Alliantgroup, L.P. v. Mols
MEMORANDUM OPINION AND ORDER granting 3 MOTION to Dismiss as to plaintiff's claim for tortious interference, which is hereby dismissed with prejudice, but otherwise denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIV ISION
January 30, 2017
David J. Bradley, Clerk
BRAD MOLS ,
CIVIL ACTION NO . H-16-3114
MEMORANDUM OPINION AND ORDIR
Plaintiff, AlliantGroup , L .P ., filed this action on June
2016, in the 295th Judicial District Court of Harris County , Texas,
asserting claim s for breach
contract, misappropriation and
wrongful use of trade secrets, and for temporary injunctionx
September 21, 2016, plaintiff filed a First Am ended Petition in the
State Court action .z On October 20, 2016, defendant filed a Notice
entered an Order
Amend Notice of Removal to Allege
Establishing Subject Matter Jurisdiction (
Docket Entry No. 10), and
2017, defendant filed an Amended Notice
Docket Entry No.
that alleges facts sufficient to establish
that there is complete diversity of the parties and the amount
controversy exceeds $75,000.
Injunction and Request for Disclosures, Exhibit l to Notice of
Removal, Docket Entry No . 1-1 .
zplaintiff's First Amended Petition , Application for Temporary
Injunction and Request for Disclosures CA
First Amended Petition'),
Exhibit 5 to Notice of Removal, Docket Entry No . 1-5 .
Docket Entry No.
in which defendant asks the court
Plaintiff's First Amended Complaint
personal jurisdiction and/or failure
relief may be granted .
claim for which
2016, plaintiff filed
Plaintiff's Second Am ended Complaint, Application for Temporary
Injunction, and Request
and Plaintiff AlliantGroup 's Opposition to Defendant Brad
Permanent Injunction (
nplaintiff's Opposition,' Docket Entry
A lthough the pending motion to dism iss seeks dismissal of
Plaintiff's First Amended Complaint , and plaintiff has since filed
jurisdiction raised by the motion to dismiss remains outstanding,
dism iss moot
requiring defendant to file a second motion to dismiss, the court
has analyzed the arguments made in the pending motion to dismiss in
the claim s asserted
the Plaintiff's Second Amended
Complaint, and for the reasons stated below, concludes that the
dismiss for lack
personal jurisdiction should be
denied because the defendant has consented to personal jurisdiction
in this forum, and that the motion to dismiss for failure to state
a claim should be granted as to plaintiff's claim for tortious
interference but otherwise den ied .
Plaintiff is a tax consulting firm with its primary office
citizen of California .
alleges that it employed defendant as a Regional Managing Director
September 17, 2007, and by plaintiff's Senior Managing Director,
Sonny Grover, on September 18, 2007 .3 In the Employment Agreement,
defendant agreed to provide Research and Development Tax consulting
services to various clients and prospects of plaintiff in exchange
salary and commission .4
The Agreement contained an express
choice-of-law and forum-selection clause , stating :
Choice of Law/lurisdiction/venue: This Agreement shall be
governed in all respects, including, but not lim ited to,
validity, interpretation , effect and performance by the
laws of the State of Texas .
The parties agree that
proper subject matter and personal jurisdiction shall be
had solely in the State of Texas. The sole venue for
disputes arising hereunder shall be in Harris County,
Texa s .s
3First Amended Petition, p . 4, Docket Entry No . 1-5, p . 5,
Employment Agreement, Exhib it A thereto, p . 11, Docket Entry No . 16, p . 12 .
See also Plaintiff's Second Amended Complaint,
Application for Temporary Injunction and Request for Permanent
nsecond Amended Complaint'), Docket Entry No. 7, p . 4
and Employment Agreement, Exhibit A thereto, Docket Entry No . 7-1,
p . 1O. See also Employment Agreement , Exhibit 1-A to Plaintiff
A lliantgroup's Opposition to Defendant Brad Mol's Motion to
Dismiss, Docket Entry No . 8-2, p . 12 .
