Adcor Industries v. Bevcorp, LLC , 252 F. App'x 55 ( 2007 )


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  •                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 07a0752n.06
    Filed: October 23, 2007
    No. 06-4260
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    ADCOR INDUSTRIES, INC.,                         )
    )
    Plaintiff-Appellant,                     )
    )
    v.                                              )   ON APPEAL FROM THE UNITED
    )   STATES DISTRICT COURT FOR THE
    B E V C O R P , L LC ; M IC H A E L K .         )   NORTHERN DISTRICT OF OHIO
    CONNELLY; VICTORIA L. CONNELLY;                 )
    MICONVI INDSUTRIES, INC.; MICONVI               )
    PROPERTIES, LLC; BARON HAAG;                    )
    CHESTER ROMP,                                   )
    )
    Defendants-Appellees.                    )
    Before: MOORE and COOK, Circuit Judges; and ACKERMAN, District Judge*
    COOK, Circuit Judge. Plaintiff Adcor Industries, Inc., appeals the district court’s summary
    judgment order dismissing Adcor’s trade-secrets-misappropriation claim as time-barred by the
    discovery rule. Adcor also appeals the district court’s grant of summary judgment in favor of the
    defendants on Adcor’s claims that they breached or conspired to breach a consent decree. Having
    examined Adcor’s arguments for reversal of the district court’s judgment, we determine that none
    has merit and affirm.
    *
    The Honorable Harold A. Ackerman, Senior United States District Judge for the District of
    New Jersey, sitting by designation.
    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    I
    A complex history sets the stage for our review. We take the following factual and
    procedural background of this case largely from the district court’s November 10, 2005,
    memorandum of opinion and order:
    This case arises from a Consent Decree entered in March 1988 in Crown
    Cork & Seal Co, Inc v. Brau Mfg, Inc, Haag & Romp Design Engineering
    Consultants, Baron Haag and Chester Romp, Case No. C87-3300 (Krenzler, D.J.)
    . . . . Baron Haag and Chester Romp, defendants in the instant case, were defendants
    in Crown Cork & Seal, along with their companies Brau Manufacturing (“Brau”) and
    Haag & Romp Design Engineering Consultants (collectively, the “Brau
    Defendants”). In the Consent Decree, Haag and Romp admitted that, beginning in
    1967, they paid employees of Crown Cork & Seal over $300,000 to obtain drawings
    of Crown parts and other proprietary information. 
    Id. ¶¶ 1–6.
    They admitted using
    the drawings to manufacture replacement parts for Crown beverage fillers, and to
    create their own drawings for the same parts-all of which enabled them to compete
    unfairly with Crown in the marketplace. 
    Id. ¶ 3.
    Haag and Romp also p[l]eaded
    guilty to federal criminal charges stemming from this scheme.
    While the Decree allowed Haag and Romp to remain in the business of
    repairing and reconditioning beverage fillers, including Crown fillers, it prohibited
    them from manufacturing or obtaining other than from Crown, any Crown parts for
    this purpose, and from using any of the trade secrets or knowledge illegally obtained
    in furtherance of such business. Consent Decree ¶ 10. The Decree required Haag
    and Romp to inform their employees, customers, the trade and the public that they
    had forever withdrawn from the business of manufacturing Crown parts and, to the
    extent such parts would be required in their repair or reconditioning business, they
    would use only genuine Crown parts purchased directly from Crown. 
    Id. ¶ 11(d).
           The Decree also required them to promptly return to Crown all purloined drawings
    and other proprietary material in their possession, as well as any such documents that
    came into their possession in the future. It prohibited them from replicating any
    documents pertaining to the manufacture of Crown parts. 
    Id. ¶¶ 11,
    12. Haag and
    Romp agreed that the Consent Decree and its prohibitions would apply not only to
    them, but to their “successors, assigns, affiliates, agents, representatives, heirs,
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    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    administrators, executors, family members, and any person dealing directly or
    indirectly through them or in concert with them.” 
    Id. ¶¶ 7,
    9.
