Ayyash v. Horizon Freight System, Inc. et al

Filing 96

MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 11/15/2018. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MOHAMMED AYYASH and
FADI HAFEZ,
Plaintiffs,
v.
HORIZON FREIGHT SYSTEM, INC., et al.,
Defendants.

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No. 15-cv-10296
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Plaintiffs Mohammed Ayyash and Fadi Hafez worked as drivers for Defendant Horizon
Freight System, Inc. (“Horizon”). They have brought this putative class action alleging that
Horizon, its president David Ferrante, and its terminal manager and owner Trent Fairbanks
(collectively, “Defendants”) incorrectly classified drivers as independent contractors rather than
employees, made unlawful deductions from drivers’ paychecks, failed to pay drivers for all work
performed, and paid drivers less than minimum wage. Before the Court is Defendants’ motion to
dismiss Hafez’s claims pursuant to the doctrine of forum non conveniens, in which Defendants’
argue that Hafez’s claims should be litigated in the Court of Common Pleas of Cuyahoga County,
Ohio, pursuant to the forum-selection clause in his agreement with Horizon. For the reasons
discussed below, the motion is granted.
BACKGROUND
As alleged in the First Amended Complaint (“FAC”), Horizon is a nationwide provider of
trucking services headquartered in Ohio. (FAC ¶¶ 7, 15, Dkt. No. 58.) Ferrante, Horizon’s
president, also resides in Ohio. (Id. ¶¶ 7, 8.) In addition, Horizon has a facility in Illinois, where
Fairbanks works as the terminal manager and owner. His position involves, among other duties,

hiring and disciplining Horizon drivers, supervising their work, and making and enforcing rules.
(Id. ¶¶ 7, 9.)
Ayyash and Hafez, both residents of Illinois, worked as drivers for Horizon. (Id. ¶¶ 3, 4.)
Their agreements with Horizon specify that they were independent contractors even though,
according to Ayyash and Hafez, they were actually Horizon’s employees. (Id. ¶ 1.) Ayyash and
Hafez also allege that Defendants deducted certain operating expenses from their pay without
authorization. Those deductions included expenses associated with truck leases, insurance, fuel,
maintenance, repairs, tolls, base plates, lubricants, tires, workers’ compensation coverage, phone
and communication charges, equipment fees, and administration. (Id. ¶ 27.) Some of the expenses
should have been borne by their employer. (Id. ¶ 28.) The deductions were so large that they
would sometimes amount to over 25% of Ayyash’s total wages. (Id. ¶ 29.) As a result, Ayyash
was paid less than a federal minimum wage or was not paid for all the hours he worked. (Id. ¶ 30.)
This action was originally brought only by Ayyash, individually and on behalf of a class
of similarly-situated plaintiffs. Hafez was added as a plaintiff in the FAC, which is now the
operative complaint. The FAC asserts claims by Ayyash and Hafez (again, individually and on
behalf of a putative class of similarly-situated plaintiffs) under the Illinois Wage Payment and
Collection Act (“IWPCA”), 820 ILCS 115/1 et seq., arising from Defendants’ allegedly illegal
deductions. Ayyash also claims that Defendants violated the IWPCA by failing to compensate
him for all work performed at the rates agreed upon by the parties, and he has brought claims
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., alleging that Defendants
failed to pay at least federal minimum wage for all hours worked.
Although both are named as plaintiffs in this action, Ayyash’s and Hafez’s agreements
with Horizon differ. Unlike Ayyash, Hafez has a forum-selection clause in his agreement, which

