United States District Court, D. Colorado
ASPEN CORPORATIONS, INC., a Delaware corporation d/b/a Aspen Media, Plaintiff,
v.
SCOTT GORMAN, and EDJSOURCE, LLC, a Florida limited liability company, Defendants.
ORDER GRANTING IN PART DEFENDANTS' MOTION TO
DISMISS OR TRANSFER VENUE
CHRISTINE M. ARGUELLO United States District Judge.
This
matter is before the Court on Defendants Scott Gorman's
and EDJSource, LLC's (collectively,
“Defendants”) Motion to Dismiss First Amended
Complaint or in the Alternative Transfer Venue to the
Southern District of Florida (the “Motion”).
(Doc. # 23). The Court has reviewed the Motion and related
filings, as well as the applicable law. For the reasons
described herein, the Court grants in part Defendants'
Motion and transfers this action to the United States
District Court for the Southern District of Florida.
I.
BACKGROUND
This
dispute arises from an employment relationship between
Plaintiff Aspen Corporation, Inc. and Defendant Gorman. (Doc.
# 19 at 1.)
Plaintiff
purports to be a Delaware corporation “with its
principal place of business at . . . Lafayette,
Colorado.” (Id. at 2.) Plaintiff engages in
business process outsourcing (“BPO”) and
marketing and research for business-to-business and
business-to-customer services. (Id.) It maintains
three call centers: “its headquarters in Lafayette
Colorado; Nashville, Tennessee; and India.”
(Id. at 5.)
Defendant
Gorman is a resident of Florida. (Id. at 2.)
In
October 2016, Plaintiff purchased assets of two companies
owned in part and “controlled” by Defendant
Gorman. (Id. at 3.)
Immediately
following Plaintiff's asset purchases from Gorman's
two companies, Plaintiff and Gorman executed an Employment
Agreement pursuant to which Gorman was to become the CEO of
Plaintiff for at least twelve months. (Id. at 4-5;
Doc. # 19-1.) The Employment Agreement contained
nondisclosure, non-competition, and non-solicitation
provisions:
1. (b) Devotion to Duties. While you are employed,
you will use your best efforts, skills and abilities to
perform all duties assigned to you and to devote your full
business time and energies to the business and affairs of the
Company [Plaintiff]. While you are employed, you will not
undertake any other employment from any person or entity
without the prior written consent of the Company. . . .
5. Non-Competition; Non-Solicitation. During the
period in which you are employed hereunder and for a period
of two years following the termination of your employment . .
. you will not, without the prior written consent of the
Company for yourself or on behalf of any other person or
entity, directly or indirectly, own, manage, operate or
control, or be concerned, connected or employed by, or
otherwise associate in any manner with, any business which is
competitive with the business of the Company within a 50 mile
radius of any of the current or future locations . . .; or
either individually or on behalf of or through any third
party, directly or indirectly, solicit, or attempt to
solicit, for the purpose of competing with the Company, any
customers or prospective customer of the Company, or any
employee of the Company.
6. Protected Information. You will at all times . .
. maintain in confidence and will not, without the prior
written consent of the Company, use, except in the course of
performance of your duties for the Company, disclose or give
to others any Confidential Information.
(Doc. # 19-1 at 2-4.) Plaintiff alleges that based on this
Employment Agreement, it “expended time and resources
putting [Defendant Gorman] in position as its CEO, Vice
President, Secretary and Treasurer” and
“continually updated” Defendant Gorman “on
products, suppliers, pricing, profit margins, and customer
needs related to all of [its] business.” (Doc. # 19 at
5.) During his employ, Defendant Gorman “operated
remotely from Florida” but visited Colorado at least
four times in connection with his employment. (Id.;
Doc. # 23-1 at 2.)
On
April 1, 2017, Plaintiff and Defendant Gorman executed an
Addendum to the Employment Agreement providing, in relevant
part:
3. Devotion to Duties. The Company will recognize
and allow [Defendant Gorman], for the remainder of the
Agreement, to entertain conducting paid services to other
organizations and not have to be responsible for Devotion of
Duties as specified in Section 1 (d) in the Employment
Agreement “Devotion to Duties”. The Executive
will give priority to his duties within the Employment
Agreement above those he may conduct with outside parties.
(Doc. # 19 at 6; Doc. # 19-2.) Plaintiff states that the
Addendum did not give Defendant Gorman “permission to
set up a competitor or to usurp [its] corporate
opportunities.” (Doc. # 19 at 6.) Rather, in its view,
Defendant “Gorman deceived [Plaintiff] into believing
that he was going to look at opportunities that did not
compete with Aspen.” (Id.)
Plaintiff
alleges that on or about May 11, 2017, Defendant EDJSource
was incorporated in Cooper City, Florida, and has since been
“in the business of at least BPO, and possibly
more” and “has a BPO call center.” (Doc. #
19 at 5-6.) According to Plaintiff, Defendant Gorman has been
crucial to Defendant EDJSource's incorporation and
business. (Id.) It alleges that “[o]ne of the
Managing Members of EDJSource is Gorman Consulting Group,
Inc.” and that Defendant Gorman is the President and
CEO of the Gorman Consulting Group, with his wife serving as
Treasurer. (Id. at 6.) Plaintiff observes that the
Gorman and the Gorman Consulting Group maintain the same
address and that this address, in addition to Defendant
EDJSource's ...