Filed: Jul. 12, 2006
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 06a0242p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellant, - PREFERRED CAPITAL, INC., - - - No. 05-3584 v. , > ASSOCIATES IN UROLOGY, - Defendant-Appellee. - N Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 04-02359—James Gwin, District Judge. Argued: June 6, 2006 Decided and Filed: July 12, 2006 Before: SILER, CLAY, and McKEAGUE, Ci
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 06a0242p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellant, - PREFERRED CAPITAL, INC., - - - No. 05-3584 v. , > ASSOCIATES IN UROLOGY, - Defendant-Appellee. - N Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 04-02359—James Gwin, District Judge. Argued: June 6, 2006 Decided and Filed: July 12, 2006 Before: SILER, CLAY, and McKEAGUE, Cir..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0242p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
PREFERRED CAPITAL, INC.,
-
-
-
No. 05-3584
v.
,
>
ASSOCIATES IN UROLOGY, -
Defendant-Appellee. -
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 04-02359—James Gwin, District Judge.
Argued: June 6, 2006
Decided and Filed: July 12, 2006
Before: SILER, CLAY, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Tamara A. O’Brien, RODERICK LINTON, Akron, Ohio, for Appellant. Dante C.
Rohr, MATTIONI, LTD., Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Tamara A.
O’Brien, RODERICK LINTON, Akron, Ohio, for Appellant. Dante C. Rohr, John Mattioni,
MATTIONI, LTD., Philadelphia, Pennsylvania, Gene B. George, Thomas M. Wynne, RAY,
ROBINSON, CARLE & DAVIES, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff, Preferred Capital, Inc., appeals the district court Order
granting Defendant, Associates in Urology’s Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of
jurisdiction. The district court found that the forum selection clause in the contract between
Defendant and Plaintiff, whose interest was assigned to Plaintiff by non-party NorVergence, was
unenforceable for being unjust. For the reasons set forth below, we hold that the district court
improperly found the forum selection clause to be invalid, and erred in granting Defendant’s motion
to dismiss. We therefore REVERSE the district court.
I.
Plaintiff, Preferred Capital, Inc., is an Ohio company. Defendant, Associates in Urology,
is a medical practice group with its principal place of business in Ridley Park, Pennsylvania.
1
No. 05-3584 Preferred Capital, Inc. v. Associates in Urology Page 2
Defendant also operates in Delaware and eastern Pennsylvania. It is undisputed that Defendant does
not do business in, nor has any contacts with, the state of Ohio.
On February 16, 2004, Defendant entered into three lease agreements with NorVergence,
Inc.,1 a New Jersey company, for the rental of telecommunications equipment, and agreed to make
monthly payments on said equipment for a period of sixty months. Defendant accepted delivery of
the equipment and signed the lease agreements on May 10, 2004, each of which contained the
following forum selection clause:
This agreement shall be governed by, construed and enforced in accordance with the
laws of the State in which Rentor’s principal offices are located or, if this Lease is
assigned by Rentor, the State in which the assignee’s principal offices are located,
without regard to such State’s choice of law considerations and all legal actions
relating to this Lease shall be venued exclusively in a state or federal court located
within that State, such court to be chosen at Rentor or Rentor’s assignee’s sole
option. You hereby waive right to a trial by jury in any lawsuit in any way related
to this rental.
(J.A. at 49.) Unbeknownst to Defendant, its agreements with NorVergence had already been
assigned to Plaintiff.2 Defendant was notified of the assignments via three individual letters dated
May 11, 2004. The letters identified Plaintiff as the assignee and Plaintiff’s business address as
6860 West Snowville Road in Brecksville, Ohio. Following the assignments, Defendant failed to
make timely rental payments, thereby defaulting on the agreements.
On October 19, 2004, Plaintiff filed suit against Defendant in the Court of Common Pleas
for Summit County, Ohio, claiming damages in the amount of $76, 724.01. Defendant removed the
case to the U.S. District Court for the Northern District of Ohio on November 29, 2004. In its
Answer, Defendant denied all liability and raised affirmative defenses, including lack of jurisdiction,
improper venue, and forum non conveniens.
On January 14, 2005, Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(2) for lack of jurisdiction over the person, or in the alternative for summary judgment pursuant
to Rule 56. The district court granted Defendant’s 12(b)(2) motion to dismiss on April 5, 2005.
Plaintiff timely appealed to this Court on April 28, 2005.
