MEMORANDUM AND ORDER Plaintiff Hardwire LLC (“Hardwire”) brought this action against Freyssinet International Et Cie and Freyssinet, Inc. (the “Freyssinet Defendants), and the remaining ten named defendants (collectively, “Defendants”), alleging several federal trade secret and business tort claims arising from Defendants’ alleged misappropriation of Hardwire’s proprietary bridge cable shielding technologies. Pending before the Court is Defendants’ motion to dismiss each of Hardwire’s claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons explained below, Defendants’ motion is denied with respect to all counts aside from Hardwire’s claim under section 2 of the Sherman Antitrust Act, which is dismissed with prejudice. I. FACTUAL BACKGROUND The following facts are taken from the Complaint and papers attached thereto. Hardwire is a Maryland-based corporation specializing in the development of protective armor for a variety of public contracting uses, including shielding for bridge stay cables intended to protect them from terrorist attacks. Freyssinet International Et Cie is a French engineering firm that manufactures and installs structural cables, including those used in bridges. Freyssinet, Inc., a Virginia corporation, is the United States arm of Freyssinet International Et Cie. Hardwire’s allegations center on the three categories of proprietary information used to develop its stay cable armor: (1) “Armor Recipes,” which are the materials and manufacturing processes needed to create the armor, (2) “Integration Designs,” which dictate how the armor must be configured to a bridge’s cables, and (3) “Armor Proposals,” which are construction bids for specific bridge protection projects. Compl. 37-44. Nonparty Irvin Ebaugh (“Ebaugh”) worked as Hardwire’s program manager for bridge armor projects before his firing in February 2013. While employed at Hardwire, Ebaugh worked with the Freyssinet Defendants on construction projects the companies planned to complete together. As a part of this cooperation, Ebaugh had entered into a mutual nondisclosure agreement (“NDA”) and a memorandum of understanding on behalf of Hardwire with Freyssinet International in June 2012. After he was fired but before leaving Hardwire, Ebaugh took a USB drive and notebook containing proprietary data from his office, ignoring Hardwire’s request to review them first. Hardwire contacted the Federal Bureau of Investigation to report that Ebaugh may have stolen and misappropriated its trade secrets. Ebaugh’s home was raided in an investigation, which revealed that he had taken over 27,000 files from Hardwire’s computers and had trespassed onto Hardwire’s property to photograph its proprietary technology and hardware. Ebaugh soon after started a company under the name “Infrastructure Armor.” Around the same time, Defendants stopped responding to Hardwire’s inquiries about an exclusive working relationship. In 2014, Hardwire entered into a partnership with two of Defendants’ competitors to bid on the stay cables and cable shielding for the Kosciuszko Bridge, a major public bridge project in Queens, New York. Hardwire was informed its bid was not competitive in August 2014. In May 2014, Defendants began working closely with Ebaugh and Infrastructure Armor; they informed Hardwire of their working relationship in September 2014. Defendants soon after told Hardwire that they were awarded the cable and shielding contract for the Kosciuszko Bridge. Ebaugh’s firm, Infrastructure Armor, was subcontracted by Defendants to provide the cable shielding. Hardwire then placed another bid for the work, which was denied. At some point over the next several months, Hardwire learned that Ebaugh had communicated with Hardwire’s suppliers regarding the use of Hardwire’s molds, dies, and designs. In February 2015, Hardwire learned that Defendants had subcontracted with Ebaugh and Infrastructure Armor to perform the Kosciuszko Bridge cable shielding work. In addition to losing out on the Kosciuszko Bridge project, Hardwire claims that Defendants have continued to use its trade secrets to compete with it and undercut prices, causing it to lose several other bridge contracts. These include projects in Texas, Washington, D.C., the Middle East, and an unspecified international location between 2016 and 2018. Hardwire also alleges that Defendants fraudulently communicated bids for these contracts that contained Hardwire’s trade secrets over mail and e-mail. It declines to give more specific information about the locations or names of these projects, citing security concerns. Hardwire’s Complaint alleges Defendants violated the Defense and Trade Secrets Act (“DTSA”), 18 U.S.C. §1836 et seq., the Maryland Uniform Trade Secrets Act (“MUTSA”), Md. Code Ann. Comm. Law §11-1201 et seq., the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §1961 et seq. (against Freyssinet Defendants only), and sections one and two of the Sherman Antitrust Act, 15 U.S.C. §1-2 (against Freyssinet Defendants only). It also alleges claims for breach of contract (against Freyssinet Defendants only), fraud, civil conspiracy, and state law business torts. Defendants ask that each of these claims be dismissed because they are untimely and insufficiently pleaded. II. LEGAL STANDARD To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[A] court may consider the complaint as well as any written instrument attached to [the complaint] as an exhibit” in making this determination. Kalyanaram v. Am. Ass’n of Univ. Professors at New York Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014) (internal quotation omitted).1 A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp., 550 U.S. at 555. “[T]he proper question is whether there is a permissible relevant inference from all of the facts alleged, taken collectively, not whether an inference is permissible based on any individual allegation, scrutinized in isolation.” Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842, 854 (2d Cir. 2021) (internal quotation omitted). “Although the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint.” Zirvi v. Flatley, 433 F. Supp. 3d 448, 459 (S.D.N.Y. 2020) (quoting Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798 n.12 (2nd Cir. 2014)). Because the limitations date is normally “a question of fact,” Schwab v. Philip Morris USA, Inc., 2005 WL 2467766, at *1 (E.D.N.Y. Oct. 6, 2005), “a pre-answer motion to dismiss on this ground may be granted only if it is clear on the face of the complaint that the statute of limitations has run,” Fargas v. Cincinnati Mach., LLC, 986 F. Supp. 2d 420, 427 (S.D.N.Y. 2013). III. DISCUSSION A. Timeliness The Court first turns to Defendants’ arguments that each of Hardwire’s claims is time barred. Hardwire filed the instant suit in December 2021. Because Hardwire is not a New York corporation, its state law claims are governed by the shorter of New York’s statute of limitations and the statute of limitations of the state where the actions accrued. N.Y. C.P.L.R. §214(4). Here, the parties agree that the actions accrued in Maryland. For claims where Maryland’s statute of limitations apply, so too will its rules for accrual and tolling. RA Global Servs. v. Avicenna Overseas Corp, 817 F. Supp. 2d 274, 282 (S.D.N.Y. 2011). Hardwire’s federal claims, on the other hand, are governed by the limitations periods supplied by their respective statutes. For the reasons described below, the Court rejects each of Defendants’ challenges to the timeliness of Hardwire’s claims. 1. Hardwire’s DTSA and MUTSA Claims Hardwire’s federal DTSA claims have a three-year statute of limitations that runs from when the alleged misappropriation “is discovered or by the exercise of reasonable diligence should have been discovered.” 18 U.S.C. §1836(d). This occurs when the plaintiff becomes aware or should have become aware that the secrets “were wrongfully acquired, disclosed, or used.” Zirvi, 433 F. Supp. 3d at 459 (quotation omitted). The limitations period is not restarted by allegations of continuing misappropriation. 18 U.S.C. §1836(d). MUTSA claims are likewise subject to a three-year statute of limitations beginning at the same discovery threshold. Md. Code Ann., Com. Law §11-1206(a)-(b). Claims under both statutes incorporate the concept of inquiry notice to determine whether a plaintiff should have been aware of the misappropriation. A “court may determine as a matter of law when a claim should have been discovered only when ‘uncontroverted evidence irrefutably demonstrates when plaintiff discovered or should have discovered the fraudulent conduct.’” United Res. 1988-I Drilling & Completion Program, L.P. v. Avalon Expl., Inc., 1993 WL 17464, at *5 (S.D.N.Y. Jan. 21, 1993) (internal quotation omitted). Accordingly, determining “whether a plaintiff had sufficient facts to place it on inquiry notice is often inappropriate” on a motion to dismiss, but possible when “the facts needed for determination of when a reasonable [plaintiff] of ordinary intelligence would have been aware” of the action’s accrual are present in the Complaint. LC Cap. Partners, LP v. Frontier Ins. Grp., Inc., 318 F.3d 148, 156 (2d Cir. 2003) (internal quotations omitted). Hardwire alleges that Freyssinet, Inc. obtained its trade secrets from Hardwire’s bid proposals for the Kosciuszko Bridge and through drawings Hardwire created for Freyssinet International when the two companies were working together. It claims that Freyssinet, Inc. disclosed these secrets to Ebaugh on March 3, June 17, and July 16 of 2014, and that Defendants used them between 2016 and 2018 during the bidding process, construction, and repairs for the Kosciuszko bridge, and in bids for four other projects. Defendants contend that the timeliness analysis should focus on the alleged disclosure and not the use of the trade secrets, because their use is “subsumed into a continuing trade secret misappropriation” that would not alter the start date of the statute of limitations period. Mem. in Supp. of Motion to Dismiss, Dkt. No. 39 at 10. They argue that Hardwire should have realized by February 2015 that the secrets it showed Defendants during their time working together — the Integration Designs and Amor Proposals — had been disclosed to Ebaugh by Defendants. By February 2015, Hardwire knew