United States District Court,

W.D. Tennessee,

Western Division.

NATIONAL BANKERS TRUST CORPORATION, a Tennessee corporation, Plaintiff,

v.

PEAK LOGISTICS LLC, an Indiana limited liability company; Summitt Trucking LLC, an Indiana limited liability company; Pacer Transportation Solutions Inc., an Ohio corporation; Zappos.com, Inc., a Delaware corporation; and Deckers Outdoor, Inc., Defendants,

v.

Andy Transport, Inc., Third Party Defendant.

 

No. 12–2268–STA–tmp.

June 17, 2013.

 

Kyle A. Young, Adams & Reese, LLP, Nashville, TN, for Plaintiff/Defendants/Third Party Defendant.

 

Randall J. Fishman, Richard S. Townley, Ballin Ballin & Fishman, Keith A. Aiken, National Bankers Trust, Memphis, TN, for Plaintiff.

 

Lewis Wilkinson Lyons, Todd B. Murrah, Glassman Edwards Wade & Wyatt, PC, Memphis, TN, Matthew Scott Mazza, Law Office of Matthew S. Mazza, Santa Barbara, CA, for Defendants.

 

ORDER DENYING DEFENDANT PEAK LOGISTICS LLC’s MOTION TO DISMISS

S. THOMAS ANDERSON, District Judge.

*1 Before the Court is Defendant Peak Logistics, LLC (“Peak”) Motion to Dismiss (D.E.# 105) filed April 22, 2013. Plaintiff National Bankers Trust Corp. (“NBT”) filed a Response (D.E.# 107) on April 30, 2013. Peak filed a Reply (D.E.# 113) on May 14, 2013. After seeking and receiving leave of the Court, NBT filed a Sur-reply (D.E.# 119) on May 28, 2013. For the reasons given herein, the Court DENIES WITHOUT PREJUDICE Peak’s Motion to Dismiss.

 

BACKGROUND

For purposes of the instant Motion, the Court accepts the following as true. FN1 NBT is engaged in the business of factoring for motor carriers. (First Am. Compl. ¶ 17, D.E. # 64.) NBT purchases its clients’ accounts receivables (owed by shippers or consigners using the clients’ carrier services) at a discount and takes a security interest in its clients’ assets (including present and after-acquired accounts receivables) securing the purchase price. (Id.) NBT remits a portion of the purchase price, known as the “advance rate,” at the time of purchase, reserving a portion of the purchase price as further security. (Id. ¶¶ 18–19.) NBT releases the reserved funds to its clients once the shipper pays the account. (Id. ¶ 19.)

 

FN1. On a motion to dismiss under Rule 12(b)(6), the Court will take the well-pleaded factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Saylor v. Parker Seal Co, 975 F.2d 252, 254 (6th Cir.1992).

 

Defendant Pacer Transportation Solutions Inc. (“Pacer”) brokered loads of shoes Defendant Zappos.com Inc. (“Zappos”) purchased from various suppliers. (Id. ¶ 26.) Pacer contracted with Defendant Summitt Trucking, LLC (“Summitt”) to carry some of these loads. (Id. ¶ 25.) Peak would then, in turn, broker some of these Summitt loads to other carriers. (Id. ¶ 24.)

 

On August 15, 2011, NBT and Third-party Defendant Andy Transport, Inc. (“Andy Transport”) entered into a factoring agreement. (Id . ¶ 20.) In October 2011, Peak began brokering shipments of Zappos’ shoes to Andy Transport. (Id. ¶ 21.) These loads included shipments of shoes Zappos purchased from Defendant Deckers Outdoor, Inc. (“Deckers”) (Id. ¶ 22.) Pursuant to their factoring agreement, Andy Transport sold the receivables generated by these brokered shipments to NBT. (Id. ¶ 23.) NBT promptly notified Peak of NBT’s purchase of the Andy Transport receivables and of Peak’s obligation to pay NBT. (Id.)

 

On November 23, 2011, and January 5, 2012, Andy Transport hauled two separate loads of Zappos’ shoes shipped from Deckers’ Caramillo, California facility. (Id. ¶¶ 29, 37.) Peak brokered both loads to Andy Transport. (Id.) However, unnamed persons absconded with both loads before they reached their destination. (Id.)

