New Excelsior, Inc. v. Amut Dolci Bielloni Srl, et al
Filing
35
ORDER denying 17 Motion to Dismiss. Signed by District Judge Max O. Cogburn, Jr on 11/18/2022. (ams)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:21-cv-193-MOC
NEW EXCELSIOR, INC.,
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Plaintiff,
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vs.
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AMUT DOLCI BIELLONI SRL,
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Defendant.
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___________________________________ )
ORDER
THIS MATTER is before the Court on Defendant Amut Dolci Bielloni Srl’s Motion to
Dismiss the Complaint for Improper Venue, pursuant to Rule 12(b)(3) of the Federal Rules of
Civil Procedure. (Doc. No. 17).
I.
BACKGROUND
This action arises from the sale of a TELIA FSC 4008 CI FLEXOPRINTING MACHINE 8
COLOR MOD. 1500 (the “TELIA FSC 4008” or “TELIA”) by Defendant, Amut Dolci Bielloni
Srl (“Defendant”), an Italian company located in Biassono, Monza, Italy, to Plaintiff, New
Excelsior, Inc. (“Plaintiff”), a North Carolina corporation, located in Brevard, North Carolina.
The sale agreement was memorialized in an Order Confirmation (“OC” or “Contract”) that was
negotiated by the Parties over a two-to-three-month period. The TELIA is used to print labels
and product identification codes on various plastic and nonporous wrappings, such as package
goods manufactured and sold by Plaintiff’s customers.
Defendant’s motion concerns the general sales conditions (“GSCs”) under which
Defendant agreed to sell the TELIA to Plaintiff. The GSCs included an exclusive forumselection clause requiring any litigation under the Contract to be filed in the competent Court in
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Milan, Italy. Defendant contends that the GSCs were incorporated by reference in all iterations
of the Detailed Sales Quote (the “DSQ”) and the four OCs submitted to Plaintiff including the
fourth OC, which Plaintiff accepted. Defendant contends that the specific terms of the GSCs
(including the exclusive forum-selection clause) were detailed throughout the negotiations in a
document titled “Abstract of Sale Conditions” (the “Abstract”). Defendant contends that the
Abstract accompanied the DSQ as well as the four iterations of the OCs. In total, the Abstract
and the incorporated GSCs were delivered to Plaintiff and its representatives five separate times.
On January 7, 2016, the fourth OC was sent to Plaintiff after the Parties negotiated a final price
of €955,000.00 for the TELIA. Defendant argues that, on January 22, 2016, Plaintiff assented to
and accepted the fourth OC and the GSCs when it made a down payment of €286,500 for the
TELIA pursuant to the payment terms of the fourth OC.
Defendant argues that, under the United Nations Convention for the International Sale of
Goods (the “CISG”), which determines when the Contract was formed (and what terms were
agreed to as of contact formation), once Plaintiff made its initial payment of €286,500 toward the
purchase price of the TELIA, it assented to and accepted the terms of the fourth OC. According
to Defendant, because the agreed-to contract included a forum selection clause requiring any suit
to be brought in Italy, this action must be dismissed for improper venue under Rule 12(b)(3) of
the Federal Rules of Civil Procedure.1
Plaintiff argues, on the other hand, that the contract did not go into effect until both parties
signed the contract on March 21, 2016. Plaintiff contends that, on this date, when it returned the
contract documents to Defendant, Plaintiff had specifically deleted the forum selection clause from
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The parties agree that if the forum selection clause was part of the contract, it covers the breach
of contract claim raised here.
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the contract. Plaintiff argues that Defendant’s communication with Plaintiff on February 25, 2016,
demonstrates that not believe a contract was formed, and negotiations continued, resulting in a
contract, signed by both parties on March 21, 2016, that did not include the proposed venue clause.
Plaintiff argues, alternatively, that even if a contract was formed before March 21, 2016,
the relationship was modified when both parties countersigned the contract on March 21, 2016,
with the omitted venue selection clause.
