Streeter v. Adaptasoft, Inc
Filing
28
ORDER denying 7 Motion to Dismiss; denying as moot 11 Motion for Judgment on the Pleadings; denying 20 Motion to File Surreply. Signed by Judge Algenon L. Marbley on 8/23/2018. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANGELLA STREETER,
:
:
:
:
:
:
:
:
:
Plaintiff,
v.
ADAPTASOFT, INC.,
Defendant.
Case No. 2:17-cv-01125
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kimberly Jolson
OPINION & ORDER
This matter is before the Court on Defendant Adaptasoft, Inc.’s Motion to Dismiss for
Forum Non Conveniens, or, in the Alternative, Motion to Transfer Venue Pursuant to 28 U.S.C. §
1404(a) (“Motion to Dismiss”). (ECF No. 7). Defendant requests that Plaintiff’s Complaint be
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(3) with prejudice, arguing that venue
is improper because an employment agreement between the parties contains a forum selection
clause designating Indiana as the forum in which disputes must be brought. (ECF No. 7).
Alternatively, Defendant argues that this case should be transferred to the United States District
Court for the Northern District of Indiana if no forum selection clause is operative.
Also before the Court are (1) Defendant Adaptasoft, Inc.’s Motion for Judgment on
Defendant’s Motion to Dismiss for Forum Non Conveniens, or, in the Alternative, Motion to
Transfer Venue Pursuant to 28 U.S.C. 1404(a) (“Motion for Judgment”) (ECF No. 11), and (2)
Plaintiff’s Motion to File Surreply in Response to Defendant’s Motion to Dismiss for Forum Non
Conveniens, or, in the Alternative, Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a)
(“Motion to File Surreply”) (ECF No. 20).
For the reasons set forth herein, Defendant’s Motion for Judgment is DENIED AS
MOOT; Plaintiff’s Motion to File Surreply is DENIED; and Defendant’s Motion to Dismiss is
DENIED.
I.
BACKGROUND
A. Factual Background
Defendant Adaptasoft, Inc. (“Adaptasoft”) was1 an Indiana corporation headquartered in
Monon, White County, Indiana. (ECF No. 7 at 2). Adaptasoft provided various services, including
payroll software, consulting, business startup, and marketing services. (ECF No. 7 at 2). Plaintiff
Angella Streeter worked remotely for Adaptasoft from November 2, 2015 through March 15, 2017,
while she lived in Ohio. (ECF No. 1 at 2). According to Adaptasoft’s Motion to Dismiss, Ms.
Streeter was the only Adaptasoft employee to work from or live in Ohio. (ECF No. 3). Adaptasoft
had no corporate offices outside of Monon; was not incorporated in Ohio; owned no subsidiaries
incorporated in Ohio; owned no property in Ohio; held no bank accounts in Ohio; and had no
business offices in Ohio. (ECF No. 7 at 3). Moreover, its officers and directors did not reside in
Ohio nor were they domiciled there, and Adaptasoft did not conduct board or shareholder meetings
in Ohio. (ECF No. 7 at 3–4).
Ms. Streeter was hired to work at Adaptasoft by the company’s President and Chief
Executive Officer, Constance Martin.
Ms. Streeter’s title, according to her employment
agreement, was Client Care Specialist/Admin. Support, but she was at times referred to as a
Customer Relations Manager. (ECF No. 1 at 1). Her primary duties included customer service,
1
Adaptasoft, according to its Motion to Dismiss, “formally ceased its business operations as of October 20, 2017
and all assets of the company are now the property of CyberPay.” (ECF No. 7 at 3). However, according to the
Parties’ factual allegations, at all relevant times Ms. Streeter was employed by Adaptasoft itself, and Constance
Martin, who hired Ms. Streeter, remained the President and CEO. At this stage, neither party has raised any factual
or legal issues surrounding Adaptasoft’s transition to CyberPay. Throughout this Opinion, Adaptasoft and
CyberPay are referred to somewhat interchangeably.
2
answering calls and emails, making travel arrangements for staff and visitors, ordering business
cards, mailing holiday cards to clients, and creating PowerPoint slides as directed. (ECF No. 1 at
3).
Additionally, she provided administrative support to the technical staff and updated
information on the company’s website and social media accounts. (ECF No. 1 at 3). Ms. Streeter
did not have any responsibility for hiring or terminating other Adaptasoft employees, she did not
have access to personnel records, she did not customarily and regularly direct or control the work
of two or more other full-time employees, and she did not create or develop products. (ECF No.
