Case 1:21-cv-00070-WES-LDA Document 17 Filed 03/03/21 Page 1 of 16 PageID #: 650
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`C.A. No. 21-070 WES
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF RHODE ISLAND
`___________________________________
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`CVS PHARMACY, Inc.,
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`Plaintiff,
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`v.
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`TIMOTHY M. BROWN
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`Defendant.
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`___________________________________)
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`MEMORANDUM AND ORDER
`
`Along with its Complaint, Plaintiff CVS Pharmacy filed an
`Emergency Motion for a Temporary Restraining Order and a Motion
`for Preliminary Injunction, ECF No. 3. In addition to his
`Opposition, ECF No. 12, Defendant Timothy Brown filed Motion to
`Dismiss or Transfer Venue, ECF No. 10. For the reasons that
`follow, the Motion to Dismiss or Transfer Venue is GRANTED, and
`the case is transferred to the Western District of Washington to
`cure lack of personal jurisdiction.
`I.
`Background
`
`In 2017, Timothy Brown began working at Aetna, which is
`headquartered in Connecticut. Compl. ¶ 4, ECF No. 1; Notice of
`Suppl. Authority 8 n.2, ECF No. 15. He served first as a Medicare
`General Manager and later as a Chief Medicare Officer for the
`Northwest and Mountain regions of the United States. Compl. ¶¶ 4,
`28. In November 2018, Aetna was acquired by CVS. Id. ¶ 3.
`
`
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`C.A. No. 21-070 WES
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF RHODE ISLAND
`___________________________________
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`)
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`CVS PHARMACY, Inc.,
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`)
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`
`
`Plaintiff,
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`)
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`v.
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`TIMOTHY M. BROWN
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`Defendant.
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`)
`___________________________________)
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`MEMORANDUM AND ORDER
`
`Along with its Complaint, Plaintiff CVS Pharmacy filed an
`Emergency Motion for a Temporary Restraining Order and a Motion
`for Preliminary Injunction, ECF No. 3. In addition to his
`Opposition, ECF No. 12, Defendant Timothy Brown filed Motion to
`Dismiss or Transfer Venue, ECF No. 10. For the reasons that
`follow, the Motion to Dismiss or Transfer Venue is GRANTED, and
`the case is transferred to the Western District of Washington to
`cure lack of personal jurisdiction.
`I.
`Background
`
`In 2017, Timothy Brown began working at Aetna, which is
`headquartered in Connecticut. Compl. ¶ 4, ECF No. 1; Notice of
`Suppl. Authority 8 n.2, ECF No. 15. He served first as a Medicare
`General Manager and later as a Chief Medicare Officer for the
`Northwest and Mountain regions of the United States. Compl. ¶¶ 4,
`28. In November 2018, Aetna was acquired by CVS. Id. ¶ 3.
`
`
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`After receiving $97,750 in restricted stock units from CVS,
`Brown signed a noncompete agreement, promising that he would not
`do certain types of work for any competitor for one year after
`leaving CVS. Id. ¶¶ 29-36. The contract stated that the stock
`options were contingent on his acceptance of the agreement. See
`Restrictive Covenant Agreement ¶ 1, ECF No. 1-1. In January 2021,
`Brown gave notice that he was leaving Aetna/CVS and accepted a
`position as Medicare Advantage Performance Officer, Managing
`Director, for Cigna, which competes with Aetna in the Medicare
`Advantage field. Compl. ¶¶ 37, 105. After failed negotiations
`between the parties and Cigna, CVS sued, seeking to enjoin Brown
`from working for Cigna in the Medicare Advantage field for twelve
`months. Id. ¶ 106 and page 33. CVS argues that Brown has
`confidential information regarding Aetna’s business plans in the
`Medicare Advantage market. Id. ¶¶ 52-100.
