SELECTIVE WAY INSURANCE COMPANY v. GLASSTECH, INC. et al
OPINION. Signed by Chief Judge Jerome B. Simandle on 5/17/2016. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SELECTIVE WAY INSURANCE
COMPANY, A/S/O J.E. BERKOWITZ,
HONORABLE JEROME B. SIMANDLE
No. 14-3457 (JBS/KMW)
GLASSTECH, INC., JOHN DOES 110, and ABC COMPANIES 1-10,
Steven A. Kluxen
ZIRULNIK, SHERLOCK & DEMILLE
1395 Yardville-Hamilton Square Road
Hamilton, N.J. 08691
Attorney for Plaintiff
William C. Mead, Jr.
LITCHFIELD CAVO LLP
1800 Chapel Avenue West
Cherry Hill, N.J. 08002
Attorney for Defendant
SIMANDLE, Chief Judge:
In this action, Plaintiff Selective Way Insurance Company
asserts, as subrogee of J.E. Berkowitz (collectively,
“Berkowitz” or “Plaintiff”), that Defendant Glasstech, Inc.’s
(hereinafter, “Defendant” or “Glasstech”) negligent
“troubleshooting” of Berkowitz’s glass annealing oven caused an
explosion, resulting in the substantial destruction of its
fabrication facility in New Jersey.
In connection with these
“troubleshooting” services, JEB accepted a “QUOTATION”
(hereinafter, the “Quotation”) that stated, in emphasized terms,
that “ALL ORDERS ARE SUBJECT TO THE TERMS AND CONDITIONS STATED
IN GLASSTECH’S GENERAL TERMS AND CONDITIONS OF SALE”
(hereinafter, the “General Terms” and together with the
Quotation, the “service agreement”). 1
Those General Terms
contained a forum-selection clause setting Toledo, Ohio as the
place where any litigation arising from the parties’ agreement
must be brought.
The present motions requires a determination
of whether the General Terms are enforceable as part of the
parties’ agreement, and secondly whether the Ohio forum
selection clause is enforceable and consonant with the statutory
transfer provisions of 28 U.S.C. § 1404(a).
At the outset of this litigation, Defendant, in turn, moved
to transfer this action to the Northern District of Ohio,
pursuant to the “mandatory” forum-selection provision of the
General Terms. 2
[See Docket Item 4.]
On November 21, 2014,
however, this Court found that undeveloped factual issues
The Court exercises subject matter jurisdiction over this
action pursuant to 28 U.S.C. § 1332.
2 As an alternative to transfer, Defendant sought to dismiss
Plaintiff’s claims as barred by the General Terms’ eighteen
month limitations period. Nevertheless, in light of the
unresolved factual issues concerning the applicability of the
General Terms, the Court did not reach Defendant’s alternative
concerning the scope of the parties’ service agreement placed
the existence and application of the General Terms “in
Selective Way Ins. Co. v. Glasstech, Inc.,
No. 14-3457, 2014 WL 6629629, at *5-*6 (D.N.J. Nov. 21, 2014)
(hereinafter, the “initial transfer decision”).
specifically, the Court confronted the parties’ sparsely
developed and conflicting positions that the General Terms
“constitute[d] a critical component of the [parties’] service
agreement” (a position advanced by Defendant) and that the
General Terms had no application to the parties’ relationship (a
position staked out by Plaintiff).
Id. at *5.
As a result, the
Court denied Defendant’s request to transfer, without prejudice
to renewal (under a summary judgment standard) upon conclusion
of pretrial factual discovery. 3
Id. at *6, *8.
Armed with a more robust factual record, Defendant now
moves once more to transfer this action to the Northern District
of Ohio under the forum selection clause of the General Terms. 4
[See Docket Item 23.]
Guided by the additional discovery,
The Court then considered whether the general transfer inquiry
(unabbreviated by any forum selection provision), 28 U.S.C. §
1404(a), supported Defendant’s position. Selective Way Ins.
Co., 2014 WL 6629629, at *7-*8. The Court found that “the
private and public interests weigh[ed],” based upon that record,
“heavily against transferring this litigation to the Northern
District of Ohio.” Id.
4 In the alternative to transfer, Defendant seeks summary
judgment on the grounds that the General Terms’ limitations
period bars Plaintiff’s claims. (See Def.’s Br. at 23-26; see
also Def.’s Reply at 7.)
Defendant takes the position that the General Terms
“unquestionably” apply to this litigation, because the factual
record reflects that Plaintiff accepted, wholesale, the service
terms proposed by Defendant.
Def.’s Br. at 3-7.)
(Def.’s Br. at 14-20; see also
In other words, Defendant claims that
Plaintiff accepted the Quotation subject to the “plainly
incorporated” and “commercially reasonable” provisions of the
(See Def.’s Reply at 3-7.)
