Belcher-Robinson, L.L.C. v. Linamar Corporation et al

Filing 27

MEMORANDUM OPINION AND ORDER that Defendant Roctel's 22 Motion to Dismiss is DENIED as further set out in the order. Signed by Hon. Chief Judge Mark E. Fuller on 3/31/2010. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION B E L C H E R -R O B IN S O N , L.L.C., Plaintiff, v. L IN A M A R CORPORATION, et al., D e f e n d a n ts. ) ) ) ) ) ) ) )

CASE NO. 3:09-cv-131-MEF (W O )

MEMORANDUM OPINION AND ORDER I . INTRODUCTION T h is dispute between a tier-two and a tier-three supplier in the General Motors supply c h a in arose from an agreement between the two for manufacture and delivery of malleable iro n valve housings. The plaintiff-supplier, Belcher-Robinson, L.L.C. ("Belcher-Robinson"), c la im s it manufactured and delivered the valve housings in accordance with an agreement b e tw e e n it and defendants-buyers but was not paid for some of those valve housings. Defendants claim they satisfied their obligations under the agreement between the parties and s u f f e re d damages of their own owing to the seizure and closing of Belcher-Robinson's plant b y creditors. They have not filed a counterclaim. The case is presently before the Court on a motion to dismiss for improper venue, w h ic h defendant Linamar Holdings, Inc., doing business as Roctel Manufacturing, ("Roctel") f ile d on July 14, 2009. (Doc. #22). Roctel argues by this motion that a forum-selection c l a u s e is binding on the parties and requires that this litigation take place in the courts of -1-

Ontario, Canada. Alternately, Roctel argues that the court should dismiss this case pursuant to the doctrine of forum non conveniens. After careful consideration of the motion, BelcherR o b in so n 's response, Roctel's reply, evidence submitted by both parties, and the applicable a u th o ritie s, the Court finds that the Motion is due to be DENIED. I I . JURISDICTION AND VENUE T h is Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332, a s there is complete diversity between the parties and the amount in controversy exceeds $ 7 5 ,0 0 0 .0 0 . Defendants have not argued that the Court lacks personal jurisdiction over them, a n d there is no dispute that venue is proper pursuant to 28 U.S.C. § 1391(a). Roctel argues, h o w e v e r, that this case should be dismissed for improper venue because of a forum-selection c la u s e that it contends governs the forum and choice of law applicable to this dispute. III. FACTUAL AND PROCEDURAL BACKGROUND A . Facts in the Complaint A c c o rd in g to the allegations in the complaint, this case arises from a dispute between B e lc h e r-R o b in s o n , a Delaware limited liability company with its principal place of business in Tallapoosa County, Alabama, and defendants Linamar Corporation ("Linamar"), a C a n a d ia n corporation doing business in the State of Alabama; Roctel, a Canadian corporation d o in g business in the State of Alabama; Linamar de Mexico S.A. de C.V., a Mexican c o rp o ra tio n doing business in the State of Alabama; and five fictitious defendants. B e tw e e n January 1, 2007 and September 30, 2008, Belcher-Robinson manufactured

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malleable iron stator shafts which Linamar and Roctel ordered. Belcher-Robinson delivered th e shafts to Linamar and Roctel, but the defendants failed to pay for them as agreed. Plaintiff seeks $350,000.00 plus interest and costs for these "goods sold and d e liv e re d ," which is the style of Count I. Count II of the Complaint contains no additional f a c t u a l allegations but instead appears to present an alternative legal theory. By Count II, P la in tif f seeks $350,000.00 "due by open account." B . Defendant's Evidence R o c te l submitted with its motion to dismiss several exhibits. Principal among them is a purchase order. Roctel claims that the terms of this purchase order govern this dispute b e tw e e n the parties. This "Blanket Purchasing Agreement," blanket order number fifty-five ( " p u rc h a se order 55"), dated November 28, 2005, states that all shipping documentation s h o u ld reference "PO# 22533," and was signed by Mario Martini, an employee of Roctel. The location on the purchase order specified for "Supplier Acknowledgment" is blank, as is th e associated place for the date of any such acknowledgment. T h e second page of the purchase order is headlined "Terms and Conditions" and c o n ta in s a full page of small-font boilerplate. The final term and condition ("paragraph 25") g o v e rn s choice of law and jurisdiction: 2 5 . CHOICE OF LAW AND JURISDICTION: The Buyer and Seller Agree th a t the courts of Ontario shall have jurisdiction for all purposes. The In te rn a tio n a l Sales of Goods Act shall not apply. There were various revisions to purchase order 55 over the course of dealing between

