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Case No. 17-CV-00407-LHK 

ORDER GRANTING MOTION TO REMAND

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

SIAMAK BASTAMI,

Plaintiff,

v.

SEMICONDUCTOR COMPONENTS 

INDUSTRIES, LLC,

Defendant.

Case No. 17-CV-00407-LHK 

ORDER GRANTING MOTION TO 

REMAND

Re: Dkt. No. 10

Plaintiff Siamak Bastami (“Plaintiff”) brings this suit against Defendant Semiconductor 

Components Industries, LLC (“Defendant”) for employment discrimination. Before the Court is 

Plaintiff’s Motion to Remand. ECF No. 10 (“Mot.”). Having considered the parties’ briefing, the 

relevant law, and the record in this case, the Court GRANTS Plaintiff’s Motion to Remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 14, 2016, Defendant sent Plaintiff a written offer of employment. ECF No. 10-

1, Declaration of Scardigli (“Scardigli Decl.”) Ex. A. Plaintiff accepted the offer, and was 

employed by Defendant as a System Applications, Senior Manager from January 25, 2016 to May 

27, 2016. Complaint, ECF No. 1-1 (“Compl.”) ¶ 8. Plaintiff alleges that he was disabled because 

he suffered from kidney failure, which required weekly dialysis. Id. ¶ 9. Plaintiff alleges that, on 
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May 27, 2016, Defendant terminated Plaintiff because of Plaintiff’s disability. Id. Moreover, 

Plaintiff alleges that Defendant “refused to provide reasonable accommodation for [Plaintiff’s] 

disability in the form of, for instance, a sufficient leave of absence.” Id. ¶ 10. Defendant’s leave 

policy allowed 30 days of medical leave, and Plaintiff took medical leave from April 27, 2016 to 

May 27, 2016. Id. When Plaintiff allegedly requested a “brief extension,” Defendant refused, and 

instead, terminated Plaintiff. Id. 

On July 8, 2016, Plaintiff filed a complaint with the California Department of Fair 

Employment and Housing (“DFEH”). Id. ¶ 12. The DFEH issued Plaintiff a right-to-sue notice. 

On November 14, 2016, Plaintiff filed the instant suit in the Superior Court of California 

for the County of Santa Clara. See Compl. Defendant alleged three causes of action for violation 

of California’s Fair Employment and Housing Act (the “FEHA”): (1) disability discrimination, (2) 

failure to accommodate, and (3) failure to prevent discrimination. Id.

On January 26, 2017, Defendant removed the instant suit to federal court based on 

diversity jurisdiction. ECF No. 1 (“Notice of Removal”). Plaintiff is a California resident, and 

Defendant is a corporation incorporated in Delaware with its primary place of business in Arizona. 

Id. Defendant asserts that the amount in controversy is at least $117,000. Id.

On February 9, 2017, Plaintiff filed the instant motion to remand. See Mot. Plaintiff’s 

motion for remand is based on a forum selection clause in the January 14, 2016 written offer of 

employment sent from Defendant to Plaintiff. Scardigli Decl. Ex. A. On February 23, 2017, 

Defendant filed an opposition to Plaintiff’s motion to remand, ECF No. 18 (“Opp’n”), and on 

March 2, 2017, Plaintiff filed a reply, ECF No. 19 (“Reply”).

II. LEGAL STANDARD

A suit may be removed from state court to federal court only if the federal court would 

have had subject matter jurisdiction over the case. 28 U.S.C. § 1441(a); see Caterpillar Inc. v. 

Williams, 482 U.S. 386, 392 (1987) (“Only state-court actions that originally could have been filed 

in federal court may be removed to federal court by the defendant.”). “In civil cases, subject 

matter jurisdiction is generally conferred upon federal district courts either through diversity 
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ORDER GRANTING MOTION TO REMAND

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jurisdiction, 28 U.S.C. § 1332, or federal question jurisdiction, 28 U.S.C. § 1331.” Peralta v. 

Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005). If it appears at any time before final 

judgment that the federal court lacks subject matter jurisdiction, the federal court must remand the 

action to state court. 28 U.S.C. § 1447(c).

The party seeking removal bears the burden of establishing federal jurisdiction. Provincial 

Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). “The removal 

statute is strictly construed, and any doubt about the right of removal requires resolution in favor 

of remand.” Moore–Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing 

Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

Even if a Court has subject matter jurisdiction over a suit that has been removed, a suit 

may be remanded based on a forum selection clause. See Kamm v. ITEX Corp., 568 F.3d 752, 756 

(9th Cir. 2009) (“[A] forum selection clause is similar to other grounds for not exercising 

jurisdiction over a case, such as abstention in favor of state court jurisdiction under Younger v. 

