United States District Court, N.D. Indiana, Hammond Division, Lafayette
OPINION AND ORDER
T. MOODY JUDGE
matter is before the court on defendant's motion to
dismiss on grounds of forum non conveniens. (DE #
15.) For the reasons identified below, the motion is denied.
Bio Town Ag, Inc. (“Bio Town”) filed the present
breach of contract suit against defendant Livestock Water
Recycling, Inc. (“LWR”), alleging that a manure
treatment and water reclamation system it purchased from LWR
failed to operate as promised. (DE # 1.) In response, LWR
filed a motion to dismiss, arguing that the parties'
contract contained a forum-selection clause that mandates
that this matter be litigated in Alberta, Canada. (DE # 15.)
Bio Town disputes that the forum-selection clause was part of
the parties' agreement. The following facts are
undisputed, for purposes of resolving the pending motion to
January 2013, Bio Town contacted LWR for information on its
manure treatment and water reclamation systems. (DE # 1 at
3.) On January 14, 2013, LWR provided Bio Town with a
document entitled, “Proposal for the Supply of a
Digestate Treatment System for 30 Million Gallons
Annually” (“the Proposal”). (Id.)
In the Proposal, LWR offered a refurbished treatment system
for $753, 000. (Id. at 4.) The Proposal also stated
that Bio Town's cost for operation of the water treatment
system could be as high as $0.02 per gallon, with a chemical
cost of up to $0.018 per gallon. (Id. at 3-4.)
Proposal contained LWR's “Standard Terms and
Conditions of Sale” (“Standard Terms”). (DE
# 1-1 at 12-13.). Clause 1 of the Standard Terms stated that
the Standard Terms would apply to any contract concluded with
any purchaser, to the exclusion of all other inconsistent
terms and conditions. (Id. at 12.) Clause 2 of the
Standard Terms stated that the Standard Terms would apply
whether the contract for sale was concluded by LWR's
acceptance of the purchaser's purchase order, or by
acceptance by the purchasers of LWR's Proposal.
(Id.) The Standard Terms also stated that the
Standard Terms could only be modified upon written agreement
by LWR. (Id.) Finally, the Standard Terms contained
a forum-selection clause, mandating that any litigation
between the parties be brought and maintained exclusively in
the courts of Alberta, Canada. (Id. at 13.)
representative from Bio Town expressed interest in purchasing
a LWR water reclamation system, but on terms different than
those contained in the Proposal. (DE # 1 at 4.) On March 1,
2013, representatives of Bio Town and LWR reached an oral
agreement that was memorialized in an email (“the
Email”) later the same day. (DE # 1 at 4.) The
subject-line of the email was: Verbal Go Ahead. (DE # 1-2.)
terms the parties ultimately agreed to, as memorialized in
the Email, were different than those contained in the
Proposal in three material respects. First, the Proposal
offered a refurbished water reclamation system for $753, 000,
but the parties ultimately agreed that Bio Town would
purchase the system for $735, 000. (Id.) The
Proposal stated that Bio Town's on-going chemical cost
would be as high as $0.018 per gallon, but the parties
ultimately agreed that this cost would be $0.015 per gallon.
(Id.) Finally, Bio Town argues that on March 1st the
parties agreed to a warranty that was different than the
warranty contained in the Proposal.
Town made two deposit payments to LWR in March 2013. (DE # 1
at 5.) On April 19, 2013, around the time that the LWR system
was delivered, LWR provided Bio Town with a document for Bio
Town to sign. (DE # 1 at 5; DE # 1-3.) Bio Town characterizes
the document as a “draft written
agreement.” (DE # 1 at 4.) Bio Town objected to
signing the Draft Agreement on the basis that it incorporated
by reference the Proposal, which contained terms that the
parties had not agreed to, and that contradicted the terms of
the parties' March 1st agreement; specifically, the
warranty and cost provisions that the parties agreed to on
March 1st. (Id. at 6.) LWR's position is that
Bio Town accepted the terms of its Proposal when it reached
an agreement on March 1st and the Draft Agreement merely
formalized the terms to which the parties had already agreed.
(DE # 16 at 6-7.) Despite Bio Town's refusal to sign the
Draft Agreement, the parties proceeded with their
relationship. (DE # 1 at 6.)
Town subsequently brought the present lawsuit, alleging that
LWR's water reclamation system failed to function in the
manner guaranteed by LWR. (DE # 1.) LWR filed a motion to
dismiss based on forum non conveniens. (DE # 15.)
This matter is fully briefed and is ripe for ruling.
Town, as the party resisting application of the
forum-selection clause, bears the burden of establishing that
transfer to Alberta is unwarranted. Atl. Marine Const.
Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S.
49, 63 (2013) (“[T]he plaintiff must bear the burden of
showing why the court should not transfer the case to the
forum to which the parties agreed.”). This raises a
predicate question, however, of whether the parties agreed to
the forum-selection clause. Bio Town contends that it did
not. Thus, the court must first determine whether the
forum-selection clause was part of the parties'
interpretation is a substantive matter governed by state law.
Coplay Cement Co. v. Willis & Paul
Grp., 983 F.2d 1435, 1438 (7th Cir. 1993). The burden of
proof on a matter of state law, is governed by state law.
See James River Ins. Co. v. Kemper Cas. Ins. Co.,
585 F.3d 382, 384-85 (7th Cir. 2009); Roberts &
Schaefer Co. v. Merit Contracting, Inc., 99 F.3d 248, n.
2 (7th Cir. 1996).
Indiana law, a party seeking to enforce a term of a contract
bears the burden of establishing the existence of the term in
the parties' agreement. See e.g., Gabriel v.
Windsor, Inc., 843 N.E.2d 29, 45 (Ind.Ct.App. 2006)
(“The party seeking rescission of a contract bears the
burden of proving his right to rescind and his ability to
return any property received under the contract.”);
Sanford v. Castleton Health Care Ctr., LLC, 813
N.E.2d 411, 416 (Ind.Ct.App. 2004) (“[U]nder Indiana
contract law, the party seeking to compel arbitration has the
burden of demonstrating the existence of an enforceable