AEP Industries, Inc. v. Thiele Technologies, Inc.

Filing 18

MEMORANDUM OPINION AND ORDER GRANTING Thiele's 11 MOTION to Transfer Venue and this action is TRANSFERRED to the US District Court for the Eastern District of Wisconsin, Green Bay Division; directing the clerk to take the necessary steps to effectuate the terms of this order. Signed by Chief Judge William Keith Watkins on 3/29/16. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
AEP INDUSTRIES, INC.,
Plaintiff,
v.
THIELE TECHNOLOGIES, INC.,
Defendant.

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CASE NO. 2:15-CV-315-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiff AEP Industries, Inc., (“AEP”) has a plant in Montgomery,
Alabama, that manufactures flexible plastic packaging products. In 2013, AEP
wished to purchase plastic bag manufacturing equipment that met certain
specifications.

Defendant Thiele Technologies, Inc. (“Thiele”) agreed to

manufacture the equipment for AEP. AEP contends that the equipment Thiele
manufactured did not meet its specifications; that some of the equipment was never
delivered; and that Thiele committed fraud and breach of warranty by failing to
manufacture equipment that met Thiele’s express and implied representations,
promises, and warranties. (Doc. # 1.)
Before the court are Thiele’s motion to transfer venue and motion to dismiss.
(Doc. # 11.) Upon consideration of the motions, the court concludes that the
motion to transfer venue is due to be granted. Therefore, the court will not rule on
the motion to dismiss.

I.

JURISDICTION AND VENUE

The court exercises subject matter jurisdiction pursuant to 28 U.S.C. §
1332(a)(2). AEP is a Delaware corporation with its principal place of business in
New Jersey. Thiele is a Minnesota corporation with its principal place of business
in Minneapolis, Minnesota.

Among the damages AEP seeks is a refund of

$1,835,375.10 AEP paid Thiele for manufacturing equipment that AEP contends is
defective. (Doc. # 1 ¶18.) Thus, the amount in controversy exceeds $75,000.00.
Personal jurisdiction is not contested.
AEP’s claims for breach of contract, breach of warranty, and fraud concern a
contract between AEP and Thiele for the manufacture and delivery of certain
equipment to AEP’s Montgomery, Alabama plastics manufacturing plant; the
contract was consummated in Montgomery, Alabama; and Thiele delivered,
installed, and modified a substantial portion of the equipment at AEP’s
Montgomery plant, where it remains to this day. Therefore, venue is proper. 28
U.S.C. § 1391(b)(2) (“A civil action may be brought in . . . a judicial district in
which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is
situated.”); Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Tex., 134 S.
Ct. 568, 578 (2013) (“[V]enue is proper so long as the requirements of § 1391(b)
are met, irrespective of any forum-selection clause.”).

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II.
A.

DISCUSSION

Standard of Review
A forum-selection clause “does not render venue in a court ‘wrong’ or

‘improper’” under the statutes governing venue in federal courts. Atl. Marine, 134
S. Ct. at 579. However, a valid forum selection clause may be enforced through a
motion to transfer based on the doctrine of forum non conveniens. Id. at 580-81.
For cases in which the transferor and transferee forums are both within the federal
court system, the doctrine is codified at 28 U.S.C. § 1404(a). Id. at 580. Section
1404(a) provides:
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 or to any district or
division to which all parties have consented.

28 U.S.C. § 1404(a).
Ordinarily, a court considering a § 1404(a) motion considers a number of
factors relating to the convenience of the parties and the public interest to decide
whether, on balance, a transfer would serve “‘the convenience of parties and
witnesses’” and be “‘in the interest of justice.’” Atl. Marine, 134 S. Ct. at 581
(quoting 28 U.S.C. § 1404(a)). Those factors include:  
(1) the convenience of the witnesses; (2) the location of relevant
documents and the relative ease of access to sources of proof; (3) the
convenience of the parties; (4) the locus of operative facts; (5) the
availability of process to compel the attendance of unwilling
witnesses; (6) the relative means of the parties; (7) a forum’s
familiarity with the governing law; (8) the weight accorded a
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plaintiff’s choice of forum; and (9) trial efficiency and the interests of
justice, based on the totality of the circumstances.

Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005).
However, when the parties have a contract that contains a valid forum
selection clause, “[t]he calculus changes.” Atl. Marine, 134 S. Ct. at 581. Then,
“the overarching consideration under § 1404(a) is whether a transfer would
promote ‘the interest of justice,’” and the court gives the forum selection clause
“‘controlling weight in all but the most exceptional cases.’” Id. (quoting Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988)).
The presence of a valid forum-selection clause requires district courts
to adjust their usual § 1404(a) analysis in three ways.

