UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEFFREY REVIS, Plaintiff, v. Civil Action No. 18-1479 (CKK) TUSTIN CONSTRUCTION SERVICES, LLC,

Defendant.

MEMORANDUM OPINION (August 21, 2018)

Plaintiff Jeffrey Revis brings this action against his former employer, Tustin Construction

Services, LLC (“TCS”) for wages allegedly owed following Plaintiff’s termination. Pending

before the Court is Defendant’s [10] Motion for Change of Venue. Defendant asks the Court to

transfer this action to the United States District Court for the Eastern District of Pennsylvania.

Defendant’s Motion is, in large part, based on the fact that the parties previously signed an

agreement containing a forum selection clause whereby they stipulated that disputes of this

nature would be litigated in Pennsylvania. Upon consideration of the pleadings, 1 the relevant

legal authorities, and the record as a whole, the Court GRANTS Defendant’s motion to change

venue. The Court finds that this action could have been brought in the Eastern District of

Pennsylvania originally, and that private and public interest factors weigh in favor of transfer.

1 The Court’s consideration has focused on the following documents: • Def.’s Mot. for Change of Venue (“Def.’s Mot.”), ECF No. 10; • Pl.’s Opp’n to Def.’s Mot. to Transfer (“Pl.’s Opp’n”), ECF No. 14; and • Def.’s Reply to Pl.’s Opp’n to Def.’s Mot to Transfer Venue (“Def.’s Reply”), ECF No. 15. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 1 I. BACKGROUND

This lawsuit arises from Plaintiff Jeffrey Revis’ employment with Defendant TCS. See

Compl., ECF No. 1-3, ¶ 6. Plaintiff alleges that he was terminated “for no reason other than to

avoid paying” him a bonus and other wages that Plaintiff alleges he is owed. Id. ¶ 24. Among

other things, Plaintiff claims that Defendant is obligated to pay him $12,000 under a Non-

Disclosure and Non-Competition Agreement that Plaintiff and Defendant entered into when

Plaintiff was first hired. Id. ¶¶ 18-20. Plaintiff alleges that “Section 2.2 of the Non-Disclosure

Agreement provides that Revis is to be paid $12,000 upon termination in consideration for his

not obtaining employment in a territory where Tustin is licensed.” Id. ¶ 19. Plaintiff alleges that

Defendant has failed to pay him this amount. Id. ¶ 20. His lawsuit is expressly based, in part, on

this obligation. Id. ¶ 30.

Plaintiff originally brought this lawsuit in the Superior Court for the District of Columbia.

Defendant then removed it to this Court based on diversity of citizenship. See Notice of

Removal, ECF No. 1. After filing its Answer, Defendant moved to transfer this action to the

Eastern District of Pennsylvania. That motion has been fully briefed and is ripe for resolution.

II. LEGAL STANDARD

Pursuant to

(a), a court may transfer a case to any other district where it

might have been brought “[f]or the convenience of parties and witnesses, in the interest of

justice.” The party moving to transfer venue bears the burden of establishing that convenience

and the interests of justice weigh in favor of transfer. See Int’l Bhd. of Painters & Allied Trades

Union v. Best Painting and Sandblasting Co., Inc.,

(D.D.C. 1985).

Section 1404(a) vests discretion in the district court to conduct an “individualized, case-by-case”

2 analysis of whether transfer is appropriate. Stewart Org., Inc. v. Ricoh Corp.,

(1988).

III. DISCUSSION

Although the parties agree that venue is technically valid in this District, the Court will

nonetheless exercise its discretion to transfer this action to the Eastern District of Pennsylvania in

the interest of justice pursuant to

(a). Determining whether transfer is

appropriate pursuant to Section 1404(a) calls for a two-part inquiry. First, the Court must ask

whether the transferee forum is one where the action “might have been brought” originally. §

1404(a). Second, the Court must consider whether private and public interest factors weigh in

favor of transfer. See Lentz v. Eli Lilly & Co.,

(D.D.C. 2006). In this

case, the Court concludes that this action could have been brought originally in the Eastern

District of Pennsylvania, and that private and public interest factors weigh in favor of

transferring the case to that court.

a. Plaintiff Could Have Brought this Action in the Eastern District of Pennsylvania

Venue would have been proper in the Eastern District of Pennsylvania if this action had

been brought there originally. Plaintiff argues that venue would not have been proper in the

Eastern District of Pennsylvania because “all operable facts took place in the District of

Columbia.” Pl.’s Opp’n at 7-8. Even if the Court were to agree that “all operable facts” took

place in D.C.—and it does not—this argument misstates the standard for venue. It ignores the

fact that venue would be proper in this case in any “judicial district in which any defendant

resides, if all defendants are residents of the State in which the district is located.”

