United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
S. VAN BOKKELEN UNITED STATES DISTRICT COURT
claims the monument it bought from Defendant cracked too
moved for dismissal on the grounds that a forum-selection
clause requires the parties to litigate this matter (if at
all) in the State Courts of Wisconsin. Alternatively,
Defendant moved for dismissal of the fraud claim for lack of
the requisite level of pleading particularity.
Ridgelawn Cemetery Association (an Indiana corporation)
ordered a 54, 000-pound granite monument from Defendant
Granite Resources Corporation (“GRC, ” a
Wisconsin corporation) on August 27, 2010. GRC responded by
faxing an order acknowledgment to Ridgelawn, and by sending
an invoice to Ridgelawn. (GRC does not specify the manner by
which it sent the invoice.)
claims this order acknowledgment and invoice contained terms
and conditions on their backs, including a forum-selection
clause compelling the parties to bring any litigation
regarding this matter exclusively in the State Courts of
Any unresolved legal disputes shall be submitted solely to
courts of the State of Wisconsin, and each party accepts
(DE 9-1 at 3.)
the front of the order acknowledgment nor the front of the
invoice mentions the existence of terms and conditions on the
admits it received the order acknowledgement via fax, and
also admits it received the invoice. (Ridgelawn does not
specify the method of the invoice's transmission either.)
But Ridgelawn denies ever receiving the alleged terms and
conditions on the backs of the documents.
claims it also mailed the order acknowledgment-with the terms
and conditions on the back-to Ridgelawn via regular United
States mail. But Ridgelawn denies ever receiving such mail.
delivered the monument in April 2011. Ridgelawn paid in full.
according to Ridgelawn, numerous cracks in the granite
monument began to appear only three years after installation.
Ridgelawn complained to GRC, which sent a representative to
investigate the monument. The representative concluded that
the cracks were natural fissures, and refused to replace the
Ridgelawn sued GRC here.
claims that on December 16, 2015, after demanding
satisfaction from GRC, Ridgelawn was provided with a copy of
the terms and conditions for the first time. (The affidavit
of Robert Williams, Jr., cited in support of this point, is
actually a bit narrower, and only claims Ridgelawn first
became aware of the terms and conditions on December 16,
2015, when GRC sent a copy to Ridgelawn's attorneys.)
law favors forum-selection clauses. The Supreme Court held
“such clauses are prima facie valid and should be
enforced unless enforcement is shown by the resisting party
to be ‘unreasonable' under the
circumstances.” M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 10 (1972).
contract requires three basic elements: offer, acceptance,
and consideration. C.G. Schmidt, Inc. v. Permasteelisa N.
Am., 825 F.3d 801, 805 (7th Cir. 2016) (applying
Wisconsin law); Houston v. Hyatt Regency
Indianapolis, 997 F.Supp.2d 914, 922 (S.D. Ind. 2014)
(applying Indiana law).
clauses are valid contractual terms. See Muzumdar v.
Wellness Int'l Network, Ltd., 438 F.3d 759, 761 (7th
Cir. 2006); see also Carnival Cruise Lines, Inc. v.
Shute, 499 U.S. 585 (1991) (enforcing forum-selection
clause on a passenger cruise ticket not subjected to
negotiation). But a court will not enforce a forum-selection
clause, or any other contractual term, if “enforcement
would be unreasonable or unjust or the provision was procured
by fraud or overreaching.” Paper Express, Ltd. v.
Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir.
proper method for seeking enforcement of a forum-selection
clause pointing to a state forum is through the doctrine of
forum non conveniens. Atl. Marine Const. Co. v.
U.S. Dist. Ct. for W. Dist. Tex., 134 S.Ct. 568, 580
(2013). In ruling on such a motion, a court may consider
facts outside the pleadings. See Extra Equipamentos E
Exportacao v. Case Corp., No. 01-C- 8591, 2005 WL 843297
(N.D. Ill. Jan. 20, 2005). Generally, a defendant seeking
dismissal under the doctrine of forum non conveniens
bears a heavy burden. See Dordieski v. Austrian
Airlines, 2:15-CV-180, 2016 WL 4437958, at *2 (N.D. Ind.
Aug. 23, 2016) (Defendants “who invoke forum non
conveniens bear a heavy burden, particularly when the
plaintiff's choice is his home forum.”).
forum-selection clause shifts the balance. The party seeking
to resist the forum-selection clause bears the burden of
establishing that transfer to the bargained forum is
unwarranted. Atl. Marine, 134 S.Ct. at 581-82.
that presumes the existence of a forum-selection clause in
the first place.
party seeking to enforce the forum-selection clause bears the
burden of proving the existence of that clause, if that is in
doubt. See Latino Food Mkt'rs v. Ole Mexican
Foods, 407 F.3d 876, 880-81 (7th Cir. 2005). Then, in a
battle-of-the-forms, the party opposing inclusion in the
contract of the proposed forum-selection clause bears the
burden to show the clause would materially alter the
contract. See Conmark Merch. v. Highland Grp., 932
F.2d 1196, 1202-03 (7th Cir. 1991).
and Wisconsin both adopted the relevant battle-of-the-forms
section of the Uniform Commercial Code, governing the issue
of whether an additional term included in an acceptance
becomes part of the contract:
(1) A definite and seasonable expression of acceptance or a
written confirmation which is sent within a reasonable time
operates as an acceptance even though it states terms
additional to or different from those offered or agreed upon,
unless acceptance is expressly made conditional on assent to
the additional or different terms.
(2) The additional terms are to be construed as proposals for
addition to the contract. Between merchants such terms become
part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the
(b) they materially alter it; or
(c) notification of objection to them has already been given
or is given within a reasonable time after notice of them is
(3) Conduct by both parties which recognizes the existence of
a contract is sufficient to establish a contract for sale
although the writings of the parties do not otherwise
establish a contract. In such case the terms of the
particular contract consist of those terms on which the
writings of the parties agree, together with any
supplementary terms incorporated under any other provisions
of this Act.
Ind. Code § 26-1-2-207; W.S. 402.207 (Wisconsin's
statute capitalizes the first words of subsections (a), (b),
and (c), and refers to its own statutes at the end of the
a court concludes plaintiff entered a contract with a
forum-selection clause will the court turn to the broader
issue of the enforceability of that clause.
Transmission of the ...