Johnson v. Copiers Northwest, Inc.
Opinion and Order - Johnson and Copiers NW are parties to a valid and enforceable forum-selection clause that is applicable to Johnson's claim for unpaid wages. That claim should be heard in state court in King County, Washington. Further, the C ourt declines to accept jurisdiction over Johnson's declaratory judgment claim while another claim implicating similar subject matter is pending in Washington. Accordingly, the Court GRANTS Copiers NW's Motion to Dismiss on the doctrine of forum non conveniens. ECF 12 . This case is dismissed without prejudice. The Court also denies Copiers NW's request for attorney fees. Signed on 5/12/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 16-cv-1556-SI
OPINION AND ORDER
COPIERS NORTHWEST, INC., a foreign
Jeffrey M. Edelson and Steffan Alexander, MARKOWITZ HERBOLD, PC, 1211 SW Fifth Avenue,
Suite 3000, Portland, Oregon 97204-3730. Of Attorneys for Plaintiff.
John L. Loesch and Alexander F. Strong, BENDICH, STOBAUGH & STRONG, PC, 701 Fifth
Avenue, Suite 4850, Seattle, Washington 98104. Of Attorney for Defendant.
Michael H. Simon, District Judge.
Plaintiff Scott Johnson, an Oregon citizen, brings this action against Defendant Copiers
Northwest, Inc. (“Copiers NW”), a Washington corporation headquartered in Seattle. As alleged
in Plaintiff’s First Amended Complaint (“FAC”), on January 25, 2010, Johnson and Copiers NW
entered into a contract relating to Johnson’s employment at Copiers NW, titled “Employment
Offer and Agreement with Non-Solicitation Covenant” (“Employment Agreement”). FAC ¶ 8.
As his first claim for relief, Johnson seeks a declaration that the restrictive covenant, titled “NonPAGE 1 – OPINION AND ORDER
Solication,” found in paragraph 7 of the Employment Agreement is actually a noncompetition
agreement that is voidable under Oregon statutory law, specifically Or. Rev. Stat. § 653.295. As
his second claim for relief, Johnson seeks unpaid wages and penalty wages under Oregon
statutory law, specifically, Or. Rev. Stat. §§ 652.140(2) and 652.150. Johnson alleges that
Copiers NW failed to pay Johnson “his full earned wages or compensation when due him under
his Compensation Plan.” FAC ¶ 22.1 Copiers NW moves to dismiss the action under the doctrine
of forum non conveniens, relying on a forum-selection clause contained in paragraph 8 of the
Employment Agreement. ECF 12. That forum-selection clause reads: “Any proceedings for
injunctive relief or enforcement of this Agreement shall be brought in Superior Court for King
County, State of Washington.” ECF 14 at 7. For the reasons stated below, the Court GRANTS
Copiers NW’s Motion to Dismiss.
When a party seeks to enforce a contractual forum-selection clause pointing to a
nonfederal forum, an appropriate way to enforce it is through a motion raising the doctrine of
forum non conveniens. Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for the W. Dist. of Tex.,
134 S. Ct. 568, 580 (2013) (“Instead, the appropriate way to enforce a forum-selection clause
pointing to a state or foreign forum is through the doctrine of forum non conveniens.”).2 The
Although Johnson did not provide a copy of his Employment Agreement with his First
Amended Complaint, Copiers NW filed a copy in support of its motion to dismiss. See ECF 14.
Paragraph 2 of the Employment Agreement provides that “This position is exempt and the
compensation for this employment is outlined at Addendum A.” Id. at 4. The parties disagree
over what is the applicable Addendum, which sets forth Johnson’s Compensation Plan.
In Atlantic Marine, the Supreme Court noted that the petitioner in the case had not filed
a motion under Federal Rule of Civil Procedure 12(b)(6) and at no point was the applicability of
Rule 12(b)(6) briefed, and so the Court did not reach whether Rule 12(b)(6) offers another
enforcement mechanism. 134 S. Ct. at 580. The Supreme Court explained, however, that even if
Rule 12(b)(6) could be used “to enforce a forum-selection clause, that would not change our
conclusions that § 1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forumPAGE 2 – OPINION AND ORDER
doctrine of forum non conveniens “rests on the principle that a court may resist imposition upon
its jurisdiction when the matter may be more conveniently tried in another forum, even when
jurisdiction is authorized by the letter of a general venue statute.” Hamilton v. Firestone Tire &
Rubber Co., Inc., 679 F.2d 143, 146 (9th Cir. 1982) (citing Gulf Oil Corp. v. Gilbert, 330
U.S. 501 (1947)). The Ninth Circuit has cautioned, however, that “[t]he doctrine of forum non
conveniens is a drastic exercise of the court’s ‘inherent power’ because, unlike a mere transfer of
venue, it results in the dismissal of the plaintiff’s case. . . . Therefore, we have treated forum non
conveniens as ‘an exceptional tool to be employed sparingly,’ and not a ‘doctrine that compels
plaintiffs to choose the optimal forum for their claim.’” Carijano v. Occidental Petroleum
Corp., 643 F.3d 1216, 1224 (9th Cir. 2011) (quoting Dole Food Co. v. Watts, 303 F.3d 1104,
1118 (9th Cir. 2002)).
