Provanzano v. Parker View Farm, Inc. et al
Filing
31
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "In accordance with the foregoing, 1) defendants motion to reconsider (Docket No. 24 ) is ALLOWED pursuant to Rules 59(e) or 60(b), and 2) Upon reconsideration, defendants renewed motion to dismiss (Docket No. 26 ) is ALLOWED, and 3) Defendants original motion to dismiss (Docket No. 3 )is DENIED as moot. So ordered." (Moore, Kellyann)
United States District Court
District of Massachusetts
________________________________
)
JOSEPH S. PROVANZANO,
)
Plaintiff,
)
)
v.
)
Civil Action No.
)
10-11893-NMG
PARKER VIEW FARM, INC., ROBERT
)
M. TURNER, LM TURNER STABLES,
)
INC., and BRIDGETTE M. PARKER,
)
Defendants.
)
________________________________ )
MEMORANDUM AND ORDER
GORTON, J.
The plaintiff, Joseph S. Provanzano, brings this action
against Bridgette M. Parker, individually and doing business as
Parker View Farm, Inc. (“Parker”), and Robert M. Turner,
individually and doing business as LM Turner Stables, Inc.
(“Turner”), for violations of the Massachusetts Consumer
Protection Act, M.G.L. c. 93A (“Chapter 93A”).
Pending before
the Court are defendants’ motion to reconsider and renewed motion
to dismiss.
I.
Background
A.
Factual Background
Provanzano, a Massachusetts resident, owns four horses: Mild
Emotion, Sandra’s Dream, Joe’s Boy and Ms. Martha Anne.
In 2006,
Mild Emotion suffered an eye injury while she was being boarded
and trained at Turner Stables in New Hampshire.
-1-
After the mare
was injured, Turner recommended to Provanzano that she be sent to
Parker, who owns a horse farm in Kentucky, for surgery and to be
boarded in the event that she needed additional treatment.
That
year Provanzano agreed to board Mild Emotion at Parker’s facility
in Kentucky for $350 per month (“the Boarding Contract”).
Mild
Emotion was boarded at the facility during the succeeding four
years and, while there, produced three foals: Sandra’s Dream,
Joe’s Boy and Ms. Martha Anne.
four horses to Provanzano.
In May, 2010, Parker returned all
Beyond that, the parties dispute the
facts.
At some point after the parties entered into the Boarding
Contract, they apparently entered into a Breeding and Transported
Semen Agreement (“the Breeding Contract”), whereby Parker agreed
to breed Mild Emotion in exchange for Provanzano’s payment of a
$1,500 stud fee (“the stud fee”).
The contract was signed by
Parker on May 7, 2007, and by Provanzano on February 18, 2008.
It included a Kentucky choice of law provision and a Woodford
County, Kentucky forum selection clause (“the forum selection
clause”).
Provanzano did not object to or delete either
provision but submits that he handwrote under the choice of law
provision: “owner’s responsibilities will be governed by
Massachusetts law.”
When Parker received the signed contract
back from Provanzano, she crossed out his addendum.
Provanzano denies that he ever authorized Parker to breed
-2-
Mild Emotion and claims, to the contrary, that he clearly
instructed Parker not to breed the mare.
Provanzano alleges that
he was coerced into signing the Breeding Contract and that he
paid the stud fees under protest, fearful that if he did not, he
would never see his horses again.
Defendants deny any wrongdoing.
They acknowledge that
Provanzano did not sign the Breeding Contract until February 18,
2008, shortly before the first foal, Sandra’s Dream, was born,
but maintain that the parties had a prior understanding that
Parker was to breed Mild Emotion.
Defendants offer the following
evidence in support of their contention: 1) an invoice, dated
December 7, 2007, on which Provanzano wrote that he would love to
be there when Mild Emotion gives birth and 2) a letter and two
emails from Provanzano, dated October 17 and November 12, 2008,
and November 18, 2009, respectively, that express Provanzano’s
intention to sell the foals and are devoid of any indication that
the breeding was without permission.1
B.
