Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:05-cv-00535-SLR

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Case 1:05-cv-00535-SLR
Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2003 WL 252124 (Cite as: Not Reported in F.Supp.2d)

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Not Reported in F.Supp.2d, 2003 WL 252124 Briefs and Other Related Documents Only the Westlaw citation is currently available. United States District Court,D. Delaware. William MCGURK, Plaintiff, v. SWISHER HYGIENE FRANCHISE CORP., Defendant. No. Civ.A. 02-1337-SLR. Jan. 30, 2003. MEMORANDUM ORDER ROBINSON, J. *1 At Wilmington this 30th day of January, 2003, having considered defendant's motion to transfer (D.I.3) and the papers filed in connection therewith; IT IS ORDERED that the motion to transfer to the District of North Carolina is granted for the reasons that follow: 1. Background. Defendant Swisher Hygiene Franchise Corp. ("Swisher") is a North Carolina corporation, with its principal place of business in Charlotte, North Carolina. (D.I.3, Ex. C) Swisher offers and sells franchises for the restroom hygiene business. Plaintiff William McGurk ("McGurk") is a citizen of Delaware. McGurk instituted this action alleging breach of the franchise agreement with Swisher. (D.I.1) Swisher has moved to transfer contending that the forum selection clause in their franchise agreement mandates that all litigation related thereto be filed in North Carolina. (D.I.3) McGurk concedes that there is a forum selection clause, however, argues there are overwhelming reasons to maintain the action here. 2. Standard of Review. Generally, a motion to transfer is reviewed under 28 U.S.C. § 1404(a), which allows a district court to transfer any civil action to any other district where the action might have been brought for the convenience of parties and witnesses and in the interest of justice. See Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.1995). Before engaging in a transfer analysis, however, an examination of the forum selection clause, in the contract signed by the parties, is necessary.

The United States Supreme Court, in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), announced a general rule that 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." Id. at 10; Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988). A party can resist imposition of a forum selection clause if it could demonstrate that the contract resulted from "fraud, undue influence, or overweening bargaining power," id. at 12, or that "enforcement would contravene a strong public policy of the forum in which the suit is brought, whether declared by statute or by judicial decision." id . at 15. The Third Circuit Court of Appeals has interpreted Bremen to mean that a forum selection clause is presumptively valid and will be enforced by the forum unless the party objecting to its enforcement establishes (1) that it is the result of fraud or over-reaching, (2) that enforcement would violate a strong public policy of the forum, or (3) that enforcement would in particular circumstances of the case result in litigation in a jurisdiction so seriously inconvenient as to be unreasonable. Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 202 (3d Cir.1983), overruled on other grounds by Lauro Lines v. Chasser, 490 U.S. 495 (1989). As far as unreasonableness, under Bremen it is *2 incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Bremen, 407 U.S. at 18. "This standard is satisfied if a litigant can demonstrate that it `would face blatant prejudice in the foreign forum' or `if enforcement of the foreign forum selection would be severely impractical." ' Mobilificio San Giacomo S.P.A. v. Stoffi, 1998 WL 125534 at *8 (D.Del.1998). It is undisputed that in April 1997 McGurk signed a contract to purchase a franchise from Swisher. (D.I.3, Ex. A) Pursuant to ¶ 20.2(b) of the contract, the parties agreed that any action brought by the franchisee (McGurk) against the franchisor (Swisher) must be instituted in "Charlotte, North Carolina, or in the judicial district in which the franchisor then has its principal place of business." For approximately

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Case 1:05-cv-00535-SLR
Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2003 WL 252124 (Cite as: Not Reported in F.Supp.2d)

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four years, McGurk owned and operated the Swisher franchise in Delaware. (D.I.4, Ex. E) In September 2001, however, the terms of the relationship began to change and eventually deteriorated in April 2002, when Swisher terminated McGurk's franchise agreement. Consequently, McGurk filed this action for wrongful termination of their contract. (Compare D.I. 3, Ex. C with D.I. 4, Ex. E) The uncontradicted record reflects that the forum selection clause was never altered from the original terms agreed upon by the parties in 1997. There is likewise nothing demonstrating that the terms of the forum selection clause should be invalidated by the court. Although McGurk indicates that he has had surgeries on his knees as well as amputation of part of his foot, and that he is immobile, this does not suggest an impairment that would prevent him from prosecuting this action in the Western District of North Carolina. 3. Conclusion. Having determined that the forum selection clause is valid and enforceable, the motion to transfer (D.I.3) to the Western District of North Carolina is granted. D.Del.,2003. McGurk v. Swisher Hygiene Franchise Corp. Not Reported in F.Supp.2d, 2003 WL 252124 Briefs and Other Related Documents (Back to top) · 1:02CV01337 (Docket) (Jul. 29, 2002) END OF DOCUMENT

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Case 1:05-cv-00535-SLR

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Case 1:05-cv-00535-SLR
Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2001 WL 775980 (Cite as: Not Reported in F.Supp.2d)

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Not Reported in F.Supp.2d, 2001 WL 775980 Briefs and Other Related Documents Only the Westlaw citation is currently available. United States District Court, S.D. Illinois. Randy BLADES, et al., Plaintiffs, v. MONSANTO COMPANY, Defendant. No. 00-CV-4034-DRH. Jan. 3, 2001. MEMORANDUM AND ORDER HERNDON, J. I. Introduction and Procedural Background *1 This matter comes before the Court on Monsanto Company's motion to dismiss pursuant to Rules 12(B)(3) and 12(B)(6) or alternatively, transferring the case to the Eastern District of Missouri pursuant to 18[sic] U.S.C. § 1404(a) or § 1406 (Doc. 21) and Plaintiffs' motion to modify motions to withdraw and substitute in light of consolidation, to identify purported class representatives and to identify lead and liaison counsel for plaintiffs (Doc. 83). Based on the reasons stated herein, the Court grants Monsanto Company's motion to transfer the case to the United States District Court for the Eastern District of Missouri, denies Monsanto Company's motion to dismiss pursuant to Rule 12(b)(3) and denies as moot Monsanto Company's motion to dismiss pursuant to Rule 12(b)(6). Further, the Court grants Plaintiffs' motion to modify motions to withdraw and substitute in light of consolidation, to identify purported class representatives. On February 14, 2000, Randy Blades, Collin Cain, Frederick Samples, Mark A. Jent, and Roger Rivest d/b/a Rivest Farms (ESSEX) LTD., on behalf of themselves and other similarly situated persons filed a seven-count complaint against Monsanto Company ("Monsanto") in this Court (Doc. 1). This case arises out of Monsanto's sale of Genetically Modified ("GM") soybean and corn seeds to Plaintiffs, who are farmers. The sixty three page complaint alleges, inter alia, that Monsanto Company committed