(b)(1).

3 In this case, the sole Defendant, TCS, resides in the Eastern District of Pennsylvania. Its

principal place of business is located in that district, in Norristown, Pennsylvania. See Decl. of

James Tustin Sasser, ECF No. 10-2 (“Sasser Decl.”), ¶ 2. Plaintiff makes no attempt to dispute

this fact. Accordingly, this action could have been brought originally in the Eastern District of

Pennsylvania.

b. The Private and Public Interest Factors Weigh in Favor of Transfer

The second step of the Court’s analysis is determining whether the relevant private and

public interest factors weigh in favor of transferring the action. The Court finds that both sets of

factors weigh in favor of transfer in this case.

i. Private Interest Factors

In considering whether to transfer an action, the Court generally considers the following

private interest factors: “(1) the plaintiffs’ choice of forum, unless the balance of convenience is

strongly in favor of the defendants; (2) the defendants’ choice of forum; (3) whether the claim

arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses of the

plaintiff and defendant, but only to the extent that the witnesses may actually be unavailable for

trial in one of the fora; and (6) the ease of access to sources of proof.” Greater Yellowstone

Coalition v. Bosworth,

(D.D.C. 2001).

Generally, the first factor—Plaintiff’s choice of forum—carries significant weight.

However, “where the parties have entered into a valid forum selection clause, ‘the plaintiff’s

choice of forum merits no weight.’” Glycobiosciences, Inc. v. Innocutis Holdings, LLC,

(D.D.C. 2016) (quoting Atl. Marine Const. Co. v. U.S. Dist. Court for W.

Dist. of Texas,

(2013)). Instead, when determining where an action should be

4 tried, “contractually valid ‘forum-selection clauses should control except in unusual

circumstances.’”

Here, the parties have agreed to a contractually valid forum selection clause. As alleged

in Plaintiff’s Complaint, the parties signed a Non-Disclosure and Non-Competition Agreement

when Plaintiff was first hired. That agreement includes a forum selection clause. See Non-

Disclosure and Non-Competition Agreement, ECF No. 10-4 (“NDA”), ¶ 4. That clause states

that “any action or proceeding seeking to enforce any provision of, or based on any right arising

out of, this Agreement shall be brought against either of the parties in the courts of the

Commonwealth Pennsylvania.”

This clause indicates that the parties previously agreed that

their choice of forum is Pennsylvania, not D.C. This is powerful evidence that the private

interest factors weigh in favor of transfer.

Plaintiff concedes that “[i]t is true that when the parties have agreed to a valid forum-

selection clause, a district court should generally transfer the case to the forum identified in the

clause and only under extraordinary circumstances unrelated to convenience should the forum

selection clause be denied.” Pl.’s Opp’n at 7. However, Plaintiff attempts to resist the effect of

the forum selection clause in this case by making two arguments. First, Plaintiff argues that the

subject matter of the lawsuit is not covered by the clause. This argument is untenable. The

clause clearly states that “any action or proceeding seeking to enforce any provision of, or based

on any right arising out of, this Agreement shall be brought” in Pennsylvania. NDA ¶ 4

(emphasis added). The matter currently pending before the Court is clearly an action to enforce

a provision of the NDA. In Plaintiff’s Complaint, he alleges that Defendant “failed to pay

[Plaintiff] $12,000 owed to him in exchange for his signing the Non-Disclosure Agreement.”

Compl. ¶ 20. He seeks as unpaid wages “$12,000 in consideration for having signed the Non-

5 Disclosure Agreement.” Id. ¶ 30; see also id. ¶ 27 (“Tustin owes Revis . . . $12,000 in

consideration for Revis having signed the Non-Disclosure Agreement.”). It is true that Plaintiff

also claims in this lawsuit that he is entitled to other forms of compensation that are unrelated to

the NDA. See, e.g., id. ¶¶ 11-17 (claiming entitlement to certain income based on agreements

between the parties set forth in an Offer Letter). But the presence of these allegations does not

change the Court’s conclusion that transfer is in the interest of justice. Despite these allegations,

this case is still, at least in part, an action to enforce a provision of the NDA. Such an action

should be tried in Pennsylvania, pursuant to the parties’ agreement. Even if some aspects of

Plaintiff’s claims could be tried in this Court, it would be inefficient and wasteful to bifurcate

Plaintiff’s claims, transfer only some, and have this dispute be litigated in two separate forums.

