IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

NORDISK SYSTEMS, INC., an Oregon No. 03:15-cv-01540-HZ

corporation, 

Plaintiff,

v. OPINION & ORDER

SIRIUS COMPUTER SOLUTIONS, INC., a

Texas corporation, 

Defendant.

Robert E. Maloney, Jr.

Brian T. Kiolbasa

LANE POWELL, PC

601 S.W. Second Avenue, Suite 2100

Portland, Oregon 97204-3158

Attorneys for Plaintiff

Robert Spajic

GORDON & POLSCER, LLC

9755 S.W. Barnes Road, Suite 650

Portland, Oregon 97225

1 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 1 of 12
Christine E. Reinhard

SCHMOYER REINHARD, LLP

17806 IH 10 West, Suite 400

San Antonio, Texas 78257

Attorneys for Defendant

HERNANDEZ, District Judge:

Plaintiff Nordisk Systems, Inc. brings claims of intentional interference with economic

relations and abuse of process against Defendant Sirius Computer Solutions, Inc. Defendant

moves to dismiss, arguing that Plaintiff fails to establish prudential standing, and alternatively,

fails to state a claim. Because I agree with Defendant on the standing issue, I grant the motion. 

BACKGROUND

Plaintiff alleges that Plaintiff and Defendant are direct competitors in the IT marketplace. 

First Am. Compl. at ¶ 6. Third-party Jason Sparks, currently employed by Plaintiff, was formerly

employed by Defendant. Id. at ¶¶ 8-10. During his employment with Defendant, Sparks may or

may not have been subject to a Non-Solicitation Agreement with Defendant. Id. at ¶ 10 (alleging

that Plaintiff and Sparks, in communications with Defendant in summer 2015, denied that Sparks

was obligated to the terms of a non-solicitation and non-competition agreement with Defendant);

¶ 12 (alleging that Defendant and Sparks had agreed that Sparks would not be subject to any noncompetition or non-solicitation agreement); see also Ex. 1 to First Am. Compl. (copy of unsigned

agreement). After Sparks began working for Plaintiff, Defendant commenced an action against

Sparks in Texas, which was initially filed in state court and then removed to the United States

District Court, Western District of Texas. Id. at ¶ 11. In that action, Defendant has sought to

enforce the terms of the Non-Solicitation Agreement. Id. at ¶ 12. Defendant sought a temporary

2 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 2 of 12
restraining order (TRO), which the state court initially granted, ex parte, on August 6, 2015. Id.

at ¶ 14; Ex. 2 to First Am. Compl.1 

Plaintiff alleges that the TRO went beyond the terms of the Non-Solicitation Agreement

by prohibiting Sparks from soliciting, diverting, calling upon, etc., "prospective clients" of

Defendant's. Id. at ¶¶ 15, 16; see also id. at ¶ 17 (alleging that the TRO "enforced an alleged

agreement that was disputed and void, and was overbroad because it included the following

terms of the alleged agreement that were not in it - 'prospective customer or client of Sirius.'"). 

According to Plaintiff, Sparks was required to comply with the TRO and Plaintiff, as Sparks's

current employer, was aware of the TRO and was "prevented from having Sparks engage in

business with actual or potential customers." Id. at ¶ 17.

Based on these allegations, Plaintiff brings two claims. First, in support of an intentional

interference with economic relations claim, Plaintiff contends that it has a contractual

relationship with Sparks, that Defendant is not a party to that contract, that Defendant has

intentionally interfered with Plaintiff's contract with Sparks by obtaining the TRO which restricts

Sparks's relationship with any customer or "prospective customer or client" of Defendant's, and

1

 According to the docket in the Texas litigation, the parties voluntarily continued the

TRO until the Court ruled on Sirius's motion for preliminary injunction, which it did on October

5, 2015. Sirius Comput. Solutions v. Sparks, No. 05-15-cv-698-DAE, ECF No. 9 (Joint Mot. to

Continue; granted in unnumbered "Text Order' dated Aug. 28, 2015); ECF No. 38 (Order

Granting Preliminary Injunction). Although the docket in the Texas case is not part of the record

here, judicial notice of the actions taken by the Western District of Texas is appropriate. Fed. R.

