Caballero v. Healthtech Resources, Inc

BRIEF in Support re Motion to Dismiss for Failure to State a Claim Alternative Motion to Transfer Venue

W.D. Pa.April 6, 2017

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA JESSICA CABALLERO, Plaintiff v. HEALTHTECH RESOURCES, INC. Defendants Case No. 2:17-cv-00228-NBF DEFENDANT’S BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S COMPLAINT and Alternative Motion to Transfer Venue Defendant HealthTech Resources, Inc., by and through its attorney Kisner Law Firm, LLC submits the following in support of its Motion to Dismiss Plaintiff’s Complaint. Facts Plaintiff Jessica Caballero was employed by Defendant HealthTech as an IT Consultant for approximately one month until on or about September 21, 2014. Compl. ¶4. Duties as an employee of HealthTech consisted of Plaintiff providing information technology support, including implementation of “software applications and programs” and providing “software support to HealthTech’s healthcare clients and aiding healthcare staff with new software.” Compl. ¶20 ¶21. Plaintiff signed an Employment Agreement (the “Agreement” identified as Exhibit A) which set forth the terms of Plaintiff’s employment. The Agreement specified, and Plaintiff agreed, that the terms of employment would be governed by Arizona law and that any dispute Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 1 of 17 2 between Plaintiff and Defendant would be resolved by a court of competent jurisdiction in Maricopa County, Arizona. Ex. A, p. 4. Two and a half years after Plaintiff’s employment contractually ended Plaintiff, a Florida resident, brought this action against her former employer, a company headquartered in Arizona, alleging a failure to provide overtime compensation under federal and Pennsylvania state law. See generally Compl. Plaintiff also seeks to join other employees and have the case certified as a collective and class action. Id. Defendant denies any failure to provide proper compensation and seeks dismissal of the action in its entirety for failure to state a claim upon which relief can be granted under FRCP 12(b)(6); in the alternative, should any counts not be dismissed by this Honorable Court, the Defendant seeks to have venue transferred to the United States District Court for the District of Arizona (Phoenix) under 28 USC 1404(a). Analysis Defendant maintains that at all times it provided proper compensation to the Plaintiff and that the venue and choice of law alleged by Plaintiff in her Complaint are incorrect and cause for dismissal of the Complaint in its entirety as such terms were already agreed to by the parties in the Agreement. Ex. A p. 4; e.g. Salovaara v. Jackson Nat’l Life Ins. Comp., 246 F.3d 289 (3d Cir. 2014). Plaintiff now seeks to shop for a more preferable forum, as the proper place for this matter, Arizona, would bar her action as the statute of limitations on her claim has run and there is no corresponding state law upon which she could attempt to seek recovery. See infra Sec. I. Even if there were not a statue of limitations that prevented her federal claim, Count I should be dismissed as the Plaintiff was a well-compensated “computer employee” as defined Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 2 of 17 3 within the FLSA regulations and as described by Plaintiff herself in her Complaint. 29 CFR 541.400(b); Compl. ¶20 ¶21; see generally Haluska v. Advent Communications, Inc., 2014 WL 5823105 (W.D. Pa. Nov. 10, 2014) (holding the computer employee exemption was applicable to an employee who provided ‘software’ support to clients); see also Schmidt v. Skolus, 770 F.3d 241 (3d Cir. 2014) (permitting an affirmative defense to be raised in a motion to dismiss where the statement in the complaint clearly shows such facts upon which the dismissal is based). Plaintiff entered into the Agreement for an information technology position with the Defendant for a limited period during which time she was highly compensated at more than double the required minimum amount to qualify for a computer employee exemption. Ex. A p. 2; 29 CFR 541.400(b). Plaintiff freely contracted to have the terms of her employment governed by the law of Arizona and to have any dispute between herself and the Defendant resolved in Maricopa County, Arizona. Ex. A p. 4. This forum selection clause should be