    In 1991 and while still working at Brau Manufacturing, Defendants Michael
    and Victoria Connelly (respectively, the lead mechanic and executive assistant)
    started what became a series of businesses (Bevcorp Industries, Inc., Bevcorp
    Properties, LLC, Miconvi Industries and Miconvi Properties) to service, refurbish
    and sell replacement parts for, among other things, Crown beverage fillers. . . . The
    Connellys continued to work for Brau until 1992, when they left Brau to devote their
    full time to their own businesses. In May 2000, Bevcorp Properties purchased the
    real estate and certain equipment of Brau for $1.2 million, and moved into Brau’s
    former building. Shortly thereafter, at Haag and Romp’s request, the Connellys had
    their employees move everything they didn’t purchase to a Willoughby, Ohio storage
    facility rented by Haag and Romp.
    Meanwhile, in 1997, Simplimatic, Inc. purchased Crown’s Machinery
    Division and the resulting company became known as Crown Simplimatic, Inc. In
    1998, Crown Simplimatic sued Adcor (the plaintiff in this case and a Crown
    competitor at the time), claiming that Adcor had misappropriated Crown drawings
    relating to a valve body which allegedly could not be made without Crown drawings.
    The parties eventually settled that case and, in December 2000, Adcor acquired
    certain assets of the Crown entities, including its drawings, out of bankruptcy.
    Adcor Indus. v. Bevcorp, LLC, No. 1:03 CV 1901, 
    2006 WL 2460864
    , at *1–2 (N.D. Ohio Aug. 23,
    2006).
    When a company called Enprotech Corporation purchased the assets of Bevcorp Industries
    and formed an entity called Bevcorp, LLC, the Connellys became its officers. With the Connellys
    at the helm, Bevcorp Industries changed its name to Miconvi Industries, Inc., and Bevcorp Properties
    changed its name to Miconvi Properties, LLC. Miconvi Properties leases the former Brau real estate
    to Bevcorp, LLC.
    -3-
    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    On September 9, 2003, Adcor filed a complaint against Bevcorp, LLC, the Connellys,
    Miconvi Industries, Miconvi Properties, Baron Haag, and Chester Romp, raising claims of trade
    secrets misappropriation, breach of the consent decree, and conspiracy to breach the consent decree.1
    The court severed and tried the contempt claims, then directed the parties to submit post-hearing
    briefs. But while the court was in the process of preparing a ruling from that trial, Adcor filed a
    request for an emergency contempt hearing and sanctions upon discovering business records and
    approximately 1,100 Crown or Crown-derivative drawings in a safe in Haag and Romp’s
    Willoughby storage facility, tipped off by Romp’s testimony at the earlier hearing. The court held
    the requested supplemental contempt hearing on June 22, 2005. During the hearing, Adcor produced
    the drawings, together with evidence suggesting that Brau drawings migrated to one of Bevcorp’s
    customers through Bevcorp. See Supp’l Contempt Hr’g Tr. (J.A. 125–58).
    The district court resolved the contempt claims, which required Adcor to prove to a
    reasonable certainty that the Connellys acquired Crown or Brau drawings directly from Haag and
    Romp, by granting summary judgment to the Connellys.2 As for the trade secrets misappropriation
    claim, the district court granted summary judgment in favor of Bevcorp, finding that the submissions
    by Bevcorp would convince any rational fact finder that the claim was time-barred by the discovery
    1
    The district court dismissed Adcor’s other claims for tortious interference with business
    contracts and unfair competition, and Adcor does not appeal that dismissal.
    2
    Haag and Romp were found in contempt and fined $150,000 between them.
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    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    rule.3 Though Haag and Romp had not moved for summary judgment on the trade secret
    misappropriation claim, the court granted judgment sua sponte in their favor, reasoning that the same
    accrual-date evidence would bar any claim against them.
    II
    A
    Adcor first challenges the district court’s determination of the accrual date for the
    misappropriation claim, saying that genuine issues of material fact preclude judgment as a matter
    of law.4
    According no deference to the district court’s conclusion, as is our practice in reviewing a
    grant of summary judgment, Wright v. Murray Guard, Inc., 
    455 F.3d 702
    , 706 (6th Cir. 2006), and
    3
    As noted by the district court in a footnote to its August memorandum opinion, the parties
    agreed that Adcor stood in the shoes of the Crown entities for purposes of the limitations period.
    Adcor Indus. v. Bevcorp, LLC, No. 1:03 CV 1901, 
    2006 WL 2460864
    , at *3 n.2 (N.D. Ohio Aug.
