Full opinion text
ORDER JOHN A. JARVEY, District Judge. This matter comes before the court pursuant to Defendant Lockheed Martin Services, Inc.’s (“Lockheed”) February 16, 2009, Motion for Summary Judgment (Dkt. No. 78). On August 30, 2007, Plaintiff Criterion 508 Solutions, Inc. (“Criterion”) filed a petition in Polk County Iowa District Court, which Lockheed removed to federal court on September 28, 2007 (Dkt. No. 1). Criterion filed a Brief in Resistance to Defendant’s Motion for Summary Judgment on April 14, 2009 (Dkt. No. 95-2), as well as a Statement of Undisputed Facts (Dkt. No. 95-8) and a Response to Lockheed’s Facts (Dkt. No. 95-4). On May 11, 2009, Lockheed filed a Response to Criterion’s Facts (Dkt. No. 106) and a Reply Brief (Dkt. No. 112). Criterion responded with a Sur Reply on June 22, 2009 (Dkt. No. 121) and an Addendum to the Sur Reply on June 25, 2009 (Dkt. No. 123). For the reasons set forth below, the court grants summary judgment on Counts I, III, and VIII, and grants in part and denies in part summary judgment on Counts II and V. I. STATEMENT OF MATERIAL FACTS Criterion is an Iowa company specializing in technological “accessibility solutions” in compliance with Section 508 of the Rehabilitation Act. Section 508 requires federal agencies to make all electronic and information technology accessible to persons with disabilities. Specifically, Criterion specializes in “independent third-party validation of Web sites, Web applications, software, PDF documents, and/or tillable forms.” (PI. Facts, dkt. 95-3 at 1.) Criterion also offers on-site training and e-learning courses. (PI. Facts, dkt. 95-3 at 2.) Angy Brooks created an S-corporation called Brooks Web Services (“BWS”) in November 2000. BWS began working for Criterion in 2001 and performed Section 508 compliance work, including but not limited to, technical development, template creation, documentation, and technical training development. (Def. Appx. at 129.) BWS signed a Subcontractor’s Services Agreement with Criterion on May 23, 2004. (Def. Appx. at 147-50.) The Agreement included a confidentiality provision, a “right to title” for all work product, and a restrictive covenant preventing direct or indirect competition for two years following termination. (Def. Appx. at 148-49.) Criterion gave BWS 60-days’ notice of termination in May 2005. (Def. Appx. at 129.) On June 30, 2006, BWS filed suit against Criterion for allegedly unpaid invoices in Polk County District County. (Pl.’s Br. in Resistance, dkt. 95-2 at 9.) Criterion responded with counterclaims and the court ultimately granted judgment for Criterion. (Pl.’s Br. in Resistance, dkt. 95-2 at 18.) When BWS failed to pay the judgment, Criterion successfully pierced BWS’s corporate veil and Brooks was held personally liable for the judgment against BWS on June 27, 2008. (Pl.’s Response to Def.’s Statement of Undisputed Facts, dkt. 95 at 2; Pl.’s Br. in Resistance, dkt. 95-2 at 22.) During the 60-day notice period of termination and before Brooks’ end date of July 2005, Brooks began looking for new employment. In May, almost immediately after Criterion gave her notice of termination, Brooks responded to a job advertisement that Global Commerce & Information (“GCI”) had posted. GCI partners with Lockheed Martin Services (“Lockheed”) “to locate and hire people who will provide services to Lockheed Martin.” (Def. Facts, dkt. 78-2 at 2; see also Def. Appx. at 160-207.) GCI sent Brooks’ resume to Kathy Plourd, a Lockheed employee, on May 13, 2005. (PI. Appx. at 9). Plourd interviewed Brooks (PL’s St. of Undisputed Facts, dkt. 95-3 at 10) and on May 23, 2005, BWS entered into a Subcontractor Agreement with GCI. (Def. Appx. at 151.) From that point on, Brooks performed various subcontractor assignments associated with Section 508 compliance for the Social Security Administration (“SSA”). (Pl.’s St. of Undisputed Facts, dkt. 95-3 at 12-14.) The SSA paid Lockheed a total of $345,723 for Brooks’ work. (Pl.’s St. of Undisputed Facts, dkt. 95-3 at 14.) During Brooks’ employment with Lockheed, Brooks was at all times bound by the terms of a two-year restrictive covenant. (PL’s St. of Undisputed Facts, dkt. 95-3 at 14.) Thus, Criterion contends that Brooks’ Section 508 work product for SSA/Lockheed was a direct result of the trade secrets and proprietary information Brooks learned while working for Criterion. (PL’s St. of Undisputed Facts, dkt. 95-3 at 14.) A. Material Facts Relating to the Nature of Brooks’ Employment with Lockheed The parties dispute whether Brooks was a full-time employee or an independent contractor for Lockheed.. Lockheed argues that Brooks was not a Lockheed employee and therefore it is not vicariously liable for the tortious acts of independent contractors. Criterion disputes Lockheed’s characterization of Brooks’ employment and maintains that Lockheed is responsible for Brooks’ actions because she was an employee. Lockheed asserts that Brooks was an independent contractor because of the Subcontractor’s Services Agreement she signed with GCI on May 23, 2004. The Agreement states that she is not an employee to GCI or to any of its clients, nor will she receive any employee benefits. Criterion admits that Brooks signed the agreement, but denies that it “implies Brooks was a contractor or subcontractor.” (PL Resp. to Def.’s Facts, dkt. 95^1 at 5.) Lockheed also asserts that Brooks received wages from GCI and GCI withheld employment taxes. (See Def. Appx. at 139.) In her deposition, Brooks confirmed that GCI paid her for Lockheed-related work. (Def. Appx. at 212.) Additionally, Brooks stated that she used the SSA computers and worked at SSA offices, not at Lockheed offices. (Def. Appx. at 214.) However, Criterion asserts that Brooks was, at all times, a full-time employee of Lockheed. Although GCI referred Brooks to Lockheed (Pl. Appx. at 9), Criterion states that Brooks’ job interview was with Kathy Plourd, an employee for Lockheed, and not GCI. (Def. Appx. at 143.) Additionally, Brooks received work assignments from Lockheed and submitted her work for review by Plourd. Lockheed agrees that Plourd “acted as a supervisor and/or administrator to Brooks and ensured that Brooks’ project for the SSA was fulfilled.” (Def. Facts, dkt. - 78-2 at 4.) However, Lockheed states that while Plourd was a supervisor, she did not “tell [Brooks] how to do the work,” nor did she “dictate to [Brooks] the means or methods [Brooks] [was] to follow to accomplish the goals set forth in the project.” (Def. Appx. at 214A, 215.) Criterion objects and points to emails from Plourd to bolster its argument that Brooks was actually an employee of Lockheed. In an email from Brooks to Plourd, Brooks stated, “[S]ince I will be held responsible for the deliverables of the word order, I want to capture them in writing so that we’re all in agreement as to what is expected from me____” (Pl. Mat. Facts, dkt. 95-3 at 10.) In another email from Brooks to Plourd, Brooks stated, “I WELCOME and ENCOURAGE your criticism and comments.” (PI. Mat. Facts, dkt. 95-3 at 11) (emphasis in original.) Lastly, Brooks also sought Plourd’s “input and feedback.” (PI. Mat. Facts, dkt. 95-3 at 11.) Other factors also indicate Lockheed’s involvement in financial matters. For example, Criterion contends that Brooks sought Lockheed’s permission to attend a conference and to receive reimbursement from Lockheed for certain