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McCusker v. Hibu PLC

United States District Court, E.D. Pennsylvania

April 8, 2015

HIBU PLC, et al. Defendants




Before this Court is a joint motion filed by Defendants hibu PLC, hibu Inc., (together "hibu"), and Michael Pocock (collectively "Defendants"), pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6), which seeks to dismiss the complaint filed against them for failure to state a claim upon which relief can be granted. The arguments to dismiss are based on an express choice of law and forum selection provision contained in the employment agreement between James McCusker ("Plaintiff') and Defendant hibu. In essence, this provision provides that any employment claim brought by Plaintiff is subject to the sole jurisdiction of the state or federal courts of the State of New York. [ECF 8]. Plaintiff opposes the motion, [ECF 12], and Defendants filed a reply to the opposition. [ECF 13].

Accordingly, the issues have been fully briefed and are ripe for consideration. For the reasons stated herein, Defendants' motion to dismiss, which is being construed as a motion to transfer venue pursuant to 28 U.S.C. §1404(a), is granted. Consequently, this matter is transferred to the United States District Court for the Eastern District of New York.


When ruling on Defendants' motion to dismiss, this Court accepts, as true, the relevant allegations in Plaintiffs complaint and attachments. Briefly, these facts are as follows:

Defendant hibu PLC ("hibu PLC") (formerly known as Yell Group plc) is a publicly traded company with its headquarters located in the United Kingdom. (Comp. ¶¶ 8, 16). Hibu PLC, which regularly conducts business in Bucks County, Pennsylvania, through its wholly-owned United States subsidiary, hibu Inc. ("hibu Inc.") (formerly known as Yellowbook Inc.), is a Delaware corporation with a place of business in King of Prussia, Pennsylvania. ( Id. at ¶¶ 8, 9, 17).[1]
Hibu PLC was a supplier of print and online advertising for small and medium-sized businesses, and through its U.S. subsidiary, published the "Yellow Pages" print and online telephone and advertising directories. (Id. at ¶¶ 16-17).
Plaintiff, a resident of Doylestown, Pennsylvania, began working for hibu Inc. in 1989 as a sales representative and rose through the rank to being appointed President and Chief Sales Officer in April 2012. (Id. at ¶¶ 7, 21, 22). With this appointment, Plaintiff entered into a written employment agreement outlining the terms of this new position (the "Employment Agreement") with Defendant hibu. Plaintiff was terminated on March 6, 2013. (Id. at ¶ 69). Pertinent to the issues raised in this motion, the Employment Agreement provides:
18. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of New York applicable in the case of agreements made and entirely performed in such State.
20. The parties agree that, except as provided in Section 13, [2] any legal action or proceedings between them relating to this Agreement shall be brought in the courts of the State of New York or the federal courts located in the State of New York, and the parties hereby consent to the sole and exclusive jurisdiction of such courts in any legal action or proceeding arising under this Agreement.
On September 4, 2014, Plaintiff commenced this action by filing a complaint in the Bucks County Court of Common Pleas. In his complaint, Plaintiff asserts claims for defamation based on the notice Defendant hibu gave to employees of his termination, and for violations of the Pennsylvania Wage Payment and Collection Law. Defendants removed the matter to federal court on October 3, 2014, claiming federal diversity jurisdiction; and filed the instant motion to dismiss.


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 plaintiffs 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 ...

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