United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
Xinis United States District Judge
before the Court in this civil action is Defendants Richard
A. Harrison and ProTek Consulting, LLC's motion to
transfer or dismiss the case for improper venue. See
ECF No. 12. Also pending are Defendants John Bucy and Adam W.
Fishbein's motions to dismiss for failure to state a
claim under Federal Rules of Civil Procedure 8(a) and
12(b)(6). See ECF Nos. 10 & 11. The matter has
been fully briefed, and the Court now rules because no
hearing is necessary. See Loc. R. 105.6. For the
reasons below, Defendants' motions are DENIED.
Artech Consulting, LLC (“Artech”) is a limited
liability company headquartered in Morristown, New Jersey,
with an office in Rockville, Maryland. ECF No. 1 at ¶ 1.
All Artech LLC members are citizens of New Jersey. ECF No. 1
at ¶ 1. Defendants Richard A. Harrison
(“Harrison), John Bucy (“Bucy”), Adam W.
Fishbein (“Fishbein”) are citizens of Maryland
and former Artech employees now working at Defendant ProTek
Consulting, LLC (“ProTek”). ECF No. 1 at
¶¶ 3, 4, 5. ProTek is a Maryland limited liability
company headquartered in Maryland. ECF No. 1 at ¶ 2.
March 2011, Artech purchased the membership interests of a
Rockville, Maryland company, Edge Professional Services, LLC
(“Edge”). ECF No. 1 at ¶ 11. Prior to the
buyout, Edge was owned by Defendant Harrison, who
“worked closely” in Edge's senior management
with Defendant Bucy. ECF No. 1 at ¶¶ 11, 14. In
July 2014, Artech hired Harrison as Senior Vice President of
Sales and Operations for Artech. ECF No. 1 at ¶ 11. In
this role, Harrison oversaw the operations of Artech's
Rockville, Maryland office, and helped with hiring and
maintaining positive relationships with Artech employees. ECF
No. 1 at ¶ 11. At the time of his hiring, Harrison
signed an Employment Agreement with Artech which included a
“Non-Solicitation or Hire” clause. This clause
provided that should Artech and Harrison's employment
relationship end, Harrison could not solicit or employ Artech
employees for a 24-month “Post-Employment
Non-Solicitation Period.” ECF No. 1 at ¶ 12.
March 10, 2016, Harrison resigned from Artech. ECF No. 1 at
¶ 13. He then founded ProTek, where he serves as its
Executive Vice President. ECF No. 1 at ¶ 20-21. ProTek
is a direct competitor to Artech. ECF No. 1 at ¶ 21.
Since founding the company, Harrison has hired at least six
Artech employees to work at ProTek. ECF No. 1 at ¶¶
Bucy and Fishbein were formerly employed by Artech and now
work at ProTek. Bucy was hired by Artech in December 2015 and
served as its Managing Director for the Capital Region from
April 2016 through his resignation on March 31, 2017. ECF No.
1 at ¶¶ 15, 16. Before starting at Artech, Bucy
signed an Employment Agreement that included a
“NonCompetition” clause prohibiting Bucy from
working with any Artech competitor within a 50 mile radius of
Artech for at least 24 months after separation from the
company. ECF No. 1 at ¶ 25; see also ECF No.
1-3. Following Bucy's resignation from Artech, Bucy began
working as a Vice President for ProTek. ECF No. 1 at ¶
26. In this new position, Bucy “directly or
indirectly” solicits business from one or more of
Artech's customers. ECF No. 1 at ¶ 26.
Fishbein worked out of Artech's Rockville, Maryland
office as a Technical Recruiter from May 5, 2014 through his
resignation on February 18, 2017. While at Artech, Fishbein
identified and developed new Artech customers and supported
existing clients. Similarly to Defendant Bucy, Fishbein's
Employment Agreement with Artech included a non-compete
clause which prohibited employment with an Artech competitor
for a period of 24 months, within a radius of 30 miles of
Artech's Rockville, Maryland office. ECF No. 1 at ¶
27. Following his resignation, Fishbein joined ProTek as a
Senior Recruiter. ECF No. 20 at 3.
November 21, 2017, Artech filed suit against Defendants for
breach of contract, tortious interference, and unfair
competition, seeking both monetary and injunctive relief.
See ECF No. 1. On December 22, 2017, Bucy and
Fishbein moved to dismiss the action on the grounds that
Plaintiff failed to state a claim, while ProTek and Harrison
moved to dismiss or transfer the action, seeking to enforce a
forum selection clause included only in Harrison's
employment agreement. See ECF Nos. 10, 11, 12. The
Court will first address Harrison and ProTek's motion.
Defendants Harrison and ProTek's Motion to Transfer or
sues Harrison for breach of contract (Count I) and Harrison
and ProTek for tortious interference with contract (Count
II), and unfair competition (Count V). Harrison and ProTek
seek transfer or dismissal of these claims under 28 U.S.C.
§ 1404(a) and Federal Rule of Civil Procedure 12(b)(3).
See ECF No. 12. Harrison and ProTek argue that the
forum selection clause in Harrison's Employment Agreement
compels such result because the clause specifically sets out
that any action arising from a breach of the Employment
Agreement must be brought in Washington state. ECF No. 12 at
1; ECF No. 13-1 at 14. The clause more particularly states
[T]he parties agree irrevocably to submit to the exclusive
jurisdiction of the federal and state courts of the State of
Washington, for the purpose of any suit, action, or other
proceeding brought by any party arising out of any breach of
any of the provisions of this Agreement . . . .
ECF Nos. 1-2 & 12 at 4.
preliminary matter, the Court must first determine what law
applies to the disputed forum selection clause. See Koch
v. America Online, Inc., 139 F.Supp.2d 690, 692 (D. Md.
2000). Harrison's Employment Agreement provides that it
“shall be governed and construed in accordance with the
laws of the State of New Jersey, ” and Artech urges the
Court to apply New Jersey law. ECF No. 13-1 at 14.
Application of a forum selection clause, however, is a
procedural matter, and a “federal court sitting in
diversity jurisdiction will apply federal law, ” even
where the contract includes a valid choice of law provision.
See White Oak Power Constructors v. Alstom Power,
Inc., No. CB-17-1437, 2017 WL 5158507, at *3 (D. Md.
Nov. 7, 2017); Albemarle Corp. v. AstraZeneca UK