                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



BASE ONE TECHNOLOGIES, INC.,

       Plaintiff,
               v.                                         Civil Action No. 14-1520 (JEB)
MOHAMMED ALI, et al.,

       Defendants.


                                  MEMORANDUM OPINION

       One reason that companies insert non-compete provisions in their employment contracts

is to prevent their workers from stealing their clients. That, claims Plaintiff Base One

Technologies, is precisely what happened here.

       Base One is an information-technology support firm that provides recruiting and staffing

services to its clientele. Several years ago, it hired Defendants Mohammed Ali and Hossein

Beyzavi and designated them to provide IT assistance to International Business Machines

Corporation, one of Base One’s bread-and-butter clients. According to Plaintiff, however,

Defendants did more than assist: they exploited the access they had been granted and – while still

employed with Base One – offered their services to IBM for full-time employment. That

company ultimately hired both Defendants directly, thereby ousting Plaintiff from the picture

and depriving it of potential revenue from continuing to staff those two positions.

       Aggrieved by this abrupt turn of events, Base One turned to the courts. Its Complaint

presents a veritable cornucopia of claims, including, inter alia, breach of contract, breach of

fiduciary duty and the duty of loyalty, tortious interference with business relations, and unjust

enrichment. Defendants have now filed a Motion to Dismiss. Although some of Plaintiff’s

                                                 1
allegations are facially deficient, others pass the relatively undemanding Rule 12(b)(6) bar. As a

result, the Court will grant Defendants’ Motion in part and deny it in part.

I.     Background

       According to its Complaint – which at this juncture the Court must credit – Plaintiff Base

One Technologies is a “technology engineering services and support firm,” which recruits and

staffs “a variety of IT disciplines,” including “network infrastructure support, software

development and application services, information security, enterprise databases and

warehousing, backup and recovery strategies, and project management.” Compl., ¶¶ 7-8. Its

client base is principally comprised of companies operating within the telecommunications and

financial spheres. See id., ¶ 9. The firm is incorporated under Delaware law and headquartered

in New York. See id., ¶ 1.

       Plaintiff’s business model is fairly straightforward: it is essentially a matchmaker. Base

One first confers with its clients to “determine their IT needs” and “the qualifications of the ideal

candidate to provide those services.” Id., ¶ 9. It then recruits, vets, and hires – as its own

employees – appropriately credentialed individuals who possess the requisite technical ability.

See id., ¶¶ 9-12. As the final step, the newly hired employees are then matched to specific client

projects, earning revenue for Base One for the length of their placements. See id. Plaintiff’s

“continued relationship with its clients, as well as [its] continued relationship with its

employees,” are thus of “critical importance” to its success. Id., ¶ 17.

       In December 2009, IBM engaged the firm to provide staffing assistance on a certain

“Project.” See id., ¶ 12. The Project is ongoing and fully funded through June 2015, with a total

value of over $10 million. See id. To date, approximately 32 Base One employees have worked

for IBM in connection with the Project. See id.



                                                  2
        In February 2012, Plaintiff hired Defendant Mohammed Ali to provide engineering

assistance for the Project in the District of Columbia. See id., ¶ 13. Over a year and a half later,

in December 2013, Defendant Hossein Beyzavi was hired to do the same. See id., ¶ 14. As a

condition of employment with Base One, Defendants signed identical “Confidence and Non-

Compete Agreement[s].” See id., ¶¶ 15, 27; see also id., Exhs. A & B (Ali and Beyzavi

Agreements).

        Pursuant to Section 1 of the Agreements, each Defendant “acknowledge[d]” the

“substantial time, effort and money” expended by Plaintiff in identifying potential client business

and qualified employees. See Agreements, § 1(B). The Agreements further spelled out Base

One’s concern that

               the Employee will frequently be the principal intermediary and
               personal contact between [Base One] and its customers and it is,
               therefore, anticipated that because of the Employee’s knowledge of
               the business of said persons or entities and the fact that personal
               loyalties may develop between the Employee and said persons or
               entities, such persons or entities might desire to place their IT
               business directly with the Employee rather than the Company at
               such time as the Employee is no longer employed by the Company.

