IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TSI USA, LLC, §

§

Plaintiff, §

§

V. § No. 3:16-cv-2177-L

§

UBER TECHNOLOGIES, INC., §

§

Defendant. §

MEMORANDUM OPINION AND ORDER OF TRANSFER

Defendant Uber Technologies, Inc. (“Defendant” or “Uber”) has filed a Motion

to Transfer Case out of District/Division pursuant to 28 U.S.C. § 1404. See Dkt. No. 10

(the “Motion to Transfer Venue”). United States District Judge Sam A. Lindsay has

referred the motion to the undersigned United States Magistrate Judge for hearing,

if necessary, and determination pursuant to 28 U.S.C. § 636(b). See Dkt. No. 13.

Plaintiff TSI USA, LLC (“Plaintiff” or “TSI”) filed a response, see Dkt. No. 16,

and Uber has filed a reply, see Dkt. No. 18. 

The Court GRANTS Uber’s Motion to Transfer Venue [Dkt. No. 10] for the

reasons explained below.

Background

TSI is a Delaware limited liability company whose principal place of business

is Dallas, Texas. It “contracts with businesses and individuals to manage, schedule,

book and optimize their airline, hotel, and related travel needs.” Dkt. No. 7 at 3. 

Case 3:17-cv-00169-JCS Document 19 Filed 01/11/17 Page 1 of 26
Uber is a software technology company organized under Delaware law. Its

principal place of business is San Francisco, California, where about 3,300 of its 5,800

U.S. employees work. It “connects riders to automobile drivers in approximately 150

cities in 50 countries.” Id.

In 2014, Uber circulated a Request for Proposals (the “RFP”) seeking proposals

from travel agencies for corporate travel services to be provided to its employees. Uber

alleges that TSI responded to the RFP with certain misrepresentations about the size

and scale of TSI’s operation.

Uber ultimately agreed to pay TSI to create an international travel services

program that Uber’s employees could utilize to make travel arrangements. The parties

executed two contracts on November 24, 2014 to commemorate this arrangement – (i)

a Services Agreement (the “Services Agreement”) and (ii) a Statement of Work for Uber

Global Travel Management Services (the “Statement of Work” or “SOW”; collectively

with the Services Agreement, the “Contract”).

TSI then filed this lawsuit. TSI alleges that, after Uber “induced TSI to spend

capital and deploy personnel to create and implement an international travel services

program,” it “constantly added and changed specifications,” prematurely terminated

the parties’ agreements, and “refuse[d] to pay TSI” the money that Uber owes. Id. at

1. TSI also alleges that “Uber directed its new travel services vendor to hire away at

least one of TSI’s employees ... in breach of that employee’s contract with TSI” and that

Uber’s management “began to make false, defamatory and damaging comments to at

least one TSI client.” Id. at 2. 

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“Uber anticipates filing a counterclaim.” Dkt. No. 11 at 3. Uber alleges that TSI

is a small limited liability company and argues that TSI therefore “committed fraud

in the inducement by representing itself [to Uber] as a Delaware corporation with

global operations and 3,000 employees in 33 countries and $3 billion in revenue, and

by representing it could provide services it lacked the personnel or capacity to provide.”

Id. at 4. Uber also argues that “TSI committed numerous material breaches of the

[parties’ agreements], including failing to provide required services and failing to

launch the travel program in the required timeframe.” Id.

Uber has since filed the pending Motion to Transfer Venue. Uber contends that

this case should be transferred to the Northern District of California’s San Francisco

Division pursuant to Section 12.1 of the Services Agreement (the “Forum-Selection

Clause”). The Forum-Selection Clause provides that:

This Agreement shall be governed by and construed in accordance with

the laws of the State of California without regard to its choice or conflict

of laws provisions. Consultant hereby consents to exclusive jurisdiction

and venue in the state and federal courts sitting in San Francisco County,

California. 

Uber argues that there are “no extraordinary circumstances” to permit this Court to

disregard the clause. Id. at 2.

TSI disagrees. It argues that the Forum-Selection Clause is no longer in effect

in light of Section 11.2 of the Agreement (the “Survival Clause”). The Survival Clause

provides, in pertinent part, that “[o]utstanding payment obligations and Sections 1, 3-

9, 10.3, and 11 of this Agreement shall survive any termination of this Agreement.” See

Dkt. No. 16 at 2. TSI asserts that the Forum-Selection Clause – that is, Section 12.11

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of the Services Agreement – does not apply to this dispute because it was not among

the provisions enumerated in the Survival Clause. It also argues that the ForumSelection Clause is too ambiguous to be unenforceable and would not apply to its

Tortious Interference and Defamation claims even if enforceable.

