                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                           March 30, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
GAEDEKE HOLDINGS VII LTD;
GAEDEKE OIL & GAS OPERATING,
LLC,

      Plaintiffs - Appellants/Cross-
      Appellees,

v.                                                    Nos. 16-6004 & 16-6017
                                                    (D.C. No. 5:11-CV-00649-M)
TODD BAKER, John Does 9 through 10;                         (W.D. Okla.)
LANDON SPEED,

      Defendants - Appellees/Cross-
      Appellants,

and

BAKER PETROLEUM AND
INVESTMENTS, INC.; DAVID MILLS,

      Defendants - Appellees,

and

WINDSOR ENERGY GROUP, LLC,

      Defendant.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges.
                   _________________________________

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      After a jury verdict, any party may move for a new trial under Federal Rule of

Civil Procedure 59(a). If the district court orders a new trial, it necessarily vacates

the jury’s verdict and its judgment. To reinstate a verdict and judgment, a party that

opposes the new trial must appeal after the new trial and convince us that the district

court erred in ordering a new trial. The case before us presents an unusual twist to

this general situation—here it is the party that moved for a new trial now seeking to

avoid the new trial’s less favorable result. It seeks to enforce its first judgment (while

reinstating damages the jury awarded for its unjust-enrichment claim). We hold that

it is stuck with the second judgment.

                                             I

      In its Complaint, Gaedeke Holdings VII, LTD and Gaedeke Oil & Gas

Operating, LLC (collectively Gaedeke) sued Landon Speed, Todd Baker, and Baker

Petroleum and Investments, Inc. (collectively Defendants), alleging that they had

used Gaedeke’s confidential geological study to profit on oil-and-gas leases.1 At trial,

Gaedeke asserted six claims against Defendants: (1) violation of the Oklahoma

Uniform Trade Secrets Act, Okla. Stat. tit. 78, § 85 (2009); (2) violation of the

Lanham Act, 15 U.S.C. § 1125(a)2; (3) misappropriation and conversion; (4) civil


      1
         Gaedeke’s Third Amended Complaint also asserts claims against David
Mills, Jim Ashford, Mayhem Oil and Gas, Inc., Windsor Energy Group, LLC, and
Everest Operations Management, LLC. In its opening brief, Gaedeke seeks relief
against only Todd Baker, Baker Petroleum, and Landon Speed.
      2
        Gaedeke asserted a reverse-passing-off claim. “The Lanham Act was
intended to make ‘actionable the deceptive and misleading use of marks,’ and ‘to
protect persons engaged in . . . commerce against unfair competition.’” Dastar Corp.
                                            2
conspiracy; (5) tortious interference; and (6) unjust enrichment, constructive trust,

and accounting. The jury found in Gaedeke’s favor except on its claim for tortious

interference with contract. On a special-verdict form, the jury awarded Gaedeke

$3,400,000 for unjust enrichment, $1,000,000 for misappropriation of trade secrets,

$1,000,000 for conversion, $1,500,000 for civil conspiracy, and $1,000,000 under the

Lanham Act.

      After the first trial, Defendants renewed their motion for judgment as a matter

of law (after first making a motion at the close of Gaedeke’s case in chief) seeking

relief on three grounds.3 First, Defendants argued that Gaedeke had lacked “standing

to sue on behalf of the AMI Partnership” because the AMI Partnership, rather than

Gaedeke, owned the trade secret.4 Appellees’ Supp. App. Vol. 1 at 210–13. From

this, Defendants argued that Gaedeke could not be the real party in interest under

Federal Rule of Civil Procedure 17. Second, Defendants argued that Gaedeke’s

unjust-enrichment claim needed to be dismissed because Gaedeke had an adequate

remedy at law. Defendants cited Oklahoma law providing that a district court “will

not ordinarily exercise its equitable jurisdiction to grant relief for unjust enrichment”

v. Twentieth Century Fox Film Corp., 539 U.S. 23, 28 (2003) (quoting 15 U.S.C.
§ 1127). Reverse passing off occurs when someone misrepresents owning goods or
services belonging to another. Id. at 27 n.1.
      3
        Defendants moved for judgment as a matter of law both after Gaedeke rested
and after Defendants presented their case. They renewed their motion for judgment as
a matter of law after the jury’s verdict.
      4
       Gaedeke is a partner of AMI Partnership. Defendants argued that before the
misappropriations, Gaedeke transferred the trade secret to the AMI Partnership and
Gaedeke sought damages on behalf of the AMI partners.
                                            3
where “a plaintiff has an adequate remedy at law.” Id. at 223. Defendants argued that

the Oklahoma Uniform Trade Secrets Act provided an adequate remedy at law,

defeating Gaedeke’s ability to pursue an equitable unjust-enrichment claim. Third,

Defendants argued that the Oklahoma Uniform Trade Secrets Act had displaced

Gaedeke’s common-law claims for conspiracy, conversion, and unjust enrichment.

