Enriquez v. Seaton, LLC

Filing 15

MEMORANDUM AND ORDER granting #7 Motion to Dismiss. Defendant's motion to dismiss (Doc. No. 7) shall be treated as a motion to transfer. The motion to transfer shall be granted and this case shall be transferred to the Northern District of Illinois, Eastern Division. Signed by District Judge Richard D. Rogers on 2/26/14. (meh) [Transferred from Kansas on 2/28/2014.]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SARAH M. ENRIQUEZ,

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Plaintiff,
v.
SEATON,LLC d/b/a
STAFF MANAGEMENT,
Defendant.

Case No. 13-1474-RDR

MEMORANDUM AND ORDER
Plaintiff is a former employee of defendant who filed a
state

court

County,

petition

Kansas

position

at

in

alleging

defendant’s

the
that

District
she

facility

Court

was
in

for

terminated

Coffeyville,

Montgomery
from

her

Kansas

in

retaliation for filing a workers compensation claim. Plaintiff
currently resides in Texas.

Defendant removed the case to this

court on the grounds of diversity jurisdiction.
This case is now before the court upon defendant’s motion
to dismiss for improper venue pursuant to FED.R.CIV.P. 12(b)(3).
Defendant’s
contained
plaintiff.

motion
in

a

is

based

one-page

upon

a

forum-selection

employment

agreement

clause

signed

by

Defendant contends that the clause requires that

this case be brought in Chicago, Illinois.

The clause states:

I agree that this agreement and the performance
hereunder shall be governed by the laws of Illinois.
All suits arising from this agreement and the
performance
hereunder
shall
be
brought
in
the

appropriate court in Chicago, Illinois.
I shall be
responsible for any and all litigation and collections
costs and expenses, including attorney’s fees, in any
manner arising from any breach of, or the failure to
perform under, this agreement.
In further support of its motion, defendant asserts that it is a
Chicago-based company that employs 10,276 people in 23 states,
and that all of its managerial team, business records, and human
resources files are maintained in Chicago.
Upon

review

and

consideration,

the

court

shall

treat

defendant’s motion as a motion to transfer under 28 U.S.C. §
1404(a).

The

court

shall

grant

the

motion

to

transfer

and

direct that this case be transferred to the Northern District of
Illinois and assigned to a court located in Chicago.
I.
Defendant’s motion to dismiss under FED.R.CIV.P. 12(b)(3)
should be treated as a motion to transfer under § 1404(a).
Venue is proper in this court for the purposes of 28 U.S.C.
§

1391.

This

case

is

in

“a

judicial

district

in

which

a

substantial part of the events or omissions giving rise to the
claim occurred.”

§ 1391(b)(2).

In the recent case of Atlantic

Marine Construction Co., Inc. v. U.S. District Court, 134 S.Ct.
568, 577 (2013), the Supreme Court held that a motion to dismiss
for “improper venue” under Rule 12(b)(3) was not the proper
device

to

authorized

enforce
under

§

a

forum-selection

1391.

Instead,

clause
the

when

proper

venue
approach

was
to

enforce a forum-selection clause is to file a motion to transfer

2

under

§

1404(a).

Id.

at

579.

So,

the

court

shall

treat

defendant’s motion to dismiss as a motion to transfer.1
II.

Transfer is proper under § 1404(a).
Section 1404(a) provides that:

“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

defendant

which

is

all

relying

parties
upon

have

the

consented.”

consent

of

the

Obviously,
parties

as

demonstrated in the forum-selection clause as the major factor
in support its motion.
A.
The

The forum selection clause is mandatory.
court

believes

the

meaning

of

the

forum-selection

clause should be interpreted according to Illinois law and that
under such law, the clause should be considered mandatory.

The

Tenth Circuit has suggested that Illinois law should be applied
in this instance where the parties have designated that the
employment agreement is governed by the laws of Illinois.

Yavuz

v. 61 MM, Ltd., 465 F.3d 418, 428 (10th Cir. 2006).

