MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Introduction

Before the Court are Defendant's Motion to Dismiss and Transfer Case (Doc. 4), all accompanying briefs, Magistrate Judge Blewitt's Report & Recommendation ("R & R") (Doc. 15), Defendant's Objections (Doc. 16), Plaintiff's Brief in Opposition to Defendant's Objections (Doc. 17), and Defendant's Reply Brief (Doc. 18). For the reasons set forth below, the Court will adopt Judge Blewitt's R & R, grant Defendant's Motion to Dismiss Plaintiffs negligence claim, and deny Defendant's Motion to Transfer Case under 28 U.S.C. § 1404(a).

II. Factual Allegations and Procedural History

Given Judge Blewitt's extensive recitation of Plaintiffs factual allegations and the case's procedural history, it is unnecessary to repeat them here, so the Court will provide only a brief background of the case.

In January 2011, Plaintiff informed its insurer of water damage to its business property, including Luxel equipment purchased from Defendant. ("Compl." ¶¶ 3-4). Defendant had serviced the equipment since Plaintiffs purchase. (Id. at ¶¶ 6-7). On this particular occasion, Plaintiff hired Defendant to inspect the equipment, and Defendant charged Plaintiff $1,590 for the inspection and its opinion on whether it should be repaired or replaced. (Id. at ¶ 8). Plaintiffs insurer felt the equipment could be repaired while Defendant's representative believed it had to be replaced. (Id. at ¶¶ 10, 13-14, 17). Because of the differences of opinion, the equipment was neither repaired nor replaced, and Plaintiff went out of business due to its inability to operate. (Id. at ¶ 21). However, after Plaintiff closed its doors, Defendant's representative changed his opinion and said he was "uncertain" as to whether the equipment could be repaired. (Id. at ¶ 23). He never informed Plaintiff about his change in position. (Id. at ¶ 24).

Plaintiff filed a Complaint against Defendant in the Court of Common Pleas in Luzerne County for negligence in failing to provide Plaintiff with an accurate opinion and failing to inform Plaintiff about Defendant's changed opinion. Plaintiff also sued Defendant for breach of contract for failing to provide a fair and objective evaluation when it inspected Plaintiffs equipment. After removing the case to federal court, Defendant moved to dismiss Plaintiffs negligence claim and moved to transfer the case to the Southern District of New York. The parties have fully briefed Defendant's motions, and the matters are now ripe for disposition.

III. Standard of Review

A district court may "designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition" of certain matters pending before the court. 28 U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's Report & Recommendation, the District Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. at § 636(b)(1); see also Brown v. Astrue, 649 F.3d 193, 195 (3d Cir.2011); Local Rule of the Middle District of Pennsylvania 72.3.

A complaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "[W]hen presented with a motion to dismiss for failure to state a claim, ... [the] Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009). The "Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a `plausible claim for relief.'" Id. at 211.

District courts confronted by a motion to dismiss should engage in a two-step analysis. First, the district court should accept all well-pleaded facts as true, but may reject mere legal conclusions. Second, the district court should then determine whether the facts as asserted, establish a "plausible claim for relief." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Thus, a complaint must "show" an entitlement for relief with facts, as a mere allegation that a plaintiff is entitled to relief is insufficient to withstand a motion to dismiss. See Phillips v. Co. of Allegheny, 515 F.3d 224, 234-35 (3d Cir.2008). As the Supreme Court noted in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not show[n] — that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1949. This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.; see also Fowler, 578 F.3d at 210-11.

IV. Analysis

a. Motion to Dismiss Plaintiffs Negligence Claim

Plaintiff alleges that Defendant was negligent when its agent failed to inform Plaintiff of his changed opinion regarding whether the Luxel equipment could be repaired. Judge Blewitt recommended dismissing Plaintiffs negligence claim against Defendant under both New York and Pennsylvania law, because the alleged negligence stemmed from Defendant's contractual obligations to Plaintiff and not any independent duty sounding in tort.

Plaintiff did not object to Judge Blewitt's recommendation, and in its Brief in Opposition to Defendant's Objections, Plaintiff indicated it did not object to having its negligence count dismissed. (Doc. 17, at 2, n. 1). Having reviewed the R & R for clear error or manifest injustice, the undersigned agrees with Judge Blewitt's analysis and will adopt his recommendation by dismissing Plaintiffs negligence claim against Defendant.

b. Motion to Transfer Case

Judge Blewitt recommended denying Defendant's motion to transfer case, and Defendant filed timely objections. Therefore, the Court will review Judge Blewitt's recommendations under a de novo standard.

28 U.S.C. § 1404(a) provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." Federal district courts have broad discretion "to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (internal quotation marks omitted). The Third Circuit has held that federal law controls on "questions of venue and the enforcement of forum selection clauses [because they] are essentially procedural, rather than substantive, in nature." Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995). The burden of showing the need for a transfer is on the moving party. Id. at 879.

When two parties have mutually agreed to a forum selection clause it is presumed to be valid, and it is thus

M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (the party seeking to escape the contract must "carry [a] heavy burden."). A plaintiff may also meets its burden by showing the forum selection clause was procured through "fraud or overreaching" or that its enforcement would run counter to a strong public policy of the forum where the lawsuit was brought. Id. at 15, 92 S.Ct. 1907. Plaintiff does not contend that Defendant engaged in fraud, that enforcing the forum selection clause would run counter to public policy, or that transferring the case to the Southern District of New York would be so difficult that it would essentially be deprived of its day in court. Rather, Plaintiff argues that the forum selection clause is invalid because it never manifested assent to the Terms and Conditions referred to in the invoice.

Following Defendant's inspection of Plaintiffs Luxel equipment in January 2011, Defendant sent an invoice to Plaintiff dated February 24, 2011. (Doc. 1, at 17). The bottom of the invoice said; "This invoice incorporates and is subject to the applicable Terms and Conditions of Sale located at www.fujifllmusa.com/termsand conditions/." (Id.). The final paragraph of the Terms and Conditions of Sale states:

Defendant has submitted evidence that Plaintiffs agent received the invoice, initialed the bottom, and remitted a check in full payment of the invoice ten months after receipt, thereby manifesting consent to the Terms and Conditions of Sale and, therefore, the forum selection clause. (Doc. 10, Ex. A). Plaintiff does not dispute that it paid the invoice, but it disputes the legal effect of the tender of payment.

Defendant cites to three cases in support of its argument that whether or not Plaintiff was aware of the Terms and Conditions, by paying the invoice, it bound itself to the terms referenced in the invoice. See Schwartz v. Comcast Corp., 256 Fed.Appx. 515, 520 (3d Cir.2007) (holding that a subscription agreement located on the provider's website was binding, regardless of whether the customer was aware of the terms contained in the agreement and rejecting the customer's argument that the "contract was too difficult to find" because the agreement was "available to all ... subscribers via its website. Under Pennsylvania law, failure to read a contract does not excuse a party from being bound by its terms."); Pentecostal Temple Church v. Streaming Faith, LLC, Civil Action No. 08-554, 2008 WL 4279842, at *5 (W.D.Pa. Sept. 16, 2008) (relying on Schwartz, rejecting "Plaintiff's assertions that the clause should be disregarded because the Purchase Order incorporated terms and conditions only available on the Defendants' website, and not provided in hard-copy to the Plaintiff" because the "Third Circuit has recently held that a customer on notice of contract terms available on the internet website is bound by those terms."); Feldman v. Google, Inc., 513 F.Supp.2d 229, 237 (E.D.Pa.2007) (finding reasonable notice of and mutual assent to the terms contained in the Ad Works contract because "the user here had to ... click the `Yes, I agree to the above terms and conditions' button in order to proceed to the next step.... If the user did not agree to all of the terms, he could not have activated his account, ...").

The Court finds that the forum selection clauses at issue in Schwartz, Pentecostal, and Feldman were negotiated before or at the time the contracts were created and the customer signed an agreement or clicked on a button to manifest assent expressly. Not so here. Here, Plaintiff hired Defendant for an inspection, thereby creating an unwritten contract between the parties that Plaintiff would pay for Defendant's services. (See R & R, at 637-38) (concluding that under both Pennsylvania and New York law, the parties entered a contract by conduct when Plaintiff accepted Defendant's rendering of services). After the creation of the contract, the undisputed facts indicate Defendant sent an invoice unilaterally attempting to alter the terms of the contract by adding a forum selection clause.

