Micor Industries, Inc. v. Mazak Corporation

Filing 21

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 2/9/2018. (PSM)

FILED
2018 Feb-09 PM 02:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MICOR INDUSTRIES, INC.,
Plaintiff,
vs.
MAZAK CORPORATION,
Defendant.

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5:17-cv-01408-UJH-LSC

Memorandum of Opinion
Plaintiff Micor Industries, Inc. brings this action against Defendant Mazak
Corporation over disputes concerning the sale and subsequent installation of
certain industrial equipment by Defendant for Plaintiff. Before the Court is
Defendant’s Motion to Dismiss for Forum Non Conveniens or to Transfer (docs. 5
& 6), Plaintiff’s Motion to Remand (doc. 8), and Plaintiff’s Motion to Strike (doc.
15). The Motions have been fully briefed and are ripe for decision. For the
following reasons, Defendant’s Motion to Dismiss for Forum Non Conveniens or to
Transfer is due to be granted; Plaintiff’s Motion to Remand is due to be denied;
and Plaintiff’s Motion to Strike is due to be denied.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Page 1 of 29

Plaintiff is an Alabama corporation formed in 2004 that specializes in
precision and high-tech machining. Its principal and sole place of business is in
Morgan County, Alabama. Defendant is a New York corporation that has its
principle place of business in Kentucky. In 2014, Plaintiff needed additional
capacity to manufacture metal parts for its customers. Plaintiff negotiated with the
Defendant for the purchase of two industrial lathing machines through
Defendant’s authorized distributor, Pinnacle Machine Tools, Inc. (“Pinnacle”). In
December 2014 Plaintiff purchased an Integrex 1200SR for $357,500 and Intergrex
I-630/6S for $717,500 (collectively, the “Equipment”) from Defendant.
Following the purchase and installation of the Equipment, Plaintiff alleges
that the Equipment failed to function correctly. According to Plaintiff, Defendant
refused to accept blame for failure of the Equipment and has failed to properly
repair, replace, or otherwise compensate Plaintiff for the Equipment. Plaintiff
brought suit under a variety of state-law causes of action in the Circuit Court of
Morgan County, Alabama on July 18, 2017.
Defendant timely removed the action to this Court and filed an answer to
Plaintiff’s Complaint on August 8, 2017. Less than two weeks later, Defendant filed
its Motion to Dismiss for Forum Non Conveniens or to Transfer. The Court ordered
that the parties brief the Motion. After the entry of the Court’s Order, but before
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Plaintiff’s Response was due, Plaintiff filed its Motion to Remand. The Court
ordered that the Motion to Remand also be briefed. The crux of both motions
concerns forum-selection clauses contained in (1) documents sent by Defendant to
Plaintiff, specifically the Sales Order Confirmations (“SOCs”), and (2) the
Purchase Orders (“POs”) sent from Plaintiff to Defendant. Both parties insist that
the forum-selection clause in their document became part of the parties’ contract.
The Court thus reviews the allegations in the Plaintiff’s Complaint as well as
evidence presented in the parties’ Motions concerning the formation of the
contract for the sale of the equipment between the parties.
a. PLAINTIFF’S COMPLAINT
Plaintiff’s Complaint contains few facts surrounding the formation of the
contract between the parties. Nor does it contain any detailed allegations
concerning the negotiations for purchase of the Equipment. Instead, the Complaint
simply states that the Plaintiff’s POs are the source of the terms of the contract that
govern the purchase of the Equipment: “Plaintiff and [Defendant] by agreement
entered into [Plaintiff’s] [POs] for the Equipment whereby they agreed this Court
would be the exclusive venue and jurisdiction for any legal cause of action between
the parties (as shown in attached Exhibit A).” (Doc. 1 ¶ 7.) The Complaint
specifically quotes the choice-of-law-and-forum clause in the POs:
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APPLICABLE LAW/REMEDIES: This Purchase Order shall be
governed by the laws of the State of Alabama, without regard to such
state’s principles of conflicts of laws. Jurisdiction for any cause of
action between the parties shall lie exclusively in the Circuit Court of
Morgan County, Alabama. References to specific remedies of
[Plaintiff] herein does not exclude other available remedies of
[Plaintiff].
(Id.) This is the extent of the Plaintiff’s allegations in the Complaint relating to the
formation of the contract.
b. DEFENDANT’S MOTION TO DISMISS
CONVENIENS OR TO TRANSFER

FOR

FORUM NON

According to the Defendants the terms in the POs do not govern the parties’
contract. Instead, the SOCs are the source of the contract terms. On December 16,
2014, Plaintiff executed and delivered to Pinnacle SOCs for the purchase of the
Equipment after negotiations between the parties. (Doc. 14 ¶ 4.; Doc. 6 Exs. A-D.)
The SOCs were composed of both typed and handwritten information. The SOCs
included a pre-typed recipient to whom Plaintiffs should send the SOCs, Jerry
Edwards, the representative of Pinnacle; the date “12/16/2014”; the name and
address of Plaintiff; and

a description of the Equipment, with components

itemized and the cost of each component listed. (Doc. 6 Exs. A-D.) Directly to the
right of Plaintiff’s signature line, and below the space for insertion of the total price
of the Equipment, the SOCs included the following text:

