United States District Court, D. Colorado
RONALD A. SCOTT, Plaintiff,
RADHAKRISHNAN GURUSAMY, TECHNOSOFT CORPORATION, and SUNRIDGE GROUP, LLC Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty United States Magistrate Judge.
the Court is Defendant Radhakrishnan Gurusamy's Motion to
Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2) [filed December
29, 2016; ECF No. 22]. Pursuant to 28 U.S.C. §
636(b)(1)(B) and D.C. Colo. LCivR 72.1(c), the Honorable
Raymond P. Moore referred the matter to this Court for
recommendation. ECF No. 25. For the reasons that follow, the
Court respectfully recommends that Defendant's Motion to
Dismiss be denied.
Statement of Facts
following are factual allegations made by Plaintiff in his
Complaint and Response, and offered by Defendant
Radhakrishnan Gurusamy for jurisdictional analysis.
Plaintiff's allegations are taken as true for analysis
under Fed.R.Civ.P. 12(b)(2). See, e.g., Behagen
v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th
Cir. 1984) (“[In] a motion to dismiss for lack of
jurisdiction . . . [t]he allegations in the complaint must be
taken as true to the extent they are uncontroverted by the
September 26, 2016, Plaintiff accepted a position as
Defendant Technosoft's Senior Director of Business
Development. Compl. ¶¶ 1-4, ECF No. 1. Technosoft
is a Michigan corporation that provides information
technology, business process management, and consulting
services to clients around the world. Def.'s Mot. to
Dismiss 2, ECF No. 22; Compl. ¶ 2; Aff. of Radhakrishnan
Gurusamy ¶ 8, ECF No. 22-1. Plaintiff's
responsibilities included selling large information
technology and software projects throughout Colorado, and
other states in the western United States. Compl. ¶ 2;
Pl.'s Resp. to Def.'s Mot. To Dismiss ¶ 4, ECF
No. 24. Based on pre-employment discussions with
Technosoft's representatives, Plaintiff believed he would
earn a 10% to 12% commission rate, which would equate to
approximately $550, 000 per year. Compl. ¶ 3.
Plaintiff's main contact inside Technosoft was Glen
Higgins-Technosoft's Senior Vice President of Sales.
Id. at ¶¶ 3-4, 13. Plaintiff's only
pre-employment conversation with Gurusamy-Technosoft's
President and Chairman of the Board-occurred during
Plaintiff's interview at Technosoft's headquarters in
Michigan . Aff. of Radhakrishnan Gurusamy ¶¶ 7,
12-13; Compl. ¶¶ 32-33.
Plaintiff began his employment, Technosoft did not provide
documents confirming its compensation plan and commission
percentages, despite numerous requests from Plaintiff. Compl.
¶¶ 7-9. Additionally, Technosoft did not provide
Plaintiff with the necessary technology to perform his
responsibilities. Id. at ¶ 12. On December 1,
2016, Plaintiff complained to Technosoft's Legal Director
about the preceding issues. Id. at ¶ 13. The
following day, Technosoft terminated Plaintiff's
employment. Id. at ¶ 14.
pro se, Plaintiff filed his Complaint on December 5,
2016 against Gurusamy, Technosoft, Richard Penington, and
Sunridge Group, LLC. Plaintiff brings six claims for relief:
(1) civil conspiracy, (2) retaliation, (3) luring and
fraudulent inducement, (4) breach of contract, (5) emotional
distress, and (6) intentional fraud and misrepresentation.
Compl. ¶¶ 15-59. Generally, Plaintiff alleges
representatives of Technosoft conspired to fraudulently
induce Plaintiff to leave his prior employment, and then
retaliated against him for complaining to Technosoft's
legal department. Id.
December 28, 2016, Technosoft filed an Answer to
Plaintiff's Complaint. ECF No. 16. Although Technosoft
denies or states that it lacks knowledge over Plaintiff's
substantive allegations, Technosoft does not contend that
this Court lacks personal jurisdiction over it. Id.
Technosoft also asserts a counterclaim against Plaintiff for
deceit in the hiring process. Id. at 12-15.
responded to Plaintiff's Complaint with the present
Motion, which challenges this Court's personal
jurisdiction over him. ECF No. 22. Gurusamy asserts that he
is a Michigan resident who has traveled to Colorado on behalf
of Technosoft only once, which was for an unrelated client
dinner. Aff. of Radhakrishnan Gurusamy ¶¶ 4, 9.
Additionally, Gurusamy contends his only conversations with
Plaintiff occurred at Technosoft's office in Michigan.
Id. at ¶ 12. In response, Plaintiff does not
contend Gurusamy has any direct contacts with Colorado.
Pl.'s Resp. to Def.'s Mot. to Dismiss. Instead,
Plaintiff asserts the Court should impute Technosoft's
contacts with Colorado to Gurusamy, because Technosoft is
Gurusamy's alter ego. Id. at ¶ 1.
filed a Reply on January 12, 2017. ECF No. 30. In support of
his Reply, Gurusamy attached a second affidavit, which
provides facts rebutting Plaintiff's alter-ego argument.
ECF No. 30-1. Plaintiff subsequently filed a surreply without
seeking permission from the Court. ECF No. 33. After
Plaintiff realized that he is not automatically entitled to a
surreply, he filed a motion to obtain leave to file a
surreply on January 26, 2017. ECF No. 38. Because Gurusamy
attached a new affidavit to his Reply, the Court granted
Plaintiff's Motion only to the extent it directly rebuts
the facts Gurusamy alleges in his second affidavit. ECF No.
February 9, 2017, the Court held a hearing regarding the
present Motion. See ECF No. 48. Specifically, the
Court asked the parties to present argument on whether
Gurusamy was a primary participant in the actions giving rise
to this Court's personal jurisdiction over Technosoft.
ECF No. 42.