United States District Court, D. Connecticut
ACUREN INSPECTION, INC., ROCKWOOD SERVICE CORPORATION, ROCKWOOD CANADA HOLDINGS LIMITED, and ACUREN GROUP, INC., Plaintiffs,
MICHAEL ABOYOUN, DWAYNE HENDERSON, and ANGUS BORLAND, Defendants.
RULING DENYING DEFENDANTS' MOTIONS TO
September 12, 2018, Acuren Inspection, Inc., Acuren Group,
Inc., Rockwood Canada Holdings Limited, and Rockwood Service
Corporation (collectively, "Plaintiffs" or
"Rockwood Controlled Group") commenced this action
against Michael Aboyoun, Dwayne Henderson, and Angus Borland
(collectively, "Defendants"). (Complaint [Doc. # 1]
at 1.) Defendants now move to dismiss on forum non
conveniens and international comity grounds, arguing
that this action should instead be litigated in Canada.
(Borland and Henderson Mot. to Dismiss [Doc. # 42];
Aboyoun Joinder in Mot. to Dismiss [Doc. # 43]) For the
reasons that follow, Defendants' Motions to Dismiss are
Service Corporation is a Delaware corporation with its
principal place of business in Connecticut. (Compl. ¶
5.) Its subsidiary, Acuren Inspection, Inc., is also
incorporated in Delaware and headquartered in Connecticut.
(Id. ¶ 2.) Rockwood Service Corporation is also
the parent to two Canadian companies, Acuren Group, Inc., and
Rockwood Canada Holdings Limited. The Rockwood Controlled
Group provides engineering and inspection services, including
"rope access work" that involves scaling and
rappelling tall structures in lieu of using scaffolding.
(Id. ¶¶ 13-15.)
are all former employees of the Rockwood Controlled Group.
(Id. ¶¶ 18, 22.) Aboyoun is a United
States citizen, who resides in New Jersey and who worked for
the American subsidiary Acuren Inspection, Inc. (Id.
¶ 6; see also Ex. B to Compl. [Doc. # 1-2]
at 2.) Borland and Henderson are Canadian citizens who worked
for the Canadian subsidiary Acuren Group. (Compl.
¶¶ 7, 8; Ex. 1 to Def.'s Mot. to Dismiss [Doc.
# 42-2] at 24, 38.)
to joining the Rockwood Controlled Group, Borland and
Henderson served as president and vice president,
respectively, of Remote Access Technology, Inc.
("RAT"), which also specializes in rope access
work. (Compl. ¶ 17.) In March 2010, RAT's ownership
transferred to the Rockwood Service Corporation in a share
purchase transaction. (Id.; see also Ex. A to Compl.
[Doc. # 1-1] at 4.) As a result, Borland and Henderson
resigned from RAT and accepted employment with the Rockwood
Controlled Group. (Compl. ¶ 18.) On March 25, 2019,
Borland and Henderson executed a "Non-Competition and
Non-Solicitation Agreement," which contained multiple
restrictive covenants. (Ex. A to Compl. at 2, 6-8.) These
covenants concerned detrimental interactions with businesses
similar to the Rockwood Controlled Group, and they extended
for two years after Borland and Henderson's respective
employment periods. (Id. at 6-8.) The
Non-Competition Agreement also contained a choice-of-law
provision specifying that "[t]his Agreement shall be
construed and enforced in accordance with, and the rights of
the parties hereto shall be governed by, the laws of the
state of Connecticut" and that the "parties hereto
hereby irrevocably consent to the jurisdiction of the state
and federal courts in Connecticut." (Id. at
12.) Borland and Henderson also signed separate employment
agreements in 2014 (Ex. 1 to Mot. to Dismiss [Doc. # 42-2]),
which contained similar restrictive covenants but were
governed by "the laws of the Province of Alberta,
[Canada]." (Id. at 32, 46.)
joined the Rockwood Controlled Group's successor to RAT
in 2011. (Compl. ¶ 22.) He reported to Borland, and
"initially worked primarily in Alberta."
(Id.) In 2013, Aboyoun "began working from his
home in New Jersey," while continuing to report to
Borland. (Id. ¶ 26.) In 2014, Aboyoun signed a
Confidentiality, Non-Solicitation, and Non-Competition
Agreement as a condition of his continued employment. (Compl.