expenses. (PI. Mat. Facts, dkt. 95-3 at 11.) Brooks’ email signature line also included Lockheed’s name and Brooks recorded her hours using the Lockheed timecard system. (PI. Mat. Facts, dkt. 95-3 at 11.) B. Material Facts Relating to Lockheed’s Knowledge of Brooks’ Criterion Work Whether or not Lockheed knew about Brooks’ restrictive covenant with Criterion remains in dispute. Lockheed claims that it did not intentionally interfere with Brooks’ restrictive covenant because it did not know that Brooks had any contractual limitations from previous employment. Criterion asserts that Lockheed intentionally interfered with Brooks’ restrictive covenant and that it hired Brooks to gain proprietary Criterion information. Criterion contends that Lockheed had ulterior motives in hiring Brooks because Lockheed knew it could gain the functional equivalent of Criterion’s products by hiring Brooks to design new Section 508 products for clients. Lockheed states that Brooks never “inform[ed] [GCI] that she had a restrictive covenant, noncompete agreement, or confidentiality agreement as part of her prior relationship and/or contract with Criterion.” (Def. Facts, dkt. 78-2 at 3; see also Def. Appx. at 212-13.) Brooks signed an Employee Consent Agreement which stated, “Contractor Employee acknowledges ... that he/she is not restricted by any employment or other agreement from providing services to Client, and understands that any misstatements or lack of candor by Contractor Employee of his/her qualifications or availability may be grounds for immediate termination by the Client.” (Def. Appx. at 157.) Lockheed also states that it never had a copy of Brooks’ subcontractor services agreement with Criterion. (Def.’s Resp. to Pl.’s Statement of Disputed Facts, dkt. 106 at 21.) Criterion denies everything related to Lockheed’s claim that it was unaware of Brooks’ employment agreement with Criterion. Criterion suggests an email from Brooks to Plourd provides evidence that Lockheed was aware of the restrictive covenant. In this email, Brooks stated, “If you recall, I worked for Criterion Solutions prior to coming to work as a contractor for [Lockheed]. I told you at that time that this was not a violation of the contract I had with Criterion, since [Lockheed] wasn’t a client of Criterion’s, nor was the SSA. This was, and still is, true.” (Pl. Resp. to Def.’s Facts, dkt. 95-4 at 9; see also PL’s Appx. 1-2.) Criterion challenges Brooks’ credibility, urging the court to take judicial notice of her dishonesty and unethical conduct. While performing services for Lockheed/GCI, Brooks’ projects included work for the SSA. Her tasks included the creation of handbooks to explain to its employees: “(i) the process of how to make/convert a Word document to a PDF file and (ii) how to make a PDF file accessible to people with disabilities.” (Def. Facts, dkt. 78-2 at 4; see also Def. Appx. 216.) The record is conflicting regarding the extent of overlapping knowledge between Brooks’ knowledge-base derived from Criterion and her subsequent work at Lockheed. Criterion asserts that Brooks worked on “at least 10 Section 508/accessi-bility projects for [Lockheed].” (PL Resp., dkt. 95^1 at 18.) Lockheed argues that there were only four assignments and Criterion is artificially inflating the number by including revisions. (Def.’s Resp. to PL’s Statement of Disputed Facts, dkt. 106 at 25.) C. Criterion and BWS Prior State Court Law Suit Additionally, the Polk County state court suit between Criterion and BWS/ Brooks presents a controversy as to whether the state suit operates to preclude Criterion’s suit against Lockheed. Lockheed claims that Criterion is barred by claim preclusion from pursuing matters already resolved in state court, such as unjust enrichment, misappropriation of trade secrets, and copyright infringement. Criterion contends that Lockheed cannot satisfy the elements of claim preclusion. In essence, Criterion asserts that it can still adjudicate certain claims against Lockheed, despite Lockheed’s allegations that several of the current claims are substantially similar to claims made in the state court suit with Brooks. On June 30, 2006, BWS sued Criterion in Iowa District Court in and for Polk County. BWS alleged breach of contract, an open account, and quantum merit. BWS, through Brooks, claimed that Criterion failed to pay BWS for approximately $63,000 of work. (Def. Appx. at 1-3.) On July 12, 2006, Criterion counterclaimed, claiming breach of fiduciary duty, unjust enrichment, breach of written contract, breach of restrictive covenant, negligence, and conversion. (Def. Appx. at 6-11.) The case went to a jury trial held June 4-6, 2007. At the close of Brooks’ evidence, the court granted Criterion’s motion for directed verdict on all three counts of Brooks’ petition and dismissed the counterclaims related to breach of fiduciary duty, and portions of the negligence and breach of confidentiality claims. (Def. Appx. at 17-18.) Regarding the unjust enrichment claim, the court found, Criterion 508 failed to prove that Plaintiff received funds that she unjustly deserved. Plaintiff performed services while working as a subcontractor for Criterion 508, and was partially paid for those services. Those funds were rightfully due and owing to Plaintiff. Plaintiff in fact performed many services for Defendant which were not paid for by the Defendant because she submitted the bills too late. (Def. Appx. at 19.) The court found for Criterion on the breach of contract, breach of restrictive covenant, negligence, and conversion claims. As to the breach of contract claim, the court found that Brooks violated the confidentiality provision of her contract in several ways — she had revealed information to a non-party, Georgia Spurgeon; posted an article online detailing Criterion’s “PDF testing and repair technique;” and had. posted Criterion’s “business methods on the internet, available for anyone, for free access.” (Def. Appx. at 20-22.) The court also found that the covenant not to compete was valid and enforceable, and that Brooks had violated it in several ways. The court found that the non-compete covenant applied to Brooks from the date of her termination, July 17, 2005, to on or about July 17, 2007. (Def. Appx. at 27.) She violated the covenant by posting an advertisement for web and PDF design for 508 compliancy, as the court stated, “[A] logical inference is made that [Brooks] was intending for people who were interested in PDF accessibility to click on this link.” (Def. Appx. at 28.) Additionally, Brooks’ actions of creating and posting on the SSA’s website a desk guide for creating accessible documents used “business methods and services which Criterion 508 Solutions specialized and developed.” (Def. Appx. at 29.) An additional online posting on the internet “included more of Criterion 508 Solutions’ business methodologies, revealed without Criterion 508 Solutions’ permission.” (Def. Appx. at 29.) The court found that Brooks had learned all of this confidential information while being employed by Criterion. However, Criterion failed in proving damages (both liquidated and otherwise) for either the breach of contract or restrictive covenant claims because it failed to present evidence supporting more than a speculative loss of income. (Def. Appx. at 22, 30, 32.) The court also rejected Criterion’s claim that Brooks had violated the restrictive covenant