Second, Plaintiff argues that “the parties have not entered into a valid forum selection

clause because there is no consideration to render the Agreement valid.” Pl.’s Opp’n at 7. This

argument is not persuasive either. Plaintiff argues that there was no consideration for the NDA

because Defendant has failed to pay Plaintiff the $12,000 Plaintiff is allegedly owed under that

agreement. But the fact that Defendant has—allegedly—failed to live up to its end of the

bargain does not mean that there was no consideration for the contract at the time of formation.

There was consideration. Plaintiff was promised $12,000 (in addition to $5,000 paid at the

outset of his employment) in return for Plaintiff’s promise to hold certain matters confidential

and to not compete with Defendant. If Plaintiff’s allegations are accepted as true, it may mean

that Defendant has breached the terms of the NDA, but it does not mean that the NDA is invalid

for lack of consideration. Plaintiff appears to acknowledge as much in his Complaint by

asserting claims based on Defendant’s allegedly owing Plaintiff money under the NDA. Those

claims of course assume the validity of the NDA in the first instance.

6 The Court would transfer this matter to the Eastern District of Pennsylvania based solely

on the parties’ forum selection clause. However, the Court also notes that additional private

interest factors also weigh in favor of transfer. Defendant’s choice of forum is the Eastern

District of Pennsylvania. Moreover, the claims in this case appear to have arisen predominately

in Pennsylvania. Although the parties dispute the extent to which Plaintiff’s work had any

connection to the District of Columbia, a considerable majority of Plaintiff’s work for Defendant

during the course of his employment was conducted out of Pennsylvania. See Sasser Decl. ¶ 7;

May 20, 2013 Offer Letter, ECF No. 10-3, ¶ XVII. The negotiations for Plaintiff’s employment

with Defendant took place in Pennsylvania. Id. ¶ 5. In addition, any alleged breach by the

Defendant of its obligations to pay Plaintiff would have occurred in Pennsylvania, because that is

where Defendant is headquartered and where its payroll is issued. Id. ¶ 19. Moreover,

Defendant’s witnesses and its financial records as well as other documents that would be relevant

to this case are all in Pennsylvania. Id. ¶ 18.

In opposing Defendant’s motion to change venue, Plaintiff attempts to identify activities

of the Defendant that occurred outside of Pennsylvania. See, e.g., Pl.’s Opp’n at 1-2. This

attempt appears to be misguided. The activities identified by Plaintiff are those of the “Tustin

Group,” a separate business entity that is not the same as Defendant TCS. Defendant has

presented evidence that the two entities are distinct and operate independently of each other. See

Def.’s Reply at 1, Exs. A, B. Apparently unlike Tustin Group, Defendant TCS is located solely

in Pennsylvania. See Sasser Decl. ¶ 2. It has no physical locations outside of that state. Id.

In sum, largely because the parties previously agreed to litigate disputes like this one in

Pennsylvania through a valid forum selection clause, the private interest factors weigh in favor of

transfer.

7 ii. Public Interest Factors

The public interest factors—although less significant in this case than the valid forum

selection clause—also weigh in favor of transfer. Those factors include “(1) the transferee’s

familiarity with the governing laws and the pendency of related actions in the transferee's forum;

(2) the relative congestion of the calendars of the potential transferee and transferor courts; and

(3) the local interest in deciding local controversies at home.” Greater Yellowstone Coalition,

.

Here, the NDA contains a choice of law provision that states that the agreement is to be

governed by Pennsylvania law. NDA ¶ 3. Pennsylvania courts, including federal ones, are more

suited to adjudicate lawsuits that raise issues of that state’s law. Moreover, the Court agrees with

the Defendant that the enforcement of valid and agreed-upon forum selection clauses is in the

public interest.

* * *

In sum, the Court concludes that this case could have originally been brought in the

Eastern District of Pennsylvania, and that the balance of the private and public interest factors

weigh in favor of transferring this action to that District. Accordingly, the Court will exercise its

discretion under

(a) to transfer this action to the Eastern District of

Pennsylvania.

8 IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s motion to change the venue

of this action to the United States District Court for the Eastern District of Pennsylvania. An

appropriate order accompanies this Memorandum Opinion.

Dated: August 21, 2018 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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