Obourn v. American Well Corporation

Filing 87

RULING granting 63 Motion to Transfer to Another District. Signed by Judge Janet C. Hall on 10/19/2015. (Malone, P.) Modified on 10/19/2015 to reflect this is filed as an oppinion(Malone, P.).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NOEL OBOURN,
Plaintiff,
v.
AMERICAN WELL CORPORATION,
Defendant.

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CIVIL CASE NO.
3:15-CV-48 (JCH)

OCTOBER 19, 2015

RULING RE: DEFENDANT’S MOTION TO TRANSFER (Doc. No. 63)
I.

INTRODUCTION
Noel Obourn brings this suit against her former employer, American Well

Corporation (“American Well”), making a number of claims related to American Well’s
alleged failure to pay her annual bonuses. Obourn originally brought the suit in state
court, but American Well subsequently removed the suit to this court. American Well
now moves to transfer the case to the United States District Court for the District of
Massachusetts. Motion to Transfer Venue (Doc. No. 63).
For the following reasons, the court grants American Well’s Motion.
II.

BACKGROUND
Obourn’s Third Amended Complaint (Doc. No. 64-1) and the parties’ relevant

Memoranda (Doc. Nos. 63-1, 69, 70) contain the relevant background information.
Obourn lives in West Hartford, Connecticut, and American Well’s principal place of
business is in Boston, Massachusetts. See Memorandum of Law in Support of
Defendant’s Motion to Transfer Venue (Doc. No. 63-1) (“Def.’s Mem. Supp.”) at 2.
American Well has no offices in Connecticut. Id. at 3.

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Obourn worked for American Well for about four years, during which time she
“consistently traveled to American Well’s office in Boston, where she had a dedicated
office.” Id. at 2. However, the relevant agreement between the parties (Doc. No. 1 Ex.
A) (the “Contract”) clearly contemplated that she would often work from Connecticut.
See Plaintiff’s Opposition to Defendant’s Motion to Transfer (Doc. No. 69) (“Pl.’s
Opp’n”), Ex. A (Doc. No. 69-1) § 1 (“You are expected to carry out your duties living in
Connecticut.”).
In April 2015, Obourn filed an action against American Well before the
Massachusetts Commission Against Discrimination. See Def.’s Mem. Supp. 5. In May
2015, American Well filed an action against Obourn in Massachusetts state court, which
Obourn removed then to federal court, for breach of a non-compete agreement between
the parties. Id. The non-compete agreement relevant to that suit was “expressly
incorporated by reference” in the Contract. See Pl.’s Opp’n, Ex. A § 4. Both the
Contract and the non-compete agreement contained choice of law provisions,
designating Massachusetts law as governing. Def.’s Mem. Supp. at 4-5. Further, the
non-compete agreement contained a mandatory forum selection clause, requiring any
action related to the non-compete agreement to be brought in Massachusetts state or
federal court. Id. at 4.
III.

STANDARD
“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.” 28 U.S.C. § 1404(a). The movant bears the burden of establishing the
propriety of transfer by a clear and convincing showing. Wilson v. DirectBuy, Inc., 821

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F.Supp.2d 510, 513 (D. Conn. 2011). “In determining whether a transfer of venue
pursuant to 28 U.S.C. § 1404(a) is appropriate, district courts engage in a two-part
inquiry, asking: (1) whether an action “might have been brought” in the proposed
transferee forum, and, if so, (2) whether the transfer promotes convenience and justice.”
Id. at 515. “Section 1404(a) reposes considerable discretion in the district court to
adjudicate motions for transfer according to an individualized, case-by-case
consideration of convenience and fairness.” Red Bull Associates v. Best Western Int'l,
862 F.2d 963, 967 (2d Cir. 1988) (internal citation omitted).
IV.

DISCUSSION
A. Whether the action “might have been brought” in the District of
Massachusetts
“To decide whether an action ‘might have been brought’ in the proposed

