AGI Suretrack, LLC v. Tackett et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AGI SURETRACK, LLC,
Plaintiff,
v. 	Case No. 23-2372-JWB
OPISYSTEMS INC., INTEGRIS USA,
LLC, SETH TACKETT, and ADAM
WEISS,
Defendants.
MEMORANDUM AND ORDER
This matter is before the court on Defendants’ objections to the magistrate’s order (Doc.
215); Defendants’ motion to dismiss (Doc. 218); and Plaintiff’s motion to strike, or, in the
alternative, motion for leave to file surreply (Doc. 231). The motions have been fully briefed and
are ripe for decision. (Docs. 220, 223–24, 230.) For the reasons stated, Defendants’ objections to
the magistrate’s order are OVERRULED; Defendants’ motion to dismiss is DENIED; and
Plaintiff’s motion to strike, or, in the alternative, motion for leave to file surreply is DENIED.
I. 	Facts
The following facts are taken from Plaintiff’s second amended complaint (“SAC”). (Doc.
214.) 1 	AGI SureTrack, LLC (“AGI” or “Plaintiff”) brings this action against OPISystems Inc.
(“OPI”), Integris USA, LLC (“Integris”), Seth Tackett (“Tackett”) and Adam Weiss (“Weiss”),
(collectively “Defendants”). (Id. at 1.) AGI is an agricultural technology company that develops
1 Because the court holds that the magistrate’s order allowing Plaintiff leave to amend its complaint was properly
decided, the court uses the SAC to recite the relevant factual allegations. (Doc. 213.) To that end, Defendants’ motion
to dismiss only seeks dismissal of Plaintiff’s unjust enrichment claim. 	(Doc. 218.) 	Accordingly, the factual
background of this order focuses on that claim.
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and sells the BinManager system—a cloud-based software that uses sensors in grain bins to
monitor temperature and moisture (“BinManager” or the “source code”). (Id. ¶¶ 1-2.) Since 2020,
AGI has invested substantial resources in developing BinManager. (Id. ¶¶ 5, 55, 66-68, 73, 110.)
BinManager provides remote monitoring and automated control, and the associated
software codes are highly confidential and constitute trade secrets critical to AGI’s market
competitiveness. (Id. ¶¶ 43-44.) OPI, a business competitor, recently hired numerous former AGI
employees, including Weiss as Chief Technology Officer and Tackett as a salesperson. (Id. ¶¶ 6-
8, 86-87.) AGI alleges OPI, and its U.S. market affiliate Integris, embarked on a scheme to capture
its customers through unlawful theft of trade secrets and confidential information rather than
competition and development. 	(Id. ¶¶ 10-11, 85-86.) 	This action seeks to prevent OPI’s
misappropriation and enforce employee agreements while seeking damages.
In January 2023, management changes at AGI led to a reduction in force, after which many
employees resigned—including Weiss and Tackett. 	(Id. ¶ 49.) 	Following the reduction, OPI
recruiters contacted AGI sales team members, and several employees downloaded customer
information and software related to BinManager in preparation for departure. (Id. ¶ 50.) Based
on that, AGI alleges that OPI has systematically targeted and hired AGI’s current and recently
terminated employees. 	(Id. ¶ 88.) 	Many hired employees, including Tackett and Weiss, were
intimately 	familiar 	with 	AGI’s 	confidential 	information, 	sales 	and 	customer 	data, 	and
BinManager’s technical workings.2 	Weiss actively managed the entire engineering team, had
hands-on 	involvement 	with 	BinManager 	software, 	accessed 	source 	code, 	and 	improved
2 AGI has filed lawsuits similar to this one in the Western District of Missouri against former employees alleging non-
compete violations and trade secret theft. See AGI SureTrack v. Andricks, et al., Case No. 4:23-cv-00605-RK (W.D.
Mo.). That lawsuit has been consolidated with AGI SureTrack, LLC v. Intellifarms Northern Division, Case No. 4:23-
578-RK (W.D. Mo.) (collectively, the “Missouri Litigation”). The court takes judicial notice of these actions. See
Est. of Holmes by & through Couser v. Somers, No. 18-1221-JWB, 2021 WL 236080, at *6 (D. Kan. Jan. 25, 2021)
(citing United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir. 2007) (courts have “discretion to take judicial
notice of publicly-filed records . . . concerning matters that bear directly upon the disposition of the case at hand.”).
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algorithms. 	He worked directly with Tim Penrod (“Penrod”),3 the lead BinManager firmware
developer, who was involved in all technical projects including development. (Id. ¶ 91.)