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designates the Court of Common Pleas of Cuyahoga County, Ohio as the sole forum for any and
all legal proceedings related to that agreement. (See Dkt. No. 37 at 2; Ex. A to Mot. to Dismiss at
6, Dkt. No. 64-1.) That forum-selection clause is the subject of the present motion.
DISCUSSION
The doctrine of forum non conveniens permits a court, in its discretion, to dismiss an
action over which it would normally have jurisdiction when there is an adequate alternative forum
in which the case may be more conveniently heard. Kamel v. Hill–Rom Co., Inc., 108 F.3d 799,
802 (7th Cir. 1997). Typically, a forum non conveniens analysis involves two steps. First, an
adequate alternative forum must be available to hear the case. Id. at 802. If this threshold
condition is satisfied, the Court must then weigh the private interests of litigants and the public
interests of the forum to determine whether a transfer would serve the convenience of parties and
witnesses and otherwise promote the interest of justice. See id.; see also Atl. Marine Constr. Co.
v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568, 581 (2013). The private interest factors
include the relative ease of access to sources of proof, availability of compulsory process for
attendance of unwilling witnesses, the cost of obtaining such attendance, the possibility of
viewing relevant premises, and “all other practical problems that make a trial easy, expeditious
and inexpensive.” Atl. Marine Const. Co., 134 S. Ct. at 581 n.6. Public interest factors include
administrative difficulties flowing from court congestion, local interest in having localized
controversies decided at home, and the interest in having a trial in a forum that is at home with the
law. Id. The Court must also give some weight to the plaintiffs’ choice of forum. Id. The burden is
on the defendants to demonstrate that on balance the factors weigh in favor of dismissal. See
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 423 (2007).

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The forum non conveniens analysis changes, however, when the parties’ contract contains
a valid forum-selection clause, because the clause represents the parties’ agreement on the proper
forum and thus its enforcement protects the parties’ legitimate expectations and furthers vital
interests of the justice system. Atl. Marine Const. Co., 134 S. Ct. at 581. Importantly, under those
circumstances, the plaintiff’s choice of forum merits no weight. Instead, “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. The Court should not consider the parties’ private
interest factors and instead must deem those factors to weigh entirely in favor of the preselected
forum. Id. at 582. Therefore, the Court may only consider arguments about public interest factors.
Id. And because public interest factors will rarely be determinative, the practical result is that
forum-selection clauses should control except in unusual cases. Id.
I.

Forum-Selection Clause in Hafez’s Agreement with Horizon

Turning to the forum-section clause in Hafez’s agreement with Horizon, the relevant
provision is found in Section 18 of the agreement. It provides:
Governing Law, Consent to Jurisdiction
All questions concerning the validity, intention, or meaning of this Agreement, or
relating to performance or breach under the Agreement shall be construed and
resolved in accordance with the laws of the State of Ohio and applicable federal
law. Each party hereby designates the Court of Common Pleas of Cuyahoga
County, Ohio as the court of proper jurisdiction and venue of and for any and all
legal proceedings relating to this Agreement, hereby unequivocally consents to
such designation, jurisdiction and venue, hereby waives any objections or defenses
relating to the jurisdiction or venue with respect to any legal proceedings initiated
in, or transferred to, the Court of Common Pleas of Cuyahoga County, Ohio.
(Ex. A to Mot. to Dismiss at 6, Dkt. No. 64-1 (emphasis added).) The parties disagree on what
law governs the validity of this forum-selection clause. Defendants argue that its validity must be
determined according to Ohio law, i.e., the law designated in the choice of law clause of Hafez’s

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agreement.1 Plaintiffs, on the other hand, argue that the choice-of-law provision in Hafez’s
agreement with Horizon is invalid and therefore Illinois law applies.2 A third option would be to
determine the validity of the forum-selection clause according to federal common law. This Court
need not resolve the choice-of-law issue for present purposes, however. As explained below, the
forum-selection clause is valid regardless of whether federal, Ohio, or Illinois law applies.
A.