Id., § 1(E).

        Against that backdrop, Section 3 set forth certain restrictions that operate for the duration

of an employee’s tenure with Base One and for a one-year period thereafter. In relevant part,

each Defendant agreed not to “market any Competitive type services directly or indirectly to any

Base One clients” that had been assigned to him. See id., § 3(A). They also consented to refrain

from

               solicit[ing], contact[ing], represent[ing], or offer[ing] to represent
               the Company’s Full-Time Employees and/or Independent
               Contractors, whether or not such solicitation, contact, or offer was
               initiated, prompted or in any other way developed by the



                                                  3
               Employee or by the other Full-Time Employee or Independent
               Contractor . . . .

Id., § 3(B). The parties further stipulated that, in the event of breach, Base One would be entitled

to equitable and injunctive relief in addition to any other available remedies. See id., § 6.

Finally, Section 10 dictated that each Agreement would “be governed by and construed in

accordance with the laws of the State of New York.”

       All was quiet amongst the parties until June 2014. Base One claims that, around that

time, it learned that Ali and Beyzavi had “conspired with one another to approach, and

subsequently approached, IBM to market their own services for full-time employment with

IBM.” Compl., ¶ 23. According to the Complaint, Defendants took these steps “while working

for Base One on the Project” – that is, during the course of their employment with Base One.

Id. “As a result of their overtures,” alleges Plaintiff, “Defendants were hired by IBM to . . .

perform[] materially the same services they had been providing to IBM through their

employment with Base One and their assignment to the Project.” Id., ¶ 24. Ali and Beyzavi

began employment with IBM on or around June 10, 2014, thus “depriving Base One of

substantial revenue it would have received for the continued placement of Defendants to IBM

through the Project end date of June 2015.” Id., ¶ 25.

       Dismayed at this perceived betrayal, Base One filed suit in this Court on September 5,

2014, asserting sundry contractual, tort, and fiduciary causes of action. Defendants have now

filed virtually identical Motions to Dismiss. For the sake of simplicity, the Court refers to the

two submissions jointly as “Defendants’ Motion” or “MTD.”

II.    Legal Standard

       Under Federal Rule of Civil Procedure 12(b)(6), the Court must dismiss a claim for relief

when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a

                                                  4
motion to dismiss, the Court must “treat the complaint’s factual allegations as true and must

grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow

v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citation and internal quotation

marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court need not accept as

true, however, “a legal conclusion couched as a factual allegation,” nor an inference unsupported

by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)

(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although “detailed factual allegations”

are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to

state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation

omitted). A plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and

unlikely,” but the facts alleged in the complaint “must be enough to raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232,

236 (1974)).

III.   Analysis

       Plaintiff’s Complaint advances eight distinct claims, each of which Defendants dispute:

(1) breach of Section 3(A) of the Non-Compete Agreement; (2) breach of Section 3(B) of the

same Agreement; (3) breach of fiduciary duty; (4) unfair competition; (5) tortious interference

with prospective business relations; (6) unjust enrichment; (7) faithless servant; and (8) a count

styled “injunctive relief.” Base One has since conceded the infirmity of the fourth and fifth

causes of action. See Opp. at 13 n.3. The Court will take up each of the remaining counts

seriatim, ultimately concluding that Counts Two and Eight should be dismissed, but that the rest

survive Defendants’ Motion.



                                                   5
       At the outset, the Court notes that federal jurisdiction in this case is based on diversity of

citizenship, see 28 U.S.C. § 1332, and that, accordingly, state law provides the substantive rules

of law with regard to all claims. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Here,

the Non-Compete Agreement executed by Defendants contains a choice-of-law provision stating

that “it shall be governed by and construed in accordance with the laws of the State of New

York.” Agreements, § 10. Although a contractual choice-of-law provision does not bind parties

with respect to non-contractual causes of action, see Minebea Co. v. Papst, 377 F. Supp. 2d 34,

38 (D.D.C. 2005), the parties in this case rely solely on New York law with respect to all of the

counts. The Court, therefore, follows suit. See Piedmont Resolution, LLC v. Johnston, Rivlin &

Foley, 999 F. Supp. 34, 39 (D.D.C. 1998) (“The parties have not raised any choice of law issues

and, in their arguments in support of and in opposition to [the] motion for summary judgment, all

parties have relied solely on District of Columbia law. Accordingly, the Court will resolve the

motion under District of Columbia law.”).