Harris, 401 U.S. 37 (1971), and related abstention cases, or a refusal to exercise supplemental 

jurisdiction and a resulting remand to state court under 28 U.S.C. § 1367(c)); QSR Mgmt., Inc. v. 

Dunkin Brands, Inc., 2008 WL 2856456, at *1 (C.D. Cal. Mar. 23, 2008) (“A court has inherent 

authority to remand an action to state court to enforce a forum selection agreement” (citation 

omitted)); Comerica Bank v. Whitehall Specialties, Inc., 352 F. Supp. 2d 1077, 1079–80 (C.D. 

Cal. 2004) (“The enforcement of a forum selection clause is a proper basis for remanding a 

removed case to state court”); Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 

273, 275, 280 (9th Cir. 1984) (affirming the district court’s remand of an action to state court on 

grounds that a valid and enforceable forum selection clause governed).

In cases based on diversity jurisdiction, federal law governs the interpretation and 

enforceability of forum selection clauses. Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 

513 (9th Cir. 1988) (“We conclude that the federal procedural issues raised by forum selection 

clauses significantly outweigh the state interests, and the federal rule announced in [M/S Bremen v. 

Zapata Off–Shore Co., 407 U.S. 1, 12 (1972)] controls enforcement of forum clauses in diversity 
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cases . . . . Moreover, because enforcement of a forum clause necessarily entails interpretation of 

the clause before it can be enforced, federal law also applies to interpretation of forum selection 

clauses.” (citation omitted)).

Under Ninth Circuit and United States Supreme Court precedent, forum selection clauses 

are presumptively valid and enforceable “‘absent some compelling and countervailing reason.’”

Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1140 (9th Cir. 2004) (quoting Bremen, 407 U.S. 

at 12). The Ninth Circuit has identified three “compelling” reasons that would permit a court to 

disregard a forum selection clause: “(1) ‘if the inclusion of the clause in the agreement was the 

product of fraud or overreaching’; (2) ‘if the party wishing to repudiate the clause would 

effectively be deprived of his day in court were the clause enforced’; and (3) ‘if enforcement 

would contravene a strong public policy of the forum in which suit is brought.’” Id. (quoting 

Richards v. Lloyd’s of London, 135 F.3d 1289, 1294 (9th Cir. 1998)).

III. DISCUSSION

The parties do not dispute that this Court has subject matter jurisdiction over this case

based on diversity jurisdiction. The Court agrees. Under 28 U.S.C. § 1332, diversity jurisdiction 

exists if the Plaintiff and Defendant are citizens of different states and the amount in controversy 

exceeds $75,000. Here, Plaintiff is a resident of California; Defendant is a company incorporated 

in Delaware with its primary place of business in Arizona; and the amount in controversy exceeds 

$75,000. Notice of Removal ¶ 18. Accordingly, the Court has diversity jurisdiction.

Regardless, Plaintiff argues that the instant suit should be remanded to the California 

Superior Court for the County of Santa Clara based on the forum selection clause in Defendant’s 

January 14, 2016 written offer of employment to Defendant. The forum selection clause states the 

following:

Governing Law and Venue

. . . .

Except for actions for injunctive or other equitable relief, which may be brought 

in any court of competent jurisdiction, any legal suit, action or proceeding arising 

out of or relating to this offer letter shall be commenced in a federal court in the 

District of California or in state court in the County of Santa Clara, California, 
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and each party hereto irrevocably submits to the exclusive jurisdiction and venue 

of any such court in any such suit, action, or proceeding. 

Scardigli Decl. Ex. A at 1–2. Plaintiff argues that even though this forum selection clause allows 

a case to be commenced in either federal court or state court, once the case has been brought in 

state court, Defendant cannot change forums by removal. 

In response, Defendant argues that the forum selection clause does not apply to the instant 

suit because (1) Plaintiff seeks injunctive relief in addition to compensatory damages, and (2) the 

instant suit does not “aris[e] out of or relat[e] to th[e] offer letter.” Moreover, Defendant argues 

that even if the forum selection clause is applicable, the terms of the forum selection clause allow 

removal.

1

 

The Court notes that the parties also disagree about how ambiguities in a forum selection 

clause should be interpreted on a motion to remand. Therefore, the Court first addresses how such 

clauses should be interpreted. The Court then addresses whether the terms of the forum selection 

clause require the instant case to be remanded. Finally, the Court discusses whether the forum 

selection clause applies to the instant case.2 

 

1 Defendant does not argue that the forum selection clause is unenforceable for any of the 

“compelling reasons” described by the Ninth Circuit in Murphy, as set forth above in Section II. 

