United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. STIVERS, UNITED STATES DISTRICT COURT JUDGE
matter comes before the Court on Defendant's Motion to
Transfer pursuant to 28 U.S.C. § 1404(a) (DN 9). For the
following reasons, the motion is GRANTED.
action involves a dispute concerning various purchase order
agreements between Com-Serv, LLC, (“Plaintiff”)
and ICE Industries, Inc. (“ICE Industries”),
Grenada Stamping and Assembly, Inc. d/b/a ICE Industries
Grenada (“ICE Grenada”), Deerfield Manufacturing,
Inc. d/b/a ICE Industries Deerfield (“ICE
Deerfield”), Ronfeldt Manufacturing, LLC d/b/a ICE
Industries Ronfeldt (“ICE Ronfeldt”), and ICE
Industries Mexico, LLC (“ICE Mexico”)
(collectively, “Defendants”). (Notice Removal Ex.
A, ¶¶ 10-16, DN 1-2 [hereinafter Compl.]).
Plaintiff is a Kentucky citizen. (Notice Removal ¶ 7, DN
1). ICE Industries and ICE Deerfield are Ohio corporations
with principal offices in the state of Ohio. (Notice Removal
¶¶ 9; 11). ICE Grenada is an Ohio corporation with
its principal offices in the state of Mississippi. (Notice
Removal ¶ 10). ICE Ronfeldt and ICE Mexico are both
limited liability companies with ICE Industries being their
sole member. (Notice Removal ¶¶ 13-14).
is in the business of selling automotive parts, which it
purchases wholesale from manufacturers in China and Taiwan.
(Compl. ¶ 1). It is Plaintiff's belief that
Defendants are each involved in supplying automotive and
other parts to end-users. (Compl. ¶ 10). Between 2015
and 2017, Defendants submitted purchase orders to Plaintiff
requesting various automotive parts. (Compl. ¶¶
10-13). Defendants subsequently canceled certain purchase
orders and refused to take receipt of and/or pay for certain
requested parts. (Compl. ¶¶ 10, 13). Additionally,
Plaintiff claims that Defendants attempted to use
Plaintiff's name and reputation to bypass them and
conduct business directly with their manufactures, which
resulted in Defendants unlawfully taking advantage of its
relationship with Plaintiff. (Compl. ¶¶ 14-16).
the disputed purchase orders submitted to Plaintiff by
Defendants essentially contain identical language referencing
Defendants' terms and conditions. (Defs.' Mot.
Transfer Venue 3, DN 9 [hereinafter Defs.' Mot.]). The
language within the purchase orders provides a web address to
access Defendants' terms and conditions and states that a
copy of the terms and conditions will be provided upon
request. (Defs.' Mot. 3). Defendants', however,
updated their website with a new navigation structure in
March 2016 resulting in a slight change in the web address
provided for subsequent purchase orders. (Defs.' Mot. 3).
Other than the change in the web address provided within the
purchase orders, the language referencing Defendants'
terms and agreements remained the same. (Heller Decl.
¶¶ 5-7, DN 12-1). The contested term and condition
is the purchase order's forum-selection clause which
Applicable law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Ohio
without regard to its principles of conflicts of law.
Each party hereto irrevocably and unconditionally
consents to the exclusive venue in any state or federal court
located in the city of Toledo, Ohio (the “Ohio
Courts”) for any litigation arising out
of relating to this Agreement and the transactions
contemplated hereby, and each party hereby waives any
objection to the laying of venue of any such litigation in
the Ohio courts and agrees not to plead any claim in any Ohio
Court that such litigation brought therein has been brought
in an inconvenient forum.
(Williams Decl. Ex. C, at 3, DN 9-1 (emphasis added)).
filed this action on January 9, 2018, in Jefferson Circuit
Court. In the Complaint, Plaintiff asserted seven claims
against the Defendants including: (1) breach of contract; (2)
intentional interference with a contractual relationship
and/or prospective business advantage; (3) unfair
competition/trade practices; (4) conversion; (5) unjust
enrichment; (6) intentional misrepresentation; and (7)
negligent misrepresentation. (Compl. ¶¶ 17-36).
Defendants timely removed the action to this Court on
February 28, 2018. (Notice Removal).
seek to transfer the case to the United States District Court
for the Northern District of Ohio at Toledo pursuant to 28
U.S.C. § 1404(a). Defendants contend the case should be
transferred pursuant to the forum-selection clause provided
in the terms and conditions referenced in the disputed
purchase orders. (Defs.' Mot. 5-7).
STANDARD OF REVIEW
motion to transfer pursuant to a contractual forum-selection
clause is properly viewed as a motion to transfer venue under
28 U.S.C. § 1404(a). Atl. Marine Constr. Co. v. U.S.
Dist. Ct. for the W. Dist. of Tex., 571 U.S. 49, 52
(2013). Section 1404(a) provides that “for 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). The district
court must first determine if the forum-selection clause is
valid and enforceable by considering: “(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.”
Wong v. PartyGaming Ltd., 589 F.3d 821, 828 (6th
Cir. 2009) (citing Sec. Watch, Inc. v. Sentinel Sys.,
Inc., 176 F.3d 369, 375 (6th Cir. 1999)). “The
party opposing the forum selection clause bears the burden of
showing that the clause should not be enforced.”
Id. (citing Shell v. R.W. Sturge, Ltd., 55
F.3d 1227, 1229 (6th Cir. 1995)). If the clause is found to
be enforceable, it is the duty of the court to transfer the
case unless “extraordinary circumstances unrelated to
the convenience of the parties clearly disfavor a
transfer.” Atl. Marine, 571 U.S. at 52.
Transfer of the Action to the Northern ...