Defendant cites to cases which indicate that Plaintiff subsequently assented to the additional terms when it paid the invoice and its agent initialed the invoice. See Jordan Acquisitions Group LLC v. Adam Technologies, Inc., Civ. Action No. 09-542, 2009 WL 2473987, at *5-6 (W.D.Pa. Aug. 12, 2009) (citing Wilson of Wallingford, Inc. v. Reliable Data Systems, Inc., No. 95-6686, 1995 WL 734232 (E.D.Pa. Dec. 5, 1995)) (citing Marek v. Marpan Two, Inc., 817 F.2d 242, 247 (3d Cir.1987) (holding that as long as the terms and conditions were reasonably communicative, "[t]he [plaintiff] who omits to read takes the risk of the omission.")).

In Jordan, the Terms and Conditions were printed on the reverse side of the invoices issued to the plaintiff by the defendant after the plaintiffs purchase of allegedly defective chip carriers. Section 11(a) of Terms and Conditions provided for the resolution of all cases arising out of the transaction in the state or federal court located in the Commonwealth of Massachusetts. The plaintiff there set forth the same arguments that Oak Street advances: the terms were "inconspicuous having been set forth in boilerplate" and Oak Street "did not knowingly or voluntarily consent to the jurisdiction of a [New York] court." Id. at *5. However, the court was unpersuaded and found that the plaintiff had not met its heavy burden of proving the invalidity of the forum selection clause. In contrast, Plaintiff relies heavily on Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir.2002) in which then-Judge Sotomayor wrote for the Second Circuit: "Reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility." Id. at 35. Unlike the court in Jordan, this Court doubts whether the forum selection clause at issue was reasonably conspicuous and also finds that whether Plaintiff manifested assent to the Terms and Conditions is ambiguous.

It is well-settled that a valid forum selection clause is a "significant factor" to be considered when determining whether a transfer is appropriate. See Stewart Org., Inc., 487 U.S. at 29, 108 S.Ct. 2239. Further, if the Court finds that Plaintiff freely contracted to a forum selection clause, then the Court should not defer to a plaintiffs choice of forum. See Jumara, 55 F.3d at 880. Because, however, the Court concludes whether Plaintiff unambiguously manifested assent to the forum selection clause is unclear based on the factual allegations asserted by the parties thus far, it cannot yet find that the forum selection clause was valid.1 And because the validity of the forum selection clause is in doubt, Defendant's preferred forum and choice of law (New York) are not controlling. As such, for the time being, Pennsylvania law will govern in this case.

With these preliminary conclusions in mind, the Court agrees with Judge Blewitt that at this time, the forum selection clause should not be a significant factor in the Jumara analysis and that Plaintiffs choice of forum should not be disturbed lightly. Judge Blewitt examined the remaining factors that the Jumara court identified as important in a transfer analysis; where the claim arose; the relative convenience to the parties as indicated by their respective physical and financial conditions; the location of witnesses, books and records, to the extent that the witnesses, books, or records may actually be unavailable for trial in one forum; the enforceability of the judgment; practical considerations that could make the trial easier, more expeditious, or less expensive; the relative court congestion in the competing courts; and the interest in deciding local controversies at home, the public policies of the fora, and the familiarity of the trial judge with the applicable law. Id. at 882-83.

Defendant takes issue with two of Judge Blewitt's conclusions in particular: (1) his observation that Plaintiff went out of business "because it was forced to close its doors as a result of events from which these claims arise" (R & R, at 638), and (2) his legal conclusion that Plaintiffs payment on the invoice was more likely intended as a means of meeting its initial contractual obligation to pay for services rendered, rather than as an indication of assent to the additional terms contained in the invoice. (R & R, at 638).

The Court agrees with Defendant insofar as Judge Blewitt made findings of fact that have not been stipulated to by the parties or proven by evidence. However, these arguments cut against Defendant because these are only some of the facts in dispute which the Court must resolve before it can grant Defendant's motion in its favor, most significantly, whether Plaintiffs agent's initialing of the invoice manifested assent to the Terms and Conditions referenced therein. Also, for the purposes of this motion, it is not necessary for the Court to decide whose "fault" it is that Plaintiff is no longer in business. In light of Defendant's stipulation that Plaintiff is no longer operational (Doc. 16, at 8), at the moment, the Court finds that it would be more convenient for Plaintiff to have the case decided in the Middle District of Pennsylvania, its choice of forum. Defendant presumably has far greater resources to travel here than Plaintiff would to travel to the Southern District of New York.

Finally, Defendant objects to Judge Blewitt's conclusions regarding the remaining factors of the Jumara analysis. To the extent that the parties dispute the location of witnesses, documents, or evidence and whether non-party witnesses will be unavailable at trial, the Court will reiterate that these types of factual disputes preclude the Court from granting Defendant's motion. The burden of proving the need for a transfer is on the moving party, and because of the facts in dispute, Defendant has not met its burden. See Jumara, 55 F.3d at 879.

V. Conclusion

For the foregoing reasons, the Court will adopt Judge Blewitt's R & R. The Court will grant Defendant's Motion to Dismiss Plaintiffs negligence claim but will deny Defendant's Motion to Transfer Case without prejudice. Once a fully developed record has been presented to the Court that would allow it to evaluate fully the criteria set forth in Jumara, Defendant may renew its motion. A separate Order follows.

ORDER

AND NOW, TO WIT, THIS 17TH DAY OF SEPTEMBER, 2012, upon consideration of Defendant's Motion to Dismiss and Transfer Case (Doc. 4), all accompanying briefs, Magistrate Judge Blewitt's Report & Recommendation ("R & R") (Doc. 15), Defendant's Objections (Doc. 16), Plaintiffs Brief in Opposition to Defendant's Objections (Doc. 17), and Defendant's Reply Brief (Doc. 18), IT IS HEREBY ORDERED THAT:

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, United States Magistrate Judge.

I. PROCEDURAL BACKGROUND

On December 19, 2011, Plaintiff Oak Street Printery, LLC, d/b/a/ Global Print & Design filed a Complaint against Defendant Fujifilm North America Corp in the Court of Common Pleas of Luzerne County, Pennsylvania, which was docketed as No. 15600-Civil-2011. (Doc. 1, p. 7). In the Complaint, Plaintiff asserts that it is "a duly organized Pennsylvania S-corporation" with a principal address in Old Forge, Pennsylvania. (Id.). Plaintiff further asserts that Defendant is "a duly organized business entity authorized to sell printing equipment and equipment services in Pennsylvania, with an office address [in] Edison, [New Jersey]." (Id.).

Defendant asserts that on December 27, 2011, it received a copy of Plaintiff's Complaint via certified mail. (Id.).

On January 17, 2012, Defendant removed this suit from the Court of Common Pleas of Luzerne County, Pennsylvania, to the United States District Court for the Middle District of Pennsylvania. (Doc. 1, p. 1). In its Notice of Removal, Defendant asserts that Plaintiff is "a citizen of Pennsylvania," as Plaintiff submitted in its Complaint. (Doc. 1, p. 1 (citing Compl. at ¶ 1)). However, Defendant also submits that it is not incorporated in Pennsylvania nor is its principal place of business in Pennsylvania; thus, Defendant "is not a citizen of Pennsylvania." (Doc. 1, p. 1). Defendant also asserts that while the Complaint "does not allege the specific amount of monetary damages sought," the amount in controversy exceeds $75,000 because Plaintiff "seeks to recover actual and consequential damages including but not limited to loss of business income as well as loss of future business income and earning capacity." (Doc. 1, p. 2 (citing Comp. at ¶¶ 21, 28, 35)). Thus, Defendant maintains that this federal Court has jurisdiction pursuant to 28 U.S.C. § 1332(a) and that, because Defendant filed its Notice of Removal within thirty (30) days of its receipt of Plaintiffs Complaint, this action is removable to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. (Doc. 1, p. 2).1

On January 24, 2012, Defendant filed a Motion to Dismiss/Transfer requesting that this Court transfer this action to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1404(a) as well as dismiss "Count I" (Negligence) of the Complaint. (Doc. 4, pp. 1, 2). Defendant asserts that Plaintiff filed this action "contrary to an enforceable forum selection clause"; thus, Defendant maintains that this case should be transferred to the Southern District of New York, the forum referenced in the forum selection clause. (Doc. 4, p. 2).2 Defendant also requests that this Court dismiss with prejudice Plaintiff's negligence claim against Defendant pursuant to Federal Rule of Civil Procedure 12(b)(6). (Id.).3

On February 7, 2012, Defendant filed a Brief in Support of Defendant's Motion to Dismiss/Transfer. (Doc. 5). With its Brief, Defendant also filed a Declaration of Vincent N. Avallone, Defendant's attorney, attached to three unpublished opinions pursuant to Local Rule 7.8(a), which states that "[a] copy of any unpublished opinion which is cited must accompany the brief as an attachment." (Doc. 5-1).

