Acrisure of California, LLC v. Freska

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ACRISURE OF CALIFORNIA, LLC,
Plaintiff,
v.
PETER FRESKA,
Defendant.
___________________________________/
Case No. 1:26-cv-1699
Hon. Hala Y. Jarbou
OPINION
Plaintiff Acrisure of California, LLC, brings this lawsuit against Defendant Peter Freska, a
former Acrisure employee, for the alleged breach of noncompete provisions in his employment
agreement. Before the Court is Freska’s motion to dismiss the case on the ground of forum non
conveniens or stay the case (ECF No. 10), which he now asks the Court to construe as a motion to
transfer under 28 U.S.C. § 1404(a). For the reasons explained below, the Court will deny the
motion to transfer.
I. BACKGROUND
Acrisure is an insurance brokerage company that hired Freska in 2016, when it bought a
firm that he co-owned. (Compl. ¶¶ 13, 21–22, ECF No. 1.) At the time, Freska executed an
employment agreement with Acrisure containing noncompete provisions that apply during his
employment and for three years after his employment ends. (Employment Agreement 7, ECF
No. 22-2.) The employment agreement contains the following choice-of-law clause:
The terms and conditions of this Agreement shall be governed, construed,
interpreted and enforced in accordance with the domestic laws of the State of
Michigan, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of Michigan or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of Michigan.
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(Id. at 9.) It also contains a forum-selection clause:
All actions or proceedings arising from or related to this Agreement and for which
a party seeks injunctive or equitable relief shall be brought only in a state court of
competent subject matter jurisdiction in Kent County, Michigan, or in the federal
courts of competent subject matter jurisdiction in the Western District of Michigan,
Southern Division. Each party expressly and irrevocably consents to personal
jurisdiction and venue in such courts, and agrees not object to such jurisdiction or
venue on the ground of forum non conveniens or otherwise.
(Id.) Acrisure operates out of Michigan (Compl. ¶ 13), but Freska lives in California and
conducted his work from Acrisure’s offices in that state (Cal. Compl. ¶¶ 9, 30, ECF No. 11-1).
Acrisure terminated Freska on May 27, 2026, and filed this lawsuit the same day. (Compl.
¶ 50.) Acrisure alleges that Freska has attempted to prevent Acrisure employees from stopping
another company’s efforts to solicit Acrisure’s clients. (Id. ¶ 44–49.) Acrisure brings a breach of
contract claim and seeks specific performance and a declaratory judgment. Two days after
Acrisure filed this lawsuit, Freska filed a lawsuit against Acrisure in California state court, seeking
a declaration that portions of the employment agreement are unenforceable and an injunction
preventing Acrisure from interfering with Freska’s employment. (See Cal. Compl.) Acrisure
subsequently removed that case to federal court based on diversity jurisdiction, although Freska
has since filed a motion to remand that remains pending. Freska initially asked this Court to stay
this case or dismiss it on the ground of forum non conveniens, but now that the California case has
been removed, in his reply brief he asks for transfer of this case to the Central District of California
under 28 U.S.C. § 1404(a).
II. LEGAL STANDARD
Section 1404 provides that “[f]or the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to any other district or division where it
might have been brought or to any district or division to which all parties have consented.” 28
U.S.C. § 1404(a). The § 1404(a) analysis depends on whether a valid forum-selection clause is
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applicable to the claims at issue. “In the typical case not involving a forum-selection clause, a
district court considering a § 1404(a) motion . . . must evaluate both the convenience of the parties
and various public-interest considerations.” Atl. Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49,
62 (2013) (footnote omitted). However, if the parties have selected a forum via contract, the Court
“must deem the private-interest factors to weigh entirely in favor of the preselected forum.” Id.
The Court still considers whether the public-interest factors support a transfer, but it is unlikely
that those factors will outweigh the agreement of the parties, so “a valid forum-selection clause
[should be] given controlling weight in all but the most exceptional cases.” Id. at 63 (alteration in
original).
III. ANALYSIS
A. Forum-Selection Clause
Freska’s employment agreement contains a forum-selection clause requiring this litigation
to occur in Michigan. “Because the presence of a valid and enforceable forum-selection clause
alters the type of [§ 1404] analysis a court must apply, it follows that a court must first . . .
determine whether a forum-selection clause is applicable to the claims at issue, mandatory, valid,
and enforceable.” Lakeside Surfaces, Inc. v. Cambria Co., LLC, 16 F.4th 209, 215 (6th Cir. 2021).1
Freska challenges only the enforceability of the clause.
