Wiggins v. Seeley et al

Filing 18

ORDER denying ECF Nos. 6 Defendants' Motion to Dismiss or Transfer and 13 Plaintiff's Motion to Remand to State Court. Signed by Judge Howard D. McKibben on 03/13/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MATTHEW WIGGINS,

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Plaintiff,
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vs.
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ANDREW SEELEY, RICHARD OOMS, and )
TIFFANY OOMS SEELEY,
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Defendants.
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_________________________________ )

3:16-cv-00642-HDM-WGC
ORDER

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Before the court is defendants Andrew Seeley, Richard Ooms and

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Tiffany Seeley’s motion to dismiss for improper venue or transfer.

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(ECF No. 6).

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(ECF No. 14).

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Plaintiff responded (ECF No. 12) and defendants replied

Also before the court is plaintiff’s motion to remand.

(ECF No.

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13). Defendants responded (ECF No. 16) and plaintiff replied (ECF No.

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17).

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I.

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Background
This dispute arises out of a contract entered into on May 26,

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2016.

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failed to make the full payments as agreed upon under the contract.

(ECF No. 2 at 6).

According to the complaint, defendants

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(Id. at 7).

As a result, plaintiff alleges that defendants owe him

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$79,316.39.

(Id. at 8).

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On September 22, 2016, plaintiff filed a complaint for breach of

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contract in Ninth Judicial District in and for the State of Nevada.

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(ECF No. 2 at 6-9).

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action to this court pursuant to 28 U.S.C. § 1332(a).

On November 7, 2016, defendants removed the
(ECF No. 2).

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Defendants move to dismiss for improper venue pursuant to Federal

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Rule of Civil Procedure 12(b)(3) or to transfer the case to the

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Southern District of California pursuant to 28 U.S.C. § 1404.

(ECF

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No. 6).

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Nevada in accordance with the forum selection clause set forth in the

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Private Investment Agreement. (ECF No. 13). The court addresses each

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motion in turn.

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II.

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Plaintiff moves to remand the action to Douglas County,

Motion to Dismiss for Improper Venue
Defendants move the court to dismiss the action pursuant to

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Federal Rule of Civil Procedure 12(b)(3) for improper venue.

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of removed actions is governed by 28 U.S.C. § 1441(a).

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v. Cowles Magazines, Inc., 345 U.S. 663, 665-66 (1953) (holding that

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28 U.S.C. § 1391 has no application in removed actions).

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1441(a) provides that, when an action is removed from state court,

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venue is automatically proper in the federal district court where the

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state action was pending.

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official federal judicial district in the state of Nevada. Therefore,

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venue is proper in this court.

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improper venue is denied.

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III. Motion to Transfer

28 U.S.C. § 1441(a).

Venue

See Polizzi

Section

There is only one

Defendants’ motion to dismiss for

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Defendants also request the court transfer the action to the

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Southern District of California for the convenience of the parties and
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witnesses.

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parties and witnesses, in the interest of justice, a district court

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may transfer any civil action to any other district or division where

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it might have been brought.”

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Section 1404 establishes that “[f]or the convenience of

28 U.S.C. § 1404(a).

In determining whether transfer is appropriate in a particular

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case, the court is required to weigh multiple factors.

Jones v. GNC

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Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000).

The court may

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consider the following factors:

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(1) the location where the relevant agreements were
negotiated and executed, (2) the state that is most
familiar with the governing law, (3) the plaintiff’s
choice of forum, (4) the respective parties’ contacts
with the forum, (5) the contacts relating to the
plaintiff’s cause of action in the chosen forum, (6) the
differences in the costs of litigation in the two forums,
(7) the availability of compulsory process to compel
attendance of unwilling non-party witnesses, and (8) the
ease of access to sources of proof.

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Id. at 498–99.

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“significant factor” in the court’s § 1404(a) analysis.

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“defendant must make a strong showing of inconvenience to warrant

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upsetting the plaintiff’s choice of forum.”

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Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (citation

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omitted).

The presence of a forum selection clause is also a
Id.

A

Decker Coal Co. v.