while she worked for Lockheed because Brooks never worked for Lockheed while still employed as a subcontractor for Criterion. (Def. Appx. at 30.) Lastly, the court held that Brooks had been negligent in failing to complete a project and then retaining materials needed for completion. The court awarded Criterion $11,200 that it had been forced to pay for completion bonuses. (Def. Appx. at 34.) Likewise, Brooks’ acts of retaining documents and registering Criterion508.net for her own company were found to be intentional acts of conversion. (Def. Appx. at 36.) Criterion again failed to establish lost income by a preponderance of the evidence and its claim for damages was denied. (Def. Appx. at 36.) II. SUMMARY OF THE ARGUMENTS Lockheed asks the court to consider summary judgment on the five remaining Criterion counts: Intentional Interference with a Contract (Count I), Unjust Enrichment (Count II), Misappropriation of Trade Secrets (Count III), Copyright Infringement (Count V), and Civil Conspiracy to Breach Fiduciary Duties (Count VIII). Lockheed bases its motion for summary judgment on several theories: the prior state court judgment precludes the vicarious liability claims (Counts II, III, and V), the vicarious liability claims are barred because Brooks was an independent contractor for Lockheed (Counts II, III, and V), there is insufficient evidence to establish a prima facie case (Counts I, II, and VIII), the copyright claims are barred because the copyrights were not registered (Count V), and the state law claims are preempted by the copyright statute (Counts I and II). Criterion presents several arguments as to why summary judgment is inappropriate. Criterion argues that Brooks was a Lockheed employee and not an independent contractor, the vicarious liability claims are not precluded by the prior state court judgment, Criterion has set forth sufficient facts to establish prima facie cases, copyrights do not have to be registered to be protected, and the copyright statute does not preempt state law. The court will address each claim and basis for summary judgment in turn. III. CONCLUSIONS OF LAW A. Summary Judgment Standard A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. HDC Medical Inc. v. Minntech Corp., 474 F.3d 543, 546 (8th Cir.2007) (citation omitted); see also Kountze ex rel. Hitchcock Foundation v. Gaines, 536 F.3d 813, 817 (8th Cir.2008) (“[Sjummary judgment is appropriate where the pleadings, discovery materials, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law.”). Summary judgment is appropriate when the evidence is so one-sided that “there exists only one conclusion.” Webb v. St. Louis Post-Dispatch, 51 F.3d 147, 148 (8th Cir.1995) (citation omitted). Once the movant has properly supported its motion, the nonmovant “may not rest upon the mere allegations or denials of [its] pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). A genuine issue of material fact exists “if the evidence is sufficient to allow a reasonable jury verdict for the nonmoving party.” Great Plains Real Estate Dev., L.L.C. v. Union Central Life Ins. et al, 536 F.3d 939, 944 (8th Cir.2008) (citation omitted). A genuine issue of fact will be material if it “might affect the outcome of the suit under the governing law.” Saffels v. Rice, 40 F.3d 1546, 1550 (8th Cir.1994) (citation omitted). The nonmovant is then “entitled to all reasonable inferences that can be drawn from the evidence without resort to speculation.” Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir.2001) (citation omitted). Although the non-movant is not required to submit “direct proof that genuine issues of fact exist for trial, the facts and circumstances that she [or he] relies upon must attain the dignity of substantial evidence and not be such as merely to create a suspicion.” Taylor v. White, 321 F.3d 710, 715 (8th Cir.2003) (internal quotation omitted). A “scintilla” of evidence supporting the movant’s position is alone insufficient because “there must be evidence on which the jury could reasonably find for the plaintiff.” Sprenger, 253 F.3d at 1110. “To survive summary judgment, a plaintiff must substantiate his allegations with enough probative evidence, to support a finding in his [or her] favor.” Roeben v. BG Excelsior, Ltd. P’ship, 545 F.3d 639, 643 (8th Cir.2008) (citing Haas v. Kelly Services, Inc., 409 F.3d 1030, 1034 (8th Cir.2005)). B. Vicarious Liability Lockheed argues that summary judgment is appropriate on Criterion’s Unjust Enrichment (Count II), Misappropriation of Trade Secrets (Count III), and Copyright Infringement (Count V) claims, because Brooks was not a Lockheed employee and therefore it is not vicariously liable under the doctrine of respondeat superior. Criterion argues that Brooks was an employee of Lockheed and that whether an employee/employer relationship exists is a question of fact reserved for the jury. According to Iowa law, a corporation is liable for tortious conduct committed during the scope of an employee’s employment. Pippert v. Gundersen Clinic, Ltd., 300 F.Supp.2d 870, 877 (N.D.Iowa 2004). It is a “well established rule ... that under the doctrine of respondeat superior, an employer is liable for the negligence of an employee committed while the employee is acting within the scope of his or her employment.” Lyons v. Midwest Glazing, L.L.C., 235 F.Supp.2d 1030, 1044 (N.D.Iowa 2002). However, “ordinarily the employer ... of an independent contractor ... is not liable for injuries arising out of the latter’s negligence.” Clausen v. R.W. Gilbert Constr. Co., 309 N.W.2d 462, 466 (Iowa 1981). Thus, to succeed on a claim of vicarious liability under the doctrine of respondeat superior, there must be “proof of an employer/employee relationship (or employment as an independent contractor), and proof that the injury occurred within the scope of that relationship.” Zimmer v. Travelers Ins. Co., 521 F.Supp.2d 910, 936 (S.D.Iowa 2007) (quoting Walderbach v. Archdiocese of Dubuque, Inc., 730 N.W.2d 198, 201 (Iowa 2007) (failure to establish an employer/employee relationship due to multiple statements that priest was an independent contractor, church was a separate legal entity, and priest’s salary paid by church, not Archdiocese)). To determine whether a person is an employee or an independent contractor, the court must look at the totality of circumstances surrounding the employment. Relevant factors include: “(1) who had the right to control the physical conduct of the work, (2) whether the purported employee was on the employer’s payroll, and (3) who provided the equipment to accomplish the work.” Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 543 (Iowa 1997). The Iowa Supreme Court also considers: “(1) the existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of [her] business or of [her] distinct calling; (3) [her] employment of assistants, with the right to supervise their activities; (4) [her] obligation to furnish necessary tools, supplies, and materials; (5) [her] right to control the progress of the work, except as to final results; (6) the time for which the workwoman] is employed; (7) the method of payment, whether by time or by job; [and] (8) whether the work is part of the regular business of the employer.” Id. at 543 (quoting Nelson v. Cities Serv. Oil, 259 Iowa 1209, 1214-15, 146 N.W.2d 261 (Iowa 1966)). See also Walderbach v. Archdiocese of Dubuque, Inc., 730 N.W.2d 198, 200 (Iowa 2007) (relevant factors include: “the right of selection or employment at will, the responsibility to pay wages, the right to terminate the relationship, the right to control the work, the benefit received by the alleged employer, and the intent of the parties.” (citing Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 541-42 (Iowa 1997))). Despite the numerous factors the court must weigh, the important distinction “is the degree of retention by [the] principal of the right to control the details of the work as well as the results.” McDonald v. Dodge, 231 Iowa 325, 1 N.W.2d 280, 282 (1941). Even if there is no “actual control,” then it is still the “right to control which is determinative of whether [an] employer-employee relationship exists,” as some types of work need little or reduced supervision. Air Terminal Cab, Inc. v. United States, 478 F.2d 575, 580 (8th Cir.1973). An employer of an independent contractor may “properly retain control necessary to see the result is obtained according to plan.” Schlotter v. Leudt, 255 Iowa 640, 123 N.W.2d 434, 437 (1963). However, signing an agreement “stating that [a] worker is [a] self-employed contractor and designating [that] pei'son [as an] independent contractor” does not automatically establish one as an independent contractor. Louismet v. Bielema, 457 N.W.2d 10, 13 (Iowa Ct.App. 1990). Whether a person is an independent contractor or an employee is a question that is typically reserved for the jury unless the evidence is insufficient and can be decided as a matter of law. See Pippert v. Gundersen Clinic, Ltd., 300 F.Supp.2d 870, 877 (N.D.Iowa 2004) (stating this rule in the context of whether an employer/employee relationship exists). Furthermore, a court may also properly decide a “question of relationship created by written contract----” Rouse v. State, 369 N.W.2d 811, 813 (Iowa 1985). Where all evidence points to one side and “there is no rational basis for reasonable minds to differ as to [the] status of [the] servant the issue is one of law for the court to resolve.” Watland v. Walton, 410 F.2d 1, 3-4 (8th Cir.1969). Applying the factors discussed above to the facts of this case, the court finds that there are no genuine issues of material fact and that Brooks was an independent contractor of Lockheed. Control Over Work. First, regarding the “primary focus” — whether Lockheed had control over Brooks’ work — the parties point to countervailing evidence. Criterion notes that in two emails, Brooks asked Lockheed employee, Kathy Plourd, for feedback, comments, and direction. Plourd supervised and directed Brooks’ work assignments. (Def. Appx. at 214A.) Brooks also went to Plourd for permission to attend a conference and to be “paid for [her] hours spent in attendance” for that conference, as Brooks stated that this conference was “directly related to [the SSA] work order.” (PL Appx. at 61.) Brooks stated in her deposition that Plourd did not “tell [her] how to do the work,” or “dictate ... the means or methods [Brooks was] to follow to accomplish the goals set forth in the project.” (Def. Appx. at 114A-15.) Additionally, Brooks noted that Lockheed’s role was “[administrative, ensuring that the project was fulfilled.” (Def. Appx. at 214A.) Once Plourd assigned Brooks a project, any input Brooks needed for project completion came directly from the SSA. (Def. Appx. at 215.) Lockheed did not have creative control over the content of Brooks’ work product. In Brooks’ deposition, she stated, A: I received an outline from the SSA that was the Adobe PDF accessibility handbook’s outline. And they asked me to write something similar along that outline that was easier to read and understand. Q: All right, so — and that direction was from SSA? A: That’s correct. Q: When you had questions about what the project involved or what you were to do, who would you ask? A: I had bi-weekly meetings — every other week meetings — with Robert somebody that was the SSA guy.... And I didn’t necessarily have questions because I knew how to do my job, but their requirements changed based on my work. Thus, the record is clear that Lockheed had administrative control over Brooks’ work product, but that the SSA gave her the feedback and directions she needed to meet its expectations. Physical Control of Work Product. Brooks turned her completed work into Plourd and from that point on, Lockheed was in control of Brooks’ physical work product. (Def. Appx. at 220B.) Payroll. GCI, and not Lockheed, paid Brooks because the Lockheed/GCI contract stipulated Lockheed would pay contractors GCI had referred to Lockheed after “submission of properly certified time sheets.” (Def. Appx. at 162-64.) The Subcontractor Agreement between Brooks and GCI stated that GCI would not provide Brooks with “... disability insurance, paid vacations, sick leave or other leave, retirement plans, health plans, premium ‘overtime’ pay, and the like.” (Def. Appx. at 153.) Brooks was also responsible for withholding employment taxes as Lockheed (Def. Appx. at 165) and GCI expressly disavowed this responsibility: It is understood and agreed that since the Contractor is an independent contractor, [GCI] will make no deductions from fees paid to Contractor for any federal or state taxes or FICA, and [GCI] and [Lockheed] have no obligation to provide Worker’s Compensation coverage for Contractor or to make any premium ‘overtime’ payments at any rate other than the normal rate agreed to in the Purchase Order. (Def. Appx. at 153.) The initial Purchase Order from Lockheed to Brooks allocated a maximum of $9600 or 200 hours for Brooks’ assignment. (Def. Appx. at 155.) To track these hours, Brooks used the Lockheed timecard system because her compensation from GCI was based on approved and completed billable hours. (Def. Appx. at 207.) Type of Contract. Brooks signed a “subcontractor agreement” with GCI. (Def. Appx. at 151-59.) The agreement states, The parties to this Agreement agree that the relationship created by this Agreement is that of broker-independent contractor. Contractor agrees and has advised its personnel that Contractor and its personnel, are not employee(s) of Global Commerce & Information, Inc. or the Client and are not entitled to (and also hereby waive) any benefits provided or rights guaranteed by Global Commerce & Information, Inc. or the Client, or by operation of law, to their respective employees.... (Def. Appx. at 153.) Lockheed also notes that Brooks’ contract was for a discrete amount of time (Def. Appx. at 155) and for a discrete purpose — to create two handbooks and two “desk guides” for the SSA. There is some disagreement over the number of total projects in which Brooks was involved; Lockheed suggests a total of four, whereas Criterion asserts there were ten projects. Brooks stated in her deposition that she worked on four projects: I produced a handbook on how to make PDFs accessible and a handbook on how to make Microsoft Word documents accessible and then export them to PDF and then two desk guides that basically took the most important things in each of those two documents and condensed it into a single page. (Def. Appx. at 216.) The court finds it irrelevant that multiple versions or drafts could have increased the total number of projects to ten. Other Factors. Criterion argues that Brooks held herself out as a Lockheed employee by using the Lockheed information on her