[Cite as IntraSee v. Ludwig, 2012-Ohio-2684.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

INTRASEE, INC. 

 Appellant 

 v. 

STACI LUDWIG 

 Appellee 

C.A. Nos. 10CA009916 

11CA010024 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 10CV169714 

DECISION AND JOURNAL ENTRY

Dated: June 18, 2012 

 

WHITMORE, Presiding Judge. 

{¶1} Plaintiff-Appellant, IntraSee, Inc. (“IntraSee”), appeals from the judgment of the 

Lorain County Court of Common Pleas, dismissing its claim for lack for personal jurisdiction. 

We reverse. 

I 

{¶2} IntraSee is an Ohio corporation with its principal place of business in Westlake. 

It maintains one other office in the Chicago area. IntraSee’s employees live and work 

throughout the country. 

{¶3} Defendant-Appellee, Staci Ludwig, a Minnesota resident, entered into an 

employment contract with IntraSee in August 2006. The at-will employment contract contained 

a choice of law and a forum selection clause. These provisions required all disputes to be 

resolved under Ohio law in Lorain County, Ohio. Ludwig’s job duties required her to travel to 

customer locations throughout the country. Ludwig resigned from her position in July 2010. 
2 

 

{¶4} In October 2010, IntraSee filed a complaint against Ludwig in the Lorain County 

Court of Common Pleas. The complaint alleged, among other things, a breach of contract. After 

a hearing, the trial court dismissed the complaint for lack of personal jurisdiction over Ludwig. 

The court found the forum selection clause to be unenforceable. IntraSee filed an immediate 

appeal, and shortly thereafter filed a motion for relief from judgment in the trial court. 

{¶5} This Court remanded for the trial court to rule on IntraSee’s motion for relief from 

judgment. After a hearing, the trial court denied IntraSee’s motion. The trial court also denied, 

without a hearing, IntraSee’s request to supplement its motion for relief from judgment. IntraSee 

timely appealed and the appeals were consolidated. IntraSee raises three assignments of error for 

our review. To facilitate the analysis, we consolidate the second and third assignments of error. 

II 

Assignment of Error Number One

THE TRIAL COURT ERRED BY REFUSING TO ENFORCE THE 

PERSONAL JURISDICTION CLAUSE IN MS. LUDWIG’S EMPLOYMENT 

AGREEMENT AND DISMISSING INTRASEE’S CLAIM PURSUANT TO 

CIVIL RULE 12(B)(2) DUE TO LACK OF PERSONAL JURISDICTION 

OVER MS. LUDWIG. 

{¶6} In its first assignment of error, IntraSee argues that the trial court erred in 

dismissing its claim for lack of personal jurisdiction over Ludwig. Specifically, IntraSee argues 

that the court erred in refusing to enforce the forum selection clause in Ludwig’s employment 

agreement. We agree. 

{¶7} “This Court reviews a trial court’s decision to grant a motion to dismiss de novo.” 

El UK Holdings, Inc. v. Cinergy UK, Inc., 9th Dist. No. 22326, 2005-Ohio-1271, ¶ 11. The 

outcome of this appeal turns on the validity of the forum selection clause in Ludwig’s at-will 

employment contract. “If the terms of a contract are clear and unambiguous, then their 
3 

 

interpretation is a question of law. Questions of law are reviewed by an appellate court de 

novo.” (Internal citations and quotations omitted.) Renacci v. Evans, 9th Dist. No. 09CA0004-

M, 2009-Ohio-5154, ¶ 13. 

[Generally, t]he determination of whether a state court has personal jurisdiction 

over a nonresident is a two-step process. First, the court must look to the words 

of the state’s “long-arm statute” or applicable civil rule to determine whether, 

under the facts of the particular case, jurisdiction lies. If it does, the court must 

decide whether the assertion of jurisdiction deprives the nonresident defendant of 

due process of law.

Fallang v. Hickey, 40 Ohio St.3d 106, 107 (1988). A person may consent to personal 

jurisdiction, however, thereby waiving his or her due process rights. See Burger King Corp. v. 

Rudzewicz, 471 U.S. 462, 472 (1985), fn. 14; Kennecorp Mrge. Brokers, Inc., v. Country Club 

Convalescent, 66 Ohio St.3d 173, 175-176 (1993). One way litigants may consent to personal 

jurisdiction of a particular court system is through a valid forum selection clause. See id.; 

Preferred Capital Inc. v. Power Eng. Group, Inc., 112 Ohio St.3d 429, 2007-Ohio-257, ¶ 6. 

