Ruff v. Strategic Contract Brands Inc

Filing 30

ORDER and OPINION denying 4 Motion to Dismiss for Lack of Jurisdiction; denying 4 Motion to Transfer Case. Signed by Honorable Bruce Howe Hendricks on 8/12/16.(alew, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
)
Civil Action No.: 6:15-cv-5004-BHH
)
Plaintiff, )
)
)
vs.
ORDER AND OPINION
)
)
)
Strategic Contract Brands, Inc., d/b/a
)
Automotive Facilities and AutoStone
)
Floor Systems
)
Defendant. )
______________________________ )
Kristine M. (“Kristy”) Ruff,

This matter is before the Court on Defendant’s motion to dismiss or, in the
alternative, to transfer venue. (ECF No. 4.) For the reasons set forth below, the motion is
DENIED.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Kristine M. Ruff (“Plaintiff”), a resident of South Carolina, is a former
employee of Defendant Strategic Contract Brands, Inc. (“Defendant”), a corporation
organized and existing pursuant to the laws of Texas, with its principal place of business
in Dallas County, Texas. (Compl. No. 1-1 ¶ 2.) Plaintiff began working for Defendant on
or about December 3, 2013 as its National Sales Manager and South East Regional
Account Manager on a salary plus commission basis—she entered into a written
Employment Agreement with Defendant on January 3, 2014. (Id. ¶ 5–7; ECF No. 4-3.)
The Employment Agreement contains a choice of law and forum selection clause stating:
“This Agreement is drawn to be effective in and shall be construed in accordance with

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the laws of the state of Texas. Venue for any dispute arising out of or in any way related
to this Agreement shall be in a court of competent jurisdiction in Dallas County, Texas.”
(ECF No. 4-3 at 7.)
According to Plaintiff, “Defendant unilaterally attempted to change Plaintiff’s
commission structure approximately six times throughout the course of her employment
with Defendant, in an effort to reduce Plaintiff’s commissions, without providing
advanced, written notice of changes.” (Compl. ¶ 9.) Plaintiff alleges that after she
complained about these changes in the fall of 2014, Defendant’s executives made
various promises regarding her base salary and commissions to convince her not to
leave Defendant’s employment. (Id. ¶ 12.) Plaintiff further alleges she turned down
another job opportunity based on these promises. (Id.) She alleges that Defendant’s
executives did not follow through with their promises, however, so she again voiced her
concerns in the summer and fall of 2015. (Id. ¶ 13.) According to Plaintiff, she was
terminated by a letter dated October 2, 2015, without cause and without any advance
notice. (Id. ¶ 14.) Plaintiff filed this action against Defendant on November 5, 2015,
bringing claims for violation of the South Carolina Payment of Wages Act (“SCPWA”),
breach of contract, wrongful discharge in violation of public policy, promissory estoppel,
equitable accounting, and fraud/fraud in the inducement.
On or about December 18, 2015, Defendant filed an action against Plaintiff in the
District Court for Dallas County, Texas, alleging breach of contract. Strategic Contract
Brands, Inc. d/b/a Automotive Facilities and AutoStone Floor Systems v. Kristine M.
(“Kristy”) Ruff, Case No. DC-15-15252, which was filed in the 134th Judicial District

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Court, Dallas County, Texas, on December 18, 2015. After removing the case to federal
court, Plaintiff moved to dismiss the action for lack of personal jurisdiction and for
improper venue. On May 16, 2016, the United States District Court for the Northern
District of Texas denied the motion and enforced the forum selection clause (“Texas
Order”). (ECF No. 25-2.)
On December 18, 2015, Defendant also moved to dismiss Plaintiff’s Complaint in
this Court, asserting that the United States District Court for the District of South Carolina
lacks personal jurisdiction in this case. (ECF No. 4-1 at 1.) In the alternative, Defendant
asks that the Court transfer venue in this case to the Northern District of Texas, the
forum the parties selected for litigation in the Employment Agreement. (Id.) Plaintiff filed
a response on January 7, 2015 (ECF No. 12), to which Defendant replied on February 8,
2016 (ECF No. 16). Defendant also filed a motion asking the Court to allow it to file the
above mentioned Texas Order on May 18, 2016. (ECF No. 25.) Plaintiff filed a response
on June 17, 2016 (ECF No. 26), to which Defendant replied on June 22, 2016 (ECF No.
27). The Court has reviewed the briefing and the applicable law, and now issues the
following ruling.
STANDARD OF REVIEW
A.

