Opinion
No. 156492/2015.
05-23-2016
Annavil SIROY, Plaintiff(s), v. JOBSON HEALTHCARE INFORMATION LLC and Jeff Levitz, Defendant(s).
Akin Law Group by Robert D. Salaman, for plaintiff. Littler Mendelson, P.C. by Randy S. Gidseg, for defendants.
Akin Law Group by Robert D. Salaman, for plaintiff.
Littler Mendelson, P.C. by Randy S. Gidseg, for defendants.
DAVID B. COHEN, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in reviewing the underlying motions:
| Papers | Number |
|---|---|
| Notice of Motion to Dismiss, Affirmation and Exhibits | 1, 4 |
| Affirmation in Opposition and Affidavits | 2, 5 |
| Reply | 3, 6 |
Upon the foregoing cited papers, the decision/order on these motions to dismiss are as follows:
Annavil Siroy (“plaintiff”) commenced this employment action against her employer Jobson Healthcare Information LLC (“JHI”) and her supervisor at JHI, Jeff Levitz (“Levitz” and together with JHI the “defendants”) alleging that she was discriminated against during her employment by defendants. Prior to starting her employment at JHI, plaintiff executed an employment agreement. Section 13 of the agreement, entitled “Consent to jurisdiction and service of process,” the only section of the agreement to be written in all caps, clearly states:
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY TO THIS AGREEMENT ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY OBLIGATIONS OR LIABILITIES HEREUNDER, SHALL BE BROUGHT IN THE FEDERAL OR STATE COURTS OF THE STATE OF NEW JERSEY. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY IRREVOCABLY: (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCULISIVE JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY NATIONALLY RECOGNIZED OVERNIGHT COURIER OR BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO SUCH PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 15 BELOW; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; (E) AGREES THAT THE PARTIES RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW BUT SHALL NOT HAVE ANY RIGHT TO BRING PROCEEDINGS AGAINST THE OTHER PARTY IN THE COURTS OF ANY OTHER JURISDICTION; AND (F) AGREES THAT THE PROVISIONS OF THIS SECTION 13 RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, THE COMPANY MAY SEEK INJUNCTIVE OR EQUITABLE RELIEF TO ENFORCE THE TERMS OF THIS AGREEMENT IN ANY COURT OF COMPETENT JURISDICTION.
In the complaint, plaintiff alleges that she was subject to unlawful harassment and was treated differently due to her sex and race, that Levitz created a hostile working environment and after she complained to JHI, and that she was discriminatorily retaliated against. Plaintiff commenced this action on June 29, 2015. Defendants now move to dismiss the action based upon Section 13 of the employment agreement that requires that this suit be filed in New Jersey.
Forum selection clauses are prima facie valid unless shown by the resisting party to be unreasonable (Brooke Group v. JCH Syndicate 488, 87 N.Y.2d 530 [1996] ). It is the well-settled “policy of the courts of this State to enforce contractual provisions for choice of law and selection of a forum for litigation” (Koob v. IDS Fin. Services, Inc., 213 A.D.2d 26, 34 [1st Dept 1995] ). They provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements (id ., citing M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1 [1972] ). Forum selection clauses are not to be set aside unless a party demonstrates that the enforcement of such “would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, such that a trial in the contractual forum would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court” (Sterling Nat. Bank as Assignee of NorVergence, Inc. v. E. Shipping Worldwide, Inc., 35 AD3d 222 [1st Dept 2006] ).
Here, the forum selection clause is unambiguous and enforceable. It unambiguously selects New Jersey as the exclusive venue and choice of law for the matter and was consented to by plaintiff. Contrary to plaintiff's arguments, Section 13 of the employment agreement is not permissive or overreaching. On the contrary, Section 13 unequivocally states that all judicial proceedings ... shall be brought in the federal or state courts of the state of New Jersey; and that each party irrevocably: (a) accepts generally and unconditionally the exclusive jurisdiction and venue of New Jersey courts; and (b) waives any defense of forum non conveniens.
The language in Section 13 specifically encompasses all claims “arising out of or relating to” the employment agreement. Plaintiff's claims of employment discrimination and retaliation clearly arise and relate to her employment, and are thus governed by Section 13 and covered by her employment agreement (see Tong v. S.A.C. Capital Mgt., LLC, 52 AD3d 386 [1st Dept 2008] [holding that since plaintiff's claims arose out of events that occurred in the course of his employment by defendant and supervision by supervisor/manager of defendant, the were deemed subject to the employment agreement, which covered any dispute or controversy arising out of or relating to the agreement]; see also Petition of Levitt, 109 A.D.2d 502, 506 [1st Dept 1985] [arbitration clause in the relevant employment agreement stated “any controversy or claim arising out of, or relating to this agreement, or the breach thereof” made it “palpably clear that petitioner's claims of improper termination and entitlement to salary arise out of the employment agreement” and must be arbitrated] ). Further, plaintiff is a New Jersey resident and has not demonstrated why having the suit heard in her home state would be unreasonable, unjust or inconvenient. The plaintiff would not be deprived of her day in court if her claim was heard in New Jersey.
