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Weinberger v. 911 Datamaster, Inc.

United States District Court, D. Montana, Missoula Division

September 3, 2019

LAWRENCE WEINBERGER, Plaintiff,
v.
911 DATAMASTER, INC., et ah, Defendants.

          OPINION AND ORDER

          DONALD W. MOLLOY JUDGE.

         Plaintiff Lawrence Weinberger was a software developer for Defendant 911 Datamaster, Inc. from January 2012 until he was terminated on June 29, 2017. After his termination, Weinberger filed an eleven-count complaint against 911 Datamaster, its President and CEO Scott Krehbiel, and its Executive Vice President Eric Regnier (collectively "Datamaster"), alleging wrongful discharge, violations of the Americans with Disabilities Act ("ADA") and Montana Human Rights Act, breach of contract, fraud, and various causes of action related to Datamaster's alleged theft of his intellectual property. (Doc. 5.) Datamaster seeks summary judgment on all eleven claims. (Doc. 23.) For the following reasons, the motion is granted.

         Background[1]

         Lawrence Weinberger is a software developer in Missoula, Montana. (Doc. 13 at ¶¶ 3d, 3e.) While working for a company called Contact One, he developed software called MapSAG that incorporated geo-spatial mapping into a program used by many 911 dispatchers across the country. (Doc. 33-13 at ¶ 3; Doc. 53 at ¶ 10.)

         Datamaster is a Kansas corporation that develops 911 dispatch software. (See Doc. 53 at ¶¶ 1, 4.) In 2011, Datamaster decided to expand its offerings to include a program that, like MapSAG, incorporated geographic information. (Id. at ¶¶ 4-6.) Datamaster contacted Weinberger after realizing its existing employees did not have the necessary experience to develop the new product. (Id. at ¶¶ 5-9.)

         In early January 2012, Datamaster hired Weinberger as a consultant. (Doc. 13 at ¶¶ 3f, 3h; Doc. 33-13 at ¶ 17; Doc. 53 at ¶ 15.) On January 3, 2012, Weinberger signed an agreement labeled "Nondisclosure/Noncompetition/Ownership of Code," which provided "911 Datamaster or its successors retain exclusive and sole ownership of any and all source and object code created by Larry Weinberger for 911 Datamaster." (Doc. 53 at ¶ 15; Doc 26-7.) He also signed a "Contract Programmer Agreement" which similarly provided Datamaster owned or had unconditional rights to his work. (Doc. 53 at ¶ 18; Doc. 26-8.)

         On January 21, 2012, Datamaster hired Weinberger as a full-time employee. (Doc. 13 at ¶ 3f; Doc. 33-13 at ¶ 25; Doc. 53 at ¶¶ 19-20.) Weinberger signed the employment offer, which provided, among other things, that his base salary would be $9, 583.34 per month, or $115, 000 annually, and that Datamaster would provide health, dental, and life insurance. (Doc. 53 at ¶ 20; Doc. 26-9.) The offer instructed Weinberger to sign and complete a Nondisclosure/Noncompetition Agreement, also called a Confidentiality Agreement, by his first day of work. (Id.) That Agreement provided, in part, that Datamaster would own any "inventions processes, improvements, ideas, copyrightable works of art, trademarks, copyrights, formulas, manufacturing, technology, developments, writings, discoveries, and trade secrets"that Weinberger developed within the scope of his employment. (Doc. 26-10 at 3.)

         Weinberger never signed the Confidentiality Agreement. (See Doc. 53 at ¶¶ 21-26.) According to Weinberger, Datamaster CEO Scott Krehbiel promised he would retain ownership of his intellectual property and knew he had not signed the Agreement. (Id. at ¶¶ 21-27.) Datamaster denies that promise was made and claims it was unaware Weinberger had not signed the Agreement until this litigation. (Id. at ¶ 25.) Weinberger also asserts Krehbiel promised him annual bonuses of $10, 000, annual 3% cost of living raises, and long-term disability insurance. (Id. at ¶ 27.) Datamaster denies this. (Id.)

         As an employee at Datamaster, Weinberger participated in the development of a program called SpatialStation. (Doc. 33-13 at ¶ 33.) Weinberger estimates he performed at least 95% of the programming for SpatialStation. (Id. at ¶ 34.) Krehbiel is unsure of how work on SpatialStation was divided among Datamaster's coders but agrees that Weinberger was the primary coder on the project. (Doc. 26-2 at 43-44.)

