PAGE 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ALANA HOSICK, 

 Plaintiff, 

 v. 

CATALYST IT SERVICES, INC., 

 Defendant. 

Case No. 3:15-cv-01100-SI 

OPINION AND ORDER

Craig A. Crispin and Shelley D. Russell, CRISPIN EMPLOYMENT LAWYERS, 1834 SW 

58th, Suite 200, Portland, OR 97221. Of Attorneys for Plaintiff. 

Amy L. Angel and Tyler J. Volm, BARRAN LIEBMAN, LLP, 601 S.W. Second Avenue, Suite 

2300, Portland, OR 97204. Of Attorneys for Defendant. 

Michael H. Simon, District Judge. 

Plaintiff (“Hosick”) brings a claim for unpaid minimum wages under the Fair Labor 

Standards Act (“FLSA”), 29 U.S.C. § 206, and a claim for unpaid wages, compensation, and 

related penalties and damages under Oregon Revised Statutes Chapters 652 and 653. Hosick 

alleges that Defendant Catalyst IT Services, Inc. (“Catalyst”) hired her in March 2012 and 

required her to complete a training and internship program prior to assigning her client projects. 

According to Hosick, Catalyst unlawfully failed to pay her for the approximately 12-week 

Case 3:15-cv-01100-SI Document 19 Filed 11/05/15 Page 1 of 14
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training period. Based on the terms of a Training Agreement that Hosick signed, Catalyst moves 

to dismiss Hosick’s claims for improper venue under Federal Rule of Civil Procedure l2(b)(3) or, 

in the alternative, to transfer this action to the United States District Court for the District of 

Maryland under 28 U.S.C. § 1404. Dkt. 5. For the reasons that follow, the Court denies the 

motion to dismiss and grants the motion to transfer venue. 

STANDARDS 

In a Rule 12(b)(3) motion, “[a] defendant over whom personal jurisdiction exists but for 

whom venue is improper may move for dismissal or transfer under 28 U.S.C. § 1406(a).” Action 

Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1175, 1181 (9th Cir. 2004). 28 U.S.C. 

§ 1406(a) provides, “The district court of a district in which is filed a case laying venue in the 

wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to 

any district or division in which it could have been brought.” The U.S. Supreme Court has 

recently ruled that “a forum-selection clause does not render venue in a court ‘wrong’ or 

improper’ within the meaning of § 1406(a) or Rule 12(b)(3)” and that § 1404(a) provides the 

proper mechanism for the enforcement of such a clause. Atl. Marine Const. Co., Inc. v. U.S. Dist. 

Court for W. Dist. of Tex., ––– U.S. ––––, 134 S.Ct. 568, 579 (2013). 

On a motion to transfer venue under 28 U.S.C. §1404(a), a court may transfer any civil 

action “[f]or the convenience of the parties and witnesses, in the interests of justice.” 28 U.S.C. 

§ 1404(a). The forum to which transfer of venue is sought must be a district court where the case 

“might have been brought.” Id. Under § 1404(a), the district court has discretion “to adjudicate 

motions for transfer according to an individualized, case-by-case consideration of convenience 

and fairness.” Steward Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (internal quotation 

marks and citation omitted); see Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th 

Cir. 2000). 

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The ordinary analysis of a motion to transfer venue under § 1404(a) changes when the 

parties have formed a contract that includes a valid forum-selection clause. Atl. Marine, 134 

S. Ct. at 581. A court must give a forum-selection clause “controlling weight in all but the most 

exceptional cases.” Id. at 579 (internal citation and quotation marks omitted). Plaintiff bears the 

burden of showing the exceptional circumstances that make transfer inappropriate. Id. at 581. In 

evaluating whether the plaintiff has established that transfer is inappropriate, a court should 

refrain from “unnecessarily disrupt[ing] the parties’ settled expectations” when the parties have 

agreed “in advance to litigate disputes in a particular forum.” Id. at 583. 

