Free Order on Motion to Dismiss/Lack of Jurisdiction - District Court of Colorado - Colorado

Case 1:03-cv-02669-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Case No. 03-cv-02669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP.- CALIFORNIA, a Utah corporation, Defendant/Counterclaimant, and BIG-D CONSTRUCTION CORP., a Utah corporation, BIG-D CORPORATION, a Utah corporation, BIG-D CAPITAL CORP., a Wyoming corporation, and Does 1-100, inclusive, Defendants

BIG-D CONSTRUCTION CORP.- CALIFORNIA, a Utah corporation, BIG-D CONSTRUCTION CORP., a Utah corporation, and Does 1-100, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant.

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MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation, FEDERAL INSURANCE COMPANY, an Indiana corporation, FRICK COMPANY, a Pennsylvania corporation, n/k/a YORK INTERNATIONAL CORPORATION, a Delaware corporation, and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

ORDER DISMISSING CLAIMS AGAINST THIRD PARTY DEFENDANT FRICK COMPANY, N/K/A YORK INTERNATIONAL CORPORATION, FOR IMPROPER VENUE

THIS MATTER comes before the Court on Frick Company' motion to dismiss (#101) s the third party claims (#93) of Marelich Mechanical Co., Inc., d/b/a University Marelich Mechanical (" UMM" Having considered the motion, the responses (#103, #104), the replies ). (#110, #111), and the attachments thereto, the Court finds and concludes as follows. I. Jurisdiction The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1332. II. Procedural Background In its Third Party Complaint (#93), UMM asserts claims for indemnification and declaratory relief under California law against Frick Company, now known as York International Corporation (referred to herein as " York" UMM alleges that pursuant to purchase orders, York ). supplied UMM with certain air-handling machinery and equipment that was installed at a

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construction project in California. UMM contends that pursuant to these purchase orders, York must indemnify UMM if there is a finding that UMM is liable to Big-D Construction Corp. or anyone else in this litigation. York moves to dismiss these claims pursuant to Fed. R. Civ. P. 12(b)(2) and (3) for lack of personal jurisdiction and for improper venue. UMM argues that the Court has personal jurisdiction over the claims against York and that venue is proper. III. Issues Presented The Court must determine whether to dismiss UMM' third party claims either for lack of s personal jurisdiction or for improper venue. IV. Analysis In ordinary circumstances, the Court would first address whether it can exercise personal jurisdiction over York. For purposes of this motion, however, it is not necessary to resolve such issue. UMM contends that the Court has personal jurisdiction over York. Assuming that it does, the determination of the appropriate venue for resolution of of the Third Party Claims disposes of the entire motion. York moves to dismiss UMM' claims for improper venue on the basis that the parties s agreed to a California forum in the purchase order documents giving rise to the claims. UMM responds that York has not met its burden of establishing the existence of an enforceable forum selection clause because: (1) the affiant, Samuel Howard, lacks personal knowledge to lay a proper foundation for the admissibility of the purchase order documents because he did not sign them, and such documents are inadmissible hearsay; (2) the purchase order agreement was entered into between UMM and Frick, not UMM and York, and there is no evidence as to who 3

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Frick is or that Frick and York are the same; and (3) the June 12, 2001 Purchase Order, which references Attachment " in the Purchase Order Conditions, bears the notation " A" Delete ­See Supplement #1,"suggesting that Attachment " has no effect. In reply, York provides an A" affidavit from Stephen Bixler, the Controller for " York Refrigeration/Frick,"who attests that he executed the purchase order documents. Pursuant to Fed. R. Civ. P. 12(b)(3), a party may move to dismiss claims on the basis of improper venue when a forum selection clause selects another forum for litigation. See K & V Scientific Co., Inc. v. Bayerische Motoren Werke Aktiengesellschaft, 314 F.3d 494, 497 (10th Cir. 2002). In considering a Rule 12(b)(3) motion, a court is not required to accept the pleadings as true and may consider matters outside of the pleadings. See Murphy v. Schneider National, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004); see also Wright & Miller, FEDERAL PRACTICE & PROCEDURE, § 1352. When there is conflicting evidence, a court construes the facts in the light most favorable to the non-moving party. See Murphy, 362 F.3d at 1138. However, interpretation of a forum selection clause presents a question of law. See K & V Scientific Co., Inc., 314 F.3d at 497; Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 956 (10th Cir. 1992). As a preliminary matter, the Court considers UMM' objections to the admissibility of the s purchase order documents filed by York. Because the Court construes any conflicting evidence in the light most favorable to UMM, it is not necessary to address the admissibility of the purchase order documents under the Federal Rules of Evidence. Regarding these documents, there is no conflicting evidence to construe in UMM' favor. At no time does UMM dispute that the s purchase order documents are authentic, and it presents no evidence that they are not. Indeed, if 4

