IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOSEPH KWIECINSKI,

Plaintiff,

v.

MEDI-TECH INTERNATIONAL

CORP., a Delaware

corporation,

Defendant.

3:14-CV-01512-BR

 

OPINION AND ORDER 

DONALD B. POTTER

Spaulding & Potter LLP

3236 S.W. Kelly Avenue

Suite 101

Portland, OR 97239

(503) 223-2612 

Attorneys for Plaintiff

DANIEL J. NICHOLS

Gordon & Rees LLP

121 S.W. Morrision

Suite 1575

Portland, OR 97204

(503) 222-1075 

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:14-cv-01512-BR Document 20 Filed 06/25/15 Page 1 of 15
BROWN, Judge.

This matter comes before the Court on Defendant Medi-Tech

International Corp.'s Motion (#6) to Dismiss Amended Complaint. 

For the reasons that follow, the Court DENIES Defendant’s Motion.

BACKGROUND

The following facts are taken from the Complaint, the

Amended Complaint, and the parties' materials related to

Defendant’s Motion to Dismiss.

At some point before July 20, 2012, Plaintiff Joseph

Kwiecinski, an Oregon resident, was interviewed by telephone and

videoconference in Oregon by Defendant, a Delaware corporation

with its principal place of business in New York, for a position

as a sales representative for Defendant’s Northwest territory,

which includes Oregon, Washington, Alaska, Montana, and Idaho.

In July 2012 Defendant offered Plaintiff the salesrepresentative position over the telephone while Plaintiff was in

Oregon. 

On July 20, 2012, Defendant emailed Plaintiff an employment

agreement. Plaintiff signed the employment agreement at his

residence in Oregon and emailed it to Defendant. The employment

agreement included the following forum-selection clause:

Should any legal dispute, pursuant to this

contract, be filed against either party, all

disputes must be filed in the State of New York,

2 - OPINION AND ORDER

Case 3:14-cv-01512-BR Document 20 Filed 06/25/15 Page 2 of 15
Supreme Court, County of Kings and all disputes

will be governed by appropriate New York State

law.

Decl. of Millard Roper, Ex. A at 2.

On August 20, 2012, Plaintiff began working for Defendant

out of an office in his home in Oregon. In August 2012 Plaintiff

traveled to the New York City metropolitan area for in-service

training.

On August 22, 2012, while on the in-service training trip,

Plaintiff was a passenger in a car driven by a coworker that was

rear-ended by a third party. Plaintiff suffered unspecified

injuries. Plaintiff “quickly” informed Randy Walsh, Defendant’s

Vice President of Sales, about Plaintiff’s injuries. Plaintiff,

however, did not immediately seek medical attention because he

believed at that time that his injuries were not severe.

Over the two days following the accident Plaintiff did not

recover fully from his injuries and advised his “superiors” that

he needed to see a doctor. Plaintiff, however, was unable to see

a doctor before his August 24, 2012, flight back to Oregon.

On August 24, 2012, Plaintiff left messages for George

Fortunato, Defendant’s President, that he might have a worker’s

compensation claim.

On August 27, 2012, Fortunato allegedly advised Plaintiff in

a telephone conversation to have any doctor bills arising from

the accident sent directly to Fortunato for payment. Fortunato

3 - OPINION AND ORDER

Case 3:14-cv-01512-BR Document 20 Filed 06/25/15 Page 3 of 15
allegedly advised Plaintiff that he did not want any worker’s

compensation claims made against Defendant and indicated

Plaintiff would be terminated if he filed a worker’s compensation

claim.

In September 2012 Plaintiff received a letter from the

insurance company of the co-worker who was driving the car

informing Plaintiff that he needed to file a workers'

compensation claim. On September 26, 2012, Plaintiff filed a

workers' compensation claim in New York.

On October 29, 2012, Walsh telephoned Plaintiff and told him

that his employment was terminated.

On November 1, 2012, Plaintiff received a letter at his

Oregon address from Walsh terminating Plaintiff’s employment as

of October 29, 2012.

