IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEBRASKA 

AKSARBEN PROPERTY 

MANAGEMENT, LLC, 

Plaintiff, 

 v. 

VERTICAL FOCUS LLC; WENDY 

KREIS, and ASHLYNE SVOBODA, 

Defendants.

7:23CV5000 

MEMORANDUM 

AND ORDER 

This matter is before the Court on defendants Vertical Focus LLC (“Vertical 

Focus”), Wendy Kreis (“Kreis”), and Ashlyne Svoboda’s (“Svoboda” and collectively, the 

“defendants”) Motion to Dismiss (Filing No. 2) plaintiff Aksarben Property Management, 

LLC’s (“Aksarben”) complaint (Filing No. 1-1) for failure to state a claim pursuant to 

Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the defendants’ 

motion is granted as to Svoboda but otherwise denied. 

I. BACKGROUND1

Aksarben owns properties and manages others’ properties for leasing throughout 

Nebraska. On November 28, 2022, Aksarben and Vertical Focus executed an Asset 

Purchase Agreement (the “Agreement”) under which Aksarben agreed to purchase for 

$200,000 “all the rights and interests of” Vertical Focus’s property management service—

which operated under the trade name “Kearney Rental Pros.” At the time the parties 

executed the Agreement, Vertical Focus was wholly owned by Kreis and Svoboda. 

1

For the purpose of considering the present motion brought under Rule 12(b)(6), the 

Court accepts the well-pleaded factual allegations in the complaint as true and views them 

in the light most favorable to the plaintiff. See Rinne v. Camden County, 65 F.4th 378, 383 

(8th Cir. 2023). 

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Aksarben’s allegations and the recitals in the Agreement indicate that a significant 

part of the purchased assets’ value was derived from Vertical Focus’s residential lease 

agreements entered into “on behalf of its property owners” as well as its “property 

management contracts with property owners.” Aksarben’s purchase entitled it to those 

contracts and lease agreements, as well as Vertical Focus’s goodwill, books, records, lists, 

and files. The purchased files included electronic files with business information, some of 

which was contained in Vertical Focus’s “Rent Manager” database. According to 

Aksarben, the Rent Manager files included information on Vertical Focus’s “Owner 

Contracts, Lease Agreements, its managed properties, contact information for the property 

owners, and fee structures.” 

The Agreement provided that the sale would be final on the closing date of 

January 2, 2023, at which time Vertical Focus was to “deliver possession of the Purchased 

Assets included in the sale to” Aksarben, which would then “have ownership and

possession of the Purchased Assets.” Vertical Focus also represented and warranted it had 

“not otherwise contracted to sell, pledge, or mortgage all or part of the” assets purchased 

by Aksarben. 

Other duties in the Agreement likewise require Vertical Focus to maintain the value 

of the sold business. First, the Agreement requires Vertical Focus to “encourage its former 

clients to continue doing business with” Aksarben. Second, the Agreement binds Vertical 

Focus to a “Covenant Not to Compete” which prohibits it from engaging—directly or 

indirectly—in a competing business or trade2 “within a radius of 100 miles from [] 

Kearney, [Nebraska,] for a period of two (2) years.” 

On December 31, 2022, Kreis allegedly informed Aksarben that her company would 

no longer have access to the Rent Manager database. The closing date arrived just two 

2

The Agreement expressly prohibits Vertical Focus and its representatives from 

“providing property management services.” 

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days later, at which time Aksarben paid Vertical Focus $200,000 and the purchase was 

finalized. 

In March 2023, an Aksarben representative reportedly had a verbal altercation with 

a fellow real-estate businessperson, Gary Sorensen (“Sorensen”). Sorensen’s company, 

GSGC Leasing, L.L.C. (“GSGC”), “owned and/or controlled” some of the properties for 

which Vertical Focus—and, after the sale, Aksarben—provided property management 

services. Sorensen had also been an investor in Vertical Focus prior to the Agreement’s 

execution. Aksarben alleges that—two months after the sale—Sorensen became 

belligerent on a phone call with an Aksarben representative, who consequently relayed to 

him that Aksarben no longer desired to do business with GSGC. In response, “Sorensen 

threatened to destroy Aksarben’s business.”

