United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO DISMISS
L. ROBART United States District Judge
the court is Defendant David Profant's motion to dismiss
Plaintiff Edifecs, Inc.'s (“Edifecs”)
complaint for failure to state a claim. (Mot. (Dkt. # 6).)
Edifecs opposes Mr. Profant's motion. (Resp. (Dkt. #
16).) The court has considered the motion, the parties'
submissions, the relevant portions of the record, and the
fully advised,  the court DENIES Mr. Profant's motion
for the reasons set forth below. In denying Mr. Profant's
motion, the court determines that the issues Mr.
Profant's motion presents would be better addressed after
additional factual development.
case arises from Mr. Profant's alleged breach of his
non-solicitation agreement with Edifecs and of his fiduciary
duty. (See generally Compl. (Dkt. # 10).) Edifecs
claims that on January 5, 2015, Mr. Profant began working for
Edifecs as Senior Vice President of Sales. (Id.
¶ 2.2.) When he joined the company, Mr. Profant signed a
non-solicitation and non-competition agreement (“the
Agreement”). (Id. ¶ 4.1.) The Agreement
I shall not during the term of my employment and for a period
of one year to follow the termination of my employment for
any reason, directly, indirectly, or by any action in concert
with others . . . induce, attempt to induce, entice, or
solicit any employee or consultant of the Company to leave
such employment or to engage in, be employed by, perform
services for, participate in or otherwise be connected with,
either directly or indirectly, me or any enterprise with
which I may be associated after termination of my employment
with the Company.
(Id. ¶ 4.2; see also id. ¶ 4.1,
Ex. 2 (“the Agreement”).)
Profant resigned from his position on November 11, 2016, and
shortly after joined Welltok, Inc. (“Welltok”) as
its Senior Vice President of Sales. (Id. ¶
4.9.) Edifecs claims that Mr. Profant has actively recruited
Edifecs employees from his former sales team to join him at
Welltok. (Id. ¶ 1.2.) Specifically, Edifecs
asserts that “after [Mr.] Profant's departure from
Edifecs, four (out of a total of 23) of Edifecs's U.S.
direct sales and sales operations staff resigned.”
(Id. ¶ 4.10.) One employee allegedly resigned
on December 16, 2016, two employees allegedly resigned on
February 1, 2017, and a fourth employee allegedly resigned on
February 3, 2017. (Id.) Edifecs claims that none of
the employees provided information about where they were
going or why and that all of the employees who left knew Mr.
Profant and had worked with him at a different employer
before they worked at Edifecs. (Id. ¶¶
4.10, 4.11) After the resignations, Edifecs alleges that
three of the former employees began working at Welltok and
the fourth employee has joined Welltok or is likely to do so.
(Id. ¶ 1.2.) In addition, before the
resignations in February, Mr. Profant allegedly informed an
Edifecs employee that there would be a “surprise
announcement” on February 1, 2017-the day on which two
employees resigned. (Id. ¶ 4.12.) Edifecs
claims that Mr. Profant then stated there would be another
“surprise” a few months later. (Id.)
contends that it employs a “lean” sales staff,
which makes it more vulnerable to harm when it loses
experienced talent. (Id. ¶ 4.6.) Edifecs claims
that by “luring away Edifecs's sales staff, [Mr.]
Profant has taken for himself and his new employer the
investments Edifecs has made in cultivating the talents of
its salespeople.” (Id. ¶ 4.13.) On March
13, 2017, Edifecs filed a complaint in King County Superior
Court alleging that Mr. Profant breached the Agreement and
his fiduciary duty. (Id. ¶¶ 5.4, 6.3.) On
April 11, 2017, Mr. Profant removed the case to this
court. (See Not. of Removal (Dkt. # 1).)
After removal, Mr. Profant filed a motion to dismiss
Edifecs's complaint for failure to state a claim which
Edifecs opposes. (See generally Mot.; Resp.) The
court now addresses the motion.
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court construes the complaint in the
light most favorable to the nonmoving party. Livid
Holdings, Ltd. v. Salomon Smith Barney, Inc., 416 F.3d
940, 946 (9th Cir. 2005). The court must accept all
well-pleaded facts as true and draw all reasonable inferences
in favor of the plaintiff. Wyler Summit P'ship v.
Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir.
1998). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556); Moss v. U.S.
Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
Although Federal Rule of Civil Procedure 8 does not require
“detailed factual allegations, ” it demands more
than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). A pleading that offers
only “labels and conclusions or a formulaic recitation
of the elements of a cause of action” will not survive
a motion to dismiss under Rule 12(b)(6). Id. A court
may dismiss a complaint as a matter of law if it lacks a
cognizable legal theory or states insufficient facts under a
cognizable legal theory. Mendiondo v. Centinela Hosp.
Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008);
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).