NORTH AMERICAN COMMUNICATIONS, INC. v. HERMAN

Filing 30

MEMORANDUM OPINION AND ORDER denying 15 Motion to Dismiss, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 1/25/2018. (krh)

IN THE UNITED ST A TES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
NORTH AMERICAN
COMMUNICATIONS, INC.,

)

)

CIVIL ACTION NO. 3:17-157

)

Plaintiff,

)

)

v.

JUDGE KIM R. GIBSON

)
)
)

MICHAEL HERMAN,

)

)

Defendant.

)

MEMORANDUM OPINION
I.

Introduction
Pending before the Court is Defendant Michael Herman's Motion to Dismiss the

Amended Complaint under Rule 12(b)(3) and Motion to Strike under Rule 12(£) (ECF No. 15).
The motions have been fully briefed (see ECF Nos. 16, 23, 24) and are ripe for disposition. For
the reasons that follow, the Court will deny Herman's motions.

II.

Jurisdiction
The Court has subject-matter jurisdiction because the parties are diverse and the amount

in controversy exceeds $75,000. 28 U.S.C. § 1332. Venue is proper under 28 U.S.C. § 1391(b)
because a substantial portion of the events giving rise to Plaintiff's claims occurred in the
Western District of Pennsylvania.

III.

Background
A.

Factual Background1

This case arises from Plaintiff Michael Herman's retirement agreement with Defendant
North American Communications, Inc. ("NAC"). NAC, located in Duncansville, Pennsylvania,
is "the nation's largest vertically integrated direct mail and fulfillment company" and provides
"direct mail services" such as envelopes, printing, bindery, and mailing. (ECF No. 12 at <JI 7.)
Before retiring from NAC, Herman owned fifty percent of NAC's stock, served on NAC's board
of directors, and was an officer of NAC. (ECF No. 12 at <JI 9.)
On June 21, 2013, Herman executed a retirement agreement with NAC. (Id. at <JI 13.)
Herman negotiated the agreement in Pennsylvania, including at his attorney's office in
Philadelphia. (Id. at <JI 12.) Under the agreement, NAC must pay Herman $130,000 per year for
10 years, subject to certain conditions specified in the agreement. (Id. at <JI 15.)
Two of those conditions are at issue in this case: the non-compete clause and the nonsolicitation clause. The non-compete clause provides that Herman "shall not ... directly or
indirectly ... engage in, or own, manage, operate or control, or participate in the ownership,
management, operation, or control of, any entity that engages in any business activity that
[NAC] or any of its Affiliates has conducted ... ". (Id. at <JI 19.) The non-solicitation clause
provides that Herman "shall not, directly or indirectly, on his own behalf or on behalf of any
other person, firm, partnership, corporation, or other entity, contact, solicit, employ, interfere
with, attempt to entice away from [NAC] or any of its Affiliates, any individual" who is
1 The facts contained in this section are derived from NAC's Amended Complaint (ECF No. 12), unless
otherwise indicated. The Court considers these facts as true for the sole purpose of deciding the pending
motions.
2

employed by NAC or has been employed by NAC within 3 months of any solicitation. (Id.

at~

20.) The non-compete clause and the non-solicitation clause remain in force until the third
anniversary of the last installment Herman receives under the agreement. 2 (Id.

at~

19.)

The retirement agreement contains a forum selection clause which provides that the
United States District Court for the Middle District of Pennsylvania shall have "exclusiv[e]"
jurisdiction over "any controversy, dispute, or claim arising out of or relating to" the
agreement. (ECF No. 12-1at5.)
In 2016, Herman and two other partners founded !FM.US, LLC ("IFM"), a Delaware
corporation with its principal place of business in New Jersey. (Id.
and fulfillment company that "competes with NAC." (Id. at
CE0. 3 (Id.

at~

~

at~

26.) IFM is a direct mail

25.) Herman serves as IFM's

30.) Herman invested $15,000 cash in IFM to finance IFM's purchase of a printer

and to cover IFM' s payroll expenses. (Id.) Herman also represented IFM in visits to Fry
Communications on at least three occasions in 2016 and conducted business on behalf of IFM
using an IFM email account. (Id.)
Herman "utilized the services of his former secretary at NAC, Susan Bender, in
connection with his participation in IFM." (Id.

