United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. Stivers, United States District Court, Judge
matter is before the Court upon Defendant's Motion to
Dismiss (DN 3). For the reasons stated below, the motion is
Capital Holdings 234, LLC (“Capital Holdings”)
and Defendant Advocate Consulting Legal Group, PLLC
(“Advocate Consulting”) entered into an agreement
for legal services. (Compl. ¶ 7, DN 1-2; Def.'s Mot.
Dismiss Ex. C, at 1, DN 3-3 [hereinafter Agreement]). Under
the terms of the Agreement, Advocate Consulting was to
provide legal services to Capital Holdings “related to
the structuring of the acquisition and operation of an
aircraft in a tax efficient manner” for an annual fee
of $7, 500. (Compl. ¶¶ 7-9; Agreement 1-2).
Pursuant to their contract, Capital Holdings sought tax
advice from Advocate Consulting regarding the sale of fifty
percent of an aircraft, and Advocate Consulting advised that
the sale would have “a tax gain to report of
approximately $150, 000.” (Compl. ¶ 12). Capital
Holdings alleges that after the sale, “it became
apparent that [Defendant] omitted a Section 179 tax deduction
recapture in the analysis it provided to Capital Holdings and
the resulting sale, which will result in a total tax gain of
$438, 402.” (Compl. ¶¶ 13-14).
Holdings filed this lawsuit in Warren Circuit Court asserting
claims of negligence, professional negligence, breach of
fiduciary duty, misrepresentation, and breach of contract
against Advocate Consulting. After being served, Advocate
Consulting removed the lawsuit to this Court and has moved to
dismiss the action based on forum non conveniens due
to the forum selection clause in the Agreement and the lack
of personal jurisdiction over it in this forum. (Notice
Removal, DN 1; Def.'s Mem. Supp. Mot. Dismiss 2-8)/
Forum Selection Clause
forum selection clause should be upheld absent a strong
showing that it should be set aside.” Wong v.
PartyGaming Ltd., 589 F.3d 821, 828 (6th Cir. 2009)
(citation omitted). “[T]he appropriate way to enforce a
forum-selection clause pointing to a state forum is through
the doctrine of forum non conveniens.”
Chinook USA, LLC v. Duck Commander, Inc., No.
3:14-CV-01015-CRS, 2016 U.S. Dist. LEXIS 2211, at *10 (W.D.
Ky. Jan. 7, 2016) (alteration in original) (internal
quotation marks omitted) (quoting Atl. Marine Const. Co.
v. U.S. Dist. Court for W. Dist. of Tex., 134 S.Ct. 568,
enforcing a forum selection clause, the Court must first
determine whether the forum selection clause is valid. In
doing so, the Court considers the following factors:
“(1) whether the clause was obtained by fraud, duress,
or other unconscionable means; (2) whether the designated
forum would ineffectively or unfairly handle the suit; and
(3) whether the designated forum would be so seriously
inconvenient such that requiring the plaintiff to bring suit
there would be unjust.” Id. (internal
quotation marks omitted) (citation omitted).
case at bar, the parties agreed upon a valid and enforceable
forum selection clause.First, Plaintiff has not asserted that
the forum selection clause was obtained by fraud, duress or
other unconscionable means. Instead of arguing that the
agreed upon forum would be ineffective or unfairly handle the
suit, Plaintiff contends that “Kentucky courts would be
much more effective at handling the suit than
Florida courts.” (Pl.'s Resp. Def.'s Mot.
Dismiss 3, DN 5 (emphasis added)). As the Sixth Circuit has
noted, however, “[d]ifferent or less favorable foreign
law or procedure alone does not satisfy this prong. Rather,
the foreign law must be such that a risk exists that the
litigants will be denied any remedy or will be treated
unfairly.” PartyGaming, 589 F.3d at 829
(citation omitted). Third, Plaintiff asserts that
“Plaintiff is much more inconvenienced
bringing this action in Florida than Defendant is
inconvenienced defending this action in Kentucky.”
(Pl.'s Resp. Def.'s Mot. Dismiss 4 (emphasis added)).
Not only is mere inconvenience not the standard, but
Plaintiff offers minimum evidence to support this
conclusion. See PartyGaming, 589 F.3d at 829
(“To meet the third prong of our test, the plaintiff
must show that enforcement of the clause would be so
inconvenient such that its enforcement would be unjust or
unreasonable.” (citing Preferred Capital v. Assocs.
in Urology, 453 F.3d 718, 722-23 (6th Cir. 2006))).
See also Lorenzana v. 2nd Story Software, Inc., No.
4:12CV-00021-JHM, 2012 U.S. Dist. LEXIS 95119, at *19 (W.D.
Ky. July 10, 2012) (quoting Wayne Cty. Emps. Ret. Sys. v.
MGIC Inv. Corp., 604 F.Supp.2d 969, 975 (E.D. Mich.
2009)) (“Generally, ‘[a] transfer is not
appropriate if the result is simply to shift the
inconvenience from one party to another.'”). In the
absence of any indication that the forum selection clause was
tainted by misconduct, that Florida courts could not handle
this type of dispute, or any unjust inconvenience, it appears
that the forum selection clause is valid.
the Court must determine whether to dismiss the case based on
forum non conveniens. “In assessing whether to
dismiss a case based on forum non conveniens, the
Court must first identify an adequate alternative forum.
“This requirement will be satisfied if the defendant is
amenable to process in the foreign jurisdiction. An
alternative forum is inadequate if the remedy provided by it
is so clearly inadequate or unsatisfactory that it is no
remedy at all.” PartyGaming, 589 F.3d at
830-31 (citing Piper Aircraft Co. v. Reyno, 454 U.S.
235, 255 n.22, (1981)).
Defendant is amendable to process in Florida state court
because Florida is its principle place of business.
Furthermore, this is an adequate and satisfactory forum
capable of providing remedy to Plaintiff's claims.
See Chinook USA, 2016 U.S. Dist. LEXIS 2211, at *12
(finding that a Louisiana state court was an adequate
alternative forum because Defendant was amendable to process
there, the forum was capable of providing remedy to
Plaintiffs, and Plaintiff agreed to resolve disputes arising
from the Agreement in Louisiana when signing the contract).
identifying Florida state court as an adequate alternative,
the Court must weigh relevant public and private factors in
favor of the Florida forum. PartyGaming, 589 F.3d at
831-32 (citing Estate of Thomson v. Toyota Motor Corp.
Worldwide, 545 F.3d 357, 364 (6th Cir. 2008)). When
there is a valid forum selection clause, however, the
(1) [P]laintiff's forum selection merits no weight, and,
instead, the plaintiff bears the burden of establishing that
transfer to the forum for which the parties bargained is
unwarranted. Also, (2) the Court conclusively presumes the
private interest factors favor the ...