United States District Court, D. Oregon
Jeffrey M. Edelson and Steffan Alexander, Markowitz Herbold,
PC, Of Attorneys for Plaintiff.
L. Loesch and Alexander F. Strong, Bendich, Stobaugh &
Strong, PC, Of Attorney for Defendant.
OPINION AND ORDER
Michael H. Simon, United States District Judge
Scott Johnson, an Oregon citizen, brings this action against
Defendant Copiers Northwest, Inc. (“Copiers NW”),
a Washington corporation headquartered in Seattle. As alleged
in Plaintiff's First Amended Complaint
(“FAC”), on January 25, 2010, Johnson and Copiers
N.W. entered into a contract relating to Johnson's
employment at Copiers NW, titled “Employment Offer and
Agreement with Non-Solicitation Covenant”
(“Employment Agreement”). FAC ¶ 8. As his
first claim for relief, Johnson seeks a declaration that the
restrictive covenant, titled “Non- Solication, ”
found in paragraph 7 of the Employment Agreement is actually
a noncompetition agreement that is voidable under Oregon
statutory law, specifically Or. Rev. Stat. § 653.295. As
his second claim for relief, Johnson seeks unpaid wages and
penalty wages under Oregon statutory law, specifically, Or.
Rev. Stat. §§ 652.140(2) and 652.150. Johnson
alleges that Copiers N.W. failed to pay Johnson “his
full earned wages or compensation when due him under his
Compensation Plan.” FAC ¶ 22. Copiers N.W.
moves to dismiss the action under the doctrine of forum
non conveniens, relying on a forum-selection clause
contained in paragraph 8 of the Employment Agreement. ECF 12.
That forum-selection clause reads: “Any proceedings for
injunctive relief or enforcement of this Agreement shall be
brought in Superior Court for King County, State of
Washington.” ECF 14 at 7. For the reasons stated below,
the Court GRANTS Copiers NW's Motion to Dismiss.
party seeks to enforce a contractual forum-selection clause
pointing to a nonfederal forum, an appropriate way to enforce
it is through a motion raising the doctrine of forum non
conveniens. Atl. Marine Constr. Co., Inc. v. U.S.
Dist. Court for the W. Dist. of Tex., 134 S.Ct. 568, 580
(2013) (“Instead, the appropriate way to enforce a
forum-selection clause pointing to a state or foreign forum
is through the doctrine of forum non
conveniens.”). The doctrine of forum non
conveniens “rests on the principle that a court
may resist imposition upon its jurisdiction when the matter
may be more conveniently tried in another forum, even when
jurisdiction is authorized by the letter of a general venue
statute.” Hamilton v. Firestone Tire & Rubber
Co., Inc., 679 F.2d 143, 146 (9th Cir. 1982) (citing
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)). The
Ninth Circuit has cautioned, however, that “[t]he
doctrine of forum non conveniens is a drastic
exercise of the court's ‘inherent power'
because, unlike a mere transfer of venue, it results in the
dismissal of the plaintiff's case. . . . Therefore, we
have treated forum non conveniens as ‘an
exceptional tool to be employed sparingly, ' and not a
‘doctrine that compels plaintiffs to choose the optimal
forum for their claim.'” Carijano v. Occidental
Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011)
(quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1118
(9th Cir. 2002)).
the parties have formed a contract that includes a valid
forum-selection clause, federal law controls whether the
clause is enforceable. Manetti-Farrow, Inc. v. Gucci Am.,
Inc., 858 F.2d 509, 513 (9th Cir. 1988). In Atlantic
Marine, the Supreme Court clarified the factors that a
district court should consider when evaluating the
enforceability of a valid forum-selection clause. 134 S.Ct.
at 581-82. In the presence of a valid forum-selection clause,
“the plaintiff's choice of forum merits no
weight.” Id. at 581. Additionally, the
district court “should not consider arguments about the
parties' private interests. . . . A court accordingly
must deem the private-interest factors [including
inconvenience to the parties] to weigh entirely in favor of
the preselected forum.” Id. at 582. The
district court may only consider arguments concerning
public-interest factors, which “will rarely
defeat” a motion to dismiss. Id.
Supreme Court also explained that a valid forum-selection
clause alters the ordinary forum non conveniens
analysis. Atl. Marine, 134 S.Ct. at 581. A court
must give a forum-selection clause “controlling weight
in all but the most exceptional cases.” Id. at
579 (internal citation and quotation marks omitted). Courts
should not “unnecessarily disrupt the parties'
settled expectations” when the parties have
“contracted in advance to litigate disputes in a
particular forum.” Id. at 583. “In all
but the most unusual cases, therefore, ‘the interest of
justice' is served by holding parties to their
bargain.” Id.; see also Swenson v.
T-Mobile USA, Inc., 415 F.Supp.2d 1101, 1104 (S.D. Cal.
2006) (“[Forum selection clauses] are prima facie valid
and are enforceable unless the party challenging enforcement
shows the clause is unreasonable under the
circumstances.” (citing R.A. Argueta v. Banco
Mexicano, S.A., 87 F.3d 320, 325 (9th Cir. 1996))). A
plaintiff bears the burden of showing exceptional
circumstances that make dismissal inappropriate despite a
valid and applicable forum-selection clause. See Atl.
Marine, 134 S.Ct. at 581.
N.W. recruited Johnson to work as a Sales Representative for
specified geographic regions within Oregon. ECF 16 at 1-2. On
January 25, 2010, Johnson began working for Copiers N.W. and
signed the Employment Agreement. ECF 13 at 9-14; ECF 14 at
4-9. The Employment Agreement also appears to incorporate a
Compensation Plan as an addendum to the Employment Agreement
that outlines Johnson's salary, sales quotas, and other
details of his compensation and responsibilities as a Sales
Representative for Copiers NW. ECF 13 at 9; ECF 14 at 11.
least three provisions of the Employment Agreement are at
issue in this lawsuit. First, the Agreement contains a
“Non-Solicitation” provision that reads as
A. During your employment with CNW and for a period of
twenty-four months after the termination of your employment,
You agree that You will not on your personal behalf or on
behalf of any other person or entity besides CNW:
1. Make any effort, directly or indirectly, to obtain
business from any customer or prospective customer of CNW
that you had direct contact with;
2. Cause or attempt to cause any customer or prospective
customer of CNW to reduce its business with CNW;
3. Accept business from any customer or prospective customer
ECF 13 at 10-11. Mr. Johnson characterizes this provision as
a “non-compete clause.”
the Agreement contains a provision entitled
“Recruitment of Employees” that reads:
During employment and for a period of twelve months after
termination, You agree not to recruit any employee to leave
CNW and to go to work for You or your new employer or another
entity on whose behalf You solicited the CNW employee. The
parties agree that this would be seriously damaging to CNW .
. . .
Id. at 12.
and most importantly for the purposes of deciding the pending
motion to dismiss, the Employment Agreement contains a
forum-selection clause. The Agreement's
“Venue” provision reads:
Any proceedings for injunctive relief or enforcement of
this Agreement shall be brought in Superior Court for
King County, State of Washington; unless, CNW exercises its
right under ...