United States District Court, W.D. Pennsylvania
STEWART CERCONE United States District Judge
PharMerica Corporation (“PharMerica”) initiated
this action by Complaint alleging various claims against
Defendants, Elliot Gottlieb (“Gottlieb”), and
Adam Shimoda (“Shimoda”) (collectively
“Defendants”), arising out of their employment
with PharMerica. Gottlieb and Shimoda have moved to dismiss
PharMerica's Complaint based upon: (1) lack of personal
jurisdiction; (2) failure to state a claim upon which relief
may be granted; and (3) failure of service of process.
PharMerica has responded and the motion is now before the
Statement of the Case
is a Delaware corporation headquartered in Louisville,
Kentucky, and it provides institutional and hospital pharmacy
services throughout the United States. Cmplnt. ¶ 1.
Shimoda is a resident of Maryland and resides at 1491
Dockside Court, Frederick, Maryland 21701, and is a former
employee of PharMerica and Millennium Pharmacy Services, Inc.
(“Millennium”). Cmplnt. ¶ 3. Gottlieb
(“Gottlieb”) is a resident of Maryland and
resides at 11309 Hollowstone Drive, North Bethesda, Maryland
20852, and is a former employee of PharMerica and Millennium.
Cmplnt. ¶ 4. ContinuaRx LLC (“ContinuaRx”)
is a start-up long-term care pharmacy organized in Delaware,
with its principal place of business located at 7085 Samuel
Morse Drive, Columbia, Maryland 21046. Cmplnt. ¶ 4.
was hired by Millennium as a Regional Manager Consulting
Pharmacist on December 10, 2010. As part of his employment,
and/or continuation of employment with additional
compensation and/or benefits, with Millennium, Gottlieb
executed certain employment agreements including: (1)
Confidentiality, Copyright and other Intellectual Property
Assignment, and Restrictive Covenant Agreement dated April 1,
2013; and (2) Protection of Interest and Non-Disclosure
Agreement, dated June 5, 2013. Court's Findings of Fact
and Conclusions of Law, December 7, 2016, (“Findings
& Conclusions”) ¶ 5.
was hired by Millennium as a Pharmacy Technician on April 20,
2011. On August 19, 2014, Shimoda was promoted to an
Assistant General Manager, responsible for day-to-day
operations and workflow of Millennium's Columbia,
Maryland pharmacy, management and supervision of other
pharmacists and pharmacy technicians, customer service, and
reviewing and ensuring compliance with the standard operating
procedures. Findings & Conclusions ¶ 7. Shimoda
never signed an employment agreement with Millennium.
Findings & Conclusions ¶ 8.
a former competitor of PharMerica, was acquired by PharMerica
on September 26, 2014, by Stock Purchase Agreement. Findings
& Conclusions ¶ 2. Following PharMerica's
purchase of Millennium, Lena Sturgeon
(“Sturgeon”), one of the founders of Millennium,
continued to service Millennium customers as an employee of
PharMerica. Findings & Conclusions ¶ 3. Shimoda and
Gottlieb also accepted employment with PharMerica and
continued in the same roles they had previously held with
Millennium prior to the acquisition. Findings &
Conclusions ¶ 9. As part of his employment, Gottlieb
executed a Nondisclosure and Non-Solicitation Agreement with
PharMerica on December 11, 2014. Findings & Conclusions
¶ 10. Shimoda also executed a Nondisclosure and
Non-Solicitation Agreement as part of his employment with
PharMerica on December 15, 2014. Findings & Conclusions
ended her employment with PharMerica on May 15, 2015, and
became Chief Operating Officer of ContinuaRx, a start-up
long-term care pharmacy that will compete directly with
PharMerica for customers throughout Pennsylvania, Maryland,
Virginia, and Washington, D.C. Findings & Conclusions
¶¶ 3, 17 & 18. Sturgeon contacted Gottlieb in
or around June 2016 and asked him to join ContinuaRx as the
head Consultant Pharmacist. Gottlieb accepted the position,
resigned from PharMerica on August 4, 2016 and joined
ContinuaRx on September 12, 2016. Findings & Conclusions
¶ 19. When he began working for ContinuaRx, Gottlieb
worked from his home in Maryland. P-I Hearing Transcript, ECF
46 (“ECF 46”) p. 13.
was solicited by Sturgeon in early July, 2016 to join
ContinuaRx. Shimoda resigned from PharMerica on July 29, 2016
and joined ContinuaRx on August 1, 2016 as the Director of
Pharmacy Operations. Findings & Conclusions ¶ 25.
Shimoda will work from the pharmacy ContuaRx will build in
Maryland. ECF 46, p. 15. Gottlieb's and Shimoda's
roles at ContinuaRx are to be substantially similar to the
roles they held at PharMerica and Millennium. Findings &
Conclusions ¶¶ 19 & 26.
alleges that Gottlieb and Shimoda “agreed, or will
agree” to assist Sturgeon in forming ContinuaRX using
former Millennium or PharMerica employees, soliciting former
Millennium or PharMerica customers, and using
confidential/trade secret information of Millennium or
PharMerica. Cmplnt. ¶¶ 63 & 64.
Legal Standard for Motion to Dismiss
defendant challenges the exercise of personal jurisdiction
under Rule 12(b)(2) of the Federal Rules of Civil Procedure,
“plaintiff bears the burden of proving the facts
necessary to establish the minimum contacts the Constitution
requires.” Grand Entm't Group, LTD. v. Star
Media Sales, Inc., 988 F.2d 476, 482 (3d Cir. 1993).
Moreover, the plaintiff must prove, by a preponderance of the
evidence, that jurisdiction is proper. IMO Industries,
Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d. Cir. 1998).
In deciding a motion to dismiss for lack of personal
jurisdiction, the allegations of the complaint are taken as
true, Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287,
1302 (3d Cir. 1996), and disputed facts are construed in
favor of the plaintiff. Pinker v. Roche Holdings,
Ltd., 292 F.3d 361, 368 (3d Cir. 2002). A plaintiff,
however, may not rest solely on the pleadings to satisfy its
burden. Time Share Vacation Club v. Atlantic Resorts,
Ltd., 735 F.2d 61, 66 (3d Cir. 1984). Instead, a
plaintiff must sustain its burden of proof with sworn
affidavits or other competent evidence that demonstrates with
reasonable particularity a sufficient nexus between the