The Porter Casino Resort, Inc. v. Georgia Gaming Investment, LLC, et al
Filing
20
ORDER denying 7 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Samuel H. Mays, Jr on 09/21/2018.
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
THE PORTER CASINO RESORT,
INC.,
Plaintiff,
v.
GEORGIA GAMING INVESTMENT,
LLC, and TENNESSEE HOLDING
INVESTMENTS, LLC,
Defendants.
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No. 18-cv-2231-SHM-dkv
ORDER
Before the Court is Defendants Georgia Gaming Investment,
LLC and Tennessee Holding Investments, LLC’s Motion to Dismiss,
or in the Alternative, Transfer Venue to the Northern District
of Georgia (the “Motion to Dismiss”), filed on April 13, 2018.
(ECF No. 7.)
Plaintiff The Porter Casino Resort, Inc.
responded on May 20, 2018.
(ECF No. 9.)
For the following reasons, Defendants’ Motion to Dismiss
is DENIED.
I.
Background
This action arises from an alleged breach of contract to
fund the purchase of a casino in Tunica, Mississippi.
(Compl.
ECF No. 1-1 at 9.) 1
In 2017, Plaintiff approached Defendants about an
opportunity to purchase a casino in Mississippi.
(Id. at 10.)
On August 29, 2017, Plaintiff and Defendant Georgia Gaming
Investment, LLC executed a Subscription Agreement.
(Id.)
The
same day, Plaintiff and Defendant Tennessee Holding
Investments, LLC executed an identical Subscription Agreement.
(Id.)
The Subscription Agreements (collectively, the
“Agreements”) require Defendants “to make equity investments”
prior to the purchase of the casino and to provide additional
funds for “operating capital after closing” on the purchase.
(Id. at 11.)
The Agreements contain a provision titled, “Legal
and Jurisdiction Matters.”
34.)
(Ex. A, ECF No. 1-1 at 22; id. at
That provision reads:
As part of the consideration for this Subscription
Agreement, it is expressly agreed that the proper
court for litigation of any matter arising out of
this Subscription Agreement shall be in the city of
Memphis, Tennessee, United States of America. In the
event of litigation to enforce any of the provision
[sic] of this Subscription Agreement, the prevailing
party shall be entitled to recover all reasonable
attorneys’ fees and costs.
Any party who commences
an action outside of the city of Memphis, in the
State of Tennessee, U.S.A., (except for litigation to
enforce a judgment of a court siting in Memphis, or
1
Unless otherwise noted, citations to the record refer to the
“PageID” number.
2
equitable relief awarded by such a court) waives the
right to recover any legal fees including attorney’s
fees and court costs.
All matters shall be
controlled by the laws of the state of Tennessee,
except to the extent that the Tennessee conflict of
law rule would require application of the law of a
jurisdiction other than Tennessee.
(Ex. A, ECF No. 1-1 at 22-23; id. at 34-35.)
On or about September 15, 2017, Defendants paid Plaintiff
$1.5 million.
(Compl., ECF No. 1-1 at 11.)
At some point, Defendants allegedly began to frustrate
Plaintiff’s efforts to acquire the casino so that Defendants
could obtain a refund of their $1.5 million.
(Id. at 11-12.) 2
Defendants “threatened to take action to render the [purchase]
impossible; . . . [took] such actions; and . . . threatened to
take further such actions.
(Id. at 12.)
As a result of Defendants’ attempts to thwart the purchase
of the casino, the seller demanded that Plaintiff make a
refundable cash deposit of $15 million.
(Id. at 12.)
On November 14, 2017, Defendants sent Plaintiff a letter,
demanding that Plaintiff “unilaterally delay” purchase of the
casino, “refus[ing] to consent to any transaction documents
regarding [the purchase] ‘at this time[,]’” and “demand[ing] a
return of the [$1.5 million] that they had paid in September.”
(Id. at 12-13.)
2
The complaint does not allege when Defendants began this behavior.
3
Plaintiff did not purchase the casino.
(Id. at 13.)
On February 27, 2018, Plaintiff filed a complaint against
Defendants in the Chancery Court of Tennessee for the Thirtieth
Judicial District at Memphis.