Indeed, the Oklahoma Uniform Trade Secrets Act “displaces conflicting tort,

restitutionary, and other law of this state providing civil remedies for

misappropriation of a trade secret.” Okla. Stat. tit. 78, § 92(A). Defendants argued

that this statute required the district court to dismiss Gaedeke’s three common-law

claims.

       In resolving Defendants’ motion, the district court agreed with Gaedeke that it

was the real party in interest and had authority to bring the claims. But the district

court agreed with Defendants that Gaedeke’s common-law claims were unavailable

because “the Uniform Trade Secrets Act bars common law claims . . . that are based

entirely on factual allegations of misappropriation of trade secrets.” Appellant’s App.

at 202. The district court concluded that Gaedeke could not pursue its conspiracy and

conversion claims, because those claims depended on the same facts alleged to

support the claim for misappropriation of trade secrets. Finally, the district court

agreed with Defendants that Gaedeke could not pursue its equitable unjust-

enrichment claim, because “where a plaintiff has an adequate remedy at law, a court

will not ordinarily exercise its equitable jurisdiction to grant relief for unjust

enrichment.” Id. at 200.

                                             4
       The same day, the district court entered a judgment awarding $1,000,000 to

Gaedeke on its misappropriation-of-trade-secrets claim. After entry of this judgment,

Gaedeke filed a motion under Federal Rule of Civil Procedure 59 to alter or amend

the judgment to reinstate the jury’s award of $3,400,000 on Gaedeke’s unjust-

enrichment claim, or alternatively, for a new trial on damages. Gaedeke argued that

the Oklahoma Uniform Trade Secrets Act permits damages for unjust enrichment in

addition to actual damages. Next, Gaedeke argued that Defendants had waived their

argument that the Oklahoma Uniform Trade Secrets Act preempted their unjust-

enrichment claim by not raising their argument as an affirmative defense. Finally,

and alternatively, Gaedeke argued that absent the district court’s “amend[ing] the

judgment [to reinstate the jury’s unjust-enrichment award], the Court should, in the

interests of justice and fundamental fairness, grant a new trial as to damages.” Id.

at 240. On this point, Gaedeke argued that the district court had substantially

prejudiced it during the first trial by striking its expert-witness testimony on

damages.

       Over Defendants’ objections, the district court granted Gaedeke a new trial on

damages. The district court agreed that it had prejudiced Gaedeke by striking

Gaedeke’s expert witnesses without allowing Gaedeke to respond. The district court

stated “in light of this Order, the Court VACATES the Judgment . . . as to damages

only.” Id. at 389. In a footnote, the district court explained that “[t]he portion of the

Judgment whereby the Court orders that judgment should be entered in favor of

plaintiffs and against defendants . . . is not vacated.” Id. n.3. After granting a new

                                             5
trial on damages, the district court treated Gaedeke’s motion to alter or amend the

judgment as moot.

       In the second trial, despite Gaedeke’s presenting its previously excluded expert

testimony, the jury awarded Gaedeke just $40,000 in damages. The district court

entered a judgment for Gaedeke in that amount. Gaedeke appealed.

       On appeal, Gaedeke doesn’t argue that the district court erred in granting

Gaedeke’s motion for a new trial on damages. Nor does it argue that the district court

erred in any way during the second trial. Instead, Gaedeke disregards the second

jury’s verdict, arguing that the district court erred by reducing the first jury’s

damages award to $1,000,000. Specifically, Gaedeke argues that “[t]he trial court

erred when, after the first trial, it refused to render a judgment that awarded both

forms of damages cumulatively recoverable for misappropriation of a trade secret

under [the Oklahoma Uniform Trade Secrets Act]—unjust enrichment and actual

damages.” Appellant’s Opening Br. at 7.5

       In response, Defendants argue that because Gaedeke sought and received a

new trial on damages, the second jury’s verdict superseded the first jury’s verdict.