Legal Standards and Analysis

I. The Forum-Selection Clause does not survive termination of the Contract.

The Court finds that the Forum-Selection Clause only applies to dispute

litigated during the life of the Contract for the reasons explained below. Because the

Forum-Selection Clause consequently does not apply to this dispute, the Court’s

analysis does not address TSI’s arguments concerning either the ambiguity of the

Forum-Selection Clause or its applicability to TSI’s specific claims.

A. Texas’ choice-of-law rules determine the body of law that governs the

interpretation of the Survival Clause and the Forum-Selection Clause.

Courts in the Fifth Circuit apply the forum state’s choice-of-law rules to

interpret the scope of a forum-selection clause and federal law to determine the

enforceability of a forum-selection clause. See Barnett v. DynCorp International, L.L.C.,

831 F.3d 296, 301-02 (5th Cir. 2016). But, as the Fifth Circuit has recently remarked,

it is less clear what body of law governs when determining the validity of a forumselection clause. See id. 

In Barnett v. DynCorp International, L.L.C., the Fifth Circuit observed that “the

‘validity’ of a forum-selection clause is [arguably] a matter of substantive contract law,”

in which case, courts apply the body of law dictated by a state law’s choice-of-law rules.

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Id. But the Court of Appeals also noted that “validity is [arguably] just part of the

federal law of enforceability, which heavily favors forum-selection clauses.” Id. at 302.

The Court will apply the body of law dictated by Texas’ choice-of-law rules to

this dispute. TSI does not appear to challenge the validity of the Forum-Selection

Clause. It, instead, argues that the parties agreed that the Forum-Selection Clause

only applied during the life of the Contract, not after termination. And that is a

question of scope, not validity.

The Court acknowledges that TSI’s argument could be framed as a challenge to

the Forum-Selection Clause’s continued validity but is still inclined to apply Texas’

choice-of-law rules even if the issue is so framed – without weighing in on the dispute

discussed in Barnett as to what body of law typically applies when a forum-selection

clause’s validity is wholly in question. In Barnett, the plaintiff argued that the forumselection clause was “void under Texas law” since “it directs litigation to a forum in

which the limitations period of breach of an employment contract is less than two

years” in violation of Texas Civil Practice & Remedies Code § 16.070. Id. at 300. In

other words, the plaintiff challenged the forum-selection clause’s validity by arguing

that it was void by its terms under Texas law.

This case is different. TSI’s argument turns on the interpretation of the Survival

Clause. If the Survival Clause lists every provision of the Contract that shall survive

termination, as TSI contends, then the Forum-Selection Clause is only applicable

during the life of the Contract. If the Survival Clause is only meant to apply to those

provisions that would otherwise not survive the Contract and therefore does not apply

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to the Forum-Selection Clause, as Uber contends, then the Forum-Selection Clause

does survive termination of the Contract.

The Survival Clause’s interpretation is a matter of substantive contract law that

is governed by a state’s choice-of-law rules. See Weber v. PACT XPP Techs., AG, 811

F.3d 758, 770 (5th Cir. 2016) (citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S.

487, 496-97 (1941)). The fact that the interpretation implicates the Forum-Selection

Clause’s scope and continued validity does not change that.

B. Under Texas’ choice-of-law rules, California law applies regardless of

whether the California choice-of-law provision applies to this dispute.

It is not immediately apparent what body of law should govern this dispute

under Texas’ choice-of-law rules. The Forum-Selection Clause contains a choice-of-law

provision that could dictate the body of law that should be used to interpret the

Survival Clause. But the interpretation of the Survival Clause could dictate that the

Forum-Selection Clause is no longer effective.

The Fifth Circuit has observed that other circuits “have [generally] applied

foreign law to determine the meaning of a [forum-selection clause].” Weber, 811 F.3d

at 770. But the Court of Appeals declined to make this a hard and fast rule. Id. at 770-

71. The Fifth Circuit explained that “this premise can only apply when the contract

contains a valid and explicit choice of law provision selecting the law of a foreign

forum.” Id. at 770 n.19. And, as noted above, it is not clear whether or not a valid

choice-of-law provision remains in effect.

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The Fifth Circuit recently suggested that courts applying Texas law can

constructively split the difference between blindly adhering to a choice-of-law provision

(although it may not otherwise be in effect) and wholly ignoring it (although it may

otherwise control the dispute). In Barnett, the Fifth Circuit was asked to evaluate the

validity of a choice-of-law provision that the plaintiff alleged was invalid because it

violated Texas Civil Practice & Remedies Code § 16.070. See 831 F.3d at 302. The

Court of Appeals largely grounded its analysis in Texas’ adopting the Restatement

(Second) of Conflict of Laws § 187. Id. at 304. Section 187 provides that, “if the

particular issue is one which the parties could not have resolved by an explicit

provision in their agreement directed to that issue,” the Court would elect to defer to

the body of law identified in an otherwise inapplicable choice-of-law provision unless:

(a) the chosen state has no substantial relationship to the parties or the

transaction and there is no other reasonable basis for the parties’ choice,

or

(b) application of the law of the chosen state would be contrary to a

fundamental policy of a state which has a materially greater interest

than the chosen state in the determination of the particular issue and

which, under the rule of § 188, would be the state of the applicable law in

the absence of an effective choice of law by the parties.

