United States District Court, N.D. Mississippi, Oxford Division
matter is before the Court on Defendant Metal Impact
South's motion to transfer venue. Doc. 6. Having
considered the matter the Court finds that the motion should
CECA contracted with Metal Impact to manufacture metal parts
for CECA. CECA alleges that Metal Impact breached that
contract by producing defective parts. CECE brought this
breach of contract action in the Circuit Court of Tippah
County. Metal Impact timely removed, premising jurisdiction
on diversity of citizenship.
Impact now moves to transfer venue to the United States
District Court for the Northern District of Illinois. Metal
Impact claims that the contract at issue contains an
enforceable choice of forum clause designating that court as
the venue for all actions arising under the contract.
See Supply Agreement, Doc. 6-1 at 3, ¶ 13. CECA
filed an untimely response, and the matter is now ripe for
may enforce a forum-selection clause through a motion to
transfer venue under 28 U.S.C. § 1404(a). Atl.
Marine Const. Co. v. U.S. Dist. Court for W. Dist of
Texas, 571 U.S. 49, 59, 134 S.Ct. 568, 579, 187 L.Ed.2d
487 (2013). Section 1404(a) provides that "For the
convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to
any other district or division where it might have been
brought or to any district or division to which all parties
have consented." Traditionally, the
court considers "both the convenience of the parties and
various public-interest considerations." Id. at
62. The Court gives weight to the forum in which the
plaintiff chose to initiate the action. Where a valid
forum-selection clause exists, however, the court is to give
no weight to where the plaintiff chose to sue, id.
at 63, and to "deem the private-interest factors to
weigh entirely in favor of the preselected forums."
Id. at 64. Thus, "a district court may consider
arguments about public-interest factors only."
Id. Accordingly, unless there are
"extraordinary circumstances unrelated to the
convenience of the parties," the district court should
transfer the case to the court specified in the clause.
Id. at 62.
this is a breach of contract action, CECA did not provide
with its complaint a contract between the parties. With its
motion, Metal Impact provided a Supply Agreement. Doc. 6-1.
The Supply Agreement provides that CECA would agree to
purchase all products listed in a schedule attached to the
agreement from Metal Impact. The contract contains a choice
of law and forum selection clause that provides:
Choice of Law and Forum. This Agreement shall be
deemed to have been made in the State of Illinois and shall
be subject to, and be governed by, the laws of the State of
Illinois, and no doctrine of choice of law shall be used to
apply any law other than that of the State of Illinois. CECA
and MIS hereby irrevocably consent and submit to the
exclusive jurisdiction of the state courts of Cook County,
Illinois, and the federal courts for the Northern District of
Illinois, for all matters under or related to this Agreement.
The parties hereto further agree that proper service of
process on a party may be made on an agent designated by such
party in the State of Mississippi or by certified mail,
return receipt requested.
Id. at 3, ¶ 13. Metal Impact asserts that this
provision is a valid forum-selection clause.
response was filed almost a week after it was due.
See L.U. Civ. R. 7(b)(4). CECA neither requested an
extension of time to file its response nor did it seek
permission to file an out of time response. For that reason
alone, Metal Impact's motion is granted.
CECA's arguments in opposition to transfer are without
merit. CECA first contends that the Supply Agreement does not
control. This is a breach of contract action. However, CECA
has not provided the Court with any other contract between
the parties. CECA argues that the Supply Agreement merely
controls the price of the parts it orders from Metal Impact
and that its cause of action is for a breach in the
manufacturing orders it placed.CECA makes the strange argument
that Metal Impact does not "produce any goods" but
is instead a "manufacturer." Memo, in Resp. Doc. 10
at 6. That argument is obviously wrong. A manufacturer is one
who manufactures goods. See Miss. Code Ann. §
75-2-105 ("'Goods' means all things (including
specially manufactured goods) which are movable . .
. .") (emphasis added). The Supply Agreement controls
the purchase of the parts CECA ordered from Metal Impact.
Supply Agreement at 1, ¶ 2 ("CECA shall
purchase all impact requirements from [Metal Impact]
for the products....) (emphasis added).
next argues that the Supply Agreement is a contract of
adhesion and that the forum-selection clause is
unconscionable. It asserts that Metal Impact presented the
Supply Agreement as part of the price list and that CECA did
not have an opportunity to negotiate it.
contract of adhesion is a contract "drafted unilaterally
by the dominant party and then presented on a
'take-it-or-leave-it' basis to the weaker party who
has no real opportunity to bargain about its terms. Such
contracts are usually prepared in printed form, and
frequently at least some of their provisions are in extremely
small print." E. Ford, Inc. v. Taylor, 826
So.2d 709, 716 (Miss. 2002) (quoting Bank of Indiana,
Nat'l Ass'n v. Holy-field, 476 F.Supp. 104, 108
(S.D.Miss. 1979) (internal quotation marks omitted).
"Contracts of adhesion are not automatically
unconscionable." Caplin Enterprises, Inc. v.
Arrington, 145 So.3d 608, 615 (Miss. 2014).
"However, such a finding 'makes an argument
targeting a provision for a substantive unconscionability
review easier to prove .... [Thus, it] can make a facially
oppressive term presumptively invalid.'"
Covenant Health & Rehab, of Picayune, LP v. Estate of
Moulds ex rel Braddock, 14 So.3d 695, 701 (Miss. 2009)
(quoting Vicksburg Partners, L.P. v. Stephens, 911
So.2d 507, 523 (Miss. 2005)).
presents no evidence that this a contract of adhesion. CECA
itself is a business entity, and it does not show how its
bargaining position is less than that of Metal Impact.
Moreover, were the Supply Agreement a contract of adhesion,
CECA does not establish that the clause is unconscionable.
"A forum-selection clause is 'unconscionable only
where the stronger party's terms are unnegotiable and the
weaker party is prevented by market facts, timing or other
pressures from being able to contract with another party, on
more favorable terms or to refrain from contracting at
all.'" Mount Carmel Ministries v. Seaway Bank
& Tr. Co., No. 2:14-CV-184-KS-MTP, 2015 WL 13375901,
at *2 (S.D.Miss. Sept. 3, 2015) (quoting East Ford, Inc.
v. Taylor,826 So.2d 709, 716 (Miss. 2002)). CECA's
only assertion in this regard is that, to find another