United States District Court, D. Colorado
OPINION AND ORDER ON MOTIONS TO DISMISS
S. Krieger Chief Judge
MATTER comes before the Court on the Defendants'
Motions to Dismiss (## 14,
15), the Plaintiff's responses
(## 23, 24), and the
Defendants' replies (## 31,
32). For the reasons that follow, the first
motion is granted and the second motion is denied.
Court has jurisdiction to hear this case under 28 U.S.C.
following general allegations are drawn from the Complaint
and for purposes of these Motions are taken as true. They are
supplemented as necessary as part of the Court's
Mary McDonald worked for Plaintiff Insight Global, a staffing
company, in its Boston office for close to two years. She
started as a recruiter-in-training and was subsequently
promoted to recruiter and then to account manager. During her
employment, Ms. McDonald had access to extensive confidential
business information and trade secrets regarding
Insight's business, services, customers, clients,
pricing, strategies and financial information. Insight ended
its employment relationship with Ms. McDonald in May 2017.
Ms. McDonald then relocated to Denver and accepted employment
with Defendant Beacon Hill Staffing, performing a similar job
to what she did at Insight.
McDonald's original employment agreement with Insight
imposed several restrictions that restricted her use and
disclosure of Insight's trade secret information during
and after her employment. Among these restrictions were
provisions limiting use of 1) Insight's trade secrets; 2)
Insight's confidential business information; 3) a
“no competition” provision operative for two
years within the “Territory” which is defined as
the lesser of 35 miles from Ms. McDonald's business
location (Boston) or the length of a straight line between
Ms. McDonald's business location and her most distant
customer or client; 4) an agreement not to solicit customers
or clients for whom she has provided services; 5) an
obligation to return Insight's property and information
on written demand; and 6) to provide a copy of the employment
agreement to any employer for whom Ms. McDonald works in the
2 year period following her employment with Insight. After
her employment with Insight ended, Ms. McDonald entered into
a Separation Agreement with Insight, in which she reaffirmed
her commitment to abide the restrictions in her employment
agreement (the Reaffirmation Provision). She also affirmed
that she had returned all of Insight's property (the
Return of Property Affirmation).
violation of the restrictions in the various agreements, Ms.
McDonald misappropriated Insight's confidential and trade
secret information including the names of customers in the
Denver area. In her new employment with Beacon Hill, Ms.
McDonald is allegedly using or disclosing Insight's trade
secrets and confidential business information in violation of
her contractual obligations, and that she has failed to give
appropriate notice of her employment with Beacon Hill.
Beacon Hill, the Complaint alleges that it has knowledge of
Ms. McDonald's contractual obligations to Insight, but
that it has instructed Ms. McDonald that she does not need to
comply with these obligations. Beacon Hill has coordinated
with Ms. McDonald to cover up her breaches of the Separation
Agreement. In addition, Beacon Hill is engaging in
Complaint, Insight states the following causes of action
against Ms. McDonald: (1) breach of employment agreement, (2)
misappropriation of trade secrets under three statutes, (3)
breach of separation agreement, (4) fraud, and (5) breach of
duty of loyalty. The Complaint also alleges two causes of
action against Beacon Hill: 1) tortious interference with Ms.
McDonald's employment agreement; and 2) unfair
McDonald moves to dismiss only the fraud claim (#
15). Beacon Hill moves to dismiss both the
tortious-interference and unfair-competition claims
reviewing a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the Court must accept all
well-pleaded allegations in the complaint as true and view
those allegations in the light most favorable to the
nonmoving party. Stidham v. Peace Officer Standards &
Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting
Sutton v. Utah State Sch. for the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 1999)). The Court must limit
its consideration to the four corners of the complaint, any
exhibits attached thereto, and any external documents that
are incorporated by reference. See Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009). However, a
court may consider documents referred to in the complaint ...