DANGANAN, v. GUARDIAN PROTECTION SERVICES
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 10/15/15. 10/16/15 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GUARDIAN PROTECTION SERVICES
October 15, 2015
Plaintiff, Jobe Danganan, brought this putative class
action against defendant, Guardian Protection Services
(“Guardian”), in which he challenges the legality of its home
security protection services agreements with its customers.
complaint alleges violations of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, 73 P.S. § 201.1, et seq.,
and the Pennsylvania Fair Credit Extension Uniformity Act, 73
P.S. § 2270.1, et seq.
The action was initially filed in the
Court of Common Pleas of Philadelphia County and timely removed
to this Court on the basis of diversity of citizenship.
Before the court is Guardian’s motion to transfer venue
to the United States District Court for the Western District of
Pennsylvania 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.”
The motion to transfer is grounded on a forum selection clause
allegedly found in all the agreements at issue.
It reads in
Each party hereby irrevocably agrees
that any suit, action or other legal
proceeding (“suit”) arising out of or
from, in connection with or as a result
of this Agreement shall be brought by
such party exclusively in the state
courts of record or the courts of the
United States located in the district or
county where the other party’s residence
or principal place of business is
located. Each party consents to the
exclusive jurisdiction and venue of each
such court in any such suit and waives
any objection that it may have to
Jurisdiction of [sic] venue of any such
Since the lawsuit was brought against Guardian, the
forum selection clause requires it to be filed in a state or
federal court “where [Guardian’s] . . . principal place of
business is located.”
It is undisputed that Guardian’s principal
place of business is located in Allegheny County, Pennsylvania.
Allegheny County lies within the Western District of
Thus, Guardian argues, the lawsuit belongs in that
district pursuant to the forum selection clause.
counters that the forum selection clause should not be honored
because the agreements with Guardian’s customers are contracts of
Guardian relies primarily on the Supreme Court’s
decision in Atlantic Marine Construction Co. v. U.S. District
Court, __ U.S. __, 134 S. Ct. 568 (2013).
There, the Court
explained that if venue is proper, as it is here, a decision to
transfer because of a forum selection clause in a contract must
be made under 28 U.S.C. § 1404(a).
Under these circumstances,
however, the usual § 1404(a) balancing-of-interest analysis does
No weight is to be given to plaintiff’s choice of
forum, the parties’ private interests, or the original venue’s
choice of law rules as articulated in Van Dusen v. Barrack, 376
U.S. 612 (1964).
Cf. Jumara v. State Farm Ins. Co., 55 F.3d 873,
880 (3d Cir. 1995).
The Court may only consider public interest
Atlantic Marine, 134 S. Ct. at 581-83.
As the Supreme
Court concluded, “in all but the most unusual cases
. . . , ‘the
interest of justice’ is served by holding parties to their
Id. at 583; see also Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 4 n.4 (1972).
Plaintiff seeks to distinguish Atlantic Marine on the
ground that the construction contract in that case was between
two sophisticated parties.
He argues that this court should
apply the usual balancing of interests under § 1404(a) because
the plaintiff here was a consumer who signed a form contract and
realistically had no opportunity to negotiate over its terms.
The plaintiff points out that Atlantic Marine quotes from a
concurring opinion of Justice Kennedy in Stewart Organization,
Inc. v. Ricon Corp., “The enforcement of valid forum-selection
clauses, bargained for by the parties, protects their legitimate
expectations and furthers vital interests of the justice system.”
467 U.S. 22 (1988) (Kennedy, J., concurring) (emphasis added).
The Supreme Court had before it, in Carnival Cruise
Lines v. Shute, 499 U.S. 585 (1991), the question of the
enforcement of a forum selection clause in a consumer agreement.
In that case, a passenger on a cruise ship slipped and fell while
the ship was in international waters off the Mexican coast.
had purchased the ticket in the state of Washington and boarded
the ship in Los Angeles.
The ticket had a provision that
required her to pursue any lawsuit against the cruise line in a
court in the state of Florida.
Instead, she filed suit in the
United States District Court for the Western District of
The passenger argued to the Supreme Court that the
forum selection clause should not be enforced because “the clause
was not the product of negotiation, and enforcement effectively
would deprive . . . [the passenger] of . . . [her] day in court.”
Id. at 590.
The Supreme Court disagreed.
The Court first rejected the ruling of the Court of
Appeals that “a non-negotiated forum-selection clause in a form
ticket contract is never enforceable simply because it is not the
subject of bargaining.”
Id. at 593.
It recognized that the
cruise line had a special interest in limiting the fora in which
it could be sued.
Without a forum selection clause, it would be
subject to suit in many places.
Such a clause also provides
clarity so as to avoid pretrial litigation over venue and, thus,
the unnecessary expenditure of time and money by the parties and
the waste of scarce judicial resources.