Thus, if the forum selection clause applies and its terms prevent removal, the Court need not 

discuss whether the forum selection clause is otherwise unenforceable. 

2 As an initial matter, Defendant argues that the instant case cannot be remanded because the offer 

letter containing the forum selection clause, which is attached to the instant motion, has not been 

properly authenticated. Defendant’s argument fails. The declaration authenticating the offer letter 

indicates that Defendant produced the offer letter to Plaintiff as part of Plaintiff’s personnel file. 

See Scardigli Decl. ¶ 6 (indicating that executed agreement was “produced to Plaintiff from 

Defendant”). It is disingenuous for Defendant to now assert that the offer letter is not properly 

authenticated. Regardless, the Court need not determine whether the offer letter is properly 

authenticated because Plaintiff’s complaint reproduces the entirety of the forum selection clause 

contained in the offer letter and identifies it as the relevant clause governing forum in the instant 

suit. Compl. ¶ 6. Defendant’s answer in state court and Defendant’s Notice of Removal do not 

assert that the forum selection clause in Plaintiff’s complaint is inaccurate or the wrong contractual 

provision. See Notice of Removal & Ex. B. On a motion to remand, “the Court accepts the 

allegations of plaintiff’s complaint as true.” Clancy v. Bay Area Bank, 1997 WL 182291, at *3 

(N.D. Cal. Apr. 7, 1997), aff’d, 141 F.3d 1174 (9th Cir. 1998); City of Ann Arbor Emps. Ret. Sys. 

v. Gecht, 2007 WL 760568, at *6 (N.D. Cal. Mar. 9, 2007) (“When considering a motion to 

remand, the district court accepts as true all relevant allegations contained in the complaint and 

construes all factual ambiguities in favor of the plaintiff.” (quoting Fed. Ins. Co. v. Tyco Int’l Ltd., 

422 F. Supp. 2d 357, 391 (S.D.N.Y. 2006)). Therefore, because Plaintiff’s complaint alleges that

the forum selection clause is the relevant contractual provision governing forum, and Defendant 

does not argue otherwise, the Court may properly consider the forum selection clause on the 
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A. Interpretation of Forum Selection Clauses on a Motion to Remand

Plaintiff argues that any ambiguities in the forum selection clause should be construed 

against the drafter of the offer letter. Consul, Ltd. v. Solide Enterps, Inc., 802 F.2d 1143, 1149 

(9th Cir. 1986) (“It is axiomatic that ambiguities in contractual language are construed against the 

drafter.”). In response, Defendant argues that any ambiguities in the forum selection clause should 

be construed in Defendant’s favor because waiver of the right of removal must be “clear and 

unequivocal.” Opp’n at 2. 

The Ninth Circuit has held that parties may waive the right to remove a case to federal 

court through actions taken during the course of state court proceedings (“litigation based 

waivers”), or through agreements made between the parties in forum selection clauses (“forum 

selection clause based waivers”). See Resolution Trust Corp. v. Bayside Developers, 43 F.3d 

1230, 1240 (9th Cir. 1994) (discussing whether the defendant’s actions in state court constituted a 

waiver); Docksider, LTD v. Sea Technology, LTD, 875 F.2d 762, 763–64 (9th Cir. 1989) (finding

that forum selection clause can waive a defendant’s right of removal). The Ninth Circuit applies 

one standard to litigation based waivers and a different standard to forum selection clause based

waivers. For litigation based waivers, the Ninth Circuit has held that the waiver of the right of 

removal must be “clear and unequivocal.” Resolution Trust, 43 F.3d at 1240. In contrast, in cases 

interpreting forum selection clauses, the Ninth Circuit has made no mention of the clear and 

unequivocal standard. See, e.g., Docksider, 875 F.2d at 763–64 (finding that forum selection 

clause clearly mandated the case to proceed in a state forum without mentioning the clear and 

unequivocal standard); N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 

F.3d 1034, 1036 (9th Cir. 1995) (finding removal not precluded without applying the clear and 

unequivocal standard). 

