding for hydrate rem ediation 22 Id. at 16. 23 Id. at 17. 24 Id. 25 Id. at 14. 26 Id. 27 Id. 7 projects or that it was using WWCS's proprietary inform ation to do so.28 According to WWCS, Oceaneering deployed its rem ediation system on private boats in several thousand feet of water, m aking it im possible for WWCS to im m ediately detect the m isappropriation of its proprietary inform ation.29 E. Th e Pate n t Ap p licatio n s On Decem ber 24, 20 10 , just over a year after entering the NDA with Oceaneering, David Wright and J effery Dufrene Filed two U.S. nonprovisional patent applications, each of which was directed to specific aspects of WWCS's rem ediation system .30 According to WWCS, US. Patent Application No. 12/ 978,486, now issued as U.S. Patent No. 8,413,725, describes and claim s the subsea separator used in WWCS's rem ediation system .31 Application No. 12/ 978,448, which is still pending, describes aspects of the entire rem ediation system , focusing specifically on the system 's use of a subsea hydraulic positive displacem ent pum p.32 The United States Patent 28 Id. at 14-15. 29 Id. at 15. 30 Id. at 13. 31 Id. According to WWCS, Wright and Dufrene have assigned all rights and interest in the '725 Patent to WWCS. 32 Id. 8 and Tradem ark Office published both patent applications on J une 30 , 20 11.33 WWCS alleges that defendant Mancini, an Oceaneering em ployee, used WWCS's patent applications and other inform ation disclosed under the NDA to file m ultiple patent applications listing him self as the inventor of various aspects of WWCS's rem ediation system .34 F. W W CS's Law s u it an d D e fe n d an ts ' Mo tio n to D is m is s WWCS filed this lawsuit on May 21, 20 15, pleading patent infringem ent, breach of contract, and num erous tort claim s against Oceaneering and Mancini.35 WWCS also alleges that both defendants m isappropriated its trade secrets in violation of both the Texas Uniform Trade Secrets Act (TUTSA) and the Louisiana Uniform Trade Secrets Act (LUTSA).36 WWCS alleges that the Court has original, exclusive jurisdiction over its patent infringem ent claim under 28 U.S.C. § 1338(a) 37 and supplem ental jurisdiction over its related state law claims. Defendants jointly moved to dism iss every non-patent claim under 33 See R. Doc. 41-1 at 2 (the '725 Patent, indicating a publication date of J une 30 , 20 11); R. Doc. 41-6 (the '444 Patent Application, indicating the sam e publication date). 34 Id. at 17-20 . 35 R. Doc. 1. 36 Id. at 22-26. 37 Section 1338(a) states, in relevant part: "The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents . . . ." 9 Rule 12(b)(6), arguing that each claim is tim e-barred and raising various other challenges to the sufficiency of WWCS's pleadings.38 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged." Id. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239 (5th Cir.20 0 9). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic 38 R. Doc. 31-1. Defendants' m otion originally sought dism issal of WWCS's original com plaint. WWCS responded by am ending its pleadings, see R. Doc. 41, and filing an opposition to defendants' m otion to dism iss. R. Doc. 52. Defendants then filed a reply to WWCS's opposition, which argues that WWCS's am endm ent to its pleadings failed to rem edy the deficiencies identified in defendants' m otion to dism iss. R. Doc. 54. Accordingly, the Court construes defendants' m otion as seeking dism issal of the first am ended com plaint, which has now superseded the original. 10 recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiff's claim . Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, the claim m ust be dism issed. Tw om bly , 550 U.S. at 555. III. D ISCU SSION A. W W CS's Bre ach o f Co n tract Claim WWCS alleges that Oceaneering breached the NDA by using inform ation disclosed by WWCS without perm ission and for purposes not contem plated by the agreem ent.39 Specifically, WWCS claim s that it shared inform ation about its hydrate rem ediation system in order to facilitate joint rem ediation projects and that Oceaneering used that inform ation to develop its own rem ediation technology.40 Oceaneering gives three argum ents for why WWCS has failed to state a breach of contract claim . After addressing the choice of applicable law, the Court considers each argum ent in turn. 39 R. Doc. 41 at 26. 40 Id. at 7-10 , 12-13. 11 The NDA contains a choice of law provision, which states: "This agreem ent is m ade subject to and shall be construed under the laws of the State of Texas (excluding its conflicts-of-laws principles)."41 Under Louisiana law, which would otherwise apply,42 contractual choice of law provisions are valid unless the chosen law contravenes the public policy of the state whose law would otherwise apply. La. Civ. Code art. 3540 . Here, no party has contested the validity of the NDA's choice of law; nor has anyone argued that enforcing the provision would contravene the public policy of any state. Thus, the provision is enforceable as written, and the Court will apply Texas law to WWCS's breach of contract claim . Under Texas law, "[t]he elem ents of a claim for breach of contract are: (1) the existence of a valid contract; (2) perform ance or tendered perform ance by the plaintiff; (3) breach of the contract by the defendant; and (4) dam ages to the plaintiff resulting from that breach." Hunn v. Dan W ilson Hom es, Inc., 41 R. Doc. 41-3 at 3. 42 Under Fifth Circuit law, "it is well-settled that choice of law issues for supplem ental state law claim s . . . are governed by the forum state in which the federal court is sitting." Janvey v. Brow n, 767 F.3d 430 , 434 (5th Cir. 20 14). Here, WWCS invokes this Court's original jurisdiction over its patent claim under 28 U.S.C. § 1338(a) and supplem ental jurisdiction over its state law breach of contract and tort causes of action. Thus, the Court applies the law of the forum state, Louisiana, to choice of law issues concerning WWCS's breach of contract claim . 