BACKGROUND 

Hosick earned her Bachelor of Science degree in computer science from the University of 

Mississippi in 2003. After graduation, she taught English, math, and science in Taiwan and 

Korea. She also spent three years teaching computer science in Kuwait. In March 2012, she 

began attending Catalyst’s training program at its offices in Beaverton, Oregon. The program 

was designed to teach information technology skills. 

Catalyst is incorporated in Delaware and has its principle place of business in Baltimore, 

Maryland. The company has two offices, one in Maryland and one in Oregon. Oregon has 

authorized Catalyst to transact business in the state. 

When Hosick began Catalyst’s training program, Hosick signed a Training Agreement. 

The Training Agreement was one-page long and consisted of three sections. In Section One, the 

Training Agreement specified that Hosick was “not an employee of Catalyst” but that “[i]f, in 

Catalyst’s judgment, [Hosick] successfully complete[d] the Program, Catalyst will hire [Hosick] 

in a full-time job with health benefits that will pay a wage of at least $15.00 per hour.” Section 

Two stated that the training services were valued at $25,000, which Hosick would need to repay 

Case 3:15-cv-01100-SI Document 19 Filed 11/05/15 Page 3 of 14
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Catalyst if, after the date the company hired her, Hosick did not continue working for Catalyst 

for two years. Section Three provided: 

This Agreement shall be construed in accordance with the laws of 

the State of Maryland without reference to choice of law 

provisions. Each party agrees that if it brings suit in a dispute 

arising from this Agreement it will do so in the state courts of 

Maryland or the U.S. District Court for the District of Maryland. 

Above the signature line, the Agreement stated: “I have had an opportunity to review this 

Agreement, understand it and sign it willingly.” 

According to Andrew Coomes, a trainee who attended the program with Hosick, a 

Catalyst employee briefly explained the terms of the Training Agreement on the first day of the 

program. Mr. Coomes spoke with a Catalyst employee about questions Mr. Coomes had relating 

to the Training Agreement. Mr. Coomes believes that he signed and returned the Training 

Agreement during the second or third week of the program. Peter Lee, General Counsel and Vice 

President of Catalyst, also asserts that training program participants are not required immediately 

to execute the Training Agreement and may review the agreement through the first two weeks of 

the program. Trainees may also leave the program before or after executing the Training 

Agreement. 

 Hosick completed the 12-week training with Catalyst. The training involved attending 

sessions from 9:00 a.m. to 5:00 p.m. every week-day. Hosick did not receive a degree, certificate 

of completion, or higher education credit upon completion of the program, but Catalyst promoted 

her to “employee” and began paying her $15.00 per hour. Hosick now alleges that Catalyst 

violated federal and Oregon law by failing to pay her a minimum wage while she attended the 

training program. She asserts that she is entitled to unpaid wages of approximately $2,900 and 

additional penalties, damages, and attorney’s fees. 

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PAGE 5 – OPINION AND ORDER 

DISCUSSION 

A. Motion to Dismiss for Improper Venue 

According to Catalyst, the Court is an improper venue for Hosick’s claims based on the 

forum-selection clause in the Training Agreement. Venue is proper “so long as the requirements 

of § 1391(b) are met, irrespective of any forum-selection clause.” Atl. Marine, 134 S. Ct. at 578. 

28 U.S.C § 1391(b) provides, “A civil action may be brought in—(1) a judicial district in which 

any defendant resides, if all defendants are residents of the State in which the district is located.” 

A defendant entity resides “in any judicial district in which such defendant is subject to the 

court’s personal jurisdiction with respect to the civil action in question.” Id. § 1391(c)(2). After a 

trial court finds that the venue meets the requirements of § 1391(b), the court must “assess[] the 

effect of the forum selection clause only under Section 1404(a).” Fine v. Cambridge Int’l Sys., 

Inc., 584 F. App’x 695, 696 (9th Cir. 2014) (emphasis added). 

Catalyst does not dispute that it is subject to the Court’s personal jurisdiction. Catalyst 

opened an office in Oregon, trained employees in Oregon, and obtained authorization to transact 

business in Oregon. The District of Oregon is thus a proper venue under § 1391(b). Accordingly, 

§ 1404(a)—rather than Rule 12(b)(3) or § 1406(a) —is the proper mechanism for evaluating the 

Training Agreement’s forum-selection clause. Catalyst’s motion to dismiss is denied. 