OPI’s hiring of Weiss provided access to confidential and trade secret information enabling
development of products with attributes similar to BinManager. Weiss admitted OPI has been and
plans to continue developing a product that reads messages from AGI cables and sensors, allowing
customer conversion without replacing previously installed AGI hardware. 	(Id. ¶ 92.) 	OPI
developed a proof-of-concept product incorporating BinManager technology within months of
Weiss’ hiring, which allegedly could not have been done without AGI’s confidential information.
Weiss has boasted his OPI employment allowed the company to get a product “just like
BinManager” to market faster. (Id. ¶ 95.)
In April 2023, Weiss and Brett Andricks (former AGI national sales lead and OPI’s current
head of sales) met twice with AGI’s current head of sales to entice him to become an OPI dealer,
providing detailed information about OPI’s plans to access AGI’s cables and hardware. (Id. ¶ 96.)
When asked how OPI would accomplish this technical connection, Weiss replied, “We have Tim
Penrod.” 	(Id. ¶ 96.) 	Further, other OPI representatives have boasted to AGI’s customers and
dealers about developing “a system just like BinManager.” (Id. ¶ 97.)
While still employed by AGI, Tackett signed a 1-year non-compete agreement with OPI,
and his last day was May 3, 2023. 	(Id. ¶¶ 111-113.) 	Upon departure, Tackett failed to return
documents or materials containing confidential information. Tackett began working for OPI on
May 8, 2023, performing sales and specialized tasks nearly identical to his AGI role. (Id. ¶¶ 115-
116.) 	Since joining OPI, Tackett has solicited AGI dealers and customers within his former
territories to become OPI distributors and has recruited former AGI colleagues to join OPI.
3 Penrod is a named defendant in AGI SureTrack, LLC v. Andricks et al., Case No. 4:23-cv-605-RK (W.D. Mo.).
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Weiss became an AGI employee in March 2019. 	(Id. ¶¶ 120-122.) 	Throughout his
employment, Weiss was bound by confidentiality, non-compete, and non-solicitation agreements.
(Id. ¶¶ 123-125; see Docs. 214-2; 214-3; 214-4.) 	Weiss had extensive access to confidential
information regarding BinManager software and product development plans. (Doc. 214 ¶ 132.)
While employed, Weiss forwarded confidential information to his personal email multiple times.
(Id. ¶ 133.) After notifying AGI of his resignation on December 13, 2021, Weiss requested and
received access to confidential technical information about PCB boards, components, suppliers,
and costs on January 6, 2022. 	His last day was January 12, 2022, wherein he failed to return
documents or materials containing confidential information. 	After departure, Weiss personally
accessed AGI internal accounts multiple times. (Id. ¶ 139.)
Though Weiss worked at another company in a non-violating technical role, he was in
communication with OPI by August 2022. (Id. ¶¶ 140-141.) Eventually, Weiss joined OPI as a
contractor in September 2022, allegedly in violation of his non-compete, and was given a
nondescript email address (devcon@opisystems.com). 	(Id. ¶¶ 142-143.) 	He became Chief
Technology Officer of OPI on February 15, 2023, shortly after the non-compete expired, and was
promoted to CEO in December 2023. Weiss recruited AGI employees including Penrod and David
Duncan, another lead software architect with a non-compete. 	(Id. ¶ 146.) 	Shortly after Weiss,
Tackett, and Penrod joined OPI, the company released two new products directly competing with
AGI that allegedly utilize AGI’s confidential information. (Id. ¶ 149.)
AGI further alleges that OPI misappropriated AGI’s confidential BinManager source code.
(Id. ¶ 155.) Just weeks before leaving AGI in March 2022, Penrod downloaded source code to a
flash drive and did not return it after his employment ended. OPI then hired Penrod for firmware
development on its BinManager-competitive product—OPI Blue—a product that competes
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directly with BinManager. (Id. ¶¶ 86, 157.) Penrod possessed AGI’s source code when hired by
OPI. Specifically, Penrod stored the flash drive in his home office, downloaded the stolen source
code to a personal laptop used for early OPI contracting work, and backed up another copy to his
Microsoft OneDrive account. 	(Id. ¶¶ 159-160.) 	Penrod accessed the stolen source code in
furtherance of his OPI job duties, including to assist OPI’s BinManager integration project at
Weiss’s request. (Id. ¶ 161.) AGI alleges that Weiss knew of Penrod’s possession since at least
the instant litigation commenced. (Id. ¶ 162.) Penrod acquired, possessed, and used AGI’s source
code in his OPI job duties, and OPI was aware of this possession. 	(Id. ¶¶ 165-170.) 	OPI and
Integris have actively interfered with AGI’s customers using AGI’s trade secret information that
could have only been acquired by AGI’s prior employees, including using AGI’s proprietary
software to generate specifications for OPI product sales.
