TigerGraph, Inc. v. Peak

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 TIGERGRAPH, INC., Case No. 20-cv-05489-PJH 8 Plaintiff, 9 v. ORDER DENYING MOTION TO DISMISS AND DENYING MOTION TO 10 BRENDON PEAK, TRANSFER VENUE 11 Defendant. Re: Dkt. No. 9 [13] 14 Before the court is defendant Brendon Peak’s (“defendant”) motion to dismiss and, 15 in the alternative, motion to transfer venue. The matter is fully briefed and suitable for 16 decision without oral argument. Having read the parties’ papers and carefully considered 17 their arguments and the relevant legal authority, and good cause appearing, the court 18 rules as follows. 19 BACKGROUND 20 On July 6, 2020, plaintiff TigerGraph, Inc. (“TigerGraph” or “plaintiff”) filed a 21 complaint (“Compl.”) in San Francisco County Superior Court against defendant asserting 22 one claim for declaratory relief. Dkt. 1-1. Defendant removed the case to federal court 23 on August 6, 2020, (Dkt. 1), and now moves to dismiss the complaint for lack of personal 24 jurisdiction, improper venue, and forum non conveniens, or, in the alternative, moves to 25 transfer the case to the district court for the District of Massachusetts, (Dkt. 9). 26 Plaintiff is a Delaware corporation with its principal place of business in Redwood 27 City, California. Compl. ¶ 1. TigerGraph is a technology company that provides a “graph 1 employee of TigerGraph who resides in Hingham, Massachusetts. Id. ¶ 2. 2 On or about January 9, 2018, TigerGraph offered a letter agreement to defendant 3 for his employment as a regional sales director, which Peak executed the following day. 4 Id. ¶ 6, Ex. A. Under the terms of the letter agreement, defendant’s employment was “at 5 will,” he received a base salary, and was eligible to receive additional commission based 6 on annual sales targets. Id. ¶¶ 7–8. In 2019 and 2020, the parties entered into annual 7 Sales Compensation Plans that provided for Peak’s employee commission plan. Id. ¶ 9, 8 Exs. C, D. Each new annual plan superseded and replaced the previous year’s sales 9 compensation plan. Id. ¶ 11. 10 Due to the COVID-19 pandemic, plaintiff determined that it could not afford to 11 retain its entire workforce and on May 14, 2020, TigerGraph notified defendant that his 12 employment with the company would terminate effective the next day. Id. ¶¶ 13–14. 13 Plaintiff alleges that under the 2020 Sales Compensation Plan, commissions for orders 14 that defendant made before his termination are paid when the customer pays plaintiff. Id. 15 ¶ 16. With the exception of one customer who has yet to pay TigerGraph, TigerGraph 16 alleges that it has paid Peak all commissions owed for customers who have already paid 17 TigerGraph. Id. On June 24, 2020, defendant threatened to file a lawsuit against plaintiff 18 if it would not agree to pay Peak commission on terms different than the Sales 19 Compensation Plans required and for commissions on uncertain potential orders where 20 no actual signed order existed prior to defendant’s termination. Id. ¶ 17. On July 6, 21 2020, plaintiff filed this declaratory relief action for a declaration that Peak has been fully 22 compensated by TigerGraph for all commissions owed to him under the Sales 23 Compensation Plans on accepted orders and Peak is not entitled to future commissions 24 on uncertain potential orders where the orders were obtained by other TigerGraph 25 employees or made and accepted after Peak’s termination. Id. ¶ 20, Prayer for Relief. 26 Separately, on August 10, 2020, defendant filed a complaint against TigerGraph 27 and two of the company’s executives and a related company, GraphSQL, Inc., in the 1 20-cv-11496 (D. Mass.). 2 DISCUSSION 3 A. Legal Standard 4 1. Rule 12(b)(2) 5 The party seeking to invoke a federal court’s jurisdiction bears the burden of 6 demonstrating jurisdiction. Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015). A 7 federal court may dismiss an action under Federal Rule of Civil Procedure 12(b)(2) for 8 lack of personal jurisdiction. When resolving a motion to dismiss under Rule 12(b)(2) on 9 written materials, the court accepts uncontroverted facts in the complaint as true and 10 resolves conflicts in affidavits in the plaintiffs’ favor. Mavrix Photo, Inc. v. Brand Techs., 11 Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). “Federal courts ordinarily follow state law in 12 determining the bounds of their jurisdiction over persons.” Daimler AG v. Bauman, 571 13 U.S. 117 , 125 (2014); see Fed. R. Civ. Proc. 4(k)(1)(a). California’s long arm statute 14 permits exercise of personal jurisdiction to the fullest extent permissible under the U.S. 15 Constitution, therefore, the court’s inquiry “centers on whether exercising jurisdiction 16 comports with due process.” Picot, 780 F.3d at 1211 ; see Cal. Code Civ. Proc. § 410.10. 