ASTOR CHOCOLATE CORPORATION v. LINDT & SPRUNGLI (USA) et al

Filing 27

OPINION filed. Signed by Judge Brian R. Martinotti on 5/31/2017. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
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:
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Plaintiff,
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v.
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:
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MATTHEW MCCALL,
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Defendant.
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____________________________________:

ASTOR CHOCOLATE CORP.,

Civil Action No. 3:16-cv-5010-BRM-TJB

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court is Defendant Matthew McCall’s (“McCall”) Motion to Change Venue
(ECF No. 10) 1 and Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF
No. 11). Plaintiff Astor Chocolate Corp. (“Astor”) opposed these motions (ECF Nos. 15, 16) and,
pursuant to Federal Rule of Civil Procedure 78(a), the Court heard oral argument on the motions
on April 25, 2017. 2 For the reasons set forth below and for good cause having been shown,
McCall’s motions are DENIED.
I. FACTUAL BACKGROUND 3

1

Lindt & Sprungli (USA) (“Lindt”), originally a defendant in this matter, filed this motion on
behalf of itself and McCall but was voluntarily dismissed from the case on or about November 28,
2016. McCall maintains the case should be transferred.
2
During oral argument, the Court reserved its decision and provided the parties until May 1, 2017,
to advise whether a settlement conference would help the parties move forward. Astor accepted
this Court’s offer while McCall declined.
3
For the purposes of the Motion to Dismiss only, and exclusive of the choice of law analysis, the
Court accepts the factual allegations in the Complaint as true and draws all inferences in the light
most favorable to Plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).

McCall was employed with Astor in New Jersey as Director of Product Development,
Package Engineer and was allegedly responsible for product development, design, production
concept, and recruitment. (Compl. (ECF No. 1-1) ¶¶ 5, 16.) McCall and Astor executed a NonDisclosure & Non-Compete Agreement (“Agreement”) on October 12, 2010, while in New Jersey.
(Id. ¶¶ 4, 6, 9, and Ex. A.) The Agreement provided McCall would not: (1) “disclose any
[confidential and proprietary information 4] to any party not related to [Astor] without [Astor]’s
prior written approval or as may be required by law”; (2) “copy, disclose, disseminate, share,
utilize, or otherwise transmit information regarding products that [Astor] manufactures, retails, or
markets, to any person, company or entity, other than those people, companies or entities, that are
required to obtain certain information in the performance of [McCall’s] job duties”; and (3)
“become employed for a period of three years after termination of [McCall’s] employment with
any company, with any business, or entity that is a competitor of [Astor] or that conducts business
in the chocolate industry in any of the geographic regions served by [Astor].” (ECF No. 1-1 at Ex.
A 1-2.)
On or about April 23, 2015, McCall resigned from Astor and thereafter became and
remains employed by Lindt in New Hampshire as a Graphic Design Manager. (ECF No. 1-1 ¶¶
16-17; McCall Aff. (ECF No. 10-3) ¶ 4.) On or about April 4, 2016, Astor, through its counsel,
sent cease and desist letters to McCall and Lindt. (ECF No. 1-1 at Exs. B, C.)

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According to the Agreement:
Confidential and proprietary information includes formulas, billing,
pricing, clients, vendors, memoranda, notes, reports,
correspondence or other documents that [McCall] review[s]. This
also includes any documents or information that [McCall] prepare[s]
on behalf of [Astor] during the course of [his] job duties. This also
includes any information relating to any client of [Astor] that
[McCall] become[s] aware of in the course of [his] job duties.
(ECF No. 1-1 at Ex. A ¶ 1(A).)
2

II. PROCEDURAL BACKGROUND
On June 17, 2016, Astor filed a complaint (“Complaint”) in New Jersey Superior Court,
Ocean County, Docket Number L-1649-16, against Lindt and McCall (collectively, “Defendants”)
alleging: (1) breach of contract against McCall; (2) breach of the covenant of good faith and fair
dealing against McCall; (3) breach of duty of loyalty against McCall; (4) tortious interference with
contract against Lindt; (5) unfair competition against Defendants; (6) unjust enrichment against
Defendants; (7) misappropriation of Astor’s confidential and proprietary information against
Defendants; (8) violation of the New Jersey Computer Related Offenses Act (“NJCROA”),
N.J.S.A. § 2A:38A-1, et seq. against McCall; and (9) conspiracy against Defendants. (See ECF
No. 1-1.) On August 16, 2016, Lindt and McCall removed the case from New Jersey Superior
Court to this Court on the basis of diversity. (Not. of Removal (ECF No. 1) ¶¶ 5-14.) Following
the filing of the pending motions, Lindt was voluntarily dismissed from the litigation. (Not. and
Order of Voluntary Dismissal (ECF Nos. 14, 22).)
III. MOTION TO CHANGE VENUE
A motion to transfer venue is governed by 28 U.S.C. § 1404(a), which states:
For the convenience of the parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any other
district or division where it might have been brought or to any
district or division to which all parties have consented.
In deciding a motion to transfer, the Court must first determine whether the alternative
forum is a proper venue. Fernandes v. Deutsche Bank Nat’l Trust Co., 157 F. Supp. 3d 383, 389
(D.N.J. 2015); see 28 U.S.C. § 1391. When a plaintiff has laid a proper venue, “[t]he decision
whether to transfer falls in the sound discretion of the trial court.” Park Inn Int’l, L.L.C. v. Mody
Enters., Inc., 105 F. Supp. 2d 370, 377 (D.N.J. 2000). However, “the burden of establishing the

