Premier Group, Inc., The v. Bolingbroke et al

Filing 41

ORDER. ORDERED that defendants' Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue or, Alternatively, to Transfer Venue 28 is GRANTED in part as indicated in this order. ORDERED that the Clerk of the Court shall transfer this case to the United States District Court for the District of Utah pursuant to 28 U.S.C. § 1404(a). ORDERED that the preliminary injunction hearing set for Tuesday, July 18, 2015 is hereby VACATED. Entered by Judge Philip A. Brimmer on 07/27/15. (jhawk, ) [Transferred from Colorado on 7/28/2015.]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 15-cv-01469-PAB-CBS
THE PREMIER GROUP, INC.
Plaintiff,
v.
DARREN BOYD BOLINGBROKE,
HEIDI McNULTY,
MICHAEL SHANE COLLARD,
JOSEPH R. SIMMONS,
JAMES J. HUBBARD,
KIMSITH BOUN,
MARIA ALVARADO, and
DHS GROUP, LLC,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the defendants’ Motion to Dismiss for Lack of
Personal Jurisdiction and Improper Venue or, Alternatively, to Transfer Venue [Docket
No. 28].
I. BACKGROUND1
Plaintiff is a staffing firm founded in 2008 that provides temporary, “temp-to-hire,”
and direct hire employees in the accounting, information technology, and construction
industries. Docket No. 1 at 3-4, ¶¶ 15-16. Plaintif f is headquartered in Denver,
Colorado with additional offices in Colorado Springs, Colorado, Austin, Texas, and

1

The following facts are taken from plaintiff’s complaint [Docket No. 1] and are
presumed true for purposes of resolving this motion unless otherwise indicated.

Midvale, Utah (the “Utah office”). Id. at 4, ¶ 16. Defendants Darren Bolingbroke, Heidi
McNulty, Michael Collard, Joseph Simmons, James Hubbard, Kimsith Boun, and Maria
Alvarado (collectively, the “individual defendants”) are former employees of plaintiff who
worked in the Utah office. Id. at 4-5, ¶¶ 18-24. Each individual defendant submitted a
declaration, stating “I have worked exclusively in and for the Utah Branch of Premier.”
See, e.g, Docket No. 28-1 at 2, ¶¶ 3-4. In the course of their employment with plaintiff,
plaintiff alleges that Mr. Bolingbroke and Ms. McNulty signed an Employee NonCompete Agreement (the “non-compete agreement”). Docket No. 1 at 6, ¶ 31. The
non-compete agreement prohibits the signatory from engaging in a competitive
business within a 50 mile radius during his or her employment with plaintiff and for one
year thereafter. Docket No. 1-3 at 1-2. Defendants deny that Mr. Bolingbroke and Ms.
McNulty signed such an agreement.

Each of the individual defendants acknowledged

receiving a copy of plaintiff’s employee handbook, which prohibits, among other things,
employees from improperly using or disclosing plaintiff’s trade secrets or confidential
business information. Docket No. 1 at 6-7, ¶ 33.
Defendant DHS Group LLC (“DHS”) is a limited liability company organized
under the laws of Utah. Id. at 3, ¶ 12. DHS was was allegedly formed in April 2015 by
defendants Bolingbroke, McNulty, and Collard to purchase plaintiff’s Utah office. Id. at
5-6, ¶¶ 27-30.
In June 2015, plaintiff discovered that multiple clients had recently ceased doing
business with plaintiff. Id. at 7, ¶¶ 34-35. Plaintiff’s complaint does not specify whether
the identified former clients were clients of the Utah office or of plaintiff’s other offices.

2

Plaintiff alleges that the individual defendants are diverting these clients to DHS. Id. at
7-8, ¶ 36. Plaintiff also discovered a business plan [Docket No. 1-6] on a company
laptop that was issued to Ms. McNulty. The business plan is for a company to be run
and staffed by the individual defendants and whose business model consists of a
staffing firm “based in Salt Lake City” and providing the placement of workers “in Utah.”
Docket No. 1-6 at 3. The business plan includes financial information from “Plaintiff’s
internal financial records regarding Plaintiff’s Utah Branch” and, according to plaintiff,
sets forth a plan to either purchase the Utah of fice from plaintiff or “raid Plaintiff’s
customers in Utah.” Docket No. 1 at 8, ¶¶ 37-40. Plaintif f alleges that the sources of
certain portions of the business plan were (1) a document prepared by one of plaintiff’s
owners, (2) plaintiff’s confidential internal policies and analysis documents, and (3)
plaintiff’s internal profit and loss spreadsheets. 2 Id. at 9, ¶¶ 44-45.
Plaintiff accuses defendants, before their termination, of changing the
assignment dates of every Utah worker in plaintiff’s computer system. Id. at 9-10, ¶ 47.
Plaintiff also accuses the individual defendants of changing the voicemail messages on
their company-issued cell phones to eliminate any reference to plaintiff. Id. at 10, ¶ 49.
And plaintiff accuses Mr. Collard of collecting a salary from plaintiff, but not actually
working at the Utah office. Id. at 10, ¶¶ 50-51.
Plaintiff recently analyzed the laptop computers and other information stored at
the Utah office. Id. at 11, ¶ 54. Plaintiff discovered multiple instances where Mr.
2

Although plaintiff’s complaint does not specify whether the profit and loss
projections contained in the business plan concerned plaintif f’s entire business or just
the Utah office, given the stated goal of defendants’ business plan, it appears likely that
the business plan contains profit and loss projections as to the Utah office.
3

