BAKERY BARN INC. v. A. E. NIELSEN MASKINFABRIK APS et al

Filing 30

IT IS HEREBY ORDERED that Defendants' motion to dismiss (Doc. 27 ) is GRANTED. Plaintiff's cause of action is DISMISSED, without prejudice to reasserting its claims in the proper forum, if appropriate. Defendants' motion for a more definite statement is DENIED as MOOT. As more fully stated in the Order. Signed by Judge Cathy Bissoon on 5/21/2013. (dad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BAKERY BARN, INC.,
Plaintiff,
v.
A.E. NIELSEN MASKINFABRIK
APS., et al.,
Defendants.

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Civil Action No. 12-75
Judge Cathy Bissoon

MEMORANDUM ORDER
Before the Court is Defendants’ motion to dismiss, which was filed, along with a
supporting brief, on September 24, 2012. (Docs. 27 and 28). Plaintiff responded in opposition
thereto on October 15, 2012. (Doc. 29). This motion is ripe for disposition.
Plaintiff filed its complaint on January 20, 2012, alleging that it purchased from
Defendant A.E. Nielsen Maskinfabrik ApS (“Nielsen”) an Enrobing Bar Line for its commercial
baking business on or about June 28, 2009, for the sum of 605,800 euros. (Doc. 1 ¶ 7). Plaintiff
alleges that Defendant Cote acted as Defendant Nielsen’s agent, was its partner in a joint
venture, and was Nielsen’s distributor of this machinery in the United States. Id. ¶ 9. Plaintiff
admits that it actively negotiated the terms of the resulting sales contract for the Bar Line, which
was manufactured in Denmark, and was delivered to and assembled at Plaintiff’s facility in
Allegheny County, Pennsylvania, in November of 2009. Id. ¶¶ 10-13. Despite assurances from
Defendants that the machinery was operational and merchantable, it suffered from “numerous
and significant deficiencies[,]” which Defendants have refused to correct. Id. ¶¶ 14-15. Plaintiff
alleges that Defendants are liable to it for damages in excess of $75,000, but does not assert the
legal theory under which they seek recovery. However, it is noted that, in their response to the

instant motion, they attempt to amend their complaint by explicitly, if ineffectively, raising
claims for breach of contract and violation of warranties of merchantability and fitness for
purpose. (Doc. 29 at 4).
It is undisputed that a written contract governs the obligations of the parties with respect
to the dispute in this case. (Doc. 1 ¶ 10; Doc 28 at 2). Plaintiff explicitly invokes that contract in
its complaint, and attaches a portion of it as an exhibit thereto. (Doc. 1-2). That exhibit, in turn,
specifically references “Nielsen General Conditions of Sale and Delivery E95” as controlling all
issues that are not mentioned overtly in the particular sales terms mentioned therein. While
Plaintiff does not provide a copy of these general conditions, Defendants do so as an attachment
to their motion to dismiss. See (Doc. 28-2). Paragraph 9 of that document states:
VENUE AND CHOICE OF LAW
All disputes arising from the present contract must be
settled by the Danish Maritime and Commercial Court
(˶Sø- og Handelsretten") in Copenhagen.
For legal decision, Danish Law is applied, apart from the
reservation made in clause 8.1
Defendants argue that this forum selection clause is binding on the parties, and that this
Court should dismiss this case. Plaintiff responds that “the Contract referenced in ¶ 6 of
Defendants’ Motion to Dismiss was not attached to the Defendants’ Brief in Support.”
Additionally, Plaintiff asserts that the “Nielsen General Conditions of Sale and Delivery E95”
was not part of the documents that were executed during the sale of the Enrobing Bar Line – in