When the parties have formed a contract that includes a valid forum-selection clause,
federal law controls whether the clause is enforceable. Manetti-Farrow, Inc. v. Gucci Am.,
Inc., 858 F.2d 509, 513 (9th Cir. 1988). In Atlantic Marine, the Supreme Court clarified the
factors that a district court should consider when evaluating the enforceability of a valid forumselection clause. 134 S. Ct. at 581-82. In the presence of a valid forum-selection clause, “the
plaintiff’s choice of forum merits no weight.” Id. at 581. Additionally, the district court “should
not consider arguments about the parties’ private interests. . . . A court accordingly must deem
the private-interest factors [including inconvenience to the parties] to weigh entirely in favor of
the preselected forum.” Id. at 582. The district court may only consider arguments concerning
public-interest factors, which “will rarely defeat” a motion to dismiss. Id.
selection clause and that § 1404(a) [for other federal forums] and the forum non conveniens
doctrine [for nonfederal forms] provide appropriate enforcement mechanisms.” Id.
PAGE 3 – OPINION AND ORDER
The Supreme Court also explained that a valid forum-selection clause alters the ordinary
forum non conveniens analysis. Atl. Marine, 134 S. Ct. at 581. A court must give a forumselection clause “controlling weight in all but the most exceptional cases.” Id. at 579 (internal
citation and quotation marks omitted). Courts should not “unnecessarily disrupt the parties’
settled expectations” when the parties have “contracted in advance to litigate disputes in a
particular forum.” Id. at 583. “In all but the most unusual cases, therefore, ‘the interest of justice’
is served by holding parties to their bargain.” Id.; see also Swenson v. T-Mobile USA, Inc., 415 F.
Supp. 2d 1101, 1104 (S.D. Cal. 2006) (“[Forum selection clauses] are prima facie valid and are
enforceable unless the party challenging enforcement shows the clause is unreasonable under the
circumstances.” (citing R.A. Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 325 (9th
Cir. 1996))). A plaintiff bears the burden of showing exceptional circumstances that make
dismissal inappropriate despite a valid and applicable forum-selection clause. 3 See Atl.
Marine, 134 S. Ct. at 581.
Copiers NW recruited Johnson to work as a Sales Representative for specified geographic
regions within Oregon. ECF 16 at 1-2. On January 25, 2010, Johnson began working for Copiers
NW and signed the Employment Agreement. ECF 13 at 9-14; ECF 14 at 4-9. The Employment
Agreement also appears to incorporate a Compensation Plan as an addendum to the Employment
Agreement that outlines Johnson’s salary, sales quotas, and other details of his compensation and
responsibilities as a Sales Representative for Copiers NW. ECF 13 at 9; ECF 14 at 11.
Although Atlantic Marine dealt with a motion to transfer under 28 U.S.C. § 1404(a) and
the doctrine of forum non conveniens calls for dismissal, the Supreme Court held that federal
courts “should evaluate a forum-selection clause pointing to a nonfederal forum [by applying the
same balancing-of-interests standard used to] evaluate a forum-selection clause pointing to a
federal forum.” Atl. Marine, 134 S. Ct. at 580.
PAGE 4 – OPINION AND ORDER
At least three provisions of the Employment Agreement are at issue in this lawsuit. First,
the Agreement contains a “Non-Solicitation” provision that reads as follows:
A. During your employment with CNW and for a period of twentyfour months after the termination of your employment, You agree
that You will not on your personal behalf or on behalf of any other
person or entity besides CNW:
1. Make any effort, directly or indirectly, to obtain business from
any customer or prospective customer of CNW that you had direct
2. Cause or attempt to cause any customer or prospective customer
of CNW to reduce its business with CNW;
3. Accept business from any customer or prospective customer of
ECF 13 at 10-11. Mr. Johnson characterizes this provision as a “non-compete clause.”
