Shider v. Bridgeport Music, Inc. et al
MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 9/27/2013. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. 8:13-cv-00527-AW
BRIDGEPORT MUSIC, INC. et al.,
Pending before the Court is Defendants’ Motion to Dismiss. The Court has reviewed the
record and deems a hearing unnecessary. For the following reasons, the Court GRANTS
Defendants’ Motion to Dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Linda Shider is a Maryland resident. Plaintiff is the widow and Executrix of the
Estate of Garry Marshall Shider (“Shider”). Shider, who died of cancer in 2010, was a famous
musician and guitarist. Shider is mainly known for his work with the legendary funk band
Parliament-Funkadelic. Shider co-wrote over 375 songs during his lifetime and is a Rock and
Roll Hall of Fame inductee. The appellation “the Shiders” refers to Plaintiff and the late Shider.
Defendant Bridgeport Music, Inc. (“Bridgeport”) is a Michigan corporation that is
located in Michigan. Bridgeport engages in music publishing. Defendant Armen Boladian
(“Boladian”) also resides in Michigan and owns Bridgeport. Unless otherwise noted, the
designation “Defendants” refers to Bridgeport, Boladian, or both.
Shider joined Parliament-Funkadelic in 1971 and co-authored numerous songs between
1971 and 1983. At least some of this songwriting took place in Detroit, Michigan. Doc. No. 1-2
at 2. During this period, Shider entered into various agreements with Defendants that purported
to transfer Shider’s copyright interests in his songs to Defendants.1 For simplicity’s sake, the
Court collectively refers to these agreements as “Single Song Agreements.” Plaintiff alleges that
the Single Song Agreements were invalid and fraudulent. Allegedly, Defendants would have
Shider and other musicians sign blank Single Song Agreements and later fill in their terms. One
such term was what share of the royalties belonged to a particular co-author.
Plaintiff generally alleges that Defendants did not pay Shider enough royalties from the
Single Song Agreements. Specifically, Plaintiff alleges that Defendants failed to pay Shider
royalties for these songs at all or failed to pay him his rightful share of the royalties. In this
connection, Defendants allegedly would give Shider purported loans or advances on his royalty
payments. This scheme allegedly created the appearance that Shider was perpetually indebted to
Defendants even though they owed him royalty payments.
At an unspecified point in time, the Shiders moved to Upper Marlboro, Maryland. In
1992, Defendants bought the Shiders a house and advanced Shider $150,000 in connection with
the sale. In 1997, Defendants transferred title of the house to the Shiders. Apparently, Defendants
recouped this money by withholding some or all of Shider’s royalty payments. During this
period, Defendants apparently continued making purported royalty payments to Shider.
In 2009, Defendants contacted Shider in Maryland and proposed that he enter into a
Writer’s Share Purchase Agreement (“Purchase Agreement” or “Agreement”). Shider executed
the Agreement on September 23, 2009. The Purchase Agreement is essentially an instrument
whereby Defendants purported to purchase all of Shider’s rights to his songs. The Agreement
The Parties have not produced any of these agreements.
recites a consideration of $290,000. Plaintiff does not dispute that Defendants paid the recited
The Agreement also contains a provision that figures centrally in this case. Section 12(f)
contains both a forum-selection and choice-of-law clause requiring disputes under it to be
brought in Wayne County, Michigan and adjudicated by Michigan law. Pertinently, section 12(f)
This Agreement shall be deemed to be made in the State of Michigan and its
validity, construction and effect shall be governed by the laws of the State of
Michigan applicable to agreements wholly performed therein. All disputes under
this Agreement shall be submitted exclusively to the State or Federal Courts
located in Wayne County, Michigan, each party hereby agreeing to submit to the
jurisdiction of said Courts.
Doc. No. 1-6 § 12(f), at 7.
Plaintiff alleges that Shider was incapacitated when he executed the Purchase Agreement.
According to Plaintiff, Shider was addicted to alcohol and drugs when he signed the Agreement.
Plaintiff further alleges that Shider was suffering from an undiagnosed brain tumor at this time.
Shider passed away on June 16, 2010.
On February 19, 2013, based on the foregoing allegations, Plaintiff filed her Complaint.
