Willard v. Ainsworth Game Technology Inc

• Court: District Court, W.D. Washington
• Decided: July 31, 2020
• Docket: 2:19-cv-01970
• Status: Unknown

Opinion

1 HONORABLE RICHARD A. JONES

7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 DENNIS WILLARD, 10 Plaintiff, Case No. 2:19-cv-01970-RAJ 11 v. ORDER 12 AINSWORTH GAME TECHNOLOGY, 13 INC., 14 Defendant. 15 I. INTRODUCTION 16 This matter comes before the Court on Defendant’s Motion to Transfer Venue 17 under 28 U.S.C. § 1404(a). For the reasons below, the Court GRANTS the motion. The 18 Court transfers this matter to the United States District Court for the District of Nevada. 19 II. BACKGROUND 20 Plaintiff Dennis Willard, a resident of Snohomish County, Washington, was 21 employed by Defendant Ainsworth Game Technology, Inc. (“AGT”) (Dkt. # 1-2 ¶ 1.1), a 22 Florida corporation with its headquarters and principal place of business in Las Vegas, 23 Nevada (Dkt. # 10 at 3). Plaintiff began his employment on July 31, 2017, as an account 24 executive engaged in sales of Defendant’s gaming equipment and served in that role until 25 his termination on July 15, 2019. Dkt. # 1-2 ¶¶ 3.1, 3.5. Under the company’s “Sale 26 Compensation Plan North America,” (“Comp Plan”) adopted on July 1, 2018, Plaintiff 27 1 received monthly commission payments between August and December 2018. Id. ¶ 3.3. 2 Beginning in January 2019, however, Defendant stopped providing Plaintiff commission 3 payments, despite several large sales. Id. ¶¶ 3.4, 3.5. Six months later, Defendant 4 terminated Plaintiff’s employment and informed him that he was “ineligible for any 5 additional [commission] payments based on his termination.” Id. ¶ 3.6. Defendant 6 alleges Plaintiff was terminated for “repeated failures to fulfill the obligations of his job 7 and repeated failures to follow company policies, including policies regarding the use of 8 the corporate credit card, among other reasons.” Dkt. 8 ¶ 2.8. 9 On November 12, 2019, Plaintiff filed a complaint for unpaid wages in Snohomish 10 County Superior Court alleging that Defendant violated Washington wage laws, RCW 11 49.48, et seq. and RCW 49.52.50. Dkt. # 1-2 ¶ 4.4. On December 3, 2019, Defendant 12 removed the case to this Court based on diversity of citizenship pursuant to 28. U.S.C. 13 §§ 1332(a) and 1441. Dkt. # 1 at 1. A week later, Defendant responded to the complaint 14 and filed counterclaims, alleging breach of contract and conversion. Dkt. # 8 ¶ 3.2-4.4. 15 Specifically, Defendant alleged that Plaintiff breached two provisions of the parties’ 16 “Confidentiality, Non-Disclosure, Non-Competition, Non-Solicitation and Assignment of 17 Inventions Agreement” (“NDA”) (Dkt. # 8 ¶ 2.7): (1) Plaintiff violated the “Return of 18 Company Materials” provision by failing to account for company credit card charges and 19 for failing to relinquish his participation in Defendant-sponsored golf events or, 20 alternatively, return Defendant’s sponsorship after his termination (id. ¶¶ 3.3-3.5); and (2) 21 Plaintiff violated the “Covenant Not to Compete and No Solicitation” by engaging with 22 Defendant’s current and potential customers at the golf events and thus disadvantaging 23 Defendant within 90 days of Plaintiff’s termination (id. ¶¶ 3.6-3.7). 24 On December 20, 2019, Defendant filed this motion to transfer case venue to the 25 district of Nevada. Dkt. # 10. Defendant asserts that transfer is required under the 26 NDA’s forum selection clause (id. at 2), which states in relevant part:

