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Rosado v. Tam Lending Center, Inc.

United States District Court, D. New Jersey

March 21, 2019

Raymond ROSADO, JR., Plaintiff,



         This matter is before the Court on the motion of Defendants TAM Lending Center (“TAM”) and Philip Valianti to strike Plaintiff's jury demand and to transfer venue to the Western District of North Carolina under 28 U.S.C. § 1404(a). (Doc. No. 4.) Because the Court GRANTS Defendants' motion to transfer, it does not reach the jury demand issue, which the transferee court should decide.

         I. BACKGROUND

         TAM's former employee, Plaintiff Raymond Rosado, filed this whistleblower action alleging that Defendants violated the New Jersey Conscientious Employee Protection Act (“CEPA”) by terminating him after he reported illegal activity to his supervisors. (Doc. No. 1 (“Compl.”) at ¶¶ 30-40.) Plaintiff is a citizen of Pennsylvania; TAM is a lending company incorporated and with its principal place of business in New Jersey; Valianti, TAM's Senior Vice President, is a citizen of New Jersey. (Id. at ¶¶ 3-5, 12.)

         TAM hired Plaintiff around February 2017 as a mortgage loan officer. (Id. at ¶ 14.) For most of his employment, Plaintiff worked in TAM's New Jersey location. (Id. at ¶ 15.) When Defendants hired Plaintiff, they placed him on a team with branch manager Douglas Webb, who worked in Pennsylvania, even though Plaintiff worked in New Jersey. (Id. at ¶ 17.)

         Plaintiff signed an employment contract with Defendants. (Doc. No. 4-3, Ex. A (“Agreement”).) The Agreement contains several relevant provisions, including a governing law clause (id. at § 7.8), a jury waiver clause (id. at § 7.10), a class action waiver clause (id. at § 7.11), and most importantly, a forum selection clause (id. at § 7.9). Although the clauses are addressed more fully below, the forum selection clause reads, in full:

Employee agrees that any litigation concerning this Agreement, the activities contemplated hereby, and any aspect of the employment relationship between Employer and Employee shall be brought in the state or federal courts in or for Mecklenburg County, North Carolina, in any action or proceeding between the Parties and both of the Parties agree to service of process by hand delivery, recognized overnight courier or by certified mail to the addresses set forth for each party.

(Id.) According to Valianti, the parties chose North Carolina as the forum for covered actions because TAM has rented space there since January 2016 and Defendants hired Plaintiff alongside Webb, who originally wanted to work out of TAM's North Carolina branch. (Doc. No. 4-3, Ex. B, (“Valianti Cert.”) at ¶¶ 4-7.)

         Plaintiff alleges that Defendants terminated him in February 2018 because while working for TAM, he learned of and complained to multiple levels of management about TAM's use of unlawfully obtained customer data. (Compl. at ¶¶ 33, 36-40.) Specifically, Plaintiff alleges that through his own research, observations, directives he received, and interactions with coworkers and management, he realized that Defendants used unlawfully obtained proprietary and confidential data of other businesses to contact customers. (Compl. at ¶¶ 35-36.) Plaintiff also alleges that after he complained, TAM transferred him to Pennsylvania, where TAM forced him to illegally work in an unlicensed office despite objection. (Id. at ¶¶ 23-32, 36.)

         After his termination, Plaintiff brought this case, invoking this Court's diversity jurisdiction. (Id. at ¶ 2.) The Complaint contains a single claim under CEPA for wrongful termination retaliation against Defendants. (Id. at ¶¶ 41-43.) Pointing to the Agreement's jury waiver and forum selection clauses, Defendants now move to: (1) transfer this action to the Western District of North Carolina, and (2) strike the Complaint's jury demand. (Doc. No. 4.) Because the Court grants Defendant's first request, it need not reach the second.


         Plaintiff opposes transfer for three unavailing reasons. First, Plaintiff claims that the forum selection clause does not apply to his claim under the CEPA statute because the clause applies only to contract-based claims. (Doc. No. 5 (“Pl.'s Br.”) at 11-15.) Second, Plaintiff claims that the clause is unenforceable. (Id. at 15-18.) Third, Plaintiff claims that transfer is not supported under 28 U.S.C. § 1404(a). (Id. at 18-20.) The Court addresses each argument in turn.

         A. Scope of Forum Selection Clause

         “A scope-based challenge to the applicability of a forum-selection clause presents a quintessential question of contract interpretation.” Reading Health Sys. v. Bear Stearns & Co., 900 F.3d 87, 98 (3d Cir. 2018). Contract construction is usually a matter of state law, and federal courts sitting in diversity analyze the forum state's choice of law rules to determine which state's law applies to construe the contract provision. See Collins v. Mary Kay, Inc., 874 F.3d 176, 182-83 (3d Cir. 2017). Under New Jersey's choice of law rules, courts ordinarily uphold the parties' contractual choice to be governed by the laws of a particular state unless: (1) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice; or (2) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which would be the state of the applicable law in the absence of an effective choice of law by the parties. Id. at 183-84.

         Here, the Agreement contains a “governing law” clause, which states that the “Agreement and any disputes arising out of or relating to its terms shall be governed” under North Carolina law. (Agreement at § 7.8.) Yet neither party performs a choice of law analysis. Nor do they dispute which state's law applies to determine the forum selection clause's scope. Instead, they both cite and make arguments under New Jersey law. Like both parties, the Court will apply New Jersey law to construe the forum selection clause. But the Court finds-and assumes ...

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