Civ. P. 201(b) (allowing judicial notice of facts capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned); Smith v. Duncan, 297 F.3d

809, 815 (9th Cir. 2001) (court took judicial notice of state court documents which had a direct

relationship to the appeal and were not subject to reasonable dispute), overruled on other

grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005). I do not consider any factual findings

contained in the documents but only the existence and nature of the Court's orders. 

3 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 3 of 12
that Defendant's actions were accomplished through improper means or for an improper purpose

because the TRO that Defendant sought and obtained was invalid, and alternatively, because the

TRO was broader then the terms of the Non-Solicitation Agreement and "rendered Sparks unable

to perform the job duties for Nordisk he was hired to perform." Id. at ¶¶ 19-23. As a result of

Defendant's actions, Plaintiff alleges that it has suffered damages "in an amount to be proven at

trial," including the wages paid to Sparks during the time he was restrained from performing his

job duties for Plaintiff and for the loss of profits from sales that Sparks generally made each

month based upon his past performance in the industry. Id. at ¶ 24. Plaintiff alleges that

Defendant knew the Non-Solicitation Agreement was void and the terms Defendant sought to

enforce were overbroad but Defendant intentionally and recklessly continued to maintain the

TRO with overbroad terms until the entry of a preliminary injunction. Id. at ¶ 25. 

Plaintiff's second claim is for abuse of process. There, Plaintiff alleges that Defendant

obtained the TRO to enforce an invalid agreement with overbroad terms which then had the

effect of improperly restraining Sparks from performing his job duties. Id. at ¶ 28. According to

Plaintiff, Defendant obtained the TRO without notice to Sparks or Plaintiff, despite knowing that

Plaintiff had counsel and that Plaintiff would be directly affected by the TRO. Id. at ¶ 29. By

obtaining the TRO without notice to Sparks or Plaintiff, Defendant was allegedly acting with an

ulterior purpose of hampering, restraining, and obstructing Plaintiff from engaging in its regular

business activities through its employees, and in turn, improperly restricting Plaintiff's ability to

compete with Defendant in the marketplace. Id. at ¶ 30. Plaintiff contends Defendant's actions

were willful and were outside the proper scope of the process it was entitled to under the NonSolicitation Agreement because Defendant sought and obtained relief that it was not entitled to

4 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 4 of 12
under that agreement. Id. at ¶ 31. Plaintiff alleges that Defendant has filed burdensome and

vexatious litigation in Texas against Sparks which has created an unnecessary burden and

distraction to the business of Plaintiff and its employees, including Sparks, and has caused

damage to Plaintiff "as described." Id. at ¶ 32. 

STANDARDS

Defendant notes that questions regarding standing have been evaluated under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). Compare Elizabeth Retail Props., LLC v.

KeyBank Nat. Ass'n, 83 F. Supp. 3d 972, 985-86 (D. Or. 2015) ("While constitutional standing is

evaluated under Rule 12(b)(1), prudential standing is evaluated under Rule 12(b)(6)") with

Hampton v. Steen, No. 02:12-cv-00470-AA, 2014 WL 5496454, at *7 (D. Or. Oct. 28, 2014)

(analyzing prudential standing argument under Rule 12(b)(1)); see also Cetacean Cmty. v. Bush,

386 F.3d 1169, 1175 (9th Cir. 2004) (explaining in regard to "statutory standing," "[i]f a plaintiff

has suffered sufficient injury to satisfy the jurisdictional requirement of Article III but Congress

has not granted statutory standing, that plaintiff cannot state a claim upon which relief can be

granted" and, "[i]n that event, the suit should be dismissed under Rule 12(b)(6)"); Or. Advocacy

Ctr. v. Mink, 322 F.3d 1101, 1108 (9th Cir. 2003) (indicating that the prudential component of

standing "precludes the exercise of federal [subject matter] jurisdiction even where the Court's

'irreducible minimum' requirements have been met."). 

