United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER, CHIEF JUDGE
This
matter is before the Court on Defendants' Motion to
Dismiss Due to Improper Venue or, In the Alternative, to
Transfer Venue to the District of New Jersey [Docket No. 16].
The Court has jurisdiction over this case pursuant to 28
U.S.C. §§ 1331 and 1367.
I.
BACKGROUND
This
case arises out of the termination of plaintiff's
employment with defendants on September 27, 2016. Docket No.
1 at 3, 7, ¶¶ 14, 30. On December 31, 2018,
plaintiff filed this lawsuit asserting claims for wrongful
termination on the basis of gender in violation of Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., termination in
violation of Colorado public policy, tortious interference
with prospective business relations under Colorado law, and
unpaid wages and penalties under the Colorado Wage Claim Act
(“CWCA”), Colo. Rev. Stat. § 8-4-101 et
seq. Docket No. 1 at 9-11. On January 23, 2019,
defendants moved to dismiss the action for improper venue or,
in the alternative, to transfer it to the U.S. District Court
for the District of New Jersey on the basis of a forum
selection clause in the “Relationship Manager
Agreement” (the “Agreement”) entered into
by plaintiff and Heartland Payment Systems, Inc.
(“Heartland” or “HPS”) on May 26,
2014. See Docket No. 16 at 1-2; Docket No. 16-2 at 8
(signature page signed by plaintiff and Heartland Payment
Systems Inc. on May 26, 2014).[1] The forum selection clause
provides, in relevant part:
Any suit, action or proceeding arising out of or relating to
this Agreement shall be brought only in a Superior Court of
New Jersey or the United States District Court for the
District of New Jersey and Employee hereby agrees and
consents to the personal and exclusive jurisdiction of said
courts over him or her as to all suits, actions and
proceedings arising out of or related to this Agreement, and
Employee further waives any claim that such suit, action or
proceeding is brought in an improper or inconvenient forum.
Docket No. 16-2 at 5, ¶ 17. The Agreement also contains
a choice-of-law provision stating that the “Agreement
shall be governed by, and construed in accordance with the
laws of the State of New Jersey, without giving effect to
conflict of laws principles.” Id., ¶ 16.
On
February 14, 2019, plaintiff filed a response opposing
defendants' motion for dismissal or transfer. Docket No.
31. She argues that (1) dismissal under Fed.R.Civ.P. 12(b)(3)
is procedurally improper; (2) the forum selection clause does
not apply to her claims; and (3) enforcement of the
forum-selection clause would be unreasonable in this case.
See Docket No. 31 at 3-7.
II.
DISMISSAL UNDER FED. R. CIV. P. 12(b)(3)
Defendants
move to dismiss this case for improper venue under
Fed.R.Civ.P. 12(b)(3). Docket No. 16 at 4. However, a
“forum-selection clause does not render venue in a
court ‘wrong' or ‘improper' within the
meaning of [28 U.S.C.] § 1406(a) or Rule
12(b)(3).” Atl. Marine Constr. Co. v. U.S. Dist.
Ct. for the W. Dist. Tex., 571 U.S. 49, 59 (2013);
see also Niemi v. Lasshofer, 770 F.3d 1331, 1351
(10th Cir. 2014). Instead, the proper mechanism for enforcing
a forum-selection clause is a motion to transfer under 28
U.S.C. § 1404(a). See Atl. Marine Constr. Co.,
571 U.S. at 59. Defendants' request for dismissal under
Rule 12(b)(3) will therefore be denied.
III.
TRANSFER UNDER 28 U.S.C. § 1404(a)
Defendants
alternatively seek transfer of this case to the District of
New Jersey pursuant to 28 U.S.C. § 1404(a). See
Docket No. 16 at 5. Section 1404(a) provides:
For the convenience of 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 or to any district or division to which all parties
have consented.
28 U.S.C. § 1404(a). Courts weigh a number of private
and public interest factors in determining whether transfer
is appropriate under § 1404(a). Relevant private
interests include “relative ease of access to sources
of proof; availability of compulsory process for attendance
of unwilling, and the cost of obtaining attendance of
willing, witnesses; possibility of view of premises, if view
would be appropriate to the action; and all other practical
problems that make trial of a case easy, expeditious and
inexpensive.” Atl. Marine Constr. Co., 571
U.S. at 62 n.6 (quoting Piper Aircraft Co. v. Reyno,
454 U.S. 235, 241 n.6 (1981)). Public interest factors
include: “the administrative difficulties flowing from
court congestion; the local interest in having localized
controversies decided at home; and the interest in having the
trial of a diversity case in a forum that is at home with the
law.” Id. (internal quotation marks and
bracket omitted)).
In the
ordinary case, the party seeking 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). The analysis changes, however, when a
motion for transfer is based on an applicable, mandatory,
valid, and enforceable forum-selection clause. See Atl.
Marine Constr. Co., 571 U.S. at 62; cf. Azima v. RAK
Inv. Auth., 926 F.3d 870, 875 (D.C. Cir. June 18, 2019)
(discussing analysis that applies when motion to dismiss for
forum non conveniens is based on an
“applicable, mandatory, valid, and enforceable”
forum-selection clause). First, “the plaintiff's
choice of forum merits no weight” and “the
plaintiff bears the burden of establishing that transfer to
the forum for which the parties bargained is
unwarranted.” Atl. Marine Constr. Co., 571
U.S. at 63. Second, the court resolving the transfer motion
may consider only public-interest factors and not the
parties' private interests on the premise that parties
who agree to a forum-selection clause “waive the right
to challenge the preselected forum as inconvenient ...