On February 10, 2012, Plaintiff filed a Brief in Opposition to Defendant's Motion to Dismiss/Transfer (Doc. 6) along with an Affidavit of David J. Selingo, Plaintiff's attorney, which asserts that Mr. Selingo personally accessed the terms and conditions section of the fuji film website. (Doc. 6-1, p. 1). Attached to Plaintiffs Brief and Affidavit are four exhibits to demonstrate how to access Defendant's Terms and Conditions of Sale on the website referenced. (Doc. 6-1, pp. 3-15). Also on February 10, 2012, Plaintiff filed a Response to Defendant's Motion to Dismiss/Transfer admitting and denying Defendant's various factual assertions. (Doc. 7).

On February 24, 2012, Defendant filed a Reply Brief in Further Support of Defendant's Motion to Dismiss/Transfer. (Doc. 10). With its Reply Brief, Defendant also filed a Reply Declaration of Wayne Heading, Defendant's Director of Accounting, with one exhibit. (Doc. 10-1). Defendant additionally filed a Reply Declaration of Vincent N. Avallone with two unpublished opinions as exhibits, pursuant to Local Rule 7.8(a).4

On April 3, 2012, District Judge Mariani ordered that Defendant's Motion to Dismiss Transfer be referred to the undersigned for a Report and Recommendation. (Doc. 14).

II. FACTUAL BACKGROUND

The Complaint asserts that on January 24, 2011, Plaintiff Global Print found water damages to its property on Oak Street in Old Forge, Pennsylvania, after a water pipe burst. (Doc. 1, pp. 7, 8). Because of the water pipe bursting, damage resulted to the building as well as multiple supplies, furniture, and equipment. (Doc. 1, p. 8). Plaintiff then notified its insurance carrier, State Auto Insurance Companies ("State Auto"), that there was a potential claim and "began the process of cleanup and remediation." (Id.).

Plaintiff alleges that it found standing water on its Dart Luxel T6000CTP (Model PTRT40000 recording unit) and Luxel T6000CTP II Single Auto Loader ("Luxel Equipment") and was "concerned as to whether it suffered any water damage." (Id.). Before January 24, 2011, Plaintiff claims that it employed Defendant to "service and upgrade [its] Luxel Equipment," as it purchased the equipment from Defendant, "through an independent supplier." (Id.).

Plaintiff asserts that it "was under the impression" that Defendant manufactured the Luxel Equipment, and, as a result, Plaintiff engaged Defendant to inspect the equipment after the discovery of standing water. (Id.). Plaintiff avers that Defendant charged $1,590.00 for the inspection and opinion "on repair versus replacement." (Id.). The invoice is dated February 24, 2011. (Doc. 1, p. 16; Doc. 5, p. 2).5

On January 28, 2011, the Luxel Equipment was inspected by: Heather Shive ("Shive"), State Auto's claim handler; Roy Winter ("Winter"), a representative from LWG Consulting ("LWG"); and Dan Coon ("Coon"), a representative from Defendant. (Id.). After this inspection, LWG, an engineering firm hired by State Auto, "advised that the Luxel Equipment was repairable with disassembly, cleaning and reassembly" and that "the repair/cleaning process would take several days, at the end of which Global Print would have a fully functioning piece of equipment." (Doc. 1, p. 9; Doc. 6, p. 2).

In an e-mail dated January 31, 2011, Coon suggested that while "everything worked" during the inspection on January 28, "water was discovered when the `path went down the drum.'" (Doc. 1, p. 9). Coon recommended that the Luxel Equipment be "cleaned, decontaminated and restored." (Id.).

In a response to the e-mail referenced above, the Regional Support Manager for Defendant, Mike Wilson ("Wilson"), sent a reply e-mail to Coon also on January 31, 2011, that read: "Do NOT do any additional work on this unit now. We have had problems with water damaged equipment in the past and have not been successful in restoring it to operational condition. We will discuss this week and then make a decision if we will work on it." (Id.). Wilson sent another e-mail dated February 7, 2011, to LWG and State Auto that stated:

(Id.) (alterations in Compl.).

As Defendant's representative, Wilson "advised both LWG and State Auto that the Luxel Equipment was recommended as a total loss and should be replaced." (Id.).

Defendant suggested replacing the Luxel Equipment for approximately $122,000.00; however, State Auto, relying on LWG's opinion, pushed for the "disassembly, cleaning and reassembly" of the equipment for $33,716.00. (Id. at 10). Plaintiff claims that it relied upon Wilson's opinion as "its contracted expert" to advise "on repair versus replacement" and, as such, "refused to agree to the work proposed by LWG." (Id.). Because LWG required Defendant's services to ensure proper calibration of the equipment after it was reassembled, further delay resulted, as Defendant "refused to participate." (Id.).

Eventually, Plaintiff asserts, Defendant "demanded a Hold Harmless Agreement relative to the disassembly, cleaning and reassembly of the Luxel Equipment due to [Defendant's] continued opinion that the Luxel Equipment could not be repaired." (Id.). State Auto employed counsel to draft a Hold Harmless Agreement ("HHA"), which was prepared to be signed by Plaintiff, Defendant, LWG, and State Auto. (Id.). The HHA included the following:

(Id.).

On February 15, 2011, State Auto forwarded the HHA to all of the parties involved, requesting that everyone execute the HHA before repairs began on the Luxel Equipment. (Id.). Plaintiff asserts that Defendant never signed the HHA. (Id.).

Plaintiff also refused to sign the HHA after counsel so advised because the agreement was "an extra contractual requirement, outside of the scope of its insurance policy with State Auto" and because of Defendant's "continued opinion that the Luxel Equipment could not be restored and was required to be replaced." (Id. at 11).

Plaintiff claims that after eight months of being unable to operate its business "due to the difference of opinion over the repair versus replacement of the Luxel Equipment," it "closed its doors for good on September 1, 2011." (Id.). Plaintiff asserts that Global Print was "the primary source of income" for its principals, Charles Burke ("Burke") and Linda Solt. (Id.).

On November 28, 2011, Wilson testified under oath that his opinion that the Luxel Equipment was not repairable had changed and that he had since become "uncertain as to whether the Luxel Equipment [could] be cleaned, restored and repaired following water intrusion." (Id.). Wilson also testified that he never informed Plaintiff of his changed opinion, "despite the fact that Global Print had hired Fuji for its expert analysis and opinion and the fact that Global Print was relying on [his] opinion that the Luxel Equipment needed to be replaced." (Id.).

On February 24, 2011, twenty-seven days after the representatives from Defendant, State Auto, and LWG inspected Plaintiff's Luxel Equipment, Defendant sent its invoice for the inspection to Plaintiff. (Doc. 6, p. 3; Doc. 1, p. 16). Plaintiff asserts that [a]t the bottom of this invoice, in small print, a reference is made to the incorporation of Terms and Conditions of Sale that can be found at www.fujifilmusa. com/termsandconditions/. (Doc. 6, p. 3). Plaintiff maintains that the invoice did not indicate a spot for a signature "or any other form of positive indicia" that would have allowed it to assent to the Terms and Conditions of Sale. (Id.).

Plaintiff alleges that when the aforementioned Internet address is accessed, the user must choose between `Terms and Conditions of Sale' or `Terms and Conditions of Purchase.' (Id.). If Terms and Conditions of Sale is chosen, the user must then choose between twelve Fuji companies. (Id. at 3-4). If the user chooses the Defendant-corporation, Fujifilm North America, from the list, he or she must then choose "between two time periods." (Id. at 4). Plaintiff submits: "[o]nly if the correct time period is chosen does the customer finally get to the Terms and Conditions of Sale relied upon by Fuji here to for the forum selection clause." (Id.).

