ORDER

JANE MAGNUS-STINSON, District Judge.

Presently pending before the Court is Defendant David Pack's Motion to Dismiss, in which he alleges that this Court lacks in personam jurisdiction over him. [Filing No. 9.] Mr. Pack seeks to dismiss Plaintiff Small Business Lending, LLC's ("SBL") Complaint for injunctive relief and damages related to a written agreement between SBL and Mr. Pack. [Filing No. 1-1 at 7-17.] Mr. Pack's Motion is fully briefed and is now ripe for the Court's review. For the reasons stated herein, the Court DENIES Mr. Pack's Motion.

I.

LEGAL STANDARD

When a defendant moves to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(2), "[t]he plaintiff bears the burden of showing that personal jurisdiction over the defendant exists." Claus v. Mize, 317 F.3d 725, 727 (7th Cir. 2003). When, as here, the Court "rules on a defendant's motion to dismiss based on the submission of written materials, without the benefit of an evidentiary hearing . . . the plaintiff `need only make out a prima facie case of personal jurisdiction.'" Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003) (quoting Hyatt Int'l. Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002)). Accordingly, "[o]nce the defendant has submitted affidavits or other evidence in opposition to the exercise of jurisdiction, the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction." Id. at 782-83. Factual disputes, however, are resolved in the plaintiff's favor. Id.

"A federal district court's personal jurisdiction over a defendant is established in a diversity-jurisdiction case . . . only so long as the defendant is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located." Northern Grain Mktg., LLC v. Greving, 743 F.3d 487, 491 (7th Cir. 2014). Indiana Trial Rule 4.4(A) serves as Indiana's longarm provision and expands personal jurisdiction to the full extent permitted by the Due Process Clause. See LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 965-66 (Ind. 2006). "Thus, the statutory question merges with the constitutional one—if [Indiana] constitutionally may exercise personal jurisdiction over a defendant, its long-arm statute will enable it to do so." Northern Grain, 743 F.3d at 492.

"The federal constitutional limits of a court's personal jurisdiction in a diversity case are found in the Fourteenth Amendment's due-process clause." Id. "[F]ederal constitutional law draws a sharp and vital distinction between two types of personal jurisdiction: specific or case-linked jurisdiction, and general or all-purpose jurisdiction." Abelesz v. OTP Bank, 692 F.3d 638, 654 (7th Cir. 2012). "If the defendant's contacts are so extensive that it is subject to general personal jurisdiction, then it can be sued in the forum state for any cause of action arising in any place. More limited contacts may subject the defendant only to specific personal jurisdiction, in which case the plaintiff must show that its claims against the defendant arise out of the defendant's constitutionally sufficient contacts with the state." uBID, Inc. v. GoDaddy Group, Inc., 623 F.3d 421, 425 (7th Cir. 2010). Specific personal jurisdiction is at issue in this case.

II.

BACKGROUND

A. The Agreement

On or about April 4, 2018, Mr. Pack and SBL entered into an independent contractor agreement (the "Agreement"). [Filing No. 1-1 at 32 (containing the parties' signatures, dated April 3 and April 4, 2018).] The Agreement provides, in relevant part, as follows:

[Filing No. 1-1 at 19.] Thereafter, the Agreement states that "[t]he Independent Contractor is secured to provide the services described below at the Company's principal place of business as aforementioned, or from the Contractor's principal place of business, if applicable, as aforementioned." [Filing No. 1-1 at 19.]

The Agreement provides that the "Independent Contractor is or shall remain open to conducting similar tasks or services for the Company, which may not be listed or described below, or for entities other than the Company and thus holds himself or herself out to the public to be a separate business entity." [Filing No. 1-1 at 19.] Subsequently, regarding the scope of work, the Agreement provides that:

[Filing No. 1-1 at 20.]

The Agreement contains the following provisions discussing compensation:

[Filing No. 1-1 at 21.]

The Agreement contains a non-solicitation clause which provides that the independent contractor shall not solicit or attempt to solicit customers or clients of the company "throughout the duration of this Agreement and for a period of (sic) immediately following the termination of this Agreement." [Filing No. 1-1 at 23.]

The Agreement contains a non-compete clause which provides as follows:

[Filing No. 1-1 at 23-24.]

