RIGNEY v. MINMETALS, INC.

Filing 24

OPINION, ( SIGNED BY HONORABLE JOEL H. SLOMSKY ON 10/22/12. ) 10/22/12 ENTERED AND COPIES E-MAILED.(gn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIAM RIGNEY & GMGROUP, LTD. :
:
:
Plaintiffs,
:
:
v.
:
:
MINMETALS, INC.
:
:
:
Defendant.
:

CIVIL ACTION
No. 12-2608

OPINION
Slomsky, J.
I.

October 22, 2012

INTRODUCTION
Before the Court are two motions: 1) Defendant Minmetals, Inc.’s Motion to Dismiss

Plaintiffs’ Complaint or Stay and Compel Arbitration or, In the Alternative, to Transfer Venue
(“Defendant’s Motion to Dismiss”) (Doc. No. 6), and 2) Plaintiffs’ Cross Motion for a Trial by
Jury and Stay of Arbitration, Pending such Trial (“Plaintiffs’ Cross Motion”) (Doc. No. 8).
On April 30, 2012, Plaintiffs William Rigney (“Plaintiff Rigney”) and GMGroup, Ltd.
(“Plaintiff GMGroup”) (collectively referred to as “Plaintiffs”), filed a Complaint against
Defendant Minmetals, Inc. (“Defendant”) in the Court of Common Pleas of Chester County.
(Doc. No. 1-1 ¶ 5.)1 Plaintiffs’ claims arise out of an employment relationship with Defendant,
during which the parties entered into multiple written agreements. At the heart of this dispute is

1

The Complaint and accompanying exhibits were attached to Defendant’s Notice of
Removal as “Exhibit A.” (Doc. No. 1 at 5-38.) For purposes of this Opinion, the Court will cite
to the Complaint as “Doc. No. 1-1.”
1

the question of which of the writings governs. Defendant Minmetals contends that the parties are
bound by the January 2009 writing (the “Initial Contract”) (Doc. No. 1-1, Ex. A) and the July
2009 writing (the “Second Contract”). (Id., Ex. C.) The Initial Contract, effective January 1,
2009, contains a “Jurisdiction and Forum Selection” provision. The Second Contract, effective
July 1, 2009, states “[t]his agreement is additional [sic] to the current agreement between Bill
Rigney and Minmetals Inc.” (Id.) Plaintiff, on the other hand, alleges that the September 2010
writing (the “Third Contract”) is the only valid contract between the parties. There are two drafts
of the Third Contract which are essentially similar in their content except for the amount of
compensation and bonus to be paid to Rigney. Both drafts of the Third Contract, attached to
Plaintiffs’ Complaint, are effective July 1, 2012 and state “[t]his agreement will replace the
agreement between Bill Rigney and Minmetals Inc. From July 2009.” (Id., Ex. E, F.) Defendant
disputes the validity of the Third Contract.
The Complaint alleges the following causes of action against Defendant: (1) a violation of
the Wage Payment and Collection Law, 43 Pa. Cons. Stat. 260.1 et seq. (Id. 1-1 ¶¶ 25-45); (2) a
breach of contract by Defendant based on the Third Contract (Id. ¶¶ 46-50);2 and (3) a declaration
that only the Third Contract is valid. (Id. ¶¶ 51-56.)
On May 24, 2012, following removal of this matter to federal court, Defendant
Minmetals filed the instant Motion to Dismiss, relying on the arbitration and forum selection
clauses contained in the Initial Contract and the Second Contract. (Doc. No. 6.) In response,
Plaintiffs filed a Reply to Defendant’s Motion to Dismiss and a Cross Motion for a Trial by Jury
2

The violations contained in Counts I and II are based on the Third Contract, despite
Defendant’s contention that this contract is not binding on the parties. As such, the question of
which contract governs is crucial to the disposition of this dispute.
2

and Stay of Arbitration, Pending Such Trial. (Doc. No. 8.) Additional reply briefs were
submitted by both parties. (Doc. Nos. 9, 10.) On July 12, 2012, a hearing was held on
Defendant’s Motion to Dismiss and Plaintiffs’ Cross Motion. (Doc. No. 21.)
For reasons that follow, this Court will grant Defendant’s request to transfer venue to the
United States District Court for the District of New Jersey.3
II.

