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Pharmerica Corp. v. Sturgeon

United States District Court, W.D. Pennsylvania

April 4, 2017

PHARMERICA CORPORATION, Plaintiff,
v.
LENA STURGEON, ELLIOT GOTTLIEB, ADAM SHIMODA, and CONTINUARX LLC, Defendants.

          MEMORANDUM OPINION

          DAVID STEWART CERCONE United States District Judge

         I. Introduction

         Plaintiff, 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 Court.

         II. Statement of the Case

         PharMerica 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.

         Gottlieb 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.

         Shimoda 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.

         Millennium, 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 ¶ 13.

         Sturgeon 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.

         Shimoda 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.

         PharMerica 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.

         III. Legal Standard for Motion to Dismiss

         A. Rule 12(b)(2)

         Where a 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 defendant ...


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