Gina Bowman v. Kona University Inc et al, No. 2:2013cv03873 - Document 13 (C.D. Cal. 2013)
Court Description: ORDER GRANTING MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(3) 4 by Judge Dean D. Pregerson. (MD JS-6. Case Terminated). (lc). Modified on 7/23/2013 (lc).
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Gina Bowman v. Kona University Inc et al Doc. 13 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GINA BOWMAN, an individual, 12 13 14 15 Plaintiff, v. KONA UNIVERSITY, INC., a Hawaii corporation doing business in California, 16 17 18 Defendant. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-03873 DDP (AGRx) ORDER GRANTING MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(3) [Dkt. No. 4] Presently before the court is Defendant’s Motion to Dismiss or 19 Transfer (“Motion”). Having considered the submissions of the 20 parties, the court grants the motion and adopts the following 21 order. 22 I. Facts 23 Plaintiff Gina Bowman is a resident of Los Angeles, 24 California. 25 is a Hawaii corporation that also does business in California. 26 (Id. at ¶¶ 1-2.) 27 28 (Complaint ¶ 1.) Defendant, Kona University (“Kona”), In 2006, Plaintiff began working at Kona as a logistics coordinator and trainer. (Id. at ¶ 2.) Aside from the occasional Dockets.Justia.com 1 trips to Kona’s headquarters in Hawaii, Plaintiff worked in 2 California. 3 marketing manager. 4 President, Matthew James (“James”), complimented the Plaintiff on 5 her job performance and told her “Don’t go and get pregnant or 6 anything.” 7 pregnant. 8 9 (Id.) (Id.) In November 2011, Plaintiff was promoted to (Id. at ¶ 3.) In December 2011, Kona’s Unbeknownst to James, Plaintiff was already (Id.) In January 2012, Plaintiff was told she would be temporarily relegated to her previous position and would revert back to 10 marketing manager in July 2012. 11 demotion, 12 her revelation, Plaintiff received a demotion to a part-time, 13 online training position. 14 reinstatement to marketing manager arrived, she was, instead, 15 informed via e-mail that Kona was going to lose its accreditation 16 and that she was being let go. 17 (Id.) Following the temporary Plaintiff revealed to James that she was pregnant; upon (Id.) When the date for Plaintiff’s (Id.) Plaintiff initiated this action against Kona on February 22, 18 2013, alleging (1) gender/pregnancy discrimination in violation of 19 California Government Code Section 12940, (2) wrongful termination 20 in violation of public policy, (3) retaliation, (4) negligence, and 21 (5) negligent infliction of emotional distress. 22 Defendant now moves to dismiss the action for improper venue 23 on the basis of a forum selection clause in Plaintiff’s employment 24 contract that designates Hawaii as the forum for any related 25 litigation. In the alternative, Defendant asks that this court 26 transfer this matter to the District of Hawaii. 27 /// 28 /// 2 1 II. Legal Standard 2 A forum selection clause can properly be enforced through a 3 motion to dismiss for improper venue under Federal Rule of Civil 4 Procedure 12(b)(3). Arguenta v. Banco Mexicano, S.A., 87 F.3d 320, 5 324 (9th Cir. 1996). Forum selection clauses are presumptively 6 valid and should be honored “absent some compelling and 7 countervailing reason.” Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 8 12 (1972). The party challenging the clause bears a “heavy burden 9 of proof” and must “clearly show that enforcement would be 10 unreasonable and unjust, or that the clause was invalid for such 11 reasons as fraud or over-reaching.” Id. at 15. 12 III. Discussion 13 There are two types of forum selection clauses: mandatory and 14 permissive. 15 Des Moines Steel Co., 69 F.3d 1034, 1036-37 (9th Cir. 1995). “A 16 mandatory forum selection clause is presumed valid and is to be 17 strictly enforced. A permissive forum selection clause, on the 18 other hand, simply means that the parties consent to the 19 jurisdiction of the designated forum.” Hsu, et al. v. OZ Optics 20 Limited, 211 F.R.D. 615, 618 (N.D. Cal 2002) (internal citation 21 omitted). 22 clearly designates a forum as the exclusive one.” Laborers, 69 F.3d 23 at 1036-37. The language in Plaintiff’s contract is mandatory 24 because it contains exclusive language that “any legal actions . . 25 . shall be filed in the Hawaii judicial system only.” (James Decl., 26 Ex. 3)(emphasis in original.) 27 applies to any legal actions “pertaining to . . . the employment” 28 of Plaintiff. (Id.) Northern Cal. Dist. Council of Laborers v. Pittsburgh- “To be mandatory, a clause must contain language that Moreover, the forum selection clause 3 Plaintiff does not contest that the language of the forum 1 2 selection clause is mandatory. Rather, Plaintiff argues that the 3 clause is unreasonable, and therefore unenforceable. A mandatory 4 forum selection clause can be invalidated if: (1) “the inclusion of 5 the clause in the agreement was the product of fraud or 6 overreaching;” (2) “the party wishing to repudiate the clause would 7 effectively be deprived of his day in court were the clause 8 enforced;” and (3) “enforcement would contravene a strong public 9 policy of the forum in which suit is brought.” Bremen, 407 U.S. at 10 12. 