II.
This Court reviews de novo the district court’s dismissal of a case for lack of personal
jurisdiction under rule 12(b)(2). Nationwide Mut. Ins. Co. v. Tryg Int’l Ins. Co., Ltd, 91 F.3d 790,
793 (6th Cir. 1996). If the Court grants the defendant’s motion without holding an evidentiary
hearing, then the Court must consider the pleadings and affidavits in a light most favorable to the
1
The district court provides rather extensive background about NorVergence, stating that NorVergence is now
the subject of a fraud investigation by the Federal Trade Commission. NorVergence is accused of having defrauded
about 11,000 customers, mostly small businesses, by making misleading claims that it would provide them with years
of dramatic savings on monthly telephone, cellular and internet bills. NorVergence claimed that savings would be
generated by a “Matrix” black box that would be installed on customers’ premises. In reality, according to the FTC, the
black boxes that NorVergence rented to customers for inflated prices of $400 to $5700 per month were nothing more
than standard telephone routers that had little do with savings.
2
Plaintiff’s agreements with NorVergence were subject to assignment under the terms of a Master Program
Agreement that was entered into between Defendant and NorVergence on September 30, 2003. Pursuant to that
agreement, Plaintiff had the option to accept the assignment of existing and future rental agreements between
NorVergence and its customers.
No. 05-3584 Preferred Capital, Inc. v. Associates in Urology Page 3
plaintiff; and the plaintiff need only make a prima facie showing of jurisdiction to defeat such a
motion. Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998). Dismissal is proper
where the facts taken together fail to establish a prima facie case for personal jurisdiction.
Compuserve, Inc. v. Patterson,
89 F.3d 1257, 1262 (6th Cir. 1996).
We also note that “the enforceability of a forum selection clause is a question of law that
we review de novo.” Baker v. LeBoeuf, Lamb, Leiby & Macrae, 105 F.3d 1102, 1104 (6th Cir.
1997) (citing Shell v. R.W. Storage, Ltd.,
55 F.3d 1227, 1229 (6th Cir. 1995)). We need not consider
whether to apply state or federal law to decide this issue because Ohio law and federal law treat
forum selection clauses similarly. General Electric Co. v. G. Siempelkamp,
29 F.3d 1095, 1098 n. 3
(6th Cir. 1994).
III.
“[T]he requirement that a court have personal jurisdiction over a party is a waivable right
and there are a variety of legal arrangements whereby litigants may consent to the personal
jurisdiction of a particular court system.” Kennecorp Mortgage Brokers, Inc. v. Country Club
Convalescent Hospital, Inc., 610 N.E.2d 987, 988 (Ohio 1993). The use of a forum selection clause
is one way in which contracting parties may agree in advance to submit to the jurisdiction of a
particular court. See generally M/S Bremen v. Zapata Offshore Co.,
407 U.S. 1 (1972).
A forum selection clause contained in an agreement in connection with an arm’s length
commercial transaction between two business entities is valid and enforceable. Kennecorp, 610 N.E.
2d at 988 (upholding the validity of a forum selection clause in a contract between a California
company and an Ohio-based company which designated Ohio as the forum and Ohio law as the
choice of law). The Supreme Court has stated that in light of present-day commercial realities, a
forum selection clause in a commercial contract should control, absent a strong showing that it
should be set aside. M/S
Bremen, 407 U.S. at 15; see also General Electric
Co., 29 F.3d at 1099
(rejecting Plaintiff’s attempts to avoid litigating in Germany, the forum identified in the forum
selection clause, as opposed to Ohio, on the grounds that Plaintiff, a sophisticated business had
agreed to the deal and because Germany was where the deal was signed and negotiated, the goods
were manufactured, much of the contract was performed and presumably where witnesses would
be located); Kennecorp,
610 N.E. 2d at 989.
In determining the validity of a particular forum selection clause, we thus consider the
following factors: (1) the commercial nature of the contract; (2) the absence of fraud or
overreaching; and (3) whether enforcement of the forum selection clause would otherwise be
unreasonable or unjust. Info. Leasing Co. v. Jaskot, 784 N.E.2d 1192, 1195-96 (Ohio Ct. App.
2003); see also M/S
Bremen, 407 U.S. at 15; and Kennecorp,
610 N.E. 2d at 989. In deciding this
appeal, we address each of the three factors below:
1. Commercial Nature of the Contract
The commercial nature of a contract is a vital factor weighing in favor of enforcement of a
forum selection clause. Info. Leasing Co., 784 N.E.2d at 1195. Commercial forum selection
clauses between for-profit business entities are prima facie valid. “[S]uch clauses are prima facie
valid in the commercial context, so long as the clause has been freely bargained for.” Kennecorp,
610 N.E. 2d at 989; Info. Leasing
Co., 784 N.E.2d at 1195 (finding that defendant sole
proprietorship was not in the same position as a consumer who enters into an agreement with a
commercial entity, and was presumed “to have some experience in contractual and business
matters.”).
The commercial nature of the agreements is not in dispute. Both parties agree that the forum
selection clause at issue here is part of a commercial contract between business entities.
No. 05-3584 Preferred Capital, Inc. v. Associates in Urology Page 4
2. Fraud or Overreaching
A valid forum selection clause must not be the product of fraud or overreaching. See Info.
Leasing Co., 784 N.E.2d at 1196; Kennecorp,
610 N.E. 2d at 989. Defendant claims that the forum
selection clause at issue here is invalid because “Preferred Capital along with NorVergence
fraudulently induced Associates into accepting the forum-selection clause.” (Defendant’s Br. at 14.)
Defendant further alleges that the forum selection clause was fraudulent because Plaintiff and
NorVergence, unbeknownst to Defendant, had already agreed to the assignment at the time that
Defendant entered into the original contract with NorVergence. Plaintiff argues, and the district
court held, that no matter what NorVergence may have intended, the forum selection clause itself
was not the product of fraud. We agree that Defendant has produced no evidence which would
indicate that Defendant was fraudulently induced to enter into the forum selection clause with
NorVergence.
In Moses v. Bus. Card Express, 929 F.2d 1131 (6th Cir. 1991), this Court reviewed the
validity of forum selection and choice of law clauses in a franchise agreement. The plaintiff in that
case appealed the district court’s enforcement of the clauses, arguing that the defendant’s fraudulent
intent invalidated the clauses. This Court affirmed the district court, holding that:
[U]nless there is a showing that the alleged fraud or misrepresentation induced the
party opposing a forum selection clause to agree to inclusion of that clause in a
contract, a general claim of fraud or misrepresentation as to the entire contract does
not affect the validity of the forum selection clause.
Moses, 929 F.2d at 1138 (citing Scherk v. Alberto-Culver Co.,
417 U.S. 506, 519 n.14 (1974))
(emphasis in original).
Defendant here offers no evidence of fraud, misrepresentation, or overreaching on the part
of Plaintiff or NorVergence in inducing Defendant to agree to inclusion of the forum selection clause
in the agreements. While it appears that the original party to the agreement, NorVergence, was
probably engaged in some illegal and fraudulent activities involving many of its clients, and possibly
even Defendant, there is no allegation that Defendant did not knowingly and willingly consent to
inclusion of the forum selection clause in the agreement. As stated by the district court, “[g]eneral
claims of fraud against NorVergence do not suffice” to invalidate the forum selection clause. (J.A.
at 76.)
3. Whether the Forum Selection Clause is Unreasonable or Unjust
Lastly, the case law provides that an otherwise valid forum selection clause cannot be upheld
if it is “unreasonable or unjust.” Info. Leasing Corp., 784 N.E.2d at 1196 (citations omitted).
“Under this step of the analysis, courts are to determine whether the chosen forum is so inconvenient
as to, in effect, afford no remedy at all, thus ‘depriving litigants of their day in court.’”
Id. (citations
omitted). A finding of unreasonableness or injustice must be based on more than mere
inconvenience to the party seeking to avoid the requirements of the forum selection clause.
Id. It
must instead appear that “enforcement in Ohio would be ‘manifestly and gravely inconvenient’ to
the party seeking to avoid enforcement such that it will ‘effectively be deprived of a meaningful day
in court.’”
Id. (quoting Bremen, 407 U.S. at 19).
The Ohio Eighth District Court of Appeals addressed a similar issue in the unreported case,
Copelco Capital v. St. Marks Presbyterian Church, No. 77633, 2001 WL 106328 (Ohio Ct. App.
2001). The defendants in Copelco were St. Marks Presbyterian Church and its pastor, Reverend
Joan Campbell. The defendants had entered into an equipment lease contract with Cleveland-based
American Financial Resources, who assigned the contract to the plaintiff, Copelco Capital, a New
Jersey company, on the same day that it was entered into.
Id. at *1. The defendants defaulted on
No. 05-3584 Preferred Capital, Inc. v. Associates in Urology Page 5
the lease agreement, which included a forum selection clause that did not identify a particular
jurisdiction but merely indicated that disputes over the contract, if assigned, would be “interpreted
construed and enforced in accordance with the laws and public policies of the State of incorporation
of the assignee,” and that the defendant “consents to personal jurisdiction and venue in either the
United States District Court or appropriate State court in the state of assignee’s corporate
headquarters.”
Id.
The plaintiff filed suit in New Jersey state court, and ultimately obtained a foreign judgment
against the defendants.
Id. The defendants then filed a motion for relief pursuant to Civ. R. 60(B)
in Ohio state court, seeking relief from judgment, which was denied by the trial court.
Id. at *2. On
appeal, the Copelco court vacated the trial court judgment and refused to uphold the forum selection
clause, finding that the clause was invalid because the defendants “were not sophisticated
commercial entities engaged in business for profit, but rather [were] a local church and its reverend.”
Id. at *4. In so holding, the Copelco court recognized that assignees, pursuant to their contracts with
assignors, are “vested with the rights and remedies available to the assignor,” but found that “under
the particular circumstances” of that case, enforcement of the forum selection clause would be
unreasonable.
Id. (distinguishing Kennecorp on the grounds that the forum selection clause at issue
failed to specify the jurisdiction of a particular court; and because defendants would not expect to
be hauled into court in New Jersey since both it and the assignor were based in Ohio).
While the court’s reasoning in Copelco is persuasive, we are of the opinion that the situation
in Copelco is easily distinguishable from the present circumstances, and that the district court
improperly relied upon Copelco in holding the forum selection clause invalid. Copelco does not
control here because this case involves two commercial entities involved in for-profit businesses.
Unlike the defendant in Copelco, this Defendant is not an unsophisticated church and its reverend.
Rather, Defendant is a business organization that contracted to receive services from another
business organization. The contract clearly stated that assignment was a possibility, and that in the
event of assignment, any disputes would be governed by the laws of the state of incorporation of the
assignee. Even the Copelco court recognized that under different circumstances, assignees are
vested with the same rights and remedies that are available to the assignor. Id. at *4. Assignees like
Plaintiff have the right to the benefit of their bargain unless it would be unreasonable or unjust to
enforce the terms of the agreement, and we do not believe that it would be so here.
Defendant is a commercial entity, and should have realized the implications of agreeing to
the inclusion of a forum selection clause that did not identify an assignee or specified jurisdiction.
Having failed to object to the terms of the forum selection clause, Defendant now claims that it is
disadvantageous for it to have to litigate this case in Ohio. While Defendant may be dissatisfied
with the litigation forum, it is not our task to save Defendant from the consequences of an agreement
it freely entered into.
We also do not agree with the contention of the district court and Defendant that Defendant
had no notice that it could face litigation in Ohio. Not only did Defendant expressly agree to submit
to jurisdiction anywhere in the country, including Ohio, Defendant was also given written notice of
the assignments on May 11, 2004, the day after the agreements were executed. The letters providing
notice identified Plaintiff as the assignee and listed Plaintiff’s business address as Brecksville, Ohio.
Given the terms of the forum selection clause in the agreements that Defendant signed, Defendant
was indeed on notice practically from the inception of the agreements that any disputes would be
litigated in Ohio, where the offices of Plaintiff-assignee are located.
Although a forum selection clause is not always voidable or unenforceable simply on
grounds of inconvenience, the argument of lack of convenience in the instant case strains credulity.
It is difficult to comprehend Defendant’s contention that the distance between Ohio and
Pennsylvania would deprive Defendant of its day in court. Ohio and Pennsylvania are neighboring
No. 05-3584 Preferred Capital, Inc. v. Associates in Urology Page 6
states, and while Defendant may have to travel a few hours, it cannot be said to be “manifestly and
gravely inconvenient” for Defendant to have to defend this case in Ohio.
Having found no evidence that enforcement of the forum selection clause would be
unreasonable or unjust, we hold that the forum selection clause is valid and enforceable.
IV.
For the foregoing reasons, we REVERSE the district court’s grant of Defendant’s motion
to dismiss, and REMAND this case for further proceedings consistent with this Opinion.