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187(2).

The Fifth Circuit then “assume[d], in Barnett’s favor, that [it was] dealing with

an issue the parties ‘could [not] have resolved by an explicit provision in their

agreement directed to that issue’” and applied the analysis directed by Section 187.

Barnett, 831 F.3d at 305 (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS §

187(2)).

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The Court makes the same assumption here and concludes, pursuant to Section

187, that California law shall apply to this dispute. California plainly has a substantial

relationship to the parties and the transaction. The RFP process transpired in Uber’s

headquarters in San Francisco, California, such that the Contract was negotiated and

entered into in California. But see Dkt. No. 17 at 7 (suggesting that there was not much

“negotiation” since “[t]he Services Agreement that contains the forum selection clause

... was [technically] drafted in its entirety by Uber or its counsel”). The Agreement’s

primary purpose was for TSI to create a travel services program that Uber employees

could utilize, and more Uber employees work in California than in any other state. And

Uber’s principal place of business is located in California. This is sufficient where

neither party contends that applying California law to the dispute would be “contrary

to a fundamental policy of a state with a materially greater interest,” as determined

by Restatement (Second) of Conflict of Laws § 188. RESTATEMENT (SECOND) OF

CONFLICT OF LAWS § 187(2).

Even if a party made this argument, there does not appear to be any other state

that has a materially greater interest in the dispute. Pursuant to Section 188, courts

consider several factors according to their relative importance to determine the forum

with the most significant connection to the dispute. These include: “(a) the place of

contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d)

the location of the subject matter of the contract, and (e) the domicil, residence,

nationality, place of incorporation, and place of business of the parties.” Weber, 811

F.3d at 772 (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188 (1971)). “[I]n

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contracts for rendition of services, the court should look to the law of the place where

the contract specifies that the services should be rendered. When a contract for services

gives a place for performance, ‘[a]s a rule, that factor alone is conclusive in determining

what state’s law is to apply.’” Weber, 811 F.3d at 772 (quoting DeSantis v. Wackenhut

Corp., 793 S.W.2d 670, 679 (Tex. 1990)).

As explained, the place of contracting, the place where the contract was

negotiated, and the location of the subject matter all favor applying California law.

These connections are sufficient since the Services Agreement does not specify that the

services should be performed in any particular locale. This suggests that the place of

performance was not especially important to the parties’ Contract – as might be

expected in a contract for services that are performed remotely. See Section 2.3 of the

Services Agreement, Dkt. No. 7, Ex. 1 at 5 (the “Performance Clause”) (providing that

“[t]he manner and means by which Consultant chooses to complete the Services are in

the Consultant’s sole discretion and control”). And the remaining considerations – the

domicil, residence, nationality, place of incorporation, and place of business of the

parties – do not appear to notably influence this analysis. The parties are both

incorporated in Delaware, and their principal places of business differ – TSI’s principal

place of business is in Dallas, Texas, and Uber’s is in San Francisco, California.

The Court will apply California lawininterpreting theForum-Selection Clause’s

scope and continued validity.

C. The Forum-Selection Clause does not survive under California law.

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Under California law, “[a] contract must be so interpreted as to give effect to the

mutual intention of the parties as it existed at the time of contracting, so far as the

same is ascertainable and lawful.” CAL. CIV. CODE § 1636. Courts determine the

parties’ intent in a written contract based on how it was objectively expressed in words

therein, see id. § 1639, considering every part of the contract, see id. § 1641. 

Courts also consider the terms in a contract in light of “the circumstances under

which [the contract] was made, and the matter to which it relates.” Id. § 1647. “The

terms of a writing are presumed to have been used in their primary and general

acceptance, but evidence is nevertheless admissible that they have a local, technical,

or otherwise peculiar signification, and were so used and understood in the particular

instance.” Id. § 1861. All applicable laws and ordinances in existence when the

agreement is made become a part of the contract. See B.E. WITKINS, WITKIN SUMMARY

OF CALIFORNIA LAW, Tenth Edition § 752 (2005). Where the language of a contract is

clear and not absurd, it will be followed. See CAL. CIV. CODE § 1638. In cases of

uncertainty, the language of a contract should be interpreted “most strongly against

the party who caused the uncertainty to exist.” Id. § 1654.

The parties’ dispute centers on how to interpret the Survival Clause. The

Survival Clause provides that certain provisions “shall survive any termination of the

Agreement” and does not include the Forum-Selection Clause among them.

