United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS OR TRANSFER AND
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Sonny Joe Sanders
(“Sanders”), Teras Breakbulk Ocean Navigation
Enterprises, LLC (“Teras Ocean”), Teras Cargo
Transport (America), LLC (“Teras Cargo”), and
Teras Chartering, LLC's (“Teras Chartering”)
(collectively “Defendants”) motion to dismiss or,
in the alternative, to transfer under 28 U.S.C. §
1404(a) (Dkt. 18). The Court has considered the pleadings
filed in support of and in opposition to the motion and the
remainder of the file and hereby grants the motion in part
and denies it in part for the reasons stated herein.
April 14, 2017, Versant filed a complaint against Defendants
asserting causes of action for breach of contract, breach of
performance guarantees, and fraud. Dkt. 1.
27, 2017, Defendants moved to dismiss or, in the alternative,
transfer, arguing that the contract at issue contained
mandatory forum-selection clauses requiring the dispute to be
heard in Florida. Dkt. 15.
14, 2017, Versant filed an amended complaint adding another
breach of contract claim and requesting the appointment of a
receiver. Dkt. 16 (“FAC”).
26, 2017, Defendants moved to dismiss or, in the alternative,
to transfer. Dkt. 18. On July 14, 2017, Versant moved for an
extension of time to respond and file a cross motion. Dkt.
20. On July 17, 2017, Defendants responded to Versant's
motion. Dkt. 22. On July 18, Defendants filed a reply to its
motion to dismiss, arguing that the Court should grant the
motion because Versant failed to respond. Dkt. 24. On July
21, 2017, Versant filed a substantive response to
Defendants' motion. Dkt. 25. Later that day, Defendants
filed a reply and moved to strike Versant's untimely
response. Dkt. 29.
is a Delaware company that provides factoring services to its
clients. FAC, ¶¶ 2, 18. Factoring is a type of
credit arrangement where credit is extended to companies
under stricter than normal terms. Id. ¶ 17. On
October 30, 2015, Versant and Teras Cargo entered into a
factoring agreement and a security agreement. Id.,
Exh. E. In the factoring agreement, Versant agreed to
purchase some of Teras Cargo's accounts receivable in
exchange for money in advance of payment on the particular
account. Id., Exh. E. The factoring agreement
contained a forum selection clause that provides in relevant
part as follows:
The parties hereto mutually agree that any legal action
relating to or arising from the Factoring Agreement, the
Security Agreement, the Account Agreements or the Performance
Guaranty (or Guaranties), if any, or relating in any way to
the factoring relationship between Versant and the Seller and
Guarantor(s), shall be maintained only in (a) state courts of
Palm Beach County, Florida, or (b) the United States District
Court serving Palm Beach County, Florida (except that Versant
shall have the right to bring any action or proceeding
against Seller or its property in the courts of any other
jurisdiction that Versant deems necessary or appropriate, in
Versant's sole discretion, to realize upon the Accounts
Receivable or any other collateral of Seller subject to
Id. ¶ 11.
security agreement, Versant obtained an interest in all
property owned or acquired by Teras Cargo. Id. This
agreement does not contain a forum selection clause.
November 20, 2015, Versant and Teras Ocean entered into the
identical factoring and security agreements. FAC, Exhs. A, B.
Sanders also entered into agreements personally guaranteeing
the performance of Teras Cargo and Teras Ocean. Id.,
Exhs. C, G. The performance guarantees include the same forum
21, 2016, Versant and Teras Charting entered into the
identical factoring and security agreements. FAC, Exh. D.
Sanders, as CEO of Teras Cargo, sent Versant a letter
confirming a cross collateralization of the “invoices,
reserves, assets and/or funds” of ...