{¶8} In Ohio, it is well settled law that “absent evidence of fraud or overreaching, a 

forum selection clause contained in a commercial contract between business entities is valid and 

enforceable, unless it can be clearly shown that enforcement of the clause would be unreasonable 

and unjust.” Kennecorp Mrge. Brokers, Inc. at 176. The law regarding forum selection clauses 

in employment contracts is less settled. Ludwig argues that forum selection clauses in at-will 

employment contracts are not enforceable. In reviewing cases, however, we cannot conclude 

that forum selection clauses in employment contracts are never enforceable. See Carnival Cruise 

Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991) (concluding that a nonnegotiated forum-selection 

clause in a contract between parties of unequal bargaining power may still be enforceable). We 

are persuaded by the rationale in Buckeye Check Cashing of Arizona, Inc. v. Lang, S.D.Ohio No. 

2:06-CV-792, 2007 WL 641824 (Feb. 23, 2007), and adopt the test it sets forth. 
4 

 

A forum selection clause is [ ] valid, and will be enforced by the forum unless the 

party challenging the clause shows: (1) that the contract was the result of fraud or 

overreaching; (2) that the enforcement would violate strong public policy of the 

forum state; and (3) that enforcement under the particular circumstances of the 

case would result in litigation in a jurisdiction so unreasonable, difficult and 

inconvenient that the challenger would for all practical purposes be deprived of 

his day in court. 

Id. at *5, citing Barrett v. Picker Int’l, Inc., 68 Ohio App.3d 820, 824 (8th Dist.1990) (adopting 

the test stated in Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9-12 (1972), which the Court 

applied to a contract between two commercial parties). 

Fraud and Overreaching

{¶9} “To invalidate a forum-selection clause based on fraud, it must be established that 

the fraud relates directly to the negotiation or agreement as to the forum-selection clause itself, 

and not the contract in general.” Preferred Capital, Inc. v. Ferris Bros., Inc., 167 Ohio App.3d 

653, 2005-Ohio-6221, ¶ 6 (9th Dist.), rev’d on other grounds, 112 Ohio St.3d 503 (2007). See 

also Four Seasons Ents. v. Tommel Fin. Servs. Inc., 8th Dist. No. 77248, 2000 WL 1679456, *2 

(Nov. 9, 2000); Moses v. Business Card Express, Inc., 929 F.2d 1131, 1138 (6th Cir.1991).

{¶10} After a hearing, the trial court found that there was no evidence of fraud. Having 

reviewed the record, we agree. Ludwig never argued that the forum selection clause (or even the 

employment agreement in general) was the product of fraud. 

{¶11} Ludwig does argue, however, that the forum selection clause is unenforceable 

because of the unequal bargaining power of the parties. “Overreaching is defined as the act or an 

instance of taking unfair commercial advantage of another.” (Internal citations omitted.) 

Buckeye Check Cashing of Arizona, Inc., 2007 WL 641824, at *5. “The unequal bargaining 

power of the parties or lack of ability to negotiate over the clause cannot, in itself, support a 

finding of overreaching. See Carnival Cruise Lines, Inc., 499 U.S. at 593. However, 
5 

 

overreaching may be found if the disparity in bargaining power was used to take unfair 

advantage of the employee.” Buckeye Check Cashing of Arizona, Inc. at *5. 

{¶12} In Buckeye Check Cashing of Arizona, Inc., the employer was an Ohio 

corporation doing all of its business in the state of Arizona. Id. at *7. The nonnegotiable 

employment agreement drafted by the employer included a forum selection clause, which 

required all disputes to be resolved in Franklin County, Ohio. The employer failed to inform the 

defendant employees of this forum selection clause until after the defendants had already 

terminated their previous employment and had begun working for the plaintiff. Id. The court 

found the lack of business purpose in selecting Ohio as its forum and the delay in notifying the 

employees of the forum selection clause made the clause unenforceable because of overreaching. 

Id. 

{¶13} After a hearing, the trial court here found that there was no evidence of 

overreaching. Having reviewed the record, we agree. IntraSee is an Ohio close corporation 

whose operations are decentralized and whose principal place of business is in Westlake, Ohio. 