Procedural History
Provanzano filed his complaint in the Massachusetts Superior
Court Department for Essex County in October, 2010, alleging that
the following acts of defendants constitute “unfair and deceptive
acts” in violation of Chapter 93A: 1) breeding Mild Emotion
1
Provanzano responds that those communications were “to
insure that the horse being impregnated was some sort of scheme”
but he does not elaborate upon his reasoning.
-3-
without authorization, 2) attempting to sell Mild Emotion and her
offspring without authorization, 3) unilaterally increasing
boarding fees, 4) charging other unauthorized fees and
5) refusing to return Provanzano’s property.
Defendants timely
removed the case to this Court and filed a motion to dismiss
which Provanzano opposed.
In December, 2010, defendants replied
to Provanzano’s opposition and Provanzano sur-replied in January,
2011.
Later that month, defendants concluded the briefing by
responding to Provanzano’s sur-reply.
In June, 2011, this Court issued a Memorandum and Order
denying defendants’ motion to dismiss (“the Memorandum and
Order”).
Pending before the Court are defendants’ motion to
reconsider the Memorandum and Order and their renewed motion to
dismiss.
II.
Legal Analysis
A.
Motion to Reconsider
1.
Standard
The Court has “substantial discretion and broad authority to
grant or deny” a motion for reconsideration made pursuant to Fed.
R. Civ. P. 59(e) or 60(b). Ruiz Rivera v. Pfizer Pharm., LLC, 521
F.3d 76, 81 (1st Cir. 2008).
A motion for reconsideration will
be allowed if the movant shows a manifest error of law, newly
discovered evidence or that the Court has made an error “not of
reasoning but apprehension.” Id.
-4-
2.
Application
On November 11, 2010, defendants moved to dismiss the
complaint on the grounds that 1) they do not have any “general
and systematic contacts” with Massachusetts that would justify
the exercise of general jurisdiction and 2) the Court does not
have specific jurisdiction over them because the cause of action
did not arise in Massachusetts and they did not purposefully
avail themselves of the privileges of state law.
Notably,
defendants did not mention the forum selection clause in the
Breeding Agreement nor suggest that the Court should decline to
exercise jurisdiction on that basis.
For that reason, the Court
did not consider it in ruling on the motion to dismiss.
In their motion to reconsider, defendants acknowledge their
omission but point out that they did raise the forum selection
clause argument in a reply brief which was attached as an exhibit
to a different motion and not filed separately with the Court.
Because defendants did not raise the argument in their motion to
dismiss, the Court was not required to assess it in the
Memorandum and Order and is under no obligation to consider it now.
The Court recognizes, however, that the crux of the dispute
between the parties is the alleged unauthorized breeding of Mild
Emotion and that to resolve that dispute the Court inevitably
must analyze the Breeding Agreement which contains a forum
selection clause.
Given the prominence of that issue in the
-5-
case, the Court will allow defendants’ motion for reconsideration
and consider defendants’ forum selection clause argument at this
time.
B.
Motion to Dismiss
1.
Standard
Normally on a motion to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating
that personal jurisdiction is authorized by the Massachusetts
long-arm statute, Mass. Gen. Laws ch. 223A, § 3 (“the
Massachusetts long-arm statute”), and is consistent with the Due
Process Clause of the United States Constitution. Astro-Med, Inc.
v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009).
By
signing a forum selection clause, however, a party to a contract
waives its right to challenge personal jurisdiction. Inso Corp.
v. Dekotec Handelsges, mbH, 999 F. Supp. 165, 166 (D. Mass. 1998).
A motion to dismiss based upon a forum selection clause is
treated as one alleging a failure to state a claim under Fed. R.
Civ. P. 12(b)(6). Silva v. Encyclopedia Britannica, Inc., 239
F.3d 385, 387 (1st Cir. 2001).
