Thomas v. Rehabilitation Services of Columbus

• Decision Date: 19 March 1999
• Docket Number: No. 1:98-CV-134-2(WLS).,1:98-CV-134-2(WLS).
• Parties: Burnette THOMAS, Plaintiff, v. REHABILITATION SERVICES OF COLUMBUS, INC., Defendant.
• Court: U.S. District Court — Middle District of Georgia

45 F.Supp.2d 1375

Burnette THOMAS, Plaintiff, v. REHABILITATION SERVICES OF COLUMBUS, INC., Defendant.

No. 1:98-CV-134-2(WLS).

United States District Court, M.D. Georgia, Albany Division.

March 19, 1999.

Maurice L. King, Jr., Albany, GA, for Burnette Thomas, plaintiff.

James E. Humes, II, Columbus, GA, for Rehabilitation Services of Columbus, Inc., defendant.

ORDER

SANDS, District Judge.

Plaintiff Burnette Thomas ("Thomas") filed her complaint in the above-entitled action for legal and equitable remedies for alleged violations of her civil rights by Defendant Rehabilitation Services of Columbus, Inc. ("Rehabilitation Services"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. Thomas, who is a black female over forty years old, alleges that Rehabilitation Services unlawfully discriminated against her because of her race and age in demoting her to another position. Thomas further alleges that Rehabilitation Services retaliated against her after she objected to the alleged discrimination. Rehabilitation Services filed an answer, and in conjunction with its answer, has filed a Motion to Dismiss based upon its contention that venue and jurisdiction is improper in this Court. For the reasons set forth below, the Court holds that Rehabilitation Services' motion should be denied.

DISCUSSION

Rehabilitation Services contends that Thomas agreed to a forum selection clause as part of her employment contract. According to Rehabilitation Services, the forum selection clause in the contract provides that if Thomas sues the firm, she must file her suit in the state or federal courts of Muscogee County, Georgia. Rehabilitation Services argues that "both venue and jurisdiction over the person of the Parties is inappropriate in the [Albany] Division of the Middle District," Def.'s Mem.Supp.Mot. Dismiss at 2, and has moved to dismiss Thomas' complaint in order to enforce the forum selection clause in the contract.

Thomas objects to Rehabilitation Services' motion and insists that both jurisdiction and venue are proper in this Court.

I Jurisdiction

Rehabilitation Services contends that this Court lacks "jurisdiction of the person," Def.'s Mot. Dismiss, and by this assertion apparently moves to dismiss the complaint under Rule 12(b)(2) of the Federal Rules of Civil Procedure.

In its answer, Rehabilitation Services admits that at all times relevant to the complaint, it was a corporation in the State of Georgia, with an address listed in Columbus, Georgia, and doing business within this judicial district. Ans. Fourth Defense ¶ 4. Rehabilitation Services further admits "that the Defendant has agreed to submit herself (sic) to Jurisdiction and Venue of Courts in Muscogee County, Georgia, for the type complaint filed in this case and that venue is appropriate only in Muscogee County, Georgia." Id. ¶ 2 (emphasis added). The latter admission evidently refers to the forum selection clause allegedly agreed upon between the parties in the employment contract.

This Court manifestly has personal jurisdiction over Rehabilitation Services on either basis, even assuming, arguendo, that the forum selection clause is valid and binding upon the parties. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). Accordingly, the Court holds that Rehabilitation Services' motion to dismiss for lack of personal jurisdiction should be denied.

II Venue

As noted above, Rehabilitation Services asserts in its answer "that venue is appropriate only in Muscogee County, Georgia," Ans. Fourth Defense ¶ 2, and now moves to dismiss the complaint because venue is improper. Although the defendant has not specified the statutory basis for its motion, the Court shall consider the motion to dismiss as one brought pursuant to Rule 12(b)(3). See Lipcon v. Underwriter's at Lloyd's, London, 148 F.3d 1285, 1289-90 (11th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 851, 142 L.Ed.2d 704 (1999) (explaining that Rule 12(b)(3) is the appropriate vehicle for raising a motion to dismiss for improper venue on the basis of a forum selection clause). Since Rule 12 plainly permits a party to make by motion certain enumerated defenses "in law or fact," the Court may consider matters outside the pleadings, particularly when the motion is predicated upon key issues of fact. Of course, when a party moves for dismissal for failure to state a claim under subsection (6), the rule specifically provides that if the Court considers matters outside the pleadings, the Court is required to convert the motion to one for summary judgment under Rule 56 and serve notice upon the parties so that they may present all material made pertinent to such a motion. For defenses raised under subsections (1) through (5), however, the Court may consider matters outside the pleadings, and often must do so, since without aid of such outside materials the Court would be unable to discern the actual basis, in fact, of a party's challenge to the bare allegation in the complaint that, as here, venue is proper in this Court. Transmirra Prods. Corp. v. Fourco Glass Co., 246 F.2d 538-39 (2nd Cir. 1957) (resolving motion to dismiss because of improper venue "in the usual manner on affidavits, here supplemented by answers to interrogatories, and a deposition from one of the defendant's employees in the district, rather than by a full trial"); Exchange Nat'l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2nd Cir.1976) (explaining use of outside materials to resolve motion to dismiss under Rule 12(b)(1)); see generally, 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1364 (2nd ed.1990).

