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Kedkad v. Microsoft Corporation, Inc.

United States District Court, Ninth Circuit

November 4, 2013

MICROSOFT CORPORATION, INC., et al., Defendants.



This matter came before the Court on July 8, 2013, on Defendant Microsoft Corporation, Inc. ("MS Corporation")'s motion to dismiss for improper venue due to a purported forum selection clause and for forum non conveniens. The Court denied MS Corporation's motion as to venue, but refrained from ruling on forum non conveniens grounds pending supplemental briefing from the parties. (Docket No. 42.) The parties submitted supplemental briefing on the forum non conveniens issue. (Docket Nos. 43, 46.) The Court now denies MS Corporation's motion.


Plaintiff Mahmoud Kedkad is a U.S. citizen of Libyan national origin permanently residing in California. Compl. ¶ 3 (Docket No. 1). Plaintiff was employed as a Marketing Lead by Microsoft Libya ("MS Libya") in Tripoli, Libya, and served from February 1, 2010 until February 27, 2011, when the revolution erupted in Libya and Plaintiff was evacuated to the United States on a flight chartered by the U.S. Embassy. Compl. ¶¶ 3, 7, 9-11. He alleges the following facts, unless otherwise indicated:

Plaintiff worked from February 1, 2010, through February 1, 2011, under an Employment Contract ("2010 Contract") with MS Libya. 2010 Employment Contract (Docket No. 14-1, art. 2). Plaintiff entered into a subsequent contract with MS Libya "for one year starting 1/1/2011" ("2011 Contract"), which MS Corporation contends was a "superseding" contract purporting to cover the period between January 1, 2011, and January 1, 2012. Declaration of Khalid Elhasumi ("Elhasumi Decl.") ¶ 4 (Docket No. 14); see also id., Ex. C (Docket No. 14-3) (2011 Contract - English translation, art. 1).

The 2011 Contract, the operative contract during the time period in question, contains a choice of law provision mandating the application of Libyan law, which states:

This Contract is subject to the provisions of the Labor law No. (58) for the year 1970 Gregorian and its amendments and the law on Social Solidarity No. (13) for the year 1980 Gregorian and its amendments and all other decision[s], decree[s], or regulation[s] which have not been specifically mentioned in this contract.

Elhasumi Decl., Ex. C (2011 Contract - English translation, art. 10) (emphasis added).

The Libyan revolution in late February 2011 resulted in the closure of MS Libya and the evacuation of its employees. Compl. ¶¶ 10-13; Elhasumi Decl. ¶ 8. Plaintiff was evacuated from Libya and returned to the United States at that time but alleges that he was traumatized by the violence he had observed and suffered from symptoms of Post-Traumatic Stress Disorder ("PTSD"). Id. ¶¶ 11, 13. In mid-March 2011, Plaintiff was reassigned to Dubai, but he did not ultimately go. Id. ¶ 15. Plaintiff alleges that he sought postponement or modifications of his work duties, but he was not transferred into a new job either in the United States or overseas. Id. ¶¶ 15-19. Plaintiff was terminated on December 1, 2011, two months before the 2011 Contract was set to expire on grounds that he failed to find a new job for which MS Corporation would hire him. Id. ¶ 21. Plaintiff now sues over MS Corporation's failure to pay certain benefits during the duration of his contractual term and failure to accommodate his disability in the form of PTSD. Id. ¶¶ 11, 13-20. Specifically, Plaintiff alleges violations of the Americans with Disabilities Act, California's Fair Employment and Housing Act, the Family Medical Leave Act, the California Family Rights Act, and breach of the 2011 Contract. Id. ¶¶ 22-88.

Plaintiff originally sued Defendants MS Corporation, MS Libya, and two regional entities within Microsoft's administrative structure. Plaintiff subsequently voluntarily dismissed his claims against all Defendants save MS Corporation. (Docket No. 34.) The legal sufficiency of this action in so far as it proceeds against MS Corporation, an entity that did not directly employ Plaintiff, is not the subject of the instant motion to dismiss for forum non conveniens, although it is discussed at length by the parties and may later be considered on a dispositive motion. See, e.g., Opp'n at 3 (Docket No. 30); Mot. at 3 (Docket No. 12); Reply at 8-12 (Docket No. 35); see also Oct. 21, 2013 Joint Case Management Conference Statement at 6 (Docket No. 49) (discussing anticipated motions).


Dismissal pursuant to the doctrine of forum non conveniens is a "drastic exercise of the court's inherent power" and one that is "an exceptional tool to be employed sparingly." Carijano v. Occidental Petroleum, 643 F.3d 1216, 1224 (9th Cir. 2011) (citing Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002)). "The mere fact that a case involves conduct or plaintiffs from overseas is not enough for dismissal." Id. (citation omitted). A defendant must show that the chosen forum results in "oppressiveness and vexation... out of all proportion" to the Plaintiff's convenience. Carijano, 643 F.3d at 1227 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)).

To prevail on a motion to dismiss based on forum non conveniens, a defendant bears the burden of demonstrating (1) the adequacy of the alternative forum and (2) that the balance of private and public interest factors favors dismissal. Dole Food Co., 303 F.3d at 1118. Before dismissing a case for forum non conveniens, the court must make a choice of law determination, which is "only determinative when the case involves a United States statute requiring venue in the United States." Lueck v. Sundstrand Corp., 236 F.3d 1137, 1148 (9th Cir. ...

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