 

On January 17, 2012, after NBT made numerous inquiries to Peak regarding payment on open Andy Transport receivables, Peak informed NBT of the thefts and that it had two insurance claims for lost cargo pending. (Id. ¶ 3 9.) Peak further informed NBT it was holding payment on Andy Transport receivables due to the pending claims. (Id.)

 

NBT commenced this diversity action by filing a Complaint (D.E.# 1) in this Court on April 4, 2012, alleging causes of action against Peak, Summitt, Pacer, and Zappos for failure to pay a sworn account, fraudulent misrepresentation, negligent misrepresentation, unjust enrichment, and replevin. Peak filed a Third-party Complaint (D.E.# 37) on May 25, 2012, asserting causes of action against Andy seeking a declaratory judgment that Andy be required to indemnify Peak for NBT’s suit and alleging causes of action against Andy under theories of fraudulent representation, negligence, and breach of contract. NBT then filed a First Amended Complaint (D.E.# 64) on October 18, 2012, adding a cause of action for failure to pay a sworn account against a new defendant, Deckers. Pacer, Peak, Summit, and Zappos filed Answers to the First Amended Complaint (D.E .s # 67, 69, 68, and 70 respectively) on November 8, 2012. Andy filed an Answer (D.E.# 71) to Peak’s Third-party Complaint on November 12, 2012.

 

*2 On December 21, 2012, Deckers filed a Motion to Dismiss (D.E.# 79), arguing NBT failed to state a claim against it upon which the Court could grant relief. The Court denied Deckers’ Motion to Dismiss in an Order (D.E.# 101) dated April 8, 2013. Fourteen days later, on April 22, 2013, Peak filed the present Motion to Dismiss, asking this Court to dismiss NBT and Andy’s claims against Deckers, Pacer, and Zappos. Peak argues that a contract between it and Andy (“the Broker–Carrier Agreement”) bar Andy (and by extension NBT) from recovering as against Deckers, Pacer, and Zappos. NBT argues that Peak does not have standing to assert affirmative defenses on behalf of Deckers, Pacer, and Zappos; that Peak’s motion is untimely under the Federal Rules of Civil Procedure; and that Peak’s motion is without merit substantively because a contract between Peak and NBT cannot alter contractual rights between NBT and Deckers, Pacer, and Zappos.

 

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a claim “for failure to state a claim upon which relief can be granted.” FN2 When considering a Rule 12(b)(6) motion, the Court must treat all of the well-pleaded allegations of the complaint as true and construe all of the allegations in the light most favorable to the non-moving party. FN3 However, the Court will not accept legal conclusions or unwarranted factual inferences as true.FN4 “To avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with respect to all material elements of the claim.” FN5 Ordinarily, a reviewing court may not consider matters outside the pleadings on a motion to dismiss under Rule 12(b)(6).FN6

 

FN2. Fed.R.Civ.P. 12(b)(6).

 

FN3. Saylor, 975 F.2d at 254.

 

FN4. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987).

 

FN5. Wittsock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir.2003).

 

FN6. Rondingo, LLC v. Twp. of Richmond, 641 F.3d 673, 680–81 (6th Cir.2011).

 

However, a court may consider ‘exhibits attached [to the complaint], public records, items appearing in the record of the case and exhibits attached to a defendant’s motion to dismiss so long as they are referred to in the complaint and are central to the claims contained therein,’ without converting the motion to one for summary judgment.” FN7

 

FN7. Rondingo, L.L.C. v. Tw.p of Richmond, 641 F.3d 673, 680 (6th Cir.2011) (quoting Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir.2008)) (alteration in original).

 

Under Federal Rule of Civil Procedure Rule 8(a)(2), a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FN8 Although this standard does not require “detailed factual allegations,” it does require more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” FN9 In order to survive a motion to dismiss, the plaintiff must allege facts, if accepted as true, sufficient “to raise a right to relief above the speculative level” and to “state a claim to relief that is plausible on its face.” FN10 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” FN11

 

FN8. Fed.R.Civ.P. 8(a)(2).

 

FN9. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir.2012) (quoting Twombly, 550 U.S. at 555).