Bolingbroke, Ms. McNulty, and Mr. Collard forwarded to their personal email accounts
customer invoicing data, customer lists, Utah office budget information, Utah office
payroll information, and emails from plaintiff’s customers. Id. at 11-14, ¶ 54. Plaintiff
discovered minutes from weekly meetings between the individual defendants at one of
their homes where the Utah office was discussed, which plaintiff contends evidences a
conspiracy to take customer data, defraud plaintiff, and build a competing enterprise.
Id. at 14-15, ¶¶ 55-56. Plaintiff also alleges that Ms. McNulty contacted one of plaintiff’s
Utah workers with a message that plaintiff was going out of business and that Ms.
McNulty was starting her own company. Id. at 15, ¶ 57. Plaintiff claims that the
foregoing facts establish that defendants have “formed a competing business, have
diverted and continue to divert business from Plaintiff to their new competing enterprise,
and are using confidential, proprietary and/or trade secret information belonging to
Plaintiff to illegally raid Plaintiff’s business in Utah and defraud Plaintiff.” Id. at 15, ¶ 58.
On July 9, 2015, plaintiff terminated the individual defendants’ employment and
demanded that they return all property in their possession belonging to plaintiff. Id. at
10, ¶ 48. Mr. Bolingbroke returned to the Utah office that day and provided plaintiff with
a Letter of Intent to purchase the assets of plaintiff’s “Utah operations.” Docket No. 1-7
at 1.
On July 11, 2015, plaintiff filed the present case. Docket No. 1. Plaintiff brings
state-law claims against Mr. Bolingbroke and Ms. McNulty for breach of contract for
violating the non-compete agreements and against all defendants for quantum
meruit/unjust enrichment, conversion and civil theft, misappropriation of trade secrets,
breach of employees’ duty of loyalty/fiduciary duty to employer, intentional interference
4

with contracts and prospective business relations, civil conspiracy, and fraudulent
concealment. Id. at 16-29. Plaintiff also brings a federal claim against all defendants
for multiple violations of the Computer Fraud and Abuse Act (“CFAA”). 18 U.S.C. §
1030. Plaintiff seeks monetary and injunctive relief, in the latter case requesting that
defendants be required to return property belonging to plaintiff, including computer
equipment and plaintiff’s proprietary business information. See id. at 17-18, ¶ 74.
Plaintiff filed a motion for a temporary restraining order (“TRO”) and preliminary
injunction along with its complaint. Docket No. 2. The parties reached an agreement
with respect to plaintiff’s request for a TRO. Docket No. 9 at 1; see also Docket No. 221. Defendants, however, terminated the agreement, Docket No. 22-6 at 1, which led
plaintiff to file a renewed motion for a TRO and preliminary injunction. Docket No. 22.
The Court has set a hearing on plaintiff’s motions for preliminary injunction for Tuesday,
July 28, 2015. Docket No. 33.
On July 21, 2015, defendants filed the present motion. Docket No. 28.
Defendants argue that this case should be dismissed for lack of personal jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(2) and should be dismissed or, in the alternative,
transferred, for improper venue pursuant to Rule 12(b)(3). Id. at 1. On July 23, 2015,
per the Court’s request, plaintiff filed a response brief. Docket No. 35. On July 24,
2015, defendants filed a reply. Docket No. 36.
II. STANDARD OF REVIEW
The purpose of a motion to dismiss under Rule 12(b)(2) is to determine whether
the Court has personal jurisdiction. The plaintiff bears the burden of establishing

5

personal jurisdiction over defendants. Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1417
(10th Cir. 1988). The plaintiff can satisfy its burden by making a prima facie showing of
personal jurisdiction. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063,
1070 (10th Cir. 2008). The Court will accept the well-pleaded allegations of the
complaint as true to determine whether plaintiff has made a prima facie showing that
personal jurisdiction exists. AST Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d
1054, 1057 (10th Cir. 2008). If the presence or absence of personal jurisdiction can be
established by reference to the complaint, the Court need not look further. Id. The
plaintiff, however, may also make this prima facie showing by putting forth evidence
that, if proven to be true, would support jurisdiction over the defendant. Dudnikov, 514
F.3d at 1070. “[A]ny factual disputes in the parties’ affidavits must be resolved in
plaintiffs’ favor.” Id.
In reviewing a motion to dismiss for improper venue pursuant to Rule 12(b)(3),
“[a]ll well-pleaded allegations in the complaint bearing on the venue question generally
are taken as true, unless contradicted by the defendant’s affidavits. A district court may
examine facts outside the complaint to determine whether its venue is proper.”
Hancock v. Am. Tel. & Tel. Co., Inc., 701 F.3d 1248, 1260-61 (10th Cir. 2012) (quoting
5B Charles Alan Wright et al., Federal Practice & Procedure § 1352 (3d ed. 2015)).
“[T]he court must draw all reasonable inferences and resolve all factual conflicts in favor
of the plaintiff.” Id. at 1261 (quotation and citation omitted). Where the parties have
presented contrary evidence, it may be appropriate for the court to hold an evidentiary
hearing. Id.

6

III. ANALYSIS
Although personal jurisdiction “is typically decided in advance of venue . . .
neither personal jurisdiction nor venue is fundamentally preliminary. . . . Accordingly,
when there is a sound prudential justification for doing so . . . a court may reverse the
normal order of considering personal jurisdiction and venue.” Leroy v. Great W. United
Corp., 443 U.S. 173, 180 (1979). A prudential justif ication for addressing venue first
exists in this matter. There are numerous issues raised by defendants’ personal
jurisdiction arguments, whereas there is but a single question the Court must resolve in
determining whether venue is proper in this District. See id. at 181 (avoiding the “more
difficult” question of personal jurisdiction where it was “so clear that venue was
improper”).
A. Venue
Pursuant to § 1391(b), venue in a civil action lies in
(1) a judicial district in which any defendant resides, . . . ; (2) a judicial district
in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is
situated; or (3) if there is no district in which an action may otherwise be
brought as provided in this section, any judicial district in which any
defendant is subject to the court’s personal jurisdiction with respect to such
action.
Plaintiff alleges that venue is proper pursuant to § 1391(b)(2) because “a substantial
part of the events or omissions giving rise to Plaintiff’s claims occurred in this District.”
Docket No. 1 at 3, ¶ 14. 3 Under § 1391(b)(2), venue is not limited to the district where
3