B. Motion to Transfer Venue 

Catalyst also moves, in the alternative, for an order transferring venue to the District of 

Maryland under § 1404(a). Hosick responds that the Court should not enforce the forumselection clause of the Training Agreement because (1) the Training Agreement as a whole is 

procedurally and substantively unconscionable; and (2) transfer to the District of Maryland 

would be inconvenient or unfair based on private-interest and public-interest factors. 

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1. Whether the Training Agreement is Unconscionable 

Hosick argues that the Training Agreement is procedurally and substantively 

unconscionable under both Oregon and Maryland law. The Court notes that if Hosick sought to 

escape the forum-selection clause on the grounds of fraud or overreaching, she would be 

required to show that the inclusion of the clause itself in the contract was improper; it would be 

insufficient to attack the agreement as a whole. See Richards v. Lloyd’s of London, 135 F.3d 

1289, 1297 (9th Cir. 1998) (noting “that simply alleging that one was duped into signing the 

contract is not enough. . . . For a party to escape a forum selection clause on the grounds of 

fraud, it must show that ‘the inclusion of that clause in the contract was the product of fraud or 

coercion.’”) (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n.14 (1974)); LaCross v. 

Knight Transp., Inc., 95 F. Supp. 3d 1199, 1204 (C.D. Cal. 2015) (rejecting plaintiff’s 

contentions that a forum-selection clause was the product of fraud and overreaching because the 

arguments went “to the contract as a whole”). 

Additionally, when a federal court considers whether a forum-selection clause is itself 

unconscionable, the court must apply federal law. See Manetti-Farrow, Inc. v. Gucci Am., Inc., 

858 F.2d 509, 513 (9th Cir. 1988) (“[B]ecause 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.”). The Court is not aware, however, of a Ninth Circuit case addressing 

whether a federal court may consider unconscionability of a contract as a whole under state law 

when the contract contains a forum-selection clause. In the absence of controlling precedent, the 

Court entertains Hosick’s argument that the Training Agreement as a whole is unconscionable 

under Oregon and Maryland law.1

 

 1

 Because Hosick argues that Oregon and Maryland law yield the same result, the Court 

declines to decide which state’s law applies to the unconscionability analysis. 

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a. Procedural Unconscionability under Oregon and Maryland Law 

Hosick argues that the Training Agreement is procedurally unconscionable under either 

Oregon or Maryland law. Oregon courts assess unconscionability at the time of contract 

formation. Bagley v. Mt. Bachelor, Inc., 356 Or. 543, 555 (2014). Procedural unconscionability 

focuses on “oppression and surprise. . . . Oppression exists when there is inequality in bargaining 

power between the parties, resulting in no real opportunity to negotiate the terms of the contract 

and the absence of meaningful choice.” Id. Surprise exists where one party hides or obscures 

contract terms from the other party. “[T]he hallmarks of surprise” include ambiguous wording 

and fine print. Id. 

Maryland courts similarly assess unconscionability at the time of contract formation. 

State Highway Admin. v. Greiner Eng’g Scis., Inc., 83 Md. App. 621, 641 (1990). An agreement 

may be unconscionable based on “one party’s lack of meaningful choice.” Falls v. 1CI, Inc., 208 

Md. App. 643, 664 (2012). Procedural unconscionability incudes “deception or a refusal to 

bargain over contract terms.” Id. (quoting 8 Richard A. Lord, Williston on Contracts § 18:10 (4th 

ed. 1998)). 

According to Hosick, the Training Agreement is procedurally unconscionable because 

she had no bargaining power or meaningful choice whether to sign the agreement. She asserts 

that Catalyst presented her with a contract on a take-it-or-leave-it basis and failed to explain the 

contract terms to her. Hosick further asserts that she had no opportunity to negotiate contract 

terms or consult with counsel and that she would have forfeited the job if she had not signed the 

contract. 