Second, the Agreement contains a provision entitled “Recruitment of Employees” that
During employment and for a period of twelve months after
termination, You agree not to recruit any employee to leave CNW
and to go to work for You or your new employer or another entity
on whose behalf You solicited the CNW employee. The parties
agree that this would be seriously damaging to CNW . . . .
Id. at 12.
Finally, and most importantly for the purposes of deciding the pending motion to dismiss,
the Employment Agreement contains a forum-selection clause. The Agreement’s “Venue”
Any proceedings for injunctive relief or enforcement of this
Agreement shall be brought in Superior Court for King County,
State of Washington; unless, CNW exercises its right under
Section 13 to settle the claim by arbitration.
Id. (emphasis added).
PAGE 5 – OPINION AND ORDER
Johnson ended his employment with Copiers NW on August 1, 2016. ECF 16 at 2.
Copiers NW asserts that during Johnson’s exit interview, he stated his intention to contact
current and prospective Copiers NW customers, which Copiers NW contends is a violation of the
Employment Agreement’s non-solicitation provision. See ECF 13 at 10-11. Copiers NW also
asserts that Johnson recruited two other Sales Representatives who worked for Copiers NW in
Johnson’s regional team and that Johnson asked them to leave Copiers NW and join him with a
new employer, also in alleged violation of the Employment Agreement. Id. at 12.
Johnson filed this case in the District of Oregon on August 1, 2016, but he did not serve
the summons and complaint until October 16, 2016. ECF 1; ECF 13 at 2, ¶3. Copiers NW filed
its own lawsuit against Johnson in King County Superior Court on August 10, 2016, and served
Johnson on August 11, 2016. ECF 13 at 1, ¶ 2. In its lawsuit, Copiers NW seeks an injunction
prohibiting Johnson from soliciting current and prospective customers of Copiers NW and from
recruiting employees of Copiers NW. ECF 17-1 at 10. Copiers NW also seeks money damages
for past violations of the Employment Agreement, plus attorney’s fees and costs. ECF 17-1
Johnson removed the lawsuit filed by Copiers NW to the United States District Court for
the Western District of Washington, ECF 13 at 2, and then moved to transfer that case to this
Court. ECF 17-2. The Western District of Washington, however, denied Johnson’s motion to
transfer and remanded that case back to Washington state court on the grounds that the parties’
forum-selection clause contained in the Employment Agreement was enforceable and required
adjudication of the dispute in King County Superior Court. Copiers Nw. v. Johnson, 2017
WL 406168, at *2, 4 (W.D. Wash. Jan. 31, 2017).
PAGE 6 – OPINION AND ORDER
At the center of this dispute is whether the forum-selection clause in the parties’
Employment Agreement applies to Johnson’s claims in this case, and if so, whether the clause is
enforceable. Copiers NW argues that the forum-selection clause applies because Johnson is
seeking to enforce the terms of the Employment Agreement, and according to the Agreement’s
terms and case law, the forum-selection clause controls. Johnson argues that the forum-selection
clause does not apply to his claims because the clause is narrowly constructed to only cover
“injunctive relief and enforcement of this [Employment] Agreement” and he is not seeking “to
enforce” the Agreement.4 According to Johnson, both of his claims are brought exclusively
under specific Oregon statutes, the federal Declaratory Judgment Act, 28 U.S.C. § 2202, and
Federal Rule of Civil Procedure 57. Thus, argues Johnson, he is not seeking “to enforce” the
Employment Agreement. In the alternative, Johnson argues that the forum-selection clause is
against public policy and thus unenforceable.
A. Application of the Forum-Selection Clause
Johnson first argues that the Employment Agreement’s forum-selection clause does not
apply to his claims because it only covers “injunctive relief or enforcement of this Agreement.”
ECF 13 at 12. According to Johnson, he is not seeking enforcement of the Employment
Agreement, but instead brings statutory wage, penalty, and fee claims under Oregon statutory
Oregon law obligates an employer to pay, within certain timeframes, all wages earned
and unpaid at the time an employee leaves employment. Or. Rev. Stat. § 652.140(2). If an
Johnson’s original Complaint filed in this case alleged as its second claim “breach of
contract.” ECF 1 at 5. That claim has been renamed in Johnson’s First Amended Complaint as a
claim for “unpaid wages” under Oregon’s wage statutes. FAC at 5.
