United States District Court, N.D. California, San Francisco Division
ORDER RE DEFENDANT'S MOTION TO TRANSFER [Re: ECF No. 14]
LAUREL BEELER, Magistrate Judge.
Plaintiff Dianne Marcotte sued her former employer, defendant Micros Systems, Inc., in state court for wrongful termination, and Micros removed the case to federal court. See Notice of Removal, ECF No. 1 at 1, Ex. A. Citing a forum selection clause in the parties' employment contract, Micros moved to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a), or in the alternative, to transfer the case to the District of Maryland. Motion to Dismiss or Transfer, ECF No. 14. For the reasons stated below, the court denies Micros's motion to dismiss and orders supplemental briefing limited to the issue of waiver of the forum selection clause.
A. The Parties and Their Locations
Micros is a publicly-traded company that sells "point of sale" terminals and systems for restaurants, hotels, and retail businesses. Complaint, Notice of Removal Ex. A, ECF No. 1, ¶ 5. It is a Maryland corporation with its principal place of business and headquarters in the State of Maryland. See Notice of Removal, ECF No. 1 at 1. The complaint alleges that Micros "maintains an office and/or conducts business in the county of San Francisco." Complaint, ¶ 2.
Ms. Marcotte was employed by Micros as a sales representative from about July 2000 to May 31, 2012. See id. ¶¶ 5, 9. At all relevant times, she was over 40 years old and resided in Contra Costa County, California. Id. ¶¶ 1, 18. When she worked for Micros, she lived in Danville, San Ramon, and Brentwood, and she worked from Micros offices in Alameda and the Bay Area and from her homes. Marcotte Decl., ECF No. 16, ¶ 3. She never worked in any Micros offices outside California, and during her 12 years with the company, she visited its head offices (apparently in Maryland) only for her initial training and "a few national meetings, for very brief periods." Id.
B. Ms. Marcotte's Performance at Micros
Ms. Marcotte "accrued a solid performance record" at Micros, which she alleges is shown by her sales figures, her account development, other performance metrics, and her "consistently good performance evaluations and assessments by her managers." Complaint ¶¶ 6-7. Ms. Marcotte's managers assured her that based on her performance, "she could count on having a secure position and continued employment at MICROS as long as she continued to provide satisfactory performance and ongoing commitment to her job duties." Id. ¶ 7. She alleges that these assurances constituted an implied-in-fact contract not to terminate her without cause. See id. ¶ 34.
C. Ms. Marcotte's Contracts with Micros
Each year during her tenure at Micros, Ms. Marcotte signed a "Compensation Plan" (hereafter, "Plan Agreement"). Tow Decl., ECF No. 14-2, ¶ 3. Each Plan Agreement contained a forum selection clause.
The Plan Agreements that Ms. Marcotte signed in 2000 and 2001 contained choice of law and forum selection provisions that stated:
This Agreement shall be construed in accordance with and be governed by the laws of the State of Maryland, United States, excepting the conflict of law rules of the State of Maryland, as if this contract were made and to be performed entirely within the State of Maryland. Final and binding arbitration shall be the [employee's] sole and exclusive remedy for any claim that MICROS breached this Agreement.... All arbitration proceedings shall be held in Columbia, Maryland....
Id. ¶ 6 (alteration and omissions in original).
Since 2002, the Plan Agreements contained a forum selection clause that contains "language identical to, or substantially identical to" the forum selection clause in the 2012 Plan Agreement. Id. ¶ 4. The 2012 Plan Agreement is comprised of two documents: (1) the Sales Compensation Plan, and (2) the Terms and Conditions. See Sales Compensation Plan, Tow Decl. Ex. B (incorporating by reference the Terms and Conditions); Terms and Conditions, Tow Decl. Ex. A. Paragraph 1 describes this two-document combination and the Agreement's expiration at the end of the applicable fiscal year:
1. General. The Compensation Plan (the "Plan") consists of these Plan Terms and Conditions and the Employee's individual plan document. Together, these documents describe the compensation that the Employee is eligible to earn. MICROS reserves the right to modify the Plan from time to time, including without limitation, changing salary, bonus (if applicable), commission, or the total compensation cap (if applicable). Notwithstanding anything to the contrary herein, this Plan shall expire at the end of the applicable fiscal year and does not automatically renew.
Tow Decl. Ex. A, ECF No. 14-2 at 5. The forum selection clause language is in paragraph 8, which also has a choice-of-law provision and a jury trial waiver:
8. Legal Matters. This Plan shall be construed in accordance with and be governed by the laws of the State of Maryland, United States, excepting the conflict of law rules of the State of Maryland, as if this contract were made and to be performed entirely within the State of Maryland. The parties consent to the exclusive jurisdiction and venue of the federal courts sitting in the state of Maryland for all claims or actions arising under or relating in any way to the Plan or the relationship between the parties, whether sounding in contract, tort, or otherwise, and regardless of whether persons or entities who are not party to this Plan are parties to such action; provided, however, that for any claims or actions for which the federal courts sitting in the state of Maryland would not have subject matter jurisdiction, the parties shall bring such claims or actions in the state courts of the State of Maryland, and consent to the exclusive jurisdiction and venue of the state courts of Maryland for all such claims or actions whether sounding in contract, tort, or otherwise, and regardless of whether persons or entities who are not party to this Plan are parties to such action. MICROS AND THE EMPLOYEE EACH UNCONDITIONALLY AND IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS PLAN, ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS PLAN, AND/OR THE RELATIONSHIP BETWEEN THE PARTIES, WHICH WAIVER IS INTENDED TO INCLUDE, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. Each party shall be solely responsible for its own costs, expenses and attorneys' fees.
Id. ¶ 7, Ex. A. The 2012 Plan Agreement is for fiscal year 2012 and has an effective date of July 1, 2011. See id. Ms. Marcotte signed it on August 11, 2011. Id.
Micros also required Ms. Marcotte to "acknowledge and be subject to" a non-compete agreement. Complaint ¶ 45. In pertinent part, the non-compete provision is as follows:
9. Covenants.. The following prohibitions apply for a period of one (1) year following the termination of the Employee's employment with MICROS for any ...