On February 22, 2013, Plaintiff filed a workers’

compensation claim in Oregon.

On March 4, 2013, the Workers’ Compensation Board for the

State of New York held a hearing on Plaintiff’s claim. Roper

Decl., Ex. C at 1. Plaintiff participated by telephone.

On March 7, 2013, the New York Workers’ Compensation Board

issued a Notice of Decision in which it appears to have closed

the matter and noted Plaintiff was to “reopen case with counsel. 

No further action is planned by the Board at this time.” Roper

Decl., Ex. C at 1.

4 - OPINION AND ORDER

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On September 23, 2014, Plaintiff filed an action in this

Court against Defendant alleging claims for workers’ compensation

discrimination in violation of Oregon Revised Statute 

§ 659A.040, failure to pay wages in violation of Oregon’s wageand-hour laws, and failure to pay final wages in violation of

Oregon’s wage-and-hour laws.

On December 15, 2014, before Defendant filed an Answer,

Plaintiff filed an Amended Complaint in which he alleged claims

for workers’ compensation discrimination in violation of Oregon

Revised Statute § 659A.040 and failure to pay final wages in

violation of Oregon’s wage-and-hour laws.

Defendant filed a Motion to Dismiss Amended Complaint for

lack of personal jurisdiction and/or on the ground that venue is

not proper in Oregon. On April 17, 2015, the Court heard oral

argument on Defendant’s Motion. At oral argument Plaintiff

voluntarily dismissed his claim against Defendant for failure to

pay final wages in violation of Oregon’s wage-and-hour laws, the

Court denied Defendant’s Motion to Dismiss for lack of personal

jurisdiction, and the Court directed the parties to file

simultaneous briefs on the Motion to Dismiss the remaining claim

for workers’ compensation discrimination for lack of venue.

On April 27, 2015, the parties filed supplemental briefs,

and the Court took this matter under advisement.

5 - OPINION AND ORDER

Case 3:14-cv-01512-BR Document 20 Filed 06/25/15 Page 5 of 15
STANDARDS

"A defendant may raise a Rule 12(b)(3) motion to dismiss for

improper venue in its first responsive pleading or by a separate

pre-answer motion." Design Res., Inc. v. Leather Indus. of Am.,

Inc., No. C09-611RSM, 2010 WL 342181, at *1 (W.D. Wash. Jan. 21,

2010)(citing Fed. R. Civ. P. 12(b)(3)). Plaintiff bears the

burden to establish venue is proper. Id. (citing Piedmont Label

Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir.

1979)). "When deciding a motion under Fed. R. Civ. P. 12(b)(3),

the Court need not accept the pleadings as true, and may consider

facts outside of the pleadings." Id., at *2 (citing Argueta v.

Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996)).

DISCUSSION

Defendant moves to dismiss this matter for improper venue

pursuant to Rule 12(b)(3) on the ground that Plaintiff’s claims

for wrongful termination for filing a workers’ compensation claim

and for failure to pay final wages are governed by Plaintiff’s

employment agreement, which included a forum-selection clause

providing for the resolution of disputes in New York.

A. Applicable law

The Ninth Circuit applies “federal law in interpreting

. . . forum selection clause[s].” Simonoff v. Expedia, Inc., 643

F.3d 1202, 1205 (9th Cir. 2011)(citing Doe 1 v. AOL LLC, 552 F.3d

6 - OPINION AND ORDER

Case 3:14-cv-01512-BR Document 20 Filed 06/25/15 Page 6 of 15
1077, 1081 (9th Cir. 2009)). Under federal law “[t]he plain

language of the contract should be considered first with the

understanding that the common or normal meaning of language will

be given to the words of a contract unless circumstances show

that in a particular case a special meaning should be attached to

it.” Id. (quotations omitted).

B. Analysis

As noted, the employment agreement signed by Plaintiff

included the following forum-selection clause:

Should any legal dispute, pursuant to this

contract, be filed against either party, all

disputes must be filed in the State of New York,

Supreme Court, County of Kings and all disputes

will be governed by appropriate New York State

law.

