James Wing, Plaintiff v. Clear Align, LLC, Defendant

2021 DNH 126

• Court: District Court, D. New Hampshire
• Decided: August 11, 2021
• Docket: 20-cv-1143-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

James Wing, Plaintiff

v. Case No. 20-cv-1143-SM Opinion No. 2021 DNH 126

Clear Align, LLC, Defendant

O R D E R

James Wing brings this action against his former employer,

Clear Align, seeking damages for, among other things, breach of

contract. Specifically, Wing claims that as an element of his

compensation, Clear Align promised to give him “employee option

shares in the company equivalent to 1.97%,” conditioned upon

board approval. But, says Wing, Clear Align never issued those

option shares. Additionally, Wing alleges that during the

course of his employment, he was subjected to sexual harassment

(and then retaliation) by Clear Align’s CEO, Angelique Irvin, in

violation of both New Hampshire and federal law.

Invoking the choice of law and forum selection clause in

Wing’s employment contract, Clear Align moves to dismiss the

complaint or, in the alternative, transfer this proceeding to the United States District Court for the Eastern District of

Pennsylvania. For the reasons discussed, that motion is granted

to the extent defendant seeks a change of venue. See generally

28 U.S.C. § 1404(a).

Background

According to Wing’s complaint, and based upon the

undisputed documents of record, the relevant facts are as

follows. Wing has been a well-respected member of the optical

components industry for several years. In the fall of 2017,

Clear Align began recruiting him to work for it as a “Diamond

Turning Manager.” On January 12, 2018, Clear Align presented

Wing with a written offer of employment, the relevant portions

of which provide:

As a regular employee, you will be eligible for the applicable Clear Align medical, vision, dental, short term and long term disability benefits which are paid in part by Clear Align. You may join the Clear Align benefits plan the first day of the month after joining our team full time. You will be required to sign an employee acknowledgment form and a nondisclosure agreement.

The purpose of this letter is only to confirm our discussion regarding your compensation and is not an employment contract. Clear Align is an at-will employer, and neither you nor Clear Align is bound to continue the employment relationship if either chooses, at its will, to end the relationship at any time.

2 James, we are personally committed to your success at Clear Align and we are truly excited about you joining our team. To that end, I would like to issue employee option shares in the company equivalent to 1.97% conditional on approval by the board of directors.

Offer Letter dated January 12, 2018 (document no. 1-1) (emphasis

supplied).

A month later, on his first day of work at Clear Align,

Wing signed the employment agreement referenced in his Offer

Letter. At this juncture, two provisions of that agreement are

relevant:

3. Salary. As compensation for services to be rendered to the Employer and in consideration for the covenants and agreements of the Employee contained herein, the Employer shall pay to the Employee an annual compensation per the offer letter dated 2/12/2018.1

* * *

9. Governing Law; Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Pennsylvania without regard to its conflict of law rules. Employer and Employee submit and consent to the exclusive jurisdiction of the state and federal courts located in the State of Pennsylvania, Counties of Philadelphia or Delaware or Montgomery or Chester

1 This date was hand-written and inserted on a blank line in the form agreement. It appears to be a typographical error and should reference the Offer Letter dated January 12, 2018, which discusses Wing’s annual salary. There is no suggestion that Wing ever received a supplemental offer letter that was dated February 12, 2018 (his first day of work).

3 with respect to any legal actions between them relating to this Agreement.

Employment Agreement (document no. 10-2), §§ 3, 9 (emphasis

Governing Legal Standard

This court has previously discussed the analysis employed

when a party invokes a contractual forum selection clause in

support of a motion to dismiss or change venue. See, e.g.,

Coronovirus Reporter v. Apple, Inc., No. 21-cv-047-LM, 2021 WL

1946428 (D.N.H. May 14, 2021); Expedition Leather LLC v. FC

Organizational Prod. LLC, No. 11-CV-588-JL, 2013 WL 160373

(D.N.H. Jan. 15, 2013). That discussion need not be repeated,

but the salient points are as follows.

As a preliminary matter, “[w]here the applicability of a

forum selection clause turns on disputed factual issues, ‘the

district court may weigh evidence, assess credibility, and make

findings of fact that are dispositive.’” Expedition Leather,

No. 11-CV-588-JL, 2013 WL 160373, at *1 (quoting Murphy v.