Validity of Forum-Selection Clauses under Federal, Illinois, and
Ohio Law

Under federal law, a forum-selection clause is presumed to be valid—to overcome this
presumption, the opposing party must show that the clause is “unreasonable under the
circumstances.” Bonny v. Society of Lloyd’s, 3 F.3d 156, 160 (7th Cir. 1993). Courts construe this
“unreasonable under the circumstances” exception narrowly. Id. A clause is “unreasonable” if its
incorporation into a contract was the result of fraud, undue influence, or overwhelming bargaining
power, if the selected forum is so gravely inconvenient that the opposing party will be deprived of

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In support of their position, Defendants cite Jackson v. Payday Financial, LLC, 764 F.3d 765 (7th Cir.
2014), in which the Seventh Circuit acknowledged that while some courts apply federal law to determine
the enforceability of a forum-selection clause in diversity cases, this Circuit follows a different approach
under which the validity of a forum-selection clause is determined “by reference to the law of the
jurisdiction whose law governs the rest of the contract in which the clause appears, rather than making the
court apply two different bodies of law in the same case.” Id. at 774–75. Thus, the law designated in the
choice-of-law clause determines the validity of the forum-selection clause. Id. at 775. But Defendants do
not explain why Jackson would apply to a non-diversity case, such as the present case—especially in light
of Bonny v. Society of Lloyd’s, 3 F.3d 156, 160 (7th Cir. 1993), a federal-question jurisdiction case in
which the Seventh Circuit applied federal law to determine the validity of the forum-selection clause in the
contract, even though it also contained a choice-of-law provision. See Jackson, 764 F.3d at 776
(acknowledging that the Bonny court applied federal law for determining the validity of a forum-selection
clause). Defendants also do not explain why, even if Jackson applies, Ohio law would necessarily govern
the validity of the forum-selection clause, when the choice-of-law clause in Hafez’s agreement also
references federal law. (See Ex. A to Mot. to Dismiss at 6 (“All questions concerning the validity . . . of
this Agreement . . . shall be construed and resolved in accordance with the laws of the State of Ohio and
applicable federal law.”).)
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Hafez also cites Jackson, but for its holding that because the choice-of-law clause was invalid, Illinois
law governed the validity of the forum-selection provision. 764 F.3d at 777.

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its day in court, or if enforcement of the clause contravenes a strong public policy of the forum.
Id.
Illinois courts analyze forum-selection clauses in a similar manner. Such clauses are
presumptively valid and should be enforced unless the opposing party shows that enforcement
would be unreasonable under the circumstances. Calanca v. D & S Mfg. Co., 510 N.E.2d 21, 23
(Ill. App. Ct. 1987). To be unenforceable, a forum-selection clause must contravene the strong
public policy of the forum, or the chosen forum must be seriously inconvenient for the trial of the
case. Id. However, a forum-selection clause contained in boilerplate language indicates unequal
bargaining power, and its significance is reduced. See Williams v. Ill. State Scholarship Comm’n,
563 N.E.2d 465, 487 (Ill. 1990); see also IFC Credit Corp. v. Rieker Shoe Corp., 881 N.E.2d 382,
389 (Ill. App. Ct. 2007). To determine whether a forum-selection clause is unreasonable, Illinois
courts look at the following factors: (1) the law governing the formation and construction of the
contract; (2) the residency of the parties; (3) the place of execution and performance of the
contract; (4) the location of the parties and witnesses; (5) the inconvenience to the parties of any
particular location; and (6) whether the clause was equally bargained for. Calanca, 510 N.E.2d at
23–24.
Under Ohio law, a forum-selection clause in a commercial contract between business
entities is upheld, “so long as [its] enforcement does not deprive litigants of their day in court.”
Kennecorp Mortg. Brokers, Inc. v. Country Club Convalescent Hosp., Inc., 610 N.E.2d 987, 989
(Ohio 1993). Thus, “absent evidence of fraud or overreaching, a forum[-]selection clause
contained in a commercial contract between business entities is valid and enforceable, unless it
can be clearly shown that enforcement of the clause would be unreasonable and unjust.” Id.
However, when it comes to a forum-selection clause in an employment contract, the law is less