As a result,
Defendant submits that this action should be transferred to the
Northern District of Ohio pursuant to “the mandatory forum
(Id. at 8.)
Plaintiff, by contrast, provides little, if any,
substantive response to Defendant’s positions on its receipt and
acceptance of the service agreement. 5
acknowledges that its Maintenance Manager, Michael Gazzara,
received an email containing the Quotation and General Terms and
responded in order to accept the terms provided by Defendant.
(See Pl.’s Opp’n at 1-2, 4-9.)
Nevertheless, Plaintiff advances
the view that the factual record contains no indication that it
manifested assent to the “restrictive” and “limited” forum
selection and limitations provisions.
(Id. at 2.)
then puts aside any enforceable forum selection clause, and
Indeed, in opposition to Defendant’s summary judgment motion,
Plaintiff amassed an incredibly limited factual record that
consists of little more than a legal brief.
submits that this action should remain in this forum for the
reasons expressed in the initial transfer decision.
(Id. at 1,
In addressing these competing positions, the Court
emphasizes, at the outset, that Plaintiff mounts no factual
challenge (genuine or otherwise) to the fact that Defendant
performed repair services in accordance with a service
Quotation, nor to the express incorporation of the General Terms
into the agreed-upon Quotation.
Indeed, Plaintiff admits nearly
each of Defendant’s statements of material fact.
Against that backdrop, the pending motion presents three
relatively straightforward issues.
First, the Court must
consider whether the undisputed factual record demonstrates that
Berkowitz agreed to be bound by the General Terms (inclusive of
its forum-selection provision).
Second, the Court must
determine the enforceability of the forum-selection clause, if
Finally, the Court must consider whether the circumstances
of this action (aided by a forum-selection clause or not)
warrant the transfer of this litigation.
For the reasons that follow, Defendant’s motion will be
granted to the extent it seeks transfer, and this action will be
transferred to the Northern District of Ohio.
Factual and Procedural Background 6
Berkowitz has manufactured architectural glass since 1920.
(See, e.g., Ex. H to Mead Cert.)
In connection with that
production, Berkowitz hired Glasstech in the late 1990s to
install a glass tempering furnace in one of its New Jersey
(See Gazzara Dep. at 8:3-23.)
In September 2012, however, Berkowitz began experiencing
issues with the furnace.
(See Def.’s SMF at ¶ 22; Pl.’s SMF at
¶ 22; Gazzara Dep. at 6:10-13.)
As a result, the Maintenance
Manager, Michael Gazzara (hereinafter, “Gazzara”), contacted
Glasstech in order to troubleshoot the issue over the telephone
(as he had on prior occasions).
(See Def.’s SMF at ¶ 23; Pl.’s
SMF at ¶ 23; Gazzara Dep. at 7:22-8:4.)
When that telephonic
assistance failed to resolve the issues, however, Gazzara
contacted Michael Walbolt (hereinafter, “Walbolt”) of Glasstech
to schedule an in-person visit by a service technician (again,
The Court distills this undisputed version of events from the
parties’ statements of material facts, affidavits, and exhibits,
and recounts them in the manner most favorable to Plaintiff, as
the party opposing summary judgment. The Court disregards, as
it must, those portions of the parties’ statements of material
facts that lack citation to relevant record evidence (unless
admitted by the opponent), contain improper legal argument or
conclusions, or recite factual irrelevancies. See generally L.
CIV. R. 56.1(a); see also Kemly v. Werner Co., ___ F. Supp. 3d
____, 2015 WL 8335030 (D.N.J. Dec. 8, 2015) (disregarding
portions of the parties’ statements of material facts); Jones v.
Sanko Steamship Co., Ltd., ___ F. Supp. 3d ____, 2015 WL 8361745
(D.N.J. Dec. 8, 2015) (same).
as had occurred previously).
at ¶ 26; Gazzara Dep.)
(See Def.’s SMF at ¶ 26; Pl.’s SMF
Following that conversation, on
September 11, 2012, Walbolt emailed Gazzara an agreement for the
“emergency service trip” with two attachments, “Q0007272.pdf”
and “GENERAL TERMS AND CONDITIONS OF SALE 020212.pdf,” and
requested that Berkowitz “provide a P.O.” so that the companies
could “firm up arrangements.” 7
(Ex. C to Mead Cert.; see also
Ex. A to Walbolt Cert.; Def.’s SMF at ¶ 28; Pl.’s SMF at ¶ 28.)
The Quotation, identified as Quote No. Q0007272 and
attached as “Q0007272.pdf,” itemized the costs and expenses for
a two day service trip to Berkowitz’s facility, and stated, on
its face, that “UNLESS OTHERWISE SPECIFIED BELOW, ALL ORDERS ARE
SUBJECT TO THE TERMS AND CONDITIONS STATED IN GLASSTECH’S
GENERAL TERMS AND CONDITIONS OF SALE.”
