Kwiecinski v. Medi-Tech International Corp.
Filing
20
Opinion and Order: The Court DENIES Motion to Dismiss 6 . Defendant must file its answer to Plaintiff's Amended Complaint no later than 7/10/2015. The parties are to file a case-management schedule and submit no later than 7/17/2015, a joint status report. The Court will set a Rule 16 Conference after 7/17/2015. Signed on 06/25/2015 by Judge Anna J. Brown. See attached 15 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOSEPH KWIECINSKI,
Plaintiff,
v.
MEDI-TECH INTERNATIONAL
CORP., a Delaware
corporation,
Defendant.
DONALD B. POTTER
Spaulding & Potter LLP
3236 S.W. Kelly Avenue
Suite 101
Portland, OR 97239
(503) 223-2612
Attorneys for Plaintiff
DANIEL J. NICHOLS
Gordon & Rees LLP
121 S.W. Morrision
Suite 1575
Portland, OR 97204
(503) 222-1075
Attorneys for Defendant
1 - OPINION AND ORDER
3:14-CV-01512-BR
OPINION AND ORDER
BROWN, Judge.
This matter comes before the Court on Defendant Medi-Tech
International Corp.'s Motion (#6) to Dismiss Amended Complaint.
For the reasons that follow, the Court DENIES Defendant’s Motion.
BACKGROUND
The following facts are taken from the Complaint, the
Amended Complaint, and the parties' materials related to
Defendant’s Motion to Dismiss.
At some point before July 20, 2012, Plaintiff Joseph
Kwiecinski, an Oregon resident, was interviewed by telephone and
videoconference in Oregon by Defendant, a Delaware corporation
with its principal place of business in New York, for a position
as a sales representative for Defendant’s Northwest territory,
which includes Oregon, Washington, Alaska, Montana, and Idaho.
In July 2012 Defendant offered Plaintiff the salesrepresentative position over the telephone while Plaintiff was in
Oregon.
On July 20, 2012, Defendant emailed Plaintiff an employment
agreement.
Plaintiff signed the employment agreement at his
residence in Oregon and emailed it to Defendant.
The employment
agreement included the following forum-selection clause:
Should any legal dispute, pursuant to this
contract, be filed against either party, all
disputes must be filed in the State of New York,
2 - OPINION AND ORDER
Supreme Court, County of Kings and all disputes
will be governed by appropriate New York State
law.
Decl. of Millard Roper, Ex. A at 2.
On August 20, 2012, Plaintiff began working for Defendant
out of an office in his home in Oregon.
In August 2012 Plaintiff
traveled to the New York City metropolitan area for in-service
training.
On August 22, 2012, while on the in-service training trip,
Plaintiff was a passenger in a car driven by a coworker that was
rear-ended by a third party.
injuries.
Plaintiff suffered unspecified
Plaintiff “quickly” informed Randy Walsh, Defendant’s
Vice President of Sales, about Plaintiff’s injuries.
Plaintiff,
however, did not immediately seek medical attention because he
believed at that time that his injuries were not severe.
Over the two days following the accident Plaintiff did not
recover fully from his injuries and advised his “superiors” that
he needed to see a doctor.
Plaintiff, however, was unable to see
a doctor before his August 24, 2012, flight back to Oregon.
On August 24, 2012, Plaintiff left messages for George
Fortunato, Defendant’s President, that he might have a worker’s
compensation claim.
On August 27, 2012, Fortunato allegedly advised Plaintiff in
a telephone conversation to have any doctor bills arising from
the accident sent directly to Fortunato for payment.
3 - OPINION AND ORDER
Fortunato
allegedly advised Plaintiff that he did not want any worker’s
compensation claims made against Defendant and indicated
Plaintiff would be terminated if he filed a worker’s compensation
claim.
In September 2012 Plaintiff received a letter from the
insurance company of the co-worker who was driving the car
informing Plaintiff that he needed to file a workers'
compensation claim.