email signature. However, Brooks’ email address was associated with the SSA project and she clearly stated in her signature that she was a contractor for Lockheed. (PI. Appx. at 61.) GCI initially referred Brooks to Lockheed and Plourd conducted Brooks’ interview for the position. Brooks testified in her deposition that she never used Lockheed computers and only worked at SSA offices. (Def. Appx. at 214.) Lockheed may have printed the final work product in-house, but Brooks did not use Lockheed’s physical facilities or its computers in the creation of the work product. Here, Criterion’s claim that Brooks was an employee of Lockheed must fail. Criterion has failed to generate a genuine issue of material fact as to whether Brooks was an employee. The overall nature of Brooks’ projects, the minimal oversight and direction from Lockheed, the pay structure, and the location of Brooks’ work establish that Brooks was an independent contractor for Lockheed. The court finds summary judgment is appropriate on the issue of whether Lockheed is vicariously liable because- Brooks was not a Lockheed employee. For that reason, the court grants summary judgment to Lockheed on the vicarious liability issue as to the Unjust Enrichment (Count II), Misappropriation of Trade Secrets (Count III), and Copyright Infringement (Count V) claims. C. Claim Preclusion Lockheed next asserts that summary judgment is proper on Criterion’s Unjust Enrichment (Count II), Misappropriation of Trade Secrets (Count III), and Copyright Infringement (Count V) claims because they are precluded by the Polk County court’s previous ruling. Lockheed contends that Criterion’s claims would hold Lockheed vicariously liable for Brooks’ actions, and argues that under Iowa law, where claims have resulted in a judgment against an individual, the same plaintiff cannot then bring a claim against another individual or company that is vicariously liable. Criterion responds that (1) claim preclusion only applies to the same parties, (2) the issues were not fully litigated during the first case, (3) its claims against Lockheed involve different facts and are thus independent to the prior suit, and alternatively, (4) there is a change in circumstances present to warrant not applying claim preclusion. Claim preclusion centers around the principle that a “party may not split or try his claim piecemeal, but must put in issue and try his entire claim or put forth his entire defense in the case on trial.” Iowa Coal Min. Co., Inc. v. Monroe Cty., 555 N.W.2d 418, 441 (Iowa 1996) (internal citations omitted). Iowa law states that a party asserting claim preclusion, or res judicata, must establish the following: “(1) the parties in the first and second action were the same; (2) the claim in the second suit could have been fully and fairly adjudicated in the prior case; and (3) there was a final judgment on the merits in the first action.” George v. D.W. Zinser Co., 762 N.W.2d 865, 868 (Iowa 2009) (internal citations omitted). See Spiker v. Spiker, 708 N.W.2d 347, 353 (Iowa 2006). A party may not return to court “simply by alleging a new ground of recovery for the same wrong.” Westway Trading Corp. v. River Terminal Corp., 314 N.W.2d 398, 401 (Iowa 1982). Likewise, an additional claim will likely be barred when the alleged acts, recovery demanded, or the “same evidence will support both actions.” Id. (internal citations omitted). Accord Whalen v. Connelly, 621 N.W.2d 681, 685 (Iowa 2000). Under the rule of claim preclusion, “a valid and final judgment on a claim precludes a second action on that claim or any part of it.” Arnevik v. Univ. of Minn., 642 N.W.2d 315, 319 (Iowa 2002). However, claim preclusion also requires distinguishing between the “same” and “related” causes of action. Iowa Coal Min. Co., Inc. v. Monroe County, 555 N.W.2d 418, 441 (Iowa 1996) (citing Westway, 314 N.W.2d at 401). The factors for causes of action that are the “same” for claim preclusion purposes include: “(1) the same principles of substantive and procedural law are applicable to both actions; (2) the same right is alleged to be infringed by the same wrong in both actions; (3) the judgment sought in the second action would infringe rights established in the first; (4) the same evidence would support both actions; or (5) the operative facts are the same in both actions.” Id. at 443 (internal citation omitted). If a “distinct claim” was not joined, but there was a right to join a related claim, then claim preclusion will not apply to that distinct claim. Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 460 N.W.2d 858, 860 (Iowa 1990). 1. Vicarious Liability In the traditional context, claim preclusive effects of a judgment were limited to parties who would have been bound by a judgment, otherwise known as the “rule of mutuality.” 18A Charles Alan Wright et al., Fed. Prac. & Prog. Juris.2d § 4463, at 677. There is increasing authority, however, in favor of extending claim preclusion to derivative liability relationships because the party asserting preclusion should have been joined in the original litigation. Id. § 4464.1. Courts have embraced a litmus test for extending claim preclusion to non-original parties depending largely on the degree of privity between the affected parties; where there is insufficient privity between parties, courts have rejected extending claim preclusion. The Supreme Court has held on multiple occasions that parties could invoke claim preclusion if “their liability was ... ‘altogether dependent upon the culpability’ of the [prior] defendants.’ ” Lawlor v. Nat’l Screen Service Corp., 349 U.S. 322, 330, 75 S.Ct. 865, 99 L.Ed. 1122 (1955) (quoting Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 32 S.Ct. 641, 56 L.Ed. 1009 (1912)). See also Saudi Arabia v. Nelson, 507 U.S. 349, 375-76, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (related lawsuit against a foreign sovereign “may be entitled to preclusive effect with respect to the [plaintiffs] similar claims”); Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (“a final judgment on the merits bars further claims by parties or their privies based on the same cause of action”). Additional guidance for applying claim preclusion to vicarious liability claims comes in the form of Restatement (Second) of Judgments § 51. Section 51 operates to protect vicariously liable parties from litigation when an injured person has already lost an earlier suit. Despite different parties, there is only one claim, if “[t]he same loss is involved, usually the same measure of damages, and the same or nearly identical issues of fact and law.” Restatement (Second) of Judgments § 51, cmt. b. In Kimmel v. Iowa Realty Co., 339 N.W.2d 374, 377 (Iowa 1983), the Iowa Supreme Court adopted § 51, which states, If two persons have a relationship such that one of them is vicariously responsible for the conduct of the other, and an action is brought by the injured person against one of them, the judgment in the action has the following preclusive effects against the injured person in a subsequent action against the other. (1) A judgment against the injured person that bars him from reasserting his claim against the defendant in the first action extinguishes any claim he has against the other person responsible for the conduct unless: (a) The claim asserted in the second action is based upon grounds that could not have been asserted against