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Manning v. Flannery

January 6, 2010


The opinion of the court was delivered by: Buckwalter, S.J.


Currently pending before the Court is Defendants' Motion to Dismiss or Transfer for Lack of Venue. For the reasons stated below, the Defendants' Motion to Dismiss is denied, and their Motion to Transfer is granted.


Plaintiff's claim stems from the alleged tortious conduct of Defendants Thomas T. Flannery, Stacey Holland, and Boyden Global Executive Search*fn1 (collectively "Boyden Defendants") that led to Plaintiff's firing and inability to obtain future employment. (Compl. Intro.) Plaintiff, J. Steven Manning ("Manning"), entered into a written Executive Employment Agreement ("Employment Agreement") with Ardex, L.P., ("Ardex") a building materials company, on or about January 31, 2005. (Id. ¶ 9.) The Employment Agreement -- along with certain amendments -- provided that Plaintiff would serve as the President and Chief Executive Officer of Ardex through December 31, 2009. (Id.) Ardex utilized Boyden Defendants' executive and management search services in hiring Plaintiff as their CEO,and Plaintiff alleges that Boyden Defendants "were fully aware of the terms and conditions of the Employment Agreement." (Id. ¶ 10.) The Employment Agreement contained a non-compete clause, which would restrict Plaintiff from working for an Ardex competitor for a period of one year if Plaintiff were fired for cause. (Id. ¶ 13.)

A. Events Leading to the Firing of Plaintiff*fn2

In early October, 2007, Ardex engaged Boyden Defendants to conduct a search for a new Vice President of Operations for Ardex. (Id. ¶ 24.) A "Letter Agreement" sent to Plaintiff formalized the approach Boyden Defendants would take to conduct the employment search. (Id.) Additionally, Flannery and Holland informed Plaintiff that they would keep Plaintiff informed of the progress of their search. (Id.)

Plaintiff alleges that Boyden Defendants -- in the course of their search -- "engaged in a scheme and conspiracy to secretly undermine and poison the plaintiff's employment and employment prospects with Ardex, and his reputation, both personal and professional." (Id. ¶ 25.) In other words, Boyden Defendants intended "to undermine the [P]laintiff in his capacity as President of Ardex and to cause his firing." (Id. ¶ 27.) According to Plaintiff, the Boyden Defendants enacted this scheme by making defamatory statements to Dieter Gundlach, the "managing director" of Ardex parent corporation Ardex GmbH, and to Hugh Nevins, an attorney and Secretary of the Ardex Board of Directors, for "eventual dissemination to Dieter Gundlach." (Id. ¶¶ 23, 27.)*fn3 Boyden Defendants "were improperly motivated by, inter alia, personal animus against Manning and by a desire to insinuate themselves . . . to their financial benefit[] with Gundlach [and] at the expense of Ardex and [Plaintiff]." (Id. ¶ 28.) As a result of the Boyden Defendants' false statements, Gundlach decided to fire Plaintiff "with cause" on or about March 11, 2008 for purportedly interfering with Boyden Defendants efforts to hire a vice-president of operations for Ardex. (Id. ¶¶ 13, 28, 30.)

After firing Plaintiff pursuant to the Employment Agreement, Ardex insisted that the non-compete clause bound Plaintiff. (Id. ¶¶ 15, 16.) In turn, Plaintiff "was prevented from obtaining employment within the Eastern District of Pennsylvania as one or more prospective employers . . . would not hire [Plaintiff]" given the threat of litigation. (Id. ¶ 18.) Boyden Defendans, aware of the non-compete clause from having negotiated Plaintiff's Employment Agreement, "knew and planned that the Plaintiff, as a consequence of [Boyden] Defendants actions, would be unable to obtain employment within the Eastern District of Pennsylvania and that [Plaintiff] would be harmed thereby." (Id. ¶ 20.) Boyden Defendants thus intended for their actions to result in Ardex's termination of Plaintiff as well as Plaintiff's loss of earnings from Ardex and other prospective employers. (Id. ¶ 38.)

B. Boyden Defendants' Contacts with the Eastern District of Pennsylvania

Boyden, a multinational corporation with offices located throughout the world, is engaged primarily in conducting executive and management searches on behalf of other corporations. (Defs.' Mot. Dismiss, Intro.; Pl.'s Mem. Opp'n Defs.' Mot. Dismiss 7.) Boyden has no office in Philadelphia, or elsewhere in the Eastern District of Pennsylvania for that matter, but maintains an office in Pittsburgh, located in the Western District of Pennsylvania. (Defs.' Mot. Dismiss, Intro.) As represented on Boyden's website, the Pittsburgh office "serves the entire mid-Atlantic and Midwest regions" in collaboration with other Boyden offices. (Pl.'s Mem. Opp'n Defs.' Mot. Dismiss 7.) The Pittsburgh office's clients are located primarily in Western Pennsylvania, upstate New York, Ohio, and West Virginia. (Defs.' Mot. Dismiss § III.A.) Stacey Holland and Thomas Flannery, the two individual Defendants in this case, are based in Boyden's Pittsburgh office, and their office address is the only address Plaintiff has provided for them. (Compl. ¶¶ 2-3.)

