OPINION AND ORDER
This action arises out of claims by Plaintiff Brian Anthony Martinez against his former employer, Bloomberg LP (“Bloom-berg”), and two Bloomberg employees, Andrew Lack and Catriona Henderson. Specifically, in his complaint, filed on October 24, 2011, Plaintiff asserts a claim against Defendant Bloomberg for unlawful termination in violation of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12111 et seq., and claims against all Defendants for violations of the New York State Human Rights Law (“NYSHRL”), 15 N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law (“NYCHRL”), 8 N.Y.C. Admin. Code § 8-502(a) et seq. Relying on a forum selection clause in the employment agreement between Martinez and Bloomberg, Defendants Bloomberg and Lack now move, pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure, for dismissal of the complaint in its entirety for improper venue. In the alternative, Defendants Bloom-berg and Lack move, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for dismissal of the NYSHRL and NYCHRL claims for lack of subject matter jurisdiction on the ground that the alleged discrimination had no “impact” within New York.
BACKGROUND
Where, as here, a defendant moves to dismiss for improper venue pursuant to Rule 12(b)(3), a court may consider evidence outside the four corners of the complaint, including affidavits and other documentary evidence. See, e.g., Gulf Ins. Co. v. Glasbrenner,
Bloomberg is a privately held financial software, media, and data company with its principal place of business in New York City. (Compl. ¶ 2). At all times relevant to this action, Defendant Lack was the chief executive officer of Bloomberg’s Multimedia Division, and Defendant Henderson was the regional head of Bloomberg’s human resources department in the United Kingdom. (Id. ¶¶ 3^1). In September 1999, Martinez began working for Bloom-berg as a freelance producer, and in April 2000, he began full-time employment in the company’s New York office. (Id. ¶¶ 10-11). In early 2005, after a three-year stint in Bloomberg’s Tokyo office, Martinez was reassigned to Bloomberg’s London office. (Id. ¶ 12).
In connection with his relocation to the United Kingdom, Martinez signed a new employment contract with Bloomberg’s London office on February 21, 2005 (the “Agreement”), (Defs.’ Mem. of Law in Supp. of Mot. to Dismiss (“Defs.’ Mem.”) 3). To the extent relevant here, the Agreement expressly designated Bloom-berg’s London office as Martinez’s “normal place of business” (Asman Deck Ex. 1 § 1.2); provided for circumstances under which Martinez’s employment could be terminated (id. § 10); and set forth grievance procedures that governed the employment relationship. (Id. § 9). Most relevant for present purposes, the Agreement also contained a forum selection and choice of law provision. (Id. § 14.1). The clause provided, in relevant part, that the Agreement “shall be interpreted and construed in accordance with English law and any dispute arising hereunder shall be subject to the exclusive jurisdiction of the English courts.” (Id. § 14.1).
Martinez was promoted several times during his tenure at Bloomberg, eventually becoming Managing Director of Bloom-berg Television International for Asia, Europe, the Middle East, and Africa, but in November 2010, his career “hit a brick walk” (Compl. ¶¶ 17, 21). A month or so earlier, Martinez, who is gay, had revealed to Henderson that he had been physically abused by his domestic partner. (Id. ¶¶ 22-23). After meeting with two separate doctors to receive treatment for his injuries, in late November 2010, Martinez met with Lack, who insisted that Martinez take a leave from work. (Id. ¶¶ 24, 27-29). Martinez had already planned to be on vacation from December 16, 2010, until January 3, 2011, but at Lack’s insistence, he took an unofficial leave of absence beginning on November 29, 2010. (Id. ¶ 30). In mid-December, while on leave, Martinez received the results of his annual company review. Although Martinez’s performance was rated “exceptional,” his bonus was not consistent with Bloomberg’s historical pay practice or with his 2010 bonus. (Id. ¶¶ 34-35).
On January 4, 2011, Martinez returned to work. (Id. ¶ 36). The following month, Henderson and Lack met with Martinez and expressed concern that Martinez was “unwell.” (Id. ¶¶ 43^14). According to the complaint, Lack and Henderson suggested to Martinez that the abuse he suffered may have “seriously impacted” his ability to perform his job responsibilities. (Id. ¶ 47). Henderson recommended that Martinez take additional medical leave for at least thirty days, which he did, beginning on February 15, 2011. (Id. ¶¶ 50, 53). In late March 2011, Martinez’s doctor cleared him to return to work, but on April 1, 2011, Henderson told Martinez that it “may be better” for him to wait until May to return to work. (Id. ¶¶ 54, 55).
