United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, CHIEF JUDGE
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.
AND PROCEDURAL BACKGROUND
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
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").
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.
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.
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.
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.
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
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
Rule 12(b)(6) Motion and Forum-Selection Clauses
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.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 ...