United States District Court, S.D. West Virginia, Charleston
IVS GROUP, INC., and INDUSTRIAL SILOSOURCE, INC., Plaintiffs/Counterdefendants,
THE ALL AMERICAN SILO COMPANY, LLC, Defendant/Counterclaimants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge
is plaintiffs' motion to voluntarily dismiss their claims
against the defendant without prejudice, filed October 14,
IVS Group, Inc. (“IVS”) and Industrial
Silosource, Inc. (“ISS”) are West Virginia
corporations. Am. Compl., ECF No. 33, at ¶¶ 2-3.
ISS is a division of IVS engaged in the business of cleaning,
inspecting, repairing and retrofitting industrial silos in
various industries for customers throughout the United
States. Id. ¶¶ 3, 9. ISS claims to have
unique systems in place to improve customer relations, train
employees and perform its duties which enable it to be
successful in a particularly competitive market. See
Id. ¶ 11. ISS purports to protect this
“proprietary information and trade secrets” by
requiring employees to sign confidentiality agreements.
Id. ¶ 12.
September 2017, the plaintiffs initiated three separate
lawsuits against defendant All American Silo Company, LLC
(“All American”), an Ohio limited liability
company, and individual defendants who were previously
employed by plaintiffs. The plaintiffs brought actions
against C.J. Piggott and All-American in the Circuit Court of
Wood County, West Virginia on September 14, 2017, against
Melvin Miller and All American in this court on September 21,
2017, and against Diane Wingrove, Lincoln Echard and All
American in this court on September 27, 2017. In each
lawsuit, the plaintiffs asserted claims against the
individual defendants for breach of contract, tortious
interference with business relations, misappropriation and
use of confidential information and trade secrets, and civil
conspiracy. Similarly, against All American, the plaintiffs
asserted claims for tortious interference with contract,
tortious interference with business relations,
misappropriation and use of confidential information and
trade secrets, and civil conspiracy in each of the three
suits. See Pls.' Mem. Supp. Mot. Dismissal
(“Pls.' Mem.”), ECF No. 81, at 2; Def.'s
Resp. Opp'n Pls.' Mot. (“Def.'s
Resp.”), ECF No. 88, at 2.
defendant denied the allegations in the complaints and each
asserted a counterclaim against plaintiffs for bringing
misappropriation of trade secrets claims in bad faith in
violation of the West Virginia Uniform Trade Secrets Act,
W.Va. Code §§ 47-22-1 et seq. Plaintiffs responded
by denying these counterclaims in their answers. Pls.'
Mem., ECF No. 81, at 2; Def.'s Resp., ECF No. 88, at 2-3.
March 16, 2018, plaintiffs and Ms. Piggott agreed, by
stipulation pursuant to Rule 41(a)(1) and (c), to voluntarily
dismiss the claims and counterclaim filed in the state court
case with prejudice; and plaintiffs and All American
stipulated in that same case to the dismissal of the
plaintiffs' claims and the counterclaim without
prejudice. ECF No. 88-4, at 2.
stipulation of the parties, the action against Mr. Miller and
All American were consolidated with the one against Ms.
Wingrove, Mr. Echard and All American into the present action
on March 26, 2018. ECF No. 30. On April 5, 2018, the court,
pursuant to agreement between the parties, granted plaintiffs
leave to amend the complaint to remove the causes of action
against defendants alleging misappropriation and use of
confidential information and trade secrets and to consolidate
the allegations against all defendants into a single
pleading. ECF Nos. 31-32. Defendants Wingrove, Miller and All
American filed answers in response to plaintiffs' amended
complaint and again asserted counterclaims in which they
alleged that the trade secrets claims in the original
complaints were brought in bad faith. ECF Nos. 39-41.
stipulation of voluntary dismissal filed April 18, 2018, the
parties dismissed, without prejudice, plaintiffs' claims
against Mr. Echard and Mr. Echard's counterclaims against
plaintiffs. ECF No. 38. This dismissal was due largely to the
fact that Mr. Echard had ceased working for All American and
returned to work for ISS. Pls.' Reply, ECF No. 91, at 4.
after receiving responses to written discovery, the
plaintiffs sought to pursue claims in arbitration against
Michael Curry, a former owner of ISS and current owner of All
American. See Id. 1, 4. The plaintiffs submitted to
Mr. Curry their notice of intent to arbitrate and statement
of a claim on October 16, 2018. ECF No. 91-5, at 12.
August 10, 2018, the plaintiffs proposed, by an email to
opposing counsel, the voluntary dismissal of claims against
All American without prejudice and against Mr. Miller and Ms.
Wingrove with prejudice. ECF No. 91-6, at 1. Defendant's
counsel responded on August 17, 2018 and refused to agree to
the dismissal of plaintiffs' claims against All American,
unless it was with prejudice. ECF No. 91-8, at 1-3. All
American also made several additional conditions for
voluntary dismissal, including requests for the transfer of
internet domain names from plaintiffs to All American and
that plaintiffs pay All American's attorneys' fees.
Id. The plaintiffs replied by letter dated October
3, 2018, stating that they were unwilling to accommodate All
American's requests. ECF No. 91-10, at 1-2.
October 10, 2018, plaintiffs claim that an email from All
American communicated to them that it would not agree to
voluntary dismissal. See Pls.' Reply, ECF No. 91, at 9;
ECF No. 85-7, at 1. On the same date, the parties filed a
stipulation of voluntary dismissal wherein the
plaintiffs' claims against Mr. Miller and Ms. Wingrove,
and their respective counterclaims against the plaintiffs,
were dismissed with prejudice. ECF No. 77.
only remaining claims are those asserted by the plaintiffs
against All American and All American's counterclaim
against the plaintiffs. All American moved for judgment on
the pleadings on October 11, 2018, a motion to which
plaintiffs have since responded and All American has replied.
The plaintiffs filed the instant motion to voluntarily
dismiss without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(2) on October 14, 2018, to which All American
has responded and plaintiffs have replied.
result of All American allegedly noticing several depositions
without first conferring with plaintiffs' counsel as to
time and place, plaintiffs filed, on October 17, 2018, a
motion for protective order to stay discovery until the court
ruled on the plaintiffs' motion to voluntarily dismiss
without prejudice, filed three days earlier, and/or All
American's motion for judgment on the pleadings.
Pls.' Mem. Supp. Mot. Protective Order, ECF No. 83, at
3-6. All American responded in opposition to the motion to
hearing held before the court on October 22, 2018, the court
issued an order granting plaintiffs' motion for a
protective order insofar as it extended, among other
deadlines, the discovery close date from November 5, 2018
until November 26, 2018, to accommodate plaintiffs'
counsel in the taking of depositions in this matter. ECF No.
to the hearing for protective order, the court permitted
multiple extensions of deadlines. In its January 25, 2019
order provisionally granting the plaintiffs' unopposed
motion to seal certain exhibits they planned to attach to
their motion for summary judgment, the court set a
dispositive motions deadline of January 30, 2019. ECF No.
132, at 1-2.
January 30, 2019, the parties filed cross motions for summary
judgment only on All American's ...