PAGE 7 – OPINION AND ORDER
employer “willfully fails to pay any wages or compensation . . . as provided in ORS 652.140,”
penalties apply until the employer complies. Or. Rev. Stat. § 652.150(1). Further, “[i]n any
action for the collection of wages, if it is shown that the wages were not paid for a period of 48
hours . . . after the wages became due and payable, the court shall, upon entering judgment for
the plaintiff, include in the judgment . . . a reasonable sum for attorney fees.” Or. Rev. Stat.
§ 625.200(2). Johnson’s claims for penalties and attorney’s fees under §§ 652.150(1)
and 652.200(2), thus, are dependent on and derivative of his claim for unpaid wages under
§ 652.140(2). See Marshall v. Wells Capital Mgmt. Inc., 2007 WL 4565164, at *8 (D. Or.
Dec. 19, 2007) (“Because I recommend that the O.R.S. 652.140 claim be dismissed, I
recommend that the O.R.S. 652.150 claim be dismissed as well.”); Or. Rev. Stat. § 652.200(2)
(stating that “upon entering judgment for the plaintiff” the court shall award attorney fees). The
Court, therefore, focuses on whether Johnson’s claim for unpaid wages under § 652.140(2) seeks
to “enforce” the Employment Agreement such that the claim falls within the Employment
Agreement’s forum-selection clause.
Copiers NW cites several Ninth Circuit decisions for the proposition that whether a claim
is subject to a forum-selection clause “depends on whether resolution of the claims relates to
interpretation of the contract.” Manetti-Farrow, 858 F.2d at 514; see also In re Orange, 818 F.3d
956, 962 (9th Cir. 2016); see also Copiers Nw., 2017 WL 406168, at *4. In his FAC, Johnson
alleges that the “Compensation Plan established the wages owed to [him],” that he “performed
any obligations that he may have under the Compensation Plan,” and that Copiers NW “failed to
pay Johnson his full earned wages or compensation when due to him under his Compensation
Plan, and failed to pay them as termination pay, the approximate amount of $50,000.” FAC
¶¶ 20-22. As noted above, the Compensation Plan is Addendum A to the Employment
PAGE 8 – OPINION AND ORDER
Agreement, although the parties disagree on which is the applicable Addendum A. Thus,
determination of the amount of unpaid wages owed to Johnson will require interpretation and
application of the Compensation Plan, which is a part of the Employment Agreement.
Accordingly, even construing the Agreement’s forum-selection clause narrowly, Johnson’s claim
for unpaid wages falls within its scope as a claim for “enforcement of this [Employment]
Agreement.” Thus, the Court will dismiss Johnson’s claim for unpaid wages in favor of the
parties’ agreed-upon forum in King County Superior Court, unless Johnson can show that the
forum-selection clause is unenforceable on other grounds.
B. Enforceability of the Forum-Selection Clause
Johnson asserts that the Employment Agreement’s forum-selection clause is contrary to
the public interest such that the Court should refuse to enforce that provision. The Supreme
Court has noted, however, that public-interest factors “will rarely defeat” a motion to dismiss on
the basis of forum non conveniens. Atl. Marine, 134 S. Ct. at 582. Further, because this case
involves a valid forum-selection clause, the court “should not consider arguments about the
parties’ private interests. . . . A court accordingly must deem the private-interest factors to weigh
entirely in favor of the preselected forum.” Id. “[A]s the party defying the forum-selection
clause, the plaintiff bears the burden of establishing that [dismissal in favor of] the forum for
which the parties bargained is unwarranted.” Id. at 581. This is a high burden requiring Johnson
to show “that [the] public-interest factors overwhelmingly disfavor” dismissal. See id. at 583
The public-interest factors “include administrative difficulties flowing from court
congestion; imposition of jury duty on the people of a community unrelated to the litigation; the
local interest in resolving the controversy at home; the interest in having a diversity case tried in
a forum familiar with the law that governs the action; and the avoidance of unnecessary conflicts
PAGE 9 – OPINION AND ORDER
of law problems.” Gemini Capital Grp., Inc. v. Yap Fishing Corp., 150 F.3d 1088, 1094 (9th Cir.
1998). In order to defeat Copiers NW’s motion to dismiss in favor of the contracted-for venue,
these factors must establish that “extraordinary circumstances unrelated to the convenience of the
parties clearly disfavor a [dismissal].” Atl. Marine, 134 S. Ct. at 575. According to the Supreme
Court, “[i]n all but the most unusual cases . . . ‘the interest of justice’ is served by holding parties
to their bargain.” Id. at 583.
