Bowman v. Martin, Inc.
ORDER GRANTING 11 MOTION TO CHANGE VENUE. Signed by Chief Judge S. Thomas Anderson on 6/30/17. (Anderson, S. Thomas) [Transferred from Tennessee Western on 6/30/2017.]
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
ORDER GRANTING MOTION TO CHANGE VENUE
Plaintiff Carrie Bowman filed this case against her former employer Martin, Inc., for
allegedly terminating her employment in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621, et seq. (ECF No. 1.) Defendant Martin has filed a motion to
transfer the case to the United States District Court for the Northern District of Alabama
pursuant to a purported contractual mandatory forum-selection clause and 28 U.S.C. § 1404. 1
(ECF No. 11.) Plaintiff has filed a response to the motion (ECF No. 18), and Defendant has filed
a reply to the response.2 (ECF No. 23.) For the reasons set forth below, Defendant’s motion is
Defendant is incorporated in the state of Alabama and headquartered in Florence,
Alabama, which is located in Lauderdale County, Alabama.3
Defendant provides custom
A forum-selection clause is enforced through a change of venue motion pursuant to 28 U.S.C.
§ 1404(a). See Milan Express Co. v. Applied Underwriters Captive Risk Assurance Co., Inc.,
2016 WL 407317 at *2 (W.D. Tenn. Feb. 2, 2016), appeal dismissed, 672 F. App’x 553 (6th Cir.
The Court granted Defendant’s unopposed motion to file a reply on June 21, 2017. (ECF No.
The facts are stated for the purpose of deciding this motion only.
tailored solutions for maintenance, repair, and operation supplies to industry and construction
markets across the United States. (Richey Decl. ¶ 3, ECF 11-1.) Townsend Door & Hardware
(“Townsend”), a division of Defendant Martin, is based in Jackson, Tennessee, and provides
doors, frames, and hardware solutions. (Id. at ¶ 4.) Florence, Alabama, is approximately a twohour drive from Jackson, Tennessee. (Id. at ¶ 9.)
Plaintiff worked for Townsend from October 1, 2004, until October 3, 2014. (Bowman
Decl. ¶ 2, ECF No. 18-1; Richey Decl. ¶ 6, ECF 11-1.) Plaintiff was told that she was being laid
off due to a reduction in force and was given a Separation Notice and Separation Agreement to
review and sign. She was told that, if she signed the Separation Agreement, Defendant would
pay her an additional two weeks salary. (Bowman Decl. ¶ 8, ECF No. 18-1.) Plaintiff executed
the Separation Agreement on October 4, 2014. (Richey Decl. ¶ 10, ECF 11-1.)
The Separation Agreement is a five-page document written in standard twelve-point font.
(Richey Decl. Ex. 1.) It provided Plaintiff up to twenty-one days to consider its terms, as well as
seven days after execution for revocation, and advised Plaintiff to consult with an attorney. (Id.)
The Separation Agreement contained a forum-selection clause that stated in pertinent
You agree that the exclusive venue and jurisdiction for any disputes regarding the
interpretation or the enforcement of this Separation Agreement is the state or
federal courts sitting in Lauderdale County, Alabama.
(Id. at ¶ 20.) The forum-selection clause was set apart from other contract provisions. (Id.)
any provisions are declared unenforceable the “remainder of the Separation Agreement will
remain in force and effect.” (Id. at ¶ 17.) The Separation Agreement also provided that Plaintiff
waived any claims arising out of her employment, including claims brought under the ADEA.
(Id. at ¶ 7.)
Defendant’s personnel files and payroll records, including Plaintiff’s file and records, are
located in Florence, Alabama. Defendant’s employees who are responsible for oversight of
human resources, safety, payroll, and accounting are located in Florence, Alabama. Plaintiff
frequently interacted with Defendant’s employees located in Florence, Alabama. Defendant’s
owners and directors reside in Lauderdale County, Alabama. (Richey Decl. ¶ 5.)
Defendant contends that the filing of a lawsuit in this Court violates the terms of the
mandatory forum-selection clause in Plaintiff’s Separation Agreement. According to Defendant,
the District Court in the Northern District of Alabama has jurisdiction over Plaintiff’s claims,
and this action must be transferred to that Court. In response, Plaintiff argues that Defendant’s
motion should be denied because (1) the age-discrimination waiver provision in the Separation
Agreement is invalid and (2) it would be prejudicial to Plaintiff if the matter is transferred to
Alabama because various witnesses are located in Jackson, Tennessee. Plaintiff’s arguments are
The United States Supreme Court addressed forum-selection clauses in Atlantic Marine
Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568 (2013):
In the typical case not involving a forum-selection clause, a district court
considering a [28 U.S.C.] § 1404(a) motion (or a forum non conveniens motion)
must evaluate both the convenience of the parties and various public-interest
considerations. Ordinarily, the district court would weigh the relevant factors and
decide whether, on balance, a transfer would serve the convenience of parties and
witnesses...and otherwise promote the interest of justice. 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. The
enforcement of valid forum-selection clauses, bargained for by the parties,
protects their legitimate expectations and furthers vital interests of the justice
system. For that reason, and because the overarching consideration under §
1404(a) is whether a transfer would promote the interest of justice, a valid
forum-selection clause [should be] given controlling weight in all but the
most exceptional cases.
