Viron Intern. Corp. v. David Boland, Inc., 91-CV-42.
| Decision Date | 08 July 2002 |
| Docket Number | No. 91-CV-42.,91-CV-42. |
| Citation | 237 F.Supp.2d 812 |
| Parties | VIRON INTERNATIONAL CORPORATION, a Michigan corporation, Plaintiff, v. DAVID BOLAND, INCORPORATED, a foreign corporation, and Harden Enterprises, Inc., a foreign corporation, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Jeffrey W. Bracken, Loomis, Ewert, Parsley, Davis, et al., Lansing, MI, for Plaintiff.
Lori M. Silsbury, Dykema Gossett, Lansing, MI, for Defendants.
On March 4, 2002, this Court issued an opinion and order denying defendants' motion to dismiss, or in the alternative, to transfer venue. See dkt. ## 3, 26, 27. As noted in the Court's earlier opinion, defendants brought their original motion to transfer venue under 28 U.S.C. § 1406(a), not § 1404(a). Viron Int'l Corp. v. Boland, Inc., No. 5:01-cv-42, 2002 U.S. Dist. LEXIS 4917, at *27 (W.D.Mich. March 4, 2002). On March 18, 2002, defendants filed the instant motion to transfer venue, this time seeking transfer pursuant to 28 U.S.C. § 1404(a). See dkt. # 30. The Court heard oral argument from the parties on May 20, 2002. Neither plaintiff nor defendants had adequately briefed the issue of which party bears the burden of proof on a motion to transfer venue, pursuant to § 1404(a), when the parties' agreement contains a mandatory forum selection clause. Thus, the Court gave the parties an additional 10 days to file five-page supplemental briefs on the burden of proof issue.1 The parties have filed their supplemental briefs. See dkt. ## 41, 42. For the reasons set forth below, the Court now grants defendants' motion to transfer venue pursuant to 28 U.S.C. § 1404(a).
This case involves an alleged breach of contract by defendants. The parties' agreements contain a mandatory forum selection clause, which provides, as follows:
Applicable Laws. The Contract shall be governed by, subject to, and construed according to the laws of the State of Florida. Seller shall comply with all applicable federal, state and local laws. Sole venue for any litigation arising hereunder shall be in a court in Orange or Brevard County, Florida. The prevailing party shall be entitled to its costs, legally taxable or otherwise and its reasonable attorneys' fees in any litigation arising hereunder.
Viron, 2002 U.S. Dist. LEXIS 4917, at *3 ().2 Defendants contend that the forum selection clause, the location of most witnesses and documents, and the contractual choice of law provision weigh in favor of transfer of venue to the Middle District of Florida,3 pursuant to 28 U.S.C. § 1404(a). Plaintiff, on the other hand, argues that the forum selection clause does not control the transfer decision and that defendants have failed to show that a transfer of venue under § 1404(a) is warranted. The resolution of this motion turns on the burden of proof, to which the Court now turns.4
Typically, the party bringing the motion to transfer venue bears the burden of proving that the transferee district, in this case the Middle District of Florida, is a more convenient forum for litigation of the action. See Terra Int'l, Inc. v. Mississippi Chemical Corp., 119 F.3d 688, 695 (8th Cir.), cert. denied, 522 U.S. 1029, 118 S.Ct. 629, 139 L.Ed.2d 609 (1997); In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989)(on remand of Stewart v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)). When the parties have contractually agreed to litigate in a particular forum, however, some courts have held that the burden of proof shifts to the party opposing transfer to demonstrate why it should not be bound by the forum selection clause. See Jumara v. State Farm Ins. Co., 55 F.3d 873, 880 (3d Cir.1995); In re Ricoh Corp., 870 F.2d at 573. While there is no Sixth Circuit authority on point, the Court agrees with those courts that shift the burden of proof to the party opposing transfer based on a valid forum selection clause.
Plaintiff agreed to litigate in Florida, by entering into agreements containing forum selection clauses. A forum selection clause "represents the parties' agreement as to the most proper forum." Stewart, 487 U.S. 22, 31, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). Requiring defendants to prove that federal district court in Florida is a more convenient forum is not appropriate when plaintiff has already contractually agreed that Florida is the most proper forum for handling disputes arising out of the parties' agreements. Therefore, the Court concludes that plaintiff bears the burden of proof in this case and must demonstrate that the Western District of Michigan is a more proper forum for litigating this dispute than is the Middle District of Florida.
