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Trosper v. Synthes Usa Sales, LLC

United States District Court, Ninth Circuit

June 12, 2013

Tanner Trosper, Plaintiff,
v.
Synthes USA Sales, LLC., Depuy Synthes Sales, Inc., and Does 2 through 10 Defendants.

ORDER Re: Defendants' Motion to Dismiss Plaintiff Tanner Trosper's First Amended Complaint [18]; Plaintiff's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment [22]

RONALD S.W. LEW, Senior District Judge.

Currently before the Court are Defendants Synthes USA Sales, LLC. and Depuy Synthes Sales, Inc.'s Motion to Dismiss Plaintiff Tanner Trosper's First Amended Complaint [18][19], and Plaintiff Tanner Trosper's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment [22]. The Court having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:

The Court hereby GRANTS Defendants Synthes USA Sales, LLC and Depuy Synthes Sales, Inc.'s Motion to Dismiss. Accordingly, Plaintiff's Motion for Summary Judgment is DENIED AS MOOT.

I. BACKGROUND

Plaintiff Tanner Trosper ("Plaintiff" or "Trosper") filed this Action against Defendants Synthes USA Sales, LLC, Depuy Synthes Sales, Inc. (collectively, "Synthes" or "Defendant")[1], and Does 2 through 10 seeking declaratory and injunctive relief. Plaintiff alleges that certain provisions of a Sales Consultant Confidentiality and Non-Solicitation Agreement ("Agreement") that he signed as a condition of employment with Synthes is void.

The Agreement contains a "Choice of Law and Forum" clause, which provides as follows:

Choice of Law and Forum:
This agreement will be governed by Pennsylvania law applicable to contracts entered into and performed in Pennsylvania. I agree that this agreement shall exclusively be enforced by any federal or state court of competent jurisdiction in the Commonwealth of Pennsylvania and hereby consent to the personal jurisdiction of these courts.

Compl., Ex. A at 8 [1]. Synthes' instant Motion to Dismiss Plaintiff Tanner Trosper's First Amended Complaint seeks enforcement of the foregoing forum selection clause. Plaintiff's Motion for Summary Judgment seeks summary judgment as to the entirety of Plaintiff's Complaint.

Plaintiff filed this Action on March 25, 2013 [1]. He filed his First Amended Complaint ("FAC") on April 24, 2013 [14]. Synthes filed a Complaint against Trosper three days later in the United States District Court for the Eastern District of Pennsylvania (the "Pennsylvania Litigation") seeking to enforce the Agreement. See Def.'s Request for Judicial Notice Ex. A [21].

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(3) allows a party to file a motion to dismiss on the basis of improper venue. Fed. R. Civ. Proc. 12(b)(3). A motion to dismiss premised on the failure of a plaintiff to initiate an action in the venue mandated by a forum selection clause is treated as a motion to dismiss under Rule 12(b)(3). Argueta v. Banco Mexicano , 87 F.3d 320, 324 (9th Cir. 1996).

When a party seeks enforcement of a forum selection clause under Rule 12(b)(3), a district court is not required to accept the pleadings as true and may consider facts outside of the pleadings. Id .; see also Richards v. Lloyd's of London , 135 F.3d 1289, 1292 (9th Cir. 1998). Further, a court may draw all reasonable inferences in favor of the party that is opposing enforcement of the forum selection clause. Murphy v. Schneider Nat'l , 362 F.3d 1133, 1138 (9th Cir. 2004).

Enforcement of forum selection clauses in diversity cases in federal court is governed by federal law. Manetti-Farrow, Inc. v. Gucci Am., Inc. , 858 F.2d 509, 513 (9th Cir. 1988). Before a court can assess the enforceability of a forum selection clause, it must first determine whether the clause is mandatory or permissive. See 14D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ยง 3803.1 (3d ed. 1998). A permissive forum selection clause will permit a certain forum to assert jurisdiction over the claim, but it does not designate that forum as the only proper forum for litigation. See Mostny v. Winnie Papir, A/S, 158 Fed.App'x 825 ...


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