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ASAP Auto Group, LLC v. Marina Dodge, Inc.

United States District Court, S.D. Mississippi, Northern Division

February 18, 2014

ASAP AUTO GROUP, LLC AND JOSEPH C. MARTIN, PLAINTIFFS
v.
MARINA DODGE, INC., AMERICAN AUTO STOCK, INC. D/B/A MARINA MITSUBISHI, JOHN GABRIELE, SONIA ROMANTINI, TONY GABRIELE, AND TRACY GENTRY, DEFENDANTS

For ASAP Auto Group, LLC, Joseph C. Martin, Plaintiffs: Eduardo Alberto Flechas, LEAD ATTORNEY, Ronald E. Stutzman, Jr., FLECHAS & ASSOCIATES, PA, Jackson, MS.

For Marina Dodge, Inc., Tony Gabriele, Sonia Romantini, John Gabriele, American Auto Stock, Inc., doing business as Marina Mitsubishi, Defendants: J. Wyatt Hazard, LEAD ATTORNEY, DANIEL, COKER, HORTON & BELL, Jackson, MS; Peter J. McKelroy, DANIEL, COKER, HORTON & BELL - Jackson, Jackson, MS.

OPINION

Page 574

MEMORANDUM OPINION AND ORDER

Tom S. Lee, UNITED STATES DISTRICT JUDGE.

There have been filed in this cause a motion by plaintiffs ASAP Auto Group, LLC and Joseph C. Martin to remand pursuant to 28 U.S.C. § 1446, and a motion by defendants Marina Dodge, Inc., American Auto Stock, Inc. d/b/a Marina Mitsubishi (Marina Mitsubishi), John Gabriele, Sonia Romantini and Tony Gabriele to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure or, in the alternative, to transfer venue to the United States District Court for the Western District of New York pursuant to the provisions of 28 U.S.C. § § 1404 or 1406. Because the court, having considered the parties' memoranda of authorities and accompanying attachments on the motion to remand, concludes that the motion to remand should be granted, the court does not reach the motion to dismiss or, alternatively, to transfer.

Plaintiffs, both citizens of Mississippi, filed the present action in the Circuit Court of Lauderdale County, Mississippi, against Marina Dodge, Marina Mitsubishi, John Gabriele, Sonia Romantini and Tony Gabriele, all citizens of New York, and against Terry Gentry, a citizen of Michigan, asserting claims for breach of contract, libel, fraud and slander, and intentional interference with business relations. Plaintiffs demanded $4,000,000 in actual damages and $1,000,000 in punitive damages. Defendants Marina Dodge, Marina Mitsubishi, John Gabriele, Sonia Romantini and Tony Gabriele removed the case to this court pursuant to 28 U.S.C. § 1446 [1]

Page 575

on the basis of diversity jurisdiction under 28 U.S.C. § 1332.[2]

Plaintiffs timely moved to remand, contending that removal was improvident inasmuch as the contract that is the subject of their complaint includes a forum selection clause which mandates venue in Lauderdale County, Mississippi. The forum selection clause on which plaintiffs rely states:

Jurisdiction Venue and Litigation: The parties agree that the Laws of the State of Mississippi will govern the terms of this agreement and relationship between the parties. This agreement was negotiated in Lauderdale County, Mississippi, which will constitute the proper venue for jurisdiction on any legal dispute. In conjunction, any and all reasonable and necessary attorney's fees, court costs and other related expenditures incurred by ASAP during prelitigation, mediation, trial litigation, post litigation, and any court appeals shall be the sole responsibility of the client.

Plaintiffs submit that the forum selection clause establishes Lauderdale County as the exclusive venue for litigation and trial of any action between the parties to the agreement, and that since there is no federal court located in Lauderdale County, Marina Dodge and Marina Mitsubishi are precluded from removing the case to this court or from consenting to removal by their codefendants.

Defendants argue first in response that plaintiffs' motion to remand must be denied since the forum selection clause on which the motion is based is not valid or enforceable. More particularly, they contend that the contracts on which the complaint is based, and in which the forum selection clauses are contained, are not valid since the contracts were never executed by plaintiffs.[3] On this issue, defendants explain that prior to executing proposed contracts received from plaintiffs, John Gabriele, in his capacity as president of Marina Dodge and Marina Mitsubishi, wrote in certain provisions that were material to his execution of the contracts and then returned the contracts to ASAP. Defendants assert that " ASAP never executed and returned any of the subject contracts," and they submit that consequently, the purported contracts and the forum selection provision contained therein are not valid. However, defendants do not deny that Gabriele signed the contracts containing the forum selection clause, and which are the basis of plaintiffs' complaint herein. Moreover, plaintiffs have submitted with their rebuttal on the remand motion copies of the contracts with John Gabriele's revisions executed by both Gabriele, on behalf of Marina Dodge and Marina Mitsubishi, and by Joseph Martin on behalf of ASAP. The evidence thus belies defendants' position.

The Fifth Circuit has held that " mandatory forum selection clauses ... are presumed to be valid and enforceable, so that the party seeking to bar enforcement bears the heavy burden of demonstrating that the clause is unreasonable under the circumstances." New South Equipment Mats, LLC v. Keener, Civil Action No.3:13CV162TSL-JMR, 989 F.Supp.2d 522, 2013 WL 5946371, at *3 (S.D.Miss. Nov. 5, 2013) (citing Afra ...


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