822 F.Supp.2d 309 (W.D.N.Y. 2011), 10-CV-518S, Sepanski v. Janiking, Inc.

Docket Nº10-CV-518S.
Citation822 F.Supp.2d 309
Opinion JudgeWILLIAM M. SKRETNY, Chief Judge.
Party NameMarc SEPANSKI, Plaintiff, v. JANIKING, INC., and Janiking of Buffalo, Inc., Defendants.
AttorneyHarvey P. Sanders, Sanders & Sanders, Cheektowaga, NY, for Plaintiff. Ginger D. Schroder, Esq., Linda H. Joseph, Schroder, Joseph & Associates, LLP, Buffalo, NY, for Defendants.
Case DateSeptember 30, 2011
CourtUnited States District Courts, 2nd Circuit, Western District of New York

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822 F.Supp.2d 309 (W.D.N.Y. 2011)

Marc SEPANSKI, Plaintiff,


JANIKING, INC., and Janiking of Buffalo, Inc., Defendants.

No. 10-CV-518S.

United States District Court, W.D. New York.

September 30, 2011

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[Copyrighted Material Omitted]

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Harvey P. Sanders, Sanders & Sanders, Cheektowaga, NY, for Plaintiff.

Ginger D. Schroder, Esq., Linda H. Joseph, Schroder, Joseph & Associates, LLP, Buffalo, NY, for Defendants.




In this action, Plaintiff Marc Sepanski asserts claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law § 296 (" NYSHRL" ). Plaintiff's claims arise from Defendants alleged discrimination on the basis of sex, sexual harassment, retaliatory acts, and termination of Plaintiff's employment. Plaintiff seeks a permanent injunction barring Defendants from future unlawful discriminatory acts, an award for lost wages and benefits, consequential and compensatory damages, punitive damages subject to Title VII, and reasonable attorneys' fees. Presently before this Court is Defendants' Motion to Dismiss or Alternatively

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to Transfer Venue.1 For the following reasons, Defendants' motion is denied.


A. Facts

Plaintiff Marc Sepanski is a resident of the State of New York. (Complaint (" Comp" ), Docket No. 1 at ¶ 5.) Defendants Jani-King, International, Inc. and Jani-King of Buffalo (collectively, " Jani-King" ) are corporations incorporated under the laws of Texas, with their corporate headquarters in Addison, Dallas County, Texas. (Defendants' Memorandum of Law in Support of Their Motion to Dismiss or Alternatively to Transfer Venue, (Defs.' Mem.), Docket No. 8, 1.)

The present action arises out of Plaintiff's employment by Jani-King of Buffalo, a wholly owned subsidiary of Jani-King, International, Inc. ( Id. ) Sepanski began his employment on February 21, 2005. (Comp. ¶ 7.) As part of his employment, Sepanski entered into an " Employment and Non-Disclosure Agreement," summarizing the terms and conditions of his employment with Jani-King of Buffalo. (Defs.' Mem. at 2.) This agreement contained a forum selection and choice of law clause designating Dallas County as the exclusive venue for all employment-related disputes. ( Id. )

Shortly after Sepanski started his employment, he was subjected to a pattern of harassing and belittling comments on the basis of his gender. (Comp. ¶ 9.) Among these comments were statements like " men are worthless" and " men were God's first mistake." ( Id. at ¶ 11.) In response, Plaintiff complained to Defendants' Regional Manager Joseph Stein. ( Id. at ¶ 12.) These complaints eventually lead to Plaintiff's termination by Defendants on March 14, 2006. ( Id. at ¶ ¶ 8, 16.)

B. Procedural History

Plaintiff commenced the present action on June 21, 2010, by filing a complaint in the United States District Court for the Western District of New York. Defendants filed a motion to dismiss, or in the alternative, to transfer venue, on November 22, 2010. (Docket No. 8.) Briefing on the motion concluded on January 20, 2011, at which time this Court took the matter under advisement without oral argument.


