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Caroline Mcdonald v. the Amacore Group

June 20, 2012


On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-0790-09.

Per curiam.


Argued October 4, 2011

Before Judges Carchman, Fisher and Nugent.

On leave granted, defendant The Amacore Group, Inc. (Amacore) appeals from the Law Division order denying its motion to dismiss plaintiff Caroline McDonald's complaint for lack of personal and subject matter jurisdiction, and from the order denying reconsideration of that motion.*fn1 Amacore based its motion to dismiss, in part, on a clause in its employment agreement with plaintiff; a clause that Amacore asserted was a forum selection clause vesting in Florida courts exclusive jurisdiction over the parties' disputes. In denying the motion, the trial court concluded that the clause was ambiguous and that its validity and enforceability could not be decided on a motion to dismiss the complaint. We disagree with the trial court's determination, and conclude that the clause is a valid and enforceable forum selection clause. Accordingly, we reverse.


The events underlying the parties' dispute occurred in 2007. Plaintiff lived in Hoboken and worked in New York City for Hewlitt-Packard. Amacore, a Delaware corporation with its principal place of business located in Florida, was in the business of selling health-related insurance products and discount benefit programs. Defendant Clark A. Marcus held the titles and offices of Chief Executive Officer and General Counsel; defendant Jay Shafer held the title and office of President; and defendant Jerry Katzman, M.D., held the title and office of Chief Medical Officer. Marcus had resided in Florida with his family for twenty years and Shafer had resided in Florida with his family for forty-nine years. Katzman resided in New Jersey.

In January 2007, a mutual friend of plaintiff and Marcus suggested that plaintiff would be suitable for an executive position with Amacore. As a result, Marcus and Katzman met with plaintiff in New York City on April 12 and 13, 2007. During the April 13 meeting, Marcus and Katzman introduced plaintiff to third-parties as Amacore's new chief operating officer. During the ensuing months, the parties negotiated plaintiff's employment contract with Amacore (the Agreement), which she and Marcus signed on May 21, 2007.

Before signing the Agreement, plaintiff flew to Amacore's Florida headquarters to meet with Amacore's employees. Except for the two meetings in New York and the third in Florida, the parties' negotiations took place by telephone, mail, and email.

The exchanges took place between Amacore's Florida headquarters, plaintiff's New Jersey home, and Katzman's New Jersey home. Plaintiff signed the Agreement while in her home and subsequently performed her job duties primarily from her home, for which she received a "home office adjustment."*fn2

The terms of the Agreement, in pertinent part, required Amacore to employ plaintiff as its chief operating officer for a period of three years, subject to earlier termination for "cause," or other circumstances specified in the Agreement not relevant here. If her employment were terminated for cause, plaintiff was to be given two weeks notice identifying the cause and a thirty-day period to cure. Paragraph two of the Agreement also provided that plaintiff was to receive a sign-on bonus of 300,000 shares of Amacore stock. Paragraph nine of the Agreement, entitled "GOVERNING LAW," governed claims or disputes "arising from the subject matter" of the Agreement.

Amacore did not issue to plaintiff a sign-on bonus of 300,000 shares of stock when she commenced full-time employment. On July 25, 2007, two months after the parties signed the Agreement, Amacore terminated plaintiff's employment. Plaintiff claims that Amacore and the individual defendants terminated her employment in retaliation for her engaging in protected whistle-blowing activity. Defendants assert that, "[s]hortly after beginning her employment with Amacore, [p]laintiff engaged in certain actions that led to an immediate loss of confidence in her ability to perform the functions of an officer of Amacore."

On February 25, 2009, plaintiff filed a six-count complaint in the Superior Court of New Jersey, Union County, alleging in four counts that Amacore had breached the Agreement by refusing to issue the stock; breached the Agreement by terminating her without cause; breached the implied covenant of good faith and fair dealing; and wrongfully discharged her in violation of Florida's whistle-blower statute. In another count, plaintiff alleged that all four defendants had wrongfully discharged her under New Jersey common law. In the final count, plaintiff alleged that Amacore, Marcus, and Katzman had fraudulently induced her to "leave secure prior employment and accept employment with Amacore" based upon the terms of the Agreement, particularly, the provisions that stated that plaintiff would receive a sign-on bonus and that she would be compensated for the entire three-year term unless her employment were terminated for cause. Plaintiff asserted that defendants had no intention of honoring those promises and representations.

On April 6, 2009, defendants removed the case to the United States District Court for the District of New Jersey. On December 14, 2009, the District Court remanded the case sua sponte ...

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