LONE STAR INDUSTRIES, INC. d/b/a BUZZI UNICEM USA v. FORT WALTON CONCRETE, INC et al
Filing
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ORDER denying Defendants' 22 Motion to Dismiss, or in the alternative, to transfer venue. Signed by Judge Richard L. Young on 7/13/2015. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LONE STAR INDUSTRIES, INC.,
d/b/a BUZZI UNICEM USA,
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Plaintiff,
vs.
FORT WALTON CONCRETE, INC and
CRESTVIEW READY MIX, INC.,
Defendants.
1:14-cv-00133-RLY-DML
ENTRY ON DEFENDANTS’ MOTION TO DISMISS, OR IN THE
ALTERNATIVE, TO TRANSFER VENUE
This action arises out of a commercial dispute between Plaintiff, Lone Star
Industries, Inc., d/b/a Buzzi Unicem USA (“Buzzi”), and Defendants, Fort Walton
Concrete, Inc. (“FWC”) and Crestview Ready Mix, Inc. (“CRM”) (collectively
“Defendants”). Presently before the court is Defendants’ motion to dismiss the
Complaint for lack of personal jurisdiction and failure to state a claim pursuant to Federal
Rules of Civil Procedure 12(b)(2) and 12(b)(6) respectively, or in the alternative, to
transfer venue to the United States District Court for the Northern District of Florida,
Pensacola Division, pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below,
Defendants’ motion is DENIED.
I.
Background
Defendants manufacture and deliver concrete in Florida. Defendants purchased
most of their cement from Buzzi at its facility in Santa Rosa County, Florida, pursuant to
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a Buyer’s Credit Application and Open Account Agreements, signed by President of both
Defendants, James E. Campbell, on November 16, 2006 (“Agreements”). The
“Agreements” contain choice of law and forum selection provisions, which provide:
“Seller and Buyer further agree that any legal action shall be brought in the State or
Federal Court located in Indianapolis, Indiana and that Buyer and seller both submit to
the exclusive personal jurisdiction of such courts.” (Filing No. 1-1, Complaint, Exhibit
3).
From 2008 through 2011, the construction industry declined significantly,
resulting in less demand for Defendants’ concrete. During that time period, Defendants
were unable to make the payments in full for Buzzi’s Portland cement. (Filing No. 23 ¶
10). Defendants do not dispute that they owe Buzzi for the cement they purchased; they
do dispute, however, the amount demanded by Buzzi.
In December 2013, the parties filed suit against each other in different forums.
First, on December 9, 2013, Defendants filed suit against Buzzi in Florida state court
alleging fraud in the inducement, conversion, and a claim under the Florida Deceptive
and Unfair Trade Practices Act (the “Florida” case). (Id. ¶ 1). Buzzi removed the Florida
case to the United States District Court, Northern District of Florida, Pensacola Division,
on grounds of diversity jurisdiction. Id. Buzzi also moved to dismiss the Second
Amended Complaint filed in the Florida case or, in the alternative, moved to transfer
venue of the case to the Southern District of Indiana. Second, on December 13, 2013,
Buzzi filed suit against Defendants in the Marion Superior Court, seeking to collect the
outstanding balances owed by Defendants (the “Indiana case”). Defendants, in turn,
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removed the Indiana case to United States District Court, Southern District of Indiana,
Indianapolis Division, on the same jurisdictional grounds. (Id. ¶ 2). On February 25,
2014, the court granted the parties’ joint motion to stay the Indiana case pending ruling
on Buzzi’s motion to dismiss or transfer the Florida case. (Id. ¶ 3).
On January 2, 2015, the Florida Court transferred the Florida case to the Southern
District of Indiana, Indianapolis Division, pursuant to the forum selection clauses set
forth in the Agreements. (Id. ¶ 5). On January 22, 2015, this court entered an Order
Consolidating Cases. (Id. ¶ 7). On February 3, 2015, Defendants filed the present
motion to dismiss the Indiana case or, in the alternative, motion to transfer venue of the
Indiana case to the United States District Court for the Northern District of Florida.
(Filing No. 22). To grant Defendants’ motion would require the court to unconsolidate
the Florida and Indiana cases, and transfer the Indiana case to Florida.
II.
Discussion
A.
Motion to Dismiss for Lack of Personal Jurisdiction
1.
Standard of Review
“Challenges to personal jurisdiction may be waived by either express or implied
consent.” Heller Financial, Inc. v. Mid-Whey Powder Co., Inc., 883 F.2d 1286, 1290
(7th Cir. 1989) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985)).
In the commercial context, parties typically agree in advance to submit their disputes for
resolution in a particular forum pursuant to a forum-selection clause. Id. The
“‘enforcement of [a] valid forum selection clause, bargained for by the parties, protects
their legitimate expectations and furthers vital interests of the justice system.’” Atlantic
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Marine Const. Co., Inc. v. U.S. Dist. Ct. for W. Dist. of Texas, 134 S.Ct. 568, 581 (2013)
(citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988)). “For that reason, and
because the overarching consideration under § 1404(a) is whether a transfer would
promote ‘the interest of justice,’ ‘a valid forum-selection clause [should be] given
controlling weight in all but the most exceptional cases.’” Id. (citing Stewart, 487 U.S. at
33)). See also, Knauf Insulation, GMBH v. S. Brands, Inc., No. 1:12-cv-00273, 2013
U.S. Dist. LEXIS 38435, at *14 (S.D. Ind. Mar. 19, 2013) (“Due process is not offended
by enforcing a reasonable forum selection clause that has been obtained through a freely
negotiated agreement”).
