IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

OWEN J. ROGAL, D.D.S., P.C. : CIVIL ACTION

d/b/a THE PAIN CENTER :

:

 vs. : NO. 05-6073

:

SKILSTAF, INC. :

 

OWEN J. ROGAL, D.D.S., P.C. : CIVIL ACTION

d/b/a THE PAIN CENTER :

:

 vs. : NO. 05-6074

:

SKILSTAF, INC. :

MEMORANDUM AND ORDER

JOYNER, J. June 26, 2006

These cases have been brought before the Court on motions of

the defendant, Skilstaf, Inc. to Transfer Venue and to Dismiss

the plaintiff’s complaints for failure to exhaust administrative

remedies pursuant to Fed.R.Civ.P. 12(b)(6). As we shall grant

the motions to transfer venue, we do not reach the motions to

dismiss. 

Factual Background

 These cases, which originated in the Court of Common Pleas

of Philadelphia County, arise out of the plaintiff’s rendering of

chiropractic treatment to Dennis and Dianne Berry. In October,

2005, plaintiff filed two separate actions against Skilstaf,

Inc., the employee leasing company which provided the group

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 Both Dennis and Dianne Berry executed assignment of benefits forms 1

thereby vesting Plaintiff with the right to bring suit for payment of their

medical bills in his own name. (See Plaintiffs’ Exhibit “B” to Plaintiffs’

Complaints). 

2

health plan under which the Berrys were covered for medical

benefits as the result of the care which he gave to each of them,

asserting common law claims for breach of contract, bad faith and

deceit or fraud. Defendant removed the cases to this Court on 1

the grounds that, as plaintiff was seeking to recover benefits

due under an employee benefits plan, his claims were pre-empted

by the Employee Retirement Income Security Act, 29 U.S.C. §1001,

et. seq. (“ERISA”). Skilstaf now moves for the dismissal of

this case in its entirety on the grounds that the plaintiff has

failed to exhaust the administrative remedies available to him

under the plan documents and/or to transfer venue of this action

to the United States District Court for the Middle District of

Alabama.

Discussion

 By the motions to transfer venue, Defendant invokes 28

U.S.C. §1404(a), which provides:

For the convenience of the parties and witnesses, in the

interest of justice, a district court may transfer any civil

action to any other district or division where it might have

been brought. 

 The purpose of §1404(a) has been said to be “to prevent the

waste of time, energy and money and to protect litigants,

witnesses and the public against unnecessary inconvenience and

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3

expense, not to shift the inconvenience from one party to the

other.” Dominy v. CSX Transporation, Inc., Civ. A. No. 05-487,

2006 U.S. Dist. LEXIS 9422 at *5-*6 (E.D.Pa. March 9, 2006),

quoting Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11

L.Ed.2d 945 (1962) and Superior Precast, Inc. v. Safeco Insurance

Company of America, 71 F.Supp.2d 438, 446 (E.D.Pa. 1999). 

Generally speaking, district courts have broad discretion in

deciding whether to transfer a case under §1404(a), although a

motion to transfer a case is not to be granted liberally. 

Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108

S.Ct. 2239, 2244, 101 L.Ed.2d 22 (1988); Banket v. GC America,

Inc., Civ. A. No. 05-576, 2005 U.S. Dist. LEXIS 23550 at *9

(E.D.Pa. Oct. 11, 2005). Indeed, “[i]t is black letter law that

a plaintiff’s choice of a proper forum is a paramount

consideration in any determination of a transfer request and that

choice should not be lightly disturbed.” Shutte v. Armco, 431

F.2d 22, 25 (3d Cir. 1970). 

 The burden of establishing the inconvenience of the forum

rests with the proponent of transfer. In re Amendt, No. 05-2458,

2006 U.S. App. LEXIS 3944 at *7 (3d Cir. Feb. 16, 2006); Banket,

at *9-*10. However, the moving party is not required to show

truly compelling circumstances for change of venue, but rather

that all relevant things considered, the case would be better off

transferred to another district. Dominy, supra., citing In re

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United States, 273 F.3d 380, 388 (3d Cir. 2001). 

 In determining whether to transfer a case, the court must

first determine whether the action “might have been brought” in

the proposed transferee district. Banket, at *10, citing Van

Dusen, 376 U.S. at 616, 84 S.Ct. at 809. Assuming that this

requirement has been satisfied, the court must then assess a

number of private and public interest factors in addition to

those enumerated in §1404(a) (convenience of the parties and

witnesses and the interests of justice). Jumara v. State Farm

Insurance Company, 55 F.3d 873, 879 (3d Cir. 1995). 