II.
STANDARD OF REVIEW
“[A] motion to dismiss based on a forum-selection clause should be properly treated
under Rule 12(b)(3) as a motion to dismiss on the basis of improper venue.” Turfworthy, LLC v.
Dr. Karl Wetekam & Co. KG, 26 F. Supp. 3d 496, 502 (M.D.N.C. 2014) (citations omitted).
“When an objection to venue has been raised under Rule 12(b)(3), the burden lies with the
plaintiff to establish that venue is proper in the judicial district in which the plaintiff has brought
the action.” Id. at 502 (citing Plant Genetic Sys. v. Ciba Seeds, 933 F. Supp. 519, 526 (M.D.N.C.
1996)). “In considering a motion to dismiss under Rule 12(b)(3) for improper venue, ‘the court is
permitted to consider evidence outside the pleadings. A plaintiff is obliged, however, to make
only a prima facie showing of proper venue in order to survive a motion to dismiss. In assessing
whether there has been a prima facie venue showing, we view the facts in the light most
favorable to the plaintiff.’” Id.
“The validity of a forum-selection clause raised by a Rule 12(b)(3) challenge in a
diversity action is determined according to federal law.” Turfworthy, 26 F. Supp. 3d at 502
(citing Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 650 (4th Cir. 2010)). “If the
Court accepts Defendant's argument that venue is improper based on a forum selection clause,
then [the] case must be dismissed, as the Court lacks jurisdiction to transfer a case to a court of a
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foreign nation.” Id. at 503 (citing Allen v. Lloyd’s of London, 94 F.3d 923, 926, 932 (4th Cir.
1996) (dismissing lawsuit after holding that a forum-selection clause designating the United
Kingdom as the proper forum was both mandatory and enforceable)).
Here, if the Court determines that the forum selection clause was indeed part of the
parties’ contract, then it is “presumptively valid and should be enforced unless the opposing
party clearly shows that enforcement is unreasonable under the circumstances.” Sharpe v. Ally
Fin., Inc., No. 3:17CV189-GCM, 2017 WL 5078900, at *3 (W.D.N.C. Nov. 3, 2017) (quoting
Allen, 94 F.3d at 928; Allied Dynamics Corp. v. Kennametal, Inc., No. 12-cv-5904, 2014 WL
3845244, at **5, 13 (E.D.N.Y. Aug. 5, 2014) (granting 12(b)(3) motion and holding that a forum
selection clause incorporated in the Order Confirmation was mandatory and enforceable and that
the case had to be brought in Milan, Italy). “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.”
Id. at *5 (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589–95 (1991)). “For a forum
selection clause to be deemed mandatory, jurisdiction and venue must be specified with
mandatory and exclusive language.” John Boutari & Son, Wines and Spirits, S.A. v. Attiki Imps.
& Distribs., Inc., 22 F.3d 51, 53 (2d Cir. 1994). Further, “a valid forum-selection clause pointing
to a foreign forum should be ‘given controlling weight in all but the most exceptional cases.’”
Pro Step Marketing, Inc. v. Real Estate Webmasters, Inc., No. 5:16cv72-RLV-DSC, 2017 WL
3595489, at *2 (W.D.N.C. Aug. 21, 2017) (citing Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct.
for W. Dist. of Tex., 134 S. Ct. 568, 581 (2013)).
III.
DISCUSSION
The parties in this case are all located in contracting states of the United Nations Convention
on Contracts for the International Sale of Goods (“CISG”). Therefore, the CISG governs this
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dispute. CISG, art. 1(1)(a), 15 U.S.C. App., 52 Fed. Reg. 6262 (March 2, 1987) (“This
Convention applies to contracts of sale of goods between parties whose places of business are in
different States when the States are Contracting States.”). Furthermore, the CISG governs the
formation of this contract of sale. CISG, art. 4; see also id., art. 100(1) (“This Convention applies
to the formation of a contract only when the proposal for concluding the contract is made on or
after the date when the Convention enters into force in respect of the Contracting States.”).