`On February 11, 2021, the Court held a conference and set an
`expedited briefing schedule. Brown then filed his Motion to
`Dismiss or Transfer Venue, as well as an Opposition to the Motion
`for Temporary Restraining Order. CVS filed a Reply to Defendant’s
`Opposition to Emergency Motion for Temporary Restraining Order
`(“Reply”), ECF No. 13, responding to both the Opposition and the
`Motion to Dismiss or Transfer.1
`
`
`1 In its Reply, CVS states that it “reserves the right to file
`a brief in opposition to Defendant’s Motion to Dismiss and/or
`2
`
`
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`II. Discussion
`Brown argues that the case should be dismissed based on lack
`of personal jurisdiction. Def.’s Mem. Supp. Mot. to Dismiss or
`Transfer Venue 5-11, ECF No. 11. “In determining whether a non-
`resident defendant is subject to its jurisdiction, a federal court
`exercising diversity jurisdiction is the functional equivalent of
`a state court sitting in the forum state.” Daynard v. Ness,
`Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st
`Cir. 2002). “Rhode Island’s long-arm statute claims jurisdiction
`to the maximum extent permitted by the Fourteenth Amendment.”
`Dennett v. Archuleta, 915 F. Supp. 2d 248, 251 (D.R.I. 2013).
`Thus, the sole question presented is whether personal jurisdiction
`over Brown would comport with the Due Process Clause. See id.
`
`
`Transfer Venue” and that it “understood its reply brief was to be
`limited to the issues raised by Brown in his opposition to
`Plaintiff’s Emergency Motion for Temporary Restraining Order.”
`Reply 13 n.4, ECF No. 13. There is no need for further briefing.
`At the conference on February 11th, Brown’s counsel requested time
`to brief the issue of the temporary restraining order, stating
`that he wanted to argue that this Court lacks personal jurisdiction
`and that venue is improper in Rhode Island. CVS’s counsel
`requested the opportunity to respond to the jurisdictional and
`venue arguments; that opportunity was granted in the form of the
`Reply brief. Indeed, given the emergency nature of the Motion for
`a Temporary Restraining Order, a reply would not have been
`warranted if it were not for the Motion to Dismiss or Transfer
`Venue. The Court’s decision to transfer this case is based on
`lack of personal jurisdiction, and CVS’s arguments regarding
`personal jurisdiction are fully developed, spanning nine pages of
`its Reply. See Reply 13-21. Thus, the issue is ripe.
`
`
`
`
`3
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`Because the basic facts underlying CVS’s claim of
`jurisdiction are not disputed, the Court will utilize the prima
`facie method of determining personal jurisdiction. See Foster-
`Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st
`Cir. 1995) (noting that prima facie method is ill-suited to cases
`“that feature conflicting versions of the facts”).2 “Under this
`standard, the court need only ‘consider . . . whether the
`plaintiff has proffered evidence that, if credited, is enough to
`support
`findings
`of
`all
`facts
`essential
`to
`personal
`jurisdiction.’” Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir.
`2007) (quoting Foster–Miller, 46 F.3d at 145).
`CVS claims that this Court has specific (as opposed to
`general) jurisdiction over Brown. See Reply 14. The First Circuit
`has identified three requirements for specific jurisdiction:
`“First, the claim underlying the litigation must directly arise
`out of, or relate to, the defendant's forum-state activities.
`Second, the defendant’s in-state contacts must represent a
`purposeful availment of the privilege of conducting activities in
`the forum state, thereby invoking the benefits and protections of
`that state’s laws and making the defendant’s involuntary presence
`before the state’s courts foreseeable. Third, the exercise of
`
`
`2 The parties seem to agree that the prima facie method should
`be used. See Pl.’s Reply 13; Def.’s Mem. Supp. Mot. to Dismiss or
`Transfer Venue 6, ECF No. 11.
`
`
`
`
`4
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`
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`jurisdiction must . . . be reasonable.” PREP Tours, Inc. v. Am.
`Youth Soccer Org., 913 F.3d 11, 17 (1st Cir. 2019) (citation and
`quotations omitted). Brown focuses his arguments on the second
`prong: purposeful availment. Def.’s Mem. Supp. Mot. to Dismiss
`or Transfer Venue 10-11. The Court agrees that this requirement
`has not been met.3
`For a court to exercise personal jurisdiction over an out-of-
`state defendant, “it is essential in each case that there be some
`act by which the defendant purposefully avails itself of the
`privilege of conducting activities within the forum State, thus
`invoking the benefits and protections of its laws.” United Elec.,
`Radio and Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d
`1080, 1088 (1st Cir. 1992) (quoting Hanson v. Denckla, 357 U.S.
