Excel Marketing Solutions, Inc. v. Direct Financial Solutions, LLC et al
Filing
20
MEMORANDUM OPINION AND ORDER denying 12 Motion to Remand filed by Excel Marketing Solutions Inc, and granting 4 Motion to Dismiss filed by OIX2 Inc, Direct Financial Solutions, LLC. The court denies Excel's February 17, 2011 motion to reman d and grants OIX2's January 25, 2011 motion to dismiss for failure to state a claim on which relief can be granted. The action against OIX2 is dismissed with prejudice. The court grants DFS's January 25, 2011 motion to dismiss and dismiss es this action without prejudice to Excel's refiling suit against DFS in accordance with the forum selection clause, i.e., in the state and federal courts located within the County of New Castle, Delaware. This case is dismissed by judgment filed today. (Ordered by Chief Judge Sidney A Fitzwater on 5/13/2011) (Chief Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
EXCEL MARKETING SOLUTIONS,
INC.,
§
§
§
Plaintiff, §
§ Civil Action No. 3:11-CV-0109-D
VS.
§
§
DIRECT FINANCIAL SOLUTIONS,
§
LLC, et al.,
§
§
Defendants. §
MEMORANDUM OPINION
AND ORDER
In this removed action, the court must decide whether a Texas
citizen defendant has been improperly joined and whether the action
against the other defendant must be litigated in Delaware under the
terms of a contractual forum selection clause.
For the reasons
that follow, the court holds that the Texas citizen defendant has
been improperly joined, that plaintiff’s motion to remand must be
denied, and that plaintiff’s action against that defendant must be
dismissed with prejudice.
The court concludes that plaintiff must
sue the other defendant in Delaware, and it therefore dismisses the
action against that defendant without prejudice to plaintiff’s
refiling suit there.
I
Plaintiff Excel Marketing Solutions, Inc. (“Excel”) sued
defendants Direct Financial Solutions, LLC (“DFS”) and OIX, Inc.
(“OIX”) in Texas state court alleging claims for breach of contract
and
negligent
misrepresentation,
and
seeking,
inter
alia,
a
temporary restraining order (“TRO”). Excel is a Nevada corporation
with its principal place of business in Texas.
DFS is a Delaware
limited liability company with its principal place of business in
Utah, and OIX is a Delaware corporation with its principal place of
business in Texas. Defendants removed the case to this court based
on
diversity
of
citizenship,
contending
that
OIX’s
Texas
citizenship should be disregarded because it has been improperly
joined.
Excel moves to remand, contending that OIX is properly joined
and that the parties are not completely diverse.
OIX moves to
dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim
on which relief can be granted.
DFS moves to dismiss under 28
U.S.C. § 1406(a) and Rule 12(b)(2) and (b)(3) for lack of personal
jurisdiction or improper venue.
Alternatively, it moves under 28
U.S.C. § 1406(a) to transfer the case to the District of Delaware.
II
The court first addresses Excel’s motion to remand and OIX’s
related motion to dismiss under Rule 12(b)(6).
A
For a case to be removed based on diversity jurisdiction,
“‘all persons on one side of the controversy [must] be citizens of
different states than all persons on the other side.’”
Harvey v.
Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008)
(quoting McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir.
- 2 -
2004) (per curiam)). This means that no plaintiff can be a citizen
of the same state as even one defendant. Moreover, under 28 U.S.C.
§ 1441(b), a case cannot be removed based on diversity jurisdiction
if any properly-joined defendant is a citizen of the state in which
the action is brought (here, Texas).
“The doctrine of improper joinder . . . entitle[s] a defendant
to remove to a federal forum unless an in-state defendant has been
‘properly joined.’”
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d
568, 573 (5th Cir. 2004) (en banc).
“When a defendant removes a
case to federal court on a claim of improper joinder [of an
in-state defendant], the district court’s first inquiry is whether
the removing party has carried its heavy burden of proving that the
joinder was improper.”
Id. at 576.
The defendant can establish
improper joinder by showing that there was actual fraud in the
pleading of jurisdictional facts or that the plaintiff is unable to
establish a cause of action against the non-diverse defendant in
state court.
