Argued: June 26, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Daniel J. Kaiser, Kaiser Saurborn & Mair, P.C., New York, New York, for Appellant.
Thomas H. Golden, Willkie Farr & Gallagher LLP, New York, New York (Jill K. Grant, of counsel), for Appellees.
Before: NEWMAN, WINTER and DRONEY, Circuit Judges.
Judge NEWMAN concurs in a separate opinion.
DRONEY, Circuit Judge:
Plaintiff-Appellant Brian Anthony Martinez (" Martinez" ) appeals from a judgment of the United States District Court for the Southern District of New York (Furman, J. ), dismissing his complaint for improper venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure. Martinez brought this action against his former employer, Bloomberg LP (" Bloomberg" ), a privately held financial software, mass media, and data analysis company, as well as two of its employees, Andrew Lack and Catriona Henderson, alleging that his termination constituted discrimination in violation of the Americans with Disabilities Act (" ADA" ), as well as state and local laws. Bloomberg and Lack moved to dismiss on the basis of a clause contained in Martinez's employment contract, which indicated that English law governed the agreement and that " any dispute arising hereunder shall be subject to the exclusive jurisdiction of the English courts." We hold that: (1) where a contract contains both a valid choice-of-law clause and a forum selection clause, the substantive law identified in the choice-of-law clause governs the interpretation of the forum selection clause, while federal law governs the enforceability of the forum selection clause; (2) under English law, Martinez's discrimination claims " arise [ ]under" the employment agreement, within the meaning of the forum selection clause; and (3) the forum selection clause is enforceable under federal law. Accordingly, we affirm the judgment of the district court.
Martinez began his career at Bloomberg on a freelance basis in September of 1999,
becoming a full time producer assigned to special projects in April of 2000. After stints at the company's New York and Tokyo offices, Martinez was reassigned in 2005 to the company's London office. On February 21, 2005, Martinez executed an employment agreement that identified the London office as Martinez's " normal place of business," and included termination provisions and grievance procedures. The agreement also contained a combined choice-of-law and choice-of-forum clause, providing that the agreement " shall be interpreted and construed in accordance with English law and any dispute arising hereunder shall be subject to the exclusive jurisdiction of the English courts."
Throughout his career at Bloomberg, Martinez consistently received strong performance reviews, and was repeatedly promoted. Early in 2010 he was named Managing Director for Bloomberg Television International in Europe, the Middle East, Africa, and Asia. Later in the year, the company began to develop plans to bring its activities in Latin America under Martinez's supervision.
In October of 2010, Martinez informed Bloomberg employees, including Henderson, regional head of Human Resources in the United Kingdom, and Lack, chief executive officer of Bloomberg's Multimedia Division, that he had been subjected to physical abuse by his same-sex domestic partner. He sought treatment from Bloomberg's occupational healthcare provider, and was referred to a psychologist. Although Martinez was already scheduled to take annual leave from December 16, 2010 to January 3, 2011, Lack insisted that he begin an unofficial leave of absence in late November. In mid-December Lack conducted Martinez's annual performance review by telephone. Although his performance continued to be rated " Exceptional," Martinez alleges that his bonus was smaller on a percentage basis than that of Bloomberg employees who reported to him and who received lower ratings.
Martinez returned to work on January 4, 2011. In mid-February, however, Henderson and Lack held a meeting with Martinez at which they expressed concern that he was " unwell" and that problems in his personal life would interfere with his job performance. At their urging, Martinez began a period of medical leave, despite his belief that it was unnecessary. In late March a doctor cleared Martinez to return to work, but Henderson and Lack continued to insist that Martinez not return until May.
During Martinez's period of medical leave, he began to hear through colleagues of various organizational changes at the company. In March the company removed Asia from his responsibility. On June 20, 2011, the company informed Martinez that it was exploring a corporate restructuring that would result in the elimination of his position. The following day, a U.K. solicitor representing Martinez notified the company that in her view elimination of Martinez's position likely " would give rise to claims for unfair dismissal, discrimination and whistle-blowing." On July 29, 2011, Bloomberg terminated Martinez's employment.
Martinez filed suit in the Southern District of New York on October 24, 2011. He asserted claims against Bloomberg for discrimination on the basis of perceived disability in violation of the ADA, 42 U.S.C. § 12111, et seq., and against Bloomberg, Lack, and Henderson for discrimination on the basis of perceived disability and on the basis of sexual orientation in violation of the New York State Human Rights Law (" NYSHRL" ), N.Y. Exec. Law § 296, et seq. , and the New York City Human Rights Law (" NYCHRL" ), New
York City, N.Y., Code § 8-502, et seq. Three days later, Martinez brought a similar proceeding before the London Employment Tribunal, alleging unfair dismissal, unfair dismissal because of protected disclosure, and unlawful deduction of wages. Martinez subsequently abandoned the English proceeding, citing the cost of litigation in the U.K. and the unavailability of prevailing party attorney's fees under English law.