Therefore, the CISG must be applied, using the standard for a Rule 12(b)(3) motion to dismiss
for improper venue, to determine if the parties formed a contract that included the forumselection clause.
Thus, the CISG governs whether and when the forum selection clause at issue became a part
of the parties' agreement. The answer to this question turns on when the contract was formed—
that is, when the parties became bound by their agreement. 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 Ltd. v. Sabate USA Inc., 328 F.3d 528, 531 (9th Cir. 2003) (finding that a
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
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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”).
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. Allied Dynamics Corp.
v. Kennametal, Inc., 965 F. Supp. 2d 276, 299 (E.D.N.Y. 2013); Solae, LLC v. Hershey Can.,
Inc., 557 F. Supp. 2d 452, 458 (D. Del. 2008). Under the CISG, however, an acceptance with
different standard conditions is not actually an acceptance, but rather is a rejection and
counteroffer. VLM Food Trading Int’l, Inc. v. Ill. Trading Co., 811 F.3d 247, 251 (7th Cir.
2016); Roser Techs., Inc. v. Carl Schreiber GmbH, No. 11-302, 2013 WL 4852314, at *5 (W.D.
Pa. Sept. 10, 2013) (“Under the CISG, an acceptance with different standard conditions is not
actually an acceptance, but rather is a rejection and counteroffer.”); Norfolk S. Ry. Co. v. Power
Source Supply, Inc., No. 06-58, 2008 WL 2884102, at **6–7 (W.D. Pa. July 25, 2008) (finding
bill of sale sent after the purchase order materially altered the terms of the offer and thus
constituted a rejection of the offer and counteroffer under Article 19 of the Treaty).
Here, Defendant contends that the forum selection clause was included in all iterations of
the contract during the negotiations, and the contract, including the forum selection clause, went
into effect on January 22, 2016, when Plaintiff made the down payment of €286,500 for the
TELIA pursuant to the payment terms of the fourth OC. Plaintiff contends, on the other hand,
that the contract did not go into effect until March 21, 2016, when the parties signed the contract,
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and at that point the Italian venue clause had been omitted. Plaintiff contends, alternatively, that
even if the parties had agreed to an enforceable contract before the March 2016 date, the parties
modified the terms so that the venue provision was omitted from the contract.
The Court finds that the parties’ course of dealings before they signed the contract on
March 21, 2016, indicates that the contract did not go into effect until that date, and the terms on
that date did not include the Italian venue clause. Specifically, Plaintiff has presented evidence to
show that Defendant stated on February 25, 2016, that it would not ship the machine in question
until the final document was signed. On that date, Defendant’s employee Matteo Spinola
informed Plaintiff that to proceed with the machine’s purchase, Defendant “ha[d] to receive” a
written, signed document to have a deal. (Moorcroft Aff. ¶ 10, Ex. 3). In other words, the parties
had not agreed on a documented set of terms for the deal, if any, and Defendant understandably
required a signed document to proceed. (Id.). Plaintiff asserts that Mr. Spinola’s email made
clear that the machine would not be shipped until a final document was executed by the parties.
(Id.).
Plaintiff asserts that it made two payments, which could be classified as down payments,
but Plaintiff did not make a final acceptance payment until long after February 2016, as
Defendant concedes. (See Doc. No. 18, p. 16 noting that the second payment was 65% of the
machine’s cost). Plaintiff further asserts that even Defendant’s exhibits show that on February 25
and 26, the parties were still talking about important unresolved details. (E.g., Doc. No. 18-8,
email from Jim Kelley at New Excelsior, “Can I please get pictures of the utility connection
points, and the actual measurements of each for the cether (sic) point of the CI?”).
The parties corresponded on March 21, 2016, in an email exchange. (Moorcroft Aff., ¶¶
4–5, Exs. 1 and 2). Plaintiff’s employee Dave Moorcroft sent a document back to Defendant. (Id.