(Id. at 9.)
Plaintiff alleges
breach of contract and seeks a declaratory judgment.
(Id. at
13-14.)
On April 6, 2018, Defendants filed a Notice of Removal,
asserting that this Court has diversity jurisdiction under 28
U.S.C. § 1332.
(Notice of Removal, ECF No. 1 at 2.)
On April 13, 2018, Defendants filed the Motion to Dismiss.
(ECF No. 7.)
9.)
Plaintiff responded on May 10, 2018.
(ECF No.
Defendants have not replied, and the deadline to do so has
passed.
II.
Jurisdiction & Choice of Law
A. Jurisdiction
The Court has diversity jurisdiction under 28 U.S.C. §
1332.
A federal district court has original jurisdiction of
all civil actions between citizens of different states “where
the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs.”
28 U.S.C. § 1332(a)(1).
Plaintiff is a Tennessee corporation with its principal
place of business in Tennessee.
(Compl., ECF No. 1-1 at 9.)
4
Defendant Georgia Gaming Investments, LLC is a Georgia limited
liability company, whose two sole members reside in Georgia.
(ECF No. 19.) See V & M Star, LP v. Centimark Corp., 596 F.3d
354, 356 (6th Cir. 2010) (“[L]imited liability companies ‘have
the citizenship of each partner or member.’” (quoting Delay v.
Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir.
2009))).
Defendant Tennessee Holding Investments, LLC is a
Georgia limited liability company, whose sole member resides in
Georgia.
(ECF No. 18.)
See V & M Star, LP, 596 F.3d at 356.
There is complete diversity.
Cf. 28 U.S.C. § 1332(a)(1).
Plaintiff seeks “not less than $1,500,000, plus such
interest as allowed by law, attorneys fees and damages as
allowed by law.”
(Compl., ECF No. 1-1 at 14.)
controversy is satisfied.
The amount in
Cf. 28 U.S.C. § 1332(a)(1).
The
Court has diversity jurisdiction.
B. Choice of Law
A federal district court is required to apply the choiceof-law rules of the forum in which it sits.
Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85
L.Ed. 1477 (1941); Cole v. Mileti, 133 F.3d 433, 437 (6th Cir.
1998).
Tennessee follows the rule of lex loci contractus,
meaning that a contract is presumed to be governed by the law
of the jurisdiction in which it was executed absent a contrary
5
intent.
Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d
465, 467 (Tenn. 1973).
If the parties manifest an intent to apply the laws of
another jurisdiction, that intent will be honored provided: (1)
the choice of law provision must be executed in good faith, (2)
the “chosen jurisdiction must bear a material connection to the
transaction,” (3) the “basis for the choice of law must be
reasonable,” and (4) the choice of “another jurisdiction's law
must not be ‘contrary to a fundamental policy of a state having
a materially greater interest and whose law would otherwise
govern.’”
Messer Griesheim Indus., Inc. v. Cryotech of
Kingsport, Inc., 131 S.W.3d 457, 474–75 (Tenn. Ct. App. 2003);
Vantage Technology, LLC v. Cross, 17 S.W.3d 637, 650 (Tenn. Ct.
App. 1999).
The Agreements contain a choice-of-law provision.
ECF No. 1-1 at 22-23; id. at 34-35.)
(Ex. A,
The parties do not
dispute the enforceability of that provision.
Neither party
has objected to the application of Tennessee law.
Because the Agreements provide for Tennessee law and
because the parties have not established that the choice-of-law
provisions should not be honored, the Court will apply
Tennessee substantive law and will not conduct a choice-of-law
analysis sua sponte.
See GBJ Corp. v. E. Ohio Paving Co., 139
6
F.3d 1080, 1085 (6th Cir. 1998) (finding courts need not
analyze choice of law questions sua sponte); Bell v. Infinity
Data Corp., No. 05-2361 MA/V, 2006 WL 2323133, at *2 (W.D.
Tenn. Aug. 9, 2006) (applying GBJ Corp. where disputed contract
contained choice-of-law provision).