On September 26, 2012, Plaintiff filed a
workers' compensation claim in New York.
On October 29, 2012, Walsh telephoned Plaintiff and told him
that his employment was terminated.
On November 1, 2012, Plaintiff received a letter at his
Oregon address from Walsh terminating Plaintiff’s employment as
of October 29, 2012.
On February 22, 2013, Plaintiff filed a workers’
compensation claim in Oregon.
On March 4, 2013, the Workers’ Compensation Board for the
State of New York held a hearing on Plaintiff’s claim.
Decl., Ex. C at 1.
Roper
Plaintiff participated by telephone.
On March 7, 2013, the New York Workers’ Compensation Board
issued a Notice of Decision in which it appears to have closed
the matter and noted Plaintiff was to “reopen case with counsel.
No further action is planned by the Board at this time.”
Decl., Ex. C at 1.
4 - OPINION AND ORDER
Roper
On September 23, 2014, Plaintiff filed an action in this
Court against Defendant alleging claims for workers’ compensation
discrimination in violation of Oregon Revised Statute
§ 659A.040, failure to pay wages in violation of Oregon’s wageand-hour laws, and failure to pay final wages in violation of
Oregon’s wage-and-hour laws.
On December 15, 2014, before Defendant filed an Answer,
Plaintiff filed an Amended Complaint in which he alleged claims
for workers’ compensation discrimination in violation of Oregon
Revised Statute § 659A.040 and failure to pay final wages in
violation of Oregon’s wage-and-hour laws.
Defendant filed a Motion to Dismiss Amended Complaint for
lack of personal jurisdiction and/or on the ground that venue is
not proper in Oregon.
On April 17, 2015, the Court heard oral
argument on Defendant’s Motion.
At oral argument Plaintiff
voluntarily dismissed his claim against Defendant for failure to
pay final wages in violation of Oregon’s wage-and-hour laws, the
Court denied Defendant’s Motion to Dismiss for lack of personal
jurisdiction, and the Court directed the parties to file
simultaneous briefs on the Motion to Dismiss the remaining claim
for workers’ compensation discrimination for lack of venue.
On April 27, 2015, the parties filed supplemental briefs,
and the Court took this matter under advisement.
5 - OPINION AND ORDER
STANDARDS
"A defendant may raise a Rule 12(b)(3) motion to dismiss for
improper venue in its first responsive pleading or by a separate
pre-answer motion."
Design Res., Inc. v. Leather Indus. of Am.,
Inc., No. C09-611RSM, 2010 WL 342181, at *1 (W.D. Wash. Jan. 21,
2010)(citing Fed. R. Civ. P. 12(b)(3)).
burden to establish venue is proper.
Plaintiff bears the
Id. (citing Piedmont Label
Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir.
1979)).
"When deciding a motion under Fed. R. Civ. P. 12(b)(3),
the Court need not accept the pleadings as true, and may consider
facts outside of the pleadings."
Id., at *2 (citing Argueta v.
Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996)).
DISCUSSION
Defendant moves to dismiss this matter for improper venue
pursuant to Rule 12(b)(3) on the ground that Plaintiff’s claims
for wrongful termination for filing a workers’ compensation claim
and for failure to pay final wages are governed by Plaintiff’s
employment agreement, which included a forum-selection clause
providing for the resolution of disputes in New York.
A.
Applicable law
The Ninth Circuit applies “federal law in interpreting
. . . forum selection clause[s].”
Simonoff v. Expedia, Inc., 643
F.3d 1202, 1205 (9th Cir. 2011)(citing Doe 1 v. AOL LLC, 552 F.3d
6 - OPINION AND ORDER
1077, 1081 (9th Cir. 2009)).
Under federal law “[t]he plain
language of the contract should be considered first with the
understanding that the common or normal meaning of language will
be given to the words of a contract unless circumstances show
that in a particular case a special meaning should be attached to
it.”