Specifically, the private interests have included: (1) the

plaintiff’s forum preference as manifested in the original

choice; (2) the defendant’s choice of forum; (3) where the claim

arose; (4) the convenience of the parties as indicated by their

relative physical and financial conditions; (5) the convenience

of the witnesses–-but only to the extent that the witnesses may

actually be unavailable for trial in one of the fora; and (6) the

location of books and records. Amendt, at *8, citing Jumara, at

879-80. The public interests have included: (1) the

enforceability of the judgment; (2) practical considerations that

could expedite or simplify trial; (3) the relative administrative

difficulty in the two fora resulting from court congestion; (4)

the local interest in deciding local controversies at home; (5)

the public policies of the fora; and (6) in a diversity case, the

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5

familiarity of the two courts with state law. Id. 

 Within this framework, a forum selection clause is treated

as a manifestation of the parties’ preferences as to a convenient

forum. Jumara, at 880. Because questions of venue and the

enforcement of forum selection clauses are essentially procedural

rather than substantive, federal law is used to determine the

effect of a forum selection clause. Wall Street Aubrey Golf, LLC

v. Aubrey, No. 05-5027, 2006 U.S. App. LEXIS 13817 at *4 (3d Cir.

June 5, 2006), citing Jumara at 877. Transfer is not available,

however, when a forum selection clause specifies a non-federal

forum; in that case, the district court would have no choice but

to dismiss the action so it could be filed in the appropriate

forum so long as dismissal would be in the interests of justice. 

Salovaara v. Jackson National Life Insurance Company, 246 F.3d

289, 298 (3d Cir. 2001). Forum selection clauses are

presumptively valid and thus entitled to great and controlling

weight in all but the most exceptional case. Wall Street, at *5;

Moneygram Payment Systems, Inc. v. Consorcio Oriental, S.A., No.

01-4386, 65 Fed. Appx. 844, 847-848, 2003 U.S. App. LEXIS 9875 at

*9 (3d Cir. May 21, 2003). Thus, the party opposing enforcement

of a forum selection clause has a “heavy burden of showing not

only that the balance of convenience is strongly in favor of a

different forum but also that resolution in the selected forum

will be so manifestly and gravely inconvenient to it that it will

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6

be effectively deprived of a meaningful day in court.” Monegram,

65 Fed. Appx. At 848, quoting M/S Bremen v. Zapata Off-Shore Co.,

407 U.S. 1, 19, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). 

 In applying the preceding principles to the matter at bar,

we note at the outset that this matter could well have been

brought in the Middle District of Alabama given that Skilstaf is

an Alabama corporation with its headquarters and principal place

of business in Alexander City, Alabama. See, 28 U.S.C. §1391(b),

(c). Consequently, an assessment of the various private and

public interest factors is in order.

In so first evaluating the private interest factors, we note

that the plaintiff quite naturally chose this Court as he is also

located in the City of Philadelphia. Not surprisingly, the

defendant wishes this matter moved to the Middle District of

Alabama, which is considerably closer to its corporate

headquarters and principal place of business in Alexander City,

Alabama. We further find that the claims at issue in this action 

arose in both fora, as Dr. Rogal rendered chiropractic and other

medical services to the Berrys in his office in Philadelphia but

the decision to deny his claims for payment of benefits was made

at Skilstaf’s offices in Alabama. Presumably, Skilstaf as a

corporation has a larger staff and greater financial resources

than does Plaintiff and would therefore suffer less physical and

financial inconvenience than would Dr. Rogal if forced to

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 According to the Plaintiff, however, at the time the Berrys received 2

treatments from him in 2004 and 2005, they were residing in Clarksboro, NJ. 

7

litigate this action in this District than would the plaintiff

were he forced to litigate his claims in the Middle District of

Alabama. As we cannot envision that Plaintiff would have many

other witnesses aside from himself and perhaps one or two members

of his office staff and the Berrys, who permanently reside in

Texas , we conclude that the factor concerning convenience of the 2

witnesses and location of the books and records weighs fairly

equally for both parties given that the defendant’s witnesses and

documentary evidence as to how the plan is administered and how

the decision to deny benefits was made are situated in Alabama. 

There is nothing to suggest that any of the witnesses would

actually be unavailable for trial in one of the fora. 

 As to the public interest factors, we believe that Dr. Rogal

would find it simpler and easier to enforce a judgment against

the defendant if it were issued by the U.S. District Court for

the Middle District of Alabama as that is where Skilstaf is

located, although it would hardly be an onerous burden to

transfer a judgment issued from this Court to that District if

necessary. While common sense dictates that this Court has an

interest in protecting the interests of citizens such as Dr.

Rogal who reside within this district, the same may be said of

the interest which the Middle District of Alabama has with regard

to Skilstaf. As this case is predicated upon a federal statute

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8

and not diversity, we believe that the U.S. District Court in the

Middle District of Alabama is equally familiar with and capable

of resolving this action under ERISA as is this one. 