Schneider Nat’l, Inc., 362 F.3d 1133, 1139–40 (9th Cir. 2004)).

Next, in determining whether a forum selection clause is

enforceable and applicable to the litigation at hand, the court

4 considers several factors, including (1) whether the parties

entered into a valid contract of which the forum selection

clause was a part; (2) whether the forum selection clause is

mandatory or permissive; and (3) whether the clause actually

governs the claims asserted in the lawsuit. See Id. at *1.

Here, as the party invoking the forum selection clause, Clear

Align bears the burden of demonstrating that it is a part of an

enforceable contract between the parties, that it is mandatory

in nature, and that it applies to the claims advanced in Wing’s

complaint.

If Clear Align carries that burden, Wing must then assume a

burden of his own. Typically, when a party seeks to change

venue under 28 U.S.C. § 1404(a), “the moving party bears the

burden to establish that various private-interest and public-

interest factors collectively outweigh the deference due to the

plaintiff’s choice of forum, such that transfer would serve ‘the

convenience of parties and witnesses’ and promote ‘the interest

of justice.’” Alice Peck Day Mem’l Hosp. v. Vermont Agency of

Hum. Servs., Sec’y, No. 20-CV-919-LM, 2021 WL 736146, at *2

(D.N.H. Feb. 25, 2021) (quoting 28 U.S.C. § 1404(a)). But, when

the moving party seeks transfer pursuant to a mandatory forum

selection clause, the court’s analysis, as well as the parties’

respective burdens, change. “Where a Section 1404(a) motion is

5 filed to enforce a mandatory forum selection clause, the

plaintiff’s choice of forum is afforded no weight, the private-

interest factors are deemed to weigh ‘entirely in favor’ of

transfer, and it is the opposing party’s burden to establish

that the public-interest factors ‘overwhelmingly disfavor a

transfer.’ Id. (quoting Atl. Marine Constr. Co. v. U.S. Dist.

Ct. for W. Dist. Of Texas, 571 U.S. 49, 64, 67 (2013)).

Discussion

I. Scope and Validity of the Parties’ Contract.

Wing asserts that his Offer Letter and the Employment

Agreement are distinct contracts and must be interpreted as

such. And, because the Offer Letter – which contains the

conditional promise to give Wing shares in the company – has no

forum selection clause, he asserts that his breach of contract

and promissory estoppel claims may properly be brought in this

forum. Moreover, says Wing, he was improperly induced and/or

pressured to sign the Employment Agreement and, therefore, even

if it does apply to his claims, it should not be enforced

against him. See, e.g., Plaintiff’s Surreply Memorandum

(document no. 19) at 2-3) (arguing that Clear Align unfairly

presented him with the forum selection clause only after it

induced him to resign from his former job and asserting that,

“Clear Align seeks to graft a forum selection clause from an

6 agreement it first presented to Mr. Wing after his employment

began onto an agreement containing no forum selection clause

that Mr. Wing and Clear Align fully executed, and that Mr. Wing

acted in reliance upon before Mr. Wing’s employment began.”).

The court disagrees.

Under both New Hampshire and Pennsylvania law, it is plain

that the Offer Letter and the Employment Agreement must be read

together and interpreted with reference to each other. See

Cove-Craft Indus. Inc. v. B. L. Armstrong Co., 120 N.H. 195, 199

(1980); Bellak v. Franconia Coll., 118 N.H. 313, 314 (1978); see

also Sw. Energy Prod. Co. v. Forest Res., LLC, 2013 PA Super

307, 83 A.3d 177, 187 (2013); Trombetta v. Raymond James Fin.

Servs., Inc., 2006 PA Super 229, 907 A.2d 550, 560 (2006). Each

document references the other, they were executed within 30 days

of each other, and both address the benefits, terms, and

conditions of Wing’s employment. They must, then, be read and

interpreted as a whole. See Steinke v. Sunguard Fin. Sys., 121

F.3d 763, 770-71 & 771 n.5 (1st Cir. 1997) (applying

Pennsylvania law and concluding that the parties’ offer letter

and employment agreement constitute an integrated agreement).

7 That means, of course, that the choice of law and forum

selection clause of the Employment Agreement governs claims that

“relate to” both the Offer Letter and the Employment Agreement.

But, says Wing, the forum selection clause is unenforceable

against him on grounds that he detrimentally relied on the

absence of any such agreement when he accepted Clear Align’s job

offer and/or because enforcement of that provision would be

unfair or unjust. He has, however, failed to make such a

showing.