Id. at 573 (citing Travis v. Irby, 326 F.3d 644,
646-47 (5th Cir. 2003)).
In this case, defendants argue that Excel is unable to
establish a cause of action against OIX.
To meet their heavy
burden of proving improper joinder, defendants must demonstrate
“that there is no possibility of recovery by the plaintiff against
[OIX], which stated differently means that there is no reasonable
basis for the district court to predict that the plaintiff might be
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able to recover against [OIX].”
Id.
The court must “evaluate all
of the factual allegations in the light most favorable to the
plaintiff, resolving all contested issues of substantive fact in
favor of the plaintiff.”
Guillory v. PPG Indus., Inc., 434 F.3d
303, 308 (5th Cir. 2005) (internal quotation marks and citation
omitted).
Thus “[t]he party seeking removal bears a heavy burden
of proving that the joinder of the in-state party was improper.”
Smallwood, 385 F.3d at 574.
To predict whether plaintiffs have a reasonable basis of
recovery
under
state
law,
“[t]he
court
may
conduct
a
Rule
12(b)(6)-type analysis, looking initially at the allegations of the
complaint to determine whether the complaint states a claim under
state
law
against
the
in-state
defendant.”
Id.
at
573.
“Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge,
there is no improper joinder.” Id. In considering the allegations
against in-state defendants, the court must look to the live
pleadings at the time of removal.
Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (“To determine
whether jurisdiction is present for removal, we consider the claims
in the state court petition as they existed at the time of
removal.”).
The court is not permitted to “mov[e] . . . beyond
jurisdiction and into a resolution of the merits[.]”
385 F.3d at 574.
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Smallwood,
B
Excel
maintains
that
OIX,
a
Delaware
corporation
whose
principal place of business is in Texas, is properly joined as a
defendant and that the court lacks subject matter jurisdiction
because the parties are not completely diverse.
defendants
have
failed
to
show
that
there
It argues that
is
no
reasonable
probability that Excel can establish a cause of action against OIX.
In its state-court petition (“petition”), Excel asserts two claims:
breach of contract and negligent misrepresentation.
Excel seeks a
TRO and a temporary injunction against DFS and OIX, actual damages,
and attorney’s fees.
Excel provides operational, sales, and marketing consulting
services, including the use of social media platforms to service
other companies’ customers.
Excel and DFS entered into a mutual
non-disclosure agreement (“First NDA”) on February 5, 2010 to
facilitate discussions regarding a prospective transaction between
Excel and DFS. The parties entered into the First NDA anticipating
that,
during
the
business
venture,
one
party
might
disclose
confidential and proprietary information to the other. OIX was not
a party to the First NDA.
that
confidential
In the First NDA, the parties agreed
information
might
be
exchanged
between
the
parties, that such information would not be disclosed to third
parties, and that such information would be returned to the
disclosing party.
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Excel subsequently provided confidential information to DFS in
the
form
of
potential
customers
and
contact
information,
operational integration information, and marketing information.
Excel alleges that DFS disclosed this information to OIX, but OIX
was not a party to, and had not agreed to be bound by, the First
NDA.
The parties disagree about (1) what information should be
returned to Excel; (2) whether such information should be in OIX’s
possession; and (3) what confidential information is not to be used
by defendants.
Excel also alleges that DFS stated to EMS that it
intends to use the information for its business operations and
sales and marketing efforts.
In its petition, Excel alleges that “Defendant DFS’s actions
constitute a breach of the [First NDA],” and that “Defendant DFS’s
actions constitute a negligent misrepresentation[.]” Pet. 6. Excel
does not mention OIX in either of these claims and does not
otherwise assert that OIX violated Texas law.
Excel urges,
however, that OIX is properly joined because Excel seeks injunctive
relief against OIX.
Defendants argue that because Excel does not
assert that OIX was a party to the First NDA or that OIX made any
misrepresentations to Excel, Excel cannot prevail under Texas law
on its claims, if any, against OIX.
Defendants also maintain that
Excel’s request for injunctive relief against OIX is not a cause of
action
and
cannot
serve
as
a
jurisdiction.