IntraSee has one other office in the Chicago area and maintains employees throughout the 

country. Unlike Buckeye Check Cashing of Arizona, Inc., IntraSee does not conduct business in 

only one state. The most central location of IntraSee’s business appears to be its Westlake, Ohio 

office from which it processes payroll. It cannot be said, therefore, that IntraSee took unfair 

advantage of Ludwig by choosing Ohio as its selected forum. 

{¶14} The forum selection clause is not unenforceable because of fraud or overreaching. 

Public Policy

{¶15} A court may refuse to enforce a forum selection clause if enforcement would 

violate strong public policy in Ohio. “Undeniably, the state of Ohio has an interest in providing 
6 

 

a local forum for its residents * * *.” Barrett, 68 Ohio App.3d at 824. IntraSee is an Ohio 

corporation with its principal office in Westlake, Ohio. Enforcing the forum selection clause in 

Ludwig’s employment agreement would not violate, but would instead promote, public policy in 

Ohio. 

Unreasonable and Unfair

{¶16} The crux of Ludwig’s argument is that it would be unreasonable and unfair to 

require her to come to Ohio to defend a lawsuit. In particular, Ludwig relies heavily on her 

argument that she has never had any contacts with the state of Ohio. Assuming this to be true, it, 

by itself, does not support the conclusion that it would be unreasonable to enforce the forum 

selection clause. To conclude otherwise would effectively hold that due process rights are not 

waivable. This is contrary to well established law. See Burger King Corp., 471 U.S. at 472, fn. 

14; Kennecorp Mrge. Brokers, Inc., 66 Ohio St.3d at 175-176. 

In determining whether the selected forum is sufficiently unreasonable[, difficult 

or inconvenient that the challenger would for all practical purposes be deprived of 

his day in court], Ohio courts consider the following factors: (1) which law 

controls the contractual dispute; (2) the residency of the parties; (3) where the 

contract was executed; (4) where the witnesses and parties to the litigation are 

located; and (5) whether the forum clause’s designated location is inconvenient to 

the parties. 

Buckeye Check Cashing of Arizona, Inc., 2007 WL 641824, at *7. 

{¶17} The first factor we consider is which law controls the dispute. According to 

section 9.2 of Ludwig’s employment contract, “Ohio’s laws shall govern all disputes, 

controversies, matters of interpretation, and litigation arising hereunder.” Because there is no 

evidence that the contract is invalid, we conclude that Ohio law controls this dispute. Assuming 

this provision is valid and enforceable, there has been no argument made that Minnesota would 

not apply Ohio law. Because IntraSee would be receiving the benefit of its choice of law even if 
7 

 

the forum selection clause was found to be unenforceable, this factor does not weigh heavily into 

our analysis. See Buckeye Check Cashing of Arizona, Inc. at *8. 

{¶18} The second and third factors we consider are the residency of the parties and the 

location in which the contract was executed. Ludwig resides in Minnesota and IntraSee’s 

principal office is in Westlake, Ohio. Residency has not changed for either party since the 

contract was executed in 2006. Ludwig signed her employment contract in Minnesota and faxed 

it to IntraSee in Ohio, where it was signed by the company. Because the residency of the parties 

and the location in which the contract was executed span two jurisdictions, these factors do not 

weigh heavily into our analysis. Compare Buckeye Check Cashing of Arizona, Inc. at *8 

(concluding that the Ohio forum selection clause was not enforceable, in part, because all parties 

were residents of Arizona). 

{¶19} The fourth factor we consider is where the witnesses and parties to the litigation 

are located. The parties are located in both Ohio and Minnesota. Beyond the parties, it is 

unclear what witnesses would need to be called to testify. IntraSee’s initial complaint contained 

three causes of action, all related to Ludwig’s alleged conduct with Cappella University, a 

Minnesota IntraSee customer. This factor, therefore, weighs slightly in favor of finding the 

forum selection clause unreasonable. 

{¶20} The fifth, and final, factor we consider is whether the forum clause’s designated 

location is inconvenient to the parties. “Under this step of the analysis, courts are to determine 

whether the chosen forum is so inconvenient as to, in effect, afford no remedy at all, thus 

depriving litigants of their day in court.” (Internal citations omitted.) Info. Leasing Corp. v. 