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Defendants request the court to transfer venue of this case to

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the Southern District of California. As an initial matter, defendants

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assert that the matter may be properly brought in the Southern

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District of California as all defendants are California residents and

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live in San Diego. See 28 U.S.C. 1391(b)(1). In support of transfer,

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defendants state that, other than plaintiff, all parties encumbered

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by the Private Investment Agreement reside in California, travel to

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Nevada would be a hardship on defendants, defendants may call some
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witnesses who are residents in California, any documents that relate

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to the operations of Getaway San Diego will be located in California,

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and

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Defendants further assert that “[t]here are financial institutions and

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witnesses in California that may need to be subpoenaed and may not be

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willing to testify.”

that

nearly

all

operative

facts

occurred

in

California.

(ECF No. 6 at 9).

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Defendants provide no evidence or affidavit to support the

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contention regarding financial institutions or witnesses in California

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that may not be willing to testify.

Defendants also fail to explain

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why travel to Nevada would be more expensive for them than it would

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be for plaintiff to travel to California.

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fail to address the significance of the forum selection clause in the

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Private Investment Agreement.

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provides that “[t]his agreement will be governed and construed in

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accordance with the laws of Douglas County, Nevada.

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Douglas County, Nevada.”

Additionally, defendants

The Private Investment Agreement

Jurisdiction is

(ECF No. 6 at 12).

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A valid forum selection clause “represents the parties’ agreement

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as to the most proper forum.” Atl. Marine Const. Co., Inc. v. U.S.

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Dist. Court for W. Dist. of Texas, 134 S.Ct. 568, 581 (2013) (quoting

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

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plaintiff followed the terms of the forum selection clause under the

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Private Investment Agreement by filing suit in Douglas County, Nevada.

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As discussed below, defendants do not dispute the validity of the

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forum selection clause.

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governing law and plaintiff is a Nevada resident.

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weighing the factors for and against transfer, the court finds that

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transfer would not promote “the interest of justice.”

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motion to transfer is therefore denied.

Here,

Moreover, Nevada is most familiar with the

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Accordingly,

Defendant’s

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IV.

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Motion to Remand
Plaintiff

seeks

to

remand

this

action

based

upon

a

forum

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selection clause in the contract which states, “Jurisdiction is

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Douglas County, Nevada.”

(ECF No. 12-1 at 3).

Defendants do not

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dispute

the

clause.

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defendants argue that the forum selection clause is permissive, not

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mandatory, and that removal is not barred.

the

validity

of

forum

selection

Rather,

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A forum selection clause will be enforced only where venue is

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specified with mandatory language. Docksider, Ltd. v. Sea Technology,

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Ltd., 875 F.2d 762, 764 (9th Cir. 1989).

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forum selection clause is permissive or mandatory is a question of

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contract interpretation.

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Pittsburgh-Des Moines, Inc., 69 F.3d 1034, 1036 (9th Cir. 1995).

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The question of whether a

N. California Dist. Council of Laborers v.

“To be mandatory, a clause must contain language that clearly

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designates a forum as the exclusive one.”

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the Ninth Circuit held that the clause containing the language that

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“venue of any action brought hereunder shall be deemed to be in

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Glouscester County, Virginia” is mandatory.

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764.

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Theatres, Inc., 741 F.2d 273, 275 (9th Cir. 1984) the Ninth Circuit

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held the clause “this Agreement shall be litigated only in the

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Superior Court for Los Angeles, California (and in not other) . . .”

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is mandatory.

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a particular court or state has jurisdiction, but says nothing about

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it being exclusive jurisdiction, is permissive and generally will not

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be enforced.

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1037 (holding that the language ‘shall be enforceable’ is permissive);

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Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir.

Similarly,

in

Pellport

Id. at 1037.

Investors,

For example,

Docksider, 875 F.2d at
Inc.

v.

Budco

Quality

On the other hand, a forum selection clause providing

See N. California Dist. Council of Laborers, 69 F.3d at

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1987)(holding the language “shall have jurisdiction over the parties

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in any action” is permissive).

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The forum selection clause in the parties’ Private Investment

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Agreement provides that “Jurisdiction is Douglas County, Nevada.” The

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clause specifies that jurisdiction will be in Douglas County, but it

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fails to contain any language about Douglas County having exclusive

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jurisdiction. Hence, the forum selection clause is permissive and the

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action was properly removed to this court.

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motion to remand is denied.

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V.

Accordingly, plaintiff’s

Conclusion
IT IS ORDERED that defendants’ motion to dismiss or transfer (ECF

No. 6) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to remand (ECF No.
13) is DENIED.

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IT IS SO ORDERED.

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DATED: This 13th day of March, 2017.

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____________________________
UNITED STATES DISTRICT JUDGE

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