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Keenan v. Berger

United States District Court, W.D. Oklahoma

April 12, 2019

ROBERT KEENAN, Plaintiff,
v.
LOUIS BERGER, Defendant.

          ORDER

          DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE

         Plaintiff is an architect specializing in rail transportation infrastructure projects seeking relief from his prior employer, Defendant Louis Berger. Plaintiff was employed in this capacity in Doha, Qatar from November 2016 through February 2017 and alleges that he resigned when Defendant removed him from the project for which he was hired. Plaintiff alleges that Defendant breached the employment contract by failing to support his efforts to lead and direct the project and by failing to provide the necessary support personnel for the project. He further alleges that Defendant made fraudulent misrepresentations to him regarding the staff he would have available to him in Qatar, who were required for successful project completion. Plaintiff also seeks relief on a theory of tortious interference with business relationships and prospective economic advantage premised on his decision to terminate his prior employment to accept the position in Qatar. Before the Court is Defendant's Motion to Dismiss for Forum Non Conveniens (Doc. No. 8), to which Plaintiff filed an objection (Doc. No. 10) and Defendant a reply (Doc. No. 11). The Court ordered the parties to file supplemental briefs, which they have done. (Doc.Nos.14-18). Upon consideration of the parties' submissions, the Court finds as follows.

         Defendant seeks dismissal of this action because the Employment Agreement executed by the parties contains a forum selection clause indicating that Qatar is the only appropriate place for legal action related to this contract. “The doctrine of forum non conveniens permits a court to dismiss a case when an adequate alternative forum exists in a different judicial system and there is no mechanism by which the case may be transferred. See Charles Alan Wright et al., 14D Fed. Prac. & Proc. Juris. § 3828 (4th ed., Nov. 2018 update)” Kelvion, Inc. v. PetroChina Canada Ltd., 918 F.3d 1088, 1091 (10th Cir. 2019). Before the Court considers whether dismissal is appropriate under forum non conveniens, it must first consider the validity of the forum selection clause. See Presidential Hospitality, LLC v. Wyndham Hotel Group, LLC, 333 F.Supp.3d 1179, 1222-23 (D.N.M. 2018)(“When faced with a forum selection clause that covers the dispute, a preliminary question is whether that clause is contractually valid.”)(citing Atlantic Marine Constr. Co. v. United States District Court for the Western Dist. of Texas, 571 U.S. 49, 62, n.5 (2013)); see also Russell v. De Los Suenos, No. 13-CV-2081-BEN (DHB), 2014 WL 1028882, at *6 (S.D. Cal. Mar. 17, 2014)(“[T]his Court finds it appropriate for a court to consider Bremen arguments raised as a separate analysis [because] [t]he forum non conveniens analysis is predicated on the basic assumption that the clause is valid.”). “If the clause controls and points to a state or foreign forum, then the court may apply the doctrine of forum non conveniens.” Kelvion, 918 F.3d at 1091 (citing Atl. Marine Constr. 71 U.S. at 60). Accordingly, the Court considers Plaintiff's contentions that the relevant provision is not valid.

         The parties' agreement provides in Clause 24, “[t]his Agreement shall be governed by the exclusive jurisdiction of the local judicial systems and laws of the Country.” (Doc. No. 8-1). Plaintiff argues that this provision is ambiguous as to where claims must be pursued and further that the language of the clause does not mandate Qatar as the appropriate venue for his action. The Court first considers Plaintiff's contention that it is ambiguous and does not mandate that his claims be pursued in Qatar. The Court has little difficulty rejecting Plaintiff's ambiguity argument. Clause 1 of the Employment Agreement indicates that “Capitalized terms referred to herein are defined in Appendix A.” Clause 1 provides that “employment will commence on the first working day at the location specified in Appendix A.” Appendix A defines “Country” for Clause 1 as Qatar, that is the location of Plaintiff's employment. Although the Appendix does not contain a definition of “Country” for Clause 24, it is apparent to the Court that the agreement contemplates that Qatar is the reference point of Clause 24, and the remainder of the contract. Nothing in the Employment Agreement, which Plaintiff executed in Qatar for work to be performed in Qatar gives any indication that Clause 24 would apply to any other country. Clause 16, which addresses termination, has a reference in both the contract and Appendix to Qatari labor law.

         Article 169 of Law No. (22) of 2004 Regarding Promulgating the Civil Code of Qatar provides that where the wording of a contract is clear, it should not be deviated from in construing the parties' intent.[1] The Court finds the Employment Agreement clear. In its provisions there are no references to countries other than Qatar. Mr. Keenan agreed by contract to behave in a manner consistent with the laws of the Country of Employment, Qatar, and that Qatari labor law governed. (Clause 5) Having found no ambiguity in the terms of the Agreement, as discussed above, the Court therefore relies on Article 169 of Law No. (22) of 2004 and finds that Qatar is the place mandated for consideration of Plaintiff's breach of contract action and the related tort claims. Therefore, the Court declines Plaintiff's request to find Clause 24 ambiguous.[2]