antitrust violations and violations of other laws in the pricing, selling, marketing and promotion of the GM corn and soybean seeds. Prior to the filing of this case, two very similar purported class actions complaints were filed in other district courts against Monsanto Company: (1) Massey v. Monsanto Company was filed in the United States District Court for the Northern District of Mississippi in November 1999; and (2) Higginbotham v. Monsanto Company was filed in the United States District Court for the District of Columbia in December 1999. FN1 On May 22, 2000, Judge Colleen Kollar Kotelly, transferred Higginbotham to this judicial district to determine whether the case should remain in this judicial district or proceed in the Eastern District of Missouri. FN2 Subsequently, Judge Allen Pepper transferred Massey to the Eastern District of Missouri based on the forum selection clause contained in the Technology Agreements entered between Massey and Monsanto. FN1. Higginbotham and Blades are virtually identical. FN2. Judge Kollar Kotelly's Order states: "The parties agree that all three of these putative class-action lawsuits should proceed in the same forum.... In order to facilitate uniform treatment of these suits, the Court has determined that it would be in the interest of justice to transfer this case to the Southern District of Illinois where it can be consolidated with Blades for consideration of all pending motions. The Blades court is in a superior position to assess the propriety of trying these cases in the Southern District of Illinois or the Eastern District of Missouri." (Higginbotham record, Doc. 42). On August 4, 2000, this Court consolidated Higginbotham with this case and ordered that all further pleadings shall be filed in Blades, the lead case (Doc. 68). FN3 On August 28, 2000, Judge Rodney W. Sippel of the Eastern District of Missouri allowed Massey to amend his complaint, thereby, dropping the class action allegations that are similar to the issues in this matter. Thereafter, Plaintiffs moved to modify the motions to withdraw and substitute class representative

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Case 1:05-cv-00535-SLR
Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2001 WL 775980 (Cite as: Not Reported in F.Supp.2d)

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members (Doc. 83). Specifically, Plaintiffs move to withdraw Randy Blades, Collin Cain, George Higginbotham, Mark Jent and Peggy Naylor as class representatives and to substitute Bob McIntosh, thereby making McIntosh and Peterson the named class representatives for Class I (Doc.83). Because Monsanto does not object to the motions to withdraw, FN4 the Court GRANTS Plaintiffs' motion to withdraw and substitute class representative members. Accordingly, McIntosh and Peterson are the purported named class representatives for Class I. FN3. As of the date of the consolidation, the named plaintiffs in the Higginbotham case were George Higginbotham, C-K Farms (by and though Chris Peterson), George Naylor, Patrick De Kochko, and Peggy Naylor FN4. The Court notes that in response to the motion to modify the motions to withdraw and substitute, Monsanto argues that Plaintiffs' shuffling and changing of named class representatives reveals that this case is not proper for class certification. However, the Court need not address this argument for the purposes of addressing the motion to transfer. *2 Now before the Court is Monsanto's motion to transfer the case. Monsanto argues that based on the forum selection clause in the Technology Agreements, the proper venue for claims arising under the Technology Agreements is the Eastern District of Missouri, Eastern Division. The Court agrees. II. Analysis Monsanto asks the Court to transfer the case to the United States District Court for the Eastern District of Missouri in accordance with the Technology Agreement's forum-selection clause. Plaintiffs object to the motion to transfer. Based on the following, the Court finds that transfer to the Eastern District of Missouri is proper. It is well-settled that contractual forum selection clauses are prima facie valid. M/S Bremen v. Zapata Offshore Co., 407

U.S. 1, 10 (1977). Such a clause is enforced unless the provision was procured by fraud or overreaching or enforcement would be unreasonable. Paper Express Ltd. v. th Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7 Cir.1992). In essence, the clause will be enforced unless its enforcement would be a "serious inconvenience." Carnival Cruise Lines, Inc., v. Shute, 499 U.S. 585 (1991). The Seventh Circuit pronounced that "the law is clear: where venue is specified with mandatory or obligatory language, the clause will be enforced; where only jurisdiction is specified, the clause will generally not be enforced unless there is some further language indicating the parties' intent to make venue exclusive." Paper Express, 972 F.2d at 757. The existence of a forum-selection clause is a significant factor that figures centrally in the district court's calculus of whether to transfer a case. Stewart Organization Inc. v. Ricoh Corp., 497 U.S. 22 (1988). Thus, "absent a showing that trial `in the contractual forum will be so gravely difficult and inconvenient that [the party challenging the clause] will for all practical purposes be deprived of his day in court,' "the parties will be held to their bargain as contained in the forum-selection clause." Heller Financial, th Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1291 (7 Cir.1989). From 1998 to 2000, the Technology Agreements between Monsanto and purchasers of patented GM seed technology required all claims arising under those agreements to be litigated in the United States District Court for the Eastern District of Missouri. Specifically, the Technology Agreements contained the following forum selection clause: "THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF MISSOURI AND THE UNITED STATES (OTHER THAN THE CHOICE OF LAW RULES). THE PARTIES CONSENT TO THE EXCLUSIVE JURISDICTION OF THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION, AND THE CIRCUIT COURT OF THE COUNTY OF ST.LOUIS, STATE OF MISSOURI, FOR ALL DISPUTES ARISING UNDER THIS AGREEMENT." The forum selection clause is located and printed in all capital letters in four areas of the Technology Agreement: on the back of the second printed page of the Technology

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Case 1:05-cv-00535-SLR
Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2001 WL 775980 (Cite as: Not Reported in F.Supp.2d)

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Agreement under the "General Conditions" section and on the back of the final three pages of the technology agreement which are the triplicate signature pages. *3 Here, the Higginbotham Amended Complaint alleges that C-K Farms, by and through Peterson, entered into a Technology Agreement with Monsanto. (Higginbotham Amended Complaint, ¶¶ 18-19). FN5 In response to the motion to transfer, Plaintiffs do not contest that Peterson, on behalf of himself and C-K Farms, signed a technology agreement which stated that the appropriate venue for any claim arising from that agreement between him and Monsanto is the Eastern District of Missouri. FN6 However, Plaintiffs claim that this forum selection clause should be given little or no weight since the contracts, on a "class-wide basis" were tainted by fraud. Plaintiffs assert that several of the signatures on these agreements have been forged. FN7 Thus, Plaintiffs cannot overlook the fact that one of the two named Plaintiffs, Peterson (on behalf of C-K Farms) who represents Class I, did sign the Technology Agreement. Therefore, these Plaintiffs cannot claim that his signature were obtained by fraud. FN5. The Blades complaint also alleges that Randy Blades entered into a technology agreement with Monsanto. The Court notes that it did not consider the Blades Technology Agreement because he is no longer a named class representative. FN6. Chris Peterson executed a single technology agreement on his own behalf and on behalf of C-K Farms. FN7. Plaintiffs claim that both Cain and Higginbotham's signatures were forged on the technology agreements. However, Cain and Higginbotham are no longer named class representatives in this action. Further, Plaintiffs claim that the Technology Agreement was a contract of adhesion, claiming there is no evidence that the Technology Agreement resulted from arm's length bargaining or that the clause was negotiable. Plaintiffs also claim that the Technology Agreement is a boilerplate contract which does not represent the agreement of the