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UMM has no factual basis to contest these documents' authenticity, it has an obligation under Fed. R. Civ. P. 11(b)(4) not to contest the same. As to UMM' assertion that there is no evidence who Frick is or whether Frick and York s are the same, the Court rejects such assertion. UMM' Amended Third Party Complaint alleges s that Frick Company is now known as York International Corporation. UMM also alleges that its claims against York derive from " purchase orders pursuant to which Frick supplied its the equipment to the Project." Assuming these allegations are true, then UMM has no factual basis for arguing to the contrary in its response brief. See Fed. R. Civ. P. 11(b)(4). As to UMM' assertion that the forum selection provision might have been deleted from s the purchase order documents, the Court rejects it as well. The purchase order documents are many and self-explanatory. These include: (1) a Purchase Order dated June 12, 2001, between UMM and Frick (now York), which bears a notation " Delete ­See Supplement #1 (initialed SB 11/21/01);"(2) Supplement No. 1, dated November 12, 2001, which " modifies the provisions of this purchase order"and references Attachment " ; (3) Attachment " initialed by SB on A" A," November 21, 2001 and another person on December 13, 2001, which contains a forum selection provision; (4) Amendments to the Purchase Order (Schedule D); and (5) two memoranda of understanding dated June 15, 2001, and November 14, 2001. The language of the purchase order documents is plain. The notation on the June 12, 2001 Purchase Order does nothing more than supercede the June 12, 2001 Purchase Order with Supplement No. 1. Such Supplement incorporates by reference Attachment " which provides: A," APPLICABLE LAW AND JURISDICTION ­California law will apply to all disputes arising out of this Agreement. This Agreement shall be deemed to be made and entered into in the State of 5

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California which shall be the sole jurisdiction for any disputes arising hereunder. Therefore, Attachment " which is the last in a series of documents executed by York and A," UMM, remains operative. Indeed, UMM has provided no affidavit or other evidence to suggest that it is not. The forum selection clause in Attachment " is mandatory. See Milk " More, Inc. v. A" N' Beavert, 963 F.2d 1342, 1346 (10th Cir. 1992). This Court must enforce it unless UMM shows that it would be unreasonable to do so. See id. UMM has made no such showing. Instead, it simply argues that it would be move convenient for it to litigate its claims in Colorado, and that litigating the claims here would be in the " interests of fairness, judicial economy and consistency." These arguments are not sufficient to override a mandatory forum selection clause. Therefore, the District of Colorado is not the proper venue for UMM' claims against York, and the Court s dismisses such claims. C. Motion for Ruling Also pending is York' motion (#144) asking the Court to rule on its motion to dismiss. s Such motion is moot, and is denied. D. Appeal from Magistrate Judge' Ruling s York also appeals (#145) from the Magistrate Judge' Minute Order (#140) which did not s exempt York from certain deadlines in this case. Because the Court is granting the motion to dismiss, this appeal is moot and is denied. IT IS THEREFORE ORDERED that: (1) York' Motion to Dismiss (#101) is GRANTED. UMM' claims against York s s

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are DISMISSED for improper venue based upon the parties'forum selection agreement. (2) York' motion (#144) requesting a ruling on its motion to dismiss is DENIED, as s moot. (3) York' appeal (#145) from the Magistrate Judge' Minute Order (#140) is s s DENIED, as moot. (4) The caption shall be amended to delete reference to Frick Company, n/k/a York International Corporation. Dated this 19th day of January, 2006 BY THE COURT:

Marcia S. Krieger United States District Judge

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