       A. Count I: Breach of Section 3(A)

       Plaintiff’s first claim is premised on Section 3(A) of the Non-Compete Agreement, which

prohibits a Base One employee from “market[ing] any Competitive type services” to any Base

One clients assigned to him. The restriction, by its terms, extends throughout the duration of

employment with Base One and for a year following termination. The Complaint alleges that

Defendants breached this restrictive covenant by marketing their services to IBM while still

employed by Base One. See Compl., ¶¶ 27-32.

       To state a claim for breach of contract under New York law, a plaintiff must allege “(1)

the existence of a valid, enforceable agreement; (2) performance of the contract by one party; (3)

breach of the contract by the other party; and (4) damages.” Bridgeport Music, Inc. v. Universal



                                                  6
Music Grp., Inc., 440 F. Supp. 2d 342, 344-45 (S.D.N.Y. 2006). Defendants argue that Base

One’s claim is doubly flawed. They first assert that Plaintiff has not set forth sufficient factual

allegations to establish that they marketed their services to IBM in breach of Section 3(A).

Alternatively, they contend that the restrictive covenant is unreasonable – and, therefore,

unenforceable. Neither argument proves persuasive.

               1. Breach

       In maintaining that no breach occurred, Defendants assert that Section 3(A)’s prohibition

on the “market[ing]” of services does not prohibit the mere “offering” of services. See MTD at

4-6. According to Ali and Beyzavi, marketing requires “advertis[ing] or engag[ing] in other

activities designed to either promote a competitive business or [one’s] own services,” and Base

One failed to allege that they engaged in such activities. See id. at 4; see also Rep. at 2

(marketing “requires the advertising and running of a competing business”). They likewise

stress that the Complaint fails to establish a link between IBM’s decision to hire Defendants and

their alleged wrongful acts. See MTD at 4.

       The distinction Defendants attempt to draw between marketing and offering is untenable.

Indeed, the dictionary defines “market” as “[t]o offer for sale.” American Heritage Dictionary

1075 (5th ed. 2011) (emphasis added); see also Merriam-Webster Online Dictionary (online ed.

2014) (defining market as “to do things that cause people to know about and want to buy

(something); to offer (something) for sale in a market”). And that is precisely what Base One

alleged: that “Defendants approached IBM to offer their services to IBM as employees on a full-

time basis.” Compl., ¶ 30 (emphasis added). Plaintiff further bolstered this count by claiming

that IBM hired Ali and Beyzavi “as a result of their overtures.” Id., ¶ 24. Nothing more is

needed. Regardless of whether Defendants “advertised” their services, Plaintiff has alleged



                                                  7
sufficient facts (taken as true) to suggest that they “marketed” their services to IBM in violation

of Section 3(A).

       In rejoinder, Ali and Beyzavi stress that neither one held a “marketing position” within

Base One. The Court is somewhat mystified as to why Defendants’ titles at Base One would

have any bearing on whether they marketed competitive services to IBM, regardless of how

narrowly or broadly the term “market” is construed. Any employee – no matter his job

description within Base One – could wrongfully engage in the marketing of competitive services

to customers, thereby breaching the restrictive covenant contained in Section 3(A).

              2. Enforceability

       Defendants’ second contention – to wit, that Section 3(A) is unenforceable if read to

prohibit the conduct alleged here – fares no better. Specifically, they assert that “Base One is

asking the court to interpret ‘market’ as synonymous with the accepting of a position with IBM,”

and that the non-compete provision, so construed, is unreasonable. See Rep. at 3.