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the parties. According to Roctel, the final one was Revision 6, which is included as Exhibit 5 . That version of purchase order 55 is substantially similar to the initial order, though it s ta te s its end date as December 31, 2010, and differs in small ways with respect to several o f its terms. It again contains the language "Reference PO# 22533" on all shipping d o c u m e n ta tio n , and lacks a "Supplier Acknowledgment." Paragraph 25 is the same as q u o te d above, but there is an additional page of raw materials terms and conditions, which d o n 't appear to bear on the current dispute. Roctel also submitted a reply to the Plaintiff's response. Included in the attached e v id e n tia ry materials are six invoices from Belcher-Robinson that reference "Purchase Order: 2 2 5 3 3 -B la n k 55." Roctel also includes two Belcher-Robinson packing lists that reference " P u rc h a s e Order: 22533-Blank 55." C . Plaintiff's Evidence B e l c h e r -R o b in s o n submitted evidentiary material with its response to the Roctel's m o tio n to dismiss. Among these materials is an affidavit by Richard Porter, who was p re s id e n t of Belcher-Robinson at all relevant times. He states in the affidavit that BelcherR o b in so n did not "agree, consent, [or] acquiesce to any terms of an agreement . . . that c o n tra c tu a lly bound Belcher-Robinson LLC to Roctel's unilaterally stated terms of a g re e m e n t as set out in" purchase order 55. Furthermore, he claims that Belcher-Robinson " re f u te d all standard terms . . . and communicated this lack of consent or intent to be bound to Roctel and Linamar employees including Mario Martini." Finally, he states that "Belcher-

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Robinson, LLC did not enter into any forum-selection agreement." D . Procedural History B e lc h e r-R o b in s o n filed this civil action on December 29, 2008, in the Circuit Court o f Tallapoosa County, Alabama (Doc. # 5-2). Defendant Linamar removed the case to this C o u rt on February 20, 2009 (Doc. # 5), and answered the complaint three days later (Doc. # 2). Plaintiff amended the complaint with leave of the Court on April 8, 2009 (Doc. # 13). Defendant Roctel filed a motion to dismiss in lieu of a responsive pleading on July 14, 2009, (D o c . # 22), following international service of process. Belcher-Robinson, upon order of the C o u rt, filed a response in opposition to the motion to dismiss (Doc. # 25), and Roctel filed a reply (Doc. # 26). Evidentiary exhibits accompanied the motion to dismiss and both s u b s e q u e n t briefs. The motion to dismiss is therefore under submission and ripe for d is p o s itio n . IV. DISCUSSION R o c te l's extensive briefing in support of its motion to dismiss contains two principal a rg u m e n ts. First, Roctel argues that the forum-selection clause in its purchase order 55 binds th e parties to this action and requires dismissal of the claims against Roctel. Second, as a b a c k s to p argument, Roctel argues that the doctrine of forum non conveniens suggests d is m is s a l of the claims against Roctel. Belcher-Robinson of course disagrees on both counts a n d argues that the forum-selection clause is unenforceable, or at worst permissive, and that f o ru m non conveniens presents no challenge to the case continuing in this district. For the

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reasons set forth below, the Court finds that, under the applicable legal standard, BelcherR o b in so n is not bound by the forum-selection clause in purchase order 55 and that forum non c o n v e n ie n s does not compel dismissal of the claims against Roctel. Therefore, the motion to dismiss is due to be denied. A . Forum-selection Clause 1 . Legal Standard In the Eleventh Circuit, a motion to dismiss on the basis of a forum-selection clause is brought pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure as a motion to d is m is s for improper venue. Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1 2 9 0 (11th Cir. 1998). " A judge may make factual findings necessary to resolve motions to dismiss for . . . im p ro p e r venue," so long as the resolution of the factual disputes is not an adjudication on th e merits of a case. Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) (citing Murphy v . Schneider Nat'l, Inc., 362 F.3d 1133, 1139­40 (9th Cir. 2004)). Thus, in the context of a R u le 12(b)(3) motion to dismiss for improper venue "the court may consider matters outside th e pleadings such as affidavit testimony, particularly when the motion is predicated upon k e y issues of fact." Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004) (in te rn a l quotation marks omitted). When venue is challenged by a Rule 12(b)(3) motion, the plaintiff has the burden of s h o w in g that venue in the forum is proper. Id.; Interlease Aviation Investors II (Aloha)