parties. The Court is not persuaded by these arguments. The burden for showing that a contract is an unenforceable contract of adhesion is demanding. See Northwestern Nat'l th Ins. Co. v. Donovan, 916 F.2d 372, 377-78 (7 Cir.1990)(upholding forum selection clause against challenge that it was unenforceable in contract of adhesion). The "mere inequality of bargaining power does not of itself make every term of the contract unconscionable." Id. Courts should ask whether the parties had a reasonable opportunity to read and understand the term, and whether the term itself is unreasonable or opporessive. Id. Forum selection clauses contained in boilerplate contracts are "subject to judicial scrutiny for fundamental fairness." Carnival Cruise Lines, 499 U.S. at 595. Here, the forum selection clause is printed in all capital letters and is legible. Moreover, the forum selection clause is not buried in the middle of a paragraph but is provided in four separate areas of the contract: (a) under the section titled "General Conditions" and (b) on the back page of the triplicate signature pages. Plaintiffs have not provided evidence that the forum selection clause was the product of fraud or overreaching. Plaintiffs merely argue that this is a classic contract of adhesion. Further, the record do not establish as a matter of law that the forum selection clause is unconscionable. Nor have Plaintiffs presented facts to support that Peterson did not have equal bargaining power. The Court cannot find that Peterson, on behalf of C-K Farms, signed the agreement due to fraud, undue influence or an overwhelming bargaining power. *4 Having found the forum selection clause in the Technology Agreements entered into by Peterson valid, the Court concludes that venue in this judicial district is not proper, but instead lies within the United States District Court for the Eastern District of Missouri. Specifically, the Technology Agreement exclusively provides for both venue and jurisdiction in the Eastern District of Missouri, Eastern Division. In the case at bar, the parties freely negotiated the contractually chosen forum. Plaintiffs have not shown any fraud or overreaching by Monsanto in the Technology Agreement between Peterson and Monsanto. Therefore, Plaintiffs should not be allowed to bypass the contractual agreement now by bringing suit in the wrong court.

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Case 1:05-cv-00535-SLR
Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2001 WL 775980 (Cite as: Not Reported in F.Supp.2d)

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28 U.S.C. § 1406(a) allows a district court to transfer a case filed in the wrong venue if it is in the interests of justice to do so. The case may be transferred to any judicial district where it could have been brought. 28 U.S.C. § 1406(a). A district court must dismiss such a suit if it denies the transfer. Id. Here, the Court finds that the forum selection clause signed by Peterson and Monsanto shall be enforced. Therefore, the Court finds that it is in the interests of justice to transfer the case to the Eastern District of Missouri. III. Conclusion Accordingly, the Court GRANTS in part, DENIES in part and DENIES as moot Monsanto Company's motion to dismiss pursuant to Rules 12(b)(3) and 12(b)(6) or in the alternative Monsanto Company's motion to transfer the case to the Eastern District of Missouri (Doc. 21). The Court DENIES Monsanto Company's motion to dismiss pursuant to Rule 12(b)(3), DENIES as moot Monsanto Company's motion dismiss pursuant to Rule 12(b)(6) and GRANTS Monsanto Company's motion to transfer the case to the Eastern District of Missouri. Pursuant to 28 U.S.C. § 1406(a), the Court TRANSFERS this case to the United States District Court for the Eastern District of Missouri. In addition, the Court GRANTS Plaintiffs' motion to modify motions to withdraw and substitute in light of consolidation, to identify purported class representatives (Doc. 83). Further, the Court DENIES as moot the remaining pending motions. IT IS SO ORDERED. S.D.Ill.,2001. Blades v. Monsanto Co. Not Reported in F.Supp.2d, 2001 WL 775980 Briefs and Other Related Documents (Back to top) · 4:00CV04034 (Docket) (Feb. 14, 2000) END OF DOCUMENT

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2001 WL 34053250 (Cite as: Not Reported in F.Supp.2d)

Not Reported in F.Supp.2d, 2001 WL 34053250 Briefs and Other Related Documents Only the Westlaw citation is currently available. United States District Court,E.D. Missouri, Eastern Division. MONSANTO COMPANY, Plaintiff, v. Hal SWANN, et al., Defendants. No. 4:00-CV-1481 CEJ. Sept. 25, 2001. ORDER JACKSON, J. *1 This matter is before the Court upon the defendants' motion to dismiss the complaint for lack of jurisdiction. The defendants also request that this action be transferred to the Northern District of Mississippi. The plaintiff has filed a response, and the issues are fully briefed. In their motion, the defendants challenge the validity of a choice of law and forum selection clause contained in the licensing agreements they signed. The clause, which was printed in all capital letters, stated as follows: THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF MISSOURI AND THE UNITED STATES (OTHER THAN THE CHOICE OF LAW RULES). THE PARTIES CONSENT TO THE EXCLUSIVE JURISDICTION OF THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION, AND THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS, STATE OF MISSOURI, FOR ALL DISPUTES ARISING UNDER THIS AGREEMENT. This Court has been called upon to consider this clause on several prior occasions, and has consistently found that it is both valid and enforceable. See Monsanto Company v. Nelson, No 4:00-CV-1636(CEJ) (E.D.Mo. September 6, 2001); Monsanto Company v. Dawson, No. 4:98-CV-2004(TCM) (E.D.Mo. August 18, 2000); Monsanto Company v. McFarling, No. 4:00-CV-84(CDP) (E.D.Mo. April 13, 2000); Monsanto Company v. Godfredson, No. 4:99-CV-1691 (CDP) (E.D.Mo. April 13,

2000). The defendants present no argument compelling a different conclusion. On the basis of the well-reasoned opinions cited above, the Court concludes that the choice of law and forum selection clause contained in the agreements the defendants signed is enforceable as to jurisdiction and venue. Accordingly, IT IS HEREBY ORDERED that the defendants' motion to dismiss [Doc. # 16] is denied. E.D.Mo.,2001. Monsanto Co. v. Swann Not Reported in F.Supp.2d, 2001 WL 34053250 Briefs and Other Related Documents (Back to top) · 4:00CV01481 (Docket) (Sep. 14, 2000) END OF DOCUMENT

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2001 WL 34079479 (Cite as: Not Reported in F.Supp.2d)