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THIS ORDER EXPRESSLY LIMITS BUYER’S ACCEPTANCE
TO THE TERMS OF THIS ORDER, INCLUDING THE TERMS
AND CONDITIONS PRINTED ON THE REVERSE SIDE
HEREOF. ANY ADDITIONAL OR DIFFERENT TERMS,
WHETHER CONTAINED IN BUYER’S FORMS OR
OTHERWISE PRESENTED BY BUYER, ARE REJECTED
UNLESS EXPRESSLY AGREED TO IN WRITING BY [Defendant]
CORPORATION.
The SOCs included on their reverse side a full page of boilerplate terms and
conditions of sale. The SOCs indicated the existence of the terms and conditions of
sale directly above the Plaintiff’s signature line, stating: “THE WARRANTY &
TERMS & CONDITIONS OF SALE COVERING THIS ORDER IS SET
FORTH ON THE REVERSE SIDE HEREOF.”
In addition to the pre-printed items stated above, the SOCs attached to the
Defendant’s Motion included hand-written entries by Plaintiff’s president. One
copy of the SOCs was executed by Plaintiff’s president, (doc. 6 Exs. B & D) and a
second was executed by Plaintiff’s Estimating Manager. (Id. at Exs. A & C.) None
of the SOCs included handwritten dates next to the signature; they did, however,
include the pre-printed date December 16, 2014. Other handwritten entries
included customer purchase order numbers and a “Total Price” that differed from
the preprinted sum of the itemized list of goods. (Id. at Exs. B & D.)
In addition to the SOCs that were executed and delivered to Pinnacle on
December 16, 2014, Plaintiffs also sent to Defendant certain Purchase Orders
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(“POs”). According to Defendant, it was not clear whether the POs were sent
before or after Plaintiff’s execution of the SOCs. Each PO stated that the
“Machine is purchased per Machine Sales Order Confirmation,” followed by an
order number corresponding to Defendant’s SOCs. (Doc. 6 Exs. E & F.) The POs
also included the following language:
Your acceptance of this order constitutes acceptance of all terms and
conditions on the face hereof and which are displayed at our website at
www.micorind.com. These terms are incorporated fully herein and
shall prevail over any and all inconsistent terms or conditions
contained in your quotation and/or acknowledgement. Different of
additional terms or conditions in your quotation and/or
acknowledgment are hereby rejected and your acceptance of this order
is expressly limited to the specific terms and conditions contained
herein.
(Id.) While these POs are signed by representatives of Plaintiff, they are not signed
by Defendant. In fact, Defendant did not sign any of the documents including
Plaintiff’s terms and conditions.
In addition to the SOCs, in the time after Plaintiff’s signing of the SOC,
Plaintiff also signed a number of other documents that included Defendant’s terms
and conditions of sale that mirror the limitations of the terms of a buyer’s
acceptance as listed above. This includes installation forms, (id. Exs. Q & R), and
security agreements for the Equipment (id. Exs. O & P). These documents include

