Perkins LLC. v. Fille, Inc. et al
Filing
17
OPINION AND ORDER denying 13 Motion to Dismiss for Lack of Personal Jurisdiction or, in the Alternative,Transfer Venue. Signed by Judge Thomas W. Thrash, Jr. on 7/19/2021. (jeh)
Case 1:21-cv-01066-TWT Document 17 Filed 07/19/21 Page 1 of 10
FILED IN CHAMBERS_
THOMAS W. THRASH JR.
U.S.D.C. Atlanta
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JUL \ ^ 2021
Kevin P. Wehner, Clerk
B^ Deputy Ct^rk
PERKINS LLC,
Plaintiff,
CIVIL ACTION FILE
V.
NO. 1:21-CV-1066-TWT
FILLE, INC., et al,
Defendants.
OPINION AND ORDER
This is a Lanham. Act case. It is before the Court on the Defendants'
Motion to Dismiss for Lack of Personal Jurisdiction or, in the Alternative,
Transfer Venue [Doc. 13]. For the reasons set forth below, the Defendants'
Motion to Dismiss for Lack of Personal Jurisdiction or, in the Alternative,
Transfer Venue [Doc. 13] is DENIED.
I. Background
The Plaintiff, Perkins LLC ("Perkins"), operates and licenses retail
restaurants and bakeries under its name. The Defendant Lenny Petrou is the
owner of the Defendants Fille, Inc. ("Fille") and Numero-III, Inc. ("NumeroIII"). The Plaintiff alleges that its predecessor-in-interest and the Defendants
entered into license agreements to operate Perkins restaurants in IVIoorestown
and Green Brook, New Jersey ("the Moorestown Agreement" and "the Green
Brook Agreement," respectively, or "the Agreements," collectively). Further,
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the Defendant Petrou executed a Guarantee and Assumption of Licensee's
Obligations, whereby he personally and unconditionally guaranteed aU
financial and performance obligations of both of the Defendants' Agreements.
The initial term of the Moorestown Agreement expired on August 10, 2019 and
was extended on a month-to-month basis until December 31, 2019. The term
of the Green Brook Agreement was extended by amendment until November
25, 2020, at which time the Agreement expired. The Agreements each
contained provisions outlining the obligations of the licensees upon the
termination of the Agreements. For example, Section 16(A) of the Moorestown
Agreement includes a non-compete clause that prevents any officer of the
Defendants from owning or operating a restaurant within three miles of the
Mloorestown location or any Perkins restaurant. Further, Section 16(C) limits
the use of the Plaintiffs branding, identity, or trademarks and service marks.
The Green Brook Agreement contains similar provisions.
The Plaintiff alleges that, after the expiration of the ]Moorestown and
Green Brook Agreements, the Defendants continued to operate restaurants in
the locations that formerly housed the Perkins restaurants and improperly
used the Plaintiffs trademarks and service marks. The Plaintiff brought this
action in Fulton County Superior Court, seeking injunctive and legal relief for
these alleged violations of the Lanham Act and the Agreements. The
Defendants timely removed the case to this Court, claiming this Court has
federal question jurisdiction over the Lanham Act claim and supplemental
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jurisdiction over the remaining claims. (Notice of Removal ^ 6—7.)
II. Legal Standard
"To establish personal jurisdiction over a nonresident defendant, the
plaintiff has the burden of establishing a prima facie case by presenting enough
evidence to withstand a motion for directed verdict." United States ex rel. v.
Mortgage Investors Corp., 987 F.3d 1340, 1356 (llth Cir. 2021). A party
presents enough evidence to withstand a motion for directed verdict by putting
forth "substantial evidence ... of such quality and weight that reasonable and
fair-minded persons in the exercise of impartial judgment might reach
different conclusions . ..." Walker v. NationsBank ofFla. N.A., 53 F.3d 1548,
1555 (llth Cir. 1995). "The district court must construe the allegations in the
complaint as true, to the extent they are uncontroverted by defendant's
affidavits or deposition testimony." Morris v. SSE, Inc., 843 F.2d 489, 492 (llth
Cir. 1988). "And where the evidence presented by the parties' affidavits and
deposition testimony conflicts, the court must draw all reasonable inferences
in the plaintiffs favor." Mortgage Investors Corp., 987 F.3d at 1356.