enforced and the entire complaint dismissed under FRCP 12(b)(6). See generally Salovaara 246 F.3d 289; accord MTR Gaming Group, Inc. v. Arneault, 899 F. Supp 2d 367 (W.D Pa. 2012). Additionally, if enforced, the Agreement would prevent Counts II and III of Plaintiff’s Complaint from moving forward as they are brought pursuant to Pennsylvania law and the Agreement requires Arizona law. Id.; Ex. A p. 4; see generally Compl. Moreover, Count III for unjust enrichment should be dismissed as the Court in its analysis would need to imply a quasi- contract and such implication would be incorrect when an actual contract already exits which governs such matters and provided adequate compensation. E.g. Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989 (3d Cir. 1987). If for any reason this Honorable Court would find that Plaintiff should be allowed to proceed with any of her claims the Defendant would respectfully move, in the alternative, to Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 3 of 17 4 transfer the matter to the District Court of Arizona where the Defendant employer is headquarter, where the employer decisions on which this Complaint are based were made and for which the venue was chosen by the parties. See Jumara v. State Farm Ins. Comp., 55 F.3d 873 (3d Cir. 1995); 28 USC 1404(a). I. FLSA Expired and Exempt– Count I Plaintiff alleges in Count I of her Complaint that she was denied overtime wages under the Fair Labor Standards Act 29 USC § 207(a)(1). Plaintiff claims she worked more than 40 hours per week but was not provided one and a half times her hourly rate. Compl. ¶49. Plaintiff further alleges that Defendant acted ‘willfully and with reckless disregard’. Compl. ¶50. Defendant denies that it ran afoul of any such requirement, took any ‘willful’ action and argues that Plaintiff has failed to state a claim upon which relief can be granted. A. Statute of Limitations The FLSA requires that all claims for relief be brought within two years after the cause of action accrued. 29 U.S.C. §255(a). A statute of limitations defense may be raised under a 12(b)(6) motion to dismiss if “the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations”. Schmidt v. Skolus, 770 F.3d 240, 249 (3d Cir. 2014). Plaintiff’s Complaint alleges on multiple occasions that her last day of employment was September 21, 2014, the last date upon which the alleged cause of action would have accrued and therefore, the last date upon which the Plaintiff could have brought her action was September 21, 2016. 29 USC 255(a). The Complaint itself was not filed until February 20, 2017; thus the statute of limitations on Plaintiff’s FLSA action, upon which Count I is solely based, expired nearly five months prior to the filing of the Complaint. Id. Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 4 of 17 5 As the Complaint contains all of the facts necessary to determine that the statue of limitations has expired, Count I should be dismissed. Schmidt 770 F. 3d at 249. B. No Willful Behavior An FLSA action’s statute of limitations may only be extended in cases where the employer’s behavior is willful and then only for one additional year or three years total. 29 USC §255(a). Behavior of an employer is willful where such employer knew of the violations or showed “reckless disregard” for whether or not the conduct allegedly violated the FLSA. Hilda v. A-1 Mortgage Corp. 934 F. Supp 2d. 778, 814 (W.D. Pa. 2013, internal cites omitted). It has also been held to be ‘willful’ if the employer acts with ‘indifference’ as to the requirements or violations of the statutes if the employer has a history of violations. Id. at 850. (The conduct of the Defendant employer in Hilda was found to have acted willfully after having had numerous interactions with the Department of Labor regarding similar allegations on which the current complaint was based. Id.) Plaintiff makes no allegations that Defendant knew of any violations or even that it had any reason to suspect a violation nor does she assert any other behavior that would show Defendant engaged in any ‘willful’ behavior. See generally id. at 814. The only statement that Plaintiff makes regarding willful behavior is circular reasoning, a conclusion of law at best, that “in violating the FLSA [Defendant] acted willfully and with reckless disregard”. Compl. ¶50. Plaintiff