Wizie Com LLC v. Webjet Marketing North America LLC
OPINION & ORDER Denying Plaintiff's Motion to Transfer Case from Forum Non Conveniens (Dkt. 7 ); Denying Plaintiff's Motion to Remand (Dkt. 8 ); andGranting Defendant's Motion to Transfer (Dkt. 21 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
WIZIE COM LLC,
Case No. 17-cv-11920
Hon. Mark A. Goldsmith
NORTH AMERICA, LLC,
OPINION & ORDER
DENYING PLAINTIFF’S MOTION TO TRANSFER CASE FOR FORUM NON
CONVENIENS (Dkt. 7); DENYING PLAINTIFF’S MOTION TO REMAND (Dkt. 8); and
GRANTING DEFENDANT’S MOTION TO TRANSFER (Dkt. 21)
This matter is before the Court on Plaintiff Wizie Com LLC’s (“Wizie”) Motion to Transfer
Case for Forum Non Conveniens (Dkt. 7); Wizie’s Motion to Remand this case back to the
Oakland County Circuit Court (Dkt. 8); and Defendant Webjet Marketing North America LLC’s
(“Webjet”) Motion to Transfer this case to the U.S. District Court for the Middle District of Florida
(Dkt. 21). Oral argument on Wizie’s motions was held on September 7, 2017. Following the
hearing, Webjet filed its motion to transfer.1 For the reasons that follow, the Court denies Wizie’s
motions and grants Webjet’s motion to transfer.
Briefing on Webjet’s motion is complete. Because oral argument will not aid the decisional
process, the motion will be decided based on the parties’ briefing. See E.D. Mich. LR 7.1(f)(2);
Fed. R. Civ. P. 78(b).
In December 2012, Wizie entered into an Internet Booking Engine Services Agreement
(the “Agreement”) with Defendant Webjet Marketing North America LLC (“Webjet”). Pl’s Br.
in Supp. of Mot. to Transfer at 1 (Dkt. 7). In relevant part, the Agreement provides:
14.2. Governing Law, Jurisdiction and Venue. This Agreement will be governed
by, construed, interpreted, and applied in accordance with the laws of the State of
Michigan (excluding its body of controlling conflicts of laws). . . .
14.3. Dispute Resolution. Any dispute, claim or controversy arising out of or
relating to the subject matter of this Agreement shall be settled through binding
arbitration before a single arbitrator administered by the American Arbitration
Association in accordance with its then current Commercial Arbitration Rules. The
arbitrator shall have jurisdiction to award, and shall award, the prevailing party its
reasonable attorneys’ fees, costs and expenses. All arbitration proceedings shall be
held in Michigan, U.S.A. Judgment on any arbitration award may be entered in
any court having jurisdiction over the subject matter or the parties.
Notwithstanding the foregoing, this provision shall not preclude either party from
seeking temporary, provisional, or injunctive relief from any State or Federal court.
Internet Booking Engine Servs. Agreement, Ex. 1 to Pl’s Mot. to Transfer, at 11-12 (cm/ecf page)
(Dkt. 7-1). A dispute later arose regarding the terms of the Agreement, and in January 2017 the
dispute was submitted to arbitration in Bloomfield Hills, Michigan. Pl’s Br. in Supp. of Mot. to
Transfer at 1. On April 21, 2017, the arbitrator awarded Webjet $379,552.02. Pl’s Br. in Supp.
of Mot. to Remand at 1 (Dkt. 8).
Webjet sought to confirm the award in the U.S. District Court for the Middle District of
Florida on April 25, 2017.2 On May 11, 2017, Wizie filed a separate action to vacate the award in
the Oakland County Circuit Court. Compl. at 4 (Dkt. 4). Webjet timely removed the Oakland
County action to this Court. See Notice of Removal (Dkt. 1).
Wizie now seeks to have this action returned to the Oakland County Circuit Court, whether
by transfer or remand. Webjet seeks to have the case transferred to the Middle District of Florida.
Wizie states in its motion to transfer that Webjet filed a petition to confirm the award in Florida
on May 1, 2017. Pl’s Mot. to Transfer at 2. While the summons was issued to Wizie on May 1,
2017, Webjet filed the petition on April 25, 2017. See Webjet Mktg. N. Am., LLC, v. Wizie.com,
LLC, No. 8:17-cv-00969-MSS-TGW (M.D. Fla.).