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an identical copy of Defendant’s terms and conditions of sale that were included
with their SOCs.
c. PLAINTIFF’S MOTION TO REMAND
In its Motion to Remand, Plaintiff does not dispute Defendant’s recitation of
the contents of the SOCs and POs or that on December 16, 2014, Defendant
provided Plaintiff with the SOCs. Thus the parties agree that the first documents
exchanged between the parties were the SOCs. Plaintiff, however, states that it did
not sign the SOCs or send them to Pinnacle on December 16, 2014. Plaintiff admits
that it sent the POs to Defendant on either December 16, 2014 (doc. 18 at 3) or
December 17, 2014 (doc. 18 at 5). But only after Plaintiff sent the POs to Defendant
did Plaintiff sign the SOCs:
Only after [Plaintiff] issued its PO’s to [Defendant] were [Plaintiff]’s
PO numbers for each piece of the equipment, and the total price to be
paid for each piece of equipment “as shown on [Plaintiff]’s PO’s”,
hand-written into the blank spaces on [Defendant]’s documents titled
“Sales Order Confirmations”.
(Doc. 18 at 7.) Plaintiff likewise corroborates Defendant by stating that following
receipt of Plaintiff’s POs, Defendant issued a number of other documents,
including the Installation Forms and Security Agreements, which the Plaintiff’s
representatives signed.
d. PLAINTIFF’S MOTION TO STRIKE
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In its response to Defendant’s Motion to Dismiss for Forum Non Conveniens
or to Transfer, Plaintiff pointed out that Defendant failed to attach the affidavit of
David Kennedy (the “Kennedy Affidavit”) referred to throughout Defendant’s
Motion as a basis to authenticate the over 55 exhibits attached to its Motion to
Dismiss for Forum Non Conveniens or to Transfer. (Doc. 13 at 4.) Plaintiff devoted
multiple pages in its Response arguing that Defendant’s “Undisputed Facts”
section of its brief as well as Defendant’s exhibits should be struck for lack of
authentication. (Id. at 12.) Upon reception of Plaintiff’s Response, Defendant filed
the missing Kennedy Affidavit, stating that it was “inadvertently omitted . . . due
to the voluminous attachments to Defendant’s Motion.” (Doc. 14 at 1.) The
Kennedy Affidavit had been signed and notarized four days before Defendant filed
its Motion to Dismiss for Forum Non Conviens or Transfer. Plaintiff responded to
the filing of Defendant’s omitted exhibit with a formal Motion to Strike, (doc. 15),
arguing that Plaintiff had only been privy to the exhibit after filing its response and
that it “is highly prejudiced by a late and after-the-fact filing of said affidavit by
[Defendant], when it is the crux of [Defendant’s] motion.” (Doc. 15 at 2.)
Plaintiff’s Motion to Strike is an attempt to prevail on a technicality rather
than address the substance of Defendant’s motions. Given the voluminous
attachments to Defendant’s motion, it is understandable that Defendant failed to
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attach the affidavit—there is no tactical advantage that Defendant would gain from
doing so considering the contents of that affidavit are quoted verbatim throughout
Defendant’s Motion.
Plaintiff does not detail any attempts to procure the Kennedy Affidavit prior
to filing the Motion to Strike, and it appears that Plaintiff instead opted to file its
Response under the assumption that it could not simply contact Defendant to notify
it of its omission and receive the missing exhibit. Plaintiff’s argument that
Defendant’s exhibits and undisputed facts should be struck is especially puzzling
considering that Plaintiff relies on the same documents in its own Motion that it
argues should be struck from Defendant’s motion. Because Plaintiff has not shown
how it is prejudiced by Defendant’s late filing, its Motion to Strike is DENIED.
II.

STANDARD OF REVIEW FOR THE PARTIES’ MOTIONS
a. Standard of Review for Defendant’s Motion to Dismiss for
Forum Non Conveniens or to Transfer

“When a court ‘treats [a] motion as having been brought under Rule 12(b),
then it is subject to the rules and practices applicable to the most analogous Rule
12(b) motion.’” Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) (quoting 5C
Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE

AND

PROCEDURE

§ 1360 at 91 (3d ed. 2004)). Defendant seeks dismissal of Plaintiff’s Complaint
under the doctrine of forum non conviens or the transfer of the action under 28
Page 9 of 29

U.S.C. § 1404. While Defendant has made references to a 12(c) standard in its
motion, the proper standard for Defendant’s challenge of venue is brought under
12(b)(3). Id.
When reviewing a challenge to venue, the Court accepts the allegations of
the Complaint as true, to the extent they are uncontroverted by properly submitted
evidence. Estate of Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233, 1239 (11th
Cir. 2012). The Court may make factual findings necessary to resolve motions for
improper venue, as long as the resolution of the factual disputes raised under Rule
12(b)(3) do not amount to an adjudication on the merits of the case. Bryant, 530
F.3d at 1376 (citing Murphy v. Schneider National, Inc., 362 F.3d 1133, 1139-40 (11th
Cir. 2004)).
If adjudication of the Rule 12(b)(3) motion does not reach the merits of the
case, the Court should take “the facts of the complaint as true,” but only “to the
extent they are uncontroverted by defendant[’s] affidavits.” Estate of Myhra, 695
F.3d at 1239 (quoting Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th
Cir.1990) (internal quotation marks omitted)). When the parties submit conflicting
affidavits, the court, in the absence of an evidentiary hearing, “is inclined to give
greater weight to the plaintiff’s version of the jurisdictional facts and to construe
such facts in the light most favorable to the plaintiff.” Id. (quoting Thomas Indus.,
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Inc., 896 F.2d at 1355). “In sum, Rule 12(b)(3) is a somewhat unique context of
dismissal in which [the Court] consciously look[s] beyond the mere allegations of a
complaint, and, although [the Court] continue[s] to favor the plaintiff’s facts in the
context of any actual evidentiary dispute, [it] do[es] not view the allegations of the
complaint as the exclusive basis for decision.” Id. (citations omitted).
b. PLAINTIFF’S MOTION TO REMAND
A defendant may remove a case to federal court pursuant to 28 U.S.C.
§ 1446. Removal jurisdiction exists when the district court would have had original
jurisdiction over the action. 28 U.S.C. § 1441(a); Darden v. Ford Consumer Fin. Co.,
Inc., 200 F.3d 753, 755 (11th Cir. 2000). Once the case is removed, the plaintiff may
move to remand the case to state court for lack of subject matter jurisdiction at any
time. 28 U.S.C. § 1447(c). The plaintiff may also move to remand by challenging
“the propriety of the removal itself, whether that challenge be on the basis of a
procedural defect or a lack of subject matter jurisdiction” within thirty days of
removal. Lowery v. Ala. Power Co., 483 F.3d 1184, 1213 n.64 (11th Cir. 2007)
(emphasis in original); 28 U.S.C. § 1447(c). In either case, the party seeking to
invoke federal jurisdiction bears the burden of proving proper federal jurisdiction.
Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002). Conclusory
allegations, without establishing the underlying facts supporting such assertions,
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are insufficient. Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319-20 (11th Cir.
2001). Factual allegations supported with evidence may be “combined with
reasonable deductions, reasonable inferences, or other reasonable extrapolations”
to establish federal jurisdiction. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 774,
754 (11th Cir. 2010). Defendants may “introduce their own affidavits, declarations,
or other documents” in support if that party sought to remove pursuant to the first
paragraph of 28 U.S.C. § 1446(b). Id. at 755. All uncertainties concerning removal
jurisdiction are to be resolved in favor of remand. Russell Corp. v. Am. Home
Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citing Burns v. Windsor Ins.
Cor., 31 F.3d 1092, 1095 (11th Cir. 1994)).
III.