provides no facts regarding this assertion and such a simple statement of law is not satisfactory to meet Plaintiff’s burden of pleading facts upon which she can recover. See generally Ashcroft v. Iqbal, 555 U.S. 662, 678 (2009). As Plaintiff has not pleaded any facts that would show that the statue of limitations should be extended from two to three years but has pleaded facts that show the two year statute Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 5 of 17 6 of limitations has expired, Count I should be dismissed. See Schmidt 770 F.3d at 249. See also Ashcroft 555 US 662. C. Computer Employee Exemption An employee who has duties comprising of application of systems analysis procedures, including consulting with users, or determining software specification or documentation, analysis, testing or modification of computer systems or programs and who make at least $27.63 per hour is exempt from overtime laws; the title of a position is not determinative of an exemption. 29 CFR 541.400; see also Haluska v. Advent Communications, Inc., 2014 WL 5823105 (W.D. Pa. Nov. 10, 2014). When the facts are apparent from the Complaint a fact finder may draw conclusions from such facts and make a ruling under a 12(b)(6) motion that would otherwise be reserved as an affirmative defense. See generally Schmidt 770 F.3d at 241 (Schmidt examines a statute of limitations affirmative defense being permissible but Defendant would encourage the Court that such precedent would be applicable to an exemption as well, where the Plaintiff “effectively pleads herself out of court by alleging facts that sufficient to establish the defense” citing Hollander v. Brown, 457 F.3d 688, 697 n.1, 7th Cir 2006). Plaintiff’s duties, as asserted in her Complaint, included “providing software applications and programs” and “providing software support to HealthTech’s healthcare clients and aiding healthcare staff with new software.” Compl. ¶20 ¶21. These duties, as stated by Plaintiff, comport with the statutory requirements and are akin to those of the computer exempt employee in Haluska whose primary duties were to “install and program software for voice and data networking systems, to modify the communications systems to meet the customers’ specific needs, and to train the customers on how to use the products.” WL 5823105 at 4. Similar to Haluska Plaintiff “provided software programs” and “software support to” users. Id. Compl. ¶20 Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 6 of 17 7 ¶21. Plaintiff’s rate of pay, $58 per hour, was more than double that of the required minimum to qualify for the exemption. 29 CFR 541.400(b); Ex. A p. 2. As Plaintiff was the one to assert the facts regarding the exemption that would defeat her own claim, rather than Defendant asserting the exemption as an affirmative defense, dismissal of Count I, based upon the exemption would be proper under the Defendant’s 12(b)(6) motion. See Schmidt 770 F.3d at 241. II. Governing Law- Counts II & II (Alternative Transfer of Venue) The Agreement Plaintiff signed contained a governing law clause that stated that the terms of employment would be governed by Arizona law and that any dispute between Plaintiff and Defendant would be resolved by a court of competent jurisdiction in Maricopa County, Arizona, setting the proper venue and choice of law. Ex. A p. 4; see generally MTR v. Arneault 899 F. Supp 2d 367 (W.D.Pa. 2012). A. Contract The Supreme Court of the United States has held that “forum selection clause[s] are prima facie valid.” MTR 899 F. Supp 2d at 374 (citing 407 US 1, 10 (1972)). This District has held that “when the words contained in the agreement are clear and unambiguous, we enforce them”. Id at 373 (internal cites omitted). Similarly, Pennsylvania courts ‘generally honor the intent of the contracting parties and enforce choice of law provisions in contracts executed by them.” Id. at 384 (internal cites omitted). Courts are also permitted to “consider facts outside of the complaint to determine proper venue.” Id. at 370 (internal cites omitted). The parties in this instant matter clearly meant for the choice of law to be Arizona and the venue to be a court of competent jurisdiction in Maricopa, Arizona, as the governing law clause, which Plaintiff initialed directly under on page 4 of the Agreement