in the Court of Appeals 7 June 2017.
by plaintiff from order entered 21 September 2016 by Judge
Carla N. Archie in Mecklenburg County Superior Court No. 16
Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harvey L.
Kennedy and Harold L. Kennedy III, for plaintiff-appellant.
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.
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. §
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.
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
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
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
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.
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
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
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.
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. 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.
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
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.
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 ...