at~

32.) At Herman's request, Bender-a NAC

employee-corresponded with IFM's counsel, submitted an invoice to IFM for Herman's travel
expenses incurred during his business trips to Fry Communications, and transferred Herman's

Since 2015, Herman's severance agreement has been subject to a subordination agreement between
Herman, NAC, and Alostar Bank, but the subordination agreement does not alter any of the rights or
obligations owed under the severance agreement. (Id. at 'II'II 22-23.)
3 The Court notes that Herman filed an affidavit by Manny Ortiz, who states that he is in charge of the
day-to-day operations of IFM and who attests that Herman is neither IFM's CEO nor manages, controls,
or operates IFM's daily operations. (See ECF No 16-2 at 2.)
2

3

$15,000 investment to IFM's bank account. (Id. at 1I 33.) Ms. Bender performed these actions in
the Western District of Pennsylvania, where she lives and works. (Id. at <J.[ 34.)
On February 9, 2017, Herman emailed Ms. Bender and offered her a job at IFM. (Id. at
37.) Herman followed up his email with a telephone call. (Id. at

<J.[

<J.[

40.) Ms. Herman was in the

Western District of Pennsylvania when she received Herman's email and telephone call. (Id.)
Herman successfully persuaded his son, Michael R. Herman, to resign from NAC and
work for Herman at IFM. (Id. at

<J.[<J.[

42-48.) Herman spoke with Michael about leaving NAC

during in-person conversations at a house that Herman owns located in Hollidaysburg,
Pennsylvania. 4 (Id. at

<J.[

45.) On April 6, 2017, Michael resigned from IFM, effective April 13,

2017. (Id. at 1I 47.) IFM subsequently hired Michael who, by May 2017, conducted business on
IFM's behalf using an IFM email account. (Id. at <J.[ 49.)

B.

Procedural Background

On August 29, 2017, NAC filed its Complaint against Herman before this Court. (ECF
No. 1.) NAC filed an Amended Complaint on November 20, 2017. (ECF No. 12.) NAC asks that
this Court enter a declaratory judgment that Herman breached the retirement agreement and
that, as a result of Herman's breach, NAC is released from any future payment obligations to
Herman. (Id. at 1.)
4

The Court notes that for the last several years, Hyman has resided in San Diego, California. (ECF No. 161 at 2.) There is no indication that Herman intends to move back to Hollidaysburg. Accordingly, the fact
that Herman maintains a home in Hollidaysburg does not defeat diversity of citizenship because Herman
is domiciled in San Diego, California. See Washington v. Hovensa LLC, 652 F.3d 340, 344 (3d Cir. 2011)
(explaining that "[a] party's citizenship is determined by her domicile" and explaining that "the domicile
of an individual is his true, fixed and permanent home and place of habitation. It is the place to which,
whenever he is absent, he has the intention of returning.") (internal citations and quotation marks
omitted).

4

After NAC filed this case, Herman sued NAC in the Southern District of California for
breach of contract. (See ECF No. 16-3.) In that action, Herman alleges that NAC failed to pay
Herman the money he is owed under the same retirement agreement that NAC alleges that
Herman breached in the action before this Court. (ECF No. 24 at 16.)

IV.

Legal Standard
A.

Venue

"In federal court, venue questions are governed either by 28 U.S.C. § 1404(a) or 28 U.S.C.

§ 1406." Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995). Section 1406 "applies where
the original venue is improper and provides for either transfer or dismissal of the case." 5 Id.
Section 1404(a) "provides for the transfer of a case where both the original and the requested
venue are proper." Id. "The party moving for dismissal or transfer based upon improper venue
bears the burden of proof." Rabner v. Titelman, No. 15-1313, 2016 WL 1613444, at *4 (W.D. Pa.
Apr. 22, 2016) (citing Myers v. American Dental Ass'n, 695 F.2d 716, 724 (3d Cir. 1982) and

Cumberland Truck Equip. Co. v. Detroit Diesel Corp., 401 F. Supp. 2d 415, 418 (E.D. Pa. 2005));
Wozniak v. Johnston, No. CIV.A. 09-238, 2009 WL 1307459, at *2 (W.D. Pa. May 8, 2009) (same).
Under 28 U.S.C. § 1391(b)(2), venue is proper in "a judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred ... ". "[I]n determining whether
a substantial part of the events or omissions giving rise to a cause of action occurred in a specific
jurisdiction" under § 1391(b)(2), "[t]he test ... is not the defendant's contacts with a particular

The Third Circuit has stated that "[t]ransfer in lieu of dismissal is generally appropriate to avoid
penalizing plaintiffs by 'time-consuming and justice-defeating technicalities."' Bockman, 459 F. App'x at
162 (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962) (internal
quotation marks omitted)).