 

FN10. Twombly, 550 U.S. at 570.

 

FN11. Iqbal, 556 U.S. at 678.

 

ANALYSIS

Peak moves the Court to dismiss NBT and Andy’s claims against Deckers, Pacer, and Zappos. Before proceeding to the merits of the parties’ arguments, however, the Court determines this Motion is untimely.FN12

 

FN12. Although NBT raises a standing issue in its Response, the Court may decline to decide a standing issue when deciding on non-merits grounds. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584–85 (1999).

 

*3 Peak moves the Court pursuant to Rule 12(b)(6) for failure to state a claim. However, Rule 12(b) unequivocally states “[a] motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.” FN13 An answer is a pleading.FN14 To move for dismissal under Rule 12(b)(6), the movant must request judgment either in a pre-answer motion or in the answer itself.FN15 Peak filed an Answer more than five months before filing the instant motion to dismiss.FN16 By the plain language of Rule 12(b), Peak cannot file a motion to dismiss pursuant to Rule 12(b)(6) at this late date.

 

FN13. Fed.R.Civ.P. 12(b).

 

FN14. Fed.R.Civ.P. 7(a)(2).

 

FN15. Huisjack v. Medco Health Solutions, Inc. 496 F.Supp.2d 859, 861 (S.D.Ohio 2007).

 

FN16. See Answer to Amended Compl., D.E. # 69.

 

Ordinarily, when presented with a motion to dismiss asserting a failure to state a claim after filing an answer properly preserving such a defense, the Court will construe the motion to dismiss as one for judgment on the pleadings under Rule 12(c).FN17 However, the Court cannot do so here. Rule 12(c) allows a party to move for judgment on the pleadings “after the pleadings are closed[.]” FN18 The pleadings are not closed until every defendant has filed an answer.FN19 As Deckers has not yet filed an answer in this matter, the Court does not consider the pleadings closed, and a motion for judgment on the pleadings would be premature.

 

FN17. Huisjack, 496 F.Supp.2d at 861. See also Fed.R.Civ.P. 8(e) (“Pleadings must be construed so as to do justice.”)

 

FN18. Fed.R.Civ.P. 12(c).

 

FN19. Nationwide Children’s Hosp., Inc. v. D.W. Dickey & Son, Inc. Emps. Health & Welfare Plan, No. 2:08–cv–1140, 2009 WL 5247486, at *1 (S.D.Ohio Dec. 31, 2009) (citing Doe v. United States, 419 F.3d 1058, 1061 (9th Cir.2005)).

 

Therefore, the Court is left on the one hand to consider a motion to dismiss untimely filed after Peak has filed an answer, and on the other to consider a motion for judgment on the pleadings filed before the close of pleadings. Either way the Court chooses to construe Peak’s Motion, it is procedurally deficient. That being the case, the Court finds it appropriate to DENY Peak’s Motion to Dismiss WITHOUT PREJUDICE as to the substantive issues.

 

CONCLUSION

Because Peak filed this Motion to Dismiss after Peak filed an Answer to the operative Complaint, the Court determines the Motion to Dismiss is untimely. Because Decker’s has not yet filed an answer, the pleadings remain open, and the Court may not construe Peak’s Motion to Dismiss as a Motion for Judgment on the Pleadings. Therefore, the Court DENIES Peak’s Motion to Dismiss WITHOUT PREJUDICE as untimely.

 

IT IS SO ORDERED.

United States District Court, D. Oregon.

INFINITY AIR, INC., Plaintiff,

v.

ECHO GLOBAL LOGISTICS, INC., and Gizmo Trucking LLC, Defendants.

 

No. 3:13–cv–00307–MO.

June 20, 2013.

 

Nathan Gabriel Steele, The Steele Law Firm, Bend, OR, for Plaintiff.

 

Andrew R. Escobar, DLA Piper, LLP, Seattle, WA, for Defendants.

 

OPINION AND ORDER

MOSMAN, District Judge.

