Alliantgroup, L.P. v. Mols

Filing 14

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)

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United States District Court Southern District of Texas IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIV ISION ENTERED January 30, 2017 David J. Bradley, Clerk ALLIANTGROUP, 5 5 5 5 5 5 5 5 5 Plaintiff, BRAD MOLS , Defendant . 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, under cause number 2016-44206 asserting claim s for breach against defendant, Brad Mols, contract, misappropriation and wrongful use of trade secrets, and for temporary injunctionx On September 21, 2016, plaintiff filed a First Am ended Petition in the State Court action .z On October 20, 2016, defendant filed a Notice Removal ( Docket Entry entered an Order December 2016, court Amend Notice of Removal to Allege Facts Establishing Subject Matter Jurisdiction ( Docket Entry No. 10), and on January 2017, defendant filed an Amended Notice ( Docket Entry No. Removal that alleges facts sufficient to establish that there is complete diversity of the parties and the amount controversy exceeds $75,000. lplaintiff's Original Petition, Application for Temporary 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 . Pending before ( Docket Entry No. Defendant's Motion cou rt in which defendant asks the court Plaintiff's First Amended Complaint entirety personal jurisdiction and/or failure relief may be granted . state November Dism iss dismiss lack claim for which 2016, plaintiff filed Plaintiff's Second Am ended Complaint, Application for Temporary Injunction, and Request No . and Plaintiff AlliantGroup 's Opposition to Defendant Brad Mols' Motion No . Permanent Injunction ( Docket Entry Dismiss ( 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 a Second Amended Complaint , because the issue of personal jurisdiction raised by the motion to dismiss remains outstanding, instead of merely declaring motion 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 light the claim s asserted the Plaintiff's Second Amended Complaint, and for the reasons stated below, concludes that the motion 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 . Backlround Plaintiff is a tax consulting firm with its primary office Houston, Texas. Defendant is citizen of California . Plaintiff alleges that it employed defendant as a Regional Managing Director pursuant to an Employment Agreement signed by defendant 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 Injunction ( 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 . 4 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 . The Employment A greement also contained noncompetition , nonsolicitation, and nondisclosure covenantsx Plaintiff alleges that on about May 2016, defendant 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 come know 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 Rick Heldwien Jeff Bickel Bountiful, Salt Utah .8 Lake City, Utah; Plaintiff alleges Oxnard, California ; and Dan Brklacich violations the 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 ( g).9 6Id ., pp . 6-9, Article V II. Riirst M ended Petition , p . 4 , Docket Entry No . 1-5, p . 6 n %% 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 . Id J E 4 % 18 . II . Motion to Dism iss for Lack of Personal Jurisdiction Defendant argues that personal jurisdiction lacking because : 1. 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 surrounding states. Plaintiff's tort claims fallg) outside the scope of the forum -selection clause, which applies only to claims uarising H under' the employment agreement. ' Plaintiff has failed jurisdiction, because to establish Defendant personal lacks minimum contacts with Texas and because Plaintiff's asserted causes of action do not arise out of or result from Defendant's forum-related contacts . 4. 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 Plaintiff responds that forum selection clause enforceable, the claim s alleged all fall within the scope of that clause, minimum defendant Plaintiff also argues that defendant directed jurisdiction will contacts was injured this forum , with Texas. conduct that the that exercising personal offend traditional notions fair play and substantial justice. l l l oDefendant's Motion pp . 7-8. Dismiss, Docket Entry No . ll plaintiff 's Opposition, pp . 5-17 , Docket Entry No . 8 r pp . 