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ASPEN Corp., Inc. v. Gorman

United States District Court, D. Colorado

March 20, 2019

ASPEN CORPORATIONS, INC., a Delaware corporation d/b/a Aspen Media, Plaintiff,
SCOTT GORMAN, and EDJSOURCE, LLC, a Florida limited liability company, Defendants.


          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 ...

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