The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
On March 6, 2009, defendant filed a motion to dismiss plaintiff's complaint or, alternatively, to transfer this case to the United States District Court for the Northern District of Ohio. Defendant asserts that the transaction in question occurred entirely within Ohio among parties based entirely in Ohio, and that there is no reason to bring the case in New York. Plaintiff counters that the parties entered a valid forum selection agreement designating this District as the exclusive federal forum for any litigation arising from the purchase, an assertion that defendant denies. The Court held oral argument on January 20, 2010. For the reasons below, the Court will grant defendant's motion and dismiss the case for lack of personal jurisdiction.
This case concerns the purchase and installation of a control system for a heating, ventilation, and air conditioning ("HVAC") system at the Erieview Towers in Cleveland, Ohio. Plaintiff manufactures fluid flow devices for HVAC systems. Plaintiff is a multinational company that, inter alia, has an office in North Tonawanda, New York and an agent called Northrich Company in Garfield Heights, Ohio. Defendant is an HVAC contractor organized under Ohio law with a principal place of business in Middleburg Heights, Ohio.
In October 2007, after taking on a project to perform HVAC work at Erieview Towers, defendant agreed to engage plaintiff as a subcontractor through the Northrich Company. Through Purchase Order number 49888 dated October 24, 2007, defendant sent Northrich a purchase order in the amount of $80,000 to acquire an IPC-11550 control system. This purchase order was signed by Dave A. Zebrowski, a senior project manager for defendant. The purchase order contains no language regarding indemnification, governing law, jurisdiction, venue, or acceptance.
In response to defendant's purchase order, plaintiff shipped the control system. For several months in 2008, the parties appear to have disputed how functional plaintiff's control system was. Without delving into details that are in dispute and not relevant to the resolution of the pending motion, the Court will note briefly that defendant considered plaintiff's control system defective.
Defendant claims to have removed plaintiff's control system and replaced it, though defendant admitted at oral argument that it never returned it to plaintiff. The dispute over the quality of the control system and defendant's obligation to pay for it ultimately led to the commencement of this litigation.
The details that are relevant to resolving the pending motion concern exactly what plaintiff did in response to defendant's purchase order. Exhibits B and C to plaintiff's opposition papers (Dkt. No. 14 at 8, 10-13) consist of two documents, one titled an "Order Acknowledgment" and one titled "Terms of Sale and Warranty." The Order Acknowledgment has plaintiff's letterhead at the top and does not mention Northrich. The Order Acknowledgment also is undated and unsigned, with no indication as to whether it was sent or received. The Order Acknowledgment suggests that plaintiff's shipment of the control system began no later than March 19, 2008 and concluded no later than March 28, 2008. The Terms of Sale and Warranty are unsigned, undated, and also unaddressed, and again have no indication as to whether they were sent or received. Although plaintiff has submitted evidence that sending these two documents in response to purchase orders is a "standard practice," there is no evidence in the docket indicating when this standard practice occurs for any given purchase order or whether anyone working for plaintiff specifically recalls sending these two documents to defendant. Paragraph 1 of the Terms of Sale and Warranty states that "[t]he the following terms shall prevail over and cancel any other or different terms or conditions proposed by a customer of [plaintiff] through a purchase order or otherwise." Paragraph 19 states that New York law will govern defendant's purchase and that this District will have exclusive jurisdiction and will be the exclusive venue for any federal litigation arising from the purchase. Paragraph 21 states that defendant's "acceptance of any goods supplied by [plaintiff] or on [plaintiff's] behalf shall without limitation constitute acceptance of all terms and conditions as stated herein." Critically, plaintiff rests its opposition to defendant's motion entirely on these two documents. Plaintiff has chosen not to contest that all relevant events in this case occurred in Ohio, or that defendant never established minimum contacts with New York within the meaning of N.Y. CPLR 302.
This case commenced when plaintiff filed its complaint on December 12, 2008. In the complaint, plaintiff set forth one claim for breach of contract and one claim for unjust enrichment. The complaint makes no mention of the Order Acknowledgment, Terms of Sale and Warranty, or any other contractual agreements regarding jurisdiction and venue. In fact, Paragraph 3 of the complaint states only that the Court has subject matter jurisdiction under the diversity statute, 28 U.S.C. § 1332. Defendant filed its initial motion papers on March 6, 2009, and made no mention in those papers of the Order Acknowledgment or Terms of Sale and Warranty. Plaintiff introduced those two documents to this case for the first time in its opposition papers, filed on July 24, 2009. Defendant's reply of August 6, 2009 represents the first time that defendant addressed these two documents. As part of its reply in support of its motion, defendant insists that it saw the Order Acknowledgment and Terms of Sale and Warranty for the first time in plaintiff's opposition papers. Although plaintiff rests its opposition on these two documents, defendant argues that it could not have consented to these documents if it never saw them before. In the absence of a forum selection clause, defendant argues, this Court cannot have personal jurisdiction over it-or must at least change venue-because the entire transaction began and ended in Ohio and because all witnesses and relevant evidence are in Ohio.
Personal Jurisdiction Generally "In deciding a pretrial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion. If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials. Eventually, of course, the plaintiff must establish jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at trial. But until such a hearing is held, a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion." Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981) (citations omitted). An evidentiary hearing will not be necessary here because the Court has sufficient information about the forum selection clause and because, through its opposition papers and oral argument, plaintiff neither opposed nor even commented on defendant's assertions that this case otherwise has no connection to the state of New York. Consequently, Plaintiff will be able to establish personal jurisdiction if and only if it can establish the validity of the forum selection clause in the Terms of Sale and Warranty.
An assessment of basic principles of contract law will put the forum selection clause in proper context. "Under New York law a contract is formed once four elements are in place: (1) offer; (2) acceptance; (3) mutual assent; and (4) an intent to be bound." Vanlab Corp. v. Blossum Valley Foods Corp., No. 04-CV-6183, 2005 WL 43772, at *2 (W.D.N.Y. Jan. 10, 2005) (Telesca, J.) (citation omitted). New York's Uniform Commercial Code applies to the particular transaction at issue in this case because it concerned a present or future sale of goods. See N.Y. U.C.C. § 2-105(1) (defining "goods"); id. § 2-106(1) (defining "contract"). Defendant's purchase order, with its instruction to ...