Weiss v. Columbia Pictures Television, Inc.

• Decision Date: 28 September 1992
• Docket Number: No. 92 Civ. 2458 (PKL).,92 Civ. 2458 (PKL).
• Citation: 801 F. Supp. 1276
• Parties: Herbert O. WEISS, Plaintiff, v. COLUMBIA PICTURES TELEVISION, INC. and Sony Pictures Entertainment, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

801 F. Supp. 1276

Herbert O. WEISS, Plaintiff, v. COLUMBIA PICTURES TELEVISION, INC. and Sony Pictures Entertainment, Inc., Defendants.

No. 92 Civ. 2458 (PKL).

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

September 28, 1992.

Vladeck, Waldman, Elias & Engelhard, P.C., New York City (Julian R. Birnbaum, Stuart L. Lichten, of counsel), for plaintiff.

Marks & Murase, New York City (Lance Gotthoffer, of counsel), for defendants Columbia Pictures Television, Inc. and Sony Pictures Entertainment, Inc.

ORDER AND OPINION

LEISURE, District Judge.

This age discrimination action is currently before the Court on the motion of defendant Columbia Pictures Television, Inc. ("Columbia"), joined by defendant Sony Pictures Entertainment, Inc. ("Sony"), for an order of transfer to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1404(a). For the following reasons, defendants' motion is hereby granted.

BACKGROUND

Plaintiff Herbert O. Weiss ("Weiss") filed this age discrimination action in this Court, charging that defendant Columbia's decision not to extend his employment agreement violated the Federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and a related state statute. Columbia is a Los Angeles based entertainment company that produces and syndicates television programs. Prior to his termination, Weiss was Columbia's Vice President responsible for Eastern Regional television sales. His office was located in New York, New York.

Weiss began his employment with Columbia in 1980 but apparently did not have a written employment contract until early 1991, when Columbia and Weiss executed an agreement dated March 1, 1990. As executed, the agreement provided for Weiss' employment through December 31, 1991. In August 1991 Weiss was advised that his contract would not be renewed, and he was asked to vacate his office the following month.

The employment agreement included a forum selection clause designating the state and federal courts located in Los Angeles, California, as the exclusive fora for any disputes arising out of Weiss' employment or the termination thereof. The clause provides in pertinent part:

11. Governing Law, Legal Proceedings and Remedies.

....

(b) Any and all actions, suits or legal proceedings of any nature (whether sounding in contract or in tort) arising out of or relating to this Agreement, to the employment of Employee by the Company or to the termination of such employment shall be initiated and maintained only in a state or federal court located in the city and county of Los Angeles, State of California, which shall be the exclusive forum for, and shall have the sole and exclusive jurisdiction over the subject matter of, all such proceedings. The Company and Employee hereby submit and subject themselves irrevocably to the personal jurisdiction of such California state and federal courts.

See Declaration of Jennifer A. Glazer, dated June 15, 1992 ("Glazer Declaration"), Exhibit B. Defendants rely on the forum selection clause and other factors in asserting that transfer is appropriate under 28 U.S.C. § 1404(a). Weiss argues that California is an inconvenient forum and the public policy underlying his action will be frustrated by transfer.

DISCUSSION

Section 1404(a) provides: "For 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." The Supreme Court decision in Stewart Organization, Inc. v. Ricoh Corp. has clarified the analysis to be applied by the district court in considering a motion to transfer an action:

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," Van Dusen v. Barrack, 376 U.S. 612, 622 , 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964). A motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors. The presence of a forum-selection clause such as the parties entered into in this case will be a significant factor that figures centrally in the district court's calculus.

487 U.S. 22, 29, 108 S.Ct. 2239, 2243, 101 L.Ed.2d 22 (1988). While the Court in Stewart Organization ruled that district courts had broader discretion to refuse to enforce a valid forum selection clause than had previously been exercised under the precedent of The Bremen v. Zapata Offshore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), the above-quoted language demonstrates that the Court did not intend to disturb the general rule that forum selection clauses are regularly enforced.¹ See, e.g., Carnival Cruise Lines, Inc. v. Shute, ___ U.S. ___, ___, 111 S.Ct. 1522, 1528, 113 L.Ed.2d 622 (1991); The Bremen, 407 U.S. at 17, 92 S.Ct. at 1917 (respondent must satisfy a "heavy burden of proof" to set aside forum selection clause on grounds of inconvenience); Water Energizers, Ltd. v. Water Energizers, Inc., 788 F.Supp. 208, 212-13 (S.D.N.Y. 1992). The Second Circuit has expressed a strong policy favoring the enforcement of forum selection clauses:

Contractual forum-selection clauses will be enforced unless it clearly can be shown that enforcement "would be unreasonable and unjust, or that the clause is otherwise invalid for such reasons as fraud or overreaching."