Jaskot, 151 Ohio App.3d 546, 2003-Ohio-566, ¶ 18 (1st Dist.). “Mere distance, mere expense, 
8 

 

or mere hardship to an individual litigant is insufficient to invalidate a forum selection clause.” 

Buckeye Check Cashing of Arizona, Inc. at *7.

{¶21} The trial court conducted a hearing to determine whether the court had personal 

jurisdiction over Ludwig. The trial court concluded that, while not directly on point, Preferred 

Capital, Inc. v. Power Eng. Group, Inc., 112 Ohio St.3d 429, 2007-Ohio-257, controlled the 

analysis of whether a forum selection clause was enforceable. We agree with the trial court that 

Preferred Capital, Inc. is not directly on point. Preferred Capital, Inc. dealt with two 

commercial parties and a floating forum selection clause, neither of which are at issue in this 

case. However, the Court’s analysis in Preferred Capital, Inc. does provide some guidance as to 

what is unreasonable. In finding floating forum clauses unreasonable the Court focused on the 

fact that such clauses do not provide a contracting party notice of where he or she may be forced 

to defend against a lawsuit. Id. at ¶ 12. (held that a floating forum selection clause is 

unreasonable “because even a careful reading of the clause by a signatory would not answer the 

question of where he may be forced to defend or assert his contractual rights”). Ludwig’s 

contract provided notice of where she may be forced to defend or assert her contractual rights. 

See Bremen, 407 U.S. at 17-18 (“Whatever ‘inconvenience’ [the defendant] would suffer by 

being forced to litigate in the contractual forum as it agreed to do was clearly foreseeable at the 

time of contracting.”). The first page of Ludwig’s contract identifies IntraSee as an Ohio 

corporation, and “offers to employ Employee as an ‘employee-at-will’ under Ohio law and 

Employee accepts such employment with Corporation.” IntraSee’s principal place of business is 

in Westlake, Ohio where it processes payroll. Moreover, Ludwig was a resident of Minnesota at 

the time she entered into the employment contract. It is reasonable to conclude that Ludwig was 

on notice that she could be hailed from Minnesota into an Ohio court to defend against a lawsuit. 
9 

 

{¶22} Ludwig consented to personal jurisdiction by signing the employment contract. It 

is not unreasonable or unjust for the court to enforce that contract. The trial court erred by 

dismissing IntraSee’s complaint for lack of jurisdiction. IntraSee’s first assignment of error is 

sustained.

Assignment of Error Number Two 

THE TRIAL COURT ERRED IN DENYING INTRASEE’S MOTION FOR 

RELIEF FROM JUDGMENT. 

Assignment of Error Number Three

THE TRIAL COURT ERRED IN DENYING THE SUPPLEMENT TO 

INTRASEE’S MOTION FOR RELIEF FROM JUDGMENT. 

{¶23} Given our resolution of IntraSee’s first assignment of error, its second and third 

assignments of error are moot, and we decline to address them. App.R. 12(A)(1)(c). 

III 

{¶24} IntraSee’s first assignment of error is sustained and its second and third 

assignments of error are moot. The judgment of the Lorain County Court of Common Pleas is 

reversed, and the cause is remanded for further proceedings consistent with the foregoing 

opinion. 

Judgment reversed, 

and cause remanded. 

 There were reasonable grounds for this appeal. 
10 

 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of 

this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellee. 

 

 BETH WHITMORE 

 FOR THE COURT 

CARR, J. 

CONCURS IN JUDGMENT ONLY.

BELFANCE, J. 

DISSENTING.

{¶25} I respectfully dissent, as I would conclude that the trial court correctly found that 

the forum-selection clause at issue was invalid and that IntraSee was not entitled to relief from 

judgment. 

{¶26} I am not persuaded that the test applied by the Southern District of Ohio in 

Buckeye Check Cashing of Arizona, Inc. v. Lang, S.D. Ohio No. 2:06-CV-792, 2007 WL 641824 

(Feb. 23, 2007) is the appropriate test to apply to the facts of this case. Lang utilizes a mixture of 

federal and Ohio law in its analysis. See id. at *4-*8. However, subsequent to Lang, even 
11 

 

federal courts have begun to acknowledge the differences between federal law and Ohio law in 

the area of forum-selection clauses and personal jurisdiction. See, e.g., Wong v. PartyGaming, 

Ltd., 589 F.3d 821, 826-827 (6th Cir.2009) (“[A] review of recent state cases reveals the possible 

emergence of differences in how state and federal law treat the enforcement of forum selection 

clauses. * * * Specifically, Ohio courts have held that forum selection clauses are less readily 

enforceable against consumers, which is a distinction that federal courts do not recognize.”). 