the defendant in the first action; or (b) The judgment in the first action was based on a defense that was personal to the defendant in the first action. Restatement (Second) of Judgments § 51. In Kimmel, the Kimmel plaintiffs sued Iowa Realty for vicarious liability based on its former employee’s fraud, negligence, and breach of fiduciary duty in a real estate transaction. In the Kimmels’ earlier suit, an Iowa Realty employee had sued the Kimmels for an unpaid balance. The Kimmels then filed a counterclaim seeking reformation of the contract based on allegations of mutual mistake and fraud. Kimmel, 339 N.W.2d at 378. The lower court issued a final decree ordering reformation. Id. Plaintiffs later initiated a new suit against Iowa Realty alleging vicarious liability on the same claims for its employee’s tortious conduct. Id. The court agreed with the defendant, Iowa Realty, that claim preclusion applied for any claims derived from the plaintiffs’ prior counterclaim for reformation against Iowa Realty’s former real estate agent. Id. at 378-79. However, the court made clear that claim preclusion would not apply if “different rules govern the measure of damages in the two actions.” Id. at 379 (quoting Restatement (Second) of Judgments § 51(2)(b)). As long as there is sufficient privity between the parties, Iowa courts have applied Section 51 on several occasions. The court has held that negligence and breach of fiduciary duty claims that were advanced against an estate’s trustees in prior litigation, were barred under the doctrine of claim preclusion when the subsequent defendants were found to be in privity. Shiwers v. Hertz Farm Mgmt, Inc., 595 N.W.2d 476, 481(Iowa 1999). In Peppmeier v. Murphy, 708 N.W.2d 57, 64 (Iowa 2005), the court found that a judgment in favor of the defendant doctor barred suit against the clinic for which he worked where the plaintiff asserted liability based on a theory of vicarious liability. The Eighth Circuit also tests for privity before allowing claim preclusion in a vicarious liability claim. See Yankton Sioux Tribe v. United States Dep’t of Health and Human Serv., 533 F.3d 634, 641 (8th Cir.2008) (individual’s inclusion in a “Tribe [that] understood itself to be acting in a representative capacity for the benefit of its individual members [was] sufficient to establish constructive notice.... ”); Friez v. First Am. Bank & Trust of Minot, 324 F.3d 580, 583 (8th Cir.2003) (“It is true that the mere relationship of employer and employee sometimes gives rise to a preclusive effect being given to a prior judgment in favor of one or the other.”); Black Clawson Comp., Inc. v. Kroenert Corp., 245 F.3d 759, 764 (8th Cir.2001) (with “divergent interests” between the parties asserting claim preclusion, there was “little practical incentive ... [to] provide [other] with virtual representation____”). In the facts before the court, Criterion is asserting vicarious liability against Lockheed based on Brooks’ tortious acts related to the claims of Unjust Enrichment (Count II), Misappropriation of Trade Secrets (Count III) and Copyright Infringement (Count V). Lockheed defends based on claim preclusion. The court has already found as a matter of law that Brooks was an independent contractor working for Lockheed. See Section III.B. Because Brooks was not a Lockheed employee, Lockheed cannot be vicariously liable for any tortious acts Brooks committed against Criterion. However, Section 51 applies not only in vicarious liability situations, but also when there is sufficient privity between the parties to merit extending claim preclusion to a non-original suit party. This is especially true in instances where the losses and damages are similar, and “the same or nearly identical issues of fact and law” are present. Restatement (Second) of Judgments § 51, cmt. b. Here, the facts demonstrate that there is sufficient similarity between the claims Criterion is alleging against Lockheed and Brooks, similar damages, and only superficial differences between issues of fact and law. Additionally, Lockheed and Brooks are in privity because Criterion’s claims against Lockheed are based on tortious acts Brooks committed while working as an independent contractor for Lockheed. All of the facts indicate that Criterion is suing Lockheed as the functional equivalent of Brooks and Criterion “cannot show any good reasons to justify a second chance.” 18A Charles Alan Wright et al., Fed. Prac. & Proc. Juris.2d § 4464.1, at 724. Thus, this court grants Lockheed’s motion and applies claim preclusion to Counts II, III, and V. %. Criterion Arguments Against Summary Judgment Although the court "finds that there are not genuine issues of material fact based upon privity between Lockheed and Brooks, it is expedient to also address Criterion’s counter-arguments against summary judgment on the issue of claim preclusion. For, as discussed above, the court finds that there is sufficient privity between Lockheed and Brooks to merit applying claim preclusion to Counts II, III, and V. Thus, Criterion responds with three arguments as to why claim preclusion would be improper for the remaining elements of claim preclusion. a. Prior Suit not Fully and Fairly Litigated Criterion argues that the issue of Lockheed’s liability was not fully litigated during the Polk County case because Criterion was not fully aware of the relationship between Brooks and Lockheed. Claim preclusion operates to prevent additional litigation where “the party against whom preclusion is asserted had a full and fair opportunity to litigate the claim or issue in the first action.” Amevik, 642 N.W.2d at 319 (internal citations omitted). In some cases, “ignorance may temper a strict application of issue or claim preclusion in subsequent litigation.” Kimmel, 339 N.W.2d at 379 (citing City of Chariton v. J.C. Blunk Const. Co., 253 Iowa 805, 112 N.W.2d 829, 834 (1962) (city’s reliance on insufficient engineer certification, did not support defendant’s contention that city lacked due diligence and should be barred from counterclaim suit; court made an exception to claim preclusion)). . The court thus examines the facts to determine whether Criterion had the opportunity to fully and fairly litigate its claim against Lockheed in the prior suit. Criterion admits that prior to its suit against Brooks, it “knew that Brooks had posted information on SSA’s website” but that it did not connect the SSA work to Brooks’ “involvement with Lockheed.” (Pl.’s Br., dkt. 95-2 at 42.) Criterion claims that it had “no idea about the true nature” of Brooks’ involvement with the SSA and Lockheed until her trial testimony. (Pl.’s Br., dkt. 95-2 at 42.) Criterion offers its requests for damages in the original suit to underscore its patent unawareness of Lockheed and Brooks’ true relationship. (Pl.’s Br., dkt. 95-2 at 42-44.) Lockheed counters Criterion’s asserted ignorance of the Brooks-Lockheed relationship by referring to trial briefs, testimony, and the court’s findings. (Def.’s Reply Br., dkt. 112 at 18-20.) Lockheed gleans awareness from Criterion’s own statements, such as Brooks’ response during discovery that she currently worked for Lockheed (Pl.’s St. of Undisputed Facts, dkt. 95-3 at 4) and the trial transcript in which Brooks discussed her accessibility work with Lockheed and SSA (PL’s St. of Undisputed Facts, dkt. 95-3 at 9). Lockheed also cobbles together Criterion’s