United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION TO REMAND AND DENYING MOTION TO
L. ROBART, United States District Judge.
the court are: (1) Plaintiff Copiers Northwest, Inc.'s
(“Copiers Northwest”) motion to remand and
request for costs and fees (Pl.'s Mot. (Dkt. # 4)) and
(2) Defendant Scott Johnson's motion to transfer venue
(Def.'s Mot. (Dkt. # 6)). The court has considered the
motions, all submissions filed in support thereof and
opposition thereto, the balance of the record, and the
applicable law. Being fully advised,  the court GRANTS Copiers
Northwest's motion, DENIES Copiers Northwest's
request for costs and fees, and DENIES Mr. Johnson's
motion to transfer.
Northwest is a Washington corporation with its principal
office in Seattle, Washington. (Edelson Decl. (Dkt. # 7)
¶ 3, Ex. 2 at 1.) Defendant Mr. Johnson is an Oregon
resident who was employed by Copiers Northwest in Oregon from
January, 2010, until August, 2016. (Johnson Decl. (Dkt. # 10)
¶¶ 2-5; Edelson Decl. ¶ 3, Ex. 2 at 1-2.)
January 25, 2010, Mr. Johnson signed Copiers Northwest's
Employment Offer and Agreement with Non-Solicitation
Covenant. (Johnson Decl. ¶ 5.) The agreement prevents
Mr. Johnson from soliciting Copiers Northwest's customers
or recruiting Copiers Northwest's employees following
either party's termination of the employment agreement.
(Edelson Decl. ¶ 3, Ex. 2 at 7-9.) The agreement
also contains a forum selection clause that specifies the
King County Superior Court in the State of Washington as the
venue for “any proceedings for injunctive relief or for
enforcement of this Agreement . . . .” (Id. at
9.) Mr. Johnson did not prepare or modify the agreement.
(Johnson Decl. ¶ 5.)
Johnson performed the majority of his work for Copiers
Northwest in Oregon, his customers were in Oregon, and at all
relevant times he resided in Beaverton, Oregon. (Id.
¶ 2-3.) On or about August 1, 2016, Mr. Johnson left
Copiers Northwest to work for a competitor. (Edelson Decl.
¶ 3, Ex. 2 at 2.)
August 10, 2016, Copiers Northwest filed a suit in the King
County Superior Court to enforce Mr. Johnson's employment
agreement. (Id. at 1.) On September 12, 2016, Mr.
Johnson removed Copiers Northwest's suit to federal court
pursuant to 28 U.S.C. § 1332(a). (Notice (Dkt. # 1)
¶ 3.) Copiers Northwest filed a motion on September 15,
2016, to remand the action back to King County Superior Court
pursuant to the parties' forum selection clause.
(Pl.'s Mot. at 1.) Mr. Johnson filed a motion to transfer
the removed case to Oregon to consolidate the suit with one
he had previously filed on August 1, 2016, in the United
States District Court for the District of Oregon, Portland
Division. (Def.'s Mot. at 2; Edelson Decl. ¶ 2, Ex.
1.) Mr. Johnson's suit in Oregon seeks to enjoin
enforcement of the non-solicitation clause of his employment
agreement and to recover unpaid wages. (Edelson Decl. ¶
2, Ex. 1.)
parties dispute the validity of the forum selection clause in
Mr. Johnson's employment agreement and whether the clause
governs this dispute. (Def.'s Reply (Dkt. # 17) at 4.)
Because settled law establishes that the forum selection
clause of Mr. Johnson's employment agreement is
enforceable and controls this dispute, the court remands the
case to King County Superior Court. The court's remand
renders Mr. Johnson's motion for transfer moot, and the
court declines to award Copiers Northwest attorney fees and
costs because controlling Ninth Circuit authority forecloses
such an award where the court's remand is based on a
contractual forum selection clause.
Copiers Northwest's Motion to Remand
The Validity of the Forum Selection Clause
forum selection clause contained in the employment agreement
is valid and controls this dispute. Federal law governs the
enforceability of a forum selection clause. Peterson v.
Boeing Co., 715 F.3d 276, 280 (9th Cir. 2013) (citing
Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d
509, 513 (9th Cir. 1988)). A forum selection clauses is prima
facie valid and should not be set aside unless the party
challenging enforcement can show that the clause is
unreasonable under the circumstances. Redwood Hill Farm &
Creamery, Inc. v. Barry-Wehmiller Design Grp., Inc.,
Case No. 16-cv-03200-JST, 2016 WL 4710194, at *1 (N.D. Cal.
Sept. 6, 2016) (citing Pelleport Inv'rs, Inc. v.
Budco Quality Theatres, Inc., 741 F.2d 273, 279 (9th
Cir. 1984)). A forum selection clause is unreasonable under
the circumstances if (1) its incorporation into the contract
was the result of fraud, undue influence, or overweening
bargaining power; (2) the selected forum is “so gravely
difficult and inconvenient” that the complaining party
will “for all practical purposes be deprived of its day
in court”; or (3) enforcement of the forum selection
clause would contravene a strong public policy of the forum
in which the suit was brought. M/S Bremen v. Zapata
Off-Shore Co., 407 U.S. 1, 12-18 (1972) (“The
Bremen”); see also Tompkins v. 23andMe,
Inc., 840 F.3d 1016, 1029-30 (9th Cir. 2016) (applying
The Bremen factors).
Johnson argues that the forum selection clause implicates all
three of The Bremen factors. He argues that (1)
because he was not on equal footing in negotiating with
Copiers Northwest, and because he did not receive sufficient
notice of the clause, the forum selection clause is a result of
undue influence and overweening bargaining power; (2)
litigation in Washington would effectively deprive him of his
day in court because of this court's inability to compel
unwilling Oregon-based witnesses to testify; and (3)