III. Standard of Review
A. Motion to Dismiss for Lack of Personal Jurisdiction
When considering a motion to dismiss for lack of personal
jurisdiction under Rule 12(b)(2), a federal court looks first
to the long-arm statute of the state in which it sits to
determine the appropriate limitations on personal jurisdiction.
See Aristech Chem. Int’l Ltd. v. Acrylic Fabricators, Ltd., 138
F.3d 624, 627 (6th Cir. 1998).
The court then assesses the
exercise of jurisdiction, if any, under due process
requirements.
Federal Rule of Civil Procedure 4(k)(1)(a); see
CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.
1996); Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002).
The jurisdictional limits of Tennessee law and of the
federal law of due process are identical.
Intera Corp. v.
Henderson, 428 F.3d 605, 616 (6th Cir. 2005); First Cmty. Bank,
N.A. v. First Tennessee Bank, N.A., 489 S.W.3d 369, 384 (Tenn.
2015), cert. denied sub nom. Fitch Ratings, Inc. v. First Cmty.
Bank, N.A., 136 S. Ct. 2511, 195 L. Ed. 2d 841 (2016); Tenn.
7
Code Ann. § 20-2-223(a). 3
The Court need only decide whether
exercising personal jurisdiction over Defendants is consistent
with federal due process requirements.
Bridgeport Music, Inc.
v. Still N The Water Pub., 327 F.3d 472, 477 (6th Cir. 2003).
The Due Process Clause requires that a non-resident
defendant have at least “certain minimum contacts with the
[forum state] such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial
justice.’”
Youn v. Track, Inc., 324 F.3d 409, 417 (6th Cir.
2003) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).
“There are two kinds of personal jurisdiction within the
Federal Due Process inquiry: (1) general personal jurisdiction,
where the suit does not arise from defendant’s contacts with
the forum state; and (2) specific jurisdiction, where the suit
3
Tenn. Code Ann. § 20-2-223(a) provides in pertinent part:
(a) A court may exercise personal jurisdiction over a person,
who acts directly or indirectly, as to a claim for relief
arising from the person's:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this
state;
(3) Causing tortious injury by an act or omission in this
state;
(4) Causing tortious injury in this state by an act or
omission outside this state of the person who regularly
does or solicits business, or engages in any other
persistent course of conduct, or derives substantial
revenue from goods used or consumed or services rendered,
in this state;
. . . .
Tenn. Code Ann. § 20-2-223(a).
8
does arise from the defendant’s contacts with the forum state.”
Conn v. Zakharov, 667 F.3d 705, 712–13 (6th Cir. 2012).
General jurisdiction allows a plaintiff to sue a defendant
“on any and all claims,” regardless of the connection (or lack
thereof) between the claim and the forum.
Maxitrate Tratamento
Termico E Controles v. Super Sys., Inc., 617 F. App'x 406, 408
(6th Cir. 2015), cert. denied sub nom. Maxitrate Tratamento
Termico E Controles v. Allianz Seguros S.A., 136 S. Ct. 336
(2015) (citing Daimler AG v. Bauman, 134 S. Ct. 746, 769
(2014)).
Specific jurisdiction “exposes the defendant to suit in
the forum state only on claims that arise out of or relate to a
defendant’s contacts with the forum.”
Kerry Steel, Inc. v.
Paragon Indus., Inc., 106 F.3d 147, 149 (6th Cir. 1997).
The
Sixth Circuit has established a three-part test for determining
whether there is specific jurisdiction:
First,
the
defendant
must
purposefully
avail
[himself] of the privilege of acting in the forum
state or causing a consequence in the forum state.
Second, the cause of action must arise from the
defendant’s activities there.
Finally, the acts of
the defendant or consequences caused by the defendant
must have a substantial enough connection with the
forum state to make the exercise of jurisdiction over
the defendant reasonable.
9
S. Mach. Co. v. Mohasco, 401 F.2d 374, 381 (6th Cir. 1968); 4
see also Harmer v. Colom, 650 F. App'x 267, 272 (6th Cir.
2016).
When a defendant challenges personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2), “[t]he plaintiff
bears the burden of making a prima facie showing of the court’s
personal jurisdiction over the defendant.”
F.3d at 615.
