Wright's Well Control Services, LLC v. Oceaneering International, Inc. et al, No. 2:2015cv01720 - Document 258 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting in part and denying in part 172 Motion for Partial Summary Judgment; granting 182 Motion for Partial Summary Judgment. WWCS's claims for business disparagement, common law misappropriation, unfair competition, breach of confidential relationship, Texas common law misappropriation of trade secrets, and Louisiana misappropriation of trade secrets are DISMISSED. Signed by Judge Sarah S. Vance on 8/23/2017. (cg)
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Wright&#039;s Well Control Services, LLC v. Oceaneering International, Inc. et al Doc. 258 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA WRIGHT’S WELL CONTROL SERVICES, LLC VERSUS CIVIL ACTION NO. 15-1720 OCEANEERING INTERNATIONAL, INC. SECTION “R” (3) ORD ER AN D REASON S Before the Court are defendant Oceaneering International, Inc.’s two m otions for partial sum m ary judgment on plaintiff Wright’s Well Control Services, LLC’s various Texas and Louisiana law claim s. 1 For the following reasons, the Court grants Oceaneering’s first m otion in part, 2 and grants its second motion. 3 I. BACKGROU N D The facts and allegations that follow are lim ited to what is relevant to the two m otions before the Court. 4 Plaintiff Wright’s Well Control Services, 1 R. Docs. 172, 182. R. Doc. 172. 3 R. Doc. 182. 4 A m ore in-depth discussion of the facts underlying this dispute can be found in the Court’s Novem ber 16, 20 15 Order. See generally R. Doc. 56. A m ore extensive discussion of the deep-sea technology and associated 2 Dockets.Justia.com LLC (“WWCS”) and Defendant Oceaneering International, Inc. (“Oceaneering”) both provide hydrate remediation services for the oil and gas industry. 5 The dispute concerns a technological system that WWCS developed for rem oving hydrates from subsea, deepwater pipelines. 6 WWCS alleges that by the end of 20 0 9 it developed a “hydrate remediation system ” that provided a faster, safer, and m ore cost-effective way to clear hydrates in deepwater environm ents. 7 It further alleges that Oceaneering and WWCS worked together on at least two hydrate remediation projects in 20 0 9 and 20 10 , the ATP job and the Marubeni J ob. 8 WWCS contends that, while working together on these jobs, Oceaneering stole WWCS trade secrets related to its hydrate rem ediation system to develop Oceaneering’s own hydrate rem ediation system , the “Flowline Remediation System ” (“FRS”). Oceaneering asserts that at som e point between 20 0 9 and 20 11, Oceaneering independently built its FRS without patents at issue can be found in the Court’s February 13, 20 17 Order. See generally R. Doc. 141. 5 WWCS also sued Christopher Mancini, an Oceaneering em ployee. On April 10 , 20 17, the Court granted WWCS’s m otion to voluntarily dism iss its claim s against Mancini with prejudice. R. Doc. 170 . 6 According to WWCS, a hydrate is an ice-like solid that form s when water becomes m ixed with oil and/ or gas at high pressure and low tem perature. R. Doc. 147 at 3. “Hydrate plugs” can cause a pipeline to becom e blocked, resulting in a loss of production. Id. at 3-4. 7 Id. at 4-6. 8 R. Doc. 182-2 at 3-9. 2 trade secrets from WWCS, and started to use its FRS in com petition with WWCS’s system. 9 On May 21, 20 15, WWCS filed its initial com plaint against Oceaneering, pleading patent infringem ent as well as various claim s under Texas and Louisiana state law. 10 On Novem ber 16, 20 15, the Court dism issed WWCS’s breach of contract claim with prejudice to the extent it that rested on inform ation in WWCS’s patent applications or on conduct that occurred after December 11, 20 12, and dism issed plaintiff’s statutory trade secret m isappropriation claim under the Texas Uniform Trade Secrets Act. 11 After plaintiff filed a second and third am ended com plaint, Oceaneering m oved to dism iss plaintiff’s federal patent infringem ent claim s. On February 13, 20 17, the Court granted Oceaneering’s m otion and dism issed WWCS’s patent claim s, but without prejudice and with leave to amend. 