Plaintiff’s remaining claim for workers’ compensation

discrimination is a statutory claim rather than a contract claim. 

The Ninth Circuit, however, has held “in some circumstances, a

contractual forum selection clause may also apply to related

non-contract claims.” Petersen v. Boeing Co., 715 F.3d 276, 283

n.7 (9th Cir. 2013). Specifically, contractual forum-selection

clauses may apply to noncontract claims “only when ‘resolution of

the [noncontract] claims relates to interpretation of the

contract.’” Id. (quoting Manetti–Farrow, Inc. v. Gucci Am.,

Inc., 858 F.2d 509, 514 (9th Cir. 1988)). Resolution of noncontract claims “relate to” interpretation of the contract when

the noncontract “claims require interpretation of the contract”;

7 - OPINION AND ORDER

Case 3:14-cv-01512-BR Document 20 Filed 06/25/15 Page 7 of 15
i.e., the non-contract claims “cannot be adjudicated without

analyzing whether the parties were in compliance with the

contract.” Manetti-Farrow, 858 F.2d at 514 (citation omitted). 

To establish a prima facie claim for workers’

compensation discrimination under Oregon law a plaintiff must

show

(1) that the plaintiff invoked the workers'

compensation system; (2) that the plaintiff was

discriminated against in the tenure, terms or

conditions of employment; and (3) that the

employer discriminated against the plaintiff in

the tenure or terms of employment because he or

she invoked the workers' compensation system.

Kirkwood v. Western Hyway Oil Co., 204 Or. App. 287, 293

(2006)(quotation omitted). If a plaintiff makes out a prima

facie claim of workers’ compensation discrimination, the employer

must then “articulate some legitimate nondiscriminatory reason

for the adverse employment action.” Cox v. Wal-Mart Stores Inc.

441 F. App’x 547, 551 (9th Cir. 2011)(citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). 

Defendant asserts Plaintiff’s workers’ compensation

discrimination claim relates to the employment agreement, and,

therefore, this matter must be filed in New York. Specifically,

Defendant asserts Plaintiff was a probationary employee pursuant

to the employment contract at the time of his termination;

Plaintiff did not comply with the terms of his probationary

employment; and, therefore, Defendant was entitled to terminate

8 - OPINION AND ORDER

Case 3:14-cv-01512-BR Document 20 Filed 06/25/15 Page 8 of 15
Plaintiff’s employment. Defendant further asserts litigation of

Plaintiff’s compliance with the probationary terms of his

employment will require reference to the employment agreement,

and, therefore, Plaintiff’s worker’s compensation discrimination

claim “relates to” the employment agreement and the forumselection clause applies. Defendant cites a number of cases to

support its argument, but they are distinguishable. For example,

in Sheasly v. Orr Felt Company the plaintiff brought an action

against his employer asserting claims for disability

discrimination in violation of Oregon Revised Statute § 659A.100

and wrongful termination to prevent him from receiving welfare

plan benefits. No. 10-CV-956-PK, 2010 WL 4273230, at *1 (D. Or.

Oct. 25, 2010). The defendant filed a motion to dismiss for

improper venue on the ground that the plaintiff was employed

pursuant to an employment agreement with a forum-selection clause

that required the action to be filed in Ohio. The forumselection clause provided in pertinent part:

[The plaintiff] and [the defendant] hereby agree

that any dispute arising under this Agreement

shall be determined in the Common Pleas Court of

Miami County, State of Ohio or in Federal District

Court for the Southern District of Ohio, Western

Division, and that no action shall be filed in any

other court pertaining to any dispute arising out

of or connected with this Agreement.

