PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1217

PAMELA D. WHITAKER,

Plaintiff - Appellee,

v.

MONROE STAFFING SERVICES, LLC; STAFFING 360 SOLUTIONS, INC.,

Defendants - Appellants.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:20−cv−00012−NCT−JLW)

Argued: March 9, 2022 Decided: July 22, 2022

Before RICHARDSON and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Vacated and remanded with instructions by published opinion. Senior Judge Keenan wrote the majority opinion, in which Judge Heytens joined. Judge Richardson wrote an opinion concurring in part and concurring in the judgment.

ARGUED: Jonathan D. Pressment, HAYNES & BOONE, LLP, New York, New York, for Appellants. Grover Gray Wilson, NELSON MULLINS RILEY & SCARBOROUGH LLP, Winston-Salem, North Carolina, for Appellee. ON BRIEF: Craig D. Schauer, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina; Abbey Gauger, HAYNES & BOONE, LLP, New York, New York, for Appellants. Stuart H. Russell, NELSON MULLINS RILEY & SCARBOROUGH LLP, USCA4 Appeal: 21-1217 Doc: 39 Filed: 07/22/2022 Pg: 2 of 24

Winston-Salem, North Carolina, for Appellee.

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BARBARA MILANO KEENAN, Senior Circuit Judge:

This appeal raises issues concerning ripeness and the application of a contract’s

forum selection clause. In August 2018, plaintiff Pamela Whitaker entered into a share

purchase agreement with the defendants for the sale of her business, which agreement the

parties later amended (the contract, or the amended agreement). Whitaker filed suit in

December 2019 in North Carolina state court, alleging that the defendants had not made

interest and earnout payments as required under the amended agreement. The defendants

removed the case to federal district court in the Middle District of North Carolina, where

they argued that the state or federal courts in New York were the exclusive forums for

Whitaker’s complaint under the contract’s forum selection clause. The defendants also

argued that Whitaker’s claims were not yet ripe because, at the time the complaint was

filed, all payments that were due under the contract had been made.

The magistrate judge recommended transferring the case to the Southern District of

New York in accordance with the contract’s forum selection clause. The district court

disagreed. The district court concluded that Whitaker’s claims were “relating to” a setoff,

enabling Whitaker to invoke an exception in the forum selection clause and maintain her

suit in North Carolina state court. The district court remanded the case to the North Carolina

state court, and the defendants now appeal.

Upon our review, we initially conclude that Whitaker’s claims are ripe, both as

originally pleaded and under the facts developed prior to the district court’s judgment. We

also agree with the magistrate judge that Whitaker’s claims do not relate to a setoff and

that under the contract’s forum selection clause, the state or federal courts in New York are

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