¶ 27; see also Ex. B to Compl.) This agreement
also contained a provision establishing that the
"Agreement shall be construed and enforced in accordance
with the substantive laws of the State of Connecticut"
and that "Employee and Employer hereby consent to the
exclusive jurisdiction of the state and federal courts
located in Connecticut for the resolution of any dispute
regarding or arising out of this Agreement." (Ex. B to
Compl. at 6.) Aboyoun also "waive[d] any objection to
the laying of venue of any such action in the said court(s),
and further irrevocably waives any claims Employee may now or
hereafter have that any such action brought in said court(s)
has been brought in an inconvenient forum."
(Id.) While at Acuren Inspection, Inc., Aboyoun
oversaw the work of a Canadian employee, Patrick Ngoyi.
(Compl. ¶ 25; Ex. 1 to Mot. to Dismiss at 5.)
alleged actions that give rise to this action began as early
as 2014. Plaintiffs allege that Defendants "acted in
concert with each other" to "create competitive
companies, deceive Acuren, deprive it of business
opportunities, misappropriate its confidential and trade
secret information, and raid its highly skilled
employees." (Compl. ¶ 32.) Plaintiffs allege that
Aboyoun incorporated a competitive entity, TASC International
LLC ("TASC U.S."), in New Jersey (Compl. ¶ 35)
and that his assistant Patrick Ngoyi incorporated Total
Access Solutions Corporation ("TASC Canada") in
Alberta "using his wife's name, Loreen Jolie Kalonji
Ngoyi" (Id. ¶¶ 32, 41). Plaintiffs
further allege that "Henderson and Borland both were
aware of, and approved of," the creation of these new
entities, (id. ¶ 34.), and that all three
Defendants "conspired to violate their contractual and
fiduciary duties and harm Acuren's business
interests" by using confidential proprietary information
to their personal advantage, (id. ¶ 38.)
Plaintiffs assert that they learned of Defendants'
involvement with the TASC entities in 2017, when the Rockwood
Controlled Group lost a customer contract to TASC Canada.
(Id. ¶¶ 60, 63; see also Ex. 1 to
Mot. to Dismiss at 10, 19 (identifying customer as Imperial
Oil, Ltd., of Ontario, Canada).)
February 1, 2018, Acuren Group, Inc., acting as the sole
plaintiff, notified Ngoyi and TASC Canada that they were
being sued in the Court of the Queen's Bench of Alberta
("Canadian Litigation"). (Ex. 1 to Mot. to Dismiss
at 5.) The notice stated that Borland and Henderson
"actively participated" in the alleged misconduct,
but it did not name either as a defendant. (Id. at
5, 10.) The notice made no mention of Aboyoun.
Defendant's counsel represents that the Canadian
Litigation is pending. (Ex. 1 to Mot. to Dismiss at 2.)
September 12, 2018, Plaintiffs filed this action in the
District of Connecticut.
move to dismiss on two related grounds. First, they contend
that the forum non conveniens doctrine applies here.
(Def.'s Mot. to Dismiss at 1.) Second, they contend
international comity requires dismissal of the suit or, in
the alternative, a stay of at least six months to
"determine whether the Canadian Lawsuit will fairly
resolve Plaintiffs' claims." (Id. at 1-2.)
The Court will address each argument in turn.
Forum Non Conveniens
forum non conveniens doctrine is "a
discretionary device that permits a court in rare instances
to dismiss a claim even if the court is a permissible venue
with proper jurisdiction over the claim." Carey v.
Bayerische Hypo-Und Vereinsbank AG, 370 F.3d 234, 237
(2d Cir. 2004) (internal quotation marks omitted). When
exercising that discretion, "courts assess: (1) the
deference to be accorded the plaintiffs choice of forum; (2)
the adequacy of the alternative forum proposed by the
defendants; and (3) the balance between the private and
public interests implicated in the choice of forum."
Fasano v. Yu Yu, 921 F.3d 333, 335 (2d Cir. 2019).
defendant bears the burden of proof on the second and third
elements, as well as the "ultimate burden of
persuasion." Abdullahi v. Pfizer, Inc., 562
F.3d 163, 189 (2d Cir. 2009). "[U]nless the balance is
strongly in favor of the defendant, the plaintiffs choice of
forum should rarely be disturbed." Gulf Oil Corp. v.
Gilbert,330 U.S. 501, 508 (1947). An action should only
be dismissed on forum non conveniens grounds
"if the chosen forum is shown to be genuinely
inconvenient and the selected ...