United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
before me is a Motion to Dismiss (Doc. 13) filed by
Defendants Nichol Ally (“Ally”) and Easyflyers
USA Logistics Incorporated (“Easyflyers”)
(collectively, where appropriate, “Defendants”).
Defendants seek dismissal of this action pursuant to Federal
Rule of Civil Procedure 12(b)(2), 12(b)(3), and 12(b)(6).
Alternatively, Defendants request that the case be
transferred to the United States District Court for the
Eastern District of New York. Because the balance of relevant
private and public interest factors weigh strongly in favor
of transfer, the motion will be granted in part and the case
will be transferred to the United States District Court for
the Eastern District of New York pursuant to 28 U.S.C. §
Courier, LLC (“Optimize”) is engaged in the
business of “worldwide coordination and transportation
of time critical expedited and emergency logistics.”
(Compl., ¶ 7). Ally was employed as Optimize’s
Director of Operations from October 2016 until he resigned in
February 2019. (See id. at ¶ 3). In that role,
Ally had complete control of operations, the oversight of
shipments, and was the primary contact for Optimize’s
top accounts. (See id. at ¶ 16).
and Artie Kingren (“Kingren”), Optimize’s
Manager, first met to discuss the Director of Operations
position on August 30, 2016 in Stroudsburg, Monroe County,
Pennsylvania. (See Kingren Aff., ¶¶ 1,
On or about October 1, 2016, Kingren electronically sent Ally
a copy of an employment agreement (the
“Agreement”). (See id. at ¶ 5;
see also Compl., Ex. “A”). While Kingren
states that the Agreement was electronically returned in
October 2016 to Optimize’s office in Monroe County,
(see Kingren Aff., ¶ 7), Ally indicates, to the
best of his recollection, that the Agreement was signed in
February 2018 at Optimize’s New York office while
Kingren was present. (See Second Ally Aff., ¶
13). The Agreement attached to the Complaint indicates that
Ally’s employment commenced on October 1, 2016, but it
is signed and dated by Ally and Kingren in February 2018.
(See Compl., Ex. “A”). The Agreement
provides that Ally will “be working from the
Pennsylvania office, with the ability to work from home from
time to time with Presidents approval. This location may
change in the future.” (Id.). According to
Ally, however, Kingren advised him before his employment
commenced that he would work in New York -either out of
Ally’s home or at the Optimize office near JFK airport.
(See Second Ally Aff., ¶ 7).
employed by Optimize, Ally emphasizes that he never worked in
Pennsylvania. (See First Ally Aff., ¶ 10).
Instead, he worked almost exclusively from the Optimize
office in Jamaica, New York. (See id. at ¶ 17).
To that effect, Ally notes that he was never at
Optimize’s office in Pennsylvania. (See id. at
¶ 18). He also swears that the operations department he
oversaw was located in Honduras, that none of the clients he
served were based in Pennsylvania, and he never solicited any
clients or prospective clients in Pennsylvania. (See
id. at ¶¶ 15-16, 19).
in response, declares that Ally at all times reported
directly to him “at the Pennsylvania offices of
Optimize,” and that Ally “communicated with the
Pennsylvania offices of Optimize [by video skype] over 2,000
times during the course of his employment.” (Kingren
Aff., ¶¶ 8-9). Ally sent “thousands of
electronic communications to Pennsylvania” during the
course of his Optimize employment according to Kingren.
(Id. at ¶ 10). Ally also received all of his
compensation during his employment from funds drawn on a bank
in Monroe County, Pennsylvania, and the proceeds of all
transactions generated by Ally were deposited into accounts
at that bank as well. (See id. at ¶¶
replies that during his Optimize employment he sent emails to
a distribution list containing dozens of recipients, most of
which were located outside of Pennsylvania. (See
Second Ally Aff., ¶¶ 2-3). The operations
department he oversaw that received those emails was located
in Honduras. (See id. at ¶ 4). Kingren also
received the same emails. (See id. at ¶ 5).
