Contractor Management Services LLC v. Para Incorporated et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Contractor Management Services LLC,
Plaintiff,
v.
Para Incorporated, et al.,
Defendants.
No. CV-25-01645-PHX-DWL
ORDER
This is a lawsuit between two “direct competitors,” Contractor Management
Services, LLC d/b/a Openforce (“Openforce”) and Para, Inc. d/b/a GigSafe (“GigSafe”),
in the contractor management software industry. (Doc. 1 ¶ 3.) In broad strokes, Openforce
alleges that GigSafe and its CEO, Defendant David Pickerell, “feigned interest in a
potential corporate transaction” in 2023, which resulted in the parties executing a non-
disclosure agreement and then meeting in Arizona to exchange various categories of
sensitive business information, and that GigSafe and Pickerell then “hacked into
Openforce’s systems, pilfered Openforce’s trade secrets, and used that information to steal
Openforce’s customers.” (Id. ¶¶ 1-3.) Based on those allegations, Openforce asserts
claims against Pickerell and/or GigSafe for (1) misappropriation of trade secrets under the
federal Defend Trade Secrets Act (“DTSA”); (2) misappropriation of trade secrets under
the Arizona Uniform Trade Secrets Act (“AUTSA”); (3) tortious interference with
contract; (4) tortious interference with business expectancy; (5) fraudulent
misrepresentation; (6) fraudulent inducement of the non-disclosure agreement; (7) breach
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 1 of 56

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of the non-disclosure agreement; (8) unfair competition; and (9) unjust enrichment. (Id.
¶¶ 47-123.)
Now pending before the Court are GigSafe’s and Pickerell’s motions to dismiss.
(Docs. 12, 13.) Those motions are fully briefed (Docs. 15, 16, 25, 26), and no party
requested oral argument. For the reasons that follow, each motion is granted in part and
denied in part.
BACKGROUND
I. Relevant Factual Allegations
The following relevant factual allegations are taken from the complaint (Doc. 1) and
the mutual non-disclosure agreement (hereinafter, “MNDA”) (Doc. 1-1).
A. The Parties
“Openforce is a Nevada limited liability company with its principal place of
business in Scottsdale, Arizona.” (Doc. 1 ¶ 8.) Openforce is “an industry leader in
contractor management software that helps contracting companies manage their
independent contractor vendor relationships and comply with labor regulations and assists
independent contractors with managing their businesses.” (Id. at 1.)
“Para is a Delaware corporation with . . . its principal place of business in San
Francisco, California. It currently operates under the trade name GigSafe.” (Id. ¶ 9.)
Pickerell “is a citizen of the State of Texas.” (Id. ¶ 10.) Pickerell is the “founder
and CEO” of “Para, now known as GigSafe.” (Id. ¶ 1.)
B. Openforce’s Software And Trade Secrets
“For over twenty years, Openforce has offered software-enabled solutions that serve
contracting companies utilizing independent contractor workforces and independent
contractors.” (Id. ¶ 13.) Openforce’s platform “covers all aspects of independent
contractor management, including onboarding, regulatory compliance, risk management,
rate negotiation, insurance, invoicing and settlement processing.” (Id.)
“In its software deployment process, Openforce develops with its clients a workflow
‘blueprint’ and offers each of its clients a customizable Workflow Designer. This
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 2 of 56

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
proprietary software tool allows companies to tailor their processes for on-boarding (or
‘enrolling’) new independent contractors.” (Id. ¶ 14.) “These workflows and the materials
contained in them (often called a blueprint) are a critical component of Openforce’s
offerings.” (Id.)
Openforce’s “customer workflows go hand-in-hand with Openforce’s Contractor
Management Platform, Manage (formerly IC Manage). Through Manage, Openforce’s
customers can streamline key aspects of their relationship with their independent
contractors in ways that Openforce has fine-tuned over decades.” (Id. ¶ 15.)
“Openforce has spent decades and invested many millions of dollars into the
research and development of its software systems, including Manage, the Workflow
Designer, and related enrollment offerings,” and Openforce continuously works to
“improve its offerings.” (Id. ¶ 16.) As a result, Openforce has received several industry
awards. (Id.)
“Openforce’s continued success . . . depends on the intellectual property underlying
its platform, which Openforce goes to great lengths to protect.” (Id. ¶ 17.) That intellectual
property includes Openforce’s “Trade Secrets,” which “span a wide variety of operations
and business activity.” (Id.) Those “Trade Secrets,” as defined in the complaint, include:
[1] customer preferences and requirements for enrolling independent
contractors in their systems, which manifest in customers’ tailored
enrollment workflows that meet their own individual needs; . . . [2] the
product that Openforce makes available to its customers, rendered in Manage
and Openforce’s other systems as, among other things, workflows containing
the necessary steps that legitimate independent contractors take to enroll to
do business with one of Openforce’s customers[;] . . . [3] customer-specific
pricing; [4] the customer’s terms of engagement; [5] customer onboarding
requirements; [6] workflow-development records, processes, and
procedures; [7] strategies for insurance and regulatory compliance regarding
the independent-contractor relationship; [8] process checks for verifying
enrollees’ identities and background information; [9] company/contractor
agreements; [10] contractor/Openforce agreements; [11] independent
contractor decision documentation; [12] insurance plan structures and their
underlying forms; [13] contractor payment processes and forms; . . . [14]
state-by-state variations regarding the above[;] . . . [15] Openforce’s best
practices and strategies for working with independent contractors,
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 3 of 56

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
manifested throughout the Manage software, which includes specific
processes for regulatory compliance, onboarding, recruiting, and benefits[;]
. . . [16] the technological information that enable Openforce’s industry-
leading platforms, including functionalities, schematics, and diagrams of
Openforce’s software systems, including (a) Workflow Designer, as well as
the resulting selection and arrangement of workflows it makes available to
its customers, (b) Manage, and (c) Openforce’s tailored and non-public
administrative interfaces available only to clients with the necessary login
credentials to access them[;] . . . [and] [17] the trial and error (both positive
and negative) that Openforce undertook to create these trade secrets. All of
these trade secret and confidential information described in this paragraph
(collectively, the “Trade Secrets”) are related to products or services that
Openforce uses in, or intends to use in, interstate or foreign commerce . . .
including Workflow Designer and Manage.
(Id., brackets added.)
“Openforce’s Trade Secrets derive considerable value from not being publicly
known outside of Openforce,” and “[t]hey derive independent economic value, actual and
potential, from not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from their disclosure or use.” (Id.
¶ 18.) To that end, “Openforce takes reasonable steps to protect its Trade Secrets from
disclosure,” including by, among other things, “limit[ing] access to the Trade Secrets
through actions and procedures designed to prevent any unauthorized use or disclosure.”
(Id. ¶¶ 19-20.) For example, “[w]hen disclosing any Trade Secrets to third parties like
customers and their independent contractors, Openforce requires these third parties to
execute agreements with strict provisions preventing any unauthorized use or disclosure of
any Openforce Trade Secrets,” and “Openforce uses a unique, customer-specific activation
code that Openforce provides to each of its customers to restrict the ability of a real
independent contractor to access” Openforce’s systems. (Id. ¶ 22.)
C. GigSafe And GigSafe’s Plan
In 2020, Pickerell started Para, which “advertised an app for gig-economy workers,
like delivery drivers, that purported to provide price transparency and a one-stop shop for
managing work they performed for gig-economy companies like DoorDash and Uber.”
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 4 of 56

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Id. ¶¶ 2, 23.) According to the complaint, “Para’s app suffered from a major problem—it
depended on Para unlawfully exploiting data from these gig-economy companies,” which
led to steps taken by companies like DoorDash and Uber to “halt Para’s unlawful actions.”
(Id. ¶¶ 2, 23.) As a result, Para and Pickerell “g[ave] up on this particular business model”
and instead “hatch[ed] a new conspiracy: rebrand Para as GigSafe, hack into Openforce’s
systems, steal its trade secrets and confidential information, and build a copycat platform
to lure away Openforce’s customers.” (Id. ¶ 2.)
“Given Openforce’s role as an industry leader in the contractor management space
(an industry adjacent to the one occupied by DoorDash and Uber), Openforce was soon in
Para’s crosshairs.” (Id. ¶ 24.) In June 2022, “Defendants put their plan into action . . .
when Para employee Jimmy Thompson created an Openforce account posing as an
independent contractor . . . with the intention of infiltrating Openforce’s system, so that
they could learn how Openforce operates and create a competing company.” (Id.)
“The plan did not get far at first” because “Openforce restricts access to its on-
boarding and enrollment platform . . . by limiting access to the enrollment platform to those
with a customer-specific activation code.” (Id. ¶ 25.) “Use of these codes and access to
these systems is authorized only by actual independent contractors seeking work with
Openforce’s customers,” and “[u]sing activation codes to access particularized workflows
of any customer for any other purpose . . . is forbidden by an end user license agreement.”
(Id.)
Next, in April 2023, Para and Pickerell, in furtherance of their alleged plan, “first
got in touch with Openforce” at “the Express Carrier’s Association conference.” (Id. ¶ 26.)
“Unaware of Para’s problematic past and its ploy” to steal Openforce’s trade secrets,
“Openforce stayed in touch with Para throughout that summer.” (Id.)
D. The In-Person Arizona Meeting And The MNDA
Sometime in 2023, and “[i]n pursuit of this scheme, . . . Para and [Pickerell] feigned
interest in a potential corporate transaction with Openforce.” (Id. ¶ 3.) In order “[t]o solicit
Openforce’s confidential information, [Pickerell] claimed that Para needed substantive,
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 5 of 56

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
detailed information about Openforce’s business model, competitive strategies, and clients
to better evaluate the contemplated Openforce-Para business transaction.” (Id.)
Ultimately, “Openforce . . . arranged an in-person meeting in October 2023 [in
Arizona] with Openforce’s CEO, Chairman of the Board, and CTO to discuss next steps
for a potential corporate transaction.” (Id. ¶ 26.) “Before the October 2023 meeting,
Openforce required Para to execute the MNDA, as is its practice.” (Id. ¶ 27.) The MNDA
was executed by both parties on September 7, 2023. (Doc. 1-1 at 3.)1 The MNDA
“provided that sensitive, confidential information would be shared by both parties to allow
them to evaluate a potential business relationship.” (Doc. 1 ¶ 27.)
The MNDA contains several provisions relevant to the parties’ dismissal arguments,
excerpted here:
Definition of Confidential Information. Each party (the “Disclosing
Party”) may during the term of this Agreement disclose, or permit access to,
to the other party (the “Receiving Party”), certain non-public information,
including, but not limited to, information regarding: systems, personal
information, agreements, data, payment information, patents and patent
applications; trade secrets; mask works, ideas, concepts, knowhow,
techniques, sketches, drawings, works of authorship, models, inventions,
processes, algorithms, software (in both source code and object code
formats), and formulas related to each of the parties (and their respective
affiliates), including information regarding experiments, developments,
designs, specifications, customer lists, product plans, investors (or potential
investors), employees, agents, contractual relationships, forecasts, sales,
merchandising, and marketing plans; business and personal information of
employees, customers, vendors, and independent contractors, including but
not limited to personal identification information, payment information, and
contracting information; and regardless of whether so marked or confirmed,
any unannounced or non-public products or services of the Disclosing Party
(including such products or services themselves), and including without
limitation business models, methodologies, customer lists and financial
information (collectively, “Confidential Information”). With respect to
Confidential Information disclosed orally or in intangible format, the
Receiving Party shall treat all such orally disclosed Confidential Information
as confirmed Confidential Information.
1 Pickerell did not sign on behalf of Para—instead, the Para signatory was Robert
Fierro, Para’s chief revenue officer. (Doc. 1-1 at 3.)
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 6 of 56

- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Doc. 1-1 at 2 § 1(a).)
Protection. Except as expressly permitted by this Agreement, the Receiving
Party, and any of its affiliates, parents, subsidiaries, and their respective
employees, vendors, agents, officers, directors, and owners shall not disclose
the Confidential Information of the Disclosing Party and shall not use the
Confidential Information of the Disclosing Party for any purpose other than
expressly permitted by the Disclosing Party. Such prohibited uses of the
Confidential Information include but are not limited to: (i) to compete
directly or indirectly with the Disclosing Party; (ii) to develop products or
services competitive with those of the Disclosing Party; or (iii) to assist any
third party in any of the foregoing.
(Id. § 1(b).)
Return of Confidential Information. At the discretion and direction of the
Disclosing Party, the Receiving Party shall return, destroy, or erase all
Confidential Information of the Disclosing Party in tangible form within 15
business days after the expiration or termination of this Agreement, and
confirm in writing to the Disclosing Party the completion of such directive.
(Id. § 1(d).)
Non-Solicitation. The Parties agree to support and protect each other’s
efforts in performance of this Agreement by refraining during the life of this
Agreement plus six months from any direct or indirect contact or solicitation
of any customers, employees or opportunities introduced to one Party by the
other Party. This explicitly excludes any customers or opportunities the
Parties have previously engaged with or been presented and any employees
responding to a publicly posted job opening so long as such employee was
not solicited.
(Id. at 3 § 2.)
Choice of Law and Jurisdiction. This Agreement shall be subject to the
laws of the State of Arizona, without reference to its conflicts of laws
principles. Any dispute arising under this Agreement shall be subject to the
exclusive jurisdiction of the State and Federal Courts located in Phoenix,
Arizona, and the parties hereby submit to the personal jurisdiction of such
courts.
(Id. § 5.)
“To date, no party has terminated the MNDA; it remains in effect.” (Doc. 1 ¶ 30.)
Following the execution of the MNDA, “[d]iscussions between Openforce and Para
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 7 of 56

- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
continued,” and “[d]uring September 2023, Openforce’s Chief Product Officer and VP of
Marketing and Partnerships met with [Pickerell] and Jessica DiGulio, a Para operations
employee. Openforce shared an overview of Openforce’s products and services.” (Id.
¶ 31.)
Finally, in October 2023, “[a]t an in-person meeting in Arizona between both sides’
leadership, including [Pickerell], . . . Openforce shared information about its business
pursuant to [the MNDA], including its pricing strategy, operating mechanics, insurance
offerings, three-legged stool strategy, strategies to mitigate labor misclassification risks
when retaining independent contractors, and revenue models.” (Id. ¶ 3. See also id. ¶ 32
[“At this meeting, and pursuant to the MNDA, Openforce shared detailed and confidential
business plans, growth strategies, insurance information, and its revenue models.”].)
According to the complaint, “these talks were only a front for [Pickerell’s] and
Para’s ploy—to learn enough about Openforce so they could take Openforce’s trade secrets
to compete with Openforce through their rebranded venture, GigSafe.” (Id. ¶ 3.) Indeed,
the complaint alleges that Openforce later learned that “[w]hile Para was meeting with
Openforce, [Pickerell] had already started rebranding Para as GigSafe” as early as
September 2023. (Id. ¶ 3, 34.) And “less than two weeks” after the parties met in person,
“Para told Openforce that it had no interest in proceeding.” (Id. ¶ 33.)
E. The Subsequent Hacking Of Openforce’s Systems
“Defendants’ scheme did not end” with the October 2023 in-person meeting. (Id.
¶ 4.) Following that meeting, Pickerell and GigSafe “implemented the next step in their
scheme, in which GigSafe employees created accounts with Openforce by masquerading
as independent contractor drivers seeking work from Openforce’s clients—just as they had
attempted with [Thompson] in June of 2022.” (Id. ¶ 36.) But unlike Thompson’s
unsuccessful attempt in 2022, “this time was different, because [Pickerell] was now armed
with information learned from Openforce under the MNDA. As a result, . . . GigSafe and
[Pickerell] knew how to get these employees ‘inside’ Openforce’s systems by posing as
independent contractors and procuring customer-specific activation codes. Once inside,
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 8 of 56

- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the GigSafe actors could access Openforce’s Trade Secrets in the form of its customer-
specific workflows and, by implication, the underlying Workflow Designer that Openforce
uses to build them.” (Id.)
“Over the next year and a half . . ., GigSafe and [Pickerell] misused the activation
codes for at least ten Openforce customers.” (Id.) And “[s]ince November 2023, and
continuing to this day, GigSafe’s personnel have lied about their identities and intentions
to access Openforce’s software system, which has allowed Defendants to misappropriate
more of Openforce’s proprietary, customer-specific enrollment and workflow information,
insurance offerings, payment plans, system mechanics, and client admin interface designs.
Openforce’s internal logs reflect that at least six different GigSafe employees on over 20
separate occasions improperly accessed Openforce’s platform by misrepresenting
themselves as would-be independent contractor drivers for at least ten Openforce clients.”
(Id. ¶ 4.)2
The complaint proceeds to outline examples of GigSafe employees hacking into
Openforce’s systems by posing as independent contractors. (Id. ¶¶ 37-38.) “None of
the[se] GigSafe employees . . . ever performed the courier services, retail merchandising
services, supply chain management services, or other services as independent contractors
for Customers A-J through Openforce’s platform.” (Id. ¶ 39.) “Instead,” those employees
“purposefully misrepresented their identities and intentions, enrolling to improperly
access, learn about, and then misuse Openforce’s Trade Secrets to design a copycat
competing system and provide similar offerings.” (Id.) “Shortly after learning that
GigSafe employees were improperly using and accessing its systems, Openforce
terminated access to its systems for all known accounts of GigSafe personnel.” (Id. ¶ 40.)
F. GigSafe’s Poaching Of Openforce’s Customers
Ultimately, “GigSafe used the ill-gotten information from their hacking into
Customer A-J’s workflows in an attempt to poach them—in violation of the MNDA’s
2 Those ten clients are identified in the complaint by pseudonyms: Customers A-J.
(Id. ¶ 5.)
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 9 of 56

- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
customer non-solicitation provision.” (Id. ¶ 41.) In March 2024, GigSafe’s Thompson
“sent a letter to a potential Openforce customer, ‘Customer K,’ which attacked Openforce
by name and said that the potential use of Openforce would likely ‘cost[] you a king’s
ransom to pay and insure your drivers.’” (Id. ¶ 42.) The complaint alleges that “this letter
to Customer K is only one example of similar letters that GigSafe sent to actual or potential
Openforce’s customers.” (Id. ¶ 43.) At least Customers B, F, and H have terminated their
relationships with Openforce and are now identified on GigSafe’s website as GigSafe
customers. (Id. ¶¶ 44-46.)
II. Procedural Background
On May 14, 2025, Openforce initiated this action. (Doc. 1.)
On June 30, 2025, Pickerell filed his motion to dismiss. (Doc. 12.) That motion is
now fully briefed. (Docs. 15, 26.) On the same day, GigSafe filed its motion to dismiss.
(Doc. 13.) That motion is now fully briefed. (Docs. 16, 25.)
DISCUSSION
I. Pickerell’s Motion to Dismiss
The complaint asserts seven causes of action against Pickerell: (1) trade secret
misappropriation under the DTSA; (2) trade secret misappropriation under the AUTSA;
(3) tortious interference with contract; (4) tortious interference with business expectancy;
(5) fraudulent inducement; (6) unfair competition; and (7) unjust enrichment. (Doc. 1.)
Pickerell moves under Rule 12(b)(2) to dismiss all claims against him for lack of personal
jurisdiction. (Doc. 12.)3
A. Legal Standard
A defendant may move to dismiss for lack of personal jurisdiction. Fed. R. Civ. P.
12(b)(2). “In opposing a defendant’s motion to dismiss for lack of personal jurisdiction,
the plaintiff bears the burden of establishing that jurisdiction is proper.” Ranza v. Nike,
Inc., 793 F.3d 1059, 1068 (9th Cir. 2015) (citation omitted). “Where, as here, the
3 Pickerell also incorporates by reference the dismissal arguments in GigSafe’s
motion to dismiss. (Doc. 12 at 16.) The Court addresses those arguments below in its
discussion of GigSafe’s motion.
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 10 of 56

- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
defendant’s motion is based on written materials rather than an evidentiary hearing, the
plaintiff need only make a prima facie showing of jurisdictional facts to withstand the
motion to dismiss.” Id. (cleaned up).
When ruling on a motion to dismiss for lack of personal jurisdiction,
“uncontroverted allegations must be taken as true, and conflicts between parties over
statements contained in affidavits must be resolved in the plaintiff’s favor,” but a “plaintiff
may not simply rest on the bare allegations of the complaint.” Id. (cleaned up). The Court
may also consider “deposition testimony and other evidence” outside of the pleadings to
determine whether it has personal jurisdiction. Omeluk v. Langsten Slip & Batbyggeri A/S,
52 F.3d 267, 268 (9th Cir. 1995). See also Lee v. Plex, Inc., 773 F. Supp. 3d 755, 769
(N.D. Cal. 2025) (“The Court may also consider declarations and other evidence outside
the pleadings to determine whether it has personal jurisdiction.”) (cleaned up); 1 Gensler,
Federal Rules of Civil Procedure, Rules and Commentary, Rule 12 (2025) (“The plaintiff
must supply specific facts in support of personal jurisdiction.”).
“Federal courts ordinarily follow state law in determining the bounds of their
jurisdiction over persons.” Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1141 (9th Cir. 2017)
(quoting Daimler AG v. Bauman, 571 U.S. 117, 125 (2014)). “Arizona law permits the
exercise of personal jurisdiction to the extent permitted under the United States
Constitution.” Id. (citing Ariz. R. Civ. P. 4.2(a).) Accordingly, whether the Court has
personal jurisdiction over Pickerell “is subject to the terms of the Due Process Clause of
the Fourteenth Amendment.” Id.
“Constitutional due process requires that defendants have certain minimum contacts
with a forum state such that the maintenance of the suit does not offend traditional notions
of fair play and substantial justice.” Id. (cleaned up). Minimum contacts exist “if the
defendant has continuous and systematic general business contacts with a forum state
(general jurisdiction), or if the defendant has sufficient contacts arising from or related to
specific transactions or activities in the forum state (specific jurisdiction).” Id. at 1142
(cleaned up).
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 11 of 56

- 12 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Openforce does not contend that Pickerell is subject to general personal jurisdiction
in Arizona. Thus, the Court must apply the Ninth Circuit’s three-prong test to determine
whether Pickerell has sufficient contacts with Arizona to be subject to specific personal
jurisdiction: “(1) The non-resident must purposefully direct his activities or consummate
some transaction with the forum or resident thereof; or perform some act by which he
purposefully avails himself of the privilege of conducting activities in the forum, thereby
invoking the benefits and protections of its laws; (2) the claim must be one which arises
out of or relates to the defendant’s forum-related activities; and (3) the exercise of
jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.”
Id. (citation omitted). “The plaintiff bears the burden of satisfying the first two prongs of
the test.” Id. (citation omitted). “If the plaintiff succeeds in satisfying both of the first two
prongs, the burden then shifts to the defendant to ‘present a compelling case’ that the
exercise of jurisdiction would not be reasonable.” Id. (citation omitted).
B. The Parties’ Arguments
Pickerell argues that he is “a Texas resident who attended a single meeting in
Arizona with [Openforce]” and that “the only conduct in the Complaint that is tied to
Arizona is [that] single meeting with Openforce that occurred in October 2023.” (Doc. 12
at 1.) Pickerell argues that “Openforce attempts to create personal jurisdiction by baldly
alleging that some sort of plan to access [Openforce’s] systems was conceived in
connection with that single 2023 meeting,” but “Openforce does not allege that Pickerell
used any of the information allegedly shared at the meeting to access Openforce’s
systems.” (Id.) Pickerell further argues that “allegations arising from a single meeting
would be insufficient to establish that [he] either purposefully directed his activities at
Arizona or that the claims against him arise out of contacts with the state.” (Id.) Pickerell
further argues that Openforce’s “attempts to establish jurisdiction through” the MNDA and
Openforce’s “own contacts with Arizona” must fail because “Pickerell is not a party to the”
MNDA, and “a plaintiff’s own contacts with the forum-state are irrelevant to the issue of
personal jurisdiction over a defendant.” (Id. at 2.) With respect to the MNDA, Pickerell
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 12 of 56

- 13 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
emphasizes that “Openforce does not allege that the MNDA (which was not signed by
Pickerell) was executed in Arizona. Nor does it allege that the misrepresentations
purportedly made by Defendants to fraudulently induce Openforce to enter into the MDNA
were made in Arizona.” (Id. at 8.) With respect to the meeting in Arizona, Pickerell
emphasizes that “Openforce does not allege any facts tying the confidential and trade secret
information supposedly shared at the Arizona meeting to Pickerell’s conduct following the
meeting.” (Id. at 8-9.) Pickerell argues that “Defendants’ alleged conduct relates to the
claimed unauthorized access of Openforce’s system by GigSafe employees through
customer accounts with customer-specific activation codes,” but “[t]he Complaint makes
no connection between the use of [those] customer activation codes and the Arizona
meeting.” (Id. at 9.) Pickerell further argues that none of the causes of action asserted
against him arise out of or relate to his contacts with Arizona because “all of the supposedly
inappropriate access to Openforce’s systems occurred independent of [the in-person]
meeting and no allegations even suggest that information at that meeting was used to gain
the access to the systems in question.” (Id. at 10.) Finally, Pickerell argues that “even if
the Court finds sufficient minimum contacts . . . , the exercise of personal jurisdiction
offends traditional notions of fair play and substantial justice” because the seven factors
used to evaluate reasonableness by the Ninth Circuit all weigh against the exercise of
personal jurisdiction. (Id. at 13-16.)
In response, Openforce argues that “[d]espite [Pickerell’s] best attempts to pull apart
the breach of the [MNDA] and his (and GigSafe’s) improper access to Openforce’s
systems, the two are entwined” because “[b]oth forms of misconduct are part of the same
overarching scheme to misappropriate Openforce’s trade secrets and confidential
information to build a copycat company.” (Doc. 15 at 1.) Openforce emphasizes that
during the October 2023 meeting in Arizona, “Openforce shared with [Pickerell] and his
team key confidential and trade secret information, including its pricing strategy, operating
mechanics, insurance offerings, three-legged stool strategy, strategies to mitigate labor
misclassification risks, and revenue models” and that the complaint “alleges that GigSafe’s
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 13 of 56

- 14 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
misappropriation and wrongful conduct included information disclosed at this meeting and
under the MNDA.” (Id. at 3, emphasis added.) Applying the purposeful-direction test for
specific personal jurisdiction, Openforce argues that Pickerell purposefully directed his
activities at Arizona by “physically travel[ing] to Arizona to meet with Openforce under
false pretenses of a corporate transaction to further his plot to misappropriate Openforce
information,” and that Pickerell “did so under the guise of a contract with an Arizona forum
selection clause into which he caused GigSafe to enter.” (Id. at 6.) Openforce next argues
that Pickerell’s actions were expressly aimed at Arizona because (1) he “caused [GigSafe]
to enter into the MNDA and include in that NDA an Arizona forum selection clause”; (2)
the “in-person meeting at Openforce’s headquarters in Scottsdale, Arizona” is “central to
the events giving rise to this dispute” and is “the linchpin of the misconduct alleged in the
Complaint”; (3) he “caused GigSafe personnel to fraudulently enroll as independent
contractors for Openforce customers who have substantial ties to Arizona”;4 (4) he
personally “engaged in the cyberespionage” by posing as a contractor on Openforce’s
systems “just hours before Openforce filed the Complaint”; and (5) he “solicited business
in Arizona” by building “GigSafe’s platform to compete for [Openforce’s] customer base,
including targeting business with independent contractors based in Arizona.” (Id. at 7-11).
Openforce also argues the effects of Pickerell’s actions were foreseeable in Arizona
because “[b]ut for [Pickerell’s] contacts with Arizona, he would not have caused Openforce
economic injury in Arizona.” (Id. at 11-12.) Last, Openforce argues that under the Ninth
Circuit’s seven-factor test for reasonableness, Pickerell has failed to meet his burden. (Id.
at 13-16.)
In reply, Pickerell largely reiterates his arguments from his motion. Among other
things, Pickerell argues that “[a]ttendance at a single meeting in the forum with an Arizona-
based company is insufficient to establish express aiming.” (Doc. 26 at 4.) He also argues
that Openforce’s contention in its response that the October 2023 Arizona meeting was
4 In support of this argument, Openforce provides a declaration from its Chief
Technology Officer that purports to illustrate the Arizona connections of several of its
customers. (Doc. 15-1.)
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 14 of 56

- 15 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“central to the events giving rise to the dispute” (Doc. 15 at 7) is contrary to “what
Openforce asserted in its response to the GigSafe Motion to Dismiss” (Doc. 26 at 5).
Pickerell reiterates that the in-person meeting in Arizona could have happened anywhere
and “does not establish that Defendants were expressly aiming their conduct at Arizona.”
(Id.) Pickerell also argues that Openforce cannot rely on the Arizona contacts of its own
customers to support the exercise of personal jurisdiction and, at any rate, Openforce’s
customers’ contacts with Arizona are “limited.” (Id. at 7-10.) Pickerell also reiterates that
“Openforce again fails to explain how Defendants misappropriated information obtained
from the meeting [in Arizona] or how information learned at the meeting allowed Pickerell
to access Openforce’s platform” and that “Openforce admits that information learned at
the meeting is unrelated to the alleged hacking supporting the tort claims.” (Id. at 11.)
C. Analysis
Because Openforce’s claims against Pickerell are all tort or tort-like causes of
action,5 both parties assume that the purposeful-direction test—sometimes known as the
Calder effects test—governs the analysis here. (Doc. 12 at 6; Doc. 15 at 6; Doc. 26 at 3.)
This assumption is understandable, as courts “generally apply the purposeful availment test
when the underlying claims arise from a contract, and the purposeful direction test when
they arise from alleged tortious conduct.” Morrill, 873 F.3d at 1142. Nevertheless, the
Ninth Circuit in Freestream Aircraft (Bermuda) Ltd. v. Aero L. Grp., 905 F.3d 597 (9th
Cir. 2018), clarified that a district court’s application of the Calder effects test is
“misplaced . . . for conduct that takes place inside the forum state.” Id. at 603-04. Although
“a purposeful direction analysis naturally applies in suits sounding in tort where the tort
was committed outside the forum state,” Ninth Circuit “jurisprudence makes clear that
[Paccar Int’l, Inc. v. Com. Bank of Kuwait, S.A.K., 757 F.2d 1058 (9th Cir. 1985)], not
Calder, is the proper starting place where an intentional tort is committed within the forum
state.” Id. at 605-06. Under Paccar, there exists a “well-settled understanding that the
5 Count Nine is a claim for unjust enrichment, and “unjust enrichment is an equitable
claim for relief and not a tort.” Healixa Inc. v. Int’l Monetary, 2025 WL 4058862, *5 (C.D.
Cal. 2025).
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 15 of 56