    23, 2006); see also Adcor Indus. v. Bevcorp, LLC, 
    411 F. Supp. 2d 778
    , 785 (N.D. Ohio 2005)
    (“There is no dispute that this four-year statute of limitations applies to Adcor’s misappropriation
    claim. There is also no dispute that Adcor is subject to all the defenses that could have been raised
    by the defendants against Adcor’s predecessors-in-interest, Crown and Crown Simplimatic.” (citing
    Inter Ins. Exch. of the Chicago Motor Club v. Wagstaff, 
    59 N.E.2d 373
    , 375 (Ohio 1945))).
    4
    We take this as the first properly presented issue because, though Adcor’s Statement of
    Issues Presented for Review suggests an abuse of discretion by the district court in “limiting
    discovery on the Consent Decree issues solely to misappropriated drawings in the hands of Appellees
    that were ‘identical’ to the drawings discovered in the Brau warehouse,” its brief fails to develop any
    argument on this issue to support the claim. Adcor thus forfeits this argument. See United States
    v. Reed, 
    167 F.3d 984
    , 993 (6th Cir.), cert. denied, 
    528 U.S. 897
    (1999) (stating that a party forfeits
    an argument on appeal when it is mentioned in only a cursory manner with no further development).
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    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    construing all evidence in the light most favorable to Adcor, the nonmoving party, 
    id. (citing Matsushita
    Elec. Indus. Co. v. Zenith Radio Corp., 
    475 U.S. 574
    , 587 (1986)), we are unpersuaded
    by Adcor’s arguments for reversal on this issue.
    As the parties agree, Ohio’s Uniform Trade Secrets Act supplies the relevant limitations
    period: “An action for misappropriation shall be commenced within four years after the
    misappropriation is discovered or by the exercise of reasonable diligence should have been
    discovered. For the purposes of this section, a continuing misappropriation constitutes a single
    claim.” Ohio Rev. Code Ann. § 1333.66. Likewise, the parties agree that the statute incorporates
    the discovery rule, meaning we count time from when the trade secret’s owner could have discovered
    the misappropriation, rather than when the wrong first occurred. See O’Stricker v. Jim Walter Corp.,
    
    447 N.E.2d 727
    , 730 (Ohio 1983) (describing the discovery rule as an exception to the ordinary
    accrual rule). “Discovery” as used here requires “knowledge of such facts as would lead a fair and
    prudent man, using ordinary care and thoughtfulness, to make further inquiry.” Hambleton v. R.G.
    Barry Corp., 
    465 N.E.2d 1298
    , 1300-01 (Ohio 1984) (quoting Schofield v. Cleveland Trust Co., 
    78 N.E.2d 167
    , 172 (Ohio 1948)). Because Adcor filed its action on September 9, 2003, we examine,
    as did the district court, the record evidence to determine whether the Crown entities had sufficient
    reason before September 9, 1999, to suspect the Connellys misappropriated their trade secrets (i.e.,
    the Crown drawings). Like the district court, we conclude they did have reasons to suspect, they did
    not investigate those suspicions, and they affirmatively forwent—for economic reasons—bringing
    a claim.
    -6-
    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    Former employees supply evidence that Crown suspected misappropriation before Adcor
    purchased its trade secrets. For example, Terry Gordon, a former Crown service manager, testified
    that he learned Bevcorp was manufacturing Crown parts in the “early ‘90s,” that he came to
    understand that Bevcorp produced an increasing number of parts, and that he heard rumors that
    Bevcorp took drawings from Brau. Gordon discussed the possibility of misappropriation with two
    named managers at the company. At one point, he saw Michael Connelly doing suspiciously
    technical repair work. He related the incident to his manager, who promised to “check into it.”
    Chuck Darby, Crown’s director of operations, corroborated Gordon’s account when he stated
    that people at the company suspected the Connollys of misappropriation, though he limited his
    statements in a later affidavit. Darby first described widespread rumors of drawings, then later
    claimed he heard only one sourceless and incredible rumor. Compare Charles Darby Aff. 5/19/2005
    ¶4 (J.A. 572) (“Many people . . . knew that Mike Connelly had left Brau Manufacturing, started
    Bevcorp, and was selling Crown parts. Some people at [Crown] suspected that Mike Connelly had
    taken Crown drawings from Brau Manufacturing when he left and was using them in his new
    business, Bevcorp”), with Charles Darby Aff. 9/28/2005 ¶3–4 (J.A. 633) (“I cannot recall the source
    of this rumor. I did not believe the rumor . . . I possess no knowledge or information to support any
    suspicion or belief that Mike Connolly or Bevcorp possess or use Crown drawings.”).
