Moreau v. U.S. Olympic & Paralympic Comm.

641 F.Supp.3d 1122

Dr. William MOREAU, Plaintiff, v. UNITED STATES OLYMPIC & PARALYMPIC COMMITTEE, Defendant.

Civil Action No. 1:20-cv-00350-CNS-MEH

United States District Court, D. Colorado

Signed November 18, 2022

Darold W. Killmer, Liana Gerstle Orshan, Michael Paul Fairhurst, Thomas B. Kelley, Killmer Lane & Newman LLP, Denver, CO, for Plaintiff.

Amy Christine Knapp, Raymond Myles Deeny, Beth Ann Lennon, Sherman & Howard LLC, Denver, CO, James Stephen Korte, Spencer Fane LLP, Denver, CO, for Defendant.

ORDER

Charlotte N. Sweeney, United States District Judge

Before the Court is Plaintiff Dr. William Moreau's Special Motion to Dismiss Defendant United States Olympic & Paralympic Committee's ("USOPC's") Counterclaims Pursuant to C.R.S. § 13-20-1101 (ECF No. 171), and USOPC's Motion to Dismiss Dr. Moreau's First Amended Complaint (ECF No. 170). For the following reasons, the Court DENIES both motions.

I. BACKGROUND FOR DR. MOREAU'S MOTION TO DISMISS¹

USOPC serves as both the National Olympic Committee and National Paralympic Committee for the United States (ECF No. 66 at 44-45 ¶ 5). Dr. Moreau worked for USOPC from May 2009 through May 2019 (Id. at 45 ¶ 6). From December 2009 through May 2019, Dr. Moreau led USOPC's Sports Medicine Department and was responsible for "building an integrated multi-disciplinary approach to healthcare" for U.S. athletes (Id. at 45 ¶ 7). Dr. Moreau was the Vice President of Sports Medicine from 2019 through May 2019 (Id. at 46 ¶ 9). During his tenure at USOPC, Dr. Moreau had access to "confidential and proprietary" information belonging to USOPC (Id. at 45 ¶ 8). This information concerned USOPC's policies, contractual terms of service for U.S. athletes, information regarding the athletes themselves, "HR and personnel matters," and "legal actions" (Id. at 45-46, 56-57 ¶¶ 8, 72-73).

As a USOPC employee, Dr. Moreau was given a work email account (Id. at 46 ¶ 12). He acknowledged throughout his employment that he was bound by the terms of USOPC's Employee Handbook, its Code of Conduct and its "Confidentiality & No Prohibited Contact Statement" (Id. at 46, 48 ¶¶ 13-14, 25). At the time he was hired, USOPC also provided Dr. Moreau with its "Property Issue/Return Policy," which stated that when his employment ended, he was required to return all USOPC property to USOPC (Id. at 48 ¶ 23). USOPC also implemented a "Document Management Policy" that required employees to maintain any company emails and documents in a policy-approved storage location (See id. at 51 ¶ 44). Dr. Moreau was told several times during his employment that he was prohibited from disclosing confidential information to "unauthorized persons," and that he was bound by this requirement even after his employment with USOPC ended (See, e.g., id. at 66 ¶¶ 52-55).

During his employment, Dr. Moreau sent or forwarded emails from his USOPC email account to an email account associated with his "side business," DCOnline (Id. at 56 ¶ 70). He also printed confidential emails and documents (Id. at 56 ¶ 71). Some of these documents and emails contained alleged USOPC "trade secrets" (See id. at 57 ¶ 73). When Dr. Moreau's employment ended in May 2019, he did not return any of the printed documents or emails forwarded to his DCOnline account, and still has some of these documents in his possession (See id. at 58 ¶¶ 77, 79). Dr. Moreau deleted or destroyed other emails and documents (Id. at 58 ¶ 80).

After taking these emails and documents, Dr. Moreau shared them with "third parties" (Id. at 59 ¶ 86). In February 2020, Dr. Moreau sued USOPC, and included "extensive confidential and proprietary information" belonging to USOPC in his initial complaint (Id. at 59 ¶ 88). Dr. Moreau provided USOPC with his Initial Disclosures in April 2020, at which time USOPC learned Dr. Moreau had taken documents from USOPC (Id. at 59-60 ¶ 89). In May 2020, USOPC received written discovery responses from Dr. Moreau which contained allegedly confidential and proprietary information (Id. at 60 ¶ 90). Dr. Moreau "admitted to taking USOPC property" and "not returning such property upon his termination" in his June 2020 deposition (Id. at 60 ¶ 92). USOPC filed its Counterclaims in September 2020, bringing claims for civil theft, conversion, breach of contract, and violations of the Defend Trade Secrets Act and Colorado Uniform Trade Secrets Act based on Dr. Moreau's alleged taking of USOPC's confidential and proprietary information (See ECF No. 66).

II. ANALYSIS OF DR. MOREAU'S MOTION

Having considered USOPC's Counterclaims, Dr. Moreau's Motion, USOPC's Response, Dr. Moreau's Reply, the briefs' attachments, and relevant legal authority, the Court denies Dr. Moreau's Motion. The Court addresses Dr. Moreau's arguments in turn.