When addressing a § 1404(a) motion and sitting in diversity, the Court applies federal law
to determine the enforceability of a forum-selection clause. Wong v. PartyGaming Ltd., 589 F.3d
821, 826 (6th Cir. 2009) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29–30 (1988)).
The Court’s analysis must reflect “a federal policy favoring enforcement of forum selection
1 Although Lakeside addressed dismissal under the doctrine of forum non conveniens rather than transfer under § 1404,
the two analyses are essentially identical. See Atl. Marine, 571 U.S. at 60 (“Section 1404(a) is merely a codification
of the doctrine of forum non conveniens for the subset of cases in which the transferee forum is within the federal
court system . . . .”); Wong v. PartyGaming Ltd., 589 F.3d 821, 832 (6th Cir. 2009).
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clauses,” under which “such clauses ‘should control absent a strong showing that [they] should be
set aside.’” Id. at 826 (alteration in original) (quoting Carnival Cruise Lines, Inc. v. Shute, 499
U.S. 585, 591 (1991)). In order to “defeat the strong presumption in favor of enforceability,”
Freska must establish one of the following:
(1) the clause was obtained by fraud, duress, or other unconscionable means; (2) the
designated forum would ineffectively or unfairly handle the suit; (3) the designated
forum would be so seriously inconvenient that requiring the plaintiff to bring suit
there would be unjust; or (4) enforcing the forum selection clause would contravene
a strong public policy of the forum state.
Lakeside, 16 F.4th at 219–20.
Freska asserts that the third and fourth factors are met here. As to inconvenience, Freska
notes that it is difficult and expensive for him (a California resident) to travel to Michigan, and
that the relevant evidence and witnesses are in California. But invalidating a forum-selection
clause based on inconvenience is a difficult bar to clear, and these facts fall short; Freska has not
established that “trial in the contractual forum will be so gravely difficult and inconvenient that
[he] will for all practical purposes be deprived of [his] day in court.” Shell v. R.W. Sturge, Ltd.,
55 F.3d 1227, 1229–30 (6th Cir. 1995). Moreover, the facts cited by Freska to support a finding
of inconvenience are the very facts that Atlantic Marine directed courts to ignore during their
§ 1404(a) analysis when a valid forum-selection clause is present. See Atl. Marine, 571 U.S. at 62
(private-interest factors automatically weigh in favor of forum selected by contract). It would
contravene Atlantic Marine to allow these run-of-the-mill inconvenience concerns to defeat a
forum-selection clause merely because a party raises them in a challenge to the validity of the
clause rather than as part of the § 1404(a) analysis.
Regarding public policy, Freska asserts that California has a strong interest in enforcing its
limitations on noncompete clauses in employment agreements. As an initial matter, it is unclear
whether California’s public policy interest has any relevance here. In Lakeside, the Sixth Circuit
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cited M/S Bremen v. Zapata Off-Shore Co. for the proposition that “[a] contractual choice-of-forum
clause should be held unenforceable if enforcement would contravene a strong public policy of the
forum in which suit is brought.” 407 U.S. 1, 15 (1972) (alteration in original). This language
seems to presuppose a scenario in which a court must decide whether to transfer a case to another
district in accordance with a forum-selection clause—hence the reference to the policy interests of
the forum state. This case is somewhat unusual because a forum-selection clause is being used to
avoid a transfer to another district.
If applied literally to this case, Bremen renders the forum-selection clause invalid only if
enforcing it would contravene Michigan’s public policy, not California’s. If so, Freska’s
argument—which relies on California public policy—is meritless. Presumably, Freska would
contend that the posture here warrants a slightly different principle: a forum-selection clause is
unenforceable if it contravenes the strong public policy of the state to which the case might
otherwise be transferred. See W.O. Grubb Steel Erection, Inc. v. Coastal Dredging, LLC,
No. 3:24CV313, 2025 WL 837313, at *8 (E.D. Va. Mar. 17, 2025) (“[T]he Court must consider
whether enforcing the forum-selection clause would contravene a strong public policy of the
relevant forum, i.e., the forum in which the complaining party wishes to litigate.”). There is some
intuitive appeal to this principle, in that it does not cause the analysis to hinge on which court the
case was initially filed in. On the other hand, a court’s analysis of motions to transfer and forum-
selection clauses (not to mention choice-of-law issues) often turns on which court a case was filed
in. Moreover, contrary to Freska’s position, case law appears to support the more literal
interpretation of Bremen described above. See Whirlpool Corp. v. Cabri, No. 21-cv-979, 2022
WL 1421126, at *9 (D. Del. May 5, 2022) (“When deciding whether or not to enforce a forum
selection clause because of public policy considerations . . . the court considers whether
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enforcement would contravene a strong public policy of the forum in which the suit was brought,
not in a forum in which the suit could have been brought.” (internal quotation marks omitted));
NuMSP, LLC v. St. Etienne, 462 F. Supp. 3d 330, 345–46 (S.D.N.Y. 2020) (“[I]n determining
whether a forum selection provision is invalid, the Court focuses on the public policy of the forum
state, not some other state.”); MacuHealth Distrib., Inc. v. Davis, No. 19-13322, 2020 WL
1083767, at *3 (E.D. Mich. Mar. 6, 2020); Pensmore Reinforcement Techs., LLC v. McClay Indus.