Employment Agreement, Exhibit IA to Plaintiff Alliantgroup's
Opposition to Defendant Brad Mol's Motion to Dismiss, Docket Entry
No . 8-2, pp . 1-4 Articles IV and V .
5Id . at Article IX .E .
nonsolicitation, and nondisclosure covenantsx
Plaintiff alleges that on
resigned from his position and immediately, in violation of the
Employment Agreement , began directly competing with plaintiff by
soliciting clients and/or CPA contacts that he
while employed by plaintiff, and by
and proprietary information and trade secrets for his own gainx
In this action, plaintiff alleges that defendant has been working
on behalf of his own new business and has solicited at least three
Oxnard, California ;
noncompetition, nonsolicitation , and nondisclosure provisions
the Employment Agreem ent, misappropriation and wrongful use
trade secrets in violation of Texas Civil Practices & Remedies Code
5 134A .O01-0O2, breach of confidential relationship , and tortious
interference, as well as violations of the Computer Fraud and Abuse
Act, 18 U.
S.C. 5 1030 (
6Id ., pp . 6-9, Article V II.
Riirst M ended Petition , p . 4 , Docket Entry No . 1-5, p . 6
%% 13-14; Second M ended Complaint , Docket Entry No . 7 , p . 7 % 15 .
8second M ended Complaint , Docket Entry No .
9 . at pp . 8-14 (; 2 0-4 0 .
% 18 .
II . Motion to Dism iss for Lack of Personal Jurisdiction
Defendant argues that personal jurisdiction
The forum-selection clause is unenforceable because
it would be unreasonable and unjust to enforce it,
because enforcement would offend the strong public
policy of California, and because litigation in
Texas would be seriously inconvenient to the
parties and witnesses because Defendant and al1
conceivable witnesses are in California and the
Plaintiff's tort claims fallg) outside the scope of
the forum -selection clause, which applies only to
claims uarising H under' the employment agreement.
Texas and because
asserted causes of action do not arise out of or
result from Defendant's forum-related contacts .
The exercise of personal jurisdiction in Texas over
Defendant, a California resident who did none of
his work for Plaintiff in Texas, does not comport
w ith traditional notions of
fair p lay and
substantial justice xo
enforceable, the claim s alleged all fall within the scope of that
Plaintiff also argues that
this forum ,
conduct that the
that exercising personal
offend traditional notions
fair play and
substantial justice. l
pp . 7-8.
Docket Entry No .
plaintiff 's Opposition, pp . 5-17 , Docket Entry No . 8 r pp . 105
Standard of Review
Federal Rule of Civil Procedure l2 (
2). When a foreign defendant
for lack of personal jurisdiction
Rule 12( 2), nthe plaintiff '
bears the burden of establishing the
district court's jurisdiction over the defendant.r'
Technolocies, Inc. v. Sace Grour PLC, 313 F.3d 338, 343 (
2002), cert. denied,
quoting Mink v . AkAA
Development LLC , l9O F.
3d 333, 335 (
district court rules
motion to dism iss
lack of personal
without an evidentiary hearing, the plaintiff may
bear his burden by presenting
p rima facie case that personal
jurisdiction is proper.f' Id. (
quoting Wilson v . Belin, 20 F.3d
Cir.), cert. denied, l15
determination , the district court may consider the
contents of the record before the court at the time of the motion ,
Id. at 344 (
quoting Thomrson v. Chrysler Motors
Corp., 755 F.2d 1162, 1165 (
5th Cir. 1985)). The court must accept
as true the uncontroverted allegations in the plaintiff's complaint
and must resolve in favor of the plaintiff any factual conflicts .
H t- .
Guidrv v . United States Tobacco Co.,
However, the court
Panda Brandvwine Corr . v .
Potomac Electric Power Co., 253 F.
3d 865, 869 (
5th Cir. 2001).
uAb sent any dispute as
the relevant facts, the issue of whether
personal jurisdiction may be exercised over a nonresident defendant
by th g Clourt.'
