Allied Dynamics Corp. v. Kennamental, Inc. et al

Filing 52

MEMORANDUM AND OPINION. For the reasons set forth herein, the Court grants defendants' motion to dismiss for improper venue, and denies the motions to dismiss pursuant to forum non conveniens and for failure to state a claim as moot. The Clerk of the Court shall close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/5/2014. (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-5904 (JFB)(AKT)
_____________________

ALLIED DYNAMICS CORP.,
Plaintiff,
VERSUS

KENNAMETAL, INC. AND KENNAMETAL STELLITE, FORMERLY KNOWN AS
MICROFUSIONE STELLITE S.P.A.,
Defendants.
___________________
MEMORANDUM AND ORDER
August 5, 2014
___________________

quality promised. Thereafter, plaintiff
initiated this lawsuit, alleging that MFS and
its parent company, Kennametal, breached
their contracts for the provision of blades to
plaintiff, negligently and fraudulently
misrepresented both their ability to perform
under the contracts and the quality of the
goods that they sent to plaintiff pursuant to
the contracts, and have retained unlawful
possession of tools that plaintiff sent them to
aid in their manufacture of the blades.

JOSEPH F. BIANCO, District Judge:
Plaintiff Allied Dynamics Corporation
(“plaintiff” or “Allied”) brings this action
against Kennametal, Inc. (“Kennametal”)
and Kennametal Stellite, formerly known as
Microfusione Stellite S.p.A., (“MFS”)
(collectively, “defendants”), alleging causes
of action for breach of contract, negligent
misrepresentation, fraud, and replevin. This
case relates to the business relationship that
began in 2007 between Allied, a corporation
headquartered in New York, and MFS, a
company doing business in Italy. Allied,
which engineers and manufactures turbine
parts, sought to purchase blade parts from
MFS for gas turbine assembly. In alleged
reliance on MFS’s representations about its
experience producing the blades plaintiff
desired and MFS’s ability to manufacture
blades in the quantity and quality plaintiff
required, plaintiff issued various purchase
orders to MFS. According to plaintiff, MFS
failed to provide goods of the quantity and

Now pending before the Court is the
balance of defendants’ motion to dismiss.
On September 4, 2013, the Court denied the
motion to dismiss MFS for lack of personal
jurisdiction pursuant to Rule 12(b)(2) of the
Federal Rules of Civil Procedure, but
deferred deciding whether to dismiss for
improper venue pursuant to Rule 12(b)(3)
(or, in the alternative, under the doctrine of
forum non conveniens), and for failure to
state a claim pursuant to Rule 12(b)(6).
Allied Dynamics Corp. v. Kennametal, Inc.,
1

965 F. Supp. 2d 276 (E.D.N.Y. 2013). The
Court concluded that an evidentiary hearing
was necessary because disputed issues of
fact existed with regard to the trajectory of
contract formation and whether the forum
selection clause was part of the parties’
contracts. The Court held the hearing on
December 10, 2013, and the parties have
submitted supplemental briefs addressing
the evidence presented during the hearing.

do so, Allied issued purchase orders to MFS
that included the description of the goods to
be provided, the amount, the delivery date,
and the price. (Id.) Plaintiff claims that MFS
generally would acknowledge plaintiff’s
purchase orders via a telephone call or
email, and on certain occasions, MFS also
would send plaintiff a formal written order
confirmation. (Id. ¶ 21.) MFS contends that
it formally accepted purchase orders only
through written order confirmations—never
via a telephone call or email.

For the following reasons, the Court
grants the motion to dismiss for improper
venue. Specifically, the Court finds that
Allied’s purchase orders at issue were the
offers. MFS’s sales quotes, which did not
include the quantities Allied would order,
lacked the definiteness required by the
United Nations Convention on Contracts for
the International Sale of Goods (“CISG”),
which governs the substantive question of
contract
formation
in
this
case.
Consequently, MFS’s order confirmations,
which include, inter alia, MFS’s General
Terms and Conditions of Supply (“GTCs”)
and the forum selection clause therein, were
counteroffers that plaintiff accepted when it
failed to object within fifteen days of receipt
of each confirmation. Therefore, the
contracts include the forum selection clause,
and the Court shall enforce it.1
I.
A.

Allied placed twenty-two orders with
MFS from August 2008 through February
2012, with a total value exceeding five
million dollars. The five orders at issue are:
(1) Blade 1 Type 251
a. Allied Purchase Order: Sept. 23,
2008 (Def. Ex. A-2)
b. MFS Order Confirmation: Oct.
30, 2008 (Def. Ex. A-3)
(2) V94.2 Blade 1
a. Allied Purchase Order: Apr. 28,
2009 (Def. Ex. B-2)
b. MFS Order Confirmation: Apr.
29, 2009 (Def. Ex. B-3)
(3) V94.2 Blade 1
a. Allied Purchase Order: Aug. 12,
2009 (Def. Ex. C-2)
b. MFS Order Confirmation: Sept.
10, 2009 (Def. Ex. C-3)
(4) W25 Row 1 Blade
a. Allied Purchase Order: Aug. 12,
2009 (Def. Ex. D-2)
b. MFS Order Confirmation: Sept.
10, 2009 (Def. Ex. D-3)
(5) 13 e2 Blade 4 and 13E2M05 Blade 5
a. Allied Purchase Order: Jan. 26,
2011 (Def. Ex. E-2)
b. MFS Order Confirmation: Jan.
31, 2011 (Def. Ex. E-3)

BACKGROUND
Introduction

Plaintiff, an engineer and manufacturer
of turbine parts, began its business
relationship with MFS, a manufacturing
company headquartered in Italy that
specializes in prevision investment castings
for gas turbines, in 2007. (Compl. ¶¶ 17, 19,
20.) Plaintiff sought to purchase parts from
MFS for gas turbine assembly. (Id. ¶ 20.) To

At this juncture, the Court must
determine the trajectory of contract
formation and whether plaintiff consented to

1

The Court therefore does not address forum non
conveniens and the sufficiency of the pleadings.