1 at 3–6).
Ms. Streeter alleges that she worked approximately ten to twenty overtime hours each week
on average but was paid an annual salary that did not compensate her for such overtime hours.
(ECF No. 1 at 7). She contends that Adaptasoft “knew or had reason to know” that she worked
overtime, deprived her of compensation for her overtime hours, and “intentionally misclassified
[her] as an exempt executive and/or administrative employee in order to not pay her overtime
premiums that she was entitled to receive.” (ECF No. 1 at 7–8).
B. Procedural History
Ms. Streeter initiated this action against Adaptasoft on December 21, 2017, alleging
violations of the Fair Labor Standards Act (“FLSA”) (Count 1) and the Ohio Minimum Fair Wage
Standards Act (“OMFWSA”) (Count 2).
(ECF No. 1).
The Complaint seeks monetary,
declaratory, and injunctive relief from Adaptasoft for the alleged violations. Ms. Streeter contends
that she was misclassified as an overtime-exempt executive or administrative employee and that
she regularly worked in excess of forty hours per week but was not paid overtime wages. (ECF
No. 1).
3
After waiving service, (ECF No. 2), Adaptasoft filed its Motion to Dismiss. (ECF No. 7).
According to Adaptasoft, an Employment Agreement between Ms. Streeter and Adaptasoft
contains a “forum selection clause that mandates that all disputes related to Plaintiff’s employment
are to be brought in Indiana.” (ECF No. 7 at 1). On the basis of the forum selection clause,
Adaptasoft seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(3). (ECF No. 7 at
1). In the alternative, Adaptasoft asks that the Court transfer this case to the United States District
Court for the Northern District of Indiana pursuant to 28 U.S.C. § 1404(a). (ECF No. 7 at 1).
When Ms. Streeter failed to respond timely to the Motion to Dismiss, Adaptasoft filed its
Motion for Judgment. (ECF No. 11). Upon Ms. Streeter’s motion, however, the Magistrate Judge
granted Ms. Streeter an extension of time to file her response to the Motion to Dismiss. (ECF No.
15). Ms. Streeter then timely filed her Memorandum in Opposition to the Motion to Dismiss.
(ECF No. 16). Subsequently, Adaptasoft filed its Reply to Ms. Streeter’s response. (ECF No. 19).
Ms. Streeter then filed her Motion to File Surreply. (ECF No. 20). Adaptasoft’s Motion to Dismiss
and Motion for Judgment, as well as Ms. Streeter’s Motion to File Surreply, are ripe for review.
II.
LAW AND ANALYSIS
A. Adaptasoft’s Motion for Judgment
Adaptasoft requests that the Court enter judgment on its Motion to Dismiss. (ECF No. 11).
Adaptasoft filed its Motion to Dismiss on February 26, 2018. (ECF No. 11). Ms. Streeter’s
response thereto was due March 19, 2018. (ECF No. 15). Adaptasoft then filed the Motion for
Judgment on March 21, 2018, requesting that the Court rule on the Motion to Dismiss due to Ms.
Streeter’s failure to respond. (ECF No. 11). Although Ms. Streeter did not respond, the Magistrate
Judge granted her until March 27, 2018 to do so. (ECF No. 15). Ms. Streeter then timely filed a
memorandum in opposition to the Motion to Dismiss. (ECF No. 16). Subsequently, Adaptasoft
4
filed a reply to Ms. Streeter’s memorandum in opposition, (ECF No. 19), and Ms. Streeter later
filed her Motion to File Surreply. (ECF No. 20). The Motion to Dismiss and subsequent
memoranda are now before the Court for review. Given this procedural posture, the Motion for
Judgment is DENIED AS MOOT.
B. Ms. Streeter’s Motion to File Surreply
If Ms. Streeter were granted leave to file a surreply, the contents of the surreply would be
before the Court for consideration when ruling on Adaptasoft’s Motion to Dismiss. Thus, as a
preliminary matter, the Court must decide whether to grant leave. The Court’s Local Civil Rules
permit the filing of a supporting memorandum, a memorandum in opposition, and a reply
memorandum. S.D. Ohio Civ. R. 7.2(a)(2); see also Power Mktg. Direct, Inc. v. Moy, No. 2:08–
cv–826, 2008 WL 4849289, at *1 (S.D. Ohio Nov. 6, 2008). If a party intends to file additional
memoranda, such as a surreply, it cannot do so “except upon leave of court for good cause shown.”
