Mason v. Themarysue, LLC

• Decision Date: 04 August 2022
• Docket Number: 3:22-cv-00766-YY
• Parties: JESSICA MASON, Plaintiff, v. THEMARYSUE, LLC, a Delaware limited liability corporation, GAMURS, INC., a Delaware business corporation, TRINET HR III, INC., a California business corporation, ANDREW EISBROUCH, individually, DAN VAN WINKLE, individually, and KAILA HALE-STERN, individually, Defendants.
• Court: U.S. District Court — District of Oregon

JESSICA MASON, Plaintiff,
v.
THEMARYSUE, LLC, a Delaware limited liability corporation, GAMURS, INC., a Delaware business corporation, TRINET HR III, INC., a California business corporation, ANDREW EISBROUCH, individually, DAN VAN WINKLE, individually, and KAILA HALE-STERN, individually, Defendants.

No. 3:22-cv-00766-YY

United States District Court, D. Oregon, Portland Division

August 4, 2022

OPINION AND ORDER

Youlee Yim You United States Magistrate Judge

Plaintiff Jessica Mason alleges claims of employment discrimination, retaliation, and wrongful termination, among others, against defendant Themarysue, LLC and related entities and individuals. ECF 1-1. Themarysue operates “The Mary Sue,” a feminist news and entertainment website that covers movies, television, video games, and more. Compl. ¶ 2, ECF 1-1; Mot. Transfer 2, ECF 16. Themarysue hired plaintiff in September of 2019 to cover for a weekend editor who was on leave, and in November of 2019, hired plaintiff as a full-time

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assistant editor. Mot. Transfer 2, ECF 16. The parties entered into an employment agreement, which provides in pertinent part:

Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of New York. Any legal suit, action, or proceeding arising out of or relating to this Agreement may be instituted exclusively in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding

Eisbrouch Decl., Ex. 2 at 1, ECF 18-1.

Themarysue terminated plaintiff in April of 2021. Mot. Transfer 4, ECF 16. Plaintiff initially filed her complaint, which alleges violations of Oregon employment and civil rights laws, in Washington County Circuit Court in April of 2022. ECF 1-1. Defendants timely removed the case to this court in May of 2022 based on diversity jurisdiction. Notice Removal ¶¶ 9-23, ECF 1.

Defendants have filed a Motion to Transfer Venue pursuant to 28 U.S.C. § 1404(a), arguing that the language of the forum-selection clause-that any claim “arising out or relating to” plaintiff's employment “may be initiated exclusively in the federal courts . . . located in the City of New York and County of New York”-requires this case to be transferred to the United States District Court for the Southern District of New York. ECF 16. Because the forumselection clause is valid and mandates transfer of this case to the Southern District of New York, the motion is granted.^[1]

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ANALYSIS

I. Controlling Law-28 U.S.C. § 1404(a)

Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought[.]” 28 U.S.C. § 1404(a). “Section 1404(a) reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). The purpose of section 1404(a) is to “prevent the waste of time, energy, and money to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” Id.(simplified).

Under section 1404(a), the court has “discretion . . . to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness.” StewartOrg., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen, 376 U.S. at 622). “In the typical case not involving a forum-selection clause, a district court considering a § 1404(a) motion . . . must evaluate both the convenience of the parties and various public-interest considerations.” Atlantic Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 62 (2013). However, as the Supreme Court explained in Atlantic Marine, where the parties' contract contains a forum-selection clause, “[t]he calculus changes.” Id. at 63. A valid forumselection clause “protects [the parties'] legitimate expectations and furthers vital interests of the

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justice system” and should therefore “be given controlling weight in all but the most exceptional cases.” Id. (simplified). “When parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation.” Id. at 64. Accordingly, courts “must deem the private-interest factors to weigh entirely in favor of the preselected forum” and only consider argument about public-interest factors. Id.

Courts have applied the Atlantic Marine “new calculus” analysis if the forum-selection clause mandates that suits be brought in a particular forum and plaintiff disregards that contractually agreed-upon choice by filing elsewhere. Found. Fitness Prod., LLC v. Free MotionFitness, 121 F.Supp.3d 1038, 1043 (D. Or. 2015). If, however, the contract simply allows but does not mandate that the parties bring suit in a particular forum, “a majority of federal courts have rejected the analysis employed by the Supreme Court in Atlantic Marine, and have instead applied the traditional analysis.” Id.

II. Permissive or Mandatory Forum-Selection Clause

The first task, then, is to determine whether the forum-selection clause in this diversity case is permissive or mandatory, which is a question of contract interpretation governed by federal law.^[2] See Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir. 1987); Summit Foods, Inc. v. Viking Packaging Techs., Inc., No. 3:18-cv-1470-SI, 2018 WL 4690364, at *2 (D. Or. Sept. 28, 2018)

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(“Federal law governs the interpretation of forum selection clause in a diversity case.”) (citing Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 513 (9th Cir. 1988)). When interpreting a contract, its plain language “should be considered first.” KlamathWater Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999). “A written contract must be read as a whole and every part interpreted with reference to the whole, with preference given to reasonable interpretations.” Id. A contract “is only ambiguous if reasonable people could find its terms susceptible to more than one interpretation.” Id.

“To be mandatory, a forum selection clause must contain wording suggesting that the parties intended to designate the specified forum as the exclusive forum.” Summit Foods, 2018 WL 4690364, at *2 (emphasis in original) (citing N. Cal. Dist. Of Laborers v. Pittsburg-DesMoines Steel Co., 69 F.3d 1034, 1037 (9th Cir. 1995)); Docksider, Ltd. V. Sea Tech., Ltd., 875 F.2d 762, 764 (9th Cir. 1989)). “When the forum selection clause specifies only one permissible jurisdiction, however, the clause will generally not be enforced without some further language indicating the parties' intent to make the named jurisdiction exclusive.” Summit Foods, 2018 WL 4690364, at *2 (citation omitted).

Here, the forum-selection clause states that actions “arising out of or relating to this Agreement may be instituted exclusively in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York[.]” Eisbrouch Decl., Ex. A at 2, ECF 18-1 (emphasis added). Although the phrase “may be instituted” could, in isolation, be interpreted as a permissive clause, it is further...