- 16 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
commission of a tort within the forum state usually supports the exercise of personal
jurisdiction.” Freestream Aircraft, 905 F.3d at 606. Thus, district courts within the Ninth
Circuit, relying on Freestream Aircraft, have declined to apply the Calder effects test
where even “part of the alleged tort occurred in” the forum state. Martensen v. Koch, 942
F. Supp. 2d 983, 994 (N.D. Cal. 2013), on reconsideration in part, 2013 WL 4734000 (N.D.
Cal. 2013). See also Williams v. Pac. Sunwear of Cal. LLC, 2024 WL 4626541, *4 (D.
Ariz. 2024) (“Defendant skips a crucial step in its jurisdictional analysis. As will be
explained below, the purposeful direction test only applies to tortious conduct that occurs
outside the forum state. It does not govern tortious conduct that takes place inside the
forum.”); Climax Portble Mach. Tools, Inc. v. Trawema GmbH, 2020 WL 1304487, *3 (D.
Or. 2020) (“Given the Ninth Circuit’s guidance in Freestream Aircraft, the threshold
question is whether part of the alleged tortious conduct occurred in [the forum state]. If
so, the Paccar purposeful availment analysis is appropriate, and not the effects test under
Calder.”).
Under Paccar, if Pickerell is alleged to have committed an intentional tort (or part
of the alleged tortious conduct) during the October 2023 in-person meeting in Arizona,
then “the first two prongs of the minimum contacts test are satisfied” and the Court can
move to the fair-play-and-substantial-justice prong. Freestream Aircraft, 905 F.3d at 603-
04 (cleaned up). See also Williams, 2024 WL 4626541 at *5 (“Absent extraordinary
circumstances such as those present in Morrill, if a defendant engages in tortious conduct
inside the forum state, then the first two prongs of the minimum contacts test are
automatically met. In such instances, there is no need to conduct a purposeful direction
analysis. A court would proceed straight to the third prong, under which an objecting
defendant must affirmatively demonstrate that the maintenance of jurisdiction offends fair
play and substantial justice.”).6
6 The “extraordinary circumstances” in Morrill were that the defendants there were
“required . . . to conduct activity in Arizona” because of litigation obligations and “thus
were not in the forum state of their own volition.” Williams, 2024 WL 4626541 at *5
(citation omitted). “By contrast,” where a defendant “voluntarily travel[s]” to the forum
state, Paccar applies. Id. (citation omitted). Here, there is no allegation that Pickerell’s
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 16 of 56

- 17 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
At least some of Openforce’s claims against Pickerell are founded on the allegation
that Pickerell improperly obtained trade secrets and other confidential information from
Openforce during the October 2023 in-person meeting in Arizona. For example, the
complaint alleges that “[a]t an in-person meeting between both sides’ leadership, including
[Pickerell], in October 2023, Openforce shared information about its business pursuant to
a non-disclosure agreement, including its price strategy, operating mechanics, insurance
offerings, three-legged stool strategy, strategies to mitigate labor misclassification risks
when retaining independent contractors, and revenue models.” (Doc. 1 ¶ 3. See also id.
¶ 32 [“[A]t an in-person meeting on October 19, 2023 in Scottsdale, Arizona . . . Openforce
shared detailed and confidential business plans, growth strategies, insurance information,
and its revenue models.”].) Several of the categories of information disclosed at that
meeting overlap with the categories of “Trade Secrets” defined in paragraph 17 of the
complaint. (Id. ¶ 17 [defining “Trade Secrets” as, among other things, “customer-specific
pricing,” “strategies for insurance and regulatory compliance,” “insurance plan structures
and their underlying forms,” and “Openforce’s best practices and strategies for working
with independent contractors”].) And the categories of information disclosed at the in-
person meeting also overlap with the allegedly misappropriated “Trade Secrets” underlying
Counts One and Two. (See, e.g., id. ¶ 48 [Count One: defining Trade Secrets as, among
other things, “documents that reveal Openforce’s . . . on-boarding processes, business
operations, and compliance strategies; and information related to Openforce’s insurance
plans, compliance strategies, and payroll offerings”]; id. ¶ 58 [Count Two: same].) The
complaint also alleges that “[t]he events and omissions in [Arizona] further include . . .
Defendants’ actions to . . . misappropriate the confidential and trade secret information of
Openforce . . . including by soliciting this information at the October 2023 meeting with
Openforce that took place in [Arizona].” (Id. ¶ 12, emphasis added.) Likewise, the unfair
competition claim in Count Eight is premised in part on the allegation that “Pickerell . . .
improperly accessed and misused Openforce’s confidential information in the ways
decision to attend the in-person meeting in Arizona was involuntary.
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 17 of 56

- 18 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
described above and incorporated here, including by . . . entering into the MNDA in order
to obtain Openforce’s Trade Secrets and confidential information, despite having no
intention of a potential corporate transaction with Openforce; . . . retaining those materials,
and . . . using them in direct competition with Openforce.” (Doc. 1 ¶ 113.) Because the
complaint alleges that Openforce shared confidential information during the in-person
meeting in Arizona “pursuant to” the MNDA (id. ¶ 3), it is plausible to infer that Count
Eight is also premised, at least in part, on Pickerell’s accessing of Openforce’s confidential
information during the in-person meeting in Arizona.
Pickerell disagrees that the complaint alleges that he misused whatever confidential
information and trade secrets he may have obtained during the October 2023 meeting,
arguing that “Openforce does not allege any facts tying the confidential and trade secret
information supposedly shared at the Arizona meeting to Pickerell’s conduct following the
meeting. Defendants’ alleged conduct relates to the claimed unauthorized access of
Openforce’s system by GigSafe employees through customer accounts with customer-
specific activation codes. . . . The Complaint makes no connection between the use of
customer activation codes and the Arizona meeting.” (Doc. 12 at 8-9.) But Pickerell’s
reading of the complaint is too narrow. Although the complaint alleges that “information
learned from Openforce” during the in-person meeting gave Pickerell and GigSafe the
know-how “to get [GigSafe’s] employees ‘inside’ Openforce’s systems by posing as
independent contractors and procuring customer-specific activation codes” (Doc. 1 ¶ 36),
the complaint also alleges that the trade secret and other confidential information obtained
by Pickerell during the in-person meeting was itself improperly accessed and therefore
misappropriated. This reading of the complaint is confirmed by Openforce’s briefing,
which—contrary to Pickerell and GigSafe’s protestations that Openforce has somehow
abandoned its initially pleaded theory of liability (see, e.g., Doc. 26 at 5)—explains that
these are two separate, albeit “entwined” examples of accessing Openforce’s information
as part of an “overarching scheme to misappropriate Openforce’s trade secrets.” (Doc. 15
at 1; Doc. 16 at 1, 7, 17.)
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 18 of 56

- 19 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The complaint also alleges that Pickerell acquired Openforce’s trade secrets through
improper means in Arizona. For example, the complaint alleges that the “talks” at the “in-
person meeting in Arizona” were “only a front for [Pickerell’s] and Para’s ploy—to learn
enough about Openforce so they could take Openforce’s trade secrets to compete with
Openforce through their rebranded venture, GigSafe.” (Doc. 1 ¶ 3.) The complaint also
alleges that GigSafe and Pickerell “feigned interest in a potential corporate transaction with
Openforce” in order to obtain this information during the in-person meeting. (Id.)
Both the DTSA and AUTSA define “misappropriation” as including the acquisition
of a trade secret by “improper means.” 18 U.S.C. § 1839(5); A.R.S. § 44-401(2). Both
statutes further define “improper means” as “includ[ing] theft, bribery, misrepresentation,
breach or inducement of a breach of a duty to maintain secrecy, or espionage through
electronic or other means.” 18 U.S.C. § 1939(6)(A); A.R.S. § 44-401(1). Here, the
complaint plausibly alleges that Pickerell acquired Openforce’s trade secrets and other
confidential information during the in-person meeting in Arizona through improper
means—i.e., by feigning interest in a corporate transaction with Openforce with the intent
to use Openforce’s trade secrets to compete with Openforce. Therefore, the complaint
plausibly alleges that at least part of the allegedly tortious conduct occurred in the forum,
and thus the Paccar test (and not the Calder effects test) applies.
Given this backdrop, the case for exercising personal jurisdiction over Pickerell in
Arizona with respect to Counts One, Two, and Eight is, if anything, even stronger than the
case for exercising personal jurisdiction that was present in Climax Portble Machine Tools.
There, the plaintiff alleged that two former employees (“Individual Defendants”) and their
new employer (“Trawema”) “misappropriated Plaintiff’s confidential information and used
it to the detriment of Plaintiff.” 2020 WL 1304487 at *3. “Specifically, Plaintiff allege[d]
that the Individual Defendants, while still employed by Plaintiff, downloaded confidential
files from Plaintiff’s computer server in Oregon and otherwise obtained confidential design
files from Plaintiff’s headquarters in Oregon so that Trawema could manufacture copies of
two of Plaintiff’s products and sell them in competition with Plaintiff.” Id. Notably, it
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 19 of 56

- 20 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
does not appear that the Individual Defendants actually set foot in Oregon—instead, while
in Germany, they accessed servers they knew to be present in Oregon. Id. at *4.
Nevertheless, the district court concluded that the Individual Defendants were subject to
personal jurisdiction in Oregon in light of Freestream Aircraft and Paccar: “The question
for jurisdiction purposes . . . is whether that alleged act [of obtaining the trade secrets]
constituted committing a tort ‘in Oregon’ or the tort of misappropriation in Germany, with
an effect in Oregon. The Court finds that the better analysis is that it was a tort that was at
least in part committed in Oregon . . . .” Id. The court noted that “[o]ther courts also have
found that acquisition of trade secrets from a server in the forum state with knowledge of
its location, or other intentional and knowing improper use of a computer server in the
forum state, creates enough minimum contacts to support personal jurisdiction, without
analyzing the effects test.” Id. at *5 (citations omitted). Here, of course, the allegation is
not merely that Pickerell improperly obtained trade secrets from a server that was located
in Arizona—indeed, there are no allegations regarding where Openforce’s servers are
located. Instead, Pickerell is alleged to have physically traveled to Arizona for the purpose
of improperly obtaining those trade secrets in-person. The Court is hard-pressed to see
how such conduct would not qualify, at least in part, as “the commission of a tort within a
forum state.” Freestream Aircraft, 905 F.3d at 606.
Other cases support that the jurisdictional analysis turns on whether the defendant
acquired the trade secrets in the forum state through improper means. For example, in
Gold Medal Prods. Co. v. Bell Flavors & Fragrances, Inc., 2017 WL 1365798 (S.D. Ohio
2017), the plaintiff, Gold Medal, argued that the district court could “assert jurisdiction
over Bell Flavors because its employee, Sunderhaus, worked for Gold Medal in Ohio,
Sunderhaus obtained Gold Medal’s trade secrets in Ohio, and Bell Flavors instructed
Sundershaus to use or disclose those trade secrets for its benefit knowing that Gold Medal
would suffer tortious injury in Ohio.” Id. at *6. The court disagreed, in part because “Gold
Medal ha[d] not alleged that Sunderhaus took wrongful acts in Ohio which Bell Flavors
could have ratified. Sunderhaus obtained Gold Medal’s trade secrets lawfully during the
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 20 of 56

- 21 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
normal course of his employment for the company.” Id. at *6. The court drew an analogy
to Drayton Enters., LLC v. Dunker, 142 F. Supp. 2d 1177 (D.N.D. 2001), where the district
court declined to exercise personal jurisdiction over a company that had hired a former
employee of the plaintiff “because [the former employee] had obtained the trade secret
information by legitimate means in North Dakota before moving out of the state.” Gold
Medal Prods., 2017 WL 1365798 at *7. Ultimately, the Gold Medal court held that it could
not exercise personal jurisdiction over Bell Flavors in part because “Sunderhaus acquired
the trade secret information in Ohio by legitimate means and only is alleged to have taken
wrongful acts outside of the forum state more than one year later.” Id. at *8. See also
Mitek Corp. v. Diedrich, 2018 WL 5078385, *6 (N.D. Ill. 2018) (“Although Diedrich
acquired Mitek’s trade secrets in Illinois and Arizona, he did so in the course of a legitimate
employment relationship and pursuant to his job duties. He later (allegedly)
misappropriated those trade secrets to AFCO’s benefit by soliciting a DSP amplifier from
EVR, but Mitek does not claim that either party to that conversation was in Illinois at the
time. These alleged facts accordingly do not give rise to specific jurisdiction over AFCO
in Illinois.”) (cleaned up).
The pattern that emerges from this caselaw is that if a plaintiff alleges that a
defendant acquired trade secret information from the plaintiff through improper means
while physically present in the forum state, the first two minimum-contacts factors are met
under the Paccar framework. Such is the case here.
It is of no moment that the aforementioned cases involved former employees who
likely spent more time than just a single meeting in the forum. Although Pickerell seems
to suggest that attendance at a single meeting in the forum cannot establish specific
personal jurisdiction (Doc. 12 at 1), Pickerell cites no authority in support of this supposed
rule. If the tort itself (or at least a portion of the tort itself) was committed during a single
meeting in the forum, that is sufficient to support to exercise of personal jurisdiction.
Freestream Aircraft, 905 F.3d at 600 (holding that the defendant was subject to personal
jurisdiction in Nevada based on a statement he made during a single trip to Nevada to attend
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 21 of 56