PTY, Ltd., No. 2:20-cv-13073, 2022 WL 92331, at *4 (E.D. Mich. Jan. 7, 2022); Whiting-Turner
Contracting Co. v. Westchester Fire Ins. Co., No. CIV. JFM-13-348, 2013 WL 3177881, at *3 (D.
Md. June 20, 2013); Maaco Franchising, Inc. v. Tainter, No. CIV.A. 12-5500, 2013 WL 2475566,
at *4 (E.D. Pa. June 10, 2013); St. Jude Med., S.C., Inc. v. Biosense Webster, Inc., No. CIV. 12-
621, 2012 WL 1576141, at *4 (D. Minn. May 4, 2012); TGI Friday’s Inc. v. Great Nw. Rests.,
Inc., 652 F. Supp. 2d 750, 760 (N.D. Tex. 2009); Zeppelin Sys. USA, Inc. v. Pyrolyx USA Ind.,
LLC, No. 19-cv-11222, 2020 WL 1082774, at *4 (S.D.N.Y. Mar. 5, 2020); Willis Re Inc. v.
Herriott, 550 F. Supp. 3d 68, 97 (S.D.N.Y. 2021). But see Homewatch Int’l, Inc. v. Pac. Home
Care Servs., Inc., No. 10-cv-3045, 2011 WL 1660612, at *3 (D. Colo. May 2, 2011) (finding
forum-selection clause invalid due to conflict with California public policy).
Even if the forum-selection clause could be invalidated due to a conflict with California
public policy, Freska identifies no such policy here. Freska notes that California takes a more
skeptical view of noncompete agreements than Michigan. See Cal. Bus. & Prof. Code § 16600(a)
(“Except as provided in this chapter, every contract by which anyone is restrained from engaging
in a lawful profession, trade, or business of any kind is to that extent void.”). But in applying
Bremen’s public policy exception, the Court does not look to the substantive law that will apply in
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each potential forum—only to the law regarding forum-selection clauses.2 “The question is not
whether the application of the forum’s law would violate the policy of the other party’s state, but
rather, whether enforcement of the forum selection agreement would violate the policy of the other
party’s state as to the forum for litigation of the dispute.” Swenson v. T-Mobile USA, Inc., 415 F.
Supp. 2d 1101, 1105 (S.D. Cal. 2006) (emphasis added); see also Rowen v. Soundview Commc’ns,
Inc., No. 14-cv-5530, 2015 WL 899294, at *5 (N.D. Cal. Mar. 2, 2015) (“This makes the forum
selection clause separate from the choice-of-law analysis and therefore ‘a party challenging
enforcement of a forum selection clause may not base its challenge on choice of law analysis.’”);
Johnson v. Copiers Nw., Inc., No. 16-cv-1556, 2017 WL 1968605, at *6 (D. Or. May 12, 2017);
Mahoney v. Depuy Orthopaedics, Inc., No. CIVF 07-1321 AWI SMS, 2007 WL 3341389, at *8
(E.D. Cal. Nov. 8, 2007). Applying this rule, courts “have . . . refused to consider California’s
policy against non-compete agreements in determining whether a forum selection clause was
valid.” Rowen, 2015 WL 899294, at *5. Because Freska does not point to any California policy
against enforcement of the forum-selection clause, he has not established that the clause is
unenforceable.3
B. Section 1404(a) Factors
Given that the forum-selection clause is enforceable, the Court must next determine
whether to transfer the case under § 1404(a). The private-interest factors weigh entirely against a
transfer because the forum-selection clause designates Michigan as the proper forum. Atl. Marine,
571 U.S. at 62. The public-interest factors relevant to a § 1404(a) motion “include the
2 The Court does not mean to suggest that a California court would necessarily apply California substantive law if this
case were transferred there; if the California court found the contractual choice-of-law clause valid, it would apply
Michigan law.