states: Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 7 of 17 8 “This offer and terms of your employment are governed by HealthTECH are governed by Arizona law. Any dispute between you and HealthTech shall be resolved by a court of competent jurisdiction in Maricopa County, Arizona.” Not only did the parties clearly state their choice of law, Arizona, but such choice directly relates to the location of the Defendant and is the place where decisions were made regarding the terms of employment and alleged disputes. MTR 899 F. Supp 2d at 384. Further, Pennsylvania has no greater interest in this matter than Arizona, despite any contrary differences in the laws of the states. Id. Rather Arizona, as the state of domicile of one of the parties and the location where the claim arose arguably has a more material interest in this matter. Id. The Court may consider documents which are ‘integral’ to the complaint or that the Plaintiff has based her Complaint upon. Schmidt 770 F.3d at 249. The question in whether to consider the document is if the Plaintiff had actual notice of the document. See id. Here, Plaintiff certainly had notice as she signed the Agreement and initialed on at least every page, some pages more than once. Ex. A. Additionally, Plaintiff directly asserts in her Complaint information from the Agreement, such as the way in which she was paid, hours and working conditions; for example the work requirements described in paragraph 17 are similarly described on page 1, bullet point 2; paragraph 24 regarding Plaintiff being paid on an hourly basis and for time worked is directly from page 2 “Compensation”; the dispute regarding failures to follow FLSA, comply with Pennsylvania law and the quasi-contract allegation are all directly based off of the Agreement, particularly pages 2 and 4, both initialed by Plaintiff. The Agreement is necessary to the Complaint where it was relied upon and used by the Plaintiff and should therefore be considered by this Court. Schmidt at 247. Specifically, the Agreement shows the Plaintiff’s rate of pay and the governing law which control the terms of Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 8 of 17 9 Plaintiff’s employment, on which the dispute is based, and the proper venue for this action. See generally Schmidt 770 F.3d 241; accord MTR 899 F. Supp 2d 367. As a contract employee, Plaintiff freely agreed to the terms of her employment, which included clauses regarding venue and choice of law. Id. Under the Agreement the venue chosen by Plaintiff in her Complaint is incorrect and the Agreement’s choice of law provision prevents two of the three claims from being pursued. Ex. A p. 4. Additionally, as such a contract exists, any claim for unjust enrichment is not only barred by a choice of law but also by the actual existence of the contract and the abundance of compensation that Plaintiff received. See Hershey 829 F2d 898. For these reasons Counts II and III should be dismissed. B. Choice of Law The Agreement provides that the terms of employment are governed by Arizona law. Ex. A p. 4. Such provisions, for the reasons stated supra, should be enforced. Terms of employment include overtime and compensation. Ex. A p. 2. Counts II and III, which allege claims for overtime and lack of proper compensation, are brought under Pennsylvania law. See generally Compl. Given that Counts II and II of the Complaint are improperly brought under Pennsylvania law they should be dismissed. See generally Schmidt 770 F.3d 241; accord MTR 899 F. Supp 2d 367. Additionally, there is no corresponding provision under Arizona law requiring or regarding overtime provisions for a private employee1 that could be interpreted to apply in substitution for the allegations in Count II. See Arizona Revised Statute Title 23 Labor. C. Venue – Dismissal Dismissal of this action is proper under Defendant’s 12(b)(6) motion to dismiss given that the parties forum selection clause specifies that any dispute between Plaintiff and Defendant 1 Section 23-391 of Arizona Revised Statutes provides regulations for overtime for certain public employees, but there is no corresponding clause for a private employer. Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 9 of 17 10 shall be brought in a court of competent jurisdiction in Maricopa County, Arizona. Ex. A p.4; Salovaara v. Jackson Nat’l Life Ins. Comp., 246 F.3d 289 (3d Cir 2001) (stating that a 12(b)(6) dismissal is permitted as a means of enforcing a forum selection clause, even if venue is permitted in another federal forum). It is within this Court’s discretion to grant a dismissal pursuant to 12(b)(6) motion as a method of enforcing a forum selection clause. Id. Federal law gives forum selection clauses great weight and assumes they are valid, holding the intent of the parties of highest importance. E.g., MTR 899 F.Supp 2d 367 (permitting a dismissal under 12(b)(6) to enforce a forum selection clause). Plaintiff was highly compensated in exchange for agreement to that contract; thus the contract should be given special consideration and the choice of law chosen by the parties within it enforced. See generally MTR 899 F. Supp 2d 367. Plaintiff and her counsel were well aware of the Agreement as they directly based allegations and facts in the Complaint on the Agreement. See supra. Plaintiff’s failure to adhere to the forum selection clause is grounds for dismissal under 12(b)(6) as in Salovaara and MTR. 246 F.3d 289; 899 F. Supp 2d 367. The Complaint should be dismissed without prejudice to the extent Plaintiff is free to bring her claim(s) again in the proper forum in Arizona. Id. D. Venue- Alternative Transfer If dismissal is deemed inappropriate to enforce a forum selection clause, a party may bring, and the court may consider, a discretionary transfer of venue pursuant to 28 USC 1404(a). Jumara v. State Farm 55 F.3d 873, 878 (3d Cir. 1995). A weighing of both private and public factors shows that venue is most appropriate in the District Court of Arizona. Id. Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 10 of 17 11 The forum agreed to by the parties is Arizona; such an agreement is entitled to substantial consideration as Plaintiff has already contracted for and chosen a venue. Id. at 880. Considerable weight is to be given to this first factor, the parties’ choice of forum. Id. at 882. Jumara also requires the court to consider the convenience of the parties and the witnesses. Id. at 879. The only identifiable people who would have convenience in this current venue are Defendant’s attorneys. Even Plaintiff’s counsel are spread across the state and country, as indicated by recent pro hoc vice filings. The Defendant is an Arizona company and the witnesses it would have to call as party representatives are in Arizona. See generally Compl. The only non-Arizona parties or witnesses are Plaintiff, a Florida resident, and the un-named and unidentified potential class/collective action members whose current location(s) Defendant cannot reasonable ascertain at this time. Id. Other private factors to be considered are where the claims arose, and the locations of books and records. Jumara 55 F.3d at 879. The books and records are located in Arizona, although Defendant will submit that this factor is likely awash as improved technology permits the transmission of such books and records to any venue. Id. The claims, where the policy decisions were made, arose in Arizona. Id. Public factors also favor Arizona; considerations include enforceability of a judgment, trial ease and expense, court congestion, a local interest in deciding the matter at home and public policies of the forum. Id. at 879-80. A judgment against an Arizona company would be more easily enforced if it was taken in Arizona. Id. at 879. Trial costs would be greatly reduced if at least one party was able to litigate in their home state; given that Defendant is far Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 11 of 17 12 more likely to have more witnesses per party and as a corporate entity whose witnesses likely share a common residency, their home state makes the most sense2. Id. This Honorable Court is all too aware of the delays of litigation and the costs associated with such delays as the Western District of Pennsylvania is officially without the service of four judges, nearly half of its permitted judgeships, and has been in such an official deficit with three of those judges since 2013. United States Courts, Judicial Vacancies (last visited April 4, 2017) http://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies. Whereas, the District Court of Arizona is officially without two judges, only fifteen percent of its judiciary, both of whom departed