United States District Court, D. Colorado
ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER
William J. Martínez Judge
brought this action pursuing individual and class claims
under the Fair Labor Standards Act ("FLSA"), 29
U.S.C. § 201 et seq., and the Colorado Wage
Act, Colo. Rev. Stat. § 8-4-101 et seq.
Defendant, Tension International, Inc., has filed a Motion to
Transfer Venue (ECF No. 10) pursuant to 28 U.S.C. §
1404(a), seeking to enforce a forum-selection clause found in
the "Sub-Contracting Agreement" entered into by
Plaintiff and Defendant (ECF No. 10-2 at 8, ¶ 11(d)) and
to have this case transferred to the Western District of
Missouri on that basis. For the reasons stated below, the
Court grants Defendant’s Motion.
the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to
any other district or division where it might have been
brought." 28 U.S.C. § 1404(a). The party seeking to
transfer a case pursuant to § 1404(a) bears the burden
of establishing that the existing forum is inconvenient.
See Chrysler Credit Corp. v. Cnty. Chrysler,
Inc., 928 F.2d 1509, 1515 (10th Cir. 1991).
the typical case not involving a forum-selection clause, a
district court considering a § 1404(a) motion (or a
forum non conveniens motion) must evaluate both the
convenience of the parties and various public-interest
considerations." Atl. Marine Constr. Co. v. U.S.
Dist. Ct. for W. Dist. of Tex., 134 S.Ct. 568, 581
(2013) ("Atlantic Marine"); see also
Chrysler Credit Corp., 928 F.2d at 1516 (setting out
factors courts consider in "an individualized,
case-by-case consideration of convenience and fairness"
(internal quotation marks omitted)). "Ordinarily, the
district court would weigh the relevant factors and decide
whether, on balance, a transfer would serve ‘the
convenience of parties and witnesses’ and otherwise
promote ‘the interest of justice.’" Atl.
Marine, 134 S.Ct. at 581 (citing § 1404(a)).
calculus changes, however, when the parties have a contract
containing a valid forum-selection clause, which
"represents the parties’ agreement as to the most
proper forum." Id. (quoting Stewart Org.,
Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988)). "[A]
valid forum-selection clause should be given controlling
weight in all but the most exceptional cases." Atl.
Marine, 134 S.Ct. at 581 (alterations in original
omitted). As relevant here, the Supreme Court has held that
"[t]he presence of a valid forum-selection clause
requires district courts to adjust their usual § 1404(a)
analysis" in two ways:
First, the plaintiff’s choice of forum merits no
weight. Rather, as the party defying the forum-selection
clause, the plaintiff bears the burden of establishing that
transfer to the forum for which the parties bargained is
unwarranted. . . .
Second, a court evaluating a defendant’s § 1404(a)
motion to transfer based on a forum-selection clause should
not consider arguments about the parties’ private
interests. When parties agree to a forum-selection clause,
they waive the right to challenge the preselected forum as
inconvenient or less convenient for themselves or their
witnesses, or for their pursuit of the litigation. A court
accordingly must deem the private-interest factors to weigh
entirely in favor of the preselected forum . . . . As a
consequence, a district court may consider arguments about
public-interest factors only. Because those factors will
rarely defeat a transfer motion, the practical result is that
forum-selection clauses should control except in unusual
Id. at 581-82.
a Colorado resident, performed work for Defendant, a Missouri
corporation, at a facility in Longmont, Colorado. (ECF No. 1
at 2 & ECF No. 12-1.) Plaintiff and Defendant entered into
sub-contracting agreements governing this work as of January
10, 2013 and October 13, 2013. (ECF Nos. 10-2 & 10-3.) Both
agreements contain an identical forum selection provision:
The parties consent to the exclusive jurisdiction of courts
situated in the Circuit Court of Jackson County, Missouri or
the United States District Court for the Western District of
Missouri in the event any legal proceedings are instituted
relating to this Agreement.
(ECF No. 10-2 at 8, ¶ 11(d); ECF No. 10-3 at 8, ¶
brought this suit on December 16, 2015, on behalf of himself
and others similarly situated, alleging that they should have
been classified as employees, not as sub-contractors or
independent contractors. (ECF No. 1 at 8-10.) Plaintiff
alleges that Defendant violated the FLSA and other provisions
of federal law, as well as the Colorado Wage Act, Colo. Rev.
Stat. § 8-4-101 et seq. Plaintiff’s Complaint
seeks a declaratory judgment that he was an employee, damages
for misclassification, unpaid overtime pay, civil damages for
fraudulent tax reporting pursuant to 26 U.S.C. § ...