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need for transfer . . . rests with the movant.” Jumara v. State Farm Ins., 55 F.3d 873, 879 (3d Cir.
1995).
The Court must consider three factors when determining whether to grant a transfer under
Section 1404(a): (1) the convenience of the parties, (2) the convenience of the witnesses, and (3)
the interests of justice. Liggett Grp., Inc. v. R.J. Reynolds Tobacco Co., 102 F. Supp. 2d 518, 526
(D.N.J. 2000) (citing 28 U.S.C. § 1404(a); Jumara, 55 F.3d at 879). These factors are not exclusive,
and must be applied through a “flexible and individualized analysis . . . made on the unique facts
presented in each case.” Id. at 527 (citations omitted). The first two factors have been refined into
a non-exhaustive list of private and public interests that courts should consider. See Jumara, 55
F.3d at 879-80.
The private interests a court should consider include:
(1) plaintiff's forum preference as manifested in the original choice;
(2) the defendant's preference; (3) whether the claim arose
elsewhere; (4) the convenience of the parties as indicated by their
relative physical and financial condition; (5) the convenience of the
witnesses-but only to the extent that the witnesses may actually be
unavailable for trial in one of the fora; and (6) the location of books
and records (similarly limited to the extent that the files could not
be produced in the alternative forum).
Danka Funding LLC v. Page, Scranton, Sprouse, Tucker & Ford, P.C., 21 F. Supp. 2d 465, 474
(D.N.J. 1998) (quoting Jumara, 55 F.3d at 879).
The public interests a court should consider include:
(1) the enforceability of the judgment; (2) practical considerations
that could make the trial easy, expeditious, or inexpensive; (3) the
relative administrative difficulty in the two fora resulting from court
congestion; (4) the local interest in deciding local controversies at
home; (5) the public policies of the fora; and (6) the familiarity of
the trial judge with the applicable state law in diversity cases.
Id. (citing Jumara, 55 F.3d at 879-80).

