UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

ROBIN BARNEY, ) ) Plaintiff, ) ) v. ) No. 1:19-cv-01947-JRS-DML ) ZIMMER BIOMET HOLDINGS, INC., ) ) Defendant. )

Order Granting Motion to Transfer

The claims in this case—breach of contract and wrongful constructive discharge— were previously dismissed from an action filed two years ago and still pending in the Northern District of Indiana. After the Northern District dismissed the claims (the parties dispute whether the dismissal constituted dismissal with or without preju- dice), Plaintiff filed the same claims in Marion Superior Court. Defendant removed to this Court, contending that ERISA completely preempts Plaintiff’s breach-of-con- tract claim and that this Court has supplemental jurisdiction over Plaintiff’s state- law claim for wrongful constructive discharge. Plaintiff amended her complaint to drop the preempted, breach-of-contract claim and moved to remand. Defendant now moves to transfer this action to the Northern District of Indiana. Plaintiff opposes transfer, contending that venue in this Court is improper—not fall- ing within the parties’ forum-selection clause vesting jurisdiction exclusively in “the courts of the State of Indiana” and “the court of the United States of America for the Northern District of Indiana”—such that

, which requires that venue be proper in the transferor court, does not apply. Plaintiff further argues that

does not apply to removed actions. Plaintiff’s premise—that the forum-selection clause renders venue in this Court

improper—is mistaken. “If the federal venue statutes establish that suit may be brought in a particular district, a contractual bar cannot render venue in that district ‘wrong.’” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Tex.,

(2013). Plaintiff filed this action in Marion Superior Court, so venue is proper in this Court, as the Southern District geographically “embrac[es]” Marion Superior Court. See

(a). “Although a forum-selection clause does not render

venue in a court ‘wrong’ or ‘improper’ within the meaning of § 1406(a) or Rule 12(b)(3), the clause may be enforced through a motion to transfer under § 1404(a).” Atl. Ma- rine,

. “Unlike § 1406(a), § 1404(a) does not condition transfer on the initial forum’s being ‘wrong.’ And it permits transfer to any district where venue is also proper (i.e., ‘where [the case] might have been brought’) or to any other district to which the parties have agreed by contract or stipulation.” Id. The forum-selection clause therefore does not preclude application of § 1404(a) in

this case. The parties have agreed to the Northern District, the events at issue took place in the Northern District, and this very dispute has been before the Northern District for two years already. The interests of justice and the convenience of parties and witnesses therefore warrant transfer to the Northern District. Accordingly, Defendant’s motion to transfer (ECF No. 12) is granted and this case is transferred to the United States District Court for the Northern District of Indi- ana, South Bend Division. All other currently pending motions are denied without prejudice to refiling in the transferee court. SO ORDERED.

Date: 7/11/2019 JAMES R. SWEENEY II, JUDGE United States District Court Southern District of Indiana Distribution: Dana E. Becker MORGAN, LEWIS & BOCKIUS LLP [email protected] Troy S. Brown MORGAN LEWIS & BOCKIUS LLP [email protected] Annavieve C. Conklin DELANEY & DELANEY LLC [email protected] Kathleen Ann DeLaney DELANEY & DELANEY LLC [email protected] Stephen M. Judge SOUTHBANK LEGAL: LADUE CURRAN KUEHN [email protected] John David LaDue SOUTHBANK LEGAL: LADUE CURRAN KUEHN [email protected]