5

5

district, but rather the location of those events or omissions giving rise to the claim." 6 Bockman,
459 F. App'x at 161 (quoting Cottman Transmission Systems, Inc. v. Martino, 36 F.3d 291, 294 (3d
Cir. 1994) (internal quotation marks omitted)). "[I]n assessing whether events or omissions
giving rise to the claims are substantial, it is necessary to look at the nature of the dispute."

Prominent GmbH v. Prominent Sys., Inc., No. 2:16-CV-01609, 2017 WL 1316362, at *18 (W.D. Pa.
Apr. 10, 2017) (quoting Cottman Transmission Sys., 36 F.3d at 295); see Lorven Techs., Inc. v. Insight

Techs., Inc., No. CV167397FLWDEA, 2017 WL 2670971, at *3 (D.N.J. June 21, 2017).
In deciding a motion to dismiss for improper venue under Federal Rule of Civil
Procedure 12(b)(3), the Court must "accept as true all of the allegations in the complaint, unless
those allegations are contradicted by the defendant['s] affidavits." 7 Bockman, 459 F. App'x at 158
(internal citations omitted); see Rabner, 2016 WL 1613444, at *4 (articulating standard for
deciding a motion to dismiss for improper venue). But "[e]ven if it examines facts outside the
complaint to determine venue, the court ... must draw all reasonable inferences and resolve all
factual conflicts in the plaintiff's favor." Manning v. Flannery, No. CIV.A. 09-03190, 2010 WL
55295, at *4 (E.D. Pa. Jan. 6, 2010) (citing ProModel, 2007 WL 4124502, at *1); Lanard & Axilbund,

LLC v. Wolf, No. CIV.A. 14-0234, 2014 WL 4722702, at *2 (E.D. Pa. Sept. 23, 2014) (where
"Defendants ... have exercised their option to submit an affidavit in support of their motion [to

The Third Circuit has explained that "the venue provision 'favors the defendant ... by requiring that the
events or omissions supporting a claim be substantial"' because "[s]ubstantiality is intended to preserve
the element of fairness so that a defendant is not haled into a remote district having no real relationship
to the dispute."' Bockman, 459 F. App'x at 161 (quoting Martino, 36 F.3d at 295).
7 Indeed, parties "may submit supporting affidavits" to advance their arguments regarding whether
venue is proper. See, e.g., ProModel Corp. v. Story, No. CIV. 07-3735, 2007 WL 4124502, at *1 (E.D. Pa. Nov.
19, 2007).

6

6

dismiss for improper venue], and Plaintiff has responded in kind ... [the Court is] bound to
accept uncontradicted allegations in the complaint as true, and to resolve and construe disputed
facts in favor of the Plaintiff.") (internal citations omitted). Both Herman and NAC submitted
affidavits in support of their positions, and the Court has taken their affidavits into
consideration in accordance with the legal standards outlined above.

B.

Transfer of Venue

Even if venue is proper, the Court may still transfer the case in "the interest of justice ...
to any other district or division where it might have been brought or to any district or division
to which all parties have consented." 28 U.S.C. § 1404(a). When "ruling on a motion under §
1404(a), the court is free to consider 'all relevant factors,' and the Third Circuit directs district
courts to a list of certain private and public interest factors." Lannett Co. v. Asherman, No. CIV.A.
13-2006, 2014 WL 716699, at *6 (E.D. Pa. Feb. 24, 2014) (quoting Jumara, 55 F.3d at 879 (citing 15
Wright, Miller & Cooper, Federal Practice and Procedure:§ 3848 (2d ed.1986))).
"The private factors include (1) the plaintiff's forum preference; (2) the defendant's
preference; (3) whether the claim arose elsewhere; (4) the convenience as indicated by their
relative physical and financial condition; (5) the convenience of the witnesses; and (6) the
location of the books and records." Crayola, LLC v. Buckley, 179 F. Supp. 3d 473, 480 (E.D. Pa.
2016) (citing Jumara, 55 F.3d at 879).
"The public factors include (1) the enforceability of the judgment; (2) practical
considerations that could make trial easy, expeditious, or inexpensive; (3) the relative
administrative difficulty in the two fora resulting from court congestion; (4) the local interest in