1. Administrative Difficulties Flowing from Court Congestion
Johnson argues that this factor weighs in his favor because the case load is significantly
heavier in King County Superior Court than in this Court. He also argues that this Court is better
positioned to reach a swift resolution of his claims than King County Superior Court because this
Court has a “head start” in the litigation and has already set deadlines for moving the case
forward and that having to wait for a judgment regarding the non-solicitation and recruitment
clauses in King County Superior Court could render any judgment meaningless because the
restrictive covenants naturally expire on their own terms twenty-four and twelve months,
respectively, from the termination of Johnson’s employment. Both of these arguments, however,
are private-interest factors that the Court may not consider. Atl. Marine, 134 S. Ct. at 582.
Copiers NW does not dispute that King County Superior Court has a heavier case load
than this Court. The Court finds that because the evidence shows a heavier case load in King
County Superior Court than in this Court, this factor weights slightly in favor of denying Copiers
NW’s motion to dismiss. The Court also notes, however, that King County Superior Court
already has a case pending before it involving the same parties and similar issues and so the
addition of this case may not involve much of an increased burden on that court. Accordingly,
the evidence does not show that dismissing these claims in favor of the parties’ agreed-upon
forum would in fact result in administrative difficulties or increased burdens for King County
PAGE 10 – OPINION AND ORDER
Superior Court. Further, this factor is the “most speculative.” In re Genentech, Inc., 566 F.3d
1338, 1347 (Fed. Cir. 2009) (commenting that this factor is the “most speculative” because
“case-disposition statistics may not always tell the whole story”).
2. Imposition of Jury Duty
Johnson also argues that this factor weighs in his favor because Oregon jurors have
significant interest in making sure all corporations abide by Oregon’s wage laws. On the other
hand, Copiers NW is based in the State of Washington. Thus, jurors in Washington also have an
interest in ensuring that Washington-based corporations are complying with labor laws in
whatever jurisdiction they may operate. Thus, this is not a case where the alternative forum has
no connection with the litigation. Yet, given Oregon’s statutory requirements for unpaid wages
and notice provisions for non-compete agreements, which are issues central to this case, the
Court finds this factor weighs slightly against dismissal.
3. Local Interest in the Controversy
Johnson also argues that this factor weighs in his favor because all relevant aspects of his
employment occurred in Oregon and the disputed potential customers are in Oregon. Johnson
also argues, citing to a previous case from this district, that the “Supreme Court has held that
[the] local interest factor weighs in favor of maintaining claims in the location of the relevant
incident and the residence of potential plaintiffs.” Wolfe v. RV Factory LLC, 2016 WL 1117425,
at *4 (D. Or. Mar. 22, 2016) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260 (1981)).
Copiers NW responds that Oregon also has a public policy interest that favors
enforcement of forum-selection clauses. In Munson v. Valley Energy Investment Fund U.S., LP,
the Oregon Court of Appeals held that “[i]n Oregon, where a court concludes that the parties
have a valid and enforceable agreement to litigate the action in a different venue, the court must
‘dismiss the action . . . .’” 264 Or. App. 679, 694 (2014) (quoting Black v. Arizala, 337 Or. 250,
PAGE 11 – OPINION AND ORDER
264 (2004)). Johnson is an Oregon resident, all of his work for Copiers NW occurred in Oregon,
he was paid by Copiers NW in Oregon, and most or all of his Copiers NW customers are located
in Oregon. Because the gravamen of Johnson’s claims rests squarely within Oregon, the Court
finds that this factor moderately weighs in favor of denying the motion to dismiss and retaining
jurisdiction in this Court.
4. A Forum Familiar with the Law That Governs the Action
Johnson argues that this factor weighs in his favor because this Court regularly applies
Oregon law, including the specific statutes that are at issue in this case, while the King County
Superior Court does not have such familiarity. Johnson also notes that non-competition clauses
(which is what Johnson contends is the practical effect of the non-solicitation provision in his
Employment Agreement) are enforced differently under Washington law and provide less
protection for workers than Oregon law does. Johnson argues that Copiers NW should not be
allowed to “sidestep” Oregon law by adjudicating Johnson’s claims in Washington.
As noted by other district courts in this Circuit, “[t]he weight to be afforded this factor is
necessarily dependent upon the complexity and/or unsettled nature of the state law issues
presented.” Anderson v. Thompson, 634 F. Supp. 1201, 1205 (D. Mont. 1986). Johnson’s second
claim is for unpaid wages under Or. Rev. Stat. § 652.140(2). This statute is neither complicated
nor arcane. King County Superior Court is fully competent to adjudicate this claim, if it
determines that Oregon law applies.5 Thus, this factor is neutral, or at best merits little weight.