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basis
to
defeat
diversity
C
“In considering the allegations against in-state defendants,
the court must look to the live pleadings at the time of removal.”
Moore v. Travelers Indem. Co., 2010 WL 5071036, at *4 (N.D. Tex.
Dec. 7, 2010) (Fitzwater, C.J.) (internal quotation marks and
citation omitted). As to OIX, Excel only alleges that OIX received
confidential
information
and
that
information to return to Excel.
OIX
could
not
agree
what
Excel does not explicitly mention
OIX in either of its claims.
Under Texas law, Excel’s breach of contract claim requires
that it prove four elements: (1) the existence of a valid contract,
(2) that Excel performed its duties under the contract, (3) that
OIX breached the contract, and (4) that Excel suffered damages as
a result of the breach.
E.g., Lewis v. Bank of Am. NA, 343 F.3d
540, 544-45 (5th Cir. 2003) (Texas law) (citation omitted).
To prevail on a negligent misrepresentation
claim,
[Excel]
must
show
(1)
the
representation in question was made by [OIX]
in the course of [its] business or in a
transaction in which [it] had a pecuniary
interest, (2) [OIX] supplied false information
for the guidance of [Excel in its] business,
(3) [OIX] did not exercise reasonable care or
competence in obtaining or communicating the
information,
and
(4)
[Excel]
suffered
pecuniary loss by justifiably relying on the
representation.
Hunter v. PriceKubecka, PLLC, ___ S.W.3d___, 2011 WL 1522410, at *7
(Tex. App. Apr. 22, 2011, no pet. h.) (citation omitted); see also
Erdman Co. v. USMD of Arlington GP, LLC, 2011 WL 1356920, at *19
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(N.D. Tex. Apr. 11, 2011) (Fitzwater, C.J.).
Excel has not stated
a breach of contract, negligent misrepresentation, or other claim
under Texas law against OIX.
Defendants have demonstrated that
there is no possibility of recovery by Excel against OIX under the
claims asserted in the petition.
D
Excel alternatively maintains that its joinder of OIX is
proper
because
Excel
seeks
injunctive
relief
against
OIX.
Injunctive relief is an equitable remedy, not an independent cause
of action.
See Cook v. Wells Fargo Bank, N.A., 2010 WL 2772445, at
*4 (N.D. Tex. July 12, 2010) (Fitzwater, C.J.) (“Under Texas law,
a request for injunctive relief is not itself a cause of action but
depends on an underlying cause of action.” (citation omitted)). And
“the fact that the [plaintiff] seek[s] injunctive relief against
all defendants . . . does not preclude a finding of improper
joinder.”
Id.
The fact that injunctive relief may be granted
against the improperly joined defendant “is not relevant for
diversity jurisdiction purposes.”
Id.
E
The court therefore holds that OIX is improperly joined and
that its Texas citizenship can be disregarded when determining
whether there is complete diversity and whether the case has been
removed with an in-state defendant.
Moreover, that injunctive
relief may potentially be available against OIX does not create a
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claim against OIX or preclude removal.
Accordingly, the court
denies Excel’s motion to remand.
F
Because the court holds, under a Rule 12(b)(6)-type analysis,
that OIX has been improperly joined, it follows that OIX is
entitled to dismissal of the claims against it.
See Berry v.
Hardwick, 152 Fed. Appx. 371, 373-75 (5th Cir. 2005) (per curiam)
(holding that district court properly granted defendants’ motion to
dismiss when it determined that they had been improperly joined).
Excel asks that, in the event that the court denies its motion
to remand, the court permit Excel to amend its petition to assert
a claim on which relief can be granted against OIX and thus defeat
removal.
But the court should not evaluate the propriety of
removal based on an amended complaint. See Cavallini v. State Farm
Mut. Auto. Ins. Co., 44 F.3d 256, 259-60 n.8 (5th Cir. 1995) (“Even
if Plaintiffs’ amended petition, for which the Court has not yet
granted leave to file, does state a cause of action against
[defendant], it is well established that an amended petition cannot
operate
to
removed.”).
defeat
jurisdiction
of
a
case
that
was
properly
The court therefore denies Excel’s request to replead
a claim against OIX.