FACTUAL BACKGROUND
Plaintiff, William Rigney, is a Pennsylvania resident. (Doc. No. 1-1 ¶ 1.) Plaintiff

GMGroup, LTD is a Pennsylvania corporation using the fictitious name Global Marketing
Group.4 (Id. ¶ 2.) Defendant Minmetals is a New Jersey corporation engaged in the sale of
minerals and metals, including specialty products such as rare earth chemicals. (Doc. No. 6 at 2.)
Plaintiffs’ claims arise out of an employment relationship between the parties.

3

In deciding Defendant’s Motion to Dismiss and Plaintiffs’ Cross Motion, this Court has
considered the following: Defendant Minmetals, Inc.’s Motion to Dismiss Plaintiffs’ Complaint
or Stay and Compel Arbitration or, In the Alternative, to Transfer Venue (Doc. No. 6), Plaintiffs’
Reply to Defendant’s Motion to Compel Arbitration or In the Alternative, to Transfer and Cross
Motion for a Trial By Jury and Stay of Arbitration, Pending Such Trial (Doc. No. 8), Defendant’s
Reply Brief (Doc. No. 9), Reply Brief to Defendant’s Answer to Cross Motion Requesting a Trial
By Jury etc. (Doc. No. 10), Proffer of Plaintiffs for the Purposes of Hearing on Motions Related
to Arbitration (Doc. No. 19), Reply to Plaintiffs’ Proffer for the Purposes of Hearing on Motions
Related to Arbitration (Doc. No. 20), the arguments of counsel at the July 12, 2012 hearing (Doc.
No. 21), and Defendant’s Exhibits submitted to the Court at the July 12, 2012 hearing (“Hr’g
Exs.”)
4

According to the Complaint, both Plaintiffs reside at 1311 South Concord Road, West
Chester, Pennsylvania. (Doc. No. 1-1 ¶ 1.) It is unknown what type of business GMGroup
conducts. Defendant’s Hearing Exhibit 29 states: “On information and belief, Rigney has some
association with a certain corporation formed and existing under the laws of the Commonwealth
of Pennsylvania, known as GMGroup Ltd.” (Hr’g Ex. 29, at 2 n.2.)
3

In January and February 2009, Plaintiff GMGroup5 and Defendant entered into the Initial
Contract which had an Addendum. (Doc. No. 1-1, Exs. A and B.) The Initial Contract engaged
Plaintiffs as independent contractors to handle sales of Defendant’s products on a commission
basis. It was signed on January 23 and February 6, 2009 by a representative of Defendant
Minmetals and Plaintiff Rigney, respectively.6 (Id., Ex. A.) The Addendum was signed in late
20097 by a representative of Defendant Minmetals and Plaintiff Rigney on behalf of Global
Marketing Group, respectively. (Id., Ex. B.)
The Initial Contract had a two year term, which automatically terminated in January 2011
unless it was extended by both parties in writing. (Id., Ex. A at 4-5.) The contract provisions
governing the term and termination of the agreement provide:
4.1.

Term. The term of this Agreement shall be Two year(s) from the date of this
Agreement (the “Term”). The Term may be extended upon mutual
agreement of the parties hereto, for up to a period of one additional two year
Terms [sic] upon mutual agreement of the parties to this Agreement. To be
effective, such agreement must be in a signed writing or reflected in an
authenticated electronic or digital communication.

4.2.

Termination By Either Party. This Agreement may be terminated by
Representative by giving written notice to MINMETALS at least one hundred
eighty (180) days before the date of expiration of this Agreement or any

5

Plaintiffs and Defendant disagree about who entered into the Initial Contract with
Defendant. Defendant believes Bill Rigney entered into the Initial Contract with Defendant.
However, Plaintiffs believe GMGroup entered into the Initial Contract. For purposes of the
analysis here, this difference is not material. As such, this Opinion will refer to Plaintiffs
collectively.
6

Plaintiffs’ sales responsibilities are described in Section 2 of the Initial Contract.