Boyden Defendants submitted an Affidavit from Flannery addressing Boyden's contacts with the Eastern District. In his Affidavit, Flannery attests that "[t]he Pittsburgh office does not solicit business in the Eastern District, nor does it target advertisements to persons or companies within the Eastern District or obtain a substantial amount of its business, including gross revenue, from the Eastern District (less than 2% of gross revenues)." (Defs.' Mot. to Dismiss, Ex. A, Flannery Aff. ¶ 9.) Flannery further swears that "Boyden's Pittsburgh office has made approximately five interview trips to Philadelphia in the last year, a number that is consistent across most years, out of usually more than 400 interviews in any given year." (Id. ¶ 11.) Additionally, "Boyden's Pittsburgh office has one former client in Philadelphia, [for] which Boyden conducted a Director search for their board last year." (Id. ¶ 12.) Moreover, "Boyden's Pittsburgh office does not purposely direct its activities towards residents in Philadelphia/Eastern District[,]" nor does it have any "current clients, activities or business in the Eastern District[.]"

(Id. ¶¶ 6, 13.) Ardex, a Boyden client and Plaintiff's former employer, is also located in the Pittsburgh vicinity.

While nearly all communications and actions relating to Plaintiff's firing originated or were directed towards the Pittsburgh area, Plaintiff alleges that Boyden Defendants intended to and did cause harm to the Plaintiff in the Eastern District. (Compl. ¶ 20.) Specifically, Plaintiff alleges that Boyden Defendants knew of the non-compete clause and intended to bring about Plaintiff's firing, while utilizing the clause to prevent Plaintiff from obtaining new employment. (Id.)

Plaintiff also contends that Flannery and Holland "purposely made substantial contacts within [the Eastern District of Pennsylvania] by purporting to enter into a 'Joint Defense Agreement' with Ardex" in Plaintiff's prior action against Ardex in the Eastern District. (Pl.'s Mem. Opp'n Defs.' Mot. Dismiss 5.) Plaintiff alleges that this "Joint Defense Agreement" was a "ploy" that compromised Plaintiff's attempts to gather evidence in his previous employment dispute in this District against Ardex, and as such, Plaintiff contends that Boyden Defendants' actions give rise to proper venue in the Eastern District. (Compl. ¶ 6.)


Prior to the current action, Plaintiff filed with the Court a Complaint and a Motion for Preliminary Injunction against his former employer, Ardex, on April 11, 2008. See Complaint, Manning v. Ardex, No. 08-1746 (E.D. Pa. April 11, 2008). Ardex responded with a Motion to Dismiss, Compel Arbitration, and Transfer Venue on August 25, 2008. After receiving the parties' Motions, the Court issued a Memorandum and Order denying Ardex's Motion to Dismiss, Compel Arbitration and to Transfer Venue. See Manning v. Ardex, No. CIV.A.08- 1746, 2008 WL 2468690, at *1 (E.D. Pa. June 16, 2008). Manning and Ardex eventually reached a settlement resolving this dispute. Upon stipulation by the parties, the Court dismissed the case with prejudice on December 19, 2008.

Invoking diversity jurisdiction pursuant to 28 U.S.C. § 1332, Plaintiff filed the current Complaint against the Boyden Defendants on July 17, 2009. The Complaint sets forth the following claims: (1) intentional interference with existing contractual relationships; (2) intentional interference with existing business relationships; (3) intentional interference with prospective business relationships; (4) libel; (5) slander; (6) breach of fiduciary duty and/or duty arising pursuant to a confidential relationship; and (7), negligence. (Compl. ¶¶ 40-61.)

Boyden Defendants responded with a Motion to Dismiss Plaintiff's Complaint or in the Alternative, Transfer Venue on September 21, 2009. On October 08, 2009, Plaintiff filed his Response in Opposition. Boyden Defendants submitted their Reply Brief on October 20, 2009, followed by Plaintiff's Sur-Reply Brief on October 27, 2009. Subsequently, on December 15, 2009, Boyden Defendants filed a Sur-Reply Brief in Further ...

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