Microsoft Can’t Yet Boot Ex-Staffer’s Case to Libya

     SAN FRANCISCO (CN) – A man whom Microsoft fired some months after the Libyan revolution led to the evacuation of the branch there may get to sue in California, a federal judge ruled.
     Mahmoud Kedkad, a Libyan national and naturalized U.S. citizen, had spent over a year working as a marketing lead for Microsoft in Libya before a revolution erupted there in February 2011. Government troops allegedly killed members of Kedkad’s family, and Kedkad said he was put on a hit list because of his employment by an American company.
     Kedkad returned to the United States, and Microsoft assigned him to Dubai, but he did not go. He sought to have his work duties modified, but Microsoft did not transfer him into a new job in the United States or abroad.
     Microsoft fired Kedkad on Dec. 1, 2011, two months before his employment contract was set to expire. It attributed the termination to Kedkad’s failure to find a new job within the corporation that would hire him.
     In a complaint earlier this year, Kedkad claimed that Microsoft fired him from his $192,000-a-year marketing job in retaliation for speaking to reporters about the revolution. He also claimed that the company discriminated against him because the violence he witnessed left him with post-traumatic stress disorder.
     A Tuesday ruling makes no mention of the retaliation claims, instead describing the suit as one over unpaid benefits and failure to accommodate disability.
     Microsoft had moved to dismiss for improper forum, arguing that Kedkad was employed in Libya and the contract calls for the dispute to be litigated through Libyan labor law.
     U.S. District Judge Thelton Henderson concluded, however, that the parties’ contract did not contain a forum selection clause.
     The contract “does not explicitly state a choice of venue or forum selection provision. Nor does its language indicate that it requires plaintiff to submit to the ‘mandatory’ or ‘exclusive’ jurisdiction of the Libyan adjudicative process,” Henderson wrote.
     In moving to dismiss based on forum non conveniens, Microsoft had to show that Libya is an adequate alternative forum and that private and public interest factors favor dismissal.
     Kedkad argued that Libya is not an adequate forum because the continued civil unrest would be a danger to American citizens. He also said the Libyan courts are not functioning well based on the Libyan government’s failure to establish a new national constitution.
     Judge Henderson deferred resolution of this issue, noting that Kedkad failed “to provide any non-conclusory factual support for his position.”
     “Nor does plaintiff’s counsel, in is eight-page opposition brief, address whether any statutes of limitation under applicable Libyan law might impact the adequacy of Libya as an alternative forum,” Henderson added.
     In contrast, Microsoft submitted evidence that the Libyan judicial system is functional and efficient.
     Because Kedkad failed to meaningfully oppose Microsoft’s argument, Henderson gave him an additional opportunity to submit supplemental briefing and evidence on the matter.
     If Kedkad does not submit a brief addressing the adequacy of Libya as an alternative forum, “the court may dismiss the Complaint under the doctrine of forum non conveniens on the basis that defendant has satisfied its burden of showing Libya is an adequate alternative forum and that the balance of the private and public interests factors favors dismissal,” Henderson wrote.

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