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settled. See Zilbert v. Proficio Mortg. Ventures, L.L.C., No. 100299, 2014 WL 1776004, at *5
(Ohio App. Ct. May 1, 2014); see also IntraSee v. Ludwig, Nos. 10CA009916, 11CA010024,
2012 WL 2236609, at *2 (Ohio App. Ct. June 18, 2012). Generally, a forum-selection clause in an
employment contract will be enforced unless the opposing party establishes that enforcement
would violate a strong public policy of the forum, the clause is the result of fraud or overreaching,
or enforcement would, in the particular circumstances of the case, result in litigation in a
jurisdiction so seriously inconvenient as to be unreasonable. Zilbert, 2014 WL 1776004, at *4.
Like Illinois courts, Ohio courts look at the following factors to determine if a forum is
unreasonable: (1) the law controlling the contractual dispute; (2) the residency of the parties; (3)
where the contract was executed; (4) where the witnesses and parties are located; and (5) whether
the forum clause’s designated location is inconvenient to the parties. Id. at *5; see also Original
Pizza Pan v. CWC Sports Grp., Inc., 954 N.E.2d 1220, 1223–24 (Ohio App. Ct. 2011).
B.

Whether the Forum-Selection Clause Violates Public Policy

Plaintiffs argue that the choice-of-law clause in Hafez’s agreement with Horizon is
unenforceable as against Illinois public policy because the clause essentially waives Hafez’s
rights under the IWPCA.3 Hence, according to Plaintiffs, the forum-selection clause in Hafez’s
agreement is unenforceable because it is part of the same non-severable contract as the allegedly
unenforceable choice-of-law clause. In support of this argument, Plaintiffs cite three cases—all of
which address express waivers and thus none of which are persuasive here.
For example, in O’Brien v. Encotech Construction Services, Inc., 183 F. Supp. 2d 1047,
1048 (N.D. Ill. 2002), after an unsuccessful settlement conference, the employer-defendant called
employees into the office and asked them to sign a release of claims arising under the FLSA, the
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Hafez makes clear that he does not intend to argue that every choice of law provision is unenforceable,
but rather that the specific provision in his agreement is invalid because Ohio law does not offer
substantially-similar protections or remedies as does the IWPCA.

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Illinois Minimum Wage Law, and the IWPCA in return for monetary compensation. Id. The
O’Brien court found such releases void. Id. at 1052. Likewise, the release at issue in Ladegaard v.
Hard Rock Concrete Cutters, Inc., No. 00-cv-5755, 2001 WL 1403007, *1 (N.D. Ill. Nov. 9,
2001), fully released the defendant from any claims under the FLSA, the Illinois Minimum Wage
Law, and the IWPCA. The defendant raised an affirmative defense based on those releases. But
the Ladegaard court struck the defense, holding that the releases were void as a matter of law. Id.
at *7. Lewis v. Giordano’s Enterprises, Inc., 921 N.E.2d 740 (Ill. App. Ct. 2009), also dealt with
express releases of claims arising under the Illinois Minimum Wage Law and the IWPCA. Those
releases were circulated by the defendants while the motion for class certification was pending in
front of the court; the court held that the releases were void. Id. at 742, 753. In short, none of the
cases that Plaintiffs cite supports the general proposition that a choice-of-law clause is invalid as
violating public policy if it designates a law other than Illinois law (such as Ohio law).
To the contrary, several courts have upheld choice-of-law clauses in suits arising under the
IWPCA. For example, in Cornell v. BP America Inc., No. 14 C 2123, 2015 WL 5766931, at *4
(N.D. Ill. Sept. 30, 2015), the plaintiff argued that the choice-of-law provision in his benefits
agreement, which designated English law, could not apply because an employee could not waive
or release his rights under the IWCPA. The Cornell court rejected that argument, distinguishing
the case from O’Brien and Ladegaard as there was no express waiver involved in the case and the
plaintiff had provided no basis for the court to conclude that English law would not allow the
plaintiff to bring an IWPCA claim. Id. at *5. Likewise, in Lubinski v. Hub Group Trucking, Inc.,
No. 214CV02843JPMDKV, 2015 WL 10732716, at *3 (W.D. Tenn. Sept. 22, 2015), the plaintiff
argued that a choice-of-law clause designating Tennessee law violated the public policy behind
the IWPCA. But the Lubinski court rejected the argument, stating that “[w]hile it is clear that

