DJ's Tree Serv. & Logging, Inc. v. Bandit Indus., Inc.

Decision Date31 August 2021
Docket NumberCase No. 2:20-cv-00217
Citation557 F.Supp.3d 511
Parties DJ'S TREE SERVICE & LOGGING, INC., Plaintiff, v. BANDIT INDUSTRIES, INC. and Anderson Equiptment Company (NY), Inc., Defendants.
CourtU.S. District Court — District of Vermont

Paul R. Morwood, Esq., Morwood & Morwood, Norman R. Blais, Esq., South Burlington, VT, for Plaintiff.

Francesca Bove, Esq., Mark F. Werle, Esq., Ryan Smith & Carbine, Ltd., Rutland, VT, for Defendant Bandit Industries, Inc.

Mary Ann DiIanni, Esq., Pro Hac Vice, Cohen & Grace, LLC, Pittsburgh, PA, Matthew S. Borick, Esq., Downs Rachlin Martin PLLC, Burlington, VT, for Defendant Anderson Equipment Company (NY), Inc.


Christina Reiss, District Judge

Plaintiff DJ's Tree Service & Logging, Inc. brings this suit against Defendants Bandit Industries, Inc. ("Bandit") and Anderson Equipment Company (NY), Inc. ("Anderson") for breach of express warranties, violation of the Vermont Consumer Protection Act (the "VCPA"), and common law fraud arising out of the sale of equipment for use by Plaintiff in its business. Pending before the court is Defendant Anderson's motion to dismiss or, in the alternative, to transfer venue (Doc. 5), Defendant Bandit's motion to dismiss (Doc. 20),1 and Plaintiff's motion for leave to amend. (Doc. 21.)

I. Procedural Background.

On December 29, 2020, Defendant Anderson filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in the alternative, to transfer venue under 28 U.S.C. § 1404(a) based on a forum selection clause contained in the "Equipment Sales Agreement" (the "Agreement") between Defendant Anderson and Plaintiff. On January 26, 2021, Defendant Bandit filed a motion to dismiss for lack of personal jurisdiction, or in the alternative, for failure to state a claim. On February 4, 2021, Plaintiff filed a motion for leave to amend the Complaint.

On June 29, 2021, the court ordered the parties to provide supplemental briefing regarding whether Defendant Bandit was subject to a forum selection clause contained in the Agreement on the ground that it was part of a larger contractual relationship between Plaintiff and Defendant Anderson. The parties completed supplemental briefing on July 27, 2021, at which time the court took the pending motions under advisement.

Plaintiff is represented by Norman R. Blais, Esq., and Paul R. Morwood, Esq. Defendant Bandit is represented by Mark F. Werle, Esq. and Francesca Bove, Esq. Defendant Anderson is represented by Mary Ann DiIanni, Esq., and Matthew S. Borick, Esq.

II. Whether to Grant Leave to Amend.

After both Defendants filed their respective motions to dismiss, Plaintiff cross moved for leave to amend. Defendant Anderson opposes Plaintiff's motion on the ground that amendment would be futile, while Defendant Bandit "takes no position on the merits of [P]laintiff's motion[.]" (Doc. 26 at 1.)

Under Federal Rule of Civil Procedure 15, "[t]he court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). The Second Circuit has held a "district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 200 (2d Cir. 2007).

Plaintiff's Proposed Amended Complaint removes facts regarding venue, adds approximate dates for alleged facts, and supplies limited additional factual allegations. The court declines to rule on the futility of Plaintiff's claims against Defendant Anderson because those claims must be dismissed pursuant to the forum selection clause. With regard to Plaintiff's remaining claims against Defendant Bandit, because leave to amend should be freely given and because Defendant Bandit does not oppose the motion, Plaintiff's motion for leave to amend is GRANTED. Defendant Bandit's motion dismiss will therefore be decided in the context of Plaintiff's Amended Complaint. See Hamzik v. Off. for People with Developmental Disabilities , 859 F. Supp. 2d 265, 273-74 (N.D.N.Y. 2012) ("Where a plaintiff seeks to amend his complaint while a motion to dismiss is pending, a court has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion as moot to considering the merits of the motion in light of the amended complaint.") (internal quotation marks omitted).

