United States District Court, S.D. Indiana, Indianapolis Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
COMMISSIONING AGENTS, INC, Plaintiff: Christopher J. Bayh,
BARNES - THORNBURG LLP (Indianapolis), Indianapolis, IN; T.
Joseph Wendt, BARNES - THORNBURG LLP (Indianapolis),
ROBERT G LONG, Individually, Defendant: Arend J. Abel,
TaKeena Monette Thompson, Michael Wesley McBride, COHEN -
MALAD LLP, Indianapolis, IN.
HUGH GENERAL MANAGEMENT, LLC, doing business as HUGHCX, doing
business as HUGHGM, HUGHCX, LLC, doing business as HUGHGM,
doing business as HUGH GENERAL MANAGEMENT, Defendants: Joshua
B. Fleming, Michael A. Rogers, QUARLES - BRADY LLP
(Indianapolis), Indianapolis, IN.
MISSION CRITICAL COMMISSIONING, LLC, doing business as HUGH
GENERAL MANAGEMENT, doing business as HUGHCX, doing business
as HUGHGM, Defendant: Arend J. Abel, TaKeena Monette
Thompson, Michael Wesley McBride, COHEN - MALAD LLP,
ON MOTIONS TO DISMISS
WALTON PRATT, United States District Judge.
matter is before the Court on Defendants, Robert G. Long
(" Mr. Long" ) and Mission Critical Commissioning
LLC.'s (" MMC" ) Renewed Motion to Dismiss for
Lack of Personal Jurisdiction (Filing No. 30) and Defendants,
Hugh General Management, LLC.'s (" HughGM" )
and HughCx, LLC.'s (" HughCx" ) Motion to
Dismiss for Lack of Personal Jurisdiction and Alternative
Joinder in Motion to Transfer Venue (Filing No. 27)
(collectively, the " Defendants" ). Plaintiff,
Commissioning Agents, Inc. (" CAI" ) is a business
that provides commissioning services. According to CAI, while
employed for its business, Mr. Long lied to, defrauded, and
stole from CAI for the benefit of himself and CAI's
competitors. Specifically, CAI alleges that Mr. Long stole
proprietary information and used it on behalf of a
competitor, HughGM, worked simultaneously for HughGM without
CAI's knowledge, and used CAI's proprietary
information to steal CAI's business for HughGM's
benefit. CAI further alleges that HughGM was aware of Mr.
Long's double-dealing and either actively encouraged it
or deliberately turned a blind-eye to it; and that Mr. Long
falsified timesheets and expense reports that he submitted to
CAI, resulting in CAI paying Mr. Long unearned wages and
unjustified reimbursements. In this lawsuit, CAI brings an
array of claims against the Defendants, including: breach of
contract and breach of fiduciary duties, actual and
constructive fraud, tortious interference with business
relationship, tortious and criminal conversion, theft and
receiving stolen property, unjust enrichment,
misappropriation of trade secrets, violations of the federal
Racketeer Influenced and Corrupt Organizations Act ("
RICO" ) and Indiana's Corrupt Business Influence
Act. The Defendants seek dismissal of all claims pursuant to
Fed.R.Civ.P. 12(b)(2) based on lack of personal jurisdiction.
For the reasons stated below, the Defendants' Motions to
Dismiss are DENIED.
Rule of Civil Procedure 12(b)(2) requires dismissal of a
claim where personal jurisdiction is lacking. When a
defendant moves to dismiss under Rule 12(b)(2), the plaintiff
bears the burden of demonstrating the existence of
jurisdiction. Purdue Research Found. v.
Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.
2003); RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d
1272, 1276 (7th Cir. 1997); Wine & Canvas Dev., LLC v.
Weisser, 886 F.Supp.2d 930, 937 (S.D. Ind. 2012) (J.
the court determines personal jurisdiction based only on
reference to submissions of written materials, rather than
based on evidence submitted at a hearing, a plaintiff simply
needs to make a prima facie case of personal
Purdue Research Found., 338 F.3d at 782; Wine &
Canvas Dev., LLC, 886 F.Supp.2d at 937. In determining
whether the plaintiff has met the prima facie
standard, the plaintiff is entitled to a favorable resolution
of all disputed relevant facts.
the typical pleading-stage, motion to dismiss, the facts in
the amended complaint and affidavits are fairly
well-developed and many are hotly-contested. Extrinsic
evidence has been incorporated in the background section.
Where there are factual disputes, the Court has attempted to
note them by citing the opposing materials. The Court is
mindful that it must resolve all competing factual inferences
in favor of CAI, the non-moving plaintiff. See
uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421,
423-24 (7th Cir. 2010). Moreover, as the plaintiff, CAI is
entitled to have any conflicts in the affidavits resolved in
its favor. Turnock v. Cope, 816 F.2d 332, 333 (7th
Indiana corporation with its principal place of business in
Indianapolis, runs its accounting, human resources,
marketing, administrative, data-management, and technology
functions out of Indianapolis. In addition, its senior
management, training facilities, and cloud-based information
technology center are all located in Indianapolis.
in the business of providing commissioning services, which
include consulting, engineering, and design services to
ensure that a building is constructed to fit its intended
purpose and operates accordingly. The commissioning industry
bears some similarity to the construction industry in that
clients put projects up for bid to qualified commissioning
firms and award the business to the commissioning firm most
suited to perform the work required, often based on the
pricing information and technical ability manifested in a
firm's proposal. The commissioning firm hired to do the
work is then responsible for ensuring that the work is
completed on time.
clients usually do not advertise publicly when they have a
need for commissioning services. Instead, clients typically
announce their needs only to those firms with whom they have
a prior relationship or with those firms that are known to
have a strong reputation for quality work. Commissioning
firms, therefore, invest significant resources in cultivating
strong relationships with prospective clients and in building
a strong reputation through consistent, excellent work.
