United States District Court, W.D. Washington, Tacoma
KEY EQUIPMENT FINANCE, a subdivision of KeyBank National Association, an Ohio Corporation, assignee of ORACLE CREDIT CORPORATION, Plaintiff,
BARRETT BUSINESS SERVICES, INC., a Washington Corporation, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR
FORUM NON CONVENIENS DKT. #9
B. Leighton, United States District Judge
MATTER is before the Court on Defendant Barrett Business
Services, Inc.'s Motion to Dismiss or Stay for Forum
Non Conveniens. Dkt. #9. This dispute concerns
Barrett's alleged failure to make payments under an
agreement establishing a payment plan for a suite of cloud
services designed to assist with administrative functions.
Although Barrett entered the payment plan agreement with
Oracle Credit Corporation (“OCC”), which assigned
its interest to Plaintiff Key Equipment Finance (“Key),
the cloud services themselves were obtained from Oracle
America, Inc., (“Oracle”) pursuant to another
agreement. Barrett claims that both of these agreements are
part of a single transaction and seeks to enforce the forum
selection clause in the contract with Oracle against Key.
Key, in opposition, contends that the forum selection clause
cannot be enforced because it is part of a separate contract
to which Key and its predecessor were never parties.
following reasons, the Court GRANTS Barrett's Motion to
Dismiss for Forum Non Conveniens.
a Maryland company headquartered in Vancouver, WA, is in the
business of establishing co-employment relationships between
small and medium-sized companies and assuming responsibility
for their administrative functions, such as payroll.
Barrett's payroll and invoicing needs are therefore quite
complicated. To address these needs, Barrett sought to make
use of Oracle's human capital management (HCM) cloud
system. Barrett states that it explained how complex and
atypical its business structure and requirements are and
Oracle assured Barrett that its services would be customized
to meet Barrett's needs. Oracle's implementation
partner, KBACE Technologies, Inc., apparently made similar
assurances and provided Barrett with an estimate of how much
the system would cost to implement. KBACE was later acquired
by Cognizant Worldwide Limited and Cognizant Technology
February 28, 2018, Barrett contracted with Oracle for a suite
of cloud services and with KBACE for implementation. The
resulting Cloud Services Agreement (“CSA”)
between Barrett and Oracle contains the following forum
selection clause: “. . . each party agrees to submit to
the exclusive jurisdiction of, and venue in, the courts in
San Francisco or Santa Clara counties in California in any
dispute arising out of or relating to this Agreement.”
Dkt. #1-1 at 7. An additional Ordering Document
(“Order”) was executed the same day and included
a list of prices for the services Barrett had contracted for,
which totaled $15, 128, 787.20. Dkt. #1-2 at 3. The Order
also contained a section entitled “Oracle
Financing” that stated: “Oracle agrees that if,
concurrent with the delivery of this Ordering Document, you
deliver Oracle Financing Contract #92667 . . . that is
satisfactory to Oracle Financing, then payment terms in
[Contract #92667] shall replace the payment terms of this
Ordering Document to the extent specified in [Contract
#92667].” Id. at 8. Both the CSA and the Order
state that payment is due within 30 days of the invoice date.
Dkt. #1-1 at 2; Dkt. #1-2 at 5.
did indeed execute Contract #92667, or the Payment Plan
Agreement (“PPA”), on February 28. The PPA
describes itself as an agreement “entered into by
Customer and Oracle Credit Corporation (“OCC”)
for payment of Customer's acquisition of the System,
” which is “acquired from Oracle
Corporation.” Dkt. #1-2 at 2. The PPA strains to
emphasize that it is an “independent” contract
creating an obligation to pay that “shall not be
subject to any set-off, recoupment, claim or defense for any
reason, including . . . any claim(s) against the Supplier,
” a.k.a. Oracle. Dkt. #1-2. The PPA also incorporates a
separate Payment Schedule (“Schedule”), which
divides Barrett's obligations into 19 separate payments
due between May 1, 2018, and December 1, 2022. Dkt. #1-3.
These payments add up to the same amount due under the Order:
$15, 128, 787.20. Id. The Schedule states that it
“replaces [Barrett's] payment obligations when due
under the Order to Supplier to the extent of the System Price
listed above and Customer agrees to pay the System Price on
an installment basis.” Id.
April 20, 2018, OCC assigned its rights under the PPA and
Schedule to Key Equipment Finance. Dkt. #1-4. The letter of
assignment is on Oracle letterhead and states that
“Assignee assumes none of Supplier's obligations
under the Order.” Id. It also provides that
all payments should be remitted to OCC's corporate trust.
months after executing these agreements, Barrett became
dissatisfied with the HCM system promised by Oracle. KBACE
also informed Barrett that implementing the system would cost
millions more than originally estimated. Meanwhile, Barrett
began missing its payments under the Schedule, resulting in a
warning letter from Key on October 6, 2018. Dkt. #1-5. Key
followed this up with another letter in November informing
Barrett that it was in default, accelerating the remaining
payments. Dkt. #1-6.
January 2, 2019, Barrett sued Oracle and the Cognizant
entities in the Superior Court of San Francisco
County. Dkt. #9, Ex. A. The complaint alleges
causes of action for negligent misrepresentation, breach of
contract, and rescission of the contracts with Oracle and the
Cognizant entities. Id. at 13-19. Key then filed
this lawsuit against Barrett on February 14, 2019, to enforce
the payment obligations in the PPA and Schedule. Dkt. #1.
doctrine of forum non conveniens allows a court to
dismiss a case outright when a foreign or state forum would
be substantially more convenient. Atl. Marine Const. Co.
v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49,
60 (2013). The question is “whether defendants have
made a clear showing of facts which establish such oppression
and vexation of a defendant as to be out of proportion to
plaintiff's convenience, which may be shown to be slight
or nonexistent.” Bos. Telecommunications Grp., Inc.
v. Wood, 588 F.3d 1201, 1206 (9th Cir. 2009) (quoting
Dole Food Co. v. Watts, 303 ...