United States District Court, W.D. Washington, Tacoma
B. Leighton, United States District Judge.
MATTER is before the Court on Defendants WNA Inc. and Novolex
Holdings LLC's Motion to Dismiss for Lack of Personal
Jurisdiction and/or Transfer Venue under 28 U.S.C. 1404.
[Dkt. # 18]. The case involves competing forum selection
clauses. Defendants argue that their clauses (requiring venue
in South Carolina and Texas) are mandatory and are
enforceable over Plaintiff Vaporpath's permissive clause
(providing for venue here).
agreed to purchase disposable coffee cup lids from WNA.
Vaporpath placed its first purchase order in August 2016.
Vaporpath claims it included a copy of its terms and
conditions with that and every subsequent purchase order. Its
terms and conditions expressly rejected any additional or
different terms and required venue in Washington, in courts
having jurisdiction “at its address:”
BUYER EXPRESSLY OBJECTS TO AND EXPRESSLY REJECTS ANY
PROVISIONS ADDITIONAL TO OR DIFFERENT THAN THE TERMS
HEREOF. . . . [A]ll questions concerning the validity of this
agreement, shall be governed by the laws of the State of
Washington. Any suit, action or proceeding brought [under
this contract] shall be commenced and maintained
solely in state or federal courts having jurisdiction at the
[Dkt. # 19, ex. 2] (emphasis added). In September 2016 WNA
sent two shipments of lids to Vaporpath, along with order
confirmations. WNA claims that it attached its own terms and
conditions to those first two transactions. It conditioned
its own acceptance of Vaporpath's order on
Vaporpath's agreement to WNA's terms, which, it
claims, required venue in Texas:
Acceptance of Buyer's order is expressly made
conditional on assent to the terms and conditions
set forth herein . . . . [The contract] shall be governed and
construed in accordance with the laws of the State of Texas.
Seller and Buyer specifically agree that any legal action
brought relating to goods purchased or relating to this
contract will be brought and tried in Texas.
All objections to venue are hereby waived by
[Dkt. # 19, ex. 1] (emphasis added). In June 2018, Novolex
purchased WNA. Vaporpath continued to buy lids from WNA.
Novolex added a link to its terms and conditions to WNA's
order confirmations in October 2018. Its terms and conditions
required venue in South Carolina:
Any claim, action, suit or other proceeding initiated under
[this contract] may be asserted, brought, prosecuted
and maintained only in federal or state court in the
State of South Carolina having jurisdiction
over the subject matter thereof, and the parties hereto
hereby waive any and all right to
object to the laying of venue in any such court[.]
[Dkt. # 20, ex. 4] (emphasis added).
parties had ongoing disputes about the quality of the lids
during their three-year business relationship. Vaporpath
claims that the lids it bought were defective, that they fell
off cups, had no ventilation holes, and were contaminated
with scrap plastic. Vaporpath sued for breach of contract and
warranty in August 2019.
move to dismiss Vaporpath's Complaint for lack of
personal jurisdiction and/or to transfer venue under 28
U.S.C. §1404(a). They argue that their forum selection
clauses are mandatory while Vaporpath's is only
permissive. They argue that because there was no conflict
between Defendants' mandatory clauses and Vaporpath's
permissive clause, each forum selection clause became part of
the parties' contract. Defendants argue that the case
should be dismissed because Vaporpath waived its right to
claim that this Court has personal jurisdiction over them by
consenting to their mandatory forum selection clauses.
Alternatively, they argue that this case should be
transferred to the district court of South Carolina, or
Texas, because Defendants' forum selection clauses
require venue in those courts.
argues that its clause is mandatory and that it requires the
parties to litigate all lawsuits in this Court (or in Kitsap
County Superior Court, which also has jurisdiction on
Bainbridge Island). It argues that its forum selection clause
(and not Defendants) became part of the contract through the
parties' course of dealing. Alternatively, Vaporpath
argues that neither party's forum selection clause became
part of the contract because the conflicting clauses
“knocked each other out” of the contract under
the UCC. It argues that the Court has personal jurisdiction
over Defendants. The forum selection clauses do not change
that because they are not part of the contract and agreeing
to venue is not the same as saying no other court has
personal jurisdiction. It also argues that Defendants'
motion to transfer should be denied because their forum
selection clauses were knocked out of the contract and
Vaporpath is entitled to its choice of forum.