12 789 F.3d 573, 579 (5th Cir. 20 15) (quoting Foley v. Daniel, 346 S.W.3d 687, 690 (Tex.App.—El Paso 20 0 9, no pet.)). When interpreting a written contract, "a court m ust ascertain the true intentions of the parties as expressed in the writing itself." Italian Cow boy Partners, Ltd. v. Prudential Ins. Co. of Am ., 341 S.W.3d 323, 333 (Tex. 20 11). The court "m ay consider the facts and circum stances surrounding a contract, including the com m ercial or other setting in which the contract was negotiated and other objectively determ inable factors that give context to the parties transaction." Kachina Pipeline Co., Inc. v. Lillis, No. 13-0 596, 20 15 WL 588910 9, at *3 (Tex. 20 15) (quoting Am erico Life, Inc. v. My er, 440 S.W.3d 18, 22 (Tex. 20 14)). Nonetheless, while a court m ay consider evidence of circum stances to "inform the contract text and render it capable of only one m eaning, extrinsic evidence can be considered only to interpret an am biguous writing, not to create am biguity." Id. "A contract is unam biguous if it can be given a definite or certain legal m eaning. On the other hand, if the contract is subject to two or m ore reasonable interpretations . . . the contract is am biguous, creating a fact issue on the parties' intent." Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 294 (5th Cir. 20 10 ) (quoting J.M. Davidson, Inc. v. W ebster, 128 S.W.3d 223, 229 (Tex. 20 0 3)). 1. The Identification Requirem ent 13 First, Oceaneering argues that its alleged use of WWCS's information did not breach the NDA because Oceaneering did not identify its inform ation as proprietary at the point of disclosure.43 WWCS does not contend that it so identified any of its inform ation; rather, it argues that the NDA does not contain a general identification requirem ent and that all of the inform ation it disclosed to Oceaneering was protected under the agreem ent's term s.44 The NDA's introductory section states that "[t]he disclosure and use of any proprietary data shall be governed in accordance with the following . . . ."45 Section Two provides that "for a period of three (3) years following the date of this agreem ent," the Recipient Party m ay not to use "proprietary inform ation" disclosed under the NDA "except for purpose of its business relationship with the Disclosing Party."46 Sim ilarly, Section Four states: "Neither party shall divulge or use proprietary inform ation disclosed to it hereunder by the other party for any purpose not connected with the effort contem plated in this agreem ent."47 The definition of "proprietary inform ation"--and therefore the 43 R. Doc. 32-1 at 37-38. 44 Com pare R. Doc. 32-1 at 21-23 w ith R. Doc. 52 at 16. 45 R. Doc. 41-3 at 2. 46 Id. 47 Id. at 3. 14 scope of the non-use duty created by the NDA--is set forth in Section One. That provision states: For the purpose of this Agreem ent, confidential and proprietary inform ation "Inform ation" shall be defined as but not lim ited to, perform ance, sales, financial, contractual, and special m arketing inform ation, ideas, technical data, all intellectual property including inventions, patents, pending patents and all other business, technical and financial inform ation that the Disclosing Party develops, learns or obtains during the period over which it is (or is supposed to be) providing services as contracted for between the parties that relate to Recipient Party or the business or dem onstrably anticipated business of the Recipient Party, or that are received by or for Recipient Party in confidence and concepts originated by the Disclosing Party. Proprietary inform ation is further defined as data not previously available to the Receiving Party or others without restriction, nor norm ally furnished to others without com pensation, and which the Disclosing Party desires to protect against unrestricted disclosure or com petitive use, and w hich is furnished pursuant to this Agreem ent and appropriately identified as being proprietary w hen furnished.48 According to Oceaneering, Section One's final clause establishes an identification requirem ent that applies to everything that is disclosed under the NDA. Thus, Oceaneering argues, information not "appropriately identified as being proprietary" does not fall within the NDA and does not trigger the recipient's duty of non-use under the agreem ent. By contrast, WWCS argues that the first and second sentences of Section One have independent 48 Id. at 2. (em phasis added). 15 significance. The first sentence instructs that the NDA encom passes a wide range of inform ation sources, including "ideas, technical data, [and] all intellectual property." Sentence two provides for NDA protection of any other kind of inform ation that the parties share but desire to protect against unrestricted use, provided the inform ation is not previously available to the recipient or others, is not usually furnished without consideration, and is appropriately identified as proprietary. Under this view, only inform ation in the second, "catch-all" category is subject to an identification requirem ent. Item s encom passed by the first category are proprietary regardless of whether they are identified as such to the recipient. According to WWCS, this includes all of the technical data and intellectual property that it disclosed to Oceaneering.49 At bottom , the parties' disagreem ent concerns the nature of the relationship between the two sentences of Section One. The key word in resolving this dispute is "further"--as in, "proprietary inform ation is further defined." Because the word "further" is reasonably susceptible to m ore than one m eaning in this context, Section One is am biguous. For instance, when used as an adverb, "further" can m ean "to a greater extent; m ore." Oxford 49 Com pare R. Doc. 32-1 at 21-23 w ith R. Doc. 52 at 16. 