(Ex. B to Walbolt Cert.;
Def.’s SMF at ¶¶ 15-16; Pl.’s SMF at ¶¶ 15-16.)
Terms attached to the email (and dated February 2, 2012), 8 in
As detailed below, Walbolt carbon copied various Glasstech
employees on his email, each of whom independently confirmed the
contents of the email and its attachments. (See, e.g., Ex. D to
Walbolt Cert.; Walbolt Cert. at ¶ 10.)
8 In response to discovery requests from Glasstech, Berkowitz
indicated that it could not “locate any electronic record,
physical record or indicia of any kind” of the email exchange
between Walbolt and Gazzara (Ex. I to Mead Cert. at ¶¶ 25, 27,
29, & 30), because it “upgraded and replaced” the workstations
of Gazzara, among other employees, in 2013, and did not preserve
or retain emails between Berkowitz and Glasstech. (Def.’s SMF
at ¶¶ 57, 69-75; see also Pl.’s SMF at ¶¶ 57, 69-75 (admitting
the upgrade, the inability to produce the relevant email
exchange, and stating “that the email may have been
inadvertently deleted or taken off the server” during the
turn, provided the following explanation concerning its scope
Except as Glasstech, Inc. (“Seller”) may otherwise
agree in writing, the quotation, acknowledgement,
invoice or agreement (signed by Seller) to which the
Glasstech General Terms and Conditions of Sale (“Terms
and Conditions”) is attached or refers to, together
with the terms on the face of the Seller’s quotation,
acknowledgement, invoice or agreement (signed by
Seller) shall govern and constitute the sole and
complete agreement between Seller and its customer ...
relating to ... the provisions of services...
(Ex. C to Walbolt Cert. at ¶ 1 (emphases added).)
Terms then explained that the
Agreement shall be governed by and construed and
interpreted in accordance with the Uniform Commercial
Code as adopted by the State of Ohio, and other
applicable laws of the State of Ohio without
application of conflict of laws principles. Each
party hereby (1) irrevocably submits to the
jurisdiction of the state or federal courts located in
Toledo, Ohio, U.S.A., (2) agrees that any action, suit
or proceeding arising from or relating to this
Agreement shall be brought only in such Courts, and
(3) waives any objections based to personal
jurisdiction, venue or forum non conveniens [, and
Any action against Seller based upon Seller’s alleged
breach of its obligations must be commenced within
eighteen (18) months after Customer’s receipt of the
Equipment or the performance of the Services.
update); Wojnar Dep. (generally explaining the technology
upgrade and the deleting of information on older workstations).)
Nevertheless, Berkowitz mounts no genuine challenge to the
accuracy of the email exchange captured by the various Glasstech
employees, nor to the fact that the email contained two
attachments. (See, e.g., Def.’s SMF at ¶¶ 25-41; Pl.’s SMF at
(Id. at ¶¶ 11, 15 (emphases added).)
In other words, the
General Terms circumscribed to Toledo, Ohio the fora for any
litigation concerning the parties’ service agreement, and
limited the time period for the filing of any action. 9
In support of its position that it did not manifest assent to
the General Terms, Plaintiff makes much of the fact that
Defendant produced “three” versions of its “general terms and
conditions of sale,” each with different forum selection and
limitations provisions. (Pl.’s Opp’n at 3, 5, 8; see also Pl.’s
Supp. SMF at ¶¶ 6-11; Exs. A, B, & C to Kluxen Cert.) In other
words, Plaintiff takes the view that the existence of these
different versions casts further doubt upon whether it agreed to
the particular General Terms at issue here, and renders
“untenable” the notion that Plaintiff knew of the “terms and
conditions” from prior service trips. (Id.) Nevertheless,
Walbolt carbon copied at least three Glasstech employees on his
September 11, 2012 email (containing the relevant attachments),
and each explains that they “opened” the email attachments from
Walbolt and that the document identified as “GENERAL TERMS AND
CONDITIONS OF SALE 020212.pdf” (and attached to their
certifications) contained the February 2, 2012 General Terms.
(See, e.g., Ex. D to Walbolt Dec. (identifying Steven M.
Connell, Thomas E. Noe, Randal Laubacher, and David M. Luttrell
as carbon copied recipients on Walbolt’s September 11, 2012
email); Connell Cert. at ¶¶ 5, 7; Ex. C to Connell Cert.