Not Reported in F.Supp.2d, 2001 WL 34079479 Only the Westlaw citation is currently available. United States District Court,E.D. Missouri, Eastern Division. MONSANTO COMPANY, Plaintiff, v. Greg NELSON and Nelson Farm Enterprises, Defendants. No. 4:00-CV-1636 CEJ. Sept. 10, 2001. MEMORANDUM AND ORDER JACKSON, J. *1 This matter is before the Court upon the defendants' motion to dismiss or, in the alternative, to transfer this action for improper venue. Also before the Court is plaintiff's motion to enjoin or stay the arbitration proceedings pending in North Dakota. Defendants Greg Nelson and Nelson Farm Enterprise, residents of North Dakota, entered into an agreement to purchase Roundup Ready soybean seeds manufactured by plaintiff Monsanto Company. In connection with the purchase the defendants executed a "Monsanto Technology Agreement" dated March 31, 1999, in which they acknowledged plaintiff's patents on the seed technology and agreed that they would not harvest or replant seeds from the Roundup Ready product or from any other Monsanto seed product. In the instant action, plaintiff alleges that in 1999 the defendants used Roundup Ready soybean seed that had been saved from the 1998 planting season in order to produce a crop of soybeans containing plaintiff's Roundup Ready technology. The Technology Agreement contained the following forum selection provision: THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF MISSOURI AND THE UNITED STATES (OTHER THAN THE CHOICE OF LAW RULES). THE PARTIES CONSENT TO THE EXCLUSIVE JURISDICTION OF THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION, AND THE

CIRCUIT COURT OF THE COUNTY OF ST. LOUIS, STATE OF MISSOURI, FOR ALL DISPUTES ARISING UNDER THIS AGREEMENT. The defendants argue that the provision is not valid for the following reasons: (1) the forum selection clause in the technology agreement does not constitute a choice of forum or venue; (2) under 28 U.S.C. § 1400(b) the District Court for North Dakota is the exclusive venue for this matter; and (3) venue in North Dakota would be a more convenient forum. Forum selection clauses are valid and enforceable unless they are unjust or unreasonable for reasons such as fraud or overreaching. M.B. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750, 752 (8th Cir.1999). Plaintiff's forum selection clause is neither unjust, unreasonable, nor invalid. Defendants' arguments that the forum selection clause does not constitute a choice of forum or venue and that § 1400(b) provides exclusive jurisdiction to the federal court in North Dakota are without merit. The forum selection clause specifically states that any disputes arising under the Technology Agreement are to be resolved in the United States District Court for the Eastern District of Missouri or in the St. Louis County Circuit Court. Defendants' execution of the agreement constitutes valid consent to venue in this district. Defendants alternatively argue that the case should be transferred to North Dakota where they and their witnesses reside because of the inconvenience that will be presented by traveling to Missouri. While convenience of the parties and witnesses are factors to consider in determining whether to transfer a cause of action, the most significant factor in a court's decision is a forum selection clause. See Stewart Organization, Inc. v. Ricoh Corp ., 487 U.S. 22, 29 (1988). Inconvenience alone does not constitute a valid reason to transfer a matter to a different district, especially after a party has agreed to a forum selection clause. *2 Defendants also argue that the Technology Agreement does not govern this action because the alleged infringement occurred, if at all, at a time prior to the date of the Agreement. This argument is without merit. Once the defendants agreed not to violate plaintiff's patent on Roundup Ready technology, they became bound by that

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2001 WL 34079479 (Cite as: Not Reported in F.Supp.2d)

agreement for the duration of the contract. Thus, the defendants' planting of saved Roundup Ready seeds at any time after they signed the Agreement constitutes a violation of plaintiff's patent. On January 21, 2001, after this lawsuit was filed, the defendants submitted this matter, without plaintiff's consent, to arbitration before the North Dakota State Seed Arbitration Board. This action involves federal patent law and defendants' attempt to remove it to a state arbitration board without plaintiff's consent is an apparent attempt to avoid this Court's jurisdiction over this matter. Defendants cannot circumvent the terms of the Technology Agreement nor can they avoid litigating the instant case in this district pursuant to the forum selection clause. Accordingly, the defendants will be enjoined from pursuing or participating in the pending arbitration proceedings. For the foregoing reasons, IT IS HEREBY ORDERED that defendants' motion to dismiss or, in the alternative, to transfer for improper venue [Doc. # 15] is denied. IT IS FURTHER ORDERED that plaintiff's motion for an emergency hearing [Doc. # 41] is denied as moot. IT IS FURTHER ORDERED that plaintiff's motion for an order enjoining defendants from pursuing arbitration of this matter or, in the alternative, staying arbitration proceedings before the North Dakota Department of Agriculture [Doc. # 40] is granted. IT IS FURTHER ORDERED that the defendants are enjoined from pursuing or participating in any arbitration proceedings concerning the claims and issues involved in the instant case. Alternatively, all such proceedings commenced before the North Dakota Department of Agriculture Board are stayed pending the resolution of the instant action. E.D.Mo.,2001. Monsanto Co. v. Nelson Not Reported in F.Supp.2d, 2001 WL 34079479 END OF DOCUMENT

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2000 WL 1146705, 2000-2 Trade Cases P 72,995 (Cite as: Not Reported in F.Supp.2d)

Not Reported in F.Supp.2d, 2000 WL 1146705, 2000-2 Trade Cases P 72,995 United States District Court, N.D. Mississippi, Delta Division. Rudolph MASSEY, et al., Plaintiffs, v. MONSANTO COMPANY, et al., Defendants. No. 299CV218-P-B. June 13, 2000. MEMORANDUM OPINION PEPPER *1 This case is presently before the Court on defendants' motions to dismiss [7-1 and 8-1], plaintiff's motion to voluntarily dismiss without prejudice [11-1], and defendants' motion to transfer to the Eastern District of Missouri [16-1]. Finding that this case should be transferred to the Eastern District of Missouri, this Court will deny the defendants' motions to dismiss and the plaintiff's motion to dismiss without prejudice. The relevant facts of the case are as follows: FACTUAL BACKGROUND Plaintiff Rudolph Massey, a farmer in Coahoma County, Mississippi, purchased Hartz Roundup Ready soybean seeds, manufactured by Defendant Monsanto Company. On November 8, 1999, he filed this lawsuit against Monsanto and Terra International on behalf of himself and other persons who purchased these biologically-engineered soybean seeds, alleging violations of the Sherman Anti Trust Act, violations of Mississippi's anti-trust laws, violations of RICO, negligence, fraud and deceit, breach of implied warranty of merchantability, and breach of implied duty of good faith and fair dealing. On January 31, 2000, the defendants filed motions to dismiss certain counts of the complaint. On March 8, 2000, Massey filed a motion to voluntarily dismiss without prejudice. Subsequently, on April 10, 2000, the defendants filed a motion to transfer the case to the Eastern District of Missouri. This case is very similar to other class action complaints

filed in the United States District Court for the District of Columbia and the United States District Court for the Southern District of Illinois. Massey, et al. v. Monsanto was filed in the Northern District of Mississippi in November of 1999, Higginbotham, et al. v. Monsanto was filed in the District of Columbia in December of 1999, and Blades, et al. v. Monsanto was filed in the Southern District of Illinois in February of 2000. On May 22, 2000, Judge Colleen Kollar Kotelly, U.S. District Court Judge for the District of Columbia, ordered that Higginbotham be transferred to the Southern District of Illinois, where the Blades case is pending. The Blades court has set a hearing on June 19, 2000, on Monsanto's motion to dismiss and Monsanto's motion to transfer venue to the Eastern District of Missouri. All parties agree that the lawsuits should be tried together; however, Monsanto does not agree that the Southern District of Illinois is the proper forum. In this case, as in the others, Monsanto relies heavily on a "forum selection clause" contained in Monsanto's Technology Agreement ("TA"), which states that the appropriate venue for claims arising under the TA is the Eastern District of Missouri. FN1 FN1. The provision reads "THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF MISSOURI AND THE UNITED STATES (OTHER THAN THE CHOICE OF LAW RULES). THE PARTIES CONSENT TO THE EXCLUSIVE JURISDICTION OF THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION, AND THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS, STATE OF MISSOURI, FOR ALL DISPUTES ARISING UNDER THIS AGREEMENT." LEGAL ANALYSIS I. Forum Selection Clause A forum selection clause should control absent a strong showing that it should be set aside. The Bremen v. Zapata Off Shore Company, 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). Such a "strong showing" would