Defendant asserts that on December 14, 2011, Burke, a principal of Plaintiff Global Print remitted payment in the form of check to Defendant. (Doc. 10, pp. 1, 2). Defendant's exhibit to its Reply Brief (Doc. 10-1, p. 5) is allegedly a copy of this check made out for $1,590.00 and shows that the phrase "Doc No. 901089587," the document number on the invoice, is written in the memo section of the check. (See Doc. 10, p. 2). Defendant avers that with this check, there was also enclosed a copy of page two of the invoice in question that was "initialed `CFB' and marked `Paid, Ck # 349' immediately above the language containing the Terms and Conditions website address." (Id.; Doc. 10-1, p. 4).

III. ALLEGATIONS OF COMPLAINT

Plaintiff makes two claims in its Complaint against Defendant: (1) that Defendant was negligent causing Plaintiff to suffer loss of income; and (2) that Defendant breached its contract with Plaintiff. (Id. at 12-13).

Plaintiff asserts that Defendant "had a duty, established by contract, to provide [ ] an accurate opinion concerning repair versus replacement of the Luxel Equipment" and that Defendant breached that duty when it neglected to inform Plaintiff of its changed opinion favoring repair over replacement before Plaintiff closed its business operations (Id. at 12). Plaintiff avers that "[a]s a direct and proximate result of Defendant's [ ] careless and negligence conduct, [Plaintiff] suffered a loss of business income and future business income/earning capacity." (Id.).

As relief on its negligence claim, Plaintiff requests judgment against Defendant "in an amount in excess of the mandatory arbitration limits of Luzerne County, together with costs and interest and all other relief this Court deems just and proper." (Id.).

Plaintiff additionally asserts that Defendant failed to provide "a fair, objective evaluation and investigation" of Plaintiffs Luxel Equipment, and, thus, Defendant "breached its contractual obligations" to Plaintiff because Defendant "placed it own financial interest" before Plaintiffs in trying to effectuate a sale of new equipment. (Id. at 13). Plaintiff avers that it has performed all of its own obligations under the contract at issue, "including, but not limited to, all conditions precedent and all conditions subsequent." (Id.). Plaintiff claims that Defendant, "through its agents, servants, employees and representatives," was negligent in its conduct, which caused Plaintiff to suffer "substantial financial loss." (Id.). Plaintiff further maintains that it will continue to suffer pecuniary loss "[a]s a direct and proximate result of Defendant's [ ] misconduct." (Id.).

Plaintiff submits that Defendant breached its contractual obligations to Plaintiff by: (1) "failing to honor the terms of the contract it entered into with Global Print"; and (2) "failing to complete its obligations under the contract." (Id.).

As relief on its breach of contract claim, Plaintiff request judgment against Defendant and actual and consequential damages "in an amount in excess of the mandatory arbitration limits of Lackawanna County, together with costs, interest and attorneys fees and all other relief this Court deems just and proper." (Id. at 13-14).

IV. MOTION TO TRANSFER STANDARD

A court may transfer any civil action for the convenience of the parties or witnesses, or in the interests of justice, to any district where the action might have been brought. 28 U.S.C. § 1404(a). Title 28 U.S.C. § 1391(b) provides that:

See also Kwok Sze v. Pui-Ling Pang, Civil Action No. 1:CV-12-0619, 2012 WL 2061456, at *8 (M.D.Pa. Apr. 25, 2012) (citing Vangura Kitchen Tops, Inc. v. C & C North America, Inc., 2008 WL 4540186, at *3 (W.D.Pa. Oct. 7, 2008); Eppard v. Certergy Payment Recovery Services, Inc., Civil No. 09-1414, M.D. Pa., 2-23-10 Memorandum).

This Court has stated:

Kwok Sze, 2012 WL 2061456, at *8 (quoting Hankins v. Beard, Civil No. 3:CV-06-2372, 2008 WL 2950996, at *10 (M.D.Pa. July 29, 2008)).

This Court has further held:

Kwok Sze, 2012 WL 2061456, at *8-9 (quoting Brown v. Maue, No. Civ. 1:CV-04-2646, 2005 WL 1420776, at *1 (M.D.Pa. June 15, 2005)) (second alteration in original).

Federal courts within the Third Circuit have held that burden of proving the need for a transfer is on the moving party. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.1995). After determining whether the action could have been brought in the proposed district for transfer, this Court then considers the following non-exhaustive list of factors in evaluating whether to transfer the case:

Brown, 2005 WL 1420776, at *2 (citing Jumara, 55 F.3d at 879-80).

However, the movant "is not required to show truly compelling circumstances for ... change ... [of venue, but rather that] all relevant things considered, the case would be better off transferred to another district." Brown, 2005 WL 1420776, at *2 (alteration in original) (quoting In re United States, 273 F.3d 380, 388 (3d Cir.2001) (internal quotation marks omitted)).

V. MOTION TO DISMISS STANDARD

In Reisinger v. Luzerne County, 712 F.Supp.2d 332, 343-344 (M.D.Pa.2010), this Court stated:

VI. DISCUSSION

A. Motion to Transfer

As stated, on January 24, 2012, Defendant filed a Motion to Transfer this action to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1404. (Doc. 4). On February 7, 2012, Defendant filed a Brief in Support of Defendant's Motion to Transfer. (Doc. 5).6 Defendant asserts that Plaintiff filed this suit "contrary to a forum selection clause," which requires any action resulting from the contract at issue to be brought in a "state or federal court located in Westchester County, New York." (Doc. 5, p. 1).

In its Brief in Support, the Defense maintains that "[t]he United States Supreme Court has endorsed the use of transfer pursuant to 28 U.S.C. § 1404(a) where, as here, a party seeks to enforce a forum selection clause. Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)." (Doc. 5, p. 7). Defendant asserts that the factors this Court should consider "include convenience to the parties and witness, as well as the interests of justice." (Doc. 5, p. 7) (citing Stewart, 487 U.S. at 29, 108 S.Ct. 2239).

Defendant's Brief further states that "[a] forum selection clause is a `significant factor' and a substantial consideration that `figures centrally' in the Court's assessment of the appropriateness of transfer." (Doc. 5, p. 7) (quoting Stewart, 487 U.S. at 29, 108 S.Ct. 2239) (citing Jumara, 55 F.3d at 879).7 The Defense avers that:

(Doc. 5, p. 8).8

Defendant claims that the party in opposition to the Motion to Transfer "bears a heavy burden" to demonstrate "not only that the balance of convenience is strongly in favor of another forum but also that resolution in the selected forum will be `so manifestly and gravely inconvenient' that it will be effectively deprived of its day in court." (Doc. 5, p. 8) (quoting and citing Zapata, 407 U.S. at 19, 92 S.Ct. 1907).

The Defense then submits the various "private and public `Jumara' factors" for the Court's consideration. (Doc. 5, p. 8) (citing Jumara, 55 F.3d at 879). Defendant alleges that the private factors include: (1) "the parties' preferences"; (2) "`the convenience of the parties as indicated by their relative physical and financial condition'"; (3) "the unavailability of witnesses for trial"; and, (4) "the situs of books and records." (Doc. 5, p. 8) (quoting and citing Jumara, 55 F.3d at 879). Defendant asserts that the respective public interests include: (1) "the enforceability of the judgment"; (2) "factors that could make the trial easier, more expeditious, or less expensive"; (3) "relative administrative difficulties pertaining to court congestion"; (4) "`the local interest in deciding local controversies at home'" (5) "the public policies of the fora"; and (6) "the familiarity of the trial judge with applicable state law in diversity cases." (Doc. 5, pp. 8-9) (quoting and citing Jumara, 55 F.3d at 879).

Defendant argues that the Terms and Conditions of Sale on the Internet address listed printed on the Invoice sent to Plaintiff designate that the forum of choice for suits brought against Fujifilm is federal or state court in Westchester County, New York. (Doc. 5, p. 9). The Defense then cites three opinions in support of transferring the case:

(Doc. 5, p. 9).

Defendant asserts that the forum selection clause should be given "significant weight" in determining whether to transfer this action and that proceeding in New York would not be "gravely unjust to plaintiff so as to deprive it of its day in court." (Id.).

Defendant concludes this Court should transfer the case at bar because the Jumara factors indicate so and because Plaintiff contractually agreed to Defendant's choice of venue in New York. (Id.). The Defense further argues that the conduct complained of is that of Defendant's business operations from New York, as Defendant is a New York corporation with a principal place of business in Vallhalla, New York. (Doc. 5, pp. 9-10, 10 n. 2) (citing Heady Decl. Def.'s Ex. A). Defendant additionally asserts that "[s]ome witnesses and records will be located in New York and those that are not can be made available there." (Doc. 5, p. 10).