17 The Due Process Clause of the Fourteenth Amendment “limits the power of a 18 state’s courts to exercise jurisdiction over defendants who do not consent to jurisdiction.” 19 Martinez v. Aero Caribbean, 764 F.3d 1062, 1066 (9th Cir. 2014). Due process requires 20 that the defendant “have certain minimum contacts with it such that the maintenance of 21 the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe 22 Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted) (citations 23 omitted). Under the “minimum contacts” analysis, a court can exercise either “general or 24 all-purpose jurisdiction,” or “specific or conduct-linked jurisdiction.” Daimler, 571 U.S. at 25 121–22 (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 , 919 26 (2011)). 27 2. Rule 12(b)(3) 1 division or district shall dismiss, or if it be in the interest of justice, transfer such case to 2 any district or division in which it could have been brought.” 28 U.S.C. § 1406 (a). If a 3 defendant files a motion pursuant to Federal Rule of Civil Procedure 12(b)(3) to dismiss 4 for improper venue, it is the plaintiff’s burden to establish that venue is properly in the 5 district where the suit was filed. Piedmont Label Co. v. Sun Garden Packing Co., 598 6 F.2d 491, 496 (9th Cir. 1979). In considering a motion to dismiss under Rule 12(b)(3), a 7 court need not accept the pleadings as true and may consider facts outside the 8 pleadings. See Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996). 9 Where venue is improper, a court has discretion to dismiss the case pursuant to 10 Rule 12(b)(3) or transfer the case in the interests of justice to an appropriate jurisdiction 11 under 28 U.S.C. § 1406 (a). See King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992) 12 (per curiam). 13 3. 28 U.S.C. § 1404 14 “For the convenience of parties and witnesses, in the interest of justice, a district 15 court may transfer any civil action to any other district or division where it might have 16 been brought . . . .” 28 U.S.C. § 1404 (a). The party moving for transfer for the 17 convenience of parties and witnesses the burden of demonstrating transfer is 18 appropriate. Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 19 1979). In considering a § 1404(a) motion to transfer, the court must look at each of the 20 enumerated factors—whether the action could have been brought in the proposed 21 transferee district, the convenience of the parties, the convenience of the witnesses, and 22 the interests of justice. Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985). 23 If the action could have been brought in the transferee venue, the court then must 24 determine if the defendant has made a “strong showing of inconvenience to warrant 25 upsetting the plaintiff‘s choice of forum” by considering private factors relating to “the 26 convenience of the parties and witnesses” and public factors relating to “the interest of 27 justice,” including “the administrative difficulties flowing from court congestion and [the] 1 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (internal quotation marks 2 omitted). 3 Courts in this district commonly examine the following factors to determine 4 convenience and fairness under § 1404(a): (1) the plaintiff’s choice of forum, (2) the 5 convenience of the parties, (3) the convenience of the witnesses, (4) the ease of access 6 to the evidence, (5) the familiarity of each forum with the applicable law, (6) the feasibility 7 of consolidation with other claims, (7) any local interest in the controversy, and (8) the 8 relative court congestion and time to trial in each forum. Williams v. Bowman, 157 F. 9 Supp. 2d 1103, 1106 (N.D. Cal. 2001) (citation omitted); see Jones v. GNC Franchising, 10 Inc., 211 F.3d 495 , 498–99 (9th Cir. 2000). Courts may examine all these factors, but 11 “[n]o single factor is dispositive.” Ctr. for Biological Diversity v. Kempthorne, 2008 WL 12 4543043, at *2 (N.D. Cal. Oct. 10, 2008) (citing Stewart Org., Inc. v. Ricoh Corp., 487 13 U.S. 22, 29 (1988)). The weighing of the factors for and against transfer is within a trial 14 court’s discretion. Ventress v. Japan Airlines, 486 F.3d 1111, 1118 (9th Cir. 2007) 15 (citation omitted). 