See Nakaki v. Caesars Entm’t Operating Co., Inc., 2012 WL 12893849, at *8 (C.D. Cal.
Aug. 24, 2012) (“[B]ecause the applicable law in this action—negligence, premises liability and
The Employment Agreement provided at paragraph 9: “This agreement shall be
governed by and construed under the laws of the State of Washington.” ECF 14 at 7. Of course,
whichever court hears this dispute will likely be called upon to perform a conflicts of law
analysis to determine whether Oregon or Washington substantive law applies.
PAGE 12 – OPINION AND ORDER
product liability—is not complex, this factor does not warrant great weight.” (citing Anderson,
634 F. Supp. at 1205; Robinson Corp. v. Auto-Owners Ins. Co., 304 F. Supp. 2d 1232, 1244 (D.
Haw. 2003); and Moore’s § 111.13[m] (3d ed.))).
5. The Avoidance of Unnecessary Conflicts of Law Problems
Johnson also argues that Washington’s choice of law analysis may conflict with Oregon
law and that Oregon law should be applied to contracts for services to be rendered primarily in
Oregon by an Oregon resident. Or. Rev. Stat. §§ 15.305, 15.320(3). Oregon law also requires
that employees be given notice before signing non-competition agreements. Or. Rev. Stat.
§ 653.295(1). Johnson expresses concern that the King County Superior Court may decide to
apply Washington law to an employment arrangement that Johnson argues properly falls within
the purview of Oregon law.
Copiers NW responds that Johnson confuses the relevant Oregon policy by combining
the choice of law and venue issues. “The question is not whether the application of the forum’s
law would violate the policy of the other party’s state, but rather, whether enforcement of the
forum selection agreement would violate the policy of the other party’s state as to the forum for
litigation of the dispute.” Swenson, 415 F. Supp. 2d at 1105. As already noted, Oregon law
generally favors enforcement of forum-selection clauses. Munson, 264 Or. App. at 694. Thus a
conflicts of law problem would arise only if the King County Superior Court refused to apply
Oregon law. This issue, however, is not relevant to the question of whether the forum-selection
clause is enforceable. Additionally, as Copiers NW asserts and Johnson does not dispute, the
King County Superior Court has not yet decided which state law must apply to the Employment
Agreement at issue.
Due to the potential for a true conflict of law if Johnson’s claims are heard in King
County Superior Court, the Court finds this factor weighs slightly in favor of denying the
PAGE 13 – OPINION AND ORDER
motion. The Court, however, considers this factor speculative at this time because if King
County Superior Court determines that Oregon law applies to the Employment Agreement,
Johnson’s conflict of law concerns will be eliminated.
To summarize, the Court finds that factors 1, 2, and 5 weigh slightly against dismissing
this case, and factor 3 weighs moderately against dismissal. The Court also finds that factor 4 is
neutral. The Court concludes that because three of these factors only slightly weigh against
dismissal and that factors 1 and 5 are speculative, Johnson has not met his “burden of showing
that [the] public-interest factors overwhelmingly disfavor” dismissal. See Atl. Marine, 134 S. Ct.
at 583 (emphasis added). Thus, the Court rejects Johnson’s argument that based on the publicinterest factors this Court should refuse to enforce the parties’ otherwise valid forum-selection
clause. In further support of dismissal, the Court notes that both federal and Oregon law favor
enforcement of forum-selection clauses. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585,
593-94 (1991) (“[A] clause establishing ex ante the forum for dispute resolution has the salutary
effect of dispelling any confusion about where suits arising from the contract must be brought
and defended.”); Munson, 264 Or. App. at 694.
Because the Agreement’s forum-selection clause is valid, applies to Johnson’s claim for
unpaid wages under § 652.140, and the public-interest factors do not weigh overwhelmingly
against dismissal, the Court grants Copiers NW’s motion to dismiss.
C. Declaratory Judgment
As his first claim in this case, Johnson seeks a declaration that (1) Oregon law applies to
the Employment Agreement, including the non-solicitation provision; (2) execution of the
non-solicitation provision did not comply with Or. Rev. Stat. § 653.295(1)(a)(A); and (3) the
non-solicitation provision is void and unenforceable as a noncompetition clause. “[W]hen a party
requests declaratory relief in federal court and a suit is pending in state court presenting the same
PAGE 14 – OPINION AND ORDER
state law issues, there exists a presumption that the entire suit should be heard in state court.”
