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Milliken & Co. v. Evans

United States District Court, D. South Carolina

February 8, 2016

Milliken & Company, Plaintiff,
Richard W. Evans, Defendant.


Bruce Howe Hendricks United States District Judge.

This matter is before the Court on Defendant’s motion to dismiss or, in the alternative, for a more definite statement, and to strike (ECF No. 95) and Plaintiff’s motion to consolidate (ECF No. 103). For the reasons set forth in this order, Defendant’s motion to dismiss is denied. Regarding the motion to consolidate, the Court grants Defendant seven (7) days to file additional briefing delineating: 1) whether Defendant still objects to consolidation given the Court’s ruling on the motion to dismiss, and 2) if he still objects, why Defendant believes consolidation is not appropriate under the applicable law. The Plaintiff shall have seven (7) days thereafter to file a reply.


Plaintiff (“Milliken”) designs, manufactures, markets, and sells commercial carpet products, including a wide range of high-performance modular and broadloom carpet products and floor coverings to customers in the commercial carpet markets, including the corporate, education, government, healthcare, senior living, retail, hospitality, aviation, and assembly markets, both inside and outside of the United States. (ECF No. 94 at 4.) Plaintiff refers to this part of its business as its Floor Covering Division, within which Milliken maintains manufacturing facilities in the United States, the United Kingdom, and China. (Id.) Plaintiff hired Defendant (“Evans”) in October 2009 in connection with the purchase of Defendant’s former employer-Product Concepts Residential, LLC (“Constantine”)-in which Defendant held an ownership interest. (Id. at 5.) Plaintiff and Defendant executed an Executive Employment and Protective Covenants Agreement (“Employment Agreement”) on October 5, 2009, under which Milliken employed Evans as the President of Milliken’s newly-established “Constantine Division, ” formed following its purchase of Constantine. (Id.; ECF No. 20-4) The Employment Agreement contained the following restrictive covenants: non-competition, non-solicitation of customers, non-solicitation of associates, and non-disclosure and non-use of confidential information and trade secrets. (ECF No. 94 at 6-7.) Defendant served as a high ranking executive within Milliken-initially as a Division President and then, following a promotion after a company reorganization, as Division Business Manager-and participated in the sales and marketing of Milliken’s products throughout the United States and the development of corporate strategies related thereto. (Id. at 4.)

Plaintiff alleges that, as an upper level executive within the company, Defendant was exposed to a significant amount of Milliken’s confidential information and trade secrets in the course of his work, including regional and business strategy, financial performance, customer prospects, pricing and design information, delivery and quality issues, and marketing initiatives. (Id. at 5.) Plaintiff further alleges that Milliken takes extensive precautions to protect the confidential, proprietary and trade secret information it provides to associates like Defendant, including drafting the restrictive covenants like those itemized above, which it requires associates to endorse in their employment contracts. (Id. at 6.)

On June 10, 2010, Plaintiff and Defendant executed an Agreement to Modify and Amend Provisions of a Prior Employment and Protective Covenants Agreement (“Amendment to Employment Agreement”). (Id. at 9; ECF No. 20-5.) Under the Amendment to Employment Agreement, Milliken agreed to employ Evans as Business Manager of its new Commercial Carpets, North America division. (ECF No. 94 at 9.) Evans agreed “to execute and be bound by all of the terms of Milliken’s Associate Agreement.” (Id.; ECF No. 20-5 at 2.) Milliken’s Associate Agreement (“Associate Agreement”) contains non-competition, non-solicitation, and non-disclosure covenants similar to those contained in Evan’s original Employment Agreement. (ECF No. 94 at 9- 12; ECF No. 20-6 at 3-7.) Evans asserts that he did not sign the Associate Agreement and Milliken is unable to locate a copy of the Associate Agreement signed by Evans. (ECF No. 94 at 12.)

