United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT
matter comes before the court on the Motion of Defendant
Schlumberger Technology Corporation to Dismiss Counts 3 and 4
of the First Amended Complaint [Doc. #66]. For the reasons
discussed below, the motion is granted.
matter relates to a License Agreement between H&P and
Omron Oilfield & Marine, Inc., concerning certain
software developed for use in the oil industry. The License
Agreement granted H&P a right to use and modify the
software in the conduct of H&P's customary rig
leasing service and business. See generally [Doc.
#64-1]. Additionally, section 3 of the License Agreement
included a non-solicitation provision, which stated:
[H&P] and its Affiliates will not actively solicit any
former (i.e., within two (2) years of their departure from
[Omron] or its Affiliates) or current employee or individual
contractor of [Omron] or its Affiliates or their predecessors
for purposes of assisting [H&P] or its Affiliates in any
manner in connection with developing hardware or software
that competes with the Software or Licensor Hardware.
Notwithstanding the foregoing, [H&P] and its Affiliates
shall not be precluded from (i) hiring an employee who
independently approaches them, or (ii) conducting general
recruiting activities, such as participation in job fairs or
publishing advertisements in publications or on Web sites for
[Doc. #64-1, p. 5] (“Non-Solicitation
Provision”). Omron was acquired by Schlumberger in June
claims that, on June 16, 2017, Schlumberger wrongfully
revoked the License Agreement based on H&P's alleged
active solicitation of Schlumberger employees Fergus Hopwood
and Philip Martin to develop competitive software. [Doc #64,
¶ 20]. As a result, on June 22, 2017, H&P initiated
litigation in this court asserting four counts: (1) breach of
contract; (2) declaratory judgment that the Non-Solicitation
Provision, as interpreted by Schlumberger, violates
Oklahoma's restraint of trade statute (15 O.S. §
217), the Sherman Act (specifically, 15 U.S.C. § 1), and
the Oklahoma Antitrust Reform Act (specifically 79 O.S.
§ 203(A)); (3) violation of § 1 of the Sherman Act;
and (4) violation of § 203(A) of the Oklahoma Antitrust
Reform Act. Schlumberger moved to dismiss H&P's
Complaint and, on September 8, 2017, this court granted
Schlumberger's motion to dismiss in part, denied the
motion in part, and granted H&P the opportunity to amend.
September 22, 2017, H&P filed the Amended Complaint,
which asserts four counts: (1) breach of contract; (2)
declaratory judgment that H&P has not violated the
Non-Solicitation Provision, and that Schlumberger's
attempted revocation of the License Agreement is invalid; (3)
declaratory judgment that Schlumberger's interpretation
of the Non-Solicitation Provision violates § 203(A) of
the Oklahoma Antitrust Reform Act; and (4) declaratory
judgment that the Non-Solicitation Provision violates
Oklahoma's restraint of trade statute. [Doc. #64].
Schlumberger moves to dismiss count three and count four of
the First Amended Complaint pursuant to Fed.R.Civ.P.
Motion to Dismiss Standard
Rule of Civil Procedure 12(b)(6) permits a court to dismiss a
claim that “fail[s] to state a claim upon which relief
can be granted.” “To survive a motion to dismiss
under Rule 12(b)(6), a plaintiff must plead sufficient
factual allegations ‘to state a claim to relief that is
plausible on its face.'” Brokers' Choice of
Am., Inc. v. NBC Universal, Inc., 1 F.3d 1081');">861 F.3d 1081, 1104
(10th Cir. 2017) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “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.'” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “Mere
‘labels and conclusions' and ‘a formulaic
recitation of the elements of a cause of action' are
insufficient.” Estate of Lockett ex rel. Lockett v.
Fallin, 1 F.3d 1098');">841 F.3d 1098, 1107 (10th Cir. 2016) (quoting
Twombly, 550 U.S. at 555). “Dismissal is
appropriate if the law simply affords no relief.”
Commonwealth Prop. Advocates, LLC v. Mortg. Elec.
Registration Sys., Inc., 68');">68');">68');">680 F.3d 1194');">68');">68');">68');">680 F.3d 1194, 1202 (10th Cir.
considering a Rule 12(b)(6) motion to dismiss, the court may
consider “not only the complaint, but also the attached
exhibits and documents incorporated into the complaint by
reference.” Id. at 1201.
moves to dismiss count 3 and count 4 of the Amended
Complaint. The court will separately consider each count.
Count 3 - Declaratory Judgment that Schlumberger's
Interpretation of the Non-Solicitation Provision of the
License Agreement and Revocation Violates 79 O.S. §
203(A), title 79 of the Oklahoma statutes, part of the
Oklahoma Antitrust Reform Act, declares “[e]very act,
agreement, contract, or combination in the form of a trust,
or otherwise, or conspiracy in restraint of trade or commerce
within [Oklahoma] . . . to be against public policy and
illegal.” 79 O.S. § 203(A). The Oklahoma Supreme
Court has interpreted section 203(A) to prohibit “only
those acts that unreasonably restrain trade or