16 B. Analysis 17 1. Personal Jurisdiction 18 Defendant argues he is not subject to the court’s personal jurisdiction because he 19 was at all relevant times a resident of Massachusetts and his work for TigerGraph 20 occurred there. Mtn. at 11. Both parties agree that the letter agreement between the 21 parties contains a forum-selection clause but differ as to its applicability in this case. 22 A valid forum-selection clause operates as consent to a court’s personal 23 jurisdiction. As explained by the Supreme Court: 24 because the personal jurisdiction requirement is a waivable right, there are a “variety of legal arrangements” by which a 25 litigant may give “express or implied consent to the personal jurisdiction of the court.” For example, particularly in the 26 commercial context, parties frequently stipulate in advance to submit their controversies for resolution within a particular 27 jurisdiction. Where such forum-selection provisions have been due process. [1] 2 Burger King Corp. v. Rudzewicz, 471 U.S. 462 , 472 n.14 (1985) (citations omitted); 3 S.E.C. v. Ross, 504 F.3d 1130, 1149 (9th Cir. 2007) (“[P]arties may consent to 4 jurisdiction through a forum selection clause in a contract.”). 5 Defendant advances two arguments why the forum-selection clause in his letter 6 agreement is not valid: the complaint seeks declaratory judgment of a different 7 agreement and the letter agreement’s forum-selection clause is unenforceable. 8 a. Whether the Forum-Selection Clause Applies 9 Courts “apply federal law to the interpretation of the forum selection clause,” Doe 1 10 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009) (citing Manetti–Farrow, Inc. v. Gucci 11 Am., Inc., 858 F.2d 509 , 513 (9th Cir. 1988)), and “look for guidance ‘to general principles 12 interpreting contracts,’” id. (quoting Klamath Water Users Protective Ass’n v. Patterson, [13] 204 F.3d 1206, 1210 (9th Cir. 1999)). 14 Defendant argues the letter agreement’s forum-selection clause does not apply 15 because plaintiff is seeking a declaratory judgment under the Sales Compensation Plan 16 agreements, not the letter agreement. Mtn. at 11. According to defendant, the Sales 17 Compensation Plans are standalone agreements that do not contain any forum-selection 18 clause. Id. at 12. Further, the Sales Compensation Plans do not incorporate by 19 reference the offer letter and purportedly supersede all other plans and agreements. Id. 20 Plaintiff responds that a forum-selection clause is a distinct contract in and of itself 21 and is separate from the obligations that the parties owe each other under the remainder 22 of the letter agreement. Opp. at 3. Plaintiff further contends that the Sales 23 Compensation Plans only set the criteria under which defendant could earn a 24 commission, did not create a separate right or entitlement to compensation, and are not 25 distinct, standalone agreements. Id. 26 The letter agreement between the parties provided as follows: 27 This letter agreement and Exhibit A constitute the complete any prior agreements, representations or understandings . . . 1 between you and the Company. This letter agreement may not be amended or modified, except by an express written 2 agreement signed by both you and a duly authorized officer of the Company. The terms of this letter agreement and the 3 resolution of any disputes as to the meaning, effect, performance or validity of this letter agreement or arising out of, 4 related to, or in any way connected with, this letter agreement, your employment with the Company or any other relationship 5 between you and the Company (the “Disputes”) will be governed by California law, excluding laws relating to conflicts 6 or choice of law. You and the Company submit to the exclusive personal jurisdiction of the federal and state courts located in 7 San Francisco County in connection with any Dispute or any claim related to any Dispute. [8] 9 Compl., Ex. A at 11.1 10 There is no dispute between the parties that the letter agreement constituted a 11 valid agreement. If applicable, the letter agreement’s forum-selection clause provides for 12 “exclusive personal jurisdiction” of federal and state courts in San Francisco County in 13 connection with any “Disputes,” which is a defined term. The defined term “Disputes” 14 extends to “the resolution of any dispute[] . . .arising out of, related to, or in any way 15 connected with . . . your employment with the Company or any other relationship 16 between you and the Company.” Id. Thus, the applicability of the forum-selection clause 17 turns on whether this suit arises out of, is related to, or is in any way connected to the 18 letter agreement. 