TSI argues that the Survival Clause’s failure to include the Forum-Selection

Clause means that the Forum-Selection Clause did not survive termination of the

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agreement. Uber argues that the only reason that the Survival Clause does not

expressly provide for the Forum-Selection Clause’s survival is that it would have been

redundant to do so. It contends that “[t]erms such as a forum selection clause that

relate to remedies and dispute resolution survive termination of a contract regardless.

The fact that a contract sets forth in a survival clause additional terms that survive

termination does not change that fact.” Dkt. No. 18 at 6 (emphasis in original).

The Court finds TSI’s interpretation to be more persuasive. A plain reading of

the terms of the Contract suggests that the Forum-Selection Clause does not survive

the Contract’s termination. A survival clause’s purpose is to enumerate any clauses

that will remain in effect after the agreement’s termination. The omission of the

Forum-Selection Clause from the Survival Clause therefore suggests that the parties

did not intend for the Forum-Selection Clause to survive termination of the agreement.

As the maxim “expressio unius est exclusio alterius” provides, the “mention of one

matter implies the exclusion of all others.” Steven v. Fidelity & Cas. Co. of New York,

58 Cal.2d 862, 870 (Cal. 1962).

This is especially apparent since the terms of the Forum-Selection Clause do not

indicatewhether it will survive termination. The Forum-Selection Clause only provides

that:

This Agreement shall be governed by and construed in accordance with

the laws of the State of California without regard to its choice or conflict

of laws provisions. [TSI] hereby consents to the exclusive jurisdiction and

venue in the state and federal courts sitting in San Francisco County,

California.

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This provision could be read to mean that it should apply to disputes relating to the

interpretation of the Contract, whether the agreement survives termination or not. It

could alternatively be read to apply to such disputes so long as they are litigated

throughout the course of the Contract. The Survival Clause’s omission of the ForumSelection Clause helps clarify that the Forum-Selection Clause is only meant to apply

during the life of the Contract. See In re Spirtos, BAP No. CC-10-1118-PaDKi, 2011 WL

3298952, at *7 (B.A.P., 9th Cir. Feb. 2, 2011) (citing Cal. Civ. Code § 1641; Harris v.

Klure, 23 Cal.Rptr. 313, 315 (Cal. Ct. App. 1962)) (observing that, under California

law, “[t]he whole of a contract is to be taken together, so as to give effect to every part,

if reasonably practicable, each clause helping to interpret the other”); see also Junction

Solutions, LLC v. MBS DEV, Inc., No. 06 C 1632, 2007 WL 114306, at *4-*5 (N.D. Ill.

Jan. 9, 2007) (finding that the forum-selection clause did not survive termination in

light of a survival clause because a finding otherwise “would render superfluous the

Settlement Agreement’s specific provision for the survival of the Employment

Agreement’s confidentiality obligations.”). Moreover, “[t]he language of a contract

should be interpreted most strongly against the party who caused the uncertainty to

exist,” CAL. CIV. CODE § 1654, and Uber drafted the Contract.

Uber argues that “TSI’s ‘expressio unius’ argument lack merits,” Dkt. No. 18 at

6 n.3, because the Survival Clause was only meant to set forth the “additional terms

that survive termination” and “a forum selection clause remains operative regardless

of whether a contract has terminated,” id. at 6 (emphasis in original).

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Uber’s interpretation is not supported by general contract principles. Courts

consider evidence of the circumstances under which an agreement was formed if

relevant to provide a meaning of which the contractual language is at least “reasonably

susceptible.” WITKINS,WITKINSUMMARYOFCALIFORNIALAW, Tenth Edition § 748. The

circumstances under which the Contract was formed do not appear to support Uber’s

interpretation – even assuming that the Survival Clause is reasonably susceptible to

it. The parties are presumed to enter into agreements against the backdrop of any

applicable law. See id. at § 752 (explaining that all applicable laws in existence when

the agreement is made become part of the contract). 

Uber’s argument that it would be redundant to include the Forum-Selection

Clause in the Survival Clause thus turns on one question: Would a reasonable party

contract against the risk that the Forum-Selection Clause does not survive under

California law when it is not enumerated in the Survival Clause? The Court believes

so. Uber purports that “[c]ourts have uniformly held that a forum-selection clause

presumptively survives termination of the contract.” Dkt. No. 18 at 3. This is not

precisely correct. See, e.g., Lockwood Corp. v. Black, 501 F. Supp. 261, 265 (N.D. Tex.

1980) (finding that the forum-selection clause terminated on the date the written

contract was cancelled); Junction Solutions, 2007 WL 114306, at *4-*5 (finding that the

forum-selection clause did not survive termination because it was omitted from a

survival clause). Regardless, most of these cases do not hold that a forum-selection

clause survives when, as here, a survival clause indicates otherwise. And they largely

do not apply California law. 