Count I is for fraud. Count I is written broadly and subsumes Defendants’ alleged fraud in
connection with both the Single Song Agreements and Purchase Agreement. In Counts II – IV,
Plaintiff asks the Court to declare that the Purchase Agreement is invalid due to lack of capacity,
failure of consideration, and no meeting of the minds. Plaintiff alleges in Count V that
Defendants have continued to make money on Shider’s works by allowing musicians to sample
them and that Defendants have not paid Shider for these derivative compositions.
On July 3, 2013, Defendants filed a Motion to Dismiss for Lack of Personal Jurisdiction
and Improper Venue (Motion to Dismiss). Doc. No. 1. Defendants argue that the Court’s
exercise of personal jurisdiction over them would violate due process because they have no
meaningful contacts with Maryland. Defendants further argue that venue is improper in view of
their lack of contacts with Maryland and the forum-selection clause. Plaintiff filed her
Opposition on July 19, 2013. Defendants have replied.
STANDARD OF REVIEW
Motion to Dismiss for Lack of Personal Jurisdiction
When nonresident defendants challenge the court’s power to exercise personal
jurisdiction over them via motion under Rule 12(b)(2), “the jurisdictional question is to be
resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for
jurisdiction by a preponderance of the evidence.” Carefirst of Md., Inc. v. Carefirst Pregnancy
Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citation omitted). If the existence of jurisdiction
turns on disputed factual questions, the court may resolve the motion on the basis of an
evidentiary hearing. See Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). However, if the
court rules on the motion without conducting an evidentiary hearing, “the plaintiff need only
make a prima facie showing of personal jurisdiction.” Carefirst, 334 F.3d at 396; see also CoStar
Realty Info., Inc. v. Field, 612 F. Supp. 2d 660, 667 (D. Md. 2009) (citations omitted). “In
deciding whether the plaintiff has made the requisite showing, the court must take all disputed
facts and reasonable inferences in favor of the plaintiff.” Carefirst, 334 F.3d at 396 (citation
Motion to Dismiss for Improper Venue
Parties bring motions to dismiss for improper venue pursuant to Rule 12(b)(3) of the
Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b)(3). “Unlike a Rule 12(b)(6) motion,
evidence outside the pleadings may be ‘freely consider[ed]’ in ruling on a Rule 12(b)(3)
motion.” Am. Ins. Mktg. Corp. v. 5 Star Life Ins. Co., --- F. Supp. 2d ----, Civil Action No. DKC
13–0560, 2013 WL 3895039, at *2 (D. Md. July 26, 2013) (quoting Sucampo Pharms., Inc. v.
Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006)). “A plaintiff is obliged, however, to
make only a prima facie showing of proper venue in order to survive a motion to dismiss.”
Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 366 (4th Cir. 2012) (citation omitted). In
assessing whether the plaintiff has made this showing, courts must “view the facts in the light
most favorable to the plaintiff.” Id. (citation omitted). “A motion to dismiss based on a
contractual forum selection clause is properly analyzed as a motion to dismiss for improper
venue . . . .” Am. Ins., 2013 WL 3895039, at *2 (citing Sucampo, 471 F.3d at 550).
Whether the Court Has Personal Jurisdiction Over Defendants
Defendants argue that the Court has neither general nor specific jurisdiction over them.
Plaintiff responds that jurisdiction in Maryland is proper because, allegedly, Defendants have
extensive contacts with Shider through their business dealings with him in Maryland.
A federal court may exercise personal jurisdiction over a nonresident defendant if: (1) the
long-arm statute of the forum state authorizes jurisdiction; and (2) the assertion of jurisdiction
comports with Fourteenth Amendment due process requirements. See Christian Sci. Bd. of Dirs.
of First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). Maryland’s
long-arm statute is coextensive with the scope of jurisdiction that the Due Process Clause
permits. See Carefirst, 334 F.3d at 396 (citing Mohamed v. Michael, 370 A.2d 551, 553 (Md.
1977)). Thus, the normal two-step inquiry merges into one, and courts need not address the longarm statute issue separate from the due process inquiry. See Ellicott Mach. Corp., Inc. v. John
Holland Party Ltd., 995 F.2d 474, 477 (4th Cir. 1993).
A court’s exercise of jurisdiction over a nonresident defendant comports with due process
only if the defendant has “minimum contacts” with the forum such that requiring the defendant
to defend its interests in that state “does not offend traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation and internal quotation
marks omitted). Courts have recognized two types of personal jurisdiction: general and specific.