S.D. Ohio Civ. R. 7.2(a)(2). While the Court’s Local Civil Rules do not define good cause, “this
Court has consistently held that in order for a party to be given permission to file a sur-reply, the
reply brief must raise new grounds that were not presented as part of the movant’s initial motion.”
Comtime Holdings, LLC v. Booth Creek Mgmt. Corp., No. 2:07–cv–1190, 2010 WL 4117552, at
*4 (S.D. Ohio Oct. 19, 2010) (citations omitted). The Local Civil Rules also provide that
“[e]vidence used to support a reply memorandum shall be limited to that needed to rebut the
positions argued in memoranda in opposition.” S.D. Ohio Civ. R. 7.2(d).
Ms. Streeter seeks leave to file a surreply in order to address purportedly new evidence and
arguments submitted by Adaptasoft in its Reply. (ECF No. 20). First, Ms. Streeter contends that
Adaptasoft presented new evidence in the form of an affidavit of Ms. Martin, as well as an exhibit
showing text messages between Ms. Streeter and Ms. Martin concerning Ms. Streeter’s hire. Id.
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Second, Ms. Streeter contends that Adaptasoft made a new argument, on the basis of such
evidence, that it had allowed Ms. Streeter to work in Ohio upon her request and for her convenience
rather than as part of Adaptasoft’s effort to expand its business operations into Ohio.2 Id. Third,
Ms. Streeter contends that new arguments were made concerning her level of interaction with Ohio
clients of Adaptasoft.3 Id. Finally, Ms. Streeter contends that Adaptasoft introduced a new
argument as to the burden on Ms. Streeter of litigating this matter in Indiana compared to Ohio.
Id. Adaptasoft filed no response to Ms. Streeter’s motion for leave.
The Court finds that Ms. Streeter has failed to show good cause for leave to file a surreply.
The first three issues the surreply seeks leave to address are not properly considered new
arguments. Ms. Streeter first raised the issue of why she worked from Ohio rather than Indiana
when she argued that Adaptasoft determined she would work there as part of its efforts to avail
itself of the benefits of doing business in that state. See (ECF No. 16). The issue of whether Ms.
Streeter was allowed to work in Ohio at her request and for her convenience, rather than as part of
Adaptasoft’s effort to expand its business operations into Ohio, was raised in Adaptasoft’s Motion
to Dismiss, and then addressed in Ms. Streeter’s Memorandum in Response. (ECF No. 7 Ex. B at
¶ 24); (ECF No. 16 at 6) (“Plaintiff’s litigation is a result of injuries that ‘arise out of or relate to’
work that Plaintiff performed at the direction of Defendant, who determined that Plaintiff would
work remotely out of her home in Ohio.”) (italics added). Similarly, no new arguments were made
concerning her level of interaction with Ohio clients of Adaptasoft, as the issue was first raised in
Adaptasoft’s Motion to Dismiss. (ECF No. 7 Ex. B at ¶ 24).
2
Ms. Streeter did not specifically make this argument in her memorandum in support of her Motion to File Surreply,
but rather in the proposed surreply attached to said Motion. However, the Court considers it here to evaluate
whether there is good cause to grant leave.
3
Once again, Ms. Streeter made this argument in the proposed surreply, but the Court considers it here to evaluate
whether there is good cause to grant leave.
6
Finally, Ms. Streeter’s assertion that Adaptasoft presented a new argument “that it would
not cause any burden on the Plaintiff to litigate claims in a different forum and contrasted this with
its own burden of litigating claims in Ohio[,]” (ECF No 20), does not show good cause for leave.
Adaptasoft did not argue that Ms. Streeter would not be burdened by litigating her claims in
Indiana, nor did it present any argument as to the relative burden Ms. Streeter would face if she
were to litigate her claims in Indiana instead of Ohio. Instead, Adaptasoft argued that Ms. Streeter
failed to give any reason why a transfer of this case to Indiana would burden her. (ECF No. 19 at
5). Thus, Adaptasoft did not present a “new” argument. Even if Adapasoft is attempting to imply
that Ms. Streeter would suffer no burden from such a transfer, the Court is confident that it can
weigh the parties’ arguments on this issue without drawing any improper conclusions. For the
foregoing reasons, Ms. Streeter’s Motion to File Surreply is DENIED.
C. Adaptasoft’s Motion to Dismiss
In its Motion to Dismiss, Adaptasoft requests that Ms. Streeter’s Complaint be dismissed
with prejudice pursuant to Rule 12(b)(3) because the Employment Agreement contains a forum
selection clause designating Indiana as the forum in which disputes are to be brought. (ECF No.