Rehabilitation Services contends that Thomas agreed to a forum selection clause by virtue of signing a form, entitled "Acknowledgment of Receipt and Understanding of the RSOC Employee Handbook" (hereinafter "the Acknowledgment form").¹ According to the affidavit filed by Roger W. Butterbaugh, Director, Human Resources of Rehabilitation Services, "[e]ach employee of [Rehabilitation Services] is asked to acknowledge receipt and understanding of the Defendant's Handbook and, at the same time, agree to the aforesaid provision regarding where the employee should sue the Defendant, if the employee chose to do so." Butterbaugh Aff. ¶ 4. Rehabilitation Services argues that by signing the Acknowledgment form on September 7, 1997, Thomas agreed to the forum selection clause, apparently as part of or in the course of maintaining her employment contract. Def.'s Mem.Supp. Mot. at 2.

Assuming, arguendo, that Thomas' signature on the Acknowledgment form constitutes a contractual agreement to limit her choice of venue to either the State or Federal Courts located in Muscogee County, Georgia, the Court concludes that the forum selection clause should not be enforced in this action on two separate, yet related, grounds.

1. Transfer Pursuant to the Forum Selection Clause Is Unwarranted

Although Rehabilitation Services has moved simply for dismissal, the appropriate procedural vehicle to enforce the forum selection clause at issue here is one to dismiss, pursuant to Rule 12(b)(3), or in the alternative, to transfer, pursuant to 28 U.S.C. § 1404(a). Compare Haskel v. FPR Registry, Inc., 862 F.Supp. 909, 913-16 (E.D.N.Y.1994) (explaining that if transfer to another federal forum is appropriate under the terms of the forum selection clause at issue, the proper procedure for enforcing the forum selection clause is through a motion to transfer, pursuant to § 1404(a)); with International Software Systems, Inc. v. Amplicon, Inc., 77 F.3d 112, 115 (5th Cir.1996) (explaining that if transfer to another federal forum is foreclosed by the terms of a forum selection clause that limits the agreed upon venue to a state court, the proper procedure for enforcing the forum selection clause is through a motion to dismiss pursuant to Rule 12(b)(3)). It is important to note, at the outset, that based on the allegations in the complaint, as supplemented by the materials filed in connection with the instant motion, venue is proper in this Court. 28 U.S.C. § 1391(b). Moreover, if the Court instead determines that Rehabilitation Services' motion should be granted, the proper remedy would be to transfer the case to the Columbus Division of the Middle District of Georgia, as the forum selection clause permits. 28 U.S.C. § 1406(a) (authorizing transfer rather than dismissal "if it be in the interest of justice"). Accordingly, for the purposes of this analysis, the Court shall consider the motion as one for transfer, pursuant to § 1404(a).

Under § 1404(a), a district court may order a case to be transferred to a division where it might have been brought "[f]or the convenience of parties and witnesses, or in the interest of justice." The Supreme Court has interpreted § 1404(a) as vesting the responsibility with the district court to "adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness," and thereby consider a number of case-specific factors which may bear on the motion. Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2244, 101 L.Ed.2d 22 (1988) (quotation and citation omitted). That individualized assessment of the motion "encompasses consideration of the parties' private expression of their venue preferences," such that, to paraphrase the high Court's instruction, this Court must address such issues as the convenience of the Columbus Division given their apparent expressed preference for that venue, as well as "the fairness of transfer in light of the forum-selection clause and the parties' relative bargaining power." Id. at 29-30, 108 S.Ct. at 2244.

Even assuming that Thomas...