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include clauses which are tainted by fraud, undue influence, or overwhelming bargaining power. Id. *2 In the case presently before this Court, Massey acknowledges that he signed an agreement which stated that the appropriate venue for any claim arising from that agreement between Massey and Monsanto is the Eastern District of Missouri. However, he claims that this forum selection clause should be given little or no weight since the contracts, on a "class-wide basis," were tainted by fraud. Massey asserts that several of the signatures on these agreements may have been forged. See Def.'s Mem. Supp. Summ. J. at 6, Monsanto v. Stratemeyer, Civil No. 99CV01218CEJ (E.D.Mo.) ; George Higginbotham Aff., Higginbotham v. Monsanto, Civil No. 1:99CV03337CKK (D.C.Cir.); Collin Cain Aff., Blades v. Monsanto, Civil No, 00-4034-GPM (S.D.Ill). But Massey, the only named plaintiff in this case, did sign his Technology Agreement. Therefore, he cannot claim that his signature was obtained by fraud. Massey also claims that the agreement was the result of unequal bargaining power between this conglomerate and an average farmer, and that since he was forced to sign the agreement if he wanted to purchase soybeans from Monsanto, his assent to the agreement was not truly voluntary. See Bank of Indiana, N.A. v. Holyfield, 476 F.Supp.104, 109-110 (S.D.Miss.1979) ("A lack of voluntariness is demonstrated in contracts of adhesion when there is a great imbalance in the parties' relative bargaining power, the stronger party's terms are unnegotiable, and the weaker party is prevented by market factors, timing or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all."). However, Monsanto points out, and the Court agrees, that Massey had the opportunity to purchase any of the numerous other soybean seed varieties available on the market. Thus, Massey, as the "weaker party," was not prevented in anyway from refusing to enter into the agreement. Despite Massey's contentions to the contrary, this Court cannot find that he signed the agreement due to fraud, undue influence, or an overwhelming bargaining power. In addition, Massey asserts that, given the standard form

language, or "boilerplate nature," of this forum selection clause, this Court should give the clause little weight in ruling on the motion to transfer. When a forum selection clause is "an obscure boilerplate provision, obviously inserted only for the convenience of the defendant, with no indication of having been freely bargained between the parties," a court may deny enforcement. Couch v. First Guaranty Limited, 578 F.Supp. 331, 333 (N.D.Tex.1984). Forum selection clauses contained in boilerplate contracts are "subject to judicial scrutiny for fundamental fairness." Carnival Cruise Lines, Inc. v. Shute, 49 U.S. 585, 595, 111 S.Ct. 1522, 1528, 113 L.Ed.2d 622 (1991). Massey asserts that the forum selection clause in the agreement is an obscure boilerplate provision, in that it is "not even located anywhere near the signature line, but is buried at the end of a lengthy page of clauses." Opp. at 9. This Court has reviewed the agreement in question, and finds that Massey's argument is without merit. The entire agreement is only two pages, and the forum selection clause is the last paragraph on the second page. Furthermore, the clause is the only provision in the agreement that is written entirely in capital letters. Clearly, the provision is not "obscure" as Massey claims, and the boilerplate clause is enforceable. 2. 28 U.S.C. § 1404(a) *3 A case brought in federal court may be transferred to any other district or division where it might have been brought "[f]or the convenience of the parties and witnesses [and] in the interests of justice." 28 U.S.C. § 1404(a). The purpose of § 1404(a) is to avoid "waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (citations omitted). The decision to transfer a suit to a more convenient location is in the sound discretion of the Court. Nowell v. Dick, 413 F.2d 1204 (5th Cir .1969). When determining the convenience of the parties and the interests of justice, the Court is allowed to consider a wide range of circumstances under the particular facts of each case. Stewart Organization, Inc. v. Riouch Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2243, 101 L.Ed.2d 22 (1988). The Court may consider the following factors when determining whether to transfer a case under § 1404(a):

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1. the relative ease of access to sources of proof; 2. the availability of compulsory process, where necessary, over witnesses; 3. the cost of obtaining witnesses for attendance at trial; 4. the possibility of a view of the premises, if appropriate; 5. the enforceability of a judgment; 6. administrative difficulties of the courts; 7. the local interest of the controversy, and the imposition of jury duty on citizens residing in a community having no relation to the litigation; 8. the propriety of having the action tried in a forum "at home" with the state law governing the case; 9. the plaintiff's choice of forum; 10. the possibility that trial in the original forum will result in inconvenience, vexation, oppression, or harassment of the defendants; 11. all other practical problems that make the trial of a case easy, expeditious, and inexpensive. First Mississippi Corporation v. Thunderbird Energy, Inc., 876 F.Supp. 840, 845 (S.D.Miss1995) (citing Radio Sante Fe, Inc. v. Sena, 687 F.Supp. 284, 287 (E.D.Tex.1988)). The Court is allowed to consider the above factors, even when a forum selection clause is present, if the Court concludes "that enforcement of the clause would effectively `deprive [the party moving for the change of venue] of [his] day in court.' " Id. (citing Seattle First Nat'l Bank v. Mangas, 900 F.2d 795, 799 (5th Cir.1990)). With regard to the "convenience" factor of § 1404(a), the plaintiff in this case urges the Court that the defendants have failed to establish that transfer to the Eastern District of Missouri is necessary for the convenience of the parties. See Resolution Trust Corp. v. Cumberland Dev. Corp., 776 F.Supp. 1146, 1151 (S.D.Miss.1991). Massey claims that since virtually no difference exists between the U.S. District Court for the Eastern District of Missouri and the U.S. District Court for the Southern District of Illinois, then this case should be sent to the Southern District of Illinois as the plaintiff's chosen forum. "Defendant Monsanto is headquartered in St. Louis, Missouri, which is located a scant 4 miles across the Mississippi River from downtown East St. Louis, Illinois, where the District Court for the Southern District of Illinois is located." Plaintiff's Mem. at p. 3. The Court must point out, however, that "the deference