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under Tennessee law, Plaintiff would not have a claim for IWPCA violations, whereas he would
have a claim in Illinois, Plaintiff [was] not without recourse,” as Tennessee common law
permitted unjust enrichment claims and the plaintiff could also bring claims under the FLSA. Id.
at *4.
Moreover, the Illinois Department of Labor appears to view choice-of-law clauses
designating non-Illinois law as enforceable—the Department’s web-site informs visitors that an
employee may not have a claim “[i]f the employment contract has a ‘choice of law’ clause
requiring [the employee] to bring all claims in a state other than Illinois.” Wage Payment and
Collection Act FAQ, Illinois Department of Labor,
https://www.illinois.gov/idol/FAQs/Pages/wage-payment-faq.aspx (last visited November 14,
2018). Hence, Plaintiffs’ argument that the forum-selection clause is invalid because the choice of
law clause violates public policy must fail.
C.

Unequal Bargaining Power and Lack of Ties to Ohio

Plaintiffs next argue that regardless of the validity of the choice-of-law clause, the Court
should not enforce the forum-selection clause because he had no bargaining power to negotiate it
and because the present case has no ties to Ohio with respect to the IWPCA claims, except for the
location of Horizon’s headquarters. But a mere lack of bargaining power on the part of one party
to a contract does not make a forum-selection clause invalid. Likewise, mere inconvenience to the
opposing party is not sufficient to invalidate a forum-selection clause as “unreasonable.”
For example, in Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991), the Supreme Court
upheld a non-negotiated forum-selection clause in a cruise line’s ticket, even though the parties
had unequal bargaining power and the selected forum (the state of the cruise line’s principal place
of business) was inconvenient for plaintiffs who resided in a different state. Id. at 593–95.
Similarly, Illinois Appellate Courts have upheld forum-selection clauses in agreements between
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employees and employers, even though those clauses did not designate the state where the
employee resided. See Aon Corp. v. Utley, 863 N.E.2d 701, 707 (Ill. App. Ct. 2006) (upholding a
forum-selection clause in an employee-employer agreement, even though the clause designated
the state where the employer was headquartered, not the state where the employee resided and
where the employer had an office); see also Calanca, 510 N.E.2d at 24 (upholding a forumselection clause in an employment contract between a salesman and a corporation, even though
the designated forum, where the corporation resided, was inconvenient for the salesman, who
resided in a different state). And in IntraSee, the Ohio Appellate Court upheld a forum-selection
clause in an employment agreement, notwithstanding the unequal bargaining power between the
parties and the designation of the state of the principal place of business of the employer as the
forum and not the state where the employee resided. IntraSee, 2012 WL 2236609, at *3 (“[t]he
unequal bargaining power of the parties or lack of ability to negotiate over the clause cannot, in
itself, support a finding of overreaching;” “[m]ere distance, mere expense, or mere hardship to an
individual litigant is insufficient to invalidate a forum[-]selection clause”). While in Zilbert, the
Ohio Appellate Court noted that it was “not advocating that a forum[-]selection clause in an
employment contract should never be enforced, or freely invalidated,” and that “mere distance,
mere expense, or mere hardship to an individual litigant is insufficient to invalidate a forum
selection clause,” even though it ultimately struck the forum-selection clause in an employment
contract, where the designated a forum was neither employee’s nor employer’s residence state.
Zilbert, 2014 WL 1776004, at *4, 5.
Plaintiffs claim that “there is no evidence that Hafez or any of the putative plaintiffs had
any sort of bargaining power with respect to the forum[-]selection clause.” (Pl.’s Resp. at 11, Dkt.
No. 68.) They point to Defendants’ statement that the agreement at issue was a “template lease.”