19 “Courts should construe a clause containing the phrases ‘arising under,’ ‘arising 20 out of,’ or similar language narrowly to cover disputes ‘relating to the interpretation and 21 performance of the contract itself.’” Bromlow v. D & M Carriers, LLC, 438 F. Supp. 3d 22 1021, 1027 (N.D. Cal. 2020) (quoting Cape Flattery Ltd. v. Titan Mar., LLC, 647 F.3d 914 , 23 922 (9th Cir. 2011)). However, a clause that covers disputes “relating to” an agreement 24 “is broader and covers any dispute with some ‘logical or causal connection’ to the 25 agreement.” Id. (quoting Yei A. Sun v. Advanced China Healthcare, Inc., 901 F.3d 1081 , 26 1086 (9th Cir. 2018)). “The dispute need not grow out of the contract or require [27] 1 interpretation of the contract in order to relate to the contract.” Sun, 901 F.3d at 1086 2 (citations omitted). 3 Applying here, the forum-selection clause uses the broader language of “related 4 to” and “in any way connected with” and therefore applies to disputes that have a logical 5 or causal connection to the letter agreement. Plaintiff’s declaratory judgment action has 6 such a logical connection to the letter agreement because the declaratory judgment 7 action relates to sales commissions owed in the course of employment between an 8 employee and his former company. This implicates the employment relationship and 9 compensation terms provided for in the letter agreement. Indeed, the definition of a 10 “Disupte[]” includes defendant’s “employment with the Company or any other relationship 11 between you and the Company.” Compl., Ex. A at 11. Therefore, this action falls within 12 the broad definition of a “Dispute[]” and the letter agreement’s forum-selection clause 13 applies to this case. 14 Defendant argues that the Sales Compensation Plans displace the letter 15 agreement because TigerGraph’s complaint seeks adjudication of the parties’ rights and 16 obligations under those Sales Compensation Plans. The court disagrees. While the 17 terms of the Sales Compensation Plans are necessary to plaintiff’s declaratory relief 18 action, the letter agreement is a binding contract and its forum-selection clause applies 19 beyond interpretation of the letter agreement itself. As cited above, a “dispute need not 20 grow out of the contract or require interpretation of the contract in order to relate to the 21 contract.” Sun, 901 F.3d at 1086 . For the reasons stated above, this case falls within the 22 scope of the forum-selection clause. 23 Next, defendant contends that the Sales Compensation Plans superseded the 24 letter agreement. They did not. The Sales Compensation Plans operate on one-year 25 terms, (see id., Ex. C) and “supersede[] and replace[] all other sales compensation plans 26 and/or programs in which sales personnel participate.” Id., Ex. C at 20. Defendant 27 argues that language at the end of the agreement supersedes the letter agreement. The 1 Company concerning compensation are included in this Plan, which supersedes all other 2 plans and agreements.” Id. at 24. Defendant’s reading of the dependent clause at the 3 end of the sentence ignores the limitation preceding it, that is, all agreements concerning 4 compensation are superseded by the current agreement. This reading accords with the 5 language at the beginning of the agreement that the current Sales Compensation Plan 6 supersedes and replaces all other sales compensation plans and/or programs in which 7 sales personnel participate. At the very least, the Sales Compensation Plans do not 8 supersede the forum-selection clause that does not concern compensation. 9 Finally, defendant argues that the Sales Compensation Plans did not incorporate 10 by reference the terms of the letter agreement. Mtn. at 12. This argument is misplaced. 11 The letter agreement governed the general terms of employment, including dispute 12 resolution, between the parties; the Sales Compensation Plans governed annual sales 13 compensation to TigerGraph’s sales employees. Both agreements governed separate 14 (but related) aspects of defendant’s employment and need not be incorporated by 15 reference to apply in this case. As long as the letter agreement was a valid contract 16 between the parties, then its forum-selection clause applies to any “Dispute[]” as that 17 term is defined by the letter agreement. 