United States District Court, D. New Hampshire
HCC Specialty Underwriters, Inc.
John Woodbury Opinion No. 2017 DNH 101
Nicholas F. Casolaro, Esq. Thomas E. Ganucheau, Esq. Russell
F. Hilliard, Esq. Susan Aileen Lowry, Esq. Jennifer L.
Parent, Esq. Joel T. Towner, Esq.
McCafferty United States District Judge
John Woodbury worked for plaintiff HCC Specialty
Underwriters, Inc. (“HCC”), a provider of
specialized insurance products for the sports and
entertainment industries, until June 2016, when he resigned
from HCC and immediately joined its competitor, Buttine
Underwriters Agency, LLC, d/b/a Prize and Promotion Insurance
Services (“PPI”). HCC brings this suit, alleging
that it had a non-competition agreement with Woodbury, of
which PPI is aware, and that defendants' conduct in the
face of that agreement gives rise to several contract and
tort claims. Defendants move to dismiss the complaint,
arguing that the non-competition agreement is unenforceable
and, therefore, HCC fails to allege a plausible claim for
relief. HCC objects.
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true, construe reasonable inferences in
the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set
forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 71 (1st Cir. 2014) (citation omitted). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
the court considers only the well-pleaded facts in the
complaint to decide a motion to dismiss under Rule 12(b)(6).
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). In
addition, however, the court may consider “facts
extractable from documentation annexed to or incorporated by
reference in the complaint and matters susceptible to
judicial notice.” Rederford v. U.S. Airways,
Inc., 589 F.3d 30, 35 (1st Cir. 2009) (internal
quotation marks omitted). The court may also consider matters
of public record and documents whose authenticity is not
disputed. Global Tower Assets, LLC v. Town of Rome,
810 F.3d 77, 89 (1st Cir. 2016).
complaint asserts the following facts. In 1996, John Woodbury
and HCC's predecessor, American Specialty Underwriters,
Inc. (“American”) entered into an
“Employment, Incentive Compensation, Confidentiality
and Non-Competition Agreement” (the
“Agreement”). Woodbury agreed that he would not
disclose any of his employer's confidential information
and would not use any confidential information on behalf of
any future employer. Woodbury also agreed that during the
term of his employment, and for a period of two years
following termination of his employment, he would not divert
or attempt to divert business from his employer, would not
interfere in any material respect with his employer's
business relationships, and would not provide services to or
have any interest in a person whose activities would violate
the non-competition provisions of the Agreement.
worked for American or its successors, including HCC, for the
next 20 years. In June 2016, Woodbury resigned from HCC, and
shortly thereafter, joined PPI. Since his departure, both
Woodbury and PPI have engaged in activities that violate the
terms of the Agreement, including attempting to divert
business from HCC, interfering with HCC's business
relationships, and setting up competing facilities. Woodbury
also accessed several confidential HCC documents prior to and
after his resignation.
brings this suit, alleging claims arising out of the
Agreement and its confidentiality and non-competition
provisions. Specifically, HCC asserts claims for (1) Specific
Performance (Count I); (2) Breach of Contract against
Woodbury (Count II); (3) Tortious Interference with a
Contract against PPI (Count III); (4) Declaratory Judgment
(Count IV); and (5) Violation of the New Hampshire Consumer
Protection Act (“CPA”), N.H. Rev. Stat. Ann.
(“RSA”) Ch. 358-A (Count V). HCC also seeks
move to dismiss all five counts of the complaint, asserting
that the Agreement is unenforceable. They also assert that
even if the Agreement is enforceable, the CPA claim (Count V)
fails because employment disputes are private in nature and
are not, therefore, within the CPA's scope.
Enforceability of the Agreement
contend that Woodbury's Agreement was made with American,
not with HCC, and that HCC is merely an assignee of the
Agreement. Defendants assert that as an assignee, HCC cannot
enforce the ...