It appears that Martinez never returned to Bloomberg. (See Asman Deck Ex. 2). While on medical leave, Martinez learned
On October 24, 2011, Plaintiff filed the complaint in this case against Defendants Bloomberg, Lack, and Henderson, asserting a claim against Bloomberg under the ADA and claims against all three Defendants under the NYSHRL and NYCHRL. Three days later, Martinez filed a separate claim with the United Kingdom’s Employment Tribunal (“UK Employment Tribunal”), challenging the legality of his termination under English law (the “UK Proceeding”). (Asman Decl. ¶ 18). In his complaint in the UK Proceeding, Martinez alleged unfair dismissal, unlawful deduction of wages, and detrimental dismissal because of a protected disclosure. (See id. ¶ 19; id. Ex. 8). Martinez did not assert any claims for discrimination, despite his attorney’s earlier e-mail to Bloomberg and the fact that the claim form he used to initiate the action explicitly asked whether he wished to assert claims for discrimination based on, among other things, sexual orientation or disability. (See id. ¶ 20; id. Ex. 8, at 9).
In January 2012, the UK Employment Tribunal held a “Directions Hearing,” which is similar to a status conference, to discuss various procedural and scheduling matters in the UK Proceeding. (Defs.’ Mem. 16). Although Defendants Bloom-berg and Lack had notified Plaintiff and this Court months earlier that they intended to move to dismiss the current action on the basis of the forum selection clause (Docket No. 4), at the Directions Hearing, Martinez did not request leave to add any discrimination claims. (Defs.’ Mem. 16). He did, however, submit an application to stay the UK Proceeding at least until the instant motion to dismiss was decided by this Court. (Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n Mem.”) 9-10). This application was denied and the UK Proceeding was scheduled to proceed on an expedited basis, with a hearing set for April 2012. (Id. at 10). Citing the prohibitively high cost of pursuing his claims in the United Kingdom, Martinez subsequently withdrew his claims in the UK Proceeding. (Id.).
DISCUSSION
Defendants Bloomberg and Lack contend that Plaintiffs claims should be dismissed because the Agreement’s forum selection clause required Plaintiff to bring this action in the United Kingdom. Plaintiff does not dispute that the forum selection clause is valid and, by its terms, mandatory. Instead, he argues that the clause does not apply to his claims of discrimination and that, if it does apply to such claims, application of the clause in this case would be unreasonable or unjust. The Court agrees with Defendants.
A. Applicable Law
As the Supreme Court and the Second Circuit have made clear, there is a strong federal policy in favor of enforcing forum selection clauses. See, e.g., M/S Bremen v. Zapata Off-Shore Co.,
The Second Circuit has adopted a four-part test to determine whether an action should be dismissed on the basis of a forum selection clause. See Phillips,
B. Analysis
In the present case, there is no dispute that the first two parts of the test are met. The Agreement between Martinez and Bloomberg mandates that “any dispute arising hereunder shall be subject to the exclusive jurisdiction of the English courts” (Asman Deck Ex. 1 § 14.1), and Plaintiff concedes that the provision was “reasonably communicated” to him. (PL’s Mem. of Law 10). Instead, Martinez contends, first, that his discrimination claims are not subject to the forum selection clause because they do not “aris[e]” under the Agreement and, second, that enforcement of the forum selection clause would be unfair or unreasonable under the circumstances. The Court will address each argument in turn.