Intera Corp., 428
A plaintiff “can meet this burden by
‘establishing with reasonable particularity sufficient contacts
between [a defendant] and the forum state to support
jurisdiction.’”
Neogen Corp. v. Neo Gen Screening, Inc., 282
F.3d 883, 887 (6th Cir. 2002) (quoting Provident Nat’l Bank v.
Cal. Fed. Sav. Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987)).
When the court does not conduct an evidentiary hearing on
personal jurisdiction, it must “not consider the facts
proffered by the defendant that conflict with those offered by
the plaintiff, and will construe the facts in the light most
favorable to the nonmoving party.”
4
Id. (citation omitted).
Since the Sixth Circuit stated this test, the Tennessee Long Arm
Statute has changed “from a ‘single act’ statute [in which jurisdiction was
assumed only over causes of action arising out of the defendant's
activities in the state] to a ‘minimum contacts’ statute which expanded the
jurisdiction of Tennessee courts to the full limit allowed by due process.”
UPS v. Buck Fever Racing, Inc., No. 03A01-9609-CH-00288, 1996 WL 739296, at
*2 (Tenn. Ct. App. Dec. 24, 1996). Nevertheless, the three-part test is
“to be considered in determining whether the requisite minimum contacts
[are] present. . . .” Id.
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B. Motion to Dismiss for Improper Venue
When considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(3), the burden is on the plaintiff to
prove that venue is proper.
See 14D Charles Alan Wright, et
al., Federal Practice and Procedure, § 3826 (4th ed. 2018)
(noting “that when the defendant has made a proper objection,
the burden is on the plaintiff to establish that the chosen
district is a proper venue”); see also Gone To The Beach, LLC
v. Choicepoint Servs., Inc., 434 F.Supp.2d 534, 536–37 (W.D.
Tenn. 2006) (On a 12(b)(3) motion to dismiss, “the plaintiff
bears the burden of proving that venue is proper.”).
On a motion to dismiss for improper venue, the court may
examine facts outside the complaint but must draw all
reasonable inferences and resolve factual conflicts in favor of
the plaintiff.
Thurman v. Michael W. Boyd Law Firm, No. 12-
2709-JDT-TMP, 2013 WL 1103645, at *2 (W.D. Tenn. Mar. 15, 2013)
(quoting Receiver of the Assets of Mid–Am. Energy, Inc. v.
Coffman, 719 F.Supp.2d 884, 890 (M.D. Tenn. 2010)).
Under 28 U.S.C. § 1391, venue is proper in:
(1) A judicial district in which any defendant
resides, if all defendants are residents of the State
in which the district is located;
(2) A judicial district in which a substantial part
of the events or omissions giving rise to the claim
11
occurred, or a substantial part of property that is
the subject of the action is situated; or
(3) If there is no district in which an action may
otherwise be brought as provided in this section, any
judicial district in which any defendant is subject
to the court's personal jurisdiction with respect to
such action.
28 U.S.C. § 1391(b).
If a defendant prevails on a Rule 12(b)(3) challenge, the
court may dismiss the action or transfer it to an appropriate
court pursuant to 28 U.S.C. § 1406(a).
Van Dusen v. Barrack,
376 U.S. 612, 634 (1964) (“[Section] 1406(a) provides for
transfer from forums in which venue is wrongly or improperly
laid, whereas, in contrast, [section] 1404(a) operates on the
premises that the plaintiff has properly exercised his venue
privilege.”); cf. Flynn v. Greg Anthony Constr. Co., 95 F.
App'x 726, 738 (6th Cir. 2003) (applying § 1406 when the court
lacked personal jurisdiction over a party).
Dismissal is appropriate where there is no plausible
reason for failing to originally file in a court with proper
venue.
See Stanifer v. Brannan, 564 F.3d 455, 458 (6th Cir.
2009).
C. Motion to Transfer Venue Under § 1404
If the defendant does not dispute that venue is proper, he
may move to transfer to a better-suited venue under 28 U.S.C.
12
§ 1404.
K-Tex, LLC v. Cintas Corp., 693 F. App'x 406, 409 (6th
Cir. 2017) (“Section 1404(a) applies for cases brought in a
court where venue is proper; § 1406 for cases brought in an
improper venue.”).