JURISDICTION

The Court exercises subject matter jurisdiction pursuant to 28 U.S.C.
§ 1332(a). Plaintiff is an Alabama corporation headquartered in Alabama.
Defendant is a New York Corporation with its principal place of business in
Kentucky. The parties are thus diverse. Plaintiff seeks compensatory damages for
the defective Equipment it purchased from Defendant. Because Plaintiff claims
that the Equipment still does not function, and the Equipment was purchased for
$1,075,000.00, the amount in controversy exceeds $75,000. Neither party has
contested personal jurisdiction.
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Plaintiff brings state-law claims of negligence, wantoness, breach of contract,
breach of express warranties, breach of implied warranty of merchantability and
fitness for a particular purpose, as well as the Alabama Extended Manufacturers’
Liability Doctrine. (Doc. 1 Ex. 1 at 20-59.) These claims are based upon Plaintiff’s
purchase and Defendant’s installation of the Equipment at Plaintiff’s facility
located in Morgan County, Alabama, which is located in the Northern District of
Alabama. Therefore, venue is proper for the purposes of consideration of the
parties’ current motions. 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.”).
IV.

Discussion

a. Contract Formation1

1

Defendant argues that the Court should apply Kentucky law under the choice-of-law clause in
its SOCs. This choice-of-law clause only applies if the terms of Defendant’s SOCs are part of the
parties’ contract. Applying “the [SOCs’] 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.” AEP Indus., Inc. v. Thiele Techs., Inc., No. 2:15-CV-315-WKW, 2016 WL 1230010,
at *3 n.2 (M.D. Ala. Mar. 29, 2016) (quoting Schnabel v. Trilegiant Corp., 697 F.3d 110, 119 (2d
Cir. 2012)). Because the Court cannot apply the choice-of-law clause until it determines that the
parties have a valid contract, it applies Alabama law to determine whether a contract exists
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The Court must determine the terms of the contract between the parties.
Article 2 of the UCC, as codified in Ala. Code § 7-2-101 et seq. and Ky. Rev. Stat.
Ann. § 355.2-101 et. seq., applies to “transactions in goods.” Ala. Code § 7-2-102;
Ky. Rev. Stat. Ann. § 355.2-102. Because the Equipment undoubtedly falls within
the definition of a “good,” Ala. Code § 7-2-105(1); Ky. Rev. Stat. Ann. § 355.2105, the Court determines whether the contract was formed according to Article 2.
The Court looks first to whether Defendant’s SOCs constitute an offer,
which Plaintiff accepted either (1) by signing the SOCs and sending them to
Pinnacle or (2) by sending its POs back to Defendant. While there is no binding
authority under Alabama law on whether a sales order contract or price quotation
can constitute an offer, courts have recognized that:
between the parties. St. Paul Fire & Marine Ins. Co. v. ERA Oxford Realty Co. Greystone, LLC, 572
F.3d 893, 895 n.1 (11th Cir. 2009) (“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 where the contract was formed.”(quoting Cherokee Ins. Co., Inc. v. Sanches, 975 So.2d 287,
292 (Ala.2007))). The lex loci contractus principle is likewise no more insightful, as the parties
dispute the time and place where the contract was formed. Ultimately, the Court need not
resolve the choice-of-law question because both Kentucky and Alabama have adopted the
Uniform Commercial Code (“UCC”), which governs the sale of goods, including the
Equipment. See Scott v. Prudential Sec., Inc., 141 F.3d 1007, 1012 (11th Cir. 1998) (“We, however,
need not resolve this choice of law problem because the relevant law in both states is essentially
in harmony.”). The Court, therefore, will apply the Uniform Commercial Code and will include
citations to the relevant provisions of both the Alabama and Kentucky codes.

