United States District Court, D. Nebraska
ALLISON J. SCHNEIDER, Plaintiff,
CENERGISTIC LLC, Defendant.
MEMORANDUM AND ORDER
MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the Motion to Transfer Or,
Alternatively, Motion to Dismiss (Filing No. 16)
filed by Defendant, Cenergistic, LLC. Plaintiff, pro se, did
not respond to the motion. For the following reasons, the
Court will grant Cenergistic's motion to transfer this
case to the United States District Court, Northern District
of Texas, Dallas Division.
accepted an offer of employment with Cenergistic on December
20, 2018. (Filing No. 17-2). The offer
letter signed by Plaintiff set forth her compensation,
primary job duties and responsibilities, benefits and leave,
schedule, and a section entitled “Miscellaneous,
” which contained the following provision:
Once signed by both of us below, this is our agreement that:
(1) this offer letter and your employment shall be governed
by Texas law, without reference to conflict of laws
principles; and, (2) ANY LAWSUIT ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS LETTER OR OTHERWISE RELATED TO YOUR
EMPLOYMENT, WILL BE LITIGATED IN A COURT OF COMPETENT
JURISDICTION IN DALLAS COUNTY, TEXAS.
(Filing No. 17-2 at p. 5)(emphasis in original).
Plaintiff began her position with Cenergistic on January 1,
2019, at the University of Nebraska - Lincoln City Campus.
Cenergistic terminated Plaintiff's employment on March
19, 2019. (Filing No. 1).
commenced this action against Cenergistic on September 9,
2019, under Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Equal Pay Act, and the
Nebraska Fair Employment Practices Act, alleging sex and
disability discrimination, and retaliation. (Filing No.
1). Cenergistic has filed the instant motion to transfer
this action to the United States District Court, Northern
District of Texas, Dallas Division, asserting Plaintiff's
claims are encompassed by the mandatory forum selection
clause in Plaintiff's offer letter. Cenergistic
alternatively moves to dismiss Plaintiff's claims for
improper venue under Rule 12(b)(3), or, to dismiss
Plaintiff's Section 1981, Equal Pay Act, and Nebraska
Fair Employment Practices Act claims pursuant to Rules
12(b)(1) and (6). (Filing No. 16; Filing No.
moves to transfer venue under 28 U.S.C. § 1404(a), which
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.” 28 U.S.C. §
1404(a). “When parties have agreed to a valid
forum-selection clause, a district court should ordinarily
transfer the case to the forum specified in that clause. Only
under extraordinary circumstances unrelated to the
convenience of the parties should a § 1404(a) motion be
denied.” Atl. Marine Constr. Co., Inc. v. U.S.
Dist. Ct. for the W. Dist. of Tex., 571 U.S. 49, 62
(2013). “[A] valid forum-selection clause [should be]
given controlling weight in all but the most exceptional
cases.” Id. at 63 (internal citation omitted).
“Forum selection clauses are prima facie valid and are
enforced unless they are unjust or unreasonable or invalid
for reasons such as fraud or overreaching.” M.B.
Rests., Inc. v. CKE Rests., Inc., 183 F.3d 750, 752 (8th
Cir. 1999)(citing M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 15 (1972)). “The presence of a
valid forum-selection clause requires district courts to
adjust their usual § 1404(a) analysis in three
ways:” (1) “First, the plaintiff's choice of
forum merits no weight;” (2) the court “should
not consider arguments about the parties' private
interests” and may only consider “public-interest
factors;” and (3) “a § 1404(a) transfer of
venue will not carry with it the original venue's
choice-of-law rules.” Atl. Marine, 571 U.S. at
forum selection clause in this case provides, “Any
lawsuit arising directly or indirectly out of this letter or
otherwise related to your employment  will be litigated in
a court of competent jurisdiction in Dallas County,
Texas.” (Filing No. 17-2 at p. 5)(bold and
capitalization removed). Plaintiff did not respond to the
motion, and therefore does not argue that the forum selection
clause is unjust, unreasonable, or otherwise invalid, and the
Court find no basis to conclude the clause is unenforceable.
See M.B. Rests., Inc., 183 F.3d at 752. The Court
also concludes the forum selection clause is mandatory, as it
provides lawsuits arising from Plaintiff's employment
“will be litigated in a court of competent
jurisdiction in Dallas County, Texas, ” which suggests
exclusivity in that forum. (Filing No. 17-2 at p.
5)(emphasis added); see Dunne v. Libbra, 330
F.3d 1062, 1064 (8th Cir. 2003)(stating mandatory forum
selection clauses use words such as “exclusive, ”
“only, ” “must, ” or “any other
terms that might suggest exclusivity.”). The Court
further finds the plain language of the forum selection
clause encompasses Plaintiff's claims in this case, which
arise out of her employment with Cenergistic, because the
clause expressly applies to “Any lawsuit arising
directly or indirectly out of this letter or otherwise
related to your employment.” See Semi-
Materials Co. v. MEMC Elec. Materials, Inc., 655 F.3d
829, 833 (8th Cir. 2011)(quoting Reilly v. Rangers Mgmt.,
Inc., 727 S.W.2d 527, 529 (Tex. 1987))(stating under
Texas law, “Contract language ‘should be given
its plain grammatical meaning unless it definitely appears
that the intention of the parties would thereby be
defeated.'”); see e.g., Slater v. Energy Servs.
Group Int'l, Inc., 634 F.3d 1326, 1331 (11th Cir.
2011)(concluding a forum-selection clause in plaintiff's
contract for employment that “include[d] all claims
arising directly or indirectly from the relationship
evidenced by the contract” encompassed the
plaintiff's Title VII discrimination claims). Finally,
the Court finds there are no public-interest factors or
“extraordinary circumstances unrelated to the
convenience of the parties [that] clearly disfavor a
transfer.” See Atl. Marine, 571 U.S. at 52.
Therefore, the Court concludes Cenergistic's motion to
transfer should be granted, and that this case should be
transferred to the United States District Court, Northern
District of Texas, Dallas Division.
concluded that Cenergistic's motion to transfer venue
should be granted, the Court will deny the balance of its
motion to dismiss as moot, subject to reassertion after the
case has been transferred. Upon consideration, IT IS
Defendant's Motion to Transfer (Filing No. 16)
case shall be transferred to the United States District
Court, Northern District of Texas, Dallas Division;
remainder of Defendant's motion is otherwise denied as
moot, subject ...