United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge United States District Court
V-Soft Consulting and Defendant Logic Corporation entered
into a consulting agreement. (Docket No. 4-1, PageID # 38)
When a dispute arose over the agreement, V-Soft filed suit
against Logic in Jefferson County, Kentucky Circuit Court.
(D.N. 1) After Logic removed the case to this Court, Logic
filed a motion to dismiss, asserting that it is not subject
to personal jurisdiction in Kentucky. (D.N. 4-1, PageID #
38-41) Because the Court finds that Logic's conduct does
not fall under Kentucky's long-arm statute, the Court
will grant the motion to dismiss.
Consulting “provides professional IT consulting
services to third parties by the temporary assignment of its
employees to various client locations all across the United
States.” (D.N. 5-1, PageID # 54) V-Soft is a Texas
corporation that is headquartered in Louisville, Kentucky.
(Id.; D.N. 4-1, PageID # 40) Defendant Logic is a
“global information technology recruiting . . . and
consulting firm.” Logic is a Florida corporation with
its principal place of business in Florida. (D.N. 4-1, PageID
October 13, 2015, V-Soft and Logic entered into a consulting
agreement that called for V-Soft to provide on-site
consulting services to Logic's client, Bloomberg LP, in
New York. (Id., PageID # 38) V-Soft filed suit in
Jefferson County, Kentucky Circuit Court, alleging that Logic
breached the contract by failing to pay V-Soft for these
services, misrepresented its relationship with Bloomberg, was
unjustly enriched from its failure to pay, and committed
theft in violation of Ky. Rev. Stat. § 514.070. (D.N.
1-2, PageID # 9-12; D.N. 5-1, PageID # 54) Logic removed the
case to this Court and filed a motion to dismiss, arguing
that it is not subject to personal jurisdiction in Kentucky.
(D.N. 4-1, PageID # 38-41) Logic claims that it is not
subject to Kentucky's long-arm statute because it does
not transact business in Kentucky. (Id., PageID #
39-40) In support, Logic states that it is not registered
with the Kentucky Secretary of State; it does not have a
physical presence in Kentucky; no Logic representative
traveled to Kentucky to negotiate the agreement; and the
agreement was not performed in Kentucky. (Id.)
According to Logic, its only connection to Kentucky is its
consulting agreement with V-Soft. (Id.)
response, V-Soft argues that because it executed a contract
with a party located in Louisville, Kentucky, Logic
transacted business in the Commonwealth under Kentucky's
long-arm statute. (D.N. 5-1, PageID # 56) V-Soft then asserts
that Logic has sufficient minimum contacts with Kentucky for
the following reasons: (1) the agreement referenced
V-Soft's location in Kentucky; (2) the employee assigned
to Bloomberg was in the United States on a visa and the
employee's immigration issues were handled in Louisville;
(3) Logic had “significant oral and written
communications” with V-Soft employees in Louisville;
and (4) the payments were to go to V-Soft's headquarters
in Louisville. (Id., PageID # 54-55) Alternatively,
V-Soft claims that Logic's alleged failure to pay
constitutes theft, which would be considered a
“criminal act occurring within the Commonwealth of
Kentucky.” (Id., PageID # 58) According to
V-Soft, “[t]hose criminal actions alone should satisfy
the minimal contacts requirement of the 14th
amendment.” (Id., PageID # 58-59)
also asserts that the action should be dismissed because of
the forum-selection clause contained in the parties'
consulting agreement. (D.N. 4-1, PageID # 41-42) The
This Agreement shall be governed by the laws of the state of
Florida without regard to choice of law principals,
regardless of where Contractor's work is performed.
Company and Contractor hereby irrevocably submit to the
jurisdiction of any court (state or federal) located within
the state of Florida in any action, suit, or proceeding
brought against or relating to or in connection with this
Agreement or any transaction contemplated thereby, and to the
extent permitted by applicable law, each party hereby waives
and agrees not to assert by way of motion, as a defense or
otherwise, in any such suit, action or proceeding, any claim
that either he is not personally subject to the jurisdiction
of such courts, that the suit, action, or proceeding is
brought in an inconvenient forum, that the venue of the suit,
action, or proceeding is improper, or that this Agreement or
any instrument, agreement or document referred to herein or
the subject matter hereof may not be litigated in or by such
(Id., PageID # 41; D.N. 1-2, PageID # 23) Logic
claims that this forum-selection clause is valid and should
be enforced. (D.N. 4-1, PageID # 41-42)
responds that the forum-selection clause does not mandate
dismissal of the complaint. (D.N. 5-1, PageID # 59-60)
According to V-Soft, the clause indicates that V-Soft will
submit to personal jurisdiction in Florida but does not
establish Florida as the exclusive jurisdiction for bringing
suit. (Id.) Alternatively, V-Soft argues that the
agreement was terminated when Logic breached it by failing to
pay V-Soft and thus is no longer valid. (Id.)