Like the Ninth Circuit, the Third and Eleventh Circuits apply the clear and unequivocal

standard only to litigation based waivers. See Snapper, Inc. v. Redan, 171 F.3d 1249, 1261 (11th 

 

instant motion to remand. 
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Cir. 1999) (“[L]itigation-based waivers must be distinguished from [] contractual waivers.”);

Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1217 n.15 (3d Cir. 1991) (same). The Eleventh and 

Third Circuits apply the clear and unequivocal standard to litigation based waivers because 

“[o]therwise, parties would be put in the difficult position of, on the one hand, not taking any 

action in state court in order to preserve definitively the right to remove and, on the other hand, 

running the risk of a default judgment unless they take steps to defend the action in state court.” 

Snapper, 171 F.3d at 1261 (citing Foster, 933 F.2d at 1217 n.15). 

However, in the context of forum selection clause based waivers, the Eleventh and Third 

Circuits have held that applying the clear and unequivocal standard would “go[] against the 

general trend of interpreting the removal statutes against removal and probably springs from the 

outdated notion that forum selection clauses are disfavored.” Id. (citing Foster, 933 F.2d at 1217 

n.15). Although such clauses were at one time held to be unenforceable as “contrary to public 

policy,” the United States Supreme Court’s opinion in Bremen, 407 U.S. at 12, stated that “this 

notion is old-fashioned and contrary to freedom of contract.” Foster, 933 F.2d at 1217 n.15. 

Thus, the clear and unequivocal standard should not be applied to forum selection clause based 

waivers of the right of removal.

The Court notes that the Sixth Circuit has applied the clear and unequivocal standard to 

forum selection clause based waivers. See, e.g., Regis Assocs. v. Rank Hotels (Mgmt.) Ltd., 894 

F.2d 193, 195 (6th Cir. 1990) (“[T]he case law makes it clear that such waiver must be clear and 

unequivocal.”). However, Sixth Circuit law differs from that of the Ninth, Third, and Eleventh

Circuits. Moreover, the Regis court’s determination that the clear and unequivocal standard 

applies to forum selection clause based waivers relies primarily on district court decisions made in 

the litigation based waiver context. Id. at 195 (relying on Kiddie Rides USA, Inc. v. ElektroMobiltechnik GMBH, 579 F. Supp. 1476, 1479 (C.D. Ill. 1984) (“The actions taken by the 

Defendant combined with the untimeliness of the removal, are sufficient to constitute a waiver on 

the part of the Defendant.”)). Thus, the Court finds the Sixth Circuit’s rationale to be 

unpersuasive.
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For the foregoing reasons, the Court does not apply the clear and unequivocal standard to

forum selection clause based waivers of the right of removal. 

B. Whether the Forum Selection Clause Requires Remand

The Court next turns to whether the forum selection clause requires remand in the instant 

case. The Ninth Circuit has held that where a forum selection clause requires a case to be litigated

in state court, removal is inappropriate. For example, in Docksider, 875 F.2d 762, the Ninth 

Circuit addressed a forum selection clause that stated that “[v]enue of any action brought 

hereunder shall be deemed to be in Gloucester County, Virginia.” Id. at 763. The Ninth Circuit 

held that this clause “clearly designate[d] the state court in Gloucester County, Virginia, as the 

exclusive forum.” Id. 

In contrast, in Council of Laborers, 69 F.3d 1034, the Ninth Circuit addressed a forum 

selection clause that stated that “the decision of a permanent arbitrator shall be enforceable by a 

petition to confirm an arbitration award filed in the Superior Court of the City and County of San 

Francisco.” Id. at 1036. The Ninth Circuit held that because the language was not mandatory, i.e., 

did not designate the Superior Court of the City and County of San Francisco as the exclusive 

forum, the forum selection clause did not preclude removal. Id.

Here, the forum selection clause contains mandatory and exclusive language. See Scardigli 

Decl. Ex. A (each party “irrevocably submits to the exclusive jurisdiction of any such court”). 

However, the forum selection clause here refers to two different forums: state court in the County 

of Santa Clara and federal court in the “District of California.”

3

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of Laborers, where the question was whether the language was sufficiently mandatory and 

exclusive, the question here is whether the mandatory and exclusive language applies to the forum 

where Plaintiff first brought suit, thus preventing removal by Defendant.

As noted above, the forum selection clause states that “any legal suit, action or 

 

3

The Court notes that there is no single “District of California,” but four such districts: the 

Northern, Eastern, Central, and Southern Districts. A single “District of California” has not 

existed since the 1800s. However, the Court construes this phrase to mean any federal district 

court located in California.
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proceeding . . . shall be commenced in a federal court in the District of California or in state court 

in the County of Santa Clara, California, and each party hereto irrevocably submits to the 

exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding.” 