16 English Dictionary Online, www.oed.com (last visited Novem ber 5, 20 15) (defining further); see also Merriam -W ebster Dictionary On lin e, www.m erriam -webster.com (last visited Novem ber 5, 20 15) (defining further as "to a greater degree or extent"); THE RANDOM HOUSE COLLEGE DICTIONARY 536 (1980 ) (defining further as "at or to a m ore advanced point; to a greater extent"). This definition suggests cum ulativeness--an elaboration or continuation of a previously expressed concept or idea. See e.g., Metroplex Corp. v. Thom pson Indus., Inc., 25 F. App'x 80 2, 80 7 (10 th Cir. 20 0 2) (concluding that the use of"further" in the second sentence of a contractual provision "im plies that [the] sentence is a continuation of the previous one"). Here, a cum ulative definition of "further defined" supports defendants' interpretation. If Section One's second sentence is a continuation of what cam e before, then the two sentences together set forth a single definition of "proprietary inform ation" with a single set of attributes and lim itations. In that case, sentence two's identification requirem ent would apply to everything that a disclosing party sought to protect under the NDA. Im portantly, "further" can also m ean "in addition, additionally; m oreover." Oxford English Dictionary Online, www.oed.com (last visited Novem ber 5, 20 15) (defining further); see also Merriam -W ebster Dictionary Online, www.m erriam -webster.com (last visited Novem ber 5, 20 15) (defining 17 further as "in addition"); THE RANDOM HOUSE COLLEGE DICTIONARY 536 (1980 ) (defining further as "in addition; m oreover"). An idea that is "in addition" to som ething else need not have any particular connection to what cam e before. Indeed, when used in this way, "further" can suggest that two ideas are independent or distinct. See e.g., United States v. Yah, 50 0 F.3d 698, 70 4 (8th Cir. 20 0 7) (construing "further" in the second prom ise of a plea agreem ent and "also" in the third prom ise to dem onstrate the independence of the three prom ises). This definition supports WWCS's position because it suggests that Section One's two sentences set forth independent, selfcontained categories of protected inform ation. In other words, the "ideas, technical data, intellectual property" and other item s that fall within sentence one's ambit would receive NDA protection even if not "appropriately identified as proprietary," as required by sentence two. Nothing in the NDA's text or structure conclusively indicates which definition of "further" the parties intended; nor has any party advanced an argum ent as to why their reading is superior that of the other side. The Court therefore finds that Section One is reasonably susceptible to both interpretations offered by the parties. Because the NDA does not unam biguously im pose a general identification requirement, the Court cannot 18 conclude at this stage that WWCS's disclosures fell short of the NDA's procedures for protecting inform ation. 2. The Section 6 Argum ent Oceaneering's second argum ent centers on two non-provisional patent applications filed by David Wright and J effery Dufrene. The first, U.S. Patent Application No. 12/ 978,486, now issued as U.S. Patent No. 8,413,725, describes and claim s the subsea separator used in WWCS's hydrate rem ediation system . The second, U.S. Patent Application No. 12/ 978,448, describes aspects of the hydrate rem ediation system as a whole, including the subsea displacem ent pum p and its use within WWCS's system .50 The United States Patent and Tradem ark Office published both applications on J une 30 , 20 11, eighteen m onths after the parties allegedly executed the NDA. 51 Oceaneering argues that under Section Six of the agreem ent, the publication of these patent applications rem oved any contractual duty it m ay have had to WWCS.52 Section Six states that a recipient's "obligation with respect to the protection and handling of proprietary inform ation" is not applicable to, 50 R. Doc. 41 at 2. 51 See R. Doc. 41-1 at 2 (the '725 Patent, indicating a publication date of J une 30 , 20 11); R. Doc. 41-6 (the '444 Patent Application, indicating the sam e publication date). 52 R. Doc. 32-1 at 23-26. 19 am ong other things, "[i]nform ation which is within or later falls w ithin, the public dom ain without breach of this Agreem ent by the recipient."53 Im portantly, this provision use prospective language. If, at any point, an inform ational item "falls within the public dom ain," the effect is that the item was never protected by the NDA at all. So the recipient is not m erely absolved of an existing contractual duty to protect and keep the item confidential; rather, the recipient never had any such duty in the first place. It is undisputed that "a published patent application, like a patent, is readily available." Tew ari De-Ox Sy s., Inc. v. Mountain States/ Rosen, L.L.C., 637 F.3d 60 4, 612 (5th Cir. 20 11) (noting that "the United States Patent and Tradem ark Office and Google both allow free online searching of published patent applications"). Thus, everything contained in WWCS's published patent applications is now in the public dom ain. Under Section Six's unam biguous term s, Oceaneering does not now, nor has it ever, had any duty "with respect to the protection and the handling" of any such inform ation. To the extent that WWCS bases its breach of contract claim on Oceaneering's use of inform ation that appears in WWCS's patent applications, its claim is without m erit. GP II Energy , Inc. v. Cham berlain, Hrdlicka, W hite, W illiam s & M a r t in , 53 No. 14– 0 7– 0 0 237– CV, R. Doc. 41-3 (em phasis added). 20 20 0 8 WL 43549 31, at *8 (Tex.App.—Houston [14th Dist.] 20 0 8, no pet.) (upholding sum m ary judgm ent on breach of contract claim when unam biguous language of agreem ent "im posed no duty on the Escrow Agent to disclose any knowledge the Escrow Agent m ight have," and therefore party "did not have duty to disclose this inform ation"); Am . N at. Fire Ins. Co. v. Ham m er Trucking, Inc., No. 2-0 4-327-CV, 20 0 6 WL 324790 6, at *3 (Tex. App.