27 To the extent that any lawsuit is permitted under the Agreement, I hereby express consent to the personal and exclusive jurisdiction and venue of the state and 1 federal courts located in Nevada for any lawsuit filed against me by the Company. 2 Dkt. # 12-2 ¶ 8. 3 Plaintiff argues that his wage claims do not fall under the NDA, but rather the 4 Comp Plan, which has no forum selection clause requiring a transfer. Dkt. # 14 at 1. 5 Plaintiff further notes that his claims are governed by Washington law and that he, as a 6 lifelong Washington resident, chose to file the claims in Washington. Id. at 2. Plaintiff 7 alleges that Defendant’s assertion of counterclaims based on the NDA was a “blatant 8 attempt” to make Plaintiff’s pursuit of wage claims “as expensive and inconvenient” as 9 possible. Id. 10 III. DISCUSSION 11 “When the parties have agreed to a valid forum-selection clause, a district court 12 should ordinarily transfer the case to the forum specified in that clause.” Atl. Marine 13 Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 62 (2013). “[A] valid 14 forum-selection clause [should be] given controlling weight in all but the most 15 exceptional cases.” Id. at 63. When the contract at issue contains a forum selection 16 clause, the court must “adjust the forum non conveniens analysis in three ways: (1) the 17 plaintiff’s choice of forum merits no weight; (2) the court should not consider arguments 18 about the parties’ private interests; and (3) a transfer of venue will not carry with it the 19 original venue’s choice of law rules.” In re Orange, S.A., 818 F.3d 956, 961 (9th Cir. 20 2016) (internal citations and quotations omitted). The court’s discretion in deciding 21 whether to transfer a case where a forum selection clause exists is limited to 22 consideration of public interest factors. 571 U.S. at 64. “Because those factors will 23 rarely defeat a transfer motion, the practical result is that forum-selection clauses should 24 control except in unusual cases.” Id. 25 A. Applicability of the Forum Selection Clause 26 The first question here is not whether the forum selection clause is valid, but 27 1 whether the claims are governed by the NDA and are thus subject to the clause. In In re 2 Orange, Defendant Orange, S.A., a French multinational telecommunications company, 3 petitioned the court to dismiss Plaintiff Telesocial’s claims based on a forum non 4 conveniens argument. Id. This argument relied on the forum selection clause in the 5 parties’ nondisclosure agreement, which required all disputes to be “submitted to the 6 Court of Paris.” Id. at 962. The court held that Telesocial’s claims, including claims for 7 violations of the Computer Fraud and Abuse Act, breach of contract for violating 8 Telesocial’s “Terms of Use,” and other California-law claims arising from the theft of 9 trade secrets and proprietary software code, were not covered under the terms of the 10 parties’ nondisclosure agreement and were, therefore, not subject to the forum selection 11 clause. Id. at 962. 12 While the facts here appear analogous to those in In Re Orange, the similarities 13 end with Defendant’s counterclaims. Of course, Defendant’s counterclaim that Plaintiff 14 violated the NDA by participating in golf events after his termination (but while the non- 15 solicitation clause was still in effect) does not appear to pertain to Plaintiff’s claim for 16 unpaid wages during the last six months of his employment. However, Defendant’s 17 second counterclaim, alleging Plaintiff violated the NDA by failing to account for his 18 company credit card expenses, is directly related to the facts surrounding Defendant’s 19 wage claim. Indeed, Defendant contends that this failure is the reason—at least in part— 20 why Plaintiff did not receive commission payments. Dkt. # 17 at 3. According to 21 Defendant, Plaintiff “did not fulfill required conditions under the [Commission] Plan to 22 be eligible for commissions.” Id. Therefore, at least one of the counterclaims filed by 23 Defendant goes to the core of Plaintiff’s claims, subjecting Plaintiff’s claim to the NDA’s 24 forum selection clause. 25 B. The Interests of Justice 26 The second question is whether public interest factors override the parties’ forum 27 selection clause. Plaintiff contends that Defendant filed breach of contract counterclaims 1 only to gain a “tactical advantage” over Plaintiff. Dkt. # 14 at 10. Yet, regardless of his 2 motives, Defendant has not deprived Plaintiff of the opportunity to litigate his claims. 3 Plaintiff may still pursue his breach of contract claims against Defendant in federal 4 district court, albeit in a different state. The Court is unpersuaded that Plaintiff’s 5 inconvenience presents a public interest factor sufficient to defeat the transfer motion. In 6 the absence of additional public interest factors or exceptional circumstances compelling 7 the denial of the motion, the Court has no choice but to transfer the case to the parties’ 8 agreed upon forum. 9 IV. CONCLUSION 10 For the reasons stated above, the Court GRANTS the motion to transfer venue and 11 orders the transfer of the case to the District of Nevada.

12 DATED this 31st day of July, 2020. 13

14 A 15 16 The Honorable Richard A. Jones 17 United States District Judge 18

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