Scardigli Decl. Ex. A. Plaintiff argues that this forum selection clause unambiguously indicates 

that Defendant has “irrevocably submit[ted] to the exclusive jurisdiction and venue” of the court 

where an action is commenced. In contrast, Defendant argues that the forum selection clause 

indicates that the parties consented to the jurisdiction of both the federal and state forum and that 

the clause does not limit either party’s right of removal from the state to the federal forum.

The Court agrees with Plaintiff that the forum selection clause requires remand of the 

instant case. The Court reaches this conclusion because the forum selection clause states that 

Defendant “irrevocably submits to the exclusive jurisdiction of any such court in any such suit, 

action or proceeding.” Scardigli Decl. Ex. A. The instant suit was filed in the California Superior 

Court for the County of Santa Clara, one of the courts to whose “exclusive jurisdiction and venue”

Defendant agreed to “irrevocably submit[].” Thus, because Defendant has agreed to the 

“exclusive jurisdiction and venue” of one of the specified courts in the instant suit, the mandatory 

language of the forum selection clause precludes Defendant from changing that exclusive 

jurisdiction and venue through removal. See Docksider, 875 F.2d at 763 (holding that clause 

mandating a certain forum prevents removal). 

Regardless, Defendant argues that Defendant’s submission to the “exclusive jurisdiction 

and venue of any such court” actually meant that Defendant was “irrevocably submit[ting] to the 

exclusive jurisdiction” of both state court and federal court, and thus removal is allowed. 

However, the wording of the forum selection clause precludes such an interpretation. The forum 

selection clause states that Defendant submits to the exclusive jurisdiction of “any such court in 

any such suit” rather than “any such courts” or “such courts.” The use of the singular “court”

rather than plural “courts” indicates that Defendant only has submitted to the exclusive jurisdiction 

and venue of a single court in “any such suit.” Compare S. Ohio Sand, LLC v. Preferred 

Proppants, LLC, 2016 WL 1457931, at *2 (N.D. Ohio Apr. 14, 2016) (holding that statement that 
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clause stating that “each Party irrevocably submits to the exclusive jurisdiction of such courts” did 

not waive the right to remove because “[i]n using the plural term “courts”, the parties reflected 

some acknowledgment that cases could be removed from state court”); Spenlinhaur v. R.R. 

Donnelley & Sons Co., 534 F. Supp. 2d 162, 162–63 (D. Me. 2008) (finding no waiver of removal 

where defendant irrevocably submitted “to the exclusive jurisdiction of the chosen courts”). Thus, 

because the suit commenced in Santa Clara County Superior Court, and Defendant submitted to 

that court’s exclusive jurisdiction, a change in jurisdiction and venue cannot occur. 

Defendant also argues that the court in which Plaintiff decided to commence the instant 

suit is not necessarily the Court to whose “exclusive jurisdiction and venue” Defendant must 

submit. That is, Defendant argues that even if the suit begins in state court, Defendant can choose 

to instead “irrevocably submit” to the exclusive jurisdiction and venue of federal court after 

removal. However, the forum selection clause does not provide the defendant in a lawsuit such a 

choice. The forum selection clause mandates that a plaintiff bring suit in either state court in Santa 

Clara County or federal court in the “District of California,” and indicates that each party 

“irrevocably submits,” in the present tense, to “any such court in any such suit.” Thus, the forum 

selection clause does not provide Defendant the choice to submit to the exclusive jurisdiction of a 

different court from the one in which the suit was filed because Defendant has already submitted 

to the exclusive jurisdiction of “any such court” at the time a suit is brought. “[I]t would seem odd 

for parties who ‘irrevocably consent’ to sue one another (if at all) in [California] federal or state 

court to also agree that they can challenge (by way of removal) each others’ decision to file in 

[California] state court.” InterDigital, Inc. v. Wistron Corp., 2015 WL 4537133, at *1 (D. Del. 

June 18, 2015).

Even if the forum selection clause was ambiguous and could be read in the manner 

asserted by Defendant, the Court would still find removal to be appropriate. Any ambiguity in a 

contract must be interpreted against the drafter, including a forum selection clause. Consul, 802 

F.2d at 1149 (“It is axiomatic that ambiguities in contractual language are construed against the 

drafter.”). The forum selection clause is written as part of an offer letter from Defendant to 
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Plaintiff and was written by Defendant. Thus, to the extent the forum selection clause is 

ambiguous, it must be construed against Defendant and against removal. 

Accordingly, the Court finds that the forum selection clause does not allow removal from 

federal court to state court in the instant case. 

