UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 11-81344-CIV-HURLEY

KERRY SACHS, RICHARD MACHT, 

AARON GORDON, ADAM PATTERSON,

PAUL RICHARD, RICHARD WAXMAN, 

GARY DOTY and BLAKE H. RYAN,

individually and on behalf of all others similarly situated,

plaintiffs,

vs.

BANKERS LIFE & CASUALTY CO., and 

SCOTT R. PERRY, individually and in his capacity as 

President of Bankers Life and Casualty Company, 

defendants.

_____________________________________________/

MEMORANDUM OPINION AND ORDER TRANSFERRING 

ACTION TO NORTHERN DISTRICT OF ILLINOIS & CLOSING FILE

THIS CAUSE is before the court on Defendants’ motion to dismiss for improper venue or

in the alternative to transfer [DE # 22]. For reasons discussed below, the court has determined to

grant the motion to transfer and deny the motion in all other respect.

Preface

Plaintiffs, insurance agents in Palm Beach County, Florida, sue their former employer,

Bankers Life & Casualty Company (“Bankers”), in a putative class action alleging that Bankers

intentionally misclassified its insurance agents as independent contractors rather than employees

and failed to pay employee benefits in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C.

§ 201 et seq and Florida’s Minimum Wage Act (FMWA), §448.10, Florida Statutes. 

The relationship between each individual plaintiff and Bankers was governed by an “Agent

Contract.” It is undisputed that the Agent Contract in each instance contained the following
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provision [DE# 22-1] :

Venue for any action between the parties arising under this Contract shall be in a

court located in Chicago, Cook County, Illinois.

The contract further classifies the insurance agents as independent agents and independent

contractors, and expressly disclaims an employer- employee relationship.

Bankers argues that the relationship between the parties is governed by this contract and that

the forum selection provision requires plaintiffs to file and litigate their claims in a forum located

in Chicago, Cook County, Illinois. Accordingly, Bankers seeks dismissal of the action for improper

venue under Fed. R. Civ. P. 12(b)(3), or alternatively, a transfer based on improper venue to the

United States District Court for the Northern District of Illinois pursuant to 28 U. S. C.§ 1404(a).

Standard of Review

A challenge to venue based upon a forum selection clause is appropriately brought as a

motion to dismiss the complaint under Fed. R. Civ. P. 12 (b)(3). Lipcon v. Underwriters at Lloyds,

London, 148 F.3d 1285, 1290 (11 Cir. 1998); Liles v. Ginn-La West End, Ltd., 631 F.3d 1242 th

(11 Cir. 2011). In deciding a motion to dismiss for improper venue, the court must take all th

allegations in the complaint as true unless contradicted by the defendant’s affidavits. When an

allegation is so challenged, the court may examine facts outside of the complaint to determine

whether venue is proper. Cantley v Ducharme, 2011 WL 611623 (S.D. Fla. 2011), citing Wai v

Rainbow Holdings, 315 F. Supp. 2d 1261 (S.D. Fla. 2004). 

In determining the propriety of transfer under Section 1404(a), the court should consider the

“convenience of the parties and witnesses” and “the interest of justice,” with a choice of forum

clause operating as “a significant factor that figures centrally in the district court’s calculus.” 
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P & S Business Machines, Inc. v. Canon USA, Inc., 331 F.3d 804 (11 Cir. 2003), quoting Stewart

th

Org., Inc. v. Ricoh Corp, 487 U.S. 22, 29, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988). “[W]hile

other factors might conceivably militate against a transfer ... the venue mandated by a choice of

forum clause rarely will be outweighed by other 1404(a) factors.” Id. See also In re Segal, 2011

WL 1582517 (11 Cir. 2011)(unpub). th

While it is true that in the ordinary motion for transfer under section 1404(a), the burden is

on the movant to show that the suggested forum is more convenient, this burden of persuasion

shifts where the parties have entered into a contract containing a valid, reasonable choice of forum

provision. In this situation, the burden falls on the party opposing the enforcement of the forum

selection clause “to show that the contractual forum is sufficiently inconvenient to justify retention

of the dispute.” P & S Business Machines at 807. Ultimately, when a court enforces a contractual

forum, it is not limiting “the plaintiff’s usual right to choose its forum, but is enforcing the forum

that the plaintiff has already chosen.” Id. 