- 22 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a conference: “A defendant who travels to Nevada and commits an intentional tort there
can be sued in that state, absent circumstances that would make such a suit unreasonable.”).
Cf. RNS Servicing, LLC v. Spirit Constr. Servs., Inc., 2018 WL 3729326, *5 n.5 (N.D. Ill.
2018) (“Tak contends that a single meeting is insufficient to establish personal jurisdiction,
but this leaves out the crux of the allegation that Tak intentionally came to Illinois and
made false representations to an Illinois-based company. There is no bright-line numerical
threshold of contacts necessary for personal jurisdiction; the question is simply whether
the claims arise out of the defendant’s contact with the forum state.”); Kingsley Cap.
Mgmt., LLC v. Sly, 820 F. Supp. 2d 1011, 1017-18 (D. Ariz. 2011) (“Without admitting
any of these accusations, Cunningham says they fall short of activities purposefully
directed at Arizona. He attended a single meeting at which Kingsley was an invited guest,
and that meeting happened to be in Arizona. But Cunningham views the personal
jurisdiction test too narrowly. Kingsley claims that the Oxygen investment was a scam
perpetrated by various persons acting together, including Cunningham. Kingsley infers
that the March 2008 investor meeting in Arizona was used, at least in part, to convince
Kingsley to invest in a scam.”).
Pickerell also seeks to draw parallels between this case and E3 Innovation Inc. v.
DCL Techs. Inc., 2021 WL 5741442 (D. Ariz. 2021), but E3 Innovation is distinguishable
for several reasons. There, the Court applied the “effects test” in determining whether to
exercise personal jurisdiction over three independent contractors of the plaintiffs who
allegedly misappropriated the plaintiffs’ confidential information. Id. at *6-7. In assessing
the second element of the effects test—express aiming—the Court, quoting Walden v.
Fiore, 571 U.S. 277, 285 (2014), was “guided by the principle that it ‘must focus on the
defendant’s contacts with the forum state, not the defendant’s contacts with a resident of
the forum.’” E3 Innovation, 2021 WL 5741442 at *7. The E3 Innovation plaintiffs raised
four theories of “express aiming,” only one of which involved physical presence in
Arizona. Id. at *8. As for that in-forum meeting, the Court noted that “Plaintiffs do not
assert that [defendant’s] dinner meeting . . . was related to, or in any way furthered, the tort
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 22 of 56

- 23 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of misappropriation of confidential information” and thus determined that the meeting was
“not relevant to the ‘express aiming’ analysis.” Id. Here, in contrast, Openforce expressly
alleges that the in-person meeting in Arizona was related to, and furthered, the
misappropriation of Openforce’s trade secrets. More broadly, it does not appear that any
part of the tortious conduct in E3 Innovation actually occurred in Arizona. Unlike in
Climax Portble Machine Tools, the record in E3 Innovation reflected that “the alleged acts
of misappropriation involved email accounts and cloud-based servers not located in
Arizona.” E3 Innovation, 2021 WL 5741442 at *9. These differences explain why the
effects test was applicable in E3 Innovation but is inapplicable here.
Pickerell also places significant emphasis on language from E3 Innovation which,
relying on Walden, stated:
As in Walden, none of Blum’s challenged conduct (i.e., misappropriation of
confidential information) has anything to do with Arizona itself. The
misappropriation may have harmed an Arizona resident, but it would be error
to impute E3’s forum connections to Blum. That E3 is an Arizona business
does not, on its own, establish that Blum expressly aimed his alleged conduct
at Arizona because it does not relate to Blum’s conduct. In the same vein, it
is irrelevant for “express aiming” purposes that Blum’s contractor
relationship was negotiated in Arizona, that the confidential information was
developed in Arizona and used to fulfill customer orders through Arizona
channels, or that Blum received access to information via permissions
granted by E3’s Arizona office. This is because those facts are inextricably
bound up with E3’s location in Arizona. If, for example, E3 had been
headquartered in California, none of these asserted contacts would have
occurred in Arizona: the contractor relationship would have been negotiated
in California, the confidential information would have been developed in
California, and so on. None of these considerations suggest that Blum
expressly aimed his misappropriation tort at Arizona, as opposed to whatever
state happened to surround E3’s headquarters.
Id. But again, the critical distinction here is that Pickerell is alleged to have reached out to
Openforce to set up a meeting, which was held in Arizona, with the express purpose of
improperly accessing Openforce’s trade secrets and confidential information during that
meeting. Thus, under Paccar, the first two elements of the minimum-contacts test are
satisfied.
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 23 of 56

- 24 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The inquiry does not end there, as the Court must still analyze whether the exercise
of personal jurisdiction over Pickerell with respect to Counts One, Two, and Eight would
comport with fair play and substantial justice, i.e. whether it would be reasonable. “In
determining reasonableness, seven factors are considered: (1) the extent of a defendant’s
purposeful interjection; (2) the burden on the defendant in defending in the forum; (3) the
extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest
in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6)
the importance of the forum to the plaintiff’s interest in convenient and effective relief; and
(7) the existence of an alternative forum.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d
1007, 1021 (9th Cir. 2002). “As no single factor is dispositive, a court must balance all
seven.” Id.
As for the first and fourth factors, Pickerell essentially reiterates his arguments that
his actions were not directed at Arizona and that Openforce’s claims do not arise out of his
Arizona contacts. But the Court has already determined that the complaint plausibly
alleges that Pickerell attended the in-person meeting in Arizona with the purpose of
improperly accessing Openforce’s trade secrets and confidential information during that
meeting. That is a significant purposeful interjection, and Arizona has an interest in
adjudicating this dispute. The first and fourth factors thus weigh in Openforce’s favor.
As for the second factor, the Court acknowledges that there is a burden on Pickerell,
a Texas resident, to travel to Arizona. But as Openforce notes, it’s hard to imagine how
Pickerell can “credibly argue that litigating in Arizona imposes an undue burden when, as
the CEO and key witness of GigSafe, he will be involved in the litigation there regardless.”
(Doc. 15 at 14.) The second factor is therefore, at best, neutral.
As for the third factor, Pickerell doesn’t allege that any conflict exists between the
laws of Arizona and Texas as to the claims at issue. To the contrary, he appears to argue
under the seventh factor that Texas “recognizes similar causes of action.” (Doc. 12 at 15.)
Moreover, Pickerell’s motion to dismiss incorporates by reference GigSafe’s motion to
dismiss, and GigSafe’s motion applies Arizona law (not Texas law) to the various tort
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 24 of 56

- 25 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
claims asserted here (Doc. 13). This factor therefore tips in Openforce’s favor.
The fifth Factor, which “depends primarily on where the witnesses and the evidence
are likely to be located,” “is no longer weighed heavily given the modern advances in
communication and transportation.” Freestream Aircraft, 905 F.3d at 609 (cleaned up).
At any rate, Openforce correctly notes that “Openforce’s breach of contract claim against
GigSafe will be in Arizona because of the forum selection clause,” as will any “tort claims
against GigSafe attendant to the MNDA claims,” and it therefore “makes little sense to
require parallel proceedings in two different states given the overlapping facts, parties, and
core legal issues.” (Doc. 15 at 15.) Therefore, this factor either tips slightly in Openforce’s
favor or is at best neutral.
As for the sixth factor, it is generally not given much weight, Freestream Aircraft,
905 F.3d at 609, so at best it tips slightly in favor of Openforce.
As for the seventh factor, Openforce “bear[s] the burden of proving the
unavailability of an alternative forum,” id., and has not met that burden on this record.
Thus, the seventh factor tips in favor of Pickerell.
On balance, Pickerell—who bears the ultimate burden on reasonableness—has not
presented a compelling case that the exercise of personal jurisdiction over him with respect
to Counts One, Two, and Eight would be unreasonable.
That leaves Openforce’s claims against Pickerell in Counts Three (tortious
interference with contract), Four (tortious interference with business expectancy), Six
(fraudulent inducement), and Nine (unjust enrichment). Under Ninth Circuit law, “[i]f
personal jurisdiction exists over one claim, but not others, the district court may exercise
pendent personal jurisdiction over any remaining claims that arise out of the same
‘common nucleus of operative facts’ as the claim for which jurisdiction exists.” Picot v.
Weston, 780 F.3d 1206, 1211 (9th Cir. 2015) (citation omitted). See generally Action
Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180-81 (9th Cir. 2004) (“Many
of our sister circuits have adopted the doctrine of ‘pendent personal jurisdiction.’ Under
this doctrine, a court may assert pendent personal jurisdiction over a defendant with respect
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 25 of 56

- 26 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to a claim for which there is no independent basis of personal jurisdiction so long as it
arises out of a common nucleus of operative facts with a claim in the same suit over which
the court does have personal jurisdiction. . . . When a defendant must appear in a forum to
defend against one claim, it is often reasonable to compel that defendant to answer other
claims in the same suit arising out of a common nucleus of operative facts. We believe
that judicial economy, avoidance of piecemeal litigation, and overall convenience of the
parties is best served by adopting this doctrine.”). Here, Counts Three, Four, Six, and Nine
arise of the same common nucleus of operative fact as Counts One, Two, and Eight. The
Court thus chooses, in its discretion, to exercise personal jurisdiction over Pickerell with
respect to those claims, too. Cf. Gigacloud Tech., Inc. v. Linon Home Decor Prods., Inc.,
2025 WL 656653, *6 (C.D. Cal. 2025) (exercising pendent personal jurisdiction “over
Defendants as to Plaintiffs’ breach of contract, tortious interference of contract, tortious
interference with economic advantage, and violation of California Unfair Competition Law
claims” because “the Court has personal jurisdiction over Moving Defendants as to
Plaintiffs’ trade secrets misappropriation claim” and “Plaintiffs’ trade secrets
misappropriation claim and Plaintiff’s remaining claims . . . arise out of a common nucleus
of operative fact”).
Accordingly, Pickerell’s motion to dismiss all counts against him for lack of
personal jurisdiction is denied.7 Given this outcome, Openforce’s request for jurisdictional
discovery (Doc. 15 at 16-17) is denied as moot.
II. GigSafe’s Motion To Dismiss
GigSafe moves to “dismiss all Counts of the Complaint for failure to state a claim”
pursuant to Rule 12(b)(6). (Doc. 13 at 1.) GigSafe further moves to “dismiss all claims
against GigSafe for lack of personal jurisdiction if the Court dismisses the breach of
contract claim (Count VII).” (Id.) As noted, Pickerell joins in all of GigSafe’s Rule
7 The parties have extensively briefed whether the MNDA and/or Openforce’s
customers’ contacts with Arizona support the assertion of personal jurisdiction over
Pickerell. It is unnecessary to reach those arguments in light of the conclusions set forth
above. Likewise, it is unnecessary to address Pickerell’s objections to Openforce’s
response evidence. (Doc. 26 at 2-3.)
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 26 of 56

- 27 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12(b)(6) dismissal arguments.
A. Legal Standard
Under Rule 12(b)(6), “to survive a motion to dismiss, a party must allege sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In re
Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (cleaned up). “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 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]ll well-pleaded allegations of
material fact in the complaint are accepted as true and are construed in the light most
favorable to the non-moving party.” Id. at 1144-45 (citation omitted). However, the Court
need not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678-
80. Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. at 678. The court also may dismiss due
to “a lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th
Cir. 2015) (citation omitted).
B. Breach Of The MNDA (Count Seven)
Count Seven of the complaint alleges that GigSafe breached the MNDA in three
ways: (1) by soliciting Openforce’s customers in violation of § 2 of the MNDA (id. ¶ 102);
(2) by “using Openforce’s Trade Secrets and Confidential Information (as that term is
defined in [§ 1(a) of] the MNDA) in a manner not for the benefit of Openforce,” in violation
of § 1(b) (id. ¶ 103); and (3) “by failing to return Openforce’s Trade Secrets and
Confidential Information (as that term is defined in the MNDA) in compliance with
[§ 1(d)]” (id. ¶ 104).
1. Governing Law
The MNDA provides: “This Agreement shall be subject to the laws of the State of
Arizona, without reference to its conflicts of laws principles.” (Doc. 1-1 at 3 § 5.) Under
Arizona law, “[t]o state a breach of contract claim, a plaintiff must allege that (1) a contract
existed, (2) it was breached, and (3) the breach resulted in damages.” Steinberger v. McVey
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 27 of 56

- 28 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ex rel. Cnty. of Maricopa, 318 P.3d 419, 434 (Ariz. Ct. App. 2014).
2. The Parties’ Arguments
GigSafe argues that “Openforce alleges three separate breaches” of the MNDA—
namely, “(1) ‘failing to return Openforce’s Trade Secrets and Confidential Information’
(Section 1(d)), (2) improperly soliciting Openforce customers (Section 2), and (3) ‘using
Openforce’s Trade Secrets and Confidential Information . . . in a manner not for the benefit
of Openforce’ (Section 1(b))”—and that “[n]one of these theories is plausibly alleged.”
(Doc. 13 at 2.) As for § 1(d), GigSafe argues that the “obligation to ‘return, destroy, or
erase’ information only applies (1) ‘[a]t the discretion and direction of the Disclosing
Party,’ and (2) upon ‘expiration or termination of [the MNDA].’” (Id.) Because Openforce
has not alleged that it “exercised its discretion or issued a direction to GigSafe to return,
destroy, or erase information” (id. at 2-3), and because the complaint alleges that no party
has terminated the MNDA (Doc. 1 ¶ 30), GigSafe argues that “Openforce has failed to
allege the necessary conditions precedent to a breach of Section 1(d)” (Doc. 13 at 3). As
for § 2, GigSafe argues that it only bars solicitation of customers “introduced” to GigSafe
by Openforce, and Openforce has “failed to allege that ‘customers’ GigSafe purportedly
solicited were introduced by Openforce.” (Id.) GigSafe also argues that § 2 excludes
customers which “the Parties have previously engaged with or been presented” and that
“[t]he Complaint fails to allege that the customers do not fall within this exclusion.” (Id.)
As for § 1(b), GigSafe argues that “assuming that this breach allegation refers to use of
information provided under the MNDA to access the Openforce systems,” the complaint
fails to identify “what exactly this information is,” and “[i]n any event, none of th[e]
nontechnical information” addressed in paragraphs 31 and 32 of the complaint “is the type
of information that would have anything to do with how to access or ‘hack’ the Openforce
systems.” (Id. at 3-4.) Moreover, GigSafe argues that to the extent Openforce’s claims
rely on GigSafe’s use of customer activation codes to access Openforce’s systems, “[t]here
are no allegations that Openforce disclosed information about the need for customer-
specific activation codes or that such information qualifies as confidential under the
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 28 of 56

