United States District Court, D. Maryland
PAUL H. ALLRED et al., Plaintiffs,
INNOVATIVE BROKERAGE NETWORK, Defendant
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.
case arises from claims for breach of contract and unjust
enrichment. ECF 2 (Complaint), ¶¶
Plaintiffs Paul H. Allred and “American Health and
Finance” (“AHF”)allege that they entered into
a distribution contract in September 2014 with defendant
Innovative Brokerage Network (“IBN”), a Missouri
Corporation, to sell insurance in exchange for sales
commissions. Id. ¶¶ 3-4; see also
ECF 13-1 (“Distributor Agreement”). According to
plaintiffs, after about a year of doing business, IBN stopped
payment of accrued commissions on plaintiffs' insurance
sales. ECF 2, ¶¶ 6-8. This suit followed. Defendant
answered the Complaint and counterclaimed against plaintiffs
for breach of contract. ECF 7 at 3-4.
pending is defendant's motion to transfer the case to the
U.S. District Court for the Eastern District of Missouri,
under 28 U.S.C. § 1404(a). ECF 8. The motion is
supported by a memorandum. ECF 8-1 (collectively,
“Motion”). In support of the transfer, IBN
alleges that Allred signed a contract, a copy of which is
attached to the Motion (ECF 8-2, the “Letter”),
that contains a forum selection clause in which he
“irrevocably consents to personal jurisdiction and
venue in the state and federal courts located in St. Louis,
Missouri, with respect to any actions, claims, or proceedings
arising out of or in connection with [the] Letter.” ECF
8-2 at 2.
oppose the Motion, arguing that the Letter and its forum
selection clause do not apply to the case at hand. ECF 12
(Response); ECF 13 (Memorandum) (collectively,
“Opposition”). Rather, plaintiffs allege that the
Distributor Agreement, a copy of which is attached to the
Opposition (ECF 13-1), is the only contract applicable to
this case, and it does not contain a forum selection clause.
ECF 13 at 2. Defendant has replied. ECF 17
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall deny
Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist.
of Texas, __U.S.__, 134 S.Ct. 568, 580 (2013), the
Supreme Court determined that “§ 1404(a) and the
forum non conveniens doctrine provide appropriate
enforcement mechanisms” for forum selection clauses.
Section 1404(a) of Title 28 provides: “For the
convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to
any other district or division where it might have been
brought or to any district or division to which all parties
addressing a motion to transfer under § 1404(a), the
district court must “weigh in the balance a number of
case-specific factors.” Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29 (1988). These include: “(1)
the weight accorded to plaintiff's choice of venue; (2)
witness convenience and access; (3) convenience of the
parties; and (4) the interest of justice.” Tr. of
the Plumbers and Pipefitters Nat. Pension Fund v. Plumbing
Servs., Inc., 791 F.3d 436, 444 (4th Cir. 2015); see
also, e.g., Mamani v. Bustamante, 547 F.Supp.2d
465, 469 (D. Md. 2008); Cross v. Fleet Reserve Ass'n
Pension Plan, 383 F.Supp.2d 852, 856 (D. Md. 2005);
Lynch, 237 F.Supp.2d at 617. Other factors include
the “local interest in having localized controversies
settled at home” and the “appropriateness in
having a trial of a diversity case in a forum that is at home
with the state law that must govern the action.”
Stratagene v. Parsons Behle & Latimer, 315
F.Supp.2d 765, 771 (D. Md. 2004).
motion to transfer venue pursuant to § 1404(a), the
moving party bears the burden of showing, by a preponderance
of the evidence, that transfer to another venue is proper.
See Gilbert v. Freshbikes, LLC, 32 F.Supp.3d 594,
607 (D. Md. 2014); CoStar Realty Info., Inc. v.
Meissner, 604 F.Supp.2d 757, 770 (D. Md. 2009);
Lynch v. Vanderhoef Builders, 237 F.Supp.2d 615, 617
(D. Md. 2002). “In order to carry this burden, the
movant should submit, for example, affidavits from witnesses
and parties explaining the hardships they would suffer if the
case were heard in the plaintiff's chosen forum.”