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(Id.) But they do not explain how this results in any sort of overreaching by Defendants. Cf.
Williams v. Ill. State Scholarship Comm’n, 563 N.E.2d 465, 486 (Ill. 1990) (a forum-selection
selection clause had reduced significance because it was in adhesion contracts between a loan
program operator and student borrowers).
Plaintiffs’ argument that Ohio constitutes an unreasonable forum also fails. Looking at the
factors that both Ohio and Illinois courts weigh when determining unreasonableness, this Court
cannot conclude that Plaintiffs have met their burden of showing that Hafez’s forum-selection
clause is invalid. First, the controlling law factor does not weigh in favor of Plaintiffs, as Hafez’s
agreement has a choice of law provision designating Ohio law. See Aon Corp., 863 N.E.2d at 707
(the factor weighed in favor of the forum designated in the forum-selection clause because the
agreement was governed under the choice of law clause by that forum’s law); see also Zilbert,
2014 WL 1776004, at *5 (the factor did not weigh heavily in favor of one jurisdiction over the
other because the defendant would receive the benefit of its choice of law even if the case was not
tried in the chosen forum, as other courts could apply the law of the choice-of-law clause).
Second, the parties’ residency does not weigh heavily in favor of Plaintiffs. (FAC ¶¶ 4, 7–9, Dkt.
No. 58 (alleging that Hafez and Defendant Fairbanks reside in Illinois, while Defendant Horizon
is headquartered in Ohio (with facilities in Illinois), and Defendant Ferrante is located in Ohio).)
Third, while the agreement’s place of performance appears to weigh in favor of Plaintiffs, it is
unclear that the same could be said for the agreement’s execution. (FAC ¶ 4; Ex. A to Mot. to
Dismiss at 7, Dkt. No. 64-1 (the agreement was signed by Hafez, who resides in Illinois, and by
Horizon’s President, who is in Ohio).) Fourth, while Plaintiffs claim that most of the evidence is
located in Illinois and that Hafez (and other class members) are in Illinois, Plaintiffs have not

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provided any specific physical or financial reason why he cannot travel to or litigate in Ohio, the
forum convenient for Defendants.
In sum, Plaintiffs have failed to meet his burden of establishing that Ohio is a gravely
inconvenient forum such as to effectively deprive him of a meaningful day in court. Cf. Zilbert,
2014 WL 1776004, at *5 (holding that a forum-selection clause designating the forum where
neither party resided was unreasonable). As a result, Plaintiffs’ argument that the forum-selection
clause in his agreement is unenforceable fails.
II.

Atlantic Marine Factors

Having concluded that the forum-selection clause in Hafez’s agreement is valid, the Court
proceeds with the forum non conveniens analysis under Atlantic Marine. If the Court of Common
Pleas of Cuyahoga County, Ohio is an adequate alternative forum, then this Court need only
weigh the public interest factors. Atl. Marine Const. Co., 134 S. Ct. at 582. Hafez’s choice of
forum merits no weight, and the Court deems factors relating to the parties’ private interests as
weighing entirely in favor of the Ohio court. See id. at 581–82.
A forum meets the adequate alternative forum requirement if the forum is both available
and adequate. Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847, 867 (7th Cir. 2015). “An
alternative forum is available if all parties are amenable to process and are within the forum’s
jurisdiction.” Id. (internal quotation marks omitted). A forum is adequate when the parties will not
be deprived of all remedies or treated unfairly. Id. Here, Plaintiffs do not dispute that the Ohio
court is an available forum. Rather, Plaintiffs argue that the Ohio court is not an adequate forum
because Ohio judges are unfamiliar with the IWPCA and, if Ohio law applies, he would
improperly be stripped of rights provided under the IWPCA.

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But federal and state courts routinely apply the law of states other than the state in which
they sit. Atlantic Marine, 134 S. Ct. at 584. Moreover, the fact that Ohio courts might subject
Hafez to laws and remedies different or less favorable than those available in Illinois is not alone
sufficient to deny enforcement of a forum-selection clause. Bonny, 3 F.3d at 162. And the Court is
not aware of any other reason why the designated Ohio forum would arguably treat Hafez unfairly
or deprive him of remedies. Therefore, Plaintiffs have failed to convince this Court that the
designated Ohio forum is inadequate.
Next, as the Atlantic Marine Court explained, public factors are rarely decisive and as a
result, “forum-selection clauses should control except in unusual cases.” Atl. Marine Const. Co.,
134 S. Ct. at 582. Nonetheless, Plaintiffs argue that the public interest factors weigh against
transfer to an Ohio forum. They stress that Hafez himself—and every putative class member for
the IWPCA claim—is tied to Illinois either though citizenship or because the work was
substantially performed in the state. Plaintiffs contend that Illinois has a strong interest in
enforcing the IWPCA, while Ohio has no interest in application of the statute. But Plaintiffs
ignore that Ohio also has an interest in this proceeding, as the majority of Defendants are based
there. Hence, in accordance with Atlantic Marine, the public factors do not defeat this forum non
conveniens motion.
Plaintiffs also argue that Defendants’ motion should be denied because it seeks an
improper and inefficient segregation of claims. Plaintiffs suggest that this is an issue of first
impression in this jurisdiction but point to other courts that have addressed similar scenarios.
However, this Court finds no reason to deviate from the Atlantic Marine analysis. None of the
cases cited by Plaintiffs are on point. For example, in Jon Feingersh Photography, Inc. v. Pearson
Education, Inc., 978 F. Supp. 2d 463, 465 (E.D. Pa. 2013), the plaintiff brought 321 separate

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claims against the defendant for copyright infringement relating to photographs in federal court in
Pennsylvania. The defendant had various licensing agreements relating to the photographs—some
agreements designated Washington as the forum for disputes, some agreements designated New
York, and some claims were not covered by any agreements. Id. The court denied the defendant’s
motion to transfer venue to New York, holding that it would be an immense waste of judicial and
the parties’ resources to litigate the claims in multiple forums in accordance with the conflicting
forum-selection clauses. Id. at 468. In Capsource Financial, Inc. v. Moore, No. CIV. 11-2753
JRT/TNL, 2012 WL 2449935, at *1 (D. Minn. Jun. 27, 2012), another case cited by Plaintiffs, the
defendants allegedly interfered with and competed against the plaintiffs’ business in violation of
several agreements between the parties. Two of the agreements had forum-selection clauses; the
clauses designated different forums. Id. at *2. The court enforced only one forum-selection clause,
holding that enforcing both would result in the parties litigating the same claims in multiple
forums. Id. *4.
Here, the situation is different. This is not a situation in which multiple claims between the
same parties are covered by conflicting forum-selection clauses. Rather, Hafez and Ayyash have
different agreements with Horizon, with only Hafez having the forum-selection clause designating
Ohio. Moreover, the cases cited by Plaintiffs were decided prior to Atlantic Marine, and it is
questionable whether they remain good law today. See Black v. Sprouts Farmers Mkt., Inc., No.
15-CV-01297-REB-MJW, 2015 WL 7351511, at *3 (D. Colo. Nov. 19, 2015) (questioning
validity of Jon Feingersh Photography in the view of Atlantic Marine).
Plaintiffs further argue that Defendants have waived their forum non conveniens argument
by “aggressively” litigating in this Court. Plaintiffs do not elaborate on their intended meaning in
using the term “aggressively.” Instead, they cite National Feeds, Inc. v. United Pet Foods, Inc.,

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118 F. Supp. 3d 972, 973 (N.D. Ohio 2015), in which the defendant litigated the case for three
years and engaged in a considerable motion practice before moving to dismiss for lack of personal
jurisdiction and venue. Id. The court denied the motion. Id. at 974. But National Feeds is not
binding on this Court. Moreover, the case is readily distinguishable from the present situation.
The original complaint in this action was filed with only Ayyash as the only plaintiff, and his
agreement with Horizon does not have an Ohio forum-selection clause. Defendants could not
have raised their challenge to Hafez’s claims before he was even included in the complaint. And
once the complaint was amended to add Hafez, Defendants timely and diligently pursued their
forum non conveniens argument. Accordingly, this argument fails as well.
CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss (Dkt. No. 64) is granted.
Hafez’s claims are dismissed without prejudice. Consistent with the forum-selection clause in his
agreement with Horizon, he may bring his claims in the Court of Common Pleas of Cuyahoga
County, Ohio, if he so desires.
ENTERED:

Dated: November 15, 2018

__________________________
Andrea R. Wood
United States District Judge

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