Furthermore, it was
reasonable, the Court wrote, to conclude that charges for cruises
are reduced because of the requirement that lawsuits against the
cruise line be heard in one forum.
The Supreme Court emphasized that “forum-selection
clauses contained in form passage contracts are subject to
judicial scrutiny for fundamental fairness.”
Id. at 595.
found no evidence that the forum selection clause was designed to
discourage passengers from pursuing legitimate claims.
that bad faith in choosing the forum was not an issue since the
cruise line had its principal place of business in Florida and
many of its cruise ships departed from Florida.
there was no evidence of “any fraud or overreaching.”
The similarities between Carnival and this case are
Both involved a non-negotiated consumer contract.
Both forum selection clauses required legal actions against the
corporate defendant to be filed where it maintained its principal
place of business.
In this case, the principal place of business
of Guardian is in Allegheny County, Pennsylvania.
designated place for the lawsuit is much closer to Washington,
D.C., where the plaintiff lived at the time he signed the
Guardian agreement than Florida is to the state of Washington,
the scenario in Carnival.
Both defendants have customers in many
There is also no bad faith since both
defendants have their principal places of business where suit
must be brought and conduct business there.
overreaching been shown in either action.
Nor has fraud or
As in Carnival, the
plaintiff here could have rejected the agreement if he did not
like its terms.
Significantly, the convenience of the passenger or her
choice of forum were not relevant considerations to the Supreme
Court in Carnival.
In this case, plaintiff initially brought
suit in the state court in Philadelphia which has absolutely no
connection to plaintiff or his claim for relief.
There is no
assertion, for example, that any witnesses or documents are
located in this district.
If anything, it seems reasonable that
more records and witnesses are in Allegheny County than in any
other specific location.
The Eastern District of Pennsylvania is
merely where plaintiff’s attorney is located.
currently resides in San Francisco, California, which is
approximately 300 miles closer to Pittsburgh, the county seat of
Allegheny County, where the Western District of Pennsylvania sits
than to Philadelphia where the Eastern District of Pennsylvania
In Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir.
1995), where a forum selection clause existed in an automobile
insurance policy, our Court of Appeals, without citing Carnival,
identified several private and public factors for the Court to
consider in determining whether movant had met its burden for
transfer under § 1404(a).
Id. at 879.
The private interests
included: “plaintiff’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. (citations omitted).
The public interests included: “the 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 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.”
The Court of Appeals, in Jumara, observed that a forum
selection clause is a “private expression of [the parties] . . .
venue preference” and while not dispositive, is “entitled to
Id. at 880.
It cited the Supreme
Court decision in Bremen v. Zapata Off-Shore Co., 407 U.S. 1,
(1972) for the proposition that absent “fraud, influence, or
overweening bargaining power,” the plaintiff bears the burden of
proof to show why it should not be bound by the forum selection
clause to which the plaintiff had agreed.
880; Bremen, 407 U.S. at 12-13.
Jumara, 55 F.3d at
The Supreme Court reiterated in
Atlantic Marine that where the plaintiff is “the party defying
the forum-selection clause, the plaintiff bears the burden of
establishing that transfer to the forum for which the parties
bargained is unwarranted.”
Atlantic Marine, 137 S. Ct. at 581.
Here, plaintiff has now chosen Philadelphia as his
preferred forum while defendant prefers Pittsburgh.
did not arise in either place.
It is certainly not more
convenient for plaintiff to have this action in Philadelphia
rather than Pittsburgh, which is closer to his home in
On this record, as noted above, there is no evidence
that the convenience of the witnesses or the location of books
and records favor the Eastern District of Pennsylvania.
As to the public interests, the enforcement of any
judgment is a non-issue.
Expense is not a realistic
consideration and court congestion is not a factor.
There are no
special local interests or public policies favoring one district
Plaintiff alleges only violations of Pennsylvania
The judges in the Western District of Pennsylvania are as
familiar with the laws of the Commonwealth as are the judges in
Finally, although the plaintiff alleges that the forum
selection clause was the product of fraud or overreaching, the
plaintiff has not offered any supporting evidence.
record indicates to the contrary.
contains reciprocal terms.
The forum selection clause
When a customer initiates suit, the
clause requires that suit be brought in the place encompassing
Guardian’s principal place of business.
However, if Guardian
initiates suit, the clause requires the suit to be brought in a
forum where the customer resides.
We not need decide whether Atlantic Marine applies to
consumer contracts, for the result here is the same under the
test developed by the Supreme Court in Carnival.
That test rests
ultimately on the question whether the forum selection clause is
Plaintiff has not met his burden of proof to
establish that there is fundamental unfairness to the enforcement
of the forum selection clause and to holding the parties to the
terms of their agreement.
If the forum selection clause in
Carnival passed muster, the clause in this case passes muster.
Accordingly, the court will transfer this action to the
United States District Court for the Western District of
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