United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (MOTION TO DISMISS)
Henry E. Hudson United States District Judge
THIS MATTER is before the Court on Defendant 52 Eighty Partners, LLC's ("Defendant") Motion to Dismiss or, in the Alternative, to Transfer (ECF No. 3), filed on January 11, 2016. Defendant contends two contracts contain forum selection clauses that preclude further litigation in this Court. Accordingly, Plaintiff asks this Court either to dismiss Plaintiffs claims pursuant to Federal Rule of Civil Procedure 12(b)(3) or to transfer the claims pursuant to 28 U.S.C. § 1404. Plaintiff SJW Concrete, LLC ("Plaintiff) opposes the motion and argues this Court should retain all claims. For the reasons set forth below, the Court will deny Defendant's motion with leave to renew.
On December 16, 2015, Plaintiff filed the instant Complaint against Defendant in the Circuit Court for the County of Chesterfield. On January 6, 2016, Defendant timely removed to this Court. In Count I of its Complaint, Plaintiff seeks judgment confirming an alleged settlement agreement entered into by the parties. In Count II-which Plaintiff pleads in the alternative-Plaintiff attempts to pursue a breach of contract claim related to two contracts primarily involving construction in Junction, Texas ("First Contract") and Rocksprings, Texas ("Second Contract") (collectively, "Underlying Contracts").
On April 7, 2015, the parties entered into the First Contract, which was "a cost plus fixed fee agreement... with respect to the construction of Site TX920 at S Highway 377 in Junction, Texas." (Compl. ¶ 3, ECF No. 1-1.) The First Contract also covered "audits to multiple other constructed or partially constructed tower sites in Texas." (Id.) That same day, the parties executed the Second Contract. (Id. ¶ 4.) Similar to the First Contract, the Second Contract was "a cost plus fixed fee agreement... with respect to the Site TX911 constructed at 54 S.D. 45981 Rocksprings, Texas." (Id.) The Second Contract also included "audits to multiple other constructed or partially constructed tower sites in Texas." (Id.)
Eventually, a dispute arose between the parties regarding the services provided by Plaintiff under the Underlying Contracts, as well as the amount due to Plaintiff for those services. (Id. ¶ 5.) In September 2015, Plaintiff filed several liens on properties in Texas related to the dispute. (Id. ¶¶ 6-7.) On October 14, 2015, Plaintiffs representatives and Defendant's CEO met at Plaintiffs offices in Chesterfield, Virginia in an attempt to resolve the dispute. (Id. ¶ 8.) According to Plaintiff, the parties successfully negotiated a resolution and "agreed upon all essential, material terms of a proposed settlement, including a partial payment of $112, 500.00." (Id. ¶ 9.)
Approximately two weeks later, a settlement agreement, promissory note, and lien releases were forwarded to Defendant "for the purposes of memorializing the settlement." (Id. ¶ 10.) Plaintiff states that the documents accurately reflected and memorialized all material terms of the parties' settlement during the October 14, 2015 meeting. (Id. ¶ 11.) Defendant "failed and refused to execute the settlement documents and thereby memorialize the parties' compromise of the [d]ispute." (Id. ¶ 12.) Because Defendant refused to execute the documents, this suit followed.
In Count I, Plaintiff pursues a confirmation of settlement claim, contending Defendant's CEO had full authority to act on Defendant's behalf at the October 14, 2015 meeting and the parties "entered into a complete, final, and binding settlement agreement, and the parties' intention to compromise was objectively manifested." (Id. ¶¶ 14-15.) Plaintiff asks this Court to enter judgment against Defendant in the amount of $175, 000 and confirm that the parties have settled the dispute as memorialized in the settlement documents.
Alternatively, Plaintiff seeks liability for breach of the Underlying Contracts in Count II. (Id. ¶¶ 17-22.) Plaintiff seeks $275, 000 in damages for the alleged breach. Defendant now moves to dismiss Plaintiffs claims or, in the alternative, transfer this action to the Northern District of Georgia. (Mem. Supp. Mot. Dismiss, or, Alternative Transfer ("Def.'s Mem.") 1, ECF No. 4.)
II. STANDARD OF REVIEW
A party appropriately seeks dismissal based on a forum selection clause through a Federal Rule of Civil Procedure 12(b)(3) motion. See Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006). In addressing a motion pursuant to Rule 12(b)(3), a court may consider evidence outside of the pleadings. Id. at 549-50. If a forum selection clause renders venue improper, a court may either dismiss the action or transfer it pursuant to 28 U.S.C. § 1406. W. Refining Yorktown, Inc. v. BP Corp. N. Am., Inc., 618 F.Supp.2d 513, 515 (E.D. Va. 2009).
"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" 28 U.S.C. § 1404(a). Provided that the plaintiffs claims could initially have been brought in the transferee forum, "[t]he decision whether to transfer an action pursuant to § 1404(a) 'is committed to the sound discretion of the district court.'" BHP Int'l lnv., Inc. v. Online Exch., Inc., 105 F.Supp.2d 493, 498 (E.D. Va. 2000) (quoting VerosolB.V. v. Hunter Douglas, Inc., 806 F.Supp. 582, 591 (E.D. Va. 1992)).
Plaintiffs Complaint asserts both confirmation of settlement and breach of contract claims. Defendant seeks to dismiss or, in the alternative, transfer each, contending that the Underlying Contracts' forum selection clauses require Plaintiff to bring this entire action in the courts of Georgia. In ruling on the motion at hand, ...