Ina Collins v. Mary Kay Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 16-3178
___________

INA M. COLLINS,
On behalf of herself and all other similarly situated persons,

Appellant

v.

MARY KAY, INC.; ABC CORP.; JANE AND JOHN DOES,
the latter parties’ names being currently unknown and
fictitious
____________________________________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 15-cv-07129)
District Judge: Honorable Madeline C. Arleo
____________________________________

Argued: January 26, 2017

Before: CHAGARES, RESTREPO, and ROTH, Circuit
Judges.

(Filed: October 19, 2017)
 _____________

RAVI SATTIRAJU, ESQ. [ARGUED]
The Sattiraju Law Firm
116 Village Boulevard
Princeton, NJ 08540
Counsel for Appellant

CHRISTINE A. AMALFE, ESQ. [ARGUED]
STEVEN G. SANDERS, ESQ.
RICHARD S. ZACKIN, ESQ.
Gibbons P.C.
One Gateway Center
Newark, NJ 07102
Counsel for Appellee Mary Kay, Inc.

___________

OPINION OF THE COURT

RESTREPO, Circuit Judge.

Plaintiff-Appellant Ina M. Collins, who worked as a
beauty consultant in New Jersey for Defendant-Appellee Mary
Kay, Inc. brought this putative class action in the United States
District Court for the District of New Jersey, claiming that
certain Mary Kay policies and practices violated the New
Jersey Wage Payment Law (“NJWPL”). Mary Kay moved to
dismiss the suit on forum non conveniens grounds, relying on
two written agreements that set forth terms and conditions of
the parties’ relationship. Both agreements contained forum

2
selection clauses specifying that legal claims would be
submitted to Texas state court. Both also contained choice-of-
law clauses stating that Texas law would apply.

The District Court relied on federal common law in
reaching its decision to grant Mary Kay’s motion. On appeal,
Collins argues that New Jersey law should govern the analysis.
This case thus poses a layered choice-of-law question: what
law governs the interpretation of a forum selection clause in a
written agreement when that agreement also contains a choice-
of-law clause? For the reasons that follow, we conclude that
Texas law applies to the interpretation of the forum selection
clause, and under Texas law, Collins’ claim belongs in Texas
state court. Therefore, we will affirm the District Court’s
dismissal of this action on forum non conveniens grounds.

I

Mary Kay is a Texas-based company that sells
cosmetics to customers via beauty consultants. Collins is a
New Jersey resident who worked as a Mary Kay beauty
consultant in New Jersey in a few capacities, including
“Independent Sales Consultant” and “Independent Sales
Director.” App. 27 ¶ 7. The putative class consists of
individuals who are New Jersey residents and have worked as
Mary Kay beauty consultants, in a variety of titles, from
September 2009 to the present.

Collins and Mary Kay entered into two written
agreements (collectively, “Agreements”) that set forth the
general terms and conditions of their relationship: an
“Independent Beauty Consultant Agreement” and an

3
“Independent Sales Director Agreement.”1 App. 15-25. The
Agreements contained substantively identical forum selection
clauses:

The parties further agree that if any
dispute or controversy arises
between them concerning any
matter relating to this Agreement
that any issues which either party
may elect to submit for legal
jurisdiction shall be submitted to
the jurisdiction of the courts of the
State of Texas and the parties agree
that the proper venue shall be
Dallas, Dallas County, Texas.

App. 16; see also App. 23.

In addition to the forum selection clauses included in
the Agreements, each contained a choice-of-law clause that
specified Texas law would apply to disputes. In the
“Independent Beauty Consultant Agreement,” the choice-of-
law clause states, “This Agreement shall be governed by the
laws of the State of Texas as to all matters.” App. 16. The
choice-of-law clause in the Independent Sales Director
Agreement differs only slightly, stating the “Agreement . . .
shall be governed by the laws of the State of Texas as to all
matters, including but not limited to matters of validity,

1
There is no dispute between the parties regarding the
applicability of these agreements during the relevant time
period.

4
construction, effect and performance.” App. 23.