2

XXI, Inc. v. Stato della Citta del Vaticano,
818 F. Supp. 2d 597, 604 (E.D.N.Y. 2011)
(“[A]bsent an evidentiary hearing, the Court
must view the facts in the light most
favorable to the plaintiff.”). The Court has
fully considered the evidence and written
submissions presented by the parties. The
facts discussed herein are drawn from the
hearing exhibits and the witnesses’
testimony and declarations. In resolving the
factual disputes, the Court has carefully
weighed the evidence, and it has evaluated
the credibility of the witnesses who testified
at the hearing. In particular, the Court finds
the testimony of Mongelli and Bianchi to be
fully credible in all respects.2

agreements with MFS that contained a
forum selection clause mandating the
litigation of all related disputes in Milan,
Italy. At the evidentiary hearing on
December 10, 2013, defendants presented
the testimony of two witnesses: Angela
Mongelli (“Mongelli”) and Mauro Bianchi
(“Bianchi”). Mongelli is a former employee
of MFS; she worked for MFS for thirtythree years and was its Sales Back-Office
Representative in 2009, responsible for
checking incoming purchase orders and
preparing outgoing order confirmations.
(Declaration of Angela Mongelli (“Mongelli
Decl.”) ¶ 1, Docket No. 30-1; Tr. 5:17–
6:19.) Bianchi is MFS’s General Manager of
Sales; he began working for MFS in
December 1999 and became Sales Manager
in November 2009. (Declaration of Mauro
Bianchi (“Bianchi Decl.”) ¶ 1, Docket No.
23; Tr. at 66:21–67:5, 98:7–9, 100:15–18.)
Plaintiff presented the testimony of one
witness: David Mott (“Mott”), Allied’s
General Manager. (See Declaration of David
Mott (“Mott Decl.”) ¶ 1, Docket No. 28.)

B.

MFS’s General Practices and the
Standard Terms & Conditions

Transactions between MFS and its
customers during the relevant time period
generally proceeded as follows.
1.

Sales Quote

First, an MFS Sales Manager, such as
Bianchi or Gabriele Tuzi, produced a quote
for a customer. (Tr. 10:8–10; 70:16–25.)
According to Bianchi, “usually the
transaction starts when we receive a request
for a quotation.” (Id. at 72:8–9.)

Because the Court held the evidentiary
hearing, it may resolve disputed facts in a
manner adverse to Allied, which has the
burden of demonstrating venue by a
preponderance of the evidence. See Gulf Ins.
Co. v. Glasbrenner, 417 F.3d 353, 355 (2d
Cir. 2005) (“‘[I]f the court holds an
evidentiary hearing . . . the plaintiff must
demonstrate [venue] by a preponderance of
the evidence.’” (quoting CutCo Indus. v.
Naughton, 806 F.2d 361, 364–65 (2d Cir.
1986)); Novak v. Tucows, Inc., No. 06-CV1909 (JFB)(ARL), 2007 WL 922306, at *6
(E.D.N.Y. Mar. 26, 2007) (“A disputed fact
may be resolved in a manner adverse to the
plaintiff only after an evidentiary hearing . .
., and no disputed fact should be resolved
against [the resisting] party until it has had
an opportunity to be heard.” (quoting New
Moon Shipping Co. v. Man B&W Diesel
A.G., 121 F.3d 24, 29 (2d Cir. 1997))); Magi

Each quote plaintiff received before
20103 generally included the following: (1)
2

When the Court cites the testimony of a witness in
the summary of facts, it has found such testimony to
be credible in light of the witness’s demeanor and all
the evidence presented. As discussed infra, to the
extent Mott’s testimony contradicts Mongelli’s
and/or Bianchi’s testimony, the Court does not find
Mott’s testimony credible. Moreover, as discussed
infra, the Court finds Allied’s recordkeeping
unreliable in light of modifications made to the
documents produced at the hearing.
3

A shift in format occurred in 2010. (Compare Offer
Quote # 085 09 NS, Pl. Ex. 18-A (April 2009), with
Quotation 033/10/NS, Pl. Ex. 20-A (March 2010).)

3

an “Offer #” at the top of the page; (2) issue
and expiration dates; (3) “Terms &
Conditions,” including the currency,
payment terms (e.g., 20 percent at order
entry and 80 percent at shipment), shipping
conditions and the packaging form; (4)
information about the “tooling,” which is
used to make the wax molds necessary to
design a part for manufacturing (see Tr. at
105:13–106:10); (5) the requirements for
production, such as drawings, specifications,
and 3D models; (6) information about
production tests; and (7) details on the
product, such as its description (e.g., a
blade), heat treatments, year volume (the
number of sets, the number per set, and the
total), the tooling (including its price and
lead time), the qualification (including its
price and lead time), and the product
(including its unit price and lead time).
(E.g., Offer Quote # 108 08 NS, Pl. Ex. 1-A;
Offer Quote # 085 09 NS, Pl. Ex. 3-A.)

Each post-2009 quote generally included
(1) a quotation or offer number; (2) a part
description; (3) the quantity per set; (4)
information about the alloy and heat
treatment; (5) information about the tooling
and the price for tooling; (6) a price for the
FAIR; (7) a quantity; and (8) the unit price.
(E.g., Quotation 02/11/NS, Pl. Ex. 5-A
(January 2011); Quotation 033/10/NS;
Quotation 120/10/NS, Pl. Ex. 24-A
(September 2010).) Some post-2009
quotations also include a subtotal.5 (E.g.,
Quotation 120/10/NS; Quotation 014/11/NS,
Pl. Ex. 25-A (January 2011).) In some
quotes, MFS wrote: “We reserve the right to
review our prices in case of differences
between
your
final
drawing
and
specifications and the ones used as a
reference for this offer. We reserve the right
to review our prices in case of changes of
raw material prices higher than ±10% form
current raw materials market prices.”
(Quotation 02/11/NS; see also Quotation
033/10/NS.) In quote 02/11/NS, MFS also
noted that “What hasn’t been clarified with
this quotation will have to be clarified at the
moment of the PO [purchase order].”

None of the pre-2010 quotes at issue
(and none of the other pre-2010 quotes in
evidence, for that matter)4 included a
specific quantity to be purchased. Some of
the quotes included a handwritten price near
the unit price. (E.g., Offer Quote # 108 08
NS.) In addition, in Quote #108 08 NS, at
issue in this litigation, MFS wrote: “the offer
is considered budgetary, since it is made
without testing and material specifications.”
(Id.; see also Offer # 105 08 NS, Pl. Ex. 6-A
(March 2008) (“[T]he offer is considered
budgetary, missing material spec.”); Offer #
163 08 NS, Pl. Ex. 8-A (November 2008)
(“[T]he offer is budgetary, since the ceramic
core and weight are estimated.”).)

2.