(General Terms dated February 2, 2012); Noe Cert. at ¶¶ 5, 7;
Ex. C to Noe Cert. (General Terms dated February 2, 2012);
Luttrell Cert. at ¶¶ 5, 7; Ex. C to Luttrell Cert. (General
Terms dated February 2, 2012).) Berkowitz, by contrast, offers
no contrary proofs. Thus, the existence of different general
terms and conditions proves immaterial to the pending motion,
because the record contains no evidence to suggest that
Plaintiff (or, Gazzara) operated under the impression that it
had agreed to terms and conditions other than those contained in
the General Terms attached to Gazzara’s email. Nor does the
record suggest confusion or mistake, on Gazzara’s part, about
the contours of the parties’ service agreement. Rather, the
undisputed factual record demonstrates that Gazzara understood
that the email contained a quotation and terms and conditions
(see Gazzara Dep. at 24:20-25:4, 36:2-11), but that he
essentially ignored the attachments, in an effort to “get the
Following receipt of Walbolt’s email, Gazzara “[p]robably”
opened the Quotation, but “didn’t think” to open the General
Terms, because of the paramount “importan[ce]” of getting “the
(Gazzara Dep. at 16:24-17:2, 20:22-25, 35:20-
Nevertheless, Gazzara understood that the attached
documents constituted Glasstech’s “service agreement,” that his
approval would amount to an acceptance of the Quotation, and
that terms and conditions accompanied service quotations, as a
matter of course, with outside vendors. 10
(Id. at 14:21-15:7,
20:10-18, 24:20-25:4, 34:8-14, 36:2-11; see also Def.’s SMF at
¶¶ 31, 32, & 36; Pl.’s SMF at ¶¶ 31, 32, & 36.)
Having that understanding, and without reviewing the
attachment identified as the “General Terms,” Gazzara accepted
the offer, asked Walbolt to “get the ball rolling,” and provided
a “PO number for service.” 11
(Ex. C to Walbolt Cert.; see also
Gazzara Dep. at 16:11-19 (explaining that he accepted the
ball rolling” on repairs. (Ex. D to Walbolt Cert.; see also
Def.’s SMF; Gazzara Dep.)
10 Arthur Berkowitz, the President of Berkowitz, likewise
testified that Berkowitz had agreed to be bound by some form of
Glasstech’s “general terms and conditions” in prior dealings.
(Berkowitz Dep. at 31:15-20.) Indeed, Berkowitz uses terms and
conditions in dealing with its own customers. (Def.’s SMF at ¶
53; Pl.’s SMF at ¶ 53; Berkowitz Dep. at 50:21-51:14.)
11 In accepting Defendant’s offer, Gazzara carbon copied various
Berkowitz employees on his email response, including the
President of Berkowitz, Arthur Berkowitz, and the Director of
Manufacturing, James Carrol. (See, e.g., Ex. D to Walbolt
Cert.; Walbolt Cert. at ¶ 10.)
Quotation in order to get a service technician “on a plane out
here”), 20:3-9 (same).)
Unfortunately, during the course of the repair work, the
tempering furnace exploded, resulting in the “substantial”
destruction of the Berkowitz facility.
(Compl. at ¶ 3.)
result, Plaintiff filed the Complaint in this action, 12 asserting
claims for negligence, breach of warranty, and strict liability,
on the grounds that the explosion resulted from the
carelessness, negligence, and/or recklessness of the Glasstech
(See generally id.)
At the conclusion of limited
discovery on the service agreement issues identified in the
initial transfer decision, the pending motion to transfer
followed with a summary judgment-style record.
STANDARD OF REVIEW
Summary judgment is appropriate if “there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.”
Alabama v. North Carolina, 560
U.S. 330, 344 (2010) (citations and internal quotation marks
omitted); see also FED. R. CIV. P. 56(a).
Defendant removed this action from the Superior Court of New
Jersey on May 30, 2014.
13 Plaintiff, the insurance carrier for Berkowitz, reimbursed it
for the total loss allegedly derived from Glasstech’s conduct,
and brings this action as Berkowitz’s subrogee in an effort to
recover those sums. (See Compl. at 1.)
In evaluating Defendant’s motion for summary judgment, the
Court must view the material facts in the light most favorable
to the non-moving party, Plaintiff, and make every reasonable
inference in that party’s favor.
See Scott v. Harris, 550 U.S.
372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.
An inference based upon “‘speculation or conjecture,’”
however, “‘does not create a material factual dispute sufficient
to defeat summary judgment.’”
Halsey, 750 F.3d at 287
Rather, the non-moving party must support
each essential element with concrete record evidence.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,” the
Court may grant summary judgment.
Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Where, as in the present case, the summary judgment movant
seeks to enforce a term or condition of an alleged contract, the
movant must establish the existence of that agreement without
genuine dispute as to the existence of its material terms.
e.g., Celanese Ltd. v. Essex Cty. Improvement Auth., 962 A.2d
591, 600 (N.J. Super. Ct. App. Div. 2009).