       To begin with, Plaintiff is not asking the Court to read Section 3(A) in the expansive

manner touted by Defendants. (Nor could such interpretation be squared with any legitimate

definition of the term “market.”) Instead, the facts presented in the Complaint suggest that Ali

and Beyzavi actively induced IBM to hire them for full-time employment. As previously noted,

Plaintiff alleged that Ali and Beyzavi “approached” IBM to offer their services as full-time

employees, and that IBM hired them “as a result of their overtures.” Compl., ¶¶ 24, 30. Such

conduct cannot be described as mere acceptance of an open job position, and it is this conduct

that Plaintiff justifiably maintains violated Section 3(A).

       Setting aside Defendants’ overreaching, the Court turns to the enforceability of Section

3(A) under an appropriate construction. Agreements “that restrict an employee’s ability to



                                                  8
compete” are disfavored in New York, B.O. Tech., LLC v. Dray, 970 N.Y.S.2d 668, 673 (N.Y.

Sup. Ct. 2013), but they are not per se unenforceable. See Installed Bldg. Products, LLC v.

Cottrell, No. 13-1112, 2014 WL 3729369, at *6 (W.D.N.Y. July 25, 2014). In determining the

validity of such restrictive covenants, courts are guided by a tripartite “reasonableness” standard.

See BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388-89 (N.Y. 1999). Under the governing test,

a restraint is reasonable if it “(1) is no greater than is required for the protection of the legitimate

interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not

injurious to the public.” Id. (emphasis in original). This analysis “focuses on the particular facts

and circumstances giving context to the agreement,” see id. at 390, and, unless a provision is

impermissibly vague or plainly overbroad, often necessitates full development of the record. See

Installed Bldg., 2014 WL 3729369, at *6-8. Consequently, a determination of unenforceability

upon a motion to dismiss will often be premature. See id.

        As an initial foray, Plaintiff points out that BDO Seidman and its progeny concerned

post-employment restrictive covenants – i.e., covenants that “tend to prevent an employee from

pursuing a similar vocation after termination of employment.” B.O. Tech., 970 N.Y.S.2d at 673.

Because the “vast majority” of Defendants’ allegedly wrongful conduct occurred during their

employment with Base One, Plaintiff emphatically declares the three-pronged reasonableness

test inapposite here. See Opp. at 6; see also Compl., ¶¶ 24, 30 (asserting that Defendants

approached IBM during their employment with Base One). The Court is not so certain. Section

3(A) – as written – restricts the post-employment conduct of its employees in addition to their

actions during employment. New York law is not entirely clear as to whether employers can

circumvent the reasonableness inquiry ordinarily applicable to such clauses by seeking to hold

employees liable only for their pre-termination conduct. That question need not be definitively



                                                   9
resolved here, however, as Section 3(A) survives dismissal even if the inquiry outlined above is

assumed to be germane.

       Base One has sufficiently alleged that Section 3(A) is properly tailored to address its

legitimate business interest, satisfying the first prong of the BDO Seidman test. As a staffing and

recruiting firm, Plaintiff’s relationships with its clientele comprise its most valuable assets. See

Opp. at 2. It invests considerable time, money, and effort to recruit and staff IT personnel in

accordance with its clients’ needs. See id. A Base One employee who offers his services

directly to his assigned client “undercuts the core of Base One’s business by stealing [its] time

and energy spent, and business advantage built, on its unique skill of recruiting.” Id. Base One

thus has a legitimate interest in protecting against its employees’ “competitive use of client

relationships” that Base One enabled them to acquire through their work with and access to the

firm’s customers. BDO Seidman, 93 N.Y.2d at 392; see also B.O. Tech, 970 N.Y.S.2d at 673

(recognizing “legitimate interest in preventing former employees from exploiting or

appropriating the goodwill of a client or customer that has been created and maintained at the

employer’s expense to the employer’s competitive detriment”); DeWitt Stern Grp., Inc. v.

Eisenberg, No. 13-3060, 2014 WL 1388652, at *5 (S.D.N.Y. Apr. 9, 2014) (noting “employer’s

legitimate interest in client relationships it was instrumental in creating and fostering”).