Hosick’s assertions fall short of establishing procedural unconscionability in light of the 

circumstance of the contract’s formation. Catalyst presented Hosick, a well-educated 

professional, with a one-page contract. The contract contained three short, simply-worded 

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PAGE 8 – OPINION AND ORDER 

sections. The contract also included a statement that the signee had an opportunity to review the 

Training Agreement, understood it, and signed it willingly. Catalyst presents evidence that 

another trainee, Mr. Coomes, had an opportunity to ask questions about the Training Agreement 

and take the agreement home to review and discuss with whomever Mr. Coomes wanted. Hosick 

does not present evidence that Catalyst singled her out for different treatment and prevented her 

from consulting with counsel concerning the Training Agreement’s terms. Moreover, Hosick 

does not present evidence that she had an obligation to go forward with the training program 

after she received a copy of the Training Agreement on the first day. Under these circumstances, 

the Training Agreement was not procedurally unconscionable under Oregon or Maryland law. 

b. Substantive Unconscionability under Oregon and Maryland Law 

In Oregon, substantive unconscionability focuses not on the circumstances of contract 

formation but on “whether the substantive terms contravene the public interest or public policy.” 

Bagley, 356 Or. at 555. Such terms “unfairly favor the party with greater bargaining power.” 

Livingston v. Metro. Pediatrics, LLC, 234 Or. App. 137, 151 (2010). Similarly, in Maryland, 

“[s]ubstantive unconscionability involves those one-sided terms of a contract from which a party 

seeks relief (for instance, ‘I have the right to cut off one of your child’s fingers for each day you 

are in default’).” Falls, 208 Md. App. at 664-65 (quoting Carlson v. General Motors Corp., 883 

F.2d 287, 296 n.12 (4th Cir.1989)). A substantively unconscionable contract includes “terms that 

are unreasonably or grossly favorable to one side and to which the disfavored party does not 

assent.” Walther v. Sovereign Bank, 386 Md. 412, 427 (2005) (internal quotation marks omitted). 

Hosick argues that the Training Agreement is substantively unconscionable for three 

reasons: (1) the substantive terms contravene Oregon and Maryland’s wage payment 

laws; (2) the choice-of-law clause operates to prevent the enforcement of any state wage laws 

against Catalyst; and (3) the forum-selection clause renders litigation unaffordable for Hosick. 

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Catalyst replies that Hosick was not an employee during the training program and thus failure to 

pay her wages does not contravene any public policy. 

For the purposes of this motion, the Court need not decide whether Hosick was an 

“employee” under Oregon or Maryland law. The Court simply analyzes whether the language of 

the Training Agreement’s terms unfairly favored Catalyst in violation of Oregon’s or Maryland’s 

public policy. The Training Agreement states that Hosick was not an “employee” during the 

training. The Training Agreement did not offer Hosick an hourly wage for her time spent in 

training, although the Training Agreement purported to provide Hosick with training services 

valued at $25,000 in return for her time. According to Catalyst, if Hosick was not an employee, 

neither Oregon nor Maryland law required Catalyst to pay Hosick a minimum wage. See Md. 

Code Lab. & Empl. § 3-413; Or. Rev. Stat. § 653.025. The agreement’s terms do not, on their 

face, contravene the public policy of Oregon or Maryland. 

Hosick also argues that Maryland wage laws apply only to work performed in Maryland. 

According to Hosick, requiring Hosick’s claims to be filed in Maryland under Maryland law thus 

operates to deprive Hosick of any of her wage claims. This result would conflict, argues Hosick, 

with Oregon’s fundamental policy of protecting Oregon workers. See Konecranes, Inc. v. Scott 

Sinclair, 340 F. Supp. 2d 1126, 1130 (D. Or. 2004). Although the Training Agreement purports 

to require the application of Maryland law “without reference to choice of law provisions,” 

Maryland recognizes that “a choice of law provision may be set aside where . . . 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.” 

