LAURIE J. MICHELSON, District Judge.
Plaintiff distributed beer in Iraq for Anheuser-Busch, International, Inc., from 2011 to 2012. After Anheuser-Busch International terminated the relationship, Plaintiff filed this action for defamation, fraud, and misappropriation of trade secrets, among other torts. Defendants Anheuser-Busch International and Anheuser-Busch, LLC, seek to dismiss the case, citing a forum selection clause in favor of Geneva, Switzerland, in their distribution agreement with Plaintiff. The Court agrees that the parties' bargained-for choice of forum requires dismissal of Plaintiff's Amended Complaint. Therefore, Defendants' Motion to Dismiss the Amended Complaint (Dkt. 17) is GRANTED and the Amended Complaint is DISMISSED.
Delta Alcohol Distributors ("Delta") filed this action in November 2013. (Dkt. 1.) In December 2013, Defendants filed a Motion to Dismiss on the basis of forum non conveniens and for failure to state a claim upon which relief could be granted. (Dkt. 6.) Five days after the deadline to respond, Plaintiff filed a Motion for Leave to File First Amended Complaint (Dkt. 13), and a First Amended Complaint (Dkt. 14). Although Plaintiff's time to file an amendment as of right under Federal Rule 15(a)(1)(B) had expired, the Court granted the motion and denied as moot Defendants' Motion to Dismiss. (Dkt. 15.)
Defendants filed the present Motion to Dismiss the Amended Complaint on February 4, 2014. (Dkt. 17.) Plaintiff's response brief was due on or before February
The following allegations are from the First Amended Complaint. (Dkt. 14, hereinafter "Am. Compl.")
On August 19, 2011, Delta and Anheuser-Busch
The Letter Agreement was to automatically terminate effective March 31, 2012, unless Delta placed an offer after that date and Anheuser-Busch accepted it, and no new agreement had been proposed. (See Am. Compl. ¶ 33; Letter Agreement ¶ 6.) In that case, the Letter Agreement would be "extended automatically for further periods of three (3) months, commencing on 1st April and expiring automatically at the end of each new term," absent a new proposed agreement. (Id.)
Delta and Anheuser-Busch continued to operate under the Letter Agreement until November 28, 2012, when Anheuser-Busch terminated the relationship. (See Am. Compl. ¶ 35.) While the Letter Agreement provided for termination with or without cause (Letter Agreement ¶ 6), Anheuser-Busch based the termination on a clause of the Letter Agreement that prohibited Delta from violating the Foreign Corrupt Practices Act ("FCPA") of the United States "or similar laws of other countries." (See Am. Compl. ¶¶ 34-35.)
After this termination, in "December 2012, and thereafter, Anheuser-Busch
Also after terminating the Letter Agreement, "under the guise of a bribery investigation against Delta," Anheuser-Busch sought and acquired Delta's trade secrets "by conducting investigations with Iraqi officials, Iraqi persons, Iraqi and Arab businessmen, and others pursuant to Anheuser-Bush's false statements that Delta violated the FCPA, and Iraqi bribery law," and other wrongful means. (Am. Compl. ¶¶ 74-75.) Anheuser-Busch "used Delta's trade secrets to distribute its products in Iraq." (Am. Compl. ¶ 40.) These trade secrets included "knowledge regarding Iraqi officials," "Iraqi informants for marketing and use in covert intelligence gathering for the marketing of alcohol," "strategies for employees' safety involved in alcohol business in an Islamic Republic," "secrets in gaining advantage over its competitors," "knowledge of Iraqi community leaders," "knowledge on religious officials for marketing and use in covert intelligence gathering for the marketing of alcohol and employees' safety in an Islamic Republic and gaining advantage over its competitors," "compilation of business design(s) based on unknown `or not readily ascertainable' business formula(s) and model(s) designed by Delta to dominate the entire Iraqi alcohol market," and "business formula(s) designed by Delta to gain advantage over its competitors in marketing alcohol in Baghdad and Northern Iraq." (Am. Compl. ¶ 61.)
The First Amended Complaint alleges five counts: defamation, misappropriation of trade secrets, unjust enrichment, fraud, and fraudulent inducement. (Am. Compl. at 9-18.)
Requests for extensions of time are governed by Federal Rule of Civil Procedure 6. The Rule provides, in relevant part, that "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time ... (B) on motion made after the time has expired if the party failed to act because of excusable neglect." Fed.R.Civ.P. 6(b)(1). The Supreme Court has said that "`excusable neglect' under Rule 6(b) is a somewhat elastic concept." Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 392, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (footnote omitted). Thus, "[a]lthough inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect," extensions of time under Rule 6(b)(1)(B) are "not limited strictly to omissions caused by circumstances beyond the control of the movant." Id. (citation omitted). The determination of whether a party's neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395, 113 S.Ct. 1489.
Applying the factors identified by the Supreme Court in Pioneer Investment, the Sixth Circuit has held that the governing legal standard for excusable-neglect determinations is a balancing of five principal factors: (1) the danger of prejudice to the nonmoving party, (2) the length of the
The reason given for Delta's late filing — that "counsel has lost two of its main support personnel with the last two weeks" — does not establish good cause for a four-week delay in filing a response to a dispositive motion. (See Dkt. 26 at ¶ 12.) Moreover, this is not the first time Delta has missed a deadline in this case, and the Court previously cautioned Delta to be mindful of deadlines. (See Dkt. 15.) On the other hand, Defendants do not indicate that there is any danger of prejudice to them if the motion for extension is granted. (See Dkt. 27.) And in general, briefs in response to a dispositive motion are of assistance to the Court, so permitting the filing of a response may promote judicial efficiency.
The Court does not take lightly a party's failure to comply with deadlines. Nonetheless, taking all of the circumstances into account, Delta's Motion to Extend/Enlarge Time to File Answer to Defendant's Motion to Dismiss the Amended Complaint (Dkt. 26) is GRANTED.
Defendants argue that a forum-selection clause in the parties' distribution agreement requires dismissal of this action. (Mot. at 1-2.) Plaintiff responds that it is premature to consider this motion without affording the opportunity for discovery (Opp. at 1-2) and that the forum selection clause does not apply because the claims are based on actions Defendants took "when there was absolutely no relationship whatsoever between the parties, thus the Letter Agreement is totally irrelevant" (Opp. at 5).
Plaintiff's argument that the motion is premature is not persuasive. A motion to dismiss for forum non conveniens is properly brought at the earliest possible time, and courts do not typically permit discovery before hearing such motions. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) ("Requiring extensive investigation would defeat the purpose of their motion."); Barak v. Zeff, 289 Fed. Appx. 907, 915-16 (6th Cir.2008) (agreeing with the district court that allowing discovery "would establish a perverse incentive" that would "encourage other plaintiffs to file their lawsuits in, what they know to be, inconvenient forums with the hope that the court will allow them to engage in discovery in the forum even though the case must be transferred elsewhere"); 14D Wright and Miller et al., Fed. Prac. & Proc. § 3828 (4th ed.) ("Courts normally will deny a motion for extensive discovery on a forum non conveniens motion and often will decide the issue on affidavits alone. This approach is consistent with the purpose of the forum non conveniens doctrine, which is to protect defendants and the federal courts from expending resources on matters having little connection to this country from litigation in an inconvenient forum.").
Moreover, Delta has not specifically identified what information it hopes to discover that could change the forum analysis. Although Delta argues that Anheuser-Busch's motion relied on "unauthenticated documents which have no foundation" (Opp. at 1-2), Delta does not appear to seriously contend that it did not sign the Letter Agreement. In fact, the Amended Complaint relies on and quotes from the Letter Agreement. (See Am.
The Letter Agreement entered into by Plaintiff and Defendant Anheuser-Busch International, Inc., in August 2011 contains the following provision:
(Letter Agreement ¶ 7.) Plaintiff argues that the forum selection clause is irrelevant to this action because the tortious conduct underlying its claims occurred before the Agreement was signed or after it was terminated. (Opp. at 5-9.) Defendants argue that although "Delta has tried to plead around the clause," it "cannot circumvent the Agreement's forum-selection clause simply by claiming that the offending conduct occurred outside the contract term." (Mot. at 1, 8.)
In a diversity suit, enforceability of a forum selection clause is governed by federal law. See Wong v. PartyGaming Ltd., 589 F.3d 821, 828 (6th Cir.2009). Defendants rely on a case from another district court in this Circuit, in which the court rejected an argument similar to Delta's. (See Mot. at 8.) The forum selection clause at issue in Allied Sound, Inc. v. Dukane Corp., 934 F.Supp. 272 (M.D.Tenn.1996), provided that "[a]ny legal proceeding by either party against the other shall be filed only in the United States District Court for the Northern District of Illinois, Eastern Division, or the Circuit Court of Cook County Illinois." Id. at 276. The plaintiff argued that the clause did not apply because the agreement between the parties was terminated before the defendant's allegedly tortious activity took place. Id. at 275. The plaintiff's claim against the defendant for tortious interference of contractual relations alleged that the defendant's termination of its distributorship agreement with the plaintiff caused a third party to withdraw its intention to use plaintiff as a distributor. Id. at 274. The court found that "the termination of the agreement between the parties is the focal point of the facts out of which the tort action arises," and that "[t]he choice of forum provision was not drafted in a manner indicating application only to those actions in which the agreement plays an integral role." Id. at 275-76. Because "the plaintiff's action is intertwined with the agreement," the termination of the agreement did not invalidate the forum selection clause. Id. at 276.
Plaintiff argues that Allied Sound should be distinguished from this case because here "the parties limited the jurisdiction of Swiss Courts to agreements and disputes therefrom during a relationship." (Opp. at 7.) But the basis for this statement is not at all clear. Although the sentence immediately preceding the forum selection clause, regarding applicable law, does state that "agreements" are governed by Swiss law, the forum selection clause does not contain any such limitation. In fact, its language is broad: "All disputes shall be submitted to the exclusive jurisdiction of the courts of Geneva." (Letter Agreement ¶ 7 (emphasis added).)
Another district court in this Circuit found that a forum selection clause applied to tort claims although it was paired with a
The case law reviewed by the Court supports broad application of the forum selection clause although Delta's claims are not for breach of the contract and even if the alleged tortious conduct occurred before the contract commenced or after it terminated. See Hugel v. Corp. of Lloyd's, 999 F.2d 206, 209 (7th Cir.1993) ("all of the plaintiffs' claims arise from the contractual relationship and are therefore within the scope of the forum selection clause"); Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 203 (3d Cir.1983) ("where the relationship between the parties is contractual, the pleading of alternative non-contractual theories of liability should not prevent enforcement of such a bargain"), cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983); Travelers Prop. Cas. Co. of Am. v. Centimark, Corp., 2:04-CV-0916, 2005 WL 1038842 (S.D.Ohio May 3, 2005) ("Most litigation concerning the scope of a forum selection clause concerns whether a clause covering `all disputes' arising out of a contract should be construed to cover tort claims in addition to contract claims. In those cases, courts have held that where a tort claim is substantially related to the contract claim in terms of factual and legal issues, the forum selection clause covers the tort claim as well."); Advent Electronics, Inc. v. Samsung Semiconductor, Inc., 709 F.Supp. 843, 846 (N.D.Ill.1989) (rejecting plaintiff's argument that the forum selection clause became unenforceable when defendant terminated the agreement because "[t]ermination of a contract does not divest parties of rights and duties already accrued."). Plaintiff has not cited any case law to the contrary.
Moreover, Plaintiff's own pleadings belie its argument that the Letter Agreement is irrelevant. Plaintiff says in the Amended Complaint that "[t]his action arises out of a relationship between Delta Alcohol Distributors and Anheuser-Busch for Delta's distribution of alcoholic products in dangerous and volatile Iraq between August 19, 2011 to November 28, 2012." (Am. Compl. ¶ 3.) And although the Amended Complaint states repeatedly that the alleged tortious conduct took place before
Regardless, Plaintiff's allegations — that Defendants fraudulently induced Plaintiff to enter into the Letter Agreement, misappropriated trade secrets during their investigation related to the termination of the Letter Agreement, and made defamatory statements about the reason for terminating the Letter Agreement — are so intertwined with the Letter Agreement that application of the Agreement's forum selection clause should have been foreseen by Plaintiff, a sophisticated party. See Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., ___ U.S. ___, 134 S.Ct. 568, 583, 187 L.Ed.2d 487 (2013) ("When parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties' settled expectations."); Allied Sound, 934 F.Supp. at 276 ("When an action arises from a contract or contractual relationship between two parties, the choice of forum clause in that contract governs."). Accordingly, the Court will apply the parties' Letter Agreement's choice of forum clause to these claims.
Having found that this action is within the scope of the parties' forum selection clause, the Court turns to whether the clause requires dismissal of this case. Where a forum selection clause points to foreign forum, the appropriate way to enforce it is through the doctrine of forum non conveniens. See Atl. Marine, 134 S.Ct. at 580.
Generally, "dismissal on forum non conveniens grounds is appropriate when the defendant establishes, first, that the claim can be heard in an available and adequate alternative forum and, second, that the balance of private and public factors listed in Gulf Oil ... reveals that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court." Duha v. Agrium, Inc., 448 F.3d 867, 873 (6th Cir.2006) (citing Gulf Oil Corp v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Reyno, 454 U.S at 256 n. 23, 102 S.Ct. 252). But where there is an applicable forum-selection clause, the calculus changes. The Supreme Court recently held in a unanimous decision that "[w]hen parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation. A court accordingly must deem the private-interest factors to weigh entirely in favor of the preselected forum," and "may consider arguments about public-interest factors only." Atl. Marine, 134 S.Ct. at 582.
First, the courts of Geneva, Switzerland, are an available and adequate alternative forum. This requirement is satisfied if the defendant is amenable to process in the foreign jurisdiction. Wong, 589 F.3d at 830 (citing Reyno, 454 U.S. at 255 n. 22, 102 S.Ct. 252). A party that has consented in a forum selection clause to submit to the jurisdiction of a foreign court is amenable to process there. See id. at 831. The
Second, public interest considerations do not weigh against trial in Geneva. The public interest factors to be considered on a motion for forum non conveniens include "congestion of the courts; the burden of jury duty `upon the people of a community which has no relation to the litigation'; the `local interest in having localized controversies decided at home'; and, in a diversity case, the advantage of holding the trial `in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.'" Barak, 289 Fed.Appx. at 910 (citing Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839). As to these factors, Defendants argue that the Supreme Court has said they "will rarely defeat" a forum non conveniens motion and thus "the practical result is that forum selection clauses should control except in unusual cases." (Opp. at 10-11 (quoting Atl. Marine, 134 S.Ct. at 582).) Defendants do not address the public interest factors individually except to state that "the public interest of conservation of judicial resources and respect for the freedom of sophisticated parties to contract weigh in favor of dismissal." (Id. at 11.) Plaintiff does not address the public interest factors at all. The Court notes that under the Letter Agreement, the parties' agreement is governed by Swiss law, which weighs in favor of the Geneva courts. (See Letter Agreement ¶ 7.) And although the Amended Complaint conclusorily alleges that "Michigan is the place where the conduct causing the injury occurred" (Am. Compl. ¶ 11), it appears to the Court that most of the conduct alleged occurred in Iraq. Therefore, it is not obvious why the people of Michigan would have any interest in Plaintiff's claims, and the Court declines to speculate further.
As the Supreme Court recently explained, "[i]n all but the most unusual cases ... `the interest of justice' is served by holding parties to their bargain" by enforcing a forum-selection clause, because it "may have figured centrally in the parties' negotiations and may have affected how they set monetary and other contractual terms; it may, in fact, have been a critical factor in their agreement to do business together in the first place." Atl. Marine, 134 S.Ct. at 583. In this case, the Court finds that the parties should be held to their bargained-for forum selection clause.
Because the Amended Complaint must be dismissed under the parties' forum selection clause, the Court will not address
For the reasons stated, Delta's Motion to Extend/Enlarge Time to File Answer to Defendant's Motion to Dismiss the Amended Complaint (Dkt. 26) is GRANTED, Defendants' Motion to Dismiss the Amended Complaint (Dkt. 17) is GRANTED, and the Amended Complaint (Dkt. 14) is DISMISSED.
