Midwest Mech. Contr. v. Tampa Constructors, Inc.

• Decision Date: 09 April 1987
• Docket Number: No. 86-0534-CV-W-9.,86-0534-CV-W-9.
• Citation: 659 F. Supp. 526
• Parties: MIDWEST MECHANICAL CONTRACTORS, INC., Plaintiff, v. TAMPA CONSTRUCTORS, INC., Defendant.
• Court: U.S. District Court — Western District of Missouri

659 F. Supp. 526

MIDWEST MECHANICAL CONTRACTORS, INC., Plaintiff, v. TAMPA CONSTRUCTORS, INC., Defendant.

No. 86-0534-CV-W-9.

United States District Court, W.D. Missouri, W.D.

April 9, 1987.

COPYRIGHT MATERIAL OMITTED

Thomas M. Moore, P.C., Kansas City, Mo., for plaintiff.

Donald W. Giffin, St. Petersburg, Fla., and Howard Lotven, Kansas City, Mo., for defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR TRANSFER TO THE MIDDLE DISTRICT OF FLORIDA

BARTLETT, District Judge.

On April 25, 1986, plaintiff Midwest Mechanical Contractors, Inc. filed its complaint against defendant Tampa Constructors, Inc. alleging breach of two construction subcontracts entered into by the parties in 1983. On June 23, 1986, defendant moved to dismiss the complaint or, in the alternative, for a change in venue. Because defendant presented by affidavit facts outside the complaint in opposition to the allegations in the complaint, the Court ordered defendant's motion to be treated as a motion for summary judgment and directed the parties to submit any further materials. See Rule 12(c), Federal Rules of Civil Procedure. The parties have filed supplemental memoranda treating the motion to dismiss as a motion for summary judgment.

Standard for Summary Judgment

Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment shall be rendered if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, it is the Court's obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Inland Oil and Transport Co. v. United States, 600 F.2d 725, 727-28 (8th Cir.), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979).

If there is no genuine issue about any material fact, summary judgment is proper because it avoids needless and costly litigation and promotes judicial efficiency. Roberts v. Browning, 610 F.2d 528, 531 (8th Cir.1979); United States v. Porter, 581 F.2d 698, 703 (8th Cir.1978). The summary judgment procedure is not a "disfavored procedural shortcut." Rather, it is "an integral part of the Federal Rules as a whole." Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 2553.

The moving party bears the initial burden of demonstrating by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, the absence of genuine issues of material fact. However, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id. (emphasis added).

The nonmoving party is then required to go beyond the pleadings and by affidavits, depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue for trial. Id. A party opposing a properly supported motion for summary judgment cannot simply rest on allegations and denials in his pleading to get to a jury without any significant probative evidence tending to support the complaint. Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The evidence favoring the nonmoving party must be more than "merely colorable." Id. at 2511. The inquiry to be made mirrors the standard for a directed verdict: whether the evidence presented by the party with the onus of proof is sufficient that a jury could properly proceed to return a verdict for that party. Id. Essentially, the question in ruling on a motion for summary judgment and on a motion for directed verdict is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 2512.

Subject Matter Jurisdiction

Defendant contends that the Court lacks subject matter jurisdiction over this action but does not explain why.

Title 28 U.S.C. § 1332(a)(1) states that the "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between ... citizens of different States."

Plaintiff states in its complaint that plaintiff is a citizen of Missouri because its principal place of business is Jackson County, Missouri; that defendant is a citizen of Florida because its principal place of business is Tampa, Florida; and that the amount in controversy exceeds $10,000 exclusive of interest and costs. Defendant does not challenge either the citizenship of the parties or the amount in controversy as stated in plaintiff's complaint. Therefore, defendant's motion for summary judgment for lack of subject matter jurisdiction will be denied.

Venue

Defendant argues that venue in this Court is improper because, pursuant to 28 U.S.C. § 1391(c), defendant is a resident of Florida.

Title 28 U.S.C. § 1391(a) states that "a civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose." Because defendant does not dispute that plaintiff's residency for the purposes of venue is Jackson County, Missouri, venue in this Court is proper under § 1391(a).

Title 28 U.S.C. § 1391(c) states that "a corporation may be sued in any judicial district where it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes." Nothing in § 1391(c) prohibits bringing a suit where all plaintiffs reside when jurisdiction is based on diversity of citizenship. Therefore, defendant's motion for summary judgment on the ground of improper venue will be denied.

Personal Jurisdiction

Defendant argues that because plaintiff's allegations of breaches of the subcontracts are based on acts or omissions occurring in Florida, and not in Missouri, the Court lacks in personam jurisdiction over defendant.

Relying on paragraph 17 of the subcontracts, plaintiff contends that defendant consented to the personal jurisdiction of this Court. Paragraph 17 states: "This Subcontract and all disputes between the parties shall be governed by the laws of the State of Missouri and the jurisdiction and venue for any action between the parties shall be solely and exclusively in Jackson County, Missouri."

In a suit based on diversity of citizenship, federal law determines the validity of a forum selection clause. Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068-69 (8th Cir.1986); Benge v. Software Galeria, Inc., 608 F.Supp. 601, 606-07 (E.D.Mo.1985). Although the discussion in Sun World Lines, Ltd. on the law applicable to the validity of forum selection clauses in diversity cases may not have been essential to the outcome, the reasons stated by the Court for relying on federal law to interpret the validity of forum selection clauses are persuasive. Cf. Farmland Industries v. Frazier-Parrott Commodities, Inc., 806 F.2d 848, 852 (8th Cir.1986).

"It is settled ... that parties to a contract may agree in advance to submit to the jurisdiction of a given court...." National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16, 84 S.Ct. 411, 414, 11 L.Ed.2d 354 (1964). A party can freely consent to the personal jurisdiction of a court because personal jurisdiction is an individual right capable of being waived. Insurance Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 703, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492 (1982). However, the forum selection clause containing the defendant's consent must comply with applicable due process standards. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 2182 n. 14, 85 L.Ed.2d 528 (1985). Thus, the clause must have been obtained through freely negotiated agreements absent fraud and overreaching and its enforcement must not be unreasonable and unjust. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972). The party resisting enforcement of the clause bears a heavy burden in convincing the Court that it should not be held to its bargain. Id., 407 U.S. at 18, 92 S.Ct. at 1917.

Defendant argues that the forum selection clause (paragraph 17) should not be enforced because 1) the parties are of unequal bargaining power due to size; 2) the clause was contained in a pre-printed form; 3) it would be unreasonable to require defendant, a local Tampa, Florida company, "to defend itself half way across the United States in Kansas City, Missouri;" and 4) enforcement of the forum selection clause would violate Missouri public policy. Defendant relies on the affidavit of James Jackson, an estimator for defendant who states that he has personal knowledge about the negotiations leading to the signing of the subcontracts. Jackson states that defendant "did not bargain for or otherwise take notice of paragraph 17 of the subcontracts."

Absent specific evidence that plaintiff used its size to the disadvantage of defendant, disparity in size between the parties does...