transferee forum, the court must first determine whether the defendants are subject to
personal jurisdiction in that forum, and whether venue would properly lie there.” Wilson,
821 F.Supp.2d at 515. There is no dispute that American Well, a corporation whose
principal place of business is in Boston, Massachusetts, is subject to personal
jurisdiction in Massachusetts. See 28 U.S.C. § 1332(c)(1). Nor is there any dispute
that venue properly lies in the District of Massachusetts, as American Well is the sole
defendant and a resident of Massachusetts, where its principal place of business is
located. See 28 U.S.C. § 1391(b)(1).
B. Whether transfer promotes convenience and justice
The parties essentially agree on what factors the court is to consider under
section 1404(a), but they strongly disagree on the significance of the factors. American
Well contends that almost all of the applicable factors weigh in favor of transfer, and the
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remaining factors are neutral. See Def.’s Mem. Supp. 7. Obourn disagrees, asserting
that “each of the factors . . . are either neutral or weigh in favor of keeping the case” in
this court. Pl.’s Mem. Opp’n 7.
To determine whether transfer promotes justice and convenience, courts in the
Second Circuit consider the following factors:
(1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the
location of relevant documents and relative ease of access to sources of
proof, (4) the convenience of parties, (5) the locus of operative facts, (6)
the availability of process to compel the attendance of unwilling witnesses,
[and] (7) the relative means of the parties.
D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106–07 (2d Cir. 2006). Other factors
include the “forum’s familiarity with the governing law” and “trial efficiency and the
interests of justice.” Wilson, 821 F. Supp. 2d at 516.
1.

The Plaintiff’s Choice of Forum

“The plaintiff’s choice of forum . . . is generally entitled to substantial
consideration.” Charter Oak Fire Ins. Co. v. Broan-Nutone, L.L.C., 294 F. Supp. 2d 218,
219 (D. Conn. 2003) (citing In re Warrick, 70 F.3d 736, 741 (2d. Cir. 1995)). Obourn
filed her lawsuit in this court. On the other hand, Obourn herself filed a claim before the
Massachusetts Commission Against Discrimination after this suit commenced, so her
choice of forum is less weighty than it might otherwise have been. This factor weighs
moderately against transfer.
2.

Convenience of the Parties and Witnesses

American Well is a Boston-based company that has never maintained an office in
Connecticut, has no employees who now work in Connecticut, and does not appear to
have any reason to come to Connecticut other than this lawsuit. Def.’s Mem. Supp. 7.

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On the other hand, Obourn will have to travel to Boston in order to prosecute her claim
in front of the Massachusetts Commission Against Discrimination and to defend herself
in American Well’s non-compete lawsuit. Id. at 8. American Well asserts, and Obourn
does not deny, that Obourn could have, under Connecticut law, brought the
discrimination claim with the Connecticut Commission on Human Rights and
Opportunities, which has an office in Hartford, where Obourn originally filed the
Complaint in this case. Id. The fact that Obourn could have brought her discrimination
claim in Connecticut, but chose to bring it in Massachusetts, strongly suggests that
Massachusetts is not an inconvenient forum for her. Additionally, American Well
asserts, and Obourn does not deny, that Obourn offered, through counsel, to conduct
mediation in the instant dispute in Boston, another fact that suggests that
Massachusetts is not an inconvenient forum for her. Id.
As for the witnesses, “[t]he ‘convenience of witnesses’ factor is principally aimed
at weighing the relative convenience of non-party witnesses.” MAK Mktg, Inc. v.
Kalapos, 620 F.Supp.2d 295, 309 (D. Conn. 2009). American Well has only identified
one potential witness who is not an employee, see Def.’s Mem. Supp. 9, and Obourn
has not identified any such witnesses. The one non-employee witness that American
Well anticipates calling lives in San Diego, id., in which case neither potential forum is
convenient.
This factor weighs in favor of transfer.

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3.

Access to Relevant Documents and Sources of Proof

“Modern photocopying technology and electronic storage deprive this issue of
practice or legal weight.” Id. at 310. The parties agree that this factor is neutral
because evidence can be electronically shared.
4.

Locus of Operative Facts

In a breach of contract claim, the locus of operative facts is determined by
considering where the contract was negotiated or executed, where it was to be
performed, and where the alleged breach occurred. See Open Solutions Inc. v. Granite
Credit Union, No. 3:12-CV-1353 (RNC), 2013 WL 5435105, at *3 (D. Conn. Sept. 29,
2013); Everlast World’s Boxing Headquarters Corp. v. Ringside, Inc., 928 F.Supp.2d
735, 745 (S.D.N.Y. 2013). The parties make no representations as to where the
contract was negotiated or executed. The performance of the operative portion of the
contract – the bonuses paragraph – occurred in both Massachusetts and Connecticut.
This is because the bonuses paragraph required both American Well and Obourn to
engage in activity. Specifically, American Well was required to provide Obourn with
specific criteria to be met as conditions precedent to receiving a bonus, and Obourn
was required to meet those conditions in order to receive a bonus. Although the parties
do not explicitly say so, presumably American Well’s performance occurred in
Massachusetts and Obourn’s partially in Connecticut and partially in Massachusetts,
where she frequently worked.
The alleged breach occurred in Massachusetts. To the degree that Obourn
alleges that American Well either failed to pay her bonuses or failed to provide her with
performance criteria, both of these alleged events occurred in Massachusetts. The

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creation of performance criteria by American Well appears likely to have been expected
to happen in Massachusetts. Additionally, payroll was processed in Massachusetts and
payments to employees were sent from Massachusetts, which means that the alleged
failure to pay Obourn a bonus also occurred in Massachusetts.
Accordingly, this factor militates in favor of transfer.
5.

