Selim v. Fivos Inc

THE HONORABLE JOHN C. COUGHENOUR [6] UNITED STATES DISTRICT COURT [7] WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 NORA SELIM, CASE NO. C22-1227-JCC [10] Plaintiff, ORDER [11] v. [12] 13 FIVOS, INC., a Delaware Corporation, 14 Defendant. [15] This matter comes before the Court on Plaintiff’s partial motion for summary judgment [16] on the issue of whether Egyptian labor law applies to her claim. (Dkt. No. 25.) Having [17] thoroughly considered the briefing and the relevant record, and finding oral argument [18] unnecessary, the Court hereby DENIES the motion for the reasons explained below. [19] I. BACKGROUND [20] In 2009, Plaintiff Nora Selim was hired by Medstreaming, LLC., a Washington based [21] subsidiary of Defendant Fivos, Inc., a Delaware corporation based in New Hampshire. (Dkt. No. [22] 34 at 2.) At the time of her recruitment and hiring, Ms. Selim lived in Dubai, United Arab [23] Emirates. (Dkt. No. 25 at 2.) Shortly thereafter, she moved to Cairo, Egypt, where she helped [24] establish a local affiliate named “Medstreaming Egypt” (“MSE”). (Id.) MSE employed and paid [25] all of Defendant’s Egyptian employees, however, by her own admission Ms. Selim continued to [26] 1 be employed and paid by Defendant. (Id.) Throughout her employment in Egypt, Ms. Selim 2 reported directly to supervisors based in the United States, (id. at 3); she submitted a Washington 3 address in her I-9 forms and verified her eligibility to work in the United States, (id.); she 4 maintained her address in Washington for payroll purposes and filed income taxes from that 5 address, (id. at 3); and she signed at least two contracts that included choice of law provisions 6 selecting Washington law. (Id.) Moreover, Defendant paid federal and state-based employer 7 deductions on Ms. Selim’s payroll such as federal income tax, social security, Medicare, and 8 Washington Paid Family and Medical Leave Insurance premiums. (Id.) 9 Defendant terminated Ms. Selim’s employment in March 2022, following disputed 10 claims about her performance. (Dkt. No. 25 at 2–3.) Ms. Selim alleges various labor violation 11 claims, including unjustified termination, lack of proper notice, and unpaid wages. (Id. at 8–11.) 12 At issue in the present motion is whether Egyptian or Washington law should apply to these 13 claims. 14 II. DISCUSSION 15 A. Legal Standard 16 “The court shall grant summary judgment if the movant shows that there is no genuine 17 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 18 Civ. P. 56(a). In making such a determination, the Court must view the facts in the light most 19 favorable to the nonmoving party and draw justifiable inferences in that party’s favor. Anderson v. 20 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly 21 made and supported, the opposing party “must come forward with ‘specific facts showing that 22 there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 23 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). Conclusory, non-specific statements in affidavits 24 are not sufficient, and “missing facts” will not be “presumed.” Lujan v. Nat’l Wildlife Fed’n, 497 25 U.S. 871 , 888–89 (1990). The facts relied on must be admissible under rules governing admission 26 of evidence generally. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542 , 1 1555 (9th Cir. 1990). Ultimately, summary judgment is appropriate against a party who “fails to 2 make a showing sufficient to establish the existence of an element essential to that party’s case, and 3 on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317 , 4 322 (1986). 5 B. Discussion 6 This Court, sitting in diversity, applies Washington’s choice-of-law rules. See Downing v. 7 Abercrombie & Fitch, 265 F.3d 994, 1005 (9th Cir. 2001). Those rules provide that the Court 8 must engage in a conflict-of-laws analysis if an actual conflict exists between the laws or 9 interests of Washington and the laws or interests of another state. Erwin v. Cotter Health 10 Centers, 167 P.3d 1112, 1120 (Wash. 2007). “When the result of the issues is different under the 11 law of the two states, there is a real conflict.” Id. When a conflict exists, and the parties do not 12 preselect the law to govern an issue, Washington’s choice of law rules direct courts to determine 13 which state has the “most significant relationship” to a given issue, based on the factors outlined 14 in Restatement (Second) of Conflict of Laws § 6 (1971) (hereinafter “Restatement”). See Singh 15 v. Edwards Lifesciences Corp., 210 P.3d 337, 340 (Wash. Ct. App. 2009) (citing Johnson v. 16 Spider Staging Corp., 555 P.2d 997, 1000 (Wash. 1976)). 17 Both parties agree that the relevant laws in Washington and Egypt conflict. (Dkt. No. 34 18 at 12.) But they disagree on whether they preselected a specific forum’s law to govern their 19 dispute. Defendant claims that it selected Washington law based on choice of law provisions 20 found in the “Confidentiality and Inventions Assignment” and “Non-Compete and Non21 Solicitation” agreements that Ms. Selim was required to sign in 2015. (Dkt. No. 44 at 10.) 22 Although neither of these contracts are directly at issue here, they indicate the expectations that 23 Washington would govern the parties’ disputes. This is persuasive given the lack of any 24 contradictory provisions in any other agreements between the parties that indicate Egyptian law 25 should apply. See Nelson v. Kaanapali Properties, 578 P.2d 1319, 1321 (1978). 26 However, Ms. Selim rightfully notes that these choice of law provisions do not directly 1 govern the claims at issue, because they were limited in scope to their respective agreements. 2 Accordingly, although they are persuasive, they are not dispositive. To reach a conclusion, the 3 Court must determine whether Washington or Egypt has a more significant relationship to Ms. 4 Selim’s claims based on the following factors: “(a) the place where the injury occurred, (b) the 5 place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, 6 place of incorporation and place of business of the parties, and (d) the place where the 7 relationship, if any, between the parties is centered.” Singh, 210 P.3d at 340 (2009) (citing 8 Johnson, 555 P.2d 997, 1000). The “approach is not merely to count contacts, but rather to 9 consider which contacts are most significant and to determine where these contacts are found.” [10] Id. 11 Ms. Selim’s claims all relate to the termination of her employment. (Dkt. No. 25 at 8.) 12 Although Ms. Selim worked in Egypt, the decisions leading up to her termination, and the 13 alleged violations that occurred in tandem with that decision, were based entirely on conduct that 14 occurred in the United States. (Dkt. No. 34 at 13.) This is where Defendant is based, and where it 15 made the decision to deny Ms. Selim’s severance, holiday pay, and other compensation. (Id.) 16 Therefore, the Court finds that the alleged injury occurred and was caused to occur by decisioned 17 made in the United States. (Id.) 18 The next factors—the domicile, residence, nationality, place of incorporation and place of 19 business of the parties, all weigh in favor of Washington. Although Ms. Selim lived in Egypt, she 20 filed I-9 Forms and tax returns in the United States indicating that she was a Washington 21 resident. (Id.) Moreover, she received directions, supervision, payment, and finally notice of 22 termination, from the United States. (Id. at 14.) This is consistent with Ms. Selim’s own 23 concession that she was employed by a United States company, not its Egyptian affiliate. And as 24 previously stated, both Defendant and its subsidiary are Washington residents. Accordingly, the 25 Court finds that the factors relevant to the “most significant relationship” test weigh in favor of 26 Washington. 1 Ms. Selim concedes that the “relevant contacts are Egypt and Washington State,” (Dkt. 2 No. 25 at 12.) However, she argues in a brief conclusory fashion that Egypt has “the more 3 significant relationship to claims in dispute.” (Id. at 13.) In support, she cites to various Egyptian 4 labor law sources to argue it is in Egypt’s interest to govern labor disputes that occur in its 5 territory. (Id. at 13–15.) Even if this were true, it ignores the relevant factors outlined in Singh, 6 and the fact that the United States in general, and Washington in particular, have a strong interest 7 in regulating employers’ conduct towards extraterritorial employees. Sampson v. Knight 8 Transportation Inc., 2018 WL 2984825 , at slip op. 6 (W.D. Wash. 2018.) To rule otherwise 9 would potentially deprive extraterritorial workers from employment protections. Thus, although 10 the Court concludes that some aspects of the injury may have occurred in Egypt, due to 11 Washington’s interest in protecting employees from employment related violations, the public 12 policy factor weighs in favor of Washington. 13 Accordingly, the Court finds that Washington law has the most significant relationship to 14 Ms. Selim’s claim. See Singh, 210 P.3d at 340–41. 15 III. CONCLUSION 16 For the foregoing reasons, Plaintiff’s motion for partial summary judgment (Dkt. No. 25) 17 is DENIED. The Court concludes that Washington law governs Plaintiff’s claims. [18] DATED this 2nd day of May 2023. [20] A [23] John C. Coughenour 24 UNITED STATES DISTRICT JUDGE