United States District Court, Eastern District of Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT’S MOTION TO TRANSFER VENUE (DOC. #8)
SEAN F. COX UNITED STATES DISTRICT JUDGE
This is a commercial contract case. Plaintiff Avalon Technologies, Inc. (“Plaintiff” or “Avalon”) alleges that Defendants EMO-Trans, Inc. (“EMO”) and Air Canada (“Air Canada”) are strictly liable for damages that Plaintiff’s property sustained during its shipment from the United States to Ireland in July 2014. (Compl., Doc. #1).
This matter is before the Court on Defendant EMO’s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a). (Doc. #8). The motion has been fully briefed by the parties. The Court finds that the issues have been adequately presented in the parties’ briefs and that oral argument would not significantly aid in the decisional process. See E.D.Mich. LR 7.1(f)(1). The Court therefore orders that the motion will be decided upon the briefs. Because the Court finds that the forum selection clause relied on by Defendant is unenforceable under the Montreal Convention, the Court shall DENY Defendant’s motion.
A. The Parties’ Business Relationship
Avalon Technologies, a Michigan corporation, distributes computer equipment for Dell, Inc. (Compl. at ¶ 7). In or around June 2014, Avalon purchased a number of Dell servers and related equipment that it endeavored to sell to Groupon, Inc. in Dublin, Ireland. (Compl. at ¶ 8).
EMO is a global logistics and freight forwarding company that has a branch office near Detroit Metro Airport. (Compl. at ¶ 1). Avalon hired EMO to arrange for the shipment of approximately $7.5 million worth of Dell computer equipment from Michigan to Ireland. The parties had several communications and ultimately came upon an agreement for EMO to ship Avalon’s computer equipment to Ireland via Air Canada. The parties’ agreement is memorialized, at least partially, in a July 25, 2014 Invoice. (“Invoice, ” attached to Compl. at Ex. H).
On the back of EMO’s July 25, 2014 Invoice to Avalon were EMO’s Terms & Conditions of Service. (Compl. at ¶¶ 25-26; Compl. at Ex. I; Def.’s Mo. at Ex. A). Listed in EMO’s Terms & Conditions of Service is a forum selection clause:
21. Governing Law; Consent to Jurisdiction and Venue. These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of NY and/or Nassau County without giving consideration to principals [sic] of conflict of law. Customer and Company
(a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of NY and/or Nassau County;
(b) agree that any action relating to the services performed by Company shall only be brought in said courts;
(c) consent to the exercise of in personam jurisdiction by said courts over it, and
(d) further agree that any action to enforce a judgment may be instituted in any jurisdiction.
(EMO Terms, Def. Mo. at Ex. A).
Among other things, Avalon alleges that it paid EMO to secure insurance for the full value of Avalon’s computer equipment. (Compl. at ¶ 36). Avalon alleges that EMO did not procure the proper insurance. (Compl. at ¶ 37). Avalon claims that when the equipment was finally delivered to Groupon in Ireland on July 31, 2014, “it was determined that all 196 of the packages in which the Equipment were shipped were wet, crushed on all sides, ‘V[ery] Badly Damaged’ . . . .” (Compl. at ¶ 38). Groupon declined to accept the equipment, but Dell still ...