Id., at *2 (emphasis in original). With respect to

interpretation of the language of the forum-selection clause the

court held:

9 - OPINION AND ORDER

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[I]f the disjunctive “or” in the operative

language of the clause's second provision (“any

dispute arising out of or connected with [the

Employment Agreement]”) is to be given its common

or normal meaning, or indeed any meaning at all,

then “any dispute arising out of” must necessarily

mean something different from “any dispute . . .

connected with.” More specifically, giving the

words of the two phrases their common or normal

meaning, the latter phrase must necessarily

encompass claims with a more attenuated connection

to the Employment Agreement than claims strictly

“arising out of” the agreement.

Id., at *4. Applying that interpretation to the plaintiff’s

claims, the court held:

[B]oth [the plaintiff’s] ERISA claim and his

perceived disability claim are factually premised

on the termination of his employment relationship

with [the defendant]. Although the parties'

employment relationship could have arisen

independently of the Employment Agreement, in fact

it did not; instead, the parties' employment

relationship was both created and governed by the

terms of the Employment Agreement. Because [the

plaintiff’s] claims are premised on the

termination of a relationship created and governed

by the Employment Agreement, they are necessarily

“connected with” it, although they do not “aris[e]

under” it. [The plaintiff’s] claims are therefore

within the scope of the second provision of the

forum selection clause . . ., although not within

the scope of the provision's first clause.

Id., at *5 (emphasis added). 

Here the forum-selection clause limits its

applicability to legal disputes “pursuant to this contract.” 

This language is similar to the limited “arising under” language

in Sheasly and not as broad as the additional contractual

provision in Sheasly that also subjected disputes “connected

10 - OPINION AND ORDER

Case 3:14-cv-01512-BR Document 20 Filed 06/25/15 Page 10 of 15
with” the agreement to the forum-selection clause. Thus, the

court’s holding in Sheasly that the plaintiff’s claims were

subject to the forum-selection clause only under the broader

“connected with” provision suggests Plaintiff’s claim here would

not be subject to the forum-selection clause.

Similarly, in Slater v. Energy Services Group

International, Inc., the plaintiff brought an action against her

employer for violation of Title VII, 42 U.S.C. § 2000e; the

Florida Civil Rights Act, Fla. Stat. § 760.01, et seq. (FCRA);

and the Florida Whistleblower Act, Fla. Stat. § 448.102 (FWA). 

634 F.3d 1326 (11th Cir. 2011). The district court dismissed the

plaintiff’s claims on the ground of improper venue based on a

forum-selection clause in the plaintiff’s employment agreement. 

The forum-selection clause provided in pertinent part: “The

parties agree that all claims or causes of action relating to or

arising from this Agreement shall be brought in a court in the

City of Richmond, Virginia.” Id. at 1328-29. The Eleventh

Circuit affirmed the district court and noted the phrase

“relating to” in the forum-selection clause indicated the clause

applied to “all claims arising ‘directly or indirectly’ from the

relationship evidenced by the contract.” Id. at 1331. Because

the plaintiff asserted the defendant “violated its employment

obligations by discriminating and retaliating against her,” the

court concluded her claims arose indirectly from the relationship

11 - OPINION AND ORDER

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evidenced by the contract. Id. 

Here, as noted, the forum-selection clause applies only

to disputes “pursuant to the contract.” The forum-selection

clause does not contain any broader language or provision for

disputes “related to” or “connected with” the employment

relationship. The court’s conclusion in Slater, therefore,

suggests Plaintiff’s workers’ compensation discrimination claim

is not within the ambit of the forum-selection clause.

Defendant cites two other cases in support of its

assertion that Plaintiff’s claim for workers’ compensation

discrimination is subject to the forum-selection clause: 

Martinez v. Bloomber, LP, 740 F.3d 211 (2d Cir. 2014), and

Enriquez v. Seaton, LLC, No. 13–1474– RDR, 2014 WL 791161 (D.

Kan. Feb. 27, 2014). In Martinez the court applied English law

and in Enriquez the court applied Kansas law. These cases,

therefore, are inapplicable.

