NewPage Corporation et al v. Mayfield Creek Forestry Consultants LLC

Filing 13

ENTRY AND ORDER OVERRULING MAYFIELD'S MOTION TO DISMISS/ALTERNATIVE MOTION TO TRANSFER 5 . Defendant has agreed that all disputes, including this one, arising out of the Contract shall be adjudicated in a court of competent jurisdiction in Ohio , and has consented to personal jurisdiction in Ohio. Therefore, Defendant's Motion To Dismiss/Alternative Motion To Transfer (doc. 5 ) for lack of personal jurisdiction and improper venue must be overruled. This case remains on the docket of this Courtto be adjudicated. Signed by Judge Thomas M Rose on 12/24/14. (ep)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NEWPAGE CORPORATION, et al.,
Case No. 3:14-cv-386
Plaintiffs,
Judge Thomas M. Rose
-vMAYFIELD CREEK FORESTRY
CONSULTANTS, LLC,
Defendant.
______________________________________________________________________________
ENTRY AND ORDER OVERRULING MAYFIELD’S MOTION TO
DISMISS/ALTERNATIVE MOTION TO TRANSFER (Doc. #5)
______________________________________________________________________________
The Complaint in this matter was originally filed in the Court of Common Pleas for
Montgomery County, Ohio. It was subsequently removed to this Court by Defendant Mayfield
Creek Forestry Consultants (“Mayfield”) based upon this Court having diversity jurisdiction.
(Doc. #2.) Since the removal, this Court has determined that diversity of citizenship exists and
that it has subject matter jurisdiction.
Now before the Court is a Motion To Dismiss/Alternative Motion To Transfer filed by
Mayfield. (Doc. #5.) This Motion was initially filed (doc. #3) without attachments and was later
refiled to include the attachments (doc. #5). Mayfield’s Motion is now fully briefed and ripe for
decision.
Mayfield seeks to dismiss the Complaint filed by NewPage Corporation (“NewPage”)
and Wickliffe Paper Company LLC (“Wickliffe”)(collectively the “Plaintiffs”) pursuant to Fed.
R. Civ. P. 12(b)(6). Alternatively, Mayfield seeks to transfer this case to the United States
District Court for the Western District of Kentucky pursuant to 28 U.S.C. § 1404. NewPage and

Wickliffe respond that Ohio is the exclusive jurisdiction agreed to by Mayfield pursuant to a
contract and venue is proper in Ohio.
Mayfield seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for lack of personal
jurisdiction and improper venue. Rule 12(b)(6) provides for dismissal due to failure to state a
claim upon which relief may be granted. Rule 12(b)(2) provides for dismissal due to lack of
personal jurisdiction and Rule 12(b)(3) provides for dismissal due to improper venue.
Generally, Rules 12(b)(2) and 12(b)(3) are used to dismiss due to lack of personal
jurisdiction and improper venue. Further, the Parties have not briefed whether Rule 12(b)(6)
applies in this case. However, the resolution of Mayfield’s Motion To Dismiss turns only on
whether there is an applicable forum selection clause.
RELEVANT FACTUAL BACKGROUND
NewPage and Wickliffe filed this action on October 9, 2014, for breach of contract and
negligence against Mayfield. NewPage is a Delaware Corporation with its principal place of
business in Ohio. (Doc. #9.) Wickliffe is a limited liability company whose sole member is
NewPage. (Id.) Wickliffe operates a paper and pulp mill in Wickliffe, Kentucky (the “Wickliffe
Mill”). (Compl. ¶ 1.) The Wickliffe Mill operates its paper machine and pulp mill continuously,
with the exception of only planned and necessary maintenance shutdowns. (Id. at ¶ 11.)
Mayfield is a limited liability company located in Kentucky. (Doc. #6.) It is a forestry
consulting company that also provides grounds maintenance services. (Compl. at ¶ 2.) Mayfield
does not do business in Ohio. (Affidavit of Greg Dale (“Dale Aff.”) ¶ 4 Oct. 30, 2014.)
Wickliffe hired Mayfield to perform grounds maintenance services at the Wickliffe Mill
for the years 2009, 2010, 2011 and 2012. (Declaration of Beverly Collins (“Collins Decl.”) ¶¶ 5-