Ruston Gas Turbines, Inc . v . Donaldson Co ., Inc .,
F.3d 415, 418
'A federal district court sitting
diversity may exercise
personal jurisdiction only to the extent permitted a state court
under applicable state law .' A llred v . Moore & Peterson,
1997), cert. denied,
Moreover, a federal court may only exercise personal jurisdiction
jurisdiction comports with the Due Process Clause of the Fourteenth
Amendment. Id . Thus, the court may exercise personal jurisdiction
nonresident defendant like Mols
the forum state's
long-arm statute confers personal jurisdiction over that defendant;
the exercise of personal jurisdiction comports with the Due
Process Clause of the Fourteenth Amendment .'
F.3d 753, 759
McFadin v . Gerber,
2009), cert. denied,
Since the Texas long-arm statute extends as far as
constitutional due process allow s, the court considers only the
second step of the inquiry .
Due process is satisfied if the unonresident defendant has
certain minimum contacts with (
the forum) such that the maintenance
substantial justice.r' Gardemal v. Westin Hotel Co., 186 F.3d 588,
quoting International Shoe Co. v. State of
Washincton , Office of Unemolovment Comrensation and Placement,
quoting Milliken v. Mever,
1940)). nThe A
minimum contacts' inquiry is fact intensive and
no one element is decisive ; rather the touchstone
defendant's conduct shows that
Areasonably anticipates being
haled into court .r'
satisfies the due process requirem ent,
presumption arises that
jurisdiction is reasonable, and the burden of proof and persuasion
defendant opposing jurisdiction
compelling case that the presence
some other considerations
would render jurisdiction unreasonable.'
Rudzewicz, 105 S.
Buraer Kina Corp . v.
2174, 2185 (
uThere are two types of '
those that give
rise to specific personal jurisdiction and those that give rise
general personal jurisdiction.' Lewis v. Fresne, 252 F.3d
See also Panda Brandvwine,
F.3d at 867-68
recognizing that a district court may assert either general
specific personal jurisdiction over a party). This case involves
specific jurisdiction . A court may exercise specific jurisdiction
when the nonresident defendant's contacts with
arise from ,
are directly related
Gundle Linina Construction Corr . v . Adams Countv Asphalt , Inc w
F.3d 201, 205 (
5th Cir. 1996) (
citing Helicorteros Nacionales de
Colombia, S . . v. Hall,
Quick Technoloqies, Inc . v . Saqe Grour PLC , 313 F .3d
2002)). To determine whether specific jurisdiction exists,
court must nexam ine the relationship among the defendant, the
forum, and the litigation to determ ine whether maintaining the suit
offends traditional notions of fair play and substantial justice.'
Gundle Lininl, 85 F.3d at 205 .
Even a single contact can support
specific jurisdiction if the defendant npurposefully avails itself
of the privilege of conducting activities within the forum State ,
thus invoking the benefits and protections of its laws .'
such that the defendant
anticipate being haled into court'
the forum state .' Ruston Gas
Turbines, Inc. v. Donaldson Co., Incw
F.3d 415, 419 (
citing World-Wide Volkswaqen Corp . v. Woodson,
diversity case, when the out-of-state defendant has
specific venue and
consenting to personal jurisdiction in that venue, federal law
applies to determine whether the clause is enforceable . Havnsworth
v. The Corporation,
5th Cir. 1997), cert . denied
sub nom. Havnsworth v . Llovd's of London, 118
forum -selection provision
Under federal law,
p rima facie valid and enforceable unless the opposing
party shows that
enforcement would be unreasonable .'
Services, Inc. v . Lexinlton State Bank, 46 F.3d
per curiam ). See also Calix-chacon v . Global International
Marine, Incw 493 F.3d 507,
5th Cir. 2007) (
ustrong presumption in favor of enforcement of forum
selection clauses/ (
') citing Stewart Oraanization, Inc. v. Ricoh
2239, 2246 (
valid forum-selection clause is given controlling weight in al1 but
the most exceptional cases'
In Kevlin , 46 F .3d
Fifth Circuit enforced a
forum-selection clause and reversed the district court 's dismissal
administer benefit services to the bank's custom ers .
Id . at 14 .