Sorensen then reached out to Kreis and demanded she provide him Vertical Focus’s 

client lists and electronic files. Despite the fact that those files had been purchased and 

transferred to Aksarben for its purportedly exclusive use, Vertical Focus had “retained a 

copy and/or access to the electronic files and the information contained in the Rent 

Manager database.” With this access, Kreis complied with Sorensen’s demands, providing 

him the information contained in the Rent Manager database, as well as other electronic 

files. Aksarben alleges that Kreis did so with the understanding that Sorensen planned “to 

use [the files] in the Rent Manager database to reach out to Aksarben’s clients.”

Through use of these files, some of which pertained to “clients and properties not 

related to Sorensen’s properties,” Sorensen emailed all of the owners and tenants listed in 

the Rent Manager files on March 12, 2023. In his email, “Sorensen claimed he was taking 

over the management of his properties and instructed all tenants and owners, including 

non-tenants of his, to pay their rent to him.” Two days later, an Aksarben representative 

spoke with Kreis, who admitted to Sorensen’s request and her subsequent transfer of the 

files. Suggesting some further sign of impropriety, Aksarben states that Sorensen later 

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hired Kreis’s husband, and Svoboda’s father, after Kreis transferred the Rent Manager 

files.3

Aksarben filed the present complaint against Vertical Focus, Kreis, and Svoboda in 

the District Court of Buffalo County, Nebraska, on April 17, 2023. Aksarben seeks relief

under Nebraska and federal law, stating it has suffered a currently uncertain amount of 

damages in the form of “lost reputation and goodwill, lost competitive advantage, and lost 

business and profits” caused by the defendants’ alleged misconduct. Namely, Aksarben 

alleges the defendants’ actions resulted in a breach of contract entitling them to damages 

or, alternatively, recission. Aksarben also states that the alleged transfer of the Rent 

Manager files violates both Nebraska and federal trade-secrets laws. See Neb. Rev. Stat. 

§ 87-501 et seq.; 18 U.S.C. § 1832 et seq. 

The defendants subsequently removed (Filing No. 1) the action to this Court 

pursuant to 28 U.S.C. §§ 1331 and 1441. The Court has subject matter jurisdiction over 

the matter as Aksarben’s claim under the Defend Trade Secrets Act of 2016 (“DTSA”), 18 

U.S.C. § 1832 et seq., gives the Court jurisdiction under 28 U.S.C. § 1331, and the state 

claims are so related to Aksarben’s DTSA claim that they “form part of the same case or 

controversy,” 28 U.S.C. § 1367(a), and should be heard together through exercise of the 

Court’s supplemental jurisdiction. See, e.g., West Point Auto & Truck Ctr., Inc. v. Klitz, 

492 F. Supp. 3d 936, 939-41 (D. Neb. 2020) (finding the Court had subject-matter 

jurisdiction over the plaintiff’s DTSA claim as well as Nebraska trade-secrets claim and 

other state-law claims falling within the Court’s supplemental jurisdiction). 

3

Aksarben has also filed a lawsuit against Sorensen in this Court for his involvement 

in the alleged scheme to obtain and utilize the Rent Manager information to harm 

Aksarben’s business. See Aksarben Prop. Mgmt., LLC v. Sorensen et al., Case No. 

8:23CV151. 

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II. DISCUSSION

A. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) requires that Aksarben’s complaint include 

“a short and plain statement of the claim showing that the pleader is entitled to relief.” This 

requirement is necessary “to ‘give the defendant fair notice of what the . . . claim is and the 

grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing 

Conley v. Gibson, 355 U.S. 41, 47 (1957)). While Aksarben’s complaint “does not need 

detailed factual allegations” to support its claims, id., its pleadings must contain enough 

factual allegations for “the court to draw the reasonable inference that the defendant[s]

[are] liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(describing the “plausibility standard” to survive a motion to dismiss for failure to state a 

claim for relief).