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In contrast, California has long applied the contractual principles supporting

TSI’s interpretation, which should have given Uber notice that a forum-selection clause

might not survive under these circumstances. These include the maxims that: (i) a

contract should be interpreted by the plain meaning of the terms, see CAL. CIV. CODE

§ 1639, considering every part of the contract, id. § 1641; (ii) the inclusion of one

provision suggests the purposeful exclusion of another, see Steven, 58 Cal.2d at 871;

and (iii) an unclear contract is interpreted “most strongly against the party who caused

the uncertainty to exist,” see CAL. CIV. CODE § 1654; Steven, 58 Cal.2d at 871.

Uber cites to a few cases (not applying California law) that have found a forumselection clause to survive termination even when it is not mentioned in a survival

clause. See, e.g., AAMCO Transmissions, Inc. v. Romano, 42 F. Supp. 3d 700 (E.D. Pa.

2014); TriState HVAC Equipment, LLP v. Big Belly Solar, Inc., 752 F. Supp. 2d 517

(E.D. Pa. 2014). But, at most, these cases suggest that a court applying California law

might have reached the same conclusion. A reasonable party in Uber’s position would

contract against this uncertainty – especially considering that Uber drafted the

Contract. As the California Supreme Court has explained, “‘[p]arties enter into

contracts to allocate risks and to bring certainty, order, and predictability to their

mutual relations.’” Sanchez v. Valencia Holding Co., LLC, 61 Cal.4th 899, 936-37 (Cal.

2005) (quoting Nedlloyd Lines B.V. v. Superior Court, 3 Cal. 4th 459, 494 (Cal. 1992)).

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The cases that Uber cites are inapposite in any event. Uber primarily relies on

AAMCO Transmissions, Inc. v. Romano, 42 F. Supp. 3d 700 (E.D. Pa. 2014), to support

its position. But the AAMCO court explained that

[c]ourts finding that forum selection clauses remained in effect have

relied primarily on the broad language of the forum selection clauses and

the absence of any explicit language indicating the termination of the

clause. 

Id. at 707; see also Advent Electronics, Inc. v. Samsung Semiconductor, Inc., 709 F.

Supp. 843, 846 (N.D. Ill. 1989) (observing that the presumption that a broadly written

forum-selection clause survives termination could be overcome by contractuallanguage

either “explicitly or implicitly indicating” otherwise). When a forum-selection clause

purports to apply to “any proceedings which arise out of or are connected in any way

with this Agreement or its performance,” AAMCO, 42 F. Supp. 3d at 705, it might be

appropriate to find that the forum-selection clause was intended to apply to posttermination disputes even it is not mentioned in a survival clause. But see Junction

Solutions, 2007 WL 115306, at *5 (finding that a forum-selection clause purportedly

applicable to “any claim or cause of action arising under this Agreement” did not

survive termination because it was not included in a survival clause). In these cases,

courts are forced to interpret a contract in which two terms at least facially appear to

contradict one another.

But when two terms can be reconciled, courts are generally directed “to give

effect to every part” of the contract so that “each clause help[s] to interpret the other.”

In re Spirtos, 2011 WL 3298952, at *7 (citing Cal. Civ. Code § 1641; Harris, 23

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Cal.Rptr. at 315). The Forum-Selection Clause and Survival Clause can be reconciled

here. The terms, indeed, appear to complement one another. The Survival Clause’s

omission of the Forum-Selection Clause helps explain why it does not purport to apply

to disputes during the life of the Contract or even any and all disputes between the

parties.

Uber appears to argue that TSI’s interpretation of the agreement would render

the Forum-Selection Clause largely meaningless because “[m]ost breach of contract

lawsuits are filed after – indeed because – a contractual relationship has ended.” Dkt.

No. 18 at 4 (emphasis in original). Uber may be right about the timing of most such

lawsuits. But, if the parties only agreed to have the Forum-Selection Clause apply to

disputes that are litigated during the life of the Contract, it is not the Court’s place to

second-guess their intent to do so. The Court notes that California courts only started

enforcing forum-selection clauses – after previously viewing them with disfavor –

largely out of deference to the parties’ freedom to contract. See Alexander v. Superior

Court, 114 Cal.App.4th 723, 729-30 (Cal. Ct. App. 2003) (“[I]n concluding that forum

selection clauses were permissible in California, [the California Supreme Court] stated:

‘While it is true that the parties may not deprive courts of their jurisdiction over causes

by private agreement, ... it is readily apparent that courts possess discretion to decline

to exercise jurisdiction in recognition of the parties’ free and voluntary choice of a

different forum.’”) (quoting Smith, Valentino & Smith, Inc. v. Superior Court, 17 Cal.3d

491, 495 (Cal. 1976)). “The nonpaternalistic corollary to this freedom is that courts

assume that each party to a contract is alert to, and able to protect, his or her own best

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interests.” Series AGI West Linn of Appian Group Investors DE LLC v. Eves, 217 Cal.