Under

Illinois law, the forum-selection provisions in this case would
be

considered

Maschinen

GmbH,

as

mandatory.

972

F.2d

Paper

753,

756

Exp.,
(7th

Ltd.

Cir.

v.

Pfankuch

1992)(“shall

be

filed” coupled with “all disputes,” manifests a mandatory venue
1

The parties were given notice of the court’s intention to treat the motion
to dismiss as a motion to transfer and no objections have been made.

3

clause);

Continental Cas. Co. v. LaSalle Re Ltd., 500 F.Supp.2d

991, (N.D. Ill. 2007)(indicating that language stating that “all
disputes

shall

be

resolved

in

an

Illinois

court”

would

be

considered mandatory); Calanca v. D & S Mfg. Co., 510 N.E.2d 21,
22-23 (Ill.App. 1987)(the word “shall” is interpreted to mean
that the stated forum is exclusive).
B.
The
forum-selection
retaliation claim.

clause

covers

plaintiff’s

Plaintiff states in her opposition to defendant’s motion
that “[t]here was no agreement by Plaintiff to waive her right
to bring her tort claim in Kansas, the forum most convenient to
her.”

Doc. No. at p. 6.

If this statement is a claim that the

forum-selection clause only covers contract claims, not tortious
retaliation claims, the court rejects it.

Once again, the court

applies Illinois law.
The forum-selection clause covers:
this

[employment]

agreement

and

the

“All suits arising from
performance

hereunder.”

Under plain-language principles of contract construction, which
Illinois

follows

of

course,

plaintiff’s

covered by the forum-selection clause.

retaliation

claim

is

See Abbott Laboratories

v. Takeda Pharmaceutical Co. Ltd., 476 F.3d 421, 424-26 (7th Cir.
2007)(where

forum

selection

clauses

applies

to

litigation

of

“disputes” that arise out of the contract, it covers breach of
fiduciary duty claim); Walker v. Carnival Cruise Lines, Inc.,

4

681

F.Supp.

470,

477

n.10

(N.D.Ill.

1987)(applying

forum

selection clause to tort and contract claims although the clause
states

that

it

covers

disputes

arising

under

contract);

see

also, Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974)(fraud
claim

arising

out

of

agreement

to

purchase

certain

business

enterprises falls within arbitration clause governed by Illinois
law).
C.

The forum-selection clause is enforceable.

The court shall apply federal law in determining whether
the

forum-selection

clause

is

enforceable.

Bloomberg LP, 740 F.3d 211, 217 (2nd Cir. 2014).

Martinez

v.

The Supreme

Court in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10
(1972) held that a mandatory forum-selection clause is prima
facie valid and should be enforced unless “unreasonable” under
the circumstances.

The burden of proving unreasonableness is a

heavy one, which requires a “strong showing” that the chosen
forum should be set aside.

Bremen, 407 U.S. at 15.

To overcome

the presumption that a forum selection provision is valid, a
party must make “a showing of inconvenience so serious as to
foreclose a remedy, perhaps coupled with a showing of bad faith,
overreaching or lack of notice.”

Teran v. GB Intern., S.P.A.,

920 F.Supp.2d 1176, 1183 (D.Kan. 2013)(quoting Riley v. Kingsley
Underwriting Agencies, Ltd., 969 F.2d 953, 958 (10th Cir. 1992)).
Or, “if enforcement would contravene a strong public policy of
5

the forum in which suit is brought, whether declared by statute
or by judicial decision,” a forum-selection clause may not be
enforced.

Bremen, 407 U.S. at 15.