Discussion

A forum selection clause can only be invalidated on a showing of a “bad faith motive,” i.e.

where the forum was chosen as a “means of discouraging [parties ] from pursing legitimate claims.”

Carnival Cruise Lines Inc. v. Shute, 499 US 585, 595 (1991), 111 S. Ct. 1522. 

Here, where Bankers is headquartered in Chicago, Illinois, and most of policy-making

employees responsible for classification of agents, including defendant Perry, are located in that

forum, the court finds no suggestion that Bankers chose this forum to prevent parties from pursuing

legitimate claims, and thus finds no evidence of fraud or bad faith motive sufficient to invalidate

the forum selection clause. 
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Plaintiffs nevertheless assert that the forum selection clause cannot be given effect because

it is included within a contract that is itself unlawful and unenforceable as a matter of law as one

contrary to the public policy underpinning the FLSA and FMWA. However, a forum selection

clause operates as a separate contract that is severable from the agreement in which it is contained

and is enforceable, as long as the forum selection clause itself was not included in the contract

because of fraud. Rucker v. Oasis Legal Finance LLC, 632 F.3d 1231 (11 Cir. 2011). In this case, th

the court finds no evidence that forum selection clause was included because of fraud or other

improper purpose. 

Thus finding the clause to be valid, the court next finds that it should be enforced because

plaintiffs have not met their burden of establishing that the contractual forum - Chicago, Illinois -

is sufficiently inconvenient to justify retention of the dispute. From the record available to this

court, it appears that the Agent Contracts were freely and fairly negotiated between experienced

business professionals. Further, plaintiffs do not contend Bankers engaged in fraud, duress

misrepresentation or other misconduct in inducing the agents to sign the contracts. 

 Plaintiffs claim that forcing them to litigate their claims in Illinois will “to some extent”

“prematurely legitimatize” the contracts that plaintiffs contend are unlawful, and would further

defeat the social policyunderpinning the Florida statutoryclass action schemes. However, plaintiffs

show no logical basis for the implied suggestion that Illinois courts are any less incapable of

divorcing an evaluation of the legitimacy of the forum selection clause from the validity of the

remaining portions of the contract. Further, plaintiffs make no showing that different substantive

law would apply if this case is heard in Illinois, and consequently do not meet their heavy burden

of showing that enforcement of the forum selection provision would contravene Florida’s strong
For updated court information, see unofficial website

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public policy of protecting Florida residents from predatory wage practices. 

In short, plaintiffs do not show that this case presents any exceptional circumstances which

which would warrant refusing to enforce the choice of forum provision in the contractual

agreements between the parties. Under binding precedent from the Eleventh Circuit Court of

Appeals and the United States Supreme Court, this court is therefore obligated to enforce this

distinct term of the parties’ agreements. 

It is accordingly ORDERED AND ADJUDGED :

1. The defendants’ motion to dismiss for improper venue or in the alternative to transfer is

GRANTED to the extent that it seeks transfer of this case to the United States District Court for the

Northern District of Illinois. The motion is DENIED in all other respects. 

2. The clerk shall TRANSFER this case to the United States District Court for the Northern

District of Illinois, CLOSE this file and DENY any all pending motions as MOOT.

3. This order of transfer does not preclude the parties from proceeding with voluntary

mediation before Magistrate Judge Dave Lee Brannon, as previously elected, should the parties so

choose. 

DONE AND ORDERED in Chambers at West Palm Beach, Florida this 24 day of May, th

2012.

_______________________________

Daniel T. K. Hurley

 United States District Judge

cc. All counsel 

 Magistrate Judge Dave Lee Brannon