If there is a
genuine dispute of fact as to any essential element of the
contract’s existence, that dispute can only be resolved at
The Court must first consider whether, upon the record
of this case, the General Terms bind the parties as part of
their service agreement.
The General Terms Set Forth a Valid, Enforceable, and
Mandatory Forum Selection Clause that Governs the
Parties’ Service Agreement
Berkowitz Agreed to be bound by the General Terms
The Court rejects, at the outset, the notion that
Berkowitz, a sophisticated commercial entity, never agreed to be
bound by the General Terms.
(See generally Pl.’s Opp’n at 1-4.)
Critically, Berkowitz concedes the following series of events:
Gazzara contacted Walbolt of Glasstech in early
September of 2012, in order to schedule a service
visit (see, e.g., Def.’s SMF at ¶¶ 22-26; Pl.’s
SMF at ¶¶ 22-26; Gazzara Dep. at 11:21-12:22);
In the aftermath of the telephone call, at 9:41
A.M. on September 11, 2012, Gazzara received an
email from Walbolt containing a Quotation “for an
emergency service trip,” with attachments, and a
request for a “P.O. ... [to] firm up
arrangements” (see, e.g., Def.’s SMF at ¶¶ 27-30;
Pl.’s SMF at ¶¶ 27-30; Ex. D to Walbolt Cert.);
Gazzara understood that the attachments
constituted Glasstech’s service agreement, and
that an affirmative response to Gazzara’s email
would amount to an acceptance of the Quotation
(see, e.g., Def.’s SMF at ¶¶ 31, 36; Pl.’s SMF at
¶¶ 31m 36; Gazzara Dep. at 20:10-18, 24:20-25:4,
With that understanding, Gazzara responded to the
email at 9:52 A.M. on September 11, 2012, by
stating, “Yes please get the ball rolling” and
then providing a “PO number for service” (see,
e.g., Def.’s SMF at ¶ 37; Pl.’s SMF at ¶ 37; Ex.
D to Walbolt Cert.); and
Gazzara intended for his response to serve as an
acceptance of Glasstech’s offer, despite the fact
that he “didn’t think” to open the document
entitled “GENERAL TERMS,” and could not
specifically recall whether he opened the
Quotation (although he “probably” did so). 14
(See, e.g., Def.’s SMF at ¶¶ 33-34, 39; Pl.’s SMF
at ¶¶ 33-34, 39.)
The Quotation that Gazzara accepted on behalf of Berkowitz,
in turn, unambiguously explains that “ALL ORDERS ARE SUBJECT TO
THE TERMS AND CONDITIONS STATED IN GLASSTECH’S GENERAL TERMS AND
CONDITIONS OF SALE.”
(Ex. B to Walbolt Cert. (emphases added).)
In other words, the Quotation amply communicated its express
incorporation of a separate and attached 15 document containing
material terms relative to the Quotation—here, the General
See, e.g., Nova Corp. v. Joseph Stadelmann Elec.
Contractors, Inc., No. 07-1104, 2008 WL 746672, at *3 (D.N.J.
Mar. 18, 2008) (citations omitted) (“‘Incorporation by reference
[under New Jersey law] is proper where the underlying contract
makes clear reference to a separate document, the identity of
the separate document may be ascertained, and incorporation of
the document will not result in surprise or hardship.’”).
Berkowitz does not dispute Gazzara’s authority to enter into
service contracts on its behalf. (See, e.g., Def.’s SMF at ¶
25; Pl.’s SMF at ¶ 25; Berkowitz Dep. at 22:20-23:2 (explaining
the authority of Gazzara to retain Glasstech to maintain or
troubleshoot the tempering furnace).)
15 Despite Berkowitz’s failure to preserve an internal copy of
the email exchange between Gazzara and Walbolt, the Court finds,
as explained above, no genuine dispute that the attachment
labeled “GENERAL TERMS AND CONDITIONS OF SALE 020212.pdf”
contained a copy of the General Terms dated February 2, 2012.
clarity of this incorporation should have, in turn, placed
Berkowitz on notice of the potential need to engage in further
investigation or inquiry into the specific terms and conditions
of the parties’ service agreement, particularly given Gazzara’s
understanding that his approval of the Quotation would amount to
an acceptance of Glasstech’s terms and his general familiarity
with terms and conditions accompanying service quotes.
Dep. at 14:21-15:7, 20:10-18, 24:20-25:4, 34:8-14, 36:2-11; see
also Def.’s SMF at ¶¶ 31, 32, & 36; Pl.’s SMF at ¶¶ 31, 32, &
Nevertheless, Gazzara conducted no further investigation or
Rather, he accepted the Quotation on behalf of
Berkowitz (eleven minutes after his initial receipt), with
little attention given to the material terms, in an effort to
“get the ball rolling” and to expedite the arrival of the
Glasstech service technician.