Collins filed her putative class action complaint in
September 2015 in the United States District Court for the
District of New Jersey, invoking the court’s diversity
jurisdiction pursuant to 28 U.S.C. § 1332. The complaint
contained one count, a violation of the NJWPL, N.J. Stat.
34:11-4.1, et seq. Collins alleged in her complaint that Mary
Kay misclassified her and the putative class members as
independent contractors, rather than employees, under the
standards of the NJWPL. Collins further alleged that Mary
Kay unlawfully required consultants to divert wages by
mandating that they purchase Mary Kay marketing materials,
uniforms, and a minimum quota of products in order to
maintain their titles as consultants. These practices, according
to Collins, violated the NJWPL.

In November 2015, Mary Kay moved to dismiss
Collins’ complaint for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6) and on forum non conveniens
grounds. In support of its forum non conveniens argument,
Mary Kay pointed to the forum selection clauses included in
the Agreements and contended that the only proper forum for
Collins’ claim was Texas state court. In June 2016, the District
Court granted Mary Kay’s motion and dismissed the complaint
on forum non conveniens grounds, finding that Texas was the
appropriate forum under the terms of the forum selection
clause. This appeal followed.

5
 II

The District Court had jurisdiction pursuant to 28
U.S.C. § 1332. We have appellate jurisdiction over the final
order of the District Court pursuant to 28 U.S.C. § 1291.

The standard of review that we must apply to a district
court’s dismissal on forum non conveniens grounds is unsettled
after the Supreme Court’s 2013 decision in Atlantic Marine
Construction Co. v. U.S. District Court for the Western Dist.
of Texas, 134 S. Ct. 568 (2013), as several circuit courts have
recognized in recent opinions. See, e.g., Weber v. PACT XPP
Techs., AG, 811 F.3d 758, 766-68 (5th Cir. 2016); Martinez v.
Bloomberg LP, 740 F.3d 211, 217 (2d Cir. 2014). Atlantic
Marine clarified that forum non conveniens is the proper
mechanism for enforcing a forum selection clause that points
to a state or foreign forum. Atlantic Marine, 134 S. Ct. at 580.
Atlantic Marine did not address, however, what standard of
review an appellate court should use when considering a
district court’s forum non conveniens dismissal. Nevertheless,
we need not resolve that issue here, because even under the
least deferential de novo standard, the District Court’s decision
to dismiss this case on forum non conveniens grounds must be
affirmed.

III

A

Collins centers her appeal on the proper interpretation
of the Agreements’ forum selection clauses. Specifically, she
argued in her opening brief that we should reverse the District
Court’s dismissal because her claim is outside the scope of the

6
forum selection clause included in the Agreements.2 A court
considering the interpretation of a forum selection clause
applies principles of contract law to determine the scope of the
clause. See John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119
F.3d 1070, 1073 (3d Cir. 1997) (noting that “[t]he question of
the scope of a forum selection clause is one of contract
interpretation”). In other words, it decides “whether the claims
and parties involved in the suit are subject” to the clause.
Martinez, 740 F.3d at 217 (quoting Phillips v. Audio Active
Ltd., 494 F.3d 378, 383 (2d Cir. 2007)).

The interpretation of a forum selection clause is an
analytically distinct concept from the enforceability of that
clause. Weber, 811 F.3d at 770; see also Martinez, 740 F.3d at
217. A court examining the enforceability of a clause
considers whether compelling compliance with the clause is
“‘unreasonable’ under the circumstances.” Foster v.
Chesapeake Ins. Co., 933 F.2d 1207, 1219 (3d Cir. 1991)
(quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10
(1972)); Weber, 811 F.3d at 773-75; see also Martinez, 740

2
Plaintiff reiterated in her reply brief and at oral
argument that her focus was on the scope of the clause, not its
enforceability. Appellant’s Reply Br. 1 (summarizing her
argument as “[Collins’s] statutory employment claim under the
[NJWPL] is not within the scope of the forum selection clause
. . . on which the District Court based the dismissal”); Oral Arg.
at 1:20 (explaining “what we’re arguing is that . . . this statutory
matter falls outside the scope of the forum selection clause”).
Likewise, in her briefing before the District Court in opposition
to Mary Kay’s motion to dismiss, Collins focused on the scope
of the clause, not its enforceability.