First, the plaintiff’s choice of forum merits no weight. Rather, as the
party defying the forum-selection clause, the plaintiff bears the burden
of establishing that transfer to the forum for which the parties
bargained is unwarranted. . . .

Second, a court evaluating a defendant’s § 1404(a) motion to transfer
based on a forum-selection clause should not consider arguments
about the parties’ private interests. When parties agree to a forumselection clause, they waive the right to challenge the preselected
forum as inconvenient or less convenient for themselves or their
witnesses, or for their pursuit of the litigation. A court accordingly
must deem the private-interest factors to weigh entirely in favor of the
preselected forum. . . .

As a consequence, a district court may consider arguments about
public-interest factors only. . . . Because those factors will rarely
defeat a transfer motion, the practical result is that forum-selection
clauses should control except in unusual cases.

Third, when a party bound by a forum-selection clause flouts its
contractual obligation and files suit in a different forum, a § 1404(a)
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transfer of venue will not carry with it the original venue’s choice-oflaw rules—a factor that in some circumstances may affect publicinterest considerations.

Atl. Marine, 134 S. Ct. at 581-82 (citations omitted).
B.

The Parties’ Contract Contains a Valid Forum Selection Clause.
1.

Governing Law

Because the applicable standard of review turns on whether the parties have
a “valid forum-selection clause,” Atl. Marine, 134 S. Ct. at 581, the court must first
determine whether the parties’ contract in this case contains such a clause. This
determination turns on whether the contract includes Paragraph 11 of Thiele’s
November 25, 2013 proposal labeled “Governing Law and Venue For Legal
Actions.” (Doc. # 12-1 at 28 ¶ 11.)
Paragraph 11 contains not only a forum selection clause, but also a choiceof-law provision, which provides that “the contract . . . shall be interpreted and
construed in accordance with the laws of the state where [Thiele] manufactures the
products.” (Doc. # 12-1 at 27 ¶ 11.) It is undisputed that Thiele manufactured the
equipment in Green Bay, Wisconsin, Fergus Falls, Minnesota, and Reedley,
California.1 (Doc. # 12-1 at 4 ¶¶ 14-16.) However, neither the choice-of-law nor
the forum selection provisions apply if the parties’ contract does not include them.

1

AEP argues that the machinery was also manufactured in Alabama because, after Thiele
shipped the first line of equipment to AEP, Thiele representatives went to Montgomery to make
numerous changes to the equipment in an attempt to meet AEP’s specifications. For the reasons
stated in Section III.C., the court concludes that Thiele did not manufacture the equipment in
Alabama.
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Therefore, to determine whether Paragraph 11 exists in the contract that the parties
formed in Alabama, the court must apply Alabama law.2 See St. Paul Fire &
Marine Ins. Co. v. ERA Oxford Realty Co. Greystone, LLC, 572 F.3d 893, 895 n.1
(11th Cir. 2009) (“Because this is a diversity case concerning an Alabama
insurance contract, we apply Alabama substantive law. A federal court sitting in
diversity, as in this case, must apply the choice of law principles of the state in
which it sits. In determining which state’s law applies in a contract dispute,
Alabama follows the principle of lex loci contractus, applying the law of the state