*1 Defendant Echo Global Logistics, Inc. (“Echo”) has filed a motion to dismiss or transfer [9] under Federal Rule of Civil Procedure 12(b)(3). The key issue before me is whether the Carmack Amendment to the Interstate Commerce Act applies to Echo and thus prohibits the enforcement of a forum selection clause in a contract between the parties. Based on my finding that the Carmack Amendment does not apply to Echo, I GRANT IN PART Echo’s motion to dismiss or transfer.

 

FACTS

Echo is an Illinois-based corporation that acts as a third party broker for its customers to negotiate and secure agreements with carriers or shippers for the pick-up and delivery of freight or cargo throughout the United States. (Leckow Decl. [11] ¶ 3.) The pick-up and shipment of a customer’s goods are undertaken by the freight haulers that Echo retains on behalf of its customers. (Id . [11].) Echo, however, is not involved in the physical pick-up, shipping, or delivery of the customer’s goods. (Id. [11].)

 

Echo requires its customers to execute an Application for Credit that sets forth the general terms and conditions applicable to Echo’s services. (Id. [11] ¶ 4.) This application includes two relevant provisions. First, it provides that the terms and conditions described on Echo’s website are incorporated into the application: “… I/we expressly agree that the additional terms and conditions listed at www.echo.com/tc are expressly incorporated into this Agreement.” (Id. [11] Ex. 1). The terms and conditions on Echo’s website, in turn, include the following forum selection clause:

 

Forum Selection and Choice of Law—Any claim, dispute or litigation relating to these Terms and Conditions, any shipment scheduled or tendered hereunder or through ECHO’s website, or relating to any and all disputes between ECHO and the enrolled Customer, Shipper and/or Consignee and/or Brokers for any enrolled Customer, Shipper and/or Consignee, shall be filed in the District Court of Cook County, Illinois or in the United States District Court for the Northern District of Illinois in Chicago and shall be subject to Illinois law.

 

(Id. [11] Ex. 2.) Second, the application includes an additional forum selection clause: “I/We agree that all disputes with Echo will be subject to jurisdiction and resolution in Chicago, IL.” (Id. [11] Ex. 1.)

 

On September 8, 2008, plaintiff Infinity Air, Inc. (“Infinity”) executed Echo’s credit application (the “Agreement”). (Leckow Decl. [11] Ex. 1.) Pursuant to that agreement, Echo retained the services of defendant Gizmo Trucking LLC (“Gizmo”) to ship an aircraft spare part from New Mexico to Washington for Infinity. (Compl. [1] ¶¶ 6, 8.) Infinity claims the part was damaged in route and asserts a single claim for relief under the Carmack Amendment against both Echo and Gizmo. (Id. [1] ¶¶ 10–11.)

 

LEGAL STANDARD

“A motion to enforce a forum selection clause is treated as a motion to dismiss pursuant to Rule 12(b)(3).” Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir.2009). Under Rule 12(b)(3), pleadings need not be accepted as true, and facts outside the pleadings may be considered. Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir.1996).

 

ANALYSIS

*2 Echo argues that by filing its complaint in this Court, Infinity has ignored the Agreement’s two forum selection clauses, which purportedly require that all disputes be resolved in Chicago, Illinois. (Mem. [10] at 2.) In response, Infinity contends that the Carmack Amendment prohibits the enforcement of forum selection clauses in cases like this one. (Resp. [12] at 1.) I agree with Echo: the Carmack Amendment does not apply to Echo, and the Agreement between the parties requires that this case be transferred to the United States District Court for the Northern District of Illinois.

 

I. Carmack Amendment

The Carmack Amendment is a part of the Interstate Commerce Act, which “provides the exclusive cause of action for interstate shipping contract claims.” White v. Mayflower Transit, LLC, 543 F.3d 581, 584 (9th Cir.2008). Infinity asserts a claim under 49 U.S.C. § 14706(a)(1), which provides as follows:

 

A carrier providing transportation or service … shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property and is providing transportation or service … are liable to the person entitled to recover under the receipt or bill of lading.

 

(emphasis added). According to Infinity, Echo is a carrier “providing transportation or services” such that its potential liability falls within § 14706(a)(1). Consequently, venue should be determined by the Carmack Amendment’s venue provision, which provides as follows:

Civil Actions.—

 

(1) Against delivering carrier.—A civil action under this section may be brought against a delivering carrier in a district court of the United States or in a State court. Trial, if the action is brought in a district court of the United States is in a judicial district, and if in a State court, is in a State through which the defendant carrier operates.

