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Schwarz v. St. Jude Medical, Inc.

Court of Appeals of North Carolina

August 1, 2017

MOLLY SCHWARZ, Plaintiff,
v.
ST. JUDE MEDICAL, INC., ST. JUDE MEDICAL S.C., INC., DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEM, INC., ERIC DELISSIO, TED COLE, and THOMAS J. WEBER, JR., Defendants.

          Heard in the Court of Appeals 7 June 2017.

         Appeal by plaintiff from order entered 21 September 2016 by Judge Carla N. Archie in Mecklenburg County Superior Court No. 16 CVS 3613

          Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harvey L. Kennedy and Harold L. Kennedy III, for plaintiff-appellant.

          Parker Poe Adams & Bernstein LLP, by Keith M. Weddington, and Dorsey & Whitney LLP, by Meghan Des Lauriers, for defendant-appellees St. Jude Medical, Inc. and St. Jude Medical S.C., Inc.

          ELMORE, Judge.

         The Mecklenburg County Superior Court dismissed plaintiff's complaint against her former employer, St. Jude Medical S.C., Inc., and its parent company, St. Jude Medical, Inc., because the forum-selection clause in the employment agreement designates Ramsey County, Minnesota, as the exclusive venue to litigate plaintiff's claims. Pursuant to N.C. Gen. Stat. § 22B-3 (2015), "any provision in a contract entered into in North Carolina that requires the prosecution of any action . . . that arises from the contract to be instituted or heard in another state is against public policy and is void and unenforceable." Because the employment agreement was "entered into in North Carolina, " not Texas as the trial court concluded, the forum-selection clause is void and unenforceable under N.C. Gen. Stat. § 22B-3. Reversed.

         I. Background

         Plaintiff Molly Schwarz is a resident of Mecklenburg County. Defendants St. Jude Medical and St. Jude Medical S.C. are Minnesota corporations doing business in Mecklenburg County. St. Jude Medical S.C. has its principal office in Austin, Texas.

         Plaintiff was employed as a clinical specialist with St. Jude Medical S.C. from 2004 to 2009. St. Jude Medical S.C. employs a sales team that sells medical devices to hospitals, clinics, and other medical providers. In her role, plaintiff supported the sales representatives and their provider accounts, including Duke University and Duke University Health Systems, Inc. (collectively, Duke), where Dr. Thomas J. Weber Jr. was employed.

         After her first term of employment ended, plaintiff re-applied for the same position. On 27 August 2012, she executed an at-will employment agreement with St. Jude Medical S.C. and began working. The agreement addresses standard employment issues including duties, compensation, and termination. It also contains the following choice-of-law and forum-selection provisions:

Governing Law. This Agreement will be governed by the laws of the state of Minnesota without giving effect to the principles of conflict of laws of any jurisdiction.
Exclusive Jurisdiction. All actions or proceedings relating to this Agreement will be tried and litigated only in the Minnesota State or Federal Courts located in Ramsey County, Minnesota. Employee submits to the exclusive jurisdiction of these courts for the purpose of any such action or proceeding, and this submission cannot be revoked. Employee understands that Employee is surrendering the right to bring litigation against SJMSC outside the State of Minnesota.

         Plaintiff signed the agreement in North Carolina and faxed it to a representative of St. Jude Medical S.C. in Austin, Texas, where, on 13 September 2012, Keith Boettiger executed the agreement on behalf of St. Jude Medical S.C. By its terms, the agreement was effective as of 4 September 2012.

         Plaintiff's sales team worked primarily with Duke. In July 2014, plaintiff reported to management that Dr. Weber was involved in an extramarital affair with one of plaintiff's co-workers. When Ted Cole, a manager for St. Jude Medical S.C., spoke with Dr. Weber about the allegations, Dr. Weber was "irate." He told Cole that plaintiff was in his clinic "talking to his staff members around patients" about his personal life. Dr. Weber demanded a letter of apology and informed Cole that plaintiff was no longer welcome in the Duke-Raleigh system, which comprised more than 85 percent of St. Jude Medical S.C.'s Raleigh territory.

         Seven months later, on Friday, 27 February 2015, Cole received an e-mail from a patient who reported feeling "very uncomfortable" during an appointment with plaintiff. The patient complained that plaintiff read the film backwards, exposed the patient to unnecessary radiation, and several times during three visits she was "loud, " "argumentative, " and asked "the same questions over and over again." Cole forwarded the e-mail to his manager, Eric Delissio, who in turn sent the e-mail to human resources. Plaintiff was terminated the following Monday.

         Plaintiff filed a complaint in Mecklenburg County Superior Court alleging claims of wrongful discharge from employment in violation of public policy and libel against St. Jude Medical and St. Jude Medical S.C.; tortious interference with contractual rights and libel against Cole and Delissio; and tortious interference with contractual rights against Duke and Dr. Weber.

         St. Jude Medical and St. Jude Medical S.C. (collectively, the St. Jude defendants) moved to dismiss plaintiff's complaint pursuant to Rule 12(b)(3) of the North Carolina Rules of Civil Procedure.[1] The St. Jude defendants argued that venue in Mecklenburg County was improper because the forum-selection clause in the employment agreement provides that all claims related to the agreement must be litigated in the state or federal courts located in Ramsey County, Minnesota. Although out-of-state forum-selection clauses are void and unenforceable in North Carolina, see N.C. Gen. Stat. § 22B-3, the St. Jude defendants averred that the contract was not formed in this State.

         The trial court granted the St. Jude defendants' motion to dismiss for improper venue. The court concluded that the agreement was formed in Texas, rather than North Carolina, because Boettiger's signature was the "the last essential act." As such, N.C. Gen. Stat. § 22B-3 did not apply and the forum-selection clause was valid, reasonable, and enforceable. The court also concluded that requiring plaintiff to prosecute her claims in Minnesota "is not seriously inconvenient" and would not effectively deprive her of her day in court. Plaintiff timely appeals.

         II. Discussion

         A. Jurisdiction

         We first address whether plaintiff has vested jurisdiction in this Court to review her appeal on the merits. "An order . . . granting a motion to dismiss certain claims in an action, while leaving other claims in the action to go forward, is plainly an interlocutory order." Pratt v. Staton, 147 N.C.App. 771, 773, 556 S.E.2d 621, 623 (2001). "An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (citation omitted). "Generally, there is no right of immediate appeal from interlocutory orders or judgments." Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). An appeal may be taken only from those "judgments and orders as are designated by the statute regulating the right of appeal." Veazey, 231 N.C. at 362, 57 S.E.2d at 381; see, e.g., N.C. Gen. Stat. § 1-277 (2015); id. § 1A-1, Rule 54(b); id. § 7A-27(b).

         Plaintiff appeals from an interlocutory order dismissing her claims against the St. Jude defendants while allowing her other claims to move forward against defendants Cole, Delissio, Duke, and Dr. Weber. While the order was "a final judgment as to one or more but fewer than all of the claims or parties, " N.C. Gen. Stat. § 1A-1, Rule 54(b), the trial court did not certify the order for immediate appellate review. By virtue of the ...


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