accorded the plaintiff's choice of forum is diminished ... when the plaintiff has brought suit in a forum which is not its `home turf.' " Armco Steel Co. v. CSX Corp., 790 F.Supp. 311, 323 n. 11 (D.C.Cir.1991) (citations omitted). *4 The convenience of the parties will not alone justify a change of venue; a transfer should also be in the interests of justice. Henry v. First National Bank of Clarksdale, 50 F.R.D. 251, 270 (N.D.Miss.1970). The "interest of justice" requirement of § 1404(a) may, in itself, be determinative of the decision to transfer a case, even if the convenience of the parties and witnesses would call for a different result. Frazier v. Commercial Credit Equipment Corp., 755 F.Supp. 163, 167 (S.D.Miss.1991). This Court cannot determine that the interests of justice would best be served by transferring this case to the Southern District of Illinois. As such, the forum selection clause signed by both parties will be enforced, and the case will be transferred to the Eastern District of Missouri. CONCLUSION Based on the foregoing, the Court hereby finds that the defendants' motions to dismiss should be DENIED and the plaintiff's motion to voluntarily dismiss without prejudice should be DENIED. The Court also finds that the defendants' motion to transfer to the Eastern District of Missouri should be GRANTED. An order will issue accordingly. This, the %% day of June, 2000. N.D.Miss.,2000. Massey v. Monsanto Co. Not Reported in F.Supp.2d, 2000 WL 1146705, 2000-2 Trade Cases P 72,995 END OF DOCUMENT

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Slip Copy, 2005 WL 1017804 Briefs and Other Related Documents Only the Westlaw citation is currently available. United States District Court,E.D. Pennsylvania. HAY ACQUISITION COMPANY, I, INC. et al., Plaintiffs, v. Bernd SCHNEIDER et al., Defendants. No. Civ.A. 2:04-CV-1236. April 27, 2005. Glenn A. Beard, Philadelphia, PA, for Plaintiffs. John J. Barrett, Jr. , Saul Ewing LLP , and Michael J. Salmanson , Salmanson Goldshaw, P.C., Philadelphia, PA, for Defendants. MEMORANDUM DAVIS, J. *1 Presently before the Court is the Motion to Dismiss or to Stay filed by Defendants Bernd Schneider and Lucie Boller-Bockius (Defs.' Mot., Doc. No. 19). For the reasons that follow, Defendant Schneider's Motion to Dismiss is GRANTED with respect to all Plaintiffs. The Court will decline to exercise its jurisdiction over their claims against Schneider, as they are bound to bring those claims in Germany under the forum selection clause in Schneider's employment contract. These dismissals shall be effected without prejudice, in the event that the German Courts cannot or will not adjudicate their claims. Defendant Boller-Bockius' Motion to Stay is GRANTED with respect to all Plaintiffs. Moreover, the Court will stay the instant action in its totality until the German Courts conclude the parallel, pending litigation involving both Defendants Schneider and Boller-Bockius. I. FACTUAL AND PROCEDURAL BACKGROUND A. The Parties Plaintiffs in this matter are Hay Acquisition Company I, Inc. ("Hay Acquisition"), Hay Group Management, Inc. ("Hay Management"), Hay Group, Inc. ("Hay Group"), and Hay Group International, Inc. ("Hay International") (collectively,

"Plaintiffs" or "Hay U.S. Companies"). Hay Acquisition is the owner of Hay Management, Hay International, and Hay Group. Id. at 26. Hay Acquisition and Hay Group GmbH ("Hay Germany") are owned by an entity known as Hay Group Investment Holding B.V. ("HGIH B.V."). Pls.' Compl. at ¶ 27. An entity that will be referred to as "HG Bermuda" sits atop the foregoing organizational structure, as the ultimate parent company of all the above named entities. Id. at ¶ 28. HG Bermuda is governed by an Ownership Board consisting of approximately fifteen shareholders; according to Plaintiffs' Complaint, this Board acts as the "ultimate governing body for all the Hay companies." Id. at ¶ 33. The organizational head of HG Bermuda is Chris Matthews, who is the Chairman and Chief Executive Officer of that entity, as well as the Chairman of the Boards of HGIH B.V. and all the Plaintiff entities. Id. at ¶ 31. Relevant to this Motion is the fact that Hay Management is the center of accounting for all of the subsidiaries of HG Bermuda, including all the Plaintiffs and Hay Germany. Id. at ¶ 30. The individual defendants in this case are all former employees of the various Hay entities. Defendant Bernd Schneider is the former Chief Executive Officer of HGIH B.V., the former President of all the Plaintiff entities, a former officer of Hay Germany, and a former director of Hay Acquisition. Id. at ¶ 15. Defendant Lucie Boller-Bockius is the former Finance Director and an officer of Hay Germany. Pls.' Compl. at ¶ 18. Defendant Suresh Bhula is a former director and treasurer of Hay Group, Hay Acquisition, and Hay International. Id. at ¶ 7. He has not joined in the instant motion to dismiss. B. Schneider's Employment Contract and the Cost Allocation Agreement *2 In October 2001, Schneider entered into an employment agreement with HGIH B.V. ("Employment Agreement" or "Agreement"), pursuant to which he became Chief Executive Officer of that entity. Id. at ¶ 32. In February 2003, he was appointed director of Hay Acquisition; in March of 2003, he was appointed president of each of the Plaintiff entities. Id. Prior to Schneider's appointment to the presidency of the Plaintiff entities, that position was filled by Chris Matthews. Id. at ¶ 31.

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The Employment Agreement is dated October 1, 2001; signed by Schneider, Matthews, and William Heppleston, who is identified as a "managing director;" and reviewed and approved by two employees of HGIH B.V. FN1 9/2/04 Thees Decl., Ex. B. The Agreement appears to be the sole document governing the terms and conditions of Schneider's employment with HGIH B.V. or any other Hay affiliate. In connection with their opposition to this Motion, Plaintiffs have submitted the sworn declaration of the General Counsel of Hay Group, Jeffrey H. Marcus, who states that Schneider received no additional compensation after his appointment to the presidency of the Hay U.S. Companies. Marcus Decl. at ¶ 16. Marcus also states that Schneider's employment contract was not amended in any way after he was appointed to be President of the Hay U.S. Companies. Id. FN1. As an evidentiary matter, the Court notes that the Employment Agreement is relevant to Defendant Schneider's motion to dismiss under Rule 12(b)(6), which is based on the existence of a valid forum selection clause. While a Court may ordinarily not consider matters outside of the pleading attacked by a Rule 12(b)(6) motion, the Third Circuit has recognized that a Court may rely on documents that the defendant attaches to the motion to dismiss if they are referred to in the plaintiff's complaint and are central to the claim. See Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir.2002). Because the Plaintiffs' complaint refers to the employment agreement and it is central to the claims asserted, as will be discussed, the Court may properly consider the employment contract in determining whether dismissal is warranted under Rule 12(b)(6) due to the forum selection clause contained therein. Defendants ground the remainder of their dismissal motion in the doctrines of international comity and forum non conveniens rather than Rule 12(b)(6). The Court may therefore properly rely on the other supporting documents attached to the parties' motions, replies, and sur-replies in evaluating the merits of those arguments.