Purchase Order

Second, the customer sent a purchase
order. Based on the orders in evidence, the
orders included the customer’s name and
contact information; an order number and
date; a shipment method and payment terms;
the name of a contact at MFS and the name
5

Some of the post-2009 quotes listed a quantity that
corresponds or is close to the quantity on Allied’s
corresponding purchase order. (See, e.g., Jan. 13,
2011 Purchase Order, Pl. Ex. 24-B (quantity ordered
corresponds to quantity in quote, and amount due
corresponds to subtotal in quote).) The only post2009 purchase at issue, however, is related to
Quotation 02/11/NS. It lists a quantity of 120/130,
which does not correspond to the quantity listed on
the purchase order—133. (See Jan. 26, 2011 Purchase
Order, Pl. Ex. 5-B, Def. Ex. E-2.)

4

Several quotes are not in evidence. The Court draws
no specific adverse inference because of this alone,
but it is remarkable that plaintiff has not produced the
documents it claims were the offers for every
transaction with MFS.

4

of the purchasing agent; specific provisions
about the parts and shipment methods; the
quantity ordered; the part number and
description; the date required; the unit cost;
and the total amount due (in euros or
dollars). (E.g., Sept. 23, 2008 Purchase
Order, Def. Exs. A-1, A-2; Apr. 28, 2009
Purchase Order, Def. Exs. B-1, B-2.)
3.

page of the order confirmation. (Id. at 38:1–
8.) Thus, when MFS mailed an order
confirmation to a customer, the GTCs were
on the back of every single page of the
confirmation. (Id. at 43:17–22.) On the
bottom left of the front page of the
confirmation, MFS wrote (in Italian and
English): “Please send back copy of the
present document signed for acceptance of
our sale’s terms and conditions printed
overleaf. After 15 days from receipt of the
present we consider our conditions
accepted.” (E.g., Oct. 30, 2008 Order
Confirmation, Def. Ex. A-3.) As relevant
here, the GTCs provide that the parties
“agree that any legal claim or any other
controversy will be subject to the exclusive
jurisdiction of the Court of Milan.” (General
Terms & Conditions of Supply (Translation)
¶ 5, Bianchi Decl. Ex. 5.)

Internal Review and Order
Confirmation

Third, after receiving a purchase order,
Mongelli (or an individual in a comparable
position) checked it against the quote given
to
the
customer.
(Tr.
10:13–23.)
Specifically, Mongelli checked “the parts
that the customer order it [sic], the quantity,
the price, the delivery, the specification,
[and the] terms of payment.” (Id. at 10:13–
23.) She then drafted an order confirmation.
Mongelli made no changes to the provisions
of an order confirmation on her own. (Id. at
10:25–11:13.) Instead, MFS’s technical
production staff and sales personnel
reviewed the proposed order confirmation.
(Id. at 36:1–10.) In some cases, this review
led to changes. (Id. at 37:2–10.) Following
this internal input from MFS’s technical and
sales staff, and any resulting changes,
Mongelli finalized the order confirmation.
(Id. at 12:14–13:3.)

Fourth, the Sales Manager reviewed and,
if it was acceptable, signed the order
confirmation.
(Tr.
44:7–12.)
The
confirmation then was returned to the back
office, which “distribute[d] the internal
paper and one copy goes to the receptionist
that is in charge of doing the mailing to our
customer.” (Id. at 88:8–14.) During the time
period in question, order confirmations
always were sent by regular mail. (Id. at
25:7–12.) Mongelli typically would wait no
more than ten days to send an order
confirmation after receiving the purchase
order.7 (Id. at 12:3–10.)

The MFS order confirmation forms at
issue consist of four pages. “[T]he first one
goes to the customer, and the other pages are
carbon . . . copies, and one stays in the
folder that the sales office keeps with the
order and with the quotation. . . . One copy
goes to the production and the other to the
quality.”6 (Id. at 37:11–22.) MFS’s General
Terms and Conditions of Supply were
printed in Italian on the reverse side of each

Mongelli testified that an “order was not
complete until [she] did an order
confirmation.” (Id. at 9:15–23.) She further
explained that MFS’s production department
does not start working on an order until the
7

The evidence indicates that, in some instances, a
longer period of time elapsed between the receipt of a
purchase order and an order confirmation. (Compare,
e.g., Sept. 23, 2008 Purchase Order (sent September
23, 2008), with Oct. 30, 2008 Order Confirmation
(dated one month after receipt of purchase order).)

6

The carbon pages were colored differently
depending on whether they went to the customer,
quality department, production department, or sales
office. (Tr. at 102:22–103:1.)

5

evidence on how it handled the transactions
at issue in this case.

expiration of the fifteen-day period to object
to the GTCs because “[t]hey know because
the procedure is that,” and “I think it’s the
production manager that gives to the
department the date when to start the
production.” (Id. at 54:20–55:8.) Bianchi
agreed, testifying that “everything starts
when we send the order [confirmation] to
our customer . . . because it’s when
everything starts within our organization.”
(Id. at 98:25–99:5.) According to Bianchi,
because MFS is a large company with
complex production, “the only way to be on
the same page is to have everything
documented in your hand.” (Id. at 99:5–8.)
Further, “the order acknowledgement is the
only official document.” (Id. at 99:18–19.)
He stressed that MFS is a foundry for
complex parts made of super alloys mainly
used for the aerospace business or industrial
gas turbines. (Id. at 99:20–100:3.) Thus,
engineers and other departments were
involved from step one (id. at 100:4–9), but
everything would start with “the final . . .
signature of the sales director that confirms
what is been agreed with the customer is on
a piece of paper that can be distributed to the
rest of the team in the plant” (id. at 100:23–
101:1). Bianchi disagreed when asked
whether MFS confirms orders over the
telephone, sends confirmations months after
receiving purchase orders, or sends
confirmations via email. (Id. at 112:14–
113:9.) He testified that MFS may resolve
details of orders, such as technical aspects,
via email and telephone, but it would not
accept and confirm an order by telephone.
(Id. at 68:2–10, 83:15–20.)

II.

STANDARD OF REVIEW

Enforcement of a forum selection clause
is an appropriate basis for a motion to
dismiss pursuant to Rule 12(b)(3) of the
Federal Rules of Civil Procedure. See
TradeComet.com LLC v. Google, Inc., 647
F.3d 472, 478 (2d Cir. 2011). Where an
evidentiary hearing on the issue of venue
has been held, as in this case, the plaintiff
has the burden of demonstrating venue by a
preponderance of the evidence. See Gulf Ins.
Co., 417 F.3d at 355.
“The enforcement of forum selection
clauses in international disputes is governed
by M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1 (1972).” Aguas Lenders
Recovery Grp. LLC v. Suez, S.A., 585 F.3d
696, 700 (2d Cir. 2009). In M/S Bremen, the
Supreme Court held that mandatory forum
selection clauses (in which the parties agree
in advance that their contract will be
governed exclusively by the laws of a
particular forum) are entitled to a
presumption of enforceability unless
“enforcement would be unreasonable and
unjust, or . . . the clause was invalid for such
reasons as fraud or overreaching.” 407 U.S.
at 15. A forum selection clause can bind the
parties even where the agreement in
question is a form consumer contract that is
not subject to negotiation. Carnival Cruise
Lines, Inc. v. Shute, 499 U.S. 585, 589–95
(1991). Such clauses will be enforced only if
found to be exclusive or mandatory. See
John Boutari & Son, Wines & Spirits, S.A. v.
Attiki Imps. & Distribs., Inc., 22 F.3d 51,
52–53 (2d Cir. 1994).