2

In support of its motion to transfer venue, Thiele cites law from including Alabama, as
well as from some jurisdictions that are not controlling, such as Florida. AEP mainly relies on
Alabama law. Thus, the parties do not object to applying Alabama law to the contract formation
issues here. In any event, the applicable Alabama law primarily consists of Alabama’s statutes
adopting the Uniform Commercial Code, which, as its name implies, and for practical reasons, is
generally uniform throughout the states that have adopted it. More importantly, however,
“[a]pplying the choice-of-law clause to resolve the contract formation issue would presume the
applicability of a provision before its adoption by the parties has been established.” Schnabel v.
Trilegiant Corp., 697 F.3d 110, 119 (2d Cir. 2012); see also Trans–Tec Asia v. M/V Harmony
Container, 518 F.3d 1120, 1124 (9th Cir. 2008) (“[W]e cannot rely on the choice of law
provision until we have decided, as a matter of law, that such a provision was a valid contractual
term and was legitimately incorporated into the parties’ contract.”); DeNicola v. Cunard Line
Ltd., 642 F.2d 5, 8 n.2 (1st Cir. 1981) (holding, in an admiralty case, that “[g]iving effect to [the
choice of law] provision for the purpose of determining whether it and the other [contractual]
conditions should be given effect obviously would be putting the barge before the tug.”);
Williams v. Gen. Elec., 13 F. Supp. 3d 1176, 1181 n.5 (N.D. Ala. 2014) (“[A] court cannot
sensibly apply a contractual choice-of-law provision before the court determines that the parties
have a valid contract.”). But see P & S Bus. Machines, Inc. v. Canon USA, Inc., 331 F.3d 804,
807 (11th Cir. 2003) (“The validity of a forum selection clause is determined under the usual
rules governing the enforcement of contracts in general. . . . Consideration of whether to enforce
a forum selection clause in a diversity jurisdiction case is governed by federal law.”). In this
case, unlike in P&S, the applicability of the forum selection clause is a question of the existence
of a forum selection clause (i.e., whether the parties formed a contract that includes the clause),
not a question of the enforceability of a valid forum selection clause that is indisputably in the
parties contract.
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where the contract was formed. We are being asked to interpret an Alabama
insurance policy; therefore, Alabama substantive law applies.” (citation omitted)).
2.

Thiele’s Offer

On November 25, 2013, Thiele sent AEP a proposal to manufacture plasticbag-making equipment. (Doc. # 12-1 at 7.) Thiele designated the proposal as
number 13-10-56279 R3. (Doc. # 12-1 at 7.) Thiele’s proposal included detailed
terms, such as specifications and prices for the various components of the
equipment to be manufactured, a statement that the offer would be valid for thirty
days, a proposed shipping date, and other terms and conditions of sale such as
warranties and provisions governing testing materials, shipment, and contract
cancellation. (Doc. # 12-1 at 7-27.) The proposal expressly indicated that it was
intended to serve as the parties’ contract. (See, e.g., Doc. # 12-1 at 27 ¶ 11
(provision in the “Terms and Conditions” section of the proposal discussing “the
contract between Seller and Purchaser, including these Terms and Conditions of
Sale”).)
The parties agree that Thiele’s proposal constituted an offer. (See, e.g., Doc.
# 16 at 9-10, 16-17 (AEP’s brief in opposition to the motion to transfer,
characterizing AEP’s purchase order as an “acceptance” that contained terms and
conditions different from, or in addition to, those in Thiele’s proposal/“offer”).)
See Ala. Code § 7-2-206(1)(a) (“Unless otherwise unambiguously indicated by the
language or circumstances: . . . An offer to make a contract shall be construed as
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inviting acceptance in any manner and by any medium reasonable in the
circumstances.”); see generally Bergquist Co. v. Sunroc Corp., 777 F. Supp. 1236,
1248-49 (E.D. Pa. 1991) (collecting cases from numerous jurisdictions to explain
that, under the UCC, “[t]he general rule is price quotations are not offers, but rather
are mere invitations to enter into negotiations or to submit offers . . . . However, if
detailed enough, a price quotation can amount to an offer which can be accepted.
But to do so, the offer[or] must intend that the contract exist upon acceptance of
the offer; that is, it must reasonably appear from the price quotation that assent to
that quotation is all that is needed to ripen the offer into a contract. Whether this
price quotation is an offer is a question of fact that depends upon the parties’ acts,
their expressed intent, and the circumstances surrounding each transaction.”
(citations omitted)).
Thiele’s offer contained the following relevant provisions:
1. Applicability: Seller’s sale of products and services is expressly
conditioned upon the terms and conditions contained herein. All
quotations, offers to sell, proposals, acknowledgments and
acceptances of orders by Seller are subject to these Terms and
Conditions of Sale, and acceptance by Purchaser is expressly limited
to them. Any conflicting terms and conditions set forth in any
purchase order or similar communication submitted to Seller by
Purchaser are objected to, and are deemed proposals for addition to
the contract of sale, and do not become part of the contract of sale
between Seller and Purchaser unless expressly and separately agreed
to in writing by Seller. Authorization by Purchaser, whether written or
oral, for Seller to supply the products and services will constitute
acceptance of these Terms and Conditions of Sale.

. . . . 

