United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND
ORDER ON MOTION TO STAY
Y. Wang United States Magistrate Judge.
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,
(2) Motion to Stay Discovery (“the Motion to
Stay”) [#23, filed July 15, 2019].
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.
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 ¶
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
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
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.
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
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.
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.
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).
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.
the Parties disagree as to the precise nature of Mr.
Carriere's employment, they agree that the forum
selection clause in ¶ 9.9 applies. 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
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.
the Forum Selection ...