Accordingly, it can be raised at
any time before disposition on the merits and is preserved
against waiver prior to that time. Id. at 388.
A forum selection clause “does not divest a court of [the]
jurisdiction that it otherwise retains,” rather, it
constitutes a stipulation in which the parties join in
asking the court to give effect to their agreement by
-6-
declining to exercise its jurisdiction.
Id. at 389 n.6.
As a practical matter, however, a valid forum
selection clause carries with it a “strong presumption of
enforceability” and should be enforced unless the resisting party
can show that enforcement would be unreasonable or would
contravene a strong public policy of the forum in which suit is
brought. Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 18
(1st Cir. 2009).
2.
Application
Before a court considers whether to enforce a forum
selection clause, it must first decide a few threshold matters,
such as whether 1) the parties entered into a valid contract of
which the forum selection clause was an agreed-to provision,
2) the clause is mandatory and 3) the clause governs the claims
asserted in the lawsuit.
If the Court answers all of those
questions in the affirmative, it will move on to assess whether
the forum selection clause should be enforced.
a.
The parties entered into a valid contract
with a forum selection clause
Sitting in diversity, this Court will apply Massachusetts
law to determine whether the parties entered into a contract to
breed Mild Emotion. Erie Railroad Co. v. Thompkins, 304 U.S. 64
(1938).
Under Massachusetts law, a contract is formed if the
parties 1) agree on all of the material terms, 2) express the
present intention to be bound by the agreement and 3) exchange
-7-
sufficient consideration. Situation Mgmt. Sys., Inc. v. Malouf,
Inc., 724 N.E.2d 699, 703 (Mass. 2000).
In this case, the parties entered into a valid breeding
contract.
The Breeding Contract contained the names of the
horses to be bred, the breeding fee, the payment method and the
breeding season so it was not indefinite.
Both parties signed it
and thereby expressed their intention to be bound.
Valid
consideration was exchanged: Provanzano paid the stud fee and
Parker View Farms “provid[ed] fresh cooled semen for said mare,”
pursuant to the contract, a fact that even Provanzano does not
dispute.
Nor can he: Sandra’s Dream, Joe’s Boy and Ms. Martha
Anne are living proof.
Provanzano claims that he was coerced into signing the
agreement “by duress, threats and/or fraud.”
In essence, he
suggests that the defendants held Mild Emotion hostage and
threatened to sell her if Provanzano did not sign the breeding
agreement and pay invoices past due.
The Court is unpersuaded.
One would imagine that Provanzano, an attorney by trade, would
have alerted authorities or taken legal action in the event that
he was being extorted.
His extortion claim is further belied by
his own words: in a series of emails and handwritten letters to
Parker View Farm between January, 2007, and October, 2008,
Provanzano expressed his enthusiasm about Mild Emotion’s breeding
and his desire to sell the mare.
-8-
In addition, Provanzano claims that his signing of the
Breeding Contract on February 18, 2008, after Mild Emotion was
impregnated, renders the contract void.
He does not support his
claim with any precedent and, indeed, there is none.
Other
evidence, including the January 1, 2007, message Provanzano
included with the December, 2007, invoice, confirms the existence
of a previous oral contract between the parties to breed Mild
Emotion.
That oral contract was not voided by the parties’ later
decision to reduce that contract to writing. See Restatement
(Second) of Contracts § 27.
Once the parties signed the Breeding
Contract, their rights and obligations under the initial oral
contract became governed by the written Breeding Contract. See
id. § 27 cmt. d.
Finding that the parties entered into a valid contract, the
Court proceeds to determine whether the forum-selection clause
was an agreed-to provision of that contract.
The forum selection
clause in the Breeding Contract reads:
This agreement shall be governed by the laws of the State
of Kentucky, and the venue shall be in Woodford County.
Provanzano did not delete that provision but submits that he
handwrote: “owner’s responsibilities will be governed by
Massachusetts law.”