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L.L.C. v. Vanguard Airlines, Inc., 262 F. Supp. 2d 898, 913 (N.D. Ill. 2003); Indymac M o r tg a g e Holdings, Inc. v. Reyad, 167 F. Supp. 2d 222, 237 (D. Conn. 2001). A court "must a c c e p t all allegations of the complaint as true, unless contradicted by the defendants' a f f i d a v i ts , and when an allegation is so challenged the court may examine facts outside of th e complaint to determine whether venue is proper." Wai, 315 F. Supp. 2d at 1268. A c o u rt must draw all reasonable inferences and resolve all factual conflicts in favor of the p la in tif f . Id.; Hodgdon Powder Co., Inc. v. Clean Shot Techs., Inc., 92 F. Supp. 2d 1170, 1 1 7 1 ­ 7 2 (D. Kan. 2000); see also Lawrence v. Dunbar, 919 F.2d 1525, 1530 (11th Cir. 1 9 9 0 ) (holding that courts should apply the summary judgment standard when ruling on a m o tio n to dismiss which asserts a factual attack on subject matter jurisdiction or a related typ e of motion, including ones for improper venue). "If the court chooses to rely on p le a d in g s and affidavits, the plaintiff need only make a prima facie showing of [venue]." Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005) (quoting CutCo Indus. v. N a u g h to n , 806 F.2d 361, 364­65 (2d Cir. 1986)). 2 . Analysis T h e United States Supreme Court has established two separate standards for c o n s id e rin g the impact of forum-selection clauses on venue. In M/S Bremen v. Zapata OffS h o r e Co. the Court altered the "traditional view of many American courts" that forums e le c tio n clauses removing a case from American courts are against public policy and u n e n f o rc e a b le . 407 U.S. 1, 6 (1972). The Court determined instead that "such clauses are

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prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances." Id. at 10 (inner quotations omitted). The Court lis te d "fraud, undue influence, or overweening bargaining power" as conditions that might m a k e enforcement of a forum-selection clause unreasonable. Id. at 12. T h e Supreme Court in Zapata said its given standard "is the correct doctrine to be f o llo w e d by federal district courts sitting in admiralty." Zapata, 407 U.S. at 10 (emphasis a d d e d ). However, some lower courts applied Zapata to forum-selection clauses generally. See, e.g., In re Fireman's Fund Ins. Cos., 588 F.2d 93, 95 (5th Cir. 1979) (applying Zapata to a transfer under 28 U.S.C. § 1404(a)).1 T h e Supreme Court made clear in a later case that the Zapata standard did not govern a ll considerations of forum-selection clauses. In Stewart Organization, Inc. v. Ricoh Corp., th e Court considered "whether a federal court sitting in diversity should apply state or federal la w in adjudicating a motion to transfer a case to a venue provided in a contractual forums e le c tio n clause." 487 U.S. 22, 24 (1988) (emphasis added). After noting that the Eleventh C irc u it "applied the standards articulated in the admiralty case of" Zapata, the Supreme C o u rt "affirm[ed] under somewhat different reasoning." Id. at 25 (emphasis added). The C o u rt found that "the first question for consideration should have been whether [28 U.S.C.] § 1404(a) itself controls respondent's request to give effect to the parties' contractual choice

