E & I Holdings, LLC v. Bellmari Trading USA, Inc. et al
Filing
33
MEMORANDUM OPINION AND ORDER granting 12 MOTION by Bellmari Trading USA, Inc., Pectrolum, Inc. to Dismiss; the plaintiff's complaint is dismissed without prejudice to refiling in the courts of Orange County, Florida. Signed by Judge John T. Copenhaver, Jr. on 11/26/2018. (cc: counsel of record) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
E & I HOLDINGS, LLC,
Plaintiff,
v.
Civil Action no. 2:18-cv-00484
BELLMARI TRADING USA, INC.,
a Delaware Corporation, and
PECTROLUM, INC., a New York
Corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is a motion to dismiss filed by defendants
Bellmari Trading USA Inc. and Pectrolum, Inc. (collectively,
“Bellmari”) on May 18, 2018.
The plaintiff, E&I Holdings, LLC
(“E&I”), responded in opposition on June 1, 2018, to which the
defendants replied on June 8, 2018.
The defendants seek
dismissal pursuant to the doctrine of forum non conveniens.
On March 25, 2017, Bellmari and E&I entered into a
term sheet agreement, wherein E&I agreed to obtain coal meeting
certain specifications for purchase by Bellmari.
Pertinently,
that agreement contained a clause stating: “Should this
Agreement be breached in any manner, either directly or
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indirectly by any party, the parties agree this contract should
be interpreted under the laws of the State of Florida, and shall
be litigated in Orange County, Florida.”
A.
Compl., ECF # 1, Ex.
Nevertheless, when the agreement fell into disarray, E&I
filed a complaint in this court on March 26, 2018.
E&I brings
four counts against Bellmari: fraud, breach of contract,
interference with business relationships, and slander and
defamation.
The defendants now seek dismissal of the complaint
pursuant to the doctrine of forum non conveniens and the forumselection clause.
This is the proper means of enforcing a
forum-selection clause pointing to a state forum.
Atl. Marine
Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S.
49, 60 (2013) (“the appropriate way to enforce a forum-selection
clause pointing to a state or foreign forum is through the
doctrine of forum non conveniens.”).
In the context of a
mandatory forum-selection clause, the traditional forum non
conveniens analysis providing great deference to the plaintiff’s
chosen forum is reversed, such that “the forum selection clause
is ‘given controlling weight in all but the most exceptional
cases,’ and the plaintiff bears the burden of proving why it
should not be enforced.”
BAE Sys. Tech. Sol. & Servs., Inc. v.
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Republic of Korea's Def. Acquisition Program Admin., 884 F.3d
463, 471 (4th Cir. 2018) (“BAE”), cert. denied sub nom. Republic
of Korea's Def. Acquisition Program Admin. v. BAE Sys. Sol. &
Servs., Inc., No. 18-19, 2018 WL 3241795 (U.S. Oct. 1, 2018)
(quoting Atl. Marine Const. Co., 571 U.S. at 66 n.8).
This
presumption applies only to mandatory forum-selection clauses
that “require[] litigation to occur in a specified forum[,]”
rather than permissive forum selection clauses that “permit[]
litigation to occur in a specified forum but do[] not bar
litigation elsewhere.”
Id. at 470 (citing Albemarle Corp. v.
AstraZeneca UK Ltd., 628 F.3d 643, 650–51 (4th Cir. 2010)).
The forum-selection clause here is mandatory because
it requires litigation to occur in Orange County, Florida.
The
plaintiff attempts to compare this forum-selection clause to the
permissive one in BAE, which stated that any dispute “shall be
resolved through litigation and the Seoul Central Court shall
hold jurisdiction.”
Id.
However, the difference in the clauses
is clear: whereas the forum-selection clause in BAE merely
conferred jurisdiction upon the Seoul Central Court but did not
explicitly require litigation to occur there or otherwise limit
the jurisdiction of other courts, here, the forum-selection
clause explicitly states that the dispute “shall be litigated in
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Orange County, Florida” (emphasis added), leaving no room for
another forum to hear the case.
Accordingly, the court has no
difficulty finding the forum-selection clause to be mandatory.
The plaintiff therefore has the burden of proving why
the forum-selection clause should not be enforced.
E&I does not
claim that the forum-selection clause is invalid or
unreasonable, but merely argues that because only one of its
four counts is a breach-of-contract claim, the forum selection
clause does not apply.
The court sees no reason why the forum-
selection clause should be limited solely to breach-of-contract
claims.
See Lambert v. Kysar, 983 F.2d 1110, 1121–22 (1st
Cir.1993) (“contract-related tort claims involving the same
operative facts as a parallel claim for breach of contract
should be heard in the forum selected by the contracting
parties.”); Manetti–Farrow, Inc. v. Gucci America, Inc., 858
F.2d 509, 514 (9th Cir.1988) (holding that a forum selection
clause applies to tort claims when resolution of those
claims
relates to interpretation of the contract); Coastal Steel Corp.
v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 203 (3d Cir. 1983),
overruled on other grounds by Lauro Lines s.r.l. v. Chasser, 490
U.S. 495 (1989) (holding that “where the relationship between
the parties is contractual, the pleading of alternative non-
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contractual theories of liability should not prevent enforcement
of [a forum-selection clause.]”); and Am. Patriot Ins. Agency,
Inc. v. Mut. Risk Mgmt., Ltd., 364 F.3d 884, 889 (7th Cir. 2004)
(finding that claims for fraud were covered by a contractual
forum selection clause because “the existence of multiple
remedies for wrongs arising out of a contractual relationship
does not obliterate the contractual setting, does not make the
dispute any less one arising under or out of or concerning the
contract, and does not point to a better forum for adjudicating
the parties' dispute than the one they had selected to resolve
their contractual disputes.”).
As earlier noted, the forum-selection clause states:
“Should this Agreement be breached in any manner, either
directly or indirectly by any party, the parties agree this
contract should be interpreted under the laws of the State of
Florida, and shall be litigated in Orange County, Florida.”
It
does not limit itself to breach-of-contract claims; rather, it
uses language – “breached in any manner” – that is sufficient to
indicate that in the event the contract is breached, which for
purposes of their motion the defendants assume it was, any
litigation resulting therefrom shall occur in Orange County,
Florida.
Furthermore, each of E&I’s claims relate to conduct
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occurring under the purview of the parties’ contractual
relationship and should be brought in the same forum as the
underlying claim for breach of contract.
When the parties entered into their term sheet
agreement, they agreed that if it were breached, resulting
litigation would occur in Orange County, Florida.
The plaintiff
has not provided a convincing reason, and the court sees none,
as to why that agreement should not be enforced.
Accordingly,
the defendants’ motion to dismiss for forum non conveniens is
granted.
It is thus ORDERED that the plaintiff’s complaint be,
and it hereby is, dismissed without prejudice to refiling in the
courts of Orange County, Florida.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record.
DATED: November 26, 2018
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