--Forth Worth 20 0 6) ("Because Am erican had no duty to indem nify Ham m er, no breach of contract occurred."). That Oceaneering's alleged m isconduct m ay have occurred before the applications becam e publicly available is irrelevant. Nonetheless, Section Six is not entirely dispositive. As WWCS correctly notes, its com plaint alleges that som e of the inform ation that it disclosed under the NDA does not appear in its applications and has not otherwise been made available to the public. Specifically, WWCS alleges that it disclosed--and has kept secret--drawings and schem atics, test results for com ponents of its rem ediation system , and certifications for m aterials used to construct the system .54 Accepting WWCS's factual allegations as true, the Court concludes that WWCS has adequately pleaded a claim for breach of the NDA. While WWCS m ay not pursue a breach of contract claim prem ised on Oceaneering's use of inform ation that is contained in its patent applications, the Court will 54 R. Doc. 41 at 9. 21 not dism iss its claim with respect to inform ation that was not included in either of those (now publicly-available) docum ents. 3. The Expiration Argum ent Third, Oceaneering argues that it cannot have breached the NDA because any duty of non-use im posed by that agreem ent has now expired.55 Oceaneering cites Section Two, which states: With respect to all proprietary inform ation disclosed hereunder, the Recipient Party agrees that for a period of three (3) years following the date of this Agreem ent, unless term inated sooner by either party, such party shall not: a) Use such inform ation except for purposes of its business relationship with the Disclosing Party, or, b) Disclose such inform ation to any third party unless, further disclosure is previously approved in writing by an authorized representative of the Disclosing Party. Authorized proprietary inform ation disclosures to third parties shall be m ade subject to restrictions of use and further disclosures consistent with the restrictions im posed hereby.56 By its plain term s, this provision provides that a recipient's duty to lim it is use of and to avoid disclosing inform ation that it obtains under the NDA expires three years after the NDA's date of execution. 55 R. Doc. 31-1 at 28-29. While defendants specifically raise this argum ent against WWCS's trade secret m isappropriation claim , it is also relevant to WWCS's allegation that Oceaneering breached the parties' NDA. Therefore, the Court will consider it here. 56 R. Doc. 41-3 at 2. 22 Nonetheless, WWCS contends that the non-use obligation extends beyond the NDA's third year. To support this argum ent, WWCS cites Section Four: "Neither party shall divulge or use any proprietary information disclosed to it hereunder by the other party for any purpose not connected with the effort contem plated by the agreem ent."57 WWCS contends that because this provision contains no tim e lim itation, Section Four's m andate rem ains in effect even after Section Two has expired.58 Sections Two and Four both refer to the sam e contractual duty--the duty to abstain from using inform ation disclosed under the NDA except for purposes of the parties' businesses relationship. Thus, the Court can see no way to harm onize Section Two's m andate that the usage lim itation expires after three years with the Section Four language containing no tim e lim itation. The Court therefore applies the well-settled rule of construction that "a specific contractual provision prevails over a general provision." In re Davis Offshore, L.P., 644 F.3d 259, 266 (5th Cir. 20 11); see also Barnard Const. Co. v. City of Lubbock, 457 F.3d 425, 429 (5th Cir. 20 0 6) (noting that the rule that "general term s . . . will be overcom e and controlled by specific language dealing with the sam e subject" can resolve apparent am biguities that appear on the surface 57 Id. at 3. 58 R. Doc. 52 at 19. 23 of a contract). Because Section Two is the m ore detailed and specific of the two provisions, it prevails to the extent that it conflicts with Section Four. WWCS alleges that the parties executed the NDA on Decem ber 11, 20 0 9.59 Under Section Two, the NDA's usage restrictions expired three years later, leaving the parties free to use inform ation that they had received under the NDA for any purpose--including purposes not related to the parties' business relationship. Thus, actions by Oceaneering that occurred after Decem ber 11, 20 12 cannot form the basis of a breach of contract claim . See AMS Constr. Co. v. K.H.K. Scaffolding Houston, Inc., 357 S.W.3d 30 , 41 (Tex.App.—Houston [1st Dist.] 20 11, pet. dism 'd) ("A breach occurs when a party fails or refuses to do som ething he has prom ised to do."). Nonetheless, Oceaneering is not entitled to a com plete dism issal of WWCS's cause of action. WWCS alleges that Oceaneering began using shared inform ation to build its own hydrate rem ediation system shortly after the NDA was executed in 20 0 9. Specifically, it claim s that "Oceaneering was potentially developing drawings based on WWCS's inform ation as early as March 1, 20 10 ," well before Section Two's expiration date.60 At the tim e this alleged m isconduct began, Oceaneering was duty-bound to abstain from using NDA-protected 59 R. Doc. 41 at 7. 60 Id. at 16. 24 inform ation "except for purposes of its business relationship" with WWCS.61 WWCS has adequately pleaded its claim for breach of that then-existing contractual duty. In sum , WWCS has sufficiently pleaded a claim for breach of contract under Texas law. While WWCS has no contractual cause of action with respect to (1) inform ation that is contained in its published patent applications or (2) actions by Oceaneering that postdate Decem ber 11, 20 12, it m ay proceed with its claim to the extent it does not fall into these categories. B. W W CS's Trad e Se cre t Mis ap p ro p riatio n Claim U n d e r TU TSA In addition to its breach of contract claim , WWCS alleges that Oceaneering and Mancini m isappropriated its trade secrets in violation of the Texas Uniform Trade Secret Act (TUTSA). TUTSA perm its a claim ant to recover dam ages for actual loss caused by the m isappropriation of a trade secret. See Tex. Civ. Prac. & Rem . Code Ann. § 134A.0 0 4. The statute defines "trade secret" as: [I]nform ation, including a form ula, pattern, com pilation, program, device, m ethod, technique, process, financial data, or list of actual or potential custom ers or suppliers that: (a) derives independent econom ic value, actual or potential, from not being generally known to, and not being readily ascertainable 61 R. Doc. 41-3 at 2. 