The Defense submits that this federal Court has "no special local interest in adjudicating this matter" and that public policy would not be "adversely affected" as a result of a transfer. (Id.). Further, Defendant avers that a federal judge in the Southern District of New York would be familiar with the law applicable to this dispute and that "no administrative considerations [weigh] against transfer." (Id.). The Defense finds that because Plaintiff's business is no longer in operation, "[t]here is no compelling reason to conduct the litigation in Pennsylvania," even though the equipment at issue was once located at Plaintiff's location in Old Forge, Pennsylvania. (Id.).

In its Brief in Opposition to Defendant's Motion to Transfer, Plaintiff argues that under 28 U.S.C. § 1404(a), a federal district court may transfer a case to another venue where the action could have been brought originally "`for the convenience of parties and witnesses [and] in the interest of justice'" and that the burden of proving the necessity for a transfer is on the movant. (Doc. 6, p. 4) (quoting and citing Jumara, 55 F.3d at 879) (alteration in original). Plaintiff further asserts that "`a motion to transfer is not to be liberally granted'" and that "a plaintiff's choice of venue `should not be lightly disturbed.'" (Doc. 6, p. 4) (quoting and citing Stewart, 487 U.S. at 29, 108 S.Ct. 2239; Jumara, 55 F.3d at 878).

Plaintiff maintains that in this instance, this Court must initially decide whether the forum selection clause at issue is valid. (Doc. 6, pp. 4-5) (citing Jumara, 55 F.3d at 880).9 Plaintiff submits that, using a "public interest balancing test," this Court may still refuse to transfer this case even if the forum selection clause is determined to be valid. (Doc. 6, p. 5) (citing Stewart, 487 U.S. at 30-31, 108 S.Ct. 2239).10 Plaintiff argues that analyses of both the forum selection clause and of the public and private factors lend to the conclusion that this action should not be transferred. (Doc. 6, p. 5).

Plaintiff initially asserts that the forum selection clause referenced by Defendant is invalid, and that even the three cases to which Defendant cites on page nine of its Brief support that conclusion. (Id.). Plaintiff submits that Schwartz "involved the applicability of an arbitration provision contained in an on-line term of sale" but that Schwartz differs from the case at issue because the plaintiff in Schwartz physically signed a "work order containing language above the signature line that indicated that an on-line service agreement was binding." (Id.) (Schwartz v. Comcast Corp., 256 Fed.Appx. 515 (3d Cir.2007)). According to Plaintiff, the Third Circuit held that a customer is bound by certain terms available on a website when he or she "affirmatively acknowledges those terms by signing a document." (Doc. 6, p. 5).11

Plaintiff argues that because it does not sign a document referencing the Terms and Conditions of Sale on Defendant's website and because it did not receive the invoice until twenty-seven days after the inspection, the forum selection clause is invalid under Schwartz. (Doc. 6, p. 5).

Plaintiff further asserts that in another of Defendant's cited cases, Feldman, the District Court for the Eastern District of Pennsylvania held that a plaintiff challenging the validity of an online forum selection clause must prove that he or she had no reasonable notice of, and did not manifest assent to, the online agreement. (Doc. 6, p. 6) (citing 513 F.Supp.2d 229). In Feldman, Plaintiff submits that the District Court upheld the validity of a forum selection clause because the plaintiff-advertiser had to click a box online acknowledging agreement to the terms and conditions in order to proceed with publishing his advertisement, and, thus, by clicking this box, the plaintiff-advertiser assented to the term containing the forum selection clause. (Doc. 6, p. 6).12

Plaintiff maintains that, under Feldman, because Plaintiff was not notified of the Terms and Conditions of Sale until twenty-seven days after the inspection, it never manifested assent to the those terms that contained the forum selection clause. (Id.).

Plaintiff argues that in the last of Defendant's cited cases, Pentecostal Temple Church, the United States District Court for the Western District of Pennsylvania upheld a forum selection clause when the parties executed a purchase order, at the time the plaintiff placed its order, that "made reference to on-line General Terms and Conditions of Service which included a forum selection clause." (Id. at 7) (citing 2008 WL 4279842).13

Plaintiff submits that because the parties in this case never executed any type of agreement prior to, or at the time of, the inspection on January 28, 2011, it never "provided any indicia of assent to the Terms and Conditions of Sale," and, thus, the holding in Pentecostal Temple Church supports the conclusion that the forum selection clause at issue is invalid. (Doc. 6, p. 7).

Plaintiff asserts that other federal courts of appeals and district courts make similar conclusions to the ones submitted in Plaintiff's Brief in Opposition. (Id.). According to Plaintiff, in Specht v. Netscape Commc'n. Corp., 306 F.3d 17 (2d Cir.2002), former Second Circuit Judge Sonia Sotomayor utilized a two-tiered test to determine whether the plaintiffs had assented to an online term of sale: "(1) whether there was `reasonably conspicuous notice of the existence of contract terms'; and (2) `unambiguous manifestation of assent to those terms by consumers.'" (Doc. 6, pp. 7-8) (quoting 306 F.3d at 35). Plaintiff alleges that the Second Circuit held in Specht:

(Doc. 6, p. 8) (alteration omitted) (quoting 306 F.3d at 31).

Plaintiff applies Specht to its case by arguing that Plaintiff "did not have reasonably conspicuous notice of the existence of a forum selection clause when it agreed to have Fuji act as an expert on its behalf at the inspection on January 28, 2011," because Plaintiff did not receive notice of the Terms and Conditions of Sale until it received the invoice twenty-seven (27) days later. (Doc. 6, p. 8). Plaintiff additionally submits that it "never provided unambiguous manifestation of assent" to the terms that were referenced on the invoice. (Id.).

Plaintiff cites two more cases that it finds have also used the two-tiered analysis from Specht. See, E.J. Rogers, Inc. v. UPS, 338 F.Supp.2d 935 (S.D.Ind.2004); Affinity Internet, Inc. v. Consolidated Credit Counseling, 920 So.2d 1286 (FL Dist. Ct. of Appeals 2006) (document must be readily available and parties intent to be bound by on-line terms must be expressed). (Doc. 6, p. 8).14

Plaintiff then asserts that whether or not this Court finds the forum selection clause to be valid, we must evaluate whether this action should be transferred in the interest of justice. (Doc. 6, p. 9).

Plaintiff submits that Defendant has not put forth any argument regarding whether the venue requirements of 28 U.S.C. § 1391 support transferring this case to the Southern District of New York. (Doc. 6, p. 9). Plaintiff initially avers that the information available in the Complaint demonstrates only that Defendant has an office address in Edison, New Jersey, and that the invoice, attached as an exhibit to the Complaint, provides a remittance address in Pittsburgh, Pennsylvania. (Id. at 9-10, 10 n. 2). Plaintiff concludes that the Complaint does not indicate that Defendant is incorporated in New York and implies that we cannot find that venue would be proper in the Southern District of New York because the Complaint lacks such indication. (Id. at 10).15

Plaintiff then argues that even if the forum selection clause is valid and § 1391 is satisfied, Defendant's Motion to Transfer is still unsuccessful under the applicable balancing test. Plaintiff puts forth the following factors for this Court's consideration from Jumara, 55 F.3d at 879-80:

(Doc. 6, pp. 10-11) (citing 55 F.3d at 879-80).

Plaintiff then analyzes each of the factors listed above. (See Doc. 6, pp. 11-13).

Regarding the first Jumara factor, i.e., convenience and preferences of the parties, Plaintiff again makes the argument the forum selection clause is invalid, and thus should not be considered as an expression of Plaintiffs preferences, due to lack of notice and/or manifestation of intent to be bound. (Doc. 6, p. 11). Plaintiff submits that because the clause is invalid, Defendant bears the burden of demonstrating why Plaintiffs choice of forum in Pennsylvania should be rejected. (Id.) (citing Jumara, 55 F.3d at 878 (Plaintiffs choice of forum is not to be "lightly disturbed")). Plaintiff notes that even if this Court finds the forum selection clause to be valid, such a finding only weighs in as one of eight factors to be considered. (Doc. 6, p. 11 n. 5).

In its Reply Brief (Doc. 10), Defendant finds that:

(Doc. 10, p. 2).

Defendant further argues that when Plaintiff sent payment to Defendant via Burke on December 14, 2011, Plaintiff manifested its assent to Defendant's Terms and Conditions of Sale, including the forum selection clause, because the check referenced included the invoice, "without objection." (Id. at 3).