11 invalidated for all of these reasons.1 Plaintiff argues that the forum selection clause should be 12 A. Fraud 13 A forum selection clause can be invalidated if the agreement 14 to it was a product of fraud or unequal bargaining power. Bremen, 15 407 U.S. at 12. 16 allegations” without any evidentiary support. 17 Siegler Mgmt. Servs. Co., Inc., 926 F.2d 865, 868 (9th Cir. 1991) 18 This requires more than “broad and conclusory Spradlin v. Lear Here, Plaintiff argues that she was compelled to sign the 19 agreement containing the clause as a condition of her employment 20 and had no opportunity to negotiate the terms of the contract. 21 (Opp. at ¶ 3; Bowman Decl. at ¶ 3.) Although Plaintiff alleges 22 23 24 25 26 27 28 1 Plaintiff also argues that the forum selection clause is invalid because it was chosen for the purely strategic reason of discouraging Plaintiff from pursuing her claims. (Opp. to Mot. to Dismiss ¶¶ 3-4.) In support of this claim, Plaintiff cites to Bolter v. Superior Court, 104 Cal. App.4th 900, 909 (2001). Plaintiff cites no evidence, however, that this was the only reason for the Defendant’s choice of Hawaii. Plaintiff further ignores that the University is located in Hawaii, that several potential witnesses are located there, and that the contract was executed there. Moreover, Bolter analyzed the terms of an arbitration agreement, not a forum selection clause. 4 1 undue bargaining power, the facts do not support her claim. 2 provides affidavits from other employees, all of whom negotiated 3 various parts of their contracts. (Supplemental James Decl. ¶¶ 2-3; 4 Decl. of Nicolas Rave in Support of Defendant’s Motion; Decl. of 5 Michelle Quint (known as Maykala Leone) in Support of Defendant’s 6 Motion ¶ 1; Decl. Of Farhad Saba in Support of Defendant’s Motion ¶ 7 1.) Indeed, Plaintiff herself was able to successfully renegotiate 8 terms of her contract, such as her salary and commission. 9 (Supplemental James Decl. ¶ 2.) Kona Moreover, Plaintiff does not 10 demonstrate any significant evidence of compulsion that would make 11 the clause invalid. 12 selection clause valid even though the plaintiff signed an 13 agreement in order to be released from custody after hearing an 14 associate being beaten in the room next door). 15 16 See Arguenta, 87 F.3d at 325 (finding a forum Thus, Plaintiff has not shown that the forum selection clause should be invalidated due to fraud or unequal bargaining power. 17 B. Deprivation of a Day in Court 18 To demonstrate that enforcing a forum selection clause would 19 deprive a party of her day in court, a party must show that the 20 selected forum makes it “an impossibility for her to try her case, 21 not simply a less convenient or effective means of doing so.” Pratt 22 v. Silversea Cruises, Ltd., Inc., C 05-0693 SI, 2005 WL 1656891 23 (N.D. Cal. July 13, 2005); See also Central Contracting Co. v. 24 Maryland Casualty Co., 367 F.2d 341, 344 (3d Cir.1966)(“Mere 25 inconvenience or additional expense is not the test for 26 unreasonableness.”) 27 28 The Ninth Circuit has held that a combination of financial troubles and physical disability suffered by the plaintiff could 5 1 bar a plaintiff from litigating his claim if he were held to a 2 forum selection clause. 3 1133, 1143 (9th Cir. 2004). 4 resident, was a disabled sixty-one year old who had used all of his 5 and his wife's disability payments to pay outstanding bills, and 6 had no disposable income. Id. at 1142. In addition, the plaintiff 7 could not drive to Wisconsin, the venue designated in the forum 8 selection clause, because of a physical disability that prevented 9 him from sitting for long periods of time 10 Murphy v. Schneider Nat'l, Inc., 362 F.3d In Murphy, the plaintiff, an Oregon Id. at 1143. While Murphy recognized a combination of factors sufficient to 11 render a forum selection clause invalid, “neither severe physical 12 limitation nor economic hardship alone is generally enough” to 13 render a forum so gravely inconvenient as to warrant invalidating a 14 forum selection clause. Pratt v. Silversea Cruises, Ltd., Inc., 15 2005 WL 1656891 *3 (N.D. Cal. July 13, 2005).2 However, some 16 situations of extreme financial difficulty may warrant invalidation 17 of a forum selection clause. 18 Seafoods Corp., the difference in cost between the venue designated 19 in the forum selection clause and the plaintiff’s home forum would 20 have been, by a conservative estimate, “the equivalent of nearly 21 twenty-one months of Plaintiff's income.” Utoafili v. Trident 22 Seafoods Corp., 09-2575 SC, 2009 WL 4545175 (N.D. Cal. Nov. 30, 23 2009). For example, in Utoafili v. Trident Because this difference was severe enough that enforcement 24 25 2 26 27 28 Some courts have interpreted Murphy to require both disability and financial harship. See, e.g. Samain v. Advent Prod. Dev., EDCV 08-980VAP(PLAX), 2008 WL 4501497 (C.D. Cal. Sept. 30, 2008)(“[A]lthough it is a compelling reason to deny transfer, financial hardship, alone, is insufficient to deprive an individual of his day in court.”). 