Where venue is proper and there is personal
jurisdiction, § 1404(a) is the vehicle for transfer.
See
Martin v. Stokes, 623 F.2d 469, 474 (6th Cir. 1980); Blue Ash
Dev., Inc. v. Polan, 74 F.3d 1240, 1996 WL 1828, at *1 (6th
Cir. 1996) (per curiam) (unpublished table decision).
Section 1404(a) permits a district court to transfer a
case “[f]or the convenience of parties and witnesses, in the
interest of justice, . . . to any other district or division
where it might have been brought.”
IV.
28 U.S.C. § 1404(a).
Analysis
Defendants seek dismissal of Plaintiff’s complaint based
on lack of personal jurisdiction under Rule 12(b)(2) and
improper venue under Rule 12(b)(3).
(ECF Nos. 7, 7-1.)
Defendants alternatively seek to transfer venue to the United
States District Court for the Northern District of Georgia
under 28 U.S.C. § 1404.
(ECF Nos. 7, 7-1.)
A. Personal Jurisdiction
Defendants argue that the Court lacks specific and general
personal jurisdiction over them.
13
Defendants contend that
“Plaintiff has plead [sic] no facts that demonstrate that this
Court has jurisdiction over either Defendant . . . [or] that
show that either Defendant has had any contact with the forum
state of Tennessee.”
(ECF No. 7-1 at 52.)
Defendants
represent that they have not “transacted business in the State
of Tennessee, and neither Defendant has entered into a contract
for services to be rendered in the State of Tennessee.”
(Id.)
Defendants contend that, “[b]ecause the Plaintiff’s Complaint
provides no basis for this Court to assert personal
jurisdiction over either Defendant, this Court should dismiss
Plaintiff’s Complaint under Rule 12(b)(2) of the FED. R. CIV.
P. for lack of personal jurisdiction. . . .”
(Id. at 51.)
Plaintiff contends that the Court has personal
jurisdiction over Defendants because they consented to personal
jurisdiction in Tennessee by agreeing to the forum selection
clause in the Agreements.
(ECF No. 9 at 68.)
The Agreements
provide, in relevant part, that “it is expressly agreed that
the proper court for litigation of any matter arising under
this Subscription Agreement shall be in the city of Memphis in
the State of Tennessee, United States of America.”
(ECF No. 1-
1 at 24, 34-35.)
“The use of a forum selection clause is one way in which
contracting parties may agree in advance to submit to the
14
jurisdiction of a particular Court.”
Preferred Capital, Inc.
v. Associates in Urology, 453 F.3d 718, 721 (6th Cir. 2006).
The presence of a valid and enforceable forum selection clause
obviates the need to conduct a due-process and minimum-contacts
analysis because that clause acts as consent to jurisdiction in
the contracted-for forum.
Id.
When a forum selection clause is raised as the sole basis
for personal jurisdiction over a defendant, state law applies
to the interpretation of the clause.
Preferred Capital, Inc.
v. Sarasota Kennel Club, Inc., 489 F.3d 303, 306-08 (6th Cir.
2007); see also Charles Alan Wright, et al., Federal Practice
and Procedure § 3803.1 (4th ed. 2018).
Tennessee courts
applying Tennessee law have held that “[t]he issue of ‘minimum
contacts’ for long arm jurisdiction is pretermitted, because
the requirement of minimum contacts is satisfied by a valid,
enforceable forum selection agreement.”
Cummings, Inc. v. H.I.
Mayaguez, Inc., No. 92-1650-III, 1993 WL 398475, at *2 (Tenn.
Ct. App. Oct. 1, 1993); see also Wachovia Commercial Mortgage,
Inc. v. Sandhya Hotels, LLC, No. 05-2256 Ma/P, 2006 WL 1579570,
at *6 (W.D. Tenn. June 2, 2006) (court had personal
jurisdiction over the defendants pursuant to a forum selection
clause).
Under Tennessee law, “the validity or invalidity of a
forum selection clause depends upon whether it is fair and
15
reasonable in light of all the surrounding circumstances
attending its origin and application.”
Lamb v. Megaflight, 26
S.W.3d 627, 631 (Tenn. Ct. App. 2000) (citing Dyersburg Mach.
