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McAfee, LLC v. Kinney

United States District Court, E.D. Texas, Sherman Division

August 29, 2019




         Pending before the Court is Defendant Percy O. Tejeda’s Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. #30). Having considered the motion and the relevant pleadings, the Court finds that Motion to Dismiss should be granted in part and denied in part.


         Plaintiff McAfee, LLC filed suit against Defendants Jennifer E. Kinney (“Kinney”), Alan P. Coe (“Coe”), Percy O. Tejeda (“Tejeda”) (collectively “Individual Defendants”), and Tanium, Inc. (“Tanium”) after the Individual Defendants left their employment with Plaintiff to join Plaintiff’s alleged competitor, Tanium. Tejeda was the first of the Individual Defendants to leave Plaintiff and join Tanium.

         At all times during Tejeda’s employment with Plaintiff, Tejeda resided in California and worked for Plaintiff in California. While working for Plaintiff, Tejeda signed an employment agreement (“Tejeda’s Employment Agreement”). It contained the following relevant provisions:

3. Confidential Information and McAfee Property
During and after my McAfee employment, I will hold in strict confidence and not disclose or use any Confidential Information connected with McAfee business or the business of any McAfee’s suppliers, customers, employees, or contractors. . . . For purposes of this Agreement, Confidential Information includes, without limitation: . . . personnel information (e.g. organizational charts, employee lists, skill sets, employee health information, names, phone numbers, email addresses, personnel files, employee compensation except where the disclosure of such personnel information is permissible under local labor law such as the right of employees to discuss compensation and working conditions under the US National Labor Relations Act), and other non-public McAfee data and information of a similar nature.
5. Non-Solicitation and Misappropriation of Trade Secrets
McAfee has a legitimate business interest in its continuing employment and customer relationships and in protecting those relationships from unlawful interference. Accordingly, I agree that during my employment and for twelve (12) months after my employment ends, I will not solicit, directly or indirectly, any employee to leave his/her employment with McAfee. During the twelve (12) months after my employment ends, this applies to any employees that were employed with McAfee as of my separation date from the Company and with whom I had business contact or about whom I had access to Confidential Information during my previous two years of employment with the Company prior to my separation.

(Dkt. #1, Exhibit 1 at pp. 20–21). Kinney had a substantially similar, if not identical, employment agreement with Plaintiff.

         Now Tejeda, still residing in California, works for Tanium in California. After leaving McAfee and while working for Tanium, Tejeda reached out by electronic communication, to Kinney, who, at the time, lived and worked for Plaintiff in Texas. According to Plaintiff, these communications were intended to induce Kinney to disclose Plaintiff’s confidential information in violation of her employment agreement, to, in fact, obtain Plaintiff’s confidential information, and to recruit Kinney to work for Tanium.

         On July 17, 2019, Tejeda filed the present motion to dismiss for lack of personal jurisdiction (Dkt. #30). On July 31, 2019, Plaintiff filed its response to the motion (Dkt. #52). On August 7, 2019, Tejeda filed his reply (Dkt. #59). No. sur-reply was filed.


         Federal Rule of Civil Procedure 12(b)(2) requires a court to dismiss a claim if the court does not have personal jurisdiction over the defendant. Fed. R. Civ. P. 12(b)(2). After a non– resident defendant files a motion to dismiss for lack of personal jurisdiction, it is the plaintiff’s burden to establish that in personam jurisdiction exists. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990) (citing WNS, Inc. v. Farrow, 884 F.2d 200, 202 (5th Cir. 1989)).

         To satisfy that burden, the party seeking to invoke the court’s jurisdiction must “present sufficient facts as to make out only a prima facie case supporting jurisdiction,” if a court rules on a motion without an evidentiary hearing. Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000).[1] When considering the motion to dismiss, “[a]llegations in [a] plaintiff’s complaint are taken as true except to the extent that they are contradicted by defendant’s affidavits.” Int’l Truck & Engine Corp. v. Quintana, 259 F. Supp. 2d 553');">259 F. Supp. 2d 553, 557 (N.D. Tex. 2003) (citing Wyatt v. Kaplan, 686 F.2d 276, 282–83 n.13 (5th Cir. 1982)); accord Black v. Acme Mkts., Inc., 564 F.2d 681, 683 n.3 (5th Cir. 1977). Further, “[a]ny genuine, material conflicts between the facts established by the parties’ affidavits and other evidence are resolved in favor of plaintiff for the purposes of determining whether a prima facie case exists.” Int’l Truck & Engine Corp, 259 F. Supp. 2d at 557 (citing Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 161, 1067 (5th Cir. 1992)). However, if a court holds an evidentiary hearing, a plaintiff “must establish jurisdiction by a preponderance of the admissible evidence.” In re Chinese Manufactured Drywall Prods. Liab. Lit., 742 F.3d 576, 585 (5th Cir. 2014) (citing Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241–42 (5th Cir. 2008)).

         A court conducts a two–step inquiry when a defendant challenges personal jurisdiction. Ham v. La Cinega Music Co., 4 F.3d 413, 415 (5th Cir. 1993). First, absent a controlling federal statute regarding service of process, the court must determine whether the forum state’s long–arm statute confers personal jurisdiction over the defendant. Id. And second, the court establishes whether the exercise of jurisdiction is consistent with due process under the United States Constitution.

         The Texas long–arm statute confers jurisdiction to the limits of due process under the Constitution. Command–Aire Corp. v. Ont. Mech. Sales and Serv. Inc., 963 F.2d 90, 93 (5th Cir. 1992). Therefore, the sole inquiry that remains is whether personal jurisdiction offends or comports with federal constitutional guarantees. Bullion, 895 F.2d at 216. The Due Process Clause permits the exercise of personal jurisdiction over a non–resident defendant when the defendant has established minimum contacts with the forum state “such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 ...

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