Personal Jurisdiction

When a court’s personal jurisdiction is challenged, the burden is on the plaintiff to
establish that a ground for jurisdiction exists. Combs v. Bakker, 886 F.2d 673, 676 (4th
Cir. 1989). When the court resolves the motion on written submissions (as opposed to an
evidentiary hearing), the plaintiff need only make a “prima facie showing of a sufficient

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jurisdictional basis.” Id. However, the plaintiff’s showing must be based on specific facts
set forth in the record. Magic Toyota, Inc. v. Southeast Toyota Distributors, Inc., 784 F.
Supp. 306, 310 (D.S.C. 1992). The court may consider the parties’ pleadings, affidavits,
and other supporting documents but must construe them “in the light most favorable to
plaintiff, drawing all inferences and resolving all factual disputes in his favor, and
assuming plaintiff’s credibility.” Sonoco Prods. Co. v. ACE INA Ins., 877 F. Supp. 2d 398,
404-05 (D.S.C. 2012) (internal quotations omitted); see also Carefirst of Maryland, Inc. v.
Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (“In deciding whether
the plaintiff has made the requisite showing, the court must take all disputed facts and
reasonable inferences in favor of the plaintiff.”). However, a court “need not credit
conclusory allegations or draw farfetched inferences.” Sonoco, 877 F. Supp. 2d at 205
(internal quotations omitted).
To meet his burden, Plaintiff must show (1) that the exercise of jurisdiction is
authorized by the long-arm statute of the state and (2) that the exercise of personal
jurisdiction complies with the constitutional due process requirements. E.g., Christian
Science Bd. Of Directors of First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215
(4th Cir. 2001). South Carolina has interpreted its long-arm statute to extend to the
constitutional limits of due process. See Southern Plastics Co. v. Southern Commerce
Bank, 423 S.E.2d 128, 130-31 (S.C. 1992). Thus, the first step is collapsed into the
second, and the only inquiry before the Court is whether the due process requirements
are met. ESAB Group, Inc. v. Centricut, LLC, 34 F. Supp. 2d 323, 328 (D.S.C. 1999).

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Due process requires that a defendant have sufficient “minimum contacts with [the
forum] such that the maintenance of the suit does not offend ‘traditional notions of fair
play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). This standard can be met in two
ways: “by finding specific jurisdiction based on conduct connected to the suit or by
finding general jurisdiction.” E.g., ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293
F.3d 707, 711-12 (4th Cir. 2002) (citing Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414 (1984)).
A court can assert general jurisdiction over business entities only when the
“continuous corporate operation within a state is thought so substantial and of such a
nature as to justify suit against it on causes of action arising from dealings entirely
distinct from those activities.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir.
1993); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846,
2853–54 (2011) (holding that the “paradigm forum for the exercise of general jurisdiction”
of a corporation is “one in which the corporation is fairly regarded as at home”). Thus,
general jurisdiction requires a showing that “the defendant’s activities in the state” were
“continuous and systematic.” Carefirst, 334 F.3d at 397 (quotation marks and citation
omitted).
To determine whether specific jurisdiction exists, the Court considers “(1) the
extent to which the defendant has purposefully availed itself of the privilege of
conducting activities in the state; (2) whether the plaintiffs’ claims arise out of those
activities directed at the state; and (3) whether the exercise of personal jurisdiction would

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be constitutionally ‘reasonable.’” Id. (citing ALS Scan, Inc. v. Digital Serv. Consultants,
Inc., 293 F.3d 707, 711–12 (4th Cir. 2002), cert. denied, 537 U.S. 1105 (2003)). This
three-part test is designed to protect a defendant from having to litigate a suit in a forum
where it should not have anticipated being sued. See Consulting Eng’rs Corp. v.
Geometric Ltd., 561 F.3d 273, 277–78 (4th Cir. 2009).
B.