AGI first filed suit on August 28, 2023. (Doc. 1.) But based on newly discovered facts,
AGI filed a motion to amend their complaint on May 12, 2025, seeking to add a claim of unjust
enrichment against OPI and Integris. (Doc. 193.) On August 21, 2025, Magistrate Judge Birzer
granted AGI’s motion to amend. 	(Doc. 213.) 	Following this, Plaintiff filed its SAC and
Defendants promptly and timely objected to the order and filed a motion to dismiss the SAC.
(Docs. 214–215, 218.)
II. 	Standards
A. Objection to Magistrate Judge’s Order
Under Fed. R. Civ. P. 72(a), the district court “must consider timely objections [to a
magistrate judge’s non-dispositive order, as in the instant matter] and modify or set aside any part
of the order that is clearly erroneous or is contrary to law.” The clearly erroneous standard requires
this court to affirm any factual determination by the magistrate judge unless, on the entire evidence,
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it is left with the definite and firm conviction that a mistake has been made. Hale v. Emporia State
Univ., No. 16-4182-DDC, 2018 WL 1609552, *1 (D. Kan. Apr. 3, 2018) (citation omitted). 	In
assessing the “contrary to law” standard, the district court is permitted to independently review
purely legal determinations made by the magistrate judge, and to modify or set them aside if the
order “fails to apply or misapplies relevant statutes, case law or rules of procedure.” United States
v. Kaeckell, No. 19-mc-209-DDC, 2019 WL 6486744, at *1 (D. Kan. Dec. 3, 2019). A district
court must affirm a magistrate judge’s decision unless “on the entire evidence,” the district court
“is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp.
v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quotation omitted).
B. Motion to Dismiss.
The court will grant a Rule 12(b)(6) motion to dismiss only when the factual allegations
fail to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); see also Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003). 	In order to
withstand a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint must
contain enough allegations of fact to state a claim to relief that is plausible on its face and not just
conceivable. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 550
U.S. at 555); see also In re Motor Fuel Temperature Sales Practices Litig., 534 F. Supp. 2d 1214,
1216 (D. Kan. 2008). 	All well-pleaded facts and the reasonable inferences derived from those
facts are viewed in the light most favorable to Plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283
(10th Cir. 2008). The court construes any reasonable inferences from these facts in favor of the
nonmoving party. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). Conclusory allegations,
however, have no bearing upon the court’s consideration. Shero v. City of Grove, Okla., 510 F.3d
1196, 1200 (10th Cir. 2007).
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III. 	Analysis
Because Defendants seek both to overrule the magistrate’s order which granted Plaintiff
leave to amend their complaint (Doc. 215) and to dismiss that same amended complaint (Doc.
218), the court must first address Defendants’ objections to the magistrate’s order.
A. Defendants’ Objections to the Magistrate’s Order
Defendants first object to Magistrate Judge Birzer’s order granting Plaintiff leave to amend
its complaint (Doc. 213 at 5–16), arguing the decision was clearly erroneous and contrary to law4
(Doc. 215 at 6–9). The court disagrees and affirms the order regarding the grant of leave to amend.
Rule 15 governs amendments to pleadings, which includes complaints. See Fed. R. Civ.
P. 15(a). “Except when an amendment is pleaded ‘as a matter of course,’ as defined by the rule,
‘a party may amend its pleading only with the opposing party’s written consent or the court’s
leave.’” Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009). Courts “should freely grant leave
when justice so requires.” Id. The rule’s purpose “is to provide litigants the maximum opportunity
for each claim to be decided on its merits rather than on procedural niceties.” 	Minter v. Prime
Equip., 451 F.3d 1196, 1204 (10th Cir. 2006) (citation omitted). Therefore, “[r]efusing leave to
amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing
party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed,
or futility of amendment.” 	Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Moreover, “[a]fter a scheduling order deadline, a party seeking leave to amend must demonstrate
4 The court notes that despite Defendants’ assertion that Magistrate Judge Birzer’s order “misapplied the law” (Doc.
215 at 1), Defendants’ objections fail to specifically cite any statutes, case law or rules of procedure that were
misapplied. Kaeckell, 2019 WL 6486744 at *1. Defendants’ reply attempts to cure this deficiency by asserting that
their objections “plainly lay out the . . . legal misconceptions.” (Doc. 223 at 1.) But reciting one’s disagreement with
factual findings, even emphatically, does not constitute identification of legal error. Instead, Defendants’ objections
consist almost entirely of a dispute over the factual record. (Doc. 215 at 2-5, 6-9.) This dispute is properly reviewed
under the “clearly erroneous” standard, which requires deference be given to the magistrate judge’s factual findings.
