MIRANDA M. DU, District Judge.
This case arises from Plaintiff American Specialty Lab, LLC's ("ASL") purchase of equipment from Defendant GenTech Scientific, Inc. ("GenTech"). GenTech has filed two motions: (1) motion to dismiss pursuant to Rule 12(b)(6) ("Motion to Dismiss") (ECF No. 8); and (2) motion to dismiss pursuant to Rule 12(b)(3), or in the alternative, motion to transfer venue ("Motion to Transfer") (ECF No. 10). The Court has reviewed ASL's responses (ECF Nos. 11, 12) and GenTech's replies (ECF Nos. 13, 14). For the reasons discussed below, the Court grants the Motion to Transfer and declines to address the Motion to Dismiss.
The following facts are taken from the Complaint. (ECF No. 1.) ASL owns a lab that evaluates herbs and other biological issues. GenTech makes a number of claims on its website about its products and services, including that it is "well known throughout the analytical instrumentation community for its excellent service, repair and support." (ECF No. 1 at 3-4.) ASL purchased certain equipment from GenTech for $75,000.00, but the equipment "never worked according to the specification and to the satisfaction of the desired and projected results." (Id. at 5.) ASL asserts claims for breach of contract and breach of the implied covenant of good faith and fair dealing.
GenTech relies on the forum-selection clause in the "Customer Purchase Order" ("the Purchase Order") to argue that venue is not proper in Nevada and seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(3), or in the alternative, to transfer venue pursuant to 28 U.S.C. § 1404. (ECF No. 10 at 2-3.) The Court may consider the Purchase Order in deciding the Motion to Transfer under Rule 12(b)(3). See Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004) (the court may consider matters outside the pleadings in deciding a motion made pursuant to Fed. R. Civ. P. 12(b)(3).) Moreover, ASL agrees that the Purchase Order governs the parties' dispute. (ECF No. 12 at 4.) The Purchase Order is a single page document that contains the following provision ("Terms and Conditions") to the right of the signature line and immediately below the date, which states:
(ECF No. 10 at 9.) Paragraph 30 of the Terms and Conditions ("the Clause") provides, in pertinent part, that the parties agree that any dispute arising under their agreement "shall be finally settled in an action commenced and maintained in any state or federal district court sitting in WYOMING COUNTY, New York . . ." (Id. at 13.) Accordingly, GenTech argues that the Court should enforce the Clause and dismiss this action, or in the alternative, transfer this action to the federal district court sitting in Wyoming County, New York.
The Supreme Court in Atlantic Marine Construction Company, Inc. v. United States District Court for the Western District of Texas, 134 S.Ct. 568 (2013), clarified the procedure for enforcing a forum-selection clause. As the Court explained, 28 U.S.C. § 1404(a) "provides a mechanism for enforcement of forum-selection clauses that point to a particular federal district court." Id. at 579. In dicta, the Court noted that a Rule 12(b)(3) motion is not a proper mechanism to enforce a forum-selection clause; Rule 12(b)(3) allows for dismissal based on "improper venue" but whether venue is "improper" is governed by 28 U.S.C.§ 1391. Id. at 577, 580. Here, GenTech does not contend that venue is improper in this Court under § 1391. GenTech instead seeks to change venue solely because of the forum-selection clause in the Purchase Order, not because venue is not proper in this Court. Indeed, the Complaint sufficiently alleges venue in this Court. (ECF No. 1 at ¶ 4 ("Substantial portion of the activities occurred in Las Vegas.")) Thus, the Court will consider GenTech's Motion to Transfer under section 1404(a).
"[B]ecause the overarching consideration under § 1404(a) is whether a transfer would promote the interest of justice, a valid forum-selection clause should be given controlling weight in all but the most exceptional cases." Atlantic Marine, 134 S.Ct. at 581 (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988)) (internal quotation marks and alteration omitted). The Court instructs "district courts to adjust their usual § 1404(a) analysis in three ways": (1) disregard the plaintiff's choice of forum; (2) disregard "arguments about the parties' private interests"; and (3) "consider arguments about public-interest factors only." Id. at 581-82. The Supreme Court recognizes that this "analysis presupposes a contractually valid forum-selection clause." Id. at 579 n. 5. In the Ninth Circuit, a "forum selection clause is presumptively valid; the party seeking to avoid a forum selection clause bears a heavy burden to establish a ground upon which [the court] will conclude the clause is unenforceable." Doe 1 v. AOL LLC, 552 F.3d 1077, 1083 (9th Cir. 2009) (internal quotation marks and citation omitted).
GenTech insists that under Ninth Circuit case law, the Clause is presumptively valid and should be enforced. The Clause is clear as to forum—any dispute under the Purchase Order "shall be finally settled in an action commenced and maintained in any state or federal district court sitting in WYOMING COUNTY, New York . . ." (ECF No. 10 at 13.)
The gist of ASL's response is that the Terms and Conditions are not part of the Purchase Order, and hence are not enforceable, by characterizing the Terms and Conditions as a "browsewrap agreement."
The Purchase Order does not share any substantial features with a browsewrap agreement.
ASL has not met its "heavy burden" of providing any basis for the Court to determine that the Clause is invalid. The Court agrees with GenTech that the forum-selection clause in the Purchase Order is enforceable. That Clause provides for the proper forum to be the state or the federal district court sitting in Wyoming County, New York. The Court will transfer this case to the federal district court sitting in Wyoming County, New York.
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the Motion to Transfer.
It is therefore ordered that the motion to dismiss under Rule 12(b)(3), or in the alternative, motion to transfer venue (ECF No. 10) is granted. This case will be transferred to the United States District Court for the Western District of New York. In light of the transfer of venue, the Court declines to address the Motion to Dismiss (ECF No. 8).
The Clerk is directed to effectuate the transfer of this case.