Excel’s action against OIX is dismissed with
prejudice.
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III
The court now turns to DFS’s motion to dismiss.
For reasons
the court will explain, it concludes that it need only address
whether the action against DFS should be dismissed based on a forum
selection clause contained in the second nondisclosure agreement
(“Second NDA”).
See CK DFW Partners Ltd. v. City Kitchens, Inc.,
2007 WL 2381259, at *2 (N.D. Tex. Aug. 17, 2007) (Fitzwater, J.)
(dismissing case pursuant to forum selection clause and declining
to address defendants’ motion to dismiss for lack of personal
jurisdiction).
A
In
this
circuit,
a
motion
to
dismiss
based
on
a
forum
selection clause is properly brought under Rule 12(b)(3) (improper
venue).
See Lim v. Offshore Specialty Fabricators, Inc., 404 F.3d
898, 901-02 (5th Cir. 2005) (“Because our court has accepted Rule
12(b)(3) as a proper method for seeking dismissal based on a forum
selection clause, we need not decide whether a Rule 12(b)(1) motion
would be appropriate.” (citations omitted)).
When the court
considers a motion to dismiss based on a forum selection clause, it
applies the standard set out in M/S Bremen and Unterweser Reederei,
GmBH v. Zapata Off-Shore Co., 407 U.S. 1 (1972).
See, e.g., Bonded
Inspections, Inc. v. Northrup Grumman Corp., 1998 WL 185518, at *2
(N.D. Tex. Apr. 10, 1998) (Fitzwater, J.) (addressing dismissal or
transfer under 28 U.S.C. § 1406(a)).
- 10 -
Forum selection clauses “are
prima facie valid and should be enforced unless enforcement is
shown
by
the
resisting
party
to
be
unreasonable
under
the
circumstances.”
Launey v. Carnival Corp., 1997 WL 426095, at *1
(E.D.
25,
La.
July
1997)
(internal
quotation
marks
omitted)
(quoting M/S Bremen, 407 U.S. at 10).
Unreasonableness potentially exists where (1)
the incorporation of the forum selection
clause into the agreement was the product of
fraud or overreaching; (2) the party seeking
to escape enforcement “will for all practical
purposes be deprived of his day in court”
because
of
the
grave
inconvenience
or
unfairness of the selected forum; (3) the
fundamental unfairness of the chosen law will
deprive the plaintiff of a remedy; or (4)
enforcement of the forum selection clause
would contravene a strong public policy of the
forum state.
Haynsworth v. The Corporation, 121 F.3d 956, 963 (5th Cir. 1997)
(citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595
(1991); M/S Bremen, 407 U.S. at 12-13, 15, 18).
The party who
seeks to avoid application of a forum selection clause “bears a
heavy burden of proof justifying its avoidance.”
Launey, 1997 WL
426095, at *2.
B
The court must first determine whether Excel is bound by the
forum selection clause of the Second NDA.
“Because the forum
selection clause is part of a contract, principles of contract
interpretation apply.”
IMCO Recycling, Inc. v. Warshauer, 2001 WL
1041799, at *3 (N.D. Tex. Aug. 31, 2001) (Fitzwater, J.) (citing
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McDermott Int’l, Inc. v. Lloyds Underwriters of London, 944 F.2d
1199, 1205 (5th Cir. 1991)).
“In determining whether the forum
selection clause applies, the court will assume not only that
federal law governs the determination of whether an enforceable
forum selection clause exists, but also that federal law controls
whether plaintiff’s lawsuit falls within the scope of the forum
selection clause.”
Your Town Yellow Pages, L.L.C. v. Liberty
Press, L.L.C., 2009 WL 3645094, at *3 (N.D. Tex. Nov. 2, 2009)
(Fitzwater, C.J.) (internal quotation marks and citation omitted).
Defendants maintain that the First NDA was superseded by the
Second NDA, and that the forum selection clause of the Second NDA
is mandatory and enforceable against Excel.
Excel responds that,
because Excel is not explicitly mentioned in or named as a party to
the Second NDA, but is expressly named as a party to the First NDA,
it is not bound by the Second NDA and its forum selection clause.