C. Applicability of the Forum Selection Clause

As noted above, the forum selection clause states that “[e]xcept for actions for injunctive 

or other equitable relief, . . . any legal suit, action or proceeding arising out of or relating to this 

offer letter shall be commenced in a federal court in the District of California or in state court in 

the County of Santa Clara, California, and each party hereto irrevocably submits to the exclusive 

jurisdiction and venue of any such court in any such suit, action, or proceeding.” Scardigli Decl. 

Ex. A at 1–2 (emphases added).

Defendant argues that even if the forum selection clause does not allow removal, the 

clause, for two reasons, does not apply to the instant suit. First, Defendant argues that the forumselection clause does not apply because it contains an exception for “actions for injunctive or other 

equitable relief” (hereafter, the “injunctive or equitable relief exception”), and Plaintiff’s 

complaint includes a prayer for injunctive and declaratory relief. Scardigli Decl. Ex. A. Second, 

Defendant argues that the forum selection clause does not apply because even though the forum 

selection clause only applies to “action[s] or proceeding[s] arising out of or relating to this offer 

letter,” the instant suit does not arise out of the offer letter. The Court addresses each argument in 

turn.

1. Injunctive or Equitable Relief Exception

The Court first addresses whether the prayer for injunctive and declaratory relief in 

Plaintiff’s complaint in the state court action prevents the forum selection clause from applying to 

the instant suit. Plaintiff’s complaint contains three FEHA causes of action: (1) disability 

discrimination, (2) failure to accommodate, and (3) failure to prevent discrimination. Compl. 

¶¶ 14–28. Each of these causes of action is based on allegations that Defendant discriminated 

against Plaintiff when Defendant refused to give Plaintiff extra medical leave for his disability and 
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terminated Plaintiff’s employment. See id. ¶¶ 16 (“[A]s set forth above, Defendant[] 

discriminated against Bastami based on actual and perceived disability.”), 21 (“Defendants refused 

to provide Bastami with reasonable accommodation for his known disability.”). Under each cause 

of action, Plaintiff does not request injunctive or declaratory relief, but seeks “damages as set forth 

below.” Compl. ¶¶ 18, 23, 28. In the prayer for relief, however, in addition to “compensatory, 

special, and general damages,” Plaintiff requests injunctive and declaratory relief for Defendant to 

halt its discriminatory practices, to provide training for compliance with FEHA, and to develop a 

policy that will prevent discrimination. Compl. at 5. Declaratory relief, like injunctive relief, is a 

remedy that “sounds in equity.” Premiere Radio Networks, Inc. v. Hillshire Brands Co., 2013 WL 

5944051, at *3 (C.D. Cal. Nov. 4, 2013). 

As noted above, the forum selection clause includes an exception for “actions for 

injunctive or other equitable relief.” However, the forum selection clause does not address the 

parties’ expectations where the plaintiff seeks both compensatory damages and injunctive or other 

equitable relief in the same suit for the same causes of action. There are three potential

interpretations of the injunctive or equitable relief exception. A suit could be an action for 

injunctive or other equitable relief where a plaintiff (1) seeks solely injunctive or equitable relief, 

(2) seeks primarily or predominantly injunctive or equitable relief, or (3) includes a prayer for 

injunctive or equitable relief in the complaint that is not the primary or predominant relief sought. 

Defendant argues for the third of these three interpretations; Plaintiff argues for the first or second 

of these three interpretations. The Court first interprets the injunctive or equitable relief exception, 

and then discusses whether the instant suit falls within the exception.

For the reasons discussed below, the Court finds that the plain meaning of the forum 

selection clause supports Plaintiff’s rather than Defendant’s interpretation of the injunctive or 

equitable relief exception, and that the exception does not apply where a complaint simply 

includes a prayer for injunctive or equitable relief that is not the primary or predominant relief 

sought. As noted above, the forum selection clause states that it does not apply to “actions for 

injunctive and other equitable relief.” This language does not expand the exception to “any 
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actions in which injunctive or other equitable relief is sought.” Instead, the language of the clause 

states that the “action[]” itself should be for injunctive or other equitable relief. It would be a 

strained interpretation of the injunctive or equitable relief exception and its focus on the entire

“action[]” to find that a prayer for injunctive or equitable relief that is not the primary or 

predominant relief sought in the suit still transforms the entire suit into an “action[] for injunctive 

or other equitable relief.” 