105 A. Standard of Review Dism issal lack personal jurisdiction governed by Federal Rule of Civil Procedure l2 ( b)( 2). When a foreign defendant moves dismiss for lack of personal jurisdiction under Rule 12( 2), nthe plaintiff ' b)( bears the burden of establishing the district court's jurisdiction over the defendant.r' ' Ouick Technolocies, Inc. v. Sace Grour PLC, 313 F.3d 338, 343 ( 5th Cir. 2002), cert. denied, ( 2003) ( quoting Mink v . AkAA Development LLC , l9O F. 3d 333, 335 ( 5th district court rules 1999)). motion to dism iss 'When the ' lack of personal jurisdiction ' 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 644, 648 making Cir.), cert. denied, l15 ( 1994)) determination , the district court may consider the contents of the record before the court at the time of the motion , including 'affidavits, testim ony, discovery.r' ' any interrogatories, combination of the depositions, recognized methods of 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- . continued) Guidrv v . United States Tobacco Co., 1999). However, the court allegations, even not obligated uncontroverted . credit conclusory 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 question law be determined by th g Clourt.' e ' Ruston Gas Turbines, Inc . v . Donaldson Co ., Inc ., F.3d 415, 418 1993). B. Applicable Law '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, ' 278, ( 5th 1997), cert. denied, F.3d ( 1998). Moreover, a federal court may only exercise personal jurisdiction over nonresident defendant the exercise of personal jurisdiction comports with the Due Process Clause of the Fourteenth Amendment. Id . Thus, the court may exercise personal jurisdiction over nonresident defendant like Mols the forum state's long-arm statute confers personal jurisdiction over that defendant; and the exercise of personal jurisdiction comports with the Due Process Clause of the Fourteenth Amendment .' ' F.3d 753, 759 ( 2010). McFadin v . Gerber, 2009), cert. denied, 68 Since the Texas long-arm statute extends as far as 7 constitutional due process allow s, the court considers only the second step of the inquiry . Id . Due process is satisfied if the unonresident defendant has certain minimum contacts with ( the forum) such that the maintenance does offend 'traditional notions p lay substantial justice.r' Gardemal v. Westin Hotel Co., 186 F.3d 588, ' 1999) ( quoting International Shoe Co. v. State of Washincton , Office of Unemolovment Comrensation and Placement, ( 1945)) ( quoting Milliken v. Mever, 343 ( 1940)). nThe A minimum contacts' inquiry is fact intensive and no one element is decisive ; rather the touchstone whether the defendant's conduct shows that Areasonably anticipates being haled into court .r' ' F.3d at McFadin, satisfies the due process requirem ent, plaintiff presumption arises that jurisdiction is reasonable, and the burden of proof and persuasion shifts defendant opposing jurisdiction compelling case that the presence some other considerations would render jurisdiction unreasonable.' ' Rudzewicz, 105 S. present Buraer Kina Corp . v. 2174, 2185 ( 1985). uThere are two types of ' minimum contacts': those that give rise to specific personal jurisdiction and those that give rise general personal jurisdiction.' Lewis v. Fresne, 252 F.3d ' 2001). See also Panda Brandvwine, F.3d at 867-68 ( recognizing that a district court may assert either general 8 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 , forum state cause are directly related action . 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, A 1868, ( 1984): 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 .' ' Kina, 105 at availment' must 2183. uThe non-resident's such that the defendant anticipate being haled into court' Burcer ' purposeful 'should reasonably the forum state .' Ruston Gas ' Turbines, Inc. v. Donaldson Co., Incw F.3d 415, 419 ( 5th Cir. 1993) ( citing World-Wide Volkswaqen Corp . v. Woodson, 559 ( 2971 ( 1980)). diversity case, when the out-of-state defendant has signed contract agreeing be sued 9 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, contract ( 1998). written p rima facie valid and enforceable unless the opposing party shows that enforcement would be unreasonable .' ' Kevlin Services, Inc. v . Lexinlton State Bank, 46 F.3d 1995) ( per curiam ). See also Calix-chacon v . Global International Marine, Incw 493 F.3d 507, there ( 5th Cir. 2007) ( recognizing that ustrong presumption in favor of enforcement of forum selection clauses/ ( ') citing Stewart Oraanization, Inc. v. Ricoh Corp ., 2239, 2246 ( 1988) ( Kennedy, concurring) valid forum-selection clause is given controlling weight in al1 but the most exceptional cases' 'l) In Kevlin , 46 F .3d the Fifth Circuit enforced a forum-selection clause and reversed the district court 's dismissal lack personal jurisdiction. resident, executed contract plaintiff, a North Carolina administer benefit services to the bank's custom ers . Texas bank Id . at 14 . The contract provided that Texas law applied and that a1l disputes would be resolved Dallas County, Texas . Id . A fter plaintiff filed suit in Dallas County , the bank removed the case federal court and moved dism iss lack personal 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 E blecause ( 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 the bankq. Id . 