Defendants reply that Excel is an affiliate and business of Lee
Gills (“Gills”), who is a party to the Second NDA, and Excel is
therefore bound by the Second NDA’s forum selection clause.
The First NDA was executed on February 5, 2010 by and between
Excel and DFS “to protect and safeguard the confidential and
proprietary information of the parties and to safeguard and not
disturb the continuing operations of the parties.”
App. 4.
Ds. Mot. Dis.
The First NDA is to be construed in accordance with Texas
law without regard to conflicts or choice of law.
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Both parties
agree that any disputes under the First NDA shall be adjudicated in
immediate arbitration in Dallas, Texas, or in any court of the
disclosing party’s choosing in the United States.
was
signed
by
Gills,
as
duly
authorized
The agreement
representative
and
Executive Vice President of Excel, and S. Todd Jensen, as duly
authorized representative and CEO of DFS.
The Second NDA was executed on May 27, 2010 between Gills and
DFS.
It provides that “each party may receive Confidential
Information (as defined below) of the other party, and the parties
desire to set forth certain agreements in connection therewith.”
Ds. Mot. Dis. App. 8.
By its terms, the Second NDA “constitutes
the entire agreement between the parties with respect to the
subject matter hereof and supersedes any previous arrangements
relating thereto” and is governed by Delaware law.
Id. at 10.
The
parties agreed to submit to the personal and exclusive jurisdiction
of state and federal courts in the county of New Castle, Delaware.
See id.
Defendants maintain that Excel is bound by the forum selection
clause of the Second NDA because the First NDA was superseded by
the Second NDA.
Excel responds that the Second NDA does not
supersede the First NDA as to Excel because Excel is not a party to
the Second NDA.
Excel therefore posits that it is not bound by the
forum selection clause of the Second NDA, and, as the disclosing
party,
it
may
choose
the
forum
- 13 -
pursuant
to
the
First
NDA.
Defendants reply that Excel is bound by the Second NDA because (1)
the
Second
NDA
unambiguously
binds
Gills’s
affiliates
and
businesses, which includes Excel; (2) an interpretation of the
Second NDA that renders it inapplicable to Excel renders it
illusory or meaningless; and (3) the parties’ history and course of
dealing indicate that the parties intended the Second NDA to bind
Excel.
Defendants posit that the Second NDA expressly binds Gills’s
affiliates and businesses, including Excel. The Second NDA defines
Confidential
Information
as
information
of
or
concerning
the
disclosing party’s (here, Gills’s) affiliates (here, Excel).
The
agreement also requires that a party who receives Confidential
Information shall return it to the disclosing party or to the
disclosing party’s affiliates (here, Excel).
Excel does not argue
that it is not an affiliate of Gills, and it does not contest that
Gills owns, operates, and controls Excel.
Defendants also maintain that interpreting the Second NDA not
to apply to Excel renders the language referring to Gills’s
affiliates
meaningless,
which
is
contrary
to
law.
Finally,
defendants argue that the course of dealing and history between
Excel and DFS indicate that the parties intended to bind Excel to
the Second NDA.
The First NDA and the Second NDA apply to the same
set of information, Gills signed the First NDA on behalf of Excel,
the Second NDA was intended to supersede the First NDA (to which
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Excel was a named party), and Excel eventually became a member of
the company that was the purpose of the venture contemplated by
both NDAs.
C
The court agrees with defendants.
A nonparty can be bound to
a forum selection clause if the nonparty is “‘closely related’ to
the dispute such that it becomes ‘foreseeable’ that it will be
bound.”
Harrison v. Procter & Gamble Co., 2007 WL 431085, at *2
(N.D. Tex. Feb. 8, 2007) (Buchmeyer, J.) (quoting Hugel v. Corp. of
Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993)); see also D.B. Inc. v.
Nat’l Admin. Solutions Corp., 2004 WL 865842, at *3 (N.D. Tex. Apr.
21,
2004)
(Buchmeyer,
J.)
(“To
bind
a
non-party
to
a
forum
selection clause, the party must be closely related to the dispute
such that it becomes foreseeable that it will be bound.”).
