United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, District Judge.
This matter comes before the court on defendant and cross-defendant, Nippon Yusen Kaisha, Inc.'s ("NYK") motions to dismiss. Dkt. ## 34, 36. NYK is connected to plaintiff, Pwrtech LLC ("Pwrtech" or "plaintiff"), in this matter through a web of other entities that it alleges were acting as plaintiff's agents. According to NYK, plaintiff's agents agreed, on behalf of plaintiff, to a forum selection clause that specifies Tokyo, Japan as the exclusive forum for the adjudication of any disputes arising from the shipment of goods at issue in this litigation. Pursuant to that forum selection clause, NYK contends that dismissal is required. Alternatively, NYK argues that dismissal is required because plaintiff has failed to join Shenzen Lucky Logistics, Ltd., a party which it contends is necessary to the action. The court finds the motions deficient in several respects. NYK has asked the court to make certain inferential leaps without adequate support in the record and without adequate citation to authority. For the reasons stated below, the court denies the motions, but grants leave to re-file.
During the 2012 summer, plaintiff contracted to import 368 containers of laptop adapters from China from its suppliers Henv Leader (Hong Kong) Co., Ltd. and Tommox Industrial Co., Ltd. Dkt. # 18 (Holyas Decl.) ¶ 5. Plaintiff then contacted defendant Binex Line Corp. ("Binex") to effectuate the importation of the goods. Id. ¶ 6. In late June or early July 2012, plaintiff became aware that the goods had arrived at the Port of Tacoma, and upon inspection, discovered that the goods were severely damaged. Id. ¶ 7. It appears that additional entities were involved in the importation of these goods, but how these entities came to be involved and the exact terms of their contracts, if any, remain unclear. Id. ¶ 9; Dkt. #37, p. 3.
Upon arrival of the goods, plaintiff received a copy of two bills of lading issued by non-party Shenzen Lucky Logistics, Ltd. ("Shenzhen"). Dkt. # 18 ¶ 8, Ex. A. Plaintiff then made efforts to acquire all governing bills of lading from Binex. Id. ¶ 9. In response, Binex provided plaintiff with additional copies of the Shenzhen Bills of Lading and another illegible document. Id. It turns out that defendant NYK also issued a Sea Waybill for the goods, but plaintiff claims that it did not learn of this fact until the instant motions were filed. Id. The Shenzhen Bills of Lading and the NYK Sea Waybill reveal that the goods were transported on the Duesseldorf Express, which plaintiff contends is owned and operated by defendant Hapag-Lloyd (America), Inc. ("Hapag"). Dkt. # 19, ¶ 3.3. Plaintiff maintains that "to this day" it is unclear what role Binex, Shenzhen, NYK and Hapag played in importing and allegedly damaging its goods. Dkt. # 18, ¶ 9.
Binex disputes that it was acting as plaintiff's agent and no party has submitted any contracts or communications between plaintiff and Binex. Dkt. # 31 ¶ 3.2. Binex also disputes that Shenzhen was acting as its agent in China and also disputes that it was a party to the NYK Sea Waybill (despite being listed as a consignee). Id. ¶¶ 3.3, 3.6. Shenzhen, although apparently a significant player in the importation of these goods, has not been joined by the plaintiff in this action. Additionally, NYK has submitted no evidence of communications with plaintiff, either directly or indirectly, prior to the commencement of this lawsuit.
In its First Amended Complaint ("FAC"), plaintiff alleges negligence, breach of fiduciary duty, breach of contract, and breach of implied contract against Binex, and violation of the Carriage of Goods by Sea Act ("COGSA") against NYK and Hapag-Lloyd (America), Inc. ("Hapag"). Dkt. # 19 (FAC) ¶¶ 4.1-9.4. Binex, in turn, has filed crossclaims against NYK and Hapag seeking indemnity and contribution. Dkt. # 31.
NYK seeks dismissal of the claims asserted against it by plaintiff Pwrtech and cross-claimant Binex. NYK contends that dismissal is required due to the existence of a forum selection clause in the governing contract specifying Tokyo, Japan as the exclusive forum for disputes arising out of the shipment of goods at issue and, alternatively, contends that dismissal is required due to plaintiff's failure to join Shenzehn, an indispensible party.
A. DISMISSAL BASED ON THE FORUM SELECTION CLAUSE
1. NYK's Agency Argument
Federal law governs the validity of a forum selection clause. Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 513 (9th Cir. 1988). The enforceability of forum selection clauses in international agreements is controlled by the Supreme Court's decision in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). In Bremen, the Court first held that forum selection clauses are prima facie valid and should not be set aside unless the party challenging enforcement of such a provision can show it is "unreasonable' under the circumstances." 407 U.S. at 10. The Supreme Court has construed this exception narrowly. A forum selection clause is unreasonable if (1) its incorporation into the contract was the result of fraud, undue influence, or overweening bargaining power, Carnival Cruise Lines, 499 U.S. at 591; Bremen, 407 U.S. at 12-13; (2) the selected forum is so "gravely difficult and inconvenient" that the complaining party will "for all practical purposes be deprived of its day in court, " Bremen, 407 U.S. at 18; or (3) enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought. Id. at 15.
Accordingly, here, it is plaintiff's burden to establish the invalidity of the forum selection clause. Bremen, 407 U.S. at 10. Although plaintiff has failed to carry its burden at this time, plaintiff has raised sufficient questions which cause the court to believe that it may have the ability to do so upon the completion of discovery. Plaintiff has submitted evidence that it had absolutely no knowledge of the NYK Sea Waybill and, in turn, no knowledge of the forum selection clause prior to the commencement of this suit. Dkt. # 18, ¶ 9. See Royal Ins. Co. v. Sea-Land Serv. Inc., 50 F.3d 723, 727 (9th Cir. 1995) (finding that adequate notice is required for the terms of bills of lading). NYK has submitted no evidence to contradict this claim and the court has been unable to independently locate any such evidence in the record. Indeed, although NYK claims that it issued the Sea Waybill, it has submitted no evidence which shows that it provided the Sea Waybill to plaintiff or anyone else ...