James Dar, LLC v. OJCommerce, LLC et al

Filing 20

ORDER by Judge Dale S. Fischer DENYING Plaintiff's Motion to Remand (Dkt. #9 ) and GRANTING Defendants Motion to Transfer (Dkt. #10 ). (MD JS-6. Case Terminated.) See Order for specifics. (jp)

Case 0:21-cv-61901-RS Document 20 Entered on FLSD Docket 09/09/2021 Page 1 of 12
JS-6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JAMES DAR, LLC,
Plaintiff,

CV 21-5422 DSF (AGRx)

v.
OJCOMMERCE, LLC, et al.,
Defendants.

Order DENYING Plaintiff’s
Motion to Remand (Dkt. 9) and
GRANTING Defendants’ Motion
to Transfer (Dkt. 10)

Plaintiff James Dar, LLC moves to remand this action to the
California Superior Court for the County of Los Angeles. Dkt. 9
(Remand Mot.). Defendants OJCommerce, LLC and OJCommerce.com,
Inc. oppose. Dkt. 13 (Remand Opp’n). Defendants move for transfer to
the Southern District of Florida. Dkt. 10 (Transfer Mot.). James Dar
opposes. Dkt. 14 (Transfer Opp’n). The Court deems these matters
appropriate for decision without oral argument. See Fed. R. Civ. P. 78;
Local Rule 7-15. James Dar’s Motion to Remand is DENIED and
Defendants’ Motion to Transfer is GRANTED.
I. BACKGROUND
This is a contract dispute. On April 30, 2021, James Dar brought
suit in the Superior Court of California, County of Los Angeles to
collect $55,642.84 in unpaid invoices. Dkt. 1-1 (Compl.) ¶ 25. In
addition to requesting compensatory damages based on Defendants’
breach of contract, James Dar also requests pre-judgment interest, and
“attorney’s fees pursuant to the applicable agreement.” Compl., Prayer
for Relief. According to James Dar, on January 21, 2021, James Dar
sent Defendants a demand letter (the Demand Letter) notifying them
that James Dar was entitled to the invoice amount plus statutory

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prejudgment interest in the amount of $1,097.28 and legal fees already
incurred in the amount of $5,200. Compl. ¶¶ 25-26. According to
James Dar, as of January 21, 2021, the amount in controversy totaled
$61,940.12. Id. ¶ 26.
On July 2, 2021, Defendants removed the case pursuant to 28
U.S.C. sections 1441 and 1446, alleging complete diversity of
citizenship between the parties. Dkt. 1 (Notice of Removal).
On August 2, 2021, James Dar filed a motion for remand,
alleging Defendants failed to satisfy 28 U.S.C. section 1332’s amount in
controversy requirement. Remand Mot. at 5.
The next day, on August 3, 2021, Defendants filed a motion to
transfer the case to the United States District Court for the Southern
District of Florida. Transfer Mot. at 1. Defendants allege a January 7,
2020 E-Commerce Vendor Agreement (the Agreement or Vendor
Agreement) between James Dar and OJCommerce governs the dispute
and includes a mandatory forum selection clause requiring all disputes
to be litigated in Broward County, Florida. Id. at 2; see also dkts. 10-2
(Weiss Decl.) ¶¶ 4-5; 10-3 (Agreement) § 7.4.
II. LEGAL STANDARDS
A.

Motion to Remand

“Federal courts are courts of limited jurisdiction” and “possess
only that power authorized by [the] Constitution and statute . . . .”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A
defendant may remove an action to federal court if the federal court
could exercise subject matter jurisdiction over the action. 28 U.S.C.
§ 1441(a). “The removal statute is strictly construed against removal
jurisdiction” and “[t]he defendant bears the burden of establishing that
removal is proper.” Provincial Gov’t of Marinduque v. Placer Dome,
Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). If a defendant fails to meet
its burden of establishing the Court has subject matter jurisdiction, the
suit is remanded. 28 U.S.C. § 1447(c).

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B.

