because the parties
specifically excluded it from the general arbitration clause); see also
Oldroyd v. Elmira Savings Bank, F.S.B., 134 F.3d 72, 75-76 (2d Cir. 1998)
(first issue to be resolved in deciding a motion to compel arbitration
and to stay proceedings pending arbitration is whether the parties agreed
In my view, this agreement is a narrow agreement to arbitrate certain
specific issues and no more. First of all, the agreement itself is styled
"Confidentiality and Non Competition Agreement." That title alone
suggests a narrow interpretation dealing with two general topics:
confidentiality concerning proprietary information and a promise not to
compete. I believe a fair reading of that agreement establishes that
arbitration related to disputes concerning those matters and nothing
It is clear that the employment contract and the agreement to arbitrate
could have spelled out more clearly the nature of the disputes to be
arbitrated. The agreement at issue here, in my view, covers two discrete
topics and cannot be read as requiring all employment disputes of any
nature to be submitted to arbitration. I find this to be so even though
this separate agreement relating to confidentiality and competition was
attached to the original employment letter presented to Ahern.
The basic rudimentary principle concerning arbitration agreements is
that the court must be satisfied that the parties entered into such an
agreement and that they intended their disputes to be covered by it.
Although the Federal Arbitration Act favors arbitration, it cannot be
read as compelling individuals to do something that they never intended
to do. See Volt Information Sciences, Inc. v. Board of Trustees of Leland
Stanford Junior University, 489 U.S. at 478.
In sum, defendants have failed to convince me that the agreement at
issue requires plaintiff to arbitrate the claims involved in this lawsuit
and, therefore, defendants' motion is denied.
Defendants' Motion To Change Venue
In the alternative, NTI moves pursuant to 28 U.S.C. § 1404(a) to
transfer this action to the District of Minnesota. Section 1404(a)
provides that "[f]or 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 decision whether to grant a transfer under this section is
committed to the sound discretion of the district court. See Filmline
(Cross Country) Productions, Inc. v. United Artists, Inc., 865 F.2d 513,
520 (2d Cir. 1989). In considering a motion to change venue, the court
must consider several well-established factors, including: the
plaintiff's choice of forum; the place where the operative facts
underlying the action occurred; the convenience and relative means of the
parties; the convenience of material witnesses; the availability of
process to compel the attendance of unwilling witnesses; the relative ease
of access to sources of proof; the forum's familiarity with the governing
law; trial efficiency; and the interests of justice. See Cerasoli v.
Xomed, Inc., 952 F. Supp. 152, 154 (W.D.N.Y. 1997); Don King
Productions, Inc. v. Douglas, 735 F. Supp. 522, 533 (S.D.N Y 1990); see
also Gulf Oil Corp. v. Gilbert, 335 U.S. 501 [330 U.S. 501] (1947).
In general, a defendant moving for a change of venue bears the "burden
of making out a strong case for a transfer." Filmline, 865 F.2d at 521
(quoting Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.), cert.
denied, 340 U.S. 851 (1950)). To prevail on the motion, the movant must
make a "clear
showing" that the litigation in the proposed transferee
district would be more convenient and would better serve the interests of
justice. Y4 Design Ltd. v. Regensteiner Publishing Enterprises,
428 F. Supp. 1067, 1070 (S.D.N.Y. 1977).
After considering all of the foregoing factors, I do not believe that
plaintiff's choice of forum should be disturbed here. Neither side
disputes the fact that the Western District of New York is a proper
district for venue purposes. I am also convinced that plaintiff resides
here, that the offer of employment was made here and that at least some
of his duties involved activities in the Western District of New York. It
is no doubt true that there will be witnesses related to NTI that will
need to be deposed and possibly be present at trial, but that is not an
uncommon experience in diversity litigation. It appears that NTI's
president, Lynch, and plaintiff were the primary actors, although NTI's
former CFO Matjaz Korosec and a recruiter, Dianna Rudd, may also be
In many cases involving a proposed change of venue, there are factors
which support each side. That is true here. There will be some
inconvenience to someone no matter where this action is prosecuted, and I
am not convinced that there are sufficient compelling reasons to warrant
transferring the case from the district selected by plaintiff.
Generally, plaintiff's choice of forum should control. Iragorri v. United
Technologies Corp., 274 F.3d 65, 70 (2d Cir. 2001); Guidi v.
Inter-Continental Hotels Corp., 224 F.3d 142, 146 (2d. Cir. 2000); see
also Miceli v. Stromer, 675 F. Supp. 1559, 1565 (D. Col. 1987); Sorrels
Steel Co. v. Great South West Corp., 651 F. Supp. 623, 628 (S.D.Miss.
1986); Houk v. Kimberly-Clark Corp., 613 F. Supp. 923 (W.D.Mo. 1985).
Because defendants have failed to carry their burden to make a "clear
showing" that the transferee forum is more convenient under §
1404(a), their motion to transfer is denied.
Plaintiff's Cross-Motion For Fees and Costs
On October 30, 2001, defendants were served with a request for waiver
of service of summons pursuant to FED. R. CIV. P. 4(d). The parties do
not dispute that defendants failed to return the acknowledgement of
receipt of summons and failed to comply with the request for waiver
within the time specified in FED. R. CIV. P. 4(d). Plaintiff subsequently
served defendants, and now cross-moves for the recovery of $1,845.00 in
attorneys' fees and $50.00 in costs related to such service on
Rule 4(d)(5) provides:
The costs to be imposed on a defendant . . . for
failure to comply with a request to waive service of a
summons shall include costs subsequently incurred in
effecting service . . ., together with the costs,
including a reasonable attorney's fee, of any motion
required to collect the costs of service.
FED. R. CIV. P. 4(d). Notwithstanding defendants' arguments to the
contrary, plaintiff is entitled to recover the $50.00 expended on a
process server. Plaintiff's request for payment of 16.20 hours of attorney
and paralegal time, on the other hand, is unreasonable. Recovery of fees
shall be limited to $80.00 for the time expended on December 10, 2001.
Defendants' motion to stay this action and compel arbitration, or, in
the alternative, to transfer the action to the District of Minnesota, is
denied. Plaintiff's cross-motion
for costs and fees is granted in the amount of $130.00.
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