App. 4th 156, 164 (Cal. Ct. App. 2014). “‘The courts cannot make better agreements for

parties than they themselves have been satisfied to enter into or rewrite contracts

because ... they would be improvident or unwise.’” Id. (quoting Walnut Creek Pipe

Distributors, Inc. v. Gates Rubber Co., 228 Cal.App.2d 810, 815 (Cal. Ct. App. 1964)).

Uber contends that TSI’s interpretation leads to absurd results. It argues that,

“[u]nder TSI’s reasoning, forum selection clauses would thus nearly always cease to

remain in effect.” Dkt. No. 18 at 4. The Court disagrees. TSI only asserts that, “by

leaving the forum selection clause off the list of surviving provisions in the Survival

Clause, the parties excluded it from post-termination application.” Dkt. No. 16 at 5. It

does not argue that, in the absence of any indication to the contrary, a forum-selection

clause should not generally survive post-termination.

Uber also argues that, under TSI’s reasoning,

critical provisions in the Contract under which it has filed suit simply

disappear because it waited to file suit until after the Contract was

terminated.... [B]eyond the forum selection clause, none of the terms in

Section 12 of the Contract would apply because none are listed in the

survival clause, including: the choice of law clause (§ 12.1), the no-oral

modification clause (§ 12.2), the prohibition against assignments (§ 12.4),

the severability clause (§ 12.7), and the provision affirming that the

parties jointly drafted the Contract (§ 12.9). Indeed, even the provisions

governing “Services” and ”Personnel” TSI claims to have provided would

cease to have any effect since the section describing them (§ 2) is not

among those in the survival clause. Under TSI’s reasoning, these

provisions apply if a lawsuit is brought before the Contract was

terminated, but they do not apply in any lawsuit brought after

termination; thus a party could game the process and change key

contractual terms simply by terminating the Contract before filing suit.

Id. at 6.

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Uber’s argument assumes that each of the “critical provisions” that it identifies

must survive termination of the contract if they are to be invoked in a lawsuit filed

after termination. They do not. Although TSI has brought this lawsuit after

termination of the Contract, its claims are plainly based on obligations that Uber

allegedly owed to it before the Contract was terminated. The Court can consider all

terms that were in effect at the time of any alleged breach to the extent that they

inform the parties’ obligations to one another with respect to that alleged breach.

Accordingly, a “no-oral modification” provision does not need to be in effect for

the Court to recognize that it was in effect at some point in time. The same is true of

a remedies provision. If Uber breached the Contract at a time when a remedies

provision was still in effect, it would be fair for either party to invoke that provision

even after the Contract’s termination.

Forum-selection clauses are different. A forum-selection clause does not in any

way illustrate whether a party has performed any of the other provisions of the

contract at a time when the contract was in effect. It merely “establish[es] the place

(such as the country, state, or type of court)” for any specified disputes to be heard.

Quality Custom Rail & Metal, LLC v. Travelers Cas. and Sur. Co. Of America, No. 3:13-

cv-3587-D, 2014 WL 840046, at *4 n.6 (N.D. Tex. March 4, 2014) (quoting BBC

Chartering & Logistic GmbH & Co. K.G. v. Siemens Wind Power A/S, 546 F. Supp. 2d

437, 442 (S.D. Tex. 2008) (quoting BLACK’S LAW DICTIONARY 681 (8th ed.2004))). For

a party to invoke a forum-selection clause in a dispute post-termination, the parties

must have intended for it to apply to those disputes. See Advent, 709 F.Supp. at 846

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(noting that “[t]he intent of the parties as to the continued applicability of a forum

selection clause controls”).“In the absence of contractual language expressly or

implicitly indicating the contrary, a forum selection clause [likely] survives termination

of the contract.” Id. (concluding that the forum-selection clause survives, without

mention of any survival clause, because the parties used broad language in the forumselection clause indicating an intent that all disputes arising from the Distribution

Agreement would be resolved in the chosen forum, regardless of the timing of the

breach). But, where the agreement suggests that the forum-selection clause does not

survive – by, for instance, not including it in a clause identifying the terms that will

survive the agreement – the provision has no effect after the contract’s termination.

See Junction Solutions, 2007 WL 114306, at *4-*5 (finding that the forum-selection

clause does not survive because it was not enumerated in a survival clause). 

For these reasons, the Court concludes that the Forum-Selection Clause was

only in effect during the life of the agreement and is not applicable to this dispute.

II. The action should still be transferred to the Northern District of California for

forum non conveniens.