See Hale, 2018 WL 1609552 *1.
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(1) good cause for seeking modification under Fed. R. Civ. P. 16(b)(4) and (2) satisfaction of the
Rule 15(a) standard.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240
(10th Cir. 2014). However, this good cause requirement may be satisfied “if a plaintiff learns new
information through discovery.” Id.
Here, Magistrate Judge Birzer found good cause existed to grant Plaintiff leave to amend
and add a claim of unjust enrichment because Plaintiff learned new information through discovery.
Specifically, while taking depositions in March and April of 2025, Plaintiff discovered that a
former employee, Penrod, possessed source code since the filing of this litigation—after being
repeatedly told by Defendants that neither its employees nor counsel possessed or used that very
same source code. (Doc. 193.) Plaintiff began requesting this source code through discovery in
December 2023. 	(Doc. 213 at 2.) 	Further, Magistrate Judge Birzer found that the proposed
amendment was not brought with undue delay, was not futile, did not unduly prejudice Defendants,
and was not brought in bad faith. (Doc. 213.) The court agrees.
The crux of Defendants’ objections is that Plaintiff had knowledge of or should have
known about Penrod’s possession of Plaintiff’s source code well before the March and April 2025
depositions. (Doc. 215 at 2-5.) These arguments are wholly unsupported by the record and fail to
demonstrate clear error. First, Defendants argue that Plaintiff knew Penrod had the source code
when he left employment in March 2022. 	The only evidence Defendants point to is Plaintiff’s
complaint in the Missouri Litigation where Plaintiff alleges that Penrod did not “return any paper
documents 	or 	other 	materials 	containing 	AGI 	SureTrack’s 	confidential 	and 	trade 	secret
information.” (Doc. 215-1 at 28.) This argument is unpersuasive. The allegation in the Missouri
complaint that Penrod failed to return these materials does not establish—nor could it reasonably
establish—that Plaintiff knew the specific nature and extent of what Penrod retained. Moreover,
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the discovery record in this case demonstrates that Plaintiff has been seeking this source code
diligently for years from Defendant. 	(Doc. 220 at 2-5.) The notion that Plaintiff knew about
Penrod’s possession of BinManager source code in March 2022 is contradicted by Plaintiff’s
persistent efforts to discover the code from Defendants.
Defendants also argue that Plaintiff had knowledge that Penrod possessed AGI source code
based on his February 1, 2024, discovery response in the Missouri Litigation, in which he stated
he was “in possession of old work documents and source code.” 	(Doc. 215 at 2-3, 6.) 	This
argument suffers from multiple deficiencies. Not least of which, Magistrate Judge Birzer found
that Plaintiff was repeatedly misled by Defendant’s counsel regarding the discovery responses in
the instant matter, specifically when OPI repeatedly denied that it nor its employees had any of
AGI’s source code in its possession or control. (Doc. 213 at 10.) This finding is supported by the
record, which shows that OPI responded “None” to multiple discovery requests asking whether
OPI and its employees and counsel possessed AGI code. (Docs. 194-2 at 3–4; 194-4 at 3; 194-5
at 3–4.)
Further, Penrod’s vague February 2024 reference to “old work documents and source code”
cannot reasonably be interpreted as providing Plaintiff with specific knowledge that Penrod
possessed a complete, 5GB copy of AGI’s BinManager source code library. 	(Doc. 220 at 15.)
Indeed, if this brief statement was so “direct and unambiguous” (Doc. 215 at 6), Defendants fail
to explain why Penrod did not actually produce the relevant source code in response to that
discovery request until nearly a year later, in January 2025. (Doc. 220 at 12–13.)
Most significantly, even assuming Plaintiff should have inferred from Penrod’s February
2024 response that he possessed AGI source code, this says nothing about Defendant OPI’s
possession, knowledge, and use of that code—which is the basis for the unjust enrichment claim.
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(Doc. 214 at 51.) Magistrate Judge Birzer properly found that the “depositions of Mr. Weiss and
Penrod . . . gave Plaintiff a sufficient basis to request leave to amend to allege a claim of unjust
enrichment against OPI.” (Doc. 213 at 9.) This finding is supported by the record because those
March and April 2025 depositions revealed that: (1) OPI’s CEO knew Penrod had AGI’s source
code; (2) OPI’s counsel had been in possession of the jump drive containing the code “since the
beginning of this case”; and (3) Penrod had accessed and used the code while working on an OPI
project. (Docs. 203-12; 204-6 at 22:18-25:5). These facts are what support the unjust enrichment
claim, and they were only discovered through the March and April 2025 depositions.
