Opinion
Civil Action No. 00-2334-KHV
March 27, 2000
MEMORANDUM AND ORDER
Flint Hills Scientific, LLC ("FHS") brings suit against Ruslan L. Davidchack for breach of fiduciary duty, misappropriation of trade secrets, unfair competition, breach of contract and injunctive relief. This matter comes before the Court on Defendant's Motion To Dismiss For Plaintiff's Violation Of Protective Order (Doc. #11) filed November 3, 2000. Defendant argues that this lawsuit should be dismissed because it is based upon information which is subject to a protective order in another suit. Defendant does not cite any case law or provision of the Federal Rules of Civil Procedure which would authorize such a dismissal, and the Court overrules defendant's motion.
Factual Background
FHS is a limited liability company with its principal place of business in Kansas. FHS specializes in real-time advanced signal processing, analysis and control methods. In 1996, FHS hired defendant, a Ukranian citizen, as a consultant. A consulting agreement dated January 7, 2000 governed the relationship between the parties. The parties allegedly agreed that the contract would retroactively cover defendant's work with another FHS employee, Alexei V. Nikitin, from September 22, 1998 to February 9, 2000. On April 3, 2000, defendant and Nikitin allegedly applied for a patent which was based on trade secrets they had learned from their work at FHS. FHS asserts that the patent application violates its consulting agreement with defendant.
FHS has also filed suit in Kansas state court, but solely against Nikitin, a defendant-intervenor in this case. Defendant asks the Court to dismiss the complaint in this case because it is based upon information which FHS obtained during his deposition in the Kansas case. The state court had entered a protective order and counsel for FHS declared on the record, at the start of defendant's deposition, that the order covered defendant's testimony. FHS asserts, however, that defendant's counsel refused to agree that the order covered himself or his client. As it turns out, however, defendant is now trying to claim the protective order did cover his deposition. According to defendant, plaintiff's earlier statements implied that it had no basis to bring suit against him before he gave his protected deposition testimony in that case. Memorandum In Support Of Defendant's Motion To Dismiss For Plaintiff's Violation Of Protective Order (Doc. #13) at 3 (citing Plaintiff's Response To Dr. Alexei V. Nikitin's Motion To Intervene (Doc. #9) filed October 11, 2000). FHS responds that it had grounds to bring suit before the deposition, but that it decided to do so only after learning at the deposition that defendant planned to leave the United States in two days and that he did not intend to honor his consulting agreement. Plaintiff's Response To Defendant's Motion To Dismiss (Doc. #15) at 2-3. Further, FHS claims that it could have learned this information independent of the deposition testimony. Finally, FHS argues that the protective order applied only to the parties in the Kansas action and not defendant in this case. Defendant replies that FHS is now attempting to contradict its earlier assurances that it would not bring suit against him and that FHS has no information other than confidential deposition testimony on which to base this suit.
Analysis
Preliminarily, the Court notes that defendant's motion relies upon matter outside the pleadings. "It is well established that a motion to dismiss for failure to state a claim upon which relief can be granted must be converted into a motion for summary judgment whenever the district court considers matters outside the pleadings." Watson v. City of Kansas City, Kan., 80 F. Supp.2d 1175, 1184 (D.Kan. 1999) (citing Fed.R.Civ.P. 12(b)(6)). Even if the Court were to convert defendant's motion to one for summary judgment, he does not explain why this Court, rather than the Kansas state court, is the proper venue to enforce the protective order. While the protective order does not clearly state which court should bear responsibility for enforcement, Kansas law and the law of this Circuit clearly contemplates that the Kansas court has first-line responsibility in enforcing its order. The well-established rule is that the court that enters a protective order retains the power to modify it. See United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424 (10th Cir. 1990). The correct procedure for a party seeking to challenge, modify, or enforce that order is to intervene in the case in which the order was issued. See id. at 1427. None of defendant's cited cases hold that dismissal is an appropriate remedy for violation of a protective order in another case in another court. See On Command Video Corp. v. Lodgenet Entm't Corp., 976 F. Supp. 917 (N.D.Cal. 1997) (request for enforcement of protective order through civil contempt and sanctions); In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693 (9th Cir. 1993) (motion for civil contempt).
IT IS THEREFORE ORDERED that Defendant's Motion To Dismiss For Plaintiff's Violation Of Protective Order (Doc. #11) filed November 3, 2000 be and hereby is OVERRULED.