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PTW Energy Services, Inc. v. Carriere

United States District Court, D. Colorado

August 23, 2019



          Nina Y. Wang United States Magistrate Judge.

         Magistrate Judge Nina Y. Wang Pending before the court are two motions filed by Defendant Martin Carriere (“Defendant” or “Mr. Carriere”):

(1) Motion to Dismiss for Forum Non Conveniens (“the Motion to Dismiss”) [#14, filed June 19, 2019], and
(2) Motion to Stay Discovery (“the Motion to Stay”) [#23, filed July 15, 2019].

         The undersigned considers these motions pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated July 9, 2018 [#18], and the Memoranda dated July 9 and July 16, 2019. [#19; #24]. For the reasons stated herein, it is RECOMMENDED that the Motion to Dismiss be GRANTED and it is ORDERED that the Motion to Stay is GRANTED.


         This case concerns the employment relationship between Plaintiff PTW Energy Services, Inc. (“Plaintiff” or “PTW USA”), an American corporation incorporated under the laws of Delaware and with its principal place of business in Texas, and Defendant, a Canadian citizen resident in Colorado. [#1 at ¶¶ 1-6]. Mr. Carriere initially entered into an agreement (“the Employment Agreement”) with Tarpon Energy Services Ltd. (“Tarpon Energy”), a Canadian corporation headquartered in Alberta, on April 7, 2014. [Id. at ¶ 11, #1-1 at 2]. Around this time, PTW Energy Services Ltd. (“PTW Canada”), headquartered in Alberta, purchased Tarpon Energy. [#1 at ¶ 12; #14-1 at ¶ 5].

         After the acquisition, Defendant's relationship with his employer deteriorated, and on February 12, 2019, Mr. Carriere sent the following email:

This letter is intended to serve as “Good Reason Notice” under the terms of my employment contract PTW. I respect your decision to reorganize and respectfully request payment of the “Termination Payment” and release from PTW so I can begin the next stage of my career. I offer to stay with the company for a period of up to 30 days to continue to assist with transition if requested.

[#1 at ¶ 26; #14-1 at 14 ¶ 39]. The Parties soon came to disagree about the precise impact of that email and the subsequent obligations under the Agreement. [#1-1 at 11].[1]

         On March 14, 2019, Defendant filed suit to enforce the Agreement against PTW Canada in the Court of Queen's Bench of Alberta, Canada (“the Canadian Action”). [#14-1 at 6]. PTW USA filed this case against Mr. Carriere shortly thereafter on May 20, 2019, seeking declaratory relief establishing that Mr. Carriere resigned from his employment and PTW did not owe any further pay or compensation under the Employment Agreement. [#1 at ¶¶ 25-28, 38-44]. On May 28, 2019, Mr. Carriere filed an Amended Statement of Claim (“Amended Statement”) in the Canadian Action in which he added Tarpon Energy as a Defendant. [#14-1 at 24]. The Amended Statement specifically cites PTW USA's filing of this action as further evidence of PTW Canada and Tarpon Energy's bad faith. [Id. at 39-40].

         In this action, Defendant filed the instant Motion to Dismiss on June 19, 2019. [#14]. Shortly before the scheduling conference held on July 22, Defendant filed the Motion to Stay, seeking to stay all discovery until the Motion to Dismiss was ruled upon. [#23 at 4]. The Motion to Dismiss became ripe with the filing of Defendant's Reply on July 24, 2019 [#33], and the Motion to Stay became ripe on July 21, 2019, also with Defendant's Reply [#26]. On July 31, the court granted leave [#36] for Plaintiff to file a Surreply [#37] to address arguments made in Defendant's Reply. The court now turns to these motions.


         Under the doctrine of forum non conveniens, a court may order the dismissal of an action over which it declines jurisdiction because the court lacks a mechanism to transfer to the proper forum, typically when the forum is in a foreign country. Kelvion, Inc. v. PetroChina Canada Ltd., 918 F.3d 1088, 1091 (10th Cir. 2019); Charles Alan Wright et al., 14D Fed. Prac. & Proc. Juris. § 3828 (4th ed., Nov. 2018 update). The doctrine is “essentially ‘a supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined.'” Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 429 (2007) (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994)). “The central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient.” Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 605 (10th Cir. 1998) (citations and quotations omitted).

         Courts apply a two-step threshold test to determine whether a case may be dismissed under the forum non conveniens doctrine. Fireman's Fund Ins. Co. v. Thyssen Min. Const. of Canada, Ltd., 703 F.3d 488, 495 (10th Cir. 2012); Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1174 (10th Cir. 2009). First, there must be “an adequate alternative forum in which the defendant is amenable to process.” Fireman's Fund, 703 F.3d at 495. Second, the court must confirm that foreign law is applicable. Id. “If the answer to either of these questions is no, the forum non conveniens doctrine is inapplicable.” Id.