Availability of Compulsory Process

“This factor is generally relevant only with respect to third-party witnesses, since
employees of the parties will as a practical matter be available in any venue by virtue of
the employment relationship.” MAK Mktg., 620 F.Supp.2d at 310 (internal quotation
marks omitted). American Well has only identified one potential witness who is not an
employee, see Def.’s Mem. Supp. 9, and Obourn has not identified any witnesses. The
one non-employee witness that American Well anticipates calling lives in San Diego, id.,
in which case compulsory process is equally unavailable in Connecticut and
Massachusetts. Accordingly, this factor is neutral.
6.

Relative Means of the Parties

“The purpose of the relative means factor in the section 1404(a) analysis is to
ensure the interests of justice are accounted for in situations where a “disparity exists
between the [relative means of the] parties, such as an individual plaintiff suing a large
corporation.” Zinky Elecs., LLC v. Victoria Amplifier Co., Civil Action No. 09-cv-26
(JCH), 2009 WL 2151178, at *8 (D. Conn. June 24, 2009) (quoting Berman v. Informix
Corp., 30 F.Supp.2d 653, 659 (S.D.N.Y.1998)). Although that is the case here, the
court notes that Obourn is not impoverished, as evidenced by the fact that her annual

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base salary while working at American Well was $275,000. See Contract ¶ 3.
Nevertheless, this factor militates slightly against transfer.
7.

Familiarity of the Forum with Governing Law

“The ‘governing law’ factor is to be accorded little weight on a motion to transfer
venue because federal courts are deemed capable of applying the substantive law of
other states.” MAK Mktg., 620 F.Supp.2d at 310. This remains the case even though
one of the issues in this case may involve a novel question under Massachusetts law.
Accordingly, this factor is neutral.
8.

Trial Efficiency

“[O]ne of the most important factors considered by courts in evaluating a motion
to transfer is the existence of similar litigation in the transferee district.” Putnam Bank v.
Countrywide Fin. Corp., Civil No. 3:11-cv-145 (JCH), 2011 WL 10549043, at *4 (D.
Conn. May 16, 2011) (quoting Berman, 30 F.Supp.2d at 660). Indeed, “[t]here is a
strong policy favoring the litigation of related claims in the same tribunal in order that
pretrial discovery can be conducted more efficiently, duplicitous litigation can be
avoided, thereby saving time and expense for both parties and witnesses, and
inconsistent results can be avoided.” Id. (quoting Wyndham Assocs. v. Bintliff, 398 F.2d
614, 619 (2d Cir. 1968).
As already noted, the non-compete lawsuit is currently pending in the District of
Massachusetts. Further, as American Well argues, the parties in the litigation are
exactly the same, the claims in both suits arise from Obourn’s employment with
American Well, and the non-compete agreement was incorporated into the Contract that
is the basis for this suit. Def.’s Mem. Supp. at 11. Additionally, American Well asserts

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that it will be introducing the same facts and arguments in both this action and the noncompete action, id. at 11-12, and that it will move to consolidate the cases if this case is
transferred, id. at 12. Obourn, on the other hand, argues that if, the cases are to be
consolidated anywhere, it should be in Connecticut. Pl.’s Opp’n at 6.
However, the consolidation of these two actions, which appears warranted here
and would serve judicial economy, can only occur in the District of Massachusetts,
rather than the District of Connecticut. American Well had no option but to bring its suit
in Massachusetts because of the existence of a mandatory forum selection clause in the
non-compete agreement. Although mandatory forum selection clauses can be deemed
unenforceable under certain extreme circumstances, see Indymac Mortg. Holdings, Inc.
v. Reyad, 167 F.Supp.2d 222, 245 (D. Conn. 2001), the present case does not present
such circumstances. Thus, because the only place the case can be consolidated is in
the District of Massachusetts, and because the court concludes that the cases should
be consolidated, trial efficiency and the interests of justice favor transfer.
All told, three of the factors favor transfer, three are neutral, and two oppose
transfer. However, trial efficiency and the interests of justice, one of the most important
factors, favors transfer. Further, the two factors that favor retention do so only slightly.
Accordingly, the court grants the Motion to Transfer.
V.

CONCLUSION
For the foregoing reasons, the court GRANTS American Well’s Motion to

Transfer (Doc. No. 63).

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SO ORDERED.
Dated at New Haven, Connecticut, this 19th day of October, 2015.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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