Here, Defendant raises only a prudential standing argument. In this particular case where

I do not consider facts outside of those pleaded in the First Amended Complaint or those

properly subject to judicial notice, it makes no difference whether I consider the prudential

standing argument under Rule 12(b)(1) or Rule 12(b)(6). 

5 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 5 of 12
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the claims. Navarro v.

Block, 250 F.3d 729, 732 (9th Cir. 2001). "All allegations of material fact are taken as true and

construed in the light most favorable to the nonmoving party." Am. Family Ass'n, Inc. v. City &

Cnty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). However, the court need not accept

conclusory allegations as truthful. See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136,

1139 (9th Cir. 2003) ("[W]e are not required to accept as true conclusory allegations which are

contradicted by documents referred to in the complaint, and we do not necessarily assume the

truth of legal conclusions merely because they are cast in the form of factual allegations")

(internal quotation marks, citation, and alterations omitted).

A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the

"grounds" of his "entitlement to relief" with nothing "more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action[.]" Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the

speculative level on the assumption that all the allegations in the complaint are true (even if

doubtful in fact)[.]" Id. (citations and footnote omitted).

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[,]" meaning "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)

(internal quotation marks omitted). Additionally, "only a complaint that states a plausible claim

for relief survives a motion to dismiss." Id. at 679. A complaint must contain "well-pleaded

facts" which "permit the court to infer more than the mere possibility of misconduct[.]" Id. at

6 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 6 of 12
679.

DISCUSSION

"[P]rudential standing [] embodies judicially self-imposed limits on the exercise of

federal jurisdiction." Renx Grp., LLC v. US Bank as Successor Tr. to Bank of Am., NA, No.

03:15-cv-01187-PK, 2015 WL 6445044, at *3 (D. Or. Oct. 23, 2015) (internal quotation marks

omitted); see also City of Los Angeles v. Cty. of Kern, 581 F.3d 841, 845 (9th Cir. 2009) ("there

exists a body of 'judicially self-imposed limits on the exercise of federal jurisdiction,' . . .

commonly referred to as 'prudential' standing[.]") (quoting Allen v. Wright, 468 U.S. 737, 751,

(1984)). "Prudential standing generally requires the plaintiff[']s claim to be based on its own

legal rights, as opposed to those of a third-person[.]" Renx Grp., 2015 WL 6445044, at *3. 

The Ninth Circuit recently explained that

courts have treated the limitation on third-party standing as a prudential principle

that requires plaintiffs to assert their own legal rights. Even when the plaintiff has

alleged injury sufficient to meet the ‘case or controversy’ requirement, the

Supreme Court has held that the plaintiff generally must assert his own legal

rights and interests, and cannot rest his claim to relief on the legal rights or

interests of third parties. This rule ensures that plaintiffs possess such a personal

stake in the outcome of the controversy as to assure that concrete adverseness

which sharpens the presentation of issues upon which the court so largely depends

for illumination of difficult constitutional or statutory questions.

Ray Charles Found. v. Robinson, 795 F.3d 1109, 1118-19 (9th Cir. 2015) (citations, brackets,

internal quotation marks, and footnote omitted); see also Mills v. United States, 742 F.3d 400,

407 (9th Cir. 2014) ("Courts typically decline to hear cases asserting rights properly belonging to

third parties rather than the plaintiff") ( internal quotation marks omitted). 

Defendant argues that Plaintiff lacks prudential standing to bring both the intentional

interference and abuse of process claims because the TRO at issue was issued as to Sparks only

7 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 7 of 12
and did not prohibit or apply to Nordisk as a company or to any of its other employees. 

Defendant argues that any contention that the TRO was overly broad lies only with Sparks - the

party against whom the TRO was issued. According to Defendant, to the extent Sparks believed

the TRO was overly broad or achieved without proper notice, Sparks had a method in the Texas

litigation to seek or modify the TRO. Defendant argues that Nordisk should not be allowed to

"conduct an end-run around the standing rules by raising a complaint in Sparks' place that he

otherwise had the ability to raise but did not." Def.'s Mot. at 4-5. As Defendant puts it, both of

Plaintiff's claims are based on the "third-party" theory that the TRO that issued against Sparks

was overly broad and thus, impacted his ability to perform work on behalf of Nordisk. 