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981. -8-

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of venue." Id. at 29. The Court went on to say that a forum-selection clause "will be a s ig n if ic a n t factor that figures centrally" in a court's consideration of a motion to transfer u n d e r § 1404(a). Id. See also 14D Charles Alan Wright & Arthur R. Miller, Federal Practice a n d Procedure § 3803.1, at 79 (3d ed. 2007) ("The combined rule of these cases is that a f e d e ra l court sitting in admiralty jurisdiction should apply a forum-selection clause if it is `re a s o n a b le ,' but a federal court sitting in diversity or federal question jurisdiction should ta k e the clause into account only as one element in the balancing test required by Section 1 4 0 4 (a ) ." ) . N o n e of these cases specify the standard for considering a forum-selection clause in th is instance, a non-admiralty case where the named venue in the forum-selection clause is in another country. Defendants asserted only diversity jurisdiction in removing this case f ro m state court. And though this court is sitting in diversity, the standard in Ricoh Corp. c a n n o t apply because Roctel is not moving for a transfer to another venue within the United S ta te s. See 28 U.S.C. § 1404(a) ("For the convenience of parties and witnesses, in the in te re s t of justice, a district court may transfer any civil action to any district or division w h e re it might have been brought."). The best solution would be to use the Zapata standard in these types of cases. T h e Eleventh Circuit said as much in Lipcon v. Underwriters at Lloyd's, London. 148 F .3 d 1285 (11th Cir. 1998). Though dealing largely with federal securities law, the Eleventh C irc u it in Lipcon applied Zapata to a forum-selection clause on the premise that it was the

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proper standard for "international agreements." See, e.g., id. at 1292. The Lipcon Court a p p ro v in g ly noted the Supreme Court's statement that "[w]e cannot have trade and c o m m e rc e in world markets . . . exclusively on our terms, governed by our laws, and resolved in our courts," especially given "present-day commercial realities and expanding in te rn a tio n a l trade." Id. at 1294 (quoting Zapata, 407 U.S. at 9, 15). Given the Supreme C o u rt's concern in Zapata with issues of predictability and comity in international commerce, id ., it makes sense to apply Zapata and its progeny to forum-selection clauses in international a g re e m e n ts , even in the absence of admiralty jurisdiction.2 H o w e v e r, the Zapata standard only comes into play if the forum-selection clause can p ro p e rly be deemed part of the contract between the parties at this stage in the litigation. The p a rtie s in this case are all located in contracting states of the United Nations Convention on C o n tra c ts for the International Sale of Goods ("CISG").3 Therefore, the CISG governs this d is p u te . CISG, art. 1(1)(a), Dec. 11, 1986, reprinted at 52 Fed. Reg. 6262 (Mar. 2, 1987) (" T h is Convention applies to contracts of sale of goods between parties whose places of b u s in e s s are in different States when the States are Contracting States."); see also, e.g.,

This conclusion is strengthened in this case because the standard in Ricoh Corp., premised on the application of 28 U.S.C. § 1404, would not be applicable, as the venue named in the forum-selection clause is not a United States judicial district. The United States Senate ratified the CISG in 1986, and it came into effect between the United States and the other contracting states in 1988. MCC-Marble Ceramic Ctr., Inc. v. Ceramica Nuova D'Agostino, S.P.A., 144 F.3d 1384, 1386 n.5 (11th Cir. 1998). Canada became a contracting state on May 1, 1992. International Sale of Goods Contracts Convention Act, 1991 S.C., ch. 13 (Can.). -103

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Treibacher Industrie, A.G. v. Allegheny Techs., Inc., 464 F.3d 1235, 1238 n.5 (11th Cir. 2 0 0 6 ); MCC-Marble Ceramic Ctr., Inc. v. Ceramica Nuova D'Agostino, S.P.A., 144 F.3d 1 3 8 4 , 1386 (11th Cir. 1998). Furthermore, the CISG governs the formation of this contract o f sale. CISG, art. 4; see also id., art. 100(1) ("This Convention applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date w h e n the Convention enters into force in respect of the Contracting States."). Therefore, the C IS G must be applied, using the standard for a Rule 12(b)(3) motion to dismiss for improper v e n u e , to determine if the parties formed a contract that included the forum-selection clause.4 T h e resolution of the motion to dismiss turns largely on the fact-finding standards a p p lic a b le to motions to dismiss for improper venue. Applying these standards to the case a t bar, the Court finds that Belcher-Robinson is not bound by paragraph 25 of purchase order 5 5 -- n e ith e r the forum-selection clause nor the exclusion of the CISG--because paragraph 2 5 is not part of a contract between the parties. The Court stresses that this conclusion is not a n adjudication on the merits of this question--at a later stage, the evidence might show that

