Hewitt v. Salina et al

Filing 15

ORDER granting 9 C.R. England, Inc.'s Motion to Dismiss and finding as moot 14 Plaintiff's Motion to Approve Service by Other Means on Defendant Juan Salinas, and Alternative Motion for Extension of Time to Obtain Service (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 1/5/2012. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TODD HEWITT,
Plaintiff,
vs.
JUAN SALINA AND
C.R. ENGLAND, INC.,
Defendants.

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Case No. CIV-11-969-M

ORDER
Before the Court is Defendant C.R. England, Inc.’s Motion to Dismiss, filed October 20,
2011. On November 11, 2011, plaintiff filed his objection. Defendants’ reply was filed on
November 17, 2011. Based upon the parties’ submissions, the Court makes its determination.
I.

Background
On July 2, 2009, plaintiff was riding and defendant Juan Salina (“Salina”) was driving a

tractor-trailor on behalf of defendant C.R. England Inc. (“C.R. England”) near Havre De Grace,
Maryland when an accident occurred. Plaintiff, a passenger, suffered personal injuries as a result
of the accident. At the time of the accident plaintiff had executed and was bound by an Offer of
Employment from C.R. England wherein plaintiff agreed that venue of any claims filed for injuries
or accidents would be brought in the State of Utah.
On June 29, 2011, plaintiff filed a petition in the District Court of Blaine County, State of
Oklahoma, Case No. CJ-2011-45. On August 26, 2011, this case was transferred to the Western
District of Oklahoma.

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II.

Discussion
C.R. England asserts this matter should be dismissed because venue is improper.

Specifically, C.R. England contends because the forum selection clause set forth in plaintiff’s
Conditional Offer of employment is mandatory this action must be litigated in the State of Utah.
Plaintiff contends C.R. England waived its venue objection in the state court proceeding before this
action was removed. Plaintiff also contends because the contractual forum selection clause was not
signed by defendant Salina this negligence action should not be dismissed. Finally, plaintiff
contends because he resides in Watonga, Oklahoma, the accident occurred in Maryland and C.R.
England, a Utah corporation, travels through Oklahoma it would be unreasonable to force him to
litigate his claim in Utah.
Regarding the waiver of C.R. England’s venue objection in state court, in Young v. Walton,
807 P.2d 248 (Okla. 1991), the Oklahoma Supreme Court held that by making a “special
appearance,” explicitly qualifying its reservation of time in which to respond, defendants are not
precluded by law from objecting to venue. Additionally, in Mich. Ele. Emps. Health Plan v. Granite
Re, Inc., 2011 U.S. Dist. LEXIS 52282 (W.D. Okla. May 16, 2011), this Court, in considering the
enforceability of a forum selection clause against a non-party, found: “There is ample support for
the conclusion that the fact a party is a non-signatory to an agreement is insufficient, standing alone
to preclude enforcement of a forum selection clause.” Id. Finally, because forum selection clauses
are prima facie valid, plaintiff must show it unreasonable. See The Bremen v. Zapata Off-Shore
Co., 92 S.Ct. 1907 (1972). Any “party resisting enforcement of a forum selection provision carries
a heavy burden of showing that provision itself is invalid due to fraud or overreaching or that
enforcement would be unreasonable and unjust under the circumstances.” Riley v. Kingsley

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Underwriting Agencies, Ltd., 969 F.2d 953, 957 (10th Cir. 1992).
Having carefully reviewed the parties’ submissions, the Court finds plaintiff has not alleged
sufficient facts to demonstrate that the forum selection agreement was unreasonable. Specifically,
plaintiff went to Utah seeking employment with C.R. England, a Utah corporation, and in exchange
for conditional employment with C.R. England, plaintiff executed the forum selection agreement
requiring all claims to be presented in Utah. Plaintiff does not allege fraud or overreaching but that
it would be inconvenient for him to litigate in Utah.
III.

Conclusion
Accordingly, the Court finds C.R. England’s forum selection agreement enforceable. Thus,

the Court GRANTS C.R. England, Inc.’s Motion to Dismiss [docket no. 9]. In light of the Court’s
decision to dismiss this matter, the Court finds Plaintiff’s Motion to Approve Service by Other
Means on Defendant Juan Salinas, and Alternative Motion for Extension of Time to Obtain Service
is MOOT [docket no. 14].
IT IS SO ORDERED this 5th day of January, 2012.

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