Plaintiff

has

not

shown

that

enforcement

selection clause would be unreasonable.

forum-

This is not sufficient

The clause was one paragraph of five

in a short, one-page employment agreement.
agreement.

the

Plaintiff states that

the clause was not discussed with her.
to prove unreasonableness.

of

Plaintiff signed the

The fact that it was not discussed with plaintiff

does not prove that the clause was hidden from plaintiff or not
communicated to her.2
Plaintiff also argues that the clause makes enforcement of
plaintiff’s

workers’

compensation

rights

inconvenient

therefore is contrary to Kansas public policy.

and

The court does

not believe that the inconvenience alleged by plaintiff is so
severe as to foreclose plaintiff’s remedy for alleged illegal
retaliation.
applying

An Illinois federal district court is capable of

Kansas

or

Illinois

law

plaintiff’s rights have been violated.

and

determining

whether

The court has considered

plaintiff’s citation to Coleman v. Safeway Stores, Inc., 752
P.2d 645 (Kan. 1988) and Pfeifer v. Federal Express Corporation,

2

In general support of this point, the court notes that in Mann v. Automobile
Protection Corp., 777 F.Supp.2d 1234, 1240-41 (D.N.M. 2011) several cases
were surveyed in support of the holding that such factors as unequal
bargaining position and form contracts did not invalidate a forum-selection
provision.

6

304 P.3d 1226 (Kan. 2013).
claim

for

retaliation

Neither case holds that a state law
against

the

exercise

of

workers’

compensation rights can only be heard in the State of Kansas.
Unlike

the

collective

bargaining

agreement

in

Coleman,

the

forum-selection clause in this case does not limit a judicial
remedy for alleged illegal retaliation, it only makes the remedy
less convenient.

Unlike the employment contract in Pfeifer, the

forum-selection clause in this case does not shorten the time
for

bringing

a

claim

by

75%.

In

sum,

the

cases

are

distinguishable.
For the above-stated reasons, plaintiff has failed to show
that the forum-selection clause is unenforceable.
D.

Transfer is justified under § 1404(a).

In Atlantic Marine, the Court stated that under § 1404(a)
in cases not involving a forum-selection clause, a court must
weigh and balance convenience of the parties and various public
interest considerations and determine whether a transfer would
serve the convenience of parties and witnesses and otherwise
promote the interest of justice.

134 S.Ct. at 581.

But, “[t]he

calculus changes . . . when the parties’ contract contains a
valid

forum-selection

clause,

which

‘represents

agreement as to the most proper forum.’

the

parties’

Id. (quoting Stewart

Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988)).

“‘[A] valid

forum-selection clause [should be] given controlling weight in
7

all but the most exceptional cases.’”
U.S. at 33 (Kennedy, J., concurring)).
forum merits no weight.

Id. (quoting Stewart, 487
“[P]laintiff’s choice of

Rather, as the party defying the forum-

selection clause, the plaintiff bears the burden of establishing
that transfer to the forum for which the parties bargained is
unwarranted.”

Id.

Furthermore, a court should not consider

arguments about such “private interests” as inconvenience for
the parties or for their witnesses or for their pursuit of the
litigation.

Id. at 582.

A court may consider “arguments about

public-interest factors only.

Because those factors will rarely

defeat a transfer motion, the practical result is that forumselection clauses should control except in unusual cases.”

Id.

This does not appear to be an exceptional or unusual case.
The court is not aware of any public-interest factors which
strongly counsel against transfer in this instance.3

Therefore,

after considering the language of § 1404(a) in light of Atlantic
Marine, the court shall order the transfer of this case to the
Northern District of Illinois, Eastern Division.
III.

Conclusion
For the above-stated reasons, defendant’s motion to dismiss

(Doc. No. 7) shall be treated as a motion to transfer.
3

The

In Atlantic Marine, the Court identified “public-interest factors” as
including: “’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.’” 134 S.Ct. at 581 n.6 (quoting Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 241 n.6 (1981)).

8

motion

to

transferred

transfer
to

shall

the

be

granted

Northern

and

District

of

this

case

Illinois,

shall

Eastern

Division.
IT IS SO ORDERED.
Dated this 26TH day of February, 2014, at Topeka, Kansas.

s/Richard D. Rogers
Richard D. Rogers
United States District Judge

9

be