III. Discussion
The Plaintiff filed this action in Fulton County Superior Court in
reliance upon an allegedly enforceable forum-selection clause within the
Agreements, which reads in part:
YOU AGREE THAT WE MAY INSTITUTE ANY ACTION
AGAINST YOU TO ENFORCE THE PROVISIONS OF THIS
AGREEMENT IN ANY STATE OR FEDERAL COURT OF
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COMPETENT JURISDICTION IN THE STATE AND COUNTS
IN WHICH OUR PRINCIPAL PLACE OF BUSINESS IS THEN
LOCATED AND YOU IRREVOCABLY SUBMIT TO THE
JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE
ANY OBJECTION YOU MAY HAVE TO EITHER THE
JURISDICTION OR VENUE OF SUCH COURTS. YOU AGREE
THAT ANY ACTION BROUGHT BY YOU TO ENFORCE ANY
PROVISION OF THIS AGREEMENT WILL BE BROUGHT AND
MAINTAINED ONLY IN A STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE COUNTS AND STATE
IN WHICH OUR PRINCIPAL PLACE OF BUSINESS IS THEN
LOCATED.
The Defendants now seek to dismiss this case for lack of personal jurisdiction
or, in the alternative, transfer venue to New Jersey. The Defendants argue
that the Plaintiff has failed to establish this Court's personal jurisdiction over
the Defendants would comport with either Georgia's long-arm statute or due
process. (Defs/ Br. in Supp. ofDefs.' Mot. to Dismiss, at 8-14, 19-22.) Further,
the Defendants argue that because the forum-selection clause was executed by
the Plaintiffs predecessor-in-interest, its language is too ambiguous and
uncertain to enforce here on behalf of the Plaintiff. {Id. at 15-19.)
Alternatively, the Defendants request a transfer of this case to the United
States District Court for the District of New Jersey pursuant to 28 U.S.C.
1404(a). (.Id. at 22-26.) In response, the Plaintiff argues the forum-selection
clause is enforceable for two reasons. First, the Plaintiff argues that because
the Defendants were operating these restaurants on a month-to-month basis
at the time of the licenses' expirations, the "Defendants ratified and reaffirmed
their franchise agreements with Perkins, with fuU knowledge that Perkins
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maintained its headquarters in Georgia." (Pl.'s Br. in Opp'n to Defs.' Mot. to
Dismiss, at 3.) Second, the Plaintiff claims that other provisions in the
Agreements clearly indicated that any successor-in-interest could enforce
these forum-selection clauses. (.Id.)
"In analyzing a motion to dismiss for lack of personal jurisdiction under
Fed. R. Civ. P. 12(b)(2), we first determine whether the applicable statute
potentially confers jurisdiction over the defendant, and then determine
whether the exercise of jurisdiction comports with due process." Republic of
Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 942 (llth Cir.
1997). However, "[e]ven where neither the forum state's long-arm statute nor
the due process minimum, contacts analysis is satisfied, a court may exercise
personal jurisdiction over a party if the party consents. Waite v. All
Acquisition Corp., 901 F.3d 1307, 1312 (llth Cir. 2018). "Parties may, for
example, contract or stipulate to submit their controversies for resolution
within a particular jurisdiction." Id. at 1312—13 (internal quotation marks
omitted). As long as these agreements are freely negotiated and are neither
unreasonable nor unjust, "their enforcement does not offend due process.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.l4 (1985). Thus, if the
Defendants submitted to jurisdiction in Georgia under the Agreements, this
Court would have personal jurisdiction over the Defendants regardless of the
result of the traditional two-step analysis.
The Defendants repeatedly focus on individual clauses within the
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Agreements to argue that these provisions do not clearly extend to future
successors and assignees. (Defs.' Br. in Supp. ofDefs.' Mot. to Dismiss, at 16
("On its face, this forum selection clause does not extend to a future successor
or assignee's principal place of business, and cannot be used to bootstrap
jurisdiction over the Defendants.").) However, the Agreements are governed by
Tennessee law. ("Except to the extent governed by the United States
Trademark Act of 1946 or other federal law, this Agreement and the License
shall be governed by the laws of Tennessee without regard to conflict of laws
rules." (capitalization altered).) Under Tennessee law, "a contract's provisions
must be interpreted in the context of the entire contract, viewed from
beginning to end and all its terms must pass in review, for one clause may
modify, limit or illustrate another." D & E Constr. Co., Inc. v. Robert J. Denley
Co., 38 S.W.Sd 513, 519 (Tenn. 2001) (internal quotation marks omitted).1
Reading these clauses in conjunction with the entirety of the Agreements, the
plain language reveals that all future successors and assignees would be
subject to these contractual obligations absent modification of the underlying
1 Even if this choice-of-law provision were not applicable here,
interpreting a contract as a whole is not a concept unique to Tennessee. See
Shepherd v. Greer, Klosic & Daugherty, 325 Ga. App. 188, 190 (2013) ("[T]he
construction which will uphold a contract in whole and in every part is to be
preferred, and the whole contract should be looked to in arriving at the
construction of any part." (internal quotation marks omitted)); see also
Restatement (Second) of Contracts § 202(2) (1981) ("A writing is interpreted as
a whole, and all writings that are part of the same transaction are interpreted
together.").