Plaintiff’s complaint does not assert that venue is proper because “a substantial
portion of property that is the subject of the action is situated” in this District. §
1391(b)(2). Thus, the Court need not consider whether venue would be proper on that
basis.
7

the majority of the events or omissions occurred. Rather, § 1391(b)(2) “contemplates
that venue can be appropriate in more than one district . . . [and] permits venue in
multiple judicial districts as long as a substantial part of the underlying events took
place in those districts.” Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153,
1166 (10th Cir. 2010) (applying prior version of § 1391) (quoting Gulf Ins. Co. v.
Glasbrenner, 417 F.3d 353, 356 (2d Cir. 2005)). The Tenth Circuit has declined to hold
that the venue inquiry is necessarily limited to the defendant’s actions. See id. at 1166
n.11. Once venue is challenged, it is the plaintiff’s burden to show that venue is proper
in the forum district. See Gwynn v. TransCor Am., Inc., 26 F. Supp. 2d 1256, 1261 (D.
Colo. 1998); 5B Charles Alan Wright et al., Federal Practice & Procedure § 1352 (3d
ed. 2015) (noting that imposing burden on plaintiff “seems correct inasmuch as it is the
plaintiff’s obligation to institute his action in a permissible forum, both in terms of
jurisdiction and venue”). The propriety of venue under § 1391(b)(2) “is determined
separately for each claim.” Beams v. Norton, 256 F. Supp. 2d 1203, 1212 (D. Kan.
2003); see also Pioneer Surgical Tech., Inc. v. Vikingcraft Spine, Inc. , 2010 WL
2925970, at *3 (W.D. Mich. July 21, 2010) (“[I]n a case such as this, where multiple
claims are asserted, a court must consider the specific events giving rise to each claim
in addressing whether a substantial connection exists.”); 14D Charles Alan Wright et al.,
Federal Practice & Procedure § 3808 (4th ed. 2015) (“if plaintiff asserts multiple claims
against the defendant, venue must be proper for each claim”).
Defendants argue, and plaintiff does not dispute, that “not a single event in
Plaintiff’s Verified Complaint [is] alleged to have occurred in Colorado” and that

8

defendants “and the companies allegedly diverted by Defendants . . . are all located in
Utah.” Docket No. 28 at 8-9. In response, plaintif f argues that it entered into
contractual relationships with Mr. Bolingbroke and Ms. McNulty, who plaintiff contends
were the leaders of defendants’ plan to compete with plaintiff’s Utah office. Docket No.
35 at 11. Plaintiff also argues defendants logged on to plaintiff’s computers in Colorado
and copied confidential data and that “[m]uch” of the trade secret information at issue
“was created in Colorado and stored in Colorado” or “is situated in Colorado.” Id. at 1112. Although plaintiff’s argument regarding venue does not cite to any allegations in the
complaint, plaintiff provides declarations from three individuals that lend support to its
argument. Plaintiff’s co-owner Rich Johnson states that plaintiff has a centralized
management structure such that defendants knew their actions would inflict injury on
plaintiff’s Denver headquarters. Docket No. 35-1 at 2, ¶ 10. He also states that
plaintiff’s computer system is housed and maintained in Denver and that defendants’
downloaded material from those systems without authorization. Id. at 2, ¶¶ 11-12.
Plaintiff’s IT Administrator Adam Gilbertson states that the company-issued computer
equipment defendants used was purchased and configured in Denver and that the
information defendants sent to their personal email accounts was stored on a computer
system maintained in Denver, “which contained the company’s confidential, proprietary
and/or trade secret information.” Docket No. 35-9 at 1-2, ¶¶ 2, 8-10. Plaintif f’s coowner Debra Johnson states that “profit and loss reports, financial reports and state
and federal taxes are prepared and filed out of Colorado.” Docket No. 35-2 at 2, ¶ 8.
A court conducts a two-part analysis when reviewing challenges to venue under
§ 1391(b)(2). First, it “examine[s] the nature of the plaintiff’s claims and the acts or
9

omissions underlying those claims.” Emp’rs Mut. Cas. Co., 618 F.3d at 1166. Plaintiff’s
complaint alleges that plaintiff’s former employees of the Utah office formed a business
to compete with plaintiff’s Utah office. Defendants intended to either buy the Utah
office and its customer lists from plaintiff or, if plaintiff would not sell, “raid Plaintiff’s
customers in Utah.” Docket No. 1 at 8, ¶¶ 37-40. In f urtherance of their plan,
defendants – while still employed by plaintiff – held meetings at their homes, attempted
to divert plaintiff’s Utah clients away from plaintiff through various means, and
forwarded plaintiff’s confidential, proprietary, and trade secret information to their
personal email accounts. Upon termination, defendants retained computer equipment
belonging to plaintiff, despite plaintiff’s requests that they return such equipment.
The second step requires the Court to “determine whether substantial ‘events
material to those claims occurred’ in the forum district.” Emp’rs Mut. Cas. Co., 618 F.3d
at 1166 (quoting Gulf Ins., 417 F.3d at 357). This requirement is satisfied upon a
showing of “acts and omissions that have a close nexus to the alleged claims.” Id.
(quotation and citation omitted). Courts look beyond the acts that triggered a claim to
the entire sequence of events underlying such a claim. Id.
1. CFAA Claims
Plaintiff brings claims for violation of 18 U.S.C § 1030(a)(4) and §1030(a)(5) of
the Computer Fraud and Abuse Act. Docket No. 1 at 16, 18. Althoug h the elements of
each claim are somewhat different,4 both claims allege the same course of conduct.
4

“The elements of a civil claim premised on [18 U.S.C.] § 1030(a)(4) are: (i) the
defendant accessed a protected computer, (ii) the access was either unauthorized or
beyond the scope of access for which the person was authorized, (iii) the defendant
accessed the computer with an intent to defraud and in furtherance of a scheme to
10

Plaintiff alleges that defendants were granted access to its computer system for
developing and growing plaintiff’s business. Id. at 16, ¶ 66. Plaintiff alleges that
defendants exceeded the scope of their authorized access to its computer system by
obtaining proprietary business information “for the purpose of undercutting Plaintiff’s
business, diverting customers away from Plaintiff’s business and to their own new
enterprise, and developing their own competitive enterprise that could ultimately destroy
Plaintiff’s business in Utah.” Id. at 16, ¶ 67. Plaintiff alleges that, by accessing
plaintiff’s computer system without authorization, defendants breached plaintiff’s
security measures, requiring plaintiff to overhaul and replace “the security systems on
Plaintiff’s computer.” Id. at 18-19, ¶ 78. There is no dispute that the servers and
computer system hosting much of plaintiff’s proprietary information are located in
Colorado. There is similarly no dispute that defendants accessed that information while
in Utah. The question is whether merely accessing servers located in the forum state
constitutes a substantial event giving rise to a CFAA claim. In the narrow context of
CFAA claims, multiple courts have answered that question in the affirmative. See
Dental Health Prods., Inc. v. Ringo, 2009 WL 1076883, at *3-*4 (E.D. W is. Apr. 20,

defraud, and (iv) the defendant ‘obtained anything of value’ as a result.” Int’l Acad. of
Bus. & Fin. Mgmt., Ltd. v. Mentz, 12-cv-00463-CMA-BNB, 2013 WL 212640, at *10 (D.
Colo. Jan. 18, 2013) (quoting Triad Consultants, Inc. v. Wiggins, 249 F. App’x 38, 40
(10th Cir. 2007)). 18 U.S.C. § 1030(a)(5) provides that it shall be unlawful for anyone
to:
(A) knowingly cause[] the transmission of a program, information, code, or
command, and as a result of such conduct, intentionally cause[] damage
without authorization, to a protected computer; (B) intentionally access[] a
protected computer without authorization, and as a result of such conduct,
recklessly cause[] damage; or (C) intentionally access[] a protected computer
without authorization, and as a result of conduct, cause[] damage and loss.
11