Motion to Transfer

“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 . . . must evaluate both the
convenience of the parties and various public-interest considerations.”
Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S.
49, 62 (2013). “The calculus changes, however, when the parties’
contract contains a valid forum-selection clause, which ‘represents the
parties’ agreement as to the most proper forum.’” Id. at 63 (quoting
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988)).
The presence of a valid forum-selection clause requires the
district courts to adjust the usual § 1404(a) analysis in three ways:
(1) “the plaintiff’s choice of forum merits no weight,” (2) the court
“should not consider arguments about the parties’ private interests,”
and (3) a “transfer of venue will not carry with it the original venue’s
choice of law rules.” Id. at 63-64. Consequently, “a district court may
consider arguments about public-interest factors only.” Id. at 64.
“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. at 64 n.6.
But courts should “ordinarily transfer the case to the forum specified in
that clause” and “[o]nly under extraordinary circumstances unrelated
to the convenience of the parties should a § 1404(a) motion be denied.”
Id. at 62.
III. DISCUSSION
A.

Motion to Remand

James Dar does not contest that it is a California limited liability
company, nor does it contest that Defendants are Florida limited
liability companies. Compl. ¶¶ 1-3. James Dar contends, however, that
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Defendants have failed to show the amount in controversy exceeds
$75,000. Remand Mot. at 3. The Court disagrees.
“[W]hen a complaint filed in state court alleges on its face an
amount in controversy sufficient to meet the federal jurisdictional
threshold, such requirement is presumptively satisfied unless it
appears to a ‘legal certainty’ that the plaintiff cannot actually recover
that amount.” Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699
(9th Cir. 2007) (citing Sanchez v. Monumental Life Ins. Co., 102 F.3d
398, 402 (9th Cir. 1996)). However, “where it is unclear or ambiguous
from the face of a state-court complaint whether the requisite amount
in controversy is pled . . . [t]he removing defendant bears the burden of
establishing, by a preponderance of the evidence, that the amount in
controversy exceeds” $75,000. Id. (quoting Sanchez, 102 F.3d at 404).
Here, the complaint alleges “the amount in controversy exceeds”
$25,000 and seeks $55,642.84 in unpaid invoices, prejudgment interest,
and attorney’s fees. Compl. ¶¶ 25-26; see also Prayer for Relief. James
Dar’s Demand Letter sought statutory prejudgment interest in the
amount of $1,097.28 and legal fees already incurred in the amount of
$5,200. Compl. ¶¶ 25-26. 1 According to James Dar, as of January 21,
2021, the amount in controversy totaled $61,940.12. Id. ¶ 26. Because
it is unclear from the face of the complaint whether the amount in
controversy is met, Defendants must show that it is met by a
preponderance of the evidence.

The Court overrules James Dar’s evidentiary objection to Defendants’
“reference to a [sic] reliance upon” the Demand Letter in their motion to
transfer and opposition to James Dar’s motion to remand. See Dkt. 17 at 2.
The Ninth Circuit has held that Federal Rule of Evidence 408 does not
prohibit the use of settlement offers in determining the amount in
controversy. See Cohn v. Petsmart, Inc., 281 F.3d 837,840 n.3 (9th Cir. 2002)
(“We reject the argument that Fed.R.Evid. 408 prohibits the use of settlement
offers in determining the amount in controversy.”). In any event, the Court
relied only on information provided by James Dar in its complaint.
1

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Defendants allege the $55,642.84 James Dar seeks for unpaid
invoices plus the attorney’s fees James Dar seeks satisfies the amount
in controversy. Notice of Removal ¶¶ 8-13; see also Remand Opp’n at 56. In support of their Notice of Removal, Defendants provide the
declaration of Shlomo Y. Hecht, who declares that based on Hecht’s
experience, the estimated attorney’s fees likely to be incurred by James
Dar for work after the Demand Letter was sent are $68,600, which
would bring the amount in controversy to $124,242.84. Dkt. 1-5 (Hecht
Decl.) ¶8. Hecht estimates that James Dar’s counsel will or has spent
10 hours consulting with their client; 2 hours drafting the complaint; 6
hours preparing written discovery; 6 hours responding to written
discovery; 6 hours engaging in activities related to discovery motions;
24 hours preparing for, taking, and defending depositions; 50 hours
preparing for trial; and 40 hours engaging in trial and post-trial
activities, for a total of 196 hours. Id. Hecht multiplied 196 hours by
counsel’s hourly rate of $350, totaling $68,600.
James Dar contends Defendants’ analysis of its expected
attorneys’ fees is unreasonable primarily because of the relationship
counsel has with James Dar, and contends the attorneys’ fees “will not
be near $20,000 for this matter.” Dkt. 16 (Remand Reply) at 3. James
Dar’s counsel declares that he agreed to work on this matter at a
reduced rate of $300 instead of its usual $500 per hour, and
(incorrectly) states Defendants failed to “discuss where they would even
get 196 hours from” for this “simple collections matter.” Remand Mot.
at 4; Remand Reply at 5.
Based on the $5,200 James Dar incurred as of the filing of the
complaint plus the $3,980 it requested in attorneys’ fees for bringing its
motion to remand, it appears counsel has spent at least 30.6 hours
litigating this case so far, which represents $9,180 in attorneys’ fees
($5,200 + $ 3,980 / $300 = 30.6 hours). See Compl.; see also Remand
Reply at 5. The attorneys’ fees incurred by James Dar to date plus the
$55,642.84 in disputed invoices already amounts to $64,822.84.
The Court concludes, based on extensive experience, that this
case cannot be prosecuted for $20,000 in fees. Counsel’s suggestion
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that he would “engage in a conversation” with his client as to how to
limit attorneys’ fees if the case became complex, Dkt. 9-1 (Rojani Decl.)
at ¶ 12, does not defeat jurisdiction – and seems unnecessary in light of
the claim that there is an attorneys fees clause in the contract. Prayer
for Relief. Spending 196 hours litigating this matter is, the Court
hopes, unlikely, but given the amount of time James Dar’s counsel has
already expended in bringing this suit and before the commencement of
discovery, discovery-related motions practice, motions for summary
judgment, and trial, the Court finds 98 hours is a very reasonable
estimate of the time needed to litigate this case. 2 See Brooks v. Ford
Motor Co., CV 20-302 DSF (KKx), 2020 WL 2731830, at *3 (C.D. Cal.
May 26, 2020) (“[T]he amount in controversy reflects the maximum
recovery the plaintiff could reasonably recover,” not simply the amount
plaintiff is most likely to recover) (quoting Arias v. Residence Inn by
Marriott, 936 F.3d 920, 927 (9th Cir. 2019)).
Defendants have met their burden to establish by a
preponderance of the evidence that the maximum potential attorneys’
fees plus the $55,642.92 in unpaid invoices exceeds $75,000 ($55,642.92
+ (98 hours x $300) = $85,042.92)). The motion for remand is DENIED.
B.

Motion to Transfer

Defendants allege this matter should be transferred to the
Southern District of Florida because the Agreement governing the
business relationship between Defendants and James Dar contains a
choice of law and forum selection clause:
All disputes regarding the construction, interpretation and
the parties’ obligations under this Vendor Agreement shall
be governed by the laws of the State of Florida . . . . The
venue and jurisdiction for the resolution of any such
disputes shall be exclusively in the State or Federal courts
located in the State of Florida, Broward County.
Notably, in Defendants’ fees calculation, they did not include fees related to
the pending motion to transfer and motion to remand.

2

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Agreement § 7.4 (emphasis added).
1.

The Agreement’s Forum Selection Clause is Valid
and Enforceable

Before engaging in the analytical framework under Atlantic
Marine, the Court must first determine whether the forum-selection
clause is valid and enforceable. See id. at 63 n.5 (“presuppos[ing] a
contractually valid forum-selection clause”). “A forum selection clause
is presumptively valid; the party seeking to avoid a forum selection
clause bears a ‘heavy burden’ to establish a ground” that renders the
clause unenforceable. Doe 1 v. AOL LLC, 552 F.3d 1077, 1083 (9th Cir.
2009) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17
(1972)). A forum-selection clause is controlling unless the plaintiff
makes a “strong showing that: (1) the clause is invalid due to ‘fraud or
overreaching,’ (2) ‘enforcement would contravene a strong public policy
of the forum in which suit is brought, whether declared by statute or by
judicial decision,’ or (3) ‘trial in the contractual forum will be so gravely
difficult and inconvenient that [the litigant] will for all practical
purposes be deprived of his day in court.’” Yei A. Sun v. Advanced
China Healthcare, Inc., 901 F.3d 1081, 1088 (9th Cir. 2018) (quoting
Bremen, 407 U.S. at 15, 18).
To establish the invalidity of the forum-selection clause due to
fraud or overreaching, James Dar must “show that the inclusion of that
clause in the contract was the product of fraud or coercion.” Peterson v.
Boeing Co., 715 F.3d 276, 280 (9th Cir. 2013). Overreaching includes
conduct short of fraud, involving “undue influence” or “overweening
bargaining power.” See Bremen, 407 U.S. at 12.
James Dar does not dispute the validity of the forum selection
clause contained in the Agreement. Instead it contends the forum
selection clause should not be enforced because it would be
“unreasonable and unjust” for four reasons: (1) Defendants breached
the Agreement they rely on to transfer the case to Florida; (2) the suit
is based on unpaid invoices that contain a California forum selection
clause; (3) Defendants “do business all over the country including

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California”; and (4) “this is a simple, straight forward collections case
that belongs in state court.” Transfer Opp’n at 2. The Court disagrees
with all four arguments.
First, James Dar’s argument that Defendants cannot invoke the
forum selection clause because Defendants “breached the Vendor
Agreement” is meritless. Transfer Opp’n at 3. Indeed, James Dar fails
to cite any supporting authority for its assertion and courts routinely
enforce a forum selection clause in a contract allegedly breached by the
party invoking the clause. See, e.g., Tanious v. Landstar Sys., Inc., No.
CV 19-1067 DSF (SHKx), 2020 WL 3166610, at *1, *4 (C.D. Cal. June
15, 2021) (enforcing forum selection clause contained in agreement
breached by the defendant); Friday & Cox, LLC v. FindLaw, Civ. Action
No. 180532, 2018 WL 3912829, at *6 (W.D. Pa. Aug. 16, 2018)
(“Plaintiff's reliance on its breach of contract allegations is not
sufficient to show the forum-selection clause is invalid.”); Beaubois v.
Accolade Constr. Grp., Inc., No. 15 Civ. 05302 (GBD), 2016 WL 94255,
at *1 (S.D.N.Y. Jan. 7, 2016) (rejecting the plaintiff’s reliance on the
principle “that a material breach discharges the non-breaching party
from future performance” and explaining courts “routinely enforce
forum-selection clauses against plaintiffs alleging breach of
contract[.]”).
Second, James Dar contends the invoices sent to Defendant each
contained their own forum selection clause stating the “forum for any
legal issues that may arise regarding the Invoices with be in
California.” Transfer Opp’n at 4. James Dar attaches a “Standard
Terms and Conditions of Sale (Order Acknowledgment/Invoice)” that
was purportedly “included on each of the Invoices sent to Defendants.”
Transfer Opp’n at 3; see also dkt. 14-1 (Acknowledgment). Defendants
respond, “there is no evidence that the supposed ‘relevant portion of the
invoices’ actually appeared on any of those sent to OJC or that OJC had
any knowledge of the ‘portion.’” Dkt. 15 (Transfer Reply) at 5. The
invoices submitted by Defendants in connection with their motion to
transfer do not include an Acknowledgment. See dkt. 10-6 (Invoices).
Nor is the Acknowledgment signed by or directed at Defendants. See
Acknowledgment.
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Between an Agreement that was negotiated and signed by James
Dar and a boilerplate Acknowledgment that may or may not have been
received or seen by Defendants, the Court finds the Agreement
controls. Plastoform Indus. Ltd. V. Monster LLC, No. 18-cv-02805YGR, 2018 WL 10562845 (N.D. Cal. Sept. 6, 2018) is persuasive. In
Plastoform, the parties entered into a manufacturing and supply
agreement in which the plaintiff would supply products to the
defendant. Id. at *1. The defendant issued purchase orders to the
plaintiff and the plaintiff sent a corresponding invoice and the goods to
the defendant. Id. The defendant argued the supply agreement
contained a binding arbitration clause while the plaintiff asserted the
purchase order contained a California choice of law and forum selection
clause. Id.
The court in Plastoform concluded the terms included in the
purchase orders did not supersede the supply agreement because (1)
any modifications were required to be signed by both parties and (2) the
supply agreement included a provision expressly rejecting the inclusion
of plaintiff’s boilerplate terms. Id. at *3. Similarly here, the
Agreement includes an “Entire Agreement” clause, which states the
Agreement “constitutes the entire agreement between the parties” and
“[a]ll changes to th[e] Vendor Agreement must be in writing and signed
by both parties.” Agreement § 8. James Dar’s Acknowledgment is
unsigned by either party and therefore, as in Plastoform, the
Agreement controls.
Further, the Vendor Agreement covers this dispute. James Dar
argues the forum selection clause contained in the Agreement is not
enforceable here because the “Vendor Agreement is simply not at issue
in this matter – that was the contracted how [sic] the parties would
interact with one another and it authorized James Dar to issue its own
invoices.” Transfer Opp’n at 3. The Court disagrees. The Agreement
negotiated and signed by James Dar states, “the parties desire to enter
into this Agreement to set forth the obligations and responsibilities of
each in connection with their contractual relationship.” Agreement at
1. Moreover, section 1.7 states, “OJCommerce agrees to pay Vendor for
Services rendered in the amount set forth after the receipt of a correct
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invoice from Vendor. OJCommerce will pay all undisputed invoice
amounts within 30 days of invoice date.” Agreement § 1.7. The
Agreement sets forth Defendants’ obligations to pay invoice amounts
within 30 days. This is, therefore, a dispute “regarding the
construction, interpretation and the parties’ obligations under this
Vendor Agreement,” id., and is governed by the Vendor Agreement.
James Dar’s third and fourth arguments are also unpersuasive.
Where, as here, the parties negotiated and signed an agreement
containing a Florida forum selection clause, it is irrelevant that
Defendants “do business all over the country including California” or
that in James Dar’s opinion, “this is a simple, straight forward
collections case that belongs in state court.” See Transfer Opp’n at 2, 78.
2.

Public Interest Factors

Having concluded that the forum selection is valid and
enforceable, the Court may consider only the public interest factors
enumerated in § 1404(a). Atl. Marine, 571 U.S. at 64. 3 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. at 62 n.6 (quoting Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). “Because those
factors will rarely defeat a transfer motion, the practical result is that
forum selection clauses should control except in unusual cases.” Id. at
64.
Court Congestion. Defendants claim “judges in the Southern
District of Florida undoubtedly bear the similar caseloads to those in
James Dar’s argument about its private interests, see Transfer Opp’n at 8,
has no place in this analysis and the Court therefore does not consider it. See
Sun, 901 F.3d at 1091 (“Where the parties have agreed to a forum-selection
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.’” (quoting Atl. Marine, 571 U.S. at 64)).
3

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this district and the districts take roughly the same amount of time to
resolve civil suit.” Transfer Reply at 9 (citing Tanious, 2020 WL
3166610, at *6). James Dar does not address court congestion.
Although statistics on this issue are publicly available, the Court
declines to do the parties’ work for them. This factor is neutral.
Familiarity with the Law. James Dar argues “[t]here can be
no doubt that this Court has a higher degree of familiarity with the
relevant California laws than the Florida District Court” and
“Plaintiff’s Complaint is based exclusively on California law, including
causes of action under California Civil Code, Business and Professions
Code, and California common law.” Transfer Opp’n at 6. Despite the
fact that it does not appear from the face of James Dar’s complaint that
it has included causes of action for anything other than common law
breach of contract, common count, and alter ego liability, Defendants
note the Agreement also contains a choice of law provision governing
the dispute. Transfer Mot. at 9. Regardless of whether California or
Florida law applies, “federal judges routinely apply the law of a State
other than the State in which they sit.” Atl. Marine, 571 U.S. at 67 .
James Dar identifies no “exceptionally arcane features” of California
contract law “that are likely to defy comprehension by a federal judge
sitting in [Florida].” Id. at 68. This factor does not weigh against
Defendants.
California’s Interest. James Dar raises California’s “strong
interest in ensuring that its citizens are not cheated by foreign
corporations doing business in [its] state.” Transfer Opp’n at 8.
Assuming this factor weighs against transfer, this limited interest is
not enough to tip the balance toward denial of Defendants’ motion.
In all, James Dar has failed to establish that this is an
“exceptional case” that defeats application of a valid forum selection
clause. See Atl. Marine, 571 U.S. at 64 (public interest factors “will
rarely defeat” a motion to transfer and therefore “forum-selection
clauses should control except in unusual circumstances”).

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IV. CONCLUSION
For the reasons set forth above, James Dar’s Motion to Remand is
DENIED and Defendants’ Motion to Transfer is GRANTED.
IT IS SO ORDERED.

Date: September 9, 2021

___________________________
Dale S. Fischer
United States District Judge

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