`235, 253 (1958)); see also Asahi Metal Indus. Co. v. Superior Court
`of California, Solano Cty., 480 U.S. 102, 112 (1987) (requiring
`“an action of the defendant personally directed toward the forum
`State.”). This requirement is “akin to a rough quid pro quo, that
`is, when a defendant deliberately targets its behavior toward the
`society or economy of a particular forum, the forum should have
`the power to subject the defendant to judgment regarding that
`behavior.” Bluetarp Fin., Inc. v. Matrix Const. Co., Inc., 709
`
`
`3 Due to this conclusion, there is no need to analyze
`relatedness or reasonableness. See PREP Tours, Inc. v. Am. Youth
`Soccer Org., 913 F.3d 11, 19 & n.5 (1st Cir. 2019).
`
`
`
`
`5
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`
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`F.3d 72, 82 (1st Cir. 2013) (citation and quotations omitted). The
`focus of this requirement is “voluntariness and foreseeability.”
`Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 10 (1st
`Cir. 2009) (citation and quotations omitted).
`CVS argues that Brown purposefully availed himself of the
`privilege of conducting activities in Rhode Island because he
`signed a noncompete agreement stating that Rhode Island law governs
`any disputes arising from the contract;4 he attended a single
`multi-day CVS training in Rhode Island; he was employed by CVS, a
`Rhode Island corporation; and he received CVS stock through his
`employment. See Reply 16-17, 19.
`The choice-of-law clause in the noncompete agreement supports
`CVS’s contention that Brown should have expected to have the
`protection of Rhode Island law. However, a contract between the
`
`
`4 For the purposes of this decision, the Court assumes without
`deciding that the choice-of-law clause is valid and enforceable.
`The noncompete agreement also states that any claims brought by
`Brown against CVS must be adjudicated in a Rhode Island court.
`See Restrictive Covenant Agreement ¶ 19, ECF No. 1-1. Clearly,
`that provision does not govern the instant action, which was
`brought by CVS against Brown. The implications to be drawn from
`this unidirectional forum selection clause are unclear. On one
`hand, it shows that Brown could have expected the possibility of
`Rhode Island-based litigation in some form or another. On the
`other hand, the fact that the agreement specifically designated
`Rhode Island as the site for Brown-initiated litigation without
`mentioning CVS-initiated litigation could be interpreted as
`affirmative proof that a case brought by CVS would not necessarily
`occur in Rhode Island. Thus, the Court concludes that the forum
`selection clause does not weigh in either direction.
`
`
`
`
`6
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`
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`parties agreeing that the law of the forum state will govern the
`contract is not on its own sufficient to establish personal
`jurisdiction. See Burger King Corp. v. Rudzewicz, 471 U.S. 462,
`482 (1985) (holding that a choice-of-law clause in a contract
`between Burger King and an out-of-state franchisee, “when combined
`with the 20-year interdependent relationship” between the parties,
`established personal jurisdiction over the franchisee). Thus, the
`question is whether CVS has established so-called “plus” factors
`sufficient to bolster the choice-of-law clause.
`CVS’s remaining evidence is that Brown worked for a Rhode
`Island company for two years, travelled to Rhode Island once, and
`accepted stock in CVS. In Walden v. Fiore, 571 U.S. 277 (2014),
`the Supreme Court held that “the plaintiff cannot be the only link
`between the defendant and the forum.” Id. at 285. “Rather, it is
`the defendant’s conduct that must form the necessary connection
`with the forum State that is the basis for its jurisdiction over
`him.” Id. This holding deals a significant blow to CVS’s
`evidence, which largely focuses on the fact Brown did work that
`benefitted CVS and that a breach of his contract could hurt CVS.
