The opinion of the court was delivered by: Judge Marbley
This action is before the Court on Defendant's Motion to Dismiss pursuant to 28 U.S.C. §1406(a) and Fed. R. Civ. Pro. 12(b)(3) or, in the alternative to Transfer Venue to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. §1406(a) or 28 U.S.C. §1404(a). For the reasons set forth herein, the Court, without commenting on Defendant's Motion to Dismiss or the propriety of the venue of this action under 28 U.S.C. §1391, GRANTS Defendant's Motion to Transfer Venue to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. §1404(a).
II. FACTUAL and PROCEDURAL BACKGROUND
Plaintiff Joseph L. Tieman ("Plaintiff" or "Tieman"), a lifelong resident of Ohio, began his employment at the Victaulic Company ("Defendant" or "Victaulic") in April 1998. Victaulic is a manufacturer of parts used in fire protection systems and is incorporated under the laws of New Jersey with its principal place of business in Pennsylvania. Tieman worked as a sales representative for Victaulic. Victaulic assigned him to a sales territory that covered Ohio, West Virginia, and parts of western Pennsylvania (the "Victaulic Sales Territory").
On or about October 22, 2005, Tieman executed a Non-Competition Agreement which is at the center of this lawsuit. (the "Non-Compete") In exchange for an increase in salary, the Non-Compete prohibited Tieman from working in a similar capacity for anyone anywhere in North America aside from Victaulic for twelve months after his termination.
More pertinently, the Non-Compete contained a choice of law provision and a forum-selection clause. In relevant part, the Non-Compete stated:
It is understood that this Agreement is made under and shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All disputes which arise in connection with, or are related to this Agreement or any claimed breach thereof, shall be resolved, if not sooner settled, by litigation only in Northampton County, Commonwealth of Pennsylvania (or the Federal Court otherwise having territorial jurisdiction over such County and subject matter jurisdiction over the dispute), and not elsewhere, subject only to the authority of the court in question to order changes in venue. I waive any rights I may have to litigate in any venue other than the above court, and covenant not to sue the company in court other than the above courts with respect to any dispute related to this Agreement.
On December 11, 2006, Tieman resigned from Victaulic and commenced employment at Plaintiff Tyco Fire Products LP ("Tyco," collectively with Tieman, "Plaintiffs"). Tyco is a competitor of Victaulic and is incorporated in Delaware with its principal place of business in Texas. Tyco assigned Tieman to a sales territory that encompasses Indiana, Wisconsin, Illinois, Minnesota, Iowa, North Dakota, South Dakota, and Kentucky. (the "Tyco Sales Territory").
Also on December 11, 2006, Tieman and Tyco filed this action. In their complaint, Plaintiffs seek declarations that portions of the Non-Compete are overly broad and unenforceable and that Tieman's employment by Tyco does not give rise to any cognizable claim by Victaulic against Tyco.
On December 22, 2006, Victaulic filed suit against Tieman and Tyco in the United States District Court for the Eastern District of Pennsylvania, Victaulic v. Tieman et. al, Case No. 06CV5601 (the "Pennsylvania Action"). In the Pennsylvania Action, Victaulic states claims against Tieman and Tyco for breach of contract, violations of Pennsylvania's Trade Secrets Act, tortious interference with contract, and unfair competition.
Victaulic subsequently filed this Motion to Dismiss or Transfer Venue, seeking to have this action dismissed or consolidated with the Pennsylvania Action. Plainitiffs filed a timely response and ...