         In December 2016, Weinberger advised Krehbiel that he could no longer work full time because his health was declining. (See Doc. 53 at ¶¶ 50-51.) They agreed Weinberger would work four days per week and his salary would be reduced by 20%. (Id. at ¶ 55.) In March 2017, Weinberger asked Krehbiel for a three-day work week with no reduction to his salary or benefits. (Id. at ¶ 58.) Krehbiel agreed. (Id. at ¶ 60.) However, Datamaster claims the arrangement was temporary until another developer could take over Weinberger's responsibilities. (Id. at ¶ 59.) Weinberger claims he never agreed to transition his role to another employee. (Id.) Rather, Weinberger claims Krehbiel assured him his job was safe and he could work as little as one day a week as a "guru" or "wizard." (Id. at ¶¶ 52-54, 56-57, 61.) The meaning of the terms "guru" and "wizard" is disputed. Weinberger uses them as a job title. (See id.) Krehbiel uses the terms generally to describe Datamaster's coders, (Doc. 26-11 at 5-6, 8), but explained in his deposition that Weinberger's "job wasn't changing to a wizard," (id. at 10). In any event, on June 29, 2017, Weinberger was terminated from Datamaster. (Doc. 53 at ¶ 63; Doc. 13 at ¶ 3k.)

         Weinberger filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on May 11, 2018. (Doc. 53 at ¶ 79.) The EEOC issued a Notice of Right to Sue on June 14, 2018. (Id. at ¶ 80.) Weinberger sued in state court on May 24, 2018, alleging wrongful discharge (Count 1), actual fraud (Count 2), actual malice (Count 3), violations of the ADA and Montana Human Rights Act (Count 4), intentional interference with prospective economic advantage (Count 5), unjust enrichment (Count 6), negligent retention and supervision (Count 7), breach of contract (Count 8), breach of the obligation of good faith and fair dealing (Count 9), conversion (Count 10), and misappropriation of trade secrets (Count 11). (Doc. 5.) Datamaster removed to this Court on July 27, 2018, (Doc. 1), and moved for summary judgment on all claims on May 14, 2019, (Doc. 23).

         Legal Standard

         A "court shall grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant has the initial burden to show the absence of any genuine dispute of material fact. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). The burden then shifts to the nonmoving party to produce specific facts that show a material issue remains to be tried. Id. at 1103. A nonmoving party with the burden at trial must produce enough evidence to establish the essential elements of its claims. Id. The court must view all the evidence and draw all justifiable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, only evidence that could be presented in an admissible form at trial can be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). The court must not weigh the evidence or make credibility determinations. Anderson, 477 U.S. at 255.

         Analysis

         I. Propriety of Summary Judgment

         Weinberger argues summary judgment is premature because discovery has not closed and he cannot present facts to oppose Datamaster's motion. However, Weinberger filed his response on June 26, (Doc. 33-1), five days after the June 21 discovery deadline, (Sched. Or., Doc. 13 at ¶ 1). He contends discovery has not closed because Datamaster agreed to extend the June 21 deadline. Deadlines aside, Weinberger has not established that further discovery is warranted before the Court considers Datamaster's motion. Rule 56 provides, in relevant part,

[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). The nonmovant must show "(1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment." Stevens v. CoreLogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (internal quotation marks omitted). Speculation that additional discovery may uncover material facts is not enough. See id.

         Weinberger submitted affidavits from his attorneys, Matthew Lowy and Kai Puhrmann, that deposing Datamaster's Human Resources Director Kelly Krehbiel, Datamaster shareholder Babu Cherian, and Datamaster programmer Jay Bohac is necessary to oppose Datamaster's motion for summary judgment. (Docs. 33-9, 33-10.) The depositions were scheduled for May 20 and 21, 2019, but were canceled after the unexpected death of Purhmann's mother earlier that month. (Doc. 33-10 at ¶¶ 12-13.) Lowy and Puhrmann have not met their burden under Rule 56(d) to identify "the specific facts" they hope to learn from the canceled depositions. See Stevens, 899 F.3d at 678. Lowy and Puhrmann merely identify the subject matter the proffered deponents would address. (Doc. 33-9 at ¶¶ 24-26; Doc. 33-10 at ¶¶ 15-17.) Beyond that, they offer only that "[t]he depositions of Ms. Krehbiel, Mr. Cherian, and Mr. Bohac are needed to demonstrate material facts at issue in this case and therefore Defendant's motion for summary judgment is premature," (Doc. 33-9 at ¶ 27; Doc. 33-10 at ¶ 18), and "[t]he answers from the depositions of Ms. Krehbiel, Mr. Cherian, and Mr. Bohac could not only establish material facts critical for Mr. Weinberger, but could potentially drive resolution of this case," (Doc. 33-9 at ¶ 28; Doc. 33-10 at ¶ 19). Such conclusory assertions do not justify further discovery or delayed disposition of Datamaster's motion for summary judgment.

         II. ...


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