Bense v. Interstate Battery Sys. of Am., 683 F.2d 718, 721-22 (2d Cir.1982) (quoting The Bremen, 407 U.S. at 15, 92 S.Ct. at 1916).

The proper methodology for addressing a motion to transfer under section 1404(a) was set out by the Second Circuit in Red Bull Associates v. Best Western International, Inc., 862 F.2d 963 (2nd Cir. 1988). See also Stewart Organization, 487 U.S. at 29-30, 108 S.Ct. at 2243-2244. This Court must determine whether the forum selection clause is valid with reference to the factors specified in section 1404(a): the interests of the parties to the litigation and the public interest, as reflected in the public policy of the forum where the suit is pending. 862 F.2d at 967; see also Paribas Corp. v. Shelton Ranch Corp., 742 F.Supp. 86, 93 (S.D.N.Y.1990); Nat'l Union Fire Ins. Co. v. Landry, 677 F.Supp. 704, 708 (S.D.N.Y.1987).

1. Convenience of the Parties

It is well settled that the burden is on the moving party to establish that there should be a change of forum. See Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). It is clear, however, that the parties' expressed preference for a forum in a forum selection clause is entitled to substantial consideration, even though it is not dispositive. See Stewart Organization, 487 U.S. at 29, 108 S.Ct. at 2243; Water Energizers, 788 F.Supp. at 212. Although deference is normally accorded plaintiff's original choice of forum, First City National Bank & Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989), deference is inappropriate where plaintiff has already contractually chosen the appropriate venue. See In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir.1989) (remand of Stewart Organization); Water Energizers, 788 F.Supp. at 212; Combs & Co. v. Roster Corp., 1989 U.S. Dist. LEXIS 14122, *4-* 5 (S.D.N.Y. Nov. 28, 1989); TUC Electronics, Inc. v. Eagle Telephonics, Inc., 698 F.Supp. 35, 39 (D.Conn. 1988). Instead, once a mandatory choice of forum clause is deemed valid, the burden shifts to the plaintiff to demonstrate exceptional facts explaining why he should be relieved from his contractual duty. Plaintiff has failed to demonstrate such exceptional circumstances in the instant case.

First, it should be noted that Weiss does not seriously contest the validity of the choice of forum clause; rather, he argues that he should be excused from its application in this instance. Weiss has not claimed that there was "fraud, influence, or overweening bargaining power," which would justify a refusal to enforce the choice of forum clause. The Bremen, 407 U.S. at 12-13, 92 S.Ct. at 1914-1915; accord Combs & Co. v. Roster Corp., 1989 U.S. Dist. LEXIS 14122, * 4-* 5 (S.D.N.Y. Nov. 28, 1989); Red Bull Assoc. v. Best Western Int'l, Inc., 686 F.Supp. 447, 451 (S.D.N.Y.), aff'd, 862 F.2d 963 (2d Cir.1988). Nor has Weiss asserted lack of notice as a defense to enforcement of the clause. Moreover, while Weiss claims that Columbia refused to negotiate over the forum selection clause, an allegation disputed by Columbia, mere absence of negotiation over the terms of a contract does not render a forum selection clause unenforceable. See Medoil Corp. v. Citicorp, 729 F.Supp. 1456, 1459 (S.D.N.Y.1990).

Weiss argues that the Central District of California would be an inconvenient forum because he has no occasion to visit Los Angeles and would incur substantial expense in engaging counsel and litigating this case in California. Mere inconvenience and expense of travelling are not, standing alone, adequate reasons to disturb the parties' contractual choice of forum. See Bense, 683 F.2d 718, 720 (2d Cir.1982); First Interstate Leasing Service v. Sagge, 697 F.Supp. 744, 747 (S.D.N.Y.1988).

Weiss also argues that the convenience of witnesses and the availability of process to require their attendance at trial militate in favor of denying defendants' motion to transfer. See Affidavit of Herbert O. Weiss In Opposition to Defendant's Motion to Transfer, dated July 10, 1992 ("Weiss Aff."). Weiss' affidavit lists approximately fifty witnesses who might be called to testify on his behalf, claiming that they reside in New York or have occasion to travel to New York on a regular basis. Thus, he argues that venue is more appropriate in New York than in California. While these witnesses are closer in proximity to New York than to California, they come from such places as Massachusetts (Weiss Aff. ¶ 11(a)), Pennsylvania (Weiss Aff. ¶ 11(b), (...