As the Court of Appeals for the First Circuit has noted,

“The Supreme Court has identified four possible grounds for

finding a forum selection clause unenforceable: (1) the clause

was the product of fraud or overreaching; (2) enforcement would

be unreasonable and unjust; (3) proceedings in the contractual

forum will be so gravely difficult and inconvenient that the

party challenging the clause will for all practical purposes be

deprived of his day in court; or (4) enforcement would

contravene a strong public policy of the forum in which suit is

brought, whether declared by statute or by judicial decision.”

Atlas Glass & Mirror, Inc. v. Tri-N. Builders, Inc., 997 F.3d

367, 375 (1st Cir. 2021) (citations and internal punctuation

omitted). Here, there is no suggestion that Clear Align misled

Wing about the forum selection clause or that its inclusion in

8 the Employment Agreement was the product of fraud or undue

influence. Nor does Wing claim that when presented with the

Employment Agreement, he asked Clear Align to remove the forum

selection clause or that he sought to negotiate alternate terms.

Rather, it seems that Wing accepted those terms and executed the

agreement as presented, thus evidencing the parties’ meeting of

the minds and Wing’s willingness to be bound by the terms of the

contract. See, e.g., Outside Television, Inc. v. Murin, 977 F.

Supp. 2d 1, 14 (D. Me. 2013) (“Although [plaintiff] did not

negotiate the agreement and it was generic, he was not told that

the agreement was non-negotiable. All that can be said is that

[plaintiff] made no attempt to negotiate terms with his new

employer. He has not established any fraud or undue

influence.”). Nor has Wing demonstrated that enforcement of the

forum selection clause would be unreasonable and unjust, or that

it would be unduly burdensome for him to litigate his claims in

a Pennsylvania forum. See Id. (“Although it will certainly be

inconvenient and expensive for [plaintiff] and his witnesses to

travel to Maine, [plaintiff] has not established that it would

be so ‘gravely difficult and inconvenient’ that he will be

deprived of his day in court.”) (quoting M/S Bremen v. Zapata

Off-Shore Co., 407 U.S. 1, 18 (1972)). Finally, Wing has not

shown that any public policy would be offended by the

enforcement of the forum selection clause. In short, he has

9 failed to demonstrate that any of the relevant factors

identified by the Supreme Court counsels in favor of

invalidating the forum selection clause.

II. The Forum Selection Clause is Mandatory.

“Under federal law, the threshold question in interpreting

a forum selection clause is whether the clause at issue is

permissive or mandatory. Permissive forum selection clauses,

often described as ‘consent to jurisdiction’ clauses, authorize

jurisdiction and venue in a designated forum, but do not

prohibit litigation elsewhere. In contrast, mandatory forum

selection clauses contain clear language indicating that

jurisdiction and venue are appropriate exclusively in the

designated forum.” Rivera v. Centro Medico de Turabo, Inc., 575

F.3d 10, 17 (1st Cir. 2009) (citation and internal punctuation

omitted).

Here, the forum selection clause in the parties’ agreement

provides that, “Employer and Employee submit and consent to the

exclusive jurisdiction of the state and federal courts located

in the State of Pennsylvania, Counties of Philadelphia or

Delaware or Montgomery or Chester with respect to any legal

actions between them relating to this Agreement.” Employment

Agreement at § 9 (emphasis supplied). That language is

10 undeniably “mandatory” and provides that the parties have agreed

to the “exclusive jurisdiction” of the state and federal courts

in the Commonwealth of Pennsylvania, meaning that any disputes

“relating to” their agreement must be brought in that forum.

See generally Autoridad de Energia Electrica de Puerto Rico v.

Vitol S.A., 859 F.3d 140, 146 (1st Cir. 2017); Alice Peck Day

Mem’l Hosp., 2021 WL 736146, at *3.