7

deciding local controversies at home; (5) the public policies of the fora; and (6) the familiarity of
the trial judge with the applicable state law in diversity cases." Crayola, 179 F. Supp. 3d at 480
(citing Jumara, 55 F.3d at 879-90). 8
'"The above list of factors is merely a guide, and not all the factors may be relevant or
determinative in each case."' Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., No. CIV. A. 09-290,
2009 WL 3055300, at *2 (W.D. Pa. Sept. 21, 2009) (quoting LG Electronics, Inc. v. First Intern.

Computer, Inc., 138 F.Supp.2d 574, 587 (D.N.J., 2001)).
V.

Discussion: Motion to Dismiss
A.

The Court Will Deny Herman's Motion to Dismiss Because Venue is Proper in
the Western District of Pennsylvania

Herman contends that NAC's allegations are insufficient to establish venue in the
Western District of Pennsylvania. (ECF No. 16 at 10-11.) Specifically, Herman argues that
merely having email and telephone communications with Ms. Bender and Michael Herman do
not render venue proper in this district. (Id.)
In response, NAC asserts that venue is proper in the Western District of Pennsylvania
because NAC has alleged that Herman solicited Ms. Bender and Michael Herman while they
were present in the district, and because Herman utilized Ms. Bender's services while she was
working for NAC within the district. (ECF No. 24 at 8-13.)

See, e.g., Am. Envtl. Servs., Inc. v. Metalworking Lubricants Co., 634 F. Supp. 2d 568, 574 (W.D. Pa. 2009)
(listing private and public factors); Conroy v. Pennsylvania Tpk. Comm'n, No. CIV.A. 10-1234, 2011 WL
578779, at *1 (W.D. Pa. Jan. 19, 2011) (same); Klingensmith v. Paradise Shops, Inc., No. CIV.A. 07-322, 2007
WL 2071677, at *2 (W.D. Pa. July 17, 2007) (same); Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., No.
CIV. A. 09-290, 2009 WL 3055300, at *1 (W.D. Pa. Sept. 21, 2009).

8

8

"'In determining proper venue for a contractual dispute, the primary factors to be
considered are 'where the contract was to be negotiated or executed, where the contract was to
be performed, and where the alleged breach occurred."' Wall v. Corona Capital, LLC, 221 F. Supp.
3d 652, 657-58 (W.D. Pa. 2016) (quoting Whipstock Natural Gas Services, LLC v. Trans Energy, Inc.,
No. 08-1084, 2008 WL 4287158 at *3 (W.D. Pa. Sept. 17, 2008) (internal citations omitted);

Ferratex, Inc. v. U.S. Sewer & Drain, Inc., 121 F. Supp. 3d 432, 440 (D.N.J. 2015) (stating same
factors); Stalwart Capital, LLC v. Warren St. Partners, LLC, No. CIV. 11-5249 JLL, 2012 WL
1533637, at *4 (D.N.J. Apr. 30, 2012) (same); Leone v. Cataldo, 574 F. Supp. 2d 471, 484 (E.D. Pa.
2008) (same).
The Court finds that venue is proper in the Western District of Pennsylvania. This is a
breach of contract dispute. NAC alleges that Herman violated the terms of his retirement
agreement by, among other things, soliciting NAC employees to work for him at IFM. These
alleged breaches occurred in the Western District of Pennsylvania.
Specifically, NAC alleges that Herman solicited Ms. Bender while she was working for
NAC in Duncansville (ECF No. 12 at 11 38), which is within this judicial district. Furthermore,
Ms. Bender affirms in an affidavit that she was at work in Duncansville when she (1) received,
read, and responded to Herman's email asking her to work for IFM and (2) spoke to Herman by
phone about her working for IFM. 9 (ECF No. 24-1 at 1111 8-10.) NAC also alleges that Herman