7
F.3d at 217-19. Collins has not raised as an issue in this appeal
the enforceability of the Agreements’ forum selection clauses.
Collins does not suggest, for instance, that Mary Kay “obtained
[her] accession to the forum clause by fraud or overreaching.”
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991);
accord M/S Bremen, 407 U.S. at 15; Foster, 933 F.2d at 1219.
Nor does she argue that litigating her wage claim in Texas “will
be so gravely difficult and inconvenient that [s]he will for all
practical purposes be deprived of h[er] day in court.” M/S
Bremen, 407 U.S. at 18. And she has not outlined how
enforcement of the forum selection clauses would “contravene
a strong public policy” of New Jersey. Id. at 15.

Our review focuses accordingly on the clauses’ scope.

B

Before we can determine the scope of the forum
selection clauses in the Agreements, we must establish what
body of law should govern our interpretation. Under the
familiar doctrine of Erie Railroad v. Tompkins, 304 U.S. 64,
78 (1938), federal courts sitting in diversity jurisdiction apply
state law to substantive issues and federal law to procedural
issues. Here, the District Court applied federal law to its entire
analysis, reasoning that questions of venue are procedural
rather than substantive in nature. But in selecting this body of
law, the District Court did not draw any distinction between
questions of the clauses’ enforceability and questions of
interpretation.

Applying federal law to questions of enforceability of
forum selection clauses comports with settled law in this

8
Circuit.3 Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d
Cir. 1995). Doing so “ensure[s] that federal courts account for
both the important interests served by forum selection clauses
and the strong public policies that might require federal courts
to override such clauses.” Martinez, 740 F.3d at 220. Further,
it “accords with the traditional divide between procedural and
substantive rules developed under Erie.” Id. at 221. The same
cannot be said for interpretation questions, however.

Issues of contract interpretation are considered
“quintessentially substantive,” rather than procedural, under
Erie. Id.; cf. Beazer E., Inc. v. Mead Corp., 34 F.3d 206, 212
(3d Cir. 1994) (the “interpretation of a private contract is
generally thought to be a question of state law,” rather than
federal common law).4 Therefore, as a general rule in diversity

3
The majority of our sister circuits also apply federal
law when deciding whether to enforce a forum selection
clause. See Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d
643, 651 (4th Cir. 2010); Wong v. PartyGaming Ltd., 589 F.3d
821, 826-28 (6th Cir. 2009); Fru-Con Constr. Corp. v.
Controlled Air, Inc., 574 F.3d 527, 538 (8th Cir. 2009); Ginter
ex rel. Ballard v. Belcher, Prendergast & Laporte, 536 F.3d
439, 441 (5th Cir. 2008); Phillips, 494 F.3d at 384; P & S Bus.
Machs., Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir.
2003); Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509,
513 (9th Cir. 1988); 14D Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 3803.1 n.105
(collecting cases).
4
See also In re County of Orange, 784 F.3d 520, 530
(9th Cir. 2015) (“[R]ules of contract interpretation and
construction are plainly substantive under Erie.”); Eaton v.

9
cases, courts should apply state contract law to decide
interpretation questions. Courts may deviate from this general
rule and apply federal common law to contract interpretation
questions only in certain “‘restricted’ areas,” including where
there are “uniquely federal interests” at stake, and where
Congress has delegated power to the federal courts to develop
substantive law on a particular subject. Martinez, 740 F.3d at
221-22 (quoting Texas Indus., Inc. v. Radcliff Materials, Inc.,
451 U.S. 630, 640 (1981)); Miree v. DeKalb Cty., 433 U.S. 25,
29-31 (1977); Wheeldin v. Wheeler, 373 U.S. 647, 651-52
(1963). Here, the Agreements at issue – contracts between two
purely private parties that set forth the terms and conditions of
their relationship and do not implicate any federal interests –
most certainly fall outside of these “restricted areas.”