2009) (holding that, where defendant accessed trade secrets stored on computer
located in forum state, venue as to CFAA claim was proper in forum state (citing Argent
Funds Grp, LLC v. Schutt, 2006 WL 2349464, at *2 (D. Conn. June 27, 2006)
(“Substantial events material to the claim occurred in Connecticut; Schutt would not
have been able to obtain the confidential information had the Connecticut file server
never transferred the information to her via the internet. The Connecticut file servers
thus played a central role in the events that gave rise to the claim, and were one of the
means by which the defendant allegedly stole the confidential information.”)));
TracFone Wireless, Inc. v. Adams, 2015 WL 1611310, at *6 (S.D. Fla. Apr. 9, 2015)
(concluding that venue for CFAA claim was proper in the Middle District of Florida
because, among other things, defendant coerced plaintiff’s Miami-based employees
into accessing and manipulating plaintiff’s internal and proprietary systems, which were
also located in Miami); compare Spinello Cos. v. Silva, 2014 WL 4896530, at *2 (D.N.J.
Sep. 30, 2014) (holding that venue for CFAA claim accusing defendant of self-dealing
was proper in New Jersey where defendant, among other things, often worked from
New Jersey office, regularly traveled to plaintiff’s New Jersey headquarters, and
accepted a loan from plaintiff in New Jersey), with Spinello Cos. v. Moynier, 2014 WL
7205349, at *4 (D.N.J. Dec. 17, 2014) (holding that, where plaintiff’s CFAA claim only
accused defendant of deleting information from a laptop, “act was performed in
California, by a resident of California, who worked in a California office” and venue in
New Jersey was therefore improper).

12

Outside the context of the CFAA, courts have reached different conclusions as to
venue when data is stored in one state and accessed from another. See, e.g., Ikon
Office Solutions, Inc. v. Rezente, 2010 WL 395955, at *3 (E.D. Pa. Feb. 3, 2010)
(rejecting argument that venue was proper in Pennsylvania in part because, even
assuming that the data at issue was stored on computers located in Pennsylvania,
“defendants allegedly gained access to and misappropriated plaintiff’s confidential
information and trade secrets through their computers in California”). Here, however,
accessing a protected computer and causing damage to said computer are elements of
plaintiff’s CFAA claims, which renders the location of the computer particularly relevant
to determining the location of substantial acts giving rise to such claims. Because the
computer system that defendants are alleged to have accessed and damaged is
located in Colorado and because access and dam age to a protected computer system
are elements of plaintiff’s CFAA claims, substantial acts giving rise to such claims
occurred in Colorado. Venue as to these claims is therefore proper in the District of
Colorado.
2. Breach of Contract
Plaintiff’s breach of contract claim accuses Mr. Bolingbroke and Ms. McNulty of
breaching their non-compete agreements by forming a business to compete with the
Utah office. Docket No. 1 at 20, ¶ 84. In determining the proper venue for a breach of
contract action, relevant factors include “‘where the contract was negotiated or
executed, where it was to be performed, and where the alleged breach occurred.’”
Etienne v. Wolverine Tube, Inc., 12 F. Supp. 2d 1173, 1181 (D. Kan. 1998) (q uoting PI,

13

Inc. v. Quality Prods., Inc., 907 F. Supp. 752, 757-58 (S.D.N.Y. 1995)). Neither party
offers evidence of where the non-compete agreements were negotiated or executed.
Even assuming that the agreements were negotiated and executed in Colorado and
even considering the fact that the non-compete agreements are governed by Colorado
law, Mr. Bolingbroke and Ms. McNulty were hired for and worked exclusively in the Utah
office. Although the non-compete agreements presumably prohibit competition within a
50 mile radius of any of plaintiff’s offices, there is no indication that the parties entered
into the non-compete agreements out of concern that Mr. Bolingbroke and Ms. McNulty
would form a competitive business in Colorado. Thus, the parties appear to have
contemplated that the agreement would be primarily performed in Utah. See Jenkins
Brick Co. v. Bremer, 321 F.3d 1366, 1372 (11th Cir. 2003) (“The non-compete
agreement was also intended to be performed primarily in Savannah in order to protect
the Savannah business and goodwill that Jenkins Brick acquired with the help of
Bremer. After all, Bremer's sales territory comprised only Savannah and the
surrounding area; there was no goodwill garnered by Bremer in other territories that
needed to be ‘protected’ by virtue of the non-compete provision.”). Moreover, there is
no dispute that the alleged breach of the non-compete agreements occurred in Utah.
Any injury flowing to plaintiff in Colorado from the breach appears to be purely
economic. See Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995) (“if Congress had
wanted to lay venue where the plaintiff was residing when he was injured, it could have
said so expressly”); HME Providers, Inc. v. Heinrich, 2010 WL 653920, at *3 (M.D. Fla.
Feb. 18, 2010) (“If economic harm to the plaintiff were enough to satisfy [§ 1391(b)(2)],
a plaintiff could always bring suit in its home base, thus eviscerating the other parts of
14