HughGM and HughCx
and HughCx are both limited liability companies with their
principal places of business in the state of Washington. The
sole member of HughGM is George H. Amburn, Jr. (" Mr.
Amburn" ), a resident and citizen of Washington; and the
sole member of HughCx is HughGM, which is also a citizen of
Washington. Like CAI, HughGM is in the business of
providing commissioning services for corporate clients.
Mr. Long and MMC
Long is a resident of Washington. Other than his three-day
training in Indianapolis, Mr. Long has neither visited nor
conducted business in Indiana. MMC is a limited liability
company, allegedly owned by Mr. Long, organized under the
laws of Nevada, and primarily doing business in Washington.
MMC has never done any business in Indiana.
Mr. Long works concurrently for CAI and HughGM
Mr. Long is hired by CAI
October 2012, Mr. Long contacted Nathan Temple (" Mr.
Temple" ), CAI's Regional Manager for Washington,
Oregon and California, regarding contract work in the
Washington area. In response, Mr. Temple informed Mr. Long
that CAI did not hire independent contractors but he was
interested in talking to Mr. Long about full-time employment
the course of the next two months, Mr. Long participated in
numerous electronic and telephonic communications with CAI
employees and attended two interviews, one in Bellevue,
Washington and one in San Francisco, California. During the
California interview, CAI's CEO, Robert Chew (" Mr.
Chew" ), met with Mr. Long and explained that CAI was
headquartered in Indianapolis but had employees who primarily
worked in customer project locations. About a month into the
interview process, Mr. Temple e-mailed Mr. Long a copy of
CAI's employment application, which Mr. Long completed
and submitted back to Mr. Temple via e-mail. Mr. Long also
submitted his application to CAI's Human Resources
Development Director, Stephen Knoll, in Indianapolis.
December 6, 2012, Mr. Chew extended a formal employment offer
to Mr. Long via email. By the offer's terms, CAI would
provide: (1) compensation of $39.00 per hour, plus overtime,
which together provided an opportunity for Mr. Long to earn
over $100,000.00 per year, depending on the number of hours
he worked; (2) reimbursement of expenses incurred pursuant to
travel that CAI might require for CAI work; and (3) other
benefits such as paid vacation, medical insurance,
company-funded retirement contributions, and a 401(k) savings
plan. Mr. Long accepted the offer, and Mr. Chew emailed the
entire company to share the news that Mr. Long had joined
CAI's " West Coast team" .
December 10, 2012, Mr. Long began his employment at CAI. Mr.
Long traveled to Indianapolis for his initial training, where
he signed an employment agreement with CAI. By signing the
agreement, Mr. Long explicitly acknowledged that CAI's
proprietary information and materials belonged exclusively to
CAI. He further promised to keep those materials confidential
and not to use them for his own benefit or the benefit of
others. Specifically, the employment agreement read, in
significant part, as follows,
Confidential Information[:] I am aware that during the course
of my employment confidential information will be made
available to me, for instance, product designs,
employee/employment information, wage and salary data,
marketing strategies, customer and employee lists, pricing
policies and other related information. I understand that
this information is proprietary and critical to the success
of [CAI] and must not be given out or used outside of
[CAI]'s premises or with non-[CAI] employees. In the
event of termination of employment, whether voluntary or
involuntary, I hereby agree not to utilize or exploit this
information with any other individual or company.
Long personally returned the signed employment agreement to
CAI's Human Resources department in Indianapolis.
Long served as a Commissioning Engineer for CAI, and was
hired to effectuate growth and to service CAI's existing
clients in the Pacific Northwest regions. He worked from his
home office in Bellevue, Washington and at on-site client
facilities located in Washington, California, and Ireland.
Mr. Long states that he reported to Mr. Temple, who resided
and was stationed in California. (Filing No. 46-1 at 3.)
While acknowledging that he occasionally reported to Mr.
Temple, CAI asserts that Mr. Long " was hired by, was
fired by, was paid by, was evaluated by, submitted all work
expenses to, and submitted all time reports to
Indianapolis." (Filing No. 38 at 6; Filing No. 38-1 at
Mr. Long is hired by HughGM and is promoted
externally as a " Principal" and " Owner
point during his employment with CAI, Mr. Long also began
working for HughGM. The parties dispute whether Mr. Long held
an ownership interest in HughGM. However, the parties do not
dispute that HughGM prominently and repeatedly held Mr. Long
out to the public as a " Principal" and "
Owner Leader" . For instance, Mr. Long was listed as a
HughGM " Principal" on HughGM's website and as
an " Owner Leader" in HughGM's marketing
materials. In both places, Mr. Long was featured prominently
in the second position, behind only Mr. Amburn. In addition,
Mr. Long was given a HughGM email account, wherein the
signature block indicated that Mr. Long was a "
Principal" of HughGM.
asserts that the title " Principal" was not
intended to designate ownership interest but, rather, was
used " to identify Long and several others as
experienced members of his client service team" .
(Filing No. 43 at 3.). Similarly, HughGM explains that the
title " Owner Leader" was " intended to
highlight Mr. Long's claimed industry experience as an
[sic] construction and commissioning owner's
representative, which is the outside consultant that assists
the owner of a construction project" ...