Id. (quotations omitted).
B.
Analysis
As noted, the employment agreement signed by Plaintiff
included the following forum-selection clause:
Should any legal dispute, pursuant to this
contract, be filed against either party, all
disputes must be filed in the State of New York,
Supreme Court, County of Kings and all disputes
will be governed by appropriate New York State
law.
Plaintiff’s remaining claim for workers’ compensation
discrimination is a statutory claim rather than a contract claim.
The Ninth Circuit, however, has held “in some circumstances, a
contractual forum selection clause may also apply to related
non-contract claims.”
n.7 (9th Cir. 2013).
Petersen v. Boeing Co., 715 F.3d 276, 283
Specifically, contractual forum-selection
clauses may apply to noncontract claims “only when ‘resolution of
the [noncontract] claims relates to interpretation of the
contract.’”
Id. (quoting Manetti–Farrow, Inc. v. Gucci Am.,
Inc., 858 F.2d 509, 514 (9th Cir. 1988)).
Resolution of non-
contract claims “relate to” interpretation of the contract when
the noncontract “claims require interpretation of the contract”;
7 - OPINION AND ORDER
i.e., the non-contract claims “cannot be adjudicated without
analyzing whether the parties were in compliance with the
contract.”
Manetti-Farrow, 858 F.2d at 514 (citation omitted).
To establish a prima facie claim for workers’
compensation discrimination under Oregon law a plaintiff must
show
(1) that the plaintiff invoked the workers'
compensation system; (2) that the plaintiff was
discriminated against in the tenure, terms or
conditions of employment; and (3) that the
employer discriminated against the plaintiff in
the tenure or terms of employment because he or
she invoked the workers' compensation system.
Kirkwood v. Western Hyway Oil Co., 204 Or. App. 287, 293
(2006)(quotation omitted).
If a plaintiff makes out a prima
facie claim of workers’ compensation discrimination, the employer
must then “articulate some legitimate nondiscriminatory reason
for the adverse employment action.”
Cox v. Wal-Mart Stores Inc.
441 F. App’x 547, 551 (9th Cir. 2011)(citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)).
Defendant asserts Plaintiff’s workers’ compensation
discrimination claim relates to the employment agreement, and,
therefore, this matter must be filed in New York.
Specifically,
Defendant asserts Plaintiff was a probationary employee pursuant
to the employment contract at the time of his termination;
Plaintiff did not comply with the terms of his probationary
employment; and, therefore, Defendant was entitled to terminate
8 - OPINION AND ORDER
Plaintiff’s employment.
Defendant further asserts litigation of
Plaintiff’s compliance with the probationary terms of his
employment will require reference to the employment agreement,
and, therefore, Plaintiff’s worker’s compensation discrimination
claim “relates to” the employment agreement and the forumselection clause applies.
Defendant cites a number of cases to
support its argument, but they are distinguishable.
For example,
in Sheasly v. Orr Felt Company the plaintiff brought an action
against his employer asserting claims for disability
discrimination in violation of Oregon Revised Statute § 659A.100
and wrongful termination to prevent him from receiving welfare
plan benefits.
Oct. 25, 2010).
No. 10-CV-956-PK, 2010 WL 4273230, at *1 (D. Or.
The defendant filed a motion to dismiss for
improper venue on the ground that the plaintiff was employed
pursuant to an employment agreement with a forum-selection clause
that required the action to be filed in Ohio.
The forum-
selection clause provided in pertinent part:
[The plaintiff] and [the defendant] hereby agree
that any dispute arising under this Agreement
shall be determined in the Common Pleas Court of
Miami County, State of Ohio or in Federal District
Court for the Southern District of Ohio, Western
Division, and that no action shall be filed in any
other court pertaining to any dispute arising out
of or connected with this Agreement.
Id., at *2 (emphasis in original).