`A survey of cases in which in-state companies sue their out-
`of-state former employees for breach of noncompete agreements
`shows that purposeful availment generally turns on the frequency
`and numerosity of contact – in-person or otherwise - between the
`out-of-state employee and in-state persons. Where the out-of-
`
`
`
`7
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`state employee had regular contact with in-state workers, personal
`jurisdiction exists. See, e.g., Tekway, Inc. v. Agarwal, 19-CV-
`6867, 2020 WL 5946973, at *6 (N.D. Ill. Oct. 7, 2020) (finding
`personal jurisdiction over out-of-state employee who reached out
`to in-state employees to apply for job, signed contract with
`choice-of-law clause, and communicated “regularly” by phone,
`email, and messaging applications with in-state employees); Hilb
`Group, LLC v. Rabinowitz, CV 18-00555 WES, 2019 WL 3543690, at *2
`(D.R.I. Aug. 2, 2019) (Defendant who “allegedly purposefully stole
`clients” from his Rhode Island employer purposely availed himself
`because he “received benefits from employment in Rhode Island,
`corresponded daily and extensively with the Rhode Island office
`via email and telephone, relied heavily on Rhode Island employees
`for job-related tasks, and visited the Rhode Island office six
`times for work.”); Lombard Med. Techs., Inc. v. Johannessen, 729
`F. Supp. 2d 432, 437 (D. Mass. 2010) (finding jurisdiction where
`contract had choice-of-law clause and out-of-state employees
`received paychecks from the forum state, sent weekly expense
`reports and updates to employees in the forum state, and “would,
`from time to time, report in person”); Pro Edge, L.P. v. Gue, 374
`F. Supp. 2d 711, 733 (N.D. Iowa 2005), modified, 411 F. Supp. 2d
`1080 (N.D. Iowa 2006) (finding jurisdiction over employee who
`signed contract with choice-of-law clause, received “partnerships
`units” in the company, had a direct supervisor based in Iowa,
`
`
`
`8
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`
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`contacted the main office by phone four to eight times per week,
`and travelled to Iowa twice); Prod. Group Intern., Inc. v. Goldman,
`337 F. Supp. 2d 788, 792 (E.D. Va. 2004) (finding jurisdiction
`over out-of-state employee who signed employment contract with
`Virginia company, worked for the company for six years,
`communicated frequently with Virginia employees, and made three
`trips to Virginia headquarters).
`Conversely, where the direct contact between the out-of-state
`employee and in-state employees is meager, courts have found a
`lack of personal jurisdiction. See, e.g., Trinity Video
`Communications, Inc. v. Carey, 3:16-CV-00730-TBR, 2017 WL 1282247,
`at *4 (W.D. Ky. Apr. 4, 2017) (no jurisdiction in Kentucky where
`contract had a choice-of-law provision and all compensation,
`benefits, and email accounts were administered in Kentucky,
`because the out-of-state employees were recruited and interviewed
`in West Virginia to do work solely in West Virginia, they never
`travelled to Kentucky, and they were supervised by a West Virginia
`employee); Guaranteed Rate, Inc. v. Lapham, 2012 WL 6138947, at *3
`(N.D. Ill. Dec. 6, 2012) (no jurisdiction over former vice
`president in charge of out-of-state branch office because
`defendant’s duties were “focused entirely on California,” and the
`alleged breach of contract “took place in California”); FCStone
`LLC v. Buckley, 864 F. Supp. 2d 816, 824–25 (S.D. Iowa 2012) (no
`personal jurisdiction in Iowa despite fact that employer was based
`
`
`
`9
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`in Iowa and contract had a clause stating that Iowa law applied to
`any disputes); Microfibres, Inc. v. McDevitt-Askew, 20 F. Supp. 2d
`316, 318–19 (D.R.I. 1998) (no jurisdiction, despite contract
`clause stating that employee consented to personal jurisdiction,
`because her responsibilities were primarily in another state, she
`only communicated with headquarters “an indeterminate, although
`small, number” of times, and she travelled to forum state only
`three times); Protective Ins. Co. v. Cody, 882 F. Supp. 782, 785
`(S.D. Ind. 1995) (no personal jurisdiction over out-of-state
`employees who “knowingly entered into an employment contract with
`the local agent of an Indiana-based corporation[,]” “submitted and
`received employment-related documents from the employer's Indiana
`headquarters,” and “accepted workers compensation benefits from
`Plaintiff that allegedly were paid pursuant to Indiana law”).