1. Martinez’s Claims Are Subject to the Forum Selection Clause
As an initial matter, the Court must determine what law governs interpretation of the forum selection clause. Determining the scope of a forum selection
The applicability of English law is significant in this case for two reasons. First, whereas a statutory employment discrimination claim does not depend on the existence of a contract under American law, see, e.g., Cronas v. Willis Grp. Holdings, Ltd., No. 06 Civ. 15295(GEL),
Second, under English law, forum selection clauses are construed very broadly. In Fiona Trust & Holding Corporation v. Privalov, [2007] EWCA (Civ) 20, [5], for example, the Court of Appeal considered a contractual clause referring “any dispute arising under this charter” to arbitration. Lord Justice Longmore, writing for the Court, concluded that “[although in the past the words ‘arising under the contract’ have sometimes been given a narrower meaning, that should no longer continue to be so.” Id. ¶ 18. Instead, the Court held broadly that, under English law, “any jurisdiction or arbitration clause in an international commercial contract should be liberally construed. The words ‘arising out of should cover ‘every dispute except a dispute as to whether there was ever a contract at all’ ....” Id. (citation omitted) (emphasis added). The House of Lords upheld this determination on appeal, holding that unless the language of an arbitration clause makes clear that certain questions are intended to be excluded from an
Significantly, although the clause at issue in Fiona Trust pertained to arbitration, the Court’s language and reasoning extended to forum selection provisions as well. Lord Justice Longmore referred expressly to “any jurisdiction or arbitration clause.” Fiona Trust, [2007] EWCA (Civ) 20, [18]. And in the House of Lords, Lord Hope of Craighead explained:
The proposition that any jurisdiction ... clause in an international commercial contract should be liberally construed promotes legal certainty. It serves to underline the golden rule that if the parties wish to have issues as to the validity of their contract decided by one tribunal and issues as to its meaning or performance decided by another, they must say so expressly. Otherwise they will be taken to have agreed on a single tribunal for the resolution of all such disputes.
Fiona Trust, [2007] UKHL 40, [26]; see also Skype Techs. SA v. Joltid Ltd., [2009] EWHC (Ch) 2783, [14]-[17] (noting that Lord Hope “clearly regarded [forum selection] clauses and arbitration clauses as serving similar purposes with the result that their interpretation should be approached in the same way”). In the wake of Fiona Trust, therefore, English courts have construed forum selection clauses such as the one in this case “widely and generously.” UBS AG v. HSH Nordbank AG, [2009] EWCA (Civ) 585, [60],
Although the question is a close one, these two factors — namely, the contractual basis for employment discrimination claims under English law and the broad construction given to forum selection clauses by English courts — compel the conclusion that Martinez’s claims are indeed subject to the Agreement’s forum selection clause.
In contending otherwise, Martinez makes several arguments. First, implicitly conceding that his claims would be subject to the forum selection clause if the Court’s holding in Fiona Trust applied, Martinez contends that Fiona Trust is limited to international commercial contracts and does not apply in the employment
Autoclenz Ltd. v. Belcher and Others, [2011] UKSC 41, upon which Martinez relies (Pl.’s Opp’n Mem. 15; Declaration of Plaintiffs Expert Louise Skehan ¶¶ 32-33), does not suggest otherwise. In that case, a suit by car washers against their putative employer for payment, of the minimum wage, the Court did say that “the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part.” Autoclenz, [2011] UKSC 41, [35]. The issue in Autoclenz, however, was not how to interpret the given terms of a contract, let alone a forum selection clause, but rather how to determine what the terms of the contracts at issue were in the first instance. Here, there is no dispute that the parties agreed to the forum selection clause as written; the only dispute is how the clause should be interpreted, and Autoclenz sheds no light on that question. Moreover, as the very existence of a clause governing the choice of law and forum selection makes clear, the Agreement at issue in this case — between a multinational corporation and a sophisticated international businessman who eventually became Managing Director of Bloomberg Television International for Asia, Europe, the Middle East, and Africa — is, in many respects, closer to the sort of international commercial contract considered in Fiona Trust than it is to the car washer contracts considered in Autoclenz.
Next, citing cases in which courts have held that parties may not deprive the UK Employment Tribunal of jurisdiction over employment discrimination claims by agreeing to arbitration, Plaintiff argues that “it is highly unlikely that an English court, would in this instance defer to the contracting parties” by interpreting the forum selection clause to require that his discrimination claims be brought in the England. (PL’s Opp’n Mem. 14). As a
Finally, Martinez contends that his discrimination claims do not “aris[e]” under the Agreement both because they are a creature of statute — namely, the Equality Act — rather than contract and because the Equality Act extends, in some instances, to non-employees, who may bring claims notwithstanding the lack of a contractual relationship. (Pl.’s Opp’n Mem. 12-13), The fact that a claim under the Equality Act is technically a statutory tort, however, does not answer the question of whether it arises under the contract. Cf., e.g., Cfirstclass Corp. v. Silverjet PLC,
2. Martinez Has Not Overcome the Presumption of Enforceability
For the foregoing reasons, the forum selection clause in this case is presumptively enforceable and the burden is on Martinez to rebut that presumption. Unlike the third prong of the Phillips test, the question of whether a non-moving party can rebut the presumption of enforceability is governed by federal law even if the contract contains a choice of law provision. See Phillips,
In the present case, Martinez ignores the fact that the Second Circuit has identified these as the only four ways to rebut the presumption of enforceability and therefore makes little or no effort to show how he satisfies one of them. Instead, he argues generically that enforcement of the forum selection clause in the particular facts and circumstances of this case would be “unreasonable or unjust.” (Pl.’s Opp’n Mem. 10). More specifically, he contends that dismissal of his suit would be unreasonable or unjust because (1) the statute of limitations on his English discrimination claims has run (PL’s Opp’n Mem. 2, 17-18); (2) the remedies available under the ADA and English law are materially different, especially insofar as he could recover attorney’s fees under the ADA but not under English law (PL’s Opp’n Mem. 18-19); and (3) he has been “required” to abandon the UK Proceedings “as a consequence of the prohibitive cost of the [UK Proceedings] and the unavailability of prevailing party attorneys fees____” (PL’s Opp’n Mem. 19). These arguments fall far short of carrying Martinez’s burden.
