Wake Plumbing and Piping, Inc. v. McShane Mechanical Contracting, Inc. et al

Filing 4

ORDER denying 15 Motion to Dismiss. The action is TRANSFERRED to the United States District Court for the Eastern District of Michigan, Southern Division. Signed by Chief Judge James C. Dever III on 6/21/2012. (Sawyer, D.)[Transferred from nced on 6/21/2012.]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5: 12-CV-150-D

WAKE PLUMBING AND PIPING, INC.,
Plaintiff,

v.
MCSHANE MECHANICAL
CONTRACTING, INC., and
TRAVELERS CASUALTY AND
SURETY COMPANY OF AMERICA,
Defendants.

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ORDER

Wake Plumbing and Piping, Inc., sued McShane Mechanical Contracting, Inc., ("MMCf')
and Travelers Casualty and Surety Company ofAmerica (collectively "defendants") in Wake County
Superior Court for breach of contract and enforcement ofpayment bond, and defendants removed
the case to this court. Defendants now seek to enforce the forum selection clause in a contract
between MMCI and Wake Plumbing and Piping, Inc., and ask the court to dismiss the action for
improper venue. See Fed. R. Civ. P. 12(b)(3). Under the forum selection clause, Wake Plumbing
and Piping, Inc., and MMCI "agree[d] that any action commenced to enforce any rights or
obligations under this Subcontract shall be commenced only in the state or federal court in
Michigan." [D.E. 16-1] at 7. MMCI is headquartered in Oakland County, Michigan, which is in the
Eastern District of Michigan. See 28 U.S.C. § 102(a)(1).
The forum selection clause is valid and enforceable, and applying it is reasonable.

See,~,

Albemarle Com. v. Astra Zeneca UK Ltd., 628 F.3d 643,646,649-52 (4th Cir. 2010); Baker v.
Adidas Am.. Inc., 335 F. Appx. 356, 358, 360-61 (4th Cir. 2009) (per curiam) (unpublished);
Greenberg v. Giannini, 140 F.2d 550, 553 (2d Cir. 1944); Allegiance Capital Com. v. Great

Canadian Gaming com., No. Civ. A.3-03-CV-751-R, 2004 WL 2203256, at *2-3 (N.D. Tex. Sep.
30, 2004) (unpublished). The court has discretion whether to dismiss the action for improper venue
(as MMCI requests) or to transfer the action to the United States District Court for the Eastern
District of Michigan. See, ~ 28 U.S.C. §§ 1404(a), 1406(a); Porter v. Groat, 840 F.2d 255, 258
(4th Cir. 1988); Jenkins v. Albuquerque Lonestar Freightliners, LLC., 464 F. Supp. 2d 491,493-95
(E.D.N.C.2006). In the interest ofjustice, the court transfers the action to the United States District
Court for the Eastern District of Michigan, Southern Division. See 28 U.S.C. § 102(a)(1). Thus,
defendants' motion to dismiss [D.E. 15] is DENIED, but the action is TRANSFERRED to the
United States District Court for the Eastern District of Michigan, Southern Division.
SO ORDERED. This ..1.lday of June 2012.

Chie United States District Judge

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