The Second and Fifth Circuits, in recent opinions,
explored the question of whether federal common law should
apply to forum selection clause interpretation, as is the practice
for questions of enforceability. Weber, 811 F.3d at 770-71;
Martinez, 740 F.3d at 222-25. Both concluded that federal law
should not apply. Weber, 811 F.3d at 770-71; Martinez, 740

Penn-America Ins. Co., 626 F.3d 113, 114 (1st Cir. 2010)
(noting that state law “supplie[d] the substantive rules of
decision . . . relating to interpretation of the insurance
[agreement]” at issue); Coplay Cement Co. v. Willis & Paul
Grp., 983 F.2d 1435, 1438 (7th Cir. 1993) (explaining that
rules of contract interpretation are “considered substantive
under the Erie doctrine . . . because . . . they are concerned
primarily with the channeling of behavior outside the
courtroom . . . rather than with the allocation of responsibilities
among judicial decision-makers” (internal quotation marks and
citations omitted)).

10
F.3d at 224. Although it was not a diversity case, the Second
Circuit nevertheless explained in Martinez why applying
federal common law to interpret a forum selection clause
frustrates the principles of Erie. “[C]onstruing a forum
selection clause,” the court reasoned, may involve “a wide
range of contract law issues, from the treatment of ambiguous
phrases . . . to the admissibility of parol evidence . . . to
successorship and the rights of third-party beneficiaries.”
Martinez, 740 F.3d at 221 (citations omitted). Applying
federal common law to these issues would “generate a
sprawling ‘federal general common law’ of contracts,” which
the Supreme Court in Erie advised courts to avoid. Id.
Applying state contract law to these issues eliminates this Erie
problem.

Our precedent stands in harmony with this approach. In
Jumara v. State Farm Insurance Co., we stated broadly that
“[b]ecause ‘[q]uestions of venue and the enforcement of forum
selection clauses are essentially procedural, rather than
substantive, in nature,’ . . . federal law applies in diversity
cases.” Jumara, 55 F.3d at 877 (quoting Jones v. Weibrecht,
901 F.2d 17, 19 (2d Cir. 1991) (emphasis added)). But our
analysis in Jumara focused on the enforceability of the forum
selection clause. Id. Further, the Second Circuit’s opinion in
Jones, upon which we relied in Jumara, dealt exclusively with
enforceability. To the extent we addressed clause
interpretation in Jumara, we did not explicitly note what body
of law applied, and we cited sparingly in our interpretation
discussion to both state and federal law. Id. at 880-82.

Unlike Jumara, our subsequent decision in John Wyeth
& Brother Ltd. v. CIGNA International Corp. focused on
forum selection clause interpretation. 119 F.3d at 1073-74.

11
But because the parties did not appear to dispute which body
of law governed the interpretation, we simply applied “general
contract law principles” to determine that the clause
encompassed the plaintiff’s claim. Id. at 1074. More recently,
in Carlyle Investment Management LLC v. Moonmouth Co. SA,
779 F.3d 214 (3d Cir. 2015), we referenced both Delaware
state law and federal law when interpreting the scope of the
forum selection clause at issue, without explicitly addressing
which law controlled. Id. at 220-21.

In sum, we find no reason under this Circuit’s precedent
or the Erie doctrine to apply federal common law to interpret
the forum selection clauses in the Agreements here.
Accordingly, we will apply state contract law to assess the
scope of the clauses and decide whether they encompass
Collins’ NJWPL claim.

C

1

Having established that state contract law, rather than
federal common law, governs the interpretation of the forum
selection clauses here, we must now determine which state’s
contract law applies. In diversity cases such as this one, we
look to the choice-of-law rules of the forum state – the state in
which the District Court sits – in order to decide which body
of substantive law to apply to a contract provision, even where
the contract contains a choice-of-law clause. See Klaxon Co.
v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (holding
that a federal court sitting in diversity must apply the choice-
of-law rules of the forum state); Kruzits v. Okuma Mach. Tool,
Inc., 40 F.3d 52, 55 (3d Cir. 1994) (applying Pennsylvania’s

12
choice-of-law rules in diversity case, despite the presence of
choice-of-law clause selecting Illinois law, and concluding that
Illinois law governs interpretation of indemnity clause of a
lease agreement); see also Weber, 811 F.3d at 770-71
(explaining that “the presence or absence of a specific choice-
of-law clause does not alter the core obligation of a federal
court, sitting in diversity, to ascertain which body of
substantive law to apply by implementing the choice-of-law
rules of its home jurisdiction”); Fireman’s Fund Ins. Co. v.
Great Am. Ins. Co. of N.Y., 822 F.3d 620, 641 (2d Cir. 2016);
H & R Block Tax Servs. LLC v. Franklin, 691 F.3d 941, 943
(8th Cir. 2012); Hitachi Credit Am. Corp. v. Signet Bank, 166
F.3d 614, 623-24 (4th Cir. 1999); Kohler v. Leslie Hindman,
Inc., 80 F.3d 1181, 1184-85 (7th Cir. 1996).5