25 by proper m eans by, other persons who can obtain econom ic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circum stances to m aintain its secrecy. Tex. Civ. Prac. & Rem . Code Ann. § 134A.0 0 2(6). TUTSA's definition of "m isappropriation" includes, am ong other things, the disclosure or use of a trade secret of another, without express or im plied consent, by a person who, at the tim e of disclosure, knew or should have known that knowledge of the trade secret was acquired under circum stances giving rise to a duty to m aintain its secrecy or lim it its use. Tex. Civ. Prac. & Rem . Code Ann. § 134A.0 0 2(3)(B). Im portantly, however, TUTSA's provisions govern only "the m isappropriation of a trade secret m ade on or after" the statute's effective date, Septem ber 1, 20 13. 20 13 Tex. Sess. Law Serv. Ch. 10 , § 1 (S.B. 953) (West). Acts of m isappropriation that occurred before that date are governed "by the law in effect im m ediately before" TUTSA cam e into effect. Id. WWCS claim s that various item s that it disclosed under the NDA are "trade secrets" within the m eaning of TUTSA, including (1) schem atics, or drawings, of the system and separator, (2) all necessary testing for each com pon ent of the system , (3) m aterial certifications for the m aterials used to construct the system , (4) all necessary drawings to show how the system connects to the wellhead or pipeline, as well as how each com ponent m ust be 26 connected and arranged, and (5) all engineering relating to the separator, pum p, and pad eyes used for lifting the system safely.62 WWCS claim s to have disclosed these trade secrets in reliance on the parties' confidential relationship. And it alleges that defendants' use of WWCS's trade secret inform ation to build their own hydrate rem ediation system exceeded the scope of perm issible use under the NDA and therefore constituted m isappropriation. Citing NDA Section Two, defendants argue that because their duties under the NDA expired on Decem ber 11, 20 12, nine m onths before TUTSA becam e law, WWCS's TUTSA claim s m ust fail. WWCS responds by arguing that the non-use duty im posed by the NDA has not actually expired--an argum ent that the Court has already rejected.63 Under TUTSA, "m isappropriation" m eans, am ong other things, the use of another's trade secret, without perm ission, by a person who knew that the secret was "acquired under circum stances giving rise to a duty to m aintain its secrecy or lim it its use." Tex. Civ. Prac. & Rem . Code Ann. § 134A.0 0 2(3)(B). To prevail under this provision, WWCS m ust identify som e duty that defendants breached by using WWCS's secrets. Because TUTSA does not 62 R. Doc. 41 at 9. 63 Com pare R. Doc. 32-1 at 28-29 w ith R. Doc. 52 at 19. 27 govern actions that predate its effective date, the breach also m ust have occurred--and, hence, the duty m ust have existed--on or after Septem ber 1, 20 13. See Sisoian v. Int'l Bus. Machines Corp., No. A-14-CA-565-SS, 20 14 WL 4161577, at *2 n.4 (W.D. Tex. Aug. 18, 20 14) (concluding that "because the m isappropriation in this case occurred years before Septem ber 20 13, TUTSA is not available as a m echanism for [plaintiff]"). Because the NDA's non-use provision expired on Decem ber 11, 20 12,64 the NDA cannot serve as the basis for a TUTSA violation. Other than the NDA, WWCS has not plausibly alleged the existence of any confidential relationship that m ight im pose on defendants a non-use duty--m uch less one that existed as of Septem ber 1, 20 13. Thus, WWCS has failed to adequately plead that defendants com m itted "m isappropriation" under the m eaning of TUTSA at a tim e when the law was in effect. WWCS's TUTSA claim is dism issed. C. W W CS's Trad e Se cre t Mis ap p ro p riatio n Claim U n d e r LU TSA WWCS also pleads a claim for trade secret m isappropriation against Oceaneering and Mancini under the Louisiana Uniform Trade Secrets Act (LUTSA). Like its Texas counterpart, LUTSA permits a com plainant to recover dam ages for actual loss caused by the m isappropriation of a trade secret. See 64 Section III.A.3 supra. 28 La. Rev. Stat. § 51:1431. Indeed, the operative provisions of the two Uniform Trade Secrets Act enactm ents are virtually identical. Com pare La. Rev. Stat. 51:1431(2) w ith Tex. Civ. Prac. & Rem . Code Ann. § 134A.0 0 2(3). Defendants m ake two argum ents for dism issal of WWCS's LUTSA claim . The Court addresses each in turn. 1. The Choice of Law Argum ent First, defendants contend that Texas law alone governs WWCS's trade secret claim s because those claim s arise out of the NDA, which includes a provision selecting Texas law. Defendants argue that WWCS's attem pt to invoke LUTSA, a Louisiana statute, m ust therefore fail. WWCS contends that the NDA's choice of law provision applies only to contract claim s and does not apply to claim s that sound in tort.65 As noted, the NDA's choice of law provision provides: "This agreem ent is m ade subject to and shall be construed under the laws of the State of Texas (excluding its conflicts-of-laws principles)."66 The Court has already concluded that this provision is enforceable as written under Louisiana law.67 65 Com pare R. Doc. 41-3 at 4 w ith R. Doc. 52 at 21. 66 R. Doc. 41-3 at 3. 67 Section III.A supra. 