United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Defendant's Motion
to Transfer Venue [#18](the “Motion”).
Plaintiff filed a Response [#32] in opposition to the Motion
[#18]. No. Reply was filed. The Court has reviewed the Motion
[#18], the Response [#32], the entire case file, and the
applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Motion [#18] is
Summary of the Case
alleges that in February 2015 he entered into an employment
agreement with Defendant. Am. Compl. [#33] ¶
21. From 2015 until early 2017, Plaintiff worked as President
of Iomnis Professional Solutions, a subsidiary of Defendant.
Id. ¶ 20. Plaintiff alleges that
Defendant only made two of twenty-eight required salary
payments to him and failed to reimburse his expenses.
Id. ¶ 23.
order to recover lost wages and expenses, Plaintiff filed
this lawsuit on July 20, 2017. Compl. [#1].
Plaintiff asserted three claims: (1) breach of contract, (2)
violation of the Colorado Wage Act, and (3) civil theft.
Am. Compl. [#33] at 5-6. However, Defendant states
that the employment agreement has a forum-selection clause,
has filed the present Motion seeking an order requiring a
transfer of venue to the United States District Court for the
Southern District of Texas. Motion [#18]
¶¶ 1-2. The applicable clause states:
To the extent it is necessary to resolve any disputes arising
under this Agreement, the Parties to this Agreement agree
that jurisdiction and venue in any action brought pursuant to
this Agreement to enforce its terms or otherwise with respect
to the relationships between the Parties shall properly lie
in, and only in, the state and federal courts of Harris
Id. ¶ 2.
Standard of Review
the convenience of the 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). Generally, the
movant bringing a motion for transfer under § 1404(a)
“bears the burden of establishing that the existing
forum is inconvenient.” Chrysler Credit Corp. v.
Country Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir.
1991). However, when a § 1404(a) motion is based on a
valid forum-selection clause, the motion to transfer should
be granted absent “extraordinary circumstances
unrelated to the convenience of the parties.” Atl.
Marine Constr. Co. v. United States Dist. Court, 571
U.S. 49, 52 (2013). A valid forum-selection clause requires
the court to adjust its analysis in three ways. Id.
at 63. First, the plaintiff's choice of forum merits no
weight. Id. “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.” Id. Second, the
court may only consider public-interest factors and not the
parties' private interests. Id. at 64.
“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.”
Id. Third, “when a party bound by a
forum-selection clause flouts its contractual obligation and
files suit in a different forum, . . . transfer of venue will
not carry with it the original venue's choice-of-law
rules.” Id. “Because [public-interest]
factors will rarely defeat a transfer motion, the practical
result is that the forum-selection clauses should control
except in unusual cases.” Id.
Repudiation of Contract
assessing Plaintiff's argument that the forum-selection
clause is not controlling, the Court addresses three issues:
(1) whether there is a valid contract; (2) whether the
contract was repudiated; and (3) whether repudiation excuses
a party from performing conditions precedent to a contract.
first issue to address is whether there is a valid contract.
See Mortg. Plus, Inc. v. DocMagic, Inc., No.
03-2582-GTV-DJW, 2004 WL 2331918, at *2 (D. Kan. Aug. 23,
2004). Defendant claims that “Plaintiff and Defendant
entered into an agreement” and that “Plaintiff
presumably performed under other provisions of the
contract.” Sched. Order [#24] at 3-4.
Plaintiff alleges that he worked under a signed employment
agreement. Am. Compl. [#33] ¶ 21. Thus,
both parties seem to admit that there was an employment
agreement, and therefore the Court finds that there is a
valid contract, solely for purposes of the present Motion
second issue to address is whether the contract was
repudiated. Plaintiff asserts that because Defendant has
allegedly repudiated the employment contract, Defendant is
estopped from enforcing the forum-selection clause.
Response [#32] at 4. While the Tenth Circuit Court
of Appeals does not appear to have explicitly addressed this
issue, in Marra v. Papandreou, 216 F.3d 1119, 1125
(D.C. Cir. 2000), the D.C. Circuit Court of Appeals held that
a forum-selection clause survives repudiation unless the
repudiation is specifically aimed at the forum-selection
clause itself. In Marra, the plaintiff sued the
Greek government for breach of contract in the United States
District Court. Id. at 1120. The contract had a
forum-selection clause which required that any dispute
arising out of the contract be settled by Greek courts.
Id. The district court held that the forum-selection
clause was enforceable and that its terms compelled the
plaintiff to file her suit in Greece. Id. at
1121-1122. The plaintiff appealed. Id. at 1122. The
Court of Appeals held that while a party is relieved of its
obligations when the other party ...