Three M Enterprises, Inc. v. Tex. D.A.R. Enterprises, Inc., 368 F. Supp. 2d 450, 457 

(D. Md. 2005) (citation and emphasis omitted). Maryland courts have exercised this discretion to 

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set choice-of-law provisions aside. See, e.g., id. at 458-59 (holding that a Texas choice-of-law 

provision in a franchise agreement was contrary to Maryland public policy); Nat’l Glass, Inc. v. 

J.C. Penney Properties, Inc., 336 Md. 606, 615, (1994) (invalidating a contractual provision 

requiring application of Pennsylvania law where Pennsylvania law would violate a fundamental 

policy of Maryland). The District of Maryland is free to decide whether application of the 

choice-of-law clause conflicts with Oregon’s fundamental policy. The choice-of-law clause thus 

does not render the Training Agreement substantively unconscionable. 

Finally, Hosick argues that it would be unreasonably costly for her to hire counsel in 

Maryland, spend the necessary time traveling to Maryland, and otherwise litigate her case in 

Maryland. This argument goes to the interpretation and application of the forum-selection clause 

rather than the substantive unconscionability of the Training Agreement as a whole, and thus 

federal law applies. Manetti–Farrow, 858 F.2d at 513. As discussed below, where the parties 

have agreed to a forum-selection clause, the parties “waive the right to challenge the preselected 

forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of 

the litigation.” Atl. Marine, 134 S. Ct. at 582. When a party has an opportunity to read a clearly 

identified and intelligible forum-selection clause before accepting a contract, the party has notice 

of the clause. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 586 (1991). The third and 

last paragraph of the Training Agreement contains the forum-selection clause in a readable and 

clearly-identifiable format. Hosick had the chance to review the clause and, after having had that 

chance, signed the agreement. Hosick had notice of the clause, agreed to the clause, and waived 

her right now to challenge the clause on the basis of inconvenience. 

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2. Whether Public Interest Factors Render the Forum-Selection Clause 

Unenforceable 

The Ninth Circuit has held that in federal court, federal law controls the question whether 

a forum-selection clause is enforceable. Manetti–Farrow, 858 F.2d at 513. In Atlantic Marine, 

the U.S. Supreme Court clarified the factors that a district court may consider when evaluating 

the enforceability of a valid forum-selection clause. 134 S. Ct. at 582-83. In the presence of a 

valid forum-selection clause, “the plaintiff’s choice of forum merits no weight.” Id. at 582. 

Additionally, the court “should not consider arguments about the parties’ private interests. . . . A 

court accordingly must deem the private interest factors [including inconvenience to the parties] 

to weigh entirely in favor of the preselected forum.” Id. The district court may only consider 

arguments concerning public-interest factors, which “will rarely defeat a transfer motion.” Id.

The Court thus considers only the public-interest factors presented by Hosick. 

Public-interest factors “include administrative difficulties flowing from court congestion; 

imposition of jury duty on the people of a community unrelated to the litigation; the local interest 

in resolving the controversy at home; the interest in having a diversity case tried in a forum 

familiar with the law that governs the action; and the avoidance of unnecessary conflicts of law 

problems.” Gemini Capital Grp., Inc. v. Yap Fishing Corp., 150 F.3d 1088, 1094 (9th Cir. 1998). 

Hosick concedes that administrative difficulties do not weigh against transferring venue. She 

argues, however, that the remaining factors weigh in favor of keeping her claims in Oregon. In 

order to defeat Catalyst’s motion to transfer to the parties’ contracted-for venue, these factors 

must establish that “extraordinary circumstances unrelated to the convenience of the parties 

clearly disfavor a transfer.” Atl. Marine, 134 S.Ct. at 575. According to the U.S. Supreme Court, 

“In all but the most unusual cases . . . , ‘the interest of justice’ is served by holding parties to 

their bargain.” Id. at 583. 

