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Bjorgen v. Marco Technologies, LLC

United States District Court, D. Montana, Missoula Division

May 1, 2018

KURT BJORGEN, Plaintiff,
v.
MARCO TECHNOLOGIES, LLC; and DOES 1-5, Defendants.

          ORDER

          DANA L. CHRISTENSEN, CHIEF JUDGE

         Before the Court is Defendant Marco Technologies, LLC's ("Marco") motion to dismiss, stay, or transfer pursuant to Federal Rule of Civil Procedure 12(b)(6). Marco argues that this case should be dismissed, transferred, or stayed due to the existence of a valid forum-selection clause that Plaintiff Kurt Bjorgen ("Bjorgen") agreed to in his employment-related contracts with Marco. For the reasons explained below, the Court grants the motion and transfers this proceeding to United States District Court for the District of Minnesota.

         FACTUAL AND PROCEDURAL BACKGROUND

         Marco is a retail business-to-business technology company headquartered in St. Cloud, Minnesota. Marco primarily sells copiers and printers, manages IT and Cloud services, and provides other specialty business IT services. Marco does not have a physical presence in Montana, but conducts business in northeastern Montana.

         In early October 2013, Marco offered Bjorgen employment as a Technology Advisor for a sales territory that included northeastern Montana and northwestern North Dakota, with David Zieske ("Zieske") serving as Bjorgen's manager. On October 3, 2013, Bjorgen was emailed two employment-related agreements ("Employment Agreements") from Marco and was told to sign and return the documents as a condition of his employment. The Employment Agreements included a Confidential Information, Non-Competition, Non-Solicitation, and Work Product Agreement ("Agreement I") and an Employee Confidential Information Agreement ("Agreement II").

         Both of the Employment Agreements contained forum-selection clauses requiring that any litigation arising out of the Agreements would be venued in Minnesota. Bjorgen signed the Agreements remotely from his residence in Westby, Montana. During the entire term of his employment with Marco, Bjorgen worked out of his home in Westby. Bjorgen did not conduct any sales work in Minnesota during his employment with Marco.

         On or about April 26, 2017, Zieske gave Marco notice that he intended to resign his employment with Marco. Zieske subsequently accepted employment with 360 Office Solutions in Billings, Montana. On or about August 18, 2017, Bjorgen similarly gave Marco notice he intended to resign his employment. Bjorgen also subsequently accepted employment with 360 Office Solutions.

         On September 7, 2017, Marco filed suit against Bjorgen and Zieske in Minnesota state district court, alleging that Bjorgen and Zieske violated the Employment Agreements, misappropriated trade secrets and confidential information, and committed tortious interference. On October 4, 2017, Zieske removed the Minnesota suit to United States District Court for the District of Minnesota.

         On September 21, 2017, Bjorgen filed the instant lawsuit. Bjorgen's Complaint seeks a declaratory judgment that the choice of law and venue requirements of the Employment Agreements be enforced in Montana rather than Minnesota. Bjorgen's Complaint additionally seeks a declaratory judgment voiding the non-compete clause in Agreement I. Finally, Bjorgen alleges tortious interference and abuse of process claims against Marco.

         LEGAL STANDARD

         Rule 12(b)(6) motions test the legal sufficiency of a pleading. Fed.R.Civ.P. 12(b)(6). Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the court can draw a "reasonable inference" from the facts alleged that the defendant is liable for the misconduct alleged. Id. These facts need not be overly specific, but they must "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555).

         Under Rule 12(b)(6), the court is generally limited to the allegations of the complaint, "which are accepted as true and construed in the light most favorable to the plaintiff." Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Nonetheless, a court may dismiss a complaint if it lacks a cognizable legal theory. SmileCare Dental Group v. Delta Dental Plan of California, Inc., 88 F.3d 780, 783 (9th Cir. 1996). Dismissal for failure to state a claim is proper only "if it appears beyond doubt" that the non-moving party "can prove no set of facts which would entitle him to relief." Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th Cir. 2007) (internal quotation marks and citation omitted).

         DISCUSSION

         I. Rule 12(b)(6) Motion and Forum-Selection Clauses

         The appropriateness of dismissal under Rule 12(b)(6) for failure to state a claim based on the presence of a forum-selection clause remains an open issue of law.[1]Atl. Marine Constr. Co. v. United States Dist. Court for W. Dist. of Texas, 571 U.S. 49, 61 (2013); see also Smith v. Aegon Cos. Pension Plan,769 F.3d 922, 934 (6th Cir. 2014). The possibility of a Rule 12(b)(6) motion being used to enforce a forum-selection clause was specifically acknowledged in Atlantic Marine. 571 U.S. at 61. However, the Supreme Court declined to consider whether ...


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