       Section 3(A), moreover, is narrow in both time and scope. It restricts Defendants’

conduct for only one year post-employment, see Natsource LLC v. Paribello, 151 F. Supp. 2d

465, 471 (S.D.N.Y. 2001), and its prohibition on marketing applies only to those customers to

whom they were personally assigned. See BDO Seidman, 93 N.Y.2d at 391-92. Ali and Beyavi

have proffered no reason to reach a contrary conclusion.




                                                  10
       With regard to the second prong – hardship on the employee – Defendants remain on

shaky ground. Although they accuse Base One (with some exaggeration) of leaving them

“penniless” and “prevent[ing] them from pursuing a similar vocation,” MTD at 4, the narrowness

of Section 3(A) cuts against their position. Ali and Beyzavi are free to offer their IT and

engineering expertise to any company other than IBM, the only client either was assigned to, and

they are free to market their services even to IBM only one year after the termination of their

employment with Base One.

       As to the third prong of the reasonableness test, Defendants have not attempted to make

any showing that Section 3(A) is injurious to the public. Nor is the Court convinced that such an

argument, if asserted, could gain any traction. See BDO Seidman, 93 N.Y.2d at 393 (finding no

injury to the public where the restraint would not “seriously impinge” on the availability of

certain services in a region or “cause any significant dislocation in the market”). As the above

discussion makes manifest, the Court cannot hold at this juncture that Section 3(A) is

unenforceable as a matter of law.

       B. Count II: Breach of Section 3(B)

       In the second count of its Complaint, Plaintiff contends that Beyzavi and Ali breached

Section 3(B) of the Agreement, which restricted them from “solicit[ing], contact[ing],

represent[ing], or offer[ing] to represent the Company’s Full-Time Employees and/or

Independent Contractors.” Specifically, Plaintiff claims that Defendants solicited each other “by

coordinating their departure to work for IBM.” Compl., ¶ 38. Defendants, on the other hand,

maintain that “one[-]on[-]one contact between two similarly situated employees does not rise to

the level of solicitation.” Rep. at 4. According to them, the clause should apply only where a




                                                11
violator “represent[s] a competitive business” and gains “some benefit . . . from the act of

solicitation.” Id. at 5.

        This back and forth over the proper interpretation of Section 3(B) calls attention to a

more fundamental problem: its wording is so vague and ambiguous as to render it unenforceable.

The provision prohibits soliciting or contacting Base One employees and independent

contractors. But solicit or contact for what? The Agreement never says. Is an employee

prohibited from contacting another employee about health insurance? From soliciting another

employee to attend a political fundraiser? Although the Court can perhaps guess that Plaintiff

meant to prohibit solicitation or contact for the purpose of employment elsewhere, the provision

does not so specify. Particularly in light of New York’s general hostility toward restrictive

covenants in the context of employment, the Court will not redraft a poorly written, overbroad

restraint in order to render it enforceable. See Pure Power Boot Camp, Inc. v. Warrior Fitness

Boot Camp, LLC, 813 F. Supp. 2d 489, 507 (S.D.N.Y. 2011) (finding “imprecise” and

“ambiguous” non-compete provision “unenforceable as a matter of law”); Samy & Irina, Inc. v.

Berezentseva, 899 N.Y.S.2d 63 (N.Y. Sup. Ct. 2009) (dismissing claim for violation of “unclear

and ambiguous” non-compete provision). Base One’s second contractual cause of action comes

up short.

        C. Count III: Breach of Fiduciary Duty

        Plaintiff next charges that “[b]y virtue of their employment with Base One,” Ali and

Beyzavi owed the firm a fiduciary duty, which they breached by marketing themselves to IBM

for full-time employment. See Compl., ¶¶ 43-46. Asserting that they were merely “low level IT

employees” with an “arms-length business relationship” with Base One, and that a fiduciary duty

requires more, Defendants move to dismiss this claim. See MTD at 6; Rep. at 5.