- 29 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MNDA”—“[i]ndeed, the publicly available portion of Openforce’s system clearly explains
how independent contractors access the system, including through the use of activation
codes.” (Id. at 4.)8 In a nutshell, GigSafe argues that the challenged conduct is the misuse
of Openforce’s confidential information obtained through GigSafe’s hacking of
Openforce’s systems, not the use of confidential information that Openforce “disclose[d],
or permit[ted] access to” per the MNDA. (Id. at 5.)9
In response, Openforce argues that “[w]hile the Complaint plausibly pleads . . .
multiple breaches of the MNDA, the Court need only find one to be plausibly alleged to
deny Defendants’ motion with respect to this claim.” (Doc. 16 at 6.) First, Openforce
argues that the complaint “plausibly alleges that GigSafe breached MNDA section 1(b),
which requires that the receiving party ‘not use the Confidential Information of the
Disclosing Party for any purpose other than expressly permitted by the Disclosing Party,’
including by using the Confidential Information ‘(i) to compete directly or indirectly with
the Disclosing Party’ and ‘(ii) to develop products or services competitive with those of
the Disclosing Party.’” (Id. at 6-7, quoting Doc. 1-1 at 2 § 1(b).) Citing paragraphs 3 and
42 of the complaint, Openforce argues that the complaint “alleges that GigSafe is a direct
competitor,” “that GigSafe sent a letter to prospective customers in which it held itself out
as a cheaper Openforce alternative,” and “that GigSafe used information obtained under
MNDA like ‘price strategy, operating mechanics, insurance offerings, three-legged stool
8 GigSafe appears to ask the Court to deem Openforce’s system webpages
incorporated by reference into the complaint. (Doc. 13 at 4 n.1.) The webpages cited by
GigSafe, however, do not appear in the complaint, so incorporation by reference would not
be proper. Nevertheless, on a Rule 12(b)(6) motion, “[a] court may . . . consider certain
materials,” including “matters of judicial notice—without converting the motion to dismiss
into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th
Cir. 2003). Under Federal Rule of Evidence 201(b), “[t]he court may judicially notice a
fact that is not subject to reasonable dispute” if it “can be accurately and readily determined
from sources whose accuracy cannot be reasonably questioned.” Accordingly, the Court
will take judicial notice of the two Openforce webpages cited by GigSafe. (Doc. 13 at 4
n.1.)
9 GigSafe also argues that “the MNDA does not use the language ‘in a manner not
for the benefit of’ either party in describing prohibited uses of Confidential Information.”
(Doc. 13 at 3.) The Court is just as “puzzl[ed]” as Openforce regarding this argument and
agrees with Openforce that the complaint doesn’t allege that the MNDA uses those exact
words. (Doc. 16 at 7.) This quibble does not affect the Court’s analysis, as the complaint
attaches—and the Court has reviewed—the MNDA in full.
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 29 of 56

- 30 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
strategy, strategies to mitigate labor classification risks when retaining independent
contractors, and revenue models.’” (Id. at 7.) Openforce argues that GigSafe’s motion
improperly “conflat[es] [GigSafe’s] misuse of information provided under the MNDA with
its other—related but distinct—course of wrongful conduct in improperly accessing
Openforce’s systems.” (Id.) Second, Openforce argues that the complaint plausibly alleges
a breach of § 2, prohibiting the solicitation of customers. (Id.) Openforce urges the Court
not to adopt “GigSafe’s narrow reading of the term ‘introduced’ at this stage” of the
proceedings. (Id. at 8.) And Openforce emphasizes paragraph 102 of the complaint, which
states: “GigSafe breached the MNDA’s provision barring ‘any direct or indirect contact or
solicitation of any customers . . . introduced to one Party by the other Party’ . . . [, and]
GigSafe has engaged in many affirmative solicitations of such customers.” (Doc. 1 ¶ 102,
emphasis added.)
In reply, GigSafe argues that “Openforce’s theories have shifted dramatically.”
(Doc. 25 at 1.) GigSafe contends that because Openforce now “concedes that receipt of
. . . non-technical information under the MNDA is untethered to the alleged ‘hacking’
described in the Complaint,” and because “the Complaint does not identify a separate
misuse of information received under the MNDA,” “[t]he Complaint . . . fails to link
‘information [GigSafe] learned during its October 2023 meeting’ (i.e., information
qualifying as ‘Confidential Information’ under the MNDA) with any actual ‘misuse’ under
that Agreement.” (Id.) As for § 1(d), GigSafe argues that “Openforce tacitly concedes”
that the alleged breach “is not adequately pleaded . . . because Openforce fails to address
this theory of breach in its Response.” (Id. at 2-3.) As for § 1(b), GigSafe argues that
“Openforce has now confirmed there were two separate courses of conduct: (1) learning
information in October 2023 (pursuant to the MNDA); and (2) learning information from
alleged hacking (not pursuant to the MNDA).” (Id. at 3.) From that premise, GigSafe
argues that there is an “absence of any allegations concerning the October 2023 information
actually being used for an improper purpose (e.g., to compete) as the Complaint’s only
allegation of ‘use’ was in relation to the hacking.” (Id.) As for § 2, GigSafe emphasizes
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 30 of 56

- 31 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that “[n]owhere in the Complaint does Openforce allege that the customers solicited were
not parties that GigSafe had previously solicited, engaged with or been presented prior to
entering into the MNDA,” such that GigSafe’s solicitation of customers would fall under
§ 2’s exclusionary language. (Id. at 4.) GigSafe reiterates its argument that none of the
customers it allegedly solicited were “introduced” by Openforce. (Id. at 5.)
3. Analysis
As explained below, Openforce has plausibly alleged breaches of §§ 1(b) and 2 of
the MNDA.10
a. Section 1(b)
Section 1(b) of the MNDA provides that “the Receiving Party” (here, GigSafe)
“shall not use the Confidential Information of the Disclosing Party” (here, Openforce) “for
any purpose other than expressly permitted by the Disclosing Party” and identifies various
examples of prohibited uses, including “(i) to compete directly or indirectly with the
Disclosing Party; [or] (ii) to develop products or services competitive with those of the
Disclosing Party.” (Doc. 1-1 at 2.) Section 1(a) broadly defines “Confidential
Information” as “certain non-public information, including, but not limited to, information
regarding: systems . . . trade secrets . . . processes . . . information regarding . . .
developments . . . customer lists . . . product plans . . . sales . . . marketing plans . . .
business models, methodologies, customer lists and financial information.” (Id.)
In paragraph 3 of the complaint, Openforce alleges that “[a]t an in-person meeting
in Arizona between both sides’ leadership, including [Pickerell], in October 2023,
Openforce shared information about its business pursuant to a non-disclosure agreement
[i.e., the MNDA], including its pricing strategy, operating mechanics, insurance offerings,
three-legged stool strategy, strategies to mitigate labor misclassification risks when
retaining independent contractors, and revenue models.” (Doc. 1 ¶ 3.) It is reasonable to
infer that at least some of this information alleged to have been shared at the in-person
10 This conclusion makes it unnecessary, at least at this stage of the case, to address
the validity of Openforce’s theory of breach premised on § 1(d) of the MNDA.
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 31 of 56

- 32 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
meeting qualifies as “Confidential Information” under § 1(a) of the MNDA, particularly
because paragraph 3 of the complaint alleges that all of this information was shared
“pursuant to” the MNDA. (Id., emphasis added.) Several other paragraphs of the
complaint further raise a plausible inference that “Confidential Information” (as that term
is defined in the MNDA) was shared at the Scottsdale meeting. (Id. ¶ 12 [alleging that
“trade secrets and other confidential information” was shared “pursuant to the MNDA at a
meeting in Scottsdale, Arizona”]; id. ¶ 32 [“[A]t an in-person meeting on October 19, 2023
in Scottsdale, Arizona . . . pursuant to the MNDA, Openforce shared detailed and
confidential business plans, growth strategies, insurance information, and its revenue
models.”].)
The critical question is whether the complaint alleges that the Confidential
Information obtained at that meeting pursuant to the MNDA was actually used by GigSafe
in violation of the MNDA. If the analysis were limited to paragraph 36 of the complaint,
the answer would likely be no. In paragraph 36, Openforce alleges that “Pickerell . . . now
armed with information learned from Openforce under the MNDA,” “knew how to get
[GigSafe’s] employees ‘inside’ Openforce’s systems by posing as independent contractors
and procuring customer-specific access codes.” (Doc. 1 ¶ 36.) As GigSafe notes, even if
the need for an activation code was shared with GigSafe by Openforce at the in-person
meeting, the use of those activation codes is publicly available information such that it
would not qualify as “Confidential Information” under § 1(a) of the MNDA, which
requires that the information be “non-public.”
But Openforce does not rely solely on paragraph 36 for its breach claim. In
paragraph 42, Openforce details a letter allegedly sent by GigSafe to one of Openforce’s
prospective customers urging the customer to consider GigSafe’s services over
Openforce’s because Openforce would “cost[] [the customer] a king’s ransom to pay and
insure [its] drivers.” (Doc. 1 ¶ 42.) True, one reading of this paragraph is that GigSafe
used information it obtained via hacking—not information obtained at the in-person
meeting—to send this letter. This reading appears to be supported by the preceding
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 32 of 56

- 33 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
paragraph, which states that “GigSafe used the ill-gotten information from their hacking
into Customer A-J’s workflows in an attempt to poach them—in violation of the MNDA’s
customer non-solicitation provision.” (Id. ¶ 41, emphasis added). GigSafe is correct that
if the information used by GigSafe to poach Openforce’s customers was only obtained via
hacking, that information would not constitute information “disclosed or provided by”
Openforce and would therefore not qualify as “Confidential Information” under the terms
of § 1(a) of the MNDA. Nevertheless, another plausible reading of the letter detailed in
paragraph 42 is that the information GigSafe used to poach the targeted customer (and
other customers) came from both the in-person meeting and the hacking. The complaint
alleges that information shared at the in-person meeting included “pricing strategy” and
“insurance offerings,” both of which are directly referenced in the letter detailed in
paragraph 42 of the complaint. Because at least one plausible reading of the complaint
supports a claim for breach of § 1(b), Count Seven is not subject to dismissal.
b. Section 2
Section 2 provides that “[t]he Parties agree to . . . refrain[] during the life of [the
MNDA] plus six months from any direct or indirect contact or solicitation of any
customers, employees or opportunities introduced to one party by the other Party.” (Doc.
1-1 at 3.)
Although “courts have granted motions to dismiss on contract claims where it is
clear from the unambiguous terms of the contract that the alleged conduct by the defendant
does not constitute a breach of contract,” Mieuli v. DeBartolo, 2001 WL 777447, *5 (N.D.
Cal. 2001), “[i]f a contract is ambiguous, it presents a question of fact inappropriate for
resolution on a motion to dismiss,” Hicks v. PGA Tour, Inc., 897 F.3d 1109, 1118 (9th Cir.
2018). Here, the MNDA is not clear as to what it means for one party to “introduce” the
other party to a customer. Although one plausible reading of the term “introduce” would
exclude customers that GigSafe obtained by hacking Openforce’s systems, Openforce’s
broader definition of “introduce” is plausible, too. One accepted definition of “introduce”
is “to bring to a knowledge of something” (Doc. 16 at 8, quoting Merriam-Webster’s
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 33 of 56

- 34 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
definition), and the complaint plausibly alleges that the poached customers were brought
to GigSafe’s knowledge by Openforce and its systems. Because the contractual language
does not unambiguously support GigSafe’s proffered interpretation, GigSafe is not entitled
to dismissal at this stage of the proceedings. See, e.g., Res. Recovery Corp. v. Inductance
Energy Corp., 2020 WL 6149844, *6 (D. Ariz. 2020) (denying motion to dismiss breach-
of-contract claim because “the presence of [contractual] ambiguity precludes dismissal at
this stage”); Raygarr LLC v. Emps. Mut. Cas. Co., 2018 WL 4207998, *4 (D. Ariz. 2018)
(“To the extent the underlying terms of the insurance policies at issue are ambiguous, the
Court declines to reach any conclusive interpretation at this stage of the proceedings. The
Court merely finds that Raygarr has stated a plausible claim for breach of contract. EMC’s
motion to dismiss Raygarr’s breach-of-contract claim will be denied.”).
GigSafe also argues that Openforce has failed to plausibly allege a breach of § 2
because “[t]he Complaint fails to allege that the customers do not fall within [§ 2’s]
exclusion.” (Doc. 13 at 3. See also Doc. 25 at 4.) The non-solicitation provision of § 2
“excludes any customers or opportunities the Parties have previously engaged with or been
presented and any employees responding to a publicly posted job opening so long as such
employee was not solicited.” (Doc. 1-1 at 3.) Openforce does not respond to this specific
argument.
The Court is unconvinced that Openforce’s failure to plead the inapplicability of the
exclusion in § 2 warrants dismissal at this stage. “While this defense may have merit at a
later stage, at the motion to dismiss stage the sole question is whether the complaint has
stated a plausible claim for breach of contract. The complaint need not anticipate and plead
around every possible affirmative defense.” Tresona Multimedia LLC v. Legg, 2015 WL
470228, *15 (D. Ariz. 2015). See also Golden State Equity Invs., Inc. v. All. Creative Grp.,
Inc., 2017 WL 1336842, *6 (S.D. Cal. 2017) (“Defendant argues that it owed no duty to
convert the shares requested in the Conversion Notice . . . [because] ‘the New Note clearly
states that Plaintiff cannot issue a conversion notice to Defendant if the amount of shares
contained in the conversion notice would put Plaintiff’s ownership interest in Defendant’s
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 34 of 56

- 35 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
outstanding stock over 9.99%.’ Defendant does not argue that conversion of the requested
shares would have resulted in Plaintiff obtaining an ownership interest exceeding 9.99%,
but rather, Defendant argues that Plaintiff must plead the conversion of the requested shares
would not have had such a result. The Court is unconvinced that dismissal is warranted on
that basis. Defendant’s argument is less an argument that it did not have a duty to perform
under the contract as much as it is an argument that Plaintiff must plead facts precluding
the existence of any potential defenses that Defendant might raise. However, ‘plaintiffs
need not anticipate and attempt to plead around all potential defenses.’”) (quoting Xechem,
Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004)).11
C. Misappropriation Of Trade Secrets (Counts One and Two)
In Count One, Openforce alleges that it “is the owner of Trade Secrets” that it “has
taken reasonable and extensive measures to keep secret”; that its “Trade Secrets derive
independent economic value from not being generally known to, and not being readily
ascertainable through proper means by, another person”; and that “[a]t no time did
Openforce consent to GigSafe’s or [Pickerell’s] taking, using, retaining, or disclosing the
Trade Secrets.” (Doc. 1 ¶¶ 48-51.) Openforce alleges that “Pickerell and GigSafe
misappropriated the Trade Secrets within the meaning of the DTSA.” (Id. ¶ 52-53.)
Openforce seeks damages and injunctive relief. (Id. ¶ 56.) Count Two is premised on
nearly identical allegations, and seeks identical relief, under the AUTSA. (Id. ¶¶ 57-66.)
1. The Parties’ Arguments
GigSafe argues that Counts One and Two “must be dismissed because Openforce
fails to identify the trade secrets with sufficient particularity.” (Doc. 13 at 5.) GigSafe
argues that “[a]lthough Openforce dedicates over a page of its Complaint to listing
Openforce’s ‘trade secrets and confidential information,’ Doc. 1 ¶ 17, length is not a
substitute for particularity.” (Doc. 13 at 6.) Referring to paragraph 17 of the complaint,
11 GigSafe also argues that if Count Seven is dismissed under Rule 12(b)(6),
Openforce’s remaining claims should be dismissed for lack of personal jurisdiction. (Doc.
13 at 16-17.) Because Count Seven is not being dismissed under Rule 12(b)(6), this
argument fails.
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 35 of 56