But the Motion to Transfer Venue’s fate ultimately does not turn on whether the

Forum-Selection Clause applies to disputes after the termination of the Contract. In

the absence of a valid and enforceable forum-selection clause, the Court may still

transfer an action for forum non conveniens pursuant to a traditional 28 U.S.C. §

1404(a) analysis. See Atlantic Marine Const. Co., Inc. v. United States District Court,

134 S. Ct. 568, 580 (2013) (“Section 1404(a) is merely a codification of the doctrine of

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forum non conveniens for the subset of cases in which the transferee forum is within

the federal court system; in such cases, Congress has replaced the traditional remedy

of outright dismissal with transfer.”). The Court elects to do so here.

28 U.S.C. § 1404(a) provides that, “[f]or the convenience of 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.” A plaintiff’s original

choice of forum is ordinarily entitled to some deference. See In re Volkswagen of

America, Inc., 545 F.3d 304, 315 (5th Cir. 2008) (“Volkswagen II”). This means that the

moving party must “demonstrate[] that the transferee venue is clearly more

convenient.” Id. But, while a plaintiff’s choice of forum “should be respected” unless

“the transferee venue is clearly more convenient,” Plaintiff’s “choice of forum ... is not

an independent factor within ... the § 1404(a) analysis.” Id. at 314 n.10, 315 (internal

quotation marks omitted). Rather, “a plaintiff’s choice of venue is to be treated as a

burden of proof question.” Id. at 314 n.10 (internal quotation marks omitted).

In applying Section 1404(a), the Fifth Circuit directs that courts must first

determine “whether the judicial district to which transfer is sought would have been

a district in which the claim could have been filed.” In re Volkswagen AG, 371 F.3d 201,

203 (5th Cir. 2004) (“Volkswagen I”). Once this determination is made,

[the Court] turn[s] to the language of § 1404(a), which speaks to the issue

of “the convenience of the parties and witnesses” and to the issue of “in

the interest of justice.” The determination of “convenience” turns on a

number of private and public factors, none of which [is] given dispositive

weight. The private concerns include: (1) the relative ease of access to

sources of proof; (2) the availability of compulsory process to secure the

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attendance of witnesses; (3) the cost of attendance for willing witnesses;

and (4) all other practical problems that make trial of a case easy,

expeditious and inexpensive. The public concerns include: (1) the

administrative difficulties flowing from court congestion; (2) the local

interest in having localized interests decided at home; (3) the familiarity

of the forum with the law that will govern the case; and (4) the avoidance

of unnecessary problems of conflict of laws of the application of foreign

law.

Id. (citations omitted).

Transfer of venue under Section 1404(a) is at the Court’s discretion, considering

“‘[a]ll relevant factors to determine whether or not on balance the litigation would more

conveniently proceed and the interests of justice be better served by transfer to a

different forum.’” El Chico Restaurants of Texas, Inc. v. Carroll, No. 3:09-cv-2294-L,

2010 WL 2652286, at *2 (N.D. Tex. June 29, 2010) (quoting Peteet v. Dow Chem. Co.,

868 F.2d 1428, 1436 (5th Cir. 1989)).

As an initial matter, the Court determines that this action could have been

brought in the Northern District of California. Civil diversity actions, such as this one,

may be brought in “a judicial district where any defendant resides, if all defendants

reside in the same State,” among other locations. 28 U.S.C. § 1391(b)(1). Uber is the

only defendant in this action, and its principal place of business is San Francisco,

California. This means it “resides” in the Northern District of California. See 28 U.S.C.

§ 1391(c) (providing that an entity with the capacity to sue and be sued in its common

name under applicable law, whether or not incorporated, shall be deemed to reside, if

a defendant, in any judicial district in which any defendant is subject to the court’s

personal jurisdiction with respect to such action); Daimler AG v. Bauman, 134 S.Ct.

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746, 761 (2011) (providing that “the place of incorporation and principal place of

business” are where a corporation is “at home” and thus “paradigmatic bases for

[personal] jurisdiction”).

The Fifth Circuit’s convenience factors also weigh in favor of transferring the

action to the Northern District of California’s San Francisco Division.

First, transferring the action would implicate the public interest to alleviate the

administrative difficulties concerning court congestion and the private interest in

“mak[ing] trial of a case easy, expeditious and inexpensive.” See Volkswagen II, 545

F.3d at 315. The Northern District of Texas “is more congested than that of the

Northern District of California.” Dkt. No. 11 at 7. “According to the most recent court

management statistics provided by the United States Courts, as of June 30, 2016, the

judges in the Northern District of Texas each had 1,208 pending cases on average, ...

while the judges in the Northern District of California each had 549 pending cases.”

Id. Accordingly, “the median time to trial for civil cases is 26.9 months in the Northern

District of Texas and 24.6 months in the Northern District of California.” Id. at 6. 

TSI counters that adjudicating cases “2.3 months quicker” is not significant. By

so arguing, it assumes that this is the only time that would be saved by transferring

the action. It likely is not. Judges in the Northern District of California are more

familiar with applying California law and may be able to resolve the dispute more

quickly even assuming all other things were equal.

