Putnam v. Perficient, Inc.

• Decision Date: 20 July 2022
• Docket Number: CIVIL 4:21-CV-00739-SDJ-CAN
• Parties: JASON PUTNAM, Plaintiff, v. PERFICIENT, INC., Defendant,
• Court: U.S. District Court — Eastern District of Texas

JASON PUTNAM, Plaintiff,
v.
PERFICIENT, INC., Defendant,

CIVIL No. 4:21-CV-00739-SDJ-CAN

United States District Court, E.D. Texas, Sherman Division

July 20, 2022

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHRISTINE A. NOWAK UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendant Perficient, Inc.'s Motion to Transfer Venue [Dkt. 6]. Defendant asks to transfer this matter to the Eastern District of Missouri pursuant to a forum selection clause in Plaintiff's “Confidentiality, Restrictive Covenant and Inventions Agreement.” Plaintiff opposes the request, contending: (1) Plaintiff's disability discrimination claims are outside of the scope of the forum selection clause; and (2) the ADA's special venue provision makes the forum selection clause unenforceable [Dkt. 8 at 13, 16]. Plaintiff also advances both the private and public interest factors weigh against transfer. After reviewing the Motion to Transfer [Dkt. 6], Plaintiff's Response [Dkt. 8], Defendant's Reply [Dkt. 9], Plaintiff's Sur-Reply [Dkt. 11], and all other relevant filings, the Court recommends Defendant's Motion to Transfer be DENIED as set forth herein.

BACKGROUND

On August 27, 2021, Plaintiff Jason Putnam (“Plaintiff”) filed suit in the 199th Judicial District Court, Collin County, Texas against his former employer Defendant Perficient, Inc. (“Defendant”) alleging disability discrimination [Dkts. 1-1; 3]. After removal to this District (and after the filing of Defendant's Motion to Transfer), on October 28, 2021, Plaintiff filed his First

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Amended Complaint asserting claims under both federal and state law, specifically “under the Texas Commission on Human Rights Act (“TCHRA”) [Texas Labor Code Chapter 21] and the Americans with Disabilities Act (“ADA”) [42 U.S.C. 12101 et. seq.]” [Dkt. 7 at 1].

Defendant is a digital and information-technology consulting firm incorporated in Delaware and based in Missouri, with offices in Texas [Dkts. 1-3 at 1; 6 at 1]. Plaintiff, a Texas resident, was hired by Defendant in November 2018 as a Strategic Account Manager [See Dkt. 61 at 6]. Plaintiff worked remotely while occasionally reporting to a Perficient Office, specifically, Defendant's headquarters for its North Texas operations at 5340 Legacy Drive, Ste. 125 Plano, Collin County, Texas (the “Plano Office”), which is located in the Eastern District of Texas [Dkts. 6 at 1; 7 at 3, 7]. Plaintiff's live complaint pleads that, on or about January 25, 2019, Plaintiff suffered from a seizure while giving a presentation to the sales team [Dkt. 7 at 8]. Plaintiff alleges that after this incident, Defendant's employees began treating him differently [Dkt. 7 at 10]. Plaintiff alleges Defendant obtained medical information from his neurologist, including his seizure disorder diagnosis, which Plaintiff alleges constitutes a disability, and the medical precautions he was directed to take-including no driving [Dkt. 7 at 8]. Notwithstanding the precautions dictated by his neurologist, after the incident, Plaintiff's travel was increased as he was required to come into the Plano Office more often, and Defendant's employees were directed not to reach out, assist, or communicate with Plaintiff [Dkt. 7 at 10]. These actions caused Plaintiff significant stress and worsened his medical condition [Dkt. 7 at 11]. Due to a medication intolerance and increasing seizures, Plaintiff was approved for medical leave [Dkt. 7 at 11]. While on leave, a human resources representative informed Plaintiff his employment would likely be terminated upon his return to work due to poor job performance and because he had not been employed long enough to trigger leave under FMLA [Dkt. 7 at 11-12]. Plaintiff pleads Defendant

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should have known leave may be a reasonable accommodation for a disability [Dkt. 7 at 15]. Plaintiff's employment with Defendant was ultimately terminated upon his return to work [Dkt. 7 at 12].