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       They are wrong on the law. In New York, “an employee-employer relationship is

fiduciary,” even vis-à-vis low-level employees. Fairfield Fin. Mortgage Grp., Inc. v. Luca, 584

F. Supp. 2d 479, 485 (E.D.N.Y. 2008) (agreeing with plaintiff there “that all employees have a

fiduciary duty to their employers, regardless of their rank and the level of their position”); accord

Amphenol Corp. v. Paul, 993 F. Supp. 2d 100, 113 (D. Conn. 2014) (interpreting New York

law); Gluco Perfect, LLC v. Perfect Gluco Products, Inc., No. 14-1678, 2014 WL 4966102, at

*22 (E.D.N.Y. Oct. 3, 2014); Design Strategies, Inc. v. Davis, 384 F. Supp. 2d 649, 659-60

(S.D.N.Y. 2005). Defendants’ objection thus stumbles right out of the gate.

       D. Count VI: Unjust Enrichment

       Moving now to Count VI, Plaintiff alleges that Ali and Beyzavi were unjustly enriched at

its expense, and that “equity and good conscience militate against permitting [them] to retain the

attendant benefits.” Compl., ¶ 9. Defendants respond that the existence of the Non-Compete

Agreement precludes Base One’s quasi-contractual claim for unjust enrichment, and that, in any

event, the Complaint failed to proffer a sufficient factual basis for this claim. The Court

disagrees on both points.

       Unjust enrichment is “an amorphous cause of action, but one which falls under the

umbrella of quasi-contract, or contract implied-in-law.” Michele Pommier Models, Inc. v. Men

Women N.Y. Model Mgmt., Inc., 14 F. Supp. 2d 331, 338 (S.D.N.Y.1998), aff’d,173 F.3d 845

(2d Cir. 1999). It “contemplates an obligation imposed by equity to prevent injustice, in the

absence of an actual agreement between the parties.” Georgia Malone & Co. v. Rieder, 973

N.E.2d 743, 746 (N.Y. 2012) (internal quotation marks omitted); Maalouf v. Salomon Smith

Barney, Inc., No. 02-4770, 2003 WL 1858153, at *6 (S.D.N.Y. Apr. 10, 2003) (“Unjust

enrichment is premised on the notion that where principles of contract law are inadequate to



                                                 13
compensate an unjustly deprived party, a court should resort to principles of equity.”).

Defendants’ contention thus has some foundation: it is widely recognized that a plaintiff may not

recover on a claim for unjust enrichment where there exists a governing contract between the

parties. See Magi XXI, Inc. v. Stato Della Citta Del Vaticano, No. 07-2898, 2014 WL 2212021,

at *8 (E.D.N.Y. May 23, 2014) (“[T]he existence of a contract between parties to a dispute

ordinarily precludes recovery for unjust enrichment for events arising out of the same subject

matter as the contract.”) (internal quotation marks omitted).

       That Base One “may only recover on one claim, either contract or quasi-contract,”

however, “certainly does not preclude [it] from pleading unjust enrichment in the alternative.”

Maalouf, 2003 WL 1858153, at *7. “Both Fed. R. Civ. P. 8(e)(2) and the pleading rules of New

York State law permit the pleading of contradictory claims alleging both breach of a contract or,

in the alternative, a quasi contract.” Seiden Associates, Inc. v. ANC Holdings, Inc., 754 F. Supp.

37, 39 (S.D.N.Y. 1991). Particularly where the validity and scope of the underlying contractual

agreement is disputed, as here, Plaintiff is not “required to guess” – at the pleading stage –

“whether it will be successful on its contract . . . claims.” St. John’s Univ., New York v. Bolton,

757 F. Supp. 2d 144, 183 (E.D.N.Y. 2010); see also Net2Globe Int’l, Inc. v. Time Warner

Telecom of New York, 273 F. Supp. 2d 436, 466 (S.D.N.Y. 2003).

       Defendants have one more arrow left in their quiver. They argue that even if Base One is

permitted to plead quasi-contract in the alternative, the facts alleged do not “form a basis for an

unjust enrichment claim.” Rep. at 6. In other words, if Section 3(A) is ultimately found invalid

or otherwise inapplicable to Ali’s and Beyzavi’s conduct, they claim there would be “no

equitable basis” for recovery. Id.




