United States District Court, D. Oregon
P. Laurick and Ross C. Van Ness, Kilmer, Voorhees &
Laurick, P.C., Attorneys for Plaintiff.
K. Edling, Houser & Allison, APC, Of Attorneys for
OPINION AND ORDER
H. SIMON UNITED STATES DISTRICT JUDGE
Summit Foods Inc., (“Summit”) brings this case
against Viking Packaging Technologies, Inc.,
(“Viking”) alleging various breach of contract,
breach of warranty, misrepresentation, and fraudulent
inducement claims arising from Plaintiff's purchase of a
piece of machinery from Defendant. Before the Court is
Defendant's motion to dismiss or transfer venue to the
Eastern District of Wisconsin under 28 U.S.C. §§
1406(a) or 1404(a). Defendant argues that a mandatory forum
selection clause in the parties' contract requires that
the parties litigate this dispute in Sheboygan County
Wisconsin, where the Eastern District of Wisconsin is
located. For the reasons discussed below, Defendant's
motion is denied.
Dismissal or Transfer of Venue Under Section 1406(a)
28 U.S.C. § 1406, a district court, if it determines
that a case has been filed in a district or division where
venue is improper, can either dismiss the action or transfer
it to a proper venue. Normally, 28 U.S.C. § 1391 governs
venue and venue is proper in any “judicial district in
which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of the
property that is the subject of the action is
situated.” 28 U.S.C. § 1391(b)(2). But 28 U.S.C.
§ 1441 governs venue of removed actions. See Polizzi
v. Cowles Magazines, Inc., 345 U.S. 663, 665 (1953).
“Section 1441(a) expressly provides that the proper
venue of a removed action is ‘the district court of the
United States for the district and division embracing the
place where such action is pending.'” Id.
at 666. Actions that are first filed in state court and then
removed to federal court are not “brought” in
federal court under 28 U.S.C. § 1406. Id.
Transfer of Venue Under Section 1404(a)
28 U.S.C. § 1404(a), a district court may transfer a
civil action to any district in which the parties could have
originally brought the case or to any district to which the
parties have consented. See 28 U.S.C. § 1404(a).
When ruling on a motion to transfer venue under §
1404(a), a district court must find both that the requested
venue is one in which the case might have originally been
brought and that the transfer is appropriate, taking into
account the convenience of the parties and the interest of
justice. See First Interstate Bank v. VHG Aviation,
LLC, 291 F.Supp.3d 1176, 1179 (D. Or. 2018). This
requires “an individualized case-by-case consideration
of convenience and fairness” weighing many different
factors. Jones v. GNC Franchising, Inc.,
211 F.3d 495, 498 (9th Cir. 2000) (quotation marks omitted).
These factors may include:
The location where the relevant agreements were negotiated
and executed, (2) the state that is most familiar with the
governing law, (3) the plaintiff's choice of forum, (4)
the respective parties' contacts with the forum, (5) the
contacts relating to the plaintiff's cause of action in
the chosen forum, (6) the differences in the costs of
litigation in the two forums, (7) the availability of
compulsory process to compel attendance of unwilling
non-party witnesses, and (8) the ease of access to sources of
Id. at 498-99.
courts must “weigh the relevant factors and decide
whether, on balance, a transfer would serve ‘the
convenience of parties and witnesses' and otherwise
promote ‘the interest of justice.'” Atl.
Marine Constr. Co. v. U.S. Dist. Court for W. Dist.
Tex., 571 U.S. 49, 62-63 (2013) (quoting 28 U.S.C.
§ 1404(a)). But “[t]he ordinary analysis of a
motion to transfer venue under § 1404(a) changes . . .
when the parties have formed a contract that includes a valid
forum-selection clause.” First Interstate
Bank, 291 F.Supp.3d at 1179. Courts give a valid forum
selection clause “controlling weight in all but the
most exceptional cases.” Atl. Marine Constr.
Co., 571 U.S. at 63 (quoting Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J.
concurring)). A contractual forum selection clause is
“prima facie valid and should be enforced unless
enforcement is shown by the resisting party to be
‘unreasonable' under the circumstances.”
Bremen v. Zapata Offshore Co., 407 U.S. 1, 10
law governs the interpretation of a forum selection clause in
a diversity case. See Manetti-Farrow, Inc., v. Gucci Am.,
Inc., 858 F.2d 509, 513 (9th Cir. 1988). Whether a forum
selection clause is mandatory or permissive is a question of
contract interpretation. See Hunt Wesson Foods, Inc. v.
Supreme Oil Co., 817 F.2d 75, 77 (9th Cir. 1987). When
interpreting a contractual provision such as a forum
selection clause, “the plain language of the contract
should be considered first.” Klamath Water Users
Protective Ass'n v. Patterson, 204 F.3d 1206, 1210
(9th Cir. 1999). Just because the parties dispute a
contract's meaning does not mean that the contract is
ambiguous: “it is only ambiguous if reasonable people
could find its terms susceptible to more than one
text of the forum selection clause is mandatory, courts must
enforce the clause, absent exceptional circumstances, and
venue will lie in the chosen forum only. See Hunt
Wesson, 817 F.2d at 77 (quoting Pelleport
Inv'rs, Inc. v. Budco Quality Theaters, Inc., 741
F.2d 273 280 (9th Cir. 1984)). To be mandatory, a forum
selection clause must contain wording suggesting that the
parties intended to designate the specified forum as the
exclusive forum. See N. Cal. Dist. of Laborers
v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1037
(9th Cir. 1995); Docksider, Ltd. v. Sea Tech., Ltd.,
875 F.2d 762, 764 (9th Cir. 1989). When the forum selection
clause specifies only one permissible jurisdiction, however,
“the clause will generally not be enforced without some
further language indicating the parties' intent to make
jurisdiction exclusive.” N. Cal. Dist. of
Laborers, 69 ...