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 S. 2009) ( citing cases). Analysis 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 clause mandatory nparties' intent the perm issive . A language clearly demonstrates make forum) exclusive.' ' Orleans v . Municipal Administrative Services, Inc w ( 5th Cir. 2004), cert. denied, 125 S. Citv of New 376 F.3d 501, 1396 ( 2005). uWhere the agreement contains clear language showing that lurisdiction is appropriate only in a designated forum , the clause is mandatory .' ' Von Graffenreid v . Craig , F.Supp . 2d ( .D. Tex. 2003) N By contrast , courts have held forum-selection provisions perm issive when the language provide ( party's consent to jurisdiction in one forum does nA not necessarily waive its right forum selection clause establishing that must venue See, e .? ., Municipal Administrative Services, exclusivity . F. at 3d prescribe does clearly have an action heard in another . exclusive , must go beyond particular forum will have jurisdiction demonstrate the parties' intent make that jurisdiction exclusive./). ' 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 /3 be the 'sole venue' for resolving disputes Marising hereunder .' l ' ' 'l HEmployment Agreement, Exhibit 1-A to Plaintiff's Opposition, Docket Entry No. 8-2, Art. IX, % F) ( emphasis added). 1 Id . 4 The words nsole' and nsolely' are a simple but clear limitation ' ' that not only permits but requires Harris County, Texas, forum this dispute . The forum-selection be the clause thus mandatory and enforceable unless the defendant shows that unreasonable . See Kevlin , ( finding that forum selection clause was mandatory that stated ' tqhe legal venue of 'E this contract and any disputes arising from it shall be settled Dallas, County, Texas'). ' See also Havnsworth, 121 F.3d 963 (' 'The presumption of enforceability may be overcome, however, by a clear showing that circumstances.r/). / the clause Auunreasonable' under ' the 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 favor enforcing 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 contravene Havnesworth , strong F .3d public policy 9637 Calix-chacon , the forum state . F .3d at Defendant has not met his sub stantial burden of rebutting the presumptive validity of the mandatory forum-selection clause . Defendant has neither argued nor presented any evidence capab le proving that the forum-selection clause was the product of fraud overreaching . 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, the State be the 0' XZ SS 1C S ' 'sole venue' ' resolving disputes 'arising hereunder,' the court concludes that ' ' the forum-selection clause at issue clause that defendant mandatory forum-selection 50th reasonable and enforceable, and that has met heavy burden enforcement of the clause would be unreasonable . court concludes that enforceable, and that defendant . establish Accordingly, the forum-selection clause is reasonable and coveys personal jurisdiction over the See Kevlin , 46 F .3d at 2. 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 narrow and the plaintiff's tort claims fall outside the scope of that clausex s Defendant argues that E 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 E defendantrsq employment and execution of the Contract. Consequently, E 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, ( plaintiffj 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 contract, Plaintiff's Second Amended Complaint asserts claims for misappropriation and l sDefendant 's Motion p . 10. Dism iss , Docket Entry No . l 6Id l7 plaintiff's Opposition, pp . pp . 15-16. 10-11, Docket Entry 8, 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 rejected 1030( g). Computer Fraud The Fifth Circuit has expressly general distinction between contract claims with respect to analysis of whether particular claim s fall within the scope forum selection clause . Marinechance Shipping, Ltd . v. Sebastian, 143 F.3d 216, 221-22 ( 5th Cir.), cert. denied, ( 1998) ( uWe find no persuasive support for such a general distinction./ /). 