- 36 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GigSafe argues that “Openforce’s laundry list of ‘trade secrets and confidential
information’ is vague and non-exhaustive” because it uses language such as “span a wide
variety,” “including,” “include,” and “among other things.” (Id.) GigSafe further argues
that “Openforce makes no effort to explain which of the many items listed in paragraph 17
[of the complaint] constitute ‘trade secrets’ and which constitute merely ‘confidential
information.’” (Id.)
In response, Openforce argues that a complaint need not “set forth the exact trade
secrets which defendants have allegedly misappropriated” and that the “majority rule” is
“that complaints need only allege the trade secret in general terms or in general contours.”
(Doc. 16 at 9, citations and internal quotations omitted.) Openforce argues that the level
of detail in paragraph 17 “suffices at the pleading stage.” (Id. at 10.) Openforce further
argues that “[t]he cases on which GigSafe relies are distinct” because they either rely on
California’s trade secret statute or were decided at the summary judgment stage. (Id. at
10-11.) Openforce concludes that “[t]he law is clear that trade secrets need not—and
should not—be identified with particularity in the Complaint.” (Id. at 11.)
In reply, GigSafe states that it “did not argue that Openforce must plead the
equivalent of the Coca-Cola formula.” (Doc. 25 at 6.) “Rather, GigSafe faulted Openforce
for identifying nearly every aspect of its business as both trade-secret and confidential
information through broad, non-exhaustive descriptors . . . .” (Id.) GigSafe argues that the
authorities cited in its motion “establish[] that Openforce must distinguish trade secrets
from confidential information, refrain from relying on non-exhaustive categories of
information, and describe the trade secrets with sufficient detail to put GigSafe on notice
of the claims against it and which trade secrets it allegedly used.” (Id.)
2. Analysis
“A plaintiff seeking relief for misappropriation of trade secrets must identify the
trade secrets and carry the burden of showing that they exist.” Imax Corp. v. Cinema
Techs., Inc., 152 F.3d 1161, 1164 (9th Cir. 1998) (citation and internal quotation marks
omitted). However, at the pleading stage, “a plaintiff need not spell out the details of the
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 36 of 56

- 37 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
trade secret.” Arthur J. Gallagher & Co. v. Tarantino, 498 F. Supp. 3d 1155, 1171 (N.D.
Cal. 2020) (cleaned up). See also Quintara Biosciences, Inc. v. Ruifeng Biztech, Inc., 149
F.4th 1081, 1085 (9th Cir. 2025) (“[T]he federal DTSA does not require a plaintiff to
identify with particularity its alleged trade secrets from the start.”). Instead, “the basic test
is (1) whether something beyond general knowledge is being claimed and (2) whether there
is enough specificity to put the defendant on notice of what the theft is about.” Arthur J.
Gallagher & Co., 498 F. Supp. 3d at 1171. “[W]hether a DTSA plaintiff has identified
information that is sufficiently particular to constitute a trade secret—information that is
kept secret and derives value from not being generally known—is a question of fact. So
whether a plaintiff has sufficiently particularized a trade secret under DTSA is usually a
matter for summary judgment or trial.” Quintara Biosciences, 149 F.4th at 1085.
Under these standards, Openforce has met its burden at the pleading stage to identify
the trade secrets at issue. Paragraph 17 of the complaint defines “Trade Secrets” as follows:
Openforce’s trade secrets and confidential information span a wide variety
of operations and business activity, including customer preferences and
requirements for enrolling independent contractors in their systems, which
manifest in customers’ tailored enrollment workflows that meet their own
individual needs; these trade secrets and confidential information similarly
include the product that Openforce makes available to its customers,
rendered in Manage and Openforce’s other systems as, among other things,
workflows containing the necessary steps that legitimate independent
contractors take to enroll to do business with one of Openforce’s customers.
These trade secrets and confidential information further include: customer-
specific pricing; the customer’s terms of engagement; customer onboarding
requirements; workflow-development records, processes, and procedures;
strategies for insurance and regulatory compliance regarding the
independent-contractor relationship; process checks for verifying enrollees’
identifies and background information; company/contractor agreements;
contractor/Openforce agreements; independent contractor decision
documentation; insurance plan structures and their underlying forms;
contractor payment processes and forms; and state-by-state variations
regarding the above. These trade secrets and confidential information also
include Openforce’s best practices and strategies for working with
independent contractors, manifested throughout the Manage software, which
includes specific processes for regulatory compliance, onboarding,
recruiting, and benefits. Openforce’s trade secrets and confidential
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 37 of 56

- 38 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
information also include the technological information that enable
Openforce’s industry-leading platforms, including functionalities,
schematics, and diagrams of Openforce’s software systems, including (a)
Workflow Designer, as well as the resulting selection and arrangement of
workflows it makes available to its customers, (b) Manage, and (c)
Openforce’s tailored and non-public administrative interfaces available only
to clients with the necessary login credentials to access them. These trade
secrets and confidential information further include the trial and error (both
positive and negative) that Openforce undertook to create these trade secrets.
All of these trade secret and confidential information described in this
paragraph (collectively, the “Trade Secrets”) are related to products or
services that Openforce uses in, or intends to use in, interstate or foreign
commerce . . . including Workflow Designer and Manage.
(Doc. 1 ¶ 17.) Counts One and Two then reiterate that “Trade Secrets, as defined above
. . . relate in part to Openforce’s software system, including Manage, Openforce’s tailored
and non-public administrative interfaces available only to clients with the necessary login
credentials to access them, and the Workflow Designer and related offerings, which allows
companies both large and small to manage and on-board new independent contractors, as
well as the finished product created for any individual customer by the Workflow Designer
in the form of customers’ specific enrollment workflows (blueprints); associated
documents that reveal Openforce’s customers’ preferences, on-boarding processes,
business operations, and compliance strategies; and information related to Openforce’s
insurance plans, compliance strategies, and payroll offerings.” (Id. ¶¶ 48, 58.)
Considering that, at the pleading stage, Openforce need only state a claim with facial
plausibility, it’s hard to imagine how the detailed list in paragraph 17 could be deemed
deficient. At least some of the items included in Openforce’s definition of “Trade Secrets”
have been recognized by courts as meeting the standard for a trade secret. See, e.g.,
Graduation Sols. LLC v. Luya Enter. Inc., 2020 WL 9936697, *10 (C.D. Cal. 2020)
(“Courts consistently find that customer lists and customer information like Plaintiff’s
Business Information can qualify as trade secrets. . . . Business Information includ[ing]
the terms and pricing of sales contracts, customer sales histories and preferences, and other
market and vendor information . . . [is] adequately alleged . . . [as] a trade secret.”); Wyatt
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 38 of 56

- 39 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Tech. Corp. v. Malvern Instruments Inc., 2009 WL 2365647, *21 (C.D. Cal. 2009), aff’d,
526 F. App’x 761 (9th Cir. 2013) (rejecting defendant’s argument that “customer
preferences do not constitute a trade secret” under California’s Uniform Trade Secrets Act
because “[t]he compilation of this data could be considered a trade secret”).
The cases cited by GigSafe are either inapposite or support finding Openforce’s
allegations sufficient at the pleading stage. For example, in GlobalTranz Enters. Inc. v.
Shipper’s Choice Glob. LLC, 2017 WL 11609546 (D. Ariz. 2017), the court found that
“the complaint contains sufficient identification of the trade secrets . . . [t]hat is enough to
survive a motion to dismiss” where the “complaint allege[d] misappropriation of, among
other things, customer lists, profit margins, and the ‘needs, likes and dislikes of
customers.’” Id. at *4-5. The court stated that “[t]hese items have been explicitly
recognized by courts in Arizona as potentially qualifying as trade secrets.” Id. at *4. Here,
similarly, the alleged trade secrets include “customer preferences” and “customer-specific
pricing.” (Doc. 1 ¶ 17.) Moreover, quoting a case from the Northern District of Illinois,
the GlobalTranz court stated that “trade secrets need [only] be plead in ‘general terms’ and
claims ‘for lack of specificity’ will be dismissed only ‘in the most extreme cases.’”
GlobalTranz, 2017 WL 11609546 at *5 (quoting Mission Measurement Corp. v.
Blackbaud, Inc., 2016 WL 6277496, *5 (N.D. Ill. 2016)). Accordingly, GlobalTranz cuts
against GigSafe’s dismissal arguments here.
The same is true as to Alta Devices Inc. v. LG Elecs., Inc., 343 F. Supp. 3d 868 (N.D.
Cal. 2018). There, upon “[r]eviewing the [c]omplaint,” the court “f[ound] that Alta
allege[d] its trade secrets with sufficient particularity” where “Alta allege[d] the exact
technology in question.” Id. at 881. Here, similarly, Plaintiff has alleged the specific
technology—Workflow Designer and Manage—that was misappropriated. (Doc. 1 ¶¶ 17,
48, 58.) The Alta Devices court further “agree[d] with Alta that because Alta’s claims are
based on the Confidential Information exchanged pursuant to the 2011 NDA, LGE can
hardly claim it is unable to determine what trade secrets Alta gave LGE in 2011 and 2012.”
Alta Devices, 343 F. Supp. 3d at 881 (internal quotation and citation omitted). Here, too,
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 39 of 56

- 40 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
at least some of the information at issue is alleged to have been covered by the MNDA.
(See, e.g., Doc. 1 ¶¶ 3, 12; Doc. 1-1 at 2 § 1(a) [defining “Confidential Information” under
the MNDA to include “trade secrets”].) Finally, the Alta Devices court found that “Alta’s
allegations look more like the allegations in TMX Funding, Inc. v. Impero Tech. Inc., where
the court found sufficient plaintiffs’ trade secret allegations when plaintiff alleged nine
broad categories of trade secret information, including, among other things: ‘[i]ts software,
source codes, data, formulas, and other technical information developed as proprietary and
confidential products and services;’ ‘[i]ts business methods and marketing plans, such as
prospective customer and sales methods for attracting and retaining customers;’ and ‘[i]ts
product information, including but not limited to, cost, pricing, margin data and other
financial information.’” Alta Devices, 343 F. Supp. 3d at 882 (quoting TMX Funding, Inc.
v. Impero Tech. Inc., 2010 WL 2509979, *3 (N.D. Cal. 2010)). Openforce’s definition of
“Trade Secrets” in paragraph 17 is similar to, if not more specific than, the broad categories
found sufficient in TMX Funding.
GigSafe also cites Nitfy Techs., Inc. v. Mango Techs., Inc., 2024 WL 4230486 (S.D.
Cal. 2024), for the proposition that “labeling information as a trade secret or as confidential
information is precisely the type of threadbare recital of the elements of a cause of action
that is insufficient at the pleading stage.” (Doc. 13 at 6, cleaned up.) But in Nifty Techs.,
the court found that the plaintiff had “sufficiently identifie[d] what customer information
[was] being asserted as a trade secret” and had simply “fail[ed] to allege sufficient facts for
the [c]ourt to determine whether that information may be widely known in the industry
such that trade secret protection is defeated.” 2024 WL 4230486 at *7. Here, in contrast,
GigSafe doesn’t argue that the alleged Trade Secrets identified in paragraph 17 lack trade
secret protection because they are widely known in the industry.
GigSafe also argues that Openforce’s use of non-exhaustive language in paragraph
17 of the complaint—terms such as “span a wide variety,” “including,” “include,” and
“among other things”—warrants dismissal. (Doc. 13 at 6.) But even assuming that some
of GigSafe’s cited non-precedential cases support that line of attack, the Court respectfully
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 40 of 56

- 41 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
declines to follow them. Paragraph 17 identifies a sufficiently detailed and defined
universe of alleged trade secrets to state a plausible claim. At worst, the inclusion of the
challenged non-exhaustive terms may create some uncertainty as to whether there are
additional alleged trade secrets at issue, but such uncertainty can be resolved via the
discovery process and does not provide a basis for dismissing the otherwise-actionable
trade secrets claims in Counts One and Two.
GigSafe next faults the complaint for purportedly failing “to explain which of the
many items listed in paragraph 17 constitute ‘trade secrets’ and which constitute merely
‘confidential information.’” (Doc. 13 at 6.) But this argument is belied by a plain reading
of the complaint. Paragraph 17 of the complaint defines “[a]ll of the[] trade secrets and
confidential information described in this paragraph” as “Trade Secrets” (Doc. 1 ¶ 17), and
the complaint later alleges that “Trade Secrets, as defined above” (id. ¶¶ 48, 58) constitute
“trade secrets” under the DTSA and AUTSA (id. ¶¶ 52, 58). There is no confusion—all of
the items listed in paragraph 17 are alleged to be “Trade Secrets.”
Once again, the cases cited by GigSafe are unavailing. In Zoom Imaging Sols., Inc.
v Roe, 2019 WL 5862594 (E.D. Cal. 2019), the plaintiff identified “Confidential
Information” but “d[id] not claim . . . that all of this Confidential Information constitutes
trade secrets.” Id. at *4. “Rather, [the] plaintiff allege[d] that the trade secrets at issue are
part of this Confidential Information.” Id. (emphasis added). Accordingly, the court found
that “[b]oth the list of Confidential Information and the language in paragraph 86 fail to
distinguish between the Confidential Information and the trade secrets.” Id. at *5. But
Openforce’s complaint does not define “Confidential Information” as including a subset of
trade secrets, thereby making it impossible to discern which are trade secrets and which are
mere confidential information.
Finally, Paul Johnson Drywall Inc. v. Sterling Grp. LP, 2024 WL 1285629 (D. Ariz.
2024), is distinguishable because it was decided at the summary judgment stage. Also,
Paul Johnson Drywall, like Zoom Imaging, involved a plaintiff that failed to delineate
which subset of “Confidential Information” was a trade secret. Id. at *23. As stated above,
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 41 of 56

- 42 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that is not the case here.
In sum, at this early stage of the proceedings, Openforce has met its burden of
sufficiently pleading the identity of its trade secrets.
D. Fraudulent Misrepresentation And Inducement (Counts Five and Six)
In Count Five, Openforce asserts a claim for fraudulent misrepresentation premised
on GigSafe’s employees’ misrepresentations “that each would serve as independent
contractors for certain of Openforce’s clients”—representations the employees made to
hack into Openforce’s systems, acquire information, and “create a product that competes
with Openforce.” (Doc. 1 ¶¶ 82-89.) In Count Six, Openforce asserts a claim for
fraudulent inducement of the MNDA premised on Pickerell’s and GigSafe’s
misrepresentation that GigSafe “was interested in a potential corporate transaction” and
Pickerell’s and GigSafe’s “intentional hid[ing] [of] the existence of GigSafe from
Openforce.” (Id. ¶¶ 90-92.) The complaint alleges that Pickerell and GigSafe induced
Openforce to enter into the MNDA, “which was a necessary condition for . . . Openforce
to share sensitive, proprietary information with” Pickerell and GigSafe that they could use
to “compet[e] against Openforce.” (Id. ¶ 95.)
1. Legal Standard
Both sides agree that Counts Five and Six are subject to the heightened pleading
requirements of Federal Rule of Civil Procedure 9(b). (Doc. 13 at 7-12; Doc. 16 at 11-14.)
Rule 9(b) requires a plaintiff to “state with particularity the circumstances constituting
fraud or mistake.” Fed. R. Civ. P. 9(b). “To satisfy Rule 9(b), a pleading must identify
‘the who, what, when, where, and how of the misconduct charged,’ as well as what is false
or misleading about the purportedly fraudulent statement, and why it is false.” United
States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)
(cleaned up). See also Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393,
1401 (9th Cir. 1986) (“We have interpreted Rule 9(b) to mean that the pleader must state
the time, place, and specific content of the false representations as well as the identities of
the parties to the misrepresentation.”). “The circumstances constituting the alleged fraud
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 42 of 56