In sum, although plaintiff disputes
MFS’s description of the course of dealings
between the parties, the Court finds
Mongelli’s and Bianchi’s testimony
regarding MFS’s general practices credible
in all respects. Plaintiff has introduced no
credible evidence to undermine MFS’s
evidence of its general practices, or its

It is clear, based on the language of the
forum selection clause at issue, that the
choice of forum is mandatory, as specific
language regarding venue is included in the
clause, specifying that “any legal claim or
6

any other controversy will be subject to the
exclusive jurisdiction of the Court of Milan”
(General Terms & Conditions of Supply
(Translation) ¶ 5). See, e.g., John Boutari &
Son, 22 F.3d at 53; Cent. Nat’l-Gottesman,
Inc. v. M.V. Gertrude Oldendorff, 204 F.
Supp. 2d 675, 678 (S.D.N.Y. 2002) (“For a
forum selection clause to be deemed
mandatory, jurisdiction and venue must be
specified with mandatory or exclusive
language.”). The question, therefore, is
whether plaintiff in fact consented to an
agreement with defendants that contained
this mandatory forum selection clause.
III.

fifteen days of receipt, to the GTCs included
in MFS’s order confirmations. Therefore,
the forum selection clause is a part of the
parties’ agreement, and plaintiff has
demonstrated no basis to not enforce it.
A.

Trajectory of Contract Formation

The CISG governs the substantive
question of contract formation in this case.
See, e.g., Golden Valley Grape Juice &
Wine, LLC v. Centrisys Corp., No. CV F 091424 LJO GSA, 2010 WL 347897, at *3
(E.D. Cal. Jan 22, 2010) [hereinafter
Centrisys] (“The CISG governs only the
formation of the contract of sale, and the
rights and obligations of the seller and the
buyer arising from such a contract.”). Thus,
the CISG governs whether and when the
forum selection clause at issue became a
part of the parties’ agreement. In situations
where a forum selection clause was imposed
before a contract formed under the CISG
(i.e., as a part of an offer or counteroffer that
later was accepted), courts have deemed the
forum selection clause to be a part of the
parties’ consented to agreement. See, e.g.,
id. at *5 (“The evidence establishes that at
the time [the plaintiff] sent its sales quote to
[the defendant], it contemporaneously sent
its General Conditions[—which included a
forum selection clause—]as part of the
attachments. By adopting the terms of the
sales quote, [the defendant] accepted the
terms upon which the [goods] had been
offered, including the General Conditions.
Thus, [the defendant] accepted the General
Conditions,” including the forum selection
clause at issue.). Courts have also deemed
forum
selection
clauses
interposed
subsequent to contract formation to be a part
of the agreement in cases where the other
party assented to the clause’s inclusion. See,
e.g., BTC-USA Corp. v. Novacare, Civ. No.
07-3998 ADM/JSM, 2008 WL 2465814, at
*4 (D. Minn. June 16, 2008) (finding that
plaintiff “expressed its assent to the forum

DISCUSSION

Defendants argue that the case should be
dismissed for improper venue because the
forum selection clause contained within the
contracts between plaintiff and MFS makes
the courts of Milan, Italy the exclusive
forum for any disputes. According to
defendants, Allied’s purchase orders were
the offers, and MFS’s order confirmations
constituted counteroffers that plaintiff
accepted when it failed to object timely to
the inclusion of the GTCs in the contracts.
In the alternative, defendants argue that
Allied accepted the GTCs and the forum
selection
clause
following
contract
formation, because it never objected to the
GTCs during the parties’ nearly four-year
course of dealings. Plaintiff counters that the
forum selection clause is not part of the
agreements with MFS, because the contracts
were formed when plaintiff sent the
purchase orders accepting the terms in
MFS’s quotes.8 Thus, according to plaintiff,
the confirmations with the GTCs attempted
to, but did not, modify the terms of the
contracts. As set forth below, the Court
concludes that the parties’ contract was
formed when Allied failed to object, within
8

The complaint notably is silent as to any quotes
from MFS preceding plaintiff’s purchase orders.

7

As a threshold matter, here, the
documentary evidence and the parties’
course of dealing establish that no contract
was formed under the CISG when plaintiff
made its purchase orders. Under the CISG,
“[a] contract of sale need not be concluded
in or evidenced by writing and is not subject
to any other requirement as to form.” CISG
art. 11. A proposal is an offer if it is
“sufficiently definite and indicates the
intention of the offeror to be bound in case
of acceptance.” CISG art. 14(1). Article
14(1) further states that “[a] proposal is
sufficiently definite if it indicates the goods
and expressly or implicitly fixes or makes
provisions for determining the quantity and
the price.” Thus, a sales quote is sufficiently
definite to constitute an offer under the
CISG where it states the cost of building a
product, fixes or makes provisions for
determining the quantity of a product, states
a timeline for production, and provides
details about the product to be
manufactured. See Chateau des Charmes
Wines, 328 F.3d at 531 (finding that binding
contract existed when parties sufficiently
and orally agreed as to goods, quantity, and
price); Eason Automation Sys., Inc. v.
Thyssenkrupp Fabco, Corp., No. 06-14553,
2008 WL 1901236, at *2 (E.D. Mich. Apr.
25, 2008) (concluding that quote stating cost
of building machine, date of delivery,
timeline for production, and details about
product
to
be
manufactured
was
“sufficiently definite to constitute an offer
under the CISG,” and that “the contract was
formed upon verbal assent of Defendant
which indicated that Plaintiff should begin
work on the machine”).