See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). General
jurisdiction is proper where the defendant’s contacts with the forum are “continuous and
systematic.” Id. at 416. Here, Plaintiff does not appear to argue that Defendants have “continuous
and systematic” contacts with Maryland. Id. Rather, Plaintiff essentially argues that Defendants’
alleged contacts “arise out of” and are “related to” Defendants’ activities in Maryland. See id. at
414–15. Therefore, the Court need not assess whether general jurisdiction is present and focuses
its analysis on the presence vel non of specific jurisdiction.2
Specific jurisdiction is present when a nonresident defendant lacks continuous and
systematic contacts with the forum state yet “purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and protections of its
laws.” Hanson v. Denckla, 357 U.S. 235, 254 (1958) (citing Int’l Shoe, 326 U.S. at 319). The
Fourth Circuit has articulated a three-prong test to determine whether the assertion of specific
jurisdiction satisfies due process. Courts must consider: (1) the extent to which the defendant
Were the Court to reach the question, the Court would conclude that Defendants lack continuous and
systematic contacts with Maryland for the reasons stated in Defendants’ Motion to Dismiss, Doc. No. 121 at 10, as well as those stated hereinbelow.
purposefully availed itself of the privilege of conducting activities in the State; (2) whether the
plaintiffs’ claims arise out of those activities directed at the State; and (3) whether the exercise of
personal jurisdiction would be constitutionally reasonable.” Consulting Eng’gs Corp. v.
Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009) (citation and internal quotation marks
“The first prong articulates the minimum contacts requirement of constitutional due
process that the defendant purposefully avail himself of the privilege of conducting business
under the laws of the forum state.” Id. “[C]ourts have considered various nonexclusive factors in
seeking to resolve whether a defendant has engaged in such purposeful availment.” Id. These
i. whether the defendant maintains offices or agents in the forum state;
ii. whether the defendant owns property in the forum state;
iii. whether the defendant reached into the forum state to solicit or initiate
iv. whether the defendant deliberately engaged in significant or long-term
business activities in the forum state;
v. whether the parties contractually agreed that the law of the forum state would
vi. whether the defendant made in-person contact with the resident of the forum in
the forum state regarding the business relationship;
vii. the nature, quality, and extent of the parties’ communications about the
business being transacted; and
viii. whether the performance of contractual duties was to occur within the forum.
See id. (citations omitted).
For its part, “[t]he third prong . . . permits a court to consider additional factors to ensure
the appropriateness of the forum once it has determined that a defendant has purposefully availed
itself of the privilege of doing business there.” Id. at 279. “Such factors include: (1) the burden
on the defendant of litigating in the forum; (2) the interest of the forum state in adjudicating the
dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the shared
interest of the states in obtaining efficient resolution of disputes; and (5) the interests of the states
in furthering substantive social policies.” Id. (citation omitted).
In this case, Plaintiff has failed to make a prima facie showing of purposeful availment on
Defendants’ part. The factors that the Fourth Circuit set forth in Consulting Engineers strongly
weigh in Defendants’ favor. As for factor (1), Defendants have submitted uncontested evidence
that they maintain no offices or agents in Maryland. Doc. No. 12-2 ¶ 4. Regarding factor (2),
although Plaintiff declares that Defendants purchased the Shiders’ Maryland residence, Plaintiff
states that Defendants transferred title to them in 1997. Doc. No. 17-1 ¶ 17. Factor (3), however,
may favor Plaintiff. There is evidence from which one could infer that Defendants frequently
contacted Shider “by telephone and mail” in Maryland in connection with the Purchase
Agreement. Id. ¶ 20. Plaintiff also declares that Defendants made purported royalty payments to
Shider in Maryland and that Defendants’ directed most of their communications regarding these
payments to Shider in Maryland. These declarations, however, discount the fact that Shider and
Defendants had a longstanding business relationship that originated outside of Maryland in 1971.
Therefore, the rather passive activity this case involves contrasts with the case where out-of-state
defendants “advertise or otherwise solicit business” with general consumers in the forum state.
Cf. Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102, 113 (1987)
Factors (4) and (5) also fail to support a prima facie showing of purposeful availment.
Factor (4) considers whether the defendant deliberately engaged in significant or long-term
business activities in the forum state. Reduced to their essence, Plaintiffs’ declarations indicate
that, in the at least 18-year period that Shider lived in Maryland, Defendants gave Shider
purported royalty payments on various occasions, bought a house for him, and negotiated with
him concerning the Purchase Agreement. These activities are neither significant nor long-term.