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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.
AEP Indus., Inc. v. Thiele Techs., Inc., No. 2:15-CV-315-WKW, 2016 WL 1230010,
at *4 (M.D. Ala. Mar. 29, 2016) (quoting Bergquist Co. v. Sunroc Corp., 777 F. Supp.
1236, 1248-49 (E.D. Pa. 1991) (collecting cases from numerous jurisdictions)); see
also Jim Walter Res., Inc. v. Downard Longwall, Inc., No. 7:05-CV-01338-LSC, 2008
WL 11380012, at *6 (N.D. Ala. Jan. 16, 2008) (“In determining whether a price
quote constitutes an offer, attention is given to whether ‘the purported offer uses
words of offer, clearly expresses a quantity, or otherwise signifies to the recipient
that a bargain may be sealed.’” (quoting 1 WILLISTON ON CONTRACTS § 4:7 (4th
ed. 2007))). The SOCs included the conspicuous statements showing the SOCs
were an offer. (See, e.g., Doc. 6 Ex. 1 (“Customer acknowledges that Distributor
will order the goods from [Defendant] by submission of a copy of this [SOC] to
[Defendant]”);

id.

(“THIS

ORDER

EXPRESSLY

LIMITS

BUYER’S

ACCEPTANCE TO THE TERMS OF THIS ORDER”).) The SOCs likewise
contain quantity amounts, total price, shipping address and delivery date. (Id.) Nor
do the parties dispute that the SOCs constituted an offer. (See Doc. 18 at 3 (“[The
Page 15 of 29

SOCs] contained a detailed description of the . . . equipment and accessories
[Plaintiff] was interested in purchasing, and outlined [Defendant’s] offers to sell
[Defendant’s] equipment and the accessories to [Plaintiff] on December 16,
2014.”.) The Court thus easily concludes the SOCs were offers to contract.
Although it is clear to the Court that Defendant’s SOCs constituted an offer,
determining whether Plaintiff’s POs constitute acceptance of Defendant’s offer is a
trickier task. Accepting the offer embodied in Defendant’s SOCs can occur under
Ala. Code § 2-206 “in any manner and by any medium reasonable in the
circumstances.” See also Ky. Rev. Stat. Ann. § 355.2-206 (same). One
“reasonable” way for Plaintiff to accept Defendant’s offer contained in the SOCs
occurred under Defendant’s disputed version of the facts: Plaintiff’s representative
signed the SOCs and sent them to Pinnacle. Plaintiff readily admits its
representatives signed the SOCs, but the parties dispute when the signing
occurred. Because the Court gives greater weight to the Plaintiff’s facts and
construes them in the light most favorable to Plaintiff, it assumes, as Plaintiff has
alleged, that the SOCs were not signed until after Plaintiff sent the POs to
Defendant.
A second way for Plaintiff to accept Defendant’s offer embodied in the SOCs
was by sending its POs back to Defendant. Where the parties exchanged their own
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standardized forms during contract negotiations, the Court turns to the so-called
“battle of the forms” provision of Article 2, Ala. Code § 7-2-207, to determine
whether a contract was formed when Plaintiff sent its POs to Defendant, and before
its representatives signed the SOCs. See also Ky. Rev. Stat. Ann. § 355.2-207
(same). The battle of the forms provision is intended to deal with a situation
“where an agreement has been reached either orally or by informal correspondence
between the parties and is followed by one or both of the parties sending formal
memoranda embodying the terms so far as agreed upon and adding terms not
discussed.” Ala. Code § 7-2-207 cmt. 1. Ala. Code § 7-2-207 “alters the ‘mirror’
rule of common law, [which] require[es] the terms of the offer and acceptance to be
identical, or to mirror each other.” Burbic Contracting Co. v. Cement Asbestos Prod.
Co., 409 So. 2d 1, 4 (Ala. 1982). Section 7-2-207(1) thus states that:
[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.
Ala. Code § 7-2-207 (emphasis added); see also Ky. Rev. Stat. Ann. § 355.2-207
(same). This section thus recognizes that in a commercial setting a contract can be
formed even though the terms of an offer and acceptance do not mirror each other.