Dow v. Jones, 232 F.Supp.2d 491, 499 (D. Md. 2002)
(citing Helsel v. Tishman Realty & Constr. Co.,
198 F.Supp.2d 710, 712 (D. Md. 2002)). As Judge Blake
observed in Dow, 232 F.Supp.2d at 713, where the
movant only provides “[m]ere assertions of
inconvenience or hardship, ” it will not have met its
cases, the plaintiff's choice of forum is presumptively
convenient, and “‘should rarely be
disturbed.'” Mamani, 547 F.Supp.2d at 469
(quoting Collins v. Straight Inc., 748 F.2d 916, 921
(4th Cir. 1984)); see also SAS Inst., Inc. v. World
Programming Ltd., 468 F. App'x 264, 266 (4th Cir.
2012). And, “[a] district court has discretion to
decide motions to transfer based on ‘an individualized,
case-by-case consideration of convenience and
fairness.'” United States ex rel. Salomon v.
Wolff, RWT-06-1970, 2017 WL 3129418, at *2 (D. Md. July
24, 2017) (quoting Stewart, 487 U.S. at 29)
(internal quotation marks and citation omitted).
the Supreme Court said in Atlantic Marine, 134 S.Ct.
at 581 (citation omitted), that “[t]he calculus changes
. . . when the parties' contract contains a valid
forum-selection clause, which “represents the
parties' agreement as to the most proper forum.” In
that circumstance, “‘a valid forum-selection
clause [should be] given controlling weight in all but the
most exceptional cases.'” Id. (alteration
in original) (quoting Stewart, 487 U.S. at 33).
presence of a valid forum-selection clause requires district
courts to adjust their usual § 1404(a) analysis in three
ways.” Id. “First, the plaintiff's
choice of forum merits no weight.” Id. Second,
the court “should not consider arguments about the
parties' private interests.” Id. at 582.
Third, where the plaintiff's original choice of venue
contravenes the forum selection clause, transfer to the
proper venue “will not carry with it the original
venue's choice-of-law rules.” Id.
however, only a “valid” forum selection clause is
given controlling weight. Id. at 581. “Forum
selection clauses are enforced only when they encompass the
claim at issue.” Light v. Taylor, 317 F.
App'x 82, 83 (2d Cir. 2009) (citation omitted). Where a
forum selection clause does not apply to the dispute in a
case, a motion to transfer is evaluated under the
conventional § 1404(a) factors. See, e.g.,
Steinmetz v. McGraw-Hill Glob. Educ. Holdings, LLC,
220 F.Supp.3d 596, 606 (E.D. Pa. 2016).
interpreting a forum selection clause, federal common law
generally applies. This is because a forum selection
agreement “implicate[s] the appropriate venue of a
court, ” which is a procedural matter governed by
federal rule and statutes. Albemarle Corp. v. AstraZeneca
UK Ltd., 28 F.3d 643');">628 F.3d 643, 650 (4th Cir. 2010). See also
Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509,
513 (9th Cir. 1988) (“[B]ecause enforcement of a forum
clause necessarily entails interpretation of the clause
before it can be enforced, federal law also applies to
interpretation of forum selection clauses.”). But
see Abbott Labs. v. Takeda Pharm. Co., 476 F.3d 421, 423
(7th Cir. 2007) (stating that the law of the jurisdiction
“whose law governs the rest of the contract”
determines the validity of a forum selection clause).
parties do not address what law should apply to the
interpretation of the documents presented. However, the
Letter clearly states that “this Letter shall be
governed by and construed in accordance with the laws of the
State of Missouri.” ECF 8-2 at 2. “The guiding
principle of contract interpretation under Missouri law is
that a court will seek to ascertain the intent of the parties
and to give effect to that intent.” Triarch Indus.,
Inc. v. Crabtree, 158 S.W.3d 772, 776 (Mo. 2005) (en
banc). “‘The intent of the parties is presumed to
be expressed by the natural and ordinary meaning of the
language in the contract.'” Campus Lodge of
Columbia, Ltd. v. Jacobson, 319 S.W.3d 549, 552
(Mo.Ct.App. 2010) (quoting Parker v. Pulitzer Pub.
Co., 882 S.W.2d 245, 249 (Mo.Ct.App. 1994)).
contract is unambiguous, neither parol nor extrinsic evidence
may be considered. Allison v. Flexway Trucking,
Inc., 28 F.3d 64, 67 (8th Cir. 1994). Rather, extrinsic
evidence may be used to aid interpretation only if a contract
is ambiguous. Press Machinery Corp. v. Smith R.P.M.
Corp., 727 F.2d 781, 784 (8th Cir. 1984).
“‘An ambiguity exists when there is more than one
reasonable interpretation which can be gleaned from the