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11. Governing Law And Venue For Legal Actions: The contract
between Seller and Purchaser, including these Terms and Conditions
of Sale, shall be interpreted and construed in accordance with the laws
of the state where Seller manufactures the products. The exclusive
jurisdiction for any legal proceedings involving the contract between
Seller and Purchaser, including these Terms and Conditions of Sale,
shall be the state or federal courts located in the county or judicial
district where Seller manufactures the products. Purchaser expressly
consents to the jurisdiction and venue of such courts.

(Doc. # 12-1 at 26-27.)
2.

AEP’s Acceptance

On December 3, 2013, AEP sent Thiele a purchase order for “QUOTE # 310-56279 R3.” (Doc. # 16-1 at 33.) AEP’s purchase order contained the following
relevant provision:
2. VARIATIONS: No variations in the delivery schedule, price,
quantity, specifications, or other provisions of this order will be
effective unless agreed to in writing and signed by the purchasing
agent or other authorized representative of [AEP].

(Doc. # 16-1 at 36 ¶ 2 (emphasis added).)
AEP’s purchase order did not contain a provision regarding forum selection
in the event of a dispute involving the contract. (Doc. # 16-1 at 36.)
Ala. Code 1975 § 7-2-207(a) provides:
A definite and seasonable expression of acceptance or a written
confirmation which is sent within a reasonable time operates as an
acceptance even though it states terms additional to or different from
those offered or agreed upon, unless acceptance is expressly made
conditional on assent to the additional or different terms.

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AEP does not argue that the purchase order failed to operate as an
acceptance on grounds that the purchase order expressly made acceptance
conditional on Thiele’s assent to AEP’s terms.

Instead, AEP argues that its

purchase order operated as an acceptance that contained terms in addition to, or
different from, Thiele’s offer. (See Doc. # 16 at 17.) However, AEP does not
point to any term in its acceptance that is “in addition to or different from” Thiele’s
forum selection clause. As AEP points out, its purchase order acceptance did state
that “[n]o variations in the . . . provisions of this order [would] be effective,” but
AEP does not explain which provision of its purchase order, if any, would be
“varied” by the forum selection clause in Thiele’s earlier proposal.3 Accordingly,
with respect to forum selection, it does not appear that the acceptance contains

3

AEP’s purchase order did contain the following provision:

12. MISCELLANEOUS: This purchase order, as the same may be amended or
modified in writing, supersedes all prior understandings, transactions and
communications, or writings with respect to the matters referred to herein. When
[Thiele] has not expressly accepted this order, Thiele, by commencing work
hereunder, shall be deemed to have agreed to all the provisions hereof.

(Doc. # 16-1 at 36 ¶ 12.)
AEP does not argue that Paragraph 12 of its purchase order is applicable to the court’s
consideration of the motion to transfer. In fact, AEP does not mention Paragraph 12.
Accordingly, for purposes of the motion to transfer, the court will ignore Paragraph 12. Fils v.
City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011) (“[D]istrict courts cannot concoct or
resurrect arguments neither made nor advanced by the parties.”); Polk v. Sears, Roebuck, & Co.,
No. 11–0725–WS–B, 2012 WL 1640708, *3 (S.D. Ala. May 8, 2012) (“It is well-established that
courts cannot make a party’s arguments for it or ‘fill in the blanks’ on that party’s behalf.”). Cf.
Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (holding that federal courts
“have a limited and neutral role in the adversarial process, and are wary of becoming advocates
who comb the record of previously available evidence and make a party’s case for it”).
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additional or different terms from the offer. Instead, the offer contains a forum
selection clause, and the acceptance says nothing at all about the selection of a
forum. Therefore, the parties’ contract contains a forum selection clause.
Alternatively, to the extent that AEP’s purchase order could be deemed an
acceptance containing terms that are different from or in addition to Thiele’s offer,
the forum selection clause is nevertheless part of the parties’ contract. Alabama’s
Uniform Commercial Code states:
The additional terms [in the acceptance] are to be construed as
proposals for addition to the contract. Between merchants such terms
become part of the contract unless: (a) The offer expressly limits
acceptance to the terms of the offer; (b) They materially alter it; or (c)
Notification of objection to them has already been given or is given
within a reasonable time after notice of them is received.

Ala. Code § 7-2-207(2).
To the extent that AEP’s acceptance conflicts with the forum clause in
Thiele’s offer by virtue of omitting a forum selection clause, the terms of AEP’s
acceptance are “different from,” not “in addition to” Thiele’s offer.

If read

literally, § 7-2-207(2) applies only to additional terms, not different ones. Some
states approach § 7-2-207(2) literally; others view § 7-2-207(2) as applying to both
different and additional terms.

