United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Defendant Thomas R.
Jarboe's (“Jarboe”) Motion to
Transfer Venue [#19] (the “Motion”).
Plaintiff filed a Response [#34] in opposition to the Motion,
and Defendant Jarboe filed a Reply [#38]. The Court has
reviewed the Motion, Response, Reply, the entire case file,
and the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Motion [#19]
well-pled facts of the Complaint [#3] are construed in a
light most favorable to Plaintiff. Barnes v. Harris,
783 F.3d 1185, 1191-92 (10th Cir. 2015). Plaintiff Cherry
Creek Mortgage Co., Inc., (“Plaintiff” or
“CCMC”) is a Colorado corporation with its
principal place of business in Greenwood Village, Colorado.
Compl. [#3] ¶ 1. Defendant Jarboe and Defendant
Alvaro C. Barajas (“Barajas”) are residents of
California. Id. ¶¶ 2, 4. Plaintiff alleges
that on April 18, 2016, the parties entered into a
Non-Producing Branch Manager Agreement (“the
Agreement”) whereby Plaintiff agreed to employ
Defendant Jarboe and Defendant Barajas to manage certain loan
origination branch offices in California. Id.
Defendant Jarboe managed twenty-two branches in California,
and Defendant Barajas managed one branch in California under
the overall supervision of Defendant Jarboe. Motion
[#19] ¶¶ 18-19. As non-producing branch managers,
Defendants' jobs were to solicit, originate, and
negotiate residential mortgage loans, and from time to time
perform duties assigned by Plaintiff as well as perform
various managerial duties as contemplated by the Agreement.
Id. Plaintiff alleges that Defendants breached the
Agreement by failing to compensate it when the loan
origination branches accumulated “net losses.”
recover the losses, Plaintiff filed this lawsuit on January
19, 2018. Compl. [#3]. Plaintiff asserts three
claims against Defendants. Id. ¶¶ 15-33.
First, Plaintiff asserts a claim for breach of contract.
Id. ¶¶ 15-24. Second, Plaintiff asserts a
claim for breach of fiduciary duty. Id. ¶¶
25-30. Finally, Plaintiff asserts a claim for unjust
enrichment. Id. ¶¶ 31-33.
response to the Complaint [#3], Defendant Jarboe filed the
present Motion [#19] seeking transfer to the Central District
of California pursuant to 28 U.S.C. § 1404(a). Defendant
Jarboe has also filed a separate suit in California regarding
his rights as an employee under California labor laws.
Motion [#19] at 2. In the present Motion [#19],
Defendant Jarboe asserts that, despite the forum selection
clause designating Colorado as a permissive venue for
resolving disputes relating to the Agreement, a California
court is more convenient and better situated to resolve this
dispute and the clause is void and unenforceable.
Id. at 2-3. The applicable clause states:
At the option of CCMC, an action may be brought to enforce
this Agreement in the District Court in and for the County of
Arapahoe, State of Colorado or in any other court in which
venue and jurisdiction are proper. Loan Originator hereby
irrevocably and unconditionally consents to venue and
jurisdiction in the District Court in and for the County of
Arapahoe, State of Colorado and in the United States District
Court for the District of Colorado, and hereby waives any
right or objection that jurisdiction and venue in those
Courts is not convenient.
Motion [#19] at 5 ¶ 15.
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.” 25 U.S.C. § 1404(a). The calculus
changes, however, when the parties' contract contains a
valid forum selection clause, which “represents the
parties' agreement as to the most proper forum.”
Stewart Org. v. Ricoh Cor., 487 U.S. 22, 31 (1988).
The “enforcement of valid forum selection clauses,
bargained for by the parties, protects their legitimate
expectations and furthers vital interests of the justice
system.” Id. at 33. When a § 1404(a)
motion seeks transfer to an identified forum in spite of the
forum bargained for by the parties, the motion to transfer
should not be granted absent “extraordinary
circumstances unrelated to the convenience of the
parties.” Atl. Marine Constr. Co. v. U.S. Dist.
Court, 571 U.S. 49, 52 (2013). “The party defying
the forum selection clause bears the burden of establishing
that transfer . . . is warranted.” Id. at
existence of a forum selection clause requires the Court to
limit its transfer analysis. Id. at 63. The Court
may only consider public-interest factors and not the
parties' private interests. Id. at 64.
“When the 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. “Because those [public-interest] factors
will rarely defeat a transfer motion, the practical result is
that forum-selection clauses should control except in unusual
Forum Selection Clause
selection clauses are presumptively valid under federal law,
and should not be set aside unless the party challenging the
clause shows that enforcement would be unreasonable. M/S
Bremem v. Zapata Off-Shore Co., 407 U.S. 1, 18 (1972). A
forum selection clause is unreasonable if (1) it was
incorporated into a contract as a result of fraud, undue
influence, or overweening bargaining power, (2) the selected
forum is so gravely difficult and inconvenient that the
complaining party will for all practical purposes be deprived
of his day in court, or (3) enforcement of the clause would
contravene a strong public policy of ...