Motion to Transfer Based on Forum Non Conveniens
The Court will first address Wizie’s motion for transfer on grounds of forum non
conveniens.3 Under a traditional forum non conveniens analysis, “a district court . . . must evaluate
both the convenience of the parties and various public-interest considerations.” Atlantic Marine
Const. Co., Inc. v. U.S. Dist. Ct. for W. Dist. of Texas, 134 S. Ct. 568, 581 (2013). However, the
presence of a forum-selection clause in the parties’ contract changes this analysis, as “a valid
forum-selection clause should be given controlling weight in all but the most exceptional cases.”
Id. (internal quotations omitted).
Wizie argues that the Agreement contains a contractual forum selection for the Oakland
County Circuit Court as the exclusive authority to enter a judgment on the arbitrator’s award. Pl’s
Br. in Supp. of Mot. to Transfer at 4 (Dkt. 7). Section 14.2 of the Agreement provides that
Michigan law is to govern, and Wizie contends that this means that the Michigan Uniform
Arbitration Act – which provides that an agreement to arbitrate in Michigan confers “exclusive
jurisdiction” on the Michigan circuit courts to enter judgment on an award, Mich. Comp. L. Ann.
§§ 691.1681(c), 691.1706(2) – controls. Pl’s Br. in Supp. of Mot. to Transfer at 3-4. Essentially,
“by agreeing that Michigan law governed the contract, the parties selected Michigan as the
exclusive forum for entering judgment on the arbitration award.” Resp’t’s Mot. to Dismiss, Webjet
Mktg. N. Am., LLC v. Wizie.com LLC, No. 8:17-cv-00969-MSS-TGW, Ex. F to Pl’s Mot. to
Remand, at 6 (Dkt. 8-6).
At different times in its briefing, Wizie argues that the Court should “remand this case to the
Michigan state court on the ground of forum non conveniens,” Pl’s Br. in Supp. of Mot. to Transfer
at 3, and also “dismiss it for forum non conveniens,” id. at 4. This court does not have the authority
to transfer a case to a Michigan state court, see, e.g., 14D Wright et al., Fed. Prac. & Proc. § 3828
(4th ed. 2017), and will therefore interpret Wizie’s requested relief as dismissal.
Wizie’s argument is unpersuasive. In interpreting a contract, the duty of the Court is to
determine the intent of the contracting parties. Quality Prods. & Concepts Co. v. Nagel Precision,
Inc., 666 N.W. 2d 251, 259 (Mich. 2003). The Court gives the words of a contract their plain and
ordinary meanings, and “[i]f the language of the contract is unambiguous, we must enforce the
contract as written.” Bank of America, NA v. First American Title Ins. Co., 878 N.W.2d 816, 821
(Mich. 2016). Here, the Agreement provides that “[j]udgment on any arbitration award may be
entered in any court having jurisdiction over the subject matter or the parties.” Agreement, Ex. 1
to Pl’s Mot. to Transfer, at 12 (cm/ecf page). The use of the phrase “any court” evidences an intent
to allow enforcement in multiple jurisdictions. Adopting Wizie’s position would require an
intellectual contortion – that the parties provided for liberal selection of an enforcement forum, but
envisioned the possibility that Michigan law would be amended to restrict the parties solely to a
Michigan circuit court. Such a reading is not sensible.
To the extent Wizie may be arguing that the Michigan statute restricting the enforcement
forum to a Michigan circuit court must be applied regardless of the parties’ intent, that argument
founders on preemption principles. Federal law generally respects the parties’ decision on the
rules governing their arbitration. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S.
52, 53-54 (1995) (“[T]he central purpose of the Federal Arbitration Act [is] to ensure that private
agreement to arbitrate are enforced according to their terms.”). State law that contradicts that
intent will be overridden on preemption grounds. See, e.g., Alphagraphics Franchising, Inc. v.