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Both parties analyze various private and public factors. McCall argues venue in New
Hampshire is appropriate because “1) the heart of the alleged misconduct occurred in New
Hampshire; 2) most likely witnesses and documents are located in New Hampshire; and 3) Astor
is better able to pursue this litigation in New Hampshire than McCall is to defend it in New Jersey.”
(McCall’s Reply in Further Supp. of Mot. to Change Venue (ECF No. 18) at 2.) Plaintiff argues
New Jersey is the proper venue because the private and public factors to be considered by the court
“militate strongly against transfer and demonstrate that the District of New Jersey is the proper
venue for the convenience of the parties and witnesses and in the interests of justice.” (ECF No.
16 at 3.)
A. Personal Jurisdiction
As an initial matter, this case can only be transferred “to any other district or division where
it might have been brought.” 28 U.S.C. § 1404(a). Therefore, the transferee court must have
personal jurisdiction over McCall under 28 U.S.C. § 1391. McCall concedes he has been a New
Hampshire resident since November 1, 2015 (ECF No. 10-3 ¶ 4), before the Complaint was filed
in Superior Court (ECF No. 1-1) and therefore, the New Hampshire District Court has personal
jurisdiction over him. Therefore, the case could have been originally filed in New Hampshire and
the Court may proceed with its analysis.
B. Private Factors
1. Plaintiff’s forum preference, defendant’s preference, and convenience of the
parties
The parties’ preferences and convenience in this action inherently compete. Both parties
have indicated their preference for their most convenient state – Astor by way of filing in New
Jersey and McCall by moving to transfer to New Hampshire. However, with respect to preference,
deference is given to Astor as the plaintiff. Nat’l Micrographics Sys., Inc. v. Canon U.S.A., Inc.,
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825 F. Supp. 671, 681 (D.N.J. 1993) (“[T]he plaintiff’s choice of forum is of paramount concern
in deciding a motion to transfer venue.”). Moreover, litigation is, itself, inconvenient and
“substituting one party’s inconvenience for another’s hardly appears a substantial reason for
granting this motion.” Park Inn Int’l, LLC, 105 F. Supp. 2d at 378. Therefore, this factor weighs
in favor of denying the Motion to Transfer.
2. Whether the claim arose elsewhere
McCall argues the claim arose in New Hampshire because he took the job with Lindt and
violated the terms of the Agreement in New Hampshire. Astor contends the claim arose in New
Jersey because: (1) McCall was an employee of Astor in New Jersey; (2) the Agreement, which
was a condition of his New Jersey employment, was executed and took effect in New Jersey; and
(3) McCall accessed confidential information during his employment in New Jersey. (ECF No. 16
at 4-5.) The Court does not find either argument persuasive.
Likewise, the Court is not persuaded by McCall’s argument that less deference should be
given to Astor’s choice of forum. Nat’l Micrographics Sys., Inc., 825 F. Supp. at 682 (quoting
Ricoh Co., Ltd. v. Honeywell, Inc., 817 F. Supp. 473, 480 (D.N.J. 1993)). Even assuming,
arguendo, the claim arose in New Hampshire and the Court gave less deference to Astor’s choice
of forum, the parties’ preferences would, at best, balance each other out. Therefore, at this point in
the evaluation, the Court still finds New Jersey to be the appropriate venue because McCall has
the burden to show transfer is warranted. Jumara, 55 F.3d at 879.
Accordingly, this factor weighs in favor of denying the Motion to Transfer.
3. Convenience of the witnesses
McCall argues the convenience of the parties and witnesses weighs in favor of New
Hampshire. Specifically, McCall posits: (1) Lindt (now a witness) is located in New Hampshire;

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(2) “it will be essential to understand Lindt’s operations and McCall’s relationship with the Lindt
organization including his duties and responsibilities”; and (3) “[t]hose knowledgeable about
McCall’s responsibilities at Lindt, his direct supervisors and other potential witnesses, including
McCall himself, are resident in New Hampshire.” (ECF No. 10 at 16-17.) Most notably, McCall
argues New Jersey would not have subpoena power over Lindt for trial. (ECF No. 10 at 17 and
ECF No. 18 at 5-6.)
Astor contends it does not anticipate calling witnesses from New Hampshire at trial, nor
can McCall speculate as to which witnesses Astor will require. Specifically, Astor states:
Astor anticipates that the witnesses in this matter will be limited to
Defendant McCall, Astor’s Human Resources representative (to
testify about [McCall]’s employment and the Agreement), and a
representative from Astor (to testify on damages and as to McCall’s
misappropriation of Astor’s confidential information). The
witnesses Astor can currently identify with certainty, besides
McCall, whose convenience was analyzed in the preceding factor,
are located in New Jersey.
(ECF No. 16 at 6.)
Indeed, McCall does not reference any witnesses with specificity, referring broadly to “all
key witnesses,” “[McCall’s] direct supervisors and other potential witnesses,” “witnesses who are
no longer employed by Lindt,” “Lindt employees who would speak to McCall’s job duties, Lindt’s
complete lack of interest and non-reliance on Astor business information, and McCall’s conduct
as an employee,” and “Lindt witnesses with knowledge of McCall’s alleged conduct.” (ECF No.
10-1 at 16-17 and ECF No. 18 at 5-6.) These general allegations of inconvenience to such a wide
range of unspecified witnesses are insufficient to tilt the balance in favor of transfer to New
Hampshire. See Austin v. Johns-Manville Corp., 524 F. Supp. 1166, 1169 (E.D. Pa. 1981) (citing
15 Wright, Miller & Cooper, Federal Practice & Procedure, § 3851 at 270-71 (1976)) (“The
movants here have not stated with specificity the witnesses who will be inconvenienced by a denial
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of their motions . . . .”); Stop-A-Flat Corp. v. Electra Start of Mich., Inc., 507 F. Supp. 647, 652
(E.D. Pa. 1981) (“[W]hile it may be true that most of the potential witnesses for this lawsuit reside
in that forum, the defendants have failed to identify even one of those witnesses. The simple
assertion that the necessary witnesses probably reside in a certain forum does not justify the grant
of a § 1404(a) motion.”).
Accordingly, this factor weighs in favor of denying the Motion to Transfer.
4. Location of books and records
McCall concedes “electronically available documents makes [sic] the physical location of
the documents less important in a venue analysis” (ECF No. 10 at 26) and this Court agrees. See
MaxLite, Inc. v. ATG Elecs., Inc., 2016 WL 3457220, at *16 (“Indeed, in the age of electronic
discovery, it is hard to imagine that [defendant] cannot produce relevant documentary evidence in
New Jersey, and it certainly has not claimed (much less shown) that it cannot do so.”). Therefore,
this factor weighs in favor of denying the Motion to Transfer.
B. Public Factors
1. Enforceability of the judgment
McCall argues Astor’s request for injunctive relief would be easier to enforce in New
Hampshire because the conduct is occurring there and “only the district court rendering the
judgment has to power to enforce.” (ECF No. 10-1 at 20 (citing Alderwoods Grp., Inc. v. Garcia,
682 F.3d 958, 970-71 (11th Cir. 2012)).) Astor claims this factor is neutral because “a judgment
in either forum could be enforced through appropriate procedures in the other forum.” (ECF No.
16 at 9 (citing Danka Funding, L.L.C., 21 F. Supp. 2d at 475 (“Any judgment awarded by this
Court at trial, if any, would be easily domesticated in Georgia.”)).) The Court agrees and is not

