Aquate II LLC v. Myers

100 F.4th 1316

AQUATE II LLC, Plaintiff-Appellant, v. Jessica Tedrick MYERS, Kituwah Services LLC, Defendants-Appellees,Kituwah Global Government Group LLC, Defendant.

No. 22-12669

United States Court of Appeals, Eleventh Circuit

Filed: May 1, 2024

Appeal from the United States District Court for the Northern District of Alabama, D.C. Docket No. 5:22-cv-00360-AKK

Richard Scott Williams, Frederick D. Clarke, III, Rumberger Kirk & Caldwell, PC, Birmingham, AL, for Plaintiff-Appellant.

Walter Brad English, Emily J. Chancey, Maynard Nexsen, PC, Huntsville, AL, Skip Durocher, Ben Kappelman, Dorsey & Whitney, LLP, Minneapolis, MN, for Defendants-Appellees.

Before Grant, Abudu, and Hull, Circuit Judges.

Grant, Circuit Judge:

This case first looks like a run-of-the-mill business dispute—but closer inspection reveals thorny questions of tribal sovereignty and contract interpretation. During the competitive bidding process for a government contract, one tribally owned business and its employee allegedly stole trade secrets from a competitor, another tribally owned business. The aggrieved business now seeks to vindicate its interests in federal court, while the alleged aggressor attempts to shield itself with tribal sovereign immunity. Meanwhile, the employee who allegedly stole the secrets says her employment contract mandates that the claims against her can be brought only in a designated tribal court. And that contention raises yet another area of dispute—whether the tribal court even exists.

We conclude that, because it waived sovereign immunity for claims related to the federal contracting program, the defendant tribe can be sued here. As for the former employee, the district court failed to consider whether the clause naming the allegedly nonexistent tribal court as the appropriate forum was valid and enforceable. For both reasons, we reverse the district court's order dismissing the case and remand for further consideration.

I.

The Small Business Administration's 8(a) Business Development Program is designed to assist certain "disadvantaged business concerns" compete in the American economy. 13 C.F.R. § 124.1; see generally 15 U.S.C. § 637(a). To that end, the federal government sets aside select federal contracts for businesses owned and controlled by individuals and groups the Small Business Act declares socially and economically disadvantaged. 15 U.S.C. § 637(a)(1), (4)-(6). Among those eligible are small businesses owned by certain Indian tribes. Id. § 637(a)(4)(A)(i)(II), (ii)(II).

Both businesses here qualify. AQuate II, LLC, is organized under the authority of the Alabama-Quassarte Tribal Town with its principal place of business in Huntsville, Alabama. Kituwah Services, LLC, is organized under the Eastern Band of Cherokee Indians with its principal place of business in Cherokee, North Carolina. Both tribal entities compete for and perform federal contracts under the 8(a) program.

In 2012, AQuate won an 8(a) contract to provide armed security services aboard the Sea-Based X-Band Radar-1 (SBX-1), a semi-submersible platform vessel that operates as part of the ballistic missile defense program. AQuate performed those services for the length of the five-year contract term and won the contract again in 2017 for another five-year term.

Jessica Myers worked for AQuate from 2013 through 2017 during the initial SBX-1 contract and bid preparation for the second. As a condition of her employment, Myers signed several documents governing the use and disclosure of confidential information, as well as the standard dispute resolution policy for all Alabama-Quassarte Tribal Town-owned businesses. That policy contained a clause designating a tribal court as the forum for any employment disputes:

The tribal court of the Alabama-Quassarte Tribal Town shall be the exclusive venue for litigation arising out of Employee's employment. If there is no tribal court in existence, then the CFR Court for the geographic region where Employee works shall be the exclusive venue for litigation arising out of Employee's employment.

Myers resigned in 2017 and took a job as the Director of Administration for Kituwah. According to AQuate, she also took copies of contracts, proposals, personnel lists, and other security information with her—a violation of her confidentiality commitments.

AQuate intended to seek another five-year contract renewal for SBX-1 in 2022, but this time so did Kituwah. To help her new employer construct a winning bid, Myers allegedly contacted her former colleagues at AQuate to solicit information about the company's pricing and compensation structure under the previous SBX-1 contracts. Kituwah and Myers allegedly intended to use the purported trade secret information and documents Myers took to compete in the SBX-1 bidding process. And beyond that, Kituwah and Myers (allegedly) approached AQuate employees with job offers—contingent, of course, on Kituwah winning the SBX-1 contract.

