DIVERSANT, LLC v. CARINO
Filing
18
MEMORANDUM OPINION filed. Signed by Judge Anne E. Thompson on 4/2/2018. (km)
REC.EI VE D
NOT FOR PUBLICATION
APR 02 2018
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AT8:30
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WILLIAM T. WAI.SH M
CLEAK
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DIVERSANT, LLC,
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Plaintiff,
v.
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Civ. No. 18-3155
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I MEMORANDUM OPINION
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MITCHELLE CARINO,
Defendant.
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THOMPSON, U.S.D.J.
BACKGROUND
This is an action for breach of contract arising out of an employment and corporate
competition matter. Plaintiffs allegations are summarized as follows. Plaintiff Diversant, LLC
("Plaintiff' or "Diversant") is a New Jersey limited liability company with its corporate
headquarters and principal place of business in Red Bank, NJ. (Compl. ')[ 1, ECF No. 1.) It is the
largest African-American-owned IT staffing solutions firms in the United States (id.), and it
provides IT staffing services to mid-market and Fortune 500 companies nationwide (id.')[ 5).
Defendant Mitchelle Carino ("Defendant") is a resident of Brisbane, CA and is currently
employed by Artech Information Systems, LLC ("Artech") in its San Francisco, CA office. (Id.
')[ 2.) Until he resigned on January 3, 2018, Defendant was employed by Plaintiff as a Business
Development Director in Diversant' s San Francisco office. (Id. ')[ 16.) In this role, Defendant had
access to confidential information about numerous clients and consultants. (Id. <][ 19.)
In July 2015, Plaintiff acquired Vircon, a competing IT staffing firm. (Id.')[ 7.) At the
time of this acquisition, Defendant executed an agreement containing various post-employment
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restrictive covenants. (Id.«][ 23.) The agreement prohibited Defendant from using or disclosing
confidential business information or trade secrets (id.«][ 24); included non,..compete clauses
prohibiting Defendant from working for any competitor individual or entity providing IT staffing.
services similar to those he provided for Diversant within 50 miles of his Diversant territory (id.
Cf][ 25-26); and included non-solicitation clauses prohibiting Defendant from hiring, soliciting, or
attempting to hire or solicit Diversant employees, consultants, clients, or prospective clients (id.
«][ 27). 1 The agreement further provided that Defendant would have to provide written notice to
Diversant of new employment should he leave Diversant. (Id. «][ 32.)
Relevant to the issue before the Court, the agreement included a choice of law provision,
noting that it "shall be governed by the Federal Arbitration Act ('FAA') and, to the extent not in
conflict with the FAA, the laws of the State of New Jersey, without regard to its conflict of laws
provisions." (Id.«][ 34.) The agreement requires that claims for damages be submitted to
arbitration, but either party may seek injunctive relief in court. (Id.«][ 35.)
On January 3, 2018, Defendant resigned from Diversant, saying he was unhappy with
Diversant's executive management team but not disclosing any new employment. (Id. 1139-41.)
Shortly after his resignation, he began employment with Artech as a Senior Business
Development Director in its San Francisco office. (Id.<][ 43.) He did not inform Diversant of this
new employment; rather, a Diversant consultant informed Plaintiff that he had observed
Defendant visiting managers of a Diversant client. (Id.«][ 46.) Artech's San Francisco office is
within 50 miles of Diversant' s San Francisco office and Defendant's territory at Diversant, and
Artech is a direct IT staffing competitor. (Id. Cf][ 47-48.) Plaintiff alleges, on information and
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Defendant was also subject to Diversant' s Employee Handbook, which is largely duplicative of
the restrictive covenants codified in the agreement itself. (See Compl. <][<][ 36-38.)
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belief, that Defendant may and possibly already has used Plaintiffs confidential information to
solicit Diversant's client business for the benefit of its competitor Artech. (Id.
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