Defendant maintains that "[i]t is of no moment that Plaintiff apparently failed to read the forum selection clause before assenting to its terms," as such a clause does not require bargaining in order to be valid. (Id.) (citing Jordan Acquisitions Group LLC v. Adam Technologies, Inc., Civ. Action No. 09-542, 2009 WL 2473987, at *5-6 (W.D.Pa. Aug. 12, 2009)). Defendant concludes that the forum selection clause is enforceable regardless of whether Plaintiff read the Terms and Conditions of Sale referenced on the invoice prior to remitting payment. (Doc. 10, p. 4).

Defendant further responds to Plaintiff's Brief in Opposition by asserting that Plaintiff neglected the "significant weight to be afforded a forum selection clause," as it should be "treated as a manifestation of parties' preference as to a convenient forum." (Id.) (citing Jumara, 55 F.3d at 880). The Defense argues that a court's deference to a plaintiff's forum choice would be incorrect where that plaintiff "already contracted as to an appropriate forum." (Doc. 10, p. 4) (citing Jumara, 55 F.3d at 880). Defendant maintains that the forum selection clause results in a burden on Plaintiff to prove "why it should not be bound by its contractual obligation." (Doc. 10, p. 4) (citing Jumara, 55 F.3d at 880). Defendant alleges that Plaintiff failed to meet its burden because it was notified of the Terms and Conditions of Sale via the invoice and thereby manifested assent to the those Terms, which contained the forum selection clause. (Doc. 10, p. 4).

Plaintiff asserts that Defendant does not even address the second Jumara factor, i.e., convenience of witnesses, in its Brief in Support of its Motion to Transfer. (Doc. 6, p. 11). Plaintiff submits that it does not have knowledge of any witnesses relevant to this action who reside in New York, but that all of Plaintiff's potential witnesses from Global Print, a remediation company, and State Auto reside in Pennsylvania. (Id. at 11-12). Plaintiff continues to state that the relevant representatives from the Defendant-corporation, Wilson and Coon, are located in Georgia and New Jersey, respectively; thus, this factor "weighs heavily in favor of the current venue" in Pennsylvania. (Id. at 12).

Defendant finds Plaintiff's Brief in Opposition to make "sweeping statements about locations of non-party witnesses in Pennsylvania that are unsupported by any credible evidence" and prays that this Court ignore those statements. (Doc. 10, p. 5).16 Defendant concludes that this factor weighs in the Defense's favor because while it continues to operate business in New York, Plaintiff "admits that is no longer operates its business in Pennsylvania." (Id.).

With respect to the third Jumara factor, i.e., access to sources of proof, Plaintiff avers that the Luxel Equipment and all of Plaintiffs documents are located in Pennsylvania and, further, that Defendant sent its relevant documents to Pennsylvania as well. (Doc. 6, p. 12). Plaintiff offers that any remaining relevant documents would be easily transferrable to Pennsylvania. (Id.). Plaintiff additionally states that because the loss itself occurred in Pennsylvania, any site inspections must occur in Pennsylvania. (Id.). Plaintiff finds this factor to "weigh[ ] heavily in favor of retaining the current venue." (Id.).

The Defense, however, argues that this factor is virtually neutral in this analysis because "documents can be transferred to New York just as easily as they can be transferred to Pennsylvania." (Doc. 10, p. 5). Defendants finds that Plaintiff's unsupported assertion that the Luxel Equipment is currently in Pennsylvania "carries no evidentiary weight" but that the transferral of this action to a court in New York would not preclude inspecting the equipment in Pennsylvania during discovery. (Id.).

Regarding the fourth and fifth Jumara factors, i.e., practical considerations and relative calendar congestion, Plaintiff offers that it is not aware of any crucial facts that would weigh on one side of the other. (Doc. 6, p. 12).

While agreeing with Plaintiff on its conclusion regarding the fifth factor, Defendant finds the fourth factor, i.e., practical considerations, to weigh in the Defense's favor because proceeding in New York will result in "less disruption to its business with its witnesses appearing for depositions at or near its principal place of business." (Doc. 10, pp. 5-6). Defendant concludes that this same reasoning is inapplicable to Plaintiff because Plaintiff no longer operates business in Pennsylvania. (Id. at 6).

Plaintiff finds the sixth Jumara factor, i.e., interests of local courts in deciding local issues, to also oppose transferring this action because all relevant events took place in Northeastern Pennsylvania, which is encompassed by the federal Middle District of Pennsylvania. (Doc. 6, p. 13).

Defendant asserts that a court in New York would have interest in presiding over this case because, while Plaintiff no longer operates business in Pennsylvania, Defendant continues to operate business in New York. (Doc. 10, p. 6).

Plaintiff submits that the seventh Jumara factor, i.e., enforceability of judgment, is insignificant, as it is "not aware of any difference between the two venues relative to enforceability of a judgment." (Doc. 6, p. 13). Defendant similarly concedes. (Doc. 10, p. 6).

Under the last Jumara factor, i.e., familiarity of the trial judge with applicable law, Plaintiff argues that Pennsylvania law should apply to this controversy because Defendant's forum selection and choice-of-law clauses are invalid, and, thus, this suit should be heard by a Federal Judge in Pennsylvania, rather than in New York. (Doc. 6, p. 13).

The Defense asserts that Plaintiff makes a "circular argument that Pennsylvania law will apply because [Defendant's] choice of law clause set forth in the Terms and Conditions of Sale are [sic] unenforceable," again making the argument that Plaintiff manifested assent to Defendant's Terms and Conditions when payment was remitted. (Doc. 10, p. 6). Defendant adds further that the choice of law clause in the terms, which provides that New York law should govern this claim, should be weighed in determining the proper forum. (Id.) (citing Lieb v. American Pacific Int'l Inc., 489 F.Supp. 690, 697 (E.D.Pa.1980)). Defendant submits that "[i]t defies logic that Plaintiff would bring suit based upon an Invoice attached to its Complaint, but then be permitted to ignore terms that are incorporated therein." (Doc. 10, p. 6).

Plaintiff thereby concludes its arguments in opposition to Defendant's Motion to Transfer by finding that "Fuji has failed to meet its burden of overcoming Global Print's choice of forum [and] Fuji's Motion to Transfer must be denied." (Doc. 6, p. 13).

Defendant concludes its arguments regarding transfer in its Reply Brief differently: "Given the significant weight afforded to forum selection and choice of law clauses in a transfer analysis, and the balance of the remaining factors being neutral or in Fujifilm's favor, transfer to New York is appropriate." (Doc. 10, p. 7).

For the following reasons, we will recommend that this Court deny Defendant's Motion to Transfer to the Southern District of New York at this time.

When a federal court sitting in diversity examines a motion to transfer venue, "the effect to be given a contractual forum selection clause [ ] is determined by federal not state law ... [b]ecause `[q]uestions of venue and the enforcement of forum selection clauses are essentially procedural, rather than substantive, in nature.'" Jumara, 55 F.3d at 877 (last alteration in original) (quoting Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1991)). See also Stewart, 487 U.S. at 29, 108 S.Ct. 2239.

The Supreme Court has found that when there is a dispute between two American parties regarding a contractual forum, the party claiming that the contractual forum is unreasonable "should bear a heavy burden of proof' to demonstrate that the agreement was one of adhesion or that the parties did not contemplate the specific controversy at the time the agreement was executed, for example. Zapata, 407 U.S. at 17, 92 S.Ct. 1907. See also Money-Gram, 65 Fed.Appx. at 848; TradeComet.com LLC v. Google, Inc., 647 F.3d 472, 475-76 (2d Cir.2011); GWR Medical, Inc. v. Baez, Civil No. 07-1103, 2008 WL 698995, at *6 (E.D.Pa. Mar. 13, 2008) ("[T]he parties choice of venue clause is binding unless enforcement is unfair, unreasonable or unjust.").17

28 U.S.C. § 1404(a) provides: "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented."

To determine whether this action could have been brought originally in the United States District Court for the Southern District of New York, we must first determine whether venue would have been proper there. Under 28 U.S.C. § 1391(b), "[a] civil action may be brought in [ ] a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located." Section 1391(d) of the same chapter reads:

The Supreme Court held in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985):

We find that the District Court for the Southern District of New York would have been able to exercise personal jurisdiction over Defendant had Plaintiff filed the suit in that court originally because Defendant is incorporated in New York and operates its principal place of business in Valhalla, New York, which is encompassed by the Southern District. Further, the alleged injuries in this case arise from a contractual agreement within which Defendant placed a forum selection clause indicating that any action should be brought in federal or state court in Westchester County, New York, which demonstrates that Defendant purposefully directs its activities in the Southern District of New York. See Burger King, 471 U.S. at 472-73, 105 S.Ct. 2174. Because the Southern District would have been able to exercise personal jurisdiction over Defendant, venue also would have been proper under 28 U.S.C. § 1391; thus, Plaintiff could have properly filed this suit with the District Court for the Southern District of New York, and the case may be transferred there "[f]or the convenience of parties and witnesses [and] in the interest of justice." See 28 U.S.C. § 1404(a).

