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VITRICON, INC. v. MIDWEST ELASTOMERS

July 10, 2001

VITRICON, INC. AND HANOVER SPECIALTIES, PLAINTIFFS,
V.
MIDWEST ELASTOMERS, INC., DEFENDANT.



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.

BACKGROUND

I. Facts

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 reputations.

III. Defendant's Motion

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 invoice.

DISCUSSION

I. Legal Principles

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, ...


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