selection clause[’s] . . . material alteration of
the oral contract” between the parties by
initialing the general conditions of sale
provided by defendant). Where a party
unilaterally has sought to add a forum
selection clause after the parties already
formed their agreement under the CISG,
however, courts have held that the forum
selection clause does not modify the contract
agreed to by the parties. See, e.g., Chateau
Des Charmes Wines Ltd. v. Sabate USA Inc.,
328 F.3d 528, 531 (9th Cir. 2003) (holding
that, because “[a] contract is concluded at
the moment when an acceptance of an offer
becomes effective” under the CISG,
complete and binding contracts were formed
between the parties when they reached oral
agreements on price and quantity, and
subsequent invoices containing forum
selection clauses sent by one party merely
were an attempt to modify the contracts,
which cannot be done unilaterally under the
CISG (citation and internal quotation marks
omitted)); Solae, LLC v. Hershey Can., Inc.,
557 F. Supp. 2d 452, 458 (D. Del. 2008)
(holding that parties formed contract under
CISG in 2006 when they agreed on price,
quantity, and freight terms, and concluding
that forum selection clause contained in
Conditions of Sale introduced unilaterally
and subsequent to contract formation did not
modify that contract under CISG); see also
CSS Antenna, Inc. v. Amphenol-Tuchel
Elecs., GmbH, 764 F. Supp. 2d 745, 754 (D.
Md. 2011) (concluding that, although
defendant’s order confirmations containing
general conditions constituted counteroffers,
forum selection clause contained therein
could not be deemed part of contract for
purposes of motion to dismiss for improper
venue, because there was no evidence
indicating that plaintiff had actual
knowledge of the conditions or the fact that
defendant intended those conditions to be
incorporated into the contract).

As detailed supra, none of the quotes at
issue specified the quantities that Allied
would order. Further, some quotes included
language characterizing the quote as
“budgetary” because of a lack of material
specifications. (E.g., Offer Quote # 108 08
NS.) Mott also acknowledged that he
8

sometimes would negotiate prices verbally
with MFS before sending a purchase order.
(Tr. 135:10–20.) Therefore, at most, the
quotes “create[d] a framework for the future
sale of goods but fail[ed] to establish
specific terms for quantity and price,”
Gruppo Essenziero Italiano, S.p.A. v. Aromi
D’Italia, Inc., Civil No. CCB-08-65, 2011
WL 3207555, at *3 (D. Md. July 27, 2011)
(citing Amco Ukrservice v. Am. Meter Co.,
312 F. Supp. 2d 681, 686–87 (E.D. Pa.
2004)), and they also lacked the information
that would “fix[] or make[] provisions for
determining the quantity” of the product that
Allied would purchase, Eason, 2008 WL
1901236, at *2; see also CISG art. 14(1);
CSS Antenna, 764 F. Supp. 2d at 752
(concluding that parties’ inventory and
supply agreement did not memorialize entire
contractual arrangement, unlike parties’
purchase order/confirmation arrangement,
where agreement included no information
regarding price or quantity); Centrisys, 2010
WL 347897, at *3 (finding an adequate offer
where sales quote identified goods for sale,
quantity of goods, and price). The record
also contains no credible evidence of oral
discussions that plaintiff and MFS may have
had before plaintiff sent the purchase orders,
during which they agreed to the goods,
quantity, and price, and thus formed an oral
contract.9 Thus, under the CISG, an

adequate offer only was made once plaintiff
sent its purchase orders to MFS.
The evidence also establishes that MFS
never accepted orders before issuing an
order confirmation. Under the CISG, an
offer is accepted if the offeree makes a
“statement . . . or other conduct . . .
indicating assent to an offer.” CISG art. 18.
“A contract is concluded at the moment
when an acceptance of an offer becomes
effective.” CISG art. 23.
The order confirmations MFS issued
after receiving plaintiff’s purchase orders
detailed the order; contained MFS’s
standard terms, including the forum
selection clause; and demonstrate that MFS
changed the payment terms and delivery
dates for each order. MFS’s witnesses
credibly testified that these confirmations
were mailed to plaintiff, although Mongelli
and Bianchi did not exactly know when they
were mailed.10 (Tr. at 16:12–15, 114:3–13.)
Although Allied disputes that it received
confirmations with the standard terms for all
twenty-two orders it placed with MFS, Mott
acknowledged that Allied’s records included
the standard terms with at least twelve of the
were made orally in conference calls and that the
parties sometimes communicated via Skype to reach
an agreement. (See id. at 167:18–25, 168:1–9.) Those
facts, however, do not change the Court’s finding.
Instead, they underscore that, although some
specifics of the orders were negotiated verbally,
plaintiff arguably knew that MFS required a purchase
order prior to the formation of a contract.

9

Plaintiff emphasizes that the August 12, 2009
Purchase Orders, which it claims it made during a
telephone call with Tuzi, were “repeat” orders,
“meaning that [Allied] was ordering the same
materials, and accepting the same terms, as in MFS’s
prior offers/quotes.” (Pl. Suppl. Br., at 2 (citing Tr.
127:13–128:6).) Specifically, Mott testified that
Allied issued the purchase orders based on the
original quote and a conversation with Tuzi “just
basically negotiating verbally a different price
considering they hadn’t really gotten to full blown
production yet.” (Tr. 127:18–128:2.) Mott also said
that when the parties agreed on a different price,
MFS told him to “[s]end the purchase order
tomorrow and we’ll take it.” (Id. at 135:21–22.)
Defendants do not dispute that modification requests

10

In Bianchi’s experience, regular mail from Italy to
New York took eight to ten days to arrive. (Reply
Declaration of Mauro Bianchi (“Bianchi Reply
Decl.”) ¶ 6, Docket No. 30-2; see also Tr. at 65:17–
21.) In any event, this fact is irrelevant. The order
confirmations provide that the date to accept or reject
the GTCs ran from the date of receipt, not mailing.
Further, MFS’s decision not to monitor the receipt of
the order confirmations does not show that MFS
accepted the purchase orders through other means, or
that a contract was formed when Allied sent its
purchase orders to MFS.