Defendants and Ebaugh had won the Kosciuszko Bridge contract. Hardwire had provided Defendants with its Integration Designs and Armor Proposals as a part of its bid for the Kosciuszko work beforehand. Hardwire also knew at this time that Defendants and Ebaugh had worked together while Ebaugh was still a Hardwire employee and that they were now working together again after his firing to formulate proposals for the Kosciuszko Bridge. Hardwire was aware that Defendants had no collaborative communication with Hardwire after Ebaugh’s firing. Finally, it was aware that Ebaugh knew of the last category of trade secrets, the Armor Recipes, from his time at Hardwire and that Ebaugh had been in contact with Hardwire’s suppliers about using its molds, dies, and designs. Defendants reason that given this information, Hardwire should have discovered by February 2015 that Ebaugh had been given the Integration Designs and Armor Proposals by Defendants. This is because Defendants needed all three of the Armor Recipes, Integration Designs, and Amor Proposals for a successful bid, and “there was no way” Ebaugh could have developed his own Integration Designs and Armor Proposals in time. Compl. 119-20. In response, Hardwire points to allegations in the Complaint suggesting that it had no suspicion of the Freyssinet Defendants until November 2020, when it received discovery from Ebaugh in an earlier lawsuit against him. Compl. 12. It also disagrees that Ebaugh must have been given the Integration Designs and Armor Proposals from the Freyssinet Defendants — the Complaint alleges that Ebaugh had access to all three secrets when he worked at Hardwire and stole them after his termination by taking a hard drive, notebook, and photos of Hardwire’s hardware. See Compl., 363; see Compl., 164 (alleging that Ebaugh was “in a position to duplicate Hardwire’s bridge armor…on his own.”). However, other portions of the Complaint suggest that Hardwire may only have been aware of Ebaugh’s possession of the Armor Recipes. See Compl. 17(c) (Defendants “provided [Ebaugh] with Hardwire’s proprietary Integration Designs and Armor Proposals…for Mr. Ebaugh to use, along with Hardwire’s Armor Recipe (which Mr. Ebaugh had stolen from Hardwire) to create a competing product); Compl.
120-22 (Ebaugh and Defendants “combine[d]” Hardwire’s trade secrets that each had “ brought…to the table”). The Complaint does not show on its face that the clock on Hardwire’s trade secrets claims began running in February 2015. What Hardwire should have discovered from the elaborate negative implication weaved by Defendants is a question of fact better suited for a later stage of litigation. Even if Hardwire could have discovered the disclosure as early as February 2015, it is not a foregone conclusion that it would or should have discovered it upon reasonable inquiry. See Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 363 (2d Cir. 2013). 2. Hardwire’s RICO claim Hardwire’s civil claims under the federal RICO statute are subject to a fouryear limitations period, which runs from “when the plaintiff…discovers or reasonably should have discovered the RICO injury.” Koch v. Christie’s Int’l PLC, 699 F.3d 141, 148 (2d Cir. 2012). Under the “separate accrual rule,” the statute of limitations is reset by “new and independent injuries.” In re Merrill Lynch Ltd. Partnerships Litig., 154 F. 3d 56, 59-60 (2nd Cir. 1998). Because Hardwire’s suit was filed in December 2021, the limitations period stretches back to December 2017. Defendants argue that the clock for Hardwire’s RICO claim began ticking in February 2015, when Hardwire suffered alleged economic loss stemming from Defendants winning the Kosciuszko Bridge work with Hardwire’s misappropriated trade secrets. Specifically, Hardwire’s injury can be attributed to Ebaugh’s company winning the cable shielding subcontract for the Bridge from Defendants. In response, Hardwire again insists that it only suspected Ebaugh, not Defendants, because of Ebaugh’s broad access to Hardwire’s information as an employee. Even after the investigation of Ebaugh by federal law enforcement, suing Ebaugh in Maryland, and subpoenaing Freyssinet, Inc., it took until November 2020 for Hardwire to discover Defendants’ conduct. As discussed above, Defendants have not sufficiently established that Hardwire should have discovered that Defendants caused it to lose the Kosciuszko Bridge contract by February 2015. Hardwire also argues that Defendants’ actions caused further injuries after the loss of the Kosciuszko Bridge contracts, including lost contracts in other public works projects between 2016 and 2019, which reset the statute of limitations under the separate accrual rule. Defendants argue that these do not constitute “new and independent injuries” as required by the separate accrual rule because Hardwire does not plead that they injured its business. In re Merrill Lynch Ltd. Partnerships Litig., 154 F. 3d 56, 59-60 (2nd Cir. 1998). However, the Complaint alleges that Hardwire lost out on contracts during and after 2017, placing their alleged market share injuries within the four-year statute of limitations. Compl.