7). Alternatively, Adaptasoft argues for a transfer of venue to the United States District Court for
the Northern District of Indiana pursuant to 28 U.S.C. § 1404(a). Ms. Streeter counters that the
Employment Agreement does not contain a forum selection clause. Thus, dismissal pursuant to
Rule 12(b)(3) is inappropriate on that basis. As to Adaptasoft’s alternative argument, Ms. Streeter
argues that a change of venue pursuant to 28 U.S.C. § 1404(a) is improper.
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1. Forum Selection Clause
Adaptasoft’s argument for dismissal pursuant to Rule 12(b)(3) is predicated on the
existence of a valid and enforceable forum selection clause. The Court now considers whether
such a clause exists and whether dismissal pursuant to Rule 12(b)(3) is appropriate.
Federal Rule of Civil Procedure 12(b)(3) provides that a defendant may move to dismiss
for improper venue. Generally, “[a] forum selection clause should be upheld absent a strong
showing that it should be set aside.” Wong v. PartyGaming Ltd., 589 F.3d 821 (6th Cir. 2009)
(citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991)). The Supreme Court of the
United States has held, however, that a forum selection clause “may not be enforced by a motion
to dismiss under . . . Rule 12(b)(3) of the Federal Rules of Civil Procedure. Instead, a forumselection clause may be enforced by a motion to transfer under § 1404(a)[.]” Atl. Marine Constr.
Co., Inc. v. U.S. Dist. Court for Western Dist. of Texas, 571 U.S. 49, 52 (2013). This is because
Rule 12(b)(3) allows for “dismissal only when venue is ‘wrong’ or ‘improper.’ Whether venue is
‘wrong’ or ‘improper’ depends exclusively on whether the court in which the case was brought
satisfies the requirements of federal venue laws, and those provisions say nothing about a forumselection clause.” Id. at 55. The Court notes that Adaptasoft seeks to enforce the purported forum
selection clause through dismissal for improper venue under Rule 12(b)(3). (ECF No. 7) (“Now
comes Defendant, Adaptasoft . . . and respectfully move[s] to dismiss Plaintiff’s Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(3)[.]”). Adaptasoft makes no argument that
venue is wrong or improper on other grounds. To grant Adaptasoft’s motion pursuant to Rule
12(b)(3) would be contrary to law.
Even assuming Adaptasoft had properly sought enforcement, the Court agrees with Ms.
Streeter that no enforceable forum selection clause exists in this case. Generally, the Court must
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look to three factors when evaluating the enforceability of a forum selection clause: “(1) whether
the clause was obtained by fraud, duress, or other unconscionable means; (2) whether the
designated forum would ineffectively or unfairly handle the suit; and (3) whether the designated
forum would be so seriously inconvenient such that requiring the plaintiff to bring suit there would
be unjust.” Wong v. PartyGaming Ltd., 589 F.3d 821 (6th Cir. 2009) (citing Sec. Watch Inc. v.
Sentinel Sys., Inc., 176 F.3d 369, 375 (6th Cir. 1999)).
The language purportedly constituting a forum selection clause is contained in the
Employment Agreement signed November 2, 2015. (ECF No. 7 Ex. C, at ¶ 18). Paragraph
Eighteen of the Agreement states in full:
18. Governing Law.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Indiana without regard to principles of
conflict of laws.
(ECF No. 7 Ex. C). In its Motion to Dismiss, Adaptasoft largely takes for granted that Paragraph
Eighteen constitutes a forum selection clause. Aside from conclusory assertions to that effect, the
only argument Adaptasoft presents on that issue is that Paragraph Eighteen is analogous to the
language found in the case of Villanueva v. Barcroft, 822 F. Supp. 2d 726 (N.D. Ohio 2011). See
(ECF No. 7 at 8). In Villanueva, the court examined the following provision and determined that
it unambiguously contained both a forum selection clause and a choice of law provision:
Any and all legal issues will be brought through the state of Michigan and will
follow the laws and guidelines of the state of Michigan.
Villanueva, 822 F. Supp. 2d at 734–35. Adaptasoft argues that just as the phrase “[a]ny and all
legal issues will be brought through the state of Michigan” was a forum selection clause in
Villanueva, “[s]o, too, in our Agreement, the clause provides clear direction on the choice of forum
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by stating that the Agreement shall be enforced in Indiana.” (ECF No. 7 at 8) (emphasis in
original).