The Employment Agreement contains several provisions relevant to this Motion to Dismiss. Article VI of the Agreement contains both a choice of law provision and a forum selection clause: This agreement contains the entire agreement between the parties and shall be governed by and construed in accordance with the internal substantive laws of Germany. [HGIH B.V. and its assignees] and [Schneider] each consent to the exclusive jurisdiction of, and agree that any controversy between them arising out of this Agreement shall be brought only in the Labor Court of Germany or such other court venued in Frankfurt, Germany as may have subject matter jurisdiction over the controversy.... FN2 FN2. The forum selection clause does make an exception for violations of Schneider's covenant not to compete. Such claims may be brought by HGIH B.V. and its assignees wherever such violation(s) shall occur. 9/2/04 Thees Decl., Ex. B at ¶ 6.3. 9/2/04 Thees Decl., Ex. B. at 10, ¶ 6.3. Article II of the Employment Agreement sets forth the manner in which Schneider's base salary and bonus shall be determined and paid. Certain subsections of Articles III and IX speak to the definition of "for cause" termination and the consequences thereof. Id. at 4-6, ¶¶ 3.1, 3.5; 12-13, ¶ 9.4 The Employment Agreement refers to the Hay U.S. Companies in a number of ways, though not by their individual names. Article 9.1 of the Employment Agreement defines the "Affiliated Group" as HGIH B.V. and its subsidiaries, a category to which the Hay U.S. Companies indisputably belong. Id. at 12, ¶ 9.1. Article 1.2 of the contract states that Schneider shall serve as "a member of the Board of Directors or other governing body of each member of the Affiliated Group." Id. at 2, ¶ 1.2. Article 2.3 of the contract provides that Schneider may participate in certain benefit plans of the Affiliated Group, so long as his participation does not present an unreasonable difficulty; Article 2.6 allows Schneider to be reimbursed for expenses incurred in connection with his services to the Affiliated Group. Id. at 3, ¶¶ 2.3, 2.6. Article 2.7(a) gives HGIH B.V. the right to force members of the Affiliated

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Group to comply with Schneider's requests for payment under the contract. Id. at 4, ¶ 2.7(a). The entirety of Article V imposes a covenant not to compete upon Schneider in the event of his departure from HGIH B.V.; that covenant expressly includes a prohibition on engaging in activities that would be directly competitive with members of the Affiliated Group, misappropriating intellectual property and disclosing confidential information of the Affiliated Group. Id. at 7-9, ¶¶ 4.1-4.3. Lastly, the Agreement states that a termination for "just and reasonable cause" may result from behaviors that are materially harmful to any member of the Affiliated Group: (1) "an intentional act of fraud, embezzlement or theft in connection with his duties or in the course of employment with ... any [ ] member of the Affiliated Group"; (2) "intentional wrongful damage to property of ... any [ ] member of the Affiliated Group"; (3) "intentional wrongful disclosure of secret processes or confidential information of ... any [ ] member of the Affiliated Group"; (4) "intentional wrongful engagement in competitive activity in violation of this Agreement." Id. at 13, ¶ 9.4(a)-(d). *3 On October 24, 2003, Hay Germany, HGIH B.V., and Hay Management executed a Cost Allocation Agreement, to memorialize how Hay Management would reimburse HGIH B.V. for services provided to that entity by Schneider. FN3 9/2/04 Thees Decl., Ex. C (Cost Allocation Agreement dated October 24, 2003). In this agreement, Hay Management agrees to assume "all other contractual obligations as triggered by the Employment Contract," meaning the original Employment Agreement between Schneider and HGIH B.V. Id. The agreement states that it is retroactive to October 1, 2001, the date of Schneider's original Employment Agreement, and goes on to proclaim that "This contract is governed by German law. Venue is Frankfurt am Main." Id. FN3. The Cost Allocation Agreement is dated October 24, 2003. It was not signed by Chris Matthews, on behalf of HGIH B.V. and Hay Management, until November 1, 2003. Because the agreement is retroactive to October 1, 2001, the date on which the parties actually placed their signature on the document is irrelevant to the

Court's analysis. C. Alleged Misdeeds by Schneider and Boller-Bockius A material amount of the allegations in the Complaint against Schneider and Boller-Bockius stem from a dispute between Schneider, the Ownership Board, and a subset of the Ownership Board known as the Compensation Committee. Plaintiffs allege that the conflict began in late 2002, when the Compensation Committee, which was advised by Plaintiffs' Chief Financial Officer Stephen D. Kaye, recommended a bonus of less than 100% of Schneider's eligible bonus under his Employment Agreement and required that the bonus he did receive be reinvested in HG Bermuda. Pls.' Compl. at ¶¶ 35, 38. Plaintiffs allege that, in response to these and other actions Schneider perceived as unjust, he began to engage in a variety of improper activities with the goal of retaliating against Hay personnel who supported the decisions of the Ownership Board and the Compensation Committee, including Mr. Kaye. Plaintiffs allege that one such improper action was Schneider's commencement and maintenance of a malicious and unfounded internal investigation against Mr. Kaye. In the course of pursuing this investigation and other retaliatory activities, Plaintiffs claim that Schneider recruited other Hay employees, specifically Bhula and Boller-Bockius, whom he rewarded for their participation. Id. at ¶¶ 73-95. Plaintiffs also allege that Schneider, in order to rectify what he perceived to be an underpayment of his fiscal year 2002 bonus, paid himself a secret bonus of $230,000 USD in Hay Germany funds. These funds were then primarily recharged to Hay Management. Id. at ¶ 50. This payment was allegedly made in concert with Boller-Bockius and without the knowledge or consent of the Compensation Committee. FN4 Id. Plaintiffs further allege that Schneider engaged a fleet of attorneys in four different countries to prepare resolutions and documents that would impede the independent operation of the Ownership Board; as with the secret bonus payment, Schneider allegedly used Hay Germany funds to pay these attorneys, then charged those funds to Hay Management. Id. at ¶¶ 52-54. Plaintiffs allege that both the excess bonus payment and the attorneys' fees charged to Hay Management caused a financial loss to that

