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Nicholas Stevens v. Craig Welch

February 7, 2011

NICHOLAS STEVENS, PLAINTIFF,
v.
CRAIG WELCH, DAN MOYSE, AND ACADIASOFT, INC.,
DEFENDANTS.



The opinion of the court was delivered by: Wigenton, District Judge.

OPINION

Before the Court is Defendants Craig Welch ("Welch"), Dan Moyse ("Moyse"), and AcadiaSoft, Inc.‟s ("AcadiaSoft") (collectively "Defendants") Motion to Dismiss Plaintiff Nicholas Stevens‟s ("Plaintiff" or "Stevens") complaint pursuant to Fed. R. Civ.

P. 12(b)(2) and 12(b)(6).*fn1 This Court has jurisdiction pursuant to 28 U.S.C. § 1332. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(a). This Court, having considered the parties‟ submissions, decides this matter without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons stated below, this Court grants Defendants‟ Motion to Dismiss.

I.FACTUAL AND PROCEDURAL BACKGROUND

In 2004, Welch and Moyse, both residents of Massachusetts, founded AcadiaSoft. (Compl. ¶ 9.) AcadiaSoft, a Delaware corporation with its principal place of business in Massachusetts, provides "propriety software for managing collateral and margin related transactions related to derivatives securities investments." (Id. at ¶¶ 4, 10.) AcadiaSoft developed a software program, Acadia Collateral Management ("ACM"), to "process these investments." (Id. at ¶ 10.) AcadiaSoft‟s customers include "investment managers, insurance companies, banks, corporations, mutual funds and hedge funds engaged in investment management activities." (Id.)

In May 2005, Welch allegedly approached Plaintiff Stevens, a resident of New Jersey, about working at AcadiaSoft. (Id. at ¶ 11.) Stevens, who would work from his home in New Jersey, would be responsible for "provid[ing] sales and business development services of" ACM, "developing strategic business relationships to further penetrate the derivatives market," and "assist[ing] in identifying and influencing potential buyers for [] AcadiaSoft." (Id.) Plaintiff maintains, and Defendants dispute, that because Fidelty Investments was AcadiaSoft‟s only customer at that time, Defendants orally offered him ""sweat equity‟ in AcadiaSoft, which was expressed as a percentage of what Welch would receive upon the sale of AcadiaSoft." (Id. at ¶ 12.) This "percentage was quoted at 5% or $1 [m]illion." (Id.) Moreover, Stevens alleges that Welch purported that AcadiaSoft would be sold within three years. (Id.)

Plaintiff contends that he agreed to work for Defendants pursuant to the above terms (the "Contract"). In addition, on May 11, 2005, Stevens entered into a Confidentiality Agreement (the "Agreement") with AcadiaSoft. (Aff. of Dan Moyse ¶ 2.) Relevant to this motion are Clause 7, which addresses future relations between the parties, and Clause 8, the forum selection clause.

Clause 7 reads as follows:

Unless and until a definitive agreement between Nick Stevens and Acadia has been executed with respect to any transaction that may be discussed between them, neither Nick Stevens nor Acadia will be under any legal obligation of any kind whatsoever with respect to such transaction, by virtue of any other written or oral expression with respect to such transaction, by any officers, directors, general partners, employees, counsel, financial advisors or other representatives of Acadia or Nick Stevens, except for the matters specifically agreed to in this [] Agreement. (Defs.‟ Ex. A ¶ 7) (emphasis added). Clause 8 provides that:

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to the conflicts laws of Massachusetts. Any dispute arising out of this Agreement, if litigated, shall be resolved by Courts of the Commonwealth of Massachusetts, and the parties hereby consent to the jurisdiction of such courts and agree that they are a convenient forum. (Id. at ¶ 8) (emphasis added).

Although Stevens alleges that he "embarked on an aggressive campaign to contact and introduce ACM . . . to the investment community," he did not make a sale during his tenure at AcadiaSoft. (Compl. ¶ 14.) However, Stevens maintains that he identified two potential buyers for AcadiaSoft, Omgeo and ICAP, but Welch and Moyse refused to negotiate in good faith with the potential buyers. (Id. at ¶¶ 14-16, 24-26.) Stevens asserts that he ultimately terminated his employment with Defendants in March 2009 because he was receiving "little to no compensation." (Id. at ¶ 17.) At this time, AcadiaSoft had yet to be sold.

Subsequently, on June 18, 2010, Plaintiff filed a complaint against Defendants in the Superior Court of New Jersey, Union County, alleging breaching of contract, misrepresentation, tortiousinterference with economic opportunity, breach of fiduciary duty and the covenant of good faith and fair dealing, quantum meruit, unjust enrichment, promissory estoppel, and constructive discharge. (Id. at ¶¶ 19-87.) Thereafter, on August 3, 2010, Defendants removed the action to the United States District Court for New Jersey and filed the subject Motion to Dismiss. Specifically, Defendants seek to dismiss Plaintiff‟s complaint on three alternative grounds: lack of personal jurisdiction; the forum selection clause; and failure to state a claim upon which relief can be granted.

II.DISCUSSION

A. LEGAL STANDARD ESTABLISHING PERSONAL ...


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