`Here, CVS’s pleadings acknowledge that Brown’s work focused
`on the Northwest and Mountain regions of the country. Compl. ¶ 4,
`ECF No. 1. Moreover, CVS does not make any assertions or provide
`any evidence regarding whether and with what frequency Brown’s
`work involved direct interactions with employees in Rhode Island.
`See, e.g., Reply 16-17, 19, ECF No. 13. The only direct connection
`to Rhode Island (aside from the choice-of-law clause), as opposed
`to indirect connections via CVS, is Brown’s single trip to the
`state. This falls below the standard for purposeful availment.
`
`
`
`10
`
`
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`Additionally, courts have found relevant whether the
`defendant initiated the relationship with the in-state
`corporation. See Adelson, 652 F.3d at 82–83 (holding that there
`was purposeful availment partly because defendant “sought”
`employment “with a company whose key officers were all located in
`[the forum]”); Phillips Exeter Acad. v. Howard Phillips Fund, 196
`F.3d 284, 292 (1st Cir. 1999) (“Without evidence that the defendant
`actually reached out to the plaintiff's state of residence
`to create a relationship — say, by solicitation — the mere fact
`that the defendant willingly entered into a tendered relationship
`does not carry the day.” (citation omitted)).
`Here, as emphasized by Brown, he never accepted a job with
`CVS. Def.’s Mem. Supp. Mot. to Dismiss or Transfer Venue 10, ECF
`No. 11. Rather, he accepted a position with Aetna, a Connecticut
`corporation, which was subsequently acquired by CVS. Compl. ¶ 3.
`Although he acceded to a relationship with a Rhode Island company
`by maintaining his employment for two years following the
`acquisition, he did not initiate or seek out a relationship with
`a Rhode Island company. Thus, to the extent that his relationship
`with CVS itself involved a connection with Rhode Island, it was
`not a connection that he purposefully created.
`Moreover, Brown’s ownership of CVS stock weighs only mildly
`in favor of jurisdiction. A parent company that wholly owns a
`subsidiary is not subject to personal jurisdiction in the place of
`
`
`
`11
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`
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`incorporation or headquarters of the subsidiary unless the parent
`corporation has other connections to the forum. See de Walker v.
`Pueblo Intl., Inc., 569 F.2d 1169, 1172–73 (1st Cir. 1978). Thus,
`ownership of $97,750 in stock, a minute portion of equity in a
`multibillion-dollar corporation like CVS, does not necessarily
`play a major role in jurisdictional analysis. The cases cited by
`CVS, see Notice of Suppl. Authority 2-3, ECF No. 15, are easily
`distinguishable because the plaintiffs in those cases sought to
`rescind the vesting of the defendants’ stock options pursuant to
`the terms of the contracts at issue. See Lincoln Nat’l Corp. v.
`Flint, No. 16-cv-02588, 2016 WL 6615036, at *2 (E.D. Pa. Nov. 9,
`2016); EMC Corp. v. Petter, 104 F. Supp. 3d 127, 130-31 (D. Mass.
`2015). Here, CVS does not seek rescission; rather CVS wants to
`prevent Brown from working at Cigna. See Compl. 33. Furthermore,
`each case cited by CVS has additional facts not present here that
`provide a much stronger basis for personal jurisdiction. See
`Lincoln Nat’l, 2016 WL 6615036, at *2 (noting that, although
`defendant had moved to another state by the time of the litigation,
`defendant had lived and worked in forum state for the entirety of
`his nine-year stint working for plaintiff); EMC, 104 F. Supp. 3d
`at 130-34 (relying heavily on contract clause stating that “the
`parties submit to the exclusive jurisdiction and venue of” the
`forum state).
`
`
`
`12
`
`
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`The dust having settled (unlike the parties), little remains
`to buttress the choice-of-law provision. Brown’s abstract
`connections to Rhode Island via his former employer, along with
`his single trip to the Ocean State, are insufficient to nudge CVS’s
`case over the jurisdictional line. Though this case presents a
`close call, the Court concludes that CVS has failed to meet its
`burden of showing that Brown “purposefully avail[ed] [him]self of
`the privilege of conducting activities within the forum
`State . . . .” United Elec., Radio and Mach. Workers of Am., 960
`F.2d at 1088.5
`Thus, the case cannot proceed in this Court. The final
`question is whether the action should be dismissed or transferred.
