Opinion
Civil Action No. 3:99CV-193-S
June 10, 1999.
MEMORANDUM OPINION AND ORDER
This matter is before the court on motion of the defendant, Jani-King of Louisville, Inc. ("Jani-King"), to dismiss the action on the ground that a forum selection clause in the franchise agreement in issue requires that the action be brought in Dallas County, Texas. Jani-King has filed a copy of the agreement as an exhibit to its motion:
Section 11.10: THE PARTIES AGREE AND INTEND THIS INSTRUMENT TO BE EXECUTED, INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. JURISDICTION AND VENUE IS DECLARED TO BE EXCLUSIVELY IN DALLAS COUNTY, IN THE STATE OF TEXAS.
This clause in the contract is emphasized by the use of capital letters. Attention is not drawn to any other paragraph in the agreement is such a manner. Thus, it cannot be said that the clause was buried in this lengthy document.
The plaintiffs, Randy C. and Bret V. Cochran ("the Cochrans"), contend that the clause should not be enforced since they allege that there was fraud in the inducement to enter into the agreement. They cite no authority for this proposition. In fact, such a contention has been rejected in the Sixth Circuit. In Moses v. Business Card Express, Inc., 929 F.2d 1131 (6th Cir. 1991), the United States Court of Appeals noted that "[a]t least since the Supreme Court's decision in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), such [forum selection] clauses are `prima facie valid and should be enforced unless enforcement is shown by the resisting party to be "unreasonable" under the circumstances.'" In determining that the forum selection clause in the franchise agreement in issue had not been nullified by the plaintiffs' claims of fraud, deceit and misrepresentation, the court held
In rejecting this contention, the court followed settled law that unless there is a showing that the alleged fraud or misrepresentation induced the party opposing a forum selection clause to agree to inclusion of that clause in the contract, a general claim of fraud or misrepresentation as to the entire contract does not affect the validity of the forum selection clause. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n. 14, 94 S.Ct. 2457 n. 14, 41 L.Ed.2d 270 (1974) . . .Moses, 929 F.2d at 1138.
The Cochrans also make the bald assertion that the evidence and witnesses are located in Kentucky and Southern Indiana, and that removing the case to Texas would create an undue hardship. They provide no documentation, affidavits, or any other evidence to support this statement. However, as noted by the court in Moses, 929 F.2d at 1138-39, "Unless all parties reside in the selected jurisdiction, any litigation will be more expensive for some than for others. This is not a reason for declaring such clauses invalid." The plaintiffs have failed to offer any evidence to compel this court to decline to enforce the forum selection clause in this agreement.
The Cochrans do, alternatively, move for transfer to Texas rather than dismissal of the action.
This action will be transferred, inasmuch as the plaintiffs have moved for transfer in lieu of dismissal of the case.
Motion having been made, and for the reasons set forth herein above and the court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the motion of the defendant, Jani-King of Louisville, Inc., to dismiss the action is GRANTED, and this action is TRANSFERRED TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION for all further proceedings. The clerk of court shall transfer the record in this matter. There being no reason for delay in its entry, this is a final order.