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Davis v. Office Depot, Inc.

United States District Court, D. Massachusetts

November 28, 2016

PETER C. DAVIS, III, and MERRY WHITE, Plaintiffs,
v.
OFFICE DEPOT, INC. and OFFICEMAX INCORPORATED, Defendants. MICHELLE B. SIGEL Plaintiff,
v.
OFFICE DEPOT, INC. and OFFICEMAX INCORPORATED, Defendants.

          MEMORANDUM AND ORDER

          Indira Talwani United States District Judge

         This Memorandum addresses motions to transfer or stay claims in two separate cases. In both cases, plaintiffs seek a declaratory judgment relating to certain restrictive covenants in agreements with defendants. The motions are based on a forum selection clause in the agreements. Because the defendants are the same in both actions and the motions to dismiss are almost identical and are based on the same agreement, the court addresses the motions jointly.

         Although all parties agree that venue is permissible here, defendants Office Depot, Inc., and OfficeMax Incorporated contend that the court should transfer the cases to the Southern District of Florida because their former employees, plaintiffs Merry White and Michelle B. Sigel, agreed to jurisdiction and venue in Florida, agreed that Florida law governs the dispute, and knew before filing here of the pendency of another lawsuit in the Southern District of Florida involving the issue of whether an identical agreement is enforceable. Plaintiffs White and Sigel respond that the forum selection clause in the agreement precludes defendants from challenging the forum here and that in any event, the case should remain under 28 U.S.C. § 1404(a). The court finds that the forum selection clause at issue does not preclude defendants from challenging this forum. The court nonetheless finds that transfer is not warranted, and accordingly, DENIES defendants' motions.

         I. Background

         On September 6, 2016, plaintiffs Peter C. Davis III and Merry White filed an amended complaint against their former employers, defendants Office Depot, Inc.[1] Civ. Action No. 16- cv-11783, Am Compl. [#4]. The amended complaint sought a declaratory judgment concerning certain restrictive covenants contained in an agreement that Davis may have signed and a declaratory judgment concerning certain restrictive covenants in a different agreement, the Associate Non-Competition, Confidentiality and Non-Solicitation Agreement (“Agreement”), signed by White. Civ. Action No. 16-cv-11783, Am. Compl. ¶¶ 16, 33-36 [#4]; Am. Compl. Ex. A [#4-1].[2]

         The following day, plaintiff Michelle B. Sigel filed her complaint as a related case against the same former employer defendants. Civ. Action No. 16-cv-11823, Compl. [#1]. Like White, Sigel sought a declaratory judgment concerning certain restrictive covenants contained in the Agreement. Civ. Action No. 16-cv-11823, Compl. ¶¶ 12, 20-23 [#1].

         On October 4, 2016, defendants moved to transfer White and Sigel's claims[3] to the Southern District of Florida, relying on a choice of law and venue provision in the Agreement. That provision states:

All issues and questions concerning the construction, validity, enforcement, and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, without giving effect to any choice of law or conflict rules or provisions (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any claim or dispute arising out of or relating to the Agreement . . . shall be heard and determined exclusively by the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, unless federal jurisdiction is available, in which case the Southern District of Florida, shall have exclusive jurisdiction to hear and determine such claim or dispute; provided, however, that such courts shall not have exclusive jurisdiction if Associate's principal place of employment is outside of Florida and Associate's primary duty is direct sales to customers of Office Depot in a defined territory that does not include Florida. The parties expressly submit and consent in advance to the jurisdiction of such courts in any action or suit commenced in such court, and each party hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue or forum non conveniens.

         On October 26, 2016, Sigel filed an Amended Complaint, and, on November 1, 2016, with leave of court, White and Davis filed their Second Amended Complaint [#39]. The amended complaints add additional claims but retain the same allegations relating to the Agreement.

         II. Defendants Have Not Waived Their Right to Seek a Transfer under 28 U.S.C. § 1404(a)

         Plaintiffs assert that defendants' motions to transfer are barred by the waiver provision in the Agreement. Defendants respond that the motion is not barred because they are not objecting to venue on the grounds of forum non conveniens ground and instead are seeking a transfer under 28 U.S.C. § 1404(a).

         The court finds no waiver, but for different reasons than those articulated by defendants. Defendants are correct that the common law doctrine of forum non conveniens, which allowed the court to dismiss a case altogether, differs from transfer pursuant to § 1404(a), which allows a case to proceed, albeit in a different forum. Norwood v. Kirkpatrick, 349 U.S. 29, 31 (1955). But the common law doctrine no longer applies in federal court, except where the alternative forum is abroad or is a state or territorial court. Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430 (2007). “For the federal court system, Congress has codified the doctrine and has provided for transfer, rather than dismissal, when a sister federal court is the more convenient place for trial of the action.” Id.; see also Atlantic Marine Const. Co. v. U.S. Dist. Ct. for the W. Dist. of Texas, 134 S.Ct. 568, 580 (2013) (“Section 1404(a) is merely a codification of the doctrine of forum non conveniens for the subset of cases in which the transferee forum is within the federal court system”). Defendants' interpretation of the phrase “objection . . . based upon . . . forum non conveniens” as limited to a common law doctrine which in most circumstances no longer applies in federal court cannot be derived from the plain reading of that Agreement.

         Defendants' understanding of the venue provision-that the court may consider a motion to transfer venue between two different permissible venues-does find support, however, in the language of the Agreement. The Agreement contemplates a general venue rule, with exclusive jurisdiction in Florida courts. The waiver language applies in these general cases, as “[t]he parties expressly submit and consent in advance to the jurisdiction of such courts in any action or suit commenced in such court, and each party hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue or forum non conveniens.” The term “such courts” refers to the Florida courts with exclusive jurisdiction, and the waiver provision applies to actions brought in “such courts.” In those circumstances, the parties have agreed not to seek to transfer the case to a different venue. But “where the Associate's principal place of employment is outside of Florida and the Associate's primary duty is direct sales to customers in a defined territory that does not include Florida, ” “such courts shall not have exclusive jurisdiction.” And in those circumstances - where venue may be improper or inconvenient-the parties have not consented in advance to the jurisdiction of any one court, nor waived their objections. The court thus utilizes the §1404(a) standards, rather than a race to the courthouse, to decide whether a transfer is appropriate.

         III. Because the Parties Have Not Agreed to a Single Forum, the Atlantic MarineAdjustments to the 28 U.S.C. ...


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