    Robert Reiss, a Crown employee who eventually joined Adcor, gave supportive—albeit
    inconsistent—testimony. In 2003 he testified that he knew that outside entities were making Crown
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    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    parts and opined that “they got ahold of the drawings.” In a later deposition, Reiss named two
    companies that were manufacturing Crown parts while he worked at Crown: Bevcorp and
    Serv-A-Tech. When confronted with his earlier testimony, he did not have “any idea” what he meant
    by his prior statements.
    Adcor also submits affidavits from Crown leaders including B. Douglas Goodell and James
    W. Parker, who do not remember any rumors. But notice need not reach every member of an
    organization to be effective, and requiring such a rule would eviscerate the discovery rule’s objective
    component. Far from creating a genuine dispute of fact, such blanket statements at most “show that
    there is some metaphysical doubt as to the material facts.” 
    Matsushita, 475 U.S. at 586
    .
    On top of all the other evidence indicating that Adcor possessed inquiry notice of the
    misappropriation, two employees’ statements show that the delay in bringing suit was a strategy
    deadlock: Crown and Adcor vacillated on whether to sue or buy Bevcorp until it was too late. Darby
    mentioned that Crown considered buying out Bevcorp to stop the competition, but the company
    eschewed litigation because “Bevcorp’s operations were not causing sufficient economic harm . .
    . to justify the cost of litigation.” Charles Darby Aff. ¶10 (J.A. 573). Douglas Goodell stated that
    Adcor considered suing Bevcorp, among other companies, “in contemplation as one of many
    strategies.”
    Adcor resists the district court’s labeling of the record evidence as undisputed. For example,
    Terry Gordon’s testimony, it says, should be assessed as biased (Gordon being a former Brau
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    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    employee in line for Mike Connelly’s position at Bevcorp), unclear, unreliable, and inconsistent.
    Such obvious and compelling economic interest in the outcome of the case, Adcor insists, should
    disqualify Gordon from being believed. As Bevcorp points out, however, a nonmovant does not
    necessarily defeat summary judgment by arguing that the fact finder could dismiss undisputed
    evidence as not credible. True, courts “may not make credibility determinations or weigh the
    evidence,” Reeves v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 150 (2000), but bare claims
    of bias do not undermine undisputed evidence, see Fogerty v. MGM Group Holdings Corp., 
    379 F.3d 348
    , 353–54 (6th Cir. 2004). “[I]n the ‘new era’ of summary judgments,” we have afforded
    trial courts “considerably more discretion in evaluating the weight of the nonmoving party’s
    evidence.” Cox v. Ky. Dep’t of Transp., 
    53 F.3d 146
    , 150 (6th Cir. 1995). A defendant must
    frequently rely on evidence from its own employees in seeking summary judgment; courts may credit
    such testimony in the absence of some grounds to question it. See Stratienko v. Cordis Corp., 
    429 F.3d 592
    , 598 (6th Cir. 2005). Adcor did not offer any “affirmative evidence,” 
    Cox, 53 F.3d at 150
    ,
    other than the employment relationship, to rebut the extensive list of misappropriation cues Adcor
    overlooked.