In
Hugel the court held that a forum selection clause agreed to by two
companies applied also to the president and chairman of the board
of those companies.
Hugel, 999 F.2d 209-10.
The district court
found that the corporations owned and controlled by the nonsignatory were equally bound by the forum selection clause, and the
appellate court upheld this finding as not clearly erroneous.
at 210.
Id.
In Babin Marine, L.L.C. v. Argo Inc., 2000 WL 1372992
(E.D. La. Sept. 21, 2000), the court concluded that a forum
selection clause agreed to by a company’s authorized agent and
broker applied to the company because it was closely related to the
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contractual relationship such that it was foreseeable that the
forum selection clause would apply to suits involving the company.
See id. at *3; see also Salad Bowl Franchise Corp. v. Crane, 2011
WL 942239, at *4 (N.D. Tex. Mar. 17, 2011) (Fitzwater, C.J.)
(concluding that signatory to arbitration agreement can compel
another signatory to that agreement to submit to arbitration
against non-signatory, so long as it is on the subject matter
covered by the agreement and the non-signatory is being sued for
actions as agent for the signatory).
The court holds that, even if Excel is not a named party to
the Second NDA, Excel is closely related to the dispute between
Gills and DFS under the Second NDA such that it was foreseeable
that Excel would be bound by the Second NDA and the forum selection
clause.
The same confidential information is protected by both
NDAs; Gills signed the First NDA as Excel’s duly authorized
representative; and the parties clearly contemplated that the
Second NDA would protect information disclosed by and received by
Gills’s affiliates, which includes Excel.
The court therefore
holds that Excel is bound by the forum selection clause in the
Second NDA.
D
The court must next decide if the substance of Excel’s claims
falls within the scope of the forum selection clause of the Second
NDA.
The clause states: “[i]n the event of any claim or action
- 16 -
arising
under
irrevocably
or
agree
relating
to
to
submit
[the
to
Second
the
NDA],
personal
the
and
parties
exclusive
jurisdiction of the state and federal courts located within the
County of New Castle, Delaware, United States.” Ds. Mot. Dis. App.
10.
Excel alleges in its petition that it provided confidential
information to DFS that includes, but is not limited to, potential
customers and their contact information, operational integration
information, and marketing information.
Excel asserts that DFS
forwarded confidential information to OIX in violation of the First
NDA.
Excel also avers that DFS represented that it would maintain
the confidential nature of the information provided to it by Excel,
that Excel relied on this representation, that the representation
was false, and that Excel was injured as a result.
The
First
NDA
required
that
the
party
who
received
confidential information “shall limit access [to that information]
to its authorized employees, representatives and agents who have a
substantial need to know . . . and have agreed to be bound by this
Agreement.”
Ds. Mot. Dis. App. 4.
Likewise, the Second NDA
required that the party who received confidential information keep
that information confidential and not use it for any purpose other
than the evaluation of the proposed business relationship and
transaction between Gills and DFS.
See id. at 9. Essentially, the
facts that Excel alleges may give rise to a cause of action under
- 17 -
the Second NDA, to which DFS is a party.
The court therefore holds that Excel’s substantive claims are
within the scope of the forum selection clause of the Second NDA
because Excel’s claims arise under or are related to the Second
NDA, since it was superseded by the First NDA. The court dismisses
Excel’s action against DFS without prejudice to Excel’s refiling
the lawsuit in Delaware.
*
*
*
The court denies Excel’s February 17, 2011 motion to remand
and grants OIX’s January 25, 2011 motion to dismiss for failure to
state a claim on which relief can be granted.
The court concludes
that the forum selection clause of the Second NDA governs Excel’s
lawsuit against DFS.
It therefore grants DFS’s January 25, 2011
motion to dismiss and dismisses this action without prejudice to
Excel’s refiling suit against DFS in accordance with the forum
selection clause, i.e., in the state and federal courts located
within the County of New Castle, Delaware. In view of this ruling,
the court need not decide DFS’s motion to dismiss pursuant to Rule
12(b)(2).
This case is dismissed by judgment filed today.
SO ORDERED.
May 13, 2011.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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