{¶27} Thus, I do not believe it is appropriate to rely on federal case law in deciding this 

matter. This is particularly so when the Ohio Supreme Court has outlined a test to determine the 

validity of a forum-selection clause. See Preferred Capital, Inc. v. Power Eng. Group, Inc., 112 

Ohio St.3d 429, 2007-Ohio-257, ¶ 7. While Preferred Capital dealt with a floating forumselection clause and with commercial parties, the test it articulated was clearly not designed to be 

limited to those situations. See id. The three-pronged test asks the following: “(1) Are both 

parties to the contract commercial entities? (2) Is there evidence of fraud or overreaching? (3) 

Would enforcement of the clause be unreasonable and unjust?” Id., citing Kennecorp Mtge. 

Brokers, Inc. v. Country Club Convalescent Hosp., Inc., 66 Ohio St.3d 173 (1993), syllabus. 

{¶28} Applying the test to the facts of the instant matter, I would conclude that the trial 

court did not err in its determination that the forum-selection clause was invalid. Numerous facts 

support this conclusion. Importantly, this case does not involve two commercial entities; instead, 

it involves an employer and employee relationship, which involves inherently unequal 

bargaining power. Moreover, from the limited record, it appears that the majority of the 

evidence and witnesses in this matter would be located in Minnesota; for instance, both Ms. 

Ludwig and the other company that IntraSee asserts is implicated in this litigation are located in 

Minnesota. In addition, none of the allegations in the complaint concern actions in Ohio or 
12 

 

assert that Ms. Ludwig was ever in Ohio. There was no evidence before the trial court, prior to 

its initial ruling, that Ms. Ludwig worked in Ohio. Instead, the evidence supported the 

conclusion that Ms. Ludwig lived and worked in Minnesota and even signed the contract at issue 

there. Moreover, unlike the clause in Preferred Capital, the clause in the instant matter was in 

the same sized font as the rest of the document and was buried in the midst of the document. See 

Preferred Capital at ¶ 9. Absent a careful reading, it would be easy to miss the clause entirely. 

Thus, utilizing the test outlined in Preferred Capital, I would conclude that the trial court did not 

err in its determination that the forum-selection clause was invalid. Further, because the forumselection clause was the sole basis upon which IntraSee asserted the trial court had personal 

jurisdiction, I likewise conclude the trial court properly found that it lacked personal jurisdiction 

over the matter. 

{¶29} Finally, I would conclude that IntraSee’s argument that the trial court erred in 

denying its motion for relief from judgment is without merit. IntraSee sought relief pursuant to 

Civ.R. 60(B)(2), which states that, “[o]n motion and upon such terms as are just, the court may 

relieve a party or his legal representative from a final judgment, order or proceeding for the 

following reasons: * * * (2) newly discovered evidence which by due diligence could not have 

been discovered in time to move for a new trial under Rule 59(B)[.]” Assuming without 

deciding that Civ.R. 60(B)(2) is applicable following a motion to dismiss, IntraSee failed to 

demonstrate that the information it discovered could not have been discovered prior to the trial 

court’s ruling if it had exercised due diligence. At the hearing on IntraSee’s Civ.R. 60(B) 

motion, Paul Insherwood from IntraSee testified that he came upon the allegedly newly 

discovered evidence by chance. The logical conclusion to be made from Mr. Isherwood’s 

testimony is that IntraSee did not exercise due diligence. There is nothing to suggest, that if 
13 

 

IntraSee had exercised due diligence, it would not have been able to discover the evidence prior 

to the trial court’s ruling. Accordingly, I would conclude the trial court did not err in denying 

IntraSee’s Civ.R. 60(B) motion. 

APPEARANCES:

RICHARD C. HABER and DANIEL M. CONNELL, Attorneys at Law, for Appellant. 

MICHAEL P. HARVEY, Attorney at Law, for Appellee.