within the last year. Id. The time from filing to disposition and from filing to trial is relatively the same on average for both courts, although Arizona does have a 1.3% lower rate of civil cases three years or older. United States Courts, Federal Judicial Statistics December 2016 (last visited April 4, 2017) http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile1231.2016.pdf. Therefore, Defendant would submit that court congestion would weigh in the favor of a transfer to Arizona. See Jumara 55 F.3d at 879. Arizona also has a local interest, if such a local business is committing the alleged violations, in deciding the matter at home. Id. While Pennsylvania may have an interest in a business that was active in its community and allegedly committed such infractions, the continuing nature of the business in Arizona carries substantially more interest for its community members. Additionally, the public policies of the Defendant’s home state and those of the forum selected by the parties should be given greater deference as they are likely to be those which Defendant will be judged by in the future. Id. 2 It is not believed that either party is advocating that this litigation be moved to, or would be proper, in Plaintiff’s state of residency Florida. Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 12 of 17 13 Finally, while the Defendant has no doubt that this learned Court will provide knowledgeable rulings no matter the source of law, there is favor to be given to the judges of the District Court of Arizona for what one assumes is their familiarity with Arizona law. Id. at 879- 80. Given that the parties’ Agreement contains a forum selection clause that is unambiguous and entitled to enforcement and that all or almost all of the Jumara factors support venue in Arizona, Defendant submits that at a minimum transfer to the District Court of Arizona is proper, if an outright dismissal is not granted. See generally Jumara 55 F.3d 873; accord Salovaara 246 F.3d 289; 28 USC 1404(a). III. Unjust Enrichment- Count III Plaintiff was a highly compensated contract computer employee who worked for Defendant for one month and now seeks to argue that the estimated $18,5003 she received during that month, in addition to paid lodging, travel, per diem and expenses, was not enough compensation. Compl. ¶16 ¶17; Exb. A pg. 2. When examining a claim for unjust enrichment the court implies a contract. Hershey v. Ralph Chapek, 828 F.2d 898, 998 (3d Cir. 1987). Unjust enrichment does not apply where, as here, a written contract exists which governs the parties relationship. Id. at 999. Further, where a “contract ‘fixes the value of the services involved’ there can be no recovery under a theory of quantum meriut” [unjust enrichment]. Id. at 999-1000 (internal citations omitted). Additionally, in order to maintain a claim for unjust enrichment the Plaintiff must show that the Defendant received so much more than what he or she was entitled to, that it was so 3 Defendant bases this figure solely off of Plaintiff’s Complaint wherein she alleges that she was required to work 10 hours a day 7 days a week for the period of August 20 to September 21, 2014 (32 days) and was paid an hourly rate. [10 hour*32 days*$58 per hour equals $18,560] Defendant does not agree with these allegations nor does it seek to allege this amount as accurate of her earnings, rather it only presents this figure as a representation based upon the Complaint. Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 13 of 17 14 unfair and unreasonable what the Plaintiff gave up or received in exchange, that to allow the Defendant the benefit of the exchange without providing additional compensation to the Plaintiff would be unconscionable or unjust. Id. at 999. Here, a written contract already exists which governed all disputes between the parties and set the value of services for which the claims are based upon. Id.; Ex. A. The Plaintiff ‘gave up’ her services as an IT professional for $58 an hour. Ex. A pg. 4. To illustrate this valuable consideration, Plaintiff was compensated at more than two times the required rate for the exemption of a computer employee ($27.63) and more than three times the national median hourly wage for all occupations ($17.81); to argue that the Plaintiff was underpaid or lacking in remuneration for her services as a contract employee is ludicrous. 