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Poblocki Paving Corp. v. Johnson & Sons Paving, LLC

United States District Court, E.D. Wisconsin

April 27, 2016



J.P. Stadtmueller, U.S. District Judge.


On March 8, 2016, the defendants Johnson & Sons Paving, LLC and Jason B. Johnson (collectively, “Johnson”) jointly moved to dismiss the entirety of the plaintiff Poblocki Paving Corporation’s (“Poblocki”) amended complaint. (Motion, Docket #19; Amended Complaint, Docket #13). Johnson filed a brief in support that same day. (Docket #20). Pursuant to Civil Local Rule 7(b) and Federal Rule of Civil Procedure 6(d), Poblocki’s response to the motion to dismiss was due on or before April 1, 2016. On April 21, 2016, Poblocki filed a notice of dismissal for Count Two of the amended complaint, as well as a response. (Notice of Dismissal, Docket #23; Brief in Opposition, Docket #24). Unfortunately, Poblocki did so without requesting leave to file its response out of time or otherwise explaining the lengthy delay.


Johnson has moved to dismiss Poblocki’s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). This rule provides for dismissal of complaints which fail to state a viable claim for relief. Fed.R.Civ.P. 12(b)(6). To state a viable claim, a complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In other words, the complaint must give “fair notice of what the…claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The allegations must “plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level[.]” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (citation omitted).

In reviewing Poblocki’s complaint, the Court is required to “accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff.” Id. at 480-81. However, a complaint that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). The Court must identify allegations “that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679.


Accepting the truth of Poblocki’s well-pleaded allegations and drawing all reasonable inferences in its favor, the relevant facts are as follows. Poblocki advances a two-count amended complaint. (Docket #13). The first is for copyright infringement pursuant to 17 U.S.C. § 502. Id. at 9. The second is for misappropriation of trade secrets in violation of Wisconsin law. Id. at 10-11. Poblocki asks the Court to exercise federal question jurisdiction over the copyright claim, and supplemental jurisdiction over the trade secret claim. Id. at 2-3.

3.1The Database

Poblocki is an asphalt paving contractor which has been in business for forty-seven years. Id. at 4. Starting in 2002, it gathered customer contact and specification information into a “customer relationship management database, ” or CRM database (“Database”). Id. The data gathered included contact information, work orders, marketing and bid information, project specifications, and other material relevant to the customer’s project. Id. The Database was created to give Poblocki employees secure and easy access to the information as needed. Id. Poblocki has never licensed the Database to anyone, including Johnson. Id.

The Database contains the above-described data from over 55, 400 commercial and residential customers. Id. at 5. The data and documents in the Database are entered by employees based on customer interactions. Id. The Database then “selects, coordinates, and arranges the raw data in such a way that the resulting digital data compilation…, as a whole, constitutes an original work of authorship.” Id. The information has been gathered since Poblocki’s inception and could not have been created by any means other than Poblocki’s business operations. Id.

Poblocki derives value from the Database because it contains information not known to its competitors. Id. at 6. The data therein is kept secret by requiring a login and limiting an employee’s access to what is necessary to accomplish their duties. Id. at 6-7. The data and documents are also stored in a manner which makes them difficult to download or save to an external drive. Id. at 7. The Database contains trade secret information, namely the manner in which the CRM software operates to create the final, useable Database. Id. at 6. That trade secret was purposefully created to increase business efficiency and “reasonable” efforts have been made to maintain its secrecy. Id.

Poblocki applied for copyright protection for the Database on December 16, 2015. Id. at 5. Poblocki has not alleged that the copyright has actually been registered. See generally, Docket #13. The Database is Poblocki’s sole property and employees are given no ...

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