Chamberlain v. Allstate Ins. Co., 931 F.2d 1361, 1366-67 (9th Cir. 1991). “‘Ordinarily it would
be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgement
suit where another suit is pending in a state court presenting the same issues, not governed by
federal law, between the same parties.’” Id. at 1366 (quoting Brillhart v. Excess Ins. Co., 316
U.S. 491, 495 (1942)). Several district courts faced with requests for declaratory relief under
these circumstances have declined to issue a declaration. Swenson, 415 F. Supp. 2d at 1106;
Google, Inc. v. Microsoft Corp., 415 F. Supp. 2d 1018, 1026 (N.D. Cal. 2005); Shell Oil Co. v.
Frusetta, 290 F.2d 689, 691-92, 694 (9th Cir. 1961) (upholding the district court’s refusal to
issue a declaratory judgment when a state court suit with the same issues and parties was
pending); see also IBC Mfg. Co. v. Berkshire Hathaway Speciality Ins. Co., 2016 WL 4522665
(D. Or. 2016).
In its lawsuit pending against Johnson in King County Superior Court, Copiers NW seeks
to enjoin Johnson from violating the Employment Agreement’s non-solicitation and
non-recruitment provisions—i.e., to enforce the Employment Agreement. The questions of
whether Oregon law applies to the Employment Agreement, whether the non-solicitation
provisions complied with Oregon law if Oregon does apply, and whether the non-solicitation
agreement is void and unenforceable are squarely before the Washington State court. Aside from
Johnson’s request for declaratory relief in his action pending in Oregon, Johnson’s claims do not
rely on federal law. In light of Copiers NW’s pending state claims in Washington, the Court
declines to hear Johnson’s request for a declaratory judgment. See Chamberlain, 931 F.2d
PAGE 15 – OPINION AND ORDER
D. Copier NW’s Request for Attorney’s Fees
Copiers NW argues that if it is successful on its motion to dismiss this action, it should be
awarded its attorney’s fees under the Employment Agreement because it would be the prevailing
party in this case. Because the basis for NW Copiers’ claim of attorney’s fees is the Employment
Agreement, the Court looks to the text of the specific fee provision in that Agreement to see if
prevailing on a motion dismiss this action qualifies NW Copiers to receive attorney’s fees at this
time. See Am, Guard Servs., Inc. v. Mgmt. Info. Tech. Corp., 2011 WL 2940407, at *4-5 (C.D.
Cal. July 21, 2011) (noting that, in a case where a defendant prevailed on a motion to dismiss
based on a forum selection clause, when attorney’s fees are based on a contractual provision, the
prevailing party “must establish that it qualifies” for fees under the terms of the agreement, and
holding that the defendant did not so qualify because it was not yet the “prevailing party” under
the plain meaning of the agreement because the motion to dismiss did not decide the merits of
the case); cf. Jim Cooley Constr., Inc. v. N. Am. Constr. Corp., 46 F.3d 1151, at *1-2 (10th
Cir. 1995) (unpublished) (noting that while it is “beyond the norm” to award attorney’s fees in a
piecemeal fashion, when the attorney’s fees provision in the contract states that fees are to be
awarded to the prevailing party “for the enforcement of any terms” of the agreement, the party
prevailing on a motion to dismiss based on enforcing the forum selection clause was entitled to
attorney’s fees because the fee provision of the contract was not limited to prevailing on a final
resolution on the merits (emphasis in original)).
The relevant portion of the fee provision in the Employment Agreement provides: “If
[Copiers NW] obtains a final judgment in a court of competent jurisdiction against [Johnson],
[Copiers NW] shall also be awarded its reasonable attorney’s fees and costs.” ECF 14 at 8
(Agreement ¶ 17(b)) (emphasis added). Copiers NW argues that this Court is not a court of
competent jurisdiction to hear Johnson’s wage claim, and this Court agrees based on the parties’
PAGE 16 – OPINION AND ORDER
forum selection clause. Thus, for purposes of that claim this Court is not one of competent
jurisdiction and its decision does not render “final” judgment. See Sharani v. Salviati & Santori,
Inc., 2008 WL 5411501, at *4 (N.D. Cal. Dec. 29, 2008) (“Defendant provides no authority for
the proposition that having determined that it has no jurisdiction and must dismiss the complaint
[under the forum selection clause], the Court may also give effect to the contract by awarding
attorney’s fees under the contract’s choice of law provision.”). The Court is dismissing
Johnson’s declaratory judgment claim not on the merits, but to avoid piecemeal litigation and the
possibility of inconsistent results. The Court dismisses the case without prejudice and with the
expectation that all of Johnson’s claims will be brought and resolved on the merits in King
County Superior Court. Thus, the Court is not rendering a “final judgment” in this case, and
attorney’s fees are therefore not appropriate at this time under the express terms of the
Employment Agreement. After final judgment is rendered in King County Superior Court, the
prevailing party may seek reasonable attorney’s fees under the Employment Agreement.