Defendants argue that Gaedeke cannot successfully move for a new trial on damages

and then later demand the higher verdict and judgment from the first trial.




       5
         On appeal, Gaedeke does not claim that the district court erred in dismissing
its claims for unjust enrichment, conspiracy, conversion, or violation of the Lanham
Act. Rather, Gaedeke claims the district court should have awarded the unjust-
enrichment damages as part of the misappropriation-of-trade-secrets claim.
                                             6
      For their part, Defendants cross-appeal the district court’s partial denial of

their Rule 50 motion for judgment as a matter of law (made after the first trial). See

Fed. R. Civ. P. 50. In particular, they argue that the district court erred by not

granting their motion, because Gaedeke presented no evidence that it owned the trade

secret. Defendants argue that ownership is an element of a claim for misappropriation

of trade secrets and that Gaedeke failed to prove this element.

                                            II

      We review de novo a district court’s order granting or denying a motion for

judgment as a matter of law, applying the same standard as applied in the district

court. Arnold Oil Props. LLC v. Schlumberger Tech. Corp., 672 F.3d 1202, 1206

(10th Cir. 2012). “Under Rule 50, a court should render judgment as a matter of law

when ‘a party has been fully heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on that issue.’” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000) (quoting Fed. R. Civ. P.

50(a)).

                                            A

      Before addressing the merits of Gaedeke’s appeal, we must determine whether

Gaedeke can appeal the district court’s earlier Order granting Defendants’ Rule 50

motion for judgment as a matter of law, which reduced Gaedeke’s damages by the

$3,400,000 the jury awarded for its unjust-enrichment claim. Defendants argue that

when Gaedeke obtained a new trial, the new trial necessarily vacated the district

court’s earlier judgment on damages. We agree.

                                            7
       After the jury’s verdict, Defendants renewed their motion for judgment as a

matter of law under Rule 50(b). The district court partially granted Defendants’

motion, dismissing Gaedeke’s claims for unjust enrichment, conversion, and

conspiracy. That same day, the district court entered judgment in favor of Gaedeke

for $1,000,000.

       Dissatisfied with that result, Gaedeke filed a motion under Rule 59 asking the

district court to alter or amend its judgment to restore the jury’s damage award on its

unjust-enrichment claim, or, alternatively, to grant a new trial on damages. Over

Defendants’ objections, the district court granted Gaedeke’s motion for new trial on

damages under Rule 59(a).

       In the second trial on damages, the district court allowed Gaedeke’s expert

witnesses to testify. Despite this testimony, the jury awarded Gaedeke a mere

$40,000 in damages. Gaedeke has appealed, asking us in effect to disregard the

second jury trial, to reinstate the jury’s first damages award, to reverse the district

court’s order granting Defendants’ Rule 50 motion, and to restore the damages for its

unjust-enrichment claim by adding it to the first jury’s damage award on their

misappropriation-of-trade-secrets claim. We decline Gaedeke’s invitation to do so.

       By seeking a new trial under Rule 59(a) after the district court declined to alter

or amend its judgment under Rule 59(e), Gaedeke chose to abandon the first jury’s

damages verdict. See Fed. R. Civ. P. 50(c)(2) advisory committee’s note to 1963

amendment. Once the district court granted Gaedeke’s motion for a new trial under



                                            8
Rule 59(a)(1)(A), “the judgment is superseded.”6 Id.; see United States v. Ayres, 76

U.S. 608, 610 (1869) (Granting a new trial “has the effect of vacating the former

judgment, and to render it null and void, and the parties are left in the same situation

as if no trial had ever taken place.”); McClendon v. City of Albuquerque, 630 F.3d

1288, 1294 (10th Cir. 2011) (explaining that an order withdrawing approval of a

class-action settlement agreement is similar to an order granting a new trial because it

vacates any earlier final decision); 12 Moore’s Federal Practice § 59.19 (3d ed. 2016)

(“When a court grants a Rule 59 new trial motion, the old judgment is of no effect

and the new ruling supplants the old judgment.”). Consistent with this background,

we hold that once Gaedeke sought and received a new trial, this vacated the jury’s

verdict and the corresponding judgment, pending possible reinstatement on appeal.