Before examining the various § 1404(a) factors, however, the Court briefly digresses to address an argument raised by plaintiff at oral argument and in the briefs it filed with this Court in response to defendants' earlier motion to transfer venue under 28 U.S.C. § 1406(a). Plaintiff contends that "there were no substantive negotiations regarding the minuscule, pre-printed `Conditions' located on the reverse side of the Purchase Orders, including the forum selection clause." Plaintiff's Supplemental Brief in Opposition to Defendants' Motion to Dismiss, or in the Alternative, Transfer Venue ("Plaintiff's Supplemental § 1406 Brief") 8. Plaintiff does not contend that it has no contract with defendants. Instead, plaintiff apparently wants the Court to find that some terms of the purchase orders are binding on the parties, while others, like the forum selection clause, are somehow "less" binding. Plaintiff's argument is premised on the fact that the forum selection clause is contained in boilerplate language on the reverse side of defendants' purchase orders.
The Court finds plaintiff's argument to be totally without merit. Plaintiff discussed with defendants two of the boilerplate conditions on the back of the purchase orders. Plaintiff acknowledges that its national sales manager asked defendants to change language in paragraph 1 of the preprinted conditions on the reverse of the purchase orders. See Plaintiff's Supplemental § 1406 Brief at 7-8. As a result, the last two sentences of paragraph 1 on the back of the purchase orders were struck through. See id. at 7; Defendants' Reply Brief in Support of Motion to Dismiss, or in the Alternative, to Transfer Venue, Exhibit 1 (Exhibit C attached to affidavit of David Boland). The same national sales manager also raised concerns about the preprinted warranty contained at paragraph 5 on the back of the purchase orders. See Plaintiff's Supplemental § 1406 Brief at 7 n. 7. Thus, plaintiff obviously read and negotiated over the terms of some of the boilerplate on the back of the purchase orders. Simply because plaintiff either chose not to negotiate over other provisions in the boilerplate or failed to read all of the terms contained in the boilerplate does not mean that the forum selection clause is not binding on the plaintiff.
Section 1404(a) provides that "[f]or 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) (1993). In ruling on a motion to transfer venue pursuant to 28 U.S.C. § 1404(a), the Court must examine a number of factors, including (1) convenience of the parties and the witnesses, (2) accessibility of sources of proof, (3) the costs of securing testimony from witnesses, (4) practical problems associated with trying the case in the least expensive and most expeditious fashion, and (5) the interests of justice. See Keweenaw Konvenience, Inc. v. Commerce & Indus. Ins. Co., No. 5:00-CV-111, 2001 U.S. Dist. LEXIS 247, at *5 (W.D.Mich. Jan. 11, 2001); see also Moses v. Business Card Express, Inc., 929 F.2d 1131, 1136-37 (6th Cir.), cert. denied, 502 U.S. 821, 112 S.Ct. 81, 116 L.Ed.2d 54 (1991). Other factors include (1) the relative congestion in the courts of the two forums, (2) the public's interest in having local controversies adjudicated locally, (3) the relative familiarity of the two courts with the applicable law, (4) the plaintiff's original choice of forum, and (5) whether the parties have agreed to a forum selection clause. See MOORE'S FEDERAL PRACTICE § 111.13[1][b] at 111-66-67 (3d ed.). With the exception of the forum selection clause, the remaining § 1404(a) factors either do not apply or are a "wash" in this case.
The parties' convenience is already reflected in the mandatory forum selection clause. See Stewart, 487 U.S. at 31, 108 S.Ct. 2239 ().
The location of witnesses weighs neither in favor of transfer nor in favor of keeping the litigation in this Court. The witnesses are located in a number of states, including Florida, Michigan, North Carolina, South Carolina, and Texas. Moreover, the "materiality of the prospective witnesses' testimony, and not merely the number of prospective witnesses, will determine the extent to which their convenience will be weighed." MOORE'S FEDERAL PRACTICE § 111.13[1][f][v] at 111-83 (3d ed.) (footnote omitted). Neither party, however, has made clear to the Court which witnesses are most material to this litigation.
Therefore, the Court concludes that the location of witnesses is a "wash." Michigan is more convenient for plaintiff's employees and other party witnesses, while Florida is more convenient for defendants' employees and other party witnesses. There is no evidence that Michigan is a more convenient forum for the remaining non-party witnesses.
The sources of proof in this case are in various locations, including Michigan, Florida, and South Carolina. In addition,...
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