With respect to
interpretation of the language of the forum-selection clause the
court held:
9 - OPINION AND ORDER
[I]f the disjunctive “or” in the operative
language of the clause's second provision (“any
dispute arising out of or connected with [the
Employment Agreement]”) is to be given its common
or normal meaning, or indeed any meaning at all,
then “any dispute arising out of” must necessarily
mean something different from “any dispute . . .
connected with.” More specifically, giving the
words of the two phrases their common or normal
meaning, the latter phrase must necessarily
encompass claims with a more attenuated connection
to the Employment Agreement than claims strictly
“arising out of” the agreement.
Id., at *4.
Applying that interpretation to the plaintiff’s
claims, the court held:
[B]oth [the plaintiff’s] ERISA claim and his
perceived disability claim are factually premised
on the termination of his employment relationship
with [the defendant]. Although the parties'
employment relationship could have arisen
independently of the Employment Agreement, in fact
it did not; instead, the parties' employment
relationship was both created and governed by the
terms of the Employment Agreement. Because [the
plaintiff’s] claims are premised on the
termination of a relationship created and governed
by the Employment Agreement, they are necessarily
“connected with” it, although they do not “aris[e]
under” it. [The plaintiff’s] claims are therefore
within the scope of the second provision of the
forum selection clause . . ., although not within
the scope of the provision's first clause.
Id., at *5 (emphasis added).
Here the forum-selection clause limits its
applicability to legal disputes “pursuant to this contract.”
This language is similar to the limited “arising under” language
in Sheasly and not as broad as the additional contractual
provision in Sheasly that also subjected disputes “connected
10 - OPINION AND ORDER
with” the agreement to the forum-selection clause.
Thus, the
court’s holding in Sheasly that the plaintiff’s claims were
subject to the forum-selection clause only under the broader
“connected with” provision suggests Plaintiff’s claim here would
not be subject to the forum-selection clause.
Similarly, in Slater v. Energy Services Group
International, Inc., the plaintiff brought an action against her
employer for violation of Title VII, 42 U.S.C. § 2000e; the
Florida Civil Rights Act, Fla. Stat. § 760.01, et seq. (FCRA);
and the Florida Whistleblower Act, Fla. Stat. § 448.102 (FWA).
634 F.3d 1326 (11th Cir. 2011).
The district court dismissed the
plaintiff’s claims on the ground of improper venue based on a
forum-selection clause in the plaintiff’s employment agreement.
The forum-selection clause provided in pertinent part:
“The
parties agree that all claims or causes of action relating to or
arising from this Agreement shall be brought in a court in the
City of Richmond, Virginia.”
Id. at 1328-29.
The Eleventh
Circuit affirmed the district court and noted the phrase
“relating to” in the forum-selection clause indicated the clause
applied to “all claims arising ‘directly or indirectly’ from the
relationship evidenced by the contract.”
Id. at 1331.
Because
the plaintiff asserted the defendant “violated its employment
obligations by discriminating and retaliating against her,” the
court concluded her claims arose indirectly from the relationship
11 - OPINION AND ORDER
evidenced by the contract.
Id.
Here, as noted, the forum-selection clause applies only
to disputes “pursuant to the contract.”
The forum-selection
clause does not contain any broader language or provision for
disputes “related to” or “connected with” the employment
relationship.
The court’s conclusion in Slater, therefore,
suggests Plaintiff’s workers’ compensation discrimination claim
is not within the ambit of the forum-selection clause.
Defendant cites two other cases in support of its
assertion that Plaintiff’s claim for workers’ compensation
discrimination is subject to the forum-selection clause:
Martinez v. Bloomber, LP, 740 F.3d 211 (2d Cir. 2014), and
Enriquez v. Seaton, LLC, No. 13–1474– RDR, 2014 WL 791161 (D.
Kan. Feb. 27, 2014).
In Martinez the court applied English law
and in Enriquez the court applied Kansas law.
These cases,
therefore, are inapplicable.
