Savis, Inc. v. Cardenas

• Decision Date: 24 October 2018
• Docket Number: Case No. 18 CV 6521
• Parties: SAVIS, INC., Plaintiff, v. NEFTALI CARDENAS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

SAVIS, INC., Plaintiff, v. NEFTALI CARDENAS, Defendant.

Case No. 18 CV 6521

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 24, 2018

Judge Joan B. Gottschall

MEMORANDUM OPINION

Plaintiff Savis, Inc. ("Savis") brought this diversity action primarily to enforce noncompetition and nondisclosure clauses in employment contracts signed by its former employee, defendant Neftali Cardenas ("Cardenas"), who left employment with Savis in September 2018 to take a position with Pfizer, Inc. ("Pfizer"), a Savis client. In addition to two breach of contract claims pleaded in Counts I and II of the complaint, Savis brings claims for breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and tortious interference with contracts, business relationships, and business expectations in Counts III-IV respectively. Compl. 13-22, ECF No. 1. Savis has filed a motion for a temporary restraining order ("TRO"), seeking to prohibit Cardenas from working for Pfizer and from disclosing alleged confidential information. Cardenas, who had never set foot in Chicago before the first hearing on Savis' motion for a TRO, Cardenas Decl. ¶ 16, ECF No. 31, moves to dismiss for lack of personal jurisdiction.

I. Background

A. Procedural History

Savis filed its complaint on September 25, 2018, and a placeholder motion for a TRO two days later on September 27, ECF No. 8. The one-page motion was intended to permit the clerk to place the motion on the judge's calendar for the next day on an emergency basis. See id. at 1; Notice Mot. 1, ECF No. 9. Savis filed a more fulsome motion for a TRO later on September 27, which is presently before the court, ECF No. 10.

No one appeared for Cardenas on September 28, 2018, and the court ordered Savis to give Cardenas notice of the TRO before proceeding. See Fed. R. Civ. P. 65(b); ECF No. 14. The hearing was set for October 3, id., but on October 1, Savis renoticed its motion for presentment on October 10, ECF No. 17. Mr. Cardenas nevertheless appeared in open court on October 3, and a hearing was held. Minute Entry, ECF No. 25. Savis' counsel summarized the motion for a TRO; Cardenas moved to recruit counsel; and the court granted his motion, finding "that defendant is effectively indigent for purposes of proceedings on plaintiff's motion for a temporary restraining order and for preliminary injunction."¹ Minute Order 1, ECF No. 20. The court held a hearing on Savis' motion for a TRO on October 10, 2018. Minute Entry, ECF No. 33. Earlier that day, Cardenas filed several papers, a response in opposition to the motion for TRO, ECF No. 29; his pending motion to dismiss for lack of personal jurisdiction, ECF No. 30; and a declaration in support of both filings, ECF No. 31. Savis and Cardenas each called one witness at the hearing. Cardenas called himself. Savis called a Chicago-based project manager, Yasser Abdullah ("Abdullah").

Savis relies primarily on the affidavits of Tim Mussman ("Mussman") to support its factual positions. Mussman filed three affidavits in support of its TRO motions, referred to here as his first, second, and third affidavits respectively.² ECF Nos. 11-1, 34-1, and 35-3. The Mussman affidavits supporting Savis' response to Cardenas' motion to dismiss and in support of its reply to its motion for a TRO overlap, but they are not identical. Compare ECF No. 34-1, with ECF No. 35-3. Similarly, Savis filed a largely, but not entirely, overlapping set of exhibits with its reply in support of its motion for a TRO and with its response to Cardenas' motion to dismiss. Compare ECF No. 34, with ECF No. 35. Notably, Mussman's third affidavit, filed in support of its reply to its motion for a TRO, includes several averments not present in his prior affidavits and incorporates several exhibits the court had not seen before the filing of the response and reply ("collectively new exhibits"). The motions' different procedural postures require the court to take a somewhat dualistic perspective on the new exhibits. Savis' new exhibits must be disregarded for purposes of the TRO motion because "[a] party . . . cannot make conclusory and underdeveloped arguments in its opening brief and then deign to support and develop those arguments in his or her reply brief." Thompson v. AT&T Servs., 2018 WL 4567714, at *6 (N.D. Ill. Sept. 24, 2018) (quoting Johnson v. Root, 812 F. Supp. 2d 914, 924 (N.D. Ill. 2011)) (granting motion to strike new arguments and declarations submitted with reply brief). But for purposes of deciding Cardenas' motion to dismiss, Savis' new evidence comes in a response to which Cardenas has been given the opportunity to reply and must therefore be considered when deciding that motion. Some of the new exhibits are discussed in the following paragraph to provide context and as necessary to decide Cardenas' motion to dismiss, but the court does not consider the new exhibits when deciding Savis' motion for a TRO.

