Kaechele v . Nova Infor. System CV-00-313-JD 12/22/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Cynthia Hall Kaechele
and Christopher Kaechele
v. Civil N o . 00-313-JD
Opinion N o . 2000 DNH 266
Nova Information Systems, Inc.
O R D E R
The plaintiffs, Cynthia Hall Kaechele and Christopher
Kaechele, bring suit against their former employer, Nova
Information Systems, Inc., in which they allege nine claims
arising from their employment at Nova. Nova moves to dismiss
Count V , for fraud; Count VIII, for relief under N.H. RSA § 339-
E ; and Count IX, seeking a declaratory judgment as to the
enforceability of their noncompete agreement. The parties have
filed a stipulation of dismissal of Count VIII, and that claim is
therefore dismissed. In addition, the plaintiffs have amended
their complaint, and in particular, they have added allegations
in support of their fraud claim. Since Nova’s motion challenges
the pre-amendment version of the fraud claim, the motion is
denied as to that claim. The court addresses the only remaining
portion of Nova’s motion, to dismiss Count I X , the declaratory
judgment claim.
Discussion
Because Nova has filed its answer, the motion to dismiss is
more properly considered as a motion for judgment on the
pleadings. “After the pleadings are closed but within such time
as not to delay the trial, any party may move for judgment on the
pleadings.” Fed. R. Civ. P. 12(c). When considering a motion
for judgment on the pleadings, the “court must accept all of the
nonmoving part[ies’] well-pleaded factual averments as true and
draw all reasonable inferences in [their] favor.” Feliciano v .
Rhode Island, 160 F.3d 780, 788 (1st Cir. 1998). Judgment on the
pleadings is not appropriate “‘unless it appears beyond doubt
that the plaintiff[s] can prove no set of facts in support of
[their] claim which would entitle [them] to relief.’” Santiago
de Castro v . Morales Medina,
943 F.2d 129, 130 (1st Cir. 1991)
(quoting Rivera-Gomez v . de Castro,
843 F.2d 631, 635 (1st Cir.
1988)).
In Count IX, the plaintiffs seek a declaratory judgment that
the provisions of the parties’ noncompete agreement are null,
void, and unenforceable. Nova contends that the plaintiffs’
declaratory judgment claim should be dismissed due to improper
venue. Nova relies on the choice-of-law and forum selection
clause in the employment agreement that provides as follows:
5. The terms of this Agreement shall be governed by
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and construed in accordance with the laws of the State
of Georgia (excluding conflicts of law rules).
Employee agrees that in the event he or she breaches or
threatens to breach this Agreement, he or she will
submit to jurisdiction in the state or federal courts
located in Fulton County, Atlanta, Georgia.1
The plaintiffs respond that the clause does not apply to their
declaratory judgment claim, or alternatively, that if applicable,
the clause should not be enforced.
For purposes of this motion, the court will assume that a
claim may be dismissed for lack of venue based on a forum
selection clause. See Lambert v . Kysar, 983 F.2d 1110, 1112 n.1
(1st Cir. 1993); Arguss Communications Group, Inc. v . Teletron,
Inc.,
2000 WL 36936, *6 (D.N.H. Nov. 1 9 , 1999). It is unresolved
in the First Circuit whether a forum selection clause is to be
construed as a procedural issue, pursuant to federal law, or as a
substantive issue, pursuant to state law. See Lambert,
983 F.2d
at 1116 n.10. The parties have not addressed the choice-of-law
issue. However, because the relevant law does not appear to be
in conflict, a choice is not necessary. See
id. at 1116.
Under both federal common law and Georgia state law, forum
1
Although consideration of materials extrinsic to the
complaint would in some circumstances require converting the
motion to one for summary judgment, a contract that is integral
to the complaint may be considered without implicating
conversion. See Watterson v . Page, 987 F.2d 1 , 3-4 (1st Cir.
1993).
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selection clauses are presumed to be valid unless they are shown
to be unreasonable or invalid. See Lambert, 983 F.2d at 1119;
Iero v . Mohawk Finishing Prods., Inc.,
534 S.E.2d 136, 137-38
(Ga. C t . App. 2000). Federal courts distinguish between
“mandatory” and “permissive” forum selection clauses. See, e.g.,
Snapper, Inc. v . Redan,
171 F.3d 1249, 1262 n.24 (11th Cir.
1999); Excell, Inc. v . Sterling Boiler & Mechanical, Inc.,
106
F.3d 318, 321 (10th Cir. 1997). Although Georgia state courts
have not explicitly used the “mandatory” and “permissive”
analysis, Georgia law has been deemed to be consonant with that
analysis. See Snapper,
171 F.3d at 1262 n.24; AmerMed Corp. v .
Disetronic Holding AG,
6 F. Supp. 2d 1371, 1375 (N.D. G a . 1998).
“To be mandatory, a clause must contain language that
clearly designates a forum as the exclusive one.” Northern Cal.
Dist. Council of Laborers v . Pittsburg-DesMoines Steel Co., 69
F.3d 1034, 1036 (9th Cir. 1995). In contrast, a clause that only
provides the parties’ consent to jurisdiction in a particular
venue is permissive, and does not provide the exclusive forum.
See id.; see also Snapper,
171 F.3d at 1262 n.24; Excell,
106
F.3d at 321. Any ambiguity in the language is generally
construed in favor of permissiveness. See Weiss v . La Suisse,
69
F. Supp. 2d 449, 455 (S.D.N.Y. 1999).
The clause used in the employment agreement at issue here is
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permissive. The employee agrees that in the event of his or her
breach, he or she will submit to jurisdiction in the designated
forum. The clause contains no mandatory or exclusive language.
Therefore, the clause permits suit in other fora, such as the
District of New Hampshire, and does not support Nova’s motion to
dismiss Count IX.
Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document n o . 6 ) is granted as to Count VIII, in accordance with
the parties stipulation (document n o . 8 ) , and is otherwise
denied.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
December 2 2 , 2000
cc: Donald C . Crandlemire, Esquire
Christopher Cole, Esquire
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