Evans voluntarily notified Milliken of his resignation on March 12, 2013 by way of a hand-written letter. (Id.) Plaintiff alleges that following his resignation, Defendant has provided services for or on behalf of a competitor company, Totally Enterprises (“Totally Carpet”), in direct violation of his contractual obligations. (Id. at 14-15, 19-23.) In addition, Plaintiff alleges that Defendant was working for and/or performing services for or on behalf of Totally Carpet while he was still employed at Milliken, again in violation of his contractual obligations. (Id. at 15, 17-18.) It is alleged that Evans became officially engaged in running the operations of Totally Carpet and serving as President of the company on May 20, 2013. (Id. at 19.) The owner and founder of Totally Carpet is Robert Weiner (“Weiner”), another former Milliken executive. (Id. at 13.) Weiner was previously the majority owner of Constantine-the same company in which Evans held a minority ownership interest, which was sold to Milliken in the October 2009 acquisition. (Id. at 14.) When Milliken acquired Constantine, Weiner signed an employment agreement and agreed to certain obligations not to compete against Milliken. (Id.) Weiner ceased working for Milliken prior to Evans’ resignation and, on December 5, 2012, entered into a consulting agreement with Milliken. (Id.) On March 25, 2013, Milliken and Weiner terminated the consulting agreement and entered a Collaboration and Protective Covenants Agreement (“Weiner Agreement”). Plaintiff alleges that in the Weiner Agreement, Weiner agreed to refrain from soliciting employees or exclusive sales agents of Milliken into competition against Milliken. (Id.) Plaintiff further alleges, inter alia, numerous communications by Evans to Weiner, and actions taken by Evans in conjunction with Weiner and Totally Carpet, in violation of Evans’ alleged duties of non-competition, non-solicitation, and non-disclosure. (See Id. at ¶ 64, 72, 82, 134.)


Motion to Dismiss-Rule 12(b)(6)

A plaintiff’s complaint should set forth “a short and plain statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does not require ‘detailed factual allegations, ’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court “accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff . . . .” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009). A court should grant a Rule 12(b)(6) motion if, “after accepting all well-pleaded allegations in the plaintiff’s complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff’s favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

As previously noted, to survive a Rule 12(b)(6) motion to dismiss, a complaint must state “a plausible claim for relief.” Iqbal, 556 U.S. at 679 (emphasis added). “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. at 678 (quoting Twombly, 550 U.S. at 557). Stated differently, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Still, Rule 12(b)(6) “does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations.” Colon Health Centers of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th Cir. 2013) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). “A plausible but inconclusive inference from pleaded facts will survive a motion to dismiss . . . .” Sepulveda-Villarini v. Dep’t of Educ. of Puerto Rico, 628 F.3d 25, 30 (1st Cir. 2010).

Motion for a More Definite Statement-Rule 12(e)

“A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). A Rule 12(e) “motion is ‘designed to strike at unintelligibility rather than simple want of detail.’” Ethox Chem., LLC v. Coca-Cola Co., No. 6:12-cv-1682-TMC, 2013 WL 41001, *5 (D.S.C. Jan. 3, 2013) (quoting Frederick v. Koziol, 727 F.Supp. 1019, 1020-21 (E.D. Va. 1990)). Moreover, such a motion “‘is not a substitute for the discovery process, and where the information sought by the movant is available or properly sought through discovery, the motion should be denied.’” Id. The decision to grant a Rule 12(e) motion rests within the discretion of the Court. Hodges v. Sloan Const., No. 7:13-CV-01799-JMC, 2013 WL 6903755, at *3 (D.S.C. Dec. 31, 2013) (citing Hodgson v. Virginia Baptist Hosp., 482 F.2d 821, 824 (4th Cir. 1973)).

Motion to Strike-Rule 12(f)

Rule 12(f) of the Federal Rules of Civil Procedure permits the Court to strike “any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). “Rule 12(f) motions are generally viewed with disfavor ‘because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.’” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, ...

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