See generally 24 Causes of Action 575 § 24

(describing different jurisdictions’ approaches to § 7-2-207(2)). Neither party cites
a controlling Alabama case definitively setting forth Alabama’s approach to the

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issue.4 However, AEP contends that § 7-2-207(2) applies.5 (Doc. # 16 at 17.)
Thiele contends that, if § 7-2-207(2) applies, it favors Thiele because, in making its
offer, Thiele specifically objected to the incorporation of different or additional
terms. (Doc. # 17 at 6-7.)
Thiele is correct. Under § 7-2-207(2)(c), different or additional terms in the
acceptance do not become part of the parties’ agreement if the offeror has given
notification of objection to the additional terms. Thiele’s offer expressly stated
that
[a]ny conflicting terms and conditions set forth in any purchase order
or similar communication submitted to Seller by Purchaser are
objected to, and are deemed proposals for addition to the contract of
sale, and do not become part of the contract of sale between Seller and
Purchaser unless expressly and separately agreed to in writing by
Seller.

(Doc. # 12-1 ¶ 1.)
Alternatively, as AEP itself points out, an acceptance negating a forum
selection clause would be a material alteration to the terms of the offer and,
therefore, would not become part of the parties’ contract. (See Doc. # 16 at 18

4

The cases cited by AEP are distinguishable. The holding of Electrical Box & Enclosure,
Inc. v. Comeq, Inc., 626 So. 2d 1250 (Ala. 2003) did not turn on the application of § 7-2-207(2)
because both parties’ forms incorporated the contested arbitration clause by reference. Similarly,
in Kennedy Elec. Co., v. Moore-Handly, Inc., the offeror’s terms were attached to the acceptance.
5

Because both parties appeal to § 7-2-207(2), neither party can be prejudiced by its
application, and the court will assume, without deciding, that Alabama would apply § 7-2-207(2)
in cases where, as here, the acceptance proposes terms that are different from the offer rather
than merely additional to the offer. The court notes that applying § 7-2-207(2) to different as
well as additional terms is consistent with Official Comment 3 to § 7-2-207(2), which states that
“[w]hether or not additional or different terms will become part of the agreement depends upon
the provisions of subsection (2).”
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(citing Duro Textiles, LLC v. Sunbelt Corp., 12 F. Supp. 3d 221, 224 (D. Mass.
2014).)6
Accordingly, even if AEP’s purchase order could be construed as containing
“different” terms providing for no forum selection clause, those different terms are
excluded from becoming part of the parties’ agreement by virtue of § 7-2207(2)(c). Therefore, to the extent that the provisions of AEP’s purchase order are
different from the forum selection clause in Thiele’s proposal, the provisions of
AEP’s purchase order are not part of the parties’ contract, and the provisions of the
Thiele’s offer govern.
C.

Under the Forum Selection Clause, the United States District Court for
the Middle District of Alabama is Not an Appropriate Venue.
The forum selection clause provides that exclusive jurisdiction for any legal

proceedings involving the contract will lie in “the state or federal courts located in
the county or the judicial district” where the equipment was manufactured. In this
case, it is undisputed that the equipment was manufactured in Green Bay,
Wisconsin, Fergus Falls, Minnesota, and Reedley, California. (Doc. # 12-1 at 4 ¶¶
14-16.)

AEP argues that the equipment was also manufactured in Alabama

because, after Thiele manufactured some of the equipment and shipped it to

6

AEP cites Duro Textiles for the proposition that the forum selection clause in Thiele’s
offer is “knocked out” because it conflicts with AEP’s acceptance. However, Duro Textiles does
not support AEP’s position. AEP also cites Ala. Code 1975 § 7-2-207(3) for the proposition that
conflicting terms in the parties’ forms cancel each other out. Section 7-2-207(3) is inapposite. It
applies in cases when “[c]onduct by both parties . . . recognizes the existence of a contract . . .
although the writings of the parties do not otherwise establish a contract.” Ala. Code 1975 § 7-2207(3). Neither party argues that this is such a case.
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Montgomery, Alabama, engineers and other personnel from Thiele came to
Alabama over the course of five months to overhaul the machinery and rewrite
software in an attempt to make the equipment meet AEP’s specifications. (Doc. #
16-1 at 5 ¶¶ 16, 18. Thiele contends that its work on the equipment constituted
“installing” the equipment rather than “manufacturing” it. The only definition the
parties provide to establish the meaning of “manufacturing” and “installation” is
the following:
“Manufacture” is defined as the process of making wares by hand or
by machinery especially when carried on systematically with division
of labor, whereas “install” means to make (a machine, a service, etc.)
ready to be used in a certain place.