We thus turn to New Jersey choice-of-law rules to
determine what state’s substantive contract law governs the
interpretation of the Agreements’ forum selection clauses,
since this diversity action originated in a New Jersey federal
district court. New Jersey choice-of-law rules provide that
“[o]rdinarily, when parties to a contract have agreed to be
governed by the laws of a particular state, New Jersey courts
will uphold the contractual choice.” Instructional Sys., Inc. v.
Comput. Curriculum Corp., 614 A.2d 124, 133 (N.J. 1992)
(citing Restatement (Second) of Conflicts of Laws § 187 (Am.

5
In Martinez, the Second Circuit held that the law
selected in the relevant agreement’s choice-of-law clause
applied to interpret the forum selection clause, without
conducting a choice-of-law analysis. Martinez, 740 F.3d at
220. But Martinez was not a diversity case; it was a federal
question case in which the relevant agreement invoked
international law.

13
Law Inst. 1969) (“Restatement”)). This rule honoring the
parties’ selected law serves the “[p]rime objectives of contract
law . . . to protect the justified expectations of the parties and
to make it possible for them to foretell with accuracy what will
be their rights and liabilities under the contract.” Restatement
§ 187 cmt. e. Eliminating uncertainties about which law
governs may be particularly critical where, as here, the parties
reside in and perform their contractual obligations in different
jurisdictions. A court should not depart from this rule and
“refrain from applying the [parties’] chosen law merely
because this would lead to a different result than would be
obtained under the . . . law” of the forum state. Id. § 187 cmt.
g.

Parties’ freedom to choose the law applicable to their
agreements is not without boundaries in New Jersey law. New
Jersey looks to Restatement § 187 to determine under what
circumstances a choice-of-law clause will not be respected.
Instructional Sys., 614 A.2d at 133. Specifically, the
Restatement provides that the parties’ contractual choice will
not govern if:

(a) the chosen state has no
substantial relationship to the
parties or the transaction and there
is no other reasonable basis for the
parties’ choice, or (b) application
of the law of the chosen state
would be contrary to a
fundamental policy of a state
which has a materially greater
interest than the chosen state in the
determination of the particular

14
 issue and which . . . would be the
state of the applicable law in the
absence of an effective choice of
law by the parties.

Id. (quoting Restatement § 187(2)). In essence then, the law
specified in the Agreements – Texas law – should control the
interpretation of the forum selection clause unless the choice-
of-law clause itself is unenforceable in this context.

Collins has not demonstrated that either of the two
exceptions outlined in Restatement § 187(2) should apply.
There is no dispute that the parties have a substantial
relationship to the state of Texas.6 Further, Collins has not
shown why New Jersey has a “materially greater interest” in
the application of its own contract law to the interpretation of
the forum selection clauses, or how the application of Texas
contract law to interpret the scope of the forum selection
clauses would offend the “fundamental policy” of New Jersey.7

6
Any dispute by Collins on this point would have been
unavailing, as Mary Kay is headquartered in Texas.
Instructional Sys., 614 A.2d at 133 (finding that since one of
the parties, a Delaware corporation, was headquartered in
California, California law had a substantial relationship to the
parties); see also Restatement § 187, cmt. f (noting that a
“substantial relationship” will be found “where one of the
parties . . . has [its] principal place of business” in the “state of
the chosen law”).
7
Despite the presence of the choice-of-law clauses in
the Agreements in this case, Collins did not address Texas
substantive law in her briefing to the District Court or in her