The Court notes that Herman filed his own affidavit in which he affirms that he "never solicited Ms.
Bender to become an employee of IFM." (ECF No 16-1 at 'JI 8.) NAC filed a competing affidavit in which
Ms. Bender affirms that Herman asked her to work for Herman and his business partner, Manny Ortiz, at
IFM. (ECF No. 24-1.) Ms. Bender states that Herman offered her employment at IFM via email on
February 9, 2017, and via a follow-up phone call later that day. (Id.) NAC also filed a copy of the email
exchange between Herman and Ms. Bender. (ECF No. 24-1at5-6.) At this stage, the Court accepts NAC's

9

9

interfered with NAC by utilizing the services of Ms. Bender after Herman retired, and that Ms.
Bender performed these services within this judicial district. (ECF No. 12 at <[<[ 33-34.)
Additionally, Herman admits in his affidavit that he and his son Michael Herman had "a few"
discussions about leaving NAC to work at IFM while father and son were visiting the family
home in Hollidaysburg, Pennsylvania. (ECF No. 16-1 at 2.) Hollidaysburg is also within this
judicial district. Because this is a breach of contract dispute and because NAC alleges that
Herman solicited NAC employees in violation of his retirement agreement within the Western
District of Pennsylvania, the Court easily finds that venue is proper in this district.
To support his argument that venue is improper in the Western District of Pennsylvania,
Herman emphasizes the alleged breach of the non-compete clause rather than the alleged
breaches of the non-solicitation clause. (See, generally, ECF No. 16 at 9-13.) Herman has a pointIFM is a Delaware corporation with its principal place of business in New Jersey, and the
Amended Complaint's only allegations pertaining to this judicial district are NAC' s claims that
Herman solicited NAC employees while they were present in this district. But Herman ignores
the fact that the solicitation allegations, if proven, are themselves sufficient to establish breach
under the contract's non-solicitation clause. 10 Therefore, venue is proper in this district
regardless of where the activities took place that allegedly violated the non-compete provision.

version of events because it must "resolve all factual conflicts in the plaintiff's favor." Manning, 2010 WL
55295, at *4.
10 The Court observes that "in cases with multiple claims, the court must determine whether venue is
proper for each claim." Lorven, 2017 WL 2670971, at *3 (internal citations omitted). In this case there is
only one claim-breach of contract. While NAC asserts several factual bases for Herman's alleged breach,
such as Herman's soliciting Michael Herman and Ms. Bender in violation of the non-solicitation clause
and Herman's founding IFM in violation of the non-compete clause, NAC only asserts one claim against
Herman. Because NAC alleges that the violations of the non-solicitation agreement occurred in the

10

The cases

~hat

Herman cites to argue that venue is improper in this district are

inapposite. For instance, in CLP Packaging Sols., Inc. v. Sports Pouch Beverage Co., No. CIV.A. 071532 (SDW), 2008 WL 2095774, at *3 (D.N.J. May 16, 2008), the district court found venue
lacking in New Jersey when there were "no in person meetings" there. 11 Here, Herman admits
that he spoke with his son about leaving NAC to work at IFM while both men were present
within this district. Herman contends that he was merely giving "fatherly advice" (ECF No. 161 at 2), but Herman has not pointed to any clause in the retirement agreement that excepts
"fatherly conversations" from the contract's non-solicitation provision.
In conclusion, the Court finds that venue is proper in the Western District of
Pennsylvania. Accordingly, the Court will deny Herman's motion to dismiss based on improper
venue.

VI.

Discussion: Motion to Transfer
The Court will now consider Herman's motion to transfer venue. As venue is proper in

several districts, the Court will consider each potential district in turn using the various private
and public interest factors articulated by the Third Circuit in Jumara.

Western District of Pennsylvania, venue is proper in this judicial district, notwithstanding the fact that
the alleged violations of the non-compete did not occur here.
11 The Court notes that Stalwart Capital, LLC v. Warren St. Partners, LLC, No. CIV. 11-5249 JLL, 2012 WL
1533637, at *5 (D.N.J. Apr. 30, 2012) is similarly inapposite. In that breach of contract case, the district
court found venue lacking in New Jersey because the breach and the only in-person negotiation took
place in Virginia, not New Jersey. As discussed above, the alleged breaches here case occurred in several
judicial districts, one of which is the Western District of Pennsylvania.

11

A.