9

order confirmations.11 (Tr. 138:6–12.) As
discussed infra, there also is no evidence in
the record, other than Mott’s testimony
(which the Court does not find credible),
that Tuzi or any other MFS representative
confirmed orders via emails or during
telephone calls. Therefore, plaintiff’s
contentions aside, the Court concludes that
MFS consistently acted in accordance with
its general practices with respect to its
transactions with Allied and used the order
confirmations to finalize the transactions.
Whether the order confirmations properly
incorporated the forum selection clause and
thus were counteroffers rather than
acceptances is a separate question.12

confirmed by telephone or that clearly
confirms an order via email.13 Further,
Mott’s
belief,
based
on
certain
conversations, that his orders were being
processed (see Tr. at 168:1–9) does not
establish the fact of confirmation.
Plaintiff’s focus on the two instances
when Mott asked for and received order
confirmations via email (both related to the
August 12, 2009 orders) also undermines its
point. The correspondence (see Email
Chain, Pl. Exs. 2D, 4D) is telling. On
September 15, 2009, Mott wrote: “I have
been begging for acknowledgment for you
to confirm acceptance and delivery and I
have yet to receive nothing. . . . I really
would appreciate if someone confirmed our
new p.o.’s as we were told the parts would
all arrive this year and we are waiting for
confirmation.” (Email Chain, at 3 (emphasis
added).) Tuzi responded that “the orders for
the parts already tooled, have been
confirmed. About the 2 new products, they
will be probably confirmed by next week,
since tooling are not here yet.” (Id. at 2.)
Mott replied, “Ok, as always for us
confirmation is when you send us payment
cadence.” (Id. (emphasis added).) Tuzi
responded, “You will receive the order
confirmation.” (Id.) On September 16, 2009,
Mongelli emailed Mott, apologized for the
delay in sending the confirmations due to

Plaintiff raises several issues it believes
undermine
MFS’s
claim
that
the
confirmations mattered. The Court is
unpersuaded.
First, plaintiff argues that Tuzi
confirmed orders via email or during
conference calls. (Pl. Suppl. Br., at 2 (citing
Tr. 28:2–9; Pl. Exs. 10D, 13, 19D).) Plaintiff
also argues that, on two instances, Mott
asked for order confirmations because the
orders had not been discussed orally, and, in
response, MFS sent Mott a PDF copy of the
order confirmation in an email, without
reference to the GTCs. (Id. at 3–4.) As noted
supra, there is no credible evidence that
Tuzi confirmed orders via email or during
calls, which would run counter to MFS’s
practice of requiring Allied to send the
purchase orders. There is no documentary
evidence that ever references an order

13

Given the complexity of the products, the Court
finds it incredible that either company would
consider binding itself without a written
memorialization of the agreement. Furthermore, none
of the emails plaintiff references confirm a specific
order. The email in Exhibit 10D asks Mott to send
Tuzi the order “asap”; the email in Exhibit 13 does
not reference any specific order, and Mongelli
testified that this email “was for general orders, not
the specific order number” (Tr. at 28:22–23); and the
February 10, 2010 email in Exhibit 19D, about an
order not at issue, provides that MFS would confirm
the purchase order, which MFS’s exhibits indicate
was done via an order confirmation also dated
February 10 (see Def. Ex. F-11).

11

Mott acknowledged that plaintiff repeatedly
received order confirmations from MFS and that
Mott would “glance” at them to review the material
terms. (Tr. at 136:5–6, 156:10–157:1.) He also
acknowledged having seen the confirmation form
before September 16, 2009. (Id. at 161:14–20.)

12

As discussed infra, the Court concludes that the
confirmations were counteroffers that properly
incorporated the forum selection clause.

10

production immediately. Moreover, as
indicated by Tuzi’s September 15 email,
MFS sometimes waited to confirm an order
until the tooling was received, which
explains any delays in Allied’s receipt of a
confirmation even after these discussions.
(Accord Bianchi Reply Decl. ¶¶ 5–6 (stating
that telephone discussions and emails were
used to clarify customer orders, and that
“[o]n most orders, we did not begin
manufacturing for a month to a month and a
half after we sent the order confirmations, in
part because we need to order materials
necessary for the particular manufacture”).)
The differing periods of time between
Allied’s orders and MFS’s confirmations
support this conclusion.

her absence, and attached copies of the
confirmations for the tooled products. (Id. at
1.) Although those confirmations lacked the
GTCs (but included the language at the
bottom left about accepting the GTCs),
Mongelli testified that she had the
receptionist mail the originals of the
confirmations with the standard terms on the
reverse side to Allied one or two days later.
(Tr. at 16:6–12.) The Court credits
Mongelli’s testimony and finds that these
emails did not alter MFS’s general practices.
Mott’s statements also indicate that he knew
the order confirmations were important.
Second, plaintiff argues that the
purchase orders were the acceptances
because, immediately after sending the
purchase orders, Mott would start discussing
the details of the order with MFS’s
engineers. (Pl. Suppl. Br., at 3 (citing Tr. at
122:23–123:18), 4 (citing Tr. at 126:6–
127:9).) Specifically, according to Mott, he
discussed his drawings and models with the
engineers “to help [Allied’s] tooling vendors
create the correct tooling.” (Tr. at 126:9–
12.) Mott believes that, “in cases where they
were repeat orders that they had tools in
house already from us, I can’t imagine them
taking that tool off the shelf, unless they
were extremely busy, they would take it off
the shelf within the week, maybe the next
week and start injecting waxes.” (Id. at
126:13–18; see also id. at 158:15–159:24
(testifying that he believed order had been
accepted after purchase order sent because
he had to speak with engineers, who guided
Allied in producing necessary tools if
tooling was not available).) Aside from the
fact that Mott’s emails belie his claim that
the purchase orders finalized the contracts,
this evidence at most indicates that MFS’s
engineers assisted Allied in preparing its
tooling before an order was confirmed, in
reliance on an imminent formation of a
contract. The Court does not credit Mott’s
speculation that MFS would begin

Third, plaintiff claims MFS backdated
the order confirmations to make them appear
as though they were prepared shortly after
the purchase order was received. (Pl. Suppl.
Br., at 5.) During the hearing, plaintiff
focused on an MFS envelope postmarked
February 27, 2012, arguing that the order
confirmation supposedly enclosed therein
was dated January 31, 2011. (See Pl. Ex.
27.) That confirmation, however, reflected a
modification to the 2011 order: a changed
delivery date as of February 23, 2012. (See
id. at ADC-0010770; Tr. at 92:1–25.)
Bianchi credibly testified that, when there
are later changes to an order, “the original
order confirmation date is always on top of
the order confirmation, that never changes,”
but that “every change on the order
confirmation is mentioned at the end of the
order confirmation itself.” (Tr. at 77:7–19;
see also Tr. 114:18, 115:17–24.) Mongelli
concurred, explaining that, following a
modification, MFS would issue a new
confirmation reflecting the modification and
date thereof, with no change to the
confirmation date itself. (Id. at 20:15–21:7,
22:12–13.) The Court also finds that
testimony credible. Thus, the postmark on
the envelope supports the conclusion that
11

MFS diligently mailed the modified order
confirmation. It does not establish that MFS
sent the original order confirmation months
later or that MFS accepted orders through
email or telephone. Indeed, Allied proffers
no credible theory for why MFS would send
any confirmations months after the tooling
had been finalized.14

Allied accepted the counteroffers when it
failed to object to their inclusion.15
Under the CISG, “standard conditions
are only incorporated if one party attempts
to incorporate the standard conditions and
the other party had reasonable notice of this
attempted incorporation.” Roser Techs., Inc.
v. Carl Schreiber GmbH, No. 11cv302
ERIE, 2013 WL 4852314, at *6 (W.D. Pa.
Sept. 10, 2013). CISG Article 19 governs
whether standard terms that are included in a
reply to an offer are included in the contract.
Article 19(1) provides that “[a] reply to an
offer which purports to be an acceptance,
but contains additions, limitations or other
modifications is a rejection of the offer and
constitutes a counter-offer.” If the additional
or different terms in the purported
acceptance do not materially alter the terms
of the offer, and if the offeror fails to object
without undue delay, then the terms of the
contract include the additional or different
terms contained in the acceptance. CISG art.
19(2). Additional or material terms that alter
an offer include terms relating “to the price,
payment, quantity and quality of the goods,
place and time of delivery, extent of one
party’s liability to the other or to the
settlement of disputes are considered to alter
the terms of the offer materially.” CISG art.
19(3).

