United States District Court, D. Colorado
ORDER ON MOTION TO AMEND AND OBJECTIONS TO MINUTE
S. Krieger Chief United States District Judge
MATTER comes before the Court on the Plaintiff's
Motion to Amend (# 88) and the
Defendants' response (# 89); and Beacon
Hill's Appeal (# 67) of the Magistrate
Judge's Minute Order (# 62), the
Plaintiff's response (# 69), and the
Defendant's reply (# 73). For the
reasons that follow, the Motion to Amend is granted and the
Appeal is denied as moot.
Motion to Amend
April 30, 2018, the Court granted Defendant Beacon Hill's
Motion to Dismiss Plaintiff Insight Global's claims
against it for tortious interference and unfair competition.
In the order, the Court invited a motion to amend the
Complaint if Insight is able to overcome the deficiencies
described therein. Insight has now moved to amend its
Complaint to re-allege its claim for tortious interference;
it does not seek to re-allege its claim for unfair
15(a) provides that leave to amend a pleading shall be
“freely given.” Leave to amend may be properly
denied where the Court finds circumstances do not warrant it,
such as where bad faith, undue delay, repeated failures to
cure deficiencies as a result of previous amendments, or
undue prejudice are present. Foman v. Davis, 371
U.S. 178, 182 (1962).
tortious-interference claim alleges that Beacon Hill induced
Ms. McDonald to breach the Separation Agreement. To prove a
claim under Colorado law for tortious interference, a
plaintiff must establish that (1) it had either a valid
existing contract with a third party or it expected to enter
into a contract with a third party, (2) the defendant induced
or otherwise caused the third party to breach the contract or
not enter into the contractual relation, and (3) the
defendant did so intentionally and via improper means.
Harris Grp. v. Robinson, 209 P.3d 1188, 1195-96
(Colo.App. 2009) (citing Amoco Oil Co. v. Ervin, 908
P.2d 493, 502 (Colo. 1995)). When, as here, parties are
engaged in business competition, the improper-means element
is satisfied by allegations showing that the interference
took the form of conduct that is “intrinsically
wrongful - that is, conduct which is itself capable of
forming the basis for liability of the actor, ” as well
as conduct that is illegal, in violation of professional
standards, achieved through violence or threats, arising from
misrepresentation or unfounded litigation, or via defamation.
Id. at 1197-98.
The revised sum of the allegations against Beacon Hill is as
. Beacon Hill is aware of the restrictions
Insight places on terminated or separated employees because
it has reviewed the subject agreements in the course of
discovery in other lawsuits and because the supervisor who
hired Ms. McDonald at Beacon Hill was formerly employed at
. Beacon Hill's CEO testified at his
deposition that it is unimportant whether a prospective
employee is subject to an employment agreement they would
violate by working for Beacon Hill.
. Beacon Hill is aware of Ms. McDonald's
obligations under the Separation Agreement.
. Beacon Hill has instructed Ms. McDonald
that she does not need to comply with such obligations.
. Beacon Hill waited until after Ms.
McDonald's employment ended at Insight before sending her
an offer letter despite finalizing the offer weeks prior.
See # 88-1 ¶¶ 72-79.
Court will allow Insight to reassert its claim for tortious
interference. Where the allegation that Beacon Hill told Ms.
McDonald that she need not comply was conclusory before, it
is now read in conjunction with factual allegations detailing
Beacon Hill's awareness and disregard of the Separation
Agreement. Awareness and disregard coupled with an
instruction to Ms. McDonald not to comply with the
Separation Agreement plausibly constitutes improper means.
The proposed amendments take Beacon Hill's alleged
conduct from the mere offer of a job to the employee of a
competitor, an act that is not improper on its own, to an
instruction to breach an agreement it was aware of. For ...