On January 30, 2012, Bloomberg and Lack moved to dismiss the federal proceeding for improper venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure. The district court (Furman, J. ) granted the motion and dismissed the claims against all defendants, concluding that the forum selection clause contained in Martinez's employment agreement encompassed all of his claims, and that it was enforceable. See Martinez v. Bloomberg LP, 883 F.Supp.2d 511, 513, 518, 522 (S.D.N.Y.2012). Martinez appealed.
Martinez raises two issues on appeal. First, he contends that the district court erred in construing the forum selection clause to encompass claims of discrimination based on perceived disability that could be brought under the ADA. Second, he argues that, even if the district court was correct in its interpretation of the forum selection clause's scope, the court should find it unenforceable, both because it would have the effect of forcing him to forfeit his ADA claim, and because several aspects of English law prompted him to abandon his contemporaneous action in the U.K. and his English claims are now time-barred.
We have previously observed that " neither the Supreme Court, nor this Court, has specifically designated a single clause of Rule 12(b) ... as the proper 13 procedural mechanism" for enforcing a forum selection clause through a motion to dismiss. TradeComet.com LLC v. Google, Inc., 647 F.3d 472, 475 (2d Cir.2011) (quotation marks and internal citations omitted). The Supreme Court recently resolved this uncertainty in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas,
__ U.S. __, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013). The Court held that generally " the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens, " rather than Rule 12(b). Id. at 580.
This clarification of the proper procedural vehicle for enforcing a forum selection clause, however, does not appear to alter the materials on which a district court may rely in granting a motion to dismiss based on a forum selection clause. In deciding a motion to dismiss for forum non conveniens, a district court normally relies solely on the pleadings and affidavits, see Transunion Corp. v. PepsiCo, Inc., 811 F.2d 127, 130 (2d Cir.1987), though it may order limited discovery, see Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451 n. 3 (2d Cir.1975). Similarly, in evaluating a motion to dismiss based on a forum selection clause, a district court typically relies on pleadings and affidavits, see Phillips v. Audio Active Ltd., 494 F.3d 378, 384 (2d Cir.2007), but must conduct an evidentiary
hearing to resolve disputed factual questions in favor of the defendant, see New Moon Shipping Co., Ltd. v. MAN B & W Diesel AG, 121 F.3d 24, 29 (2d Cir.1997). The parties here proceeded on the basis of the pleadings and the affidavits they submitted in connection with the motion to dismiss.
Atlantic Marine, however, did not address the standard of review to which we subject a district court's decision to dismiss a case based on a forum selection 19 clause. While we review a district court's decision to dismiss a case on the basis of general forum non conveniens doctrine for abuse of discretion, see Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir.2001) (en banc), we review a dismissal based specifically on a forum selection clause de novo, Phillips, 494 F.3d at 384, except where the decision is based on factual findings, which we review for clear error, Asoma Corp. v. SK Shipping Co., Ltd., 467 F.3d 817, 822 (2d Cir.2006). Although Atlantic Marine did not resolve this question, we need not decide it here. Since we conclude that the district court's decision to dismiss the case was proper under de novo review, we would reach the same conclusion under any more deferential standard of review.
Before we reach Martinez's challenges to the district court's interpretation of the forum selection clause and its finding that the clause is enforceable as applied to his discrimination claims, we address a conceptually prior issue: Where a contract contains both a choice-of-law and a choice-of-forum clause, does federal law or the body of law specified in the choice-of-law clause govern the effect of the choice-of-forum clause in an action brought in a federal district court?
In answering this question, we distinguish between the interpretation of a forum selection clause and the enforceability of the clause. To determine whether the district court properly dismissed a claim based on a forum selection clause, we employ a four-part analysis. We ask: (1) " whether the clause was reasonably communicated to the party resisting enforcement" ; (2) whether the clause is " mandatory or permissive, i.e., ... whether the parties are required to bring any 5 dispute to the designated forum or simply permitted to do so" ; and (3) " whether the claims and parties involved in the suit are subject to the forum selection clause." Phillips, 494 F.3d at 383 (emphasis in original). " If the forum clause was communicated to the resisting party, has mandatory force and covers the claims and parties involved in the dispute, it is presumptively enforceable." Id. A party can overcome this presumption only by (4) " making a sufficiently strong showing that enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching." Id. at 383-84 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)).
The overriding framework governing the effect of forum selection clauses in federal courts, therefore, is drawn from federal law. Furthermore, " federal law should be used to determine whether an otherwise mandatory and applicable forum clause is enforceable under Bremen, i.e., step four in our analysis." Phillips, 494 F.3d at 384; see also Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 700 (2d Cir.2009); Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1990) (per curiam); AVC Nederland B.V. v. Atrium Inv. P'ship, 740 F.2d 148, 156 (2d Cir.1984). In answering the interpretive questions posed by parts two and three of the four-part
framework, however, we normally apply the body of law selected in an otherwise valid choice-of-law clause. See AVC Nederland, 740 F.2d at 155; Phillips, 494 F.3d at 386 (noting in dicta that " we cannot understand why the interpretation of a forum selection clause should be singled out for application of any law other than that chosen to govern the interpretation of the contract as a whole" ). Hence, if we are called upon to determine whether a particular forum selection clause is mandatory or permissive, see AVC Nederland, 740 F.2d at 155-56, ...