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The parties do not dispute that after receiving Defendant’s SOCs Plaintiff
sent its POs back to Defendant. It would appear that under Ala. Code § 7-2-207
there was an offer, Defendant’s SOCs, and an acceptance, Plaintiff’s POs. Plaintiff
attempts to sidestep the issue, by unilaterally declaring “[Plaintiff] did not accept
the offers by executing [Defendant’s] [SOC] forms.” (Doc. 18 at 3.) This argument
ignores the context in which the Plaintiff sent the POs to Defendant—directly after
receiving the SOCs. The POs themselves included the statement that “[the
Equipment] is purchased per Machine [SOC].” (Doc. 8 Ex. 1 at 1.) Thus the POs
directly refer to the SOCs and confirm that Plaintiff intends to purchase the
Equipment. Even though the terms contained in the SOCs and POs differ, under
Ala. Code § 7-2-207 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.” See also Ky. Rev. Stat. Ann. § 355.2-207
(same).
That Plaintiff’s POs constitute a valid acceptance does not end the inquiry,
as the second clause of the battle-of-the forms section limits acceptance in a
confirmatory writing where “acceptance [of the offer] is expressly made
conditional on assent to the additional or different terms.” Ala. Code § 7-2-207(1);
Ky. Rev. Stat. Ann. § 355.2-207(1) (same). If Plaintiff expressly conditioned its
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acceptance of the Defendant’s SOCs on the Defendant’s assent to the different
terms in the POs, then there would be no contract. While no Alabama Court has
delved into the construction of the second part of §7-2-207, other courts in this
Circuit have interpreted the limiting clause or identical state-law provisions strictly.
See Jim Walter Res., Inc. v. Downard Longwall, Inc., No. 7:05-CV-01338-LSC, 2008
WL 11380012, at *8 (N.D. Ala. Jan. 16, 2008) (“[t]hat the acceptance is predicated
on the offeror’s assent must be ‘directly and distinctly stated or expressed rather
than implied or left to inference’ ” (quoting Dorton v. Collins & Aikman Corp., 453
F.2d 1161, 1168 (6th Cir. 1972))); Option Wireless, Ltd. v. OpenPeak, Inc., No. 1280165-CIV, 2012 WL 6045936, at *6 (S.D. Fla. Dec. 5, 2012) (a “seller’s invoice is
not deemed ‘expressly conditional’ under § 2–207 merely because its terms do not
match the terms of the buyer’s offer. Rather, to be deemed ‘expressly conditional,’
the seller’s invoice must place the buyer on unambiguous notice that the invoice is
a mere counteroffer.” (quoting JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47, 53 (1st
Cir. 1999))). Kentucky courts likewise have construed the “express conditioning”
requirement strictly in the past. See Consol. Aluminum Corp. v. Krieger, 710 S.W.2d
869, 872 (Ky. Ct. App. 1986).
Examples of provisions which courts have held expressly conditioned
acceptance on the offeror’s assent to the additional or different terms, include:
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“Seller’s acceptance of Buyer’s order and shipments made pursuant thereto are
subject to and expressly conditioned upon Buyer’s acceptance of the terms and conditions
herein. . . . ,” Coastal & Native Plant Specialties, Inc. v. Engineered Textile Prod., Inc.,
139 F. Supp. 2d 1326, 1334 (N.D. Fla. 2001) (emphasis added), and “Seller’s
acceptance of any offer by Purchaser to purchase the Products is expressly
conditional upon the Purchaser’s assent to all the terms and conditions herein, including
any terms additional to or different from those contained in the offer to purchase,”
PCS Nitrogen Fertilizer, L.P. v. Christy Refractories, L.L.C., 225 F.3d 974, 979 (8th
Cir. 2000) (emphasis added). An example of a provision which does not prevent
contract formation under the battle-of-the-forms provision includes: “Execution of
this agreement constitutes an acceptance expressly limited to the terms herein and any
additional or different terms suggested by Seller are hereby rejected unless expressly agreed
to in writing by Buyer.” Westinghouse Elec. Corp. v. Nielsons, Inc., 647 F. Supp. 896,
898 (D. Colo. 1986) (emphasis added).
Plaintiff’s POs do not contain any provision that expressly conditions
acceptance on Defendant’s assent to additional or different terms. The closest the
POs come are in two clauses that state: “Different or additional terms or conditions
in your quotation and/or acknowledgement are hereby rejected and your
acceptance of this order is expressly limited to the specific terms and conditions
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contained herein.” (Doc. 8 Ex. 1 at 1.) The POs likewise refer to the terms and
conditions displayed at www.micorind.com, which include the following
“DIFFERENT OR ADDITIONAL TERMS OR SELLER’S RESPONSES ARE
HEREBY REJECTED AND NO PRIOR OR SUBSEQUENT CONDUCT OF
[Plaintiff] SHALL BE DEEMED TO BE AN ACCEPTANCE OF DIFFERENT
OR ADDITIONAL TERMS.” 2 (Doc. 8 Ex. 1 at 3.) Neither of these terms contain
a clear, express conditioning of acceptance on Defendant’s assent to Plaintiff’s
different terms. Instead, they purport to only accept terms that are consistent with
the terms or conditions in Plaintiff’s POs. Expressly conditioning acceptance
amounts to the offeree saying there is no deal if the offeror does not assent to the
additional terms. Dorton, 453 F.2d at 1168 (“we believe that [Section 2-207] was
intended to apply only to an acceptance which clearly reveals that the offeree is
unwilling to proceed with the transaction unless he is assured of the offeror's assent
to the additional or different terms therein”). What Defendant has done here is to
recognize the existence of a contract, but dictate what terms are or are not part of
that contract. Thus, the Court holds that Defendant’s SOCs constituted an offer,
Jim Walter Res., Inc. v. Downard Longwall, Inc., No. 7:05-CV-01338-LSC, 2008 WL 11380012, at
*6 (N.D. Ala. Jan. 16, 2008) (“A written contract “may incorporate the terms of another
document by reference.” (quoting Cavalier Mfg., Inc. v. Clarke, 862 So. 2d 634, 640 (Ala.
2003))).
2

