United States District Court, D. Minnesota
Melissa Muro LaMere, William Z. Pentelovitch, and Sarah A.
Horstmann, MASLON LLP, for plaintiff.
E. Tegt and James M. Susag, LARKIN HOFFMAN DALY &
LINDGREN LTD., for defendants.
Patrick J. Schiltz United States District Judge
Works Computing, Inc. (“WCI”) brings this action
against defendants Russell Peterson (a former employee) and
Riverside Technologies, Inc. (“Riverside”)
(Peterson's new employer). WCI alleges that Peterson
breached the employment agreement that he signed when he
accepted employment with WCI and that Riverside tortiously
interfered with that agreement. WCI brought this action in
state court and sought a temporary restraining order. About
an hour before the state judge was set to preside over a
hearing on WCI's motion, defendants removed the action to
matter is before the Court on (1) WCI's motion to remand
and for an award of attorney's fees; (2) WCI's
alternative motion for a temporary restraining order; and (3)
defendants' motion to dismiss or transfer. For the
reasons that follow, the Court grants WCI's motion to
remand, denies WCI's request for attorney's fees, and
denies the remaining motions as moot.
remove an action to federal court under 28 U.S.C. §
1441(a), “all defendants who have been properly joined
and served must join in or consent to the removal of the
action.” 28 U.S.C. § 1446(b)(2)(A). Peterson
agreed, however, that disputes arising out of his employment
by WCI would be decided in Minnesota state court and further
waived his right to remove such disputes to federal court:
Any dispute arising out of or related to Employee's
employment by Works Computing, or arising out of or related
to this Agreement, or any breach or alleged breach hereof,
shall be exclusively decided by a state court District Judge
sitting without a jury in the Fourth Judicial District,
Hennepin County, Minnesota. Employee irrevocably waives
Employee's right, if any, to have any disputes between
Employee and Works Computing arising out of or related to
Employee's employment or this Agreement decided in any
jurisdiction or venue other than the state court in the
Fourth Judicial District, Hennepin County, Minnesota, and
Employee irrevocably waives the right to remove or transfer
any action commenced in the state court in the Fourth
Judicial District, Hennepin County, Minnesota, to any other
court or venue.
Compl. Ex. A § 6.3 (bolding removed).
does not dispute that, if this provision is enforceable,
removal was improper under § 1446(b)(2)(A) because he
did not validly consent. See iNet Directories, LLC v.
Developershed, Inc., 394 F.3d 1081, 1082 (8th Cir. 2005)
(per curiam) (contractual waiver of right to object to venue
operated as a waiver of right to remove); Valspar Corp.
v. Sherman, 211 F.Supp.3d 1209, 1214-15 (D. Minn. 2016)
(removal was improper because one defendant had contractually
waived the right to remove). Peterson contends, however, that
the forum-selection clause is unenforceable and, in any
event, that WCI waived its right to seek removal by filing a
motion for a temporary restraining order in this Court.
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).
Such clauses are enforceable “unless they would
actually deprive the opposing party of his fair day in
court.” Id. Peterson does not allege that the
clause was secured by fraud, nor does he contend that he is
physically or financially unable to litigate in Minnesota
state court. Instead, he argues that the clause is
unreasonable because he is more likely to win on the merits
if this case is tried Nebraska rather than in Minnesota.
Specifically, Peterson argues that (1) if the forum-selection
clause is declared invalid, Minnesota courts would not have
personal jurisdiction over him; (2) if Minnesota courts did
not have personal jurisdiction over him, WCI would sue him in
Nebraska; (3) if WCI sued him in Nebraska, the Nebraska court
would apply Nebraska choice-of-law rules; (4) if the Nebraska
court applied Nebraska choice-of-law rules, the Nebraska
court would find that Nebraska law governed his contract with
WCI (even though the contract itself provides that Minnesota
law governs); and (5) if the Nebraska court found that
Nebraska law governed his contract, the Nebraska court would
find invalid the restrictive covenants that WCI seeks to
enforce because they violate Nebraska public policy. By
contrast, Peterson seems to believe that, if the
forum-selection clause is enforced, a Minnesota court will
apply Minnesota law and find that the restrictive covenants
that WCI seeks to enforce are fully or partially valid.
aside the fact that Peterson's argument rests on a number
of debatable assumptions, the question whether a
forum-selection clause is “unreasonable” does not
focus on the merits of the underlying dispute. In other
words, in deciding whether a forum-selection clause is valid,
a court does not essentially try the merits of the case and
then reason backwards to a determination about the validity
of the clause. Instead, the issue is whether “trial in
the contractual forum will be so gravely difficult and
inconvenient that [the party resisting the contractual forum]
will for all practical purposes be deprived of his day in
court.” M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 18 (1972). In the absence of such a showing,
“there is no basis for concluding that it would be
unfair, unjust, or unreasonable to hold that party to his
bargain.” Id. Peterson has made no such
showing, and therefore he cannot establish that enforcement
of the forum-selection clause is unreasonable.
“a forum selection clause may be set aside if
‘enforcement would contravene a strong public policy of
the forum in which suit is brought, whether declared by
statute or by judicial decision.'” Servewell
Plumbing, LLC v. Fed. Ins. Co., 439 F.3d 786, 790 (8th
Cir. 2006) (quoting M/S Bremen, 407 U.S. at 15). But
Peterson is not arguing that the forum-selection
clause violates a strong public policy of
Minnesota, the forum in which suit was brought.
Instead, he is arguing that the restrictive
covenants violate a strong public policy of
Nebraska, the state in which he lives. The Court
therefore rejects Peterson's argument that the
forum-selection clause is unenforceable.
next argue that WCI waived its right to contest removal by
seeking affirmative relief-in the form of a motion for a
temporary restraining order-from this Court. The Court
disagrees. Waiver is “an intentional relinquishment or
abandonment of a known right or privilege.” Johnson
v. Zerbst, 304 U.S. 458, 464 (1938). WCI filed its
motion to remand one day after this case was removed and has
been very clear that it seeks a temporary restraining order
only in the alternative (or pending the Court's decision
on the remand issue). This conduct does not manifest an
intent to abandon any right to remand; to the contrary, WCI
has clearly demonstrated its intent to assert that right.
Cf. Koehnen v. Herald Fire Ins. Co., 89 F.3d 525,
528-29 (8th Cir. 1996) (suggesting that party seeking remand
could have asked to withdraw or stay his motion seeking
affirmative relief in favor of his later-filed motion for
remand). The Court therefore rejects defendants' waiver
defendants point out that, as a non-signatory to the
employment agreement, Riverside is not bound by the
forum-selection clause. That is true, but irrelevant. The
Court is not enforcing the forum-selection clause against
Riverside. Instead, the Court is remanding this case because
Peterson did not ...