UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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GUY CARPENTER & COMPANY, LLC and MARSH &

McLENNAN COMPANIES, INC., 

Plaintiffs, 

-vJULIAN SAMENGO-TURNER, RON WHYTE, and 

MARCUS HOPKINS, 

Defendants. 

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07 Civ. 3580 (DLC) 

OPINION AND ORDER

Appearances: 

For the Plaintiffs: 

Barry H. Berke 

Robert N. Holtzman 

Steven M. Knecht 

Kramer Levin Naftalis & Frankel LLP 

1177 Avenue of the Americas 

New York, New York 10036 

For the Defendants: 

John P. Barry 

Mark A. Saloman 

Proskauer Rose LLP 

One Newark Center, 18th Floor 

Newark, New Jersey 07102 

DENISE COTE, District Judge: 

One of three defendants in this action brings a motion to 

dismiss, asserting lack of personal jurisdiction over him and the 

doctrine forum non conveniens. This breach of contract action 

stems from an agreement that contains a forum selection clause 

granting exclusive jurisdiction to New York courts. That clause 

being unambiguous and enforceable, the motion is denied. 

Case 1:07-cv-03580-DLC Document 39 Filed 06/29/2007 Page 1 of 8
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BACKGROUND 

Defendants Julian Samengo-Turner, Ron Whyte and Marcus 

Hopkins, each of them British citizens and residents, have been 

employed by Marsh Services Limited (“Marsh”), a United Kingdom 

company, since 1991, 1988 and 2000, respectively. They provided 

services to plaintiff Guy Carpenter & Company, LLC (“Guy 

Carpenter”) in the field of facultative reinsurance. Guy 

Carpenter is an indirect wholly owned subsidiary of plaintiff 

Marsh & McLennan Companies, Inc. (“MMC”), which is also the 

ultimate parent of Marsh. The plaintiffs’ principal place of 

business is in New York. 

MMC offers incentive compensation plans to certain persons 

employed by MMC and its affiliates, including the MMC 2000 Senior 

Executive Incentive and Stock Award Plan (“Plan”). Effective 

November 1, 2005, MMC made long term incentive grants under the 

Plan to each of the defendants. In connection with those awards, 

the defendants agreed in writing to abide by the terms of the 

Plan, as well as additional terms contained in an agreement 

(“Agreement”). 

Pursuant to the Agreement, each defendant is required to 

cooperate with the “Company,” which is defined as “MCC or any of 

its subsidiaries or affiliates,” including Guy Carpenter, and to 

provide the Company “such information relating to your work for 

the Company or your other commercial activities as the Company 

Case 1:07-cv-03580-DLC Document 39 Filed 06/29/2007 Page 2 of 8
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may from time to time reasonably request in order for the Company 

to determine whether you are in compliance with your obligations 

under this Agreement.” These obligations include a prohibition 

on soliciting employees to leave MMC or Guy Carpenter and work 

for a competitor. If the non-solicitation provision is breached 

within a twelve month period following the vesting of any portion 

of awards under the Plan, this constitutes “Detrimental 

Activity,” giving the plaintiffs the right to rescind vested 

portions of awards made under the Plan. 

Each of the Agreements with the defendants contains the 

following forum selection clause, section VI.N: 

The Company and you irrevocably submit to the exclusive 

jurisdiction and venue of any state or federal court 

located in the County of New York for the resolution of 

any dispute over any matter arising from or related to 

the Award. . . . Moreover, both you and the Company (i) 

acknowledge that the forum stated in this Section VI.N

has a reasonable relation to this Award and to the 

relationship between you and the Company and that the 

submission to the forum will apply, (ii) waive, to the 

extent permitted by law, any objection to personal 

jurisdiction or to the laying of venue of any action or 

proceeding covered by this Section VI.N in the forum 

stated in this Section VI.N, (iii) agree not to 

commence any such action or proceeding in any forum 

other than the forum stated in this Section VI.N . . . 

. 

(Emphasis supplied.) A choice of law provision identifies New 

York law as the governing law. It states that “Notwithstanding 

anything to the contrary (except with regard to Schedule II.D, if 

applicable), this Agreement shall be governed by the laws of the 

Case 1:07-cv-03580-DLC Document 39 Filed 06/29/2007 Page 3 of 8
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State of New York, without regard to conflicts or choice of law 

rules or principles.” 

Schedule II.D, which applies to individuals whose employment 

with the Company terminates at a time when their principle place 

of employment is the United Kingdom and contains their nonsolicitation provision, has its own choice-of-law and forum 

selection clause (albeit a non-exclusive clause) for matters 

covered within the Schedule. It reads: “This Schedule will be 

construed in accordance with English Law and the parties 

irrevocably submit to the non-exclusive jurisdiction of the 

English Courts to settle any disputes as may arise in connection 

with this Schedule. The remainder of this Agreement will 

continue to be governed by the laws of the state of New York.” 

(Emphasis supplied.) 

