Madison - St. Clair Record

Sunday, August 18, 2019

Court denies Advanced Physical Therapy's motion to dismiss case

By Sara McCleary | Sep 20, 2017

BENTON – U.S. District Senior Judge Phil Gilbert has denied a defense motion to dismiss a lawsuit filed against it by Apex Physical Therapy.

Advanced Physical Therapy asked the court to dismiss its competitor’s case for a lack of personal jurisdiction, claiming it has not had any contact with Illinois, and submitted a joint motion with its fellow defendants Zachary Ball and Todd Linebarger asking that the case be retransferred to the U.S. District Court for the Western District of Missouri, in which it was initially filed. 

Gilbert denied both motions.

He acknowledged that Apex has made a prima facie case that his court has personal jurisdiction over Advanced. He wrote that as per the tortious interference claim, Advanced’s alleged tortious conduct was intentional, that the company knew how its actions might affect Apex in Illinois, and that the actions were aimed at Illinois because Apex is based there. Whether Advanced has officially done business in Illinois or not is therefore irrelevant.

Gilbert noted that the plaintiff has made an additional prima facie case through the civil conspiracy claim for the court having jurisdiction over the case. 

“In order to state a claim for civil conspiracy under Illinois law, a plaintiff must ‘allege an agreement and a tortious act committed in furtherance of that agreement,’” Gilbert wrote.

Apex brought its case against its competitor and two former employees after Ball and Linebarger left Apex for competing company Advanced, then allegedly broke confidentiality agreements precluding them from using confidential company information for personal use. 

Specifically, Apex alleges that the pair contacted a third company, asking it to write an identical testimonial to one it had written about Apex. The plaintiff further alleges that Ball and Linebarger contacted a client, Tyson Foods, in an attempt to "poach" the client and its business away from their former employer to their new company.

When Apex filed its suit, Advanced, Ball and Linebarger filed its own complaint against Apex in Missouri, asking the court to declare the employment agreement unenforceable and seeking an injunction enforcing that decision. That case, along with Apex’s case, were ultimately transferred to the Illinois court and consolidated into one case.

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U.S. District Court for the Southern District of Illinois