United States District Court, D. Colorado
TERRENCE M. WYLES, Plaintiff,
ALLEN ZACHARY SUSSMAN, LOEB & LOEB L.L.P., ALUMINAID INTERNATIONAL, A.G., WEST HILLS RESEARCH & DEVELOPMENT, INC. f/k/a Aluminaid, Inc., ALUMINAID PTE LTD a/k/a Advanced First Aid Research PTE LTD, CARL J. FREER, JAMES JOHN HUNT, ADAM FREER aka Adam Agerstam, JULIA FREER-AGERSTAM aka Julia Freer aka Julia Agerstam, DAVID ANDREW WARNOCK, ALEX ARENDT, JOE MARTEN, and THOMAS D. BRADY aka Tom Brady, Defendants.
ORDER on MOTIONS TO DISMISS
Brooke Jackson United States District Judge
Allen Z. Sussman and Loeb & Loeb, LLP (the “Loeb
defendants”) and Thomas D. Brady move to dismiss for
lack of personal jurisdiction pursuant to Fed.R.Civ.P.
12(b)(2). The Loeb defendants' motion is denied. Mr.
Brady's motion is granted.
M. Wyles is a Colorado attorney. According to his Amended
Complaint, in May 2012 he was hired to be the chief in-house
counsel for Aluminaid, Inc., a Delaware corporation which at
that time had its principal place of business in Snowmass
Village, Colorado. See ECF No. 27-11 (Aluminaid, Inc.
Periodic Report, filed with the Colorado Secretary of State
on January 17, 2013). Another Aluminaid company, Aluminaid
International, A.G., also had its principal place of business
in Colorado at that time. Wyles Aff., ECF No. 27-1,
Wyles alleges that after his engagement as in-house counsel
he discovered that defendant Carl Freer, the CEO of the
company, and other individuals were misappropriating or
embezzling corporate funds. However, his attempts to bring
attention to the misconduct were greeted with efforts to
intimidate and defame him, including among other things
accusations that he had engaged in sexual harassment of a
female employee. Ultimately his employment was terminated.
26, 2013 defendant West Hills Research & Development,
Inc., formerly known as Aluminaid, Inc., and Aluminaid
International, AG sued Mr. Wyles in state court in
California, alleging fraud and misappropriation of trade
secrets. By then Aluminaid had relocated its headquarters to
Mr. Wyles, on March 6, 2014, sued Aluminaid International,
A.G.; West Hills Research & Development, Aluminaid PTE
Ltd, Mr. Freer and others in the Arapahoe County, Colorado
District Court. See Complaint, ECF No. 15-1. He asserted
claims of (1) breach of contract, (2) violation of the
Colorado Wage Act, (3) libel and slander, (4) wrongful
termination, (5) interference with contract/prospective
economic advantage, (6) shareholder derivative action, (7)
fraudulent transfers, (8) abuse of process, and (9) joint
February 26, 2015 Mr. Wyles sued essentially the same group
of defendants in this district. Wyles v. Aluminaid
International, et al., No. 15-cv-00393-CMA-KMT. In
addition to the nine claims he was simultaneously prosecuting
in his state court case he asserted claims of
misrepresentation and negligence. See ECF No. 1 in No.
15-cv-00393-CMA-KMT. The court dismissed Mr. Wyles'
claims on grounds of improper claim splitting, but the Tenth
Circuit vacated the dismissal order and remanded for further
proceedings. Wyles v. Sussman, 661 Fed.Appx. 548
(2016) (unpublished). Nevertheless, the parties eventually
stipulated to the dismissal of the federal case without
prejudice. See ECF Nos. 61 and 62 in that case.
California lawsuit against Mr. Wyles was dismissed on October
27, 2016. That dismissal seems to have motivated Mr.
Wyles' filing of the present case on August 1, 2017. Mr.
Wyles again sued nearly the same group of defendants, adding
Joseph Marten and Thomas D. Brady. ECF No. 1. In his Amended
Complaint, now the operative complaint, Mr. Wyles asserts
three claims for relief: (1) malicious prosecution, (2)
outrageous conduct; and (3) joint liability. ECF No. 6.
Apparently Mr. Wyles had tried to amend his state court
complaint to add those claims but filed the present case when
he struck out in Arapahoe County.
as a hedge against this Court's ultimate decision on the
two pending jurisdictional motions, Mr. Wyles filed
essentially a carbon copy of the present suit in the United
States District Court for the Central District of California.
No. 2:17-cv-07722-DMG-SK. When informed of the filing of that
case this Court inquired whether he still planned to go
forward with the present case, since there are apparently no
personal jurisdiction issues to be faced in California. He
responded that he preferred to proceed in the present case
due to differences in the states' procedures for
substitute service of process. ECF No. 57.
Allen Z. Sussman is a corporate lawyer and a partner in the
Los Angeles office of the law firm, Loeb & Loeb, L.L.P.
Plaintiff alleges that he is, or at least at times pertinent
was, both the principal outside counsel for Aluminaid, its
Corporate Secretary, and a member of its board of directors.
Plaintiff claims that Mr. Sussman and his law firm, the
“Loeb defendants, ” participated in the
prosecution of the California case that was dismissed. Mr.
Sussman is a resident and citizen of the State of California.
Loeb & Loeb has no Colorado office. Mr. Sussman denies
that he is or was the Corporate Secretary of the defendant
corporations. In any event, the Loeb defendants deny that
they do business in Colorado or otherwise have sufficient
minimum contacts with Colorado to support personal
jurisdiction here, and they move to dismiss on that basis.
ECF No. 15.
claims that Thomas D. Brady, a retired captain in the Los
Angeles Fire Department, was a member of Aluminaid's
“Advisory Board” starting in 2012 and continuing
at least to 2015. Wyles Aff., ECF No. 27-1, at 2-3, ¶6.
He too, according to Mr. Wyles, was involved in the
prosecution of the California state court case. Mr. Brady has
moved to dismiss for lack of personal jurisdiction. ECF No.
motions have been fully briefed. The Court held an