Venue

Defendant moves to transfer this case to the District of Texas, Dallas Division,
pursuant to 28 U.S.C. § 1404(a). Section 1404(a) provides: “For the convenience of
parties and witnesses, in the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been brought.” Pursuant to 28
U.S.C. § 1391(a), a civil action wherein jurisdiction is founded only on diversity of
citizenship may, except as otherwise provided by law, be brought in (1) a judicial district
where any defendant resides, if all defendants reside in the same State, (2) a judicial
district in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated, or
(3) a judicial district in which any defendant is subject to personal jurisdiction at the time
the action is commenced, if there is no district in which the action may otherwise be
heard. Whether a case should be transferred to an alternative venue rests within the
sound discretion of the district court. In re Ralston Purina Co., 726 F.2d 1002, 1005 (4th
Cir. 1984).  

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DISCUSSION
A.

Specific Jurisdiction

Plaintiff asserts that Defendant is subject to specific personal jurisdiction under
the following provisions of the South Carolina long-arm statute:1
(1) transacting any business in this State;
(2) contracting to supply services or things in the State;
(3) commission of a tortious act in whole or in part in this State;
(4) causing tortious injury or death in this State by an act or omission
outside this State if he regularly does or solicits business, or engages in
any other persistent course of conduct, or derives substantial revenue from
goods used or consumed or services rendered, in this State;
...

(7) entry into a contract to be performed in whole or in part by either party
in this State;
S.C. Code Ann. § 36–2–803. Importantly, “[w]hen jurisdiction over a person is based
solely upon this section, only a cause of action arising from acts enumerated in this
section may be asserted against him.” S.C. Code Ann. § 36-2-803(B). As previously
stated, South Carolina’s long-arm statute is construed to extend jurisdiction over
nonresident defendants to the full extent permitted by the Due Process Clause. See
Southern Plastics Co., 423 S.E.2d at 130–31.
Here, the Court must examine three factors to determine whether specific
jurisdiction is appropriate: First, to what extent did Defendant “purposefully avail” itself of
the privileges of conducting activities in South Carolina and thus invoke the benefits and
protections of its laws; second, did Plaintiff’s claims arise out of those South Carolina                                                                 
1
Plaintiff provides no argument for the existence of general personal jurisdiction.

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related activities; and, finally, is the exercise of jurisdiction constitutionally “reasonable.” 
Carefirst, 334 F.3d at 397.
In arguing for specific jurisdiction, Plaintiff alleges that: (1) Defendant is registered
as a corporation in South Carolina with a designated agent for service of process; (2)
Defendant recruited a South Carolina resident to be an employee; (3) Defendant mailed
the original engagement letter and the Employment Agreement to Plaintiff’s home in
South Carolina; (4) Defendant provided Plaintiff with equipment so that she could
establish a home office in Greenville, South Carolina; (5) Plaintiff’s primary sales territory
included South Carolina; (6) Defendant did over $270,000 worth of business in South
Carolina in a three year period, “much of it sold directly by Plaintiff”; and (7) Defendant
mailed the termination letter to Plaintiff’s home in South Carolina. (Id. at 6–9.) Plaintiff
contends that these contacts establish specific jurisdiction under S.C. Code Ann. § 36–
2–803 (1), (2), (3), (4), (7).
Defendant responds that none of these alleged contacts are “substantial” and that
they do not form the basis of any of Plaintiff’s claims. (ECF No. 16 at 1–2.) Specifically, it
asserts that “[o]f the approximately $10 Million in annual sales by [Defendant], only 4
sales—one each in 2012 and 2013, and two in 2014—have come from South Carolina.”
(ECF No. 4-1 at 2–3.) According to Defendant, Plaintiff is responsible for only two of
those sales, “both in 2014, for a total of just over $134,000. This amounted to about 1%
of [Defendant’s] total sales.” (Id. at 3.) Defendant asserts that there were no sales in
South Carolina in 2015. (Id.) Defendant also states that it does not advertise in South
Carolina and does not own any property in the state. (Id.) Defendant contends that this