Although the Court treats the pleading’s facts as true, it is not required to accept 

“mere conclusory statements” or legal conclusions contained in Aksarben’s complaint. 

Any such legal conclusions “must be supported by factual allegations.” Iqbal, 556 U.S. at 

678-79; see Warmington v. Bd. of Regents of Univ. of Minn., 998 F.3d 789, 797 (8th Cir. 

2021) (concluding the district court was not bound by the plaintiff’s “pleading that the 

University terminated her on the basis of her sex” since it was a legal conclusion “not 

supported by the factual allegations in her complaint.”).

B. Aksarben’s Claims against Svoboda

As an initial matter, the Court agrees with the defendants that “[n]early every 

mention of Svoboda in the Complaint is a legal conclusion unsupported by factual 

allegations.” All of Aksarben’s factual allegations regarding the improper transfer of Rent 

Manager files to Sorensen pertain to the alleged actions of Kreis; nowhere is there any 

indication that Svoboda, herself, is alleged to have been involved in these events. 

Therefore, Aksarben’s claims are dismissed as to Svoboda as they are only supported by 

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conclusory allegations and, as such, cannot survive the defendants’ Rule 12(b)(6) motion 

to dismiss.4

 C. Aksarben’s Claims Against Vertical Focus and Kreis 

1. Breach-of-Contract Claims 

To survive the defendants’ motion to dismiss on its breach-of-contract claims, 

Aksarben’s complaint “must plead . . . the existence of a promise, its breach, damage, and 

compliance with any conditions precedent that activate the [defendants’] duty.” United 

States v. Neb. Beef, Ltd., 901 F.3d 930, 934 (8th Cir. 2018) (quoting Henriksen v. Gleason, 

643 N.W.2d 652, 658 (Neb. 2002)). “A breach is the nonperformance of a duty.” Id.

(quoting Weber v. N. Loup River Pub. Power and Irrigation Dist., 854 N.W.2d 263, 271 

(Neb. 2014)). 

The defendants argue that Aksarben’s complaint does not point to any duty placed 

on them in alleging a breach of the Agreement. A quick look at Aksarben’s pleadings 

demonstrates otherwise—Aksarben identifies a variety of provisions in the Agreement in 

indicating the promises they believe were breached by Kreis’s actions. 

First, Aksarben states that the copying and transfer of the Rent Manager files 

violates the Agreement because “[p]ursuant to [that] Agreement, Defendant Vertical Focus 

provided Plaintiff Aksarben with its business assets, including the” Rent Manager files and 

promised it had not “otherwise contracted to sell, pledge, or mortgage” those assets. 

Aksarben also cites Vertical Focus’s sale of its goodwill and the “covenant not to compete 

in a similar property management business within a 100-mile radius of Kearney for a period 

of two years from the Closing Date” to which Vertical Focus agreed. See Unlimited 

Opportunity, Inc. v. Waadah, 861 N.W.2d 437, 443 (Neb. 2015) (stating that “Nebraska 

4

Aside from their separate argument about Svoboda, the defendants generally fail to 

clearly distinguish between themselves in responding to Aksarben’s claims. In reviewing 

their motion, the Court has, therefore, not drawn any further distinctions between the 

defendants that they have not made. 

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courts are generally more willing to uphold promises to refrain from competition made in 

the context of the sale of goodwill as a business asset” and such covenants are valid if

reasonable). Its complaint discernably alleges the defendants breached these duties by 

transferring the electronic information “already purchased by Aksarben and no longer an 

asset of Vertical Focus,” and by “[allowing] the competitor, along with Defendant Kreis’ 

husband and the father of Defendant Svoboda, [to use] the electronic information to cause 

property owners to cancel their contracts and leases with” Aksarben.

These allegations, while thin in some respects, undermine the defendants’ broad 

assertion that Aksarben “fails to point to a duty in the Agreement corresponding with [the] 

alleged breach.” Because the defendants make no arguments urging dismissal of 

Aksarben’s breach-of-contract claims beyond this assertion of total lack of notice, the 

Court denies their motion to dismiss Aksarben’s breach of contract claims in their First and 

Second Causes of Action.

2. Misappropriation-of-Trade-Secrets Claims

Next, the defendants argue Aksarben’s complaint “cannot state a plausible 

misappropriation [of trade secrets] claim” as it contains only “threadbare factual 

allegations.” More specifically, the defendants assert that Aksarben’s complaint gives no 

notice of what it “claims is a protectable trade secret,” “fails to allege any efforts it took to 

maintain the secrecy” of any trade secret, and does not adequately allege the defendants 

engaged in any type of misappropriation. The Court finds these arguments, which deny

the mere existence of many of Aksarben’s factual allegations, are overly reductive of 

Aksarben’s complaint and are, therefore, unavailing.

Aksarben’s complaint alleges the transfer of electronic files to Sorensen constitutes 

a misappropriation of trade secrets under Nebraska and federal law. See Neb. Rev. Stat. 

§ 87-501 et seq.; 18 U.S.C. § 1832 et seq. The Nebraska Trade Secrets Act (“NTSA”), see 

Neb. Rev. Stat. § 87-501 et seq., defines a trade secret as 

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[I]nformation, including, but not limited to, a drawing, formula, pattern, 

compilation, program, device, method, technique, code, or process that: 

(a) Derives independent economic value, actual or potential, 

from not being known to, and not being ascertainable by proper 

means by, other persons who can obtain economic value from its 

disclosure or use; and 

(b) Is the subject of efforts that are reasonable under the 

circumstances to maintain its secrecy. 

Neb. Rev. Stat. § 87-502. 

To allege a violation of the NTSA, Aksarben must not only plead the existence of 

such a trade secret, but also that the trade secret was misappropriated by the defendants. 

See Neb. Rev. Stat. § 87-504. Nebraska law defines misappropriation to include the 

“[d]isclosure or use of a trade secret without express or implied consent” where the person 

“used improper means to acquire knowledge of the trade secret” or “knew or had reason to 

know that [their] knowledge of the trade secret” was improperly acquired or utilized in 

some manner. Neb. Rev. Stat. § 87-502.5

 First, though the complaint’s language is not always clear, its factual allegations 

plausibly allege that Aksarben’s trade-secrets claims are predicated on Kreis’s disclosure 

of the Rent Manager files. Thus, Aksarben’s allegations give sufficient notice that the 

information they are claiming to include trade secrets are those electronic files containing 

information related to “Owner Contracts, Lease Agreements, its managed properties, 

contact information for the property owners, and fee structures.” 

5

The defendants do not distinguish in their arguments between the state and federal 

trade-secrets law because “[t]he definition of a trade secret under the NTSA [and the 

DTSA] is largely identical.” Yant Testing, Supply & Equip. Co. v. Lanker, Case 

No. 8:20CV64, 2020 WL 1030724, at *5 (D. Neb. March 3, 2020). Thus, the Court finds 

the conclusions herein based on the NTSA to be equally applicable to the DTSA claims for 

purposes of the present matter. 

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The defendants provide no support in Nebraska law for their assertion that a more 

specific description of the alleged trade secret is necessary at this early stage, especially 

given that the Court’s touchstone in considering a motion to dismiss is notice. See 

Walmart, Inc. v. Cuker Interactive, LLC, 949 F.3d 1101, 1109 (8th Cir. 2020) (concluding 

Arkansas law requires a party “clearly identify what information it considered to be a trade 

secret”). Other courts have found—under nearly identical state trade-secrets laws—that 

“[a] plaintiff need not allege the nature of the trade secrets with specificity at the pleading 

stage, but must describe them with more than conclusory statements and with sufficient 

information to infer more than a mere possibility of misconduct.” Am. Achievement Corp. 

v. Jostens, Inc., 622 F. Supp. 3d 749, 764 (D. Minn. 2022) (internal quotation omitted); see 

also LifeScience Techs., LLC v. Mercy Health, 632 F. Supp. 3d 949, 957 (E.D. Mo. 2022) 

(finding that a “trade secret may be alleged broadly” under Missouri at the pleading stage) 

(internal quotation omitted). Defendants admit “Rule 8 does not require Plaintiff to 

produce any evidence of a trade secret at this stage or to allege overly-specific details 

revealing its private information,” but then demand more of Aksarben’s complaint. 

Furthermore, the Court finds it plausible that some of the Rent Manager information 

qualifies as “trade secrets,” and defendants’ motion does little to rebut Aksarben’s 

allegations to that effect. In defendants’ own words, “Rule 8 [] require[s] [Aksarben] at 

least allege facts establishing the plausible existence of a trade secret.” Under Nebraska 

law, customer lists like those included in the Rent Manager information have been found 

to fall under the NTSA’s definition of trade secrets “where time and effort have been 

expended to identify particular customers with particular needs or characteristics,” but not 

where a list merely includes the “identities and locations of customers that anyone else 

could easily identify.” Home Pride Foods, Inc. v. Johnson, 262 Neb. 701, 782 (Neb. 2001); 

see also First Express Serv. Grp., Inc. v. Easter, 840 N.W.2d 465, 474-75 (concluding that 

an allegedly misappropriated customer list was not a trade secret where it was undisputed 

that “simple internet searches could identify [the customers] . . . and could provide their 

contact information”). The Eighth Circuit has also concluded that customer lists can

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qualify as trade secrets when they are “valuable, not because of the quantum of secret 

information, but because the expenditure of time, effort, and expense involved in its 

compilation gives a business a competitive advantage.” AvidAir Helicopter Supply, Inc. v. 

Rolls-Royce Corp., 663 F.3d 966, 972 (8th Cir. 2011).

Defendants fail to meaningfully address Aksarben’s allegations that the Rent 

Manager information—some of which Sorensen would not have known “but for his access 

and use” made possible by defendants’ alleged disclosure—was compiled using

“significant time and money,” not “available to the general public,” and “gave Aksarben a 

competitive advantage over those” without access to the information. Although the 

determination as to whether something is a trade secret is highly fact-dependent and not 

easily made on the face of pleadings, see AvidAir, 663 F.3d at 971, the present allegations 

plausibly support Aksarben’s claim that the Rent Manager information consists of trade 

secrets.

Like their other arguments, defendants’ exaggeration as to the lack of pleadings 

regarding Aksarben’s secrecy measures is also without support. Aksarben’s complaint 

alleges, in relevant part, that defendants were “required to transfer all of its electronic files 

to” Aksarben at closing, and that Kreis confirmed to Aksarben that defendants would no 

longer have access to those files after December 31, 2022. Aksarben also states it kept this 

information confidential and stored it on a separate, internal server to which others—

including Sorensen and defendants—lacked access. While perhaps thin, these allegations 

are sufficient to demonstrate the fallacy of defendants’ argument that Aksarben has alleged 

no protective measures taken to keep the Rent Manager information secret.

Whether or not such measures are sufficient is a different question. The Court finds 

defendants have not adequately refuted the sufficiency of these protections—under the 

factual circumstances of this case—to warrant dismissal. 

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Defendants cite many cases in which information was found to be a trade secret 

based on markers or proprietary legends placed on documents, confidentiality agreements 

between parties, and limited employee access to certain files—all of which seem to be, 

admittedly, absent here. See, e.g., AvidAir, 633 F.3d at 974 (“The use of proprietary 

legends on documents or the existence of confidentiality agreements are frequentlyconsidered factors in establishing or denying a trade secret claim.”). What their argument 

fails to acknowledge, however, is that a plaintiff need only plead “[r]easonable 

precautions” in light of the circumstances. See Pioneer Hi-Bred Intern. v. Holden Found. 

