United States District Court, E.D. Tennessee, Greeneville Division
REPORT AND RECOMMENDATION
Clifton L. Corker United States Magistrate Judge.
20/20 Communications has filed a Motion to Transfer the
Claims of the Opt-In Plaintiffs [Doc. 46] and Supplemental
Motion to Transfer Claims of the Opt-in Plaintiffs [Doc. 66].
Plaintiffs have responded, opposing the relief [Doc. 63, 74].
The matter is before the undersigned pursuant to 28 U.S.C.
§ 636 and an Order of Reference from the District Court
also filed a Motion for a Rule 16 Conference and to Stay
Discovery [Doc. 55]. That motion was also referred to the
undersigned for a Report and Recommendation [Doc. 58].
Finally, Plaintiffs have filed a “expedited motion to
certify class and facilitate notice to potential opt-in
Plaintiffs” [Doc. 71]. This motion was referred to the
undersigned by order of reference[Doc. 76]. All of these
motions have been fully briefed and are ripe for resolution.
reasons stated herein, the undersigned RECOMMENDS
Defendant's motion to transfer [Doc. 46, 66] be GRANTED.
By granting this motion to transfer, Defendant's motion
to stay discovery is rendered MOOT [Doc. 55] as is
Plaintiffs' expedited motion to certify class [Doc. 71].
Thus, the undersigned RECOMMENDS these motions [Docs. 55, 71]
be DENIED AS MOOT.
April 5, 2017, Plaintiff James Cobble
(“Plaintiff”) filed this action under the Fair
Labor Standards Act, (“FLSA”), 29 U.S.C. §
201 et seq., on behalf of himself and other
employees similarly situated alleging 20/20 Communications
(“Defendant”) required him to work more than 40
hours a week without paying him overtime compensation [Doc.
1]. Plaintiff Cobble is a resident of Tennessee and worked
for Defendant in Tennessee. Since the filing of the
complaint, a number of non-resident prospective Plaintiffs
have given notice of their consent to opt-in, alleging they
are “similarly situated” as Plaintiff
Cobble. See 29 U.S.C. § 216(b). These
prospective Plaintiffs are from all over the United States.
is a Delaware corporation and maintains its principal place
of business in Tarrant County, Fort Worth, Texas, which is
located in the Northern District of Texas. Defendant's
motion to transfer the case to the Northern District of Texas
is based on two arguments: (1) Plaintiffs entered into a
written employment agreement which contained a forum-
selection clause designating the Northern District of Texas
as the forum in which disputes were to be litigated; and (2)
this Court lacks specific and general jurisdiction to address
Plaintiffs' claims. Plaintiffs oppose the motion.
claims this Court should transfer the opt-in Plaintiffs case
to the Northern District of Texas because each of the
prospective Plaintiffs entered into an employment contract
which contained a forum-selection clause, designating the
Northern District of Texas as the proper forum to address any
disputes involving the parties. A defendant's motion to
transfer a case pursuant to a valid forum-selection clause
should be considered a motion to transfer venue under 28
U.S.C. § 1404(a); Atl. Marine Constr. Co., Inc. v.
U.S. Dist. Ct. for W.D. Tex., --- U.S. __, 134 S.Ct.
568, 579 (2013). Section 1404(a) authorizes the district
court to transfer any civil action to another district
“where it might have been brought or to any district
… to which all parties have consented….”
The focus of a typical Section 1404(a) transfer motion is on
the “convenience of the parties and witnesses, [and] in
the interest of justice … to prevent the waste
‘of time, energy and money' and ‘to protect
litigants, witnesses, and the public against unnecessary
inconvenience and expense....'” 28 U.S.C. §
1404(a); Van Dusen v. Barrack, 376 U.S. 612, 616, 84
S.Ct. 805, 11 L.Ed.2d 945 (1964) (quoting Cont'l
Grain Co. v. Barge F.B.L.-585, 364 U.S. 19, 26, 27, 80
S.Ct. 1470, 4 L.Ed.2d 1540 (1960)). “[I]f a case is
transferred via § 1404(a), the law of the transferor
court applies.” K-Tex, LLC v. Cintas Corp.,
693 Fed.Appx. 406, 409 (6th Cir. 2017)(citing Van
Dusen, 376 U.S. at 642). In considering a transfer
motion, a plaintiff's choice of forum deserves
“foremost consideration” and should not be
disturbed unless the balance of factors strongly favors the
defendant. West Amer. Insurance Co. v. Potts, No.
89-6091, 1990 WL 104034 at *2 (6th Cir. July 25, 1990)
(unpublished) (citing Nicol v. Koscinski, 188 F.2d
537 (6th Cir. 1951)).
where there is a valid forum-selection clause, those
considerations do not enter in the analysis. A
plaintiff's choice of forum and the private-interest
factors such as the convenience of the parities and witnesses
are given no weight. Atl. Marine, 134 S.Ct. at
581-83. Moreover, a § 1404(a) transfer based on a
forum-selection clause also does not carry with it the
original venue's choice-of-law rules. Id. at
581-83. Rather, the Court's focus is on whether the forum
selection clause is valid in the first instance. If the
clause is valid, then the Supreme Court has held that it
“should be given controlling-weight in all but the most
exceptional cases.” Atl. Marine, 134 S.Ct. at
581 (citing Stewart Organization, Inc. v. Ricoh
Corp., 487 U.S. 22 (1988)). The burden is on the
plaintiff to show a transfer is not warranted. Id.
effort to show the “most exceptional case, ”
Plaintiffs make a number of objections. Id.
Plaintiffs claim that because Defendant has only produced
Agreements for roughly half of the opt-in Plaintiffs, it
cannot prove “that half of the opt-in Plaintiffs signed
the ‘Agreements' containing the venue selection
clause in the first instance.” [Doc. 63, pg .2]. For
those Plaintiffs, they argue that there is “no
evidence” of an offer and acceptance, the sine qua
non for an enforceable contract. In its reply, Defendant
notes that it has “provided unrebutted sworn
testimony that its electronic onboarding process made it
impossible for any opt-in Plaintiff to have become
an employee without entering into the Agreements.”
[Doc. 75, pg. 2] (emphasis in original).
1004 addresses Plaintiffs concerns about the existence of the
written contract. It provides that “[a]n original is
not required and other evidence of the content of a writing,
recording, or photograph is admissible if … all the
originals are lost or destroyed, and not by the proponent
acting in bad faith….” In this case, Defendant
has produced Agreements for roughly half of the Plaintiffs.
The ones it could not produce, Defendant alleges, were
destroyed, not in bad faith, but by its onboarding vendor,
Enwisen, “which had electronically maintained the
Agreements.” [Doc. 75, pg. 1, n. 3]. Defendant notes
that Enwisen stored the documents for only a short time after
Defendant terminated its business relationship with them. The
documents were then deleted. Plaintiffs do not challenge that
assertion. Instead, they simply claim a lack of evidence. It
is clear based on the record that all the job applicants (and
ultimately prospective Plaintiffs) followed the same
procedure to apply for a job with Defendant. All of them
signed the Agreement in order to be considered for
employment. Thus, given the unrebutted sworn testimony that
all of the Field Sales Manager applicants had to proceed
through Defendant's onboarding process and that this
process required the applicant to sign the Agreement
containing the forum-selection clause, the Court finds that
all Plaintiffs entered into the Agreement, and each Agreement
contained the forum-selection clause at issue.
then claim the forum-selection clause is not valid. For this
issue, the Sixth Circuit has instructed courts to look to
three factors when ...