2.
Is the Forum-Selection Clause Valid?
Defendants argue that the forum-selection clause within each Agreement is not
enforceable for two reasons. First, they contend that, because Buzzi did not sign the
Agreements, contracts between Defendants and Buzzi were never formed. Second, they
contend that the identity of the seller from the six Buzzi-related entities is not adequately
identified within the Agreements.
The absence of a signature on a contract does not mean that acceptance did not
occur, however. Indiana law provides that a party may demonstrate an intent to be bound
through acts manifesting acceptance. Homer v. Borman, 743 N.E. 2d 1144, 1147 (Ind.
Ct. App. 2001) (“Assent to th[e] terms of a contract may be expressed acts which
manifest acceptance.”). Although Buzzi did not sign the Agreements, the company’s
monthly cement deliveries to Defendants establishes acceptance by performance.
Because Buzzi accepted the Agreements through performance, the fact that Buzzi did not
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sign the Agreements does not invalidate the contract. Therefore, the forum-selection
clauses are enforceable, making Indiana the proper forum for this case to be heard.
The Agreements also adequately identify the identity of the seller. Both Buzzi
Unicem USA and Lone Star Industries, Inc., are identified at the top of the first page of
each Agreement. Additionally, Buzzi Unicem USA is listed on each Invoice, indicating
that Buzzi is the seller of the cement. (Filing No. 1-1, Complaint, Exhibit 1, 3). The
Florida District Court found that these facts sufficiently identified the parties to the
Agreements, and there is no reason for this court to find otherwise. Indiana law holds
that a contract and “any other contemporaneous written agreements it incorporates must
be construed together in order to determine the parties’ intentions.” Noble Roman’s, Inc.
v. Ward, 760 N.E.2d 1132, 1138 (Ind. Ct. App. 2002). For the reasons set forth above,
the court finds that the forum-selection clauses are enforceable.
B.
Motion to Dismiss for Failure to State a Cause of Action
1.
Standard of Review
Rule 12(b)(6) allows defendants to move for dismissal when a plaintiff’s pleading
fails to state a claim upon which relief can be granted. A court may grant a motion to
dismiss if the complaint fails to contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In
reviewing the sufficiency of a complaint, the court accepts all well pled facts as true and
draws all permissible inferences in favor of the plaintiff. Agnew v. Nat’l Collegiate
Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012). However, “mere conclusory
statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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2.
Should Buzzi’s Complaint Survive the 12(b)(6) Motion?
Defendants argue that Buzzi’s Complaint should be dismissed because the
Agreements make references to “seller invoices” that Buzzi did not attach alongside the
Agreements. (Filing No. 23 ¶ 71). However, plaintiffs do not have to provide underlying
invoices if the provided statement of account constitutes sufficient evidence indicating
potential liability. Meyer v. Nat’l City Bank, 903 N.E.2d 974, 976 (Ind. Ct. App. 2009).
Here, Buzzi attached to the Indiana Complaint the statements of account from
May 2010 through December 2013 for both Fort Walton Concrete and Crestview Ready
Mix. (Exhibits 1-2, Filing No. 1). These monthly statements indicate that both
Defendants received monthly notifications of their accumulating debt over a period of
years. Therefore, Buzzi’s failure to attach seller invoices is not fatal to its claim. When
viewing these facts in the light most positive toward the plaintiff, the court finds that the
Indiana Complaint sufficiently states a cause of action.
C.
Motion to Transfer Venue
In the alterantive, Defendants move to transfer the Indiana case to the Northern
District of Florida.
1.
Standard of Review
Section 1404(a) allows a district court to transfer any civil action to any other
district where it might have been brought or where all parties have consented “for the
convenience of parties and witnesses.” 28 U.S.C. § 1404(a). Section 1404(a) provides
the “mechanism for enforcement of forum-selection clauses that point to a particular
federal district.” Atlantic Marine, 134 S.Ct. at 579 (2013). In weighing whether to grant
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a motion to transfer based upon a forum-selection clause, courts may only consider these
public interest factors: “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 581
n.6. However, if a forum-selection clause is found valid it should govern in all but the
most exceptional cases. Stewart, 487 U.S. at 31.
2.
Should Motion to Transfer be Denied?
Defendants have moved for this case to be transferred to the United States District
Court for the Northern District of Florida, Pensacola Division. Defendants first argue
that the Agreements’ forum-selection clause is invalid because the contracts are not
actually binding. However, as noted above, the court has found that the Agreements’
forum-selection clauses are binding and should be enforced in this case. Therefore, this
argument has no merit.
Defendants further claim that the case should be transferred because every single
interaction between the parties occurred in Florida. Defendants insist that the vast
majority of witnesses are in Florida and that Florida law should be applied. In essence,
they are arguing that transfer should be granted for convenience and cost reasons.
However, the Seventh Circuit does not allow parties to seek transfer for these reasons
when they have already waived such rights through a forum-selection clause. Id. Despite
Defendants’ arguments for judicial efficiency, they waived their right to transfer when
they entered into the Agreements with Buzzi. Because the valid forum-selection clauses
dictate that any cases be heard in Indiana, Defendants’ motion is denied.
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III.
Conclusion
The court finds that personal jurisdiction exists over the Defendants and that
Buzzi’s Complaint states a claim upon which relief can be granted. Additionally, the
United States District Court for the Southern District of Indiana is a proper venue for
Buzzi’s claims to be heard. Therefore, Defendants’ motion to dismiss, or in the
alternative, to transfer venue (Filing No. 22) is DENIED.
SO ORDERED this 13th day of July 2015.
_________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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