[§ 1391(b)].”). Plaintiff does not argue otherwise. Thus, plaintiff fails to establish that
this District is a proper venue for its breach of contract claim. See TSIG Consulting Inc.
v. ACP Consulting LLC, 2014 WL 1386639, at *3 (S.D.N.Y. Apr. 9, 2014) (rejecting
argument that venue for breach of contract claim could be grounded on fact that
defendants accepted employment with company based in forum state, traveled to forum
state to attend meetings, and formed a competing business while employed).
3. Trade Secret Misappropriation
Plaintiff’s trade secret claim accuses defendants of misappropriating plaintiff’s
trade secrets by forwarding confidential, proprietary, and trade secret information to
their personal email accounts. Docket No. 1 at 23-24, ¶ 105. Courts take dif fering
approaches to determining venue regarding trade secret misappropriation claims.
Some courts hold that a misappropriation claim arises “‘when the defendant makes
commercial use of the trade secret,’” because “‘where the gist of the tort is disclosure of
a trade secret in violation of an obligation of confidentiality, the claim likely arises at the
time of disclosure.’” Hicklin Eng’g, L.C. v. Bartell, 116 F. Supp. 2d 1107, 1111 (S.D.
Iowa 2000) (quoting 3 Roger M. Milgrim, Milgrim on Trade Secrets § 13.04 (2000)); see
also TSIG Consulting, 2014 WL 1386639, at *4 (“[T]he fact that defendants may have
obtained TSIG’s confidential information in this district, while certainly ‘a link in the chain
of events,’ simply does not constitute an event giving rise to plaintiff’s claims that
defendants misused that information. The conduct relevant to TSIG’s claims is the
misuse of its information, not defendants’ receipt of it.” (citation omitted, emphasis in
original)); Open Solution Imaging Sys., Inc. v. Horn, 2004 WL 1683158, at *6 (D. Conn.

15

July 27, 2004) (holding that, because defendant received proprietary information as a
necessary part of his job, harm giving rise to plaintiff’s claim was defendant’s improper
use and disclosure of such information). Other courts adopt the bright line rule that,
because trade secrets have a situs in their state of origin, a plaintiff can establish venue
merely by showing that a trade secret originated in the forum state. See, e.g., Paul
Green Sch. of Rock Music Franchising, LLC v. Rock Nation, LLC, 2009 WL 129740, at
*3 (E.D. Pa. Jan. 13, 2009).
The Court finds the reasoning of Hicklin persuasive. Given that, in most cases,
trade secrets can be effortlessly stored and transmitted electronically to and from
virtually any location, a bright line rule could have the effect of haling a defendant into a
remote district having no real relationship to the conduct that precipitated the dispute.
See Cottman v. Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994).
Moreover, although the creation of a trade secret is, in a causal sense, a necessary
element of a trade secret misappropriation claim, it is the misappropriation of a trade
secret which is the substantial event underlying such a claim. See Woodke, 70 F.3d at
985. Here, plaintiff asserts only that “[m]uch” of the misappropriated trade secrets and
confidential information was created in and stored in Colorado. Docket No. 35 at 11.
Other than that, plaintiff does not identify additional facts suggesting that its trade secret
misappropriation claim occurred in Colorado, and no such acts are apparent to the
Court. To the contrary, defendants’ actions in forwarding plaintiff’s information to their
personal email accounts – presumably the prelude to disclosure – appears to have
taken place in Utah. Thus, plaintiff fails to establish that this District is a proper venue
for its trade secret misappropriation claim.
16

4. Quantum Meruit/Unjust Enrichment
Plaintiff alleges that defendants have been unlawfully enriched at its expense
through sales and profits realized from its proprietary information and that defendants
have received and retained property of value that belongs to plaintiff. Docket No. 1 at
21, ¶¶ 89-90. Although plaintiff may have suffered economic loss in Colorado, plaintiff
does not identify any other acts giving rise to this claim that occurred in Colorado. The
acts leading to whatever benefit defendants received occurred in Utah. Any property of
plaintiff that defendants have retained is located in Utah. Thus, plaintiff has failed to
establish that this District is a proper venue for this claim.
5. Tort Claims
Courts evaluating the propriety of venue with respect to tort claims generally
focus on the location where the tortious conduct occurred. See Whiting v. Hogan, 855
F. Supp. 2d 1266, 1286-87 (D.N.M. 2012) (holding that medical expenses incurred in
New Mexico were insufficient basis for venue in New Mexico where traffic accident
occurred in Arizona); Basile v. Walt Disney Co., 717 F. Supp. 2d 381, 386 (S.D.N.Y.
2010) (holding that where arrest, initial custody, and charges took place in Florida,
venue in Southern District of New York was improper, despite fact that subsequent
custody proceedings took place in New York); 14D Charles Alan Wright et al., Federal
Practice & Procedure § 3806 (4th ed. 2015) (“courts tend to f ocus on where the
allegedly tortious actions took place and where the harms were felt”). However, the
mere fact that a plaintiff claims to have suffered injuries upon returning to its state of
residence does not necessarily constitute a substantial part of the events or omissions

17

giving rise to a claim. See Whiting, 855 F. Supp. 2d at 1286; Hanyuan Dong v. Garcia,
553 F. Supp. 2d 962, 965 (N.D. Ill. 2008) (“The fact that he alleges to have suffered
from his injuries after returning to Illinois does not constitute a substantial part of the
events or omissions giving rise to the claim.” (quotations omitted)); Fodor v. Hartman,
No. 05-cv-02539-PSF-BNB, 2006 WL 1488894, at *4 (D. Colo. May 30, 2006) (“the
locus of damage to a plaintiff has not been found to be the basis for setting venue”).
But see Gordon v. DTE Energy, 680 F. Supp. 2d 1282, 1287 (W .D. Wash. 2010)
(holding that, because plaintiff suffered harm from violation of Fair Credit Reporting Act
in Washington, “substantial part of the events giving rise to the claim occurred in
Washington” (citing Myers v. Bennett Law Offices, 238 F.3d 1068, 1075-76 (9th Cir.
2001) (concluding that substantial part of events giving rise to a claim occurred in
Nevada because “at least one of the ‘harms’ suffered by Plaintiffs is akin to the tort of
invasion of privacy and was felt in Nevada”))).
a. Conversion and Civil Theft
There appear to be two aspects to plaintiff’s conversion and civil theft claim.
First, plaintiff alleges that defendants accessed plaintiff’s computer system and took
proprietary information for the propose of diverting its customers, workers, and
candidates to their new enterprise. Docket No. 1 at 22, ¶ 94. In Colorado,
“[c]onversion is defined as any distinct, unauthorized act of dominion or ownership
exercised by one person over personal property belonging to another.” Glenn Arms
Assocs. v. Century Mortg. & Inc. Corp., 680 P.2d 1315, 1317 (Colo. App. 1984); see
also Huffman v. Westmoreland Coal Co., 205 P.3d 501, 509 (Colo. App. 2009) (“T o