Ally asserts that during his employment with Optimize,
Kingren spent the majority of his time in Florida, and when
he worked in Pennsylvania, he worked from his home office.
(See id. at ¶¶ 6, 8). During his
employment, Ally states that two administrative employees
worked for Optimize in Pennsylvania, but both worked out of
their personal homes and not a formal office. (See
id. at ¶ 9). Optimize, says Ally, did not have an
office in Pennsylvania during his employment besides those
two employees’ homes. (See id. at ¶ 10).
And, Optimize utilized GoDaddy computer servers that were not
located in Pennsylvania. (See id. at ¶ 11).
Finally, Ally avers that the document identified in the
Complaint that he allegedly misappropriated, the December
2018 Gross Margin Report, was created by an employee based in
Phoenix, Arizona. (See id. at ¶ 12).
alleges in the Complaint that prior to Ally’s
resignation from employment, he formed Easyflyers, now a
competitor of Optimize, with the assistance of Easy Flyers
s.r.o., a customer and European service partner of Optimize.
(See Compl., ¶¶ 8-10, 28). Easyflyers is a
New York corporation with a principal place of business in
New York. (See First Ally Aff., ¶ 4). Ally is
the President of Easyflyers, and its address is the home
address of an Optimize vendor that has a non-solicitation
agreement with Optimize. (See Compl., ¶¶
5-6). While he was still working for Optimize, Ally solicited
Optimize Senior Account Manager John Nelson to become
Easyflyers Key Accounts Director. (See id. at
¶¶ 32-33). Ally was aware that Nelson had an
employment contract with Optimize. (See id. at
¶ 34). Ally is also claimed to have taken with him a
Gross Margin Report containing confidential information,
including sales, costs, and margins. (See id. at
¶ 29). Despite demand, Ally has refused to return this
and other documents to Optimize. (See id. at ¶
30). Additionally, he is alleged to have interfered with
Optimize’s business and solicited customers and
prospective customers, all purportedly in violation of the
Agreement. (See id. at ¶ 35).
on the foregoing, Optimize commenced litigation against Ally
and Easyflyers by way of a ten-Count Complaint filed in the
Court of Common Pleas of Monroe County, Pennsylvania on or
about June 17, 2019. (See Compl.,
generally). The same day, Optimize filed a petition
for preliminary injunction in state court. (See Doc.
1, Ex. “A”). The state court directed Defendants
to respond to the petition by July 9, 2018, and also
scheduled a preliminary injunction hearing for July 19, 2019.
8, 2019, Defendants removed the action to this Court based on
diversity of citizenship pursuant to 28 U.S.C. § 1332.
(See Doc. 1, generally). Ten days later,
Defendants filed the instant motion to dismiss for lack of
personal jurisdiction, improper venue, and failure to state a
claim. (See Doc. 13,
generally). Optimize filed its brief in opposition to
the motion to dismiss on August 1, 2019. (See Doc.
16, generally). Defendants replied to
Optimize’s opposition on August 15, 2019. (See
Doc. 17, generally).
review of the parties’ submissions, I directed Optimize
to submit a brief addressing “why the public and
private interests do not support a transfer of this action to
the United States District Court for the Eastern District of
New York pursuant to 28 U.S.C. § 1404(a).” (Doc.
18, ¶ 1). Optimize timely complied with that Order and
submitted its brief on September 5, 2019. (See Doc.
19, generally). Defendants responded to
Optimize’s supplemental brief on September 12, 2019.
(See Doc. 20, generally). Defendants’
motion has thus been fully briefed, so it is ripe for
as stated, seek dismissal of this action pursuant to Federal
Rule of Civil Procedure 12(b)(2), 12(b)(3), and 12(b)(6).
Alternatively, they request that the action be transferred to
the Eastern District of New York under ...