         If these threshold criteria are satisfied, the court proceeds to balance “a range of private and public interest factors.” Yavuz, 576 F.3d at 1180. The private interest factors include: (1) the relative ease of access to sources of proof; (2) availability of compulsory process for compelling attendance of witnesses; (3) cost of obtaining attendance of willing non-party witnesses; (4) possibility of a view of the premises, if appropriate; and (5) all other practical problems that make trial of the case easy, expeditious and inexpensive. Id. Public interest factors include: (1) administrative difficulties of courts with congested dockets which can be caused by cases not being filed at their place of origin; (2) the burden of jury duty on members of a community with no connection to the litigation; (3) the local interest in having localized controversies decided at home; and (4) the appropriateness of having diversity cases tried in a forum that is familiar with the governing law. Id.

         Ordinarily, a defendant must bear a “heavy burden” in opposing the plaintiff's chosen forum. Sinochem, 549 U.S. at 430. There is normally a “strong presumption in favor of hearing the case in the plaintiff's chosen forum.” Gschwind, 161 F.3d at 606; Soo Chong Lee v. Young Life, No. 18-CV-01421-PAB-KLM, 2019 WL 764549, at *5 (D. Colo. Feb. 21, 2019). This presumption applies with less force if a plaintiff sues outside of its home forum. Sinochem, 549 U.S. at 430 (“When the plaintiff's choice is not its home forum, however, the presumption in the plaintiff's favor applies with less force, for the assumption that the chosen forum is appropriate is in such cases less reasonable.” (quotation omitted)). But if a defendant seeking dismissal is a resident of the forum, and particularly when the defendant is a natural person and not a large corporate entity with distributed operations, then that fact is accorded significant weight. See Gschwind, 161 F.3d at 609 (“It is true that a forum resident should have to make a stronger case than others for dismissal based on forum non conveniens.”); In re Cessna 208 Series Aircraft Prod. Liab. Litig., 546 F.Supp.2d 1191, 1195 (D. Kan. 2008) (“[A] defendant who is a forum resident . . . must make a stronger case than others for dismissal based on forum non conveniens.”). When the parties have entered into a valid forum selection clause that purports to exclusively commit the parties to a forum, that clause should be “given controlling weight in all but the most exceptional cases.” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 60 (2013) (citations and quotations omitted).

         In reviewing a trial court's determination on a motion to dismiss for forum non conveniens, the Tenth Circuit has adopted a bifurcated approach. First, the court examines the interpretation of the clause at issue de novo, and then examines the court's balancing of the public and private interest factors for an abuse of discretion. Kelvion, 918 F.3d at 1092. The court therefore proceeds in the same manner, first interpreting the clause at issue and then proceeding to substantively apply the doctrine and balance the relevant factors.


         Though the Parties disagree as to the precise nature of Mr. Carriere's employment, they agree that the forum selection clause in ¶ 9.9 applies.[2] The Tenth Circuit and other courts have “frequently classified forum selection clauses as either mandatory or permissive.” Excell, Inc. v. Sterling Boiler & Mechanical, Inc., 106 F.3d 318, 321 (10th Cir. 1997). A mandatory forum selection clause must contain “clear language” evincing that intent of the parties. Id. Generally, where venue is specified in a forum selection clause with “mandatory or obligatory language, the clause will be enforced; but where only jurisdiction is specified, the clause will generally not be enforced unless there is some further language indicating the parties' intent to make venue exclusive.” K & V Sci. Co. v. BMW, 314 F.3d 494, 499 (10th Cir. 2002) (collecting cases); Xantrex Tech. Inc. v. Advanced Energy Indus., Inc., No. Civ-A-07-CV-02324-WYD-MEH, 2008 WL 2185882, at *6 (D. Colo. May 23, 2008) (“Where venue is specified in a forum selection clause with mandatory or obligatory language, the clause will be enforced; where only jurisdiction is specified in a forum selection clause, the clause will generally not be enforced unless there is some further language indicating the parties' intent to make venue exclusive.”). Thus, forum selection clauses are permissive unless there is a clear intent to make them mandatory.

         Accordingly, the court first considers the clause itself, focusing on the Parties' dispute whether it is mandatory or permissive. The court next considers application of the substantive public and private interests. Ultimately, the court concludes that the forum selection clause is not mandatory, and Defendant has met the demanding burden to justify dismissal.

         Is the Forum Selection ...

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