United States District Court, D. Colorado
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), ...