The Cincinnati Insurance Co. v. Pacific West Construction, Inc., et al.

Filing 7

ORDER denying 4 Motion to Dismiss. A proposed discovery plan shall be filed no later than August 24, 2018. Signed by Judge William O. Bertelsman on 07/31/2018. (bjc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CIVIL ACTION NO. 1:18cv00180-WOB
THE CINCINNATI INS. CO.

PLAINTIFF

VS.

O R D E R

PACIFIC WEST CONSTRUCTION,
INC., ET AL.

DEFENDANTS

This matter is before the Court on defendants’ motion to
dismiss or, in the alternative, to transfer venue (Doc. 4).

The

Court has reviewed this motion and concludes that oral argument is
unnecessary.
The Court has reviewed this matter closely and concludes that
the forum selection clause at issue is enforceable under Ohio law.
See Preferred Capital, Inc. v. Power Eng’g Group, Inc., 860 N.E.2d
741 (Ohio 2007).

The Indemnity Agreement in question is between

for-profit, commercial entities, and there is no evidence that
defendants’ consent to the clause was obtained through fraud or
overreaching.

The clause was clearly and legibly printed in the

Indemnity Agreement under a bold heading: WAIVER OF JURISDICTION,
VENUE AND PERSONAL JURISDICTION.
Defendants were also on notice that Ohio was a possible, if
not

likely,

forum

for

the

resolution

of

disputes

under

the

contract, given that plaintiff’s headquarters is located here and
its Ohio address appears on the front page of the agreement.
Further, venue is appropriate in this district under 28 U.S.C.
§ 1391(b)(2), because the creation and management of the bond in
question largely occurred here.

And, given the enforceability of

the forum selection clause, transfer on forums non conveniens
grounds is unwarranted.

See Atlantic Marine Constr. Co., Inc. v.

United States Dist. Court for the Western Dist. Of Texas, 571 U.S.
49, 62 (2013).
Therefore, having reviewed this matter, and the Court being
sufficiently advised,
IT IS ORDERED that:
(1) Defendants’ motion to dismiss or, in the alternative, to
transfer venue (Doc. 4) be, and is hereby, DENIED; and
(2) Pursuant to Rule 26(f) of the Federal Rules of Civil
Procedure, the parties shall confer no later than August 17, 2018
to consider the nature and basis of their claims and defenses and
the possibilities for a prompt settlement or resolution of the
case, to make or arrange for the disclosures required by Rule
26(a)(1), and to develop a proposed discovery plan.
Such proposed schedule shall be filed no later than August
24, 2018.

Upon the filing of the proposed schedule, the Court will
review the plan and determine whether a preliminary pretrial
conference is needed.

In the event the Court determines that a

conference is not necessary, a scheduling order will be issued
based upon the plan filed by the parties.

In the event that the

Court determines that a conference should be held, an order
scheduling the same shall issue.
This 31st day of July, 2018.