Works Computing, Inc. v. Peterson et al

Filing 22

ORDER granting in part and denying in part 7 Motion to Remand to State Court and denying as moot 11 Motion for TRO, 17 Motion to Dismiss for Lack of Jurisdiction. (Written Opinion) Signed by Judge Patrick J. Schiltz on 3/9/2018. (CLG)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
WORKS COMPUTING, INC., a
Minnesota corporation,

Case No. 18 CV 0566 (PJS/FLN)

Plaintiff,
v.

ORDER

RUSSELL D. PETERSON, an individual;
RIVERSIDE TECHNOLOGIES, INC., a
Nebraska corporation,
Defendants.

Melissa Muro LaMere, William Z. Pentelovitch, and Sarah A. Horstmann,
MASLON LLP, for plaintiff.
Susan E. Tegt and James M. Susag, LARKIN HOFFMAN DALY & LINDGREN
LTD., for defendants.
Plaintiff Works Computing, Inc. (“WCI”) brings this action against defendants
Russell Peterson (a former employee) and Riverside Technologies, Inc. (“Riverside”)
(Peterson’s new employer). WCI alleges that Peterson breached the employment
agreement that he signed when he accepted employment with WCI and that Riverside
tortiously interfered with that agreement. WCI brought this action in state court and
sought a temporary restraining order. About an hour before the state judge was set to
preside over a hearing on WCI’s motion, defendants removed the action to this Court.

This matter is before the Court on (1) WCI’s motion to remand and for an award
of attorney’s fees; (2) WCI’s alternative motion for a temporary restraining order; and
(3) defendants’ motion to dismiss or transfer. For the reasons that follow, the Court
grants WCI’s motion to remand, denies WCI’s request for attorney’s fees, and denies the
remaining motions as moot.
To remove an action to federal court under 28 U.S.C. § 1441(a), “all defendants
who have been properly joined and served must join in or consent to the removal of the
action.” 28 U.S.C. § 1446(b)(2)(A). Peterson agreed, however, that disputes arising out
of his employment by WCI would be decided in Minnesota state court and further
waived his right to remove such disputes to federal court:
Any dispute arising out of or related to Employee’s
employment by Works Computing, or arising out of or
related to this Agreement, or any breach or alleged breach
hereof, shall be exclusively decided by a state court District
Judge sitting without a jury in the Fourth Judicial District,
Hennepin County, Minnesota.[] Employee irrevocably
waives Employee’s right, if any, to have any disputes
between Employee and Works Computing arising out of or
related to Employee’s employment or this Agreement
decided in any jurisdiction or venue other than the state
court in the Fourth Judicial District, Hennepin County,
Minnesota[], and Employee irrevocably waives the right to
remove or transfer any action commenced in the state court
in the Fourth Judicial District, Hennepin County, Minnesota,
to any other court or venue.
Compl. Ex. A § 6.3 (bolding removed).

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Peterson does not dispute that, if this provision is enforceable, removal was
improper under § 1446(b)(2)(A) because he did not validly consent. See iNet Directories,
LLC v. Developershed, Inc., 394 F.3d 1081, 1082 (8th Cir. 2005) (per curiam) (contractual
waiver of right to object to venue operated as a waiver of right to remove); Valspar Corp.
v. Sherman, 211 F. Supp. 3d 1209, 1214 15 (D. Minn. 2016) (removal was improper
because one defendant had contractually waived the right to remove). Peterson
contends, however, that the forum selection clause is unenforceable and, in any event,
that WCI waived its right to seek removal by filing a motion for a temporary restraining
order in this Court.
“Forum selection clauses are prima facie valid and are enforced unless they are
unjust or unreasonable or invalid for reasons such as fraud or overreaching.” M.B.
Rests., Inc. v. CKE Rests., Inc., 183 F.3d 750, 752 (8th Cir. 1999). Such clauses are
enforceable “unless they would actually deprive the opposing party of his fair day in
court.” Id. Peterson does not allege that the clause was secured by fraud, nor does he
contend that he is physically or financially unable to litigate in Minnesota state court.
Instead, he argues that the clause is unreasonable because he is more likely to win on
the merits if this case is tried Nebraska rather than in Minnesota. Specifically, Peterson
argues that (1) if the forum selection clause is declared invalid, Minnesota courts would
not have personal jurisdiction over him; (2) if Minnesota courts did not have personal