Whaler Graphics, Inc., 840 F. Supp. 708, 710 (D. Ariz. 1993) (finding that the Michigan Franchise
Investment Law was preempted by the Federal Arbitration Act (“FAA”) because the state statute
“imposes limitations on the method and manner by which the parties agreed to arbitrate their
disputes” and “the FAA’s primary purpose is to ensure that arbitration agreements are enforced
according to their terms”). Thus, to the extent the Michigan statute might be interpreted as
requiring exclusive enforcement in Michigan circuit courts of arbitration awards rendered in
Michigan, the statute cannot be enforced.
Having determined that the Oakland County Circuit Court is not the exclusive enforcement
forum, the Court now evaluates Wizie’s forum non conveniens motion. Wizie has not provided
the Court with any analysis of how the Court should weigh the various factors relating to a forum
non conveniens motion, opting instead to rely on their forum selection clause argument under
Atlantic Marine. Pl’s Reply Br. at 1 n. 1 (Dkt. 14). Webjet argues that Wizie has not “offer[ed]
any substantive reasons why it would be more convenient to litigate the issues in a state court 18
miles away,” Def’s Br. in Opp. to Mot. to Transfer at 10 (Dkt. 11), and notes that the burden is on
Wizie to prove that another forum is more appropriate, id. at 9 (citing Amphion, Inc. v. Buckeye
Elec. Co., 285 F. Supp. 2d 943, 946 (E.D. Mich. 2003)).
The factors that guide a district court’s discretion in determining whether to grant a motion
based on forum non conveniens relate to both the private interests of the parties and the public
interest. Atlantic Marine, 134 S. Ct. at 581. Here, the factors relating to the parties’ private
interests – “relative ease of access to sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of
view of premises, if view would be appropriate to the action; and all other practical problems that
make trial of a case easy, expeditious and inexpensive” -- do not weigh in Wizie’s favor. Id. at
581 n. 6 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6 (1981)). As the distance
between the Eastern District of Michigan and the Oakland County Circuit Court is minimal, the
parties will have no more ease accessing sources of proof or witnesses here rather than in the
county circuit court. Further, because the action here is for vacation of the award – which
presumably will present exclusively issues of law – it appears unlikely that any issue of
convenience pertaining to discovery and fact finding will come into play.
Similarly, the 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” – are either neutral
or weigh against Wizie. Id. (quoting Reyno, 454 U.S. at 241 n. 6). Neither party has addressed
the court congestion in this court as compared to the Oakland County Circuit Court, and the Court
therefore declines to weigh this factor. See Viron Intern. Corp. v. David Boland, Inc., 237 F. Supp.
2d 812, 819 (W.D. Mich. 2002) (declining to consider relative congestion of the courts in its
transfer analysis where neither party advanced an argument before the court); see also Steelcase,
Inc. v. Smart Techs., Inc., 336 F. Supp. 2d 714, 723 (W.D. Mich. 2004) (declining to consider
public interest factors where the parties did not cite any public interest factors bearing on the
court’s transfer decision). Both this Court and the Oakland County Circuit Court are “home” for
the “localized controvers[y],” as they are both located in southeast Michigan. Similarly, this Court
is familiar with Michigan law such that it is “a forum that is at home with the law.” All of the
factors taken together do not demonstrate that this Court is an inconvenient forum when compared
to the Oakland County Circuit court. Wizie bears the burden of showing that “fairness and
practicality strongly favor” the alternative forum, see Amphion, 285 F. Supp. 2d at 9464; it has not
made such a showing here.
Accordingly, Wizie’s motion for transfer based on forum non conveniens is denied.
Although the Amphion court evaluated a motion to transfer venue pursuant to 28 U.S.C. §
1404(a), the Supreme Court has made clear that “Section 1404(a) is merely a codification of the
doctrine of forum non conveniens for the subset of cases in which the transferee forum is within
the federal court system; in such cases, Congress has replaced the traditional remedy of outright
dismissal with transfer.” Atlantic Marine, 134 S. Ct. at 580.
Motion to Remand
Wizie seeks remand to the Oakland County Circuit Court on the grounds that the amount–
in-controversy requirement of 28 U.S.C. § 1332(a) has not been met. Pl’s Mot. to Remand at 2
(Dkt. 8). Wizie claims that because it is seeking to vacate an arbitration award, the amount in
controversy is zero dollars and therefore does not exceed the $75,000 minimum. Id.