The Court Will Not Transfer this Case to the Southern District of California
Because the Private and Public Factors Weigh Against Transfer

Herman next asks this Court to transfer this case to the Southern District of California.
(ECF No. 16 at 13-14.) To support his argument, Herman argues that this case could have
originally been brought in the Southern District of California because that is the judicial district
in which Herman resides. (Id. at 13.) Herman also argues that transferring to the Southern
District of California would serve the interests of justice because that district is where Herman's
breach of contract case against NAC is pending. (Id.)
In response, NAC argues that Herman has failed to satisfy his burden to establish that a
transfer of venue is proper. (ECF No. 24 at 13-15.) NAC emphasizes that the events giving rise
to the lawsuit occurred in this district, not in the Southern District of California. (Id. at 13-14.)
NAC asserts that the private and public interest factors weight against transfer, and contends
that because Herman keeps a house within this district, this district is more convenient for the
parties and witnesses. (Id. at 14-15.)
Defendant has not met his burden to establish that transfer to the Southern District of
California serves the interests of justice. The only private factor that supports transfer to the
Southern District of California is defendant's forum preference. See Jumara, 55 F.3d at 879. Four
of the private factors weigh against transfer: (1) plaintiff's forum preference, as NAC sued
Herman in this district; (2) whether the claim arose elsewhere, because the alleged solicitations
occurred in this district and the alleged breaches of the non-compete clause occurred in the
Eastern District of Pennsylvania, Delaware, and New Jersey; (3) the convenience of the parties,
because NAC's principal place of business is within this district and Herman maintains a house

12

here; and (4) the convenience of the witnesses, as Ms. Bender and other NAC employees reside
in this district. Id. The final private factor (location of books and records) is neutral. Given that
four of five applicable private factors weigh against transfer, the Court easily finds that Herman
has failed to meet his burden.
The public factors similarly fail to support transfer to the Southern District of California.
The only public factor that might favor transfer to that district is "practical considerations that
could make trial easy, expeditious, or inexpensive," and only because Herman responded to
NAC's suit before this Court by suing NAC for breach of contract in the Southern District of
California. However, at the time the parties filed their briefs before this Court, NAC's motion to
dismiss or transfer Herman's action was pending before the Southern District of California. (See
ECF No. 24 at 8.) If the Southern District of California dismissed or transferred Herman's case
against NAC, the only public factor weighing towards transfer from this district would be
eliminated.
In conclusion, the Court finds that Herman has failed to meet his burden to establish
that transferring this case to the Southern District of California would serve the interests of
justice. Accordingly, the Court will deny Herman's motion to transfer the case to the Southern
District of California.
B.

The Court Will Not Transfer this Case to the Middle District of Pennsylvania
Because the Parties Have Waived Their Rights to Enforce the Forum-Selection
Clause and Because the Private and Public Interests Weigh Against Transfer

Herman next asks this Court to transfer the case to the Middle District of Pennsylvania
pursuant to the forum-selection clause in the retirement agreement. (ECF No. 16 at 14-15.) In
13

response, NAC contends that Herman waived his right to enforce the forum-selection clause by
filing his suit against NAC in the Southern District of California. (ECF No. 24 at 16-17.)
"[V]enue objections are waivable, even when premised on a forum-selection clause ... ".
In re: Howmedica Osteonics Corp, 867 F.3d 390, 407 (3d Cir. 2017). See MTR Gaming Grp., Inc. v.
Arneault, 899 F. Supp. 2d 367, 375 (W.D. Pa. 2012) (observing that "[w]hen a party chooses to file

suit upon a contract in an unauthorized venue in direct contravention to the contract's forum
selection clause, it is not surprising that courts would infer the party's abandonment of its rights
under the forum selection provision.").
The Court finds that both parties waived their ability to enforce the forum-selection
clause. Herman's retirement contract provided for exclusive jurisdiction in the Middle District
of Pennsylvania. (ECF No. 12-1 at 5.) Herman waived the right to enforce the forum-selection
clause when he sued NAC in the Southern District of California. NAC waived its ability to
enforce the forum-selection clause when it filed its case before this Court. Therefore, both
parties waived their ability to enforce the forum-selection clause's provision providing for
exclusive jurisdiction in the Middle District of Pennsylvania.
Herman simultaneously argues (1) that this Court should find that NAC waived its
ability to enforce the forum-selection clause by suing Herman in the Western District of
Pennsylvania and (2) that, in the alternative to outright dismissal or transfer to the Southern
District of California, this Court should transfer this case to the Middle District of Pennsylvania
under the forum-selection clause. However, Herman fails to appreciate the fact that, under his