(Doc. # 12 at 10 (citing Merriam-Webster’s Collegiate Dictionary 648, 757 (11th
ed. 2012); Doc. # 16 at 14.)
Because both parties agree on this definition and provide no other, the court
concludes that the parties agree that the term “manufacture” is unambigious and
that this definition conveys their intent as to the meaning of the term. Therefore,
the court will use the parties’ definition. See Certain Underwriters at Lloyd’s,
London v. S. Nat. Gas Co., 142 So. 3d 436, 454 (Ala. 2013) (holding that contracts
“must be construed to give effect to the intent of the parties and that, if the terms of
the contract are clear and unambiguous, there is no need for judicial construction”);
see also Homes of Legend, Inc. v. McCollough, 776 So. 2d 741, 746 (Ala. 2000)
(“‘[A]s with any other contract, the parties’ intentions control.’” (quoting
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Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 626
(1985)); Loerch v. Nat’l Bank of Commerce of Birmingham, 624 So. 2d 552, 553
(Ala. 1993) (holding that “the intention of the parties controls in construing a
written contract,” and that, where the contract terms are unambiguous, the parties’
intent is derived from the ordinary meaning of the terms of the contract itself).
AEP argues that, after some of the machinery was “installed” in
Montgomery, it failed to work as promised. (Doc. # 16 at 11-12.) Therefore,
according to AEP, over a period of more than five months, Thiele engineers and
personnel came to Montgomery, Alabama, where they “added,” “designed,”
“installed,” “modified,” “redesigned,” “removed,” and “replaced” numerous parts
of the equipment.

(Doc. # 16 at 13-14.)

AEP also alleges that Thiele sent

computer programmers to Montgomery to “rewrite and redesign the software to
correct, add, and delete aspects of the program.” (Doc. # 16 at 14.) Thiele does
not, however, allege that any of the altered parts or software programs were
“ma[de] . . . by hand or by machinery especially . . . systematically with division
of labor.” (Doc. # 12 at 10; Doc. # 16.) Thiele also does not provide any evidence
that the overhauling of the equipment as a whole involved “making” the equipment
“by hand or by machinery especially when carried on systematically with division
of labor.” (Doc. # 12 at 10; Doc. # 16.) Accordingly, it does not appear from this
record that any of the alterations to the equipment that occurred in Alabama
involved “manufacturing” as defined by the parties. Rather, the modifications
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Thiele performed in Montgomery were more in the nature of “installation,” which,
in contrast to manufacturing, the parties define as “mak[ing]” the equipment and its
component parts “ready to be used in a certain place.” (Doc. # 12 at 10; Doc. #
16.)
Therefore, the forum selection clause does not allow venue to lie in the
United States District Court for the Middle District of Alabama.
D.

The Case Will Be Transferred to the United States District Court for
the Eastern District of Wisconsin
Pursuant to the forum selection clause, this case may be transferred to a

United States District Court in any of three venues: the Sixth Division of the
District of Minnesota; the Fresno Division of the Eastern District of California; and
the Green Bay Division of the Eastern District of Wisconsin. Thiele seeks a
transfer to the United States District Court for the Eastern District of Wisconsin.
AEP does not argue that either of the other two district courts would be more
convenient. Further, AEP does not argue that this is an unusual case in which
public interest factors weigh against transfer to the Eastern District of Wisconsin.
See Atl. Marine, 134 S. Ct. at 581-82 (“[A]s the party defying the forum-selection
clause, the plaintiff bears the burden of establishing that transfer to the forum for
which the parties bargained is unwarranted. . . . [When parties have agreed to a
forum-selection clause,] a district court may consider arguments about publicinterest factors only. . . . Because those factors will rarely defeat a transfer motion,
16

the practical result is that forum-selection clauses should control except in unusual
cases.”).
Accordingly, this case will be transferred to the United States District Court
for the Eastern District of Wisconsin, Green Bay Division.
III.

CONCLUSION

Accordingly, Thiele’s Motion to Transfer Venue (Doc. # 11) is GRANTED,
and this action is TRANSFERRED to the United States District Court for the
Eastern District of Wisconsin, Green Bay Division.
The Clerk of the Court is DIRECTED to take the necessary steps to
effectuate the terms of this order.
DONE this 29th day of March, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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