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       “To prevail on a claim of unjust enrichment, a [p]laintiff must establish (1) that the

defendant benefitted; (2) at the [p]laintiff’s expense; and (3) that equity and good conscience

require restitution.” Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of New Jersey,

Inc., 448 F.3d 573, 586 (2d Cir. 2006) (quoting Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir.

2000)). “The ‘essence’ of this claim ‘is that one party has received money or a benefit at the

expense of another.’” Kaye, 202 F.3d at 616 (quoting City of Syracuse v. R.A.C. Holding, Inc.,

685 N.Y.S.2d 381, 381 (N.Y. App. Div. 1999)).

       Drawing all reasonable inferences in Base One’s favor, the Court concludes that it has set

forth a cognizable claim. According to the Complaint, Defendants intentionally misappropriated

the relationship and good will between IBM and Base One in a manner that inured to their

personal benefit via their new contract with IBM. See Compl., ¶¶ 22-25, 30-31, 49, 60; see N.

Shipping Funds I, LLC v. Icon Capital Corp., 998 F. Supp. 2d 301, 330 (S.D.N.Y. 2014)

(“Unjust enrichment claims are not limited to tangible monetary enrichment, but also include the

receipt of an intangible benefit at the expense of another.”). This benefit was clearly acquired at

Plaintiff’s expense: it had invested a great deal of time and effort in cultivating its relationship

with IBM and providing it with qualified IT staff to satisfy its needs. See id., ¶¶ 9-12.

Defendants’ actions, moreover, resulted in the loss of substantial revenue for the firm. See id.,

¶¶ 9, 61. Inasmuch as Plaintiff, at this juncture, need only provide a short and plain statement

articulating a plausible claim for unjust enrichment, see Twombly, 127 S. Ct. at 1975; Fed. R.

Civ. P. 8, the Court finds it has met that burden.

       E. Count VII: Faithless Servant

       Count VII invokes the faithless-servant doctrine. Although seemingly plucked from the

mouldering pages of a Victorian novel, that cause of action appears alive and well in 21st century



                                                  15
New York. See Webb v. Robert Lewis Rosen Associates, Ltd., No. 03-4275, 2003 WL

23018792, at *6 (S.D.N.Y. Dec. 23, 2003) (“Defendants’ attempt to demonstrate that the

faithless servant doctrine is no longer recognized or is inapposite is unavailing.”), aff’d, 128 F.

App’x 793 (2d Cir. 2005). Under that state’s law, an employee “is obligated ‘to be loyal to his

employer and is prohibited from acting in any manner inconsistent with his agency or trust and is

at all times bound to exercise the utmost good faith and loyalty in the performance of his

duties.’” Phansalkar v. Anderson Weinroth & Co., LP, 344 F.3d 184, 200 (2d Cir. 2003)

(quoting W. Elec. Co. v. Brenner, 41 N.Y.2d 291, 295 (N.Y. 1977)). A faithless employee

forfeits the right to compensation during the period of disloyalty. See Henry v. Concord

Limousine, Inc., No. 13-0494, 2014 WL 297303, at *4 (E.D.N.Y. Jan. 24, 2014).

        Plaintiff contends that Ali and Beyzavi acted “in direct contravention of their duty of

loyalty” by offering their own competitive services to IBM during their employment with Base

One, thereby exploiting the access Plaintiff had given them to its customers. See Compl., ¶ 64.

Defendants, for their part, maintain that Base One cannot successfully make out a faithless-

servant claim – for one reason only. According to them, such claims require an allegation that

the employee used the employer’s “time, facilities, or proprietary secrets in commission of

offensive acts,” and Base One did not so allege. See Rep. at 6; see also MTD at 8. Ali and

Beyzavi rest their theory of the doctrine on a single case, Fada Int’l Corp. v. Cheung, 57 A.D.3d

406 (N.Y. App. Div. 2008).

