United States District Court, E.D. New York
ORDER ON MOTION TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendants, VP Records,
Greensleeves Records Ltd., STB Music, Inc., Greensleeves
Publishing Ltd., ADA Music, and Warner Music, Inc.
(collectively “Defendants”) Joint Motion to
Transfer and to Dismiss Plaintiff's Complaint, ECF No.
 (the “Motion”). The Court has carefully
reviewed the Motion, the parties' briefs, the applicable
law and is otherwise fully advised. For the reasons that
follow, the Motion is granted.
Kemar McGregor (“Plaintiff”), is a musical
producer who alleges he has an ownership interest in hundreds
of musical compositions listed in the Schedules A and B,
attached to his Complaint. See ECF No.  at 1.
Defendants VP Records, STB Music, Greensleeves Records, Ltd.,
Greensleeves Publishing Ltd., Warner Music Inc., ADA Music,
and Royalty Network, Inc. are independent record labels,
entertainment distribution corporations, or music publishing
corporations alleged to be organized under the laws of New
York with their principal place of business in New York.
Id. at 4-6. As to the musical compositions
identified in Schedule A, Plaintiff alleges that he maintains
an ownership interest in the rights and title to the
copyrights as the author and sole owner of Kingston Song
Edition, a publishing entity. Id. at 6. As to the
musical compositions identified in Schedule B, Plaintiff
alleges that he inherited the interest and rights in those
compositions. Id. at 6.
alleges that, in 2005, he signed a management contract and
recording agreement with artist Windell Edwards a/k/a Gyptian
(“Gyptian”) whereby Gyptian granted 20 percent
ownership in all of his copyrights created from 2005 to 2010
to Kingston Songs (“2005 contract”). Id.
at 7. After this contract was executed, Plaintiff entered
into several licensing agreements with Defendants involving
compositions owned by Plaintiff and his former partner, Ingo
Kleinhammer, now deceased, . Id. In 2006, VP
Records, Plaintiff and Mr. Kleinhammer entered into a
three-way licensing and publishing agreement for two albums
with artist Gyptian (“2006 contract”).
Id. Thereafter, in 2008, Gyptian and VP records
signed a recording agreement for the creation of several
albums, despite a clause in the 2006 contract prohibiting
Gyptian from signing overlapping recording agreements, and
another publishing agreement with VP Records involving the
same copyrights bound by the 2005 and 2006 contracts.
Id. at 8.
to Plaintiff, Defendants continue to claim sole ownership and
publishing rights to the compositions identified in the
Complaint without Plaintiff's authorization and despite
Plaintiff's repeated requests to discontinue the alleged
infringement. Id. at 1, 10. More specifically,
Plaintiff alleges that in 2014, Defendants began infringing
on a large assortment of his copyrights in connection with
those compositions he inherited in 2013 when Mr. Kleinhammer
passed away. Id. at 10. Further, Defendants continue
to collect revenue in connection with sound recordings and
compositions that Plaintiff solely owns despite his demands
to cease collecting such revenue. Id. at 11.
Plaintiff also alleges that ADA Music and Warner Music are
infringing upon Plaintiff's rights and collecting revenue
relating to certain music videos on YouTube that he wholly
owns. Id. at 11.
of the Complaint alleges claims against all Defendants for
copyright infringement in violation of 17 U.S.C. §§
106 and 501. Id. at 12-14. In Count II, Plaintiff
seeks an accounting from Defendants for allegedly failing to
credit and account on co-owned musical compositions and sound
recordings identified on Schedule B. Id. at 14. In
the last count, Count III, Plaintiff sues all Defendants for
contractual interference as it relates to Plaintiff's
2005 contract with artist Gyptian. Id. at 15.
Throughout the Complaint, Plaintiff also seeks injunctive
relief against the Defendants, preventing them from
exploiting his musical compositions without his authorization
and from collecting profits from performance revenues.
Id. at 1, 11, 12, 16.
Motion, Defendants seek to transfer this case to the District
Court for the Eastern District of New York or, alternatively,
to dismiss the Complaint for failure to state a claim.
See ECF No. . Specifically, Defendants seek to
enforce a forum-selection clause contained within a Release
and Settlement Agreement (“Settlement Agreement”)
signed by several of the Defendants and Plaintiff in a prior
lawsuit captioned VP Music Group, Inc., et. al. v. Kemar
McGregor, et. al., Case No. 1:11-cv-02619-JBW-MDG,
litigated in the Eastern District of New York (“the New
York lawsuit”). Id. Defendants argue that
Plaintiff's claims here arise in connection with or are
related to the matters resolved in the Settlement Agreement,
requiring the transfer of this lawsuit to that venue pursuant
to the mandatory language of the forum-selection clause.
Id. Alternatively, Defendants seek to dismiss the
Complaint for failure to state a claim. Id.
Plaintiff's Response in opposition and Defendants'
Reply timely followed. See ECF Nos.  and .
Concurrent with their Motion, Defendants also filed a Request
for Judicial Notice in support of the Motion to Transfer
and/or Dismiss, asking the Court to take judicial notice of
the docket and a stipulation filed in the New York lawsuit.
See ECF No. . Although the Court required that
Plaintiff provide a response to this Motion by May 5, 2017,
see ECF No. , Plaintiff has not responded or
otherwise objected to this request.
appropriate way to enforce a forum-selection clause pointing
to a state or foreign forum is through the doctrine of
forum non conveniens.” Atlantic Marine Const. Co.
v. U.S. Dist. Court for W. Dist. of Tex., 134 S.Ct. 568,
580 (2013). As the Supreme Court explained, 28 U.S.C. §
1404(a) “is merely a codification of the doctrine of
forum non conveniens for the subset of cases in
which the transferee forum is within the federal court
system.... For the remaining set of cases calling for a
nonfederal forum, § 1404(a) has no application, but the
residual doctrine of forum non conveniens has
continuing application.” Id. Generally,
“[t]o obtain dismissal for forum non
conveniens, ‘the moving party must demonstrate
that (1) an adequate alternative forum is available, (2) the
public and private factors weigh in favor of dismissal, and
(3) the plaintiff can reinstate his suit in the alternative
forum without undue inconvenience or prejudice.'”
GDG Acquisitions, LLC v. Gov't of Belize, 749
F.3d 1024, 1028 (11th Cir. 2014) (quoting Leon v. Millon
Air, Inc., 251 F.3d 1305, 1310-11 (11th Cir. 2001)). In
addition, the Supreme Court has held that the existence of a
forum-selection clause is essentially case-dispositive of the
section 1404(a) or forum non conveniens analysis.
See Atlantic Marine, 134 S.Ct. at 581; see
also GDG Acquisitions, 749 F.3d at 1028
(“an enforceable forum-selection clause carries
near-determinative weight” in the forum non
conveniens analysis). “When the parties have
agreed to a valid forum-selection clause, a district court
should ordinarily transfer the case to the forum specified in
that clause. Only under extraordinary circumstances unrelated
to the convenience of the parties should a §
1404(a) motion be denied.” Atlantic
Marine, 134 S.Ct. at 581.
determination stems, in part, from the recognition that a
valid forum-selection clause represents the parties'
ab initio agreement as to the most proper forum.
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31
(1988); Atlantic Marine, 134 S.Ct. at 581-82
(“When parties agree to a forum-selection clause, they
waive the right to challenge a preselected forum as
inconvenient or less convenient for themselves or their
witnesses, or for their pursuit of the litigation.”);
M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1,
16-17 (1972) (“[W]here it can be said with reasonable
assurance that at the time they entered the contract, the
parties to a freely negotiated private commercial agreement
contemplated the claimed inconvenience, it is difficult to
see why any such claim of inconvenience should be heard to
render the forum clause unenforceable.”). Ordinarily,
while the “burden of demonstrating that an appropriate
alternative forum exists is not a heavy one, ” it does
lie squarely “with the party seeking dismissal.”
Del Monte Fresh Produce Co. v. Dole Food Co., Inc.,
136 F.Supp.2d 1271, 1276 (S.D. Fla. 2001). Once established,
the existence of a valid forum-selection clause governing the
claims at issue shifts the burden to the non-movant to
establish that dismissal is improper. See Espie v.
Washington Nat. Ins. Co., No. 2:14cv6-MHT, 2014 WL
2921022, at *10 (M.D. Ala. June 27, 2014). Indeed, the party
seeking to avoid the forum-selection clause bears a
“heavy burden of proof” that the clause should be
set aside. Carnival Cruise Lines, Inc. v. Shute, 499
U.S. 585, 595 (1991).
considering a motion to dismiss for forum non
conveniens, as with a motion to dismiss for improper
venue under Federal Rule of Civil Procedure 12(b)(3), a court
must accept the facts in a plaintiff's complaint as true.