The contract provided that Texas law applied and that a1l disputes
Dallas County, Texas .
plaintiff filed suit in Dallas County , the bank removed the case
jurisdiction. Id. The district court dismissed the case, finding
that the forum-selection clause was ambiguous and that plaintiff
had otherwise failed to establish the bank had minimum contacts
with Texas. Id . The Fifth Circuit reversed, finding that the only
reasonable interpretation of the contract was that proper venue was
only in Dallas County, Texas .
Id . at
The court held that
the bankq has failed to sufficiently prove
that the enforcement of the choice of forum provision
would be unreasonable due to fraud or overreaching , we
find that the choice of forum provision validly contracts
for venue in Dallas County , Texas, thereby granting the
district court jurisdiction over E
Federal district courts
Texas have followed Kevlin and
denied motions to dismiss for lack
personal jurisdiction when
the defendant signed a contract containing a forum selection clause
designating Texas .
See , e .a ., Alliantgroup , L .P . v . Feinaold ,
Civil Action No. H-09-0479, 2009 WL 1109093, *6-*9 ( D. Tex. April
The Parties' Forum Selection Clause is Enforceab le
Plaintiff argues that the Employment Agreement that defendant
signed contained a valid forum selection clause designating Harris
County, Texas, as a mandatory forum
resolving disputes arising
under the contract; choosing Texas law ; and consenting to personal
jurisdiction solely in the State of Texasx z
l2Id . at
Docket Entry No . 8,
A forum selection clause may be mandatory
perm issive .
language clearly demonstrates
Orleans v . Municipal Administrative Services, Inc w
5th Cir. 2004), cert. denied, 125 S.
Citv of New
376 F.3d 501,
the agreement contains clear language showing that lurisdiction is
appropriate only in a designated forum , the clause is mandatory .'
Von Graffenreid v . Craig ,
( .D. Tex. 2003)
By contrast , courts have held forum-selection provisions perm issive
( party's consent to jurisdiction in one forum does
not necessarily waive its right
forum selection clause
See, e .? ., Municipal Administrative Services,
have an action heard in another .
must go beyond
particular forum will have jurisdiction
The clause in the Employment Agreement at issue in this action
states that npersonal jurisdiction shall
of Texasr/l and the parties agreed that Harris County, Texas would
be the 'sole venue' for resolving disputes Marising hereunder .' l
HEmployment Agreement, Exhibit 1-A to Plaintiff's Opposition,
Docket Entry No. 8-2, Art. IX, % F) (
1 Id .
The words nsole' and nsolely' are a simple but clear limitation
that not only permits but requires Harris County, Texas,
this dispute .
mandatory and enforceable unless the defendant shows that
See Kevlin ,
selection clause was mandatory that stated ' tqhe legal venue of
this contract and any disputes arising from it shall be settled
Dallas, County, Texas').
See also Havnsworth, 121 F.3d
'The presumption of enforceability may be overcome, however, by a
Defendant argues that enforcing the forum-
selection clause would be unreasonable under the circum stances
because the contract was signed in California and performed outside
Texas, and because
conceivable witnesses are located
California or the surrounding states .
In light of the strong presumption
forum-selection clauses, the Fifth Circuit has lim ited the scope of
the term uunreasonable' for purposes of setting aside a forum
selection clause . See Havnesworth, 121 F.3d at 963; Calix-chacon,
F .3d at 514 .
To be unreasonable, the forum-selection clause
must have been the product of fraud or overreaching, or enforcement
would either deprive the plaintiff of her day in court or a remedy
9637 Calix-chacon ,
F .3d at
Defendant has not met his sub stantial burden of rebutting the
presumptive validity of the mandatory forum-selection
Defendant has neither argued nor presented any evidence capab le
proving that the forum-selection clause was the product of fraud
Nor has the defendant argued that requiring him
defend plaintiff's claims
deprive him of
Texas would be so inconvenient as
day in court .
The Supreme Court has held that
if the forum-selection clause
reasonab le, the fact that
involves inconvenience and expense does not make it unenforceable .
Carnival Cruise Lines, Inc. v. Shute,
1522, 1528 (1991).