Moreover, as noted above, “[i]t is axiomatic that ambiguities in contractual language are 

construed against the drafter.” Consul, 802 F.2d at 1149. Thus, to the extent the injunctive or 

equitable relief exception is ambiguous as to the three interpretations described above, the Court 

must construe the exception against Defendant. Therefore, the Court finds that the injunctive or 

equitable relief exception to the forum selection clause does not extend to circumstances where a 

plaintiff includes a prayer for injunctive or equitable relief that is not the primary or predominant

relief sought. 

Accordingly, the injunctive or equitable relief exception to the forum selection clause may 

apply only where either (1) injunctive or equitable relief is the sole remedy sought by the plaintiff, 

or (2) injunctive or equitable relief is the primary or predominant remedy sought by the plaintiff. 

The Court need not determine which of these two interpretations of the injunctive or equitable 

relief exception is correct because the Court finds below that either interpretation would require 

remand.4The Court addresses each interpretation in turn.

 

4 However, in other contexts, courts have generally looked to what type of relief predominates to 

determine whether a suit is primarily or predominantly seeking equitable relief or damages. For 

example, in Danford v. Schwabacher, 488 F.2d 454 (9th Cir. 1973), the Ninth Circuit discussed 

whether a complaint was equitable or “legal” for the purposes of determining whether the stay of a 

case pending arbitration could be appealed (if a claim was a “legal” action rather than a suit in 

equity, it could be appealed). Id. at 473. The Ninth Circuit held that to determine whether a suit 

was a “legal” action rather than an action in equity, courts must look to “the face of [the] 

complaint” to determine whether “the legal or the equitable aspects predominate.” Id. Similarly, 

in Mach-Tronics, Inc. v. Zirpoli, 316 F.2d 820 (9th Cir. 1963), the Ninth Circuit held that a case 

was “a suit in equity seeking an injunction” because even though compensatory damages were 

pled as part of the suit, “[t]he allegation of damages is apparently incidental to the proceeding for 

equitable relief.” Id. at 829; see also Dhamer v. Bristol-Myers Squibb Co., 183 F.R.D. 520, 528 

(N.D. Ill. 1998) (“When an action for creation of a medical monitoring fund is primarily a suit for 

damages or incidental to claims for money damages, however, it is not appropriate for class 
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As to the first interpretation, injunctive and equitable relief are certainly not the sole

remedies pled in Plaintiff’s complaint because Plaintiff’s complaint seeks damages for each FEHA 

cause of action. Thus, if the injunctive or equitable relief exception only applies if the sole 

remedy sought in the complaint is injunctive or equitable, the exception would not apply to the 

instant case.

As to the second interpretation, for the following reasons, injunctive and equitable relief 

are not the primary or predominant forms of relief sought by Plaintiff’s complaint. For each cause 

of action under the FEHA, Plaintiff does not seek injunctive or declaratory relief but solely states 

that he “seeks damages as set forth below.” Compl. ¶¶ 18, 23, 28. Injunctive relief is mentioned 

once in the introduction of the complaint, and then listed a second time in the prayer for relief, and 

is not otherwise mentioned in the complaint. Similarly, the complaint mentions declaratory relief 

only once in the prayer for relief. Under similar circumstances, this Court has held that the causes 

of action in a complaint did not clearly seek injunctive relief because the plaintiff had only 

mentioned injunctive relief in the prayer for relief and had not connected that prayer for relief to 

the causes of action. See Madani v. Cty. of Santa Clara, 2017 WL 1092398, at *11 (N.D. Cal. 

Mar. 23, 2017) (holding that a prayer for injunctive relief did not clearly indicate that Plaintiff 

sought injunctive relief under any specific cause of action); see also Creighton v. City of 

Livingston, 628 F. Supp. 2d 1199, 1216 (E.D. Cal. 2009) (same). Similarly here, Plaintiff’s 

mention of injunctive and declaratory relief does not transform the FEHA causes of action for 

monetary damages into causes of action for injunctive relief. Thus, because the causes of action 

themselves are not causes of action for injunctive or equitable relief, such a prayer does not

transform the entire suit into an “action[] for injunctive or other equitable relief.”

Moreover, as noted above, the prayer for injunctive and declaratory relief seeks 

 

certification [as an injunctive class]”). Mach-Tronics and Dhamer indicate that where a suit is 

primarily or predominantly one for equitable relief, and money damages are incidental, the suit is 

still considered a suit for equitable relief, and vice versa. Therefore, these cases confirm that to

determine whether a suit is an “action[] for injunctive or equitable relief,” courts look to whether 

the equitable aspects of the suit predominate.
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prospective relief that would require Defendant to halt discrimination in the future. However, 

because Plaintiff’s suit is brought against Defendant for a single incident in which Plaintiff was 

fired from his job due to disability discrimination, and Plaintiff mentions no facts to support an 

allegation of continuing discrimination, there are no facts that support Plaintiff’s prayer for

prospective injunctive and declaratory relief. Therefore, the Court concludes that Plaintiff’s 

request for injunctive and equitable relief is not the primary or predominant relief sought in the 

instant suit. Thus, the injunctive or equitable relief exception does not apply to the instant suit. 

