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Acuren Inspection, Inc. v. Aboyoun

United States District Court, D. Connecticut

August 23, 2019

ACUREN INSPECTION, INC., ROCKWOOD SERVICE CORPORATION, ROCKWOOD CANADA HOLDINGS LIMITED, and ACUREN GROUP, INC., Plaintiffs,
v.
MICHAEL ABOYOUN, DWAYNE HENDERSON, and ANGUS BORLAND, Defendants.

          RULING DENYING DEFENDANTS' MOTIONS TO DISMISS

         On 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 denied.

         I. Background

         Rockwood Service Corporation is a Delaware corporation with its principal place of business in Connecticut.[1] (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.)

         Defendants 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.)

         Prior 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.)

         Aboyoun 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.)

         The 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).)

         On 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.)

         On September 12, 2018, Plaintiffs filed this action in the District of Connecticut.

         II. Discussion

         Defendants 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.

         A. Forum Non Conveniens

         The 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).

         The 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 ...


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