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which the Plaintiff accepted by sending the POs back to Defendant under Ala.
Code § 7-2-207 and Ky. Rev. Stat. Ann. § 355.2-207.
b. CONTRACT MODIFICATION
That a contract exists between the parties does not end the Court’s inquiry,
as it must determine which, if either, of the parties’ competing forum-selection
clauses govern. If there were no other documents exchanged between the parties
outside of the SOCs and POs, the Court would interpret those documents’
conflicting clauses under Ala. Code § 7-2-207(2). See Ala. Code § 7-2-207 cmt. 6
(“Where clauses on confirming forms sent by both parties conflict each party must
be assumed to object to a clause of the other conflicting with one on the
confirmation sent by himself. As a result the requirement that there be notice of
objection which is found in subsection (2) is satisfied and the conflicting terms do
not become a part of the contract.”). Under Plaintiff’s version of the facts its
representatives signed the Defendant’s SOCs, Security Agreement, and
Installation Forms following Plaintiff’s mailing of its POs to Defendant—which the
Court determined to be an acceptance of Defendant’s offer. The SOCs, Security
Agreement, and Installation Forms contained Defendant’s terms and conditions of
sale. The Court must therefore determine whether Plaintiff’s signing of those
documents, after forming a contract by sending Defendant its POs, constitutes a
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modification of the terms of the original contract between the parties and an
adoption of the Defendant’s terms and conditions of sale.
Modification of a contract is governed by Ala. Code § 7-2-209. See also Ky.
Rev. Stat. Ann. § 355.2-209 (same). Two subsections of § 7-2-209 are pertinent to
the parties’ contract dispute. First, subsection (1) states an agreement modifying an
existing contract does not need additional consideration to be binding. Ala. Code
§ 7-2-209(1); Ky. Rev. Stat. Ann. § 355.2-209(1) (same). Second, under subsection
(2) the method whereby a party can effect modifications is limited:
A signed agreement which excludes modification or rescission except
by a signed writing cannot be otherwise modified or rescinded, but
except as between merchants such a requirement on a form supplied
by the merchant must be separately signed by the other party.
Ala. Code § 7-2-209(2); Ky. Rev. Stat. Ann. § 355.2-209(2) (same). Subsection (2),
however, only contemplates modifications in instances where the parties have
formed a contract by signed agreement. Here, the parties have formed a contract
under the battle-of-the-forms provision of Article 2 under both Alabama and
Kentucky law, and subsection (2) does not affect the ability of the parties to modify
their contract.
The Court thus examines the conflicting clauses in the parties’ forms
concerning modification. The clause in Defendant’s terms and conditions of sale
concerning modifications states:
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No statements subsequent to the acceptance of the Agreement and
these terms and conditions shall be binding upon [Defendant], nor
shall the Agreement or such terms or conditions be amended or
modified, unless consented to in writing by a duly authorized officer of
[Defendant] in a document referencing these terms and conditions.
(Doc. 6 Exs. A, B, C, D). Plaintiff’s terms and conditions likewise state:
No modification of any part hereof shall be binding unless in writing
and signed below.
(Doc. 8 Ex. 1 at 3.) The dueling modification clauses contained in the SOCs and
POs both attempt to prohibit modification without a signed writing assenting to the
modification.
The only signed documents between the parties were those signed by
Plaintiff. After Plaintiff sent its POs to Defendant, and in doing so forming a
contract, Plaintiff signed the SOCs, Security Agreements, and Installation Forms.
By signing the documents, Plaintiff assented to their terms and conditions of sale,
which included a clause modifying existing agreements between the parties:
ANY ADDITIONAL, INCONSISTENT OR DIFFERENT TERMS
AND CONDITIONS CONTAINED IN BUYER’S PURCHASE
ORDER OR OTHER DOCUMENTS SUBMITTED BY BUYER
TO MAZAK AT ANY TIME, WHETHER BEFORE OR AFTER
THE DATE HEREOF, ARE HEREBY EXPRESSLY REJECTED
BY
[Defendant].
[Plaintiff]
ACKNOWLEDGES
THAT,
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN ITS PURCHASE ORDER OR OTHER
DOCUMENTS, RECEIPT AND ACCEPTANCE BY [Plaintiff] OF
[Defendant’s]
PRODUCTS
SHALL
CONSTITUTE
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ACCEPTANCE
CONDITIONS.