7

The signatures on the Addendum are dated December 6, 2009 and January 6, 2009,
respectively. This Court presumes the January 6, 2009 date was incorrectly written and should
have been January 6, 2010. The exact dates of these signatures are not material to this Court’s
analysis.
4

extension thereof. MINMETALS may terminate this Agreement at any time
by giving Representative at least one hundred eighty (180) days prior written
notice of its intention to terminate. To be effective notice must be
unequivocal and must signify the terminating party’s intention to terminate.
No indemnity, damages or other compensation shall be payable to either party
on account of such termination.
(Id., Ex. A at 4.) In addition, Section 10 of the Initial Contract sets forth what constitutes
effective notice, and provides contact information for both parties to whom notice should be sent
as well as the following condition:
Any correspondence or notice required to be given under this Agreement shall be
deemed given when delivered, if delivered, or given three (3) business days after it
was dispatched by registered or express mail, postage prepaid, to the address shown
above or to such other address as to which the addresses shall have given written
notice.
(Id., Ex. A at 7, ¶ 10.) The Initial Contract also contains the following provisions requiring
arbitration if the parties cannot reach an amicable resolution.
11.1.

If a dispute arises between the MINMETALS and the Representative or its
principals, the parties shall cause their senior executive officers to meet to
attempt an amicable resolution. If an amicable resolution cannot be made
within 30 days (or such longer period as the parties may agree upon)
following receipt of a notice from a party that a dispute exists, then the
provisions of Section 11.2 shall apply.

11.2.

Any controversy or claim arising out of or relating to this Agreement, or any
purchase order hereunder, or the formation or breach hereof or thereof, shall
be determined by arbitration before a panel of three neutral arbitrators
administered by the International Centre for Dispute Resolution in
accordance with its International Arbitration Rules. The place of arbitration
shall be Weehawken, New Jersey, the language of the arbitration shall be
English and judgment upon any awards may be entered in any court having
jurisdiction. The arbitrators shall have the power to grant restraining orders,
injunctions and other forms of equitable relief and to permit reasonable prehearing discovery and may enter interim awards as they deem appropriate.
If any one or more of the arbitrators shall resign, die or become incapacitated,
the remaining arbitrators may continue the proceedings and may render an
award on behalf of the panel. If all of the appointed arbitrators resign,
5

become incapacitated or die, then the appointing authority shall appoint three
successors to continue and conclude the proceedings and render an award.
(Id., Ex. A at 7.) Additionally, the Initial Contract’s integration clause provides:
13.5

Entire Agreement, No Amendments or Waivers. This Agreement, together
with the Exhibits constitutes the entire agreement between the parties with
respect to the Products and the services of Representative. Any and all of the
prior agreements or understandings between the parties, whether oral or
written, with respect to the subject matter hereof are canceled. Failure of
either party at any time to require strict performance of any provisions hereof
shall not affect its right to require full performance thereof at any time
thereafter. The waiver by either party of a breach of any provision shall not
constitute a waiver of any subsequent breach thereof or nullify the effect of
such provision. Representative acknowledges that it is not relying upon any
statement or representation by MINMETALS other than this Agreement.
Oral amendments, oral waivers and purported oral terminations are void. The
parties have negotiated this Agreement in good faith and no adverse inference
shall be drawn against any party for its part in the drafting or revisions to this
Agreement. All Exhibits to this Agreement and Recitals are incorporated
herein by reference and are part of this Agreement.

(Id., Ex. A at 8.) Finally, the Initial Contract includes a forum selection clause, which provides
that the contract terms are construed under New Jersey law and that the parties consent to
exclusive jurisdiction in New Jersey state and federal courts. The provision states as follows:
13.6

Jurisdiction and Forum Selection. This Agreement shall be construed in
accordance with and governed by the United States Arbitration Act, and the
laws of the State of New Jersey, excluding any law or rule that might cause
the application of the laws of any other jurisdiction. The parties consent to
the exclusive jurisdiction of the state and federal courts sitting in New Jersey
and agree that such courts shall have the authority to grant and enter orders
and judgments in aid of arbitration, including, without limitation, temporary
restraining orders, injunctions and other equitable relief pending the final
determination by the arbitrators of any dispute.

