Lewis v. Nat'l Bd. of Osteopathic Med. Examiners, Inc.

SHARMAINE LEWIS, Plaintiff, v. NATIONAL BOARD OF OSTEOPATHIC MEDICAL EXAMINERS, INC., Defendant.

CIVIL ACTION NO. 20-4368

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

December 10, 2020

DuBois, J.

MEMORANDUM

I. INTRODUCTION

In this case arising under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, plaintiff Sharmaine Lewis alleges that defendant National Board of Osteopathic Medical Examiners, Inc. ("NBOME") denied her appropriate testing accommodations on the Comprehensive Osteopathic Medical Licensing examination, Level 2-Cognitive Evaluation ("COMLEX II CE"), a standardized examination and requirement for osteopathic medical licensure. Presently before the Court is Defendant NBOME's Motion to Transfer per § 1404(a) and Forum Selection Clause. For the reasons set forth below, the Motion is granted.

II. BACKGROUND¹

Based on the Complaint, the declaration and deposition of Joseph Flamini, Vice-President and Chief Operating Officer of NBOME, and other submissions of record, the facts of the case may be summarized as follows:

A. Plaintiff's ADA Claim

Plaintiff is in her final year of medical school at West Virginia School of Osteopathic Medicine (WVSOM). Compl. ¶ 7. Defendant NBOME "develops, provides and scores a three-level 'Comprehensive Osteopathic Medical Licensing Examination' ('COMLEX-USA') that is accepted by state licensing boards in all fifty states in the United States to assure that applicants for medical licensure are competent to safely practice osteopathic medicine." Flamini Decl. ¶ 4. "[E]ach COMLEX-USA examination is administered in a standardized, time-measured environment." Id. ¶ 8. Defendant is the sole administrator of the COMLEX-USA examinations. Flamini Dep. 29:5-11.

Plaintiff "is substantially impaired by a Specific Learning Disorder with impairments in reading. This condition substantially limits the major life activities of reading, thinking, learning, processing and taking timed examination, which are activities necessary to take the COMLEX [II] under standard conditions." Compl. ¶ 13. Plaintiff "has been approved for accommodations in various academic settings and on several standardized examinations." Id. ¶ 26. However, "NBOME has previously and continues to deny [plaintiff's] requests for appropriate accommodations on its examinations . . . ." Id. ¶ 7.

In 2017, plaintiff requested accommodations for the COMLEX I—"50% extended time and a distraction reduced testing environment." Id. ¶ 37. Defendant denied her request. Id. ¶ 41. Nevertheless, plaintiff took the COMLEX I without accommodations and passed. Id. ¶¶ 42-43. In January 2019, plaintiff applied for the same accommodations for the COMLEX II and was again denied. Id. ¶¶ 47-48. Plaintiff has taken the COMLEX II a total of three timesbut has never passed.² Id. ¶ 66. In order to obtain a medical degree and obtain a residency, a student of osteopathic medicine must pass COMLEX I, COMLEX II and COMLEX III. Id. ¶ 8. As a consequence, plaintiff "has been unable to obtain a residency placement and obtain her medical degree." Id.

Plaintiff filed this action on September 4, 2020, seeking, inter alia, declaratory relief under the ADA in the form of an order compelling defendant to grant her accommodation requests with respect to the COMLEX II and all future examinations administered by defendant and taken by plaintiff. Id. ¶¶ 99-100.

B. NBOME's Motion to Transfer

Defendant is an Indiana nonprofit corporation with its principal place of business in Conshohocken, Pennsylvania. Flamini Decl. ¶ 2; Flamini Dep. 26: 1-13. Defendant moves to transfer this case to the United States District Court for the Southern District of Indiana.

In support of its Motion, defendant argues that plaintiff is bound to the Terms and Conditions of the COMLEX examinations. Defendant claims that "[a]ll candidates, including [p]laintiff, intending to take a COMLEX-USA examination must use the online access system at www.nbome.org to register and pay for the examination." Flamini Decl. ¶ 19. Each time plaintiff registered online "to take the [COMLEX I] . . . (3 times), and again online to take the [COMLEX II] . . . (4 times), she clicked the 'Agree to Terms' button, specifically agreeing to the Terms and Conditions of the click-thru agreement."³ Id. ¶ 20. "The Terms and Conditions were readily available to [p]laintiff by clicking the 'View Terms' button during the purchase andregistration process, which she must click in order to proceed." Id. ¶ 22. The Terms and Conditions provide, inter alia:

Candidates are legally bound by the following Terms and Conditions:

(1) Bulletin of Information (BOI). The candidate shall comply with all the terms, conditions, procedures, and obligations of a candidate as set forth in this BOI.

