United States District Court, D. Nebraska
CDM INVESTMENT GROUP, INC., a Nebraska Corporation; and AIRTITE, INC., a Nebraska Corporation; Plaintiffs,
DUSTIN SANDOVAL, IVAN MEIRING, and INTEGRATED SPECIALTY CONTRACTORS, LLC, an Illinois Limited Liability Company; Defendants.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
the Court are the Findings and Recommendation of Magistrate
Judge Susan M. Bazis, ECF No. 40, recommending that the
Motion to Remand, ECF No. 30, filed by Plaintiffs CDM
Investment Group, Inc. (CDM), and Airtite, Inc., doing
business as E&K of Chicago (E&K), be denied. The
parties filed no objections to the Magistrate Judge's
Findings and Recommendation and the Court adopts them in
their entirety. Also before the Court is the Motion to
Dismiss or, in the Alternative, to Transfer, ECF No. 18,
filed by Defendants Dustin Sandoval, Ivan Meiring, and
Integrated Specialty Contractors, LLC. For the reasons stated
below, the Motion to Dismiss will be granted.
following facts are those contained in the parties'
briefs supported by citations to the pleadings, affidavits,
and exhibits, and any factual disputes are, for purposes of
this Motion, resolved in favor of Plaintiffs.
is a subsidiary of E&K Companies, Inc., which is a
subsidiary of CDM. Each is a Nebraska corporation, and CDM
and Airtite are in the construction and project management
industry. E&K maintains an office in Elmhurst,
Illinois. Sandoval began his employment with both
E&K and CDM on July 1, 2001, and Meiring began his
employment with the companies on April 4, 2012. Throughout
their employment with E&K and CDM, Sandoval and Meiring
resided and worked in Illinois, but occasionally made
work-related trips to Nebraska. Meiring attended several
education committee meetings in Nebraska between April 2014
and October 2015. Sandoval traveled to Nebraska for training,
participated in management phone calls with Nebraska
personnel, and attended education committee meetings in
Nebraska. They also “contacted persons in Nebraska for
IT and administrative support with CDM.” Pl.'s Br.,
ECF No. 33, Page ID 312.
beginning of their employment, Sandoval and Meiring were
required to enter into Confidentiality and Conflict of
Interest Agreements, and when each of them eventually
purchased shares of CDM, they entered into Shareholder
Buy-Sell Agreements. Sandoval Confidentiality Agr., ECF No.
9-1, Page ID 96; Meiring Confidentiality Agr., ECF No. 9-1,
Page ID 81; Sandoval Shareholder Agr., ECF No. 9-1, Page ID
85; Meiring Shareholder Agr., ECF No. 9-1, Page ID 71.
achieved the positions of Chief Procurement Officer for CDM
and Vice President of Sales for E&K. Meiring became the
Senior Estimator/Sales Manager and managed E&K's
employees. They both voluntarily resigned their positions on
January 22, 2018, to begin working at a competing
construction company they formed in September 2017 called
Integrated Specialty Contractors, LLC (Integrated).
Integrated is an Illinois limited liability company and has
its principal place of business in Illinois.
Sandoval and Meiring resigned their positions and began
working at Integrated, Plaintiffs initiated this action. They
asserted claims for breach of contract against Sandoval and
Meiring and breach of fiduciary duty against Sandoval,
Meiring, and Integrated. These claims are based on
Sandoval's and Meiring's creation of, and current
employment with, a competing company-Integrated-while they
were still employees of Plaintiffs and shareholders of CDM.
In Defendants' pending Motion, they ask the Court to
dismiss this action under Federal Rule of Civil Procedure
12(b)(2) because they are not subject to personal
jurisdiction in Nebraska. In the alternative, Defendants ask
that this case be transferred to the Northern District of
Illinois under 28 U.S.C. § 1404(a).
OF REVIEW 
challenged, ‘the plaintiff bears the burden to show
that jurisdiction exists.” Aly v. Hanzada for Imp.
& Exp. Co., LTD, 864 F.3d 844, 848 (8th Cir. 2017)
(quoting Fastpath, Inc. v. Arbela Techs. Corp., 760
F.3d 816, 819 (8th Cir. 2014)). “To successfully
survive a motion to dismiss challenging personal
jurisdiction, a plaintiff must make a prima facie showing of
personal jurisdiction over the challenging defendant.”
Fastpath, 760 F.3d at 820 (citing K-V Pharm. Co.
v. J. Uriach & CIA, S.A., 648 F.3d 588, 591 (8th
Cir. 2011)). “A plaintiff's prima facie showing
‘must be tested, not by the pleadings alone, but by
affidavits and exhibits supporting or opposing the
motion.” Fastpath, 760 F.3d at 820 (internal
quotations omitted). If no hearing is held, the evidence must
be viewed “in a light most favorable to the
plaintiff” and factual disputes are resolved in the
plaintiff's favor. Id. Plaintiffs cannot shift
the burden of proof to the party challenging jurisdiction.
Court will grant Defendants' Motion to Dismiss because
Plaintiffs have failed to make a prima facie showing of
personal jurisdiction over Defendants.
determining whether personal jurisdiction over a nonresident
defendant exists, the Court must determine whether: (1) the
requirements of Nebraska's long-arm statute, Neb. Rev.
Stat. § 25-536,  are satisfied; and (2) the exercise of
jurisdiction is permitted by the Due Process Clause of the
Fourteenth Amendment. See Coen v. Coen, 509 F.3d
900, 905 (8th Cir. 2007). Because § 25-536 extends
jurisdiction over nonresident defendants to the fullest
degree allowed by the Due Process Clause, Pecoraro v. Sky
Ranch for Boys, Inc., 340 F.3d 558, 561 (8th Cir. 2003),
the Court need only determine whether the assertion of
jurisdiction offends constitutional limits.
Supreme Court “recognize[s] two types of personal
jurisdiction: ‘general' (sometimes called
‘all-purpose') jurisdiction and
‘specific' (sometimes called
Bristol-Myers Squibb Co. v. Superior Court, 137
S.Ct. 1773, 1779-80 (2017) (citing Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011));
see also BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549,
1558 (2017). “‘Specific' or
‘case-linked' jurisdiction ‘depends on an
affiliation[n] between the forum and the underlying
controversy . . . .'” Walden v. Fiore, 571
U.S. 277, 283 n.6 (2014) (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
“This is in contrast to ‘general' or
‘all purpose' jurisdiction, which permits a court
to assert jurisdiction over a defendant based on a forum
connection unrelated to the underlying suit (e.g.,
domicile).” Walden, 571 U.S. at 283 n.6. Under
either theory, due process requires ...