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¶ 5, Ex. 1). Moorcroft signed every page under “The Buyer” except the last page of the document
he sent back, which he signed under “For acceptance.” (Id.). Defendant’s employee Spinola
countersigned that document, returned on March 21 to Moorcroft by Defendant’s Nicholas
Dimopolous. (Id., Ex. 2). The document, signed by both parties, did not include the Italian venue
clause. (Id., Exs. 1 and 2, compare to Doc. Nos. 18-3, 18-4, not signed by the parties, containing
the clause).
Plaintiff has also presented evidence showing that Defendant’s representative
Dimopolous stated on March 21:
Attached is the countersigned Order Confirmation regarding the Bielloni Telia
press. Tomorrow, we are initiating dismantling and crating and in a few days we
will advise regarding shipment date from North Italian Port.
(Id., ¶ 5, Ex. 2). In other words, on March 21 Defendant received the document it demanded,
minus the Italian venue clause. Upon receipt, Defendant countersign every page, without
bringing up the omitted Italian venue clause. (Id. ¶ 8). Then, and only then, did Defendant
dismantle and crate the machine and begin the process of shipping it. The machine was delivered
to North Carolina around May or June 2016. (See id. ¶ 9).
Here, it is undisputed that when both parties signed the contract on March 21, 2016, the
version that Plaintiff sent back did not contain the forum selection clause at issue. Indeed, Plaintiff
intentionally had deleted the forum selection clause. Either Defendant did not notice the deleted
term, or noticed it but did not say anything to Plaintiff about it. Regardless, the forum selection
clause was not included in the final contract that both parties signed on March 21. Therefore, the
forum selection clause at issue is not enforceable against Plaintiff.
The Court further agrees with Plaintiff that, even if the parties had agreed to an enforceable
contract before the March date, the parties modified the terms so that the venue provision was
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omitted from the contract. As Plaintiff notes, courts interpreting the CISG have found that when
parties swap documents with offers, counteroffers, etc., a “battle of the forms” exists under CISG
similar to the Uniform Commercial Code, although the CISG requires less formality in both
formation and modification of contracts. See generally Zodiac Seats US, LLC v. Synergy
Aerospace Corp., 4:17-cv-410, 2020 WL 1703572, at **12–13 (E.D. Tex. April 8, 2020).
Modification can occur by agreement without additional consideration. See id.
Moreover, terms related to the extent of a party’s liability to the other party or the
settlement of disputes materially alters a contract under CISG, Art. 19(d). The CISG does not state
whether a venue clause satisfies this materiality requirement. See Belcher-Robinson, L.L.C. v.
Linamar Corp., 699 F. Supp. 2d 1329, 1336–37 (M.D. Ala. 2010). Regardless of whether the forum
selection clause is considered material under the CISG, the result is the same. That is, if the forum
selection clause is not material, the parties could modify any nonmaterial term after contract
formation through a traditional battle of the forms. Here, in March 2016, both parties modified a
nonmaterial term by signing a document that did not contain the forum selection clause. See
Belcher-Robinson, 699 F. Supp. 2d at 1336–37. Even assuming that venue selection clause is
material, the parties under the CISG may modify the contract to eliminate the venue selection
clause contained in earlier quotes or offers. Thus, the Court finds, alternatively, that even if a venue
clause was contained in earlier offers and a contract was formed before March 21, 2016, the parties
modified the contract on March 21, 2016, to omit the venue clause.
IV.
CONCLUSION
For the foregoing reasons, the Court finds that the contract at issue here did not include the
forum selection clause requiring the parties to litigate this breach of contract action in Italy.
Therefore, the Court will deny Defendant’s motion to dismiss.
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ORDER
IT IS, THEREFORE, ORDERED that Defendant’s Motion to Dismiss for Improper
Venue, (Doc. No. 17), is DENIED.
Signed: November 18, 2022
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