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, 118 629 ( 1997). In Terra the parties entered into a licensing contract with a forum selection clause providing, in pertinent part, that ul aqny dispute or disputes arising between the parties hereunder' must be ' litigated Mississippi . Id . at 690 . A fter finding that this forum selection clause language applied only 16 disputes arising under the licensing agreement, the court analyzed whether plaintiff's tort claim s arose under the agreement . In doing so the Eighth Circuit recognized the following three tests : the tort claims Aultimately ' contractual relationship nresolution of the contracti' and ' facts as depend relates breach of a whether interpretation whether the claims Minvolv E e) parallel claim existence p art ie s ;' ' between claim s the whether of same operative contract .' ' Id . ( citing, respectively, Coastal Steel Corp. vu Tilchman Wheelabrator Ltd w 7O9 F. 2d 190, 203 ( 3d cert. denied, 104 349 F.2d 509, ( 1983); Manetti-Farrow, Inc. v. Gucci Americaz-lnc., 1988)7 and Lambert v. Kvsar, 1993)). F.2d 1110, 1121-22 Following the First Circuit's decision Lambert , 983 F.3d at 1110, the Eighth Circuit held that the forum selection clause issue applied plaintiff's claims because ' tlhe same exact facts surrounding Terra's 'E would also give rise breach of contract claim .' ' claims Terra, F.3d at Here, the forum selection clause is contained in an Employment Agreement that delineates the terms of plaintiff's offer defendant as Regional Managing Director . Although employ forum 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 arisen as result of contract .' ' have 119 F.3d at 694 ( citing cases indicating uthat forum selection clauses referring to claims 'hereunder' ' ' nunder the agreement' can be broad enough ' Cover contract-related tort claims'). / The crux of the plaintiff's complaint is that an Employment Agreement with defendant entered into market and provide consulting services to plaintiff's clients, that pursuant that agreement plaintiff entrusted defendant with access to and use of its confidential business, proprietary and trade secret information order perform his duties, and that defendant breached the Employment Agreem ent and the duties that arose therefrom when he resigned without notice, and m isappropriated plaintiff's confidential business, proprietary, and trade secret information to build 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 operative facts as p laintiff's parallel claim breach contract . The court therefore concludes that the plaintiff's contract claim s fall within the scope of the forum -selection clause l8 Employm ent Agreement, Exhibit Docket Entry No . 8-2, A rticle VII. 18 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 . Amplicon, Inc., F.3d 112, 115-16 ( 5th Cir. 1996) ( affirming enforcement of forum selection clause ueven though E plaintiffq 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 Because the court has already concluded that the forum selection clause in the parties' Employment A greement is mandatory, enforceable , 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 personal jurisdiction 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, S. at 1525 ( uBecause we find the forum-selection clause to be dispositive this question, we need not consider petitioner's constitutional argument as personal jurisdiction.') ' Exercise of Personal Jurisdiction Over the Defendant Is Fair and Reasonable deciding whether nonresident defendant and reasonable to require litigate Texas, the burden several factors: the nonresident defendant; the interests of the forum state ; securing relief; court must consider the plaintiff's interest the interstate judicial system's interest obtaining the most efficient resolution of controversies; and the shared interest of the several states fundamental substantive social policies . Inc . v . A PA TransDort Corr w Central Freight Lines F.3d zoo3lt citing Buraer Kina, furthering 384 at 2185, and Asahi Metal Industrv Co , Ltd . v . Surerior Court of California , Solano Countv, - 1O7 1026, 1033 ( 1987)). 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. Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 ( 5th Cir. 1999) The defendant must make a 'compelling case.' ' ' Central Freiaht Lines, 322 F.3d at 384 ( quoting Burler King, 105 S. at 2185). Asserting that be unduly burdensom e expense for him to litigate this case interest adjudicating time and Texas, that Texas has no dispute regarding employment an employee who resides in California, and that litigating this matter California would be more efficient means 20 resolving controversy, defendant argues that assertion of personal 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 . While litigation Texas may be inconvenient defendant , plaintiff would be equally inconvenienced if required to litigate about California . Texas has an interest contract with this litigation Texas company , that calls Texas forum , and that requires the application of Texas law . See Marathon Metallic Building Co . v . Mountain Emrire Construction Co w F. 2d ( 5th Lines, 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 sufficient satisfy Due Process concerns about traditional notions play and substantial lustice./ /). not unfair to require defendant respond Texas to an action on an Employment Agreement that he entered into with Texas corporation application defendant and that specified a Texas forum and the Texas law . Exercising personal jurisdiction over this case does not offend traditional notions of l goefendant's Motion 12. Dism iss, Docket Entry No . play and substantial justice in light of Texas' interest case. the See Alliantgroup, 2009 WL 1109093, *10 ( citing American Airlines, Inc. v. Roqerson ATS, 952 F.supp. 377, 381 ( N.D. Tex. 1996) ( holding that a nonresident defendant's consent Texas forum-selection clause, standing alone, the traditional notions of fair play and substantial justicel). The court concludes that the Employment Agreement's forum -selection clause is binding on the defendant , that executing Employment Agreement with the forum selection clause the defendant consented to personal jurisdiction in this forum . Accordingly, the court concludes that defendant's motion dismiss lack 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) b)( failure state 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 that violates the Employment Agreement; ( 2) the nonsolicitation clause is governed by California 1aw and is unenforceable under California law; ( 3) the nonsolicitation clause would be unenforceable under Texas law . Plaintiff has also failed to state a claim for misappropriation of trade secrets or tortious interference because it has failed to sufficiently allege facts supporting the essential elements of those claims .2O 20Id . at 2, Docket Entry No . 22 p. 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 1) Mols that violates the Employment Agreement; and ( the 2) 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 misappropriation of trade secrets and tortious interference by alleging sufficient facts supporting the essential elements of those claimsx l A. Standard of Review A motion to dismiss pursuant Fed. Civ. 12( b) failure to state a claim for which relief may be granted tests the formal sufficiency of the pleadings and uappropriate when defendant attacks the complaint because it fails to state a legally cognizable claim .' ' ( 5th Ramminc v . United States, 281 F.3d 158, 161 2001), cert. denied sub nom Cloud v. United States, Ct. 2665 ( 2002). 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 . Id . 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. zl plaintiff's Opposition , Docket Entry No . 23 p. Swierkiewicz v. Sorema N . ., 122 A Scheuer v. Rhodes, 94 992, 997 ( 2002) ( quoting 1683, 1686 ( 1974)). To avoid dismissal a p laintiff must allege ' 'enough facts to state a claim relief that is plausible on Twomblv, standard' ' face .' ' 1955, requires umore Bell Atlantic Corp . v . ( 2007). than an This nplausibility unadorned, the-defendant- unlawfully-harmed-me accusation .' A shcroft v . Iabal, 129 S . ' 1937, 1949 ( 2009). 'Where ' ' merely consistent with' complaint pleads facts that defendant's liability, 'stops short of the line between possibility and plausibility of entitlement relief.'' ' Id. ( quoting Twomblv, considering motion 1966). When dism iss, district courts are able consider documents that are attached to a motion to dism iss if they are nreferred the plaintiff's complaint and are central the plaintiff's claim .' Scanlan v . Tex . A & M Univ ., 343 F .3d ' 536 ( 5th Cir. 2003) ( citing Collins v. Morqan Stanlev Dean Witter, 224 F.3d 496, 498-99 ( 5th Cadillac-chevrolet, Inc., 2000)). See also Causev v. Sewell F.3d 285, 288 (A 'Documents that a defendant attaches considered part of the pleadings a motion 2004) dismiss are they are referred plaintiff's complaint and are central 24 ( 5th her c1aim .'). ' in the B. Analysis Breach of Contract Defendant argues that plaintiff has failed to state claim for breach of the Emp loyment Agreement because plaintiff has failed sufficiently allege any conduct that would be breach the Employment Agreement, and because the nonsolicitation clause of the Employment Agreement unenforceable under either California Texas 1aw .2 2 The essential elements are: existence breach of contract claim in Texas valid contract ; tendered performance by the plaintiff; defendant; and performance or breach of contract by damages sustained by plaintiff as result of the breach . Mullins v . TestAmerica, Inc w 2009) ( citing Aguiar v. Seaal, 564 F .3d 386, S. W.3d ( Tex. App . -Houston ( 14th Dist.) 2005, pet. deniedl). Plaintiff's Second Amended Complaint alleges that defendant breached the Employment Agreement by violating the confidentiality clause inter alia, accessing confidential and Alliantgroup laptop proprietary information computer that improperly contained remained 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. 25 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( b)(6) motion dismiss plaintiff' breach of contract claim . Misaoororriation of Trade Secrets Defendant argues that plaintiff has failed to state claim for m isappropriation of trade secrets because p laintiff's assertion m isappropriation trade secrets allegations of specific facts supporting devoid direct cause of action .2 5 To establish a claim for trade secret misappropriation under Texas law , a plaintiff must show secret ; the existence trade the defendant acquired the trade secret through breach of a confidential relationship improper means; the defendant disclosed or used the trade secret without consent . See Education Manacement Services, LLC v . Tracev, l02 F .supp .3d 906, ( . Tex. 2015) ( W D. citing Wellocix, Inc. v. Accenture, L . L.P., 716 F.3d 867, 874 ( 5th 2013), and Tex. Prac. & Rem . Code 2 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. 26 The 134A .002). allegations Plaintiff's Second Amended Complaint are that defendant accessed confidential and proprietary information , i.e ., plaintiff's clients Alliantgroup the laptop identity and and/or contact contacts, computer that improperly inform ation contained remained defendant's possession after his resignation, that defendant used the plaintiff's specific contact at least three individuals, Brklacich, that Rick Heldwien, plaintiff was allegations of fact are sufficient Jeff dam aged Bickel, thereby . and Dan These survive defendant 's Rule misappropriation 12 ( b)(6) motion to dismiss plaintiff's claim and wrongful use of trade secretsx f Tortious Interference Defendant argues that plaintiff has failed to state claim for tortious interference because plaintiff has failed to state any facts supporting the elements claim .2 7 establish existing contracts a plaintiff must establish that : that were subject interference; contracts existed defendant willfully and of interference; defendant's acts 26 second Amended Complaint, Docket Entry No . %% 25-31 . z7 Defendant's Motion Dism iss, 10-12 Docket Entry No . proximately caused damages; and actual damages . Faucette v . Chantosr 322 S. W.3d 901, 913 ( Tex. App .-Houston E Dist .q 2010, no 14 pet.) ( citing Browninc-Ferris, Inc. v. Revna, 865 S. .2d 925, 926 W ( 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, ( Tex. 2001)). S. .3d 711, 726 W See also Advanced Nano Coatinqs, Inc. v. Hanafin, 478 Fed . Appx . 2012) ( 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 interfered with ALLIANTGROUP'S on-going and/or 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 ALLIANTGROUP herein.2 8 comp lained of by Plaintiff's Second Amended Complaint are not These allegations sufficient damages interference with either state a an existing or a prospective contract because plaintiff has failed allege facts capab le of establishing that contracts existed that were subject interference , that defendant willfully intentionally comm itted acts of interference , that defendant's acts proximately caused damages, or that defendant 28 second Amended complaint , Docket Entry No . 28 comm itted % an 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 granted . IV . Conclusions and Order the reasons stated 5 above , the court concludes that by executing the forum selection clause contained the 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 claim 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. < A SIM LA KE UNITED STATES DISTRICT JUDGE 29

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