Paragraph 25 of purchase order 55 contains both the forum-selection clause and a clause excluding the CISG. Therefore, if the parties formed a contract that included that provision, the CISG would not apply. However, given that this is an agreement between contracting states to the CISG, the CISG is applicable to determine if the parties did form that contract which excluded the CISG. See Zhejiang Shaoxing Yongli Printing & Dyeing Co., Ltd. v. Microflock Textile Group Corp., No. 06-22608-CIV, 2008 WL 2098062, at *2 (S.D. Fla. May 19, 2008) ("The CISG automatically applies to international sales contracts between parties from different contracting states unless the parties agree to exclude the application of the CISG." (emphasis added)). For simplicity's sake, in determining whether the parties agreed to paragraph 25 of purchase order 55, the Court will refer to all parts of paragraph 25 as the "forum-selection clause." -11-

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Belcher-Robinson is bound by those terms--but is the result of an analysis of the evidence c u rre n tly in the record, viewed in the light most favorable to the plaintiff, and with all factual d is p u te s resolved in the plaintiff's favor. A s Roctel points out, the contract between the parties could have been formed in two w a ys . First--and this is the way Roctel thinks it happened--purchase order 55 might have b e e n an acceptance of an offer that took the form of Belcher-Robinson's price quote.5 S e c o n d , purchase order 55 could have been the offer, which was accepted in Massachusetts b y Belcher-Robinson. T h e crux of the venue question, at least initially, is whether the parties agreed to the c h o ic e of law and jurisdiction provision such that the provision is binding on them, provided th e plaintiff is not excused from enforcement for some other reason. As evidence that the p a rtie s assented to this term, Roctel offers the original and revised blanket purchase order 55, w h ic h contains the subject term. That purchase order contains instructions to reference PO# 2 2 5 3 3 on all shipping documentation. To prove that Belcher-Robinson assented to the terms o n the second page of the purchase order, Roctel offers the numerous invoices and packing lis ts that reference "Purchase Order 22533-Blank 55." If the contract was formed in Ontario by the issuance of purchase order 55, which is w h a t Roctel contends happened, it is an acceptance that contains an additional term (i.e., the f o ru m -s e le c tio n clause). The CISG treats additional terms differently depending on whether

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The price quote documentation is not currently in the record. -12-

they materially alter the offer, but it does not clearly identify whether a forum-selection c la u s e materially alters the offer. Terms "relating . . . to" the "extent of one party's liability to the other or the settlement of disputes" do materially alter the terms of the offer. CISG, a rt. 19(3). The list of materially-altering terms given in the CISG is non-exclusive. See id. (n o tin g that, "among other things," the listed types of terms materially alter the offer). The n o n -e x c lu s iv e nature of the list and the reasonable argument that forum-selection clauses re la te to the settlement of disputes indicate that a forum-selection clause would materially a lte r the offer under the CISG. At least two United States federal courts have reached this c o n c lu s io n . See Chateau Des Charmes Wines Ltd. v. Sabate USA Inc., 328 F.3d 528, 531 (9 th Cir. 2003) (classifying a forum-selection clause as relating to the settlement of disputes w ith in the meaning of CISG art. 19(3)); Solae, LLC v. Hershey Canada, Inc., 557 F. Supp. 2 d 452, 457­58 (D. Del. 2008) (agreeing with Chateau Des Charmes Wines). However, b e c a u s e the Eleventh Circuit has yet to discuss this issue, the forum-selection clause will be e v a lu a te d as both a materially-altering and non-materially-altering term for the purpose of d e c id in g the motion to dismiss. A reply to an offer which contains additional terms that materially alter the offer c o n s titu te s a rejection and counteroffer rather than an acceptance. Id., art. 19. In this s c e n a rio , the inclusion of the forum-selection clause in purchase order 55 materially altered th e offer made by Belcher-Robinson. Therefore, it constituted a rejection and a counteroffer, w h ic h Belcher-Robinson could either accept or reject. In the affidavit of Richard Porter,

