United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendant Adam
Hirschfeld's Motion to Compel Arbitration and Stay
Proceedings [Docket No. 26]. The Court has jurisdiction over
this matter pursuant to 28 U.S.C. §§ 1331 and 1367.
DTC Energy Group and defendant Ally Consulting, LLC
(“Ally”) are competitors in the oil and gas
staffing industry. Docket No. 24 at 2-3, 10, ¶¶ 4,
7, 10, 42. Defendants Adam Hirschfeld and Joseph Galban are
former employees of DTC who currently work for Ally.
Id. at 3, ¶¶ 8-9. Plaintiff alleges that
defendants misappropriated confidential information and trade
secrets belonging to plaintiff, including information related
to plaintiff's operations, customer and candidate
databases, and pricing strategy. Id. at 1-2, 17-19,
¶¶ 2, 82-90.
14, 2017, plaintiff filed a Motion for Temporary Restraining
Order and Preliminary Injunction [Docket No. 4] seeking,
among other things, to enjoin defendants' continued use
and disclosure of plaintiff's confidential information
and trade secrets. Docket No. 4 at 3. At the July 20, 2017
hearing on the motion for a temporary restraining order, the
Court issued an oral ruling that plaintiff had failed to
demonstrate a likelihood of success on the merits and denied
plaintiff's request for a temporary restraining order.
Docket No. 17 at 68, 68:21-24.
September 13, 2017, plaintiff filed an amended complaint and
an amended motion for a preliminary injunction. Docket No.
24; Docket No. 25. The amended complaint asserts claims for
breach of contract, breach of the duty of loyalty, unjust
enrichment, tortious interference with business relations,
tortious interference with contract, unfair competition,
civil theft, civil conspiracy, and misappropriation of trade
secrets under 18 U.S.C. § 1839 and Colo. Rev. Stat.
§ 7-74-102. Docket No. 24 at 19-30. None of the
defendants has responded to the amended preliminary
injunction motion, and only Mr. Galban and Ally have filed
answers to the amended complaint. See Docket No. 27;
Docket No. 28. On September 26, 2017, Mr. Hirschfeld filed a
Motion to Compel Arbitration and Stay Proceedings [Docket No.
26], contending that the claims against him are subject to
arbitration under the terms of his employment agreement with
DTC. Docket No. 26. Paragraph 16 of that agreement provides,
in relevant part:
Except for an action exclusively seeking injunctive relief,
any disagreement, claim or controversy arising under or in
connection with this Agreement, Employee's employment or
termination of employment with the Company shall be resolved
by way of confidential binding arbitration, pursuant to the
Uniform Arbitration Act, C.R.S. § 13-22-201 et.
seq., to be conducted in the City and County of Denver,
State of Colorado, all costs of enforcement, collection,
including reasonable attorney's fees, to be awarded to
the party or parties substantially prevailing therein.
Docket No. 24-1 at 7, ¶ 16. There is no dispute that
this agreement governed Mr. Hirschfeld's employment with
DTC. See Docket No. 29 at 3, ¶ 2.
parties agree that Colorado law governs the interpretation of
the arbitration provision in Mr. Hirschfeld's employment
agreement. See Docket No. 26 at 2, ¶ 4; Docket
No. 29 at 6. Under Colorado law, “[a]rbitration is a
matter of contract and is governed by contract
principles.” Winter Park Real Estate & Invs.,
Inc. v. Anderson, 160 P.3d 399, 403 (Colo.App. 2007). W
hen interpreting a contract, a court must “seek to
effectuate the intent and reasonable expectations of the
parties.” Id. If the parties' intent is
unclear, however, “a court must apply a presumption in
favor of arbitration, and prohibit litigation unless the
court can say . . . that the arbitration provision is not
susceptible of any interpretation that encompasses the
subject matter of the dispute.” Id.
extent the parties also rely on federal law in support of
their arguments, the Federal Arbitration Act
(“FAA”) does not differ from Colorado law in any
respect material to this case. Like Colorado law, the FAA
“reflect[s] both a liberal . . . policy favoring
arbitration and the fundamental principle that arbitration is
a matter of contract.” Sanchez v. Nitro-Lift
Technologies, LLC, 762 F.3d 1139, 1145 (10th Cir. 2014)
(quoting AT & T Mobility LLC v. Concepcion, 563
U.S. 333, 339 (2011)).
to these principles, courts “must rigorously enforce
arbitration agreements according to their terms, ”
Am. Express Co. v. Italian Colors Restaurant, 570
U.S. 228, 133 S.Ct. 2304, 2309 (2013), and resolve “any
doubts concerning the scope of arbitrable issues” in
favor of arbitration. Sanchez, 762 F.3d at 1146
(quoting Moses H. Cone Mem'l Hosp. v. Mercury
Construction Corp., 460 U.S. 1, 24-25 (1983)).
Mr. Hirschfeld concedes that plaintiff's amended
complaint seeks only injunctive relief against him,
see Docket No. 26 at 7, he argues that
plaintiff's claims are subject to arbitration for two
reasons: (1) the arbitration provision is broad and thus a
presumption in favor of arbitration applies; and (2)
plaintiff asserts claims against Mr. Hirschfeld - such as
breach of contract, breach of loyalty, civil theft, ...