In her Memorandum in Opposition, Ms. Streeter argues that Paragraph Eighteen is not a
forum selection clause. (ECF No. 16 at 1). Rather, Ms. Streeter contends, it is a choice of law
provision. (ECF No. 16 at 1). In support of her position, Ms. Streeter points to the heading of
Paragraph Eighteen, “Governing Law,” as an indicator that the language is directed at choice of
law. (ECF No. 16 at 3). Ms. Streeter also notes that the language of Paragraph Eighteen itself,
including “the very words that the Defendant noted with emphasis—‘shall be governed by and
construed and enforced’ in the ‘State of Indiana’[,]” suggests that it is not a forum selection clause.
(ECF No. 16 at 3) (emphasis omitted). Moreover, Ms. Streeter highlights Paragraphs Ten and
Twelve of the Agreement, which each select a specific forum in Indiana for arbitration and
mediation, respectively, to demonstrate that Adaptasoft was capable of drafting a forum selection
clause but did not include such a clause in Paragraph Eighteen. (ECF No. 16 at 3–4); see also
(ECF No. 7 Ex. C at 4–5). Finally, Ms. Streeter asserts that Paragraph Eighteen includes no similar
language to that which the Villanueva court determined was a forum selection clause. (ECF No.
16 at 5). In that regard, Ms. Streeter states that even if the Court believes Paragraph Eighteen is
ambiguous, such ambiguity should be construed against the drafter, Adaptasoft. (ECF No. 16 at
5).
A plain reading of Paragraph Eighteen reveals that Ms. Streeter correctly interpreted the
provision—it is not a forum selection clause. To interpret it as Adaptasoft does would be to stretch
beyond credibility the clear meaning of its unambiguous language. Essentially, the provision states
that the Agreement will be controlled by the laws of Indiana. It says nothing about where any
disputes concerning the Agreement must be brought. It does not indicate that any issues will be
10
brought “through” the state of Indiana, as in Villanueva, nor does it even imply that the Agreement
will be “enforced in” Indiana. Moreover, Adaptasoft presented no compelling reason why the
Court should read Paragraph Eighteen in conjunction with any other portion of the Agreement in
order to transform its plain, unambiguous language into a forum selection clause.
The Court finds that the Employment Agreement does not contain a valid and enforceable
forum selection clause.
Adaptasoft has failed to demonstrate that dismissal is warranted.
Accordingly, the Motion to Dismiss is DENIED to the extent that it seeks dismissal of this action
on the basis of a forum selection clause.
2. Transfer of Venue Pursuant to 28 U.S.C. § 1404(a)
Adaptasoft requests, in the alternative, a transfer of venue to the United States District
Court for the Northern District of Indiana. (ECF No. 7). Adaptasoft seeks a change of venue
pursuant to 28 U.S.C. § 1404(a), which provides that “[f]or the convenience of the parties and
witnesses, and in the interest of justice, a district court may transfer any civil action to any other
district court or division where it might have been brought[.]” The application of § 1404(a) is
limited “to the transfer of actions commenced in a district court where both personal jurisdiction
and venue are proper.” Martin v. Stokes, 623 F.2d 469, 474 (6th Cir. 1980). Thus, “[e]ven if venue
is proper, the district court still may transfer the case to a more convenient forum pursuant to the
provisions of 28 U.S.C. § 1404(a)[.]” Bunting ex rel. Gray v. Gray, 2 F. App’x 443, 448 (6th Cir.
2001). The statute requires “that the transfer would serve the convenience of the parties and
witnesses, that the transfer would serve the interest of justice, and that the transferred action could
have been brought in the transferee court.” Bunting ex rel. Gray v. Gray, 2 Fed. App’x 443, 448
(6th Cir. 2001) (citations omitted). Whether to grant a change of venue “under § 1404(a) lies
11
within the discretion of the district court.” Bunting ex rel. Gray v. Gray, 2 Fed. App’x 443, 448
(6th Cir. 2001) (citing Norwood v. Kirkpatrick, 349 U.S. 29, 31–33 (1955)).