3 Arguably, California does have a statutorily enacted policy against enforcing forum-selection clauses in some
circumstances. See Cal. Lab. Code § 925 (prohibiting forum-selection clauses in certain employment contracts). But
§ 925 does not apply to this contract because it was executed before 2017. See id. § 925(f).
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administrative difficulties flowing from court congestion; the local interest in having localized
controversies decided at home; and the interest in having the trial of a diversity case in a forum
that is at home with the law.” Id. at 62 n.6 (cleaned up). Freska argues that the public-interest
factors favor California because “California has the stronger local interest” and “the stronger
policy interest” in this case, “retaining the case in Michigan would create unnecessary conflict-of-
laws problems,” and there is “substantial overlap between the Michigan and California actions.”
(Def.’s Br. in Supp. 20–21, ECF No. 11.) The Court will address each argument in turn.
First, Freska argues that California has a stronger local connection to the case because he
worked in Acrisure’s California offices. Relatedly, Freska contends that a California jury should
hear the case because the state has a more substantial connection to the dispute. But Michigan
also has a connection to the case, as Acrisure is a Michigan company operating out of Grand
Rapids. Freska also asserts that California has a policy interest in resolving the legal issues
underlying this case, including the enforcement of the contractual choice-of-law clause and the
noncompete agreements. But Michigan has an opposing interest in resolving the same issues.
After all, “Michigan has a strong interest in protecting its businesses from unfair competition” and
from “economic loss as a result of [the] breach of [a] non-compete agreement.” Stone Surgical,
LLC v. Stryker Corp., 858 F.3d 383, 390–91 (6th Cir. 2017). Thus, California’s connection to and
interest in this case is not so much greater than Michigan’s that a transfer is warranted in spite of
a valid forum-selection clause.
Second, Freska argues that a California court is better positioned to resolve the choice-of-
law issues at the heart of this case. But Freska’s argument rests on the assumption that California
law should apply to this case, which is the very question that a choice-of-law analysis would be
necessary to answer. Of course, a California court would be well-suited to apply California choice-
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of-law rules in answering that question, but a Michigan court would be just as well-suited to apply
Michigan choice-of-law rules in answering it. In an analogous case involving an Acrisure
employee working in California, the Court found that under Michigan choice-of-law rules, the
choice-of-law clause was valid, so Michigan substantive law applied to the contract. Acrisure LLC
v. Jacobi, No. 1:26-cv-1917, 2026 WL 2524642, at *5 (W.D. Mich. Aug. 27, 2026). Because this
Court is better suited to apply Michigan substantive law than a California court, the potential
choice-of-law issues do not support a transfer to California.
Finally, Freska contends that allowing both this suit and the California suit to proceed
would waste judicial resources because the suits are largely duplicative. However, if the cases are
duplicative, this forum would be the proper place to resolve both, given that the forum-selection
clause points here and this lawsuit was filed first. See Baatz v. Columbia Gas Transmission, LLC,
814 F.3d 785, 789 (6th Cir. 2016) (when duplicative suits are filed, “the court in which the first
suit was filed should generally proceed to judgment” (emphasis removed)). The California court
may decide to transfer its case here on that basis, but this Court sees no reason to transfer this case
to California. Although the interest of judicial efficiency may sometimes justify a § 1404 transfer
“even when the first-to-file rule does not strictly apply,” Acrisure, 2026 WL 2524642, at *9 n.5,
courts should still observe the general principle that first-filed cases are given priority, and the
mere existence of a later-filed duplicative case is not sufficient to justify transfer out of the forum
designated by contract.
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IV. CONCLUSION
In sum, Freska has not established that a transfer is warranted, and the Court will deny his
motion. 4 An order will enter in accordance with this Opinion.
Dated: October 16, 2026 /s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
4 In his motion, Freska argued that the Court should also decline to exercise judgment over Acrisure’s declaratory
judgment claim due to the pending state case in California. Because that case has now been removed to federal court,
and because Freska does not address the declaratory judgment claim in his reply, the Court presumes that Freska’s
argument on this point is no longer relevant.
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