Plaintiff relies on Shapiro v. American Bank to support
his assertion that his workers’ compensation discrimination claim
is not subject to the forum-selection clause.
No. 3:12–CV–
01358–AC, 2013 WL 4095246 (D. Or. Aug. 8, 2013).
In Shapiro the
plaintiff brought an action against her employer for violation of
Oregon's Whistleblowing Statute, Oregon Revised Statute
§ 659A.199, and for discrimination under Oregon Revised Statute
§ 659A.230 based on the plaintiff reporting criminal conduct.
12 - OPINION AND ORDER
The defendant moved to dismiss the action for improper venue on
the ground that the plaintiff’s employment contract contained the
following forum-selection clause:
“This Agreement shall be
governed by, construed and interpreted in accordance with laws of
the State of Maryland. . . .
Employee agrees that he or she will
be subject to the jurisdiction of and appear in Maryland federal
and state courts.”
Id., at *1.
The court held the plaintiff’s
claims were not subject to the forum-selection clause:
Missing from the agreement here is the more
inclusive language often found in employment
contracts that covers all claims arising in the
scope of employment, without qualification. Thus,
the express terms of the employment contract limit
the scope of the governing law provision to the
Agreement. In fact, the language in the forum
selection clause here is as restrictive as
instances in which the parties agree to litigate
in a particular forum claims “arising under” the
agreement. See Mediterranean Enter., Inc. v.
Ssanyong Corp., 708 F.2d 1458, 1464 (9th Cir.
1983)(“We have no difficulty finding that ‘arising
under’ is intended to cover a much narrower scope
of disputes, i.e., only those relating to the
interpretation and performance of the contract
itself.”). Neither the express provisions of
Shapiro's employment contract nor the implementing
language of the forum selection clause contemplate
Shapiro's claims here.
Id., at *6.
The court distinguished the forum-selection clause
at issue with the clause in Slater:
Slater can be distinguished from the case at hand,
however, because the forum selection clause in the
employment contract in Slater was much broader in
scope than the forum selection clause in the
employment contract in this case. Id. at 1329.
Because the forum selection clause in the contract
in question in Slater governed the entirety of the
13 - OPINION AND ORDER
employment relationship between the plaintiff and
her employer, the Eleventh Circuit found “the
clause is expressly applicable to ‘all claims or
causes of action relating to or arising from [the
employment agreement].’ This includes all claims
arising ‘directly or indirectly from the
relationship by the contract.” Id. at 1331
(citation omitted). This language is much broader
than the language used in the forum selection
clause here, which expressly governs only claims
arising from the employment contract, and is
silent as to claims relating to the contract.
Id., at *7.
The Court finds the language of the forum-selection
clause here to be similar to the restrictive language in Shapiro
rather than the broad language in Sheasley and Slater.
Like the
court in Shapiro, this Court concludes Plaintiff’s claim for
workers’ compensation discrimination can “be adjudicated without
analyzing whether the parties were in compliance with the
contract.”
See Manetti-Farro, 858 F.2d at 514.
The Court,
therefore, concludes Plaintiff’s claim for workers’ compensation
discrimination is not subject to the forum-selection clause found
in his employment agreement.
Accordingly, the Court denies Defendant’s Motion to
Dismiss Amended Complaint.
CONCLUSION
For these reasons, the Court DENIES Motion (#6) to Dismiss
14 - OPINION AND ORDER
Amended Complaint.
Case Management Directions:
Defendant must file its Answer
to Plaintiff’s Amended Complaint no later than July 10, 2015.
The parties must confer concerning a case-management schedule and
submit no later than July 17, 2015, a JOINT STATUS REPORT
outlining a schedule they propose for discovery, motion practice,
and trial and to address any other scheduling matters they
anticipate.
The Court will set a Rule 16 conference to discuss
the parties’ proposals after July 17, 2015.
IT IS SO ORDERED.
DATED this 25th day of June, 2015.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
15 - OPINION AND ORDER
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