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case “is essentially a claim for unpaid, or underpaid, commissions, and that there is no
connection between South Carolina and the sales on which Plaintiff claims to have been
underpaid commissions.” (ECF No. 16 at 2.) Finally, Defendant argues that the fact it is
licensed to do business in South Carolina, without more, is insufficient to establish
personal jurisdiction. (Id.)
Here, the Court agrees with Plaintiff that Defendant entered into a contract, i.e.
the Employment Agreement, to be performed in whole or in part by Plaintiff in South
Carolina, and, therefore, finds that S.C. Code Ann. § 36–2–803(7) confers jurisdiction
over Defendant. In so finding, the Court is mindful that “[a] contract with a resident of a
forum state does not automatically constitute sufficient contacts to support the forum’s
assertion of specific jurisdiction, even where the dispute arises from the contract.” Le
Bleu Corp. v. Standard Capital Grp., Inc., 11 Fed. App’x. 377, 380 (4th Cir. 2001) (citing
Burger King, 471 U.S. at 478); Pan–American Prods. & Holdings, LLC v. R.T.G.
Furniture Corp., 825 F. Supp. 2d 664, 681 (M.D.N.C. 2011); Burlington Indus., Inc. v.
Yanoor Corp., 178 F. Supp. 2d 562, 567 (M.D.N.C. 2001). Here, however, the contract
has a “substantial connection with” South Carolina such that the “quality and nature” of
Defendant’s relationship to the forum “can in no sense be viewed as random, fortuitous,
or attenuated.” Burger King, 471 U.S. at 479–480 (citations omitted).
In looking to whether a defendant has purposefully availed itself of the protection
of the laws of the forum state, the Fourth Circuit “has given great weight to the question
of who initiated contact between the parties.” Worldwide Ins. Network, Inc. v. Trustway
Ins. Agencies, LLC, No. 1:04-CV-00906, 2006 WL 288422, at *5 (M.D.N.C. Feb. 6,

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2006); see also CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 295
n.17 (4th Cir. 2009) (“Pursuant to applicable precedent, we are entitled to accord special
weight to the fact that it was [the defendant] that initiated contact with [the plaintiff] in [the
forum state].” (citing Diamond Healthcare of Ohio, Inc. v. Humility of Mary Health
Partners, 229 F.3d 448, 451 (4th Cir. 2000))). According to Plaintiff, Defendant initiated
contact with Plaintiff in South Carolina, in an attempt to establish an employer-employee
relationship. (ECF No. 12-1 ¶ 6.) This relationship was solidified in the Employment
Agreement, which Plaintiff signed in South Carolina. (ECF No. 12 at 3.) Thus, the
contract was partially entered into in South Carolina. See S.C. Code Ann. 36-2-803(7).
Importantly, Plaintiff’s claims arise in part out of Defendant’s compliance with the terms
of the Employment Agreement regarding her base salary, commissions, and
employment benefits. (See ECF No. 1-1 ¶¶ 15-33); see also S.C. Code Ann. § 36-2803(B).
While Defendant asserts that Plaintiff “could have performed her job from
anywhere[,]” (ECF No. 4-1 at 7), Plaintiff’s allegations indicate that she was expected to
perform her job in part in South Carolina. For example, Defendant applied to register as
a corporation in South Carolina around the same time that it recruited Plaintiff.2 
Specifically, Defendant applied to register as a corporation in South Carolina on October
14, 2013, and Plaintiff alleges that Defendant’s owner, Barry Wells (“Wells”) recruited her