Id. at 581 (internal citations and quotations omitted) (emphasis added).
Thus, when the
agreement contains a valid forum-selection clause, the usual analysis under 28 U.S.C. § 1404(a)4
is changed. Id. First, “the plaintiff’s choice of forum merits no weight” because the forumselection clause represents plaintiff’s preemptive exercise of “venue privilege.” Id. at 581-82.
Instead, the burden shifts to the plaintiff to show why the court should not transfer the case to the
agreed upon forum. Id. at 582. Second, “a court evaluating a defendant’s § 1404(a) motion to
transfer based on a forum-selection clause should not consider arguments about the parties’
private interests.” Id. at 582. When parties agree to a forum-selection clause, they waive the
right to challenge the forum as inconvenient for themselves or their witnesses. Id. The
enforcement of such clauses, which were “bargained for by the parties, protects their legitimate
expectations and further vital interests of the justice system.” Id. at 581.
Plaintiff first argues that the Separation Agreement’s age discrimination waiver provision
is not valid because (1) she was not provided information about other employees considered for
the reduction in force as required under Section (f)(1)(H) of the Older Workers Benefit
Protection Act (“OWBPA”), 29 U.S.C. § 626 and (2) the waiver was confusing and difficult to
As an initial matter, the Court notes that a challenge to a forum-selection clause must be
made to the clause itself. See Preferred Capital, Inc. v. Associates in Urology, 453 F.3d 718,
722 (6th Cir. 2006) (pointing out that the party opposing the forum-selection clause failed to
offer any evidence showing that it did not knowingly and willingly consent to the inclusion of
that particular clause in the agreement). In Associates in Urology, the Court of Appeals held that
Under § 1404(a), “[f]or 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
“unless there is a showing that the alleged fraud or misrepresentation induced the party opposing
a forum-selection clause to agree to inclusion of that clause in a contract, a general claim of fraud
or misrepresentation as to the entire contract does not affect the validity of the forum-selection
clause.” Id. at 722 (quoting Moses v. Bus. Card Express, 929 F.2d 1131 (6th Cir. 1991)).
Plaintiff has made no such showing in this case.
Plaintiff’s objections to the age discrimination waiver provision itself are also without
merit. Although the OWBPA includes disclosure requirements, the requirements apply only to
“group or class” layoffs, 29 U.S.C. § 626(f)(1)(H), when benefits are offered to “two or more
employees.” 29 C.F.R. § 1625.22(f)(1)(iii)(B). Here, Plaintiff was the only employee who was
laid off. Because two or more employees were not offered benefits, Plaintiff was not entitled to
information about other employees considered for the reduction in force.
Additionally, the waiver was not confusing and difficult to understand. The Separation
Agreement provided that Plaintiff waived any claims she might have under the ADEA, including
the OWBPA, and she acknowledged that she voluntarily and knowingly agreed to do so in
consideration for two weeks extra pay. The forum-selection clause was unambiguous and was
set off from other contractual provisions. Plaintiff was advised to consult with counsel, and she
was provided twenty-one days to consider the Agreement and seven days to revoke the
Agreement after execution. Plaintiff cannot complain now that she did not understand the terms
of the Agreement.
Next, Plaintiff argues that a trial in Alabama would be inconvenient for certain witnesses
living in Tennessee. As noted above, the Supreme Court has held that challenges to a forumselection clause based on the inconvenience of the witnesses are waived.
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. A court accordingly must deem the
private-interest factors to weigh entirely in favor of the preselected forum.
Atlantic Marine, 134 S. Ct. at 582. However, even under pre-Atlantic Marine law, Plaintiff
would not prevail because she has not identified any witnesses who would not be able to attend a
trial in Alabama nor has she described what their anticipated testimony would be. See Esperson
v. Trugreen L.P., 2010 WL 4362794 at *8 (W.D. Tenn. Oct. 5, 2010) (pre-Atlantic Marine)
(finding that a party who fails to identify witnesses and what their testimony would be cannot
establish that a particular forum is inconvenient) (citation omitted)). Furthermore, Plaintiff has
not shown that these witnesses will not attend or will be inconvenienced if the case were
transferred. See National City Bank v. Breeden, 2009 WL 3514587 at *1 (W.D. Ky. Oct. 27,
2009) (pre-Atlantic Marine) (“A generalization that important witnesses are located in North
Carolina is insufficient to meet the requirement of a substantial showing that transfer is
Plaintiff has not carried her burden to show that exceptional circumstances render the
forum-selection clause unenforceable. The parties are required to litigate this matter in the
Northern District of Alabama, as agreed under the forum-selection clause. Accordingly, the
motion to change venue is GRANTED. The Clerk of the Court is DIRECTED to transfer this
case to the United States District Court for the Northern District of Alabama, Northwestern
Division, pursuant to 28 U.S.C. § 1404.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: June 30, 2017.
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