Finally, Defendants argue that Plaintiff knew about the source code when it was produced
in the Missouri Litigation on January 4, 2025. (Doc. 215 at 6.) But as Plaintiff explains, the files
produced on January 4 were corrupted and unreadable. (Doc. 220 9.) This is supported because
a replacement production was served by Defendant, but not until February 21, 2025. (Id.) And
less than a month later, Plaintiff’s counsel discovered that this production contained the 5GB of
BinManager source code during preparation for Penrod’s deposition. In summary, the record as a
whole supports Magistrate Judge Birzer’s finding that Plaintiff diligently pursued discovery of
Defendants’ possession of AGI source code and only upon learning the full extent of OPI’s
possession and use of the code through depositions taken in March and April 2025, did Plaintiff
seek leave to amend. Thus, based upon “the entire evidence,” the court “is left with the definite
and firm conviction that” Magistrate Judge Birzer properly granted Plaintiff leave to amend.
Ocelot Oil Corp., 847 F.2d at 1464.
In passing, Defendant argues that Plaintiff’s unjust enrichment claim is barred by the
statute of limitations. (Doc. 215 at 8.) While this defense will be addressed again below when
assessing Defendant’s motion to dismiss (Doc. 218), at this stage of the litigation, Magistrate Judge
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Birzer properly declined to assess when an injury becomes “reasonably ascertainable” as part of
an unjust enrichment claim (Doc. 213 at 13). See Thompson v. Harness, No. 11-1220-JTM, 2012
WL 2449851, at *4 (D. Kan. June 26, 2012) (“[A] Motion for Leave to Amend is not the
appropriate time to determine when [Plaintiff’s] alleged injury became reasonably ascertainable.”).
Thus, Magistrate Judge Birzer’s finding was not clearly erroneous.
Defendants next object to the portion of the order denying Defendants’ request for Rule 11
sanctions against Plaintiff. 	(Doc. 215 at 10.) 	The court again affirms. 	Defendants originally
requested sanctions because of alleged misrepresentations made by Plaintiff. (Doc. 201.) Whether
to impose Rule 11 sanctions is committed to the trial court’s sound discretion. Collins v. Daniels,
916 F.3d 1302, 1319 (10th Cir. 2019). 	“Rule 11 imposes an affirmative duty to conduct a
reasonable inquiry into the facts and the law before filing.” 	Id. at 1320 (quotation cleaned up).
The court assesses attorney conduct “under a standard of objective reasonableness—whether a
reasonable attorney admitted to practice before the district court would file such a document.” Id.
(internal quotation marks and citation omitted). In denying Defendant’s Rule 11 sanctions motion,
Magistrate 	Judge 	Birzer 	held 	that 	the 	motion 	was 	substantively 	improper 	because 	no
misrepresentation was actually pled. (Doc. 213 at 17.)
Defendants object on the grounds that Plaintiff made false statements by representing that
it recently learned about Penrod’s possession of AGI source code. (Doc. 215 at 10.) This objection
fails. As previously discussed, the “recent” knowledge Plaintiff referenced was not simply that
Penrod (who is not a Defendant in the instant matter) personally had some AGI materials, but that
OPI (who is a Defendant) had possessed the code, known about it, and that Penrod had used it in
his work for OPI. (Docs. 203-12; 204-6 at 22:18-25:5). These facts were only confirmed through
the March and April 2025 depositions. Nevertheless, Defendants’ repeated insistence that Plaintiff
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should have known about Penrod’s possession of source code years ago does not demonstrate that
Plaintiff made knowing misrepresentations about what was recently learned regarding OPI’s
possession and use of the code. 	In sum, Magistrate Judge Birzer found, and the record aptly
supports, that there were “no falsehoods or misrepresentations made by Plaintiff.” (Doc. 213 at
17.) Accordingly, Defendants’ Rule 11 motion was properly denied.
Finally, Defendants accuse Magistrate Judge Birzer of bias. (Docs. 215 at 6-7, 9, 10-11;
223 at 3-4.) The Court notes at the outset, however, that it is unclear what relief Defendants seek
through these allegations—they do not request recusal or any other specific remedy, making their
purpose to the court uncertain at best. Regardless, Defendants’ bias argument is wholly without
merit. Their first allegation is that Magistrate Judge Birzer asked more questions of Defendants’
counsel than Plaintiff’s counsel in the August 15, 2025, hearing. (Doc. 215 at 10–11.) The court
has reviewed the hearing transcript (Doc. 211) and finds no evidence that Magistrate Judge Birzer
failed to afford Defendants a fair hearing or that her rulings were the product of bias rather than a
careful review of the extensive record before her.