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president of Belcher-Robinson at the relevant times, Porter expressly declares that BelcherR o b in so n did not agree to, consent to, or acquiesce in the terms and conditions printed on p u rc h a s e order 55 and did not enter into any forum-selection agreement. The Court is c o m p e lle d by the law of this Circuit to credit these assertions for purposes of this motion. Moreover, Porter claims to have actively objected to the forum-selection clause and to have c o m m u n ic a te d this objection to Roctel. Again, for purposes of this motion, the Court must b e lie v e this testimony. Additionally, Roctel has failed to produce conclusive evidence c o n tra ry to Porter's assertions. Neither the original purchase order 55 nor the final revision p ro v id e d to the Court6 contain a signature in the place appointed for "Supplier A c k n o w le d g m e n t," as one would expect if these purchase orders are to support an inference th a t Belcher-Robinson assented to their terms. When viewed in the light most favorable to B e lc h e r-R o b in s o n , these documents do not support the conclusion that Belcher-Robinson a g re e d to the forum-selection clause. Therefore, under the standard for this motion to d is m is s , Belcher-Robinson never agreed to Roctel's counteroffer, which included the forums e le c tio n clause. T h e other possibility is that a forum-selection clause does not materially alter the o f f e r. When a reply to an offer contains additions or modifications that do not materially a lte r the offer, the reply constitutes an acceptance, "unless the offeror, without undue delay, o b je c ts orally to the discrepancy or dispatches a notice to that effect." CISG, art. 19

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Roctel did not provide revisions one through five. -14-

(emphasis added). If the offeror does make timely objections, "the reply of the offeree is to b e considered as a rejection of the offer rather than as an acceptance." Secretariat

C om m entary, Aug. 29, 2006, http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-19.html. As noted above, under the standard for evaluating this motion to dismiss, the Court must find th a t Belcher-Robinson timely objected to the forum-selection clause in the reply of the o f f e re e . Therefore, under the CISG purchase order 55 is to be considered a rejection of the o f f e r rather than an acceptance. Once again, under the standard for evaluating this motion to dismiss, the parties never agreed to the forum-selection clause. If the contract was formed in Massachusetts,7 purchase order 55 constitutes an offer ra th e r than a purported acceptance. In this scenario, Belcher-Robinson could either accept o r reject that purchase order. Once again, under the standard for evaluating this motion to d is m is s , the Court must find that Belcher-Robinson rejected the offer made by purchase order 5 5 . In the alternative, Belcher-Robinson might have purported to accept the offer while p ro p o s in g alterations, one of which would be the exclusion of the forum-selection clause. If the exclusion of the forum-selection clause were a material change, Belcher-Robinson's o b je c tio n s constitute a rejection and counteroffer. CISG, art. 19. If the exclusion of the f o ru m - s e l e c tio n clause does not materially alter the purchase order, Belcher-Robinson's p u rp o rte d acceptance constitutes an acceptance, and the terms of the contract are--in the a b s e n c e of objections by Roctel to Belcher-Robinson's objections--the terms of the purchase Roctel admits this is a possibility, and the record is not sufficient to allow the Court to determine if the purchase order was an offer or purported acceptance. -157

order with the exclusion of the forum-selection clause. CISG, art. 19(2). There is no e v id e n c e that Roctel made any modifications or objections to those objections made by B e lc h e r-R o b in s o n . Therefore, whether Belcher-Robinson's objections constitute a rejection o f the purchase order offer or a purported acceptance with modifications, the forum-selection c la u s e drops out. In sum, the evidence submitted still leaves open several possibilities for how BelcherR o b in so n and Roctel formed a contract. Construing the evidence presented in BelcherR o b in so n 's favor, as the Court must under the standard for ruling on this motion to dismiss, th e Court finds that the forum-selection clause is not included under any of those p o s s ib i l itie s . Therefore, the motion to dismiss is due to be denied on the grounds of the f o ru m -s e le c tio n clause. B . Forum Non Conveniens U n d e r the doctrine of forum non conveniens, "when an alternative forum has ju ris d ic tio n to hear a case, and when trial in the chosen forum would establish oppressiveness a n d vexation to a defendant out of all proportion to plaintiff's convenience, or when the c h o s e n forum is inappropriate because of considerations affecting the court's own a d m in i s tra tiv e and legal problems, the court may, in the exercise of its sound discretion, d is m is s the case." Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264, 1269 (11th Cir. 2009) (q u o tin g Am. Dredging Co. v. Miller, 510 U.S. 443, 447­48 (1994)). A defendant invoking f o ru m non conveniens "bears a heavy burden in opposing the plaintiff's chosen forum."

