United States District Court, N.D. California
ORDER GRANTING MOTION TO TRANSFER Re: Dkt. No. 10
WILLIAM H. ORRICK, District Judge.
Plaintiffs Robert Jay Rowen and Lotus Management, LLC, entered into contracts to provide content and other services for defendant Soundview Communications, Inc., which sells dietary supplements and publishes information on alternative medicine in its newsletter titled Second Opinion. The contracts included a covenant not to compete that may well be binding in Georgia but unenforceable in California, and a forum selection clause mandating that all suits be brought in Georgia. Notwithstanding the forum selection clause, plaintiffs filed this declaratory relief lawsuit in California, and Soundview moves to transfer or, in the alternative, to dismiss for improper venue. Since the forum selection clause is valid and that public interest factors do not make transfer inappropriate, I GRANT Soundview's motion to transfer.
I. FACTUAL BACKGROUND
Soundview entered into separate contracts with plaintiffs. The first was between Soundview and Lotus, a Nevada company. Under the Lotus Contract, Soundview paid Lotus to provide Soundview with an editor and author to create articles and materials for Second Opinion, to assist in creating and marketing dietary supplements, and to endorse products related to health and medical treatments. Ex. B. to the Declaration of Robert Rowen [Docket No. 14-10] ("Lotus Contract"), ¶ 3.
The second was between Soundview and Rowen, a well-known expert in alternative medicine who regularly publishes articles, blogs, and social media posts. Ex. A to the Rowen Decl. ("Rowen Contract"), at 1, 7. This contract required Rowen to perform all of the editorial and author duties required for Second Opinion and Soundview under the Lotus Contract. Id., ¶¶ 3, 5.
Both contracts contained forum selection and choice-of-law clauses. The Rowen Contract stated:
Rowen acknowledges and agrees that the services to be rendered by or through Lotus, as contemplated by said simultaneously executed Agreement between Lotus and Soundview, are to be rendered in Fulton County, State of Georgia, where SECOND OPINION will be compiled and published. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. It is further agreed that any and all claims or actions brought by any party to this Agreement against any other party to this Agreement shall be brought in a court of competent jurisdiction located in Fulton County, in the State of Georgia. Rowen expressly acknowledges, consents, agrees, and submits to the jurisdiction and venue of the courts of Fulton County, Georgia for the resolution of any disputes between parties.
Rowen Contract, ¶ 17. The Lotus contract contained almost identical forum selection and choice-of-law clauses:
Lotus, in its behalf and in behalf of any writer or editor furnished through Lotus, acknowledges and agrees the services to be rendered by or through Lotus, as contemplated herein, are to be rendered in Fulton County, State of Georgia, where SECOND OPINION will be compiled and published. This Agreement shall be governed by and construed in accordance with the laws of State of Georgia. It is further agreed that any and all claims or actions brought by any party to this Agreement against any other party to this Agreement shall be brought in a court of competent jurisdiction located in Fulton County, in the State of Georgia. The parties hereto expressly acknowledge, consent, agree, and submit to the jurisdiction and venue of the courts of Fulton County, Georgia for the resolution of any disputes between the parties.
Lotus Contract, ¶ 17. The parties changed the venue and the workplace in the forum selection clauses from Fulton County to Gwinnett County, Georgia, when they extended the terms of the contracts on May 10, 2013. Declaration of Garret Wood [Docket No. 10-2], Exs. 3, 4.
The Soundview Contract included a covenant not to compete, which stated:
Lotus agrees, in behalf of any editor furnished by Lotus, during the initial term or any renewal term of this Agreement, and for a period of two (2) years following the termination, withdrawal or resignation of any writer or editor furnished by Lotus or the cessation of such writer or editor to furnish editorial material pursuant to the provisions of this Agreement, that such writer or any agent or employee of Lotus shall be prohibited and restrained from writing for, contributing to or investing in another health newsletter, particularly an alternative health newsletter, or internet web site (or similar electronic medium) that is printing, circulating or distributing material oriented towards health or alternative health issues similar to or in competition with SECOND OPINION in the States of Georgia, Florida, California, New York and Texas, without the written consent of Soundview. By the execution hereof, Lotus, in behalf of any writer or editor furnished by Lotus, acknowledges that while SECOND OPINION circulates in states other than those named in this paragraph, a concentration of the circulation of SECOND OPINION exists in the states named in this ...