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Nutritional Biomimetics, LLC v. Empirical Labs, Inc.

United States District Court, D. Colorado

March 15, 2018

NUTRITIONAL BIOMIMETICS, LLC, Plaintiff/Counterclaim Defendant and Counterclaim Plaintiff,
v.
EMPIRICAL LABS INCORPORATED, Defendant/Counterclaim Plaintiff,
v.
EMEK BLAIR, CLVM, LLC AND CHARLES BARKER Counterclaim Defendants/Counterclaim Plaintiffs
v.
KELLY GOYEN and ASA WALDSTEIN, Counterclaim Defendants.

          ORDER

          KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE.

         This case comes before the court on Counterclaim Defendants Kelly Goyen and Asa Waldstein's (“Defendants”) motion for summary judgment on the tortious interference claim asserted against them by Counterclaim Defendants/Counterclaim Plaintiffs Emek Blair, CLVM, LLC and Charles Barker (“Plaintiffs”).[1]

         On August 8, 2017, Defendants filed their motion under Fed.R.Civ.P. 56. (Doc. No. 249). Plaintiffs filed their response on August 29, 2017 (Doc. No. 261 [“Resp.”]), and Defendants filed their reply on September 12, 2017 (Doc. No. 301 [“Reply”]).

         INTRODUCTION

         This case concerns competition between two entities engaged in the nutraceutical supplements field. For the purposes of summary judgment disposition, two critical facts are undisputed: (1) that Plaintiff Blair left the employ of Defendant Empirical Labs and established CLVM, LLC, and (2) that Defendants sent an email to potential customers of Plaintiffs following Plaintiff Blair's departure. These facts-in particular, the email itself-give rise to Plaintiffs' suit for tortious interference. The email states:

It has come to our attention that a disgruntled ex-employee of our company who was recently terminated by Empirical Labs is attempting to establish a business in competition with our company. We understand that he has solicited certain of our customers to do business with him. This former employee has an enforceable non-compete with our company, and we consider his actions improper. We value our relationship and believe that we have provided you with qualified products at good prices. We would hope that in the event you are contacted by our ex-employee that you will decline his invitation … and continue your relationship with Empirical Labs. We would also ask that you inform us of any such contact.

         (Doc. No. 261-1 (the “April 2015 email”).

         Preceding distribution of the April 2015 email, Plaintiff Blair and Defendant Empirical Labs entered into an agreement which contained a covenant not to compete, stating:

8. In the event that Emek Blair's employment at Empirical Labs is ended, voluntarily or otherwise, these non-compete terms are in place
b. Emek Blair may not work as a wet chemistry researcher in the nutraceutical liposomal field for a period no less than 18 months
i. Emek Blair may work in an R&D capacity in any other field including but not limited to competing nutraceutical companies.

         (Resp. at 6). (emphasis added.)

         STANDARD OF REVIEW

         Summary judgment should be granted “if the pleadings together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Reeves v. Churchich, 484 F.3d 1244, 1250 (10th Cir. 2007). When a motion for summary judgment “is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading” but must set forth “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). A disputed fact is “material” if it is essential to resolution of the claim under the relevant law. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th ...


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