Plaintiff relies on Shapiro v. American Bank to support

his assertion that his workers’ compensation discrimination claim

is not subject to the forum-selection clause. No. 3:12–CV–

01358–AC, 2013 WL 4095246 (D. Or. Aug. 8, 2013). In Shapiro the

plaintiff brought an action against her employer for violation of

Oregon's Whistleblowing Statute, Oregon Revised Statute 

§ 659A.199, and for discrimination under Oregon Revised Statute 

§ 659A.230 based on the plaintiff reporting criminal conduct. 

12 - OPINION AND ORDER

Case 3:14-cv-01512-BR Document 20 Filed 06/25/15 Page 12 of 15
The defendant moved to dismiss the action for improper venue on

the ground that the plaintiff’s employment contract contained the

following forum-selection clause: “This Agreement shall be

governed by, construed and interpreted in accordance with laws of

the State of Maryland. . . . Employee agrees that he or she will

be subject to the jurisdiction of and appear in Maryland federal

and state courts.” Id., at *1. The court held the plaintiff’s

claims were not subject to the forum-selection clause:

Missing from the agreement here is the more

inclusive language often found in employment

contracts that covers all claims arising in the

scope of employment, without qualification. Thus,

the express terms of the employment contract limit

the scope of the governing law provision to the

Agreement. In fact, the language in the forum

selection clause here is as restrictive as

instances in which the parties agree to litigate

in a particular forum claims “arising under” the

agreement. See Mediterranean Enter., Inc. v.

Ssanyong Corp., 708 F.2d 1458, 1464 (9th Cir.

1983)(“We have no difficulty finding that ‘arising

under’ is intended to cover a much narrower scope

of disputes, i.e., only those relating to the

interpretation and performance of the contract

itself.”). Neither the express provisions of

Shapiro's employment contract nor the implementing

language of the forum selection clause contemplate

Shapiro's claims here.

Id., at *6. The court distinguished the forum-selection clause

at issue with the clause in Slater: 

Slater can be distinguished from the case at hand,

however, because the forum selection clause in the

employment contract in Slater was much broader in

scope than the forum selection clause in the

employment contract in this case. Id. at 1329. 

Because the forum selection clause in the contract

in question in Slater governed the entirety of the

13 - OPINION AND ORDER

Case 3:14-cv-01512-BR Document 20 Filed 06/25/15 Page 13 of 15
employment relationship between the plaintiff and

her employer, the Eleventh Circuit found “the

clause is expressly applicable to ‘all claims or

causes of action relating to or arising from [the

employment agreement].’ This includes all claims

arising ‘directly or indirectly from the

relationship by the contract.” Id. at 1331

(citation omitted). This language is much broader

than the language used in the forum selection

clause here, which expressly governs only claims

arising from the employment contract, and is

silent as to claims relating to the contract.

Id., at *7.

The Court finds the language of the forum-selection

clause here to be similar to the restrictive language in Shapiro

rather than the broad language in Sheasley and Slater. Like the

court in Shapiro, this Court concludes Plaintiff’s claim for

workers’ compensation discrimination can “be adjudicated without

analyzing whether the parties were in compliance with the

contract.” See Manetti-Farro, 858 F.2d at 514. The Court,

therefore, concludes Plaintiff’s claim for workers’ compensation

discrimination is not subject to the forum-selection clause found

in his employment agreement. 

Accordingly, the Court denies Defendant’s Motion to

Dismiss Amended Complaint. 

CONCLUSION

For these reasons, the Court DENIES Motion (#6) to Dismiss 

14 - OPINION AND ORDER

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Amended Complaint.

Case Management Directions: Defendant must file its Answer

to Plaintiff’s Amended Complaint no later than July 10, 2015. 

The parties must confer concerning a case-management schedule and

submit no later than July 17, 2015, a JOINT STATUS REPORT

outlining a schedule they propose for discovery, motion practice,

and trial and to address any other scheduling matters they

anticipate. The Court will set a Rule 16 conference to discuss

the parties’ proposals after July 17, 2015.

IT IS SO ORDERED.

DATED this 25th day of June, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

15 - OPINION AND ORDER

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