6 1 of the forum selection clause would be prohibitive and 2 fundamentally unfair, the court denied the motion to dismiss. 3 Id. A party claiming extreme financial difficulty, cannot, 4 however, simply make bare assertions of “dire financial 5 situation[s]” or “significant financial hardship.” Holck v. Bank of 6 New York Mellon Corp., 769 F. Supp. 2d 1240, 1252 (D. Haw. 2011); 7 Ziya v. Global Linguist Solutions, LLC, CV10-2021-PHX DGC, 2011 WL 8 5826081 (D. Ariz. Nov. 18, 2011)(explaining that a lack of 9 specifics as to plaintiff’s financial hardship precluded finding 10 that a forum selection clause was unreasonable); Effron v. Sun Line 11 Cruises, Inc., 67 F.3d 7, 11 (2d Cir. 1995)(holding that a forum 12 selection clause would not be negated by plaintiff's “conclusory 13 assertions that she cannot afford to travel to Greece, that she 14 would be afraid to stay at a strange city, that she does not know 15 any Greek lawyers, etc,” because unsupported statements do not meet 16 the “heavy burden of proof” required). 17 Here, Plaintiff argues that requiring her to litigate in 18 Hawaii would preclude her from pursuing her claim because of the 19 expense incurred. 20 also states that her obligations to her two children would preclude 21 her from litigating in Hawaii. 22 (Opp. at ¶ 3; Bowman Decl. at ¶ 6.) Plaintiff (Id.) The court cannot conclude from the evidence presented that 23 Plaintiff will be deprived of her day in court if the forum 24 selection clause is upheld. 25 has not alleged a combination of physical and financial hardship 26 that would preclude her from pursuing her claim in Hawaii. Instead, 27 Plaintiff has alleged solely financial hardship. 28 evidence of such difficulties, however, is scant, vague, and does Unlike the plaintiff in Murphy, Bowman 7 Plaintiff’s 1 not rise to the extreme levels shown in cases such as Utoafili or 2 Murphy. Unlike those plaintiffs, who provided detailed accounts of 3 income and expenses for litigation, Plaintiff here does not expand 4 upon the bare assertion that she is unable to afford litigation in 5 Hawaii, and has not demonstrated that enforcing the forum selection 6 clause would prevent her from having her day in court. 7 C. Public Policy 8 Enforcement of a forum selection clause should be denied if it 9 would “contravene a strong public policy of the forum in which the 10 suit is brought.” Bremen, 407 U.S. at 15. A state’s public policy 11 interest will “not be contravened as long as [a plaintiff] has some 12 legitimate remedy” for his or her claim. 13 Inc., 882 F. Supp. 947, 950 (E.D. Cal. 1995)(explaining that 14 requiring litigation of an age discrimination claim in Illinois 15 instead of California would not undermine California’s public 16 policy because Illinois had a similar remedy). 17 Flake v. Medline Indus., Here, the Plaintiff argues that relocating the forum to Hawaii 18 would contravene California public policy in favor of allowing 19 individuals to vindicate their employment-related rights, such as 20 those enshrined in California’s Fair Employment and Housing Act. 21 (Opp. at ¶ 3.) 22 Requiring Plaintiff to litigate this claim in Hawaii would not 23 contravene California’s interest in preventing discrimination. 24 Hawaii law (Haw. Rev. Stat. 25 which, like California, allows for contract, compensatory, and 26 punitive damages. 27 necessarily preclude Bowman from pursuing claims of pregnancy 28 discrimination under federal law (42 U.S.C. § 2000e(k)) or §§ 368-1, 368-17, 378-1, 378-2, 378-5) Furthermore, proceeding in Hawaii would not 8 1 California law.3 2 protecting its citizens, litigating Plaintiff’s claims in Hawaii 3 would not subvert California’s public policy. 4 IV. Conclusion 5 Thus, while California does have an interest in For the reasons stated above, the Plaintiff has not met her 6 heavy burden of proof to demonstrate that the mandatory forum 7 selection clause is invalid. 8 therefore, GRANTED.4 Defendant’s Motion to Dismiss is, 9 10 IT IS SO ORDERED. 11 12 Dated: July 23, 2013 DEAN D. PREGERSON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 The forum selection clause states that the interpretation of the employment agreement shall be governed by Hawaii law “applicable to contracts executed and to be entirely performed within the state.” (James Decl., Ex. C ¶ 15.) To the extent that Defendant suggests that this limits Bowman’s state law claims to those brought under Hawaii law, this court takes no position on the matter. (Reply at 8). 4 Having granted Defendant’s Motion to Dismiss, the court does not address arguments related to transfer under 28 U.S.C. § 1404. 9
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