-2-

7 Dec. 8, 2014.) The grounds maintenance services were performed pursuant to purchase orders
issued by Wickliffe to Mayfield for each of those years. (Id.)
On October 11, 2012, a Mayfield employee was clearing brush and trees at the Wickliffe
Mill using a small dozer when he decided to push over a tall, leaning tree. (Compl. ¶ 12.) When
the leaning tree was pushed over, it contacted an electric line providing power to the Wickliffe
Mill. (Id. at ¶ 13.) The result was an instantaneous electrical fault and loss of power to the
Wickliffe Mill. (Id.)
Because of this incident, the Wickliffe Mill experienced an interruption in its production
and had to expend manpower to investigate and repair the electrical system. (Id. at ¶ 14.) It took
about 48 hours to get the Wickliffe Mill back up to full production. (Id.)
When Mayfield refused to compensate NewPage for its alleged damages, NewPage and
Wickliffe brought suit against Mayfield for breach of contract and negligence. (Compl.) The
breach-of-contract claim is based upon the purchase order and associated terms and conditions
issued by Wickliffe to Mayfield for the year 2012. (Id. at ¶ 6.) One of these alleged terms and
conditions, included in the NewPage Terms and Conditions dated May 1, 2005, is a forum
selection clause whereby Mayfield agreed to exclusive jurisdiction in Ohio, the application of
Ohio law and to personal jurisdiction in Ohio. (Collins Decl. Ex. A-4.)
APPLICABLE FORUM SELECTION CLAUSE?
Mayfield now wishes to dismiss this matter or transfer venue because the incident which
resulted in this lawsuit occurred in Kentucky and not within this District. NewPage and
Wickliffe argue that the forum selection clause in the NewPage Terms and Conditions dated
May 1, 2005, applies and, therefore, this Court has personal jurisdiction over Mayfield and

-3-

venue in this Court is proper. Mayfield responds that no one from Mayfield ever saw or signed
the NewPage Terms and Conditions dated May 1, 2005, until the Complaint was filed.
The purchase order at issue here is Purchase Order Number 4550693372 (the “2012
Purchase Order”). It is issued to Mayfield, as the seller, by NewPage, and is dated February 3,
2012.
All four pages of the Purchase Order contain the following statement in bold print in a
separate text box at the bottom of the page next to the signature block:
Acceptance of this order, whether in writing or by shipping goods or performing
services, is expressly limited to the most recent NewPage Terms & Conditions
dated 5/01/05 which can be found on www.newpagecorp.com. NewPage objects
to any contrary term or condition contained in any quotation, proposal,
acknowledgment, invoice, or other document originating with your firm unless
authorized parties of supplier and NewPage have both signed an agreements with
different terms and conditions, in which case that agreement controls.
Also, the first page of the Purchase Order contains the following statement in the “Material
Number & Description” section: “NEWPAGE GENERAL TERMS AND CONDITIONS
CONTROL ALL WORK PERFORMED UNDER THIS PURCHASE ORDER.” Also included
here is the statement, “PLEASE ACKNOWLEDGE RECEIPT OF THIS PURCHASE ORDER
BY FAXING AN ACKNOWLEDGMENT WITH ANY EXCEPTIONS TO BEVERLY
COLLINS….” Finally, next to the statement and in the signature block on the fourth and final
page of the Purchase Order appears the signature of Greg A. Dale, who is a partner/co-owner and
general manager of Mayfield.
The NewPage Terms and Conditions Effective May 1, 2005, include the following forum
selection clause:
The Contract and all performance there under shall be governed by and construed
in accordance with the internal laws of the State of Ohio applicable to agreements
-4-