In sum, (1) Allied’s purchase orders
were the offers; (2) generally, MFS mailed
order confirmations to Allied shortly after
receiving a purchase order and the tooling
(or after the parties agreed to a
modification); (3) on the one occasion when
MFS confirmed two orders via email
because Mongelli had been absent, she
attached the front pages of the order
confirmations
and
promptly
mailed
complete copies; and (4) there is no credible
evidence that MFS began manufacturing the
products before the confirmations were
issued and the time for objecting expired.
Finally, the Court finds that the order
confirmations were not acceptances under
the CISG, but instead were rejections and
counteroffers, because MFS properly
incorporated the GTCs and the material
terms therein. The Court also finds that

14

Relatedly, the Court finds that the evidence at the
hearing establishes the unreliability of Allied’s files.
For instance, of the five purchase orders at issue in
this case, Allied did not have matching copies of four
of them. (See Tr. 141:25–143:8, 149:15–22, 150:18–
152:6.) Instead, the correct copies of those purchase
orders in the record are from MFS’s files; the
versions Allied produced later were modified and
bear no resemblance to those sent to MFS. (See Def.
Exs. A-1, B-1, C-1, D-1; compare Def. Ex. B-1, with
Def. Ex. B-2.) Thus, the Court finds no credible
evidence to support Allied’s claims that it never
received timely order confirmations or that order
confirmations were sent months later and were
backdated, and instead finds the testimony of
Mongelli and Bianchi to be fully credible on that
issue and all the other disputed factual issues.

The evidence establishes plaintiff had
notice of MFS’s intent to include the GTCs,
including the forum selection clause, in the
contracts. Article 8 of the CISG governs the
interpretation of the parties’ statements and
conduct. A party’s statements and conduct
are interpreted according to that party’s
actual intent “where the other party or could
15

Even if the GTCs did not materially alter plaintiff’s
offer under Article 19 of the CISG, the GTCs would
have become part of the contract because plaintiff did
not object to the additional terms without undue
delay. See CISG art. 19(2).

12

confirmations included the GTCs in Italian
on the reverse side, and the front side of the
confirmations explicitly provided in English
that the GTCs would be accepted if no
objection was received within fifteen days.
It is irrelevant that the GTCs were in Italian,
especially given plaintiff’s sophistication.
See MCC-Marble Ceramic Ctr., 144 F.3d at
1387 n.9 (“MCC makes much of the fact
that the written order form is entirely in
Italian and that Monzon, who signed the
contract on MCC’s behalf directly below
this provision incorporating the terms on the
reverse of the form, neither spoke nor read
Italian. This fact is of no assistance to
MCC’s position. We find it nothing short of
astounding that an individual, purportedly
experienced in commercial matters, would
sign a contract in a foreign language and
expect not to be bound simply because he
could not comprehend its terms. We find
nothing in the CISG that might counsel this
type of reckless behavior and nothing that
signals any retreat from the proposition that
parties who sign contracts will be bound by
them regardless of whether they have read
them or understood them.”); Marciano v.
DCH Auto Grp., --- F. Supp. 2d ---, No. 11CV-9635 (KMK), 2014 WL 1612976, at *6
(S.D.N.Y. Mar. 31, 2014) (“Under New
York law, ‘[a] party is under an obligation to
read a document before he or she signs it,
and a party cannot generally avoid the effect
of a [document] on the ground that he or she
did not read it or know its contents.’”
(quoting Brandywine Pavers, LLC v.
Bombard, 970 N.Y.S.2d 653, 655 (N.Y.
App. Div. 2013))); In re Lehman Brothers
Inc., 478 B.R. 570, 587 n.19 (S.D.N.Y.
2012) (noting that, under New York law,
“[a] party’s failure to read or understand a
contract that it signs does not relieve it of its
obligation to be bound by the contract”).
Further, even though the parties never
discussed the GTCs, plaintiff does not argue
that the language on the confirmations was

not have been unaware what that intent
was.” CISG art. 8(1). “The plain language of
the Convention, therefore, requires an
inquiry into a party’s subjective intent as
long as the other party to the contract was
aware of that intent.” MCC-Marble Ceramic
Ctr., Inc. v. Ceramica Nuova D’Agostino,
S.P.A., 144 F.3d 1384, 1387 (11th Cir.
1998). If the other party was unaware of that
party’s actual intent, however, then the
party’s statements and conduct are
interpreted “according to the understanding
that a reasonable person of the same kind as
the other party would have had in the same
circumstances.” CISG art. 8(2). “In
determining the intent of a party or the
understanding a reasonable person would
have had,” the court must give “due
consideration” “to all relevant circumstances
of the case including the negotiations, any
practices which the parties have established
between themselves, usages and any
subsequent conduct of the parties.” CISG
art. 8(3). Thus, the parties’ course of dealing
may indicate that one or both parties did not
intend to be bound pursuant to Article 14
until they agreed on other material terms and
conditions, which requires an analysis
pursuant to Article 8. See Hanwha Corp. v.
Cedar Petrochemicals, Inc., 760 F. Supp. 2d
426, 432 (S.D.N.Y. 2011) (reasoning that
although one party accepted “sufficiently
definite” offer, the undisputed facts
indicated that offeror did not possess intent
to be bound because parties’ course of
dealing in twenty prior transactions
indicated that they did not begin to perform
until they reached agreement, explicit or
implicit, on all final terms of contract,
including the choice of law and forumdisputes provisions).
Here, the Court concludes that a
reasonable person in Allied’s position would
have been aware of the GTCs (and the
forum selection clause) under the
circumstances present here. The order
13

ambiguous, that the confirmations merely
directed it to a website to locate the GTCs,
or that any of its principals were unaware of
the confirmations and the fact that they
contained conditions. See Roser Techs.,
2013 WL 4852314, at *9 (reasoning that
standard conditions were not properly
incorporated into contract under CISG
because language on confirmations was
ambiguous and merely directed party to
another website, there was no evidence that
company had actual knowledge of attempted
inclusion of standard conditions or that
parties had discussed them, and there was no
evidence that company actually received
standard conditions); CSS Antenna, 764 F.
Supp. 2d at 754–55 (finding disputes as to
whether plaintiff knew or should have
known that defendant intended conditions to
apply to contract, because language referring
to general conditions was ambiguous and
did not mention forum selection clause on
its face, there was no evidence to show that
plaintiff had knowledge of conditions,
conditions were never discussed, and order
confirmations went to billing department).