2
The Court agrees with Defendant that registering as a corporation in South Carolina, in and of itself, does
not necessarily establish personal jurisdiction. See Ratliff v. Cooper Labs., Inc., 444 F.2d 745, 748 (4th
Cir.1971) (“[T]he application to do business and the appointment of an agent for service to fulfill a state law
requirement is of no special weight . . . . Applying for the privilege of doing business is one thing, but the
actual exercise of that privilege is quite another.”); S.C. Code Ann. § 33–15–101, Reporter’s Comments §
2 (Rev. 1990) (“A corporation can be qualified to do business in South Carolina and have appointed an
agent for service of process but still not be conducting sufficient activities in South Carolina to be subject to
suit here.”). Here, however, the Court views this contact in the context of Plaintiff’s other allegations.

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in late October 2013. (ECF Nos. 12-1 ¶ 6; 12-2 at 2.) The timing of these two events
supports a finding that Defendant recruited Plaintiff with the expectation that she would
perform at least some work in South Carolina. Indeed, Plaintiff alleges that Defendant
“specifically sought out a South Carolina resident to become an employee.” (ECF No. 12
at 9.) In addition, Plaintiff’s job title under the Employment Agreement was AutoStone
National Sales Manager and Southeast Regional Sales Manager. (ECF No. 4-3 at 8.)
Thus, the Court concludes Defendant expected Plaintiff to at least partially perform her
work in the Southeast, including South Carolina. See S.C. Code Ann. § 36-2-803(7).
Also, Plaintiff actually did perform work in South Carolina—the parties agree that she is
responsible for at least two of the past four sales made in South Carolina. (ECF Nos. 4-1
at 3; 12 at 9.)
The above facts differentiate this matter from Le Bleu, the Fourth Circuit case
upon which Defendant heavily relies to refute the existence of specific personal
jurisdiction. (ECF No. 4-1 at 7–9.) In Le Bleu, the Fourth Circuit Court of Appeals
affirmed the district court’s finding that specific personal jurisdiction did not exist over the
California-based defendant in North Carolina where the plaintiff alleged that: (1) “the
parties exchanged some mail and telephone calls”; (2) “two visits were made to North
Carolina by defendant’s employees”; and (3) “a payment was mailed from North Carolina
and . . . the contract was signed in North Carolina.” Le Bleu Corp., 11 F. App’x at 380.
Notably, other than taking a draft of a memorandum to North Carolina for plaintiff’s
review, the defendant performed all of the work related to the contract in California—
there was no indication the parties intended Defendant to perform work under the

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contract in North Carolina. Id. at 379. Here, as explained above, Defendant’s contacts
with South Carolina were much more purposeful and substantial.
In sum, the Court finds that in entering into the Employment Agreement with
Plaintiff in South Carolina, Defendant purposefully availed itself of the privileges of
conducting activities in the state, and further, that Plaintiff’s claims arise in part out
Defendant’s alleged noncompliance with this contract. The Court also finds that it is
constitutionally reasonable to subject Defendant to the Court’s jurisdiction on this basis.
Analysis of the reasonableness of a court’s jurisdiction over a nonresident defendant
requires consideration of the burden upon the defendant, interests of the forum, the
plaintiff’s interest in obtaining relief, and the judicial system’s interest in obtaining the
most efficient resolution of controversies. Asahi Metal Indus. Co., Ltd. v. Super. Ct. Cal.,
480 U.S. 102, 113 (1987). “When minimum contacts have been established, often the
interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the
serious burdens placed on an alien defendant.” Id.
Here, while Defendant has no property or current employees in South Carolina, it
is a corporation that conducts business across the country. It has not alleged any
significant burden in defending the action in South Carolina. Indeed, Defendant
purposefully sought out a South Carolina resident as an employee and intended for that
employee to perform work in South Carolina. Such purposeful contact indicates
Defendant intended to invoke the benefits and protections of South Carolina laws.
Further, South Carolina has an interest in providing Plaintiff, a citizen of the state, with a
forum to resolve her grievances. While the Employment Agreement states that Texas