(Id., Ex. A at 8, ¶ 13.6.)
The Addendum to the Initial Contract contains a provision granting Plaintiffs additional
sales rights and provides:
6

This Addendum to the Rare Earth Chemical Products Sales Representative
Agreement . . . between MINMETALS, INC. . . . and GLOBAL MARKETING
GROUP LTD . . . is intended to modify and supplement the Rare Earth Chemical
Products Sales Representative Agreement (“Agreement”).
Representative is hereby granted the exclusive right to sell Products in the Republic
of Mexico and in all of South America to Customers in accordance with all of the
terms and conditions of the Rare Earth Chemical Products Sales Representative
Agreement.
(Id., Ex. B.)
In July 2009, Plaintiff and Defendant entered into an additional written agreement, the
Second Contract, which was signed by “Bill Rigney, GMG” and “Li Zheng, Minmetals Inc.” in
August 2009. (Id. ¶ 11.)8 Both parties performed under the Second Contract. (Id. ¶ 11.)
Included in the Second Contract is the following provision:9
This agreement is additional to the current agreement between Bill Rigney and
Minmetals Inc. This agreement will be reviewed at the end of 2009.
(Doc. No. 6, Ex. 1 at 3.)
In approximately August 2010, the parties engaged in contract negotiations, during which
a number of proposals for a new employment contract were exchanged (the “Third Contract”).
(Doc. No. 1-1, ¶ 13.) For example, one draft provided Plaintiff Rigney with a salary of $7,000
per month (Id. ¶ 14; see also id., Ex. D), while a second draft lowered Plaintiff Rigney’s salary to
$6,000 per month. (Id. ¶ 15; see also id., Ex. E.) Both drafts of the Third Contract contained the
following provision:

8

A partially executed copy of the Second Contract was attached to the original
Complaint as “Exhibit C.” A fully executed copy of the Second Contract is attached to
Defendant’s Motion to Dismiss as “Exhibit 1.” (Doc. No. 6, Ex. 1.)
9

For purposes of this Opinion, there are no other dispositive changes in the Second

Contract.
7

This agreement will replace the agreement between Bill Rigney and Minmetals Inc.
from July 2009. This agreement will be reviewed every 12 months.
(Id., Exs. D, E.)
On August 31, 2010, Li Zheng, a General Manager employed by Defendant, advised
Plaintiff Rigney by e-mail that he would sign the “new contract soon.” (Id., ¶ 16; see also id.,
Ex. F.) Thereafter, on September 2, 2010, Andrew DaoJing Liu, President and Chairman of
Minmetals, sent an e-mail allegedly confirming the terms of the Third Contract.10 (Id., ¶ 17; see
also id., Exs. G and I.) According to Plaintiffs, the Third Contract provided Plaintiff Rigney with
an annual salary of $70,000. (Id. ¶ 18.) In addition, Plaintiff Rigney alleges that the Third
Contract gave him additional responsibilities including, but not limited to, identifying and
developing new value added products, as well as toll production of products.11 (Id., ¶ 20.)
According to Plaintiffs, the parties performed and operated under the terms of the Third Contract.
(Id., ¶ 21.) Plaintiffs maintain that the Third Contract replaced the previous contracts and that it
is the only valid contract between the parties. (Id., ¶¶ 19, 22.) However, no fully executed Third
Contract has been submitted by Plaintiffs and Defendant disputes its validity.
On February 28, 2011, Defendant terminated its relationship with Plaintiffs. (Id., ¶ 24.)
Thereafter, on April 30, 2012, Plaintiffs filed their Complaint against Defendant in the Court of
Common Pleas of Chester County, Pennsylvania. (Doc. No. 1 ¶ 5.) On May 11, 2012,
Defendant filed a Notice of Removal to this Court based on diversity of citizenship jurisdiction.

