The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
In this action, Plaintiff Marc Sepanski asserts claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et. seq., and the New York State Human Rights Law § 296 ("NYSHRL"). Plaintiff's claims arise from Defendants alleged discrimination on the basis of sex, sexual harassment, retaliatory acts, and termination of Plaintiff's employment. Plaintiff seeks a permanent injunction barring Defendants from future unlawful discriminatory acts, an award for lost wages and benefits, consequential and compensatory damages, punitive damages subject to Title VII, and reasonable attorneys' fees. Presently before this Court is Defendants' Motion to Dismiss or Alternatively to Transfer Venue.*fn1 For the following reasons, Defendants' motion is denied.
Plaintiff Marc Sepanski is a resident of the State of New York. (Complaint ("Comp"), Docket No. 1 at ¶ 5.) Defendants Jani-King, International, Inc. and Jani-King of Buffalo (collectively, "Jani-King") are corporations incorporated under the laws of Texas, with their corporate headquarters in Addison, Dallas County, Texas. (Defendants' Memorandum of Law in Support of Their Motion to Dismiss or Alternatively to Transfer Venue, (Defs.' Mem.), Docket No. 8, 1.)
The present action arises out of Plaintiff's employment by Jani-King of Buffalo, a wholly owned subsidiary of Jani-King, International, Inc. (Id.) Sepanski began his employment on February 21, 2005. (Comp. ¶ 7.) As part of his employment, Sepanski entered into an "Employment and Non-Disclosure Agreement," summarizing the terms and conditions of his employment with Jani-King of Buffalo. (Defs.' Mem. at 2.) This agreement contained a forum selection and choice of law clause designating Dallas County as the exclusive venue for all employment-related disputes. (Id.)
Shortly after Sepanski started his employment, he was subjected to a pattern of harassing and belittling comments on the basis of his gender. (Comp. ¶ 9.) Among these comments were statements like "men are worthless" and "men were God's first mistake." (Id. at ¶ 11.) In response, Plaintiff complained to Defendants' Regional Manager Joseph Stein. (Id. at ¶ 12.) These complaints eventually lead to Plaintiff's termination by Defendants on March 14, 2006. (Id. at ¶¶ 8, 16.)
Plaintiff commenced the present action on June 21, 2010, by filing a complaint in the United States District Court for the Western District of New York. Defendants filed a motion to dismiss, or in the alternative, to transfer venue, on November 22, 2010. (Docket No. 8.) Briefing on the motion concluded on January 20, 2011, at which time this Court took the matter under advisement without oral argument.
A. Motion to Dismiss Standard
Federal Rule of Civil Procedure 12(b)(3) provides that a party may move to dismiss a complaint on the basis of "improper venue." Fed. R. Civ. P. 12(b)(3). The standard by which to decide a 12(b)(3) motion is similar to that of a 12(b)(2) motion to dismiss for lack of personal jurisdiction. Benjamin v. Carusona, No. 09 Civ. 9722, 2010 WL 4448213, at *5 (S.D.N.Y. Nov. 5, 2010). Accordingly, the court will accept as true all factual allegations in the non-moving party's pleadings and draw all reasonable inferences in favor of the party opposing the motion. Friedman v. Schwartz, No. 08-CV-2801, 2009 WL 701111, at *5 (E.D.N.Y. Mar. 13, 2009). Additionally, in ruling on the motion the court may rely on facts and documents outside the Complaint. Cartier v. Micha, Inc., No. 06-CV-4699, 2007 WL 1187188, at *2 (S.D.N.Y. Apr. 20, 2007). Plaintiff bears the burden of demonstrating that venue is proper. U.S.E.P.A. ex rel. McKeown v. Port Auth. of N.Y. & N.J., 162 F. Supp. 2d 173, 183 (S.D.N.Y. 2001). Absent an evidentiary hearing, the plaintiff need only make a prima facie showing that venue is proper. Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005). . Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citing Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994)).
B. Defendants' Motion to Dismiss
Defendant contends that Plaintiff's claims should be dismissed based on improper venue because the forum selection clause in the Employment and Non-Disclosure Agreement requires Plaintiff to bring his action in Dallas County, Texas. Plaintiff does not dispute the validity of the forum selection clause, but argues that the clause should be held unenforceable.
A party moving to dismiss an action for improper venue pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure on the basis of a forum selection clause must demonstrate: "(1) the clause was reasonably communicated to the party resisting enforcement; (2) the clause was mandatory and not merely permissive; and (3) the claims and parties involved in the suit are subject to the forum selection clause." Altvater GesslerJ.A. Baczewski Intern. (USA) Inc. v. Sovieski, 572 F.3d 86, 89 (2d Cir. 2009).
Here, neither party disputes that these three requirements have been met. Therefore the burden shifts to the non-moving party to "rebut the presumption of enforceability." Id. To do so, a non-moving party must make a "sufficiently strong showing that 'enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overeaching.'" Id. (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972)). This burden is met where a non-moving party demonstrates that (1) the forum selection clause is the result of fraud or overreaching; (2) the law to be applied in the selected forum is fundamentally unfair; (3) enforcement would contravene a strong public policy of the forum state; or (4) ...