Plaintiff argues that it asserts its own rights, not those belonging to Sparks. Plaintiff

insists it is not attempting to claim that Sparks himself was harmed by the TRO. Instead, it seeks

damages in the form of wages it paid to Sparks under his contract with Plaintiff during a time

Sparks was unable to work on sales to Plaintiff's actual or prospective customers because they

could also be an actual or prospective customer of Defendant's. Pl.'s Resp. at 5-6.2

 Plaintiff also

seeks damages from sales that Sparks would have made for Plaintiff's benefit if he had not been

improperly restrained by the TRO. Id. at 6. Plaintiff argues that it has prudential standing

because it limits its claims to the specific improper conduct affecting its employment contract

relationship with Plaintiff as alleged in its First Amended Complaint. Id. 

In support, Plaintiff cites to Bancard Services, Inc. v. E*Trade Accces, Inc., 292 F. Supp.

2

 This is not an entirely accurate statement because the TRO prohibited Sparks from

soliciting, contacting, etc., Sirius's customers, clients, or prospective customers only if they had

been a customer, client, or prospective customer within two years of Sparks's separation from

employment with Sirius, and importantly, only if they had had business and direct personal

contact with Sparks while he was employed by Sirius. Ex. 2 to First Am. Compl. at 3. 

8 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 8 of 12
2d 1235 (D. Or. 2003), where Judge Hubel, in a Findings & Recommendation adopted by Judge

Marsh, addressed whether the plaintiffs had both constitutional and prudential standing to seek a

declaratory judgment regarding the validity of contracts entered into between the defendant and

third parties. The plaintiffs and the defendant were competitors in the ATM industry. The

defendant was a party to ATM service agreements with businesses across the country. The

agreements contained a renewal provision that the plaintiff contended was invalid under Oregon

law. At the time litigation commenced, several businesses had signed service agreements with

the plaintiffs and the defendant was threatening litigation as to the businesses it had previously

been servicing.

After concluding that the plaintiffs met the requirements for constitutional standing,

Judge Hubel found that the plaintiffs had prudential standing as well. Id. at 1244. Judge Hubel

relied on two notable facts. First, because the plaintiffs were attempting to compete and the

competition was being stifled by an allegedly illegal contract, he found that the plaintiffs were

asserting their own rights and were not resting their claims on the legal rights or interests of third

parties. Id. Second, because the plaintiffs had agreed to indemnify at least one of the third-party

businesses, the plaintiffs inserted their own obligations and rights into the relationship between

the defendant and its customers. Id. 

I agree with Defendant that Bancard is distinguishable. There is no assertion here that

Plaintiff has agreed to indemnify Sparks or otherwise entered into an agreement with Sparks

giving Plaintiff a superior right to Sparks in regard to the TRO. Also, while Plaintiff and

Defendant here are business competitors, like the plaintiff and the defendant in Bancard, the

agreement at issue there addressed site locations for ATM servicing and thus, the competition for

9 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 9 of 12
that business was, in essence, a fight between the plaintiff and defendant. In contrast, here, the

TRO restrains Sparks from maintaining or developing customer relationships on behalf of

Plaintiff if those customers were clients, customers, or prospective customer's of Defendant's

with whom Sparks had a relationship while he worked for Defendant. The TRO does not restrain

competition between Plaintiff and Defendant here. It restrains Sparks only and only as to certain

customers. Bancard is distinguishable.