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Wilson, 590 F.3d at 1269 (quoting Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 5 4 9 U.S. 422, 430 (2007)). A plaintiff's choice of forum is entitled to deference, and there is a presumption in favor of a plaintiff's choice of forum, particularly where the plaintiffs are c itiz e n s of the United States. SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 3 8 2 F.3d 1097, 1100­02 (11th Cir. 2004). A court conducting an analysis of whether to dismiss a case pursuant to forum non c o n v e n ie n s must first consider private interest factors. King v. Cessna Aircraft Co., 562 F.3d 1 3 7 4 , 1382 (11th Cir. 2009) (quoting La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (1 1 th Cir. 1983)). Private factors the district court should consider when analyzing a forum n o n conveniens claim include the relative ease of access to sources of proof, access to u n w illin g and willing witnesses, ability to compel testimony, the possibility of view of p re m ise s , and the enforceability of a judgment. Liquidation Comm'n of Banco

In te r c o n tin e n ta l, S.A. v. Renta, 530 F.3d 1339, 1356 (11th Cir. 2008). These factors are not e x h a u s tiv e , and the district court should be flexible in applying them. King, 562 F.3d at 1 3 8 1 ­ 8 2 . "A trial court will look at the private interests first and then, if the balance of the p riv a te interests are found `to be in equipoise or near equipoise,' it will `determine whether o r not factors of public interest tip the balance in favor of a trial in a foreign forum.'" Id. at 1 3 8 2 (quoting La Seguridad, 707 F.2d at 1307). The Court therefore turns first to an analysis o f the private interest factors. R o c te l argues that the private interest factors weigh in favor of resolving this dispute

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in Ontario, Canada. They point out that Belcher-Robinson's Alabama plant is no longer in o p e ra tio n , and speculates that necessary business records are likely in Minnesota or M a s s a c h u s e tts , while Roctel's documents are in Ontario, Canada. Roctel also points out that its witnesses are in Ontario, and courts there would likely be able to compel their testimony, w h e re a s this Court likely does not have jurisdiction to subpoena these witnesses. Belcher-Robinson thinks the private interest factors, together with the strong p re f e re n c e afforded to the plaintiff's chosen forum, defeat Roctel's arguments. They claim th e y do not require the testimony of witnesses in Ontario, and that Roctel can send these e m p lo ye e s to testify in their defense. They also point to the easy transmissibility of d o c u m e n ts via e-mail, express delivery, or postal service. Moreover, two of BelcherR o b in so n 's witnesses and high-ranking employees reside in this district. Considering the balance of these factors, together with the presumption in favor of the p la in tif f 's chosen forum, the Court cannot say that trial of this case in the Middle District of A la b a m a would be oppressive, vexatious, or out of all proportion to plaintiff's convenience. Roctel's concerns about witness travel and document transfer are quite mild in the context o f a modern international business dispute and, in any event, would work in equal measure to inconvenience Belcher-Robinson if this litigation took place in Ontario. Moreover, B e lc h e r-R o b in s o n has chosen this forum because it is a convenient one (its former principal p la c e of business and current location of at least two key witnesses), and the Court should o n ly disturb this choice if the balance strongly favors the defendant. Wilson, 590 F.3d at

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1270. In fact, the presumption in favor of a plaintiff's chosen forum is strongest in cases s u c h as this one, where the plaintiff is a corporation of this country. Id. The presumption is so strong that this Court must be "throughly convinced that material injustice is manifest" b e f o re denying an American Corporation access to its forum of choice. Id. Because there is n o injustice manifest, the presumption in favor of Belcher-Robinson's chosen forum cannot b e upset, and the motion to dismiss is due to be denied insofar as it seeks dismissal based on f o ru m non conveniens.8 V . CONCLUSION F o r the foregoing reasons, it is hereby ORDERED that Defendant Roctel's Motion to Dismiss (Doc. #22) is DENIED. D O N E this the 31st day of March, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

Because of this finding regarding the private interest factors, the Court need not reach the weighing of the public interest factors. Liquidation Comm'n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339, 1356 (11th Cir. 2008). -19-

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