United States District Court, E.D. New York
[Copyrighted Material Omitted]
Vincent R. Fontana, Esq., Garden City, NY, for Plaintiff.
Bailey & Orozco, LLC by Michael A. Orozco, Esq., Newark, NJ, for Defendants.
MEMORANDUM & ORDER
HURLEY, Senior District Judge:
Plaintiff TecFolks, LLC (" plaintiff" or " TecFolks" ) commenced this diversity action against defendants Claimtek Systems (" Claimtek" ), Sydasoft, Inc. (" Sydasoft" ), Kyle Farhat (" Farhat" ), and Nishat Kurtz (" Kurtz" ) (collectively, " defendants" ) alleging fraud and breach of contract. Presently before the Court is defendants' motion, made pursuant to Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure, seeking dismissal of plaintiff's Complaint based on the terms of a forum selection clause. For the reasons set forth below, the motion is GRANTED.
On November 30, 2010, TecFolks and Claimtek executed a Contract & Licensing Agreement (the " Contract" ) and an Addendum to the Contract. Pursuant to the Contract, Claimtek was to provide TecFolks with a medical claims processing system, which included training manuals, video tapes, medical billing software, technical support, and other items related to medical claims processing. (Compl. ¶ 10 & Ex. A.) TecFolks alleges that it paid defendants " $15,095 on signing the contract and executed a promissory note in the amount of $5,000." ( Id. ¶ 11 & Ex. A.) Paragraph 18 of the Contract, which contains a forum selection clause, states, in relevant part:
ClaimTek and the Licensee/Buyer/Purchaser expressly agrees and acknowledges that the forum and place of any dispute and resolution of any dispute, relating to or arising out of this contract, shall be in the State of California, in the city where Licensee/Buyer/Purchaser is located.
( Id., Ex. A.)
On September 9, 2011, plaintiff filed the instant Complaint. TecFolks alleges that Claimtek violated the terms and conditions of the Contract and Addendum when it failed to provide, inter alia, (1) technical support to correct errors in the software; (2) a customized website; (3) 1,700 new brochures; (4) proper training; and (5) other technical, business and marketing support. ( Id. ¶¶ 12-22.)