18 The cases cited by defendant are distinguishable. For example, in KedKad v. 19 Microsoft Corp., 2013 WL 4734022 , at *4 (N.D. Cal. Sept. 3, 2012), the district court 20 determined that an employment agreement between the plaintiff and defendant did not 21 contain a forum-selection clause on its face and did not incorporate by reference a Libyan 22 national law, which itself did not provide for exclusive venue. The court found persuasive 23 the fact that an earlier employment agreement between the parties included an exclusive 24 forum-selection clause, which was then omitted from the operative agreement. See id. 25 Unlike KedKad, defendant’s employment agreement in this case has a forum-selection 26 clause. 27 By their terms, the Sales Compensation Plans did not supersede the letter 1 between the parties. 2 b. Whether the Forum Selection Clause is Unenforceable 3 “Because forum selection clauses are presumptively valid, they should be honored 4 ‘absent some compelling and countervailing reason.’” Murphy v. Schneider Nat’l, Inc., [5] 362 F.3d 1133, 1140 (9th Cir. 2004) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 6 U.S. 1 , 12 (1972)). In Bremen, the Supreme Court recognized three exceptions that 7 renders enforcement of a forum-selection clause unreasonable: (1) “if the inclusion of the 8 clause in the agreement was the product of fraud or overreaching”; (2) “if the party 9 wishing to repudiate the clause would effectively be deprived of his day in court were the 10 clause enforced”; or (3) “if enforcement would contravene a strong public policy of the 11 forum in which suit is brought.” Richards v. Lloyd’s of London, 135 F.3d 1289 , 1294 (9th 12 Cir. 1998) (quoting Bremen, 407 U.S. at 12–13, 15, 18). “The party challenging the 13 clause bears a ‘heavy burden of proof’ and must ‘clearly show that enforcement would be 14 unreasonable and unjust, or that the clause was invalid for such reasons as fraud or 15 over-reaching.’” Murphy, 362 F.3 at 1140 (quoting Bremen, 407 U.S. at 15). 16 In the context of employment agreements, other circumstances may be taken into 17 account including: (1) “any power differentials which may exist between the two parties to 18 the contract,” (2) the educational background of the party challenging the clause, (3) the 19 business expertise of the party challenging the clause, and (4) the “financial ability to 20 bear [the] costs and inconvenience” of litigating in the forum selected by the contract. 21 Murphy, 362 F.3d at 1141 (alteration in original) (quoting Spradlin v. Lear Mgmt. Servs. 22 Co., 926 F.2d 865 , 868–69 (9th Cir. 1991)). 23 Defendant advances several arguments why the forum-selection clause is 24 unenforceable. None are persuasive. First, he argues that the forum-selection clause is 25 unreasonable because it contravenes California’s public policy against extraterritorial 26 application of another state’s law to govern an employment relationship. Mtn. at 14. 27 Defendant is a Massachusetts resident and TigerGraph employed him in Massachusetts. 1 California Labor Code § 925 provides that California employers may not require 2 California employees to sign employment agreements that mandate a venue and choice 3 of law provision outside California and defendant asserts that this policy is analogous to 4 his situation because he is being forced to litigate outside his home forum. Mtn. at 14. 5 A forum-selection clause is unenforceable “if enforcement would contravene a 6 strong public policy of the forum in which suit is brought, whether declared by statute or 7 by judicial decision.” Doe 1, 552 F.3d at 1083 (quoting Bremen, 407 U.S. at 15) 8 (emphasis omitted). Defendant identifies a statute, California Labor Code § 925, yet a 9 plain reading of that provision demonstrates that it does not apply to him because he 10 does not reside or work in California. See Cal. Labor Code § 925 (a) (“An employer shall 11 not require an employee who primarily resides and works in California . . . .”). Defendant 12 cites no other California authority establishing the strong public policy he seeks. Without 13 such authority, none of the cases that found forum-selection clauses to be unreasonable 14 are applicable. See, e.g., Philo v. Giftango LLC, 2013 WL 12097545 , at *5 (S.D. Cal. 15 Feb. 7, 2013) (finding non-compete and non-solicitation covenants are not enforceable 16 against employees based on Cal. Bus. & Prof. Code § 16600 ). 17 Second, defendant argues that it is improper to enforce a forum-selection clause 18 for a forum where neither party has any connection. Mtn. at 14–15. This assertion 19 cannot be credited. Plaintiff’s principal place of business is Redwood City, California, 20 which is within the Northern District of California. The connection between the 21 agreement’s chosen forum and plaintiff’s location is straightforward: both are in this 22 judicial district. See also Civ. L.R. 3-2(d) (providing that all civil actions arising in San 23 Francisco or San Mateo counties shall be assigned to the San Francisco division or the 24 Oakland division). 25 Third, defendant contends that it would be a substantial hardship for him, a 26 Massachusetts resident who was employed in Massachusetts, to litigate in a California 27 court. Mtn. at 15. As stated by the Ninth Circuit, “courts are to consider a party’s 1 reasonableness of enforcing a forum selection clause.” Murphy, 362 F.3d at 1141–42 2 (citing Spradlin, 926 F.2d at 869 ). Defendant avers that it would be a substantial 3 hardship to litigate in California and he does not have the time, money, or ability to travel 4 to California on a periodic basis. Peak Decl. ¶ 16. As an initial matter, defendant’s 5 declaration lacks any specificity that would establishes his inability to prosecute this 6 action in California. Cf. Murphy, 362 F.3d at 1142 (citing declaration where the plaintiff 7 averred that he was unable to work, earned no income, and lived on disability payments). 8 As a practical matter, virtually all pre-trial motion practice can occur remotely, the parties 9 can address any discovery hardships to the court, and any travel to California would likely 10 be limited to a trial.2 Without a more specific showing, defendant cannot overcome the 11 presumptive enforceability of the forum-selection clause. 12 Finally, according to defendant, the forum-selection clause was a product of 13 overreaching because there was no opportunity for negotiation. Mtn. at 15. 14 Overreaching is generally seen as “a ground short of fraud.” Murphy, 362 F.3d at 1141 . 15 In Murphy, the Ninth Circuit found a similar overreaching contention unpersuasive 16 because even if the plaintiff’s “contract was not negotiable, [the plaintiff] had the 17 opportunity to seek work with other employers if he opposed the forum selection clause.” [18] Id. While defendant has filed a declaration stating that he did not have the opportunity to 19 negotiate any of the terms of the letter agreement, (Peak Decl. ¶ 3), plaintiff has provided 20 declarations from its employees that Peak, in fact, negotiated portions of his employment 21 agreement with TigerGraph. Opp. at 7–8 (citing Declaration of Todd Blaschka (“Blaschka 22 Decl.”), Dkt. 12-1, ¶ 3; Declaration of Keiri Riku (“Riku Decl.”), Dkt. 12-2, Ex. A). Thus, as 23 a factual matter, plaintiff has controverted defendant’s contention. As a legal matter, 24 even if defendant’s employment agreement was not negotiable, Murphy indicates that he 25 had a final bargaining chip, which was to seek work with other employers. Thus, [27] 2 The court further notes that in person civil jury trials in the current pandemic are unlikely 1 defendant has not established overreaching on the part of plaintiff. 2 In sum, defendant has not met his “heavy burden of proof” to demonstrate that the 3 forum-selection clause is invalid. Bremen, 407 U.S. at 15. For the foregoing reasons, 4 defendant’s motion to dismiss for lack of personal jurisdiction is DENIED. 5 2. Improper Venue 6 Next, defendant argues that the complaint should be dismissed for improper venue 7 because he resides in a different venue, a substantial part of the events giving rise to 8 TigerGraph’s claims did not occur in this district, and venue is appropriate in the District 9 of Massachusetts. Mtn. at 16. Defendant contends that plaintiff’s declaratory relief arises 10 from Peak’s work for TigerGraph, which occurred in Massachusetts. Id. Further, Peak 11 signed the agreements at issue in Massachusetts. Id. 12 Plaintiff responds that TigerGraph faces liability in this district based on 13 defendant’s claims to entitlement of commissions owed to him. Opp. at 12–13. 14 According to plaintiff, because it has alleged that defendant entered into a contract with 15 TigerGraph and TigerGraph faces harm in this district, that is sufficient to satisfy venue. 16 Id. at 13. 17 Because defendant is a resident of Massachusetts, the only basis for venue in this 18 district is whether a substantial part of the events giving rise to plaintiff’s claims occurred 19 in the Northern District of California. See 28 U.S.C. § 1391 (b)(2). The nature of plaintiff’s 20 claim in this case is for declaratory relief based on annual sales compensation contracts 21 between the parties. The essence of plaintiff’s suit is whether TigerGraph was in breach 22 of or whether it complied with those agreements. 23 To determine venue in cases involving contract disputes, “courts have ‘looked to 24 such factors as where the contract was negotiated or executed, where it was to be 25 performed, and where the alleged breach occurred.’” Richmond Techs., Inc. v. Aumtech 26 Bus. Solutions, 2011 WL 2607158 , at *10 (N.D. Cal., July 1, 2011) (quoting Gulf Ins. Co. 27 v. Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005)). In Richmond Technologies, the court 1 plaintiffs entered into and performed their contracts in this district, even though the 2 defendants “may have executed and performed their contracts in other locations.” Id. 3 Here, it is clear that the parties contemplated defendant to perform his 4 employment in Massachusetts. Compl., Ex. A at 9 (“This is a full-time position located 5 Massachusetts.”). Peak avers that he lived and worked from Massachusetts during the 6 entire term of his employment. Peak Decl. ¶ 2. Thus, it is reasonable to assume that 7 defendant performed under the Sales Compensation Plans from Massachusetts. 8 However, it is also evident that plaintiff TigerGraph performed its portion of the 9 agreements from this district. TigerGraph’s chief operating officer, Todd Blaschka, avers 10 that he is a resident of California and both indirectly and directly managed Peak’s 11 employment as regional salesperson. Blaschka Decl. ¶ 2. He further states that he was 12 involved in determining and implementing annual commission agreements for sales 13 personnel, including for Peak. Id. ¶ 5. Further, TigerGraph’s principal place of business 14 is in this district. Compl. ¶ 1. It is plaintiff’s burden to establish venue, but the 15 declarations and complaint are sufficient to establish that plaintiff’s place of performance 16 under the Sales Compensation Plans was the Northern District of California and a 17 substantial part of the acts or omissions relevant to plaintiff’s claim occurred in this 18 district. Accordingly, venue is appropriate under section 1391(b)(2). 19 In his reply brief, defendant cites several cases for the proposition that “the court 20 first considers what acts or omission by the defendants give rise to the plaintiffs’ claims.” 21 Reply at 12 (quoting United Tactical Sys. LLC v. Read Action Paintball, Inc., 108 F. Supp. 22 3d 733, 754 (N.D. Cal. 2015)). The court takes no issue with this proposition because 23 venue under section 1391(b)(2) may be proper in multiple districts. Doe v. Epic Games, 24 Inc., 435 F. Supp. 3d 1024 , 1039 (N.D. Cal. 2020); see also Gulf Ins. Co., 417 F.3d at 25 356. However, a declaratory judgment action focuses on plaintiff’s acts or omissions 26 because plaintiff is seeking a declaration that it did not breach the agreement between 27 the parties. Thus, the acts or omissions of TigerGraph are relevant to its declaratory 1 For the foregoing reasons, defendant’s motion to dismiss for improper venue is 2 DENIED. 3 3. Forum Non Conveniens 4 Defendant argues that the complaint should be dismissed for forum non 5 conveniens. Mtn. at 17. “The common-law doctrine of forum non conveniens ‘has 6 continuing application [in federal courts] only in cases where the alternative forum is 7 abroad,’ and perhaps in rare instances where a state or territorial court serves litigational 8 convenience best.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 , 9 430 (2007) (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 449, n.2 (1994); and citing 10 14D C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3828, pp. 620– 11 623, and nn. 9–10 (3d ed. 2007)). “For the federal court system, Congress has codified 12 the doctrine and has provided for transfer, rather than dismissal, when a sister federal 13 court is the more convenient place for trial of the action.” Id. (citing 28 U.S.C. § 1404 (a)). 14 In this case, defendant identifies the district court for the District of Massachusetts 15 as the adequate alternative forum. The doctrine of forum non conveniens is not 16 applicable in this situation. For the foregoing reasons, defendant’s motion to dismiss for 17 forum non conveniens is DENIED. 18 4. Motion to Transfer 19 In the alternative, defendant moves to transfer the case to the District of 20 Massachusetts pursuant to title 28 U.S.C. § 1404 (a). Mtn. at 20. A district court 21 considering a § 1404(a) motion should give “controlling weight” to a valid forum selection 22 clause “in all but the most exceptional cases.” Atl. Marine Constr. Co. v. U.S. Dist. Court, [23] 571 U.S. 49, 63 (2013) (citation omitted). A valid forum selection clause changes the 24 court’s usual Section 1404(a) analysis in three ways. First, a plaintiff’s choice of forum 25 merits “no weight.” Id. Second, the court may “consider arguments about public-interest 26 factors only” since the parties stipulated to a particular forum. Id. at 64 . “Third, when a 27 party bound by a forum-selection clause flouts its contractual obligation and files suit in a 1 choice-of-law rules—a factor that in some circumstances may affect public-interest 2 considerations.” Id. (citation omitted). 3 Finally, the party opposing transfer “must bear the burden of showing the public4 interest factors overwhelmingly disfavor a transfer.” Id. at 67 . “A court may consider 5 public interest factors, but such factors will rarely defeat a motion to transfer in the face of 6 a valid, applicable forum-selection clause.” Bromlow, 438 F. Supp. 3d at 1027 (citing 7 Sun, 901 F.3d at 1088 ). 8 Here, defendant first argues that the public factors weigh heavily in favor of a 9 Massachusetts forum because the United States Courts website shows more cases 10 pending per active judgeship in this district than in the District of Massachusetts. Mtn. at 11 17–18. Plaintiff advances no specific argument other than citing the heavy burden of 12 proof to overturn a plaintiff’s choice of forum and a forum-selection clause. Opp. at 14– 13 15. 14 “The relative docket congestion of the respective forums may be relevant to the 15 Court’s decision on whether to transfer.” Martin v. Glob. Tel*Link Corp., 2015 WL 16 2124379, at *6 (N.D. Cal. May 6, 2015) (citing Ctr. for Food Safety v. Vilsack, 2011 WL 17 996343, at *8 (N.D. Cal. Mar. 17, 2011)). “This factor examines whether a trial may be 18 speedier in another court because of its less crowded docket. To measure congestion, 19 courts compare the two fora’s median time from filing to disposition or trial.” Ctr. for Food 20 Safety, 2011 WL 996343 , at *8 (internal quotation marks and citations omitted). 21 Here, court statistics do not clearly point to the District of Massachusetts as the 22 speedier forum. The median time from filing to disposition in civil cases in Massachusetts 23 for the past two years was 36.3 months for the year ending March 31, 2019 and 12.5 24 months for the year ending March 31, 2020. Declaration of Wendy Sugg (“Sugg Decl.”), 25 Dkt. 9-2, Ex. 2. The time from filing to trial for the same two time periods was 30 and 26 32.9 months, respectively. Id. By comparison, the median time from filing to disposition 27 in civil cases in the Northern District of California for the same time periods was 7.9 and 1 the median time from filing to disposition indicates that both trial and/or ultimate 2 disposition are speedier in this district. This factor does not favor transfer. 3 Next, defendant argues that TigerGraph’s claim indisputably involves 4 Massachusetts employment and such a claim should be decided in Massachusetts under 5 Massachusetts law. Mtn. at 18. It is not clear at this stage however that the court would 6 apply Massachusetts law to plaintiff’s declaratory relief claim. The letter agreement 7 between the parties includes a provision that any “Dispute[]” “will be governed by 8 California law, excluding laws relating to conflicts or choice of law.” Compl., Ex. A. at 11. 9 Because the court has determined that the forum-selection clause applies and this action 10 is a “Dispute” as used in the letter agreement, it appears that at least some part of this 11 action will involve application of California law. 12 In this case, the public interest factors cited by defendant do not rise to the level 13 necessary to disrupt the forum-selection clause between the parties. For the foregoing 14 reasons, defendant’s motion to transfer is DENIED. 15 CONCLUSION 16 For the reasons stated, defendant’s motion to dismiss is DENIED and defendant’s 17 alternative motion to transfer is also DENIED. 18 IT IS SO ORDERED. 19 Dated: October 21, 2020 20 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 21 United States District Judge