Furthermore, as the Judicial Caseload Profile Statistics suggest,

the judges in this District had an average of 793 filings in 2005

in contrast to the 521 average filings experienced by judges in

Alabama’s Middle District. Nevertheless, it took the judges in

Alabama an average of three additional months to dispose of their

civil cases than it did the judges in the Eastern District of

Pennsylvania. As there do not appear to be any particular

practical considerations that could expedite or simplify trial or

public policies unique to either fora, we conclude that the

private and public interest factors equally favor both districts. 

 However, in evaluating the parties’ choices of forum, we

must consider the forum selection clause found in Section

14(B)(7) of the Skilstaf Group Health Plan. That clause reads as

follows:

If any party wishes to contest a final claim review or

appeal decision of the Plan Administrator involving total

benefits, claims, losses, and damages in an amount of

$10,000 or less, then all parties to such dispute agree and

consent that the matter shall be submitted to the small

claims court in Alexander City, Alabama, also known as the

Alexander City Division of the District Court for Tallapoosa

County, Alabama. The parties agree and consent to the

exclusive jurisdiction for any other claim, or any claim as

described above that cannot be heard in such court as

described above, involving an appeal or final claim review

upon the conclusion of the plan’s claim review procedure, in

the U.S. Federal District Court for the District

encompassing Alexander City, Alabama. 

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 Plaintiff asserts that because neither he nor Dennis or Dianne Berry 3

were parties to the writing, the forum selection clause should not be read to

confer exclusive jurisdiction on the U.S. District Court for the Middle

District of Alabama. While it is true that where parties enter into a

contract and merely consent to jurisdiction in a particular forum, they do not

preclude the jurisdiction of other forums, Plaintiff fails to acknowledge that

there is a recognized distinction between exclusive and permissive forum

selection clauses. See, e.g., Koresko v. Nationwide Insurance Co., 403

F.Supp. 2d 394, 401 (E.D.Pa. 2005); Polsky v. Hall City Centre Associates,

Ltd. Partnership, Civ. A. No. 88-9086, 1989 U.S. Dist. LEXIS 4942 (E.D.Pa. May

4, 1989). As we find no ambiguity in the clause at issue here, nor does

Plaintiff claim that any such ambiguity exists, we find that it does indeed

contemplate that jurisdiction would exclusively lie in the Middle District of

Alabama. 

We further find no necessity for the plaintiff or the Berrys to have

been signatories to the group health plan to give effect to the forum

selection clause contained therein. To be sure, the Skilstaf Group Health

Plan is an employee welfare benefit plan as defined by and within the meaning

of 29 U.S.C. §1002(1)–it is not a bilateral written contract which would

typically require execution by all parties as a pre-requisite to becoming

effective. As the Berrys have assigned their right to benefits under the plan

to the plaintiff, he effectively now stands in their shoes. See, Pascack

Valley Hospital, Inc. v. Local 464A UFCW Reimbursement Plan, 388 F.3d 393,

401, n.7 (3d Cir. 2004)(“Almost every circuit to have considered the question

has held that a health care provider can assert a claim under §502(a) where a

beneficiary or participant has assigned to the provider that individual’s

right to benefits under the plan.”). 

9

Thus, given the absence of any evidence on this record that the

above forum selection clause is the result of any fraud,

influence, or overweening bargaining power, we find that it is

valid and enforceable and that it provides compelling evidence

that the parties to this action intended to litigate matters such

as this one exclusively in the Middle District of Alabama. See,

Jumara, 55 F.3d at 880, quoting M/S Bremen v. Zapata, 407 U.S. at

12-13, 92 S.Ct. at 1914-1915. All other factors being equal 3

then, we therefore find that the defendants’ motions should be

granted and that this matter is properly transferred to the U.S.

District Court for the Middle District of Alabama.

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10

An order follows. 

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11

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

OWEN J. ROGAL, D.D.S., P.C. : CIVIL ACTION

d/b/a THE PAIN CENTER :

:

 vs. : NO. 05-6073

:

SKILSTAF, INC. :

 

OWEN J. ROGAL, D.D.S., P.C. : CIVIL ACTION

d/b/a THE PAIN CENTER :

:

 vs. : NO. 05-6074

:

SKILSTAF, INC. :

ORDER

AND NOW, this 26th day of June, 2006, upon

consideration of the Defendants’ Motions to Transfer Venue and

Plaintiff’s Responses thereto, it is hereby ORDERED that the

Motions are GRANTED for the reasons set forth in the preceding

Memorandum Opinion and these cases are TRANSFERRED to the United

States District Court for the Middle District of Alabama.

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J. 

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