AQuate sued, alleging that Myers breached her employment agreements and that she and Kituwah violated both the Defend Trade Secrets Act of 2016 and the Alabama Trade Secrets Act. 18 U.S.C. § 1836; Ala. Code § 8-27-1 et seq. AQuate requested a preliminary injunction, and Kituwah and Myers moved to dismiss.

The district court granted the motion to dismiss. First, the court found that Kituwah had not waived sovereign immunity for the trade secrets claims because AQuate's lawsuit did not "relate to" participation in the 8(a) program. Because it had granted immunity to Kituwah on those claims, the district court dismissed the same claims against Myers, finding that Kituwah was a necessary and indispensable party under Rule 19. See Fed. R. Civ. P. 19. As for the remaining breach of contract claim against Myers, the court dismissed for forum non conveniens, concluding that the dispute resolution policy required the claim to be resolved in the Alabama-Quassarte Tribal Town court. The district court decided that question without an evidentiary hearing, relying on the parties' assertions in their motions briefing.

AQuate moved for reconsideration. It focused mainly on the forum question, arguing that the district court erred by ignoring evidence that the Alabama-Quassarte Tribal Town court did not exist. The court denied that motion, and this appeal followed.

II.

This Court reviews de novo a district court's grant of a motion to dismiss based on sovereign immunity. Motta ex rel. A.M. v. United States, 717 F.3d 840, 843 (11th Cir. 2013). The district court's dismissal for forum non conveniens is reviewed for abuse of discretion and should be affirmed "unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard." GDG Acquisitions, LLC v. Gov't of Belize, 749 F.3d 1024, 1028 (11th Cir. 2014) (GDG Acquisitions I) (quotation omitted). We review de novo the enforceability of a forum selection clause. Turner v. Costa Crociere, 9 F.4th 1341, 1345 (11th Cir. 2021).

III.

As a separate sovereign, "an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). The burden is on AQuate, as the party seeking federal jurisdiction, to show that Kituwah "expressly and unmistakably waived its right to sovereign immunity from suit." Furry v. Miccosukee Tribe of Indians of Florida, 685 F.3d 1224, 1234 (11th Cir. 2012) (quotation omitted).

The 8(a) program, at least as a general matter, requires such a waiver from participating tribes. So, to take part, a tribally owned business must adopt an express sovereign immunity waiver—also known as a "sue and be sued" clause—designating the United States federal courts as "courts of competent jurisdiction for all matters relating to SBA's programs including, but not limited to, 8(a) BD [Business Development] program participation, loans, and contract performance." 13 C.F.R. § 124.109(c)(1). Kituwah's articles of organization include the required language:

The United States Federal Courts are hereby designated as being among the courts of competent jurisdiction for all disputes or other matters relating to this Company's involvement in programs of the Small Business Administration, including but not limited to, 8(a) Business Development program participation, loans, and contract performance. Simply stated, the Company hereby specifically consents to "sue or be sued" within the jurisdiction of the Federal Court System of the United States.

The question here is whether AQuate's lawsuit against Kituwah—for allegedly stealing trade secrets about AQuate's 8(a) SBX-1 contract to improve its own bid for that same contract—is a "matter relating to" Kituwah's involvement in the 8(a) program.¹ It is, so Kituwah's sovereign immunity waiver applies.

No binding, or even persuasive, authority has established the scope of 8(a) sovereign immunity waivers.² So we will start from the beginning, with the plain meaning of the phrase "relating to." The Oxford English Dictionary defines "relate to" as "[t]o have some connection with; to stand in relation to." Relate, Oxford English Dictionary (online ed.) https://perma.cc/FM2V-S4ZW. And Black's Law Dictionary defines "related" as "[c]onnected in some way; having relationship to or with something else." Related, Black's Law Dictionary (11th ed. 2019). It is no secret that the ordinary meaning of this term is "a broad one." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). That is true across a range of contexts. In fact, "Congress characteristically employs the phrase to reach any subject that has a connection with, or reference to, the topics [a] statute enumerates." Coventry Health Care of Missouri, Inc. v. Nevils, 581 U.S. 87, 95-96, 137 S.Ct. 1190, 197 L.Ed.2d 572 (2017) (quotation omitted). It is hard, candidly, to think of a more capacious term...