- 43 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[must] be specific enough to give defendants notice of the particular misconduct . . . so that
they can defend against the charge and not just deny that they have done anything wrong.”
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (cleaned up).
2. The Parties’ Arguments
GigSafe argues that the complaint fails to plead Counts Five and Six with the
particularity required by Rule 9(b). (Doc. 13 at 7.) Because, as discussed below, Count
Five is preempted by the AUTSA, the Court need only address the parties’ arguments
regarding Count Six.
GigSafe argues that Count Six fails to allege the “what” or “the content” of any
specific representation made to induce Openforce into executing the MNDA. (Id.)
GigSafe further argues that the complaint fails to allege who made the representation, as
well as who heard it. (Id. at 8-9.) GigSafe further argues that the complaint is “vague as
to when misrepresentations were made” and that “a five-month period” is insufficient to
satisfy the “when” requirement under Rule 9(b). (Id. at 9.) Next, GigSafe argues that
“Openforce makes no attempt whatsoever to allege where or how the statements were
made.” (Id.) Next, GigSafe argues that “Openforce has not plausibly pleaded that, to the
extent someone made a statement representing GigSafe’s interest in a corporate
transaction, that representation was false when made.” (Id.) Finally, GigSafe argues in a
footnote that “[a]ny attempt by Openforce to salvage Count VI by reframing it as a fraud
by nondisclosure theory should be rejected because Openforce has not pleaded that
GigSafe owed a duty to Openforce, as required for a fraud by nondisclosure claim under
Arizona law.” (Id. at 11 n.3.)
In response, Openforce argues that Count Six “centers on Defendants’ hiding its
intent to compete with Openforce, which induced Openforce to enter into the MNDA and
to share sensitive information with Defendants.” (Doc. 16 at 13.) Openforce clarifies that
“this claim involves concealment, which by definition is the absence of statements” and
“[r]equiring specific example statement is therefore impossible.” (Id.) Openforce also
contends that fraudulent concealment claims under Arizona law do not require a duty to
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 43 of 56

- 44 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
disclose. (Id.)
In reply, GigSafe argues that Openforce has “entirely abandoned” its fraudulent
inducement claim, “changing from misrepresentation-based inducement claim to an
unpleaded concealment claim.” (Doc. 25 at 7-8.) GigSafe argues that “[i]nducement, not
concealment, is the theory presented in the Complaint.” (Id. at 8.) GigSafe also argues
that “[e]ven if Openforce had pleaded a claim for fraudulent concealment . . . dismissal
would still be necessary” because “Openforce has not alleged any action by Defendants
that ‘intentionally prevented Openforce from finding the truth’” as required by Arizona
law. (Id., citation omitted).
3. Analysis
Count Six fails to meet the heightened pleading requirements of Rule 9(b). Even
accepting Openforce’s argument that Count Six, although labeled as a fraudulent
inducement claim, is really a fraudulent concealment claim, what Plaintiff appears to be
arguing is that Openforce intentionally concealed its intention to compete with Openforce
and the existence of GigSafe by making misrepresentations that it was interested in a
corporate transaction with Openforce. (See, e.g., Doc. 1 ¶ 92 [alleging that Pickerell and
GigSafe “misrepresented to Openforce that it was interested in a potential corporate
transaction”]; id. ¶ 93 [alleging that “[t]his misrepresentation was material”]; id. ¶ 94
[alleging that Pickerell and GigSafe “made this misrepresentation with knowledge of its
falsity”]; id. ¶ 95 [alleging that Pickerell and GigSafe “made this misrepresentation about
its intentions of competing against Openforce . . . with the intent of inducing Openforce to
enter into the MNDA”].)
To that end, Silving v. Wells Fargo Bank, NA, 800 F. Supp. 2d 1055 (D. Ariz. 2011),
is instructive. In Silving, “[a]lthough” the plaintiffs’ claim was “captioned ‘Fraudulent
Concealment,’” it “allege[d] that Defendants both ‘misrepresented and concealed.’” Id. at
1073. The court concluded this claim was subject to dismissal for two reasons. Id. at 1073-
74. First, because the claim alleged both misrepresentation and concealment, and because
Rule 9(b) requires that “a claim of false representation . . . be pled with particularity,” the
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 44 of 56

- 45 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
claim failed because it “d[id] not state the time and place of the alleged misrepresentations,
and the specific content is not present for all alleged statements.” Id. Second, turning to
“the allegations of ‘concealment,’” the court held that although the complaint “assert[ed]
that ‘Defendants prevented Plaintiffs from learning any of these truths,’” it “fail[ed] to
allege with particularity . . . how Defendants went about ‘preventing’ Plaintiffs.” Id. at
1074. At any rate, to the extent those allegations of concealment and prevention were
based on affirmative misrepresentations, the court held that “[a]ffirmative false statements
intended to conceal require particularity as discussed above.” Id.
Here, as in Silving, Openforce’s fraudulent inducement claim—which Openforce
now argues is actually a fraudulent concealment claim—rests on both affirmative
misrepresentations and concealment. And as in Silving, the “misrepresentation” portions
of Count Six fail to meet the heightened pleading requirements of Rule 9(b). As for the
“who” requirement, it is unclear whether Openforce is relying on representations made
only by Pickerell (and therefore by GigSafe by virtue of Pickerell’s position at the
company) or is also relying on representations made by other unnamed GigSafe employees.
The complaint also fails to allege to whom the representations were made. See, e.g., World
Health & Educ. Found. v. Carolina Cas. Ins. Co., 612 F. Supp. 2d 1089, 1096-97 (N.D.
Cal. 2009) (“[P]laintiff has not pled these claims with sufficient particularity. The
complaint does not identify who at CCIF made the alleged misrepresentations . . . or to
whom at WHEF the misrepresentations were made.”).
As for the “what” requirement, the complaint fails to allege the content of any
misrepresentations, and instead generally alleges that “Pickerell and Para misrepresented
to Openforce that it was interested in a potential corporate transaction.” (Doc. 1 ¶ 92. See
also id. ¶ 3 [“Para and [Pickerell] feigned interest in a potential corporate transaction with
Openforce in 2023.”].) These allegations fail to state what was said by Pickerell and/or
GigSafe.
As for the “when” requirement, the complaint vaguely alleges that GigSafe and
Pickerell “feigned interest in a potential corporate transaction with Openforce in 2023.”
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 45 of 56

- 46 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Id. ¶ 3, emphasis added.) The earliest alleged contact between the parties occurred in
April 2023. (Id. ¶ 26.) The MNDA was executed in September 2023. (Doc. 1-1 at 3.) As
GigSafe correctly observes, “Openforce cannot require GigSafe to guess when, in a five-
month period, GigSafe purportedly made a wrongful statement.” (Doc. 13 at 9.) See also
Southland Secs. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 372 (5th Cir. 2004)
(“Several courts have held that simply outlining a four-month window during which all of
the misrepresentations occurred does not satisfy the pleading standard of Rule 9(b).”)
(cleaned up); President Container Grp. II, LLC v. Systec Corp., 467 F. Supp. 3d 158, 165
(S.D.N.Y. 2020) (“[T]his time range of several months is insufficient to plead fraud with
particularity.”).
Nor does the complaint satisfy the “where” requirement. Although the complaint
alleges that Pickerell and GigSafe “first got in touch with Openforce” in April 2023 “at the
Express Carrier’s Association conference,” it doesn’t allege that any misrepresentations
occurred at that conference and instead alleges that the parties “stayed in touch . . .
throughout that summer.” (Doc. 1 ¶ 26.)
Last, the complaint fails to satisfy the “how” requirement. It’s unclear, for example,
whether the alleged misrepresentations were made orally, over email, or in some other
format.
Openforce’s purported recasting of Count Six as a concealment claim does not avoid
dismissal. As in Silving, the complaint fails to allege how Pickerell and GigSafe
“intentionally hid the existence of GigSafe from Openforce.” (Doc. 1 ¶ 92.) Even
assuming that a fraudulent concealment claim, unlike a nondisclosure claim, does not
require a duty, a fraudulent concealment claim nonetheless requires an “action by the
defendant that intentionally prevented the plaintiff from finding the truth.” Wells Fargo
Bank v. Ariz. Laborers, Teamsters & Cement Masons Loc. No. 395 Pension Tr. Fund, 38
P.3d 12, 34 (Ariz. 2002), as corrected (Apr. 9, 2002). The complaint does not contain any
allegations of what “action” GigSafe took to “intentionally prevent[]” Openforce “from
finding the truth.” Id. At best, a liberal reading of the complaint implies that GigSafe
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 46 of 56

- 47 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
concealed its true intentions and the existence of GigSafe by making affirmative
misrepresentations that GigSafe intended to enter a corporate transaction with Openforce.
But if that is Openforce’s theory, its fraudulent concealment claim still fails because, as
explained in Silving, “[a]ffirmative false statements intended to conceal require
particularity.” 800 F. Supp. 2d at 1074.
Accordingly, Count Six—whether based on affirmative misrepresentations,
fraudulent concealment, or some combination of both—fails to satisfy Rule 9(b)’s
heightened pleading requirements and is therefore dismissed.
E. AUTSA Preemption (Counts Three, Four, Five, Eight, And Nine)
GigSafe argues that Counts Three (tortious interference with contract), Four
(tortious interference with business expectancy), Five (fraudulent misrepresentation), Eight
(unfair competition), and Nine (unjust enrichment) are preempted by the AUTSA. (Doc.
13 at 12-14.)
1. Legal Standard
The AUTSA “creates an exclusive cause of action—and displaces conflicting
causes of action—for claims based on the misappropriation of trade secrets.” Orca
Commc’ns Unltd., LLC v. Noder, 337 P.3d 545, 546 (Ariz. 2014). However, the “AUTSA
does not displace common-law claims based on alleged misappropriation of confidential
information that is not a trade secret.” Id.
The AUTSA defines “Trade secret” as “information, including a formula, pattern,
compilation, program, device, method, technique or process, that both: (a) Derives
independent economic value, actual or potential, from not being generally known to, and
not being readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use. (b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.” A.R.S. § 44-401(4). A court commits error if it
dismisses a “claim on preemption grounds” if that “claim, as alleged, is not limited to trade
secrets.” Orca, 337 P.3d at 548.
…
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 47 of 56

- 48 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2. The Parties’ Arguments
GigSafe argues that “the gravamen of Openforce’s AUTSA claim is the alleged
misappropriation of information through Openforce’s enrollment process” and that the
complaint’s definition of “Trade Secrets” includes “enrollment workflows,” “the product
that Openforce makes available to its customers,” and “Openforce’s tailored and non-
public administrative interfaces available only to clients with the necessary login
credentials.” (Doc. 13 at 13.) GigSafe argues that the same “liability and injury theory
underlying” the AUTSA claim also underlies Counts Three, Four, Five, Eight, and Nine.
(Id. at 14.) At bottom, GigSafe argues that because “the Complaint makes no effort to
differentiate between which information [Openforce] alleges constitutes ‘trade secrets’ and
which information constitutes merely ‘confidential information,’” the claims are
preempted by the AUTSA. (Id.)
In response, Openforce argues that the challenged claims are not preempted by the
AUTSA because each “involves the misappropriation of trade secrets and confidential
information.” (Doc. 16 at 14.) Alternatively, Openforce contends that the challenged
claims are not preempted to the extent they “involve ‘conduct’ that goes beyond
‘misappropriation of trade secrets.’” (Id.)
In reply, GigSafe argues that “Openforce is trying to have their cake and eat it too.”
(Doc. 25 at 10.) GigSafe argues that, “[o]n the one hand, with respect to the trade-secret
claim, Openforce dismisses GigSafe’s argument that Openforce did not sufficiently
distinguish it trade secrets from its confidential information,” yet “[o]n the other hand, with
respect to GigSafe’s preemption argument, Openforce suggests the trade secrets and
confidential information are clearly two different categories of information.” (Id.) GigSafe
also disagrees with Openforce’s argument that “dismissal on preemption grounds is never
appropriate because whether the information is a trade secret will depend on further
discovery and litigation.” (Id.) GigSafe concludes that Openforce “does not attempt to
distinguish between confidential information underlying the tort claims and the trade
secrets underlying the AUTSA claim.” (Id. at 11.)
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 48 of 56

- 49 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3. Analysis
Paragraph 17 of the complaint provides a list of “Openforce’s trade secrets and
confidential information” and defines “[a]ll of these trade secrets and confidential
information in this paragraph” as “collectively, the ‘Trade Secrets.’” (Doc. 1 ¶ 17.) In
Count Two, Plaintiff asserts a claim for misappropriation under the AUTSA. (Id. ¶¶ 57-
66.) Count Two alleges that “Openforce is the owner of Trade Secrets, as defined above”
(id. ¶ 58)—referring to “Trade Secrets” as defined by paragraph 17. Count Two further
alleges that “[t]hese Trade Secrets”—using the defined term from paragraph 17—
“constitute ‘trade secrets’ under Arizona Rev. Stat. § 44-401(4).” (Id. ¶ 58.) Therefore,
the complaint unambiguously alleges that the trade secrets and confidential information
alleged to be “Trade Secrets,” as that term is defined in paragraph 17, are also all “trade
secrets” as defined by the AUTSA.
a. Count Three (Tortious Interference With Contract)
In Count Three, Openforce asserts a claim for tortious interference with contract.
(Doc. 1 ¶¶ 67-74.) Count Three alleges that “GigSafe and [Pickerell] used the Trade
Secrets and confidential information acquired by GigSafe’s employees to create a product
that competes with Openforce.” (Id. ¶ 72.) Openforce argues that Count Three is not
preempted because it “involves misappropriation of trade secrets and confidential
information.” (Doc. 16 at 14.) But by Openforce’s own admission, at least part of this
claim relates to the misappropriation of trade secrets. (Id.) To the extent it does, it is
preempted by the AUTSA.
Of course, Count Three purports to allege the misappropriation of “Trade Secrets
and confidential information.” (Doc. 1 ¶ 72, emphasis added.) Although the “AUTSA
does not displace common-law claims based on alleged misappropriation of confidential
information that is not a trade secret,” Orca, 337 P.3d at 546, the problem is that the
allegations in Count Three cannot plausibly be read as covering both Trade Secrets (as
defined by the complaint and as encompassed by the AUTSA) and confidential information
that does not rise to the level of a statutory trade secret.
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 49 of 56

