Three Rivers Provider Network, Inc. v. Jett Integration et al

Filing 32

ORDER Granting 7 Motion to Dismiss or Transfer. This case shall be transferred to the Southern District of California. Signed by Judge James C. Mahan on 4/30/2014. (Copies have been distributed pursuant to the NEF - SLR)[Transferred from Nevada on 5/1/2014.]

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THREE RIVERS PROVIDER
NETWORK, INC.,

2:13-CV-1867 JCM (PAL)

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Plaintiff(s),

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v.

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JETT INTEGRATION and JEFF OTT,

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Defendant(s).

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ORDER

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Presently before the court is a motion to dismiss or transfer filed by defendants Jett

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Integration and Jeff Ott. (Doc. # 7). Plaintiff Three Rivers Provider Network, Inc. filed a response

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in opposition, (doc. # 11), and defendants filed a reply, (doc. # 13).

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On January 7, 2014, Magistrate Judge Leen ordered that discovery take place in this matter,

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limited to a two-hour deposition of defendant Ott regarding issues related to personal jurisdiction.

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(Doc. # 21). Following this limited discovery, defendants filed an addendum to their motion, (doc.

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# 28), and plaintiff filed a supplemental response, (doc. # 30).

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In this action, plaintiff alleges that it contracted with defendants to provide software security,

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and that defendants wrongfully used their access to plaintiff’s information to steal trade secrets.

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(Doc. # 1 p. 3). Furthermore, the complaint alleges that defendants over-billed plaintiff by more than

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$1.2 million during the course of the relationship. Id.

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...

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James C. Mahan
U.S. District Judge

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In the instant motion defendants argue, inter alia, that the court should dismiss or transfer

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this action based on improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28

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U.S.C. section 1406(a). In support of their motion, defendants refer to a clause of the Hosting

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Services Agreement between plaintiff and defendants which states, “Exclusive venue for all disputes

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arising out of the Agreement shall be in the state or federal courts in San Diego County, San Diego,

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and we each agree not to bring an action in any other venue.” (Doc. # 7 p. 24).

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Forum selection clauses in contracts are “presumptively valid; the party seeking to avoid a

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forum selection clause bears a ‘heavy burden’ to establish a ground upon which [the court] will

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conclude the clause is unenforceable.” Doe 1 v. AOL LLC, 552 F.3d 1077, 1083 (9th Cir. 2009)

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(citing M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 17 (1972)). A forum selection clause is

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unenforceable “if enforcement would contravene a strong public policy of the forum in which suit

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is brought, whether declared by statute or by judicial decision.” M/S Bremen, 407 U.S. at 15.

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Plaintiff argues the forum selection clause should not be enforced because plaintiff generally

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had a policy of requiring third-party vendors to “agree that any dispute arising between [plaintiff]

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and the vendor will be governed by Nevada law, with both parties binding themselves under Nevada

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law and to a forum adjudicating Nevada law.” (Doc. # 11 p. 2). Plaintiff also claims, without

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referring to any supporting documents, that defendants “were aware that any contractual dispute

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between a third party and [plaintiff] would be governed by Nevada law” and would be adjudicated

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in Nevada. (Doc. # 11 p. 8).

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Despite plaintiff’s claims that defendants were aware of its ‘established policy’ requiring that

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claims be brought in Nevada, plaintiff brings forth no evidence to put the validity of the forum

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selection clause in doubt. Plaintiff admits that the Hosting Services Agreement was signed by Todd

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Breeden, who was plaintiff’s authorized agent at the time the agreement was executed. Though

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plaintiff states that the forum selection clause at issue was never reviewed by its general counsel,

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(doc. # 30 p. 3), plaintiff presents no documentation to indicate that any forum other than California

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was ever discussed by the parties in this case. Thus, because the language of the forum selection

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clause is unambiguous, and plaintiff presents no evidence of fraud or undue influence and does not

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James C. Mahan
U.S. District Judge

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argue that it will face extreme difficulty in the selected forum, the court finds that the forum selection

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clause is valid and enforceable.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to

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dismiss or transfer (doc. # 7) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that in the interest of justice, this case be transferred to the

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Southern District of California.

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DATED April 30, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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