The Agreement also contains a two paragraph non-recruit clause. The first paragraph provides that the independent contractor "shall not throughout the duration of this Agreement and for a period of 2 year (sic) immediately following the termination of this Agreement, either directly or indirectly, recruit any of the Company's employees, customers, clients or management for the purpose of any outside business." [Filing No. 1-1 at 24.] The second paragraph of the non-recruit clause mirrors verbatim the second paragraph of the non-compete clause. [Filing No. 1-1 at 24.]

The Agreement contains two severability clauses on the same page, one of which states that if any "term, condition, or provision" of the Agreement is "held to be invalid or unenforceable for any reason, those remaining terms, conditions and provisions shall remain valid and enforceable," while the other provision provides that "the balance of the Agreement shall nevertheless remain in full force and effect so long as the Purpose of the Agreement is not affected in any manner adverse to either party." [Filing No. 1-1 at 31.]

Regarding termination, the Agreement provides that:

[Filing No. 1-1 at 27.]

Lastly, the Agreement contains a forum selection clause, which states that:

[Filing No. 1-1 at 32.]

B. Complaint

On August 17, 2018, SBL filed a Complaint against Mr. Pack in Marion Superior Court. [Filing No. 1-1 at 1.] Therein, SBL alleged the following:

SBL requested a preliminary injunction, as well as a permanent injunction prohibiting Mr. Pack from engaging in broker financing services with any of SBL's competitors. [Filing No. 1-1 at 12-13.] In addition, SBL brought claims for breach of contract, breach of fiduciary duties, violation of the Indiana Trade Secrets Act, and unjust enrichment. [Filing No. 1-1 at 13-16.]

C. Removal to Federal Court

On August 30, 2018, Mr. Pack removed this matter to the Court on the basis of diversity jurisdiction. [Filing No. 1.] In response to the Court's Order noting deficiencies in the initial Notice of Removal, [Filing No. 5], on September 8, 2018, Mr. Pack filed an Amended Notice of Removal, [Filing No. 8]. SBL responded to the Amended Notice of Removal and argued that the amount in controversy had not been satisfied. [Filing No. 13.] On October 18, 2018, the Court ruled that Mr. Pack had discharged his obligation to set forth a plausible, good-faith estimate that the amount in controversy in this matter exceeds the statutory threshold, exclusive of interest and costs. [Filing No. 17.]

In the meantime, Mr. Pack filed a Motion to Dismiss for Lack of Personal Jurisdiction, [Filing No. 9], which is now ripe for the Court's review.

III.

DISCUSSION

Mr. Pack moves to dismiss SBL's Complaint on the basis that he is not subject to this Court's personal jurisdiction. [Filing No. 10 at 11.] In so moving, Mr. Pack makes three arguments, each of which the Court will consider in turn.

A. Whether a Contract Exists

Mr. Pack first contends that no contract was formed with SBL because the Agreement "contains conflicting provisions concerning the location of the work, the scope of the work, the payment terms, the termination provisions, the degree to which Mr. Pack was required to comply with SBL's directions, and the scope of the non-solicitation, non-compete, and non-recruitment clauses." [Filing No. 10 at 12.] Due to these six categories of conflicting provisions, Mr. Pack argues that there was a "failure to reach complete agreement as to the contractual terms," which negated mutual assent and prevented the formation of a contract. [Filing No. 10 at 12.]

In response, SBL contends that Mr. Pack's argument that there was no contract is undercut by evidence that Mr. Pack understood his responsibilities under the Agreement and was compensated for performing them. [Filing No. 22 at 5.] As such, SBL argues that the Agreement is a contract that contains a valid forum selection clause in which Mr. Pack agreed to jurisdiction in Indiana. [Filing No. 22 at 1-2.]

In his reply brief, Mr. Pack reiterates his argument that the forum selection clause does not control because the Agreement is invalid. [Filing No. 24 at 1.] He refutes SBL's contention that there was a valid contract because value was conferred upon Mr. Pack, arguing that such an argument cannot save a faulty contract. [Filing No. 24 at 2.]

SBL subsequently filed a supplement as to case law1 arguing that Indiana courts cannot "sua sponte declare the parties' contract void, due to inconsistencies, whether substantive or contrived, in verbiage contained in written documents." [Filing No. 25 at 1.]