A. Motion to Dismiss Standard

Federal Rule of Civil Procedure 12(b)(3) provides that a party may move to dismiss a complaint on the basis of " improper venue." Fed.R.Civ.P. 12(b)(3). The standard by which to decide a 12(b)(3) motion is similar to that of a 12(b)(2) motion to dismiss for lack of personal jurisdiction. Benjamin v. Carusona, No. 09 Civ. 9722, 2010 WL 4448213, at *5 (S.D.N.Y. Nov. 5, 2010). Accordingly, the court will accept as true all factual allegations in the non-moving party's pleadings and draw all reasonable inferences in favor of the party opposing the motion. Friedman v. Schwartz, No. 08-CV-2801, 2009 WL 701111, at *5 (E.D.N.Y. Mar. 13, 2009). Additionally, in ruling on the motion the court may rely on facts and documents outside the Complaint. Cartier v. Micha, Inc., No. 06-CV-4699, 2007 WL 1187188, at *2 (S.D.N.Y. Apr. 20, 2007). Plaintiff bears the burden of demonstrating

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that venue is proper. U.S.E.P.A. ex rel. McKeown v. Port Auth. of N.Y. & N.J., 162 F.Supp.2d 173, 183 (S.D.N.Y.2001). Absent an evidentiary hearing, the plaintiff need only make a prima facie showing that venue is proper. Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir.2005). Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir.2010) (citing Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994)).

B. Defendants' Motion to Dismiss

Defendant contends that Plaintiff's claims should be dismissed based on improper venue because the forum selection clause in the Employment and Non-Disclosure Agreement requires Plaintiff to bring his action in Dallas County, Texas. Plaintiff does not dispute the validity of the forum selection clause, but argues that the clause should be held unenforceable.

A party moving to dismiss an action for improper venue pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure on the basis of a forum selection clause must demonstrate: " (1) the clause was reasonably communicated to the party resisting enforcement; (2) the clause was mandatory and not merely permissive; and (3) the claims and parties involved in the suit are subject to the forum selection clause." Altvater Gessler-J.A. Baczewski Intern. (USA) Inc. v. Sobieski, 572 F.3d 86, 89 (2d Cir.2009).

Here, neither party disputes that these three requirements have been met. Therefore the burden shifts to the non-moving party to " rebut the presumption of enforceability." Id. To do so, a non-moving party must make a " sufficiently strong showing that ‘ enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.’ " Id. (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). This burden is met where a non-moving party demonstrates that (1) the forum selection clause is the result of fraud or overreaching; (2) the law to be applied in the selected forum is fundamentally unfair; (3) enforcement would contravene a strong public policy of the forum state; or (4) trial in the selected forum would be so difficult and inconvenient that plaintiffs will effectively be deprived of their day in court. Phillips v. Audio Active Ltd., 494 F.3d 378, 392 (2d Cir.2007).

Sepanski argues that both the third and fourth grounds in Phillips apply. As to the public policy exception, Plaintiff contends that Title VII's venue provision evidences a public policy favoring plaintiffs' right to bring civil rights actions in any of Title VII's specified forums, without regard to forum selection clauses.

Under Title VII, it is unlawful for an employer to " discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII's venue provision reads,

[A Title VII] action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice ....

42 U.S.C. § 2000e-5(f)(3). Plaintiff relies heavily on the decisions in Thomas v. Rehabilitation Services of Columbus, Inc., 45 F.Supp.2d 1375, 1379 (M.D.Ga.1999), and the Second Circuit's decision in

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Red Bull Associates v. Best Western International, 862 F.2d 963 (2d Cir.1988) ( " Red Bull " ) for the proposition that Title VII's venue provision trumps Defendant's forum selection clause on public policy grounds.

At issue in Thomas was the proper forum in which to bring a Title VII claim. Defendant in that case asked the court to enforce a forum selection clause, and dismiss plaintiff's Title VII action. Thomas, 45 F.Supp.2d at 1378-79. The court observed that " [b]y expressly providing that an action under Title VII may...

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