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CentiMark Corp. v. Highland Commercial Roofing

November 4, 2009


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently before the Court is the MOTION TO DISMISS PLAINTIFF'S COMPLAINT, with brief in support, filed by Defendant Highland Commercial Roofing, LLC (Document Nos. 14 and 16), the MEMORANDUM OF LAW IN OPPOSITION filed by Plaintiff, CentiMark Corporation (Document No. 21), and the REPLY filed by Highland Commercial Roofing, LLC (Document No. 22). For the reasons that follow, the Motion will be granted for lack of jurisdiction.


Plaintiff, a Pennsylvania corporation, initiated this diversity lawsuit on September 14, 2009 by the filing of a six-count complaint against Highland Commercial Roofing, LLC, an Arizona Limited Liability Company, and Erik Robert Elle, an individual believed to be a citizen of the State of Arizona. Plaintiff seeks relief under the following causes of action:

Count I - Breach of Contract against Erik Robert Elle only;

Count II - Violations of Pennsylvania Uniform Trace Secrets Act against both Defendants;

Count III - Tortious Interference with Contract and with Existing and Prospective Business Relations against both Defendants;

Count IV - Tortious Interference with Contractual Relations against Highland Commercial Roofing only;

Count V - Unfair Competition against both Defendants; and Count VI - Breach of Fiduciary Duty / Duty of Loyalty against Erik Robert Elle only. Plaintiff, CentiMark Corporation ("CentiMark") markets, sells, installs, and services roofs and roofing systems throughout North America to commercial and industrial customers. CentiMark maintains its confidential trade secret and proprietary customer information in electronic databases in Pennsylvania and makes such information available to its sales force via the internet and a custom-designed extranet. See Declaration of Greg Wilson ("Wilson Aff."), at ¶¶ 7, 9.

Erik Robert Elle ("Elle") was employed by CentiMark from August of 2006 until his resignation in June of 2009. Elle's employment with CentiMark was contingent upon him signing an employment agreement (the "Agreement") with CentiMark which prohibited him from using or disclosing CentiMark's trade secrets and confidential information. The Agreement also prohibits Elle from working for a competitor of CentiMark's in his former territory for two (2) years following his termination of employment with CentiMark. Additionally, the Agreement provides that Pennsylvania law would govern the Agreement without giving effect to the principles of conflicts of law. Elle also irrevocably submitted to the personal jurisdiction of the United States District Court for the Western District of Pennsylvania or the Court of Common Pleas of Allegheny County, Pennsylvania, and irrevocably waived any objection to venue for actions brought in those courts.

Elle accepted the offer of employment and signed the Agreement on August 10, 2006. Initially, Elle was an Associate Project Manager, but was promoted to Senior Project Manager in April of 2008. His territory during this time included almost all of New Mexico, as well as portions of the Phoenix metropolitan area. In December of 2008, Elle was assigned a new territory, which included the entire state of Arizona and portions of New Mexico.

On June 23, 2009, Elle "unexpectedly advised CentiMark that he was resigning from the company" effective immediately. Complaint at ¶ 53. After Elle resigned, CentiMark became aware that Elle had accepted a position with Highland Commercial Roofing, LLC ("Highland"), a competitor of CentiMark's in the Phoenix metropolitan area for the provision of roofing services. CentiMark contends that Elle has solicited at least one CentiMark customer that he formerly called upon while he was employed by CentiMark.

CentiMark notified Elle of his alleged violation of his non-competition obligation under the Agreement by way of an overnight letter sent July 24, 2009. On that same day, CentiMark also sent Highland a "cease and desist" letter which advised Highland that Elle was bound by the non-competition obligations contained in the Agreement.

CentiMark argues that despite being apprised of Elle's obligations under the terms of his Agreement, Highland has continued to employ him ...

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