Given that "this is a diversity case filed in the State of Indiana, Indiana rules of contract interpretation control." United Leasing, Inc. v. Balboa Capital Corp., 2017 WL 3674926, at *3 (S.D. Ind. Aug. 25, 2017) (citing Hinc v. Lime-O-Sol Co., 382 F.3d 716, 719 (7th Cir. 2004)). Additionally, this Court, sitting in diversity, must "deduce, as closely as possible, how the Indiana Supreme Court would rule" on the question at issue. Hinc, 382 F.3d at 720 (citing Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 636-37 (7th Cir. 2002)).

If ambiguity in a contract "arises because of the language used in the contract . . . then its construction is purely a question of law to be determined by the trial court." AM Gen. LLC v. Armour, 46 N.E.3d 436, 440 (Ind. 2015). "Courts should interpret a contract so as to harmonize its provisions, rather than place them in conflict." Jernas v. Gumz, 53 N.E.3d 434, 444 (Ind. Ct. App. 2016), transfer denied, 59 N.E.3d 252 (Ind. 2016). In addition, "[a] contract should be construed so as to not render any words, phrases, or terms ineffective or meaningless." Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 914 (Ind. 2017) (citations omitted).

This case turns on the Indiana rule of contract interpretation that provides that the "failure to demonstrate agreement on essential terms of a purported contract negates mutual assent and hence there is no contract." Ochoa v. Ford, 641 N.E.2d 1042, 1044 (Ind. Ct. App. 1994) (citation omitted). The Indiana Supreme Court most recently discussed this rule in 2009 and emphasized that the only terms that need be included in a contract are those that are "essential":

Conwell v. Gray Loon Outdoor Mktg. Grp., Inc., 906 N.E.2d 805, 813 (Ind. 2009); see also BRC Rubber & Plastics, Inc. v. Cont'l Carbon Co., 900 F.3d 529, 539 (7th Cir. 2018) (quoting Indiana Law Encyclopedia 279, § 24 cmt.) ("[t]he required writing need not contain all the material terms of the contract, and such material terms as are stated need not be precisely stated. . . .").

However, nowhere in Conwell does the Indiana Supreme Court define or delineate what constitutes an "essential term." Instead, a review of Indiana Court of Appeals cases reveals that whether a particular contract term is "essential" depends on the contract at issue. See, e.g., Jernas, 53 N.E.3d at 447 (holding that the street address of the property to be purchased was an essential element of a real estate contract); B&R Oil Co. v. Stoler, 2016 WL 276722, at *9 (Ind. Ct. App. 2016) (stating that "the release of the plaintiff's claims is among the most material terms in a settlement agreement"); Brodie v. Viking Dev., LLC, 2015 WL 256165, at *7 (Ind. Ct. App. Jan. 21, 2015) ("price is an essential term to a land-sale contract"). However, in Sasso v. Warsaw Orthopedic, Inc., the Indiana Court of Appeals set forth a more detailed analysis for determining whether a contract term is essential. There, the court held that a list of products to be counted as "Medical Devices" was an essential term of the contract because it was "needed to determine whether there [was] a breach and the amount of damages." 45 N.E.3d 835, 841 (Ind. Ct. App. 2015). Two years later in RQAW Corp. v. Dearborn Cty., the Indiana Court of Appeals applied the rule set forth in Sasso and determined that the essential terms of the contract at issue were "the parties, the scope of work to be completed, and the cost of such work" because without such terms "it would be impossible to determine whether a future breach occurred and, if so, what damages would be appropriate." 83 N.E.3d 745, 753 (Ind. Ct. App. 2017).

In this case, Mr. Pack asks for an extreme outcome — a finding from this Court that the Agreement is not a contract and is therefore void because it contains conflicting terms. This, however, is a bridge too far. For starters, some portions of the Agreement with which Mr. Pack takes issue are not necessarily conflicting. For example, Mr. Pack contends that the scope of work provision conflicts with a later provision of the Agreement stating that Mr. Pack "shall be open to conducting similar tasks or services" for SBL "which may not be listed or described [in the statement of work]." [Filing No. 10 at 3.] Mr. Pack reads these two provisions as being in conflict, but this position ignores Indiana's rules of contract interpretation. Indiana courts have held that "[a] contract is not ambiguous merely because the parties disagree as to its proper construction," and a contract must "be read as a whole, and the language construed so as not to render any words, phrases, or terms ineffective or meaningless." Jernas, 53 N.E.3d at 444 (citations omitted). Based on these principles, the Court could conclude that the latter portion of the Agreement does not expand or contradict the scope of work, but instead leaves the door open for Mr. Pack to enter into subsequent or additional contracts with SBL.