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Agreements. For example, just below the forum-selection clause in the
Agreements, the contracts read:
This Agreement is binding upon the parties hereto and their
respective executors, administrators, heirs, assigns and
successors in interest, and shall not be modified except by written
agreement signed by both you and us.
Additionally, Section 12(A) of the Agreements states that each "Agreement is
fully transferable by us and will inure to the benefit of any transferee or other
legal successor to our interests in this Agreement." Reading them as a whole,
it appears clear that all provisions of the Agreements, including the forumselection clauses, apply with equal force to successors-in-interest. As a result,
these provisions preclude the Defendants' argument that the terms "our" and
"we" throughout the Agreements refer only to the Plaintiffs predecessor-ininterest, as the Agreements clearly contemplate the potential transfer or
assignment of the predecessor's rights. (Defs.' Br. in Supp. of Defs.' Mot. to
Dismiss, at 15-16.)
The Court wiU therefore read the Agreements with the Plaintiff
standing in the place of its predecessors-in-interest, and the subsequent
analysis is simple. Section 18(G) of the Agreements dictates that the
Defendants "agree that [the Plaintiff] may institute any action against [the
Defendants] to enforce the provisions of this agreement in any state or federal
court of competent jurisdiction in the state and county in which [the Plaintiffs]
principal place of business is then located and [the Defendants] irrevocably
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submit to the jurisdiction and venue of such courts and waive any objection
[they] may have to either the jurisdiction or venue of such courts." The
Defendants' claim that this provision "does not identify a particular forum."
(Defs.' Br. in Supp. ofDefs/ Mot. to Dismiss, at 16.) While this provision does
not name a forum, it does identify one '• "any state or federal court of competent
jurisdiction in the state and county in which [the Plaintiffs] principal place of
business is then located . ..." The Plaintiffs principal place of business is
currently located in Fulton County, Georgia. Therefore, the Plaintiff may bring
any suit against the Defendants arising out of the Agreements in either this
Court or a Fulton County Superior or State Court. The Agreements make clear
that the Defendants have consented to personal jurisdiction before this Court,
and no statutory or constitutional analysis is required. See Waite, 901 F. 3d at
1312.
This Court also has personal jurisdiction over the Defendant Petrou. In
the Guaranty obligating the Defendant Petrou to guarantee the Defendant
FiUe's contractual obligations to the Plaintiffs predecessor-in-interest, The
Restaurant Company ("TEC"), the contracts state:
In consideration of and as an inducement to the execution of the
Agreement by TRC, each person signing this Guaranty hereby
personally and unconditionally, jointly and severally: (i)
guarantees to TRC and its successors and assigns that the
Licensee will punctually pay when due all amounts required to be
paid under the Agreement and perform each and every
undertaking, agreement and covenant set forth in the Agreement;
and (ii) agrees to be personally bound by, and personally liable for
the breach of, each and every provision in the Agreement.
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A similar clause exists in the Defendant Petrou's Guaranty relating to the
Defendant Numero-III's obligations to the Plaintiffs predecessor. Just as the
Agreements require the Defendant LLCs to submit to the jurisdiction of this
Court, Petrou is bound by the forum-selection clauses in the Agreements, as
well. Therefore, the Court has personal jurisdiction over all of the Defendants
in this action, and the Defendants' Motion to Dismiss for Lack of Personal
Jurisdiction is denied.
The Defendants' alternative request of a transfer to the United States
District Court for the District of New Jersey is also denied. The Defendants
seek a transfer under 28 U.S.C. § 1404(a), arguing that New Jersey would
represents a more convenient, efficient, and just forum for this dispute. (Defs.'
Br. in Supp. ofDefs.' M.ot. to Dismiss, at 23.) However, "a proper application of
1404(a) requires that a forum-selection clause be given controlling weight in
all but the most exceptional cases." Ati. Marine Constr. Co. v. U.S. Dist. Court
for the Western Dist. of Texas, 571 U.S. 49, 59-60 (2013) (internal quotation
marks omitted). Because the forum-selection clauses in the Agreements are
valid and enforceable, and because the Defendants have identified no
exceptional circumstances that suggest enforcement of these clauses is
improper, § 1404(a) does not preclude the Plaintiffs choice of forum in this
action.
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IV. Conclusion
For the reasons set forth above, the Defendants' Motion to Dismiss for
Lack of Personal Jurisdiction or, in the Alternative, Transfer Venue [Doc. 13]
is DENIED.
SO ORDERED, this /
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