Rather, they are isolated transactions or dealings that relate primarily to a preexisting business
relationship. Cf. Chung v. NANA Dev. Corp., 783 F.2d 1124, 1128 (4th Cir. 1986) (suggesting
that an isolated contractual transaction in the forum state does not constitute purposeful
availment where the defendant has taken considerable steps to confine its activities to the home
state). Factor (5) also weighs against Plaintiff. Section 12(f) of the Purchase Agreement contains
a forum-selection clause requiring disputes under it to be brought in Wayne County, Michigan.
The same section also contains a choice-of-law clause for Michigan law and states that the
Agreement shall be deemed to be made in Michigan. The Supreme Court has held that forumselection clauses are relevant, though not dispositive, of the question whether a defendant has
purposefully availed himself of a particular forum. See Burger King Corp. v. Rudzewicz, 471
U.S. 462, 481–82 (1985). These provisions indicate that Defendants did not intend to avail
themselves of the privilege of conducting business under Maryland law by entering into the
Factors (6) – (8) likewise disfavor a finding of purposeful availment. As for factor (6),
although Defendants evidently visited Maryland once to buy Shider’s house, there is no
indication that Defendants visited Maryland in connection with the Purchase Agreement.
Moreover, the overall relevance of the allegation that Defendants purchased Shider a house in
1992 is unclear. Concerning factor (7), Plaintiff’s affidavit does not adequately detail the nature,
quality, or extent of the Parties’ communications about the Purchase Agreement. Finally, factor
(8) favors Defendants because there is no indication that the Parties were to perform the
Purchase Agreement in Maryland. Indeed, it appears that its performance was complete when
Defendants paid Shider the consideration for his song rights.
For these reasons, Plaintiff has failed to make a prima facie showing that Defendants
purposefully availed themselves of the privilege of conducting activities within Maryland.
Accordingly, as nonresidents who lack continuous and systematic contacts with Maryland, the
Court lacks personal jurisdiction over Defendants.
Assuming Plaintiff had made a prima facie showing of purposeful availment, the Court
would still conclude that the exercise of personal jurisdiction over Defendants is constitutionally
unreasonable. Litigating in this forum would burden Defendants significantly considering that
they reside in Michigan and apparently have been to Maryland only once during the relevant
time period. Although Plaintiff might assert that the opposite is equally true, the forum-selection
clause suggests otherwise. Furthermore, the record reflects that more of the evidence and
witnesses are located in Michigan. For instance, one of Plaintiff’s affiants, musician David Lee
Spradley, declares that he, Shider, and Defendants first entered into the Single Song Agreements
in Detroit. See Doc. No. 1-2 at 2. Likewise, the declaration of Bernie Mendelsohn, Boladian’s
former business partner, discusses only activities at Bridgeport, which is located in Michigan.
Furthermore, Mendelsohn presumably resides in Michigan because his affidavit was notarized in
Wayne County. See Doc. No. 1-3 at 4. Exercising personal jurisdiction over Defendants would
interfere with the interests of the states in furthering substantive social policies because the
Agreement contains a forum-selection clause. Maryland courts “generally accept that the
parties to a contract may agree as to the law which will govern their transaction, even as to issues
going to the validity of the contract.” Nat’l Glass, Inc. v. J.C. Penney Props., Inc., 650 A.2d 246,
248 (Md. 1994) (citation and internal quotation marks omitted); accord Kunda v. C.R. Bard, Inc.,
671 F.3d 464, 469 (4th Cir. 2011) (citation and internal quotation marks omitted). And, while
Michigan adopts a more flexible approach to determine the enforceability of choice-of-law
clauses, “the relevant contacts” favor the application of Michigan law. Cf. Chrysler Corp. v.
Skyline Indus. Servs., Inc., 528 N.W.2d 698, 703 (Mich. 1995). Accordingly, exercising
jurisdiction over Defendants would be constitutionally unreasonable.
Whether Venue in the District of Maryland is Proper
In relevant part, the general federal venue statute provides as follows:
(b) Venue in general.—A civil action may be brought in—
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of
the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.