       Though opposing the new-trial motion in the district court, Defendants have

not appealed the district court’s order granting a new trial. Had they done so, and had

we agreed that the district court erred in granting the new trial, we could have

reinstated the district court’s judgment. See, e.g., Nat’l Farmers Union Auto. & Cas.

Co. v. Wood, 207 F.2d 659, 662 (10th Cir. 1953) (“[T]he two orders each purporting

to grant a new trial are vacated; and the cause is remanded with directions to reinstate

and reenter the original judgment.”); Wood v. Harrington, 133 F.3d 933, at *1 (10th

Cir. 1998) (unpublished) (“In that first appeal, we ordered the judgment from the

second trial to be vacated because defendants’ motion for a new trial had been

      6
       In contrast, where a party moves for a conditional new trial under
Rule 50(c)(2) depending on the outcome of the appeal, “the judgment will not be
superseded.” Id.
                                            9
granted on an impermissible ground, and ordered the judgment from the first trial to

be reinstated.”); 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2818 (3d ed. 2016) (“On appeal from the final judgment following the

second trial, the [party opposing the new trial] may claim error in the grant of the

new trial. If the appellate court agrees, it will reinstate the verdict reached at the first

trial.”). But because Gaedeke itself asked the district court to grant a new trial on

damages, it cannot now complain that it got its wish.7 Thus, Gaedeke may not

reinstate the district court’s judgment from the first trial. Gaedeke has no legal basis

to pick and choose jury verdicts.

                                             B

       Appealing the district court’s partial denial of their Rule 50 motion renewed

after the first jury’s verdict, Defendants argue that the district court should have

dismissed Gaedeke’s claim for misappropriation of trade secrets because Gaedeke

presented no evidence that it owned the trade secret.

       Defendants argue that Gaedeke transferred the trade secret to the AMI

Partnership before Defendants misappropriated any trade secrets. The AMI

Partnership comprises working-interest owners. Gaedeke is one of AMI’s partners

and sought damages on behalf of the AMI partners. Because the AMI Partnership

       7
         Gaedeke doesn’t dispute that the district court vacated its judgment. Instead,
Gaedeke merely asserts that it did not receive the full relief it requested since it
alternatively moved for a motion to alter or amend the district court’s judgment. We
agree that Gaedeke would be permitted to review the district court’s order granting
the new trial. But as we explained above, the district court didn’t err in granting
Gaedeke’s motion for new trial and Gaedeke doesn’t assert that it did. Gaedeke
provides no grounds for us to reinstate the jury’s verdict.
                                             10
owned the trade secret, not Gaedeke, Defendants argue that Gaedeke failed to prove

its ownership of the trade secret—which Defendants say is an element of a claim for

misappropriation of trade secrets. In contrast, Gaedeke argues that it acquired the

right to possess and use the trade secret and retained that right even after it

transferred the trade secret. To resolve this dispute, we must determine whether

ownership is an element of a claim for misappropriation of trade secrets under

Oklahoma law.

      “When the federal courts are called upon to interpret state law, the federal

court must look to the rulings of the highest state court.” Johnson v. Riddle, 305 F.3d

1107, 1118 (10th Cir. 2002). If no decision by that court exists, then we must apply

“what [we] find to be the state law after giving ‘proper regard’ to relevant rulings of

other courts of the State.” Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070,

1077 (10th Cir. 2007) (quoting Johnson, 305 F.3d at 1119). “The decision of an

intermediate appellate state court ‘is a datum for ascertaining state law which is not

to be disregarded by a federal court unless it is convinced by other persuasive data

that the highest court of the state would decide otherwise.’” Id. (quoting West v.

American Tel. & Tel. Co., 311 U.S. 223, 237 (1940)).

      Like many other states, Oklahoma has adopted the Uniform Trade Secrets Act.

Okla. Stat. tit. 78, § 85. Nothing in Oklahoma’s Act defines ownership of the trade

secret as an element of a claim for misappropriation of trade secrets. Id. tit. 78,

§ 88(A) (stating that a “complainant is entitled to recover damages for

misappropriation”). And no court reviewing Oklahoma law has included ownership

                                            11
as an element of a claim for misappropriation of trade secrets. For example, in MTG

Guarnieri Mfg., Inc. v. Clouatre, 239 P.3d 202, 209 (Okla. Civ. App. 2010), the

Oklahoma Court of Civil Appeals stated that “[t]o prove misappropriation of a trade

secret, [a plaintiff] must show (i) the existence of a trade secret, (ii) misappropriation

of the secret by defendants, and (iii) use of the secret to [the plaintiff’s] detriment.”