14

argument, he has also waived his ability to enforce the forum-selection clause because he filed
his case against NAC in the Southern District of California.
Even though both parties waived their ability to enforce the forum-selection clause, the
Court could still transfer the case to the Middle District if it could have originally been filed
there and if transfer serves the interests of justice. 28 U.S.C. § 1404(a). The Court finds that
venue is proper in the Middle District because "a substantial part of the events or omissions
giving rise to the claim occurred" there, 28 U.S.C. § 1391(b)(2); NAC alleges that Herman
violated the non-compete provision by traveling to Frye Communications on behalf of IFM on
three occasions (ECF No. 12 at 6), and it appears from Herman's briefing that Frye is located in
the Middle District of Pennsylvania. (ECF No. 16 at 10.) Accordingly, venue is proper in the
Middle District and this Court can transfer the case there if it is in the interest of justice.
The Court finds that it would not be in the interest of justice to transfer this case to the
Middle District of Pennsylvania. Three of the private interest factors strongly weigh against
transfer; (1) the plaintiff's forum preference, as NAC sued in the Western District of
Pennsylvania; (2) convenience of the parties, because Herman has a house in the Western
District and NAC's principal place of business is within the Western District; and (3) the
convenience of the witnesses, because Ms. Bender and the other NAC employees are located in
the Western District. The only private favor that clearly favors transfer is "defendant's
preference," but the importance of this factor is reduced by the fact that the Middle District of
Pennsylvania is Herman's second choice of venue after the Southern District of California.
"Whether the claim arose elsewhere" is neutral because, as discussed supra, Herman allegedly

15

committed acts that constituted breach in several districts. The final private factor, "location of
the books and records," is inapplicable. Thus, three of the six private factors strongly weigh
towards transfer. One weighs slightly towards transfer. And the other two are neutral.
Additionally, the Court finds that none of the six public factors weigh towards transfer
to the Middle District. 12
Because the Court finds that the private and public factors weigh strongly against
transfer to the Middle District, transferring the case to the Middle District would not serve the
interests of justice. 28 U.S.C. § 1404(a). Accordingly, the Court will deny Herman's motion to
transfer the case to the Middle District of Pennsylvania.
C.

The Court Will Not Transfer this Case to Other Potential Districts 13

The Court notes that venue appears to be proper in at least three other judicial districts:
(1) the Eastern District of Pennsylvania (where Herman· allegedly negotiated the retirement
agreement) (ECF No. 12 at ':[ 12)); (2) the District of Delaware (under whose laws IFM is
allegedly organized) (id. at':[ 29); and (3) the District of New Jersey (where IFM allegedly has its
principal place of business) (id at':[ 26)). The Court finds that it would not be in the interests of
justice to transfer to any of these districts because none of the parties are located in any of these

As noted above, the public interest factors are:
(1) the enforceability of the judgment; (2) practical considerations that could make trial
easy, expeditious, or inexpensive; (3) the relative administrative difficulty in the two fora
resulting from court congestion; (4) the local interest in deciding local controversies at
home; (5) the public policies of the fora; and (6) the familiarity of the trial judge with the
applicable state law in diversity cases.
Crayola, 179 F. Supp. 3d at 480 (citing ]umara, 55 F.3d at 879-90).
13 Herman has not asked the Court to transfer the case to any of these districts and neither side has briefed
whether the case should be transferred to these districts.
12

16

districts. Accordingly, the Court will not transfer the case to any of these districts. 28 U.S.C. §
1404(a).

D. Conclusion: The Court Will Deny Herman's Motion to Transfer Because
Transferring the Case Would Not Serve the Interests of Justice
Venue is proper in the Western District of Pennsylvania. Moreover, transferring to the
other districts in which venue is proper would not serve the interests of justice. Accordingly, the
Court will deny Herman's motion to transfer venue.

VII.

Discussion: Motion to Strike
A.

The Court Will Deny Herman's Motion to Strike

Finally, Herman moves to strike three paragraphs from NAC' s Amended Complaint.