Plaintiff has a legitimate interest
from its employment agreements in the venue of its principal place
business. Because the Employment Agreement plainly states that
upersonal jurisdiction shall be had solely
and that Harris County, Texas,
0' XZ SS
resolving disputes 'arising hereunder,' the court concludes that
the forum-selection clause at issue
50th reasonable and enforceable, and that
enforcement of the clause would be unreasonable .
court concludes that
enforceable, and that
forum-selection clause is reasonable and
coveys personal jurisdiction over the
See Kevlin , 46 F .3d at
The Plaintiff's Tort Claims Do Not Fall Outside of the
Scooe of the Forum-selection Clause
Defendant argues that even
the forum selection clause
enforceable , the forum selection clause in this case
the plaintiff's tort claims fall outside the scope of that clausex s
Defendant argues that
hqere, in addition to its breach of contract claimsr
Plaintiff has pled a statutory m isappropriation of trade
secrets claim under Chapter 134A of the Civil Practice &
Remedies Code and, '
'in the alternative,' a tortious
interference claim . These claim s plainly sound Mstrongly
in tort,' and (
are) not 'factually intertwined' with the
breach of contract claims .
To the extent the forum -selection clause is
enforceable at all, it does not encompass Plaintiff's
tort claim s. Thus, Plaintiff's tort claim s, at least ,
should be dismissed for lack of personal jurisdictionx 6
Plaintiff responds that
every claim against E
defendant) would not exist but for
defendantrsq employment and execution of the Contract.
plaintiffrs) claims for misappropriation
of trade secrets and tortious interference arise from the
Contract as a m atter of 1aw regardless if they are based
in tort or statute.
In the Contract, (
bargained for the right to have any dispute between the
parties be heard in Texas and E
defendant) should not be
allowed to avoid that bargainx 7
In addition to
claim for breach
Second Amended Complaint asserts claims for misappropriation and
sDefendant 's Motion
p . 10.
Dism iss ,
Docket Entry No .
plaintiff's Opposition, pp .
pp . 15-16.
wrongful use of trade secrets, breach of confidential relationship ,
tortious interference with on-going and/or prospeetive contracts
and/or relationships, and violations
Abuse Act, 18
The Fifth Circuit has expressly
general distinction between
with respect to analysis of whether particular claim s fall within
forum selection clause . Marinechance Shipping, Ltd .
v. Sebastian, 143 F.3d 216, 221-22 (
5th Cir.), cert. denied,
uWe find no persuasive support for such a general
/). The Fifth Circuit has instead instructed courts to
'look to the language of the parties' contracts to determ ine which
causes of action are governed by the forum selection clauses .' Id .
at 222 . Although the Fifth Circuit has not articulated a specific
test for determining when claims fall within the scope of a forum
selection clause , other Circuits have articulated 'general rules
regarding the circumstances in which a forum selection clause will
apply to tort claim s.'
Terra International, Inc . v . Mississipri
Chemical CorD ., 1l9 F.3d 688, 694 (
8th Cir.), cert. denied, 118
In Terra the parties entered into a licensing contract with a
forum selection clause providing, in pertinent part, that ul
dispute or disputes arising between the parties hereunder' must be
Id . at 690 .
A fter finding that this
forum selection clause language applied only
plaintiff's tort claim s arose under the agreement . In doing so the
Eighth Circuit recognized the following three tests :
whether the claims Minvolv E
p art ie s ;'
citing, respectively, Coastal Steel Corp. vu Tilchman Wheelabrator
2d 190, 203 (
cert. denied, 104
1983); Manetti-Farrow, Inc. v. Gucci Americaz-lnc.,
1988)7 and Lambert v. Kvsar,
F.2d 1110, 1121-22
Following the First Circuit's decision
Lambert , 983 F.3d at 1110, the Eighth Circuit held that the forum
because ' tlhe same exact facts surrounding Terra's
would also give rise
breach of contract claim .'