29 CFR 541.400(b); Bureau of Labor Statistics, May 2016 National Wage Estimates (last visited April 4, 2017) https://www.bls.gov/oes/current/oes_nat.htm. As the Agreement already existed on which the parties’ relationship was based and provided values for services, Plaintiff cannot maintain Count III for Unjust Enrichment and it should be dismissed. See Hershey 828 F.2d at 998-1000. Conclusion Plaintiff was a skilled computer employee who contracted with Defendant to provide one month of work during which time she was highly compensated for every minute of work she provided, in addition to being provided with lodging, a per diem, travel and expenses. Compl.; Ex. A. Two and a half years after her brief employment ended Plaintiff seeks to avoid the governing law clause the parties contracted for in the Agreement and forum shop her Complaint to this Court. Id. Dismissal is appropriate to enforce the venue and choice of law provisions agreed upon by the parties. See MTR 899 F.Supp 2d 367; See also Salovaara 246 F.3d 289. Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 14 of 17 15 Additionally, Count I should be dismissed as the facts Plaintiff present show that the statute of limitations for her FLSA claim have expired and she has failed to properly plead any circumstances under which it could be extended. E.g. Schmidt 770 F.3d 241; 29 U.S.C. §255(a); see also Ashcroft 555 U.S. at 678. Further, Plaintiff was an exempt computer employee under the FLSA as shown by the facts averred by Plaintiff. See Schmidt 770 F.3d 241; See also Haluska 2014 WL 5823105; 29 CFR 541.400. The forum selection for Arizona that should be enforced by this Honorable Court would also prevent Counts II and III from proceeding as they are based on Pennsylvania law and there is no corresponding Arizona law. See generally Schmidt 770 F.3d 241; accord MTR 899 F. Supp 2d 367. Plaintiff’s Count III for unjust enrichment fails as well, where an actual contract already exists which controls the disputes and sets the compensation, which was more than adequate. E.g. Hershey 828 F.2d at 999. There is also cause to transfer the counts, if any remain, as this Honorable Court has discretion under 1404(a) to transfer venue to give effect to the parties’ forum selection clause and as the factors weigh in favor of Arizona. See Jumara 55 F.3d 873. WHEREFORE, Defendant HealthTech Resources respectfully requests this Honorable Court dismiss Plaintiff’s Complaint in its entirety and award Defendant such other relief as it may deem just and proper. In the Alternative, if this Honorable Court permits any part of Plaintiff’s Complaint to move forward, the Defendant respectfully requests that such Complaint be transfered to The United States District Court for the District of Arizona (Phoenix). Respectfully submitted, /s/ Kimberly J. Kisner Kimberly J. Kisner, Esq. PA ID No. 79654 Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 15 of 17 16 /s/ Leah K. Sell Leah K. Sell, Esq. PA ID No. 318340 Kisner Law Firm, LLC Gulf Tower 707 Grant Street, Ste. 2646 Pittsburgh, PA (412) 904-4865 (412) 235-6704 Counsel for Defendant Dated: April 6, 2017 Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 16 of 17 17 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA JESSICA CABALLERO, Plaintiff v. HEALTHTECH RESOURCES, INC. Defendants Case No. 2:17-cv-00228-NBF CERTIFICATE OF SERVICE I, Leah K. Sell, hereby certify that on this 6th day of April, 2017, I filed the foregoing Brief in Support of Defendant’s Motion to Dismiss with this Court using the CM/ECF, this system sends notification of such filing and service to the following: Berger & Montague, P.C. 1622 Locust Street Philadelphia, PA 19103 Counsel for Plaintiff /s/ Kimberly J. Kisner Kimberly J. Kisner, Esq. PA ID No. 79654 /s/ Leah K. Sell Leah K. Sell PA ID No. 318340 Kisner Law Firm, LLC Gulf Tower 707 Grant Street, Ste. 2646 Pittsburgh, PA (412) 904-4865 (412) 235-6704 Case 2:17-cv-00228-NBF Document 15 Filed 04/06/17 Page 17 of 17 Case 2:17-cv-00228-NBF Document 15-1 Filed 04/06/17 Page 1 of 5 Case 2:17-cv-00228-NBF Document 15-1 Filed 04/06/17 Page 2 of 5 Case 2:17-cv-00228-NBF Document 15-1 Filed 04/06/17 Page 3 of 5 Case 2:17-cv-00228-NBF Document 15-1 Filed 04/06/17 Page 4 of 5 Case 2:17-cv-00228-NBF Document 15-1 Filed 04/06/17 Page 5 of 5