Defendant relies on cases holding that for abuse of process claims, the process must be

issued directly against the abuse-of-process plaintiff and thus, Plaintiff here cannot maintain that

claim. Meza v. Meza, No. SA CV 12-01777-GAF, 2013 WL 2338126, at *11 (C.D. Cal. May

25, 2013) (under California law, mother of child lacked standing to bring abuse of process claim

based on a conservatorship obtained by the defendants when conservatorship implicated only the

rights of the child who was over 18 and the plaintiff did not have custody of the child nor was

she the child's guardian; as such, the plaintiff suffered no personal injury to a legally protected

interest when the conservatorship proceeding was initiated and granted); aff'd, 617 F. App'x 816

(9th Cir. 2015); RRR Farms, Ltd. v. Am. Horse Prot. Ass'n, 957 S.W.2d 121, 133-34 (Tex. App.

1997) (under Texas law, plaintiff could not maintain abuse of process claim against defendant

when plaintiff was not a party to the original action and was not served with process).3

 

3

 In First Interstate Bank of Or., N.A. v. Nat'l Bank & Trust Co. of Norwich, N.A., Nos.

88-558, 88-559, 1990 WL 54529 (D. Or. Apr. 12, 1990), Judge Frye found that a nonrecipient of

the process at issue had standing to bring an abuse of process claim. That case is not controlling. 

First, Judge Frye applied New York, not Oregon, law. Second, the process at issue was an order

directing First Interstate Bank to transfer trust assets of which the plaintiff was an income

beneficiary. Thus, while the plaintiff was not a recipient of the process, she had a direct

relationship to the property subject to the order. That is not the case here. Third, given the

nature of the order and the status of the plaintiff, Judge Frye concluded that the plaintiff was a

target of the process. In contrast, Plaintiff here is not the target of the TRO. 

10 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 10 of 12
Further replying to Plaintiff's arguments, Defendant notes that the TRO did not prevent

Sparks, and by extension Plaintiff, from working at all. It limited Sparks only as to customers of

Plaintiff's who had been clients, customers, or potential customers of Defendant's and only as to

those whom Sparks had a relationship with during his employment with Defendant. Defendant

notes that the TRO did not prevent Sparks from working at all or in other competitive activities. 

It did not prevent Plaintiff from having its other employees who were not so restrained, solicit

business from any customers it thought fell under the "prospective customer" language. 

Defendant contends that given the TRO language, even with the "prospective customer" restraint,

Plaintiff cannot assert that it was "left unable to continue its operations or to compete in the

marketplace." Pl.'s Resp. at 7. 

I agree with Defendant that Plaintiff lacks prudential standing as to both of its claims. 

The TRO is not personal to Plaintiff. It is directed to Sparks. While it may have had a collateral

effect on any future employer of Sparks who competes with Sirius for customers, the purpose of

the TRO was to restrain Sparks. The TRO did not stop Plaintiff from continuing its business. 

The TRO did not even stop Plaintiff from soliciting Sirius's customers or prospective customers. 

Plaintiff could solicit all customers - only Sparks was limited and other sales persons working for

Plaintiff would have no limitation. The only person restrained was Defendant's former employee

pursuant to a contract between Defendant and that employee. Plaintiff was irrelevant. As a

result, any harm suffered by Plaintiff was only a byproduct of the TRO directed to Sparks. See

Renx Grp., 2015 WL 6445044, at *4 ("The [prudential standing] rule applies even where the

plaintiff is negatively affected by an allegedly illegal act that violates only a third party's rights"). 

That derivative harm is insufficient to satisfy the prudential standing requirement. The rights at

11 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 11 of 12
issue here belong to Sparks, not to Plaintiff. Accordingly, Plaintiff lacks prudential standing to

bring either of its claims.

Given my conclusion on the standing issue, I decline to address Defendant's alternative

failure to state a claim arguments.

CONCLUSION

Defendant's motion to dismiss [30] is granted. Plaintiff's Request for Judicial Notice [33]

of the Texas Court's Order Amending the Order of Preliminary Injunction, is denied as moot as

that Order is not relevant to the resolution of the instant motion and was not considered. 

IT IS SO ORDERED.

Dated this day of , 2015

 

Marco A. Hernandez

United States District Judge

12 - OPINION & ORDER

Case 3:15-cv-01540-HZ Document 39 Filed 12/28/15 Page 12 of 12