15
Accordingly, we will apply Texas contract law to interpret the
scope of the forum selection clause in the Agreements.

2

Under Texas contract law, the Agreements’ forum
selection clauses encompass Collins’ wage claim. As noted
above, the forum selection clauses in the Agreements provided
that “if any dispute or controversy arises between [the parties]
concerning any matter relating to this Agreement,” the case
must be filed in Texas state court.8 App. 16, 23 (emphasis
added). Collins argues that because her claim is not for breach
of contract, it is not within the scope of the forum selection
clauses. Yet Collins concedes in her supplemental briefing that

opening brief to this Court. In response to this Court’s request
for supplemental briefing on the applicability of Texas law,
Collins again did not address whether and how the application
of Texas law to interpret the forum selection clause would
offend fundamental New Jersey policy. Collins cursorily states
in her reply brief that the Agreements’ choice-of-law clauses
should be invalidated because they fail to include an
unambiguous waiver of statutory claims like her NJWPL
claim. At this stage of the analysis, however, the “particular
issue” of concern is not whether the choice-of-law clause
should apply to Collins’ underlying wage claim, but whether it
applies to the interpretation of the forum selection clause. See
Restatement § 187(2)(b).
8
There is no dispute in this case that the Agreements’
forum selection clauses were mandatory in effect, requiring
parties to bring the claims in Texas state court, rather than just
permissive. See Phillips, 494 F.3d at 383-84.

16
courts applying Texas law “interpret forum selection clauses
covering claims ‘relating to’ an agreement as broad in scope.”
Appellant’s Supp. Br. 4; see also In re Longoria, 470 S.W.3d
616, 628 (Tex. App. 2015) (collecting relevant cases and
noting that “courts have consistently held the language ‘any
interpretation, dispute, or any aspect related to’ is broad”);
RSR Corp. v. Siegmund, 309 S.W.3d 686, 701-02 (Tex. App.
2010) (finding that where a forum selection clause covers
claims that “relate to” an agreement, it “encompass[es] all
claims that have some possible relationship with the
agreement” or some “connection with” the agreement
(citations omitted)). Collins has not cited to authority applying
Texas law to exclude wage claims from a forum selection
clause of comparable breadth to the clauses here.

Indeed, courts applying Texas law have held that forum
selection clauses with broad language, like that used in the
Agreements, encompass a variety of non-contractual claims,
including statutory claims. For instance, in Barnette v. United
Research Co., 823 S.W.2d 368 (Tex. App. 1991), a Texas court
held that a forum selection clause included within an
employment agreement applied to claims of age
discrimination, since the claim arose out of the employment
relationship between the parties and implicated the terms of the
agreements. Id. at 369-70 (citing Crescent Int’l, Inc. v. Avatar
Communities, Inc., 857 F.2d 943, 944 (3d Cir. 1988)). In
Accelerated Christian Education, Inc. v. Oracle Corp., 925
S.W.2d 66 (Tex. App. 1996), overruled in part on other
grounds, In re Tyco Elecs. Power Sys., Inc., 2005 WL 237232,
at *4 & n.1 (Tex. App. 2005), another Texas court held that the
plaintiff’s claim for violation of state consumer protection
statutes, among others, was within the scope of a forum
selection clause that, by its terms, encompassed claims

17
“relating to” software licensing and service agreements. Id. at
71-72. Likewise, in Young v. Valt.X Holdings, Inc., 336
S.W.3d 258 (Tex. App. 2010), a court held that the forum
selection clause covering claims “arising under or relating to”
a stock purchase agreement applied to claims for violations of
the state securities act and state consumer protection law. Id.
at 263.

By contrast, in Busse v. Pacific Cattle Feeding Fund #1,
Ltd., 896 S.W.2d 807 (Tex. App. 1995), the court held that the
forum selection clause in the agreement did not encompass the
plaintiff’s tort claim for fraudulent inducement. Id. at 812-13.
The clause language in Busse differed from that in Accelerated
and Young; it stated that it applied only to the “agreement and
the rights and obligations of the parties arising hereto.” Id. at
812-13. Thus, the court’s narrow interpretation of the clause
in Busse to exclude the plaintiff’s tort claim could be explained
by the specific language chosen by the parties that limited its
application to claims arising under the contract itself. See id.
In sum, the applicability of a forum selection clause to a
plaintiff’s statutory claims “d[oes] not turn on the presence of
contractual claims,” but rather turns on “the language of the
particular forum selection clause to which the parties agreed.”
Robbins & Myers, Inc. v. J.M. Huber Corp., 2002 WL 418206,
at *2 (Tex. App. 2002).

Like the age discrimination claim in Barnette, Collins’
wage claim “relates to” her working relationship with Mary
Kay and thus implicates the contents of the Agreements. The
Agreements establish the relationship between Collins and
Mary Kay and outline its terms and conditions. While the
Agreements themselves are not determinative of whether
Collins qualifies as an “employee” afforded wage law

18
protection or an unprotected “independent contractor,” the
Agreements will be relevant to understanding the contours of
the parties’ affiliation. Further, the Agreements touch on
consultants’ purchases from the company, a key issue in
Collins’ sole claim: that Mary Kay mandated certain prohibited
payments from its beauty consultants. In the absence of
authority suggesting that Texas law would interpret this broad
forum selection clause to exclude Collins’ wage claim, we hold
her claim falls within its scope.

D

Having concluded that Collins’s claim falls within the
scope of the Agreements’ enforceable forum selection clauses,
we turn finally to the District Court’s application of the forum
non conveniens framework, as modified by the Supreme Court
in Atlantic Marine. As the District Court outlined, in this
Circuit, four factors normally guide a district court’s
application of the doctrine of forum non conveniens in the
absence of a forum selection clause:

(1) the amount of deference to be
afforded to plaintiffs’ choice of
forum; (2) the availability of an
adequate alternative forum where
defendants are amenable to
process and plaintiffs’ claims are
cognizable; (3) relevant ‘private
interest’ factors affecting the
convenience of the litigants; and
(4) relevant ‘public interest’
factors affecting the convenience
of the forum.

19
Kisano Trade & Invest Ltd. v. Lemster, 737 F.3d 869, 873 (3d
Cir. 2013) (quoting Windt v. Qwest Commc’ns Int’l, Inc., 529
F.3d 183, 189-90 (3d Cir. 2008)). Atlantic Marine instructs
that a forum selection clause alters this analysis in several
ways. Relevant here, a plaintiff’s choice of forum in filing his
or her lawsuit “merits no weight,” and we are not to consider
any arguments about the parties’ private interests – those
“weigh entirely in favor of the preselected [Texas] forum.”
Atlantic Marine, 134 S. Ct. at 581-82. So then, all we are to
consider are the second and fourth factors, which Atlantic
Marine advises will overcome a forum selection clause in only
the most “unusual” and “extraordinary” circumstances. Id.

Collins has not disputed the availability of another
forum to hear her claim. Nor has she addressed with any
specificity the public interest factors that could favor litigation
in New Jersey federal court over Texas state court.9 As the

9
These “[p]ublic-interest factors may include ‘the
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.’” Atlantic Marine, 134
S. Ct. at 581 (quoting Piper Aircraft Co. v. Reyno, 454 U.S.
235, 241 n.6 (1981)); see also In re Howmedica Osteonics
Corp, 867 F.3d 390, 402 n.7 (3d Cir. 2017) (“[W]e clarify that
‘practical problems that make trial of a case easy, expeditious,
and inexpensive’ represent a private interest, as the Supreme
Court stated in Atlantic Marine, and as we have often stated in
the forum non conveniens context, [] we acknowledge judicial
economy considerations to be a distinct, cognizable public
interest.” (citations omitted)).

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party resisting the application of a forum selection clause,
Collins bears a heavy burden under Atlantic Marine. Id. at 582.
She has failed to carry that burden in this case. Therefore, the
District Court correctly granted Mary Kay’s motion and
dismissed this action on forum non conveniens grounds.

We are mindful of the predicament that could arise for
a plaintiff who (a) performs work in her home state for a
company headquartered in another state, (b) seeks the
substantive protections guaranteed by her home state’s wage
payment law; and (c) is subject to forum selection and choice-
of-law clauses in her employment agreement that point outside
of her home state. But it is incumbent on plaintiffs in those
situations to challenge the enforceability of the forum selection
clauses and to outline for the lower court exactly how they
stand to be deprived of the wage payment protections they are
otherwise guaranteed. Collins made no attempt to do so in this
case.

IV

For the foregoing reasons, we will affirm the decision
of the District Court to dismiss this action on forum non
conveniens grounds.

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