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Optimize Courier, LLC v. Ally

United States District Court, M.D. Pennsylvania

September 18, 2019

OPTIMIZE COURIER, LLC, Plaintiff,
v.
NICHOL ALLY and EASYFLYERS USA LOGISTICS INCORPORATED, Defendants.

          MEMORANDUM

          A. Richard Caputo United States District Judge

         Presently 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. § 1404(a).

         I. Background

         Optimize Courier, LLC (“Optimize”) is engaged in the business of “worldwide coordination and transportation of time critical expedited and emergency logistics.” (Compl., ¶ 7).[1] 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).

         Ally 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, 6).[2] 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).

         While 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).

         Kingren, 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 ¶¶ 11-13).

         Ally 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).

         Optimize 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).

         Based 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. (See id.).

         On July 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).[3] 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).

         After 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 disposition.

         II. Discussion

         Defendants, 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 ...


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