28 U.S.C. § 1391.
In this case, venue is improper under § 1391(b)(2) because a substantial part of the events
allegedly giving rise to Plaintiff’s claims did not occur in Maryland. The Parties’ isolated
contractual arrangement and sporadic dealings over the course of decades do not rise to the level
of substantiality. In short, Michigan is the focal point of the dispute. Likewise, venue is improper
under § 1391(3) because Defendants are not subject to personal jurisdiction here.
Venue is also improper in Maryland because Plaintiff has asserted copyright infringement
claims. Courts generally determine whether venue is proper in a copyright infringement suit
pursuant to 28 U.S.C. § 1400. Pertinently, § 1400 provides that “[c]ivil actions, suits, or
proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask
works or designs may be instituted in the district in which the defendant or his agent resides or
may be found.” 28 U.S.C. § 1400(a) (emphasis added). Here, it is uncontested that Defendants
do not reside in Maryland. Furthermore, the “may be found” term is inapplicable because the
Court lacks personal jurisdiction over Defendants. See Metro. Reg’l Info. Sys., Inc. v. Am. Home
Realty Network, Inc., 888 F. Supp. 2d 691, 703 (D. Md. 2012) (citation omitted) (concluding that
the term “may be found” in § 1400(a) means any district that may assert personal jurisdiction
over the defendant).
Moreover, venue is improper in view of the Purchase Agreement’s forum-selection
clause. “[A] federal court interpreting a forum selection clause must apply federal law in doing
so.” Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 650 (4th Cir. 2010). “Federal law
recognizes forum-selection provisions to be prima facie valid and requires such provisions to be
enforced unless the party opposing the provision establishes that enforcement of the forumselection clause would be unreasonable.” Whiting-Turner Contracting Co. v. Westchester Fire
Ins. Co., Civil No. JFM–13–348, 2013 WL 3177881, at *3 (D. Md. June 20, 2013) (citing M/S
Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 10 (1972)). “When construing forum selection
clauses, federal courts have found dispositive the particular language of the clause . . . .”
Albemarle, 628 F.3d at 650–51. “A forum selection clause, like other contractual provisions,
must be interpreted in accordance with its plain meaning.” Rihani v. Team Exp. Distrib., LLC,
711 F. Supp. 2d 557, 561 (D. Md. 2010) (citation omitted). Decisions interpreting the
enforceability of arbitration clauses inform decisions interpreting the enforceability of forumselection clauses. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974); Aggarao, 675
F.3d at 366 n.9.
The forum-selection clause in this case is at once mandatory and not prima facie
unreasonable. The Agreement states that its “validity, construction, and effect shall be governed
by the laws of the State of Michigan applicable to agreements wholly performed therein.” Doc.
No. 1-6 § 12(f), at 7. The language that the action “shall be” instituted in the specified Michigan
courts is mandatory. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26,
35 (1998) (citation omitted) (“[T]he mandatory ‘shall’ . . . normally creates an obligation
impervious to judicial discretion.”); Rector v. Approved Fed. Sav. Bank, 265 F.3d 248, 255 (4th
Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted) (“[T]he
Supreme Court has noted time and again [that] [t]he word shall is ordinarily the language of
command.”); Black’s Law Dictionary 1499 (9th ed. 2009) (defining shall as “has a duty to; more
broadly, is required to” and noting that this “is the mandatory sense that drafters typically intend
and that courts typically uphold”); Shall, Merriam Webster.com, http://www.merriamwebster.com/dictionary/shall (last visited Sep. 26, 2013) (pertinently defining shall as “used to
express a command or exhortation” and “used in laws, regulations, or directives to express what
is mandatory”).3 Furthermore, Plaintiff’s claims, which sound in breach of contract, fall within
The Fourth Circuit has held that a forum-selection clause stating that “either party shall be free to pursue
its rights . . . [in state court]” did not deprive the federal court of jurisdiction, reasoning that the phrase
“shall be free” was “scarcely, if any, more restrictive than the word ‘may.’” See IntraComm, Inc. v. Bajaj,
the scope of the forum-selection clause, which applies to “[a]ll disputes under [the] Agreement.”