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persuaded by McCall’s argument that New Hampshire is the more appropriately venue. Therefore,
this factor weighs in favor of denying the Motion to Transfer.
2. Practical considerations
McCall contends practical considerations weigh in favor of transfer to New Hampshire
because the majority of the witnesses are located there, and transfer would make the trial easier,
more expeditious, and less expensive. (ECF No. 10 at 20.) The Court already found the private
interest factor regarding convenience of the witnesses weighs in favor of denying transfer. With
respect to the public interest factor related to practical considerations, the Court may consider
potential delays caused by witnesses needing to travel. See Carter v. U.S., No. 10-2927, 2010 WL
3322704, at *3 (E.D. Pa. Aug. 20, 2010); Colon v. Pitney Bowes Corp., No. 06-5016, 2007 WL
496875, at *4 (D.N.J. Feb. 8, 2007). At this point, McCall has not sufficiently identified witnesses
for this Court to determine whether delays would be caused by litigating the case in New Jersey.
Because McCall has the burden in this motion, the Court finds this factor weighs in favor of
denying the Motion to Transfer.
3. Relative administrative difficulty resulting from court congestion
McCall states it “will not assume that either New Jersey or New Hampshire’s docket is
more or less congested than the other.” (ECF No. 10-1 at 24.) Indeed, both states dispose of cases
at approximately the same rate. See United States Courts, Statistical Tables For The Federal
Judiciary tbl.C-5 (June 30, 2016), http://www.uscourts.gov/statistics/table/c-5/statistical-tablesfederal-judiciary/2016/06/30 (noting the median time interval for disposition of cases by trial is
29.8 months and 33.2 months in New Hampshire and New Jersey, respectively). Therefore, this
factor weighs in favor of denying the Motion to Transfer.
4. Public policy and local interest in deciding local controversies

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McCall argues the claims at issue arose in New Hampshire and therefore New Hampshire
has a local interest in deciding the case. However, the Court already concluded the private interest
factor related to this public interest factor to be neutral. Because the Agreement was executed in
New Jersey and Astor raises a New Jersey-specific claim, there is no doubt New Jersey has an
interest in the dispute. Therefore, this factor weighs in favor of denying the Motion to Transfer.
5. Familiarity of the trial judge with the applicable state law
Undoubtedly, “federal district courts are regularly called upon to interpret laws of
jurisdictions outside the states in which they sit.” Yocham v. Novartis Pharma. Corp., 565 F. Supp.
2d 554, 560 (D.N.J. 2008). To the extent McCall argues a conflict of laws exists between New
Hampshire and New Jersey, this Court is fully capable of familiarizing itself with and applying the
laws of either state. Therefore, this factor weighs in favor of denying the motion to transfer.
Taking into account the private and public interest factors, the Court finds McCall has not
met his burden in demonstrating the motion should be transferred to New Hampshire. Accordingly,
the Motion to Transfer is DENIED.
IV. MOTION TO DISMISS
A. Legal Standard
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
district court is “required to accept as true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable to the [plaintiff].” Phillips, 515 F.3d at
228. “[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.”
Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain,

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478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the
complaint are true, those “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than ‘an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
B. Choice-of-Law
Astor’s Complaint is based entirely in state law. Therefore, in order to assess the merits of
Astor’s claims, the Court must first decide whether New Jersey or New Hampshire law applies as
determined by New Jersey’s choice-of-law principles. Maniscalco v. Brother Int’l (USA) Corp.,

