Universal Engraving, Inc. v. Metal Magic, Inc.

concurring in part and dissenting in part:

I agree with the Court on all issues except its treatment of the post-judgment *371 Orca decision of the Arizona Supreme Court interpreting Ariz.Rev.Stat. § 44-407. See Orca Commc’ns Unlimited, LLC v. Noder, 236 Ariz. 180 , 337 P.3d 545 (2014). In concluding that Universal Engraving, Inc.’s (“UEI”) common law claims were preempted by the Arizona Uniform Trade Secrets Act (“AUTSA”), the district court explicitly relied upon an interpretation of the statute’s preemption provision that was expressly, albeit subsequently, disavowed in Orea. I respectfully dissent from the Court’s disposition to that extent.

I

The Orea court held that AUTSA displaces only claims for the misappropriation of trade secrets, such that other common-law claims — including torts based on the misappropriation of confidential information falling outside AUTSA’s definition of a trade secret — remain viable. See id. at 548, 550. As UEI repeatedly alleged claims based on the misappropriation of confidential information in addition to its trade secrets claims, I am persuaded the district court erred in preventing UEI from proceeding to trial on such claims. See id. at…

MEMORANDUM **

Universal Engraving, Inc. (“UEI”) appeals both a judgment entered against it based on a jury verdict following trial on its claims against defendants and an award of attorneys’ fees and costs entered by the district court following entry of that judgment. We affirm the judgment but vacate the award of fees and costs and remand that matter for further proceedings.

The district court dismissed UEI’s claims, other than the claim under the Arizona Uniform Trade Secrets Act (“AUTSA”), on the ground that those claims were precluded by Ariz. Rev. Stat. § 44-407 . At the time of the dismissal, the court did not have the benefit of the subsequent decision of the Arizona Supreme Court in Orca Communications Unlimited, LLC v. Noder, 236 Ariz. 180 , 337 P.3d 545, 547-49 (2014) (holding that Ariz.Rev.Stat. § 44-407 applies to preclude claims based on trade secrets only and not a claim based on confidential information that does not rise to the level of a trade secret). As this is a matter of Arizona law, the Orea decision is binding and applies to this case.

Nonetheless, it does not appear to us that the dismissal of the other claims was erroneous or prejudicial to UEI. The…

FILED

NOT FOR PUBLICATION FEB 11 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNIVERSAL ENGRAVING, INC., Nos. 12-17351 & 13-15743

Plaintiff - Appellant, D.C. No. 2:08-cv-01944-GMS

v.

MEMORANDUM*

METAL MAGIC, INC., an Arizona corporation; CHARLES R. BROWN, an individual,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding

Argued and Submitted January 14, 2015 San Francisco California

Before: O’SCANNLAIN and CLIFTON, Circuit Judges, and RAKOFF, Senior District Judge.**

Universal Engraving, Inc. (“UEI”) appeals both a judgment entered against

it based on a jury verdict following trial on its claims against defendants and an

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District Court for the Southern District of New York, sitting by designation. award of attorneys’ fees and costs entered by the district…