Copiers NW’s reliance on Ricciardi v. Frink, 133 Or. App. 436 (1995), is unavailing. In
Ricciardi, the attorney’s fee provision stated, similar to the fee provision in Jim Cooley, that the
prevailing party would be entitled to attorney’s fees for “any action or proceeding in Court to
enforce or interpret any provision” of the contract. Id. at 439 (emphasis added); see Jim Cooley,
46 F.3d 1151, at *1. The defendant was successful on a motion to dismiss based on a forum
selection clause. Ricciardi, 133 Or. App. at 439-40. The defendant was thus enforcing a
provision of the contract (the forum selection clause) and therefore entitled to attorney’s fees
under the plain meaning of the fee provision. Id. at 447 (“Defendant secured the dismissal of an
action for breach of contract by invoking, rather than disavowing, the terms of the contract on
which plaintiff sued. Accordingly, defendant, as the prevailing party in an action to ‘enforce or
PAGE 17 – OPINION AND ORDER
interpret any provision’ of the loan agreement, was entitled to recover its reasonably incurred
attorney fees.”). As discussed above, the fee provision in the Employment Agreement does not
contain similar text. Thus, based on the plain meaning of the fee provision at issue in this case,
NW Copiers is not yet entitled to recover its attorney’s fees, notwithstanding its success on its
motion to dismiss.
At oral argument, Copiers NW also asserted that it is entitled to attorney’s fees for
succeeding on its motion to dismiss based on Oregon’s reciprocal attorney’s fees statute, separate
and apart from the Employment Agreement. Oregon’s reciprocal attorney’s fees statute,
however, is not an independent ground for attorney’s fees divorced from an underlying contract.
It merely provides that if there is a one-sided fee provision in a contract that provides for
attorney’s fees, then, if only one party prevails, any other party to the contract also may be
entitled to recover fees if that party prevails. See Or. Rev. Stat. § 20.096(1) (“In any action or
suit in which a claim is made based on a contract that specifically provides that attorney fees and
costs incurred to enforce the provisions of the contract shall be awarded to one of the parties, the
party that prevails on the claim shall be entitled to reasonable attorney fees in addition to costs
and disbursements, without regard to whether the prevailing party is the party specified in the
contract and without regard to whether the prevailing party is a party to the contract.”). Thus, the
basis for the fees remains the underlying contract, and Oregon law merely provides that the right
to recover prevailing party fees under a contract may not be one-sided. The statute does not
otherwise broaden the terms or conditions under which attorney’s fees may be recovered under a
contract; it merely broadens the set of parties to whom fees eventually may be awarded.
Accordingly, this statute does not provide NW Copiers with a basis to receive attorney’s fees
when the Employment Agreement does not provide such a basis.
PAGE 18 – OPINION AND ORDER
Moreover, NW Copiers may not benefit from Oregon’s reciprocal fee statute for the fee
provision at issue in this case. The Employment Agreement already contains a one-sided fee
provision that solely benefits NW Copiers. It is Johnson who is afforded the right to invoke
Oregon’s reciprocal fee statute to be eligible for fees, if he were to prevail. NW Copiers is
already eligible to recover attorney fees by the terms of the contractual fee provision, but only
under the circumstances directed by that provision. Thus, Oregon’s reciprocal fee statute is
irrelevant to NW Copiers’ claim for attorney’s fees under the Employment Agreement.
Johnson and Copiers NW are parties to a valid and enforceable forum-selection clause
that is applicable to Johnson’s claim for unpaid wages. That claim should be heard in state court
in King County, Washington. Further, the Court declines to accept jurisdiction over Johnson’s
declaratory judgment claim while another claim implicating similar subject matter is pending in
Washington. Accordingly, the Court GRANTS Copiers NW’s Motion to Dismiss on the doctrine
of forum non conveniens. ECF 12. This case is dismissed without prejudice. The Court also
denies Copiers NW’s request for attorney fees.
IT IS SO ORDERED.
DATED this 12th day of May, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 19 – OPINION AND ORDER
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