...

(8) Choice of Law. The provisions, terms and conditions of this BOI, including Terms and Conditions accepted by the candidate, shall be governed by and construed only under the laws of the state of Indiana. Any claim by or for the candidate against NBOME or its employees, officers, directors, or agents, and any claim by NBOME against the candidate, arising out or relating to any COMLEX-USA examination, shall be considered and resolved only under the laws of the state of Indiana (to the exclusion of the laws of any other state, and without regard to the conflict of law provisions or law of any state), or under any applicable federal law.

(9) Forum Selection, Personal Jurisdiction. The candidate expressly agrees that any claim, demand, or complaint whatsoever by of for the candidate against NBOME, or any of its employees, officers, directors or agents, shall be brought only in a court of competent jurisdiction located in Marion County, Indiana, to the exclusion of all other courts and jurisdictions. The candidate acknowledges and agrees that NBOME is incorporated as a nonprofit corporation in the state of Indiana, that NBOME examinations are administered throughout the United States, that it is reasonable for the laws of the state of Indiana, the place of incorporation of the NBOME, to be applicable, and that any claim, demand, or complaint by the candidate against the NBOME, its employees, officers, directors, or agents to be brought only in a court of competent jurisdiction located in Marion County, Indiana, to the exclusion of all other state laws and jurisdictions. The candidate expressly agrees and submits to the jurisdiction of courts of competent jurisdiction located in Marion County, Indiana.

Def.'s Ex. B. Defendant contends that "[p]laintiff could not possibly proceed with the examination without first viewing [the] Terms and Conditions . . . and then accepting those Terms and Conditions by clicking the 'Agreed to Terms' button, in order to register to take and purchase the COMLEX-USA examination." Flamini Decl. ¶ 24.

In response, plaintiff claims that venue is proper in the Eastern District of Pennsylvania "because NBOME's corporate executive offices are within this District. Furthermore, NBOMEis doing business in this judicial district by virtue of administering the COMLEX [II], grading certain examinations, transacting business within this district and accordingly has sufficient contacts for personal jurisdiction." Compl. ¶ 6. Additionally, defendant does not own or lease any property or have any employees who work in Indiana. Flamini Dep. 51:7-9; 121:3-5.

On October 16, 2020, defendant filed a Motion to Transfer per § 1404(a) and Forum Selection Clause (Document No. 9). Plaintiff responded on November 20, 2020 (Document No. 15). Defendant replied on December 4, 2020 (Document No. 16). The Motion is thus ripe for decision.

III. LEGAL STANDARD

The question before the Court is whether this case should be transferred to the Southern District of Indiana pursuant to 28 U.S.C. § 1404(a). Section 1404(a) states: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Although § 1406 permits either the dismissal or the transfer of a case where venue is not proper in the original forum, § 1404(a) "provides for the transfer of a case where both the original and the requested venue are proper." Jumara v. State Farm Ins. Co., 55 F.3d 873, 878-79 (3d Cir. 1995).⁴

Once a court determines that venue would be proper in another district, the court considers "all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." Id. at 879. Typically, this analysis involves balancing private and public interests. Id. "The calculus changes, however, when the parties' contract contains a valid forum-selectionclause, which 'represents the parties' agreement as to the most proper forum.'" Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for Western Dist. of Texas, 571 U.S. 49, 63 (2013) (quoting Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988)).

The Supreme Court decision in Atlantic Marine significantly modified the § 1404(a) transfer inquiry for cases involving valid forum selection clauses. In such cases, the analysis is limited to "public-interest factors only"; private interests are not considered. Id. at 64. "Because [public-interest factors] will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual cases." Id.

Accordingly, a district court conducts a two-step analysis when deciding whether to enforce a forum selection clause. See Steinmetz v. McGraw-Hill Global Education Holdings, LLC, 220 F.Supp.3d 596, 601 (E.D. Pa. 2016). First, the court considers whether the forum selection clause is valid and enforceable. Atl. Marine, 571 U.S. at 62. In the Third Circuit, a forum selection clause is treated as presumptively valid unless the party objecting to its enforcement shows: "(1...