12 On February 27, 20 17, WWCS filed its fourth amended com plaint, which is the operative com plaint. 13 infringement claim s, as well as The com plaint asserts patent claim s for Texas comm on law m isappropriation, Texas com m on law m isappropriation of trade secrets, 9 10 11 12 13 R. Doc. 182-1 at 6. R. Doc. 1. R. Doc. 56 at 42. R. Doc. 141 at 21. R. Doc. 147. 3 Louisiana statutory m isappropriation of trade secrets under the Louisiana Uniform Trade Secrets Act (“LUTSA”), and Texas com mon law breach of contract, breach of confidential relationship, tortious interference with prospective business relations, fraudulent inducem ent, business disparagem ent, and unfair com petition. 14 Oceaneering now m oves for partial sum m ary judgment on certain of these claim s. More specifically, Oceaneering argues in its first m otion for sum m ary judgment that WWCS’s Texas law business disparagement, unfair com petition, comm on law m isappropriation, breach of confidential relationship, and tortious interference with prospective business relations claim s are barred by the applicable statutes of lim itations. 15 Its second m otion argues that WWCS’s Texas com m on law m isappropriation of trade secrets and Louisiana statutory m isappropriation of trade secrets claim s are also tim e-barred. 16 WWCS filed responses in opposition, 17 and Oceaneering replied. 18 14 15 16 17 18 Id. at 36-46 ¶¶ 89-139. R. Doc. 172. This motion was filed on April 17, 20 17. R. Doc. 182. This m otion was filed on April 20 , 20 17. R. Docs. 195, 196. R. Docs. 20 3, 20 5. 4 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went 5 uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). 6 III. D ISCU SSION In its m otions for partial sum m ary judgm ent, Oceaneering asserts that WWCS’s claim s are barred by the applicable statutes of lim itations. Oceaneering relies prim arily on the J anuary and February 20 17 deposition testim ony of David Wright, WWCS’s sole owner and designated corporate representative under Federal Rule of Civil Procedure 30 (b)(6), 19 as well as copies of em ails that it attached to its m otions. WWCS disputes when each claim accrued, i.e., when the lim itations period actually began, and asserts that the “Texas discovery rule” delayed the accrual of the challenged claims so that they were all filed within the applicable lim itations period. 20 Accordingly, whether Oceaneering is entitled sum m ary judgm ent on each claim depends on the lim itations period and the accrual date. The Court will first address WWCS’s claim for business disparagement, because it is the only claim unrelated to the allegations of m isappropriation of inform ation. A. Te xas Law Bu s in e s s D is p arage m e n t At Wright’s J anuary deposition, he testified that Christopher Mancini, an Oceaneering em ployee, m ade disparaging statem ents about WWCS. 21 More specifically, Wright testified that Mancini called WWCS “an unsafe 19 20 21 R. Doc. 182-13 at 4. R. Doc. 195 at 7-8; R. Doc. 196 at 8, 12. R. Doc. 172-2 at 2. 7 com pany to work for—or work with” because its equipment had failed. 22 Wright testified that he learned of Mancini’s statem ent in 20 11 or 20 12, and that he learned of it because other people told Wright what Mancini said. 23 It is not clear from the record when Mancini actually m ade the allegedly disparaging statement. Wright further testified that Mancini was the only person Wright “heard” say WWCS was unsafe, and that he could not remember any other disparaging statem ent m ade by anyone else with Oceaneering. 