A. Application of Colorado's anti-SLAPP Law in Federal Court

Dr. Moreau argues that C.R.S. § 13-20-1101, Colorado's anti-SLAPP² statute, applies in federal court—and therefore to USOPC's Counterclaims—because its enforcement in federal court guards a "substantive right" that does not run afoul of the Federal Rules Enabling Act, 28 U.S.C. § 2072, or Shady Grove Orthopedic Associates, P.C. v. Allstate Insurance Company, 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) (ECF No. 171 at 12).³ USOPC contends that Colorado's anti-SLAPP law is a "procedural tool" inapplicable in federal court (ECF No. 209 at 2, 10). According to USOPC, the Federal Rules of Civil Procedure are the "sole available methods" for the relief that Dr. Moreau seeks, and that because the anti-SLAPP law is a state rule of procedure, it "conflicts" with them and cannot be applied in federal court (Id. at 3, 13). The Court agrees with Dr. Moreau that Colorado's anti-SLAPP statute is applicable in federal court.

As a threshold matter, the Court notes that few state appellate courts and federal district courts have addressed the scope of Colorado's anti-SLAPP statute. See, e.g., L.S.S. v. S.A.P., 2022 COA 123, ¶ 20, 523 P.3d 1280 (Colo. App. 2022) ("[F]ew cases have applied Colorado's anti-SLAPP statute."); Stevens v. Mulay, No. 19-CV-01675-REB-KLM, 2021 WL 1153059, at *2 n.7 (D. Colo. Mar. 26, 2021) ("Colorado's anti-SLAPP law is relatively new and untested."). Because Colorado's anti-SLAPP statute "tracks California's [anti-SLAPP] statute almost exactly," state and federal courts have turned to California courts' interpretation of California's anti-SLAPP statute in construing and applying Colorado's anti-SLAPP statute. See Stevens, 2021 WL 1153059, at *2 n.7; see also L.S.S., 2022 COA 123, ¶ 20, 523 P.3d 1280 ("[W]e look to California case law for guidance" in "considering a special motion to dismiss" under Colorado's anti-SLAPP law"); cf. Cal. Civ. Proc. Code § 425.16. The Court likewise turns to other courts' construction of § 425.16 in analyzing Colorado's anti-SLAPP law.

Dr. Moreau contends application of Colorado's anti-SLAPP law in federal court is proper under Justice Stevens' concurrence Shady Grove, 559 U.S. 393, 130 S.Ct. 1431 (2010) (See ECF No. 171 at 9-12).⁴ The Court acknowledges that federal appellate courts are split on the applicability of certain states' anti-SLAPP laws in federal court under Shady Grove. See Abbas v. Foreign Pol'y Grp., LLC, 783 F.3d 1328, 1337 (D.C. Cir. 2015) ("A federal court exercising diversity jurisdiction therefore must apply Federal Rules 12 and 56 instead of the D.C. Anti-SLAPP Act's special motion to dismiss provision."); but see Godin v. Schencks, 629 F.3d 79, 86 (1st Cir. 2010) ("[N]either [Rules 12 or 56 were] meant to control the particular issues under" Maine's anti-SLAPP statute). The Tenth Circuit has also concluded that New Mexico's anti-SLAPP statute is a purely "procedural mechanism" inapplicable in federal court. Los Lobos Renewable Power, 885 F.3d at 673.⁵ But—as the parties and Colorado courts acknowledge—cases interpreting California's anti-SLAPP law guide the Court's analysis, as the California anti-SLAPP statute is most similar to Colorado's anti-SLAPP statute (ECF Nos. 171 at 12, 209 at 12). See also L.S.S., 2022 COA 123, ¶ 20, 523 P.3d 1280; Stevens, 2021 WL 1153059, at *2 n.7.

Federal courts in California, including the Ninth Circuit, have determined that California's anti-SLAPP law applies in federal court. See, e.g., Verizon Delaware, Inc. v. Covad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004). The Ninth Circuit had recent occasion to address whether its "long line of precedents holding that California's anti-SLAPP statute applies in federal court" are "irreconcilable" with Shady Grove. CoreCivic, Inc. v. Candide Grp., LLC, 46 F.4th 1136, 1138 (9th Cir. 2022). They are not. See id. at 1143. The Ninth Circuit concluded Shady Grove was "reconcilable" with its own interpretation of California's anti-SLAPP statute in prior cases, including Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 833-34 (9th Cir.), amended, 897 F.3d 1224 (9th Cir. 2018). See id. Shady Grove and California's anti-SLAPP statutes were reconcilable, the Ninth Circuit reasoned, because California's anti-SLAPP statute has been interpreted to eliminate conflicts between standards in the Federal Rules of Civil Procedure and the anti-SLAPP statute. See id. California's anti-SLAPP statute is applicable in federal court because, under the Ninth Circuit's construction of the statute, challenges to the "legal sufficiency" claims "made pursuant to California's anti-SLAPP statute must be analyzed" under Rule 12(b)(6), and "challenges to [the] factual sufficiency" must be analyzed under the "same standard as Rule 56 . . . ." Id.; see also Planned Parenthood, 890 F.3d at 833-34. Therefore, "California's anti-SLAPP statute applied" in federal court. CoreCivic, 46 F.4th at 1143.

The Court finds CoreCivic's reasoning persuasive. Moreover, prior Ninth Circuit cases—on which CoreCivic relied in concluding that Shady Grove and California's anti-SLAPP statute were reconcilable—that have not explicitly applied the Shady Grove...