Typically, in a case not involving a forum selection clause, “a district court considering a
§ 1404(a) motion . . . must evaluate both the convenience of the parties and various public-interest
considerations.” Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for Western Dist. of Texas, 571
U.S. 49, 62 (2013) (footnote omitted). This Court has previously stated that “‘[a] plaintiff’s choice
of forum is given great weight[,]’” and a defendant “‘must make a strong showing of
inconvenience to warrant upsetting the Plaintiff’s choice of forum.’” Shanehchian v. Macy's, Inc.,
251 F.R.D. 287, 289 (S.D. Ohio Apr. 16, 2008) (citing Hobson v. Princeton–New York Investors,
Inc., 799 F. Supp. 802, 804, 805 (S.D. Ohio 1992)). Venue should not be transferred unless the
factors of the convenience of the parties and potential witnesses, and the interests of justice, “weigh
heavily in favor of the defendant.” Id. at 289 (citing West American Ins. v. Potts, 908 F.2d 974,
1990 WL 104034 at *2 (6th Cir.1990)). The threshold question is whether the action “might have
been brought” in the transferee court, and, if such is the case, the issue becomes whether transfer
is justified under the balance of the § 1404(a) factors. Id. (citations omitted).
As to the threshold consideration, § 1404(a) provides that, “[a]n action might have been
brought in the transferee court if: (1) the transferee court has jurisdiction over the subject matter
of the action; (2) venue is proper in the transferee court; and (3) the defendants are amenable to
process issuing out of the transferee court.” Pacific Life Ins. Co. v. U.S. Bank Nat’l Ass’n, No.
1:15–cv–416, 2016 WL 223683, at *3 (S.D. Ohio Jan. 19, 2016) (citing Sky Tech. Partners, LLC
v. Midwest Research Inst., 125 F. Supp. 2d 286, 291 (S.D. Ohio Dec. 21, 2000)). Here, the parties
have expressed no disagreement over whether the threshold consideration is met, and the Court
finds that it is. The transferee court would have federal question jurisdiction over Ms. Streeter’s
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FLSA claim (Count 1). See 28 U.S.C. 1331. Additionally, it would have supplemental jurisdiction
over Ms. Streeter’s OMFWSA claim (Count 2), because it is so related that it forms part of the
same case or controversy. See 28 U.S.C. 1367. Adaptasoft not only does not dispute personal
jurisdiction in the transferee court, it clearly stated that it is subject to jurisdiction there. See (ECF
No. 7 at 10). Indeed, Adaptasoft is a corporation headquartered in White County, Indiana, which
is situated in Indiana’s northern judicial district. Adaptasoft is amenable to process issuing out of
that court. Venue is therefore also proper under 28 U.S.C. §§ 1391(b)(1) and (c)(2). Thus, this
action might have been brought in the United States District Court for the Northern District of
Indiana.
Proceeding to the second stage of the § 1404(a) analysis, the Court now must examine
“whether, on balance, the considerations of the parties and the interests of justice favor transfer.”
Pacific Life Ins. Co. v. U.S. Bank Nat’l Ass’n, No. 1:15–cv–416, 2016 WL 223683, at *2 (S.D.
Ohio Jan. 19, 2016) (citing Kay v. Nat’l City Mtg. Co., 494 F. Supp. 2d 845, 849–50 (S.D. Ohio
July 9, 2004)). A motion to transfer “calls on the district court to weigh in the balance a number
of case-specific factors.” Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988). At this second
stage, “[t]he balance of convenience, considering all the relevant factors, should strongly favor
transfer before such will be granted.” Pacific Life Ins. Co., 2016 WL 223683, at *2 (citing Kay,
494 F. Supp. 2d at 850). The Sixth Circuit concluded that “in ruling on a motion to transfer under
§ 1404(a), a district court should consider the private interests of the parties, including their
convenience and the convenience of potential witnesses, as well as other public-interest concerns,
such as systemic integrity and fairness, which come under the rubric of ‘interests of justice.’”
Moses v. Bus. Card Exp., Inc., 929 F.2d 1131, 1137 (6th Cir. 1991) (citing Stewart Org. v. Ricoh
Corp., 487 U.S. 22, 30 (1988)). The party moving for transfer “bears ‘the burden of establishing
13
the need for a transfer of venue.’” DRFP, LLC v. Republica Bolivariana de Venezuela, 945 F.
Supp. 2d 890, 903 (S.D. Ohio May 14, 2013) (quoting Dayton Superior Court v. Yan, 288 F.R.D.
151, 165 (S.D. Ohio Nov. 29, 2012)). A change of venue is improper when it “serves merely to
shift the inconvenience from the plaintiff to the defendant.” Lassak v. American Defense Systems,
Inc., No 2:06–cv–1021, 2007 WL 1469408, at *2 (S.D. Ohio May 18, 2007) (citing Raymond E.
Danto Associates, Inc. v. Arthur D. Little, Inc., 316 F. Supp. 1350 (E.D. Mich. 1970)).