Finding that this action is transferrable to the Southern District of New York, we must now determine whether transferring it would in fact be "[f]or the convenience of parties and witnesses [and] in the interest of justice." See 28 U.S.C. § 1404(a). In so evaluating, we must look to the factors put forth by the Third Circuit in Jumara:

Brown, 2005 WL 1420776, at *2 (citing Jumara, 55 F.3d at 879-80).

The first and second Jumara factors can be inferred from the forum selection clause, the court in which Plaintiff filed suit (the Court of Common Pleas of Luzerne County, Pennsylvania), and the court to which Defendant would like the action to be transferred (U.S. District Court for the Southern District of New York). Initially, we agree with Plaintiff that, at this time, the forum selection clause at issue should not carry very much weight in this analysis.

In evaluating the facts presented in a light most favorable to Plaintiff, the nonmoving party, we find it relevant that Plaintiff did not receive notice of the Terms and Conditions of Sale, containing the forum selection clause, until after Defendant's service was rendered. Under traditional contract law, "[a]n offer can be accepted by the rendering of a performance only if the offer invites such an acceptance." Restatement (Second) of Contracts § 53 (1981). See also Mountain Properties, Inc. v. Tyler Hill Realty Corp., 767 A.2d 1096, 1101 (Pa.Super.Ct.2001) (citing AccuWeather, Inc. v. Thomas Broadcasting Co., 425 Pa.Super. 335, 625 A.2d 75, 78 (1993)) ("An offer may be accepted by conduct and what the parties do pursuant to the offer is germane to show whether the offer is accepted."); Cyberlease, LLC v. JP Morgan Chase Bank, No. 04 Civ. 1221(NRB), 2005 WL 2030317, at *3 (S.D.N.Y.2005) (citing John William Costello Associates, Inc. v. Standard Metals Corp., 99 A.D.2d 227, 472 N.Y.S.2d 325, 327-28 (N.Y.App.Div.1984)) ("Under New York law, however, a contract may be accepted by `conduct or acquiescence' [ ].").

Under both Pennsylvania and New York law, then, Defendant accepted Plaintiffs offer for payment in exchange for an expert opinion when it sent representatives to inspect the Luxel Equipment on January 28, 2011. (Doc. 1, p. 8). The facts presented indicate that Plaintiff did not receive notice of the Terms and Conditions of Sale via the invoice until at least February 24, 2011, twenty-seven days after the agreement at issue was finalized. (See Doc. 1, p. 16).

Defendant argues that Plaintiff manifested its assent to the forum selection clause when it remitted payment for the January 28 inspection on December 14, 2011. (Doc. 10, p. 3). While it is possible for this Court to find that Plaintiff did manifest such assent in remitting payment, we find it more plausible that Plaintiff wished to fulfill its own contractual obligation of paying for the service rendered, i.e., the inspection, which occurred prior to the notification of the forum selection clause Plaintiff received via the invoice.

Thus, we find that Plaintiff successfully proved its heavy burden of "demonstrating why [it] should not be bound by [its] contractual choice of forum," but we weigh the forum selection clause's existence into the appropriate balancing test accordingly. See Jumara, 55 F.3d at 879, 880.

The next factor for analysis under the Jumara balancing test involves where the claim arose. See Jumara, 55 F.3d at 879. Plaintiffs claims clearly arose in Pennsylvania, as that is where the Luxel Equipment was located and damaged, as well as where the inspection occurred. Thus, this factor weighs in Plaintiffs favor.

We now analyze the convenience of the parties and of potential witnesses as indicated by relevant physical and financial conditions with respect to one forum over the other. See Jumara, 55 F.3d at 879. Finding no pleadings regarding any party's or witness's physical condition, we turn to the relevant financial conditions. Defendant points out numerous times in its Reply Brief that it still operates its business in New York, while Plaintiff is no longer operating business in Pennsylvania. We note that the reason Plaintiff is no longer operating its business is because it was forced to close its doors as a result of events from which these claims arise. We find this factor to similarly weigh in Plaintiff's favor, as Defendant is likely more financially capable of travel at this time. Similarly, we find that the facts presented indicate that the majority of potential witnesses, including representatives from LWG and State Auto, are located in Pennsylvania.

We find the next Jumara factor regarding the location of books and records to also weigh in favor of retaining the case in the Middle District of Pennsylvania. See Jumara, 55 F.3d at 879. As stated, these claims arose in Northeastern Pennsylvania, and the facts presented indicate that the relevant records are similarly located. While it is true that records are easily transported, the Luxel Equipment at issue in this case is likely not.

As conceded by both parties, the factors considering enforceability of judgments and court congestion are moot in this instance. See id.

We find no practical considerations that may make the trial easier, more expeditious, or more inexpensive in one forum than another that have not already been weighed. See id. We further note that Defendant's asserted considerations regarding this factor are misdirected, as the Third Circuit in Jumara lists these considerations as a public factor. Id. We interpret this to mean that these are considerations that would make trial easier, more expeditious, or more inexpensive for the court system, not for the parties.

We further find that this Court does have an interest in hearing this controversy. See id. As mentioned, these claims arise locally from a small, local business in Old Forge, Pennsylvania, which is encompassed by this Court's geographical jurisdiction.

With respect to public policies of the relevant fora, we do not find that either party would be affected by local biases or prejudices in either fora; thus, this factor is also moot. See id.

Finally, finding at this point in time that the forum selection and choice of law clauses are unenforceable, we recommend that this case be governed by Pennsylvania law; therefore, a trial judge in this Court would have more familiarity with the applicable law than a judge sitting for the Southern District of New York. See id.

Taking all of the factors from Jumara into consideration, we find the balancing test to weight heavily in Plaintiff's favor. Accordingly, we will recommend that Defendant's Motion to Transfer be denied at this time.

B. Motion to Dismiss.

On January 24, 2012, with its Motion to Transfer, Defendant additionally filed a Motion to Dismiss Count I (Negligence) of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 5, p. 1). Federal Rule of Civil Procedure 12(b)(6) reads: "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: [ ](6) failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6).

Defendant argues that Plaintiff's negligence claim "should be dismissed with prejudice for failure to state a claim because it is merely a recast of a breach of contract claim." (Doc. 5, p. 1). Defendant asserts that Counts I and II of Plaintiff's Complaint are duplicative, as each arise "out of an alleged duty to plaintiff by virtue of contract." (Id. at 5).18

The Defense maintains:

(Doc. 5, pp. 5-6) (alteration in original).

Defendant submits that while, as a matter of contract, the claims in Plaintiff's Complaint are governed by New York law, this Court would reach the same result applying Pennsylvania law. (Doc. 5, p. 6 n. 1). The Defense asserts that Pennsylvania's "economic loss doctrine holds that negligence theories do not apply to actions between commercial enterprises where, as here, the only damages alleged are economic losses." (Id.).19

The Defense avers that Plaintiff's claims arise purely out of an alleged breach of contract and that Plaintiff has no basis of recovery outside of the parties' contractual agreement. (Id.). Defendant submits that Plaintiff has not asserted that Defendant owed Plaintiff any duty other than that imposed by the agreement itself or that Defendant engaged in tortious conduct aside from its obligations imposed by the contract. (Id.) (citing D'Ambrosio v. Engel, 292 A.D.2d 564, 741 N.Y.S.2d 42, 44 (N.Y.App.Div.2002)).

Defendant finds that because Plaintiff's breach of contract claim is tantamount to its negligence claim, "the latter fails as a matter of law." (Doc. 5, p. 7) (citing Compl. at 8-9; B & M Linen, Corp. v. Kannegiesser, USA, Corp., 679 F.Supp.2d 474, 488 (S.D.N.Y.2010) ("This negligence claim is nothing more than a duplication of [plaintiff's] core contract claims.") (granting motion to dismiss); Nardiello v. Stone, 235 A.D.2d 681, 652 N.Y.S.2d 647, 649 (N.Y.App.Div.1997) (holding that negligence claim merged with breach of contract claim)).

