     Case: 19-20423      Document: 00515428412         Page: 1    Date Filed: 05/26/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 19-20423                            May 26, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
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
                        for the Southern District of Texas
                             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. Because the district court did not provide written reasons for its




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 19-20423
dismissal, we remanded for that limited purpose. Reviewing now on remand,
with the benefit of the district court’s explanation, we affirm.
                   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. Perry worked as a sales agent for BergHOFF from April to
October 2018. After her employment with the company ended, 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.
      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
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 arguing primarily that she should not be bound by
the forum selection clause because her claims against BergHOFF arise under
the FLSA, not her employment contract.
                                 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
                                            2
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                                  No. 19-20423
F.3d 758, 766 (5th Cir. 2016). We review its balancing of the private and public
interest factors for abuse of discretion. Id.
      In its memorandum opinion on remand, the district court stated that it
had determined that the language of the forum selection clause was
mandatory, not permissive. It then turned to 28 U.S.C. § 1404(a) and concluded
that the parties had contractually consented to venue in Pasco County,
Florida—specifically, a Florida state circuit or county court. The district court
noted that the parties had bargained and agreed on the venue, and therefore,
were bound by their bargain. Additionally, the district court observed that the
convenience of the parties and witnesses was inconsequential because
plaintiffs sought to establish a FLSA class claim involving numerous plaintiffs
throughout the country. The district court concluded that because it was not
authorized to transfer the case to another federal court, and because the
parties had not consented to a federal forum at the time of the motion, it has
no alternative but to dismiss the case. We agree.
      Our review of the record, the parties’ briefs, and our analysis of the
district court’s memorandum opinion on remand leads us to conclude that the
district court was correct in determining that the forum selection clause here
was mandatory and enforceable between the parties. Accordingly, we affirm
the district court’s judgment for the reasons stated therein. Moreover, for the
reasons stated in our previous opinion, we continue to reject Perry’s argument
that her claims arise under the FLSA and not her employment contract. See
Perry v. BergHOFF Int’l Inc., No. 19-20423, 2020 WL 1777840, at *2 (5th Cir.
Apr. 8, 2020) (per curiam) (unpublished).
                                III. Conclusion
      The district court’s judgment dismissing Perry’s suit on grounds of forum
non conveniens is affirmed.


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