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a. Imposition of Jury Duty on the People of a Community Unrelated to the 

Litigation 

Hosick argues that Oregon jurors have a much greater interest than Maryland jurors in the 

litigation of claims involving Oregon employers. Catalyst also maintains a Maryland office and 

has its principle place of business in Maryland. Maryland jurors, like Oregon jurors, thus have an 

interest in determining whether Catalyst’s Training Agreement violates federal and state wage 

laws. This factor does not determinatively weigh in favor of either denying or granting Catalyst’s 

motion to transfer venue. 

b. Local Interest in Resolving the Controversy at Home 

Hosick next argues that Oregon has a far greater interest at stake than Maryland 

because (1) the parties entered the agreement in Oregon; (2) the parties negotiated the agreement 

in Oregon; (3) Hosick performed work and received training pursuant to the agreement in 

Oregon; (4) Hosick resides in Oregon; and (5) Catalyst has its West Coast operation in Oregon. 

Hosick also contends that all or nearly all of the witnesses to the agreement are located in 

Oregon. She concedes that higher-level corporate managers may be located outside of Oregon. 

The U.S. Supreme Court has held that this factor weighs in favor of maintaining claims in 

the location of the relevant incident and the residence of potential plaintiffs. Piper Aircraft Co. v. 

Reyno, 454 U.S. 235, 260 (1981). Here, as Hosick has emphasized, the relevant work and 

training occurred in Oregon. Hosick also resides in Oregon. Accordingly, the Court weighs this 

factor in favor of denying Catalyst’s motion to transfer venue. 

c. Familiarity with Governing Law and Conflict of Law Issues 

Hosick argues that the Court should not be swayed by the District of Maryland’s 

potentially greater familiarity with Maryland law or interest in enforcing the Maryland choice-oflaw clause. Hosick also argues that if Oregon law applies, this Court would have more 

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experience in enforcing Oregon wage laws than a Maryland court. This Court’s familiarity with 

Oregon wage laws, argues Hosick, weighs in favor of maintaining the action in Oregon.2

Parties routinely call on federal courts to apply the law of other jurisdictions, and courts 

do not consider the task to be overly burdensome. See Atl. Marine, 134 S. Ct. at 584 (“[F]ederal 

judges routinely apply the law of a State other than the State in which they sit.”); Tschudy v. J.C. 

Penney Corp., 2012 WL 1466514, at *2 (S.D. Cal. Apr. 27, 2012) (noting “that federal judges 

frequently examine the laws of other states without great moment or angst”); In re Disaster at 

Riyadh Airport, Saudi Arabia, on Aug. 19, 1980, 540 F. Supp. 1141, 1153 (D.D.C. 1982) 

(“Federal courts are experienced in applying foreign law and should not be reluctant to do so.”). 

Neither Hosick nor Catalyst argues that the relevant substantive law of Oregon and Maryland is 

so arcane that local courts would be at a great advantage when applying their own state law. The 

Court thus finds that these factors do not weigh in favor of or against denying Catalyst’s motion 

to transfer venue. 

 To summarize, the Court finds that the local interest in resolving the controversy at home 

weighs in favor of maintaining the action in Oregon; the other factors are neutral. Given that 

only one factor weighs against granting the motion to transfer venue, Hosick has not met her 

“burden of showing that public-interest factors overwhelmingly disfavor a transfer.” Atl. Marine, 

134 S. Ct. at 583. 

CONCLUSION 

Catalyst’s Motion to Dismiss (Dkt. 5) is DENIED. Catalyst’s Motion to Transfer Venue 

pursuant to 28 U.S.C. §1404(a) (Dkt 5) is GRANTED. The Clerk of the Court is directed to 

 2

 The Court notes that a Maryland court would not be required to apply the choice-of-law 

rules of Oregon, the original venue. The U.S. Supreme Court “reject[ed] the rule that the law of 

the court in which the plaintiff inappropriately filed suit should follow the case to the forum 

contractually selected by the parties.” Atl. Marine, 134 S. Ct. at 583. 

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transfer this action to the United States District Court for the District of Maryland and to send a 

copy of this Opinion and Order to that court. 

IT IS SO ORDERED. 

DATED this 5th day of November, 2015. 

 /s/ Michael H. Simon 

Michael H. Simon 

 United States District Judge 

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