Webjet responds that the amount in controversy is the amount of the award. See Ford v.
Hamilton Invs., Inc., 29 F.3d 255, 260 (6th Cir. 1994) (finding no diversity jurisdiction where
plaintiff sought “the vacation of an award that fell short of the jurisdictional amount by almost
$20,000”); see also Am. Bankers Ins. Co. of Fla. v. Nat’l Cas. Co., No. 2:08-cv-13522, 2009 WL
257699 (E.D. Mich. Feb. 3, 2009) (following Ford and finding that where a party seeks to confirm
an arbitration award, the amount in controversy is the amount of the award sought to be confirmed).
The amount of the award Wizie seeks to vacate is $379,552.02, well above the $75,000 minimum.
Def’s Resp. in Opp. to Mot. to Remand at 1 (Dkt. 10). As there is also diversity of citizenship
between the parties, this Court has the authority to exercise jurisdiction over the dispute. Id.
Wizie nonetheless argues that the cases cited by Webjet -- Ford, 29 F.3d 255, and American
Bankers, 2009 WL 257699 -- were originally filed in federal court. Pl’s Reply Br. at 1 (Dkt. 13).
Wizie points to Hurt v. Dow Chemical Co., 963 F.2d 1142 (8th Cir. 1992); First Guaranty Bank
& Trust Co. v. Reeves, 86 F. Supp. 2d 1147 (M.D. Fla. 2000); and Burns v. Windsor Ins. Co., 31
F.3d 1092 (11th Cir. 1994), to support its contention that diversity jurisdiction in removal cases is
narrower than in cases that were originally filed in federal court. Pl’s Reply Br. at 2.
Law in the Sixth Circuit is clear that “[i]n an action to vacate an arbitration award, the
amount in controversy is the amount of the arbitration award.” First Family Fin. Servs., Inc. v.
Mollett, No. 04-282-DLB, 2006 WL 695258, at *2 (E.D. Ky. Mar. 17, 2006).5 That rule makes
sense, because the party seeking vacation seeks to prevent entry of a judgment in the amount of
the award. Here, that amount well exceeds the $75,000 statutory minimum. The cases cited by
Wizie6 do not convince this Court to depart from the general rule that “a civil case brought in a
state court may be removed by a defendant to federal court if it could have been brought there
originally.” Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000) (citing 28 U.S.C.
Accordingly, Wizie’s motion to remand is denied.
Motion to Transfer to the Middle District of Florida
Webjet argues that this case should be transferred to the Middle District of Florida, so that
it may be consolidated with Webjet Marketing North America, LLC v. Wizie.com LLC, No. 8:17cv-00969-MSS-TGW (“the Florida Action”), which is currently pending before the Honorable
Mary S. Scriven in that district. Def’s Mot. to Transfer (Dkt. 21). Webjet filed a petition seeking
confirmation of the arbitration award in the Middle District of Florida on April 25, 2017 and served
Wizie on May 5, 2017 – six days before Wizie filed the instant case with the Oakland County
Circuit Court. Webjet argues that this case should be transferred to the Middle District of Florida
Where a petitioner seeks to reopen the arbitration, “the amount in controversy includes the matter
at stake in the arbitration.” Mitchell v. Ainbinder, 214 Fed. App’x 565, 566 (6th Cir. 2007); cf.
Ford, 29 F.3d at 260 (petitioner “never asked the district court to order that the arbitrators reopen
his claim against Hamilton Investments; all he sought from the district court was the vacation of
an award . . .”). Wizie has not asked the court to reopen arbitration. See Compl. at 4 (Dkt. 4).
