Sample Defendant’s Motion to Dismiss and Memorandum in Support 
____________________________________________
United States District Court, District of [district].
[name of Plaintiff], 
Plaintiff,
v.
[name of Defendant],
Defendant.
No. [number].
[date].
____________________________________________
Defendant’s Memorandum in Support of Defendant’s Motion to Dismiss and for Costs and Fees
[names and addresses of Counsel for Defendant]
For the Defendant [name of Defendant].
[Name of Defendant] (“Defendant”) submits this memorandum of law in support of his motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). [Name of Plaintiff] (“Plaintiff”) alleges Defendant misappropriated trade secrets in violation of the Defend Trade Secrets Act of 2016 (“Defend Trade Secrets Act”), 18 U.S.C. § 1836(b)(1), and the Massachusetts Trade Secrets Act, M.G.L. c. 93, § 42 and M.G.L. c. 266, § 30, and converted property, but the Complaint ultimately fails to state a claim upon which relief can be granted.
The Complaint should be dismissed because:
•	The Defend Trade Secrets Act immunizes parties for violations of the Act and any related state trade secrets actions in the exact circumstances described in the Complaint. A party is immune when the party discloses trade secrets to an attorney for the purposes of reporting or investigating a suspected violation of state or federal law. 18 U.S.C. § 1833(b)(1).
•	Plaintiff knew prior to bringing the present action that Defendant had only disclosed materials he obtained from Plaintiff to his attorney for the purpose of reporting or investigating a suspected violation of law.
•	Finally, the Court should dismiss the Plaintiff’s claims pursuant to the Defend Trade Secrets Act and the Massachusetts Trade Secrets Act and sanction Plaintiff for knowingly bringing this cause of action in bad faith.
Background
Defendant began his employment with a predecessor company to Plaintiff in [year]. Complaint, ¶[citation]. In or around [date], Defendant was promoted to [description of title] benefits. Id. at ¶[citation]. In or around [date], Defendant became concerned about the legality of certain actions undertaken by Plaintiff and removed materials that related to these actions to seek legal advice. Id. at ¶¶[citation].
In a letter dated [date], Defendant’s counsel contacted Plaintiff to alert it to the fact that he had taken custody of all materials obtained by Defendant as he and Defendant believed the documents “may be evidence or otherwise have a material bearing on certain matters which are the subject of both historical and current governmental inquiries concerning the business practices of Plaintiff.” Ex. M. In a letter dated [date], Plaintiff’s counsel acknowledged that the documents provided to Plaintiff’s attorney were related to an investigation. Ex. N. In a letter dated [date], Defendant’s counsel once again informed Plaintiff that the documents had been secured to prevent their destruction “pending both internal and apparent external investigations of misconduct at Plaintiff.” Id. at Ex. O. Counsel for Defendant further offered to have the materials held in escrow so long as both parties could have unfettered access to the materials. Id.
Further, in an email exchange dated [date], counsel for Defendant once again informed counsel for Plaintiff that Defendant provided the documents to his counsel to obtain an “analysis of his legal position vis a vis his employer and the issue of his employer’s compliance with the regulatory settlement agreement to which it was a party.” Id. at Ex. R. Despite informing Plaintiff about Defendant’s purpose in bringing the materials to his counsel and attempts by his counsel to work with Plaintiff to ensure that the materials were protected pursuant to any potential investigation, Plaintiff brought this present action.
Discussion
I. Legal Standard
To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The Court must accept each allegation in a complaint as true. Ashcroft, supra 556 U.S. at 678. “Where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief.” Id. at 679. “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) quoting Bell Atlantic, supra 550, U.S. at 555. A motion to dismiss should be granted when, “taking the allegations in the Complaint as true, ‘it appears beyond a doubt that the plaintiff cannot prove any set of facts in support of [its] claim which would entitle [it] to relief.’ “Herb Chambers I-93, Inc. v. Mercedes-Benz of North America, 911 F. Supp. 34, 36 (D. Mass. 1995) quoting Negron- Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994).
II. Defendant is Immunized for his Actions Pursuant to the Defend Trade Secrets Act of 2016
The Defend Trade Secrets Act provides that:
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and solely for the purpose of reporting or investigating a suspected violation of law.
18 U.S.C. § 1833(b)(1) (emphasis added).
Here, it is both not disputed and specifically alleged that Defendant brought all materials he obtained from Plaintiff to his attorney for the purposes of “reporting or investing a suspected violation of law.” Id. The Complaint does not allege, and cannot allege, that Defendant intended to do anything with the materials other than to bring them to his attorney. In fact, the Complaint omits any allegation other than that the materials were provided to an attorney for guidance because Plaintiff knows they were provided solely for that reason.