Plaintiff also argues that in any event, the suit against Levitz should not be dismissed as Levitz was not a party to the employment agreement and that since plaintiff and Levitz have no privity of contract, Levitz cannot seek to enforce the terms of the employment agreement. “Generally only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement” (Freeford Ltd. v. Pendleton, 53 AD3d 32, 38 [1st Dept 2008] ). However, there are three sets of circumstances under which a nonparty may invoke a forum selection clause (id. ):(1) an entity or individual that is a third-party beneficiary of the agreement (see ComJet Aviation Mgt. v. Aviation Investment Holdings, 303 A.D.2d 272 [1st Dept 2003] ); (2) parties to a “global transaction” who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose (see PT. Bank Mizuho Indonesia v. PT. Indah Kiat Pulp & Paper Corp., 25 AD3d 470 [1st Dept 2006] ); and (3) a nonparty that is “closely related” to one of the signatories can enforce a forum selection clause (see ComJet Aviation Mgt., 303 A.D.2d at 273 ; Direct Mail Prod. Servs. Ltd. v. MBNA Corp., 2000 WL 1277597 [SD N.Y.2000] ).
The Freeford Court further explained this third exception as follows:
It is well established that a nonsignatory may invoke a forum selection clause if the relationship between the nonparty and the signatory is sufficiently close so that the nonparty's enforcement of the forum selection clause is foreseeable by virtue of the relationship between the nonparty and the party sought to be bound. (See Direct Mail Prod. Servs. Ltd., 2000 WL 1277597 at *3–5, 2000 U.S. Dist LEXIS 12945 at *7–14 ; see also Dogmoch Intl. Corp. v. Dresdner Bank, 304 A.D.2d 396, 397 [1st Dept 2003].) “In discerning whether parties are closely related,' the U.S. Court of Appeals for the Second Circuit has looked to whether the non-signatory [is an] intended beneficiar[y] entitled to enforce' the clause in question” (Direct Mail Prod. Servs.
Ltd., 2000 WL 1277597 at *3, 2000 U.S. Dist LEXIS 12945 at *8–9, quoting Roby v. Corporation of Lloyd's, 996 F.2d 1353, 1358 [2d Cir1993], cert denied 510 U.S. 945 [1993] ). However, third-party beneficiary status is not required. (See Nanopierce Tech., Inc. v. Southridge Capital Mgt. LLC, 2003 WL 22882137, *5, 2003 U.S. Dist LEXIS 21858, *17 [SD N.Y.2003] [“(w)hile it may be true that third-party beneficiaries to a contract would, by definition, satisfy the closely related' and foreseeability' requirements, a third-party beneficiary status is not required” (citation omitted) ].)
Freeford Ltd. v. Pendleton, 53 AD3d 32, 40 [1st Dept 2008].
Courts have routinely enforced forum selection clauses in cases involving a non-signatory to the agreement. These cases have held that the non-signatory employee was sufficiently close to the employer who did sign the contract and was foreseeable (see Dunmire v. Lee, 14 Misc.3d 813, [Sup Ct 2006] [an employee acting as an agent of his employer may invoke the benefits of the employer's arbitration agreement to arbitrate claims with the agreement's counter party even where the employee is not a signatory]; Taberna Preferred Funding II, Ltd. v. Advance Realty Grp. LLC 45 Misc.3d 1204 [A] [Sup Ct, N.Y. County 2014] [sufficiently close exception applies not just to corporate subsidiaries but to individuals]; see also Hirschfeld Prods. v. Mirvish, 88 N.Y.2d 1054 [1996] [agents are afforded the benefit of arbitration agreements entered into by their principles to the extent the alleged misconduct relates to their behavior in their capacities as agents of the corporation] citing Roby v. Corporation of Lloyd's, 996 F.2d 1353, 1360 [2d Cir1993] [“If it were otherwise, it would be too easy to circumvent [arbitration] agreements by naming individuals as defendants instead of the [principals] themselves”] ).
Here, Levitz is being sued for an action taken as plaintiff's supervisor, a position he held while employed by JHI. The cause of action against Levitz' for employment discrimination cannot be brought against him in his personal capacity but only emanates from his employment and position as plaintiff's supervisor. Similarly, JHI's liability flows from Levitz actions taken on JHI's behalf as plaintiff's supervisor. As any liability to the defendants stems from Levitz' actions towards plaintiff as JHI's employee, Levitz is “closely related” to JHI, the signatory to the agreement. Further, as this matter only arises from plaintiff's employment with JHI, it certainly was foreseeable that any action arising from her employment would be subject to Section 13. Finally, permitting the claims against JHI and Levitz, which arise from the same facts and circumstances, to proceed in separate forums would be impractical, an inefficient use of judicial resources and could lead to inconsistent results.
For the above reasons it is hereby;
ORDERED this matter is dismissed. Plaintiff may move to restore this action only in the event that New Jersey State or Federal Courts refuse to exercise jurisdiction.
This constitutes the decision and order of the Court.