18

succeed on his civil theft claim, plaintiff had to establish that (1) defendant knowingly
obtained control over his property without authorization and (2) defendant did so with
the specific intent to permanently deprive him of the benefit of the property.”).5
“Although the act of conversion takes place at the time the converter takes dominion
over the property, predicates to a successful claim for conversion are the owner’s
demand for the return of property, and the controlling party’s refusal to return it.” Glenn
Arms, 680 P.2d at 1317. Assuming that plaintiff can state a claim for conversion or civil
theft of its proprietary information, the lone fact tying such property to Colorado is that it
was stored in plaintiff’s servers located in Colorado. Defendants did not, however,
exercise dominion over the subject property, at the earliest, until the information was
transmitted from Colorado to their location in Utah. See Rezente, 2010 WL 395955, at
*3. The dispute over the return of such property arose in Utah. See Pioneer Surgical,
210 WL 2925970, at *3 (holding that venue for conversion claim alleging refusal to
return property was in state where refusal to return property took place). Thus, in the
absence of argument to the contrary, the Court finds that substantial acts giving rise to
this claim did not occur in Colorado. Venue in this District is theref ore improper.
5

A conversion claim under Utah law is defined as:
A conversion is an act of wilful interference with a chattel, done without lawful
justification by which the person entitled thereto is deprived of its use and
possession. The measure of damages of conversion is the full value of the
property. It requires such a serious interference with the owner's right that
the person interfering therewith may reasonably be required to buy the
goods. Although conversion results only from intentional conduct it does not
however require a conscious wrongdoing, but only an intent to exercise
dominion or control over the goods inconsistent with the owner’s right.
Phillips v. Utah State Credit Union, 811 P.2d 174, 179 (Utah 1991) (quotation omitted).
Thus, regardless of whether Colorado or Utah law applies, the law that will be applied is
essentially the same.
19

b. Breach of Employees’ Duty of Loyalty/
Fiduciary Duty to Employer
Plaintiff alleges that, while defendants were employed by plaintiff, they converted
plaintiff’s property, solicited plaintiff’s customers, used plaintiff’s confidential
information, and illegally transferred plaintiff’s assets. Docket No. 1 at 25, ¶¶ 109-114.
Plaintiff does not identify any acts giving rise to this claim that took place in Colorado.
No such acts are apparent. The mere fact that plaintiff’s proprietary information was
stored on servers in Colorado is merely incidental to this claim, as is the fact that
defendants may have received paychecks from plaintiff’s Colorado headquarters.
Plaintiff alleges that former employees of the Utah office breached their duty of loyalty
and fiduciary duty through acts that occurred in Utah. This District is not a proper
venue for this claim.
c. Intentional Interference with Contracts and Prospective
Business Relations
Plaintiff alleges that defendants interfered with the contracts of its customers and
dissuaded those customers from continuing to do business with plaintiff. Docket No. 1
at 26, ¶¶ 118-119. There is no suggestion that the customer relationships to which this
claim refers concerned customers located in Colorado. Thus, there is no basis for
concluding that a substantial part of the acts giving rise to this claim occurred in
Colorado.
d. Civil Conspiracy
Plaintiff alleges that defendants continue to engage in a conspiracy to steal
plaintiff’s proprietary information in order to “raid Plaintiff’s business and divert business

20

to their competing enterprise.” Docket No. 1 at 27, ¶ 123. Other than the f act that
some of plaintiff’s proprietary information was stored on servers located in Colorado, for
the reasons discussed above, the acts giving rise to this claim occurred in Utah. The
object of the conspiracy was to subvert business activity taking place in the Utah office,
thereby damaging plaintiff’s ability to do business through the Utah office. Cf. Sadighi
v. Daghighfekr, 36 F. Supp. 2d 267, 275-76 (D.S.C. 1999) (f inding venue for civil
conspiracy claim proper in South Carolina because, although the alleged conspiracy
physically took place in Florida, the object of the conspiracy was to remove plaintiff from
board of directors position in South Carolina). Any resulting injury plaintiff suffered in
Colorado appears to be of the economic variety. Plaintiff does not argue otherwise.
Thus, venue in the District of Colorado is not proper as to this claim.
e. Fraudulent Concealment
Plaintiff alleges that, while defendants were still employed by plaintiff, they
concealed from plaintiff their plan to form a competing business in Utah. Docket No. 1
at 27-28, ¶¶ 128-133. Any acts giving rise to this claim that may have occurred in
Colorado – and plaintiff identifies none – are incidental to this claim. Any
misrepresentations defendants made for the purposes of concealing their alleged
scheme originated in Utah. The mere fact that such misrepresentation may have been
received or relied upon by plaintiff in Colorado is insufficient to ground venue. See
Gemini Investors III, L.P. v. RSG, Inc., 2009 WL 776740, at *2 (D. Minn. Mar. 20, 2009)
(“When misrepresentations are the underlying events of a litigation, courts generally
look to the place where the misrepresentations were made, not the place where they

21

were received or relied upon, to determine where the underlying events occurred.”
(collecting cases)).
B. Pendent Venue and Transfer
Neither party appears to have contemplated that venue would lie in this District
for less than all of plaintiff’s claims. Thus, the parties offer little guidance as to how the
Court should proceed. Although it is not clear whether defendants would advocate for
the dismissal of the non-CFAA claims, defendants request that, rather than dismissing
the entire action, this case should be transferred to the District of Utah pursuant to 28
U.S.C. § 1404(a). Docket No. 28 at 9. Plaintiff objects to transfer of this case. Docket
No. 35 at 12. There appear to be three options given that venue exists as to some
claims and not others: (1) exercise pendent venue over the non-CFAA claims, thereby
allowing plaintiff to litigate the entire action in this District, (2) transfer the entire action
to the District of Utah pursuant to § 1404(a), or (3) dismiss the non-CFAA claims, with
the result being that the CFAA claims would be litigated in this Court and the non-CFAA
claims would be litigated in Utah.6
“Under the doctrine of pendent venue, when two or more federal claims are
brought and venue is properly laid as to one claim, that venue will support the
adjudication of the other related claim.” Jackson v. MCI Telecomms. Corp., 1993 WL
408332, at *2 (D. Kan. Sept. 29, 1993). T he doctrine of pendent venue is analogous to
the doctrine of supplemental jurisdiction; both “facilitate the efficient and convenient