`A district court may dismiss a case for lack of personal
`jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of
`Civil Procedure. However, if a “court finds that there is a want
`of jurisdiction, the court shall, if it is in the interest of
`justice, transfer such action or appeal to any other such
`court . . . in which the action or appeal could have been brought
`at the time it was filed or noticed . . . .” 28 U.S.C. § 1631.
`See also Fed. Home Loan Bank of Boston v. Moody’s Corp., 821 F.3d
`102, 119 (1st Cir. 2016) (holding that § 1631 applies to defects
`
`
`5 Due to this conclusion, the Court does not reach the issue
`of venue or address the substantive merits of CVS’s request for
`injunctive relief.
`
`
`
`
`13
`
`
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`of personal jurisdiction), abrogated on other grounds by Lightfoot
`v. Cendant Mortg. Corp., 137 S. Ct. 553 (2017); Republic of
`Kazakhstan v. Ketebaev, 17-CV-00246-LHK, 2018 WL 2763308, at *4
`(N.D. Cal. June 8, 2018) (“Although there is a circuit split
`whether § 1631 applies when a court lacks personal jurisdiction,
`the Ninth Circuit appears to have adopted the view that transfer
`under § 1631 can be appropriate to cure lack of personal
`jurisdiction.” (citing Gray & Co. v. Firstenberg Machinery Co.,
`913 F.2d 758, 761-62 (9th Cir. 1990) (other citation omitted)).
`
`Brown requests dismissal as the remedy for want of
`jurisdiction, and neither party mentions § 1631. See Def.’s Mem.
`Supp. Mot. to Dismiss or Transfer Venue 5; Reply. Nonetheless,
`“the court considers the question sua sponte consistent with the
`First Circuit’s determination that § 1631 creates a presumption in
`favor of transfer rather than dismissal in cases where a court
`determines it lacks jurisdiction.” Shelton Brothers, Inc. v. Three
`Pirates, LLC, CV 15-30140-MGM, 2017 WL 1227922, at *6 (D. Mass.
`Mar. 31, 2017) (citing Britell v. United States, 318 F.3d 70, 73
`(1st Cir. 2003)). The mechanism of 28 U.S.C. § 1631 should be
`utilized unless “transfer is not in the interest of justice.”
`Britell, 318 F.3d at 74. “Congress wanted courts to exempt from
`the transfer mandate those cases in which transfer would unfairly
`benefit the proponent, impose an unwarranted hardship on an
`
`
`
`14
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`
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`objector, or unduly burden the judicial system.” Id. at 74
`(citations omitted).
`Here, all signs point to the Western District of Washington.
`Brown lived and worked in that district throughout his employment.
`See Reply 17 (“Brown was based in Washington . . . .”); Brown Decl.
`¶ 3, ECF No. 11-1. Defense counsel has represented to the court
`that Brown plans to continue residing in that district. Moreover,
`dismissal could lead to refiling, further delaying a case that is
`of great urgency for both parties. In response to Brown’s request
`for transfer to cure lack of venue, CVS remarks in its Notice of
`Supplemental Authority that the District of Connecticut would be
`preferable to the Western District of Washington. See Notice of
`Suppl. Authority 8 n.2, ECF No. 15. However, the record before
`this Court does not make clear that personal jurisdiction would
`lie in Connecticut, and that is not a remedy requested in the
`motion. Therefore, to encourage judicial efficiency and avoid
`undue delay, transfer to the Western District of Washington is
`appropriate.6
`
`
`6 Of course, CVS always has the option of dismissing this case
`and refiling in Connecticut, or moving to transfer venue once the
`case is sent to the Western District of Washington.
`15
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`III. Conclusion
`Defendant’s Motion to Dismiss or Transfer Venue, ECF No. 10,
`is GRANTED, and the case is transferred to the Western District of
`Washington to cure lack of personal jurisdiction.
`
`IT IS SO ORDERED.
`
`
`William E. Smith
`District Judge
`Date: March 3, 2021
`
`
`
`
`
`16
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