(Ex. D to Walbolt Cert.)
Gazzara explained during his deposition that he “didn’t think”
to open the document entitled “GENERAL TERMS AND CONDITIONS OF
SALE 020212.pdf” and that he had little, if any, concern for the
Quotation or the expense because Berkowitz wanted to do
“whatever” it could “to get [the furnace] running as quick” as
(Gazzara Dep. at 16:11-19, 20:3-25, 35:14-36:1.)
Nevertheless, accepting an offer “‘creates a conclusive
presumption that the signer read, understood, and assented to
Giaccone v. Canopius U.S. Ins. Co., 133 F. Supp.
3d 668, 674 (D.N.J. 2015) (quoting Raiczyk v. Ocean Cnty.
Veterinary Hosp., 377 F.3d 266, 270 (3d Cir. 2004) (quoting
Fleming Cos., Inc. v. Thriftway Medford Lakes, Inc., 913 F.
Supp. 837, 842–43 (D.N.J. 1995))).
For that reason, a party
cannot escape the conditions of an agreement by failing to
review an expressly incorporated and attached portion, on
account of its “‘own negligence.’”
Id. (citations omitted).
Nor, in the world of commercial contracting, does the
presentation of conditions on an adhesive (or “take-it-or-leaveit”) basis call into question the enforceability of the
Bonanno v. Quiznos Master LLC, No. 06-1415, 2006 WL
3359673, at *5 (D.N.J. Nov. 16, 2006) (citing Alexander v.
Anthony Int’l, L.P., 341 F.3d 256, 265 (3d Cir. 2003)); see
Union Steel Am. Co. v. M/V Sanko Spruce, 14 F. Supp. 2d 682, 686
(D.N.J. 1998) (same).
Rather, “the ‘critical inquiry’” concerns whether the
Quotation “‘reasonably communicated’” the General Terms, not
whether Berkowitz “actually read or negotiated” the provisions.
Selective Way Ins. Co., 2014 WL 6629629, at *5 (quoting Jordan
Acquisition Grp., LLC v. Adam Techs., Inc., No. 09-542, 2009 WL
2473987, at *6 (W.D. Pa. Aug. 12, 2009) (citing Marek v. Marpan
II, Inc., 817 F.2d 242 (3d Cir. 1987))).
Here, though, the
Quotation unquestionably communicated the existence and effect
of the General Terms, and the admitted failure of Berkowitz
(through Gazzara or otherwise) to review its provisions, despite
acceptance, affords it no comfort.
See, e.g., Giaccone, 133 F.
Supp. 3d at 677 (citations omitted) (binding the plaintiffs to
certain contractual provisions, despite their failure to read
the provisions); Riverside Chiropractic Grp. v. Mercury Ins.
Co., 961 A.2d 21, 27 (N.J. Super. Ct. App. Div. 2008) (quoting
Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 84 (N.J.
1960) (“As a general rule, ‘one who does not choose to read a
contract before signing it cannot later relieve himself of its
burdens.’”); Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide
Funds, 250 F.R.D. 171, 175 (D.N.J. 2008) (noting that the
failure to read an agreement “does not relieve” a party of the
“liability assumed thereunder”)).
Berkowitz’s subjective failings, standing alone, fail to create
a genuine issue of material fact on the question of its assent
to the General Terms.
For all of these reasons, the Court finds that Berkowitz
agreed to the Quotation subject to the General Terms, and thus
that the General Terms apply to this action.
conclusion, the Court turns to the enforceability of the forum
selection clause imbedded within these provisions.
The Forum Selection Clause is Valid, Enforceable,
Robust authority has endorsed the enforcement of forum
selection clauses, unless the clause resulted from fraud,
violates public policy, or requires resolution in a seriously
See, e.g., M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 15 (1972); Coastal Steel Corp. v. Tilghman
Wheelabrator Ltd., 709 F.2d 190, 202 (3d Cir. 1983), overruled
on other grounds by, Lauro Lines v. Chasser, 490 U.S. 495
(1989); MoneyGram Payment Sys. v. Consorcio Oriental, S.A., 65
F. App’x 844, 846 (3d Cir. 2003).
Plaintiff in this instance makes no argument that the
forum selection clause resulted from overreaching or fraud, or
that enforcement would be contrary to public policy.
Coastal Steel Corp., 709 F.2d at 202.
Rather, Berkowitz relies
entirely upon the notion that enforcement would “be unreasonable
under the circumstances presented” here.
(Pl.’s Opp’n at 4.)