6

Pursuant to § 1404(a), a court may only transfer “an entire action, not individual
claims.” Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1518 (10th Cir.
1991).
22

joinder of claims that are so closely related that they constitute one case.” 14D Charles
Alan Wright et al., Federal Practice & Procedure § 3803 (4th ed. 2015); see also Basile,
717 F. Supp. 2d at 387. The doctrine is most often applied where, as here, venue is
lacking for a state law claim that “arises from the same nucleus of operative facts as a
‘properly venued’ federal claim.” Basile, 717 F. Supp. 2d at 387 (citation omitted). In
determining whether to retain claims where venue is lacking, “‘a court must consider
factors such as judicial economy, convenience to the parties and the court system,
avoidance of piecemeal litigation and fairness to the litigants.’” Id. (quoting Hsin Ten
Enter. USA, Inc. v. Clark Enters., 138 F. Supp. 2d 449, 462 (S.D.N.Y. 2000)); see also
Jackson, 1993 WL 408332, at *2 (“The decision whether to exercise pendent venue is a
matter of judicial discretion based upon the relatedness of the claims, judicial economy,
convenience, and fairness.”).7
The considerations relevant to the discretionary exercise of pendent venue are
similar to the considerations relevant to discretionary transfer under § 1404(a). “For the
convenience of parties and witnesses” and “in the interest of justice,” a district court
may transfer a civil action to another venue where it might have been brought. 28
U.S.C. § 1404(a). In ruling on a motion to transfer venue under § 1404(a), courts in the
Tenth Circuit consider a mix of public and private factors, including (1) the plaintiff’s
choice of forum; (2) the accessibility of witnesses and other sources of proof; (3) the

7

The Tenth Circuit does not appear to have acknowledged the doctrine of
pendent venue and courts in the Tenth Circuit do not regularly apply it. Such
circumstances have given at least one court pause as to whether to invoke it. See PFC
Payment Solutions, LLC v. Element Payment Servs., Inc., No. 12-cv-01472-CMA-MJW,
2012 WL 3264305, at *4 (D. Colo. Aug. 10, 2012).
23

cost of obtaining such proof; (4) docket congestion; (5) problems related to the conflict
of laws; (6) the desirability of having local courts determine questions of local law; (7)
advantages and obstacles to a fair trial; and (8) judicial efficiency and economy. Emp’rs
Mut. Cas. Co., 618 F.3d at 1167 (internal citations omitted). A party seeking transfer
has the burden of establishing that the existing forum is inconvenient, id., but “[m]erely
shifting the inconvenience from one side to the other, however, obviously is not a
permissible justification for a change of venue.” Scheidt v. Klein, 956 F.2d 963, 966
(10th Cir. 1992).
Because the applicability of pendent venue and the appropriateness of transfer
pursuant to § 1404(a) turn on the same discretionary considerations, the Court will
consider each relevant consideration in deciding whether to retain this case or transfer
it to the District of Utah, a district where the parties agree this action could have been
brought. See § 1404(a).
1. Plaintiff’s Choice of Forum
“‘[U]nless the balance is strongly in favor of the movant[,] plaintiff’s choice of
forum should rarely be disturbed.’” Emp’rs Mut. Cas Co., 618 F.3d at 1168 (quoting
Scheidt, 956 F.2d at 965). However, less deference is afforded a plaintiff’s choice of
forum if the facts giving rise to the lawsuit “have no material relation or significant
connection to the plaintiff’s chosen forum.” Id. (quotation omitted); see also William W.
Schwarzer, A. Wallace Tashima, & James M. Wagstaffe, Practice Guide: Federal Civil
Procedure Before Trial §§ 4:760-762 (Nat’l Ed. 2013). Plaintiff argues that, because
plaintiff resides in this District, its choice of forum should be entitled to greater

24

deference. However, in addressing the propriety of venue in this district, defendant
asserts, without dispute, that none of the events in plaintiff’s complaint are alleged to
have occurred in Colorado. Docket No. 28 at 8-9. Although plaintiff asserts that it has
a centralized management structure based in Denver, Colorado that oversees certain
aspects of the Utah office, that defendants employment files were maintained in
Denver, and that staff at the Utah office communicated daily with plaintiff’s Colorado
headquarters, Docket No. 35-1 at 2, ¶¶ 6-10, plaintiff’s claims do not directly arise out of
any of these circumstances. Rather, the conduct that gives rise to this case occurred
entirely in Utah, where defendants are alleged to have formed a competing enterprise.
As discussed above, the locus of plaintiff’s computer system does not, with the
exception of plaintiff’s CFAA claims, constitute a substantial act out of which this case
arises. The mere fact that plaintiff suffered economic injury is similarly insufficient to
constitute a material relation or significant connection to Colorado. Thus, the Court
concludes that, although plaintiff’s choice of forum weighs in plaintiff’s favor, it does not
weigh as heavily in plaintiff’s favor as it otherwise might.
2. Accessibility of Witnesses and Sources of Proof
“The convenience of witnesses is the most important factor in deciding a motion
under § 1404(a),” but to demonstrate inconvenience the movant must “(1) identify the
witnesses and their locations; (2) indicate the quality of materiality of the[ir] testimony;
and (3) show[] that any such witnesses were unwilling to come to trial . . . [,] that
deposition testimony would be unsatisfactory[,] or that the use of compulsory process
would be necessary.” Emp’rs Mut. Cas. Co., 618 F.3d at 1169 (quotation and citation
omitted). Defendants’ counsel asserts that he has contacted representativ es for
25

several of the companies mentioned in plaintiff’s complaint. Docket No. 28 at 11.
Defendants assert that, at present, nine such individuals who reside in Utah will testify
that defendants made no effort to divert business to any other company. Id.
Defendants anticipate identifying more witnesses to testify on this topic. Plaintiff argues
that defendants have failed to meet their burden of identifying witnesses’ locations and
the importance of their testimony and have not established why the witnesses would be
unwilling to appear at trial in Colorado or that deposition testim ony would be insufficient.
Docket No. 35 at 13. Although defendants have not established that its witnesses
would be unwilling to travel to Colorado for trial or that their testimony could not be
presented via deposition, the fact that defendants have not established the requisite
elements with particularity is not surprising given that this case was filed only 16 days
ago. Nonetheless, defendants have asserted that at least nine individuals residing in
Utah would testify as to whether defendants’ improperly solicited business while
employed by plaintiff, which would rebut some of the claims raised in plaintiff’s
complaint. On the other hand, plaintiff’s witnesses would presumably include both Rich
and Dara Johnson as well as Mr. Gilbertson, all of whom presumably reside in
Colorado. The allegations in plaintiff’s complaint increase the likelihood that, with the
exception of information regarding plaintiff’s computer system, proof of defendants’ acts
and omissions is likely to reside primarily in the State of Utah. Thus, this factor weighs
in defendants’ favor.
3. Cost of Making Necessary Proof
Defendants assert that, because all of the witnesses and evidence reside in
Utah, the cost of litigating this case would be greater if litigated in Colorado. Docket No.
26

