United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD, UNITED STATES DISTRICT JUDGE:
GmbH (“Rimowa”), a luggage manufacturer, retained
Meiré GmbH & Co. KG (“Meiré”)
to design an advertising campaign to promote its products.
After the campaign's launch, Plaintiff Laspata DeCaro
Studio Corporation (“Laspata”) filed the instant
suit against Rimowa, its subsidiaries Rimowa Inc. and Rimowa
Distribution, Inc. (collectively, the “Rimowa
Entities”) and Meiré, alleging the images used
in the campaign infringed Laspata's copyrights. The
Rimowa Entities assert four crossclaims against Meiré
based on its alleged misrepresentation that it owned the
copyrights to the images at issue. Meiré moves to
dismiss the crossclaims for lack of personal jurisdiction or,
in the alternative, on forum non conveniens grounds
based on a forum selection clause. For the following reasons,
the motion is granted.
following is taken from the parties' pleadings and
affidavits and is undisputed. See Martinez v. Bloomberg
LP, 740 F.3d 211, 216 (2d Cir. 2014) (“[I]n
evaluating a motion to dismiss based on a forum selection
clause, a district court typically relies on pleadings and
affidavits . . . .”).
is a German luggage manufacturer with its principal place of
business in Cologne, Germany. Its subsidiaries include Rimowa
Inc. and Rimowa Distribution, Inc. Meiré is a German
advertising agency. Like Rimowa, its principal place of
business is in Cologne.
in 2008, Rimowa hired Meiré to direct advertising
campaigns on an as-needed basis. The parties have entered
into agreements for roughly 480 separate projects.
2011, a Meiré employee sent an email to Birgit
Wenners, the head of the public relations and communications
department at Rimowa, stating, “Please find attached
the cover letter of the notification factoring as well as our
current T&Cs for your perusal and for
signature.” Attached to the email were (1) the letter,
which addressed Meiré's new financing and invoice
payment procedures, and (2) a document, dated April 2011,
entitled “General Terms and Conditions of Trade of
Meiré GmbH & Co KG” (the
“GTCs”). Wenners replied that she had received the
“new” GTCs and, in another email, sent an
executed version of the factoring letter, which references
the GTCs. In the Fall of 2011, Marc Meiré, the founder
and Managing Partner of Meiré, also provided the GTCs
to Rimowa's CFO.
GTCs' opening paragraph provides in part:
All contracts shall be executed under the following General
Terms and Conditions of Trade. [Meiré's] General
Terms shall apply exclusively. The General Terms shall also
apply for future business relationships, even if they are not
explicitly agreed upon again.
last section contains forum selection and choice of law
provisions, which state:
Cologne is agreed upon as the place of jurisdiction and the
place of performance, if [Meiré's] contractual
partner is a merchant within the meaning of the provisions of
. . .
The legal relationship between the contractual parties shall
be governed exclusively by the law of the Federal Republic of
Germany . . . .
beginning of their relationship in 2008, Meiré
provided Rimowa with its GTCs, and each Meiré invoice
Rimowa paid referred to that document. The version of the
GTCs in effect when Meiré began its dealings with
Rimowa contain the same forum selection clause and choice of
law clause as the April 2011 version. No Rimowa employee has
ever objected to the GTCs or questioned their applicability
to the dealings between Rimowa and Meiré.
March 2014, Rimowa contacted Meiré about providing
services for Rimowa's 2015/2016 “Lookbook”
and related advertising campaign. A Lookbook is a catalog
that promotes Rimowa's products using a
“story” concept. Meiré accepted
Rimowa's retention offer and began work on the project.
In April 2014, Meiré confirmed by ...