 

(2) Against carrier responsible for loss.—A civil action under this section may be brought against the carrier alleged to have caused the loss or damage, in the judicial district in which such loss or damage is alleged to have occurred.

 

Id. § 14706(d) (emphasis added). Therefore, because defendants operate in Oregon, Infinity claims that venue is proper under § 14706(d)(2). (Compl. [1] ¶ 2.)

 

Furthermore, as Infinity correctly points out, one of the “inalienable requirements” of the Carmack Amendment “is that the shipper be permitted to sue in certain venues when a dispute arises.” Smallwood v. Allied Van Lines, Inc., 660 F.3d 1115, 1121 (9th Cir.2011). Therefore, where § 14706 applies, it prohibits enforcement of forum selection clauses.

 

The problem for Infinity here is that Echo cannot be held liable under § 14706. As the language emphasized above makes clear, § 14706 imposes liability on a carrier for all losses relating to goods it transports in interstate commerce. It imposes no liability on brokers, and brokers and carriers are distinct under the Act. A “broker” is defined as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by a motor carrier for compensation.” 49 U.S.C. § 13102(2). In contrast, a “motor carrier” is defined as “a person providing motor vehicle transportation for compensation.” Id. § 13102(14). Applying these definitions to the facts at hand, Echo is a broker. Rather than actually providing motor vehicle transportation for compensation, Echo arranges for transportation by motor carriers for compensation.FN1 Therefore, the Carmack Amendment does not apply to Echo and, as a result, cannot prohibit enforcement of the Agreement’s forum selection clauses.

 

FN1. The definition of “transportation” does not alter my analysis. Section 13102(23)(B) states that “transportation” includes “services related to [the] movement [of passengers or property], including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, handling, packing, unpacking, and interchange of passengers and property.” If the definition of “motor carrier” incorporated the definition of “transportation” and extended to any person “arranging for [the movement of] … property,” brokers would cease to exist under the Act. I decline to read the definition of “motor carrier” in a way that renders the definition of “broker” meaningless. Applying the canon of statutory construction noscitur a sociis, I interpret the general term “arranging for” to be similar to the other specific terms in the series, which all relate to the conduct of the actual transporter. Because Echo did not “arrange for” the movement of property in this more limited sense, it is a broker rather than a motor carrier under the Act.

 

II. Forum Selection Clauses

*3 Without interference from the Carmack Amendment, I now take up the Agreement’s forum selection clauses. In the Ninth Circuit, the enforceability of a forum selection clause is a matter of federal procedural law. Manetti–Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 513 (9th Cir.1988). “Moreover, because enforcement of a forum selection clause necessarily entails interpretation of the clause before it can be enforced, federal law also applies to the interpretation of forum selection clauses.” Id.

 

In The Bremen v. Zapata Off–Shore Co., the Supreme Court, sitting in admiralty, held that forum selection clauses are prima facie valid and should not be set aside unless the party challenging their enforcement can show they are “ ‘unreasonable’ under the circumstances.” 407 U.S. 1, 10 (1972). The Supreme Court and Ninth Circuit have construed this exception narrowly:

 

A forum selection clause is unreasonable if (1) its incorporation into the contract was the result of fraud, undue influence, or overweening bargaining power; (2) the selected forum is so “gravely difficult and inconvenient” that the complaining party will “for all practical purposes be deprived of its day in court,” or (3) enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought.

 

Argueta, 87 F.3d at 325 (citations omitted). This is clearly the appropriate standard for admiralty cases.

 

In Stewart Organization, Inc. v. Ricoh Corp., the Supreme Court addressed the question of whether to apply The Bremen in diversity cases. 487 U.S. 22 (1988). The Court disagreed with “the [lower] court’s articulation of the relevant inquiry as ‘whether the forum selection clause in this case is unenforceable under the standards set forth in The Bremen.’ “ Id. at 28. Instead, the Supreme Court held that a federal court sitting in diversity should treat a request to enforce a forum selection clause as a motion to transfer venue under 28 U.S.C. § 1404(a). Therefore, although “[t]he presence of a forum-selection clause … will be a significant factor that figures centrally in the district court’s calculus,” under § 1404(a), the district court must “weigh in the balance a number of [other] case-specific factors.” Id. at 29.

 

Wright and Miller maintain that

 

The combined rule of these cases is that a federal court sitting in admiralty jurisdiction should apply a forum selection clause if it is “reasonable,” but a federal court sitting in diversity or federal question jurisdiction should take the clause into account only as one element in the balancing test required by Section 1404(a).

 

14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3803.1 (3d ed.2013). In my view, this would be the proper approach. Wright and Miller note, however, that “many lower federal courts have failed to distinguish between the approach taken in [The Bremen and its progeny] and that taken in Stewart.” Id.

 

*4 Although the Ninth Circuit has not fully discussed this issue, it falls in the camp that has chosen to apply the standard articulated in The Bremen even to non-admiralty cases. See Doe 1, 87 F.3d at 325; Argueta, 87 F.3d at 325; Spradlin v. Lear Siegler Mgmt. Servs. Co., 926 F.2d 865, 867 (9th Cir.1991); Manetti–Farrow, 858 F.2d at 513; Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 280 (9th Cir.1984). I therefore analyze the Agreement’s forum selection clauses under The Bremen.FN2

 

FN2. In any event, the result in this case would likely be the same under § 1404(a).

 

Infinity does not allege (1) that the forum selection clauses were incorporated into the Agreement through fraud, undue influence, or overweening bargaining power; (2) that the Northern District of Illinois is so “gravely difficult and inconvenient” that transfer would deprive Infinity of its day in court; or (3) that enforcement would contravene a strong public policy of the State of Oregon. Instead, Infinity argues that the forum selection clauses apply only to litigation related to credit and payment issues. Accordingly, because this is not a credit dispute, the forum selection clauses in the Agreement are irrelevant. This argument is based primarily on the fact that the Agreement is styled as an Application for Credit. (Resp. [12] at 9–13.)

 

I disagree. Under the federal common law of contracts,

 

A written contract must be read as a whole and every part interpreted with reference to the whole, with preference given to reasonable interpretations. Contract terms are to be given their ordinary meaning, and when the terms of a contract are clear, the intent of the parties must be ascertained from the contract itself. Whenever possible, the plain language of the contract should be considered first. The fact that the parties dispute a contract’s meaning does not establish that the contract is ambiguous; it is only ambiguous if reasonable people could find its terms susceptible to more than one interpretation.

 

Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir.1999) (citations omitted). Giving the language of the forum selection clauses their ordinary meaning, the intent of the parties is clear. The document itself states that “all disputes with Echo will be subject to jurisdiction and resolution in Chicago, IL.” (Leckow Decl. [11] Ex. 1) (emphasis added). Even were this clause, standing alone, ambiguous, the forum selection clause from Echo’s website, which is expressly incorporate into the Agreement, would remove any ambiguity. It states that

Any claim, dispute or litigation relating to … any shipment scheduled or tendered hereunder …, or relating to any and all disputes between ECHO and the enrolled Customer, Shipper and/or Consignee and/or Brokers for any enrolled Customer, Shipper and/or Consignee, shall be filed in [Chicago, Illinois] and shall be subject to Illinois law.

 

(Id. [11] Ex. 2.) This clause is not limited to credit disputes. It specifically covers all claims relating to shipments and all disputes between Echo, customers, shippers, consignees, and brokers. Therefore, based on the clear terms of the Agreement and the absence of even alleged facts that would render the forum selection clauses unreasonable under The Bremen, I find that the Agreement’s forum selection clauses are enforceable.FN3

 

FN3. Neither Echo nor Infinity has addressed the relevance of Gizmo to my analysis here, and Gizmo has not yet appeared in this action.

 

CONCLUSION

*5 For the foregoing reasons, Echo’s motion to dismiss or transfer [9] is GRANTED IN PART. This case is transferred to the United States District Court for the Northern District of Illinois. In addition, Echo’s motion to strike Infinity’s unauthorized sur-reply [16] is GRANTED based on Infinity’s failure to comply with Local Rule 7–1(e)(3).

 

IT IS SO ORDERED.