Accordingly, the Court finds that the injunctive or equitable relief exception does not preclude the 

application of the forum selection clause to the instant suit. 

2. Whether the Instant Suit Arises Out Of or Relates To the Offer Letter

Defendant argues that the forum selection clause does not apply because the forum 

selection clause only applies to “action[s] or proceeding[s] arising out of or relating to this offer 

letter.” Defendant contends that the FEHA causes of action are statutory causes of action that do 

not arise from or relate to the offer letter. In response, Plaintiff argues that the statutory causes of 

action at least “relate to” the offer letter because the causes of action arise from Defendant’s 

termination of the employment relationship created by the offer letter.

The Ninth Circuit has addressed similar “arising out of or relating to language” albeit in 

the context of arbitration provisions. See Cape Flattery Ltd. v. Titan Mar., LLC, 647 F.3d 914, 

922 (9th Cir. 2011). In general, when the phrase “arising out of or relating to” is used in an 

arbitration provision, the “parties intend to include a broad arbitration provision.” Id.; see also 

Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir. 1999) (such language “reaches every 

dispute between the parties having a significant relationship to the contract and all disputes having 

their origin or genesis in the contract”). Thus, in Smith v. VMware, Inc., 2016 WL 54120, at *6–7 

(N.D. Cal. Jan. 5, 2016),5a court in this district held that an arbitration provision that stated that it 

 

5

The caption for this case in Westlaw states the defendant’s name as “Vmware, Inc.” However, 

the correct name for the defendant is “VMware, Inc.,” which is used throughout the district court

order in that case. Therefore, the Court uses the case name Smith v. VMware in this order.
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included disputes “arising under or relating to” an employment agreement, included claims for 

retaliation and wrongful termination. Id. The VMware court reasoned that “the [employment 

agreement] sets forth the relationship between the parties and their rights therein; thus, both 

retaliation and wrongful termination claims, at the very least, relate to the parties’ relationship.” 

Id.

Similarly, in the context of forum selection clauses, district courts have held that the term 

“relating to” is “generally construed quite broadly.” Kebb Mgmt., Inc. v. Home Depot U.S.A., Inc., 

59 F. Supp. 3d 283, 289 (D. Mass. 2014) (holding that forum selection clause applied to claim for 

unfair or deceptive trade practices under Massachusetts consumer protection law where the forum 

selection clause limited its applicability to “disputes under or relating to [the contract between the 

parties]”); see also Somerville Auto Transp. Serv., Inc. v. Auto. Finance Corp., 691 F. Supp. 2d 

267, 271–72 (D. Mass. 2010) (“Courts generally construe the phrase ‘relating to’ broadly, likening 

the phrase to ‘in connection with’ and ‘associated with,’ and ‘typically defined more broadly 

and . . . not necessarily tied to the concept of a causal connection.’”).

This case is similar to VMware. Although this case involves a forum selection clause 

rather than an arbitration clause, the Court finds that the VMware court’s reasoning is dispositive, 

especially because the phrase “relating to” is interpreted broadly for both forum selection and 

arbitration clauses. See Kebb, 59 F. Supp. 3d at 289 (interpreting “related to” in forum selection 

clause broadly). The offer letter sets forth the relationship between the parties and the FEHA 

claims for discriminatory termination, failure to accommodate, and failure to prevent 

discrimination “at the very least, relate to the parties’ relationship” just as the wrongful 

termination and retaliation claims related to the parties’ relationship in VMware. See VMware, 

2016 WL 54120 at *6–7. Therefore, the Court finds that “arising out of or relating to” language

does not prevent the forum selection clause from applying to the instant suit. 

Accordingly, because the forum selection clause applies and indicates that Defendant 

consented to the exclusive jurisdiction of Santa Clara County Superior Court, the Court GRANTS 

Plaintiff’s Motion to Remand. 
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IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Remand. The Clerk 

shall transfer the instant suit to the California Superior Court for the County of Santa Clara.

IT IS SO ORDERED.

Dated: April 13, 2017

______________________________________

LUCY H. KOH

United States District Judge