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law applies to any disagreements arising from the contract,3 Plaintiff also brings claims
under South Carolina law, such as the violation of the South Carolina Payment and
Wages Act. The exercise of personal jurisdiction does not offend “traditional notions of
fair play and substantial justice” under these circumstances. Int’l Shoe, 326 U.S. at 316.
B.

Venue-Forum Selection

Having found that Defendant is subject to South Carolina’s jurisdiction, the Court
must decide whether the forum selection clause nevertheless necessitates transferring
venue to the Northern District of Texas, as argued by Defendant. (ECF No. 4-1 at 11.)
The Employment Agreement states, “Venue for any dispute arising out of or in any way
related to this Agreement shall be in a court of competent jurisdiction in Dallas County,
Texas.” (ECF No. 4-3 at 7.) Defendant argues that the forum selection clause is valid
and that there are not any “extraordinary circumstances unrelated to the convenience of
the parties [that] clearly disfavor a transfer.” (ECF No. 4-1 at 12 (quoting Atl. Marine
Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568, 574 (2013))). Plaintiff
responds that the clause is unenforceable because it is both invalid and unreasonable.
(ECF No. 12 at 13–21.)
Forum selection clauses are governed by federal law. See Atl. Floor Servs., Inc. v.
Wal–Mart Stores, Inc., 334 F. Supp. 2d 875, 877 (D.S.C. 2004); Scott v. Guardsmark
Sec., 874 F. Supp. 117, 120 (D.S.C. 1995). A forum selection clause is prima facie valid
and enforceable when made in arms-length transactions by sophisticated business
entities absent some compelling and countervailing reason. Atl. Floor Servs., 334 F.
Supp. 2d at 877. Forum selection clauses are “prima facie valid and should be enforced

3
The Court discusses this clause of the Employment Agreement further below.

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unless enforcement is shown by the resisting party to be ‘unreasonable’ under the
circumstances.” M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 10 (1972). Forum
selection clauses may be considered unreasonable if:
(1) their formation was induced by fraud or overreaching; (2) the
complaining party “will for all practical purposes be deprived of his day in
court” because of the grave inconvenience or unfairness of the selected
forum; (3) the fundamental unfairness of the chosen law may deprive the
plaintiff of a remedy; or (4) their enforcement would contravene a strong
public policy of the forum state.
Id.
As an initial matter, the Court finds that the forum selection clause is not prima
facie valid. As Plaintiff contends, the forum selection clause was not made in an armslength transaction by sophisticated business entities. Plaintiff alleges that the forum
selection clause was not included in the “letter of engagement” presented at the
beginning of her employment. (ECF No. 12 at 14.) Rather, the clause was later thrown
into a memorialization of the preexisting agreement made between the parties about
Plaintiff’s employment. When Defendant mailed Plaintiff the Employment Agreement a
month after she began working, Plaintiff could either accept the terms of the contract or
reject them and lose her job. At that point, Plaintiff was at a clear disadvantage relative to
Defendant, a sophisticated business entity. Under such circumstances, the forum
selection clause does not receive the same assumption of enforceability that it otherwise
might have if it had been part of the negotiations between the parties before Plaintiff
began her employment and if Plaintiff was a sophisticated business entity. See Scott v.
Guardsmark Sec., 874 F. Supp. 117, 120 (D.S.C. 1995) (finding that the contract made
in an employer-employee relationship was not one of sophisticated business entities