V-Soft claims that the agreement was procured by fraud and
misrepresentation because Logic misrepresented its
relationship with Bloomberg. (Id.) Finally, V-Soft
asserts that it has claims that are independent of the
agreement and that those claims “may be pursued in any
appropriate forum.” (Id.)
first argues that the clause at issue does not establish
Florida as the exclusive jurisdiction for suits arising from
the parties' agreement. (Id.) The Court agrees.
of a forum-selection clause is governed by federal common
law. See Wong v. PartyGaming Ltd., 589 F.3d 821,
827-28 (6th Cir. 2009). “Under federal common law,
forum selection clauses are to be interpreted by reference to
ordinary contract principles” and “should be
upheld absent a strong showing that [they] should be set
aside.” Crown Labs., Inc. v. Se. Commercial Fin.,
LLC, No. 2:11-CV-185, 2012 WL 2126945, at *2 (E.D. Tenn.
Apr. 30, 2012) (citing Carnival Cruise Lines, Inc. v.
Shute, 499 U.S. 585, 595 (1991); In re Delta Am. Re
Ins. Co., 900 F.2d 890, 892 (6th Cir. 1990)).
forum selection clause may be either ‘mandatory' or
‘permissive' in nature.” Id.
(quoting Cornett v. Carrithers, 465 F. App'x
841, 843 (11th Cir. 2012)). “A mandatory clause
prescribes a specific forum in which litigation regarding the
contracted-to subject matter must be brought; a permissive
clause, by contrast, identifies a forum in which such
litigation permissibly may be brought, but on a non-exclusive
basis.” Cornett, 465 F. App'x at 843;
see also Gen. Elec. Co. v. G. Siempelkamp GmbH &
Co., 29 F.3d 1095, 1099 (6th Cir. 1994).
Tenth Circuit has explained that
[g]enerally speaking, the circuits that have addressed the
issue are in agreement that “where venue is specified
in a forum selection clause with mandatory or obligatory
language, the clause will be enforced; where only
jurisdiction is specified in a forum selection clause, the
clause will generally not be enforced unless there is some
further language indicating the parties' intent to make
K & V Sci. Co. v. Bayerische Motoren Werke
Aktiengesellschaft, 314 F.3d 494, 499 (10th Cir. 2002)
(alterations omitted) (quoting Paper Express, Ltd. v.
Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir.
1992)); see also Travelers Prop. Cas. Co. of Am. v.
Centimark, Corp., No. 2:04-CV-0916, 2005 WL 1038842, at
*3 (S.D. Ohio May 3, 2005). “An agreement conferring
jurisdiction in one forum will not be interpreted as
excluding jurisdiction elsewhere unless it contains specific
language of exclusion . . . or it leaves it in the control of
one party with power to force on its own terms the
appropriate forum.” GMAC Commercial Mortg. Corp. v.
LaSalle Bank Nat'l Ass'n, 242 F.Supp.2d 279, 282
(S.D.N.Y. 2002) (quoting City of New York v.
Pullman, 477 F.Supp. 438, 442 n.11 (S.D.N.Y. 1979));
see also IntraComm, Inc. v. Bajaj, 492 F.3d 285, 290
(4th Cir. 2007). “The normal construction of the
jurisdiction rules includes a presumption that, where
jurisdiction exists, it cannot be ousted or waived absent a
clear indication of such a purpose.” Id.
(quoting Pullman, 477 F.Supp. at 443).
example, in Blanco v. Banco Industrial de Venezuela,
the forum-selection clause read:
[The parties agree] that any legal action or proceedings
arising out of or in connection with this Agreement may be
brought in the High Court of Justice in England, the Courts
of the State of New York, the Courts of the United States of
America in New York or the Courts of the City of Caracas,