24 WWCS alleges that Oceaneering’s disparagement caused WWCS to suffer “econom ic loss.”25 Under Texas law, business disparagem ent has a two-year lim itations period if the injury alleged is direct pecuniary loss rather than personal loss in reputation. See Sting Soccer Operations Grp. LP v. JP Morgan Chase Bank, N .A., No. 15-127, 20 16 WL 3917640 , at *11 (E.D. Tex. J uly 20 , 20 16) (citations omitted); Dw y er v. Sabine Min. Co., 890 S.W.2d 140 , 142 (Tex. App. 1994) (citing Tex. Civ. Prac. & Rem. Code § 16.0 0 3). The Court need not address whether WWCS’s business disparagem ent claim accrued when Mancini m ade the allegedly disparaging 22 23 24 25 Id. at 2-3. Id. at 4. Id. at 6-7. R. Doc. 147 at 44 ¶ 131. 8 statement or when WWCS becam e aware of it later on, because under either date the claim is tim e-barred. Wright testified that he becam e aware of the disparaging statement in either 20 11 or 20 12. Even assum ing that Wright becam e aware on December 31, 20 12, the lim itations period would expire on December 31, 20 14. As WWCS did not file its initial com plaint until May of 20 15, WWCS’s business disparagement claim is tim e-barred. See Sefton v. Pathos, No. 0 0 -314, 20 0 2 WL 356518, at *7 (N.D. Tex. Feb. 28, 20 0 2) (granting sum m ary judgm ent on business disparagement claim because claim was tim e-barred); Dickson Constr. Inc. v. Fid. & Deposit Co. of Md., 960 S.W.2d 845, 850 (Tex. App. 1997) (“Dickson discovered F & D’s sole disparaging com ment in J anuary 1993 alm ost im m ediately after it was m ade, m ore than two years before it filed suit and past the expiration of the twoyear lim itations period.”). WWCS’s argum ents to the contrary are meritless and do not create an issue of fact as to whether the business disparagement claim based on Mancini’s com ments is tim e-barred. First, WWCS argues that the discovery rule applies and delays the start of the lim itation period. But the discovery rule does not extend the lim itations period when the plaintiff has actual knowledge of the defendant’s alleged wrongdoing. 26 See, e.g., Exxon Corp. 26 The Court will explain the discovery rule below. 9 v. Em erald Oil & Gas Co., L.C., 348 S.W.3d 194, 20 3 (Tex. 20 11) (court did not need to address im pact of discovery rule on lim itations period because plaintiffs had actual knowledge of alleged wrongful actions m ore than two years before they filed); see also Pickaree v. Eli Lily Pharm . Co., No. 14-3481, 20 15 WL 180 0 481, at *2-3 (S.D. Tex. Apr. 16, 20 15) (discovery rule did not apply to extend lim itations period when plaintiff had actual knowledge of her claim ). Second, WWCS asserts that Oceaneering’s “evidence does not prohibit finding other instances of disparagem ent that occurred” after 20 12, and points out that Oceaneering has worked on “m any projects” within the twoyear statute of lim itations. 27 But evidence of Oceaneering’s work on a project is not evidence of disparagem ent. That Oceaneering worked on a project, without m ore, does not create a genuine issue of m aterial fact as to another claim for business disparagement or as to whether WWCS’s business disparagem ent claim based on Mancini’s statem ent is tim e-barred. Accordingly, Oceaneering is entitled sum m ary judgm ent on WWCS’s claim that Oceaneering disparaged WWCS by calling it an unsafe com pany. 28 27 R. Doc. 195 at 11-12. WWCS’s response in opposition m entions unspecified Oceaneering internal m em os that are not in the record, as well as a February 20 13 em ail chain between Oceaneering em ployees, as evidence of other disparaging statements. In the email chain, one em ployee asks another, 10 28 B. To rtio u s In te rfe re n ce Re latio n s w ith Pro s p e ctive Bu s in e s s Under Texas law, tortious interference with prospective business relations has a two-year lim itations period. First N at’l Bank of Eagle Pass v. Levine, 721 S.W.2d 287, 288-89 (Tex. 1986). The claim accrues when “existing negotiations, which are reasonably certain of resulting in a contract, are interfered with such that the negotiations term inate and harm to the plaintiff results.” Hill v. Heritage Res., 964 S.W.2d 89, 116 (Tex. App. 1997). WWCS’s com plaint alleges that Oceaneering interfered with the relationship between BP and WWCS regarding the Thunder Horse project. Oceaneering m akes no argument and subm its no evidence on when this interference occurred, but WWCS subm its the J uly 11, 20 13 BP Letter of Regret inform ing WWCS that it did not win the Thunder Horse project. 