(See ECF No. 16 at 15-17.) Specifically, Herman objects to paragraphs 10, 11, and 14, which
allege that Herman left his employment NAC because of an IRS investigation that resulted in
Herman pleading guilty to filing a false tax return. (See ECF No. 12 at <j[<j[ 10, 11, 14.) Herman
asserts that the IRS investigation is irrelevant to this breach of contract case. (ECF No. 16 at 15.)
In response, NAC argues that these paragraphs contain useful background information that
elucidates why Herman left NAC and entered into the retirement agreement.
Under Federal Rule of Civil Procedure 12(f), courts may "strike from a pleading ... any
redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f); see Berezansky

v. CBN Bank, Case No. 3:17-cv-105, 2018 WL 461245, at *2 (W.D. Pa. Jan. 17, 2018) (Gibson, J.)
(citing Nelson v. Bender, No. 3:15-64, 2015 WL 8207490, at *4 (W.D. Pa. Dec. 7, 2015)). The
purpose of a motion to strike "is to clean up the pleadings, streamline litigation, and avoid
unnecessary forays into immaterial matters." Hay v. Somerset Area Sch. Dist., No. 3:16-CV-229,
17

2017 WL 2829700, at *3 (W.D. Pa. June 29, 2017) (Gibson, J.) (quoting Tennis v. Ford Motor Co.,
730 F. Supp. 2d 437, 443 (W.D. Pa. 2010)); see also Brugh v. Mount Aloysius College, Case No. 3:17cv-71, 2017 WL 5634984, at *9 (W.D. Pa. Nov. 21, 2017) (Gibson, J.).
Motions to strike "'are not favored and usually will be denied unless the allegations
have no possible relation to the controversy and may cause prejudice to one of the parties, or if
the allegations confuse the issues in the case."' Hay, 2017 WL 2829700, at *3 (quoting Tennis, 730
F. Supp. 2d at 443) (internal citations omitted); see Bender, 2015 WL 8207490, at *9 ("The standard
for striking under Rule 12(£) is strict and only allegations that are so unrelated to plaintiff's
claims as to be unworthy of any consideration should be stricken. Striking a pleading is a
drastic remedy to be resorted to only when required for the purposes of justice.") (quoting

Johnson v. Anhorn, 334 F. Supp. 2d 802, 809 (E.D. Pa. 2004)) (internal quotations and citations
omitted).
The Court will deny Herman's motion to strike. The Court agrees with Herman that the
circumstances surrounding Herman's signing the retirement agreement bear little relevance to
whether or not Herman breached that agreement. However, the Court agrees with NAC that
these paragraphs contain background information that helps contextualize the circumstances
surrounding his departure from NAC. Thus, the challenged paragraphs do have a relation to
the controversy. Moreover, the Court does not believe that Herman will be prejudiced by
paragraphs 10, 11, and 14. This is especially true "in light of the fact that pleadings ... are not
read to jurors." Lifetouch Nat'l Sch. Studios Inc. v. Roles, No. 3:15-CV-234, 2016 WL 3440620, at *2
(W.D. Pa. June 20, 2016) (Gibson, J.) (denying motion to strike) (citing Ratvasky v. Citizens

18

National Bank, 2005 WL 3289343, at *2 (W.D. Pa. Dec. 5, 2005)). Therefore, the Court will deny
Herman's motion to strike.

VIII.

Conclusion
The Court will deny Herman's motion to dismiss under Federal Rule of Civil Procedure

12(b)(3) because venue is proper in the Western District of Pennsylvania. The Court will also
dismiss Herman's motion to transfer venue because the Court finds that it would not be in the
interests of justice to do so. Finally, the Court will deny Herman's motion to strike because the
Court finds that the challenged paragraphs have a relation to the controversy and that Herman
will not suffer prejudice as a result of their inclusion in the Amended Complaint.
An appropriate order follows.

19

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
NORTH AMERICAN
COMMUNICATIONS, INC.,
Plaintiff,

)

) CIVIL ACTION NO. 3:17-157
)

) JUDGE KIM R. GIBSON

v.

)

)

MICHAEL HERMAN,

)

)
)

Defendant.

)

ORDER
NOW, this 2rlay of January, 2018, upon consideration of Defendants' Motion to Dismiss
the Amended Complaint Under Rule 12(b)(3) and Motion to Strike Under Rule 12(£) (ECF No.
15), and for the reasons set forth in the accompanying Memorandum Opinion, it is HEREBY
ORDERED that said Motion is DENIED.

BY THE COURT:

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE