FRANK D. WHITNEY, Chief District Judge.
Laureate, Inc. is a Maryland company that supports a global network of campus-based and online higher learning institutions, none of which are in North Carolina. Laureate BV is a Dutch affiliate of Laureate, Inc. that maintains online programs for several universities. Plaintiff Tree.Com, Inc., a Delaware company with headquarters in North Carolina, maintains DegreeTree.com, a website that allows prospective students to compare higher learning institutions. Tree sells data (or "leads") regarding prospective students to educational institutions such as Laureate, Inc..
Plaintiff alleges that in early 2011, Plaintiff and Defendants entered into an agreement whereby Plaintiff would sell particular leads to Defendants for three universities. Defendants agreed to Plaintiff's Standard Terms and Conditions which included a forum selection clause for state and federal courts in North Carolina. This agreement was signed by Hannes Willems, Laureate BV's media buyer for Walden University, who wrote "Laureate Online Education, BV" above his signature line. Pursuant to these terms, Defendants would submit an insertion order ("IO") to Plaintiff which requested a delivery of leads, supplied a fee to be paid per lead, relayed lead posting instructions, and conveyed the criteria required for payment. The Standard Terms and Conditions of the IO's also contained a 1.5% interest charge or the maximum rate allowed by law for all overdue balances from the due date until the date payment was received. If a particular lead did not conform to the criteria supplied in Defendants' posting instructions, email, or other communications, Defendants were not responsible for paying for that individual lead.
Plaintiff alleges that from April 2011 through February 2012, the parties performed the lead reconciliation at the end of each month and reached mutual agreements as to the proper adjustments to Plaintiff's initial invoices. However, in March 2012, Defendants stopped participating in the month-end lead reconciliation and began underpaying Plaintiff's invoices without providing data or justification. Plaintiff asserts that Defendants began using a "Lead Scoring Model" in violation of Plaintiff's Standard Terms and Conditions. Plaintiff attempted to reconcile with Defendants with no success. Per Laureate BV's request, Plaintiff sent employees to Laureate BV's headquarters in Amsterdam, the Netherlands. However, Defendants refused to address the underpayments. Plaintiff's Chief Financial Officer sent multiple communications to Defendants' executives requesting their cooperation in resolving the dispute but failed to receive any substantive response.
On December 20, 2012, Plaintiff filed suit in the Superior Court of Mecklenberg County, North Carolina. This case was removed to this Court by Defendants on January 22, 2013. Defendants have not answered the Complaint, but instead now seek dismissal pursuant to Rules 12(b)(2), 12(b)(3), and 12(b)(6) of the Federal Rules of Civil procedure.
With respect to the first two portions of Defendants' Motion, Defendants argue this case should be dismissed under Rule 12(b)(2) of the Federal Rules of Civil Procedure because this Court lacks personal jurisdiction over either of them, and that this case should be dismissed under Rule 12(b)(3) on the grounds that venue is not appropriate in Charlotte, North Carolina. With respect to these issues, the Court first analyzes the forum selection clause in this case, which places jurisdiction and venue in Charlotte, North Carolina. Contracts which contain "forum selection clauses" have generally been held enforceable. The Supreme Court has held that forum selection provisions are "prima facie valid" and should be enforced absent a "clear[] show[ing] that enforcement would be unreasonable or unjust, or that the clause [i]s invalid for such reasons as fraud or overreaching," or "if enforcement would contravene a strong public policy of the forum in which suit is brought."
Defendants contend Plaintiff's Terms and Conditions as signed by Willems are not enforceable. Defendants assert because Willems lacked the authority to bind Defendants, and additionally had no relationship with Laureate, Inc., but only Laureate BV, the forum selection clause is therefore unenforceable. While it appears to the Court that Willems' signature does in fact bind both Defendants to the contract, based upon Defendants' actions after the contract was signed, the Court finds that both Defendants are bound. Moreover, on various grounds, courts have refused to disregard a forum selection clause based on whether the signatory was authorized to sign.
The Court first addresses whether the forum selection clause is mandatory. "[F]orum selection clause[s] can be either mandatory . . . providing the designated forum with exclusive jurisdiction over any disputes . . . or permissive, providing the designated forum with jurisdiction over the parties, but not necessarily exclusive jurisdiction."
In this case, Plaintiff's Standard Terms and Conditions specify a mandatory provision:
(Doc. 7-5 ¶ 12.4) (emphasis added). This clause uses the terms "any" and "exclusively" and the language is unequivocally mandatory. Accordingly, the language of the forum selection clause binds Defendants to the choice of law and choice of jurisdiction and venue in the state and federal courts of Charlotte, North Carolina. In addition, the plain language of the clause puts any dispute arising under the Agreement under its provisions.
With respect to reasonableness, "such clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances."
There are insufficient allegations in this case that the forum selection clause was the result of fraud or overreaching. Defendants contend the IOs contained all necessary information to govern the relationship and that Plaintiff's Terms and Conditions did not apply to the subsequent monthly individual IOs after the dispute arose. This Court disagrees, finding the IOs did not contain separate clauses or provisions. The Terms and Condition's forum selection clause and modification section explicitly state, "Should a dispute arise under or in relation to this Agreement . . . This Agreement may not be modified . . . ." (Doc 7-5 ¶¶ 12.4, 12.6) (emphasis added). Accordingly, the forum selection clause is not the result of fraud or overreaching by Plaintiff.
Furthermore, the parties will not face grave inconvenience resulting from venue in the Western District of North Carolina even though one party is in the Netherlands. Generally, "courts are in agreement that the expense of litigation is insufficient to invalidate a forum selection clause, especially in a diversity case."
Finally, with respect to North Carolina public policy, this Court has previously noted that "North Carolina has a well recognized and strong public policy against forum selection clauses."
Having determined that there was no fraud or overreaching in this case, Defendants will not be gravely inconvenienced or denied their day in court, enforcing this forum clause would not be fundamentally unfair. Additionally, because North Carolina is outweighed by the other factors at issue, this Court holds that the forum selection clause is proper. Accordingly, based on the forum selection clause, jurisdiction and venue are appropriately in this Court and within the Western District of North Carolina. The Court need not proceed any further in its analysis on these issues. As such, the Defendants' Motion to Dismiss pursuant to Rule 12(b)(2) and Rule 12(b)(3) is DENIED.
Finally, Defendants contend that Plaintiff's claim under quantum meruit should be dismissed pursuant to Rule 12(b)(6) because it relates to amounts that Plaintiff claims to be owed under an express contract. Defendants contend that a claim for unjust enrichment may not be brought in the face of an express contractual relationship between the parties. However, Rule 8(d) of the Federal Rules of Civil Procedure provides that parties may make both alternate and inconsistent claims. Defendant argues that Plaintiffs claims are not pled in the alternative to each other. Plaintiff argues that it meant to plead these claims as alternative claims and states that it will move to amend the Compliant if necessary. For the sake of efficiency, the Court deems quantum meruit to be an alternative theory of Plaintiff moving forward, and Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) is DENIED.
For the above reasons, Defendants' Motion to Dismiss pursuant to Rules 12(b)(2), 12(b)(3), and 12(b)(6) of the Federal Rules of Civil procedure is DENIED. This case will remain before this Court, and Defendants are hereby ORDERED to submit their Answer to Plaintiff's Complaint within ten (10) days of the issuance of this Order.
IT IS SO ORDERED.