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)

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