BY

[Plaintiff]

OF

THESE

TERMS

AND

(Doc. 6 Exs. A, B, C, D, O, P, Q, & R.) According to the clause assented to by the
Plaintiff, “receipt and acceptance” of the Equipment by Plaintiff constitutes
acceptance of Defendant’s terms and conditions of sale, including Defendant’s
forum-selection clause. Thus, the Court holds that the terms and conditions
attached to Defendant’s SOCs, Security Agreement, and Installation Forms,
signed by Plaintiff, govern the parties’ choice-of-forum dispute.
c.

TRANSFER UNDER § 1404(A)

Defendant argues the Court should transfer this action according to the
forum-selection clause stating all disputes in the agreement must be brought in the
Eastern District of Kentucky. A “forum-selection clause does not render venue in a
court ‘wrong’ or ‘improper’ under statutes governing venue in federal courts.”
Atl. Marine, 134 S. Ct. at 579. Nonetheless the clause may be enforced through a
motion to transfer for forum non conveniens under § 1404(a). Id. at 579-80 (“Section
1404(a) is merely a codification of the doctrine of forum non conveniens for the
subset of cases in which the transferee forum is within the federal court system; in
such cases, Congress has replaced the traditional remedy of outright dismissal with
transfer.”). Section 1404(a) states:

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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). “In the typical case not involving a forum-selection clause, a
district court considering a § 1404(a) motion (or a forum non conveniens motion)
must evaluate both the convenience of the parties and various public-interest
considerations.” Atl. Marine, 134 S. Ct. at 581. Factors relating to the parties’
private interests include:
relative ease of access to sources of proof; availability of compulsory
process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view of premises, if
view would be appropriate to the action; and all other practical
problems that make trial of a case easy, expeditious and inexpensive.
Id. at 581 n.6 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, n. 6 (1981)
(internal quotation marks omitted)). Public-interest factors may include:
the administrative difficulties flowing from court congestion; the local
interest in having localized controversies decided at home; [and] the
interest in having the trial of a diversity case in a forum that is at home
with the law.
(Id. (quoting Piper, 454 U.S. at 241 n.6 (internal quotation marks omitted)). The
Court must also give some weight to the plaintiffs’ choice of forum. Id.
“The calculus changes, however, when the parties’ contract contains a valid
forum-selection clause, which ‘represents the parties’ agreement as to the most
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proper forum.’ Id. (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 31 (1988). A
valid forum-selection clause protects the parties’ legitimate expectations and
furthers vital interests of the judicial system. Id. “For that reason, and because the
overarching consideration under § 1404(a) is whether a transfer would promote
‘the interest of justice,’ ‘a valid forum-selection clause [should be] given
controlling weight in all but the most exceptional cases.’” Id. (quoting Steward
Org., 487 U.S. at 31); see also Stiles v. Bankers Healthcare Grp., Inc., 637 F. App’x
556, 562 (11th Cir. 2016) (“‘Only under extraordinary circumstances unrelated to
the convenience of the parties’ should a court decline to enforce a forum-selection
clause.” (quoting Atl. Marine, 134 S. Ct. at 581)). If the Court finds that the parties
have agreed to a valid forum selection clause, the Court must adjust its 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. . . .
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Third, when a party bound by a forum-selection clause flouts its
contractual obligation and files suit in a different forum, a § 1404(a)
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. . . .
Id. at 581-82 (citations omitted). “Consideration of whether to enforce a forum
selection clause in a diversity jurisdiction case is governed by federal law, under 28
U.S.C. § 1404(a) (1982), not state law.” P & S Bus. Machines, Inc. v. Canon USA,
Inc., 331 F.3d 804, 807 (11th Cir. 2003) (citing Stewart Org., Inc. v. Ricoh Corp., 487
U.S. 22, 28–29 (1988)). The burden lies on Plaintiff as the party opposing
enforcement of the forum-selection clause. Id.
Because there is a valid forum-selection clause, the Court will only examine
the public factors as stated in Atlantic Marine to determine whether to transfer this
case to the appropriate venue in Kentucky. 134 S. Ct. at 581-82. Those factors
include administrative difficulties flowing from court congestion and local interest
in having localized controversies decided at home. Id. at 581. Here, there are no
public factors that properly present a barrier to transfer. No significant court
congestion will occur from the transfer of a single case to the Eastern District of
Kentucky. Each party was located in their respective states during contract
negotiations and subsequent acts, thus there are mitigating local interests in having
the dispute settled in Kentucky or Alabama. Because the “interest of justice” is
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ultimately served by holding the parties to their bargain, id. at 583, and no
extraordinary circumstances prevent enforcement of the forum-selection clause,
the Court shall transfer this action to the Eastern District Kentucky.
V.

Conclusion

For the reasons discussed above, Defendant’s Motion to Dismiss for Forum
Non Conveniens or to Transfer (Docs. 5 & 6) is due to be GRANTED and this case
transferred to the Eastern District of Kentucky. Plaintiff’s Motion to Remand and
Motion to Strike are due to be DENIED. An Order consistent with this Opinion is
to be entered simultaneously.
DONE and ORDERED on February 9, 2018.

_____________________________
L. Scott Coogler
United States District Judge
190485

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