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Wolfe v. TBG Limited

United States District Court, E.D. Pennsylvania

January 28, 2014

TBG LIMITED, et al. Defendants.




Before the Court are motions to dismiss filed by Defendants TBG Limited, Megger Group Limited, Avo International Inc., Avo Multi-Amp, Peter Frank, Alan Hardie and Heinrich Thyssen (collectively "Defendants"), pursuant to Federal Rule of Civil Procedure 12(b)(6), which seek the dismissal of the complaint on the basis of a forum selection clause contained in the underlying agreement which mandates that Plaintiff's claims are governed by English law and subject to the sole jurisdiction of the courts of England. [ECF 5, 26, and 29]. Gregory Wolfe ("Plaintiff") has filed opposition to said motions [ECF 11, 28 and 31], and these are ripe for consideration. For the reasons stated herein, Defendants' motions to dismiss are granted.


For the purpose of ruling on Defendants' motions to dismiss, this Court accepts, as true, the following relevant allegations in Plaintiff's complaint and attachments:

Plaintiff, a resident of Pennsylvania, is the Vice President and General Manager of Megger Group Limited ("Megger").[1] On March 24, 2010, at a meeting in Norristown, Pennsylvania, Defendant Peter Frank ("Mr. Frank") announced a new bonus plan identified as a Long Term Incentive Plan (the "Plan") offered to the Megger senior management team, which included Plaintiff, to encourage them to increase revenue, profitability, and stock value at Megger over a five-year period. The Plan would run from fiscal year 2010 through fiscal year 2014, with a bonus payable at the end of the five-year period. A written version of the Plan was distributed to Plaintiff and each key employee on April 30, 2010.[2]
Paragraph 11 of the Plan provides: "TBG may, in good faith towards the participants, at any time terminate the Plan, or make such modifications of the Plan as it will deem advisable."
Paragraph 12 of the Plan provides that: "The Plan and the rights of each person hereunder will be governed by the laws of the [sic] England and subject to the sole jurisdiction of the English Courts."
At a company meeting in mid-April 2013 in Norristown, Pennsylvania, Mr. Frank announced that TBG had decided to terminate the Plan and offered an immediate "buyout" to plan participants.

On June 13, 2013, Plaintiff filed a complaint against Defendants alleging various claims, including negligent and intentional misrepresentation, breach of contract and/or wrongful termination of the Plan, conspiracy, and violation of the Pennsylvania Wage Payment and Collection Law. In response to the complaint, Defendants filed the instant motions to dismiss.


As a general rule, motions to dismiss for improper venue are entertained under Federal Rule of Civil Procedure ("Rule") 12(b)(3). The Third Circuit Court of Appeals, however, has held that dismissal under Rule 12(b)(6) is also proper where a forum selection clause designates another court as the exclusive venue for litigation. See Salovaara v. Jackson National Life Insurance Co., 246 F.3d 289, 298-299 (3d Cir. 2001). When considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court must determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.'" Id. at 211 ( quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint must do more than merely allege the plaintiff's entitlement to relief; it must "show such an entitlement with its facts." Id. (citations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)) (alterations in original). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. To survive a motion to dismiss under Rule 12(b)(6), "a plaintiff must allege facts sufficient to nudge [his] claims across the line from conceivable to plausible.'" Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570).

Where an agreement which contains a valid forum selection clause is the issue of a motion to dismiss, a Rule 12(b)(6) dismissal is the proper means of enforcing the forum selection clause. Wall Street Aubrey Golf, ...

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