10

According to the Complaint, “Exhibit G” is an e-mail written in Chinese from Andrew
DaoJing Liu to Plaintiff Rigney confirming the terms of the Third Contract. (Doc. No. 1-1,
¶ 17.) “Exhibit H” is the alleged English translation of that e-mail, as provided by Defendant.
(Id.)
11

“Toll production of products” is not described in the Complaint.
8

(Doc. No. 1.) In addition, on May 22, 2012, pursuant to the terms of the Initial Contract between
the parties, Minmetals filed an arbitration demand12 against Plaintiff Rigney with the
International Centre for Dispute Resolution, pursuant to Section 11.2 of the Initial Contract.
(Doc. No. 6 at 2.)
On May 24, 2012, Defendant filed the instant Motion to Dismiss, arguing that the
Complaint should be dismissed in its entirety, or stayed pending arbitration pursuant to the
arbitration clause in the Initial Contract. Defendant further argues that Plaintiff Rigney’s Wage
Payment and Collection Law claim and GMGroup’s claim for declaratory relief must be
dismissed as a matter of law. In the alternative, if the Court finds that arbitration is not
appropriate, Defendant requests that the case be transferred to the United States District Court for
the District of New Jersey pursuant to the forum selection clause contained in the Initial
Contract.
In response, Plaintiffs filed a Cross Motion for a Trial by Jury and Stay of Arbitration
Pending Such Trial, pursuant to Section 4 of the Federal Arbitration Act. (Doc. No. 8.)
Plaintiffs contend that whether arbitration should be compelled here is governed by Section 4 of
the Federal Arbitration Act, which requires a jury trial in this case to determine if a contract with
a valid arbitration clause exists. In support of their argument, Plaintiffs rely on a Third Circuit

12

The dispute before the International Centre for Dispute Resolution, entitled Minmetals,
Inc. v. William J. Rigney, alleges eleven claims against Rigney. Claim I is for breach of contract,
Claim II is for a breach of post-termination confidentiality, Claim III is for a violation of the posttermination non-compete clause, Claim IV is for indemnification, Claim V is for trademark and
name infringement, Claim VI is for a trade secret violation, Claim VII is for conversion of
propriety product samples, Claim VIII is for conversion of commercial documents, Claim IX is
for tortious interference with contract, Claim X is for unjust enrichment, and Claim XI is for
personal liability. (Hr’g Ex. 29.)
9

case, which found:
Before a party to a lawsuit can be ordered to arbitrate and thus be deprived of a
day in court, there should be an express, unequivocal agreement to that effect. If
there is doubt as to whether such an agreement exists, the matter, upon a proper
and timely demand, should be submitted to a jury. . . . The district court, when
considering a motion to compel arbitration which is opposed on the ground that
no agreement to arbitrate had been made between the parties, should give to the
opposing party the benefit of all reasonable doubts and inferences that may arise.
Par-Knit Mills, Inc. V. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980).
III.

LEGAL STANDARD
Defendant has moved to dismiss or stay and compel arbitration, or in the alternative to

transfer this matter to the United States District Court for the District of New Jersey. A district
court may transfer a case pursuant to 28 U.S.C. § 1404(a), “for the convenience of parties and
witnesses, in the interest of justice” to “any other district or division where it might have been
brought or to any district or division to which all parties have consented.”
A moving party seeking to transfer a case bears the burden of establishing that: (1) venue
is proper in the transferee forum, (2) transfer is more convenient for the parties and witnesses,
and (3) transfer would be in the interest of justice. Lehr v. Stryker Corp., No. 09-2989, 2010 WL
3069633, at *3 (E.D. Pa. Aug. 4, 2010). While there is ordinarily a strong presumption in favor
of a plaintiff’s choice of forum, a court has “broad discretion to determine, on an individualized,
case-by-case basis, whether convenience and fairness considerations weigh in favor of transfer.”
Jumara v. State Farm Ins. Co., 55 F.3d 873, 883 (3d Cir. 1995); see also Hollander v. Hospira,
Inc., No. 10-235, 2010 WL 4751669, at *3 (E.D. Pa. Nov. 22, 2010) (granting a motion to
transfer because justice was best served by transfer); see also Inaganti v. Columbia Props.
Harrisburg, LLC, No. 10-1651, 2010 WL 2471671, at *2 (E.D. Pa. June 15, 2010) (recognizing
10