    Adcor next argues that the district court erred in ignoring a second affidavit of Charles Darby
    limiting and qualifying his earlier statements suggesting widespread talk of misappropriation. The
    district court did, however, assess the second affidavit in its summary judgment opinion—the second
    affidavit simply did not affect the court’s view.       As emphasized in the decision denying
    reconsideration, “That Mr. Darby could not recall the names of the individuals at CC&S [Crown]
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    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    who knew or suspected that Michael Connelly purloined the drawings does not negate the general
    knowledge that he had at the time.” Memorandum of Opinion and Order (J.A. 964). Such rumors
    triggered inquiry notice under Ohio law. Though Adcor argues that the discovery rule pressures
    litigants to file prematurely based on unsubstantiated rumors and suspicions, the discovery rule
    requires the owner of a trade secret to conduct a timely and reasonable investigation after learning
    of possible misappropriation, not to file prematurely. The discovery rule is wholly consistent with
    the nature of trade secrets; because trade secrets are not subject to a filing system, owners’ diligence
    in taking affirmative steps to protect them is crucial. See Ne. Ohio Coll. of Massotherapy v. Burek,
    
    759 N.E.2d 869
    , 878 (Ohio Ct. App. 2001) (plaintiff claiming misappropriation must “show the
    extent to which the information is known outside the business and the precautions which plaintiff
    has taken to guard the secrecy of the information”); see also State ex rel. Rea v. Ohio Dep’t of Educ.,
    
    692 N.E.2d 596
    , 601 (Ohio 1998) (“[O]nce material is publicly disclosed, it loses any status it ever
    had as a trade secret.”). Though the district court conceded that rumors might not suffice in every
    case, this case involves known “convicted felons who misappropriated Crown’s trade secrets,”
    against whom Adcor had both the incentive and the means to police any repeat offenses. Adcor
    
    Indus., 411 F. Supp. 2d at 791
    . Despite Adcor’s insistence that any investigation by Crown would
    have encountered “lies, deceit, and shell games,” Adcor ultimately discovered drawings and other
    evidence of misappropriation in an unlocked safe.
    Adcor persists with a novel argument that the district court erred in failing to consider the
    possibility “that the misappropriation did not occur in a single transaction sometime in the early
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    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    1990’s, but was the result of a concerted and ongoing effort to misappropriate Crown/Adcor
    drawings, whenever and by whatever means they could do so.” Adcor Br. at 55. According to
    Adcor, even though the district court granted summary judgment to the defendants on earlier
    misappropriations, it should have permitted discovery on the question of whether there were
    additional misappropriations in 2000 when the Connellys and Bevcorp moved the safe containing
    the Crown drawings to the Brau warehouse. 
    Id. at 58–59.
    Yet the Ohio statute clearly forecloses
    this argument, providing: “For the purposes of this section, a continuing misappropriation constitutes
    a single claim.” Ohio Rev. Code Ann. § 1333.66. As the district court observed, “Adcor’s
    interpretation of the limitations statute (i.e., that each misappropriation would trigger a new
    limitations period) would render the statute meaningless.” Memorandum of Opinion and Order (J.A.
    966). What’s more, the district court examined Bevcorp’s stash of drawings and found they differed
    from the Brau drawings, such that the safe could not have been their source; thus, even if Adcor’s
    continuing wrong theory were cognizable under Ohio law, Adcor would not be able to show recent
    wrongs justifying separate relief. See Contempt Ruling, Adcor Indus., No. 1:03 CV 1901, 
    2006 WL 2460864
    , at *9 (N.D. Ohio Aug. 23, 2006).
    B
    Next, Adcor contends that the district court erred in including Haag and Romp in the grant
    of summary judgment in the absence of a motion from them. Rumors that Bevcorp had Brau
    drawings sufficed to put Adcor on notice that the Brau defendants were again using Crown drawings.
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    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    Adcor cites no case forbidding granting summary judgment for corollary claims. Thus, the statute
    of limitations ran for claims against all of the Defendants.
    C
    Finally, Adcor claims the district court erred in granting summary judgment on Adcor’s
    claims that the Connelly defendants were in contempt of the consent decree and conspired to violate
    the consent decree. We disagree because Adcor failed to meet its evidentiary burden, despite the
    opportunity for supplemental hearings.
    Here the summary judgment question hinged on whether the Connelly Defendants were in
    contempt of the Consent Decree, a question that is reviewed for abuse of discretion. Peppers v.
    Barry, 
    873 F.2d 967
    , 968 (6th Cir. 1989). In a civil contempt proceeding, the burden is on the
    petitioner to “prove by clear and convincing evidence that the respondent violated the court’s prior
    order.” Grace v. Ctr. for Auto Safety, 
    72 F.3d 1236
    , 1241 (6th Cir. 1996).
    The district court properly determined that although the evidence demonstrated that Michael
    Connelly procured and copied Crown drawings in the past, Adcor did not meet its burden of
    providing clear and convincing evidence that Michael Connelly obtained those drawings through
    Romp and Haag. 8/23/06 Memorandum of Opinion and Order 26 (J.A. 196).