Second, the interest in allowing “a local interest in having localizedcontroversies

decided at home” also weighs in favor of transfer. Volkswagen II, 545 F.3d at 315. As

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Case 3:17-cv-00169-JCS Document 19 Filed 01/11/17 Page 22 of 26
Uber explains, the RFP process transpired at Uber’s San Francisco headquarters. See

Dkt. No. 11 at 3, 7. “[T]he services under the parties’ Contract were to be provided to

Uber’s employees, most of whom are located in California.” Id. at 7. “TSI’s ‘managers

and agents’ came to Uber’s San Francisco, CA headquarters to manage and oversee’ the

initial launch of the travel services program under the parties’ Contract.” Id. (quoting

Complaint, ¶ 32). And California law applies to this dispute.

TSI nevertheless contends that this interest weighs in favor of adjudicating the

action in Dallas, Texas. It cites the location of its potential witnesses and its potential

evidence to support this contention. But, as explained in further detail below, both

parties can identify witnesses and evidence sources located closer to their preferred

forum, and the witnesses Uber identifies appear to be more material to this dispute.

TSI also notes that it largely performed the contract in Dallas, Texas. This, too,

is insufficient. The purpose of the Contract – to provide Uber’s employees with

corporate travel services that they could access from their location – suggests that the

place where Uber received the services is more important to the Contract than the

place where TSI performed the work. And San Francisco, California is the location

where a different cause of action may have occurred: the alleged fraudulent

misrepresentations that form the basis of Uber’s anticipated counter-claim for

fraudulent inducement.

Third, because California law governs this action, a transfer also helps ensure

that a forum that is familiar with the governing state law will try the dispute and

avoids potential conflict of law issues. TSI notes that “it is not a novel task for a federal

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court sitting in diversity” to “apply the law of a different State.” Dkt. No. 10 at 9. That

is so. But the Northern District of California is still, as a general matter, the more

appropriate forum to hear a case governed by California law. See Ferens v. John Deere

Co., 494 U.S. 516, 530 (1990) (noting that “‘there is an appropriateness in having the

trial of a diversity case in a forum that is at home with the state law that must govern

the case, rather than having a court in some other forum untangle problems in conflicts

of laws, and in law foreign to it’” (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-

09 (1947))).

Fourth, the private interests in securing the attendance of key witnesses and

limiting the cost of attendance for willing witnesses weigh in favor of transfer as well.

TSI has provided a longer list of potential witnesses. Dkt. No. 16 at 11. But most of

these witnesses are its employees, meaning that they do not weigh all that heavily in

the Court’s analysis. See Quicksilver, Inc. v. Academy Corp., No. 98-cv-1772-R, 1998

WL 874929, at *2 (N.D. Tex. Dec. 3, 1998) (providing that “[t]he availability and

convenience of party-witnesses is generally insignificant because a transfer based on

this factor would only shift the inconvenience” from one party to the other). Further,

Uber makes a more compelling case as to the importance of the (fewer) party and nonparty witnesses that it identifies. TSI explains that its potential witnesses may

“potentially testify[] to the nature of the work requested by Uber, the costs and

expenditures involved, and other circumstances at issue.” Dkt. No. 16 at 11. As a

result, the Court is left wondering whether any of these witnesses is uniquely able to

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put forth testimony that will be key to the dispute. In contrast, Uber notes that “[a]ll

but one of the individuals actually mentioned in the Complaint reside in California or

otherwise outside of Texas, and the remaining witness ... is a TSI employee.” Dkt. No.

18 at 9. Uber’s position wins out because “[t]he materiality and importance of each

anticipated witness’ testimony, rather than the number of witnesses residing in each

location, is most important under forum non conveniens doctrine.” Hayes v. Segue

Software, Inc., No. 3:01-cv-1490-D, 2001 WL 1464708, at *4 (N.D. Tex. Nov. 14, 2001).

The Court is not convinced that the private interest in access to sources of proof

weighs in favor of either party’s preferred forum. Uber explains that it “maintains all

records relating to the subject of the plaintiff’s complaint at its San Francisco,

California headquarters.” Dkt. No. 11 at 10-11. And TSI claims that “virtually all of

the documents and data that TSI would utilize to support the testimony of these

witnesses are located either on TSI’s servers in Texas or on personal computers

maintained by witnesses in Texas.” Dkt. No. 16 at 11-12.

But, in light of the other private and public interest factors implicated, the Court

finds that it would be in the interest of justice to transfer the action under Section

1404(a).

Conclusion

The CourtGRANTSDefendant’sMotiontoTransfer Case out of District/Division

[Dkt. No. 10] for the reasons stated herein. This action will be transferred pursuant to

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

California’s San Francisco Division. 

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SO ORDERED.

DATED: January 11, 2017

_________________________________________

DAVID L. HORAN

UNITED STATES MAGISTRATE JUDGE

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