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Harrison v. Iomnis Surveillance Solutions, LLC

United States District Court, D. Colorado

July 9, 2018

KENNETH HARRISON, an individual, Plaintiff,
v.
IOMNIS SURVEILLANCE SOLUTIONS, LLC, Defendant.

          ORDER

          Kristen L. Mix United States Magistrate Judge.

         This matter is before the Court on Defendant's Motion to Transfer Venue [#18][1](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 GRANTED.

         I. Summary of the Case

         Plaintiff 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.

         In 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, [2] and 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 County, Texas.

Id. ¶ 2.

         II. Standard of Review

         “For 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.

         III. Analysis

         A. Repudiation of Contract

         In 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.

         The 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.[3] 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 [#18].

         The 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 ...


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