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Fu Da International, Ltd. v. Kohl's Department Stores

January 21, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge


This dispute arises out of a business relationship whereby Plaintiff Fu Da International, Ltd. ("Fu Da"), a ladies' apparel manufacturer/importer, sold merchandise to Defendant Kohl's Department Stores, Inc. ("Kohl's"), a national retailer with offices and stores in New York, pursuant to various sales agreements. Fu Da brought this action against for breach of contract, account stated, unjust enrichment and quantum meruit, anticipatory breach and restitution. Kohl's moves to dismiss Fu Da's Complaint, on the ground that forum selection clauses in the parties' contracts require any such suit to be brought in Wisconsin. For the reasons set forth below, Kohl's' motion is denied.


Fu Da alleges that in April and May 2008, it shipped and delivered to Kohl's ladies' garments for which Kohl's has failed to pay, in breach of the parties' purchase orders. (Compl. ¶¶ 6-39.) Fu Da also alleges that in May 2008 Kohl's improperly canceled various orders that it had placed between July 2006 and December 2007. (Id. ¶¶ 40-83.) The Complaint further alleges that Kohl's deducted improper chargebacks and margin support from Fu Da's outstanding invoices, and made improper deductions, returns and cancellations, in violation of the Vendor Support Agreement entered into by the parties on April 5, 2006. (Id. ¶¶ 84-136.) Finally, Fu Da brings causes of action for restitution, fraud and unjust enrichment based on Kohl's alleged improper actions. (Id. ¶¶ 137-147.)

The Vendor Support Agreement, which was drafted by Kohl's on April 4, 2006 and signed by Fu Da on April 5, 2006, states that it "outlines terms and conditions governing all purchase orders, in addition to those terms and conditions on [i.e., Kohl's website]." (Def.'s Ex. B at 1.) The term of the agreement spans the events giving rise to Fu Da's claims in this lawsuit. (Id. (agreement effective for Spring 2006 orders and until the parties enter into a new signed agreement).) ThatAgreement, no matter how much the Defendant may wish it so, does not contain a forum selection or governing law clause.

In connection with this motion, Kohl's submits a document titled "Merchandise Purchase Order Terms and Conditions" ("Terms and Conditions"), which it claims exists on Kohl's' website. (Id. at 2.) The document bears the date, April 2008, but Kohl's' claims that this is merely the date that its attorneys printed it from the website and not the date on which the Terms and Conditions went into effect. (See Invidiata Aff. in Reply ¶ 4.) That document doescontain a forum selection clause that provides that

[a]ny suit, action or proceeding against [Kohl's] with respect to [Kohl's'] Purchase Order or the parties' relationship or actions with respect thereto shall be brought in Waukesha County, Wisconsin, or in the United States District Court for the Eastern District of Wisconsin, and you hereby submit to the exclusive jurisdiction of such courts for the purpose of any suit, action or proceeding. You waive any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. (Id. at 14.) The Terms and Conditions contains a clause that identifies Wisconsin law as the governing law. (Id.)

The fly in this ointment, is that there is no evidence that Fu Da agreed to the forum selection clause or the other provisions of the Terms and Conditions or that the Terms and Conditions or any forum selection clause existed on Kohl's' website at the time of execution of the Vendor Support Agreement. Similarly, the purchase orders and worksheets referenced in Fu Da's Complaint also lack a forum selection clause, or any reference to one. (See Deng Affidavit Exs. 1 & 2.)

On February 13, 2008, Fu Da and Kohl's entered into a contract drafted by Kohl's and titled "Electronic Data Interchange Trading Partner Agreement" ("EDI Agreement"). (Def.'s Ex. C.) The EDI Agreement sets forth various procedures and rules by which the parties would transmit and receive electronic data relating to purchase, shipping and sales transactions. (Id. at 1.) For example, the agreement outlines security procedures, requirements for electronic identification "signatures," the verification of receipt of electronic data, confidentiality of electronic data, and so forth. (Id. at 2-3.) The EDI Agreement contains a forum selection clause that provides that "[t]his Agreement shall be governed by and interpreted in accordance with the laws of the State of Wisconsin and exclusive jurisdiction of any dispute, claim or lawsuit arising from the agreement shall be in Waukesha County, Wisconsin." (Id. § 4.4.)


Kohl's moves for dismissal on the basis of the forum selection clause pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(3) and 12(b)(6) and 28 U.S.C. § 1406(a).

It is not necessary to identify a specific subsectionof Rule 12(b), as the Second Circuit has set forth a four-part inquiry to determine whether a claim must be dismissed by reason of a forum selection clause. The first question is whether the party seeking to enforce the clause has shown that the clause was reasonably communicated to the party resisting enforcement. Second, has the party seeking to enforce the clause shown that the clause was mandatory? Third, has the party seeking to enforce the clause shown that the claims and parties are subject to the clause? See, e.g., Phillips v. Audio Active Ltd., 494 F.3d 378, 383 (2d Cir. 2007); John Boutari & Sons, Wines & Spirits, S.A. v. Attiki Imps. & Distribs. Inc., 22 F.3d 51, 53 (2d Cir. 1994); Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1358-61 (2d Cir.), cert. denied, 510 U.S. 945 (1993).

Fourth, if the party seeking to enforce the clause has met its burden as to the first three prongs, the burden shifts to the party resisting enforcement to "rebut the presumption of enforceability by making a sufficiently strong showing that 'enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.'" Phillips, 494 F.3d at 383-84 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972) (establishing federal standard relating to enforcement of forum selection clauses applicable in admiralty and international transactions)); see Bense v. Interstate Battery Sys. of Am., Inc., 683 F.2d 718, 721 (2d Cir. 1982) (applying Bremen standard to contractual dispute in non-admiralty context).

Here, it is clear that the EDI Agreement does not apply to this case, as the agreement does not relate to the purchase orders or the events giving rise to Fu Da's claims and was executed after the sales contracts and purchase orders on which Fu Da bases its claims. (See Deng Aff. ΒΆ 10.) Indeed, in its reply, Kohl's appears to abandon its arguments based on the EDI Agreement; the reply focuses solely on the forum selection clause in the Terms and Conditions and admits that "[t]he EDI Agreement may be dated later than some of the acts described in the complaint, but is there ...

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