More specifically, Berkowitz claims, with scant detail, that the
resolution of this action “in Ohio would seriously burden [its]
ability to litigate.” 16
(Id. at 7.)
Glasstech and the relevant technician call Ohio home, Berkowitz
In addition, Berkowitz challenges the forum-selection clause
on the grounds that it never agreed to the provisions, and based
upon the supposedly ever-changing nature of Glasstech’s forumselection provision. (See Pl.’s Opp’n at 1-3.) Berkowitz’s
positions, however, miss the mark for the reasons expressed
can hardly claim serious inconvenience in having to litigate
this action in Defendant’s principal forum.
(See Def.’s Br. at
22; Notice of Removal at ¶ 7 (describing Glasstech as “a
Delaware Corporation with its principal place of business in
Beyond that, the language of the forum selection clause
admits of no other result than that the courts of Toledo, Ohio
constitute the exclusive forum for any litigation arising out of
the parties’ service agreement.
Indeed, the disputed clause
provides that, “[e]ach party hereby (1) irrevocably submits to
the jurisdiction of the state or federal courts located in
Toledo, Ohio, U.S.A., (2) agrees that any action, suit or
proceeding arising from or relating to this Agreement shall be
brought only in such Courts, and (3) waives any objections based
to personal jurisdiction, venue or forum non conveniens [, and
(Ex. C to Walbolt Cert. at ¶ 11 (emphasis added).)
other words, the forum selection clause squarely explains and
mandates, in relevant part, that this action be pursued
exclusively in the state or federal courts located in Toledo,
Ohio, not New Jersey. 17
See Int’l Bus. Software Solutions, Inc.
A permissive forum selection clause, by contrast, “‘merely
specifies the court empowered to hear litigation” and, in
effect, “‘allows parties to air any dispute in that court
without requiring them to do so.’” Int’l Bus. Software
Solutions, Inc., 440 F. Supp. 2d at 363 n.2 (quoting S & D
Coffee, Inc., 995 F. Supp. at 609).
v. Sail Labs Tech., 440 F. Supp. 2d 357, 363 n.1 (D.N.J. 2006)
(citation omitted) (explaining that a mandatory forum selection
“‘identifies a particular state or court as having exclusive
jurisdiction over disputes arising out of parties’ contract and
their contractual relationship’”); see also Dawes v. Publish Am.
LLP, 563 F. App’x 117, 118 (3d Cir. 2014) (same); Wall St.
Aubrey Golf, LLC v. Aubrey, 189 F. App'x 82, 85-86 (3d Cir.
2006) (explaining that the inclusion of the word “shall”
establishes a mandatory forum selection clause).
For all of these reasons, the Court finds the forum
selection clause valid, mandatory, and enforceable.
Wall St. Aubrey Golf, LLC, 189 F. App’x at 85 (finding the
following clause unambiguously mandatory: “This Lease shall be
construed in accordance with the laws of the Commonwealth of
Pennsylvania, with venue laid in Butler County, Pennsylvania”),
with Radian Guaranty Inc. v. Bolen, 18 F. Supp. 3d 635, 650
(E.D. Pa. 2014) (finding permissive a forum selection clause
providing that, “any legal proceeding arising out of this
paragraph may be brought in the United States District Court for
the Eastern District of Pennsylvania”) (emphasis in original).
Nevertheless, in order to determine whether transfer is
warranted, the Court must still engage in a modified Section
The Application Section 1404(a) Considerations
Militate in Favor of Transfer
In considering a Section 1404(a) motion, 18 a district court
must ordinarily weigh an array of private and public-interest
factors, in order to determine whether a transfer would further
“the convenience of parties and witnesses” and “the interest of
28 U.S.C. § 1404(a). 19
In Atlantic Marine
Construction Co., Inc. v. U.S. District Court for Western
District of Texas, ___ U.S. ____, 134 S.Ct 568, 582 (2013),
however, the Supreme Court explained that a mandatory forumselection clause, as here, must “‘be given controlling weight in
all but the most exceptional cases.”
Id. at 581.
This directive requires federal district courts, in turn,
“to adjust their usual § 1404(a) analysis in three ways.”
First, “the plaintiff’s choice of forum merits no
weight,” and the plaintiff bears instead “the burden of
establishing that transfer” would be “unwarranted.”
Second, the parties “waive” any challenge on convenience
In diversity cases, as here, federal law governs the
contractual effect of forum selection clauses. See Jumara v.
State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995).
19 In connection with a Section 1404(a) motion, the Court must
determine, at the outset, whether the proposed alternative forum
(here, Ohio) constitutes a venue where the action could
originally have been brought. In this case, though, the inquiry
proves relatively straightforward, because Glasstech resides in
Ohio, and the contractual backdrop for this litigation occurred
in exchanges between an individual housed in Ohio and one in New
Jersey. Thus, this action could originally have been brought in
Ohio. See 28 U.S.C. § 1391(b).
grounds, either “for themselves or their witnesses, or for their
pursuit of the litigation.”