When Parker received the signed contract
back from Provanzano, she deleted Provanzano’s note.
Provanzano argues that his modification to the contract
voided the forum selection clause or, in the alternative, voided
-9-
the entire contract because it shows that there was no “meeting
of the minds.”
Neither argument has merit.
First, Provanzano’s
modification arguably impacts the choice of law provision, i.e.
that the agreement is governed by the laws of Kentucky, but is
not inconsistent with the forum selection provision, i.e. that
the venue shall be a particular county in Kentucky.
Nothing
prevents a Kentucky court from applying Massachusetts law.
Furthermore, the fact that Provanzano noted his objection to the
choice of law provision does not support but rather undercuts his
“meeting of the minds” argument: it shows that he carefully
considered each provision and signed the contract anyway.
Therefore, the Breeding Agreement is a valid contract which
contains a forum selection clause.
b. The forum selection clause is mandatory
When a defense based upon a forum selection clause is
properly before the Court, a threshold question is whether the
clause is permissive or mandatory. Rivera, 575 F.3d at 17.
Permissive clauses, also known as “consent to jurisdiction”
clauses, authorize jurisdiction in a designated forum but do not
prohibit litigation elsewhere. Id.
In contrast, mandatory forum
selection clauses contain clear language indicating that
jurisdiction and venue are appropriate exclusively in a
designated forum. Id.
The use of words such as “will” or “shall”
demonstrate parties’ exclusive commitment to the named forum.
-10-
Summit Packaging Sys., Inc. v. Kenyon & Kenyon, 273 F.3d 9, 12
(1st Cir. 2001).
The forum selection clause in the Breeding Contract reads:
This agreement shall be governed by the laws of the
State of Kentucky, and the venue shall be in Woodford
County.
(emphasis added).
The use of the word “shall” and the absence of
any permissive language makes clear that the forum selection
clause is mandatory.
The next question is whether it covers
plaintiff’s claims.
c.
The clause governs some, but not all, of
plaintiff’s claims
Before a court may consider whether to enforce a forum
selection clause, first it must decide whether the clause governs
the claims asserted in the lawsuit. See Huffington v. T.C. Grp.,
LLC, 637 F.3d 18, 21 (1st Cir. 2011).
Provanzano devotes the
majority of the Complaint to accusations that defendants bred
Mild Emotion without his consent, a claim that is clearly within
the scope of the forum selection clause of the Breeding Contract.
Nevertheless, Provanzano also alleges other Chapter 93A
violations such as attempting to sell Mild Emotion and her
offspring without authorization, unilaterally raising boarding
fees, charging unauthorized fees and refusing to return
Provanzano’s property.
Those claims arguably arise out of the
Boarding Contract which presumably did not have a forum selection
-11-
clause.2
The forum selection clause in the Breeding Contract
purports to govern only that agreement (not, for example, “this
and all previous agreements” or “all claims relating to this
agreement”), so the remaining claims are not covered by the forum
selection clause.
d.
Enforcing the forum selection clause would
not be unreasonable
The final two issues are whether enforcing the forum
selection clause would be unreasonable and, if not, whether the
Court should dismiss all of plaintiff’s claims or only those
claims covered by the forum selection clause.
A mandatory forum
selection clause carries a “strong presumption of enforceability”
that can be overcome only by a clear showing that enforcement
would be unreasonable or contrary to the public policy of the
forum. Rivera, 575 F.3d at 18 (citing M/S Bremen v. Zapata OffShore Co., 407 U.S. 1 (1972)).3
It may be unreasonable to
enforce a forum selection clause if 1) a party was coerced into
signing it, 2) the party was in an inferior bargaining position
when it was negotiated, or 3) enforcing the clause would make it
2
Both parties acknowledge that they entered into a Boarding
Contract but do not specify whether it was oral or written.