Mr. Pack is correct that the Agreement is poorly and even illogically drafted. However, this does not necessarily prevent a meeting of the minds. For example, the non-compete clause of the Agreement discusses non-competition in the state of North Carolina — a curious provision considering that Mr. Pack resided in South Carolina at time the Agreement was signed.2 [Filing No. 1-1 at 19; Filing No. 1-1 at 23-24.] But just as Indiana courts have recognized that "the general rule of freedom of contract includes the freedom to make a bad bargain," Indiana Bell Tel. Co. v. Mygrant, 471 N.E.2d 660, 664 (Ind. 1984), the freedom of contract in Indiana also includes the freedom to make a partially irrelevant, albeit enforceable bargain.

Moreover, even if the Agreement contains some provisions that are in conflict, Mr. Pack makes no effort to argue that any such provision constitutes an essential element under Indiana law. The Court is not persuaded that the Agreement lacks all elements that are "needed to determine whether there is a breach and the amount of damages" under Sasso. As such, the Court rejects Mr. Pack's argument that the Agreement does not constitute a binding contract.3 Because Mr. Pack makes no contention that the parties to the Agreement lacked a meeting of the minds with regard to the forum selection clause itself, or that the forum selection clause is invalid for any other reason, see Farm Bureau Gen. Ins. Co. of Michigan v. Sloman, 871 N.E.2d 324, 329 (Ind. Ct. App. 2007) (holding that forum selection clauses are "enforceable if they are reasonable and just under the circumstances and there is no evidence of fraud or overreaching such that the agreeing party would be deprived of a day in court"), the Court finds that the forum selection clause in the Agreement establishes that this Court has jurisdiction over this matter.

Having determined that the forum selection clause governs, the Court need not discuss Mr. Pack's second argument regarding whether he had sufficient minimum contacts with Indiana to establish jurisdiction, and instead turns to Mr. Pack's third and final argument.

B. Claims do not arise out of the Agreement

Mr. Pack argues that even if the Agreement is a valid contract, the forum selection clause would not apply to Counts III and IV of SBL's Complaint because they are not claims that "arise out of" the contract. [Filing No. 10 at 13.] SBL did not respond to this argument, which Mr. Pack reiterated in his reply brief. [Filing No. 24 at 3.]

Helpful to the Court is Dexter Axle Co. v. Baan USA, Inc., in which the Indiana Court of Appeals considered whether tort and statutory claims arose out of a contract such that they were subject to the contract's forum selection clause. 833 N.E.2d 43 (Ind. Ct. App. 2005). Quoting from the Seventh Circuit, the court stated that:

Id. at 50 (quoting Am. Patriot Ins. Agency, Inc. v. Mut. Risk Mgmt., Ltd., 364 F.3d 884, 889 (7th Cir. 2004)).

Much like the contract at issue in Dexter, the Agreement's forum selection clause encompasses "any claims arising out of this Agreement." [Filing No. 1-1 at 32.] Count III of the Complaint is a claim for a breach of fiduciary duty and a violation of the Indiana Trade Secrets Act, [Filing No. 1-1 at 14-15], and Count IV of the Complaint is a claim for unjust enrichment. [Filing No. 1-1 at 16.] Like the tort and statutory claims at issue in Dexter, the fact that SBL alleges tort and statutory claims here does not mean that such claims do not arise out of the Agreement. To the contrary, the Complaint alleges that Mr. Pack breached his fiduciary duties and violated a statute "[w]hile serving as an independent contractor for SBL and immediately following termination," [Filing No. 1-1 at 14], and was unjustly enriched "by his wrongful conduct, as alleged herein [in the Complaint]," [Filing No. 1-1 at 16]. Both allegations clearly concern the Agreement and Mr. Pack's performance thereof. As such, the Court finds that Counts III and IV of SBL's Complaint arise out of the Agreement and are, therefore, subject to the forum selection clause.

IV.

CONCLUSION

For the reasons detailed herein, the Court DENIES Mr. Pack's Motion to Dismiss on all grounds. [9]. The Court requests that the Magistrate Judge confer with the parties at his earliest convenience regarding whether SBL continues to seek a preliminary injunction, and if so, to establish a briefing schedule.