First, it is well established that a forum selection clause “must be enforced” even if that results in “the forfeiture of some claims that could have been brought in a different forum.” Roby,
Finally, the fact that the costs associated with litigating Martinez’s claims in England (and the unavailability of attorney’s fees under English law) led him to voluntarily discontinue his claims there makes no difference to the analysis. The mere fact that litigation in a foreign forum is “more costly or difficult” does not provide a “sufficiently strong showing” that enforcement of a forum selection clause would be unreasonable or unjust. Phillips,
In sum, the hardships cited by Martinez — most of which are a product of his voluntary decisions to litigate his claims simultaneously in both England and here and then to drop the English suit — are not enough to rebut the presumption of enforceability and relieve him from the consequences of his agreement to the forum selection clause. The clause therefore bars Martinez from litigating his claims against Bloomberg in the United States. It also bars him from litigating his claims against Lack and Henderson, even though they are not signatories to the Agreement, as they are “sufficiently close” to Bloom-berg for enforcement of the forum selection clause to be “foreseeable.” In re Optimal U.S. Litig.,
For the reasons set forth above, the motion of Defendants Bloomberg and Lack to dismiss for improper venue (Docket No. 7) is GRANTED and Plaintiffs complaint as to those Defendants is dismissed in its entirety. In light of that ruling, the Court need not, and does not, reach Defendants’ alternative argument that Plaintiffs state law claims should be dismissed.
Plaintiff is hereby ORDERED to show cause in writing, no later than August 24, 2012, why the complaint should not also be dismissed against Henderson for the same reasons or, in the alternative, for failure to serve the complaint in a timely fashion. If the Court does not receive any such communication from the Plaintiff, the Court will dismiss the case altogether without further notice to either party.
SO ORDERED.
Notes
. Although there is no indication in the record that Defendant Lack was served with the complaint, he nonetheless joins in Bloom-berg’s motion. There also is no indication that Defendant Henderson was served with the complaint; she has not joined in the motion.
. Although the Second Circuit has established the test to be used where a party moves to dismiss on the basis of a forum selection clause, it has not settled the question of which provision of Rule 12(b) applies. Compare Phillips,
. Under Rule 44.1 of the Federal Rules of Civil Procedure, determination of the content and effect of foreign law presents a question of law for the Court. See Fed.R.Civ.P. 44.1; see also, e.g., In re Euromepa, S.A.,
. In light of these two factors, Martinez's reliance on Judge Lynch's decision in Cronas (e.g., Pl.’s Opp'n Mem. 1, 2, 12, 17), which held that a Title VII claim was not subject to an arbitration clause governed by New York law, is misplaced.
. In any event, as explained in the affidavit of Defendants’ expert (Taylor Decl. ¶¶ 33-34, 37), the UK Employment Tribunal has the discretion to extend the time under which a discrimination claim may be brought and may allow Martinez to amend his claim to assert his untimely discrimination claims. See, e.g., Chief Constable of Lincolnshire Police v. Natasha Caston, [2009] EWCA (Civ) 1298, [17]-[18],
. If Defendants were correct, and their alternative argument about the lack of a nexus between Plaintiff's claims and New York went to whether the Court had subject matter jurisdiction over his state law claims (Defs.' Mem. 17), the Court would arguably have been required to reach that issue first. See, e.g., Steel Co. v. Citizens for a Better Env't,