Beginning with private interests, Adaptasoft argues that the convenience of the witnesses,
the ease of access to evidence, and the convenience to the parties weighs in favor of transfer to
Indiana. (ECF No. 7). First, considering the convenience of the witnesses, the Court notes that it
is an important factor, but many courts have recognized “the rule that, upon a motion to change
venue the convenience of witnesses who are a party’s employees will not ordinarily be considered,
or at least, that the convenience of such employees will not generally be given the same
consideration as is given to other witnesses.” Zimmer Enterprises, Inc. v. Atlandia Imports, Inc.,
478 F. Supp. 2d 983, 991 (S.D. Ohio Mar. 13, 2007) (citing 74 A.L.R.2d 16, § 16(b) (2005)).
Adaptasoft identified twenty-eight potential witnesses, including Ms. Streeter. (ECF No.
7 Ex. B). Of those, only seventeen are located in Indiana, and the remaining eleven potential
witnesses are located outside of Indiana or, in the case of Ms. Streeter, in Ohio. Adaptasoft
presented no argument as to why Indiana would be more a more convenient forum for those eleven
witnesses; Indiana and Ohio appear to be equally convenient for ten of them, and Ohio is more
convenient for Ms. Streeter. Of the seventeen who are located in Indiana, ten of the potential
witnesses are current employees of Adaptasoft. The convenience of those ten current employees
is given less consideration. See Zimmer Enterprises, Inc., 478 F. Supp. 2d at 991. There are thus
only seven remaining witnesses located in Indiana—former Adaptasoft employees—for whom
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Indiana appears to be the more convenient forum. The convenience of the witnesses does therefore
weigh slightly in favor of transfer, though not as strongly as Adaptasoft would have this Court
believe. Indeed, Adaptasoft’s reasoning could easily be extended to argue that in every case where
a company is a defendant, venue should be in the city where the defendant is located, because the
majority of defendant’s witnesses live there. This Court is unwilling to so hold and finds that this
factor determinative.
As to the convenience to the parties themselves, Adaptasoft argues that the absence of key
employees from CyberPay, many of whom Adaptasoft identified as potential witnesses in this
case, “will have a catastrophic effect on CyberPay’s ability to service its clients.” (ECF No. 7 at
13). Ms. Streeter contests that “venue in the forum state would be unduly burdensome on
[Adaptasoft’s] business because of the number of witnesses Defendant plans to use.” (ECF No.
16 at 7). Ms. Streeter argues that, considering modern technology and the “improbable likelihood”
that all of Adaptasoft’s potential witnesses would be required to travel to Ohio at the same time,
the impact on Adaptasoft’s business is apparently minimal. (ECF No. 16 at 7–8).
The Court recognizes that Adaptasoft may suffer some inconvenience if its current
employees must appear in Ohio. The Court is not persuaded, however, that the inconvenience to
Adaptasoft outweighs the inconvenience to Ms. Streeter if she were required to litigate her claims
in Indiana. The Court is not convinced that Adaptasoft will suffer “catastrophic” effects resulting
from the absence of CyberPay’s employees if this case were litigated in Ohio. (ECF No. 7 at 13).
Even if CyberPay’s clients require immediate assistance at some point in time when witnesses
were required to be in Ohio, Adaptasoft has given no reason for the Court to believe that litigating
here would mean that not a single Adaptasoft employee was available to aid its clients, or that
witnesses in this case could not help their clients remotely while in Ohio. Indeed, Adaptasoft’s
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own employment agreements notes “with the use of computers and the internet, the physical
location of a programmer . . . is not relevant.” (ECF No. 16-1 at ¶ 7(b)). Adaptasoft asserts that
the need for immediate assistance by CyberPay employees has occurred in the past, but it provides
no facts as to how recently or frequently that happens, the likelihood that it would happen again,
the maximum number of employees who could be away from CyberPay’s offices at any given time
or for how long if happens again, or any other details that would suggest the inconvenience to
CyberPay would be significantly greater than that to Ms. Streeter herself, depending on the forum.
Ms. Streeter would almost certainly be inconvenienced if required to travel to Indiana for litigation.
Moreover, given that a change of venue is improper when it “serves merely to shift the
inconvenience from the plaintiff to the defendant[,]” Lassak v. American Defense Systems, Inc.,
No 2:06–cv–1021, 2007 WL 1469408, at *2 (S.D. Ohio May 18, 2007) (citing Raymond E. Danto
Associates, Inc. v. Arthur D. Little, Inc., 316 F. Supp. 1350 (E.D. Mich. 1970)), the Court will not
weigh this factor in favor of transfer.