        Fada International does, on its face, provide some support for Defendants’ view. There,

the court affirmed the dismissal of a claim for breach of the duty of loyalty since there was no

allegation that “defendants used plaintiff’s time, facilities or proprietary secrets in setting up their

new business.” Id. at 406. But the faithless-servant doctrine is robustly applied in New York,



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and many decisions expounding on the doctrine make no mention of this alleged imperative at

all. See, e.g., Carco Grp. v. Maconachy, 383 F. App’x 73, 77 (2d Cir. 2010); Phansalkar, 344

F.3d at 200-04; Sanders v. Madison Square Garden, LP, No. 06-589, 2007 WL 1933933, at *3

(S.D.N.Y. July 2, 2007); Webb, 2003 WL 23018792, at *6; W. Elec. Co. v. Brenner, 41 N.Y.2d

at 295; Feiger v. Iral Jewelry, Ltd., 41 N.Y.2d 928, 928, 394 (1977) (citing Restatement (Second)

of Agency (1958), § 469); see also 52 N.Y. Jur. 2d Employment Relations § 148 (expounding

upon faithless-servant doctrine with no reference to these requirements).

       Even decisions that do specifically refer to misuse of time, facilities, or proprietary

secrets cannot, as a general matter, be read to create an inflexible pleading prerequisite. Rather,

courts appear to invoke this triumvirate as illustrative of the sort of breaches of loyalty that might

be deemed faithlessness. In Pure Power Boot Camp, for example, the court emphasized that an

employee “is forbidden from obtaining an improper advantage at the principal’s expense.” 813

F. Supp. 2d at 521. Continuing, the court stated:

               Although an employee may, of course, make preparations to
               compete with his employer while still working for the employer,
               he or she may not do so at the employer’s expense, and may not
               use the employer’s resources, time, facilities, or confidential
               information; specifically, whether or not the employee has signed
               an agreement not-to-compete, the employee, while still employed
               by the employer, may not solicit clients of his employer . . . .

Id. at 521-22; see also Derven v. PH Consulting, Inc., 427 F. Supp. 2d 360, 371 (S.D.N.Y. 2006)

(“It is well established that an employee is prohibited from acting in any manner inconsistent

with his or her employment and must exercise good faith and loyalty in performing his or her

duties and may not use his or her principal’s time, facilities or proprietary secrets to build a

competing business.”) (internal quotation marks omitted and emphasis added).




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       This Court will not superimpose a rigid gloss on the faithless-servant doctrine that the

New York courts have not, in the mine run of cases, seen fit to require. Defendants’ sole

objection thus fails, and Plaintiff’s claim survives dismissal.

       F. Count VIII: Injunctive Relief

       Base One advances a claim for “injunctive relief” as its final cause of action. See

Compl., ¶¶ 66-70. Injunctive relief, however, is not a freestanding cause of action, but rather –

as its moniker makes clear – a form of relief to redress the other claims asserted by Plaintiff. See

Guttenberg v. Emery, No. 13-2046, 2014 WL 1989564, at *6 (D.D.C. May 16, 2014) (“Count II

of plaintiffs’ amended complaint is not a separate cause of action or claim; rather, it is a request

that the Court grant a particular form of relief (an injunction) . . . .”). The Court will thus dismiss

Count VIII as a separate claim. See Fitts v. Fed. Nat. Mortgage Ass’n, 44 F. Supp. 2d 317, 330

(D.D.C. 1999) (“[T]he court strikes Count Five of the complaint as it states a form of relief and

not a cause of action.”), aff’d, 236 F.3d 1 (D.C. Cir. 2001).

       This revision, however, is procedural rather than substantive – that is, it does not preclude

Base One from seeking injunctive relief in the event that it ultimately prevails on one or more of

its claims. See Guttenberg, 2014 WL 1989564, at *6 & n.5. Insofar as Defendants attack the

substantive basis for such relief, it is premature at this stage to consider the propriety of any

particular remedy. Should that question become relevant at a later point in the litigation, the

Court will consider the parties’ arguments at that time.




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IV.    Conclusion

       For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss as to

Counts Two, Four, Five, and Eight of Plaintiff’s Complaint, but deny it as to the remaining

counts. An Order consistent with this Opinion shall issue this day.

                                                    /s/ James E. Boasberg
                                                    JAMES E. BOASBERG
                                                    United States District Judge

Date: January 20, 2015




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