Here, the forum selection clause is contained in an Employment
Agreement that delineates the terms of plaintiff's offer
Regional Managing Director .
selection clause is not worded as broadly as some forum selection
clauses because it only applies to ndisputes arising hereunderz ' in
Terra the Eighth Circuit observed that the word Mhereunder'
forum selection clause typically nrefers to the relations
119 F.3d at 694 (
cases indicating uthat forum selection clauses referring to claims
nunder the agreement' can be broad enough
contract-related tort claims').
The crux of the plaintiff's complaint is that
an Employment Agreement with defendant
market and provide
consulting services to plaintiff's clients, that pursuant
agreement plaintiff entrusted defendant with access to and use of
its confidential business, proprietary and trade secret information
perform his duties, and that defendant breached the
Employment Agreem ent and the duties that arose therefrom when he
confidential business, proprietary, and trade secret information to
own business . Because the Employment Agreement contains
noncompetition, nonsolicitation, and nondisclosure covenants that
continue in effect even after the employment relationship ends,l8
plaintiff's tort claims ultimately depend on the existence
contractual relationship between the parties, and involve the same
as p laintiff's parallel
contract . The court therefore concludes that the plaintiff's
contract claim s fall within the scope of the forum -selection clause
Employm ent Agreement, Exhibit
Docket Entry No . 8-2, A rticle VII.
to Plaintiff's Opposition ,
included in the parties' Employment Agreement . See Terra, 119 F.3d
at 694-95 .
See also International Software Svstems, Inc. v .
F.3d 112, 115-16 (
5th Cir. 1996) (
enforcement of forum selection clause ueven though E
not technically suing for breach of contract' because Mthe entire
controversy centers around which party's interpretation
contract is the correct one .
Defendant Had Minimum Contacts with Texas
selection clause in the parties' Employment A greement is mandatory,
reasonable, and that the claim s asserted
Plaintiff's Second Amended Complaint fall within - not beyond - the
scope of that forum selection clause , the court concludes that by
executing the Employment Agreement with the forum selection clause,
the defendant consented
this forum .
The court therefore concludes that the forum selection clause is
dispositive of plaintiff's argument that the court lacks personal
jurisdiction, and that the court need not consider defendant's
constitutional argument as
46 F.3d at
personal jurisdiction. See Kevlin,
See also Carnival Cruise Lines,
uBecause we find the forum-selection clause to be dispositive
this question, we need not consider petitioner's constitutional
Exercise of Personal Jurisdiction Over the Defendant Is
Fair and Reasonable
and reasonable to require
the nonresident defendant;
the interests of the forum state ;
court must consider
the plaintiff's interest
the interstate judicial system's interest
obtaining the most efficient resolution of controversies; and
interest of the
fundamental substantive social policies .
Inc . v . A PA
Central Freight Lines
citing Buraer Kina,
at 2185, and Asahi Metal
Industrv Co , Ltd . v . Surerior Court of California , Solano Countv,
1026, 1033 (
Once a plaintiff establishes minimum contacts between the
defendant and the forum State, the burden of proof shifts
to the defendant to show that the assertion of
jurisdiction is unfair and unreasonable.
Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (
The defendant must make a 'compelling case.'
Central Freiaht Lines, 322 F.3d at 384 (
quoting Burler King, 105 S.
be unduly burdensom e
expense for him to litigate this case
Texas, that Texas has no
dispute regarding employment
employee who resides in California, and that litigating this matter
California would be
more efficient means
jurisdiction over him would offend traditional notions of fair play
and substantial justicex g None
these arguments demonstrates
that traditional notions of fair play and substantial justice would
be offended by asserting personal jurisdiction over defendant
this case .
Texas may be inconvenient
defendant , plaintiff would be equally inconvenienced if required to
California . Texas has an interest
Texas company , that calls
forum , and that requires the application of Texas law .
Marathon Metallic Building Co . v . Mountain Emrire Construction Co w
Aug. 1981); Central Freiaht
F.3d at 384 (
nTexas would seem to have an interest in
adjudicating its dom iciliary's breach of contract and tortious
interference claims that
satisfy Due Process
concerns about traditional notions
play and substantial
not unfair to require defendant
an action on an Employment Agreement that he entered into with
Texas law . Exercising personal jurisdiction over
this case does not offend traditional notions of
Docket Entry No .
play and substantial justice in light of Texas' interest
See Alliantgroup, 2009 WL 1109093, *10 (
Airlines, Inc. v. Roqerson ATS, 952 F.supp. 377, 381 (
holding that a nonresident defendant's consent
forum-selection clause, standing alone,
the traditional notions of fair play and substantial justicel).
