Mobile Aggregates Recycling Services, Inc. v. Collier Aggregates, LLC et al

Filing 24

OPINION AND ORDER granting 17 motion to dismiss Third Amended Complaint and the case is dismissed without prejudice for improper venue. The Clerk shall terminate all deadlines and motions as moot and close the file. Signed by Judge John E. Steele on 6/10/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MOBILE
AGGREGATES
SERVICES,
INC.,
a
corporation,

RECYCLING
Pennsylvania

Plaintiff,
vs.

Case No.

2:13-cv-42-FtM-29UAM

COLLIER AGGREGATES, LLC, a Florida
limited liability company, STREAK
INVESTMENTS, LLC, a Florida limited
liability company,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on defendants’ Motion to
Dismiss the Third Amended Complaint (Doc. #17) filed on March 18,
2013. Plaintiff filed a Response in Opposition (Doc. #18) on March
27, 2013.
Defendants seek dismissal of the Third Amended Complaint (Doc.
#15) for improper venue pursuant to Fed. R. Civ. P. 12(b)(3).

A

motion to dismiss for improper venue, including one based upon a
forum selection clause, may be brought pursuant to Federal Rule of
Civil Procedure 12(b)(3).

Lipcon v. Underwriters at Lloyd’s, 148

F.3d 1285, 1290 (11th Cir. 1998).

Although based on diversity

jurisdiction, the case is subject to the federal statute governing
venue, 28 U.S.C. § 1391.
F.2d

1066,

1068

(11th

Stewart Org., Inc. v. Ricoh Corp., 810
Cir.

1987).

At

this

stage

of

the

proceedings, the Court must accept all factual allegations in a

complaint as true and take them in the light most favorable to
plaintiff.

Erickson v. Pardus, 551 U.S. 89 (2007).

On or about August 31, 2011, the parties1 entered into an
Excavation Agreement Addendum (Doc.#15-3, Exh. C) containing a
“Venue and Dispute Resolution” under Article 11, which states as
follows:
The venue for any action brought to enforce the terms of
this contract or the rights and obligations of the
parties under applicable Florida law shall be in a court
of competent jurisdiction in Collier County, Florida
unless otherwise mutually agreed upon in writing by both
parties to this agreement.
(Doc. #15-3, Exh. C, pp. 4-5.)

Defendants argue that venue is only

proper in the state courts of Collier County, Florida because no
federal
Florida.

courthouse

is

physically

situated

in

Collier

County,

Collier County, Florida, is one of six counties within

the Fort Myers Division of the Middle District of Florida, but the
“place of holding court” is in Fort Myers (Lee County).
R. 1.02(b)(5); 28 U.S.C. § 89(b).

M.D. Fla.

Defendants rely upon the

unpublished Eleventh Circuit decision in Cornett v. Carrithers, 465
F. App’x 841 (11th Cir. 2012).

In Cornett, the district court

remanded the case based on the forum selection clause.

On appeal,

the Eleventh Circuit found that the clause “the venue shall be

1

Taking all allegations in the Third Amended Complaint as
true, Streak Investments is the parent corporation and managing
member of Streak Rocks I, LLC, a plurality owner of Collier
Aggregates, LLC (Collier Aggregates). The contract at issue was
entered into between plaintiff and Collier Aggregates. (Doc. #15,
¶¶ 17-18, 23.)
-2-

Suwannee County[,] Florida”2, was mandatory due to its use of
“shall”, and that removal was improper because the Middle District
of Florida district court located in the Jacksonville Division was
physically located outside of Suwannee County, Florida. Similarly,
in Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d
1269, 1271 (11th Cir. 2004), a published decision, the Eleventh
Circuit found that the forum selection clause “[v]enue shall be in
Broward County, Florida” required litigation in Broward County,
Florida, but that it was not specific to state or federal court
because there is a federal courthouse in that county.

See also

Alliance Health Group LLC v. Bridging Health Options LLC, 553 F.3d
397 (5th Cir. 2008).
This case was filed in Lee County, Florida and the forum
selection clause provides that venue “shall” be “in a court of
competent jurisdiction in Collier County” unless otherwise mutually
agreed upon.

(Doc. #15-3, p. 4)(emphasis added).

There is no

agreement otherwise, and the Court finds that “in Collier County”
is a mandatory geographic restriction.

The case was therefore

improperly filed in the federal court in Lee County, Florida.
Accordingly, it is now
ORDERED:
Defendants’ Motion to Dismiss the Third Amended Complaint
(Doc. #17) is GRANTED and the case is dismissed without prejudice

2

Id. at 842 (alteration in original).
-3-

for improper venue.

The Clerk shall terminate all deadlines and

motions as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2013.

Copies:
Counsel of record

-4-

10th

day of