made and wholly performed therein (without giving effect to principles of conflict
of law). The parties exclude the application of the United Nations Convention on
Contracts for the International Sale of Goods. All disputes arising out of the
Contract and all performance there under shall be adjudicated in a court of
competent jurisdiction in Ohio, and Seller hereby consents to personal jurisdiction
in Ohio. Upon mutual agreement, such disputes may be resolved by arbitration or
mediation.
Mayfield argues that the Terms and Conditions Effective May 1, 2005 should not be a
part of the Contract. This argument fails, however, because the 2012 Purchase Order expressly
incorporates by reference the Terms and Conditions Effective May 1, 2005 into the Parties’
Contract. See Keybank National Association v. Southwest Greens of Ohio, L.L.C., 988 N.E.2d
32, 39 (Ohio Ct. App. 2013)(in Ohio, separate agreements may be incorporated by reference into
a signed contract). Further, when terms and conditions located on a website are expressly
incorporated by reference in a purchase order, courts generally hold that those terms and
conditions become a part of the agreement between the parties. See Infinity Fluids, Corp. v.
General Dynamics Land Systems, Inc., No. 12-40004-TSH, 2013 WL 3158094 (D. Mass. June
19, 2013); Magid Glove & Manufacturing Safety Company, LLC v. Tower International, Inc.,
No. 10 C 7377, 2011 WL 1118883 (N.D. Ill. Mar. 25, 2011); Spartech CMD, LLC v.
International Automotive Components Group North America, Inc., No. 08-13234, 2009 WL
440905 (E.D. Mich. Feb. 23, 2009); Pentecostal Temple Church v. Streaming Faith, LLC, No.
08-554, 2008 WL 4279842 (W.D. Pa. Sept. 16, 2008).
Mayfield further argues that it was surprised and will be hardshipped by the
incorporation of the Terms and Conditions Effective May 1, 2005 because it was never presented
with the Terms and Conditions Effective May 1, 2005. This argument too fails because the
language incorporating the Terms and Conditions Effective May 1, 2005 is plain, clear and

-5-

conspicuous in the Purchase Order that Mayfield signed and Mayfield did not notify NewPage of
any exceptions nor did Mayfield ask for a copy of the Terms and Conditions Effective May 1,
2005. (Collins Decl. ¶ 8.) Finally, because Mayfield does not deny that it signed the Purchase
Order, it is presumed to have known all of the contents of the Purchase Order and to have
assented to them. Discount Drug Mart, Inc. v. Devos Ltd., No 1:12 CV 00386, 2013 WL
5820044 at *4 (N.D. Ohio Oct. 29, 2013).
Finally, Mayfield cites Discount Drug Mart for the proposition that incorporation of the
Terms and Conditions Effective May 1, 2005, which includes the forum selection clause, will
cause “surprise and hardship.” However, this finding in Discount Drug Mart is distinguishable
from this case.
The Discount Drug Mart court found that, despite incorporation language in a contract
directing a party to the contract to a website that contained the terms and conditions, the terms
and conditions did not become a part of the contract for that reason because the plaintiff retained
the power to unilaterally modify the contract, which is not the case here, and because there was
no indication that the website contained the relevant terms at the time the contract was executed,
which is not the case here. The Discount Drug Mart also found the terms and conditions did not
become a part of the contract because the terms and conditions had changed several times. In this
case, NewPage has changed the terms and conditions since the 2012 Purchase Order but there is
no indication that the Terms and Conditions Effective May 1, 2005 were not in existence on the
website during 2012.
In the alternative, Mayfield seeks to transfer venue to the federal district court where the
Wickliffe Mill is located. Mayfield asserts that this action could have been brought in the

-6-

Western District of Kentucky, Paducah Division, the witnesses to the incident are in Wickliffe,
Kentucky, “it makes sense for the parties to litigate the action there,” such a transfer will not be
detrimental to the Plaintiffs because the Wickliffe Mill is located in Wickliffe, Kentucky, and
NewPage’s personnel with pertinent information are located at Wickliffe, Kentucky. However,
as more fully set forth above, Ohio is the exclusive jurisdiction and venue agreed to by Mayfield.
See Atlanta Marine Construction Co. v. United States District Court for Western District of
Texas, 134 S. Ct. 568, 579 (2013)(a proper application of the transfer statute requires that a
forum selection clause be given controlling weight in all but the most exceptional
circumstances).
Mayfield argues that the Plaintiffs are overreaching in an attempt to enforce the forum
selection clause. However, as more fully set forth above, Mayfield was or should have been
aware of its agreement to the forum selection clause at issue here. This can hardly be said to be
“overreaching” on the part of the Plaintiffs.
CONCLUSION
In sum, the forum selection clause is enforceable as a matter of law. Mayfield has agreed
that all disputes, including this one, arising out of the Contract shall be adjudicated in a court of
competent jurisdiction in Ohio, and has consented to personal jurisdiction in Ohio. Therefore,
Mayfield’s Motion To Dismiss/Alternative Motion To Transfer (doc. #5) for lack of personal
jurisdiction and improper venue must be overruled. This case remains on the docket of this Court
to be adjudicated.

-7-

DONE and ORDERED in Dayton, Ohio this Twenty-Fourth day of December, 2014.

s/Thomas M. Rose
_______________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Counsel of Record

-8-