On April 3, 2007, the defendants gave notices of resignation 

to join Integro, a competitor of plaintiffs whose principal place 

of business is in this city. The plaintiffs promptly filed suit 

in this court and requested expedited discovery. At a conference 

of May 18, at which the Agreement was construed after hearing 

argument from counsel for Whyte and plaintiffs, expedited 

discovery was ordered and the schedule was set for this motion, 

which was anticipated to be based at least on a forum non 

conveniens argument. 

Case 1:07-cv-03580-DLC Document 39 Filed 06/29/2007 Page 4 of 8
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DISCUSSION 

Whyte has moved to dismiss this action on the ground that 

there is no personal jurisdiction over him and on the doctrine of 

forum non conveniens. He does not dispute that his motion must 

be denied in the event that the Agreement=s New York forum 

selection clause is enforceable against him. 1 He argues only 

that the existence of the non-exclusive forum selection clause in 

Schedule II.D creates an ambiguity which renders the forum 

selection clause in the body of the Agreement unenforceable. 

Whyte is wrong. 

 

1

 Even if Whyte had argued that the court lacks personal 

jurisdiction over him or should grant his forum non conveniens

motion despite an applicable forum selection clause, such 

argument would fail. Parties can consent to personal 

jurisdiction by means of a forum selection clause, and forum 

selection clauses are routinely enforced where (1) the clause was 

“reasonably communicated to the parties” and (2) the clause was 

not “obtained through fraud or overreaching,” and (3) there has 

been no clear showing that “enforcement would be unreasonable and 

unjust.” D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 103 

(2d Cir. 2006) (citation omitted). Whyte has not even attempted 

to make the first two of these showings. To the extent that 

Whyte intends to make an additional argument that the Agreement=s 

exclusive forum selection clause is unenforceable because it is 

unjust, this passing reference in his reply is rejected because 

it is made for the first time in the reply. In any event, it 

would be denied on the merits. 

Additionally, as was held in a case cited by Whyte himself, a 

valid forum selection clause “counsels strongly against a court’s 

dismissal of an action on forum non conveniens grounds.” Sun 

Forest Corp. v. Shvili, 152 F.Supp. 2d 367, 386 (S.D.N.Y. 2001) 

(citation omitted). Considering the steps in the forum non 

conveniens analysis, as described in Iragorri v. United Techs. 

Corp., 274 F.3d 65, 72-76 (2d Cir. 2001), the Court would not 

exercise its discretion to decline jurisdiction over this case. 

Case 1:07-cv-03580-DLC Document 39 Filed 06/29/2007 Page 5 of 8
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Under New York law, the interpretation of an unambiguous 

contract is a question of law for a court to decide. Revson v. 

Cinque & Cinque, P.C., 221 F.3d 59, 66 (2d Cir. 2000). Whyte 

contends that the following provision within Schedule II.D 

creates an ambiguity between the two forum selection provisions, 

which has the effect of rendering the exclusive forum selection 

clause in the body of the Agreement unenforceable: “Following 

the termination of your employment,2 the definition of 

Detrimental Activity set out in this Schedule and the provisions 

of the Schedule shall apply in place of the definition given in 

the main body of this Agreement in Section I.C(1) (Cancellation 

and Rescission of Award)3 and any other contrary provisions of 

the Agreement.” (Emphasis in original.) 

This provision in Schedule II.D does not create an ambiguity 

that affects the exclusive jurisdiction of New York courts over 

this dispute. Whatever else this lawsuit is about, it certainly 

concerns enforcement of provisions contained within the body of 

the Agreement, including the duty to cooperate with MMC and Guy 

Carpenter in their investigation of compliance with the 

 

2

While the plaintiffs would appear to be entitled to rely on the 

argument that the forum selection clause in Schedule II.D is not 

even applicable until the termination of the defendants=

employment, which has not yet occurred, they do not rest on that 

argument here. 

3 These provisions include definitions of Detrimental Activity 

and Rescission Period. 

Case 1:07-cv-03580-DLC Document 39 Filed 06/29/2007 Page 6 of 8
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commitments made in return for defendants’ receipt of the awards 

issued under the Plan. As a result, the clear and unambiguous 

meaning of the Agreement is that New York provides the exclusive 

forum for that litigation. The forum selection clause in 

Schedule II.D does not apply to that issue, and is in any event 

non-exclusive. 

The authorities on which Whyte relies, only one of which is 

a published federal court opinion, do not suggest a different 

analysis. See Zamer v. Diliddo, No. 97-CV-32S(H), 1997 WL 

579752, at *1-3 (W.D.N.Y. Aug. 18, 1997) (M.J.). In any event, 

each of these decisions was rendered before the Second Circuit 

explained that the interpretation of forum selection clauses is 

generally a matter of law for the court, even when competing 

clauses are contained in two separate contracts. 

Where, as here, the two sides have put forth different 

contracts, each containing a forum selection clause 

designating a different forum, and the parties do not 

dispute the facts which gave rise to those two 

conflicting contracts, the court must decide as a 

matter of law on the agreed facts which forum selection 

clause governs. Once the parties agree on the facts, 

the issue is no longer one of burden of proof, the 

issue is one of law which the court must decide. 

Asoma Corp. v. SK Shipping Co., Ltd., 467 F.3d 817, 822-23 (2d 

Cir. 2006). 

 

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