29 As it is undisputed that the negotiations with BP term inated in J uly 20 13, WWCS tim ely filed its “[a]re you referring to Han’s phone call to som eone at DTS requesting that DTS reciprocate for our telling BP that we would only use DTS FRS on our vessel for the upcom ing Thunderhorse [sic] Hydrate Rem ediation job when they requested Wright Well Hydrate Pum ps?” [ SEALED R. D o c. 19 5-14 at 3 .] This is not evidence of business disparagem ent, which requires false or disparaging inform ation, because it is not apparent how the statement is false or disparaging. See Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 20 0 3). 29 R. Doc. 195-1 at 2. 11 tortious interference with business relations claim in May 20 15, and Oceaneering is not entitled sum m ary judgm ent on this claim . C. Th e Te xas Mis ap pro p riatio n -Re late d Claim s , D is co ve ry Ru le , an d W righ t’s Kn o w le d ge th e Oceaneering also seeks sum mary judgment on the Texas law m isappropriation-related claim s: comm on law m isappropriation, comm on law m isappropriation of trade secrets, breach of confidential relationship, and unfair com petition. According to WWCS’s complaint, the underlying basis for all of these claim s is the theft or m isappropriation of WWCS’s trade secrets and information related to WWCS’s hydrate remediation system. 30 Each claim has either a two-year or three-year lim itations period. See R. Ready Prods., Inc. v. Cantrell, 85 F. Supp. 2d 672, 693 (S.D. Tex. 20 0 0 ) (“Claim s of unfair com petition through m isappropriation of trade secrets . . . are subject to a two year statute of lim itations); Reaux Med. Indus., LLC v. Stry ker Corp., No. 0 9-1582, 20 12 WL 612534, at *2 (N.D. Tex. Feb. 27, 20 12) 30 R. Doc. 147 at 38-46, ¶¶ 99-139. The allegations under WWCS’s unfair com petition claim clearly im plicate m isappropriation of trade secrets. See R. Doc. 147 at 45 ¶ 136 (“But for Defendants’ theft and m isappropriation of Plaintiff’s confidential and trade secret inform ation, Defendants would not be able to com pete with Plaintiff in the deep-water hydrate remediation m arket.”). WWCS’s breach of confidential relationship claim is sim ilarly based on Oceaneering’s alleged theft of WWCS’s trade secrets. See id. at 42 ¶¶ 118-19 (“As a result of this confidential relationship, Plaintiff provided inform ation about Plaintiff’s hydrate rem ediation system . . . . Oceaneering has taken Plaintiff’s trade secrets and confidential inform ation.”). 12 (“Under Texas law, com m on law m isappropriation has a two-year statute of lim itations, while m isappropriation of trade secrets is subject to a three-year period.”); Crutcher-Rolfs-Cum m ings, Inc. v. Ballard, 540 S.W.2d 380 , 387 (Tex. App. 1976) (recognizing two-year lim itations period for breach of confidential relationship claim s). 31 Although these claim s have different lim itations periods, each claim accrues either when the m isappropriation occurred or when the m isappropriated secret is used. See R. Ready Productions, 85 F. Supp. 2d at 693 (“An unfair com petition claim for m isappropriation of trade secrets accrues and the lim itations period com m ences when the trade secret allegedly m isappropriated is actually used.”); Stry ker Corp., 20 12 WL 612534, at *2 (“[A] claim for com m on law m isappropriation begins to accrue when the alleged misappropriation occurred.”); Crutcher-Rolfs-Cum m ings, 540 S.W.2d at 387 (finding breach of confidential relationship claim accrued 31 WWCS is incorrect in asserting that the statute of lim itations for breach of confidential relationship is four years. R. Doc. 195 at 16. The case WWCS relies on, Versata Softw are Inc. v. Internet Brands, Inc., did not address the lim itations period for a breach of confidential relationship claim , but rather the lim itations period for a breach of contract claim where the contract at issue was a confidentiality agreement. No. 0 8-313, 20 12 WL 588790 , at *5 (E.D. Tex. Feb. 22, 20 12) (applying breach of contract lim itations period to “counterclaim for breach of the 1997 Confidentiality Agreement”). And while a breach of contract m ay also give rise to a breach of confidential relationship, they are separate claim s. See Hy de Corp. v. Huffines, 314 S.W.2d 764, 769-70 (Tex. 1958). 