Works, Inc. v. Rentenbach Eng'g Co., 650 S.W.2d 378, 380 (Tenn.
1983)).
A forum selection clause may be unenforceable “if it
results from misrepresentation, duress, abuse of economic
power, or other unconscionable means.”
Id.
Defendants do not argue that the forum selection clause is
unfair or unreasonable, or that it results from
misrepresentation, duress, abuse of economic power, or other
unconscionable means.
unenforceable.
There is no reason to declare the clause
The Court has personal jurisdiction over
Defendants because they have given their express consent to
jurisdiction in the Agreements.
M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 11 (1972); Sec. Watch, Inc. v. Sentinel Sys.,
Inc., 176 F.3d 369, 375 (6th Cir. 1999); Dyersburg, 650 S.W.2d
at 380.
B. Venue
1. Motion to Dismiss for Improper Venue
Although Tennessee courts are bound by Tennessee law,
“federal law governs the inquiry when a federal court, sitting
in diversity, evaluates a forum selection clause [under] . . .
any federal statute.”
Wong v. PartyGaming Ltd., 589 F.3d 821,
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826 (6th Cir. 2009); see also Elite Physicians Servs., LLC v.
Citicorp Payment Servs., Inc., 1:05-cv-334, 2006 WL 752536, at
*2 (E.D. Tenn. Mar. 17, 2006) (“The Court is directed in a
diversity case removed from state court, such as this one, to
use federal law, in deciding the validity of a venue-selection
clause.”) (citing Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d
531, 538 (6th Cir. 2002)).
“As with personal jurisdiction, [a] [d]efendant may waive
objection to venue, and courts will generally enforce waivers
made by agreement.”
ViSalus, Inc. v. Smith, No. 13-10631, 2013
WL 2156031, at *8 (E.D. Mich. May 17, 2013); accord Cobble v.
20/20 Commc'ns, Inc., No. 2:17-CV-53-TAV-MCLC, 2018 WL 1026272,
at *15 (E.D. Tenn. Feb. 23, 2018).
“The principle that a
valid forum-selection clause should be given controlling weight
does not change depending on whether a plaintiff or a defendant
moves for a change of venue. . . . [T]he principle applies even
more strongly where, as here, the defendant seeks to transfer
the case out of the agreed upon forum.”
Servpro Indus., Inc.
v. JP Penn Restoration Servs., No. 3-16-0298, 2016 WL 5109947,
at *2 (M.D. Tenn. Sept. 20, 2016).
Having found the forum selection clause enforceable, the
Court finds venue in this forum is proper.
Defendants’ motion
to dismiss based on improper venue is DENIED.
17
2. Motion to Transfer Venue
Defendants alternatively ask to transfer this case to the
United States District Court for the Northern District of
Georgia under § 1404.
(ECF No. 7 at 48; ECF No. 7-1 at 53.)
Defendants do not argue that the Northern District of Georgia
is more convenient for parties or witnesses, or that transfer
is in the interest of justice.
residents of Georgia.
They contend only that they are
(ECF No. 7-1 at 53.)
Plaintiff contends that “Western District of Tennessee has
a substantial connection to [its] claim.”
(ECF No. 9 at 73.)
Plaintiff also argues that venue is proper “by virtue of the
parties’ forum selection clause.”
(Id. at 74 n.19 (citations
omitted).)
“When parties agree to a forum-selection clause, they
waive the right to challenge the preselected forum as
inconvenient or less convenient for themselves or their
witnesses, or for their pursuit of the litigation.”
Atl.
Marine Constr. Co. v. United States Dist. Court, 571 U.S. 49,
52 (2013).
Transfer in the face of a forum selection clause is
proper only in “exceptional cases” where the public interest
factors favor litigating in the proposed alternative venue.
Id. at 579.
18
Defendants make no argument for transferring venue under
§ 1404.
No public interest factors favor transfer to the
Northern District of Georgia in the face of the forum selection
clause.
Defendants’ motion to transfer venue to the Northern
District of Georgia under § 1404 is DENIED.
V.
Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss
is DENIED.
So ordered this 21st day of September, 2018.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
19
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