See, e.g., Matuszevoska v. Princess Cruise Lines,
Ltd., No. 06-21975-CIV, 2007 WL 7728281, at *2 (S.D.
Fla. Feb. 12, 2007). A court may “consider matters
outside the pleadings if presented in proper form by the
parties” in ruling on a motion to dismiss for forum
non conveniens. MGC Commc'ns, Inc. v. BellSouth
Telecomms., Inc., 146 F.Supp.2d 1344, 1349 (S.D. Fla.
2001); see also Grp. CG Builders & Contractors v.
Cahaba Disaster Recovery, LLC, 534 F.App'x 826,
829-30 (11th Cir. 2013) (affidavit in support of motion to
dismiss for forum non conveniens properly
considered); Webb v. Ginn Fin. Servs., 500
F.App'x 851, 854 (11th Cir. 2012) (consideration of
evidence outside the pleadings was appropriate on Rule
12(b)(3) motion). However, “[w]here conflicts
exist between allegations in the complaint and evidence
outside the pleadings, the court must draw all reasonable
inferences and resolve all factual conflicts in favor of the
plaintiff.” Malik v. Hood, No. 11-81090-CIV,
2012 WL 1906306, at *1 (S.D. Fla. May 25, 2012); see also
Belik v. Carlson Travel Grp., Inc., 26 F.Supp.3d 1258,
1263 (S.D. Fla. 2012) (considering motion to dismiss for
forum non conveniens, court “must draw all
reasonable inferences and resolve all factual conflicts in
favor of the plaintiff”).
the Atlantic Marine analysis presupposes a valid
forum-selection clause, “forum-selection clauses are
presumptively valid and enforceable [absent] a ‘strong
showing' that enforcement would be unfair or unreasonable
under the circumstances.” Krenkel v. Kerzner
Int'l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir.
2009) (citing Carnival Cruise Lines, 499 U.S. at
593-95); see also Bremen, 407 U.S. at 10
(forum-selection clauses prima facie valid and enforceable as
a matter of federal law). “A forum-selection clause can
only be invalidated on a showing of a ‘bad faith
motive' where the forum was chosen ‘as a means of
discouraging [parties] from pursuing legitimate
claims.'” Segal v. Amazon.com, Inc., 763
F.Supp.2d 1367, 1369 (S.D. Fla. 2011) (quoting Carnival
Cruise Lines, 499 U.S. at 595). Furthermore, “a
forum selection clause operates as a separate contract that
is severable from the agreement in which it is contained and
is enforceable, as long as the forum selection clause itself
was not included in the contract because of fraud.”
Sachs v. Bankers Life & Cas. Co., No.
11-81344-CIV, 2012 WL 1900033, at *2 (S.D. Fla. May 24, 2012)
(citing Rucker v. Oasis Legal Finance LLC, 632 F.3d
1231 (11th Cir. 2011) (“A forum selection clause is
viewed as a separate contract that is severable from the
agreement in which it is contained.”)). That is, a
forum selection clause is unenforceable only if “the
inclusion of that clause in the contract was the product of
fraud or coercion.” Lipcon v. Underwriters at
Lloyd's, London, 148 F.3d 1285, 1296 (11th Cir.
1998). “Choice clauses will be found unreasonable under
the circumstances and thus unenforceable only when: (1) their
formation was induced by fraud or overreaching; (2) the
plaintiff effectively would be deprived of its day in court
because of the inconvenience or unfairness of the chosen
forum; (3) the fundamental unfairness of the chosen law would
deprive the plaintiff of a remedy; or (4) enforcement of such
provisions would contravene a strong public policy.”
Lipcon, 148 F.3d at 1296 (citing Carnival Cruise
Lines, 499 U.S. at 594-95; Bremen, 407 U.S. at
validity, in analyzing the application of a forum-selection
clause, a court must determine whether the claim or
relationship at issue falls within the scope of the clause-by
looking to the language of the clause itself-and whether the
clause is mandatory or permissive. See Bahamas Sales
Assoc., LLC v. Byers,701 F.3d 1335, 1340 (11th Cir.
2012) (“To determine if a claim falls within the scope
of a clause, we look to the language of the clause.”);
Fla. Polk Cty. v. ...