13 at tim e breach first occurred); Com put. Assocs. Int’l., Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996) (“A cause of action for m isappropriation of trade secrets accrues when the trade secret is actually used.”). “Use” of a trade secret means “comm ercial use, by which a person seeks to profit from the use of the secret.” Gen. Universal Sy s., Inc. v. HAL, Inc., 50 0 F.3d 444, 450 (5th Cir. 20 0 7). This includes “m arketing goods that embody the trade secret, em ploying the trade secret in m anufacturing or production, relying on the trade secret to assist or accelerate research or development, or soliciting custom ers through the use of inform ation that is a trade secret.” Id. at 451 (quoting Restatem ent (Third) of Unfair Com petition §40 ). Accordingly, the lim itations period began for each of the above claims either when Oceaneering allegedly m isappropriated WWCS’s trade secrets or when Oceaneering used the m isappropriated trade secrets by producing its FRS. WWCS argues that the Texas discovery rule applies to each of the above claim s and delays the start of each applicable lim itations period. The discovery rule “operates to defer accrual of a cause of action until the plaintiff knows or, by exercising reasonable diligence, should have known of the facts giving rise to the claim .” W agner & Brow n, Ltd. v. Horw ood, 58 S.W.3d 732, 734 (Tex. 20 0 1). But the rule is “a very lim ited exception to statutes of lim itations,” and should be used “only when the nature of plaintiff’s injury is 14 both inherently undiscoverable and objectively verifiable.” Id. An injury is inherently undiscoverable if it is, “by its nature, unlikely to be discovered within the prescribed lim itations period despite due diligence.” Id. at 73435 (citing S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996). Whether someone, by exercising reasonable diligence, should have known of the facts giving rise to his or her claim is generally a question of fact for the jury. See, e.g., Sw . Energy Prod. Co. v. Berry -Helfand, 491 S.W.3d 699, 722 (Tex. 20 16). But sum m ary judgment is appropriate if there is no genuine issue of m aterial fact as to “when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury.” Vanderpool v. Vanderpool, 442 S.W.3d 756, 761 (Tex. App. 20 14); see also Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998). Oceaneering disputes the discovery rule’s application to WWCS’s claim s. Because Texas courts apply the discovery rule to trade-secret m isappropriation claim s, and because all of the above claims arise out of the alleged m isappropriation, the Court will apply the rule to these claims. See, e.g., Berry -Helfand, 491 S.W.3d 699, 722 (“Because the discovery rule applies to trade-secret m isappropriation claim s, however, the lim itations period did not begin to run until [plaintiff] knew or should have known of facts that in the exercise of reasonable diligence would have led to discovery 15 of the m isappropriation.” (citations omitted)); Sisoian v. Int’l Bus. Machines Corp., 20 14 WL 4161577, at *4-5 (W.D. Tex. Aug. 18, 20 14) (applying discovery rule to other claim s arising out of theft of trade secrets). Accordingly, the Court will exam ine when WWCS either knew or should have known the facts giving rise to its claim s. Oceaneering argues that WWCS either knew or should have known of its claim s by J anuary 20 12. 