         Plaintiff further argues that Clause 24 does not constitute an agreement to resolve disputes only in Qatar, i.e., that it is not mandatory. Plaintiff argues the provision does not specify venue, and that its reference to “exclusive jurisdiction” does not support the interpretation that any dispute between Plaintiff and his prior employer must be addressed in Qatar. The Court asked the parties to address Qatari law on this point. Defendant presented the affidavit of Franklin Breckenridge, associate legal counsel for Louis Berger, who is stationed in the UAE, who avers he has knowledge of the Qatari legal system. He states that under Qatari law, all employment disputes must be presented to the Qatari Ministry of Labor and asserts the Court should construe Clause 24 as mandatory. Plaintiff did not present the affidavit of any expert on Qatari law, but cited to various provisions of the Qatari labor law. In response to Defendant's assertion that Plaintiff agreed to pursue any disputes in Qatar because he worked for a Qatari company, Plaintiff offers no evidence about his expectations at the time he executed the agreement, nor does he argue he was unaware of the contractual provision. Rather, he notes that Louis Berger is headquartered in New Jersey. The Court finds that the language of Clause 24, and the use of the term “exclusive jurisdiction” supports Defendant's theory that the Qatari judicial forum is mandatory.[3]

         Finally, Plaintiff also contends that Clause 24 does not apply to all of his claims, and therefore dismissal in favor of a proceeding in Qatar would be inappropriate, that is that his claims are not within the scope of the forum selection clause. As noted above, Plaintiff's claims are not limited to breach of the Employment Agreement. He additionally asserts that he was fraudulently induced into accepting the employment in Qatar and that Defendant tortiously interfered with his business relationships and prospective economic advantage because Plaintiff left his prior employment to work for Defendant in Qatar. Although Plaintiff argues that his tort claims are independent of his breach of contract claim, the undersigned disagrees. Notably, all of Plaintiff's claims stem from his decision to execute the contract to work in Qatar and directly arise therefrom. A finding in Plaintiff's favor on his fraudulent inducement claim would implicate the merits of his breach of contract claim, because both would require Plaintiff to establish that he was deprived of the necessary tools and personnel for adequate performance of his duties in Qatar. Similarly, Plaintiff's contention that he resigned his position with his predecessor employer is premised on Defendant's alleged failure to provide him the necessary manpower to properly complete his duties under the contract. This contention is the crux of Plaintiff's breach of contract action. As argued by Defendant, courts do not permit a plaintiff to “evade enforcement of forum selection agreements through artful pleading of [tort] claims in the context of a contractual dispute.” See Lambert v. Kysar, 983 F.2d 1110, 1121 (1st Cir. 1993)(internal quotation marks and citations omitted). In Kelvion the court noted:

The scope of a forum-selection clause is evaluated according to ordinary principles of contractual interpretation. See, e.g., Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d 921, 925 (10th Cir. 2005); K & V Sci. Co. v. BMW, 314 F.3d 494, 497 (10th Cir. 2002). Other circuits have held a forum-selection clause will apply to claims that “ultimately depend on the existence of a contractual relationship between the parties, ” Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 203 (3d Cir. 1983), overruled on other grounds by Lauro Lines S.R.L., v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989); where “resolution of the claims relates to interpretation of the contract, ” Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th Cir. 1988); or when the claims “involv[e] the same operative facts as a parallel claim for breach of contract, ” Lambert v. Kysar, 983 F.2d 1110, 1122 (1st Cir. 1993).

918 F.3d at 1092. Because Plaintiff's tort claims require proof of elements common to his contract claim, the Court finds that the forum-selection clause would encompass all of his claims.

         Plaintiff does not contend that Clause 24 was the product of fraud, coercion, or overreaching but asserts that, if the Court finds the forum selection clause mandates venue in Qatar, the clause is invalid because it would foreclose any remedy due to inconveniences with proceeding in Qatar. “Forum-selection clauses . . . are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable' under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9-10 (1972). “[A] party resisting enforcement carries a heavy burden of showing that the provision itself is invalid due to fraud or overreaching or that enforcement would be unreasonable or unjust under the circumstances.” Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 957 (10th Cir. 1992).

         Plaintiff argues his remedies would be foreclosed because he would have to hire counsel in Qatar and that, even if physical presence is not required, he would have to contend with a major time difference between Oklahoma and Qatar. Plaintiff cites no authority finding that a time difference or the need to hire counsel in a different location presents inconvenience sufficient to invalidate a forum selection clause. Plaintiff's argument that he would likely need to travel to Qatar multiple times is rebutted by the judicial system in Qatar, which contemplates very little discovery and written submissions rather than the taking of evidence. Although undoubtedly Plaintiff would experience some inconvenience, the issues he raises do not justify non-enforcement of the forum selection clause. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 596-97 (1991). Having concluded that the forum selection clause is valid, the Court next considers the forum non conveniens factors.[4]

         Before dismissing a case under the doctrine of forum non conveniens the Court must find that the foreign forum is an adequate alternative to this Court. “The availability requirement is usually satisfied . . . where the defendants concede to be amenable to process in the alternative forum. Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1174 (10th Cir. 2009) (citing Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 606 (10th Cir. 1998). Further, the remedy provided by the alternative forum “need not be the same as that provided by the American court.” Id. at 607. Instead, the alternative forum is not inadequate unless its remedy is “so ‘clearly inadequate . . . that it is no remedy at all.'” Id. (quoting Piper Aircraft v. Reyno, 454 U.S. 235, 254-55 (1981). Here Defendant contends that Qatar provides an adequate alternative forum, which Plaintiff disputes, arguing that Defendant's reliance on Article 128 of the Labour Law 2004, is improper, because this section applies only to collective labor disputes.

         The Court agrees with Plaintiff that Article 128 applies to collective labor disputes; however, Qatari law provides for individual labor complaints as well. The Labour Law of 2004 was amended by Law No. 13 of 16 August 2017, to include provisions for such claims. For example, Article 115 bis provides:

If a dispute arises between a worker and an employer related to the application of the provisions of this law or the labour contract, each party shall refer the dispute to the Labour Relations Department or to the Human Resources Department at the ...

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