Full opinion text
MEMORANDUM AND ORDER KEITH P. ELLISON, District Judge. Pending before the Court are Defendants’ Joint Motion to Dismiss for Plaintiffs Failure to State a Claim (Doc. No. 91); Defendants Benton T. Knobloch and Wellbore Energy Solutions, LLC’s Motion for Partial Summary Judgment as a Matter of Law (Doc. No. 181); Defendants’ Joint Expedited Motion for Protection from Discovery of Proprietary Trade Secret Information (Doc. No. 300). After considering the parties’ filings, all responses and replies thereto, and the applicable law, the Court finds that Defendants’ motion to dismiss should be granted in part and denied in part, Defendants’ motion for partial summary judgment should be granted in part and denied in part, and Defendants’ joint expedited motion for protection should be denied. I. BACKGROUND This suit involves the alleged misappropriation of trade secrets and violation of non-compete agreements by former employees of Plaintiff M-I LLC (“M-I”), including Chad Stelly, Stephen Squyres, and Benton T. Knobloch, three of the Defendants in this case. M-I LLC (“M-I”) is an oilfield contractor that provides “products and services to oilfield drillers and operators who are involved in successful completion of down-hole operations and the cleanout of well-bores.” (Second Am. Compl., Doc. No. 355, ¶ 8.) Defendants Chad Stelly (“Stelly”) and Stephen Squyres (“Squyres”) were employees of M-I at its Houston offices. Both employees signed trade secret agreements and covenants not to compete during their employment at M-I. Pursuant to these and other agreements, Stelly and Squyres agreed to maintain confidential all of M-I’s trade secrets and proprietary information both during employment and afterward, and also agreed not to compete against M-I for a period of two years after termination of employment. (Id. ¶ 9.) In their employment capacity, Stelly and Squyres specialized in rental and technical support of wellbore cleanout equipment. Stelly and Squyres promoted tools to M-I customers throughout the Gulf of Mexico, Texas, Louisiana, and Alabama. M-I alleges that it “provided and entrusted” to Stelly and Squyres extensive trade secret and other proprietary information, including tool drawings, designs, and specifications. (Id. ¶¶ 10-11.) Defendant Benton T. Knobloch (“Knob-loch”) was an employee with Specialised Petroleum Services International, Inc. f/k/a Global Completion Services, Inc. (“SPS/GCS”), which was a subsidiary of SPS Petroleum Services Group Limited (“SPS”). M-I acquired SPS and SPS/GCS on August 2, 2006, and received assignment of all contractual rights. (Id. ¶ 18.) Knobloch signed agreements promising not to disclose any confidential information, solicit SPS/GCS’s customers, interfere with SPS/GCS’s customer relationships, or compete with SPS/GCS. M-I avers that SPS/GCS and M-I gave Knob-loch access to confidential information, including tool drawings, designs, and specifications. On August 21, 2006, Knobloch resigned his position with M-I, and was thereafter terminated. Knobloch was Manager of Sales for the Americas when his employment with M-I ended. M-I avers that, within one month of leaving his job at M-I, Knobloch formed a new company, Defendant Wellbore Energy Solutions, LLC (“WES”), and began serving as WES’s president. (Id. ¶ 24.) After Knobloch formed WES, M-I alleges that he began “raiding” employees from M-I, ultimately hiring a total of thirteen employees from M-I. Squyres joined WES in 2008, and Stelly joined in 2009. M-I asserts that Defendants have both stolen M-I’s trade secrets and other confidential information, and violated their respective covenants not to compete. (Id. ¶¶ 15-16.) M-I believes that WES designed twelve of its wellbore tools by relying on M-I’s trade secrets. Based on these averments, M-I brings fourteen counts against Stelly, Squyres, Knobloch, and WES. Those counts include: breaches of various employment agreements, including trade secret agreements, covenants not to compete, and confidentiality contracts; common law misappropriation of trade secrets; tortious interference with M-I’s customer contracts, prospective business relations, and employment contracts; breach of fiduciary duty; violations of the Texas Theft Liability Act, Tex. Crv. Prac. & Rem.Code Ann. §§ 134.001-134.005 (Vernon 2005); conspiracy; unfair competition by misappropriation; violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; and conversion. Defendants have filed a motion to dismiss M-I’s claims, arguing that they fail to state a claim upon which relief can be granted. They have also filed a motion for summary judgment, arguing that M-I’s state tort claims are preempted by federal copyright law, and that Knobloch’s covenants not to compete are unenforceable because they are unreasonable restraints of trade. Last, Defendants have filed a motion for protection, arguing that M-I has not made the requisite showing of necessity to obtain trade secret materials in discovery. The Court takes up each of the arguments in turn. II. MOTION TO DISMISS Defendants have filed a joint motion to dismiss for failure to state a claim. They argue that M-I’s complaint fails to comply with Rule 8 under the Supreme Court’s Twombly and Iqbal decisions. (Defs.’ Joint Mot. to Dismiss for Pl.’s Failure to State Claim, Doc. No. 91, ¶ 14.) Specifically, Defendants argue that the complaint does not contain sufficient allegations to state a claim for misappropriation of trade secrets, fails to state facts in support of MI’s three tortious interference claims, and fails to state more than legal conclusions for the remaining ten claims. (Id. ¶¶ 15-19.) M-I responds that Defendants’ motion is untimely, and in any case, that their pleading meets Rule 12(b)(6) standards. A. Legal Standard A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must pro-. vide the plaintiffs grounds for entitlement to relief — including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That is, “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. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). 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. (citing Twombly, 550 U.S. at 556,127 S.Ct. 1955). The plausibility standard is not akin to a “probability requirement,” but asks for more than a sheer possibility that a defendant has acted unlawfully. Id. A pleading need not contain detailed factual allegations, but must set forth more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). When considering a Rule 12(b)(6) motion to dismiss, a court must “accept the complaint’s well-pleaded facts as true and view them in the light most favorable to the plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir.2004); see also Sonnier v. State Farm Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir.2007). A district court can consider the contents of the pleadings, including attachments thereto, as well as documents attached to the motion, if they are referenced in the plaintiffs complaint and are central to the claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir.2000). Furthermore, a Court may refer to matters of public record when deciding a motion to dismiss. Chauhan v. Formosa Plastics Corp., 212 F.3d 595, 595 (5th Cir.2000). Ultimately, the question for the court to decide is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. The court must accept well-pleaded facts as true, but legal conclusions are not entitled to the same assumption of truth. Iqbal, 129 S.Ct. at 1950 (citation omitted). But the court should not “ ‘strain to find inferences favorable to the plaintiffs’ ” or “accept ‘conclusory allegations, unwarranted deductions, or legal conclusions.’ ” R2 Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005) (quoting Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 362 (5th Cir.2004)). Importantly, the court should not evaluate the merits of the allegation, but must satisfy itself only that plaintiff has adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.2004). B. Analysis The Court notes, at the outset, that subsequent to Defendants’ motion to dismiss, M-I amended its complaint. The live pleading is M-I’s Second Amended Complaint (Doc. No. 355). The Court will apply the motion to dismiss to the live pleading. 1. Waiver The Court first considers whether Defendants have waived their Rule 12(b)(6) arguments by filing responsive pleadings before moving to dismiss. Defendants answered M-I’s original complaint. {See Doc. Nos. 7, 9, & 28.) They now move to dismiss M-I’s amended complaint. M-I argues that Defendants have waived their Rule 12(b)(6) arguments, because the rule “expressly mandates” that a motion brought pursuant to the rule “ ‘shall be made before pleading.’ ” (PI. M-I LLC’s Resp. to Defs.’ Mot. to Dismiss for Failure to State a Claim Pursuant to FRCP 12(b)(6) & Mot. for Leave to File Am. Compl., Doc. No. 113, at 2 (quoting Fed. R. Civ. P. 12(b)(6).) Because Defendants already filed responsive pleadings to M-I’s original complaint, M-I argues that they may not now oppose an amended complaint. Defendants respond that their motion is timely and not waived. They argue that, because Defendants are allowed to file a responsive pleading to M-I’s amended complaint, they are also allowed to “challenge that complaint’s validity under Rule 12(b)(6).” (Defs.’ Reply to Pl.’s Resp. to Their Joint Mot. to Dismiss for Failure to State a Claim, Doc. No. 180, ¶ 2.) Defendants rely on Bromfield v. McBurney in arguing that their motion to dismiss is timely. In that case, the defendants moved to dismiss plaintiffs original complaint. The court subsequently ordered plaintiff to file an amended complaint curing certain deficiencies. The plaintiff did so, and defendants filed a second motion to dismiss. Plaintiff responded that the defendants motion should be denied, because only one 12(b)(6) motion could be filed. The court rejected that argument, noting that Rule 12(b)(6) “merely provides that a motion asserting a defense for failure to state a claim upon which relief can be granted, or any of the other specific defenses set forth therein, ‘must be made before pleading if a responsive pleading is allowed.’” 2008 WL 2746289, at *1 (W.D.Was. July 8, 2008) (quoting Fed. R.Civ.P. 12(b)). Because the plaintiff had filed an amended complaint, the court held that the defendants were once again entitled to challenge its validity under Rule 12(b)(6). Though Bromfield supports Defendants’ general argument that an amended complaint grants defendants the opportunity to challenge its validity anew under Rule 12(b)(6), the circumstances of the cases are different. The defendants in Bromfield never answered the original complaint. Instead, they challenged both the original and amended complaint on Rule 12(b)(6) grounds. In this case, by contrast, each Defendant answered M-I’s original complaint, and urged this Court to dismiss on 12(b)(6) grounds only after the amended complaint had been filed. The Court does not have to decide that question, however, because Defendants prevail for another reason. Each Defendant raised the defense of failure to state a claim upon which relief can be granted in their answers. {See Chad Stelly’s Am. Answer, Doc. No. 7, ¶ 89 (“Stelly affirmatively asserts that M-I’s claims are barred, in whole or in part, because M-I has failed to state a claim upon which relief may be granted”); Stephen Squyres’ Am. Answer, Doc. No. 9, ¶ 89 (same); Defs. Benton Knobloch & Wellbore Energy Solutions, LLC’s Original Answer and Counterclaim, Doc. No. 28, ¶ 95 (“Knob-loch and [WES] plead failure to state a claim”).) Rule 12(b) provides that “[n]o defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading.” Rule 12(i) provides that “[i]f a party so moves, any defense listed in Rule 12(b)(l)-(7) — whether made in a pleading or by motion ... must be heard and decided before trial unless the court orders a deferral until trial.” Fed. R. Civ. P. 12(i). Because the Defendants’ motion to dismiss is based on a defense they raised originally in their answers, M-I’s waiver argument fails. See Desperado Motor Racing & Motorcycles, Inc. v. Robinson, 2010 WL 2757523, at *3 (S.D.Tex. July 13, 2010). 2. Misappropriation of trade secrets Defendants aver that M-I has failed to plead adequately its misappropriation of trade secrets claim. Under Texas law, the elements of misappropriation of trade secrets are: (1) a trade secret existed, (2) the trade secret was acquired through a breach of a confidential relationship or discovered by improper means, and (3) the defendant used the trade secret without authorization from the plaintiff. CQ, Inc. v. TXU Mining Co., 565 F.3d 268, 273 (5th Cir.2009) (quoting Gaia Techs. Inc. v. Recycled Prods. Corp., 175 F.3d 365, 376 (5th Cir.1999)). A trade secret is defined as a “ ‘formula, pattern, device or compilation of information used in a business, which gives the owner an opportunity to obtain an advantage over his competítors who do not know or use it.’ ” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir.2007) (quoting Taco Cabana Int’l v. Two Pesos, Inc., 932 F.2d 1113, 1123 (5th Cir.1991)). M-I’s Second Amended Complaint alleges that Stelly, Squyres, and Knobloch had access to “nonconformance reports, tool drawings, tool designs, tech units, tool utility reports, scrap reports, job proposals and procedures, sales forecasts, job tracker, customer preferences, tool research and developments and project information,” and other confidential information. (Doc. No. 355, ¶ 11; see also id. ¶ 19.) MI further alleges that Defendants induced Stelly to misappropriate M-I’s technology and trade secrets for use in WES’s business operations, and that: In the days before he notified M-I that he was quitting, Stelly connected external memory devices to his M-I laptop and transferred files to these devices from the laptop. A forensic analysis of Stelly’s External Hard Drive and USB Drive revealed that M-I’s files were on these devices and that some of these files had been transferred from Stelly’s laptop. In addition, on March 8, 2009, Stelly began downloading M-I’s files on to his M-I laptop immediately after ending a cell phone conversation with Knob-loch. Similarly, on March 6, 2009, Stelly called Knobloch minutes before he plugged in an external memory device to his laptop. Because this computer activity occurred after Stelly accepted employment with WES and in close proximity to phone calls with Knobloch, M-I has reason to believe that Stelly was accessing M-I’s Confidential Information and files for his and for WES’s use. (Doc. No. 355, ¶ 15.) Finally, M-I maintains that Knobloch resigned from M-I and immediately formed WES. (Id. ¶ 24.) M-I provides a list of fourteen specific tools whose designs and technologies were allegedly used by WES. (Id. ¶ 21.) Nevertheless, Defendants argue that MI has failed to allege facts to support its claim because there are no facts showing what trade secret was misappropriated, that Nil’s trade secrets were actually used or disclosed by Defendants, and what injury was suffered by M-I. The Court disagrees. On the contrary, M-I has alleged that its designs and technologies related to fourteen tools constitute trade secrets, that Defendants took the information in violation of their confidentiality agreements, and have used it to build its own tools. While, of course, it is true that at least some of M-I’s allegations rest on circumstantial factual support, the Court believes that, through discovery, M-I may be able to collect evidence of the allegedly unlawful behavior to more fully support its claims. Of course, in the final calculus, it may not be able to prove its allegations and the case could very well be dismissed on a future motion for summary judgment or at trial. What is material at this stage, however, is that M-I has alleged facts that “ ‘raise a right to relief above the speculafive level,’ ” thereby sufficiently stating its claim. Cuvillier v. Taylor; 508 F.3d 397, 401 (5th Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The Court finds that M-I has done so. 3. Tortious interference with customer contracts Count Four alleges tortious interference with M-I’s customer contracts. A plaintiff must establish the following elements to succeed on a tortious interference with contract claim: (1) the existence of a contract subject to interference, (2) willful and intentional interference, (3) that proximately causes damage, and (4) actual damage or loss. Specialties of Mex. Inc. v. Masterfoods USA 2010 WL 2488031, at *9 (S.D.Tex. June 14, 2010) (citing All Am. Tel, Inc. v. USLD Commc’ns, Inc., 291 S.W.3d 518, 531 (Tex.App.-Fort Worth 2009, pet. denied)). Defendants argue that there are “no facts identifying the contracts allegedly interfered with, how the alleged interference proximately caused injury to M-I, ... the identity of the ... third-person interfered with, or actual damage or loss incurred.” (Doc. No. 91, ¶ 18.) The Court agrees with Defendants. After combing through M-I’s complaint, the Court can discern only two passages that even tangentially put forth facts relating to Nil’s tortious interference with customer contracts claim. First, M-I alleges: Stelly and Squyres are ... soliciting MI’s customers based on the relationships they formed and further developed while at M-I. Stelly has solicited and/or is soliciting and renting competing tools to: BP p.l.c., Chevron Corporation, Devon Energy Corporation, Exxon Mobil Corporation, Walter Oil and Gas Corporation, Marathon Oil Corporation, and Eni S.p.A. Squyres is soliciting and renting WES tools primarily to BP p.l.c. just as he did while at M-I. (Doc. No. 355, ¶ 13.) Second, M-I asserts: The Defendants’ misappropriation, breaches of contract, and interference has caused M-I substantial harm. M-I has learned that it lost at least one well to WES when BP awarded the ThunderHorse Project 778 #2 Well to WES instead of M-I because of Squyres’s sales efforts. M-I has provided Well-bore cleanout tools and services to BP for other ThunderHorse wells, and expected to provide the same for 778 # 2. Defendants have unfairly competed and continue to unfairly compete with M-I on other projects using M-I’s former employees and M-I’s Confidential Information. WES was awarded the ThunderHorse 778 # 2 because of Squyres’s breach of his contracts with M-I, WES’s interference with those contracts, the inevitable use and disclosure of and continued use of M-I’s Confidential Information, and the use of M-I’s tool designs. (Id. ¶29.) The Court finds that these pleadings fail for two reasons. First, while M-I avers that it “had valid contracts with certain customers,” it fails entirely to allege or designate a specific contract that is the subject of interference. From the facts recited above, the reader might gather that M-I had business relationships with at least seven different businesses that have since been solicited by, or entered into agreements for services with, WES. Similarly, a reader may surmise that M-I has provided wellbore cleanout tools to BP and maintained some sort of expectation to do the same on the ThunderHorse project. None of these contentions, however, alleges the existence of a contract between M-I and any of these businesses that obligated them to use MI’s wellbore cleanout services. Without identifying an existing contract that is subject to interference, M-I has failed to plead adequately the first element of a tortious interference with contract claim. Second, the Court finds that M-I has failed to adequately plead the proximate cause element of this cause of action. To show proximate cause, “a plaintiff must allege that ‘the defendant took an active part in persuading a party to a contract to breach it.’ ” Hambric Sports Mgmt., LLC v. Team AK, Inc., 2010 WL 2605243, at *9 (N.D.Tex. June 29, 2010) (citing Amigo Broad., LP v. Spanish Broad. Sys., Inc., 521 F.3d 472, 489 (5th Cir.2008)). “ ‘Merely entering into a contract with a party with the knowledge of that party’s contractual obligations to someone else is not the same as inducing a breach.’ ” Id. “ ‘It is necessary that there be some act of interference or of persuading a party to breach, for example by offering better terms or other incentives, for tort liability to arise.’ ” Id. (quoting Davis v. HydPro, Inc., 839 S.W.2d 137, 139 (Tex.App.-Eastland 1992, writ denied)). Here, it is alleged in M-I’s complaint that Stelly and Squyres, in their capacity as salesmen at WES, are soliciting M-I customers for wellbore cleanout projects. Nowhere does M-I set forth facts that allege any kind of interference or persuasion of a party to breach any existing contracts with M-I. There are no facts suggesting that any Defendant has offered better terms or other incentives in order to induce companies to breach their contracts. M-I has therefore failed to plead adequately that Defendants are the proximate cause of any loss of existing contractual relations with companies. Thus, the Court finds that M-I has not set forth sufficient factual matter that states a plausible claim for relief. Iqbal, 129 S.Ct. at 1949. The Court, however, will allow M-I to amend its complaint. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) (“[District courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable of the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal.”) The Court believes that additional allegations could cure the existing deficiencies. 4. Tortious interference with prospective business relations Count Five alleges tortious interference with prospective business relations. In order to establish this claim, a plaintiff must prove: (1) a reasonable probability that the plaintiff would have entered into a business relationship; (2) an independently tortious or unlawful act by the defendant that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring or the defendant knew the interference was certain or substantially certain to occur as a result of the conduct; and (4) the plaintiff suffered actual harm or damages as a result of the defendant’s interference. Specialties of Mex. Inc. v. Masterfoods USA, 2010 WL 2488031, at *10 (S.D.Tex. June 14, 2010). Defendants argue that M-I’s claim fails because M-I fails to set forth facts showing “the reasonable probability that M-I would have entered into a business relationship with third persons, independently tortious or unlawful conduct, the identity of the prospective business relationship ..., or actual damage or loss incurred.” (Doc. No. 91, ¶ 18.) Defendants further allege that the facts in support of M-I’s tortious interference claim are threadbare recitals of the elements of each cause of action, supported by conclusory statements, and thereby run afoul of Twombly and Iqbal’s pleading standard. M-I counters that it “has produced documents” during discovery “showing that it had a relationship with BP and that it submitted a quote” on the BP ThunderHorse Well project. (Doc. No. 113, ¶ at 10.) The Court may not look to documents not referenced or included in the pleadings when considering a Rule 12(b)(6) motion to dismiss. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir.2000). Accordingly, it is of no moment that M-I was able to provide factual support for its claim outside the pleadings. The purpose of a motion to dismiss for failure to state a claim is to ensure that Defendants have notice of the precise claims against them. Providing piecemeal factual support throughout the life of the case is not an acceptable substitute for Rule 12(b)(6)’s requirement that a plaintiffs pleading contain factual matter that states a “ ‘claim to relief that is plausible on its face.’ ” Iqbal, 129 S.Ct. at 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The Court will therefore refer to the pleadings in considering whether M-I has failed to state a claim upon which relief may be granted. After examining the pleading, the Court concludes that this tortious interference claim falls short of the Rule 12(b)(6) pleading standard. M-I fails to set forth any allegations establishing a reasonable probability that it would have entered into a business relationship. The closest it comes -is its averment that it “has provided [w]ellbore cleanout tools and services to BP for other ThunderHorse wells, and expected to provide the same for 778 #2,” but instead lost the project to WES. (Doc. No. 355, ¶ 29.) This statement, however, does not plead a reasonable probability that M-I and BP would have entered into a contractual relationship for the ThunderHorse project. Furthermore, M-I fails to plead any other business relationships that are the subject of this claim. The Court also finds that M-I has failed to adequately plead the third claim, which requires a plaintiff to establish that the defendant committed an independently tortious act with a conscious desire to prevent the relationship from occurring, or knew the interference was certain or substantially certain to occur as a result of the conduct. M-I has not pled that Defendants committed misappropriation and/or breach of fiduciary duty with a conscious desire to cause, or with the certain knowledge that, it was preventing Mi’s specific business relationship from forming. For these reasons, M-I’s tortious interference with prospective business relations claim is dismissed. M-I may replead. 5. Tortious interference with MI’s employment contracts Count Six alleges tortious interference with M-I’s employment contracts. The elements of a tortious interference with contract claim are: (1) the existence of a contract subject to interference, (2) willful and intentional interference, (3) that proximately causes damage, and (4) actual damage or loss. Specialties of Mex. Inc. v. Masterfoods USA, 2010 WL 2488031, at *9 (S.D.Tex. June 14, 2010) (citing All Am. Tel., Inc. v. USLD Commc’ns, Inc., 291 S.W.3d 518, 531 (Tex.App.-Fort Worth 2009, pet. denied)). The Court is uncertain about Defendants’ specific objections to this Count. Most of Defendants’ objections appear to target M-I’s other two tortious interference claims, discussed above. In any event, the Court considers whether this claim has been adequately pled pursuant to Defendants’ argument that all tortious interference claims ought to be dismissed. M-I identifies several contracts as the subject of this interference claim, including the M-I Trade Secret Agreement and Covenant Not to Compete, M-I Employee Invention and Confidential Information Agreement, GCS and SPS Confidentiality Agreements, and/or at-will employment agreements. (Doc. No. 355, ¶ 59.) The Court finds that the first element is satisfied. Next, as to a showing of willful and intentional interference, M-I pleads, “WES and its agents, including Knobloch and Squyres, knew or had reason to know of those of [the] contracts, specifically the employment agreement^] and Trade Secret Agreement and Covenant Not to Compete, because Squyres and other WES agents had essentially the same agreements with M-I and WES.” (Doc. No. 355, ¶ 60.) M-I alleges further that a number of its employees left M-I to join WES. (Id. ¶¶ 24-28.) Finally, M-I alleges: On March 3, 2009, Knobloch induced Stelly to breach his employee agreement with M-I. Before he quit, Stelly told WES and Knobloch that Stelly had a noncompete agreement with M-I. WES and Knobloch willfully disregarded that M-I contract just as it had disregarded the previously raided employees’ contracts with M-I and as it has continued to disregard them. (Id. ¶27.) M-I provides enough factual allegations to support the second element of its tortious interference claim. Third, in order to prove proximate damage, M-I has pled that “Knobloch and WES induced each of aforementioned employees and possibly others to quit M-I for increased compensation and/or other benefits or a total increased employment package.” (Doc. No. 355, ¶ 28.) Finally, M-I pleads actual damage in the form of lost employees and the cost of retraining new employees. Accordingly, the Court finds that M-I has alleged and provided factual support for each element of its tortious interference with employment contracts claim, thereby stating a plausible claim for relief. Iqbal, 129 S.Ct. at 1949. The Court denies Defendants’ motion to dismiss on this claim. 