Defendants also suggest bias based on Magistrate Judge Birzer’s comments about
Defendants’ past discovery conduct, including her statement that she was “alarmed by Defendants’
demonstrated bad faith in attempting to place the relevant jump drive out of the reach of this
Court.” 	(Doc. 213 at 16.) 	But these comments are findings based on the evidence—that
Defendants’ counsel transferred previously requested discovery (the jump drive with AGI source
code) to the special master in the Missouri Litigation shortly after Plaintiff requested it, having
only discovered it thorough the March and April 2025 depositions. (See Docs. 194-4 at 3; 194-5
at 3–4; 203-12; 204-6 at 22:18-25:5.) This court agrees that such conduct could be construed as
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an attempt to shield evidence from discovery. In any event, Magistrate Judge Birzer describing
her concerns with Defendants’ discovery conduct does not rise to the level of judicial bias.
In summary, the court finds that Defendants have failed to show that Magistrate Judge
Birzer’s well-reasoned order was clearly erroneous or contrary to law. 	Therefore, Defendant’s
objections are overruled.5 Having overruled Defendants’ objections, the court proceeds to assess
Defendants’ motion to dismiss (Doc. 218) and Plaintiff’s related motion to strike, or, alternatively,
motion for leave to file surreply (Doc. 231).
B. Defendants’ Motion to Dismiss
As a preliminary matter, Plaintiff has filed a motion to strike, or alternatively, motion for
leave to file a surreply. (Doc. 231.) Plaintiff seeks to strike Defendants’ reply brief or alternatively
file a surreply because Defendants raised new arguments in their reply. 	First, surreplies “are
permitted only with leave of court and under ‘rare circumstances’ after good cause is shown.”
James v. Boyd Gaming Corp., No. 19-2260-DDC-JPO, 522 F.Supp.3d 892, 902-03 (D. Kan. Mar.
2, 2021) (citations omitted). Second, arguments made for the first time in a reply are generally not
considered. See United States v. Leffler, 942 F.3d 1192, 1197-98 (10th Cir. 2019) (explaining that
arguments made for the first time in a reply brief undermine the adversarial process); Perez v. City
of Cnty. of Denver, No. 23-1057, 2023 WL 7486461, at *2 n.3 (10th Cir. 2023) (upholding district
court’s refusal to consider argument made for first time in reply brief). With these precedents in
5 Defendants argue that because Penrod is a defendant in the Missouri Litigation, that he is not subject to personal
jurisdiction and therefore Magistrate Judge Birzer had no jurisdiction to retrieve the jump drive with the relevant
source code from the Special Master in the Missouri Litigation and turn it over to Plaintiff. (Doc. 215 at 9.) This
argument is waived as it is wholly non-specific because Defendant fails to cite case law, statute, procedural rules, or
the record. See Tunnell v. Gill, No. 14-3206-DDC-KGS, 2018 WL 4154130, at *1 (D. Kan. Aug. 30, 2018) (holding
a proper objection to a magistrate judge’s order “must be both timely and specific.”). And to the extent it is not
waived, this court finds no error in the magistrate judge’s management of discovery in this case—as district courts are
given wide latitude in controlling and managing discovery during litigation. See, e.g., Breakthrough Mgmt. Grp., Inc.
v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1188–89 (10th Cir. 2010); Grynberg v. Ivanhoe Energy, Inc.,
490 F. App’x 86, 102 (10th Cir. 2012).
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mind, the new arguments raised by Defendants in their reply brief will not be considered.
Accordingly, Plaintiff’s motion to strike, or alternatively, motion for leave to file a surreply is
unnecessary and therefore denied.6
Defendants argue that Plaintiff’s unjust enrichment claim should be dismissed for failing
to state a claim under Rule 12(b)(6). Specifically, Defendants argue that the claim is preempted
under the Kansas Uniform Trade Secrets Act (“KUTSA”) or the Defend Trade Secrets Act
(“DTSA”), or alternatively, is barred by the statute of limitations. 	(Doc. 218.) 	The court will
address these arguments in turn.
First, Defendants argue that AGI’s unjust enrichment claim is preempted by the KUTSA.