As to the relative ease of access to evidence, the Court finds this factor inconclusive.
Adaptasoft argues many of the documents relevant to this case, including Ms. Streeter’s
employment files, are “located at the Company headquarters for CyberPay” in Indiana. (ECF No.
7 at 13). Ms. Streeter did not contest that such documents are located in Indiana. See (ECF No.
16). However, the extent of evidence located there is unclear, as is whether the evidence is in
physical, hard-copy form, or whether it is easily available electronically. Thus, the Court finds
that the information and arguments presented here do not establish that this factor weighs strongly
in favor of transfer. In sum, the private interests of convenience of witnesses weights slightly—
but not strongly—in favor of transfer, and the remaining private interest factors are inconclusive.
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Turning to the public interest factors, Adaptasoft argued that “the strong interest in having
localized controversies decided at home tips the scales in favor of having this case transferred.”
(ECF No. 7 at 14). To support this conclusion, Adaptasoft argued that “[c]ertainly, the Northern
District of Indiana has an interest in resolving a dispute about a Company located within its
jurisdiction, versus a remote court with no real ties to the Company or dispute at issue.” (ECF No.
7 at 15). Ms. Streeter counters that Ohio does have in interest in this dispute: “Ohio has a public
interest in how its residents and employees are treated by foreign corporations who purposefully
direct activity towards the State.” (ECF No. 16 at 8). The Court agrees that Ohio has an interest
in how its residents are treated by foreign corporations. And, of course, Indiana has an interest in
resolving a dispute about a company located in its jurisdiction. Thus, the public interest factor of
having localized controversies decided at home weighs in favor of neither forum.
In addition, Ms. Streeter contends that the disparity in bargaining power between Ms.
Streeter and Adaptasoft as employee and employer, respectively, weighs against transfer. (ECF
No. 16 at 8). Though Ms. Streeter does not fully develop this argument, the Court agrees that the
public has an interest in protecting the rights of individuals against corporations with more
bargaining power. Merely because a corporation has more employees in one state, for instance, or
because a corporation is in control of most of the documentary evidence, an individual plaintiff
should not be forced to litigate her claims where the corporation has its place of business. Thus,
the Court finds the public interest in this case weighs slightly in favor of litigating the claims in
the Southern District of Ohio, the plaintiff’s choice of forum.
Considering all of the private and public interests, the Court finds overall that Adaptasoft
has not made a sufficiently “‘strong showing of inconvenience to warrant upsetting the Plaintiff’s
choice of forum.’” Shanehchian v. Macy’s, Inc., 251 F.R.D. 287, 289 (S.D. Ohio Apr. 16, 2008)
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(citing Hobson v. Princeton–New York Investors, Inc., 799 F. Supp. 802, 804, 805 (S.D. Ohio
1992)). Venue should not be transferred because the relevant factors do not “weigh heavily in
favor of the defendant.” Id. at 289 (citing West American Ins. v. Potts, 908 F.2d 974, 1990 WL
104034 at *2 (6th Cir.1990)). The Court, in its discretion, therefore declines to transfer venue and
Adaptasoft’s Motion to Dismiss in so far as it seeks transfer pursuant to 28 U.S.C. § 1404(a) is
DENIED.
IV. CONCLUSION
In summary, Defendant Adaptasoft, Inc.’s Motion to Dismiss for Forum Non Conveniens,
or, in the Alternative, Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), (ECF No. 7), is
DENIED. Defendant’s request for dismissal on the basis of a forum selection clause cannot be
granted because no forum selection clause exists in this case. Moreover, Defendant’s request that
this case be transferred to the United States District Court for the Northern District of Indiana
pursuant to 28 U.S.C. § 1404(a) fails because Defendant did not demonstrate that a transfer of
venue is appropriate. Plaintiff’s Motion to File Surreply in Response to Defendant’s Motion to
Dismiss for Forum Non Conveniens, or, in the Alternative, Motion to Transfer Venue Pursuant to
28 U.S.C. § 1404(a), (ECF No. 11), is DENIED AS MOOT. Finally, Plaintiff’s Motion to File
Surreply in Response to Defendant’s Motion to Dismiss for Forum Non Conveniens, or, in the
Alternative, Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), (ECF No. 20), is
DENIED.
IT IS SO ORDERED.
DATED: August 23, 2018
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
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