Roser Techs., 2013 WL 4852314, at *9–10
(finding that order confirmations were
counteroffers because they properly
incorporated additional payment terms,
unlike standard terms also referenced in
confirmation); Belcher-Robinson LLC v.
Linamar Corp., 699 F. Supp. 2d 1329,
1336–38 (M.D. Ala. 2010) (concluding that
forum selection clause, whether material or
not, was not part of agreement regardless of
trajectory of contract formation because
plaintiff claimed to have actively objected to
forum selection and to have communicated
the objection to defendant); cf. Pervel
Indus., Inc. v. T M Wallcovering, Inc., 871
F.2d 7, 8 (2d Cir. 1989) (in non-CISG case
where plaintiff, after receiving orders from
defendant,
would
return
printed
confirmation form with terms of transaction
and arbitration provision on the reverse,
because “[w]here, as here, a manufacturer
has a well established custom of sending
purchase order confirmations containing an
arbitration clause, a buyer who has made
numerous purchases over a period of time,
receiving in each instance a standard
confirmation form which it either signed and
returned or retained without objection, is
bound by the arbitration provision.”).
Accordingly, the agreements at issue are
governed by a valid forum selection clause.

Therefore, the Court finds that MFS’s
order confirmations properly incorporated
the GTCs, and that the additional terms
therein were material under Article 19
because they related to, among other things,
the settlement of disputes. Consequently,
MFS’s order confirmations were not
acceptances of Allied’s offers, but rather
counteroffers. See CSS Antenna, 764 F.
Supp. 2d at 752 (concluding that order
confirmation was counteroffer under CISG
because it included general conditions with
forum selection clause). Plaintiff accepted
those counteroffers with the GTCs when it
did not object to them within fifteen days of
receiving the confirmations.16 See, e.g.,

parties’ course of dealings. Moreover, the cases
defendants reference do not stand for the proposition
that one party’s proposed modification to an existing
contract could become incorporated into a contract
simply because the other party consistently fails to
object to or reference the proposal, and the Ninth
Circuit expressly has found to the contrary. See
Chateau des Charmes Wines, 328 F.3d at 531
(“Nothing in the Convention suggests that the failure
to object to a party’s unilateral attempt to alter
materially the terms of an otherwise valid agreement
is an ‘agreement’ within the terms of Article 29. . . .
We reject the contention that because Sabaté France
sent multiple invoices it created an agreement as to
the proper forum with Chateau des Charmes.”).

16

Therefore, the Court does not address defendants’
alternative argument that plaintiff accepted the forum
selection clause after contract formation through the

14

B.

Enforceability of the Forum
Selection Clause

practical purposes be deprived of [its] day in
court.” M/S Bremen, 407 U.S. at 18.
Accordingly, because the forum
selection clause was incorporated into the
parties’ agreement and is enforceable, the
Court grants defendants’ motion to dismiss
for improper venue. This case must be
brought in Milan, Italy. Therefore, the Court
denies defendants’ motions to dismiss
pursuant to forum non conveniens and Rule
12(b)(6) as moot.

Because defendants have demonstrated
that the forum selection clause is valid, the
burden shifts to plaintiff “to make a ‘strong
showing’ in order to overcome the
presumption of enforceability,” Asoma
Corp. v. SK Shipping Co., 467 F.3d 817, 822
(2d Cir. 2006) (quoting New Moon Shipping
Co., 121 F.3d at 29), by demonstrating that
“enforcement would be ‘unreasonable or
unjust, or that the clause [is] invalid for
reasons such as fraud or overreaching,’”
Phillips v. Audio Active Ltd., 494 F.3d 378,
384 (2d Cir. 2007) (quoting M/S Bremen,
407 U.S. at 15). Thus, a forum selection
clause is unreasonable: (1) if its
incorporation into the agreement was the
result of fraud or overreaching; (2) if the
complaining party will be deprived of her
day in court due to the grave inconvenience
or unfairness of the selected forum; (3) if the
fundamental unfairness of the chosen law
may deprive the plaintiff of a remedy; or (4)
if the clause contravenes a strong public
policy of the forum state. Thibodeau v.
Pinnacle FX Invs., No. 08-CV-1662
(JFB)(ARL), 2008 WL 4849957, at *6
(E.D.N.Y. Nov. 6, 2008) (citing Roby v.
Corp. of Lloyd’s, 996 F.2d 1353, 1363 (2d
Cir. 1993)).

IV.

CONCLUSION

For the foregoing reasons, the Court
grants defendants’ motion to dismiss for
improper venue, and denies the motions to
dismiss pursuant to forum non conveniens
and for failure to state a claim as moot. The
Clerk of the Court shall close the case.
SO ORDERED.

_____________________
JOSEPH F. BIANCO
United States District Judge
Dated:

August 5, 2014
Central Islip, NY

***
Plaintiff is represented by Edward Birnbaum
of Herzfeld & Rubin, P.C., 40 Wall Street,
New York, N.Y. 10005, and Lawton
Squires, Lydia Ferrarese, and Mark
Weissman of Herzfeld & Rubin, P.C., 125
Broad Street, New York, N.Y. 10017.
Defendants are represented by Thomas J.
Hall and Stacey Lynn Trimmer of
Chadbourne & Parke LLP, 30 Rockefeller
Plaza, New York, 10112.

Plaintiff does not address the
enforceability prong of the analysis. It does
not argue that it was victim of either fraud or
overreaching, and the evidence shows that
the parties negotiated their agreement at
arm’s length. Further, plaintiff does not
argue that enforcement of the forum
selection clause would violate public policy
or that Italian law is so fundamentally unfair
that it may deprive plaintiff or a remedy.
Finally, there is no evidence that litigation in
Italy “will be so gravely difficult and
inconvenient that [plaintiff] will for all

15