(Id. at 4, 6.) Defendants contend that because AGI’s claim relates to its allegations of trade secret
misappropriation, it is preempted under the plain language of the KUTSA. 	(Id. at 6.) 	Plaintiff
agrees that a claim of unjust enrichment based on property that is determined to be a trade secret
is preempted under the KUTSA; however, Plaintiff’s unjust enrichment claim presents an alternate
theory for relief, that is “to the extent any of the confidential information Defendants took from
AGI SureTrack does not rise to the level of a trade secret.” (Doc. 224 at 5–6.) Defendants argue
in reply that Plaintiff’s attempt to re-cast alleged trade secrets as “confidential and proprietary
information” is “nothing more than an effort to avoid statutory preemption,” as the complaint
repeatedly identifies categories that fall squarely within KUTSA’s definition of a trade secret.
(Doc. 230 at 6.) The court holds Plaintiff’s claim is not preempted.
The KUTSA contains a preemption provision stating: “[T]his act displaces conflicting tort,
restitutionary and other law of this state providing civil remedies for misappropriation of a trade
secret.” K.S.A. § 60-3326(a). However, the statute carves out an exception, providing that “[t]his
6 The court notes that even had it considered the new arguments in Defendants’ reply as well as Plaintiff’s surreply, it
would not have changed the outcome of the court’s decision. (Docs. 230; 231-1.)
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act does not affect . . . other civil remedies that are not based upon misappropriation of a trade
secret.” Id. § 60-3326(b)(2). While the KUTSA provides the exclusive remedy for civil claims
that are based on the misappropriation of a statutorily defined trade secret (see id. § 60-3320), it
does not preempt tort claims that are based on the misappropriation of information falling outside
that statutory definition. LendingTools.com, Inc. v. Bankers’ Bank, N.A., 426 P.3d 538, 546 (Kan.
Ct. App. 2018) (unpublished); Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 402-03 (2011)
(holding the KUTSA does not prohibit misappropriation of “confidential information” that does
not meet the statutory definition of a trade secret.). Thus, whether the KUTSA preempts Plaintiff’s
claim turns on whether facts have been pled that plausibly state Defendants misappropriated non-
trade secrets.
In LendingTools, the court explained that plaintiff “pleaded alternative theories of relief,”
with the primary being misappropriation of trade secrets under KUTSA and alternative theories
seeking recovery even if “the jury determines that the information is not a trade secret.” 426 P.3d
at 547. The court found it “premature” for the lower court to decide the issue of preemption prior
to the jury determining whether “the information that [plaintiff] sought to protect met the
statutorily [sic] definition of trade secret.” Id.
Similarly here, Plaintiff’s unjust enrichment claim is pleaded as an alternative theory of
relief. 	The SAC alleges that OPI “saved costs it would have expended to acquire similar
information through its acquisition, possession, and use of AGI’s confidential information.” (Doc.
214 ¶¶ 293-294.) 	Plaintiff refers to “confidential and proprietary information” throughout, and
while this may or may not ultimately satisfy the statutory definition of trade secret—such a holding
would be premature based on the face of the complaint. 	See LendingTools, 426 P.3d at 547.
Taking the well-pleaded facts and reasonable inferences in the light most favorable to Plaintiff, the
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court cannot clearly discern that all information at issue necessarily constitutes a trade secret under
the KUTSA’s definition. 	See Archuleta, 523 F.3d at 1283 (10th Cir. 2008). 	Whether the
information alleged meets the statutory requirements is a factual question that cannot be resolved
at this stage of the proceedings. See Harvey Barnett v. Shidler, 338 F.3d 1125, 1129 (10th Cir.
2003) (“Trade-secret status is a question of fact.”). 	Plaintiff’s claim therefore survives as a
permissible alternative theory of relief.
Defendants also argue that AGI’s unjust enrichment claim is preempted by the DTSA. (Id.
at 4, 6.) Defendants provide no support for this assertion and understandably so. The DTSA states
that, with a single exception not relevant here, it “shall not be construed to preempt or displace any
other remedies, whether civil or criminal, provided by United States Federal [or] State . . . law for
the misappropriation of a trade secret.” 18 U.S.C. § 1838. The court agrees with Plaintiff that if
DTSA expressly states it does not preempt state law misappropriation claims involving trade
secrets, it likewise would not preempt state law misappropriation claims involving non-trade
secrets. Thus, whether the “confidential and proprietary information” alleged by Plaintiff is a trade
secret or not, it is not preempted by the DTSA. (Doc. 214 ¶¶ 293-294.)
Second, Defendants argue that AGI’s unjust enrichment claim is barred by the statute of
limitations. (Doc. 218 at 7.) Under Kansas law, “unjust enrichment arises when (1) a benefit has
been conferred upon the defendant, (2) the defendant retains the benefit, and (3) under the
circumstances, the defendant’s retention of the benefit is unjust.” Est. of Draper v. Bank of Am.,
N.A., 205 P.3d 698, 706 (Kan. 2009) (citing In re Est. of Sauder, 156 P.3d 1204, 1220 (Kan. 2007)).
A “statute of limitations defense may be appropriately resolved on a Rule 12(b) motion when the
dates given in the complaint make clear that the right sued upon has been extinguished.” Sierra
Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016) (internal quotation marks
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omitted). 	Stated another way, the “court may grant a motion to dismiss based on a statute of
limitations defense only when the complaint itself admits all the elements of the affirmative
defense by alleging the factual basis for those elements.” Herrera v. City of Espanola, 32 F.4th
980, 991 (10th Cir. 2022) (internal quotation marks omitted).
In the current matter, the parties dispute whether a two- or three-year statute of limitations
applies to an unjust enrichment claim under Kansas law. (Docs. 218 at 7; 224 at 11.) However,
the court need not resolve this dispute7 because even applying the shorter two-year period,
Plaintiff’s claim is timely. Thus, the court must first determine when the unjust enrichment claim
was brought for statute of limitations analysis. 	Here, the claim was brought on May 12, 2025,
when Plaintiff filed its motion seeking leave to amend. 	(Doc. 193.) 	This is because a claim
brought in an amended complaint is considered to have been brought on the date the motion to
amend was filed. 	See Kwang I. Lee v. City of Leawood, Kansas, No. 08-2242-KHV, 2009 WL
2106104, at *3 (D. Kan. July 16, 2009) (noting “an amended complaint is deemed filed on the
date plaintiff seeks leave to amend”) (citing Wallace v. Sherwin Williams Co., Inc., 720 F. Supp.
158, 159 (D. Kan. 1988) (“[P]laintiff’s amended complaint was effectively filed when his motion
for leave to file an amended complaint was filed.”)).
The question therefore becomes whether all three elements of unjust enrichment were
present before May 12, 2023—two years prior to the filing of Plaintiff’s motion to amend. 	To
answer that question, the court must determine when the underlying claim accrued. “The statute
of limitations begins to run when all of the[] elements [for an unjust enrichment claim] are
7 Compare Murray v. Miracorp, Inc., 318 Kan. 615, 623, 545 P.3d 1009, 1015 (2024) (holding a group of claims,
including unjust enrichment, as subject to a two-year statute of limitations) with Black v. Union Pac. R.R. Co., No.
23-CV-1218-EFM, 2024 WL 1604620, at *11 (D. Kan. Apr. 12, 2024) (holding that an unjust enrichment claim is
properly characterized as an implied contract claim that is subject to a three-year statute of limitations).
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present.” Est. of Draper, 205 P.3d at 706. In other words, an unjust enrichment claim first accrues
at “the earliest time the plaintiff had a right to maintain a legal action.” Id. at 715.
Here, the alleged benefit that OPI received was Penrod’s improper acquisition and use of
AGI’s BinManager source code “in the scope of his job duties as an OPI employee.” (Doc. 214 ¶
165.) And at this stage of the proceeding, the question of when OPI came to learn about Penrod’s
possession of the BinManager source code is answered by looking to the SAC. See Herrera, 32
F.4th at 991. The SAC alleges that Mr. Weiss, OPI’s current CEO, knew that Penrod improperly
possessed the source code “since at least the outset of this litigation,” which commenced on August
28, 2023, upon the filing of the original complaint. (Doc. 214 ¶ 162; see Doc. 1.) Thus, Plaintiff’s
SAC alleges that the earliest all elements of the unjust enrichment claim were present—that is,
when the benefit (access to the BinManager source code) was conferred upon the defendant, OPI—
was not until August 28, 2023. And the motion to amend was filed well within two years of that
date. 	(Doc. 193.) 	While, as Defendants argue, it is plausible that the elements for an unjust
enrichment claim were present prior to this date, Defendants have not pointed to facts in the
complaint that clearly indicate “the right sued upon has been extinguished.” Sierra Club, 816 F.3d
at 671. 	Accordingly, Plaintiff's allegations demonstrate that its unjust enrichment claim was
brought within the shorter of the two statutes of limitations.
IV. 	Conclusion
Defendants’ 	objections 	to 	the 	magistrate’s 	order 	(Doc. 	215) 	are 	OVERRULED;
Defendants’ motion to dismiss (Doc. 218) is DENIED; and Plaintiff’s motion to strike, or, in the
alternative, motion for leave to file surreply (Doc. 231) is DENIED.
IT IS SO ORDERED. Dated this 28th day of January, 2026.
_s/ John W. Broomes_________________
JOHN W. BROOMES
CHIEF UNITED STATES DISTRICT JUDGE
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