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negotiating at arms-length and noting that “the courts must protect the rights of
employees from abuse by employers who have more resources at their command”).
Further, the Court finds that the selected forum is gravely inconvenient to Plaintiff.
Here, Plaintiff asserts that her new job pays “substantially less” than that earned in her
previous employment. (ECF No. 12-1 ¶ 20.) According to Plaintiff, she has been
unemployed at least three months prior to starting her new job and has run through
“much of her savings and [] incurred substantial debts” during that time. (Id.)
Consequently, she alleges it “would be a tremendous hardship for [her] to have to hire an
attorney in Texas and travel to Texas for court proceedings in this case.” (Id. ¶ 19.) In
addition, Plaintiff resides in South Carolina and alleges that she has not traveled to
Texas since she left Defendant’s employment. (Id. ¶ 11.) She alleges that when she was
required to travel to Texas for business, Defendant paid for her travel expenses. (Id.)
Plaintiff’s poor financial situation essentially precludes her ability to travel to Texas to
have her day in Court.
The Court is also concerned by the apparent unfairness of the selected forum
given that it would necessarily limit some of Plaintiff’s claims. Specifically, Plaintiff
alleges claims for violation of the SCPWA and wrongful discharge in violation of South
Carolina public policy. (ECF No. 1-1 ¶¶ 15-22, 34-38.) Such claims would not survive in
the selected forum if Texas law were applied, as required in the Employment
Agreement’s choice of law provision. The significant inconvenience and unfairness of the
selected forum, in addition to the lack of prima facie validity of the forum selection
clause, lead the Court to find that the forum selection clause is unenforceable here.

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Defendant argues that transfer of venue is also required for the convenience of
parties and witnesses under 28 U.S.C. § 1404(a). However, Defendant provides no
analysis under this statute, and instead relies on the forum selection clause as reason to
transfer venue. (ECF Nos. 4-1 at 11–12; 16 at 3–6.) Upon careful consideration, the
Court finds that Defendant has failed to show that the “balance of convenience in the
interest of justice favor[s] trial in the transferee forum.” Joye v. First Commodity Corp. of
Boston, 81 F.R.D. 118, 124 (D.S.C. 1978) (applying § 1404(a) and stating that, “The real
test of whether an action should be transferred to another jurisdiction is one of balancing
convenience between moving party and the plaintiff. . . . Defendant must make a clear
cut showing that the balance of convenience in the interest of justice favor trial in the
transferee forum”) (citations omitted); see, e.g., Cunningham v. Ford Motor Co., 413 F.
Supp. 1101, 1105–06 (D.S.C. 1976) (“The plaintiff has the initial right to select the forum
he desires, and that selection is entitled to great weight; ‘unless the balance is strongly in
favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.’”
(quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947))). Accordingly, the Court
declines to transfer venue in this action.
As a final matter, the Court has read Defendant’s letter and the attached Texas
Order related to Defendant’s motion to file a letter advising the Court of an order in
related litigation (ECF No. 25) and GRANTS this motion. However, as Defendant
acknowledges, the Court is free to give the Texas Order “whatever consideration the
Court determines appropriate.” (ECF No. 27 at 1.) The Court has clearly drawn a
different conclusion regarding the enforceability of the forum selection clause. However,

16

the only claims at issue in the Texas case are Defendant’s tort claims, which can be
addressed under Texas law or South Carolina law. Further, Plaintiff alleges that the
Texas case involves events that occurred only after Plaintiff’s employment ended. Thus,
the Texas case lacks the substantial ties to South Carolina that are present here. The
Court has therefore not afforded any significant weight to the findings made in that
Order.
CONCLUSION
For the foregoing reasons, the Court finds that Defendant is subject to personal
jurisdiction in South Carolina and that the forum selection clause is unenforceable in this
instance. The Court further declines to transfer venue under 28 U.S.C. § 1404(a).
Defendant’s motion to dismiss and/or transfer venue (ECF No. 4) is therefore DENIED.
AND IT IS SO ORDERED.

/s/Bruce Howe Hendricks
United States District Judge
Greenville, South Carolina
August 12, 2016

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