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709 F.3d 202, 206 (3d Cir. 2013); Spence-Parker v. Del. River & Bay Auth., 616 F. Supp. 2d 509,
523 (D.N.J. 2009).
New Jersey applies a two-part test. The first part of the choice-of-law inquiry is to
determine whether or not an actual conflict exists between the laws of the potential forums.
Maniscalco, 709 F.3d at 206 (citing Lebegern v. Forman, 471 F.3d 424, 429–30 (3d Cir. 2006);
P.V. v. Camp Jaycee, 197 N.J. 132, 141-43 (2008)). The New Jersey Supreme Court specified the
first step is evaluated “by examining the substance of the potentially applicable laws to determine
whether ‘there is distinction’ between them . . . . If not, there is no choice-of-law issue to be
resolved.” Camp Jaycee, 197 N.J. at 143 (quoting Lebegern, 471 F.3d at 430). If a conflict exists,
the Court proceeds to the second part of the test and “determine[s] which jurisdiction has the ‘most
significant relationship’ to the claim.” Maniscalco, 709 F.3d at 207 (quoting Camp Jaycee, 197
N.J. at 144). In other words, “the Court determines ‘which state has the most meaningful
connections with and interests in the transaction and the parties.’” Spence-Parker, 616 F. Supp. 2d
at 523 (quoting NL Indus., Inc. v. Commercial Union Ins. Co., 65 F.3d 314, 319 (3d Cir. 1995)).
McCall’s argument in support of dismissal is two-fold. First, McCall presupposes a conflict
exists and argues New Hampshire has the most significant relationship with the overall case 5
because “1) New Hampshire is where the alleged conduct occurred; 2) New Hampshire is the locus
of the alleged relationship between Lindt and McCall; and 3) New Hampshire is the location of
both Defendants[ 6].” (McCall’s Br. in Supp. of Dismissal (ECF No. 11-1) at 8.) Second,
“[r]egardless of the applicable law, Astor’s Complaint fails for failure to state a claim upon which
relief can be granted and must be dismissed.” (Id.)

5

McCall did not conduct a claim-by-claim analysis of each state’s laws.
McCall is the only remaining defendant. McCall’s Motion to Dismiss was filed prior to Lindt’s
dismissal.
6

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Astor argues a choice-of-law determination is improper at this early juncture in the
litigation and, even so, McCall “utterly fails to consider whether there is a conflict between New
Jersey and New Hampshire law as to each claim, which is the first and necessary step in the conflict
analysis. As such, his request for application of New Hampshire law fails as a matter of law.” (ECF
No. 15 at 4.) Additionally, Astor argues New Jersey law applies to each claim and that each claim
is adequately pled.
As required, the Court will review the sufficiency of the allegation in each of Astor’s claims
and, where possible, determine which state’s law applies.
C. Plaintiff’s Claims
1. Count One – Breach of Contract
McCall effectively concedes no conflict exists between New Jersey and New Hampshire
law (see ECF No. 11-1 at 8 (citing the same four elements required to bring a claim in either state)),
therefore, no choice-of-law analysis is required and New Jersey law applies. Camp Jaycee, 197
N.J. at 143 (quoting Lebegern, 471 F.3d at 430).
“A party alleging a breach of contract satisfies its pleading requirement if it alleges (1) a
contract; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that the party
performed its own contractual duties.” Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 210
F. Supp. 2d 552, 561 (D.N.J. 2002) (citations omitted).
McCall claims Astor failed to plead a breach of the Agreement because the Complaint does
not specify what confidential information was disclosed. He also argues damages are not
sufficiently alleged. The Court disagrees. “Confidential informational” is defined in the Agreement
and damages are, at minimum, $75,000, which McCall conceded by removing the case to federal
court. Even so, general damages need not be specifically stated. Fed. R. Civ. P. 8(a); Tiburon

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Lockers v. Fletcher, Civ. A. No. 15-6970, 2016 WL 4487852 at *15 (D.N.J. Aug. 24, 2016)
(quoting Delzotti v. Morris, Civ. A. No. 14-7223, 2015 WL 5306215 at *8 (D.N.J. Sept, 10, 2015)).
For these reasons, McCall’s Motion to Dismiss Count One is DENIED.
2. Count Two – Breach of Covenant of Good Faith and Fair Dealing
McCall cites to both New Hampshire and New Jersey law for the proposition that this cause
of action does not exist where the parties have an express and clear contract, again, in effect,
conceding no conflict of law exists. (See ECF No. 11-1 at 10 (citing Wilcox Indus. Corp. v. Hansen,
870 F. Supp. 2d 296, 312 (D.N.H. 2012); Fields v. Thompson Printing Co., Inc., 363 F.3d 259,
271–72 (3d Cir. 2004).) Accordingly, no choice-of-law analysis is required and New Jersey law
applies.
Under New Jersey law, all contracts have an implied covenant of good faith and fair
dealing, which prohibits either party from doing “anything which will have the effect of destroying
or injuring the right of the other party to receive the fruits of the contract.” Fields v. Thompson
Printing Co., 363 F.3d 259, 270 (3d Cir. 2004) (citations omitted); see Brunswick Hills Racquet
Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 224–25 (2005); R.J. Gaydos Ins.
Agency, Inc. v. National Consumer Ins. Co., 168 N.J. 255, 276 (2001). “A plaintiff may be entitled
to relief under the covenant [of good faith and fair dealing] if its reasonable expectations are
destroyed when a defendant acts with ill motives and without any legitimate purpose.” DiCarlo v.
St. Mary Hosp., 530 F.3d 255, 267 (3d Cir. 2008) (quoting Brunswick Hill Racquet Club, Inc. v.
Route 18 Shopping Ctr. Assocs., 1182 N.J. 210, 226 (2005)); Graco, Inc. v. PMC Global, Inc.,
Civ. A. No. 08-1304, 2009 WL 904010 (D.N.J. 2009) (“A defendant who acts with improper
purpose or ill motive may be found liable for breaching the implied covenant if the breach upsets
the plaintiff’s reasonable expectations under the agreement.”).

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Astor contends it sufficiently pled this cause of action by asserting the following in its
opposition:
(a) McCall is bound by a non-compete agreement; (b) that
[A]greement prohibited him from working for a direct competitor
for three years; (c) that agreement prohibited him from
misappropriating Astor’s confidential information; (d) McCall left
Astor and began working for a direct competitor within the three
year period; (e) McCall misappropriated Astor [sic] confidential
information.
(ECF No. 15 at 8 (citing ECF No. 1-1 ¶¶ 9-22, 60-61).)
In pleading McCall misappropriated confidential information and shared it with Lindt in
violation of the Agreement, Astor adequately asserts McCall acted with ill motives to the detriment
of Astor’s reasonable expectations. (See ECF No. 1-1 ¶¶ 20-22.) For these reasons, McCall’s
Motion to Dismiss Count Two is DENIED.
3. Count Three – Breach of Duty of Loyalty
McCall contends that, because New Hampshire law applies, this cause of action is barred
because it is not recognized by New Hampshire common law or the New Hampshire Uniform
Trade Secret Act (“NHUTSA”). (ECF No. 11-1 at 12 (citing White v. Ransmeier & Spellman, 950
F. Supp. 39, 43 (D.N.H. 1996); Wilcox Indus. Corp., 870 F. Supp. 2d at 303).) Even under New
Jersey law, McCall argues the cause of action does not survive because “[a]n employee owes a
duty of loyalty to his employer only during the period of his employment.” (Id. at 13 (citing VibraTech Eng’rs, Inc. v. Kavalek, 849 F. Supp. 2d 462, 489 (D.N.J. 2012)).)
Because a conflict exists in the applicable laws of the potential forums, a choice-of-law
analysis is necessary, and the Court must proceed to the second part of the test to “determine which
jurisdiction has the ‘most significant relationship’ to the claim.” Maniscalco, 709 F.3d at 207
(quoting Camp Jaycee, 197 N.J. at 144).

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Unsurprisingly, Astor argues New Jersey has the most significant relationship to the claim
because: (1) Astor is located, is incorporated, and has its place of business in New Jersey; (2) the
injury occurred in New Jersey (“McCall misappropriated Astor’s confidential information in New
Jersey”); and (3) “McCall was a New Jersey resident when he was employed by Astor and his duty
of loyalty to Astor existed.” (ECF No. 15 at 9.)
McCall does not specifically argue this portion of the choice-of-law analysis. Instead, in
arguing the claim would fail under New Jersey law, McCall states:
The only misconduct alleged by [Astor] while McCall was still
employed with [Astor] is that he sent [Astor]’s ‘confidential
information’ to another one of his own email addresses. . . . Any
misconduct in which [Astor] has alleged McCall engaged after his
employment with Plaintiff cannot constitute a breach of loyalty as a
matter of law.
(ECF No. 11-1 at 14.)
The parties’ arguments make clear that any determination as to which forum has the most
substantial relationship with this claim would be premature. Based on the purported differences in
the states’ laws, the Court would be required to evaluate the specific alleged breaches to determine
when and where they occurred. This evaluation is not possible on the present record, which alleges
that confidential information was shared and/or misappropriated both during McCall’s
employment with Astor and after. (ECF No. 1-1 ¶¶ 12, 22.) Discovery is warranted on this issue
and McCall may move for summary judgment as to this choice-of-law question with evidence
sufficient for the Court’s determination as to whether New Jersey or New Hampshire law governs
this claim. See Snyder v. Farnam Companies, Inc., 792 F. Supp. 2d 712, 718 (D.N.J. 2011) (noting
that, absent a full factual record, “it can be inappropriate or impossible for a court to conduct that
analysis at the motion to dismiss stage when little or no discovery has taken place” (quoting In re

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Samsung DLP Television Class Action Litig., Civ. No. 07–2141, 2009 WL 3584352, at *3 (D.N.J.
Oct. 27, 2009))). For these reasons, McCall’s Motion to Dismiss Count Three is DENIED.
4. Count Four – Tortious Interference with McCall’s Contract Against Lindt
Although not raised by McCall’s motion, the Court notes, by virtue of Lindt’s dismissal,
this Count has been dismissed from the Complaint.
5. Count Five – Unfair Competition
McCall, by joining and incorporating Lindt’s argument on this point into its own motion,
argues that, like the duty of loyalty (Count Three), this Count is preempted in New Hampshire by
the NHUTSA, whereas the claim exists in New Jersey. (Lindt Mot. to Dismiss (ECF No. 9-1) at
18-20.) Because a conflict exists, a choice-of-law analysis is necessary, and the Court must proceed
to the second part of the test to “determine which jurisdiction has the ‘most significant relationship’
to the claim.” Maniscalco, 709 F.3d at 207 (quoting Camp Jaycee, 197 N.J. at 144).
McCall, through Lindt’s motion, argues New Hampshire has the most significant
relationship to this claim because: (1) it is where the alleged interference took place, and (2) the
alleged competition, which forms the basis of the cause of action, is in New Hampshire. (ECF No.
9-1 at 20.) Astor argues New Jersey has the most significant relationship to the claim because:
[1] Astor’s injury occurred in New Jersey. [2] Astor is incorporated
in New Jersey and McCall was a resident of New Jersey when he
misappropriated Astor’s confidential information. [3] McCall
worked for Astor in New Jersey, making the New Jersey the center
of their relationship. [4] Finally, McCall misappropriated the
confidential information, leading to the unfair competition in New
Jersey. Whether he sent that information to Lindt while still in New
Jersey or once he moved to New Hampshire is a factual issue that
will need to be explored in the discovery.
(ECF No. 15 at 11.)

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The Court agrees with Astor that factual issues exist. Accordingly, the record is insufficient
for this Court to make a choice-of-law determination at this time. The parties may move for
summary judgment as to choice-of-law at a later date with evidence sufficient for the Court to
determine whether New Jersey or New Hampshire law governs this claim. See Snyder, 792 F.
Supp. 2d at 718 (quoting In re Samsung DLP Television Class Action Litig., 2009 WL 3584352,
at *3). For these reasons, McCall’s Motion to Dismiss Count Five is DENIED.
6. Count Six – Unjust Enrichment
Several courts in this district have held, and Astor argues, no actual, material conflict exists
among the laws of different states with respect to unjust enrichment. Snyder, 792 F. Supp. 2d at
723 (citing In re Mercedes–Benz Tele Aid Contract Litig., 257 F.R.D. 46, 58 (D.N.J. 2009);
Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 464 (D.N.J. 2009)). McCall, through Lindt,
argues Astor’s claim, as applied to the facts and pleadings of this case, brings the claim within the
NHUTSA which preempts it, creating a conflict in the forums’ laws. (ECF No. 9-1 at 22-23.)
Specifically, McCall argues the claim is preempted “[i]n the absence of an allegation of unjust
enrichment independent of misappropriation.” Id. (citing Wilcox, 870 F. Supp. 2d at 308.)
McCall’s argument is misplaced, because Astor does, in fact, assert a separate cause of
action for misappropriation in Count Seven. Accordingly, no substantive conflict exists between
the forums’ laws, see Snyder, 792 F. Supp. 2d at 723, and therefore, New Jersey law applies to this
claim.
To state a claim for unjust enrichment in New Jersey, “a plaintiff must allege that (1) at
plaintiff’s expense (2) defendant received benefit [sic] (3) under circumstances that would make
it unjust for defendant to retain benefit [sic] without paying for it.” Id. at 723-24 (quoting In re

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Ford Motor Co. E–350 Van Prods. Liab. Litig., Civ. No. 03–4558, 2008 WL 4126264, at *21,
(D.N.J. Sept. 3, 2008)).
Astor alleges McCall was unjustly enriched at Astor’s expense as set forth in the allegations
throughout the Complaint, which include allegations that McCall had access to Astor’s
confidential and proprietary information, accessed it and sent it to his personal email during his
employment, “misappropriated this confidential information by use of his Astor email address
and/or by use of an Astor computer,” and “provided such confidential information to Lindt.” (ECF
No. 1-1 ¶¶ 20-22, 53.) Reading these allegations in a light most favorable to Astor, the Court finds
Astor sufficiently described circumstances that would, if proven, make it unjust for McCall to
retain the benefit of using the confidential information without paying for it. Accordingly, for these
reasons, McCall’s Motion to Dismiss Count Six is DENIED.
7. Count Seven – Misappropriation of Astor’s Confidential Information
McCall, through Lindt, argues this cause of action is again preempted by the NHUTSA,
creating a conflict between the states’ laws. Having already found the record to be insufficient with
respect to where and when the confidential information was allegedly disclosed, the Court is
unable to determine which state has the most significant relationship with the claim based on the
current record. See Torsiello v. Strobeck, 955 F. Supp. 2d 300, 314 (D.N.J. 2013) (“The key to
determining the misuse of the information is the relationship of the parties at the time of disclosure,
and its intended use.” (quoting Platinum Mgmt., Inc. v. Dahms, 285 N.J. Super. 274, 295 (Law
Div. 1995))). Therefore, the Court cannot make a choice-of-law determination at this time. The
parties may move for summary judgment as to choice-of-law at a later date with evidence sufficient
for the Court to determine whether New Jersey or New Hampshire law governs. See Snyder, 792

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F. Supp. 2d at 718 (quoting In re Samsung DLP Television Class Action Litig., 2009 WL 3584352,
at *3). For these reasons, McCall’s Motion to Dismiss Count Seven is DENIED.
8. Count Eight – Violation of the NJCROA
Astor argues New Jersey law applies to this New Jersey cause of action because “[n]o
actual conflict exists between New Jersey law and New Hampshire law, as New Hampshire has
no statute or cause of action equivalent to the [NJCROA].” (ECF No. 15 at 19.) McCall seems to
argue, in passing, that Astor cannot bring a claim under the NJCROA because New Hampshire
law applies to all of Astor’s claims. (ECF No. 11-1 at 15 (“[T]he NJCROA is a New Jersey statute,
and as discussed above, Plaintiff’s claims against McCall are governed by the laws of New
Hampshire.”).)
New Jersey law applies to this cause of action, and the Court need not enter into a choiceof-law analysis because no New Hampshire law exists with which to compare the NJCROA. See
Camp Jaycee, 197 N.J. at 143 (quoting Lebegern, 471 F.3d at 430). The NJCROA provides a cause
of action against a person for
a. The purposeful or knowing, and unauthorized altering, damaging,
taking or destruction of any data, data base, computer program,
computer software or computer equipment existing internally or
externally to a computer, computer system or computer network;
b. The purposeful or knowing, and unauthorized altering, damaging,
taking or destroying of a computer, computer system or computer
network;
c. The purposeful or knowing, and unauthorized accessing or
attempt to access any computer, computer system or computer
network;
d. The purposeful or knowing, and unauthorized altering, accessing,
tampering with, obtaining, intercepting, damaging or destroying of
a financial instrument; or
e. The purposeful or knowing accessing and reckless altering,
damaging, destroying or obtaining of any data, data base, computer,
computer program, computer software, computer equipment,
computer system or computer network.

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N.J.S.A. § 2A:38A-3.
Astor alleges facts sufficient to support a NJCROA claim. Specifically, it alleges McCall
accessed Astor’s computer and took, “without authorization” and in a “reckless[]” manner,
“Astor’s branding, product listings, product costs, pricing lists, profit margins, and other data” and
distributed the information to Lindt. (ECF No. 1-1 ¶¶ 20-22, 60-61.) At minimum, Astor sets forth
a cause of action under N.J.S.A. § 2A:38-3(e). Accordingly, for these reasons, McCall’s Motion
to Dismiss Count Eight is DENIED.
9. Count Nine – Conspiracy
Astor voluntarily dismissed Count Nine (ECF No. 15 at 6 and ECF No. 22), therefore,
McCall’s Motion to Dismiss this Count is DENIED AS MOOT.
IV. CONCLUSION
For the reasons set forth above, McCall’s Motion to Change Venue is DENIED. McCall’s
Motion to Dismiss is DENIED as to Counts One, Two, Six, and Eight after a finding that New
Jersey law applies to these causes of action; DENIED as to Counts Three, Five, and Seven without
a determination as to choice-of-law; and DENIED AS MOOT as to Count Nine. An appropriate
order will follow.
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

Dated: May 31, 2017

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