B. The Parties

Savis is incorporated in Florida. 1st Mussman Aff. ¶ 3. Its "principal place of business" is located in Chicago, Illinois, though Mussman's first affidavit says somewhat confusingly that Savis' "headquarters" are in Florida. Id. Savis describes itself as "a project consulting firm with over 25 years of [Good Management Processes ("GMP")] expertise and has a U.S. based team specializing in engineering, validation, regulatory and IT solutions." Id. ¶ 16. Savis alleges in its complaint that Cardenas "resides" in California, ECF No. 1 ¶ 4, and Cardenas avers that he is a citizen of California, Cardenas Decl. ¶ 3. Cardenas has a California driver's license, is registered to vote in California, and paid California income taxes on his earnings while he worked for Savis. Id. ¶¶ 4-6, 11.

C. Cardenas' Employment with Savis

After graduating from college, Cardenas submitted his resume to Savis in July 2016 via a popular website for job seekers. See id. ¶ 7. He interviewed by phone from California with Savis' president and a human resources representative in Chicago. Id. ¶ 8; 2d Mussman Aff. ¶ 11. Savis sent him a written offer of employment as a project engineer after the interview, ECF No. 34-7 (Aug. 2, 2016). Cardenas signed Savis' offer letter in California. Cardenas Decl. ¶ 10. According to Savis, Cardenas initially worked on a project for Amgen, a client, located in Thousand Oaks, California. See 2d Mussman Aff. ¶ 12.

Savis reassigned Cardenas to work in Kansas at a facility operated by Pfizer. Cardenas Decl. ¶ 12; Compl. ¶ 20. Savis paid Cardenas a per diem and covered the cost of his lodging, transportation, and meals. Cardenas Decl. ¶ 12; Compl. ¶ 20.

Savis began working on the Kansas project for Pfizer in 2016, and its work is ongoing. 1st Mussman Aff. ¶ 17. Cardenas received several raises while working for Savis. CardenasDecl. ¶ 20. Cardenas avers that he received his training from a Pfizer employee. Id. ¶ 19. Mussman partially disputes that claim. See 2d Mussman Aff. ¶ 24.

On May 31, 2018, Savis sent Cardenas a letter offering to renew his employment with Savis; the offer superseded all prior agreements he had with Savis. ECF No. 1-1 at 1. The letter stated that the offer was for "initial placement of employment" in Chicago but listed "current place of work" as Kansas. Id. at 2. The letter also stated that, as part of his duties, Cardenas will "[o]we a duty of loyalty to the Company and will devote Employee's full working time, attention, and efforts to the business and affairs of the Company" and that Cardenas "[w]ill not directly or indirectly engage in any business activity competitive with the Company's business or divert any business opportunity related to the Company's business from [sic] the Company."³ Id. at 1. Cardenas signed this letter on June 5, 2018. See id. at 3.

On or around June 6, 2018, Cardenas also signed an employment agreement dated April 1, 2018. ECF No. 1-2; see also Cardenas Decl. ¶ 22. It contained the following clauses:

3. Non-Disclosure of Confidential Information

Employee understands and acknowledges that during Employee's employment with the Company, Employee will be given access to, and will be entrusted with, confidential or proprietary information concerning the business and affairs of the Company, the Company's respective clients and prospective clients, and other third parties who entrust information to the Employee with the understanding, express or implied, that it will be kept confidential (collectively, "Confidential Information").

Employee acknowledges and agrees that: (1) the Company has expended significant resources in developing, compiling and maintaining the Confidential Information and/or have [sic] received such information from third parties under obligations of confidentiality; (2) the Confidential Information derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; (3) the Confidential Information is the subject of efforts that are reasonable under the circumstances tomaintain its secrecy; (4) the disclosure of any Confidential Information to competitors of the Company or to the general public would be highly detrimental to the legitimate business interests of the Company; and (5) Employee's obligations with respect to confidential or proprietary information are in addition to any obligations Employee may have under Uniform Trade Secrets Act or other applicable law governing the protection of trade secrets.

During Employee's employment with the Company, and for a period of two (2) years after termination of services (whether voluntary or involuntary), Employee shall not, directly or indirectly, use or disclose any Confidential Information, except (1) as may be required for Employee to perform properly Employee's assigned employment duties and responsibilities for the benefit of the Company or (2) as may be required by applicable law. During

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