awareness of Brooks’ relationship with Lockheed by asserting that Criterion should have connected the abrupt contract terminations with SSA and Lockheed to Brooks: “It’s the only two instances where negotiations stopped with real no [sic] explanation. That just doesn’t happen.” (Def. Appx. at 0044.) Lockheed thus asserts that .Criterion had enough indicators from Brooks that Criterion should have investigated the relationship more fully, either through depositions or other discovery requests. Criterion undisputedly knew that Brooks was working for the SSA; the onus was on Criterion to use litigation tools to discover the extent of Brooks’ other projects and employment. The court, while recognizing that ignorance or unawareness may temper some applications of claim preclusion, agrees with Lockheed in the present instance that Criterion did have the opportunity to fully and fairly litigate in the prior suit. b. Claims in Present Suit are Independent to Lockheed Alternatively Criterion asserts that the claims in the present suit are not precluded because the claims are independent to Lockheed. Criterion maintains that the claims against Brooks in the first lawsuit were based on her own wrongful conduct in breaching the restrictive covenants in her Subcontractor’s Services Agreement with Criterion, and the damages sought against her were based on her own misconduct. By contrast, the claims against Lockheed are based on .its decision to hire Brooks, while still bound by her Criterion restrictive covenant, for the purpose of obtaining Criterion trade secrets and proprietary information. Additionally, Criterion alleges that the claims and damages in the present case derive from Lockheed’s sale of Criterion’s secrets to SSA, with the subsequent publishing of this sensitive information on the web. Criterion maintains that although there are many similar and common facts between the two cases, the claims against Lockheed are independent to those against Brooks. (Pl.’s Br. in Resistance, dkt. 95-2 at 44.) Lockheed objects to this characterizing of the independent claims, “as each of those claims is based solely on the bad acts of Brooks, with [Lockheedj’s liability alleged to be ‘vicarious.’ ” (Def.’s Br., dkt. 81 at 32.) As discussed previously, claim preclusion only operates in the context of the “same” cause of action. Iowa Coal, 555 N.W.2d at 441 (Iowa 1996). Iowa courts use a balancing multi-factor test for determining whether claims are the same for claim preclusion purposes, including whether: (1) the substantive and procedural law is the same; (2) the same right is alleged to be infringed; (3) a judgment in the second action would infringe rights from the first; (4) the same evidence is used in both; or (5) the facts are the same in both actions. Id. at 443. ' In applying this independent claim test to the present case, the facts indicate that Criterion is not asserting independent claims. The substantive law in both the former and current suit is based on Brooks’ breach of her restrictive covenant, thus leading to unjust enrichment, misappropriation of trade secrets, and copyright infringement. It follows that the outcome of Brooks breaching her restrictive covenant led to the same alleged infringed right; namely, Criterion’s ability to sell and profit on its product without proprietary information leaks. The parties dispute to the extent Brooks shared Criterion’s proprietary information with SSA and Lockheed, although the parties agree that if Brooks did share proprietary information, that she was in breach of her restrictive covenant. Although there may be a reasonable inference that Lockheed’s motive in hiring Brooks was to gain Criterion proprietary information indirectly — without paying Criterion the licensing fees— Criterion has failed to bolster this allegation with any evidence that Lockheed’s motive was improper. Criterion also fails to demonstrate that a judgment in its favor against Lockheed would not infringe Brooks’ rights in the former suit. For example, the court has already found that Lockheed and Brooks have party privity. If Lockheed were to be held liable in the present suit, it could seek indemnification from Brooks as the active tortfeasor — who was already adeemed not liable. Lastly, much of the same evidence and facts are used in the present suit as in the former suit. Criterion had been aware that Brooks had subverted confidential information and made some information publicly available. Through discovery in the present case, Criterion has uncovered Brooks’ assigned project work, additional evidence relating to her employment contract and communication with Lockheed and GCI, as well as control over work product. However, the additional facts Criterion has presented do not establish the existence of an “independent claim.” Although the facts do perhaps signal intent on behalf of Lockheed to use Brooks as a cheap source for proprietary Section 508 information, Criterion has not supported this allegation with sufficient evidence. Additionally, Criterion has not managed to factually demonstrate with any certainty, as to how the new alleged damages based on Lockheed’s conduct differ materially from the original damages sought. Criterion asserts that Lockheed vicariously benefitted from its use of Brooks and this interference resulted in Criterion’s lost contracts with Lockheed and the SSA. Criterion calculates these damages range up to $ 100,000,000 based on the four courses and Lockheed’s cost per course for its 60,000 employees. (Def. Appx. at 00223-26.) These are the same damages Criterion asserted against Brooks, with the exception of converting the claim for Brooks’ breach of fiduciary duty to a civil conspiracy to breach fiduciary duty (Count VII). Considering that the suit against Brooks called for damages resulting from lost contracts with Lockheed and the SSA, Criterion does not allege any separate bases for damages against Lockheed. Criterion has thus presented no evidence to suggest that Lockheed intentionally accepted proprietary information and trade secrets with its decision to hire Brooks or its use of Brooks on the SSA project. Additionally, the damages, evidence, and facts do not differ materially between the cases. The court therefore agrees with Lockheed that Criterion’s claims are not independent from the claims asserted in the prior suit. c. Change of Circumstances Last, Criterion argues that there has been a change of circumstances in the case, requiring that this case should be treated differently than the earlier litigation between Brooks and Criterion. Criterion cites Kimmel and section 24 of the Restatement (Second) of Judgments, comment f for the proposition that “changed circumstances afford a basis for concluding that the second action constitutes a different claim from the first.” Kimmel, 339 N.W.2d at 379. The changed circumstances in this case, according to Criterion, include: new information about the relationship among Brooks, Lockheed, and the SSA; Brooks’ creation of 10 documents for Lockheed; and the SSA publishing the Section 508 information “to all section 508 coordinators across the country.” (Pl.’s Br. in Resistance, dkt. 95-2 at 45.) Lockheed opposes the characterization of this information as “changed circumstances,” because “it is undisputed- that Criterion discovered, or at a minimum, should have discovered, during state court litigation , all