United States District Court, N.D. California
For Joseph Monastiero, Plaintiff: Eric A. Grover, LEAD ATTORNEY, Keller Grover LLP, San Francisco, CA; David Aaron Lerman, Law Offices of David A. Lerman, Berkeley, CA.
For Appmobi, Inc., a Delaware corporation, Defendant: Thomas Michael McInerney, Ogletree Deakins Nash Smoak & Stewart, P.C., San Francisco, CA.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR FORUM NON CONVENIENS AND PURSUANT TO RULE 12(b)(3)
SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE.
Currently before the Court is a motion to dismiss filed by defendant appMobi, Inc. Docket No. 13. This motion is scheduled for hearing before the Court on February 7, 2014. Pursuant to Local Rule 7-1(b), the Court determines that the matter is appropriate for resolution without oral argument and VACATES the hearing. For the reasons set forth below, the Court DENIES defendant's motion to dismiss.
Plaintiff Joseph Monastiero is and was at all times relevant herein a resident of California and is a former employee of defendant appMobi, a corporation headquartered in Lancaster, Pennsylvania. Complaint ¶ ¶ 1-2. Monastiero began working as Vice President of Business Development for appMobi in September, 2010. Id. ¶ 8. Under the terms of Monstiero's employment agreement, he was entitled to a 10% commission fee on direct sales and a 5% commission on sales made by others at appMobi. Id. Monastiero's employment agreement included a governing law clause that specified the law of the Commonwealth of Pennsylvania as the controlling law and the Court of Common Pleas of Lancaster County, Pennsylvania as the forum of exclusive jurisdiction and venue for all matters arising under the
contract. Abadir Decl. Ex. A, Employment Agreement ¶ 16. The relevant term in Monastiero's employment agreement states:
16. Law Governing. This Agreement shall be governed by and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to its laws of conflicts of laws. The Court of Common Pleas of Lancaster County, Pennsylvania, shall have exclusive jurisdiction and venue of all matters arising hereunder. In such proceedings, Employee and the Employer each hereby consents to such jurisdiction and venue and waives any right to a jury trial.
Monastiero's employment with appMobi terminated in May, 2012; he signed a termination agreement with appMobi on May 31, 2012. Termination Agreement. This agreement also included a governing law provision that specified the law of Pennsylvania as the controlling law and the Court of Common Pleas of Lancaster County, Pennsylvania, as the exclusive jurisdiction and venue of all matters arising under the agreement. Abadir Decl. Ex. B, Termination Agreement ¶ 8. The pertinent clause in Monastiero's termination agreement reads:
8. GOVERNING LAW
This agreement shall be governed by and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to its laws of conflicts of laws. The Court of Common Pleas of Lancaster County, Pennsylvania, shall have exclusive jurisdiction and venue of all matters arising hereunder. Both parties hereby consent to such jurisdiction and venue and waived any right to a jury trial.
On November 6, 2013, Monastiero filed suit against appMobi in Alameda County Superior Court in California for breach of contract, compensatory and general damages, and penalties as provided by California Labor Code § 203. Complaint pgs. 3-5. According to Monastiero, appMobi breached the employment and termination agreements by failing to pay him commission fees ...