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HCC Specialty Underwriters, Inc. v. Woodbury

United States District Court, D. New Hampshire

June 1, 2017

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.


          Landya McCafferty United States District Judge

         Defendant 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.

         Standard of Review

         Under 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 (2009).

         Ordinarily, 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).


         The 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.

         Woodbury 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.


         HCC 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 attorneys' fees.

         Defendants 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.

         I. Enforceability of the Agreement

         Defendants 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 ...

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