United States District Court, D. Massachusetts, Eastern Division
MEMORANDUM AND ORDER OF TRANSFER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.
Nicolas Priore was a technical consultant for Perficient, Inc., in its Boston, Massachusetts office from July 31, 2014 until February 11, 2016. Perficient assigned Priore to work for its client, Seniorlink, in June of 2015. That assignment required Priore to work onsite at Seniorlink’s offices in Boston and provide support for various technology systems, including Pegasystems. In February of 2016, Priore was hired directly by Seniorlink, which did not thereafter renew its contract with Perficient. Perficient alleges that Priore is prohibited from working for Seniorlink under a non-compete agreement he signed with Perficient, which it now sues to enforce.
On February 29, 2016, I entered a Temporary Restraining Order  preventing Priore from working on any Pegasystems projects for Seniorlink. That Order remains in effect until March 14, 2016, when a hearing on Perficient’s motion for preliminary injunction is set. The matter is now before me on Priore’s motion to transfer this case to the United States District Court for the District of Massachusetts - Boston under 28 U.S.C. § 1404(a). I will grant the motion to transfer.
Priore lives and works in Boston. As a technical consultant for Perficient, Priore was responsible for, among other things, installing and supporting various Pegasystems applications and platforms. Priore became certified to work on Pegasystems while employed at Perficient and was then sent to work at one of Perficient’s clients, Seniorlink, to provide support on Seniorlink’s Pegasystems projects. According to his testimony at the TRO hearing, Priore worked Monday through Thursday at Seniorlink’s Boston office and worked on Fridays at Perficient’s Boston office. Priore worked at Seniorlink for about seven months as a Perficient employee and then went to work directly for Seniorlink. After Priore left Perficient, Seniorlink did not renew Perficient’s contract to provide services and support for its Pegasystems projects. Perficient alleges that, as an employee of Seniorlink, Priore is continuing to work on the same Pegasystems projects he worked on while an employee of Perficient, is performing the same tasks he was performing while at Perficient, and is providing other products and services to Seniorlink that are competitive with the products and services offered by Perficient. Seniorlink is not a party to this lawsuit.
Priore’s employment with Perficient was governed by a non-compete agreement which prevented him from providing competitive products or services to any Perficient client with whom he had worked for a period of two years. The agreement also states that it is “governed by the laws of the state where the Employee is domiciled, ” (which is Massachusetts) and that “the state and federal courts situated in St. Louis, Missouri shall have personal jurisdiction over the Company and Employee to hear all disputes arising under this Agreement.”
Count I of the state-court petition alleges that Priore is violating his non-compete agreement and seeks to enjoin Priore from working for Seniorlink for a period of 24 months, and also seeks the return of any Perficient property. Count II alleges a breach of the non-compete agreement and requests damages for Priore’s alleged breach of his restrictive covenants.
Priore moves to transfer this case to a more convenient forum, the United States District Court for the District of Massachusetts - Boston, under 28 U.S.C. § 1404(a), which permits a district court to transfer a civil action to any other district where it might have been brought “[f]or the convenience of parties and witnesses, in the interest of justice.” “A case may be transferred under § 1404(a) only when venue is proper in the transferor and transferee forums.” Steen v. Murray, 770 F.3d 698, 701 (8th Cir. 2014). Because Priore voluntarily removed this case to this Court, venue is proper here. Adams v. Smithkline Beecham Corp., Case No. 4:15CV1829 (CEJ), 2016 WL 469369, at *2 (E.D. Mo. Feb. 8, 2016). As such, this case may be transferred to the United States District Court for the District of Massachusetts under § 1404(a) if it could have originally been filed there. This case could have been filed in Massachusetts as Priore resides there. See 28 U.S.C. § 1391(b)(1).