29 The harder question is whether the NDA's choice of law encom passes any of WWCS's claim s that sound in tort, rather than in contract. This question raises its own choice of law issues. As the Second Circuit Court of Appeals has noted, "determ ining which jurisdiction's law governs the scope of a valid choice-of-law clause is not a sim ple m atter." Fin. One Pub. Co. v. Lehm an Bros. Special Fin., 414 F.3d 325, 332 (2d Cir. 20 0 5). Som e jurisdictions have concluded that the scope of a choice of law provision is a m atter of contract interpretation subject to the law chosen by that provision. Id. at 333; see also W eil v. Morgan Stanley DW Inc., 877 A.2d 10 24, 10 32 (Del. Ch.) aff'd, 894 A.2d 40 7 (Del. 20 0 5) (concluding that, as "a m atter of hornbook law," the scope of a choice of law provision is determ ined under the law that the provision selects). Other courts determ ine the provision's scope under the sam e law that governs its enforcability, the law of the forum state. Fin. One, 414 F.3d at 332 (collecting cases); see also Schw an's Sales Enterprises, Inc. v. SIG Pack, Inc., 476 F.3d 594, 597 (8th Cir. 20 0 7) (concluding that interpreting a choice-of-law clause's scope under the chosen law rather than the forum law would "give effect to that provision before the court's analytical determ ination of what effect it should have"). The Court need not enter this conflict. Under Fifth Circuit law, when "there are no differences between the relevant substantive laws of the 30 respective states, there is no conflict, and a court need not undertake a choice of law analysis." R.R. Mgm t. Co. v. CFS Louisiana Midstream Co., 428 F.3d 214, 222 (5th Cir. 20 0 5). Upon reviewing the applicable law, the Court concludes that regardless of whether Texas or Louisiana law applies to the scope determ ination, the NDA's choice of law provision does not extend to WWCS's claim for trade secret m isappropriation under LUTSA or any of the other extracontractual claim s pleaded in the com plaint. Texas law distinguishes between choice of law provisions that refer only to the interpretation of a contract and those that refer m ore broadly to all disputes between the contracting parties. See Stier v. Reading & Bates Corp., 992 S.W.2d 423, 433 (Tex. 1999). Narrow provisions encom pass only contract actions, see e.g., id. (concluding that an em ploym ent agreement's choice of law clause did not encom pass tort claim s for personal injury incurred during em ploym ent); Red Roof Inns, Inc. v. Murat Holdings, L.L.C., 223 S.W.3d 676, 684 (Tex. App.--Dallas 20 0 7, pet. denied) (holding that a franchise agreem ent stating that it "will be interpreted, construed, and enforced" under Ohio law did not encom pass various tort claim s), while broader ones m ay govern extracontractual tort claim s as well. El Pollo Loco, S.A. de C.V. v. El Pollo Loco, Inc., 344 F. Supp. 2d 986, 989 (S.D. Tex. 20 0 4) (concluding that clause referencing "[a]ll disputes which m ay arise in connection with the 31 perform ance of this Agreem ent" encom passed trade secret m isappropriation, fraud, and other tort claim s). Louisiana law draws a sim ilar distinction. Choice of law provisions that refer narrowly to the contract govern only m atters of contract interpretation and enforcem ent. See e.g. Gulf Coast Bank & Trust Co. v. Statesm an Bus. Advisors, LLC, 20 12 WL 5199717, at *1 (E.D. La. Oct. 22, 20 12) (holding that choice of law clause stating that "this Agreem ent shall be governed by the laws of the State of Texas" did not govern claim s arising in tort); Dorsey v. N . Life Ins. Co., 20 0 5 WL 20 36738, at *6 (E.D. La. Aug. 15, 20 0 5) ("Because the choice of law provision applies only to '[t]his Agreem ent,' the clause does not encom pass plaintiffs' tort and statutory claim s. . . ."); Foshee v. Torch Operating Co., 763 So. 2d 82, 89 (La. App. 3 Cir. 20 0 0 ) (holding that a choice of law clause referring to how the agreem ent should be "governed and construed" did not require application of Louisiana law to tort im m unity issue). Provisions that use broader language m ay govern extracontractual tort claim s as well. See Mobil Exploration & Producing U.S. Inc. v. Certain Underw riters Subscribing to Cover N ote 95-3317(A), 837 So. 2d 11, 42 (La. Ct. App. 1 Cir. 20 0 2) (holding that provision that applied to "the work to be perform ed" encom passed fraudulent conduct claim s). 32 Here, the choice of law provision refers narrowly to "the agreem ent" and provides that it is "subject to" and "construed under" Texas law.68 This language is narrow because it refers to how to interpret the contract itself; it does not purport to encom pass all disputes between the parties. Thus, Texas and Louisiana law both dictate that the NDA's choice of law does not apply to WWCS's tort claim s against Oceaneering and/ or Mancini. Defendants' first argum ent for dism issal therefore fails. Because the NDA does not require the application of Texas law to WWCS's extracontractual claim s, WWCS is not barred from pursuing a claim for m isappropriation of trade secrets under LUTSA. 2. The Prescription Argum ent Second, defendants argue that WWCS's Louisiana trade secret m isappropriation claim m ust be dism issed as untim ely. LUTSA's prescription period provides: "An action for misappropriation must be brought within three years after the m isappropriation is discovered or by the exercise of reasonable diligence should have been discovered." La. Rev. Stat. 51:1436. It further provides that a continuing m isappropriation constitutes a single claim . Id. WWCS alleges that defendants violated LUTSA by using proprietary inform ation that they received in confidence under the NDA to design and 68 R. Doc. 41-3 at 3. 