32 In J anuary of 20 12, Wright had a m eeting with Shell em ployees. Shortly after the m eeting, Wright em ailed his wife (also a WWCS employee) “Oceaneering stole som e info from us on hydrates. We m ay have to lower our rates to com pete with them .”33 When asked about the em ail at his deposition, Wright testified that he believed Shell em ployee J im McAllister (previously an em ployee of Oceaneering) told him that Oceaneering had a deepsea skid that had a subsea separator. 34 Wright testified that this conversation prompted him to send the em ail to his wife. 35 Wright further testified that when he m entioned possibly lowering WWCS’s rates to com pete, he m eant that WWCS m ay have to lower its rate for hydrate remediation because he now believed that Oceaneering had a remediation 32 33 34 35 R. Doc. 172-1 at 15-17; R. Doc. 182-1 at 10 -14. R. Doc. 172-3 at 2. R. Doc. 172-4 at 8. Id. at 10 . 16 system that possessed subsea separation. 36 He also testified that before he spoke to McAllister, he believed WWCS “didn’t have any com petitors” for hydrate remediation. 37 The J anuary email and Wright’s deposition testim ony related to that em ail establish that Wright should have known of facts giving rise to WWCS’s claim s by the end of J anuary 20 12. As the Texas Supreme Court has recognized, once a plaintiff has been put on notice of the “alleged harm or injury-causing actions, the claim ant m ust exercise reasonable diligence to investigate the suspected harm and file suit, if at all, w ithin the lim itations period.” Em erald Oil & Gas, 348 S.W.3d at 20 7 (citations om itted). This knowledge “initiates the accrual of the cause of action . . . , even if the claim ant does not know the specific cause of the injury or the full extent of it.” Id. at 20 9; see also Gonzales v. Sw . Olshan Found. Repair Co., LLC, 40 0 S.W.3d 52, 58 (Tex. 20 13). The evidence in the record reveals Wright’s knowledge that Oceaneering had som e form of subsea separation technology and was com peting against WWCS by J anuary 20 12. Based on this knowledge, Wright believed that Oceaneering stole “som e info on hydrates” from WWCS. 36 37 Wright’s knowledge of Oceaneering’s subsea separation Id. at 8-10 . Id. at 9. 17 technology and his belief that Oceaneering stole this technology from WWCS are “facts that in the exercise of reasonable diligence would lead to the discovery” that Oceaneering m isappropriated WWCS’s inform ation. Berry Helfand, 491 S.W.3d at 724. WWCS’s argum ents to the contrary do not alter the conclusion that WWCS was put on notice of the alleged m isappropriation by J anuary 20 12. 38 First, WWCS attem pts to weaken the evidentiary value of the em ails and Wright’s deposition testim ony by arguing—without citation to legal authority or caselaw—that the emails and Wright’s deposition testim ony contain inadm issible hearsay. 39 This argum ent is m eritless. Wright’s statements in the em ails are not hearsay because they are offered against WWCS, and Wright was both WWCS’s agent and employee. See Fed. R. Evid. 80 1(d)(2)(D) (statem ent offered against opposing party and m ade by party’s agent or em ployee on m atter within scope of that relationship is not hearsay). Wright’s testim ony regarding what the Shell em ployee told him is not hearsay because it is not offered for the truth of the m atter asserted. See id. 80 1(c)(2) (hearsay rule only applies to statements offered “to prove the truth 38 WWCS also suggests that some of its claim s are continuing torts, but m akes no argum ent and cites no caselaw explaining which, if any, actually are continuing. 39 See R. Doc. 196 at 2, 5. 18 of the m atter asserted”). Instead, Oceaneering relies on this testim ony to establish Wright’s knowledge of Oceaneering’s subsea separator technology. See Mercato Elisio, LLC v. Deveney , No. 15-563, 20 16 WL 41810 21, at *4 (E.D. La. Aug. 8, 20 16) (citing United States v. Obregon-Rey es, 50 7 F. App’x 413, 424 (5th Cir. 20 13) (“A statem ent that D m ade a statem ent to X is not subject to attack as hearsay when its purpose is to establish the state of m ind thereby induced in X, such as . . . having knowledge.”)). Accordingly, the em ail and Wright’s deposition testim ony are both adm issible. Relatedly, WWCS argues that Wright’s deposition testim ony should be discounted because it was “prem ature” given the status of discovery. 40 WWCS instead subm its Wright’s May 2, 20 17 Declaration in an attem pt to cast doubt on Wright’s deposition testim ony. 41 Wright attests in the declaration that he did not have “actual knowledge of the potential legal issues arising from Oceaneering’s theft of m y trade secrets and technology” until WWCS lost the BP Thunder Horse project to Oceaneering in J uly of 20 13. 42 WWCS cannot use Wright’s declaration to erase his earlier deposition testim ony. Under Fifth Circuit law, “in situations where the non-movant in 40 41 42 R. Doc. 195 at 6; R. Doc. 196 at 4. R. Doc. 195-3; R. Doc. 196-1. R. Doc. 195-3 at 2-3; R. Doc. 196-1 at 2-3. 19 a m otion for sum m ary judgment subm its an affidavit which directly contradicts an earlier deposition and the m ovant has relied upon and based its m otion on the prior deposition, courts m ay disregard the later affidavit.” Hy de v. Stanley Tools, 10 7 F. Supp. 2d 992, 993 (E.D. La. 20 0 0 ) (citing S.W .S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996)). And while a contradictory or inconsistent affidavit can “be adm itted if it is accom panied by a reasonable explanation,” id., WWCS’s attempted explanation does not hold water. Even assum ing Oceaneering had yet to turn over discoverable inform ation by the dates of Wright’s depositions, the inform ation sought from Wright and relied on by Oceaneering was based on Wright’s personal knowledge and pertained to what he knew and believed in the past. None of the inform ation sought by WWCS in discovery would im pact what Wright knew and believed in 20 12. Nor does WWCS argue that Wright was confused or m ade a m istake during his deposition. Cf. KennettMurray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980 ). Accordingly, to the extent that inform ation in Wright’s declaration contradicts or is inconsistent with his deposition testim ony, the Court will disregard the declaration. As explained above, Texas comm on law m isappropriation, unfair com petition through m isappropriation of trade secrets, and breach of 20 confidential relationship claim s all have two-year lim itations periods. Texas com m on law m isappropriation of trade secrets has a three year statute of lim itations from the date the m isappropriation is discovered or by the exercise of reasonable diligence should have been discovered. See Tex. Civ. Prac. & Rem . Code § 16.0 10 (a). All of these claim s accrued by J anuary 20 12, yet WWCS filed suit m ore than three years later, in May 20 15. Accordingly, WWCS’s comm on law m isappropriation, unfair com petition, breach of confidential relationship, and com mon law m isappropriation of trade secrets claim s are tim e-barred. Oceaneering is entitled sum mary judgm ent on these claim s. D. Lo u is ian a Statu to ry Mis ap p ro priatio n o f Trad e Se cre ts Claim This leaves WWCS’s Louisiana Uniform Trade Secrets Act claim . Under LUTSA, an “action for m isappropriation m ust be bought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered.” La. Stat. Ann. § 51:1436. Because this claim has a three-year lim itations period, Oceaneering is entitled sum m ary judgm ent on this claim for the same reason it is entitled sum m ary judgment on WWCS’s Texas m isappropriation-related claim s. 21 IV. CON CLU SION For the foregoing reasons, Oceaneering’s first m otion for sum m ary judgm ent is GRANTED IN PART and DENIED IN PART, and Oceaneering’s second m otion is GRANTED. WWCS’s claim s for business disparagement, com m on law m isappropriation, unfair com petition, breach of confidential relationship, Texas com m on law m isappropriation of trade secrets, and Louisiana m isappropriation of trade secrets are DISMISSED. 23rd New Orleans, Louisiana, this _ _ _ _ _ day of August, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 22
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