United States District Court, D. Colorado
OPINION AND ORDER
Jelderks U.S. Magistrate Judge
pro se Michael and Brooke Paxton bring this action
against Defendants DISH Network, LLC (“DISH
Network”) and DISH Network Services, LLC
(“DNS”), collectively (“DISH”).
Plaintiffs originally filed their Complaint on August 10,
2017 in Washington County Circuit Court for the State of
Oregon. Defendants removed the action to this court on
December 5, 2017 based upon diversity jurisdiction. On
December 13, 2017, Defendants filed a motion to transfer
venue to the U.S. District Court for the District of Colorado
pursuant to 28 U.S.C. §1404(a). On March 9, 2018, after
the motion to transfer venue was fully briefed, Plaintiffs
filed a motion for leave to amend their Complaint. On April
3, 2018, without leave of the Court, Plaintiffs filed a
purported Amended Complaint. The Court issued an Order
indicating that the Amended Complaint would not be filed
since leave had not been given by the Court. For the reasons
that follow, Defendants' motion to transfer venue is
granted and Plaintiffs' motion for leave to file an
Amended Complaint is denied as moot.
2009 Plaintiffs were both owners of the Oregon corporation, A
PDX Pro Co., Inc. (“PDX”). (Decl. of Norman
Hawkins ¶¶12-13, Ex. 3). In October 2009, Mr.
Paxton transfered all of his interest in the company to Mrs.
Paxton and she became the sole owner and President.
(Id.). Mr. Paxton continued as an employee of PDX.
(Hawkins Decl. Ex. 3).
Network and DNS are both Colorado limited liability companies
with their principal places of business in Englewood,
Colorado. (Notice of Removal at 4(c)-(d)). The sole member of
each LLC is DISH DBS Corporation, a Colorado corporation also
with its principal place of business in Englewood, Colorado.
DNS entered into a series of Installation Service Agreements
beginning in December 2004. (Hawkins Decl. ¶¶ 10,
11, 14). Michael Paxton executed the 2004 and 2006 agreements
on PDX's behalf as its President. (Hawkins Decl.
¶¶ 10-11). Brooke Paxton executed a 2009
Installation Agreement on PDX's behalf as its President.
Mrs. Paxton also executed a 2010 DISH Network Retailer
Agreement with DISH in which PDX agreed to market DISH
television programming. (Hawkins Decl. ¶¶ 15-16).
Pursuant to the Installation Agreements, PDX performed work
for DISH in Oregon and Washington. (Hawkins Decl. ¶ 9).
2009 Installation Agreement, which superseded the prior
contracts between PDX and DISH and governed the business
relationship between the two entities, contained a
forum-selection clause. (Hawkins Decl. Ex. 5, ¶¶
19-20). The clause provides, in pertinent part:
This Agreement and the relationship between the parties,
including all disputes and claims, whether arising in
contract, tort or under statute, shall be governed by,
interpreted under and enforced in accordance with the laws of
the State of Colorado. The federal and state courts of the
State of Colorado shall have exclusive jurisdiction to hear
and determine any claims, disputes, actions or suits which
may arise under or with respect to this Agreement. The
parties agree and voluntarily consent to submit themselves to
the personal jurisdiction and venue of such courts for such
(Ex. 5, ¶ 19). The Agreement is “binding upon the
heirs, legal representatives, successors and assigns of [DNS]
and [PDX].” (Ex. 5, ¶ 23).
terminated PDX's contract in July 2011. (Hawkins Decl.
¶ 18, Ex. 7). On June 29, 2012, PDX brought a diversity
action against DISH in the District of Colorado. (See A
PDX Pro Co., Inc. v. Dish Network Serv., LLC,
No. 12-CV-01699-RBJ (D. Colo. June 29, 2012), ECF Dkt. #2
Complaint at ¶¶ 5-6 and ECF Dkt. #56 Third Amended
Complaint at ¶¶ 3-4). Several of PDX's claims were
dismissed upon motion and on summary judgment. After a jury
trial, the court entered final judgment in favor of DISH and
against PDX on the remainder of PDX's substantive claims.
(A PDX Pro Co., Inc. v. Dish Network Serv., LLC, No.
12-CV-01699-RBJ, 2013 WL 3296539 at *6 (D. Colo. July 1,
2013); A PDX Pro Co. Inc., 2014 WL 859431 at *9;
A PDX Pro Co., Inc., No. 12-CV-01699-RBJ
ECF, Dkt. #204). Over $775, 000 in fees and monetary
sanctions entered against PDX in the Colorado action remain
outstanding. (Hawkins Decl. ¶¶25-26).
Complaint is not a model of clarity. However, Plaintiffs'
allegations center around their business relationship with
Defendants. They assert that Defendants misclassified
Plaintiffs as contractors while treating them as employees
(Compl. generally); that Defendants owe them a
“tremendous amount of money” for services
rendered and equipment purchased from DISH (Compl.
¶¶ 31-34, 69); and that Defendants were unjustly
enriched from profits that were gained as a result of not
providing training on the use of the accounting and returns
computer systems, not fixing what they allegedly knew were
inaccuracies in the systems, and for requiring Plaintiffs to
pay for equipment, shipping, and “bad returned
equipment.” (Compl. ¶ 67, 34).
argue that this action should be transferred to the District
of Colorado because the 2009 Installation Agreement has a
forum-selection clause that requires any dispute to be
brought in Colorado and because Plaintiffs, through PDX, have
already brought and had resolved a nearly identical action
against DISH in Colorado. Defendants further argue that none
of the public-interest factors that the Court must consider
in evaluating the motion to transfer constitute the
extraordinary circumstances necessary to disregard the
forum-selection clause and defeat transfer.
Response, as with their Complaint, is lacking in clarity and
is largely a reiteration and expansion of their allegations
against Defendants. However, the relevant assertions that can
be gleaned from their briefing are that: (1) they, as
individuals, have not taken legal action against DISH; (2)
they, as individuals, are not in business with and have no
legal obligation to DISH; (3) PDX never took legal action
against DISH alleging that DISH was Plaintiffs' employer
or that DISH violated the FLSA or Oregon law;(4) there is no
contract between Plaintiffs and DISH; (5) Plaintiffs ...