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entity, as well as to the other Plaintiffs, who share the allocated costs of central management. Id. at ¶¶ 66, 67. FN4. The Complaint, however, indicates that Schneider has returned this overpayment and executed a statement of waiver. Id. at ¶ 68. *4 Plaintiffs also allege that Schneider, in order to reward Boller-Bockius for her complicity in the above-detailed activities, promoted her to the position of "Finance Director" of Hay Germany, a position for which she was not qualified and in which she had control over the financial affairs of that entity. Id. at ¶ 128. Schneider then purportedly raised Boller-Bockius's salary, provided her with secret pension and severance agreements, and improperly transferred to her a portion of his interest in HG Bermuda. Again, Plaintiffs claims that none of these actions were known to or approved by the Plaintiffs or Hay Germany. Id. at ¶¶ 130, 136. As a result, the Hay Germany fiscal 2003 audit did not reflect the cost of the secret termination agreement allegedly entered into by Schneider and Boller-Bockius; this erroneous audit was incorporated into the consolidated financial results of HIGH B.V. Id. at ¶¶ 142-144. The overstated consolidated results resulted in the appearance of a much larger pool of income from which to determine executive bonuses, including Schneider's; Plaintiffs allege that the resulting overpayment of bonuses caused the Hay companies to suffer a financial loss. Id. at ¶¶ 152-153. D. The German Court Actions On December 9, 2003, the Ownership Board terminated Schneider for cause from all his positions in the Hay companies, including his position as president of the Plaintiff companies and director of Hay Acquisition. Id. at ¶ 154. Schneider filed suit in the Labor Court in Frankfurt, Germany on December 23, 2003, contesting that he was terminated for cause and seeking a declaration that he was improperly terminated. Defs.' Mot. at 4. In his original complaint in the German court, Schneider states his belief that the basis for HGIH B.V.'s termination was his execution and amendment of the pension agreement for Boller-Bockius without the required prior approval of the attendees of HGIH B.V.'s annual meeting and his failure to

immediately inform the Hay Group and its auditors of this agreement, leading to "a negative financial effect worldwide." 9/2/04 Thees Decl., Ex. E at. ¶ 9. Schneider has amended his complaint in the German Court to ultimately include all the Plaintiffs in this action. With respect to the Plaintiffs in this action, on April 16, 2004, Schneider amended his complaint to include a demand for a declaratory judgment that he was terminated without cause and that he is entitled to a claim for damages, that he is entitled to bonus payments, that he is not liable to Plaintiffs for damages, that Plaintiffs are liable for his legal fees, and that any judgment rendered in the matter before this Court would not be enforceable in Germany. 9/2/04 Thees Decl. at ¶ 21e. Boller-Bockius is also pursuing litigation against various Hay entities in German court. According to her German counsel, Dr. Holger Thomas, after Hay Germany refused Boller-Bockius' request for severance payments, she filed suit against that entity on February 18, 2004. 9/1/04 Thomas Decl. at ¶ 6. In that action, Boller-Bockius seeks payments due her under her original employment agreement with Hay Germany dated October 1, 1972, her supplemental agreement dated January 16, 2003, and her severance payment agreement dated July 15, 2003. Id. at ¶ 7; see also id., Ex. B at 2-3. In its responsive pleading to Boller-Bockius' complaint, Hay Germany asserts that the January 2003 and July 2003 agreements are not valid because of various wrongdoings engaged in by Boller-Bockius; these wrongdoings are exclusively related to actions taken in concert or at the behest of Schneider. Hay Germany further states that Schneider unilaterally and inappropriately entered into these agreements with Boller-Bockius without notice to or the required approval of his or her employer or its shareholders. Id., Ex. B at 20-22. Hay Germany's pleading also details the concealment of these agreements by Schneider and Boller-Bockius from the auditors that performed the 2002/2003 audits on all the Hay subsidiaries and that concealment's impact on the financial results of those entities; her collaborations with Schneider in his allegedly retaliatory activities against Mr. Kaye; and her assistance in securing Schneider's excessive bonus in the year 2002. Id. at 5, 17, 23. In addition to pursuing her own

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action, Boller-Bockius joined Schneider's action in the Labor Court on April 16, 2004, in the same filing that Schneider joined the Hay U.S. Companies to that action. 9/2/04 Thees Decl. at ¶ 21(e). *5 On October 13, 2004, the German Labor Court held an oral hearing in chambers, pursuant to which it took several actions. 11/30/03 Thees Decl. at ¶ 3. In an order dated November 17, 2004, the Labor Court ultimately separated the complaints of Boller-Bockius and Schneider, retaining jurisdiction over the claims asserted in the former and declining jurisdiction over those asserted in the latter. FN5 Id. at ¶¶ 5, 9. Counsel for the Hay U.S. Companies attending this hearing, as well as a subsequent conference on November 17, 2004. Id. at ¶¶ 3, 5. The Court referred the remainder of Schneider's claims, including his amended claims over the Hay U.S. Companies, to the District Court of Frankfurt. Id. at ¶ 5. According to the latest declaration from Schneider's counsel in the German action, Dr. Thomas Thees, Schneider has paid the required filing fees to commence the action in the District Court and all files from the Labor Court have been copied and transferred to that institution so that it can begin to consider the merits of those claims. 3/4/05 Thees Decl. at ¶ 2. Oral argument on the merits of Boller-Bockius' claims in the Frankfurt Labor Court has been scheduled for May 11, 2005. Id. at ¶ 7. FN5. The German Labor Court did retain jurisdiction over one of Schneider's claims related to a consulting agreement between Schneider and Hay Germany. It has stayed any resolution of that claim until the District Court in Frankfurt renders its decision on Schneider's transferred claims. E. Defendants' Motion to Dismiss Or, in the Alternative, to Stay the Instant Case Defendants have moved to dismiss the instant action on a number of grounds. First, Defendant Schneider alleges that the forum selection clause contained in his Employment Agreement is binding on all Plaintiffs, requiring them to litigate their claims in Frankfurt, Germany. Second, both Defendant Schneider and Defendant Boller-Bockius move the Court to dismiss or stay this action in favor of the pending, parallel litigation in Germany under the doctrine of

international comity. Third, both Defendant Schneider and Defendant Boller-Bockius move the Court to dismiss this case on the grounds of forum non conveniens. The Court will address the forum selection clause and international comity grounds in turn. As the Court finds that an analysis under those two grounds resolves the instant dismissal motion, it will not consider the parties' forum non conveniens arguments. II. FORUM SELECTION CLAUSE Defendant Schneider claims that a valid and enforceable forum selection clause requires Plaintiffs to pursue their claims against him in the German court system. Defs.' Mot. at 2. Plaintiffs argue that the forum selection clause is irrelevant to this case, because (1) the claims in this case do not involve any breach of the employment contract and (2) the original signatory to the employment contract, HGIH B.V., is not a party to this action, and no other party, including the Hay U.S. Companies, is bound by the forum selection clause. Pls.' Opp'n at 8. The Supreme Court has held that a valid international forum selection clause should be enforced unless "enforcement is shown by the parties to be `unreasonable' under the circumstances." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). In adopting the holding of The Bremen, the Third Circuit stated that *6 a forum selection clause is presumptively valid and will be enforced by the forum unless the party objecting to its enforcement establishes (1) that it is the result of fraud or overreaching, (2) that enforcement would violate a strong public policy of the forum, or (3) that enforcement would in the particular circumstances of the case result in litigation so seriously inconvenient as to be unreasonable. Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190, 202 (3d Cir.) cert denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983). Plaintiffs do not assert that the forum selection clause is the result of fraud or overreaching nor that enforcement would violate public policy. Plaintiffs' arguments are grounded in the last