- 50 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Smoketree Holding LLC v. Apke, 2023 WL 6377272 (D. Ariz. 2023), is instructive.
There, the plaintiff “argue[d] that its complaint defines ‘Trade Secret’ to include both
confidential information that rises to the statutory definition of a trade secret and
confidential information that does not meet the statutory definition of a trade secret.” Id.
at *3. The plaintiff argued that several of its claims were thus not preempted by the
AUTSA because they “are based on misappropriation of the confidential information that
does not meet the statutory definition of a trade secret.” Id. The court disagreed, holding
that the plaintiff’s “complaint, as presently drafted, is not reasonably read as covering both
trade secrets and confidential information that does not rise to the level of a trade secret.”
Id. The court further noted that the nowhere “does the complaint define ‘confidential
information’ or otherwise give Defendants fair notice of what sort of information forms the
basis of the tort claims, rather than the statutory misappropriation of trade secrets claims.”
Id. Accordingly, the court held that “as presently drafted,” the plaintiff’s claims were
“predicated on an alleged trade secret, [and] they are preempted by AUTSA.” Id.
Here, as in Smoketree, Openforce’s use of the defined term “Trade Secrets” in Count
Three cannot plausibly be interpreted as covering both trade secrets as defined by the
AUTSA and confidential information that does not meet the AUTSA’s statutory definition
of a trade secret, for the simple reason that the complaint defines all of the trade secrets
and confidential information listed in paragraph 17 of the complaint as “Trade Secrets” and
further alleges that those “Trade Secrets” all meet the AUTSA’s statutory definition of
trade secrets. Although Count Three uses the phrase “Trade Secrets and confidential
information” (Doc. 1 ¶ 72, emphasis added), as in Smoketree, the complaint fails to define
“confidential information” or “otherwise give Defendants fair notice of what sort of
information forms the basis of the tort claims, rather than the statutory misappropriation of
trade secrets claims.” Smoketree, 2023 WL 6377272 at *3.
Bureau Veritas Tech. Assessments LLC v. Brosa, 2025 WL 3442766 (D. Ariz.
2025), also supports this result. There, the plaintiffs “argue[d] that their unfair competition
claim is based on the misappropriation of ‘confidential information,’ not trade secrets.” Id.
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 50 of 56

- 51 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
at *13. Although the complaint defined such confidential information to include “customer
specific project management software applications,” the court noted that “that category of
information was successfully pled as a trade secret.” Id. Thus, “[a]s currently pled, the
unfair competition claim against Defendant Brosa is preempted under AUTSA.” Id.
Similarly, Count Three alleges that “GigSafe and [Pickerell] directed GigSafe’s employees
and agents to sign up or enroll on Openforce’s platform as independent contractors for
Customers A-J for the purposes of learning Openforce’s workflows as to each of Customers
A-J.” (Doc. 1 ¶ 71.) But paragraph 17 of the complaint alleges that these “workflows” are
“Trade Secrets.” (Id. ¶ 17 [defining “Trade Secrets” as, inter alia, “customers’ tailored
enrollment workflows that meet their own individual needs,” “workflows containing the
necessary steps that legitimate independent contractors take to enroll to do business with
one of Openforce’s customers,” and “Workflow Designer, as well as the resulting selection
and arrangement of workflows it makes available to its customers”].)
Cadence Bank v. Heritage Fam. Offs. L.L.P., 2024 WL 962174 (D. Ariz. 2024),
which Openforce cites, does not compel a different result. There, the court held that
“whether information constitutes a trade secret is a question of fact,” and “[b]ecause these
claims could plausibly encompass non-trade-secret information, the claims cannot be
preempted at this stage in the litigation.” Id. at *6. But the complaint here fails to identify
any confidential information that does not also qualify as “Trade Secrets” (as the complaint
defines that term).
Finally, the Court is unconvinced by Openforce’s contention that Count Three
escapes preemption because it “involve[s] ‘conduct’ that goes beyond ‘misappropriation
of trade secrets’”—i.e., it alleges that “GigSafe targeted specific contracts and business
relationships,” which is “conduct going beyond misappropriation.” (Doc. 16 at 14.) As
pleaded, the “conduct” alleged in Counts Three is GigSafe’s hacking into Openforce’s
systems to misappropriate Openforce’s trade secrets and GigSafe’s use of those trade
secrets to take Openforce’s business. (Doc. 1 ¶¶ 71-72.) That is the same “conduct”
alleged as misappropriation in the AUTSA claim: “Pickerell and GigSafe misappropriated
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 51 of 56

- 52 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the Trade Secrets in the ways described above and incorporated herein, including by . . .
using them in direct competition with Openforce.” (Id. ¶ 63.) Because Count Three
“appears exclusively based on misappropriation of [Openforce’s] trade secret[s],” Modulus
Glob. Inc. v. Quintzy FZE LLC, 2023 WL 6147567, *2 (D. Ariz. 2023), it is preempted.
b. Count Four (Tortious Interference With Business
Expectancy)
Count Four does not mention “Trade Secrets” or “confidential information.” (Doc.
1 ¶¶ 75-81.) Instead, it alleges that “GigSafe and [Pickerell] used the information acquired
by GigSafe’s employees.” (Id. ¶ 79, emphasis added.) Regardless of this wordsmithing,
the analysis is the same as under Count Three. At bottom, the only alleged misconduct
underlying Count Four is the misappropriation of “information” that is defined elsewhere
as Openforce’s “Trade Secrets.” Accordingly, Count Four is preempted.
c. Count Five (Fraudulent Misrepresentation)
Count Five alleges that Defendants (or their agents) made misrepresentations that
enabled them to misappropriate “information” that they then used to unfairly compete with
Openforce. (Id. ¶ 89 [“As a direct result of GigSafe’s conduct, Openforce has suffered
injury. . . . GigSafe and [Pickerell] used the information acquired by GigSafe’s employees
through fraud to create a product that competes with Openforce. At least three of
Customers A–J have left or will leave Openforce, and two of Customers A–J are listed as
customers on GigSafe’s website.”].) As with Count Four, this “information” is defined
elsewhere as Openforce’s Trade Secrets. It follows that Count Five is preempted, too.
d. Count Eight (Unfair Competition)
Count Eight alleges that “Openforce owns confidential information” and “maintains
that this information qualifies as trade secrets as defined above and under both the DTSA
and AUTSA.” (Doc. 1 ¶ 110.) However, Count Eight alleges in the alternative that “to the
extent that this information is determined to not qualify as a trade secret, Openforce
maintains that this information qualifies as confidential, including because Openforce has
taken appropriate measures to keep this information secret.” (Id.)
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 52 of 56

- 53 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In GlobalTranz, the court permitted the plaintiff’s unfair competition claim to
proceed to the extent “the claim can be read as an alternative to the trade secret claims.”
2017 WL 11609546 at *7. Relying on Orca, the court held that “[i]f the information
allegedly misappropriated does not qualify as trade secrets, it qualifies as confidential and,
therefore, can support an unfair competition claim.” Id. Although not all Arizona courts
have agreed with this approach, see Ariz. Grain Inc. v. Barkley Ag Enters. LLC, 2020 WL
1821155 (D. Ariz. 2020), the Court finds it persuasive and thus agrees that Count Eight is
not subject to dismissal at this early stage of the case. See also Fed. R. Civ. P. 8(d)(2) (“A
party may set out 2 or more statements of a claim . . . alternatively or hypothetically, either
in a single count . . . or in separate ones.”). Cf. Lacey v. Maricopa Cnty., 693 F.3d 896,
918 n.10 (9th Cir. 2012) (en banc) (“We note that the complaint pleads alternative facts
about who ordered the arrests and how they were ordered. This is permissible.”) (citation
omitted).
e. Count Nine (Unjust Enrichment)
Count Nine is preempted because it is premised exclusively on the misappropriation
of trade secrets. Count Nine alleges that “Openforce owns Trade Secrets, as defined
above”; that “Pickerell and GigSafe misappropriated the Trade Secrets . . . including by
acquiring, retaining, and using Openforce’s trade secret information”; that “Pickerell and
GigSafe used the Trade Secrets”; that “Pickerell and GigSafe have economically benefited
from their use of Openforce’s Trade Secrets”; that “[a]t no time did Openforce consent to
GigSafe’s or [Pickerell’s] using the Trade Secrets”; and that “[it] would be inequitable and
unjust to allow Defendants to retain the economic benefits conferred upon them by stealing
Openforce’s Trade Secrets.” (Doc. 1 ¶¶ 117-19.) Elsewhere, the complaint clarifies that
information defined as “Trade Secrets” in the complaint also “constitute[s] ‘trade secrets’
under” the AUTSA. (Id. ¶ 58.) Openforce’s argument that “the unjust enrichment claim
. . . could also encompass confidential information falling short of a legal trade secret”
(Doc. 16 at 15) is thus without merit, as that argument is directly contradicted by the
allegations in the complaint. Smoketree, 2023 WL 6377272 at *3-4 (dismissing unjust
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 53 of 56

- 54 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
enrichment claim “predicated on an alleged trade secret”).
F. Economic Loss Rule
GigSafe moves to dismiss Counts Three, Four, and Eight as barred by the economic
loss rule (“ELR”). (Doc. 13 at 14-16.) However, as discussed above, Counts Three and
Four have now been dismissed based on AUTSA preemption. Accordingly, it is only
necessary to analyze the applicability of the ELR in relation to Count Eight.
1. Legal Standard
The ELR limits “a contracting party to contractual remedies for the recovery of
economic losses unaccompanied by physical injury to persons or other property.” Flagstaff
Affordable Hous. Ltd. P’ship v. Design All., Inc., 223 P.3d 664, 667 (Ariz. 2010). The
doctrine is not applied mechanically and instead requires the court to consider the “relevant
policy concerns” presented by the individual factual situation. Id. at 673. One such policy
consideration is the different purposes that contractual and tort remedies serve: “Generally,
contract law enforces the expectancy interests between contracting parties and provides
redress for parties who fail to receive the benefit of their bargain. . . . Tort law, in contrast,
seeks to protect the public from harm to person or property.” QC Constr. Prods., LLC v.
Cohill’s Bldg. Specialties, Inc., 423 F. Supp. 2d 1008, 1015 (D. Ariz. 2006) (quoting
Carstens v. City of Phx., 75 P.3d 1081, 1083 (Ariz. Ct. App. 2003)).
2. The Parties’ Arguments
GigSafe argues that “if the Court finds that the Complaint sufficiently alleges a
breach of the MNDA in the form of either improper solicitation of customers under the
MNDA or improper use of Openforce’s purported ‘Trade Secrets,’ then the [ELR] bars
Openforce’s tortious interference and unfair competition claims.” (Doc. 13 at 15.) Relying
on BMO Harris Bank NA v. Corley, 2022 WL 4781944 (D. Ariz. 2022), GigSafe argues
that where “the conduct giving rise” to a tortious interference claim “is the exact same
conduct giving rise to” the breach of contract claim—“i.e., the improper solicitation of
clients while using confidential information”—the ELR will bar the tortious interference
claim. (Id., cleaned up.) GigSafe argues that because “[t]he alleged conduct giving rise to
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 54 of 56

- 55 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Openforce’s breach of contract claim is no different from that described in Counts III, IV,
and VIII,” those claims are barred by the ELR. (Id. at 16.)
In response, Openforce argues that “[t]he harms arising out of Openforce’s tortious
interference and unfair competition claims go far beyond the ‘subject of’ the MNDA
between Openforce and GigSafe.” (Doc. 16 at 15.) Openforce argues that although the
complaint alleges that GigSafe violated the MNDA by “misusing information it learned
under” the MNDA, “this misconduct is not the sole subject of Openforce’s tortious
interference or unfair competition claims” because those claims also allege that GigSafe
hacked into Openforce’s systems and used that information to compete with Openforce.
(Id. at 15-16.) Openforce argues that the hacking “allegations do not implicate the MNDA,
so the alleged harm for these claims is not” the subject of the MNDA. (Id. at 16.)
In reply, GigSafe reiterates that it “made clear that the [ELR] applies only if the
Court determines that Openforce adequately pleaded a breach of the MNDA claim.” (Doc.
25 at 11.)
3. Analysis
To the extent Count Eight is premised on the misappropriation of confidential
information improperly accessed at the in-person meeting pursuant to the MNDA, it may
be barred by the ELR. However, to the extent that Count Eight is premised on the
misappropriation of confidential information acquired via GigSafe’s hacking of
Openforce’s systems, it is not barred by the ELR. The MNDA defines “Confidential
Information” as including “Trade Secrets” which the “Disclosing Party” “disclose[s], or
permit[s] access to.” (Doc. 1-1 at 2 § 1(a).) Confidential information obtained when
GigSafe’s employees hacked Openforce’s systems would not have been “disclosed” by
Openforce and Openforce did not “permit access” to that information under the terms of
the MNDA.
Because Count Eight is not entirely subject to dismissal based on the ELR,
Defendants’ request to dismiss Count Eight at this early stage of the case is denied. Rich
v. BAC Home Loans Servicing, LP, 2013 WL 10104610, *8 (D. Ariz. 2013) (“The Court
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 55 of 56

- 56 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
finds it unnecessary to parse out Plaintiffs’ various allegations and rule that some theories
are adequate while others are not. On a Rule 12(b)(6) motion, Defendants may move to
dismiss ‘a claim,’ not to dismiss or strike specific allegations or portions of a claim.”).12
III. Leave to Amend
Consistent with Rule 15(a)(2)’s textual mandate to “freely give leave” to amend and
the Ninth Circuit’s exhortation to apply this mandate with “extreme liberality,” Owens v.
Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (citation omitted), the
Court will give Openforce an attempt to amend the counts being dismissed in this order.
Accordingly,
IT IS ORDERED that:
1. Pickerell’s motion to dismiss (Doc. 12) is granted in part and denied in
part. To the extent Pickerell’s motion is brought pursuant to Rule 12(b)(2), the motion is
denied. To the extent Pickerell’s motion is brought pursuant to Rule 12(b)(6), it is granted
in part and denied in part consistent with the Court’s ruling on GigSafe’s motion to dismiss.
2. GigSafe’s motion to dismiss (Doc. 13) is granted in part and denied in
part.
3. Openforce may file a First Amended Complaint (“FAC”) within 14 days of
the issuance of this order. Any changes shall be limited to attempting to rectify the
deficiencies identified in this order. Openforce shall, consistent with LRCiv 15.1, attach a
redlined version of the pleading as an exhibit.
Dated this 30th day of January, 2026.
12 This conclusion also makes it unnecessary to address whether Count Eight, to the
extent it is premised on the solicitation of customers, is barred by the ELR.
Case 2:25-cv-01645-DWL Document 35 Filed 01/30/26 Page 56 of 56