In Hurt, 963 F. 2d 1142, 28 U.S.C. § 1441(b) prohibited the defendants from removing a case in
a jurisdiction where one defendant was a citizen. In Reeves, the court found jurisdiction lacking
in a removal action because the statutory minimum was only met when the amount claimed in a
counterclaim was considered. 86 F. Supp. 2d 1147. In Burns, 31 F.3d 1092, the court declined to
exercise jurisdiction where the plaintiff sought an amount less than the statutory minimum, but
admitted she may later amend her complaint to seek additional damages. None of these
circumstances is present here.
pursuant to the first-filed rule, as both this case and the Florida Action involve identical parties
and identical issues, and jurisdiction and venue are proper in the Middle District of Florida. Def’s
Mot. to Transfer at 2-3.7
In response, Wizie argues that the Federal Arbitration Act (the “FAA”) requires that both
cases be consolidated in the Eastern District of Michigan. Pl’s Resp. at 1-2 (Dkt. 24). The FAA
provides that “[i]f no court is specified in the agreement of the parties, then such application may
be made to the United States court in and for the district within which such award was made.” 9
U.S.C. § 9 (emphasis added). According to Wizie, venue is therefore proper only in the U.S.
District Court for the Eastern District of Michigan. Pl’s Resp. at 1-2. Wizie notes that it filed a
motion before the Florida court, requesting that the Florida Action be transferred to this Court in
light of Wizie’s argument regarding the FAA. Id. Wizie requests that this Court refrain from
addressing Webjet’s motion to transfer until the Florida court has decided Wizie’s motion. Id. at
The Florida court denied Wizie’s motion on October 6, 2017, because the Agreement
“includes a contrary, optional forum specification.” 10/6/2017 Order Denying Respondent’s
Motion for Court to Address Alternative Requested Relief in Motion to Dismiss for Forum Non
Conveniens or to Transfer Venue Pursuant to Contractual Choice of Forum (Dkt. 27).8 Thus,
Wizie’s request for a stay is moot.
Webjet quotes from two orders entered in the Florida Action – 8/24/2017 Order Denying Wizie’s
Motion to Dismiss for Forum Non Conveniens or to Transfer Venue Pursuant to Contractual
Choice of Forum (Dkt. 20); and 9/6/2017 Order Deferring Ruling on Webjet’s Motion to
Consolidate Cases and Denying as Moot Wizie’s Motion to Set a Hearing (Dkt. 22).
The Florida court also noted that the provision in the FAA “does not facially appear to be
mandatory” but noted that the court “need not reach this issue.” 10/6/2017 Order, n. 1.
To the extent that Wizie seeks a ruling from this Court on its argument rather than simply
a stay, the Court agrees with the Florida court’s determination that the FAA does not require this
case to be heard only in the Eastern District of Michigan. Notably, the FAA provision cited by
Wizie only makes the Eastern District an appropriate venue – not the exclusive one – even if the
parties’ agreement were interpreted as not specifying a court for enforcement of the award.
Regarding the transfer analysis, the Court agrees with Webjet. “The ‘first-filed’ or ‘firstto-file’ rule is ‘a well-established doctrine that encourages comity among federal courts of equal
rank. The rule provides that when actions involving nearly identical parties and issues have been
filed in two different district courts, the court in which the first suit was filed should generally
proceed to judgment.’” Nartron Corp. v. Quantum Research Grp., Ltd., 473 F. Supp. 2d 790, 795
(E.D. Mich. 2007) (quoting Zide Sport Shop of Ohio, Inc. v. Ed Tovergte Assocs., Inc., 16 F.
App’x 433, 437 (6th Cir. 2001)). In considering the application of the rule, the district court looks
at the chronology of the actions; the similarity of the parties involved; and the similarity of the
issues at stake. Id. “A court that has determined the first-to-file rule applies to a second-filed case
has discretion to transfer, stay, or dismiss the second case.” Drew Techs., Inc. v. Robert Bosch,
LLC, No. 11-15068, 2012 WL 314049, at *3 (E.D. Mich. Jan. 31, 2012).
There is no question that the Florida Action was filed first. The parties in both actions are
identical. Finally, both cases concern the validity of the award resulting from arbitration between
the parties. As the Florida court has already indicated a willingness to accept transfer of this action,
see 9/6/2017 Order at 4, the Court believes that transfer is appropriate. Webjet’s motion to transfer
this action to the Middle District of Florida is therefore granted.
For the foregoing reasons, Wizie’s motion to transfer for forum non conveniens (Dkt. 7)
and motion to remand (Dkt. 8) are denied; Webjet’s motion to transfer (Dkt. 21) is granted. The
Court directs the Clerk to transfer this action to the Middle District of Florida.
Dated: October 20, 2017
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on October 20, 2017.
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