that § 1404(a) transfer analysis is flexible and must be made on the unique facts of each case).
Therefore, the burden is on the moving party to show that “all relevant things considered, the
case would be better off transferred to another district.” In re United States, 273 F.3d 380, 388
(3d Cir. 2001) (internal quotations and citation omitted).
In Jumara, the Third Circuit set forth “private interest” and “public interest” factors that a
district court may consider in deciding a motion to transfer. 55 F.3d at 879-80. First, the
“private interests” established in Jumara include:
[P]laintiff’s forum preference as manifested in the original choice, the defendant’s
preference, whether the claim arose elsewhere, the convenience of the parties as
indicated by their relative physical and financial condition, the convenience of the
witnesses but only to the extent that the witnesses may actually be unavailable for
trial in one of the fora, and the location of books and records (similarly limited to the
extent that the files could not be produced in the alternative forum).
Id. at 879 (internal citations omitted). Second, the “public interests” discussed in Jumara
include:
[T]he enforceability of the judgment, practical considerations that could make the
trial easy, expeditious or inexpensive, the relative administrative difficulty in the
two fora resulting from the court congestion, the local interest in deciding local
controversies at home, the public policies of the fora, and the familiarity of the trial
judge with the applicable state law in diversity cases.
Id. at 879-80 (internal citations omitted).
A forum selection clause is valid if there has “been no ‘fraud, influence, or overweening
bargaining power.’” Id. (quoting Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972)). If a
forum selection clause is found to be valid, it “is treated as a manifestation of the parties’
preferences as to a convenient forum” and the plaintiff has “the burden of demonstrating why
they should not be bound by their contractual choice of forum.” Id. at 880.

11

IV.

DISCUSSION
Defendant moves to dismiss Plaintiffs’ Complaint or stay this matter pending arbitration

or, in the alternative, to transfer venue to the United States District Court for the District of New
Jersey. Defendant contends that the provisions of the Initial Contract, which were adopted in
the Second Contract, governing arbitration and forum selection are controlling. Plaintiffs
oppose Defendant’s motion, maintaining that the Initial Contract was not valid because it was
superceded or modified by the Third Contract, which did not contain an arbitration or forum
selection provision.
Regarding the first “private interest” Jumara factor, it is apparent that the parties
manifested a preference to litigate any dispute in the United States District Court for the District
of New Jersey. This district was the designated forum in the Initial Contract. It is well-settled
that a party may move to transfer a case to another federal court based on a valid forum selection
provision pursuant to 28 U.S.C. § 1404(a), which provides:
For the convenience of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or division where it might
have been brought or to any district or division to which all parties have
consented.
See Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 297-99 (3d Cir. 2000) (“It is clear
that a party may bring a motion to transfer from the initial federal forum to another federal court
based on a valid forum selection clause.”).
Here, Plaintiffs’ claims are based on conduct occurring during the two year period of
time that the Initial Contract was in effect, from January 2009 to January 2011. (Doc. No. 1, Ex.
A at 4 ¶ 4.1.) The Initial Contract contains valid binding arbitration and forum selection

12

provisions. Moreover, termination of the Initial Contract had to be provided by the terminating
party in writing and “must be unequivocal and must signify the terminating party’s intention to
terminate.” (Id. at 4 ¶ 4.2.)
This Court has not been presented with any unequivocal evidence of termination or
modification of the Initial Contract as required by paragraph 4.2 of the Initial Contract. To
overcome this deficiency, Plaintiffs argue that the parties performed under the Third Contract,
which states, “[t]his agreement will replace the agreement between Bill Rigney and Minmetals
Inc. from July 2009.” (Id., Ex. E.) This illustrates, according to Plaintiffs, that the Third
Contract was in effect. However, the Third Contract also is not signed by either party, and the
Initial Contract explicitly states that “[o]ral amendments, oral waivers and purported oral
terminations are void.” (Id., Ex. A ¶ 13.5.) Furthermore, the Third Contract states that it will
replace the July 2009 agreement. July 2009 is the date of the Addendum, not the Initial
Contract. The replacement language indicates at best that the parties intended the Third
Contract to modify or supersede the Addendum, rather than replace the Initial Contract. (Id.,
Ex. E.)
At the July 12, 2012 hearing before this Court, Plaintiffs relied on e-mails between
Plaintiff Rigney and Li Zheng, an employee of Defendant. These e-mails, dated August 31,
2010 and September 13, 2010, however, only reference future terms of an employment
arrangement between Defendant and Plaintiff. For example, in an e-mail dated September 13,
2010, Rigney states, “[i]f my salary is $70,000 for 12 months then the monthly salary should be
5833/month.” (Id., Ex. I.) In an e-mail dated August 31, 2010, Mr. Zheng stated that he “will
be signing” a new contract referenced therein. (Id., Ex. F.) However, there is no evidence that a
13

