Vista Partners, Inc. v. Brainscope Co., Inc.

          ORDER ADOPTING IN PART THE RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE S. KATO CREWS

          CHRISTINE M. ARGUELLO JUDGE

         This matter is before the Court on review of the Recommendation by United States Magistrate Judge S. Kato Crews (Doc. # 68), wherein he recommends that this Court grant Defendant BrainScope Company, Inc.'s Motion to Transfer Pursuant to 28 U.S.C. § 1404(a) (Doc. # 24). On April 25, 2019, Plaintiff Vista Partners, Inc. filed an Objection to the Recommendation. (Doc. # 73.) On May 1, 2019, Defendant responded to Plaintiff's Objection. (Doc. # 76.) For the following reasons, Plaintiff's objections are overruled. The Court adopts in part the Recommendation.

         I. BACKGROUND

         A. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Magistrate Judge Crews provided a thorough recitation of the factual and procedural background in this case. The Recommendation is incorporated herein by reference, see 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b), and the facts will be repeated only to the extent necessary to address Plaintiff's objections.

         On January 15, 2019, Plaintiff initiated this action against Defendant and asserted nine claims for relief, all of which either relate to or arise out of certain agreements between the parties. (Doc. # 1 at 19-33.) Plaintiff alleged that in November 2014, it executed a confidentiality agreement with Defendant to evaluate a potential business relationship (“Confidentiality Agreement”). (Doc. # 1 at ¶ 28.) The Confidentiality Agreement provided:

All actions arising under this Agreement shall be filed and maintained only in a state or federal court sitting in the State of Maryland, except that Recipient may enforce a judgment or order in any court of competent jurisdiction. The parties hereby consent to and waive any objection to the personal jurisdiction of, and venue in, such courts.

(Doc. # 1-1 at 2, ¶ 9.)

         On January 8, 2015, the parties then executed an agreement which governed the parties' working business relationship (“Collaboration Agreement”). (Doc. # 1 at ¶¶ 34- 36.) Germane to the Recommendation, the Collaboration Agreement provided:

The Parties agree that any litigation between them may only be brought in courts located within Maryland, and each Party consents to the jurisdiction of those courts. However, either Party may bring an action in any court of proper jurisdiction for purposes of seeking an injunction to stop or prevent a breach of this Contract by the other Party.

(Doc. # 1-2 at 21, ¶ (e) (emphasis added).)

         Thereafter in October 2015, the parties executed another confidentiality agreement to evaluate “a potential business combination” (“Second Confidentiality Agreement”) which superseded the Confidentiality Agreement. (Doc. # 1 at ¶ 59; Doc. # 1-3 at ¶ 13.) Pertinent to the Recommendation, the Second Confidentiality Agreement provided:

This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without giving effect to the choice of law principles of any jurisdiction to the contrary, and all actions arising under this Agreement shall be filed and maintained only in a state or federal court sitting in the State of Maryland, in the event that BrainScope [Defendant] seeks to enforce the Company's obligations and BrainScope's rights hereunder.

This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without giving effect to the choice of law principles of any jurisdiction to the contrary, and all actions arising under this Agreement shall be filed and maintained only in a state or federal court sitting in Denver, Colorado, in the event that the Company [Plaintiff] seeks to enforce BrainScope's obligations and the Company's rights hereunder.

The parties hereby consent to and waive any objection to the personal jurisdiction of, and venue in, such courts.

(Doc. # 1-3 at 2, ¶ 9.)

         Importantly, the parties clarified that the Second Confidentiality Agreement did not “terminate or supersede the confidentiality obligations of the parties under that certain Collaboration Agreement dated January 8, 2015” and that the “[t]he confidentiality provisions of the Collaboration Agreement shall remain in effect notwithstanding the execution of this Agreement and the parties' interaction hereunder.” (Doc. # 1-3 at 3, ¶ 13.)

         In the Complaint, Plaintiff asserts one claim related to the Confidentiality and Collaboration Agreements (Claim One) (Doc. # 1 at ¶¶ 90-99), five claims related to the Collaboration Agreement (Claims Two, Three, Four, Five, and Nine) (Doc. # 1 at ¶¶ 100-146), one tort claim related to the Confidentiality and Collaboration Agreements (Claim Eight) (Doc. # 1 at ¶¶ 163-168), one tort claim arguably unrelated to the Confidentiality and Collaboration Agreements (Claim Six) (Doc. # 1 at ¶¶ 147-153), ...