As a result, a court must
“deem the private-interest factors[ 20] to weigh entirely in favor
of the preselected forum.”
Id. at 582 (emphasis added).
when a party “flouts” its contractual obligation under the forum
selection clause, “a § 1404(a) transfer of venue will not carry
with it the original venue’s choice-of-law rules—a factor that
in some circumstances may affect public-interest
Id. (citation omitted).
In other words, the presence of a valid, mandatory forum
selection clause in this instance radically alters the relevant
analytical framework, by narrowing the transfer inquiry to only
the public-interest factors. 21
See generally id.
because the private-interest “factors will rarely defeat a
transfer motion,” the “forum-selection clause should control” in
all but the most “unusual cases.” Id.
The private-interests factors specifically include:
 plaintiff’s forum preference;  whether the
claim arose elsewhere;  the convenience of the
parties;  the convenience of the witnesses; and 
the location of books and records.
Fernandes, ___ F. Supp. 3d ____, 2015 WL 9272878, at *6-*7
21 The narrowness of this inquiry, in turn, means that the Court
confronts a contextually-different set of circumstances than the
parties presented (almost two years ago) in the initial transfer
decision, in which the Court weighed the private and publicinterest factors without the benefit of a mandatory and
enforceable forum selection clause.
Therefore, the Court will briefly address each of the
public-interest factors, which specifically include:
 the enforceability of the judgment;  practical
considerations that could make the trial easy,
expeditious, or inexpensive;  relative court
congestion;  the local interest, if any, in
deciding local controversies at home;  the public
policies of the fora; and  the relative familiarity
of the trial judge with the applicable law.
See Jumara, 55 F.3d at 879–80 (citations omitted); see also
Fernandes, ___ F. Supp. 3d ____, 2015 WL 9272878, at *6-*7
In this case, the parties – and especially Berkowitz –
devote little attention to the private-interest factors. (See,
e.g., Def.’s Opp’n.)
Indeed, Berkowitz makes no argument on
issues of judgment enforceability or practical considerations,
nor does it identify any localized policy or interest that
strongly supports the retention of this action in New Jersey.
Rather, Plaintiff points to issues of convenience and to the New
Jersey location of its damaged facility—considerations that
pertain only to the inapplicable private-interest factors.
(See, e.g., id. at 6, 7 (rearguing the private-interest factors
based, primarily, upon the initial transfer decision).)
The relevant public-interest factors do not tip the scales
in Plaintiff’s favor.
Indeed, no single factor squarely
supports Berkowitz’s position.
The Court recognizes the initial practical appeal of a
trial in this District, given the location of the damaged
facility, the furnace, and presumably certain witnesses and/or
Nevertheless, because the relevant service
technician resides in Ohio, some efficiencies would necessarily
flow from pursuing this litigation in a forum localized to the
technician and to Glasstech’s overall business.
view of the involvement of entities and individuals local to
both forums, the Court cannot find that either forum holds a
stronger interest or public policy over the resolution of this
negligence action. 22
Turning then to the remaining public interest factors—the
enforceability of judgment, relative court congestion, and state
law familiarity–the Court finds that these factors too rest in
Indeed, (1) a federal judgment would be equally
enforceable in either District, (2) relative court congestion
holds minimal weight in the overall transfer inquiry (and cannot
be considered conclusive here), and (3) it remains to be
determined (through a choice-of-law inquiry) whether New Jersey
or Ohio law will govern the substantive claims advanced by
Nor has either party identified any qualifying interest and/or
For all of these reasons, and based largely upon the forumselection clause, the Court finds the transfer of this action to
the Northern District of Ohio appropriate under 28 U.S.C. §
See, e.g., Navetta v. KIS Career Sch., Inc., No. 14-
5724, 2016 WL 2346756, at *5 (E.D. Pa. May 4, 2016) (granting a
transfer motion under similar circumstances); Asphalt Paving
Sys., Inc. v. Gen. Combustion Corp., No. 13-7318, 2015 WL
167378, at *7 (D.N.J. Jan. 13, 2015) (same).
In sum, Defendant’s motion to transfer will be granted, and
this action will be transferred to the Northern District of
The accompanying Order will be entered.
May 17, 2016
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
Although this Court has some concern that the contractual
limitations provision of the General Terms might ultimately bar
this action, the transferee court in Toledo, Ohio will be in a
better position to address the existence and/or application of
any reasonableness limitations or equitable defenses to that
provision under Ohio law. Aside from that general observation,
though, the Court need not reach Defendant’s alternative request
for summary judgment.
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