Relevant to the instant Motion, Plaintiff pleads venue is proper in the Eastern District of Texas under both the ADA and general venue statute because Defendant hired Plaintiff in Texas, employed Plaintiff in Texas, fired Plaintiff in Texas, and committed unlawful employment practices in Texas, and because Defendant has offices in Texas, employs persons in Texas, and services clients in Texas [Dkt. 7 at 4-5]. Defendant urges to the contrary that upon being hired Plaintiff signed a “Confidentiality, Restrictive Covenant and Inventions Agreement” (“Agreement”) containing a valid forum selection clause (“FSC”), which covers Plaintiff's claims and mandates a transfer of venue; the Agreement states, in pertinent part:

Employment and Duties

1. The employment relationship between the Company and Employee is at-will, i.e., it is not of a definite term and will continue only so long as both Employee and the Company wish for it to continue

2. Employee owes a duty of loyalty, confidentiality and allegiance to act at all times In the best interests of the Company. Employee agrees not to do any act which would Injure the Company's business, Interests, or reputation

General Provisions

22. Employee agrees that no modification to this Agreement is valid unless it is in writing and signed by an authorized representative of the Company.

23. The Employee acknowledges and agrees that this Agreement is made, formed and accepted in the State of Missouri and the interpretation, validity and effect of this Agreement shall be governed by the laws of the State of Missouri without regard to its conflicts of laws principles, or any rule or decision that would apply the substantive laws of another jurisdiction.

24. ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT SHALL BE INSTITUTED AND

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LITIGATED EXCLUSIVELY IN THE COURTS OF THE STATE OF MISSOURI LOCATED IN THE COUNTY OF ST. LOUIS (OR, IF THERE IS JURISDICTION, THEN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE EASTERN DISTRICT OF MISSOURI), AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. ALL PARTIES IRREVOCABLY AND UNCONDITIONALLY AGREE THAT VENUE IN SUCH COURTS IS PROPER AND WAIVE ANY CLAIM THAT VENUE IN SUCH COURTS IS NOT PROPER, THAT IT IS AN INCONVENIENT FORUM, OR THAT THE CASE SHOULD BE TRANSFERRED TO ANOTHER FORUM.

[Dkt. 6-1 at 2, 5-6].

MOTION TO TRANSFER

Applicable Legal Standard

28 U.S.C. § 1404(a) governs the Court's decision whether to give effect to the FSC. Section 1404(a) provides: “[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 or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). Ordinarily, deciding a § 1404(a) motion to transfer venue, requires a two-part inquiry: first, whether the action to be transferred might have been brought in the transferee court; and second, whether considering the convenience of the parties and witnesses, and the interest of justice a transfer is appropriate. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). “Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.'” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). But when the parties have agreed to a valid forum-selection clause this analysis changes, and a district court should ordinarily transfer the case to the forum specified in that clause.” Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 62 (2013).

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Indeed, “a valid forum-selection clause should be given controlling weight in all but the most exceptional cases.” Id. at 63 (internal quotations marks and citations omitted). The Supreme Court has made clear that its “analysis presuppose[d] a contractually valid forum-selection clause.” Id. at 62 n.5. Thus, before applying this modified analysis, a court must determine whether a valid and enforceable forum selection clause applies to the parties' dispute; stated differently, the inquiry into a clause's validity and scope thus precedes the question of transfer pursuant to that clause. See, e.g., Indus. Print Techs. LLC v. Canon U.S.A., Inc., No. 2:14-CV-00019, 2014 WL 7240050, at *1-2 (E.D. Tex. Dec. 19, 2014) (“[T]he Atlantic Marine analysis ... presupposes a valid contract and a dispute that unquestionably falls within the scope of that contract.”).^[1]

Choice of Law

Defendant does not substantively brief the choice of law issues in this case. Federal law governs the enforceability of a forum selection clause, Haynsworth v. The Corp., 121 F.3d 956, 962 (5th Cir. 1997); however, the question of enforceability is distinct from the issue of interpretation. Plaintiff advances the Parties have agreed Missouri law applies to determine scope. While Defendant initially urged Texas and Fifth Circuit authority in its Motion to Transfer Venue, in its Reply, Defendant seemingly concedes Missouri law governs the Court's scope analysis. “[T]o interpret the meaning and scope of a forum selection clause, a court must use the forum's choice of law rules to determine what substantive law governs.” See Weber, 811 F.3d at 770-71;

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Barnett v. DynCorp Int'l, LLC, 831 F.3d 296, 304 (5th Cir. 216); Patrick Henry Med., LLC v. Prochant, Inc., No. 4:21-cv-00430, 2021 WL 5578680, at *3 (E.D. Tex. Nov. 29, 2021) (“[A] court sitting in diversity applies the forum's choice of law rules to determine what substantive law should guide the court's interpretation of the forum selection clause.”). Texas choice of law rules, therefore, apply. The Agreement contains a choice-of-law provision, stating: “this...