United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION
M.
Hannah Lauck United States District Judge
This
matter comes before the Court on two motions filed by
Defendant AGY AIKEN LLC ("AGY"): (1) the Motion to
Dismiss for Lack of Personal Jurisdiction and/or Improper
Venue, or in the Alternative, Motion to Transfer Venue (the
"Motion to Dismiss or Transfer"), (ECF No. 3); and,
(2) the Motion to Dismiss, or in the Alternative, to Stay the
Proceedings and Compel Arbitration (the "Motion to
Compel Arbitration"), (ECF No. 5). Plaintiff Quality
Plus Services, Inc. ("QPS") has responded to
AGY's motions, (ECF Nos. 7, 8), and AGY has replied, (ECF
Nos. 10, 11). Accordingly, the motions are ripe for
adjudication. The Court dispenses with oral argument because
the materials before it adequately present the facts and
legal contentions necessary to resolve the motions. For the
reasons that follow, the Court will grant the Motion to
Compel Arbitration and deny the Motion to Dismiss or Transfer
as moot. The Court will dismiss the action without prejudice.
I.
Procedural and Factual Background
A.
Procedural History
QPS
initially filed suit in Virginia state court, alleging two
causes of action: (1) breach of contract; and, (2) unjust
enrichment. AGY removed the case to this Court on the basis
of diversity jurisdiction[1] and filed two motions seeking
dismissal: (1) the Motion to Dismiss or Transfer, which
challenges personal jurisdiction and venue; and, (2) the
Motion to Compel Arbitration, which argues that a valid and
enforceable arbitration clause requires that the Court compel
arbitration. QPS responded to both of AGY's motions, and
AGY replied.
B.
Factual Background and the Agreement to
Arbitrate[2]
AGY
operates a plant in Aiken, South Carolina. In 2014 or 2015,
AGY decided to modify the plant's "E-Wing."
That project required, among other things, "demolishing
three existing furnaces, extensive steel repairs to a large
hallway/'tunner area[J and new construction of three
internal floors." (Compl. ¶ 7, ECF No. 1-1.) AGY
did not issue a single contract for the entire project and
instead contracted with QPS to perform substantial portions
of it, for which the parties contracted through individual
purchase orders. In all, AGY issued at least nineteen
separate purchase orders to QPS. After QPS received a
purchase order from AGY, QPS would issue an invoice. Three
invoices allegedly remain outstanding and unpaid. QPS's
suit arises from those three invoices.
AGY
offers a declaration from its Purchasing Leader, Tom Kessing,
which states that certain "Terms and Conditions"
accompanied each purchase order. (Kessing Decl.
¶ 6, ECF No. 6-1.) QPS presents nothing to rebut this
sworn statement. (See Starratt Decl. 9, ECF No. 8- 1
("The 'AGY Terms and Conditions of Purchase'
were a separate attachment to the emails.").) The scope
of the Terms and Conditions is as follows:
1. Acceptance. By accepting or
filling this order or rendering services under this order,
the Seller agrees to these terms and conditions, which shall
prevail over an inconsistent provisions in any form or other
paper submitted by Seller except as expressly set forth
herein. These terms and conditions of purchase are applicable
to all purchase orders and are the only terms and conditions
applying to a sale of seller's goods and services except
those which additionally relate to (i) price, (ii) quantity,
(iii) delivery schedule, (iv) separate warranties, (v)
payment terms and (vi) description and specifications of the
goods and services, and Buyer hereby expressly rejects any
terms and conditions proposed by Seller which are different
from or in addition to the terms contained herein, unless
expressly assented to in writing by Buyer. Agreements for
sales created by Seller's acceptance on these terms shall
be deemed to have been formed in the state of South Carolina,
regardless of the location of Seller.
(AGY Terms and Conditions of Purchase ¶ 1, ECF No. 6-2.)
The Terms and Conditions provide the following arbitration
clause (the "Arbitration Clause"):
13. Disputes. Any dispute or cause
of action the Buyer and Seller may have with one another
arising out of this agreement shall be finally settled by
arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and in
accordance with the substantive laws of the state of South
Carolina, excluding the conflicts of law provisions of such
laws. Judgment upon the award rendered by the arbitrators may
be enforced in any court having jurisdiction thereof. The
arbitration tribunal shall consist of three arbitrators, of
whom one shall be nominated by Buyer, one by Seller, and a
third, who shall serve as chairman, shall be chosen by the
two party-nominated arbitrators. The place of arbitration
shall be Atlanta, Georgia. The award of the arbitrators shall
be final and binding. The parties waive any right to appeal
the arbitrage award, to the extent a right of appeal may be
lawfully waived. Each party retains the right to seek
judicial assistance to compel arbitration, to obtain interim
relief pending arbitration, and to enforce the award of the
arbitrators, including the final award.
(Id. ¶ 13.)
The
record does not explicitly indicate whether QPS objected to
the Terms and Conditions or the inclusive Arbitration Clause.
QPS, however, acknowledges that it did not discuss any of the
Terms and Conditions with AGY. Nonetheless, the parties
disagree about whether the Terms and Conditions apply to the
purchase orders at issue.
II.
Analysis
The
Court finds that QPS's claims are subject to binding
arbitration pursuant to the Federal Arbitration Act
("FAA")[3] because: (1) the parties agreed to the
Terms and Conditions; and, (2) the scope of the Arbitration
Clause covers the disputes between QPS and AGY. Accordingly,
the Court will grant the Motion to Compel Arbitration and
dismiss the action without prejudice. Because the Court will
dismiss this action for improper venue based on the binding
Arbitration Clause, the Court will deny the Motion to Dismiss
or Transfer as moot.
A.
The Federal ...