Seeds, Inc., 35 F.3d 1226, 1235-36 (8th Cir. 1994). Precautions that may be insufficient in 

some contexts to reasonably protect a purported trade secret may, for example, be sufficient 

in others. Compare Softchoice Corp v. MacKenzie, 636 F. Supp. 2d 927, 939-40 (D. Neb. 

2009) (finding password protection, firewalls, and locks were “nothing more than the 

ordinary precautions” and insufficient to qualify information as trade secrets where the 

evidence demonstrated that the information was not treated as a secret), with Home Pride, 

262 Neb. at 710 (finding non-password protected information to qualify as trade secrets 

where the information had “independent economic value and was kept secret”).

Given the circumstances surrounding the Agreement, the defendants have not 

shown that the precautions Aksarben has pleaded with respect to the confidentiality of the 

Rent Manager information are insufficient. “Reasonable efforts to maintain secrecy need 

not be overly extravagant, and absolute secrecy is not required.” AvidAir, 663 F.3d at 974. 

In light of the apparently tight-knit nature of the companies, Kreis’s confirmation that 

Vertical Focus no longer had access to the files, and the defendants’ agreement to the 

covenant not to compete, the Court does not believe any more extravagant precautions need 

be plead by Aksarben to survive the defendants’ motion to dismiss. 

The defendants’ final argument for dismissal pertains to whether or not Aksarben’s 

complaint adequately alleges any misappropriation of this information. In their view, 

Aksarben only alleges vaguely and in a conclusory manner that Kreis transferred the Rent 

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Manager information to Sorensen. Further, they argue Aksarben does not allege Kreis 

knew such information should be kept secret given that there are no allegations she was 

directly informed of its secrecy nor of any confidentiality requirements.

The Court again disagrees. From Aksarben’s allegations, which must be accepted

as true, Kreis disclosed the Rent Manager information despite being on notice that such 

information was improper to obtain and disclose to others under such circumstances. 

Aksarben’s factual allegations demonstrate an understanding between the parties that the 

defendants would no longer be able to access the files which, after closing, belonged solely 

to Aksarben and were kept confidential on its internal server. Even if Kreis retained access

to this information without improper copying, the Agreement’s provisions should have 

informed her that the information was “[a]cquired under circumstances giving rise to a duty 

to maintain its secrecy or limit its use” in light of the covenant not to compete. Neb. Rev. 

Stat. § 87-502(2)(b)(ii)(B); see also Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 475 

(1974) (“This necessary element of secrecy is not lost, however, if the holder of the trade 

secret reveals the trade secret to another in confidence, and under an implied obligation not 

to use or disclose it.” (internal quotation omitted)). 

Aksarben also alleges Kreis was “aware that Sorensen was planning to use the client 

lists, electronic files and the information contained in the Rent Manager database to reach 

out to Aksarben’s clients” in an effort to interfere with its business. Given the duties of 

Vertical Focus and their representatives to avoid competing with or otherwise acting to the 

detriment of Aksarben, it would reasonably be presumed that Kreis—who signed the 

Agreement on behalf of Vertical Focus—could not use nor disclose the Rent Manager 

information for certain purposes contrary to these duties.

In sum, the defendants’ oversimplified contentions that Aksarben has entirely failed 

to allege what is required of it under Nebraska and federal trade-secrets law fail to 

demonstrate that Aksarben’s claims are implausible. While the contractual provisions and 

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factual support may not ultimately support the claims made by Aksarben, dismissal is not 

proper at this time.

IT IS ORDERED:

1. The Motion to Dismiss filed by defendants Vertical Focus LLC, Wendy 

Kreis, and Ashlyne Svoboda (Filing No. 2) is granted in part and denied in 

part.

2. Plaintiff Aksarben Property Management, LLC’s claims against Ashlyne 

Svoboda (Filing No. 1) are dismissed with prejudice.

Dated this 19th day of September 2023.

BY THE COURT:

Robert F. Rossiter, Jr.

Chief United States District Judge

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