The court concludes that the Employment Agreement's forum -selection
Employment Agreement with the forum selection clause the defendant
consented to personal jurisdiction in this forum . Accordingly, the
court concludes that defendant's motion
personal jurisdiction should be denied.
111 . Motion to Dismiss for Failure to State a Claim
Defendant argues that this action should be dismissed under
Federal Rule of
Procedure 12 ( 6)
claim for which relief may be granted because
1) plaintiff) has failed to sufficiently allege under
TvoMbiy and Iqbal any conduct on the part of Defendant
nonsolicitation clause is governed by California 1aw and
nonsolicitation clause would be unenforceable under Texas
Plaintiff has also failed to state a claim for
interference because it has failed to sufficiently allege
facts supporting the essential elements of those
20Id . at 2, Docket Entry No .
Plaintiff responds that defendant's motion to dism iss for failure
to state a claim should be denied because
( it has sufficiently alleged conduct on the part of
Mols that violates the Employment Agreement; and ( the
non-solicitation clause is valid and enforceable under
b0th California and Texas law . Alliantgroup has also
plead sufficient facts to support its claim s for
interference by alleging sufficient facts supporting the
essential elements of those claimsx l
Standard of Review
A motion to dismiss pursuant
failure to state a claim for which relief may be granted tests the
formal sufficiency of the pleadings and
defendant attacks the complaint because it fails to state a legally
cognizable claim .'
Ramminc v . United States, 281 F.3d 158, 161
2001), cert. denied sub nom Cloud v. United States,
The court must accept the factual
allegations of the complaint as true, view them in a light most
favorable to the plaintiff, and draw a1l reasonab le inferences in
the plaintiff's favor .
When a federal court review s the sufficiency of a
complaint, before the reception of any evidence either by
affidavit or admissions , its task is necessarily a
limited one . The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled
to offer evidence to support the claim s.
plaintiff's Opposition ,
Docket Entry No .
Swierkiewicz v. Sorema N . ., 122
Scheuer v. Rhodes, 94
992, 997 (
1683, 1686 (
dismissal a p laintiff must allege '
'enough facts to state a claim
relief that is plausible on
Bell Atlantic Corp . v .
unlawfully-harmed-me accusation .' A shcroft v . Iabal, 129 S .
1937, 1949 (
merely consistent with'
complaint pleads facts that
of the line between possibility and plausibility of entitlement
dism iss, district courts are able
consider documents that are attached to a motion to dism iss if they
the plaintiff's complaint and are central
the plaintiff's claim .' Scanlan v . Tex . A & M Univ ., 343 F .3d
5th Cir. 2003) (
citing Collins v. Morqan Stanlev Dean Witter,
224 F.3d 496, 498-99 (
2000)). See also Causev v. Sewell
F.3d 285, 288
'Documents that a defendant attaches
considered part of the pleadings
they are referred
plaintiff's complaint and are central
her c1aim .').
Breach of Contract
Defendant argues that plaintiff has failed to state
for breach of the Emp loyment Agreement because plaintiff has failed
sufficiently allege any conduct that would be
Employment Agreement, and because the nonsolicitation clause of the
unenforceable under either California
Texas 1aw .2
The essential elements
breach of contract claim in Texas
valid contract ;
tendered performance by the plaintiff;
breach of contract by
damages sustained by
result of the breach . Mullins v . TestAmerica, Inc w
citing Aguiar v. Seaal,
564 F .3d 386,
14th Dist.) 2005, pet. deniedl).
