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Barton & Associates, Inc. v. Barry

Superior Court of Massachusetts, Suffolk, Business Litigation Session

February 1, 2019

BARTON & ASSOCIATES, INC.
v.
Colin BARRY

          File Date: February 4, 2019

          MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANT’S MOTION TO TRANSFER VENUE

          Mitchell H. Kaplan, Justice of the Superior Court

          The plaintiff, Barton & Associates, Inc. (Barton), is a recruiting and staffing firm that provides temporary medical professionals to its clients in the health care sector to fill temporary positions. Its principal office is in Massachusetts, and it has offices in several other states, including Florida and Arizona. The defendant, Colin Barry, was an employee of Barton working in the recruitment and placement of these temporary medical professionals. Barry’s employment agreement with Barton contained restrictive convenants, which included, among other restrictions, a covenant that prohibited Barry from soliciting any Barton employee to work for another firm for a period of a year. In this action, Barton alleges that Barry left its employ and solicited his former colleagues at Barton to join a competitor. It seeks injunctive relief and damages.

          Barry, who is representing himself in this action, has filed a motion to transfer this case to Arizona, where he lives and last worked for Barton. Because this case is pending in a Massachusetts state court, this court has no power to transfer any case to a court in Arizona; and the pending motion therefore must be DENIED. However, the court feels that some additional comment on the status of this case is warranted.

          ADDITIONAL FACTS

          Barry began his employment with Barton in its West Palm Beach office in February 2015. His employment agreement provided that he would receive a salary of $ 35, 000 a year plus some manner of commissions for positions that he filled. There is nothing in the record to indicate how much he earned in commissions in any year. In December 2016, he transferred to Barton’s Tempe, Arizona office. In January 2018, he signed another revised employment agreement which contained similar restrictive covenants and also a forum selection clause which provided that any action to enforce the agreement must be brought in Massachusetts, contained a consent to jurisdiction in Massachusetts, and waived any defense that Massachusetts was an inconvenient forum. In May 2018, Barry was involved in an argument with his manager and fired. He allegedly began working for a competitor of Barton: Robert Half; and then allegedly reached out to former of his colleagues at Barton suggesting that they join him at his new employer.

          DISCUSSION

          Barry has not moved to dismiss the case on the grounds of forum non conveniens, and the court will therefore not address such a motion. Indeed, it has no affidavits or other evidentiary materials before it, which would be necessary to support such a motion. The court does, however, make the following observations.

         In Oxford Global Resources, LLC v. Hernandez, 480 Mass. 462, 474-75 (2018), the Supreme Judicial Court recently addressed forum non conveniens provisions that are contained in employment agreements similar to that signed by Barry.

Even if the forum selection provision had specifically included language waiving any objection to the choice of forum, we would not construe that contractual provision to deprive a defendant of his or her ability to move to dismiss on the ground of forum non conveniens. See generally W.R. Grace & Co., 407 Mass. at 580-81 (dismissal on ground of forum non conveniens not precluded by "service of suit" clause in excess coverage policy that, while not technically forum selection provision, compelled insurers to accept Massachusetts forum for disputes). Forum non conveniens considers both public concerns, such as "administrative burdens caused by litigation that has its origins elsewhere and the desirability of the trial of a case in a forum that is at home with the governing law," and private concerns, such as the "practical problems that do or do not make a trial easy, expeditious, and inexpensive, such as the ease of access to proof, the availability of compulsory process, and the cost of attendance of witnesses." Id. at 578. See New Amsterdam Cas. Co., 353 Mass. at 95-96. These are matters affecting the "interest of substantial justice," G.L.c. 223A, § 5, that a court cannot ignore regardless of any prior agreement between the parties. Moreover, when the parties enter into an agreement regarding the choice of forum, they cannot foresee the particular circumstances of future litigation and predict at that time whether the interest of substantial justice might require the litigation to be tried in a more convenient forum.
A forum selection provision, however, has some bearing on the consideration by a judge of the private factors insofar as, by agreeing to a particular forum, the defendant waives any objection to the forum based on the inconvenience of the forum to him or her. See W.R. Grace & Co., 407 Mass. at 580 ("service of suit clause bars an insurance company from relying on its own inconvenience to assert a claim of forum non conveniens "). But we do not believe that a defendant’s agreement to a forum waives an objection to the forum based on any other private factor, including the convenience of witnesses. Witnesses to be called by a party are not "their witnesses" in the sense that they are invariably agents of the party or persons whose concerns about inconvenience can be waived by the party, especially where the party is unlikely to know who these witnesses will be and the extent of their inconvenience when the party agrees to a choice of forum.

          In consequence, the waiver in Barry’s employment agreement does not preclude a properly supported forum non conveniens motion.

          The court further notes that the nature of the remedies that Barton is seeking may have some bearing on whether such a motion might be successful. It seems clear that Barton would be entitled to injunctive relief if it proves the allegations set out in the complaint. Provisions to prohibit former employees from raiding their former employer of its employees for a reasonable period of time are unquestionably subject to enforcement. Further, it appears that in this case a violation of that provision may be provable with documentary evidence, i.e., emails sent from Barry to former colleagues.

          However, a claim for damages would undoubtedly require the testimony of witness who live and work in Arizona. For example, even if a Barton employee left Barton, the reasons for that employee’s departure would be an essential element of a damages claim. For instance, Barton might not suffer any injury if an employee had already decided to leave Barton or was unlikely to remain with Barton long term. And, there may be other personal circumstances involving any such employee that are important factors in any damages claim. Clearly, none of these employees could be subpoenaed to testify in a Massachusetts court. Indeed, given the salaries that Barry and other employees in his ...


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