See also Musket Corp. v. Star Fuel of Oklahoma, LLC, 606 F. App’x 439, 451 (10th

Cir. 2015) (unpublished) (not including ownership as an element of a claim for

misappropriation of trade secrets under Oklahoma law); Pre-Paid Legal Servs., Inc.

v. Cahill, 171 F. Supp. 3d 1219, 1227 (E.D. Okla. 2016) (same); Micro Consulting,

Inc. v. Zubeldia, 813 F. Supp. 1514, 1534 (W.D. Okla. 1990) (same).

       This position is consistent with other states that have adopted similar versions

of the Uniform Trade Secrets Act. For instance, Maryland’s Uniform Trade Secrets

Act is nearly identical to Oklahoma’s. Compare Md. Code Ann., Com. Law

§ 11-1201 (West 2017) with Okla. Stat. tit. 78, § 85. In DTM Research, L.L.C. v.

AT&T Corp., 245 F.3d 327, 333 (4th Cir. 2001), the court, applying Maryland law,

concluded that “fee simple ownership in its traditional sense is not an element of a

trade secrets misappropriation claim in Maryland.” The court explained that “the

concept of a ‘fee simple’ interest in a trade secret, or any proprietary interest, is not

entirely useful in defining the elements of a misappropriation claim.” Id. at 332; see

also DaimlerChrysler Servs. v. Summit Nat’l, No. 02-71871, 2006 WL 1420812,

at *8 (E.D. Mich. May 22, 2006) (“The Court agrees with the holding in DTM

Research that for purposes of trade secrets law, the focus is appropriately on the

                                            12
knowledge, or possession, of the trade secret, rather than on mere ‘ownership’ in the

traditional sense of the word.”); Parking Co., L.P. v. Rhode Island Airport Corp., No.

Civ. A. P.B. 2004-4189, 2005 WL 419827, at *3 (R.I. Super. Ct. Feb. 18, 2005)

(“Although the holder of a trade secret may be considered to have acquired a

property right therein . . . the [Uniform Trade Secrets] Act does not require

ownership. . . . [I]t is possession, not ownership or title, which is the relevant

inquiry.”).

       Oklahoma adopted the Uniform Trade Secrets Act originally drafted by the

National Conference of Commissioners. See Okla. Stat. tit. 78, § 85. The Uniform

Act’s commentary also suggests that its drafters did not intend to limit trade-secret

claims to owners. For instance, the commentary states that “[w]here more than one

person is entitled to trade secret protection with respect to the same information, only

that one from whom misappropriation occurred is entitled to a remedy.” Uniform

Trade Secrets Act § 2 cmt. (2005). This comment suggests that multiple parties could

be entitled to trade-secret protection. If the drafters had intended to limit trade-secret

protection to owners, they could have easily stated “where more than one owner is

entitled to trade secret protection.”

       We acknowledge that Defendants have also provided authority from other

states suggesting that ownership is a required element of a claim for misappropriation

of trade secrets. See, e.g., Surgidev Corp. v. Eye Tech., Inc., 648 F. Supp. 661, 680

(D. Minn. 1986) (“[P]laintiff . . . must prove the following elements: (1) plaintiff is

the owner of a trade secret . . . .”). But many of these cases are easily distinguishable.

                                            13
For example, under Minnesota law, applied by the court in Surgidev, the statute

defining a trade secret specifically refers to whether “the owner intends or expects

the secrecy of the type of information comprising the trade secret to be maintained.”

Minn. Stat. Ann. § 325C.01 (West 2017) (emphasis added). Unlike Minnesota’s

statutory language, Oklahoma’s statutory definition of trade secret makes no

reference to the “owner” of the trade secret.

      Every court applying Oklahoma law has omitted ownership as a required

element. Faced with Oklahoma courts repeatedly omitting ownership as an element,

the commentary to the Uniform Trade Secrets Act, and distinguishing language in

other states’ statutes, we see no basis to apply a new element for a claim for

misappropriation of trade secrets under Oklahoma law. Thus, the district court did

not err in partially denying Defendants’ motion for judgment as a matter of law.

                                          III

      For these reasons, the district court’s judgment is affirmed.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




                                          14