Plaintiff was notified prior to filing its present Complaint that counsel for Defendant was in possession of the material and he held them as evidence “on certain matters which are the subject of both historical and current governmental inquiries concerning the business practices of Plaintiff.” Complaint, Ex. O. Defendant’s actions placed him specifically within the intended exceptions pursuant to the Defend Trade Secrets Act. Defendant is immunized against claims that he violated either the Defend Trade Secrets Act or the Massachusetts Trade Secrets Act. As such, Count I and Count II of the Compliant should be dismissed for failure to state a claim for which relief can be granted.
The exception provision of the Act, 18 U.S.C. § 1833(b), was created precisely for this scenario: to provide an employee of an organization the opportunity to seek legal guidance when that employee becomes concerned his organization has engaged in illegal activities. To find otherwise would simply encourage future organizations to bring preemptive lawsuits against their employees when those employees look to obtain legitimate legal advice. This would clearly be contrary to the purpose of the provision, which was to allow employees to obtain legal guidance from their attorney and to report violations of the law to Federal, State, or local government officials.
The Complaint does not allege that the materials or “trade secrets” obtained by Defendant have any specific value to him. As such, Plaintiff cannot now oppose this motion to dismiss by claiming that Defendant planned to do anything with the documents other than what he did, which was to provide these materials to his attorney for legal advice.
III.	Plaintiff’s Claim of Misappropriation Was Made in Bad Faith 
and Defendant Should be Awarded Legal Fees
Pursuant to the Defend Trade Secrets Act, a court may:
[I]f a claim of the misappropriation is made in bad faith, which may be established by circumstantial evidence, a motion to terminate an injunction is made or opposed in bad faith, or the trade secret was willfully and maliciously misappropriated, award reasonable attorney’s fees to the prevailing party.
18 U.S.C. § 1836(b)(3)(D) (emphasis added).
On [date], counsel for Defendant notified counsel for Plaintiff that Defendant had provided the materials to him as Defendant believed the documents “may be evidence or otherwise have a material bearing on certain matters which are the subject of both historical and current governmental inquiries concerning the business practices of Plaintiff.” Complaint, Ex. M. In a letter dated [date], Plaintiff's counsel acknowledged that documents were related to an investigation into a possible violation of law. Id. at Ex. N. Further, in letters dated [date] and [date], counsel for Defendant reiterated that all materials that had been taken by Defendant were provided to his attorney for the purpose of receiving legal advice pursuant to concerns of the business practices engaged in by Plaintiff. Plaintiff then filed this Complaint on [date].
Plaintiff was well aware prior to filing the instant Complaint that the sole reason Defendant took the materials was to provide these materials to his attorney for the purposes of reporting or investigating a suspected violation of law. In fact, Plaintiff's Complaint only alleges that Defendant provided the materials to his attorney. Further, the exhibits Plaintiff attached to the Complaint demonstrate that Defendant's counsel repeatedly notified Plaintiff that the material had been provided to him for the sole purpose of investigating a suspected violation of law. Complaint, Ex. M, O, R, T. As Plaintiff was well aware prior to filing the instant Complaint that Defendant provided the materials to his attorney for the purpose of investigating a suspected violation of the law, this Complaint could only have been filed in bad faith. As such, the Court should both dismiss the Complaint and award Defendant reasonable attorney's fees, pursuant to the statute.
IV. The Court Lacks Supplemental Jurisdiction over Remaining 
State Law Claims
Plaintiff's Complaint alleges the Court retains original jurisdiction over the matter pursuant to 28 U.S.C. § 1331 and over the state law claims pursuant to 28 U.S.C. § 1367. Supplemental jurisdiction provides limited jurisdiction such that district courts that otherwise have original jurisdiction may retain “jurisdiction over all other claims that are so related to claim in the action within such original jurisdiction.” 28 U.S.C. § 1367(a). “[P]retrial termination of a plaintiff's federal law claims [ …] and the absence of any other cognizable basis for federal jurisdiction, leave a federal court no real choice but to dismiss such a pendant state-law initiative.”Brennan v. Hendrigan, 888 F.2d 189, 196 (1st Cir. 1989) citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-727 (1966). In this matter, the sole basis of original jurisdiction for Plaintiff's Complaint is that Defendant violated the Defend Trade Secrets Act. As Plaintiff's allegations pursuant to the Defend Trade Secrets Act do not state a claim for which relief can be granted, Count II must fail for the same reason, and the Court does not retain supplemental jurisdiction over the remaining state law claim and Count III should be dismissed.
Conclusion
For the foregoing reasons, the Defendant respectfully requests the Court grant his Motion to Dismiss and award his costs and fees associated with this action.
Respectfully submitted, [name of Defendant],
Defendant,
By his attorneys,
[names and addresses of Attorneys for Defendant]
Date: [date]