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Clause 8 states, in pertinent part, that questions of ownership of the machinery prior to full
payment will be made pursuant to the law of the country in which the sale was made. This
clause has no bearing on this case.
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spite of the fact that it is referenced explicitly in the very document that Plaintiff produces in
support of its complaint. (Doc. 29 at 1).
In ruling on a motion to dismiss, a district court may consider items integral to or
explicitly relied on in the complaint. In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280,
287 (3d Cir. 1999). A court also may consider undisputedly authentic documents attached as
exhibits to a motion to dismiss if the plaintiff’s claims are based on said documents. Pension
Benefit Guar. Corp. v. White Consul. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). While
Plaintiff disputes that the contract provided by Defendants is the same as the one that it attached
to the complaint – a fact that is easily verified, given the different dates and reference numbers
on the two documents – it is noteworthy that Plaintiff does not dispute the authenticity of the
copy of the “Nielsen General Conditions of Sale and Delivery E95.” Moreover, even
considering the apparent minor differences between the two sales terms sheets, it is incontestable
that the “Nielsen General Conditions of Sale and Delivery E95” is referenced explicitly in both
forms, and that no terms in either submission undermine the forum selection clause in the general
conditions.
“Forum selection clauses are entitled to great weight and are presumptively valid.” Wall
Street Aubrey Golf, LLC v. Aubrey, 189 F. App’x 82, 85 (3d Cir. 2006) (citations omitted). To
avoid the application of a valid forum selection clause, the resisting party must establish “(1) that
it is the result of fraud or overreaching; (2) that enforcement would violate strong public policy
of the forum; or (3) that enforcement would in the particular circumstances of the case result in a
jurisdiction so seriously inconvenient as to be unreasonable.” Moneygram Payment Sys. v.
Consorcio Oriental, S.A., 65 F. App’x 844, 846 (3d Cir. 2003). Here, Plaintiff raises none of
these assertions in its response to Defendants’ invocation of the forum selection clause. Instead,

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it attempts to undermine the clause by arguing that the general conditions of sale and delivery
were not part of the documents that were executed by the parties during the sale of the machinery
at issue. This is wholly without merit because, as stated above, the general conditions were
referenced explicitly in the very same written agreement provided by Plaintiff in support of its
complaint.
“Contracting parties are normally bound by their agreements without regard to whether
the terms thereof were read and fully understood.” Simeone v. Simeone, 581 A.2d 162, 165-66
(Pa. 1990) (citations omitted).2 Even if Plaintiff, as it contends, did not receive a copy of the
standard conditions, it had a duty to inquire as to the content of the terms that Defendants sought
to incorporate by reference. Standard Bent Glass Corp. v. Glassrobots OY, 333 F.3d 440, 44748 & n.10 (3d Cir. 2003); see also TDY Indus., Inc. v. Hamilton Sundstrand Corp., No. 07-388,
2007 WL 1740855, at *4 (W.D. Pa. June 14, 2007) (“If anything, [the plaintiff’s] . . . status as [a]
sophisticated business entit[y] only heightened [its] obligations to be familiar with the Contract,
including the terms incorporated by reference.”) (citation omitted).
Additionally, the language of the forum selection clause is unambiguous that the Danish
Maritime and Commercial Court in Copenhagen “must” be the forum in which “[a]ll disputes
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“Although the application of a forum selection clause by a federal court sitting in diversity is
determined under federal rather than state law,” “it is first necessary to decide whether the forum
selection clause is a part of the parties’ agreement,” a determination made under state law.
M.K.C. Equip. Co. v. M.A.I.L. Code, Inc., 843 F. Supp. 679, 683 (D. Kan.1994) (citation
omitted). Here, although the forum selection clause of the agreement would seem to compel the
application of Danish law, neither party has seen fit to raise a choice of law issue. Indeed, to the
extent that they have provided legal support for their arguments with respect to the forum
selection clause, the parties have avoided the invocation of Danish law altogether. Accordingly,
this Court will join in the parties apparent assumption that Pennsylvania law applies to the
determination of whether the forum selection clause was part of their agreement. See In re
Columbia Gas Sys., Inc., 50 F.3d 233, 240 n.10 (3d Cir. 1995) (where “the parties do not make
an issue of choice of law, [this Court has] no obligation to make an independent determination of
what rule would apply if they had made an issue of the matter.”) (citation and internal quotes
omitted).
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arising from the . . . contract” are brought. (Doc. 28-2 at 3). The language of the clause provides
no support for any contention that additional fora might be appropriate. Finally, it is noteworthy
that the forum selection clause does not include a jurisdiction to which this case could be
transferred under 28 U.S.C. § 1404.
Accordingly, the following ORDER is entered:

AND NOW, this 21st day of May, 2013,
IT IS HEREBY ORDERED that Defendants’ motion to dismiss (Doc. 27) is GRANTED.
Plaintiff’s cause of action is DISMISSED, without prejudice to reasserting its claims in the
proper forum, if appropriate. Defendants’ motion for a more definite statement is DENIED as
MOOT.

May 21, 2013

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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