6. The remaining arguments Defendants do not provide specific arguments for dismissal of each of the remaining claims, but instead aver generally that “the remaining 10 claims are no more than conclusions, which are not entitled to the assumption of truth and are unsupported by factual allegations.” (Doc. No. 91, ¶ 19.) Defendants then list a series of arguments aimed at various causes of action. The Court considers each argument in turn: a. Texas Theft Liability Act Defendants argue that there are no allegations in support of an unlawful appropriation of trade secrets under Texas Penal Code § 31.05, which is required in order to support M-I’s Texas Theft Liability Act claim. Section 31.05 provides that a person commits an offense if, without the owner’s consent, he knowingly steals a trade secret, makes a copy of an article representing a trade secret, or communicates or transmits a trade secret. Tex. Penal Code Ann. § 31.05 (Vernon 2003). As stated above, M-I alleges that, in the days before Stelly notified M-I he was quitting, he transferred files onto an external memory device. (Doc. No. 355, ¶ 15.) The Court finds that this factual allegation is sufficient to support a claim of theft of trade secrets under the Texas Penal Code, which in turn supports M-I’s Texas Theft Liability Act claim. The Court overrules Defendants’ objections on this point. b. Unfair competition Count Ten alleges unfair competition by misappropriation against all Defendants. Defendants insist that there are no facts in support of unfair competition. Specifically, Defendants aver that “the complaint is silent on facts to show the creation of MI’s trade secret information through extensive time, labor, skill and money, that Defendants used M-I’s trade secrets in competition with M-I or commercial damage with M-I.” (Doc. No. 91, ¶ 19.) In order to show unfair competition by misappropriation, a plaintiff must establish: (1) the creation by plaintiff of a product through extensive time, labor, skill, and money; (2) the use of that product by defendant in competition with plaintiff, thereby giving the defendant a special competitive advantage because he was burdened with little or none of the expense incurred by plaintiff in the creation of the product; and (3) commercial damage to plaintiff. Cable Elecs., Inc. v. N. Am. Cable Equip., Inc., 2010 WL 1541504, at *3 (N.D.Tex.2010) (citing Alcatel USA Inc. v. DGI Techs., 166 F.3d 772, 788 (5th Cir.1999)). M-I emphasizes its efforts in creating wellbore cleanout products in several places in the complaint. For example, MI avers, “M-I spent considerable amounts to create information [including tool drawings, designs, sales forecasts, tool research and development, market strategies, etc.] This information is M-I’s institutional knowledge and history of its wellbore cleanout tool business. It is the product of many years of experience, dozens of skilled employees’ labor, and millions of dollars spent in research, testing and application.” (Doc. No. 355, ¶ 12.) With information that M-I acquired in its asset purchase agreement with SPS/GCS, M-I states, “SPS/GCS spent considerable amounts of time and money to create this information and develop it. M-I spent a substantial amount of money to obtain the rights to this information. This information is SPS/ GCS’s and M-I’s institutional knowledge and history of its wellbore cleanout tool business. It is the product of many years of experience, dozens of skilled employees’ labor, and millions of dollars spent.” (Id. ¶ 19.) With respect to M-I’s tool designs, M-I pleads, “M-I spent considerable amounts of time and money to research and develop this information and keep it secret. M-I employs engineers and designers to research and develop these tool designs. These designers and engineers take years to research and develop a tool, and it takes substantial additional time and money to test and market these tools.” (Id. ¶ 22.) The Court finds that these averments are sufficient to plead the element of expended time, labor, skill, and money. Though M-I’s allegations are not particularly detailed at this point, the Fifth Circuit has instructed that they need not be. What matters, instead, is that M-I sets forth facts that “ ‘raise a right to relief above the speculative level.’ ” Cuvillier, 503 F.3d 397, 401 (5th Cir.2007) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The Court concludes that, as to this element, M-I has done so. Similarly, the Court finds that M-I has pled that WES is using M-I’s trade secrets in competition with M-I, and that MI has suffered commercial damage. M-I has listed twelve WES tools that it claims are being used in competition with its own tools. (Doc. No. 355, ¶ 21.) Further, it has alleged that it has lost at least one project, the BP Thunder Horse well, resulting in commercial damage. (Id. ¶ 29.) The Court finds that, through its allegations, M-I has set forth a plausible basis for recovery under a theory of unfair competition by misappropriation. The Court overrules Defendants’ objections on this point. c. Computer fraud and abuse Count Eleven alleges violations under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. The CFAA prohibits, among other conduct, the unauthorized access to a “ ‘protected computer’ for the purposes of obtaining information, causing damage, or perpetrating fraud.” Quantlab Techs. Ltd. (BVI) v. Godlevsky, 719 F.Supp.2d 766, 774, 2010 WL 2593669, at *5 (S.D.Tex. June 23, 2010). A “protected computer” is a “computer ... which is used in or affecting interstate or foreign commerce or communication.” 18 U.S.C. § 1030(e)(2)(B). In its complaint, M-I has two passages that relate to this claim. First, M-I alleges that: Stelly connected external memory devices to his M-I laptop and transferred files to these devices from the laptop .... In addition, on March 8, 2009, Stelly began downloading M-I files on to his M-I laptop immediately after ending a cell phone conversation with Knobloch. Similarly, on March 6, 2009, Stelly called Knobloch minutes before he plugged in an external memory device to his laptop. (Doc. No. 355, ¶ 15.) Second, M-I asserts: Defendants knowingly and with intent to defraud, accessed and used the computers) assigned to by M-I, without authorization or in a manner exceeding any authorization they may claim that they had. By means of such conduct, Defendants furthered the intended fraud. M-I believes that, because of Stelly’s activities in March 2009, Defendants used M-I’s computer to misappropriate, use, and share M-I’s trade secrets and proprietary Confidential Information without authorization. (Id. ¶¶ 80-81.) The CFAA is a criminal statute, but civil actions are authorized for some violations of its substantive provisions. Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150, 1156 (5th Cir.2006). Section 1030(g) provides: Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief. A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i). The only subclause potentially applicable here is subclause (I), which covers “loss to 1 or more persons during any 1-year period ... aggregating at least $5,000 in value.” 18 U.S.C. § 1030(c)(4)(A)(i)(I). The CFAA defines “loss” as follows: [T]he term “loss” means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service. 18 U.S.C. § 1030(e)(ll). “Damage” is defined as “any impairment to the integrity or availability of data, a program, a system, or information.” Id. § 1030(e)(8). The Court finds that M-I fails to plead loss as it is defined in the CCPA. They have not alleged that any loss meets the statutory monetary sum of $5,000. In addition, case law has consistently interpreted the loss provision to encompass only the costs incurred as a result of investigating or remedying damage to a computer, or costs incurred because the computer’s service was interrupted. See, e.g., Nexans Wires SA v. Sark-USA Inc., 319 F.Supp.2d 468, 475 (S.D.N.Y.2004), aff'd, 166 Fed.Appx. 559, 562-62 (2d Cir.2006). M-I simply alleges damages “to its business in the form of lost profits, loss of customers and loss of future business opportunities.” (Doc. No. 355, ¶ 82.) M-I asserts no damages whatsoever relating to their investigation of computer damage, or costs incurred because any computer service was interrupted. In sum, M-I’s CCPA claim fails because M-I does not allege any facts showing at least $5,000 of loss, or any loss as a result of investigation or interruption of computer service. M-I’s current CCPA pleadings thus run afoul of Rule 12(b)(6) requirements, because they do not put forth facts that allow the Court to make an inference that Defendants are liable for any misconduct under the CCPA. Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The Court affords M-I one opportunity to replead this claim. III. MOTION FOR SUMMARY JUDGMENT Defendants Knobloch and WES move for partial summary judgment on two grounds. First, they argue that M-I’s tort claims based on wrongful copying of tool designs are preempted by federal copyright law. Second, they argue that Knobloch’s covenants not to compete are unenforceable as a matter of law. (Defs. Benton T. Knobloch & Wellbore Energy Solutions, LLC’s Mot. for Partial Summ. J. as a Matter of Law, Doc. No. 181, at 1.) A. Legal Standard A motion for summary judgment under Federal Rule of Civil Procedure 56 requires the Court to determine whether the moving party is entitled to judgment as a matter of law based on the evidence thus far presented. See Fed. R. Civ. P. 56(c). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.2001) (quotations omitted). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). This Court must view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. Id. The Court may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). “The court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’ ” Id. at 151, 120 S.Ct. 2097. Hearsay, conclusory allegations, unsubstantiated assertions, and unsupported speculation are not competent summary judgment evidence. Fed.R.Civ.P. 56(e)(1); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (noting that a non-movant’s burden is “not satisfied with ‘some metaphysical doubt as to the material facts’ ”) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). B. Analysis 1. Copyright preemption Knobloch and WES move to dismiss “M-I’s tort claims based on wrongful copying of tool designs because the claims are preempted” by the U.S. Copyright Act, 17 U.S.C. §§ 101-1332. (Doc. No. 181, ¶ 7.) Whether a federal statute preempts state law is a question of law for this Court. Franks Inv. Co. v. Union Pac. R.R. Co., 593 F.3d 404, 407 (5th Cir.2010) (citing Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 442 (5th Cir.2001)). Section 301(a) of the Copyright Act “accomplishes the general federal policy of creating a uniform method for protecting and enforcing certain rights in intellectual property by preempting other claims.” Daboub v. Gibbons, 42 F.3d 285, 288 (5th Cir.1995). It provides: On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 17 U.S.C. § 301(a). The Fifth Circuit has established a two-part test to determine whether a state law claim is preempted. First, the cause of action is “examined to determine whether it falls “within the subject matter of copyright.’” Daboub, 42 F.3d at 289. Second, the cause of action is “examined to determine if it protects rights that are ‘equivalent’ to any of the exclusive rights of a federal copyright, as provided in 17 U.S.C. § 106.” Id. (citations omitted). Section 106, for its part, grants the “exclusive right to reproduce, distribute, perform, and display the copyrighted work” to the holder of a copyright. Id. The first step requires the Court to determine whether the claim falls within the subject matter of copyright. Knobloch and WES argue that this case’s “implication of the copyright laws relates to the drawings, designs, technical manuals, specifications and plans of M-I’s tools which M-I alleges it owns and Defendants, copied.” (Doc. No. 181, ¶ 12.) They urge that those items fall within the subject matter of copyright. M-I does not dispute that its tool drawings and other material are copyrightable, but instead argues that the claims in this suit are based on “replicating tools using trade secret information, not copying copyright-protected drawings.” (PL M-I LLC’s Request for Relief & Resp. to Defs. Benton Knobloch & Wellbore Energy Solutions, LLC’s Mot. for Partial Summ. J. as a Matter of Law, Doc. No. 195, ¶ 7) (emphasis in original). Focusing on tool copying rather than tool drawing copying is important, M-I argues, because tools are useful articles that do not qualify for copyright protection under the Copyright Act. Neither party, however, disputes the other’s argument regarding what is copyrightable matter. That is, M-I does not dispute that its drawings, designs, technical manuals, specifications, and plans fall under the subject matter of copyright. The Court agrees. Section 102 of the Copyright Act extends copyright protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” It then provides a list of categories of works of authorship that includes “pictorial, graphic, and sculptural works.” 17 U.S.C. § 102. Section 101, in turn, defines a “pictorial, graphic, and sculptural work” to include “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.” Several courts have found that technical drawings and designs fall within the subject matter of copyright. Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1490, 1501 (5th Cir.1990) (affirming opinion that treats engineering drawings as within the subject matter of copyright); Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1320 (9th Cir.1986) (noting that blueprints, engineering drawings, and architectural designs are all capable of copyright); Jedson Eng’g, Inc. v. Spirit Constr. Servs., Inc., 720 F.Supp.2d 904, 910-19, 2010 WL 2541619, at *1-8 (S.D.Ohio June 18, 2010) (treating drawings of tissue manufacturing plant design and construction as copyrightable material); Guillot-Yogt Assocs., Inc. v. Holly & Smith, 848 F.Supp. 682, 686 (E.D.La.1994) (noting that both architectural and engineering drawings fall within the subject matter of copyright) (quoting Schuchart & Assocs. v. Solo Serve Corp., 540 F.Supp. 928, 943 (W.D.Tex.1982)). M-I’s tool designs, drawings, and specifications fall within the subject matter of copyright. Similarly, Knobloch and WES do not dispute that the tools themselves do not qualify for copyright protection. The definition of a pictorial, graphic, or sculptural work under the Copyright Act is subject to a “useful article” exception: [T]he design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. 17 U.S.C. § 101. A “useful article” is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Id. M-I asserts, and Knob-loch and WES do not dispute, that the tools in question are useful articles whose aesthetic elements, if any, cannot be identified separately from, and exist independently of, the utilitarian aspects of the tool. Given that the parties agree that the drawings of the tools are subject to copyright, but the tools themselves are not, the question for this Court to decide is whether the claim in question concerns the drawings or tools. After a review of the Second Amended Complaint (Doc. No. 355), the live pleading in this case, the Court concludes that M-I’s claims relate to tool drawings and similar information, and thus fall within the scope of copyright. In the relevant counts, M-I focuses on the theft of tool drawings and other information. M-I asserts, for example, that Knobloch, Stelly, and Squyres “received access to M-I’s tool design and technology, and drawings and specifications, especially the SPS and GCS tools which were acquired by M-I in 2006” (Doc. No. 355, ¶ 47); that “M-I’s tool designs and technology are proprietary information used by M-I in its business” (id. IT 49); that “Defendants have unlawfully obtained, used, and taken M-I’s Confidential Information in violation of agreements and Texas law” (id. ¶ 69); and that “Defendants have taken and/or used, without permission, information and other property from M-I” (id. ¶ 84). Taken as a whole, the gravamen of M-I’s complaint focuses almost exclusively on Stelly, Squyres, and Knobloch’s alleged theft of tool drawings, designs, and other confidential information from WES. The Court finds that the claims fall under the subject matter of copyright. The first prong of the test is met. Next, the Court must consider whether the claim protects rights equivalent to any of the exclusive rights of a federal copyright. A state law claim protects rights equivalent to federal copyright claim where the core of the state law theory of recovery speaks to wrongful copying. Daboub v. Gibbons, 42 F.3d 285, 289 (5th Cir.1995). This examination requires a “comparison of the nature of the rights protected under federal copyright law with the nature of the state rights” asserted by a claimant. Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 787 (5th Cir.1999). It these two sets of rights are “determined to be ‘equivalent,’ then the state law cause of action is preempted.” Id. A state-law created right is equivalent to copyright laws “ ‘if the mere act of reproduction, distribution, or display infringes it.’ ” Recursion Software Inc. v. Interactive Intelligence, Inc., 425 F.Supp.2d 756, 764 (N.D.Tex.2006). The Fifth Circuit “evaluate[s] the equivalency of rights under what is commonly referred to as the ‘extra element’ test.” Alcatel, 166 F.3d at 772. Under this test, if the acts of Defendants about which M-I complains would violate both the state law cause of action and copyright law, then the state right is considered equivalent to copyright. Id. “If, however, one or more qualitatively different elements are required to constitute the state-created cause of action being asserted, then the right granted under state law does not lie ‘within the general scope of copyright,’ and preemption does not occur.” Id. WES and Knobloeh assert that M-I’s state tort claims are equivalent to copyright claims. The claims include common law misappropriation of trade secrets, tortious interference with M-I’s customer contracts, tortious interference with prospective business relations, tortious interference with M-I’s employment contract, breach of fiduciary duty, violations of the Texas Theft Liability Act, conspiracy, unfair competition by misappropriation, and conversion. WES and Knobloeh argue that the “core theory” of M-I’s state law tort claims is that Defendants wrongfully copied M-I’s tool designs through its drawings, designs, technical manuals, specifications, and plans. Knobloeh and WES assert that MI has stated throughout this case, including in answers to interrogatories and in hearings before the Court, that WES has copied its engineering drawings, specifications, and technical units. M-I argues that its state tort claims are not equivalent to copyright law claims, because each cause of action “requires at least one additional element not found in copyright law.” (Doc. No. 195, ¶ 10.) Specifically, M-I asserts that its claims of trade secrets and technology misappropriation includes the additional elements of (a) use of Mi’s trade secrets to create competing tools, (b) in direct violation of their contractual obligations and fiduciary duty to M-I. M-I believes that its allegations that certain defendants downloaded confidential information and took it to a new company is simply a prologue to its main allegation of the Defendants’ wrongful use of the misappropriated documents. Knobloeh and WES counter that M-I has drawn a distinction without a difference, arguing that to “make a tool from a design is to reproduce the design,” because the design itself must be copied in order to be used. (Defs. Benton T. Knobloeh & Wellbore Energy Solutions, LLC’s Reply to PI. M-I LLC’s Resp. to Defs.’ Mot. for Partial Summ. J. as a Matter of Law, Doc. No. 211, ¶ 4.) The Court does not believe that the element of use of the copyrighted drawings to make tools constitutes qualitatively different behavior from the elements for an action under copyright law. M-I cites G.S. Rasmussen & Associates Inc. v. Kalitta Flying Services in support of its argument. In that case, the plaintiff had obtained a certificate from the government to show the airworthiness of his aircraft design. He later offered to license it to defendant so they could use the same design for their own aircraft. Defendant declined to license the certificate from plaintiff, and instead copied plaintiffs flight manual and used it to obtain its own airworthiness certificate. Plaintiff then sued defendant for conversion and unjust enrichment, and defendant argued that copyright law preempted these state claims. The court disagreed, stating: Were [plaintiff] claiming an exclusive right to copy the manual, the drawings and plans or the [certificate] itself, his claim would surely be preempted by the Copyright Act. [Plaintiff] claims a much different interest, however: The right to use the [certificate] as a basis for obtaining an airworthiness certificate for an airplane that is modified in a particular way. [Plaintiff] thus complains not about the actual copying of the documents, but of their use as a shortcut in obtaining a valuable government privilege — the right to modify an airplane in a particular way without going to the trouble and expense of proving that the modification meets FAA standards. 958 F.2d 896, 904 (9th Cir.1992). The plaintiff in that case was not complaining about the actual copying of its drawings, but instead an unlikely use of that copied material: obtaining a valuable government privilege. The Court finds the case inapposite to the facts presented here. In the instant case, downloading the drawings alone does constitute the misappropriation, because M-I owns the exclusive rights to its technical drawings. The Court believes that this case is much closer to Gemcraft Homes, discussed above, than Rasmussen. There, the defendants stole architectural plans, which fall within the subject matter of copyright, and used them to make a building, which the court found to be uneopyrightable. Despite the fact that the plaintiff also alleged use of the plans, the court found that plaintiff had framed its state claims so that the mere act of copying the plans constituted the violation. 688 F.Supp. at 295. The Court believes M-I has done the same thing here. Defendants alleged downloading, copying, or transferring of work files constitutes unauthorized copying, and thus falls under federal copyright laws. Many other cases that have found federal copyright preemption did so in the context of use of the products. In other cases, both the copying and the use of the product were bound up in the very same act — for example, recording and releasing a non-original song without authorization. See, e.g., Daboub v. Gibbons, 42 F.3d 285, 287 (5th Cir.1995). The Court is not convinced that WES’s alleged use of M-I’s tool drawings supplies a qualitatively different element under the Fifth Circuit’s extra element test. Based on its review of the case law discussing federal copyright preemption, the Court concludes that some of M-I’s state tort claims are equivalent to federal copyright legal rights, and are therefore at least partially preempted. At least some of the claims, at their core, allege that Defendants copied and used tool designs, technologies, drawings, and specifications. The Court believes that the tort elements for some of M-I’s claims do not include qualitatively different elements than the elements for an action under the Copyright Act. The narrative that M-I has invariably constructed for this Court recounts the story of M-I’s former employees downloading and taking with them tool drawings, which WES then used to create, manufacture, and sell tools. Indeed, the overarching theme of the allegations contained in the complaint is one. of the theft of M-I’s tool drawings. In that way, this case is similar to Gemcraft Homes v. Sumurdy. In that case, the court analyzed a similar preemption question and determined that copyright law preempted plaintiffs conversion and tortious interference claims. There, two of the plaintiffs employees left their employment as sales counselors to start a new company. They had previously entered into employment agreements with the employer, promising that they would not take or use plaintiffs documents. Plaintiff sued its former employees, accusing them of stealing, copying, and plagiarizing building plans, and using them to build “ ‘identically virtual’ ” floor plans. 688 F.Supp. 289, 291 (E.D.Tex.1988). The court found that plaintiffs conversion claim was preempted by copyright law, because as plaintiff had framed its conversion claim, the mere act of copying the architectural plans would infringe the state law right. Id. at 295. As to plaintiffs tortious interference claim, the court found it preempted to the extent that the claim complained that plaintiff had “lost benefits flowing from its exclusive rights to the architectural plans.” Id. The Court finds instructive “Gemcraft Homes” facts and reasoning. Given that the basis of liability for many of M-I’s state tort claims is the theft of its trade drawings, and little else, the Court finds them to be preempted. The Court now turns to M-I’s individual tort claims to determine whether the rights therein are equivalent to, and thus preempted by, federal copyright law. a. Common law misappropriation of trade secrets Count 3 of the Second Amended Complaint accuses Knobloeh, WES, Stelly, and Squyres of common law misappropriation of trade secrets. “To prevail on a misappropriation claim under Texas law, ‘a plaintiff must show that (1) a trade secret existed, (2) the trade secret was acquired through a breach of a confidential relationship or discovered by improper means, and (3) the defendant used the trade secret without authorization from the plaintiff ” CQ, Inc. v. TXU Mining Co., 565 F.3d 268, 273 (5th Cir.2009) (quoting Gaia Techs. Inc. v. Recycled Prods. Corp., 175 F.3d 365, 376 (5th Cir.1999)). By contrast, to establish a claim for copyright infringement, “ ‘a plaintiff must prove that: (1) he owns a valid copyright and (2) the defendant copied constituent elements of the plaintiffs work that are original.’ ” Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 251 (5th Cir.2010) (quoting Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 367 (5th Cir.2004)). Texas’s misappropriation claim is typical of trade secrets claims nationwide, which “ ‘often are grounded upon a defendant’s breach of duty of trust or confidence to the plaintiff through improper disclosure of confidential material.’ ” Stromback v. New Line Cinema, 384 F.3d 283, 303 (6th Cir.2004) (quoting Computer Assocs. Int’l v. Altai, Inc., 982 F.2d 693, 717 (2d Cir.1992)). M-I has properly pled the breach of a confidential relationship or improper discovery. (See Doc. No. 355, ¶ 43 (“Stelly and Squyres had a confidential relationship with M-I which gave rise to certain fiduciary obligations.”); id. ¶ 24 (noting that Knobloeh maintained a Confidentiality Agreement with SPS/GCS).) The Court concludes that the additional element in trade secret misappropriation, which requires either a breach of confidential relationship or discovery by improper means, “regulates conduct qualitatively different from that regulated by federal copyright law.” DSC Commc’ns C