Plaintiff responds by asserting that while a tort action arises from a breach of law-imposed duty, a contract action arises from a breach of agreement-imposed duty. (Doc. 6, p. 14) (citing Bash v. Bell Telephone Co., 411 Pa.Super. 347, 601 A.2d 825 (Pa.Super.Ct.1992)).20 Plaintiff continues to state that the existence of a contractual agreement between two parties does not prevent one from bringing a tort claim against the other. (Doc. 6, p. 14) (citing eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10 (Pa.Super.Ct.2002); Bohler-Uddeholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79, 104 (3d Cir.2001)).21

Plaintiff then sets forth the `gist-of-the-action' doctrine but notes that the Pennsylvania Supreme Court has never explicitly adopted this test: "`When a plaintiff alleges that the defendant committed a tort in the course of carrying out a contractual agreement, Pennsylvania courts examine the claim and determine whether the `gist' or gravamen of it sounds in contract or tort.'" (Doc. 6, pp. 14-15, 14 n. 8) (quoting Sunquest Info. Sys., Inc. v. Dean Witter Reynolds, Inc., 40 F.Supp.2d 644, 651 (W.D.Pa.1999)).22 Plaintiff claims that the test centers around whether the duties in question are intertwined with contractually-imposed obligations or collateral to the contract. (Doc. 6, p. 15). If the duties are intertwined, then the claim sounds in contract, but if they are collateral, then the claim sounds in tort. (Id.).23

Plaintiff finds that the economic loss doctrine on which Defendant relies, which also not explicitly adopted by the Pennsylvania Supreme Court, is similar to the gist-of-the-action doctrine. (Doc. 6, p. 15,15 n. 9).24 The economic loss doctrine, according to Plaintiff, "`prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract.'" (Id. 15) (quoting Werwinski v. Ford Motor Co., 286 F.3d 661, 671 (3d Cir.2002)).

Plaintiff submits that Defendant's relevant contractual duties involved inspection of the Luxel Equipment and providing an opinion on repair versus replacement. (Doc. 6, p. 15). According to Plaintiff, Defendant was negligent when Wilson changed his opinion on repair versus replacement without informing Plaintiff of that changed opinion, thereby allowing Plaintiff to "deteriorate[ ] beyond repair." (Id. at 16). Plaintiff claims that the loss of its business due to the aforementioned negligent omission permits a claim for "extra-contractual damages and loss to the aforementioned negligent omission permits a claim for "extra-contractual damages and loss to [Plaintiff]"." (Id.). Plaintiff concludes that, with respect to this negligence, "neither the gist of the action or the economic loss doctrine apply." (Id.)

In its Reply Brief, Defendant asserts that its arguments that Plaintiffs claims are governed by New York law are unopposed, as the Defense finds that Plaintiff addressed none of those arguments in its Brief in Opposition to Defendant's Motion to Dismiss. (Doc. 10, p. 7).

Defendant continues to analyze Plaintiff's tort claim under Pennsylvania law, however, and further claims that Plaintiff "miss[ed] the mark" in depending upon the gist-of-the-action doctrine. (Id.) citing Sunquest, 40 F.Supp.2d 644 (W.D.Pa. 1999). Defendant echoes that under the gist-of-the-action doctrine, a court must evaluate whether the `gist' or gravamen of a claim sounds in tort or in contract. Defendant includes the following passage from Sunquest:

(Doc. 10, pp. 7-8) (alterations in original) (citations omitted in original) (quoting Sunquest, 40 F.Supp.2d at 651).

Defendant asserts that Plaintiff's claim that Defendant "allegedly misperformed the subject agreement" is in direct conflict with requisite Pennsylvania law because the conduct complained of is that one of Defendant's representatives allegedly failed to fulfill a promise. (Doc. 10, p. 8). The Defense then concludes that Plaintiff's negligence claim fails under Pennsylvania law and again requests that this Court dismiss with prejudice Count I of the Complaint. (Id.).

Because we will recommend that this Court deny Defendant's Motion to Transfer at this time, we analyze Plaintiff's claims under Pennsylvania law for the purpose of Defendant's Motion to Dismiss.

As stated, Pennsylvania courts follow the gist-of-the-action doctrine, which "is designed to maintain the conceptual distinction between breach of contract claims and tort claims" and "precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims." Pediatrix Screening, Inc. v. TeleChem Intern., Inc., 602 F.3d 541, 548 (3d Cir.2010) (internal quotation marks omitted) (quoting eToll, 811 A.2d at 14). See also Williams v. Hilton Group PLC, 93 Fed. Appx. 384, 386-87 (3d Cir.2004); Sunquest, 40 F.Supp.2d at 651.

In order for a plaintiff to raise a tort claim rather than a breach of contract claim, the alleged wrong complained of must be "the gist of the action, the contract being collateral." Pediatrix, 602 F.3d at 548 (internal quotation marks omitted) (quoting eToll, 811 A.2d at 14). Pennsylvania courts and federal courts interpreting Pennsylvania law have held that claims of fraud are barred when: (1) "they arose during the course of the parties' contractual relationship"; (2) "the allegedly fraudulent acts were breaches of duties `created and grounded in the ... contract'"; and (3) "the damages `would be compensable in an ordinary contract action [and] thus, the claim would essentially duplicate a breach of contract action.'" Pediatrix, 602 F.3d at 548 (alterations in original) (quoting and citing eToll, 811 A.2d at 20-21). When a tort claim is "inextricably intertwined" with a contract claim, the gist of the action sounds in contract, and the tort claim should be dismissed. Pediatrix, 602 F.3d at 549 (citing eToll, 811 A.2d at 21).25

Applying the reasoning used in Pediatrix to the case at bar, we will recommend that Plaintiffs negligence claim be dismissed from this action. See Pediatrix, 602 F.3d at 548. We find the Third Circuit's reasoning as applied to a claim of fraud arising from a contractual agreement to be similarly relevant in analyzing Plaintiffs negligence claim. See id. The Pediatrix court found that fraud claims are barred under Pennsylvania's gist-of-the-action doctrine when they stem from a contractual relationship, are essentially failures to perform duties "created and grounded in [a] contract," and led to damages that similarly resulted from a breach of contract. Pediatrix, 602 F.3d at 548. We find all three of these requirements to be applicable to Plaintiffs negligence claim.

Plaintiff's claim for negligence against Defendant clearly arises from a contractual relationship in that it requests relief for Defendant's alleged failure to provide an truthful expert opinion following the inspection for which Defendant was hired by Plaintiff. (Doc. 1, p. 12). Additionally, Plaintiff itself states in its claim that the duty Defendant allegedly breached was "established by contract." (Id.). Finally, Plaintiff avers that the damages from Defendant's alleged negligence were Plaintiffs "loss of business income and future business income/earning capacity," which are equivalent to the damages Plaintiff asserts under its breach of contract claim against Defendant. (Doc. 1, pp. 12, 13).

Further, as Defendant argues, Plaintiffs negligence claim is similarly barred by Pennsylvania's economic loss doctrine, which provides that negligence theories are not applicable to suits between commercial entities when the only damages asserted are those of economic loss. Sunburst Paper, LLC v. Keating Fibre Intern., Inc., Civil Action No. 06-3959, 2006 WL 3097771, at *3 (E.D.Pa. Oct. 30, 2006) (citing Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456, 577 A.2d 631, 634-34 (Pa.Super.Ct.1990); Werwinski v. Ford Motor Co., 286 F.3d 661, 671 (3d Cir.2002); Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 620 (3d Cir.1995); Factory Mkt., Inc. v. Schuller Int'l, 987 F.Supp. 387, 397 (E.D.Pa.1997); Sun Co. v. Badger Design & Constructors, Inc., 939 F.Supp. 365, 374 (E.D.Pa.1996)).

Accordingly, we find that Plaintiffs negligence claim is merely recasting its breach of contract claim; thus, we will recommend that former be dismissed from this action.

VII. RECOMMENDATION

Based on the foregoing, it is respectfully recommended that this Court: (1) deny at this time Defendant's Motion to Transfer this action to the Southern District of New York; and (2) grant Defendant's Motion to Dismiss Count I (Negligence) of the Complaint.

August 16, 2012

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 16, 2012.

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides: