United States District Court, E.D. Pennsylvania
SYNTHES, INC., et al.
Synthes, Inc., DePuy Orthopaedics, Inc., Synthes USA, LLC,
DePuy Spine, LLC, and DePuy Synthes Sales, Inc. bring this
diversity action against former employee Ty Gordon for breach
of a Confidentiality, Non-Solicitation, and Non-Competition
Agreement. Plaintiffs seek injunctive relief and damages, as
well as attorneys' fees and costs. Before the court is
the motion of defendant to dismiss plaintiffs' amended
complaint under Rules 12(b)(1) and 12(b)(2) of the Federal
Rules of Civil Procedure, or in the alternative, to transfer
venue under 28 U.S.C. § 1404(a).
Rule 12(b)(1), a court must grant a motion to dismiss if it
lacks subject matter jurisdiction to hear a claim. “A
motion to dismiss for want of standing is . . . properly
brought pursuant to Rule 12(b)(1), because standing is a
jurisdictional matter.” In re Schering Plough Corp.
Intron/Temodar Consumer Class Action, 678 F.3d 235, 243
(3d Cir. 2012) (quoting Ballentine v. United States,
486 F.3d 806, 810 (3d Cir. 2007)). In evaluating a Rule
12(b)(1) motion, a court must first determine whether the
movant presents a facial or factual attack. Id. In
reviewing a facial challenge, which contests the sufficiency
of the pleadings, “the court must only consider the
allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the
plaintiff.” Id. (quoting Gould Elec. Inc.
v. United States, 220 F.3d 169, 176 (3d Cir. 2000)). In
contrast, when considering a factual attack the court may
weigh and consider evidence outside the pleadings.
Constitution Party of Pa. v. Aichele, 757 F.3d 347,
358 (3d Cir. 2014). Because no answer to the amended
complaint has been filed, we construe defendant's motion
as a facial attack. Id.
12(b)(2) directs the court to dismiss a case when the court
lacks personal jurisdiction over the defendant. When
reviewing a motion to dismiss pursuant to Rule 12(b)(2), a
court must accept as true all allegations of jurisdictional
fact made by plaintiff and resolve all factual disputes in
plaintiff's favor. Metcalfe v. Renaissance Marine,
Inc., 566 F.3d 324, 330-31 (3d Cir. 2009). Once a
jurisdictional defense has been raised, the plaintiff bears
the burden of establishing the court's jurisdiction over
the defendant. Id.
first turn to the factual allegations as set forth in the
amended complaint. Plaintiffs are a group of affiliated
entities that design, manufacture, and sell medical devices,
including instrumentation and implants for use in orthopaedic
surgeries for broken bones, joint reconstruction and
replacement, and spinal and facial surgery. On or about
November 13, 2007, Synthes hired defendant as a territory
assistant in the Jacksonville, Florida area, with principal
responsibility for Synthes' trauma products. Gordon was
promoted to sales consultant on or about December 19, 2009.
time of his initial hiring in 2007, defendant executed a
Confidentiality, Non-Solicitation and Non-Competition
Agreement (“2007 Agreement”) with Synthes
(U.S.A.). Thereafter, defendant executed a second
Confidentiality, Non-Solicitation and Non-Competition
Agreement (“2009 Agreement”) in consideration of
his promotion to Sales Consultant. The counter-signatory to
that Agreement was Synthes USA Sales, LLC, which subsequently
assigned its rights under the contract to plaintiff DePuy
Synthes Sales, Inc.
the 2009 Agreement, Gordon was prohibited from using or
disclosing to third parties certain confidential information
of Synthes both during and after his employment. He also
agreed that he would not solicit, contact, or provide
services to several enumerated categories of current or
prospective customers of Synthes for a period of twelve
months following termination of his employment.
resigned from Synthes on or about May 29, 2017 to accept a
sales representative position with Stryker, a competitor of
Synthes. Plaintiffs allege that since at least June 2017,
defendant has violated the 2009 Agreement by contacting and
providing services to his former Synthes hospital accounts on
behalf of Stryker. On July 28, 2017, plaintiffs filed a
one-count complaint against defendant seeking, as noted
above, injunctive relief and damages for breach of contract.
Thereafter, plaintiffs filed a verified amended complaint
with substantially similar allegations to the original
complaint. Plaintiffs have also moved for a preliminary
injunction and for expedited discovery. In turn, defendant
filed this motion to dismiss the amended complaint.
first asserts that the amended complaint should be dismissed
for lack of subject matter jurisdiction under Rule 12(b)(1)
because plaintiffs lack standing to bring this action. The
gravamen of defendant's argument is that the only
plaintiff with rights to enforce the 2009 Agreement is DePuy
Synthes Sales, Inc., pursuant to the assignment of rights
from Synthes USA Sales, LLC. According to defendant, DePuy
Synthes Sales, Inc. lacks standing to bring this action
because it does not make or sell any products, and therefore
does not have any business with which defendant can compete.
assess defendant's arguments, we begin with the language
of the 2009 Agreement itself. That Agreement defines
“Synthes” broadly as:
Synthes USA Sales, LLC, its members, and its and their
parents, affiliates, subsidiaries, divisions, and related
companies or entities, and their respective predecessors,
successors and assigns, now existing or hereafter created,
including, but not limited to Synthes Inc., Synthes USA HQ,
Inc., Synthes USA Products, LLC, Synthes USA, LLC and ...