of the circumstances that form of [sic] the basis of its claims in the current suit.” (Def.’s Reply Br., dkt. 112 at 18.) As discussed previously, Criterion admits that it was aware that Brooks did work for the SSA and that Brooks may have been the influencing factor behind the abrupt termination of the contract talks with SSA and Lockheed. Criterion knew that Brooks breached her restrictive covenant; there was a corresponding duty to investigate the extent of her contractual violations. For example, Criterion could have subpoenaed Lockheed and SSA in the prior suit if Criterion found Brooks’ answers lacked detail. Criterion’s counterclaim to Brooks’ petition was in July 2006 (Def. Appx. at 0012), the state suit final order was issued in July 2007 (Def. Appx. at 0038), and Criterion did not initiate its suit against Lockheed until September 2007 (Def. Appx. at 0091). Criterion’s abrupt suit against Lockheed following its small damage recovery in the Brooks suit does not suggest changed circumstances, but does indicate Criterion sought additional recovery based on vicarious liability. The court finds that there is not a substantial change in circumstances present between the two cases to overcome claim preclusion. S. Claim Preclusion Conclusion Lockheed contends that Criterion’s claims would hold Lockheed vicariously liable for Brooks’ actions, and argues that under Iowa law, where claims have resulted in a judgment against an individual, the same plaintiff cannot then bring a claim against another individual or company that is in privity or vicariously liable. Criterion responds that (1) claim preclusion only applies to the same parties, (2) the issues were not fully litigated during the first case, (3) its claims against Lockheed involve different facts and are thus independent to the prior suit, and alternatively, (4) there is a change in circumstances present to warrant not applying claim preclusion. The court rejects Criterion’s counter-arguments to the extent that the issues were not fully litigated during the first case, the claims against Lockheed are independent to that of Brooks, and that a change in circumstances could overcome claim preclusion. Criterion has not presented sufficient evidence to support these counterarguments. Furthermore, the court finds that there are no genuine issues of material fact as to whether Brooks’ employment (or privity) with Lockheed would result in vicarious liability for Lockheed. Lockheed can assert party privity and claim preclusion as a shield against Criterion’s claims. The court therefore grants summary judgment to Lockheed on Counts II, III, and V based solely upon Lockheed’s assertion that the claims are precluded by the prior Polk County suit. D. Failure to Establish a Prima Facie Case on Counts I, II, and VIII Lockheed asserts that the court should grant summary judgment on Criterion’s Intentional Interference with a Contract (Count I), Unjust Enrichment (Count II), and Civil Conspiracy to Breach Fiduciary Duties (Count VIII) claims because Criterion has failed to establish prima facie claims. The non-movant may not rest upon mere allegations in its pleading, but must set forth specific facts “showing the existence of a genuine issue for trial.” Ce-men Tech, Inc. v. Three D Indus., L.L.C., 753 N.W.2d 1, 5 (Iowa 2008). 1. Intentional Interference with a Contract Criterion asserts that Lockheed intentionally interfered with the restrictive covenant agreement between Criterion and Brooks by accepting proprietary information belonging to Criterion. Lockheed disagrees because it was unaware of any contractual provisions that would prevent Brooks from performing the work in question. Under Iowa law, the elements to establish intentional interference with a contract are: (1) the existence of a valid contractual relationship, (2) knowledge of the relationship on the part of the interfering party, (3) intentional and improper interference that induced or caused a breach or termination of the contract, and (4) damages. Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 763 (Iowa 1999) (internal citations omitted); Kern v. Palmer College of Chiropractic, 757 N.W.2d 651, 657-68 (Iowa 2008). A valid claim for tortious interference with a contract only arises with a valid contract. Bump v. Stewart, Wimer, & Bump, P.C., 336 N.W.2d 731, 737 (Iowa 1983). However, a claim may also be based on a “prospective business relationship that has not yet been reduced to contract.” Economy Roofing & Insulating Co. v. Zumaris, 538 N.W.2d 641, 651 (Iowa 1995). Iowa Model Civil Jury Instruction 1200.7 defines a prospective business relationship as a “reasonably likely contract of financial benefit to the plaintiff’ or “a reasonably likely business relationship of financial benefit to the plaintiff.” Id. (written agreement existed between Economy and Alcoa, such that combination of agreement with other improper actions of interferer resulted in a “scheme to financially harm or destroy Economy’s business.”). See also Restatement (Second) of Torts § 766B cmt. c. The second prong establishes that the interfering party’s knowledge does not need to be actual, as “it is sufficient that the defendant had knowledge of facts which, if followed by reasonable inquiry, would have led to the disclosure of the contractual relationship between plaintiff and third parties.” Revere Transducers, Inc., 595 N.W.2d at 764. See Iowa Civil Jury Instruction 1200.4 (2004); ACT. Inc. v. Sylvan Learning Systems, Inc., 296 F.3d 657 (8th Cir.2002). The third prong requires conduct that was unfair and unreasonable under the circumstances. Nesler v. Fisher & Comp., Inc., 452 N.W.2d 191, 197 (Iowa 1990). Courts consider a multitude of factors, including: the nature of the conduct, defendant’s motive, interests of the party with which the conduct interferes, defendant’s interests sought to be advanced, social interests to protect freedom of action and contractual interests of the parties, degree of nearness of defendant’s conduct to the interference, and the relations between the parties. Id. See also Rail Intermodal Specialists, Inc. v. Gen. Elec. Capital Corp., 103 F.3d 627 (8th Cir. 1996); Sawheny v. Pioneer Hi-Bred Int’l, Inc., 93 F.3d 1401 (8th Cir.1996). Interfering actions are not wrongful if they are undertaken to advance the defendant’s own business interests, Fin. Marketing Serv., Inc. v. Hawkeye Bank & Trust of Des Moines, 588 N.W.2d 450 (Iowa 1999), or when conduct is merely a consequence resulting from “actions taken for a purpose other than to interfere with a contract.” Green v. Racing Ass’n of C. Iowa, 713 N.W.2d 234, 244 (Iowa 2006) (citing Berger v. Cas’ Feed Store, Inc., 543 N.W.2d 597, 599 (Iowa 1996)). Interference is intentional if done “on purpose or [the defendant] knows the conduct is substantially certain to interfere.” Iowa Model Civil Jury Instructions 1200.6 (2004); see also Restatement (Second) of Torts § 766 cmt. j. The plaintiff has a higher burden to prove interference with a prospective business advantage, as the plaintiff must prove “that defendant acted with the purpose of injuring or destroying plaintiffs business; if a business acts for more than one purpose, the improper purpose must predominate to establish liability.” EFCO Corp. v. Symons Corp., 219 F.3d 734, 744 (8th Cir.2000); see also Iowa Model Civil Jury Instructions 1200.8 (2004). There is no tortious interference