The opinion of the court was delivered by: Wexler, District Judge.
This is a breach of contract and breach of warranty action
brought pursuant to this court's diversity jurisdiction. The
parties hereto entered into contractual agreements pursuant to
which defendant, Midwest Elastomers, Inc., ("Midwest" or
"Defendant") an Ohio corporation, provided plaintiffs Vitricon,
Inc., ("Vitricon") a Delaware corporation and Hanover
Specialties, a New York corporation, (collectively "Plaintiffs")
with rubber products. These products were used to manufacture
and install rubberized floor surfaces at parks located in
Tennessee, Arkansas, Missouri, New York and California.
In June of 2000, the parties entered into the first of a
series of contractual agreements regarding the sale of rubber.
On the back of the Midwest order forms, which served as the
sales contract, was a list of terms and conditions of sale.
Included was the following provision regarding disputes:
Disputes: Any controversy arising in connection
between Seller and Buyer shall be governed by the
laws of the State of Ohio and a state or federal
court within Ohio shall have sole jurisdiction over
any litigation resulting therefrom.
(Terms and Conditions of Sale, ¶ 12) (emphasis added).
II. Plaintiffs' Complaint
Plaintiffs allege that the rubber they purchased from
Defendant was defective. Specifically, it is alleged that the
rubber discolored when a substance used to prevent the rubber
from clumping during shipping mixed with the rubber in its
packaging. Plaintiffs seek damages for loss of profits stemming
from the costs to repair the floor surfaces. They also seek
damages, alleged to be attributable to the loss in their
Relying on the Terms and Conditions of Sale, as stated in each
sales agreement entered into, Defendant seeks dismissal of
Plaintiffs' complaint for lack of personal jurisdiction or for
failure to state a claim. Plaintiffs argue that venue in the
Eastern District of New York is proper and further, that the
forum selection clause does not apply to the claims raised here.
Plaintiffs further argue that the clause is and unenforceable
because it is boilerplate language contained in a shipping
It is well settled that forum selection clauses that have not
been attained through fraud, overreaching or undue influence are
fully enforceable. M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 12-13, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); Jones v.
Weibrecht, 901 F.2d 17, 18 (2d Cir. 1990). Such clauses control
the venue of a controversy unless the moving party bears its
heavy burden of showing that enforcement would be so
inconvenient as to deprive him of his day in court and would
offend public policy. M/S Bremen, 407 U.S. at 18, 92 S.Ct.
1907; Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1363 (2d Cir.
1993). A forum selection clause stated in clear and unambiguous
language, although in fine print, is considered reasonably
communicated to the plaintiff in determining its enforceability.
Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9 (2d Cir. 1995).
Where a company conducts business in many states, ...