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jurisdiction over him, WCI would sue him in Nebraska; (3) if WCI sued him in
Nebraska, the Nebraska court would apply Nebraska choice of law rules; (4) if the
Nebraska court applied Nebraska choice of law rules, the Nebraska court would find
that Nebraska law governed his contract with WCI (even though the contract itself
provides that Minnesota law governs); and (5) if the Nebraska court found that
Nebraska law governed his contract, the Nebraska court would find invalid the
restrictive covenants that WCI seeks to enforce because they violate Nebraska public
policy. By contrast, Peterson seems to believe that, if the forum selection clause is
enforced, a Minnesota court will apply Minnesota law and find that the restrictive
covenants that WCI seeks to enforce are fully or partially valid.
Putting aside the fact that Peterson’s argument rests on a number of debatable
assumptions, the question whether a forum selection clause is “unreasonable” does not
focus on the merits of the underlying dispute. In other words, in deciding whether a
forum selection clause is valid, a court does not essentially try the merits of the case and
then reason backwards to a determination about the validity of the clause. Instead, the
issue is whether “trial in the contractual forum will be so gravely difficult and
inconvenient that [the party resisting the contractual forum] will for all practical
purposes be deprived of his day in court.” M/S Bremen v. Zapata Off Shore Co., 407 U.S.
1, 18 (1972). In the absence of such a showing, “there is no basis for concluding that it

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would be unfair, unjust, or unreasonable to hold that party to his bargain.” Id. Peterson
has made no such showing, and therefore he cannot establish that enforcement of the
forum selection clause is unreasonable.
True, “a forum selection clause may be set aside if ‘enforcement would
contravene a strong public policy of the forum in which suit is brought, whether
declared by statute or by judicial decision.’” Servewell Plumbing, LLC v. Fed. Ins. Co., 439
F.3d 786, 790 (8th Cir. 2006) (quoting M/S Bremen, 407 U.S. at 15). But Peterson is not
arguing that the forum selection clause violates a strong public policy of Minnesota, the
forum in which suit was brought. Instead, he is arguing that the restrictive covenants
violate a strong public policy of Nebraska, the state in which he lives. The Court
therefore rejects Peterson’s argument that the forum selection clause is unenforceable.
Defendants next argue that WCI waived its right to contest removal by seeking
affirmative relief—in the form of a motion for a temporary restraining order—from this
Court. The Court disagrees. Waiver is “an intentional relinquishment or abandonment
of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). WCI filed its
motion to remand one day after this case was removed and has been very clear that it
seeks a temporary restraining order only in the alternative (or pending the Court’s
decision on the remand issue). This conduct does not manifest an intent to abandon
any right to remand; to the contrary, WCI has clearly demonstrated its intent to assert

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that right. Cf. Koehnen v. Herald Fire Ins. Co., 89 F.3d 525, 528 29 (8th Cir. 1996)
(suggesting that party seeking remand could have asked to withdraw or stay his motion
seeking affirmative relief in favor of his later filed motion for remand). The Court
therefore rejects defendants’ waiver argument.
Finally, defendants point out that, as a non signatory to the employment
agreement, Riverside is not bound by the forum selection clause. That is true, but
irrelevant. The Court is not enforcing the forum selection clause against Riverside.
Instead, the Court is remanding this case because Peterson did not effectively consent to
removal and removal was therefore improper under § 1446(b)(2)(A).
WCI requests attorney’s fees under 28 U.S.C. § 1447(c), which permits a court, in
an order remanding a case, to award fees and expenses incurred as a result of the
removal. A court should award fees under § 1447(c) “only where the removing party
lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005). Although the question is close, the Court finds that
defendants did not lack an objectively reasonable basis to seek removal. The Court
therefore declines to award fees and costs.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:

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1.

Plaintiff’s motion to remand [ECF No. 7] is GRANTED IN PART and
DENIED IN PART.
a.

The motion is GRANTED insofar as it seeks remand. Pursuant to
28 U.S.C. § 1447(c), this matter is REMANDED to the Minnesota
District Court, Fourth Judicial District.

b.
2.

The motion is DENIED insofar as it seeks attorney’s fees and costs.

The parties’ remaining motions [ECF Nos. 11, 17] are DENIED AS MOOT.

Dated: March 9, 2018

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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