To determine whether the statutory factors justify transfer to the District of Massachusetts, this Court should consider the convenience of the parties and witnesses, including the willingness of witnesses to appear, the ability to subpoena witnesses, and the adequacy of deposition testimony, the accessibility of records and documents, the location where the complained of conduct occurred, and choice of law. See Terra International, Inc. v. Mississippi Chemical Corp., 119 F.3d 688, 696 (8th Cir. 1997). The Court may also consider judicial economy, plaintiff’s choice of forum, the comparative costs to the parties of litigating in each forum, the ability of each party to enforce a judgment, obstacles to a fair trial, and the advantages of having a local court determine questions of local law. C-Mart, Inc. v. Metropolitan Life Ins. Co., Case No. 4:13CV52 (AGF), 2013 WL 2403666, at *3 (E.D. Mo. May 31, 2013). The “primary, if not most important of these interests is the convenience of the witnesses.” Anheuser-Busch, Inc. v. City Merchandise, 176 F.Supp.2d 951, 959 (E.D. Mo. 2001) (internal quotation marks and citation omitted). Courts are not limited to just these enumerated factors, and they have recognized the importance of a case-by-case evaluation of the particular circumstances presented and of all relevant case-specific factors. In re Apple, Inc., 602 F.3d 909, 912 (8th Cir. 2010). Whether to grant or deny a request to transfer a case under § 1404(a) is within the trial court’s sound discretion. Hubbard v. White, 755 F.2d 692, 694 (8th Cir. 1985) (citation omitted). However, courts give great deference to a plaintiff’s choice of forum, and a party requesting transfer under § 1404(a) bears the burden of demonstrating that the transfer is justified. Anheuser-Busch, Inc. v. All Sports Arena Amusement, Inc., 244 F.Supp.2d 1015, 1022 (E.D. Mo. 2002) (citation omitted).
To oppose transfer, Perficient relies exclusively on the forum selection clause in Priore’s non-compete agreement. That clause provides that “the state and federal courts situated in St. Louis, Missouri shall have personal jurisdiction over the Company and Employee to hear all disputes arising under this Agreement.” According to Perficient, the clause is unambiguously mandatory, not permissive, because it includes the word “shall” and must be enforced according to the United States Supreme Court’s decision in Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas, 134 S.Ct. 568 (2013). “The distinction between mandatory and permissive forum selection clauses matters for the purposes of the § 1404 analysis.” Discovery Pier Land Holdings, LLC v. Visioneering Envision.Design.Build, Inc., Case No. 4:14CV2073 (CEJ), 2015 WL 1526005, at *3 (Apr. 2, 2015).
If the forum selection clause is mandatory, the Court must apply the Atlantic Marine decision and adjust its usual § 1404(a) analysis by refusing to consider arguments about the parties’ private interests in favor of public interest factors only. Atlantic Marine Construction Co., Inc., 134 S.Ct. at 582. Additionally, “when the parties have a valid mandatory forum selection clause, a plaintiff filing in a nonconforming venue may resist transfer under § 1404 only under ‘exceptional circumstances unrelated to the convenience of the parties.’” Discovery Pier Land Holdings, 2015 WL 1526005, at *3 (quoting Atlantic Marine Construction Co., Inc., 134 S.Ct. at 581).
The Atlantic Marine analysis, however, does not apply where the forum selection clause is permissive rather than mandatory. See id.; RELCO Locomotives, Inc. v. AllRail, Inc., 4 F.Supp. 3d 1073, 1085 (S.D. Iowa 2014) (“Because Atlantic Marine’s discussion of forum-selection clauses describes those where ‘a plaintiff agrees by contract to bring suit only in a specified forum, ’ the Court finds that the opinion contemplated only mandatory forum-selection clauses when assessing their effect on forum non conveniens analysis.”); U.S. ex rel. MDI Services, LLC v. Federal Ins. Co., 2014 WL 1576975, at *3 (N.D. Ala. Apr. 17, 2014) (noting that “considerations relevant to altering the § 1404(a) analysis for mandatory forum-selection clauses would not apply in this case” if forum selection clause were permissive, not mandatory); Waste Management of Louisiana, L.L.C. v. Jefferson Parish ex rel. Jefferson Parish Council, 594 Fed.Appx. 820, 821-22 (Nov. 20, 2014) (declining interlocutory appeal of district court’s finding of permissive forum selection clause and subsequent refusal to apply Atlantic Marine analysis, noting that vast majority of courts have refused to apply Atlantic Marine to permissive forum selection clauses).
“To be mandatory, a forum selection clause must contain language that clearly designates a forum as the exclusive one.” Trans National Travel, Inc. v. Sun Pacific International, Inc., 10 F.Supp.2d 79, 82 (D. Mass. 1998) (internal quotation marks and citation omitted). “An agreement conferring jurisdiction in one forum should not be interpreted as excluding jurisdiction elsewhere unless it contains specific language of exclusion.” Id. (internal quotation marks and citation omitted). “Permissive forum selection clauses authorize jurisdiction and venue in a designated forum, but do not prohibit ...