3
Happily, the Court need not address the Erie question of
whether to treat the issue of the enforceability of a forum
selection clause as “procedural” (and look to federal law) or as
“substantive” (and look instead to state law) because, in
determining enforceability, both Massachusetts and Kentucky
follow the federal common-law standard promulgated by the Supreme
Court in M/S Bremen.
-12-
practically impossible for that party to litigate its claims. See
Somerville Auto Transp. Serv., Inc. v. Auto. Fin. Corp., 691 F.
Supp. 2d 267, 272-74 (D. Mass. 2010).
Applying those factors to this case, the Court is not
persuaded that it would be unreasonable to enforce the forum
selection clause.
As an experienced attorney, Provanzano cannot
claim an inferior bargaining position.
His handwritten
modification indicates that he read the forum selection clause so
he cannot object to it on the ground of unfair surprise.
His
incredible allegations of coercion and blackmail are untenable.
While it may be inconvenient for Provanzano to litigate his
claims in Kentucky,
[t]he hardship caused by the move to a new forum must be
much more than mere inconvenience; it must amount to
practical impossibility,
for a court to decline enforcement on that basis. Noel v. Walt
Disney Parks and Resorts U.S., Inc., No. 10-40071-FDS, 2011 WL
1326667, at *8 (D. Mass. March 31, 2011) (citing Huffington, 637
F.3d at 24).
Provanzano has shown no such hardship.
Finally,
the cornerstone of the dispute between the parties is the alleged
unauthorized breeding of Mild Emotion.
Given the prominence of
that issue, it would be unfair to force defendants to litigate it
in Massachusetts when they specifically included a forum
selection clause to avoid such an eventuality.
Nor would enforcing the clause contravene Massachusetts
-13-
public policy.
Massachusetts has no special interest in
litigating Provanzano’s claims and there is no reason to believe
that Kentucky courts will not “provide an adequate remedy.”
Huffington, 637 F.3d at 25.
After all, Provanzano’s modification
to the choice of law clause, “owner’s responsibilities will be
governed by Massachusetts law,” if validated, will ensure that
his Chapter 93A claims are heard by the Kentucky court.
e.
All of plaintiff’s claims should be dismissed
Finding that enforcement of the forum selection clause would
not be unreasonable, the Court finally considers whether it
should dismiss all of plaintiff’s claims or only those covered by
the forum selection clause.
The First Circuit has not squarely
addressed the question of whether a Court should dismiss all of a
plaintiff’s tort claims pursuant to a forum selection clause
when, as here, two contracts, only one of which has a forum
selection clause, form the basis for those claims.
It has,
however, decided the similar issue of whether a Court should
dismiss a case pursuant to a forum selection clause when a
plaintiff’s tort claims arise from “the same operative facts” as
his parallel claims for breach of contract.
In such a
circumstance, the entire case is to be heard in the forum
selected by the contracting parties. Lambert v. Kysar, 983 F.2d
1110, 1121-22 (1st Cir. 1993).
To hold otherwise, the First
Circuit has declared, would
-14-
reward attempts to evade the enforcement of forum
selection agreements through artful pleading of tort
claims in the context of a contract dispute,
id., and “ignore the fundamental principle of judicial economy,”
Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 17 (1st
Cir. 2009).
The same principle counsels the Court to dismiss all of
Provanzano’s claims here pursuant to the forum selection clause.
Provanzano cannot evade the forum selection clause to which he
agreed in writing by describing his claims as Chapter 93A
violations.
Furthermore, it would be a significant waste of
judicial resources to try the unauthorized breeding counts in
Kentucky and the remaining counts in Massachusetts.
ORDER
In accordance with the foregoing,
1)
defendants’ motion to reconsider (Docket No. 24) is
ALLOWED pursuant to Rules 59(e) or 60(b), and
2)
Upon reconsideration, defendants’ renewed motion to
dismiss (Docket No. 26) is ALLOWED, and
3)
Defendants’ original motion to dismiss (Docket No. 3)
is DENIED as moot.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated November 7, 2011
-15-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?