Plaintiff's Second Amended Complaint alleges that defendant
breached the Employment Agreement by violating the confidentiality
inter alia, accessing
defendant's possession after he resigned and using that information
to contact three specific Alliantgroup CPA contacts on behalf
H Defendant's Motion to Dism iss , pp . 10-15, Docket Entry No .
pp . 14-19.
his new company , i .e ., Rick Heldwien of Oxnard, California ; Jeff
Bickel of Salt Lake City, Utah; and Dan Brklacich of Bountiful,
Utah .23 Plaintiff also alleges that it was damaged by these actions
of the plaintiff.z4
These allegations of fact are sufficient to
survive defendant's Rule 12(
breach of contract claim .
Misaoororriation of Trade Secrets
Defendant argues that plaintiff has failed to state
for m isappropriation of trade secrets because p laintiff's assertion
allegations of specific facts supporting
cause of action .2
To establish a claim for trade secret misappropriation under
Texas law , a plaintiff must show
the defendant acquired the trade secret through breach
of a confidential relationship
defendant disclosed or used the trade secret without consent . See
Education Manacement Services, LLC v . Tracev, l02 F .supp .3d 906,
( . Tex. 2015) (
citing Wellocix, Inc. v. Accenture, L .
716 F.3d 867, 874 (
2013), and Tex.
Prac. & Rem . Code
3second Am ended Complaint, Docket Entry No.
p. 8 %
24Id . at 10 % 24 .
zsDefendant's Motion to Dismiss, pp . 15-16, Docket Entry No .
pp . 19-20.
Complaint are that defendant accessed confidential and proprietary
defendant's possession after his resignation, that defendant used
contact at least three
allegations of fact are sufficient
survive defendant 's Rule
b)(6) motion to dismiss plaintiff's claim
and wrongful use of trade secretsx f
Defendant argues that plaintiff has failed to state
for tortious interference because plaintiff has failed to state any
facts supporting the elements
contracts a plaintiff must establish that :
that were subject
defendant willfully and
second Amended Complaint, Docket Entry No .
%% 25-31 .
Docket Entry No .
proximately caused damages; and
actual damages .
Faucette v .
Chantosr 322 S.
W.3d 901, 913 (
App .-Houston E Dist .q 2010, no
citing Browninc-Ferris, Inc. v. Revna, 865 S. .2d 925, 926
Tex. 1993)). To prevail on a claim of tortious interference with
prospective contracts, a plaintiff must
the defendant's conduct was independently tortious or wrongful Id .
citing Wal-Mart Stores, Inc. v. Sturqes,
S. .3d 711, 726
See also Advanced Nano Coatinqs, Inc. v. Hanafin,
478 Fed . Appx .
setting forth elements
claim for tortious interference with prospective contract).
Plaintiff alleges :
Pleading in the alternative , and without waiving the
preceding, ALLIANTGROUP would show that MOLS tortuously
prospective contracts/relationships with its clients
and/or CPA contacts. MOLS actions are not privileged or
justified. MOLS' willful and malicious interference is a
proximate cause of the
Plaintiff's Second Amended Complaint are not
interference with either
an existing or a prospective contract because plaintiff has failed
allege facts capab le of establishing that contracts existed that
intentionally comm itted acts of interference , that defendant's acts
second Amended complaint , Docket Entry No .
independently tortious or unlaw ful act .
The court concludes
therefore that plaintiff's claim for tortious interference should
be dismissed for failure to state a claim
which relief may be
IV . Conclusions and Order
the reasons stated
above , the court concludes
that by executing the forum selection clause contained
parties' Employment Agreement, the defendant consented to personal
Thus the defendant is not entitled to
dismissal for lack of personal jurisdiction.
the reasons stated
5 111, above, the court concludes
that plaintiff's claim for tortious interference fails to state
which relief may be granted, but that plaintiff's other
claims are sufficient to survive defendant's motion to dism iss for
failure to state a claim for which relief may be granted .
Accordingly, Defendant 's Motion
Dismiss, Docket Entry
No . 3, is GRANTED as to plaintiff's claim for tortious interference
which is hereby D ISMISSED W ITH PREJUD ICE ,
otherwise DEN IED .
SIGNED at Houston , Texasr on this 30th day of January, 2017.
SIM LA KE
UNITED STATES DISTRICT JUDGE
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