Doc. No. 1-6 § 12(f), at 7; cf. Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367, 371,
381–82 (1st Cir. 2011) (concluding that language “arising under” generally covers both claims
based on the agreement per se and fraudulent inducement claims); Medtronic AVE Inc. v. Cordis
Corp., 100 F. App’x 865, 868 (3rd Cir. 2004) (noting the “expansive interpretation” the Third
Circuit gives the phrase “arising from”); Long v. Silver, 248 F.3d 309, 317 (4th Cir. 2001) (citing
Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1463–64 (9th Cir. 1983))
(rejecting Ssangyong’s restrictive interpretation that the language “arising under the Agreement”
covers only disputes relating to the interpretation and performance of the contract itself); Peoples
Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 811 n.1, 813–14 (4th Cir. 1989)
(holding that a relatively narrow arbitration clause covered a claim of fraud in the inducement).
Nor has Plaintiff made a prima facie showing that the forum-selection clause is unreasonable.
The clause simply requires the dispute to be heard in the state or federal courts of Wayne County
(whose seat is Detroit) and interpreted in accordance with Michigan law.
Plaintiff raises two primary arguments against the enforcement of the forum-selection
clause, both of which lack merit. First, Plaintiff asserts that the clause applies to only some of the
claims at issue. But the allegations in Complaint and the Agreement’s literal language refute this
assertion. Counts II – IV embody defenses to the enforcement of the Agreement. Although Count
I refers to fraud that allegedly took place before Shider executed the Agreement, Plaintiff alleges
that “Shider relied on these false statements to his detriment when he entered into the [Purchase
Agreement] . . . .” Doc. No. 1 ¶ 51, at 9. Thus, the nexus between the alleged fraud and the
Agreement is unmistakable. Moreover, as noted, federal circuit courts have consistently held that
492 F.3d 285, 290 (4th Cir. 2007). The forum-selection clause in this case, by contrast, states that the
action “shall be” brought in Michigan. Therefore, IntraComm is inapposite.
language similar to the language at issue encompasses fraud claims. For its part, Count V relates
to derivative royalties that Defendants allegedly owe Plaintiff from the continued sampling of
Shider’s songs. Although Plaintiff argues that the Agreement does not cover this claim, the
breadth of its terms suggests otherwise. See Doc. No. 1-6 §§ 1, 11. Even if Plaintiff’s derivative
works claim did not arise under the Agreement per se, the Court would still enforce the forumselection clause “to give [it] effect with respect to the related contract claims and avoid rendering
it meaningless through artful pleading.” Capital Source Fin., LLC v. Delco Oil, Inc., 625 F.
Supp. 2d 304, 318 (D. Md. 2007) (citation omitted). Therefore, the clause applies to all of
Second, Plaintiff argues that Defendants procured the Agreement “‘by fraud, undue
influence, or overweening bargaining power.’” Doc. No. 17 at 9 (quoting Bremen, 407 U.S. at
12–13). In essence, Plaintiff asserts that Defendants manipulated Shider into entering an unfair
deal and that Shider’s cocaine addiction, alcohol addiction, and brain tumor left him mentally
incapacitated and, hence, unable to reach a meeting of the minds with Defendants. However,
Bremen’s full rule of law is that forum-selection clauses “are prima facie valid and should be
enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the
circumstances.” Bremen, 407 U.S. at 10 (emphasis added). Therefore, Plaintiff bears the burden
of showing that Defendants procured the Agreement through fraud or undue influence such that
enforcing the Agreement would be unreasonable. Yet Plaintiff’s allegations and declarations do
not fully support the inference that Shider was incapacitated when he entered into the
Agreement. For instance, Shider signed the contract approximately nine months before he passed
away. Furthermore, assuming Shider was incapacitated when he signed the Agreement, there is
no indication that Defendants knew of the same. Indeed, in addition to Shider’s signature, the
Agreement contains an “Assent and Confirmation” section in which Plaintiff and the Shiders’
children affirm, inter alia, that Shider was “in a healthy state of mind” and that he understood,
approved, and agreed to be bound by all the terms of the Agreement. Doc. No. 1-6 at 9–10.
Additionally, the overall relevance of some of Plaintiff’s allegations about fraud is unclear. To
the extent there are issues of fraud to be determined, they can be determined in the appropriate
For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss. A
separate Order follows.
September 27, 2013
Alexander Williams, Jr.
United States District Judge
Plaintiff also suggests that Defendants might have doctored the Agreement. This argument is too
speculative to prevent enforcement of the forum-selection clause. Furthermore, there is no indication that
the forum-selection clause itself is doctored. Such issues can be raised and addressed in the appropriate
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