III. The Amended Complaint's Factual Allegations.

Plaintiff is a corporation organized and existing in the State of Vermont with its principal place of business in Colchester, Vermont. Defendant Anderson is a corporation organized and existing in the State of Pennsylvania and is a retail seller of industrial equipment. Defendant Anderson owns, operates, and maintains a retail store in East Montpelier, Vermont and, at all relevant times, was an authorized dealer for and "was acting as an agent of" Defendant Bandit. (Doc. 21-2 at 2, ¶ 2.) Defendant Bandit is a corporation organized and existing in the State of Michigan. It is a manufacturer of equipment known in the trade as a "horizontal grinder" which it sells to the public through agents such as Defendant Anderson.

Plaintiff asserts that Defendant Anderson was a "seller" of the 2017 Model 2680XP "Track Beast Recycler" (the "Recycler"), id. at 3, ¶ 12, and that Defendant Bandit, by virtue of its agency relationship with Defendant Anderson, was also a "seller" of the Recycler pursuant to 9 V.S.A. § 2451a. At all relevant times, Plaintiff alleges that Defendants’ representatives were acting as agents for their respective employers, were acting with authority from their employers, and were acting within the scope of their respective employment.

Plaintiff contends that during the latter part of 2018 it sought to purchase a horizontal grinder for use in its business operations and, in furtherance of that objective, it used the internet to determine that Defendant Anderson was an authorized dealer of horizontal grinders manufactured by Defendant Bandit. Plaintiff allegedly used various equipment manufactured by Defendant Bandit in the past and was satisfied with its quality and performance.

In or about December 2018, Plaintiff's representatives met with Defendants’ representatives at Plaintiff's place of business in Colchester for a demonstration of a horizontal grinder. Plaintiff's representatives advised Defendants’ representatives that Plaintiff needed a horizontal grinder of "high quality and reliability, [and] fit for heavy-duty commercial use." (Doc. 21-2 at 3, ¶ 12.) Plaintiff contends Defendants’ representatives sought to convince Plaintiff to purchase the Recycler. During a demonstration of the Recycler, Defendants’ representatives revealed that the Recycler was used equipment, but "stressed that it had very low hours of operation." Id. at 3, ¶ 13. Upon inquiry by Plaintiff's representatives, Defendants’ representatives indicated that the only reason the previous owner of the Recycler had elected to trade it in was because it wanted to purchase a "larger model more suitable to meet the previous owner's business needs." Id. at 3, ¶ 14. Plaintiff asserts that this representation was false and that the previous owner had actually purchased replacement equipment because of the failure of the Recycler to adequately and satisfactorily perform its required operations. Plaintiff further alleges that it was unaware of the "true nature of the problems experience[d] by the previous owner" who traded in the Recycler and that if informed of those difficulties, it would not have purchased the Recycler. Id. at 8, ¶ 47.

"[T]o assuage any concerns of [Plaintiff] regarding suitability of the Recycler to meet [its] commercial needs," id. at 4, ¶ 16, Defendants’ representatives allegedly orally informed Plaintiff's representatives that if Plaintiff purchased the Recycler, the purchase would be accompanied by the same warranty that accompanied a new horizontal grinder manufactured by Defendant Bandit and sold by Defendant Anderson. Plaintiff relied on that representation in purchasing the Recycler for $530,000.00.

On December 27, 2018, the purchase of the Recycler was reflected in the Agreement which states in relevant part:


(Doc. 5-2 at 2, 4, 5.)

The Agreement contains a forum selection clause that states:

CLAIMS: In order to [e]nsure prompt inspection by Buyer and to eliminate abuse of Equipment sold, Seller must be notified in writing stating with particularity the nonconformity of the Equipment to the express warranty, if any, given above by Seller, immediately after Buyer should have discovered such nonconformity. All claims for shortages must be made in writing within one (1) day after receipt of the Equipment by Buyer and specify with particularity the exact shortage complained of.
In no event shall Seller be responsible for claims resulting in whole or in part, directly or indirectly, from the use or abuse of nonconforming Equipment or to Equipment which has suffered abuse, misuse, neglect or accident or to any Equipment which has been repaired or altered so as to effect its performance, stability or reliability.
Failure to furnish such written claim within such prescribed period of time shall terminate all liability of Seller. Seller must be given the opportunities upon written demand to inspect the Equipment claimed to be nonconforming.
Nonconforming Equipment, except for samples, may only be returned to Seller upon receipt of Seller's written authorization to do so. All transportation costs with respect to such returns shall be paid by Buyer prior to shipment.
Buyer must demonstrate that any nonconformity

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