Perry v. BergHOFF Intl

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20423
Summary Calendar

DEANA PERRY, Individually and On Behalf of All Others Similarly
Situated,

Plaintiff - Appellant

v.

BERGHOFF INTERNATIONAL, INCORPORATED,

Defendant - Appellee

Appeal from the United States District Court
Southern District of Texas, Houston
USDC No. 4:18-CV-4552

Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
Deana Perry filed suit against BergHOFF International, Inc.
(“BergHOFF”) alleging violations of the Fair Labor Standards Act (“FLSA”).
BergHOFF moved to dismiss Perry’s suit under the doctrine of forum non
conveniens. The district court granted BergHOFF’s motion and dismissed
Perry’s suit. For the following reasons, we remand on a limited basis.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 8, 2020

Lyle W. Cayce
Clerk
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No. 19-20423
2
I. Factual & Procedural Background
BergHOFF is a Florida corporation that manufactures and distributes
kitchen-related products. BergHOFF hires sales agents to help sell its products
in various states. Each sales agent is required to enter into a contract with
BergHOFF that contains a forum selection clause mandating that all legal
disputes are to be filed in Pasco County, Florida. Perry worked as a sales agent
for BergHOFF from April to October 2018.
1
As a sales agent, Perry’s job duties
involved setting up booths in different Sam’s Clubs throughout the country and
performing product demonstrations.
According to Perry, she and other sales agents were often paid less than
minimum wage because their commissions were reduced for product returns
and they were required to pay for their own supplies and job-related expenses
such as hotel stays. Perry also alleges that she and other sales agents were
denied meal and rest breaks, were required to attend unpaid mandatory
meetings, and regularly worked over forty hours per week. On these and other
similar grounds, Perry filed suit against BergHOFF alleging violations of the
FLSA. Although her suit was never certified as a class action, she obtained the
written consent of several other sales agents to join as plaintiffs.
2

In response, BergHOFF moved to dismiss on grounds of forum non
conveniens or alternatively, to transfer the suit to the U.S. District Court for
the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). In its motion to
dismiss, BergHOFF cited to the forum selection clause in Perry’s contract that
stated that “any dispute between [Perry] and [BergHOFF] arising under this
Agreement shall be submitted [in] accordance with the laws of the State of
Florida” and that “any litigation shall take place in New Port Richey, Pasco

1
The record reflects that Perry signed her employment contract with BergHOFF on
March 18, 2018.
2
For ease of reference herein, only Perry’s name will be used.
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No. 19-20423
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County, Florida.” The district court granted BergHOFF’s motion concluding
that “venue of this lawsuit is required to be in the state courts of Pasco County,
Florida.” It dismissed the suit without prejudice “so that it might be re-filed in
the appropriate state court in Pasco County, Florida, if Plaintiff chooses to do
so.” Perry filed this appeal.
II. Discussion
When a district court grants a forum non conveniens motion to dismiss
on forum selection clause grounds, we review de novo its interpretation and
assessment of the clause’s enforceability. Weber v. PACT XPP Techs., AG, 811
F.3d 758, 766 (5th Cir. 2016). We review its balancing of the private and public
interest factors for abuse of discretion. Id.
On appeal, Perry argues that the district court erred in dismissing her
suit because her claims do not arise under her contract with BergHOFF, they
arise under the FLSA. She further argues that, regardless of whether the
forum selection clause was valid, the district court erred in dismissing her suit
without “addressing and balancing the relevant principles and factors of the
[forum non conveniens] doctrine.”
In support of her argument that her claims do not arise under her
contract with BergHOFF, but instead arise only under the FLSA, Perry cites
to Chebotnikov v. LimoLink, Incorporated, a district court case out of
Massachusetts. 150 F. Supp. 3d 128 (D. Mass. 2015). That case is not
controlling here, but even it if was, it fails to support her argument. In
Chebotnikov, the district court held that because the FLSA claims at issue were
distinct from the plaintiff’s employment contract, the forum selection clause
contained therein did not apply. Id. at 131. In so holding, the district court
noted that its determination was guided by an analysis of whether the
plaintiff’s FLSA claims were “dependent on any provision of the employment
agreement.” Id. (citing Pacheco v. St. Luke’s Emergency Assocs., P.C., 879 F.
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No. 19-20423
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Supp. 2d 136, 142 (D. Mass. 2012)). The district court concluded that they were
not. Id. at 131–32.
Here, however, Perry’s FLSA claims are dependent on numerous
provisions of her employment contract. For example, her employment
agreement states that: she is responsible for providing her own supplies and
will not be reimbursed for them; she will not be reimbursed for any expenses
incurred in performing her job duties (ex. transportation expenses); she must
adhere to BergHOFF’s control and directives in performing her job duties; and
she will be paid on a “commission-only basis” for “completed sales.” Perry’s
FLSA claims of being paid less than minimum wage and not being paid for
overtime involve her allegations that BergHOFF failed to reimburse her for
supplies and expenses, refused to allow her to take rest and meal breaks while
performing her job duties, required her to attend unpaid meetings, and
improperly docked her commission. Thus, it is clear that Perry’s FLSA claims
are dependent on provisions of her employment agreement. Consequently, she
would not be entitled to relief under Chebotnikov if that case controlled here—
which it does not. Moreover, Perry has failed to point to controlling Fifth
Circuit precedent that supports her argument that the forum selection clause
at issue here should not apply.
Perry’s next argument is that the district court abused its discretion in
failing to consider the relevant factors in granting BergHOFF’s motion to
dismiss. Although there is no general rule requiring district courts to provide
written explanations for their orders, we have held that “[i]t is an abuse of
discretion for a district court . . . where, in ruling on a motion to dismiss for
[forum non conveniens
], it fails to address and balance the relevant principles
and factors of the doctrine[.]” In re Lloyd’s Register N. Am., Inc., 780 F.3d 283,
290 (5th Cir. 2015) (internal citation and quotation marks omitted). Given that
we are presented with this precise scenario and because we are bound by our
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precedent as set forth in Lloyds, a “limited remand is appropriate to allow the
district court the opportunity to explain its reasons for dismissal.” See Sultana
Entertainment, L.L.C. v. Gutierrez, 740 F. App’x 81, 82 (5th Cir. 2018) (per
curiam) (unpublished).
III. Conclusion
We REMAND with instructions that the district court enter its reasons
for dismissal within thirty days of this order. After entry of such reasons, the
case will be returned to this panel, which retains jurisdiction during the
pendency of this limited remand.

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