Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fenley v. Tulsa Inspection Resources, LLC

United States District Court, D. Kansas

May 1, 2015

Tommy L. Fenley, Plaintiff,
v.
Tulsa Inspection Resources, LLC, Defendant.

MEMORANDUM & ORDER

JOHN W. LUNGSTRUM, District Judge.

Plaintiff Tommy L. Fenley, individually and on behalf of all persons similarly situated, filed suit against defendant Tulsa Inspection Resources, LLC alleging violations of the overtime provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Relying on a forum selection clause in the employment agreement executed by the parties, defendant moves to dismiss plaintiff's complaint for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). As explained in more detail below, the motion is granted.[1]

Background

In his complaint, plaintiff alleges that defendant Tulsa Inspection Resources, LLC provides pipeline inspection services and pipeline integrity services to companies in the oil and gas industry. Plaintiff alleges that he was employed by defendant as a non-exempt welding inspector and that, in that capacity, he performed and reviewed welding inspections on newly-laid gas pipelines in and around Kansas. According to plaintiff, he and all putative collective action members are "blue collar workers who are primarily engaged in manual labor duties" and whose work requires "the utilization of techniques and procedures obtained primarily from industry manuals, standards and codes." Plaintiff alleges that defendant compensated plaintiff and putative collective action members pursuant to a "daily rate" compensation system that did not take into account all hours worked in a workweek and did not account for overtime hours. As alleged in the complaint, defendant paid plaintiff and putative collective action members a "set amount" per each day worked regardless of the number of hours actually worked. Plaintiff alleges that defendant's compensation scheme violates the overtime provisions of the FLSA and that such violations were willful.

In support of its motion to dismiss, defendant relies on a forum selection clause in the employment agreement executed by plaintiff. Specifically, paragraph 4 of the parties' agreement states in full as follows:

Any controversy, claim or litigation arising out of or relating to the employee's duties to the Employer including, but not limited to, any of the rights and obligations set forth in this Employment Agreement shall in all events be determined by the District Court of Tulsa County, Oklahoma which shall have exclusive jurisdiction in the event of any dispute which results in litigation. Further, both parties acknowledge that the Employee was hired by the Employer at the company's offices located in Tulsa, Oklahoma and that the Employee acknowledges and consents that jurisdiction of any dispute arising under this Employment Agreement or in any manner concerning the Employee is proper in Tulsa County, Oklahoma.

Employment Agreement ¶ 4. The employment agreement contains no provisions concerning compensation-overtime or otherwise-for plaintiff's work.

Analysis

Defendant moves to dismiss plaintiff's complaint on the grounds that the forum selection clause in the parties' employment agreement mandates that plaintiff's suit be brought in state court in Tulsa County, Oklahoma.[2] In support of its argument, defendant relies on the following language of paragraph 4:

Any controversy, claim or litigation arising out of or relating to the employee's duties to the Employer including, but not limited to, any of the rights and obligations set forth in this Employment Agreement shall in all events be determined by the District Court of Tulsa County, Oklahoma which shall have exclusive jurisdiction in the event of any dispute which results in litigation.

Plaintiff does not dispute that this portion of paragraph 4 constitutes a mandatory forum selection clause. Indeed, Tenth Circuit case law supports the conclusion that the forum selection clause highlighted by defendant is clearly mandatory. American Soda, LLP v. U.S. Filter Wastewater Group, Inc., 428 F.3d 921, 927 (10th Cir. 2005) (clause was mandatory where it designated Colorado state courts as the "exclusive" forum for the resolution of disputes); Excell, Inc. v. Sterling Boiler & Mech., Inc., 106 F.3d 318, 320 (10th Cir.1997) (clause that stated that "[j]urisdiction shall be in the State of Colorado, and venue shall lie in the County of El Paso, Colorado, " is mandatory because of its specific county designation and use of the obligatory word "shall").

Nonetheless, plaintiff opposes dismissal of his case on the grounds that the mandatory forum selection clause does not cover this dispute-a dispute which plaintiff contends is covered instead by a separate, permissive forum selection clause in paragraph 4 of the agreement. In that regard, plaintiff highlights the sentence immediately following the clause relied upon by defendant:

Further, both parties acknowledge that the Employee was hired by the Employer at the company's offices located in Tulsa, Oklahoma and that the Employee acknowledges and consents that jurisdiction of any dispute arising under this Employment Agreement or in any manner concerning the Employee is proper in Tulsa County, Oklahoma.

Tenth Circuit case law supports plaintiff's characterization of this clause as a permissive forum selection clause, see Excell, 106 F.3d at 321 (providing as an example of a permissive forum selection clause as one in which the parties "agree that in the event of litigation between them, Franchise Owner stipulates that the courts of the State of Michigan shall have personal jurisdiction over its person, that it shall submit to such personal jurisdiction, and that venue is proper in Michigan.") or, more ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.