new contract was signed.
Accordingly, the evidence in the record reflects that there was no written notice of
termination of the Initial Contract as required of a terminating party under paragraph 4.2 of the
Initial Contract. Any oral agreements to the contrary are void, as specifically prohibited by the
Initial Contract in paragraph 13.5. Thus, the Initial Contract remains valid. It is therefore
evident that the forum selection clause of the Initial Contract controls this dispute. Paragraph
13.6 of the Initial Contract, under the heading “Jurisdiction and Forum Selection,” states, in
pertinent part, that “[t]he parties consent to the exclusive jurisdiction of the state and federal
courts sitting in New Jersey.” (Id., Ex. A at ¶ 13.6.) Plaintiffs argue that the Court should not
transfer venue in this case because there is no forum selection clause in the Third Contract.
While it is true that the Third Contract does not contain a forum selection clause, there is no
evidence that the Initial Contract was terminated. The forum selection clause in the Initial
Contract remains in full force.
Plaintiffs also argue that Defendant improperly challenges venue after removal to federal
court. This Court disagrees. Venue is proper in this case in the Eastern District of Pennsylvania
because Plaintiffs reside in the Eastern District and Plaintiffs and Defendant transacted business
in the Eastern District. Venue is also proper in the District of New Jersey, as the Defendant’s
principal place of business is in New Jersey and Plaintiffs transacted business there. Thus, the
forum selection clause agreed to by the parties as part of the Initial Contract controls.
In addition, the Court has considered the balance of the “private interest” and “public
interest” factors set forth in Jumara. While many of the Jumara factors are neutral as to whether
this case should be transferred, some factors do apply and favor a transfer of this case. A New
14

Jersey court would be more familiar with New Jersey law which governs the dispute here. That
court would be in a better position to apply New Jersey law than this Court. Moreover, it is
easier for a court in the District of New Jersey to enforce a judgment. While books and records
of the parties may be located in both Pennsylvania and New Jersey and there appears to be no
overriding local interest or public policy favoring New Jersey, the fact that the parties have
designated in the Initial Contract the District of New Jersey for dispute resolution is the
overriding consideration for transfer of this case.
Therefore, this Court will not dismiss the Complaint nor compel arbitration, but will
transfer this matter to the District of New Jersey.
V.

CONCLUSION
As the Third Circuit noted in Salovaara, “as a general matter, it makes better sense,

when venue is proper but the parties have agreed upon a not-unreasonable forum selection
clause that points to another federal venue, to transfer rather than dismiss.” 246 F.3d at 299.
For the above reasons, this Court will grant transfer of this matter to the United States District
Court for the District of New Jersey.
An appropriate Order follows.

15

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIAM RIGNEY & GMGROUP, LTD. :
:
:
Plaintiffs,
:
:
v.
:
:
MINMETALS, INC.
:
:
:
Defendant.
:

CIVIL ACTION
No. 12-2608

ORDER
AND NOW, this 22nd day of October 2012, upon consideration of Defendant’s Motion
to Dismiss or Stay and Compel Arbitration or, in the alternative, to Transfer Venue (Doc. No.
6), the other filings in this case and after argument of counsel for the parties at a hearing held on
July 12, 2012, Defendant’s request to transfer venue is hereby GRANTED and it is ORDERED
that:
1.

The Clerk of Court shall transfer this case to the United States District Court for
the District of New Jersey.

2.

All pending motions are DENIED without prejudice as MOOT.

3.

The Clerk of Court shall close the above-captioned matter.

BY THE COURT:
/s/ Joel H. Slomsky
JOEL H. SLOMSKY, J.