III. The Forum Selection Clause Governs Claims in this Action.

Having resolved that the Offer Letter and Employment

Agreement must be read together as an integrated whole, and that

the forum selection clause is both enforceable and mandatory,

the court can quickly resolve the final element of its inquiry:

the forum selection clause applies to all claims raised in

Wing’s complaint. As this court (McCafferty, C.J.) recently

noted:

It is the language of the forum selection clause itself that determines which claims fall within its scope. Here, the forum selection clause covers disputes that are “in any way related to” [plaintiff’s] Employment Agreement. The First Circuit has interpreted the phrase “related to” in forum selection clauses to be very broad in scope. The phrase “related to” is synonymous with other embracing language, such as “with respect to,” “in connection with,” and “associated with.” The First Circuit has explained that these phrases are broader in scope than the term “arising out of” and broader than the concept of a causal connection. Claims are “related to” an agreement if they are “connected by reason of an

11 established or discoverable relation.” Thus, claims may be “related to” a particular agreement although they seek to enforce rights that do not arise directly out of the agreement.

Cameron v. X-Ray Pro. Ass’n, No. 16-CV-343-LM, 2017 WL 680388,

at *2–3 (D.N.H. Feb. 21, 2017) (citations and internal

punctuation omitted); see also Autoridad de Energia Electrica de

Puerto Rico v. Vitol Inc., No. 09-CV-2242-SJM, 2016 WL 9443738

at *5-6 (D.P.R. Mar. 16, 2016) (discussing the broad

interpretation given to phrases like “with respect to,” “in

regard to” and “relating to” when interpreting forum selection

clauses). See generally Huffington v. T.C. Grp., LLC, 637 F.3d

18, 23 (1st Cir. 2011) (“Forum selection clauses using embracing

language [i.e., “with respect to” or “relating to,” or “in

connection with”] are common and have usually been construed

broadly. Courts have often contrasted this language with

narrower language - e.g., “to enforce,” “to construe” - that

could easily have been employed if a narrower focus were

intended.”) (footnote omitted); Coregis Ins. Co. v. Am. Health

Found., Inc., 241 F.3d 123, 128-29 (2d Cir. 2001) (noting that

the phrase “relating to” has a broad definition and “is not

necessarily tied to the concept of a causal connection”).

Wing’s breach of contract and promissory estoppel claims

(concerning to the company stock conditionally promised to him)

12 undeniably “relate” to the Employment Agreement since those

claims are based on the language of the agreement itself. And,

while the forum selection clause could have been written more

clearly and explicitly, that clause also governs Wing’s sexual

harassment and retaliation claims because they “relate to” his

employment with Clear Align. See, e.g., Cameron, 2017 WL

680388, at *3 (D.N.H. Feb. 21, 2017) (“Cameron argues that his

claims are not subject to the forum selection clause because

they exist independent of the Employment Agreement and do not

require reading or interpreting any language in the agreement to

determine defendants’ liability. Cameron’s argument might be

persuasive if the forum selection clause used a narrower phrase,

such as “enforce rights under,” “arise under,” or “derive from”

this agreement, rather than the broad phrase “in any way related

to” this agreement. While Cameron’s claims do not directly

invoke any rights or provisions in the Employment Agreement, the

broad forum selection clause in this case encompasses claims

that are factually connected to Cameron’s employment

relationship evidenced by the Employment Agreement.”) (emphasis

supplied); see also Sherlock v. Lifestyle Hearing Corp. (USA),

Inc., No. CV 19-743, 2019 WL 5102231, at *4 (E.D. Pa. Oct. 10,

2019) (concluding that a forum selection clause governing all

claims “arising out of or relating to this agreement” applied to

plaintiff’s Title VII wrongful termination claim because that

13 claim “has some ‘logical or causal connection’ to the employment

agreement”).

Conclusion

Clear Align has established that Wing’s Offer Letter and

his Employment Contract must be interpreted as a single,

integrated contract. It has also shown that Wing’s claims are

subject to the mandatory forum selection clause contained in

that contract. In response, Wing has not demonstrated that the

forum selection clause is unenforceable against him. So, for

the foregoing reasons, as well as those set forth in Clear

Align’s legal memoranda (documents no. 10-1 and 18), Clear

Align’s Motion to Dismiss, or Alternatively to Transfer Venue

Pursuant to 28 U.S.C. § 1404(a) (document no. 10) is granted in

part and denied in part. It is granted to the extent Clear

Align seeks a transfer to the United States District Court for

the Eastern District of Pennsylvania. In all other respects,

that motion is denied.

The Clerk of Court shall transfer this matter to the United

States District Court for the Eastern District of Pennsylvania

and close the case on this court’s docket.

14 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

August 11, 2021

cc: Benjamin T. King, Esq. Debra Weiss Ford, Esq. Samuel H. Martin, Esq.