    Citing Vulcan, Inc. v. Fordees Corp., 
    658 F.2d 1106
    (6th Cir. 1981), Adcor also argues that
    the district court erred in determining that it failed to show by clear and convincing evidence that the
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    Adcor Industries v. Bevcorp, LLC, et al.
    Connelly Defendants were in privity with Haag and Romp by purchasing their assets. Adcor
    erroneously believes there are two points made in Vulcan supporting its position. First, Adcor points
    to language explaining that it was immaterial whether the successor obtained title to the drawings
    because “[t]he important point is that the drawings enabled [the successor] to construct a reline tower
    to fulfill its contract with U.S. Steel.” 
    Id. at 1110.
    Second, Adcor cites Vulcan for the proposition
    that “a company does not have to ‘formally take over its predecessor’s business’ in order to be
    considered a ‘successor in interest.’” Adcor Br. at 60 (quoting 
    Vulcan, 658 F.2d at 1111
    ). Adcor
    lacked clear and convincing evidence that Bevcorp succeeded Romp or Haag to anything but
    manufacturing and storage facilities. More to the point, the district court found that there was not
    clear and convincing evidence that the Connelly Defendants even obtained drawings from Haag and
    Romp. Therefore, the question of whether the Connelly Defendants had title or formally took over
    Haag and Romp’s business is irrelevant. Accordingly, Adcor has not established that the district
    court’s privity decision was an abuse of discretion.
    Adcor also asserts that the district court abused its discretion by failing to exercise in rem
    jurisdiction over the drawings in question. “Federal courts have issued injunctions binding on all
    persons, regardless of notice, who come into contact with property which is the subject of a judicial
    decree.” United States v. Hall, 
    472 F.2d 261
    , 265–66 (Former 5th Cir. 1972). A court may “enter[]
    a decree binding on a particular piece of property” when it “is necessarily faced with the danger that
    its judgment may be disrupted in the future by members of an undefinable class—those who may
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    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    come into contact with the property. The in rem injunction protects the court’s judgment.” 
    Id. at 266.
    Adcor cites Hall and Converse v. Highway Constr. Co. of Ohio, 
    107 F.2d 127
    (6th Cir.
    1939), in support of its in rem argument. These cases are easily distinguishable in that there is no
    indication that the Brau consent decree purported to confer in rem jurisdiction. The consent decree
    plainly limits its reach to the defendants’ “successors, assigns, affiliates, agents, representatives,
    heirs, administrators, executors, family members, and any person dealing directly or indirectly
    through them or in concert with them.” Consent Decree 3–4 (J.A. 60-61). In light of the plain
    language in the consent decree, the district court certainly did not abuse its discretion in refusing to
    exercise in rem jurisdiction.
    III
    In sum both claims fail on knowledge, as Adcor had too much to prevent accrual of the trade
    secrets claim, while Bevcorp had too little to be held in contempt of the consent decree. We affirm
    the judgment of the district court.
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    No. 06-4260
    Adcor Industries v. Bevcorp, LLC, et al.
    KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
    I dissent from Parts II A and B because I believe that genuine issues of material fact preclude an
    award of summary judgment based on timeliness grounds.
    Adcor has successfully challenged each piece of evidence on which the district court relied
    in granting summary judgment. Adcor has presented affirmative evidence from which a reasonable
    fact-finder could determine that defendants’ witness Gordon was biased and incredible; hence, the
    district court erred in relying on his testimony as undisputed evidence. Darby’s knowledge of an
    unsubstantiated rumor does not establish facts that would lead a fair and prudent person, using
    ordinary care and thoughtfulness, to make further inquiry under the facts presented here. When
    Reiss’s several inconsistent depositions are considered and examined in a light most favorable to
    Adcor, it appears that Reiss did not believe that Bevcorp possessed the Crown drawings in the
    critical time before September 1999. Finally, when Goodell’s nonconflicting affidavit is considered,
    Goodell does not support the idea that Crown earlier contemplated suing Bevcorp for
    misappropriation.
    Based on all of these limitations of defendants’ evidentiary support, I believe that there is a
    genuine issue of material fact as to when Adcor should have been on notice as to the possibility that
    the Connelly defendants misappropriated the Crown drawings. Thus, I would hold that defendants
    are not entitled to summary judgment on the statute-of-limitations issue. I respectfully dissent.
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