33 construct their own hydrate rem ediation system . WWCS further alleges that before J uly 20 13, when BP awarded a hydrate rem ediation contract to Oceaneering, it did not know that Oceaneering was bidding against it for hydrate rem ediation work. It also alleges that it was unaware of the precise m ethods and techniques that Oceaneering was using to bid for and com plete hydrate rem ediation projects. According to WWCS's com plaint, because "the rem ediation system is utilized on Oceaneering's private boats and in several thousand feet deep in the sea [sic.] . . . there is virtually no way to discover the m ethods and techniques actually being used by Oceaneering until Oceanering decides to release that inform ation."69 Based on these allegations, the Court finds that WWCS has plausibly pleaded that it could not reasonably have discovered defendants' m isappropriation earlier than J uly 20 13. WWCS filed this lawsuit on May 21, 20 15, which is less than two years after the alleged discovery date and well within LUTSA's three-year prescriptive period. Defendants resist this conclusion by arguing that Oceaneering's bids for hydrate rem ediation contracts were not private and that its rem ediation work was widely known within the industry.70 But these argum ents draw on facts not alleged in WWCS's com plaint, and the Court will not them here. See Hall 69 R. Doc. 41 at 14-15. 70 R. Doc. 32-1 at 16. 34 v. Hodgkins, 30 5 F. App'x 224, 227 (5th Cir. 20 0 8) (noting that "[i]n ruling on a Rule 12(b)(6) m otion to dism iss, the district court cannot look beyond the pleadings . . . and m ust accept[] as true those well-pleaded factual allegations in the com plaint"). Because defendants have not shown that a prescriptive bar exists on the face of the pleadings, they are not entitled to dism issal of WWCS's LUTSA claim on the grounds of untim eliness. D. W W CS' Claim fo r Frau d u le n t In d u ce m e n t WWCS pleads a claim for fraudulent inducem ent, which Oceaneering m oves the Court to dism iss on the grounds that WWCS has failed to satisfy the heightened pleading requirem ents of Federal Rule of Civil Procedure 9(b).71 Rule 9(b) provides: "In alleging fraud or m istake, a party m ust state with particularity the circum stances constituting fraud or m istake." Fed. R. Civ. P. 9(b). The am ount of particularity required for pleading fraud necessarily "differ[s] with the facts of each case." Benchm ark Electronics, Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir.) opinion m odified on denial of reh'g, 355 F.3d 356 (5th Cir. 20 0 3); W illiam s v. W MX Techs., Inc., 112 F.3d 175, 178 (5th Cir.1997) (noting that “Rule 9(b)'s ultim ate m eaning is context-specific"). Nonetheless, the Rule 9(b) standard requires "specificity as to the statem ents (or om issions) considered to be fraudulent, the speaker, when and why the 71 R. Doc. 32-1 at 41-42. 35 statem ents were m ade, and an explanation why they are fraudulent." Plotkin v. IP Axess Inc., 40 7 F.3d 690 , 696 (5th Cir. 20 0 5). In short, the com plaint m ust provide "the essentials of the first paragraph of any newspaper story, nam ely the who, what, when, where, and how." Melder v. Morris, 27 F.3d 10 97, 110 0 n.5 (5th Cir. 1994). WWCS alleges that "in the NDA, and in related negotiations," Oceaneering represented that it would keep WWCS's proprietary inform ation confidential. WWCS further alleges that these representations were both m aterial--because WWCS would not have shared proprietary inform ation without Oceaneering's assurances--and false. According to WWCS, "Oceaneering's acts indicate that not only did it not keep the inform ation confidential, but that it never intended to keep the inform ation confidential."72 In sum , WWCS bases its fraudulent inducem ent claim on two categories of fraudulent conduct--Oceaneering's statem ents during negotiations "related [to]" the NDA and Oceaneering's execution of the NDA with the intent not to honor its provisions. Neither allegation satisfies Rule 9(b). The allegation concerning contractual negotiations fails because it does not attribute a specific fraudulent statem ent or om ission to any particular speaker; nor does it detail the tim e, place, or m anner in which the alleged 72 R. Doc. 41 at 12, 16, 20 , 28-29. 36 fraud took place. While WWCS does vaguely refer to a negotiation period, it does not specify who was involved in the negotiations, what was said, or when and where the key discussions took place. Such an allegation is insufficient to satisfy the heightened pleading requirem ents of Rule 9(b). See Kelly Law Firm , P.C. v. An Attorney for You, 679 F. Supp. 2d 755, 773 (S.D. Tex. 20 0 9) (dism issing fraudulent inducem ent claim under Rule 9(b) when plaintiff's fraud allegation referred generally to a presentation but failed to specify who delivered the presentation to plaintiffs, which specific statem ents were fraudulent, and when, where, and how the offending statem ents were m ade); see also United States ex rel. Richardson– Eagle, Inc. v. Marsh & McLennan Cos., 20 0 5 WL 35910 14, at *7 n.18 (S.D. Tex. 20 0 5) (dism issing fraud in the inducem ent claim under Rule 9(b) when com plaint failed to allege who was involved in contract negotiations, where or when the negotiations took place, or what was said before, during, or after the negotiations); Patel v. Holiday Hosp. Franchising, Inc., 172 F.Supp.2d 821, 824 (N.D. Tex. 20 0 1) (fraud allegations insufficient for failing to identify particular person m aking representations, when they were m ade, where and by what m eans they were m ade, whether they were oral or written, exact content of representations, or why they were fraudulent). 