28 at 11. While the residency of a large number of witnesses in Utah may increase the
costs of litigating this case for defendants, because there is no evidence in the record
regarding the potential litigation costs, the Court declines to assign this factor much
weight.
4. Relative Advantages and Obstacles to a Fair Trial
Defendants’ primary argument as to this factor is that many of the individual
defendants are “low-level sales people who were terminated improperly and without
notice and whose future work prospects are suspect by virtue of this case.” Id. at 11.
Defendants attach affidavits from six of the individual defendants that assert, without
explanation, that they do not have the resources to travel to Colorado to defend this
case and will therefore be “den[ied their] right to a fair trial of the issues presented.”
See, e.g., 28-3 at 3, ¶ 10. Defendants further argue that they are currently
unemployed. Docket No. 36 at 6. Plaintiff argues that mere fact that defendants may
be inconvenienced if this case were litigated in Colorado is insufficient to merit transfer.
Docket No. 35 at 12.
To the extent defendants’ argument seeks to transfer the inconvenience of
litigating this case to plaintiff, such an argument is an insufficient reason to transfer a
case out of the forum district. See Cmty. Television of Utah, LLV v. Aereo, Inc., 997 F.
Supp. 2d 1191, 1207 (D. Utah 2014); Leasing, Inc. v. Reservation Ctr., Inc., No. 08-cv02295-LTB, 2008 WL 5411478, at *3 (D. Colo. Dec. 29, 2008). It m ay be true that
litigating this case in the District of Colorado would impose a financial hardship on
certain defendants and impair their ability to participate. However, defendants have not

27

adequately supported their contention. All defendants appear to be adequately
represented at the present time, despite their financial circumstances and residency in
Utah. There is no reason to believe that their testimony could not be heard via video
teleconference or deposition. Moreover, it is not clear whether those who are
unemployed are unemployed because plaintiff’s lawsuit has called into question the
legitimacy of the competing enterprise, which is what this dispute is about. Thus, on
this record, the Court is not convinced that cost concerns would deprive defendants of
the right to a fair trial. This factor weighs in favor of plaintiff.
5. Conflict of Laws and Desirability of Having Local Courts
Determine Questions of Local Law
Generally, it is preferable to have an action adjudicated by a court “sitting in the
state that provides the governing substantive law.” Emp’rs Mut. Cas. Co., 618 F.3d at
1169. Similarly, when “the merits of an action are unique to a particular locale, courts
favor adjudication by a court sitting in that locale.” Id. at 1170. Here, the parties appear
to disagree as to whether Colorado or Utah law would apply to plaintiff’s state-law
claims, and neither party has presented a substantive argument in support of their
position. Moreover, this consideration is less significant because federal judges are
used to applying state law. Id. at 1169. Although the conduct giving rise to this case
occurred primarily in Utah and defendants are Utah residents, plaintiff is a Coloradobased company. Thus, neither Colorado or Utah appears to have a substantially
greater interest in this dispute. The Court finds that these factors do not weigh in favor
of either party.

28

6. Practical Considerations
No difficulties appear to arise from congested dockets, there is no clear
advantage in judicial efficiency or economy to litigating this case in either District, and
there are no concerns over enforcing a judgment against defendants. However, if the
Court both declines to apply pendent venue and declines to transfer this case to the
District of Utah, plaintiff’s non-CFAA claims will be dismissed without prejudice. Plaintiff
would then have to prosecute those claims in Utah, which would result in piecemeal
litigation, increasing costs for both sides. This consideration does not weigh in favor of
either party, but is nonetheless relevant under the circumstances.
7. Discretionary Considerations
Plaintiff’s choice of forum is ordinarily respected; however, there are very few
acts occurring in the forum state that give rise to this case. The Court finds that two
factors weigh heavily in favor of transfer. First, despite plaintiff’s attempts to shift the
focus of this case to Colorado, the fact remains that all of the acts alleged in plaintiff’s
complaint occurred in Utah, making Utah the locus of a majority of the evidence in this
case. Second, under the facts before the Court, the Court is reluctant to apply the
doctrine of pendent venue. Venue is proper in this district only as to plaintiff’s CFAA
claims and only because those claims are premised on defendants accessing and
damaging plaintiff’s Colorado computer system. Conversely, plaintiff’s eight non-CFAA
claims are focused on defendants’ actions to form a competing business and to lure
away plaintiff’s Utah clients, actions which all took place in Utah. See Basile, 717 F.
Supp. 2d at 387-88. Because the acts f orming the basis for venue as to plaintiff’s

29

CFAA claims are only tangentially related to the acts giving rise to plaintiff’s non-CFAA
claims, the Court finds that it would be inappropriate to invoke pendent venue to keep
this case in this District. Dismissing plaintiff’s non-CFAA claims is not an appropriate
option, where doing so would force both parties to bear the costs of piecemeal litigation.
See id. Thus, the Court declines to exercise pendent venue over plaintiff’s non-CFAA
claims and finds that, under the circumstances of this case, defendants have satisfied
their burden of establishing that transfer of this case to the District of Utah is
appropriate pursuant to 28 U.S.C. § 1404(a). 8
IV. CONCLUSION
For the foregoing reason, it is
ORDERED that defendants’ Motion to Dismiss for Lack of Personal Jurisdiction
and Improper Venue or, Alternatively, to Transfer Venue [Docket No. 28] is GRANTED
in part as indicated in this order. It is further
ORDERED that the Clerk of the Court shall transfer this case to the United
States District Court for the District of Utah pursuant to 28 U.S.C. § 1404(a). It is
further
ORDERED that the preliminary injunction hearing set for Tuesday, July 18, 2015
is hereby VACATED.

8

The Court need not therefore address the parties’ arguments regarding personal
jurisdiction.
30

DATED July 27, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

31