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HASKEL v. FPR REGISTRY

September 19, 1994

Carol Haskel, Plaintiff,
v.
The FPR Registry, Inc., Defendant.



The opinion of the court was delivered by: CHARLES P. SIFTON

 SIFTON, District Judge.

 In this action for breach of an employment contract, defendant, The FPR Registry, Inc. ("The Registry"), moves to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) on the basis of a forum selection clause in the contract. Plaintiff opposes the motion, contending that the forum selection clause should not be enforced or, in the alternative, that defendant's motion should be considered as a motion to transfer venue rather than as a motion to dismiss and accordingly denied. Plaintiff also seeks the costs of opposing defendant's motion. For the reasons discussed below, defendant's motion for dismissal is denied, but the action will be transferred to the United States District Court for the District of Maryland.

 BACKGROUND

 Plaintiff Carol Haskel, a/k/a Carol Haskel Solomon ("Haskel") is a resident of New York State. The Registry is a Delaware corporation with offices in Maryland and Florida. Defendant states that it does not currently maintain an office in this state, but plaintiff disputes that assertion. Def.'s Brief at 5; Pl.'s Aff. in Opp. at P 1.

 The Registry is in the business of providing on-line computer services to landlords who seek credit and other information about prospective tenants. In 1989, defendant began efforts to solicit sales agents to sell its services to landlords in the New York area. In October 1989, plaintiff attended a recruiting meeting in New York City at which she was offered a position. Plaintiff then signed an employment contract provided by The Registry. Under the terms of the contract, plaintiff was to be paid a base salary of $ 21,500 per year in addition to commissions for sales made. According to plaintiff, the terms of the contract and the commission provisions were explained by Ilene Ingber, then a vice president of The Registry.

 The subject of this action is the following provision which Haskel alleges is in her contract: "It is understood that if Haskel leaves under good terms the Registry will continue to pay his [sic] commissions on his [sic] accounts." The Registry contends that this "continuation clause" was added by Haskel in her own copy of the employment contract and was not accepted by The Registry.

 The parties agree that the contract also contained the following choice of law and forum selection clause provision:

 
(a) This Agreement shall be governed by the laws of the State of Maryland.
 
(b) Any lawsuit arising in connection with this Agreement shall be brought only in either the United States District Court for the District of Maryland or the Circuit Court for Montgomery County in Maryland; except that suit ancillary to those brought in any court of competent jurisdiction.

 Contract at P 6.

 Plaintiff worked for defendant for approximately four years during which time, she alleges, she fulfilled the requirements of her employment contract. According to plaintiff, on August 6, 1993, she orally informed defendant that she would be resigning her position. At the request of defendant she delayed her resignation for two weeks, until August 20, 1993. In a letter confirming her resignation and the new date on which she would leave defendant's employ, plaintiff informed defendant that she expected to receive payments for her continuing commissions under the provision quoted above. In response, defendant notified Haskel that she would be terminated a week earlier than agreed. She was also told that she would not be paid for the last week of work or for any commissions based on business generated after her departure by the accounts she had obtained for defendant. Haskel further alleges that The Registry failed to pay certain commissions due for business placed by her accounts prior to her departure.

 As a result of the failure to pay commissions, Haskel commenced this action in the Supreme Court for Nassau County, New York. Her complaint asserts claims for breach of contract and for liquidated damages based on alleged violations of the New York State labor laws. The summons and complaint were served in New York upon an officer of defendant who was at a Manhattan trade show soliciting customers for the defendant.

 The Registry removed the action on the basis of diversity jurisdiction, 28 U.S.C. ┬ž 1332, and then made the instant motion to dismiss for improper venue on the grounds that the forum selection clause in the contract precluded suit here. Defendant contends that the forum selection clause of the contract should be enforced since The Registry is subject to service of process in Maryland and the plaintiff could have brought the suit in either the United States District Court for Maryland or in the Circuit Court for Montgomery County, Maryland. As further support for its motion, The Registry also alleges that it does not maintain an office in New York and that defendant's witnesses and most of the records necessary for the defense of the action are located in Maryland and Florida.

 Haskel has filed papers opposing the motion to dismiss, arguing that her suit involves events which took place solely in New York and that the forum selection clause is unjust and unreasonable and should not be enforced. Haskel argues in the alternative that, if the forum selection clause is deemed enforceable, defendant's motion should be construed as a motion to transfer venue to the Federal District Court in ...


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