37 WWCS's allegation that Oceaneering entered the NDA with fraudulent intent is also insufficient. As a general rule, "there is no inference of fraudulent intent not to perform from the m ere fact that a prom ise m ade is subsequently not perform ed." U.S. ex rel. W illard v. Hum ana Health Plan of Texas Inc., 336 F.3d 375, 386 (5th Cir. 20 0 3) (citing United States v. Shah, 44 F.3d 285, 293 (5th Cir. 1995)); see also Fluorine On Call, Ltd. v. Fluorogas Ltd., 380 F.3d 849, 858-59 (5th Cir. 20 0 4) ("Failure to perform a contract . . . is not evidence of fraud."). Fraud m ay be inferred when "substantial nonperform ance is coupled with other probative factors, such as where only a short tim e elapses between the m aking of the prom ise and the refusal to perform it, and there is no change in the circum stances. . . ." Id. But the burden is on the plaintiff to "set forth specific facts that support" the inference. Am . Realty Trust, Inc. v. Ham ilton Lane Advisors, Inc., 115 F. App'x 662, 667 (5th Cir. 20 0 4) (quoting Tuchm an v. DSC Com m unications Corp., 14 F.3d 10 61, 10 68 (5th Cir.1994)). Here, the facts alleged by WWCS do not support an inference that Oceaneering entered the NDA with fraudulent intent. Although WWCS claim s that Oceaneering com m itted num erous breaches of the NDA, it provides little inform ation on when the m isconduct actually occurred. The com plaint's only specific allegation in this regard is that "Oceaneering was potentially 38 developing drawings based on WWC's inform ation as early as March 1, 20 10 ." But March 20 10 was three m onths after the parties executed the NDA. Further, the use of the word "potentially" is tantam ount to alleging that this conduct was possible with no specific facts to suggest that the use was actually occurring at this tim e. Moreover, other facts in WWCS's com plaint indicate that various factors changed between the tim e when Oceaneering entered the NDA and its alleged m isuse of proprietary inform ation. For instance, in early 20 10 , WWCS successfully dem onstrated its technological innovations by clearing hydrates from a pipeline for ATP Oil and Gas.73 Following the ATP job, Oceaneering and WWCS expanded their business relationship by beginning work on a second rem ediation project for Marubeni Oil and Gas.74 Given these intervening events, WWCS's allegations do not support an inference that Oceaneering entered the NDA with the intent not to perform . Because WWCS has failed to allege fraud with particularity, as required by Rule 9(b), its fraudulent inducem ent claim is dism issed. E. W W CS's Re m ain in g To rt Claim s 73 Id. at 10 . Although WWCS does not specifically allege the date on which the parties cleared ATP's hydrate blockage, it does attach an to its com plaint an exhibit, entitled "ATP Presentation," which indicates that the subsea separator for the project was installed on J anuary 6, 20 10 . R. Doc. 41-4 at 14. 74 Id. at 11. 39 In addition to its breach of contract claim and its statutory claim s under TUTSA and LUTSA, WWCS pleads num erous tort claim s against Oceaneering and/ or Mancini, including m isappropriation, trade secret m isappropriation, breach of a confidential relationship, tortious interference with prospective business relations, business disparagem ent, and unfair com petition.75 Defendants raise m ultiple argum ents for dism issal as to each tort claim . Before the Court can evaluate the m erits of these argum ents, however, it m ust determ ine which state's law applies. As noted, the NDA contains a choice of law provision. But while that provision dictates that Texas law applies to WWCS's breach of contract claim,76 it does not govern claim s that sound in tort.77 Because the NDA is not dispositive, the Court m ust apply the choice of law m ethodology contained in Louisiana's Civil Code. Article 3542 provides that the substantive law to be applied should be "the law of the state whose policies would be m ost seriously im paired if its law were not applied to that issue." La. Civ. Code art. 3542. To m ake this determ ination, courts consider "the pertinent contacts of each state to the parties and the events giving rise to the dispute, including the place of 75 Id. at 22-31. 76 Section III.A supra. 77 Section III.C.1 supra. 40 conduct and injury, the dom icile, habitual residence, or place of business of the parties, and the state in which the relationship, if any, between the parties was centered," as well as "the policies of deterring wrongful conduct and of repairing the consequences of injurious acts." Id. In addition, courts consider "the policies referred to in Article 3515," id., which include "the policies and needs of the interstate and international system s . . . ." La. Civ. Code art. 3515. Although the choice of law determ ination is critical to their m otion to dism iss, defendants have failed to dem onstrate which law applies or to establish a factual foundation upon which the Court can rely to apply the relevant choice of law factors. The Court therefore denies defendants' m otion to dism iss WWCS's rem aining claim s that arise in tort. IV. LEAVE TO AMEN D Federal Rule of Civil Procedure 15(a)(2) instructs that the Court should "freely give" leave to am end "when justice so requires." Fed.R.Civ.P. 15(a)(2); Leal v. McHugh, 731 F.3d 40 5, 417 (5th Cir. 20 13). As the Suprem e Court holds, "[i]f the underlying facts or circum stances relied upon by a plaintiff m ay be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the m erits." Fom an v. Davis, 371 U.S. 178, 182 (1962). Therefore, the Court grants WWCS's leave to am end its com plaint with respect to its 41 fraudulent inducem ent claim within twenty-one (21) days of the entry of this order. The other dism issals are with prejudice because am endm ents would be futile. U.S. ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 271 (5th Cir. 20 10 ) (holding that denial of leave to am end m ay be appropriate when am endm ent would be futile). V. CON CLU SION For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART defendants' m otion to dism iss. Plaintiff's breach of contract claim is DISMISSED with prejudice to the extent that it rests on use of inform ation in the patent applications or on conduct that occurred after Decem ber 11, 20 12. Plaintiff's trade secret m isappropriation claim under the Texas Uniform Trade Secrets Act is DISMISSED with prejudice. Plaintiff's claim for fraudulent inducem ent is DISMISSED without prejudice and with leave to am end within twenty-one (21) days of this order. The Court declines to dism iss plaintiff's other claim s. 16th New Orleans, Louisiana, this _ _ _ day of Novem ber, 20 15. ________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 42
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