United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANTS' MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO TRANSFER VENUE
RICHARD L. YOUNG, District Judge.
This action arises out of a commercial dispute between Plaintiff, Lone Star Industries, Inc., d/b/a Buzzi Unicem USA ("Buzzi"), and Defendants, Fort Walton Concrete, Inc. ("FWC") and Crestview Ready Mix, Inc. ("CRM") (collectively "Defendants"). Presently before the court is Defendants' motion to dismiss the Complaint for lack of personal jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) respectively, or in the alternative, to transfer venue to the United States District Court for the Northern District of Florida, Pensacola Division, pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, Defendants' motion is DENIED.
Defendants manufacture and deliver concrete in Florida. Defendants purchased most of their cement from Buzzi at its facility in Santa Rosa County, Florida, pursuant to a Buyer's Credit Application and Open Account Agreements, signed by President of both Defendants, James E. Campbell, on November 16, 2006 ("Agreements"). The "Agreements" contain choice of law and forum selection provisions, which provide: "Seller and Buyer further agree that any legal action shall be brought in the State or Federal Court located in Indianapolis, Indiana and that Buyer and seller both submit to the exclusive personal jurisdiction of such courts." (Filing No. 1-1, Complaint, Exhibit 3).
From 2008 through 2011, the construction industry declined significantly, resulting in less demand for Defendants' concrete. During that time period, Defendants were unable to make the payments in full for Buzzi's Portland cement. (Filing No. 23 ¶ 10). Defendants do not dispute that they owe Buzzi for the cement they purchased; they do dispute, however, the amount demanded by Buzzi.
In December 2013, the parties filed suit against each other in different forums. First, on December 9, 2013, Defendants filed suit against Buzzi in Florida state court alleging fraud in the inducement, conversion, and a claim under the Florida Deceptive and Unfair Trade Practices Act (the "Florida" case). ( Id. ¶ 1). Buzzi removed the Florida case to the United States District Court, Northern District of Florida, Pensacola Division, on grounds of diversity jurisdiction. Id. Buzzi also moved to dismiss the Second Amended Complaint filed in the Florida case or, in the alternative, moved to transfer venue of the case to the Southern District of Indiana. Second, on December 13, 2013, Buzzi filed suit against Defendants in the Marion Superior Court, seeking to collect the outstanding balances owed by Defendants (the "Indiana case"). Defendants, in turn, removed the Indiana case to United States District Court, Southern District of Indiana, Indianapolis Division, on the same jurisdictional grounds. ( Id. ¶ 2). On February 25, 2014, the court granted the parties' joint motion to stay the Indiana case pending ruling on Buzzi's motion to dismiss or transfer the Florida case. ( Id. ¶ 3).
On January 2, 2015, the Florida Court transferred the Florida case to the Southern District of Indiana, Indianapolis Division, pursuant to the forum selection clauses set forth in the Agreements. ( Id. ¶ 5). On January 22, 2015, this court entered an Order Consolidating Cases. ( Id. ¶ 7). On February 3, 2015, Defendants filed the present motion to dismiss the Indiana case or, in the alternative, motion to transfer venue of the Indiana case to the United States District Court for the Northern District of Florida. (Filing No. 22). To grant Defendants' motion would require the court to unconsolidate the Florida and Indiana cases, and transfer the Indiana case to Florida.
A. Motion to Dismiss for Lack of Personal Jurisdiction
1. Standard of Review
"Challenges to personal jurisdiction may be waived by either express or implied consent." Heller Financial, Inc. v. Mid-Whey Powder Co., Inc., 883 F.2d 1286, 1290 (7th Cir. 1989) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985)). In the commercial context, parties typically agree in advance to submit their disputes for resolution in a particular forum pursuant to a forum-selection clause. Id. The "enforcement of [a] valid forum selection clause, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system.'" Atlantic Marine Const. Co., Inc. v. U.S. Dist. Ct. for W. Dist. of Texas, 134 S.Ct. 568, 581 (2013) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988)). "For that reason, and because the overarching consideration under § 1404(a) is whether a transfer would promote the interest of justice, ' a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases.'" Id. (citing Stewart, 487 U.S. at 33)). See also, Knauf Insulation, GMBH v. S. Brands, Inc., No. 1:12-cv-00273, 2013 U.S. Dist. LEXIS 38435, at *14 (S.D. Ind. Mar. 19, 2013) ("Due process is not offended by enforcing a reasonable forum selection clause that has been obtained through a freely negotiated agreement").
2. Is the Forum-Selection Clause Valid?
Defendants argue that the forum-selection clause within each Agreement is not enforceable for two reasons. First, they contend that, because Buzzi did not sign the Agreements, contracts between Defendants and Buzzi were never formed. Second, they contend that the identity of the seller from the six Buzzi-related entities is not adequately identified within the Agreements.
The absence of a signature on a contract does not mean that acceptance did not occur, however. Indiana law provides that a party may demonstrate an intent to be bound through acts manifesting acceptance. Homer v. Borman, 743 N.E.2d 1144, 1147 (Ind.Ct.App. 2001) ("Assent to th[e] terms of a contract may be expressed acts which manifest acceptance."). Although Buzzi did not sign the Agreements, the company's monthly cement deliveries to Defendants establishes acceptance by performance. Because Buzzi accepted the Agreements through performance, the fact that Buzzi did not sign the ...