Sensify (US) Incv. Intelligent Telematics North America, IncCorporation
ORDER ON AMENDED MOTION TO DISMISSdenying as moot 9 Motion for Extension of Time to File Response/Reply/Answer All Defendants ; denying as moot 10 Motion to Dismiss; denying as moot 10 Motion for Discovery; granting 11 Motion to Dism iss. Closing Case. Motions Terminated: 11 Amended MOTION to Dismiss 1 Complaint, filed by Intelligent Telematics North America, Inc, 10 Defendant's MOTION to Dismiss 1 Complaint, and MOTION for Discover y Motion for Limited Discovery in Support Thereof filed by Intelligent Telematics North America, Inc, 9 Defendant's MOTION for Extension of Time to File Response/Reply/Answer as to 1 Complaint, DEFENDANT'S UNOPPOSED M OTION FOR EXTENSION OF TIME TO FILE RESPONSE TO PLAINTIFF'S COMPLAINT filed by Intelligent Telematics North America, Inc. Signed by Judge Marcia G. Cooke on 4/28/2017. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-24069-Civ-COOKE/TORRES
SENSIFY (US) INC., a Connecticut
INTELLIGENT TELEMATICS NORTH
AMERICA, INC., a Delaware
ORDER ON AMENDED MOTION TO DISMISS
This is a trade-secret misappropriation action involving a written agreement between
Defendant Intelligent Telematics North America, Inc. (“ITNA”), its parent company, and
its sister company on one side, and Plaintiff Sensify (US) Inc.’s (“Sensify”) parent company
on the other side (together, the “Signatories”). I have jurisdiction under 28 U.S.C. § 1332.
Pending is ITNA’s Amended Motion to Dismiss (ECF No. 11). I have reviewed the
Motion, the parties’ supporting and opposing briefs, the record, and the relevant legal
authorities. For the reasons that follow, I grant the Motion.
On February 22, 2016, the Signatories entered into an Intelligent Telematics Reseller
Agreement (“Agreement”). (ECF No. 11-1). The Agreement contains two provisions
pertinent to ITNA’s Motion. First, Section 10.g, the “Choice of Law and Forum” clause,
This Agreement will be governed by and construed under the laws of
England and Wales, without reference to conflict of laws principles.
The parties each consent to exclusive jurisdiction and venue in the
[United Kingdom] with respect to any dispute arising out of or relating to
this Agreement. The Parties waive all defenses of lack of personal
jurisdiction and forum non conveniens. Process may be served on either
party in the manner authorized by applicable law or court rule.
(ECF No. 11-1 ¶ 10.g) (emphasis added). Second, Section 10.h, the “Survivability” clause,
provides, “Sections 1, 4.g, 5, 6, 7, 8 and 9 will survive the expiration or termination of this
Agreement.” (Id. ¶ 10.h).
On September 3, 2016, ITNA terminated the Agreement. (ECF No. 14-1 ¶ 5 & Ex.
A). Roughly three weeks later, Sensify filed its Complaint in the United States District
Court for the Southern District of Florida. (ECF No. 1). In it, Sensify alleges that “[o]n
February 22, 2016, in furtherance of their business dealings, Sensify was required to disclose
to ITNA a list of proprietary and protected Sensify customers and accounts.” (Id. ¶ 15).
Although the Sensify does not specifically mention the Agreement, it asserts that “disclosure
of the customer identities at issue was covered by strict confidentiality provisions.” (Id. at
16). Sensify claims that ITNA breached those confidentiality provisions by “intentionally,
willfully, and improperly us[ing] Sensify’s confidential trade secret information to procure .
. . business for ITNA,” thus violating Florida’s Uniform Trade Secrets Act, Fla. Stat. ch.
688 (“FUTSA”). (Id. ¶ 20).
ITNA argues, inter alia, I should dismiss Sensify’s Complaint because the
Agreement’s forum-selection clause requires the parties to resolve disputes such as this one
in the United Kingdom, as was their intent when they negotiated the contract. See Liverpool
and London S.S. Prot. And Indem. Ass’n v. Islas Galapagos Turismo Y Vapores, C.A., 1997 WL
900841, at *1 (S.D. Fla. 1997) (“The scope and enforcement of a forum selection clause is a
matter of contract interpretation and the intent of the parties should govern the extent to
which the non-selected court may exercise its jurisdiction.”). Sensify counters that: (1)
enforcement of the forum-selection clause would violate public policy; (2) the forumselection clause did not survive ITNA’s termination of the Agreement; and (3) even if the
clause did survive, it does not apply to Sensify’s FUTSA claim.
First, mandatory forum-selection clauses, such as the one at issue here, are
“presumptively valid and enforceable” absent a “strong showing that enforcement would be
unfair or unreasonable under the circumstances.” Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d
1279, 1281 (11th Cir. 2009) (internal quotation marks and citation omitted). That said, “[a]
forum-selection clause will be invalidated when,” inter alia, “enforcement of the clause
would contravene public policy.” Id. Sensify argues enforcement of the clause in this case
would undermine Florida’s interest “in proscribing acceptable conduct relative to trade
secrets for companies that avail themselves of the privilege of conducting business within
this State.” (ECF No. 27 at 3). I am not convinced that the clause is so “obnoxious” to
Florida public policy that I should not enforce it. Cf. Holderness v. Hamilton Fire Ins. Co. of
New York, 54 F. Supp. 145, 147 (S.D. Fla. 1944) (courts need not enforce “a contract right
[that is] is obnoxious to the public policy of a state”). As discussed further below, courts
routinely apply forum-selection clauses to tort actions under circumstances similar to those
With respect to Sensify’s second argument, courts consistently have rejected the
notion that termination of an agreement necessarily extinguishes its forum-selection clause.
See TriState HVAC Equipment, LLP v. Big Belly Solar, Inc., 752 F. Supp. 2d 517, 535 (E.D. Pa.
2010); Versar, Inc. v. Ball, 2001 WL 818354, at *2 (E.D. Pa. 2001); Texas Source Group, Inc. v.
CCH, Inc., 967 F. Supp. 234, 238 (S.D. Tex. 1997); Allied Sound, Inc. v. Dukane Corp., 934 F.
Supp. 272, 275 (M.D. Tenn. 1996); Young Women’s Christian Ass’n of the U.S. v. HMC Entm’t,
Inc., 1992 WL 279361, at *4 (S.D.N.Y. 1992); Advent Elecs., Inc. v. Samsung Semiconductor,
Inc., 709 F. Supp. 843, 846 (N.D. Ill. 1989); see also 13 Corbin on Contracts § 67.2, at 12 (rev.
ed. 2003) (“Although termination and cancellation of an agreement extinguish future
obligations of both parties to the agreement, neither termination nor cancellation affect
those terms that relate to the settlement of disputes or choice of law or forum selection
clauses.”). “Unless otherwise expressed, a choice of forum clause does not expire upon
termination of the contract from which it derives. . . . [T]o read the contract so as to
disregard the forum-selection clause for actions brought following termination would be to
distort its usual, common sense meaning and applicability.” Versar, 2001 WL 818354, at *2
Here, there is nothing in the Agreement that expressly neuters the forum-selection
clause upon termination. Sensify contends, however, that because the Agreement contains a
See, e.g., Omron Healthcare, Inc. v. Maclaren Exports Ltd., 28 F.3d 600, 603 (7th Cir. 1994)
(“[L]itigating [a tort claim] in England is neither immoral nor illegal, and no law or policy of the
United States demands that every dispute be litigated in the tribunal with the most experience – if
that were so, jurisdiction based on diversity of citizenship would be abolished (for state courts
have more experience with their own law than federal courts do), federal defenses to claims filed
in state court would all be removed to federal court, and the courts of the United States would
disclaim any power to adjudicate disputes under foreign law. Yet all of these things are common,
even in cases of exceptional complexity.”).
paragraph expressly providing for the survival of certain enumerated provisions after
termination, the exclusion of the forum-selection clause from that “survival” clause implies
that the forum-selection clause did not survive the Agreement’s termination. See, e.g.,
Exprezit Convenience Stores, LLC v. Transaction Tracking Techs., 2005 WL 2704891 (N.D. Fla.
2005) (contract may indicate by implication that termination should result in invalidation of
forum-selection clause). To be sure, the forum-selection clause is not among the provisions
set out in the Agreement’s “survival” clause. But courts repeatedly have upheld the
applicability of forum-selection clauses even where the contract expressly provides for the
survival of certain enumerated provisions but not the forum-selection clause.2 See TriState,
752 F. Supp. 2d at 535; Versar, 2001 WL 818354, at *2; Texas Source Group, 967 F. Supp. at
238; Allied Sound, 934 F. Supp. at 275; Advent, 709 F. Supp. at 846.
In particular, I am persuaded by the court’s analysis in TriState as to why the forumselection clause in that case survived termination of the agreement:
The fact that the agreement expressly provides for the survival of
certain other contractual provisions, but not the forum-selection
clause, does not alter the analysis. The exclusion of the forumselection clause from the “survival” clause – which, as a general
matter, is intended to ensure the survival of certain contractual
provisions that might otherwise be extinguished upon termination of
the agreement – simply does not evidence a clear intent that, upon
termination of the agreement, the forum-selection clause would cease
to apply to claims arising under the agreement.
TriState, 752 F. Supp. 2d at 36 (citation omitted).
Sensify contends TriState does not apply here because it was a breach-of-contract
action rather than a tort action. That distinction is meaningless for the purposes of this
Courts generally construe “survival” clauses as pertaining only to performance obligations
– indeed, except for the “Definitions” section, those were the only matters addressed in the
Agreement’s “survival” clause – rather than to the settlement of disputes. See, e.g., Silverpop
Sys., Inc. v. Leading Market Techs., Inc., 2014 WL 11164763, at *8 (N.D. Ga. 2014)
(“[C]onstruing the survival clause as limited to the performance obligations of the
agreement properly gives meaning to the relevant provisions[, so that] structural provisions .
. . remain unaffected by the termination of the agreement.”), aff’d, Silverpop Sys., Inc. v.
Leading Market Techs., Inc., 641 F. App’x 849, 858 (11th Cir. 2016) (structural provisions
“may” survive termination). The forum-selection clause here clearly is a structural provision
addressed to the settlement of disputes and does not describe performance obligations of
analysis. As the TriState court itself observed:
Although the scope of a forum-selection clause depends on the specific
language of the clause, courts have generally held that a forumselection clause applies to tort and other non-contract claims that
require interpretation of the contract or otherwise implicate the
contract’s terms. See, e.g., Omron Healthcare, Inc. v. Maclaren Exports,
Ltd., 28 F.3d 600, 601-03 (7th Cir. 1994) (holding that forum-selection
clause governed trademark-infringement claim where resolution of
dispute depended on interpretation of the contract); Crescent Int’l, Inc. v.
Avatar Communities, Inc., 857 F.2d 943, 944-45 (3d Cir. 1988) (holding
that forum-selection clause applied to RICO, fraud, unfaircompetition, and tortious-interference claims because they implicated
the terms of the agreement); Bense v. Interstate Battery Sys. of Am., Inc.,
683 F.2d 718, 720-21 (2d Cir. 1982) (applying forum-selection clause
to antitrust claim); see also Manetti–Farrow, Inc. v. Gucci Am., Inc., 858
F.2d 509, 514 (9th Cir. 1988) (“Whether a forum selection clause
applies to tort claims depends on whether resolution of the claims
relates to interpretation of the contract.”).
Thus, depending on the scope of the forum-selection clause, the pleading of noncontractual theories of liability does not preclude enforcement of the clause. See Manetti–
Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 514 (9th Cir. 1988) (tort claims subject to a
forum selection clause because “resolution of the claims relates to interpretation of the
contract”); Rini Wine Co. v. Guild Wineries & Distilleries, 604 F. Supp. 1055, 1059 (N.D. Ohio
1985) (applying clause to antitrust and unfair trade practice claims because the dispute arose
from the contract). The question, then, is whether Sensify’s FUTSA claim falls within the
scope of the Agreement’s forum-selection clause, which applies to “any dispute arising out
of or relating to [the] Agreement.” (ECF No. 11-1 ¶ 10.h). I conclude that it does.
There exists a definite link between the Agreement and Sensify’s claim. The parties
executed the Agreement on February 22, 2016. Sensify admits that “[o]n February 22, 2016,
in furtherance of their business dealings, Sensify was required to disclose to ITNA a list of
proprietary and protected Sensify customers and accounts.” (ECF No. 1 ¶ 15). That list is
attached to the Agreement as Exhibit C. (ECF No. 11-1 at 17). Sensify further admits that it
and ITNA “agreed that the account list would remain absolutely protected.” (Id. ¶ 28).
Sensify’s claims that ITNA misappropriated at least one customer name from the list in
violation of FUTSA. Thus, resolution of Sensify’s claim depends, at least in part, on an
evaluation of the parties’ rights and obligations vis-à-vis the trade secret information
disclosed under the Agreement. Sensify’s claim therefore “relates to” the Agreement within
the meaning of its forum-selection clause. See, e.g., Pods, Inc. v. Paysource, Inc., 2006 WL
1382099, at *2 (M.D. Fla. 2006) (“In this circuit, forum selection clauses are broadly
construed to effectuate an orderly and efficient resolution of all claims arising between the
parties to a contract and to promote enforcement of those clauses consistent with the
parties’ intent.”) (citing Stewart Org., Inc. v. Ricoh Corp., 810 F.2d 1066, 1070 (11th Cir. 1987)).
In sum, the Agreement’s forum-selection clause survived ITNA’s termination of the
Agreement, and Sensify’s FUTSA claim falls within its scope. Accordingly, Sensify must
litigate its claim against ITNA in the United Kingdom.3
It is hereby ORDERED and ADJUDGED that ITNA’s Amended Motion to
Dismiss (ECF No. 11) is GRANTED. This case is DISMISSED with prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(2). Each party shall bear his or its own costs and
The Clerk is directed to CLOSE this matter. All pending motions, if any, are
DENIED as moot.
DONE and ORDERED in chambers, at Miami, Florida, this 28th day of April 2017.
Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of Record
ITNA also argues that I should dismiss the Complaint because Sensify failed to join
indispensible parties. (ECF No. 11 at 3-8). Sensify counters that ITNA has failed to
demonstrate that any of the parties it claims are indispensible have a cognizable interest in
this litigation. (ECF No. 14 at 5-9). Because I find that the Agreement’s forum-selection
clause requires the parties to litigate their dispute in the United Kingdom, I need not address
their arguments regarding joinder of indispensible parties.
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